Prepared Floor Statement of Senator Chuck Grassley of Iowa
President Obama’s Signing Statement and Whistleblower Protections
Monday, March 23, 2009
Mr. President, during the height of the presidential campaign, President Obama made a number of high profile statements and promises about what actions he would take once he was elected and sworn in. These promises outlined a number of important issues such as closing the revolving door for lobbyists in the executive branch, ending the use of no-bid contracts, and curbing the influence of special interests to name just a few.
Over the years, I’ve been an outspoken supporter of legislation that would make the government more transparent and open. I’ve authored and supported a number of bills that would open the government up and make it more accountable to the citizens. In particular, I’ve been strong advocate for whistleblowers. Most importantly, I’ve always pushed the government to be accountable by conducting vigorous oversight of the federal bureaucracy regardless of which party controls Congress or the White House. I’ve been an equal opportunity overseer and have given my Republican colleagues as many headaches as I’ve given Democrats.
Given my background on oversight, I was supportive of some of the statements President Obama made as a candidate with respect to transparency and openness in government. A document on the Obama campaign website titled, “Restoring Trust in Government and Improving Transparency”, outlined ethics and contracting reform, and included a statement that, “Obama will sign legislation in the light of day without attaching signing statements that undermine legislative intent.” Candidate Obama further discussed signing statements during a campaign speech where he said that his administration was “not going to use signing statements as a way of doing an end run around Congress.” A video of that speech is available online for all to see.
I was also encouraged by candidate Obama’s promises to protect employees in the federal government who blow the whistle on fraud, waste, and abuse. In yet another campaign document, candidate Obama stated that he would “strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.” That statement was posted on the change.gov website of the Obama Transition Team for all to see. It was a welcome message to the employees of the executive branch that risk their careers and stick their necks out to alert Congress, Inspectors General, and the public about fraud, waste, and abuse in government agencies and programs.
These employees, also known as whistleblowers, often do nothing more than “commit truth”, and for it they are shunned by their agencies, coworkers, friends, and government. My colleagues have all heard me say time and again that whistleblowers are as welcome as a skunk at a Sunday picnic. These patriotic individuals believe that government can do better for its citizens. They risk everything to make sure that laws are faithfully executed as they were intended and let Congress know when something isn’t working and needs fixing. Some of the most important reforms to our laws have come from whistleblowers, be it reforming our national security and law enforcement coordination following the tragic events of 9/11, or ensuring we have clean water to drink.
Given candidate Obama’s promise to not use signing statements to circumvent the legislative intent of Congress and his pledge to support whistleblowers, I was shocked to read the signing statement he issued on the Omnibus Appropriations Bill that was signed into law on March 11. Not only did President Obama’s action run contrary to his promise not to use signing statements to circumvent the intent of Congress, he also appears to have broken his promise to strengthen whistleblower laws by singling out an important whistleblower protection provision that Congress has included in every appropriations bill for the last decade.
Sections 714(1) and (2) of the omnibus bill contains an appropriations rider that states that no appropriation shall be available to pay the salary of any officer or employee of the federal government that “attempts or threatens to prohibit or prevent, any other officer or employee of the federal government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress.” This rider was first included in appropriations bills in 1997 and has been included in appropriations bills since. It is a strong signal to all agencies that efforts to block federal employees from coming to Congress won’t be tolerated.
However, the applicability of this rider is now in question given the signing statement issued by President Obama. His signing statement, in pertinent part, stated that this provision does not “detract from [his] authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with Congress.” This statement is shocking. It acknowledges that President Obama envisions a scenario where he would order a Cabinet Secretary to supervise, control, and correct statements made by employees to Congress. The signing statement goes further to add that this authority would be used when employee communications would be “unlawful or would reveal information that is properly privileged or otherwise confidential.”
While other Presidents have objected to this appropriations rider in the past, President Obama’s signing statement is even more problematic than those because it states that he has the authority to not only restrict privileged material, but also “confidential” information. By failing to define “confidential”, President Obama has given a blank check to executive branch agencies to block communications with Congress related to an undefined, broad category of information. Even The New York Times noted that President Obama’s signing statement includes “one somewhat unclear objection” that “could be read as bumping up against the rights of executive branch whistle-blowers.” I would go further and say it does more than bump up against the rights of whistleblowers. It will chill executive branch employees from sharing information with Congress. It could also be construed to be an attempt to limit members of Congress from conducting their constitutional duty to conduct oversight of the executive branch.
I wrote to President Obama last Friday raising my concerns with his signing statement and the chilling effect it will have on whistleblower communications with Congress. To date, I have not received a response. However, I read in the New York Times that an unnamed administration official stated that President Obama is “committed to whistle-blower protections” and that the administration “had no intention of going further than did Presidents Bill Clinton and George W. Bush in signing statements concerning similar provisions.” However, that same official did not provide any detail as to why the administration added the additional term “confidential” to the signing statement. I would like President Obama to answer my letter soon and clarify exactly what he meant in his signing statement.
Absent a more detailed response from President Obama, I cannot see how his signing statement can be reconciled with the pledges and promises made by candidate Obama. Nor can I reconcile the criticism issued by candidate Obama about President Bush’s use of signing statements with the statements made by the unnamed administration source in The New York Times. That unnamed source said President Obama “had no intention of going further than did Presidents Bill Clinton and George W. Bush in signing statements.” Candidate Obama stated he would not use signing statements in a manner similar to President Bush to circumvent the will of Congress, and now a member of his administration is telling The New York Times that President Obama means to do the exact same thing as President Bush in issuing this signing statement. It seems to me that if that’s the case, candidate Obama would have a problem with President Obama’s use of signing statements to undermine the intent of this appropriations rider.
Now, a number of my colleagues were quick to object to signing statements issued by President Bush but have so far remained silent regarding President Obama’s use of signing statements. Well, to those who had concerns in the past I encourage you to take a close look at this signing statement and the potential harm it will cause for all members of Congress.
And to those who may feel that my actions are motivated by partisan politics, I want you to look at my record and see that I have repeatedly objected to signing statements that hinder the rights of whistleblowers. For example, I objected to a signing statement issued by President Bush back in 2002 that restricted the application of the whistleblower protection provisions included in the Sarbanes-Oxley law. I also objected when a signing statement was issued by President Bush impacting specific reforms contained in the Inspector General Reform Act of 2008.
In closing, I call upon President Obama to revisit his March 11 signing statement and implement sections 714 (1) and (2) in a manner consistent with the spirit and intent of the legislation. As a former Senator, he must recognize the good that whistleblowers bring by speaking out and shedding light on fraud, waste, and abuse in government agencies and programs. Candidate Obama supported whistleblowers, but based upon his recent signing statement, those campaign promises now ring hollow.
I yield the floor.