[Congressional Record Volume 149, Number 26 (Wednesday, February 12, 2003)]
[House]
[Pages H432-H434]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE BUSH RECESSION AND ITS IMPACT ON MINORITY WORKERS
The SPEAKER pro tempore. Under a previous order of the House, the
gentlewoman from California (Ms. Watson) is recognized for 5 minutes.
Ms. WATSON. Mr. Speaker, I yield to the gentleman from California
(Mr. Waxman).
Cheney Task Force Records and GAO Authority
Mr. WAXMAN. Mr. Speaker, I thank the gentlewoman for yielding,
because
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I want to make this point very clearly that now that the President is
Bush and the Vice President is Cheney, suddenly the priorities of the
Republicans have changed. Oversight is no longer of interest to them.
In fact, it is something to be avoided at all costs, including
sacrificing the independence of GAO. Even when GAO asked for the most
basic information, what private interest met with the White House task
force, the answer is that GAO is not entitled to ask these questions.
Consider this irony. In their eagerness to undermine the Clinton
White House, Republicans in Congress tried to tear down the Presidency.
Now, in their eagerness to protect the Bush White House, they are
willing to tear down Congress.
The implications of GAO's decision are enormous when they decided not
to appeal; and without a realistic threat of legal action, GAO loses
most of its leverage. This is a sea change in GAO's mission. It is no
longer fundamentally nonpartisan nor fundamentally independent.
Mr. Speaker, I include for the record three short documents into the
Record. They are an exchange of correspondence with the Comptroller
General on this issue and a fact sheet on the Walker versus Cheney case
that my staff has provided.
Congress of the United States, House of Representatives,
Committee on Government Reform,
Washington, DC, January 31, 2003.
Hon. David M. Walker,
Comptroller General, General Accounting Office, Washington,
DC.
Dear Dave: I am writing to follow up on our conversation
about the Walker versus Cheney litigation.
I have great admiration for the work you have done as
Comptroller General. You have reinvigorated the organization
and given it a new sense of purpose, accomplished important
restructuring, and addressed pressing human capital needs.
But now you face another--and in some ways even more
significant--challenge: how you respond to the district court
decision in Walker versus Cheney. This decision goes to the
very heart of GAO's independence.
As you have indicated to me (and your lawyers have
indicated to my staff), you will read the decision as
narrowly as possible if you decide not to appeal. The narrow
reading is that the case does not apply when you are acting
pursuant to a request from a committee. If you decide not to
appeal, you will take the position that GAO can still use the
courts to uphold its statutory rights to information when
supported by a committee of Congress.
While I understand the desire to minimize the impact of the
district court decision, allowing the decision to stand would
do irreparable damage to GAO's independence. As Comptroller
General, you have a 15-year tenure, so that you can exercise
independent judgment and conduct independent investigations.
You are not simply an agent of congressional committees: GAO
exists, to quote your mission statement, ``to ensure the
executive branch's accountability to the Congress under the
Constitution and the federal government's accountability to
the American people.''
If you do not appeal, you will in effect have sacrificed
the independent that is essential to your mission. At best,
you will be able to pursue effective investigations only when
your work is supported by the majority in Congress.
Investigations that are requested by the minority would
become second-class investigations because GAO would have no
ability to compel--or to threaten credibly to compel--the
production of information in the face of executive branch
recalcitrance.
Allowing the district court decision to stand would also do
permanent damage to the Comptroller General's statutory
authority to conduct self-initiated work. Under Walker versus
Cheney, this essential independence is crippled because you
would have no standing to assert your independent rights of
access to agency information.
Now is exactly the time when an independent GAO is most
important. When the White House is controlled by one party
and Congress by another party, the public can rely on
Congress to conduct oversight of the administration. But
when--as now--there is one-party control of both the White
House and Congress, congressional oversight will be minimal.
If GAO is not available to conduct independent oversight,
there simply won't be any.
The need for GAO independence is especially important given
the inclinations of the current Administration. This
Administration has taken a uniquely hostile approach to
oversight and public disclosure. The Administration regularly
ignores requests from members of Congress for information,
resists GAO efforts to obtain records, and has even issued a
directive curtailing public access to information under the
Freedom of Information Act. This penchant for secrecy makes
GAO's independence of paramount importance.
