```

[House Report 115-439]
[From the U.S. Government Publishing Office]

115th Congress    }                                     {      Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                     {     115-439

======================================================================

 
              POLITICAL APPOINTEE BURROWING PREVENTION ACT

                                _______
                                

December 5, 2017.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Gowdy, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 1132]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 1132) to amend title 5, United 
States Code, to provide for a 2-year prohibition on employment 
in a career civil service position for any former political 
appointee, and for other purposes, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     3
Section-by-Section...............................................     6
Explanation of Amendments........................................     6
Committee Consideration..........................................     7
Roll Call Votes..................................................     7
Application of Law to the Legislative Branch.....................     7
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     7
Statement of General Performance Goals and Objectives............     7
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     8
Federal Advisory Committee Act...................................     8
Unfunded Mandates Statement......................................     8
Earmark Identification...........................................     8
Committee Estimate...............................................     8
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     8
Changes in Existing Law Made by the Bill, as Reported............     9
Additional Views.................................................    12

    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 ``Political Appointee Burrowing 
Prevention Act''.

SEC. 2. LIMITATION ON EMPLOYMENT OF POLITICAL APPOINTEES IN CAREER 
                    CIVIL SERVICE POSITIONS.

  (a) In General.--Subchapter I of chapter 31 of title 5, United States 
Code, is amended by adding at the end the following:

``Sec. 3115. Employment of political appointees

  ``(a) Appointment Approval Required.--
          ``(1) In general.--An individual described in paragraph (4) 
        may not be appointed to a career position without receiving 
        prior written approval from the Director of the Office of 
        Personnel Management with respect to such appointment, 
        consistent with the requirements of this subsection.
          ``(2) Agency appointment request.--The head of an agency 
        shall submit a request to the Director to approve the 
        appointment of any individual described in paragraph (4) to a 
        career position. Any such request shall include certification 
        by the agency head to the Director that the appointment is 
        critical for the agency to meet its mission.
          ``(3) OPM review.--The Director shall review any request 
        received pursuant to paragraph (2) and--
                  ``(A) with respect to any such request, may--
                          ``(i) approve the request if the Director 
                        determines that the appointment process with 
                        respect to the request was fair, open, and free 
                        from political influence; or
                          ``(ii) deny the request if--
                                  ``(I) the Director fails to make the 
                                determination under clause (i); or
                                  ``(II) determines that the agency 
                                certification under paragraph (2) is 
                                unreasonable; and
                  ``(B) with respect to a request approved under 
                subparagraph (A)(i), shall, not less than five days 
                before the date of approval, provide to the Committee 
                on Oversight and Government Reform of the House of 
                Representatives and the Committee on Homeland Security 
                and Governmental Affairs of the Senate the agency 
                certification and the Director's rationale for 
                concurring with that certification.
          ``(4) Covered individuals.--An individual described in this 
        paragraph is--
                  ``(A) a political appointee;
                  ``(B) a former political appointee who held any 
                political position during the five-year period before 
                the date of the request described in paragraph (2); or
                  ``(C) at the discretion of the Director, a former 
                political appointee who held any political position 
                before the five-year period described in subparagraph 
                (B).
  ``(b) Restriction on Appointment.--
          ``(1) In general.--Notwithstanding any other law, rule, or 
        regulation, during the 2-year period following the date a 
        political appointee separates from a political position, such 
        appointee may not be appointed to any career position in the 
        civil service.
          ``(2) Exception.--Paragraph (1) shall not apply to a 
        political appointee who has not personally and substantially 
        participated in any particular matter while employed in a 
        political position.
  ``(c) Application.--Nothing in this section shall be construed to 
restrict the appointment of an individual who is--
          ``(1) entitled to reinstatement under section 3593(b); or
          ``(2) eligible for reinstatement under section 3593(a).
  ``(d) Definitions.--In this section--
          ``(1) the term `agency' has the meaning given the term 
        `Executive agency' in section 105;
          ``(2) the term `political appointee' means an individual 
        serving in an appointment of any duration to a political 
        position;
          ``(3) the term `political position' means--
                  ``(A) a position which has been excepted from the 
                competitive service by reason of its confidential, 
                policy-determining, policy-making, or policy-advocating 
                character;
                  ``(B) a position described under sections 5312 
                through 5316 (relating to the Executive Schedule); and
                  ``(C) a general position in the Senior Executive 
                Service during such time as it is filled by--
                          ``(i) a noncareer appointee, as defined in 
                        paragraph (7) of section 3132(a); or
                          ``(ii) a limited term appointee or limited 
                        emergency appointee, as defined in paragraphs 
                        (5) and (6) of section 3132(a), who is serving 
                        under a political appointment.
