Sec. 401 Short title
This title may be cited as the “Congressional Subpoena Compliance and Enforcement Act”.
Division B — Restoring Checks and Balances, Accountability, and Transparency
B Restoring Checks and Balances, Accountability, and Transparency
IV Enforcement of Congressional Subpoenas
Sec. 402 Findings
The Congress finds as follows:
As the Supreme Court has repeatedly affirmed, including in its July 9, 2020, holding in Trump v. Mazars, Congress’ “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function”. Congress’ power to obtain information, including through the issuance of subpoenas and the enforcement of such subpoenas, is “broad and indispensable”.
Congress “suffers a concrete and particularized injury when denied the opportunity to obtain information necessary” to the exercise of its constitutional functions, as the U.S. Court of Appeals for the District of Columbia Circuit correctly recognized in its August 7, 2020, en banc decision in Committee on the Judiciary of the U.S. House of Representatives v. McGahn.
Accordingly, the Constitution secures to each House of Congress an inherent right to enforce its subpoenas in court. Explicit statutory authorization is not required to secure such a right of action, and the contrary holding by a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit in McGahn, entered on August 31, 2020, was in error.
Sec. 403 Enforcement of congressional subpoenas
In general— Chapter 85 of title 28, United States Code, is amended by inserting after section 1365 the following:
“1365a. Congressional actions against subpoena recipients
“(a) Cause of action—The United States House of Representatives, the United States Senate, or a committee or subcommittee thereof, may bring a civil action against the recipient of a subpoena issued by a congressional committee or subcommittee to enforce compliance with the subpoena.
“(b) Special rules—In any civil action described in subsection (a), the following rules shall apply:
“(1) The action may be filed in a United States district court of competent jurisdiction.
“(2) Notwithstanding section 1657(a), it shall be the duty of every court of the United States to expedite to the greatest possible extent the disposition of any such action and appeal. Upon a showing by the plaintiff of undue delay, other irreparable harm, or good cause, a court to which an appeal of the action may be taken shall issue any necessary and appropriate writs and orders to ensure compliance with this paragraph.
“(3) If a three-judge court is expressly requested by the plaintiff in the initial pleading, the action shall be heard by a three-judge court convened pursuant to section 2284, and shall be reviewable only by appeal directly to the Supreme Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within 10 days, and the filing of a jurisdictional statement within 30 days, of the entry of the final decision.
“(c) Penalties
“(1) Cases involving government agencies
“(A) In general—The court may impose monetary penalties directly against each head of a Government agency and the head of each component thereof held to have knowingly failed to comply with any part of a congressional subpoena.
“(B) Prohibition on use of government funds—No appropriated funds, funds provided from any accounts in the Treasury, funds derived from the collection of fees, or other Government funds shall be used to pay any monetary penalty imposed by the court pursuant to this paragraph.
“(2) Legal fees—In addition to any other penalties or sanctions, the court shall require that any defendant, other than a Government agency, held to have willfully failed to comply with any part of a congressional subpoena, pay a penalty in an amount equal to that party’s legal fees, including attorney’s fees, litigation expenses, and other costs. If such defendant if is an officer or employee of a Government agency, such fees may be paid from funds appropriated to pay the salary of the defendant.
“(d) Waiver—Any ground for noncompliance asserted by the recipient of a congressional subpoena shall be deemed to have been waived as to any particular information withheld from production if the court finds that the recipient failed in a timely manner to comply with the requirements of section 105(b) of the Revised Statutes of the United States with respect to such information.
“(e) Rules of procedure—The Supreme Court and the Judicial Conference of the United States shall prescribe rules of procedure to ensure the expeditious treatment of actions described in subsection (a). Such rules shall be prescribed and submitted to the Congress pursuant to sections 2072, 2073, and 2074. This shall include procedures for expeditiously considering any assertion of constitutional or Federal statutory privilege made in connection with testimony by any recipient of a subpoena from a congressional committee or subcommittee. The Supreme Court shall transmit such rules to Congress within 6 months after the effective date of this section and then pursuant to section 2074 thereafter.
“(f) Definition—For purposes of this section, the term Government agency means any office or entity described in section 105 and 106 of title 3, an executive department listed in section 101 of title 5, an independent establishment, commission, board, bureau, division, or office in the executive branch, or other agency or instrumentality of the Federal Government, including wholly or partly owned Government corporations.”
Clerical amendment— The table of sections for chapter 85 of title 28, United States Code, is amended by inserting after the item relating to section 1365 the following:
Sec. 404 Compliance with congressional subpoenas
In general— Chapter 7 of title II of the Revised Statutes of the United States (2 U.S.C. 191 et seq.) is amended—
by adding at the end the following:
“105. Response to congressional subpoenas
“(a) Subpoena by congressional committee—Any recipient of any subpoena from a congressional committee or subcommittee shall appear and testify, produce, or otherwise disclose information in a manner consistent with the subpoena and this section.
“(b) Failure To produce information
“(1) Grounds for withholding information—Unless required by the Constitution or by Federal statute, no claim of privilege or protection from disclosure shall be a ground for withholding information responsive to the subpoena or required by this section.
“(2) Identification of information withheld—In the case of information that is withheld, in whole or in part, by the subpoena recipient, the subpoena recipient shall, without delay provide a log containing the following:
“(A) An express assertion and description of the ground asserted for withholding the information.
“(B) The type of information.
“(C) The general subject matter.
“(D) The date, author, and addressee.
“(E) The relationship of the author and addressee to each other.
“(F) The custodian of the information.
“(G) Any other descriptive information that may be produced or disclosed regarding the information that will enable the congressional committee or subcommittee issuing the subpoena to assess the ground asserted for withholding the information.
“(c) Definition—For purposes of this section the term information includes any books, papers, documents, data, or other objects requested in a subpoena issued by a congressional committee or subcommittee.”
in section 104, by striking the period at the end and inserting the following:
Clerical amendment— The table of contents for chapter 7 of title II of the Revised Statutes of the United States is amended by adding at the end the following:
Sec. 405 Rule of construction
Nothing in this title may be interpreted to limit or constrain Congress’ inherent authority or foreclose any other means for enforcing compliance with congressional subpoenas, nor may anything in this title be interpreted to establish or recognize any ground for noncompliance with a congressional subpoena.
V Reasserting Congressional Power of the Purse
Sec. 500 Short title
This title may be cited as the “Congressional Power of the Purse Act”.
A Strengthening Congressional Control and Review To Prevent Impoundment
Sec. 501 Strengthening congressional control
In general— The Impoundment Control Act of 1974 (2 U.S.C. 681 et seq.) is amended by adding at the end the following:
“1018. Prudent obligation of budget authority and specific requirements for expiring budget authority
“(a) Special message requirement—With respect to budget authority proposed to be rescinded or that is set to be reserved or proposed to be deferred in a special message transmitted under section 1012 or 1013, such budget authority—
“(1) shall be made available for obligation in sufficient time to be prudently obligated as required under section 1012(b) or 1013; and
“(2) may not be deferred or otherwise withheld from obligation during the 90-day period before the expiration of the period of availability of such budget authority, including, if applicable, the 90-day period before the expiration of an initial period of availability for which such budget authority was provided.
“(b) Administrative requirement—With respect to an apportionment of an appropriation (as that term is defined in section 1511 of title 31, United States Code) made pursuant to section 1512 of such title, an appropriation shall be apportioned—
“(1) to make available all amounts for obligation in sufficient time to be prudently obligated; and
“(2) to make available all amounts for obligation, without precondition or limitation (including footnotes) that shall be met prior to obligation, not later than 90 days before the expiration of the period of availability of such appropriation, including, if applicable, 90 days before the expiration of an initial period of availability for which such appropriation was provided.”
Clerical amendment— The table of contents of the Congressional Budget and Impoundment Control Act of 1974 set forth in section 1(b) of such Act is amended by adding after the item relating to section 1017 the following:
Sec. 502 Strengthening congressional review
In general— The Impoundment Control Act of 1974 (2 U.S.C. 681 et seq.), as amended by section 501(a), is further amended by adding at the end the following:
“1019. Reporting
“(a) Apportionment of appropriations
“(1) In general—Not later than 90 days after the date of enactment of this section, the Office of Management and Budget shall complete implementation of an automated system to post each document apportioning an appropriation, pursuant to section 1513(b) of title 31, United States Code, including any associated footnotes, in a format that qualifies each such document as an Open Government Data Asset (as defined in section 3502 of title 44, United States Code), not later than 2 business days after the date of approval of such apportionment, and shall place on such website each document apportioning an appropriation, pursuant to such section 1513(b), including any associated footnotes, already approved for the fiscal year, and shall report the date of completion of such requirements to the Committees on the Budget and Appropriations of the House of Representatives and Senate.
“(2) Explanatory statement—Each document apportioning an appropriation posted on a publicly accessible website under paragraph (1) shall also include a written explanation by the official approving each such apportionment (pursuant to section 1513(b) of title 31, United States Code) of the rationale for the apportionment schedule and for any footnotes.
“(3) Special process for transmitting classified documentation to the congress—The Office of Management and Budget or the applicable department or agency shall make available classified documentation relating to apportionment to appropriate congressional committees on a schedule to be determined by each such committee.
“(4) Department and agency report—Each department or agency shall notify the Committees on the Budget and Appropriations of the House of Representatives and the Senate and any other appropriate congressional committees if—
“(A) an apportionment is not made in the required time period provided in section 1513(b) of title 31, United States Code;
“(B) an approved apportionment received by the department or agency conditions the availability of an appropriation on further action; or
“(C) an approved apportionment received by the department or agency may hinder the prudent obligation of such appropriation or the execution of a program, project, or activity by such department or agency,
“(b) Approving officials
“(1) Delegation of authority—Not later than 15 days after the date of enactment of this section, any delegation of apportionment authority pursuant to section 1513(b) of title 31, United States Code that is in effect as of such date shall be submitted for publication in the Federal Register. Any delegation of such apportionment authority after the date of enactment of this section shall, on the date of such delegation, be submitted for publication in the Federal Register. The Office of Management and Budget shall publish such delegations in a format that qualifies such publications as an Open Government Data Asset (as defined in section 3502 of title 44, United States Code) on a public internet website, which shall be continuously updated with the position of each Federal officer or employee to whom apportionment authority has been delegated.
“(2) Report to Congress—Not later than 5 days after any change in the position of the approving official with respect to such delegated apportionment authority for any account is made, the Office shall submit a report to the Congress explaining why such change was made.”
Clerical amendment— The table of contents of the Congressional Budget and Impoundment Control Act of 1974 set forth in section 1(b) of such Act, as amended by section 501(b), is further amended by adding after the item relating to section 1018 the following:
Sec. 503 Updated authorities for and reporting by the Comptroller General
Section 1015 of the Impoundment Control Act of 1974 (2 U.S.C. 686) is amended—
in subsection (a), in the matter following paragraph (2), by striking the last sentence; and
by adding at the end the following:
“(c) Review
“(1) In general—The Comptroller General shall review compliance with this part and shall submit to the Committees on the Budget, Appropriations, and Oversight and Reform of the House of Representatives, the Committees on the Budget, Appropriations, and Homeland Security and Governmental Affairs of the Senate, and any other appropriate congressional committee of the House of Representatives and Senate a report, and any relevant information related to the report, on any noncompliance with this part.
“(2) Information, documentation, and views—The President or the head of the relevant department or agency of the United States shall provide information, documentation, and views to the Comptroller General, as is determined by the Comptroller General to be necessary to determine such compliance, not later than 20 days after the date on which the request from the Comptroller General is received, or if the Comptroller General determines that a shorter or longer period is appropriate based on the specific circumstances, within such shorter or longer period.
