For over 35 years, the Project On Government Oversight (POGO) has championed good government reforms as a nonpartisan, independent watchdog. Implementing the following recommendations will help the country achieve a more effective, accountable, open, and ethical government—one that is truly responsive to the needs of its citizens. Furthermore, while it is always a goal to have the best possible government at the lowest feasible cost, it is imperative that Congress shrink the cost of government thoughtfully. The place to begin to save billions of taxpayer dollars is to reduce waste, fraud, and abuse. We welcome the opportunity for meaningful discussions about this roadmap for reform.
The federal government spent over $472 billion on goods and services in FY 2016. Year after year we hear about weapons systems and IT projects that are over budget and behind schedule or just plain wasteful. The following reforms would help prevent those all-too-familiar problems. They would protect taxpayers, save money, and make the contracting system more transparent, accountable, and efficient.
In the FY 2008 National Defense Authorization Act, whistleblower rights enforceable through district court jury trials were enacted for all Department of Defense contractors, including the National Security Agency contractors. In 2009, all government contract employees paid with stimulus funds, including other IC agencies that were not covered by the 2008 NDAA, like the Central Intelligence Agency, were given whistleblower protections. These whistleblower shields were so successful in deterring waste and contractor abuse that the Council of the Inspectors General on Integrity and Efficiency proposed a permanent expansion of these protections for all government contractors. However, the stimulus protections expired with the funding, and all the protections were stripped from the NDAA in 2012. Further efforts to codify the protections have stalled. In the absence of adequate protections, IC whistleblowers only have two alternatives to almost certain retaliation: remain silent observers of wrongdoing or make anonymous leaks. Additionally, while afforded more protections than their contractor counterparts, IC federal employees lack many important protections. IC federal employees enjoy protections under a Presidential Policy Directive issued by President Obama, which could be revoked at any time. It is imperative to both increase and codify these protections.
In another disturbing step backwards, the Federal Circuit Court of Appeals gave agencies the ability to designate virtually any federal job as “sensitive,” with no meaningful oversight of such a determination. To hold a sensitive position, an employee must be designated as able to have a sensitive job. Because there is no oversight or effective guidance of what makes an employee eligible for a sensitive designation there is no oversight of the removal of that designation. A sensitive employee has no due process rights to challenge a decision to revoke their “sensitive” designation and remove them from their position. Already agencies have begun designating many positions as sensitive, making thousands of employees vulnerable to being fired without due process.
Adding to the difficulties federal whistleblowers face, it is challenging for Congress to ensure the protections that are in place are being properly implemented. For instance, Congress cannot effectively oversee enforcement by Inspectors General of federal whistleblower protections because so few of them track or report the number of complaints they receive or how they are handled.
The Department of Justice has been lax in its enforcement of the Foreign Agents Registration Act, a law that requires American lobbyists working on behalf of foreign interests to register with the Justice Department. In addition to reporting on their contracts, political contributions, and any political activity done on behalf of their foreign clients, the registrants are required to file within 48 hours any informational materials distributed to two or more people. However, this law is regularly violated and a loophole makes enforcement by DOJ nearly impossible. These informational materials contain all kinds of details about what the countries are lobbying for, including trade deals and aid money. And when the registrants fail to file the informational materials on time, government policies can be influenced and even created without the public knowing what’s going on behind the scenes.
Inspectors General are on the front lines protecting taxpayers from waste, fraud, and abuse. They also serve as the eyes and ears of Congress within the executive branch. More generally, the Council of the Inspectors General on Integrity and Efficiency has estimated that potential savings reflect about a $17 return on every $1 invested in the IGs. Congress has enacted various laws over the years to strengthen IG independence, but in light of several recent incidents it has become apparent that additional legislative changes may be warranted. One federal IG stepped down from his post in August 2014 after languishing on administrative leave for nearly two years. Around the same time, a group of 47 IGs wrote to Congress alleging that federal officials have impeded their ability to access agency records. In addition, there are still far too many IG offices headed by acting officials who are put in the position of currying favor with agency leaders, in order to attain a confirmed position. IG potential is also being squandered by their limited participation in improper payment prevention, where their expertise and skills could enhance efforts to curb this trillion-dollar problem.
While it is important to affirm the independence of IGs, they also must be held accountable when they fail to live up to their mission. IGs often focus on unimportant but easy matters and neglect the substantive work they should be carrying out. Even worse, recent reports reveal an unfortunate trend of IGs allegedly hiding or whitewashing negative findings about agency malfeasance. In addition, there is still too much uncertainty about the process for investigating allegations of IG misconduct and removing IGs who are unfit for office.
