2017 Baker’s Dozen of Suggested Congressional Oversight Priorities and Legislative Reforms
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.
1. Enacting Pro-Taxpayer Contracting Reforms
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.
- Improve the government’s ability to compare workforce costs. Proposals to reduce the federal workforce often forget to examine the costs of the “shadow workforce” of contractors. Congress should pass legislation to ensure that federal agencies are better informed about all of the costs of hiring military, civilian, and contractor workers. While often justified as increasing efficiency and savings, shifting services from federal employees to contractors can significantly increase costs. Improved cost modeling and improved inventories of contracts for services will result in cost-saving budgetary and workforce decisions, ensure contractors are not performing inherently governmental functions, and improve military readiness and government operations.
- Protect the False Claims Act. Contractors are constantly attempting to remove the strongest provisions from the federal False Claims Act, which has been used to recover $4.7 billion in FY 2016 alone and over $53 billion since 1986. Congress should not buy in to promises of self-policing and should instead protect the Act and hold fraudsters accountable.
- Adopt DoD proposal to buy truly commercial items. The Department of Defense has proposed narrowing the definition of a “commercial item” to mean goods or services that are actually sold to the general public in like quantities. This proposal is a huge improvement over the current broader definition, which includes goods or services merely offered for sale and not actually sold on the commercial market. Congress should give DoD what it wants here and redefine commercial items to protect the agency and taxpayers from wasteful spending—commercial should mean commercial. Congress should also cease attempts to lock DoD into previous commercial item determinations and prices, which again doesn't take advantage of the actual commercial market and would result in more wasteful spending. Finally, Congress should commission a study to ensure that sole-source commercial item awards are the exception, not the rule, and that sole-sourcing contract pricing is fair and reasonable.
- Consolidate all federal-contract audit functions into one office. Currently, contract audits are performed by numerous federal offices, including DoD’s Defense Contract Audit Agency, small auditing offices in other agencies, contracted auditors, and various Inspectors General. An independent, central auditor would be more efficient than that sprawling system. Unlike most agencies, a Federal Contract Audit Agency could save more than it would cost to run it by uncovering waste and fraud across the federal government. The FCAA would provide all federal agencies with a needed check on contractors, ensuring by pre- and post-award audits that the government is not being overcharged for goods and services. It would also be more effective than provisions passed in the FY 2017 National Defense Authorization Act that allow defense contractors to choose their own private auditors. Those provisions should be repealed to maintain government oversight of federal defense contracts.
2. Improving Intelligence Community Whistleblower Protections and Oversight of Current Whistleblower Law Implementation
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.
- Restore best practice whistleblower protections for IC contractor employees. Congress should enact legislation that will protect any disclosure made by an employee of a contractor or subcontractor to a supervisor, Member of Congress, or an Inspector General; require an Inspector General to look into an allegation of misconduct within 10 business days to determine whether it appears credible; protect any good-faith whistleblower from professional retaliation and from criminal prosecution; and mirror the enforcement provisions afforded under the Whistleblower Protection Act or the Whistleblower Protection Enhancement Act.
- Strengthen and codify whistleblower protections for IC federal employees. Congress should enact legislation to protect disclosures made by IC federal employees to their supervisor, a Member of Congress, or an Inspector General so that the employees can come forward without threat or fear of reprisal. Current law allows these employees to make whistleblowing disclosures but does not protect them from retaliation or reprisal.
- Restore due process rights for “sensitive employees” who have been fired or charged with misconduct. Congress should enact legislation to restore due process rights for employees who were removed from their positions because of a change in “sensitive” status. This right existed for all federal employees from 1883-2012 and guaranteed them a day in court before an independent administrative board after termination of employment.
- Require Inspectors General to report reprisal investigation statistics. Congress should require all Inspectors General to include in their Semiannual Reports the number of reprisal cases received, closed, investigated, dismissed, and substantiated.
