Tag Archives: House of Representatives

Enhancing Oversight Access To Classified Information

Standard

THE PROJECT ON GOVERNMENT OVER SIGHT (POGO)

The number of House employees with top secret clearances is not publicly available, but it is likely only several hundred. By comparison, approximately 1.2 million executive branch employees and contractors hold top secret clearances.

It’s likely that more than 100,000 executive branch employees and contractors hold TS/SCI clearances, not counting foreign officials who are “in access.

____________________________________________________________________________

“Testimony of Mandy Smithberger, Director of the Center for Defense Information at the Project On Government Oversight (POGO), before the House Appropriations Committee, Legislative Branch Subcommittee.

Thank you Chairman Ryan, Ranking Member Herrera Beutler, and Members of the Committee for allowing me to provide testimony on behalf of the Project On Government Oversight (POGO) and Demand Progress on strengthening Congress’s capacity to oversee the executive branch. We represent nonprofit organizations focused on strengthening the legislative branch’s ability to legislate and conduct oversight. We respectfully request that your committee provide personal office staff of members on key committees with the clearances they need to properly support Members of Congress in their review of information the executive branch has deemed classified, and to report on the provision of those clearances. Accordingly, our request implicates the operations of the House Sergeant at Arms.

First, we thank you for being stalwart defenders of Congress’s constitutional duty to conduct oversight. We especially appreciate that last year the committee requested that the Sergeant at Arms produce an unclassified report on the average and median length of time for House staff to obtain a clearance.1 This report, which was due on March 1, will help the House identify whether staff are being granted clearances on an appropriate timeframe and in line with norms and practices for executive branch staff. This is an important first step.

We must modernize how Congress conducts oversight, and that must include responsibly expanding access to classified information.

We believe it is essential for key House staff to have access to Top Secret/Sensitive Compartmented Information (TS/SCI) to strengthen the House’s oversight of traditional national security matters such as the spending and operations of the military and the intelligence community, as well as emerging concerns such as election security and cyber threats. The House Permanent Select Committee on Intelligence, the House Appropriations Defense Subcommittee, and the House Armed Services Committee all play pivotal roles in overseeing our national security. While Members of Congress are entitled to access classified information by virtue of the constitutional offices they hold and do not need security clearances, they must largely rely on their personal office staff to sift through reams of information and brief them on issues. Those staff often do not hold sufficient clearances to access certain sensitive information, thereby undermining the support they can provide and weakening Congress’s ability to legislate or conduct effective oversight.

The need for Congress to improve its own access to this information becomes more apparent in light of the executive branch’s over-classification of information, and, in some cases, weaponization of the classification system to avoid any accountability.2 From 2007 to 2017, the amount of TS and TS/SCI information has more than tripled.3 Over-classification has become so cumbersome that even the vice chairman of the Joint Chiefs of Staff, General John Hyten, complained that it has become “unbelievably ridiculous.”4 Defense contractors are celebrating the “unprecedented” increase in classified spending,5 which naturally increases the risk of overspending and mismanagement.

In the Project On Government Oversight’s congressional oversight manual, former Representative Mickey Edwards (R-OK) challenged the executive branch’s assertion that it should control Congress’s access to information. “There is no authority in the executive branch to tell Congress who can or cannot have the information it seeks,” he said.6 While Congress codified some executive branch authority to limit access to sensitive information in the National Security Act of 1947, those provisions have, over time, been broadened to an unwarranted degree, and these limits must be challenged if Congress is to maintain its ability to conduct effective oversight.7

Years of executive overreach by Democratic and Republican administrations have severely diminished Congress’s power. Congress must reassert itself as a coequal branch fully able to perform its oversight duties.

The number of House employees with top secret clearances is not publicly available, but it is likely only several hundred. By comparison, approximately 1.2 million executive branch employees and contractors hold top secret clearances.8 It’s likely that more than 100,000 executive branch employees and contractors hold TS/SCI clearances, not counting foreign officials who are “in access.”9 Similarly, the legislative branch receives approximately 0.7% of the non-defense discretionary federal budget—approximately $5 billion—to oversee the entire federal government.10 By contrast, this year the intelligence community requested $85 billion, or more than 16 times all the money spent on the legislative branch.11 This significant disparity in both resources and people with access puts Congress in an inherently weak position when it comes to effectively conducting oversight.

