[Congressional Record Volume 146, Number 101 (Tuesday, September 5, 2000)]
[Senate]
[Pages S7993-S7995]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                  THE PROJECT ON GOVERNMENT OVERSIGHT

  Mr. BINGAMAN. Mr. President, on July 24, the chairman of the 
Committee on Energy and Natural Resources, brought before the Senate a 
report on payments made by the Project on Government Oversight, a 
public interest group commonly called ``POGO,'' to two federal 
employees. Unfortunately, the chairman referred to the report in his 
remarks as a ``committee report.'' It is not, and I think we need to 
set the record straight on that point.
  The rules of the Senate give the Committee on Energy and Natural 
Resources, like all our standing committees, broad authority to ``make 
investigations into any matter within its jurisdiction.'' But the power 
to make investigations rests with the Committee

[[Page S7994]]

as a whole. It is not vested in the chairman or any one Senator.
  In January, at the chairman's request, the Comptroller General 
detailed an employee of the General Accounting Office, Mr. Paul 
Thompson, to the committee to conduct a ``preliminary inquiry'' into 
the payments. In February, the chairman informed the committee that the 
inquiry was underway and that he would ``make recommendations'' to the 
committee ``as soon as we have something tangible.''
  The chairman has leapt from ``preliminary inquiry'' to a final report 
without any intervening action or consideration by the committee. The 
committee never authorized Mr. Thompson's investigation and it never 
approved his report. I first learned about it after the chairman posted 
it on the Internet.
  Nor was the report written or approved by the General Accounting 
Office. Although Mr. Thompson is a GAO employee, he was detailed to the 
committee. So far as I can tell, no one at the General Accounting 
Office participated in the investigation or in writing the report. Mr. 
Thompson's activities were not subject to the professional standards of 
conduct that govern GAO investigations, and his report was not subject 
to review and approval by senior GAO officials.
  If the chairman had asked the committee to approve Mr. Thompson's 
report, I would have voted against it. If a majority of the committee 
had agreed to adopt the report as its own, I would have filed minority 
views. Since I was not given that opportunity, I will state my views 
for the Record.
  POGO's payments to Mr. Berman and Mr. Speir cannot be understood in 
isolation. They must be viewed in the larger context of the ongoing 
controversy over federal oil and gas royalties.
  Oil companies that produce oil on federal land are, by law, required 
to pay royalties to the Federal Government based on the value of the 
oil they produce from federal leases. Many of the major oil companies 
have been accused of undervaluing and, thus, underpaying the royalties 
they owe to the American people. The alleged underpayments total many 
hundreds of millions of dollars.
  A few years ago, POGO and various private individuals sued the oil 
companies under the False Claims Act. The False Claims Act allows a 
private citizen to sue anyone who has defrauded the Government. If 
successful, the person bringing the suit, known as a ``relator,'' is 
entitled to a share of the money recovered by the Government as a 
result of the suit.
  The essential facts surrounding the POGO payments are not in dispute. 
POGO asked Robert A. Berman, an employee at the Department of the 
Interior, and Robert A. Speir, an employee at the Department of Energy, 
to join its False Claims Act suit. Neither man agreed. POGO then 
offered to share any money it received from its suit with the two men 
and they agreed. In January 1998, they put their agreement in writing. 
In August 1998, Mobil Oil Corporation settled the claims against it by 
paying the Government and the relators a total of $45 million. In 
November 1998, POGO got about $1.2 million from the settlement and it 
paid Mr. Berman and Mr. Speir $383,600 apiece out of its share.
  The current dispute centers on why POGO made those payments. POGO 
characterized the payments as ``awards'' for the two men's ``decade-
long public-spirited work to expose and stop the oil companies' 
underpayment of royalties for the production of crude oil on federal 
and Indian lands.'' POGO's opponents believe POGO had sinister motives.
  Mr. Thompson's report attempts to substantiate the opponents' 
suspicions. I am troubled by Mr. Thompson's report for several reasons.
  First, I am troubled by the very nature of Mr. Thompson's report. In 
his letter of transmittal to Chairman Murkowski, Mr. Thompson makes 
very serious charges against POGO; its chairman, Mr. Banta; its 
executive director, Ms. Brian; and the two federal employees who 
received the payments, Mr. Berman and Mr. Speir. He accuses POGO of 
paying the two men ``to influence the Department [of the Interior] 
toward taking actions and adopting policies'' benefiting both POGO and 
the two employees. Without saying so directly, Mr. Thompson's report 
insinuates that POGO and the two employees may have broken federal 
criminal laws against bribery, the payment and acceptance of 
gratuities, and the payment and acceptance of private compensation for 
government service.

