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[House Report 106-433]
[From the U.S. Government Publishing Office]

106th Congress                                            Rept. 106-433
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

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

 
 AMENDING THE ETHICS IN GOVERNMENT ACT OF 1978 TO REAUTHORIZE FUNDING 
                  FOR THE OFFICE OF GOVERNMENT ETHICS

                                _______
                                

                November 2, 1999.--Ordered to be printed

                                _______

    Mr. Burton of Indiana, from the Committee on Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2904]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Government Reform, to whom was referred the 
bill (H.R. 2904) to amend the Ethics in Government Act of 1978 
to reauthorize funding for the Office of Government Ethics, 
having considered the same, report favorably thereon with 
amendments and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
  I. Summary of Legislation...........................................3
 II. Background and Need for the Legislation..........................3
III. Legislative Hearings and Committee Actions.......................4
 IV. Committee Hearings and Written Testimony.........................4
  V. Explanation of the Bill..........................................6
 VI. Committee Oversight Findings.....................................9
VII. Budget Analysis and Projections..................................9
VIII.Cost Estimate of the Congressional Budget Office.................9

 IX. Specific Constitutional Authority for this Legislation..........10
  X. Committee Recommendation........................................10
 XI. Congressional Accountability Act; Public Law 104-1..............10
XII. Unfunded Mandates Reform Act; Public Law 104-4, Section 423.....11
XIII.Federal Advisory Committee Act (5 U.S.C. App.) Section 5(b).....11

XIV. Changes in Existing Law.........................................11

  The amendments are as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. REAUTHORIZATION OF APPROPRIATIONS.

  (a) In General.--Section 405 of the Ethics in Government Act of 1978 
(5 U.S.C. App.) is amended by striking ``1997 through 1999'' and 
inserting ``2000 through 2003''.
  (b) Effective Date.--This section shall take effect on October 1, 
1999.

SEC. 2. AMENDMENT TO DEFINITION OF ``SPECIAL GOVERNMENT EMPLOYEE''.

  (a) Amendment to Section 202(a).--Subsection (a) of section 202 of 
title 18, United States Code, is amended to read as follows:
  ``(a) For the purpose of sections 203, 205, 207, 208, 209, and 219 of 
this title the term `special Government employee' shall mean--
          ``(1) an officer or employee as defined in subsection (c) who 
        is retained, designated, appointed, or employed in the 
        legislative or executive branch of the United States 
        Government, in any independent agency of the United States, or 
        in the government of the District of Columbia, and who, at the 
        time of retention, designation, appointment, or employment, is 
        expected to perform temporary duties on a full-time or 
        intermittent basis for not to exceed 130 days during any period 
        of 365 consecutive days;
          ``(2) a part-time United States commissioner;
          ``(3) a part-time United States magistrate;
          ``(4) an independent counsel appointed under chapter 40 of 
        title 28 and any person appointed by that independent counsel 
        under section 594(c) of title 28;
          ``(5) a person serving as a part-time local representative of 
        a Member of Congress in the Member's home district or State; 
        and
          ``(6) a Reserve officer of the Armed Forces, or an officer of 
        the National Guard of the United States, who is not otherwise 
        an officer or employee as defined in subsection (c) and who 
        is--
                  ``(A) on active duty solely for training 
                (notwithstanding section 2105(d) of title 5);
                  ``(B) serving voluntarily for not to exceed 130 days 
                during any period of 365 consecutive days; or
                  ``(C) serving involuntarily.''.
  (b) Amendment to Section 202(c).--Subsection (c) of 202 of title 18, 
United States Code, is amended to read as follows:
  ``(c)(1) The terms `officer' and `employee' in sections 203, 205, 207 
through 209, and 218 of this title shall include--
          ``(A) an individual who is retained, designated, appointed, 
        or employed in the United States Government or in the 
        government of the District of Columbia to perform, with or 
        without compensation and subject to the supervision of the 
        President, the Vice President, a Member of Congress, a Federal 
        judge, or an officer or employee of the United States or of the 
        government of the District of Columbia, a Federal or District 
        of Columbia function under authority of law or an Executive 
        act;
          ``(B) a Reserve officer of the Armed Forces or an officer of 
        the National Guard of the United States who is serving 
        voluntarily in excess of 130 days during any period of 365 
        consecutive days; and
          ``(C) the President, the Vice President, a Member of Congress 
        or a Federal judge, but only to the extent specified in any 
        such section.
  ``(2) As used in paragraph (1), the term `Federal or District of 
Columbia function' shall include, but not be limited to--
          ``(A) supervising, managing, directing or overseeing a 
        Federal or District of Columbia officer or employee in the 
        performance of such officer's or employee's official duties;
          ``(B) providing regular advice, counsel, or recommendations 
        to the President, the Vice President, a Member of Congress, or 
        any Federal or District of Columbia officer or employee, or 
        conducting meetings involving any of those individuals, as part 
        of the Federal or District of Columbia government's internal 
        deliberative process; or
          ``(C) obligating funds of the United States or the District 
        of Columbia.''.
  (c) New Section 202(f).--Section 202 of title 18, United States Code, 
is amended by adding at the end the following:
  ``(f) The terms `officer or employee' and `special Government 
employee' as used in sections 203, 205, 207 through 209, and 218, shall 
not include enlisted members of the Armed Forces, nor shall they 
include an individual who is retained, designated, or appointed without 
compensation specifically to act as a representative of an interest 
(other than a Federal or District of Columbia interest) on an advisory 
committee established pursuant to the Federal Advisory Committee Act or 
any similarly established committee whose meetings are generally open 
to the public.''.