Critics of this proposal have argued that rather than increasing congressional access to highly sensitive information, Congress should combat over-classification. It would be a mistake to force Congress to choose one over the other. “Secrecy, while necessary, can also harm oversight,” the 9/11 Commission warned in 2004.12 Over-classification is a serious problem because it impedes sharing information within the federal government and with state and local governments, placing the public at risk.13 Over-classification also undermines the legitimacy of this designation and threatens the protection of legitimate secrets.14 Excessive secrecy also spawns the related problem of uncoordinated, haphazard declassification, as the Commission on Protecting and Reducing Government Secrecy, commonly known as the Moynihan Commission, pointed out in 1997.15 While we support efforts to reduce the overall amount of classification,16 we still think that Congress must also work toward ensuring it has adequate access to controlled information. It is important for Congress to stand its ground in the face of the executive branch’s assertion that it has the sole authority to make classification decisions.17

It is important to remember that providing select House staff TS/SCI clearances will not necessarily give them unfettered access to classified information. A determination must still be made that they have a need to know. This need-to-know determination, made by the entity that holds the classified information, will ensure that information is available only to those who have an actual need for it. The granting of a TS/SCI clearance addresses an administrative hurdle—the determination that a person can be entrusted with this information—but it works hand-in-glove with the demonstration of a need to know and it would not improperly infringe on the executive branch’s classification powers.

The costs of implementing this reform are likely to be minimal. The Congressional Budget Office scored a similar amendment in the Senate as having “no budgetary impact.” The costs of clearances for congressional staff are borne by the agency granting the clearance, not Congress.18 We anticipate that there would be some funding needed for the legislative branch to maintain records of nondisclosure agreements, store classified documents, and track individuals granted clearance, and we urge the committee to increase funds for the Sergeant at Arms accordingly. Additionally, as most of the personal office staff of the relevant committees likely already have TS clearances, providing additional access should not be burdensome.

The cost of not implementing this reform, however, is significant. Without adequately credentialed staff, Congress cannot ensure that we have an executive branch that operates effectively and ethically to protect our country, and in compliance with its constitutional responsibilities. Former House Intelligence Committee Chair Mike Rogers (R-MI) and former House Intelligence Committee Ranking Member Jane Harman (D-CA) spoke last year about how adequate context and knowledge are necessary to precisely target questions to executive branch officials who are reluctant to provide Congress with information.19 While we believe every committee is under-resourced, this is an area where civil society cannot access the information to fill in the gaps. Too often, Congress is instead forced to rely on leaks to the press to learn when national security agencies waste money, violate citizens’ constitutional rights, or abuse their power.

Without adequately credentialed staff, Congress cannot ensure that we have an executive branch that operates effectively and ethically to protect our country, and in compliance with its constitutional responsibilities.

The House Intelligence Committee includes members who serve on the Foreign Affairs, Judiciary, Armed Services, and Appropriations committees.20 The purposes of this cross-seating are to ensure that those committees’ interests are respected and to provide a diversity of viewpoints and expertise while guarding sensitive information before the committee.21 But, without TS/SCI clearances, Congress is not getting the full benefit of this structure and is hampered in its ability to ensure that legislation serves the interests and priorities of the American people. Current members of the House Intelligence Committee are trying to remedy this by pushing for expanded TS/SCI access among their personal office staff.22

The Senate has recognized the need for enhanced access, and has provided designees with TS/SCI clearances for members of the Senate Select Committee on Intelligence. Consequently, the Senate has been able to engage in more robust oversight. Even so, senators are working to expand TS/SCI clearances to personal staff for nearly all senators, with an amendment offered to that effect as part of the fiscal year 2020 appropriations bill.23

To make sure that our most sensitive national security information is properly protected, we urge the committee to increase counterintelligence training for all congressional staff who receive security clearances to help prevent the occurrence of improper leaks. This training should be akin to that provided by intelligence agencies to their own personnel. In addition, the House should expand its reporting on the timeframe it takes to receive a clearance to include an accounting of the number of staff who hold clearances, and the level at which they hold it. This would put the House in line with executive branch practices.

In our experience, congressional staff take significant care to properly safeguard sensitive information, even documents that have pseudo-classifications like “For Official Use Only,” also known as Controlled Unclassified Information (CUI). If staff mishandle this information, they should be held to the same standards and subject to the same punishment as executive branch employees, including criminal prosecution.

We must modernize how Congress conducts oversight, and that must include responsibly expanding access to classified information. Years of executive overreach by Democratic and Republican administrations have severely diminished Congress’s power. Congress must reassert itself as a coequal branch fully able to perform its oversight duties.”

https://www.pogo.org/testimony/2020/03/enhancing-the-houses-oversight-over-classified-information/

Industry-Paid Fellowships Infiltrate Congress

Standard

corporate-secret-money_960

“POGO

“The U.S. Congress allows Members to staff their offices with Fellows who are paid by corporations, foundations, universities, non-profits, and other outside private entities.

