[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
WHITE HOUSE TRANSPARENCY, VISITOR LOGS, AND LOBBYISTS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
MAY 3, 2011
__________
Serial No. 112-42
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
?
COMMITTEE ON ENERGY AND COMMERCE
FRED UPTON, Michigan
Chairman
JOE BARTON, Texas HENRY A. WAXMAN, California
Chairman Emeritus Ranking Member
CLIFF STEARNS, Florida JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky Chairman Emeritus
JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania EDOLPHUS TOWNS, New York
MARY BONO MACK, California FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska MICHAEL F. DOYLE, Pennsylvania
MIKE ROGERS, Michigan ANNA G. ESHOO, California
SUE WILKINS MYRICK, North Carolina ELIOT L. ENGEL, New York
Vice Chair GENE GREEN, Texas
JOHN SULLIVAN, Oklahoma DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania LOIS CAPPS, California
MICHAEL C. BURGESS, Texas JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee CHARLES A. GONZALEZ, Texas
BRIAN P. BILBRAY, California JAY INSLEE, Washington
CHARLES F. BASS, New Hampshire TAMMY BALDWIN, Wisconsin
PHIL GINGREY, Georgia MIKE ROSS, Arkansas
STEVE SCALISE, Louisiana ANTHONY D. WEINER, New York
ROBERT E. LATTA, Ohio JIM MATHESON, Utah
CATHY McMORRIS RODGERS, Washington G.K. BUTTERFIELD, North Carolina
GREGG HARPER, Mississippi JOHN BARROW, Georgia
LEONARD LANCE, New Jersey DORIS O. MATSUI, California
BILL CASSIDY, Louisiana DONNA M. CHRISTENSEN, Virgin
BRETT GUTHRIE, Kentucky Islands
PETE OLSON, Texas
DAVID B. McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia
7_____
Subcommittee on Oversight and Investigations
CLIFF STEARNS, Florida
Chairman
LEE TERRY, Nebraska DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma Ranking Member
TIM MURPHY, Pennsylvania JANICE D. SCHAKOWSKY, Illinois
MICHAEL C. BURGESS, Texas MIKE ROSS, Arkansas
MARSHA BLACKBURN, Tennessee ANTHONY D. WEINER, New York
SUE WILKINS MYRICK, North Carolina EDWARD J. MARKEY, Massachusetts
BRIAN P. BILBRAY, California GENE GREEN, Texas
PHIL GINGREY, Georgia DONNA M. CHRISTENSEN, Virgin
STEVE SCALISE, Louisiana Islands
CORY GARDNER, Colorado JOHN D. DINGELL, Michigan
H. MORGAN GRIFFITH, Virginia HENRY A. WAXMAN, California (ex
JOE BARTON, Texas officio)
FRED UPTON, Michigan (ex officio)
(ii)
C O N T E N T S
----------
Page
Hon. Cliff Stearns, a Representative in Congress from the State
of Florida, opening statement.................................. 1
Prepared statement........................................... 4
Hon. Diane DeGette, a Representative in Congress from the State
of Colorado, opening statement................................. 6
Prepared statement........................................... 8
Hon. Michael C. Burgess, a Representative in Congress from the
State of Texas, opening statement.............................. 11
Hon. Marsha Blackburn, a Representative in Congress from the
State of Tennessee, opening statement.......................... 12
Hon. Phil Gingrey, a Representative in Congress from the State of
Georgia, opening statement..................................... 12
Hon. Henry A. Waxman, a Representative in Congress from the State
of California, opening statement............................... 13
Prepared statement........................................... 16
Witnesses
Tom Fitton, President, Judicial Watch............................ 18
Prepared statement........................................... 21
John Wonderlich, Policy Director, Sunlight Foundation............ 24
Prepared statement........................................... 26
Anne Weismann, Chief Counsel, Citizens for Responsibility and
Ethics in Washington........................................... 33
Prepared statement........................................... 35
Submitted Material
Subcommittee exhibit binder, submitted by Mr. Stearns............ 44
Letter, dated February 17, 2011, from Hon. Judy Biggert,
Chairman, Subcommittee on Insurance, Housing and Community
Opportunity, House Committee on Financial Services, to Michael
P. Stephens, Acting Inspector General, Office of Inspector
General, Department of Housing and Urban Development, submitted
by Ms. DeGette................................................. 224
Letter, dated March 3, 2011, from Michael P. Stephens, Acting
Inspector General, Office of Inspector General, Department of
Housing and Urban Development, to Hon. Judy Biggert, Chairman,
Subcommittee on Insurance, Housing and Community Opportunity,
House Committee on Financial Services, submitted by Ms. DeGette 229
Letter, dated March 22, 2011, from Peter A. Kovar, Assistant
Secretary for Congressional and Intergovernmental Relations,
Department of Housing and Urban Development, to Hon. Darrell
Issa, Chairman, House Committee on Oversight and Government
Reform, submitted by Ms. DeGette............................... 237
Letter, dated April 18, 2011, from Michael P. Stephens, Acting
Inspector General, Office of Inspector General, Department of
Housing and Urban Development, to Hon. Judy Biggert, Chairman,
Subcommittee on Insurance, Housing and Community Opportunity,
House Committee on Financial Services, submitted by Ms. DeGette 239
Timeline of Transparency of White House Negotiations over Health
Reform, submitted by Mr. Burgess............................... 251
``Obama makes a mockery of his own lobbyist ban,'' Washington
Examiner article by Timothy P. Carney, dated February 3, 2010,
submitted by Mr. Stearns....................................... 272
WHITE HOUSE TRANSPARENCY, VISITOR LOGS, AND LOBBYISTS
----------
TUESDAY, MAY 3, 2011
House of Representatives,
Subcommittee on Oversight and Investigations,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:35 a.m., in
room 2123, Rayburn House Office Building, Hon. Cliff Stearns
(chairman of the subcommittee) presiding.
Present: Representatives Stearns, Terry, Burgess,
Blackburn, Gingrey, Scalise, Gardner, Griffith, Barton,
DeGette, Weiner, Markey, Green, and Waxman (ex officio).
Staff Present: Todd Harrison, Chief Counsel; Stacy Cline,
Counsel; Sean Hayes, Counsel; Alan Slobodin, Deputy Chief
Counsel; John Stone, Associate Counsel; Alex Yergin,
Legislative Clerk; Carl Anderson, Counsel; Sam Spector,
Counsel; Aaron Cutler, Deputy Policy Director; Kristin
Amerling, Minority Chief Counsel and Oversight Staff Director;
Stacia Cardille, Minority Counsel; Brian Cohen, Minority
Investigations Staff Director and Senior Policy Advisor; Karen
Lightfoot, Minority Communications Director and Senior Policy
Advisor; Ali Neubauer, Minority Investigator; and Anne Tindall,
Minority Counsel.
Mr. Stearns. Good morning, everybody. The Subcommittee on
Oversight and Investigation of the Energy and Commerce
Committee will come to order. And I shall start with my opening
statement.
OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Ladies and gentlemen, we convene this hearing of the
Subcommittee on Oversight and Investigations today to gather
information concerning the Obama administration's commitment to
transparency. While he was a candidate, he repeatedly promised
that his administration would be the most open and transparent
in American history. He said he would make contacts between the
administration and lobbyists more open, and that he would
televise health care negotiations on C-SPAN so that people can
see who is making arguments on behalf of their constituents,
and who are making arguments on behalf of the drug companies or
the insurance companies. Those were his words.
The American people were made a lot of promises that, quite
frankly, do not seem to have been kept. We are here today to
examine the administration's policy on transparency and see
what else can be done to ensure that the White House follow
through on their own commitments.
Take the White House visitor logs as an example. In
September 2009, the President announced a new policy of
releasing White House visitor logs to the public. He did this
because as he stated, ``Americans have a right to know whose
voices are being heard in the policymaking process.'' What the
President has failed to mention is that, according to an April
18th report by the Center for Public Integrity, the new policy
was forced upon the administration in relation to a settlement
of four protracted lawsuits against the Government seeking such
records. A Federal judge ruled that those records are subject
to release under the FOIA law. Only 1 percent of the 500,000
meetings from President Obama's first 8 months in office have
been released. Only 1 percent. Many of the entries do not
reflect who actually even took part in the meetings. Two-thirds
of the 1 million names released are people on guided group
tours and thousands of known visitors to the White House,
including numerous lobbyists, are simply missing from the logs.
Since he announced his policy, new reports have uncovered
that the administration officials go to great length to avoid
disclosing their meetings with lobbyists. White House staff
apparently purposely schedule meetings at the Caribou Coffee
around the corner from the White House so that those meetings
won't show up on the White House logs. And one executive branch
agency even went so far as to require lobbyists to sign
confidentiality agreements about their discussions with the
administration.
This is not the only area we've seen the administration
give lip service to the idea of transparency. We've seen a lack
of transparency in the administration's response to FOIA's
request. Their secrecy about the work done by some of their key
czars, such as the climate change czar and health reform czar,
and more recently they've tried to require selective disclosure
of the public political contributions of Government contractors
but not unions. And our investigation into the secret health
care negotiation has been delayed by the administration for
more than 1 year.
I understand that my Democrat colleagues may want to
relitigate the past and compare this administration with
previous ones but, simply, the bottom line is that the American
people were promised, were simply promised a new era of
openness and accountability and they have not got it.
To learn more about White House policies, we had hoped to
hear from the White House themselves and their witnesses.
Unfortunately, the White House did not accept our invitation to
send a witness. This failure to send any witness to a hearing
about White House transparency, while depriving the public of
the administration's perspective, is revealing in its own way
about the administration's true attitudes.
Even without a witness from the White House, this hearing
will be of great value in simply pulling together facts and
reports from nonpartisan, independent sources like the ones
that are represented by our witnesses, and legitimate concerns
arising out of lawsuits brought by groups of different
ideologies. From large gaps in the White House logs, to secret
meetings with lobbyists, to waivers for lobbyists to serve in
the administration, to broken promises to broadcast all of the
health care negotiations on C-SPAN, to the appointment of
numerous unaccountable czars, to confidentiality agreements, to
a political litmus test for a Government contractor, for the
first time a coherent picture of the administration's pattern
and record on transparency issues will begin to emerge. And
that is what this hearing is all about.
[The prepared statement of Mr. Stearns follows:]
[GRAPHIC] [TIFF OMITTED] 70819.001
[GRAPHIC] [TIFF OMITTED] 70819.002
Mr. Stearns. With that I yield to the ranking member, the
gentlelady from Colorado, Ms. DeGette.
OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Ms. DeGette. Thank you very much, Mr. Chairman. Concern
about open government and transparency is not new to this
committee, this Congress, or this administration. That's why I
want to start by quoting a set of minority views to a committee
report concerning Bush administration open government practices
that I signed in 2004. ``These principles are important
elements of a democracy. They represent basic principles of
good government that transcend administrations, partisan
politics, and the politics and issues of the moment.''
Open government practices are integral to ensuring public
confidence and respect for Government institutions, and
Congress has a duty to conduct vigilant oversight to ensure
sunshine in the executive branch, regardless of which political
party controls the Presidency.
I am pleased that President Obama has prioritized
transparency and has acted to back up these promises. On his
first full day in office, the President announced the
administration's commitment to creating an unprecedented level
of openness in the Government. In January 2009, the President
reversed the Bush administration's policy regarding the Freedom
of Information Act, instructing agencies to adopt a presumption
in favor of disclosure.
Under President Obama, every administration agency has
accomplished an open government plan. The administration has
created new ethics rules that prevent lobbyists from working in
Government or sitting on Government advisory boards. They've
launched data.gov, a Web site that makes economic, health care,
environmental, and other information available online. They've
created a new online access to White House staff financial
reports and salaries, and taken numerous other steps to provide
the public with information about their government.
In September 2009, the President ordered a new policy of
posting secret security records that track visitor entries to
the White House. This is an unprecedented and voluntary step
that is not required by any open-government law. The Obama
administration has a strong transparency record and, frankly,
it is perfectly appropriate that Congress conduct oversight of
these policies and look into whether these policies are in fact
being followed. But the manner in which this particular hearing
has been called gives me, frankly, pause.
If the committee wants to fully understand White House
policies and practices it makes little sense to have a hearing
without a White House representative present, as the chairman
said. But in this case, the committee announced the hearing
only 1 week in advance and gave the White House only 6 days'
notice to produce a witness. The White House had already
committed to providing a witness at a hearing simultaneously,
occurring at this moment before the Oversight and Government
Reform Committee on the same topic, and so was unable to
provide a witness today for this committee under the short
notice provided by the majority.
Nonetheless the majority decided to go ahead and have a
hearing. Without a White House witness and with no tangible
allegations of misconduct, it appears that we're not holding a
hearing to gather facts but, rather, to provide a forum for
Members to air allegations about the White House.
Now, unfortunately, this would be an unnecessarily partisan
use of the oversight process. It would tragically not be the
first time, though, that members of this committee engaged in
partisan politics with regard to the White House transparency
issues. In 2004, a date that Mr. Waxman and I remember well,
Republicans on the committee took extraordinary measures to
prevent us from obtaining basic information about interaction
between the Bush White House and outside parties in developing
energy policy, the same kind of information this committee has
requested and already received from the Obama administration.
Early in 2001, Vice President Cheney chaired a task force forum
to develop energy policy.
In April 2001, Representatives Dingell and Waxman asked the
Vice President to disclose who was meeting with the task force,
and at their request the nonpartisan GAO asked the White House
for the same information. The Bush administration took the
position that the formulation of energy policy by the task
force was beyond any oversight. Republican leaders of this and
other committees refused to have hearings or support inquiries
into the transparency of the task force. After years of White
House intransigence, Representative Dingell in 2004 introduced
a resolution of inquiry. And that came to this--the full
committee, the full Energy and Commerce Committee. Every
Republican on this committee, including the chairman, voted to
block access to the information.
During consideration of the resolution, the then-committee
chair denied Democrat members the right to speak or debate the
resolution. Mr. Waxman and I each offered separate unanimous
consent motions to provide for debate time on the motion, and
they were both voted down. And so, really, we don't need this
kind of partisanship. Either we have disclosure or we don't.
Either we have rules or we don't. So if we want to look at
disclosure, let's get serious, let's look at disclosure and
let's not spend time just being partisan. I don't think that's
a good use of this subcommittee's time, Mr. Chairman.
Mr. Stearns. Thank you, gentlelady.
[The prepared statement of Ms. DeGette follows:]
[GRAPHIC] [TIFF OMITTED] 70819.003
[GRAPHIC] [TIFF OMITTED] 70819.004
[GRAPHIC] [TIFF OMITTED] 70819.005
Mr. Stearns. I would point out as you know, Cass Sunstein
came here with 1 week's notice from the administration. And I
would also point out to the gentlelady that the rules of the
committee are that 1 week is all we have to give.
Ms. DeGette. Right, except for there is another hearing
going on in another committee on this same topic. That's the
problem.
