    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

      H.R. 984, THE EXECUTIVE BRANCH REFORM ACT OF 2007 AND H.R. 985, THE
                WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2007

    =======================================================================

                                    HEARING

                                   before the

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                    H.R. 984

        TO PROVIDE FOR REFORM IN THE OPERATIONS OF THE EXECUTIVE BRANCH

                                     AND ON

                                    H.R. 985

     TO AMEND TITLE 5, UNITED STATES CODE, TO CLARIFY WHICH DISCLOSURES OF
       INFORMATION ARE PROTECTED FROM PROHIBITED PERSONNEL PRACTICES; TO
    REQUIRE A STATEMENT IN NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS TO
      THE EFFECT THAT SUCH POLICIES, FORMS, AND AGREEMENTS ARE CONSISTENT
          WITH CERTAIN DISCLOSURE PROTECTIONS, AND FOR OTHER PURPOSES

                                   __________

                               FEBRUARY 13, 2007

                                   __________

                               Serial No. 110-26

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

      Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                   index.html
                         http://www.oversight.house.gov

                         U.S. GOVERNMENT PRINTING OFFICE

    38-583 PDF                 WASHINGTON DC:  2007
    ---------------------------------------------------------------------
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                 COMMITTEE ON OVERSISGHT AND GOVERNMENT REFORM

                     HENRY A. WAXMAN, California, Chairman
    TOM LANTOS, California               TOM DAVIS, Virginia
    EDOLPHUS TOWNS, New York             DAN BURTON, Indiana
    PAUL E. KANJORSKI, Pennsylvania      CHRISTOPHER SHAYS, Connecticut
    CAROLYN B. MALONEY, New York         JOHN M. McHUGH, New York
    ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
    DENNIS J. KUCINICH, Ohio             MARK E. SOUDER, Indiana
    DANNY K. DAVIS, Illinois             TODD RUSSELL PLATTS, Pennsylvania
    JOHN F. TIERNEY, Massachusetts       CHRIS CANNON, Utah
    WM. LACY CLAY, Missouri              JOHN J. DUNCAN, Jr., Tennessee
    DIANE E. WATSON, California          MICHAEL R. TURNER, Ohio
    STEPHEN F. LYNCH, Massachusetts      DARRELL E. ISSA, California
    BRIAN HIGGINS, New York              KENNY MARCHANT, Texas
    JOHN A. YARMUTH, Kentucky            LYNN A. WESTMORELAND, Georgia
    BRUCE L. BRALEY, Iowa                PATRICK T. McHENRY, North Carolina
    ELEANOR HOLMES NORTON, District of   VIRGINIA FOXX, North Carolina
        Columbia                         BRIAN P. BILBRAY, California
    BETTY McCOLLUM, Minnesota            BILL SALI, Idaho
    JIM COOPER, Tennessee                ------ ------
    CHRIS VAN HOLLEN, Maryland
    PAUL W. HODES, New Hampshire
    CHRISTOPHER S. MURPHY, Connecticut
    JOHN P. SARBANES, Maryland
    PETER WELCH, Vermont

                         Phil Schiliro, Chief of Staff
                          Phil Barnett, Staff Director
                           Earley Green, Chief Clerk
                      David Marin, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on February 13, 2007................................     1
    Text of H.R. 984.................................................    10
    Text of H.R. 985.................................................    32
    Statement of:
        Thurber, James A., Ph.D., director and distinguished
          professor, Center for Congressional and Presidential
          Studies, American University; Fred Wertheimer, president
          and CEO, Democracy 21; and Craig Holman, Ph.D., legislative
          representative, Public Citizen.............................    61
            Holman, Craig............................................    87
            Thurber, James A.........................................    61
            Wertheimer, Fred.........................................    80
        Weaver, William G., Ph.D., associate professor, University of
          Texas at El Paso; Nick Schwellenbach, investigator, Project
          on Government Oversight; Thomas Devine, legal director,
          Government Accountability Project; and Mark S. Zaid,
          attorney, Krieger and Zaid, PLLC...........................   178
            Devine, Thomas...........................................   206
            Schwellenbach, Nick......................................   189
            Weaver, William G........................................   178
            Zaid, Mark S.............................................   240
    Letters, statements, etc., submitted for the record by:
        Davis, Hon. Tom, a Representative in Congress from the State
          of Virginia, prepared statement of.........................    59
        Devine, Thomas, legal director, Government Accountability
          Project, prepared statement of.............................   208
        Holman, Craig, Ph.D., legislative representative, Public
          Citizen:
            Prepared statement of....................................   163
            Revolving Door Working Group paper.......................    88
        Schwellenbach, Nick, investigator, Project on Government
          Oversight, prepared statement of...........................   191
        Thurber, James A., Ph.D., director and distinguished
          professor, Center for Congressional and Presidential
          Studies, American University, prepared statement of........    65
        Waxman, Hon. Henry A., a Representative in Congress from the
          State of California, prepared statement of.................     4
        Weaver, William G., Ph.D., associate professor, University of
          Texas at El Paso, prepared statement of....................   180
        Wertheimer, Fred, president and CEO, Democracy 21, prepared
          statement of...............................................    82
        Zaid, Mark S., attorney, Krieger and Zaid, PLLC, prepared
          statement of...............................................   243

      H.R. 984, THE EXECUTIVE BRANCH REFORM ACT OF 2007 AND H.R. 985, THE
                WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2007

