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H.R. 984, THE EXECUTIVE BRANCH REFORM ACT

OF 2007 AND H.R. 985, THE WHISTLEBLOWER

PROTECTION ENHANCEMENT ACT OF 2007

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 984

TO PROVIDE FOR REFORM IN THE OPERATIONS OF THE EXECUTIVE

BRANCH

AND ON

H.R. 985

TO AMEND TITLE 5, UNITED STATES CODE, TO CLARIFY WHICH DISCLOSURES OF INFORMATION ARE PROTECTED FROM PROHIBITED

PERSONNEL PRACTICES; TO REQUIRE A STATEMENT IN NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS TO THE EFFECT THAT

SUCH POLICIES, FORMS, AND AGREEMENTS ARE CONSISTENT WITH

CERTAIN DISCLOSURE PROTECTIONS, AND FOR OTHER PURPOSES

FEBRUARY 13, 2007

Serial No. 110–26

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSISGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

——— ———

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

DAVID MARIN, Minority Staff Director

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C O N T E N T S

Page

Hearing held on February 13, 2007 ....................................................................... 1

Text of H.R. 984 ....................................................................................................... 10

Text of H.R. 985 ....................................................................................................... 32

Statement of:

Thurber, James A., Ph.D., director and distinguished professor, Center

for Congressional and Presidential Studies, American University; Fred

Wertheimer, president and CEO, Democracy 21; and Craig Holman,

Ph.D., legislative representative, Public Citizen ........................................ 61

Holman, Craig ........................................................................................... 87

Thurber, James A. ..................................................................................... 61

Wertheimer, Fred ...................................................................................... 80

Weaver, William G., Ph.D., associate professor, University of Texas at

El Paso; Nick Schwellenbach, investigator, Project on Government

Oversight; Thomas Devine, legal director, Government Accountability

Project; and Mark S. Zaid, attorney, Krieger and Zaid, PLLC ................. 178

Devine, Thomas ......................................................................................... 206

Schwellenbach, Nick ................................................................................. 189

Weaver, William G. ................................................................................... 178

Zaid, Mark S. ............................................................................................. 240

Letters, statements, etc., submitted for the record by:

Davis, Hon. Tom, a Representative in Congress from the State of Virginia, prepared statement of ........................................................................ 59

Devine, Thomas, legal director, Government Accountability Project, prepared statement of ........................................................................................ 208

Holman, Craig, Ph.D., legislative representative, Public Citizen:

Prepared statement of ............................................................................... 163

Revolving Door Working Group paper ..................................................... 88

Schwellenbach, Nick, investigator, Project on Government Oversight, prepared statement of ........................................................................................ 191

Thurber, James A., Ph.D., director and distinguished professor, Center

for Congressional and Presidential Studies, American University, prepared statement of ........................................................................................ 65

Waxman, Hon. Henry A., a Representative in Congress from the State

of California, prepared statement of ........................................................... 4

Weaver, William G., Ph.D., associate professor, University of Texas at

El Paso, prepared statement of .................................................................... 180

Wertheimer, Fred, president and CEO, Democracy 21, prepared statement of ........................................................................................................... 82

Zaid, Mark S., attorney, Krieger and Zaid, PLLC, prepared statement

of ..................................................................................................................... 243

(1)

H.R. 984, THE EXECUTIVE BRANCH REFORM

ACT OF 2007 AND H.R. 985, THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT

OF 2007

TUESDAY, FEBRUARY 13, 2007

HOUSE OF REPRESENTATIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 10 a.m., in room 2154,

Rayburn House Office Building, Hon. Henry A. Waxman (chairman

of the committee) presiding.

Present: Representatives Waxman, Cummings, Tierney, Watson,

Yarmuth, Braley, McCollum, Cooper, Davis of Virginia, Shays,

Platts, Issa, and Sali.

Staff present: Phil Schiliro, chief of staff; Phil Barnett, staff director and chief counsel; Kristin Amerling, general counsel; Karen

Lightfoot, communications director and senior policy advisor;

Michelle Ash, chief legislative counsel; Mark Stephenson, professional staff member; Earley Green, chief clerk; Teresa Coufal, deputy clerk; Davis Hake, staff assistant; Leneal Scott, information officer; David Marin, minority staff director; Larry Halloran, minority deputy staff director; Jennifer Safavian, minority chief counsel

for oversight and investigations; Keith Ausbrook, minority chief

counsel; Ellen Brown, minority legislative director and senior policy

counsel; Mason Alinger, minority deputy legislative director; John

Brosnan, minority senior procurement counsel; Jim Moore, minority counsel; Patrick Lyden, minority parliamentarian & member

services coordinator; Benjamin Chance, minority clerk; and Bill

Womack, minority legislative director.

Chairman WAXMAN. The meeting of the committee will come to

order.

Today the committee holds a hearing on two bills, the executive

branch Reform Act and the Whistleblower Protection Enhancement

Act. Both of these bills are the product of hard work and close bipartisan cooperation. Both of these measures were also reported

out by this committee on near unanimous votes in the last Congress.

Last year when we marked up these bills, I said they were an

example of how Congress ought to work. I still feel that way, and

I want to thank Ranking Member Davis for all the effort he has

put into these measures, and for the truly bipartisan spirit with

which he has approached these issues.

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The indictments and scandals that have gripped Washington in

recent years are proof that our existing laws need to be strengthened. The public wants honesty and accountability in Government

and it is our job in the Oversight Committee to take the lead on

reform.

At the end of the last Congress, Ranking Member Davis and I

released a bipartisan report on Jack Abramoff’s contacts with

White House officials. Our report offered ‘‘an unusually detailed

glimpse into a sordid subculture of fraud and attempted influence

peddling.’’ We undertook this investigation because we wanted to

learn what reforms would protect the integrity and increase the

transparency of Government. We were able to reach agreement on

a report about Jack Abramoff, because we decided to let the facts

speak for themselves and avoid characterizations, inferences and

spin. Although we drew somewhat different conclusions from the

facts we recounted, we did reach agreement about the need for fundamental reform.

We recognized that changes in the law were needed to bring

greater transparency to meetings between the private sector and

executive branch officials by requiring all political appointees and

senior officials in Federal agencies and the White House to report

their contacts with private parties seeking to influence official Government action. Today, we begin this reform process. The executive

branch Reform Act, which Ranking Member Davis and I have introduced, is a comprehensive reform measure that would increase

transparency in the executive branch by requiring senior Government officials to report significant contacts with lobbyists. It would

end the secret meetings between special interests and Government

officials that characterize the operation of Vice President Cheney’s

Energy Task Force, and it would expose the activities of influence

peddlers like Jack Abramoff to public scrutiny. That is why this bill

may be the most significant open Government legislation since the

enactment of the Freedom of Information Act.

Today we will also be considering the Whistleblower Protection

Enhancement Act. This important bill would for the first time extend whistleblower protections to national security officials and employees of Federal contractors. It would make key improvements to

current law to protect all whistleblowers in Federal Government

agencies and it would ensure that Federal scientists who report political interference with their work are protected from retribution.

A key component of accountability is whistleblower protection.

Federal employees are on the inside, they see when taxpayer dollars are wasted. They are often the first to see the signals of corrupt or incompetent management; yet without adequate protections, they cannot step forward to blow the whistle. There are

many Federal Government workers who deserve whistleblower protection but perhaps none more than national security officials.

These are Federal Government employees who have undergone extensive background investigations, obtained security clearances and

handled classified information on a routine basis. Our own Government has concluded that they can be trusted to work on the most

sensitive law enforcement and intelligence projects. Yet these officials receive no protection when they come forward to identify

abuses that are undermining our national security. This bill would

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finally give these courageous individuals the protections they deserve.

I am very proud of the leadership role of our committee on a bipartisan basis in taking on these important bills . We are the committee with the authority to reform the ethics laws that govern the

executive branch of the Federal Government. We are the committee

with the authority to restore the principles of open Government.

And we are the committee with the authority to close the revolving

door between Federal agencies and the private sector to ban secret

meetings between Government officials and lobbyists and to halt

procurement abuses. To meet these challenges, we must use our

broad oversight power to investigate and expose abuses.

But we should not stop there. We should also use our legislative

authority to draft essential reforms. And today we begin in this important legislative process.

[The prepared statement of Hon. Henry A. Waxman and the

texts of H.R. 984 and 985 follow:]

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Chairman WAXMAN. At this point, I want to recognize the ranking member of the committee, Mr. Davis.

Mr. DAVIS OF VIRGINIA. Thank you, Mr. Chairman. I think it

says a great deal about our working relationship that the first legislative hearing under your leadership continues the committee’s

consideration of two bills that you and I worked together on last

year, but were unable to get enacted into law before the session

ended. Both proposals are aimed at improving transparency in

Government as a way of restoring trust in how the public’s business is conducted.

The first bill being discussed today is the executive branch Reform Act. Chairman Waxman and I introduced substantially the

same legislation last April, which the committee approved by a vote

of 32 to nothing. In addition to other reforms, the legislation would

ensure that the behavior of our public servants is above reproach,

by requiring executive branch officials to disclose any contacts involving the discussion of pending agency business. In doing so, this

legislation attempts to strike that fine balance between reasonable

and focused rules of ethical behavior and overly broad restrictions

and prohibitions that hamstring agency officials and prevent them

from exercising the discretion needed to perform their missions on

behalf of our citizens.

I applaud Chairman Waxman’s continued focus on this issue. I

look forward to working with him to improve this legislation as it

moves forward.