“(3) Access—To carry out the responsibilities of this part, the Comptroller General shall also have access to interview the officers, employees, contractors, and other agents and representatives of a department, agency, or office of the United States at any reasonable time as the Comptroller General may request.”
Section 1001 of the Impoundment Control Act of 1974 (2 U.S.C. 681) is amended—
in paragraph (3), by striking the “or” at the end of the paragraph;
in paragraph (4), by striking the period at the end and inserting a semicolon; and
by adding at the end the following:
“(5) affecting or limiting in any way the authorities provided to the Comptroller General under chapter 7 of title 31, United States Code.”
Sec. 504 Advance congressional notification and litigation
Section 1016 of the Impoundment Control Act of 1974 (2 U.S.C. 687) is amended to read as follows:
“1016. Suits by Comptroller General
“If, under this chapter, budget authority is required to be made available for obligation and such budget authority is not made available for obligation or information, documentation, views, or access are required to be produced and such information, documentation, views, or access are not produced, the Comptroller General is expressly empowered, through attorneys of their own selection, to bring a civil action in the United States District Court for the District of Columbia to require such budget authority to be made available for obligation or such information, documentation, views, or access to be produced, and such court is expressly empowered to enter in such civil action, against any department, agency, officer, or employee of the United States, any decree, judgment, or order which may be necessary or appropriate to make such budget authority available for obligation or compel production of such information, documentation, views, or access. No civil action shall be brought by the Comptroller General to require budget authority be made available under this section until the expiration of 15 calendar days following the date on which an explanatory statement by the Comptroller General of the circumstances giving rise to the action contemplated is filed with the Speaker of the House of Representatives and the President of the Senate, except that expiration of such period shall not be required if the Comptroller General finds (and incorporates the finding in the explanatory statement filed) that the delay would be contrary to the public interest.”
Sec. 505 Penalties for failure to comply with the Impoundment Control Act of 1974
In general— The Impoundment Control Act of 1974 (2 U.S.C. 681 et seq.), as amended by section 502(a), is further amended by adding at the end the following:
“1020. Penalties for failure to comply
“(a) Administrative discipline—An officer or employee of the Executive Branch of the United States Government violating this part shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.
“(b) Reporting violations
“(1) In general—In the event of a violation of section 1001, 1012, 1013, or 1018 of this part, or in the case that the Government Accountability Office issues a legal decision concluding that a department, agency, or office of the United States violated this part, the President or the head of the relevant department or agency as the case may be, shall report immediately to Congress all relevant facts and a statement of actions taken. A copy of each report shall also be transmitted to the Comptroller General and the relevant inspector general on the same date the report is transmitted to the Congress.
“(2) Contents—Any such report shall include a summary of the facts pertaining to the violation, the title and Treasury Appropriation Fund Symbol of the appropriation or fund account, the amount involved for each violation, the date on which the violation occurred, the position of any individuals responsible for the violation, a statement of the administrative discipline imposed and any further action taken with respect to any officer or employee involved in the violation, and a statement of any additional action taken to prevent recurrence of the same type of violation. In the case that the Government Accountability Office issues a legal decision concluding that a department, agency, or office of the United States violated this part and the relevant department, agency, or office does not agree that a violation has occurred, the report provided to Congress, the Comptroller General, and relevant inspector general will explain its position.
“(3) Opportunity to respond—If the report identifies the position of any officer or employee as involved in the violation, such officer or employee shall be provided a reasonable opportunity to respond in writing, and any such response shall be appended to the report.”
Clerical amendment— The table of contents of the Congressional Budget and Impoundment Control Act of 1974 set forth in section 1(b) of such Act, as amended by section 502(b), is further amended by adding after the item relating to section 1019 the following:
B Strengthening Transparency and Reporting
1 Funds Management and Reporting to the Congress
Sec. 511 Expired balance reporting in the President’s budget
Section 1105(a) of title 31, United States Code, is amended by adding at the end the following:
“(40) for the budgets for each of fiscal years 2022 through 2026, a report on—
“(A) unobligated expired balances as of the beginning of the current fiscal year and the beginning of each of the preceding 2 fiscal years by agency and the applicable Treasury Appropriation Fund Symbol or fund account; and
“(B) an explanation of expired balances in any Treasury Appropriation Fund Symbol or fund account that exceed the lesser of 5 percent of total appropriations made available for that account or $100,000,000.”
Sec. 512 Cancelled balance reporting in the President’s budget
Section 1105(a) of title 31, United States Code, as amended by section 511, is further amended by adding at the end the following:
“(41) for the budgets for each of fiscal years 2022 through 2026, a report on—
“(A) cancelled balances (pursuant to section 1552(a)) for the preceding 3 fiscal years by agency and Treasury Appropriation Fund Symbol or fund account;
“(B) an explanation of cancelled balances in any Treasury Appropriation Fund Symbol or fund account that exceed the lesser of 5 percent of total appropriations made available for that account or $100,000,000; and
“(C) a tabulation, by Treasury Appropriation Fund Symbol or fund account and appropriation, of all balances of appropriations available for an indefinite period in an appropriation account available for an indefinite period that do not meet the criteria for closure under section 1555, but for which either—
“(i) the head of the agency concerned or the President has determined that the purposes for which the appropriation was made have been carried out; or
“(ii) no disbursement has been made against the appropriation—
“(I) in the prior year and the preceding fiscal year; or
“(II) in the prior year and which the budget estimates zero disbursements in the current year.”
Sec. 513 Lapse in appropriations—Reporting in the President’s budget
Section 1105(a) of title 31, United States Code, as amended by section 512, is further amended by adding at the end the following:
“(42) a report on—
“(A) any obligation or expenditure made by a department or agency affected in whole or in part by any lapse in appropriations of 5 consecutive days or more during the preceding fiscal year; and
“(B)
“(i) with respect to any such obligation or expenditure, the amount so obligated or expended, the account affected, and an explanation of which Antideficiency Act exceptions permitted the department or agency, as the case may be, to incur such obligation or expenditure; and
“(ii) an explanation of any changes in the application of any Antideficiency Act exception for a program, project, or activity from any explanations previously reported on pursuant to this paragraph.”
Sec. 514 Transfer and other repurposing authority reporting in the President’s budget
Section 1105(a) of title 31, United States Code, as amended by section 513, is further amended by adding at the end the following:
“(43) for the budget for fiscal year 2022, a report on—
“(A) any transfer authority or other authority to repurpose appropriations provided in a law other than an appropriation act; and
“(B) with respect to any such authority, the citation to the statute, the list of departments or agencies covered, an explanation of when such authority may be used, and an explanation on any use of such authority in the preceding 3 fiscal years.”
Sec. 515 Authorizing cancellations in indefinite accounts by appropriation
In general— Subchapter IV of chapter 15 of title 31, United States Code, is amended by inserting after section 1555 the following:
“1555a. Cancellation of appropriations available for indefinite periods within an account
“Any remaining balance (whether obligated or unobligated) from an appropriation available for an indefinite period in an appropriation account available for an indefinite period that does not meet the requirements for closure under section 1555 shall be canceled, and thereafter shall not be available for obligation or expenditure for any purpose, if—
“(1) the head of the agency concerned or the President determines that the purposes for which the appropriation was made have been carried out; and
“(2) no disbursement has been made against the appropriation for two consecutive fiscal years.”
Clerical amendment— The table of sections for subchapter IV of chapter 15 of title 31, United States Code, is amended by inserting after the item relating to section 1555 the following:
2 Empowering Congressional Review through Nonpartisan Congressional Agencies and Transparency Initiatives
Sec. 521 Requirement to respond to requests for information from the Government Accountability Office for budget and appropriations law decisions
In general— Subchapter II of chapter 7 of title 31, United States Code, is amended by adding at the end the following:
“722. Requirement to respond to requests for information from the Government Accountability Office for budget and appropriations law decisions
“(a) If an executive agency or the District of Columbia government receives a written request for information, documentation, or views from the Government Accountability Office relating to a decision or opinion on budget or appropriations law, the executive agency or the District of Columbia government shall provide the requested information, documentation, or views not later than 20 days after receiving the written request, unless such written request specifically provides otherwise.
“(b) If an executive agency or the District of Columbia government fails to respond to the request for information, documentation, or views within the time required by this section—
“(1) the Comptroller General shall notify, in writing, the Committee on Oversight and Reform of the House of Representatives, Committee on Homeland Security and Governmental Affairs of the Senate, and any other appropriate congressional committee of the House of Representatives and the Senate of such failure; and
“(2) the Comptroller General is hereby expressly empowered, through attorneys of their own selection, to bring a civil action in the United States District Court for the District of Columbia to require such information, documentation, or views to be produced, and such court is expressly empowered to enter in such civil action, against any department, agency, officer, or employee of the United States, any decree, judgment, or order which may be necessary or appropriate to require such production.
“(c) Nothing in this section shall be construed as affecting or otherwise limiting the authorities provided to the Comptroller General in section 716 of this title.”
Clerical amendment— The table of sections for subchapter II of chapter 7 of title 31, United States Code, is amended by inserting after the item relating to section 721 the following:
Sec. 522 Reporting requirements for Antideficiency Act violations
by striking “If” and inserting “(a) If the Government Accountability Office, an executive agency, or the District of Columbia government determines that”; and
by adding at the end the following:
“(b) Any such report shall include a summary of the facts pertaining to the violation, the title and Treasury Appropriation Fund Symbol of the appropriation or fund account, the amount involved for each violation, the date on which the violation occurred, the position of any officer or employee responsible for the violation, a statement of the administrative discipline imposed and any further action taken with respect to any officer or employee involved in the violation, a statement of any additional action taken to prevent recurrence of the same type of violation, a statement of any determination that the violation was not knowing and willful that has been made by the executive agency or District of Columbia government, and any written response by any officer or employee identified by position as involved in the violation. In the case that the Government Accountability Office issues a legal decision concluding that section 1341(a) or 1342 was violated and the executive agency or District of Columbia government, as applicable, does not agree that a violation has occurred, the report provided to the President, the Congress, and the Comptroller General will explain its position.”
in subsection (b), by striking “If” and inserting “If the Government Accountability Office, an executive agency, or the District of Columbia government determines that”; and
by adding at the end the following:
“(c) Any such report shall include a summary of the facts pertaining to the violation, the title and Treasury Appropriation Fund Symbol of the appropriation or fund account, the amount involved for each violation, the date on which the violation occurred, the position of any officer or employee responsible for the violation, a statement of the administrative discipline imposed and any further action taken with respect to any officer or employee involved in the violation, a statement of any additional action taken to prevent recurrence of the same type of violation, a statement of any determination that the violation was not knowing and willful that has been made by the executive agency or District of Columbia government, and any written response by any officer or employee identified by position as involved in the violation. In the case that the Government Accountability Office issues a legal decision concluding that subsection (a) was violated and the executive agency or District of Columbia government, as applicable, does not agree that a violation has occurred, the report provided to the President, the Congress, and the Comptroller General will explain its position.”
Sec. 523 Department of Justice reporting to Congress for Antideficiency Act violations
by striking “An officer” and inserting “(a) An officer”; and
by adding at the end the following:
“(b)
“(1) If an executive agency or the District of Columbia government reports, under section 1351, a violation of section 1341(a) or 1342, the Attorney General shall promptly review such report and investigate to the extent necessary to determine whether there are reasonable grounds to believe that the responsible officer or employee knowingly and willfully violated such section 1341(a) or 1342, as applicable. If the Attorney General determines that there are such reasonable grounds, the Attorney General diligently shall investigate a criminal violation under this section.