                                  ----------

                           TUESDAY, FEBRUARY 13, 2007

                              House of Representatives,
                  Committee on Oversight and Government Reform,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10 a.m., in room
    2154, Rayburn House Office Building, Hon. Henry A. Waxman
    (chairman of the committee) presiding.
        Present: Representatives Waxman, Cummings, Tierney, Watson,
    Yarmuth, Braley, McCollum, Cooper, Davis of Virginia, Shays,
    Platts, Issa, and Sali.
        Staff present: Phil Schiliro, chief of staff; Phil Barnett,
    staff director and chief counsel; Kristin Amerling, general
    counsel; Karen Lightfoot, communications director and senior
    policy advisor; Michelle Ash, chief legislative counsel; Mark
    Stephenson, professional staff member; Earley Green, chief
    clerk; Teresa Coufal, deputy clerk; Davis Hake, staff
    assistant; Leneal Scott, information officer; David Marin,
    minority staff director; Larry Halloran, minority deputy staff
    director; Jennifer Safavian, minority chief counsel for
    oversight and investigations; Keith Ausbrook, minority chief
    counsel; Ellen Brown, minority legislative director and senior
    policy counsel; Mason Alinger, minority deputy legislative
    director; John Brosnan, minority senior procurement counsel;
    Jim Moore, minority counsel; Patrick Lyden, minority
    parliamentarian & member services coordinator; Benjamin Chance,
    minority clerk; and Bill Womack, minority legislative director.
        Chairman Waxman. The meeting of the committee will come to
    order.
        Today the committee holds a hearing on two bills, the
    executive branch Reform Act and the Whistleblower Protection
    Enhancement Act. Both of these bills are the product of hard
    work and close bipartisan cooperation. Both of these measures
    were also reported out by this committee on near unanimous
    votes in the last Congress.
        Last year when we marked up these bills, I said they were
    an example of how Congress ought to work. I still feel that
    way, and I want to thank Ranking Member Davis for all the
    effort he has put into these measures, and for the truly
    bipartisan spirit with which he has approached these issues.
        The indictments and scandals that have gripped Washington
    in recent years are proof that our existing laws need to be
    strengthened. The public wants honesty and accountability in
    Government and it is our job in the Oversight Committee to take
    the lead on reform.
        At the end of the last Congress, Ranking Member Davis and I
    released a bipartisan report on Jack Abramoff's contacts with
    White House officials. Our report offered ``an unusually
    detailed glimpse into a sordid subculture of fraud and
    attempted influence peddling.'' We undertook this investigation
    because we wanted to learn what reforms would protect the
    integrity and increase the transparency of Government. We were
    able to reach agreement on a report about Jack Abramoff,
    because we decided to let the facts speak for themselves and
    avoid characterizations, inferences and spin. Although we drew
    somewhat different conclusions from the facts we recounted, we
    did reach agreement about the need for fundamental reform.
        We recognized that changes in the law were needed to bring
    greater transparency to meetings between the private sector and
    executive branch officials by requiring all political
    appointees and senior officials in Federal agencies and the
    White House to report their contacts with private parties
    seeking to influence official Government action. Today, we
    begin this reform process. The executive branch Reform Act,
    which Ranking Member Davis and I have introduced, is a
    comprehensive reform measure that would increase transparency
    in the executive branch by requiring senior Government
    officials to report significant contacts with lobbyists. It
    would end the secret meetings between special interests and
    Government officials that characterize the operation of Vice
    President Cheney's Energy Task Force, and it would expose the
    activities of influence peddlers like Jack Abramoff to public
    scrutiny. That is why this bill may be the most significant
    open Government legislation since the enactment of the Freedom
    of Information Act.
        Today we will also be considering the Whistleblower
    Protection Enhancement Act. This important bill would for the
    first time extend whistleblower protections to national
    security officials and employees of Federal contractors. It
    would make key improvements to current law to protect all
    whistleblowers in Federal Government agencies and it would
    ensure that Federal scientists who report political
    interference with their work are protected from retribution.
        A key component of accountability is whistleblower
    protection. Federal employees are on the inside, they see when
    taxpayer dollars are wasted. They are often the first to see
    the signals of corrupt or incompetent management; yet without
    adequate protections, they cannot step forward to blow the
    whistle. There are many Federal Government workers who deserve
    whistleblower protection but perhaps none more than national
    security officials. These are Federal Government employees who
    have undergone extensive background investigations, obtained
    security clearances and handled classified information on a
    routine basis. Our own Government has concluded that they can
    be trusted to work on the most sensitive law enforcement and
    intelligence projects. Yet these officials receive no
    protection when they come forward to identify abuses that are
    undermining our national security. This bill would finally give
    these courageous individuals the protections they deserve.
        I am very proud of the leadership role of our committee on
    a bipartisan basis in taking on these important bills . We are
    the committee with the authority to reform the ethics laws that
    govern the executive branch of the Federal Government. We are
    the committee with the authority to restore the principles of
    open Government. And we are the committee with the authority to
    close the revolving door between Federal agencies and the
    private sector to ban secret meetings between Government
    officials and lobbyists and to halt procurement abuses. To meet
    these challenges, we must use our broad oversight power to
    investigate and expose abuses.
        But we should not stop there. We should also use our
    legislative authority to draft essential reforms. And today we
    begin in this important legislative process.
        [The prepared statement of Hon. Henry A. Waxman and the
    texts of H.R. 984 and 985 follow:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Waxman. At this point, I want to recognize the
    ranking member of the committee, Mr. Davis.
        Mr. Davis of Virginia. Thank you, Mr. Chairman. I think it
    says a great deal about our working relationship that the first
    legislative hearing under your leadership continues the
    committee's consideration of two bills that you and I worked
    together on last year, but were unable to get enacted into law
    before the session ended. Both proposals are aimed at improving
    transparency in Government as a way of restoring trust in how
    the public's business is conducted.
        The first bill being discussed today is the executive
    branch Reform Act. Chairman Waxman and I introduced
    substantially the same legislation last April, which the
    committee approved by a vote of 32 to nothing. In addition to
    other reforms, the legislation would ensure that the behavior
    of our public servants is above reproach, by requiring
    executive branch officials to disclose any contacts involving
    the discussion of pending agency business. In doing so, this
    legislation attempts to strike that fine balance between
    reasonable and focused rules of ethical behavior and overly
    broad restrictions and prohibitions that hamstring agency
    officials and prevent them from exercising the discretion
    needed to perform their missions on behalf of our citizens.
        I applaud Chairman Waxman's continued focus on this issue.
    I look forward to working with him to improve this legislation
    as it moves forward.
        The second bill being discussed today is the Whistleblower
    Protection Enhancement Act. Last year's version of this
    legislation, sponsored by our colleague, Representative Todd
    Platts, was reported by this committee on a 34 to 1 vote. In a
    nutshell, the bill would modernize, clarify and expand Federal
    employee whistleblower protection laws. The most significant
    reform would guarantee Federal employees a right to a jury
    trial in Federal court if the Merit Systems Protection Board
    does not take action on a claim within 180 days. Recourse for
    whistleblowers victimized by retaliatory actions in certain
    national security agencies would also be strengthened.
        In addition to the witnesses before us today, I have
    encouraged affected branch agencies, specifically the Merit
    Systems Protection Board, the Office of Government Ethics, the
    Office of Federal Procurement Policy and the Department of
    Justice to submit comments for the record regarding these
    proposals. Chairman Waxman, despite the fact that we are
    scheduled to mark up these bills soon, I hope you will keep the
    record open long enough for these stakeholders to have their
    comments included for future reference.
        I want to thank you again, and I look forward to hearing
    from our witnesses.
        [The prepared statement of Hon. Tom Davis follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Waxman. Thank you. I think that is an excellent
    suggestion. We will keep the record open for 7 days for Members
    to put in opening statements and for any other submissions that
    stakeholders may have on this legislation.
        I want to call on Members who may wish to deliver an
    opening statement at this time. But I want to acknowledge the
    work of Congressman Platts as the chairman of the subcommittee
    particularly on the Whistleblower Bill and recognize him for
    any comments he wishes to make. I congratulate you and express
    the appreciation of all of us for the hard work you put into
    that legislation.
        Mr. Platts. Thank you, Mr. Chairman. I appreciate your kind
    words, and especially appreciate this hearing on two very
    important pieces of legislation that are very much focused on
    open and accountable Government. I obviously am especially
    pleased that we are addressing the Whistleblower Protection Act
    today and am honored to be serving with you as co-sponsor of
    the legislation and the planned markup of both of these pieces
    of legislation tomorrow.
        Also I want to recognize Ranking Member Davis for his
    leadership the past 4 years, working with you on this committee
    for the good of open and accountable Government and know that
    through these bipartisan efforts we are going to have success
    and move these pieces of legislation forward out of committee
    and hopefully through the House and Senate and to the
    President's desk. I think that what the American people, when
    they look to their Government, they may not always agree with
    every action their Government takes, but if they know it is
    done in the light of day and in a responsible manner, without
    undue influence from outside, and where there is wrongdoing, we
    hold those involved accountable, they will respect their
    Government. The Whistleblower Protection Act is about ensuring
    that when there is wrongdoing, waste, fraud, mismanagement,
    that the public servants know they can come forward and present
    that information and not be at risk of demotions or other harm
    to their own careers for doing the right thing for the American
    people.
        So again, my sincere thanks, Mr. Chairman, for your holding
    this hearing, and determined commitment to moving these issues
    forward for the good of the American public. Thank you, Mr.
    Chairman.
        Chairman Waxman. Thank you very much for your comments.
        Anyone else wish to make an opening statement? If not, we
    will proceed to our hearing.
        We are pleased to have three witnesses on our first panel.
    Dr. James Thurber, the distinguished professor and director of
    the Center for congressional and Presidential Studies at
    American University. He is a well-known expert on ethics and
    lobbying. Fred Wertheimer, president and founder of Democracy
    21 is an accomplished and effective advocate of Government
    ethics and accountability. And Craig Holman, who is
    representing Public Citizen, has closely studied the problem of
    revolving door and other challenges to integrity in governance.
        It is our practice in this committee to swear in all
    witnesses. So I would like to ask you, if you would, to please
    stand and raise your right hands.
        [Witnesses sworn.]
        Chairman Waxman. The record will indicate that each of the
    witnesses answered in the affirmative.
        Dr. Thurber, why don't we start with you?

          STATEMENTS OF JAMES A. THURBER, PH.D., DIRECTOR AND
         DISTINGUISHED PROFESSOR, CENTER FOR CONGRESSIONAL AND
      PRESIDENTIAL STUDIES, AMERICAN UNIVERSITY; FRED WERTHEIMER,
       PRESIDENT AND CEO, DEMOCRACY 21; AND CRAIG HOLMAN, PH.D.,
               LEGISLATIVE REPRESENTATIVE, PUBLIC CITIZEN

                     STATEMENT OF JAMES A. THURBER

        Mr. Thurber. Good morning, Mr. Chairman and ranking member,
    Mr. Davis, members of the committee. I am pleased to accept
    this invitation to comment on the executive branch act of 2007.
        I will be focused on three things, one in particular the
    problems that exist with respect to lobbying the executive
    branch and the problems of revolving door in and out of
    Government and conflict of interest. Second, the current
    attempt to solve those problems in your bill. But also I will
    make some recommendations for additional solutions with respect
    to that.
        I would like to summarize my remarks and keep it short. I
    assume that the remarks will be placed in the record and that I
    am open to questions later on about those remarks. But the
    summary is as follows.
        I would like to remind you of something that the audience
    knows. And by the way, I have several students in the audience.
    I am very pleased about that, because they have taken my ethics
    and lobbying class and several work on committees on the Hill,
    they are probably working right now, they cannot come to the
    meeting. So this is important to me in terms of my mentoring
    them as well as educating them.
        I would like to remind the committee that Congress is only
    part of the ethics and lobbying problem. In fact, the laws that
    exist and also the two proposals out of the House and the
    Senate with respect to lobbying I think do not appropriately
    focus on the question of where most of the lobbying goes on in
    Washington, DC. That is not on the Hill, it is with the
    executive branch. There are 31,000 registered lobbyists. There
    is some discussion about whether that is accurate or not. But
    in my opinion, there are probably twice as many people actually
    in the business of lobbying in Washington, DC, if you take into
    account people trying to change contracts, expand the scope and
    size of contracts, influence the request for proposals that
    come out so that only one company is eligible, really, to bid
    on that proposal, the total cost of lobbying in Washington in
    2005, as registered through the House and the Senate records,
    was $2.8 billion, $2.8 billion. I think it is probably at least
    double that if you look at the people lobbying the regulatory
    process, the contract process, selling things to the
    Government, expanding contracts in secret.
        The public confidence in Congress was at a historic low and
    a major issue in the 2006 election. But the public confidence
    in Government was also low. This bill and the problems address
    in this bill, in my opinion, address that question of the
    integrity of our Government generally. I think it goes a long
    way toward doing that.
        The public interest is undermined when a narrow set of
    public interests meet in secret in Government, and when no-bid
    contracts for Government projects are awarded to political
    friends. And also when people who are working in Government
    leave and immediately work for corporations and make millions
    of dollars going back to the same organization, not exactly in
    the same area where they worked, but generally the same
    organization, like in the Department of Homeland Security. I
    think that there is little transparency in the Federal
    contracting process, and even less when it comes to lobbying
    executive branch officials for contracts. And I think this bill
    helps to improve transparency.
        I think though the bill has an inappropriately limiting
    definition of lobbying. The 1995 Lobbying Registration Act has
    a narrow definition of lobbying as to who the people in the
    executive branch that lobbyists must record, but also what they
    do. Your act, I think your act would be improved if you
    referred to those definitions in existing law and also the law
    that may indeed be changed as a result of actions of the House
    and the Senate.
        I think the best way to eliminate the potential evils of
    secret meetings is to make them open or at least make them
    transparent through prompt and accurate reporting of their
    occurrence, on a quarterly basis, as you have recommended.
    Again, I think you should adopt similar requirements for those
    who lobby the Congress as with the executive branch, make them
    parallel.
        Attention should be paid, again, to the hundreds of secret
    meetings that happen each week between Government executives
    and lobbyists for private interests who are seeking Federal
    contracts or contract extensions. This is especially important,
    because if there is an existing contract and there is a meeting
    to expand the scope of that contract, that was what the
    situation was with Duke Cunningham. Or individuals who seek to
    influence the Federal regulatory process. I think there are
    many people doing that that are not covered under the 1946
    Administrative Procedures Act, and are not registering and have
    undue influence.
        Let's focus on revolving door problems. There is a rapidly
    revolving door, as we know, between the private sector and K
    Street. Craig Holman's group has done a great job documenting
    that. I won't go through the documentation of all the
    specifics. But what does that do? It creates an unlevel playing
    field for some well-connected Government contractors when this
    happens. Since we are contracting out so much work from this
    Federal Government, Paul Light has documented the contracting
    out of many basic functions, this is a very important thing to
    focus on. The revolving door problem between K Street and the
    executive branch seems to be getting worse. The Reagan
    administration had 214 top level officials go through the
    revolving door to areas that they were involved with when they
    were in Government. Clinton had 268 and this Bush
    administration so far has had 253 officials leave their top
    Government offices for lobbying jobs or jobs in the private
    sector related to their Government responsibilities.
        For example, 90 Department of Homeland Security officials
    have left Government service to become consultants, lobbyists
    or executives for companies doing business with the Federal
    Government within a few weeks, including Secretary Tom Ridge.
    More than two-thirds of the top DHS officials left for the
    private sector in the Department's first years. It has been a
    revolving door that has caused management problems at DHS, but
    also conflict of interest issues on the outside.
        The current law, as you know, prohibits Federal Government
    employees from lobbying their former employers for 1 year. But
    a loophole created at DHS only prohibits former employees from
    lobbying certain agencies within DHS, which means that they can
    still lobby other agencies within the Department immediately
    after they leave. This loophole was created in 2004 when the
    top DHS ethics officials got approval from the Office of
    Government Ethics to divide the Department into seven sections
    for conflict of interest purposes. You work in one section, you
    can contact the six other sections and lobby for your client in
    those sections.
        If you look at the special study, the Revolving Door
    Working Group, which Craig I am sure will talk about later, and
    therefore I will not summarize it, they have listed at least 12
    major illegal actions that are going on as a result of the
    revolving door, including handing out favors to former clients,
    writing the specifications for the request for proposal so that
    they can only be met by a friend or former employee, and other
    issues like that.
        What are the solutions? Well, I think this bill goes a long
    way toward solving these two problems of transparency in terms
    of lobbyists meeting with executive branch officials, executive
    branch officials being required to record that. Some people say
    that it is too onerous. Every executive branch official has
    their schedule electronically set. I think that it is
    reasonable in a democracy to make that transparent as to who is
    visiting them, what they are talking about, the purpose of it.
        But also I would add, by the way, to your bill, where it
    takes place. It may take place on a golf course. Or it may take
    place at some resort, not just in their office. We need to know
    about that, in my opinion.
        Solutions. What are the solutions to ending secret meetings
    and conflicts of interest stemming from the revolving door and
    in and out of Government? Your bill does a great job. Let me
    just focus on some items where you should go further.
        Chairman Waxman. Dr. Thurber, could you try to summarize?
    The whole testimony is going to be in the record.
        Mr. Thurber. Let me just summarize by saying that I think
    you should look carefully, as I said before, at existing law
    for the lobbyists, and apply that to the executives in terms of
    recording. And also focus on enforcement of existing law with
    respect to the lobbyists. I know it is out of your
    jurisdiction, but enforcement of the executive branch. I think
    a lot of people are breaking the law right now in terms of
    this.
        I would also extend the cooling off period to 2 years. And
    as in your bill, I have mentioned some waivers that you should
    look at besides the waivers that you have indicated. Waivers
    are too easy for people to get in many cases, in terms of the
    revolving door. Then also shut-down on negotiation of jobs
    while they are in their position. It is against the law now,
    shut down those waivers, and I think the bill goes a long way
    toward that.
        Thank you very much. If you have any questions, I would be
    pleased to answer them.
        [The prepared statement of Mr. Thurber follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Waxman. Thank you very much. We appreciate your
    testimony.
        Mr. Wertheimer, again, to you and all the witnesses who
    appear today, the prepared statement will be made a part of the
    record in its entirety. We would like to ask you to stick to
    around 5 minutes in summary.