- Permanently codify the pilot program of all circuit review of whistleblower appeals. A pilot program established by the WPEA, which allows whistleblowers who appeal a judgment of the Merit Systems Protection Board to file their appeal in any US Court of Appeals with jurisdiction instead of limiting them to the US Court of Appeals for the Federal Circuit, has been a success. It has not resulted in a flood of whistleblower appeals as opponents of the program asserted it would do, and it allows for potential circuit splits, which encourage sister circuits to review the laws as well as allow for possible Supreme Court review. It is working exactly as intended and should be made permanent before it expires in November 2017.
- Codify the right for whistleblowers to access jury trials. Whistleblowers deserve a forum where they will be guaranteed due process and given a fighting chance to prevail in their retaliation claims. Currently, federal whistleblowers are the only major sector of the labor force in the country without access to juries to enforce their rights. This must be changed. Congress postponed an initiative that would have ensured that access when it passed the WPEA in 2012, and instead asked the Government Accountability Office to study the advantages and disadvantages of jury trials for federal whistleblowers. The resulting report, Whistleblower Protection: Additional Actions Would Improve Recording and Reporting of Appeals Data, found no significant disadvantages. Congress should act to provide federal whistleblowers access to jury trials.
3. Addressing Problems and Loopholes in the Foreign Agents Registration Act
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.
- Increase oversight and enforce the Foreign Agents Registration Act. The Department of Justice should conduct more audits, use all tools available to ensure better compliance, and strictly enforce the law when violations are found. When incomplete, inaccurate, or late filings are submitted, DOJ should use its authority to suspend the foreign agent from lobbying. If necessary, DOJ should seek court orders to prevent foreign agents from lobbying when they violate the law.
- Incorporate civil fines into FARA. Congress should amend FARA to give the DOJ the authority to levy civil fines to punish offenders who do not properly label their FARA filings, who file late, who don’t file if they should have, or who don’t register if they should have. These penalties should increase with the severity and number of infractions.
- Require the filing of all informational materials regardless of number of recipients. The Department should require registrants to file informational materials if they are distributed to any person, and Congress should ensure that the Department implements this requirement. If a lobbyist sends an email or letter to one pivotal legislator, such as a Committee chairman or someone working on a specific foreign policy, the lobbyist would not currently have to file that material. This law should be expanded to include documents sent to a single recipient.
- Close the loophole between FARA and the Lobbying Disclosure Act. A loophole allows some lobbyists who are working solely on behalf of a foreign commercial interest, rather than a foreign government or political party, to register under the Lobbying Disclosure Act instead of FARA. There is significantly less transparency on lobbying activities conducted under the LDA than there is under FARA. And foreign governmental and commercial interests are not always as distinct from one another as they are in the United States. As seen with President Trump’s former National Security Advisor, Michael Flynn, this “uncertain standard” can cause some who should register under FARA to register under the LDA instead. Congress should require the Department of Justice to perform a formal assessment of the LDA exemption, along with the other current FARA exemptions, to determine whether legislative changes are warranted.
4. Making Federal Watchdogs More Independent, Accountable, and Effective
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.
- Strengthen IG independence. Congress should consider independence-strengthening measures such as putting more pressure on the President to fill IG vacancies, stipulating that IGs can only be removed for cause such as neglect of duty or abuse of authority, and requiring more reporting on agency responses to IG recommendations.
- Make IG reports more meaningful and accessible to the public. Congress should revamp IG reporting requirements so that semiannual reports are more meaningful and reflective of the information that Congress and agencies actually need. Reporting on the number of audits conducted by an IG in a year is not a meaningful measure of the quality of the IGs work. Congress should also require IGs to report whether their recommendations were implemented, if they achieved the predicted results, and how much of any “questioned costs” and “funds to be put to better use” are actually recovered or put to a better use. In determining these new reporting requirements, Congress should consult with CIGIE. Congress should also require IGs to make all audits and more of their investigative reports accessible to the public, especially when those investigations confirm allegations of misconduct by senior agency officials.
- Improve the process for investigating IGs. Congress should clarify the process by which CIGIE’s Integrity Committee investigates allegations of misconduct by senior IG officials. The Integrity Committee should be required to make explicit recommendations at the end of an investigation, to be more transparent about its processes and findings, and to notify Congress when an investigation into alleged IG misconduct takes longer than six months to complete. In addition, the FBI’s designee to the IG Council should not chair the Integrity Committee; instead that FBI official should be an advisor to the Committee. The Chair of the Committee should be an Inspector General with experience in investigating sensitive matters.
