Chair McCollum, Ranking Member Calvert, and members of the House Defense Appropriations Subcommittee, thank you for the opportunity to submit testimony on behalf of the Project On Government Oversight (POGO) concerning the public access to ethics records of current and former Department of Defense (DOD) personnel.
Public oversight is crucial to the success of any government ethics program, but far too many of DOD’s ethics records are not reasonably available to the public. The subcommittee has an opportunity to make these records truly available to the public and strengthen government ethics. POGO recommends that the subcommittee give the public direct access to an existing database of DOD’s formal opinions on post-government employment restrictions. We also recommend releasing other ethics records pertaining to top political appointees in DOD and other agencies through a portal on the website of the Office of Government Ethics (OGE).
While federal law gives the public a right to access some ethics records, many records remain available only through Freedom of Information Act (FOIA) procedures. There is no guarantee that the Department of Defense will release an ethics record requested through the FOIA process, and few members of the public have the resources to challenge in court DOD’s improper denial of a FOIA request. The FOIA process is also notoriously slow. DOD had 22,412 pending FOIA requests at the end of fiscal year 2020, a 22% increase over the prior year.1 Rather than shrinking, that number grew another 9% by the end of fiscal year 2021 to a total of 24,385 pending requests.2 As of December 31, 2021, the tenth longest pending appeal of the denial of a FOIA request by the Office of the Secretary of Defense and Joint Staff had been pending since November 2010.3
DOD’s Database of Formal Post-Government Employment Opinions
POGO is concerned about DOD senior and procurement officials rotating through the revolving door to work for defense contractors. In November 2018, POGO released an investigative report revealing 645 instances, in roughly the first 10 months of 2018 alone, of the top 20 defense contractors hiring former senior government officials, military officers, Members of Congress, and senior legislative staff as lobbyists, board members, or senior executives.4 (Top contactors were identified based on the most recent year for which DOD had released data, fiscal year 2016.) These instances included work performed for defense contractors by 25 former generals, nine former admirals, 43 former lieutenant generals, and 23 former vice admirals.
Our report was consistent with findings the Government Accountability Office (GAO) had released ten years earlier in 2008. GAO had found that, as of 2006, 52 defense contractors were employing 2,435 former DOD officials who had served in senior or acquisition positions.5 The total number was likely higher because GAO limited its review to contractors who had earned over $500 million in 2005. One statement in the report stands out: “GAO estimates that at least 422 former DOD officials could have worked on defense contracts related to their former agencies and that at least nine could have worked on the same contracts for which they had oversight responsibilities or decision-making authorities while at DOD.”6 These types of professional moves leave the public wondering if post-government career opportunities tempt DOD officials into giving certain contractors preferential treatment.
Congress took a positive step toward addressing concerns about the revolving door in 2008 when it established a requirement that, before accepting compensation from a defense contractor, certain current and former senior defense officials must obtain written ethics opinions regarding the applicability of post-employment restrictions to activities they may undertake for the contractor.7 Congress also required DOD to establish a centralized database of these opinions and to make them available to the inspector general for periodic reviews. Unfortunately, the law does not make this database accessible to the public.
“With so much taxpayer money at stake, the public has a need to monitor the risk of former officials exercising improper influence on defense contracting processes.”
The public has a strong interest in seeing the formal ethics opinions in DOD’s database. These opinions are the first line of defense against intentional or inadvertent misconduct by covered former DOD officials. Last fall, GAO determined that, in 2019, 14 defense contractors employed 37,032 former DOD officials who had left government in the prior five years. Yet the public has no way of assessing the accuracy or completeness of the formal opinions that DOD issued to any of these former officials who were required to obtain opinions.8
The stakes are high. DOD paid nearly half a trillion dollars to defense contractors in 2020.9 With so much taxpayer money at stake, the public has a need to monitor the risk of former officials exercising improper influence on defense contracting processes. Corruption of those processes could affect more than our money: It could compromise national security.
