Government Executive - Authors - K. Daniel Glover

Davis-Bacon dispute highlights long-running debate over contractor wages

K. Daniel Glover — Wed, 12 Oct 2005 00:00:00 -0400

The 1931 Davis-Bacon Act allows the president to take such unilateral action during national emergencies, but organized labor and its allies in Congress are furious nonetheless. Rep. George Miller, D-Calif., has introduced a bill to overturn Bush's decision, and the measure now has 204 co-sponsors. On TPMCafe, a liberal Web log, Miller has called Bush "immoral" for, in effect, cutting the wages of Gulf Coast construction workers from an already low $7-to-$8 per hour to the federal minimum wage of $5.15 an hour.

The ongoing debate has once again put a spotlight on the 1931 law, which caused minimal concern in Congress when it was enacted, but which has prompted numerous calls for its repeal since. "If you tried to pass Davis-Bacon again, it would never pass -- and Bush wouldn't sign it if it did pass," said law professor David Bernstein, who wrote about the act in a 2001 book, Only One Place of Redress: African-Americans, Labor Regulations, and the Courts From Reconstruction to the New Deal. "But it's always harder to repeal."

The idea of guaranteeing a certain wage on federal construction projects in order to combat "cheap, imported labor" was not always popular. Although Kansas passed the first state law on the subject in 1891, the idea did not take solid root at the federal level until more than 35 years later, when protecting local wages became a pet issue of Rep. Robert Bacon, R-N.Y. And even then, it was largely a personal crusade spurred when in 1927, an Alabama contractor who paid lower wages won a bid to build a veterans' hospital in Bacon's Long Island district.

Based on that episode, Bacon introduced a bill to regulate wages on federal projects. Over the next four years, according to Bernstein's research, Bacon introduced another 13 bills to regulate the labor force on such projects, and Congress held hearings on the issue in 1928, 1930, and 1931. Rep. Elliott Sproul, R-Ill., filed the first bill to mandate the local prevailing wage in 1930, and Bacon incorporated the idea into his own legislation a year later.

By 1931 -- amid the declining wages of the Great Depression and what one lawmaker called "a gigantic [federal] building program, perhaps the greatest the civilized world has ever contemplated" -- the concept stirred little controversy. Former Labor Secretary James Davis, who served Republican Presidents Harding, Coolidge, and Hoover, represented Pennsylvania in the Senate by then and he spearheaded the effort there. Hoover administration officials also testified before Congress on behalf of the legislation.

The Senate passed the measure first, after limited debate. House consideration took a bit longer, but the chamber acted under a procedure for noncontroversial bills that forbade amendments. Rep. Thomas Blanton, D-Texas, decried both the "pernicious bill" and the process for pushing it through the House. "You have got to take it just like organized labor has written it for you, like a bunch of mockingbirds with their mouths open and their eyes shut," he complained.

But Blanton apparently was a minority of one. The Congressional Record indicates that applause regularly punctuated the debate after sound bites like this one from Rep. Fiorello La Guardia, R-N.Y.: "There is not a reputable, responsible contractor in this country who is opposed to this bill."

Although even Blanton conceded that enactment was a foregone conclusion by the time the measure reached the House, some supporters did voice regrets about the final language. Rep. John O'Connor, D-N.Y., said the bill needed "some teeth, some penalty or forfeiture," for contractors who did not pay the average wage. And Rep. Hamilton Fish, R-N.Y., said the measure also should "give preference to local and American labor over alien labor" -- an idea that Bacon said he dropped to speed passage of his "emergency measure."

A more noteworthy omission involved how to determine prevailing wages. The bill let contractors decide, with the Labor Department ready to intervene when necessary. Noting that the Supreme Court had said that the phrase "current rate" as applied to wages was too vague, Rep. William Kopp, R-Iowa, suggested that the Court could make a similar ruling on "prevailing rate."

Kopp, a supporter of the bill, expected the Labor secretary to "formulate a fixed and definite method" for defining the term. But Congress had to amend the Davis-Bacon Act four years later to address that issue, and the difficulty of establishing thousands of average wages for each community has been a core motivation for repealing the law ever since.

Kopp also warned that the law would "be of no value" unless administration officials supported it. But to the applause of his colleagues, he added this thought, which today's Democrats no doubt hope to apply to Bush's party: "If we ever have officials not in sympathy with the law, it will then be time either to change the law or to change the officials. Probably, the latter will be the wiser thing to do."

