Restoring Accountability to the VA

June 9, 2017

In 2014, the public learned from whistleblowers that government employees at the Veterans Affairs hospital in Phoenix, Arizona kept “secret waiting lists” to hide long waits for care at their facilities. Dozens of veterans died waiting for care as a result.

Since that watershed, there has been a torrent of revelations about misconduct at the Department of Veterans Affairs.

We learned that the Phoenix VA was not the only hospital to use secret wait lists. The problem was “systemic” across the VA system.

We learned of multiple instances where VA bureaucrats retaliated against whistleblowers for exposing malfeasance. Gallingly, the VA inspector general’s office reacted with “hostility” to whistleblowers and worked to “minimize” their allegations.

In other words, the very office charged with investigating misconduct at the VA was covering up misconduct at the VA.

These findings exposed a government agency whose dysfunction was hurting the nation’s veterans, in some cases driving them to despair. Last year, U.S. Navy veteran Charles Richard Ingram III burned himself to death outside a chronically understaffed VA clinic.

Revelations like these forced Obama’s VA secretary to resign. But a change in leadership is no substitute for a permanent change in policy. Which is why I am pleased that the Senate passed a bipartisan bill this week to hold the VA accountable.

The Department of Veterans Affairs Accountability and Whistleblower Protection Act, sponsored by my colleague Sen. Marco Rubio (R., Fla.), is a step in the right direction.

It expands the power of the VA secretary to reprimand and fire bureaucrats who are guilty of misconduct. At the same time, it restricts the bureaucracy’s power to punish employees who blow the whistle about misconduct at the department.

The bill requires the VA to report to Congress on how it manages its employees, including disciplinary actions it takes against them. That way we can keep an eye on the department going forward.

The bill has been endorsed by the nation’s most important veteran’s groups, including the American Legion, Veterans of Foreign Wars, and Concerned Veterans of America.

When men and women enlist in America’s armed forces, we make a solemn compact to back them up during and after their service. As recent VA scandals have shown, we have not been living up to our end of the bargain. The bill passed by the Senate this week is a first step toward making amends.

The Due Process Guarantee Act

May 26, 2017

Alexander Hamilton was no opponent of a strong executive. During the constitutional convention, he actually favored crowning an American king, a misguided proposal he dubbed the “English model.” Yet Hamilton understood that even the monarchical executive he preferred needed limits to his power. In Federalist 84, he listed some of the abuses of an out-of-control executive, singling out “arbitrary imprisonments.” He called them the “favorite and most formidable instruments” of tyrants.

The Constitution includes safeguards against this form of tyranny, including the right of habeas corpus and the guarantee that American citizens will not be “deprived of life, liberty, or property” by the government “without due process of law.”

Our commitment to these rights is tested in times of crisis. We have not always passed these tests. During the Second World War, President Franklin Roosevelt unilaterally authorized the internment of over 100,000 Japanese-Americans for fear they would spy against the United States. Most of them were native-born citizens. Many had never been to Japan before in their lives.

The internment of Japanese-Americans is a dark chapter in the nation’s history—the Supreme Court decision that enabled it, Korematsu v. United States, belongs to the “anti-canon” of worst Supreme Court decisions of all time, along with Plessy v. Ferguson and Dred Scott v. Sandford. The episode is a warning of how dangerous it is when we permit the executive branch to slip its constitutional restraints.

With this warning in mind, in 1971 Congress curbed the executive branch’s power to indefinitely detain U.S. citizens by passing the Non-Detention Act, which states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”

On Wednesday, I introduced the Due Process Guarantee Act, along with Sens. Dianne Feinstein (D-CA), Ted Cruz (R-TX), and several other colleagues, to further protect Americans from indefinite detention by the government.

Since the 9/11 attacks and the emergence of terrorist groups like ISIS, there has been renewed pressure to diminish our constitutional protections while growing government. Lawmakers from both parties have rushed to grant the executive branch the power to detain Americans without charge, without trial, and without meeting the evidentiary standard required for every other crime—potentially for life.

