Hearing of the Committee on Rules
ORIGINAL JURISDICTION HEARING ON THE PRESIDENT'S
"FREEDOM TO MANAGE" INITIATIVE
Tuesday, November 13, 2001
The committee met, pursuant to call, at 4:02 p.m. in Room H-313, The Capitol, Hon. David Dreier [chairman of the committee] presiding.
Present: Representatives Dreier, Linder, Myrick, Sessions, Reynolds and Frost.
The Chairman. The committee will come to order. I know that my colleagues have opening statements, and I am going to make some brief comments, and let me say that the purpose of today's hearing is to examine the President's Freedom to Manage Initiative, which was transmitted to Congress on October 17th. Specifically the hearing will seek to determine the scope of the initiative and the kind of authority that Congress should grant the President for any kind of statutory changes he may propose.
I want to commend the President for his commitment to management reform. I know many of us here in the Congress agree there is a great need to reform the management of Federal agencies. As the President notes in his Management Agenda, Congress, the executive branch, and the media are generally more interested in launching new programs than in reviewing existing ones. Over time, the continuing creation of duplicative programs with overlapping missions and competing agendas has resulted in a Federal Government that is in many cases inefficient and wasteful. It is thus appropriate that we engage in this effort to reform and rethink how the government operates.
We must be cautious, however, to proceed with this effort in a deliberative manner. Part of our purpose today is to examine whether the mechanism for achieving reform that the President has proposed is the most appropriate. We need to fully analyze the scope and form of authority that is appropriate for Congress to grant to the President for management reforms.
To that end, we have distributed a discussion draft of a bill, which Mr. Sessions has been working on. This draft, while based on the President's legislative proposal, is an attempt to create legislation that is more in line with congressional obligations and responsibilities. We hope to use this hearing to get input on both the President's proposal and the discussion draft in order to determine the appropriate mechanism by which meaningful management reforms can be achieved.
And let me say that before we call on our colleague Senator Thompson -- well, those who are in this room have had an opportunity to read my opening statement, since they are not going to be able to get it streamed through the World Wide Web. I am not going to reread it. Let me say that I know that my colleague Mr. Frost would like to offer a statement. Mr. Sessions, I just mentioned in my opening statement, had been working on this issue of management reform, and let me say that as soon as we begin, I know Senator Thompson has a meeting that he has to go to in just a few minutes, and I have a meeting, so since I will have already finished my opening statement, you will just be beginning yours, Senator. I am going to leave before you will. Mr. Linder is going to preside. So let me first call Mr. Frost.
[The statement of Mr. Dreier follows:]
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. Mr. Frost. Well, thank you, Mr. Chairman. Mr. Chairman, the proposal submitted to the committee from the President of the United States is interesting, to say the very least. That the President, this one or any other who follows him in office, should advocate the notion that the Congress of the United States should essentially roll over and play dead is laughable, or it would be if it were not so presumptuous and oblivious to the responsibilities given to the three branches of government by the Constitution of the United States. To suggest that the Congress of the United States has absolutely to say other than yes or no in a proposal to repeal, amend or create Federal law flies in the face of what every school child in this country knows: The Congress makes laws, and the executive branch carries them out. It is not our role to serve as yes men for the President, no matter who sits in the Oval Office.
Mr. Chairman, I must ask why the Majority on this committee has given us a discussion draft which represents a so-called refined and revised version of the President's submission. I must ask if it is the intention of this committee to pursue this matter, and if so, when might we expect that further hearings will be scheduled so that other Members of Congress besides our distinguished colleague, the Senator from Tennessee, might have the opportunity to present their views on this broad grant of legislative authority to the President of the United States?
We are holding this hearing today because this committee has original jurisdiction over rules and procedures in the House of Representatives, but, Mr. Chairman, I believe that members of this committee have the responsibility to think carefully about initiating or advocating a process which would in effect take away legislative authority from the standing committees of this body, as well as the standing committees of the Senate. We should think carefully about granting the President and his representatives the sole authority to determine how laws should be amended, if they should be repealed, or if new laws should be enacted to the executive's exact specifications.
Is this committee willing to give up our fundamental and basic role, which is to determine the rules for the debate of legislative proposals in this body? This proposal would give the President the right to set the terms of debate in both the House and the Senate for what could be major legislative initiatives.
If this is the case, Mr. Chairman, then this committee, as well as all the others in both Chambers, might as well pack up and go home. I find it ironic that just last week this committee was in a hurry to report legislation purported to give legislative committees more time to conduct oversight, yet now we are holding a hearing that will take away any authority those committees have to determine which laws need to be repealed, amended or created.
This is potentially a slippery slope, Mr. Chairman, and I hope we as representatives of the legislative branch are ready to dig in and not give this proposal any traction.
[The statement of Mr. Frost follows:]
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. The Chairman. Well, I guess I will infer from your statement that you should appear in the undecided column on this --
Mr. Frost. I think you should infer that a strong letter will follow.
The Chairman. Yeah. And let me say that we obviously don't want all of the horror stories that you have just outlined to come to pass, and I think that is the reason that we are moving forward in the very deliberative fashion that we are. And I would like to see if any of my other colleagues would like to offer any opening remarks.
Mr. Linder.
Mr. Linder. Mr. Chairman, it seems to me that over the last 30 years, Congress has misunderstood oversight and thought they should micromanage. The executive branch is clearly the manager of our executive part of government, and to the extent we can make it more easy for them to do that and more efficient, we ought to do that. We are not about to give up our ability to oversee, and nothing in the proposals I have read allows us to do that. So I am prepared to move forward, listen to the proposal and give the administration the opportunity and the power to manage.
[The information follows:]
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. The Chairman. Mrs. Myrick?
Mrs. Myrick. Thank you, but no comment.
The Chairman. Mr. Sessions?
Mr. Sessions. Yes. Thank you, Chairman.