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Senator's Star Dims, Glows

K. Daniel Glover — Tue, 30 Aug 2005 00:00:00 -0400

Politics is a lot like football, and holding elective office, a lot like coaching. One day you're the goat who blew the big game with that final play call; the next day, you're the hero who led the team to a championship win. Sen. John Thune, R-S.D., knows the feeling well after this week.

First Thune was the whipping boy for liberal bloggers overjoyed that South Dakota was set to lose Ellsworth Air Force Base in the latest round of base closings.

They were thrilled by the prospect not because they loathe Ellsworth AFB or South Dakota but because they despise Thune, the man who ousted Senate Minority Leader Tom Daschle. And they were thrilled because Thune had said during last year's campaign that he would be in a better position than Daschle to save the B-1 bomber's home base because of his ties to President Bush.

The fact that conservative columnist Robert Novak cited the news as evidence of Thune's dimming star made the episode more delicious. The setup was just too perfect. How could the bloggers not gloat?

So gloat they did, starting with the ever-popular Markos Moulitsas of Daily Kos, who took joy in seeing Novak, a target of the left all summer long, "cry over Thune's diminished star."

"He's been made a fool by his own president, has proven his impotence to the [South Dakota] voters, and has likely lost 6,000 mostly GOP-leaning jobs in western South Dakota," Moulitsas wrote of Thune. "Not bad for a first-year senator."

Proud Liberal noted how quickly Thune's fate had changed: "The main theme of the Thune campaign ... was that Thune would be a more effective voice for South Dakota since he is in the majority party and he has/had a close relationship with Bush. Now, a mere 8-1/2 months into a SIX-YEAR term, that all seems like ancient history."

Fortunately for Thune, the story line changed just as quickly in his favor, when the commission that picked the bases for closing reversed course on Ellsworth. The joyful jabs from liberals became ancient history, and conservative praise for Thune punctuated the blogosphere.

"The Democrats gloated when it looked like Ellsworth would be closed," Paul Mirengoff wrote at Power Line, "but now Thune gets the last laugh." GOP Bloggers added: "During his campaign against Tom Daschle, Thune said his relationship with Bush would help keep Ellsworth open. Well guess what? John Thune was right."

And in an allusion to Daily Kos' dismal record of endorsing political candidates, Little Green Footballs said mockingly: "Big oops, Kos! So what does that make -- 0-for-17?"

Moulitsas also addressed the issue after Ellsworth's salvation. Rather than give Thune any credit, though, he said someone "took pity" on the senator, and then Moulitsas took a poke at Bush for not protecting other bases dear to the hearts of Republican lawmakers. "That's what happens when you have an incompetent running the joint," Moulitsas wrote.

The takeaway for folks in the political game: The blogosphere is full of armchair quarterbacks, and their specialty is taking the lemonade you make from lemons and dumping that bittersweet concoction right square in your eyes.

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Homeland security barrier to FOIA reform

K. Daniel Glover — Fri, 12 Aug 2005 00:00:00 -0400

In June, the Senate passed legislation expanding FOIA that was sponsored by Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee, and Sen. Patrick Leahy, D-Vt., the panel's ranking member, and they have other FOIA bills in the pipeline. Rep. Lamar Smith, R-Texas, the chairman of a House Judiciary subcommittee, is pushing companion legislation.

Strengthening FOIA may be difficult, however. Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, said that the emphasis on security since the 9/11 terrorist attacks makes reform a challenge. The Bush administration has been more secretive since then, she said, and the public is also "very concerned that openness makes terrorists' activities that much easier."

The circumstances today resemble those in the 1950s, when the initial congressional push for FOIA began. And back then, amid concerns about releasing sensitive data during the Cold War, it took 11 years to get the concept of "freedom of information" written into law.

FOIA was the brainchild of newspaper editors and writers. But their movement made little progress until Rep. John Moss, D-Calif., took his seat on the House Post Office and Civil Service Committee and was denied information he had requested from the Civil Service Commission. "I was convinced that if there was such a readiness to withhold information from Congress," Moss said in a 1965 interview, "they must be withholding on a massive basis from the public and from others with less leverage."

When Democrats regained House control in 1955 and Moss won a slot on the Government Operations Committee, he persuaded the chairman to investigate the issue. A preliminary study confirmed Moss's suspicions, and he was named chairman of a new subcommittee to explore the topic further. The panel held its first hearing in 1955.

Moss established the extent of the problem by sending a questionnaire to federal agencies. In 1956, the Democratic Party chastised the Eisenhower administration for its secrecy and made "freedom of information" part of its platform. But secrecy in the executive branch was not unique to Republicans. In 1961, President Kennedy encouraged the press to censor itself because of national security concerns, and his successor, Lyndon Johnson, resisted efforts to let the sun shine on government activities.

