PRESIDENTIAL RECORDINGS AND MATERIALS PRESERVATION ACT

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• Publication Date: December 9, 1974
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Approved For Release 2001/11/01 : CIA-R P76M00 27R00070017Il021-3
S 20814 CONGRESSIONAL RECORD- SENATE December 9, 1974
mind, which persons were felt both to have
committed horrible acts, and who had es-
caped punishment for such acts.
The fact that this treatment is visited
solely upon former President Nixon, where
whatever justification for the publication of
his papers exists as to him exists equally as
to other public officials, including Congress-
men, is evidence of its individual, punitive
aspect. Indeed, specifically designating an
individual as an object of supposedly regu-
latory legislation is one of the indications of
a bill of attainder. See United States v.
Brown, 381 U.S. at 447.
Thus, the passage of S. 4016 In this climate
would raise serious questions as to its legiti-
mate purpose and would instead subject it
to attack as a bill of attainder.
VII. CONCLUSION
S. 4016, which was conceived and developed
in haste following the pardon of Mr. Nixon, is
fraught with a number of substantial Con-
stitutional infirmities. The bill is of ex-
tremely dubious validity.
Mr. ERVIN. I wish to say that I was
opposed to the House-passed amend-
ments.
The PRESIDING OFFICER. The in-
itial 2 minutes have expired.
Mr. ERVIN. May I have 1 more min-
ute?
As a realist, I have had to compromise
with myself by rejecting the worst House
amendment and concurring in the least
harmful. I think that the business of es-
tablishing study commissions for things
that Congress ought to study itself is not
very wise.
Mr. President, has final action been
taken?
The PRESIDING OFFICER. The Sen-
ator is correct.
Mr. ERVIN. Mr. President, I ask unan-
imous consent that the Senate return to
executive session.
Mr. GRIFFIN. Mr. President, I object.
I suggest the absence of a quorum.
Mr. ROBERT C. BYRD. Mr. President,
will the Senator withhold?
Mr. GRIFFIN. Yes.
Mr. ROBERT C. BYRD. Mr. President,
the Senate never went into legislative
session. The request was "as in legislative
session."
The PRESIDING OFFICER. The Sen-
ator from North Carolina did ask unani-
mous consent that the Senate go into leg-
islative session.
Mr. ROBERT C. BYRD. I am sorry; I
did not understand that.
Mr. GRIFFIN. Mr. President, I suggest
the absence of a quorum.
The PRESIDING OFFICER. The clerk
will call the roll.
The second assistant legislative clerk
proceeded to call the roll.
Mr. GRIFFIN. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered. Who yields
time?
EXECUTIVE SESSION
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that the Senate
return to executive session.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. ROBERT C. BYRD. Mr. President,
will the Senator from Nevada yield me
30 seconds?
Mr. CANNON. I yield.
NUCLEAR REGULATORY COMMIS-
SION-NOMINATION REFERRED
TO COMMITTEE
Mr. ROBERT C. BYRD. Mr. President,
I ask unanimous consent that the nomi-
nation of Mr. William A. Anders, of Vir-
ginia, to be a member of the Nuclear
Regulatory Commission, be no longer
held at the desk, but that it be referred
to the appropriate committee.
The PRESIDING OFFICER. Without
objection, it is so ordered.
NOMINATION OF NELSON A. ROCKE-
FELLER TO BE VICE PRESIDENT
OF THE UNITED STATES
The Senate continued with the consid-
eration of the nomination of Nelson A.
Rockefeller to' be Vice President of the
United States.
Mr. GOLDWATER. Mr. President, the
nomination of Nelson Rockefeller to be
Vice President has presented me with one
of the most difficult decisions I have ever
confronted as a Member of the Senate.
Because of this, I ask unanimous con-
sent to place in the RECORD a letter I
sent to President Ford explaining why I
cannot support his nominee.
There being no objection, the letter
was ordered to be printed in the RECORD,
as follows:
U.S. SENATE,
Washington, D.C., December 9, 1974.
The PRESIDENT,
The White House,
Washington, D.C.
DEAR MR. PRESIDENT: Party loyalty is im-
portant to me. I have always tried to sup-
port the proposals and policies of the Repub-
lican Presidents who have held-office during,
my terms in the United States Senate. I ap-
preciate all your. reasons for choosing Nelson
A. Rockefeller to be your Vice President.
I have great admiration for Governor
Rockefeller. He is a man of wide experience
and many talents. He has conducted himself
magnificiently during the drawn-out con-
firmation hearings before both the Senate
and House Committees.
When I met with Mr. Rockefeller after you
announced your decision I told him that I
expected to be able to support his confirma-
tion. I assured him that I had forgiven him
for his non-support of my candidacy in 1964,
and that I harbored no resentment against
anyone for what happened so long ago.
My inclination then was to cast my vote
for confirmation, but recent disclosures have
forced me to re-examine that earlier decision.
It is now apparent to me that Mr. Rocke-
feller did in effect use his own personal money
to accomplish the purchase of political power.
I am not questioning Mr. Rockefeller's mo-
tives nor am I suggesting that he made any
improper use of the political leverage avail-
able to him as a result of his gifts and loans
to his political associates.
In my opinion, there exists in this country
a strong suspicion that the tremendous finan-
cial power of the Rockefeller family might
have a corrupting influence on the political
process. The support for Mr. Rockefeller in
Arizona is very low. I have received some
4,000 communications from Republicans and
not more than 20 percent have expressed
support for Mr. Rockefeller.
My decision in this matter is made even
more difficult by the fact that when I ap-
proached Mr. Rockefeller, soliciting funds
from the Rockefeller Foundation to assist the
Arizona Historical Foundation, of which I
am president, he told me that he had nothing
to do with the Foundation, but made a
personal contribution of $5,000. It is my
understanding that he also made a personal
contribution tocreate a so-called "Goldwater
Chair" at one of the Arizona state univer-
sities. I feel that in this letter to inform
you of my decision I would be derelict in my
duty to my conscience if I did not mention
these two examples of Mr. Rockefeller's
generosity.
Mr. President, I am torn between my desire
to abide by your wishes and my feelings that
our nation and our party will be better served
by the selection of a younger man-one who
would not carry the burden of suspicion
which is clearly in the public mind regarding
the power of the Rockefeller fortune.
I have concluded that I cannot vote to
confirm your present choice for Vice
President.
Respectfully,
BARRY GOLDWATER.
Mr. HELMS. Mr. President, in previous
statements I have addressed myself to
some basic issues which are inherent in
the nomination of Mr. Rockefeller, and
perhaps would arise with no other man.
I have discussed the controversy which
surrounds him and his interconnection
with the powerful family dynasty in part
I of this series. In part II, I discussed
the case of L. Judson Morhouse, and how
Mr. Morhouse was central to Mr. Rocke-
feller's early political ambitions and suc-
cess, a fact which seemed to blind Mr.
Rockefeller to certain traits in the char-
acter of Mr. Morhouse which ought to
have been clearly apparent to any man
of ordinary judgment. Instead of taking
steps to investigate fully and insure that
the laws of New York were impartially
enforced, no matter what the embarrass-
ment to his administration and to Mr.
Rockefeller's Presidential ambitions, Mr.
Rockefeller tried to buy Mr. Morhouse's
honesty through gifts and insider deals,
apparently failing to realize that virtue
is not a commodity to be bought and
sold.
It is a fair conclusion, therefore, that
Mr. Rockefeller unwittingly corrupted
Mr. Morhouse's sense of values with his
lavish gifts, and directly contributed to
the personal tragedy of his top - political
aide. Indeed, the physical deterioration
which accompanied the collapse of Mr.
Morhouse's career may well have been
an outward sign of the moral sickness
which festered In his soul. To all of these
moral issues, Mr. Rockefeller seems im-
pervious. His repudiation of Mr. Mor-
house before the Rules Committee can
scarcely be viewed as other than ?a dis-
tortion of history that seems intended
to mislead the Senate about his rela-
tionship with a man upon whom he
conferred benefits ultimately worth at
least $$900,000. He is obviously insensi-
tive toward the inverted morality
of making gifts to keep a man out of
"temptation," and shows no inclination
toward assuming any responsibility for
contributing to that man's fall. Finally,
his insistence that the corrupt transac-
tion between Morhouse and the race-
track crowd took place a month later
than the facts will allow, and in a con-
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in the course of which discussion with inti-
iuates and friends often plays an integral
part. See United States v. Nixon, 42 U.S.L.W.
at 5245 & n. 17.
It has been long recognized that enforced
public exposure of such inherently private
aspects of "free speech" has a stifling effect.
Courts have not ruled on a First Amend-
ment challenge to forced revelation of the
unedited stream of individual's comments,
public and private for an extended period of
time, They have, however, dealt with what
must be considered the less severe intrusion
of an attempt to discover a simple list of the
persons who belong to a political organiza-
tion In doing so, they have found the privacy
of political association indispensable to the
viability of the system of free thought and
speech established under our Constitution.
NAACP v. Alabama, 375 U.S. 449 (1968).
If is hardly a novel perception that com-
pelled disclosure of affiliation with groups
engaged in advocacy may constitute as effec-
tive a restraint on freedom of association as
the forms of governmental action upon the
particular constitutional rights there in-
volved. This Court has recognized the vital
relationship between freedom to associate
and privacy in one's association." [375 U.S.
at 4.32] See also Shelton v. Tucker, 364 U.S.
479 (1960).
c * : s s
A:- stated by Justice Brennan, ", . . inhi-
bition as well as prohibition against the ex-
ercise of precious First Amendment rights is
a power denied to government." Lamont v.
Postmaster General, 381 U.S. 301, 809 (1965).
The same principle must be applied to leg-
islative attempts to monitor any man's
daily political expression Cf. Eastern Rail-
road Presidents Conf. v. Noerr Motor Freight,
Inc., 366 U.S. 127 (1961). The "chilling ef-
fect" of the knowledge that every political
utterance or writing, whether tentative or
experimental, will be exposed to public scru-
tiny would be an intolerable inhibition upon
any man's thought and political development.
Yet this would be precisely the effect of
S. 4016. It seeks to obtain and make avail-
able to the public the voluntarily-kept, daily
record of a man's tenure in the Presidency.
Were the subject anyone other than the
former President, were the times any other
than these, the extent to which such a
scheme undermines the free thought and
speech protected by the First Amendment
would be obvious.
While the theory that every thought of the
man occupying the White House is legitimate
public business has initial appeal, it is at war
with the fact that development of presi-
dential political thought develops no dif-
ferer_tly from that of any man and is in-
hibited by the same factors.
The electorate has the right, and indeed
the political duty, to monitor the conduct of
public officials. It is a duty, however, to
monitor the decision made, not the cption
considered. There is nothing in the Consti-
tution, or in the political theory which it
embodies, which argues that officialdom must
live in a goldfish bowl. Cf. E.P.A. v. Mink, 410
U.S. 73 (1973); Carl Zeiss Stiftung V. V.E.B.
Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966).
Rather it Is anticipated that those elected to
public office will develop and modify their
political beliefs and understandings in the
same manner as private citizens, that is,
through both public debate and private con-
ference.
Although in the case of executive officials
the constitutional interest guaranteed by
the First Amendment is similar to that en-
compassed by the term "Executive Privilege,"
and the two in this context are complemen-
tary, it is separable In both root and appli-
cation. While Executive Privilege has its
foundation in practical necessity, behind it
rests the more general personal right of the
chief executive.,as an individual to think and
talk freely among his intimates. Knowledge
that notes and tape recordings made for por-
sonai use can, by whatever means, be cc n-
demned and published will inevitably strait
this process. A President as much as any man
is guaranteed freedom from such constrai at.
As stated by Judge Learned Hand.
e s * -
[The First Amendment] presupposes th,it
right conclusions are more likely to be
gathered out of a multitude of tongues, than
through any kind of authoritative selection.
To many this is, and always will be, folly;
but we have stated upon it our all. United
States v. Associated Press (52 F. Supp, 362,
372 (S.D.N.Y.,1943).
* s
To the extent that evidence of criminal
wrongdoing is suspected, the Constitution
provides formal judicial mechanisms for the
discovery of relevant material. United States
v. Nixon, supra. If legislative investigation
is in order, relevant material can there too be
obtained. But the wholesale acquisition of a
man's tape recordings and notes, for the
simple satisfaction of public curiosity, how-
ever crest, is inimical to the First Amei d-
ment's guarantees. While the material sought
is of unusual Interest to the public, it is not,
and was not when compiled, public prop-
erty. If it can be taken from any man for the
purposes of public dissemination, it can be
taken from every man. If it can be taken
from a former President, our system of
political development through free expres-
sion is stifled at precisely the point at which
it is supposed to culminate.
V. FIFTH AMENDMENT
Although President Ford pardoned Richs;d
Nixon for all crimes committeed during Mr.
Nixon's tenure as President, the Presidert:'s
pardon power under Art. II, 12 runs only to
"offenses against the United States." This,
Mr. Nixon remains subject to state criminal
prosecution for any crime committed during
his tenure as President. For example, alleia-
tions have been publically aired, althouh
they are as yet unsubstantiated, that the
former President was involved in crimiial
conspiracy and tax evasion punishable under
California law.
To the extent that the publication of in-
formation involuntarily obtained under the
proposed bill will place in the hands of st8 to
officials evidence which might tend to in-
criminate the former President, severe Fifth
Amendment questions are raised.
"Whenever the Court is confronted with
the question of a compelled disc:osure that
has an incriminating potential, the judic: al
scrutiny, in invariably a close one." Cali-
fornia v. Byers, 402 U.S. 424, 427 (197;:).
Since the Fifth Amendment protects an in-
dividual not only against compelled se: (-
incriminatory testimony but also agafrst
compelled disclosure of potentia:ly incrim-
inatory private papers, Boyd v. United Stat.err,
116 U.S. 616 (1886), those questions are
raised here.
The Supreme Court has held unconstit-a-
tional requirements that individuals report
potentially incriminating information to t_2e
government. Marchetti v. United States,
390 U.S. 47 (1968); Grosso v. United States
390 U.S. 62 (1968); Haynes v. United States,
390 U.S. 85 (1968). The government, of
course, has various legitimate needs for pri-
vate information, and it can, under proper
circumstances, require its submission. Co.,-
stitutionality under the Fifth Amendment
however, requires that the reporting or din-
closure requirement not be aimed at a
"highly selective group Inherently suspect
of criminal activities." California v. Bye-.'s,
supra, at 430. See also Albertsori, V. SACK,
382 U.S. 70 (1965). The mechanism the gov-
ernment chooses for attaining involuntary
disclosure is, of course, essentially irrelevant
to the Fifth Amendment interest involved,
520813
so the fact that S. 4016 contemplates con-
demnation and then public disclosure as op-
posed to the means used in the cited cases
is not important.
With regard to S. 4016, the bill could not
be more narrowly confined in terms of selec-
tively. It is aimed at and solely applicable
to one man-Richard Nixon.
While most of the cases cited above have
involved narrow requests for specific in-
formation within certain defined areas, the
constitutional infirmity of such statutes is
surely not removed by providing that the
information forcibly obtained by the govern-
ment be all encompassing. The problems
with such a bill addressed to a single "sus-
pect" individual are augmented rather than
decreased.
The extreme breadth of the information
sought by S. 4016 renders this bill the type
of government fishing expedition which the
Fifth Amendment privilege against self-
incrimination was originally designed to
protect against.
VI. BILL OF ATTAINDER
Article I, Section 9, clause 3, of the Con-
stitution states that no bills of attainder
shall be passed. This express prohibition on
the power of the Federal government to en-
a_-t statutes has been broadly interpreted
by the courts. Thus, in Ex parte Garland?
4 Wall. (71 U.S.) 33 (1867), the Supreme
Court struck down a statute which required
that attorneys take an oath that they had
taken no part in the Confederate rebellion
against the United States before they could
practice in federal courts. The Court found
that "exclusion from any of the professions
or any of the ordinary avocations of life for
past conduct can be regarded in no other
light than as punishment for such conduct."
Id. at 377.
In United States v. Lovett, 328 U.S. 303
(1946), the Court struck down a rider to an
appropriations act which forbade the pay-
ment of any compensation to three named
persons then holding office by executive
appointment.
What these cases have in common with
each other and with S. 4016 is the use of law-
making powers to punish without a trial an
individual or small groups of individuals for
certain conduct. What constitutes punish-
ment is to be liberally interpreted to effect
the remedial purpose of the bill of attainder
clause in the Constitution. Thus, denying the
ability to practice law before federal courts
was punishment, as was withholding person's
salaries.
On its face, S. 4016 may not .demonstrate
a punishing purpose, but such was also true
of the statute in Garland. Yet no one can
deny the punishing effect of S. 4016. The
punishment meted out is the baring of Mr.
Nixon's most personal papers and conversa-
tions to public scrutiny and ridicule. Indeed,
in terms of the suffering it will cause, the
effect of such punishment seems much
greater than that of merely forbidding a law-
yer from practicing law before the federal
courts, forcing federal employees to find a
new job, or forbidding Communists from
holding union office, see United States v.
Brown, 381 U.S. 437 (1965). In any case, the
damage to reputation and earning capacity
is a cognizable effect of the punishment,
and are acknowledged as evidence of punish-
ment by the Court. United States v. Lovett,
328 U.S. at 314.
No doubt the sponsors of S. 4016 are able
to recite supposed legitimate bases for the
bill, but again each of the laws struck down
by the Supreme Court as bills of attainder
were defended on the basis that they were
exercises of legitimate regulatory powers and
not bills of attainder. The Court, however,
looked beyond the self-serving justifications
for the laws to the motive and underlying
purpose of Congress. In each case the Court
found an environment where legislation was
conceived with specific persons or groups in
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 S20812
. - - - _ - ClONG1kI SSIONAL RECORD - SENA'ti Dece n ber? 9, 1974
teed right of privacy with respect to all per-
sons whose conversations were the subject of
the tape recordings to be condemned and
made public by the bill.
Section 6 of the bill gives to the Adminis-
trator authority to release the tape record-
ings to the public subject to only three re-
'frictions. These restrictions are: (1) "in-
t:ormation relating to the Nation's security
snail not be disclosed" (section 6(1)); (2)
there shall be no release if "the Office of
Watergate Special Prosecution Force certifies
it writing that such disclosure or access is
likely to impair or prejudice an indivdual's
right 'to a fair and impartial trial" (section 6
(3) (A) ); and (3) there shall be no release
'if a court of competent jurisdiction deter-
mines that such disclosure or access is likely
to impair an individual's right to a far and
impartial trial" (section 6(3) (B) ).
None of these restrictions serves to protect
the right of privacy. Thus, we have virtually
unchecked authority in the Administrator to
release the tapes. As discussed below, (1)
there is a privacy interest in the tapes which
is recognized by the courts as constitution-
ally protected; (2) when Congress legislates
to that such a fundamental constitutional
right may be affected, it must utilize the
narrowest of means to achieve its objectives
and cannot leave the protection of the rights
to the unrestricted discretion of others; and
13) this bill represents a broad and un-
checked grant of authority affecting a fun-
damental right and therefore is constitu-
tionally impermissible.
A. Right to Privacy-a constitutional
right.
There is a right to privacy which has been
recognized by the courts in many contexts.
Thus, it has been found in the First Amend-
ment, NAACP v. Alabama, 357 U.S. 449
L958), in the Fourth Amendment, Weeks v.
United States, 232 U.S. 383 (1914); Silver-
thorne Lumber Co. v. United States, 251 U.S.
385 (1920) ; Katz v. United States, 389 U.S.
347 (1967), in the Fourth and Fifth Amend-
znents, Boyd v. -United States, 116 U.S. 616
(1886), in the Ninth Amendment, Griswold v.
Connecticut, 381 U.S. 479 (1965). (Gold-
berg, J., concurring), and under a penumbra
of the First, Third, Fourth and Fifth Amend-
rnents, Griswold v. Connecticut, 391 U.S. 479
(1965). See, generally, Roe v. Wade, 310 U.S.
113,152-53 (1973).
Concerning the specific material covered
by Section 8 of the bill-the tapes-it is clear
from the language of the Supreme Court that
the conversations of the persons recorded on
the tapes are the type of material encom-
passed by the right of privacy. In Katz,
supra, the Court stressed that the expecta-
tions of persons define the limits of the pro-
tection afforded by the Fourth Amendment.
"What a person knowingly exposes to the
public, even in his own home or office, is not
a subject of Fourth Amendment protec-
tion. . . . But what he seeks to preserve as
private, even in an area accessible to the
public, may be constitutionally protected."
Katz v. United States, 389 U.S. at 351-52
(citations omitted) .
*
It is clear that all persons whose conver-
sations were recorded expected that their
conversations would not be made public.
Most of those who discussed matters in the
executive office were actually unaware that
their conversations were being recorded, and
as to those who were aware, even they be-
lieved that the recordings would be pro-
tected from public exposure.
In Boyd v. United States, supra, the Court
gave a sweeping definition of the protection
afforded under the combined coverage of the
Fourth and Fifth Amendments which it de-
rived from the discussion by Lord Camden in
Entick v. Carrington and Three Other King's
Messengers, 19 Howell's State Trials 1029
(1765).