Mr. Stearns. I respect your opinion. Towards that end, I
ask unanimous consent to move this supplemental memo into the
record, which I think your staff has seen. Is there any
objection?
Ms. DeGette. Mr. Chairman, if we can have just a few more
minutes to review it, we only received it 5 minutes before the
hearing.
Mr. Stearns. Absolutely, absolutely. And we have 5 minutes
on our side; and to use 2 minutes, Dr. Burgess is recognized
for 2 minutes.
OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF TEXAS
Mr. Burgess. I thank the chairman for the recognition. In
2009 I became concerned and attempted to obtain the names of
health care industry officials who met with the administration
in the lead-up to the passage of the new health care law. This
information has been withheld by the White House, despite
statements that they would be the most transparent
administration in history. The information would simply
disclose with whom the administration was meeting. We did not
ask for sensitive national security information. This stalling
forced me to file a resolution of inquiry in the last Congress
and we are still waiting for those facts.
We were told by the White House counsel there was nothing
written down at these meetings. But you'll recall a photo op
after those meetings occurred where the President came out and
said that there was broad agreement to save $2 trillion to pay
for health care reform; $2 trillion, and no one even jotted
down a note on the back of an envelope? I find that strains
credulity.
This hearing today, seeking to promote transparency in
government, the White House did decline to send a
representative. So what's more pressing for the director of the
White House Office of Management Administration when one of its
chief duties should be to foster transparency? Perhaps they
will disclose who they were meeting with instead of meeting
with this committee.
In March, the response by the White House to our committee
request for visitor information, we were told that our request
would be a vast and expensive undertaking. I don't think it is
too vast to disclose what should be public information.
Further, the fact that this information is described by the
White House as ``vast'' means that the administration met with
more people than was originally thought.
Withholding of information is in direct contradiction to
the transparency. And the measures that were taken to limit
information on the logs is actually quite ironic, given the
fact that when campaigning for the Presidency, candidate Obama
did promise the most transparent administration in history.
There have been reports that the administration routinely
conducts meetings at coffee shops to evade visitor logs. Look,
it's really hard to bug the White House, but it's probably not
hard to bug Caribou Coffee. This should worry every person who
is connected with the administration that this is the way--this
is the way they have chosen to conduct business in order to
avoid any scrutiny or oversight by the United States Congress.
Thank you, Mr. Chairman, I'll yield back.
Mr. Stearns. The gentleman's time is expired.
The gentlelady from Tennessee, Ms. Blackburn, is recognized
for 2 minutes.
OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TENNESSEE
Mrs. Blackburn. Thank you, Mr. Chairman, and thank you for
holding the hearing today on these issues of transparency at
the White House. I was truly disappointed to learn that Mr.
Brad Kiley, from the White House Office of Management
Administration, was unable to join us today to allow for this
committee to fully extend its constitutional obligation to
provide checks and balances through reasonable oversight.
In talking about lobbyists and general access to the most
powerful office in the world, it is important to discuss the
responsibilities that key decision makers in the executive
branch have.
An issue some of my constituents raised with me is the
proliferation of czars, specifically those who function with
political power and level of responsibility traditionally only
designated for Senate-confirmed Cabinet Secretaries. Since
these czars aren't subject to congressional oversight, we have
little information on their background and how their background
influences policy.
My concurrent resolution H.C.R. 3 would allow for greater
oversight of these powerful bureaucrats. My colleague, Mr.
Scalise, shares my concerns in light of the President's signing
statement last month nullifying section 2262 of the budget
compromise that prohibited using appropriations for salaries
and expenses of certain White House czars.
While the President promised that he would not use signing
statements, he is legally permitted to do so. The implication
of this action is that it fundamentally undermines the
transparency the American taxpayer is entitled to, and they
make certain that we should follow up on this.
I look forward to today's testimony and to working closely
with you to promote openness and transparency, and I yield the
balance of my time.
Mr. Stearns. The gentlelady yields the balance of her time.
And the gentleman from Georgia, Mr. Gingrey, is recognized
for 1 minute.
OPENING STATEMENT OF HON. PHIL GINGREY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA
Mr. Gingrey. Mr. Chairman, thank you. The hearing today
really is all about asking the question, if this President
truly has fulfilled his campaign pledge--that being to have the
most open and transparent administration in history but
certainly much more open and transparent than the previous
administration--that's what it is all about. That's why you on
this side of the aisle, you will hear a lot of Members say, you
know, I agree with 85 percent of what the President says, I
disagree with 85 percent of what the President does. He's not
following through.
We can name specifics, and some of my colleagues have done
that, but the bottom line is that we are having these witnesses
here today and, unfortunately, not one from the administration.
I don't know why Mr. Kiley couldn't copy the notes of the
administration designee going to Government Oversight and
Reform. That would have been particularly easy; he could have
shared that with us. Maybe he was involved in capturing and
killing Osama bin Laden, but I doubt it. And he had plenty of
time to be here. It's disappointing that he's not here. But
these witnesses will help us understand exactly what has been
done and what has not been done. This business, like Dr.
Burgess says, of having meetings, trying to avoid documentation
and recordkeeping of visitors at the White House, across the
street at Caribou or Burger King or whatever, is a real
security issue. So this is a very important meeting. I thank
the chairman and I yield back.
Mr. Stearns. I thank the gentleman.
And I yield 5 minutes to Ms. DeGette.
Ms. DeGette. Mr. Chairman, we have no objection to the
revised----
Mr. Stearns. By unanimous consent, the memo will be made
part of the record.
Ms. DeGette. And I would yield our additional 5 minutes to
Mr. Waxman.
Mr. Stearns. The gentleman, the distinguished ranking
member, is recognized for 5 minutes.
OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Waxman. Mr. Chairman, today's hearing addresses an
important subject. I've long been a proponent of transparency
in the executive branch. Transparency improves decision making,
it makes government more accountable, it produces better
results.
But I must say it's hard to take this hearing seriously.
You want to find out the facts, and yet you wouldn't give the
administration more than 6 days' notice to come in and present
their case--they said they didn't have enough time and they had
a conflict in the schedule--rather than give them the courtesy
of holding this hearing a little later? The hearing is being
held, it seems to me, more to give Members on the Republican
side of the aisle an opportunity to say, ``They didn't come,
they wouldn't come.''
Oh, please, give me a break. What we see here is a pattern
by this committee. We should have an administration witness
here to testify, but this wasn't the fault of the White House.
The chairman even said we gave them 6 days' notice; that's all
we need to give them. What kind of thinking is that? If you
want them here, you try to accommodate people's schedules.
Instead of rescheduling the hearing so we could hear from an
appropriate White House official, the majority decided to
proceed today without a White House witness.
This is not the first time this happened on a committee
this year. In April, other Energy and Commerce Subcommittees
held three hearings on EPA actions. In these cases the
committee also gave short notice to the administration, and
this resulted in EPA being unable to testify at some of the
hearings.
The committee should not be holding hearings without
essential witnesses. It's not a good use of the committee's
time. But I don't think this committee's time is being devoted
to the important issue of transparency. This committee is
devoting time to politics.
Now, let's look at the previous administration. The Bush
administration--and I was very highly critical of their
policies on transparency, because Vice President Cheney met
secretly with energy lobbyists and we couldn't even get the
list of lobbyists with whom he had meetings. The administration
used pseudo classifications like ``for official use only'' or
``sensitive,'' but unclassified, to keep embarrassing
information from the public.
And we exposed the use of RNC, that's the Republican
National Committee, e-mail accounts, by senior Bush
administration officials that circumvented the Presidential
Records Act.
Our ranking member, Ms. DeGette, went through some of these
things; how Cheney tried to keep us from getting the
information and how this committee and every Republican tried
to keep us from getting information about the assessment of the
administration on the Part D Medicare costs. We tried to get
that information and we were frustrated.
To his credit, President Obama has taken important steps to
increase transparency in the White House. They reversed the
number of decisions by former President Bush and made it harder
to get information about executive branch officials.
In September of 2009, the President announced the voluntary
disclosure of White House visitor records. This is a voluntary
disclosure. He established new policies to make it easier for
citizens to get information through the Freedom of Information
Act. And his open government initiative made an unprecedented
volume of information available to the public. They established
new ethics rules to prevent special interests from having undue
influence.
Well, I think they have a good record on transparency. No
record is without challenge; we can always get better. But I
don't think the proponents of open government should rest. We
should use this hearing to examine additional steps that can be
taken to increase transparency.
I just heard from Dr. Burgess that he wanted to hear about
the discussions at the White House with the different health
groups. Well, we knew those meetings were taking place. It was
reported in the press. The White House has their logs; we know
who came. It wasn't for open government, it was for national
security, but we got the information from those logs.
The committee not only is unsatisfied with being able to
accommodate the White House to allow them to give testimony,
they are now trying to get all these private groups with the
White House to disclose all the e-mails that they have, all the
conversations they had internally, to try it find out exactly
what everybody said to whom.
Now, I find that quite troubling when people have a right
to go to their government, whether it is the White House or the
Congress, and talk about their concerns, their legislative
concerns. They shouldn't be intimidated by trying to get
information that may have nothing to do with that. It goes to a
broad fishing expedition when you ask for such extensive
information.
But nevertheless, I can't take this hearing seriously. I
don't think the Republicans want open government. They just
want another chance to use their power to whack this
administration and the Democrats. And if that's their idea of
oversight, we are seeing a good example of it today.
[The prepared statement of Mr. Waxman follows:]
[GRAPHIC] [TIFF OMITTED] 70819.006
[GRAPHIC] [TIFF OMITTED] 70819.007
Mr. Stearns. The gentleman yields back.
Just a point of information for the gentleman. The
Government Oversight had a hearing this morning, starting at
9:30. They asked for Brad Kiley, the same person we asked for,
who is the Director of Management Administration. He sent a
designee to that committee, the Government Oversight, but he
did not send one to us, which disappointed us. So I just would
point out that he obviously wants to be transparent, he could
have sent a designee.
With that, let us take care and have the first panel start.
We have three witnesses. We appreciate your coming here. We
have Mr. Tom Fitton, he's President of Judicial Watch, the
public interest group that investigates and prosecutes
government corruption. It was founded in 1994. Judicial Watch
is a foundation that promotes transparency, accountability, and
integrity in government, politics and the law.
We have Mr. John Wonderlich. He is the policy director of
the Sunlight Foundation, one of the Nation's foremost advocates
for open government. John spearheads Sunlight's goal of
changing the Government by opening up key data sources and
information to make Government more accountable to its
citizens.
And Ms. Anne Weismann serves as CREW's chief counsel.
CREW's stated mission is to use high-impact legal action to
target government officials who sacrifice the common good for
special interests.
I welcome our three witnesses today. As customary, I want
to thank them for coming. The committee rules provide that
members have 10 days to submit additional questions for the
record.
Let me address the three of you today. You're aware the
committee is holding an investigative hearing and when doing so
has had the practice of taking testimony under oath. Do you
have any objection to taking testimony under oath?
The Chair then advises you that under the rules of the
House and the rules of the committee, you are entitled to be
advised by counsel. Do you desire to be advised by counsel
during your testimony today?
In that case, if you'd please rise and raise your right
hand, I will swear you in.
[Witnesses sworn.]
Mr. Stearns. You're now under oath and subject to penalties
set forth in Title 18, section 1001, of the United States Code.
STATEMENTS OF TOM FITTON, PRESIDENT, JUDICIAL WATCH; JOHN
WONDERLICH, POLICY DIRECTOR, SUNLIGHT FOUNDATION; AND ANNE
WEISMANN, CHIEF COUNSEL, CITIZENS FOR RESPONSIBILITY AND ETHICS
IN WASHINGTON (CREW)
Mr. Stearns. You may now give a 5-minute summary of your
written statement. Mr. Fitton.
TESTIMONY OF TOM FITTON
Mr. Fitton. Thank you, Chairman Stearns and Congressman
DeGette, for hosting this hearing and allowing me to testify on
this important topic. Judicial Watch is without a doubt the
most active Freedom of Information Act requester and litigator
operating today. And we've been pursuing this during the
Clinton administration, during the Bush administration, and
obviously during the Obama administration.
The American people were promised a new era of transparency
by the Obama administration and, unfortunately, this promise is
not being kept. To be clear, the Obama administration is less
transparent than the Bush administration. We filed over 325
FOIA requests with the Obama administration and have been
forced to sue over 45 times to gain access to documents. And
obviously lawsuits don't necessarily guarantee access to
documents, but they put you a little bit further along than you
otherwise would be if you relied on their good graces to turn
documents over.
I would like to talk a little bit about the visitor logs.
In fact, the Obama administration is refusing to release,
contrary to the Freedom of Information Act, tens of thousands,
now according to this recent report, hundreds of thousands of
visitor logs and insist citing a Bush administration legal
position that the visitor logs are not subject to the FOIA act.
So while the Obama administration attempts to take the high
ground by releasing a select number of visitor logs, it shields
hundreds of thousands of others in defiance of FOIA law. In the
fall of 2009, specifically Norm Eisen, invited us to visit with
them to talk about the White House visitor logs.
The White House encouraged us to publicly praise the Obama
administration's commitment to transparency, saying it would be
good for them and good for us. However, they refused to
disclose these records as required to under the Freedom of
Information Act, and we were forced to sue to enforce the law.
To date, every court that has reached this issue has
concluded that the White House Secret Service visitor logs are
agency records and must be processed in response to properly
submitted FOIA requests. In fact, we have received FOIA Secret
Service logs from the Bush White House until they decided to
stop doing that with my colleague from CREW.
Now we know, as the committee has noted, that in order to
avoid further disclosure of meetings with lobbyists, there are
meetings across the street at Caribou Coffee shop and in the
White House conference center. We are investigating to see
whether we can get records from that conference center. And
other investigators at the Center for Public Integrity have
further confirmed what Judicial Watch has long known; that the
visitor logs voluntarily disclosed by the White House are
little more than a data dump, full of holes that shield rather
than shed light on visitors and their business at the White
House.
On major issue after major issue, FOIA is ignored by this
administration. And specifically of interest to this committee
perhaps, we have yet to get one document, despite asking months
ago and suing in Federal court over their issuance of the
waivers to ObamaCare. To me--that to me is a very cogent
instance of their disregard for the Freedom of Information Act.
And with regard to the lobbyists, the difference between
this administration's rhetoric and its practices is that they
promised no lobbyists in the White House, the Washington
Examiner examined at least--and found at least 40 lobbyists
hired by the Obama White House. And they promised they would
end the revolving door in terms of lobbyists going into the
White House and out by inserting into their ethics pledge a
promise not to work on issues that your former clients or
others had worked on prior to your working in the White House
if you're an agency appointee or White House appointee. Yet
they have waivers of these ethics requirements.
Only in Washington can you get away with the phrase
``ethics waivers,'' can you waive ethics. This is the Obama
White House's approach to transparency. They have 32 ethics
waivers which allow lobbyists who were hired as White House or
administration officials to work on work that they had worked
on when they were lobbyists just shortly before they had been
hired. We now note that the New York Times has reported that
the White House has asked lobbyists looking to work there to
deregister as lobbyists to avoid this issue.
