Executive Branch Reform Act of 2007

Last updated March 31, 2019

The Executive Branch Reform Act (H.R. 984) was a bill proposed in the 110th United States Congress and would have required thousands of federal officials to report into a government database the names of persons who contact them attempting to "influence" government policies or actions.

The One Hundred Tenth United States Congress was a meeting of the legislative branch of the United States federal government, between January 3, 2007, and January 3, 2009, during the last two years of the second term of President George W. Bush. It was composed of the Senate and the House of Representatives. The apportionment of seats in the House was based on the 2000 U.S. Census.

A government database collects information for various reasons, including climate monitoring, securities law compliance, geological surveys, patent applications and grants, surveillance, national security, border control, law enforcement, public health, voter registration, vehicle registration, social security, and statistics.

The prime sponsor of the bill is Congressman Henry A. Waxman, Democrat of California. In the 110th Congress, the bill is designated H.R. 984.^[1] It was approved, without dissent, by the Committee on Oversight and Government Reform of the U.S. House of Representatives on February 14, 2007. The legislation has not yet been scheduled for action by the full House of Representatives. According to the Washington Post (March 6, 2007), "A spokesman for House Speaker Nancy Pelosi (D-Calif.) says that she backs the measure . . . and that she expects it to get a vote in the House."^[2]

Nancy Patricia Pelosi is an American politician serving as speaker of the United States House of Representatives since January 2019. First elected to Congress in 1987, she is the only woman to have served as speaker, and is the highest-ranking elected woman in United States history. Pelosi is second in the presidential line of succession, immediately after the vice president.

Requirements of the Bill

According as to a letter from the director of the Office of Government Ethics,^[3] the bill would require over 8,000 executive branch officials to report into a public database certain details on nearly any "significant contact" from any "private party." The coverage extends to essentially all executive branch appointees of any president of the United States, including any employee serving in a position in level I, II, III, IV, or V of the Executive Schedule; any employee serving in a position of a "policy-determining, policy-making, or policy-advocating character;" and all military officers of one-star rank and above.

The President of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces.

Executive Schedule is the system of salaries given to the incumbents of the highest-ranked appointed positions in the executive branch of the U.S. government. The President of the United States appoints incumbents to these positions, most with the advice and consent of the United States Senate. They include members of the President's Cabinet as well as other subcabinet policy makers. There are five pay rates within the Executive Schedule, usually denoted with a Roman numeral with I being the highest level and V the lowest. Federal law lists the positions eligible for the Executive Schedule and the corresponding level. The law also gives the president the ability to grant Executive Schedule IV and V status to no more than 34 employees not listed.

The only senior federal officials exempted under the bill are the president, the vice president, and their respective chiefs of staff.

Regarding the requirement to report contacts from any "private party," the bill states, "The term 'private party' means any person or entity, but does not include a Federal, State, or local government official or a person representing such an official." Thus, the bill requires the reporting of contacts from citizens, but does not require the reporting of contacts made by one government official to another.

The bill defines "significant contact" to be any "oral or written communication (including electronic communication) . . . in which the private party seeks to influence official action by any officer or employee of the executive branch of the United States." This definition covers all forms of oral or written communication, one way or two way, whether solicited by the official or not, including letters, faxes, e-mails, phone messages, and petitions.

The covered officials would be required to file quarterly reports listing "the name of each private party who had a significant contact with that official," and "a summary of the nature of the contact, including -- (A) the date of the contact; (B) the subject matter of the contact and the specific executive branch action to which the contact relates; and (C) if the contact was made on behalf of a client, the name of the client." The final provision is apparently meant to cover contacts from persons who are representing the views of others, such as lawyers, representatives of advocacy groups, and paid lobbyists, but the other information must be provided for contacts from every other "private party."

The bill contains certain exceptions, including comments from the public in response to publication of proposed agency rules in the Federal Register, contacts which amount merely to requests for information from a government official or agency, and contacts made by journalists in the course of news gathering.

<i>Federal Register</i> official journal of the US Federal Government

The Federal Register is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published daily, except on federal holidays. The final rules promulgated by a federal agency and published in the Federal Register are ultimately reorganized by topic or subject matter and codified in the Code of Federal Regulations (CFR), which is updated annually.

The bill provides penalties of "administrative sanctions, up to and including termination of employment," for any violation of its requirements. For any deliberate attempt "to conceal a significant contact," there would be an additional penalty of a civil fine of up to $50,000 per infraction.

H.R. 984 also contains unrelated provisions that would place new regulations on so-called "revolving door" practices—that is, government officials moving into private-sector jobs that relate to their previous government employment. These provisions have so far excited far less controversy than the provisions discussed above.

Support

The "Executive Branch Reform Act" is supported by some advocacy organizations as an expansion of "transparency" or "government in the sunshine," but other groups oppose it as an infringing on the constitutionally protected right to petition by making it impermissible for citizens to communicate their views on controversial issues to government officials without those communications becoming a matter of public record.

The right to petition government for redress of grievances is the right to make a complaint to, or seek the assistance of, one's government, without fear of punishment or reprisals, ensured by the First Amendment to the United States Constitution (1791). Article 44 of the Charter of Fundamental Rights of the European Union ensures the right to petition to the European Parliament. The right can be traced back to the Basic Law for the Federal Republic of Germany, the Bill of Rights 1689, the Petition of Right (1628), and Magna Carta (1215).

