[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
H.R. 1: STRENGTHENING ETHICS
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HEARING
BEFORE THE
COMMITTEE ON
OVERSIGHT AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 6, 2019
__________
Serial No. 116-02
__________
Printed for the use of the Committee on Oversight and Reform
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available on: http://www.govinfo.gov
http://www.oversight.house.gov or
http://www.docs.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
35-793 PDF WASHINGTON : 2019
COMMITTEE ON OVERSIGHT AND REFORM
ELIJAH E. CUMMINGS, Maryland, Chairman
Carolyn B. Maloney, New York Jim Jordan, Ohio, Ranking Minority
Eleanor Holmes Norton, District of Member
Columbia Justin Amash, Michigan
Wm. Lacy Clay, Missouri Paul A. Gosar, Arizona
Stephen F. Lynch, Massachusetts Virginia Foxx, North Carolina
Jim Cooper, Tennessee Thomas Massie, Kentucky
Gerald E. Connolly, Virginia Mark Meadows, North Carolina
Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
Jamie Raskin, Maryland Glenn Grothman, Wisconsin
Harley Rouda, California James Comer, Kentucky
Katie Hill, California Michael Cloud, Texas
Debbie Wasserman Schultz, Florida Bob Gibbs, Ohio
John P. Sarbanes, Maryland Ralph Norman, South Carolina
Peter Welch, Vermont Clay Higgins, Louisiana
Jackie Speier, California Chip Roy, Texas
Robin L. Kelly, Illinois Carol D. Miller, West Virginia
Mark DeSaulnier, California Mark E. Green, Tennessee
Brenda L. Lawrence, Michigan Kelly Armstrong, North Dakota
Stacey E. Plaskett, Virgin Islands W. Gregory Steube, Florida
Ro Khanna, California
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan
David Rapallo, Staff Director
Krista Boyd, General Counsel
Elisa LaNier, Chief Clerk and Director of Operations
Christopher Hixon, Minority Staff Director
Contact Number: 202-225-5051
C O N T E N T S
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Page
Hearing held on February 6, 2019................................. 1
Witnesses
Mr. Scott Amey, General Counsel, Project on Government Oversight
Oral Statement............................................... 8
Written Statement............................................ 11
Mrs. Karen Hobert Flynn, President, Common Cause
Oral Statement............................................... 37
Written Statement............................................ 39
Mr. Rudy Mehrbani, Spitzer Fellow and Senior Counsel, Brennan
Center for Justice
Oral Statement............................................... 48
Written Statement............................................ 50
Mr. Walter Shaub, Jr., Senior Advisor, Citizens for
Responsibility and Ethics in Washington
Oral Statement............................................... 125
Written Statement............................................ 127
Mr. Bradley A. Smith, Chairman, Institute for Free Speech
Oral Statement............................................... 139
Written Statement............................................ 141
Index of Inserts
Page
Statement of the Indivisible Project......................... 233
Statement for the Record In Support of H.R.1, the For the
People Act of 2019......................................... 235
Letter from Don W. Fox....................................... 240
H.R. 1: STRENGTHENING ETHICS
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Tuesday, February 6, 2019
House of Representatives
Committee on Oversight and Reform
Washington, D.C.
The committee met, pursuant to notice, at 10:04 a.m., in
room 2154, Rayburn House Office Building, Hon. Elijah Cummings
(chairman of the committee) presiding.
Present: Representatives Cummings, Maloney, Norton, Clay,
Lynch, Cooper, Connolly, Krishnamoorthi, Raskin, Rouda, Hill,
Wasserman Schultz, Sarbanes, Welch, Speier, Kelly, DeSaulnier,
Plaskett, Khanna, Ocasio-Cortez, Pressley, Tlaib, Jordan,
Amash, Gosar, Massie, Meadows, Hice, Grothman, Comer, Cloud,
Gibbs, Higgins, Norman, Roy, Miller, Green, and Armstrong.
Chairman Cummings. The committee will come to order.
Without objection, the chair is authorized to declare a recess
at any time. I will now recognize myself for an opening
Statement.
Today, we are holding a hearing on H.R. 1, the For the
People Act. H.R. 1, introduced by my distinguished colleague,
Congressman John Sarbanes of Maryland, a senior member of our
committee. We thank Congressman Sarbanes for his--not only for
his vision, but for his tenacity, and for putting his blood,
his sweat, his tears into this over several years. He has
compiled one of the boldest reform packages to be considered in
the history of this body.
This sweeping legislation will cleanup corruption in
government, fight secret money in politics, and make it easier
for American citizens across this great country to vote. I
believe that we should be doing everything in our power to make
it easier for eligible American citizens to exercise their
constitutional right to vote, not making it harder. We should
be making it more convenient, not less. We should be
encouraging more people to cast their votes, not fewer. We
should be promoting early voting, absentee voting, voting by
mail, and other ways to help citizens cast their ballots, not
rolling back these very important programs.
Unfortunately, some people disagree, including most
Republicans. They think we should make it harder to vote. They
think we should make it more difficult by cutting back on early
voting, eliminating polling places, and taking other steps to
reduce the number of people who do vote. Especially troubling,
in some cases, they have engaged in illegal efforts to suppress
the vote that target minority communities.
For example, North Carolina drew legislative lines, and the
4th District Circuit Court of Appeals found that regardingthe
African Americans, and I quote, ``the lines were drawn with
almost surgical precision,'' that is, to suppress the vote.
Georgia kept eligible individuals off the rolls and caused
widespread problems with wait times and absentee ballots,
particularly in areas with significant minority populations.
Kansas moved to the outskirts of town, the one and only
polling place for 27,000 residents of Dodge City, most of whom
were minorities. There's something wrong with that picture.
H.R. 1 would address many of these problems. The bill would
institute procedures to automatically register eligible voters
and put in place protections to keep them on the correct voting
rolls. It would provide for expanded early voting and absentee
voting and give additional funding to States to maintain enough
polling sites so everyone can easily cast their ballot.
Senate majority leader Mitch McConnell, has described H.R.
1 as, and I quote, ``a power grab by Democrats.'' He's right
about one thing, it is a power grab, but it's not by Democrats,
it is by American citizens who voted for reform in this last
election, and sent the clear message that they want to exercise
their constitutional right to vote without interference.
Today, our hearing will focus on the part of H.R. 1 that is
within our jurisdiction, Title VIII, which puts in place strong
new reforms for the executive branch. For example, Title VIII
includes a bill that I introduced, called the executive branch
Ethics Reform Act. It would ban senior officials from
accepting, quote, ``golden parachute,'' unquote, payments from
private sector employers in exchange for their government
service. This would have prevented Gary Cohn from receiving
more than $100 million in accelerated payments from Goldman
Sachs, while leading the Trump administration's efforts to
slash corporate taxes.
Title VIII also includes another bill I introduced, the
Transition Team Ethics Improvement Act, with Senator Carper and
Senator Warren. This legislation would require transition teams
to have ethics plans in place, and make those plans publicly
available. Title VIII also would prohibit senior Federal
employees from working on matters that affect the financial
interest of their former employers or prospective employers.
They could obtain waivers for this requirement, but those
waivers would have to be made public.
Title VIII also would make clear that Congress expects the
President to divest his business holdings, just as every single
President since Jimmy Carter has done, and place them in an
independent and truly blind trust. Both Democratic and
Republican ethics experts warned President Trump to do this
years ago, but he refused. They warned that every decision he
made could be questioned. The American people would rightly
wonder whether he was serving the Nation's interest, or his own
financial interests. Unfortunately, that is exactly what has
happened over the past two years.
The American people gave this Congress and this committee a
mandate to restore our democracy and cleanup our government.
They want greater transparency. They want greater
accountability in government. H.R. 1 makes good on that
promise. It is a broad and brave step toward restoring a
government that works for the people.
Now, it gives me great honor to recognize the author of the
bill for two minutes, Mr. Sarbanes.
Mr. Sarbanes. Thank you very much, Mr. Chairman. I
appreciate your having this hearing on H.R. 1. I also want to
salute some of the new members on the dais here, because they
came with this message of reform pinned to their chest as a
class. Americans from across the political spectrum want a
democracy that works for them, a democracy where big money
doesn't dominate the political debate, where access to the
ballot box is ensured for all citizens; and where public
servants work for the public interest.
Like any system, our republic requires regular maintenance,
without it, the gears grind down, the operating systems fail,
and the people's democratic will is ultimately compromised.
This is what has happened to our democratic institutions over
the past few decades. We have failed to beat back the new and
inventive ways that big money has found to corrupt our
politics. We have failed to modernize our election system, and
we have failed to implement meaningful ethics rules.
No wonder the public's faith in elected representatives is
flagging, why confidence in our democratic institutions is near
historic lows, and why cynicism is so high. H.R. 1, the For the
People Act, is about giving Americans their republic back...by
fighting back against big money and politics, ensuring all
Americans can vote, and ending partisan gerrymandering, and
enacting tough new anti-corruption measures.
Today's hearing, Mr. Chairman, will be an opportunity to
examine the imperative for, and the design of, anti-corruption
measures that are included in H.R. 1. I very much look forward
to that discussion.
Mr. Chairman, H.R. 1 will give Americans their power back
and our democracy: the power of the ballot box; the power of
political voice; and the power of accountable representative
democracy. Put plainly, these reforms are not partisan, they
are patriotic. We can and must do better to work together to
repair our democratic institutions. Many of the provisions in
here actually incorporate bills that have had bipartisan
support in years past.
I hope my colleagues on the other side of the dais will
join us in the effort to strengthen our democracy. Thank you
Mr. Chairman, I yield back.
Chairman Cummings. I yield to the distinguished member, Mr.
Lynch, one minute.
Mr. Lynch. Thank you very much, Mr. Chairman. My
legislation that is incorporated in this bill, my bill, H.R.
391, is the White House Ethics Transparency Act which would
simply require the Trump administration and future
administrations to automatically disclose ethics waivers that
they have issued to executive branch officials. These waivers
allow former lobbyists, industry attorneys and consultants, who
previously worked for the private sector and present a
significant conflict of interest with their positions in the
executive branch, to, nevertheless, participate in matters in
which their prior employers, or clients, have a stake. Pursuant
to the bill, disclosures must be submitted to the independent
Office of Government Ethics within 30 days and be publicly
posted on the White House and OGE websites.
Mr. Shaub is well-aware of this, one of our witnesses.
Early on, we had--the White House just refused to say whether
and when they had given waivers to the various lobbyists to go
to work in his administration. So the inclusion of this section
of the bill will prevent that from happening in the future.
So, with that, I yield back and I thank you for the time.
Chairman Cummings. I yield the final two minutes to Mr.
Raskin of Maryland.
Mr. Raskin. Mr. Chairman, thank you. With your leadership,
with the robust new majority in the House of Representatives,
it's a new day in Washington. A great Republican President,
Abraham Lincoln, spoke of government of the people, by the
people, and for the people, and that's always been the
tantalizing dream of America. It is our role as Congress to
guarantee that we are a government of the people.
But today, the executive branch is drowning in big money
corruption, self-dealing, and lawlessness. They said they were
going to drain the swamp, Mr. Chairman. They moved into the
swamp, they built a hotel on it, and started renting out rooms
to foreign princes and kings and governments. It is our job to
restore government by the people in America, which is why I'm
thrilled to introduce the executive branch Comprehensive
Enforcement Act with Senator Blumenthal on the Senate side. It
will give subpoena power to the Office of Government Ethics. It
will allow formal proceedings to take place there; it makes
clear that it extends to all White House personnel, as well as
the executive branch agencies; it authorizes the Office of
Government Ethics to order corrective actions, like
divestiture, blind trusts and recusal; and impose appropriate
administrative penalties where members of the executive branch
are trampling our laws.
It protects the independence of the Office of Government
Ethics by providing that the director can be removed only for
cause. So it strengthens the independence of the Office of
Government Ethics to make sure that we can ferret out the
corruption, which is now pervasive throughout the executive
branch of government in the Trump administration.
I yield back to you, Mr. Chairman.
Chairman Cummings. Thank you very much. I now yield to the
distinguished gentleman from Ohio, the ranking member of our
full committee, Mr. Jordan.
Mr. Jordan. Thank you, Mr. Chairman. I want to thank our
witnesses as well for being here. Normally, when you start a
new Congress, the majority gives the designation of H.R. 1 to
its key priority. In the last Congress, the H.R. 1 was the most
significant tax reform, tax cut package in a generation,
returned millions of the dollars to Americans, simplified our
Tax Code, and was one of the key reasons, I think, we've seen 5
million new jobs added to our economy in the last couple of
years. That bill, the Tax Cuts and Job Act, was bold,
realistic, and it was signed into law just over a year ago.
I think it has also helped create the lowest unemployment
in 50 years, an economy that is moving in exactly the direction
we want. This Congress, the Democrats' H.R. 1, is the so-called
For the People Act. A more accurate title would be ``For the
people who want Democrats to win elections from now on.'' The
bill includes a laundry list of tired proposals designed to
benefit the majority by tilting the playing field in their
favor. It's not a stretch to label many of these proposals
radical. You can laugh, but it's true.
H.R. 1 would steer potentially billions of dollars to
political allies in the name of campaign finance empowerment,
restrict Americans' right to free speech, and exact political
retribution on the President of the United States.
Unfortunately, this isn't all that surprising. This is just the
latest in a series of attacks by the Democrats to stifle the
free exchange of ideas.
In 2013, we learned that the IRS targeted conservatives for
their political beliefs during the 2012 election cycle.
Systematically, for a sustained period of time, they went after
people for their conservative beliefs, plan in place, targeted
people, they did it. The gross abuse of power would have
continued if not for the efforts of this committee.
In 2014, the Obama Administration doubled down and
attempted to use the IRS rulemaking process to gut the ability
of social welfare organizations to participate in public
debate. Congress has so far prevented this regulation from
going into effect, but H.R. 1 would change that.
Furthermore, this bill would roll back another critical
victory for privacy and free speech secured just last summer.
Following efforts by this committee and others, the IRS changed
its policy as it relates to Schedule B information. Schedule B
contains personal information like names, addresses, and the
amounts donated to nonprofit entities. Even though this
information is supposed to remain private under current law,
States and Federal Government have leaked these personal
details in the past. In changing its policy, the IRS noted that
there had been at least 14 breaches resulting in the
unauthorized disclosure of Schedule B information just since
2010. The result was everyday Americans receiving death
threats, and mail containing white powder, all because--all
because someone disagreed with what they believe, and who they
gave their hard-earned money to.
The reason that the protection of Schedule B information is
important has nothing to do with the vast conspiracies on the
right or the left, the so-called dark money issue; rather, it
dates back to the Supreme Court's 1958 decision, critical
decision, the NAACP v. Alabama, which formally recognized the
freedom of association and prevented the NAACP from being
compelled to turn over information about its members.
Look, I haven't even gotten to all the other problems with
this bill. I mean, this bill's mandatory early--I mean, talk
about violation of the Tenth Amendment in our Federal systems.
Mandatory early voting, mandatory voting by mail, felons can
vote. How about public financing of campaigns? The taxpayers
have to pay for the politicians' campaigns. Think about this,
taxpayers have to pay for the same politicians who created the
swamp, who are in the swamp, so that they can get reelected.
This is what this legislation does.
There's much that can be done to improve the functioning of
transparency and effectiveness of the Federal Government.
However, this 571-page bill reads more like a wish list for the
Democratic Party than an honest attempt at reform. I fear that
this legislation is a sign our friends in the majority want to
play games, engage in political theater to start this Congress,
rather than use this time to work constructively to find
solutions for hardworking Americans that sent us here.
Mr. Chairman, I would like to yield--I think we have a few
more minutes left. I want to first yield to the gentleman, if I
could, from Tennessee, Mr. Green, for two minutes.
Mr. Green. Thank you, Mr. Chairman and ranking member. I am
outraged out at House Resolution 1, which really should be
called the Fill the Swamp Act. It seems every year that passes
more and more power is shifted away from the people and into
the hands of wealthy elites in Washington. These politicians
and bureaucrats can't help themselves from micromanaging more
and more of our everyday lives, from roads and bridges,
firearms, relationships with our doctors, even our toilets.
These, freedom-and federalism-hating politicians can't seem to
help themselves.
And now--now they want to decide how we can run our
elections in Tennessee. You want to tell Tennessee to enact
same-day voter registration with no time for verification? Do
you want to tell Tennessee we can't require IDs to be shown at
the polls, increasing the likelihood of voter fraud? You want
to tell Tennessee that some unaccountable commission gets to
draw our districts? You want to tell Tennessee it has to
subsidize far left-leaning candidates in other States with our
taxpayer dollars? How dare you. How dare you tell Tennessee
what we can do with our elections.
This bill is wrong. It is a power grab. Politicians--
politicians that want to give the Federal Government more
power. Does the majority party care about voter fraud? Well,
then, let's allow States to have voter identification laws. Do
the Democrats suddenly care by foreign interference in our
elections? Well, then, why are they on allowing illegal
immigrants to vote? The hypocrisy is mind-boggling. The fact
remains that there is no constitutional authority for the
Federal Government to come down and seize control of elections
in Tennessee.
The Constitution creates a Federalist system with power
dispersed amongst the people. I will fight to ensure it always
does. I will keep my oath to uphold the Constitution and my
promise to Tennesseeans to drain the swamp. Thank you, I yield
back.
Mr. Jordan. Mr. Chairman, I would like to recognize the
gentleman from Texas for two minutes.
Mr. Roy. Thank you to the distinguished ranking member. I'd
like to co-sponsor the remarks from my friend from Tennessee. I
wholeheartedly endorse all that he just said, as well as what
Mr. Jordan just said.
One question that I would be asking as we look into all of
this is, why are we so divided? Why are we so divided as a
Nation? I would suggest to you, in significant part, is because
we try to govern from Washington 320, 330 million people with
solutions here from the swamp in direct contradiction to the
very republic our Founders gave us, looking ahead at knowing
what it would look like if we tried to do that. We are a
republic. We are a republic for a reason. We have a structure
of government for a reason.
That structure of government serves to preserve our
inalienable God-given rights. That structure of government has
served well to do those things. That structure of government
recognizes the importance of States and the decisionmaking
process across the vast majority of the issues we're supposed
to deal with. When we take our eye off the ball of our core
constitutional function, we don't do those functions well. We
end up with a $1 trillion deficit this year piling on top of
$22 trillion of national debt. And, yes, both parties are a
part of that problem.
We end up immersed in foreign wars that continue, as the
President pointed out last night. We end up with spiraling
healthcare costs because a President immersed us into
healthcare from Washington instead of allowing the people in
markets and States to function. And now we want to extend into
every aspect of every issue of voting, issues that are supposed
to be left to the States so that the people in the States can
decide who they want to send to Washington, whether they are
Senators, or whether they're in the Congress.
We would undermine the very structure and the core of this
government further if we pursue this path down H.R. 1. Thank
you.
Mr. Jordan. Mr. Chairman, for our remaining two minutes, I
would like to recognize the gentleman from Georgia.
Mr. Hice. I thank the ranking member. I join with my
colleagues in just being extremely alarmed by H.R. 1. It is
virtually 600 pages, and almost every page has issues of great
concerns. Just one small part of that, the chairman mentioned a
while ago, the automatic voter registration. It forces States
to automatically register people, which may sound good on the
surface, but what this will do is open the floodgates for
fraudulent voting by illegal individuals in this country, and
here is how. Here is what happens.
These illegals who come into this country use government
services and programs, and under H.R. 1, the information
collected by these services and programs would automatically be
transferred to election officials for registration. There's
only one safeguard in H.R. 1, and that is, for the illegal
alien to publicly declare that they are here illegally, and
they are not eligible to vote. How can we really expect that to
happen? It's not going to happen for them to draw attention to
themselves, and identify themselves as being here illegally,
and therefore, ineligible to vote.
So simultaneously when an illegal alien fails to decline--
fails to recognize it, they are here illegally and they're
ineligible to vote, despite the ineligibility, they cannot be
prosecuted. So this bill is just going to make it extremely
difficult to maintain accurate voting records. It's going to
open the floodgate for fraud. So what we basically have here is
a proposal that will lead to more illegal aliens registering to
vote, making it virtually impossible to prosecute them for
doing so, and making it difficult for States to clean up their
voter lists. In the process, what that does to the American
citizen, the voter, is it waters down the power of their vote
by allowing illegals to do so. It makes those who are eligible,
their vote, to have less impact. So I'm very concerned. I thank
the gentleman, and I yield back.
Mr. Jordan. Thank you, Mr. Chairman.
Chairman Cummings. Thank you. I want to thank all of our
members for your Statements. Now, all members will have 10
legislative days in which to submit opening Statements for the
record.
