merous become the administrative agencies which seek funds and require scrutiny. Naturally, therefore, the staff of Congress has grown larger. To its cost, numbers, duties, and potentialities little attention has yet been paid-even by Congress.

Relatively speaking Congress is an inexpensive body. For the services of 435 Representatives, 96 Senators, their buildings and their staff, the country pays more than $13,000,000 annually-say one-sixth of the cost of one of the dreadnoughts now under construction. To staff Congress costs about three times as much as it does to keep one of these battleships in commission. The personnel required is somewhat larger-3,200. For clerks to Senate and House committees and to Senators and Representatives, Congress annually appropriates more than $4,750,000. Perhaps three-quarters of a million more goes to persons who might be called officials rather than employees. Some of these posts-those of the parliamentarians, official reporters, and journal clerks, for example, are of high importance. Others are honorific sinecures. The employees who do the housekeeping for the Capitol and office buildings, and perform manipulative work in document rooms and elsewhere, bring the total cost of the congressional staff to $6,500,000 annually. Perhaps 200 members of this staff (personal secretaries apart) hold posts which give them influence if not power. They are the congressional counterpart of the public servants in the higher ranges of the executive departments in that they assist Members in the discharge of their duties as drafters, critics, and makers of laws, and scrutinizers of administration. Twenty years ago the staff of Congress numbered less than half of what it now does, and its cost was much lower.2 Changes have been largely unnoticed and unsung and we propose here to set forth certain facts that may suggest the tunes which may be appropriate when the singing begins.

II

Of course, Congress must be more expensive than any other legislative assembly and its staff must be more numerous. And as the burden on Congress becomes heavier both in weight and technical difficulty, cost and numbers must increase. For congressional government, as Woodrow Wilson pointed out more than half a century ago, is in many respects committee government. That generalization still holds good although its implications and emphasis have now vastly shifted from the Wilsonian implications and emphasis. The executive departments father more and more legislation, but Congress exercises a parental function whenever it so desires, and even in times of crisis1917, 1933, 1941-when it may seem as if we have Presidential government, Congress reserves the right to, and does, revamp departmental measures. In either case, congressional tasks have become more and more technical, and more and more assistance has been required.

With congressional committees initiating, discussing, and reporting on legislation, clerical assistance to them was inevitable and the strange thing is that it came so late. Not until after the middle of the nineteenth century did even the more important committees adopt the

2 In 1920 Congress cost only $7,959,927 and for staff only $3,000,000. The annual clerk hire allowance for each Representative has been increased progressively since 1907 as follows: On July 1, 1907, from $1,200 to $1,500; July 1, 1917, from $1,500 to $2,000; July 1, 1919, from $2,000 to $3,200 July 1, 1924, from $3,200 to $4,000; July 1, 1929, from -$4,000 to $5,000; and July 1, 1940, from $5,000 to $6,500.

3

practice of appointing full-time clerks. In the case of a few of the important committees of Congress the staffing is expert and there is in fact some permanence of tenure. By and large, however, the positions attached to most congressional committees are contingent upon changes. of political party or the defeat, death, or resignation of a particular Congressman who has been the committee's chairman. Since the positions under a committee are few in number-a clerk, an assistant clerk, and so forth-frequently there is no competent junior who has been waiting for an opportunity of promotion. Such vacancies in many cases must be filled from the outside by inexperienced persons. There has been relatively little shifting from one committee to another. Manifestly the system of committee clerkships has been tied in with clerical assistance to the committee chairmen personally, especially since some committees are relatively inactive for extended periods. In comparison with foreign legislatures, however, Congress has been far from niggardly in providing funds to enable its Members to handle their tasks more efficiently-not only as Members of a legislature charged with responsibility for participating in its work, but also as individuals representing large constituencies. Congressional generosity was inevitable, for each Representative in Congress has a constituency over four times as numerous as the constituency for a member of the House of Commons. Moreover, service in Congress has become more and more of a vocation and less of an avocation; the local interests which Congressmen are supposed to serve impose on Representatives and Senators a larger amount of what Edmund Burke called "mean and petty business" than is imposed on members of the House of Commons. Although congressional salaries are not now Lilliputian, they would have to be Gargantuan if Members were expected to pay their own office expenses."

