Grassley Presses for Consideration of Inspector General Empowerment Act
Senator Chuck Grassley today on the Senate floor asked unanimous consent for the Senate to begin consideration of a bill to ensure that inspectors general across the federal bureaucracy have timely access to all records needed to complete a thorough and independent investigation. Grassley’s unanimous consent request was objected to by Senate minority leader Harry Reid in an effort to hide the identities of members who are holding up passage of the bill. The objection was made in violation of the spirit of the Standing Order of the Senate that says members who have holds on legislation must be identified.
In a statement after the objection, Grassley said, “This bill is about giving inspectors general the tools they need to provide proper oversight of the executive branch. These are common sense solutions to helping root out waste, fraud and abuse. Objecting to a bipartisan bill whose authors have been working for months in good faith, without offering constructive assistance to improving it, reflects poorly on the Senate as a whole.”
The text of Grassley’s speech on the Inspector General Empowerment Act is below.
Video of Grassley’s floor speech can be found here.
Prepared Floor Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Inspector General Empowerment Act of 2015
Tuesday, December 15, 2015
To ensure accountability and transparency in government, Congress created Inspectors General—or IGs—as our eyes and ears within the executive branch. But IGs cannot do their job without timely and independent access to all agency records.
Agencies cannot be trusted to restrict the flow of potentially embarrassing documents to the IGs who oversee them. If the agencies can keep IGs in the dark, then this Congress will be kept in the dark too. So, when Congress passed the Inspector General Act in 1978, we explicitly said that IGs should have access to ALL agency records.
Inspectors General are designed to be independent, but also to be part of the agency. They are there to help agency leadership identify and correct waste, fraud and abuse.
Fights between an agency and its own inspector general over access to documents are a waste of time and money. The law requires that inspectors general have access to ALL agency records precisely to avoid these costly and time-consuming disputes.
However, since 2010, a handful of agencies, led by the FBI, has refused to comply with this legal obligation. The Justice Department claimed that the Inspector General could not access certain records until department leadership gave them permission. Requiring prior approval from agency leadership for access to agency information undermines inspector general independence. That is bad enough, but it also causes wasteful delays.
After this access problem came to light, Congress took action.
The 2015 Department of Justice Appropriations Act declares that no funds should be used to deny the Inspector General timely access to all records. The new law also directed the Inspector General to report to Congress within five days whenever there was a failure to comply with this requirement.
In February alone, the Justice Department’s IG notified Congress of three separate occasions in which the FBI failed to provide access to records requested for oversight investigations.
IGs for the Environmental Protection Agency, the Department of Commerce and the Peace Corps have experienced similar stonewalling.
Then, in July, the Justice Department’s Office of Legal Counsel—or OLC—released a memo arguing that we did not really mean “all records” when we put those words in the statute.
Let me be clear, we meant what we said in the IG Act: ALL records really means ALL records.
One week after OLC issued its awful legal opinion, Senators Mikulski and Shelby on the Appropriations Committee sent a letter to the Justice Department correcting OLC’s misreading of the appropriations rider, also known as Section 218.
Let me just read a few excerpts from that letter:
We write to inform you that OLC’s interpretation of Section 218 – and the subsequent conclusion of our Committee’s intention – is wrong.
* * *
We expect the Department and all of its agencies to fully comply with section 218, and to provide the OIG with full and immediate access to ALL records, documents and other material in accordance with section 6(a) of the Inspector General Act.
I applaud my colleagues on the Appropriations Committee for standing up for Inspectors General.
In early August, I chaired a Judiciary Committee hearing on the OLC opinion and the devastating impact it is already having on the work of inspectors general across government. Even the Justice Department witness disagreed with the results of the OLC opinion and supported legislative action to solve the problem.
So, following the hearing, 11 of my colleagues and I sent a bipartisan, bicameral letter to DOJ and the IG community. In this letter, the Chair and Ranking Members of the Committees of jurisdiction in both the House and Senate asked for specific legislative language to re-affirm that “all” means “all.”
It took the Justice Department 3 months to respond to this letter, and its proposed language was far too narrow. However, the IG community responded to our letter within 2 weeks.
In September, a bipartisan group of senators and I incorporated the core of this language into S. 579, the Inspector General Empowerment Act of 2015.
In total, 13 colleagues have joined me on this bill, including Senators Johnson, McCaskill, Ernst, Baldwin, Carper, Cornyn, Lankford, Collins, Ayotte, Kirk, Mikulski, Fischer, and Wyden. I am grateful to each one of them for standing up with me for Inspectors General. I especially want to thank Senators Johnson and McCaskill for working closely with me on this legislation from the very beginning and for their work in getting this bill through committee.
Now, let me tell you what this bill does.
The Inspector General Empowerment Act includes further clarification 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.
Let me be clear: the purpose of this provision is to nullify and overturn the OLC opinion. This “notwithstanding any other provision of law” language is key to accomplishing that goal.
But the bill does much more than overturning the OLC opinion which has been roundly criticized by both sides of the aisle.
