[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5112 Introduced in House (IH)]
109th CONGRESS
2d Session
H. R. 5112
To provide for reform in the operations of the executive branch.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 6, 2006
Mr. Tom Davis of Virginia (for himself, Mr. Waxman, Mr. Shays, Mr.
Lantos, Mr. Gutknecht, Mr. Owens, Mr. Platts, Mr. Towns, Mrs. Miller of
Michigan, Mrs. Maloney, Mr. Issa, Mr. Cummings, Mr. Dent, Mr. Kucinich,
Ms. Foxx, Mr. Clay, Ms. Watson, Mr. Lynch, Mr. Van Hollen, Mr. Higgins,
Ms. Norton, Mr. Kanjorski, and Mr. Davis of Illinois) introduced the
following bill; which was referred to the Committee on Government
Reform
_______________________________________________________________________
A BILL
To provide for reform in the operations of the executive branch.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Executive Branch Reform Act of
2006''.
SEC. 2. REQUIREMENTS RELATING TO SIGNIFICANT CONTACTS.
(a) In General.--The Ethics in Government Act of 1978 (5 U.S.C.
App. 4) is amended by adding at the end the following new title:
``TITLE VI--EXECUTIVE BRANCH DISCLOSURE OF SIGNIFICANT CONTACTS
``SEC. 601. RECORDING AND REPORTING BY CERTAIN EXECUTIVE BRANCH
OFFICIALS OF SIGNIFICANT CONTACTS MADE TO THOSE
OFFICIALS.
``(a) In General.--Not later than 30 days after the end of a
calendar quarter, each covered executive branch official shall make a
record of, and file with the Office of Government Ethics a report on,
any significant contacts during the quarter between the covered
executive branch official and any private party relating to an official
government action. If no such contacts occurred, each such official
shall make a record of, and file with the Office a report on, this
fact, at the same time.
``(b) Contents of Record and Report.--Each record made, and each
report filed, under subsection (a) shall contain--
``(1) the name of the covered executive branch official;
``(2) the name of each private party who had a significant
contact with that official; and
``(3) for each private party so named, 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.
``(c) Withholding FOIA-Exempt Information.--This section does not
require the filing with the Office of Government Ethics of information
that is exempt from public disclosure under section 552(b) of title 5,
United States Code (popularly referred to at the ``Freedom of
Information Act'').
``SEC. 602. AUTHORITIES AND RESPONSIBILITIES OF OFFICE OF GOVERNMENT
ETHICS.
``(a) In General.--The Director of the Office of Government Ethics
shall--
``(1) promulgate regulations to implement this title,
provide guidance and assistance on the recording and reporting
requirements of this title, and develop common standards,
rules, and procedures for compliance with this title;
``(2) review, and, where necessary, verify the accuracy,
completeness, and timeliness of reports;
``(3) develop filing, coding, and cross-indexing systems to
carry out the purpose of this title, including--
``(A) a publicly available list of all private
parties who made a significant contact; and
``(B) computerized systems designed to minimize the
burden of filing and maximize public access to reports
filed under this title;
``(4) make available for public inspection and copying at
reasonable times the reports filed under this title;
``(5) retain reports for a period of at least 6 years after
they are filed;
``(6) compile and summarize, with respect to each reporting
period, the information contained in reports filed with respect
to such period in a clear and complete manner;
``(7) notify any covered executive branch official in
writing that may be in noncompliance with this title; and
``(8) notify the United States Attorney for the District of
Columbia that a covered executive branch official may be in
noncompliance with this title, if the covered executive branch
official has been notified in writing and has failed to provide
an appropriate response within 60 days after notice was given
under paragraph (7).
``SEC. 603. PENALTIES.
``Whoever knowingly fails to--
``(1) remedy a defective filing within 60 days after notice
was given under paragraph (7); or
``(2) comply with any other provision of this title;
shall, upon proof of such knowing violation by a preponderance of the
evidence, be subject to a civil fine of not more than $50,000,
depending on the extent and gravity of the violation.
``SEC. 604. DEFINITIONS.