          ``(4) the term `career position' means--
                  ``(A) a position in the competitive service filled by 
                career or career-conditional appointment;
                  ``(B) a position in the excepted service filled by an 
                appointment of equivalent tenure as a position 
                described in subparagraph (A);
                  ``(C) a career reserved position, as defined in 
                paragraph (8) of section 3132(a), in the Senior 
                Executive Service; or
                  ``(D) a general position in the Senior Executive 
                Service when filled by a career appointee, as defined 
                in section 3132(a)(4);
          ``(5) the term `participated' means an action taken as an 
        officer or employee through decision, approval, disapproval, 
        recommendation, the rendering of advice, investigation, or 
        other such action; and
          ``(6) the term `particular matter' includes any 
        investigation, application, request for a ruling or 
        determination, rulemaking, contract, controversy, claim, 
        charge, accusation, arrest, or judicial or other proceeding.''.
  (b) Clerical Amendment.--The table of sections of chapter 31 of title 
5, United States Code, is amended by adding after the item relating to 
section 3114 the following:

``3115. Employment of political appointees.''.

  (c) Application.--
          (1) Appointment requests.--Section 3115(a) of title 5, United 
        States Code, as added by subsection (a), shall apply to any 
        appointment or request for appointment described in such 
        section submitted to the Office of Personnel Management after 
        the date of enactment of this Act.
          (2) Limitation on appointments.--Section 3115(b) of title 5, 
        United States Code, as added by subsection (a), shall apply to 
        any individual who separates from a political position (as that 
        term is defined in section 3115(c)(2) of such title, as added 
        by such subsection) after the date of enactment of this Act.
  (d) Regulations Required.--The Director of the Office of Personnel 
Management shall issue regulations necessary to carry out this Act, 
including regulations to define the term ``personally and substantially 
participated'' as such term is used in section 3115(b)(2) of title 5, 
United States Code, as added by subsection (a).

                     Committee Statement and Views

                          PURPOSE AND SUMMARY

    The Political Appointee Burrowing Prevention Act, as 
amended, codifies current Office of Personnel Management review 
requirements for political appointees who intend to convert to 
career positions in the Federal civil service. The bill also 
requires agencies to make a business case for the conversion. 
Finally, the bill prohibits a political appointee from 
converting to a career position within two years following the 
appointee's service in a political position.

                  BACKGROUND AND NEED FOR LEGISLATION

    Each presidential administration appoints non-career 
political employees in agencies to help advance the 
administration's policy goals. These political appointees do 
not receive the job protections of career Federal positions in 
the competitive, excepted, and Senior Executive Service because 
their appointments are meant to be temporary. At the end of an 
administration, most political appointees leave Federal service 
to allow the incoming administration to select its own 
appointees.
    In contrast to political positions, career positions in the 
Federal government are designed to be merit-based to ensure the 
government has a professional, non-political workforce. Career 
employees should be hired based on their qualifications and 
promoted based on performance.
    Conversion of political appointees to career positions, 
also known as ``burrowing,'' can upset the merit-based system. 
The Government Accountability Office (GAO) reported, 
``Sometimes, circumstances surrounding conversions [of 
political appointees] can raise questions as to whether the 
individuals selected experienced favoritism or enjoyed an 
unfair advantage in the selection process. Any appearance of 
this could compromise the merit system's integrity.''\1\ 
Questionable conversions take several forms. ``Conversions in 
place'' occur when a political appointee converts to a career 
position that has similar, if not identical, roles and 
responsibilities, as well as the same supervisors as the former 
political position.\2\ In at least one case, the political 
appointee who was converting helped draft the job description 
for a newly-created career service position before the vacancy 
announcement was issued, which confers an obvious advantage on 
that political appointee during the hiring process.\3\ The 
timing of a conversion to the career excepted service raises 
concerns when the conversion occurs towards the end of an 
administration, before a new President is inaugurated.\4\
---------------------------------------------------------------------------
    \1\Gov't Accountability Office, GAO-17-674, Personnel Practices: 
Actions Needed to Improve Documentation of OPM Decisions on Conversion 
Requests 1 (2017) [hereinafter ``2017 GAO Report''].