How does that comport with transparency, accountability,
and integrity? This ethics gamesmanship undermines the rule of
law and makes one think that this administration has something
to hide. You know, this ought to cut across partisan and
ideological lines. Judicial Watch, to be clear, pursued the
Bush administration without fail on these transparency issues.
We took the administration all the way up to the Supreme Court
over this energy task force issue. We fought with them over
releasing contracting information about Halliburton that was
tied to the Vice President. Many of the documents we uncovered
were used by opponents of the Bush administration to attack
them.
So we approach this from a nonpartisan fashion. We're
conservative; but I don't think conservatives or liberals,
there should be any daylight between them on transparency and
open government. Thank you.
[The prepared statement of Mr. Fitton follows:]
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Mr. Stearns. Thank you.
Mr. Wonderlich.
TESTIMONY OF JOHN WONDERLICH
Mr. Wonderlich. Thank you, Chairman Stearns, Ranking Member
DeGette, and members of the subcommittee for the opportunity to
testify here today.
My organization, the Sunlight Foundation, was as
enthusiastic as anyone when in September 2009 the White House
announced that they'd begin releasing data from the visitor log
system on line. And in the 18 months or so since that policy
was first announced, the disclosure of the visitor logs has
become a symbol for White House openness through both media
accounts and frequent commentary from administration officials.
Releasing information about who visits the White House has been
described as both historic and disappointing, and the truth
lies somewhere in between.
The White House frequently points to the logs as evidence
of their commitment to transparency, causing even greater
scrutiny of their effectiveness. But ultimately the system that
the White House is describing as a disclosure system was
designed as a security system. Nevertheless, the visitor logs
data have proven to be a valuable source for some journalism.
Perhaps most notably, my colleague Paul Blumenthal of the
Sunlight Foundation wrote a broadly acclaimed piece on the
health care negotiations between health care lobbyists and the
White House which used the visitor logs data extensively.
Now, some of the limitations of the visitor logs, though,
are simply artifacts of how this was designed to function as a
security system and not as a disclosure system. From the time
the visitor logs were first released on line, the White House
was explicit about how the records release would work. The
stated policy lays out broadly defined exceptions to what kind
of visitors records are withheld. By and large, these
exceptions are reasonable. The White House doesn't release
personal information like birth dates or particularly sensitive
meetings like those of the Supreme Court nominees. Of course,
these exceptions could all be abused or ignored, since this was
a self-imposed policy. So to ensure continuity with true future
administrations and to strengthen the disclosure, Congress
should require disclosure of the White House visitor logs and
codify these requirements into law.
But ultimately, the most significant limitation of
disclosing the visitor logs comes because they only record
information for people who access the White House through the
WAVE system. As everyone has noted, there have been numerous
reports of meetings scheduled in the White House conference
center or in coffee shops near the White House. In effect,
these meetings circumvent disclosure enabled through the
visitor logs policy.
This shouldn't be a surprise, however. Information creates
political power and administration officials who regularly
avoid lengthy e-mail exchanges are, of course, going to default
towards venues that have no accompanying political liability.
Visitor logs records will never encompass offsite meetings,
telephone calls, or e-mails.
For comprehensive disclosure of who's influencing the White
House, the visitor logs are ultimately not the best tool for
the job. The policy of releasing the visitor logs is still a
good one and Congress should be involved in strengthening it
and making it permanent. But that policy ultimately cannot live
up to our expectations, because we are treating it as though
it's a replacements for lobbying disclosure.
Congress should examine and craft new disclosure laws that
are strong enough to move at the pace of influence that they
are intended to expose. Lobbying disclosure laws should require
realtime online disclosure of paid lobbying efforts and apply
to both Congress and the executive branch. Most urgently, the
threshold for who should register as the lobbyist must be
dramatically expanded, and reporting of lobbying activities
should be reported on line in real time.
Despite their shortcomings, the visitor logs released by
the administration have provided a meaningful view of influence
within the White House, and perhaps just as importantly, have
shown us how far we have to go to create meaningful disclosure
of influence in Washington. Thank you.
[The prepared statement of Mr. Wonderlich follows:]
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Mr. Stearns. I thank the gentleman.
Ms. Weismann, if you don't mind, just pull the mic down a
little bit and speak into it. That's good.
TESTIMONY OF ANNE WEISMANN
Ms. Weismann. Mr. Chairman, Ranking Member DeGette, members
of the Committee, thank you for the opportunity to testify
today about White House visitor logs and lobbyists.
As mentioned, I am chief counsel for Citizens for
Responsibility and Ethics in Washington, or CREW, the plaintiff
in the litigation that led to the White House decision to
voluntarily post White House visitor logs online.
And by way of background, prior to joining CREW I worked at
the Justice Department for about 20 years, including defending
government information litigation. No one has a greater or more
vested interest than CREW in ensuring that the White House
follows through on its commitment to make the White House
visitor records publicly available. Although recent new
accounts have suggested otherwise, the White House has lived up
to that commitment.
Some complain the logs lack critical information such as
whom the visitor is meeting with and that requests for
clearance were made by low-level staff in order to conceal the
true nature of the visit. These criticisms reflect the
fundamental misunderstanding of the nature of these logs and
the purpose they serve. They are not the equivalent of
calendars or date books. And as every court to address this
issue has found, they are the records of the Secret Service,
not the President.
The Secret Service creates these records to further its
statutory mission to protect the President, Vice President and
their families, which necessarily extends to protecting the
White House complex. Because they are created for that purpose,
they contain only that information the Secret Service needs to
ensure no visitor to the White House poses a risk to the safety
or security of any of its occupants. That information includes
identifying information about the prospective visitor, name,
date of birth, Social Security number, as well as the dates,
time, and location of the planned visit and the name of the
White House passholder requesting clearance.
Simply stated, in performing its protective function, the
Secret Service does not need the identity of the individual or
individuals the prospective visitor is seeing from a security
standpoint. It is therefore not surprising that many of the
posted visitor logs do not identify the White House's
individual with whom the visitor had an appointment. Nor is it
surprising or should it be troubling that top White House
officials, such as the Chief of Staff, did not personally
perform the ministerial task of requesting clearance for their
visitors.
The Secret Service requires only that the person requesting
clearance be a passholder, able to provide the required
information. Moreover, the nature of the information in the
Obama White House visitor logs mirrors that of previous
administrations, including the frequent omission of such
details as the identity of the person with whom the visitor has
an appointment, which reinforces the central point, that these
are Secret Service records that the Secret Service uses and
creates to perform its protective function. They are not an
analog to appointment calendars and date books that individual
White House officials might keep.
To be clear, CREW very much disagrees with the legal
position of the White House that these records are Presidential
and therefore not publicly accessible under the FOIA.
Nevertheless, we settled our litigation, which began under
the Bush administration and continued through the Obama
administration, when the White House offered to not only
provide CREW with its requested records, but to post on the
White House's Web site on an ongoing basis nearly all visitor
records, subject to very limited and reasonable expectations.
Again, the disappointment many feel stems in part from the
inherent limitations of these records, what they do and do not
do. I think it's important to note, however, as my colleague
Mr. Wonderlich did, that they are still of value. They reveal,
for example, the kind or level of influence an individual
visitor might have.
Beyond making White House visitor logs accessible, the
administration has launched some other directives that we have
discussed in my testimony. I do want to stress that while we
support these efforts, such as the open government directive
and the FOIA memoranda that the President issued in his first
full day in office, followed up by Attorney General Eric
Holder's memo on FOIA 3 months later, these are only a first
step. And we remain disappointed that the Government as a whole
has yet to achieve the goals of transparency and accountability
that the President has set.
There remain very real challenges and the commitment has
yet to trickle down to the agency staff charged with
implementing open government directives such as the FOIA. I
defer to the committee for the rest of my testimony. I'm happy
to answer any of your questions, thank you.
Mr. Stearns. I thank you, Ms. Weismann.
Just for the edification of the members here, CREW stands
for the Citizens for Responsibility and Ethics in Washington.
[The prepared statement of Ms. Weismann follows:]
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Mr. Stearns. Before we start, I ask the ranking member
unanimous consent that the contents of the document binder be
introduced into the record and authorize staff to make any
appropriate redactions.
Ms. DeGette. No objection.
Mr. Stearns. Without objection, so ordered.
[The information follows:]
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Mr. Stearns. I also want to thank the witnesses, and the
committee rules provide that members have 10 days to submit
additional questions for the record and also provide their
opening statements.
Before I start. I would say to the witnesses I just urge
all of you to be as direct as you possibly can in your answers.
Some members will ask a question that requires a yes or no, and
ask that you limit your yes or no to those questions. And I
appreciate your understanding so we have a limited time for
each of us.
Before we begin, I would like to show a video. It is a
collection of the President's promises about conducting the
negotiations over health care reform in public. So if you can
please watch this video.
[Video shown.]
Mr. Stearns. So you can see from this video that he was
making a promise to the American people to have open, public,
televised government. He went out of his way during the
campaign to criticize the process that was taking place here in
Washington, and I think our focus here today is to show really
what he talked about did not come about. We can't even get the
exact records of who went to the White House.
Before I start, Mr. Fitton, he mentioned that there were 32
waivers. You mentioned that. Were they issued by the White
House, including the President? Is that true?
Mr. Fitton. Yes, it is true.
Mr. Stearns. And who makes ultimately the decision to give
these waivers to the czars and lobbyists that come into the
administration?
Mr. Fitton. I think the decision is made by a variety of
individuals. If it's in the White House, I think it is granted
by then the ethics czar Norm Eisen or White House counsel.
Mr. Stearns. Does the President of the United States have
to approve his ethics violation waivers?
Mr. Fitton. I don't know whether he approves it personally
or not.
Mr. Stearns. So the President gets involved at all, do you
think?
Mr. Fitton. You know I--for instance the lawyer, the White
House counsel, had a waiver approved for his dealings with the
DNC. He used to be DNC chair. I would assume the President had
some knowledge of that, but I don't know.
Mr. Stearns. I think directly the President would make that
decision. So the President himself is issuing a waiver for his
counsel in dealing with a political organization; is that
correct?
Mr. Fitton. I don't know that to be true. I would assume he
would have approved it, though.
Mr. Stearns. And there is nowhere, is there,
constitutionally that allows him to make this waiver on his
own?
Mr. Fitton. Well, he had issued an executive order
detailing this pledge related to not working on work that
affected your former clients. Within that ethics pledge is an
ethics waiver that is repeatedly invoked, as I mentioned.
Mr. Stearns. Which would be in direct contradiction to what
he said, by what his actions indicate; would that be true?
Mr. Fitton. Yes.
Mr. Stearns. Both you and Mr. Wonderlich are familiar with
the visitor logs that have been released by the White House and
you're familiar with the Center for Public Integrity reports
that evaluated these logs; is that correct?
Mr. Fitton. Yes.
Mr. Stearns. This report says, ``The logs are incomplete
for thousands of other visitors to the White House, including
lobbyists, government employees, campaign donors and public
policy experts.'' That's your quote.
Why do you think the White House would withhold so many
meetings with lobbyists, particularly in light of what we see
the President say during the campaign trail? Either one of you.
Mr. Wonderlich. Well, when they describe them as
incomplete----
Mr. Stearns. Just take the mic and move it a little closer
to you, if you can. That would be helpful.
Mr. Wonderlich. When they say that they are incomplete, I'm
not sure that that means that the White House is withholding
them. The CPI----
Mr. Stearns. OK, good point. So it is yet to be determined
whether withholding--just the fact that we can't get them, we
can't conclude that they are withholding them. But isn't that
contrary to the stated purpose of the White House, which is
basically they are withholding information meetings related to
national security or, shall we say, extremely sensitive,
confidential matters? Wouldn't this be contrary to what they
indicated they would do with their transparency policy?
Mr. Wonderlich. I think it is in line with how they said it
would work, but we would like to see oversight to make sure
that those standards are applied appropriately.
Mr. Stearns. Do any of you know about the Center for Public
Integrity reports that they have not put out any information
that deals with this? Do any of you know about that, either one
of you?
Mr. Fitton. In terms of the records being withheld? We
don't know. They said they are going report them. There are no
reports on the Internet Web site. The key point here is that
these records, they say, are not subject to FOIA, so all we can
do is take their word for it; which is not appropriate, given
the fact we know they are subject to FOIA.
So it is really a lawless process, the release and
disclosure of these records.
Mr. Stearns. Let's also point out that their report also
said that logs routinely omit or sort of cloud key details
about who these visitors were, who they met with, what was the
nature and the subject of their visits, and even includes the
names of people who never showed up. Now, how could that
possibly be if they are being transparent and they want to
abide by their own rules?
Mr. Wonderlich. Sorry. To me it is an artifact of the
design of the system that's intended to provide security for
the White House rather than well-defined disclosure.
Mr. Fitton. White House officials quickly understand, in my
view, what these records disclose, and they set up the meetings
accordingly, to make sure that certain information is not
disclosed.
Mr. Stearns. Would either one of you conclude the fact that
they have routinely omitted, sort of clouded the details about
the identity, and actually gave false information; would this
be construed as they are obstructing in any way the requests of
the outside groups or their own rules? Is this sort of a form
of an obstruction to provide a behavior which is not conducive
to providing transparency? Could it be construed that way?
Mr. Wonderlich. I don't have any evidence that they are
intentionally obstructing it. I would note Jay Carney was asked
in one of his first press briefings whether or not the White
House had issued any guidance for when it's appropriate to hold
meetings off site, and he didn't answer that question and
basically said, look at our record. I think that is an
interesting question, but I have no evidence that they are
intentionally obstructing the view.
Mr. Stearns. Ms. Weismann, I didn't talk to you. Is there
anything you'd like to add?
Ms. Weismann. I think some of your questions get to what my
testimony got to as well, which is that it misunderstands the
nature of these particular records. I don't think there's
anything that the White House has disclosed or not disclosed
with respect to the White House visitor logs that is not in
line with their commitment. And again, I would note that the
nature of the information in these records is no different--and
I know this from personal experience--from the nature of the
White House visitor logs that the Bush White House maintained
and previous administrations maintained. As Mr. Wonderlich
said, it is an artifact of the nature of the records.
Mr. Stearns. My time's expired. The ranking member from
Colorado.
Ms. DeGette. Thank you, Mr. Chairman.
I kind of want to follow up on that question, Ms. Weismann,
because as I understand it, the litigation that your
organization was involved in, starting with the Bush
administration and then settled by the Obama administration,
was exactly about these visitor logs. And as I understand it,
there's some dispute whether FOIA requires the disclosure of
the visitor logs. A lot of the watchdog groups say, yes, they
think it does, and the White House has traditionally said no.
So part of the purpose of the settlement was to figure out a
way to have disclosure of what they call these WAVES records;
is that right?