``In this title:
``(1) Covered executive branch official.--The term `covered
executive branch official' means--
``(A) any officer or employee serving in a position
in level I, II, III, IV, or V of the Executive
Schedule, as designated by statute or Executive order;
``(B) any member of the uniformed services whose
pay grade is at or above O-7 under section 201 of title
37, United States Code;
``(C) any officer or employee serving in a position
of a confidential, policy-determining, policy-making,
or policy-advocating character described in section
7511(b)(2)(B) of title 5, United States Code; and
``(D) any officer or employee serving in a position
of a confidential, policy-determining, policy-making,
or policy advocating character, or any other individual
functioning in the capacity of such an officer or
employee, in the Executive Office of the President or
the Office of the Vice President, but does not include
the President or Vice President or the chief of staff
of the President or Vice President.
``(2) Significant contact.--The term `significant contact'
means oral or written communication (including electronic
communication) that is made by a private party to a covered
executive branch official in which such private party seeks to
influence, or obtain nonpublic information about, official
action by any officer or employee of the executive branch of
the United States.
``(3) Private party.--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.''.
(b) Effective Date.--
(1) In general.--Title VI of the Ethics in Government Act
of 1978, as added by this section, takes effect 1 year after
the date of the enactment of this Act, except as provided in
paragraph (2).
(2) Initial regulations.--The initial regulations required
by section 602 of that Act shall be promulgated--
(A) in draft form, not later than 270 days after
the date of the enactment of this Act; and
(B) in final form, not later than 1 year after the
date of the enactment of this Act.
SEC. 3. REQUIREMENTS RELATING TO STOPPING THE REVOLVING DOOR.
The Ethics in Government Act of 1978 (5 U.S.C. App. 4) is amended
by adding at the end the following new title:
``TITLE VII--STOPPING THE REVOLVING DOOR
``SEC. 701. TWO-YEAR COOLING-OFF PERIOD FOR PERSONS LEAVING GOVERNMENT
SERVICE.
``(a) In General.--A covered executive branch official shall not,
for a period of two years after the termination of his employment,
engage in any conduct that would be prohibited under subsections (c) or
(d) of section 207 of title 18, United States Code, if it occurred
within one year after the termination of his employment.
``(b) No Effect on Section 207.--This section does not expand,
contract, or otherwise affect the application of any waiver or criminal
penalties under section 207 of title 18, United States Code.
``SEC. 702. PROHIBITION ON NEGOTIATION OF FUTURE EMPLOYMENT.
``(a) Prohibition.--A covered executive branch official shall not
participate in any official matter in which, to the official's
knowledge, a person or organization with whom the official is
negotiating or has any arrangement concerning prospective employment
has a financial interest, unless a waiver has been granted under
subsection (b).
``(b) Waivers Only When Exceptional Circumstances Exist.--A waiver
to subsection (a) is not available, and shall not be granted, to any
individual except in a case which the Government official responsible
for the individual's appointment as a covered executive branch official
determines that exceptional circumstances exist. Whenever such a
determination is made, the Director of the Office of Government Ethics
shall independently investigate and review the circumstances relating
to the determination, and the waiver shall not take effect until the
date on which the Director certifies in writing that exceptional
circumstances exist.
``SEC. 703. COOLING-OFF PERIOD FOR CERTAIN PERSONS ENTERING GOVERNMENT
SERVICE.
``(a) In General.--A covered executive branch official shall not
engage in conduct relating to a covered entity that would be prohibited
under section 208 of title 18, United States Code, if the official had
a financial interest in the covered entity, unless a waiver has been
granted under subsection (b).
``(b) Waiver.--An agency's designated ethics officer may, if the
Director of the Office of Government Ethics approves, waive the
prohibition in subsection (a) with respect to a covered executive
branch official of that agency upon a determination that the
relationship between the covered executive branch official and the
covered entity is not so substantial as to be deemed likely to affect
the integrity of the services that the Government may expect from the
official.
``(c) Definition.--In this section, the term `covered entity' means
an entity--
``(1) in which the official, within the previous 2 years,
served as an officer, director, trustee, general partner, or
employee; or
``(2) for which the official, within the previous 2 years,
worked as a lobbyist, lawyer, or other representative.