I, too, agree with Mr. Linder. I believe that the essence of what the administration and certainly Senator Thompson are attempting to propose today is an opportunity for any administration, in this case the Bush administration, to bring forth those ideas that they have about changing those rules and regulations in the way that they do business. And based upon the -- their argument and how they place their argument and how balanced it is would determine whether this Congress then follows through with its job to debate those opportunities and either agree or disagree.
I don't think we are abdicating any part of our responsibilities. I would think that this is something that any administration would welcome an opportunity to get in and get comfortable with their business and then find out the things they would like to change, and at least then come to the Congress and ask for the change, unlike a prior administration that simply did anything they wanted by executive fiat and then left us all wondering about what they were going to do and what the impact would be.
So I think this is a part of good government, and I applaud the Senator from Tennessee for his leadership on this measure.
[The information follows:]
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. The Chairman. Well, thank you very much, and let me just say that obviously we do want to proceed with this and take into consideration the concerns raised by any of our colleagues, and we are very happy that Senator Thompson has introduced the President's proposal. We all know he is the Ranking Member of the Governmental Affairs Committee in the Senate, and having introduced the President's package, he seemed to be the natural witness to come before us to outline the proposal. And we look forward to your testimony. We are happy to have you.
STATEMENT OF HON. FRED THOMPSON, A UNITED STATES SENATOR FROM THE STATE OF TENNESSEE
. Senator Thompson. Thank you very much, Mr. Chairman. I will leave it to some of the others to get into the details of the particular proposal, but I would like to maybe add a few comments from my particular vantage point that might be helpful in this.
I do believe that this piece of legislation will help in bringing about some common-sense management to the Federal Government that is sorely needed. I have spent a lot of my time as Chairman and Ranking Member of the Governmental Affairs Committee dealing with these issues. Clearly we are going to have a nice spirited discussion as to how best to move forward in some of these areas that are a concern to all of us, but I think that it is important to keep in mind the nature of the problem that we are trying to address. I don't think that we fully understand or appreciate how intractable it is and how much damage it is doing to our country, both in terms of people's confidence and faith in their own government.
And now I believe we are seeing some national security chickens coming home to roost because of these problems that we have been seeing year after year after year. It is easy to be critical of a particular solution to address this set of problems, but we have got to acknowledge, I think, in the United States Congress that we have done very little really up until now to get a handle on it. We see year after year after year the high risk list, for example, where we -- we are seeing a list of programs that are subject to waste, fraud and abuse, billions and billions of dollars going out the door to dead people and others who shouldn't be receiving checks; mismanagement -- gross mismanagement, no accountability, inability to manage large information technology projects.
We see more and more all the time how much our lives in the real world depend upon our ability to get a grip on high tech, but it certainly hasn't come to the Federal Government yet, wasted billions and billions of dollars. The IRS always comes to mind, the stovepipe systems that they have created over there trying to get one to talk to the other, and still they have not been able to, although I think they are on the right track now.
Human capital difficulties, we have set it up now so you can't fire the people you ought to get rid of, and you can't keep the people that you ought to be keeping. Overlap and duplication, all of this comes before us time and time and time again, and the problem never finds its way to the budget process. They come up and get fussed on once a year, go back on the high-risk list again next year, make no progress in terms of trying to solve the problem. And when it comes to time to consider the budget, there is very -- very seldom any ramifications in terms of accountability or in terms of anybody being rewarded or punished as far as these management issues are concerned. And you have people within the bureaucracy telling top management -- they come in and people come in and try to do a job, and they are told, in effect, you know, I was here before you got here; I will be here when you leave. We have got all these statutory impediments. Congress won't let us do this. Congressman X won't let us do that. We have got regulations that, if you interpret it a certain way, won't let us make these changes and all that.
What this legislation does is say, tell us what that is. It tells the people and the agencies, identify those things that make it so that you can't do your job.
And now we are in a war. We are in a war on two fronts, and one of those fronts is right here at home. And we are amazed that we -- we don't have people who -- enough people who even speak Chinese, much less Farsi. We are amazed that even though anthrax has been a problem for decades, if not hundreds of years in the world in terms of the difficulties and the many years that people have been trying to use it as weapons, we don't seem to know, after spending billions and billions of dollars, what the nature of the substance is really all about, how it reacts to certain things, how you clean it up or anything else.
A lot of that gets back to these kinds of problems, and it gets back to human capital problems. It gets back to keeping and retaining the kind of people that we need. It gets back to the inability of getting rid of dead wood, and basically it gets back to many years of lack of leadership and lack of accountability.
So basically what this legislation does -- and I am certainly, as I am sure everyone associated with this is -- I am certainly open to working with Members on both sides of the aisle to see what does make sense. Nobody wants to abdicate their responsibility, but we have been abdicating our responsibility for at least a decade, and I think maybe more like two decades, that could clearly be easily identified in terms of the direction that our overall government is going from a standpoint of management, and what this is is an attempt to turn that back around.
I think, as the gentleman said a few minutes ago, I mean, it would be -- it would certainly cut us out of the process if we continued down the road of Executive order by everything, the way we have been used to for a while. This is an attempt by the administration to come before us and say, let us submit this to you. Let us get -- let us get timely consideration on this. We don't have time to wait around any longer in the midst of the national security challenges that our country faces now. You can vote it down if you don't like it, but let us get it on the table in an expedited form and get it considered.
I was just reading that the INS's recent failure, according to the Department of Justice inspector general, the INS so mismanaged the development of an automated system to track individuals who overstay their visas that despite having spent $31.2 million on the project between 1996 and 2000, it, quote, halted the deployment of the system as currently configured, end quote. The IG further stated it was unable to determine the feasibility of operating the system in the future, even though its development had been required by law since 1996. Clearly we need the ability to track foreign nationals who are in this country temporarily. Just one example of the kinds of things that we need to get a handle on.
