Probes

I

WHEN the battle lines were being drawn in the recent automobile strike, Mr. John L. Lewis unlimbered his batteries with an announcement that he would ask a Congressional inquiry into General Motors. It was to investigate the financial setup of the company, what salaries were paid to the chief executives, whether the company was under the remote control of the du Pont family, and to what extent its policies were dictated by British and French interests.

At about the same time one of the Washington weekly news services reported laconically: ‘Labor “spy” inquiries by La Follette Senate Committee will be used to embarrass General Motors and other corporations having serious labor disputes.‘

These manœuvres raise some interesting questions. The bland assumption that a legislative investigation, if it could be obtained, — as to which Mr. Lewis apparently felt no misgivings, — was an available weapon may well inspire some inquiry into the uses and purposes of this familiar governmental device.

A legislative investigation is neither strictly legislative nor judicial, but it enjoys the full authority of the legislature and some of the major prerogatives of the courts. The investigating body may compel witnesses to attend and to give testimony, and it may punish the recalcitrant by jail sentence. What we commonly consider the constitutional rights of a witness or a defendant do not exist. And the field within which the investigator thus armed may roam has few practical limits.

This field, in the earliest appearances of the legislative investigation, was chiefly in the domain of election contests. Before the Pilgrim Fathers sailed, Parliament was appointing committees to investigate and report upon election contests. Parliament likewise assumed jurisdiction to create committees to investigate executive departments. As the holder of the purse strings, it conceived, reasonably enough, that it had a right to know how and for what purposes moneys were being spent.

Reasons were early found for still further extending the scope of the legislative inquiry. It was clear that legislative bodies should acquire proper information before legislating — in theory, at least. At an early day, therefore, committees of Parliament were appointed for all manner of inquiries, many of which have a familiar ring. They were appointed ‘for the Examination of the Merchants’ Business’ in London; to investigate navigation on the River Wye; ‘to inspect the several Accompts of the Officers of the Navy, Ordnance and Stores’; and, as early as 1689, to investigate ‘ the conduct of the war’ — the particular one that was going on at the moment in Ireland.

Our legislatures were not slow to take advantage of these principles. Probing was common even in colonial times. After the Federal Constitution was adopted, Congress followed suit. Investigations into its own family affairs, such as the election of Representatives and the alleged bribery of members, have been common. Investigation of executive departments was popular from an early date. Despite the supposed separation, under the Constitution, of the powers of the executive and legislative departments, each has always tried by some means to dominate the other. In Parliament, control over the executive is automatic, through its power to overthrow the government of the day. In Congress, more indirect means have proved necessary. Legislative investigation of a department, theoretically to ascertain how appropriated funds were being spent, has proved a handy device to this end.

These internal governmental activities have had only a minor interest for citizens not actively engaged in the politics. They are accepted as part of the game. What concerns citizens more acutely is the investigation ostensibly aimed at procuring facts as a basis for legislation. Of the propriety and utility of a factual inquiry of this type there can be no question. Increasingly Congress must legislate on complex and delicate questions. Obviously few legislators enter the Capitol fully equipped with information on any large part of the fields in which they must make law — taxation, tariffs, banking, transportation, river improvements, pensions, forestry, patents, Indians, foreign relations, chain stores, not to mention the economic legislation of recent years. If legislation is to be based on anything but inspiration or political catchwords — or unless the executive is to do the thinking for the legislative branch — a basis of fact must be laid. Clearly the only practical approach to that must be investigation by selected groups from the houses. And many genuine contributions have been made by such groups.

The group may be from the houses themselves, it may be composed of outside experts, or it may be both. Particularly valuable contributions have been made by groups composed in part, at least, of outsiders. Probably a more objective and detached study of a given problem can be made by those not under the pressure and vexation of a legislator’s life. Royal Commissions in England have produced state papers of the highest worth. Similar laymen’s bodies in this country have been fruitful of results, though too often their reports have benefited few others than the Government Printer. While perhaps less outstanding, many reports of committees of the legislators themselves have been of very real value. As a governmental device there can be no question of the value of the committee investigation.

It is the abuse rather than the use of the device that is disturbing. When the power of inquiry passes beyond fact gathering, and its collateral uses are exploited, the possibilities give one pause. It is a high-powered machine, practically unlimited by constitutional restraint or by custom, in either scope or method. In reckless hands it can do real damage.

Of its scope the oft-quoted Lord Coleridge once said that the inquisitorial power of Parliament extends to ‘everything which it concerns the public weal for them to know, and they themselves, I think, are entrusted with the determination of what falls within that category.’