Fellowship program far too often flies under the conflict of interest radar.


Recommendations:

Require disclosure 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 outside of the United States Government. Such a report should include the identity of the source of the compensation and the amount or rate of compensation.

More oversight in the Senate

Senate reporting of Fellows who are paid by corporations, foundations, universities, non-profits, and other outside private entities is falling short.  The Senate Ethics Committee needs to increase its oversight over the Congressional Fellows reporting requirements, actively checking with Member offices to make sure they don’t have any Fellows employed for years they don’t report any. The Senate Ethics Committee should also increase training for Member offices on what they are required to report, at the start of each Congress it should hold a series of trainings for all Member offices.

Both Chambers should require electronic filing of these disclosures, in a publically accessible format

The Senate, and House as it begins to require reporting on Fellows, should transition to an electronic filing system that can be accessed by the public. This will allow for more uniform participation by Member offices and more public oversight over the Congressional Fellowship programs.

In January 2001, Peter Winokur began working as a Fellow in Senator Harry Reid’s (D-NV) office. He would ultimately spend almost four years there, specializing in energy policy and eventually becoming the Senator’s Energy & Transportation Advisor. He wrote legislation, offered advice, wrote memos for the Senator, met with lobbyists and public interest groups, and attended meetings on press and policy strategy, according to reports on his work. He was, for all intents and purposes, a Senate staffer. There was one major distinction: his $120,000-per-year salary was paid by the IEEE-USA, an industry group that is an “organizational unit” of the Institute of Electrical and Electronics Engineers and whose stated goal is to “recommend policies and implement programs specifically intended to serve and benefit the members.”

Many of Winokur’s long hours in the Senate were spent working on the Energy Policy Act of 2002. It was a big bill, combining policy on energy efficiency, alternative energy sources, energy production, and even some amendments to state programs. “My basic workday is from 8:00 AM to 6:30 PM. Throw in 2 hours on the Metro where I read as much as I can, and it’s a 7:00 AM to 7:30 PM day. Then I get home to read my Sandia and IEEE e-mail,” he wrote on his time in the Senate.

Winokur felt he would fit in well at Senator Reid’s office because Reid was the Ranking Member of the Environment and Public Works Committee and the Energy and Water Appropriations Subcommittee. Winokur stated, “The Senator is committed to making renewable energy technologies a priority. And so am I.” And so is IEEE-USA. Their policy position statements on Energy and Environment from the time are not so different from some of the text of the Energy Policy Act of 2002 introduced in the Senate. Winokur’s Energy Department bio states, “As Energy and Transportation Advisor, crafted energy policy that included tax legislation for renewable energy, resulting in billions in economic development and the creation of tens of thousands of jobs.” This work for the Senate while being paid by industry gives the appearance of—and the incentive structure for—a conflict of interest.

Winokur had the kind of access most industry professionals can only dream about. He found that “people have a tendency to return phone calls from a Senate office, whether it’s the Attorney General of a state, the chief counsel of the FCC, or the COO of a California utility,” Winokur wrote in his report.

Regardless of whether there was an identifiable legislative outcome from Winokur’s position (the Energy Policy Act of 2002 never made it out of conference to become a law), it’s fairly easy to see how beneficial it could be for IEEE-USA, or any industry, to have someone on their payroll in a Congressional office, with the ear of a powerful Senator, every day. And the fellowship proved beneficial to Winokur as well. The Project On Government Oversight’s (POGO) review of this and hundreds of other similar fellowships found that most fellowship positions last only a year, and most fellows earned far less than permanent staffers. But Winokur was there for almost four, making $120,000 a year–which was close to the maximum amountSenate staff could be paid at the time.

This kind of arrangement, with fellows working in Congress but paid by an outside source, is legal, and more common than one might think. But are the Members of Congress and their staffs actually following the rules that are supposed to keep a check on conflicts of interest? And how often do fellowship programs end up furthering industry goals over Congressional priorities?

Fellowships Bring Congress and Industry Closer Together

The Fellows are required to abide by all the laws, rules, and standards governing permanent Congressional staff members. Indeed, they 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.

There are additional rules governing fellows. Congressional offices must make sure that fellows have no conflicts of interest and that the arrangement gives no undue advantage to special interest groups. “The participant may not work on issues related to the interest of the individual company or industry providing such funding. Conflicts of interest and the appearance of conflicts between the participant’s duties to the Senate and his or her responsibilities to the private sponsor must be avoided,” the Senate Ethics Manual states. It is the duty of the Senator to monitor the activities of the fellow to ensure that no potential conflict of interest arises during the course of their work. A similar statement can be found in the House Ethics Manual: “an intern or fellow should not be assigned duties that will result in any direct or indirect benefit to the sponsoring organization or anyone else with which the individual is affiliated (including the employer or fellow), other than broadening the individual’s knowledge.”