I think that this is -- this is a good initiative. I am proud to be a sponsor of it. I hope that it will be considered and, you know, let the discussion begin on it. I think that it will wind up in whatever form it comes out in serving the country's interest, and I can't think of a better time. That is the reason I am proud to be over here today in the midst of everything that is going on on the other side, because I can't think of a more appropriate time and a more important time for us to be considering this issue. It is not arcane. It is not the typical kind of management drudgery that we often have to deal with in this committee and our committee. It is very much at the center of what this country is having to deal with.
Thank you, Mr. Chairman.
Mr. Linder. [Presiding.] Thank you.
[The information follows:]
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. Mr. Linder. Senator, is there anything in this legislation that you perceive would interrupt Congress's authority or ability to have oversight over Federal agencies?
Senator Thompson. No. I don't think it has anything to do with oversight really.
Mr. Linder. Is there anything in this legislation that would subsume the Congress's authority in pursuing its statutory responsibilities?
Senator Thompson. I don't think so.
Mr. Linder. Is there anything in this legislation that will remove routine Civil Service protection?
Senator Thompson. No.
Mr. Linder. Thank you very much.
Mr. Frost?
Mr. Frost. Senator, I have a few questions. First I would ask my --
Senator Thompson. I would -- I don't mind entertaining questions. I am in a Republican conference starting at 4 o'clock on the stimulus package, and I am supposed to make a presentation on, and I --
Mr. Linder. Will you give us a couple minutes?
Senator Thompson. Absolutely.
Mr. Frost. I will be as brief as I can.
First I would ask my Republican colleagues if any bill has been introduced in the House. I have a copy of the Senator's bill that was introduced in the Senate, but the question is has anything actually been introduced in the House?
Mr. Linder. No.
Mr. Frost. According to the information that I have, Senator Thompson, this is not limited to security matters. It could be in a wide range of subjects, as I understand it.
Senator Thompson. That is exactly right, yes, sir.
Mr. Frost. And secondly, the legislation that you introduced provides that the Committee on Government Reform shall report the resolution without amendment. That means it is just this great up-or-down vote. They have no option to improve it.
Senator Thompson. That is right.
Mr. Frost. Also the motion is privileged, which means it doesn't come to the Rules Committee. That means it goes straight to the floor; also that the debate shall be limited to not more than 1 hour, the time to be divided in the House equally between a proponent and an opponent to the legislation.
Senator Thompson. That is my --
Mr. Linder. That is correct.
Senator Thompson. Thirty -- ten hours in the Senate. I believe that is right.
Mr. Frost. It is 1 hour in the House.
Senator Thompson. I believe that is right.
Mr. Frost. And that the resolution -- the debate on -- excuse me, that it will be not subject to a motion to recommit in the House, and I don't know what the Senate procedures are.
But my point is that this is an extraordinary procedure that -- let us say, for example, that the President decided he wanted to abolish the IRS Code and that he sent legislation up abolishing the IRS Code. That would go -- if I understand your legislation, that would go to the Government Operations Committee. If they didn't act on it promptly, it would be discharged, and it would go to the floor under a procedure that will be nonamendable and only be debated for 1 hour.
Mr. Linder. In a sense, that is better.
Mr. Frost. That seems like an extraordinary procedure.
Well, let us take -- let us say if the President decided he wanted to abolish the Department of Defense, if you like the IRS. But let us say there is a President you don't like, Mr. Thompson, let us say the President of another party, because Presidents come and Presidents go, and the President of another party sought to abolish an agency that you think is very important to this country. Under your legislation, that will be nonamendable and could be debated for only 1 hour. I find that to be an extraordinary grant of authority to the President, an abdication of authority by this legislative body, and I don't understand it.
Senator Thompson. Well, the Congressman will have the opportunity to vote against an outrage like that, and I suppose that that would be the solution. After watching 8 years of Executive orders which did things that I didn't even -- I wasn't even sure that could be done legislatively, I find this not to be that outrageous.
Clearly it is an expedited proceeding. These are matters that have been on the table for many, many years, have become intractable. Now you have an administration for the first time in a long time who is willing to take them on, lay them on the table, identify precisely what they are trying to do, and trying to rectify what we have built up here after a long period of time in terms of -- in terms of management issues.
You can theorize that abolishing the IRS might be a management or efficiency issue, but I doubt if you would find anything like that coming up. Ultimately we have to vote on the matters that we have to vote on. We would not have the opportunity to take as much time as we usually do on these things. It is a clearly -- it is clearly an expedited procedure, and people can have an honest debate as to whether or not there is sufficient time to consider these matters, but ultimately, of course, you get your vote, up or down.
Mr. Frost. Senator, it really goes to the administration of powers, and I know you are a student of government and a respected Member of the Senate, and what you have established or what you are attempting to establish is a procedure under which the House of Representatives could not change one word in the proposal sent by the President.
Senator Thompson. It is not unprecedented, Mr. Frost, as you know. We do not have to pass this law, or we may, if we choose to. It is being suggested by the executive branch that we take this under consideration.
Mr. Frost. The normal legislative procedure, as we have followed for over 200 years in this country, is the President makes recommendations to the Congress. The Congress takes those recommendations and considers them carefully, sometimes makes changes in them, sometimes never brings them up for a vote, but often, almost always, makes some degree of changes in a recommendation made by any President.
Mr. Linder. Would the gentleman yield for one moment? It is clear that under fast track authority and soon to be trade authority for the President, neither the House nor the Senate can make adjustments.
Mr. Frost. Oh, that is if that passes the House, of course, and that may not pass the House, as you know. And it will be fully debated in the House when it comes up. That is only after a full debate in the House of Representatives, and with the opportunity to offer a motion to recommit and perhaps an offer -- an opportunity to amend. Congressman Levin has a substitute for that fast track proposal, however, that would not be permitted under this legislation. It will be a straight up or down. We would never have an opportunity to vote on Congressman Levin's substitute.
And I know that Senator Thompson has to go to a very important meeting, but I would -- Senator Thompson, you must understand that we take our responsibilities very seriously in this Congress, and I cannot imagine if a Democratic President came to this committee and offered this same proposal that the Republican members of this committee would not be absolutely outraged.