``(d) No Effect on Section 208.--This section does not expand,
contract, or otherwise affect the application of any criminal penalties
under section 208 of title 18, United States Code.
``SEC. 704. PENALTIES.
``Whoever violates section 701, 702, or 703 of this title shall,
upon proof of such knowing violation by a preponderance of the
evidence, be subject to a civil fine of not more than $100,000,
depending on the extent and gravity of the violation.
``SEC. 705. DEFINITION.
``In this title, the term `covered executive branch official'
means--
``(1) any officer or employee serving in a position in
level I, II, III, IV, or V of the Executive Schedule, as
designated by statute or Executive order;
``(2) any member of the uniformed services whose pay grade
is at or above O-7 under section 201 of title 37, United States
Code;
``(3) any officer or employee serving in a position of a
confidential, policy-determining, policy-making, or policy-
advocating character described in section 7511(b)(2)(B) of
title 5, United States Code;
``(4) any officer or employee serving in a position of a
confidential, policy-determining, policy-making, or policy
advocating character, or any other individual functioning in
the capacity of such an officer or employee, in the Executive
Office of the President or the Office of the Vice President;
and
``(5) the Vice President.''.
SEC. 4. ADDITIONAL PROVISIONS RELATING TO PROCUREMENT OFFICIALS.
(a) Elimination of Loopholes That Allow Former Federal Officials to
Accept Compensation From Contractors or Related Entities.--Section
27(d) of the Office of Federal Procurement Policy Act (41 U.S.C.
423(d)) is amended--
(1) in paragraph (1)--
(A) by striking ``or consultant'' and inserting
``consultant, lawyer, or lobbyist'';
(B) by striking ``one year'' and inserting ``two
years''; and
(C) in subparagraph (C), by striking ``personally
made for the Federal agency--'' and inserting
``participated personally and substantially in--''; and
(2) by amending paragraph (2) to read as follows:
``(2) Paragraph (1) shall not prohibit a former official of
a Federal agency from accepting compensation from any division
or affiliate of a contractor that does not produce the same or
similar products or services as the entity of the contractor
that is responsible for the contract referred to in
subparagraph (A), (B), or (C) of such paragraph if the agency's
designated ethics officer determines that--
``(A) the offer of compensation is not a reward for
any action described in paragraph (1); and
``(B) acceptance of the compensation is appropriate
and will not affect the integrity of the procurement
process.''.
(b) Requirement for Federal Procurement Officers to Disclose Job
Offers Made to Relatives.--Section 27(c)(1) of such Act (41 U.S.C.
423(c)(1)) is amended by inserting after ``that official'' the
following: ``or for a relative of that official (as defined in section
3110 of title 5, United States Code),''.
(c) Requirement on Award of Government Contracts to Former
Employers.--Section 27 of such Act (41 U.S.C. 423) is amended by adding
at the end the following new subsection:
``(i) Prohibition on Involvement by Certain Former Contractor
Employees in Procurements.--An employee of the Federal Government who
is a former employee of a contractor with the Federal Government shall
not be personally and substantially involved with any award of a
contract to the employee's former employer, or the administration of
such a contract, for the two-year period beginning on the date on which
the employee leaves the employment of the contractor.''.
(d) Regulations.--Section 27 of such Act (41 U.S.C. 423) is further
amended by adding at the end of the following new subsection:
``(j) Regulations.--The Administrator, in consultation with the
Director of the Office of Government Ethics, shall--
``(1) promulgate regulations to carry out and ensure the
enforcement of this section; and
``(2) monitor and investigate individual and agency
compliance with this section.''.
SEC. 5. PROHIBITION ON UNAUTHORIZED EXPENDITURE OF FUNDS FOR PUBLICITY
OR PROPAGANDA PURPOSES.
(a) Prohibition.--Chapter 13 of title 31, United States Code, is
amended by adding at the end the following new section:
``Sec. 1355. Prohibition on unauthorized expenditure of funds for
publicity or propaganda purposes
``An officer or employee of the United States Government may not
make or authorize an expenditure or obligation of funds for publicity
or propaganda purposes within the United States unless authorized by
law.''.