On the Senate side, the supervisor of the fellow is required by a Senate rule to report to the Ethics Committee “the identity of the source of the compensation received by such individual and the amount or rate of compensation paid by such source.” The House does not have a similar rule and does not require fellows or their supervisors to disclose their compensation details.

This program is often used for the educational benefit of these fellows and is generally intended to be a temporary placement before the fellows return to their organization. On the House side, “A Member or House office may accept the temporary services of an intern participating in a program … which is primarily of educational benefit to the participant. … Similarly, a Member or House office may accept the temporary services of a fellow participating in a mid-career education program … while the individual receives compensation from his or her employer,” the Ethics Manual states. Many of the organizations sponsoring these fellowships tout how valuable it is for their participants to learn about Congress and the legislative process while Congress benefits from knowledgeable experts. “The objective of the David A. Winston Health Policy Fellowship is to provide a unique opportunity to learn about the political system through direct exposure to public and private sector roles in health policy development,” one brochure states.

Congressional Fellows are in significant demand. They come to an office looking like a year’s worth of free work from some very competent people.

“Approximately 50% of Fellows begin or return to careers in academia following the Fellowship, with strengthened credentials in policy-relevant research and an ability to teach students about the complex issues involved in bridging science and policy,” the Society for Research in Child Development writes about their fellowship. For Congressional Members, it’s understandable why they would look for outside support. “While federal spending and the executive branch have ballooned, Congress has downsized its research and analytical support staff by about one-third over the past 40 years,” former Congressional Research Service analyst Kevin Kosar wrote for National Affairs. Another study by the Sunlight Foundation pointed to low pay and turnover as undermining Congress’s ability to attract and retain talented staff.

Or as one fellow put it, “Congressional Fellows are in significant demand. They come to an office looking like a year’s worth of free work from some very competent people.” These fellowships, funded by outside entities, offer the opportunity for access to experts these offices might not otherwise be able to afford.

Of course the intended purpose of these fellowship programs makes good sense and can be beneficial to all parties, but using these experts could pose a problem.

POGO reviewed 2,014 publicly available reports on Senate fellows and found several examples of the appearance of a conflict of interest, and that Senators did not consistently disclose fellows whose salary was paid by a third party. The House does not maintain records on Congressional Fellows at all.

On the Senate side, fellows and their supervisors are required to file reports detailing when they began their fellowship, how much money they’re making, what entity is paying their salary, and how many hours they’ve worked. Senate rules mandate that new fellows file their “Agreement to Comply with the Senate Code of Official Conduct,” known as form 41.4, at the beginning of their fellowship, at the end of each calendar quarter, and at the end of the fellowship. The fellow’s supervisor must file a “Report on Individuals Who Perform Senate Services,” known as form 41.6, which is often signed by the Senator. While these forms are available to the public, they are not electronically available and anyone interested in seeing them must visit the Senate Office of Public Records during business hours.

While these forms offer fascinating insight into which industries and Senators are utilizing the fellowship program, they also demonstrate how much we don’t know. POGO examined all of the 2,014 publicly available forms on file at the Senate Office of Public Records as of April 22, 2016, to determine the extent of compliance with the law. In our review, we found that approximately 27 percent were missing data on the source of the fellow’s compensation, and approximately 24 percent were missing data on how much the fellow was being paid. We also discovered instances where Senators employed fellows but failed to file the appropriate forms.

On the House side, there was no disclosure at all and no records to be reviewed. According to the House Ethics Manual, the fellows are required to comply with the Code of Official Conduct, but there are no rules requiring reporting and no forms collected by the House Office of the Clerk. The ethics manual also states: “[W]hile internship and fellowship programs are often sponsored by educational institutions, other public or private organizations may act as sponsors, provided the arrangement does not give undue advantage to special interests.” How the House ensures compliance with this requirement is a mystery.

The Appearance of a Conflict of Interest

The rules governing the Senate program are fairly simple: Both the Senator and the Fellow must avoid all conflicts of interest, including the appearance of a conflict. But in POGO’s review, we were able to find several examples of Fellows working on projects that were directly related to the industry paying their salaries. Below are just a few of those examples.

