[Congressional Record Volume 164, Number 159 (Wednesday, September 26, 2018)]
[House]
[Pages H9070-H9072]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       IG SUBPOENA AUTHORITY ACT

  Mr. RUSSELL. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 4917) to amend the Inspector General Act of 1978 to provide 
testimonial subpoena authority, and for other purposes.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 4917

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``IG Subpoena Authority Act''.

     SEC. 2. ADDITIONAL AUTHORITY PROVISIONS FOR INSPECTORS 
                   GENERAL.

       The Inspector General Act of 1978 (5 U.S.C. App.) is 
     amended--
       (1) by inserting after section 6 the following new section:

     ``SEC. 6A. ADDITIONAL AUTHORITY.

       ``(a) Testimonial Subpoena Authority.--In addition to the 
     authority otherwise provided by this Act and in accordance 
     with the requirements of this section, each Inspector 
     General, in carrying out the provisions of this Act (or in 
     the case of an Inspector General or Special Inspector General 
     not established under this Act, the provisions of the 
     authorizing statute), is authorized to require by subpoena 
     the attendance and testimony of witnesses as necessary in the 
     performance of the functions assigned to the Inspector 
     General by this Act (or in the case of an Inspector General 
     or Special Inspector General not established under this Act, 
     the functions assigned by the authorizing statute), which in 
     the case of contumacy or refusal to obey, such subpoena shall 
     be enforceable by order of any appropriate United States 
     district court. An Inspector General may not require by 
     subpoena the attendance and testimony of any current Federal 
     employees, but may use other authorized procedures.
       ``(b) Nondelegation.--The authority to issue a subpoena 
     under subsection (a) may not be delegated.
       ``(c) Panel Review Before Issuance.--
       ``(1) Approval required.--
       ``(A) Request for approval by subpoena panel.--Before the 
     issuance of a subpoena described in subsection (a), an 
     Inspector General shall submit a request for approval to 
     issue a subpoena to a panel (in this section, referred to as 
     the `Subpoena Panel'), which shall be comprised of three 
     Inspectors General of the Council of the Inspectors General 
     on Integrity and Efficiency, who shall be designated by the 
     Inspector General serving as Chairperson of the Council.
       ``(B) Protection from disclosure.--The information 
     contained in the request submitted by an Inspector General 
     under subparagraph (A) and the identification of a witness 
     shall be protected from disclosure to the extent permitted by 
     law. Any request for disclosure of such information shall be 
     submitted to the Inspector General requesting the subpoena.
       ``(2) Time to respond.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     the Subpoena Panel shall approve or deny a request for 
     approval to issue a subpoena not later than 10 days after the 
     submission of such request.
       ``(B) Additional information for panel.--If the Subpoena 
     Panel determines that additional information is necessary to 
     approve or deny such request, the Subpoena Panel shall 
     request such information and shall approve or deny such 
     request not later than 20 days after the submission of such 
     request.
       ``(3) Denial by panel.--If a majority of the Subpoena Panel 
     denies the approval of a subpoena, that subpoena may not be 
     issued.
       ``(d) Notice to Attorney General.--
       ``(1) In general.--If the Subpoena Panel approves a 
     subpoena under subsection (c), the Inspector General shall 
     notify the Attorney General that the Inspector General 
     intends to issue the subpoena.
       ``(2) Denial for interference with an ongoing 
     investigation.--Not later than 10 days after the date on 
     which the Attorney General is notified pursuant to paragraph 
     (1), the Attorney General may object to the issuance of the 
     subpoena because the subpoena will interfere with an ongoing 
     investigation and the subpoena may not be issued.
       ``(3) Issuance of subpoena approved.--If the Attorney 
     General does not object to the issuance of the subpoena 
     during the 10-day period described in paragraph (2), the 
     Inspector General may issue the subpoena.
       ``(e) Regulations.--The Chairperson of the Council of the 
     Inspectors General on Integrity and Efficiency, in 
     consultation with the Attorney General, shall prescribe 
     regulations to carry out the purposes of this section.
       ``(f) Inspector General Defined.--For purposes of this 
     section, the term `Inspector General' includes each Inspector 
     General established under this Act and each Inspector General 
     or Special Inspector General not established under this Act.
       ``(g) Applicability.--The provisions of this section shall 
     not affect the exercise of authority by an Inspector General 
     of testimonial subpoena authority established under another 
     provision of law.'';
       (2) in section 5(a)--
       (A) in paragraph (21)(B), by striking ``; and'' and 
     inserting a semicolon;
       (B) in paragraph (22), by striking the period at the end 
     and inserting ``; and''; and
       (C) by inserting at the end the following new paragraph:
       ``(23) a description of the use of subpoenas for the 
     attendance and testimony of certain witnesses authorized 
     under section 6A.''; and
       (3) in section 8G(g)(1), by inserting ``6A,'' before ``and 
     7''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Oklahoma (Mr. Russell) and the gentleman from California (Mr. Gomez) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Oklahoma.