  Amend the title so as to read:

    A bill to amend the Ethics in Government Act of 1978 to 
reauthorize funding for the Office of Government Ethics, and to 
expand the definition of a ``special Government employee'' 
under title 18, United States Code.

                    I. Short Summary of Legislation

    H.R. 2904 reauthorizes appropriations for the Office of 
Government Ethics for fiscal years 2000 through 2003. It also 
revises and clarifies the definition of the term ``special 
government employee'' to make unofficial advisers more 
accountable to the American people.

              II. Background and Need for the Legislation

    The authorization for the Office of Government Ethics 
expired on September 30, 1999. Although the Office is a small 
agency, the functions it performs are important in preserving 
impartiality and integrity in government operations. Testimony 
before the Subcommittee on the Civil Service's August 4, 1999 
oversight hearing on the Office revealed that, on the whole, 
the Office has performed its mission very well.
    The statutory definition of a special government employee 
has not been materially revised since its enactment in 1962. 
Under it, a special government employee is someone who is 
retained or appointed to perform duties on a full-time or part-
time basis with or without compensation for no more than 130 
days within 365 consecutive days. This definition does not give 
adequate notice of who is covered by the definition and 
therefore covered by conflict-of-interest and financial-
disclosure laws. Guidance issued by the Office of Government 
Ethics and the Department of Justice focuses on whether the 
advisor is in fact performing a Federal function, but there is 
no functional test in the statute. Neither the current law nor 
this Federal agency guidance adequately covers the various 
situations in which informal advisers in the White House have 
performed Federal functions and otherwise participated in the 
government's decision-making or policy-making process in recent 
years.
    At hearings held by the Subcommittee on Government 
Management, Information, and Technology on June 25, 1996, and 
May 1, 1997, witnesses concurred that legislative revision of 
the definition of special government employee was needed. 
Witnesses suggested that the definition be revised to adopt a 
functional test, one that concentrates on the nature of the 
Federal service the advisor is providing, rather than on the 
advisor's outside interests and affiliations. More recently, 
similar testimony was received by the Subcommittee on the Civil 
Service in a hearing held on August 4, 1999.
    This revision of the definition of a special government 
employee is intended to accomplish the following objectives. 
First, it attempts to capture informal or outside advisors who 
are not specifically appointed to advisory committees or part-
time commissions as representatives of a non-Federal interest. 
Second, it uses a functional test to consider the nature of the 
services the person is retained to provide. The revised 
definition of a special government employee in H.R. 2904, in 
the committee's opinion, achieves these objectives.
    During the 104th Congress, the House passed similar 
language in section 5 of H.R. 3452, The Presidential and 
Executive Office Accountability Act. Although most of that bill 
was enacted, becoming Public Law 104-331, this language was 
deleted in conference.