(b) Clerical Amendment.--The table of sections for chapter 13 of
such title is amended by adding at the end the following new item:
``1355. Prohibition on unauthorized expenditure of funds for publicity
or propaganda purposes.''.
SEC. 6. REQUIREMENT FOR DISCLOSURE OF FEDERAL SPONSORSHIP OF ALL
FEDERAL ADVERTISING OR OTHER COMMUNICATION MATERIALS.
(a) Requirement.--Each advertisement or other communication paid
for by an Executive agency, either directly or through a contract
awarded by the Executive agency, shall include a prominent notice
informing the target audience that the advertisement or other
communication is paid for by that Executive agency.
(b) Advertisement or Other Communication.--In this section, the
term ``advertisement or other communication'' includes--
(1) an advertisement disseminated in any form, including
print or by any electronic means; and
(2) a communication by an individual in any form, including
speech, print, or by any electronic means.
(c) Executive Agency.--In this section, the term ``Executive
agency'' has the meaning provided in section 105 of title 5, United
States Code.
SEC. 7. ELIMINATION OF ``PSEUDO'' CLASSIFICATION.
(a) Reports on the Proliferating Use of ``Pseudo'' Classification
Designations.--
(1) Report by federal agencies.--Not later than six months
after the date of the enactment of this Act, each federal
agency shall submit to the Archivist of the United States and
the congressional committees described in subsection (d) a
report describing the use of ``pseudo'' classification
designations.
(2) Matters covered.--Each such agency shall report on, at
a minimum, the following:
(A) The number of ``pseudo''classification
designation policies used by the agency.
(B) Any existing guidance, instruction, directive,
or regulations regarding the agency's use of ``pseudo''
classification designations.
(C) The number and level of experience and training
of Federal agency, office, and contractor personnel
authorized to make ``pseudo'' classification
designations.
(D) The cost of placing and maintaining information
under each ``pseudo'' classification designation.
(E) The extent to which information placed under
``pseudo'' classification designations has subsequently
been released under section 552 of title 5, United
States Code (popularly known as the Freedom of
Information Act).
(F) The extent to which ``pseudo'' classification
designations have been used to withhold from the public
information that is not authorized to be withheld by
Federal statute, or by an Executive order relating to
the classification of national security information.
(G) The statutory provisions described in
subsection (c).
(3) Report by the archivist of the united states.--Not
later than 9 months after the date of the enactment of this
Act, the Archivist of the United States shall issue to the
congressional committees described in subsection (d) a report
on the use of ``pseudo'' classification designations across the
executive branch that is based on the information provided by
agencies, as well as input from the Director of National
Intelligence, Federal agencies, offices, and contractors. All
federal agencies, offices, and contractors shall cooperate
fully and promptly with all requests by the Archivist in the
fulfillment of this paragraph.
(4) Notice and comment.--The Archivist shall provide notice
and an opportunity for public comment on the report.
(b) Elimination of ``Pseudo'' Classification Designations.--
(1) Regulations.--Not later than 15 months after the date
of the enactment of this Act, the Archivist of the United
States shall promulgate regulations banning the use of
``pseudo'' classification designations.
(2) Standards for information control designations.--If the
Archivist determines that there is a need for some agencies to
use information control designations to safeguard information
prior to review for disclosure, beyond those designations
established by statute or by an Executive Order relating to the
classification of national security information, the
regulations under paragraph (1) shall establish standards for
the use of those designations by agencies. Such standards shall
address, at a minimum, the following issues:
(A) Standards for utilizing the information control
designations in a manner that is narrowly tailored to
maximize public access to information.
(B) Procedures for providing specified Federal
officials with authority to utilize the information
control designations, including training and
certification requirements.
(C) Categories of information that may be assigned
the information control designations.
(D) The duration of the information control
designations and the process by which they will be
removed.
(E) Procedures for identifying, marking, dating,
and tracking information assigned the information
control designations, including the identity of
officials making the designations.
(F) Specific limitations and prohibitions against
using the information control designations.