Ladies and gentlemen, today we welcome five distinguished
witnesses to our committee: Mr. Walter Staub is the former
director of the Office of Government Ethics, and now serves as
a senior advisor for Citizens for Responsibility and Ethics in
Washington.
Ms. Karen Hobert Flynn is the president of Common Cause, a
nonpartisan grassroots organization dedicated to upholding the
core values of American democracy.
Mr. Rudy Mehrbani is the former director of the Office of
Presidential Personnel, and now serves as a senior counsel at
the Brennan Center for Justice.
Mr. Scott Amey is the general counsel for the Project on
Government Oversight.
Finally, Mr. Bradley Smith, is the chairman of the
Institute for Free Speech.
Pursuant to committee rules, all witnesses who appear
before our committee must do so under oath. I now ask each of
you to stand and raise your right hand to take the oath.
Do you solemnly swear that the testimony you're about to
give will be the truth, the whole truth, and nothing but the
truth, so help you God? Everybody has now answered yes, and let
the record reflect that.
I will now recognize each witness to present their
testimony. I want to remind the witnesses that we have your
written testimony before us, so you don't have to read it all,
we have it. And I ask you to do me a favor, since we have five
witnesses and we have a lot of members wanting to ask
questions, that you obey the lights. You'll get a warning
light, and then when it says red, I would appreciate it if you
would let us--that you would stop and let us move on to the
next witness.
So we're going with Mr. Staub first--Mr. Amey.
STATEMENT OF SCOTT AMEY, GENERAL COUNSEL, PROJECT ON GOVERNMENT
OVERSIGHT
Mr. Amey. Thank you. I want to thank Chairman Cummings,
Ranking Member Jordan, and the committee for asking the Project
on Government Oversight, POGO, to testify about executive
branch ethics.
I am Scott Amey, POGO's general counsel. POGO is a
nonpartisan, independent watchdog that investigates and exposes
waste, corruption, and abuse of power. H.R. 1, which POGO
supports, is an opportunity to make a good--make good on the
bipartisan work that this committee has performed and to reform
the ethics system to meet old and emerging challenges.
We support stronger laws to slow the revolving door,
improve the Office of Government Ethics, expand ethics
restrictions to senior level officials. Title VIII and H.R. 1
is a step forward in improving consistency in enforcement, but
more importantly, to reduce improper influence over government
decisions, missions, programs, and spending that are often
contrary to the public's interest.
Groups at this table have assembled for over a decade to
correct problems creating by the revolving door in cozy
relationships that result in an unlevel playing field. POGO
published reports on the revolving door in 2004, 2005, and one
just last year. The 2018 report showed that lobbying was the
occupation of choice when officials left government service. A
job that relies less on management skills and more on your
connections back inside of the government.
Despite the focus on the revolving door coming and going
from the Department of Defense, the problems exist
governmentwide, and concerns exist about having a personal or
private interest, being lenient toward or favoring past or
future employers, and gaining an unfair competitive advantage,
all of which are the detriment to the public.
H.R. 1 would close the gaps in ethics and conflict-of-
interest standards, especially the provisions in Title VIII.
POGO particularly supports the provisions in Title VIII related
to making the Office of Government Ethics more independent,
slowing program and procurement officials from heading to
companies they worked with or oversaw while in government
service, codifying the Presidential ethics pledges that have
come out since 1993, prohibiting a bonus for accepting a
government position. This really came to light during the Obama
Administration when Wall Street executives revolved into
government, expanding cooling off periods when coming and
leaving the government, and increasing transparency. With the
limited time, I will briefly highlight the top three.
First, the Office of Government Ethics should become an
independent agency with new authorities to ensure consistent
enforcement of ethics laws governmentwide. H.R. 1 would provide
the OGE director, when appropriate, approval over resolutions,
and any recusals, exemptions, or waivers from ethics rules;
increase transparency; give OGE improved investigative power;
and grant OGE the authority to issue administrative and legal
remedies when the ethics violation is found.
We support the provisions to add for-cause removal for the
OGE director. For-cause removal will preserve the agency's
independence, and help with continuity after turnovers in
between administrations. We have heard stories of pressure
coming from the top on the Office of Government Ethics, as well
as agency ethics officials, and that must end.
Second, amending the Procurement Integrity Act is
essential. We need to strike the provision in the law allowing
former program and procurement officials to work for companies
they contracted with or oversaw, so long as they go to a
different part of the company. We can't risk allowing officials
to leverage their relationship with the company for future
employment, calling into question the decisions that they made
while they were in government. Additionally, those officials
should not be allowed to access their former colleagues, which
can create an unfair competitive advantage.
Darleen Druyun, a senior Air Force acquisition official,
left government and took a position with Boeing's missile
division. Prior to leaving government service, she played a
role in the award of a $20 billion contract to Boeing for
refueling tankers. In her plea agreement, she Stated that she
agreed to a higher price, even though she believed it was not
appropriate, as a parting gift to Boeing. Her cozy relationship
also included helping her daughter keep a job with the Boeing
company. The existing laws allowed Darleen Druyun to accept a
job with Boeing. Druyun eventually pled guilty to a separate
ethics violation and served nine months in prison. These
violations were not exposed by ethics officials or IGs. It was
Senator McCain who found them while investigating the tanker
deal, and he became concerned with the blatant revolving door
concerns.
Third, H.R. 1 will codify the ethics pledge process that
has been ordered by Presidents since 1993. POGO supports making
the pledge law, because otherwise, ethics orders only exist at
the whim of each President. Making the pledge law would add
continuity within the ethics community and prevent the pledge
from being revoked on the President's last day in office, as
was the case with President Clinton.
In 1965, President Lyndon B. Johnson issued an executive
order, stating in part, ``Every citizen is entitled to complete
confidence in the integrity of his or her government.''
President Johnson's order is a foundation for our ethics system
today. Our support for Title VIII of H.R. 1 and the
improvements that I have detailed for you today are both
realistic and necessary to prevent conflicts of interest.
H.R. 1 is a step forward in reducing improper influence
over our government and the bad deals that harm the public.
Thank you for inviting me to testify today. I look forward
to answering the questions from the members of the committee
and working with the entire committee to further explore how
Federal ethics and conflict of interest systems can be
improved. Thank you.
[Prepared Statement of Mr. Amey follows:]
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Chairman Cummings. Thank you very much.
Ms. Hobert Flynn.
STATEMENT OF KAREN HOBERT FLYNN, PRESIDENT, COMMON CAUSE
Mrs. Hobert Flynn. Thank you, Chairman Cummings, Ranking
Member Jordan, and members of the committee, for holding this
critically important hearing. I'd also like to thank
Congressman Sarbanes for his leadership championing the For the
People Act as the type of bold, innovative package of solutions
that can restore people's trust in our government. One final
note of thanks to House Speaker Pelosi for her commitment for
making this her first order of business in the new Congress.
My name is Karen Hobert Flynn, and I'm president of Common
Cause, a national nonpartisan watchdog organization with 1.2
million supporters. For nearly 50 years, we have been working
to strengthen the people's voice in their democracy. I'm here
to testify in support of For the People Act.
First, I want to say that Americans have not been waiting
for Washington to fix what ails them in our democracy. We have
been working at the State and local level with many other
groups to pass significant pro-democracy reforms. This is the
second consecutive election cycle where voters have passed 95
percent of the democracy reforms on the ballot.
In 2018, voters in 20 red, blue, and purple States and
localities have passed democracy reforms with strong support
from Republicans, Independent, and Democratic voters. This
includes voting rights restoration in Florida, same-day voter
registration in Maryland. It includes independent redistricting
commissions in Colorado, Michigan, and redistricting reform in
Utah, automatic voter registration in Nevada and Michigan, and
independent ethics commission in New Mexico, and an anti-
corruption package in Missouri.
I should note that also these kinds of reforms and many
embodied in H.R. 1, campaign finance disclosure, ethics
reforms, and others, also passed with bipartisan support in
State legislatures. The reforms embodied in H.R. 1 are not
lofty and tested ideas; most are pragmatic solutions that are
already working in a city or State somewhere in this country.
These solutions are proven to work, and, in many cases, save
taxpayers money.
The timing of this legislation has never been more
important as Americans grow more frustrated and cynical about
our State of politics. While every Presidential administration,
in our Nation's history, has had various ethical challenges, we
have never seen so many corruption scandals and appalling lack
of concern for the ethic rules that should govern our executive
branch than with this administration.
We have a series of reports that detail dozens and dozens
of ethical challenges and conflicts of interest that have
plagued this administration in the last two years. The American
people want transparency, honesty, and accountability from its
elected representatives. They do not want their elected leaders
to use their public office for private gain to enrich their
businesses, their wealthy donors, their family, or themselves.
We believe tough ethics laws like the ones that we're
talking about here today with the strength in Office of
Government Ethics that has independent oversight and
investigative and enforcement tools can help us prevent the
incessant assault on our democratic values and institutions to
self-government.
My written testimony outlines our support for all the
measures before the committee today, and I'll just add two more
comments. One is, I agree with Chairman Cummings that on
Election Day, we should make Election Day a holiday. We have
found, as we do election protection, nonpartisan election
protection across the country, that with aging infrastructure
and machines--machines malfunctioning, and a lack of polls--
poll workers, that people have long lines up to 4 hours. Many
working Americans can't afford to take 4 hours off of their day
in order to vote. So making it a holiday would make a huge
difference.
In addition, we strongly support the conflicts from
Political Fundraising Act, because Americans deserve to know
whether people nominated to serve in the executive branch have
raised money, or benefited from special interest money from the
industries they are supposed to regulate. There are currently
no requirements for Presidential appointees to disclose whether
they have solicited funds or contributed funds for political
purposes to PACs, super-PACs, 501(c)(4)'s, or 501(c)(6)
business associations, and it's a significant gap that we think
should be closed.
We don't work on these issues just to look good, we pass
reforms so that the government can be more responsive to the
needs of everyday Americans. You will hear some who benefit
from the current system, use tired arguments that defend the
current system saying it works fine. The American people do not
believe that our current system is just fine.
You will also hear people talking about the First Amendment
to justify billionaires, corporations, and special interest
spending millions of dollars in politics, while our children,
our families, and schools and communities, and our environment
all suffer. Polls show that people want bold ethics and
transparency reforms, and they want to clean up our system and
give people more voice in our democracy.
We look forward to working with this committee. We believe
that this is a strong package. There are always elements that
can be strengthened. We look forward to the questions ahead.
Thank you.
[Prepared Statement of Mrs. Hobert Flynn follows:]
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Chairman Cummings. Thank you very much.
Mr. Mehrbani.
STATEMENT OF RUDY MEHRBANI, SPITZER FELLOW AND SENIOR COUNSEL,
BRENNAN CENTER FOR JUSTICE
Mr. Mehrbani. I would like thank Chairman Cummings, Ranking
Member Jordan, and the entire committee, for the opportunity to
testify today in support of House Resolution 1, the For the
People Act. The Brennan Center enthusiastically supports H.R.
1, it would be historic legislation. It addresses longstanding
problems with our system of self-government, long lines, vast
sums of money of dark money, harmful rules and practices that
make it harder for many, especially voters of color, to cast
their ballot, the ongoing challenges of gerrymandering,
inadequate election administration, and at-risk technology. It
addresses these issues with groundbreaking reforms that are
proven to work. Automatic voter registration, small donor
matching, the Voter Rights Act, redistricting commissions,
early voting, election security and more.
It is thus fitting that this bill is the very first
introduced in this Congress. Today, I will focus on Title VIII
of the Act, ethics reform for the President, Vice President,
and Federal officers and employees. The reforms respond to the
erosion of ethical guardrails in government that we have seen
over a number of years. They are a strong first step to
restoring public faith in accountable and ethical government.
We have long assumed that all Presidential administrations
would follow longstanding ethics practices and ideals that
aren't required by law. For example, following precedent
established by their predecessors over the last 40-odd years to
publicly release their tax returns; voluntarily comply with
conflicts of interest law that apply to other executive branch
employees by divesting from potentially conflicting assets, or
keeping their assets in a qualified blind trust; strive to
avoid the appearance of improper or undue influence of outside
interests in the way their administration has formulated
official policy, or strive to fully enforce existing ethics
laws.
Unfortunately, these commonsense practices that Presidents
from both parties followed for decades can no longer be taken
for granted. This means that new laws are needed to compel a
commitment to ethics and ensure accountability. As I detail in
my written testimony, when President's and agency heads do not
lead on ethics issues, they can result in serious ethical
lapses: the improper use of government positions; running afoul
of other laws like appropriations laws; and violations of
revolving-door prohibitions. This results in an incredible
waste of taxpayer resources, and it seriously harms public
trust and faith in government. From my experience in
government, Presidential leadership on ethics issues filters
down throughout an administration. When I ran the Presidential
Personnel Office, we followed certain practices, not just
because of my office's commitment, but because President Obama
demanded that we have an ethical personnel process. That meant
that we worked collaboratively with the Office of Government
Ethics, and strengthened post-employment lobbying restrictions,
even if that wasn't technically required by law.
Some have said that more robust ethics rules would deter
talented individuals from serving in government. But many of
the reforms in H.R. 1 have long been voluntarily followed by
administrations. Some administrations, like the one that I
served in, went further and supplemented those rules. What was
the result? A historic number of Americans expressing interest
to serve in an administration; arguably, the most diverse
administration in history, and appointees who, on average,
served in their positions substantially longer than their
predecessors. Strong ethics laws, in short, help recruitment.
The recent poll showed only a third of Americans trust
government to do what is right, a decline of 14 percent from
2017. More than three-quarters of voters ranked corruption in
government as a top issue in the 2018 election. With almost a
third calling it the most important issue. At the same time, we
know Americans are yearning for solutions to these problems,
and real action on those solutions.
This Congress was elected with the highest voter turn-out
in a midterm since 1914. Many of you were elected with a pledge
to reform democracy. And in States across the country, major
ballot measures were passed by large bipartisan margins to
implement bold and creative reform. Voters spoke clearly. The
best way to respond to a tax on democracy is to strengthen it,
which is exactly what H.R. 1 does. We urge to you to pass it.
Thank you, and I look forward to answering your questions.
[Prepared Statement of Mr. Mehrbani follows:]
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Chairman Cummings. Mr. Shaub.
STATEMENT OF WALTER M. SHAUB, JR., SENIOR ADVISOR, CITIZENS FOR
RESPONSIBILITY AND ETHICS IN WASHINGTON
Mr. Shaub. Chairman Cummings, Ranking Member Jordan, and
members of the committee, thank you for inviting me to talk
about the ethics reforms in H.R. 1. I served in the Office of
Government Ethics as director, and before that, as a career
ethics official. In my 14 years there, I have been intimately
involved in protecting the principle that public service is a
public trust.
Based on this experience, I know how urgently we need
reform, and that's why I support H.R. 1. The executive branch
ethics program focuses on prevention. OGE has no real
enforcement authority. In theory, OGE can order officials to
cease ongoing violations, but statutory limitations prevent an
effective use of this authority. OGE can ask agencies to
conduct investigations and can request copies of records, but
it has no power to do anything if they ignore these requests.
Lacking enforcement tools, OGE relies on the director's
ability to persuade or shame officials into doing the right
thing. This was never ideal, but it worked fairly well for four
decades. During my time in government, Presidents Bush and
Obama were reliable supporters of OGE. They showed that
government ethics is not a partisan issue.
We now find ourselves in an ethics crisis. The trigger was
President Trump's refusal to divest his conflicting financial
interests. This radical departure from ethical norms leaves the
public with no way of knowing how personal interests are
affecting public policy. What we do know only raises questions.
For example, questions surround President Trump's response
when individuals associated with the Saudi Government murdered
a Washington Post journalist, a resident of my home State. We
can only wonder if President Trump's financial interests
influenced the handling of sanctions on certain Russian
businesses. Did they affect his decision to help Chinese
telecom giant ZTE? Why did the administration scrap the plan to
move FBI's headquarters? Was it because President Trump didn't
want a competitor moving in so close to his D.C. hotel? These
are just a few examples.
And the President's disinterest in ethics has infected his
appointees. The heads of six agencies have stepped down under a
cloud of ethics issues. At least seven other appointees
resigned under the taint of an investigation, ethics issues, or
security clearance concerns. The Office of Special Counsel has
found that nine of his appointees violated the Hatch Act, and
there are dozens of pending ethics-related investigations.
H.R. 1 kicks off what I hope will be a wave of reform. It
focuses not just on the current crisis, but also issues that
predate this administration. For example, H.R. 1 addresses big
payouts to incoming officials. These golden parachutes raise
concerns about an employee appointee's loyalty to a former
employer.
When former Treasury Secretary Jack Lew left Wall Street to
join the State Department, he received a large bonus. His
employment agreement let him keep that bonus specifically
because he landed a high-level government job. I'm glad to see
a provision in H.R. 1 addressing this issue, and my written
testimony offers a suggestion for strengthening it further.
H.R. 1 would also make OGE more independent. Like the heads
of MSPB and OSC, OGE's director would be allowed to communicate
directly with Congress and would be removable only for cause.
Rather than depending on other agencies, OGE would be able to
conduct meaningful inquiries by issuing subpoenas. H.R. 1 would
increase the transparency of waivers which can undermine the
ethics program if granted improperly. The public needs to know
about waivers.
Before leaving OGE, I exposed questionable practices
involving the issuance of undated, unsigned, and retroactive
waivers, some of which seemed designed to paper over ethics
violations.
I'll close by emphasizing that what's at stake is the very
integrity of government. The Supreme Court has warned one that
a conflict of interest is an evil that endangers the very
fabric of a democratic society. The Court explained that
democracy is effective only if people have faith in those who
govern. We need ethics reform before the public's trust in
government is shattered beyond repair. I urge you to pass H.R.
1.
Thank you again for inviting me, and I'm happy to answer
any questions the committee may have today.
[Prepared Statement of Mr. Shaub follows:]
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Chairman Cummings. Mr. Smith.
STATEMENT OF BRADLEY A. SMITH, CHAIRMAN, INSTITUTE FOR FREE
SPEECH
Mr. Smith. Thank you, Chairman Cummings, Mr. Jordan, and
members of the committee. The Institute for Free Speech has
been producing detailed analyses of the many sections of this,
the chairman called it a sweeping bill, 570 pages, some of
those are available here today.
I'm going to focus very briefly on two aspects of this
bill, with which I have particular expertise as former chairman
of the Federal Election Commission, and as the author of the
leading academic analysis of super-PAC and coordinated
spending, and the author of many of the FEC's current
coordination rules.
Since its inception, the Federal Election Commission has
been a bipartisan agency. This is at the insistence of people
such as Democratic Representative Wayne Hayes and Democratic
Senator Alan Cranston, who warned, we must not allow the FEC to
become a tool for harassment by future imperial Presidents who
may seek to repeat the abuses of Watergate.
Subtitle A of Title VI of H.R. 1 would replace the six-
member bipartisan FEC, with a five-member panel subject to
partisan control. In theory, only two members could come from
any one party requiring a fifth seat to be held by an
Independent, but this is a fig leaf. In fact, the FEC has an
Independent now, but it's understood that Commissioner Stephen
Walther was appointed at the behest of former Democratic Senate
Leader Harry Reid, who Mr. Walther had represented in election
matters. And it's understood that he holds a Democratic seat.
Under H.R. 1, Senator Bernie Sanders, for example, a front-
runner for the Democratic Presidential nomination in 2020,
could be appointed as a, quote, ``Independent.'' Any President
could find a nominal Independent to reflect his party's views
creating a partisan majority on the Commission. Further, H.R. 1
gives vast new powers to FEC chairman, justifying fully the
title of Speech Czar. The chair would be the sole power to
determine the agency budget, to subpoena witnesses, to compel
testimony and reports, and to appoint the staff director, who
oversees, among other things, the FEC's audit division.
This is a prescription for partisan control and abuse. I
assume the majority knows that, and that is why this provision
of the bill, unlike the others, does not take effect until
2021. The majority has no intention of allowing President Trump
to appoint all five commissioners, including the powerful
chair.
Now, the claim was made that a partisan-controlled
commission is necessary to restore integrity to election
enforcement. This has it exactly backward. The only reason that
the FEC has any credibility is its bipartisan makeup. Under
Title VI, the person elected in 2020 will appoint all five
members of the commission, including the powerful chair, which
will have the power to write and then rewrite new rules with an
eye toward the 2022 midterms, the 2024 and 2028 Presidential
elections.
Now, some of you may consider this a feature rather than a
bug, but be careful what you wish for, you didn't think Trump
would win in 2016 either. Subtitle B of Title VI is called
Stopping Super-PAC Candidate Coordination. The sponsors and
drafters are either being intentionally disingenuous here, or
they simply do not understand what has been put in their own
legislation.
