National Sea Grant College Program Amendments Act of 2015
Floor Speech
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Mr. THUNE. Madam President, I rise today to speak about the importance of keeping independent agencies accountable to Congress and to the American people. Congress created independent agencies to be places where expertise in complex areas of the Nation's economy informs policymaking within limits set by Congress. One such congressional creation is the Federal Communications Commission.
Congress conferred independence on the FCC so it would be free from the normal control exercised by the President over the executive branch. In recent years, the FCC has behaved less like an independent commission accountable to Congress and more as a de facto arm of the executive branch, wholly subservient to the President. At the same time, the FCC has become more partisan than ever before and an institution that has seized greater regulatory power while simultaneously shutting down bipartisan dialogue and compromise.
The recent rulemaking proceedings regarding title II common carrier authority, the massively expanded E-rate and Lifeline programs, backward-looking set-top box rules, and the agency's power grab over privacy regulations have all been characterized by a lack of bipartisan compromise or respect for the limits of the authority delegated by Congress. Much of the responsibility for this downward trajectory rests with the current FCC chairman, Tom Wheeler.
For example, during Chairman Wheeler's confirmation process, I asked him if he would commit to coming to Congress for more direction before attempting another iteration of net neutrality rules. Mr. Wheeler unequivocally said that he would do so. However, not only did Mr. Wheeler not come to Congress for more direction, at the behest of President Obama, he jammed through the most radical implementation of net neutrality rules ever--a power grab of stunning proportions--and he did so on a purely partisan vote.
The number of 3-to-2 party-line votes on Commission meeting items during Mr. Wheeler's tenure are a clear indication of an FCC Chairman who embraces partisanship over compromise. In just the first year of his chairmanship, Mr. Wheeler forced through more items on party-line votes than the previous four chairs combined. Chairman Wheeler speaks often of his belief in the importance of competition and market forces. Hearing that, one might think he might exercise his agency's powers with a light touch in order to promote the incredible innovation in which our communication sector is capable. Instead, Chairman Wheeler seems more focused on waging partisan battles and accumulating more power while at the same time avoiding accountability to Congress and the American people.
I have come to the floor to talk about the most recent example of Chairman Wheeler utilizing questionable legal authority while simultaneously trying to dodge public accountability. This example relates to the FCC's rules about disclosure of nonpublic information. The FCC's own rules prohibit its employees from disclosing nonpublic information to anyone outside the Commission unless expressly authorized by the Commission or its rules. Nonpublic information includes details of upcoming rulemakings or other actions the Commissioners are still negotiating. These rules are intended to foster the Commission's ability to have honest and fulsome negotiations among the Commissioners and staff and to prevent any special interests from gaining a particular advantage over other stakeholders.
Earlier this year, however, Commissioner Michael O'Rielly wrote a blog post expressing his concerns that Chairman Wheeler was instead using these rules to muzzle other Commissioners. Though Commissioner O'Rielly respected the Commission's rules against disclosing details without authorization to the press or other stakeholders, he pointed out that Chairman Wheeler was freely disclosing nonpublic information whenever he wanted. Commissioner O'Rielly was concerned that this allowed Chairman Wheeler to frame and influence the public's understanding of upcoming issues to his advantage by selectively disclosing information that no other Commissioner is allowed to discuss publicly. Indeed, the Chairman's staff would later tell my staff that Commissioner O'Rielly would not be permitted to correct a factual error stated by Chairman Wheeler if doing so meant discussing nonpublic information.
As chairman of the Commerce Committee, I sent a letter this past March asking Chairman Wheeler to explain whether he discloses nonpublic information to outside groups and how the Commission authorizes the disclosures.
Madam President, I refer my colleagues to the letters with the exchange between myself and Chairman Wheeler that can be found at http://bit.ly/29r76uO.
Chairman Wheeler maintained that as chairman he can unilaterally authorize disclosures of nonpublic information whenever he wants without any need for approval by the Commission, despite the clear prohibition against doing so in the Commission's own rules.
The events surrounding the FCC's March 31 open meeting are a striking example of how the selective leaking of nonpublic information can be used to distort an ongoing debate and turn an emerging bipartisan consensus into a partisan power grab. The open meeting agenda included an order expanding Lifeline, which is a program that has spent billions of ratepayer dollars in an effort to improve access to communications technology for low-income Americans. While the goal of this program is important, unfortunately, it has been replete with rampant fraud for years, which the U.S. Government Accountability Office has recognized on more than one occasion. A compromise on Lifeline between a Democratic Commissioner and the two Republican Commissioners was emerging. This compromise would have included a spending cap to prevent the program from wasting ratepayer dollars. However, it turns out Chairman Wheeler was not on board with this compromise.
On the morning of March 31, Chairman Wheeler delayed the open meeting by several hours, a highly unusual move. During the delay, Politico published a story about the emerging bipartisan compromise, citing ``sources familiar with the negotiations.'' Disclosure of any information about ongoing negotiations right before an open meeting is a direct violation of the FCC's sunshine rules, which protect Commissioners' deliberations.
What happened next is exactly what you might expect. The Politico story spurred outside political pressure against the emerging bipartisan compromise, which subsequently fell apart. Ultimately, the Lifeline order moved forward on a 3-to-2 party-line vote, without a cap or other bipartisan reforms, right in line with Chairman Wheeler's preference. Yet another 3-to-2 party-line vote--forced by the Chairman--thwarting a commonsense and bipartisan compromise. Just last week, 12 States, including my home State of South Dakota, sued the FCC in the Federal appellate court here in Washington, DC, challenging the regulatory overreach of the FCC's Lifeline order that came out at that very March 31 open meeting.