Ms. Weismann. That is correct.
Ms. DeGette. And what is the purpose, again, of these WAVES
records?
Ms. Weismann. It's for the Secret Service to be able to,
from a security standpoint, clear visitors for access to the
White House.
Ms. DeGette. Frankly, I would like to see ways to disclose
on the video people who come to the White House and so on. But
that's not what these records that we're talking about here,
that's not the purpose of them; it is to get people security
clearance.
Ms. Weismann. That's correct.
Ms. DeGette. In September 2009, President Obama announced a
new policy to voluntarily disclose White House visitor records,
and visitors records created after September 15th, 2009, are
routinely posted on line; is that correct?
Ms. Weismann. Yes.
Ms. DeGette. To date, there are over 1.25 million White
House visitor records posted on the White House Web site in a
searchable format; is that right?
Ms. Weismann. I don't--I can't confirm that, but that
sounds about right. And there is a large volume and they are in
a searchable format.
Ms. DeGette. Now, has any administration, Democrat or
Republican, before the Obama administration, routinely posted
these WAVES records on line?
Ms. Weismann. No, they have not.
Ms. DeGette. OK. Now under the Obama administration policy,
visitor records created after September 15th, 2009, are
disclosed on line; but records created during the Obama
administration prior to that date are treated differently. For
the ones before September 15th, 2009, the White House responds
voluntarily to individual requests as long as they are
reasonable, narrow, and specific. And then there is a form. Is
that right?
Ms. Weismann. That is correct, yes.
Ms. DeGette. And do you think it is reasonable to treat the
WAVES records before September 15th, 2009, differently?
Ms. Weismann. Yes, I do. If you want, I can explain.
Ms. DeGette. I would briefly, yes.
Ms. Weismann. Yes. You know these records continue to
raise, in specific instances, national security concerns. The
White House was going to going forward, put a system in place
where they could tag those kinds of visits as they occurred,
which would make it easy when they went back to post the
records on line to know which ones needed to be segregated for
national security purposes. That was not done for all of the
visits that predated September 2009, which would have been an
enormous undertaking. And that was the compromise we reached.
Ms. DeGette. I see. A lot of people have been criticizing
this voluntary disclosure of visitor records. As Mr. Fitton
said today, it is a data dump full of holes that shield rather
than shed light on visitors and their business at the White
House.
The recent report by the Center for Public Integrity noted
the event description is left blank for more than 20 percent of
the visits. And I guess, you know, I think those are valid
criticisms in some ways. I'm wondering if you can talk to me
about the criticisms that the visitor logs disclosures are not
sufficient and can more be done?
Ms. Weismann. Well, certainly, more can be done. Again, it
goes back to for purposes of the Secret Service, they are
sufficient. This is the minimum----
Ms. DeGette. Right. It goes back to the nature of the
records.
Ms. Weismann. Right, right. I think perhaps part of the
problem is that the White House itself may have oversold what
the visitor logs do and do not do.
Ms. DeGette. OK, thanks.
Mr. Chairman, I just want to conclude my questioning by
talking about the supplemental memo that we just got this
morning, because I'm kind of concerned about some of the
allegations and some of the members talked about this and even
one or two of our witnesses. They talk about multiple news
outlets reporting that White House staff has been holding
meetings at coffee shops in order to have those meetings appear
on a disclose list. But these allegations are all from an
unsourced article in the New York Times, which quotes a Caribou
Coffee barista, but not a single named administration official.
We don't know of any work that's been done to investigate the
truth or falsehood of these allegations.
And the same thing, there was a newspaper report that one
executive branch agency requires people to sign confidentiality
agreements, and this is referring to a Politico article; but
some basic work shows that HUD did nothing wrong.
In fact, our friend, our colleague Judy Biggert had asked
for some evidence to that and the HUD inspector general
investigated and said nothing was wrong.
So, Mr. Chairman, I would like to enter the results of that
IG investigation and report to the Financial Services Committee
into the record.
Mr. Stearns. Without objection, so ordered.
Ms. DeGette. Thank you.
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Ms. DeGette. And I just want to finally say that there's
nothing wrong with somebody going out for a cup of coffee.
There is something to me that looks bad if somebody is holding
a meeting at a coffee shop to avoid disclosure. So I think we
need to be really careful what we're talking about here.
I'm sure all of us want to be that way, and I yield back.
Mr. Stearns. Just a point of information for the
gentlelady. The administration has yet do deny these
allegations. And in fact you said there's no names. Rich Gold,
a prominent Democratic lobbyist, has taken part in numerous
meetings at the Caribou Coffee Shop, said that the White House
staff members--and so we have a record contrary to what you
just indicated.
So with that, the gentleman from Texas is recognized, Mr.
Barton.
Mr. Barton. Thank you, Mr. Chairman. Before I ask my
questions, I just want to make a comment on some of the things
that Ranking Member Waxman said.
I guess--I guess it is a surprise to the Obama
administration that there's a Republican majority in the House,
and we actually show up for work most weeks, Monday through
Friday, and are holding hearings. And some of those hearings
require the presence of the Obama officials. The American
people understands it. Three witnesses that are here today
understand it. But apparently this President and his Cabinet
don't. I don't think we should apologize that we ask the
administration to have witnesses. Ostensibly they work for the
people, too, and they are supposed to be at work in Washington,
Monday through Friday, most weeks, and apparently they are not.
So I would hope that we could get with Mr. Waxman and
Chairman Upton and figure out a way to let the Obamas know that
Monday through Friday, most weeks, we're going to be in session
and this committee and this subcommittee are going to be
holding hearings and we are going to request the presence of
senior Obama officials from the various agencies under the
jurisdiction of the Energy and Commerce Committee. That should
not be a news flash, but apparently it is.
In terms of this hearing today, as I understand it, the
general defense of the Obama administration for being
nontransparent is all the other Presidents were nontransparent,
too. And that is a defense; but as the chairman just pointed
out, it's not in and of itself defensible since this
administration promised to be transparent. Chairman Stearns
showed the clip of the President as a candidate saying that the
negotiations on health care would be on C-SPAN. As we all know,
that didn't happen.
The purpose of transparency is so that people in the
democracy know what those that are in power are doing, who they
are talking to, what they are talking about. Now, I personally
do not want to know all the meetings that the President and his
National Security Advisors had about capturing and killing
Osama bin Laden; I don't need to know that. That is a national
security issue. Don't tell me until you can--as the President
did Sunday night--go on TV and say, ``We got him.''
However, if the President wants to meet with Al Gore about
global warming, that is not a national security issue. I think
we have a right to know that. And this President apparently has
gone out of his way to be nontransparent in spite of the fact
that he said he would be transparent.
Now, we don't have an administration witness, but we do
have a Democrat-recommended witness, the young lady, Ms.
Weismann.
I am going to read you a quote, and you tell me who the
author or authoress of this quote is: ``At best, this
administration is marginally more transparent than the previous
administration.'' Who said that?
Ms. Weismann. I would like to hazard a guess that it could
have been something I or another colleague of mine at CREW
said.
Mr. Barton. You would hazard a guess?
Ms. Weismann. We say a lot of things publicly.
Mr. Barton. OK. Well, my staff says that you said that. It
says ``Anne Weismann, chief counsel for the Citizens for
Responsibility and Ethics in Washington.'' Do you stand by that
statement?
Ms. Weismann. Yes, I do.
Mr. Barton. OK. Do you agree that--and, again, I am only
asking you because we don't have the administration, and you
were somewhat supportive of their policies. Do you think that
President Obama has tried to implement his campaign promise of
being more transparent in the White House?
Ms. Weismann. I do. I think he has put some of the key
components in place. The problem, in our view, is not what the
White House is or is not doing; it is what is happening at the
agency level. And that is where we see the disconnect between
the promises of transparency and accountability the President
has made and what agencies are actually doing.
And, like Mr. Fitton, we do a lot under the Freedom of
Information Act, and that really informs our experience in this
area.
Mr. Barton. Well, the two witnesses to your right--and I am
not going to have time to ask them questions, but both of them,
in their written testimony, point out that less than half of
the Freedom of Information Act requests have been honored by
the Obama administration. And, as you pointed out, these
visitor logs, which are really more for clearing people into
the White House, don't have a lot of information about who is
meeting and what the purpose is.
And, again, if it is national security, I don't want to
know. But if it is energy policy, if it is health policy, if it
is environmental policy, if it is budget policy, the Congress
and the people of the United States, in my opinion, have a
right to know. And this President is stiffing us. He is not
sharing that. And it is one thing if you don't promise to do
it, but if you promise to do it and don't do it, then you
should be held accountable.
With that, Mr. Chairman, I yield back.
Mr. Stearns. The gentleman's time has expired.
The gentleman from California, Mr. Waxman, is recognized
for 5 minutes.
Mr. Waxman. Mr. Chairman, I was impressed by the statement
of Mr. Barton. We are here at work Monday through Friday; the
administration should be ready to show up when we want them to.
Well, I would have thought that this hearing could have been
held next week. We could have discussed another date. To say,
``You have to be here 6 days from now,'' which is the minimum
notice requirement, is awfully harsh. And if somebody can't
accommodate you, then you try to get a hearing that is a fair
hearing. Well, this doesn't appear to be what we are talking
about today.
Mr. Barton. Will the gentleman yield?
Mr. Waxman. Yes.
Mr. Barton. You are here. Is it harsh that you are here?
Mr. Waxman. Well, I have known about this hearing, and I am
here. But that doesn't mean the person at the White House has
to be here if they have a conflict. If I have a conflict, I
won't be here.
Mr. Barton. There is nobody in the White House----
Mr. Waxman. I would take back my own time here. The
President said on C-SPAN he wanted to have the negotiations
televised. Well, I thought that was interesting. But he had
also hoped when he invited Republicans to the White House to
talk about health-care reform that they would do something
constructive to be involved in that issue. They weren't helpful
at all. And now we stand with a Republican proposal to pass the
House to repeal the health-care bill--repeal and replace. We
don't even know what their replacement is.
The third point I want to make is, if we have a right to
know what lobbyists or citizens have to say to the White House,
why don't we have a law saying that Members of Congress have to
make that disclosure? I would like to know whether Chairman
Barton, when he was chairman, met with oil company lobbyists,
who they were, public interest lobbyists. If we have a right to
know about people in the executive branch, why don't we have a
right to know about the people here in the legislative branch?
Now, I would like to know how much transparency would
satisfy those who think we ought to have open government.
Because, as I understand it, some of the requests to the
administration for more information would produce around a
million or half a million pages. That is a lot of records.
Mr. Fitton, you have a lawsuit, Judicial Watch, against the
Obama administration. It is my understanding you have sought
release of all visitor records from the first day of the Obama
administration through the date of your FOIA request of August
of 2009.Isn't that correct?
Mr. Fitton. Yes.
Mr. Waxman. OK. From a review of the papers filed in that
litigation, it appears that the number of records you are
seeking is around half a million. That is quite a lot of
records.
Would you agree that public release of at least some of
those records--for instance, records of visits from officials
on covert security missions--could raise national security
concerns?
Mr. Fitton. Maybe, but FOIA allows for withholding of
documents, citing those very concerns.
Mr. Waxman. And, Ms. Weismann, do you agree that at least
some of the visitor log information collected by the Secret
Service presents national security concerns?
Ms. Weismann. Yes, I do.
Mr. Waxman. Mr. Wonderlich, do you agree that sometimes we
have national security concerns involved?
Mr. Wonderlich. Yes.
Mr. Waxman. I think that openness in government is
important, but I don't think this hearing is really about
openness in government. We are hearing complaints from
Republicans that they didn't get the administration to show up
when they wanted them to. Well, it is a two-way street. The
President hoped the Republicans would have worked for the
national interest in trying to work out a health-care bill. The
Republicans just said no. The administration wanted the
Republicans to work on a boost for jobs and the first
legislation to make investments; Republicans said no. The
administration said to the Congress, let's work together on a
bipartisan basis to reform the Wall Street issues that caused
our economy to practically topple over the edge. Republicans
said, no, we are against it.
And now that they are in power in the House, they can call
a hearing and explore issues. And that is right, they can. But
this is not a responsible hearing, when we just have a hearing
complaining that people didn't show up when you didn't give
them enough notice and when they requested that they have
another time to come in.
Mr. Fitton, are you a lawyer?
Mr. Fitton. No.
Mr. Waxman. You are not.
Mr. Wonderlich, are you a lawyer?
Mr. Wonderlich. No.
Mr. Waxman. Ms. Weismann, are you a lawyer?
Ms. Weismann. Yes.
Mr. Waxman. Now, as a lawyer, have you ever had a situation
where the opposing side requested that they have a week or 2
weeks or a month to get their information together? Is that
unreasonable to accommodate them?
Ms. Weismann. Depending on the circumstances, but it
certainly happens all the time in the legal arena.
Mr. Waxman. Well, it happens all the time in the legal
arena, and it only fails to happen in Congress when the party
in power wants to make a big to-do about it. And they don't
have anything else except to try to embarrass an administration
that asks that they have another chance to come in and testify
at a time when they would be available and not required to be
at another hearing testifying.
So, again, this hearing is what it is, and I think it is
pretty clear it is not about open government, it is about
politics.
Mr. Stearns. I thank the gentleman.
Obviously, the White House, if they want to be completely
transparent, can show up in 24 hours.
Mr. Waxman. Point of order, Mr. Chairman.
Mr. Stearns. Sure.
Mr. Waxman. Why is it that you get to make a comment after
we ask our questions?
Mr. Stearns. I will recognize----
Mr. Waxman. We each get 5 minutes.
Mr. Stearns. Yes.
Mr. Waxman. And I think that the regular order should be
Member says what they have to say in 5 minutes, then you go to
the other side of the aisle; not one Member and then the
chairman gets to make a comment, you go to another Member,
chairman makes a comment.
Mr. Stearns. And I recognize your point of order. Thank
you.
We recognize the gentlelady from Tennessee, Ms. Blackburn.
Mrs. Blackburn. Thank you, Mr. Chairman.
And I want to thank our witnesses for being here today.
I think a lot of what we are talking about centers around
the President's statement that he made on day one: that
democracy requires accountability, and accountability requires
transparency.
So as I mentioned in my opening statement, I have spent
some time on this issue with the czars that are out there. And
we all know that the agencies have inspectors general and the
GAO and FOIA to provide accountability for their work.
And I would just like a confirmation from you all, and I
think, Mr. Fitton, I will come to you on this. Isn't it true
that the Senate-confirmed agency heads are subject to greater
transparency and accountability than their nonconfirmed czars
that are shielded by the White House?
Mr. Fitton. Yes.
Mrs. Blackburn. Let's talk about a couple of them. Czars
like climate czar Carol Browner and health-care czar Nancy-Ann
DeParle don't have inspector generals to hold them accountable,
do they?
Mr. Fitton. No, nor are they subject to the Freedom of
Information Act because they are in the White House office.
Mrs. Blackburn. But yet they have had a tremendous impact
on legislation that has come before this committee.