Senator Thompson. Mr. Frost, if a Democratic President over the last 8 years had come before the Congress with any kind of substantive attempt to rectify some of the gross mismanagement in government that I have seen, I would fall over myself in support of it.
Mr. Frost. I believe that that did happen under Vice President Gore's initiatives.
Senator Thompson. Yes. We have downsized the military personnel substantially.
Mr. Frost. And I would say, Senator, that this is an unprecedented grant of authority, and if we were attempting to grant this to a Democratic President, they would be standing on the table.
Senator Thompson. Mr. Chairman, may I be excused?
Mr. Linder. Yes.
Senator Thompson. Thank you very much for your hospitality.
Mr. Linder. Mr. O'Keefe, welcome to the Rules Committee.
Sean O'Keefe is the Deputy Director of the Office of Management and Budget. He oversees the preparation, management and administration of the whole budget and governmentwide management initiatives across the executive branch. Prior to the current employment, Mr. O'Keefe was a professor of business and government policy at Syracuse University. He also served on the United States Senate Committee on Appropriation committee staff for 8 years. Welcome.
STATEMENT OF SEAN O'KEEFE, DEPUTY DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET
. Mr. O'Keefe. Thank you, Mr. Chairman, appreciate it, and thank you for taking up the legislation. I want to commend Senator Thompson on an outstanding effort to at least enjoin the debate, whether we agree with the procedure or any approach that should be followed through or not. It is more a question of at least enjoining the debate and beginning to have this debated.
First and foremost, this is an ingredient of the President's Management Agenda, published in August and discussed as part of his proposals made in February and again amended in April. The objective here is to follow through on the Management Agenda, provide a process for at least enjoining on some of these intractable questions. Its intent is to prevent or facilitate debate and an opportunity to enjoin some of these questions.
Indeed, when the process was laid out for him to consider, at least the idea of trying to establish a procedure for expedited consideration under whatever, the President in looking at the material decided to name it himself, and he indeed provided the title of the Freedom to Manage Act as a hopeful prospect of its enactment and titling it as such.
Again, it is an opportunity to enjoin on issues in a structured way, and whether or not there is a more appropriate manner or extended way to go about doing that, as far as this committee, the Congress, both the House and Senate are concerned, that is something we certainly would defer to the Congress's judgment in terms of how to proceed in that manner. And we would indeed defer to the committee on how to structure the procedures to consider an expedited process, but the operative point is that there be some process for enjoining these questions.
There are a range of statutory impediments which conflict with policy objectives, as enunciated by both advocates as well as critics of various policy proposals. I am back now from my third appointment as a President's appointee, having served in the previous administration.
Mr. Linder. Why?
Mr. O'Keefe. Yeah. I often wonder about that, but having served in the previous Bush administration, as first the Controller and Chief Financial Officer of Defense and later as the Secretary of the Navy. This is now my third appointment, having been through the confirmation process that many times, and as many and as varied as these opportunities have been, one of the things I have found, both disconcerting but also in some odd way reassuring, is that there is some very similar issues that seem to have been working around since the time I first joined the Appropriations Committee 20 years ago on staff there. So as a consequence, there are some enduring questions, and what the fundamental variable in the course of that span of time, in my limited professional experience in dealing with these questions, is that more often than not, there isn't even a procedure to enjoin the debate or discussion. More often than not, it is a consistent annual, year after year kind of argument that seems to blend away as each of the matters are taken up and never really enjoined in a serious way.
More importantly, I think, than a focused or structured process is the mere existence of any process for this kind of consideration, because, again, in my limited professional experience in the previous opportunities, as well as having served here in the Congress during that -- on staff at that time earlier in my professional experience, one of the things that I found most convincing in a process like this is its myriad systems will provide the administrative tool for the purpose of contesting those who would argue that the reason why some management inefficiency exists is because some statutory impediment is extant, is present, that would otherwise impede an efficient or managerially prudent way to go about doing business.
By having this kind of process, it provides an administrative tool for the purpose of contesting, asking specifically for those who believe that there is some statutory impediment to demonstrate what that statutory impediment is, and, again, in my limited experience of 20 years, again, in congressional staff as well as the administration post, I have realized that in most cases, I daresay 9 out of 10 times at least, that when that question is asked to demonstrate, to show what the statutory provision is or any other legal impediment, more often than not it can't be proven. And so as a result, it becomes an opportunity to say to the extent that there is an impediment, that there is an expedited means for its consideration to take it up, and if it doesn't exist, then it is time to get about the business and realize that what we have done administratively is create impediments of our own that have been flushed out as masquerading behind some statutory limitation that would otherwise exist.
It becomes a put-up-or-shut-up tool, and in that regard, anything that is enacted that would provide for an expedited procedure to consider and enjoin on some of these impracticable policy questions would be most appropriate. And, again, I thank you, Mr. Chairman and Mr. Frost, for the opportunity to appear this afternoon. Thank you.
[The statement of Mr. O'Keefe follows:]
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. Mr. Linder. Thank you for being here, and I would just put an exclamation point behind your comment that this is the beginning of the conversation.
Mr. Frost.
Mr. Frost. Well, I have a couple of questions. Under the legislation introduced -- under the legislation introduced by Senator Thompson, which is, in fact, the legislation transmitted by the President, mirrors the legislation the President requested, under section 2, subsection (c), subject to the legislative proposals, the President's legislative proposals under this section may only relate to the elimination or reduction of barriers to efficient government operations that are posed by existing laws that apply to one or more agencies including governmentwide laws or new authorities that will allow for more efficient government operations.
It seems to me a simple reading of that is the President could send up just about anything he wanted to and say this is for the efficiency of the government. Is that a correct reading?
Mr. O'Keefe. Again, there is no presumption here to do a sweeping reorganization effort that you alluded to in your commentary with Senator Thompson, nor, I think, is implied in this commentary. To the extent you want to narrow that to be very specific about a statutory provision which has a procedural impact on a conduct of a contract or a management procedure of some type, that is what we are looking for is an opportunity to do that, and if you think this is too sweeping, by all means, we are prepared to enjoin and discuss that as long and as thoroughly as you think it needs to be, sir.