In recent decades, incoming Presidents have limited the influence of the revolving door through an ethics Executive Order that lays out that different restrictions both for incoming appointees, as well as for outgoing officials. Rather that changing these standards every four our eight years, the Congress should codify best practices. The well-greased revolving door between government and industry has frequently undermined the integrity of contracting, enforcement, and regulatory decisions. In the world of government contracting, POGO has identified hundreds of instances involving high-ranking government officials who shifted into the private sector to serve as lobbyists, board members, or executives of the largest federal contractors in the field they used to oversee. In the world of Wall Street regulation, for instance, POGO has reported that former employees of the Securities and Exchange Commission routinely helped private entities try to influence SEC rulemaking, counter the agency’s investigations into suspected wrongdoing, soften SEC enforcement actions, block shareholder proposals, and win exemptions from federal law. The revolving door also enables industry alumni to serve in senior government positions where their decisions can benefit former employers or clients. POGO has found that some big businesses make it financially advantageous for executives to take government jobs. To make matters worse, the government ethics system often relies on current and former employees to disclose and manage their own conflicts of interest.
The Office of Legal Counsel, as part of the Department of Justice, interprets federal laws for the Attorney General and all executive branch agencies. These interpretations of law from within the executive branch have immense influence on how the government operates, including setting boundaries on presidential power—and many of its legal opinions and memoranda are kept from the public, effectively creating a body of secret law. Previous OLC memos have explained the legal justification to use torture, to carry out targeted killings with drones, and to conduct domestic surveillance in the United States. Despite the importance of these memoranda, they are only made public at the discretion of the OLC.
There is great danger in this expanding body of secret law, where the laws passed by Congress are interpreted and applied behind closed doors by a small group of government officials and federal judges. Laws made and implemented in secret restrict the ability to conduct oversight, engage in public debate, and make legislative correction—ultimately threatening the foundations of our constitutional democracy. When the American people are not allowed to influence government policies or to even know what the laws are, then democracy fails. In addition to the lack of public access, Congress—a co-equal branch of government—lacks full and consistent access to OLC opinions. This hobbles the legislative branch’s ability to conduct its constitutional obligation to oversee the executive branch.
Additionally, the 114th Congress passed necessary and useful updates to the Freedom of Information Act, but there are other reforms that are necessary to make sure the public can use FOIA to better understand what the federal government is doing and why.
Finally, the Federal Employee Viewpoint Survey is an annual survey administered by the Office of Personnel Management that measures employees’ perceptions of the effectiveness of their employing agency. The survey results provide a valuable look into perceived successes and failures of the agency, and are a great oversight tool. POGO has used such surveys in our own investigations. They have led to constructive conversations with Congressional offices on problems that need addressing within agencies. Limited survey results are posted on the OPM website annually, but the more detailed agency-specific results are not uniformly posted. Those are where the real meat of the survey results can be found, and should be posted proactively on OPM’s website and each individual agency’s website.
Recognizing that Congress has been looking at other areas where savings exist, we want to call attention to the following areas that are ripe for far more significant savings yet remain largely unexamined. Spending money on facilities, projects, and weapons systems that we do not need does not make our country safer, although it may be politically advantageous for Members of Congress. Under the guise of national security we have been spending at an alarming rate and not seeing much increased security in return. National security is a core responsibility of the federal government, which is why it is so important that Congress closely examine national security spending to ensure taxpayer dollars are only used in ways that actually make us safer and meaningfully contribute to national defense.
The Department of Energy continues to allocate billions of dollars to wasteful facilities, despite viable alternatives. The Department of Defense continues to request and receive money for failed or failing programs and untested weapons systems. Congress needs to make sure that bureaucrats’ pet projects are not wasting resources better spent on true national security priorities.
Defense spending is in serious need of reform, both in how and what we buy. Congressional oversight is key to instilling discipline in the system. Some weapons are less effective but cost far more than current weapons in the inventory. Other weapons are developed without determining whether these systems can even combat the threats that US troops are likely to face in the short and medium term. Past reform efforts have failed to slow cost and schedule growth throughout the Pentagon’s acquisition system. In fact, the problem has only gotten worse. Just a few examples are the Joint Strike Fighter program, the Littoral Combat Ship program, and the Ford-class aircraft carrier program. The GAO found that costs for the Pentagon’s weapon program portfolio increased by nearly $469 billion in 2015, with an average delay of over two years.
For the most part, improving discipline in weapons spending doesn’t require new rules but better enforcement of the rules that exist, especially as they relate to hard-nosed assessments of whether critical technologies are ready early in a weapon’s acquisition. At key decision-points known as “Milestones,” where a major weapons program advances from technology validation (Milestone A) to full-scale development (Milestone B) to production (Milestone C), the Pentagon often does not exercise any meaningful oversight or even make any significant decisions in the face of substantial problems.