                      STATEMENT OF FRED WERTHEIMER

        Mr. Wertheimer. Chairman Waxman, Ranking Member Davis and
    members of the committee, we very much appreciate the
    opportunity to testify today. At the outset, I would just like
    to remark that at a time when we all see and face heavy
    polarization in Congress, it has been very impressive to see
    this committee deal with these bills in the last Congress and
    hopefully in this Congress on an almost unanimous bipartisan
    basis, this bill in particular on a unanimous basis. We very
    much appreciate the bipartisan leadership that you, Mr.
    Chairman, and Ranking Member Davis have shown here to help
    create the context for which this happened; also the leadership
    that Representative Platts has shown.
        This issue is being considered at a time when the public as
    been deeply concerned about corruption and ethics concerns in
    Congress. Government integrity reforms matter. People often
    like to say that you can't legislate morality, and that is
    probably true. But you can legislate the way people conduct
    their affairs, you can legislate conduct. And Government
    integrity reforms have done that, they have been successful in
    the past. A number of Government integrity reforms over many
    years in Congress have worked.
        The opportunity to enact these kinds of reforms comes in
    cycles. And it usually comes when problems get out of control,
    and we are in such a period now. This Congress is off to an
    excellent start, in our view. The House ethics reforms enacted
    in January were landmark reforms. The Senate has passed similar
    reforms. Most of the reform efforts to date have focused on
    Congress and we are pleased that this committee is focused on
    reforms that are needed in the executive branch.
        The bill this committee reported out last year, as I
    mentioned, was reported out 32 to nothing, unanimous bipartisan
    support. We take that to mean that it reflects a consensus view
    on this committee about the proposals that were contained in
    that legislation. I would like to just add a few thoughts on
    three sections of the executive branch reform bill.
        The contacts provision would bring sunlight to the process.
    That is important, and it is valuable. It would provide the
    public with a much clearer picture of the efforts being
    undertaken to influence the executive branch. The information
    according to the legislation would be made available in a
    searchable data base at the Office of Government Ethics. I
    would just add and recommend that the committee make clear that
    that data base should be made available on the Internet to the
    public, so citizens can get direct access to this information.
    If the information is not available on the Internet, you
    greatly limit the ability of people who can go over to OGE and
    check out the reports and information.
        We also very much support the changes being made in the
    revolving door provisions. We recommend that in addition to
    increasing the revolving door provision to 2 years, that the
    committee, as Dr. Thurber said, look to the definitions in the
    lobbying disclosure bill and include lobbying activities as
    well as lobbying contacts in the restriction. If you are trying
    to create a cooling off period between an executive branch
    official leaving and taking advantage of the contacts,
    information, etc., that he had while at the executive branch,
    then lobbying contacts, in our view, is too narrow, and it
    should go beyond to the definition contained of lobbying
    activities, planning, strategizing, arranging for a lobbying
    effort.
        We also support and think it is an important addition to
    cover the reverse revolving door problem. That is a very
    important issue. The idea of someone coming into executive
    branch from an organization and immediately turning around and
    making decisions to provide grants or policy positions to that
    organization is not defensible. This would really extend this
    idea, perhaps for the first time. We also support your effort
    to extend this to Government contractors.
        In conclusion, this is good legislation. It is important
    legislation. It advances the interests of the public in knowing
    what is going on in the executive branch. It is a good balance
    in terms of the revolving door provisions which have to be
    balanced between protecting the integrity of Government
    decisions and allowing people to come back and forth in
    Government. We think the committee did a very good job last
    time, and with the suggestions we made, we very much support
    this legislation.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Wertheimer follows:]

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        Chairman Waxman. Thank you very much, Mr. Wertheimer.
        Dr. Holman.