- Create one consolidated IG office for smaller executive agencies. A number of executive branch agencies don’t have dedicated Inspectors General. The resources it would take to stand up OIGs for many of these agencies would not yield a significant return on the investment. However, creating one IG office to independently handle investigations for all of the smaller agencies would allow for the same quality of oversight without wasting resources. It will also allow the office to develop expertise in key areas without having to take on too broad of a mission.
- Increase IG involvement in the improper payment process. Congress should encourage IGs to become more involved in the recovery and prevention of improper payments. Improper payments are growing every year despite new laws by Congress to address this issue, with 16 agencies failing to comply with improper payment laws in 2016. One resource Congress has yet to effectively employ in this fight are IGs and their investigative, auditing, and oversight skills. Although IGs currently conduct compliance audits to check to see if agencies are following the law, for the most part they don’t provide any further analysis of an agency’s improper-payments problems or make recommendations on how to solve them. IG’s could be useful in curbing improper payments if Congress required them to do more. Congress should require IGs to conduct in-depth investigations to identify the root cause of an agency’s improper payments. Better information-sharing between agencies and IGs would facilitate the identification of root causes of improper payments. Congress recently attempted to address this issue with the passage of the IG Empowerment Act of 2016; in order to ensure the remedy is effective, Congress should continue its oversight of this issue.
5. Increasing Transparency of Outside Influence on the Government
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.
- Let the public see where employees go after they leave federal agencies. Congress should require former agency employees to enter into a binding revolving door exit plan that sets forth the programs and projects from which they are banned from working. Moreover, any individuals contacting the agency they used to work for should be required to disclose their previous title and responsibilities. Agencies should post all exit plans and disclosure statements online shortly after receiving them.
- Expand lobbying disclosure requirements. Congress should require all individuals outside the government, not just agency alumni, to file a disclosure statement whenever they communicate with or appear before an agency official to discuss agency business including regulations or rules, policymaking, federal funds, examinations, and enforcement actions. Congress should require them to identify their employer or client and with whom they met, and to explain the communication in detail.
- Extend the cooling off periods for employees who enter and leave government. Congress should require employees who leave federal agencies to wait at least five years before contacting their former agency on behalf of anyone to discuss agency business, including regulations or rules, policymaking, federal funds, examinations, and enforcement matters. In addition, Congress should require employees who leave federal agencies to wait at least two years before taking a job with any firm they had contact with on agency business within a year prior to their departure.
6. Bringing Increased Transparency and Oversight to the Executive Branch
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.
- Explicitly state that agencies cannot withhold final reports, memos, or interpretations of laws under FOIA exemptions. The OLC and other Offices of General Counsel create secret law when they internally distribute an interpretation of a statute but refuse to share this interpretation externally. Executive agencies should be required to release these legal memos to allow the American public to know how these agencies interpret and enforce the laws of our land.
- Require an agency to show specific identifiable harm before being able to withhold discretionary documents. Last Congress’s FOIA bill requires agencies to release discretionary documents unless there is a foreseeable harm in its release. This language is a first step, but the vague standard is one that leaves room for agency misuse. Congress should require an agency to show what the specific identifiable harm would be. This is not a burdensome requirement, as the agencies must be identifying this harm internally already before denying release of a document.
- Fix a loophole that allows agencies to treat requests for information from Members of Congress as FOIA requests. Under current interpretation of the statute, Members of Congress can be denied information under FOIA if they are not asking for that information in the capacity of a committee or subcommittee Chair. Congress should revise the statute to clarify that no Member of Congress can be denied information regardless of applicable FOIA exemptions.
- Make agency Federal Employee Viewpoint Survey results public. Congress should require OPM to proactively post agency survey results in a timely manner, along with the broader results it currently posts.
7. Stopping Overlooked and Significantly Wasteful Spending
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.