  Yet nowhere in his 42-page report does Mr. Thompson present the 
evidence necessary to back up his charges. In place of evidence, he 
offers only theories, speculation, suspicions, circular reasoning, and 
his personal conviction that all assertions of innocence from Ms. Brian 
and Messrs. Banta, Berman, and Speir are untrustworthy.
  Second, I am troubled by the report's lack of a coherent theory of 
the case. Mr. Thompson laboriously rebuts the explanations offered by 
POGO, but never meets his own burdens of production and persuasion.
  Part of his problem may stem from the fact that the chairman never 
defined the scope of the inquiry. Mr. Thompson states that the ``chief 
concern'' behind the inquiry was ``whether the payments represent an 
improper influence upon the Department of the Interior's development of 
its new oil royalty valuation policy,'' but his report focuses little 
attention on this issue.
  Whether the payments improperly influenced the Department of the 
Interior's oil valuation rule is, of course, a legitimate concern of 
the Committee on Energy and Natural Resources. In his transmittal 
letter, Mr. Thompson concludes that the rule ``may have been improperly 
influenced by'' the payments. Yet his own report fails to support that 
conclusion. The report states that the two men's involvement in the 
rulemaking ``terminated'' around December 1996, before the Department 
of the Interior published its proposed rule in January 1997. After Mr. 
Berman and Mr. Speir stopped working on the rule, it was substantially 
revised over the course of 8 public comment periods, 20 public meetings 
and workshops, the review of thousands of pages of testimony, and close 
congressional oversight. Mr. Thompson's assertion that POGO's payments 
may have ``improperly influenced'' the final rule simply is not 
supported by the rulemaking record.
  The bulk of Mr. Thompson's report is devoted to his search for an 
improper motive for the payments. I do not believe that this is an 
appropriate use of the committee's investigative powers. The matter is 
now under investigation by the Inspector General of the Department of 
the Interior and the Public Integrity Section of the Department of 
Justice--as it should be. The appearance of impropriety created by the 
payments warrants investigation, but by the proper authorities. It is 
for the appropriate law enforcement agencies and, ultimately, the 
courts, not the Committee on Energy and Natural Resources, to decide if 
any laws were broken.
  This is particularly the case where, as here, the targets of the 
committee's investigation are not senior policy officials, but private 
citizens or low-ranking civil servants, and where, as here, the 
committee has shown a strong bias against the targets of its probe. The 
chairman of the Energy Subcommittee publicly declared the payments to 
be ``grossly unethical'' soon after they came to light in May 1999, and 
the chairman of the full committee publicly declared them to involve 
``apparent gross impropriety'' only a month after Mr. Thompson began 
his investigation.
  The Framers wisely kept law enforcement and judicial powers out of 
Congress's hands, because, as Alexander Hamilton said, ``of the natural 
propensity of [legislative] bodies to party divisions,'' and their fear 
that ``the pestilential breath of [party] faction may poison the 
fountains of justice.'' The strong political feelings recently 
displayed in the House Committee on Resources over this matter bear 
this out.
  Over two centuries ago, Benjamin Franklin observed that ``There is no 
kind of dishonesty into which otherwise good people more easily and 
frequently fall than that of defrauding the Government.'' All too 
often, otherwise good people are tempted to cheat their Government 
because they think they can get away with it. All too often, they do, 
because most fraud against the Government goes unreported. Most federal 
employees are reluctant to report fraud because they believe nothing