Mr. Frost. The simple language says that, opposed by existing laws that apply to one or more agencies including governmentwide laws, so it appears to be very sweeping on its face.
Mr. O'Keefe. Yes, sir.
Mr. Frost. The provision that I asked Senator Thompson about that I would like to also ask you about, I am very troubled. The Committee on Government Reform shall report the resolution without amendment. Now, why shouldn't the Congress have the opportunity to exercise its independent judgment in approving whatever recommendations that the President has sent over? Why should we abdicate that authority to the President and who could simply say, this is take it or leave it?
Mr. O'Keefe. Well, the approach was envisioned to be used in circumstances where a very specific provision of law would be up or down voted as to whether either retain it or to repeal it. To the extent that there is an improvement in that debate by permitting a more sweeping set of expedited consideration factors for amendments, Congressman, I would defer to your judgment.
Mr. Frost. And, of course, this legislation only provides for 1 hour of debate in the House, to be equally divided between the Majority and the Minority. The recommendations from the President could indeed be quite sweeping.
I recall my first term in Congress when then President Carter asked the Congress to create a Department of Education. That piece of legislation was on the floor for a very long time, and I don't think anyone in the room here was a Member of Congress at that time, but I can tell you that we had debates that extended into the wee hours, until 2:00 and 3:00 a.m. It seemed like night after night. That legislation came through the Government Operations Committee --
Mr. Linder. Do you still consider it a mistake?
Mr. Frost. I don't consider it a mistake. I didn't consider it a mistake at the time.
Mr. Linder. Oh, okay.
Mr. Frost. That legislation received full consideration by the Congress over an extended period of time. The Minority was guaranteed the right to offer an infinite number of amendments, and many of them, the vast majority, came from the Minority side. No one attempted to cut off those amendments, and we voted on anything you could possibly think of related to education.
Here we have a proposal for legislation going through the exact same committee, the Government Operations Committee, which would only provide an opportunity for 1 hour of debate without the opportunity to offer an amendment, a stark contrast to the procedure that we followed in the creation of the Department of Education, in the creation of the Department of Energy and in the operation of a number of other government agencies. I just find this to be an extraordinary grant of authority to the executive branch and an abdication of authority by the legislative branch that is been proposed.
Mr. O'Keefe. Well, sir, again, the intent here was to create an initial debate and discussion. It has obviously accomplished that task, so I guess the administration should take great satisfaction in the fact that at least we have enjoined the debate and gotten a spirited discussion going on how such a procedure would be constructed. If there is any other alternative that you believe would guarantee at least some closure, an opportunity to enjoin the question and then some closure to it within a finite period of time, whatever you consider to be reasonable, that is an opportunity we are really looking for, as opposed to, I think, being specifically wed to any specific procedural factor.
I certainly would defer to the better judgment of this committee, particularly on how process, rules and procedures should be conducted. But one point that would be disappointing would be a retention of the unlimited opportunity now to defer judgment on a range of issues which, again, seem to be intractable.
I think the issue here is not so much an opportunity to enjoin the debate in a way that would structure it so as to virtually provide an opportunity for certainty that the administration's view would be successful. Quite the contrary. It is more an opportunity that there be an opportunity to enjoin on some of these questions. Every time, for example, there is a provision of law which specifically prohibits the use of time clocks, there isn't any particular reason why that needs to exist, although I am sure that the sponsors of the original legislation, who may not even be located anymore except by some archaeological dig in the legislative history, could offer a reason for it. Nonetheless, if it is proposed, and when we propose it in the budget each year, it is routinely just deferred. There is no opportunity ever to enjoin on it, and as a consequence we continue a series of management practices which are there to serve their own purpose for some reason, and yet there isn't even an understanding why any longer they exist.
So rather than something as sweeping as an organization change, I guess I should be more ambitious in following through on -- Congressman, on what you think would be the expanse of this particular authority. It is more the intractable day in and day out kinds of management challenges that motivate program managers to do things simply because they either know or perceive this to be the way it is intended to by law, and that there isn't questioning of why we continue to do some of the things managerially the way we do it. That is all that is being asked here for is a process, a procedure to enjoin on that and reach some closure, either a reinsistence on why that statutory provision exists or an opportunity to repeal it and move on with a more efficient way to do business.
Mr. Frost. Well, I don't think there is any question that both parties would like to eliminate laws that are not efficient, change procedures in the way government operates, but I am only talking about guaranteeing that democracy functions the way the Founding Fathers envisioned it with a system of checks and balances and with the opportunity for Congress to fully legislate on items that are proposed by the executive branch, rather than just being presented with something, take it or leave it, you have got 1 hour to debate.
Mr. O'Keefe. Fair enough. Thank you, Congressman.
Mr. Linder. Mrs. Myrick?
Mrs. Myrick. I don't have any questions at this time, but I would like to say that I definitely support what you are doing. It is much needed and long overdue, and I am glad to help do whatever I can.
Mr. O'Keefe. Thank you, Congresswoman. Thank you very much.
Mr. Linder. Mr. Sessions.
Mr. Sessions. Thank you, Chairman.
I appreciate you being up here, Mr. O'Keefe. I think your scholastic background and work in government provides you an opportunity to be a real-life manager to talk about the things that are needed for proper management.
You know, in the House of Representatives, I don't know that I participated in this because it is probably so mundane, but I heard about something called corrections day. That is something that the House of Representatives -- it is kind of like a newspaper many times goes back and says, well, we did something, but we did it wrong, we want to correct ourself. We do that in legislative bodies. We go and say, we want to change what we did, and there is one way to do it, and 1 day to do it, and generally it is put together in a package, and most of the time I am sure it is not even debated very much, and we all agree to it.