            III. Legislative Hearings and Committee Actions

    The Committee held no legislative hearings on H.R. 2904. 
Rep. Joe Scarborough introduced this measure on September 21, 
1999. As introduced, the bill merely reauthorized the Office of 
Government Ethics through fiscal year 2003. It was referred to 
the Committee on Government Reform, and in addition to the 
Committee on the Judiciary. The Committee on Government Reform 
marked up the bill on September 30, 1999. Rep. Stephen Horn 
offered an amendment in the nature of a substitute, which added 
section 2 of the bill to revise the definitionof ``special 
government employee.'' The Committee agreed to the Horn amendment by 
voice vote. Also by voice votes, the Committee adopted H.R. 2904, as 
amended, and ordered it favorably reported to the House of 
Representatives.

              IV. Committee Hearings and Written Testimony

    The Subcommittee on the Civil Service held an oversight 
hearing on the Office of Government Ethics on August 4, 1999. 
Witnesses at the hearing were Stephen D. Potts, Director of the 
Office of Government Ethics, and Gregory S. Walden, an attorney 
in private practice and a former Assistant Counsel in the White 
House.
    Mr. Potts described the functions and operations of the 
agency, which, he testified, had ``overall responsibility for 
executive branch policies related to preventing conflicts of 
interest on the part of officers and employees.'' The Office 
administers a program that is primarily preventive, with 
enforcement entrusted to other executive branch agencies, 
including the Department of Justice. The Office issues rules 
and regulations regarding such matters as conflict of interest, 
post-employment restrictions, standards of conduct, financial 
disclosure, and ethics training. It also reviews the financial 
disclosure forms filed by certain individuals nominated for or 
appointed to Federal office by the President and counsels those 
individuals on the avoidance of conflicts of interest and, when 
necessary, recommends appropriate corrective actions. Educating 
Federal employees about the ethical standards governing their 
conduct is also an important part of the Office's 
responsibilities. Toward this end, the Office trains agency 
ethics officials and assists agencies in conducting their 
internal ethics training programs. The Office also issues 
formal and informal guidance on a variety of ethics matters. In 
limited circumstances, the Office will investigate alleged 
ethics violations and order corrective action or recommend 
disciplinary action. In general, however, enforcement falls to 
individual agencies or the Department of Justice. The Office 
also evaluates the effectiveness of conflict of interest laws 
and related statutes and rules and regulations. Mr. Potts also 
testified that the Office has been enlisted by other executive 
agencies to provide technical assistance to the anti-corruption 
efforts of foreign countries.
    From time to time, the Office will also recommend modifying 
or repealing existing ethics laws or enacting new ones. In 
response to questioning, Mr. Potts testified that 18 U.S.C. 
Sec. 202, which defines the term ``special government 
employee,'' should be clarified by codifying the elements on 
which the Office currently considers in determining whether an 
individual is a special government employee. He pointed out 
that the Office had supported, and indeed had been ``one of the 
forces behind,'' legislation introduced by Rep. Mica and Rep. 
Horn in the previous two Congresses to clarify this definition. 
(However, he also expressed opposition to tying such 
legislation to a reauthorization bill.)
    Mr. Potts asked Congress to reauthorize the Office for 7 or 
8 years. In support of that request, he cited the Office's 
record over the years, its small size (a budget of $9.1 million 
for FY 2000 and a workforce of 84 full time equivalent 
employees), and the fundamental nature of the work it performs.
    Mr. Walden testified that he supported both the agency's 
reauthorization and the clarification of the term ``special 
government employee.'' In his opinion, the Office ``has 
performed exceptionally well and deserves to be reauthorized.'' 
He pointed out that he worked closely with the Office as an 
Assistant Counsel in the Bush White House and noted that it was 
the policy and practice of the Bush White House to solicit the 
Office's advice before making decisions or taking a course of 
action, and urged future Administrations to follow that 
practice as well. As an independent agency, he pointed out, the 
Office helps both to maintain the public's trust in the 
integrity of the government and protects Federal officials from 
unwarranted or politically motivated criticism.
    In his testimony, Mr. Walden identified several matters 
that he believes the Office should address: issuing rules to 
implement the post-employment restrictions in 18 U.S.C. 
Sec. 207, rules to implement section 209 of the same title, and 
rules covering such matters as legal defense funds, the outside 
activities of Federal employees in professional associations, 
and the expenses that Federal employees may accept for 
unofficial teaching, speaking, or writing. He also urged more 
involvement by the Office in ethics investigations and that the 
Office audit the White House and every Cabinet Department in 
the second year of a new Administration. Other recommendations 
included joint ethics training of political appointees by the 
White House Counsel and the Office and increased attention to 
training for employees in the field.
    Mr. Walden criticized the Office for too narrowly 
construing section 208, the conflict of interest statute, when 
it reviewed allegations that Hillary Clinton's stock portfolio 
created a conflict of interest with her responsibilities as the 
chairman of the President's Task Force on National Health Care 
Reform. He argued that the Office's conclusion that health care 
legislative proposals were too broad to constitute ``particular 
matters'' within the meaning of the statute ``exempts some 
conduct that fits the classic notion of a conflict of 
interest.''
    In addition, Mr. Walden raised several legislative 
proposals, including clarification of the definition of 
``special government employee.'' The Clinton Administration's 
``obvious struggle'' with the concept in connection with its 
perhaps unprecedented reliance on such informal advisers and 
consultants as Harry Thomason, Paul Begala, Dick Morris, and 
the numerous outsiders who worked on the Clinton health care 
proposal, as well as Mrs. Clinton's own unprecedented 
involvement in governmental affairs, according to Mr. Walden, 
highlight the need for such clarification. He pointed out that 
he had testified in support of legislation to do that in both 
1996 and 1997 and urged Congress to enact similar legislation 
before the next President is inaugurated.
    Mr. Walden testified that the length of the reauthorization 
period was a matter for congressional judgment on the best way 
to ensure regular oversight of the agency.
    Both Mr. Walden and Mr. Potts also testified in support of 
legislation to clarify thedefinition of ``special government 
employee'' before a hearing held by the Subcommittee on Government 
Management, Information, and Technology on May 1, 1997. Rep. John L. 
Mica also testified at the same hearing in strong support of that 
legislation. Testimony received by the Subcommittee on Government 
Management, Information, and Technology at its June 25, 1996 hearing on 
H.R. 3452, which included language to revise the definition, is 
summarized in House Report 104-820.