Department of Energy’s National Laboratories

The Department of Energy is responsible for a network of 17 National Laboratories conducting all kinds of scientific research. Three of these labs, Sandia National Laboratories, Lawrence Livermore National Laboratory, and the Los Alamos National Laboratory, have multi-billion dollar budgets and focus on ensuring the US nuclear stockpile is safe, secure, and reliable. The DOE’s National Nuclear Security Administration manages the labs by hiring contractors to run them—contractors who have a large financial stake in ensuring their work continues and have long worked to influence Congress in any way possible. In recent years they have focused on gaining support for a $1 trillion nuclear modernization effort. “A White House official … described the labs to me as being among ‘the biggest rogue elements in the U.S. government,’” former Energy Department senior policy advisorRobert Alvarez wrote.

Stephanie Teich-McGoldrick was a 2015-2016 Congressional Fellow from Sandia National Laboratories, working on the Senate Committee on Energy and Natural Resources. Sandia is one of the largest national labs in the United States and works mainly to ensure the safety and reliability of U.S. nuclear weapons. Sandia Corporation, a subsidiary of Lockheed Martin, manages and operates the lab with an annual budget of $2.9 billion. The Energy and Natural Resources Committee has authorizing jurisdiction over the Department of Energy Labs, which means it has jurisdiction for any policy changes impacting the labs. According to the Congressional record, Teich-McGoldrick worked on legislation directly affecting the labs while receiving a salary of $124,000 paid by Sandia. In April 2016, Senator Maria Cantwell (D-WA) thanked Teich-McGoldrick by name for her work on the Energy Policy Modernization Act of 2016. This bill, which was re-named the North American Energy Security and Infrastructure Act of 2016, passed both the House and the Senate, and includes several references to work done by the national labs. Though neither the House nor Senate versions of the bill mention Sandia National Lab specifically, it’s clear the legislation would affect its work. Indeed, both versions include language on modernizing and increasing the security of the U.S. power grid, an area in which Sandia describes itself as playing “a key role.” It’s impossible for the public to know if Teich-McGoldrick worked on parts of the legislation that would have affected the labs—it is a huge bill and she may well have steered clear of anything to do with Sandia’s work. But there’s no doubt that her position gives the appearance of a conflict of interest.

Fellows in the House are not required to disclose their information.

Teich-McGoldrick is only one of many Sandia-sponsored Congressional Fellows. In 2009 another former Sandia Congressional Fellow named Matthew Allen wrote a report on his time in the House Committee on Homeland Security called Working at Congress: A Sandian’s Experience in which he details what Fellows do. The report also serves to demonstrate how valuable the experience can be, not just for the Fellow but for Sandia as well. One of the reasons Sandia sends people to Congress, Allen wrote, was “the benefit the lab receives in having an employee that can translate the political landscape into opportunities for the lab.” There is, of course, no public record of Allen’s time on the Hill, as Fellows in the House are not required to disclose their information.

Sandia Lab has placed two dozen Fellows over the last 25 years. According to Sandia Lab spokesman Jim Danneskiold, the Lab only sponsors fellows at the request of congressional committees or members of Congress. “Fellows provide unbiased technical assistance, but they never work on specific programs or issues that affect the labs and follow strict requirements that prevent conflicts of interest. Sandia does not seek out Congressional Fellow positions, and only responds when requested,” he told POGO. The other two labs, Livermore National Lab and Los Alamos National Lab, are also no strangers to the Congressional Fellowship program. For example, Kory Sylvester was a 2007-2008 Fellow for Pete Domenici (R-NM) then-Ranking Member on the Senate Appropriations Energy and Water Development Subcommittee. Sylvester’s Fellowship was sponsored by Los Alamos National Security, the managing and operating contractor of the lab and a consortium of big-name contractors including Bechtel, Babcock & Wilcox Technical Services, and URS Energy and Construction. Senator Domenici was known as “Saint Pete” by the nuclear labs for all the money he brought to them. At that time the Los Alamos Lab’s annual budget was $2.7 billion. While Sylvester was working on the committee that decides and appropriates funds for the lab, he was paid $127,000 by the contractor running it. According to Iowa State University’s College of Engineering, Sylvester also completed another Congressional Fellowship at the House Committee on Homeland Security.

A Congressional Fellow sponsored by Lawrence Livermore National Laboratory shows how even when the Fellowship forms are filled out, they may not tell the whole story. Robert Perret was a 1996-1999 Fellow in Senator Harry Reid’s (D-NV) office. Perret’s paperwork indicates his salary was paid by the University of California Regents, a governing board for the University of California network. However, in a September 2000 statement, Senator Reid thanks Perret for his “exceptional work,” stating he actually came from Lawrence Livermore National Laboratory. Livermore lab was managed by the University of California at the time and the address on Perret’s forms is a post office box from Livermore, CA.

