POGO Urges the Incoming Administration to Pursue Good Governance Reforms
Dear President-Elect Biden and Vice President-Elect Harris:
Congratulations on your recent elections as president and vice president of the United States. I wish you the very best as you take on the task of leading this great nation.
I serve as executive director of the Project On Government Oversight (POGO), a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.
You ran on a platform of ensuring that government will work for all the people, not just the wealthy or politically well-connected.1 POGO applauds your commitments to reduce government corruption, restore ethics in government, and restore faith in government. The following are recommendations that you can implement immediately that would begin to deliver on your promises.
Ethics in Government: It’s critical that all government officials work to benefit the public, not just themselves and their former employers or clients. Unfortunately, in recent years, federal officials appear to have blurred the line between working for the American people and working for their own personal financial interests.2 While both the private and public sectors have a number of tools to protect themselves from conflicts of interest, the rules for government officials are not uniformly enforced. As such, senior agency officials too often pass through a revolving door from government service to the very industries they had regulated and overseen, and back again. I urge you to require departing government officials to enter into a binding revolving door exit plan that sets forth the programs and projects from which the former employee is banned from working. These plans should be filed with the Office of Government Ethics and made available to the public. In addition, your administration should post final submissions of all ethics paperwork for executive branch officials occupying positions for which the pay is set at Levels I or II of the Executive Schedule. Establishing these clear restrictions and additional transparency requirements will allow the public to see how government agencies interpret laws to prevent conflicts of interest and whether there is consistent and fair application of those laws.
Issue a Strong Ethics Executive Order: Though legislation will be necessary to address the myriad weaknesses in our ethics laws that were exposed by the Trump administration, you can set the stage for these reforms on day one. We urge you to issue an executive order establishing ethics commitments for incoming officials; require every appointee to declare a commitment to the government’s ethical values by signing ethics agreements, and to strictly comply with them; and increase transparency by directing the government to collect ethics compliance documents and post them on the Office of Government Ethics’ website.
The executive order should also mitigate financial conflicts of interest. It should prohibit the acceptance of any payment given in anticipation of employment with this administration, commonly referred to as golden parachutes. In addition, consistent with the executive orders issued by the Obama and Trump administrations, your executive order should bar all appointees from accepting gifts from lobbyists and bar them for two years from working on matters related to their former employers or clients.3 It should also bar employees from outside employment and prohibit the current administration’s practice of using appointed, unaccountable advisors not subject to the ethics rules. Furthermore, you should mandate that you, your spouses, and the most senior appointees in your administration live up to the same standard of ethics by requiring everyone to divest their financial holdings, only retaining diversified mutual funds, treasuries, and other non-conflicting assets.
Most importantly, your executive order should reflect the full range of government influence operations and amend the current definition of “lobbying activities”4 to include not only registered lobbyists but also individuals who advise for-profit interests behind the scenes. Your executive order could go further than President Obama’s executive order and prohibit anyone engaging in those lobbying activities from working for the agencies they lobbied and bar them from working anywhere in the administration on specific issues on which they lobbied. The executive order should distinguish between for-profit lobbyists and public interest lobbyists, however, and should exempt nonprofit lobbyists from such restrictions to ensure that those working in the public’s interest are able to join the administration.
Inspectors General: As you both know from your extensive service in the Senate, inspectors general play a vital role in conducting independent oversight of the executive branch. Inspectors general are the eyes and ears of Congress when it comes to identifying waste, fraud, and abuse in federal agencies. In the last year, we’ve seen constant attacks on the integrity and independence of inspectors general.5 The previous administration has fired or removed inspectors general, with little explanation, for simply doing their job or to apparently deter inspectors general from conducting rigorous oversight of the administration. POGO calls upon you to commit to ensuring the independence of inspectors general, and to pledge to only remove inspectors general for cause and to provide a detailed explanation of that cause to Congress.
To ensure robust oversight in our agencies, I also urge you to put forth qualified nominees for the 13 vacant inspector general positions that require presidential appointment.6 The large number of inspectors general operating in an acting capacity poses a risk to the ability to root out waste and fraud. As POGO has previously noted, “If the acting officer is ‘auditioning’ for the job, they may not want to make waves by investigating actions of the administration they are hoping will nominate them to fill the job permanently.”7 Furthermore, since they are only acting in a caretaker role until a permeant replacement is found, an acting inspector general may not make the long-term strategic decisions that are necessary for the organization.
Whistleblowers: Whistleblowers, too, are critical in exposing waste, fraud, abuse, and corruption in the federal government. Unfortunately, retaliation against whistleblowers is a persistent problem and too often goes unpunished. I urge you to set a clear standard that your administration will not tolerate whistleblower retaliation by requiring agency heads to send a public, written explanation to the White House, congressional committees of jurisdiction, and the agency inspector general when the agency head declines to follow recommended disciplinary measures against agency supervisors who are found to have engaged in whistleblower retaliation. Furthermore, I urge you to expeditiously nominate qualified individuals to sit on the Merit Systems Protection Board, which adjudicates most federal whistleblower retaliation complaints but has lacked a quorum since early 2017.8
Review Programs for Cost Savings and Revenue Enhancement: In addition to setting a positive environment to fully empower inspectors general and whistleblowers to come forward and report waste and fraud, your administration should conduct a government-wide review of spending to look for areas to rein in government spending. While all agencies have opportunities ripe for savings, this is especially true at the Department of Defense. The Pentagon has long been overdue for a reduction in spending, but instead has seen a rise in spending in recent years, including billions of dollars for contractors.9 Additionally, revenues collected from extraction of resources from public lands should be revisited to properly collect what is owed to the American public. With the national debt now higher than it has ever been, and the likelihood of necessary new spending to combat the coronavirus pandemic, looking for potential savings and increased revenues in existing programs will help ensure the United States returns to a more fiscally responsible path.