Despite steady opposition from the Eisenhower administration, Moss and Sen. Thomas Hennings, D-Mo., pushed ahead. Their first small success came in 1958, with the enactment of a narrow bill to amend the 1946 Administrative Procedure Act, which was designed to provide access to information but which many bureaucrats instead had used as justification to withhold it. "It was a small, and largely ineffective, step," George Kennedy, a University of Missouri journalism professor, wrote in a 1996 article on the history of FOIA.

The Senate passed the first broad freedom of information bill on July 28, 1964, and resurrected and passed virtually the same bill by voice vote the next year, in the 89th Congress. The House debate in 1966 focused on the 1946 act. That law only mandated data disclosures to people who were "properly and directly concerned," and it created exemptions for "secrecy in the public interest," "internal management," and even "good cause." Rep. Ogden Reid, D-N.Y., complained during the debate: "This is a broad delegation to the executive. Further, none of these key phrases is defined, nor has any of them ... been interpreted by judicial decisions."

While Rep. David King, D-Utah, acknowledged that the Cold War compelled the United States to "impose some checks on the flow of data," he criticized the "widespread breakdown in the flow of information from the government to the people" over the previous 20 years. "Chaos and confusion have nurtured a needless choking off of information disclosure," King said.

Moss touted provisions in his bill to give all citizens access to government information and to allow judicial review of agency information denials. "It is this device which expands the right of citizens and which protects them against arbitrary and capricious denials," he said. No lawmakers spoke against the legislation, and the House passed it 308-0.

Moss insisted during floor debate that the White House had worked with him on the bill, and Johnson did sign it into law. But Bill Moyers, Johnson's press secretary at the time, recalled in a PBS special decades later: "LBJ had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act.... He dug in his heels and even threatened to pocket veto the bill."

Subsequent administrations have been equally averse to FOIA -- President Ford unsuccessfully vetoed amendments in 1974, for instance. So even if the current Congress clears a bill to strengthen the law, advocates of open government will be kept busy. As Rep. Melvin Laird, R-Wis., said on the House floor in 1966, "We cannot legislate candor, nor can we compel those who are charged with the life-and-death decisions of this nation to take the American people into their confidence."

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Prison labor program under fire by lawmakers, private industry

K. Daniel Glover — Mon, 12 Apr 2004 00:00:00 -0400

But those emblems are far from where the highway meanders to the Federal Correctional Complex just north of Allenwood, where officials are equally concerned about the road away from prison. More than 41,000 federal prisoners nationwide have returned to the streets in each of the past three years, and no one in the Justice Department's Bureau of Prisons wants to see them take a wrong turn onto Recidivism Road.

The desire to steer convicts away from repeat offenses is part of the rationale behind Federal Prison Industries, a quasi-governmental agency that trains inmates in various trades. FPI's goal, said Joseph D. Dubaskas Sr., the associate warden of industries at the Allenwood complex and chief of its three factories, is to employ as many prisoners as possible and to "teach them a skill [and] a work ethic that they can take with them when they go to the street."

"If they're medically able to work and they want to work," he said, "we put them to work."

Some 200 miles away in Washington, the concept of prison labor is a far more complicated matter. Most believe that FPI serves a valuable function. The program keeps the prisoners busy and the penitentiaries more secure, and it teaches trade and business skills to people who may never have worked before. "We get people in here where their only job was to sell drugs on the street," Dubaskas said.

Yet many lawmakers and interest groups have grown increasingly unhappy with the way FPI conducts its business. Twice in the past few years, Congress has voted to force FPI, which sells products such as furniture to the federal government, to compete with the private sector, and last fall the House overwhelmingly passed a bill that would mandate broader reforms. The measure would require FPI to compete for its contracts with federal agencies and to fulfill orders in a timely manner. It also would authorize money for inmate rehabilitation and training to address concerns that changes in FPI's procedures could force prisoner layoffs and thus put a greater strain on prison security. The competing Senate bill, which focuses on forcing FPI to compete for contracts, is expected to move through the Governmental Affairs Committee early this spring. One of the panel's subcommittees held a hearing on the bill on Wednesday. FPI has also been embroiled in a legal dispute with the Coalition for Government Procurement.

"The current management of FPI is full of deceptive, ineffective people," said Rep. Pete Hoekstra, R-Mich., a leading FPI critic. "The current management has shown no empathy in their business decisions for the impact they've had in the private sector."