"The principles laid down in this opinion
affect the very essence of constitutional
liberty and security. They reach farther than
the concrete form of,the case there before the
court with its adventitious circumstances;
they apply to all invasions on the part of the
government and its employees of the sanctity
of a man's home and the privacies of life. It
is not the breaking of his doors, and the
rummaging of his drawers, that constitutes
the essence of the offense; but it is the in-
vasion of his indefeasible right of personal
security, personal liberty and private prop-
erty; where the right has not been forfeited
by his conviction of some public offence-
it is the invasion of his sacred right which
underlies and constitutes the essence of
Lord Camden's judgment. Breaking into a
house and opening boxes and drawers are
circumstances of aggravation; but-any forci-
ble and compulsory extortion of a man's
own testimony or of his private papers to be
used as evidence to convict him of crime
to to forfeit his goods, is within the condem-
nation of that fudgment. In this regard the
Fourth and Fifth Amendments run almost
into each other." 116 U.S. 630 (emphasis
added).
b * Y F 4
The making public of the taped conversa-
tionsof men who believed their confidences
were secure would also be a "forcible and
compulsory extortion of a man's own testi-
mony", and equally abhorrent to the prin-
ciples of the Fourth and Fifth Amendments.
The bill's forced disclosure of the tapes
dictates another "invasion on the part of the
government" into "the privacies of life."
The essence of the passage quoted above is
that the Fourth and Fifth Amendments pro-
tect privacy, and it is the unwarranted inter-
ference with that privacy which constitutes
the gravamen of the offense, not the par-
ticular manner in which the invasion is ac-
complished or the form in which the privacy
interest appears. It would be equally abhor-
rent for the Congress to order a general
invasion of the privacy of the conversations
of persons in the executive offices as it was
for the King's Messengers, utilizing a general
warrant, to invade the privacy of a man's
home.
B. Limits on Congressional Relation of
Constitutionally Protected Freedom.
As is demonstrated above, the right. to
privacy is a constitutionally protected free-
dom. From that follows certain consequences
when Congress proposes to take action that
many affect that freedom.
b * * * *
"When certain 'fundamental rights' are in-
volved, the Court held that regulation limit-
ing these rights may be justified only by a
'compelling state interest,' . and that
legislative enactments must be narrowly
drawn to express only legitimate state inter-
ests at stake." Roe v. Wade, 410 U.S. 113, 155
(1973) (citations omitted).
Although the Court speaks of "state" in-
terests, this applies equally to Congress legis-
lating the federal area. Aptheker v. Secretary
of State, 378 U.S. 500, 507-09 (1964).
It should be noted that whether the right
of privacy derives from the First Amend-
ment, United States v. Robel, 389
U.S.
258
(1987);
NAACP v. Alabama, 377
U.S.
288
(1964);
NAACP V. Button, 371
U.S.
415
(1963);
the Fourth Amendment, Sanford v.
Texas,
379 U.S. 476 1965; Weeks v. United
States,
232 U.S. 383 (1914); the Fifth
Amendment, Aptheker v. Secretary of State,
378 U.S. 500 (1964) ; the Ninth Amendment
or a penumbra of the Amendments, Roe v.
Wade, 410 U.S. 113 (1973) ; Griswold v. Con-
necticut, 381 U.S. 479 (1965): the result is
the same--it must be carefully protected
againsteoverbroad assertions of authority.
The limitation imposed may be expressed
as a restriction of Congressional fiction to
"narrowly drawn" statutes, Roe v. Wade,
supra, or it may be an attack on unfettered
discretion bestowed on others. Kunz v. New
York, 340 U.S. 290 (1951) ; Cantwell v. Con-
necticut, 310 U.S. 296 (1940). Cf. Stanford v.
Texas, 379 U.S. 476 (1965); Weeks v. United
States, 232 U.S. 383 (1914).
The lesson of all these. cases is clear. Fun-
damental rights are too precious to have
their protection left to the unfettered dis-
cretion of public officials. The emphasis
placed on this rule is illustrated by Katz v.
United States, 389 V.S. 347 (1967), where a
search (electronic listening device attached
to telephone booth) by law enforcement offi-
cers was held improper because there was no
Judicial restraint imposed, even though the
conduct did not exceed that which would
have been permitted under judicial author-
ization.
C. Section 6 of S. 4016 is Constitutionally
infirm.
From part A of this discussion we see that.
there is a constitutionally protected privacy
interest in the tapes. In part B it was shown
that where such a constitutionally protected
interest is present, there are certain limita-
tions imposed on legislation. Thus, there may
be interference with the privacy right only
in the case of a "compelling interest," and
the statute must be drawn in the narrowest
manner that will further that interest.-Dele-
gations of authority must be carefully cir-
cumscribed so that the protection of the
right is not left to the mercy of the unfet-
tered discretion of a public official. Section 6
fails to meet any of these requirements.
There is first the question of what "com-
pelling" interest, is asserted to justify this
intrusion into the privacy of the subjects of
the tapes. No interest is asserted in the bill.
If the interest is that of increasing public
knowledge of the events that transpired in
the executive offices, then that would not
suffice to overcome the privacy interest. See
E.P.A. v. Mink, 410 U.S. 73, 87 (1973), and
cases cited therein, regarding the protection
of executive discussions. .
This brings us to the second point, that
whatever valid interests are to be served can
be achieved only by a statute that has a
narrower focus. Thus if there are valid needs
for the information, for example, as evidence
in a criminal proceeding, a valid statute
could be drawn with that limitation. In fact,
it would appear that release in that case
would be available regardless of the exist-
ence of a statute. See United States v. Nixon,
- U:S. - (1974), 42 U.S.L.W. 5237 (de-
cided July 24, 1974) ; Nixon v. Sirica, 487 F.
2d 700 (D.C. Cir. 1973). If public informa-
tion is the goal of the statute then there is
already a more narrowly drawn statute on
the books. See The Freedom of Information
Act, 6 V.S.C. ? 552.
Finally, is the requirement of a carefully
circumscribed range of discretion. 'However.
the bill as it is written vests almost com-
pletely unbridled discretion in the Adminis-
trator of General Services to release the
tapes. This delegation of authority provides
absolutely no protection for privacy rights
and thus violates the final requirement for
legislation in this area.
N. FIRST AMENDMENT RIGHTS
It is submitted that the right to unfet-
tered speech is not lost as a consequence of
election to high government office. No one,
would deny a President's right to speak freely
in public debate.
Equally as crucial to the principle of free
speech as public advocacy is the private for-
mulation of political thought and perspec-
tive. This is a process of experiment and de-
velopment. It is a process of trial and error,
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December 9, 1974 CONGRESSIONAL RECORD -SENATE
will be prejudiced, or if a court determines
that a person's right to a fair and flfipartial
trial would be prejudiced.
'rho scheme envisaged by S. 4016, there-
fore, would In effect reverse both United
States v. Nixon, supra; and Committee for
Nuclear Responsibility; Inc. v. Seaborg, supra.
This is so first because Section 3(b) directs
that materials simply "shall . be made
availi,ble for use in any judicial proceed-
Ing.... "No provision is made for in camera
inspection which the Court required in both
Nixoiy and Seaborg. In fact the clear intent
of the language is to do away with that judi-
cially derived requirement. The decision in
Nixon. however. is constitutionally based,
and the requirement of an in camera inspec-
tion is the result of a careful balancing of
competing constitutional interests. 42
U.S.L.W. at 5244-45. This careful balancing
is destroyed by S. 4016, and Instead all. mate-
rial subpoenaed or otherwise shall be made
available. Not only does S. 4016 eliminate the
constitutional balancing the Supreme Court
required in criminal cases, but it also
repuciates the decision in Seaborg, a civil
case.
In Seaborg the District of Columbia Cir-
cuit acknowledged the importance of con-
fidentiality in contributing substantially to
the effectiveness of government decision-
makiig. 463 F. 2d at 792. Thus, a demand for
materials in discovery proceedings would not
defeat: Executive Privilege, rather the court
would inspect the material to see if the priv-
ilege was rightfully invoked. If it was,
then. the. material would not be produced,
even if relevant. See Committee for Nuclear
Responsibility, Inc. v. Seaborg, 463 F. 2d 796,
799 (D.C. Cir. 1971). Thus, S. 4016 not only
eliminates the need for in camera inspection,
but more importantly it overrules the hold-
ing that material for which Executive
Privilege is rightfully claimed is Indeed priv-
ileged from production in a civil case. Again
S. 4016 attempts to overrule judicial, consti-
tutional decision by statute.
What S. 4016 does to violate Executive
Privilege vis-a-vis judicial demands for
presidential materials, however, is minor
compared to its provision for general public
access to all the materials except national
secur, ty information. To give authority to
the Administrator to allow general public
access would be to negate Executive Privilege
altogether with no concomitant public inter-
est being served in its stead, rather catering
only ,o the gross curiosity of the public. To
open all the most personal aspects of any
person's life to the public for no legitimate
reaso.a is a violation of privacy if nothing
else, but when that person is also a President
it is a most virulent attack on the Separation
of Powers.
In United States v. Nixon, supra, the
Supreme Court unanimously held that presi-
dential communications are "presumptively
privileged."
r a t r ?
"Tl:e expectation of a President to the con-
fidentiality of his conversations and corres-
pondence, like the claim of confidentiality of
judicial deliberations, for example, has all
the values to which we accord deference for
the privacy of all citizens and added to those
value.i the necessity for protection of the
public interest in candid, objective, and even
blunt or harsh opinions in presidential deci-
sion-making. A President and those who
assist him must be free to explore alterna-
tives in the process of shaping policies and
making decisions and to do so in a way many
would be unwilling to express except pri-
vately. These are the considerations justi-
fying a presumptive privilege for presidential
communications. 42 U.S.L.W. at 5245.
? ? s ? r
'rh. effect of the presumption is to give the
privilege effect until it is challenged by a
particularized demand for certain materials.
Only then is the presumption overcome.
3. 4016's general authority for public access,
]iowever, ignores the presumption and prc-
"ides no opportunity for the invocation of
the privilege.
In short, the constitutionally based
privilege, acknowledged by the Supreme
Qourt and given effect by lower courts, is to
lie eliminated by a mere statute. Becawie
oxecut_ve privilege is constitutionally based,
;iowever, it is not subject to repeal or re-
i;triction by statutes. Rather statutes must
'themselves conform to the constitutional
right of Executive Privilege.
Even commentators who have expressed
a very circumscribed view of Executive
Privilege, for example, Raoul Berger, hate
never suggested that Congress has the power
t.o make each and every presidential paper
and conversation public, willy-nilly without
regard to the confidences upon which may y
huch conversations and papers were based.
:. ather, these commentators have merely
oxpressed the opinion that calls by Coi:-
l;ress for particular materials necessary for
J is consideration of legislation or by the
;:udiciary for relevant evidence have a higher
public interest than the executive's
generalized need for confidential, commu-
nications. This weighing of the conflicting
public interests is precisely the approach
that was utilized in Senate Select Comml,l-
ree v. Nixon, 370 F. Supp. 521, 522 (D. D. C.
:.974). See also Nixon v. Since, 487 F. 2d 70,,
116-18 (D. C. Cir. 1973). And it was rec%,-
nized in Senate Select Committee v. Nixon,
870 F. Supp. at 524, that even Cohgres3'
light to demand information by subpoena is
limited to proceedings to aid of Its legisle;-
I:ive function. The conclusion to be drawn,
therefore, from both the cases and the com-
mentators Is that, there is no authority for
Congress to require the publication of all
presidential papers and conversations. Such
an action would violate the Doctrine of
fieparaLion of Powers and render the Pres--
dent but a servantof Congress.
