[Congressional Record Volume 140, Number 144 (Thursday, October 6, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 6, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
             OFFICE OF GOVERNMENT ETHICS AUTHORIZATION ACT

  Mr. FORD. Mr. President, I ask unanimous consent the Senate proceed 
to the immediate consideration of Calendar 523, S. 1413, the Office of 
Government Ethics Authorization Act of 1994.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A bill (S. 1413) to amend the Ethics in Government Act of 
     1978, as amended, and so forth, and for other purposes.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill.
  There being no objection, the Senate proceeded to consider the bill.


                           Amendment no. 2631

              (Purpose: To propose a manager's substitute)

  Mr. FORD. Mr. President, on behalf of Senators Levin and Cohen, I 
send a substitute amendment to the desk. I ask for its immediate 
consideration; that the amendment be agreed to and the motion to 
reconsider be laid upon the table; that the bill as thus amended be 
read three times, passed, and the motion to reconsider be laid upon the 
table; further, that any statements relating to this item be printed in 
the Record at the appropriate place as if read.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the amendment (No. 2631) was agreed to, as follows:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Office of Government Ethics 
     Authorization Act of 1994''.

     SEC. 2. GIFT ACCEPTANCE AUTHORITY.

       Section 403 of the Ethics in Government Act of 1978 (5 
     U.S.C. App. 5) is amended by--
       (1) inserting ``(a)'' before ``Upon the request''; and
       (2) adding at the end thereof the following:
       ``(b)(1) The Director is authorized to accept and utilize 
     on behalf of the United States, any gift, donation, bequest, 
     or devise of money, use of facilities, personal property, or 
     services for the purpose of aiding or facilitating the work 
     of the Office of Government Ethics.
       ``(2) No gift may be accepted--
       ``(A) that attaches conditions inconsistent with applicable 
     laws or regulations; or
       ``(B) that is conditioned upon or will require the 
     expenditure of appropriated funds that are not available to 
     the Office of Government Ethics.
       ``(3) The Director shall establish written rules setting 
     forth the criteria to be used in determining whether the 
     acceptance of contributions of money, services, use of 
     facilities, or personal property under this subsection would 
     reflect unfavorably upon the ability of the Office of 
     Government Ethics or any employee to carry out its 
     responsibilities or official duties in a fair and objective 
     manner, or would compromise the integrity or the appearance 
     of the integrity of its programs or any official involved in 
     those programs.''.

     SEC. 3. EXTENSION OF AUTHORIZATION OF APPROPRIATIONS.

       The text of section 405 of the Ethics in Government Act of 
     1978 (5 U.S.C. App. 5) is amended to read as follows: ``There 
     are authorized to be appropriated to carry out the provisions 
     of this title and for no other purposes not to exceed 
     $14,000,000 for fiscal year 1995 and for each of the next 7 
     fiscal years thereafter.

     SEC. 4. ASSISTANCE FROM OTHER AGENCIES.

       Section 403(a) of the Ethics in Government Act of 1978 (5 
     U.S.C. App. 5), as designated by section 2, is amended--
       (1) in paragraph (1) by striking ``under this Act; and'' 
     and inserting ``of the Office of Government Ethics; and''; 
     and
       (2) in paragraph (2) by striking ``duties.'' and inserting 
     ``duties under this Act or any other Act.''.

     SEC. 5. LIMITATION ON POSTEMPLOYMENT RESTRICTIONS.

       Section 207(j) of title 18, United States Code, is amended 
     by adding at the end the following new paragraph:
       ``(7) Political parties and campaign committees.--(A) 
     Except as provided in subparagraph (B), the restrictions 
     contained in subsections (c), (d), and (e) shall not apply to 
     a communication or appearance made solely on behalf of a 
     candidate in his or her capacity as a candidate, an 
     authorized committee, a national committee, a national 
     Federal campaign committee, a State committee, or a political 
     party.
       ``(B) Subparagraph (A) shall not apply to--
       ``(i) any communication to, or appearance before, the 
     Federal Election Commission by a former officer or employee 
     of the Federal Election Commission; or
       ``(ii) a communication or appearance made by a person who 
     is subject to the restrictions contained in subsections (c), 
     (d), or (e) if, at the time of the communication or 
     appearance, the person is employed by a person or entity 
     other than--
       ``(I) a candidate, an authorized committee, a national 
     committee, a national Federal campaign committee, a State 
     committee, or a political party; or
       ``(II) a person or entity who represents, aids, or advises 
     only persons or entities described in subclause (I).
       ``(C) For purposes of this paragraph--
       ``(i) the term `candidate' means any person who seeks 
     nomination for election, or election, to Federal or State 
     office or who has authorized others to explore on his or her 
     behalf the possibility of seeking nomination for election, or 
     election, to Federal or State office;
       ``(ii) the term `authorized committee' means any political 
     committee designated in writing by a candidate as authorized 
     to receive contributions or make expenditures to promote the 
     nomination for election, or the election, of such candidate, 
     or to explore the possibility of seeking nomination for 
     election, or the election, of such candidate, except that a 
     political committee that receives contributions or makes 
     expenditures to promote more than 1 candidate may not be 
     designated as an authorized committee for purposes of 
     subparagraph (A);
       ``(iii) the term `national committee' means the 
     organization which, by virtue of the bylaws of a political 
     party, is responsible for the day-to-day operation of such 
     political party at the national level;
       ``(iv) the term `national Federal campaign committee' means 
     an organization that, by virtue of the bylaws of a political 
     party, is established primarily for the purpose of providing 
     assistance, at the national level, to candidates nominated by 
     that party for election to the office of Senator or 
     Representative in, or Delegate or Resident Commissioner to, 
     the Congress;
       ``(v) the term `State committee' means the organization 
     which, by virtue of the bylaws of a political party, is 
     responsible for the day-to-day operation of such political 
     party at the State level;
       ``(vi) the term `political party' means an association, 
     committee, or organization that nominates a candidate for 
     election to any Federal or State elected office whose name 
     appears on the election ballot as the candidate of such 
     association, committee, or organization; and
       ``(vii) the term `State' means a State of the United 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, and any territory or possession of the United 
     States.''.

