11129.150 PROCEEDINGS OF THE HOUSE SUBSEQUENT TO SINE DIE ADJOURNMENT

to both the Congress and the Execu­ tive branch. The limitation of offenses under H.R. 5043 to acts done for compensa­ tion also is of concern. There may be circumstances in which a current em­ ployee who misuses official authority or a former employee who misuses in­ fluence should be subject to penalties even though no compensation is in­ volved. In that respect, the provisions of H.R. 5043 would have failed to reach conduct that should be prohibit­ ed and thus would have significantly weakened current law. The Attorney General and the Director of the Office of Government Ethics find this provi­ sion to be particularly objectionable. I support several positive aspects of H.R. 5043 that would substantially im­ prove the effectiveness of Federal post-employment restriction laws. The bill would have granted the Attorney General the power to seek civil penal­ ties for violations of the post-employ­ ment restrictions and to obtain injunc­ tions from Federal courts to prevent impending violations. The bill also would have permitted the Attorney General to distinguish between misde­ meanor and felony violations of the restrictions in charging individuals. The bill also would have adjusted the 1-year ban on certain contacts with a former employee's former agency to make clear that it applies to matters in which the United States has a direct interest, even if that particular agency does not have a direct interest. Finally, the bill would have eliminated the compartmentalization of the Exec­ utive Office of the President for pur­ poses of post-employment restrictions. I urge that future legislation on post­ employment restrictions incorporate these positive aspects of H.R. 5043. Above all, in considering future post­ employment restrictions legislation, the Congress should focus on drafting legislation that will be clear and un­ derstandable to current, former, and future Federal employees. The bill would create a confusing patchwork of different requirements for seven cate­ gories of covered officials: “senior”, “other senior”, “very senior”, all Exec­ utive branch, Members of Congress, congressional employees, and former Presidents and Vice Presidents. The law should be clear so that employees joining the Government will under­ stand what will be expected of them when they leave, former employees will know reliably the limits on their conduct, and Federal officials charged with enforcing the law and providing advice can discharge their duties effec­ tively. In withholding my approval of H.R. 5043, I am well aware that there will be criticisms. But I must act on this bill according to my judgment of what is best for the country. While this bill would not have affected me or my Ad­ ministration, it is fundamentally flawed and would have made securing good government for America substan­ tially more difficult. I urge the Con­ gress and the new Administration to

address effectively and fairly the standards of conduct for Federal em­ ployees when the Congress convenes.

R o n a l d R e a g a n.

T h e W h i t e H o u s e , November 23, 1988.

H.R. 5 5 6 0

MEMORANDUM OF DISAPPROVAL

I am withholding my approval of H.R. 5560, a bill making technical cor­ rections relating to the “Health Omni­ bus Programs Extension of 1988,” which I approved on November 4, 1988 (Public Law 100-607). My approval of H.R. 5560 is unneces­ sary, because its provisions are identi­ cal to Title II, Subtitle G of H.R. 5210, the “Anti-Drug Abuse Act of 1988,” which I was pleased to approve on No­ vember 18, 1988. Accordingly, and in order to avoid creating further techni­ cal problems, I am withholding my ap­ proval of H.R. 5560.

R o n a l d R e a g a n.

T h e W h i t e H o u s e , November 23, 1988.

S. 508

MEMORANDUM OF DISAPPROVAL

I am withholding my approval of S. 508, the “Whistleblower Protection Act of 1988.” I regret that the Con­ gress did not present me with constitu­ tional and effective legislation to expand the protections and procedural rights afforded to Federal employees who report fraud, waste, and abuse they discover in Federal programs. Reporting of mismanagement and violations of the law, often called whistleblowing, contributes to effi­ cient use of taxpayers' dollars and ef­ fective government. Such reporting is to be encouraged, and those who make the reports must be protected. At the same time, we must ensure that heads of departments and agencies can manage their personnel effectively. Enactment of S. 508 would have rede­ signed the whistleblower protection process so that employees who are not genuine whistleblowers could manipu­ late the process to their advantage simply to delay or avoid appropriate adverse personnel actions. To ensure that Federal employees who report mismanagement are pro­ tected from reprisal, while ensuring that Federal personnel managers are not saddled with routinely defending appropriate decisions they make, I have directed the Attorney General, working with the Director of the Office of Management and Budget and the Director of the Office of Person­ nel Management, to prepare constitu­ tional and effective whistleblower pro­ tection legislation for me to submit at the beginning of the next session of the Congress. A major objection to S. 508 is its change of the factual showings re­ quired of employees in making their cases in whistleblower proceedings. Section 1221(e) of Title 5 of the United States Code, as contained in S. 508, would have interfered substantial­ ly with personnel management in Fed­ eral departments and agencies. Current law strikes a proper balance be­ tween the showings required of em­ ployees and agencies in making their cases before the Merit Systems Protec tion Board. Section 1221(e) would have removed the requirement that employees demonstrate in Merit Sys­ tems Protection Board proceedings that whistleblowing by the employee was a substantial factor in the agen­ cy's personnel action decision about which the employee complains. More­ over, that Section would have imposed the heavier burden upon the depart­ ment or agency of proving by clear and convincing evidence—which is a much higher legal standard than proof by a preponderance of the evi­ dence that applies in most civ 1 mat­ ters in American courts—tha4; the same decision would have occurred in the absence of any whistleblowing. The substantially reduced factual showing required of the employee and the substantially increased burden on agencies essentially rigs the Board’s process against agency personnel man­ agers in favor of employees. The inter­ ests of both employees and managers should be fully protected. The provisions of S. 508 also raised serious constitutional concerns. Sec­ tion 3 of the bill amends chapter 12 in Title 5 of the United States Code sub­ stituting new Sections 1201 through 1222. Section 1211 creates an Office of Special Counsel and purports to insu­ late the Office from presidential su­ pervision and to limit the power of the President to remove his subordinates from office. Section 1217 purports to prohibit review within the Executive branch of views of the Office of Spe­ cial Counsel proposed to be transmit­ ted in response to congressional com­ mittee requests. Section 1212(d)(3)(A) of Title 5, as contained in the bill, purports to au­ thorize the Special Counsel to obtain judicial review of most decisions of the Merit Systems Protection Board in proceedings to which the Special Counsel is a party. Implementation of this provision would place two Execu­ tive branch agencies before a Federal court to resolve a dispute between them. The litigation of intra-Executive branch disputes conflicts with the con­ stitutional grant of the Executive power to the President, which includes the authority to supervise and resolve disputes between his subordinates. In addition, permitting the Executive branch to litigate against itself con­ flicts with constitutional limitations on the exercise of the judicial power of the United States to actual cases or controversies between parties with concretely adverse interests. These provisions could not have been implemented to the extent that they are inconsistent with the Presi­ dent's constitutional authority and duty to faithfully execute the laws, su­ pervise his subordinates in the Execu­ tive branch, and recommend such measures to the Congress as he judges necessary and expedient, and Article

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