The Due Process Guarantee Act would raise the bar the government has to clear in order to indefinitely detain American citizens and lawful permanent residents apprehended on U.S. soil. It would forbid the government from justifying such detentions using general authorizations of military force, such as the 2001 Authorization for Use of Military Force against the terrorists responsible for the 9/11 attacks. Instead, the government would be required to obtain explicit, written approval from Congress.

Our bill is based on a simple premise: If the president wants to go outside the ordinary law enforcement system to apprehend an American on U.S. soil without charge or trial, he needs extraordinary permission from Congress. And if elected representatives want to give the president this awesome power over their constituents, they need to be honest about it by granting an explicit authorization. They shouldn’t hide behind vague laws.

The bill is based also on my faith in our law enforcement officers and judges, who have successfully apprehended and prosecuted hundreds of homegrown terrorists. Their example proves that our security is not dependent on a supercharged president and weakened Constitution. We can secure the homeland without using the “formidable instruments” of tyrants.

Protecting Life Around the World

May 19, 2017

On January 23, 2017, just three days after he was inaugurated as president, President Trump issued an executive order directing the State Department to develop a plan that would require all foreign nongovernmental organizations funded by the United States to agree, as a condition of their receipt of U.S. funds, to neither perform not actively promote abortion as a method of family planning.

More commonly known as the “Mexico City Policy,” named for the location where President Reagan first announced the priorities in 1984, these restrictions on abortion promotion have been a lasting point of contention between successive administrations.

President Clinton and President Obama overturned the policy in 1993 and 2009, respectively. Apparently, they supported U.S. taxpayer dollars being used to end new life or to promote abortion. Whereas, President Bush and now President Trump are dedicated to ensuring taxpayer dollars are delivering international aid to vulnerable populations to promote a better life and opportunities to flourish, not to end life of those that may be living in poorer countries or struggling through a difficult time.

This Monday, Secretary of State Rex Tillerson released the details of President Trump’s reinstated Mexico City guidelines and it does even more to protect life than previous versions of the policy.

Specifically, Sec. Tillerson’s new “Protecting Life in Global Health Assistance” plan applies to all global health assistance programs funded by any federal agency, while previous versions of the policy only applied to family planning programs funded by United States Agency for International Development and the State Department. This means the new version of the policy will affect approximately $8.8 billion in funds spent by the Department of Defense, USAID, and the State Department.

While this development will save countless lives across the globe, we cannot leave the fate of these regulations up to the whims of successive presidents. Congress must now step up and do what they can to turn the “Protecting Life in Global Health Assistance” executive order into law.

A first step could be to pass S.Res.15, a resolution I introduced expressing the sense of the Senate that the Mexico City policy should be permanently established, and then we can advance additional measures to safeguard life.

Bringing Higher Education into the 21st Century

May 12, 2017

Over the past 20 years, the price of wireless service has fallen 46 percent, the price of software has fallen 68 percent, the price of televisions has fallen 96 percent, and the quality of these services and technologies has improved markedly. But over that same time, the price of college tuition has risen 199 percent, and most parents would agree that the quality has not greatly improved.

But if prices typically fall as competition spurs quality advancement, as seen by the technological achievement of the last two decades, how has that not happened in education?

There is no one simple answer to this question, but the different regulatory environment facing higher education is a significant factor.

One-hundred years ago, there were six regional, voluntary, non-governmental institutions that helped universities and secondary schools coordinate curricula, degrees, and transfer credits. These institutions had no power to prevent the creation of higher education institutions.

This changed with the 1952 GI Bill. After congressional investigators found thousands of sham colleges were created overnight to take advantage of the benefits provided in the first 1944 GI Bill, the federal government turned these voluntary institutions into accreditors.

As the federal government steadily ramped up its financial support for higher education benefits, it continued outsourcing the vetting of higher education institutions to these regional accreditors.

This make-shift system worked well for decades, but in recent years these regional accreditors have come under heavy criticism for both lax oversight over some online institutions and a heavy hand in killing some promising innovations.

