[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
IMPROVING GOVERNMENT ACCOUNTABILITY
AND TRANSPARENCY
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
OVERSIGHT AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
MAY 3, 2021
__________
Serial No. 117-17
__________
Printed for the use of the Committee on Oversight and Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on: govinfo.gov,
oversight.house.gov or
docs.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-568 PDF WASHINGTON : 2021
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COMMITTEE ON OVERSIGHT AND REFORM
CAROLYN B. MALONEY, New York, Chairwoman
Eleanor Holmes Norton, District of James Comer, Kentucky, Ranking
Columbia Minority Member
Stephen F. Lynch, Massachusetts Jim Jordan, Ohio
Jim Cooper, Tennessee Paul A. Gosar, Arizona
Gerald E. Connolly, Virginia Virginia Foxx, North Carolina
Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
Jamie Raskin, Maryland Glenn Grothman, Wisconsin
Ro Khanna, California Michael Cloud, Texas
Kweisi Mfume, Maryland Bob Gibbs, Ohio
Alexandria Ocasio-Cortez, New York Clay Higgins, Louisiana
Rashida Tlaib, Michigan Ralph Norman, South Carolina
Katie Porter, California Pete Sessions, Texas
Cori Bush, Missouri Fred Keller, Pennsylvania
Danny K. Davis, Illinois Andy Biggs, Arizona
Debbie Wasserman Schultz, Florida Andrew Clyde, Georgia
Peter Welch, Vermont Nancy Mace, South Carolina
Henry C. ``Hank'' Johnson, Jr., Scott Franklin, Florida
Georgia Jake LaTurner, Kansas
John P. Sarbanes, Maryland Pat Fallon, Texas
Jackie Speier, California Yvette Herrell, New Mexico
Robin L. Kelly, Illinois Byron Donalds, Florida
Brenda L. Lawrence, Michigan
Mark DeSaulnier, California
Jimmy Gomez, California
Ayanna Pressley, Massachusetts
Mike Quigley, Illinois
David Rapallo, Staff Director
Krista Boyd, Chief Oversight and Policy Counsel
Aaron Blacksberg, Counsel
Elisa LaNier, Chief Clerk
Contact Number: 202-225-5051
Mark Marin, Minority Staff Director
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C O N T E N T S
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Page
Hearing held on May 3, 2021...................................... 1
Witnesses
James-Christian Blockwood, Executive Vice President, Partnership
for Public Service
Oral Statement............................................... 5
Elizabeth Hempowicz, Director of Public Policy, Project on
Government Oversight
Oral Statement............................................... 6
Rudy Mehrbani, Senior Advisor, Democracy Fund
Oral Statement............................................... 8
Zack Smith, Legal Fellow, Meese Center, The Heritage Foundation
Oral Statement............................................... 10
Opening statements and the prepared statements for the witnesses
are available in the U.S. House of Representatives Repository
at: docs.house.gov.
INDEX OF DOCUMENTS
----------
The documents entered into the record for this hearing are listed
below.
* Letter from the National Association of Assistant United
States Attorneys; submitted by Rep. Norman.
* A study by Anne Joseph O'Connell; submitted by Rep. Porter.
* Written testimony by Anne Joseph O'Connell; submitted by Rep.
Porter.
* Letter signed by Government Groups; submitted by Rep. Porter.
* March 16, 2021 letter signed by more than two dozen outside
groups and experts in support of the PLUM Act; submitted by
Rep. Maloney.
* March 18, 2021 letter from Partnership for Public Service in
support of the PLUM Act; submitted by Rep. Maloney.
* GAO report from March 14 recommending that Congress consider
legislation to require publishing information on political
appointees; submitted by Rep. Maloney.
* May 3, 2021 letter from organizations in the Make It Safe
Coalition Steering Committee in support of the Whistleblower
Protection Improvement Act; submitted by Rep. Maloney.
* Written testimony of Thomas Devine, legal director,
Government Accountability Project; submitted by Rep. Maloney.
* April 1, 2021 letter to President Biden on whistleblower
protections signed by over 260 organizations; submitted by Rep.
Maloney.
* March 26, 2021 letter signed by 17 organizations in support
of the Inspector General Access Act; submitted by Rep. Maloney.
* January 28, 2021 letter from the Council of Inspectors
General on Integrity and Efficiency on their legislative
priorities for the 117th Congress; submitted by Rep. Maloney.
* November 23, 2020 letter from then GSA Administrator Emily
Murphy to then President elect Joe Biden; submitted by Rep.
Maloney.
* March 16, 2021 letter signed by 15 organizations in support
of reforms to the Federal Advisory Committee Amendments Act;
submitted by Rep. Maloney.
* September 10, 2020 GAO report that identified weaknesses in
agency implementation of FATCA; submitted by Rep. Maloney.
* April 13 letter from 29 organizations in support of the
access to Congressionally Mandated Reports Act; submitted by
Rep. Maloney.
* D.C. Affairs Community letter regarding support for
statehood; submitted by Rep. Maloney.
These documents are available at: docs.house.gov.
IMPROVING GOVERNMENT ACCOUNTABILITY AND TRANSPARENCY
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Monday, May 3, 2021
House of Representatives,
Committee on Oversight and Reform,
Washington, D.C.
The committee met, pursuant to notice, at 11:04 a.m., in
room 2154, Rayburn House Office Building, Hon. Carolyn B.
Maloney [chairwoman of the committee] presiding.
Present: Representatives Maloney, Norton, Lynch, Connolly,
Krishnamoorthi, Raskin, Mfume, Tlaib, Porter, Bush, Wasserman
Schultz, Johnson, Sarbanes, Speier, DeSaulnier, Quigley,
Jordan, Grothman, Gibbs, Higgins, Norman, Keller, Biggs, Clyde,
Franklin, Fallon, Herrell, and Donalds.
Chairwoman Maloney. The committee will come to order.
Without objection, the chair is authorized to declare a recess
of the committee at any time. I now recognize myself for an
opening statement.
Today's hearing will examine legislative proposals to
improve government accountability and transparency. Enacting
these commonsense bipartisan reforms would improve efficiency,
combat waste, fraud, and abuse, and build public trust in the
Federal Government. The work of inspectors general is critical
to each of these goals. I introduced the IG Independence and
Empowerment Act to ensure that inspectors general can perform
their jobs free from political retaliation and that they have
the tools needed to perform thorough investigations.
This comprehensive package includes my bill that would
protect IGs from being fired just for doing their jobs, and
would only allow an IG to be removed for cause based on a
defined list of legitimate, nonpartisan reasons.
This package also includes bills introduced by several
committee members, including Government Operations Subcommittee
Chairman Connolly, Committee Vice Chair Gomez, and
Congresswoman Porter. I want to thank each of them for their
hard work on these reforms.
Many of these proposals have historically enjoyed
bipartisan support, such as giving IGs the ability to compel
testimony from contractors and former Federal employees.
Another bill we will be considering is the Periodically
Listing Updates to Management Act, also known as the PLUM Act.
With the support of Chairman Connolly and Congressman Sarbanes,
we introduced this bill as part of Sunshine Week back in March.
This bill would provide the American people with timely and
transparent information about senior government officials.
During Sunshine Week, I also introduced the bipartisan
Federal Advisory Committee Transparency Act, with Ranking
Member Comer. This bill would close loopholes that agencies
have often used to avoid making the work of these advisory
committees transparent to the public. I am grateful to the
ranking member for his continued support on this much-needed
reform.
Today, we will also discuss the Accountability for Acting
Officials Act, Congresswoman Porter's bill, to amend Federal
vacancies law. I support this important bill which would
clarify and strengthen requirements around who can serve as an
acting official and for how long. When a Senate-confirmed
position is vacant, the bill would also increase transparency
with new requirements for agencies to notify Congress about
vacancies and for acting officials to testify regularly before
Congress.
Finally, protections for whistleblowers need to be
strengthened to preserve the crucial role these Federal
employees play in holding the government accountable, including
by providing information to Congress. These reforms have always
received strong bipartisan support. That is why I'm pleased to
announce that Representatives Mace, Connolly, Speier, Johnson,
Rice, and I are introducing the Whistleblower Protection
Improvement Act today.
This bill would clarify that no Federal employee, including
the President or Vice President of the United States, may
interfere with or retaliate against a whistleblower for sharing
information with Congress. The bill would provide Federal
whistleblowers with faster legal recourse for retaliation
claims and would allow whistleblowers who take a claim to court
to have their case heard by a jury.
I look forward to hearing from today's panel of nonpartisan
experts on these topics and our proposed reforms. Today's
hearing is the first step in the legislative process. Going
forward, I hope to work with the ranking member and all members
of the committee to pass these bills out of the committee and
enact them into law.
I now recognize Mr. Gibbs for an opening statement.
Mr. Gibbs. Thank you, Chairman Maloney, for holding this
important hearing today. And thank you to all the witnesses for
testifying.
Transparency and accountability in government is essential.
Citizens deserve to know what is really happening in their
government and not months or years later after elected
officials or unelected bureaucrats can escape the consequences.
Otherwise, the accountability built into elections is not as
robust as it should be. The lack of transparency and
politicians avoiding accountability are major factors why the
American people feel so disconnected and ignored by Washington.
President Biden's address to Congress last week in his
first 100 days of office is a prime example. When he
campaigned, President Biden promised a return to normalcy and a
commitment to bipartisan solutions. What we have seen since
inauguration day and what we've heard about the President's
plan last week, have been anything but that. We haven't seen a
return to normalcy at all. What we've seen is some of the most
radical and costly left-wing proposals this country has ever
seen.
President Biden has proposed to spend $6 trillion, mostly
on socialist initiatives, ignoring the bipartisan consensus on
commonsense policies such as infrastructure. Government under
President Biden will control every aspect of our lives.
Meanwhile, many children have not attended full-time, in-person
school since March of last year. Fifty percent of our schools
have not fully reopened.
Some of the legislation before us today is more of the same
partisan agenda, such as the legislation that was part of
Speaker Pelosi's and Representative Adam Schiff's Protecting
Our Democracy Act last year. That was a 158-page campaign
document pretending to be legislation, commissioned by Speaker
Pelosi and introduced during the last weeks before the 2020
election to politically damage President Trump. It was referred
primarily to this committee and included two bills, the
Inspector Generals Independence Act and the Accountability for
Acting Officials Act, that led to the largest bill before us
today, the Inspector Generals Independence Empowerment Act. It
was referred to eight Democrat-controlled committees last term,
not one which took it up seriously, held a legislative hearing,
or marked it up.
I sincerely hope that legislation in this bill is not being
promoted once more to play partisan politics, only this time to
divert voters' attention away from the Biden administration's
border crisis and the Democrats' other disastrous, debt-
crippling policies.
Some of us on the other side of the aisle have supported
and even cosponsored some of the other legislation before us
today, including, for example, the Federal Advisory Committee
Transparency Act, which Ranking Member Comer is the leading
Republican cosponsor. I hope we can focus on those commonsense
measures that have real promise for bipartisan consensus, not
the campaign leftovers pulled from the Speaker's and Mr.
Schiff's Protecting Our Democracy Act.
And since some of our business today involves inspector
generals issues, I hope we can use this hearing to help get to
the bottom of what went wrong with the Election Assistance
Commission's Inspector General's Office last year. That office
utterly failed to investigate what would seem to be an unlawful
$35 million contract awarded by former California Secretary of
State Alex Padilla to then Presidential candidate Joe Biden's
main election campaign advisory firm out of the CARES Act
funds, of all things. The EAC's Inspector General is not only
IG unable to investigate clear wrongdoings.
Many small inspectors generals office do not have the
staffing or resources to conduct investigations and
substantiate allegations of wrongdoing. If an inspector
general's office does not have the staffing to conduct rigorous
investigations into credible allegations, then it does not have
the resources to function. Inspector general's offices should
not be passthrough entities with no ability to oversee
contractors hired to do the IG's job.
I am hopeful my Democratic colleagues can stop the partisan
attacks on the Trump administration and focus on ensuring our
inspectors generals are able to conduct robust oversight to
better hold individuals accountable for wrongdoing.
I yield back my time.
Chairwoman Maloney. I now recognize Mr. Connolly for two
minutes for an opening statement.
Mr. Connolly.
Mr. Connolly. Thank you, Madam Chairman, and thank you so
much for holding this hearing on such an important subject.
Our Subcommittee on Government Operations held a critical
hearing on this subject just last week. The IGs lead offices
and recover overpayments by government agencies. They identify
risks and program improvement areas and root out fraud, waste,
and abuse and gross mismanagement.
As I noted at that hearing, in Fiscal Year 2020 alone, the
75 Federal offices of the Inspectors General collectively
identified $33.3 billion in potential savings from audit
reports and $19.7 billion actually recovered, amounting to a
$17 return for every dollar we actually invest in the IGs.
Their independence is critical.
President Trump executed a rash of politically motivated
retaliatory personnel moves against Federal IGs who were
investigating actions of his administration. Mr. Trump would
not say why he was removing these IGs, but the motivation was
fairly clear. It was blatant retaliation. Mr. Trump would
remove an IG and replace him or her with his own political
appointee, sometimes dual hatting an individual who would
concurrently serve within the agency he or she was ostensibly
assigned to oversee.
As the GAO testified, the independence of IGs is critical,
absolutely critical, to their effectiveness and to transparency
and accountability. The legislation that we're looking at, that
we're introducing, is designed to do just that. It protects
whistleblowers. It protects the independence of IGs, and
codifies how an IG could be removed and strengthens their role,
which will help the American taxpayer and make our government
more accountable and efficient. I support the legislation in
front of us and look forward to the hearing.