Private-Sector Pain

Federal Prison Industries, also known by the trade name UNICOR, has its roots in the Great Depression. At the urging of President Franklin D. Roosevelt, Congress created FPI in 1934 and made it the "mandatory source" for products sold to federal entities. Under that system, if FPI wants a particular government contract, private businesses cannot compete for it -- even if they can offer lower prices, better quality, or faster delivery.

The system worked fairly smoothly for several decades, in part because government was smaller then and prisons were not overcrowded with inmates who needed to be kept busy. Back then, with fewer departments and agencies to buy the goods, and fewer prisoners to make them, the program's impact on the private sector was minimal. FPI's sales totaled only $29 million in 1960.

But sales soared by more than 400 percent, to $117 million, by 1980. The total more than doubled again, to $238.9 million, in the next five years, and it peaked at $678.7 million in 2002.

Some of the private-sector industries that make competitive products, meanwhile, have been in decline. Textile and office-furniture manufacturers have been hit the hardest, and they have been frustrated in their attempts to secure or keep government contracts that would help protect them from the broader economic downturn caused in part by the loss of jobs to overseas companies. FPI "decimated the textile business," Hoekstra said. He added that prison labor has also undercut companies that make signs for federal agencies.

The toll on the office-furniture business is particularly frustrating to Hoekstra, who was a furniture executive for Herman Miller before he was elected to Congress in 1992. His district is also home to two more of the nation's biggest manufacturers. As FPI has grown 25 percent, Hoekstra said, the office-furniture industry has declined 30 to 40 percent. "I've got people who make perfectly good office furniture who would love to compete for this business [but] who are laid off."

Larry Allen, executive vice president of the Coalition for Government Procurement, argued that FPI "doesn't really need mandatory-source protection in order to be successful," and he cited the program's role in manufacturing certain goods for the military as evidence. FPI, he said, has not been the mandatory source in that arena for four years, yet it still gets the work.

"This is no longer a prisoner work program," said Allen, whose coalition thus far has failed to convince a federal court that FPI has overstepped its statutory authority in producing and selling office furniture. "It really has become a sole-source government procurement program."

Years of congressional debate have generated anecdote after anecdote about companies that have fought FPI for existing or potential business. Sometimes firms have prevailed, typically after vigorous lobbying campaigns and congressional intervention. A few years ago, for instance, Glamour Glove of Long Island, N.Y., won the right to make gloves for the military. But more often than not, according to critics, companies must trim their payrolls or close shop entirely because of business lost to FPI.

During House floor debate last year, Rep. Charlie Norwood, R-Ga., recounted one of the more ironic tales about FPI. Habersham Metal Products, a company in his district, saw its work for one project cut from three months to three weeks because FPI snagged a large part of the contract. The work order called for the construction of prison doors.

"This is not an isolated incident," Norwood said. "It has happened in this company alone many other times. But beyond money and the employment concerns, where in the world is the logic for allowing inmates to build their own prison doors? It makes no sense."

Such stories have furthered the push for reform, with the U.S. Chamber of Commerce, the AFL-CIO, and the Federal Managers Association, which represents managers and supervisors in the federal government, allied against FPI. The chamber included the final floor vote on the FPI reform bill, which the House passed on a 350-65 vote, in its scorecard of how well lawmakers supported the business community in 2003.

Congress later included in the omnibus spending package for fiscal 2004 a provision that temporarily waives FPI's mandatory-source authority. As a result, federal entities cannot buy UNICOR goods or services unless UNICOR offers "the best value." The language extends to civilian agencies a rule that was imposed on the Defense Department in 2002.

Brad Miller, the manager of communications and government affairs for the Business and Institutional Furniture Manufacturer's Association, said FPI's actions have forced such steps. "We find ourselves today with a prison-factory program where the bureaucrats running it may have learned more than they have taught from some of those they imprison -- more about strong-arming their way through life than meeting the needs of customers with quality service."

Jobs and Attitudes

Opponents of legislative mandates on FPI emphasize the program's benefits: improved prison security; lower rates of repeat criminal behavior by UNICOR workers who leave prison with new skills; jobs for small businesses that provide the raw materials for FPI products, and for the industry experts who oversee and train the prisoners; and the payment of victim restitution, fines, and even child support from the wages of FPI workers, who earn from 23 cents to $1.15 an hour.