II

Congress has not been slow to recognize its interest in everything that concerns the public weal and to take upon itself the determination of the category. The excursions of the last twelve Congresses make interesting reading. Nearly three hundred such investigations were authorized. Some were genuine efforts to get at facts. Some were obviously convenient methods of postponing action on embarrassing matters. Some seem merely to have provided pleasant opportunities for travel. Others appear to have had purposes rather remotely connected with the gathering of information necessary to legislation. The largest single category comprised investigations of administrative bureaus. Agricultural matters were a perennial object of solicitude. The legislators seem to have been peculiarly curious about lobbies. Their curiosity was manifested by some form of probe in nearly every session, although it would seem that formal inquiry might yield less information than their own day-to-day observations.

Some minor items of interest appear from time to time. Senatorial concern seems to have been felt, for some reason, about irregular delivery of the Congressional Record, although it is not clear whether irregularity was deemed good or bad. Investigation was authorized into ‘alleged socialistic propaganda emanating from the employees of the Federal Trade Commission.’ The patriotic societies will be concerned to learn that these emanations were as early as 1919. The lower house in 1927 risked the appointment of a committee on the abolishment of useless offices, but surprisingly no hearings appear to have been held or report filed. An investigation more prolific of hearings was that of the Senate into ‘ appropriate methods for replacement and conservation of wild animal life,’ during which personal visits to wide sections of the central and extreme West were evidently necessary. The appropriation for this purpose was $45,000. Three years later a select committee of the House found it necessary to investigate ‘all matters pertaining to the replacement and conservation of wild animal life,’ but though its findings actually resulted in the treaty with Mexico for the protection of migratory birds, the investigation cost very much less. Representatives can apparently travel more cheaply than Senators.

These items are, of course, merely curiosities. But the more serious Congressional efforts will bear some study. When the Seventy-Fourth Congress recessed in the summer of 1935, it left fifteen major inquiries to brighten up the summer. Curiosity about lobbies persisted, including by now a ‘superlobby.’ A survey was to be made of ‘ all land and water policies of the executive and other agencies of the government’ — a reasonably comprehensive field. Inevitably the international bankers were included, this time under the eye of the Munitions Committee headed by Senator Nye. When the session finally closed last summer and Congressmen settled down to the serious business of reëlection, the Senators did not wholly relax their fact-gathering efforts. The machinery was kept at work preparing for at least three promising probes. Senator Wheeler proposed to explore the field of railway financing, with particular attention to the much-publicized Van Sweringen Empire. Senator Lonergan was preparing to keep an eye on private (not public) campaign expenditures. And Senator La Follette was getting ready to investigate strike breaking. The Senate’s appetite for facts would permit no vacation. All these subjects coincidentally seemed likely to become acute topics of interest in the succeeding months, and perhaps Mr. Lewis was justified in assuming that he need only call for a committee when he needed one.

The House was not entirely idle. The Sabath Select Committee to Investigate Real Estate Bondholders’ Reorganizations was traveling like a football squad on behalf of real estate bondholders. The typical real estate bondholder has been a small investor, undoubtedly imposed upon, little able to help himself, and easily convinced that somebody must be to blame for the collapse of real estate values from which he is suffering — a fertile field for arousing both sympathy and prejudice. Perhaps, therefore, the committee is not to be blamed for having lost sight of the theory and philosophy of legislative investigation. In the search for light on how to legislate, it circularized bondholders offering to procure counsel to press fraud claims, on a contingent basis. It had its own counsel appear and object to reorganizations of distressed properties. When some judges professed inability to see why such counsel should appear in their courts without clients, the committee returned to the House and the House extended the committee’s powers so as expressly to include such appearances, for the purpose of objecting to reorganizations, with especial mention of fees, whenever the committee felt proper. The House seems to have overlooked the tenuous connection between procuring evidence for legislation and presenting evidence in litigation.

The lead of the Federal legislature has been enthusiastically taken up by the state bodies. Congress has felt little enough restraint, but the state legislatures have been still less troubled by the dictates of dignity or any undue feeling that motives should be kept on a high legislative plane. For example, during the construction of the Century of Progress in Chicago, while its administrative officers were straining every nerve to make each dollar do its work, a joint commission of the Illinois Senate and House members organized an inquiry into the ever-interesting topic of jobs, this time at the exposition. A Senator was quoted in the press as saying at the hearing, ‘I have yet to find one member of the legislature who has got a job at the Fair, and that does n’t set so well.’ It is a rare daily paper that does not record the activities of some state legislat ive committee engaged in a new and passionate search for facts.