I view this as an opportunity -- the substance of what you are talking about is not to change big things, but rather to allow this administration or any administration in the light of day, through a process -- and I am going to ask you a little bit in a minute about that process -- to come back and say, now that we are responsible for running the government, there are some things which we think need to be changed, revised, updated, especially since we are dealing with laws that, golly, may go back hundreds of years, to make them -- to put them up in the light of day where the Legislature can then appropriately deal with that. And I think that you should not be bludgeoned for attempting to talk about a process that badly needs done, when, in fact, we have the same sort of thing with corrections day.
I have two questions for you, if possible, please, sir, and it deals with the process, and that is what will the internal process within the administration be to determine what changes should be submitted under this process? Will the determination be made as to an agency Secretary or OMB or a combination of both? It would seem that there would need to be a standard establishment of a process within the administration to ensure that the changes transmitted to Congress are structurally changes that need to be made and not legislative policy changes.
Mr. O'Keefe. Indeed. That was one -- you had a second question?
Mr. Sessions. Yes, I do. And I will let you answer this first one, unless you would like them both.
Mr. O'Keefe. No, that is fine. That is your pleasure, sir. Thank you.
I guess the internal procedure that we would envision is that the department and agencies each year, as part of a budget development process -- because that is the one compendium that does many manage to focus the attention in the minds of all the departments and agencies on a range of different programs, as well as managerial and financial issues that need to be forced. And in the context of that budget review, what we are engaged in now in anticipation of some success of this is asking the departments and agencies to provide for the President's consideration those specific provisions of law that they feel, if modified, repealed or adjusted in some way, could permit them to manage in a more appropriate, efficient way; and that they, therefore, serve up those ideas for the President's consideration.
Our intent is, toward the conclusion of this budget review -- is to package those for the President's consideration, identify a finite number of them, after we have gone through what the policy implications would be of them, and offer them to the President's consideration to be included in the President's budget, and to start this clock moving, assuming we are successful in seeing something enacted on a procedure that would permit its earliest consideration.
Even if there isn't, our intent is to provide that identified list so that all Members of Congress can at least say what it could have the opportunity to enjoin under this procedure, and if it is such a compelling list that it doesn't need an expedited procedure, and everyone is motivated to rush to the well for the purpose of introducing provisions to either amend or modify, repeal any of those provisions, we consider that to be successful as well.
So it would be coming from the President, not an individual department, agency heads, per se, but it would originate at those locations.
Mr. Sessions. Good. So the President is a big enough person where he could request it himself and say, this is a package -- so we could formally understand that.
Mr. O'Keefe. That is our intention.
Mr. Sessions. What we are talking about is allowing you to manage your business with the consent and agreement of the legislative body, and this body routinely does things which place burdens or our processes, on the administrative -- or the executive branch of government.
Nearly 2 weeks ago the Rules Committee ordered -- reported H.R. 981 to establish a biannual budgeting process and appropriations process. One of the problems that I think that we have heard from the administration is that agency and program managers just face the constant prep race of since one step has started, another one is time to go, and they are constantly dealing with those things that are budgetary and get their budgets done. Well, that is something that has a huge impact on the executive branch, but it also is, I think, coauthored, authored, because we have had the same problem up here. So I think that that is a process that we are trying to get better on.
From your specific perch, what do you think about this biannual budgeting as an expense manager of the government?
Mr. O'Keefe. Certainly it is part of the President's Management Agenda, and his articulation of what he would see as a contribution to the efficiencies of process would be an improvement to have a biannual budget process.
Having said that, I think this is one of many different process initiatives that could and should be considered. I certainly commend the committee for enjoining on that debate because it has the opportunity, I think, to consider what the range of challenges are on the timetable, on the calendar in considering not only development of budget, but, as you rightly point out, Congressman, the challenges of getting 13 appropriations bills enacted in a timely matter.
Here we are in the middle of November, and three, four are enacted at this juncture. So it is a long way yet to go. And a biannual budget process would be one of many different ways to contribute to improving that procedural set of issues on the important business of not only resource management, but also resource allocation. It is an important function that the Congress performs.
Mr. Sessions. My point in bringing this up is this was a legislative initiative, but it has a huge interaction with the executive branch, and I would hope that by the spirit of this legislation, we are saying that we would like to hear from the President of the United States about those things which the Congress has a huge measure in.
I want to thank you for your time and your commitment to what you are doing --
Mr. O'Keefe. Thank you, Congressman.
Mr. Sessions. -- for the people and taxpayers of the country.
Mr. O'Keefe. I appreciate your very thoughtful comments. Appreciate it.
Mr. Linder. Mr. Reynolds.
Let me just assure you that part of the genealogy of this committee -- and it is prudent of you, because --
Mr. O'Keefe. Well, thank you, sir.
Mr. Linder. Thank you for being with us.
Mr. O'Keefe. No. Thank you, sir. Appreciate it.
Mr. Linder. Our next witness will be David M. Walker, Comptroller General, General Accounting Office. David Walker is the Comptroller General of the United States where he serves as the Nation's chief accountability officer and head of the General Accounting Office. Mr. Walker has been instrumental in reinvigorating the GAO to maximize Congress's ability to hold the Federal Government accountable in the 21st century information age. And did I mention the fact that he is from good old Georgia in my earlier introduction of him? Welcome.
STATEMENT OF DAVID M. WALKER, COMPTROLLER GENERAL, UNITED STATES GENERAL ACCOUNTING OFFICE
. Mr. Walker. Thank you, Mr. Chairman. I have a statement which I would like to submit for the record.
Mr. Linder. Thank you.
Mr. Walker. I would just like to summarize my statement briefly.
Mr. Linder. We welcome that summary.
Mr. Walker. As always, I will try to be as candid and constructive as possible on these kind of topics.
