[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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
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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:]
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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:]
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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:]
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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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