FPI jobs are so popular with inmates that factories tend to have long waiting lists. Allenwood has three separate factories, and all of them have far more applicants than jobs. In mid-March, the factory at Allenwood's low-security prison employed 125 prisoners and had nearly twice that number seeking work there. The medium-security prison employed 225 inmates, with 134 on the waiting list. And 129 inmates wanted jobs at the high-security penitentiary, which employed 160 at the time.

For prisoners, FPI work is more desirable than other jobs, which at times are designed just to keep them occupied. For example, 60 men -- instead of five to 10 -- are sometimes assigned to landscape the compound. "The inmates within UNICOR pretty much behave," Dubaskas said, "because if they don't, they lose the job."

FPI is also self-sufficient. The money for both raw materials and the wages of inmates and their supervisors comes solely from sales. "It's a program that works, a program that reduces crime and pays for itself," said Rep. Bobby Scott, D-Va.

Scott downplayed FPI's effect on the private sector. "In some applications, the implementation of mandatory source hasn't been perfect," he said, but the impact involves a few million dollars in industries that generate billions in sales.

He added that FPI is not the only competition for U.S. firms in sectors such as textiles. "Chances are that somebody else is going to get the work anyway.... You can't blame prison industries.... You can't blame a couple of thousand [prison jobs] for hundreds of thousands of jobs lost."

Philip W. Glover, president of the Council of Prison Locals, said that the criticisms of FPI are overblown. He called the reform effort a "labor of love" for former furniture executive Hoekstra. "The reform initiative is really more about perception than it is about fact," Glover said.

He also dismissed the argument that FPI has cornered the market for government procurement. "Our program takes up one-quarter of 1 percent of federal procurement," Glover said. The goal of his group, which represents unionized correctional officers and others who work in prisons, is to employ as many laborers as possible without hurting private industry, he said.

FPI tries to be involved in as many product lines as possible and actually loses money on many of those fronts, Glover said. "We never worried about being in the red in certain areas; we just sort of compensated for it."

Glover and Rep. Frank Wolf, R-Va., warn that dramatic changes in the business structure of the prison labor system could have dire consequences. Glover noted that the rule requiring Defense to get the best value for goods, even if that means not contracting jobs to FPI, has forced UNICOR to idle some 2,000 jobs. The new rule that applies that approach to civilian agencies this fiscal year will worsen the impact, he said. "We're going to be in a crunch. Our feeling is that somebody's going to get hurt" in the prison system.

"If there's no work," Wolf added, "it's very dangerous for a prison guard.... If you don't have work, you lose control of the prison."

But Steve Schwalb, FPI's chief operating officer, is not as pessimistic. Some layoffs are possible in the production capacity for office furniture, he said, but he does not expect anywhere near the number of job cuts that FPI saw from fewer contracts with Defense. "I'm not as concerned about the impact being replicated. I think it will be smoother this time," Schwalb said.

Reform on the Inside

The Bush administration has refused to take a stand on legislative reform efforts -- a decision that Wolf has criticized as "morally reprehensible" -- but FPI is pursuing reforms on its own. FPI board Chairman Kenneth R. Rocks, who is national vice president of the Fraternal Order of Police, said, "We are very much cognizant of the manufacturing business in the United States dwindling" and want to strike a balance.

Rocks cited recent changes in two manufacturing sectors that seem to trigger the loudest outcry: textiles and office furniture. FPI has reduced its sales in office furniture to about $150 million, down from a high of $250 million, and has removed gloves from its list of clothing products for the Defense Department. The latter decision lets the three remaining private firms compete for the glove business. "What we have to do," Rocks said, "is look to other methods and means to carry out our mission."

One place where FPI is looking to expand is in the services sector. "We've seen for a long time the need to move away more and more from strictly products or predominantly products," Schwalb said. State-based prison industries began offering services such as data processing and computer recycling about 20 years ago. Schwalb said that the states' success in those areas led him to pitch the idea to FPI's board about six years ago. The services side of FPI's business has soared since then.

UNICOR had no computer-recycling factories five years ago but now has six. Inmates who work at those units get training to diagnose problems in donated computers, and the parts are then sold to small businesses. The goal is to keep the product from ending up in landfills, Schwalb said, and "it takes a lot of labor" to keep that from happening.

The foray into services, a rapidly expanding sector of the global economy, has sparked new criticisms of FPI on two points: The law that created the program authorized FPI to produce only goods, and it authorized sales of those goods only to the government. FPI is now selling services to the private sector.