“(2) The Attorney General shall submit to Congress and the Comptroller General on or before March 31 of each calendar year an annual report detailing separately for each executive agency and the District of Columbia government—
“(A) the number of reports under section 1351 transmitted to the President during the preceding calendar year;
“(B) the number of reports reviewed in accordance with paragraph (1) during the preceding calendar year;
“(C) without identification of any individual officer or employee of the United States Government or of the District of Columbia government, a description of each investigation undertaken in accordance with paragraph (1) during the preceding calendar year and an explanation of the status of any such investigation; and
“(D) without identification of any individual officer or employee of the United States Government or of the District of Columbia government, an explanation of any update to the status of any review or investigation previously reported pursuant to this subsection.”
by striking “An officer” and inserting “(a) An officer”; and
by adding at the end the following:
“(b)
“(1) If an executive agency or the District of Columbia government reports, under section 1517(b), a violation of section 1517(a), the Attorney General shall promptly review such report and investigate to the extent necessary to determine whether there are reasonable grounds to believe that the responsible officer or employee knowingly and willfully violated such section 1517(a). If the Attorney General determines that there are such reasonable grounds, the Attorney General diligently shall investigate a criminal violation under this section.
“(2) The Attorney General shall submit to Congress and the Comptroller General on or before March 31 of each calendar year an annual report detailing separately for each executive agency and the District of Columbia government—
“(A) the number of reports under section 1517(b) transmitted to the President during the preceding calendar year;
“(B) the number of reports reviewed in accordance with paragraph (1) during the preceding calendar year;
“(C) without identification of any individual officer or employee of the United States Government or of the District of Columbia government, a description of each investigation undertaken in accordance with paragraph (1) during the preceding calendar year and an explanation of the status of any such investigation; and
“(D) without identification of any individual officer or employee of the United States Government or of the District of Columbia government, an explanation of any update to the status of any review or investigation previously reported pursuant to this subsection.”
Sec. 524 Publication of budget or appropriations law opinions of the Department of Justice Office of Legal Counsel
Schedule of publication for final OLC opinions— Each final opinion issued by the Office of Legal Counsel of the Department of Justice relating to section 1301(a), 1341, 1342, 1501, 1502, 1512, 1513, 1515, 1517, or 3302(b) of title 31, United States Code, any provision of the Balanced Budget and Emergency Deficit Control Act of 1985, the Federal Credit Reform Act of 1990, the Impoundment Control Act of 1974, an appropriation Act, continuing resolution, or another provision of law providing or governing appropriations or budget authority shall be made available on its public website in a manner that is searchable, sortable, and downloadable in its entirety as soon as is practicable, but—
not later than 30 days after the opinion is issued or updated if such action takes place on or after the date of enactment of this Act;
not later than 1 year after the date of enactment of this Act for an opinion issued on or after January 20, 1993;
not later than 2 years after the date of enactment of this Act for an opinion issued on or after January 20, 1981, and before or on January 19, 1993;
not later than 3 years after the date of enactment of this Act for an opinion issued on or after January 20, 1969, and before or on January 19, 1981; and
not later than 4 years after the date of enactment of this Act for all other opinions.
Exceptions and limitation on public availability of final OLC opinions—
In general— A final OLC opinion or part thereof may be withheld only to the extent—
information contained in the opinion was—
specifically authorized to be kept secret, under criteria established by an Executive order, in the interest of national defense or foreign policy;
properly classified, including all procedural and marking requirements, pursuant to such Executive order;
the Attorney General determines that the national defense or foreign policy interests protected outweigh the public’s interest in access to the information; and
put through declassification review within the past two years;
information contained in the opinion relates to the appointment of a specific individual not confirmed to Federal office;
information contained in the opinion is specifically exempted from disclosure by statute (other than sections 552 and 552b of title 5, United States Code), if such statute—
requires that the material be withheld in such a manner as to leave no discretion on the issue; or
establishes particular criteria for withholding or refers to particular types of material to be withheld;
information in the opinion includes trade secrets and commercial or financial information obtained from a person and privileged or confidential whose disclosure would likely cause substantial harm to the competitive position of the person from whom the information was obtained;
the President, in his or her sole and nondelegable determination, formally and personally claims in writing that executive privilege prevents the release of the information and disclosure would cause specific identifiable harm to an interest protected by an exception or the disclosure is prohibited by law; or
information in the opinion includes personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Determination to withhold— Any determination under this subsection to withhold information contained in a final OLC opinion shall be made by the Attorney General or a designee of the Attorney General. The determination shall be—
in writing;
made available to the public within the same timeframe as is required of a formal OLC opinion;
sufficiently detailed as to inform the public of what kind of information is being withheld and the reason therefore; and
effective only for a period of 3 years, subject to review and reissuance, with each reissuance made available to the public.
Final opinions— For final OLC opinions for which the text is withheld in full or in substantial part, a detailed unclassified summary of the opinion shall be made available to the public, in the same timeframe as required of the final OLC opinion, that conveys the essence of the opinion, including any interpretations of a statute, the Constitution, or other legal authority. A notation shall be included in any published list of OLC opinions regarding the extent of the withholdings.
No limitation on freedom of information— Nothing in this subsection shall be construed as limiting the availability of information under section 552 of title 5, United States Code or construed as an exemption under paragraph (3) of subsection (b) of such section.
No limitation on relief— A decision by the Attorney General to release or withhold information pursuant to this title shall not preclude any action or relief conferred by statutory or regulatory regime that empowers any person to request or demand the release of information.
Reasonably segregable portions of opinions to be published— Any reasonably segregable portion of an opinion shall be provided after withholding of the portions which are exempt under this section. The amount of information withheld, and the exemption under which the withholding is made, shall be indicated on the released portion of the opinion, unless including that indication would harm an interest protected by the exemption in this paragraph under which the withholding is made. If technically feasible, the amount of the information withheld, and the exemption under which the withholding is made, shall be indicated at the place in the opinion where such withholding is made.
Method of publication— The Attorney General shall publish each final OLC opinion to the extent the law permits, including by publishing the opinions on a publicly accessible website that—
with respect to each opinion—
contains an electronic copy of the opinion, including any transmittal letter associated with the opinion, in an open format that is platform independent and that is available to the public without restrictions;
provides the public the ability to retrieve an opinion, to the extent practicable, through searches based on—
the title of the opinion;
the date of publication or revision; or
the full text of the opinion;
identifies the time and date when the opinion was required to be published, and when the opinion was transmitted for publication; and
provides a permanent means of accessing the opinion electronically;
includes a means for bulk download of all OLC opinions or a selection of opinions retrieved using a text-based search;
provides free access to the opinions, and does not charge a fee, require registration, or impose any other limitation in exchange for access to the website; and
is capable of being upgraded as necessary to carry out the purposes of this section.
Definitions— In this section:
OLC opinion— The term OLC opinion means views on a matter of legal interpretation communicated by the Office of Legal Counsel of the Department of Justice to any other office or agency, or person in an office or agency, in the Executive Branch, including any office in the Department of Justice, the White House, or the Executive Office of the President, and rendered in accordance with sections 511–513 of title 28, United States Code. Where the communication of the legal interpretation takes place verbally, a memorialization of that communication qualifies as an “OLC opinion”.
Final olc opinion— The term final OLC opinion means an OLC opinion that—
the Attorney General, Assistant Attorney General for the Office of Legal Counsel, or a Deputy Assistant General for the Office of Legal Counsel, has determined is final;
government officials or government contractors are relying on or have relied on;
is or has been relied upon to formulate legal guidance; or
is cited in another Office of Legal Counsel opinion.
C Strengthening Congressional Role in and Oversight of Emergency Declarations and Designations
Sec. 531 Improving checks and balances on the use of the National Emergencies Act
Requirements relating to declaration and renewal of national emergencies— Title II of the National Emergencies Act (50 U.S.C. 1621 et seq.) is amended by striking sections 201 and 202 and inserting the following:
“201. Declarations of national emergencies
“(a) Authority To declare national emergencies—With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such a national emergency by proclamation. Such proclamation shall immediately be transmitted to Congress and published in the Federal Register.
“(b) Specification of provisions of law To be exercised and reporting—No powers or authorities made available by statute for use during the period of a national emergency shall be exercised unless and until the President specifies the provisions of law under which the President proposes that the President or other officers will act in—
“(1) a proclamation declaring a national emergency under subsection (a); or
“(2) one or more Executive orders relating to the emergency published in the Federal Register and transmitted to Congress.
“(c) Prohibition on subsequent actions if emergencies not approved
“(1) Subsequent declarations—If a joint resolution of approval is not enacted under section 203 with respect to a national emergency before the expiration of the period described in section 202(a), or with respect to a national emergency proposed to be renewed under section 202(b), the President may not, during the remainder of the term of office of that President, declare a subsequent national emergency under subsection (a) with respect to the same circumstances.
“(2) Exercise of authorities—If a joint resolution of approval is not enacted under section 203 with respect to a power or authority specified by the President under subsection (b) with respect to a national emergency, the President may not, during the remainder of the term of office of that President, exercise that power or authority with respect to that emergency.
“(d) Effect of future laws—No law enacted after the date of the enactment of the Congressional Power of the Purse Act shall supersede this title unless it does so in specific terms, referring to this title, and declaring that the new law supersedes the provisions of this title.
“202. Effective periods of national emergencies
“(a) Temporary effective periods
“(1) In general—Unless previously terminated pursuant to Presidential order or Act of Congress, a declaration of a national emergency shall remain in effect for 20 session days, in the case of the Senate, and 20 legislative days, in the case of the House, from the issuance of the proclamation under section 201(a) (not counting the day on which the proclamation was issued) and shall terminate when that period expires unless there is enacted into law a joint resolution of approval under section 203 with respect to the proclamation.
“(2) Exercise of powers and authorities—Unless the declaration of national emergency has been terminated pursuant to Presidential order or Act of Congress, any emergency power or authority made available under a provision of law specified pursuant to section 201(b) may be exercised pursuant to a declaration of a national emergency for 20 session days, in the case of the Senate, and 20 legislative days, in the case of the House, from the issuance of the proclamation or Executive order (not counting the day on which such proclamation or Executive order was issued). That power or authority may not be exercised after that period expires unless there is enacted into law a joint resolution of approval under section 203 approving—
“(A) the proclamation of the national emergency or the Executive order; and
“(B) the exercise of the power or authority specified by the President in such proclamation or Executive order.
“(b) Renewal of national emergencies—A national emergency declared by the President under section 201(a) or previously renewed under this subsection, and not already terminated pursuant to subsection (a) or (c), shall terminate on the date that is one year after the President transmitted to Congress the proclamation declaring the emergency or the enactment of a previous renewal pursuant to this subsection, unless—
“(1) the President publishes in the Federal Register and transmits to Congress an Executive order renewing the emergency; and
“(2) there is enacted into law a joint resolution of approval renewing the emergency pursuant to section 203 before the termination of the emergency or previous renewal of the emergency.
“(c) Termination of national emergencies
“(1) In general—Any national emergency declared by the President under section 201(a) shall terminate on the earliest of—
“(A) the date provided for in subsection (a);
“(B) the date provided for in subsection (b);
“(C) the date specified in an Act of Congress terminating the emergency; or
“(D) the date specified in a proclamation of the President terminating the emergency.