(G) Procedures for members of the public to
challenge the use of the information control
designations.
(H) The manner in which the use of the information
control designations relates to the procedures of each
agency or office under section 552 of title 5, United
States Code.
(3) Regulation to constitute sole authority.--A regulation
promulgated pursuant to this subsection shall constitute the
sole authority by which Federal agencies, offices, or
contractors are permitted to control information for the
purposes of safeguarding information prior to review for
disclosure, other than authority granted by Federal statute or
by an Executive order relating to the classification of
national security information.
(c) Review of Statutory Barriers to Public Access Information.--
(1) Review of statutes.--As part of the report required
under subsection (a)(3), the Archivist shall examine existing
Federal statutes that allow Federal agencies, offices, or
contractors to control, protect, or otherwise withhold
information based on security concerns.
(2) Recommendations.--The report shall make recommendations
on potential changes to the Federal statutes examined under
paragraph (1) that would improve public access to information
governed by such statutes.
(d) Definitions.--In this section:
(1) The term ``congressional committees'' means the
Committees on Government Reform, Judiciary, Homeland Security,
and Appropriations of the House of Representatives and the
Committees on Homeland Security and Governmental Affairs,
Judiciary, and Appropriations of the Senate.
(2) The term ```pseudo' classification designations'' means
information control designations, including ``sensitive but
unclassified'' and ``for official use only'', that are not
defined by Federal statute, or by an Executive order relating
to the classification of national security information, but
that are used to manage, direct, or route Government
information, or control the accessibility of Government
information, regardless of its form or format.
SEC. 8. NATIONAL SECURITY WHISTLEBLOWER RIGHTS.
Chapter 23 of title 5, United States Code, is amended by adding
after section 2303 the following new section:
``Sec. 2303a. National security whistleblower rights
``(a) Prohibition of Reprisals.--In addition to any rights provided
in Title VII of Public Law 105-272, section 2303 of title 5, United
States Code, or any other law, an employee or applicant for employment
of a covered agency may not be discharged, demoted, or otherwise
discriminated against, including denying, suspending, or revoking a
security clearance or otherwise restricting access to classified or
sensitive information, as a reprisal for disclosing covered information
to an authorized Member of Congress or to an authorized official of an
executive agency, the Department of Justice, or the Inspector General
of the employee's employing covered agency.
``(b) Investigation of Complaints.--An employee or applicant for
employment of a covered agency who believes he has been subjected to a
reprisal prohibited by subsection (a) may submit a complaint to the
Inspector General and head of the covered agency. The Inspector General
shall investigate the complaint and, unless the Inspector General
determines that the complaint is frivolous, submit a report of the
findings of the investigation within 180 days to the employee or
applicant for employment and the head of the covered agency.
``(c) Remedy.--
``(1) Within 210 days of the filing of the complaint, the
head of the covered agency shall issue an order accepting or
rejecting the complaint, or portions thereof, taking into
consideration the report issued by the Inspector General under
subsection (b), if any. If the head of the covered agency
accepts the complaint, he shall implement corrective action to
return the complainant, as nearly as possible, to the position
he would have held had the reprisal not occurred, including
voiding any directive or order denying, suspending, or revoking
a security clearance or otherwise restricting access to
classified or sensitive information that constituted a
reprisal, as well as providing back pay and related benefits,
medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages including
attorney's fees and costs. If the head of the covered agency
rejects the complaint, he shall issue a report to the employee
or applicant for employment detailing the reasons for the
rejection.
``(2)(A) If the head of the covered agency, in the process
of implementing corrective action under (c)(1), voids a
directive or order denying, suspending, or revoking a security
clearance or otherwise restricting access to classified or
sensitive information that constituted a reprisal, the head of
the covered agency may re-initiate procedures to issue a
directive or order denying, suspending, or revoking a security
clearance or otherwise restricting access to classified or
sensitive information only if those re-initiated procedures are
based exclusively on national security concerns and are
unrelated to the actions constituting the original reprisal.