                       STATEMENT OF CRAIG HOLMAN

        Mr. Holman. Chairman Waxman, Ranking Member Davis, I want
    to thank you for the opportunity to testify on behalf of Public
    Citizen and our 100,000 members.
        I also want to echo Mr. Wertheimer's praise for the work of
    this committee when it comes to lobbying and ethics reform. A
    lot of good work has come out of this committee, and praise is
    appropriate.
        In order to address the wave of scandals that has swept
    over Washington, DC, the debate, as this committee recognizes,
    must include lobbying and ethics laws as they relate to the
    executive branch. As documented in this report, A Matter of
    Trust, which was put together by a coalition of 15 different
    civic organizations called the Revolving Door Working Group, we
    analyzed at least two major issues that need to be addressed
    when it comes to lobbying and ethics in the executive branch. I
    ask that this report be entered as part of the record.
        Chairman Waxman. Without objection, so ordered.
        [The information referred to follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Holman. One of the first issues which both the
    witnesses here brought up already is the revolving door. The
    term revolving door is when corporations or other special
    interests develop a very close relationship with Government
    through the moving of key individuals back and forth between
    the private sector and the public sector. Efforts to regulate
    the revolving door, the current efforts, have fallen short on
    at least three different reasons.
        First, the recusal requirements for former private sector
    employees who are now public officials with oversight over
    their same businesses are very weak, often allowing a newly
    appointed official to take actions that affect their former
    employers. In many instances, recusal is merely advised. It is
    not mandatory. It is up to the official him or herself to
    determine whether or not an actual conflict of interest exists
    and the conflict can be easily waived by the ethics officer of
    that particular division.
        One of the second problems is, thought there is a 1-year
    cooling off period prohibiting procurement officers from taking
    jobs with companies that they have issued contracts to, it
    applies only to divisions within the same company, not the
    company itself. And third, while Federal law prohibits former
    covered officials from making direct lobbying contacts for 1
    year, it does not apply to lobbying activities as defined by
    the LDA. Lobbying activities includes engaging, organizing,
    strategizing, overseeing the entire lobbying drive itself. And
    that is not subject to the cooling off period, which allows
    former officials to immediately spin through the revolving door
    and become lobbyists, registered lobbyists or conducting
    lobbying activity.
        The executive branch Reform Act goes a long way toward
    helping address these problems in the executive branch. First
    of all, it strengthens recusal requirements, which is
    excellent. Third, it prohibits negotiating future employments
    by public officials with companies that have business pending
    before them. And third, it does extend the revolving door
    lobbying contact prohibition from 1 year to 2 years.
        Public Citizen encourages the committee to consider some
    strengthening amendments beyond that. Most importantly, extend
    the scope of the revolving door prohibition to include a very
    narrow definition of lobbying activities: those activities that
    are done specifically at the time with the intent to facilitate
    a lobbying contact. That should be included within the cooling
    off period. Second, the cooling off period for former
    procurement officers should apply company-wide, and not just to
    divisions within the company.
        The second issue that I want to briefly touch upon is
    ethics oversight in the executive branch. The Office of
    Government Ethics is charged with ethics oversight, and they
    are a very professional organization, a very well trained
    agency. The problem is, they have three structural flaws by
    statutes. One is they are only advisory agency. They have no
    actual authority to do much other than advise and try to
    educate and train the other executive branch officials.
        Second, responsibility for ethics is dispersed among more
    than 6,000 ethics officers within the various agencies of the
    executive branch. They are the ones who are actually making the
    decisions on ethics. There is no oversight, there is no uniform
    interpretation and application of the ethics rules. And third,
    OGE does not serve as a clearinghouse for public records. As a
    matter of fact, they don't even have a public reading room to
    go there and peruse, for the public to peruse through these
    records. The executive branch Reform Act does a lot to help
    strengthen oversight. It does provide a systematic record of
    lobbying contacts and it strengthens the waiver process for
    conflict of interest.
        But I would like to also recommend that some fundamental
    restructuring needs to be done with OGE. They need to be made
    not an advisory agency but an actual watchdog agency that has
    the authority to promulgate rules and regulations and monitor
    compliance. No one else is doing this. Second, they must be
    made into a central clearinghouse for public records. There is
    nowhere to go to find out what is going on when it comes to
    ethics and contracting in the executive branch. There is no Web
    site, there is no library. OGE would be perfectly situated to
    be that central clearinghouse.
        Thank you.
        [The prepared statement of Mr. Holman follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Chairman Waxman. Thank you very much.
        I want to thank the three of you for your presentation and
    your suggestions. I think we all look at them very carefully.
        Last Congress, when we introduced this bill, we also looked
    at the contacts that Jack Abramoff and his lobbying team had
    with the executive branch. We found that there were 485
    instances of lobbying contacts that Mr. Abramoff or his
    associates had with White House officials. These included 185
    meetings over meals and drinks, many at expensive restaurants
    throughout Washington. There were also 82 meetings, phone calls
    or other interactions with the Office of Senior Advisor to the
    President, Carl Rove, and 17 such contacts with the White House
    Office of Political Affairs. That is one thing we found.
        Second, we found that there was no record of any of these
    contacts, and when Scott McClelland, the White House spokesman,
    was asked about Mr. Abramoff's White House contacts, he
    asserted ``there were only a couple of holiday receptions that
    he attended, and a few staff-level meetings on top of that.''
    We reviewed the lobby disclosure forms and they provided almost
    no information. All they said was that members of Mr.
    Abramoff's team contacted the Executive Office of the President
    on behalf of certain clients. We had to launch a 7-month
    investigation simply to understand the number of times Mr.
    Abramoff and his lobbying team contacted the White House and
    the issues they were lobbying on.
        I feel, and I gather from your testimony you also feel that
    we need to strengthen current law which is inadequate,
    insufficient. We need more disclosure about the interactions
    between lobbyists and executive branch officials.
        But some people have said to me, if you have to keep a log
    of all of these contacts, and it is on the golf course, it is a
    social reception, people may forget and therefore be attacked
    as having violated the ethics rules. Does that bother you? What
    kind of burden will that put on people to keep track of all
    these casual interactions, which may well be very much a
    lobbying contact but unexpected, not a set meeting? Dr.
    Thurber.
        Mr. Thurber. It doesn't bother me. In fact, the Abramoff
    contacts in oral and written communication right now should
    have indicated the time spent as well as the amount of money
    spent as well as the subject matter. And it should have
    included where, according to the law. And that is with respect
    to the formulation, modification or adoption of Federal
    legislation and rules, regulations, policies or administration
    of a Federal program including Federal contract, grant or
    license.
        I want to emphasize that, because there is a whole lot of
    lobbying going on with contracts in Washington. I have said
    this before, I think we need to make that transparent. I think
    that this is a reasonable thing to ask a public official to do
    in our democracy. It will bring trust and it will bring more
    transparency so we can ferret out problems.
        That is one of the obligations of public service, in my
    opinion, is to let people know what you are doing. And if it is
    on a golf course, so be it.
        Chairman Waxman. Mr. Wertheimer.
        Mr. Wertheimer. Obviously it is easier to keep track of
    this information when it is happening in offices. Executive
    branch officials are going to have schedules of who they met
    with often. I don't think it is a hindrance to cover other
    activities. I think every executive branch official should be
    on notice that if something starts to come up, they can just
    cut it off and say, I am not here to discuss this. This is not
    the time or place.
        Now, I would also just note for the committee's information
    that in other aspects of lobbying disclosure laws like, for
    example, the requirement that lobbying organizations report how
    much money they have spent in a quarter, the concept of good
    faith estimate has been used there. That is a little trickier
    when you are dealing with specific meetings. You could, if you
    wanted to, try to devise some type of protection there against
    inadvertent problems for meetings that don't take place in the
    office.
        For us, we are comfortable with the provision the way it
    is. But we also point out that there are other ways of both
    imposing this requirement while leaving a little room for
    inadvertent mistakes.
        Chairman Waxman. Thank you very much.
        Dr. Holman, did you want to comment on that?
        Mr. Holman. It is an excellent proposal, as long as it is
    implemented exactly the way it is intended. The straw man
    argument that is imposed against reporting of lobbying contacts
    is some of the examples that you were bringing up, that if I
    walk through the hallway here as a registered lobbyist and I
    accidentally run into covered officials, I have to start
    reporting that I ran into covered officials.
        That is not the intent of this, or even at social events,
    quite frankly. That is not the intent of this sort of lobbying
    contact disclosure. The intent is to use the definition of
    lobbying contacts and lobbying activity as defined in the LDA.
    That is having a contact and a discussion that is specifically
    designed to promote a particular legislative issue, an actual
    lobbying contact. It is not burden at all to require lobbyists,
    and speaking as a lobbyist, to require us to record, or public
    officials to record contacts we have had with covered officials
    for lobbying purposes.
        I know everyone I run into who I am lobbying. It is no
    problem for me to record this. And it should not be any problem
    for anyone else.
        I would probably limit it to oral and in-person contacts,
    as opposed to written contacts. A lot of organizations will
    send out these fax blasts and stuff. I don't think that is what
    is intended to be included in that provision.
        Chairman Waxman. Thank you.
        Mr. Davis.
        Mr. Davis of Virginia. Thank you. We have gotten some
    comments from the Office of Personnel Management, and I wonder
    if you could address them. One of the concerns is a concern of
    this committee, too, but OPM has recently predicted that a peak
    of Federal retirements will occur between 2008 and 2010 and
    that the loss of so many individuals with a deep, ingrained
    institutional knowledge of their agency has the potential to
    cause a lapse or pause of service delivery.
        The concern is if you were to extend the time from 1 year
    to 2 years that this would in fact hasten many of these
    individuals leaving. Their comment is, although these
    provisions are intended to address recent unethical conduct of
    Government procurement officials, the provisions may have the
    unintended effect of harming the career prospects of the
    overwhelming number of honest, experienced Government employees
    and encourage such individuals to leave Government service
    early.
        They note that a January 2006 report by the Office of
    Government Ethics to the President and Congress noted numerous
    concerns about the impact of laws restricting post-Government
    employment, including a statement from the National Academy of
    Science that ``The laws restricting post-Government employment
    have become the biggest disincentive to public service.'' How
    do we balance this? I would be very interested in your
    comments.
        Mr. Wertheimer. I think the legislation does balance it.
    The committee report starts off, and you mentioned this, I
    believe, Mr. Davis, this is a balancing act. You are trying to
    both protect the integrity of Government decisions and the
    ability of the public to have confidence that those decisions
    are being made in their interest with the ability of people to
    enter and leave the Government.
        However, Government service is a privilege. It is not an
    obligation. When you make a judgment or if you are serving in
    that position, part of your responsibilities is to do it in
    ways that protect ultimately the ability of citizens to be
    confident in how their Government is functioning. The problem
    raised about, this will affect people potentially prematurely
    leaving, is a problem that exists at any time that you would
    make this kind of decision. We think a 2-year period is fair
    and appropriate. And as you know, there have been longer
    periods proposed in the past.
        So I just, I don't think that argument holds up here.
    People have to adjust and keep in mind when they join the
    Government that they are working for the Government under a set
    of rules that are important for the interests of citizens. I
    don't think that argument holds up.
        Mr. Davis of Virginia. Before you comment, Doctor, let me
    just throw out this. We sit here trying to recruit very high
    level professional and technical people. We held a hearing here
    last week where the Coast Guard got up and said, we outsource
    because we don't have the in-house capabilities, we can't find
    the capabilities of getting people in to do some of these high
    level jobs. And of course, once you outsource it, you lose any
    kind of control whatsoever. So that is part of the balancing as
    we look through this in terms of seeing what unintended
    consequences could result.
        Dr. Thurber.
        Mr. Thurber. As part of that, just to comment on that, and
    it has always been this way, it might be with respect to
    salaries and the fact that contractors pay or think tanks or
    whoever pays a much higher salary sometimes for people to do
    the jobs that are needed inside, so people do not want to leave
    when they have the opportunity to do it through a contract.
        I just want to point out that when individuals at a certain
    level leave Government, they have under the law the obligation
    to report back to the Office of Government Ethics. They have an
    ethics officer for the rest of their life, their professional
    life now. And the ones that have a lot of integrity continue to
    ask, is this OK, is this OK.