“(2) Effect of termination—Effective on the date of the termination of a national emergency under paragraph (1)—
“(A) any powers or authorities exercised by reason of the emergency shall cease to be exercised;
“(B) any amounts reprogrammed, repurposed, or transferred under any provision of law with respect to the emergency that remain unobligated on that date shall be returned and made available for the purpose for which such amounts were appropriated; and
“(C) any contracts entered into under any provision of law relating to the emergency shall be terminated.
“203. Review by Congress of national emergencies
“(a) Joint resolution of approval defined—In this section, the term joint resolution of approval means a joint resolution that does not have a preamble and that contains only the following provisions after its resolving clause:
“(1) A provision approving one or more—
“(A) proclamations of national emergency made under section 201(a);
“(B) Executive orders issued under section 201(b)(2); or
“(C) Executive orders issued under section 202(b); or
“(2) a provision approving a list of all or a portion of the provisions of law specified by the President under section 201(b) in the proclamations or Executive orders that are the subject of the joint resolution.
“(b) Procedures for consideration of joint resolutions of approval
“(1) Introduction—After the President transmits to Congress a proclamation declaring a national emergency under section 201(a), or an Executive order specifying emergency powers or authorities under section 201(b)(2) or renewing a national emergency under section 202(b), a joint resolution of approval may be introduced in either House of Congress by any member of that House.
“(2) Committee referral in the senate—In the Senate, a joint resolution of approval shall be referred to the appropriate committee.
“(3) Consideration in senate—In the Senate, the following shall apply:
“(A) Committee referral—A joint resolution of approval shall be referred to the appropriate committee or committees.
“(B) Reporting and discharge—If the committee to which a joint resolution of approval has been referred has not reported it at the end of 10 calendar days after its introduction, that committee shall be discharged from further consideration of the resolution and it shall be placed on the calendar.
“(C) Proceeding to consideration—Notwithstanding Rule XXII of the Standing Rules of the Senate, when a committee to which a joint resolution of approval is referred has reported the resolution, or when that committee is discharged under subparagraph (B) from further consideration of the resolution, it is at any time thereafter in order to move to proceed to the consideration of the joint resolution, and all points of order against the joint resolution (and against the motion to proceed to the consideration of the joint resolution) are waived. The motion to proceed shall be debatable for 4 hours evenly divided between proponents and opponents of the joint resolution of approval. The motion is not subject to amendment, or to a motion to postpone, or to a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of a joint resolution of approval is agreed to, the joint resolution shall remain the unfinished business of the Senate until disposed of.
“(D) Floor consideration—There shall be 10 hours of consideration on a joint resolution of approval, to be divided evenly between the proponents and opponents of the joint resolution. Of that 10 hours, there shall be a total of 2 hours of debate on any debatable motions in connection with the joint resolution, to be divided evenly between the proponents and opponents of the joint resolution.
“(E) Amendments—No amendments shall be in order with respect to a joint resolution of approval in the Senate.
“(F) Motion to reconsider vote on passage—A motion to reconsider a vote on passage of a joint resolution of approval shall not be in order.
“(G) Appeals—Points of order and appeals from the decision of the Presiding Officer shall be decided without debate.
“(4) Consideration in house of representatives—In the House of Representatives, the following shall apply:
“(A) Reporting and discharge—If any committee to which a joint resolution of approval has been referred has not reported it to the House within seven legislative days after the date of referral such committee shall be discharged from further consideration of the joint resolution.
“(B)
“(i) Proceeding to consideration—Beginning on the third legislative day after each committee to which a joint resolution of approval has been referred reports it to the House or has been discharged from further consideration thereof, it shall be in order to move to proceed to consider the joint resolution of approval in the House. All points of order against the motion are waived. Such a motion shall not be in order after the House has disposed of a motion to proceed on the joint resolution of approval. The previous question shall be considered as ordered on the motion to its adoption without intervening motion. The motion shall not be debatable. A motion to reconsider the vote by which the motion is disposed of shall not be in order.
“(ii) Motion—A motion to proceed to the consideration of a joint resolution of approval of an Executive order described in subsection (a)(1) or a list described in subsection (a)(2) shall not be in order prior to the enactment of a joint resolution of approval of the proclamation described in subsection (a)(1) that is the subject of such Executive order or list.
“(C) Consideration—The joint resolution of approval shall be considered as read. All points of order against the joint resolution of approval and against its consideration are waived. The previous question shall be considered as ordered on the joint resolution of approval to final passage without intervening motion except two hours of debate equally divided and controlled by the sponsor of the joint resolution of approval (or a designee) and an opponent. A motion to reconsider the vote on passage of the joint resolution of approval shall not be in order.
“(5) Coordination with action by other house
“(A) In general—If, before the passage by one House of a joint resolution of approval of that House, that House receives from the other House a joint resolution of approval with regard to the same proclamation or Executive order, then the following procedures shall apply:
“(i) The joint resolution of approval of the other House shall not be referred to a committee.
“(ii) With respect to a joint resolution of approval of the House receiving the joint resolution—
“(I) the procedure in that House shall be the same as if no joint resolution of approval had been received from the other House; but
“(II) the vote on passage shall be on the joint resolution of approval of the other House.
“(iii) Upon the failure of passage of the joint resolution of approval of the other House, the question shall immediately occur on passage of the joint resolution of approval of the receiving House.
“(B) Treatment of legislation of other house—If one House fails to introduce a joint resolution of approval under this section, the joint resolution of approval of the other House shall be entitled to expedited floor procedures under this section.
“(C) Application to revenue measures—The provisions of this paragraph shall not apply in the House of Representatives to a joint resolution of approval which is a revenue measure.
“(6) Treatment of veto message—Debate on a veto message in the Senate under this section shall be 1 hour evenly divided between the majority and minority leaders or their designees.
“(c) Rule of construction—The enactment of a joint resolution of approval under this section shall not be interpreted to serve as a grant or modification by Congress of statutory authority for the emergency powers of the President.
“(d) Rules of the house and senate—This section is enacted by Congress—
“(1) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in the House in the case of joint resolutions described in this section, and supersedes other rules only to the extent that it is inconsistent with such other rules; and
“(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.
“204. Exclusion of certain national emergencies invoking International Emergency Economic Powers Act
“(a) In general—In the case of a national emergency described in subsection (b), the provisions of the National Emergencies Act, as in effect on the day before the date of the enactment of the Congressional Power of the Purse Act, shall continue to apply on and after such date of enactment.
“(b) National emergency described
“(1) In general—A national emergency described in this subsection is a national emergency pursuant to which the President proposes to exercise emergency powers or authorities made available under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), supplemented as necessary by a provision of law specified in paragraph (2).
“(2) Provisions of law specified—The provisions of law specified in this paragraph are—
“(A) the United Nations Participation Act of 1945 (22 U.S.C. 287 et seq.);
“(B) section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)); or
“(C) any provision of law that authorizes the implementation, imposition, or enforcement of economic sanctions with respect to a foreign country.
“(c) Effect of additional powers and authorities—Subsection (a) shall not apply to a national emergency or the exercise of emergency powers and authorities pursuant to the national emergency if, in addition to the exercise of emergency powers and authorities described in subsection (b), the President proposes to exercise, pursuant to the national emergency, any emergency powers and authorities under any other provision of law.”
Reporting requirements— Section 401 of the National Emergencies Act (50 U.S.C. 1641) is amended by adding at the end the following:
“(d) Report on emergencies—The President shall transmit to Congress, with any proclamation declaring a national emergency under section 201(a) or any Executive order specifying emergency powers or authorities under section 201(b)(2) or renewing a national emergency under section 202(b), a report, in writing, that includes the following:
“(1) A description of the circumstances necessitating the declaration of a national emergency, the renewal of such an emergency, or the use of a new emergency authority specified in the Executive order, as the case may be.
“(2) The estimated duration of the national emergency, or a statement that the duration of the national emergency cannot reasonably be estimated at the time of transmission of the report.
“(3) A summary of the actions the President or other officers intend to take, including any reprogramming or transfer of funds and any contracts anticipated to be entered into, and the statutory authorities the President and such officers expect to rely on in addressing the national emergency.
“(4) In the case of a renewal of a national emergency, a summary of the actions the President or other officers have taken in the preceding one-year period, including any reprogramming or transfer of funds, to address the emergency.
“(e) Provision of information to congress—The President shall provide to Congress such other information as Congress may request in connection with any national emergency in effect under title II.
“(f) Periodic reports on status of emergencies—If the President declares a national emergency under section 201(a), the President shall, not less frequently than every 3 months for the duration of the emergency, report to Congress on the status of the emergency and the actions the President or other officers have taken and authorities the President and such officers have relied on in addressing the emergency.”
Exclusion of imposition of duties and import quotas from presidential authorities under international emergency economic powers act— Section 203 of the International Emergency Economic Powers Act (50 U.S.C. 1702) is amended—
by redesignating subsection (c) as subsection (d); and
by inserting after subsection (b) the following:
“(c)
“(1) The authority granted to the President by this section does not include the authority to impose duties or tariff-rate quotas or (subject to paragraph (2)) other quotas on articles entering the United States.
“(2) The limitation under paragraph (1) does not prohibit the President from excluding all articles imported from a country from entering the United States.”
Conforming amendments—
National emergencies act— Title III of the National Emergencies Act (50 U.S.C. 1631) is repealed.
International emergency economic powers act— Section 207 of the International Emergency Economic Powers Act (50 U.S.C. 1706) is amended—
in subsection (b), by striking “concurrent resolution” and inserting “joint resolution” each place it appears; and
by adding at the end the following:
“(e) In this section, the term National Emergencies Act means the National Emergencies Act, as in effect on the day before the date of the enactment of the Congressional Power of the Purse Act.”
Effective date; applicability—
In general— Except as provided in paragraph (2), this section and the amendments made by this section shall take effect upon enactment and apply with respect to national emergencies declared under section 201 of the National Emergencies Act on or after that date.
Applicability to renewals of existing emergencies— When a national emergency declared under section 201 of the National Emergencies Act before the date of the enactment of the Congressional Power of the Purse Act would expire or be renewed under section 202(d) of that Act (as in effect on the day before such date of enactment), that national emergency shall be subject to the requirements for renewal under section 202(b) of that Act, as amended by subsection (a).
Sec. 532 National Emergencies Act declaration spending reporting in the President’s budget
Section 1105(a) of title 31, United States Code, as amended by section 514, is further amended by adding at the end the following:
“(44)
“(A) a report on the proposed, planned, and actual obligations and expenditures of funds (for the prior fiscal year, the current fiscal year, and the fiscal years for which the budget is submitted) attributable to the exercise of powers and authorities made available by statute for each national emergency declared by the President, currently active or in effect during the applicable fiscal years.
“(B) Obligations and expenditures contained in the report under subparagraph (A) shall be organized by Treasury Appropriation Fund Symbol or fund account and by program, project, and activity, and include—
“(i) a description of each such program, project, and activity;
“(ii) the authorities under which such funding actions are taken; and
“(iii) the purpose and progress of such obligations and expenditures toward addressing the applicable national emergency.
“(C) Such report shall include, with respect to any transfer, reprogramming, or repurposing of funds to address the applicable national emergency—
“(i) the amount of such transfer, reprogramming, or repurposing;
“(ii) the authority authorizing each such transfer, reprogramming, or repurposing; and
“(iii) a description of programs, projects, and activities affected by such transfer, reprogramming, or repurposing, including by a reduction in funding.”