Given the current political alignment in Washington, it is
clear what the easy decision would be: don't appeal. But the
core values of GAO are ``accountability, integrity, and
reliability.'' I urge you to make your final decision on the
basis of these core principles.
Sincerely,
Henry A. Waxman,
Ranking Minority Member.
____
U.S. General Accounting Office,
Washington, DC, February 7, 2003.
Hon. Henry B. Waxman,
Ranking Minority Member, Committee on Government Reform,
House of Representatives.
Dear Mr. Waxman: Thank you for your letter dated January
31, 2003, regarding the district court decision in Walker v.
Cheney and your kind words on GAO's performance during my
tenure as Comptroller General of the United States (CG).
I am announcing my decision today and have attached a copy
of our press statement for your information (attachment).
This decision, like my initial decision to file suit last
February, was by no means an easy one to make because many
factors needed to be considered, including legal,
institutional and other issues. In addition, there were good
arguments to be made both for and against an appeal. Please
be assured that my decision was based on what, in my best
judgment, is in the best overall interests of the Congress,
the GAO, and the American public. I also feel comfortable
that it is fully consistent with GAO's core values of
``accountability, integrity, and reliability.''
As noted in the attached statement, we strongly disagree
with the district court decision. We do not, however, agree
with your characterization of the opinion. In addition, we do
not believe that the district court opinion will have a
significant adverse effect on our ability to serve the
Congress and the American people. Furthermore, with regard to
GAO's policy of not disenfranchising the minority, the
Court's decision did not address, and does not affect, our
engagement acceptance policy or the CG's authority to conduct
self-initiated work.
As you know, in enacting 31 U.S.C. Sec. 716, the Congress
gave GAO the independent right to sue to compel the
production of information irrespective of whether the request
is made by a committee, a member, or is self-initiated by the
CG. As the attachment notes, the district court's decision in
Walker v. Cheney does not set a binding precedent on GAO's
overall right to sue in the future. Importantly, it does not
affect GAO's statutory audit authority, access rights, or the
obligation of agencies to provide GAO information. As a
result, we remain willing and able, should the facts and
circumstances warrant, to file suit to press our access
rights in connection with a different matter in the future.
In addition, the court's decision does not affect GAO's
ability to issue demand letters and statutory reports to the
Congress in connection with an agency's refusal to disclose
information to which we are entitled. There are also
traditional remedies available to the Congress that can,
have, and, we trust, will continue to be employed to aid our
audit and access authority. However, as I noted when we met,
given the district court's decision, and other
considerations, as a matter of procedural prudence, I believe
it would be appropriate to have an affirmative statement of
support from at least one full committee with jurisdiction
over any records access matter prior to any future court
action by GAO. Furthermore, now that I have been in office
for over four years, I believe it is appropriate to work with
you and other Congressional leaders to review and update our
current Congressional protocols and address certain other
related matters.
We appreciate your past understanding and support and we
trust that we can count on that same understanding and
support in the future. I would be pleased to meet with you to
discuss my decision should you so desire. In addition, I look
forward to meeting with you soon to discuss our Congressional
protocols and related matters.
Sincerely yours,
David M. Walker,
Comptroller General of the United States.
Attachment.
Fact Sheet--Walker v. Cheney
In December 2002, federal district court Judge John Bates
issued a ruling in Walker verses Cheney that holds that GAO
lacks ``standing'' to enforce its statutory rights to
information. This ruling may do serious damage to GAO's
ability to serve Congress. The court's ruling is so sweeping
that the issue in the case is no longer about the actions of
the Cheney energy task force: it's about the role of GAO.
GAO's ability to assist Congress in overseeing the
executive branch is imperiled. Under the logic employed in
the court's ruling. GAO has no standing to compel the
executive branch to provide any documents or information.
Thus, federal agencies may use the decision to argue that GAO
cannot enforce its requests for information. In effect,
agencies are likely to take the position that they--not GAO--
can dictate what information is shared with GAO. According to
the Congressional Research Service, the decision ``could
greatly limit the ability of GAO to compel production of
information from the executive branch'' and ``the executive
branch could become significantly less responsive to future
GAO inquiries.''