III

With the ever-spreading field of government activity, imagination falters before the possible future interpretation of ‘that which it concerns the public weal for the legislature to know.’ This absence of boundaries might not be so frightening, however, if it were not for the methods which have grown up in the conduct of the inquiry. This is perhaps the most disturbing aspect of the matter.

The legislative committee bent on getting facts is armed with the weapons of a court but recognizes none of a court’s limitations. Its power to summon witnesses, including often a witness who is the object of the investigation and therefore virtually a defendant, and the power to punish a witness for refusal to answer, are essentially judicial powers. But while the legislature dresses its agents in judicial ermine, the agents know nothing of the restraint and impartial judgment that the ermine is presumed to clothe.

The trial of issues of fact in any tribunal under what we call our AngloSaxon system has immemoriaily been under certain rules of fair play. Fundamental among these have been that no man should sit in judgment on his own case, that the person accused should have the right to confront his accusers, to answer them and cross-examine their witnesses, and to bring forward his own side of the matter. None of these elementary rules of the game is observed in the legislative investigation. A court hears both sides of a controversy. When the legislature starts an investigation, there are, in theory, no sides. In theory this is correct enough; when the investigating body has heard enough to be satisfied on the facts, the fate of the unfortunate object of the investigation is of no concern to the legislator. But in real life it is otherwise. Granted that the busy statesmen should not be burdened with the bickerings and obfuscation that all too often mar our judicial trials of fact; it still remains true that truths half brought out are not whole truths. And, to descend somewhat from the abstract, it is equally clear that the investigator who starts with an opinion cannot fully be trusted to bring forth the unpleasant facts as well as the pleasant. Call them what we like, most investigations attack somebody directly; many others damage somebody in passing on to their objectives, and the damage may be greater than the object attained. Too many investigations are truly prosecutions. The prosecutor is the legislature. The legislature is also judge and jury.

It is no real answer to say that the legislative finding sends nobody to jail. The defendant is condemned by public opinion, and may be damaged in that regard more deeply than by fine or sentence. The gossip is aired, the halftruth is headlined, the explanation or justification is unheard. The damage is done, and the absence of bailiff or warden from the scene is poor consolation to the victim.

Visualize, if you please, the ordinary probe. After appropriate advance publicity to ensure a good house and a good press, the legislators gather. Accommodations are provided for the press, and, if space permits, the witnesses subpœnaed may also find chairs. No need to supply space for the photographers; they are licensed to climb over everyone. A continuous barrage of flashlights is laid down. In the midst of the hurlyburly a witness is produced. He may be a witness or he may be really a defendant, himself the object of the investigation. In neither capacity has he any rights. Statesmen are seeking light, and the witness’s personal concerns must give way to the majesty of the occasion.

There is no direct examination. All is cross-examination. All members of the committee may ask the questions, one after another or simultaneously. According to his mood, a member may lead, badger, and confuse the witness at his will. In the more highly organized inquiries, there may be an inquisitor for the committee, but this does not restrain the individual initiative of the members. In what became known as the Pecora investigation of banking, Mr. Pecora directed the course of the investigation, but accompanied by an obbligato of senatorial inquiry. One of the more resonant instruments in the orchestra was Senator Huey P. Long. A member of the ‘House of Morgan’ was on the stand, and according to press reports was invited to hold his own in the following colloquy: —

Senator Long: ‘Did it ever so happen about the time this hearing was started that you read anything in regard to a statement by me upon the floor of the Senate, to the effect that the Treasury Department ought not to be dominated by a man who came from or was affiliated with the House of Morgan?’

Mr. Lamont: ‘It is very possible that I did.’

Senator Long: ‘Do you remember about how long it would have been, that you remember, if you do remember it, from possibly having read such things, before this investigation commenced?’

Mr. Lamont: ‘Well, Senator, I should not have recalled it for very long, because such a statement, if ever made, would not have made the slightest impression upon me.’

Senator Long: ‘Then a statement made by a member of the United States Senate naturally made no impression on you?’

Mr. Lamont: ‘Any statement made by a Senator of the United States that was founded on anything approaching the facts would of course. . . .‘

And later:

Senator Long: ‘Now Collier’s has had some articles published by you, has n’t it?’ Mr. Lamont replied in the affirmative.

Senator Long: ‘Do you know of any reason why Collier’s Weekly was making the pronouncement that it was going to fight Huey P. Long and was sending to every member of Congress a previously printed document that was to appear in Collier s Weekly, supposedly to make a great exposure of Huey P. Long, after that speech that the Treasury Department of the United States should be ousted from the House of Morgan?’

Members of the ‘House of Morgan’ have had a long training in the witness chair, but less experienced witnesses may well be disturbed by the thought that their answers to such questions make history.