Schwalb said a legal opinion from the Justice Department concluded that the law is silent on the issue of services and thus does not prohibit FPI's involvement. But he also noted that FPI must compete for such work because the mandatory-source rule does not apply, and he said the board limited FPI's role to the "repatriation" of U.S. private-sector jobs lost to other countries. Ultimately, Schwalb added, the new work returns jobs to the United States, produces work for inmates who otherwise might cause trouble in prison, and creates jobs for supervisors.

Glover said one contract to recycle parts for Dell Computer brought jobs to the United States that had been done in the Philippines until about two years ago. The contract also led to new runs for United Parcel Service and Roadway Express. Such "peripheral jobs" represent real economic growth, he said. "That's what I think people are missing in this whole thing."

The same potential exists in the market for goods, Rep. Wolf said. Citing the production of televisions as an example, he said Congress should change the rules governing FPI to try to reclaim jobs in long-dead U.S. industries. "You would in essence be repatriating jobs ... and developing high-tech skills among men in prison," who would later take those skills into private industry, he said. "Imagine what it would do for the good of this country. We could create jobs here."

Rep. Scott touted a third potential business front for FPI: Let prisoners work for charities like Habitat for Humanity, and have Congress appropriate the money to cover costs. But, he acknowledged, "the only problem is, we may not appropriate the money."

Rocks is wary of charity-related ventures for another reason, and his view reflects the complicated reality of Federal Prison Industries. "We're just creating another entity where we could be subject to more criticisms," he said, "and I'd rather deal with one controversy at a time."

The Fruits of Prison Labor

Congress created the Federal Prison Industries in 1934 and made it the "mandatory source" for federal entities. By the 1980s, the program's sales were soaring, making FPI a serious competitor with private-sector industries.

Federal Prison Industries' Growth
Year	Number of Factories	Sales (in millions)	FPI Workers	Total Inmates	Product Groups
1985	71	$238.9	9,995	36,042	4
1990	80	343.2	13,724	57,331	5
1995	97	459.1	16,780	90,159	5
2000	105	546.3	21,688	128,122	5
2001	106	583.5	22,560	156,572	8
2002	111	678.7	21,778	163,436	8
2003	100	666.8	20,274	172,785	8

Source: Federal Bureau of Prisons

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Agency watchdogs need to be watched, critics say

K. Daniel Glover — Fri, 31 Oct 2003 00:00:00 -0500

Deep within the inner sanctums of the federal bureaucracy, a cadre of civil servants some 11,000 strong labors largely unknown. They are the watchdogs of government, and although their mission has expanded in recent years, their primary watchwords remain "waste, fraud, and abuse." They are the inspectors general, known as the IGs.

The IGs see themselves as "agents of positive change" and the guardians of "good government," and many observers agree. The people in the government and in the private sector who are on the receiving end of the IGs' audits and investigations do not always share that view, however. Even some who support the IG community in theory see some problems.

So as the IGs last month celebrated the 25th anniversary of the Inspector General Act, earning a brief visit with President Bush, accolades from Congress, and a series of interviews on C-SPAN, officials began to debate anew an oversight idea that has sparked admiration in some circles and fear, or even revilement, in others.

"The IG concept has grown and evolved," said Richard P. Kusserow, who was an inspector general at the Health and Human Services Department during the Reagan administration and is now the president of Strategic Management Systems. "It is different than it was intended to be 25 years ago," and he said he is not sure yet whether the changes have been good or bad. "I prefer having been an IG when I was," he added.

Expansion and Success

Congress created the first Office of Inspector General for the then-Health, Education, and Welfare Department in 1976, in response to Medicaid fraud. By 1978, congressional interest in appointing a wider corps of investigators led to the overwhelming approval of the IG Act.

The statute created IG offices in 12 departments and agencies, with the inspectors general to be chosen by the president and confirmed by the Senate. Since then, it has been broadened to encompass all of the Cabinet departments. In 1988, Congress also created IG offices for 33 smaller agencies, but left the job of naming those IGs exclusively with the agency chiefs. Nearly 60 executive branch departments and agencies now have inspector general offices.

Congress has also expanded the job description. IGs now address matters that cross agency lines, such as the use of government purchase cards, and they work in areas such as computer security and the oversight of chief financial officers in agencies that lack IG offices. The Bush administration has gone further and sought the IGs' input on implementing the President's Management Agenda, which is focused on getting the taxpayers more for their money.

The annual reports that the inspectors general submit to the president highlight the successes of the IGs' work. From fiscal 1995 through fiscal 2002, the reports show, the IGs proposed about $183.8 billion in savings, recovered some $24.8 billion through their investigations, and successfully prosecuted an estimated 93,300 cases.

