Floor Statement of U.S. Senator Chuck Grassley on Congressional Oversight, Transparency of Government
There’s finally some sunshine on the Capitol dome today, and it’s a welcome change after all the snow and rain here lately. So, it’s appropriate that this is Sunshine Week, but that’s not a reference to the weather. Sunshine Week is a nonpartisan open-government initiative led by the American Society of News Editors. It’s a good time to talk about congressional oversight and the need for Congress to keep a watchful eye on the Executive Branch.
In his Inaugural Address, President Obama promised to bring more Sunshine to the Federal Government: “Those of us who manage the public's dollars will be held to account, to spend wisely, reform bad habits, and do our business in the light of day, because only then can we restore the vital trust between a people and their government.” I couldn’t agree more with the President on this. The government should do its business in the light of day. Unfortunately, in my work I have noticed no improvement in the openness of the federal government.
One vital step that the President could have taken to ensure greater transparency would be to order agencies to be more forthcoming in responding to requests from Congress. He could have instructed them to review and revise some of the secretive policies that have developed over the years. These policies are not required by law and simply serve to frustrate the ability of Congress to gather the information it needs in order to act as a check on the power of the Executive Branch. However, the President has apparently not taken that step, because the agencies have been as aggressive as ever in withholding information from Congress.
I have actively conducted oversight of the Executive Branch regardless of who controls the Congress or the White House. It is our Constitutional duty as legislators. These issues are typically about basic good government and accountability—not party politics or ideology. The resistance is often fierce. Protecting itself is what the bureaucracy does best, and it works overtime to keep embarrassing facts from Congressional and public scrutiny. When the agencies I am reviewing get defensive and refuse to respond to my requests, it makes me wonder what they’re hiding. They act like the documents in government files belong to them. These unelected officials seem to think that they alone have the right to decide who gets access to information collected at taxpayer expense. Well, I have news for them. Documents in government files belong to the people and the elected representatives of the people have a rightto see them. That right is essential to carry out our oversight function under the Constitution.
I had hoped that President Obama’s commitment to a more open government would mean major changes that would enable more effective Congressional oversight. As he said in his Inauguration Address, those who manage public dollars ought to be held to account and do business in the light of day. But, actions speak louder than words. Given my experience in trying to pry information out of the Executive Branch, I’m disappointed to report that the principles that the President articulated so well are not being put into practice. The administration seems to act as if government officials ought to be held to account and do business in the light of day except when they don’t want to. And there are too many exceptions to count.
I’ll just list a few. Let’s contrast the President’s words with the agencies’ actions. The President’s words say: “Government should do business in the light of day.” The agency’s actions say: “…except when it comes to improper payments in Medicare.” As part of our oversight function, Congress reviews annual reports that the Administration is required to produce. One of these reports is on improper Medicare payments, which was due last November. Congress is still waiting to see the numbers for improper payments made to specific types of health care providers and for specific services. Improper payment rates vary widely among different types of providers and services so this information would help us to determine where to focus our efforts. We have not received such breakdowns of improper payments since 2007. We need these numbers to evaluate how the federal government is addressing fraud, waste and abuse and to inform our discussions on legislation about health care financing.
His words say: “Government should do business in the light of day.” Their actions say: “...except when it comes to potential Medicaid fraud.” Overutilization of health services and healthcare fraud play a significant role in the rising cost of our healthcare system. I wrote to the Department of Health and Human Services and the Centers for Medicare and Medicaid Services 3 months ago about what they’re doing about overutilization of health care services. I also asked about a specific Medicaid prescriber in south Florida who wrote over 96,000 prescriptions for mental health drugs -- nearly twice the number written by the second highest prescriber. And I’m still waiting for a response.