It’s not just the National Nuclear Security Administration laboratories that take advantage of this program. POGO found the managing contractor of the Oak Ridge National Laboratory, UT-Battelle, has sponsored at least six Congressional Fellows. Since 2006 they have had at least one Fellow in Senator Alexander’s (R-TN) office every year, some Fellowships lasting longer than a year. This is an advantageous move for the company since in 2011 Senator Alexander became Ranking Member of the Senate Appropriations Energy and Water Development Subcommittee, which decides how much money will go to Oak Ridge National Lab every year. In 2015 he became the Chairman.

These committees decide a lot more than just annual funding. In 2014, Congress passed a bipartisan law called the Federal Information Technology Acquisition Reform Act (FITARA). Lawmakers were concerned when industry experts found that approximately $20 billion is misused or wasted on duplicative information technology (IT) projects every year. FITARA was meant to increase transparency on how IT funds are spent across the federal government. But the Energy Department laboratories didn’t like this added oversight and accountability, and in 2015 they launched a campaign to secure an exemption from its requirements.

It was Senator Alexander who led the charge in getting the labs the exemption they so desperately wanted. Despite the fact that IT experts across the government as well as the Government Accountability Office were strongly against the exemption, it was included in the appropriations bill crafted by the Energy and Water Development Subcommittee. John Rivard was the UT-Battelle Fellow in Senator Alexander’s office at the time, with an annual salary of $168,000. According to Rivard’s LinkedIn profile, which indicates he’s still working in Senator Alexander’s office, he “co-writes legislation, speeches, and op-eds regarding science, energy, competitiveness, and space policy.” Rivard’s place in Senator Alexander’s office and his stated activities give the appearance of a real conflict of interest, and a potential violation of Senate ethics rules.

IEEE-USA

IEEE-USA also has a long history of placing Fellows in Congressional offices (as well as in executive branch offices). The organization has been placing Fellows in Congressional offices since 1974 and keeps a publicly available record of fellowship alumni.

If a Fellow is working on legislation that will directly fund their industry or the company that’s paying their salary, there’s a clear conflict of interest.

One recent IEEE-USA Fellow demonstrates exactly how these Fellows can use their positions to influence policy to be beneficial toward their industry. Robert Bartolo was a 2014-2015 IEEE-USA Fellow in Senator Robert Casey’s (D-PA) office. When Bartolo became a Fellow in September 2014, he had already earned his Ph.D. and worked at the University of Maryland and the Naval Research Laboratory for several years. “One motivation for applying for the Fellowship was out of a concern for the serious implications of climate change and the current lack of a workable and effective plan to actually minimize carbon emissions in the years ahead. This was a policy topic I definitely wanted to work on,” Bartolo wrote in a report about his placement in Senator Casey’s office.

Bartolo got his wish and was able to work on several energy and environment policies, some of which were directly in line with IEEE-USA’s policy goals. In Bartolo’s report, he describes several projects he was personally involved in. During Bartolo’s Fellowship, Senator Casey introduced legislation to promote the development of clean energy fueling infrastructure called the Clean Vehicles Corridors Act (CVC Act). The bill established clean vehicle areas along interstate highways where the infrastructure necessary to refuel clean vehicles, including electric charging and biofuels, would be made available. In his final report to IEEE-USA, Bartolo said he worked with the Environment and Public Works Committee to incorporate aspects of the CVC Act into the Drive Act, a highway reauthorization bill, but the Drive Act didn’t make it out of Committee during Bartolo’s time in Congress. Bartolo stated, “I expended some effort to try and introduce aspects of the CVC Act that would be germane to [the Energy and Natural Resources Committee]. For instance encouraging the Department of Energy (DOE) to provide grants on a cost sharing basis for clean fueling infrastructure.”

This work was directly in line with IEEE-USA’s publicly stated policy goals for this time period. IEEE-USA’s 2014 National Energy Policy Recommendations includes a section on “Transforming Transportation by Diversifying Energy Sources.” These recommendations are remarkably similar to the legislation developed and introduced by Senator Casey. For example, IEEE-USA recommends, “Promoting the development of battery charging infrastructure, and its development by cities, states, and businesses, and along the interstate highway system with the support of the federal government.” IEEE-USA further recommends the development of alternative transportation fuels including, “promoting the use of biofuels.”

Indeed, Bartolo makes no effort to hide that he directly worked on issues related to the interests of IEEE-USA. On his LinkedIn profile, Bartolo lists the issue areas he worked on during his Congressional Fellowship, including Energy and Climate Policy, Renewable Energy Tax Policy, Zero Emission Vehicles, and Energy Efficiency, all of which coincide with information and recommendations in IEEE-USA’s 2014 National Energy Policy Recommendations.

