WASHINGTON – Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, and watchdog of the federal bureaucracy, is working to ensure that inspectors general, the public’s eyes and ears for rooting out waste, fraud and abuse within the executive branch, have access to all necessary documents to conduct an investigation.
“Inspectors general are critical to good governance and the rule of law, but in order for them to do their jobs, they need independent access to information,” Grassley said. “Agencies denying access to necessary documents is unacceptable. It undermines Congress’ intent and the rule of law, and it makes a mockery of government transparency. And, if we learned anything in the last year, it’s that government can use more transparency, not less.”
Grassley today requested to bring up his legislation, the Inspector General Empowerment Act, to clarify once and for all that inspectors general are to receive all documents necessary to do the jobs Congress requires them to do. Grassley and the authors of the bill made tweaks to incorporate various ideas of other members, but the crux of the bill-ensuring access to documents for inspectors general-remains the same. His request to pass the bill by unanimous consent was blocked by another member.
The fix was needed after more and more federal agencies began refusing to allow inspectors general to review all of their records, in direct contradiction of the Inspector General Act of 1978 which created inspectors general as independent and objective units within the executive branch. The law authorizes inspectors general access to all records belonging to their respective agency so they can thoroughly investigate how the government operates. This access has helped these watchdogs identify many significant cases of excessive spending and misconduct over the years.
There are consequences when agencies deny important documents to inspectors general. For example an important investigation at the Peace Corps was stalled into the agency’s handling of sexual assault reports by its volunteers.
The text of Grassley’s floor statement asking to bring up the bill is below.
Prepared Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Inspector General Empowerment Act (S.579)
December 1, 2016
In 1978, Congress created Inspectors General—or IGs—to be our eyes and ears within the executive branch. These independent watchdogs are designed to keep Congress and the public informed about waste, fraud, and abuse in government. They also help agency leaders identify problems and inefficiencies that they may not be aware of.
So, IGs are critical to good governance and to the rule of law. But in order for IGs to do their jobs, they need independent access to information. That’s why when Congress passed the Inspector General Act in 1978, we explicitly said that IGs should have access to ALL records of the agency that they’re charged with overseeing. However, since 2010, more and more agencies have refused to comply with this legal obligation.
This obstruction has slowed down far too many important investigations—ranging from sexual assaults in the Peace Corps to the FBI’s exercise of anti-terrorism authorities under the PATRIOT Act. And those are just two of the oversight issues that I've been involved in. Every one of the other 99 senators would probably have to say that in their oversight work, somehow the executive branch agencies have not carried out the spirit of the 1978 legislation.
But it got worse in July of 2016. The Justice Department’s Office of Legal Counsel (OLC) released a memo supporting this obstruction of Congressional intent.
Now, let me put this in a common sense form that surely everybody ought to understand. In 1978 Congress passes the inspector general's law. It's voted on by a majority of the Congress. It's sent to the president. The president signs this. It's been law since that period of time. But we have a situation where one bureaucrat out of two million federal employees sits and reads something into a piece of legislation that was never intended because the legislation says that the inspector general should be entitled to all records. But the office of legal counsel opinion says, well, maybe not all. It kind of depends on the head of the department.
Now, there are some exceptions in the inspector general law that ought to be there. Those are spelled out. Some of them dealing with national security. Some of them dealing with the Department of Defense. It’s just one example. So we have this opinion in July 2016.
The memo argued that Congress did not really mean what it very clearly said – that IGs get access to “all records”.
That is unacceptable. It undermines Congress’ intent and the rule of law, and makes a mockery of government transparency. The public deserves robust scrutiny of the federal government.
And every eighth grade civic student understands what checks and balances is all about. And congressional oversight is one of those checks
So, since September of 2015, a bipartisan group of senators and I have been working to overturn the Justice Department’s opinion through S.579, the Inspector General Empowerment Act.
Among other things, this bill further clarifies that Congress intended IGs to access ALL agency records, notwithstanding any other provision of law, unless other laws specifically state that IGs are not to receive such access. A lot of those fall under areas of national security and defense.
The bill has a total of 20 co-sponsors, including seven of my esteemed Democratic colleagues: Senators McCaskill, Carper, Mikulski, Wyden, Baldwin, Manchin, and Peters.
And at a Judiciary Committee hearing in August of last year, Senator Leahy also agreed that this access problem needs to be fixed by legislation, because it is “blocking what was once a free flow of information.”
Even the Justice Department witness at that hearing disagreed with the results of the OLC opinion and supported legislative action to solve the problem.
As of today, a large majority of Senators, the Las Vegas Review-Journal, and I say that for the benefit of Senator Reid who one time objected, the New York Times, the Washington Post, and good governance groups like the Project on Government Oversight and Citizens Against Government Waste, all support restoring the intent of that Act—through S.579.
The intent of the act, I want to emphasize, was destroyed by one bureaucrat writing a legal opinion that's been a crunch for a lot of people that don't want to cooperate with the inspector general.