- Pause production of the F-35 Joint Strike Fighter until Initial Operational Test and Evaluation is complete. With an anticipated lifetime cost of $1.4 trillion, the F-35 Joint Strike Fighter program is the most expensive weapons system in DoD history. Taxpayers are already on the hook for 346 aircraft before testing to determine if it works in combat, called initial operational test and evaluation (IOT&E). That testing has not even started, and likely won’t be complete until 2021. The easier developmental testing to date has revealed significant design problems that limit the F-35’s combat effectiveness, yet efforts to slow and reform the program have been insufficient to address the significant risks to taxpayers that those design problems pose. The DoD already has more than enough planes to complete testing; Congress should not fund additional purchases until that testing is complete and they can make an informed decision about the cost and future of the F-35 program.
- Cancel the Mixed Oxide Fuel Fabrication Facility (MOX) project. MOX was designed to convert nuclear weapons-grade plutonium into fuel for US commercial nuclear reactors as part of a diplomatic deal with Russia. But the cost of finishing construction alone has gone from $1.6 billion to $17 billion, the project is 41 years behind schedule, and it doesn’t have even a single potential customer for the nuclear fuel. Furthermore, last year Russia withdrew from the deal on which the project was based. Despite years of poor management by the contractor in charge, and even an attempt by the Department of Energy to cancel the project in 2016, the MOX facility still receives hundreds of millions of taxpayer dollars every year. The $340 million allocated to the project in FY 2016 is enough to keep the lights on but not to significantly move the project forward. Congress should not allocate any more funding for this wasteful project.
- Consider the use of existing facilities in the nuclear complex as an alternative to the Uranium Processing Facility (UPF). The UPF is another nuclear facility plagued by cost increases and delays. The building, to be constructed at Y-12 National Security Complex, was originally expected to cost $1 billion at the most, but current projections place it between $6.5 billion and $19 billion. These cost overruns, as well as delays and a $500 million design mistake, prompted the Energy Department to bring in a “Red Team” of experts to evaluate the project. The Red Team recommended utilizing existing facilities at Y-12 as an alternative option to the “big box” UPF, as POGO had recommended in 2013. In addition, POGO has found that there are buildings at other facilities in the nuclear complex, such as the Pantex site in Texas, that also have the capability of performing some of the uranium missions planned for the UPF. Congress should require the Energy Department to report on the feasibility of using these existing facilities as an alternative to this billion-dollar boondoggle.
- Pause the Littoral Combat Ship program. What was once designed to be a light, fast, and cheap surface combat ship has become an expensive, heavily manned “frigate” that cannot survive combat. In response to the mounting storm of criticism, then-Secretary of Defense Ashton Carter announced that the original buy of 55 LCSs, already cut to 52, would be cut to 32 ships plus an additional 8 “frigate” versions of the original LCS. The Navy prefers to go even further by cutting the LCS buy to 28 ships plus 12 “frigate” LCSs—and is requesting approval of a 12 ship block buy to lock in the program’s production commitment with a concomitantly large increase in concurrency. If Congress agrees with the Navy that 28 LCSs is enough, they should end production and fully fund an operational test that is as realistic as possible in order to uncover and fix the ship’s many remaining deficiencies. The new Secretary and Congress should apply out-year LCS budget savings to purchasing effective minesweepers that are far more urgently needed.
- Increase oversight of United States missile defense system acquisition. The Ballistic Missile Defense System is designed to defend the United States against nuclear missile attacks from countries like Iran and North Korea. This system is partially comprised of a Ground-based Midcourse Defense network of sensors and interceptors. The project was exempted from standard Department of Defense oversight and accountability processes from the very beginning. Fifteen years and $40 billion later, several of the interceptors have been fielded without ever being tested. Moreover, those that have been tested failed two-thirds of the time, even under simplified, scripted conditions. The last successful test was in 2008, and the most recent, conducted in January 2016, failed. The Government Accountability Office recently noted that the Defense Department has not been able to demonstrate that the system will actually be able to appropriately defend the United States against an attack. The Defense Department is currently in the midst of expanding the missile defense system by adding 44 new interceptors, but testing and development continues to overlap. The Ballistic Missile Defense System should be brought under standard Defense Department acquisition and oversight processes required for all other major military systems.