.The United States Court of Appeals for the
District of Columbia circuit recognized this
full well in Nixon v. Sirica, 487 F. 2d at 715;
We acknowledge that wholesale public
access to Executive deliberations and doet--
inents would cripple the Executive as a
f*-equal branch.
? ? a a r
Such could be the result of S. 4016, and
Ior that reason It is of extremely dubioi:=s
Constitutional validity.
C. Former Presidents' Rights to Invoke
Lxecutive Privilege.
The question may be raised whether a
former President has the authority to Invoke
Executive Privilege for materials generated
during his presidency, but the rationale
behind Executive Privilege and the intere:rt
it serves compels the answer that a former
President may indeed invoke Executive
]Privilege in the same manner as a sitting
President. This is so because the public
interest in the confidentiality of executive
discussions requires that those discussions
remain confidential indefinitely, not to be
publicized as soon as the President leavers
c)ffice, for if these discussions were to be-
come public after the President leaves office,
future discussions with future Presidents
would ever after-be chilled by the knowled?e
that within at least eight years those discu. -
.ions could be public. Viewed another wa`d.
the invocation of Executive Privilege is not
e.o much to protect the content of the par-
t icular discussions demanded as it is to pre-
fect the expectation of confidentiality which
enables future discussions to be free and
crank. That expectation of confidentiality
would be destroyed, and the public intere., t
which It serves with it, if the mere leaving
of office would destroy that confidentialit.1,
As early at 1846 this prb}ciple was recognized
and honored by President Polk. Richardson,
S20811
Messages and Papers of the Presidents, Vol.
IV, 433-34.
Harry S. Truman in 1953, having returned
to private life, was subpoenaed by a House
committee to testify concerning matters
that transpired while he was in office.
Refusing by letter, he explained that to
subject former Presidents to inquiries into
their' acts while President would violate the
separation of powers.
It must be obvious to you that if the doc-
trine of separation of powers and the inde-
pendence of the Presidency is to have any
validity at all, it must be equally applicable
to:a President after his term of office has ex-
pired when he is sought to beexamined with
respect to any acts occuring while he is
President.
'rho doctrine would be shattered, and the
President, contrary to our fundamental
theory of constitutional government, would
become a mere arm of the Legislative Branch
of the Government if he would feel during
his term of office that his every act might be
subject to official inquiry and possible dis-
tortion for political purposes.
The House committee accepted the letter
and did not attempt to enforce the sub-
poena, indicating perhaps its concurrence
with President Truman's claim of privilege.
D. Custody as an Element of the Privilege.
The above discussion has dealt with the
constitutional violation of Executive Priv-
ilege committed by the disclosure provisions
of S. 4018. In addition, however, serious con-
stitutional questions are raised by the mere
custody provisions set forth in the bill. That
is, while it is clear that Executive Privilege
limits 'the ability of Congress or courts to
disclose presidential materials, it may also
be that Executive Privilege extends to at-
tempts merely to wrest custody of privileged
materials from a President or former Presi-
dent even with supposed safeguards against
their disclosure.
There are no cases on point or examples
of similar actions to answer this question,
but the policy considerations are telling to
support a claim that privileged materials
cannot even be wrested from the custody of
the President unless and until a court has
determined that they may at least be exam-
ined in camera.
The policy served by Executive Privilege is
advanced most effectively by maintaining
the custody of the privileged materials in
the person entrusted with the right of as-
serting that privilege, for without custody he
is unable to insure that attempts to-gain ac-
cess to privileged material will be resisted
or tested by the courts. Thus, separation of
custody from the person responsible for
safeguarding the confidentiality of the ma-
terials separates the function from the re-
sponsibility for it in violation of the most
elementary laws of management efficiency.
The President or former President is the one
individual with the interest in assuring con-
tinuing confidentiality; the Administrator,
has-no such Interest-and therefore is not the
proper person to maintain custody. More-
over, the President is the person with the
knowledge of what needs to be maintained
as confidential and what not.
All these considerations suggest that the
President or former President should retain
custody of the privileged materials, and that
a statute which wrests this privileged mate-
rial completely from his control violates the
Separation of Powers by removing executive
material from the executive and by under-
mining the privilege by separating the cus-
todian of the materials from the defender of
the privilege.
Iii. RIGHT OF PRIVACY
Section 6 of S. 4016 presents another con-
stitutional Issue. It would result in an
abridgement of the constitutionally guaran-
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CONGRESSIONAL RECORD -SENATE December 9, 1974
across the board. However, I fail to com-
prehend the distorted logic that resulted
in the recommendation to create yet an-
other commission to pursue this effort.
Two bills on this point are currently
pending in this body (S. 2951 by Senators
BAYH, RIBICOFF, CHILES and PERCY and
S. 4080 by the Senator from Nebraska)
and on October 3, we received assurances
that hearings would be held on the mea-
sures in January or February. Why can
not the Congress assume its responsibil-
ity to deal with this matter directly?
Congress should do its own work on this
matter and should not delegate its re-
sponsibility to yet another study com-
mission.
In title 2, there is an effort to create
a public study commission for the pur-
pose of going into the broad subject of
documents of all Members of Congress
and other officials, as I understand it, to
determine the feasibility of making these
documents government property.
Mr. President, as I just stated, we were
assured during the debate on this bill
that the Committee on Government Op-
erations, early in this coming year and
in the new Congress, would consider that
subject on its broad basis and that the
matter would be treated on a legislative
basis, rather than on the basis of creat-
ing an extensive, a time-consuming and
a natural- and human-resources-ex-
pending operation consisting of a study
commission.
The PRESIDING OFF ICEI;. The Sen-
ator's time has expired.
Mr. HRUSKA. While I object to the
conclusion of title 2 in the bill, it is not
my purpose to hold up the bill. If there
is a disposition on the part of the Senate
to approve it in its amended form, so be
it. But I express the hope that in due
time, in the January coming, there will
be a bill introduced on this subject, that
the chairman of the Committee on Gov-
ernment Operations will hold the hear-
ings contemplated and that one of the
products of any legislation that would be
forthcoming as a result of those hearings,
would result in a repeal of the law which
establishes this commission as contained
in title 2 of this bill. I think that would
make a better, tighter operation for
properly legislating, rather than spread-
ing the subject out in such a fashion
that it will take an interminable length
of time, in addition to the useless ex-
pense which would otherwise be incurred.
I yield the floor. -
EXHIBIT 1
STAFF MEMORANDUM
Re S. 4016, a bill to protect and preserve tape
recordings of conversations involving
former President Richard M. Nixon and
made during his tenure as President, and
for other purposes.
Set forth below is an analysis of the fun-
damental Constitutional issues raised by the
above-noted bill.
1. EMINENT DOMAIN
S. 4016 would condemn all the papers and
materials which constitute the Presidential
historical material of Richard Nixon as de-
fined by Title 44, U.S.C. ? 2101 as well as all
tape recordings of all conversations which
were caused to be recorded by a Federal officer
or employee and which involve either Richard
Nixon or any Federal employee between Janu-
ary 20, 1969 and August 9, 1974.
The power of eminent domain is said to
exist as an attribute of sovereignty separate
from any written constitution. Boom Co v.
Patterson, 98 U.S. 403, 406 (1878). The Fed.
eral power of eminent domain, however, is
limited by the grants of power in the Con-
stitution, so that property may be taken only
for the effectuation of a granted power.
United States v. Gettysburg Electric Ry. Co.,
160 U.S. 668, 679 (1896). This is but a recog-
nition that the Federal government is a gov-
ernment of limited powers, and for property
to be taken for a "public use" by the Fedreal
governs lent, that public use must be one
within the enumerated powers of the Federal
government.
Admittedly, the interpretation of "public
use" for purposes of Federal condemnation
has been broadly construed, United States
ex rel. TVA v. Welch, 327 U.S. 646, 552 (1946),
but this is only to give effect to the Necessary
and Proper Clause. See Corwin, The Constitu-
tion 336 (1973). While certain "Presidential
historical materials" might be justifledly ob-
tained by eminent domain because of a pecu-
liarly public interest, e.g., materials necessary
for the ongoing functions of government, ma-
terial relating to the national security, etc.,
S. 4016 does not attempt to distinguish be-
tween such necessary materials and other
unnecessary materials. Yet the power of emi-
nent domain as a sovereign attribute only
extends to that property which is necessary
to advance the government's legimitate pub-
lic interest. See United States v. Lynah, 188
U.S. 445, 465 (1903). '
Clearly the most personal papers of former
President Nixon would not be necessary for
any legitimate public use, for Presidential
"historical material," as defined by 44 U.S.C.
? 2101, would include not only official papers,
but Christmas cards, personal letters, per-
sonal diaries, etc. Therefore, because all tapes
and all Presidential historical materials are
condemned'by S. 4016, it would seem that the
power of eminent domain is being used here,
at least in part, for other than a public use.
This threatens the constitutionality of the
whole bill despite the fact that the proposal
contains the customary severability clause.
To cure this deficiency it woi)ld appear that
the condemnation of Presidential materials
and tapes must be limited to those particular
materials which are necessary for some
specific reason.
This exercise of eminent domain in S. 4016,
moreover, is of a novel type-extending to
literary property, personal papers, and the
most personal of possessions, indeed the
innermost thoughts of Richard Nixon as he
expressed or recorded them. Not only is the
subject matter of the condemnation novel,
but the extent of it is unique--extending to
every scrap of paper produced in the White
House, personal or official, whether existing
there as a home or office, for over five years.
This is without precedent and contemplates
an invasion of privacvy unparalleled in Con-
gressional history.
In stark contrast to the wholesale condem-
nation proposed by S. 4016 is the approach.
used by Public Law 89-318, 79 Stat. 1185
(1965). There evidence accumulated by the
Warren Commission was to be considered by
the Attorney General in order to determine
which particular items of evidence were
necessary for the United States to retain. The
items so determined were condemned, and
provision was made for just compensation.
This exercise of eminent domain demon-
strates a responsible and constitutional ap-
proach of condemning only that property
necessary for the public use.
II. EXECUTIVE PRIVILEGE
A. Executive Privilege as a Constitutional
Right.
In United States v. Nixon, - U.S. -
(1974) 42 U.S.L.W. 5237, 5244 (decided July
24, 1974), the Supreme Court unanimously
recognized the existence of a constitutionally
based Executive Privilege.
Executive privilege may be considered to
have three aspects-first, with reference to
a judicial demand for information or ma-
terials; second, with reference to a Congres-
sional demand; and third, with reference
to the public at large. Further, the judicial
demand aspect may be separated into cases
where the demand is for evidence relevant
to a criminal trial, e.g., United States v.