The second bill being discussed today is the Whistleblower Protection Enhancement Act. Last year’s version of this legislation,

sponsored by our colleague, Representative Todd Platts, was reported by this committee on a 34 to 1 vote. In a nutshell, the bill

would modernize, clarify and expand Federal employee whistleblower protection laws. The most significant reform would guarantee Federal employees a right to a jury trial in Federal court if the

Merit Systems Protection Board does not take action on a claim

within 180 days. Recourse for whistleblowers victimized by retaliatory actions in certain national security agencies would also be

strengthened.

In addition to the witnesses before us today, I have encouraged

affected branch agencies, specifically the Merit Systems Protection

Board, the Office of Government Ethics, the Office of Federal Procurement Policy and the Department of Justice to submit comments for the record regarding these proposals. Chairman Waxman, despite the fact that we are scheduled to mark up these bills

soon, I hope you will keep the record open long enough for these

stakeholders to have their comments included for future reference.

I want to thank you again, and I look forward to hearing from

our witnesses.

[The prepared statement of Hon. Tom Davis follows:]

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Chairman WAXMAN. Thank you. I think that is an excellent suggestion. We will keep the record open for 7 days for Members to

put in opening statements and for any other submissions that

stakeholders may have on this legislation.

I want to call on Members who may wish to deliver an opening

statement at this time. But I want to acknowledge the work of

Congressman Platts as the chairman of the subcommittee particularly on the Whistleblower Bill and recognize him for any comments he wishes to make. I congratulate you and express the appreciation of all of us for the hard work you put into that legislation.

Mr. PLATTS. Thank you, Mr. Chairman. I appreciate your kind

words, and especially appreciate this hearing on two very important pieces of legislation that are very much focused on open and

accountable Government. I obviously am especially pleased that we

are addressing the Whistleblower Protection Act today and am honored to be serving with you as co-sponsor of the legislation and the

planned markup of both of these pieces of legislation tomorrow.

Also I want to recognize Ranking Member Davis for his leadership the past 4 years, working with you on this committee for the

good of open and accountable Government and know that through

these bipartisan efforts we are going to have success and move

these pieces of legislation forward out of committee and hopefully

through the House and Senate and to the President’s desk. I think

that what the American people, when they look to their Government, they may not always agree with every action their Government takes, but if they know it is done in the light of day and in

a responsible manner, without undue influence from outside, and

where there is wrongdoing, we hold those involved accountable,

they will respect their Government. The Whistleblower Protection

Act is about ensuring that when there is wrongdoing, waste, fraud,

mismanagement, that the public servants know they can come forward and present that information and not be at risk of demotions

or other harm to their own careers for doing the right thing for the

American people.

So again, my sincere thanks, Mr. Chairman, for your holding this

hearing, and determined commitment to moving these issues forward for the good of the American public. Thank you, Mr. Chairman.

Chairman WAXMAN. Thank you very much for your comments.

Anyone else wish to make an opening statement? If not, we will

proceed to our hearing.

We are pleased to have three witnesses on our first panel. Dr.

James Thurber, the distinguished professor and director of the

Center for congressional and Presidential Studies at American University. He is a well-known expert on ethics and lobbying. Fred

Wertheimer, president and founder of Democracy 21 is an accomplished and effective advocate of Government ethics and accountability. And Craig Holman, who is representing Public Citizen, has

closely studied the problem of revolving door and other challenges

to integrity in governance.

It is our practice in this committee to swear in all witnesses. So

I would like to ask you, if you would, to please stand and raise

your right hands.

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[Witnesses sworn.]

Chairman WAXMAN. The record will indicate that each of the witnesses answered in the affirmative.

Dr. Thurber, why don’t we start with you?

STATEMENTS OF JAMES A. THURBER, PH.D., DIRECTOR AND

DISTINGUISHED PROFESSOR, CENTER FOR CONGRESSIONAL AND PRESIDENTIAL STUDIES, AMERICAN UNIVERSITY; FRED WERTHEIMER, PRESIDENT AND CEO, DEMOCRACY 21; AND CRAIG HOLMAN, PH.D., LEGISLATIVE REPRESENTATIVE, PUBLIC CITIZEN

STATEMENT OF JAMES A. THURBER

Mr. THURBER. Good morning, Mr. Chairman and ranking member, Mr. Davis, members of the committee. I am pleased to accept

this invitation to comment on the executive branch act of 2007.

I will be focused on three things, one in particular the problems

that exist with respect to lobbying the executive branch and the

problems of revolving door in and out of Government and conflict

of interest. Second, the current attempt to solve those problems in

your bill. But also I will make some recommendations for additional solutions with respect to that.

I would like to summarize my remarks and keep it short. I assume that the remarks will be placed in the record and that I am

open to questions later on about those remarks. But the summary

is as follows.

I would like to remind you of something that the audience

knows. And by the way, I have several students in the audience.

I am very pleased about that, because they have taken my ethics

and lobbying class and several work on committees on the Hill,

they are probably working right now, they cannot come to the

meeting. So this is important to me in terms of my mentoring them

as well as educating them.

I would like to remind the committee that Congress is only part

of the ethics and lobbying problem. In fact, the laws that exist and

also the two proposals out of the House and the Senate with respect to lobbying I think do not appropriately focus on the question

of where most of the lobbying goes on in Washington, DC. That is

not on the Hill, it is with the executive branch. There are 31,000

registered lobbyists. There is some discussion about whether that

is accurate or not. But in my opinion, there are probably twice as

many people actually in the business of lobbying in Washington,

DC, if you take into account people trying to change contracts, expand the scope and size of contracts, influence the request for proposals that come out so that only one company is eligible, really,

to bid on that proposal, the total cost of lobbying in Washington in

2005, as registered through the House and the Senate records, was

$2.8 billion, $2.8 billion. I think it is probably at least double that

if you look at the people lobbying the regulatory process, the contract process, selling things to the Government, expanding contracts in secret.

The public confidence in Congress was at a historic low and a

major issue in the 2006 election. But the public confidence in Government was also low. This bill and the problems address in this

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bill, in my opinion, address that question of the integrity of our

Government generally. I think it goes a long way toward doing

that.

The public interest is undermined when a narrow set of public

interests meet in secret in Government, and when no-bid contracts

for Government projects are awarded to political friends. And also

when people who are working in Government leave and immediately work for corporations and make millions of dollars going

back to the same organization, not exactly in the same area where

they worked, but generally the same organization, like in the Department of Homeland Security. I think that there is little transparency in the Federal contracting process, and even less when it

comes to lobbying executive branch officials for contracts. And I

think this bill helps to improve transparency.

I think though the bill has an inappropriately limiting definition

of lobbying. The 1995 Lobbying Registration Act has a narrow definition of lobbying as to who the people in the executive branch that

lobbyists must record, but also what they do. Your act, I think your

act would be improved if you referred to those definitions in existing law and also the law that may indeed be changed as a result

of actions of the House and the Senate.

I think the best way to eliminate the potential evils of secret

meetings is to make them open or at least make them transparent

through prompt and accurate reporting of their occurrence, on a

quarterly basis, as you have recommended. Again, I think you

should adopt similar requirements for those who lobby the Congress as with the executive branch, make them parallel.

Attention should be paid, again, to the hundreds of secret meetings that happen each week between Government executives and

lobbyists for private interests who are seeking Federal contracts or

contract extensions. This is especially important, because if there

is an existing contract and there is a meeting to expand the scope

of that contract, that was what the situation was with Duke

Cunningham. Or individuals who seek to influence the Federal regulatory process. I think there are many people doing that that are

not covered under the 1946 Administrative Procedures Act, and are

not registering and have undue influence.

Let’s focus on revolving door problems. There is a rapidly revolving door, as we know, between the private sector and K Street.

Craig Holman’s group has done a great job documenting that. I

won’t go through the documentation of all the specifics. But what

does that do? It creates an unlevel playing field for some well-connected Government contractors when this happens. Since we are

contracting out so much work from this Federal Government, Paul

Light has documented the contracting out of many basic functions,

this is a very important thing to focus on. The revolving door problem between K Street and the executive branch seems to be getting

worse. The Reagan administration had 214 top level officials go

through the revolving door to areas that they were involved with

when they were in Government. Clinton had 268 and this Bush administration so far has had 253 officials leave their top Government offices for lobbying jobs or jobs in the private sector related

to their Government responsibilities.

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For example, 90 Department of Homeland Security officials have

left Government service to become consultants, lobbyists or executives for companies doing business with the Federal Government

within a few weeks, including Secretary Tom Ridge. More than

two-thirds of the top DHS officials left for the private sector in the

Department’s first years. It has been a revolving door that has

caused management problems at DHS, but also conflict of interest

issues on the outside.

The current law, as you know, prohibits Federal Government employees from lobbying their former employers for 1 year. But a

loophole created at DHS only prohibits former employees from lobbying certain agencies within DHS, which means that they can still

lobby other agencies within the Department immediately after they

leave. This loophole was created in 2004 when the top DHS ethics

officials got approval from the Office of Government Ethics to divide the Department into seven sections for conflict of interest purposes. You work in one section, you can contact the six other sections and lobby for your client in those sections.

If you look at the special study, the Revolving Door Working

Group, which Craig I am sure will talk about later, and therefore

I will not summarize it, they have listed at least 12 major illegal

actions that are going on as a result of the revolving door, including handing out favors to former clients, writing the specifications

for the request for proposal so that they can only be met by a

friend or former employee, and other issues like that.

What are the solutions? Well, I think this bill goes a long way

toward solving these two problems of transparency in terms of lobbyists meeting with executive branch officials, executive branch officials being required to record that. Some people say that it is too

onerous. Every executive branch official has their schedule electronically set. I think that it is reasonable in a democracy to make

that transparent as to who is visiting them, what they are talking

about, the purpose of it.

But also I would add, by the way, to your bill, where it takes

place. It may take place on a golf course. Or it may take place at

some resort, not just in their office. We need to know about that,

in my opinion.

