[Senate Report 104-282]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 439
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-282
_______________________________________________________________________


 
   REPEALING CERTAIN PROHIBITIONS AGAINST POLITICAL RECOMMENDATIONS 
RELATING TO FEDERAL EMPLOYMENT, REENACTING CERTAIN PROVISIONS RELATING 
   TO RECOMMENDATIONS BY MEMBERS OF CONGRESS, AND FOR OTHER PURPOSES

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                              to accompany

                                 S. 253

   REPEALING CERTAIN PROHIBITIONS AGAINST POLITICAL RECOMMENDATIONS 
RELATING TO FEDERAL EMPLOYMENT, REENACTING CERTAIN PROVISIONS RELATING 
   TO RECOMMENDATIONS BY MEMBERS OF CONGRESS, AND FOR OTHER PURPOSES




                   June 19, 1996.--Ordered to printed


                   COMMITTEE ON GOVERNMENTAL AFFAIRS

   TED STEVENS, Alaska, Chairman
JOHN GLENN, Ohio                     WILLIAM V. ROTH, Jr., Delaware
SAM NUNN, Georgia                    WILLIAM S. COHEN, Maine
CARL LEVIN, Michigan                 FRED THOMPSON, Tennessee
DAVID PRYOR, Arkansas                THAD COCHRAN, Mississippi
JOSEPH I. LIEBERMAN, Connecticut     JOHN McCAIN, Arizona
DANIEL K. AKAKA, Hawaii              BOB SMITH, New Hampshire
BYRON L. DORGAN, North Dakota        HANK BROWN, Colorado
    Albert L. McDermott, Staff 
             Director
  Leonard Weiss, Minority Staff 
             Director
  Michal Sue Prosser, Chief Clerk
                                 ------                                

             SUBCOMMITTEE ON POST OFFICE AND CIVIL SERVICE

   TED STEVENS, Alaska, Chairman
DAVID PRYOR, Arkansas                THAD COCHRAN, Mississippi
DANIEL K. AKAKA, Hawaii              JOHN McCAIN, Arizona
BYRON L. DORGAN, North Dakota        BOB SMITH, New Hampshire
    Patricia A. Raymond, Staff 
             Director
 Kimberly Weaver, Minority Staff 
             Director
    Nancy Langley, Chief Clerk



                                                       Calendar No. 439
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-282
_______________________________________________________________________


   REPEALING CERTAIN PROHIBITIONS AGAINST POLITICAL RECOMMENDATIONS 
RELATING TO FEDERAL EMPLOYMENT, REENACTING CERTAIN PROVISIONS RELATING 
   TO RECOMMENDATIONS BY MEMBERS OF CONGRESS, AND FOR OTHER PURPOSES

                                _______


                 June 19, 1996.--Ordered to be printed

_______________________________________________________________________


Mr. Stevens, from the Committee on Governmental Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 253]

    The Committee on Governmental Affairs, to which was 
referred the bill (S. 253) to repeal certain prohibitions 
against political recommendations relating to Federal 
employment, to reenact certain provisions relating to 
recommendations by Members of Congress, and for other purposes, 
reports favorably thereon and recommends that the bill do pass.

                         I. Purpose and Summary

    S. 253 as reported from the Governmental Affairs Committee 
would repeal current law and reinstate previous law with regard 
to letters of recommendation from Members of Congress.
    Under the provisions of S. 253 as reported, Members of 
Congress, state and local officials, officials of political 
parties, and other individuals or organizations would once 
again be allowed to write letters of recommendation for 
citizens seeking Federal jobs. Agency officials would no longer 
be required to return letters of recommendation. Citizens would 
once again be allowed to request such letters of recommendation 
from their Congressional representatives.
    Under the provisions of S. 253 as reported, it would be a 
prohibited personnel practice for an agency official to 
consider a recommendation on behalf of an applicant for a 
Federal job unless it deals with personal knowledge of the 
applicant's work performance, ability, aptitude, or general 
qualifications, or contains an evaluation of the character, 
loyalty, or suitability of the applicant.