Nixon, supra, and cases where the demand
is merely for discovery material in a civil
case, e.g., Committee for Nuclear Responsi-
bility, Inc. v. Seaborg, 463 F. 2d 788 (D.C.
Cir. 1971); Nader v. Butz, 60 F.R.D. 381
(D.D.C. 1973), appeal pending. The thrust
of Nixon was that in a criminal case if the
evidence was indeed determined to be rele-
vant after in camera inspection, then the
privilege would be defeated. In Seaborg, how-
ever, a civil case, the in camera inspection
was merely to determine if the privilege was
rightfully claimed, in which case the ma-
terial would remain confidential and the
privilege would be upheld.
Congressional demands for material also
may fall into two categories. The first would
be a normal committee request, demand,
or subpoena for material which may be re-
jected on the basis of Executive Privilege
where it is deemed by the President that
the production of such material would be
detrimental to the functioning of the Execu-
tive Branch. This at least has been the con-
sistent practice by Practically every adminis-
tration and acceded to by Congress. This
should be contrasted with a demand for
material pursuant to an impeachment in-
quiry, which some presidents have acknowl-
edged would require production of any and
all executive material. See e.g., Washington's
statement, 5 Annals of Congress 710-12
(1796), Finally, there is the demand by stat-
ute- for general public access to information.
This last is the situation presented by S.
4016.
The analysis of the different situations in
which Executive Privilege may be invoked
and its differing weight and treatment is
instructive, for it, not surprisingly, reveals
that the more particularized and the more
compelling the demand for material is, the.
less weight Executive Privilege has. Thus,
in Nixon, the Court acknowledged that a-
generaI claim of privilege depends "on the
broad, undifferentiated claim of public in-
terest in the confidentiality of such con-
versations ," 42 U.S.L.W. at 5244, and
it was for that reason that the privilege
would fail against a showing of particular-
ized need in a criminal trial. The importance
of that public interest in confidentiality,
nevertheless, was emphasized. "The privilege
is fundamental to the operation of govern-
ment and inextricably rooted in the separa-
tion of powers under the Constitution. (cit-
ing cases]." Id. at 5245. The conclusion,
therefore, is clear that absent such a partic-
ularized need for evidence in a criminal
trial, the public interest in fostering free
and frank discussion, by protecting it with
confidentiality, would serve to 'sustain a
claim of Executive Privilege. The -device of
in camera inspection reflects this under-
standing. Yet S. 4016 would jettison this
acknowledged public interest and authorize
general public access to all presidential con-
versations without any showing of need for
that access, particularized or otherwise.
B. Disclosure of PrivilegedMaterial.
S. 4018 contemplates that former President
Nixon's presidential tapes and materials shall
he made available "for use in any judicial
proceeding or otherwise subject to court sub-
poena or other legal process." (Section 3(b) ),
Moreover, Section 6 of the Bill directs the
Administrator to issue regulations governing
access to the tapes so as to authorize him
to allow general public access to each and
every Presidential conversation recorded be-
tween 1969 and 1974 with but three restric-
tions-if national security is involved, if the
Special Prosecutor determines that an in-
dividual's right to a 'fair and impartial trial
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On page 8, line 22, delete "104" and insert
in lieu thereof the following: "103".
On page 9, line 3, delete "104" and insert
In lieu thereof the following: "103".
On page 9, line 1, delete the following:
"cur-ent".
On page 9, delete all the language between
lines 4 and 15, inclusive.
On page 9, line 18, delete "104" and insert
in 1t "ii thereof the following: "103".
On page 10, line 4, delete "105" and insert
In lieu thereof the following: "104".
Ot: page 11, delete all the language lines 1
and 7, inclusive, and insert in lieu thereof
the following:
"Ia9) the need to provide public access to
those materials which have general historical
significance, and which are not likely to be
related to the need described in paragraph
1), under procedures comparable to those
used to provide public access to the materials
of recent former Presidents;"
On page 11, line 5, delete after "(1)" the
remainder of the line as well as all of line 6
and "of former Presidents" on line 7.
Or, page 12, line 6, add after "power of the"
the following: "Senate and the";
On page 12, line 7, after "Representatives",
insect the following: "respectively,";
On page 12, line 8, delete "the House",
and insert in lieu thereof the following:
"each House, respectively,";
On page 12, delete the language in line 12
and Insert in lieu thereof the following: "of
either House to change such rules (as far
as relating to the procedures of that House)
at";
On page 12, line 14, after "rule of" delete
"the" and insert in lieu thereof the follow-
ing: "that";
On page 12, line 15, delete "in the House
of"
On page 12, line 16, delete "Representa-
tives;"
On page 12. line 17, after "House", insert
the following: "or by the President of the
Senate, as the case may be";
On page 13, line 10, delete "in the House
of Representatives".
On page 13, line 24, delete the period (".")
and Insert in lieu thereof the following:
"(d) the provisions of this title shall not
In any way affect the rights, limitations or
exemptions applicable under the Freedom of
Information Act; 5 U.S.C., sec. 552, at seq."
On page 14, delete all the language be-
tween lines 2 and 13, inclusive, and insert
in lieu thereof the following:
"SFc. 105. (a) The United States District
Court for the District of Columbia shall have
the exclusive jurisdiction to hear challenges
to the legal or constitutional validity of this
title or of any regulation issued under the
authority granted by this title, and any ac-
tion or proceeding involving the question of
title, ownership, custody, possession, or con-
trol of any tape recording or material re-
ferred to in section 101 or involving payment
of an?f just compensation which may be due
In connection therewith. Any such challenge
shall be treated by the court as a matter re-
quiring immediate consideration and resolu-
tion, and such challenge shall have priority
on the docket of such court over other cases."
On page 14, between lines 21 and 22, in-
sert the following new subsection:
"(c) If a final decision of such court holds
that any provision of this title has deprived
an individual of private property without
just compensation, then there shall be paid
out of the general fund of the Treasury of
the United States such amount or amounts
as may be adjudged just by that court."
On page 14, delete the language on lines 22
through 25, inclusive;
On page 15, delete the language on lines 1
through 9, inclusive.
On page 15, line 11, delete "108" and insert
In lieu thereof the following: "106".
Mr., ERVIN. Mr. President. I accept
the Senator's amendment as a substitute
for that part of my motion which asks
that the Senate concur in the House-
passed amendment in the nature of a
substitute, subject to the following
amendment, and set out there the
amendment offered by the Senator from
Wisconsin?
The PRESIDING OFFICER. Without
objecion, it is so ordered.
Mr. NELSON. As I understand it, the
amendment that the Senator from Wis-
consin sent to the desk will be considered
as a substitute for the amendment pro-
posed a few moments ago by the Sen-
ator from North Carolina.
The PRESIDING OFFICER. Witho :;t
objection, it is so ordered.
The question is on agreeing to the mo-
tion of the Senator from North Carolina
concurring in the House amendment
with the amendments of the Senator
from Wisconsin.
The motion was agreed to.
Mn ERVIN. Does the Senator have
any further statement to make on this
matter?
Mr. HRUSKA. Mr. President, what is
the pending business?
The PRESIDING OFFICER. The 'ac-
tion is concluded on that matter.
Mr. HRUSKA. The amendment is
i,greed to, and we are now on the bill it-
ielf, with amendments?
Mr. ERVIN. Mr. President, we have
concurred in the House amendment sub-
;iect. to this amendment.
The PRESIDING OFFICER. The Ser;-
,ltor is correct.
Mr. ERVIN. Mr. President, I yield
whatever time I have to the Senator
:rom Nebraska.
Mr. HRUSKA. I thank the Senator.-
Mr. President, I have just a few brief
remarks that cover two points. One is a
reiteration of my opposition to title I of
the bill proper. The second involves the
ill-advised title II.
When S. 4016 was before tl7..e Senate
earlier this session, I made known my
opposition to the bill at that time be -
cause of six rather fundamental consti-
1-utional issues which were presented by
the measure.
The first problem posed by the bill re-
lated to the novel type of eminent do-
main which it contemplates. While Con-
?;ress might be justified in obtaining by
eminent domain those particular mate-
rials which are necessary for specific
reasons of public interest, S. 4016 would
r,uthorize a wholesale taking of literary
property, personal papers, and the most
personal of possessions of Richard Nixon
IS he expressed or recorded them. In-
cluded would be not only official paper. .
but Christmas cards, personal letters.
c farces, and the like. This view of eminent
comain Is without precedent and con-
templates an unparalleled invasion of
privacy.
The second issue involved the appro-
priate scope of executive privilege. In
this regard, I noted that S. 4016 did not
a bide by the-Court's teaching in the case
cf United States against Nixon with re-
spect to judicial demands for Presiden- rent. These rules should be well-con-
tlal materials and with respect to its pro- sidered, should protect against political
lsion for general public access to all exploitation and unnecessary invasions of
rlaterials except national security Infor- privacy and should apply evenhandedly
S 20809
mation. In these particulars, the bill
appeared to be designed to cater more to
the curiosity of the public than constitu-
tional tenets.
The third issue which I aired was the
potential for inadvertent abridgment of
the constitutionally guaranteed right of
privacy of all persons whose conversa-
tions were the subject of the tape record-
ings to be condemned and made public
by the bill. My reading of section 6 of the
bill led me to the conclusion that the
broad delegation of authority to the Ad-
ministrator of General Services to re-
lease Presidential tapes provides abso-
lutely no protection for, privacy rights
and thus violates the requirements for
legislation in this area.
Three more issues of constitutional di-
mension were also raised. How does the
bill impact upon the first amendment
right to unfettered speech? Is it violative
of former President Nixon's fifth amend-
ment privilege against self-incrimina-
tion? Does the measure constitute a bill
of attainder expressly prohibited by
article I, section29, clause. 3, of the Con-
stitution?
Mr. President,. for the benefit of my
colleagues, I ask unanimous consent to
have'printed in the RECORD at the conclu-
sion of my remarks a memorandum
which was reprinted in the RECORD dur-
ing the consideration of this bill in Octo-
ber, and which discusses each of these
issues. It concludes that the bill simply
does not pass constitutional muster.
The PRESIDING OFFICER. Without
objection, it is so ordered.
(See.exhibit 1.)
Mr. HRUSKA. S. 4016 was originally
conceived in great haste within the Gov-
eminent Operations Committee following
the pardon of former President Nixon.
However, in the intervening months
we have witnessed developments that
have operated to insure the security of
the former President's tapes and ma-
terials and to provide necessary access
for. law enforcement purposes. Indeed,
it might be that further refinements of
the rules governing access to these ma-
terials will be forthcoming. Surely there
is no reason for precipitous action at this
time.
Mr. President, title I of the bill which
is the subject of the Senate's attention
at this time mirrors S. 4016 as it passed
the Senate earlier in October. Because
of the serious constitutional issues raised,
I am fundamentally opposedto the pas-
sage of this measure.
Moreover, the major substantive
change that the House has made in this
bill-the addition of title II-actually
makes it even more objectionable.