For these reasons, POGO respectfully requests that the subcommittee take this opportunity to strengthen government ethics by requiring DOD to make its post-government employment database available to the public. A new public release provision could contain an exception authorizing DOD to redact any classified information.
Other Government Ethics Records of Top DOD Appointees
Laws requiring the government to make other ethics records available to the public have failed to achieve the intended transparency. Some of the difficulties stem from the laws themselves, while others stem from government practices that thwart public access.
The Ethics in Government Act, for example, promises the public access to financial disclosure reports of top officials in DOD and other agencies.10 The government form for requesting these reports provides spaces for the requestor to indicate the name of any official whose report is sought.11 But last year, when I sought public disclosures of executive-level political appointees in DOD, I did not know their names. To overcome this hurdle, I filed a FOIA request for, among other things, the names of appointees to DOD’s noncareer Senior Executive Service posts. The Pentagon’s FOIA office withheld the names of these officials whose financial disclosure reports bear their names and are, by law, publicly available. I filed a FOIA appeal emphasizing the absurdity of the situation on September 3, 2021. I have received no decision.
“The Pentagon’s FOIA office withheld the names of officials whose financial disclosure reports bear their names and are, by law, publicly available.”
Requesters encounter similar problems with waivers of the primary conflict-of-interest law, 18 U.S.C. § 208. The law provides a process for accessing these waivers that is often much faster than the FOIA process.12 But the public has no way of knowing when any of the executive branch’s 2.1 million employees has received a conflict-of-interest waiver. When I filed a request for all waivers issued to the State Department’s political appointees in 2021, that agency’s ethics office responded on February 23, 2022, that it would not release any waiver unless I identified the name of the recipient. Other agencies, including DOD, have not insisted that requesters provide the names of wavier recipients; however, the public remains at the mercy of ethics officials with differing interpretations of the law. A member of the public cannot be expected to file new requests each day to fish for possible waivers the government may have issued.
These are just two of the many types of ethics records that, as a practical matter, remain largely unavailable to the public, despite a congressional intent to make them publicly available. A government ethics program that operates in darkness is not what the nation deserves. When I served at OGE, first as a career ethics official and then as the agency’s director, I and others sought to expand the range of ethics records available to the public on OGE’s website. We were, of course, limited by the willingness of past administrations to support increased transparency. The same is true of OGE’s current director, who lacks the statutory authority to communicate directly with Congress that lawmakers have granted the heads of two sister agencies, the Merit Systems Protection Board and the Office of Special Counsel.13
POGO respectfully requests that the subcommittee take this opportunity to fulfill the objective of laws that are intended to give the public access to ethics records of top DOD political appointees. The subcommittee could achieve this aim by requiring OGE to create — and maintain on its website — a centralized, publicly available database of specified ethics records. If the database included covered records of all noncareer appointees at the GS-15 level or above in the executive branch, the database would ensure the public’s access to records of top DOD appointees.
“A government ethics program that operates in darkness is not what the nation deserves.”
For some types of ethics records, Congress has required the public to file written requests; however, the need to file a request would not pose an obstacle to creating this suggested database. OGE has already developed a portal on its website to accept record requests.14 The portal provides access to public financial disclosures, ethics agreements, ethics agreement certification forms, and certificates of divestiture. OGE lists records on its website as they become available, so the public can request them by completing an online form. If Congress required OGE to release conflict-of-interest waivers through the portal, for example, the public would no longer have to wonder which top defense officials have received waivers. The existence of the waiver would become apparent when OGE listed the waiver on its website.
Attached is a list of records that POGO recommends be included in the database. The database would exclude records containing informal ethics advice or classified information.
More transparency is needed for DOD’s ethics records, especially in the case of officials and former officials who go to work for defense contractors. Only through increased transparency can Congress ensure accountability for individuals who wield influence that could skew defense procurements, potentially wasting taxpayer money and jeopardizing national security. POGO urges the subcommittee to take this opportunity to provide the needed transparency and strengthen government ethics. Thank you again for the opportunity to submit this testimony.