Senator Casey’s office maintains that potential conflicts of interest are strictly monitored. “The vast majority of our office’s congressional fellows were detailed from other government agencies, and any fellow detailed from an organization outside of government was prohibited from working on any issue that could conflict with the organization,” the Senator’s Communications Director, John Rizzo, told POGO.

But Bartolo’s Fellowship seemed to violate Senate rules that require Congressional Fellows to avoid even the appearance of a conflict of interest. It also raises questions about whether Bartolo’s Fellowship was primarily for his educational benefit.

To make matters worse, there is no official record of Bartolo’s time in the Senator’s office, as they never filed the required forms with the Senate Office of Public Records. Senator Casey did file forms for three other Fellows in 2008 and 2009, indicating that at that time his office is familiar with the rule requiring the filing. Yet the only record of Bartolo’s time in the Senator’s office are his reports on the IEEE-USA alumni list and his own LinkedIn page, which circumvents the transparency and accountability purposes of the rule.

These examples are just a small handful of those that clearly demonstrate a failure to comply with the conflict of interest terms of the rule. Some might ask why this is important. After all, why have a Fellow with a wealth of knowledge if they can’t work on developing policy for that field? But conflicts of interest tend to result in policy that benefits powerful special interests at the expense of taxpayers’ interests. That is why the Senate ethics manual requires each Fellowship to be “analyzed on a case-by-case” basis. If a Fellow is working on legislation that will directly fund their industry or the company that’s paying their salary, there’s a clear conflict of interest.

That’s not to say that Congressional offices shouldn’t have Fellows or that the program should be abolished. It’s a valuable resource for both Members of Congress and industry professionals who want to understand the legislative process better. But more scrutiny of potential conflicts of interests is necessary.

It’s important to note that the public only knows about these conflicts because in most cases the Senators and their Fellows followed the rules and filed their agreement and reporting forms as required. They made an effort to be transparent. POGO’s review of this Fellowship program found evidence to suggest that lack of standardized reporting, or in some cases of reporting at all, is a widespread problem.

A Lack of Compliance

The Senate rule was created to provide important transparency of how this Fellowship program is used both by industry and by the Senators themselves. Lack of compliance with the rule significantly undermines its intent. Despite the fact that the reporting forms are required to be filed every quarter, POGO found Fellows or their sponsors frequently failed to comply. As a result it is difficult to know just how many Senate offices are using this program without disclosure. The total lack of disclosure on the House side makes it impossible to know how those Fellowships are being used.

“We’re concerned about both real and perceived conflicts of interest. We think that’s really important…because it impacts the integrity of the fellowship programs.”

One way of getting an idea of how many Fellows have flown under the radar is to analyze the publicly available Fellowship alumni records posted by some sponsoring organizations. These alumni records provide an excellent glimpse into how many Senators have had Fellows but never had them file forms with the Senate Office of Public Records. As noted above, IEEE-USA has a publicly available list of their 87 Congressional Fellowship alumni dating back to 1974. A little under 50 percent of the listed Fellows were in Senate offices, and of those, 76 percent did not file any documentation with the Senate Office of Public Records.

POGO conducted a similar analysis of the Brookings Institution’s Legis Congressional Fellowship, which provides government and corporate applicants the opportunity to work in Congress. But they’re not required to disclose to the public which government or corporate entity they come from. This Fellowship is intended to provide a comprehensive understanding of how Congress works and to help Fellows create a network of contacts on the Hill. One past Legis Fellow states, “I’m not a lawyer, but I fit in very well. I wrote legislation. I wrote speeches. I wrote floor statements. I analyzed bills. Legis makes us better at what we do.” While Brookings does not have a publicly available list of Fellowship alumni, there is an abbreviated list of some of the Congressional and Committee offices where the Institution has successfully placed Fellows in the past. Of the 17 Senators listed, 7 did not have any kind of records for any Fellows filed with the Senate Office of Public Records.

In addition to a total lack of filing, there are several examples of Senators with gaps in their record keeping or no records before a certain date. For example, Senator Ron Wyden’s (D-OR) office filed 82 forms from 1997 until 2000. But between 2001 and 2011 there’s a gap without records for a single Fellow. Through Fellowship alumni lists, like those kept by the American Psychological Association (APA), it’s clear that Senator Wyden’s office was familiar with rule at one time and did have Fellows during this period, despite the lack of records. Kenneth Lutz was an IEEE-USA Fellow in Senator Wyden’s office in 2009. Although there are no records for Lutz’s time there, he stated in a report about his time as a Fellow in Wyden’s office: “Senator Wyden’s office has had many Fellows, and the staff knows how to ease Fellows into legislative work. I was given quite a lot of responsibility by the legislative staff member with whom I worked.”