III

It is curious that, although willing to provide committees and individual Members with clerical assistance, Congress was reluctant to establish an expert drafting service. The importance of such a service was early recognized in Great Britain, but the members of the House of Commons did not need it for themselves because in Great Britain the bulk of legislation has been prepared and introduced by the Cabi

8 In 1856 the appropriation act provided clerk hire for the House Ways and Means and the Senate Finance Committees, but for some years they were the only committees specified in the legislative appropriation acts. Before that date, however, committee clerks were provided for by special resolutions adopted by each House at each session. Appropriations were in lump sums and the clerks were paid on a per diem basis or a fixed amount for the length of the session. Not until around 1900 did the appropriation acts begin to carry items specifying funds for the standing committees in both Houses. The first comprehensive legislative pay act authorizing appropriations for all legislative employees, including committee clerks, was not enacted until 1924. Apparently, however, certain important committees in the House and Senate began to have full-time clerks as follows: In the House Foreign Affairs, Judiciary, Military Affairs, and Naval Affairs-all in 1858; Appropriations, 1865 (year committee was created); Banking and Currency, 1866; Agriculture and Pensions, 1872 Rivers and Harbors, 1884; Merchant Marine and Fisheries, 1888; and the Rules in 1890. In the Senate: Commerce, Foreign Relations, Judiciary, Military Affairs, Naval Affairs, Pensions, and Post Office and Post Roads, 1861; Agriculture and Public Buildings and Grounds, 1864; Appropriations, 1867; Education and Labor, 1870; and Rules, 1876.

Under the redistribution of 1918, a district in England contained approximately 70,000 inhabitants. Under the reapportionment of 1940 there are 435 Representatives for a population of 131,000,000-1 to 300,000.

5 Occasionally an allowance for secretarial assistance is used to supplement a salaryby paying part of the allowance to a member of the Congressman's family-but, in the large, this is unimportant.

net. Judges drafted the earliest acts of Parliament; then the Treasury and the Home Office appointed special counsel, and in 1869 a Treasury Minute established an Office of the Parliamentary Counsel to the Treasury. Its expert draftsmen prepare all Government bills and perfect private members' bills. The process is not hasty. "Sometimes 10 or 15 drafts have to be prepared, and the bill goes backward and forward between the Department and the office until agreement is reached. With a really complicated bill at least 3 months are required for this stage.' 997

8

Congress was late in recognizing the fact that drafting was important and a job for the expert rather than the layman even though he was a lawyer. Until 1918, Representatives and Senators for the most part did their own drafting. Then "The Office of Legislative Council" was established and the House and the Senate now have available the services of well-trained draftsmen. Appointments are made by the Speaker and the Vice President but they rarely do more than approve nominations made by the Office itself. Patronage is barred, and for drafting, it may now be said that Congress has expert staffing. Moreover, the Library of Congress has a Legislative Reference Service which costs $122,000 annually. The assumption is "that the Congress has a right to scholarly research and counsel in law and history and economics at least equal to that of people who come before committees, people who come before Congress with various applications of one kind or another. It is our obligation to present that kind of research and that kind of counsel and we have tried to set up here a service which we think will do that." 10

9

IV

Congressional objections to providing drafting assistance were exceptional. There has been little reluctance to authorizing more and more secretarial aids and clerks. Each Representative is entitled to $6,500 which he may use for "one, two, or three persons," provided "that no person shall receive a salary from such clerk hire at a rate in excess of $3,900 per annum." 12 The arrangement for Senators is different and, in the case of those who are chairman of committees, is tied in with the committees' staffs. A Senator, who is not chairman of one of the 34 committees whose clerical staffs are specially provided for, is entitled to one clerk at $3,900, one at $2,400, one at $2,200, two at $1,800, one at $1,500. If he comes from one of the 14 States with a

A. P. Herbert, The Ayes Have It (London, 1937).

W. I. Jennings, Parliament (New York, and Cambridge, England, 1940), p. 223. 8 Frederick P. Lee in Columbia Law Review, vol. XXIX (1929), p. 379.

Appropriations now total $77,500 annually, and the chief draftsman has a salary of $10,000 which, since it is not less than the salary of a Member of Congress, shows that Congress fully realizes the importance of the work. Draftsmanship of legislation by the Executive is still rather haphazard and draftsmanship of Executive orders even more so, a condition which has occasionally had catastrophic consequences. Panama Refining Company v. Ryan et al., 293 U. S. 388, 415 (1934).

10 Archibald MacLeish (Librarian of Congress), hearings before the subcommittee of the House Committee on Appropriations, House of Representatives on the legislative branch appropriation bill, 1941, p. 93.