Other core GAO powers are also in jeopardy. GAO has
statutory authority to demand important records from the
private sector, such as information from Medicare or
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Medicaid providers or from federal contractors. Using the
logic in the court's ruling, private companies being audited
by GAO may argue that GAO does not have standing to enforce
these rights.
Another important function of GAO is its role in preventing
improper ``impoundments'' by the executive branch. The
Impoundment Control Act sets forth the limited circumstances
under which the executive branch can defer expending
appropriated funds. To ensure compliance with these limits,
the law authorizes GAO to sue the executive branch if the law
is violated. This core GAO authority could also be challenged
by the executive branch under the court's ruling.
The court's decision even challenges Congress' ability to
sue the executive branch. The opinion says that ``no court
has ever ordered the Executive Branch to produce a document
to Congress or its agents'' and dismisses Department of
Justice opinions which conceded Congress' ability to sue to
enforce a subpoena. According to CRS, the decision ``casts
doubt on the ability of committees of the Senate and of the
House of Representatives to bring suit to enforce
subpoenas.'' If the decision is not reversed, CRS says that
it ``conceivably could be cited by the executive branch--or
even a private party--for the broad proposition that the
legislative branch does not have standing to enforce its
demands for information in the courts.''
No congressional remedy is available. In effect, the court
ruled that Congress violated Article III of the Constitution
when it authorized GAO to sue for access to information. This
is not an issue that Congress can rectify by enacting more
explicit legislation. If the opinion stands, a constitutional
amendment could be required to revive GAO's powers.
There is a significant likelihood that the district court's
decision will be overturned on appeal. The court's opinion is
not well reasoned or well supported:
1. The court failed to recognize that heads of executive
agencies routinely assert ``institutional'' injuries in
litigation. The court rejects the Comptroller General's
standing because the Comptroller General is asserting an
``institutional'' interest in obtaining information, not a
personal injury. But heads of agencies always assert
``institutional'' interests in litigation. If standing
required a ``personal'' stake in the litigation, the Attorney
General and heads of other executive agencies could not bring
legal action to assert federal rights. The court never
explains why GAO's institutional interests asserted by
agencies when they bring lawsuits to enforce their statutory
rights to information.
2. The court improperly dictates to Congress how it must
collect information needed for legislative purposes. The
court's decision relies heavily on the fact that Congress did
not vote to authorize the Walker v. Cheney litigation. The
court does not hold that such a vote would be sufficient to
gave GAO standing, but it does hold that GAO cannot have
standing without such a vote. This is an unprecedented
intrusion into the internal operations of the legislative
branch. Congress determined by statute that it was
appropriate to create GAO to assist members in collecting
information and conducting oversight, just as Congress has
created CBO to assist members on budget issues and CRS to
assist members with their research needs. Congress also
determined by statute that GAO should have the power to sue
agencies for information, if necessary. No provision of the
Constitution forbids Congress from creating congressional
agencies to assist members in carrying out their duties, and
no provision bars Congress from giving these agencies
authorities, such as the ability to sue to obtain
information, necessary to carry out their assigned duties.
There is no precedent for the district court to prohibit
Congress from doing so in this case.
3. The court ignored key precedents. The district court
completely ignore Bowsher versus Merck, 460 U.S. 824 (1983).
In this case, the Supreme Court upheld GAO's rights to obtain
certain records from a drug company, rejecting the company's
request for a declaratory judgment that GAO was not entitled
to the records. The district court's holding that enforcing
GAO's rights to information would violate the standing
requirements of Article III conflicts fundamentally with the
Supreme Court's decision to enforce these very rights in
Bowsher versus Merck. The district court also ignores United
States versus McDonnell Douglas Corp., 751 F.2d 220 (8th Cir,
1984), and United States versus Abbott Laboratories, 597 F.2d
672 (7th Cir. 1979), which upheld GAO's statutory right to
bring a lawsuit to compel a contractor to provide records.