Title II would create a "Public. Docu-
ments Commission" composed of 17
members to study problems concerning
"the control, disposition, and preserva-
tion" of records "produced by or on be-
half of Federal officials," including legis-
lators and judges.
It is clear that there is a need for rules
governing access to the materials of all
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,RqF001700211~ecember 9, 1.M,
"(B) one Member of the House of Repre-
sentatives appointed by the Speaker of the
House upon recommendation made by the
minority leader of the House;
"(C) one Member of the Senate appointed
by President pro tempore of the Senate upon
recommendation made by the majority leader
of the Senate;
"(D) one Member of the Senate appointed
by the President pro tempore of the Senate
upon recommendation made by the minority
leader of the Senate;
"(E) one Justice of the Supreme Court,
appointed by the Chief Justice of the United
States;
"(F) one person employed by the Executive
Office of the President or the White House
Office, appointed by the President;
"(G) three appointed by the President, by
and with the advice and consent of the Sen-
ate, from persons who are not officers or
employees of any government and who are
specially qualified to serve on the Commission
by virtue of their education, training, or
experience;
"(H) one representative of the Department
of State, appointed by the Secretary of State;
"(I) one representative of the Department
of Defense, appointed by the Secretary of
Defense;
"(J) one representative of the Department
of Justice, appointed by the Attorney Gen-
eral;
"(K) the Administrator of General Services
(or his delegate);
"(L) the Librarian of Congress;
"(M) one member of the American His-
torical Association, appointed by the counsel
of such Association;
"(N) one member of the Society of Ameri-
can Archivists, appointed by such Society;
and
"(O) one member of the Organization of
American Historians, appointed by such Or-
ganization.
"(2) No more than two members appointed
under paragraph (1) (G) may be of the same
political party.
"(b) A vacancy in the Commission shall be
filled in the manner in which the original
appointment was made.
"(c) If any member of the Commission
who was appointed to the Commission as a
Member of the Congress leaves such office,
or if any member of the Commission who
was appointed from persons who are not
officers or employees of any government be-
comes an officer or employee of a govern-
ment, he may continue as a member of the
Commission for no longer than the sixty-
day period beginning on the date he leaves
such office or becomes such an officer or em-
ployee, as the case may be.
".(d) Members shall be appointed for the
life of the Commission.
"(e) (1) Members of the Commission shall
serve without pay.
"(2) While away from their homes or reg-
ular places of business in the performance of
services for the Commission, members of the
Commission shall be allowed travel expenses
in the same manner as persons employed in-
termittently in the service of the Federal
Government are allowed expenses under sec-
tion 5703(b) of title 5, United States Code,
except that per diem in lieu of subsistence
shall be paid only to those members of the
Commission who are not full-time officers or
employees of the United States or Members
of the Congress.
"(f) The Chairman of the Commission
shall be designated by the President from
among members appointed under subsection
(a) (1) (G).
"(g) The Commission shall meet at the
call of the Chairman or a majority of its
members.
"? 3319. Director and staff; experts and
consulants
"(a) The Commission shall appoint a Di-
rector who shall be paid at a rate not to ex-
ceed the rate of basic pay in effect for level
V of the Executive Schedule (5 U.S.C. 5316).
"(b) The Commission may appoint and
fix the pay of such additional personnel as
it deems necessary.
"(c) (1) The Commission may procure tem-
porary and intermittent services to the same
extent as is authorized by section 3109(b) of
title 5, United States Code, but at rates for
individuals not to exceed the daily equiv-
alent of.the annual rate of basic pay in effect
for grade GS-15 of the General Schedule (5
U.S.C. 5332).
"(2) In procuring services under this sub-
section, the Commission shall seek to obtain
the advice and assistance of constitutional
scholars and members of the historical, ar-
chival, and' journalistic professions.
"(b) Upon request of the Commission, the
head of any Federal agency is authorized to
detail, on a reimbursable basis, any of the
personnel of such agency to the Commission
to assist it in carrying out its duties under
section 3315 through 3324 of this title.
3320. Powers of Commission
"(a) The Commission may, for the pur-
pose of carrying out its duties under sections
3315 through 3324 of this title, hold such
hearings, sit and act at such times and
places, take such testimony, and receive such
evidence, as the Commission may deem
desirable.
"(b) When so authorized by the Commis-
sion, any member or a&ent of the Commis-
sion may take any action which the Com-
mission is authorized to take by this section.
"(c) The Commission may secure directly
from any department or agency of the United
States information necessary to enable the
Commission to carry out its duties under
section 3315 through section 3324 of this
title. Upon request of the Chairman of the
Commission, the head of such department
or agency shall furnish such information to
the Commission.
"? 3321. Support services
"(a) The Administrator of General Serv-
ices shall provide to the Commission on a
reimbursable basis such administrative sup-
port services and assistance as the Commis-
sion may request.
"(b) The Archivist of the United States
shall provide to the Commission on a reim-
bursable basis such technical and expert ad-
vice, consultation, and support assistance as
the Commission may request..
"? 3322. Report
"The Commission shall transmit to the
President and to each House of the Congress
a report not later than March 31, 1976. Such
report shall contain a detailed statement of
the findings and conclusions of the Cotmis-
sion, together with its recommendations for
such legislation, administrative actions, and
other actions, as it deems appropriate.
3323. Termination
"The Commission shall cease to exist sixty
days after transmitting its report under sec-
tion 3322 of this title.
"? 3324. Authorization of appropriations
"There is authorized to be appropriated
such sums as may be necessary to carry out
section 3315 through section 3324 of this
title.".
TECHNICAL AMENDMENT
SEc. 203. The table of sections for chapter
33 of title 44, United States Code, is amended
by adding at the end thereof the following
new items:
"3315. Definitions.
"3316. Establishment of Commission.
"3317. Duties of Commission.
"3318. Membership.
"3319. Director and staff; experts and con-
sultants.
"3320. Powers of Commission.
3321. Su port services.
3322. Reports.
"3323. Termination.
"3324. Authorization of appropriations.".
Mr. ERVIN. Mr. President, I move that
the Senate concur in the House amend-
ment in the nature of a substitute, with
the following amendment:
That section 107, which appears on lines
23, 24, and 25 of page 14, and lines 1 through
9, inclusive, on page 15, be stricken, and
that section 108, which appears on line 11
-of. page 15 of the House-passed bill, be re-
numbered as section 107.
Mr. NELSON. Mr. President, will the
Senator yield for a question?
Mr. ERVIN. I yield.
Mr. NELSON. I have an amendment
that encompasses the amendment of the
Senator from North Carolina plus a num-
ber of technical changes that should be
included. They have been supplied to
the Senator from Nebraska.
I am wondering whether it would be
tidier if the Senator withdrew- his
amendment and I sent this amendment
to the desk, of which the Senator from
Nebraska has a copy, which amendment
would do precisely what the Senator
from North Carolina proposes in his
amendment, plus a number of technical
amendments that are acceptable on the
House side.
Mr. ERVIN. In other words, the Sen-
ator's amendment would cover the same
ground I have covered and contains some
additional matters?
Mr. NELSON. That is correct.
Mr. ERVIN. The Senator, in effect,
suggests that I amend my motion so. as
to move that the Senate concur in the
House-passed amendment in the nature
of a substitute, subject to the amend-
ment phrased as the Senator from Wis-
consin has phrased it.
Mr. NELSON. Yes, which embraces the
amendment which the Senator has just
proposed, along with several other tech-
nical points.
Mr. HRUSKA. Mr. President, will the
Senator yield?
Mr. NELSON. Yes.
Mr. HRUSKA. This matter has been
discussed informally with the Senator
from Nebraska This group of amend-
ments submitted by the Senator from
Wisconsin does include the amendment
just described by the Senator from North
Carolina. S-,cause of the cross-refer-
ences, it would be more advantageous to
consider these technical amendments to-
gether with the amendments proposed
by Senator ERVIN en bloc, so that there
will be proper sequence and proper cross-
referencing.
I have no objection to the considera-
tion of the amendments on that basis.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk proceeded to read
the amendment.
Mr. NELSON. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment is as follows:
On page 8, line 4, after the word "as" add
the following: "hereafter".
On page 8, line 21, after the word "pur-
pose", delete the comma (",") and add the
following: "which is consistent with the pro-
visions of this title, subsequent and";
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the tape recordings and other materials re-
ferred to in section 101. Such regulations
shall take into account the following factors:
(1) the need to provide the public with the
full truth, at the earliest reasonable date, of
the abuses of governmental power popularly
identified under the generic term "Water-
gate";
(2) the need to make such recordings and
materials available for use in judicial pro-
ceedings;
(3) the need to prevent general access, ex-
cept in accordance with appropriate pro-
cedures established for use in judicial pro-
ceedings, to information relating to the
Nation's security;
(4) the need to protect every individual's
right to a fair and impartial trial;
(5) the need to protect any party's oppor-
tunity to assert any legally or constitution-
ally based right or privilege which would
prevent or otherwise limit access to such
recordings and materials;
(6) the need to provide public access to
those materials relating to the Presidency of
Richard M. Nixon which have general his-
torical significance, and which are not likely
to be related to the need described in para-
graph (1)? in a manner which is consistent
with procedures which have been used to
provide public access to materials of former
Presidents; and
(7) the need to give to Richard M. Nixon,
or his heirs, for his sole custody and use,
tape recordings and other materials which
are not likely to be related to the need de-
scribed in paragraph (1) and are not other-
wise of general historical significance.
(b) (1) The regulations proposed by the
Administrator in the report required by sub-
section (a) shall take effect upon the ex-
piration of ninety legislative days after the
submission of such report, unless such reg-
ulations are disapproved by a resolution
adopted by either House of the Congress
during such period.
(2) The Administrator may not issue any
regulation or make any change in a regula-
tion if such regulation or change is disap-
proved by either House of the Congress under
this subsection.
(3) The provisions of this subsection shall
apply to any change in the regulations pro-
posed by the Administrator in the report re-
quired by subsection (a). Any proposed
change shall take into account the factors
described In paragraph (1) through para-
graph (7) of subsection (a), and such pro-
posed change shall be submitted by the
Administrator In the same manner as the re-
port required by subsection (a).
(4) Paragraph (5) is enacted by the Con-
gress-
(A) as an exercise of the rulemaking power
of the Houseof Representatives, and as such
it shall be considered as part of the rules of
the House. and such rules shall supersede
other rules only to the extent that they
are inconsistent therewith; and -
(B) with full recognition of the constitu-
tional right of the House of Representatives
to change such rules at any time, in the
same manner, and to the same extent as
in the case of any other rule of the House.
(5) (A) Any resolution introduced in the
House of Representatives under paragraph
(1) shall be referred to a committee by the
Speaker of the House.
(B) If the committee to which any such
resolution is referred has not reported any
resolution relating to any regulation or
change proposed by the Administrator under
this section before the expiration of sixty
calendar days after the submission of any
such proposed regulation or change, it shall
then be in order to move to discharge the
committee from further consideration of
such resolution.