But, despite strong bipartisan and public support for the bill, we have not been able to pass the bill by unanimous consent.
We attempted to pass the bill by unanimous consent in September 2015 and again in December 2015. In December, the Armed Services Committee and the Intelligence Committee raised concerns about the bill. It’s perfectly legitimate for them to do that. My co-sponsors and I worked with our colleagues on these committees to address and resolve their concerns. Ultimately, Chairman McCain and Chairman Burr lifted their holds, and in December 2015, the bill cleared the Republican side with no objections. But when we tried to pass the bill on the floor by unanimous consent, Senator Reid objected on the Democratic side. In the meantime, the House passed its own version of the bill. Since then, we have worked closely with the House to resolve minor differences between the House and Senate bills.
Now it is time to press forward, and finally pass this critical bill to ensure effective oversight of waste, fraud, and abuse in government. In other words, to make very clear that when the act says they are entitled to all records, all means all.
There is one provision of the bill that we have had to remove from this version at the insistence of Senator Leahy. It relates to testimonial subpoena authority for Inspectors General. First, let me be clear about why the testimonial subpoena authority is important to the ability of IGs to conduct effective investigations.
When employees of the U.S. government are accused of wrongdoing or misconduct, IGs should be able to conduct a full and thorough investigation. Unfortunately, employees who may have violated that trust are often able to evade the IG’s inquiry, simply by retiring from the government. So, the testimonial subpoena authority empowers IGs to obtain testimony about waste, fraud, and abuse from employees after they leave an agency.
Similarly, the subpoena authority helps IGs investigate entities that receive federal funds. In other words, if you want to know what’s wrong, follow the money. The subpoena authority enables IGs to require testimony from government contractors and subcontractors and grantees and sub-grantees.
Currently, most IGs can subpoena documents from entities outside their agency. But, most cannot subpoena testimony. The ability to require witnesses outside the agency to talk to the IG can be critical in carrying out an inspector general’s statutory duties or recovering wasted federal funds.
Let me also be clear that when we learned of Senator Leahy’s concerns with this provision in November 2015, my bipartisan cosponsors and I worked in good faith for twelve months to address them. We offered at least half a dozen accommodations that would provide meaningful and appropriate limitations on the subpoena authority in question. But Senator Leahy continued to demand it be removed from the bill entirely.
Despite a year of negotiating, we were unable to reach a solution, so I proposed bringing the provision to the floor for debate. I offered to Senator Leahy the option of debating on the floor the merits of the testimonial subpoena authority, so that the Senate could vote on whether to keep or remove the provision from the bill. But my colleague declined to agree to floor time for open debate on this provision.
His continued refusal to debate and vote on the much-needed testimonial subpoena authority threatens to derail the entire bill, which has such substantial bipartisan and public support. So, despite my strong belief that IGs need testimonial subpoena authority, I also recognize that the IG bill contains many other critical provisions that the IGs need now to do their jobs.
We cannot afford to wait any longer for those provisions that empower the IGs. This bill is still necessary to help IGs and to assure to the American people that there is transparency and accountability within the government.
At this time, before I ask unanimous consent, though, I'd like to say for the benefit of what I think a position that senator McCain's going to take, that the secretary under existing law may block an IG investigation if it is necessary to preserve the national security and interest of the United States, and if the information the IG has requested concerns any one of five categories: sensitive operation plans, intelligence matters, counterintelligence matters, ongoing criminal investigations, or other matters that would constitute a serious threat to national security if that were to be disclosed.
Now I would ask unanimous consent that the senate proceed to the immediate consideration of calendar number 68, S. 579. I ask further that the Johnson substitute amendment be agreed to, the bill as amended be read a third time and passed, and that the motion to reconsider be made and laid upon the table.
Senator Grassley’s Remarks Following Senator McCain’s Objection
I knew ahead of time that we would have this objection. The only difference between this objection this time and a year ago is the fact that a year ago we worked out differences with other committees of the Congress and had evidently 99 senators ready to pass this bill, except for senator Reid, and so it's disappointing that when we work out one problem that we had a year ago, that now we have serious objections…
I would simply close with further evidence of the importance of this legislation and try to respond to what the senator from Arizona said about its impact on the defense department. Section 8 of the IG Act already contains an exception that allows the secretary of defense to prohibit the inspector general from conducting an investigation and gathering documents to protect national security.
The exception is broad. The secretary may block an IG investigation if it's necessary to preserve the national security interests of the United States and if the information the IG has requested concerns sensitive operation plans, intelligence matters, counterintelligence matters, ongoing criminal investigations, and other matters that would constitute a serious threat to national security if disclosed. In addition, cosponsors and I worked with the Armed Services Committee last year to ensure that the bill makes the Secretary of Defense’s authority to restrict certain kinds of sensitive information even more clear than it was in the 1978 legislation. After we made those changes, senator McCain, as I've already said, cleared this version of the access language last year.
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