[Congressional Record Volume 155, Number 163 (Wednesday, November 4, 2009)]
[Senate]
[Pages S11103-S11105]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF TARA JEANNE O'TOOLE TO BE UNDER SECRETARY FOR SCIENCE AND 
                               TECHNOLOGY

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The legislative clerk read the nomination of Tara Jeanne O'Toole, of 
Maryland, to be Under Secretary for Science and Technology, Department 
of Homeland Security.
  Mr. McCAIN. Mr. President, I understand the Senate is proceeding to 
the consideration of the nomination of Dr. Tara O'Toole to serve as 
Under Secretary for the Science and Technology Directorate at the 
Department of Homeland Security. This nomination has not been available 
for consideration until now because I was waiting for Dr. O'Toole to 
answer the nearly two dozen questions I submitted to her during the 
past month. As of Monday, she has answered each question.
  While I continue to have concerns about this nominee failing to 
disclose her activities as strategic director for the Alliance for 
Biosecurity, I will not hold up consideration of her nomination. A 
September 8, 2009 article in the Washington Times referred to the 
Alliance as a ``lobbying group funded by the pharmaceutical industry.''
  Specifically, the article stated, ``The alliance has spent more than 
$500,000 lobbying Congress and federal agencies--including Homeland 
Security--since 2005, congressional records show. However, Homeland 
Security officials said Dr. O'Toole need not disclose her ties to the 
group on her government ethics form because the alliance is not 
incorporated . . . Analysts say the lack of disclosure reflects a 
potential loophole in the policies for the Obama administration, which 
has boasted about its efforts to make government more transparent.''
  The article continued:

       They also question lobbying laws that allow such a group to 
     spend hundreds of thousands of dollars without the public 
     knowing exactly how much money each of the companies that 
     belongs to the group contributes, though such arrangements 
     are permitted under the law . . . Ethics rules require 
     nominees to report any paid or unpaid positions held outside 
     of government, including but not limited to those of 
     ``officer, trustee, general partner, representative, employee 
     or any consultant of any corporation, firm, partnership or 
     other business enterprise.'' Dr. O'Toole signed a letter on 
     behalf of the group sent to the White House as recently as 
     March.

  I put forward numerous questions to Dr. O'Toole about her ``stealth 
lobbying'' on behalf of the Alliance. She repeatedly answered that her 
``activities did not constitute lobbying.''' I also asked numerous 
questions about her involvement in securing an earmark for the Center 
for BioSecurity at the University of Pittsburgh Medical Center. She 
provided answers to the questions and stated that although she provided 
a statement for the media in support of the earmark, she did not 
provide any assistance in lobbying Congress for the earmark.
  Elections have consequences, and while she would not have been the 
nominee I would have chosen for this position, she is the President's 
choice.
  I ask unanimous consent that the September 8, 2009, Washington Times 
article be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, Sept. 8, 2009]

                 Obama Nominee Omitted Ties to Biotech

                          (By Jim McElhatton)