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will be done if they do report it, or because they are afraid of 
reprisal.
  For this reason, Congress amended the False Claims Act in 1986, in 
the words of the Judiciary Committee, ``to encourage any individual 
knowing of Government fraud to bring that information forward.'' The 
1986 amendments offer large rewards to whistleblowers who bring a 
successful false claims action and afford new protections against 
employer retaliation. While the amendments do not expressly authorize 
federal employees to file whistleblower suits, the courts have 
generally read the amended law to permit them to, since the courts 
recognize that federal employees are often in the best position to 
uncover and report government fraud.
  What happened here seems fairly clear. Two federal employees had 
information they believed showed that oil companies were defrauding the 
Government. They brought it forward to their agencies. They also, it 
seems likely, may have shared some of that information with POGO. They 
could have openly joined POGO's False Claims Act suit but, for whatever 
reason, they chose not to. They chose instead to become, in effect, 
silent partners in POGO's suit. POGO generously, if foolishly, shared 
its windfall with them.
  Probably all concerned would now agree that this arrangement was a 
serious mistake. POGO has handed its opponents a powerful weapon with 
which to wound its credibility and its effectiveness. It has not only 
brought down a world of trouble on itself, Mr. Berman, and Mr. Speir, 
but it has deflected attention away from the question of whether the 
oil companies defrauded the Government to the matter before us.
  At the very least, the payment of large sums of money by an outside 
source to a federal employee for work related activities creates an 
appearance of impropriety. If the appropriate authorities ultimately 
determine that the payments to Mr. Berman and Mr. Speir were 
not unlawful, then Congress may need to tighten the conflict of 
interest laws to more clearly bar federal employees from accepting such 
payments in the future, or to amend the False Claims Act to prevent 
federal employees from aiding or benefiting from False Claims Act 
suits. Crafting a legislative solution that would prevent a recurrence 
of this problem in the future would, in my view, be a more 
constructive--and far more appropriate--use of the Senate's time and 
energy than trying to build a case against POGO and Messrs. Berman and 
Speir.

  Any changes in the current laws should, however, be carefully drawn 
to avoid shutting off the legitimate flow of allegations and 
information about government fraud and corruption from federal 
employees to organizations like POGO. These organizations play a 
valuable role in exposing government fraud and corruption. They offer a 
safe harbor to federal employees who may be unable or unwilling to come 
forward publicly on their own. We may not always agree with the causes 
they espouse or the allegations they make, but we would make a terrible 
mistake if we were to choke off the flow of allegations and information 
to them or still their voice.
  They must, of course, operate within the law. Good intentions do not 
give them, or the people that come to them, free rein to violate 
federal conflict of interest laws, agency ethnic rules, or the 
protective orders of the courts. If anything like that happened in this 
case, then POGO and the two federal employees should be held 
accountable by the appropriate law enforcement officials and the 
courts. But, as the Supreme Court has admonished us in the past, 
Congress is not a law enforcement agency or a judicial tribunal, and we 
should not presume to be one in this case.
  The Committee on Energy and Natural Resources, like most of the 
Senate's standing committees, from time to time, has to conduct 
investigations into certain matters to do its job. The Energy Committee 
has, in recent years, conducted a number of sensitive investigations 
into serious allegations of wrongdoing leveled against senior 
Administration officials whose nominations were pending before the 
committee. Each of these investigations was handled very thoroughly and 
professionally on a bipartisan basis by the committee's own lawyers.
  Special, partisan investigations like Mr. Thompson's carry with them 
special problems. By focusing exclusively on proving the guilt of their 
chosen target, they tend to lose sight of the larger picture and their 
sense of proportion. Justice Robert Jackson warned us of this danger in 
the case of prosecutors who ``pick people'' they think they ``should 
get rather than cases that need to be prosecuted.''

       With the law books filled with a great assortment of 
     crimes, [Justice Jackson said,] a prosecutor stands a fair 
     chance of finding at least a technical violation of some act 
     on the part of almost anyone. In such a case, it is not a 
     question of discovering the commission of a crime and then 
     looking for the man who has committed it, it is a question of 
     picking a man and then searching the law books, or putting 
     investigators to work, to pin some offense on him. It is in 
     this realm--in which the prosecutor picks some person he 
     dislikes or desires to embarrass, or selects some group of 
     unpopular persons and then looks for an offense, that the 
     great danger of abuse of prosecuting power lies. It is here 
     that law enforcement becomes personal, and the real crime 
     becomes that of being unpopular with the predominant or 
     governing group, being attached to the wrong political views, 
     or being personally obnoxious to or in the way of the 
     prosecutor himself.

  Sadly, I fear that has happened in this case.

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