                             General Leave

  Mr. RUSSELL. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Oklahoma?
  There was no objection.
  Mr. RUSSELL. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I urge support of my bill, H.R. 4917, the IG Subpoena 
Authority Act. H.R. 4917 would provide inspectors general the authority 
to subpoena contractors, grant recipients, and former Federal employees 
for testimony necessary for their investigations.
  Inspectors general perform a critical role in the performance of the 
Federal Government by rooting out waste, fraud, and abuse. In fiscal 
year 2016 alone, Federal inspectors general identified potential 
savings of over $45 billion. Nearly half of those savings were 
identified in the course of the IG's investigative work.
  Congress, the American people, and the agencies themselves rely on 
inspectors general reviews to find areas for improved efficiency and 
effectiveness, but those reviews are limited by the IG's inability to 
compel contractors and former employees to cooperate. The IG Subpoena 
Authority Act gives inspectors general a much-needed tool to fulfill 
their investigative function under the Inspector General Act.
  To effectively identify waste, fraud, and abuse, IGs should be able 
to conduct a thorough and complete investigation. To conduct a thorough 
and complete investigation, however, IGs need to be able to talk to the 
people involved.
  Unfortunately, inspectors general haven't always been able to obtain 
testimony from those key individuals. They collect testimony from 
Federal employees, but sometimes the employees resign or retire before 
the inspectors general can review them. In fact, the IG community has 
informed us of many cases that went cold when witnesses left the 
agencies or refused to testify voluntarily.
  This bill seeks to address these gaps in the evidentiary record by 
permitting IGs to subpoena the testimony of witnesses during the course 
of an audit or investigation. The bill establishes procedures to ensure 
the authority is not abused.
  To prevent abuse, inspectors general must get approval from a 
subpoena review panel that will be made up of three other inspectors 
general. The review panel must approve or deny the subpoena request 
within 10 days of the request being filed.

[[Page H9071]]

  Further, if a subpoena request is approved by the panel, the 
requesting IG must notify the Attorney General of the pending subpoena. 
The Attorney General is then able to review the subpoena and may object 
to its issuance if it will interfere with an ongoing Department of 
Justice investigation. An IG must complete all of these steps prior to 
issuing the subpoena.
  A version of this bill already passed the House once before. Last 
Congress, the committee worked on a bipartisan, bicameral basis to 
enact the Inspector General Empowerment Act. When it first passed the 
House, the Inspector General Empowerment Act included testimonial 
subpoena authority for IGs. Although the provision did not make it into 
law, I hope that changes this year.
  I would like to thank the Council of Inspectors General on Integrity 
and Efficiency, especially the Department of Justice Inspector General 
Michael Horowitz, who chairs the Council, and Peace Corps Inspector 
General Kathy Buller, who chairs its Legislation Committee, for their 
work in support of this bill.
  Mr. Speaker, I include in the Record a letter from Ms. Buller 
supporting the legislation.

