[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]




                               BEFORE THE


                                 OF THE

                        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



                          FRED UPTON, Michigan

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
  Vice Chair                         GENE GREEN, Texas
JOHN SULLIVAN, Oklahoma              DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania             LOIS CAPPS, California
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
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
DAVID B. McKINLEY, West Virginia


              Subcommittee on Oversight and Investigations

                         CLIFF STEARNS, Florida
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)

                             C O N T E N T S

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


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



                          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 


    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 
    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.


    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 
    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 
    Ms. DeGette. Mr. Chairman, if we can have just a few more 
minutes to review it, we only received it 5 minutes before the 
    Mr. Stearns. Absolutely, absolutely. And we have 5 minutes 
on our side; and to use 2 minutes, Dr. Burgess is recognized 
for 2 minutes.


    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 
    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.


    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.


    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 
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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.

                      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 
    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 
    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.


    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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. 
    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. 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Thank you, Mr. Chairman, for your indulgence. I will yield 
    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 
    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. 
    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 
    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 
    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 
    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, 
    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 
    Mr. Gardner. Thank you. And you are all of these subject to 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    Mr. Weiner. Certainly.
    Mr. Stearns. Mr. Griffith from Virginia is recognized for 5 
    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 
    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 
    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.]