Nothing in Subtitle B, nothing limits its reach to super-
PACs, it applies to every union, trade association, advocacy
group, and unincorporated association in the country. It
applies to Planned Parenthood and Right to Life, to the NAACP
and the ACLU, to the National Federation of Independent
Business, and to the Brady Campaign for Gun Safety. It even
applies to individual citizens who seek to participate in
public discussion.
Nothing--this cannot be said often enough--limits it to
super-PACs. Through the interplay of its definitions of
coordination and coordinated spenders, the law's treatment--
traditional treatment of coordinating spending as a
contribution to a candidate and current contribution limits in
the law, Subtitle B will actually have the effect of banning,
not limiting, but actually banning a great deal of speech that
was legal even before the Supreme Court's decisions in Citizens
United v. FEC and Buckley v. Valeo.
So, again, this law goes backward to outlaw speech that was
always legal in American history even before the Citizens
United decision. As the full text of my prepared remarks
explains in greater details these problems of Title VI, but in
a nutshell, Title VI should be called the Alien--the New Alien
and Sedition Act.
With just a few seconds remaining, let me add only on Title
VIII, this seems to be one of the least harmful provisions of
the bill, but that is not to say that it is not like some of
the other provisions, a bit of overkill. It's interesting to me
that it does not include, as covered individuals, people who
have previously lobbied for cities and counties and local
government units, and it would normally be the case that those
groups lobby extensively in Congress, and perhaps should be
also checked for conflict of interest.
I also question the assumption of the bill, which seems to
be that anybody with a past experience in the private sector is
somehow dangerous and should have a legal conflict of interest
defined by law before they even take office. I think that's
overkill and inappropriate.
Thank you very much for your time. I'm free to answer any
questions.
[Prepared Statement of Mr. Smith follows:]
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Chairman Cummings. Thank you very much to all of our
witnesses, and thank you for staying within the time limit. I
will now yield five minutes to the distinguished lady from
Michigan, Ms. Tlaib.
Ms. Tlaib. Thank you so much, Chairman, and thank you so
much to Chairman Sarbanes for his incredible leadership on this
issue. I think For the People, H.R. 1, is important in trying
to restore public trust and to this institution. I know I'm a
freshman, I'm new, I think a lot of people know that I really
truly believe in the rule of law and believe in trying to
restore to the core center of getting people to understand this
body here works for them.
So as a new Member, you know, I see now why a lot of my
residents are really taken aback by this process and not
feeling like it belongs to them. Through the chair, we all know
this is a very critical issue. I think both Republicans and
Democrats alike see this as a critical issue in taking
corruption out of government. So for me, as you said about
strengthening this, but more importantly, you know, in the
first two years in office, I think the President made 281
visits to properties he still profits from.
More than 150 political committees, including campaigns and
party committees have spent nearly $5 million at Trump
businesses since he became President. At least 13 special
interest groups have lobbied the White House around the same
time they also did business with the Trump organization.
I can go on, I can submit this to record, but as a person
that's coming here as a brand new Member, I cannot believe this
is not illegal already. That this is not something that we push
up against, and say, Enough. Because as we step into here, we
work for the people. We have to check our businesses, we have
to check our personal and professional conflicts. Any lawyer
across this country will tell you, it is dangerous to allow any
sort of conflict to exist while you're trying to serve others,
especially in a public position like this.
I have seen modern Presidents, both parties, before this
President, address these potential conflict of interests by
adhering to all ethical norms and traditions that resulted in
the sale of their financial interest, completely divesting in
their foreign and domestic investments. I'm really taken aback
by the fact that we still have to currently now fight for
something that is so critically important in restoring public
trust. That now we're setting a precedent that it's okay for a
President not to divest. That it's okay that I have--Gary Cohn,
President Trump's Director of National Economic Council,
received more than $100 million like payments from Goldman
Sachs before he came in to work for Trump--for the President,
I'm sorry, Chairman.
So one of the things that I'm taken aback by is like, you
know, we're talking in the good--my good colleague from Ohio
mentioned the original H.R. 1 tax break. Who works on that?
Because back home in the district, they call that a payout.
They really do. They know who was behind the scenes running
that and pushing that forward.
So my question to you is, how can we move because this
should-have, could-have, maybe, and all these kind--to me that
doesn't go far enough to starting to make people feel like this
is their House, that this Congress belongs to them. Because
right now all they see is people that are at the top that make
millions of dollars that are completely disconnected with the
American people. And I can tell you, every single day from
underemployment to poverty in my district, we're feeling like
here we don't have a voice.
So with that, Mr. Shaub, I really would love to hear, how
do you think we can really strengthen this, and where the
dangerous precedent is, because more and more, we're now seeing
other people interested, former CEOs, others, interested in
becoming President of the United States.
Mr. Shaub. You know, I applaud the bill for including a
Statement of Congress that the President should divest. I think
that takes a step toward reestablishing the norm, and it would
have been helpful to me as director of OGE to be able to point
to that. I personally would like to see it go further and
require divestiture, because we have a situation now where
people who seek to influence the government can funnel bags of
cash to the President through his various properties.
You have government contractors, charities, businesses,
associations, politicians, political parties, political groups,
using his facilities and paying just absolutely gobs of cash
for the privilege of hobnobbing with the President.
Unfortunately, the President has done nothing to discourage
this. He didn't even try to mitigate it by saying, I and my
appointees will refuse to attend events at my properties, to
discourage people from holding them there because they would
lose access to the government by having the event there.
Instead, there seems to be this embrace and this encouragement,
and the sense on the part of interested parties that they have
to engage in this to even be on an even footing with their
competitors.
Mr. Meadows. Mr. Chairman.
Ms. Tlaib. Can I reclaim my time?
Chairman Cummings. The gentlelady has about 5 seconds, but
go ahead.
Ms. Tlaib. Oh, I just want--the constituent you spoke
about, do you know in 2017, for example, Saudi lobbyists spent
$217,000 to reserve rooms at Trump-owned hotels. And that, to
me, makes you pause about your constituent being killed by that
government.
Mr. Shaub. I do know that, yes.
Chairman Cummings. Thank you.
Mr. Meadows. Mr. Chairman, I would just point out to the
chairman, the witness may want to clarify his remarks when he's
saying ``gobs of cash.'' I don't know that he would have any
proof, and since he's under oath, I don't know that he would
want to make that type of Statement.
Chairman Cummings. Well, I will allow the gentleman, if you
want to clarify what you meant by ``gobs of cash.''
Mr. Shaub. Representative Meadows, what I mean is that
people are paying money to the Trump organization to use his
facilities, and the direct beneficiary of that money is
President Trump, because he's the beneficiary of the trust that
holds that. So the money is flowing to President Trump, and the
steps he's taken to step back from it have had absolutely zero
effect in any way to diminish the financial interest in the
money that comes through. So I do, indeed, mean that this is a
funnel for money, but----
Mr. Meadows. You didn't mean cash?
Mr. Shaub. Yes, I don't mean they are handing it directly
to him.
Chairman Cummings. The gentleman has defined it, thank you.
Chairman Cummings. We will now hear from Mr. Gosar for five
minutes.
Mr. Gosar. Thank you very much, Mr. Chairman.
I must have been living in the twilight zone for the first
six years of my first eight years. Fast and Furious, Operation
Choke Point, Benghazi, IRS targeting, the intimidation of the
press with James Rosen and Sharyl Attkisson, Uranium 1, the
unmasking of American citizens, and out-of-control DOJ. Really?
Really?
Mr. Smith, I'm going to concentrate with you. H.R. 1
expands the definition of foreign national. Do you think,
however, that it would make sense to strengthen the disclosure
requirements in order to prevent foreign nationals from
potentially funneling hundreds of millions of dollars to the
U.S. campaigns?
Mr. Smith. Well, the difficult question is always how
exactly does one intend to do this. And one of the things that
you have to keep in mind is that most regulations that would be
imposed will be felt by American citizens. The vast majority of
people who have to comply will be American citizens. So, when
we engage in this type of thinking, we need to be, you know,
careful that we're not giving up our own rights. You know, we
fought the cold war without surrendering our own rights, and
now the fact that, you know, we're afraid of, you know, the
rump State of the former Soviet Union is going to somehow
destroy America and so now we should rush to throw away hard-
won protections--I think Mr. Jordan talked about them in the
cases like the NAACP v. Alabama. We need to be careful. So I do
think foreign engagement poses a different issue, but kind of a
scattershot approach that mainly hits American citizens is
unwise.
Mr. Gosar. You know, I agree with you, and let's just
tailor that aspect. Do you think amending the Federal Election
Campaign Act of 1971 to require what is already required of
American citizens, the disclosure of the credit verification
value, or the CVV, and a legal billing address, for all loaned
contributions would help ensure that the credit cards are
registered to someone who actually lives in the United States?
Mr. Smith. Well, one thing you could do, for example--most
campaigns for years did this voluntarily, and this became
something of an issue because the Obama campaigns did not--was
to put checks in place on credit cards, in particular, prepaid
credit cards. That is the kind of thing that could be done by
regulation through the FEC or I suppose by statue if there were
a desire to do that, to ensure that those credit cards were
tied to a U.S. individual, not just sort of handed out to
whoever wants to use prepaid credit cards.
Mr. Gosar. Well, and these are two great ideas, a CVV and a
billing address. It would actually make sure that somebody's
actually living in this country, wouldn't you agree.
Mr. Smith. You're aware that people don't have to live in
this country.
Mr. Gosar. Oh, I understand.
Mr. Smith. U.S. citizens live abroad and so on.
Mr. Gosar. This definitely is a means of calibration that
would stop some of the illegal contributions.
Mr. Smith. It would probably be a safeguard. Again, one
that most campaigns have followed and one that could be
enacted, I think, either by regulation or statue.
Mr. Gosar. You know, in the last administration, we saw
multiple examples of average American citizens being targeted
for their political beliefs, most notably the IRS and FBI
targeting political opponents. With that in mind, H.R. 1 would
create a partisan FEC--I think you addressed that--that could
use the power of the Federal Government to quell speech that
disagrees with it. What effects do you think this will have on
free speech and discourse?
Mr. Smith. Well, you know, I called it the new alien and
sedition act, so I think that's a pretty strong Statement to
put in very general terms. One of the things that has been an
issue at the FEC and in enforcement in the States as well is
the use of these complaint processes as political weapons in
and of themselves. It often doesn't matter if you actually even
prove a violation; you simply start the investigation process.
Responding to an FEC investigation can be very costly. The
investigation is intrusive. They can go into your strategies
and tactics to tie up campaign time, to get bad press, and so
on. So often it was said the punishment is the process rather
than any fine that's meted out at the end in part because you
quite likely did nothing wrong. So very definitely there can be
a chilling effect here, and that chilling effect is most
pronounced on small grassroots campaigns which don't have the
lobbyists and the lawyers and so on who know these complex
regulations and can deal with them easily.
Mr. Gosar. So two quick questions. Can you explain what
ethics reform, FEC restructuring, and a new Federal holiday all
have in common?
Mr. Smith. I suppose they all deal in some way with the
Federal Government, but this is certainly a grab bag of bills.
I would actually suggest that one of the best things the
majority could do would be to divide this bill into its
component parts so that they could be focused on one at a time.
Many of them are only in the most vague sense related.
Mr. Gosar. One last question. Why do you think my good
friend from Maryland chose to combine such different topics
into one bill? You started in on it, so----
Mr. Smith. I think that would probably be a question better
directed to your good friend from Maryland. I'm not going to
try to read his mind.
Mr. Gosar. I thank the gentleman.
I yield back.
Chairman Cummings. I yield to the distinguished lady from
New York, Mrs. Maloney, for five minutes.
Mrs. Maloney. Thank you, and I thank you and Mr. Sarbanes
for your selfless, devoted work on H.R. 1 over many years.
Mr. Amey, I'd like to ask you about Presidential contracts,
the ability of the President and Vice President now under the
law to compete against the Members of Congress--to compete for
properties that other Federal employees and Members of Congress
are barred by law from entering into contracts or leases. And I
want to speak to the Presidential Conflicts of Interest Act,
which is part of Intro 1, which would put a restriction on the
President and the Vice President in entering into any
contracts, which happens to be the standards for Members of
Congress and Federal employees. Would you agree with the intent
of Intro 1's specific proposal on Presidential conflicts of
interest?
Mr. Amey. Yes, Congresswoman. Obviously, you're talking
about the General Services Agency's lease with President Trump
and the Trump Hotel here in Washington D.C.
Mrs. Maloney. Yes, sir.
Mr. Amey. There is a provision in that lease, you know,
that is up for debate. Obviously, the GSA and their legal
counsel have had different feelings than a lot of people on
this side of the table have had about the interpretation of
that lease provision. The one problem and why H.R. 1 on this
specific provision is necessary is it was in about 1994 that
the Federal Acquisition Regulation stripped the provision that
was called the Officials Not Benefit provision, and so it was
in one of the acquisition reform bills, Federal Acquisition
Reform Act or the Services Acquisition Reform Act, but that
provision was stripped out, so it's no longer in the FAR.
So I think it's important to put back, and you raise a good
point. That provision actually mentioned Members of Congress at
that time, and that has continued for Members of Congress but
hasn't affected other people in the executive branch, and so I
do think it's necessary.
Mrs. Maloney. Well, as many of my colleagues know, in 2017,
the members of this committee, the Democrats, literally sued
for information about the lease and contract between the
President's hotel here, the Washington, DC, hotel and the lease
with the old office building. And we were told then by the
general accounting services, the General Services
Administration, that we were not entitled to exercise our
oversight and responsibilities of reviewing this lease. They
barred us from getting this information. So we are literally
still in court trying to obtain this. Many of us feel that this
is a glaring conflict of interest. Why shouldn't the Oversight
Committee have access to leases and contracts that we want to
question even if it includes the President of the United
States? Now, in this case of the Trump International Hotel, the
President is both the landlord and the tenant, and he
ultimately also oversees GSA, the agency that was responsible
for enforcing this lease, this contract. How can Congress, Mr.
Amey, or the American people be sure that GSA is really acting
impartially in carrying out the law when they are really
interpreting what their supervisor----
Mr. Amey. Well, when you have someone that's the landlord,
the tenant, the judge, and the jury, and obviously appointed
the head of the General Services Administration, then, at that
point, it is a major conflict of interest. There are also some
concerns because the Trump children were involved in the
negotiation of that lease, and I'm actually outraged at the
fact that the GSA hasn't turned over the information to
Congress. That's where it is important. That's where
transparency when it comes to government ethics matters, that
we should be seeing as much information about that to remove
the appearance of a conflict of interest but also to ensure
that there's not an actual conflict of interest that needs to
be resolved.
Mrs. Maloney. Okay. Now, in this particular lease for the
Old Post Office building, it explicitly prohibited an elected
official from being a party, but GSA failed to enforce it, and
I would say that there would definitely be an impact, and I'll
ask Mr. Mehrbani.
Mr. Mehrbani. Mehrbani.
Mrs. Maloney. There could be a definite conflict of
interest that could have a freezing effect on competition. How
many people want to compete against the President of the United
States for a lease or a contract? Wouldn't you agree that that
would be a chilling effect on any competition? What would be
the effect of this going forward?
Mr. Mehrbani. I would agree with that, Congresswoman, and
as you know, the inspector general of the General Services
Administration recently released a report that was critical of
GSA's analysis of the validity of this lease for improperly
omitting constitutional issues from their analysis. And to me,
that raises the question of whether there was improper
influence or at least the specter of self-dealing to the public
that greatly undermines public trust. It's also one of the
reasons why I should say that the National Task Force for
Democracy and Rule of Law, which is a Brennan Center initiative
that includes some of your former colleagues in a bipartisan
group of former Republicans and Democrats, and they've proposed
extending the existing prohibition and the conflicts of
interest law to the President and Vice President to avoid
specific instances like this.
Mrs. Maloney. And that's what H.R. 1 will do, and I
strongly support it and urge its passage.
Chairman Cummings. The distinguished gentleman from North
Carolina, Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman, and thank all of you
for your testimony.
Mr. Mehrbani, I guess you're in favor of matching dollars,
using taxpayer dollars to match small donations as is outlined
in H.R. 1. Is that correct?
Mr. Mehrbani. The Brennan Center does support the proposal
in H.R. 1, which is modeled after an existing proposal that has
existed for years in New York which multiple----
Mr. Meadows. Well, I've only got five minutes. Yes or no.
Do you support it?
Mr. Mehrbani. Yes.
Mr. Meadows. So I guess here's the interesting fact that I
just find just fascinating: A Democrat bill, H.R. 1, would
actually use taxpayer dollars to reelect the Freedom Caucus
chairman. I would--under their bill, I would get almost $4
million of taxpayer dollars, and I would say I don't see any of
my constituents in the audience here. I can't imagine that they
would be happy with taxpayer dollars being used to reelect a
Freedom Caucus chairman. Do you not see a problem when we use
taxpayer dollars to reelect individual Members of Congress?
Mr. Mehrbani. If I may.
Mr. Meadows. I mean, would you support me financially?
Mr. Mehrbani. I would support spending the equivalent that
H.R. 1 would require, which I think is a dollar per citizen
every year over 10 years.
Mr. Meadows. It's a matching deal. We've done the math.
It's $3.8 million that I would get because I'm one of the top
10 in terms of small dollar donations in Congress. I would get
$3.8 million under this bill for reelection. I cannot find
anyone who holds government accountable that would think that
that would be a wise use of taxpayer dollars. Would you?
Mr. Mehrbani. Sir, campaigns need to be funded from
somewhere.
Mr. Meadows. I agree, but not my taxpayer dollars shouldn't
be going to it, sir.
Mr. Shaub, let me come to you. Are you in support of H.R.
1's investigative mandate for OGE?
Mr. Shaub. You know, I----
Mr. Meadows. You were in the job.
Mr. Shaub. I have said publicly that I'd prefer to see an
inspector general that has global authority over every agency
that doesn't have an inspector general and have supplemental
ethics authority upon referral to OGE. That's a proposal I've
presented to former Chairman Gowdy and current Chairman
Cummings. I do support the current bill because I don't think--
--
Mr. Meadows. But it has investigative authority. I've gone
through it, Mr. Shaub, and let me tell you why I'm concerned.
Because you came before my committee----
Mr. Shaub. Yes.
Mr. Meadows [continuing]. and you gave sworn testimony----
Mr. Shaub. Yes, I did.
Mr. Meadows [continuing]. which is exactly opposite of H.R.
1, and yet here you are today espousing its merits, and I can't
find why all of a sudden you would have this newfound interest
to have investigative authority if it were not directed at the
current President of the United States.
Mr. Shaub. Yes. I have two Statements about that. One is I
don't think it creates the kind of investigative authority that
an inspector general does, so I don't think all investigative
authority is created equally----
Mr. Meadows. I agree with that.
Mr. Shaub [continuing]. but it does create some. My views
on that have changed. But this proposal----
Mr. Meadows. With this President?
Mr. Shaub. This proposal would not apply only to this
President. It would apply to the next President.
Mr. Meadows. No. Listen. It's not my first rodeo; it's not
yours, either. But what I'm saying is I find it extremely
hypocritical that you would come here today, having sworn under
oath that this was not the way to go when there was a different
President in the White House, and then here today--and followed
it up with a letter. I mean, we've got numerous quotes from you
over and over and over again which would undermine H.R. 1, and
yet here you are today supporting that. How do you have this
evolution in such a short period of time, Mr. Shaub?
Mr. Shaub. Well, first of all, I was telling the truth
then, and I'm telling the truth now, so let's be clear about
that. I did disagree with the idea of investigative authority
back then. I've now sat for two years and just watched----
Mr. Meadows. So you were just wrong back then.
Mr. Shaub. No, I wasn't.
Mr. Meadows. Because I was suggesting that you should have
the investigative authority, and you said, quote--let me quote
you. Hold on -
Mr. Shaub. No. I recall you suggested----
Mr. Meadows. Let me quote you here. I said, ``So you do not
want the authority to be able to investigate?''
``No, I don't think so.''
I said, ``You don't want it,'' and, quote, ``Well, I don't
think we should have it. What I might want one way or another
is not relevant as it would not be the right thing,'' closed
quote. All of a sudden today you're having an epiphany, and
it's changing, Mr. Shaub?
Mr. Shaub. No, it's not all of a sudden at all. It's after
watching for two years somebody proved to me that the executive
branch ethics program was much weaker and much more fragile
than I ever thought it was. Frankly, I was naive. I never
imagined the President could come in and refuse to eliminate
his conflicts of interest, have appointees who are completely
disinterested in government ethics, and have, with all respect,
a Congress refuse to exercise oversight over them in that
respect. So, in the absence of any other avenue, I do now
believe that the Office of Government Ethics is going to have
to fill the gap.
Mr. Meadows. But, Mr. Shaub, that was precisely the point I
made in 2015, and you disagreed with me then.
I yield back.
Chairman Cummings. Thank you very much.
Mr. Shaub. I'll just say you were right.