         Council of the Inspectors General on Integrity and 
           Efficiency,
                                                     June 7, 2018.
     Hon. Trey Gowdy,
     Chairman, House Committee on Oversight and Government Reform, 
         House of Representatives, Washington, DC.
     Hon. Elijah Cummings,
     Ranking Member, House Committee on Oversight and Government 
         Reform, House of Representatives, Washington, DC.
     Hon. Steve Russell,
     House of Representatives,
     Washington, DC.
       Dear Chairman Gowdy, Ranking Member Cummings, and 
     Representative Russell: We appreciate your efforts to address 
     the Inspector General (IG) community's long-standing interest 
     in obtaining testimonial subpoena authority (TSA) for all IGs 
     and would like to outline our views on H.R. 4917, the IG 
     Subpoena Authority Act. For many years, the Legislation 
     Committee of the Council of the Inspectors General on 
     Integrity and Efficiency (CIGIE) has included TSA among its 
     legislative priorities.
       The authority in H.R. 4917 would assist government 
     oversight by providing a critical tool to address fraud, 
     waste, and abuse by authorizing all IGs to subpoena the 
     attendance and testimony of certain witnesses, as necessary, 
     to fulfill the functions of the Inspector General Act of 
     1978, as amended (IG Act). CIGIE supports the language in the 
     bill aligning the scope of TSA with the IG's existing 
     documentary subpoena authority, found in Section 6(a)(4) of 
     the IG Act. While requiring that any subpoena be necessary in 
     the performance of IG work, the language does not limit who 
     may be subpoenaed, other than with respect to current Federal 
     employees (as they are already generally required to 
     cooperate with OIGs).
       Congress has already granted some IGs TSA under the IG Act 
     or through other laws. The Department of Defense Office of 
     Inspector General (DOD OIG) was provided TSA under Section 
     1042 of the National Defense Authorization Act of 2010, 
     codified at Section 8(i) of the IG Act. As noted in the 
     Congressional record, DOD OIG has used this authority 
     judiciously and sparingly. The Department of Health and Human 
     Services OIG also has testimonial subpoena power in certain 
     circumstances. Moreover, IGs overseeing appropriations under 
     the American Recovery and Reinvestment Act of 2009 received 
     TSA to be exercised through the now-sunsetted Recovery 
     Accountability and Transparency Board.
       Following the practice of those IGs who already have or had 
     TSA, CIGIE is committed to ensuring that the authority will 
     be used appropriately and fairly. In short, CIGIE echoes 
     Ranking Member Cummings's belief that IGs would ``act 
     responsibly and use this authority only when absolutely 
     necessary,'' and that appropriate safeguards provide checks 
     on potential abuse.