(C) Such motion may be made only by a
person favoring the resolution, and such me-
tion shall be privileged. An amendment to
such motion is not in order, and it is not in
order to move to reconsider the vote by
which. such motion is agreed to or dis-
agreed to.
(D i If the motion to discharge Is agreed to
or disagreed to, such motion may not be
renewed.
(E) When the committee has reported, or
has been discharged from further consider-
ation of, a resolution introduced in the
Heusi of Representatives under paragraph
(1), it shall at any time thereafter be in
order (even though -a previous motion to the
same effect has been disagreed to) to move
to proceed to the consideration of such res-
olution. Such motion shall be privileged. An
amendment to such motion is not in order,
and it is not in order to move to -reconsider
the vote by which such motion is agreed to
or die agreed to.
(6) For purposes of this subsection, the
term "legislative days" does not include any
calendar day on which both Houses of the
Congress are not in session.
(c) The provisions of this title shall not
apply, on and after the date upon which
regulations proposed by the Adminls rator
take offeot under subsection (b), to any tape
recordings or other materials given to
Richard M. Nixon, or his heirs, pursuant to
subsection (a) (7).
JUDICIAL REVIEW
SEC. 106. (a) The United States District
Court- for the District of Columbia shall have
exclusive jurisdiction to hear challenges to
the i)gal or constitutional validity or any
provision of this title or of any regulation
issuect under the authority granted by this
title. Such challenge shall be heard by a dis-
trict court of three judges constituted under
the p:'ocedures established by section 2284 of
title :18, United States Code, with the right
of direct appeal to the United States Su-
preme Court. Any such challenge shall be
treated by the district court of three judges
and the Supreme Court as a priority matter
requiring immediate consideration and reso-
lution...
(b) If, under the procedures established by
subsection (a), a judicial decision is ren-
dered that a particular provision of this title,
or a particular regulation Issued under the
authority granted by this title, is uncon-
stitutional or otherwise invalid, such decision
shall not affect in any way the validity or
enforcement of any other provision of this
title or any regulation issued under the au-
thority granted by this title.
PAR"ICIPAT ION IN CERTAIN COURT ACTIONS
SEC. 107. The Committee on Government
Operations of the Senate and the Commit-
tee on House Administration of the House of
Representatives may, acting jointly or sepa-
rately appoint counsel to intervene in any
case o' proceeding relating to-
(1) the ownership, custody, use, or com-
pensation for any taking, of tape recordings
and other materials referred to in section
101, or any other similar right to or in such
recordings and materials; or
(2) any challenge to- the legal or constitu-
tional validity of any provision of this title
or of any regulation issued under the author-
ity granted by this title.
I+UTHORIZATION OF APPROPRIATIONS
SEC. 108. There is authorized to be appro-
priated such sums as may be necessary to
carry out the provisions of this title.
II
_ITLE II-PUBLIC DOCUMENTS
COMMISSION
SHORT TITLE
SEc. 201. This title may be cited as the
"Public Documents Act".
ESTABLISHMENT OF STUDY COMMISSION
SEC. 202. Chapter 33 of title 44, Urdted
States Code, is amended by adding at the
end thereof the following new sections:
"I 3315. Definitions
"For purposes of this section and section
3316 through section 3324 of this title-
"(1) the term 'Federal official' means any
individual holding the office of President or
Vice President of the United States, or Sen-
ator or Representative in, or Delegate or
Resident Commissioner to, the Congress of
the United States, or any officer of the exec-
utive, judicial, or legislative branch of the
Federal Government;
"(2) the term 'Commission' means the
National Study Commission on Records and
Documents of Federal Officials; and
"(3) the term 'records and documents'
shall include handwritten and typewritten
documents, motion pictures, television tapes
and recordings, magnetic tapes, automated
data processing documentation in various
forms, and other records that reveal the his-
tory of the Nation. -
'13316. Establishment of Commission
"There is established a commission to be
known as the National Study Commission
on Records and Documents of Federal Offi-
cials.
113317. Duties of Commission
"It shall be the duty of the Commission
to stuc(y problems and questions with respect
to the control, disposition, and preservation
of records and documents produced by or
on behalf of Federal officials, with a view
toward the development of appropriate leg-
islative recommendations and other recom-
mendations regarding appropriate rules and
procedures with respect to such control, dis-
position, and preservation. Such study shall
include consideration of-
"(1) whether -the historical practice re-
garding the records and documents produced
by or on behalf of Presidents of the United
States should be rejected or accepted and
whether such practice should be made ap-
plicable with respect to all Federal officials,,
"(2) the relationship of the findings of
the Commission to the provisions of chap-
ter 19 of this title, section 2101 through
section 2108 of this title, and other Federal
laws relating to the control, disposition, and
preservation of records and documents of
Federal officials;
"(3) whether the findings of the Commis-
sion should affect the control, disposition,
and preservation of records- and documents
of agencies within the Executive Office of the
President created for short-term purposes by
the President;
"(4) the recordkeeping procedures of the
White House Office, with a view toward estab-
lishing names to determine which records
and documents are produced by or on be-
half of the President;
"(5) the nature of rules and procedures
which should apply to the control, disposi-
tion, and preservation of records and docu-
ments produced by Presidential task forces,
Commissions, and boards;
"(6) criteria which may be used generally
In determining the scope of materials which
should be considered to be the records and
documents of Members of the Congress;
"(7) the privacy interests of individuals
whose communications with Federal officials,
and with task forces, commissions, and
boards, are a part of the records and docu-
ments produced by such officials, task forces,
commissions, and boards; and
"(8) any other problems, questions, or is-
sues which the Commission considers rele-
vant to carrying out its duties under sec-
tion 3315 through section 3324 of this title.
13318. Membership
"(a) (1) The Commission shall be com-
pi'sed of seventeen members as follows:
"(A) one Member of the House of Repre-
sentatives appointed by the Speaker of the
House upon recommendation made by the
majority leader of the House;
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greatest example on earth. A Ford-Rocke-
feller team Is,right for this Nation and for
our people.
I believe the statement I made on Au-
gust 20 has been confirmed by everything
that has happened since then, taken to-
gether as a unit.
I was very interested, Mr. President, to
find this evaluation confirmed also by a
discussion pf four prominent newsm n on
Martin Agronsky's show regarding J he
Rockefeller nomination this last we-
Time magazine, George Will, and Carl
Rowan, columnists, agreed that Nelson
Rockefeller has come through the confir-
mation proceedings of both the Senate
Rules and Administration Committee and
the House Judiciary Committee with even
greater respect than he commanded just
6 weeks ago.
That is quite a tribute from such high-
powered newsmen for a nominee who has
been very, very thoroughly investigated,
to say the least, as evidenced by these
hearings.
And the editorial in the Washington
Post, to which Senator MATHIAS referred,
certainly lends point and emphasis to the
comments of these newsmen that I just
referred to.,
Mr. President, a few other points:
First, Governor Rockefeller has a
unique quality In attracting high-class
personnel, personnel of skill and ability.
After what this Nation has been through
in respect to seedy politics In the hor-
rendous Watergate scandals, you need in
Goverment the kind of figures who will
attract decent and honorable men and
women of skill to Government with a
feeling of confidence that they will not
be besmirched in the process.
President Ford, with that clean, honor-
able, and straightforward look and at-
titude and feeling, which he has so richly
communicated to our country, and now
Nelson Rockefeller, with the tremendous
shill and standing which he has, will ma-
terially help us at a time when men and
women of talent and quality may be ex-
tremely reluctant to serve in those high
places in Government which seems to
have been the most jeopardized in these
dreadful scandals. .
Second, we are faced with enormous
challenges of an economic character.
We are now In the grip of both inflation
and recession, an almost unmatched sit-
uation in our world.
In addition, there are widespread fears
voiced from the most responsible sources
that we are on the greased skids to a
worldwide depression.
How critically important, therefore,
it is that a man connected with a family
which stands so signally high in the view
of the private sector in the United States
be enlisted in such a high place in the
service of the Nation at this time.
Also, we are in very serious difficulties
abroad. The Middle East situation is
very tense, Involving, as one of its effects,
another danger of an oil embargo.
Cyprus is a battlefield engulfing two
of the NATO partners and compromising
the whole southern flank of NATO. Our
SALT negotiations, the reduced nuclear
armaments, are just getting off the
ground with the Soviet Union in a very
sensitive way. All of us recall problems
with previous new Presidents, even Presi-
dents who later proved themselves to be
superb men, like Harry Truman. In the
early days they had to go through the
rigors of Potsdam and similar postwar
negotiations which tried not only their
mettle but their standing.
Considering Nelson Rockefeller's
standing in this field in the world, I con-
sider it to be an immensely strengthening
element to our country in its negotiations
and in the future actions in these foreign
policy matters to have them in its serv-
Finally, Mr. President, I would like to
s % few words about Nelson Rocke-
fel 's accomplishments, highlighted
and de sharper even by the record of
his ow amily, as Governor of New York.
Like any they incumbency, it was by no
means an ninterrupted stream of suc-
Mr. Presi t, on the whole, it was a
splendid incu bency as Governor of New
York-elected our successive times-
and also demo trated certain unique
qualities which hink should commend
the nominee to u very strongly.
For one, Nelson ckefeller was very
hard-headed about oney and did not
fear, when he felt t t It was essential
to spend, and the Sta legislature was
with him, to go to the p plc in order to
be sustained in activities hich were al-
ways difficult for a govern to go to the
people on-that is, higher t es or bond
issues. He was ready to pe wade and
able to persuade the people of w York,
in the most farsighted way, at the
measures he recommended e so
worthwhile as to deserve financia sac-
rifice on their part, which they ma
The PRESIDING OFFICER. The
ator's time has expired.
Mr. COOK. Mr. President, I yield
additional minutes to the Senator.
Mr. JAVITS. The lead which we have
taken, for example, in prefinancing
clean water, with the assistance and
powerful support of big bond issues
voted by the people, is the kind of enter-
prise and the kind of leadership which
we want in the executive department of
the United States, in which Governor
Rockefeller would function.
Finally, his unusual devotion to edu-
cation and the arts have made New
York a true exemplar of leadership in
terms of education. California was miles
ahead of us when Governor Rockefeller
took over in 1958. In that intervening
period, the State University of New York
has been built up into one of the most
splendid State educational institutions
among all the 50. This is his monument.
He made of the New York State Arts
Council a pilot. plant operation which
has now carried with it our much larger
operation in the Federal Government-
but when it began, a much smaller op-
eration-enormously profiting, as we
brought Nancy Hanks to head it, out of
New York, from the gifted and enter-
prising leadership of Governor Rocke-
feller in this field.
So, Mr. President, for all these rea-
sons, without gilding any lilies and at
the same time complimenting enor-
mously and speaking of the debt we all
owe to the committees which so thor-
oughly investigated the nominee, I com-
mend to the Senate the confirmation of
Nelson Rockefeller's nomination to be
Vice President of the United States.