Chairman Cummings. Thank you very much.
Mr. Meadows. We can agree on that.
Chairman Cummings. Thank you very much.
We'll now hear from Ms. Norton of the District of Columbia.
Ms. Norton. Thank you very much, Mr. Chairman, and
unrelated to my question, I do want to thank Mr. Sarbanes for
the findings in H.R. 1 regarding the D.C. Statehood Act because
these findings simply speak for themselves. People I represent
pay the highest taxes per capita in the United States. We do
vote the committee of the whole but have no final vote on the
house floor. I'm grateful to have a vote in this committee, and
I thank you, Chairman Cummings, for agreeing to hold a hearing
on this bill.
But I want to speak about the parts of H.R. 1 which simply
go to transparency. I think my first question is to Mrs. Hobert
Flynn, but I honestly would like to hear Mr. Smith's view of
this question. The Secretary of Education, Betsy DeVos, and her
family have donated millions of dollars to organizations who
lobby for education policy. Do either of you think that the
public has a right to know if the Secretary has donated
substantially to organizations, her background in donating that
could now influence her policies as Secretary? First, Ms.
Flynn, and I'd like to hear Mr. Smith on this question.
Mrs. Hobert Flynn. Thank you. You know, Education Secretary
Betsy DeVos and her family have given large sums of money to
influence politics at all levels of government, including
pressing for school voucher programs, something she's clearly
very supportive of. According to the Center for Responsive
Politics, DeVos and her family have donated over $20 million to
Republican candidates, party committees, PACs, and super-PACs,
and much of that political spending has been focused on
education as she now influences an Education Secretary. You
know, to me, I think it's important when the Senate is looking
at the nomination, when the American people are paying
attention, it's an important part of the equation that helps
shed light both on issues that she cares about and also her
investment in that. In fact, she gave an interview in Roll Call
where she said she, quote, decided to--decided, quote, ``to
stop taking offense at the suggestion that we are buying
influence.'' Quote, ``Now I simply concede the point,'' she
wrote 20 years ago, ``they are right. We do expect some things
in return. We expect to foster a conservative governing
philosophy consisting of limited government and respect for
traditional American values.'' So I think it's important for
the nomination process to have a fuller picture of where their
fundraising and political spending is going.
Ms. Norton. Mr. Smith, how could that do any harm? How can
it do anything but good, the more information we have?
Mr. Smith. I am, I have to say, shocked--shocked--to
discover that the Republican appointee to Secretary of
Education has been a Republican who has donated to Republican
candidates and causes and that her viewpoints----
Ms. Norton. So would you be shocked for us to know, for the
public to know about that background history as she takes
office?
Mr. Smith. I think that, as Ms. Hobert Flynn said, I agree
that's something that certainly Senators could ask during the
confirmation process. I find it hard to believe that there's an
ethical conflict in somebody----
Ms. Norton. There may not be . Reclaiming my time. I'm not
implying an ethical conflict, and my questions about
transparency are simply going to that, you know. Let it all
hang out, and then let everybody make their own judgment. Let
the committee make its own judgment. Let the public make its
own judgment.
Mr. Smith. I have a number of questions about your personal
life that I would be interested in, but I won't ask them here
today.
Ms. Norton. Well, come on and go straight ahead.
Mr. Smith. You know----
Ms. Norton. The point is it's not her personal life that
I'm asking about, Mr. Smith. What we're asking about is her
donations of money.
Mr. Smith. These are not----
Ms. Norton. Donations of money in ways that could reflect
on a trust she's now been given as part of her enforcement
activities. So it's not about just let it all hang out about my
personal life. It's about the relevance to what it is she is
enforcing. She is enforcing education policy. She's had a known
not only position but given millions of dollars in ways that
may conflict with parts of that policy. As I indicated when I
opened this line of questioning, it's only about transparency.
Let me go on to ask about the Conflicts of Political
Fundraising Act. I'm a co-sponsor of that. It's also in H.R. 1.
It simply requires----
Chairman Cummings. Your time has expired.
Ms. Norton. Thank you very much, Mr. Chairman.
Chairman Cummings. Mr. Amash.
Mr. Amash. Thank you, Mr. Chairman.
I yield to the ranking member, Mr. Jordan.
Mr. Jordan. I thank the gentleman for yielding.
Professor Smith, does H.R. 1 require States to offer early
voting?
Mr. Smith. Yes.
Mr. Jordan. Does H.R. 1, Professor, require States to offer
no excuse absentee voting?
Mr. Smith. Yes.
Mr. Jordan. Does H.R. 1 require paid leave for Federal
Workers to be poll workers?
Mr. Smith. Yes.
Mr. Jordan. Does H.R. 1 require States to let released
felons vote?
Mr. Smith. I believe it does.
Mr. Jordan. Does H.R. 1 require taxpayers to finance
campaigns?
Mr. Smith. Definitely.
Mr. Jordan. Definitely. Does H.R. 1 require taxpayers--as
Mr. Meadows was alluding to just a few minutes ago, does H.R. 1
require taxpayers pay for the campaigns of candidates they
oppose?
Mr. Smith. Yes. For example, under the system, if I were to
contribute $10 to the reelection campaign of the President, the
folks on this side of the aisle would collectively and with
others contribute $6 or something like that.
Mr. Jordan. Yep. Does H.R. 1 require States to have same-
day registration for voters?
Mr. Smith. I believe it does.
Mr. Jordan. Does H.R. 1 require automatic voter
registration?
Mr. Smith. I believe that's correct.
Mr. Jordan. Does H.R. 1 encourage States to pre-register
16-year-olds?
Mr. Smith. That I don't know off the top of my head.
Mr. Jordan. I'll tell you that one. It does.
Mr. Smith. I'll take your word for it.
Mr. Jordan. I appreciate that. Professor, does H.R. 1
require election day to be a Federal holiday if you work for
the Federal Government?
Mr. Smith. Yes, it does.
Mr. Jordan. And does H.R. 1 require the outing of donors, a
direct violation of freedom of association. You give to a
campaign; it permits that through the disclosure you're going
to be outed.
Mr. Smith. A great many provisions require a tremendous
amount of outing of a great many donors.
Mr. Jordan. Does H.R. 1 make the bipartisan FEC a partisan
organization?
Mr. Smith. I believe that it effectively does.
Mr. Jordan. Yes. And the example--I liked the example you
used. We'll take the U.S. Senate. Let's say Mitch McConnell and
Ted Cruz are the Republicans. Let's say Cory Booker and Kamala
Harris are the Democrats, and then the independent is Bernie
Sanders. That's supposed to be balanced, right?
Mr. Smith. That would work, yes.
Mr. Jordan. That would work. That's exactly what the
majority intends for it to be in 2021, something like that.
Maybe not those people, but I think people understand what
we're getting at here. Does H.R. 1 require--does H.R. 1 limit
free speech?
Mr. Smith. I believe that it does in significant ways, as I
pointed out in my testimony, in ways that it was not limited
even before some of the Supreme Court decisions that H.R. 1
purports to want to overturn.
Mr. Jordan. So let me take a whack at a little summary
here, Professor. H.R. 1 requires taxpayers to pay for a holiday
on election day for government workers. H.R. 1 requires
taxpayers to pay for six days of paid leave for government
workers who want to be poll workers. H.R. 1 requires taxpayers
to pay for politicians' campaigns, and if those same taxpayers
give to some organization, some C-4, they can be outed under
H.R. 1 so that the left can or anyone can harass them and their
family.
Mr. Smith. Yes.
Mr. Jordan. Such a deal for the taxpayer, right?
Mr. Smith. I'll leave that judgment to you folks who get to
vote on it.
Mr. Jordan. I mean, this is exactly where H.R. 1 sends us,
and that's why we're opposed to it, and that's why we're going
to keep fighting it. That's why we're saying the things we're
staying. So anything I'm missing in my summary there,
Professor? Anything you'd like to add?
Mr. Smith. I would only add that I think the disclosure
provisions are often worse than people think because they're
defining as political activity things that have never been
defined as political before, and you run the risk of
regulations swallowing up the entire discourse in which the
public engages. So I would really say I think the provisions
are worse than people think and that they're often hidden
through the complex interrelationships of----
Mr. Jordan. Give me an example.
Mr. Smith. Well, one example would be if an organization,
for example, were to hire somebody who had previously been an
intern, a paid intern for a Member of Congress, that
organization would then be prohibited from making any
communications that were deemed to promote, attack, support, or
oppose that candidate, and that vague term could apply to
almost anything, praising the candidate for introducing a bill,
criticizing the Congressman for opposing a bill, whatever it
might be.
Mr. Jordan. Wow. That would put the whole consulting
business in this town out of business.
Mr. Smith. It's not just the consulting, of course. It puts
out of business all of the interest groups----
Mr. Jordan. Of course.
Mr. Smith [continuing]. and all of the civic groups that
people belong to.
Mr. Jordan. I appreciate it.
Mr. Chairman, I yield back.
Chairman Cummings. Thank you very much.
I'm going to yield myself a few minutes.
One of the things, Ms. Hobert and Mr. Mehrbani, that gave
me chills when I read it was the 2016 opinion of the Fourth
Circuit Court of Appeals. You know, we're sitting around here
acting like it's not an inalienable right to be able to vote.
It's something they said that is chilling, and we can argue
back and forth all we want. They talked about the legislature
down there in North Carolina, and this is a quote from the
fourth circuit. These are Federal judges. They said before
enacting that law, the legislature requested data on the use by
race of a number of voting practices. Upon receipt of the race
data, the general assembly enacted legislation that
restricted--come on. You're talking about an inalienable
rights--that restricted voting and registration in five
different ways, all of which disproportionately affected
African Americans. They went on to say--this is the fourth
circuit. I didn't say this. The Federal court said it. They
said in response to claims that intentional racial
discrimination animated its action. The State offered only
meager justifications, although the new provisions target--and
this is what the court said--although the new provisions target
African Americans with almost surgical precision. They
constitute inapt remedies for the problems assertedly
justifying them and, in fact, impose cures for problems that
did not even exist. They went on to say: Thus, the asserted
justifications cannot and do not conceal the State's true
motivation, end of quote.
The reason why that quote means so much to me is that one
year ago today, on my mother's dying bed at 92 years old,
former sharecropper, her last words were: Do not let them take
our votes away from us.
They had fought, she had fought and seen people harmed,
beaten trying to vote. Talk about inalienable rights. Voting is
crucial, and I don't give a damn how you look at it. There are
efforts to stop people from voting. That's not right. This is
not Russia. This is the United States of America. I will fight
until the death to make sure every citizen, whether they're
Green Party, whether they're Freedom Party, whether they're
Democrats, whether they're Republicans, whoever, has that right
to vote. Because it is the essence of our democracy, and we can
play around and act like it's not, and guess what? I want to be
clear that when they look back on this moment 200 years from
now, that there are those of us who stood up and were able to
stay they stood up and said we will defend the right to vote.
Because you know what the problem is? For so many people, their
rights are pulled away from them. Then they got to put in laws
to get them back. Pulled away from them. What does that mean?
They cannot progress rapidly. They cannot progress with the
rest of society. All they're trying to do is trying to control
their own destiny. I'd just like to hear your comments, Ms.
Hobert and Mr. Mehrbani, on the fourth circuit's opinion.
Mrs. Hobert Flynn. So we have seen since 2010 a number of
States move efforts to shut down opportunities for people to
vote. We've seen proof of citizenship laws, photo ID. We've
seen early voting days repealed. We have seen States that have
election day registration repealed, all in efforts to make it
difficult for people to vote. A lot of this is focused on so-
called in-person voter fraud, which there is a 0.0003 percent
chance that that happens. It is a very rare thing. So what we
have is all these measures that are trying to tamp down on
something that isn't happening out there, and the end result is
we see many people purged from voter rolls and other things
with the thought that they're going to be addressing something
that isn't happening very frequently.
So that is a real challenge and one that we've seen in
States across the country. The reforms in H.R. 1, to put in
place early voting, to deal with voting machines so that
they're working and functioning, to add poll workers where we
have a real shortage of poll workers so people aren't standing
in line and leaving. All of these things are put in place to
help create opportunities for people to vote.
Election day registration is a perfect antidote to a purge
so that you can show up on election day; if you see that
there's a problem, then you can register vote and vote on that
day. That's why it's so important to be looking at these
reforms.
Chairman Cummings. Mr. Mehrbani.
Mr. Mehrbani. The one thing I want to add to that is these
reforms not just make it easier for people to vote and are
proven to increase turnout and participation; they actually
increase the accuracy of the rolls. So what we're hearing as
reasons not to adopt things like automatic voter registration,
same-day voter registration. As was said earlier, these are
reforms that already exist in States across the country, and
the Brennan Center has studied the implementation of them, and
they've shown to increase the accuracy of the poll and to even
decrease existing errors in the system.
I just want to say, Mr. Chairman, I appreciate your telling
that incredibly personal story and the impact that it had on me
personally and I'm sure on everyone who was listening.
Chairman Cummings. Mr. Hice.
Mr. Hice. I thank the chairman.
I would just--Mr. Chairman, all of us want integrity at the
voting booth, but if you are somehow implying that only
Republicans have been engaged in voter fraud, I challenge that
and take great offense at it.
We just saw in Texas tens of thousands of illegal aliens
voting, and this is an issue that goes far and wide. It is not
on one side of the aisle, sir, and I would like that to stand
corrected. This bill does not----
Chairman Cummings. Will the gentleman yield?
Mr. Hice. Yes, sir.
Chairman Cummings. I'll give you your second back.
Nobody said that. I didn't say that. I quoted the court,
and I did not just blame Republicans or anybody. All I know, I
was trying to make it clear that it has been made far difficult
for people who look like me to be able to vote, period, and we
all need to be addressing that. That's what I was trying to
say.
Mr. Hice. Reclaiming my time.
Chairman Cummings. If you took it any other way, I did not
intend it that way.
Mr. Hice. It was certainly implied that way, Mr. Chairman.
I accept what you just said.
My contention across the board, however, H.R. 1 does not
address this problem. It makes the potential for voter fraud
even a greater possibility. This is not a solution to the
problem that all of us in this room are concerned about.
Mr. Smith, I'd like to go to you. Should taxpayers be
required to pay for political speech?
Mr. Smith. Well, I think there are a couple of points
there. One is sort of a moral point that was raised earlier by
Mr. Meadows and by Mr. Jordan, that there's something sort of
deeply wrong about forcing people to fund the political
campaigns of candidates they greatly abhor, but there's also a
practical problem here.
Mr. Hice. Well, let me go on. All right. So yes or no,
should----
Mr. Smith. I mean, I think clearly not.
Mr. Hice. Okay.
Mr. Smith. There is a practical problem as well; it is not
just an ideological problem.
Mr. Hice. Well, absolutely. Maybe we'll have time to get
into some of that. So they should not be required to pay for
political speech. I'm assuming you would also agree that they
should not be required to pay for political speech that they
disagree with.
Mr. Smith. Well, in particular, yes.
Mr. Hice. All right. Our colleagues on the other side have
pointed to so-called success in expanding public funding of
election in places like Arizona, Maine, New York, and so forth.
So far as you're aware, have these programs been successful?
Mr. Smith. No. Typically the measure they use for that is
how many candidates choose to take the money. So they're kind
of saying: Well, if the government offers you free money and
you take it, wow, the program was successful. But in terms of
quality of governance, almost all the claims do not come true.
We're told that it would elect more minorities; that has not
been the case. To elect more women, that's not been the case.
You don't see much difference in the makeup of legislators.
Certainly I don't think people look at, you know, New York City
and say: Wow, now that they've had this matching program there,
they're well governed, you know, or better governed than in the
past.
Mr. Hice. So have these programs been successful in
preventing corruption?
Mr. Smith. I don't see any way they have. In fact, they're
often an avenue for corruption because, again, you have things
that were previously private money people, you know--if a
candidate wants to waste money, he can do it. Now it's public
money. If he diverts it to personal use, it creates a greater
scandal.
Mr. Hice. Do these programs really limit the influence of
special interests groups?
Mr. Smith. I've not seen that at all in part because
particularly with these matching funds types of things, groups
that are well organized to go out and solicit large amounts of
small contributions can do that. They also invite fraud in the
sense that, in the past, you know, a person might contribute
250-or $500,000 but now he tries to get a bunch of other people
to each contribute an amount below the matching amount and give
them money to make the contributions because then you up the
matches. So they're really sort of invitation to corruption.
Mr. Hice. You touched on this a while ago. I'd like for you
to go a little bit further. But what will this program do to
public discourse and free speech?
Mr. Smith. Well, public financing programs I think are not
helpful for free speech in part because again, they tend to be
avenues for corruption in many ways. We also find there are
studies that show that the small donors that are often
solicited for these things actually extend to be more partisan
donors than sort of more institutional people so that they tend
to lead to further polarization of the political system.
Mr. Hice. Okay.. One last question. Going back, it was
interesting to me when you mentioned the five-member versus
six-member on the FEC. Can you elaborate on that, why six
members, in your opinion, is the appropriate way to go, as
opposed to five?
Mr. Smith. Sure. It's a unique mission in the sense that it
directly regulates elections and who's going to win those
offices or can have that effect. So it's always required four
votes on a six-member commission; that is, you had to have some
measure of bipartisanship. Once you go to a five-member
commission, you'll lose that requirement of bipartisanship.
Furthermore, it will totally go away because the chair, again,
will have this tremendous authority on his own, even if all the
Commissioners oppose him, to subpoena people and launch
investigations and so on.
Mr. Hice. Thank you very much.
I yield back.
Chairman Cummings. Mr. Raskin of Maryland for five minutes.
Mr. Raskin. Thank you, Mr. Chairman. I want to first start
by applauding the sentiments that you just expressed. There's
been a profound struggle for the right to vote in American
history. We began with the vast majority of people in our
country not having the right to vote, but through political
struggle and constitutional change, we've enlarged the
electorate to include African Americans and to include women,
to include 18-year-olds. We've dismantled the property and
wealth qualifications, and at every turn, there have been
forces of conservatism and reaction that have tried to stop the
changes, oftentimes claiming fraud, oftentimes claiming that
the people newly enfranchised weren't really, truly deserving
voters. So we're seeing the same historic process reenacted
right now.
But that's just the first part of the issue. Once we get
people elected to office, there's the problem of the agency of
people who go into government. The Founders of the Constitution
wrote in Article I, section 9, the Emoluments Clause to make
sure that the President and other Federal officials would not
be on the take from foreign powers, kings, princes, and
governments, would accept no money at all, no payments
whatsoever, no offices, no titles, no emoluments. And, yet,
with that signal original breach, that original sin, this
administration basically opened the floodgates on corruption in
Washington and then appointed a fox to preside over every
henhouse in Washington, every regulatory agency taken over by a
regulated industry.
So we need to protect the right to vote against these
constant efforts to take people's right to vote away, and we
need to make sure that the people come to work in Washington
are actually serving the American people. And that's what part
of this legislation is all about. It's about strengthening the
Office of Government Ethics, and it includes the executive
branch Comprehensive Ethics Enforcement Act, which I'm proud to
introduce on the House side along with Senator Blumenthal on
the Senate side. One of the things it would do is to provide
the Director of the Office of Government Ethics with the same
authority that the inspectors general have to subpoena
documents, and I'm wondering, Mr. Amey, starting with you, how
would this help the work of the OGE Director, and can you give
us some examples of what that might mean?
Mr. Amey. Well, specifically, I mean, that's one of the
problems. The OGE currently has some authority, very limited
authorities to conduct investigations, hold a hearing, and ask
government officials to come in and testify. But that needs to
be strengthened. We have found that OGE is really a paper
tiger. Without this authority, it's very difficult. The ethics
system is really based on self-policing, you know, from day
one. I mean, it's up to a government official to come to an
ethics officer and disclose certain things. During the
confirmation process, it's up to them to go to OGE and make
certain disclosures. And that's where at least allowing OGE to
subpoena and hold the proper investigation with the proper
information in front of them will instill the fact that, you
know, we're trying to get to the conflicts of interest and
whatever waivers, recusals, or exemptions apply to make it more
transparent so we're aware of those conflicts and we can handle
them in due course.
Mr. Raskin. Thank you very much.
Mr. Shaub, you testified before this committee in 2015
while you were the Director of Office of Government Ethics, and
during that hearing, Mr. Chaffetz, who was then the chairman of
the committee, was frustrated with some of your testimony
because OGE was not doing its own investigations, and he
thought it was toothless. He said, and I quote: And I'm just
suggesting that you're just shuffling paperwork. If you're just
taking everything at face value and then reprinting and putting
it on the shelf, what good are you? Why should we even have you
if you're not going to actually review them and hold people
accountable and do an investigation?
H.R. 1 would, in fact, give OGE precisely the authority to
do meaningful investigations that Chairman Chaffetz and our
counterparts on the other side of the aisle were demanding.