                II. Background and Need for Legislation

    During hearings before the Governmental Affairs Committee 
on Hatch Act reform legislation in early 1993, the Director of 
the Office of Personnel Management, Mr. James B. King, observed 
that agency hiring officials were prohibited from considering 
letters of recommendation from Members of Congress, but that 
Members of Congress were not prohibited from writing such 
letters. At that time, he suggested that the law be 
strengthened to protect employees from what he called 
``encroachment of political influence'', not only in the merit 
selection process but with regard to other personnel actions as 
well.
    The Hatch Act reform legislation which was reported from 
the Governmental Affairs Committee and which was subsequently 
signed into law by the President on October 6, 1993 (Public Law 
103-94), contained the provisions recommended by OPM. The 
Committee at that time felt that if Federal employees were to 
be allowed to become politically active off the job, there 
should be additional restrictions on political influence for 
matters on the job.
    Under the new Hatch Act law, which went into effect on 
February 3, 1994, letters from Members of Congress determined 
by agency officials to be political recommendations for career 
civil service jobs are to be returned to the sender, marked as 
being in violation of the law. However, disparate enforcement 
of this provision has resulted in some confusion and concern. 
Members of Congress have complained that even general 
inquiries, which are perfectly legitimate under current law, 
have been returned by some agencies as inappropriate 
communications.
    Language similar to S. 253 to repeal the current 
restrictions was discussed as a possible amendment to the 
regulatory reform bill on July 17, 1995, during the Senate 
debate. Subsequently, on July 20, 1995, repeal language was one 
of five amendments agreed-to en bloc immediately prior to 
Senate passage of the FY '96 Legislative Branch appropriations 
bill; however, that provision was dropped during conference.
    On February 7, 1996, the Governmental Affairs Committee 
held a hearing on the issue of recommendations by Members of 
Congress relating to Federal employment. Witnesses included 
Senator Trent Lott, Senator Paul Simon, and OPM Director James 
B. King.
    Senator Lott and Senator Simon testified in support of 
repeal of current law. Senator Lott shared his opinion that it 
is unconstitutional for any Member to be restricted in his or 
her ability to assist constituents, and that it is 
unconstitutional for constituents to be prohibited from even 
asking for such assistance.
    Senator Simon expressed the view that Members should be 
able to write letters of recommendation for anyone seeking a 
Federal civil service job, including current and former staff 
members. Under current law, letters on behalf of current or 
former staff can be submitted only in response to a request 
from the agency selecting official.
    OPM Director King testified in support of the existing 
restrictions, but acknowledged that there may have been some 
inappropriate implementation of the provision by some agencies. 
Mr. King agreed to work with the Committee to find a solution 
to the problems cited by Senator Lott during the course of the 
hearing.

                        III. Legislative History

    S. 253 was introduced by Senator Trent Lott on January 20, 
1995, and was referred to the Committee on Governmental 
Affairs. The bill was subsequently referred to the Subcommittee 
on Post Office and Civil Service for consideration.
    A hearing of the Governmental Affairs Committee was held on 
the issue of letters of recommendation from Members of Congress 
on February 7, 1996. On April 15, 1996, the Subcommittee 
Members agreed to a unanimous consent request to discharge the 
Subcommittee from further consideration of S. 253.
    The Committee on Governmental Affairs met on April 18, 
1996, to consider S. 253. The bill was ordered reported without 
amendment by voice vote. Senator Hank Brown asked that he be 
recorded as voting ``no'' on the question of favorably 
reporting the bill.
    The text of S. 253, as reported, is as follows:

A BILL to repeal certain prohibitions against political recommendations 
relating to Federal employment, to reenact certain provisions relating 
   to recommendations by Members of Congress, and for other purposes

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

SECTION 1. PROHIBITIONS AGAINST POLITICAL RECOMMENDATIONS RELATING TO 
                    FEDERAL EMPLOYMENT.

    (a) In General.--Section 3303 of title 5, United States 
Code, is amended to read as follows:

``Sec. 3303. Competitive service; recommendations of Senators or 
                    Representatives

    ``An individual concerned in examining an applicant for or 
appointing him in the competitive service may not receive or 
consider a recommendation of the applicant by a Senator or 
Representative, except as to the character or residence of the 
applicant.''.
    (b) Technical and Conforming Amendments.--(1) The table of 
sections for chapter 33 of title 5, United States Code, is 
amended by amending the item relating to section 3303 to read 
as follows:

``3303. Competitive service; recommendations of Senators or 
          Representatives.''.