His words say: “Government should do business in the light of day.” Their actions say: “...except when it comes to protecting the privacy of an Al Qaeda terrorist.” In preparation for a hearing on the Christmas day bombing attempt, my Republican colleagues and I on the Judiciary Committee requested a copy of the bomber’s visa application. We wanted to learn more about why he was given permission to enter the U.S. in the first place and why his visa wasn’t revoked after his father warned U.S. officials that he might be planning something. The State Department first tried to withhold the document on the grounds that it might be evidence in the criminal proceeding. But, after the Justice Department said that was not an issue, the State Department changed its position and claimed that a provision of immigration law required them to protect the Al Qaeda terrorist’s privacy by withholding documents about how he was given permission to enter the country.
His words say: “Government should do business in the light of day.” Their actions say: “...except when it comes to information about how Treasury officials allowed AIG Executives to make-off with millions in taxpayer dollars.” Since last December, I’ve exchanged a series of letters with Treasury Secretary Geithner and his staff. I have some detailed questions about exactly which executives received which kind of payments under which contracts and why the Treasury Department didn’t do more to stop those payments. I even addressed the issue directly with Secretary Geithner at a Finance Committee hearing. He promised I would get the information I was seeking. Yet Treasury Department lawyers are still withholding the documents on the grounds that they have to protect the privacy of AIG executives. They are also refusing to answer questions about why Treasury regulators allowed AIG to make large severance payments, even though the statute provided the authority to stop them.
His words say: “Government should do business in the light of day.” Their actions say: “...except when it comes allegations of misconduct in the Department of Justice.” When Attorney General Eric Holder and I met during his confirmation process, I provided him with a binder full of unanswered letters I had written regarding FBI and Justice Department oversight issues. Despite promises of renewed efforts to accommodate my information requests, the Department has not altered its policies of withholding documents related to personnel matters and any other matter that might be the subject of some internal review at the Justice Department.
For years I have been seeking internal Justice Department emails related to the FBI’s use of socalled “exigent letters” to gather the telephone records of Americans without a subpoena and
even when there is no legitimate emergency. At first, the excuse was that Congress had to wait
for the Inspector General to finish his review. But that review is complete, at long last, and yet
the documents that were supposed to be provided are still being withheld.
Congress is not the only one that the Executive Branch is withholding information from. I asked the Government Accountability Office (GAO) in September about its difficulties in obtaining access to records and other information from the federal agencies over the last year. As the investigative arm of Congress, GAO investigates how the federal government spends taxpayer dollars. And in order to do that work, GAO requires access to agency documents. The GAO told me that it generally receives good cooperation but it has, and continues to have, access issues at certain agencies, such as the Department of Homeland Security. According to the GAO, Homeland Security “has posed continual access challenges for GAO since the Department began operations in 2003.” The GAO also indicated that the access to information at the Justice Department and the FBI is particularly problematic. Despite a bipartisan request from both the House and Senate Judiciary Committees to audit the FBI’s human capital management of its counterterrorism division, the GAO has been stonewalled by the Justice Department with new and unprecedented claims that the FBI’s intelligence-related functions are off-limits for GAO review.
The public has also been stonewalled when making requests for records under the Freedom of Information Act (FOIA). When he first took office, President Obama issued a memo on the Freedom of Information Act (FOIA) to the heads of the executive agencies. In that memo, the President stated: “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears” and he instructed the executive agencies to “adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.” The President may have issued a pledge of open and transparent government, but this week, the National Security Archive released the findings of its FOIA audit and found that the Administration “has not conquered the challenge of communicating and enforcing that message throughout the Executive Branch.” In particular, the organization found that requests as old as 18 years still exist in the FOIA system. The organization also found that five agencies appear to be releasing less and withholding more information since the Executive Order has been in place.
The White House has said it is committed to a more open, transparent government. In his memo to the heads of the executive agencies, the President said that “openness will strengthen our democracy and promote efficiency and effectiveness in Government” and that “transparency promotes accountability.” But, that message has clearly not gotten through.
It’s our job in Congress to help ensure that agencies are more transparent and responsive
to the people we represent. We’re not doing our job if we don’t hold the agencies accountable
and ensure that executive policies reflect the interests of our constituents. I will continue doing
what I can to hold their feet to the fire. It would be helpful if the President would use his
authority to require agencies to change their actions to be consistent with his words.
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