       V. Explanation of the Bill as Reported: Section-By-Section

    Section 1. This section authorizes appropriations for the 
Office of Government Ethics for fiscal years 2000 through 2003.
    Section 2. Amendment to Definition of special Government 
employee. This section amends the definition of special 
government employee in subsection 202(a) of title 18, United 
States Code. This amendment is advisable, the Committee 
believes, because hearings during the 104th Congress before the 
House Committee on Government Reform and Oversight on the 
``Travelgate'' scandal revealed that certain advisers to the 
President used their position in the White House and the staff 
of the Executive Office of the President to promote their own 
business interests, by encouraging the firing of the White 
House Travel Office staff. The Committee's report on the 
Travelgate investigation recommended reforming the definition 
of special Government employee to include ``clear standards'' 
for determining when an individual should be considered to be 
one. ``Investigation of the White House Travel Office Firings 
and Related Matters,'' H. Rep. 104-849 at 27 (104th Congress, 
2d Session).
    The Committee believes that such advisers should have been 
considered special government employees under the current tests 
used to interpret section 202. However, the Committee also 
deems it advisable to implement its earlier recommendation by 
amending the statute to make it completely clear that, in the 
future, similarly situated informal advisers would be special 
government employees and therefore subject to conflict-of-
interest and financial-disclosure laws.
    Since it was introduced in the criminal conflicts of 
interest statutes, the term ``special Government employee'' has 
always referred to a component of the larger categories of 
``officer'' and ``employee.'' To make this clear, subsection 
(c) of 18 U.S.C. Sec. 202 is amended by adding a definition for 
those terms and by referring to that definition in defining 
``special Government employee.'' There is a three-part test for 
determining whether someone is an ``officer'' or ``employee.'' 
First, the individual must be retained, designated, appointed, 
or employed, with or without compensation, by a Federal (or 
District of Columbia) official or employee. Second, the 
individual must be subject to the supervision of a Federal (or 
District of Columbia) official or employee. And, third, the 
individual must carry out a Federal (or District of Columbia) 
function as defined by this amendment. Both the three-part test 
for ``officer'' and ``employee'' and the definition of a 
Federal (or District of Columbia) function are intended to 
codify longstanding interpretations of the terms applied by the 
Department of Justice and the Office of Government Ethics.
    In general, subsection (a) provides that a special 
Government employee must be an officer or employee and meet two 
additional criteria: (1) the individual must serve in the 
legislative or executive branch of government; and (2) when 
retained, designated, appointed, or employed, the individual 
must not be expected to perform temporary duties on a full-time 
or intermittent basis, for more than 130 days during any period 
of 365 consecutive days. Current law provides that persons in 
certain positions shall be considered ``special Government 
employees.'' The amendment continues to include those 
positions.
    Because of past confusion, the Committee wishes to stress 
that a formal act of retention, designation, appointment, or 
employment is not necessary for an individual to be considered 
an ``officer'' or ``employee'' or a ``special Government 
employee'' for purposes of criminal conflicts of interest law. 
On the other hand, individuals who provide advice to Federal 
(or District of Columbia) officials or employees will not be 
considered ``officers,'' ``employees,'' or ``special Government 
employees'' unless they are subject to supervision by a Federal 
(or District of Columbia) official or employee and perform a 
Federal function, as defined in this amendment. Whether an 
individual is supervised by a Federal (or District of Columbia) 
official or employee is often the basis for determining whether 
that individual is an independent contractor or an ``officer'' 
or ``employee.''
    The Committee does not intend that an individual be 
considered an ``officer,'' ``employee,'' or ``special 
Government employee'' based solely upon comments or advice to a 