                            THE NEED FOR TSA

       While the current IG documentary subpoena authority under 
     the IG Act is a powerful tool, it is a tool with inherent 
     limitations. Most notably, Federal employees who are the 
     subjects of IG investigations can retire or resign while 
     being investigated. In such cases, limitations on IG 
     documentary subpoena authority or other IG Act authorities 
     can thwart IG investigations. For example, this could impact 
     the ability to pursue the investigations considered under the 
     Official Personnel File Enhancement Act.
       These limitations have had negative, real world effects on 
     IG oversight and can impact Congressional initiatives. As 
     Chairman Gowdy has recognized, ``[y]ou're only as good as 
     your access to information and witnesses.'' An informal 
     survey of the IG community revealed TSA would have 
     strengthened IG oversight throughout the Federal government 
     as illustrated in the following examples:
       One agency's OIG conducted an investigation of a senior 
     staff member who allegedly modified official documents and 
     impersonated an official, before retiring during the 
     investigation. The former senior staff member was not 
     receptive to being interviewed after retiring. Because the 
     OIG lacked TSA, the OIG could not compel testimony from the 
     retired senior staff member to conduct an effective 
     investigation.
       In connection with an OIG's review of alleged safety issues 
     at an agency facility, the OIG was unable to interview the 
     central person identified in the allegation or that person's 
     supervisor since both had left Federal service and declined 
     voluntary interviews. The unavailability of those key 
     witnesses hampered the OIG's ability to fully investigate 
     alleged safety issues or to address a key objective of the 
     inspection, which was to identify factors that may have 
     contributed to leadership being unaware of those issues.
       During another OIG's investigation into a small business 
     owner who received two Federal grants for overlapping 
     business proposals, key individuals declined to be 
     interviewed by the OIG. One of the employees confessed to 
     destroying company documents and creating new ones at the 
     request of the owner. After the confession, other individuals 
     involved declined to be interviewed. Without TSA or the 
     cooperation of another employee or the owner, the OIG was 
     unable to pursue obstruction and other potential charges 
     against the subjects.
       Another agency's OIG faced obstacles when investigating 
     fraud associated with a loan program. The loan officer was 
     the only source of information to determine the individual 
     associated with the borrower. The OIG was unable to 
     effectively complete the investigation because the bank 
     declined to make the loan officer available for an interview.
       A different OIG discovered a contractor was being paid for 
     services it did not provide, and only minimal information 
     could be collected through documentary subpoena authority. 
     Attempts to contact the contractor were unproductive. If that 
     OIG had TSA, the OIG could have compelled the contractor's 
     representative to be interviewed.
       An OIG was reviewing third-party contractors retained by 
     the agency to provide healthcare services to eligible 
     individuals. The OIG could not determine if the contractors 
     provided proper notifications to individuals about their 
     eligibility for the services. Without the ability to compel 
     the contractors to testify, the OIG could rely only on 
     records, which did not contain specific information on which 
     to base conclusions.
       Yet another OIG was unable to effectively examine potential 
     false and fraudulent billing after discovering an 
     unauthorized subcontractor was performing the majority of 
     work under a large contract. As the subcontractor was not in 
     a direct contractual relationship with the agency, the OIG 
     had to rely on documentary subpoenas. If that OIG had TSA, it 
     could have fully examined the potentially false and 
     fraudulent billing.
       An investigation conducted on behalf of the Integrity 
     Committee was unable to obtain evidence from a former senior 
     level OIG employee who had retired from Federal service and 
     declined to speak with investigators. The investigation 
     concluded without the former senior level OIG employee's 
     evidence.
       Another OIG encountered a significant obstacle while 
     conducting an audit where several former government officials 
     refused to be interviewed. Without the ability to compel 
     their testimony, the OIG had to report their refusal to the 
     appropriate Congressional oversight committee. Only after the 
     OIG reported this refusal to Congress did these former 
     government officials finally agree to be interviewed. If that 
     OIG had TSA, it would not have needed Congressional 
     intervention to complete its oversight work.


                  SUBPOENA PANEL AND OTHER PROVISIONS

       With respect to the IG subpoena panel created in the bill, 
     and given the nature of the authority being granted, we 
     understand the interest of Congress in putting in place an 
     additional check on the use of TSA. While, in our view, the 
     provision is unnecessary, we do not object to its inclusion. 
     CIGIE requests, however, that two additional points related 
     to the language of the legislation be reconsidered. First, 
     the non-delegation clause in the proposed IG Act Section 
     ``6A(b)'' may create problems for OIGs subject to the Federal 
     Vacancies Reform Act. Most relevantly, it could limit long-
     serving acting IGs from exercising the authority when the 
     acting IG is no longer able to perform the ``duties and 
     functions'' designated solely to the IG. To avoid this issue, 
     we recommend that this provision be removed. Second, with 
     respect to the proposed IG Act Section ``6A(e)'', having the 
     CIGIE Chair issue guidelines to IGs, rather than promulgate 
     regulations, would achieve Congress's intent of standardizing 
     and governing the use of TSA without requiring CIGIE to 
     undergo a lengthy and resource-intensive rulemaking process. 
     Moreover, it will be more economical to update or modify 
     guidelines as needed.