Solutions. What are the solutions to ending secret meetings and

conflicts of interest stemming from the revolving door and in and

out of Government? Your bill does a great job. Let me just focus

on some items where you should go further.

Chairman WAXMAN. Dr. Thurber, could you try to summarize?

The whole testimony is going to be in the record.

Mr. THURBER. Let me just summarize by saying that I think you

should look carefully, as I said before, at existing law for the lobbyists, and apply that to the executives in terms of recording. And

also focus on enforcement of existing law with respect to the lobbyists. I know it is out of your jurisdiction, but enforcement of the executive branch. I think a lot of people are breaking the law right

now in terms of this.

I would also extend the cooling off period to 2 years. And as in

your bill, I have mentioned some waivers that you should look at

besides the waivers that you have indicated. Waivers are too easy

for people to get in many cases, in terms of the revolving door.

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Then also shut-down on negotiation of jobs while they are in their

position. It is against the law now, shut down those waivers, and

I think the bill goes a long way toward that.

Thank you very much. If you have any questions, I would be

pleased to answer them.

[The prepared statement of Mr. Thurber follows:]

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Chairman WAXMAN. Thank you very much. We appreciate your

testimony.

Mr. Wertheimer, again, to you and all the witnesses who appear

today, the prepared statement will be made a part of the record in

its entirety. We would like to ask you to stick to around 5 minutes

in summary.

STATEMENT OF FRED WERTHEIMER

Mr. WERTHEIMER. Chairman Waxman, Ranking Member Davis

and members of the committee, we very much appreciate the opportunity to testify today. At the outset, I would just like to remark

that at a time when we all see and face heavy polarization in Congress, it has been very impressive to see this committee deal with

these bills in the last Congress and hopefully in this Congress on

an almost unanimous bipartisan basis, this bill in particular on a

unanimous basis. We very much appreciate the bipartisan leadership that you, Mr. Chairman, and Ranking Member Davis have

shown here to help create the context for which this happened; also

the leadership that Representative Platts has shown.

This issue is being considered at a time when the public as been

deeply concerned about corruption and ethics concerns in Congress.

Government integrity reforms matter. People often like to say that

you can’t legislate morality, and that is probably true. But you can

legislate the way people conduct their affairs, you can legislate conduct. And Government integrity reforms have done that, they have

been successful in the past. A number of Government integrity reforms over many years in Congress have worked.

The opportunity to enact these kinds of reforms comes in cycles.

And it usually comes when problems get out of control, and we are

in such a period now. This Congress is off to an excellent start, in

our view. The House ethics reforms enacted in January were landmark reforms. The Senate has passed similar reforms. Most of the

reform efforts to date have focused on Congress and we are pleased

that this committee is focused on reforms that are needed in the

executive branch.

The bill this committee reported out last year, as I mentioned,

was reported out 32 to nothing, unanimous bipartisan support. We

take that to mean that it reflects a consensus view on this committee about the proposals that were contained in that legislation. I

would like to just add a few thoughts on three sections of the executive branch reform bill.

The contacts provision would bring sunlight to the process. That

is important, and it is valuable. It would provide the public with

a much clearer picture of the efforts being undertaken to influence

the executive branch. The information according to the legislation

would be made available in a searchable data base at the Office of

Government Ethics. I would just add and recommend that the committee make clear that that data base should be made available on

the Internet to the public, so citizens can get direct access to this

information. If the information is not available on the Internet, you

greatly limit the ability of people who can go over to OGE and

check out the reports and information.

We also very much support the changes being made in the revolving door provisions. We recommend that in addition to increasVerDate 11-MAY-2000 13:48 Dec 10, 2007 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 C:\DOCS\38583.TXT HGOVREF1 PsN: HGOVREF1
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ing the revolving door provision to 2 years, that the committee, as

Dr. Thurber said, look to the definitions in the lobbying disclosure

bill and include lobbying activities as well as lobbying contacts in

the restriction. If you are trying to create a cooling off period between an executive branch official leaving and taking advantage of

the contacts, information, etc., that he had while at the executive

branch, then lobbying contacts, in our view, is too narrow, and it

should go beyond to the definition contained of lobbying activities,

planning, strategizing, arranging for a lobbying effort.

We also support and think it is an important addition to cover

the reverse revolving door problem. That is a very important issue.

The idea of someone coming into executive branch from an organization and immediately turning around and making decisions to

provide grants or policy positions to that organization is not defensible. This would really extend this idea, perhaps for the first time.

We also support your effort to extend this to Government contractors.

In conclusion, this is good legislation. It is important legislation.

It advances the interests of the public in knowing what is going on

in the executive branch. It is a good balance in terms of the revolving door provisions which have to be balanced between protecting

the integrity of Government decisions and allowing people to come

back and forth in Government. We think the committee did a very

good job last time, and with the suggestions we made, we very

much support this legislation.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Wertheimer follows:]

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Chairman WAXMAN. Thank you very much, Mr. Wertheimer.

Dr. Holman.

STATEMENT OF CRAIG HOLMAN

Mr. HOLMAN. Chairman Waxman, Ranking Member Davis, I

want to thank you for the opportunity to testify on behalf of Public

Citizen and our 100,000 members.

I also want to echo Mr. Wertheimer’s praise for the work of this

committee when it comes to lobbying and ethics reform. A lot of

good work has come out of this committee, and praise is appropriate.

In order to address the wave of scandals that has swept over

Washington, DC, the debate, as this committee recognizes, must include lobbying and ethics laws as they relate to the executive

branch. As documented in this report, A Matter of Trust, which

was put together by a coalition of 15 different civic organizations

called the Revolving Door Working Group, we analyzed at least two

major issues that need to be addressed when it comes to lobbying

and ethics in the executive branch. I ask that this report be entered as part of the record.

Chairman WAXMAN. Without objection, so ordered.

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Mr. HOLMAN. One of the first issues which both the witnesses

here brought up already is the revolving door. The term revolving

door is when corporations or other special interests develop a very

close relationship with Government through the moving of key individuals back and forth between the private sector and the public

sector. Efforts to regulate the revolving door, the current efforts,

have fallen short on at least three different reasons.

First, the recusal requirements for former private sector employees who are now public officials with oversight over their same

businesses are very weak, often allowing a newly appointed official

to take actions that affect their former employers. In many instances, recusal is merely advised. It is not mandatory. It is up to

the official him or herself to determine whether or not an actual

conflict of interest exists and the conflict can be easily waived by

the ethics officer of that particular division.

One of the second problems is, thought there is a 1-year cooling

off period prohibiting procurement officers from taking jobs with

companies that they have issued contracts to, it applies only to divisions within the same company, not the company itself. And

third, while Federal law prohibits former covered officials from

making direct lobbying contacts for 1 year, it does not apply to lobbying activities as defined by the LDA. Lobbying activities includes

engaging, organizing, strategizing, overseeing the entire lobbying

drive itself. And that is not subject to the cooling off period, which

allows former officials to immediately spin through the revolving

door and become lobbyists, registered lobbyists or conducting lobbying activity.

The executive branch Reform Act goes a long way toward helping

address these problems in the executive branch. First of all, it

strengthens recusal requirements, which is excellent. Third, it prohibits negotiating future employments by public officials with companies that have business pending before them. And third, it does

extend the revolving door lobbying contact prohibition from 1 year

to 2 years.

Public Citizen encourages the committee to consider some

strengthening amendments beyond that. Most importantly, extend

the scope of the revolving door prohibition to include a very narrow

definition of lobbying activities: those activities that are done specifically at the time with the intent to facilitate a lobbying contact.

That should be included within the cooling off period. Second, the

cooling off period for former procurement officers should apply company-wide, and not just to divisions within the company.

The second issue that I want to briefly touch upon is ethics oversight in the executive branch. The Office of Government Ethics is

charged with ethics oversight, and they are a very professional organization, a very well trained agency. The problem is, they have

three structural flaws by statutes. One is they are only advisory

agency. They have no actual authority to do much other than advise and try to educate and train the other executive branch officials.

Second, responsibility for ethics is dispersed among more than

6,000 ethics officers within the various agencies of the executive

branch. They are the ones who are actually making the decisions

on ethics. There is no oversight, there is no uniform interpretation

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and application of the ethics rules. And third, OGE does not serve

as a clearinghouse for public records. As a matter of fact, they don’t

even have a public reading room to go there and peruse, for the

public to peruse through these records. The executive branch Reform Act does a lot to help strengthen oversight. It does provide a

systematic record of lobbying contacts and it strengthens the waiver process for conflict of interest.

But I would like to also recommend that some fundamental restructuring needs to be done with OGE. They need to be made not

an advisory agency but an actual watchdog agency that has the authority to promulgate rules and regulations and monitor compliance. No one else is doing this. Second, they must be made into a

central clearinghouse for public records. There is nowhere to go to

find out what is going on when it comes to ethics and contracting

in the executive branch. There is no Web site, there is no library.

OGE would be perfectly situated to be that central clearinghouse.

Thank you.

[The prepared statement of Mr. Holman follows:]

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Chairman WAXMAN. Thank you very much.

I want to thank the three of you for your presentation and your

suggestions. I think we all look at them very carefully.

Last Congress, when we introduced this bill, we also looked at

the contacts that Jack Abramoff and his lobbying team had with

the executive branch. We found that there were 485 instances of

lobbying contacts that Mr. Abramoff or his associates had with

White House officials. These included 185 meetings over meals and

drinks, many at expensive restaurants throughout Washington.

There were also 82 meetings, phone calls or other interactions with

the Office of Senior Advisor to the President, Carl Rove, and 17

such contacts with the White House Office of Political Affairs. That

is one thing we found.