       President Obama's nominee at the Department of Homeland 
     Security overseeing bioterrorism defense has served as a key 
     adviser for a lobbying group funded by the pharmaceutical 
     industry that has asked the government to spend more money 
     for anthrax vaccines and biodefense research.
       But Dr. Tara O'Toole, whose confirmation as undersecretary 
     of science and technology is pending, never reported her 
     involvement with the lobbying group called the Alliance for 
     Biosecurity in a recent government ethics filing.
       The alliance has spent more than $500,000 lobbying Congress 
     and federal agencies--including Homeland Security--since 
     2005, congressional records show.
       However, Homeland Security officials said Dr. O'Toole need 
     not disclose her ties to the group on her government ethics 
     form because the alliance is not incorporated: ``There's no 
     legal existence so she wouldn't have to disclose it,'' said 
     Robert Coyle, an ethics official for the Department of 
     Homeland Security.
       Analysts say the lack of disclosure reflects a potential 
     loophole in the policies for the Obama administration, which 
     has boasted about its efforts to make government more 
     transparent. They also question lobbying laws that allow such 
     a group to spend hundreds of thousands of dollars without the 
     public knowing exactly how much money each of the companies 
     that belongs to the group contributes, though such 
     arrangements are permitted under the law.
       ``You're not allowing the public to know the full 
     background of this nominee,'' said Judy Nadler, a senior 
     fellow at the Markkula Center for Applied Ethics at Santa 
     Clara University in California. ``It shouldn't matter whether 
     it's incorporated or not.''
       Craig Holman, legislative director of the nonpartisan 
     watchdog group Public Citizen, said the lack of disclosure 
     ``definitely and clearly runs counter to the intent of the 
     law.''
       Ethics rules require nominees to report any paid or unpaid 
     positions held outside of government, including but not 
     limited to those of ``officer, trustee, general partner, 
     representative, employee or any consultant of any 
     corporation, firm, partnership or other business enterprise. 
     . . .'' Dr. O'Toole signed a letter on behalf of the group 
     sent to the White House as recently as March.
       Dr. O'Toole declined to comment for this article. Her 
     office referred questions to Mr. Coyle at Homeland Security 
     and to officials for the Alliance for Biosecurity, who said 
     the group is in ``full compliance'' with lobbying rules and 
     noted that there were no financial ties between the Center 
     for Biosecurity, where Dr. O'Toole is chief executive, and 
     the lobbying group she help found.
       In written testimony to Congress, Dr. O'Toole said the 
     alliance was ``created to protect the Center for 
     Biosecurity's status as an honest broker between the 
     biopharma companies and the U.S. government.''
       As undersecretary of science and technology, one of Dr. 
     O'Toole's responsibilities would involve overseeing the 
     department's chemical and biological division, which is in 
     charge of making sure the nation is prepared to defend itself 
     against chemical and biological attacks.
       Dr. O'Toole was nominated less than four years after the 
     alliance was formed in 2005. She has served as the group's 
     unpaid strategic director and has signed her name on more 
     than a dozen letters sent to Congress and federal agencies.
       The group's letters to policymakers often seek more money 
     for research and vaccines. She signed the letters as the 
     group's strategic director, in addition to listing her full-
     time paid job as director of the Center for Biosecurity, 
     which is affiliated with the University of Pittsburgh.

[[Page S11104]]

