Prepared Floor Statement of Senator Chuck Grassley of Iowa

Chairman, Senate Judiciary Committee

Inspector General Empowerment Act of 2015

Wednesday, November 4, 2015

Americans have a right to know when our government is misbehaving or wasting taxpayer dollars.  To ensure accountability and transparency in government, Congress created Inspectors General?or IGs?as our eyes and ears within the executive branch.

These independent watchdogs are uniquely positioned to help Congress and the public fight waste, fraud, and abuse in government.

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.  Watchdogs need access to those documents to do their job.

They are mandated by law to keep Congress fully informed of problems like waste, fraud, and abuse.

If the agencies can keep IG's in the dark, then this Congress will be kept in the dark, too.  If given the chance, agencies will almost always choose to hide their problems from scrutiny.  In other words, the public's business that ought to be public isn't always public.

So, when Congress passed the Inspector General Act in 1978, we explicitly said that IGs should have access to ALL agency records.

If the Inspector General deems a document necessary to do his job, then the agency should turn it over immediately.

Inspectors General are designed to be independent, but also to be part of the agency.  They're inside so they can see what goes on in 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.  Agencies started to withhold documents and argued that IGs are not entitled to "all records," even though that's exactly what the law says.

The law was written this way to ensure that agencies cannot pick and choose when to cooperate with IGs and when to withhold records.  Unfortunately, that is precisely what several agencies started doing.

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.

It effectively thwarts inspector general oversight.

This is exactly the opposite of the way the law is supposed to work.

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 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.

In early August, I chaired a hearing on this opinion and the devastating impact it is already having on the work of inspectors general across government.  Multiple witnesses described how the opinion hand-cuffs inspectors general and brings their important work to a virtual standstill.  In fact, the Internal Revenue Service had already cited the misguided Office of Legal Counsel opinion in order to justify stiff-arming its IG from accessing certain records.  Even the Justice Department witness disagreed with the results of the Office of Legal Counsel 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 the Department of Justice and the Inspector General 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," for all Inspectors General.

It took the Justice Department 3 months to respond to this letter.  And the language that it provided fails to address the negative effects the Office of Legal Counsel opinion is already having on the ability of IGs to access their agency's records, across government.  However, the Inspector General community responded to our letter within 2 weeks and provided language that is actually responsive to our request.

In September, a bipartisan group of senators and I incorporated the core of this language in S.579, the Inspector General Empowerment Act of 2015.  Specifically, I was joined in this effort by 11 other members, including Senators McCaskill, Carper, Baldwin, and Mikulski.

Senator Mikulski serves as the vice chair of both the Appropriations Committee and the Subcommittee which has jurisdiction over appropriations for the Justice Department.  She and Chairman Shelby were the authors of the appropriations rider that I spoke about a few moments ago.

In July, one week after the Office of Legal Counsel issued its awful legal opinion, Senators Mikulski and Shelby sent a letter to the Justice Department correcting OLC's misreading of that 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.

"Surmising that multiple interpretations of section 218 created uncertainty, OLC chose one of the three rationales that most suited its own decision to withhold information from the OIG.

"This conclusion was not consistent with the Committee's intentions at all. Rather, the Committee had only one goal in drafting section 218 . . . . to improve OIG access to Department documents and information.

"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, and I applaud my colleagues who have joined me on this bill.  I especially want to thank Senators Johnson and McCaskill for working with me on this legislation from the very beginning and for their work in getting this bill through committee.

Apparently, the plain language of the IG Act and the 2015 appropriations rider was not clear enough for the Office of Legal Counsel to understand.

So, 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.

This "notwithstanding any other provision of law" language is what the Office of Legal Counsel opinion indicates would be necessary before the OLC would believe that Congress really means to ensure access to "all records."

But, overturning an Office of Legal Counsel opinion that was roundly criticized by both sides of the aisle is just the beginning.

In addition, the legislation also bolsters IG independence by preventing agency heads from placing them on arbitrary and indefinite administrative leave.

The bill would also promote greater transparency by requiring IGs to post more of their reports online.

And the bill would increase accountability by equipping IGs with tools to require testimony from contractors, grantees, and former employees who have retired from the government, often while under investigation by the IG.

So, in September, we attempted to pass this bill via unanimous consent.  It has been more than a month 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 Office of Legal Counsel opinion as quickly as possible.

Senator Cornyn noted that the OLC opinion is "ignoring the mandate of Congress" and undermining the oversight authority that Congress has under the constitution.

Senator Leahy said that this access problem is "blocking what was once a free flow of information" and called for a permanent legislative solution.

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 have raised concerns about guaranteeing IG access to certain national security information.

Let me explain why this bill should not be held up for that reason.

First, this bill is co-sponsored by a bipartisan group of senators, including Democrats and Republicans on the Intelligence Committee, such as Senators Mikulski, Lankford, and Collins.

Second, the Inspector General of the Intelligence Community supports the bill.

Third, the bill would not affect intelligence agencies under Title 50, such as the CIA or the Office of the Director of National Intelligence.

Fourth, 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.

Fifth, there is already a provision in the law that allows the Secretary of Defense and the Director of National Intelligence to halt an Inspector General review to protect vital national security interests.  Nothing in the bill would change that already-existing carve-out for the intelligence community.

All IGs should have the same level of access to records that their agencies have.   And, all IGs are subject to the same restrictions and penalties for disclosure of classified information.

No inspector general's office has ever violated those restrictions; they have an unblemished record of protecting national security information.

If there are changes that can be made to the bill so that it can pass by unanimous consent, I am ready to get it done.  However, any changes or carve-outs for the intelligence community should not impact other IGs.

The point of the bill is to overturn the Office of Legal Counsel opinion and restore complete, timely, and independent access for IGs to agency records.

So, that goal must be preserved.

We all lose when Inspectors General are delayed or prevented in doing their work.  And every day that goes by without a fix is another day that watchdogs across the government can be stonewalled.

So, I urge my colleagues to support this bill.

Finally, I want to submit for the record letters that I mentioned earlier, and letters I've received from the inspector general community, and also an editorial that was recently published by the Washington Post in support of this bill.

I yield the floor.