Law Enforcement: This past year, horrifying videos and headlines about deaths of Black Americans at the hands of law enforcement led to large scale protests and demonstrated the urgent need and desire for law enforcement and policing reform at all levels.10 While such reform will not be accomplished overnight, there are some steps your administration can take from the outset to begin to address this dire situation. I urge you to mandate the compilation and public release of information about deaths in federal custody, uses of deadly force by federal law enforcement, and misconduct by federal law enforcement agents and prosecutors. That data should include the race and other protected classes of victims in federal custody. You can also direct federal agencies to collect information such as witness statements and data regarding settlements and awards paid in litigation for federal officials’ misconduct and wrongful death lawsuits. Data should be publicly available with redactions to protect community members’ identities. Increasing transparency will not address the problem entirely, but it will help the public and policymakers better understand the scope of the problem so that we may begin the hard work of holding government actors at all levels accountable for their actions and ensuring justice is pursued.
Government Surveillance: While recent digital and technological advancements create great opportunities in many aspects of life, unchecked they also pose a grave threat to civil liberties. I urge you to direct the Department of Justice to devise and implement specific and clear restrictions governing the surveillance of Americans. This should include requiring warrants for essentially all surveillance and data collection activities. Furthermore, certain practices like bulk collection of internet browsing data should be prohibited. In enacting these and a range of other restrictions on government surveillance authorities, the executive branch can deliver on its solemn promise to protect and defend the Constitution and all of the rights and liberties conferred by it.
Transparency in Government Operations: Having both been members of the Senate, you understand the importance of congressional oversight and have seen first-hand how it can be undermined by a recalcitrant executive. I urge your administration to reset the terms of engagement with Congress in a way that promotes healthy information sharing. To start, I urge you to direct your attorney general to rescind the Department of Justice Office of Information Policy’s 1984 Guidance, which allows agencies to respond to congressional requests for information with documents that have been subjected to Freedom of Information Act redactions.11 No Member of Congress should be denied information on the basis of FOIA exemptions, which are designed to protect information from public release—not to shield the executive branch from congressional scrutiny.
In addition, you should decree by executive order that each agency—including the White House, the Vice President’s residence, and all other regularized meeting places for executive branch personnel and outside actors—shall report to Congress and make publicly available visitor logs and meeting records. These records should include calendars in a searchable, sortable, and downloadable electronic format. These records should be made available within one month after your inauguration and updated every 30 days thereafter.
Additionally, given the impact government rules and regulations have on the livelihoods of Americans and businesses, you should mandate greater transparency from the Office of Information and Regulatory Affairs in the regulatory review process. Your administration should instruct all agencies to fully comply with the public reporting requirements detailed in Executive Order 1286612, which executive agencies and the Office of Information and Regulatory Affairs have routinely ignored.13 Congress and the public have a right to know about efforts by all parties, those in and out of government, to influence the rulemaking process.
Finally, the Office of Legal Counsel at the Department of Justice serves as the in-house legal expert for the executive and provides formal legal analysis considered to be binding on the executive branch. While the office’s authority does not extend to the other branches of government, it can severely hinder Congress’s ability to conduct oversight. For example, in 2017 the office issued an opinion declaring that, “Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”14 Understanding the need and value of congressional oversight, you should direct your attorney general to conduct a review of final Office of Legal Counsel opinions and rescind those memos that undermine vital constitutional principles, including civil liberties, the separation of powers, and war powers, among others. Identifying and rescinding legal opinions that take an expansive view of executive authorities will strengthen the rule of law and promote trust in essential public institutions while simultaneously safeguarding integral constitutional principles.
Furthermore, many of these legal opinions are not public. As president, you should direct the Department of Justice to publish all final Office of Legal Counsel opinions within 30 days of their issuance.
COVID Relief Oversight: The ongoing pandemic has proven to be an unprecedented challenge that continues to demand a strong federal response, and more must be done to ensure proper oversight of federal relief assistance. I urge you to direct the Office of Management and Budget to rescind its April 10 guidance that prevents the collection of reports on the use of relief funds from the recipients of these funds, and direct the office to issue new guidance that instructs agencies to collect all data Congress spelled out in the Coronavirus Aid, Relief, and Economic Security Act.15 In that April guidance to federal agencies on how to report the allocation of relief funds, the Office of Management and Budget ignored a number of the act’s clear reporting requirements modeled after the successful Recovery Accountability and Transparency Board and falsely claimed that using the existing USAspending.gov infrastructure is sufficient.16 Your Office of Management and Budget should direct agencies to follow the law and collect this information so that Congress can approach future emergency relief with the benefit of knowing which programs are most successful at countering the economic impact of the current pandemic.
Beneficial Ownership: Anonymous companies facilitate a wide variety of illicit activities that directly harm U.S. domestic and foreign policy interests, including engaging in public corruption, government and defense contract fraud, organized crime, intellectual property theft, money laundering, terrorism financing, fueling the opioid crisis, and more. Disclosing the true owner of these companies will ensure greater transparency, help crack down on transnational crime, and make our nation safer.17 You should direct the General Services Administration and other federal agencies to require bidders for federal contracts and grants to disclose information on the company’s beneficial owners, and to use a non-proprietary identifier such as the globally recognized Legal Entity Identifier. Disclosing this information will help the federal government know more about the real entities that own and control companies wishing to do business with the United States.
Again, congratulations on your recent election. You have the opportunity to begin delivering on your promises to the American people on day one. To that end, I urge you to consider these few critical but achievable recommendations the help ensure an open and accountable government, demonstrating that you can truly build back better. If you have any questions or need additional information, please contact me at [email protected] or (202) 347-1122.