- Keep the Columbia-class submarine in the Navy’s budget. For several years the Congressional Budget Office (CBO) has found that the Columbia-class submarine replacement program (SSBN(X)) is likely to break the Navy’s shipbuilding budget if the Navy doesn’t keep costs down. Rather than exercising discipline over the program, the Navy has argued that the SSBN(X) should be treated as “national strategic asset,” and kept separate from the shipbuilding budget. But this same logic could be applied to every program in the military services’ budgets. Allowing the Navy to fund this program separately reduces discipline in the program and increases the likelihood of gross cost overruns in what the CBO expects to be a $100 – $104 billion program. Moreover, it creates a dangerous precedent for the military services to move other expensive programs like long range bombers and aircraft carriers out of their budget.
- Make the price of the B-21 bomber contract public. The Air Force has promised to deliver an effective and affordable bomber. The price estimate released by the Air Force for the program has already gone from $33.1 billion to $58.4 billion—an increase of $25 billion, or 76 percent. The Air Force has refused to release the price of the B-21 stealth bomber contract, claiming it could provide clues to a clever enemy about the bomber’s weight and range, even though the Air Force has already released drawings of the new bomber and a list of top-tier suppliers for the program. Publicly releasing the actual contact price is key to oversight of this program and of the rest of our planned nuclear modernization, which is currently projected to cost taxpayers $1 trillion.
- Cut excess general-officer positions that make our military top-heavy. Star creep—the creation of a top-heavy military with a historically large proportion of generals and admirals—hurts morale, combat effectiveness, and the budget. The US military is the most top-heavy in the world, with the ratio of officers to enlisted personnel more than doubling since World War II. While there have been some reductions in recent years as a consequence of reforms initiated by then-Defense Secretary Robert Gates, cuts to the officer corps have not kept pace with cuts to enlisted ranks. A radical culling of politically appointed civilians, headquarters, three- and four-star generals, and their associated staff and infrastructure would both save real money and greatly improve the efficiency, performance, and morale of those committed to defending the nation. Congress should require the Department of Defense to fully implement the recommended cuts and prevent efforts by the Pentagon to increase top-ranking positions while reducing the enlisted force.
- Reduce excess national security infrastructure. Inspectors General for both the Department of Defense and the Department of Energy have identified excess infrastructure beyond what is necessary to efficiently and effectively support our national security. Previous efforts to close excess military bases have saved taxpayers $13.6 billion per year. Authorizing another Base Realignment and Closure (BRAC) process could save an additional $2 billion annually. Savings could be even greater if Congress heeded the advice of the Department of Energy’s Inspector General to include the nuclear weapons complex and consolidation of materials. Removing dangerous nuclear material from just one of the Energy Department’s National Laboratories—Lawrence Livermore—saved taxpayers approximately $40 million per year.
8. Tackling Military Acquisition Reform
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.
- Emphasize role of testing and evaluation. The Pentagon should not allow weapons systems to ramp up production until intended technologies have been proven through comprehensive developmental testing and the completion of rigorously realistic independent operational test and evaluation. Congress should confer with GAO, the Director of Operational Test and Evaluation, and developmental test organizations to prevent overlap—referred to as concurrency—between operational testing and production. When too much concurrency is present, Congress should withhold funding of programs until they are restructured with little or no concurrency. The Pentagon should successfully complete competitive and realistic prototype testing and independent Analyses of Alternatives (AoA), and Congress and GAO should prohibit any waivers to competitive prototyping, with rare exceptions and exhaustive precautions to prevent the current systemic abuse of waiver authority. Congress should also provide more robust staff and resources for the Director of Operational Test and Evaluation.
- Competitive fly before you buy. Real competition improves performance and saves taxpayer dollars. Artificial fly-offs, schedule-driven testing, and political engineering of large programs like the F-35 and Littoral Combat Ship programs has resulted in costly technical difficulties and development delays that could have been avoided if realistic prototype testing and evaluation had been completed before committing to production. Congress should require all Major Defense Acquisition Programs (MDAPs) to go through a real fly-off competition, testing prototypes before making a production decision. Congress should also establish adequately funded and maintained operational units (e.g., aircraft squadrons and ground force brigades/battalions) independent of R&D organizations to conduct tests and experiments.
