[House Report 117-455]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-455
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PREVENTING A PATRONAGE SYSTEM ACT OF 2021
_______
September 2, 2022.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mrs. Carolyn B. Maloney of New York, from the Committee on Oversight
and Reform, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 302]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Reform, to whom was referred
the bill (H.R. 302) to impose limits on excepting competitive
service positions from the competitive service, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
CONTENTS
Page
Summary and Purpose of Legislation............................... 2
Background and Need for Legislation.............................. 2
Section-by-Section Analysis...................................... 3
Legislative History.............................................. 4
Committee Consideration.......................................... 4
Roll Call Votes.................................................. 4
List of Related Committee Hearings............................... 7
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 7
Statement of General Performance Goals and Objectives............ 7
Application of Law to the Legislative Branch..................... 7
Duplication of Federal Programs.................................. 7
Disclosure of Directed Rule Makings.............................. 7
Federal Advisory Committee Act Statement......................... 8
Unfunded Mandates Reform Act Statement........................... 8
Earmark Identification........................................... 8
Committee Cost Estimate.......................................... 8
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 8
Minority Views................................................... 10
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preventing a Patronage System Act of
2021'' or the ``PPSA Act of 2021''.
SEC. 2. LIMITATIONS ON EXCEPTION OF COMPETITIVE SERVICE POSITIONS.
(a) In General.--No position in the competitive service (as defined
under section 2102 of title 5, United States Code) may be excepted from
the competitive service unless such position is placed--
(1) in any of the schedules A through E as described in
section 6.2 of title 5, Code of Federal Regulations, as in
effect on September 30, 2020; and
(2) under the terms and conditions under part 6 of such title
as in effect on such date.
(b) Subsequent Transfers.--No position in the excepted service (as
defined under section 2103 of title 5, United States Code) may be
placed in any schedule other than a schedule described in subsection
(a)(1).
SUMMARY AND PURPOSE OF LEGISLATION
The Preventing a Patronage System Act would protect civil
service rights and prevent federal employees from losing
statutory and job protections. The bill would prevent any
position in the competitive service from being reclassified to
an excepted service schedule created after September 30, 2020.
The bill would also limit federal employee reclassifications to
the five excepted service schedules in use prior to fiscal year
2021.
The bill would protect the civil service system from
political manipulation by codifying which federal employees can
be hired or removed from their positions without due process.
BACKGROUND AND NEED FOR LEGISLATION
The civilian federal workforce is comprised of three types
of service: the Competitive Service, the Excepted Service, and
the Senior Executive Service.\1\ Most civil service positions
exist within the Competitive Service, which requires applicants
to undergo a written test or other evaluation to demonstrate
that they possess the acumen to perform their duties
successfully before they can be hired into that position.\2\
Civil servants in the Competitive Service cannot be fired
without due process, and are in this way protected from
political interference within the executive branch.
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\1\Office of Personnel Management, Policy, Data, Oversight (online
at www.opm.gov/policy-data-oversight/hiring-information/competitive-
hiring/) (accessed July 27, 2022).
\2\Id.
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Congress abolished the ``spoils system'' and created a
merit-based civil service with the enactment of the Civil
Service Act of 1883.\3\ Also known as the Pendleton Act, the
Civil Service Act of 1883 established the Civil Service
Commission and created the Competitive Service and two excepted
service categories, called schedules.
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\3\National Archives and Records Administration, Pendleton Act
(1883) (online at www.archives.gov/milestone-documents/pendleton-act)
(accessed July 27, 2022).
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Historically, excepted service categories were created for
positions that required unique hiring or operating rules, for
example positions of a short-term political nature or positions
in remote areas or areas with a hiring need so great that
competitive civil service rules could not apply.\4\ In these
cases, individuals hired into positions classified in the
excepted service were not vested with certain civil service
appeal rights because they had not undergone the required
competitive hiring process.
