Unanimous Consent Request—S. 579by Senator Chuck Grassley
Posted on 2015-12-15
GRASSLEY. Mr. President, first of all, I wish to compliment
Senator McCaskill and Senator Johnson for their leadership in bringing
this bill out of their committee--a committee I don't serve on but a
bill that is very important to the oversight work of this Senator, and
I hope every Senator considers it to be very important. I would say
that I agree with everything they have said. I want to emphasize what
they said, and I want to take a few minutes to do that because I feel
strongly about this piece of legislation.
There is an important principle here--a very important principle-- that we ought to keep in mind, because it is an insult to 100 Senators and 435 Members of the House of Representatives when legislation is written and it is explained very clearly what that legislation is supposed to accomplish: that an inspector general would have access to all records. Then we have a lawyer in the Office of Legal Counsel in the Department of Justice--one person making an interpretation of a law that is contrary to congressional intent--that one person out of 2 million people in the executive branch of government can override the will of 535 Members of Congress. That will was expressed way back in 1978.
This is just a little different quote from a letter Senator Johnson has already talked about from a respected Member of this Senate for 24 or maybe 30 years, Senator John Glenn of Ohio, who was very much interested in making sure that we had strong oversight by Congress and that within the executive branch, they had strong oversight that the IG would do within a specific department.
Senator John Glenn of Ohio was one of the chief architects of this legislation. He said: ``Full and unfettered access is vital to an IG's ability to effectively prevent and detect waste, fraud, and abuse in an agency's programs and activities.'' Here we are with what Senator John Glenn said when he was a Member of this body and this legislation passed. Then we have one lawyer out of 2 million executive branch employees interpreting a statute contrary to congressional intent and then overriding it--in other words, giving Cabinet heads opportunities to avoid doing what the inspector general law says and what an inspector general needs to do to do their job: have access to all records.
Senator McCaskill made that clear. Senator Johnson made that clear. This is a bipartisan effort coming unanimously out of this committee, that this is an egregious attack on the powers of Congress and we can't let one person out of 2 million people in the executive branch of the government get away with it. Yet we seem to have some problems getting it passed. I don't understand it. You try to explain that to the people of this country, whether it is in New York City or whether it is in Des Moines, IA. There is no way this can be justified, that one lawyer out of 2 million people in the executive branch of government can issue an opinion and override the Congress of the United States.
I intend to go into some detail about how I feel about this legislation, if my colleagues haven't come to that conclusion already. To ensure accountability and transparency in government, Congress created inspectors general, or IGs, as our eyes and ears within the executive branch. That is the foresight of one famous Senator and astronaut by the name of John Glenn. But IGs cannot do their job without timely and independent access to all agency records. That is why this bill is called ``all means all.'' Agencies cannot be trusted not 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 as well.
When Congress passed the Inspectors General Act of 1978, the Congress explicitly said that IGs should have access to all agency records. Inspectors general are designed to be independent but to also be part of an agency. Inspectors general are there to help agency leadership identify and correct waste, fraud, and abuse. What Cabinet head wouldn't want somebody in their department to have access to all records that show that maybe that department isn't spending money according to congressional intent or maybe not following the law the way Congress intended? It ought to be welcome by any administration head.
Fights between an agency and its own inspector general over access to documents are a waste of taxpayers' money and personnel time. The law requires that inspectors general have access to all agency records-- precisely, by the way, to avoid these costly and time-consuming disputes. However, since 2010, a handful of agencies, led by the FBI-- and I respect the FBI, but in this case I don't--has refused to comply with this legal obligation.
The Justice Department claimed that the inspector general could not access certain records until--guess what--department leadership gave them permission to do it, even though the law says they are entitled to all documents. Requiring private approval from agency leadership for access to agency information undermines inspectors general independence. That is bad enough, but it also causes wasteful delays.
After this access problem came to light, Congress took action. So we have the 2015 Department of Justice Appropriations Act declaring--this is Congress again declaring--that no funds should be used to deny the inspector general timely access to all records. In other words, just this year--or last year when the appropriations bill was passed for 2015--we had Members of Congress saying that this lawyer, out of 2 million executive branch employees, who is frustrating the will of Congress is wrong.