The PRESIDING OFFICER (Mr.
HELMS). The time of the Senator has
expired.
Who yields time?
Mr. COOK. I yield myself 3 minutes.
Mr. President, relative to a remark
which was made by Senator ABOUREZK,
there is no point in my debating the
various points that he raised, but he re-
ferred to defense spending and the atti-
tude of the Governor of New York.
I should like to read a colloquy which
the nominee had with Senator PELL,
which begins on page 151 of the record:
Senator PELL. So the same type procedure
might be followed here?
Mr. ROCKEFELLER. I really haven't thought
it through but at the moment that's my sort
of reaction to what you want.
Sentaor PELL. On another subject. A few
years ago our Nation began turning its
thoughts to the Bicentennial celebration. We
hope it is going to be a humdinger, better
than the one in 1876. But so far as it looks
it hasn't taken off the ground as it should,
being plagued wtih problems at the national
level and in the various States. I'm not think-
ing of your own and my State which are well
run.
What are your thoughts in regard to the
Bicentennial in 1976 in regard to your Vice
Presidential role. Would you be able to give
it some thought?
Mr. ROCKEFELLER. To be perfectly frank,
I hadn't thought about that. I would pre-
sume that would depend on the President-
his desires; I'd conform to whatever was on
his mind.
Sentaor PELL. What are your views, Gov-
ernor Rockefeller, with regard to the public
financing of campaigns for Federal elected
office; for President, Vice President, for
Senators, and Congressmen?
Mr. ROCKEFELLER. Well, of course, they
have some very interesting possibilities. One
has to think, as one who has .participated
in financing of campaigns. I have a little
on the ballot as a gubernatorial can-
Now if the State were to finance the
financing, th
most.
Senator PELL
be for the two
at. But in relation to public
is the item that concerns me
'Me public financing would
receive funds in propor-
received in the elections
major parties.
Certainly the subject is
Mr. ROCKEFELLER.
a tremendously dim
ental basis that this
be explored and very
The real problem is t campaigning and
I've campaigned snice 10,08 and the costs
have gone just straight up like this because
of television time. So that I assume when
you talk about public financing then you're
talking, thinking about also how you finance
time on television. And I suppose in England
they give you time on television.
Senator PELL. That is another approach
that has been suggested. But I think the
would have the tremendous
the two-party system.
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 20806
1' c
bills before us now-y+oc yo%tx'rj families
with the Senate bill afid House bill on ca>Qi-
paign finanbing. -`
Mr. ROCKEFELLZ . I'm not famtfiar in d l
definite character to it because I really haze
rot had a chance to study those.
Senator FELL. On another subject. This is
'..rasicaily a philosophical one. I think there
Ought to be a reduction of expenditures .n
she Federal budget.
The question is, where do the reductions
.:ome from, the hardware, defense and space
.;ector, or the so-called human sector, eda-
eation and health?
What is your view as to where the main
thrust of these reductions should come from?
They've got to come from one area or a:7-
other because there are only the two prin-
=:ipal areas.
Mr. ROCKEFELLER. Well, I suppose, first,
is a policy decision as to whether- a out is
,o be made; and secondly, how big a cut; and
thirdly, then to examine every department
and see where those cuts can be made, or a
zery careful analysis of the work being done,
its essentiality, its priority. It is a very dif-
flicult thing always to cut back. I had to face
.t in New York, and the State payroll was
reduced by 11,000 employees, which for a
state was an awful lot of employees. And we
would out back on programs, in all areasi
and postponed and an forth. And it can b
,nuscle to do it.
Senator FELL. Would you be for an even
President Ford said there should be no :'e-
duction in defense expenditures. That was
suggested and some disagreed with it. You
would believe that the reduction should be
on an evenhanded basis?
Mr. RocxEFELLER. I would think really If it
were possible to do it, it should be done on
the basis of least harm to the service and
fundtion of the particular department or
agency which was under review so that if it
is national defense, how do we preserve the
strength of our national defense; what are
areas where activities could be reduced or cut
which are not of high priority character?
And other programs, programs that have
been on the books a long time that perhaps
today are not as important as new arias
which are emerging.
Senator PELL. But basically, as you know,
a dollar spent on defense and space produ;es
far less in human benefits than that spent
in health and education, Would that rel ite
to-
Mr. ROCKEFELLER. Except as you relate it
to the problem of freedom. I have to think
fundamental to everything is freedom.
Senator PELL. Freedom at home as well as
abroad?
Mr. ROCKEFELLER. Freedom at home end
abroad.
Senator PELL. Thank you.
Finally, in connection with Cuba, there
seems to be a feeling that perhaps we she old
improve and regularize our relationship. Do
you have any views in that regard?
Mr. ROCKEFELLER. I have not in rec--tnt
years discussed the question of Cuba, :lot
since 1969. In 1969 when ,I was on that trip
for the President and went to 20 countries
and talked to the heads of state, I got a
pretty good feel at that time as to the alti-
tude of the other American republic leac ers
about Cuba. At that time there was very
little sentiment for reestablishing relations.
From what I read in the papers, there seems
to be some softening of that position, and I
would assume that this is a question which
would be taken up in discussion with the
heads of other states to get a consensus
position.
Senator FELL. Thank you very much.
The CHAIRMAN. Thank you.
01J ,
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Mr, Rockefeller, Senator Allen has re-
-turfied and we will let the hearings go right
ahead and proceed with the questionn. Sen-
ator Cook will be the next one up as soon as
he returns from the vote.
Mr. President, I suggest the absence
of a quorum.
Mr. CANNON. On my time.
The PRESIDING OFFICER. The clerk
ill call the roll.
The second assistant legislative clerk
roceeded to call the roll.
Mr. CANNON. Mr. President, I ask
nanimous consent that the order for
e quorum call be rescinded.
The PRESIDING OFFICER. Without
Mr. CANNON. I yield 5 minutes to the
enator from North Carolina.
The PRESIDING OFFICER. The
hair-inquires whether this is to be in.
LEGISLATIVE SESSION
Mr. ERVIN. Mr. President, I ask unani-
mous consent that the Senate go into leg
lative session.
The PRESIDING OFFICER. Without
PRESIDENTIAL RECORDINGS AND
MATERIALS PRESERVATION ACT
Mr. ERVIN. Mr. President, I ask the
Chair to lay before the Senate a message
from the House of Representatives on
S. 4016.
The PRESIDING OFFICER (Mr.
HELMS) laid before the Senate the
amendment of the House of Representa-
tives to the bill (S. 4016) to protect and
preserve tape recordings of conversations
involving former President Richard M.
Nixon and made during his tenure as
President, and for other purposes, as fol-
lows:
Strike out all after the enacting claase, and
insert: That this Act may be cited as the
"Presidential Recordings and Materials Pres-
ervation Act".
TITLE I-PRESERVATION OF PRE::>IDEN-
TIAL RECORDINGS AND MATERIALS
DELIVERY AND RETENTION OF CERTAIN
PRESIDENTIAL MATERIALS
SEC. 101. (a) Notwithstanding an7 other
law or any agreement or understanding made
pursuant to section 2107 of title 44, United
States Code, any Federal employee in pos-
session shall deliver, and the Administra-
tor of General Services (hereinafter in this
title referred to as the "Administrat,or"-
shall receive, obtain, or retain, complete pos-
session and control of all original tape re-
cordings of conversations which were record-
ed or caused to be recorded by any officer or
employee of the Federal Government and
which-
(1) involve former President Richard M.
Nixon or other individuals who, at the time
of the conversation, were employed by the
E?'ederal Government;
(2) were recorded in the White E;use or
in the office of the President in the Execu-
tive Office Buildings located in Washington,
District of Columbia; Camp David, Mary-
land; Key Biscayne, Florida; or San Clements,
California; and
(3) were recorded during; the period be-
ginning January 20, 1969, and endi,,g Au-
gust 9, 1974.
(b) (1) Notwithstanding any other law or
any agreement or understanding made pur-
suant to section 2107 of title 44, United
States Code, the Administrator shall receive,
retain, or make reasonable efforts to obtain,
complete possession and control of all pa-
pers, documents, memorandums, transcripts,
and other objects and materials which con-
stitute the Presidential historical materials
of Richard M. Nixon, covering the period be-
ginnnig January 20, 1969, and ending Au-
gust 9, 1974.
(2) For purposes of this subsection, the
term "historical materials" has the meaning
given it by section 2101 of title 44, United
States Code.
AVAILABILITY OF CERTAIN PRESIDENTIAL
MATERIALS
SEC. 102. (a) None of the tape recordings
or other materials referred to in section 101
shall be destroyed, except as may be pro-
vided-by law,
(b) Notwithstanding any other provision
of this title, any other law, or any agreement
or understanding made pursuant to section
2107 of title 44, United States Code, the tape
recordings and other materials referred to in
section 101 shall, immediately upon the date
of enactment of this title, be made available,
subject to any rights, defenses, or privileges
which the Federal Government or any person
may invoke, for use in any judicial proceed-
ing or otherwise subject to court subpena or
other legal process. Any request by the Office
of Watergate Special Prosecution Force,
whether by court subpena or other lawful
process, for access to such recordings or ma-
terials shall at all times have priority over
any other request for such recordings or. ma-
terials.
(c) Richard M. Nixon, or any person whom
he may designate in writing, shall at all
times- have access to the tape recordings and
other materials referred to in section 101 for
any purpose, subject to the regulations
which the Administrator shall Issue pur-
suant to section 104.
(d) Any agency or department in the ex-.
ecutive branch of the Federal Government
shall at all times have access to the tape re-
cordings and other materials referred to in
section 101 for current lawful Government
use, subject to the regulations which the
Administrator shall issue pursuant to sec-
tion 104.
COMPENSATION
SEC. 103. If any court of the United States
decides that any provision of this title has
deprived any individual of private property
without just compensation, then there shall
be paid out of the general fund of the Treas-
ury of the United States such amount or
amounts as may be adjudged just by an
appropriate court of the United States. How-
ever, the provisions of this title shall not be
construed as making any determination with
respect to any private property right of title
to tape recordings and other materials re-
ferred to in section. 101, if any such right
existed prior to the ate of enactment of this
title.
REGULATIONS TO PROTECT CERTAIN TAPE RECORD-
rlGS AND OTHER MATERIALS
SEC. 104. The Administrator shall issue at
the earliest possible date such regulations as
may be necessary to assure the protection of
the tape recordings and other materials re-
ferred to in section 101 from loss or destruc-
tion; and to prevent access to such record-
ings and materials by unauthorized persons.
Custody of such recordings and materials
shall be maintained in Washington, District
of Columbia, or its metropolitan area., except
as may otherwise be necessary to carry out
the povisions of this title.
REGULATIONS RELATING TO PUBLIC ACCESS
SEC. 105, (a) The Administrator shall, with-
in ninety days after the date of enactment of
this title, submit to each House of the Con-
gress a report proposing and explaining reg-
ulations that would provide public access to
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