    (2) Section 2302(b)(2) of title 5, United States Code, is 
amended to read as follows:
          ``(2) solicit or consider any recommendation or 
        statement, oral or written, with respect to any 
        individual who requests or is under consideration for 
        any personnel action unless such recommendation or 
        statement is based on the personal knowledge or records 
        of the person furnishing it and consists of--
                  ``(A) an evaluation of the work performance, 
                ability, aptitude, or general qualifications of 
                such individual; or
                  ``(B) an evaluation of the character, 
                loyalty, or suitability of such individual;''.
    (c) Effective Date.--This Act shall take effect 30 days 
after the date of the enactment of this Act.

                     IV. Summary of the Legislation

    S. 253 would repeal section 3303 of title 5, United States 
Code, and reinstate section 3303 as it existed prior to 
enactment of the Hatch Act Reform Amendments Act of 1993. In 
addition, the bill reinstates former 5 USC 2302(b)(2) which 
makes it a prohibited personnel action for an agency official 
to consider a recommendation unless it is based upon the 
personal knowledge of the writer and speaks to work performance 
or character, loyalty, or suitability of the individual.

                            V. Agency Views

    At the request of the Minority, OPM was asked to review the 
text of S. 253 and prepare appropriate comments for inclusion 
in this report. A copy of the response follows:

                       U.S. Office of Personnel Management,
                                      Washington, DC, May 23, 1996.
Hon. Ted Stevens,
Chairman, Committee on Governmental Affairs, U.S. Senate, Washington, 
        DC.
    Dear Mr. Chairman: This is in response to your request for 
the views of the Office of Personnel Management on S. 253, a 
bill ``To repeal certain prohibitions against political 
recommendations relating to Federal employment, to reenact 
certain provisions relating to recommendations by Members of 
Congress, and for other purposes.''
    The Hatch Act Reform Amendments of 1993, which broadened 
the rights of most Federal employees to participate in 
political activities, also broadened and restructured the 
protections against political influence in Federal personnel 
decisions. While a long-standing provision of law had barred 
Federal examining and appointing officials from receiving or 
considering recommendations from Members of Congress as to 
applicants for the competitive service, the new law prohibits 
Members of Congress and certain other categories of political 
officials from making recommendations to Executive Branch 
agencies about any specific personnel actions, with certain 
exceptions. This new law was closely patterned after a similar 
prohibition in the Postal Reorganization Act of 1970 with 
respect to Postal Service employment. S. 253 would repeal the 
1993 prohibition on political recommendations and reinstate the 
previous, narrower law.
    We are very concerned by this proposed change. We believed 
in 1993, and continue to believe, that the greater opportunity 
provided by the Hatch Act Reform Amendments for Federal 
employees to become politically active, while a much-needed 
change in and of itself, carries with it a potential danger for 
the politicization of the Federal career service. As some 
employees exercise their rights to become politically active 
and become known as partisan adherents, it is very important 
that personnel decisions with respect to the career service be 
free of any political taint, and that not even the appearance 
of political influence be allowed.
    All this being said, we would certainly agree that it may 
well be possible to achieve this same objective with statutory 
protections that differ from the 1993 Reform Amendments' 
prohibitions on political recommendations. S. 253, however, 
goes too far, in our opinion.
    The pre-1993 law that S. 253 would reinstate was part of 
the original Civil Service Act of 1883, and the Federal 
personnel system has become vastly more complicated in the 
intervening years. While that law was concerned only with 
appointments to the competitive service, there are many other 
types of personnel actions--promotions, reassignments, 
disciplinary actions, and many others--where it is equally 
essential to guard against political influence, and many 
agencies in the Government where employees, while not in the 
competitive service, do serve under career-type employment 
arrangements where political influence would be fundamentally 
wrong. Further, in guarding against political influence in 
personnel decisions, we think it is important to spell out 
where it is appropriate for a Member of Congress' views on an 
employee or applicant to be considered, such as where the 
employee or applicant previously worked for a Member.
    While we cannot, therefore, support S. 253, we would 
certainly be ready to work with the Committee to craft any 
appropriate changes in the 1993 law that eliminate any 
restrictions that are not essential to the central purpose of 
preserving the nonpartisan integrity of the Federal career 
service.
    The Office of Management and Budget advises that, from the 
standpoint of the Administration's program, there is no 
objection to the submission of this report.
            Sincerely,
                                           James B. King, Director.