Mr. Fitton. Yes, that is my understanding.
Mrs. Blackburn. And they don't have the GAO audits of their
effectiveness, do they?
Mr. Fitton. I don't know about whether the GAO has purview
over White House officials. Certainly, the GAO can get at them
indirectly through examining HHS's and other relevant agencies'
contacts acts with them.
Mrs. Blackburn. OK. Thank you for that.
Let's talk about Ms. Browner, because last fall it was
reported that Ms. Browner's staff was discovered to have
doctored a Department of Interior report to make it look like a
moratorium on offshore drilling was peer-reviewed and
recommended by a panel of experts. And I have some of the
articles, Politico's article specifically, about that late-
night work that took place.
Manipulating science to achieve political goals needs to be
reined in, and so how can Congress get a better handle on that
type of behavior? What would be your response to this action
that took place by Ms. Browner's staff?
Mr. Fitton. I think a reaction ought to be severe. This is
unconstitutional activity, I believe, by the President's
advisors. The President can get advisors in his White House to
advise him. If they start lording over agency heads and
directing agency activity the way Ms. Browner did with this
report and what I understand the health-care czar did with HHS
and the other agencies, it is unconstitutional for them to be
doing that. And the reaction by Congress to protect its
prerogatives ought to be severe.
I point to Senator Byrd, who warned President Obama about
this. The late Senator warned the President about this, that
the White House was aggregating to itself powers that were in
violation of the Constitution.
Mrs. Blackburn. I thank you for that. And I think that this
shows why we are all so concerned about this issue and why we
feel it is important to bring this issue before the committee.
We have worked on legislation that has required a tremendous
amount of our time, and the reports and information, when we
find out they have been doctored or they have been changed or
maybe it was not as represented to be, it does cause us
concern.
Now, you have asked for information, or Judicial Watch has
asked for information, on these two czars that I have
mentioned.Is that correct?
Mr. Fitton. Yes. We asked for information on every czar
that we could find, actually, but, specifically, these two
czars as well.
Mrs. Blackburn. OK. And what information did you ask for on
those two?
Mr. Fitton. Their duties and responsibilities, their budget
and staffing.
Mrs. Blackburn. And I would assume, just like the requests
that went in from the committee, that you were not able to get
information on their budget, their staff, their salaries?
Mr. Fitton. No.
Mrs. Blackburn. OK. I appreciate that.
All right. Did you ask for these through FOIA?
Mr. Fitton. The White House is not subject to FOIA, so we
were relying on their good graces to turn the documents over.
Mrs. Blackburn. All right. Thank you.
I yield back.
Mr. Stearns. The gentleman from Texas is recognized for 5
minutes.
Mr. Green. Thank you, Mr. Chairman. And I would hope our
Oversight and Investigation Committee, with all of the problems
we have in the Federal Government, would spend time on a lot of
other issues other than this. But since this is the hearing,
then I think I will participate.
Mr. Fitton, I want to talk a bit about the lawsuit your
organization, Judicial Watch, has filed against the Obama
administration. You talked about some of the legal questions in
your testimony, and I want to focus on the practical
implications of that lawsuit.
It is my understanding you have sought release of all
visitor records from the first day of the Obama administration
through the date of your FOIA request, which you just said was
not--FOIA did not cover the administration, through August of
2009. Is that correct?
Mr. Fitton. Yes.
Mr. Green. From a review of the papers filed in that
litigation, it appears that the number of records you are
seeking is around a half a million. That is quite a lot of
records.
Mr. Fitton, would you agree that the public release of at
least some of these records--for instance, records of visits
from officials on covert security missions--could raise
national security concerns?
Mr. Fitton. Yes.
The White House, to be clear, does not want to give us one
document, one visitor log under the Freedom of Information Act.
That is the law that protects and preserves these documents and
requires their disclosure. Not one document of those 500,000,
as released, they don't think should be released under this
law.
The Freedom of Information Act allows government agencies
to withhold records if their disclosure could harm national
security. And that is something that would be appropriate. Most
of the records, the 500,000, are of White House visitors who
are there for tours. Two-thirds of the records that have been
released, according to this report of the Center for Public
Integrity, are of White House visitors. Those numbers can be
whittled down in the course of negotiations.
Mr. Green. OK. So you agree that some of the visitor log
information collected by the Secret Service presents national
security concerns?
Mr. Fitton. Yes. And those can be withheld under FOIA----
Mr. Green. I only have 5 minutes.
Mr. Fitton. Sure, I understand.
Mr. Green. And I also appreciate you--are you a
constitutional lawyer?
Mr. Fitton. I am not a lawyer.
Mr. Green. Oh, oK.
I love it, Mr. Chairman, and I am a lawyer, and I submit
Constitution law is not my specialty. You and I have a right to
have an opinion as American citizens on what is constitutional,
but the folks who actually make that decision under the
Constitution are the Supreme Court.
Mr. Fitton. Right.
Mr. Green. And so, as long as we recognize that my opinion
doesn't matter any more than yours or even a constitutional
lawyer--maybe a constitutional lawyer is a little higher up
than we are.
Mr. Fitton. It is for the courts to decide.
Mr. Green. It is for the nine Supreme Court justicies to
make that decision.
Mr. Wonderlich, do you agree with what Mr. Fitton said?
Mr. Wonderlich. Which part?
Mr. Green. Well, that there are some records that shouldn't
be, the visitor logs by the Secret Service, shouldn't be
released under FOIA?
Mr. Wonderlich. Yes.
Mr. Green. I know that, in September of 2009, President
Obama announced a policy of posting White House visitor logs
online for meetings that occurred after September 15th of 2009.
To implement that policy efficiently, the White House created a
process by which logs which raised national security concerns
to be flagged for review when they were created and, where
necessary, be withheld from disclosure.
For the records that predate September 2009, there is no
way to know whether release of the information could present
national security concerns unless a single record is reviewed
individually.
Mr. Fitton, all of the records for which you are seeking
request predate September 2009, is that correct?
Mr. Fitton. In this lawsuit, yes. I have asked for records
after that and have not gotten any pursuant to FOIA, as the law
requires, either. We haven't sued on that yet.
Mr. Green. OK. So granting your FOIA request will require
national security officials to review all of the approximately
500,000 records to make sure their release would not endanger
the public or otherwise compromise national security interests.
Mr. Fitton. That is what the White House says.
Mr. Green. Uh-huh. Now, it is my understanding that the
White House has made many of its pre-September 2009 records
public. In fact, while these records were not released en masse
on the White House Web site, there is a form that anyone can
use to request release of records, visitor records for
particular individuals or groups, and many people make use of
this feature. The White House told the committee staff about
3,000 pre-September-2009 visitor records were released using
this process.
Mr. Fitton, yes or no, has your organization used this
online tool to request any of the pre-September-2009 records
that are subject to your litigation?
Mr. Fitton. We only can request these records under FOIA.
This database is not relevant to the Freedom of Information
Act.
Mr. Green. OK, so I assume your answer is ``no.'' I find
that interesting----
Mr. Fitton. Congressman, you can't request records through
that system.
Mr. Green. Well, but you can view the records, you can view
them.
Mr. Fitton. Excuse me?
Mr. Green. You can view them. That should satisfy the need
for a request for a FOIA.
Mr. Fitton. The records are required to be released under
the Freedom of Information Act. Releasing 1 percent of the
records in that time period is not complying with the Freedom
of Information Act. If they have questions about whether they
should be exempt from the law, they have to go to Congress to
get exempt from the law, not decide that the law does not apply
to records on its own. That undermines the rule of law and
transparency.
Mr. Green. I am out of time, but can you just briefly tell
us how this administration's--and maybe all our witnesses--
opinion on Freedom of Information requests differ from what
President Bush's administration did?
Mr. Chairman, I think that would be helpful for our whole
committee, if there is a difference between the Obama
administration and the Bush administration.
Mr. Fitton. Administratively, this administration is more
difficult than the Bush administration was. Legally, they are
as bad or worse than the Bush administration. So they are less
transparent as a result.
Ms. Weismann. I would just add----
Mr. Stearns. The gentleman's time has expired.
Mr. Green. Mr. Chairman, may the other witnesses answer?
Mr. Stearns. Oh, sure. All right.
Go ahead, Ms. Weismann.
Ms. Weismann. As an organization that litigated extensively
under the FOIA under the Bush administration and now under the
Obama administration, their legal position is identical--that
is, that they are not subject to FOIA.
However, the practice of the Obama administration differs
radically because they are making the vast majority of these
records available online as a voluntary policy.
Mr. Stearns. The gentleman's time--oh, yes, Mr. Wonderlich?
Mr. Wonderlich. I would defer to my colleague on that
question.
Mr. Green. Thank you, Mr. Chairman.
Mr. Stearns. The gentleman from Texas, Mr. Burgess, is
recognized for 5 minutes.
Mr. Burgess. Thank you, Mr. Chairman.
Well, in light of those last responses to Mr. Green's
question, I am going to read a statement that was said by--and
I will be inclusive here--one of the four of us. OK? So the
three witnesses or me. So let's see who said this.
Quoting here, ``We have an administration that is claiming
a lot of credit for its transparency policies. But on the other
hand, those policies haven't left us with a truly more
transparent government,'' close quote.
Who said that?
Mr. Fitton. I agree with it, but I didn't say it. I don't
know who said that.
Mr. Burgess. I agree with it, but I didn't say it. OK, we
are down to two.
Well, Ms. Weismann, you said that on Fox News not too
terribly long ago, March 16 of 2011.
Ms. Weismann. And I stand by that statement.
Mr. Burgess. Well, look, we played the clips of the
President. I don't recall President Bush, when he was running
in 2000--and I was just a regular guy back then. I don't know
that I was paying strict attention. But I don't recall him ever
standing up at one of the debates with Al Gore and saying, ``I
am going to run the most open and transparent administration
ever. In fact, I will invite all of the energy heads in with me
and we will have it on C-SPAN so you will be able to see it on
television.''
But I do remember President Obama saying that very thing,
and we saw those clips this morning. So it doesn't look like he
has kept his promise in that regard, does it? They may be
legally identical to the Bush administration, but the optic is
it doesn't look like he has kept that promise. Is that an
accurate statement?
Mr. Fitton. In the least.
Mr. Burgess. Ms. Weismann, am I out of line to feel that
way?
Ms. Weismann. I think if you are comparing the openness in
records of the Obama and Bush administrations, there is simply
no comparison. I think that the Bush administration--and many
scholars and other legal experts would agree with this--was the
most secretive administration we have ever experienced. I think
the Obama administration----
Mr. Burgess. Look, every administration----
Ms. Weismann [continuing]. Has taken a lot of steps.
Mr. Burgess [continuing]. Needs to keep secrets, and we saw
that this weekend. And aren't we all grateful that the Obama
administration and leaders in the House and Senate who were
involved in the discussions surrounding the extinction of Osama
bin Laden, aren't we all glad that they were able to keep a
secret? In fact, it is astounding to me that all of the above
were gathered in the basement of the Hilton hotel on Saturday
night and not a word of this leaked. So that is a true
testament to the ability to keep a secret when one is
necessary.
But, look, you have said yourself, there is no difference
from a legal standpoint between the Bush administration and the
Obama administration. In my opinion, the difference is that
President Obama, when he was a candidate running for President,
campaigned on this as a campaign promise, a pact that he made
with the American people--not with the Congress, not with the
Senate, not with the House, not with the Supreme Court. He made
it with the American people, and he has violated it repeatedly.
You all are familiar with my efforts to try to get some of
the information surrounding those secret health-care meetings.
I mean, it is ironic, here we are almost exactly 2 years to the
day with the President coming up with all of the--who did he
have? The American Medical Association, the Hospital
Association, AdvaMed, PhRMA, AHIP, health insurance, and the
Service Employees International Union. He came out and said,
``We have saved $2 trillion.''
Does anyone else remember that? I was startled that there
was $2 trillion in savings that AHIP had been holding back,
that the SEIU had been holding back. Was anyone else struck by
that figure of $2 trillion? Or is Washington just so inured to
figures that that didn't seem like any big deal to anyone else?
Ms. Weismann. Just a point of clarification. My testimony
was that the legal position of the status of the White House
visitor records is the same between the two administrations. I
did not mean to suggest beyond that that they shared the same
legal opinions on other issues.
Mr. Burgess. OK, fair enough.
But does anyone else recall that statement of $2 trillion
being saved out of the health-care industry in this country
secondary to agreements that were struck at the White House?
Does that seem like a big deal to anyone else, or am I just
misplaced on this?
Mr. Fitton. It is a big deal. We have been investigating
those meetings, as well.
Mr. Burgess. And, you know, I had to push this--and, Mr.
Chairman, I will submit for the record a timeline of the
activities that have gone on in this committee in both the last
Congress and this Congress on just trying to get the scantest
amount of information on that.
[The information follows:]
[GRAPHIC] [TIFF OMITTED] 70819.218
[GRAPHIC] [TIFF OMITTED] 70819.219
Mr. Burgess. I mean, here is the ironic--March 15th of
2010, David Cade, counsel, writes to then-Chairman Waxman and
Ranking Member Barton and Congressman Burgess that HHS has no
relevant documents in addition to those that were provided in
January of 2010. And then, on March 10th of this year, Robert
Bauer, counsel to the President, responded to a letter from
Chairman Upton, Stearns, Burgess, and Pitts that says the
request is--that fulfilling the request constitutes a vast and
broad undertaking. Well, a year before, they said there wasn't
anything there, there is nothing to give you. And now it is
vast and broad?
I mean, what are we to believe, when we are told that we
are going to have a transparent administration where all of
these things will be up on C-SPAN, you will be able to see who
is standing with the insurance companies and who is standing
with the people, and nothing--nothing--close to that is what
has happened?
And then, as a consequence, all through this town in 2009,
you heard people say over and over again, look, you are either
at the table or you are on the menu. People were legitimately
afraid of crossing this administration during the run-up to
that health-care bill. I think, especially in light of some of
the things we know about the terrible drafting problems with
that bill, I think it is important that we have that
information.
Thank you, Mr. Chairman, for your indulgence. I will yield
back.
Mr. Stearns. I thank the gentleman.
And the gentleman from Massachusetts, Mr. Markey, is
recognized for 5 minutes.
Mr. Markey. Thank you, Mr. Chairman, very much.
In September of 2009, President Obama announced a new
policy to voluntarily disclose White House visitor records.
These records are routinely posted online, and there are now
more than 1.25 million records posted on the White House Web
site in a searchable format. We have heard today that no such
database existed prior to the Obama administration.
Ms. Weismann, would you agree that this administration's
White House visitor database provides more information about
who is visiting the White House than the Bush administration,
which did not have any database?
Ms. Weismann. Yes, absolutely.
Mr. Markey. Now, on his first day in office, Mr. Obama
announced that Federal agencies would take a new attitude
toward requests for information. When asked for information,
all agencies should adopt a presumption in favor of disclosure.