Second, we found that there was no record of any of these contacts, and when Scott McClelland, the White House spokesman,

was asked about Mr. Abramoff’s White House contacts, he asserted

‘‘there were only a couple of holiday receptions that he attended,

and a few staff-level meetings on top of that.’’ We reviewed the

lobby disclosure forms and they provided almost no information. All

they said was that members of Mr. Abramoff’s team contacted the

Executive Office of the President on behalf of certain clients. We

had to launch a 7-month investigation simply to understand the

number of times Mr. Abramoff and his lobbying team contacted the

White House and the issues they were lobbying on.

I feel, and I gather from your testimony you also feel that we

need to strengthen current law which is inadequate, insufficient.

We need more disclosure about the interactions between lobbyists

and executive branch officials.

But some people have said to me, if you have to keep a log of

all of these contacts, and it is on the golf course, it is a social reception, people may forget and therefore be attacked as having violated the ethics rules. Does that bother you? What kind of burden

will that put on people to keep track of all these casual interactions, which may well be very much a lobbying contact but unexpected, not a set meeting? Dr. Thurber.

Mr. THURBER. It doesn’t bother me. In fact, the Abramoff contacts in oral and written communication right now should have indicated the time spent as well as the amount of money spent as

well as the subject matter. And it should have included where, according to the law. And that is with respect to the formulation,

modification or adoption of Federal legislation and rules, regulations, policies or administration of a Federal program including

Federal contract, grant or license.

I want to emphasize that, because there is a whole lot of lobbying

going on with contracts in Washington. I have said this before, I

think we need to make that transparent. I think that this is a reasonable thing to ask a public official to do in our democracy. It will

bring trust and it will bring more transparency so we can ferret out

problems.

That is one of the obligations of public service, in my opinion, is

to let people know what you are doing. And if it is on a golf course,

so be it.

Chairman WAXMAN. Mr. Wertheimer.

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Mr. WERTHEIMER. Obviously it is easier to keep track of this information when it is happening in offices. Executive branch officials are going to have schedules of who they met with often. I

don’t think it is a hindrance to cover other activities. I think every

executive branch official should be on notice that if something

starts to come up, they can just cut it off and say, I am not here

to discuss this. This is not the time or place.

Now, I would also just note for the committee’s information that

in other aspects of lobbying disclosure laws like, for example, the

requirement that lobbying organizations report how much money

they have spent in a quarter, the concept of good faith estimate has

been used there. That is a little trickier when you are dealing with

specific meetings. You could, if you wanted to, try to devise some

type of protection there against inadvertent problems for meetings

that don’t take place in the office.

For us, we are comfortable with the provision the way it is. But

we also point out that there are other ways of both imposing this

requirement while leaving a little room for inadvertent mistakes.

Chairman WAXMAN. Thank you very much.

Dr. Holman, did you want to comment on that?

Mr. HOLMAN. It is an excellent proposal, as long as it is implemented exactly the way it is intended. The straw man argument

that is imposed against reporting of lobbying contacts is some of

the examples that you were bringing up, that if I walk through the

hallway here as a registered lobbyist and I accidentally run into

covered officials, I have to start reporting that I ran into covered

officials.

That is not the intent of this, or even at social events, quite

frankly. That is not the intent of this sort of lobbying contact disclosure. The intent is to use the definition of lobbying contacts and

lobbying activity as defined in the LDA. That is having a contact

and a discussion that is specifically designed to promote a particular legislative issue, an actual lobbying contact. It is not burden at

all to require lobbyists, and speaking as a lobbyist, to require us

to record, or public officials to record contacts we have had with

covered officials for lobbying purposes.

I know everyone I run into who I am lobbying. It is no problem

for me to record this. And it should not be any problem for anyone

else.

I would probably limit it to oral and in-person contacts, as opposed to written contacts. A lot of organizations will send out these

fax blasts and stuff. I don’t think that is what is intended to be included in that provision.

Chairman WAXMAN. Thank you.

Mr. Davis.

Mr. DAVIS OF VIRGINIA. Thank you. We have gotten some comments from the Office of Personnel Management, and I wonder if

you could address them. One of the concerns is a concern of this

committee, too, but OPM has recently predicted that a peak of Federal retirements will occur between 2008 and 2010 and that the

loss of so many individuals with a deep, ingrained institutional

knowledge of their agency has the potential to cause a lapse or

pause of service delivery.

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The concern is if you were to extend the time from 1 year to 2

years that this would in fact hasten many of these individuals leaving. Their comment is, although these provisions are intended to

address recent unethical conduct of Government procurement officials, the provisions may have the unintended effect of harming the

career prospects of the overwhelming number of honest, experienced Government employees and encourage such individuals to

leave Government service early.

They note that a January 2006 report by the Office of Government Ethics to the President and Congress noted numerous concerns about the impact of laws restricting post-Government employment, including a statement from the National Academy of

Science that ‘‘The laws restricting post-Government employment

have become the biggest disincentive to public service.’’ How do we

balance this? I would be very interested in your comments.

Mr. WERTHEIMER. I think the legislation does balance it. The

committee report starts off, and you mentioned this, I believe, Mr.

Davis, this is a balancing act. You are trying to both protect the

integrity of Government decisions and the ability of the public to

have confidence that those decisions are being made in their interest with the ability of people to enter and leave the Government.

However, Government service is a privilege. It is not an obligation. When you make a judgment or if you are serving in that position, part of your responsibilities is to do it in ways that protect

ultimately the ability of citizens to be confident in how their Government is functioning. The problem raised about, this will affect

people potentially prematurely leaving, is a problem that exists at

any time that you would make this kind of decision. We think a

2-year period is fair and appropriate. And as you know, there have

been longer periods proposed in the past.

So I just, I don’t think that argument holds up here. People have

to adjust and keep in mind when they join the Government that

they are working for the Government under a set of rules that are

important for the interests of citizens. I don’t think that argument

holds up.

Mr. DAVIS OF VIRGINIA. Before you comment, Doctor, let me just

throw out this. We sit here trying to recruit very high level professional and technical people. We held a hearing here last week

where the Coast Guard got up and said, we outsource because we

don’t have the in-house capabilities, we can’t find the capabilities

of getting people in to do some of these high level jobs. And of

course, once you outsource it, you lose any kind of control whatsoever. So that is part of the balancing as we look through this in

terms of seeing what unintended consequences could result.

Dr. Thurber.

Mr. THURBER. As part of that, just to comment on that, and it

has always been this way, it might be with respect to salaries and

the fact that contractors pay or think tanks or whoever pays a

much higher salary sometimes for people to do the jobs that are

needed inside, so people do not want to leave when they have the

opportunity to do it through a contract.

I just want to point out that when individuals at a certain level

leave Government, they have under the law the obligation to report

back to the Office of Government Ethics. They have an ethics offiVerDate 11-MAY-2000 13:48 Dec 10, 2007 Jkt 000000 PO 00000 Frm 00176 Fmt 6633 Sfmt 6633 C:\DOCS\38583.TXT HGOVREF1 PsN: HGOVREF1
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cer for the rest of their life, their professional life now. And the

ones that have a lot of integrity continue to ask, is this OK, is this

OK.

That is where most of these people are in terms of their own personal ethics. It is the ones that are on the edge that this is about.

I think it deals with that.

The same could be said about staff members on Capitol Hill. The

comment is that, well, if there is an extension of the 2-year cooling

off period, many very fine staff members will leave. I don’t think

that is a problem. People are in this for public service, they know

full well that they are not going to cash in and leave and work exactly on the issues that they were working on on the Hill or in the

executive branch. I don’t see this as a problem. I think you have

balance in the bill.

Mr. HOLMAN. May I add a quick comment to this? I understand

it is a balancing act. No one who’s pushing for a stronger revolving

door restriction is seeking to make anyone unemployable, or to impede employment.

But imagine what is being asked here. The balancing act is in

regards to the conflict of interest. A procurement officer, for instance, certainly can go to work for the certain industry in which

they may have had regulation over. The conflict of interest is when

it involves a specific company in which they had oversight of a contract.

What is being asked by saying, this is an inconvenience, is saying that we should get rid of the policy that prohibits a procurement officer from getting a job with the same company in which

they are negotiating a contract or awarding a contract. That conflict of interest is just too grave, and we have seen it abused too

often to pretend it doesn’t exist.

Chairman WAXMAN. Thank you very much.

Mr. Tierney.

Mr. TIERNEY. Mr. Chairman, I have no questions of the panel.

Thank you.

Chairman WAXMAN. Then let’s go to Mr. Yarmuth.

Mr. YARMUTH. Thank you, Mr. Chairman. I appreciate the remarks of all the panel.

I have a question about the reporting requirements. I will play

devil’s advocate for a second. Coming from a media background, I

was a journalist for some period of time before entering Congress.

I strongly support all transparency initiatives.

Is there a risk here by requiring things, reporting of contacts

when anybody trying to influence Government policy, that we are,

we would be essentially creating suspicion of something that is a

perfectly legitimate activity? When the Congress dealt with problems involving lobbying of Congress, we talked about gifts and trips

and improper inducements. We didn’t talk about contacts, because

we are contacted every day. That is part of our job, to talk to people trying to influence public policy.

So if a public citizen came to lobby me, for instance, and I report

that, it is perfectly legitimate, that is what Government is about

and lobbying is about, and we are not ready to outlaw lobbying and

wouldn’t presume to do so. But is there a risk that we are creating

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some kind of negative connotation to the actual act of lobbying by

enforcing reporting requirements of all contacts?

Mr. THURBER. Under first amendment rights, you had the right

to be a reporter and citizens have the right to organize and petition

Government for grievances. I think that it is a legitimate activity

in this democracy and most citizens know that when they get involved with groups. I think that more transparency but also enforcement of existing law just helps improve trust in Government.