Isn't that right?
Mr. Shaub. I think that's absolutely right. At the time, I
tried to explain that, as a practical matter, despite the
appearance of language that might look like investigative
authority in the current version of the Ethics in Government
Act, OGE was powerless to actually conduct any kind of
investigation. This bill would change that.
Mr. Raskin. I wonder if you would give us a sense of this
culture of corruption and lawlessness which now permeates
Washington. Most people would be astounded to know that people
come to Washington, go into a Federal agency, not in order to
pursue the common good and protect the public interest but in
order to pursue other agendas. Can you suggest from your wide
experience in this field what those other agendas might be?
Mr. Shaub. Well, I think one of the concerns that we look
at is the types of loyalties that they have, and the goal of
any ethics program should be to ensure that the loyalty of the
government officials is only to the people they serve and not
to companies for which they previously lobbied or previously
served as a high-level executive or anything like that.
Mr. Raskin. Mr. Amey, I'll go to you.
Mr. Amey. If I may, I think the one problem that we've seen
with the ethics system is, even if you look at OGE's
prosecution surveys or if you would go back through the Public
Integrity Section at the Department of Justice, most of it is
low-hanging fruit. I mean, most of it is low-level people that
are, you know, handling a contract or doing something. As you
go up the chain of command, the ethics laws kind of dwindle
off, and I truly believe it's kind of a catch-me-if-you-can
system these days.
Mr. Raskin. I yield back, Mr. Chairman. Thank you very
much.
Chairman Cummings. Mr. Comer for five minutes.
Mr. Comer. Thank you.
Chairman Cummings, I don't want to make it harder for
people to vote. I just want to make sure that elections are
fair and that only eligible voters vote. I'm from rural
Kentucky. Many elections this past election cycle were decided
by 10 votes or less.
But I have a huge problem with the proposal for same-day
voter registration. What I witnessed in California this past
Federal election cycle with the questionable ballot harvesting
gave me grave concerns about the integrity of our elections and
who is actually casting votes in some States that have passed
this type of version of election reform.
So I want to ask my first question to Mr. Smith and to
touch upon what Congressman Hice mentioned. This proposal, one
of the things it does is it removes the standard of the
chairman and vice chairman being from separate parties. In
Kentucky, we have a Board of Elections, and it's split down the
middle. Kentucky, it's is half Republican, half Democrat. How
might consolidating power in the hands of a single party and a
chairman of a single party undermine the legitimacy of the
Federal Election Commission?
Mr. Smith. As I mentioned earlier, historically it's
required bipartisanship. There has to be some degree of buy-in
from one commissioner who has identified with the other side of
the aisle, and that disappears here. As somebody pointed out,
in theory, the independent commissioner doesn't need to be
truly independent. But it's even worse than that, actually,
because if the President simply doesn't fill certain positions,
then a three-member quorum which could be two members of one
party and one independent or something could be free to launch
whatever investigations it chose, pass the regulations. The
regulations that you pass, of course, can be terribly biased in
favor of one party or the other. But also the enforcement
process, the priorities you choose, how you choose to go after
people, whether you choose to pursue certain folks, can be very
damaging. As I pointed out, oftentimes, the punishment is in
the process itself. You get bad press. Your resources become
tied up. And this can be on charges that are very bogus, that
have almost no real foundation in fact.
So a partisan FEC is a very dangerous potential weapon, and
it's worth noting that groups--you know, from time to time, the
FEC will get criticized. Republicans will say something like:
You know, this is a biased agency.
And the very first response that always comes out of the
mouth of people like some of the organizations represented down
the table here is: It requires some degree of bipartisanship,
right?
See, they themselves know that that's really the only thing
that gives the agency its legitimacy is that bipartisan makeup.
Mr. Hice. Right. To followup on that, this proposal, H.R.
1, also allows the general counsel to initiate an investigation
without bipartisan support and issue subpoenas on his own
authority. Does the bill provide sufficient checks on the
general counsel to make sure this significant authority is not
abused?
Mr. Smith. Well, I don't think--there is the possibility
for the Commission to override the general counsel's actions,
but if the Commission doesn't act, doesn't have enough time to
act for some reason or another, can't muster a quorum, the
general counsel can simply plow ahead. Plus, it allows the
Commissioners themselves to dodge any responsibility. They can
simply not vote and let the general counsel's recommendation
move forward. And note that first general counsel will be
appointed by the chair with concurrence of two of the
Commissioners. He has to have concurrence of two others for
this, but those will all be people appointed by this first
President who makes that appointment. And once he's in, he can
stay in indefinitely, unless you can muster a majority to vote
him out.
Mr. Hice. Let me ask you this last question. The asserted
purpose of H.R. 1 is to increase transparency in the electoral
process. I think we would all support that. But in what way
does creating a secretive taxpayer-funded blue ribbon panel to
lobby the President about whom to appoint to the FEC increase
transparency?
Mr. Smith. Well, this is a fascinating little part of the
bill. One part of the bill requires the creation of this blue
ribbon panel that's supposed to make recommendations to the
President as to whom he ought to appoint to the FEC. It's not
quite clear what the purpose of the panel is since they don't
have binding authority, but it is very interesting that the
first thing the bill does, then, is take this body out of the
requirements of the Federal Advisory Committee Act, which
exists precisely to make sure that it operates transparently,
and it allows it to operate in secret.
Mr. Hice. Thank you, Mr. Chairman. I yield back.
Chairman Cummings. Thank you very much.
Mr. Rouda.
Mr. Rouda. Thank you, Mr. Chairman, and thank you for your
comments earlier. A clear reminder for all of us here as to
what our obligations are to all Americans. In 2010, Citizens
United was settled by the Supreme Court. In that decision, the
majority made it very clear that they did not think that
decision would have virtually any impact on dark soft money
coming into the election process. The reality is, in that same
year, there was approximately $140 million of dark money that
came into the election process. Yet, in 2016, it was $1.6
billion--$1.6 billion. All because the Supreme Court decision
basically said corporations are people too. And I don't know
about you, but personally, I have never held hands with a
corporation. I've never dated a corporation. I've never made
out with a corporation. And I'm pretty sure no one else in this
room has either. We know that dark money leads to undue
influence at best and, at worst, outright corruption.
At the end of the Constitutional Convention in 1787 in
Philadelphia at Independence Hall, 11 years after the
Declaration of Independence was adopted by our Founders,
Benjamin Franklin was exiting the building. And a citizen came
up to him and asked him, Mr. Franklin, what kind of government
do we have? And he answered and said: A republic if you can
keep it.
Let that be a reminder to all of us as we contemplate the
amount of dark money and soft money coming into our government
and the ethics that can be corrupted by it, that this is
something that our Founders never envisioned. Now more than
ever, we do need to restore decency, transparency, and
responsibility by introducing ethics reforms for the President,
Vice President, and all Federal officers and employees.
This administration has had at best a very awkward
relationship with ethics and integrity. We must make sure the
President and his family members do not use the Presidency to
enrich themselves at the expense of the American people. I know
every single one of my colleagues here didn't come to Congress
to get rich. They came here because they believe in America, in
putting service above self, and country over party. We can do
that by passing commonsense reforms to our political system.
Let's work together to reduce the influence of big money in
politics, strengthen our rules for public service.
With that, I'd like to ask Mr. Shaub, does current law
prohibit all Federal employees from taking official actions to
benefit their own financial interests, and if so, what gray
areas still exist that need to be addressed?
Mr. Shaub. Well, I think the biggest gap is that it doesn't
cover the President or Vice President, and it's important to
remember that that exemption was not supposed to be some kind
of perk of high office, but rather, a recognition that a
President can't really recuse, not participate in urgent
matters of State which is why divestiture was always the
practice until now.
I think there are other conflicts of interest in the form
of these golden parachutes were people are not sufficiently
kept out of matters affecting those companies that give them
big payouts. And I think that there's an oversight problem
that's become apparent that there just is a limited ability to
be able to get into the matter and find the information because
OGE doesn't have the authority to do it, and I think this bill
addresses that.
Mr. Rouda. Yes, please.
Mr. Amey. Congressman, I just also want to point out the
fact that obviously there are some constitutional issues with
applying certain ethics rules and regulations to the President.
Some of those have been handled, and I think the provision in
H.R. 1 that specifically talks about this that was the sense of
Congress in the rules don't apply but they should act as if
they do actually follows the precedent of, in 1974, of
Assistant Attorney General Scalia in which he said the rules
don't apply, but it's good policy and that the exemptions to
them when they don't apply should be common--you know, like,
should be common and should be transparent so that we can
follow that and be aware of it.
And so, you know, this isn't a partisan issue. The bill
actually has come out where OLC and the Department of Justice
has said that has been the precedent for this, you know, for
30, 40 years.
Mr. Rouda. Thank you very much.
I yield back.
Mr. DeSaulnier. Mr. Cloud, you're next.
Mr. Cloud. Thank you, Mr. Chairman.
There's no doubt that government is broken. This Congress,
I can tell you especially after being here for six months, my
thoughts on that matter have only been confirmed.
But for all what we'll assume are the best intentions,
historically centralizing power has only led to more
corruption. I think a great example of this was how we saw the
IRS weaponized against groups that didn't agree with the
political leaning at the time. I'm also puzzled by the kind of
thinking that says, well, we don't trust government, so let's
give them more power. I think that the Founders understood this
in creating a Federalist republic form of government.
And, Mr. Smith, that brings me to a question. You mentioned
in your testimony--I believe I counted 28 times you mentioned
the word unconstitutional. Could you speak to some of your
concerns with this bill in reference to the Constitution?
Mr. Smith. Sure. And I'll focus on the speech parts because
that's what the Institution for Free Speech does--the Institute
for Free Speech. One of the things it does, for example, is it
would regulate speech that uses the term--it uses the term
promotes, supports, attacks, or opposes a candidate. That term
is extremely vague. It's not really clear what it means. If
somebody were to--if a union were to take out an ad saying it's
unfair that Federal employees should have to be laid off during
a shutdown, you know, tell President Trump to open--reopen the
government, is that attacking President Trump or not? The
Supreme Court has long said you have to have a clear standard
so that people know what they can say and what they don't when
they have to start reporting to the Federal Government, when
their ability to finance ads is limited in different ways. So
that's one thing, the vagueness of that phrase and another
phrase.
Another example would be that the bill presumes that
certain people are coordinated, coordinating their activities
with candidates even if they are not actually, in fact,
coordinating their activities with candidates. I used an
example earlier in response to one of your colleagues noting
that, for example, if you had a former intern, paid intern go
off and work for a citizens' group and they had concerns about
the bill, about some bill, they would be prohibited from
advertising on that because anything they did would be
considered coordinated even if it wasn't, and because they're a
corporation, they can't do coordinated expenditures at all.
This would mean, for example, if somebody were to leave the
minority staff and go to the majority staff and go to work for
the ACLU, at that point the ACLU would have to be quiet on any
kind of legislation they might want to comment on. That's
clearly unconstitutional under a case called Colorado
Republican Campaign Committee. The Supreme Court said you can't
presume coordination. People actually have to engage in
coordination before you can tell them that you can limit their
political speech. So those would be just two quick examples of
where I think the bill clearly goes off the rails and into the
teeth of existing constitutional law.
Mr. Cloud. Thank you. This bill also purports to limit
foreign influence in elections. Could you speak to how this
limits foreign interference, namely, to illegal immigration,
illegal immigrants voting in our elections?
Mr. Smith. I'm really not prepared to talk about how it
pertains. Obviously illegal immigrants are not allowed to vote
in U.S. elections. And, you know, because we're a speech
organization, we've not really commented much on the voting
rights provisions of the bill.
I will say the one thing that's often overlooked is the
issue is not really that illegal immigrants might vote in
elections. I think the more legitimate concern is that illegal
immigrants then count in the census, and thus, they inflate the
congressional representation of areas in which they tend to
settle. And it's no secret that those areas have tended to be
in recent years areas represented by Democrats. So essentially
it's a way that you kind of boost Democratic representation
because these nonvoters are included in the population. Now,
that may not be an inherently wrong thing. There's different
theories of regulation or representation, but that is the
effect there.
Mr. Cloud. Well, can you speak to any certain provisions in
this bill that might secure the vote for citizens?
Mr. Smith. Secure the vote for citizens?
Mr. Cloud. Yes.
Mr. Smith. I'm not quite sure I follow that. Sorry,
Congressman.
Mr. Cloud. Any provisions in the bill that ensure that only
citizens are voting in our elections.
Mr. Smith. I don't think there are any that take that
approach at all. Indeed, to the extent people are worried about
that, the bill probably has provisions that cut the other
direction.
Mr. Cloud. Okay. Could you then address whether or not
minority groups would be--have their vote count more or less
should illegal immigrants be invited to vote?
Mr. Smith. Well, I'm not sure it would change whether other
votes would count more or less. It would have an impact, of
course, on the makeup of the electorate, and that would
obviously have an impact on who wins elections at some point.
Mr. Cloud. Okay. Thank you. I yield back.
Mr. DeSaulnier . Thank you, Mr. Cloud.
Next up is Ms. Wasserman Schultz.
Ms. Wasserman Schultz . Thank you, Mr. Chairman.
My question is for Mr. Shaub. The Presidential Transition
Act allows candidates for the incoming Commander in Chief to
submit transition team members who would be eligible to receive
selected security clearances, and the current process is
clearly very flawed. I think you referenced that in your
opening remarks. There is really no transparency and a risk of
compromising our national security.
And we've got familiar facts here. The Trump transition
team requested a security clearance for his son-in-law, Jared
Kushner, and that gave him access to classified information
that we now know he should not have had. His history of failing
to report meetings, extensive business relationships should and
apparently did raise red flags that he could potentially be
compromised. And just a couple of weeks ago we learned that
Federal specialists proposed rejecting his application because
of concerns about his family business and his foreign contacts,
travel, and meetings that he had during the campaign and that
he could potentially be subject to undue influence.
Now we know that those same specialists were overruled by
their politically appointed supervisor, Mr. Carl Kline. And in
fact, Mr. Chairman, as I'm sure you're aware, Mr. Kline
overruled 30 such clearances, which is an unprecedented amount.
Apparently there had only been one prior overruling, I think,
in the history of that process.
Now, for the record, the committee might recall I actually
proposed two amendments in the appropriations bill in 2017 to
revoke Mr. Kushner's security clearance because he repeatedly
violated the rules and didn't report meetings that he had had
because he forgot about them. I don't know about you, but I
generally remember the foreign contact meetings, and I have a
record of them. I don't just forget them and repeatedly have to
amend applications. Most people wouldn't.
So it strained credulity to suggest that these were
meetings that he didn't remember. So we can't have the fox
watching the hen house any longer. And this bill at least takes
a step toward transparency. But how can we ensure that these
overrulings are no longer allowed, and what steps do you think
need to be taken to be sure that people in the White House and
the executive branch who should not have security clearances
don't have them, can't get them, and have them revoked when
they have been temporarily granted?
Mr. Shaub. Well, I think that--turning first to your
comments about the transition team, I think it's very important
that this bill addresses ethics for the transition team. It's
well established that it's not governmental, yet it does
receive governmental funds; it's full of people who are about
to become government officials; and it's full of people who are
getting access to information.
In terms of the security clearance process, I don't have
specific recommendations on that. That's not my specialty. It
is important, however, to depoliticize it as much as possible
and take steps to make sure that there isn't political
interference in the security clearance process. I also think in
this case we have a nepotism problem where you've got an
individual who repeatedly amended his security clearance form.
I have never in all my years seen as many amendments to a
financial disclosure form as he had to make, and I think that
this is the kind of thing that would ordinarily potentially
lead to either a termination or a revocation of security
clearance. But you've got a President's son-in-law in office,
which is another majority departure from the prior 50 years of
governmental practice.
Ms. Wasserman Schultz. Thank you.
Yes, Mr. Mehrbani.
Mr. Mehrbani. If I just may say on security clearances,
having worked on hundreds of these, not once out of all of my
experience in the White House do I recall overruling the
decisions of a career professional, and I think making sure
that that process is led by career professionals is one way to
prevent that from occurring.
Another way, especially for those who are nominated to
Senate-confirmed positions, is ensuring that their background
investigations are fully completed before those folks are
nominated and considered by the Senate.
Ms. Wasserman Schultz. Mr. Mehrbani, if I can ask you since
you do have experience in reviewing those security clearances,
why do you think that--why did you not--do you not recall any
of the clearances you reviewed being overruled?
Mr. Mehrbani. I don't recall any being overruled.
Ms. Wasserman Schultz. But for--I mean, for what valid
reason would there be to overrule a recommendation that someone
not be granted a security clearance? What's the risk of doing
that?
Mr. Mehrbani. So I never viewed myself as an expert, and it
requires expert experience and training to understand the
different factors that go into conducting a background
investigation, what factors should be considered derogatory and
potentially put an individual at risk of compromise or other
ways put national security at risk. And so I deferred to the
professionals who did that for many years.
Ms. Wasserman Schultz. So it's your opinion that
potentially national security is jeopardized with the
overruling of these recommendations?
Mr. Mehrbani. I do think it puts national security at risk,
yes.
Mr. DeSaulnier. Thank you, Mr. Mehrbani.
Ms. Wasserman Schultz. Thank you, Mr. Chairman, I yield
back.
Mr. DeSaulnier. I recognize Mr. Armstrong for his five
minutes.
Mr. Armstrong. Thank you, Mr. Chairman.
My question is for Mr. Smith. First, do you know the only
State in the country without voter registration?
Mr. Smith. No.
Mr. Armstrong. Well, I'm going to give everybody a little
trivia lesson. It's North Dakota.
Mr. Smith. That was my guess, but I'm under oath.
Mr. Armstrong. One of the things I think we run into when
we do Federal one-size-fits-all piece of legislation is maybe
the negative disparate impact it would have on certain rural
States that do things in a very unique way, which we're very
proud of. North Dakota is the only State in the country without
voter registration. We have an incredibly robust rural voting
program.
We have voting--counties that vote exclusively by mail, and
we have developed these programs with input from our citizens,
our electorate, our county officials and dealing with those
issues. We currently have no-excuse absentee ballot--absentee
voting. We allow felons to vote immediately upon release from
prison. Our poll workers are almost exclusively volunteers
across the entire State.
So, in short, we have the best and easiest voting booth
access in the entire country, and we are incredibly proud of
that. We also are set up somewhat uniquely in that we have
cities, counties, legislative districts, and one very big
congressional district.
But we have also gone through a lot of different issues,
and one of the questions I have is: Each of these counties
interacts differently with their voters based on the resources
available to them. And if I read this bill, it requires
mandatory 15-day early voting. Is that correct?
Mr. Smith. That's my understanding.
Mr. Armstrong. So what if you're an exclusively vote-by-
mail county?
Mr. Smith. Well, I'm not sure what you mean. I mean, if
you're an exclusively vote-by-mail county, you have a long
period to vote, generally.
Mr. Armstrong. So, in some of our counties, we actually go
earlier than 15 days; some of them we go shorter, but we have
extended hours to like 10 p.m. So, when we do mandatory early
voting, is that required in each district or each precinct or--
I mean, we set things up differently; like, in our larger city,
we have five legislative districts, but our early voting is at
one or two locations in that city.
Mr. Smith. Yes, as I understand the bill, it would require
all citizens have an opportunity for early voting. I am not
aware if it specifies all the polling locations where those
have to take place.
Mr. Armstrong. And we have gone through significant
affidavit reform in our State and have dealt with these issues
both at the county level, the local level, and the State level,
and we have worked forward to require all different forms of
ID, whether they're student IDs, and created mechanisms where
somebody can come to the polling place with an ID and a
different address, and we just do things that way.
But what we have gotten away from is the affidavit process.
And the reason we have gotten away from it is we have found
through a volunteer voting in excess of--we have found that
there has never been any mechanism to check an absentee ballot
after it's been submitted to whichever district it is. Now,
this would require the absentee ballot process to come back--or
the affidavit process to come back into place, correct?
Mr. Smith. That would be my understanding, yes.
Mr. Armstrong. And we--and this might be a little change,
but it's really important to the voters in North Dakota. So we
start our absent--our early voting process I think for military
deployed overseas as early as August. And we have, as I said,
no-excuse absentee ballots. But what we require is that our
ballots are postmarked the day before the election.
And in North Dakota, we really, really try to make sure the
election is over on election day. North Dakotans don't
understand how an election can change by 12,000, 13,000, 14,000
votes in the two to three weeks after an election day. Now, I'm
not in the business of telling people in California or
somewhere else how to do their voting laws, but that just is
something that is not appropriate here. And this would require
ballots to be postmarked up until election day, correct?
Mr. Smith. That's correct.