Sec. 533 Disclosure to Congress of presidential emergency action documents
In general— Not later than 30 days after the conclusion of the process for approval, adoption, or revision of any presidential emergency action document, the President shall submit that document to the appropriate congressional committees.
Documents in existence before date of enactment— Not later than 15 days after the date of the enactment of this Act, the President shall submit to the appropriate congressional committees all presidential emergency action documents in existence before such date of enactment.
Definitions— In this section:
Appropriate congressional committees— The term appropriate congressional committees, with respect to a presidential emergency action document submitted under subsection (a) or (b), means—
the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate;
the Committee on Oversight and Reform, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives; and
any other committee of the Senate or the House of Representatives with jurisdiction over the subject matter addressed in the presidential emergency action document.
Presidential emergency action document— The term presidential emergency action document refers to—
each of the approximately 56 documents described as presidential emergency action documents in the budget justification materials for the Office of Legal Counsel of the Department of Justice submitted to Congress in support of the budget of the President for fiscal year 2018; and
any other pre-coordinated legal document in existence before, on, or after the date of the enactment of this Act, that—
is designated as a presidential emergency action document; or
is designed to implement a presidential decision or transmit a presidential request when an emergency disrupts normal governmental or legislative processes.
Sec. 534 Emergency and overseas contingency operations designations by Congress in statute
Section 251(b)(2)(A) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 901(b)(2)(A)) is amended—
in clause (i), by striking “and the President subsequently so designates”; and
in clause (ii), by striking “and the President subsequently so designates”.
VI Security from Political Interference in Justice
Sec. 601 Short title
This title may be cited as the “Security from Political Interference in Justice Act of 2020”.
Sec. 602 Definitions
In this title:
Communications log— The term communications log means the log required to be maintained under section 603(a).
Covered communication—
In general— The term covered communication means any communication relating to any contemplated or ongoing investigation or litigation conducted by the Department of Justice in any civil or criminal matter (regardless of whether a civil action or criminal indictment or information has been filed).
Exceptions— The term does not include a communication that is any of the following:
A communication that involves contact between the President, the Vice President, the Counsel to the President, or the Principal Deputy Counsel to the President, and the Attorney General, the Deputy Attorney General, or the Associate Attorney General, except to the extent that the communication concerns a contemplated or ongoing investigation or litigation in which a target or subject is one of the following:
The President, the Vice President, or a member of the immediate family of the President or Vice President.
Any individual working in the Executive Office of the President who is compensated at a rate of pay at or above level II of the Executive Schedule under section 5313 of title 5, United States Code.
The current or former chair or treasurer of any national campaign committee that sought the election or seeks the reelection of the President, or any officer of such a committee exercising authority at the national level, during the tenure in office of the President.
A communication that involves contact between an officer or employee of the Department of Justice and an officer or employee of the Executive Office of the President on a particular matter, if any of the President, the Vice President, the Counsel to the President, or the Principal Deputy Counsel to the President, and if any of the Attorney General, the Deputy Attorney General, or the Associate Attorney General have designated a subordinate to carry on such contact, and the person so designating monitors all subsequent communications and the person designated keeps the designating person informed of each such communication, except to the extent that the communication concerns a contemplated or ongoing investigation or litigation in which a target or subject is one of the following:
The President, the Vice President, or a member of the immediate family of the President or Vice President.
Any individual working in the Executive Office of the President who is compensated at a rate of pay at or above level II of the Executive Schedule under section 5313 of title 5, United States Code.
The current or former chair or treasurer of any national campaign committee that sought the election or seeks the reelection of the President, or any officer of such a committee exercising authority at the national level, during the tenure in office of the President.
A communication that involves contact from or to the Deputy Counsel to the President for National Security Affairs, the staff of the National Security Council, and the staff of the Homeland Security Council that relates to a national security matter, except to the extent that the communication concerns a pending adversary case in litigation that may have national security implications.
A communication that involves contact between the Office of the Pardon Attorney of the Department of Justice and the Counsel to the President or the Deputy Counsels to the President relating to pardon matters.
A communication that relates solely to policy, appointments, legislation, rulemaking, budgets, public relations or affairs, programmatic matters, intergovernmental relations, administrative or personnel matters, appellate litigation, or requests for legal advice.
Immediate family— The term immediate family of the President or Vice President means those persons to whom the President or Vice President—
is related by blood, marriage, or adoption; or
stands in loco parentis.
Sec. 603 Communications logs
In general— The Attorney General shall maintain a log of covered communications.
Contents— A communications log shall include, with respect to a covered communication—
the name and title of each officer or employee of the Department of Justice or the Executive Office of the President who participated in the covered communication;
the topic of the covered communication; and
a statement describing the purpose and necessity of the covered communication.
Oversight—
Periodic disclosure of logs— Not later than January 30 and July 30 of each year, the Attorney General shall submit to the Office of the Inspector General of the Department of Justice a report containing the communications log for the 6-month period preceding that January or July.
Notice of inappropriate or improper communications— The Office of the Inspector General of the Department of Justice shall—
review each communications log received under paragraph (1)(A); and
notify the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate if the Inspector General determines that a covered communication described in the communications log—
is inappropriate from a law enforcement perspective; or
raises concerns about improper political interference.
Sec. 604 Rule of construction
Nothing in this title may be construed to affect any requirement to report pursuant to title I of this Act, or the amendments made by that title.
VII Protecting Inspector General Independence
A Requiring Cause for Removal
Sec. 701 Short title
This subtitle may be cited as the “Inspector General Independence Act”.
Sec. 702 Amendment
The Inspector General Act of 1978 (5 U.S.C. App.) is amended—
in section 3(b)—
by striking “An Inspector General” and inserting “(1) An Inspector General”;
by inserting after “by the President” the following: “in accordance with paragraph (2)”; and
by inserting at the end the following new paragraph:
“(2) The President may remove an Inspector General only for any of the following grounds (and the documentation of any such ground shall be included in the communication required pursuant to paragraph (1)):
“(A) Documented permanent incapacity.
“(B) Documented neglect of duty.
“(C) Documented malfeasance.
“(D) Documented conviction of a felony or conduct involving moral turpitude.
“(E) Documented knowing violation of a law or regulation.
“(F) Documented gross mismanagement.
“(G) Documented gross waste of funds.
“(H) Documented abuse of authority.
“(I) Documented inefficiency.”
in section 8G(e)(2), by adding at the end the following new sentence:
“(A) Documented permanent incapacity.
“(B) Documented neglect of duty.
“(C) Documented malfeasance.
“(D) Documented conviction of a felony or conduct involving moral turpitude.
“(E) Documented knowing violation of a law or regulation.
“(F) Documented gross mismanagement.
“(G) Documented gross waste of funds.
“(H) Documented abuse of authority.
“(I) Documented inefficiency.”
B Inspectors General of Intelligence Community
Sec. 711 Independence of Inspectors General of the Intelligence Community
In general— The National Security Act of 1947 (50 U.S.C. 3001 et seq.) is amended by adding at the end the following new title:
“XII Matters regarding Inspectors General of elements of the intelligence community
“A Inspectors General
“1201. Independence of Inspectors General
“(a) Removal—A covered Inspector General may be removed from office only by the head official. The head official may remove a covered Inspector General only for any of the following grounds:
“(1) Documented permanent incapacity.
“(2) Documented neglect of duty.
“(3) Documented malfeasance.
“(4) Documented conviction of a felony or conduct involving moral turpitude.
“(5) Documented knowing violation of a law or regulation.
“(6) Documented gross mismanagement.
“(7) Documented gross waste of funds.
“(8) Documented abuse of authority.
“(9) Documented Inefficiency.
“(b) Administrative leave—A covered Inspector General may be placed on administrative leave only by the head official. The head official may place a covered Inspector General on administrative leave only for any of the grounds specified in subsection (a).
“(c) Notification—The head official may not remove a covered Inspector General under subsection (a) or place a covered Inspector General on administrative leave under subsection (b) unless—
“(1) the head official transmits in writing to the appropriate congressional committees a notification of such removal or placement, including an explanation of the documented grounds specified in subsection (a) for such removal or placement; and
“(2) with respect to the removal of a covered Inspector General, a period of 30 days elapses following the date of such transmittal.
“(d) Report—Not later than 30 days after the date on which the head official notifies a covered Inspector General of being removed under subsection (a) or placed on administrative leave under subsection (b), the office of that Inspector General shall submit to the appropriate congressional committees a report containing—
“(1) a description of the facts and circumstances of any pending complaint, investigation, inspection, audit, or other review or inquiry, including any information, allegation, or complaint reported to the Attorney General in accordance with section 535 of title 28, United States Code, that the Inspector General was working on as of the date of such removal or placement; and
“(2) any other significant matter that the office of the Inspector General determines appropriate.
“(e) Rule of construction—Nothing in this section shall be construed to prohibit a personnel action of a covered Inspector General otherwise authorized by law, other than transfer or removal.
“(f) Definitions—In this section:
“(1) Administrative leave—The term administrative leave includes any other type of paid or unpaid non-duty status.
“(2) Appropriate congressional committees—The term appropriate congressional committees means—
“(A) the congressional intelligence committees; and
“(B) the Committee on Oversight and Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate.
“(3) Head official—The term head official means—
“(A) with respect to the position of a covered Inspector General that requires appointment by the President, by and with the advice and consent of the Senate, the President; and
“(B) with respect to the position of a covered Inspector General that requires appointment by a head of a department or agency of the Federal Government, the head of such department or agency.”
Definition— Section 3 of such Act (50 U.S.C. 3003) is amended by adding at the end the following new paragraph:
“(8) The term covered Inspector General means each of the following:
“(A) The Inspector General of the Intelligence Community.
“(B) The Inspector General of the Central Intelligence Agency.
“(C) The Inspector General of the Defense Intelligence Agency.
“(D) The Inspector General of the National Reconnaissance Office.
“(E) The Inspector General of the National Geospatial-Intelligence Agency.
“(F) The Inspector General of the National Security Agency.”
Clerical amendments— The table of sections at the beginning of the National Security Act of 1947 is amended by adding after the items relating to title XI the end the following new items:
Sec. 712 Authority of Inspectors General of the Intelligence Community to determine matters of urgent concern
Determination—
In general— Title XII of the National Security Act of 1947, as added by section 711, is amended by inserting after section 1201 the following new section:
“1203. Determination of matters of urgent concern
“(a) Determination—Each covered Inspector General shall have sole authority to determine whether any complaint or information reported to the Inspector General is a matter of urgent concern. Such determination is final and conclusive.
“(b) Foreign interference in elections—In addition to any other matter which is considered an urgent concern pursuant to section 103H(k)(5)(G), section 17(d)(5)(G) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517(d)(5)(G)), or other applicable provision of law, the term urgent concern includes a serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to foreign interference in elections in the United States.”
Clerical amendment— The table of sections at the beginning of the National Security Act of 1947 is amended by inserting after the item relating to section 1201, as added by section 711, the following new item:
Conforming amendments—
Intelligence community— Section 103H(k)(5)(G) of the National Security Act of 1947 (50 U.S.C. 3033(k)(5)(G)) is amended by striking “In this paragraph” and inserting “In accordance with section 1203, in this paragraph”.
Central Intelligence Agency— Section 17(d)(5)(G) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517(d)(5)(G)) is amended by striking “In this paragraph” and inserting “In accordance with section 1203 of the National Security Act of 1947, in this paragraph”.