                   VI. Estimated Cost of Legislation

    A copy of the cost estimate by the Congressional Budget 
Office follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 25, 1996.
Hon. Ted Stevens,
Chairman, Committee on Governmental Affairs, U.S. Senate, Washington, 
        DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 253, a bill to repeal certain prohibitions against 
political recommendations relating to federal employment, to 
reenact certain provisions relating to recommendations by 
Members of Congress, and for other purposes, as ordered 
reported by the Senate Committee on Governmental Affairs on 
April 18, 1996. CBO estimates that enacting this bill would 
result in no significant cost to the federal government. 
Enacting S. 253 would not affect direct spending or receipts; 
therefore, pay-as-you-go procedures would not apply to the 
bill.
    S. 253 would repeal certain provisions of the Hatch Act 
Reform Amendments of 1993 (Public Law 103-94), thereby allowing 
Members of Congress to provide personal recommendations as to 
the character of an applicant applying for federal employment, 
as well as allowing potential employers to consider such 
recommendations. We expect these changes to result in no 
significant cost to the federal government.
    S. 253 contains no intergovernmental or private sector 
mandates as defined in Public Law 104-4, and would impose no 
direct costs on state, local, or tribal governments.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mary 
Maginniss (for federal costs), Theresa Gullo (for the state and 
local impact), and Matthew Eyles (for the private sector 
impact).
            Sincerely,
                                         June E. O'Neill, Director.

                 VII. Regulatory Impact of Legislation

    Pursuant to the requirements of paragraph 11(b) of Rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory and paperwork impact of S. 253.
    The only regulation issued pursuant to 5 U.S.C. 3303 is 
found at 5 CFR 300.801 and 802. These two paragraphs require 
agencies to notify employees and applicants of the provisions 
of section 3303 and suggest methods that may be used for 
notification. These two paragraphs would simply be eliminated.
    The Office of Personnel Management has issued guidelines to 
agencies that would have to be revised, as would any agency 
guidelines that were based on the OPM guidance. Most agencies 
have included a brief statement concerning the prohibitions 
contained in section 3303 on their standard vacancy 
announcement format; these references would have to be 
eliminated.
    Passage of S. 253 would reduce paperwork by eliminating the 
requirement for agencies to return to Members of Congress and 
other political officials recommendations deemed to be in 
violation of the prohibition on political recommendations. 
Thus, after the initial effort to rescind 5 CFR 300.801 and 802 
and revise the guidelines, the removal of the requirement to 
notify an official who might have violated section 3303 should 
result in a net paperwork reduction.

                     VIII. Changes in Existing Law

    In compliance with paragraph 12 of Rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 253, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

2302. Prohibited personnel practices

    (b) Any employee who has authority to take, direct others 
to take, recommend, or approve any personnel action, shall not, 
with respect to such authority--
          * * * * * * *
          [(2) solicit or consider any recommendation or 
        statement, oral or written, with respect to any 
        individual who requests or is under consideration for 
        any personnel action except as provided under section 
        3303(f);]
          (2) solicit or consider any recommendation or 
        statement, oral or written, with respect to any 
        individual who requests or is under consideration for 
        any personnel action unless such recommendation or 
        statement is based on the personal knowledge or records 
        of the person furnishing it and consists of--
                  (A) an evaluation of the work performance, 
                ability, aptitude, or general qualifications of 
                such individual; or
                  (B) an evaluation of the character, loyalty, 
                or suitability of such individual;
          * * * * * * *