I appreciate the opportunity to testify on this Freedom to Manage Act. Let me say at the outset that there clearly is a need to engage in a comprehensive review and reassessment of not only how government should do business, but what the government should do in light of challenges that we face today, and in light of long-range fiscal challenges that we are going to face tomorrow based upon all the work the GAO has done. In that regard, we think it is a good idea that the administration has asked all the departments and agencies to try to come up with a list, a compendium, if you will, of the legislative barriers, either mandates in the form of reporting requirements, purchasing requirements or whatever else, that in their opinion could unreasonably constrain their ability to get their job done to maximize the performance of the government without undercutting accountability.
This is something that we recommended a number of years ago. It is something that every now and then gets talked about, but rarely gets done. I will tell you the last time that it was done was about 1997, I believe, and it turned out that a lot of the "barriers" were self-imposed; that the departments and agencies had, in fact, imposed their own barriers through regulations or through processes. Nonetheless, it is desirable -- in fact, I would argue it is necessary from time to time -- to engage in one of these comprehensive reviews.
The real question from my standpoint, Mr. Chairman, is not whether or not the review should be done, not whether or not Congress should consider possible elimination of some of these types of potential barriers or burdens, but how it should be done. The legislation that is before you would propose an expedited handling for elimination of possible barriers or burdens. I would say that the concept has some potential merit; however, it is very broad. It is not well defined as to what the scope of the types of items that you would likely see. It could end up being reporting requirements. It could end up being procurement mandates. It could deal with regulatory requirements. It could deal with government organization. It is not clear exactly how broad the scope might be.
While the administration may not intend for it to cover some of these items, there is nothing in the legislation that would preclude, these types of activities. It could include both substantive and nonsubstantive items. It could include elimination of existing requirements, as well as proposal of new legislative activities. And, as you know, it proposes an expedited time frame for an up-or-down vote without amendment, bypassing the authorizing committees.
To me, as I said, it is not a matter of whether or not this type of review should be done and whether or not legislation should be considered. It is a matter of how. As presently drafted, it would represent a significant change in the current balance of power. However, as has been said by the prior witnesses, this is the beginning, not an end, and therefore, the Congress may wish to consider doing something in this area. But if the Congress is going to do something in this area, we would respectfully suggest that you may want to consider narrowing the scope, segmenting the topics, and stratifying the time frames and the process based upon the nature of the item and the level of risk that might be involved.
We would also respectfully suggest that consideration be given to the fact that Congress is likely to ask the GAO and/or possibly others as to what they think about the proposals, because they are likely to be package proposals rather than independent proposals, and obviously we are going to need a reasonable amount of time in order to be able to assist our client to be able to do that.
In the final analysis, there may be some need for expedited consideration of certain types of management reform items that represent elimination of existing barriers or mandates and circumstances that may not be that controversial, but, because these types of issues frankly aren't that sexy, they aren't likely to get considered quickly if at all. But as the scope as presently defined, it is asking for a lot without providing a lot of specificity.
Thank you, Mr. Chairman.
Mr. Linder. Thank you very much, David.
[The statement of Mr. Walker follows:]
******** INSERT 1-4 ********
. Mr. Linder. Let me ask you if you would give us a proposal, or if you are not prepared to be specific now, give us a written proposal as to how you might think we should narrow the scope of this legislation on the first hand, and on the second hand, propose a time line for its consideration.
Mr. Walker. Well, we will be happy to work with the committee to try to come up with some alternatives in that regard, and this obviously deals with a very sensitive policy matter as well. So I think the way we would probably want to try to do it is come up with some alternatives for the committee's consideration rather than "the answer," because only the Congress can determine what the appropriate balance is.
Mr. Linder. We would welcome that.
Mr. Walker. We would be happy to work with you to do that.
Mr. Linder. We would also like you to think about time frame.
Mr. Walker. I will be happy to do that as well.
[The information follows:]
******** COMMITTEE INSERT ********
. Mr. Linder. Mr. Frost.
Mr. Frost. Well, I think the gentleman's testimony has been very helpful, and I notice that at one point in the written statement that the gentleman states, the congressional deliberative processes serve the vital function of both granting input from a variety of clientele and stakeholders affected by the changes and providing a check and counterbalance to the executive branch. This normal legislative process is not a model of efficiency, but it does help ensure that any related actions have broad support.
I certainly would agree with that statement, and I notice that further, restrictions on committee consideration and/or amendments can change the legislative process with its normal give and take into an expedited referendum on the President's proposals.
I gather that you would think that we ought to have the opportunity to consider changes or amendments to recommendations made by the President.
Mr. Walker. I think, Mr. Frost, to a great extent, that is part of what has to be worked into the potential options. It depends upon the nature of what the proposal is, and the relevant degree of risk or controversy that might be associated with it. Right now you have got a proposal where one size fits all, where the scope is very broad, and the process is all standardized.
I do think there is a need to do this review. I do think there are circumstances in which expedited consideration would be appropriate, but I do think that we need to come up with some options for both sides to consider.
Mr. Frost. And I notice that in your statement also you say -- this is on page 5 -- it is worth remembering that the Congress has often achieved major changes in highly charged and complex areas through the normal deliberative processes. Welfare and telecommunications reform are two examples. Moreover, special provisions were not needed to prompt the Congress to pass the existing statutory management framework mentioned earlier, so that the normal process -- that is, the amendment process, the give and take process -- through deliberations, vote, both on the committee and on the floor, has worked in some very complicated areas, if I understand your statement.
Mr. Walker. It has, but in fairness, it has not worked in all areas. There are some cases that aren't very complicated, that aren't that complex, but frankly just have not risen to the attention level.
Mr. Frost. I gather that what you are really doing is raising various concerns and red flags about this legislation. I think the testimony is helpful. I look forward to any recommendations that you might make -- further recommendations to the committee. My concern, and I know the concern of others on my side of the aisle, is that we not unduly alter the traditional balance of powers between the executive branch and the executive -- and the legislative branch, a balance of powers that has served this country well for more than 200 years of its history.
Mr. Walker. Well, as you know, Mr. Frost, I work for the Congress, and, therefore, I come down squarely on the legislative branch side, although I have an extensive amount of executive branch experience. I think there are ways to come out with reasoned and reasonable approaches here.