Reports on unresolved differences— Paragraph (3) of section 103H(k) of the National Security Act of 1947 (50 U.S.C. 3033(k)) is amended by adding at the end the following new subparagraph:
“(C) With respect to each report submitted pursuant to subparagraph (A)(i), the Inspector General shall include in the report, at a minimum—
“(i) a general description of the unresolved differences, the particular duties or responsibilities of the Inspector General involved, and, if such differences relate to a complaint or information under paragraph (5), a description of the complaint or information and the entities or individuals identified in the complaint or information; and
“(ii) to the extent such differences can be attributed not only to the Director but also to any other official, department, agency, or office within the executive branch, or a component thereof, the titles of such official, department, agency, or office.”
Clarification of role of Director of National Intelligence— Section 102A(f)(1) of such Act (50 U.S.C. 3024(f)(1)) is amended—
by redesignating subparagraph (B) as subparagraph (C); and
by inserting after subparagraph (A) the following new subparagraph:
“(B) The authority of the Director of National Intelligence under subparagraph (A) includes coordinating and supervising activities undertaken by elements of the intelligence community for the purpose of protecting the United States from any foreign interference in elections in the United States.”
Sec. 713 Conforming amendments and coordination with other provisions of law
Intelligence community— Paragraph (4) of section 103H(c) of the National Security Act of 1947 (50 U.S.C. 3033(c)) is amended to read as follows:
“(4) The provisions of title XII shall apply to the Inspector General with respect to the removal of the Inspector General and any other matter relating to the Inspector General as specifically provided for in such title.”
Central Intelligence Agency— Paragraph (6) of section 17(b) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 3517(b)) is amended to read as follows:
“(6) The provisions of title XII of the National Security Act of 1947 shall apply to the Inspector General with respect to the removal of the Inspector General and any other matter relating to the Inspector General as specifically provided for in such title.”
Other elements—
In general— Title XII of the National Security Act of 1947, as added by section 711, is further amended by inserting after section 1203, as added by section 712(a), the following new section:
“1205. Coordination with other provisions of law
“No provision of law that is inconsistent with any provision of this title shall be considered to supersede, repeal, or otherwise modify a provision of this title unless such other provision of law specifically cites a provision of this title in order to supersede, repeal, or otherwise modify that provision of this title.”
Clerical amendment— The table of sections at the beginning of the National Security Act of 1947 is amended by inserting after the item relating to section 1203, as added by section 713, the following new item:
C Congressional Notification
Sec. 721 Short title
This subtitle may be cited as the “Inspector General Protection Act”.
Sec. 722 Congressional notification of change in status of Inspector General
Change in status of Inspector General of offices— Section 3(b) of the Inspector General Act of 1978 (5 U.S.C. App.) is amended—
by inserting “, is placed on paid or unpaid non-duty status,” after “is removed from office”;
by inserting “, change in status,” after “any such removal”; and
by inserting “, change in status,” after “before the removal”.
Change in status of Inspector General of designated Federal entities— Section 8G(e)(2) of the Inspector General Act of 1978 (5 U.S.C. App.) is amended—
by inserting “, is placed on paid or unpaid non-duty status,” after “office”;
by inserting “, change in status,” after “any such removal”; and
by inserting “, change in status,” after “before the removal”.
Effective Date— The amendments made by this section shall take effect 30 days after the date of the enactment of this Act.
Sec. 723 Presidential explanation of failure to nominate an Inspector General
In General— Subchapter III of chapter 33 of title 5, United States Code, is amended by inserting after section 3349d the following new section:
“3349e. Presidential explanation of failure to nominate an Inspector General
“If the President fails to make a formal nomination for a vacant Inspector General position that requires a formal nomination by the President to be filled within the period beginning on the date on which the vacancy occurred and ending on the day that is 210 days after that date, the President shall communicate, within 30 days after the end of such period, to Congress in writing—
“(1) the reasons why the President has not yet made a formal nomination; and
“(2) a target date for making a formal nomination.”
Clerical Amendment— The table of sections for chapter 33 of title 5, United States Code, is amended by inserting after the item relating to 3349d the following new item:
Effective Date— The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to any vacancy first occurring on or after that date.
VIII Protecting Whistleblowers
A Whistleblower Protection Improvement
Sec. 801 Short title
This subtitle may be cited as the “Whistleblower Protection Improvement Act of 2020”.
Sec. 802 Additional whistleblower protections
Investigations as personnel actions—
In general— Section 2302(a)(2)(A) of title 5, United States Code, is amended—
in clause (xi), by striking “and” at the end;
by redesignating clause (xii) as clause (xiii); and
by adding after the clause (xi) the following:
“(xii) the opening of any investigation as a result of a disclosure protected by subsection (b)(8) (but not including any investigation that is ministerial or nondiscretionary or that is conducted by an Inspector General or Special Inspector General under the authority of the Inspector General Act of 1978 or any other law granting authority to an Inspector General or Special Inspector General); and”
Application— The amendment made by paragraph (1) shall apply to any investigation opened (as described under section 2302(a)(2)(A)(xii) of title 5, United States Code, as added by such paragraph) on or after the date of enactment of this Act.
Right To petition Congress—
In general— Section 2302(b)(9) of title 5, United States Code, is amended—
in subparagraph (C), by striking “or” at the end;
in subparagraph (D), by adding “or” at the end after the semicolon; and
by adding at the end the following:
“(E) the exercise of any right protected under section 7211;”
Application— The amendment made by paragraph (1) shall apply to the exercise of any right described in section 2302(b)(9)(E) of title 5, United States Code, as added by paragraph (1), occurring on or after the date of enactment of this Act.
Prohibition on disclosure of whistleblower identity—
In general— Section 2302 of title 5, United States Code, is amended by adding at the end the following:
“(g)
“(1) No employee of an agency may willfully communicate or transmit to any individual who is not an officer or employee of the Government the identity of, or personally identifiable information about, any other employee who has made, or is suspected to have made, a disclosure protected by subsection (b)(8), unless—
“(A) the other employee provides express written consent prior to the communication or transmission;
“(B) the communication or transmission is made in accordance with the provisions of section 552a;
“(C) the communication or transmission is made to a lawyer for the sole purpose of providing legal advice to an employee accused of whistleblower retaliation; or
“(D) the communication or transmission is required or permitted by any other provision of law.
“(2) In this subsection, the term officer or employee of the Government means—
“(A) the President;
“(B) a Member of Congress;
“(C) a member of the uniformed services;
“(D) an employee as that term is defined in section 2105, including an employee of the United States Postal Service, the Postal Regulatory Commission, or the Department of Veterans Affairs (including any employee appointed pursuant to chapter 73 or 74 of title 38); and
“(E) any other officer or employee in any branch of the Government of the United States.”
Application— The amendment made by paragraph (1) shall apply to any transmission or communication described in subsection (g) of section 2302 of title 5, United States Code, as added by paragraph (1), made on or after the date of enactment of this Act.
Right To petition Congress—
In general— Section 7211 of title 5, United States Code, is amended to read as follows:
“7211. Employees’ right to petition or furnish information or respond to Congress
“(a) In general—Each officer or employee of the Federal Government, individually or collectively, has a right to—
“(1) petition Congress or a Member of Congress;
“(2) furnish information, documents, or testimony to either House of Congress, any Member of Congress, or any committee or subcommittee of the Congress; or
“(3) respond to any request for information, documents, or testimony from either House of Congress or any Committee or subcommittee of Congress.
“(b) Prohibited actions—No officer or employee of the Federal Government may interfere with or deny the right set forth in subsection (a), including by—
“(1) prohibiting or preventing, or attempting or threatening to prohibit or prevent, any other officer or employee of the Federal Government from engaging in activity protected in subsection (a); or
“(2) removing, suspending from duty without pay, demoting, reducing in rank, seniority, status, pay, or performance or efficiency rating, denying promotion to, relocating, reassigning, transferring, disciplining, or discriminating in regard to any employment right, entitlement, or benefit, or any term or condition of employment of, any other officer or employee of the Federal Government or attempting or threatening to commit any of the foregoing actions protected in subsection (a).
“(c) Application—This section shall not be construed to authorize disclosure of any information that is—
“(1) specifically prohibited from disclosure by any other provision of Federal law; or
“(2) specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs, unless disclosure is otherwise authorized by law.
“(d) Definition of officer or employee of the Federal Government—For purposes of this section, the term officer or employee of the Federal Government includes—
“(1) the President;
“(2) a Member of Congress;
“(3) a member of the uniformed services;
“(4) an employee (as that term is defined in section 2105);
“(5) an employee of the United States Postal Service or the Postal Regulatory Commission; and
“(6) an employee appointed under chapter 73 or 74 of title 38.”
Clerical amendment— The table of sections for subchapter II of chapter 72 of title 5, United States Code, is amended by striking the item related to section 7211 and inserting the following:
Sec. 803 Enhancement of whistleblower protections
Disclosures relating to officers or employees of an Office of Inspector General— Section 1213(c) of title 5, United States Code, is amended by adding at the end the following:
“(3) If the information transmitted under this subsection disclosed a violation of law, rule, or regulation, or gross waste, gross mismanagement, abuse of authority, or a substantial and specific danger to public health or safety, by any officer or employee of an Office of Inspector General, the Special Counsel may refer the matter to the Committee of Inspectors General for Integrity and Efficiency, which shall comply with the standards and procedures applicable to investigations and reports under subsection (c).”
Ensuring timely relief—
Individual right of action— Section 1221 of title 5, United States Code, is amended by striking “section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D),” in each instance and inserting “section 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13), or section 2302(g),”.
Stays— Section 1221(c)(2) of title 5, United States Code, is amended to read as follows:
“(2) Any stay requested under paragraph (1) shall be granted within 10 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date the request is made, if the Board determines that such a stay would be appropriate. If the stay request is denied, the employee, former employee, or applicant may, within 7 days after receiving notice of the denial, file an appeal for expedited review by the Board. The agency shall have 7 days thereafter to respond. The Board shall provide a decision not later than 21 days after receiving the appeal. During the period of appeal, both parties may supplement the record with information unavailable to them at the time the stay was first requested.”
Access to district court; jury trials— Section 1221(i) of title 5, United States Code, is amended—
by striking “(i) Subsections” and inserting “(i)(1) Subsections”; and
by adding at the end the following:
“(2)
“(A) If, in the case of an employee, former employee, or applicant for employment who seeks corrective action from the Merit Systems Protection Board based on an alleged prohibited personnel practice described in section 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13), or section 2302(g), no final order or decision is issued by the Board within 180 days after the date on which a request for such corrective action has been duly submitted to the Board, such employee, former employee, or applicant may, after providing written notice to the Special Counsel and the Board and only within 20 days after providing such notice, bring an action for review de novo before the appropriate United States district court, and such action shall, at the request of either party to such action, be tried before a jury. Upon filing of an action with the appropriate United States district court, any proceedings before the Board shall cease and the employee, former employee, or applicant for employment waives any right to refile with the Board.
“(B) If the Board certifies (in writing) to the parties of a case that the complexity of such case requires a longer period of review, subparagraph (A) shall be applied by substituting “240 days” for “180 days”.
“(C) In any such action brought before a United States district court under subparagraph (A), the court—
“(i) shall apply the standards set forth in subsection (e); and
“(ii) may award any relief which the court considers appropriate, including any relief described in subsection (g).”
Recipients of whistleblower disclosures— Section 2302(b)(8)(B) of title 5, United States Code, is amended by striking “or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures” and inserting “the Inspector General of an agency, a supervisor in the employee’s direct chain of command up to and including the head of the employing agency, or to an employee designated by any of the aforementioned individuals for the purpose of receiving such disclosures”.