No longer could information be withheld because, as his memo
said, quote, ``public officials might be embarrassed by
disclosure because errors and failures might be revealed or
because of speculative or abstract fears.'' In other words,
when in doubt, disclose. The Bush administration adhered to a
different motto, which was, ``When in question, conceal.''
So the presumption for information requests was not to
disclose information, and the Department of Justice was there
to rubber-stamp the agency's denials of information requests.
Under the Bush administration, agencies were instructed to keep
a lid on all records unless there was no legal basis for doing
so or such action would hurt the ability of other agencies to
protect their important records.
I will certainly acknowledge that Federal agencies have, in
some cases, been slower than I would have hoped they would be
to adopt this new culture of transparency. But even with some
Federal agencies being slower to change than others, Ms.
Weismann, would you agree that the Obama administration's
directive, that the default on information requests should be
disclosure, not concealment, is an improvement?
Ms. Weismann. Absolutely. The policy is very much of an
improvement.
Mr. Markey. OK, thank you.
I thank the chairman very much.
Mr. Stearns. I thank the gentleman, and----
Ms. DeGette. Will the gentleman yield?
Mr. Markey. I would be glad to yield.
Ms. DeGette. I just want to follow up on that question, Ms.
Weismann.
Mr. Stearns. I think, in all deference, the gentleman
yielded back.
Ms. DeGette. Oh.
Mr. Stearns. So we are going to go to Mr. Gingrey from
Georgia.
Mr. Gingrey. Well, Mr. Chairman, thank you. Thank you for
holding the hearing today on transparency at the White House.
My time is limited, of course, and I would like to ask a
series of serious questions about the litigation that resulted
in the release of the visitors log from the administration.
And I will start with you, Ms. Weismann. Yes or no, is it
correct that CREW sought the release of Obama administration
records regarding meetings with health-care and coal executives
in May of 2009?
Ms. Weismann. Yes.
Mr. Gingrey. And this is yes or no, as well. Didn't CREW
have to file additional lawsuits in June and July of 2009
because the administration refused to release those records?
Ms. Weismann. Yes.
Mr. Gingrey. And once again yes or no, wasn't MSNBC.com's
request for logs denied, as well?
Ms. Weismann. That is my recollection, that it was, yes.
Mr. Gingrey. Thank you.
Isn't it true that, in the Washington Post article--that is
item No. 2 in your document binder--you are quoted as saying--
and you have said part of the quote several times in this
hearing, but the whole quote is this: ``The Obama
administration has now taken exactly the same position as the
Bush administration.'' You further state, ``I don't see how you
can keep people from knowing who visits the White House and
adhere to the policy of openness and transparency.''
Isn't that the full quote?
Ms. Weismann. Yes, it is.
Mr. Gingrey. You know, again, why we are here, we are
talking about a pledge that the President made during his
campaign, a pledge to have a policy that he would adhere to
during his administration to more openness and transparency,
not really unlike the pledge that he made that, 1 year from my
inauguration, we will close Guantanamo Bay; not unlike a pledge
that he made, again, during his campaign that there would be no
legal action initiated against our intelligence agents for the
methods that they used in obtaining actionable intelligence,
which led, incidentally, to the finding and finally destruction
of that monster, Osama bin Laden--these kind of pledges that
the President made.
So when you make a statement that this is no different than
the previous administration, you may be indeed correct, but the
President pledged to make things different and more transparent
and more open, a better way. And this hearing really, as we
hear from the other witnesses, is pretty much proof positive
that he has failed miserably in that campaign pledge.
Let me ask you one more. What was the Bush administration
policy regarding the status of these same logs that you were
referring to? What was their policy?
Ms. Weismann. Their policy was that these are Presidential
records, not records of the Secret Service, and, therefore, not
subject to the Freedom of Information Act.
Mr. Gingrey. Didn't the Obama administration continue for 8
months to appeal the district court decision that the logs were
subject to Freedom of Information?
Ms. Weismann. Yes, it did.
Mr. Gingrey. Thank you.
Mr. Fitton, my next line of questions is for you, and this
is yes or no, as well.
Hasn't Judicial Watch had to sue the Obama administration
again because they are still not releasing the visitor log
records you had previously requested?
Mr. Fitton. We have not sued again, although they have
responded negatively to subsequent visitor log requests.
Mr. Gingrey. Are they making the same arguments the Bush
administration did?
Mr. Fitton. The Bush administration changed its argument.
We had gotten FOIA records--we had used Freedom of Information
to obtain visitor logs pursuant to FOIA. Then CREW started
asking for, I guess, too many documents, and the Bush
administration didn't like that, so they decided they weren't
subject to FOIA anymore.
Mr. Gingrey. Is it correct that the White House discloses
visitor logs 90 to 120 days after they have been processed?
Mr. Fitton. That is what they say.
Mr. Gingrey. If someone requested the logs through FOIA,
how long would the administration have to respond to the FOIA
request by law?
Mr. Fitton. Twenty days.
Mr. Gingrey. Do you think that the President has unfairly
taken credit, President Obama, for releasing these visitor
logs, when, in fact, greater and faster disclosure is required
by law?
Mr. Fitton. Yes. His policy is contrary to Federal law.
Mr. Gingrey. Mr. Wonderlich, my last question is for you
and, again, yes or no. Do you agree with Mr. Fitton and think
the administration is taking too much credit for release of the
visitor logs?
Mr. Wonderlich. Yes.
Mr. Gingrey. Thank you.
Mr. Chairman, I yield back.
Mr. Stearns. The gentleman's time expired.
And the gentleman from Louisiana, Mr. Scalise, is
recognized for 5 minutes.
Mr. Scalise. Thank you, Mr. Chairman. I appreciate you
having this hearing.
I wish we would have the opportunity to question someone
from the White House. They could have sent anybody to answer I
think what are very important questions about openness and
transparency, which, again, as has been pointed out by many
Members, was a hallmark of President Obama's campaign for
presidency. And, you know, it is kind of ironic, in a hearing
about openness and transparency, the administration refused to
be open and transparent enough to even come and answer what are
many important questions that still have not been answered.
And maybe, Mr. Chairman, next time, instead of holding the
hearing here, we can go to the Caribou coffee shop next-door to
the White House where it seems like you can find more
administration officials holding hearings or meetings about who
knows what because we can't get those logs.
I want to start off on the question that my colleague from
Tennessee brought up regarding czars. This has been an issue
that I have had real serious concerns about since the President
seemed to have a proliferation of czars appointed to carry out
duties that have the same functions and, in many cases, even
more powers than Cabinet secretaries.
And, again, as I have stated many times, I completely
support the President's ability, any President's ability, to
organize their administration, but the Constitution lays out a
process that requires Senate confirmation for people of that
level of power. And there are reasons for that because of the
scrutiny that goes along with it, because of the transparency
that goes along with it.
Ms. Weismann, I want to ask you, last year CREW had sent a
letter to Attorney General Eric Holder asking him to initiate
an investigation into pay-to-play allegations involving the
then-czar for urban affairs, Adolfo Carrion. Can you explain to
me what it was your organization requested to have an
investigation into?
Ms. Weismann. I am not the best person from my office to
speak to that. I was not involved in that particular matter.
Mr. Scalise. Are you aware that CREW did send that letter
to Attorney General Holder to ask for an investigation into
that czar?
Ms. Weismann. Yes, I am. But I am not the only person on
our staff that is involved in those kinds of matters.
Mr. Scalise. Sure. It is my understanding that the basis of
the letter that your organization sent was to look into
allegations that, while serving as a Bronx borough president,
Mr. Carrion received a number of campaign contributions from
developers in close proximity to when he approved zoning
changes or committed money to projects sponsored by those very
developers.
Now, the question I will ask you, since you might not be as
familiar with the request for that investigation, which I think
would have been healthy to produce, but do you think that that
sort of allegation would have come up in the transparentness of
a Senate confirmation process?
Ms. Weismann. I can't speculate as to that.
Mr. Scalise. I will ask the other panelists, then. I will
first go to Mr. Wonderlich.
Mr. Wonderlich. I am not sure whether that would have come
up in a Senate confirmation hearing.
Mr. Scalise. Mr. Fitton?
Mr. Fitton. Whether it would have come up is an open
question. But the confirmation process is the method by which
you uncover information like that about high-level government
officials.
Mr. Scalise. And, clearly, you know, I think when you look
at--and these are allegations that have been floating around.
It is not something that just one person alleged. These were
very serious allegations, enough to where organizations like
CREW asked the Attorney General to hold an investigation. You
wouldn't have needed to even make that request if we had that
transparent process of Senate confirmation.
And yet, you look--and, you know, when we talked about the
health-care bill, one of the--I passed legislation that
ultimately got included in the continuing resolution to
eliminate four of these czars, including the urban affairs
position, including the health-care czar, including the climate
czar and the car czar.
Now, I found it shocking that the President, when he signed
that CR that he, himself, negotiated, in his signing statement
that he said he wouldn't do, he said he wasn't going to comply
with that section of the law, that he was going to still
reserve the right to appoint czars, even though he actually
negotiated that agreement. He agreed to eliminate those four
czars; he signed the law. This is a law. This isn't an
Executive order; this is an actual law that Congress passed. He
signed the law, and then he said, ``Oh, and, by the way, I am
not going to comply with this part of the law.''
Now, the day he tries to circumvent the law and maybe
appoint somebody into those positions that we eliminated by
law, that he signed that law into, then clearly we will have a
constitutional challenge because the President absolutely has
to comply with the laws that he signs. He is not exempt from
these laws.
I want to ask you, Mr. Fitton--you had talked about the
visitor logs that you have been trying to get from the White
House. Can you tell me how many visitor logs the White House
has refused to disclose?
Mr. Fitton. Oh, it is approximately--I think it would be a
half a million, most of which would be White House visitors,
tourists.
Mr. Scalise. Half a million logs that they have refused to
disclose. And then you said that they granted 30 to the
President or whoever else. Again, we can't ask anyone from the
White House because they have refused to come here. But they
have granted themselves 32 different waivers to their own
ethics rules. Now, this isn't a law that we passed; this is an
Executive order the President signed.
Mr. Fitton. Right.
Mr. Scalise. But even with that Executive order the
President signed, he has, in essence, allowed 32 different
waivers to those ethics laws. Kind of an odd concept, that you
would brag about an ethics law and then quietly go and exempt
yourself from it 32 times and who knows how many more times to
come. Is that correct?
Mr. Fitton. That is correct. The rules he put out on his
first day of his administration have an escape clause or a
backdoor way of avoiding it you could drive a truck through.
Mr. Scalise. Well, thank you.
I see my time has expired. You know, Mr. Chairman, again, I
wish we would have the opportunity to ask the White House these
questions. These are not trivial questions. These are
importance issues that we still don't know the answer to. Many
organizations that are respected, transparency organizations,
have had to go to court and still haven't even been able to get
a resolution to this. So I appreciate you having this hearing.
And I yield back.
Mr. Stearns. The gentleman's time has expired.
The gentleman from Colorado, Mr. Gardner, is recognized for
5 minutes.
Mr. Gardner. Thank you, Mr. Chairman.
And, Mr. Fitton, I wanted to follow up with you on a couple
of questions. You have answered some of these. I just want to
clarify a little bit more of the information.
What types of information is your organization, Judicial
Watch, currently trying to obtain from this administration, the
type of information?
Mr. Fitton. Any issue of public interest, we probably have
a Freedom of Information Act request on. We have been very
interested in the bailouts; obviously, the Obamacare; you know,
EPA, climategate; the czars; immigration enforcement or the
lack thereof.
We ask about anything of note to try to get more
information, because you can't rely on what you read in the
press. You have to get the documents for yourselves, in our
view.
Mr. Gardner. Thank you. And you are all of these subject to
FOIA?
Mr. Fitton. Yes. We normally ask for these documents under
the Freedom of Information Act.
Mr. Gardner. OK. And in a memo to agency heads, President
Obama said, and I quote, ``The Government should not keep
information confidential merely because public officials might
be embarrassed by disclosure or because errors and failures
might be revealed.'' Do you think the agencies have lived up to
the President's goal?
Mr. Fitton. Absolutely not.
Mr. Gardner. In that same memo to agency heads, the
President said, ``All agencies should adopt a presumption in
favor of disclosure.'' Have the agencies that you have worked
with adopted this presumption?
Mr. Fitton. No.
Mr. Gardner. Did the President put any teeth behind his
instruction that all agencies should adopt a presumption in
favor of disclosure?
Mr. Fitton. No. In fact, he appointed an Attorney General
that will defend all those unnecessary, improper disclosures to
the Hilton court, just like the Bush administration did.
Mr. Gardner. Is there any mechanism in place to measure
agency performance and to make sure that they are complying or
applying the presumption?
Mr. Fitton. There are metrics that are used by the Obama
administration and outside evaluators, but they really don't go
to the issues we are talking about. It is one thing to put a
lot of documents on the Internet, as we have been talking
about. It is another thing to refuse to disclose information
about matters of public controversy that would be politically
inconvenient or scandalous for an administration. On those
types of requests, they are as bad, if not worse, than the Bush
administration.
Mr. Gardner. And then just in some of the background for
this hearing, it talks about studies by George Washington
University and the Knight Foundation showing that barely half
of the 90 agencies reviewed have taken any steps at all to
fulfill FOIA policies set by President Obama. It talks a little
bit about Associated Press studies. It talks about the 35
largest agencies have seen an increase of nearly 41,000 FOIA
requests from the previous year, but the government responded
to nearly 12,400 fewer requests, despite the promise to be the
most transparent and open government in----
Mr. Fitton. I mean, this is an issue of crisis proportions.
The government is doing a trillion--what is it?--a trillion
extra dollars' worth of work a year, and the disclosure and the
public accountability has not kept up with that.
The bailouts, the disclosures are terrible. Fannie and
Freddie, $450 billion in moneys going toward them, potentially.
The administration has taken a legal position on its own, not
following a Bush administration policy but on its own, that not
one document would be subject to FOIA in Freddie and Fannie,
despite all the money we are spending there.
Obamacare, they are terrible. Department of Justice, they
are terrible. They are doing so much more and giving us so much
less.
Mr. Gardner. The other two witnesses would like a chance to
speak, perhaps, to this question. Do you believe that the
administration is keeping up with the requests for FOIA at an
adequate level?
Ms. Weismann. No, I do not. And, as some of you have quoted
back to me some of my statements in the past, that is exactly
what I am referring to. We see a large disconnect,
unfortunately, between the policies the President put in place
and the actual agency practices.
And, like Mr. Fitton and his organization, I am sad to say
that we have also experienced the same aggressive nondisclosure
approach by the Department of Justice as we did in prior
administrations. It is clear that reversing a culture of
secrecy is very, very difficult, and we are by far not there
yet.
Mr. Gardner. So you would characterize this
administration's approach as aggressive nondisclosure?
Ms. Weismann. I don't know if those are the words I would
use. I would say the policies of disclosure are in place but
the actual practices do not comply with those policies.