- Hold DoD accountable for weapon program outcomes. Often DoD fails to follow its own rules for buying MDAPs. Congress should hold the Pentagon accountable by regularly investigating and holding hearings on major weapon programs, and especially on the use of any waivers from procurement requirements. Legislation should require DoD to gain Congressional approval for waivers from any testing, acquisition, or production requirements. Congress should also request a GAO analysis of the consequences of any such waivers before granting approval. All waivers should be made public.
- Make DoD financially accountable. The Department of Defense is the largest federal agency, yet it remains the only major agency that has never passed a financial audit, as required by the Constitution. Auditing the Pentagon could help identify billions in savings. Congress should press DoD to become auditable, and require DoD’s various audit agencies, with assistance from private firms and the GAO as necessary, to conduct routine comprehensive audits of all 80 DoD MDAPs. Audits of government contracts would also significantly strengthen the DoD’s ability to identify and recover money lost to fraud and overpayments. Congress should impose budgetary penalties for DoD components and programs that cannot be fully audited, and career penalties for managers who preside over unaccountable programs and agencies. The current modus operandi, in which DoD largely relies on contractors to determine proper payments and whether costs are reasonable, has existed for decades and is unacceptable. Congress should also consider reviving the Renegotiation Board created during World War II to recoup excess profits from the defense industry and to recoup fees for weapons systems developed with taxpayer funds that are subsequently sold to foreign governments.
9. Ensuring Taxpayers get a Fair Return on Publicly Owned Natural Resources
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.
- Reform oil, gas, and coal revenue collection. The federal government’s management of oil, gas, and coal leases is vulnerable to lost revenues, according to reports by the GAO and Interior Inspector General, which warned that the federal government may not be receiving fair market value for sale of its natural resources. Congress should ensure that Interior reforms the royalty structure and, specifically, that it continues the comprehensive review of the federal coal program the agency promised to undertake at the beginning of 2016. The current system cheats taxpayers out of potential revenues that could go to the Treasury, state governments, and various environmental funds.
- Institute fees and royalties on hard rock mining. Under the Mining Law of 1872, which was meant to promote development of the American west, companies that extract hard rock minerals from public lands do not have to pay any royalties to the federal government. Additionally, the cost to rent these public lands is only $1 per acre per year. This means that there’s a lot of money being left on the table, and taxpayers are missing out on millions of dollars in potential revenue each year. Congress should explore options to institute royalties on hard rock mining, as well as set up a hard rock mining reclamation fee—similar to fees that the coal mining industry pays—to provide the federal, state, and tribal governments with funds to clean up hazardous mining sites.
10. Increasing Ethics Oversight of the Executive Branch
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.
- Empower the Office of Government Ethics to enforce its corrective and disciplinary action recommendations. For OGE to be effective, it must have independent authority to issue binding recommendations when there is an ethics violation. This authority could closely mirror that of the Office of Special Counsel, which can file a complaint containing a recommendation for a disciplinary action with the Merit Systems Protection Board. The employee is then afforded due process in front of the Board, and OSC’s disciplinary recommendation is enforced. We suggest OGE’s disciplinary recommendations be afforded the same enforcement power by the MSPB.
- Require proactive posting of ethics waivers signed for executive branch employees. This would increase transparency and reduce delay in receiving these records currently faced when using the Freedom of Information Act to obtain them. The proactive release of these waivers is in the public interest and does not pose an encroachment on privacy or other concerns.
- Codify appointee ethics pledges. Congress should codify the best practices from the most recent ethics executive orders implemented by Presidents Trump and Obama. Both orders had strong provisions banning gifts and prohibiting certain conflicts for appointees entering or leaving the government. Codifying those orders would add continuity between administrations and prevent special interests from steering White House and agency policies, programs, and spending.