11 "I am unwilling to make the admission that if I have a piece of legislation that I think ought to become the law that I am incapaciated, the people who are elected in other districts are incapaciated to do their own thinking and prepare their own bills.

* *

I realize we are getting away from representative government. The old monarchial idea of having men to do this work is growing rapidly. I have not an idea of that kind. I still believe people are capable of electing Members of Congress who can do their own work. I know that the representatives of the people do good work" (Mr. Sisson, in the House of Representatives, January 20, 1923 (Congressional Record, 67th Cong., 4th sess., p. 2154).

12 Public Law 216 of 76th Cong.

population of more than 3,000,000 he can have an additional clerk at $1,500. Thus (apart from the perquisites of chairmanships) 28 Senators may have seven clerks at a total cost of $15,120. They cannot parcel out this amount (as a Representative may his $6,500) subject to the maximum of $3,900. The salaries of a Senator's clerks are fixed by law and if he becomes chairman of a committee his "clerks and assistant clerks shall be ex officio clerks and assistant clerks" of such committee.

For the clerks of Senators who are not chairmen of committees, Congress appropriates $1,080,000 annually. The clerks and assistant clerks of the 34 Senate committees cost a little more than $500,000.13 The Legislative Pay Act of 1929 provides that "where a Senator is the chairman of a committee the clerical force attached to that committee is his secretarial organization as well as the force for the transaction of the committee business."

The different Senate committees have staffs of varying sizes. The Committee on Finance has a clerk and eight assistant clerks ($29,220); the Appropriations Committee has a clerk and seven assistant clerks, whose pay roll amounts to $31,940. Foreign Relations has a clerk and four assistants. Committees like those on Enrolled Bills, Immigration, Interoceanic Canals have staffs of no more than four. This is the minimum, no matter how inactive the committee may be (at a minimum cost of $10,320). Details for all the committees appear in table I.

Thus a Senator who is not chairman of a committee (and who does not come from one of the largest States) may have, as we have said above, six clerks. If he becomes chairman of a committee his three senior clerks staff that committee, but he can get whatever secretarial assistance it is possible for him to wangle from the remaining staff of the committee which is never less than one person and may in the case of Finance be as many as six persons. The chairman of the Senate Indian Affairs Committee, for example, has eight clerical employees, who are paid a total of $21,500. The Committee on Manufactures has six employees, who cost $13,620 and, during a recent 2-year period, held only one meeting. Of the Senate committees, however, only two (Finance and Appropriations) have clerks at salaries higher than $3,900. On the other hand, all but eight senior assistant clerks get more than $2,400 (from $2,580 to $4,800). Hence, it is possible for Senators who are chairmen of committees to pay their assistant clerks more than is received by similar aides to a Senator who does not chair a committee. This is what we have discovered to be the effect of the Legislative Pay Act of 1929, whose provisions, as the reader of the footnote will discover, are none too clear.14 In addition, special assistance is occasionally requested from the executive departments for committees which have heavy burdens. Thus the Senate Naval Affairs Committee now has two clerks seconded to it by the Navy Department. Moreover, additional aides are provided for both the majority and minority leaders in each House. It can hardly be maintained that so far as the mere number of the personnel is concerned, Congress is understaffed.

On the House side, 47 committees have 47 clerks whose salaries range from $8,000 to $2,760. Twenty-two committees have no assistant clerks, but the other 25 committees have 42 assistant clerks, at $5,000

13 Clerks for the 47 House committees cost $320,000 annually; and for the 435 Representatives, $2,847,000.

14 The Legislative Pay Act of 1929 provides: "Clerical assistance to Senators who are not chairmen of the committees specifically provided for herein, as follows: 70 clerks, at $3,900 each; 70 assistant clerks, at $2,400 each; and 70 assistant clerks, at $2,220 each.. Such clerks and assistant clerks shall be ex officio clerks and assistant clerks of any committee of which their Senator is chairman.

"Seventy additional clerks, at $1,800 each, one for each Senator having no more than one clerk and two assistant clerks for himself or for the committee of which he is chairman; messenger, $1,800" (Public Law 17 of 71st Cong.).

The Legislative Pay Act of January 1, 1940, provides that each Senator shall have one additional clerk at $1,800, one additional clerk at $1,500, and "in addition thereto, each Senator from any State which has a population of 3,000,000 or more inhabitants shall be entitled" to one additional clerk at the rate of $1,500. (See Public Law 216 of 76th Cong.)