     SEC. 6. REPEAL AND CONFORMING AMENDMENTS.

       (a) Repeal of Display Requirement.--The Act entitled ``An 
     Act to provide for the display of the Code of Ethics for 
     Government Service'', approved July 3, 1980 (Public Law 96-
     303; 5 U.S.C. 7301 note) is repealed.
       (b) Conforming Amendments.--
       (1) FDIA.--Section 12(f)(3) of the Federal Deposit 
     Insurance Act (12 U.S.C. 1822 (f)(3)) is amended by striking 
     ``, with the concurrence of the Office of Government 
     Ethics,''.
       (2) Ethics in government act of 1978.--(A) The heading for 
     section 401 of the Ethics in Government Act of 1978 is 
     amended to read as follows:


              ``ESTABLISHMENT; APPOINTMENT OF DIRECTOR''.

       (B) Section 408 is amended by striking ``March 31'' and 
     inserting ``April 30''.

     SEC. 7. EFFECTIVE DATE.

       This Act shall take effect on October 1, 1994, except 
     section 5 shall take effect and apply to communications or 
     appearances made on and after the date of enactment of this 
     Act.
  Mr. LEVIN. Mr. President, Senator Cohen and I, in our capacities as 
ranking minority member and chairman of the Subcommittee on Oversight 
of Government Management, which has jurisdiction over ethics matters in 
the executive branch, introduced S. 1413, a bill to reauthorize the 
Office of Government Ethics, back in August 1993. OGE's current 
authorization expires on September 30th of this year, so this bill is 
necessary to ensure that the agency can continue to perform its 
mission. We do that by reauthorizing OGE for 8 years, 2 years longer 
than its last reauthorization in 1988.
  The Oversight Subcommittee held a hearing on S. 1413 in April 1994, 
with Stephen Potts, the Director of OGE, as the witness. The bill was 
then reported out by the Oversight Subcommittee and the full 
Governmental Affairs Committee with strong bipartisan support. Before 
describing the provisions of the bill in detail, let me first put this 
legislation in perspective.
  OGE was created in 1978 as part of the Office of Personnel 
Management. Over the years, Congress has given OGE more authority and 
autonomy, making it a separate agency as of October 1, 1989. That's 
probably the biggest change since the last reauthorization. In 
addition, through Executive Order, President Bush and President Clinton 
have given OGE new responsibilities for guiding and implementing an 
effective ethics program throughout the executive branch.
  In the process of developing this bill, the Oversight Subcommittee 
scrutinized OGE's budget, its personnel, and its accomplishments. Based 
on that effort, we are satisfied that OGE has improved in areas where 
weaknesses have been identified in the past and that it is on track in 
performing its duties in an effective, professional manner.
  Let me discuss the specifics of S. 1413. The first issue presented is 
the appropriate time period for reauthorization. The bill calls for 8 
years, which is what OGE itself proposed. The problem with 
reauthorizing for 6 years, like last time, is that it would place 
reauthorization in a presidential election year, and we wanted to avoid 
that as well as the year after, given the large number of nominations 
coming through the system at such times and OGE's job in helping to 
review them. Based on OGE's 15-year history, we are confident that this 
longer period of time is appropriate, since the bugs have been worked 
out in terms of the agency's structure and operations.
  Another issue we address in the bill is whether there ought to be a 
cap on the authorization of appropriations for OGE. There used to be a 
cap on OGE's appropriations, but it was problem because the money 
wasn't sufficient to keep up with OGE's expanding responsibilities 
under the Ethics Reform Act and other legislation and Executive Orders. 
So, we raised the cap in 1990 and then removed it in 1992. In the 
course of developing this reauthorization bill, however, the committees 
of jurisdiction in the House--the Judiciary Committee and the Post 
Office and Civil Service Committee--both included caps in their bills. 
In deference to the House's position, we are now incorporating an 
annual cap of $14 million in S. 1413. We believe, after consulting with 
OGE, that this will be enough to allow the agency to perform its duties 
over the next 8 years.