And it doesn’t create suspicion.

If there is suspicion about a particular activity, then it should be

brought out and the media and others should look at it and make

a judgment. I don’t see this as a problem of creating more suspicion

in the administration of programs.

Mr. WERTHEIMER. I would say sure, there is a risk. But the risk

is outweighed by the value of transparency. And the transparency

problem is a particular problem for the executive branch. I am not

just talking about this particular executive branch. We do live in

a time where part of the basic concern among citizens is whether

people with influence have too much influence and it comes at their

expense. I think the process can and will adjust to understanding

that people meet with executive branch officials. When question

arise out of those meetings, either they will be tied to legitimate

concerns or not. And in the end, I just think we have come to a

point where we need this kind of transparency for the interest of

the public and the executive branch.

So while I don’t discount the question you are raising, I do think

it is outweighed by the gains that will occur.

Mr. HOLMAN. First of all, I couldn’t imagine it being a black

mark on anyone’s record to be lobbied by Public Citizen. But if it

is, the suspicion already exists. And the suspicion is because there

are no public records of this. So most Americans believe there is

this black hole going on here on Capitol Hill in which lobbyists are

manipulating lawmakers and lawmakers are trying to manipulate

lobbyists, and it is something going on here in which most Americans will respond to public surveys saying, the Federal Government

is being run by lobbyists and special interests and it does not take

into consideration my interests. So that suspension is already here,

it is already widespread.

If we are going to try to address that type of suspicion, disclosure

is the best very first step to take.

Mr. YARMUTH. Well, the followup, and I think I know the answer, but I would like to get it on the record anyway, is why would

then we not impose the same requirement on ourselves?

Mr. WERTHEIMER. I think it is something you should consider.

Mr. YARMUTH. Be careful what you ask for, right?

Mr. WERTHEIMER. Yes. And it is an issue faced with respect to

the lobbying disclosure bill that will come forward probably next

month in the House.

Now, there is an apples and oranges here. You do have to analyze the situations in terms of their own facts. As I think you may

have mentioned, you are dealing with constituents all the time.

The process in the House is not the same as the executive branch.

You have to take recorded votes. You are out with a lot of policy

positions. Whatever concerns people may have, the process in ConVerDate 11-MAY-2000 13:48 Dec 10, 2007 Jkt 000000 PO 00000 Frm 00178 Fmt 6633 Sfmt 6633 C:\DOCS\38583.TXT HGOVREF1 PsN: HGOVREF1
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gress is a far more open process than the executive branch decisionmaking process.

On the other hand, there is a question of whether the contacts

between people who are being paid to influence Congress should be

disclosed, disclosed by the lobbyists, the lobbying organizations.

There are various ways of doing that, and there are ways of balancing that. It might be, for example, that if a lobbying organization or a lobbyist contacts your office in a corridor, that ought to

be listed, that every single report contact doesn’t necessarily have

to be listed.

You do have to analyze that problem, in my view, in terms of the

Congress, and not just assume it is the same. But it is something

that ought to be seriously considered here.

Mr. THURBER. I agree with Fred. I was asked that question before the Senate Rules Committee and the House Rules Committee.

I think that it would not be too onerous for you to, as members,

record that with respect to paid lobbyists that fit under the Lobby

Registration Act. Not all contacts with all kinds of people.

By the way, in terms of transparency, you might look at the

transparency in this act with respect to lobbying the executive

branch in the same way that Sarbanes-Oxley brings transparency

and credibility to the accounting with respect to major corporations. I have worked with the Committee on Economic Development as a business-oriented think tank and they feel that ‘‘Sarbanes-Oxley should be applied’’ in some ways to the lobbying activity. They want even more transparency and recording. That is from

a bunch of CEOs from major corporations.

Mr. YARMUTH. Thank you.

Mr. HOLMAN. Just very briefly, if I could——

Chairman WAXMAN. Every question does not have to be answered by every witness, and we have other Members waiting. So

if the gentleman will wait and see, maybe you can respond to another question.

Mr. Platts, do you want to ask anything of this panel?

Mr. PLATTS. No questions, Mr. Chairman. I just appreciate all

three of our witnesses for their efforts, not just here today in supporting the efforts of a more open and accountable Government,

but in their organizations over the course of many years. We appreciate your good work.

Chairman WAXMAN. Thank you, Mr. Platts.

Ms. Watson.

Ms. WATSON. No questions, thank you, Mr. Chairman.

Chairman WAXMAN. Mr. Braley.

Mr. BRALEY. Thank you, Mr. Chairman, Ranking Member Davis.

I believe, Dr. Holman, you were the one who raised the issue of

recusals in your testimony, is that correct?

Mr. HOLMAN. Yes.

Mr. BRALEY. And as I understand it, the existing practice is that

the agency head or official in question has a self-determination on

an appropriate circumstance under which a recusal might be necessary?

Mr. HOLMAN. That is correct.

Mr. BRALEY. Is there no means available for any outside interested party to raise the issue of recusal based upon some of the

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same concerns that we have been talking about here today and is

that addressed at all under the new legislation that is being considered?

Mr. HOLMAN. As the procedure currently exists, it is the public

official’s responsibility at first to make any determination whether

or not a conflict of interest does arise. There is no mechanism in

which there are other avenues for outside persons to try to claim

that recusal should have been granted, other than of course trying

to go through the press and creating that kind of problem. There

is no internal mechanism.

This legislation goes a step further by requiring recusal where

such a conflict of interest would exist. It does not in itself establish

a procedure in which there would be alternative means of determining that. But merely by the fact of requiring a recusal, the ethics officers are going to be compelled to develop procedures in

which it isn’t left up to the public official to determine whether a

conflict of interest exists.

So at that point, I would suspect the regulations, it would be developed.

Mr. BRALEY. Has Public Citizen, or any other group, to your

knowledge, come up with recommended language on how such a

procedure could effectively be implemented when such a procedure

has existed for many, many years in the judicial system to raise

issues of recusal regarding a particular judge that gives parties

that opportunity to do so in an environment that is orderly and allows their concerns to be raised?

Mr. HOLMAN. The general procedure that Public Citizen has argued for dealing with the recusal problem is to ensure that there

is oversight by a single entity or a single agency. It has to be a determination and a promulgation of rules and regulations set up by

an oversight group including over judges. But in the case of the executive branch, we would leave it up to the determination of the

Office of Government Ethics to formulate how that sort of recusal

process would operate.

The important thing is that it is the responsibility of a single office as opposed to what currently exists where you have literally

6,000 different ethics officers for all the different agencies and departments left with the responsibility to determine what is going

on. That is where we have basically chaos when it comes to ethics

and ethic oversight. A single agency would help address that problem.

Mr. BRALEY. I am going to address this to the entire panel.

Under the section dealing with stopping the revolving door and the

prohibition on negotiation of future employment, one of the exceptions provides for waivers under exceptional circumstances. I am

just trying to get my head around this concept and ask if you can

describe for me potential areas where exceptional circumstances

might exist to justify such a waiver?

Mr. THURBER. I was troubled with that. I cannot define that. I

would do away with all waivers. Maybe my colleagues could help.

But I would just do away with all of them in terms of negotiation

for future employment.

Mr. WERTHEIMER. I don’t think any of us know the genesis of

that provision. And so it is hard to comment on why it is needed

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or what specifics it is intended to address. Someone had something

in mind in the drafting of that provision. But it does raise the

question you raised, what are exceptional circumstances.

Mr. HOLMAN. There is always the conceivable situation in which

work has been done by a public official and has to be completed in

the next week or 2 weeks or something. So the situation is so immediate that someone else could not possibly step into the shoes.

I would imagine that was what was in mind by the exceptional circumstances, although I would really, really strongly urge that any

such exceptional circumstances be exceedingly rare in granting any

kind of waiver.

Mr. BRALEY. Thank you. I yield back the balance of my time.

Chairman WAXMAN. Thank you very much, Mr. Braley.

Mr. Shays, do you have any questions of this group?

Mr. SHAYS. Mr. Chairman, because I was not here, do you have

any other members who can ask questions? Well, then, I would just

make the statement, I am happy you are doing this issue, and

apologize to our witnesses. I happen to believe one of the best protections of abuse in our Government is to have a strong whistleblower statute. It was one of the things that my subcommittee

spent a lot of time on, now Mr. Tierney’s committee, spent a lot of

time dealing with, is how we protect people who are aware of

things that are not happening properly and put an end to it.

Chairman WAXMAN. Thank you very much.

I want to thank the three of you for your testimony. We will certainly look at the recommendations you offered us to improve the

legislation. Thank you very much.

We have four witnesses on our second panel. Dr. William Weaver

is a distinguished professor at the University of Texas, and is here

representing the National Security Whistle Blowers Coalition.

NSWBC was created to advocate for an enhanced whistleblower

protection for national security, Federal and contractor employees.

Nick Schwellenbach is an investigator on the Project on Government Oversight [POGO]. It is known for its expertise in Government oversight and accountability. Tom Devine is the legal director

of the Government Accountability Project. GAP, perhaps longer

than any other organization, has been advocating for the restoration of Federal employee whistleblower protections. Mark Zaid is

an attorney with the law firm of Krieger and Zaid, and has represented numerous whistleblowers. He is a noted expert on the

State Secret Privilege issue.

We are pleased to welcome each of you to our hearing today.

Your prepared statements are going to be made part of the record

in its entirety. What we would like to ask you to do is to summarize in around 5 minutes. But it is our practice to swear in all witnesses that appear before this committee. So if you would please

stand and raise your right hands, I would like to administer the

oath.

[Witnesses sworn.]