And more successes are reported regularly, both externally and internally. Education Department IG Jack Higgins, for instance, said his office last month won an indictment in New York related to identity theft aimed at defrauding the federal student-loan program. The scheme involved about 2,300 names, he said, and it could have cost the government $44 million.

And Transportation Department IG Kenneth M. Mead said his office has highlighted problems in Amtrak, highway safety, and "runway incursions" involving aircraft landings, among other things. "You need somebody inside that's going to speak truth to power," he said, adding, "You're in the belly of the beast ... and it is not difficult to find areas where programs can be improved."

Shepherds or Sheepdogs?

People outside the IG community, however, and some who've been on the inside, see room for improvement in the IG program.

Stephen Ryan, a lawyer at Manatt Phelps Phillips, helped then-Senate Governmental Affairs Committee Chairman John Glenn, D-Ohio, expand the reach of the IG Act in 1988, and he still defends the watchdog concept. But as someone who now represents private-sector clients who often have to answer to IGs, he thinks of the phrase coined by the Roman author Juvenal: Sed quis custodiet ipsos custodes, which roughly translates to, "Who will guard the guards?"

Ryan complained that IGs sometimes run unsupervised probes that become "interminably long and lose their way." In such cases, he added, the inspectors have a vested interest in concluding the investigations positively, "and you can get dangerous results." He also said that too many IGs today are "freelancing in the policy arena" by "pushing their conception of what's good public policy" as opposed to investigating. IGs need to be the sheepdogs running alongside their flocks rather than the shepherds leading the way, he argued.

Former HHS Inspector General Kusserow voiced a similar complaint about today's IGs. "Policy-making belongs to the administration; it doesn't belong to the IGs," he said, and then admonished his successors to "stay out of the political game; stay in the facts and evidence."

But Kusserow also argued that IGs really are "not players anymore," largely for two reasons: Republicans in the House do not know how to use the IGs to draw attention to problems in federal programs; and administrations have been so focused on achieving diversity in the appointment process that the IGs have gotten little attention.

Bob Stone, a key aide to then-Vice President Gore on "reinventing government," and now a partner at the Public Strategies Group, is one of the harshest critics of the IG community. He dubbed the IGs "junkyard dogs" this year in his book, "Confessions of a Civil Servant: Lessons in Changing America's Government and Military."

"The Inspector General Act is fatally flawed, and all the changes in management theory in the past 25 years have moved in the opposite direction," he said in a recent interview. While Stone agreed that managers of federal programs should be held accountable, he added that inspectors general lack the expertise to be second-guessing those professionals.

He cited at least two major problems with the act: the emphasis on eliminating "waste," and the ability of whistleblowers, including those who may simply want to get even with bosses they dislike, to lodge anonymous complaints. IGs have an incentive "to label people as wasteful," Stone said, because they report their numbers on waste to Congress twice a year. And he described the atmosphere of "secret accusations" as "just poisonous."

Brookings Institution fellow Paul C. Light-who literally wrote the book on IGs, "Monitoring Government: Inspectors General and the Search for Accountability," back in 1993-agrees that the inherent tension between IGs and the departments they investigate can be troublesome. But unlike Stone, Light criticizes the agency heads. "The executive branch never liked the IGs ... and still doesn't like the IGs," he argued in an interview.

Light said he has seen "a slow but steady politicization of the IGs over the past 20 years," but he took particular aim at the Bush administration. He criticized the administration both for dismissing IGs at the National Aeronautics and Space Administration and some other agencies upon taking office, and for hiring Janet Rehnquist, the daughter of Supreme Court Chief Justice William H. Rehnquist, as the inspector general at HHS.

The former decision had a "chilling effect" on the IGs, Light said, and the latter was "quite a dramatic signal," because it showed that the administration did not want a strong inspector general at HHS. Before Rehnquist resigned under pressure earlier this year, he said, she tried to dismantle "the premier organization" in the IG community by firing numerous staffers with institutional memory. (Rehnquist declined to be interviewed for this story.)

Both the White House and the IG community dispute such charges.

Clay Johnson, the deputy director for management at the White House Office of Management and Budget, said the IG firings at the start of the administration were not designed to deter criticisms but instead reflected concerns that those IGs focused too much on finding wrongs after they occurred rather than on preventing them.