Mr. Wonderlich. My organization doesn't do nearly the FOIA
requesting that my colleagues do, but we do have a pending FOIA
request that we submitted after doing an extensive analysis of
the data quality on USAspending.gov, where we found over $1.3
trillion of missing or broken spending reporting from that Web
site.
We submitted a FOIA request to the Office of Management and
Budget to see how each agency is tracking the spending of
contracts and the data quality, and that has been more than 6
months that they have basically stonewalled and not gotten back
to us. And it is still a standing FOIA request from us.
Mr. Gardner. Just if I could follow up real quickly. I am
out of time here. The $1.3 trillion in missing spending that
they have said that they would disclose but they have not?
Mr. Wonderlich. So, the Web site USAspending.gov that is
supposed to disclose grants and contracts information has
fundamental problems with the data quality. And we did an
extensive analysis, which you can see on clearspending.org's
Web site we set up to share it, to follow up and apply that
analysis to contract information. We submitted a FOIA request
that we are still waiting for a response from.
Mr. Gardner. Based on the lack of FOIA response, do you
believe that omission, the $1.3 trillion omission, is that
intentional?
Mr. Wonderlich. No. That is a systemic problem.
Mr. Burgess. [Presiding.] The gentleman's time has expired.
The gentleman from Virginia, Mr. Griffith.
Mr. Griffith. Thank you, Mr. Chairman.
Let me make a couple of comments first in regard to some of
the things that were said here previously. My concern--Mr.
Waxman is right that sometimes you get a continuance. But in
this type of a setting, with as many executive-branch people
and employees and so forth who are out there, I am beginning to
see a pattern in my short period of time here, and it is very
concerning, that has the administration not sending people to
hearings to answer questions of Congress.
And it is of great concern, particularly when some of the
testimony we have heard indicates that, without legal
authority, the various agencies of this administration are
creating laws out of whole cloth, creating new rules because
they think the old rules are absurd, et cetera. And so I am
very concerned about that.
And Mr. Green and Mr. Fitton had a conversation where they
talked about the opinions that various people have, but only
the Supreme Court can interpret the Constitution and make
rulings on that. In the end, I do find it very interesting
that, however, the administration, in regard to the Defense of
Marriage Act, made a decision on its own. And so, not only is
the administration taking on legislative authority, it is also
taking on the authority that Mr. Green quite rightly pointed
out belongs to the Supreme Court.
And while we may have our opinions, you know, the President
has now given an order not to enforce the law. So the executive
branch is, by its own admissions--and Mr. Green pointed that
out indirectly earlier--is not enforcing the law and,
therefore, not doing its job.
And on top of that then, it comes to my attention through
staff and so forth that, about 3 weeks ago, the White House
secretly circulated an Executive order on political spending
disclosure, and the only way the American people heard about it
was from a leak.
Mr. Fitton, are you familiar with this Executive order
which would require Government contractors to disclose
political contributions and expenditures made in the 2 years
prior to their bids?
Mr. Fitton. Yes. I reviewed the purported draft.
Mr. Griffith. And isn't it true that one of the substantial
reasons, maybe, for having such a requirement is to create a
political litmus test or an enemies and friends list for people
who wish to do business with the Federal Government?
Mr. Fitton. Or a fundraising list.
Mr. Griffith. And wouldn't it also be of concern--or, it is
of concern to me; I want to know if it is of concern to you--
that, based on the President's prior statements in regard to
another context, that Republicans would have to take a back
seat in the bus, that if you were a contractor doing business
with the Federal Government who might have a political leaning
toward the Republican side, that they would want to use that as
an attempt to say that, if you are going to play ball with us,
you either have to give us or give our friends money or you
have to stop giving money to the people you philosophically
agree with?
Mr. Fitton. Yes. I think the memorandum, if implemented,
would codify corruption into the Federal contracting process.
Mr. Griffith. And if the President wants to issue an
Executive order taking an action which previously was
considered and rejected by Congress--and, frankly, I think
would be terrible policy--doesn't that call for a higher level
of openness and public feedback than a regular Executive order
and that this should be out there in full disclosure and
everybody who has advised him on it ought to be known, and, in
fact, there ought to be a great deal of hearing on this, should
there not?
Mr. Fitton. I think this needs to be thoroughly debated and
vetted by our elected officials, both, obviously, the present
administration and here in Congress. It not only impacts the
Federal contracting process, but I also think it impacts the
First Amendment rights of third-party, innocent groups.
Mr. Griffith. And so you think it could lead, even if
unintended, it could lead to retaliation or harassment of
companies or third-party groups or other political groups?
Mr. Fitton. Well, frankly, I think that is the intent of
the disclosure requirement.
Mr. Griffith. Uh-huh. I mean, I can't disagree with you. I
don't think there is any other way you can interpret it. And so
you believe it would chill political speech amongst all of the
contractors?
Mr. Fitton. Or guarantee a certain political speech, as far
as contributions to the party in power or the party running the
administration making the contracting decision.
Mr. Griffith. Right.
Mr. Fitton. It wouldn't surprise me if a Republican
administration left this in if President Obama--because the
Republican Party would benefit because they would be doling out
the contracts. It is just a terrible precedent.
Mr. Griffith. It is bad precedent and bad government. And
did you find it curious that unions were left out of the
Executive order?
Mr. Fitton. I found it not surprising.
Mr. Griffith. Did you find it not surprising but troubling?
Mr. Fitton. Of course it is troubling. Unions are well-
known to be supportive of the President's political campaigns.
And if they are not subject to the same types of disclosures as
those perceived to be opposed to his political campaigns, it is
troubling.
Mr. Griffith. Yes. I would have to agree with that and
appreciate your testimony.
Ms. Weismann, I have to tell you, I think you did a nice
job today and that you were very fair in your comments. I might
not have completely agreed with you on some of the things
philosophically, but I thought that you did a very nice job.
And I appreciate all three of you being here today.
Thank you very much. I yield back my time, Mr. Chairman.
Mr. Stearns. [Presiding.] The gentleman yields back his
time.
I think we will do a second round here, if the witnesses
will be patient with us for a little longer.
Mr. Fitton. Sure.
Mr. Stearns. Mr. Fitton, I would like to explore that, in
your opening statement, you talked about the idea of--I think
you indicated there were 32 waivers that were given by the
administration. In fact, these waivers were basically a
decision that was either made by the counsel for the
administration or the President himself.
In light of the fact that the administration, the President
said, quote, ``Lobbyists will not work in my White House,'' is
what his statement was. And on one of his first days in office,
he signed an Executive order banning lobbyists from serving in
his administration.
Based upon this Executive order, did the President violate
his Executive order, Mr. Fitton, in your opinion?
Mr. Fitton. Well, you know, the President's position is,
``I will not hire lobbyists unless I want to hire lobbyists. I
will not allow these lobbyists to work on work that they
previously worked on in their private capacity unless I want
them to do that.''
Sothe President wants to have his cake and eat it, too, on
these issues. He holds two positions at once. It is incredible.
Mr. Stearns. Yes. The Washington Examiner actually, last
year, did a story on this, in which they said, ``More than 40
ex-lobbyists now populate top jobs in the Obama administration,
including three Cabinet secretaries, director of central
intelligence, and many senior White House officials.''
When you go through this list, these are people working in
the White House: Patton Boggs we all know is a lobbyist firm in
town. Covington & Burling is a law firm, but it is also a
lobbyist. Cassidy & Associates is clearly a lobbyist. Akin
Gump; Center for American Progress. So I have this list here--
Hogan & Hartson. I have the names of the individuals who are
from those lobbying firms.
Mr. Fitton. Right.
Mr. Stearns. So what does a so-called lobbyist ban do? And
how hard is it to get a waiver from these policies? I think the
question we are asking--the President had an Executive order,
and then he issued waivers, over 40 waivers. I mean, he had
waivers on health care. He is up to almost 1,200 waivers on
health care so people don't have to comply to. So now the
President is issuing waivers in his administration against his
signed Executive order banning.
So, do you have any understanding how you get a waiver? How
hard is it to get a waiver?
Mr. Fitton. Well, the ethics pledge allows for a waiver--
has a waiver escape clause.
Mr. Stearns. So there is a component in the Executive
order?
Mr. Fitton. Right.
Mr. Stearns. And do you know the wording of that?
Mr. Fitton. It is available on the White House Web site. I
don't have it in front of me.
Mr. Stearns. Ms. Weismann, do you know what the wording is
for this waiver? Is it easy to get a waiver, in your opinion?
Ms. Weismann. I don't know what the exact wording is. I
don't have it in front of me either.
I think that there still have been relatively limited
number of waivers. But let me be clear, I think it is
probably----
Mr. Stearns. I think 40 is a pretty significant number if
the President makes a pledge, ``No one will work in my White
House who is a lobbyist.''
Ms. Weismann. Well, CREW's policy has been all along we
didn't necessarily support the ban on lobbying. We are all
about disclosure and don't feel that lobbying, itself, should
be banned, but, rather, there should be disclosure for
everyone, whether it is Congress or the White House.
Mr. Stearns. Well, in all deference to you, the President
found it was pretty important for him to make that strong
statement, that no lobbyist will be working in my
administration.
Mr. Wonderlich, do you have any idea how you get a waiver?
Or is there is a standard policy or process that you would
follow to get a waiver?
Mr. Wonderlich. I don't know exactly how it works, but I
would assume it previously would have gone through the ethics
czar, the special counsel for ethics and government reform,
who--that position no longer exists. But up until when he left,
I would assume it would have gone through him.
Mr. Stearns. So the administrative position that would make
this jurisdiction decision is no longer there?
Mr. Wonderlich. Presumably. It has probably now fallen
under the White House counsel, Bob Bauer.
Mr. Stearns. So the White House counsel, at this point, is
making the waivers based upon some policy which we don't really
know.
You know, not to reiterate the point again, but I remember
in the State of the Union the President said, quote, ``We have
excluded lobbyists from policymaking jobs,'' end quote. Yet, as
I have pointed out, all these lobbyists are now working in the
administration. So it is difficult to understand how the
President can actually say lobbyists will not be working in my
administration when it appears there are over 40 that are doing
that. And more than a dozen of those hired have required the
White House to issue a waiver from the ethics pledge he asked
senior officials to sign.
Is that correct, Mr. Fitton?
Mr. Fitton. It looks like there are many of these ethics
waivers. To be clear, these waivers are available via our Web
site. You can't find them readily on the White House's since
they take them down, I believe, as employees may leave. But the
records are available through our Web site, and the link is
referenced in my written testimony.
Mr. Stearns. Well, I would just say that the President's
statements are pretty bold and they are pretty dramatic and
they are pretty clear. Yet he is using this counsel at the
White House to give waivers for precisely the people he said
would not be in his administration. And you can parse words by
saying, ``We are giving waivers under certain situations,'' but
a lobbyist is a lobbyist.
So I think the President has to be held accountable for his
statement and the fact that he has a large number of lobbyists,
over 40, that are working.
Yes?
Mr. Fitton. Well, I told Norm Eisen at that meeting about
the White House visitor logs that, you know, like Ms. Weismann,
I thought the lobbyist ban was overblown and silly. But he
promised, and he needs to keep his promises.
And if he didn't want to keep his promises and he thought
maybe the idea was not good and that the campaign promise ought
to be rescinded in the interest of good government and getting
the best people in, he should say that. But don't say you are
not hiring lobbyists and then do it contemporaneously.
Mr. Stearns. Well, and he goes so far in the State of the
Union to say, quote, ``We have excluded lobbyists from
policymaking jobs.'' I mean, that is rhetoric, but it is also
not true.
Mr. Fitton. Not true.
Mr. Stearns. My time has expired.
The gentlelady from Colorado.
Ms. DeGette. Thank you, Mr. Chairman.
Now that we have had a big session trashing the President
and things he said and allegedly did, let's really talk about
what this hearing is about and some of the evidence.
Now, Mr. Fitton, are there 40 waivers or 32 waivers right
now? Because we had seen in your testimony that you had said
there are 32 waivers.
Mr. Fitton. There are 32 ethics waivers, as best as we can
tell. I would----
Ms. DeGette. OK. So, hang on. So there are 32 ethics
waivers. Are all of those waivers to lobbyists, yes or no?
Mr. Fitton. I do not know whether they are all to
lobbyists.
Ms. DeGette. OK. Well, I actually have the list. And I am
sure it is on your Web site, so you could get it, too.
Mr. Fitton. I have it here, so I can refer to it.
Ms. DeGette. What Norm Eisen said--he is the White House
ethics advisor--``Few of the waivers were to registered
lobbyists.'' Is that correct?
Mr. Fitton. I don't dispute that.
Ms. DeGette. OK. So your answer would be ``yes,'' right?
Mr. Fitton. I don't----
Ms. DeGette. Yes or no?
Mr. Fitton. I don't have any information to dispute that.
Ms. DeGette. OK, Mr. Wonderlich, do you know how many of
the waivers are to registered lobbyists?
Mr. Wonderlich. No.
Ms. DeGette. Do you know, Ms. Weismann?
Ms. Weismann. No, I do not.
Ms. DeGette. OK. Now, look, I am not saying that you should
have registered lobbyists, but every so often it might be
appropriate, if disclosed. For example, William Lynn, who is
the Deputy Secretary of Defense, once worked at a defense
contractor, and he got a waiver. Naomi Walker, who is the
Associate Deputy Secretary of Labor, worked at the AFL-CIO.
Now, they both did get waivers, but they were specifically not
allowed to work on issues that would be of conflict. For
example, Naomi Walker was not allowed to work on matters
relating to regulation or contracts with unions.
Now, Ms. Weismann, I want to ask you a question. I think
the President was saying he doesn't, in general, want to have
lobbyists working there, but if you are going to have some
lobbyists working there, what you want is, A, disclosure and,
B, people not working if they have the conflicts of interest,
in other words, being taken out of those conflicts. Is that
correct?
Ms. Weismann. Yes, it is.
Ms. DeGette. And in your oversight experience, I wonder if
you know how many former lobbyists are working in the Obama
administration versus, say, in the Bush administration? Do you
know that information?
Ms. Weismann. No, I don't.
Ms. DeGette. OK.
Ms. Weismann. I know that it is very common in Washington
for people to cross both lines.
Ms. DeGette. Sure. Sure.
Now, the only other question I wanted to ask you, following
up on what Mr. Markey was asking and also what Mr. Gardener, my
colleague from Colorado, was asking you, because this is
something that disturbs me, is you had said that the good news
is that the Obama administration has put together these
aggressive FOIA rules, much more aggressive than previous
administrations. Right?
Ms. Weismann. Yes.
Ms. DeGette. But then you said that we are having
difficulty getting them implemented in the agencies.Is that
correct?
Ms. Weismann. Yes, it is.
Ms. DeGette. I am wondering if you have some sense of why
that is?
Ms. Weismann. We do, actually. CREW conducted a survey of
hundreds of FOIA professionals last year, and the results were,
I think, very enlightening. They don't have the resources they
need. They don't have the training they need. And I do think
that we are talking about truly a culture change, and that just
takes time.
