Prepared Floor Statement by Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
Inspector General Empowerment Act (S.579)
April 4, 2016
Mr. President, this body was last in session during Sunshine Week, but the principle of government transparency is one that does not expire. So, I’d like to take a few moments now to reiterate my support for that timeless principle.
Open government is good government. And Americans have a right to a government that is accountable to its people.
In 1978, following the lessons learned from the Watergate scandal, 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. But 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 these watchdogs to do their jobs, IGs need access to agency records. That’s why the law authorizes IGs to access “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.
Last July, the Justice Department’s Office of Legal Counsel aided and abetted the obstruction by issuing a memo defending it. That memo has given cover to other agencies to follow the FBI’s lead and withhold records from their IGs.
According to OLC’s 66-page opinion, Congress didn’t really mean to give IGs access to “all records” – even though that is literally what we spelled out in the law.
Think about that for a second. One unelected bureaucrat in the Justice Department thinks he can overturn the will of 535 elected officials in Congress and the President who signed the bill into law. That is unacceptable, and Americans are tired of stunts like this that undermine democracy and the rule of law, and make a mockery of government transparency. The public deserves robust scrutiny of the federal government.
So, since September, a bipartisan group of senators and I have been working to overturn the OLC opinion through S.579, the Inspector General Empowerment Act. Among other things, this bill 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.
We attempted to pass this bill by unanimous consent in September. Since then, the co-sponsors and I have worked hard in good faith to accommodate the concerns of any and all Senators willing to work with us. As a result, this bill now has a total of 17 co-sponsors, including 7 of my esteemed Democratic colleagues: Senators McCaskill, Carper, Mikulski, Wyden, Baldwin, Manchin, and Peters. I want to thank each one of them for standing up with me for Inspectors General and for the principles of good governance.
In December, we attempted to pass this bipartisan bill by unanimous consent. The bill cleared the Republican side with no objection, but the bill was objected to on the Democratic side.
So, let’s do the math. None of the 54 Republican Senators objected. There are 7 Democrat co-sponsors. That’s at least 61 votes. At least.
If this bill came up for a vote, it would certainly pass easily. It was developed hand-in-hand over many months with both Democrats and Republicans in the House of Representatives, which is ready to move an identical bill as soon as we act here in the Senate.
So, on December 15th, Senators McCaskill, Johnson, and I attempted to pass this bill by a process known as a Live Unanimous Consent (UC). Our goal was to pass the bill right then and there, and we could have, had a Senator not objected.
However, the Minority Leader, Senator Reid stood up and objected.
The Minority Leader obstructed a bill sponsored by 7 Senators of his own party. Senator Reid refused to give any reason for obstructing this bipartisan bill, both at that time and later when questioned by reporters. All he would say publicly was that a Senator on his side of the aisle had concerns.
Apparently, Sen. Reid is now telling the press that his concerns relate to provisions of the bill that give IGs the power to subpoena testimony from former federal employees. In a moment, I will explain why this authority is absolutely vital to the ability of IGs to conduct effective investigations.
But before I do that, I want to make one thing crystal clear: My bi-partisan co-sponsors and I have been working in good faith to address these concerns for 5 months—since November 2015. In those 5 months, we have offered at least half a dozen different accommodations that would limit the subpoena authority in question. So, we have offered reasonable compromises, but the one or two Senators who object to this provision appear to be demanding it be removed from the bill entirely.
Let me tell you why we cannot do that. 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 example, 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. 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.
This is a common sense, bipartisan bill that should have passed by unanimous consent. It overturns an OLC opinion that has been roundly criticized by nearly everyone who has read it. For example, the New York Times editorial board recently urged us to pass this bill, so that we can allow IGs to do their jobs.
But, Senator Reid is standing in the way of the Senate doing its job.
At a Judiciary Committee hearing in August, Senator Leahy said that this access problem is “blocking what was once a free flow of information.” Senator Leahy also called for a permanent legislative solution. Even the Justice Department witness at that hearing disagreed with the results of the OLC opinion and supported legislative action to solve the problem.
But, to all of that, Senator Reid said “NO.”
Make no mistake: by blocking this bipartisan, good-government bill, Senator Reid is muzzling watchdogs—and the public is being robbed of their right to an accountable government.
Because the Minority Leader has refused to explain himself, no one can tell whether his objection is grounded in policy or just raw politics. What is it about independent Inspector General oversight that the Minority Leader is afraid of?
Remember, the public is better served when IGs are able to shine light into government operations and stewardship of taxpayer dollars.
And the public is beginning to take notice of Senator Reid’s behavior. Just last week, the Las Vegas Review-Journal—which is the largest circulating daily newspaper in the minority leader’s home state—published an article discussing his obstruction.
Let me just take a moment to read a quote from this article:
“U.S. Senate Democratic leader Harry Reid of Nevada received a government watchdog group’s dubious honor ... for blocking a bill to back inspectors general in their battles against waste, fraud, abuse, and mismanagement and refusing to provide a full explanation on why he did so.”
Then, just over this weekend, the editorial board of this same newspaper wrote an opinion piece titled, “Let the sun shine in.” Let me just read an excerpt from this article:
“Because Sen. Grassley’s bill has attracted bipartisan support, and because Republicans and Democrats jointly have objected to efforts to thwart IGs from doing their jobs, we’re confident that compromise is possible … We urge Sens. Reid and Grassley to work together to pass this important legislation as quickly as possible.”
As I mentioned earlier, the bipartisan group of cosponsors and I have already offered half a dozen different accommodations to address the concerns related to the subpoena authority provision. All of those offers are still on the table, and we stand ready to work with Sen. Reid and any other Senator to get this bill done, in a way that improves IG access to both documents and witness testimony.
Remember, the Inspector General Act was passed in 1978, following one of the worst political scandals in American history.
Today, at least 61 Senators, the Las Vegas Review-Journal, the New York Times, the Washington Post, and good governance groups like POGO and Citizens Against Government Waste, all support restoring the intent of that Act—through S.579.
This bill would redeem the free flow of information that Senator Leahy advocated in August.
And every day that goes by without overturning the OLC opinion is another day that watchdogs across the government can be stonewalled.
Let me be clear. Only one Senator is publicly standing in the way of fixing this problem.
We need to find a way to get this bill done. Especially now, we need to focus on the things we can agree on. When there is something with this much bi-partisan support, it should be a no-brainer. One or two Senators should not be allowed to stand in the way.
So, I urge my colleagues to work with me to get S.579 passed, so that IGs can resume doing the work that we asked them to do in 1978.