Chairman WAXMAN. The record will indicate that each of the witnesses answered in the affirmative. Dr. Weaver, why don’t we start

with you?

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STATEMENTS OF WILLIAM G. WEAVER, PH.D., ASSOCIATE PROFESSOR, UNIVERSITY OF TEXAS AT EL PASO; NICK

SCHWELLENBACH, INVESTIGATOR, PROJECT ON GOVERNMENT OVERSIGHT; THOMAS DEVINE, LEGAL DIRECTOR,

GOVERNMENT ACCOUNTABILITY PROJECT; AND MARK S.

ZAID, ATTORNEY, KRIEGER AND ZAID, PLLC

STATEMENT OF WILLIAM G. WEAVER

Mr. WEAVER. Thank you, sir. I will be brief.

National security for the last 60 years, at least as it has been

employed by the President of the United States, has been ever-expanding and less subject to oversight and many other areas, the executive branch. It has crystallized into a prerogative, really, rather

even more that a constitutional right or privilege.

And it has gone from statute, the first statute or the first Executive order that concerned classification of material under Franklin

Roosevelt in 1940 was based solely on statutory authorization and

then it has gone in the 1960’s and 1970’s from statutory authorization to constitutional right under Article 2. And then now it is

being forwarded, the power of the President, to segment off information from public disclosure or disclosure to Congress based on

something that is even beyond a constitutional privilege, which is

a right under a theory of the unitary executive, where the President of the United States is first in line ahead of Congress and the

Judiciary in the protection of the United States and the public’s

business.

Congress has made no such progress. The engine of national security has converted the Presidency, the institution of the Presidency, into a 21st century institution. But Congress, at least when

it concerns national security, has been a 20th century institution

attempting to check the power of a 21st century Presidency.

Secrecy is now a central axis of the executive branch. It is spread

to cover many areas that historically have not been subject to secrecy. There are agencies now such as Health and Human Services,

Environmental Protection Agency, Department of Agriculture,

which have original classification authority which did not have

original classification authority until this administration.

And we have seen the use of national security exemption under

FOIA in ways that it was probably never intended to be used. Most

recently I filed a lawsuit against the DEA under FOIA, and for the

first time, as far as I can tell, the DEA is refusing to give part of

the information requested on the basis of exemption one, which is

the national security exemption under the Freedom of Information

Act. In that case, there is no national security matters involved. It

was simply a case of criminal nature, where the ICE, Immigrations

and Customs Enforcement, was running an informant who, with

ICE’s foreknowledge, committed up to 12 homicides in Juarez, Mexico.

So national security is being more clearly used to cover up embarrassment rather than protect the Nation from attack or from divulging information that would help our enemies.

You guys play for the Article One team. And for recent years,

Congress has been batting for the Article Two team to some degree.

This legislation that has been introduced by the chairman and by

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other members of the committee is an excellent step in the right

direction. There are a number of very good aspects to the legislation, the Whistleblower Protection Enhancement Act Of 2007, first

as the extension of protections to intelligence and counter-intelligence employees, which has not happened before. Historically,

those agencies have been exempted from giving protection.

Second, the statute prohibits denying, suspending or revoking a

security clearance in reprisal for whistleblowing. This is a direct

and welcome challenge to one of the main tools intelligence and

counter-intelligence agencies employ against whistleblowers. People

are held hostage by their jobs, their security clearances, and have

to choose between their careers and their conscience.

Likewise, the time requirements that are in the statute are very

good, because they help move along the process which historically

has been plagued by delay. And finally, the extension of protection

to employees in non-covered agencies who are seeking to disclose

wrongdoing that requires divulgence of classified or sensitive material is also an excellent provision of the statute. All in all, it’s a

very good statute, which the NSWBC happily supports.

Unfortunately, there are several things in the statute that are

problematic. First is that what is an authorized Member of Congress to receive information that is classified. The term authorized

will be interpreted by the executive agencies to mean those Members of Congress who have been cleared to receive the information

from the whistleblower.

In the past, there have been problems that have arisen because

the executive branch believes that it has plenary control over classified information and therefore it is within the executive branch’s

purview to determine who is authorized. Recently, in a NSA whistleblower case, the NSA whistleblower was told that he could not

divulge information even to the House Permanent Select Committee on Intelligence or the SSCI, because they had not been cleared.

They were not authorized to receive that information. So authorized Member of Congress creates one difficulty, perhaps.

The second matter is that all circuits review should be in the legislation. It shouldn’t be solely confined to the Federal circuit, I believe, because the Federal circuit has been unfriendly, to say the

least, to whistleblowers.

Finally, the State Secrets Privilege, the way the bill attempts to

handle it, it allows for resolution in favor of the plaintiff of any

particular issue or element that is challenged in a lawsuit by the

State Secrets Privilege. But it doesn’t seem to deal with cases

where the Government says that the whole lawsuit should be

thrown out, because the State Secrets Privilege requires dismissal,

because the very nature of the suit is secret. So we have suggested

in our testimony language from the National Whistleblowers Center and language from us, the National Security Whistle Blower

Coalition, to fix that problem.

[The prepared statement of Mr. Weaver follows:]

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Chairman WAXMAN. Thank you very much, Dr. Weaver.

Mr. Schwellenbach.

STATEMENT OF NICK SCHWELLENBACH

Mr. SCHWELLENBACH. Chairman Waxman, Ranking Member

Davis and other members of the committee, thank you for inviting

me to testify today in support of the Whistleblower Protection Enhancement Act of 2007. I am Nick Schwellenbach of the Project on

Government Oversight, an independent non-profit that investigates

and exposes corruption and other misconduct in order to achieve a

more accountable Federal Government.

POGO is also part of the Make it Safe Coalition, a coalition of

groups that work with whistleblowers and seek to improve their

protection from retaliation. I am also on the steering committee of

openthegovernment.org, a bipartisan coalition of groups that seek

to reduce excessive Government secrecy. I would like to thank

Waxman, Platts and Shays for their leadership on this issue.

I would also like to congratulate your committee’s efforts to put

teeth into the Whistleblower Protection Act. These efforts lay the

groundwork for effective Government accountability. This is an important hearing and whistleblower protections need to be greatly

improved if the executive branch, regardless of who is in the White

House, is to be held accountable by the legislative, as our Nation’s

founders intended.

While whistleblower protections are commonly viewed as rights

for Federal employees, they are more than that. Whistleblower protections also protect Congress’s rights, the right to know the actions of the Executive, to oversee implementation of law, and to fulfill its constitutional obligations as a separate and co-equal branch

of Government.

The free flow of information from Government employees to Congress enables the Congress to fulfill its duty of overseeing the Executive, as I stated before. But the Executive, as my colleague Bill

Weaver has just mentioned, has been increasingly assertive in telling Congress that it does not have the right to receive information,

especially from disclosures made outside of official channels.

In the realm of national security, the Executive has long argued

that it has exclusive control over classified information and that its

employees may not provide this information to Congress without

approval. But the Executive has gone even further by advancing

the constitutionally questionable unitary executive doctrine in a

dangerously expansive and overreaching interpretation of executive

privilege.

In 2003, a highly publicized and troubling event concerned the

silencing of Centers for Medicare and Medicaid Services’ chief actuary, Richard S. Foster, on the cost of the Medicare prescription

drug plan. Foster was threatened with termination for speaking to

Congress. Both the CRS and GAO issued legal opinions finding

that the effort to silence Foster was an unlawful violation of the

Lloyd LaFollette Act of 1912. In order to assert its unassailable

right to oversee the Government, Congress has since 1988 approved so-called anti-gag provisions and annual appropriations bills

that prohibit managers from silencing whistleblowers. Recently,

many air marshals at the Federal Air Marshal Service have told

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us about a troubling trend of management retaliating against them

for their communications with Congress. One air marshal, P. Jeffrey Black, made disclosures which sparked a major House Judiciary Committee investigation last year.

And another case, which we should all being paying attention to,

occurred over 10 years ago. Richard Barlow, a Defense Department

analyst, who was unraveling the AQConn network in the late

1980’s, had a security clearance revoked for simply suggesting that

Congress be informed that Pakistan was peddling nuclear wares

across the globe. He was then fired. He did not go to Congress initially, he just suggested the idea of doing so, because there was a

law which made arms sales to nations that were engaged in nuclear proliferation illegal.

We are pleased that the legislation before you makes these agency policies which silence employee communications with Congress

illegal, but more should be done to ensure enforcement, which they

have never been enforced, these anti-gag statutes. Passed in 1989,

the Whistleblower Protection Act was intended to provide a mechanism for civil service employees to challenge retaliation and disclose waste, fraud and abuse. But despite the rights the act provides on paper, it has suffered from a series of crippling judicial

rulings that are inconsistent with congressional intent and the

clear language of the act.

The Federal Circuit Court of Appeals currently is the only court

that can hear an appeal from the Merit Systems Protection Board.

And it is clear from the Federal Circuit’s hostile rulings and the

2 to 177 track record against whistleblowers that it is time to end

its monopoly on jurisdiction.

More significantly, the act has failed because the agencies tasked

with implementing the promise of whistleblower protections, the

Office of Special Counsel and the MSPB, have been utter failures

since their founding. We defer to our colleague, Tom Devine, from

GAP, to speak more in-depth on this issue.

This bill will undo the crippling judicial decisions, but it keeps

jurisdiction in the Federal circuit’s hands. We also urge the committee to provide judicial review by all circuits, thus ending the

Federal circuit court’s decades-long monopoly and ensuring that

vigorous judicial opinions are rendered from U.S. district courts nationwide.

