[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


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             COMMITTEE ON OVERSISGHT AND GOVERNMENT REFORM

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

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



















                            C O N T E N T S

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


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

                              ----------                              


                       TUESDAY, FEBRUARY 13, 2007

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

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

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

                 STATEMENT OF JAMES A. THURBER

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    
    Chairman Waxman. Thank you very much. We appreciate your 
testimony.
    Mr. Wertheimer, again, to you and all the witnesses who 
appear today, the prepared statement will be made a part of the 
record in its entirety. We would like to ask you to stick to 
around 5 minutes in summary.

                  STATEMENT OF FRED WERTHEIMER

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

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

                   STATEMENT OF CRAIG HOLMAN

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

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    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:]

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        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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