        That is where most of these people are in terms of their
    own personal ethics. It is the ones that are on the edge that
    this is about. I think it deals with that.
        The same could be said about staff members on Capitol Hill.
    The comment is that, well, if there is an extension of the 2-
    year cooling off period, many very fine staff members will
    leave. I don't think that is a problem. People are in this for
    public service, they know full well that they are not going to
    cash in and leave and work exactly on the issues that they were
    working on on the Hill or in the executive branch. I don't see
    this as a problem. I think you have balance in the bill.
        Mr. Holman. May I add a quick comment to this? I understand
    it is a balancing act. No one who's pushing for a stronger
    revolving door restriction is seeking to make anyone
    unemployable, or to impede employment.
        But imagine what is being asked here. The balancing act is
    in regards to the conflict of interest. A procurement officer,
    for instance, certainly can go to work for the certain industry
    in which they may have had regulation over. The conflict of
    interest is when it involves a specific company in which they
    had oversight of a contract.
        What is being asked by saying, this is an inconvenience, is
    saying that we should get rid of the policy that prohibits a
    procurement officer from getting a job with the same company in
    which they are negotiating a contract or awarding a contract.
    That conflict of interest is just too grave, and we have seen
    it abused too often to pretend it doesn't exist.
        Chairman Waxman. Thank you very much.
        Mr. Tierney.
        Mr. Tierney. Mr. Chairman, I have no questions of the
    panel. Thank you.
        Chairman Waxman. Then let's go to Mr. Yarmuth.
        Mr. Yarmuth. Thank you, Mr. Chairman. I appreciate the
    remarks of all the panel.
        I have a question about the reporting requirements. I will
    play devil's advocate for a second. Coming from a media
    background, I was a journalist for some period of time before
    entering Congress. I strongly support all transparency
    initiatives.
        Is there a risk here by requiring things, reporting of
    contacts when anybody trying to influence Government policy,
    that we are, we would be essentially creating suspicion of
    something that is a perfectly legitimate activity? When the
    Congress dealt with problems involving lobbying of Congress, we
    talked about gifts and trips and improper inducements. We
    didn't talk about contacts, because we are contacted every day.
    That is part of our job, to talk to people trying to influence
    public policy.
        So if a public citizen came to lobby me, for instance, and
    I report that, it is perfectly legitimate, that is what
    Government is about and lobbying is about, and we are not ready
    to outlaw lobbying and wouldn't presume to do so. But is there
    a risk that we are creating some kind of negative connotation
    to the actual act of lobbying by enforcing reporting
    requirements of all contacts?
        Mr. Thurber. Under first amendment rights, you had the
    right to be a reporter and citizens have the right to organize
    and petition Government for grievances. I think that it is a
    legitimate activity in this democracy and most citizens know
    that when they get involved with groups. I think that more
    transparency but also enforcement of existing law just helps
    improve trust in Government. And it doesn't create suspicion.
        If there is suspicion about a particular activity, then it
    should be brought out and the media and others should look at
    it and make a judgment. I don't see this as a problem of
    creating more suspicion in the administration of programs.
        Mr. Wertheimer. I would say sure, there is a risk. But the
    risk is outweighed by the value of transparency. And the
    transparency problem is a particular problem for the executive
    branch. I am not just talking about this particular executive
    branch. We do live in a time where part of the basic concern
    among citizens is whether people with influence have too much
    influence and it comes at their expense. I think the process
    can and will adjust to understanding that people meet with
    executive branch officials. When question arise out of those
    meetings, either they will be tied to legitimate concerns or
    not. And in the end, I just think we have come to a point where
    we need this kind of transparency for the interest of the
    public and the executive branch.
        So while I don't discount the question you are raising, I
    do think it is outweighed by the gains that will occur.
        Mr. Holman. First of all, I couldn't imagine it being a
    black mark on anyone's record to be lobbied by Public Citizen.
    But if it is, the suspicion already exists. And the suspicion
    is because there are no public records of this. So most
    Americans believe there is this black hole going on here on
    Capitol Hill in which lobbyists are manipulating lawmakers and
    lawmakers are trying to manipulate lobbyists, and it is
    something going on here in which most Americans will respond to
    public surveys saying, the Federal Government is being run by
    lobbyists and special interests and it does not take into
    consideration my interests. So that suspension is already here,
    it is already widespread.
        If we are going to try to address that type of suspicion,
    disclosure is the best very first step to take.
        Mr. Yarmuth. Well, the followup, and I think I know the
    answer, but I would like to get it on the record anyway, is why
    would then we not impose the same requirement on ourselves?
        Mr. Wertheimer. I think it is something you should
    consider.
        Mr. Yarmuth. Be careful what you ask for, right?
        Mr. Wertheimer. Yes. And it is an issue faced with respect
    to the lobbying disclosure bill that will come forward probably
    next month in the House.
        Now, there is an apples and oranges here. You do have to
    analyze the situations in terms of their own facts. As I think
    you may have mentioned, you are dealing with constituents all
    the time. The process in the House is not the same as the
    executive branch. You have to take recorded votes. You are out
    with a lot of policy positions. Whatever concerns people may
    have, the process in Congress is a far more open process than
    the executive branch decisionmaking process.
        On the other hand, there is a question of whether the
    contacts between people who are being paid to influence
    Congress should be disclosed, disclosed by the lobbyists, the
    lobbying organizations. There are various ways of doing that,
    and there are ways of balancing that. It might be, for example,
    that if a lobbying organization or a lobbyist contacts your
    office in a corridor, that ought to be listed, that every
    single report contact doesn't necessarily have to be listed.
        You do have to analyze that problem, in my view, in terms
    of the Congress, and not just assume it is the same. But it is
    something that ought to be seriously considered here.
        Mr. Thurber. I agree with Fred. I was asked that question
    before the Senate Rules Committee and the House Rules
    Committee. I think that it would not be too onerous for you to,
    as members, record that with respect to paid lobbyists that fit
    under the Lobby Registration Act. Not all contacts with all
    kinds of people.
        By the way, in terms of transparency, you might look at the
    transparency in this act with respect to lobbying the executive
    branch in the same way that Sarbanes-Oxley brings transparency
    and credibility to the accounting with respect to major
    corporations. I have worked with the Committee on Economic
    Development as a business-oriented think tank and they feel
    that ``Sarbanes-Oxley should be applied'' in some ways to the
    lobbying activity. They want even more transparency and
    recording. That is from a bunch of CEOs from major
    corporations.
        Mr. Yarmuth. Thank you.
        Mr. Holman. Just very briefly, if I could----
        Chairman Waxman. Every question does not have to be
    answered by every witness, and we have other Members waiting.
    So if the gentleman will wait and see, maybe you can respond to
    another question.
        Mr. Platts, do you want to ask anything of this panel?
        Mr. Platts. No questions, Mr. Chairman. I just appreciate
    all three of our witnesses for their efforts, not just here
    today in supporting the efforts of a more open and accountable
    Government, but in their organizations over the course of many
    years. We appreciate your good work.
        Chairman Waxman. Thank you, Mr. Platts.
        Ms. Watson.
        Ms. Watson. No questions, thank you, Mr. Chairman.
        Chairman Waxman. Mr. Braley.
        Mr. Braley. Thank you, Mr. Chairman, Ranking Member Davis.
        I believe, Dr. Holman, you were the one who raised the
    issue of recusals in your testimony, is that correct?
        Mr. Holman. Yes.
        Mr. Braley. And as I understand it, the existing practice
    is that the agency head or official in question has a self-
    determination on an appropriate circumstance under which a
    recusal might be necessary?
        Mr. Holman. That is correct.
        Mr. Braley. Is there no means available for any outside
    interested party to raise the issue of recusal based upon some
    of the same concerns that we have been talking about here today
    and is that addressed at all under the new legislation that is
    being considered?
        Mr. Holman. As the procedure currently exists, it is the
    public official's responsibility at first to make any
    determination whether or not a conflict of interest does arise.
    There is no mechanism in which there are other avenues for
    outside persons to try to claim that recusal should have been
    granted, other than of course trying to go through the press
    and creating that kind of problem. There is no internal
    mechanism.
        This legislation goes a step further by requiring recusal
    where such a conflict of interest would exist. It does not in
    itself establish a procedure in which there would be
    alternative means of determining that. But merely by the fact
    of requiring a recusal, the ethics officers are going to be
    compelled to develop procedures in which it isn't left up to
    the public official to determine whether a conflict of interest
    exists.
        So at that point, I would suspect the regulations, it would
    be developed.
        Mr. Braley. Has Public Citizen, or any other group, to your
    knowledge, come up with recommended language on how such a
    procedure could effectively be implemented when such a
    procedure has existed for many, many years in the judicial
    system to raise issues of recusal regarding a particular judge
    that gives parties that opportunity to do so in an environment
    that is orderly and allows their concerns to be raised?
        Mr. Holman. The general procedure that Public Citizen has
    argued for dealing with the recusal problem is to ensure that
    there is oversight by a single entity or a single agency. It
    has to be a determination and a promulgation of rules and
    regulations set up by an oversight group including over judges.
    But in the case of the executive branch, we would leave it up
    to the determination of the Office of Government Ethics to
    formulate how that sort of recusal process would operate.
        The important thing is that it is the responsibility of a
    single office as opposed to what currently exists where you
    have literally 6,000 different ethics officers for all the
    different agencies and departments left with the responsibility
    to determine what is going on. That is where we have basically
    chaos when it comes to ethics and ethic oversight. A single
    agency would help address that problem.
        Mr. Braley. I am going to address this to the entire panel.
    Under the section dealing with stopping the revolving door and
    the prohibition on negotiation of future employment, one of the
    exceptions provides for waivers under exceptional
    circumstances. I am just trying to get my head around this
    concept and ask if you can describe for me potential areas
    where exceptional circumstances might exist to justify such a
    waiver?
        Mr. Thurber. I was troubled with that. I cannot define
    that. I would do away with all waivers. Maybe my colleagues
    could help. But I would just do away with all of them in terms
    of negotiation for future employment.
        Mr. Wertheimer. I don't think any of us know the genesis of
    that provision. And so it is hard to comment on why it is
    needed or what specifics it is intended to address. Someone had
    something in mind in the drafting of that provision. But it
    does raise the question you raised, what are exceptional
    circumstances.
        Mr. Holman. There is always the conceivable situation in
    which work has been done by a public official and has to be
    completed in the next week or 2 weeks or something. So the
    situation is so immediate that someone else could not possibly
    step into the shoes. I would imagine that was what was in mind
    by the exceptional circumstances, although I would really,
    really strongly urge that any such exceptional circumstances be
    exceedingly rare in granting any kind of waiver.
        Mr. Braley. Thank you. I yield back the balance of my time.
        Chairman Waxman. Thank you very much, Mr. Braley.
        Mr. Shays, do you have any questions of this group?
        Mr. Shays. Mr. Chairman, because I was not here, do you
    have any other members who can ask questions? Well, then, I
    would just make the statement, I am happy you are doing this
    issue, and apologize to our witnesses. I happen to believe one
    of the best protections of abuse in our Government is to have a
    strong whistleblower statute. It was one of the things that my
    subcommittee spent a lot of time on, now Mr. Tierney's
    committee, spent a lot of time dealing with, is how we protect
    people who are aware of things that are not happening properly
    and put an end to it.
        Chairman Waxman. Thank you very much.
        I want to thank the three of you for your testimony. We
    will certainly look at the recommendations you offered us to
    improve the legislation. Thank you very much.
        We have four witnesses on our second panel. Dr. William
    Weaver is a distinguished professor at the University of Texas,
    and is here representing the National Security Whistle Blowers
    Coalition. NSWBC was created to advocate for an enhanced
    whistleblower protection for national security, Federal and
    contractor employees. Nick Schwellenbach is an investigator on
    the Project on Government Oversight [POGO]. It is known for its
    expertise in Government oversight and accountability. Tom
    Devine is the legal director of the Government Accountability
    Project. GAP, perhaps longer than any other organization, has
    been advocating for the restoration of Federal employee
    whistleblower protections. Mark Zaid is an attorney with the
    law firm of Krieger and Zaid, and has represented numerous
    whistleblowers. He is a noted expert on the State Secret
    Privilege issue.
        We are pleased to welcome each of you to our hearing today.
    Your prepared statements are going to be made part of the
    record in its entirety. What we would like to ask you to do is
    to summarize in around 5 minutes. But it is our practice to
    swear in all witnesses that appear before this committee. So if
    you would please stand and raise your right hands, I would like
    to administer the oath.
        [Witnesses sworn.]
        Chairman Waxman. The record will indicate that each of the
    witnesses answered in the affirmative. Dr. Weaver, why don't we
    start with you?