Mr. Armstrong. So, when we are implementing laws at the
Federal level to deal with perceived or real problems in other
areas of the country, I think we run into serious concerns
about particularly rural districts who deal with these issues.
Right now in our State legislature, we have a bill moving in
place where county auditors and State legislators are dealing
with voting precincts in particular counties, and it's a very
unique North Dakota problem. And I would just caution everybody
here to remember that those issues and those challenges are
better suited to be dealt with by the people who are closest to
their communities and dealing with the issues we face.
And when we deal with these laws at this level, we turn
this into something that we can't control at our local level.
And we have unique challenges in North Dakota that other people
don't.
Mr. Smith. It's worth noting, Mr. Armstrong, that there
actually are no Federal elections; there are States elections
for Federal office, and you made that point very well.
Mr. Armstrong. I yield back.
Mr. DeSaulnier. Thank you, Mr. Armstrong. The gentleman
from Maryland, Mr. Sarbanes.
Mr. Sarbanes. Thank you, Mr. Chairman. I want to thank the
panel.
I wish Congressman Meadows were still here because I'm
delighted that he's thinking of stepping into the small donor
matching system that is proposed in H.R. 1. Because when you
step into that system, you step into a system that is owned by
the people. This is why it's in the bill because the public is
tired of feeling like their elections, their system, their
government, their democracy is owned by special interests, big
corporations, Wall Street, oil and gas industry, super-PACs,
lobbyists, everybody but them. This is the power move. They
want to own their democracy again. And all across the country,
as you pointed out, citizens are stepping up and taking that
power back by creating these systems where they're the owners,
the rightful owners of their own democracy. And they can get
that back, Mr. Mehrbani, I think you said, for a dollar a
year--$1 a year.
Mr. Mehrbani. That's right.
Mr. Sarbanes. Per citizen. To ransom your democracy back
from the people who have taken it hostage, so you can call the
shots. So I would love for Congressman Meadows to step into
that system. I'd like every Member--it's a voluntary system;
you don't have to do it. But I'd like every person to step into
that system because that's owned by the people. That's the
whole idea.
People are sick and tired of being sick and tired, to use
Fannie Lou Hamer's words, at a system that is run by somebody
else. So that's the argument for that system. Now, let me get
to a couple of other things that have been mentioned here in
the three minutes and 15 seconds that I have.
Somebody said at the outset that this was theater. I think
the ranking member said maybe it was theater. This is not
theater. We're trying to set the table on the democracy, make
people feel more empowered, like their voice counts and they're
not locked out and left out of their own democracy and their
own government and their own republic. That's why we're doing
this.
Somebody said, why are we hooking all these things
together? Voting, ethics, campaign finance. Because the people
have told us: If you just do one and you don't do the others,
we're still frozen out; the system is still rigged. You fix the
voting stuff, but if you go to Washington and nobody is
behaving themselves, that doesn't solve the problem. Or you fix
the ethics part, but we're still--the system is still owned by
the big money and the special interests because they're the
ones that are underwriting the campaigns, then we're still left
out; the system is still rigged. You got to do all of these
things together to reset the democracy in a place where it
respects the average citizen out there, who right now is
sitting in their kitchen, they're looking at the TV screen,
they're hearing about billionaires and super-PACs who are
making decisions inside conference rooms somewhere on K Street
that affect their lives. And all they're saying is: We want
back in. We're tired of sitting out here with our noses pressed
against the window looking in on the democracy that we have no
impact on. That's why we're linking all of these things
together: to reset the table so the special interests aren't
the ones that are calling the shots.
Is voter fraud the problem? Mr. Smith would think you--
would have you think so. Voter fraud is not the problem. We
know the statistics on voter fraud; they're microscopic. Voter
suppression is the problem, the obstacle course that has been
set up that makes it so difficult for people to register and
get to the polls, and then it demoralizes them. And they stay
home; it's not worth it.
We have to fix that. As Congressman Cummings said, that's
the baseline. The most powerful form of protest and engagement
an American citizen has is the right to vote. But too many
people in too many parts of this country still can't get to the
ballot box. That's all it's about: Coordination. Violating free
speech. We can have sensible coordination rules so the super-
PACs aren't coordinating with candidates and violating the
campaign contribution limits and so forth. We can do that. We
can protect free speech while actually giving more speech back
to people who are denied it right now. That is not a problem.
We're not outing donors. The provisions of transparency in
this bill are targeted to mega donors who give more than
$10,000, who right now are hidden behind this Russian doll kind
of structure where you can't see who it is. Who's behind the
curtain? Who's putting all this money in the campaigns? The
public wants to know that. That's reasonable. Let them see
what's happening to their own democracy and give them their
power back. That's what H.R. 1 is, For the People. That's how
we designed it.
Mr. Smith. Mr. Chairman.
Mr. Armstrong. I yield back my time.
Mr. Smith. Mr. Chairman, if I may, because Mr. Sarbanes
specifically referenced something and said that I said this.
Mr. DeSaulnier. Very quickly.
Mr. Smith. In a very loud voice. I have not addressed the
question of voter fraud. That's not what the Institute for Free
Speech does. And I just want to make that clear that he's
imputed to me comments that I did not make.
Mr. DeSaulnier. Thank you, Mr. Smith.
Mr. Grothman from Wisconsin.
Mr. Grothman. A few questions. I'll start out with Mr.
Smith again since he's all warmed up. H.R. 1 is a big bill, and
it takes a lot of time to go through it. Do you think the
public will be able to read and understand how this bill
affects their ability to participate in political discourse?
Mr. Smith. I'm sorry. I didn't quite catch the operative
verb in that question. Was it----
Mr. Grothman. Do you believe members of the public will be
able to read and understand----
Mr. Smith. I don't think they would have the faintest idea.
Again, one of the problems anytime I think you put together a
570-page sort of omnibus bill is that it becomes very hard for
people to grasp what it is that's going on, including I would
suspect Members.
Mr. Grothman. Do you think more careful drafting could
solve that problem?
Mr. Smith. Well, I think that splitting the bill up would
allow it to be considered in its component parts, and people
might decide some parts are worth keeping and some are not. I
think do think there was a certain amount of carelessness in
drafting or, again, perhaps some disingenuity. I mean, when you
have a section titled Preventing Super PAC-Candidate
Coordination that applies to every citizen in the United
States, not just super-PACs, that seems to be some kind of
drafting problem.
Mr. Grothman. Okay. Just a general question. You know, I
can't tell you--you know, probably the most powerful special
interest in every election is the media. And I can't tell you
how many times I'm told: You know, you can do this or you can't
do that because this is the way it's going to be spun in the
newspapers or spun on TV.
I don't have an answer to this question, but when I look,
there's a study that shows--when you look at like journalism,
communication, tenure-track professors, 20 Democrats for every
1 tenure-track position. And it just dominates this building as
people try to form their press releases or Statements not to
get in trouble with the media.
Do any of you have any suggestions as to what we can do, or
is it just something we're going to have to deal with a
situation in which apparently 95 percent of the professors,
tenure-track professors in journalism and communications, where
the people who, you know, determine how what we do here is
reported, are Democrat in nature. Does anybody have any--would
you agree with me that it's hard to have fair elections as long
as that happens, and is there anything we can do about it?
Mr. Smith. It's clear--I'll go ahead and take the first
stab at it. It's clear that the media has a tremendous amount
of influence in elections, and they remain largely unregulated
by this. And I'm not sure that you decrease that influence by
putting limits on what groups of people can say and what
citizens, you know, in the country operating through the groups
they join can say and do.
I will personally say and I have often said in the context
of elections, is the current system perfect? Is it perfect to
have a system in which people are relatively free to
participate and give money? Well, it's not perfect, but as
Churchill once said, it seems to be better than all of the
alternatives. And that's somewhat true here as well. As much as
the biased media may be a problem, the alternatives are
probably not better. And I think this is something that each
side would do very well to remember from time to time: that the
world is not perfect and we're not going to have perfect
elections. We try to do the best elections we can, and for most
of our history, that has meant entirely unregulated elections,
and I don't think we have much to show for the last 40 years of
very heavy regulation.
Mr. Grothman. I agree with you. The government shouldn't be
weighing in on regulating what people can say or what type of
people are hired, but given that I assume the majority of these
tenure-track people work for public universities, I just
wondered if there's a--I mean, a lot of people feel there is an
unfairness out of there, you know, that you have to overcome
not only your opponent, but the mainstream media. No one knows
suggestions how to deal with it.
Okay. I'll go to something else, and people always ask me
why we don't talk about this: the influence of money in
elections. During the last administration, we had a situation
in which the Secretary of State's husband was paid a half a
million dollars on a speech in Russia. And, you know, I don't
think there'd be any question if the Secretary of State herself
had accepted $500,000, but do you think that we should begin to
regulate the size of checks people are getting from spouses of
relevant figures? Would that cause people to have more
confidence in what goes on?
Mr. Smith. I always think the detail or the devil is in the
details, but I will say that too often the response has been to
put limits on the American people, you know, rather than say
maybe the limit should be on the people who are actually
serving in government, including their families having to give
something up.
Mr. Grothman. Okay. Thank you very much.
Mr. DeSaulnier. Thank you.
Next up is the gentlelady from California, Ms. Speier.
Ms. Speier. Thank you, Mr. Chairman.
This is a great segue. Mr. Smith just suggested that maybe
the families of people in government should have some
restrictions on their income. And I'd like to draw attention to
Mr. Shaub, who has been of great service to our country, and to
all of you for your presentations here today.
But Ivanka Trump, who last I noted was the daughter of the
President of the United States, has businesses. And she was
granted 34 trademarks in China after her father was elected and
she became a member of the administration. These trademarks
were granted during a period of economic tension between the
United States and China and coincided with the Trump
administration's lifting a ban on U.S. sales of technology to
Chinese firm ZTE, which violated U.S. sanctions with illegal
sales to Iran.
Mr. Shaub, what are the risks to the American people about
these kinds of conflicts of interests?
Mr. Shaub. Well, I think these and all conflicts of
interests create the risk of a divided loyalty. The American
people ought to be able to confidence that their leaders in
Washington are serving their best interests and not their own
person financial interest. I think the situation got worst when
the President departed from past traditional interpretation of
the nepotism law, which for 50 years and at least I believe
four OLC pieces of guidance had told President's they couldn't
do that, and the consequence has been that she's been allowed
by the White House to retain the types of assets that even this
White House is not allowing other people other than her husband
to retain.
Ms. Speier. So strengthening the antinepotism laws would be
a key component if we're trying to clean up the mess that is in
the White House right now?
Mr. Shaub. I absolutely think so.
Ms. Speier. Thank you.
Mrs. Flynn, I serve on the Intelligence Committee, and I'm
deeply troubled at what appears to be Russian engagement
through 501(c)(4)'s in this country, whether it's the NRA or
other nonprofits that are created for the express purpose here
in the United States to lobby on behalf of Russia as it related
to the Magnitsky Act.
So right now there is no limitation on how much money can
be contributed by a foreign government entity to a 501(c)(4).
Is that correct?
Mrs. Hobert Flynn. I believe that is, yes.
Ms. Speier. And there is no disclosure required as well. Is
that correct?
Mrs. Hobert Flynn. I believe that's right.
Ms. Speier. So, in your estimation, would it be prudent for
us to, one, limit the amount of contributions that a foreign
individual can make to a 501(c)(4) and, two, that all of that
be subject to disclosure?
Mrs. Hobert Flynn. I think it would be very important--you
know, there are limits--there are bans on foreign nationals
giving money in campaign contributions, and I think we should
be looking at those kind of limits for--and then certainly
disclosure for contributions to 501(c)(4)'s.
Ms. Speier. There are four Cabinet officials in this
administration--the Secretaries of Health and Human Services,
Veterans Affairs, Interior, and the EPA Administrator--who have
all resigned amid evidence that they had forced American
taxpayers to foot the bill for extravagant and unnecessary
travel expenses.
And I would like to ask Mr. Mehrbani if you can speak to
the impact these resignations have had on the ability of the
executive branch agencies to function effectively and how we
can relieve ourselves of the abuse that some of these
Secretaries of various Cabinet posts were engaged in?
Mr. Mehrbani. Thank you. I'm going to refer back to
something that I think multiple members of this panel said
earlier, which is that leadership on ethics issues really sets
the tone, from my experience, for the rest of staff at an
agency. And that leadership should actually be coming from the
White House. And there have been multiple practices over,
spanning multiple decades by Republican and Democratic
administrations and Presidents that have done just that to make
sure that they are avoiding even the perception of a conflict
of interest or using their position for private gain. That's a
bedrock principle in our democracy. And the bill, the H.R. 1,
enshrines many of these practices into law and I think would
serve as the good first step for preventing some of what we've
seen over the last couple of years.
Ms. Speier. I yield back.
Mr. DeSaulnier. Thank you.
I now recognize Mr. Higgins from Louisiana.
Mr. Higgins. Thank you, Mr. Chairman.
Mr. Chairman, in the spirit of bipartisanship, let me say I
agree that H.R. 1 should be divided into its component parts
because perhaps it could be argued that there's some worthwhile
legislation written in here. But as a totality of circumstance,
one word describes this thing: wrong. Just wrong.
This bill is exactly reflective of why our Founding Fathers
passionately debated after the Revolutionary War prior to the
formation of our Federalist Society and central government, it
passionately debated whether or not this thing could even work.
If we could have a Federalist Society and a union of States
with a strong central government and still maintain individual
rights and freedoms.
My colleague across the aisle mentioned Russia. Russia has
been mentioned several times today. This bill resembles Russian
Government policy. Most of us here have taken an oath before we
became Congressmen and Congresswomen. I took an oath as an Army
soldier. I took an oath as a police officer, a sheriff's
deputy. You panelists before us are courageous to come before
this committee where many very serious decisions will be made,
debates shall be engaged. But most of you have taken an oath as
well.
And may I say that the oaths that I took in my life were
not to a company commander or a general or a sheriff or a chief
or a marshal; they were to the Constitutionalist principles
that my oath represented.
Mr. Smith, does our First Amendment protect freedom of
speech?
Mr. Smith. I think that goes without saying.
Mr. Higgins. Does H.R. 1 abridge the freedom of speech?
Mr. Smith. Pardon. Pardon, I didn't hear that.
Mr. Higgins. Would you agree that H.R. 1 abridges the
freedom of speech?
Mr. Smith. Oh, yes, yes.
Mr. Higgins. Absolutely. It gives almost total partisan
government control over the freedom of political speech in a
representative republic where these freedoms have been paid for
by the blood of patriots past. Are we worthy to be the
Americans that occupy this body? Did our Founders intend, Mr.
Smith, for there to be an expiration date on our First
Amendment rights? Any panelist?
Mr. Smith. No.
Mr. Higgins. Of course not. That expiration date will come
if H.R. 1 passes.
Mr. Smith, I'd like to ask you, according to the tone that
my colleagues have expressed here, Americans watching this
would think that they stand for the abolishment of big money in
political campaigns. According to my research, the Association
of Trial Lawyers gave Democrat candidates in 2018 $2.2 million
while they gave Republicans candidates about 130 grand. This is
not a bill of the people, by the people, and for the people;
it's a bill of trial lawyers, for trial lawyers, and by trial
lawyers.
It greatly restricts the freedoms of speech of Americans
assembled as nonprofit organizations or individual citizens. It
hides behind titles that are quite misleading in an era when we
know that many Americans that have the right to vote yes, but
don't get past headlines.
I'd like to specifically ask in my time remaining, Mr.
Smith, for you to address, explain to us all, please, what
coordinated spenders are--this is quite troubling to me. I've
read your testimony and those of your colleagues, the
panelists. Incorporated nonprofits, defined as coordinated
speakers, would be banned from spending money on speech.
This is directly contrary to judicial decisions past.
Please, in my remaining time, 40 seconds, explain to America
what that is.
Mr. Smith. In my prepared remarks, I have a number of
examples, and the way this works is, of course, most groups
that people belong to, the ACLU, the NRA, Right to Life,
Planned Parenthood, the NAACP, are incorporated, and if
corporations can't make any coordinated expenditures because
those are treated as contributions--and so just to give some
examples, if a member were to purchase a ticket to a fundraiser
for one of these organizations for $100 or $150 and, five years
later, that member declared his candidacy for the Senate, that
organization could not make any expenditures, not only directly
advocating his election or defeat, but even talking about the
candidate in ways that might be deemed by someone to be----
Mr. Higgins. In my remaining 5 seconds, yes or no, would
this have a chilling effect on the freedom of speech of
Americans assembled from sea to shining sea?
Mr. Smith. Absolutely.
Mr. Higgins. I yield back, Mr. Chairman.
Mr. DeSaulnier. I thank the gentleman. I thank you for
taking our allotted time.
I now recognize myself for five minutes.
This is a fascinating conversation. I want to thank Mr.
Sarbanes for his leadership on this. He's put incredible hours
into it, and I appreciate it. I've seen him in action across
the country talking to electeds of both parties.
What this really is about is power. Mrs. Hobert Flynn, in
1970, when John Gardner started your organization, a Republican
who served a Democratic administration, it was about power
then; it's about power now. And we've grown. Clearly, there is
growing research that says that Congress does not reflect the
average person, and it reflects more people who contribute and
have influence on both sides.
From my opinion and many others, that has contributed
significantly to our income inequality and the lack of
opportunity, particularly for younger people. Would you address
sort of the historical perspective from Common Cause and John
Gardner's admonition, which is, as you recall, holding power
accountable over time?
Mrs. Hobert Flynn. Yes. Thank you. You know, the challenge
here is that what we're talking about is the ability of wealthy
interests to speak louder than the rest of the American people,
and that's what we object to. What we are doing is not actually
putting in place anything that violates anybody's freedom of
speech. We're talking about simple things like disclosure, a
voluntary system of small donor reform.
Candidates do not have to participate. And the fact is, you
know, how this will be funded depends on the system. In
Connecticut, they used unclaimed assets to fund the public
financing system. The difference is that people who are not
wealthy and not connected to special interests can run for
office. They have a competitive chance. They don't have to be
connected to wealthy interests. And then, once elected, they
are free to serve based on what their constituents want, and
they don't have wealthy interests coming up and saying: Hey,
this is what I need you to do; I need this tax break or
something else.
It frees them.
And so what you see in those kinds of systems is that
people govern differently. I saw a palpable difference with
lobbyists who were treated by freshman who ran under the
program, they didn't think they were powerful; they treated
them: You can tell me information, but you have no control, no
monetary control.
So they can enact what is best in the best interests of
their citizens.
Those are the kinds of things we need to look at. A
comprehensive approach also deals with ethics. So you may have
this system set up that people can choose to run in or not, but
if, in the end, they're taking money through the backdoor and
gifts and money that goes to their businesses, they still could
have corruption problems. So you need to look more broadly at
these issues.
You also need not only to lift the voice of small donors
but lift the voice of all Americans so that they can vote and
have a voice in their democracy. And so that's why you see
these voting measures that are so incredibly important to make
it easier, and actually it ends up saving money when you move
to online voter registration. There are checks in place so that
you're not capturing illegal immigrants in voting.
So what we want to see is a chance to have, you know,
independent agencies, and the Federal Election Commission is
one that is flawed, that has not worked, and you've had
Republicans block enforcement of the law. We need agencies that
enforce the law with integrity. And so you can have things like
blue ribbon commissions like they talk about in this bill.
There are other models to look at in Wisconsin with the
Government Accountability Board; in Connecticut, with
bipartisan and independence involved. So it is a holistic
approach to try and ensure that people's voices are heard in
our democracy.
Mr. DeSaulnier. Just an editorial comment. I'm constantly
reminded as a former history major, the history around us when
Teddy Roosevelt talked about the malefactors of great wealth,
and the influence of trusts in the Congress. And what that led
to is the inequality that we now rival at this point in time.
Mr. Shaub, just briefly, could you elaborate on the
positive aspects of making you, your former position, directly
be able to respond, to report to Congress and some trouble we
have had with OGE getting written responses that both the
Republicans and Democrats have been frustrated by?
Mr. Shaub. Yes, I think one of the problems is that OGE's
two sister agencies, the Merit Systems Protection Board and the
Office of Special Counsel, can communicate directly with
Congress, but OGE has to go through the political approval
process through the White House's Office of Management and
Budget, which means that OGE doesn't have the ability to alert
Congress of problems or give them answers to the information
they're seeking. And we've seen inspectors general and those
other two agencies I've mentioned use this ability to great
effect to protect the government's integrity.
Mr. DeSaulnier. Thank you.
I yield the remainder of my time. Our next speaker is Mr.
Gibbs from Texas--Ohio.
Mr. Gibbs. Ohio. Texas is a great State, though.
Mr. DeSaulnier. It's hard to miss. Ohio.
