WASHINGTON - U.S. Senator Chuck Grassley of Iowa has introduced legislation to create an Inspector General for the federal Judiciary.  Congressman F. James Sensenbrenner introduced similar legislation in the House of Representatives.

The bill allows the Inspector General to conduct oversight of all federal and appellate courts, including the Supreme Court, puts in place safeguards so inspectors general do not interfere with judicial decisions, and includes whistleblower protections for individuals within the judicial branch.

Grassley said that increased credibility within the judicial branch of government would be greatly enhanced with an independent watchdog shedding light on waste, fraud and abuse within the federal judiciary.  He said that the current practice of self-regulation of judges with respect to ethics and the judicial code of conduct has proven inadequate.

"In the past five years, the Senate received articles of impeachment for two federal judges whose actions fully came to light only after federal criminal investigations.  Not only were they caught severely breaking the Judicial Code of Conduct, but they attempted to defraud the American taxpayer by declaring themselves disabled in order to continue receiving their judicial salary.  In one case, the ex-Judge attempted to continue to draw his judicial salary while sitting in federal prison," Grassley said.  "Federal judges must live by the highest of standards.  When misconduct, waste, fraud and abuse occur, the public's confidence in the federal judiciary is eroded.  A good inspector general can detect, expose and deter problems and help keep accountability with the American people."

Grassley is the Ranking Member of the Senate Judiciary Committee which has jurisdiction over the federal courts.

Summary of The Judicial Transparency and Ethics Enhancement Act of 2013

·         Establishes the Office of Inspector General for the Judicial Branch, who shall be appointed by the Chief Justice of the Supreme Court for a specific term of service of four years.  Gives the Chief Justice express authority to remove the Inspector General from office.

·         Specifies duties of the Inspector General, which include (1) to conduct investigations of alleged misconduct of judges in the judicial branch (Senate version includes the Supreme Court), that may require oversight or other action by Congress; (2) to conduct and supervise audits and investigations; (3) to prevent and detect waste, fraud and abuse; and (4) to recommend changes in laws or regulations governing the Judicial Branch.

·         Provides powers for the Inspector General, which include (1) to make investigations and reports; (2) to obtain information or assistance from any Federal, State or local agency, or other entity, or unit thereof, including all information kept in the course of business by the Judicial Conference of the United States, the judicial council of circuits, the administrative office of United States courts, and the United States Sentencing Commission; (3) to require, by subpoena or otherwise, the attendance for the taking of testimony of any witnesses and the production of any documents, which shall be enforceable by civil action; (4) to administer or to take an oath or affirmation from any person; (5) to employ officers and employees; (6) to obtain all necessary services; and (7) to enter into contracts or other arrangements to obtain services as needed.

·         Requires the Inspector General to (1) to provide the Chief Justice and Congress with an annual report on the Inspector General's operations; (2) to make prompt reports to the Chief Justice and to Congress on matters which may require further action; and (3) to refer to the Department of Justice any matter that may constitute a criminal violation.

·         Prohibits the Inspector General from investigating or reviewing the merits of a judicial decision.  The investigatory powers of the Inspector General are limited to only alleged misconduct under the "Judicial Conduct and Disability Act of 1980."

·         Requires the Inspector General to commence an investigation only after the judiciary has conducted its review of an ethical complaint under the 1980 Act.

·         Establishes whistleblower protections for individuals within the Judicial Branch.

Here is Grassley's prepared floor statement upon introduction of the bill. 

Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee

Introduction Of Judicial Transparency And Ethics Enhancement Act

Mr. President,

Today I am reintroducing the Judicial Transparency and Ethics Enhancement Act, a bill that would establish within the judicial branch an Office of Inspector General to assist the Judiciary with its ethical obligations as well as to ensure taxpayer dollars are not lost to waste, fraud, or abuse.  Representative Sensenbrenner is introducing the companion bill in the House.  This bill will help make sure that our federal judicial system remains free of corruption, bias, and hypocrisy.

The facts demonstrate that the institution of the Inspector General has been crucial in detecting, exposing and deterring problems within our government.  The job of the Inspector General is to be the first line of defense against fraud, waste and abuse.  In collaboration with whistleblowers, Inspectors General have been extremely effective in their efforts to expose and help correct these wrongs.

That's why, during my 30 years in Congress, I've worked hard to strengthen the oversight role of Inspectors General throughout the federal government.  I've come to rely on IGs and whistleblowers to ensure that our tax dollars are spent according to the letter and spirit of the law. And when that doesn't happen, we in Congress need to know about it and take corrective action.