I yield back. Thank you, Madam Chairwoman.
Chairwoman Maloney. The gentleman yields back.
I would like to introduce our witnesses. Our first witness
is James-Christian Blockwood, who is executive vice president
at the Partnership for Public Service. Next, we will hear from
Elizabeth Hempowicz, who is the director of Public Policy at
the Project on Government Oversight. And we will hear from Rudy
Mehrbani, who is senior advisor at the Democracy Fund. And last
but not least, we will hear from Zack Smith, who is a legal
fellow at The Heritage Foundation.
The witnesses will be unmuted so we can swear them in.
Please raise your right hands.
Do you swear or affirm that the testimony you're about to
give is the truth, the whole truth, and nothing but the truth,
so help you God?
Let the record show that the witnesses answered in the
affirmative.
Thank you. Without objection, your written statements will
be made part of the record.
With that, Mr. Blockwood, you are now recognized for your
testimony. Mr. Blockwood.
STATEMENT OF JAMES-CHRISTIAN BLOCKWOOD, EXECUTIVE VICE
PRESIDENT, PARTNERSHIP FOR PUBLIC SERVICE
Mr. Blockwood. Thank you, Chairwoman Maloney, Ranking
Member Gibbs, and members of the committee, for inviting me
here today. I'm James-Christian Blockwood, executive vice
president at the nonpartisan, nonprofit Partnership for Public
Service. Our mission is simply to make government work better
and inspire people to serve. I welcome the opportunity to be
here today to discuss with you about accountability and
transparency in government and how progress on these goals is
necessary to the modernization and effectiveness of government.
Public trust in the Federal Government has been near
historic lows for more than a decade. To increase this level of
trust, we must work harder to show the American people that
their government is being held accountable through oversight
and the checks and balances that our Constitution envisions.
Transparency helps preserve liberty by letting the American
people know how decisions are being made and who is making
decisions on their behalf in our democratic system.
The topics this committee will discuss today, ranging from
preservation of government records to the role of inspectors
general to the protection of whistleblower rights, are all
areas where, in the past, after deliberation and debate, this
committee has led Congress to enact bipartisan legislation.
Through our work at the Partnership, we strive to ensure
the most competent and qualified individuals are in critical
policy roles, that the American people know who is serving
them, and the executive and legislative branches fulfill their
mutual roles in filling key positions in government.
There are a few areas that I would like to highlight today.
First, Congress needs to take on the task of updating the
Vacancies Act. The statute was last updated in 1998 and has
shown itself across administrations from both parties to be
confusing and often ineffective. A revisiting of the law on
vacancies is necessary both to preserve the advice and consent
role of the Senate and to ensure the effectiveness of
government during inevitable vacancies of senior political
positions.
The Accountability for Acting Officials Act would make some
commonsense updates to the law. For example, clarifying that it
applies when an official is fired and ensuring Congress gets
timely notification of when vacancies occur and often who
temporarily fills those positions.
Second, the American people deserve better transparency
into who is serving them in the Federal Government, both in
political positions and top career positions. This information
is currently produced once every four years in what is known as
the Plum Book, the same way it has been produced since the
1950's. And every four years, it's outdated by the time it's
published.
The Plum Book needs to be modernized, providing real-time,
online information on how our government is organized and who
is in key policymaking positions.
Third, the partnership asks the committee to consider that
one reason why there may be so many vacancies and it's
difficult to keep up with appointees is that we simply have too
many political appointees in our government. Any incoming
President is responsible for filling more than 4,000 political
appointees, of which 1,200 require Senate confirmation. This
number of appointees is higher than in any other modern
democracy.
The Partnership urges the Congress to take up the same
effort it did in 2011 when it worked on a bipartisan basis to
reduce the number of appointees subject to Senate confirmation.
Thank you again for the opportunity to discuss these and
other issues related to accountability and transparency.
Chairwoman Maloney. Thank you.
Mr. Blockwood. The Partnership for Public Service stands
ready to help you find nonpartisan, commonsense solutions to
the major management challenges facing our government. And in
light of Public Service Recognition Week, please allow me to
extend my thanks to all public servants around our country.
And, of course, Members of Congress and your staff are also
public servants, so I thank you for your service as well.
I can think of no better way to start Public Service
Recognition Week than by having today's discussion on how we
can make government better serve the people. I'd also like to
thank the team at the Partnership that helped me prepare for
this hearing. I look forward to the discussion and answering
any questions you may have.
Chairwoman Maloney. Thank you so much. The gentleman yields
back.
Ms. Hempowicz, you're now recognized for your testimony.
STATEMENT OF ELIZABETH HEMPOWICZ, DIRECTOR OF PUBLIC POLICY,
PROJECT ON GOVERNMENT OVERSIGHT
Ms. Hempowicz. Chairwoman Maloney, Ranking Member Gibbs,
and members of the committee, thank you for inviting me to
testify today.
The legislation before you is critical if Congress is to
address the public's growing concern about government
corruption. I will focus my remarks today on how these
proposals will address gaps in current law that leave
whistleblowers exposed to retaliation, undermine the work of
our inspectors general, and leave the executive branch exposed
to corruption and instability.
As this committee knows, whistleblowers expose wasteful or
fraudulent government spending, often leading to the recovery
of public money. Their disclosures also alert us to matters
critical to public health or where the government is abusing
its power against the people. But whistleblowers are often met
with retaliation, and, unfortunately, the legal system meant to
deter and correct retaliation is not working. At the end of the
day, we ask whistleblowers to put their livelihoods on the line
with no guarantee that they will be protected by the law.
The bipartisan Whistleblower Protection Improvement Act
contains numerous provisions that would address some of the
most consequential gaps in current law. If it is enacted,
whistleblowers will be able to fight back against many
retaliatory investigations and would be able to petition a jury
of their peers for relief from retaliation.
Passing this legislation will also allow whistleblowers to
protect their anonymity more effectively. As you know,
anonymity is the single best way to protect against
whistleblower retaliation.
Next, let's consider the role that inspectors general play
in the fight for government accountability. Their work
conducting oversight over executive branch programs and
management continually results in significant savings for
taxpayers. IGs also expose when political appointees or civil
servants corruptly abuse the power of the executive branch.
However, most IGs don't have the authority they need to compel
cooperation with their investigations outside of their agency
walls. That means that to evade accountability, a corrupt actor
only needs to leave government to effectively shut down an IG
inquiry into their behavior.
Furthermore, IGs themselves are also exposed to retaliation
because they can be fired by the President for any reason. This
makes no sense, especially when you consider how exposing
government inefficiency and corruption is unlikely to win the
favor of political leadership.
While some may argue that protecting IGs from retaliatory
removals would be unconstitutional, I want to note that the
Supreme Court recently had a chance to weigh in on the matter
more broadly. The Court's majority went out of its way to
highlight that in some cases, these types of protections are
appropriate. Our analysis is that IGs are one such office where
they would be appropriate and constitutional, and the
nonpartisan congressional Research Service agrees. Passing the
IG Independence and Empowerment Act would not only grant IGs
the authority it needs to aggressively expose instances of
government corruption but to also make it less dangerous to
exercise the independence required of them to fulfill their
important missions.
And, finally, I want to talk about how weaknesses in the
law that governs how the President selects temporary leaders
for vacant executive branch offices leaves our government
susceptible to corruption and exposed to costly legal
challenges. The Vacancies Act was meant to protect both the
President's ability to keep government working when there are
vacancies and to protect the Senate's constitutional advice and
consent role. But the law's loopholes now leave the executive
branch exposed to exactly the kind of concentrated appointment
power that our Founders intended to prevent. These legal gray
areas also have a major practical impact, since actions taken
by an individual whose appointment is ultimately judged to be
invalid under the Vacancies Act can be voided by our courts.
The Accountability for Acting Officials Act would address
some of the most important gray areas in the Vacancies Act. It
would encourage the timely nomination of qualified individuals
from the White House and clarify the boundaries to the
executive's power to appoint temporary leadership. The modest
reforms in this bill would restabilize the legitimacy of
government without improperly limiting the President from
carrying out their responsibilities.
To recap, right now, we ask Federal whistleblowers to put
their careers on the line to expose government wrongdoing, even
though we know the legal system will not adequately protect
them. We expect our internal executive branch watchdogs to root
out corruption without the tools they need to do so and while
they're exposed to retaliation, and we have an executive branch
that has too expansively interpreted its authorities under the
Vacancies Act in a way that leads our executive branch exposed
to corruption.
By addressing these problems, you can show your
constituents that you are serious about making sure that the
executive branch of government truly works for the people.
I strongly urge you to pass the legislation I highlighted
today and in my written testimony. Doing so would lead to a
more effective, ethical, and accountable Federal Government
that safeguards constitutional principles, a goal that I think
is shared by the members of this committee, regardless of
political affiliation.
Thank you for holding this important hearing. I look
forward to answering your questions.
Chairwoman Maloney. Thank you.
Mr. Mehrbani, you are now recognized for your testimony.
STATEMENT OF RUDY MEHRBANI, SENIOR ADVISOR, DEMOCRACY FUND
Mr. Mehrbani. I'd like to thank Chairwoman Maloney, Ranking
Member Comer, and the entire community for the opportunity to
testify in support of reforms to enhance accountability and
transparency in the Federal Government.
These are unprecedented times. In addition to a global
pandemic, rising economic inequality, a national reckoning with
racial injustice, and a climate on the brink of collapse, the
Nation is facing a crisis of confidence in its most
foundational principle, the rule of law.
It's not some theoretical concept. The rule of law
underpins constitutional values that are vital to how
government operates, ensuring that no one is above the law,
that justice is administered without favor or prejudice, that
the powers of government work for the benefit of the American
people, not for the profit of those wielding that power.
But we depend on government officials to uphold these
values, and they don't police themselves. We need
accountability and transparency measures as a backstop. That's
why our Constitution extended its system of checks and balances
to personnel appointments, to ensure the rule of law and the
spirit of public service is preserved by those in government.
None other than Alexander Hamilton, known for believing in
a strong executive, said that conditioning the President's
appointment powers on the Senate's advice and consent, quote,
would be an excellent check and prevent the appointment of
unfit characters, end quote, and that a President left to his
own devices would fill offices based on, quote, private
inclinations and interests, end quote.
As you know, Congress has supplemented the system with
legislation to protect against abuse and corruption. Reforms
were adopted following periods of abuse in our history, like
the Ethics in Government Act, Inspector General Act, and the
Federal Vacancies Reform Act. Unfortunately, Presidents have
increasingly exploited loopholes in these laws for their own
personal, financial, or political benefit.
To respond, we need a variety of reforms to close these
loopholes and shore up the guardrails that protect against
abuse. The bills being considered by this committee today,
together with other key ethics and anticorruption reforms,
namely those in the Protecting our Democracy Act and the For
the People Act, are essential to restoring faith in our
government.
Many consider the prior four years a time of unprecedented
abuse by the executive branch. Others would rightly point out
that Presidents and government officials have overreached
before and that weaknesses in our system predate 2016. Frankly,
we don't need to agree on how to apportion blame to effectively
respond. Take vacancies and the overreliance on acting
officials as an example. We can all agree a few things are
true. First, Presidents are increasingly turning to acting
officials to fill vacancies. President Trump relied on acting
officials to serve in his Cabinet more in his first three years
than the entire Presidencies of each of the past five
Presidents.
Second, the Senate confirmation process takes twice as long
as it did when President Reagan was in office, creating
perverse incentives for Presidents trying to field their team.
And, third, Presidents are turning to creative and weakly
problematic maneuvers [inaudible] moves that are inconsistent
with the spirit of the Federal Vacancies Reform Act, if not the
letter of the law.
Why does this matter? It's problematic and disruptive for
government operations, and it eviscerates the system of checks
and balances that serves to ensure appointees are qualified and
accountable. It's worse when these abuses extend to inspector
general positions. IGs are meant to serve as nonpartisan,
independent watchdogs. Installing IGs with perceived, if not
real conflicts of interest, undercuts their role and raises
doubts about the government's commitment to combating
corruption.
The reforms under consideration by this committee would
reduce these kinds of abuses and provide democratic
accountability in the future. For example, the Accountability
for Acting Officials Act, introduced by Representative Porter,
puts forward commonsense reforms to ensure that serving in the
most powerful positions in the executive branch have to report
to Congress, and it limits the length of time officials may act
as agency heads to 120 days.
From my experience running a Presidential personnel office,
120 days to fill these leadership positions is a reasonable
expectation. And when the President nominates someone, the
Senate should duly consider them, which is why I also urge
Congress to couple reforms to the Vacancies Act which reforms
to the confirmation process outlined in my written testimony.
To be clear, the FVRA is complicated, but I'd argue that in
most cases, the complexities stem from ambiguities, and it's
these ambiguities that have been taken advantage of. The
reforms would provide more clarity and transparency.
I'd also like to close by saying that it's fitting for this
committee to have this hearing today at the start of Public
Service Recognition Week. Public servants deserve our
gratitude. In just the last few months, they have met immense
logistical challenges to support the delivery and distribution
of 100 million vaccines to American people across the country,
demonstrating the government can still work for the people.
It's the result of political and career leaders having a
singular focus.
For government to meet the challenges of our time, we need
a system that can ensure it can maintain this kind of
dedication to the public good. The reforms under consideration
by this committee would help do exactly that, and I urge this
committee to adopt them.
Thank you, and I look forward to your questions.