Similarly, some Senators do not have records for older dates, perhaps indicating they weren’t aware of the requirement at the time. One example of this may be Amanda Clinton, the 2014-2015 APA’s Congressional Fellow in Senator Chris Murphy’s (D-CT) office. While forms were never filed for Clinton’s Fellowship, it appears Murphy filed for other Fellows beginning in early 2016.

There is also a clear lack of standardization in how the forms are filled out. For example, The American Association for the Advancement of Science (AAAS) facilitates Fellowships from a number of different Fellowship sponsors including the American Chemical Society, APA, IEEE-USA, and the AAAS themselves. These organizations are responsible for recruiting, choosing, and sponsoring their fellows while AAAS helps them find placements in Congressional offices. Cynthia Robinson, Director of the AAAS Science & Technology Policy Fellowships, told POGO that potential conflicts of interest are taken very seriously. “They have to be free agents and the sponsoring organizations can’t take any role in dictating what they do throughout the year,” Robinson said. “We’re concerned about both real and perceived conflicts of interest. We think that’s really important…because it impacts the integrity of the fellowship programs.”

But it’s up to the fellows and their supervisors to decide how they disclosure their sponsors on the Senate disclosure forms. Some Fellows cite the AAAS as the source of compensation, while others cite the underlying sponsoring organization. For example, John Cederquist was an IEEE-USA Fellow in Senator Jon Tester’s (D-MT) office from 2010-2011. On his forms he listed AAAS as the source of compensation though the Fellowship was technically sponsored by IEEE-USA. And, as we mentioned above, Senator Reid’s Fellow Robert Perret listed the University of California Regents instead of the Lawrence Livermore National Laboratory as his sponsor. While these simple misrepresentations may not seem relevant, they serve to make analysis of the records more difficult and can undercut the transparency intent of the rule.

A lack of strict compliance with the Senate rule abounds and would appear to indicate a lack of education about what, exactly, is required. For instance, former Senator Herb Kohl (D-WI) filed records for four Fellows from 1989 to 2012. Yet the source of compensation for each is listed as Senator Kohl, indicating either that all the forms spanning 20 years were filled out incorrectly or Senator Kohl was asking all Fellows to fill out disclosure forms, even if they weren’t being paid by a third party. It appears that at least two of the employees listed as Fellows, Arlene Branca and Theodore Bronstein, were full-time staff and would not have been required to fill out the forms.

Senator Michael Bennet’s (D-CO) Fellowship records show a similar pattern. According to records from the Senate Office of Public Records, Jonathan Davidson was a Fellow in the Senator’s office from 2011-2016, though his source of compensation is listed as “Michael Bennet.” A press release from Bennet’s office states Davidson was named Senator Bennet’s Chief of Staff in January 2011, which indicates there was no need for him to file these disclosure forms at all.

Senator Bennet’s records also feature several Fellows with listed compensation as executive branch government offices, including the Department of Defense, Department of Energy, and the State Department. Fellows from the executive branch, or detailees, are not required to file out the same form as the Congressional Fellows. While they are required to file an agreement to comply with the Senate Code of Official Conduct, the form is called a 41.3 and is not available for public viewing. Detailees are also prohibited from working on projects that may be considered a conflict of interest. Over 60 of the 2,014 records reviewed by POGO—forms 41.4 and 41.6—list executive branch offices as the source of compensation.

These kinds of gaps, misfilings, and inconsistencies seem to be the result of a lack of education about exactly what this rule requires. Although the Senate Ethics Committee requires all new Senate personnel to complete a training program on the Code of Official Conduct, neither this rule nor its requirements are directly mentioned in the training documents. Though the Senate Ethics staff told POGO that Senators and their staff would be familiar with the requirement as it would be covered in training on the Ethics Manual, it appears that a more direct inclusion of the rule and its requirements should be adopted to increase compliance. It’s important to consider the fact that while some Members will provide more than enough information to be safe, as is the case with Senators Kohl and Bennet, it seems just as likely that the opposite will happen.

This Fellowship program can be a valuable resource for both Congress and non-government professionals across disciplines. But too often the program is misused. Fellows remain in offices for years, their salaries are often much higher than the typical staffer, and far too often they’re in a position to affect legislative changes that can directly benefit the industry paying their salary. The kind of access this Fellowship program provides is invaluable for these industries. It is yet another way that corporations, foundations, and other outside entities affect the legislative process.”

http://www.pogo.org/straus/issues/congress/2016/the-insidious-and-totally-legal-way-industry-infiltrated-congress.html