Attorney fees— Section 7703(a) of title 5, United States Code, is amended by adding at the end the following:
“(3) If an employee, former employee, or applicant for employment is the prevailing party under an appeal under this section, the employee, former employee, or applicant for employment shall be entitled to attorney fees for all representation carried out pursuant to this section. In such an action for attorney fees, the agency responsible for taking the personnel action shall be the respondent and shall be responsible for paying the fees.”
Extending Whistleblower Protection Act to certain employees— Section 2302(a)(2)(A) of title 5, United States Code, is amended in the matter following clause (xiii)—
by inserting “subsection (b)(9)(A)(i), (B), (C), (D), or (E), subsection (b)(13), or subsection (g),” after “subsection (b)(8),”; and
by inserting after “title 31” the following: “, a commissioned officer or applicant for employment in the Public Health Service, and a noncareer appointee in the Senior Executive Service”.
Relief— Section 7701(b)(2)(A) of title 5, United States Code, is amended by striking “upon the making of the decision” and inserting “upon making of the decision, necessary to make the employee whole as if there had been no prohibited personnel practice, including training, seniority and promotions consistent with the employee’s prior record,”.
Sec. 804 Classifying certain furloughs as adverse personnel actions
in paragraph (4), by striking “and” at the end; and
by striking paragraph (5) and inserting the following:
“(5) a furlough of more than 14 days but less than 30 days; and
“(6) a furlough of 13 days or less that is not due to a lapse in appropriations;”
Application— The amendment made by subsection (a) shall apply to any furlough covered by such section 7512(5) or (6) (as amended by such subsection) occurring on or after the date of enactment of this Act.
Sec. 805 Codification of protections for disclosures of censorship related to research, analysis, or technical information
In general— Section 2302 of title 5, United States Code, as amended by section 802(c)(1), is further amended by adding at the end the following:
“(h)
“(1) In this subsection—
“(A) the term applicant means an applicant for a covered position;
“(B) the term censorship related to research, analysis, or technical information means any effort to distort, misrepresent, or suppress research, analysis, or technical information; and
“(C) the term employee means an employee in a covered position in an agency.
“(2)
“(A) Any disclosure of information by an employee or applicant for employment that the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information—
“(i) shall come within the protections of subsection (b)(8)(A) if—
“(I) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—
“(aa) any violation of law, rule, or regulation; or
“(bb) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and
“(II) such disclosure is not specifically prohibited by law or such information is not specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs; and
“(ii) shall come within the protections of subsection (b)(8)(B) if—
“(I) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—
“(aa) any violation of law, rule, or regulation; or
“(bb) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and
“(II) the disclosure is made to the Special Counsel, or to the Inspector General of an agency or another person designated by the head of the agency to receive such disclosures, consistent with the protection of sources and methods.
“(3) A disclosure shall not be excluded from paragraph (2) for any reason described under subsection (f)(1) or (2).
“(4) Nothing in this subsection shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any disclosure of information believed to be evidence of censorship related to research, analysis, or technical information.”
Repeal—
In general— Section 110 of the Whistleblower Protection Enhancement Act of 2012 (Public Law 112–199) is hereby repealed.
Rule of construction— Nothing in this section shall be construed to limit or otherwise affect any action under such section 110 commenced before the date of enactment of this Act or any protections afforded by such section with respect to such action.
Sec. 806 Technical and conforming amendments
Title 5, United States Code, is amended—
in section 1212(h), by striking “or (9)” in each instance and inserting “, (b)(9), (b)(13), or (g)”;
in section 1214(a)—
by striking “section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D)” in each instance and inserting “section 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13), or section 2302(g)”; and
in subsection (i), by striking “section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9)” and inserting “section 2302(b)(8), subparagraph (A)(i), (B), (C), (D), or (E) of section 2302(b)(9), section 2302(b)(13), or section 2302(g)”;
in section 1215, by striking “section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D)” in each instance and inserting “section 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13), or section 2302(g)”;
in section 2302—
in subsection (a)—
in paragraph (1), by inserting “or (g)” after “subsection (b)”; and
in paragraph (2)(C)(i), by striking “subsection (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D)” and inserting “section 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13), or section 2302(g)”; and
in subsection (c)(1)(B), by striking “paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b)” and inserting “paragraph (8), subparagraph (A)(i), (B), (C), or (D) of paragraph (9), or paragraph (13) of subsection (b) or subsection (g)”;
in section 7515(a)(2), by striking “paragraph (8), (9), or (14) of section 2302(b)” and inserting “paragraph (8), (9), (13), or (14) of section 2302(b) or section 2302(g)”;
in section 7701(c)(2)(B), by inserting “or section 2302(g)” after “section 2302(b)”; and
in section 7703(b)(1)(B), by striking “section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D)” in each instance and inserting “section 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C), (D), or (E), section 2302(b)(13), or section 2302(g)”.
B Reauthorization of Merit Systems Protection Board
Sec. 811 Short title
This subtitle may be cited as the “Merit Systems Protection Board Empowerment Act of 2020”.
Sec. 812 Reauthorization of Merit Systems Protection Board
Section 8(a)(1) of the Whistleblower Protection Act of 1989 (5 U.S.C. 5509 note) is amended by striking “2003, 2004, 2005, 2006, and 2007” and inserting “2021, 2022, 2023, 2024, and 2025”.
Sec. 813 Authorization of Federal employee surveys for merit systems studies
Section 1204(e)(3) of title 5, United States Code, is amended by—
striking “(3) In carrying” and inserting “(3)(A) In carrying”; and
adding at the end the following:
“(B) The Office of Personnel Management and other agencies shall—
“(i) provide assistance to the Board to facilitate the conduct by the Board of surveys of employees; and
“(ii) upon request, unless otherwise prohibited by law, provide to the Board records and information concerning applicants for Federal employment.”
Sec. 814 Whistleblower training for MSPB administrative judges
Section 7701(b)(1) of title 5, United States Code, is amended to read as follows:
“(1)
“(A) The Board may hear any case appealed to it or may refer the case to an administrative law judge appointed under section 3105 or other employee of the Board designated by the Board to hear such cases, except that any case involving—
“(i) a removal from the service shall be heard by the Board, an employee experienced in hearing appeals, or an administrative law judge; and
“(ii) an alleged prohibited personnel practice in violation of section 2302(b)(8), section 2302(b)(9)(A)(i), (B), (C) or (D), or section 2302(b)(13) shall be heard by the Board or an administrative law judge or other employee of the Board designated by the Board to hear such cases who has successfully completed training regarding protections afforded by the Whistleblower Protection Act of 1989.
“(B) The Board, administrative law judge, or other employee shall make a decision after receipt of the written representations of the parties to the appeal and after opportunity for a hearing under subsection (a)(1) of this section. A copy of the decision shall be furnished to each party to the appeal and to the Office of Personnel Management.”
C Whistleblowers of the Intelligence Community
Sec. 821 Limitation on sharing of intelligence community whistleblower complaints with persons named in such complaints
In general— Title XII of the National Security Act of 1947, as added by section 711, is further amended by inserting after section 1205, as added by section 713(c), the following new subtitle:
“B Protections for whistleblowers
“1223. Limitation on sharing of intelligence community whistleblower complaints with persons named in such complaints
“(a) In general—It shall be unlawful for any employee or officer of the Federal Government to knowingly and willfully share any whistleblower disclosure information with any individual named as a subject of the whistleblower disclosure and alleged in the disclosure to have engaged in misconduct, unless—
“(1) the whistleblower consented, in writing, to such sharing before the sharing occurs;
“(2) a covered Inspector General to whom such disclosure is made—
“(A) determines that such sharing is necessary to advance an investigation, audit, inspection, review, or evaluation by the Inspector General; and
“(B) notifies the whistleblower of such sharing before the sharing occurs; or
“(3) an attorney for the Government—
“(A) determines that such sharing is necessary to advance an investigation by the attorney; and
“(B) notifies the whistleblower of such sharing before the sharing occurs.
“(b) Whistleblower disclosure information defined—In this section, the term whistleblower disclosure information means, with respect to a whistleblower disclosure—
“(1) the disclosure;
“(2) confirmation of the fact of the existence of the disclosure; or
“(3) the identity, or other identifying information, of the whistleblower who made the disclosure.”
Technical and clerical amendments—
Transfer— The National Security Act of 1947 (50 U.S.C. 3001 et seq.) is amended as follows:
Section 1104 is—
transferred to title XII of such Act, as added by section 711;
inserted before section 1223 of such Act, as added by this section; and
redesignated as section 1221.
Section 1106 is—
amended by striking “section 1104” each place it appears and inserting “section 1221”;
transferred to title XII of such Act, as added by section 711;
inserted after section 1223 of such Act, as added by this section; and
redesignated as section 1225.
Clerical amendments— The table of sections at the beginning of the National Security Act of 1947 is amended—
by striking the items relating to section 1104 and section 1106; and
by inserting after the item relating to section 1205 the following new items:
Definitions— Section 3 of such Act (50 U.S.C. 3003), as amended by section 711, is further amended by adding at the end the following new paragraphs:
“(9) The term whistleblower means a person who makes a whistleblower disclosure.
“(10) The term whistleblower disclosure means a disclosure that is protected under section 1221 of this Act or section 3001(j)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(j)).”
Conforming amendment— Section 5331 of the Damon Paul Nelson and Matthew Young Pollard Intelligence Authorization Act for Fiscal Years 2018, 2019, and 2020 (division E of Public Law 116–92; 50 U.S.C. 3033 note) is amended by striking “section 1104 of the National Security Act of 1947 (50 U.S.C. 3234)” and inserting “section 1221 of the National Security Act of 1947”.
Sec. 822 Disclosures to Congress
In general— Title XII of the National Security Act of 1947, as added by section 711, is further amended by inserting after section 1225, as designated by section 821(b), the following new section:
“1227. Procedures regarding disclosures to Congress
“(a) Guidance
“(1) Obligation to provide security direction upon request—Upon the request of a whistleblower, the head of the relevant element of the intelligence community, acting through the covered Inspector General for that element, shall furnish on a confidential basis to the whistleblower information regarding how the whistleblower may directly contact the congressional intelligence committees, in accordance with appropriate security practices, regarding a complaint or information of the whistleblower pursuant to section 103H(k)(5)(D) or other appropriate provision of law.
“(2) Nondisclosure—Unless a whistleblower who makes a request under paragraph (1) provides prior consent, a covered Inspector General may not disclose to the head of the relevant element of the intelligence community—
“(A) the identity of the whistleblower; or
“(B) the element at which such whistleblower is employed, detailed, or assigned as a contractor employee.
“(b) Oversight of obligation—If a covered Inspector General determines that the head of an element of the intelligence community denied a request by a whistleblower under subsection (a), directed the whistleblower not to contact the congressional intelligence committees, or unreasonably delayed in providing information under such subsection, the covered Inspector General shall notify the congressional intelligence committees of such denial, direction, or unreasonable delay.
“(c) Permanent security officer—The head of each element of the intelligence community may designate a permanent security officer in the element to provide to whistleblowers the information under subsection (a).”
Clerical amendment— The table of sections at the beginning of the National Security Act of 1947 is amended by inserting after the item relating to section 1225, as added by section 821(b), the following new item:
Conforming amendment— Section 103H(k)(5)(D)(i) of the National Security Act of 1947 (50 U.S.C. 3033(k)(5)(D)(i)) is amended by adding at the end the following: “The employee may request information pursuant to section 1227 with respect to contacting such committees.”.