Mr. Gibbs. Thank you to our witnesses. First of all, I want
to say, on Ohio, I think the process is working pretty good. I
know Mrs. Flynn talked about long lines. A number of years ago,
when I was in the State senate, we passed some legislation, no-
excuse absentee ballots; voting, you can get 30 days before the
election. A lot of people are doing that. You don't--so there's
no--we don't have lines anymore, and we don't need a Federal
holiday so you can go vote. You got 30 days to go vote. If you
can't vote in 30 days by mail or by absentee, that just raises
a lot of interesting questions about your voting, your
abilities.
Also, in Ohio, the secretary of State, the practice has
been to send out two or three weeks before absentee ballots
will be mailed out to every registered voter in Ohio saying:
Hey, if you want to let us know; here is an application for an
absentee ballot. Send it in; we'll send you an absentee ballot.
Pretty simple.
So, Mr. Smith, going through, I got some questions here. It
is my understanding that this bill authorizes a three-judge
panel here in the U.S. District Court in the District of
Columbia to redraw congressional districts in the States. Is
that in the bill?
Mr. Smith. I believe that's correct, but again, that's
outside of the area that I'm most focused on.
Mr. Gibbs. Okay. It's just bizarre that we have federalism
and States' rights, that we'd have a three-judge panel here in
Washington, DC, a one-size-fits-all for all the rest of the 50
States. So that's a big problem with the bill.
Also, as we have a discussion that authorizes Federal
employees, the poll workers, and pay them and all that. We
obviously don't need that in Ohio. We have a good system, a
bipartisan system. And every county board has two Republicans,
two Democrats, and at every precinct that the polls workers,
it's 50/50 bipartisan. When they count the ballots, it's all
bipartisan, and that's probably why you haven't heard a lot of
problems in Ohio, like other States.
Mr. Gibbs. You know, it's also interesting what we saw--
what the IRS did a few years ago targeting conservative groups.
Mr. Smith, do you think that this bill would actually open up a
can of worms or give more empowerment to bureaucrats here in
Washington, DC, where we can see abuse of that type in the
future?
Mr. Smith. We often say, you know, the purpose of
disclosure is for the people to monitor their government, but
it's not for the government to monitor their people. And this
gives a lot more information to government. And a lot of it is
intended, you know, opens up the possibility of that sort of
retaliation or, alternatively, the online harassment and so on
that private individuals can engage in.
Mr. Gibbs. I appreciate that.
Mr. Smith. That's a long way of saying yes.
Mr. Gibbs. I got that. Also, in the bill, as was talked up
by my colleague Mr. Meadows from North Carolina, the 6-to-1
payment of Federal taxpayer dollars. So, if you have a $200
contribution, you get $1,200 taxpayer dollars. I don't see how
that is a good thing, where in the Constitution or anywhere it
says that. I could be a taxpayer; I don't want my money going
to my opponent, say, my tax dollars. So it's a big fundamental
problem with that. I have major concerns, and I think that
opens up a can of worms that is really a huge problem.
I also wanted to ask: You hear so much attack on political
action committees, PACs. Mr. Smith, you may be the best one to
answer this, I don't know, anybody that wants to answer it.
Where do political actions committees get their money?
Mr. Smith. Political action committees get their money from
individuals, traditional PACs do. Now, super-PACs, as they're
called, can take money from corporations and unions, but they
are not able to contribute directly to candidates or to
coordinate anything with candidates.
Mr. Gibbs. I appreciate that. I make the point because I
got attacked because I take political action money, but it
comes from businesses in my district, a lot of it. It comes
from associations. You know, everybody has somebody lobbying
for them in D.C. If you're a member of a retirement
association, any organization, you got a lobbyist here.
Mr. Smith. And to be more precise, if I could interrupt,
Congressman. It actually comes from the involuntary
contributions from the employees of those businesses and trade
associations.
Mr. Gibbs. That's absolutely right, unlike another entity
on the labor side that's not voluntary. So that's a point that
I think is really important that needs to be made, that this
money is coming--that people voluntarily support, they could be
insurance agents supporting the company they work for; they
could be members of a farm organization, supporting what the
organization is out there advocating for, and they support
that. If they didn't support it, they wouldn't give the money
because it's voluntary. So this attack on this and then to put
the provision in this bill, if you take political action
money--I believe it's in the bill--you don't get the 6-to-1
match. I believe that's correct in the bill. So it's definitely
a partisan bill and targeted for their partisan activities.
I yield back.
Mr. Sarbanes.[Presiding.] The chair recognizes Ms. Ocasio-
Cortez for five minutes.
Ms. Ocasio-Cortez. Thank you, Chair. So let's play a game.
Let's play a lightning round game. I'm going to be the bad guy,
which I'm sure half the room would agree with anyway, and I
want to get away with as much bad things as possible, ideally
to enrich myself and advance my interest, even if that means
putting my interests ahead of the American people.
So, Mrs. Hobert Flynn--oh and, by the way, I have enlisted
all of you as my coconspirators, so you're going to help me
legally get away with all of this. So, Mrs. Hobert Flynn, I
want to run. If I want to run a campaign that is entirely
funded by corporate political action committees, is there
anything that legally prevents me from doing that?
Mrs. Hobert Flynn. No.
Ms. Ocasio-Cortez. Okay. So there's nothing stopping me
from being entirely funded by corporate PACs, say, from the
fossil fuel industry, the healthcare industry, Big Pharma; I'm
entirely 100 percent lobbyist PAC funded. Okay. So let's say
I'm a really, really bad guy, and let's say I have some
skeletons in my closet that I need to cover up so that I can
get elected.
Mr. Smith, is it true that you wrote this article, this
opinion piece for The Washington Post entitled ``Those payments
to women were unseemly. That doesn't mean they were illegal''?
Mr. Smith. I can't see the piece, but I wrote a piece under
that headline in the Post, so I assume that's right.
Ms. Ocasio-Cortez. Okay. Great. So green light for hush
money. I can do all sorts of terrible things. It's totally
legal right now for me to pay people off. And that is
considered speech. That money is considered speech. So I use my
special-interest-dark-money-funded campaign to pay off folks
that I need to pay off and get elected.
So now I'm elected, and now I'm in, I've got the power to
draft, lobby, and shape the laws that govern the United States
of America. Fabulous.
Now, is there any hard limit that I have, perhaps Mrs.
Hobert Flynn, is there any hard limit that I have in terms of
what legislation I'm allowed to touch? Are there any limits on
the laws that I can write or influence, especially if I'm--
based on the special interest funds that I accepted to finance
my campaign and get me elected in the first place?
Mrs. Hobert Flynn. There's no limit.
Ms. Ocasio-Cortez. So there's none. So I can be totally
funded by oil and gas. I can be totally funded by Big Pharma,
come in, write Big Pharma laws, and there's no limits to that
whatsoever?
Mrs. Hobert Flynn. That's right.
Ms. Ocasio-Cortez. Okay. So--awesome. Now, Mr. Mehrbani,
the last thing I want to do is get rich with as little work
possible. That's really what I'm trying to do as the bad guy,
right? So is there anything preventing me from holding stocks,
say, in an oil or gas company and then writing laws to
deregulate that industry and cause--you know, that could
potentially cause the stock value to soar and accrue a lot of
money in that time?
Mr. Mehrbani. You could do that.
Ms. Ocasio-Cortez. So I could do that. I could do that now
with the way our current laws are set up? Yes?
Mr. Mehrbani. Yes.
Ms. Ocasio-Cortez. Okay. Great.
So my last question is--or one of my last questions, I
guess I'd say, is it possible that any elements of this story
apply to our current government and our current public servants
right now?
Mr. Mehrbani. Yes.
Mrs. Hobert Flynn. Yes.
Ms. Ocasio-Cortez. So we have a system that is
fundamentally broken. We have these influences existing in this
body, which means that these influences are here in this
committee shaping the questions that are being asked of you all
right now. Would you say that that's correct, Mr. Mehrbani or
Mr. Shaub?
Mr. Mehrbani. Yes.
Ms. Ocasio-Cortez. All right. So one last thing.
Mr. Shaub, in relation to congressional oversight that we
have, the limits that are placed on me as a Congresswoman
compared to the executive branch and compared to say the
President of the United States, would you say that Congress has
the same sort of standard of accountability, is there more
teeth in that regulation in Congress on the President, or would
you say it's about even or more so on the Federal?
Mr. Shaub. In terms of laws that apply to the President?
Ms. Ocasio-Cortez. Uh-huh.
Mr. Shaub. Yes, there's almost no laws at all that apply to
the President.
Ms. Ocasio-Cortez. So I'm being held and every person in
the body is being held to a higher ethical standard than the
President of the United States?
Mr. Shaub. That's right because there are some Ethics
Committee rules that apply to you.
Ms. Ocasio-Cortez. And it's already super legal, as we have
seen, for me to be a pretty bad guy. So it's even easier for
the President of the United States to be one, I would assume?
Mr. Shaub. That's right.
Ms. Ocasio-Cortez. Thank you very much.
Mr. Sarbanes. Mr. Roy of Texas is recognized for five
minutes.
Mr. Roy. Thank you, Chairman.
Mr. Smith, I wondered if you might have any comments on the
questioning by my colleague from New York. You seem to have a
few notes you were writing down. Do you have anything you want
to say after that discussion?
Mr. Smith. Well, I would say there are a couple things, for
example, that would not be--she asked, is there anything that
could apply here? There are certain things that could not apply
here. For example, the whole point of article that she held up
that I wrote said that you cannot use your campaign funds to
make those kinds of payments; that would be illegal personal
use.
Campaign funds are not dark money. They are totally
disclosed, so they are not dark money. It's worth noting, by
the way, that earlier it was mentioned that dark money
constituted about $1.7 billion. I believe that figure is
incorrect by a factor of about a 500 percent. Dark money
constitutes about 2 to 4 percent of the total spending in U.S.
elections and has always been involved in U.S. elections.
So those are just a couple of points. I did kind of chuckle
at the question, is it possible--asked of us--that these
influences are--that this money is influencing the questioning
here. To that, I'd say that's something you have to ask
yourselves if you're being influenced and see what you think.
If you are, you might question yourselves. If you're not, you
might question this hearing.
Mr. Roy. A couple of questions about super-PACs, as they
are often referred to. Are Federal candidates allowed to
coordinate directly with the super-PAC or have anything to do
legally with its formation?
Mr. Smith. No, they are not at the current time.
Mr. Roy. With respect to super-PACs, is this a particularly
partisan problem, or would you say both parties have super-PACs
funding elections and funding candidacies?
Mr. Smith. Both do, I believe. I'm not 100 percent sure on
this. I believe historically they have leaned more Republican
but in the last election cycle leaned more Democratic. I'm not
100 percent sure of that, but it's certainly a bipartisan
issue.
Mr. Roy. So, if we deploy the famous ``let me google that
for you'' and we got this to come up to say, well, a bunch of
headlines you googled that say Democrat super-PAC spending $3
million for Menendez in New Jersey; super-PAC money dominated
2018 election in Colorado, and Democrats controlled in the cash
race; Democratic super-PAC translates ads to Spanish after
seeing election day search trends, and if we went through and
through and through, we would see that this is not a
particularly partisan question or problem; it's just a
baseline. Is that right, Mr. Smith?
Mr. Smith. I think that's right.
Mr. Roy. And when we think about what we're dealing with
with respect to campaign finance, are you familiar with doxing?
Mr. Smith. In the sense of outing people online, if that's
what you're referring, yes, generally.
Mr. Roy. So, for example, are you familiar with a Twitter
account called Every Trump Donor?
Mr. Smith. No, I'm not.
Mr. Roy. Which tweeted out one by one the names, hometowns,
occupations, employers of people who contributed as little as
$200 to the President's campaign, each tweet following a
particular formula. My point being and the question for you is:
When we talk about campaign disclosures, are we aware of the
negative impacts that you have on forcing American citizens in
exercising their free speech to have that information be
disclosed? Whether that's good policy or not might be
debatable, but are there negative consequences to that with
respect to free speech, given you're an expert on free speech?
Mr. Smith. There are. And there are definitely studies that
have shown that disclosure does tend to decrease participation.
Now, that doesn't mean, as you point out, that it's not worth
it, but it certainly has costs. So we have to be careful in how
broad we let that disclosure become.
Mr. Roy. Thank you.
Mrs. Hobert Flynn, just a quick question. Did I hear
correctly earlier in one of your exchanges with one of my
colleagues here that you consider proof of citizenship as one
of the barriers to voting or one of the obstacles for people to
be able to vote, a proof of citizenship, is that one of the
ones that you outlined?
Mrs. Hobert Flynn. Yes. That it appeared--it is used, you
know, at many polling places that people just attest to that.
To have to come up with the paperwork is a burden for many
Americans.
Mr. Roy. As well as you outlined photo ID, early voting
changes, if you're restricting early voting from being longer
to shorter and election day registration, that's the position.
And the reason I ask is because, when we look at obstacles to
voting, we know that the Voting Rights Act was a paramount
piece of legislation to ensure people have access to the polls.
We also know that the Voting Rights Act ran into constitutional
problems in Shelby County v. Holder, for very good reason. If
you look at what the majority wrote, the Voting Rights Act of
1965 employed extraordinary measures to address an
extraordinary problem, in the face of unremitting and ingenious
defiance of citizens constitutionally protected right to vote,
section 5 was necessary to give effect to the 15th Amendment in
particular regions of the country. This is South Carolina v.
Katzenbach.
And today, this is now Justice Thomas writing in a
concurrence: Today our Nation has changed. The conditions that
originally justified section five no longer characterize voting
in the covered jurisdictions.
Mr. Smith, are you aware that, in this legislation, there
is an attempt to bring section 5 back with respect to
preclearance, and could you comment at all on that and what
that might mean?
Mr. Smith. As you are out of time, I'll just note that,
yes, that is true. And I think that the Supreme Court's concern
was that the formula applied from data from 1964 and simply
needs to have updated to reflect modern realities, and this
bill I don't believe makes any effort to do that.
Mr. Roy. That is correct. Thank you.
Mr. Sarbanes. Congresswoman Pressley of Massachusetts is
recognized for five minutes.
Ms. Pressley. Thank you very much, Mr. Chairman.
This has been a very interesting hearing. Charges of
radicalism, accusations of motives of partisanship, but never a
peep or outrage about partisan gerrymandering which has
benefited your party for decades. That is really convenient and
rich and hypocritical.
H.R. 1 has been described as a wish list by the Democrats.
Well, you've got us there: a wish list for an inclusive
expanded democracy and electorate.
Characterizations of H.R. 1 as a power grab. You got us
again. Guilty. We wouldn't have to grab back the power for the
people if through policy you weren't complicit in or
perpetuating the disenfranchisement and marginalization of the
people and disproportionately people of color and
disproportionately Black people.
Representative John Lewis reminds us that if your vote
didn't matter, they wouldn't work so hard to take it from you.
This is the House of Representatives. We are sent here as
Representatives of our districts and a greater democracy. And
at the core of democracy and the root word of ``demos'' is to
engage more voices, to engage more voices and to empower them
in this democracy.
I am really at a loss for words. I am embarrassed and hurt
by the dog whistles, by the vitriol and the venom in this
space, and the smugness. It is stunning and unconscionable.
Disappointment and outrage about a Federal holiday for
election day, early voting, and mail-in voting, the rights of
formally incarcerated restored. According to the Sentencing
Project, 6.1 million Americans have lost their right to vote
due to felony disenfranchisement laws, laws that
disproportionately impact communities of color.
Ms. Flynn, the United States ranks 26th among the lowest of
all established democracies around the world in voter turnout.
Certainly belies characterizations of American exceptionalism.
Could you speak to the passage of H.R. 1 and the establishment
of a Federal voting holiday, how this would help to broaden
turnout, particularly for voters who have historically been
disenfranchised? Could you also speak to how many developed
countries follow this practice, and how it has impacted their
turnout?
Mrs. Hobert Flynn. Yes. I apologize. I do not have
information--but I will share it with the committee--about
other countries. But I will say that a Federal holiday can make
a huge difference for many Americans who cannot afford to take
a day off of work to get to the polls, or as we have seen,
Common Cause and the Lawyer's Committee and many other voting
rights groups, to election protection during the election
season. And we saw long lines in States across the country.
We had machines that were breaking down or switching votes.
We had machines that did not work, and so people have long
lines. People cannot afford--many people cannot afford to wait
in line for three, four, five hours at a polling place. Many
have to get back to work.
Ms. Pressley. Thank you.
Mrs. Hobert Flynn. So a Federal holiday would make a big
difference.
Ms. Pressley. Thank you very much.
Mr. Amey, so we have spoken a great deal about lobbying
corruption. I'd like to speak about the corruption of
contractors. Mr. Amey, in your written testimony, you discuss
the crisis of the rampant revolving door where ranking
officials commonly enter cushy jobs for the very contractors
they were charged with overseeing on behalf of taxpayers.
Last year, your organization issued an investigative report
that Tracey Valerio, former senior official for ICE, less than
three months after leaving government service, she was hired by
the GEO Group, ICE's largest single private prison and
detention center, which brought in more than $327 million in
the last year alone. She even served as an expert witness for
the company in a lawsuit that alleged violations of minimum
wage laws and other inhumane treatment of immigrant detainees.
Mr. Amey, in your expert opinion, is it ethical for a
senior government contracting office to go work for the very
entity she was overseeing just months before?
Mr. Amey. The quick answer is no. And that's--the law is
created that has cooling-off periods, and so there's no
cooling-off period, a one-year, a two-year, or a permanent ban.
H.R. 1 would move a lot of those to two years, I think which
would be beneficial. There's even disagreement in our community
whether one year--you know, what is the appropriate time to
kind of cool off so that your contacts aren't there?
But this is also something that President Trump brought up.
When he was a candidate, he talked about, I think it was Boeing
at the time, but he went on record saying that people who give
contracts should never be able to work for that defense
contractor. This isn't a bipartisan--this is a bipartisan
issue. This is something we can resolve. The laws are already
on the books. We just need some extensions and some tweaking of
those to improve them and allow people to cool off and not be
able to provide a competitive advantage to their new employer
or favor them as they're in office and they're walking out the
door.
Ms. Pressley. So you do believe that extending this
cooling-off period and strengthening these prohibitions would
protect the integrity of the process and help to rein in these
flagrant abuses?
Mr. Amey. One hundred percent. And one of the nice things
with H.R. 1 is there's an extension of a cooling-off period for
people coming into government service. Currently it exists, and
it's one year. This will move it to 2, and I think that's
probably a better place to be, that you shouldn't be handling
issues that involve your former employer or clients.
Ms. Pressley. One final question. How might these cozy
relationships between government officials and corporate
leaders or private contractors help to boost profits for these
prison and detention centers?
Mr. Amey. Well, certainly they go with a lot of information
when they go over to the private sector, but it also allows
them to get back into their former office and within their
former agency and call on them. As you were just pointing out,
access is everything in this town. And so if you can get your
phone calls answered, if you can get emails read, if you can
get meetings, at that point, not only with Members of Congress
but with agency heads, that can determine who gets contracts. I
mean, it does trickle down from the top, and we need to make
sure that we prevent as many, like, actual and also appearances
of conflicts of interest we can.
Ms. Pressley. Thank you so much. I yield.
Ms. Hill.[Presiding.] Sorry. This is my first time up here.
I'd like to recognize Mrs. Miller from West Virginia for
five minutes.
Mrs. Miller. Thank you, Madam Chairman.
To all of you, thank you so much for being here today.
Mr. Smith, in your testimony, you discussed the language
utilized by groups that mention either Federal candidates or
elected officials which promotes, attacks, supports, or
opposes, otherwise known as PASO. It is my understanding that
H.R. 1 uses this highly subjective qualifier as a standard for
all communications.
With that in mind, given the broad use of PASO in H.R. 1,
what kind of chilling effect do you believe this will have on
free speech in our country?
Mr. Smith. I think it will have a substantial chilling
effect, and I think that's why the Supreme Court in a number of
opinions dating back for almost a half a century has said that
the standards used to regulate speech have to be clear and
closely tied to elections, that this kind of vague standard
does not work. For a long time, they used the standard of
express advocacy. You had to say vote for or vote against,
support, defeat. Later, the Court expanded that a little bit to
anything that was susceptible of no other reasonable meaning
than a request to vote for a candidate and, even then, only if
it erred within 60 days of an election. So I think this kind of
broad standard is almost certainly unconstitutional, and it's
unconstitutional precisely because it chills so much speech
that goes outside of efforts to elect candidates, our ability
just to talk about issues and civic affairs.
Mrs. Miller. Well, that pretty much the leads into my
second question which was what impact would the passage of this
legislation have on those groups that are not political but may
put out policy-oriented communications?