"I have been pleased with the support we have received from the administration, both in this administration and the last administration," said Justice Department IG Glenn Fine. Gaston L. Gianni Jr. is inspector general of the Federal Deposit Insurance Corporation and represents top-level IGs as vice chairman of the President's Council on Integrity and Efficiency. He praised Johnson in particular and said, "He has paid attention to us; he has attended our meetings; and he has shared what the president is trying to accomplish."

The debate about the merits of the IG system, both as envisioned and as implemented, may lead to changes in the law, and the IGs and others have begun to push pet reforms. A House Government Reform subcommittee held a hearing on the IGs on Oct. 8, and Rep. Jim Cooper, D-Tenn., touted a seven-year term for all IGs and removal from their jobs only for "cause," among other reforms.

The IGs' top priority is to give the force of law to the two councils for the IG community that currently exist only by executive order. They also would like more personnel flexibility, such as early buyouts for older IG agents who could be succeeded by those with more current technical skills.

"This is the starting point" of debate, Transportation IG Mead said. "This law has pretty much stood the test of time.... It's a good concept, and, sure, it can be improved."

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Bill seeks to open info pipeline between feds, 'first responders'

K. Daniel Glover — Fri, 01 Mar 2002 00:00:00 -0500

Subcommittee Chairman Saxby Chambliss, R-Ga., and ranking Democrat Jane Harman of California made their proposal after emergency personnel who responded to the Sept. 11 terrorist attacks in New York and former New York Mayor Rudolph Giuliani testified before the panel last October.

"We cannot achieve top levels of homeland security if we cannot share information," Chambliss said in a statement on the new bill, H.R. 3825. "Our first step in combating the war on terrorism and preventing future attacks of all kinds is establishing solid standards and methods of communicating between federal, state and local governing entities."

The legislation would require federal agencies such as the FBI and state and local emergency personnel to share information with each other. It calls for using existing technology that declassifies data by stripping sensitive information from it, and for sharing the information through existing networks such as the National Law Enforcement Telecommunications System.

Agencies would have six months to develop the procedures for sharing information. And the number of background checks of state and local personnel would be increased to facilitate the sharing of information that cannot be declassified.

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Lawmakers' emphasis on homeland defense continues

K. Daniel Glover — Mon, 10 Dec 2001 00:00:00 -0500

Rep. Clay Shaw, R-Fla., introduced a bill, H.R. 3437, that would require the creation of a federal port-security task force and local seaport security committees overseen by the Coast Guard. The goals of the bill include investments in "non-intrusive" security technology and better communication among law enforcement agencies.

In the Senate, two lawmakers filed bills on bioterrorism. A comprehensive bill includes language that would require a federal Internet site to provide information on bioterrorism, and that would enhance grant programs in an effort to get more state and local health agencies to use e-mail and high-speed Internet connections. The other bill, S. 1764, would provide tax and legal incentives to biotechnology firms that increase research and investment in counter-terrorism products.

House and Senate companion bills, meanwhile, would give federal agencies some purchasing flexibility. The measures, S. 1780 and H.R. 3426, would streamline the procurement process when it involves buying technology or other goods for use in humanitarian or peacekeeping operations, or for preventing cyberattacks or other types of terrorism.

Four separate bills seek to address the needs of state and local agencies involved in policing and emergency response.

One measure, H.R. 3397, would require the FCC to free designated airwaves for use by the public-safety community by 2006. And a second bill, H.R. 3435, would authorize grants to the local police, fire and emergency personnel who typically are the "first responders" to terrorism and other emergencies.

The other two virtually identical bills, S. 1763 and S. 1787, represent Senate Democrats' efforts to improve law enforcement in rural areas. Among other things, the bills would authorize money for: grants to local police agencies for improving their wireless communications capacity and buying computers and other technology; grants for improving emergency 911 services; and funds for a Rural Policing Institute to train local police on computer crimes and other topics.

Other technology-related bills introduced last week included: H.R. 3394, which would authorize nearly $880 million over five years to create new cyber-security programs within the National Science Foundation and the National Institute of Standards and Technology.

H.R. 3400, which would authorize nearly $7 billion over five years to increase information technology research at six federal agencies. The House Science Committee approved both H.R. 3400 and H.R. 3394 by voice vote last Thursday.

H.R. 3422 would create a Congressional Trade Office to provide lawmakers with independent, nonpartisan analysis of information on trade. Senate Finance Committee Chairman Max Baucus, D-Mont., introduced similar bills, S. 274 and S. 1347, earlier this year and may seek to include such language in trade-negotiating legislation when his panel votes on the issue this week.

S. 1788, which would give the FBI access to the National Instant Criminal Background Check System for certain investigations.

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