It bolsters IG independence by preventing agency heads from placing them on arbitrary and indefinite administrative leave.
It promotes transparency by requiring IGs to post more of their reports online, including those involving misconduct by senior officials that the Justice Department chose not to prosecute.
Also, the bill equips IGs with tools they need to conduct effective investigations, such as the ability to subpoena testimony from former federal employees. When employees of the U.S. government are accused of wrongdoing or misconduct, IGs should be able to conduct a full and thorough investigation of those allegations. Getting to the bottom of these allegations is necessary to restore the public trust. Unfortunately, employees who may have violated that trust are often allowed to evade the IG’s inquiry, by simply retiring from the government. So, the bill empowers IGs to obtain testimony from employees like this.
Similarly, the bill helps IGs better expose waste, fraud and abuse by those who receive federal funds.
It enables IGs to require testimony from government contractors and subcontractors and grantees and sub-grantees. Currently, most IGs can subpoena documents from entities from outside their agency. However, most cannot subpoena testimony, although a few can.
For examples, the Inspectors General for the Defense Department and the Department of Health and Human Services already have this authority. 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.
The IG community recently provided me with numerous examples of actual, real-life cases that illustrate the need to subpoena witnesses. I ask unanimous consent to submit for the record a document that lists these examples.
I also ask unanimous consent to submit for the record a letter that I received yesterday from the Project on Government Oversight, or POGO. POGO is a nonpartisan independent watchdog that has been advocating good government reforms for decades. And in this letter, POGO expresses its support for this bill in general and for the provisions that equip IGs with the authority to require testimony.
But Mr. President, I want to be clear: the bill also imposes limitations on the authority of IGs to require testimony. There are several procedural protections in place to ensure that this authority is exercised wisely.
For example, the subpoena must first be approved by a majority of a designated panel of three other IGs. It is then referred to the Attorney General. For those IGs that can already subpoena witness testimony, I am not aware of any instance in which it has been misused.
In fact, the Inspector General for the Department of Defense has established a policy that spells out additional procedures and safeguards to ensure that subjects of subpoenas are treated fairly.
I’m confident that the rest of the IG community will be just as scrupulous in providing appropriate protections for the use of this authority, as well.
You see, we all win when IGs can do their jobs.
And most importantly, the public is better served when IGs are able to shine light into government operations and stewardship of taxpayer dollars.
In September, we attempted to pass this important bill via unanimous consent. It has been nearly three months since leadership asked whether any Senator would object. Not one Senator has put a statement in the record or come to the floor to object publicly.
At the August Judiciary Committee hearing there was a clear consensus that Congress needed to act legislatively and needed to overturn the OLC opinion. And every day that goes by without fixing the OLC opinion is another day that watchdogs across the government can be stonewalled.
At that hearing, Senator Leahy said that this access problem is “blocking what was once a free flow of information” and called for a permanent legislative solution.
Senator Cornyn noted that the OLC opinion is “ignoring the mandate of Congress” and undermining the oversight authority that Congress has under the constitution.
And, Senator Tillis stated that that the need to fix this access problem was “a blinding flash of the obvious” and that “we all seem to be in violent agreement that we need to correct this.”
However, some members raised concerns about guaranteeing IGs unchecked access to certain national security information.
Fortunately, we were able to agree on some changes to the bill that addressed those concerns, without gutting the core of the bill. We made these concessions so that the bill can pass by unanimous consent. And I thank my colleagues who worked with me to arrive at this compromise.
But as we move forward, it’s important to note the following: First, I am not aware of a single instance in which an IG has mishandled any classified or sensitive operational information. IGs are subject to the same restrictions on disclosing information as everyone else in the agency that they oversee.
Second, the executive orders restricting and controlling classified information are issued under the President’s constitutional authority. The bill does not attempt to limit that constitutional authority at all. It just clarifies that no law can prevent an IG from obtaining documents from the agency it oversees unless the statute explicitly states that IG access should be restricted. No one thinks this statute could supersede the President’s constitutional authority.
And third, there is already a provision in the law that allows the Secretary of Defense to prohibit an Inspector General review to protect vital national security interests or to protect sensitive operational information. We agreed to clarify that already-existing provision to include the ability to restrict access to information as well as to prevent a review from occurring. However, we kept the language in that provision that requires notification to Congress whenever the authority to restrict the IG’s access to information is exercised.
After making these changes, we attempted to hot-line the revised bill last week. Since then, no Senator has publicly stated any other concern.
The co-sponsors have worked hard behind the scenes over the past three months in good-faith to accommodate the concerns of any and all members willing to work with us.
Now, the time has come to pass this bill.
We all lose when Inspectors General are delayed or prevented in doing their work.
So, I urge my colleagues to stand up for Inspectors General; overturn the OLC opinion; and restore the intent of the Inspector General Act.
ALL IGs should have complete, timely, and independent access to ALL agency records.
Mr. President, at this time, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar Number 68, S.579, The Inspector General Empowerment Act of 2015.