[3303. Political recommendations

    [(a) For the purposes of this section--
          [(1) ``agency'' means--
                  [(A) an Executive agency; and
                  [(B) an agency in the legislative branch with 
                positions in the competitive service;
          [(2) ``applicant'' means an individual who has 
        applied for appointment to be an employee;
          [(3) ``employee'' means an employee of an agency who 
        is--
                  [(A) in the competitive service;
                  [(B) a career appointee in the Senior 
                Executive Service or an employee under a 
                similar appointment in a similar executive 
                service; or
                  [(C) in the excepted service other than--
                          [(i) an employee who is appointed by 
                        the President; or
                          [(ii) an employee whose position has 
                        been determined to be of a 
                        confidential, policy-determining, 
                        policy-making, or policy-advocating 
                        character; and
          [(4) ``personnel action'' means any action described 
        under clauses (i) through (x) of section 2302(a)(2)(A).
    [(b) Except as provided under subsection (f), each 
personnel action with respect to an employee or applicant shall 
be taken without regard to any recommendation or statement, 
oral or written, with respect to any employee or applicant who 
requests or is under consideration for such personnel action, 
made by--
          [(1) any Member of Congress or congressional 
        employee;
          [(2) any elected official of the government of any 
        State (including the District of Columbia and the 
        Commonwealth of Puerto Rico), county, city, or other 
        subdivision thereof;
          [(3) any official of a political party; or
          [(4) any other individual or organization making such 
        recommendation or statement on the basis of the party 
        affiliation of the employee or applicant.
    [(c) Except as provided under subsection (f), a person or 
organization referred to under subsection (b) (1) through (4) 
is prohibited from making or transmitting to any officer or 
employee of an agency, any recommendation or statement, oral or 
written, with respect to any employee or applicant who requests 
or is under consideration for any personnel action in such 
agency. Except as provided under subsection (f), the agency, or 
any officer or employee of the agency--
          [(1) shall not solicit, request, consider, or accept 
        any such recommendation or statement; and
          [(2) shall return any such written recommendation or 
        statement, appropriately marked as in violation of this 
        section, to the person or organization transmitting the 
        same.
    [(d) Except as provided under subsection (f), an employee 
of applicant who requests or is under consideration for a 
personnel action in an agency is prohibited from requesting or 
soliciting from a person or organization referred to under 
subsection (b) (1) through (4) a recommendation or statement.
    [(e) Under regulations prescribed by the Office of 
Personnel Management, the head of each agency shall ensure that 
employees and applicants are given notice of the provisions of 
this section.
    [(f) An agency, or any authorized officer or employee of an 
agency, may solicit, accept, and consider, and any other 
individual or organization may furnish or transmit to the 
agency or such authorized officer or employee, any statement 
with respect to an employee or applicant who requests or is 
under consideration for a personnel action, if--
          [(1) the statement is furnished pursuant to a request 
        or requirement of the agency and consists solely of an 
        evaluation of the work performance, ability, aptitude, 
        and general qualifications of the employee or 
        applicant;
          [(2) the statement related solely to the character 
        and residence of the employee or applicant;
          [(3) the statement is furnished pursuant to a request 
        made by an authorized representative of the Government 
        of the United States solely in order to determine 
        whether the employee or applicant meets suitability or 
        security standards;
          [(4) the statement is furnished by a former employer 
        of the employee or applicant pursuant to a request of 
        an agency, and consists solely of an evaluation of the 
        work performance, ability, aptitude, and general 
        qualifications of such employee or applicant during 
        employment with such former employer; or
          [(5) the statement is furnished pursuant to a 
        provision of law or regulation authorizing 
        consideration of such statement with respect to a 
        specific position or category of positions.
    [(g) An agency shall take any action it determines 
necessary and proper under subchapter I or II of chapter 75 to 
enforce the provisions of this section.
    [(h) The provisions of this section shall not affect the 
right of any employee to petition Congress as authorized by 
section 7211.]

3303. Competitive service; recommendations of Senators or 
                    Representatives

    An individual concerned in examining an applicant for or 
appointing him in the competitive service may not receive or 
consider a recommendation of the applicant by a Senator or 
Representative, except as to the character or residence of the 
applicant.

                                
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