We are also pleased that your bill extends protections to TSA

screeners, FBI and intelligence agency employees. These are true

post-9/11 reforms, long overdue. Also overdue are whistleblower

protections for Government contractor employees. Spending on

Government contractors has doubled in recent years from $219 billion in 2000 to roughly $382 billion in 2005. A recent New York

Times article noted ‘‘Contractors Sit Next to Federal Contractors at

Nearly Every Agency.’’ Far more people work under contracts than

are directly employed by the Government.

Also, we are pleased that the legislation provides for a GAO

study on security clearance revocations, which are currently not

covered by the Whistleblower Protection Act. With that, I would

like to finish my testimony. Thanks.

[The prepared statement of Mr. Schwellenbach follows:]

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Chairman WAXMAN. Thanks for your testimony.

Mr. Devine.

STATEMENT OF THOMAS DEVINE

Mr. DEVINE. Thank you for inviting this testimony, Mr. Chairman.

This committee is close to approving a global gold standard for

public employee freedom of expression and a breakthrough for Government accountability. Quick passage also will be a signal that

new congressional leadership is serious about two basic commitments to taxpayers: oversight that ends a pattern of secret Government and structural reform to help challenge a culture of corruption.

Over the last 30 years, the Government Accountability Project

has formally or informally helped over 4,000 whistleblowers to commit the truth and survive professionally while making a difference.

This testimony shares and is illustrated by painful lessons we have

learned from their experience. We couldn’t avoid getting practical

insights into which whistleblower systems are genuine reforms that

work in practice and which are illusory.

Along with POGO, GAP is a founding member of the Make it

Safe Coalition, a non-partisan network of organizations that specialize in homeland security, medical care, natural disasters, scientific freedom, consumer hazards, corruption and Government

contracting and procurement. At the beginning of this month, we

held a day-long summit on whistleblower rates, and this testimony

seeks to reflect the across the board consensus that we achieved

there.

There can be no credible debate about how much this law matters. Whistleblowers risk their professional survival to challenge

abuses of power that betray the public trust. It is freedom of speech

when it matters, unlike the freedom to yell at a referee in a sports

stadium or engage in political satire in late night television. Whistleblowers risk everything to defend the public against abuses of

power. They represent the human factor that is the Achilles heel

of bureaucratic corruption. They are the lifeblood for any credible

anti-corruption campaign which will degenerate into empty, lifeless

magnets for cynicism without safe channels to protect those who

bear witness. That is the prerequisite for a meaningful congressional oversight, as demonstrated by this committee’s January

hearings on climate change censorship.

Creating safe channels for whistleblowers will determine whether Congress learns about only the tips or uncovers the icebergs in

nearly ever major investigation of the next 2 years. Let me give

you just a few examples on this.

That FDA scientist, Dr. David Graham, successfully exposed the

dangers from painkillers, like Vioxx, which caused over 50,000 unnecessary fatal heart attacks in our country. The drug was removed. Climate change whistleblowers like Rick Piltz, exposed how

oil industry lobbyists were hired by the White House to rewrite the

research conclusions of America’s top scientists. Gary Aguirre exposed the Securities and Exchange cover-ups of vulnerability to

massive corruption in hedge funds that could threaten a new wave

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ice exposed and successfully challenged keystone bureaucratic practices that repeatedly blew the cover of the air marshals we depend

on to stop the next skyjacking. Air Marshal Robert MacLean’s public protest stopped the Transportation Security Administration

from pulling all marshals from sensitive flights when they had

blown their money on pork barrel projects, and so they couldn’t afford it any more.

Mr. Richard Conrad has exposed uncontrolled maintenance and

repairs on F18s out at the North Island Naval Aviation Depot near

San Diego. That could explain why those planes keep crashing.

Whistleblowers don’t give up, either. Former FAA manager Gabe

Bruno is still challenging that agency’s failure to honestly test

more than 1,000 mechanics for commercial and civilian aircraft

who had received fraudulent certifications.

There also shouldn’t be any questions this bill is long overdue.

Our easiest consensus is the Whistleblower Protection Act has become a disastrous trap which creates far more reprisal victims than

it helps. And it has become would-be whistleblowers’ best reason to

look the other way or become silent observers. Your legislation

deals with both of the causes for that disappointing result after a

three-time unanimous mandate from Congress for the opposite.

One is structural loopholes in the law, and the other is a system

of due process, which doesn’t have any enforcement teeth. You directly address both of those problems.

Mr. Chairman, I would be glad to go into a number of examples

of why the current system has failed, and particularly the Federal

Circuit Court of Appeals which has been the Achilles heel of the

law for all three passages. In fact, there shouldn’t be any delusion,

unless we restore normal appellate review. Three will not be the

charm for the Whistleblower Protection Act, and this committee

will be reconvening in about 5 years.

The key now however is to pass the law and to have quick, expeditious results. Until that happens, whistleblowers are defenseless.

Every month that we delay means more reprisal victims who can’t

defend themselves when they defend the public.

Most anti-corruption measures are very costly in terms of our

rights and in terms of money. But whistleblower protection fights

corruption by strengthening our freedoms. And it doesn’t cost anything to listen.

[The prepared statement of Mr. Devine follows:]

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Chairman WAXMAN. Thank you very much, Mr. Devine.

Mr. Zaid.

STATEMENT OF MARK ZAID

Mr. ZAID. Good morning, Mr. Chairman, members of this committee. It is with pleasure that I testify once again before this distinguished committee.

I have been requested to specifically focus on the State Secrets

Privilege [SSP] that I will call it, I applaud this committee for taking on this topic. You are, to my knowledge, in fact, the first congressional committee in decades and perhaps ever to ever directly

focus on this privilege. The privilege is routinely exploited by the

executive branch and understandably so. The judicial branch, despite flowery rhetoric, has abdicated its responsibility for oversight

and the legislative branch has been historically silent.

Fortunately, the latter situation, as evidenced by this hearing, is

no longer. Let me state at the outset that I support the passage

of the current language in this bill about the privilege, although

admittedly, any favorable substantive impact it might have is likely too difficult to measure. But the importance of the legislation is

that it very clearly opens the door for the first time in history for

true congressional involvement in oversight. In particular, to allow

for the application of the most important type of test when it comes

to executive branch claims of classification. That is one of smell.

I know all too well the implications of litigating cases involving

national security disputes and classified information. Oftentimes,

my clients’ very identity or relationship to the U.S. Government is

a highly classified secret. I am frequently in the trenches fighting

with Federal agencies concerning access to classified information.

Over the years, I have handled or have been consulted on a number of SSP cases. I am generally aware in those cases of much of

the information that is classified. Sometimes I know the exact information that is classified, but other times, I know little to none

of what is involved.

I do appreciate, and I think this is important to note, the nature

of properly classified information. There are many secrets, as many

of you know, that absolutely need to be protected. The disclosure

of some of the information that I have been privy to over the years

could easily cause serious damage to the national security interests

of the United States and could lead to the loss of life, including

that of my own clients. And I take that prospect very seriously.

The problem is that excessive over-classification is rampant and

at times purposefully abused. Secrecy was designed to serve as a

shield to protect the disclosure of certain harmful or sensitive information. In the context of civil litigation, it is quite the opposite.

There it is, the equivalent of a two-handed sword that in one fell

swing, at the outset of a battle, decapitates the enemy. The sword

is the privilege and the enemy is fair judicial due process.

Since the privilege was created in 1953 by the Supreme Court in

United States v. Reynolds, courts routinely remind the executive

branch that its assertion is not to be lightly invoked. And as routinely as that reminder occurs, the executive branch routinely ignores it. Moreover, rarely does a Federal judge do anything other

than accept carte blanche whatever an agency head states in a

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classified declaration submitted for review in camera and ex parte.

There is no role based on current law for the plaintiff’s attorney

even when we do have security clearances to actually review that

declaration or comment on it. Essentially, it is the defendant in the

role of a batter telling the pitcher to throw the pitch that he wants

to guarantee that he could hit a home run.

In the majority of the privilege cases that I am familiar with, the

court never even gets to the point where the specific classified documents are in question. It is only the one-sided, self-serving classified declaration that is reviewed and serves as the basis for the

court’s decision. Indeed, there is no case that I am personally

aware of where the judge even verbally posed substantive questions or requested clarifying information in writing based on what

was contained int eh classified declaration.

Yet we know from the Reynolds case that a Federal agency will

mislead and arguably lie to a court in order to protect itself. The

mis-use of the classification system, especially in the context of judicial proceedings, is destructive to the fundamental tenets of our

Constitution. But the courts repeatedly hold that it is generally not

within their purview to intervene on national security matters.

Frankly, I rejected the notion that Federal judges neither have

the authority nor can exercise the expertise regarding classification

decisions. I would submit that Congress agrees with me, due to its

role in creating such statutes as the Freedom of Information Act

and the Classified Information Procedures Act, both of which allow

for judges to explicitly exercise authority in the national security

realm.

Regrettably, in 2005, 2006, the Supreme Court had an opportunity to ensure that this hearing never occurred. It had two cases

pending for certiorari, it had two others pending at the circuit

courts of appeals and at least one other at the district court. And

in briefs that I filed that made it very well known to the court that

this was happening, that the first time in 50 years they had an opportunity to clarify the ambiguity, and in each of the cases, they

declined without comment to even rule.

Instead of making that decision, they didn’t follow their own admonition in Reynolds that judicial control over the evidence in a

case cannot be abdicated to the caprice of executive officers. To put

the consequences of the privilege in some sort of understandable

perspective, I find it distressing that foreign criminal terrorist defendants receive more rights to ensure that they and their counsel

have access to classified information than do U.S. nationals who

place their lives on the line to fight against foreign criminal terrorists. The absurdity and irony of this irreconcilable discrepancy

must not go unnoticed any longer.