       The letters, including one that Dr. O'Toole sent to House 
     Speaker Nancy Pelosi, California Democrat, last fall, 
     describe the Alliance for Biosecurity as a ``collaboration'' 
     among the Center for Biosecurity of the University of 
     Pittsburgh Medical Center, pharmaceutical companies and 
     biotechnology companies ``working to develop vaccines, 
     medicines and other medical countermeasures for the nation's 
     Strategic National Stockpile.''
       Members include companies such as Pfizer Inc., Sig 
     Technologies and PharmAthene Inc. The group discloses the 
     letters and list of members on a Web site.
       But for all its lobbying and letters to Congress, the 
     alliance isn't incorporated, it doesn't have a bank account 
     and its day-to-day operations are overseen by the K Street 
     lobbying arm of Drinker Biddle & Reath LLP, which also 
     lobbies on behalf of the alliance, according to records and 
     interviews.
       The alliance's legal counsel, Anita Cicero, is also a 
     Drinker Biddle lawyer who serves as a lobbyist for the group. 
     In an e-mail response to questions about the alliance, Ms. 
     Cicero said the group was formed to work ``in the public 
     interest to improve prevention and treatment of severe 
     infectious diseases--particularly those diseases that present 
     global security challenges in the 21st century.''
       Ms. Cicero described the lobbying activities as focusing on 
     broad issues. ``The overarching advocacy issues we address 
     run across the industry, and we do not conduct lobbying 
     activities to advance the commercial interests of any 
     individual member company,'' she said.
       Still, a review of the group's correspondence to federal 
     lawmakers along with member companies' public disclosures to 
     investors show that the lines between advocacy and commercial 
     interests aren't always clear.
       In an Oct. 31 letter to Mrs. Pelosi signed by Dr. O'Toole 
     and two other alliance officials, the group called on 
     Congress to include more than $900 million for the ``advanced 
     development of medical countermeasures'' to be administered 
     by the Biomedical Advanced Research and Development 
     Authority.
       The letter also was signed by the chief executive officer 
     of member company PharmAthene, David Wright, who was one of 
     the two first co-chairmen for the alliance after its creation 
     in 2005.
       Mr. Wright's company has a big financial interest in 
     securing work from the authority, according to investor 
     filings. A Securities and Exchange Commission filing last 
     summer disclosed that PharmAthene has been trying to win a 
     contract administered by the authority to supply 25 million 
     doses of an anthrax vaccine to the national stockpile, which 
     is overseen by the Department of Health and Human Services.
       As undersecretary, Dr. O'Toole wouldn't be directly 
     responsible for decisions on which vaccines to develop or 
     buy. Still, she would oversee the government's threat 
     assessments on the risks of bioagents.
       Dr. O'Toole has told the Senate in written testimony that 
     she would adhere to all ethics rule on conflicts of 
     interests, but that because she has no financial interest in 
     PharmAthene, she's not aware of any recusal requirements if 
     she were to become involved in decisions concerning 
     government funding for anthrax vaccine development.
       Ethics groups say the alliance's setup is an example of 
     what critics call ``stealth lobbying,'' in which like-minded 
     companies form a loosely knit compact and spend lots of money 
     lobbying the government. The arrangement is legal, but it 
     exposes loopholes that prevent the public from finding out 
     how much money each company pays and whether one business 
     exerts more control over the others.
       Ms. Cicero said the group is complying with all applicable 
     federal laws and that the alliance discloses on a Web site 
     its membership list and correspondence to the White House, 
     Congress and federal agencies. She said the companies pay a 
     ``pro rata'' share to the Drinker Biddle & Reath firm.
       ``The alliance does not generate income, does not have a 
     bank account and does not owe taxes,'' she said.
       Ms. Cicero said the law firm ``regularly convenes consortia 
     of biopharma companies that share common goals or interests 
     and provides secretarial and legal support for the groups.'' 
     She said the alliance was formed so companies, academic 
     institutions and the government could work together to 
     ``accelerate the development of therapeutic and vaccine 
     countermeasures.''
       Ms. Cicero said Dr. O'Toole no longer has an active role as 
     the strategic director for the alliance.
       Another lobbying client of the firm, the International 
     Pharmaceutical Aerosol Consortium, appears structured 
     similarly. There are no records of any incorporation papers 
     for that group, either. The group has a Web site listing 
     several pharmaceutical companies as members, and Senate 
     records show it has paid more than $250,000 to Drinker, 
     Biddle & Reath since 2007.
       Government watchdog groups acknowledge that the arrangement 
     is legal but say it seems at odds with lobbying reform laws 
     that were intended to shed more light on who bankrolls and 
     controls special interest groups.
       ``At the end of the day, companies that form coalitions 
     like this are being able to get around having to disclose the 
     full breadth of who they are and what they're doing,'' said 
     Dave Levinthal, a spokesman for the nonpartisan Center for 
     Responsive Politics. ``Does that cut against an open and 
     transparent government? It appears that it does.
       ``Stealth lobbying has been taking place for years and 
     despite the focus on the influence of lobbying, what's 
     happening is that organizations are finding, if not 
     loopholes, then ways around the spirit of the law,'' he said. 
     ``Companies that are lobbying Congress are not necessarily 
     disclosing the full strength of their lobbying.''