Chairwoman Maloney. Thank you.
[Inaudible] Mr. Smith.
STATEMENT OF ZACK SMITH, LEGAL FELLOW, EDWIN MEESE III CENTER
FOR LEGAL AND JUDICIAL STUDIES, HERITAGE FOUNDATION
Mr. Smith. Good morning.
Good government, accountability, and transparency are all
laudable goals, but as the committee considers many of the
proposals before it today, I can't help but think of the words
that the late Justice Antonin Scalia wrote more than 30 years
ago. When the Supreme Court was asked to consider the
constitutionality of the independent counsel provisions of the
Ethics in Government Act of 1978, which allowed for the
appointment of an independent counsel to investigate and to
prosecute certain high-ranking government officials, Justice
Scalia in a lone dissent, said, quote: Frequently, an issue of
this sort will come before the Court clad, so to speak, in
sheep's clothing, but this wolf comes as a wolf.
So too today, there are wolves lurking among the proposals
presented for this committee's consideration. As with so many
things in life, the goals are good, but the devil is in the
details.
So, when examining these details, I encourage the committee
members to keep in mind two overarching considerations, one
legal and one practical. Simply put, they're these: That each
member of the committee has an independent duty to ensure
themselves of the constitutionality of each proposed reform and
to ensure that each reform actually promotes good government.
So, let's start with the constitutional. It's undisputed
that our Founding Fathers created a system of government with
checks and balances. In James Madison's famous words, ambition
must be made to counteract ambition. Unless you think this is
some abstract idea without any impact on our day-to-day lives,
it's this separation of powers, these checks and balances, that
help ensure all of our other liberties.
Now, you may be saying fair enough, we agree, but what does
this have to do with the proposals before the committee? Well,
one proposal, for example, would make inspectors general
removable only for cause. Even a recent CRS report, which
examined this issue and examined the constitutionality of it,
said it could be constitutionally questionable to place for
cause removal restrictions on certain IGs who would be
impermissibly insulated from Presidential control by multiple
layers of removal protections. The current bill doesn't reflect
this concern and, at a minimum, it should.
But more to the point. Given the uncertainty and the
separation of powers concerns, would the potential damage to a
foundation principle of our system of government be worth any
corresponding benefits? After all, inspectors general are not
the only mechanism that Congress has for combating fraud,
waste, and abuse, or for seeking to put good government on a
firmer footing. Congress can conduct oversight hearings. It can
subpoena witnesses to appear before it. It can receive
whistleblower complaints. And, most importantly, it can even
control the power of the purse.
Then there's the broader concern that many of these
proposals are meant to look good without actually accomplishing
much in the way of substantive change. In that way, some of
these proposals can actually do more harm than good for two
reasons.
First, the bills would place new responsibilities on
government personnel, including IG personnel, without providing
additional resources to carry out their functions. It sets them
up for failure.
And, second, many of these bills deceive the public into
believing these proposals tackle pressing concerns when, in
fact, they simply give the appearance of taking action against
real or perceived problems.
Then, of course, there's concerns about the law of
unintended consequences. One proposal today that seeks to
combat whistleblower retaliation would add to the list of
prohibited practices the opening of any investigations as a
result of a protected disclosure. It's a noble goal, but it
doesn't take much imagination to see how this could be
manipulated in everyday practice.
Now, although this may seem farfetched, I have experience
with this. Early in my career as an assistant United States
attorney, I handled civil litigation on behalf of the United
States, including employment litigation. And it wasn't uncommon
for problematic employees who expected they would be
disciplined to file equal opportunity complaints, whistleblower
complaints, union grievances, or some combination of those in
efforts to set up a retaliation claim for whenever their
employer took action against them. By engaging in such tactics,
the problematic employees' underlying issues often went
unaddressed, and it created a chilling effect for the
supervisor to address the conduct of other problematic
employees too.
Of course, this isn't to suggest that every whistleblower
or even most whistleblowers have performance or conduct issues.
Many come forward for noble reasons and should be applauded,
but we must be honest about the current system's shortcomings
which can have an equally pernicious effect on good government
and accountability.
And, in closing, while my testimony today may be
interpreted by some as offering a slightly discordant note,
that's not my intention. I share this committee's desire to
improve government accountability and transparency, but just as
we should demand that government officials perform their duties
in an ethical manner, we must ensure that any oversight of
their conduct complies with the Constitution, actually promotes
good governmental policy, and avoids, to the maximum extent
possible, the law of unintended consequences.
Thank you for this opportunity to testify. I welcome your
questions.
Chairwoman Maloney. Thank you. The gentleman yields back.
I now recognize myself for five minutes for questions.
During Sunshine Week, I introduced several legislative
reforms aimed at making government more transparent because I
strongly believe that transparency is the key to holding
agencies and senior officials accountable. I introduced, along
with Ranking Member Comer, the Federal Advisory Committee
Transparency Act, which would make the advisory committees that
provide agencies with policy advice disclose who is serving on
them.
Mr. Mehrbani, do you believe that the public has the right
to know who is serving on Federal advisory committees? Mr.
Mehrbani.
Mr. Mehrbani. Thank you for your question, Chairwoman
Maloney. Federal advisory committees play an important function
in the Federal Government. They provide expert science advice
to committees, to agencies on a wide range of issues. And it's
important that the public understands if there are any
conflicts of interest, for example, that members on these
advisory committees may have. And I think that the reforms that
you and Ranking Member Comer have put forward would be strong
steps toward ensuring that kind of transparency and
accountability. And I think that the history that I've detailed
somewhat in my written testimony indicate the need for these
kinds of reforms, and I absolutely support it.
Chairwoman Maloney. The bill would also require that
advisory committee members disclose any financial conflicts of
interest. So, Mr. Mehrbani, do you think it's important for the
public to know if an expert serving on an advisory committee
has something to gain from making a particular recommendation?
Mr. Mehrbani. I do. And that's the similar kind of motive
that applies to the ethics rules for other Federal appointees.
Now, in some cases, it's completely understandable that you
would want to have somebody who is representative of a group of
constituents or even an industry, for example, that might
create a conflict of interest. But when the need for that
individual's voice to be included in the committee outweighs
the potential for a conflict, there's actually mechanisms in
the law that allow for designated agency ethics officials to
certify that they--that that conflict exists so it doesn't
create any sort of liability issues.
But, more importantly, it allows the public to rec---to see
that there's balance on these advisory committees. And,
frankly, I have to commend President Biden for issuing an
executive order that actually creates an interagency task force
to look at some of these issues. But as you know, this
committee should not have to depend on a President to act,
which is why I think that this legislation is so important.
Chairwoman Maloney. Thank you.
Ms. Hempowicz, I'd like to turn to you. Another
transparency reform I introduced is the Presidential Records
Preservation Act, which would require the President and the
President's senior advisors to create and preserve records of
official activities.
If we don't require the President or his senior advisors to
document their activities, do you think we're missing key
information about how decisions are made?
Ms. Hempowicz. Absolutely, Chairwoman.
Chairwoman Maloney. Mr. Connolly and Ms. Speier join me
today in introducing a package of reforms to protect
whistleblowers, called the Whistleblower Protection Improvement
Act. Whistleblowers disclose important information to Congress,
but they also provide important information to the public. One
example is the information that a former HHS scientist, Dr.
Rick Bright, shared on his concerns with the Trump
administration's strategy on fighting the pandemic.
Ms. Hempowicz, do you believe that strengthening
protections against retaliation for whistleblowers would
ultimately lead to more transparency and ultimately to better
policy?
Ms. Hempowicz. Yes, Chairwoman. Absolutely. I think, you
know, strengthening the system for whistleblowers, right now,
the system is broken, and so I think it is actually serving as
a deterrent from further whistleblowers coming forward and
exposing waste, fraud, and abuse within the Federal Government.
And I also just want to highlight that without
whistleblowers, we wouldn't know about the backlogs at the VA.
We wouldn't know that our servicemembers in Iraq didn't have
access to tanks that were sufficiently protecting them from
roadside bombs. And so, the work that whistleblowers do, not
only returns money to the Federal Government, but it keeps our
troops and our veterans safe. You know, there's no--there's
just--it's difficult to describe the value that whistleblowers
play, but it is far beyond just financial.
Chairwoman Maloney. I've also introduced, along with Mr.
Connolly and Mr. Sarbanes, a bill to modernize and update the
Plum Book. The PLUM Act would require the Office of Personnel
Management to maintain a publicly available directory of senior
government leaders.
These are just some of the bills I'm hoping to explore
further today. I urge my colleagues to support these measures
that would make government more open and accountable.
I now recognize Mr. Gibbs for five minutes.
Mr. Gibbs. Thank you, Chairwoman.
Mr. Smith, the Presidency and the Vice Presidency, as you
know, are constitutionally created offices with powers that are
separate from those of Congress. Are there constitutional
issues implicated in an attempt by Congress to legislate
recordkeeping requirements applicable to the President and Vice
President and their senior officials? Mr. Smith.
Mr. Smith. There certainly could be, Congressman. And more
to the point, you know, I think it is worth noting that, as you
mentioned, the President and Vice President are different than
many of the statutorily created agencies and offices set up by
Congress. And with the records keeping requirement for the
President and Vice President, one of the main concerns should
be what's the enforcement mechanism going to be for these acts,
and also, what about the increased administrative burdens on
both the Presidency and then also on the national archivists,
who will be responsible for maintaining and ensuring access to
these records. And so, I think both of those considerations
certainly deserve more thoughtful, more thorough discussion as
these bills are being considered and working their way through
Congress.
Mr. Gibbs. Thank you.
Mr. Mehrbani, you were President Obama's White House--part
of the White House Counsel and his personnel office. During the
Obama Administration, there was a lot of controversy about
recordkeeping for emails, including emails that could have
passed between President Obama and his Secretary of State,
Hillary Clinton.
Do you believe the terms of the Presidential Records
Preservation Act should apply--or should they apply to
President Obama's emails, including emails to Secretary
Clinton?
Mr. Mehrbani. I think that the Presidential Records Act
should apply to communications with the President. The bill
today, I think, would bring the Presidential Records Act in
line with existing legislation that applies to Federal
agencies. So, I'm not certain that the constitutional questions
might create some sort of additional problematic
responsibilities for the White House here.
Mr. Gibbs. So, when you were, you know, White House
counsel, would you have recommended to President Obama to
support or oppose the Presidential Records Preservation Act?
Mr. Mehrbani. Well, I'd--first, I'd like to say I was not
White House counsel. I was an associate counsel to President
Obama. And if I were in the White House and I saw this piece of
legislation, given the potential for it to ensure that records
are maintained by the White House, I actually would recommend
its adoption, sir.
Mr. Gibbs. OK. Well, Mr. Smith, there's been significant
evidence that former California Secretary of State Alex Padilla
misused the Help America Vote Act funds to contract with a
major political firm of Joe Biden's Presidential campaign. The
Election Assistance Commission and the IG stated to committee
Republicans that the allegations for misuse were credible, and
the EAC director, Inspector General testified before the
Subcommittee on Government Operations two weeks ago and stated
that the office is working on contracting a third party to
audit the contract six months after the original contract.
Would you agree that the IGs should be investigating the
allegations of wrongdoing quickly?
Mr. Smith. Well, I think that particular incident
highlights two points. One is what we were talking about
earlier. You don't want to set the IG offices up for failure by
providing them with additional responsibilities without
corresponding resources.
And then the second point, I think we need to rethink what
it means to have success in terms of an IG investigation. My
colleague at Heritage, Paul Larkin, has written about this in
law enforcement context. And I think a similar conversation
could be had in the context of inspectors general and
government oversight. What does it mean to have the successful
oversight investigation?
Mr. Gibbs. So, do you think this committee, Oversight
Committee, should be investigating these allegations of
wrongdoing since the IG and the EAC offices have shown that
maybe they're not able to do so?
Mr. Smith. Well, they're certainly serious allegations, and
from my understanding of the situation, that IG office is
underfunded and understaffed and is having a difficult time
investigating those claims. And so, again, I think any reforms
proposed would need to make sure that we are giving the IGs and
other oversight entities the tools they need for success and
not just passing legislation, again, that would look good
without actually making any substantive changes.
Mr. Gibbs. Consolidating IG offices, would that be an
efficient way to do it if they don't have the resources in the
smaller offices?
Mr. Smith. It's certainly a potential path that could be
useful to explore further. Also making criminal referrals for
investigation, obviously, if the Department of Justice or other
entities become involved. You know, there are many potential
paths that could solve this problem. But, again, I think in the
context of today's hearing, you don't want to set any of the IG
offices up for failure.
Mr. Gibbs. Thank you. I'm out of time.
I yield back, Madam Chair.
Chairwoman Maloney. The gentleman yields back.
The gentlewoman from the District of Columbia, Ms. Norton,
is recognized for five minutes.
Ms. Norton.
Ms. Norton. Thank you, Madam Chair.
I'm interested in whistleblowers, and my question is for
Ms. Hempowicz. I'm interested in whistleblowers because they
play a critical role for Congress itself and particularly for
this committee. We recently had a bipartisan investigation when
a whistleblower came forward from the Transportation Security
Administration, for example.
Your organization sees whistleblowers who provide
information, get severe retaliation, and that's where my
question is.
For example, there was a very high-profile example when a
witness was retaliated for cooperating with congressional
requests for documents or testimony. One of the most recent
high-profile examples was Lieutenant Colonel Alexander Vindman,
who was reassigned and had his promotion delayed. I think we
all remember that one.