    \2\Gov't Accountability Office, GAO-02-326, Personnel Practices: 
Career and Other Appointments of Former Political Appointees, October 
1998-April 2001 2-3 (2002) [hereinafter ``2002 GAO Report''].
    \3\Id.
    \4\Id.
---------------------------------------------------------------------------
    The number of political conversions is currently lower than 
in years past. From October 1998 to April 2001, 111 political 
conversions took place at agencies reviewed by GAO.\5\ Between 
May 2001 and April 2005, there were 144 political 
conversions.\6\ Between May 2005 and May 2009, there were 143 
political conversions.\7\ Most recently, from January 2010 to 
March 2016, 69 conversions took place.\8\
---------------------------------------------------------------------------
    \5\2002 GAO Report, supra note 2, at 2.
    \6\Gov't Accountability Office, GAO-06-381, Personnel Practices: 
Conversions of Employees from Noncareer to Career Positions May 2001-
April 2005 4 (2006).
    \7\Gov't Accountability Office, GAO-10-356R, Personnel Practices: 
Conversions of Selected Employees from Political to Career Positions at 
Departments and Selected Agencies 1 (2010).
    \8\2017 GAO Report, supra note 1, at Cover Page.
---------------------------------------------------------------------------
    The decrease in political conversions may be linked to 
aggressive oversight. The Office of Personnel Management (OPM) 
has general oversight authority under Section 1104(b)(2) of 
title 5, United States Code, and section 5.2 of title 5, Code 
of Federal Regulations, to ensure the preservation of a merit-
based civil service. An OPM memorandum dated November 5, 2009, 
expanded OPM's role in reviewing political conversions to 
competitive or non-political excepted service positions. 
Previously, pre-appointment reviews were only required for 
competitive service positions during a presidential election 
year.\9\ The memorandum allowed OPM oversight at all times and 
expanded the oversight requirements to non-political excepted 
service positions.\10\ More recently, P.L. 114-136, the Edward 
``Ted'' Kaufman and Michael Leavitt Presidential Transitions 
Improvements Act of 2015, further increased OPM's role in 
overseeing political conversions. The law required OPM to 
report to Congress about the frequency of agency requests to 
convert current and former political appointees to non-
political civil service positions, including whether OPM 
approved or denied the request.\11\ OPM's pre-appointment 
reviews help provide a check on the conversion of political 
appointees to other positions. The reports provided by OPM to 
Congress on political conversions help ensure Congress stays 
abreast of potential threats to the integrity of the civil 
service.
---------------------------------------------------------------------------
    \9\Prior to the 2009 memorandum, OPM did review all requests to 
convert to career positions in the Senior Executive Service at any 
time.
    \10\Memorandum from John Berry, Dir., Office of Personnel Mgmt., to 
Heads of Exec. Dep'ts and Agencies, Political Appointees and Career 
Civil Service Positions (Nov. 5, 2009).
    \11\P.L. 114-136.
---------------------------------------------------------------------------
    Congress has also engaged in its own oversight of political 
conversions. For example, former Chairman of the Committee on 
Oversight and Government Reform Representative Darrell Issa (R-
CA), sent a letter on September 22, 2014, requesting OPM 
documents relating to political conversions.\12\ On January 10, 
2017, former Chairman Jason Chaffetz (R-UT) sent a letter to 18 
agencies requesting documents relating to conversions of non-
career political staff to career positions.\13\ On March 10, 
2017, former Chairman Chaffetz and the Chairman of the 
Subcommittee on Government Operations, Representative Mark 
Meadows (R-NC), sent a letter to OPM questioning the conversion 
of a former OPM political employee to a career position at 
another agency.\14\
---------------------------------------------------------------------------
    \12\Letter from Darrell Issa, Chairman, H. Comm. on Oversight and 
Gov't Reform, to Katherine Archuleta, Dir., Office of Personnel Mgmt. 
(Sept. 22, 2014).
    \13\See, e.g., Letter from Jason Chaffetz, Chairman, H. Comm. on 
Oversight and Gov't Reform, to Jeh Johnson, Sec'y, Dep't of Homeland 
Security (January 10, 2017).