  S. 1413 also gives OGE gift acceptance authority for the first time. 
Under federal law, an agency can't accept gifts from non-federal 
sources without specific statutory authority. Many agencies have this 
authority, but up to now, OGE hasn't been one of them. OGE has asked 
for gift acceptance authority to assist it in its training mission. OGE 
regularly conducts multi-agency training sessions for federal employees 
around the country, and sometimes there is no federal facility nearby 
that is appropriate in terms of size and services. The gift acceptance 
authority in S. 1413 would allow OGE to accept donated non-federal 
facilities--such as an auditorium and related services such as 
projectionists and custodians--which might be offered by a state or 
local government or a university. Proper safeguards would protect 
against potential conflicts in the exercise of this authority.
  The bill also includes several provisions that are essentially 
technical. It corrects a misleading heading in OGE's enabling statute 
which was not conformed when OGE was made an independent agency in 
1989; moves the date of OGE's biennial report from the end of March to 
the end of April to give OGE more time to incorporate year-end 
statistics; strikes a 1980 requirement for the display of out-dated 
ethics posters in all federal buildings with 20 or more employees; and 
strikes out a reference to OGE in the Resolution Trust Completion Act 
that calls for OGE to consult on ethics standards for non-government 
employees who have contractual relationships with the government.
  On this last point, let me explain that OGE's mission and expertise 
is the conduct of government employees, not private persons who may do 
business with the government. Under this bill, OGE will continue to 
consult with the FDIC on the ethics rules applicable to its employees.
  Finally, the bill includes a provision to correct an unintended 
effect of the 1989 Ethics Reform Act with respect to the post-
employment rules applicable to executive and legislative branch 
employees. Under current law, senior executive and legislative branch 
employees (paid $108,000 or $102,000, respectively) are subject to 1-
year cooling-off periods during which they cannot contact their former 
offices on behalf of another party. There are some enumerated 
exceptions to the current ban--for example, if a federal employee 
leaves to work for a state or local government or for an international 
organization like the United Nations, it is permissible for the 
employee to contact his or her former employer on behalf of the new 
boss. However, there is no exception for employees who leave to go work 
for a political campaign. So, if an administrative assistant or 
legislative director takes a leave of absence from a Senator's staff to 
work on the Senator's reelection campaign, the former staffer is 
prohibited from contacting the Senator or his or her staffers to 
discuss positions on particular issues on behalf of the campaign.

  There is a broad bipartisan consensus that the current situation 
doesn't make sense and that including people who go to work on 
campaigns in the revolving-door rules was a mistake. In drafting the 
post-employment rules, no one had the campaign example in mind, and no 
one intended to prohibit campaign personnel from contacting their 
former offices. It does not implicate the kind of abuse we are worried 
about with respect to the revolving-door--that is, trading on 
Government information and access for private gain. Moreover, this law 
carries criminal sanctions, and while no one has been prosecuted so 
far, we need to correct the law to avoid any future prosecutions.
  In 1991, there was a major effort to fix this problem by adding a new 
exception to the post-employment law for staff who leave government to 
work for campaigns. The Bush administration supported this legislation, 
and it passed the House as part of the honoraria reform bill. A 
companion amendment was circulated in the Senate, but the provision 
never became law because honoraria reform at that time got stalled.
  This bill revives the effort to correct this problem, and it is 
closely based on the 1991 House version. It provides that executive and 
legislative branch employees who would otherwise be subject to the 1-
year cooling-off period are not barred from communicating with their 
former offices on behalf of a candidate, political committee, or 
political party. It also includes a few qualifications to this 
exemption. First, it doesn't apply to FEC employees because their 
duties in overseeing the campaign process make such an exception for 
them inappropriate. Second, to guard against potential abuse of the 
exception or the appearance of impropriety when former employees 
represent multiple clients (e.g., when someone works for a consulting 
firm rather than directly for a campaign), the exception would apply 
only to individuals who work (i) solely for candidates, campaigns, or 
political parties, or (ii) the entities whose only clients are 
candidates, campaigns, or political parties.
  This correction to the revolving-door rules applies to any 
communication or appearance that takes place on or after the date of 
enactment. So, an employee who left a government job within the last 
year--and who is still subject to the 1-year cooling-off period--can 
take advantage of this amendment with respect to future activities. Of 
course, the new rule also applies to anyone who leaves government after 
the date of enactment. Since we think the lack of an exception was a 
mistake from the start, we actually contemplated making it retroactive 
to January 1, 1991--when the Ethics Reform Act became effective--but 
the Justice Department generally opposes the retroactive repeal of 
criminal statutes. In deference to their wishes, we agreed to limit the 
retroactive effect of the provision, but that should not be interpreted 
to suggest we think past contacts on behalf of candidates or campaigns 
warrant criminal prosecution.
  I hope the House will act quickly to reauthorize OGE and include the 
other important provisions contained in S. 1413.
  So the bill (S. 1413), as amended, was passed.
  (The text of the bill will be printed in a future edition of the 
Record.)

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