Does it concern you that there may be a chilling effect on
the willingness of Federal employees to cooperate with Congress
because they have seen these public cases of retaliation?
Ms. Hempowicz. Yes, Congresswoman. Absolutely. I think that
it may have a chilling effect, and I think you may already be
seeing that. I think, you know, it's important to note that
there is a legal prohibition against interfering with anyone's
ability to work with a Member of Congress or to speak with a
Member of Congress under the Lloyd-La Follette Act, and that
should apply to whistleblowers, and yet there's no enforcement
mechanism.
And so, places like this, I think, in particular where
there's a legal avenue to pursue and to use as a whistleblower
but there's no way to enforce your protections, if you use that
legal avenue, I think what we do is we just incentivize people
to work outside of the proper channels. And I think that's
where we can see things like leaking classified information if
whistleblowers don't feel like they will be protected if they
use the protected channels that Congress has laid out for them,
or they just won't blow the whistle at all and then you won't
have the benefit of their experience.
Ms. Norton. The Whistleblower Protection Improvement Act
we're putting forward would limit public disclosure of the
identity of an employee who blows the whistle on a Federal
agency. Why is this important? And what impact would it have on
other whistleblowers if the identity of a whistleblower is
disclosed by an agency?
Ms. Hempowicz. Thank you. Thank you so much for that
question. I think, you know, the committee knows well the value
of allowing a whistleblower to be anonymous if they want to,
because the committee, both majority and minority, you on your
website say if a whistleblower comes to the committee, we will
protect your identity. And I think that's because you know that
protecting a whistleblower's anonymity is the No. 1 way to make
sure they won't be retaliated against. If their supervisors or
people at their agencies don't know who they are, it's
impossible to retaliate against a whistleblower.
Once it's--you know, but right now, the law does not
prevent people who know the identity of a whistleblower from
sharing that identity with others who would--may be able to
retaliate against that whistleblower, or breaking their
anonymity may also just be a form of retaliation itself. You
know, if you are a public servant and your name is now
everywhere all over Twitter as somebody who is a traitor, you
know, I think what happens is we tell future whistleblowers,
don't come forward, because instead of addressing the issue
that you're blowing the whistle on, we're going to drag your
name through the mud and ruin your life instead.
Ms. Norton. Could I further ask you, how would the
Whistleblower Protection Improvement Act, going forward, help
correct the existing system related to how Federal employees
can provide information directly to Congress?
Ms. Hempowicz. Well, it would allow whistleblowers to
enforce their protections for speaking with Congress, and so
they'd be able to have the benefit of whistleblower case law
saying, you know, you abused a protected channel and now you're
afforded this legal system, which I will say is not working as
well as it could, but there are other provisions in the bill
that would fix that legal system. And so, I think this bill
really--I couldn't encourage Congress to pass it more. I think
it's critically necessary, and I think it really does address
some of the biggest loopholes and most consequential loopholes
in our whistleblower laws today.
Ms. Norton. Madam Chair, the whistleblowers really help
Congress itself conduct effective Federal oversight, so I'm
urging all my colleagues to support this bill to protect the
employees who are courageous enough to come forward. And I
yield back. Thank you very much for this important hearing.
Chairwoman Maloney. The gentlelady yields back.
And the gentleman from Wisconsin, Mr. Grothman, is
recognized for five minutes.
Mr. Grothman.
Mr. Grothman. Thank you.
I'm going to start out with a question here to Mr. Smith.
There was some testimony that I thought sounded good on its
face until you think about it a little bit, and that concerned
the number of appointees that every President gets to fill out
his bureaucracy. I believe we were told that there are 4,000
appointees he has, of which 1,200 have to be confirmed. And the
implication was that we should have less of this, presumably
replaced by more civil service people, by more career people,
and less people who are immediately appointed.
I kind of look at it the other way. I want you to comment
on it. I talked to one appointee of the Trump administration.
She felt she had 2,000 people under her, and in general, she
felt the bureaucracy was hostile to her reforms. I thought how
difficult it was to have the imprint of a President on an
agency if you've, say, got this subagency of 2,000 employees,
and one person, just the one who is supposed to be able to
effect change.
Could you comment on that, Mr. Smith? Do you feel this is a
good or bad thing that really, again and again, we put people
in positions in which they apparently have even over a thousand
people under them and have very little ability to discipline
them or control them?
Mr. Smith. Yes. Thank you for the question, Congressman. I
think a couple of considerations go to your question. The first
is, you know, the Framers of our Constitution certainly
envisioned that the President would appoint high-ranking
Federal Government officials with the advice and consent of the
Senate.
And so, two points that I think others have raised that
would help alleviate some of these concerns would be if
administrations quickly put up nominees for many of the senior
positions in the Federal Government, and then if the Senate
would quickly give hearings to those executive branch nominees.
You know, someone made the point earlier that over the past
several years and administrations, the average time it's taken
to confirm executive branch nominees has increased greatly. And
so, I think addressing some of those concerns, the way in which
the current nomination and confirmation process works, could be
as effective at alleviating many of the concerns you raise.
Mr. Grothman. Can you see, though, the potential danger or
the difficulty? When I vote for a President, I expect that
Presidency to a certain extent have a certain vision for his
administration. Do you see that--apparently, the implication
was in the testimony that even 1,200 people who have to be
confirmed or 4,000 appointees, is clearly too much, and
presumably, we ought to have more civil service type appointees
and have less employees picked by the President.
Do you see the frustration there is with the swamp if, say,
one of President Trump's appointees winds up in charge of an
agency in which they have a thousand people under them, and
given President Trump's mandate, insofar as he had a mandate,
was to kind of cleanup the swamp, how difficult it would be for
this person to have any--implement any change? Do you see what
I'm saying? It's one of the problems with the government.
Mr. Smith. I do. And, certainly, to the extent you convert
positions from being politically appointed into civil service
positions, the risk always exists that those positions will be
less politically accountable. And to the extent you convert the
positions into ones that do not need the Senate's advice and
consent, that, in some ways, bumps up against concerns, again,
for the system of government that was established by the
Framers of our Constitution.
And so, certainly, a fruitful area for reform, again, would
be examining how the current confirmation process works and
suggesting potential mechanisms to make sure that works
efficiently.
Mr. Grothman. Yes. I'll just kind of wrap it up with a
statement, Mr. Smith. If you are--OK. First of all,
overwhelmingly, the bureaucracy, insofar as it's partisan, I
realize, you know, we have the Hatch Act [inaudible] overtly
partisan. But here in the District of Columbia, like, President
Trump got five percent of the vote, which indicated very few
Federal employees were voting for President Trump.
If you are appointed to run a group of a thousand people,
and you can't even have one person under you who you know for
sure is loyal to you, it makes it almost impossible to
implement the changes in government that you want.
Thank you for doing the extra few seconds.
Chairwoman Maloney. The gentleman yields back.
The gentleman from Massachusetts, Mr. Lynch, is now
recognized for five minutes.
Mr. Lynch.
Mr. Lynch. Thank you, Madam Chair. And I want to thank the
witnesses as well for their good work.
First of all, I certainly support, Madam Chair, your
legislation, as well as the legislation that has been earlier
referenced being sponsored by Mr. Connolly, Mr. Sarbanes, and
Ms. Porter. I fully support those measures.
To our witnesses, you know, back in 2008, Congress, in a
very bipartisan moment, created the Wartime Contracting
Commission, and it was modeled on the Truman Commission back in
1941. It was bipartisan in nature. It worked across several
different administrations, both Democratic and Republican. And
during the years 2008 to 2011, it actually turned up with about
between $30 billion and $60 billion in waste, fraud, and abuse
that was uncovered and did a very good job. Unfortunately, in
2011, it expired. It had a sunset provision in there and it
expired.
But now, with the way this Authorization for Use of
Military Force works, it is not limited in time. It is not
limited by territory. And yet we have a defense budget that is
approaching a trillion dollars. And as has been pointed out by
a few of the witnesses, it's not enough to just give
responsibility to IGs or other groups. You have to fund that.
You can't just pile that responsibility on top of everything
they're already doing.
So, I have a bill that would reauthorize the Wartime
Contracting Commission because of the expenditures that are
going forward, because of the preexisting Authorization for Use
of Military Force with no limitations on time or territory. And
I'm just wondering, you know, from your perspective, Ms.
Hempowicz or Mr. Mehrbani or Mr. Smith, do you think that would
be helpful? Is that the type of response, or is there something
else that we might be doing to really look at the huge
expenditures?
We've got massive waste. We've had previous hearings in
this committee about Defense Department expenditures regarding
the F-35 and other very expensive weapons systems that are not
responsive to the threat, first of all. They've just been
hanging on. They're sort of zombie programs, and they're not
really developing the progress that we would hope for after
injecting billions of dollars into these weapons programs.
So, with the remaining two minutes, I'd like to hear from
our witnesses. Ms. Hempowicz, if you might start.
Ms. Hempowicz. Yes, sir. Thank you, Congressman Lynch. As
you know, we put--the Project on Government Oversight
wholeheartedly endorses your legislation to bring back the
Wartime Contracting Commission. I think in addition to passing
that legislation, which as you correctly identified, you know,
has the potential to return billions of dollars in savings to
the taxpayer, I think, you know, the other proposals in front
of this committee right now, strengthening whistleblower
protections, ensuring inspectors general have the resources and
independence they need to do their jobs and the authorities
they need to do their jobs, I think they're are also critical
parts, part of that equation as well.
Mr. Lynch. Thank you.
Mr. Mehrbani?
Mr. Mehrbani. Yes. I think implicit in Ms. Hempowicz'
statement, which I'll just highlight specifically, is the fact
that the folks who are running these investigations and are
leading the inspectors, inspector general offices, also need to
be an independent, which is why I think the reforms to ensure
that a President can't install inspectors general, even in an
acting capacity, that have perceived or real conflicts of
interest is critically important.
Mr. Lynch. Great.
Mr. Smith?
Mr. Smith. Yes. Thank you for the question. Certainly,
effective measures to combat waste, fraud, and abuse are always
welcome. I'm not familiar with the specifics of your current
proposal, but the concerns about ensuring that these actions
aren't just for show but they're actually effective in terms of
accomplishing the goals they're set out to do, I think that's
very important. And then again, to remember that Congress has
multiple tools at its disposal, apart from the inspectors
general, to combat that waste, fraud, and abuse are certainly
worthwhile to keep in mind.
Mr. Lynch. Reclaiming my time. I only have 15 seconds left.
Mr. Smith, to be honest with you, the inspectors general and
these special commissions are really the tip of the spear.
Those other things that you're talking about, they get bogged
down. They really do. So, this is--the full-time work of the
inspector generals is really far and above, head and shoulders
above what we might do in committee because we're dealing with
a thousand different issues. We need it to be somebody's sole
responsibility and their sole job. That's the difference with
these inspectors general.
I yield back, and I thank you for the courtesy.
Chairwoman Maloney. The gentleman yields back.
The gentleman from Louisiana, Mr. Higgins, you are now
recognized for five minutes.
Mr. Higgins. Thank you, Madam Chair.
Improving government accountability and transparency, we
really ask ourselves, why does America not trust the
government? Let me share with my colleagues a simple formula.
Stop oppressing American's freedoms. Reduce the tax burden.
Reduce the regulatory burden. Stop punishing Americans who
actually work. Secure our sovereign border. Stop condemning 75
million Americans who supported President Trump and stop
spending trillions of dollars of American treasure that we
don't have.
We're talking about diving deep into the bureaucracies
here. I can tell you Americans that I serve and I work for and
I communicate with want an incredible reduction, the size and
scope of the Federal Government, in its interference in our
daily lives. It's a pretty simple formula.
Mr. Smith, I have two questions for you, sir. According to
the Founders' intent and under laws like the Inspector General
Act of 1978, the President has broad discretion to remove and
replace inspectors general in this case as he deems
appropriate. Congress' only statutory involvement with the
appointment and removal of IGs is through the Senate's advice
and consent. However, under Title I of H.R. 2662, which we're
discussing today, this bill attempts to curtail the statutory
authority by limiting the President's Article II power. And I
say again, the Founders intended for a duly elected President
to have broad powers within the executive branch.
Mr. Smith, disregarding what I would say is obvious the
political intent of this bill, what unintended constitutional
consequences could come from this? Please explain to America.
Mr. Smith. Well, thank you for the question. You're
absolutely right, The Framers of our Constitution intended for
us to have a government with separated powers among three
different branches. And so, to the extent that Congress seeks
to prohibit the President from removing an executive branch
official, that separation of powers concern is certainly raised
and implicated.
Now, in the 230-plus years since James Madison wrote about
this in the Federalist Papers, Congress has muddied the waters
to a great extent with that separation of powers, and the
Supreme Court has spilled a lot of ink discussing what the
appropriate boundaries are of that separation of powers and
what restrictions Congress can place on the President's
abilities to remove officials.
And, look, I'm certainly not impugning the work of the
inspectors general. They do important work. They do valuable
work.
Mr. Higgins. Yes.
Mr. Smith. But anytime Congress is placing restrictions on
the ability of the President to remove an executive branch
official, while at the same time as these bills propose to do,
expand the power of that further-insulated official as, again,
as these bills propose to do, I think it certainly raises a
concern that merits further discussion.
Mr. Higgins. Thank you for that clarification, sir. It's
clear to me that this is certainly questionable from a
constitutional perspective.
One more question. Under Title III of the same bill we're
discussing, there's a prescription for specific requirements in
how, when, and who the President can fill an IG vacancy with.