During the past fiscal year, Congress appropriated nearly $7 billion in taxpayer money to the federal judiciary.  To put this in context, the National Science Foundation, the Small Business Administration, and the Corporation for National and Community Service each received a similar or less amount than the judiciary.  Yet all three of these entities have an Office of Inspector General.  If we in Congress believed that these entities could use an Inspector General, I cannot see why the Judiciary wouldn't deserve the same assistance.

But there is an additional reason why the Judiciary needs an Inspector General.  The fact remains that the current practice of self-regulation of judges with respect to ethics and the judicial code of conduct has time and time again proven inadequate.  I would point out to my colleagues two recent events here in the Senate that support this conclusion.

In the past five years, the Senate received articles of impeachment for not one but two federal judges.  In the first case, former Judge Samuel B. Kent, although charged with multiple counts of sexual assault, pled guilty to obstruction of justice.  Who did he obstruct?  Who did he lie to?  He did this to his fellow judges, who were assembled to investigate the allegations of his obscene and criminal behavior.  But it took a criminal investigation by the Department of Justice to uncover his false statements to his colleagues as well as substantiate the horrendous claims made against him.

In the second case, the Senate found that former Judge G. Thomas Porteous, Jr. was guilty of a number of things, including accepting money from attorneys who had a case pending before him in his court and committing perjury by falsifying his name on bankruptcy filings.  Once again, this Judge's misbehavior came to light through a federal criminal investigation, after which another judicial committee had to be organized to investigate their fellow judge.

What's more, in each case the disgraced judge tried to game the system in order to retain his $174,000 salary.  Rather than resign their commissions, each first tried to claim disability status that would allow each to continue to receive payment, even if in prison.  Then both played chicken with Congress daring us to strip them of their pay by impeaching and convicting them.  I am pleased that we put our foot down and said "No."

The judicial misconduct committees are simply inadequate for investigating claims of misconduct.  These judges are not given the resources necessary nor do they have the expertise in conducting a complete investigation.  And they cannot, despite their best intentions, remove the inherent biases that develop from working closely with other judges.  This duty would be better suited to an independent entity within the Judiciary.

The Judicial Transparency and Ethics Enhancement Act is the answer.  This bill would establish an Office of Inspector General for the judicial branch.  The IG's responsibilities would include conducting investigations of possible judicial misconduct, investigating waste fraud and abuse, and recommending changes in laws and regulations governing the federal judiciary.  The bill would require the IG to provide the Chief Justice and Congress with an annual report on its activities, as well as refer matters that may constitute a criminal violation to the Department of Justice.  In addition, the bill establishes whistleblower protections for judicial branch employees.

Ensuring a fair and independent judiciary is critical to our Constitutional system of checks and balances. Judges are supposed to maintain impartiality. They're supposed to be free from conflicts of interest.  An independent watchdog for the federal judiciary will help its members comply with the ethics rules and promote credibility within the judicial branch of government.  Whistleblower protections for judiciary branch employees will help keep the judiciary accountable. The Judicial Transparency and Ethics Enhancement Act will not only ensure continued public confidence in our federal courts and keep them beyond reproach, it will strengthen our judicial branch.

Mr. President, I ask unanimous consent that the text of this bill be printed in the Record.

Senator Chuck Grassley of Iowa made the comment below about today's launch of the official website for the National Physician Payment Transparency Program.

Grassley comment:

"The posting of pharmaceutical company payments is still a year away, but getting this public website up and running is a good sign that sunshine in this area can be achieved with online postings.  The goal is to help inform consumers and patients in all medical fields about financial relationships between drug makers and doctors, with uniform disclosure.  The public deserves a much better picture of the drug industry's financial presence in medicine than it has today."

Background information:

The National Physician Payment Transparency Program was created by legislation Grassley co-authored with former Senator Herb Kohl of Wisconsin, the Physician Payments Sunshine Act.  It became law in 2010.

The legislative reform was based upon Grassley's investigative and oversight work that exposed a number of questionable financial relationships between pharmaceutical companies and leading medical research doctors.  Examples include :

• At Stanford University, the chairman of psychiatry received a federal grant to study a drug, while partially owning as much as $6 million in stock in a company that was seeking federal approval of that drug.  After exposure, the federal government removed the individual from the grant.
• At Emory University, the chairman of psychiatry failed to report hundreds of thousands of dollars in payments from a pharmaceutical company while researching that same company's drugs with a federal grant from the National Institutes of Health.  He earned $2.8 million in drug industry fees from 2000 to 2007 and had at one point consulted for 21 drug and device companies simultaneously.  The professor resigned his chairmanship after this became public information.
• At Harvard University, three professors failed to report almost a million dollars each in outside income while heading up several National Institutes of Health grants.  In response to Grassley oversight, Harvard revised its conflict of interest policies and conducted an internal investigation.