Mr. Smith. It would be very serious, and I've given a
number of examples in the written testimony. I will just say
that I should add to this, of course, that the bill includes
personal liability for officers and directors of some of these
organizations. So, you know, you almost have to be crazy to let
your organization get anywhere close to this promote/support/
attack/oppose standard. And, again, what does that mean? I
suggest, you know, again, a government union might take out an
ad maybe in a month, right or three weeks from now saying:
Don't let President Trump--we shouldn't have to pay because he
wants his wall in Mexico, you know, so tell him to reopen the
government.
Is that an attack on President Trump? That's the kind of
thing that folks would not know and would make people very
hesitant to run that kind of an ad.
Mrs. Miller. So it is a personal risk as well?
Mr. Smith. Yes. Yes. Not only a risk, plus, it would be a
risk, by the way, as well to the tax status of some of the
organizations involved. Many of these organizations might have
some type of tax status. 501(c)(3) organizations would have to
be very careful because if they engage in speech that is now
defined as political speech, 501(c)(3) organizations can't
engage in political speech. They would jeopardize their tax-
exempt status. So that's another reason that these
organizations would stay far clear of commenting on any kind of
public issue.
Mrs. Miller. Thank you very much. I yield back my time.
Mr. Meadows. Would the gentlewoman yield?
Ms. Hill. I yield to--wait. I'm sorry. Yes, I yield.
Mr. Meadows. Okay. I thank the chairman. I thank the
chairman.
I want to commend, and actually, Ms. Flynn, I want to come
to you briefly. You're a nonpartisan group. Is that correct?
Mrs. Hobert Flynn. Yes, it is.
Mr. Meadows. All right. Mr. Shaub, you are here
representing CREW. Is that correct?
Mr. Shaub. Yes.
Mr. Meadows. You're a nonpartisan group?
Mr. Shaub. Yes.
Mr. Meadows. So is there anything to be learned by your
board members and who they contribute to and--because you say
you're nonpartisan, yet, Mr. Shaub, if I look at all your board
and who they contribute to, I think the lone donation to a
Republican was $250 to John McCain. But yet hundreds of
thousands of dollars from your board members to all kinds of
Democrat operatives and causes across the way. So is there
anything to be drawn from your board supporting those causes to
suggest that you're partisan or not?
Mr. Shaub. No. No.
Mr. Meadows. All right. So I'm confused a little bit, Mr.
Shaub. If we can't draw that conclusion, then how in the world
can we draw conclusions about other related entities in the
government based on their association or lack thereof of other
individuals?
Mr. Shaub. Entities in the government?
Mr. Meadows. Yes. I mean, you're making all kinds of
accusations that--with the chairwoman's permission, let me
finish the one question very quickly.
So, in that, your board is inherently left-leaning based on
their political contributions, and you're saying that that has
no input or direction on what your organization stands for. Is
that your sworn testimony here today?
Mr. Shaub. It's a nonpartisan group, yes.
Mr. Meadows. All right. I yield back.
Ms. Hill. Mr. Khanna from California is recognized for five
minutes.
Mr. Khanna. Thank you, Madam Chair.
I want to thank John Sarbanes and Chairman Cummings for
their leadership.
Mr. Smith, you're a student of history, I can tell, so I
want to read you a quote and see if you can guess which
President said this: It is well to provide that corporations
shall not contribute to Presidential or national campaigns and,
furthermore, to provide the publication of both contributions
and expenditures. However, no such law would hamper an
unscrupulous man of unlimited means from buying his way into
office. There is a very radical measure which would, I believe,
work to substantial improvement in our system of conducting a
campaign, although I am well aware that it will take some time
for people. So to familiarize themselves with such a proposal,
the need for collecting large campaign funds would vanish if
Congress provided an appropriation for the proper and
legitimate expenses of campaigns.
``Campaigns'' was a paraphrase, but that's the point. Do
you know who said that?
Mr. Smith. I believe that's Teddy Roosevelt.
Mr. Khanna. It is Teddy Roosevelt. Do you disagree with
Teddy Roosevelt?
Mr. Smith. Yes, I do.
Mr. Khanna. Do you disagree with the establishment of the
public funding for Presidential campaigns?
Mr. Smith. I do think that has been ineffective and not a
good idea. I also disagree with Ben Tillman who sponsored the
original Tillman Act for T.R.
Mr. Khanna. Did President Reagan participate under the
Presidential funding campaign?
Mr. Smith. Yes, he did.
Mr. Khanna. Would you say that it's fair to say there were
some strong conservatives elected under the Presidential
funding campaign?
Mr. Smith. Yes, there were.
Mr. Khanna. I was struck by your Statement that, quote, the
subsidy will most likely drive donors away from moderating
forces exerted by parties.
Is it your view--and I mean, it's a legitimate view, that
there's a debate in democracy. My view is the American people
are really smart, great, and I trust the popular will. Is it
your view that the donors, which are 5 percent, sort of have an
elite sort of a Republican function to moderate the will of the
American public?
Mr. Smith. No. My view is the public is very smart too,
which is why I trust them at the ballot box to make good
decisions.
Mr. Khanna. But why do you say--you don't say the voters
will have a moderating force. You're saying that the donors are
going to have this moderating force. I just want to see what
particular attributes do you give these donors? I mean, look,
Our Founders, there were some Founders who believe that there
should elites who put a check on the popular will. And I just,
I mean, it would an honest view if you said people who give
2,700 or 5,400 have--that in your view, they're smarter or
better and that they need to have a check on Americans. And my
view is that Americans are very smart, and I trust them more.
Mr. Smith. It's not really necessary for you to put words
in my mouth, Mr. Khanna. I did not say those things.
But what I do think is the case is that there's empirical
evidence that shows that small donors tend to be more polarized
than large donors, and that's just a question of empirical
evidence. Now, if you want to ignore the facts, you're free to
do that. That doesn't mean that donors or the public are
stupid. Voters are very smart, and again, I trust them at the
ballot box to make the right decisions.
Mr. Khanna. But why do you think that we need large donors
to have an influence? I guess that's my question. I mean,
you're basically saying they're 5 percent of the country we can
agree that have these large donors. You're saying they have a
force for good in our democracy.
Mr. Smith. I don't think that we need them to play that
role. I think that, on the other hand, the idea that we're
going to benefit simply by trying to make sure that we do a 6-
to-1 match for small donors is not going to have the results
that people think it will have.
Mr. Khanna. I'm not talking about that. I'm just trying to
understand your view because I think this is what drives a lot
of the view. It's that there are fundamentally people who
believe that these 5 percent of donors have some influence on
our democracy that you say is less polarizing. I mean, what
does that mean? Why is it that we can't----
Mr. Smith. My view is that it is generally a matter of bad
policy and tremendous risk and a violation of the First
Amendment to try to limit people's ability to speak out, to
contribute to candidates, to join groups that engage in the
political process.
Mr. Khanna. But you think that Theodore Roosevelt was
violating the First Amendment as well?
Mr. Smith. I think he was incorrect, yes.
Mr. Khanna. But just on this modernization. I mean, forget
the First Amendment argument. I want to understand the
polarization argument.
Mr. Smith. Uh-huh.
Mr. Khanna. Why is that you think 95 percent of the country
needs to be moderated? I mean, what is it----
Mr. Smith. I don't think that. What I think and what the
empirical evidence shows is that is small donors, which is a
small percentage of the total country, tend to be more
polarizing in their views and in their donations than are
others. Ask----
Mr. Khanna. No, but if you have public financing, you
wouldn't have largest donors. Then is your only concern the
First Amendment concern, or do you think that these large
donors are playing some positive influence in our democracy?
Mr. Smith. No, I don't think they're playing a particularly
positive influence. In some cases, they are, by the way, and in
some cases, they're not. I don't think as a group they are
uniformly playing a positive role or a negative, just I don't
think small donors are uniformly playing a positive role or a
negative role, and I don't think every member of this committee
is uniformly positive or negative. We're individuals. We play
individual roles.
Mr. Khanna. Thank you.
Ms. Hill. I recognize Mr. Jordan from Ohio for five
minutes.
Mr. Jordan. Thank you, Madam Chair.
Mr. Shaub, how long were you at OGE?
Mr. Shaub. A total of just short of 14 years.
Mr. Jordan. And how long were you the chairman?
Mr. Shaub. Well, I was never----
Mr. Jordan. Director. Excuse me.
Mr. Shaub. Director? Four and a half, I think.
Mr. Jordan. Four and a half years as director. And when did
that end?
Mr. Shaub. July 2017. I don't remember the exact date.
Mr. Jordan. So the end of the Trump administration, you
were still functioning as Director for six months, seven
months. Okay. Tell me exactly how things work at OGE. You
provide counsel and advice to folks in the executive branch of
the government on ethical concerns they may have. Do they come
to you, or do you go to them? How does it typically work?
Mr. Shaub. It typically works--you know, you're talking
about the prevention mechanism. It typically works that the
official initiates the interaction and comes seeking guidance
for something that they want to do, or to find out if they, you
know, need to do something. The only other way where it comes
involuntary is through the financial disclosure system where
they're required to file these reports. OGE reviews them and
often works back and forth with----
Mr. Jordan. How did it work with the President of the
United States? Did his lawyers come to you, or did you look
into his financial disclosures or both?
Mr. Shaub. Yes. They came to us. We had been working with
them since--well, I'm not sure when he first became a
candidate. It was----
Mr. Jordan. His lawyers reached out to you at some point
while he was a candidate and then continued to reach out to you
while he was President-elect and I assume while he was
President.
Mr. Shaub. That's right.
Mr. Jordan. All three stages.
Mr. Shaub. That's right.
Mr. Jordan. And on November 30, 2016, while it was then
President-elect Trump, you did a series of tweets about your
interactions with the President's legal team. Is that accurate?
Mr. Shaub. We----
Mr. Jordan. I've got them right here. I'll read them if you
want.
Mr. Shaub. No, no. I'm trying--it's the characterization of
about their what?
Mr. Jordan. Their interactions with OGE.
Mr. Shaub. And I believe they were about divestiture and
about our encouraging them to divest.
Mr. Jordan. Did you send them out on your official account?
Mr. Shaub. My official, no. We sent them out on the Office
of Government Ethics official account.
Mr. Jordan. That's what I mean, right.
Mr. Shaub. Yes.
Mr. Jordan. You tweeted these out?
Mr. Shaub. That's right.
Mr. Jordan. Had you ever tweeted out anything dealing with
anyone else who had sought your counsel and advice?
Mr. Shaub. We'd only had the account for about three years,
and I don't think we----
Mr. Jordan. It's a yes or no question. So the only guy you
ever tweeted about who you had been dealing was the President-
elect of the United States of America, right?
Mr. Shaub. Yes.
Mr. Jordan. You said things like this: We told your counsel
we would sing your praises if you divested. We meant it.
You're tweeting out for the whole world private
conversations you've had with someone who sought your advice,
their legal counsel. You said: As we discussed with your
counsel, divestiture is a way to resolve these conflicts.
Then you did this one: OGE applauds the total, in
parentheses, divestiture decision--mocking the President-elect.
Mr. Shaub. No. We were not mocking.
Mr. Jordan. Then why did you put it in parentheses?
Mr. Shaub. Because it was, I think, a quote.
Mr. Jordan. You said you had never done this before, never
tweeted out about anyone else in the executive branch who
sought your advice and counsel on how they can deal with
ethical issues. This was the only individual you ever tweeted
out about.
Mr. Shaub. I think that's a mischaracterization to describe
it as confidential advice. OGE's position that a President
should----
Mr. Jordan. I didn't saying anything about confidential.
All I said is this the only guy you ever tweeted about?
Mr. Shaub. All right. I thought I heard you said
confidential at one point.
Mr. Jordan. I did not. And you said you did tweet about the
President-elect, no one else.
Mr. Shaub. That's right.
Mr. Jordan. Do you find that unusual?
Mr. Shaub. Do I find it--I find everything about the past
two and a half years unusual.
Mr. Jordan. No, no, no. I'm not saying that. Do you find it
unusual that--what I'm saying is--well, let's say it this way:
Do you think it was a professional decision that the guy who is
the head of the Office of Government Ethics, when you're going
to give information to the public only about one individual,
and you've never done it in your 14 years at OGE and four years
as Director?
Mr. Shaub. Well again, you said disclosed information. I
didn't share information. This was from 1983, was when OGE----
Mr. Jordan. Well, wait. What were you trying to convey?
What were you trying to convey in these tweets?
Mr. Shaub. That the President should divest as OGE had been
telling him.
Mr. Jordan. Couldn't you tell his lawyers?
Mr. Shaub. We did tell his lawyers.
Mr. Jordan. Well, then why did you tweet about it?
Mr. Shaub. We had reached a dead end, and I wasn't
convinced that our communications were reaching him.
Mr. Jordan. You're talking to his lawyers. His lawyers
reached out to you first. You're communicating the advice that
you think is what they need to do, and yet you go tweet about
it?
Mr. Shaub. We were trying to nudge him toward with
divestiture. He had just issued a Statement that he was going
to achieve total--you have the phrase there. I don't have the
phrase, and I don't want to say it wrong.
Mr. Jordan. OGE applauds the total divestiture decision.
Bravo.
Mr. Shaub. He said something like completely separate or
completely resolve conflicts of interest. I don't want to claim
I remember the quote exactly, and so what we were trying to
do--we had two choices: interpret that as unclear or give him--
I mean, you know, doubt him or give him the benefit of the
doubt that what he said was true. We made a decision to choose
to take him at his exact literal words because only
divestiture----
Mr. Jordan. You made a decision to tweet out conversations
you had with the President-elect's counsel when they were
seeking advice and guidance from you, and you had never, ever
done that before.
Ms. Hill. Thank you, Mr. Jordan.
I recognize myself for five minutes, and I'd like to yield
two minutes to Ms. Tlaib from Michigan.
Ms. Tlaib. Thank you, Chairwoman Hill.
It's wonderful seeing you up there. I really appreciate
this. You know, at this very moment I'm thinking about my
teenage son who would be saying--we're talking about tweets
right now, and he would say, ``Seriously?''
But I just really want to talk about something incredibly
serious which is the law the land: the United States
Constitution. We all have a duty do uphold it. We're here to
serve the American people, not this President. We serve them
before anyone. And I just know since the Ethics in Government
Act of 1978 was passed, Presidents of both parties have
established blind trusts or limited their holdings to the U.S.
Treasuries, diversified mutual funds, all the assets, because
of conflict of interest. And you just talked about divestiture.
This is the Emolument Clause. This is an incredibly important
clause that really protects the American people. No matter who
is there, Republican, Democrat, it doesn't matter because it's
really important to take that kind of influence out because
everyone knows being President is a temporary gig because what
happens afterwards, right?
You have someone that is still running The Trump
Organization, many of them in the Cabinet right now and serving
out of the White House. I am really asking for all of you to,
please, even if it's just for a few seconds, to talk about the
Emolument Clause, why it's there, and why it's important to
really reiterate this because even beyond H.R. 1, this is
current law now, and we're not upholding that law. We're not
taking our oath that we just took five weeks ago seriously when
we say this, and I'll tell you: I don't care if it was--is a
Democrat thing or--I don't care. This is important to me that
someone is making decisions based on the American people and
not the best interests of a profit in mind or best interests of
their company which they're going to go back after leaving that
White House, go back into that. It is so critically important
that we uphold the Emolument Clause. I would really like for
you to speak about that.
Mr. Shaub. Well, you know, the Founders of our Republic
created a foundational document, the United States
Constitution, and we've heard a lot today about the importance
of that Constitution. The only conflict of interest provision
that they felt they needed to include in that foundational
document were the two Emoluments Clauses. And, you know,
frankly, I wish they had put a whole lot more in, but those are
the two they gave us, and those are the two that they felt were
preeminent and needed to be in there.
Ms. Hill. One brief second.
Mr. Mehrbani. Well, I was just going to say that I think
the Emoluments Clause stands for the principle against self-
dealing and using a public position to benefit yourself
individually. I think you can draw connections from the Ethics
in Government Act and other laws that have been passed on a
bipartisan basis directly to the Emoluments Clause and other
constitutional provisions, so it's something that we think
about often.
Ms. Hill. Reclaiming my time. I just want to finish this by
saying that I ran for Congress, and I know many of my
colleagues did, because I believed that our political system
was broken and in large part due to a complete lack of trust by
our citizens in our government and in our democracy and that
restoring that trust has to be our top priority. So I have a
question for all of you, and I want to make sure that Mr. Smith
answers this. Do you believe that increased transparency would
help restore that trust?
Mr. Smith. If you want to start with me, I would not agree
with that as a blanket assertion.
Ms. Hill. You don't believe that transparency----
Mr. Smith. I think there are cases where it does, and there
are cases where it does not.
Ms. Hill. Can you give me one example where transparency
would not restore trust in democracy?
Mr. Smith. Well, for example, I think sometimes debates of
this very organization are best held in private where you can
stake out positions, give and take without having every
absolutely conversation, for example, made public. I think, for
example, that if people contribute small amounts to grassroots
organizations, no, the public doesn't need to know that, and
the harm outweighs the benefits, the threats to people, the
fact that they often withdraw from political participation. So
it's a case-by-case matter.
Ms. Hill. I'm not suggesting in any way that people need to
hear every conversation. I'm saying the general mechanisms of
transparency that we're asking for here in this bill is----
Mr. Smith. Some of the transparency here is bad. I've
outlined in that in my testimony.
Ms. Hill. Okay. I'll move on to the next.
Do you believe that transparency helps restore faith in
democracy?
Mr. Shaub. I think it's probably the most important tool we
have to assure the American people that their leaders are
acting in their interests.
Ms. Hill. Great. Do you all agree?
Mr. Mehrbani. Yes. Sunlight is a good prophylactic.
Mrs. Hobert Flynn. Yes. And both in ethics measures and
campaign finance reform measures as well.
Ms. Hill. Mr. Smith, do you believe at least that making it
easier to vote would restore trust in our democracy?
Mr. Smith. I think generally you don't want obstacles
placed in the way of voting, but I don't think, again,
everything making it easier to vote. For example, I would not
favor having early voting begin a year before the election. So
some things, yes, and some things, no.
Ms. Hill. What about making it national holiday to vote?
Mr. Smith. Making it a national holiday? Let's put it this
way. I don't think that's a real problem or that it has been
shown to increase turnout or make it a whole lot easier to vote
when it has been tried.
Ms. Hill. Well, I would say that for working class people
who don't get paid time off, it would make it harder to try.
Mr. Smith. It may, but I don't think the empirical data
shows that it has an affect there.
Ms. Hill. Okay. Well, I would like to say that the former
General Counsel and Acting Director of the Office of Government
Ethics Don Fox sent a letter to the committee in support of
H.R. 1. Public Citizen, the Declaration for American Democracy
Coalition, and Indivisible have also written Statements in
support, all of which I'm adding to the record.
[The information is provided in the Apendix section.]
Mr. Amey. Madam Chair.
Ms. Hill. Mr. Amey, I recognize you.
Mr. Amey. I just want to go back to the transparency.
Obviously, I'm a big yes. And I just want to say it's not only
for the American people, but it's Congress. Earlier today we
heard I think it was Congresswoman Maloney mention that
documents haven't been turned over to Congress. We found an
ethics waiver that goes back to 2003, and it was an ethics
waiver for someone over at HHS, at CMS, that was working on the
Medicare or Medicaid part B portion of the healthcare bill.
There was a gentleman there that received a waiver, and it was
a general waiver, and that's why putting waivers out and making
them publicly available are important. But this Congress voted
on that bill and supported it, and that gentleman refused to
let a member of the staff turn over information to Members of
Congress, and guess what? Within days, he went and worked for a
lobbying shop and went to work for a company or a firm that
represented drug companies. And so I just--it is important for
the American public, but it is also important for the Senate
and the House of Representatives to also have faith in the
government and what information they're getting from government
employees.
Ms. Hill. Thank you.
Mr. Meadows. Madam Chair, I ask unanimous consent that the
record reflects that the President of the United States has
consistently throughout his tenure donated his Presidential
salary back to Federal agencies, as recent as this last
quarter. And since much of this discussion is about his private
benefit by his position, I want the record to reflect that he
actually donates back his salary to Federal agencies.
I ask unanimous consent.
Ms. Hill. If there's no objection, so ordered.
Ms. Hill. I would like to close by thanking all of our
witnesses again for participating today. It was helpful to hear
the expertise of our witnesses and why Congress should take
action on H.R. 1. H.R. 1 is a comprehensive package of reforms
that we desperately need. And speaking as a recent citizen and
not a Member of Congress, I strongly stand in support of this
and, in fact, was running on these issues long before I knew
that this was coming in the form of a package, and I know that
that's the case for many of my colleagues as well.
The reforms in the jurisdiction of this committee would
make the executive branch more accountable and transparent. I
urge all members of the committee to work with us in moving
this legislation forward.
With that, the committee stands adjourned.
[Whereupon, at 1:30 p.m., the committee was adjourned.]
APPENDIX
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