Natural resources extracted from federal lands provide one of the federal government’s largest non-tax sources of revenue. Since 2006, the Department of the Interior has collected over $24 billion in royalties, revenues, and other fees from companies that extracted oil, gas, coal, and other minerals from federal lands. However, the GAO, Interior Inspector General, and other watchdogs have long questioned whether the federal government is truly ensuring that taxpayers receive their fair share for extraction on public lands. What’s more, on account of a 19th century law that’s still on the books, the federal government doesn’t collect any royalties from companies that extract valuable “hard rock” minerals such as gold, copper, and silver from public lands.
The Office of Government Ethics is tasked with overseeing executive branch compliance with ethics laws and regulations, an essential function in the federal government. However, as the director of OGE stated in a hearing before the Subcommittee on Government Operations in 2015, the office lacks sufficient authority to investigate complaints of ethical noncompliance. Granting OGE, as the federal ethics laws experts, enforcement power over alleged ethical violations would be a natural extension of the office’s current work.
Unfortunately, the office does not proactively post many ethics records, including granted waivers, that would allow for oversight and increased transparency around ethics compliance. OGE isn’t the only office where this is a problem—POGO has been waiting over 7 years for a response to a Freedom of Information Act request to the Department of Defense for ethics waivers signed during the Obama Administration. Additionally, OGE isn’t insulated from political pressure from the executive branch, potentially impeding its ability to work independently. Currently the Director of OGE serves at the pleasure of the President, creating murky areas when the Director must enforce ethics requirements over the President’s staff.
Necessary reform in our government is not limited to the executive branch. POGO has identified a few key areas where updating Congressional rules can lead to increased public confidence in Congress as well as improved staff capacity to conduct necessary oversight.
The House and Senate intelligence committees were created to consolidate review of intelligence matters, inform the entire Congress of intelligence activities, and hold public hearings to inform the broader public. However, these committees have fallen short of the oversight goals they were intended to accomplish. Current Members of Congress as well as some of the same Members of Congress and staffers who established the intelligence committees have said the committees and Congress are no longer meeting their charge. In an effort to revamp these committees, POGO has joined a coalition of groups working to modernize the rules of the House Permanent Select Committee on Intelligence (HPSCI), and many of the resulting recommendations could be applied to the Senate Select Committee on Intelligence (SSCI).
Additionally, there needs to be increased transparency about staffers in Congressional offices that are paid by outside organizations. Every year Members of Congress staff their offices with Fellows who are paid by corporations, foundations, universities, nonprofits, and other outside private entities. These Fellows are often indistinguishable from permanent staff members: they work on writing legislation and Floor speeches, and represent the Member in meetings with other offices and constituents. Due to the breadth of their responsibilities, Congressional offices must make sure that Fellows have no conflicts of interest and that the arrangement gives no undue advantage to special interest groups. On the Senate side, the supervisor of the Fellow is required to report to the Ethics Committee the source of the Fellow’s compensation as well as the amount or rate of compensation and these reports are available to the public. The House does not have a similar rule and does not require Fellows or their supervisors to disclose the compensation details.
The Food and Drug Administration receives much of its budget—almost $800 million in 2015—from “user fees” paid by the drug companies it is meant to regulate. These are direct payments by manufacturers for certain services provided to them by the FDA. Every five years, the legislation authorizing the FDA to collect the fees expires, and the FDA is required by law to actually negotiate with the pharmaceutical industry in order to keep the money coming in.
This arrangement gives the pharmaceutical industry extraordinary influence over its government overseer, and leaves the regulator beholden to the regulated. It spares taxpayers some of the burden of paying for consumer protection—unless those costs are passed along to consumers in the form of higher drug prices. However it also has the very likely impact of compromising consumer protection.
The Department of Veterans Affairs made the news in 2014 for its shameful treatment of veterans waiting for care. At the same time it became clear that the Department was ignoring the concerns of whistleblowers, retaliating against them, and using fear to make sure other employees toed the Department line. Hundreds of VA employees as well as doctors, nurses, and technicians from hospitals across the country came forward to tell POGO their stories of retaliation when they tried to raise concerns about problems affecting patient safety and treatment. This culture of fear, bullying, and retaliation at the VA is a systemic problem reaching every level of facilities across the country.
The 114th Congress approved an overhaul of the VA’s whistleblower process. This included changes that POGO supported, such as mandatory punishments, after due process, for those supervisors and managers who retaliate against whistleblowers. However, it also included a troubling provision that creates a “Central Whistleblower Office” inside the VA that will handle all the whistleblowers in the agency. This sounds like a good thing, but those who understand how bad the situation is in the VA know that this may do far more damage than good. It is incredibly important that whistleblowers have the ability to go to an independent office to report wrongdoing, since an internal office could be pressured to act in the VA’s interest by covering up problems and silencing whistleblowers. It is for this reason that most federal employees make whistleblower disclosures to their agency’s Inspector General or to the Office of Special Counsel. The VA’s new Central Whistleblower Office requires that all whistleblower disclosures and claims of retaliation go through that one office.