Do you know of any other Senate-confirmed position in the
executive branch that requires this kind of litmus test?
Mr. Smith. Well, it's certainly part of the larger
discussion and reforms being proposed in terms of who the
President can appoint to be acting officials. And, again, I
point the committee members back to the concern about this
separation of powers and the need for the nomination and
confirmation process to wrong well and to work, frankly, more
expeditiously than it has so far. And in that way, by
confirming the nominees that a President puts forward, many of
these concerns around acting officials can be avoided.
Mr. Higgins. So to summarize, do you concur that this bill
and the bills of this type have constitutionally questionable
intent and would be challenged under Article III?
Mr. Smith. I think they certainly raise constitutional
questions potentially, and I would anticipate that there would
be litigation surrounding them. Now, what the outcome of that
litigation would be is difficult to predict, but the fact that
the issue has been flagged I think means that this committee
and Congress as a whole should pay careful attention to those
issues and avoid them to the greatest extent possible.
Mr. Higgins. I concur.
And I thank the chairwoman for holding this hearing today.
And I yield, Madam Chair.
Chairwoman Maloney. The gentleman yields back.
The gentleman from Virginia, Mr. Connolly, is recognized
for five minutes.
Mr. Connolly. Thank you, Madam Chairwoman. And thank you to
all of our panelists.
I always enjoy my colleague and friend from Louisiana and
his insights. I must say he reads a different set of history
books than I do with respect to the broad powers granted the
executive.
The writers of the Constitution, led by James Madison,
actually wanted to circumscribe executive power. They were
extremely suspicious of an unchecked executive and, in fact,
that's why Article I is about Congress and its powers, not
about the executive--that's Article II--and then expected
Congress to do its constitutional duty in delineating and
circumscribing the powers of the executive. And so, it's
perfectly within the constitutional frame envisioned by the
Founders and the writers of the Constitution that we have
today's discussion about putting some checks and balances on
the executive to avoid capricious or, even worse, malign
behavior in the removal of people who are supposed to be
independent inspectors general.
Ms. Hempowicz, welcome back.
Ms. Hempowicz. Thank you.
Mr. Connolly. You and I talked at our hearing, and I'd like
to talk about it now. How effective do you think the
interagency Council of Inspectors General is in transparency
and accountability with respect to IGs?
Ms. Hempowicz. I don't--I don't think it's as effective as
it could be. I think it is--it's more effective than the system
that had been in place prior to the creation of CIGIE and the
Integrity Committee, but I think, you know, the legislation
that you've put forth, Congressman, would greatly increase
transparency with how both CIGIE and the Integrity Committee
operate and oversee inspectors general.
Mr. Connolly. And I'd like to point out to my friend, Mr.
Gibbs, if you're there, you talked about bipartisanship. Mr.
Hice, the ranking member of my subcommittee, has cosponsored.
He's the coauthor of the bill on trying to provide more
transparency and accountability for CIGIE. So, we're very proud
of the fact that out of our subcommittee we've got a bipartisan
bill. By the way, Mark Meadows was my original cosponsor in the
previous Congress on this bill. So, this isn't about
partisanship in this particular case.
Ms. Hempowicz and then Mr. Mehrbani, could you elaborate a
little bit, why is it important that we make sure that there is
accountability for IGs in the event of misbehavior,
partisanship, or malfeasance on the part of an IG? Why is that
important?
Ms. Hempowicz. Thank you so much for that question,
Congressman. I think, you know, given the role that inspectors
general play in Congress, and I think, you know, their value is
proven by the fact that Republicans and Democrats ask
inspectors general all the time to investigate matters that are
important to you. So, I think, you know, part of that is why
it's so critical that they are exercising those authorities
responsibly.
And I will just highlight that, you know, I think we talk
about for-cause removal protections, and I think a lot of the
time the conversation around that implies that the for-cause
removal protections give IGs unlimited protection from removal.
That's not the case at all. It just protects inspectors general
from warrantless removal.
Mr. Connolly. Right.
Ms. Hempowicz. And so, it's not this--it's not this check
against the President from holding IGs accountable. In fact, it
creates a roadmap for Presidents to do just that in a way
that's unimpeachable.
Mr. Connolly. Mr. Mehrbani?
Mr. Mehrbani. Thank you for that question. As Mr. Blockwood
referenced in his opening statement, trust in government is at
incredible lows. And I think that if you don't provide some
independence and allow these IGs to do their jobs, then you're
never going to get American people to begin trusting government
again.
And what's more is that, you know, in a lot of ways what
the legislation you're proposing is going to do is in line with
what the original Inspector General Act of 1978 does. That act
actually required the President to provide reasons to Congress
for the removal of an IG, and as Ms. Hempowicz just
articulated, the President would still have several reasons
that he or she would be able to point to, to remove an IG, but
the bill would require that those reasons are explained to
Congress. So, it really brings it into line with what Congress,
I think, originally intended.
Mr. Connolly. And final point, Mr. Mehrbani. Right now, if
an IG is, in fact, found to have committed wrongdoing by the
Integrity Committee, the only way we know about it is in the
annual report. Is that correct?
Mr. Mehrbani. I believe that's right.
Mr. Connolly. And that's not adequate.
Mr. Mehrbani. I don't think that that is adequate.
Mr. Connolly. I thank you. My time is up.
I yield back. Thank you, Madam Chairwoman.
Chairwoman Maloney. Thank you.
The gentleman from Arizona, Mr. Biggs, is recognized for
five minutes.
Mr. Biggs. I thank the chairwoman. I thank the panelists
for being here today.
Look, we've been talking and received some information of
opinions on the executive power vis-`-vis legislative power,
and that's a great debate to have some time, but part of the
reason--and then we've conflated this into the lack of trust in
the Federal Government. And part of the reason for that, of
course, is that we have an overbloated, overbloated government
that is huge with regard to the bureaucracy and the
encroachments that we have in the lives of everyday Americans.
And as we go through this hearing today, I'm reminded--I
had to pull this up, but I was reminded of some works that
Friedrich Hayek wrote about 65 years ago when he said:
Is there a greater tragedy imaginable than that in our
endeavor consciously to shape our future in accordance with
high ideals, e should, in fact, unwittingly produce the very
opposite of what we've been striving for.
And that's where I think we may be doing today as we do, as
we consider this bill. It's an important bill, of course. This
hearing, however, I think, merely serves as yet another excuse
to attack the legacy of President Donald Trump by trying to
claim he was guilty of all manner of abuse of power. The
legislative agenda that backgrounds this full discussion, the
so-called Protecting Our Democracy Act, was introduced by
Representative Schiff right before the Presidential election
last year, solely to try to tip the scales in candidate Biden's
favor. And we know that because the bill was never debated or
marked up in any one of the eight committees to which it was
referred, including this particular committee.
Speaker Pelosi stated that the Protecting Our Democracy Act
was designed to address President Trump's, quote, staggering
litany of abuses and ensure that they can never happen again by
anyone, close quote. That's just partisan hyperbole. In fact,
Ms. Pelosi's rhetoric would have us believe that Representative
Schiff's legislation was so critical to our Republic's survival
that we in Congress would be totally remiss not to dedicate our
full attention to it, and yet she assigned it to eight
committees that didn't even hear it.
A magical thing happened. After the November election, the
bill almost completely disappeared from congressional
discussions, and that's a shame because there are at least a
few provisions in last year's Protecting Our Democracy Act that
are worth discussing and seriously debating and considering.
But I hope everyone in this room will forgive me for expressing
a healthy dose of cynicism, given the fact that most of
Representative Schiff's bill was clearly nothing more than a
messaging vehicle for partisan purposes.
The reality is that IG reform will always be a challenging
endeavor because the Constitution grants Presidents broad
staffing and firing authority, inherently.
Mr. Smith, I know you're very worried of nearly all
potential reforms we've been discussing today, and I certainly
share your concerns. And I also very much agree with your
statement that many of the proposals we've been discussing
deceive the public by simply giving the appearance of taking
action against real or perceived problems while doing little to
actually address them.
Nevertheless, as an intellectual exercise, I am curious to
know what specific reforms among the menu of options we've been
discussing and that are in this piece of legislation you find
most and least objectionable on strictly constitutional grounds
if you were asked to place them along the spectrum.
Mr. Smith.
Mr. Smith. Well, I certainly think most concerning are the
for-cause removal provisions for the inspector generals. And I
think an important point needs to be made here. Under the
current system that's in place, if a President is deemed to
have improperly removed an inspector general, he or she can
certainly pay a political price in terms of if Congress views
them to have acted improperly or if the American public has
viewed them to act improperly. Then a political price will be
paid.
And then more to the point, even if the removal provision
or other acts are ultimately upheld to be constitutional, we
still have to ask whether they're wise policy. And we saw that,
if we go back to the independent counsel provisions from the
Ethics in Government Act of 1978. The Supreme Court upheld the
constitutionality of that provision, over Justice Scalia's lone
dissent, but later Congress ultimately let that lapse because
of unintended practical consequences that really showed that
there were problems with how that functioned in practice.
So, I think we certainly need to be concerned about these
for-cause removal provisions that could impede on the Article
II power of the Presidency. And then other policies, you know,
such as those relating to the Federal Advisory Committee, may
not necessarily have as pronounced constitutional concerns but,
again, I think it's still worth considering what the practical
unintended consequences of those reforms could be.
Mr. Biggs. Thank you. I yield back.
Chairwoman Maloney. The gentleman yields back.
The gentleman from Maryland, Mr. Raskin, is now recognized
for five minutes.
Mr. Raskin. Thank you very much, Madam Chair, for calling
this important hearing.
And talk about fighting the last war. My friend, Mr. Biggs,
invites us to believe that the legislation was just a partisan
[inaudible] on Donald Trump that he brought to Congress, or the
Democratic leadership of not pursuing it aggressively enough
against Donald Trump. But if it were purely partisan, why would
we be bringing it up now when Joe Biden is President? So I
don't know. Somebody needs to update the talking points a
little bit over there.
Let's see. I'd like to start with Mr. Blockwood. Can you
explain why we need to update the Plum Book?
Mr. Blockwood. Yes, thank you for the question. The Plum
Book is, as I stated earlier, grossly outdated at times and is
not reflecting the most accurate information. And so, we need
to fix it with providing real-time information, fixing errors
that we already know not to be accurate, and making it readily
accessible in a more downloadable and machine-readable format.
For example, the current Plum Book is missing at least 10
organizations. It's only filled--it only comments on filled,
not vacant, positions, and it does not include the new cyber
director and the Executive Office of the President, and is
missing a summary of the positions in the White House. This
information----
Mr. Raskin. OK. Can you explain why that's an actual
problem for the American people and for democracy for us not to
have up-to-date data and information about who occupies
different Federal posts?
Mr. Blockwood. Yes. I believe a fundamental part of
accountability is transparency. And so, if the American public
does not know who is filling a position, it makes it hard to
know who's making decisions on their behalf and who can hold
them accountable.
Mr. Raskin. OK. Thank you much.
Ms. Hempowicz, my former student, who I'm very proud of,
let me come to you and ask this question. Inspector generals
play a critical role in checks and balances within each agency
and department. As a number of the witnesses have pointed out,
they've saved us tens of billions of dollars--or saved the
taxpayers tens of billions of dollars in money that would have
gone to corrupt schemes, self-dealing, waste, abuse, giveaways
to special interests and so on.
So, why is it important for us to say that the President
can only sack an inspector general for a good reason? Why
wouldn't we want the President just to be able to get rid of
these inspectors general at will?
Ms. Hempowicz. Thank you for that question, Congressman.
And I raise this example only because it's relevant, not
because I want to harp on President Trump. I've heard that
that's not what this hearing is for.
Mr. Raskin. Yes, you don't have to apologize for using
facts in the committee.
Ms. Hempowicz. Well, just simply, last year when the
President in quick succession removed or sidelined four
inspectors general, what we heard from the remaining inspectors
general was that they were terrified to do their jobs. And that
is--that's terrible for the American taxpayer. If IGs are
worried at the beginning of an investigation that it may, at
the end of that investigation, lead back to anybody that has
the political favor of the President, then they're incentivized
not to do those investigations at all.
And I think, you know, it's important when we talk about
the financial return that inspectors general have and that is
absolutely critical, but I also hear members on the Republican
side of the aisle talking about having concerns about when the
government infringes on people's constitutional rights. That is
also well within the inspectors general investigative mandate.
And so, if we want these independent inspectors general to
do their job that not only save taxpayers money, but also
uncover instances where the executive branch is abusing its
authority against the American people, independence is a
critical part of that. And I will just highlight again that
before the Inspector General Act of 1978 was passed, these jobs
were being done within the executive branch, and Congress found
that it was a failure because those people doing those
investigative and oversight roles were not independent and so
they weren't investigating in a fulsome way. And it was--and
what the result was, was that there was inefficient and
ineffective oversight over executive branch programs. And I
don't think that's what we want. And so, I think it is really
critical to recognize that the independence that was built into
the IG Act when it was passed is not working.
Chairwoman Maloney. We seem to have a technical problem
now.
Can you hear me, Mr. Raskin?
Well, frozen.
OK. The chair now recognizes Mr. Clyde. He's now recognized
for five minutes.
Mr. Clyde.
Mr. Clyde. Thank you, Madam Chairwoman, and I appreciate
the opportunity during this very important hearing.
I think that we should be reducing the size of Federal
Government and going back to the 18 enumerated powers in the
Constitution--the Constitution provides. The American people
deserve a government that doesn't overburden them with
excessive regulation, because we want to live our lives as free
of government as possible.