Federal (or District of Columbia) official or employee. In 
order to allay fears that simply giving informal advice to such 
an official or employee will subject an individual to criminal 
sanctions under conflicts of interest law, the amendment to 
section 202(c) identifies three non-exclusive substantive 
activities that are considered Federal (or District of 
Columbia) functions. They are:
          1. Supervising, managing, directing, or overseeing a 
        Federal or District of Columbia officer or employee in 
        the performance of such officer's or employee's 
        official duties.
          2. Participating in the Federal or District of 
        Columbia government's internal deliberative process by, 
        for example, providing regular advice, counsel, or 
        recommendations to the President, the Vice President, a 
        Member of Congress, or any other Federal or District of 
        Columbia officer or employee, or conducting meetings 
        involving any of those individuals.
          3. Obligating funds of the United States or the 
        District of Columbia.
    The definition of ``officer'' and ``employee'' would, of 
course, continue to include regular, salaried individuals 
formally employed by the government, such as persons who fit 
within the definitions of 5 U.S.C. Sec. Sec. 2104 and 2105, 
regardless of whether they engage in any of theactivities 
described by these three criteria.
    The amendment also provides for a new subsection (f), which 
describes positions that are not to be considered as 
``officers,'' ``employees,'' or ``special Government 
employees'' for the purpose of chapter 11 of title 18, United 
States Code. Consistent with current law, the subsection states 
that enlisted members of the Armed Forces are not to be so 
considered.
    Subsection (f) also codifies a long-standing interpretation 
of section 202 that permits certain individuals to function as 
representatives of interested parties on advisory bodies. It 
recognizes that from time to time the Government solicits the 
advice of parties with a financial or other stake in a 
particular matter by appointing individuals to serve as their 
voice on advisory committees under the Federal Advisory 
Committee Act or similar bodies whose meetings are generally 
open to the public. To apply the conflict of interest 
restrictions in such situations would almost always defeat the 
purpose of seeking the advice of interested groups. Individuals 
representing such groups have been called ``representatives,'' 
and that term is used in this new subsection.
    Certain actions by the selecting authority are required if 
individuals are to be considered ``representatives'' under 
subsection (f), and certain limitations are imposed on their 
actions. First, the authority of a particular agency or entity 
to select a ``representative'' (as opposed to a ``special 
Government employee'') for an advisory body and the designation 
of the individual to serve as a ``representative'' is a 
determination to be made by the government selecting authority 
at the time of the individual's retention, designation, or 
appointment. This status is conferred by the government, not 
determined by the individual. (However, the agency should make 
the status of the individual known at the time of selection so 
that the individual is clear as to his or her obligations under 
the criminal conflicts laws.) Second, a ``representative'' may 
provide only advice to the government. Individuals who have any 
authority to take actions other than providing advice will be 
governed by conflicts laws. Third, ``representatives'' cannot 
receive any salary or other compensation from the government 
for their services. (For the purposes of this subsection, the 
payment of travel expenses and a per diem to defray the 
individual's expenses in attending a meeting of the committee 
or other body is not considered compensation.) Finally, a 
``representative's'' advice is generally provided in a public 
meeting. A public forum has a twofold purpose: (1) the public 
can be aware that advice from interested parties has been 
sought, and (2) individuals or organizations whose views are to 
be expressed by the ``representative'' can judge whether the 
advice given accurately or adequately reflects their interest. 
Individuals and organizations are free to impress upon the 
``representative'' the views they expect him or her to express.