Sec. 823 Prohibition against disclosure of whistleblower identity as reprisal against whistleblower disclosure by employees and contractors in intelligence community
In general— Paragraph (3) of subsection (a) of section 1221 of the National Security Act of 1947, as designated by section 821(b)(1)(A), is amended—
in subparagraph (I), by striking “; or” and inserting a semicolon;
by redesignating subparagraph (J) as subparagraph (K); and
by inserting after subparagraph (I) the following:
“(J) a knowing and willful disclosure revealing the identity or other personally identifiable information of such employee or such contractor employee without the express written consent of such employee or such contractor employee or if the Inspector General determines such disclosure is necessary for the exclusive purpose of investigating a complaint or information received under section 8H of the Inspector General Act of 1978 (5 U.S.C. App. 8H); or”
Applicability to detailees— Such subsection is amended by adding at the end the following:
“(5) Employee—The term employee, with respect to an agency or a covered intelligence community element, includes an individual who has been detailed to such agency or covered intelligence community element.”
Private right of action for unlawful disclosure of whistleblower identity— Subsection (d) of such section is amended to read as follows:
“(d) Enforcement
“(1) In general—Except as otherwise provided in this subsection, the President shall provide for the enforcement of this section.
“(2) Private right of action for unlawful, willful disclosure of whistleblower identity—In a case in which an employee of an agency, or other employee or officer of the Federal Government, takes a personnel action described in subsection (a)(3)(J) against an employee of a covered intelligence community element as a reprisal in violation of subsection (b) or in a case in which a contractor employee takes a personnel action described in such subsection against another contractor employee as a reprisal in violation of subsection (c), the employee or contractor employee against whom the personnel action was taken may bring a private action for all appropriate remedies, including injunctive relief and compensatory and punitive damages, against the employee or contractor employee who took the personnel action, in a Federal district court of competent jurisdiction within 180 days of when the employee or contractor employee first learned of or should have learned of the violation.”
IX Accountability for Acting Officials
Sec. 901 Short title
This title may be cited as the “Accountability for Acting Officials Act”.
Sec. 902 Clarification of Federal Vacancies Reform Act of 1998
First assistant requirements— Section 3345 of title 5, United States Code, is amended as follows:
In subsection (a)—
in paragraph (1), by adding at the end before the semi-colon the following: “, but, and except as provided in subsection (e), only if the individual serving in the position of first assistant has occupied such position for a period of at least 30 days during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve”; and
by striking subparagraph (A) of paragraph (3) and inserting the following:
“(A) the officer or employee served in a position in such agency for a period of at least 1 year preceding the date of death, resignation, or beginning of inability to serve of the applicable officer; and”
By adding at the end the following:
“(d) For purposes of this section, a position shall be considered to be the first assistant to the office with respect to which a vacancy occurs only if such position has been designated, at least 30 days before the date of the vacancy, by law, rule, or regulation as the first assistant position. The previous sentence shall begin to apply on the date that is 180 days after the date of enactment of the Accountability for Acting Officials Act.
“(e) The 30-day service requirement in subsection (a)(1) shall not apply to any individual who is a first assistant if—
“(1) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and
“(2) the Senate has approved the appointment of such individual to such office.”
Qualifications— Section 3345(b) of title 5, United States Code, is amended by adding at the end the following:
“(3) Any individual directed to perform the functions and duties of the vacant office temporarily in an acting capacity under subsection (a)(2) or (f) shall possess the qualifications (if any) set forth in law, rule, or regulation that are otherwise applicable to an individual appointed by the President, by and with the advice and consent of the Senate, to occupy such office.”
Application to individuals removed from office— Paragraph (2) of section 3345(c) of title 5, United States Code, is amended by inserting after “the expiration of a term of office” the following: “or removal (voluntarily or involuntarily) from office”.
Vacancy of Inspector General positions—
In general— Section 3345 of title 5, United States Code, as amended by subsection (a)(2), is further amended by adding at the end the following:
“(f)
“(1) Notwithstanding subsection (a), if an Inspector General position that requires appointment by the President by and with the advice and consent of the Senate to be filled is vacant, the first assistant of such position shall perform the functions and duties of the Inspector General temporarily in an acting capacity subject to the time limitations of section 3346.
“(2) Notwithstanding subsection (a), if for purposes of carrying out paragraph (1) of this subsection, by reason of absence, disability, or vacancy, the first assistant to the position of Inspector General is not available to perform the functions and duties of the Inspector General, an acting Inspector General shall be appointed by the President from among individuals serving in an office of any Inspector General, provided that—
“(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable Inspector General, the individual served in a position in an office of any Inspector General for not less than 90 days; and
“(B) the rate of pay for the position of such individual is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.”
Application— The amendment made by paragraph (1) shall apply to any vacancy first occurring with respect to an Inspector General position on or after the date of enactment of this Act.
Testimony of acting officials before Congress— Section 3345 of title 5, United States Code, as amended by subsection (d)(1), is further amended by adding at the end the following:
“(g)
“(1) Any individual serving as an acting officer due to a vacancy to which this section applies, or any individual who has served in such capacity and continues to perform the same or similar duties beyond the time limits described in section 3346, shall appear, at least once during any 60-day period that the individual is so serving, before the appropriate committees of jurisdiction of the House of Representatives and the Senate.
“(2) Paragraph (1) may be waived upon mutual agreement of the chairs and ranking minority members of such committees.”
in subsection (a), by inserting “or as provided in subsection (d)” after “sickness”; and
by adding at the end the following:
“(d) With respect to the vacancy of the position of head of any agency listed in subsection (b) of section 901 of title 31, or any other position that is within the President's cabinet and to which this section applies, subsections (a) through (c) of this section and sections 3348(c), 3349(b), and 3349a(b) shall be applied by substituting “120” for “210” in each instance.”
by redesignating subsection (b) as subsection (c); and
by inserting after subsection (a) the following:
“(b) Notwithstanding subsection (a), any statutory provision covered under paragraph (1) of such subsection that contains a non-discretionary order or directive to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity shall be the exclusive means for temporarily authorizing an acting official to perform the functions and duties of such office.”
Reporting of vacancies—
in subsection (a)—
by striking “immediately upon” in each instance and inserting “not later than 7 days after”;
in paragraph (3), by striking “and” at the end;
in paragraph (4), by striking the period at the end and inserting “; and”; and
by adding at the end the following:
“(5) notification of the end of the term of service of any person serving in an acting capacity and the name of any subsequent person serving in an acting capacity and the date the service of such subsequent person began not later than 7 days after such date.”
in subsection (b), by striking “immediately” and inserting “not later than 14 days after the date of such determination”.
Technical corrections— Paragraphs (1) and (2) of subsection (b) of such section 3349 are amended to read as follows:
“(1) the Committee on Homeland Security and Governmental Affairs of the Senate;
“(2) the Committee on Oversight and Reform of the House of Representatives;”
Vacancies during presidential inaugural transitions— Subsection (b) of section 3349a of title 5, United States Code, is amended to read as follows:
“(b) Notwithstanding section 3346 (except as provided in paragraph (2) of this subsection) or 3348(c), with respect to any vacancy that exists on a transitional inauguration day, or that arises during the 60-day period beginning on such day, the person serving as an acting officer as described under section 3345 may serve in the office—
“(1) for no longer than 300 days beginning on such day; or
“(2) subject to subsection 3346(b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.”
X Strengthening Hatch Act Enforcement and Penalties
Sec. 1001 Short title
This title may be cited as the “Hatch Act Accountability Act”.
Sec. 1002 Strengthening Hatch Act enforcement and penalties against political appointees
Investigations by Office of Special Counsel— Section 1216 of title 5, United States Code, as amended by section 307, is amended—
in subsection (c), by striking “(1),”; and
by adding at the end the following:
“(e)
“(1) In addition to the authority otherwise provided in this chapter, the Special Counsel—
“(A) shall conduct an investigation with respect to any allegation concerning political activity prohibited under subchapter III of chapter 73 (relating to political activities by Federal employees); and
“(B) may, regardless of whether the Special Counsel has received an allegation, conduct any investigation as the Special Counsel considers necessary concerning political activity prohibited under such subchapter.
“(2) With respect to any investigation under paragraph (1), the Special Counsel may seek corrective action under section 1214 and disciplinary action under section 1215 in the same way as if a prohibited personnel practice were involved.
“(f)
“(1) Consistent with paragraph (3), if after an investigation under subsection (d)(1) the Special Counsel determines that a political appointee has violated section 7323 or 7324, the Special Counsel may assess an administrative fine, not to exceed $50,000, against such political appointee.
“(2)
“(A) Any political appointee assessed a fine under paragraph (1) shall have the opportunity to request a hearing in a time and manner prescribed for by regulations issued by the Special Counsel.
“(B) If a political appointee assessed a fine under paragraph (1) does not request a hearing under subparagraph (A), the decision of the Special Counsel finding a violation and assessing a fine shall be considered a final decision and shall not be subject to judicial review.
“(C) If a political appointee requests a hearing under subparagraph (A), the Special Counsel shall conduct a hearing in accordance with section 554 and issue a final decision not more than 30 days after the conclusion of the hearing.
“(D) Not later than 30 days after the issuance of a final decision by the Special Counsel under subparagraph (C), the political appointee who is the subject of the final decision may file an action seeking judicial review in accordance with section 702.
“(E) Consistent with paragraph (3), the Special Counsel may file a civil action in the district courts of the United States seeking an order and such other relief as the court deems appropriate to enforce a final decision by the Special Counsel under this paragraph.
“(3) The Special Counsel may not assess an administrative fine or file a civil action to enforce a final decision of the Special Counsel under paragraph (2)—
“(A) unless no disciplinary action or civil penalty has been taken or assessed, respectively, against the political appointee pursuant to section 7326; and
“(B) until on or after the date that is 90 days after the date that the complaint regarding the political appointee was presented to the President under section 1215(b).
“(4)
“(A) Not later than 90 days after receiving from the Special Counsel a complaint recommending disciplinary action under section 1215(b) with respect to a political appointee for a violation of section 7323 or 7324, the President shall provide a written statement to the Special Counsel on whether the President imposed the recommended disciplinary action, imposed another form of disciplinary action, or took no disciplinary action against the political appointee.
“(B) Not later than 14 days after receiving a written statement under subparagraph (A)—
“(i) the Special Counsel shall submit the written statement to the Committee on Oversight and Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate; and
“(ii) publish the written statement on the public website of the Office of Special Counsel.
“(5) Not later than 14 days after the date that the Special Counsel determines a political appointee has violated section 7323 or 7324, the Special Counsel shall—
“(A) submit a report on the investigation into such political appointee, and any communications sent from the Special Counsel to the President recommending discipline of such political appointee, to the Committee on Oversight and Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate; and
“(B) publish the report and such communications on the public website of the Office of Special Counsel.
“(6) In this subsection, the term political appointee means any individual, other than the President and the Vice-President, employed or holding office—
“(A) in the Executive Office of the President, the Office of the Vice President, and any other office of the White House, but not including any career employee; or
“(B) in a confidential, policy-making, policy-determining, or policy-advocating position appointed by the President, by and with the advice and consent of the Senate (other than an individual in the Foreign Service of the United States).”
Clarification on application of Hatch Act to EOP and OVP employees— Section 7322(1)(A) of title 5, United States Code, is amended by inserting after “Executive agency” the following: “, including the Executive Office of the President, the Office of the Vice President, and any other office of the White House,”.