4. Raines v. Byrd is distinguishable. The district court
relies on Raines versus Byrd, 521 U.S. 811 (1997), a case in
which several members sued to challenge the constitutionality
of the line-item veto. But there are three fundamental
differences between the Raines case and this one. First, GAO
is seeking access to information and not trying to prevent an
abstract, generalized harm like diminution of congressional
authority. The Supreme Court has held that the denial of
information is a concrete injury that conveys standing.
Second, the line-item veto at issue in the Raines case had
not yet been exercised. In essence, the congressional
plaintiffs were seeking an advance ruling that any exercise
of the authority would be unlawful. In this case, there is a
specific dispute over specific documents that is being
litigated. Third, the Raines decision placed some importance
on the fact that the members were not authorized to represent
Congress, and in fact both houses of Congress opposed their
lawsuit. Here, by contrast, Congress has specifically
delegated to GAO the power to sue.
As a practical matter, GAO may be bound by the ruling if it
does not appeal. Under GAO's statute, the D.C. district court
is the only court where GAO can litigate claims against
agencies for refusing to provide information, so this is not
a situation in which GAO can gain a strategic advantage by
looking for another venue to litigate the issues in question.
If the decision is not appealed and GAO files another access
suit in the future, the district court judge might rule that
the issue of GAO's standing has been decided and cannot be
re-litigated. Even if the judge allows the question of
standing to be re-argued, the judge is likely to follow the
precedent set by Judge Bates's ruling, and any appellate
court would question why GAO did not appeal the initial
ruling. If no appeal is taken, GAO could be permanently bound
by the decision.
An appeal leaves open other grounds for decision. The
government offered many arguments in the litigation,
including statutory claims such as the one that GAO's
authority to obtain ``agency'' records does not extend to the
Office of the Vice President. These other issues go the
merits of the dispute about GAO's right to the energy task
force records. A decision on these other grounds, even if
adverse to GAO, would not have the profound impact on the
operations of GAO that the district court's ruling
potentially has.
Ms. WATSON. Mr. Speaker, the American economy has been mired in
recession since March of 2001. This past December saw the unemployment
rate rise to 6 percent, meaning that one in every 17 American workers
was out of work.
One of the most troubling aspects of this rescission is the amount of
time that workers have been idle. During the Clinton economic expansion
of the 1990s, America dramatically reduced long-term unemployment,
those workers who had been out of work 27 weeks or more. From February
of 1993 until February of 2001, roughly the amount of time Bill Clinton
was in office, long-term unemployment fell by two-thirds. That is 1.2
million long-term unemployed Americans who went back to work.
But in less than 2 years of this administration, there is a recession
and the administration has managed to completely erase those gains. By
this past December, the administration's economic mismanagement has
managed to push long-term unemployment back up to where it was when his
father was in office.
I remember feeling a certain amount of deja vu after having another
President Bush in office. But I do not think that many people realized
that this administration would mismanage the economy so badly that we
would return to economic stagnation reminiscent of the early 1990s.
But these broader economic statistics only tell half the story.
During the Clinton expansion of the 1990s, minority communities made
enormous strides in breaking out of poverty, as more African Americans,
Asian Americans, and Latinos found good jobs in the prosperous economy.
Since the beginning of this recession, however, these numbers have
turned around sharply. More than one in 10 African American workers are
now out of a job. American workers of minority heritage have
historically worked at the edges of the economy. Because of the jobs
they possess, too many of these workers are forced to bear the full
brunt of swings in the labor market.
We need to get America back to work. We have to help this President
realize that his fiscal and economic policies have not helped America
out of the recession, and it is possible that it has been prolonged.
The budget that this President has submitted to Congress is a
sweetheart deal for the President's wealthiest supporters. Meanwhile,
budgets at all levels of government, Federal, State and local, are
swimming in red ink. The President's budget, in effect, hides a $1
trillion tax increase. His budget borrows against the future, leaving
us with a $1 trillion bill that Americans will have to pay over the
next decade in higher taxes, higher interest rates, and lower growth.
We will only get out of this recession when average Americans get
money back into their pockets. I urge the President to rethink his
failed economic policies and get America back to work.
____________________