                    VI. Committee Oversight Findings

    Pursuant to rule XIII, clause (3)(c)(1) of the Rules of the 
House of Representatives, the results and findings for those 
oversight activities are incorporated in the recommendations 
found in the bill and in this report.

                  VII. Budget Analysis and Projections

    The budget analysis and projections required by section 
308(a) of the Congressional Budget Act of 1974 are contained in 
the estimate of the Congressional Budget Office.

         VIII. Cost Estimate of the Congressional Budget Office

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 13, 1999.
Hon. Dan Burton,
Chairman, Committee on Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2904, a bill to 
amend the Ethics in Government Act of 1978 to reauthorize 
funding for the Office of Government Ethics, and to expand the 
definition of a ``special government employee'' under title 18, 
United States Code.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is John R. 
Righter.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 2904--A bill to amend the Ethics in Government Act of 1978 to 
        reauthorize funding for the Office of Government Ethics, and to 
        expand the definition of a ``special government employee'' 
        under title 18, United States Code

    Summary: H.R. 2904 would reauthorize the Office of 
Government Ethics (OGE) for fiscal years 2000 through 2003. In 
addition, the bill would apply the definition of a special 
government employee to individuals who provide regular advice 
or counsel to the President, Vice President, a Member of 
Congress, or a federal judge. Special government employees are 
individuals who provide temporary services to the government. 
Assuming appropriation of the necessary amounts, CBO estimates 
that implementing H.R. 2904 would result in additional 
discretionary spending of $29 million over the 2001-2004 period 
(Public Law 106-58 appropriated $9.1 million to the OGE for 
fiscal year 2000). This estimate assumes an adjustment for 
anticipated inflation in 2002 and 2003. Without such an 
adjustment, we estimate additional spending would total $27 
million over the 2001-2004 period. Because H.R. 2904 would not 
affect direct spending or receipts, pay-as-you-go procedures 
would not apply. H.R. 2904 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act (UMRA) and would not affect the budgets of state, 
local, or tribal governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 2904 is shown in the following table. 
For the purposes of this estimate, CBO assumes that the 
estimated authorization level will be appropriated by the start 
of each fiscal year and that outlays will follow the historical 
spending pattern of the OGE. In addition, we estimate that 
expanding the definition of a special government employee would 
not significantly increase the costs to federal agencies and 
Congressional offices to review any additional financial 
disclosure forms required of such employees. The costs of this 
legislation fall within budget function 800 (general 
government).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2000     2001     2002     2003     2004
----------------------------------------------------------------------------------------------------------------
                                        SPENDING SUBJECT TO APPROPRIATION
 
OGE spending under current law:
    Budget Authority \1\...........................................        9        0        0        0        0
    Estimated outlays..............................................        9        1        0        0        0
Proposed changes:
    Estimated Authorization Level..................................        0        9       10       10        0
    Estimated outlays..............................................        0        8       10       10        1
OGE spending under H.R. 2904:
    Estimated Authorization Level \1\..............................        9        9       10       10        0
    Estimated outlays..............................................        9        9       10       10        1
----------------------------------------------------------------------------------------------------------------
\1\ The 2000 level is the amount appropriated for that year.