I will say this, however, I think it is important that whatever the Congress decides to do, that it does so based on an institutional consideration rather than on an individual consideration, because this is a procedure that presumably would span several administrations and several Congresses.
Mr. Frost. I would agree with that, and as I tried to point out to an earlier witness, that sometimes there is a President that members of this committee agrees with, and sometimes there is a President that the members do not agree with, and I think your advice is very wise, and think of this from an institutional standpoint rather than who happens to be President of the United States.
Mr. Walker. As you know, reasonable people can differ. Hopefully we are not disagreeable.
Mr. Frost. Thank you very much.
Mr. Linder. Mrs. Myrick?
Mrs. Myrick. Well, thank you for testifying today. I was particularly pleased to hear you say you would be willing to help us in narrowing the scope and dealing with the recommendations on a time frame, too. I think that is very necessary, but, again, I do support the effort.
Mr. Walker. Thank you.
Mr. Linder. Mr. Sessions?
Mr. Sessions. Thank you, Chairman.
General Walker, welcome to the Rules Committee. It is good to see you up here.
General Walker, perhaps for this piece of legislation, if your office had pushed a piece of legislation, that you would have wanted it?
Mr. Walker. My personal view is this proposal is broader than we would like, although I think there is conceptual merit in having expedited consideration of certain types of reform proposals, especially those that are focused on eliminating unnecessary, outdated, redundant reporting requirements and eliminating mandates in certain areas that are outdated. But when you start talking about the scope that it currently has it could not only deal with those types of items, but also new proposals of undefined magnitude. That is where I think we need to try to work and come up with some options for consideration by the Congress.
Mr. Sessions. And I would gather from your comments -- and I will let you fill in the blanks. I would gather you would like it to be more narrow rather than broad.
Mr. Walker. Historically where Congress has provided this type of expedited consideration, there has been a narrower definition of the types of items that may come before it for expedited consideration. I think it is possible to do that, and we would like to try to work with you on that.
Mr. Sessions. Do you believe that your words of wisdom are based upon the narrowness or the broadness, or about the amount of debate and the -- how it would be approved, that process? Which one of those bothers you?
Mr. Walker. Well, my personal view is that there are several different levels. First is the scope. The scope is extremely wide, and as a result, you could have elimination of existing items or proposals of new items. Some could be nonsubstantive and noncontroversial. Some could be very substantive and very controversial.
In addition to that, the time frames are very, very quick. They are not quick if you are dealing with the elimination of existing barriers or burdens that aren't that controversial. They could be very reasoned and reasonable in that circumstance.
On the other hand, in other circumstances I can envision how they would not be reasoned and reasonable, because you may well want to vote yea, but if you don't have enough time to be able to properly analyze it and consider it, you may end up voting nay. And so I think there are ways to try to work out some options for your consideration here.
I was pleased to hear Deputy Director O'Keefe say that the administration is evidently open-minded about this proposal. My understanding is that the President personally signed and transmitted this legislation, and this may be the only piece of legislation that he has personally signed and transmitted up until today. So he cares about the concept, but I would respectfully suggest that it needs some work.
Mr. Sessions. In your duties at the GAO as comptroller General, can you discuss with us in specific or in broad terms about your evaluations -- and you can go into the high-risk series. You can go into anything you would like to -- about the systemic mismanagement of government and how you would not want the President of the United States to have the ability to manage what has been waste, fraud and abuse coming to hundreds of billions of dollars, and where you would not want to give him that ability to bring legislation to this body?
Mr. Walker. Well, I think that clearly the President, no matter who the President is, ought to have the ability to address areas of fraud, waste, abuse, and mismanagement. Clearly this type of review ought to be done. The question is on what basis will the Congress consider these issues what will be the process, what will be the time frames?
I will say that we have worked very closely with OMB and with the Cabinet heads on trying to address the high-risk areas, as well as trying to identify the high-priority management areas that need to be focused on. We tried to take, and we did for the most part, take the same approach with the last administration. When you are dealing with management issues, those should be nonpartisan, and nonideological issues. It is all about good government, and as I said, I think that for many of these areas there ought to be a broad-based consensus, but the scope has to, I think, be narrowed at a minimum.
Mr. Sessions. If you could, as a result of this testimony that we have had here, including the list of things that the Chairman has asked you for and provided to get back to us, I would appreciate by your direction if you could perhaps enunciate for us -- because we have identified one is too large, in other words, too big, and then the other is the right size, and then the other is the process that we go through here -- if you could maybe identify several things from your perspective or your background that would say, here are ideas about a big change and why we think it needs more time in a process, and maybe tell us what is that right -- you know, what is that right time frame to manage the size of the magnitude; and likewise, a small thing that might be considered, as I talked about, corrections day or pro forma, and then how that might fit that legislation there. It would enable us, or at least this Member, the opportunity to address those things that you see that do need correcting and to where you could come up here then and say for a big thing, here is the process that you think that enables this body and the institution to be able to properly address it from a fairness aspect.
As I recall, you are on a 17-year --
Mr. Walker. I have 12 years left of a 15-year term.
Mr. Session. Fifteen-year term. I am sure you will not outlive Mr. Frost in his service to this body, but you will probably outlive me, and I would like for it to be something that we could look back on and that it would be a road map for you to continue working with this body on those things that promote healthy, proper and efficient government. And I want to thank you for your time today and for the service that your organization gives to this body and to the taxpayer.
Mr. Walker. Thank you.
Mr. Linder. Mr. Reynolds.
Mr. Reynolds. Thank you, Mr. Chairman. I just want to thank the gentleman for coming and testifying before the Rules Committee with this information.
Mr. Linder. Thank you, David. I want to say that as one of those who 8 years ago was interested in your appointment, you have made us all proud.
Mr. Walker. I learn something every day. Thank you very much, Mr. Chairman.
Mr. Linder. Well, that adjourns the hearing.
[Whereupon, at 5:15 p.m., the committee was adjourned.]