In the midst of such welter and confusion, the witness is entitled to no protection from his own counsel, whether or not he be the object of the inquiry. In some instances counsel has been permitted as a matter of grace to speak occasionally. He has, however, no right to object to the character of a question or its pertinency. Few men are at home in the witness chair, and under the glare of publicity and the general circus atmosphere it is easy for witnesses to misspeak themselves or leave false impressions. Counsel has no right to take even a helpful part in the affair. Under the ordinary common-law procedure, after a witness has been subjected to cross-examinat ion his own counsel may mop up, correct mistakes, bring out facts suppressed or overlooked. In a legislative inquiry, although the whole proceeding may have been a hostile cross-examination, no such right exists. If there is any substance to the theory that the legislature is inquiring into facts, such mopping up should be not only permitted but encouraged.

The traditional oath administered to the witness requires him to tell the truth, the whole truth, and nothing but the truth. In practice the legislative inquiry forgets two thirds of this formula. Both the truth and the whole truth require a fair presentation of the whole case. Where a witness is asked only those questions which the inquisitor chooses to put and is denied the right to bring into the record the whole case, the intent of the inquiry is not served. In the post-Johnson period of the NRA, the then Administrator, Clay Williams, was being examined by a Senate committee. Senator Couzens asked him if he approved the principle that a man must get the approval of the government before going into business. ‘It is a rotten principle,’ Mr. Williams said, ‘but . . .’ There the Senator cut him off, saying that he had heard criticism of Williams as a witness for qualifying all answers. Congress is thus enabled to legislate with the knowledge that the Administrator regarded one principle of NRA as rotten with certain qualifications; but Congress was not to know the qualifications.

IV

The up-to-date probe is no amateur or impromptu affair in spite of its occasionally having the appearance of being a senatorial field day. It is a serious business enterprise. It may be fortified by a force of investigators and accountants who swarm in upon the concern which is the unfortunate object of its attention, take possession of its books and records, and settle down for months of insistent questioning. A partner of J. P. Morgan and Company recently stated in a hearing that for more than eleven months six or seven investigators of the Senate Committee on Interstate Commerce had been working on the firm’s files and had examined more than 450,000 memoranda and other documents.

There may be no legal warrant for this invasion, but the citizenry is learning that, particularly if there is nothing really to conceal, it is better to let the investigators in, with all the risks of partial and unfair disclosure. A Senator, chairman of a leading committee, in a magazine article recently told with evident relish how easy it had been to bring even the reluctant to the mark by the simple expedient of exercising the committee’s power to issue a subpœena requiring that some truckloads of records be brought to Washington instanter. And the recent manœuvre of having a Federal commission order the telegraph companies to turn over, unknown to the persons investigated, private messages for the eager combing of the investigators is too fresh in mind to require more than mention.

After some months of such examination, a public hearing may be held. The inquisitor is armed with statements made up by his own staff, with its own interpretation of the material. Only as a favor may the supposed owner of the records learn what these statements purport to show before they are published to the world. The investigator’s findings may vary in accordance with his taste for the dramatic. Once given out, they become current history. Similarly in the sifting of the records an investigator may cull out careless or ill-considered letters, isolated bits of office memoranda, criticism by one officer of the judgment of others, and the like. Since these are published as admissions of the culprit’s own officers, undue weight is attached to them. If by grace the examining committee permits explanation, it is apt to be too late. To-day’s headlines are seldom overtaken by to-morrow’s explanation.

The press, of course, is partly responsible. But it is no answer to blame the press. The reporters do not make the news. If committee members exploring a field of current public interest give out what they delight to term ‘disclosures,’ the papers can but report the fact. In default of good disclosures, committee members have been suspected of keeping public interest alive by timely but vague ‘charges.’

Some committees have developed showmanship to a high degree. After a build-up of promised disclosures and interesting charges, a real hippodrome is called for. Of course the first step should be to find an excuse for calling Mr. J. P. Morgan. The all-time high may have been reached when the midget climbed into Mr. Morgan’s lap; but this may be unduly depreciatory of the ingenuity of future solons. Not every committee is fortunate enough to be able to offer Mr. Morgan as a feature; rival attractions must be provided. The Nye Committee managed to secure the attention not only of the American electorate but also of the British Empire by producing a witness to declare that the King of England had interested himself in acting as salesman for British-made munitions. Instances of absurdities could be multiplied manyfold. It suffices here to note that the atmosphere created is not one calculated to bring to light a factual background for serious legislation.