    \14\Letter from Jason Chaffetz, Chairman, H. Comm. on Oversight and 
Gov't Reform, and Mark Meadows, Chairman, Subcomm. on Gov't Operations, 
to Kathleen McGettigan, Acting Director, Office of Personnel Mgmt. 
(March 10, 2017).
---------------------------------------------------------------------------
    While political conversions have decreased over time, OPM 
approved 78 requests for conversion between 2010 and 2016.\15\ 
Of these, 69 political appointees ultimately converted to 
career positions.\16\ Troublingly, OPM's case files for 55 of 
the conversions did not provide enough information for GAO to 
initially support OPM's determination that the conversions 
occurred absent political influence. In addition, seven 
conversions were not pre-approved by OPM despite the 
requirement for agencies to get permission before doing so.\17\ 
It is critical the American public can trust conversions are 
the result of fair and open competition and are made free of 
political influence.
---------------------------------------------------------------------------
    \15\2017 GAO Report, supra note 1, at Cover Page.
    \16\Id.
    \17\Id.
---------------------------------------------------------------------------
    The Political Appointee Burrowing Prevention Act of 2017 
addresses these shortcomings by putting existing OPM political 
conversion procedures in law, and expanding upon them. The bill 
improves upon existing procedures by requiring agencies provide 
a certification to OPM that the conversion is critical for the 
agency to meet its mission. This requirement increases OPM's 
review standard and will force agencies to use political 
conversions as a measure of last resort. Because the 
certification must also be given to Congress prior to 
conversion approval, Congress can track conversions in real 
time, and OPM will have to ensure it has the proper information 
necessary to answer any questions that may arise regarding any 
particular conversion.
    Finally, the bill provides a cooling-off period of two 
years wherein political appointees cannot convert to career 
positions. This two-year period will start as soon as the 
appointee leaves the political position. With this statutory 
restriction in place, previously identified problems of 
unqualified political appointees burrowing into the merit-based 
civil service will hopefully become a thing of the past.

                          LEGISLATIVE HISTORY

    On February 16, 2017, Representative Ken Buck (R-CO) 
introduced H.R. 1132, the Political Appointee Burrowing 
Prevention Act, with Representatives Ted Lieu (D-CA) and Jared 
Polis (D-CO). H.R. 1132 was referred to the Committee on 
Oversight and Government Reform. The Committee considered H.R. 
1132 at a business meeting on November 2, 2017 and ordered the 
bill favorably reported, as amended, by voice vote.

                           Section-by-Section

Section 1. Short title

    Section 1 provides the short title of the bill.

Sec. 2. Limitation on employment of political appointees in career 
        civil service positions

    Section 2 of the bill amends title 5, United States Code, 
by adding a new section 3115, entitled ``Employment of 
Political Appointees.'' The new section prohibits a current 
political appointee or certain former political appointees from 
being appointed to a career civil service position without 
written approval by the Director of the Office of Personnel 
Management. In order to effect a conversion, the head of the 
agency seeking to appoint the individual must submit a request 
to the Director that includes a certification the appointment 
is critical for the agency to meet its mission.
    The new section also prohibits political appointees from 
appointment to a career civil service position for two years 
after the end of the political appointment, unless that person 
has not personally and substantially participated in any 
particular matter while employed in a political position. There 
are also exceptions to the ban for individuals entitled to 
reinstatement in the Senior Executive Service under existing 
law.
    This section specifies amendments made by this bill shall 
apply to appointments and separations conducted after the 
bill's date of enactment.
    Finally, this section authorizes the Director of the Office 
of Personnel Management to issue regulations necessary to carry 
out the bill.

                       Explanation of Amendments

    During Committee consideration of the bill, Representative 
Mark Meadows (R-NC) offered an amendment in the nature of a 
substitute (ANS) to require OPM review any conversion request 
of political appointees or certain former political appointees 
to career positions. OPM is required to certify the appointment 
was fair, open, and free from political influence. If OPM 
approves a request, it will provide to specified congressional 
committees the requesting agency's certification that the 
conversion is critical for the agency to meet its mission and 
OPM's rationale for concurring with that certification. The ANS 
also maintained the underlying bill's prohibition on the 
appointment of political appointees to a career position within 
two years of separating from a political position. The ANS was 
adopted by voice vote.