  Mr. LEVIN. Mr. President, I cannot support the nomination of Dr. Tara 
O'Toole to be the Under Secretary for Science and Technology at the 
Department of Homeland Security.
  By its nature, this position requires a disinterested scientific 
approach to issues affecting homeland security. It is a position which 
the Department of Homeland Security and its policymakers must rely on 
for objective advice and counsel.
  Dr. O'Toole fell short of the strict adherence to scientific 
principles when she was the director of the Johns Hopkins Center for 
Civilian Biodefense Strategies. Dr. O'Toole was one of the principal 
designers and authors of the June 2001 Dark Winter exercise that 
simulated a covert attack on the United States by bioterrorists.
  The Dark Winter exercise had a deadly serious purpose: to assess the 
vulnerability of the United States to a biological weapons attack and 
our ability to deal with such an attack.
  But many top scientists have said that the Dark Winter exercise was 
based on faulty and exaggerated assumptions about the transmission rate 
of smallpox.
  Dr. James Koopman of the Department of Epidemiology at the University 
of Michigan, an expert at modeling the transmission rates of infectious 
diseases who participated in the smallpox eradication program, has said 
that Dr. O'Toole ``has not sought balanced scientific input in her 
thinking, that she shows a lack of analytic orientation to scientific 
issues, and that she has generated hype about bioterrorism that she 
will feel obligated to defend rather than pursue a balanced approach.''
  Dr. Anthony Fauci, the Director of the National Institute of Allergy 
and Infectious Diseases, told me that the conclusions of the Dark 
Winter exercise were ``dramatically affected'' by the assumptions that 
were used, and that these assumptions were ``much, much worse than 
would have been the case'' in real life.
  Dr. Michael Lane, the former Director of the Centers For Disease 
Control Smallpox Eradication Program--who has had extensive and first-
hand experience with the disease--found the assumptions about smallpox 
transmission rates in the Dark Winter exercise ``improbable'' and even 
``absurd.''
  The transmission rate of smallpox was not the only area where Dr. 
O'Toole exaggerated the facts. On February 19, 2002, she wrote that 
``Many experts believe that the smallpox virus is not confined to these 
2 official repositories [1 in the United States and 1 in Russia] and 
may be in the possession of states or subnational groups pursuing 
active biological weapons programs.'' This statement referenced a New 
York Times article of June 13, 1999, for support of that very startling 
statement about ``subnational groups.'' But the article she cited made 
no reference to any subnational or terrorist or nonstate group 
possessing active biological weapons programs.
  Bioterrorism poses a serious threat to our national security. But it 
is one of many threats we face. All threats to our security must be 
addressed objectively and scientifically so that we spend our resources 
in the most effective way possible to address the most likely and most 
dangerous threats. Exaggerations for the purpose of influencing policy 
makers do a disservice and result in the misallocation of limited 
resources that must be utilized wisely and objectively in order to 
enhance our security.
  Mr. LIEBERMAN. Mr. President, I rise today to urge my colleagues to 
take up and approve the nomination of Dr. Tara O'Toole to be Under 
Secretary of Science and Technology at the Department of Homeland 
Security.
  When the Homeland Security and Governmental Affairs Committee held 
its confirmation hearing on Dr. O'Toole's nomination I said I believed 
it was an ``inspired choice.''
  My judgment remains unchanged and I would note that her nomination 
was reported out of committee favorably on a bipartisan basis with just 
one dissenting Democratic vote.

[[Page S11105]]