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\4\Office of Personnel Management, Excepted Service Hiring
Authorities: Their Use and Effectiveness in the Executive Branch (July
2018) (online at www.opm.gov/policy-data-oversight/hiring-information/
excepted-service/excepted-service-study-report.pdf).
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In 1956, at the direction of President Eisenhower, the
lines between the competitive service and excepted service were
clarified and redrawn, resulting in the creation of Schedules
A, B, and C of Title 5 of the Code of Federal Regulations,
Section 6.2.\5\ In the past ten years, two additional
Schedules, D and E, were created--to open pathways to attract
young talent and to except Administrative Law Judges from the
Competitive Service, respectively.\6\
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\5\Id.
\6\Exec. Order No. 13562, 75 Fed. Reg. 82583 (Dec. 27, 2010); Exec.
Order No. 13843, 83 Fed. Reg. 32755 (July 10, 2018).
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In 2020, President Trump issued a far-reaching executive
order to create a new excepted service Schedule F, which would
have removed statutory appeal rights from many federal
employees whose jobs are of a ``confidential, policy-
determining, policy-making, or policy-advocating
character.''\7\ Employees in this new Schedule F could have
been subject to removal for partisan political reasons, instead
of merit or job performance. The creation of Schedule F would
have countered decades of congressional actions to support an
independent, professional civil service.
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\7\Exec. Order No. 13957, 85 Fed. Reg. 67631 (Oct. 21, 2020).
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President Trump's creation of a new Schedule F created an
exception to the competitive civil service that was so large
that the personnel of nearly entire agencies could have been
redesignated as excepted employees. In fact, in the waning days
of the Trump Administration, the Office of Management and
Budget announced that 88% of their workforce would be eligible
for reclassification under Schedule F.\8\
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\8\Letter from Chairman Gerald E. Connolly, House Subcommittee on
Government Operations, to Chairwoman Nita M. Lowey and Ranking Member
Kay Granger, House Committee on Appropriations, and Chairman Richard
Shelby and Vice Chairman Patrick Leahy, Senate Committee on
Appropriations (Nov. 24, 2020) (online at https://connolly.house.gov/
uploadedfiles/joint_letter_to_senate_and_house_approps_re_sched_f.pdf).
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President Biden overturned Executive Order 13957.\9\
However, should a future president decide to attack the
independence and integrity of the competitive civil service, he
or she would only need to rescind President Biden's order and
reinstate Schedule F.
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\9\Exec. Order No. 14003, 86 Fed. Reg. 7231 (Jan. 22, 2021).
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To protect the non-partisan federal civil service, Congress
should codify protections to prevent federal workers from
manipulation by executive branch fiat. On January 13, 2021,
Rep. Gerald E. Connolly, Chairman of the Subcommittee on
Government Operations, and Rep. Brian Fitzpatrick introduced
legislation that would prevent future administrations from
manipulating the civil service, and ensuring all federal
employees hired in the Competitive Service retain due process
protections. This bill, the Preventing a Patronage System Act,
limits the future exceptions to the civil service to existing
schedules A through E, or new schedules that receive explicit
statutory authorization.\10\
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\10\H.R. 302.
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SECTION-BY-SECTION ANALYSIS
Section 1. Short title
The short title is the ``Preventing a Patronage System Act
of 2021.''
Sec. 2. Limitations on exception of competitive service positions
Subsection (a) of this bill limits the positions that can
be moved from the competitive service into the excepted service
to those positions that were in effect in the Code of Federal
Regulations prior to September 30, 2020. The subsection
prohibits any changes to the conditions and terms that defined
the excepted service positions that existed prior to that date.
Subsection (b) of the bill prohibits the transfer of anyone
in the qualifying excepted service positions into a different
schedule--other than the excepted service schedules that
existed prior to September 30, 2020.
LEGISLATIVE HISTORY
Chairman Gerald E. Connolly, along with Rep. Brian K.
Fitzpatrick, introduced H.R. 302, the Preventing a Patronage
System Act, on January 13, 2021. The Committee considered the
bill at a business meeting on May 25, 2021, and ordered the
bill favorably reported. Substantially identical measures have
passed the House on two occasions--as Title XXII of H.R. 5314,
the Protecting our Democracy Act, and as an amendment to H.R.
