Top House Democrat presses Senate to take up watchdog bill

Jul 14, 2021
In The News

House Oversight and Reform Committee Chairwoman Carolyn Maloney (D-N.Y.) is encouraging the Senate to follow the House’s lead in passing legislation that would strengthen the authority of inspectors general and limit the president’s ability to remove them without cause.

Maloney, in an interview with The Hill, emphasized that the IG Independence and Empowerment Act would help prevent the mass ousting of agency watchdogs seen during the Trump administration, when the former president dismissed the inspectors general (IGs) of five agencies in about six weeks.

President Trump’s actions struck at the heart of why we have IGs in the first place, which is to provide a check on the executive branch’s waste, fraud and abuse,” Maloney said. “No president should be allowed to retaliate against IGs for just doing their job. He would just fire them or sideline them, meaning the former president. And this bill would ensure that IGs are protected from this kind of retaliation.”

A president can remove an inspector general for any reason, as long as Congress is notified of the reasoning 30 days before.

Under Maloney’s bill, inspectors general could only be removed for cause and would be granted authority to subpoena testimony from witnesses who are no longer current government employees. Inspectors general would also have to notify Congress if agencies refuse to provide access to requested information.

The House passed the measure last month in a largely party-line vote, with only three Republicans crossing the aisle to vote with all Democrats.

The bill has been referred to the Senate Homeland Security and Governmental Affairs Committee.

Committee Chairman Gary Peters (D-Mich.) and Sen. Chuck Grassley (Iowa) reintroduced a similar bipartisan bill in March that would require any administration to provide “substantive rationale, including detailed and case-specific reasons” in addition to the 30-day notice before removing an IG.

Unlike Maloney’s bill, the Securing Inspector General Independence Act would not limit the reasons for removal.

“It has many of the reforms in it that we have, and we need to get it enacted,” Maloney said. “The House bill is stronger because his bill lacks what I think is one of the most critical provisions, such as the for-cause removal protections.”

Maloney said she has planned a conversation with Peters and reached out to Grassley to discuss her bill. 

On Tuesday, Peters maintained his commitment to bipartisan legislation that safeguards the ability of IGs to act independently.

“I’m proud to lead the effort in the Senate to pass commonsense, bipartisan legislation to ensure these dedicated watchdogs are able to do their jobs without political interference. I look forward to continuing to work with my colleagues in Congress to advance a bipartisan bill,” he said in a statement to The Hill.

A Peters aide said the chairman and Maloney have discussed how to best move such legislation, and he plans to have the Senate Homeland Security and Governmental Affairs Committee take action “as soon as this summer." 

GOP opponents have called Maloney’s bill too far-reaching. Rep. James Comer (Ky.), the top Republican on the House Oversight and Reform Committee, argued that the provision permitting subpoena authority to get testimony from contractors and former federal employees “provides IGs with a tool that can be easily abused for political purposes.”

Maloney defended the authorization for subpoena authority, calling it “the result of years of bipartisan negotiations.”

“The language contains procedural safeguards to guard against abuse or interference in other investigations, and Republicans supported substantially the same language as recently as 2018,” she said. “Unfortunately, some House Republicans seem to oppose this authority in an effort to protect President Trump's administration from accountability.”

Anne Joseph O’Connell, a law professor at Stanford University, commended the legislation for bolstering the authority of IGs but said its for-cause removal protections could lead to more vacancies.

She said the “removal restriction is likely to doom the bill in the Senate,” although she “could see a compromise piece of legislation” that might garner bipartisan support.

“We already have incredible problems with vacancies in IG positions, and removal protection is going to make it worse,” said O’Connell, who specializes in administrative law and the federal bureaucracy.

“When you restrict how you can remove, I think the Senate is going to be more leery of confirming,” she added. “And it’s not just the Senate; I think the White House is going to be more leery of nominating.”

Twelve of the 14 current IG vacancies, the longest of which stretches back seven years, require a presidential nomination. Since taking office, President Biden has named nominees for five offices, with the Senate confirming Robin Ashton as the CIA watchdog last month. On July 30, another vacancy will open as Federal Housing Finance Agency IG Laura Wertheimer resigns.

Liz Hempowicz, director of public policy at the Project On Government Oversight, said a provision in Maloney’s bill limiting who can serve as acting IG might incentivize the president to minimize those long-term vacancies.

“It’s meant to reduce some of the flexibility a president has, which we’ve seen now has often resulted in presidents not nominating individuals to fill these positions at all and relying on acting leadership for far too long,” she said. “By limiting who they can choose, you create an incentive for a president to nominate somebody for that position permanently that will go through the Senate advice and consent process.”

The provision is meant to prevent “dual-hat” arrangements in which an existing agency official is named as acting IG overseeing the same agency. As it stands, it requires the acting IG to be the first assistant in the same office, or if there is no deputy, another senior official from the IG community.

O’Connell said that while she supports the provision, it could be “a bit broader.” She raised the case of Wertheimer, who was found along with her first assistant in an independent watchdog report to have “abused her authority.”

“People were criticizing that she gets to pick her acting because she gets to pick the first assistant. So the legislation would require the first assistant to be the acting,” O’Connell said. “Maybe having a little more flexibility about who could be the acting IG might be important to kind of get around such a situation.”

For Hempowicz, the legislation addresses two items she feels demand immediate attention from Congress: granting IGs the authority to subpoena witnesses who are not government employees and restricting the president’s ability to fire an IG in political retaliation.

“The IG Independence and Empowerment Act represents some of the strongest legislation we’ve seen so far that would provide some real limits, but common-sense limits to when a president could remove an IG,” she said.

As for the bill’s prospects in the Senate, Hempowicz sees “a question mark.”

“Inspectors general usually enjoy very strong bipartisan support in Congress,” she said. “Right now, we are just in this strange time where they have been politicized because Trump fired so many IGs in his last year in office and because IGs did become a problem for the Trump administration.”