    Pay-as-you-go considerations: None.
    Intergovernmental and private sector impact: H.R. 2904 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: John R. Righter.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

               IX. Statement of Constitutional Authority

    Pursuant to rule XIII, clause 3(d)(1), the Committee finds 
that clauses 1 and 18 of Article I, Sec. 8 of the U.S. 
Constitution grant Congress the power to enact this law.

                      X. Committee Recommendation

    On September 30, 1999, a quorum being present, the 
Committee ordered the bill, as amended, favorably reported by 
voice vote to the House for consideration.

    XI. Congressional Accountability Act; Public Law 104-1; Section 
                               102(B)(3)

    H.R. 2904 applies to special Government employees in the 
legislative branch.

    XII. Unfunded Mandates Reform Act; Public Law 104-4; Section 423

    H.R. 2904 does not impose any Federal mandates on state, 
local, or tribal governments, or the private sector, and it 
does not preempt any state or local law.

   XIII. Federal Advisory Committee Act (5 U.S.C. App.) Section 5(b)

    The Committee finds that H.R. 2904 does not establish or 
authorize establishment of an advisory committee within the 
definition of 5 U.S.C. App., Section 5(b).

       XIV. 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 (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):

          SECTION 405 OF THE ETHICS IN GOVERNMENT ACT OF 1978

                    authorization of appropriations

  Sec. 405. There are authorized to be appropriated to carry 
out this title such sums as may be necessary for each of fiscal 
years [1997 through 1999] 2000 through 2003.
                              ----------                              

              SECTION 202 OF TITLE 18, UNITED STATES CODE

Sec. 202. Definitions

  [(a) For the purpose of sections 203, 205, 207, 208, and 209 
of this title the term ``special Government employee'' shall 
mean an officer or employee of the executive or legislative 
branch of the United States Government, of any independent 
agency of the United States or of the District of Columbia, who 
is retained, designated, appointed, or employed to perform, 
with or without compensation, for not to exceed one hundred and 
thirty days during any period of three hundred and sixty-five 
consecutive days, temporary duties either on a full-time or 
intermittent basis, a part-time United States commissioner, a 
part-time United States magistrate, or, regardless of the 
number of days of appointment, an independent counsel appointed 
under chapter 40 of title 28 and any person appointed by that 
independent counsel under section 594(c) of title 28. 
Notwithstanding the next preceding sentence, every person 
serving as a part-time local representative of a Member of 
Congress in the Member's home district or State shall be 
classified as a special Government employee. Notwithstanding 
section 29(c) and (d) of the Act of August 10, 1956 (70A Stat. 
632; 5 U.S.C. 30r(c) and (d)), a Reserve officer of the Armed 
Forces, or an officer of the National Guard of the United 
States, unless otherwise an officer or employee of the United 
States, shall be classified as a special Government employee 
while on active duty solely for training. A Reserve officer of 
the Armed Forces or an officer of the National Guard of the 
United States who is voluntarily serving a period of extended 
active duty in excess of one hundred and thirty days shall be 
classified as an officer of the United States within the 
meaning of section 203 and sections 205 through 209 and 218. A 
Reserve officer of the Armed Forces or an officer of the 
National Guard of the United States who is serving 
involuntarily shall be classified as a special Government 
employee. The terms ``officer or employee'' and ``special 
Government employee'' as used in sections 203, 205, 207 through 
209, and 218, shall not include enlisted members of the Armed 
Forces.]
  (a) For the purpose of sections 203, 205, 207, 208, 209, and 
219 of this title the term ``special Government employee'' 
shall mean--
          (1) an officer or employee as defined in subsection 
        (c) who is retained, designated, appointed, or employed 
        in the legislative or executive branch of the United 
        States Government, in any independent agency of the 
        United States, or in the government of the District of 
        Columbia, and who, at the time of retention, 
        designation, appointment, or employment, is expected to 
        perform temporary duties on a full-time or intermittent 
        basis for not to exceed 130 days during any period of 
        365 consecutive days;
          (2) a part-time United States commissioner;
          (3) a part-time United States magistrate;
          (4) an independent counsel appointed under chapter 40 
        of title 28 and any person appointed by that 
        independent counsel under section 594(c) of title 28;
          (5) a person serving as a part-time local 
        representative of a Member of Congress in the Member's 
        home district or State; and
          (6) a Reserve officer of the Armed Forces, or an 
        officer of the National Guard of the United States, who 
        is not otherwise an officer or employee as defined in 
        subsection (c) and who is--
                  (A) on active duty solely for training 
                (notwithstanding section 2105(d) of title 5);
                  (B) serving voluntarily for not to exceed 130 
                days during any period of 365 consecutive days; 
                or
                  (C) serving involuntarily.