In my written statement, I go through some history that I won’t

repeat here. I will very briefly just point out some legislative suggestions for reform and then I can expand on any in the Q&A.

The only way that this privilege is ever going to be modified is

legislatively. It is not going to happen judicially. You have some options. You can create a special Article Three court or an Article

One administrative entity or modify existing entities, such as the

Pfizer court or the MSPB. You could adopt statutory language that

would impose clear requirements on judges to take certain steps

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before they dismiss a case in its entirety based on the privilege.

You could ensure proper education and training of Federal judges,

so that they understand what is the nature of classification and

how to protect classified information.

Certainly in the interim, an easy thing to do is to task CRS to

draft proposed statutory language to address concerns of the executive branch and consider expanding the jurisdiction of the entities

I mentioned, or task the GAO to conduct a thorough examination

of the historical invocation of the privilege and objectively analyze

some of the prior examples of classified declarations to see if what

was submitted back when meets the test back at that time or at

least now.

All these suggestions are going to require some significant work.

I am happy to work with the committee in drafting that, especially

since some of these suggestions will require the involvement of

other committees where it actually might be their primary jurisdiction. I appreciate the opportunity and thank you.

[The prepared statement of Mr. Zaid follows:]

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Chairman WAXMAN. Thank you very much. I want to thank each

of the witnesses for your presentation.

Usually when we think about an employer retaliating against an

employee whistleblower, we usually think of the individual being

fired or demoted. But the suspension or revocation of an employee’s

security clearance can have just as chilling an effect. Last year at

the National Security Subcommittee hearing on this issue we heard

from Government officials who reported abuses at our Nation’s

most secretive counter-terrorism national security and law enforcement programs and who all claimed to have been retaliated against

for trying to correct these abuses. Silencing national security whistleblowers who are attempting to report waste, fraud and abuse

places our Nation in great danger.

This bill before us would include revocation of security clearance

as a prohibited retaliation under the act. To whomever wishes to

respond, do you think that is a significant problem and you think

this provision will help better protect national security whistleblowers? Mr. Zaid?

Mr. ZAID. Yes, sir. As part of my practice, I frequently deal with

clearance matters. I think I testified at that hearing, in fact, as I

recall. One of my clients, Anthony Schaffer, of the Defense Intelligence Agency, had had his clearance stripped, revoked in the

aftermath of the Evil Danger allegations.

The problem with dealing with whistleblower retaliation and the

clearance issues are trying to draw a clear line of path between the

two. It is very difficult in experience to be able to prove that the

whistleblowing activities had something to do with the clearance,

and even in the cases that it does, very often the clearance matters

that are underlying the subject of the revocation or denial have

some arguable standing basis on their own. Anything can happen.

With Tony Schaffer, part of the allegation against him was that he

had stolen pens from the embassy when he was 14 years old, 30

years earlier. And that was being used as a pattern and practice

allegation against him, that he had mis-used his cell phone to the

tune of $67 at part of his work responsibilities.

So the key in being able to I think deal with the clearance aspect

would be, especially in whistleblowers, would be to create specific

jurisdiction, whether at the MSPB or even better, at a Federal

court level, to be able to review a substantive determination of a

clearance decision. Right now, the way it stands, no Federal court

will go anywhere near security clearance unless it is a constitutional matter.

Chairman WAXMAN. What do you think about the provisions in

the bill?

Mr. ZAID. I think the provisions in the bill are great for a start.

Chairman WAXMAN. But you would expand on it?

Mr. ZAID. I would expand, I would likely expand——

Chairman WAXMAN. Let me ask you to give us your thoughts further on the expansion. I just want to quickly ask a few questions

and you might have noticed the bells, so we are going to have to

break. So maybe even if we can complete the questioning before the

last opportunity to vote, that would be helpful.

Just very quickly, do you think it is appropriate to have scientists and medical professionals protected when they disclose

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abuses of authority? Do you all think that that is a helpful provision? Dr. Weaver.

Mr. WEAVER. Of course. People should not be penalized for telling the truth, especially when it is scientifically and objectively determined.

Chairman WAXMAN. On the appellate review issue, what we did

is, despite there is a rationale for all appeals going to the Federal

circuit, in order to have a legal landscape that is clear for all employees and employers, I would like to know how you respond to

those concerns. Do you think that allowing whistleblower cases to

go through the normal appeals process, rather than centralizing

cases in the Federal circuit court of appeals will help maintain the

integrity of the whistleblower protections passed by Congress?

Mr. WEAVER. It works for all other statutes, essentially, right? I

mean, you end up having the leavening effects of multiple circuits

looking at the same legal problem, arriving at the truth, and then

conflicts are hammered out. In the present system, there is, they

have a lock on it, they essentially have it all to themselves, it

should be all circuits review.

Chairman WAXMAN. I appreciate that. Let me recognize Mr.

Platts and see if we can get through this before the last opportunity before we have to vote.

Mr. PLATTS. Thank you, Mr. Chairman. I just want to followup

on that last point. The way we had the bill introduced is with the

Federal circuit. But I will be looking to offer an amendment tomorrow for all circuit to open it up the same as other reviews. If we

did not do that with all the other changes that we are trying to address in the bill, if we do not address and allow all circuit review,

what do you think our likelihood of success, meaning giving true

protections to Federal employees under this bill without that, given

the track record of the Federal circuit? Mr. Devine.

Mr. DEVINE. Congressman, I think until you do address that

issue, we are going to be prisoners of the broken record syndrome.

Congress has made very clear that it supports a certain boundary

of free speech rights for public servants. The Federal circuit has

made it adamantly clear that they disagree and will not accept

those boundaries.

Although stability in case law is a very worthy goal, and Professor Weaver is right, it hasn’t been a serious obstacle for other whistleblower issues, there is an even bigger issue here. Who is going

to write the law for ethical freedom of speech by Government employees?

I will just give you a few examples. This is an absolute test of

wills between Congress and one particular court. In 1994, the committee report said, it is also not possible to further clarify clear

statutory language. Protection for any whistleblowing disclosure

evidencing a reasonable belief truly manes any. Since 1994, the

court has created nearly a dozen all-encompassing loopholes so that

any means almost never.

I will give you another example. When Congress first passed this

law in 1978, the committee report said that the purpose of it is so

that Pentagon employees who disclose billions of dollars in costs

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tions of safety requirements in nuclear plants, that they can do

their jobs without retaliation.

Well, in 1996, the Federal circuit said the Whistleblower Protection Act doesn’t count for when you are carrying out your job duties. In——

Chairman WAXMAN. Excuse me, Mr. Devine——

Mr. PLATTS. Because we are short on time, am I safe in saying

that all four of you agree that all circuit review is critically important to the reforms we are pushing for?

Mr. ZAID. It may constitute legal malpractice for me to charge clients to take their whistleblower appeal up to the Federal circuit

court of appeals.

Mr. PLATTS. We are in agreement. And I appreciate, again, al of

you, I appreciate your testimony here today. Very in-depth, which

is very helpful. And your efforts leading up to this hearing, and as

we go forth.

Thank you, Mr. Chairman.

Chairman WAXMAN. Thank you, Mr. Platts.

Mr. Yarmuth and Mr. Braley, do you think you can split the next

5 minutes? Mr. Braley.

Mr. BRALEY. I have to say that I am very, very pleased to be

here. I have actually had the privilege of representing whistleblowers, and I have represented people who have been blacklisted.

One of my concerns is that even though the whistleblower protection deals with what is going on at the time a decision is made affecting an employee’s rights with an agency or Federal Government

entity, one of the concerns I have is a lack of protection of what

happens after they leave and their reputations are sullied and they

have no protection against interference with other employment

prospects. I know some of you have encountered that in your own

lives.

I am also very concerned about the lack of an adequate remedy

and the form in which that remedy occurs. Because as I read the

bill as it is currently drafted, it is limited to reasonable and foreseeable consequential damages which may or may not include interest that accrues for the lost time while those employees are out

there in a state of limbo. It may or may not include the type of

remedy that is recognized under Federal law for employees who

have been discriminated against in the workplace, which is compensatory damages for the very real problem in whistleblower

cases of the intense intimidation and emotional toll it takes upon

them. And based upon the language that appears to me to send a

mixed messages as to whether this is a legal or an equitable remedy and if so, whether it is covered by the seventh amendment of

the United States bill of rights, which would guarantee the right

to trial by jury, and I think raises a lot of the similar concerns you

are talking about with the Federal circuit right of review.

So I am saying this very rapidly but I would be interested in any

of the comments that the panelists would have about the need to

go further with this bill to provide a true remedy, even though I

am very, very pleased that we are taking the significant steps that

we are to improve the existing remedy.

Mr. DEVINE. Mr. Braley, the bill would provide access to jury

trials. It is modeled after the same language in the Sarbanes-Oxley

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law for corporate whistleblowers, which is provided that right. I

think your points are very well taken, though, about what happens

when you win. This would be the only remedial employment law,

even this legislation, if passed, that doesn’t provide compensatory

damages as part of its make-whole remedy. I think that is something for the committee to consider very seriously.

Mr. WEAVER. In the area of national security, any hint of equitable remedies are going to be vigorously challenged by the executive branch. And especially concerning security clearances, the executive branch position will be there is no equitable power to restore people to their job function, essentially.

Chairman WAXMAN. Thank you, Mr. Braley. Members want to

ask further questions and have you respond in the record in writing. We would appreciate that.

Mr. Shays, did you want to make any last minute comments?

Mr. SHAYS. Just to thank you for participating in this hearing,

and Mr. Chairman, for bringing this bill forward. It is nice to have

a Member who has had personal experience.

Chairman WAXMAN. All right. Thank you very much. That concludes our hearing, we stand adjourned.

[Whereupon, at 11:45 a.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

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