This new law directed the inspector general to report to Congress within 5 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--that is this one lawyer out of 2 million employees--the Office of Legal Counsel released a memo arguing that we did not really mean ``all records'' when we put those words in the statute. Here we have somebody in the Justice Department--one person out of 2 million employees-- trying to tell 535 Members of Congress what they meant when they said ``all'' means all. So let me be clear. We meant what we said in the IG act: ``All records'' really means all records.
I told my colleagues about the Department of Justice Appropriations Act responding to this a year ago. Well, 1 week after this report was issued, that the Office of Legal Counsel issued its awful legal opinion, Senator Mikulski and Senator Shelby--both outstanding members of the Committee on Appropriations--sent a letter to the Justice Department correcting the Office of Legal Counsel's misreading of [[Page S8669]] the appropriations rider, also known as section 218. I would like to read from the Mikulski and Shelby letter: We write to inform you that the OLC's interpretation of section 218 is wrong 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 Office of Inspector General with full and immediate access to all records, documents, and other materials in accordance with section 6(a) of the Inspectors General Act.
So we wrote a statute in 1978. We have no problems with it until this person--one lawyer out of 2 million executive branch employees--writes an opinion saying ``all'' doesn't mean all. Then we have Members of the body who are insulted by that interpretation, and these Members write: No money in this appropriations bill can be used to carry out that Office of Legal Counsel opinion. And, if they would have listened to the members of the Appropriations Committee, Senator Johnson and Senator McCaskill would not have to work so hard to correct a bad opinion, contrary to congressional intent, that was written by the Office of Legal Counsel.
I applaud my colleagues on the Appropriations Committee, particularly Senators Mikulski and Shelby, for standing up for the inspectors general.
In early August I chaired a Judiciary Committee hearing on the Office of Legal Counsel opinion and the devastating impact it is already having on the work of inspectors general across the country. Remember, the Office of Legal Counsel is in the Justice Department. Well, we had a Justice Department witness before our committee disagree with the results of the Office of Legal Counsel opinion and actually support legislative action to solve the problem.
So following the hearing, 11 of my colleagues and I sent a bipartisan--I want to emphasize bipartisan--as well as bicameral letter to the Department of Justice and the entire inspectors general community. In this letter, the chairs and ranking members of the committee of jurisdiction in both the House and the Senate asked for specific legislative language to reaffirm that ``all'' means all. As the witness from the Justice Department said, there ought to be legislative language to correct this awful interpretation by one lawyer out of 2 million employees in the executive branch, overriding 535 Members of Congress.
It took the Justice Department 3 months to respond to this letter, and its proposed language was far too narrow to actually override this Office of Legal Counsel opinion. However, the inspectors general community responded to our letter within 2 weeks. In September, a bipartisan group of Senators and I incorporated the core of this language into the bill we are talking about today, S. 579. It is entitled the ``Inspector General Empowerment Act of 2015.'' In total, 13 colleagues have joined me on this bill: Senators Johnson, McCaskill, Ernst, Baldwin, Carper, Cornyn, Lankford, Collins, Ayotte, Kirk, Mikulski, Fischer, and Wyden. It is bipartisan.
I am grateful to each of them for standing up with me for inspectors general. I especially want to thank Senators Johnson and McCaskill, as I have already done, but do it again for working closely with me on this legislation from the very beginning and for their work in getting this bill through their committee.
Let me tell you what this bill does. The Inspector General Empowerment Act includes further clarification that Congress intended IGs to have access to 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 this awful decision that this one lawyer in the Department of Justice out of 2 million-plus Federal employees in the executive branch issued this opinion. These words, notwithstanding any other provision of law, are 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 investigation, 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 public trust. God only knows how much restoration of public trust in the government in Washington we have to restore. Unfortunately, employees who may have violated that trust are often allowed to evade the IGs inquiry by simply retiring from the government. So the bill empowers IGs to obtain testimony from employees like that.