     STATEMENTS OF WILLIAM G. WEAVER, PH.D., ASSOCIATE PROFESSOR,
          UNIVERSITY OF TEXAS AT EL PASO; NICK SCHWELLENBACH,
     INVESTIGATOR, PROJECT ON GOVERNMENT OVERSIGHT; THOMAS DEVINE,
    LEGAL DIRECTOR, GOVERNMENT ACCOUNTABILITY PROJECT; AND MARK S.
                 ZAID, ATTORNEY, KRIEGER AND ZAID, PLLC

                     STATEMENT OF WILLIAM G. WEAVER

        Mr. Weaver. Thank you, sir. I will be brief.
        National security for the last 60 years, at least as it has
    been employed by the President of the United States, has been
    ever-expanding and less subject to oversight and many other
    areas, the executive branch. It has crystallized into a
    prerogative, really, rather even more that a constitutional
    right or privilege.
        And it has gone from statute, the first statute or the
    first Executive order that concerned classification of material
    under Franklin Roosevelt in 1940 was based solely on statutory
    authorization and then it has gone in the 1960's and 1970's
    from statutory authorization to constitutional right under
    Article 2. And then now it is being forwarded, the power of the
    President, to segment off information from public disclosure or
    disclosure to Congress based on something that is even beyond a
    constitutional privilege, which is a right under a theory of
    the unitary executive, where the President of the United States
    is first in line ahead of Congress and the Judiciary in the
    protection of the United States and the public's business.
        Congress has made no such progress. The engine of national
    security has converted the Presidency, the institution of the
    Presidency, into a 21st century institution. But Congress, at
    least when it concerns national security, has been a 20th
    century institution attempting to check the power of a 21st
    century Presidency.
        Secrecy is now a central axis of the executive branch. It
    is spread to cover many areas that historically have not been
    subject to secrecy. There are agencies now such as Health and
    Human Services, Environmental Protection Agency, Department of
    Agriculture, which have original classification authority which
    did not have original classification authority until this
    administration.
        And we have seen the use of national security exemption
    under FOIA in ways that it was probably never intended to be
    used. Most recently I filed a lawsuit against the DEA under
    FOIA, and for the first time, as far as I can tell, the DEA is
    refusing to give part of the information requested on the basis
    of exemption one, which is the national security exemption
    under the Freedom of Information Act. In that case, there is no
    national security matters involved. It was simply a case of
    criminal nature, where the ICE, Immigrations and Customs
    Enforcement, was running an informant who, with ICE's
    foreknowledge, committed up to 12 homicides in Juarez, Mexico.
        So national security is being more clearly used to cover up
    embarrassment rather than protect the Nation from attack or
    from divulging information that would help our enemies.
        You guys play for the Article One team. And for recent
    years, Congress has been batting for the Article Two team to
    some degree. This legislation that has been introduced by the
    chairman and by other members of the committee is an excellent
    step in the right direction. There are a number of very good
    aspects to the legislation, the Whistleblower Protection
    Enhancement Act Of 2007, first as the extension of protections
    to intelligence and counter-intelligence employees, which has
    not happened before. Historically, those agencies have been
    exempted from giving protection.
        Second, the statute prohibits denying, suspending or
    revoking a security clearance in reprisal for whistleblowing.
    This is a direct and welcome challenge to one of the main tools
    intelligence and counter-intelligence agencies employ against
    whistleblowers. People are held hostage by their jobs, their
    security clearances, and have to choose between their careers
    and their conscience.
        Likewise, the time requirements that are in the statute are
    very good, because they help move along the process which
    historically has been plagued by delay. And finally, the
    extension of protection to employees in non-covered agencies
    who are seeking to disclose wrongdoing that requires divulgence
    of classified or sensitive material is also an excellent
    provision of the statute. All in all, it's a very good statute,
    which the NSWBC happily supports.
        Unfortunately, there are several things in the statute that
    are problematic. First is that what is an authorized Member of
    Congress to receive information that is classified. The term
    authorized will be interpreted by the executive agencies to
    mean those Members of Congress who have been cleared to receive
    the information from the whistleblower.
        In the past, there have been problems that have arisen
    because the executive branch believes that it has plenary
    control over classified information and therefore it is within
    the executive branch's purview to determine who is authorized.
    Recently, in a NSA whistleblower case, the NSA whistleblower
    was told that he could not divulge information even to the
    House Permanent Select Committee on Intelligence or the SSCI,
    because they had not been cleared. They were not authorized to
    receive that information. So authorized Member of Congress
    creates one difficulty, perhaps.
        The second matter is that all circuits review should be in
    the legislation. It shouldn't be solely confined to the Federal
    circuit, I believe, because the Federal circuit has been
    unfriendly, to say the least, to whistleblowers.
        Finally, the State Secrets Privilege, the way the bill
    attempts to handle it, it allows for resolution in favor of the
    plaintiff of any particular issue or element that is challenged
    in a lawsuit by the State Secrets Privilege. But it doesn't
    seem to deal with cases where the Government says that the
    whole lawsuit should be thrown out, because the State Secrets
    Privilege requires dismissal, because the very nature of the
    suit is secret. So we have suggested in our testimony language
    from the National Whistleblowers Center and language from us,
    the National Security Whistle Blower Coalition, to fix that
    problem.
        [The prepared statement of Mr. Weaver follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Waxman. Thank you very much, Dr. Weaver.
        Mr. Schwellenbach.

                    STATEMENT OF NICK SCHWELLENBACH

        Mr. Schwellenbach. Chairman Waxman, Ranking Member Davis
    and other members of the committee, thank you for inviting me
    to testify today in support of the Whistleblower Protection
    Enhancement Act of 2007. I am Nick Schwellenbach of the Project
    on Government Oversight, an independent non-profit that
    investigates and exposes corruption and other misconduct in
    order to achieve a more accountable Federal Government.
        POGO is also part of the Make it Safe Coalition, a
    coalition of groups that work with whistleblowers and seek to
    improve their protection from retaliation. I am also on the
    steering committee of openthegovernment.org, a bipartisan
    coalition of groups that seek to reduce excessive Government
    secrecy. I would like to thank Waxman, Platts and Shays for
    their leadership on this issue.
        I would also like to congratulate your committee's efforts
    to put teeth into the Whistleblower Protection Act. These
    efforts lay the groundwork for effective Government
    accountability. This is an important hearing and whistleblower
    protections need to be greatly improved if the executive
    branch, regardless of who is in the White House, is to be held
    accountable by the legislative, as our Nation's founders
    intended.
        While whistleblower protections are commonly viewed as
    rights for Federal employees, they are more than that.
    Whistleblower protections also protect Congress's rights, the
    right to know the actions of the Executive, to oversee
    implementation of law, and to fulfill its constitutional
    obligations as a separate and co-equal branch of Government.
        The free flow of information from Government employees to
    Congress enables the Congress to fulfill its duty of overseeing
    the Executive, as I stated before. But the Executive, as my
    colleague Bill Weaver has just mentioned, has been increasingly
    assertive in telling Congress that it does not have the right
    to receive information, especially from disclosures made
    outside of official channels.
        In the realm of national security, the Executive has long
    argued that it has exclusive control over classified
    information and that its employees may not provide this
    information to Congress without approval. But the Executive has
    gone even further by advancing the constitutionally
    questionable unitary executive doctrine in a dangerously
    expansive and overreaching interpretation of executive
    privilege.
        In 2003, a highly publicized and troubling event concerned
    the silencing of Centers for Medicare and Medicaid Services'
    chief actuary, Richard S. Foster, on the cost of the Medicare
    prescription drug plan. Foster was threatened with termination
    for speaking to Congress. Both the CRS and GAO issued legal
    opinions finding that the effort to silence Foster was an
    unlawful violation of the Lloyd LaFollette Act of 1912. In
    order to assert its unassailable right to oversee the
    Government, Congress has since 1988 approved so-called anti-gag
    provisions and annual appropriations bills that prohibit
    managers from silencing whistleblowers. Recently, many air
    marshals at the Federal Air Marshal Service have told us about
    a troubling trend of management retaliating against them for
    their communications with Congress. One air marshal, P. Jeffrey
    Black, made disclosures which sparked a major House Judiciary
    Committee investigation last year.
        And another case, which we should all being paying
    attention to, occurred over 10 years ago. Richard Barlow, a
    Defense Department analyst, who was unraveling the AQConn
    network in the late 1980's, had a security clearance revoked
    for simply suggesting that Congress be informed that Pakistan
    was peddling nuclear wares across the globe. He was then fired.
    He did not go to Congress initially, he just suggested the idea
    of doing so, because there was a law which made arms sales to
    nations that were engaged in nuclear proliferation illegal.
        We are pleased that the legislation before you makes these
    agency policies which silence employee communications with
    Congress illegal, but more should be done to ensure
    enforcement, which they have never been enforced, these anti-
    gag statutes. Passed in 1989, the Whistleblower Protection Act
    was intended to provide a mechanism for civil service employees
    to challenge retaliation and disclose waste, fraud and abuse.
    But despite the rights the act provides on paper, it has
    suffered from a series of crippling judicial rulings that are
    inconsistent with congressional intent and the clear language
    of the act.
        The Federal Circuit Court of Appeals currently is the only
    court that can hear an appeal from the Merit Systems Protection
    Board. And it is clear from the Federal Circuit's hostile
    rulings and the 2 to 177 track record against whistleblowers
    that it is time to end its monopoly on jurisdiction.
        More significantly, the act has failed because the agencies
    tasked with implementing the promise of whistleblower
    protections, the Office of Special Counsel and the MSPB, have
    been utter failures since their founding. We defer to our
    colleague, Tom Devine, from GAP, to speak more in-depth on this
    issue.
        This bill will undo the crippling judicial decisions, but
    it keeps jurisdiction in the Federal circuit's hands. We also
    urge the committee to provide judicial review by all circuits,
    thus ending the Federal circuit court's decades-long monopoly
    and ensuring that vigorous judicial opinions are rendered from
    U.S. district courts nationwide.
        We are also pleased that your bill extends protections to
    TSA screeners, FBI and intelligence agency employees. These are
    true post-9/11 reforms, long overdue. Also overdue are
    whistleblower protections for Government contractor employees.
    Spending on Government contractors has doubled in recent years
    from $219 billion in 2000 to roughly $382 billion in 2005. A
    recent New York Times article noted ``Contractors Sit Next to
    Federal Contractors at Nearly Every Agency.'' Far more people
    work under contracts than are directly employed by the
    Government.
        Also, we are pleased that the legislation provides for a
    GAO study on security clearance revocations, which are
    currently not covered by the Whistleblower Protection Act. With
    that, I would like to finish my testimony. Thanks.
        [The prepared statement of Mr. Schwellenbach follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Waxman. Thanks for your testimony.
        Mr. Devine.