           *       *       *       *       *       *       *

  [(c) Except as otherwise provided in such sections, the terms 
``officer'' and ``employee'' in sections 203, 205, 207 through 
209, and 218 of this title shall not include the President, the 
Vice President, a Member of Congress, or a Federal judge.]
  (c)(1) The terms ``officer'' and ``employee'' in sections 
203, 205, 207 through 209, and 218 of this title shall 
include--
          (A) an individual who is retained, designated, 
        appointed, or employed in the United States Government 
        or in the government of the District of Columbia to 
        perform, with or without compensation and subject to 
        the supervision of the President, the Vice President, a 
        Member of Congress, a Federal judge, or an officer or 
        employee of the United States or of the government of 
        the District of Columbia, a Federal or District of 
        Columbia function under authority of law or an 
        Executive act;
          (B) a Reserve officer of the Armed Forces or an 
        officer of the National Guard of the United States who 
        is serving voluntarily in excess of 130 days during any 
        period of 365 consecutive days; and
          (C) the President, the Vice President, a Member of 
        Congress or a Federal judge, but only to the extent 
        specified in any such section.
  (2) As used in paragraph (1), the term ``Federal or District 
of Columbia function'' shall include, but not be limited to--
          (A) supervising, managing, directing or overseeing a 
        Federal or District of Columbia officer or employee in 
        the performance of such officer's or employee's 
        official duties;
          (B) providing regular advice, counsel, or 
        recommendations to the President, the Vice President, a 
        Member of Congress, or any Federal or District of 
        Columbia officer or employee, or conducting meetings 
        involving any of those individuals, as part of the 
        Federal or District of Columbia government's internal 
        deliberative process; or
          (C) obligating funds of the United States or the 
        District of Columbia.

           *       *       *       *       *       *       *

  (f) The terms ``officer or employee'' and ``special 
Government employee'' as used in sections 203, 205, 207 through 
209, and 218, shall not include enlisted members of the Armed 
Forces, nor shall they include an individual who is retained, 
designated, or appointed without compensation specifically to 
act as a representative of an interest (other than a Federal or 
District of Columbia interest) on an advisory committee 
established pursuant to the Federal Advisory Committee Act or 
any similarly established committee whose meetings are 
generally open to the public.

                             MINORITY VIEWS

    We support the amendment to the Ethics in Government Act of 
1978 to reauthorize funding for the Office of Government 
Ethics, and with one exception, join in the Majority report. 
The exception concerns the statement in the report that 
``certain advisors to the President used their position in the 
White House and the staff of the Executive Office of the 
President to promote their own business interests, by 
encouraging the firing of the White House Travel Office 
staff.'' The minority views provided in House Report 104-849, 
``Investigation of the White House Travel Office Firings and 
Related Matters,'' reflect our views on the Travel Office 
investigation.

                                   Henry A. Waxman.
                                   Elijah E. Cummings.
                                   Major R. Owens.
                                   Edolphus Towns.
                                   Patsy T. Mink.
                                   Carolyn B. Maloney.
                                   Eleanor Holmes Norton.
                                   Chaka Fattah.
                                   Dennis J. Kucinich.
                                   John F. Tierney.
                                   Harold E. Ford, Jr.
                                   Janice D. Schakowsky.

                                  
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