7900, the National Defense Authorization Act for Fiscal Year
2023.
The Subcommittee on Government Operations has held three
hearings that informed this bill. On, February 23, 2021, the
Subcommittee held a hearing titled ``Revitalizing the Federal
Workforce'' with expert witnesses--including Everett Kelley,
President of the American Federation of Government Employees;
Janice Lachance, former Director of the Office of Personnel
Management; and Anne Joseph O'Connell, Professor of Law,
Stanford School of Law--who warned of the harms Schedule F
could cause.
On December 1, 2021, the Subcommittee held a hearing on
``the Future of Federal Work'' at which the minority witness,
Andrew Biggs, Senior Fellow, American Enterprise Institute;
stated:
In general, private sector employment is at-will,
meaning you don't have to give a reason to dismiss
somebody. The Federal Government is the opposite of
that. And partly that arose for reasons you don't want
a politicized work force, and that goes back 100 years.
You don't want patronage appointments, things like
that.
On July 21, 2022, the Subcommittee held an additional
hearing on the Future of Federal Work.
COMMITTEE CONSIDERATION
On May 25, 2021, the Committee considered H.R. 302 at a
business meeting.
ROLL CALL VOTES
There were two roll call votes during consideration of H.R.
302 on the following measures:
The amendment to the ANS offered by Rep. Hice was not
adopted.
H.R. 302, as amended, was favorably reported to the House.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
EXPLANATION OF AMENDMENTS
During Committee consideration of the bill, Chairwoman
Carolyn B. Maloney (D-NY), Chairwoman of the Committee, offered
an amendment in the nature of a substitute (ANS) that modified
the bill to make technical changes.
Rep. Jody Hice offered an amendment to the ANS that struck
the provisions of the bill and codified E.O. 13957.
LIST OF RELATED COMMITTEE HEARINGS
In accordance with section 103(i) of H. Res. 6, the
Committee held a hearing on February 23, 2021, to consider the
proposals set forth in the Preventing a Patronage System Act
along, with other legislative proposals to improve the
operations and engagement of the federal workforce.
In accordance with section 103(i) of H. Res. 6, the
Committee held a hearing on December 1, 2021, on ``the Future
of Federal Work.''
In accordance with section 103(i) of H. Res. 6, the
Committee held a hearing on July 21, 2022, to consider the
proposals set forth in the Preventing a Patronage System Act,
along with other legislative proposals to improve how federal
employees serve the nation.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF
THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee finds that preservation of a
professional, non-partisan, civil service is essential to the
functioning of the federal government.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives of this bill are to ensure that the
federal workforce is comprised of nonpartisan experts who are
loyal to the Constitution.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
The bill does not relate to terms and conditions of
employment or access to public services or accommodations.
DUPLICATION OF FEDERAL PROGRAMS
In accordance with clause 3(c)(5) of rule XIII, no
provision of this bill establishes or reauthorizes a program of
the federal government known to be duplicative of another
federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
DISCLOSURE OF DIRECTED RULE MAKINGS
This bill does not direct the completion of any specific
rule makings within the meaning of section 551 of title 5,
United States Code.
FEDERAL ADVISORY COMMITTEE ACT STATEMENT
The legislation does not establish or authorize the
establishment of an advisory committee within the definition of
section 5(b) of the appendix to title 5, United States Code.
UNFUNDED MANDATES REFORM ACT STATEMENT
Pursuant to section 423 of the Congressional Budget Act of
1974, the Committee has included a letter received from the
Congressional Budget Office below.
EARMARK IDENTIFICATION
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
COMMITTEE COST ESTIMATE
Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
NEW BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE
COST ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 23, 2021.
Hon. Carolyn B. Maloney,
Chairwoman, Committee on Oversight and Reform,
House of Representatives, Washington, DC.