Among the groups defending the thrust of the bill is Public Citizen, an organization founded by activist Ralph Nader. Craig Holman, legislative representative for Public Citizen's Congress Watch, told the Washington, D.C. newspaper The Hill "that his organization supports the goal of increasing transparency of federal officials’ interactions with private interests. Federal officials should have no reason to be 'ashamed' of their contacts with advocates for the issues they work on, he said....Holman conceded, however, that the officials, private parties and communications that would be covered under the bill might be too broad."^[4]

Public Citizen is a non-profit, liberal / progressive consumer rights advocacy group and think tank based in Washington, D.C., United States, with a branch in Austin, Texas.

Ralph Nader American consumer rights activist and corporate critic

Ralph Nader is an American political activist, author, lecturer, and attorney, noted for his involvement in consumer protection, environmentalism and government reform causes. The son of Lebanese immigrants to the United States, Nader was educated at Princeton and Harvard and first came to prominence in 1965 with the publication of the bestselling book Unsafe at Any Speed, a critique of the safety record of American automobile manufacturers that became known as one of the most important journalistic pieces of the 20th century. Following the publication of Unsafe at Any Speed, Nader led a group of volunteer law students—dubbed "Nader's Raiders"—in a groundbreaking investigation of the Federal Trade Commission, leading directly to that agency's overhaul and reform. In the 1970s, Nader leveraged his growing popularity to establish a number of advocacy and watchdog groups including the Public Interest Research Group, the Center for Auto Safety, and Public Citizen.

The Hill is an American political newspaper and website published in Washington, D.C. since 1994. It is published by Capitol Hill Publishing, which is owned by News Communications, Inc.

Opposition

The position of opponents was initially laid out in a widely circulated memorandum issued by the National Right to Life Committee in February, 2007, which presented a case that such reporting requirements would discourage citizens from communicating their viewpoints to the officials who govern them. The NRLC analysts wrote, "One predictable effect of imposing this isolation on government officials will be to impede countless Americans from exercising their right to petition government officials on policy matters – a right guaranteed by the First Amendment. It would no longer be possible for a private citizen or representative of a group of private citizens to enjoy any degree of privacy when they send a communication on a policy matter to a government official, because the official will be required to report the contact. Once this is generally understood, many citizens will become more reluctant to exercise their constitutional right to petition as freely as they did before. The chilling effect will be especially severe for those Americans who privately advocate for causes disfavored by their own professional peers, social peers, family members, employers, or customers." ^[5]

The U.S. Department of Justice has raised numerous objections to the bill, both constitutional and practical. In a letter to Congressman Waxman, a senior Justice Department official wrote, "Virtually every person or entity's contact with a Government employee is meant to 'influence' that employee's decision in some way. . . [the] language is extremely broad, requiring covered officials to record and report such communications as questions from the audience at speeches and presentations, calls from listeners on radio and television shows in which covered officials participated, discussions with the public at meetings, receptions, and other public and private events. Hundreds of officials in a department or agency may be covered."^[6]

The bill would give the Office of Government Ethics the responsibility of collecting the required reports and enforcing the act. However, the director of that agency sent the bill's author a letter expressing strong reservations about the workability of the legislation.^[3]

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References

↑ Text of H.R. 984 Archived 2007-04-01 at the Wayback Machine . as amended and approved by the HouseCommittee on Oversight and Government Reform.
↑ "Lobbying Bill Sparks Populist Uprising -- on Both Sides", by Jeffrey H. Birnbaum, Washington Post (March 6, 2007).
1 2 Letter from Robert I. Cusick, Director, Office of Government Ethics, to the Honorable Henry A. Waxman, Chairman, Committee on Oversight and Government Reform, U.S. House of Representatives, February 23, 2007.
↑ "Anti-abortion-rights group takes aim at disclosure bill," by Jeffrey Young, The Hill, March 06, 2007.
↑ Memorandum Archived 2007-04-01 at the Wayback Machine .: "Congressman Waxman advances grave new threat to citizens’ ‘right to petition’ government officials," by Douglas Johnson and Susan Muskett, J.D., National Right to Life Committee, February 20, 2007.
↑ Letter from Richard D. Hertling Archived 2007-06-14 at the Wayback Machine ., Acting Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, to the Honorable Henry A. Waxman, Chairman, Committee on Oversight and Government Reform, U.S. House of Representatives, March 8, 2007.

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[1] Text of H.R. 984 Archived 2007-04-01 at the Wayback Machine . as amended and approved by the HouseCommittee on Oversight and Government Reform.

[2] "Lobbying Bill Sparks Populist Uprising -- on Both Sides", by Jeffrey H. Birnbaum, Washington Post (March 6, 2007).

[Letter_from_Robert_I._Cusick-3] 1 2 Letter from Robert I. Cusick, Director, Office of Government Ethics, to the Honorable Henry A. Waxman, Chairman, Committee on Oversight and Government Reform, U.S. House of Representatives, February 23, 2007.

[4] "Anti-abortion-rights group takes aim at disclosure bill," by Jeffrey Young, The Hill, March 06, 2007.

[5] Memorandum Archived 2007-04-01 at the Wayback Machine .: "Congressman Waxman advances grave new threat to citizens’ ‘right to petition’ government officials," by Douglas Johnson and Susan Muskett, J.D., National Right to Life Committee, February 20, 2007.

[6] Letter from Richard D. Hertling Archived 2007-06-14 at the Wayback Machine ., Acting Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, to the Honorable Henry A. Waxman, Chairman, Committee on Oversight and Government Reform, U.S. House of Representatives, March 8, 2007.