Now, I'd like to followup on Congressman Grothman's line of
questioning--I thought it was very excellent--concerning the
ability of a duly elected President to properly focus the
branches of the executive on the agenda that the President was
elected to implement.
So, my question would be to Mr. Smith. Would reducing the
number of positions requiring Senate confirmations be
beneficial to our country? And, if it would, what do you think
that would look like?
My understanding is there are about 4,000 total positions,
and as I heard in earlier testimony, about 1,200 of them
require Senate confirmation. I understand from committee also
that all of them--that none of them are exempt from the 60-vote
rule in order to bring a position to the Senate floor for
confirmation.
So, would you give me your thoughts on that, please?
Mr. Smith. Sure. And I appreciate the question. Generally,
those who exercise power on behalf of the United States in the
executive branch are classified as either officers or
employees, and then there are principle officers and inferior
officers. And the Supreme Court's talked about what can be done
by each of those categories and what's the appropriate
appointment process for each of those entities and what
authority they exercise.
And so, for us to really have an informed discussion about
this, I think we need to stop and consider: What is the
authority? What are the functions of each one of those
positions? Because, certainly, if they are exercising
significant authority on behalf of the United States, the
Framers of our Constitution intended that they would be
nominated by the President and confirmed by the Senate.
And so, I think your point that to the extent we can ensure
that this process works as it was envisioned, ensure that the
administrations timely put forward nominees and the Senate
timely considers them, the better off we will be and the more
functional our government will be.
Mr. Clyde. Well, thank you. I appreciate that very much.
I do believe that those with significant authority should
be Senate-confirmed, but I also see that an executive branch
can be--that it be can difficult for an executive branch to get
their policies implemented when you have bureaucrats in the
executive branch that basically want to resist.
Now, I've got a question also for Elizabeth Hempowicz. You
are the director of Public Policy, Project on Government
Oversight. And I understand that earlier this year, you had the
opportunity to speak in the House Budget Committee about a
particular publication that you had. Organizations like yours,
the Project on Government Oversight, offer valuable support to
efforts of Congress and inspector generals to root out waste,
fraud, and abuse in government. And I understand that the
Project on Government Oversight began in 2020 to publish its
own reports on government waste, fraud, and abuse related to
COVID-19 spending, but that the project stopped publishing its
reports on January 14, 2021, less than a week before President
Biden took office.
So, as the director of Public Policy, can you help me
understand why the Project on Government Oversight stopped
publishing this waste, fraud, and abuse report just as
President Biden was taking office? There's a tremendous amount
of money that has been pumped into our economy, whether it's
the CARES Act or whether it's the current American Rescue Act
or the--this new act coming out, this infrastructure act. And I
think that a report like yours is important. So, can you give
me some background as to why this report--why you stopped
publishing it?
Ms. Hempowicz. Yes, absolutely. And thank you so much for
the opportunity to clarify that, Congressman. That was not a
report. I think what you're referring to is a newsletter that
we were publishing on a weekly basis that aggregated our
investigative work and kind of broke it down in a little bit
more simple terms. So, we did stop doing that newsletter, but
we certainly haven't stopped publishing our investigative
reports that are looking at waste, fraud, and abuse in COVID
spending, but also more generally, government spending across
the board.
In fact, we've put together the most comprehensive tracker
that we're still updating, we continue to update, with
information about where exactly all the money that we've spent
on COVID relief is going.
We--as we put together that tracker, we are also
highlighting--we began doing it for the Trump administration,
we're continuing to do it under the Biden administration--
highlighting for the administration where there are holes in
that data that is making it more difficult to conduct rigorous
oversight from our perspective but also from Congress'
perspective.
And so, I would just--I thank you for the opportunity to
clarify. We absolutely have not stopped doing our investigative
work on COVID relief or, broadly, on the Federal Government,
more generally. What we did stop doing was publishing that one
weekly newsletter. But quite frankly----
Mr. Clyde. Well, let me ask you this. How does the public
get to see that?
Ms. Hempowicz. Everything is on our website. We also still
have, I think, three or four other weekly newsletters that we
publish. They're just in a slightly different format. We also
put out video explainers on our Instagram, on our Twitter. We
are constantly trying to figure out new ways to get our
investigative work to the public in an accessible way. And that
newsletter was one of those, but it was never intended to be a
permanent product.
And then we--and I guess, you know, I think it just bears
mentioning again because, Congress, you have the ability to do
something about this. One of the reasons why it was difficult
to keep that newsletter going is because of the holes in the
data. It is incredibly difficult to oversee the spending right
now.
Chairwoman Maloney. The gentleman's time has expired.
Mr. Clyde. Thank you.
Chairwoman Maloney. I now recognize the gentlelady from
Florida, Ms. Wasserman Schultz. She's now recognized for five
minutes.
Ms. Wasserman Schultz. Thank you, Madam Chair. Madam Chair,
I appreciate you holding this very important hearing.
This committee, Mr. Mehrbani, has jurisdiction over the
Hatch Act, which I know you know, and that ensures that the
Federal Government is run in a nonpartisan manner.
Specifically, the Hatch Act prohibits executive branch
employees from using their, quote, official authority or
influence for the purpose of interfering with or affecting the
results of an election.
Mr. Mehrbani, why is it important that executive branch
officials keep political campaigning separate from official
agency business?
Mr. Mehrbani. Official agency and government business is
meant to support the public interest and implement government
programs. If government officials were allowed to use their
perch on behalf of a partisan political candidate, that could
unfairly provide them an advantage and it could distort our
political process. And, moreover, it's not the appropriate use
of government resources. That's not what you as Congress have
authorized Federal branch agencies to do.
Ms. Wasserman Schultz. Seems very straightforward and
simple. Thank you.
Ms. Hempowicz, during the Trump administration, we saw
gross abuse of the Hatch Act. Kellyanne Conway, for example,
committed such egregious violations of the Hatch Act that the
Office of Special Council recommended that President Trump
remove her from Federal service. We know, however, that he
refused to hold her or other senior officials who violated the
Hatch Act accountable.
Should political appointees be exempt from punishment from
Hatch Act violations?
Ms. Hempowicz. Thank you for the question, Congresswoman.
Absolutely not. I think it sends exactly the wrong signal to
the American people to hold civil servants to a higher standard
than we hold political appointees to.
Ms. Wasserman Schultz. And would it be helpful to
strengthen the Hatch Act by clarifying that it applies to
senior political officials, including those in the White House,
and not just those who serve?
Ms. Hempowicz. Absolutely. It's my belief that the law does
already cover them, but we have seen that the Office of Special
Counsel has taken a narrower reading. And so, I think for that
reason alone it is absolutely critical to clarify that in the
law.
Ms. Wasserman Schultz. Ms. Hempowicz, during the
committee's oversight of the Hatch Act implementation during
the last administration, it came to light that the Office of
Special Counsel doesn't have a consistent policy for when to
publicly release findings of Hatch Act violations. Now, this
could lead to inequitable treatment of career employees
compared to political employees.
Should the Office of Special Counsel adopt a transparent
policy for when to publicly release findings of the Hatch Act
violations? And would it help if Congress mandated that the
agency adopts a consistent policy for disclosing violations?
Ms. Hempowicz. Absolutely. I think it would help very much.
Ms. Wasserman Schultz. The Hatch Act is intended to protect
our democracy and ensure that government officials don't abuse
their power or resources of their position for partisan
purposes or to advocate, as you both mentioned, for an outcome
in an election. I'm not really worried about this
administration, but it is critical that the law is clarified
for those who plan to abuse their power from finding any
loopholes.
[Inaudible] And I just think it's important to remember
that, not only did we see Ms. Conway's repeated gross
violations, but we actually had the Secretary of State give a
speech to the Republican National Convention while he was on
official business overseas. They held Republican National
Committee events on the south lawn of the White House.
We just have to make sure that these abuses of power, which
in previous administrations only occasionally took place and
certainly weren't as flagrant as the Trump administration's.
The American people do have the [inaudible] to expect
government activity and political activity is separate. We have
that standard that we're supposed to abide by and we punish
Members of Congress when they do not, and we need to make sure
that throughout the executive branch that occurs as well.
Madam Chair, thank you for the opportunity to highlight
these important transparency and important government integrity
issues. I yield back the balance of my time.
Chairwoman Maloney. The lady yields back.
The gentleman from New Mexico--Ms. Herrell, the gentlelady,
is recognized for five minutes.
Ms. Herrell.
Ms. Herrell. Thank you, Madam Chair. And I appreciate all
of the witnesses appearing today.
Just a quick question for Mr. Smith. We know how important
the inspector generals are, what an important role, a critical
role that they play in rooting out fraud, waste, and abuse. Can
you discuss quickly what problems have arisen from the
vacancies in the inspector generals under both Republican and
Democratic administrations? And how would you propose we ensure
that IG vacancies are filled quickly? And also, when an IG
position is vacant, what are the impacts that your office sees?
You know, how does it impact the administration or Congress'
ability to continue to function when we have so many vacancies?
Mr. Smith. Sure. Thank you for the question. Again, I think
it's imperative that administrations put forward qualified
nominees for the positions and that the Senate quickly moves on
these nominees to grant them a hearing and either confirm or
reject them. And, certainly, the inspectors generals, I think
all of us here today agree, they do valuable work. But really
the--what I would like to highlight is to ensure that any
authority that's given to the IGs, any restrictions that
Congress places on the President's ability to oversee the work
of the IGs is done within constitutional bounds and also with
an eye toward potential, practical, unintended consequences.
Again, I'll reference back to the independent counsel
provision of the Ethics in Government Act of 1978, certainly a
laudable goal to root out potential criminal violations by
high-ranking government officials, but there were significant
constitutional concerns and, in practice, I think it became a
bipartisan consensus that there were many practical concerns
with the way that the independent counsel functioned.
And so, again, I think members of the committee should be
sensitive to both of those aspects as the committee examines
potential reforms to the inspector generals authority and
protections.
Ms. Herrell. Yes, and thank you for that. And I think this
is a very important conversation to be having today because it
just feels like we have way more government--it's more politics
than people, and I think the people of America deserve
transparency and limited government.
Do you think 4,000 appointees is too many?
Mr. Smith. Well, I think it's certainly something that
deserves further conversation. Again, obviously, if these
appointees are exercising significant authority on behalf of
the Federal Government, the Framers envisioned that they'd be
appointed by the President and confirmed by the Senate. And so,
examining what exactly is the role and function of each of
these positions would be very important before deciding on what
reforms should be enacted.
Ms. Herrell. OK. And just a final question for Ms.
Hempowicz. And I just kind of want to give you an opportunity
to go a little further from a question that one of my
colleagues just asked as it related to the reports and the
newsletters. You had mentioned that it's a bit difficult right
now to get access to the information necessary in terms of the
amount of money, what's happening with the COVID relief
packages, et cetera.
Can you expand on that a little bit? What is the roadblock?
And what can we do to ensure that you're getting the necessary
information so American taxpayers can understand where this
money is being spent and how much is being spent?
Ms. Hempowicz. Yes. Thank you so much for that question. I
would love to clarify.
The CARES Act included in it some very specific and
detailed reporting requirements that would apply to almost
every single pot of money that was appropriated by the CARES
Act and subsequent legislation to respond to the coronavirus
pandemic. That specific reporting requirement would have also--
would have included recipients of those funds reporting back on
a quarterly basis to the government how many jobs they were
able to support with that funding. This would not only have
applied to the PPP program but any program under the CARES Act
and subsequent legislation.
Unfortunately, the Office of Management and Budget at the
White House almost immediately, after the CARES Act was passed,
undermined those reporting requirements by telling agencies
that they didn't have to collect any new reporting and could
rely on existing reporting mechanisms, despite the fact that
none of those existing reporting mechanisms included the
ability to collect that number of jobs. So, that's one example.
I would also say that because of that guidance, we ended up
relying heavily on the USA's spending system and, in part, some
of the problems there is that there just aren't detailed
product descriptions on what--or project descriptions--I'm
sorry--on what that money is supposed to be used for, and so it
makes oversight incredibly difficult.
Ms. Herrell. Thank you Madam Chair.
Chairwoman Maloney. The gentlewoman's time has expired.
Ms. Herrell. I yield back.
Chairwoman Maloney. The gentlewoman work from Michigan, Ms.
Tlaib, is recognized for five minutes.
Ms. Tlaib. Thank you, Chairwoman Maloney.
Federal whistleblowers often provide key information about
waste, fraud, abuse in our government at great personal risk.
Far too often these individuals who are literally putting their
well-being--the well-being of our country ahead of their
careers and self-interests face retaliation and abuse from
those in positions of power in both the public and private
sectors.
The members of this committee have seen this abuse
firsthand, from airport employees moved hundreds of miles away
to new duty stations for reporting concerns with security
flaws, as well as White House supervisors moving files beyond
the reach of a disabled employee who raised the alarm about
security clearances issues.
In my district alone, we've heard from Census workers who
were fired for reporting problems in Census data collection,
and EPA employees punished for requesting to be safe in the
workplace because of air quality concerns.
I knew this was important when this bill, this specific act
under the leadership of Chairwoman Maloney, I knew this was
important when the Federal employee who called me directly to
tell me, whispering to me, that ICE agents were patrolling
residential communities and profiling my neighbors. That agent
was so incredibly afraid to come forward because there aren't
enough protections, especially in agencies like ICE that have
gone unchecked.
A key reform that was left out of the Whistleblower
Protection Enhancement Act of 2012 was the right of Federal
employees who blow the whistle to have their case heard by a
jury rather than a judge.