Since enactment the Grassley-Kohl Physician Payments Sunshine Act, Grassley has worked to ensure implementation of the law by the Department of Health and Human Services, after delays and missed deadlines at the health-care agency and the White House Office of Management and Budget.

Here is a link to the new website:

http://www.cms.gov/Regulations-and-Guidance/Legislation/National-Physician-Payment-Transparency-Program/index.html

WASHINGTON - Working to create an environment for private-sector employers to create jobs and to increase transparency, Senator Chuck Grassley and Representative Doug Collins are introducing legislation that would end the practice of enacting federal regulations through sue-and-settle litigation.  Grassley is Ranking Member of the Senate Judiciary Committee and Collins is a member of the House Judiciary Committee and leads the Freshman Regulatory Reform Working Group.

The Sunshine for Regulatory Decrees and Settlements Act responds to the use of consent decrees and settlement agreements in lawsuits against federal agencies to bind executive discretion.  The end result is rulemaking that implements the priorities of pro-regulatory special interest groups and limits the discretion of succeeding administrations.

"Sue-and-settle litigation damages the transparency, public participation and judicial review protections Congress has guaranteed for all of our citizens in the rulemaking process.  And, it's a tremendous burden on job-creating businesses, especially small businesses," Grassley said.  "This kind of regulatory litigation also adversely affects the ability of the executive branch to engage in sound and principled decision-making. The goal of this bill is to make sure all citizens, especially those directly impacted by a proposed regulation, have a meaningful opportunity to participate in the rulemaking process and help ensure the procedure and process used to create these regulations are made in the open.  America's system of lawmaking and judicial review shouldn't be distorted or manipulated."

"The Obama Administration has empowered agencies to subvert the legislative process and manipulate the rulemaking system to achieve their pro-regulation agenda. Strong reforms are needed to protect communities and businesses against burdensome regulations that circumvent the rulemaking process.  This legislation sheds light on the regulation through litigation that is crippling small businesses in my district and across the nation. Improving the public participation and transparency protections of the Administrative Procedure Act is vital to preserving the integrity of the rulemaking process," Collins said.

Sue-and-settle driven rulemaking takes place under schedules that render notice-and-comment requirements a mere formality, depriving regulated entities, the public and the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) of sufficient time to have any meaningful input on the content of final rules.

The sue-and-settle problem has occurred primarily in litigation against regulatory agencies over allegations that agency action has been unlawfully withheld or unreasonably delayed.  Typically, the defendant agency has failed to meet a mandatory statutory deadline for a new regulation or is alleged to have unreasonably delayed discretionary action.  In addition, agency actions are often politically sensitive, especially when the proposed regulation imposes high costs on the regulated businesses.

With sue-and-settle cases, the resulting consent decree or settlement agreement comes as a surprise to the regulated community and the general public and often provides a short timeline for agency action.  The lack of advance notice and minimal time allowed for the proposal and promulgation of regulations allows agencies to undercut the public participation and analytical requirements of regulatory process statutes.  Accelerated timeframes for proposal and promulgation allow agencies to short-circuit review of new regulations by the OIRA.  The incentive to do this is particularly strong when the plaintiff and the agency agree on what the content of the regulation should be, and seek to effectuate that agreement without input from interested parties and the OIRA.

Senators Tom Coburn, Mike Lee, Marco Rubio, John Cornyn, Deb Fischer and Ted Cruz are original cosponsors of the reform proposal in the Senate.  Spencer Bachus, Chairman of the Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law, and Howard Coble, Chairman of the Judiciary Subcommittee on Courts, Intellectual Property and the Internet are co-sponsoring in the House.

The Sunshine for Regulatory Decrees and Settlements Act would require:

·         Greater transparency. Agencies must publish sue-and-settle notices of intent to sue, complaints, decrees, settlements, and attorneys' fee awards and report on them to Congress.

·         Greater rights for regulated entities and the public. Agencies cannot propose sue-and-settle decrees and settlements to the courts until parties affected by the proposed regulations can intervene and participate in settlement negotiations and the proposed decrees and settlements are published for public notice and comment.