                        Committee Consideration

    On November 2, 2017, the Committee met in open session and, 
with a quorum being present, ordered the bill favorably 
reported, as amended, by voice vote.

                            Roll Call Votes

    There were no roll call votes requested or conducted during 
Committee consideration of H.R. 1132.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill amends title 5, United States Code, to provide for a 
two-year prohibition on employment in a career civil service 
position for any former political appointee, and other related 
restrictions. As such, this bill does not relate to employment 
or access to public services and accommodations in the 
legislative branch.

  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's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         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 
goal or objective of this bill is to amend title 5, United 
States Code, to provide for a two-year prohibition on 
employment in a career civil service position for any former 
political appointee, and other related restrictions.

                    Duplication of Federal Programs

    In accordance with clause 2(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 requires the Office of Personnel Management to 
issue regulations to implement H.R. 1132, including regulations 
to define ``personally and substantially participated.''

                     Federal Advisory Committee Act

    The Committee finds that 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 Statement

    Pursuant to section 423 of the Congressional Budget and 
Impoundment Control Act (Pub. L. 113-67), 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 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, November 20, 2017.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1132, the 
Political Appointee Burrowing Prevention Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 1132--Political Appointee Burrowing Prevention Act

    H.R. 1132 would amend federal law regarding the hiring of 
former political appointees, as that term is defined in the 
bill. In general, the bill would codify the Office of Personnel 
Management's (OPM's) current policies and practices regarding 
the hiring of political appointees, though CBO expects there 
would be some minor changes to OPM's processes. Specifically, 
the bill would bar political appointees from holding civil 
service positions for two years unless certain criteria were 
met. CBO estimates that the cost of implementing H.R. 1132 
would not be significant because it would not significantly 
change the government's current employment procedures.
    Enacting H.R. 1132 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 1132 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 1132 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *
PART III--EMPLOYEES

           *       *       *       *       *       *       *

SUBPART B--EMPLOYMENT AND RETENTION

           *       *       *       *       *       *       *

                  CHAPTER 31--AUTHORITY FOR EMPLOYMENT

                  SUBCHAPTER I--EMPLOYMENT AUTHORITIES

Sec.
3101. General authority to employ.
     * * * * * * *
3115. Employment of political appointees.
     * * * * * * *

SUBCHAPTER I--EMPLOYMENT AUTHORITIES

           *       *       *       *       *       *       *

Sec. 3115. Employment of political appointees

  (a) Appointment Approval Required.--
          (1) In general.--An individual described in paragraph 
        (4) may not be appointed to a career position without 
        receiving prior written approval from the Director of 
        the Office of Personnel Management with respect to such 
        appointment, consistent with the requirements of this 
        subsection.
          (2) Agency appointment request.--The head of an 
        agency shall submit a request to the Director to 
        approve the appointment of any individual described in 
        paragraph (4) to a career position. Any such request 
        shall include certification by the agency head to the 
        Director that the appointment is critical for the 
        agency to meet its mission.
          (3) OPM review.--The Director shall review any 
        request received pursuant to paragraph (2) and--
                  (A) with respect to any such request, may--
                          (i) approve the request if the 
                        Director determines that the 
                        appointment process with respect to the 
                        request was fair, open, and free from 
                        political influence; or
                          (ii) deny the request if--
                                  (I) the Director fails to 
                                make the determination under 
                                clause (i); or
                                  (II) determines that the 
                                agency certification under 
                                paragraph (2) is unreasonable; 
                                and
                  (B) with respect to a request approved under 
                subparagraph (A)(i), shall, not less than five 
                days before the date of approval, provide to 
                the Committee on Oversight and Government 
                Reform of the House of Representatives and the 
                Committee on Homeland Security and Governmental 
                Affairs of the Senate the agency certification 
                and the Director's rationale for concurring 
                with that certification.
          (4) Covered individuals.--An individual described in 
        this paragraph is--
                  (A) a political appointee;
                  (B) a former political appointee who held any 
                political position during the five-year period 
                before the date of the request described in 
                paragraph (2); or
                  (C) at the discretion of the Director, a 
                former political appointee who held any 
                political position before the five-year period 
                described in subparagraph (B).