No regulator is ever going to be perfect, but if they are going to be gatekeepers for a sector of the economy as important as higher education they must be transparent and accountable to the American people. Unfortunately, our nation’s regional accreditors are neither. They do not share how they make their accrediting decisions with anyone and their board members do not face accountability at the ballot box.

This needs to change.

That is why I have introduced the Higher Education Reform and Opportunity Act. This bill would allow states to create their own accreditation system for institutions that want to be eligible for federal financial aid dollars.

Each state could then be as open or closed to higher education innovation as they saw fit. They could even stick with their current regional accreditors if they chose to do so. But they could also enable innovators like Purdue University President Mitch Daniels, who recently signed a deal with the online provider Kaplan University, to go even further in their mission to expand higher education access to those who had limited access before.

Our higher education system should not be held captive to 100 year-old institutions that were never intended to be regulatory gatekeepers in the first place. Instead we should allow those communities that want to experiment with higher education policy the freedom and accountability to do so.

Fighting for Family Flexibility

May 5, 2017

Every working American wishes their paycheck was bigger. But for working parents, sometimes time is more valuable than money. Sometimes being there for that doctor’s appointment, baseball game, or parent-teacher’s conference is worth more than time and a half.
 
And since 1978, hourly-paid government employees have been allowed to choose between taking overtime pay and comp time. If they worked more than 40 hours one week, they could take a bigger paycheck home that week, or bank that time and use it for family priorities when it was needed.
 
But if you work on an hourly basis in the private sector, this practice is illegal. Employers are not allowed to come to an agreement with their employees about how their overtime is used.
 
This double standard needs to end which is why I am so pleased Rep. Martha Roby’s (R-AL) “Working Families Flexibility Act” passed the House of Representatives earlier this week.
 
Roby’s bill, and a companion bill I introduced in the Senate, allows employers to offer their employees the option of taking comp time or overtime pay, both accrued at one and a half times the overtime hours worked.
 
Employers would not be able to force comp time on their employees and employees would not be able to take comp time whenever they wanted. Instead, the legislation requires employers and employees to come to a written agreement on how and when accrued overtime can be exchanged for comp time. 
 
If an employee does not want a comp time option, then they do not have to sign an agreement with their employer allowing them to do so.
 
If an employee wants to cash out all of their accrued time at the traditional overtime rate, they can do so at any time.
 
If an employee has any unused comp time at the end of the year, employers must cash that time out at the traditional overtime rate.
 
Some on the left have made some hysterical claims about the bill, asserting that it “ends the 40-hour work week” or “ends time and a half pay for overtime.” As the protections mentioned above make clear, nothing could be further from the truth. The bill maintains all existing employee protections, including the current 40-hour workweek and overtime accrual, and provides additional safeguards to ensure that the choice to use comp time is voluntary.
 
What the bill does do is offer millions of working American families the same flexibility that public sector employees have enjoyed for almost 40 years.
 
I look forward to working with my Senate colleagues on moving this bill through the Senate Health, Education, Labor, and Pensions Committee, on to the Senate floor, and then to President Trump’s desk.

The Incredible, Unprofitable Egg Board

April 7, 2017

Two years ago, a small California company called Hampton Creek, who had been selling a vegan mayonnaise called “Just Mayo” in stores nationwide, was attacked by a US Department of Agriculture (USDA) program called the “American Egg Board.”

You may be asking why on earth the federal government was involved in a pressure campaign to thwart a startup vegan brand of mayonnaise.

Simply put, it’s because the American Egg Board did not appreciate the small Hampton Creek vegan mayo company competing with the large, egg producing companies that it represented, so they took affirmative action to cut out their competition. While this behavior may be common in the private sector, the American Egg Board is a federally sanctioned commodity checkoff program, and that behavior has no place in a federal program.

Commodity checkoff programs were originally intended to support research and promote certain agricultural products. Industry representatives asked Congress for the USDA to pool funds by imposing a tax on producers of certain commodities and then put those taxes into a program, known as a checkoff program, that would financially support research and promotion.