Ms. DeGette. And a lot of the information officers at these
agencies are career people who have been there for a long time
and are used to doing things a different way, right?
Ms. Weismann. That is certainly true.
Ms. DeGette. So one thing I think we could--on this
committee, we might disagree on both sides of the aisle about,
you know, is President Obama pure or not pure or is he keeping
his promises or whatever. But when you cut through all of that
partisan bickering, all of us would agree that we want to have
open disclosure.
And so I am wondering, for all three of you, if you have an
idea for this committee about how we can help the agencies
comply much more directly and clearly with these Obama
administration FOIA guidelines.
Ms. Weismann. Well, I think there is certainly legislation
that could enhance the transparency. Our larger concern as an
oversight or ethics watchdog kind of group is with the
continued reliance on exemption 5 which allows the agencies to
protect deliberative process material. We think there should be
built into the FOIA statute a balancing test so that we get to
argue that the public interest outweighs that, and that is just
an example. But definitely there is room for legislation that I
think would enhance transparency and just as importantly would
ensure that it is not the political football that it has become
over the last I don't know how many administrations.
Ms. DeGette. Mr. Wonderlich, would you have anything to add
to that?
Mr. Wonderlich. Yes, I would say I would love to see a far
more engaged Congress working on individual information policy
questions, that are just punted to the agencies and then
ignored. And then I would also like to see individual
committees thinking about the laws that form their jurisdiction
and whether or not their disclosure requirements within those
laws that have atrophied over time and have disclosures that
have been important.
Ms. DeGette. And Mr. Fitton?
Mr. Fitton. I don't disagree with anything my colleague
said. One shortcut may be to ask the Department of Justice why
it defends what we believe to be improper disclosures the way
they do as aggressively as they do. If the lawyers for the
Justice Department were to tell the agencies that they
represent in the FOIA litigation that we are not defending this
anymore, you need to start disclosing that, that might be one
way of getting the politicals at these agencies to start paying
attention to what they are withholding and why.
Ms. DeGette. Thank you. Thank all of you for coming. I
thought this was informative, and I was tempted to call both of
you young man. But Ms. Weismann, as I have noted in my many
years of Congress, the more often people call me young woman,
the happier I get, the older I get.
Ms. Weismann. You can call me young woman.
Ms. DeGette. Yes.
Mr. Stearns. Let me ask the ranking member, we are now in a
second round of questioning, do you want to go on the protocol
that Mr. Weiner would be recognized for his first round or
would you like to have the opportunity he would contribute as
his second round?
Ms. DeGette. He can contribute in any way he----
Mr. Stearns. Mr. Weiner, would you like to contribute as
just a second round of negotiation?
Mr. Weiner. I feel ill-equipped. I only have one round in
me. So whatever you want to call it.
Mr. Stearns. Under the procedure if you don't mind we are
going to go to a Republican and come back to you as your second
round.
Mr. Weiner. Certainly.
Mr. Stearns. Mr. Griffith from Virginia is recognized for 5
minutes.
Mr. Griffith. Mr. Chairman, I am going to yield back my
time. I am learning lots listening here. I am of course very
concerned about some of the things I heard, but I yield back.
Mr. Stearns. The gentleman from New York, Mr. Weiner, is
recognized for 5 minutes.
Mr. Weiner. Well, thank you very much, Mr. Chairman.
Forgive me, I was watching the hearing with great interest. I
just want to say at the outset I agree with you, Mr. Chairman.
It is irresponsible, wrong and a dereliction for the
administration not to send a witness. I think that whether we
agree with what they are going to say, whether it is a fair
hearing, whether the questions are fair or not, I think that
the administration has to send--particularly since the
administration is being invited to answer these questions in
front of one legitimate committee, ours, and one that just
investigates stuff. So I think this would have been a
constructive thing for them to come.
I have to say that the President was right in that video
that was played saying that it is going to be negotiated in
public. We held, what, I think 2,000 hours of hearings and
markup in this committee in front of cameras rolling the entire
time. We were on television all of us stating our positions
back and forth, hundreds of times in public forums, town hall
meetings left and right. This was probably the most open
process, I mean it was gut wrenchingly open. Sixteen months it
was like--I don't know what childbirth is like it was pretty
darn close. We gave birth to a 2,000-page bill so much so my
Republican colleagues were complaining they have to read the
bloody thing. There are like, my God, there are so many words
here. What are we going to do with them all? Now the complaint
is how you should have let us in on a little bit more. Well, I
have to tell you something that I for one believe that we want
to have sunlight, we want to have transparency, and there was
an enormous amount of it in this process, so much so that more
of the complaints nationally and in this body were how long the
process was going, not that there was insufficient information.
And let's remember something here. The real conversations
that are protected from the public are the conversations
between the health insurance lobbyists and their wholly owned
subsidiary, the Republican Party. Like how come we are not
asking for any of those conversations? When we on the Democrat
Party in this bill force health insurance companies to hold
down the amount that they take for profits and overhead and
pass along more in health care, and the Republicans were
raising money from those health insurance companies and voted
unilaterally against it, I want to see some of those
conversations. Where are those fund-raisers and those steak
dinners and those cigar bars? I want to be there and have some
transparency about that.
I mean look, the fact of the matter is I want to see when
it was that my Republican friends got together in a room and
said, you know what, we don't want to add 10 years to Medicare,
we don't want to do that. We are going to go out and vote as a
group to make sure that they don't get a single vote for that.
Where did that conversation happen? I want to see some sunlight
on that conversation.
And where was it that the conversation happened that the
Republicans got together and said, we don't want to close the
donut hole for seniors so they have to continue to pay money
out-of-pocket for drugs. Where was that meeting held? I want
some investigation to find out where that decision was made
that seniors would have to pay more money. I want to find out
where it was written that my Republican friends would come up
with this idea about lying what was in the bill, like death
panels and everything else. Those conversations I would like to
see because those we had no sunlight at all on those things.
We had hours and hours and hours. This room was full, was
full of people coming here and not explaining that, you know
what, I happen to be here to fight for the insurance industry
as some of my Republican friends seem to be doing. Those are
the conversations I care about.
We had town hall meetings, we had hearings, we had markups.
Look, I will stipulate to the idea that we want to have as much
transparency as possible. But I will not stipulate to the idea
that the President didn't live up to his responsibility by
having the process out in the open. It was so out in the open,
it was like--I mean I was exhausted. When I started this
process I was 6' 4'' and 290 pounds. This is all that is left
of me.
So I think we have to remember this is an important debate
to be having, how you have transparency and make sure that the
American people know what is going on. But the American people
saw what was going on. They saw basically the Democratic Party,
the leadership of the President trying to solve a national
crisis that we are spending billions and billions and billions
of dollars, because we have people going to hospital emergency
rooms with no insurance and passing along the bill to the rest
of us. That is what this debate was about.
And by the way, it was also expressed in many, many forms
during the campaign. When people voted, they said we want you
to solve health care. And when we lose jobs, when localities
are struggling, when people can't afford their health care,
when all of us are paying for those that are not and we have
hundreds of hours on a 2,000-page bill and then long debates on
these things clearly into the night. I don't think the American
people are saying, ooh, tell me more. They are saying, you know
what, that was a long, healthy process. And what they do know
is that on one side were people who were fighting every day to
improve health care and make it more affordable and the other
side was a wholly owned subsidiary of the health insurance
industry called the Grand Old Party.
And I yield back my time.
Mr. Stearns. I thank the gentleman. I remember when you
used to say you were 6' 6'' and 300 pounds, so it is now 6'
4'', 290. Just as a chairman's prerogative, he is welcome to
answer my question, what would you say, and I heard what you
said about Republicans and wanting to read the bill, what would
you say to former Speaker Pelosi who said we will have to pass
the bill so that you can see what is in it.
Mr. Weiner. Will the gentleman yield?
Mr. Stearns. I will yield.
Mr. Weiner. That is actually not what she said. You know,
what she said was that when he she was asked a question why do
the American people not support the bill that she was saying
was so great. And she said very often the bills have to become
passed and to become part of the law for people to be able to
separate the wheat from the chaff. Do you have any idea how
many lies we were told about this bill during the process, Mr.
Chairman? And what she said turned out not to be entirely true
because--not you personally--people kept lying about it even
after it was law. So now you are taking an urban myth that she
said people have to read the bill to learn what is in the bill
as if the idea that she didn't know. We knew what was in the
bill but the American people had to hack through stuff that was
being made up about the bill every single day. And she had
confidence that sooner or later when the bill was passed and
became law, people saw they are getting help with prescription
drugs, with preventive care without a co-payment, that people
once they saw that all the lies would fade, unfortunately she
turned out to be wrong.
Mr. Stearns. Thank you. The gentleman from Texas is
recognized for 5 minutes.
Mr. Burgess. Thank you, Mr. Chairman. I appreciate the
recognition. You know, we did have a lot of hearings in the
spring of 2009. We had hearings that were sort of single
focused. We were always having hearings about how to expand
Medicaid to more people in this country. We never really had
any hearings about how expensive that would or would not be,
but we missed the big story.
One of the things we were tasked with by the American
people in the summer of 2009, we had those very big town halls,
two things they asked us for. Number one, don't mess up the
system, it is working arguably well for 65 percent of us. And
number two, if you are going to do it at all, could you please
help us with cost?
What did we do? We created a system now that it requires
1,200 waivers in which to work. So I don't think you can argue
that we didn't mess up what was already working. And what did
we do about cost? Well, costs are going up. But was there any
place in the country where we could have looked and perhaps
asked a few questions about how costs in some environments are
not just being held level but in fact coming down?
What about Governor Daniels in Indiana? What about his
Healthy Indiana Plan? What about a plan that for his State
employees has saved 11 percent over 2 years' time? Why did we
not bring Governor Daniels to the very witness table, chain him
to the chair until he spilled the beans about how he was able
to hold down costs. And how did he hold down costs? He put
people in charge of their own money. Something magic happens
when people spend their own money for health care as it turns
out, even if it wasn't their own money in the first place.
I could go on and on about the number of amendments offered
in this committee. I had my own table for amendments. I got
five accepted by the committee before the bill H.R. 3200 left
this committee room and went over to the floor of the House.
But what happened on the way to the floor of the House? It got
tied up in the Speaker's Office. Was that on C-SPAN? Did anyone
get to participate in that besides the White House, Rahm
Emanuel, Speaker Pelosi? I would submit that probably even our
good friend Anthony Weiner was not called into those
discussions.
What happened then? We got a 2,000-page bill, people were
mad about a 1,000-page bill, they were really mad about a
2,000-page bill. And no one had any earthly idea it was written
in secret in the Speaker's Office with heavy input from the
White House.
But that wasn't the end of the story. We passed that thing
in middle of the night on the floor of the House early in
November, dead on arrival. You can't find that legislation no
matter if you look high or low, you cannot find it because
Harry Reid had a secret bill in his desk drawer. I suspect his
left desk drawer. And this was H.R. 3590. Now 3590 had already
been passed by the House, but it wasn't a health care bill, it
was a housing bill. Harry Reid took a bill that we had passed,
a housing bill, stripped all the health care language out of
it, stripped all the housing language out of it and began to
put health care language in. Is this an open transparent
process the way this occurred? Harry Reid went to every Senator
on his side of the aisle in the Senate and said, what will it
take to get your vote? When he got that he put it in 359O, they
passed it on Christmas Eve right before a snowstorm so they
could all go home. And in truth they thought they would come
back to a conference committee and get to smooth out some of
the rough edges that were in that bill.
But a funny thing happened on the way to the conference
committee. The State of Massachusetts had an election for a
Senator. Senator Brown was elected in Senator Kennedy's old
seat. No longer did Harry Reid have 60 votes. And he came back
and said, Nancy, this is the best I can do. You have to take
this thing and pass it on the floor of the House. I remember
what Congressman Weiner's colleagues said then, oh, no, you
don't, we are not voting for that thing, it has got an
independent payment advisory board in it.
Talk about sunlight. Did we ever have a hearing on the
independent payment advisory board in this committee? Did we
ever have a chance to mark that up, and vote on it, and amend
it? I don't think so. That was a product of the Senate. The
public option that Mr. Weiner liked so much was completely
excluded by the Senate bill, except the fact that it probably
still is in there, in the national exchanges.
This is the problem. When you do things in secret, when you
do things behind closed doors and don't have them vetted by the
appropriate committees of jurisdiction, you could go on and on
about the drafting errors in this bill, but that is the reason
it has happened because regular order was completely subverted
and there was no transparency.
Now, Mr. Fitton, let me just ask you because you and I have
dealt with aspects of health care law with regard to the
transparency issue. I have had trouble getting information out
of the White House. You have too, haven't you?
Mr. Fitton. That is right. We have asked specifically--the
White House isn't subject to FOIA. So no administration is
going to happily comply with requests for information from a
party like Judicial Watch, but HHS is. As I said in my
testimony, they have yet to produce one document to us under
the Freedom of Information Act about these health care waivers.
Now if you are a proponent of the ObamaCare law, you might
have an interest in knowing why it is being waived all over the
place. And obviously as an opponent there would be an interest
as well. But the administration does not want to disclose
pursuant to the law anything about this thus far and it is
ongoing and people are confused about whether the law is being
enforced arbitrarily and capriciously, yet the administration
is completely silent for practical purposes in terms of
disclosing it to the American people, to which they are
accountable under the law.
Mr. Burgess. Well, let me just point out, too, that the
American Health Insurance was in those secret meetings at the
White House. I never had any meetings with the AHIP, but the
White House did. Why weren't those disclosed, why weren't those
on the record meetings?
We have heard Anthony Weiner talk about--Congressman Weiner
talk about why that was important to have those meetings on the
record. Why not have those very meetings down at the White
House on the record as well?
Mr. Fitton. Well, the President promised those types of
meetings would be on C-SPAN. And to the Congressman's earlier
point, I think the Freedom of Information Act should be
modified to apply to Congress in a way that protects your
constitutional prerogatives but provides more disclosure about
some of the activities that you are engaged in. The President
made the decision to have these decisions made behind closed
doors contrary to campaign promises. There is no doubt about
it.
Mr. Burgess. Thank you, I yield back.
Mr. Stearns. The gentleman yields back, time has expired. I
appreciate the witnesses' forbearance here as we moved a little
bit off center here on talking about things. I say to my good
friend, Mr. Weiner, former Speaker Pelosi's statement being
urban myth, that actually if he wants to I can show him the
video of it after the hearing. I would be glad to call it up, I
think we have it right in the back here, if he would like to
look at it.
But I would like to close by just asking unanimous consent
of the ranking member to put this article which he alluded to
or talked about from the Washington Examiner in the record.
Without objection, so ordered.
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Mr. Stearns. And again I want to thanks the witnesses for
their participation, and the subcommittee is adjourned.
[Whereupon, at 12:54 p.m., the subcommittee was adjourned.]