So, Ms. Hempowicz, could you briefly explained why it's
important that whistleblowers have a right to a jury trial?
Ms. Hempowicz. Yes. Thank you so much for the question. I
think there's two very important reasons at the moment. The
first and most pressing is that the bureaucratic body that
exists right now to hear a whistleblower's retaliation
complaint has no members and hasn't had a single member in
three years. So, it's been without a quorum for four years.
That means that any whistleblower coming forward right now with
a complaint of retaliation goes to the end of an over 3,000-
person line or case line, and so they're effectively shut out
of relief.
But even more, even if there was a fully functioning Merit
Systems Protection Board, frankly, it has not always been the
most friendly place to whistleblowers. Even now, the Merit
Systems Protection Board is--sorry--the Office of Special
Counsel recently reached out to the Merit Systems Protection
Board and filed an amicus brief, urging the Merit Systems
Protection Board to stop asking whistleblowers to meet a legal
standard that is nowhere in the law.
So, it's--you know, I just think for those two reasons it's
not functioning. And even when it is functioning, it's not
always there operating with the interests of whistleblowers or
taxpayers in mind.
Ms. Tlaib. And you mentioned--I'm so glad because this was
my next question. The Merit Systems Protection Board, you know,
does not issue--if they don't, like, issue a decision in a
timely manner, you know, there should be all these processes in
place in this bill. But it has a lacked quorum, like you said,
since 2017 and hasn't had a single board member since 2019. Why
do you think that's the case right now?
Ms. Hempowicz. You know, it's hard to say. I mean, it's
just speculation, but I think it's just not--it's not the most
important thing to a President to make sure that this board is
staffed. I was very excited to see President Biden put forth a
nominee last week, but it's just one of three. And so, I would
urge the White House to quickly followup and make two more
qualified nominations for the Senate to consider expeditiously.
Ms. Tlaib. Yes, I hope my colleagues heard that. I think we
can definitely work with this administration to make that
happen.
I know strengthening the whistleblower protection against
retaliation has strong support, is critically important to
protect our country from harm. I want to point out that in
October 2020, there was a poll that found 86 percent of
Americans, our neighbors across the country, believe that there
should be a stronger protection, legal protection for
whistleblowers who report government fraud.
So, I hope my colleagues, all of us, would continue to
support the Whistleblower Protection Improvement Act, which we
all believe very much is long overdue and must be enacted.
And I thank you again, Chairwoman Maloney, for your
leadership. And I yield back.
Chairwoman Maloney. The gentlelady yields back.
The gentleman from South Carolina, Mr. Norman, is
recognized for five minutes.
Mr. Norman. Thank you, Chairwoman Maloney. And thank you
for the panelists that have taken their time today.
Mrs. Maloney, I would like to enter into the record, ask
unanimous consent to enter into the record a letter from the
National Association of Assistant United States Attorneys,
which are voicing their opposition to the Inspector General
Access Act.
Chairwoman Maloney. Without objection.
Mr. Norman. Thank you so much.
Let me--a comment by Mr. Mehrbani about the accountability
or, I guess, the opinion of most--a lot of Americans that
distrust government. I think a lot of that is due to the bait
and switch that this administration is doing, as in naming
something a particular bill, such as COVID relief, and having
nine percent actually go to COVID relief, or infrastructure
when six percent goes to infrastructure. They're using a bait
and switch to use money in other places, and Americans are
tired of it.
And as Clay Higgins mentioned, after 103 days to have the
reckless spending that we're having, the debt to GDP is going
to increase to 102 percent at the end of 2021. That's
insulting.
But, Ms. Hempowicz, let me ask you. Considering these
things and the opinion of so many people about improving
government accountability and transparency, what in your
organization is--what are they doing to work on reports that
assure that the Federal dollar is going where they said? In
many cases, the language is so general that they can use it for
a lot of different things. Is anything in place or in the works
to make sure that doesn't happen or to cut down on it?
Ms. Hempowicz. If you're talking specifically about COVID
relief, I mentioned earlier that we put together a website that
tracks where different--where different relief programs are
sending money. We've broken it down across ZIP Codes across the
country. We've broken it down by programs and by recipient of
those funds. But--but the problem I mentioned earlier is also--
is limiting our ability to answer the specific question that
you asked, are those dollars being used for the intended
purposes?
And that, again, I go back to the guidance that was issued
by the Office of Management and Budget last April that
undermined the reporting that would have given us more specific
information, not just from recipients of funds about what you
intend to do it with and what you have done with it on a
quarterly basis, but it also required reports from agencies as
they sent money out to these recipients to report to the
Pandemic Response Accountability Committee what exactly those--
that money was supposed to be used for. And instead what we're
now relying on is the USA spending infrastructure where, again,
we know--we've known for years that there are severe
deficiencies when there's money reported into that system,
particularly around the project description. What is this money
supposed to be used for? And that really undermines the ability
of independent watchdogs like POGO, but also inspectors general
and Congress in conducting rigorous oversight, especially given
the lack of resources that we all have.
Mr. Norman. OK. Thank you.
Mr. Smith, let me--I'd like to discuss the role of
inspector general in exposing current government employees who
are committing crimes, and I say serious crimes or violent
crimes. I would say, like, a serious crime would be if you were
on a Select Committee, getting military information that others
don't get, and if you're sleeping with a spy, that would be a
serious crime.
But let me ask you. If a Federal employee were convicted of
a serious or violent crime off the clock, is there any laws,
consequences that would require his removal--his or her removal
from office?
Mr. Smith. Well, I think it would depend on the specifics
of the crime, and we need more factual information. But,
generally speaking, inspector generals, their primary role is
to combat fraud, waste, and abuse in the Federal Government.
Now, sometimes their investigations do lead to criminal
referrals, and most inspector generals and the appropriate
agents within their offices do exercise some criminal
investigatory authority.
But I think one of the proposals before the committee today
that merits further consideration is the proposal to give
inspectors general increased administrative subpoena power. I
think the committee should take a closer look at this because,
not only would the committee and these proposals be expanding
the authority of the inspectors generals, while at the same
time insulating them from further political accountability, if
there is a legitimate concern about a criminal act having
occurred or a criminal investigation, then the grand jury
process and the grand jury subpoena process would certainly be
an available mechanism for that investigation.
Mr. Norman. Thank you so much.
Chairwoman Maloney. The gentleman's time has expired.
The gentlewoman from Missouri, Ms. Bush, is recognized for
five minutes.
Ms. Bush. Thank you. Thank you, and good morning. St. Louis
and I thank you, Madam Chair, for convening this important
hearing today.
In my community in Missouri's First District, we face
horrifying radioactive pollution, racist gun violence, and a
dangerous shortage of affordable housing, all of which are made
worse when our government too often fails to conduct adequate
oversight. With this in mind, we are eager to do that work
today and make clear the urgent need for accountability and
transparency, especially in the aftermath of the Trump
administration, who eroded the integrity and trust in our
government.
Ms. Hempowicz, you testified at a subcommittee hearing on
Government Operations last month. During that hearing, the
chair of the Council of Inspectors General on Integrity and
Efficiency, Allison Lerner, testified, quote: Currently, the
government employees can avoid speaking with OIG auditors,
inspectors, or investigators by quitting or retiring prior to
being interviewed.
Ms. Hempowicz, how big of a thing is this? Like, how often
are retirement or resignation used to avoid questioning?
Ms. Hempowicz. Yes, ma'am. Thank you so much for the
question. It is much more common than you would think. You
know, I encourage members of this committee to just page
through inspectors general reports. One, they're fascinating
but, two, you'll often see, you know, we couldn't complete this
investigation because the person left government and wouldn't
answer our questions. It's an illogical limit to these
inspectors general for the ability to do their jobs.
And I will just highlight, because Mr. Smith has raised
that he has concerns about how they would exercise the subpoena
authority. I want to just highlight that the Department of
Defense Inspector General has testimonial subpoena authority.
So, does the Pandemic Response Accountability Committee. So,
does the Special Inspector General for Pandemic Recovery. And
we have not seen those inspectors general abusing this
authority.
I would also highlight that under the provision--under the
provisions of the law in front of Congress right now that would
institute for-cause removal protections for inspectors general,
abusing subpoena authority would absolutely fit under the abuse
of authority provision there, allowing the President to remove
an inspector general.
Ms. Bush. Thank you. Thank you.
So, Vice Chair Gomez introduced legislation, which is also
included in Chairwoman Maloney's IG Independence and
Empowerment Act, to grant this authority, the testimony of
subpoena authority, of course, to the inspectors general. So,
Ms. Hempowicz, how does the inability to compel testimony from
former government employees hinder the work of the inspectors
general and their ability to fully investigate matters?
Ms. Hempowicz. It completely undermines their ability to
conduct fulsome investigations. And it's not just former
government employees who have left service that are left out of
inspectors general, their jurisdiction, because of the lack of
this testimonial subpoena authority. They're also limited when
they're reaching out to ask--when they're asking questions of
government contractors and subcontractors. And we've seen just
how exponential the potential for waste is, utilizing
government contractors and over utilizing government
contractors. And so, I think this limit to IG authority should
be concerning to members of both sides of the aisle.
Ms. Bush. I agree. OK. Do you have any concerns about--so,
first of all, let me just say thank you for--you did talk about
who does have the testimonial subpoena authority. But do you
have any concerns about retaliation against lower-level
employees if we were to expand this power?
Ms. Hempowicz. No. No, I don't think so. I mean, lower-
level employees are, you know, I guess, if they're in
government right now, they are under the IG's jurisdiction. But
I also think, you know, there's another proposal in front of
the committee--and I apologize, there's been so many bills, and
I can't keep track of the name--that would increase
transparency around how the Integrity Committee within CIGIE
investigates IGs for wrongdoing.
And so, I think if there were instances where we saw this
authority being abused, those changes to the Integrity
Committee process would help bring those to light. But I also
hope that by passing whistleblower protections and
strengthening those whistleblower protections, you would also
be hearing from whistleblowers who could more safely then raise
those concerns to Congress.
Ms. Bush. Thank you.
And, Allison Lerner, the chair of the Council of the
Inspector Generals on Integrity and Efficiency also told the
subcommittee last month, and I quote: Frequently having the
authority means that you don't have to use it. So, in
situations of voluntarily cooperation follows instead of the
need to compel cooperation.
So, Ms. Hempowicz, the Inspector General Access Act is
another proposed reform that would close the loophole. How
would the bipartisan Inspector General Access Act improve
investigations into misconduct by Federal attorneys?
Ms. Hempowicz. Thank you for that question. It would make
that oversight independent. Right now, oversight over
Department of Justice attorneys accused of misconduct is done
by an office called the Office of Professional Responsibility
within DOJ. That is not at all independent. So, it's within the
agency's chain of command.
Chairwoman Maloney. The gentlewoman's time has expired.
The gentlewoman from California, Ms. Porter, is recognized
for five minutes.
Ms. Porter. Mr. Mehrbani, the Federal Vacancies Reform Act
of 1988, or FVRA, authorizes the President to name an official
to serve in an acting capacity until a permanent appointee is
nominated or considered by the Senate. And this law, FVRA,
limits who can serve in these temporary roles, and the purpose
of those limits is to put guardrails in place, to prevent
officials without appropriate experience from being appointed.
Is that a basically correct, good description?
Mr. Mehrbani. Yes, that's a great description.
Ms. Porter. And having qualified individuals serving in
these roles helps guard against wasting taxpayer dollars by
inexperienced or unqualified leadership. Is that right?
Mr. Mehrbani. That's right. And it also ensures that
Congress has their constitutional say in who serves in these
important positions.
Ms. Porter. And FVRA, I said it was in 1988. It was first
signed into law and enacted during the Clinton Administration
with a Republican-controlled Congress. Can you briefly explain
what led that Republican-controlled Congress to pass the law,
the FVRA law?
Mr. Mehrbani. Thank you for this question. And it's an
excellent one because it gets to the point that the reforms to
the Vacancies Act have been bipartisan in the past. At the
time, there were perceived abuses by President Clinton in
installing acting officials against the will of the Senate in
seeming perpetuity, and so Congress, both Democrats and
Republicans, voted to implement this reform in 1998.
Ms. Porter. So, this problem isn't new, but it does seem to
have gotten worse again over the last four years. In fact, a
landmark study by Professor Anne Joseph O'Connell, one of the
leading scholars on vacancies, she found there was a
significant increase in acting officials and, in this case,
unqualified officials during the Trump administration.
I ask the chair for unanimous consent to enter Professor
O'Connell's summary of her study into the hearing record.
Chairwoman Maloney. Without objection.
Ms. Porter. Mr. Blockwood, I want to turn to you for a
minute. I understand the Partnership for Public Service has
tracked Federal vacancies for a long time. Is the partnership a
nonpartisan organization?
Mr. Blockwood. Yes, that's my simple answer to that
question.
Ms. Porter. Yes. Ms. Hempowicz, I appreciate that POGO,
Project on Government Oversight, has done extensive work on the
issue of vacancies as well. Is it fair to say that POGO has
raised concerns about vacancies and the use of acting officials
during the administrations of both parties?
Ms. Hempowicz. Yes, ma'am.
Ms. Porter. So, the Trump administration's actions revealed
ambiguity and loopholes with that Clinton-era bipartisan
vacancy law I mentioned, FVRA, and so this law needs updating.
It's been clear for a long time, and what's happened in the
last four years makes it very plain. My bill, the
Accountability for Acting Officials Act, would close many of
the loopholes in the current law.