In spite of this original intent and limited purpose, the USDA has been lax in its oversight of checkoff boards. As a result, many checkoff programs have acted beyond the scope of their statutory mandate, even including illegal lobbying and anti-competitive behavior, placing their government-sanctioned thumb on the scale of the free market.

Such was the case with the American Egg Board and Hampton Creek.

Now you may be asking: Is this really something the federal government should be doing in the first place?

Of course not. But until we eliminate checkoff programs or make them truly voluntary, we can, at the very least, ensure that they are not harming competition or stifling innovation in the agriculture industry.

If farmers and ranchers want to get together and pool their resources to better promote their products, then that is the free market at its best. But as soon as the power of the federal government is used to force people into a program they do not want to participate in, then that is crony capitalism at its worst.

Checkoff programs were intended to promote certain commodities, not disparage others. They are certainly not intended to prevent any new products from having a fair chance in the marketplace.

These programs are in need of reform and oversight. Senator Booker (D-NJ) and I believe our legislation, the “Opportunities for Fairness in Farming Act of 2017,” or the “OFF” Act (S. 741), can help provide that.

Not only would this bill clarify and fortify the prohibition of checkoff programs from contracting with organizations that lobby specifically on agriculture policy, but it also establishes program standards that prohibit anti-competitive behavior and other activities that may pose a conflict of interest.

To help enforce those rules, it requires transparency regarding a checkoff program’s budget and expenditures, ensuring money collected by the government isn’t used in illegal lobbying or in anti-competitive ways.

Should this pass into law, it will be a win for the free market and for small ranchers, farmers, and startups. And hopefully, it will ensure the USDA is not left standing with egg on its face again.

Preserving Fair Internet Competition

March 24, 2017

“Senate Votes to Kill Privacy Rules Guarding Your Online Info,” ABC News blares.

“Senate Votes to Undo Internet Privacy Rules,” CNN claims.

“Senate Votes to Let ISPs Sell Your Data Without Consent,” MSNBC says.

Reading these headlines Friday morning you might think that the United States Senate just voted to massively change how the Internet was regulated in a way that would significantly undermine your privacy rights.

Nothing could be further from the truth.

The reality is that the Senate voted Thursday to preserve the exact same rules that have protected consumers and allowed competition to thrive since the Internet was created decades ago.

Here are the facts: from the beginning of the Internet, both the Internet Service Providers (ISPs) you contract with for your home telecommunications needs (Comcast, Verizon, TimeWarner, etc.) and the companies you access on the Internet (Google, Amazon, Facebook, etc.) were both regulated by the Federal Trade Commission (FTC). The FTC created and enforced uniform privacy rules for both Internet providers and Internet firms.

But then in 2015 the Obama administration transferred regulatory control of ISPs from the FTC to the Federal Communications Commission (FCC) by reclassifying them as public utilities. They then began working on new privacy rules that would apply only to ISPs and not to the major firms such as Facebook that you actually send your data to on a daily basis. These new rules were not published until October 2016 and were scheduled to go into effect later this year.

If this proposed new regulatory situation doesn’t strike you as inherently unfair and nonsensical, consider a typical Americans interaction with ISPs and their favored Internet companies on a daily basis.

A typical American may wake up in the morning and check Gmail and Facebook on their home computer; this sends data to Google, Facebook, and their chosen home ISP. Then this American will hop in a car and access their Google Map and Spotify apps from their mobile phone; this sends their data to Google and Spotify and a completely different mobile ISP. This same American will then arrive at work or school where they will again send Google, Facebook and other apps their data and to a third, completely new ISP.

Why should these three separate ISPs be held to a more restrictive and expensive privacy standard than other Internet firms, such as Google, Facebook, and Spotify, especially when the latter are receiving and utilizing a far more comprehensive stream of personal data?

The American people very rightly have some privacy concerns about how their data is shared on the Internet. But Congress should tackle this issue in a comprehensive way that puts everyone on an equal playing field. The federal government should not be in the business of playing favorites with technology companies, which is why the Senate voted to rescind this regulation on Thursday.

