Late Wednesday night, the Senate passed its version of legislation to amend the law governing federal Inspectors General, after an amendment offered by Sen. Jon Kyl (R-AZ) finally broke through the logjam that had blocked the bill's passage since last November.
Congratulations are most definitely in order for the bill's bipartisan sponsors--Sens. Joe Lieberman (I-CT), Susan Collins (R-ME), and Claire McCaskill (D-MO)--but special kudos should be saved for their dedicated staffers who labored so long and hard to deal with the objections of different stakeholders, not least among them the White House.
In attaining a form that could pass unanimously, the bill was frankly watered down from its original form. POGO has strongly supported certain changes to current law that we believe would increase both the independence and accountability of the IGs; see our February report on the first part of our ongoing review of the IG system, Inspectors General: Many Lack Essential Tools for Independence. We regret the current bill does not include all the improvements we favor, but are pleased to see the important provisions that it does contain. We will continue to work with members on both sides of the Hill in the hope they will eventually enact all of the recommendations we proposed in our report.
The bill now must go to conference to sort out the differences with H.R. 928, passed by an overwhelming 404-11 last year. There are some major differences between the two bills, most notably regarding terms of office (the House favors a 7-year term for presidentially-appointed IGs, but the Senate dropped that provision in deference to administration objections) and dismissal (the House listed ten reasons that would constitute the only cause for dismissal of an IG; the Senate merely requires the president to notify Congress 30 days before dismissal). However, the political reality is such that if anything is going to prevail this year it will likely be the Senate version, which carries the administration's grudging agreement, if not quite enthusiastic support.
As the 64 statutory IGs gather for their annual conference next week, they will have much to celebrate in the Senate bill's passage:
- The president must notify Congress 30 days prior to the removal of any IG, along with the reasons for dismissal or transfer.
- All IGs must have either their own legal counsel or must use the services of another IG's lawyer. In any case they must not rely upon advice from their agency's general counsel, a clear conflict of interest.
- A Council on Integrity and Efficiency for Inspectors General was created, combining the two existing councils set up under executive order. Now with a statutory basis, the Council will help IGs coordinate training and other programs. The Council will also establish a statutory Integrity Committee to deal with accusations of wrongdoing brought against IGs or their senior staff members. Specific provisions will ensure more accountability and transparency in future investigations of such allegations.
- All IG websites must be clearly and directly accessible from their agencies' home pages, and IG reports must be posted within 3 working days of release.
- The Council on Integrity and Efficiency will recommend a slate of qualified candidates for any IG vacancy.
- The president's budget submission will reflect not only how much money is requested for each IG office, but also how much money the IG requested.
- Pay levels for all IGs were raised, but in return IGs may not accept a cash bonus or award.
Senator Kyl's amendment clarified, improved, and/or watered down some of the provisions, but was necessary to gain White House approval and unaimous consent of the Senate:
- Although the president must give Congress 30 days' notice before an IG is removed, during that time he may take other actions, such as suspending him or preventing him from taking any official actions. This clearly improves the provision in the case of an IG accused of wrongdoing. As Kyl noted, "We should not assume that inspectors general will be immune to human failings."
- Sen. Kyl also clarified that although IGs must seek advice from their own counsel, the agency's general counsel will remain the chief legal authority within the agency.
- The budget provision was somewhat diluted by a requirement that an IG must assert that he would be inhibited in the performance of his duties before he may submit a separate budget request.
- Finally, Kyl's amendment did away with Justice Department Inspector General Glenn Fine's most cherished desire: that he be granted authority to investigate Justice lawyers accused of engaging in professional misconduct. Such allegations--as distinct from questions of fraud or abuse--are currently handled by the DOJ Office of Professional Responsibility (OPR), and Kyl, in a masterpiece of faint praise, announced that "there is no evidence that this Office's reviews are anything less than adequate."
Kyl did grouse that OPR had dared to look into legal analyses produced to support the Bush administration's war on terror, but concluded that "the notion of extending that Office's authority to the inspector general is totally unacceptable. Inspectors general investigate waste, fraud, and abuse. They are suited neither by temperament nor experience to second guess whether a Justice Department lawyer should have investigated a matter, prosecuted a case, or offered a legal opinion."
POGO believes that the OPR/OIG situation is not ideal, however. Necessary changes include making clear that OPR would not have jurisdiction over allegations involving the Attorney General or anyone in his office, or the Deputy Attorney General or anyone in his office, since OPR reports to the AG and the Deputy AG. Further, the OIG should be informed immediately of every investigation opened by OPR. We have been informed that both of these changes could be accomplished by "the stroke of a pen," as one senior DOJ official put it; i.e., by internal order signed by the Attorney General. However, POGO believes that ultimately these changes should be made legislatively.
We applaud the Senate for its action, and fervently hope that the two Houses will name conferees and produce a compromise bill ready for the president's signature absolutely as soon as possible.