``(B) In any case in which the head of a covered agency re-
initiates procedures under (2)(A), the head of the covered
agency shall issue an unclassified report to its IG and
authorized members of Congress (with a classified annex if
necessary), detailing the circumstances of the agency's re-
initiated procedures and describing the manner in which those
procedures are based exclusively on national security concerns
and are unrelated to the actions constituting the original
reprisal. The head of the covered agency shall also provide
periodic updates to the IG and authorized members of Congress
detailing any significant actions taken as a result of those
procedures, and shall respond promptly to inquiries from
authorized Members of Congress regarding the status of those
procedures.
``(3) If the head of the covered agency has not accepted or
rejected the complaint within 210 days of the filing of the
complaint, and there is no showing that such delay is due to
the bad faith of the complainant, the complainant shall be
deemed to have exhausted his or her administrative remedies
with respect to the complaint, and the complainant may bring an
action at law or equity for de novo review to seek any relief
described in (c)(1) in the appropriate district court of the
United States, which shall have jurisdiction over such action
without regard to the amount in controversy. A petition to
review a final decision under this subsection shall be filed in
the United States Court of Appeals for the Federal Circuit.
``(4) The complainant may obtain review of any order issued
under this section in the appropriate district court of the
United States or the United States Court of Appeals for the
Federal Circuit. No petition seeking such review may be filed
more than 60 days after issuance of the order by the head of
the agency. Review shall conform to chapter 7 of title 5. A
petition to review a final decision of a district court under
this subsection shall be filed in the United States Court of
Appeals for the Federal Circuit.
``(5)(A) If, in any action for damages or relief under
subsections (c)(3) or (c)(4), an executive branch agency moves
to withhold information from discovery based on a claim that
disclosure would be inimical to national security by asserting
the privilege commonly referred to as the ``state secrets
privilege,'' and if the assertion of such privilege prevents
the plaintiff from establishing an element in support of the
plaintiff's claim, the court shall resolve the disputed issue
of fact or law in favor of the plaintiff, provided that an
inspector general investigation under subsection (b) has
resulted in substantial confirmation of that element, or those
elements, of the plaintiff's claim.
``(B) In any case in which an executive branch agency
asserts the privilege commonly referred to as the ``state
secrets privilege,'' whether or not an inspector general has
conducted an investigation under subsection (b), the head of
that agency shall, at the same time it asserts the privilege,
issue a report to authorized Members of Congress, accompanied
by a classified annex if necessary, describing the reasons for
the assertion, explaining why the court hearing the matter does
not have the ability to maintain the protection of classified
information related to the assertion, detailing the steps the
agency has taken to arrive at a mutually agreeable settlement
with the employee or applicant for employment, setting forth
the date on which the classified information at issue will be
declassified, and providing all relevant information about the
underlying substantive matter.
``(d) Construction.--Nothing in this section may be construed to
authorize the discharge of, demotion of, or discrimination against an
employee for a disclosure other than a disclosure protected by
subsection (a) of this section or to modify or derogate from a right or
remedy otherwise available to the employee or applicant for employment.
``(e) Definitions.--In this section:
``(1) The term ``covered information,'' including
classified information, is information that an employee
reasonably believes to provide direct and specific evidence
of--
``(A) a violation of any law, rule, or regulation,
or
``(B) gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific
danger to public health or safety.
``(2) The term ``covered agency'' means one of the
following:
``(A) The Central Intelligence Agency.
``(B) The Defense Intelligence Agency.
``(C) The National Imagery and Mapping Agency.
``(D) The National Security Agency.
``(E) The Federal Bureau of Investigation.
``(F) The National Reconnaissance Office.
``(G) Any other Executive agency, or element or
unit thereof, determined by the President under section
2302(a)(2)(C)(ii) of title 5, United States Code, to
have as its principal function the conduct of foreign
intelligence or counterintelligence activities.
``(3) The term ``authorized member of Congress'' means a
member of the House Permanent Select Committee on Intelligence,
the Senate Select Committee on Intelligence, the House
Committee on Government Reform, the Senate Committee on
Homeland Security and Governmental Affairs, and the committees
of the House of Representatives or the Senate that have
oversight over the program about which the covered information
is disclosed.''.
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