Slow Walking the Swamp Drain

March 10, 2017

The federal government employs well over 2 million people. One man cannot lead an organization that large by himself. Not only do you need a full cabinet, but you need hundreds of undersecretaries and deputies as well. Being president without the aid of your cabinet and agency leaders makes the job almost impossible. But this is exactly the position Senate Democrats have chosen for the new Trump administration.

Of the last seven administrations, three had a full cabinet confirmed and in place within three weeks of the president’s inauguration. President Obama had all but two nominees confirmed within two weeks of his inauguration. And President Clinton had all but one nominee confirmed within one week after he took the oath of office. So, what about President Trump?

At four weeks into his presidency, a mere six of his fifteen nominees had not yet been voted on. And at the end of week seven, two of those nominees haven’t even had a single committee hearing.

How did this happen? Simple: Senate Democrats decided, as a conference, to block and obstruct President Trump’s cabinet nominees, carelessly smashing Senate norms of procedure and etiquette in the process. Senate Democrats have gone to such extraordinary lengths to sabotage the normal process of a new president staffing his administration that even The Washington Post called their obstruction “unprecedented.”

President Trump’s cabinet remains unfilled nearly three months into his presidency. And the rate of confirmation for his other nominees has been just as slow. With more than 1,000 additional positions still needing to be confirmed by the Senate, the bureaucracy will keep humming along without reforms and critical areas of the government will be compromised. Meanwhile, Democrats fill their election war chests and cause a political media frenzy.

This is not what the American people voted for in last year’s drain-the-swamp election. This is business as usual in Washington. And that’s just how the Democrats like it.

Cleaning Up the Clean Water Act

March 3, 2017

In 1972 Congress passed the Clean Water Act to protect the “waters of the United States” by empowering the Environmental Protection Agency (EPA) “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” At first glance, this seems like a sensible, even commendable, piece of legislation. After all, who doesn’t want clean water?

But there’s a catch: what exactly are the “waters of the United States”? Rivers, streams, lakes, bays, and marshes obviously fit the bill. But what about a small creek that contains running water only a few months out of the year? Or a ditch beside the road that diverts runoff water after a big storm but is otherwise dry? Or what about a hole in your backyard that periodically collects a few inches of rainwater?

The answers to these questions are vital, because the EPA’s jurisdiction to enforce its strict permitting and polluting regulations extends only to what is officially considered “waters of the United States.” But you won’t find these answers in the Clean Water Act, because Congress wrote the law without defining “waters of the United States” or providing the EPA with any clear and precise standards to do so. This ambiguity in the law – and the immense discretion enjoyed by the EPA as a result – is problematic for two main reasons.

First, by telling the EPA to regulate a thing without strictly defining what that thing is, Congress effectively gave the bureaucratic agency the power to make the law and to enforce it. You don’t need to be a cynic to see that such a concentration of power within a single government agency – especially one that is run by individuals who don’t have to stand for election and whose names the American people will never know – is a recipe for abuse and corruption.

Moreover, an executive agency that has the power to define something also has the power to redefine it, again and again. This is exactly what has happened with the Clean Water Act. Over the years, EPA regulators have interpreted – and repeatedly reinterpreted – the law to accommodate their ever-expanding conception of their own power. This process reached the point of absurdity under President Obama when the EPA issued a rule, commonly called the “Waters of the United States rule,” that expanded its reach so far that it claimed it could regulate a hole in someone’s backyard that fills with rainwater in the winter, even if it is situated miles away from a stream that leads into a river.

For left-wing environmental groups, the open-ended nature of the Clean Water Act has been a dream come true, providing endless opportunities to steadily expand the federal government’s control of public and private lands. But for many Americans – everyone from farmers and ranchers to ordinary homeowners – the EPA’s evolving definition of “waters of the United States” has been a nightmare. If you’re required to obtain a permit from the EPA in order to lawfully fill a hole in your backyard with dirt, and if the EPA has the power to fine you tens of thousands of dollars a day for building a pond on your farm, are your private-property rights not under attack?