Once this powerful machine is put in motion, the object of the investigation is helpless. The theory of legislative inquiry seems to permit but two limitations upon the scope of the questions a witness may be required to answer — that is, that the inquiry be one which the legislature has the right to make, and that the question be pertinent to the inquiry. The first limitation is, as indicated above, nearly meaningless; few fields seem to be closed to legislative inquiry. The second limitation is nearly as illusory. The pertinency of a particular quest ion is a question of law. The witness must not only keep his head while he is the centre of so much legislative, journalistic, and photographic interest, but he must at the same time be his own lawyer. If he has the perspicacity to doubt whether a question is pertinent, he has an interesting possibility. He may decline to answer. The committee then solemnly sits in judgment on the propriety of its own question. If it decides in its own favor, it summons the witness before the bar of the House. The House then passes upon the propriety of the action of its own committee. If it sustains its committee’s action, no appeal lies to any independent tribunal at this stage. To bring the question before a court it is necessary that the Sergeant-atArms take the witness into custody and that the witness then apply by writ of habeas corpus for his freedom in order to test the matter of whether the question asked him was pertinent. Most decided cases have arisen, therefore, under the interesting circumstances of a witness in jail trying to get out.

V

The Supreme Court has drawn aside and left the legislative bodies practically supreme within their field. Particularly in its most recent pronouncement, the Court seems to have gone at least as far as it need have in respecting the legislature’s prerogatives. While the power to punish a witness for contempt for failure to answer a question has been sustained under both the English law and ours for many years, the reason for the decision has been that the legislative body must have the power necessary to make effective its right of inquiry. In simpler terms, the legislature could punish in order to make a man talk. In the MacCracken case, however, growing out of the airmail investigations, the Supreme Court permitted Congress to send MacCracken to jail, not because he would n’t talk, but by way of punishment for having permitted the destruction of certain papers which could no longer be produced. Congress may therefore use its writ not only to get at the facts now, but also to give a significant hint to the next witness.

Not only, then, may Congress determine at its fancy what fields it will explore, and sit in judgment on its own thinly disguised prosecution, but it may also write the rules of the game as it goes along. It would be unfair, however, to imply that the investigative machinery is wholly evil. On the contrary, when not abused it is an admirable device. On balance it probably has worked beneficially. As the problems to be met by legislation have increased in complexity, no better instrumentality has been devised for the intelligent thrashing out of difficult issues. The mere existence of such machinery of inquisition also undoubtedly has a wholesome effect on administrative personnel. Indeed, often it seems to work too well; the constant threat of what a Senator may say in a hearing appears at times to have a paralyzing effect on officials. But that on the whole is a minor consideration compared to the general benefit of having a lantern that can be turned into the dark corners of government. More important still, perhaps, is the fact that it gives the minority party a chance. Minority members may be ridden down in voting and subdued by rules of closure, but in open investigations they can make themselves heard. Senator Walsh let in the light of day upon the oil scandals of the post-war period very successfully, though he was a Democrat digging up matter most unpleasant to the dominant Republican administration.

The vice is not in the institution itself, but in its abuse. If Congress had responded to Mr. Lewis’s demand by inquiring into the matters he proposed, the issues would presumably have been tried by a committee willing to lend itself to the embarrassment of General Motors and its officers. Only so much of the company’s affairs as the inquisitors elected to bring out would have made headlines. Explanation of apparently embarrassing facts could have been denied. And though Mr. Sloan might have been sure that the size of his salary had no bearing on the issue of collective bargaining, he could have tested his opinion only from the county jail.

No ready remedy or alleviation is apparent. Legislatures must supply their own restraint. The prospect of that is not bright, but neither is it hopeless. Despite the possibilities of abuse, of the many inquiries that have been started few have been really exploited. It is hard to imagine the formal adoption of any self-denying ordinances by a legislature, but protective precedents may well grow up unawares. For example, though the witness may not demand as of right that he have counsel, yet the right is often granted him and each such concession makes the request harder to refuse the next time. Few men are for very long impervious to demands for fair play. They are even less so when public opinion is aroused in behalf of the victims of unfair tactics. After the World War no less than fiftyone committees were appointed by a Republican Congress to expose the blunders of the Democratic administration; but General Dawes, with his ‘Hell ’n’ Maria’ and his underslung pipe, in a single day’s testimony suffocated the enterprise. He pointed out, with a vigor that made good press copy, that we had been in a war, that horses for artillery were more important than the price paid for them or the requisition blank filled out, and so on; and the so-called ‘smelling’ committees rather shamefacedly petered out.

In all the discussion of checks and balances of late this unchecked instrument of government seems to have been overlooked. Yet it is obviously being utilized freely as one weapon in the arsenal of government. It is a powerful weapon, capable of good use, capable equally of abuse. The abuse can be controlled only by a constantly asserted public opinion.