We've talked about how this issue of making sure we have
qualified officials is a bipartisan one, both because it's
about making sure government is effective, guarding against
taxpayer dollars, protecting the constitutional say of
Congress. And yet--and it's always historically been
bipartisan. But as I prepare to introduce--reintroduce the
Accountability for Acting Officials Act tomorrow, I still have
yet to find a Republican to co-lead the bill. It's frustrating
and it's disappointing, and I invite any of the Republicans
participating in today's hearing to co-lead this bill with me.
There was bipartisan support for FVRA in 1998. There should be
bipartisan support for updating it now.
Professor O'Connell submitted written testimony in support
of this bill for today's hearing, and I ask unanimous consent
for that statement to be entered into the hearing record.
Chairwoman Maloney. Without objection.
Ms. Porter. I also ask unanimous consent, Madam Chairwoman,
to enter a letter signed by several good government groups in
support of this bill.
Chairwoman Maloney. Without objection.
Ms. Porter. Thank you so much, and I yield back.
Chairwoman Maloney. The gentlelady yields back.
The gentleman from Georgia, Mr. Johnson, is now recognized
for five minutes.
Mr. Johnson, and you've been here the whole hearing. So,
thank you.
Mr. Johnson. Thank you, Madam Chair, and thank you for
holding this very important hearing.
Last Congress in my role on the Judiciary Committee, I
spent a significant amount of time reviewing notes taken by
Donald Trump's associates, which detailed serious misconduct,
notes that reportedly infuriated Donald Trump to the point that
he allegedly confiscated them from his interpreter after a July
2017 meeting with President Putin in Germany, and later
instructed the interpreter not to discuss the meeting.
According to the report issued by Special Counsel Robert
Mueller, President Trump vocally took issue with the White
House counsel, Don McGahn, taking notes, and asked McGahn,
quote: What about these notes? Why do you take notes? Lawyers
don't take notes. I've never had a lawyer who took notes, end
quote.
Mr. Smith, in your opinion, is it ever appropriate for a
President to attempt to destroy records of meetings with
foreign leaders, particularly those with demonstrated records
as adversaries to the United States of America?
Mr. Smith. Well, I think in terms of the Presidential
Records Act, Congressman, the President does have certain
responsibilities to preserve records that are made----
Mr. Johnson. My question is, is it ever appropriate for the
President to destroy records of meetings with foreign leaders?
Mr. Smith. Well, again, Congressman, the President has
certain responsibility under the Presidential Records Act to
maintain certain records in the course of conducting the
business of the United States.
Mr. Johnson. Well, let me ask Mr. Brookwood (sic) the
question. Mr. Brookwood, is it appropriate for a President to
destroy records of meetings with foreign leaders?
Mr. Blockwood. I think the answer to this question is to
ensure transparency and accountability, we want to strive to
keep all records that will help the public know what's going
on, but at the same time, there are certain responsibilities
and powers that a President has to make sure that he can
conduct business accordingly.
Mr. Johnson. Well, what record--what reasons would a
sitting President have for destroying records of meetings with
foreign leaders?
Mr. Blockwood. I'm not suggesting or advocating that a
President should destroy any records. I'm saying that
transparency is important and that the American public, the
Congress, and others have a right to know what happens. I'm
also saying the President has a responsibility and certain
powers that would allow for some information not to be
disclosed. That could include national security information and
other things that could harm the U.S. or its ability to conduct
business.
Mr. Johnson. Well, do you believe that records in that area
would--should be destroyed?
Mr. Blockwood. I would not advocate for records to be
destroyed. I'm not familiar with the specifics of what those
notes entailed or how they were used or if they were destroyed.
Again, I would recommend that we look toward transparency and
accountability and keep all records and information, to the
extent that we can, that does not violate the President's
ability to conduct business or any other responsibilities.
Mr. Johnson. Ms. Hempowicz, this committee has a long
history of working to update and improve the President's--the
Presidential Records Act. For example, in 2014, a bill
sponsored by my friend and then ranking member, Elijah
Cummings, the President and the Federal Records Act amendments
was signed into law after passing both Houses of Congress with
bipartisan support. Do you believe it's time that Congress
consider additional changes to strengthen the Presidential
Records Act?
Ms. Hempowicz. Yes. Absolutely, Congressman. And I also
just want to highlight that requiring the President and the
executive to maintain those documents does not necessarily mean
maintain those documents for public release. And so, I think
it's also really important to highlight that the Presidential
Records Act does include provisions to make sure that sensitive
information that shouldn't be released to the public won't be.
Mr. Johnson. Thank you.
Chairwoman Maloney introduced the Presidential Records
Preservation Act, and this bill would update the law to require
the President, Vice President, and other senior White House
officials to, quote, make and preserve records, end quote, that
document the official activities of the President. It will also
require that electronic messages can be searched and retrieved.
Ms. Hempowicz, do you believe that these updates to the
Presidential Records Act are needed?
Ms. Hempowicz. Yes, absolutely.
Mr. Johnson. And would anything in the Presidential Records
Preservation Act prohibit a President from claiming executive
privilege?
Ms. Hempowicz. Not to my knowledge.
Mr. Johnson. This bill would improve transparency and
ensure the preservation of important Presidential records.
Would you agree, Mr. Blockwood?
Mr. Blockwood. Yes. I think there would be some increased
efforts to preserve information, particularly that of which is
based on data and online.
Mr. Johnson. And, Mr. Mehrbani, is that your opinion as
well?
Mr. Mehrbani. It is.
Mr. Johnson. OK. Well, with that, I think my questions have
been answered, and I will yield back.
Chairwoman Maloney. Thank you. The gentleman yields back.
And the gentleman from Illinois, Mr. Quigley, a new member
of the committee, is now recognized for five minutes. Thank
you.
Mr. Quigley. Thank you, Madam Chairwoman. A new member and
an old member. I started my first two terms on this committee,
and I know and respect its important work.
And I put in a shameless plug for the bipartisan
Transparency Caucus. And I know a lot of legislation that's
come through the committee began with the thought there in the
bipartisan efforts of that caucus. So, again, you ought to
consider joining, anyone who's watching this. And I think it's
also indicative that there are areas that we can work together.
Last month, I reintroduced the Access to congressionally
Mandated Reports Act, with the support of the ranking member,
Ranking Member Comer. This bill passed the House unanimously in
the last Congress, and I'm pleased again that it does have
bipartisan support. And I want to point out through questions a
couple points.
You know, if someone wanted to find out more about these
reports or just find congressionally mandated reports, this
would be a particularly difficult task. I guess I'll begin by
asking Ms. Hempowicz, your reaction, just how difficult is it
to get these reports at times or even to find them?
Ms. Hempowicz. Extremely difficult, Congressman. There's no
central repository to find them, so you have to know which
agency is issuing them, what is the timeline that they will be
issued on. And then you have to cross your fingers and hope
that the agency will meet that timeline and that the reports
will be public, which is often not the case.
Mr. Quigley. And, again, focusing on the point that this
putting them in a central location and rather than just each
agency, perhaps, posting them, why that's important as well.
Ms. Hempowicz. Well, I think in particular, for your
constituents who are probably not so steeped in kind of the
legislative text that created those reports and probably don't
understand the various programs and subagencies within
executive agencies, you know, I think a central repository
really is a tool for the people to bring these reports to those
people who are paying for those reports.
Mr. Quigley. And, again, this does sit on a non--a no-
charge basis. Do you agree that the service for this should be
free?
Ms. Hempowicz. Absolutely. Taxpayers are already paying for
those reports to be put together. They should not have to pay
to access them.
Mr. Quigley. Thank you.
Madam Chairwoman, unless any of the other members of the
panel wish to comment, I would yield back.
Chairwoman Maloney. The gentleman yields back.
And the gentlewoman from California has joined us, Ms.
Jackie Speier. She's now recognized for five minutes.
Ms. Speier. Thank you, Madam Chair. And thank you to our
witnesses. I am at a hearing on the House Armed Services
Committee at the same time, so forgive me for coming in late.
The U.S. Government is the biggest consumer in the world,
spending a record of $228 billion alone in Fiscal Year 2020.
And, supposedly, these taxpayer dollars are only awarded to
responsible contractors. But our contracting system is rife
with abuse. Larger contracts often enjoy an unfair advantage
over smaller ones, and many have mastered manipulation of
safety systems meant to prevent misconduct and abuse.
For example, the Pentagon recently awarded the Atlantic
Diving Supply a $33 billion 10-year contract through a program
meant for small businesses, despite the fact the CEO of ADS
personally agreeing to pay $20 million, as recently as 2019, to
settle civil charges that his company defrauded the very same
program by falsely claiming to be a small business.
The suspension and this debarment list is meant to prevent
bad actors from obtaining government contracts, yet savvy
individuals frequently are able to get around it. This was
awarded during the final days of the Trump administration, and
it smacks of abuse.
So, Ms. Hempowicz and Mr. Blockwood, how can we prevent
suspended and debarred contractors from getting around bans?
Ms. Hempowicz. Well, I think simply requiring additional,
more transparency there, but also requiring contracting
officers to cross reference with those lists to make sure
before they afford these contracts, but go a little bit deeper
than surface level.
You mentioned that the owner of ADS owned another company,
but if the company name appears on the Federal contractor
misconduct data base, it won't necessarily tell you that that
company is connected to ADS. So, I think additional information
there is also necessary.
Ms. Speier. So, let me ask you as a followup question. Is
there a requirement when they are contracting that they list
any former company that they've been associated with that's
done business with the Federal Government?
Ms. Hempowicz. Not to my knowledge, but I'm not a Federal
contracting expert in the same way that some of my colleagues
are.
Ms. Speier. All right. Thank you.
Maybe someone else can answer that question? Mr. Blockwood,
would you like to respond to the initial question?
Mr. Blockwood. Yes. You know, I think providing information
on who the contractors are, what work they'll be doing, and
making that readily accessible to the public can help build
transparency and build trust, and can help the overall issue
that you brought about in your original question.
Ms. Speier. All right. Let me ask Ms. Hempowicz. The
exemption that allows for FOIA requests to be ignored, I guess
it's exemption No. 5, can you give us any advice as to how we
should tighten that so it's not abused as an exemption?
Ms. Hempowicz. Yes. You know, so the exemption 5, I think
for the most part, is when we're talking about predecisional
information. I think that's one place where we've seen the
executive abuse it, where they say legally binding opinions by
the Office of Legal Counsel, despite being legally binding on
executive branch attorneys--or sorry, executive branch
employees, are not final determinations of law. There, you
know, we've seen the executive kind of build a loophole for
itself there where they get to have it both ways, where these
opinions are binding on the executive branch but not so binding
that they are final and require publication under FOIA.
And so, I think exemption 5 is certainly one of the
exemptions that needs to be tightened up so that it's clear
what is predecisional and what isn't and what should be
withheld from release. But I think there are also other FOIA
exemptions that deserve attention, and I would highly recommend
Congress to be doing--to update the law in a more fulsome way.
Ms. Speier. All right. I think my time has almost expired,
so I will yield back.
Chairwoman Maloney. The gentlelady yields back, and I now
recognize myself.
I want to thank Ms. Hempowicz, Mr. Blockwood, Mr. Mehrbani,
and Mr. Smith for their testimony. I look forward to continuing
to work together to enact these commonsense bipartisan reforms.
Enhancing the independence of inspectors general and
providing these important watchdogs with the authorities they
need would make government more accountable. Strengthening the
whistleblower protections for Federal employees would also
improve the accountability of government by ensuring that
employees with evidence of wrongdoing are protected when they
speak up. Ensuring that the public knows who is serving in
senior positions in government and who is advising the
government would enhance transparency.
Many of these reforms today are bipartisan. I encourage
every member of the committee to engage in these issues in a
thoughtful and constructive manner so that we can move them
quickly toward enactment.
With that, I ask unanimous consent to enter into the record
the following documents: March 16, 2021, letter signed by more
than two dozen outside groups and experts in support of the
PLUM Act. March 18, 2021, a letter from Partnership for Public
Service in support of the PLUM Act. GAO report from March 14
recommending that Congress consider legislation to require
publishing information on political appointees. May 3, 2021,
letter from organizations in the Make It Safe Coalition
Steering Committee in support of the Whistleblower Protection
Improvement Act. Written testimony of Thomas Devine, legal
director, Government Accountability Project. April 1, 2021,
letter to President Biden on whistleblower protections signed
by over 260 organizations. March 26, 2021, letter signed by 17
organizations in support of the Inspector General Access Act.
January 28, 2021, letter from the Council of Inspectors General
on Integrity and Efficiency on their legislative priorities for
the 117th Congress. November 23, 2020, letter from then GSA
Administrator Emily Murphy to then President-elect Joe Biden.
March 16, 2021, letter signed by 15 organizations in support of
reforms to the Federal Advisory Committee Amendments Act.
September 10, 2020, GAO report that identified weaknesses in
agency implementation of FATCA. And April 13 letter from 29
organizations in support of the access to congressionally
Mandated Reports Act.
Without objection, so ordered.
Chairwoman Maloney. In closing, I want to again thank our
panelists for their remarks, and I want to commend my
colleagues for participating in this important conversation.
With that, without objection, all members will have five
legislative days within which to submit additional written
questions for the witnesses to the chair which will be
forwarded to the witnesses for their response. I ask our
witnesses to please respond as promptly as you are able.
This hearing is adjourned.
[Whereupon, at 1:20 p.m., the committee was adjourned.]
[all]