Dear Madam Chairwoman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 302, the PPSA Act
of 2021.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 302 would limit the conditions under which a position
may be reclassified from the federal competitive service to
federal excepted service. Federal government civilian positions
are generally part of the competitive civil service and
applicants for those positions are evaluated through a
competitive hiring process.\1\ Under current law, people may
instead be appointed to excepted service positions within the
federal government under limited circumstances, such as to fill
specialized jobs.
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\1\See Office of Personnel Management, ``Policy, Data, Oversight:
Hiring Information'' (accessed June 21, 2021), https://go.usa.gov/
x6mHR.
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CBO is unaware of any current federal civilian position
reclassification activities that would be prohibited under the
bill. On that basis, CBO estimates that implementing the bill
would have no significant effect on the federal budget.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Director of Budget Analysis.
MINORITY VIEWS
Committee Republicans oppose H.R. 302. This legislation
rashly eliminates the ability of future presidents to improve
the efficiency and effectiveness of the civil service by
establishing new categories of excepted service positions. This
bill is not justified by either recent experience or by the
original purposes of the merit-based civil service. On the
contrary, experience during the Trump Administration shows that
the creation of new excepted service schedules can be critical
to ensure civil servants impartially and dutifully serve all
presidential administrations. That is the very purpose of the
merit-based civil service.
I. THE TRUMP ADMINISTRATION'S EXPERIENCE DEMONSTRATES THE NECESSITY OF
PRESERVING PRESIDENTIAL FLEXIBILITY TO ENSURE THE MERIT-BASED CIVIL
SERVICE IMPARTIALLY SUPPORTS ANY AND ALL PRESIDENTIAL ADMINISTRATIONS
The U.S. Constitution was written to ensure a government
``of the people, by the people, for the people.''\1\ Central to
that design is the President's authority to implement the
policy mandate he or she receives from the voters in each
presidential election.
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\1\President Abraham Lincoln, Gettysburg Address (Nov. 19, 1863).
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In our modern American government, the President relies on
both his or her political appointees and vast amounts of career
civil servants in policy-related roles to bring the voters'
policy mandate to life across large numbers of federal
agencies. The President, along with his or her appointees, are
to be the decisionmakers, accountable to the voters and
Congress. Career civil servants are to provide the President--
and his or her administration--with impartial expertise to best
inform and construct their ultimate executive policy decisions.
Many, if not most, career civil servants in policy-related
roles appear to be faithful employees who deliver that
impartial expertise to the benefit of successive presidents of
differing parties and, above all, to the American people. Yet,
in recent years--and particularly during the Trump
Administration--increasing numbers of civil servants in policy-
related roles have resisted the policy and political direction
of the duly elected President.\2\ As Professor Jennifer Nou of
the University of Chicago Law School recounts, civil servants
during the Trump Administration ``reportedly created support
groups to oppose the Trump Administration and signed up for
workshops on how to resist.''\3\ While acknowledging such
``resistance'' is not necessarily new, she explains that:
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\2\See, e.g., Jennifer Nou, Civil Servant Disobedience, Chicago-
Kent Law Rev., vol 94, issue 2, 349 (May 1, 2019) (``Civil Servant
Disobedience''); James Sherk, Tales from the Swamp: How Federal
Bureaucrats Resisted President Trump, America First Pol. Inst. (Feb. 1,
2022) (Tales from the Swamp).
\3\Civil Service Disobedience at 350.
What seems potentially novel in the Trump
Administration is the extent to which that resistance
is openly defiant. Instead of being covert or channeled
through official mechanisms, a greater degree of
dissent seems to have spilled out into the open by
civil servants identified as such. Bureaucrats
increasingly seem to be opposing the President in their
official capacity. And they are doing so despite strong
agency norms to the contrary.\4\
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\4\Id. at 351.
This is unacceptable in a government that is intended to be
responsible to the voters--not the whims or ideological
leanings of career civil servants. In opposing a substantially
similar version of H.R. 302 which passed the House as an
amendment proposed by Rep. Gerry Connolly (D-VA) to H.R. 7900,
the Fiscal Year 2023 National Defense Authorization Act, Rep.