·         Greater judicial scrutiny. Courts weighing proposed decrees and settlements must assure compliance with normal rulemaking procedures and account for agencies' competing mandatory duties not within the litigation.

·         Greater accountability. The Attorney General must certify to the court his or her approval of proposed decrees that convert discretionary authorities into mandatory duties.

·         Greater flexibility for new administrations. Courts are allowed to review de novo any new administration's motion to modify a consent decree in light of changed facts and circumstances or competing duties.

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Prepared Floor Statement of Senator Chuck Grassley

The Motion to Proceed to the Reid Gun Control Bill

Thursday, April 11, 2013

Mr. President, earlier I met with families from Newtown, Connecticut to discuss the legislation we are currently debating.  It was emotional and difficult for all of us.  I thank them for sharing their stories of their loved ones and their concerns with me.

At the meeting, they called for a debate on the legislation, a debate we are having. Nonetheless, Mr. President, we are in the unusual position of being asked to take a leap into the unknown.  We are being asked to vote to proceed to an uncertain bill.  That bill is not even the bill that we would likely consider if the motion to proceed were successful.  The language on background checks would change.  We have not seen the actual new background check language.  But we are being asked to proceed to the bill anyway.

What we do have is a summary of the proposed background check language.  That summary raises questions. For instance, the summary states that the background check language applies to sales at gun shows and online.  Is a background check required if someone sees a gun at a gun show, then proceeds to purchase the gun outside the gun show, maybe even in a parking lot?  What if someone at a gun show trades but does not sell a gun?

And it applies beyond gun shows.  If a private person advertises a gun, then the transfer would have to go through a licensed dealer, at a price.  So if someone takes out an ad to sell their gun in the local Farm Bureau newsletter or in their church bulletin, they would have to find a licensed gun dealer to conduct a background check before sale could go through.  That is quite a limitation on private sales and ownership of guns.  And it takes time in many places in this country to find that gun dealer to conduct that background check.

The summary is not specific: which private sales would be exempt from the bill's background check requirements?  The summary states that background checks are "required for sales at gun shows and online while securing certain aspects of 2nd Amendment rights for law abiding citizens."  That should cause everyone concern.  If the background check language secures "certain aspects of 2nd Amendment rights," then what aspects of 2nd Amendment rights of law abiding citizens does it not secure?

The summary says that the new language exempts "temporary transfers."    What is the difference between a "temporary" and a permanent transfer?  How would a law-abiding citizen know whether the transfer would be considered to be "temporary"?  What if the person making the transfer thought at the time it was made that the transfer would be temporary but later decides that it should be for a longer time?

And the summary claims that it will close the "gun show and other loopholes."  What "other loopholes"?  We should be skeptical about what rights could be infringed based on that claim.         It is important to understand that there is no such thing as a "gun show loophole."  Under existing law, background checks are required for gun purchases from a federally licensed firearms dealer.  This is true whether the purchase is made at a gun show or any other location.

Also, under existing law, gun purchases made through someone who is not a federally licensed firearms dealer do not require a background check.  This is true whether the sale is made at a gun show or not.  Whether a sale is made at a gun show is therefore irrelevant to whether a background check is required.

There is one rule for sales from licensed dealers and another for private sales.  But under the new language, not all private sales will be treated the same.  Some private sales will require background checks and others will not.  That distinction will create, not close, a loophole.  No longer would all private sales be treated the same.  Some private sales will require background checks and others will not.  There will be political pressure then to say that all private sales should be covered - universal background checks in other words.

And we heard testimony in the Judiciary Committee, and the Deputy Director of the National Institute of Justice has written, that universal background checks can be enforced only if gun registration is mandated.

Now it has been said on the floor recently that background check legislation cannot lead to gun registries because federal law prohibits that.     But current federal law can be changed.  And the language currently before us requires recordkeeping, a step toward registration.

Although the sponsor of that language said that the bill expressly provided that no registry could be created, the bill contains no such language at present.  The sponsor was misinformed about his own bill.  He admitted that the current background check language was not yet ready for consideration and needed clarifications that so far have not been forthcoming.

We should have answers to these and other questions before we should proceed to the bill.

And we should be wary of going to a bill when various senators have announced their intention to offer amendments to that bill that in my judgment raise serious constitutional questions under the Second Amendment.

Mr. President, how can we responsibly proceed to a bill that contains language that even its sponsor admits is not ready for consideration?

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