Thankfully, this week President Trump signed an executive order that requires the EPA to revise the Obama administration’s rule according to the standard set forth by the late Supreme Court Justice Antonin Scalia. In Rapanos v. U.S., Justice Scalia proposed defining “waters of the United States” to mean “only relatively permanent, standing or flowing bodies of water” not including “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”

President Trump’s executive order is a tremendous first step toward bring clarity and commonsense to the Clean Water Act. But ultimately, this is a mess that only Congress can fix, which is why I will continue to try to advance legislative reforms, like those offered by Senators Barrasso and Paul, that will prevent the EPA from abusing its powers, while ensuring the agency still has the tools and resources it needs to help maintain a clean and healthy water supply in the United States.

The Military Humanitarian Operations Act

February 17, 2017

One of the most important features of the United States Constitution is the sharing of war powers between Congress and the president. The Framers knew the Executive Branch, united under the direction of a single individual, would possess certain characteristics – “Decision, activity, secrecy, and despatch,” as Alexander Hamilton famously wrote – that are necessary for conducting successful wars and responding quickly to national-security emergencies. Likewise, they understood that the Legislative Branch’s unique attributes – its proximity to the people and its consensus-based policymaking process, for instance – are best suited for making decisions that involve long-term commitments and include significant changes to the United States’ relationship with a foreign power.

Accordingly, the Constitution gives the president the power to conduct war, while reserving for Congress the power to declare war. By sharing the powers to protect the lives and liberties of the American people, the Framers ensured that our military and diplomatic policies would be informed by a long-term vision of American interests – forged through the kind of open debate and patient deliberation that are the province of Congress – while remaining flexible enough to respond to threats as they arise.

The authors of our Constitution were not naïve, however. They fully expected that their elegant division of labor in the realm of foreign-policy and national-security would produce conflict between the Legislative and Executive branches just as often as it would result in cooperation. How could the commander-in-chief of the world’s strongest military force in the world not grow impatient with pace of decision-making in the world’s greatest deliberative body, and vice versa?

But over time, as the separation of powers became less important to Washington politicians than the separation of parties, Congress became less deliberative and more comfortable yielding to the Executive Branch in matters of domestic and foreign policy. And presidents of both parties have been all too happy to take advantage of Congress’s acquiescence by unilaterally committing American blood and treasure to foreign conflicts, even when there is no compelling case that such a conflict poses a direct threat to our national security.

One of the most common pretexts that recent presidents have used to try to defend their go-it-alone approach to military engagements is preventing a humanitarian crisis. This is how President Obama justified his administration’s decision to intervene in Libya, without any authorization or consent from Congress, and it could likely be how President Trump might justify using the United States military to establish safe zones for refugees in the Middle East, as he promised in last year’s campaign.

But if you think about it, this is no justification at all. Regardless of whether humanitarian concerns are at stake, Congress deserves to be involved in the decision to commit America’s military forces to a prolonged armed conflict with the potential for loss of life and significant alteration of America’s geopolitical relationships. And more importantly, the men and women of our armed services deserve to have their elected representatives in Congress seriously consider and debate the merits of these missions before they are called to undertake them.

That’s why I recently introduced the Military Humanitarian Operations Act, a bill that will require the President receive authorization from Congress before using the military for humanitarian purposes where conflict is likely.

We only need to look at President Obama’s failed 2011 venture into the Libyan civil war to understand why this legislation is needed. Obama and his national security team initiated military action in Libya ostensibly to forestall a humanitarian disaster, but after we helped to overthrow Muammar Gaddafi the situation only got worse, culminating in the death of four Americans in Benghazi in 2012, including Ambassador Christopher Stevens, the first American ambassador killed in an attack in over 30 years. Libya is now a war-torn country riddled with ungovernable spaces where terrorist who threaten the United States are able to take root.

Congress should have debated the merits of using American forces in Libya, and stopped the president from doing so unilaterally. Had we been more prudent in the lead up to this engagement, the outcome would have been better for Americans and Libyans alike. With this legislation I hope we can take steps toward restoring the constitutional balance of power and better secure the freedoms of American citizens.