Jody Hice (R-GA) highlighted this point on behalf of House
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Republicans in his remarks on the House floor:
The bottom line is that the voters elect the
President, and then the President nominates
administration officials to implement the policy that
the voters have elected the President to implement.
When career officials resist implementing those
mandates, then they are, in effect, resisting the
voters.\5\
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\5\168 Cong. Rec. H6469 (daily ed. July 13, 2022) (statement of
Rep. Hice).
Each presidential election gives a president four years to
implement the voters' policy mandate. Policymaking can be
notoriously slow, particularly when pursued through agency
rulemaking.\6\ If the President is unable to reign in civil-
servant defiance through prompt discipline or removal, the
President's term in office could easily be wasted away by the
refusal of civil servants in policy-related roles to help
implement the voters' mandate. That would be utterly contrary
to America's system of elective governance.
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\6\See, e.g., Maeve P. Carey, The Federal Rulemaking Process: An
Overview, CONGRESSIONAL RESEARCH SERVICE (June 17, 2013).
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It is in the excepted service, not the competitive service,
that the President and his or her political appointees have
access to swifter disciplinary and removal procedures.
President Trump thus rightly responded to the problem of
insubordinate career employees in policy-making roles when he
issued Executive Order 13957, ``Creating Schedule F in the
Civil Service.''\7\ Contrary to Congressional Democrat's
mischaracterization of it, this order did not reestablish a
patronage system--far from it. The order did not touch the vast
majority of the civil service, nor did it affect the Senior
Executive Service. It simply ensured that, through the
availability of better disciplinary and removal procedures
against insubordinate policy-related officials, the President
could guarantee that civil servants made available to him the
professional and technical policy-related expertise they were
placed in their positions to give.
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\7\85 Fed. Reg. 67631 (Oct. 26, 2020).
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The Schedule F executive order made it easier to take
action against Schedule F employees, up to and including
termination, for performance issues and denied Schedule F
employees the ability to appeal disciplinary procedures and
firings. That was consistent with the merit-system's goal of
ensuring that any and all presidents have available to them a
corps of impartial expert assistants in the career service who
will help them to implement their policy mandate.
The Schedule F order's opponents claim it constituted a
return to a 19th-century-style patronage system. However, the
order's terms did not represent that. Rather, the order
maintained the merit system while instituting an appropriate
defense against the entrenchment of a biased corps of civil-
service policy bureaucrats who could easily resist the
President's--and the voters'--will. We must emphasize--the
merit-based system was not intended to create a civil service
independent of, and unresponsive to, presidential authority. It
was intended to create an impartial civil service.
II. H.R. 302 IS UNNECESSARY AND WOULD NEEDLESSLY THWART THE ABILITY OF
FUTURE PRESIDENTS TO CREATE NEW SCHEDULES OF EXCEPTED SERVICE POSITIONS
WHEN APPROPRIATE
Putting aside the merits of President Trump's Schedule F
order, this bill is no longer needed, represents unnecessary
legislating, and it would therefore be irresponsible for the
U.S. House to pass it. President Biden rescinded E.O. 13957
immediately upon taking office.\8\ Yet the bill not only would
ban the reinstitution of President Trump's Schedule F, it would
preclude any future president from instituting any new excepted
service schedule. In other words, regardless of what
circumstances future duly elected presidents may encounter, and
what additions to the excepted service might be needed to meet
them, this bill, out of spite for President Trump's entirely
appropriate executive action, would preclude future presidents
from exercising their executive prerogatives. We cannot support
this reckless legislative overreach and attempt to bind the
flexibility of future presidents' actions to meet our country's
needs.
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\8\See Executive Order 14003, Protecting the Federal Workforce, 86
Fed. Reg. 7231 (January 27, 2020).
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III. CONCLUSION
Committee Republicans oppose H.R. 302.
James Comer,
Ranking Member, Committee on
Oversight and Reform.
[all]