[Congressional Record Volume 142, Number 102 (Thursday, July 11, 1996)]
[Senate]
[Page S7787]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FILEGATE WAS BAD ENOUGH--NOW THIS?

 Mr. SIMON. Mr. President, the FBI and the Office of Personnel 
Management are making a terrible move that is not in the national 
interest, that may save a few dollars temporarily, but will cost us in 
the long run. They are privatizing many of our background checks.
  Not only is this questionable from a security point of view, it will 
result in a massive invasion of privacy.
  Those of us in public life are on a big ``privatizing'' kick. The 
reason is rarely to save money. The main reason is so that people who 
are in executive positions can go out and say ``When I took office, 
there were so many Federal employees or State employees or city 
employees, but now there are fewer.'' The decrease makes it appear that 
a great job is being done.
  The reality is while that kind of talk goes on, the budgets tend to 
go up.
  Frequently, those who are adversely affected by privatization are 
people at the very bottom of the economic ladder.
  For example, we have privatized custodial services at some of the 
Federal buildings in Chicago. The already low wages for these people 
are being depressed more, and they lose the benefits of retirement pay 
and other things.
  Privatizing background checks for those who either are coming into 
government or who may be given greater responsibilities is simply 
foolish.
  Prof. Stephen Gillers of the New York University School of Law had an 
op-ed piece in the New York Times about this that should be creating 
some concerns among Federal officials, as well as people at the State 
and local level.
  I ask that the New York Times op-ed be printed in the Record.
  The op-ed follows:

                   Filegate Was Bad Enough. Now This?

                          (By Stephen Gillers)

       The F.B.I. called again last month. It phones several times 
     a year to ask me about former students who are seeking 
     sensitive Government jobs. I could verify that indeed it was 
     the Federal Bureau of Investigation calling. The voice-mail 
     message had the bureau's telephone exchange, and the agent 
     talked the way agents do, unfailingly polite and right to the 
     point.
       I answered all his questions. I trusted the confidentiality 
     of my answers, even though Louis J. Freeh, the F.B.I. 
     director, had recently acknowledged that the White House had 
     managed to ``victimize'' the bureau by getting its secret 
     files on prominent Republicans and others. I figure that two 
     ``Filegates'' in a generation is not something the bureau 
     will permit.
       It seems that my next call may come not from the F.B.I., or 
     from the Office of Federal Investigations, which also checks 
     out Government personnel. It may instead come from a private 
     company, which under a Clinton Administration plan will 
     conduct 40 percent of Government security clearances. And I 
     may be questioned not by a G-Person (formerly G-Man), but by 
     a private investigator whose employer submitted a winning 
     bid. The decision to privatize this work, rash in the best of 
     times, needs a close second look after Filegate.
       Take quality. Privatizing will dilute it. The company will 
     be free to accept other customers, including private ones. 
     Can I be confident that what I say will not be shared with 
     those customers? I'm not going to be as candid if my answers 
     can find their way into private files.
       What about subpoenas? I doubt the courts will protect 
     private records as jealously as they do F.B.I. files. And 
     whom will I be talking to? I have a pretty good idea of 
     what's required to become a Government investigator, the 
     quality of supervision, and the length of time people hold 
     that job. But who will the private investigators be, who will 
     check their work, and where will they be working tomorrow?
       The need to earn a profit will also compromise quality. 
     Under the plan, a private company owned by former Government 
     employees will have an exclusive contract for three years. 
     Then the work will be put up for bid. Whether payment is a 
     fixed sum for all investigations, or like piecework, a flat 
     fee per investigation, profitability will encourage companies 
     to do the minimum and not pursue the last elusive detail.
       Abuse will also be easier. The F.B.I. has many ways to 
     protect itself. Its director cannot easily be fired, it 
     enjoys broad public support, and it has excellent media 
     contacts. Yet it did not stand up to a White House that, by 
     accident or design, easily obtained files for no lawful 
     reason. Will a private company, dependent on Government 
     officials for renewal of a lucrative contract, be able to 
     challenge an improper request? Don't count on it.
       The only defense offered for this misguided plan is that it 
     may save $25 million yearly. But even that is unsure. While 
     the General Accounting Office cautiously concluded that 
     ``privatization would be likely to produce a net savings to 
     the Government in the long term,'' it added that ``any new 
     business faces many uncertainties that affect 
     profitability.''
       One hidden cost will be duplication of work. Certain law-
     enforcement records will be unavailable to private 
     investigators. So Government personnel will have to complete 
     the assignments, inevitably requiring them to retrace some 
     steps. This time must be added in figuring the true cost.
       In any event, the savings are not worth it. As one Federal 
     investigator put it, this work is ``inherently 
     governmental.'' Some tasks should not be privatized because 
     the value of having the Government do them is priceless. 
     Enforcing the law and approving new drugs are two examples. 
     Security investigations for public jobs are a third. No 
     business, especially one with other customers, should be 
     authorized to routinely collect sensitive information on 
     American citizens in the name of the United States.

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