                       STATEMENT OF THOMAS DEVINE

        Mr. Devine. Thank you for inviting this testimony, Mr.
    Chairman.
        This committee is close to approving a global gold standard
    for public employee freedom of expression and a breakthrough
    for Government accountability. Quick passage also will be a
    signal that new congressional leadership is serious about two
    basic commitments to taxpayers: oversight that ends a pattern
    of secret Government and structural reform to help challenge a
    culture of corruption.
        Over the last 30 years, the Government Accountability
    Project has formally or informally helped over 4,000
    whistleblowers to commit the truth and survive professionally
    while making a difference. This testimony shares and is
    illustrated by painful lessons we have learned from their
    experience. We couldn't avoid getting practical insights into
    which whistleblower systems are genuine reforms that work in
    practice and which are illusory.
        Along with POGO, GAP is a founding member of the Make it
    Safe Coalition, a non-partisan network of organizations that
    specialize in homeland security, medical care, natural
    disasters, scientific freedom, consumer hazards, corruption and
    Government contracting and procurement. At the beginning of
    this month, we held a day-long summit on whistleblower rates,
    and this testimony seeks to reflect the across the board
    consensus that we achieved there.
        There can be no credible debate about how much this law
    matters. Whistleblowers risk their professional survival to
    challenge abuses of power that betray the public trust. It is
    freedom of speech when it matters, unlike the freedom to yell
    at a referee in a sports stadium or engage in political satire
    in late night television. Whistleblowers risk everything to
    defend the public against abuses of power. They represent the
    human factor that is the Achilles heel of bureaucratic
    corruption. They are the lifeblood for any credible anti-
    corruption campaign which will degenerate into empty, lifeless
    magnets for cynicism without safe channels to protect those who
    bear witness. That is the prerequisite for a meaningful
    congressional oversight, as demonstrated by this committee's
    January hearings on climate change censorship.
        Creating safe channels for whistleblowers will determine
    whether Congress learns about only the tips or uncovers the
    icebergs in nearly ever major investigation of the next 2
    years. Let me give you just a few examples on this.
        That FDA scientist, Dr. David Graham, successfully exposed
    the dangers from painkillers, like Vioxx, which caused over
    50,000 unnecessary fatal heart attacks in our country. The drug
    was removed. Climate change whistleblowers like Rick Piltz,
    exposed how oil industry lobbyists were hired by the White
    House to rewrite the research conclusions of America's top
    scientists. Gary Aguirre exposed the Securities and Exchange
    cover-ups of vulnerability to massive corruption in hedge funds
    that could threaten a new wave of Enron type scandals. Frank
    Terreri from the Air Marshal Service exposed and successfully
    challenged keystone bureaucratic practices that repeatedly blew
    the cover of the air marshals we depend on to stop the next
    skyjacking. Air Marshal Robert MacLean's public protest stopped
    the Transportation Security Administration from pulling all
    marshals from sensitive flights when they had blown their money
    on pork barrel projects, and so they couldn't afford it any
    more.
        Mr. Richard Conrad has exposed uncontrolled maintenance and
    repairs on F18s out at the North Island Naval Aviation Depot
    near San Diego. That could explain why those planes keep
    crashing. Whistleblowers don't give up, either. Former FAA
    manager Gabe Bruno is still challenging that agency's failure
    to honestly test more than 1,000 mechanics for commercial and
    civilian aircraft who had received fraudulent certifications.
        There also shouldn't be any questions this bill is long
    overdue. Our easiest consensus is the Whistleblower Protection
    Act has become a disastrous trap which creates far more
    reprisal victims than it helps. And it has become would-be
    whistleblowers' best reason to look the other way or become
    silent observers. Your legislation deals with both of the
    causes for that disappointing result after a three-time
    unanimous mandate from Congress for the opposite. One is
    structural loopholes in the law, and the other is a system of
    due process, which doesn't have any enforcement teeth. You
    directly address both of those problems.
        Mr. Chairman, I would be glad to go into a number of
    examples of why the current system has failed, and particularly
    the Federal Circuit Court of Appeals which has been the
    Achilles heel of the law for all three passages. In fact, there
    shouldn't be any delusion, unless we restore normal appellate
    review. Three will not be the charm for the Whistleblower
    Protection Act, and this committee will be reconvening in about
    5 years.
        The key now however is to pass the law and to have quick,
    expeditious results. Until that happens, whistleblowers are
    defenseless. Every month that we delay means more reprisal
    victims who can't defend themselves when they defend the
    public.
        Most anti-corruption measures are very costly in terms of
    our rights and in terms of money. But whistleblower protection
    fights corruption by strengthening our freedoms. And it doesn't
    cost anything to listen.
        [The prepared statement of Mr. Devine follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Waxman. Thank you very much, Mr. Devine.
        Mr. Zaid.