  (b) Restriction on Appointment.--
          (1) In general.--Notwithstanding any other law, rule, 
        or regulation, during the 2-year period following the 
        date a political appointee separates from a political 
        position, such appointee may not be appointed to any 
        career position in the civil service.
          (2) Exception.--Paragraph (1) shall not apply to a 
        political appointee who has not personally and 
        substantially participated in any particular matter 
        while employed in a political position.
  (c) Application.--Nothing in this section shall be construed 
to restrict the appointment of an individual who is--
          (1) entitled to reinstatement under section 3593(b); 
        or
          (2) eligible for reinstatement under section 3593(a).
  (d) Definitions.--In this section--
          (1) the term ``agency'' has the meaning given the 
        term ``Executive agency'' in section 105;
          (2) the term ``political appointee'' means an 
        individual serving in an appointment of any duration to 
        a political position;
          (3) the term ``political position'' means--
                  (A) a position which has been excepted from 
                the competitive service by reason of its 
                confidential, policy-determining, policy-
                making, or policy-advocating character;
                  (B) a position described under sections 5312 
                through 5316 (relating to the Executive 
                Schedule); and
                  (C) a general position in the Senior 
                Executive Service during such time as it is 
                filled by--
                          (i) a noncareer appointee, as defined 
                        in paragraph (7) of section 3132(a); or
                          (ii) a limited term appointee or 
                        limited emergency appointee, as defined 
                        in paragraphs (5) and (6) of section 
                        3132(a), who is serving under a 
                        political appointment.
          (4) the term ``career position'' means--
                  (A) a position in the competitive service 
                filled by career or career-conditional 
                appointment;
                  (B) a position in the excepted service filled 
                by an appointment of equivalent tenure as a 
                position described in subparagraph (A);
                  (C) a career reserved position, as defined in 
                paragraph (8) of section 3132(a), in the Senior 
                Executive Service; or
                  (D) a general position in the Senior 
                Executive Service when filled by a career 
                appointee, as defined in section 3132(a)(4);
          (5) the term ``participated'' means an action taken 
        as an officer or employee through decision, approval, 
        disapproval, recommendation, the rendering of advice, 
        investigation, or other such action; and
          (6) the term ``particular matter'' includes any 
        investigation, application, request for a ruling or 
        determination, rulemaking, contract, controversy, 
        claim, charge, accusation, arrest, or judicial or other 
        proceeding.

           *       *       *       *       *       *       *

                            ADDITIONAL VIEWS

    H.R. 1132, the Political Appointee Burrowing Prevention 
Act, as introduced, would prohibit agencies from hiring 
political appointees for career positions for two years 
following their separation from the political positions. The 
bill has bipartisan support.
    An amendment adopted during the Committee's consideration 
of the bill would add additional significant hurdles for 
agencies seeking to hire applicants into career positions if 
they separated from political appointments in the last five 
years. The applicability of this provision would be to any 
former political appointee during the last five years who 
applies for a career position after the date of enactment, 
which raises concerns about retroactivity. Agencies would be 
required to certify, in writing, to the Office of Personnel 
Management (OPM) that the appointment is ``critical for the 
agency to meet its mission.'' This is a very high bar that 
could make it nearly impossible to hire former political 
appointees into career positions. The amendment would also 
place the final decision about whether to allow the hiring of 
former political appointees in the hands of another political 
appointee, the Director of OPM. The current review process used 
by OPM avoids this problem by delegating this authority to 
senior career officials.
    It is not clear that these additional obstacles to hiring 
qualified career staff are necessary. There are several 
controls in place already to ensure that when former political 
appointees are hired into career positions, the selection 
process is fair, open, and based on skills, knowledge, and 
abilities. The Government Accountability Office has found that 
``the ability to convert political appointees to career 
positions is an appropriate and valuable means of achieving a 
highly skilled workforce.''\1\
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    \1\ Government Accountability Office, Office of Personnel 
Management: Actions Are Needed to Help Ensure the Completeness of 
Political Conversion Data and Adherence to Policy (Sept. 30, 2016) 
(GAO-16-859) (online at www.gao.gov/assets/690/680178.pdf).
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    We all want the best people in federal service. I am 
hopeful that we can work with the Majority to address some of 
the issues raised by the amendment adopted in Committee prior 
to consideration of the bill in the full House.

                                        Elijah E. Cummings,
                                                    Ranking Member.

                                  [all]
```