              SUPPORT FROM CONGRESS AND OTHER STAKEHOLDERS

       The benefits of this legislation are reflected in the 
     support expressed by government oversight stakeholders for 
     providing IGs with TSA. Importantly, bi-partisan support for 
     providing IGs with TSA has come not just from the House 
     Oversight and Government Reform Committee, but also from the 
     unanimous consent it received in the House of Representatives 
     last Congress. Other important government oversight 
     stakeholders have also expressed how government oversight 
     would benefit from OIGs

[[Page H9072]]

     receiving TSA. For example the Office of Special Counsel 
     wrote to Senate leadership describing how providing IGs with 
     this authority will enhance IG efforts to reduce government 
     waste and abuse, and how TSA has been helpful in reprisal 
     investigations undertaken by the Office of Special Counsel. 
     Nongovernmental organizations emphasized in a May 2016 letter 
     to Congress that OIGs are essential to a well-functioning 
     Government, and noted that providing access to agency 
     information, including through TSA, would allow OIGs to 
     conduct proper oversight. As evidenced by both Congressional 
     and stakeholder support, TSA will benefit the IG community in 
     carrying out its oversight operations.


                               CONCLUSION

       CIGIE appreciates your continued support of our work and 
     the House Committee on Oversight and Government Reform's 
     efforts to improve government oversight through H.R. 4917. In 
     the decades since the IG Act's passage, IGs have saved 
     taxpayers hundreds of billions of dollars and improved the 
     programs and operations of the Federal government through 
     their independent oversight. Testimonial subpoena authority 
     would further improve the ability of IGs to detect and 
     prevent fraud, waste, and abuse in Federal operations. As 
     Representative Russell stated, ``Inspectors General are an 
     essential partner for Congress and by extension to we the 
     people that empower government,'' and ``we must provide 
     Inspectors General with the tools they need to fully 
     accomplish their mission. Testimonial subpoena authority is 
     one such tool, and a critical one at that.''
       Thank you for your continued support of CIGIE and its 
     member IGs. We remain available to continue to work with you 
     and the Congress on the important issues addressed in this 
     legislation. If you have any questions, please do not 
     hesitate to contact me.
           Sincerely,
                                                  Kathy A. Buller,
                               Chair, CIGIE Legislation Committee.

  Mr. RUSSELL. Mr. Speaker, lastly, I would like to thank my Democratic 
colleagues for their support and thoughtful dialogue, particularly the 
gentleman from Virginia (Mr. Connolly) and the gentleman from 
Pennsylvania (Mr. Cartwright), who sponsored this bill with me.
  Mr. Speaker, I urge my colleagues to support the bill, and I reserve 
the balance of my time.

                              {time}  1900

  Mr. GOMEZ. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this bill would give inspectors general the ability to 
subpoena witnesses to testify. This would be a significant new 
authority.
  Although I believe most IGs would act responsibly, it is important 
that we include safeguards to protect against potential abuse of this 
new authority.
  This bill includes several such safeguards. The bill would require an 
IG, before issuing a subpoena, to go through two reviews.
  The first review would be conducted by the Council of Inspectors 
General for Integrity and Efficiency. A panel of three council members 
would have to approve the subpoena before the IG could issue it.
  The second review would be conducted by the attorney general, who 
would have the opportunity to block a subpoena if it would interfere 
with an ongoing investigation.
  The bill attempts to strike a careful balance in granting IGs the 
authority to interview witnesses outside of the government while also 
providing these important checks against potential abuse.
  Mr. Speaker, I yield back the balance of my time.
  Mr. RUSSELL. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, one of the chief complaints of the American people is 
that we can't hold our government accountable. This bill goes a long 
way to correct that.
  In the future, no longer will people be able to simply walk away from 
agencies and duties in government without any accounting. We have built 
in the safeguards, and we have worked in a bipartisan way, so that we 
can achieve that aim.
  Mr. Speaker, I urge adoption of the bill, and I yield back the 
balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Oklahoma (Mr. Russell) that the House suspend the rules 
and pass the bill, H.R. 4917.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________