  I would also note that DHS Secretary Janet Napolitano has been 
pleading with the Senate to confirm Dr. O'Toole. Secretary Napolitano 
has said that Dr. O'Toole's biosecurity and epidemiology expertise are 
critical to DHS and to her, personally. The Secretary's urgency is 
heightened because of the critical roles Dr. O'Toole will play in both 
defending our Nation against bioterrorism and in the continuing 
preparations for the H1N1 flu pandemic.
  Let's consider the tough job Dr. O'Toole has been asked to take on 
and then consider the qualifications she brings to it.
  The Science and Technology Directorate is charged with managing our 
Nation's investments in homeland security research and development 
projects with the goal of providing its customers within and without 
the DHS the kinds of state-of-the-art technologies they need to achieve 
their missions.
  The S&T Directorate got off to a rocky start and struggled in its 
early years to clarify and execute its primary mission. Former Under 
Secretary Jay M. Cohen resolved to build a leaner and more tightly 
managed organization that focused on better serving its customers and 
being transparent with Congress. He implemented internal controls to 
monitor S&T finances and track the progress of S&T investments. He 
established a structured strategic planning process that is designed to 
produce specific objectives and annual performance measures.
  But despite this progress, big challenges await the new 
undersecretary, including expanding investments in innovative R&D for 
homeland security--like the advanced spectroscopic portal, ASP, and the 
secure border initiative--and insuring the reliability of the a testing 
and evaluation that DHS relies on for large acquisition programs.
  Programs like these can be force multipliers for DHS's customers 
within and without the department.
  Now let's consider the resume Dr. O'Toole brings to the job--both as 
a medical professional and as a manager.
  Let's start with Dr. O'Toole's solid and impressive educational 
background: a bachelor's degree from Vassar College, a medical degree 
from George Washington University, and a master of public health degree 
from Johns Hopkins University.
  Now let's consider her management skills: From 1989 to 1993 she 
served as a senior analyst and project director with the Congressional 
Office of Technology Assessment; from 1993 to 1997, she served as the 
Assistant Secretary for Environment, Safety and Health at the 
Department of Energy.
  From 1999 to 2003, she managed the Johns Hopkins Center for Civilian 
Biodefense Strategies. For the last 6 years, she has served as the 
Director and Chief Executive Officer of the Center for Biosecurity at 
the University of Pittsburgh.
  On top of all this, Dr. O'Toole is also an accomplished author.
  She has published her research on anthrax, smallpox, the plague, 
biological attacks, containment of contagious disease epidemics, 
biodefense, and hospital preparedness. She is coeditor in chief of the 
Journal of Biosecurity and Bioterrorism.
  And she took all this knowledge she has gained over these many years 
and used it to help create the 2001 bio-terror attack simulation known 
as ``Operation Dark Winter'' that helped open our eyes to our many 
vulnerabilities.
  Dr. O'Toole is also a former chair of the board of the Federation of 
American Scientists and she has participated in major studies or 
advisory panels at the request of the National Science Foundation, the 
Department of Defense, the Department of Health and Human Services and 
the Department of Homeland Security.
  Besides these many qualifications, another important measure of her 
fitness for this post is the bipartisan respect she has earned across 
the government and scientific communities that monitor homeland 
security and bioterrorism challenges.
  Among her many supporters are: Former Senators Bob Graham and Jim 
Talent, Chairman and Cochairman of the Commission on the Prevention of 
WMD Proliferation and Terrorism; former DHS Secretary Tom Ridge; former 
Senator and defense expert Sam Nunn; former National Security Adviser 
to Presidents Gerald Ford and George H.W. Bush, Brent Scowcroft, as 
well as Dr. Robert P. Kadlec, former Special Assistant for Biodefense 
Policy at the Homeland Security Council under President Bush; Dr. D.A. 
Henderson, who led the World Health Organization's efforts to rid the 
world of smallpox, and the Federation of American Scientists.
  Dr. O'Toole brings a remarkable breadth of experience to this job 
that is so crucial to our nation's security and I say again she is an 
inspired choice and I urge my 3 colleagues to take up her nomination 
and confirm her to this position where our nation so desperately needs 
her talents.
  The PRESIDING OFFICER. The question is, Will the Senate advise and 
consent to the nomination of Tara Jeanne O'Toole, of Maryland, to be 
Under Secretary for Science and Technology, Department of Homeland 
Security?
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is laid upon the table, and the President will be 
immediately notified of the Senate's action.

                          ____________________