                         STATEMENT OF MARK ZAID

        Mr. Zaid. Good morning, Mr. Chairman, members of this
    committee. It is with pleasure that I testify once again before
    this distinguished committee.
        I have been requested to specifically focus on the State
    Secrets Privilege [SSP] that I will call it, I applaud this
    committee for taking on this topic. You are, to my knowledge,
    in fact, the first congressional committee in decades and
    perhaps ever to ever directly focus on this privilege. The
    privilege is routinely exploited by the executive branch and
    understandably so. The judicial branch, despite flowery
    rhetoric, has abdicated its responsibility for oversight and
    the legislative branch has been historically silent.
        Fortunately, the latter situation, as evidenced by this
    hearing, is no longer. Let me state at the outset that I
    support the passage of the current language in this bill about
    the privilege, although admittedly, any favorable substantive
    impact it might have is likely too difficult to measure. But
    the importance of the legislation is that it very clearly opens
    the door for the first time in history for true congressional
    involvement in oversight. In particular, to allow for the
    application of the most important type of test when it comes to
    executive branch claims of classification. That is one of
    smell.
        I know all too well the implications of litigating cases
    involving national security disputes and classified
    information. Oftentimes, my clients' very identity or
    relationship to the U.S. Government is a highly classified
    secret. I am frequently in the trenches fighting with Federal
    agencies concerning access to classified information. Over the
    years, I have handled or have been consulted on a number of SSP
    cases. I am generally aware in those cases of much of the
    information that is classified. Sometimes I know the exact
    information that is classified, but other times, I know little
    to none of what is involved.
        I do appreciate, and I think this is important to note, the
    nature of properly classified information. There are many
    secrets, as many of you know, that absolutely need to be
    protected. The disclosure of some of the information that I
    have been privy to over the years could easily cause serious
    damage to the national security interests of the United States
    and could lead to the loss of life, including that of my own
    clients. And I take that prospect very seriously.
        The problem is that excessive over-classification is
    rampant and at times purposefully abused. Secrecy was designed
    to serve as a shield to protect the disclosure of certain
    harmful or sensitive information. In the context of civil
    litigation, it is quite the opposite. There it is, the
    equivalent of a two-handed sword that in one fell swing, at the
    outset of a battle, decapitates the enemy. The sword is the
    privilege and the enemy is fair judicial due process.
        Since the privilege was created in 1953 by the Supreme
    Court in United States v. Reynolds, courts routinely remind the
    executive branch that its assertion is not to be lightly
    invoked. And as routinely as that reminder occurs, the
    executive branch routinely ignores it. Moreover, rarely does a
    Federal judge do anything other than accept carte blanche
    whatever an agency head states in a classified declaration
    submitted for review in camera and ex parte. There is no role
    based on current law for the plaintiff's attorney even when we
    do have security clearances to actually review that declaration
    or comment on it. Essentially, it is the defendant in the role
    of a batter telling the pitcher to throw the pitch that he
    wants to guarantee that he could hit a home run.
        In the majority of the privilege cases that I am familiar
    with, the court never even gets to the point where the specific
    classified documents are in question. It is only the one-sided,
    self-serving classified declaration that is reviewed and serves
    as the basis for the court's decision. Indeed, there is no case
    that I am personally aware of where the judge even verbally
    posed substantive questions or requested clarifying information
    in writing based on what was contained int eh classified
    declaration.
        Yet we know from the Reynolds case that a Federal agency
    will mislead and arguably lie to a court in order to protect
    itself. The mis-use of the classification system, especially in
    the context of judicial proceedings, is destructive to the
    fundamental tenets of our Constitution. But the courts
    repeatedly hold that it is generally not within their purview
    to intervene on national security matters.
        Frankly, I rejected the notion that Federal judges neither
    have the authority nor can exercise the expertise regarding
    classification decisions. I would submit that Congress agrees
    with me, due to its role in creating such statutes as the
    Freedom of Information Act and the Classified Information
    Procedures Act, both of which allow for judges to explicitly
    exercise authority in the national security realm.
        Regrettably, in 2005, 2006, the Supreme Court had an
    opportunity to ensure that this hearing never occurred. It had
    two cases pending for certiorari, it had two others pending at
    the circuit courts of appeals and at least one other at the
    district court. And in briefs that I filed that made it very
    well known to the court that this was happening, that the first
    time in 50 years they had an opportunity to clarify the
    ambiguity, and in each of the cases, they declined without
    comment to even rule.
        Instead of making that decision, they didn't follow their
    own admonition in Reynolds that judicial control over the
    evidence in a case cannot be abdicated to the caprice of
    executive officers. To put the consequences of the privilege in
    some sort of understandable perspective, I find it distressing
    that foreign criminal terrorist defendants receive more rights
    to ensure that they and their counsel have access to classified
    information than do U.S. nationals who place their lives on the
    line to fight against foreign criminal terrorists. The
    absurdity and irony of this irreconcilable discrepancy must not
    go unnoticed any longer.
        In my written statement, I go through some history that I
    won't repeat here. I will very briefly just point out some
    legislative suggestions for reform and then I can expand on any
    in the Q&A.
        The only way that this privilege is ever going to be
    modified is legislatively. It is not going to happen
    judicially. You have some options. You can create a special
    Article Three court or an Article One administrative entity or
    modify existing entities, such as the Pfizer court or the MSPB.
    You could adopt statutory language that would impose clear
    requirements on judges to take certain steps before they
    dismiss a case in its entirety based on the privilege. You
    could ensure proper education and training of Federal judges,
    so that they understand what is the nature of classification
    and how to protect classified information.
        Certainly in the interim, an easy thing to do is to task
    CRS to draft proposed statutory language to address concerns of
    the executive branch and consider expanding the jurisdiction of
    the entities I mentioned, or task the GAO to conduct a thorough
    examination of the historical invocation of the privilege and
    objectively analyze some of the prior examples of classified
    declarations to see if what was submitted back when meets the
    test back at that time or at least now.
        All these suggestions are going to require some significant
    work. I am happy to work with the committee in drafting that,
    especially since some of these suggestions will require the
    involvement of other committees where it actually might be
    their primary jurisdiction. I appreciate the opportunity and
    thank you.
        [The prepared statement of Mr. Zaid follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Waxman. Thank you very much. I want to thank each
    of the witnesses for your presentation.
        Usually when we think about an employer retaliating against
    an employee whistleblower, we usually think of the individual
    being fired or demoted. But the suspension or revocation of an
    employee's security clearance can have just as chilling an
    effect. Last year at the National Security Subcommittee hearing
    on this issue we heard from Government officials who reported
    abuses at our Nation's most secretive counter-terrorism
    national security and law enforcement programs and who all
    claimed to have been retaliated against for trying to correct
    these abuses. Silencing national security whistleblowers who
    are attempting to report waste, fraud and abuse places our
    Nation in great danger.
        This bill before us would include revocation of security
    clearance as a prohibited retaliation under the act. To
    whomever wishes to respond, do you think that is a significant
    problem and you think this provision will help better protect
    national security whistleblowers? Mr. Zaid?
        Mr. Zaid. Yes, sir. As part of my practice, I frequently
    deal with clearance matters. I think I testified at that
    hearing, in fact, as I recall. One of my clients, Anthony
    Schaffer, of the Defense Intelligence Agency, had had his
    clearance stripped, revoked in the aftermath of the Evil Danger
    allegations.
        The problem with dealing with whistleblower retaliation and
    the clearance issues are trying to draw a clear line of path
    between the two. It is very difficult in experience to be able
    to prove that the whistleblowing activities had something to do
    with the clearance, and even in the cases that it does, very
    often the clearance matters that are underlying the subject of
    the revocation or denial have some arguable standing basis on
    their own. Anything can happen. With Tony Schaffer, part of the
    allegation against him was that he had stolen pens from the
    embassy when he was 14 years old, 30 years earlier. And that
    was being used as a pattern and practice allegation against
    him, that he had mis-used his cell phone to the tune of $67 at
    part of his work responsibilities.
        So the key in being able to I think deal with the clearance
    aspect would be, especially in whistleblowers, would be to
    create specific jurisdiction, whether at the MSPB or even
    better, at a Federal court level, to be able to review a
    substantive determination of a clearance decision. Right now,
    the way it stands, no Federal court will go anywhere near
    security clearance unless it is a constitutional matter.
        Chairman Waxman. What do you think about the provisions in
    the bill?
        Mr. Zaid. I think the provisions in the bill are great for
    a start.
        Chairman Waxman. But you would expand on it?
        Mr. Zaid. I would expand, I would likely expand----
        Chairman Waxman. Let me ask you to give us your thoughts
    further on the expansion. I just want to quickly ask a few
    questions and you might have noticed the bells, so we are going
    to have to break. So maybe even if we can complete the
    questioning before the last opportunity to vote, that would be
    helpful.
        Just very quickly, do you think it is appropriate to have
    scientists and medical professionals protected when they
    disclose abuses of authority? Do you all think that that is a
    helpful provision? Dr. Weaver.
        Mr. Weaver. Of course. People should not be penalized for
    telling the truth, especially when it is scientifically and
    objectively determined.
        Chairman Waxman. On the appellate review issue, what we did
    is, despite there is a rationale for all appeals going to the
    Federal circuit, in order to have a legal landscape that is
    clear for all employees and employers, I would like to know how
    you respond to those concerns. Do you think that allowing
    whistleblower cases to go through the normal appeals process,
    rather than centralizing cases in the Federal circuit court of
    appeals will help maintain the integrity of the whistleblower
    protections passed by Congress?
        Mr. Weaver. It works for all other statutes, essentially,
    right? I mean, you end up having the leavening effects of
    multiple circuits looking at the same legal problem, arriving
    at the truth, and then conflicts are hammered out. In the
    present system, there is, they have a lock on it, they
    essentially have it all to themselves, it should be all
    circuits review.
        Chairman Waxman. I appreciate that. Let me recognize Mr.
    Platts and see if we can get through this before the last
    opportunity before we have to vote.
        Mr. Platts. Thank you, Mr. Chairman. I just want to
    followup on that last point. The way we had the bill introduced
    is with the Federal circuit. But I will be looking to offer an
    amendment tomorrow for all circuit to open it up the same as
    other reviews. If we did not do that with all the other changes
    that we are trying to address in the bill, if we do not address
    and allow all circuit review, what do you think our likelihood
    of success, meaning giving true protections to Federal
    employees under this bill without that, given the track record
    of the Federal circuit? Mr. Devine.
        Mr. Devine. Congressman, I think until you do address that
    issue, we are going to be prisoners of the broken record
    syndrome. Congress has made very clear that it supports a
    certain boundary of free speech rights for public servants. The
    Federal circuit has made it adamantly clear that they disagree
    and will not accept those boundaries.
        Although stability in case law is a very worthy goal, and
    Professor Weaver is right, it hasn't been a serious obstacle
    for other whistleblower issues, there is an even bigger issue
    here. Who is going to write the law for ethical freedom of
    speech by Government employees?
        I will just give you a few examples. This is an absolute
    test of wills between Congress and one particular court. In
    1994, the committee report said, it is also not possible to
    further clarify clear statutory language. Protection for any
    whistleblowing disclosure evidencing a reasonable belief truly
    manes any. Since 1994, the court has created nearly a dozen
    all-encompassing loopholes so that any means almost never.
        I will give you another example. When Congress first passed
    this law in 1978, the committee report said that the purpose of
    it is so that Pentagon employees who disclose billions of
    dollars in costs overruns through doing their audits, GSA
    employees who find widespread fraud, nuclear engineers whose
    inspections find violations of safety requirements in nuclear
    plants, that they can do their jobs without retaliation.
        Well, in 1996, the Federal circuit said the Whistleblower
    Protection Act doesn't count for when you are carrying out your
    job duties. In----
        Chairman Waxman. Excuse me, Mr. Devine----
        Mr. Platts. Because we are short on time, am I safe in
    saying that all four of you agree that all circuit review is
    critically important to the reforms we are pushing for?
        Mr. Zaid. It may constitute legal malpractice for me to
    charge clients to take their whistleblower appeal up to the
    Federal circuit court of appeals.
        Mr. Platts. We are in agreement. And I appreciate, again,
    al of you, I appreciate your testimony here today. Very in-
    depth, which is very helpful. And your efforts leading up to
    this hearing, and as we go forth.
        Thank you, Mr. Chairman.
        Chairman Waxman. Thank you, Mr. Platts.
        Mr. Yarmuth and Mr. Braley, do you think you can split the
    next 5 minutes? Mr. Braley.
        Mr. Braley. I have to say that I am very, very pleased to
    be here. I have actually had the privilege of representing
    whistleblowers, and I have represented people who have been
    blacklisted. One of my concerns is that even though the
    whistleblower protection deals with what is going on at the
    time a decision is made affecting an employee's rights with an
    agency or Federal Government entity, one of the concerns I have
    is a lack of protection of what happens after they leave and
    their reputations are sullied and they have no protection
    against interference with other employment prospects. I know
    some of you have encountered that in your own lives.
        I am also very concerned about the lack of an adequate
    remedy and the form in which that remedy occurs. Because as I
    read the bill as it is currently drafted, it is limited to
    reasonable and foreseeable consequential damages which may or
    may not include interest that accrues for the lost time while
    those employees are out there in a state of limbo. It may or
    may not include the type of remedy that is recognized under
    Federal law for employees who have been discriminated against
    in the workplace, which is compensatory damages for the very
    real problem in whistleblower cases of the intense intimidation
    and emotional toll it takes upon them. And based upon the
    language that appears to me to send a mixed messages as to
    whether this is a legal or an equitable remedy and if so,
    whether it is covered by the seventh amendment of the United
    States bill of rights, which would guarantee the right to trial
    by jury, and I think raises a lot of the similar concerns you
    are talking about with the Federal circuit right of review.
        So I am saying this very rapidly but I would be interested
    in any of the comments that the panelists would have about the
    need to go further with this bill to provide a true remedy,
    even though I am very, very pleased that we are taking the
    significant steps that we are to improve the existing remedy.
        Mr. Devine. Mr. Braley, the bill would provide access to
    jury trials. It is modeled after the same language in the
    Sarbanes-Oxley law for corporate whistleblowers, which is
    provided that right. I think your points are very well taken,
    though, about what happens when you win. This would be the only
    remedial employment law, even this legislation, if passed, that
    doesn't provide compensatory damages as part of its make-whole
    remedy. I think that is something for the committee to consider
    very seriously.
        Mr. Weaver. In the area of national security, any hint of
    equitable remedies are going to be vigorously challenged by the
    executive branch. And especially concerning security
    clearances, the executive branch position will be there is no
    equitable power to restore people to their job function,
    essentially.
        Chairman Waxman. Thank you, Mr. Braley. Members want to ask
    further questions and have you respond in the record in
    writing. We would appreciate that.
        Mr. Shays, did you want to make any last minute comments?
        Mr. Shays. Just to thank you for participating in this
    hearing, and Mr. Chairman, for bringing this bill forward. It
    is nice to have a Member who has had personal experience.
        Chairman Waxman. All right. Thank you very much. That
    concludes our hearing, we stand adjourned.
        [Whereupon, at 11:45 a.m., the subcommittee was adjourned.]
        [Additional information submitted for the hearing record
    follows:]

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