- Enhance disclosures by the Office of Government Ethics. OGE should publicly post final submissions of ethics paperwork for executive branch officials occupying positions where the pay is set at Levels 1 or 2 of the Executive Schedule. Final submissions should include signed ethics pledges pursuant to Executive Order 13770, ethics pledge waivers pursuant to Executive Order 13770, waivers under 18 U.S.C. § 208, authorizations under 5 CFR § 2635.502, waivers under 5 CFR § 2635.503, Certificates of Divesture and requests for Certificates of Divestiture, financial disclosure reports, ethics training records, authorizations to accept gifts of free attendance at widely attended gatherings, STOCK Act notices of employment negotiations (limited to employment for which the government employee was hired), disciplinary actions and reprimands related to ethics violations, and any documents demonstrating compliance with ethics agreements.
- Enhance OGE independence. Congress should enable OGE to work independently and to insulate the office from political pressure by amending the law to specify that a President can only remove the director for cause before his or her five-year term is over. Directors of similar independent agencies, such as the Office of Special Counsel, enjoy this type of protection. The OSC’s authorizing law states that “the Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.”
11. Modernizing Congressional Rules
ecessary 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.
- Increase staffing of intelligence committees. All Members of Congress should be allowed at least one staff member who has clearance at the Top Secret/Sensitive Compartmented Information (TS/SCI) level. That staffer can then attend briefings as a representative of the Member and provide counsel to him or her, as another staffer would do in any unclassified hearing or meeting. Without providing this kind of staff to every Member, Congress is greatly limiting what its Members can do on intelligence oversight.
- Create Chamber-specific whistleblower ombudsman offices. Federal employees and contractors who blow the whistle are almost always have the right to speak to a Member of Congress. However, when the information they are blowing the whistle on is classified there are a few limits to this right. Both Chambers of Congress should create a Whistleblower Ombudsman Office to provide training for Congressional staff on how to work with whistleblowers to make sure they handle classified and unclassified disclosures within the bounds of the law. This training should be mandatory.
- Require disclosure of outside compensation in the House of Representatives. The House Rules Committee should introduce language into the Code of Official Conduct that would require Representatives to report when their office employs an individual who is compensated by any source other than the United States Government. Such a report should include the identity of the source of the compensation and the amount or rate of compensation.
- Create meaningful oversight of outside compensation in the Senate. Senate reporting of Fellows who are paid by corporations, foundations, universities, nonprofits, and other outside private entities is falling short. The Senate Ethics Committee should increase its oversight of the Congressional Fellows reporting requirements, actively checking with Member offices to make sure their records accurately reflect their use of Fellows. The Senate Ethics Committee should also increase training for Member offices at the start of each Congress on what they are required to report.
12. Decreasing the FDA's Reliance on Industry
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.
- Eliminate requirement for FDA to negotiate user fees with regulated industries. A short term solution would be to eliminate the legislative requirement that the FDA negotiate with “the regulated industry” in advance of user fee reauthorization.
- Increase transparency of negotiation and consultation meetings. Until the FDA is no longer required to negotiate with the industry it regulates, Congress should require much more transparency in the user fee reauthorization process. The FDA’s negotiating sessions with industry and its consultation meetings with other stakeholders, including patient and consumer groups, should be open to the public. Consumer groups that do not receive funding from the pharmaceutical or biotech industries should be included in these meetings. Congress should also require online posting of live webcasts, permanent video recordings, and transcripts of those meetings.
- End reliance on user fees. Congress should not reauthorize the Prescription Drug User Fee Act (PDUFA). Instead, it should use federal appropriations to fund all of the FDA’s work on prescription drugs.
13. Reforming the Administration of the VA and its Treatment of Veterans
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.
- Oversee and limit the creation of the Veterans Affairs Central Whistleblower Office. Given the problems that the VA Inspector General’s office had in handling whistleblower retaliation cases, a new office may seem necessary. However, it also may just put a new name onto the same old problem—a lack of independence and objectivity in the office meant to protect whistleblowers within the VA. Congress should restructure the office created by the Military Construction and Veterans Affairs Appropriations Bill of 2017 and make the office a pilot program. Congress will then be able to evaluate whether it is properly working to protect whistleblowers within the VA, and more easily adjust the program if it is not. Congress should also apply more comprehensive reporting requirements to the office. Currently, the office is required to report the number of complaints received and the manner in which they were disposed. The office should also be required to report to Congress recommendations for legislation or administrative actions to improve functioning of the office within the agency.