In April, I sent another letter asking Chairman Wheeler to explain the source of his claim of authority to disclose whatever nonpublic information he wants whenever he wants, which was the assertion he made. I also asked a direct question: Did you, Chairman Wheeler, authorize the disclosure of nonpublic information to Politico on the morning of March 31 in advance of the open meeting? Chairman Wheeler responded that his position as chief executive of the Commission empowers him to do anything that streamlines the FCC's work. According to his interpretation, if the Chairman decides on his own that releasing nonpublic information will make the FCC operate more efficiently, he can do it, even though the FCC's rules explicitly prohibit the disclosure of nonpublic information.
I appreciate the role the Chairman plays in the day-to-day management of the Commission, but this appears to be a specious attempt to exempt the Chairman from a very clear rule. Indeed, there is no record the Commission ever intended for its Chairman to be exempt when the agency adopted the rule 20 years ago, and the rule very clearly gives the Commission, not its Chairman, the authority to disclose nonpublic information.
In responding to my April letter, Chairman Wheeler also ignored the question of whether he personally authorized the leak to Politico on the morning of the open meeting. My staff followed up with Mr. Wheeler's staff several times on this matter, and they emphatically stated that Chairman Wheeler refuses to answer this question.
Everyone who cares about government accountability should pause to think about this. Even though Chairman Wheeler claims he has the legal authority to leak whatever nonpublic information he wants whenever he wants, he nevertheless has refused to answer this simple question about whether he indeed authorized the leak on the morning of March 31. Since Mr. Wheeler could have just said no, if he did not actually authorize the leak of nonpublic information, that leaves only two possible conclusions; one, that Chairman Wheeler did authorize the leak but is not confident in his roundabout interpretation of the rules and fears admitting to violating them or, two, Chairman Wheeler simply does not respect the legitimate role of congressional oversight and believes he is unaccountable to the American people.
I would also note that while Chairman Wheeler refused to answer whether he authorized the disclosure, he sought to obfuscate and cast blame by stating it was the Republican Commissioner Ajit Pai who leaked the public information in advance of the open meeting. This shell game is unworthy of a chairman of an independent commission.
Indeed, Mr. Wheeler's attempt to cast blame on another Commissioner only adds emphasis to the overall point I am making; that is, that Chairman Wheeler seeks to use the rule prohibiting the disclosure of nonpublic information as both a shield and a sword. On the one hand, he claims the rule prohibiting the disclosure of nonpublic information does not apply to him, but on the other hand he seeks to shut down criticism and debate from another Commissioner by stating the Commissioner may have violated the rule prohibiting disclosure of nonpublic information. The FCC's nonpublic information rules were intended to facilitate and protect internal communication deliberations. Chairman Wheeler is instead using them to stifle or manipulate the other Commissioners.
Fortunately, the FCC Office of the Inspector General is now investigating what happened on March 31. The IG is looking into who disclosed the nonpublic information about ongoing negotiations among the Commissioners, including any role Chairman Wheeler had in the leak to Politico. I look forward to the IG's findings and expect we will learn the answers to the questions I have posed to Chairman Wheeler, particularly the one question he has refused to answer so far. Taken alone, the Lifeline leak may seem to be just a minor transgression that can be chalked up to business as usual in Washington, DC, but in the case of current FCC leadership, it is just one example out of many that demonstrates a disregard for the limits Congress has placed on the agency's authority.
The regulatory power grabs over title II's common carrier authority and the FCC's recent privacy rule are further evidence that Chairman Wheeler shares the Obama administration's propensity for legal overreach and the intentional circumvention of Congress. In this environment, congressional oversight is more important than ever as a critical check on bureaucratic power. Regardless of who sits at the helm of a commission, such oversight must be pursued, and I am committed to make sure it does.
Former Secretary Clinton's Use of an Unsecured Email Server
Madam President, this week FBI Director James Comey announced the results of Hillary Clinton's email use during her time as Secretary of State. What we discovered was this: As Secretary of State, Hillary Clinton repeatedly mishandled classified intelligence.
Here is what Director Comey had to say:
Although we do not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
That is a quote from FBI Director Comey. Let me repeat that quote. The FBI concluded that President Obama's Secretary of State--our Nation's chief diplomat and the person who is fourth in line to the Presidency--displayed gross carelessness when handling information related to our national security. If Hillary Clinton can't be trusted to safeguard national security information as Secretary of State, she cannot be trusted to protect national security information as the Democratic nominee for President, and she certainly can't be trusted as our Commander in Chief.
There are some who would like to take the FBI Director's speech as vindication for Secretary Clinton, since the FBI Director ultimately did not recommend prosecution, but the FBI Director's statement is no vindication. It is an indictment. The Secretary betrayed the trust the American people had placed in her. She repeatedly lied to the American people about the purpose of the server, what was on the server, and the threat it posed to our national security. Secretary Clinton repeatedly claimed there was no classified information on her server, but the FBI investigation found otherwise.
According to Director Comey, Secretary Clinton sent or received at least 110 emails in 52 separate email chains containing classified information--52 separate classified conversations. And of those 52 classified email conversations, 8 contained top secret information, the highest level of classification, and 36 contained secret information. Secretary Clinton knew she was placing national security information at risk.
The FBI Director said--when discussing the top secret emails transmitted over the Secretary's unclassified email system--``There is evidence to support a conclusion that any reasonable person in Secretary Clinton's position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place'' for top-secret communications.
As a reasonable person, the Secretary unquestionably knew that the proper place for classified information was on a classified server, but she decided to use her personal server anyway.
Secretary Clinton has tried to argue that using a private server in violation of State Department rules did not jeopardize our national security. Even President Obama, in what was a highly suspect public comment on an ongoing FBI investigation, said her private server wasn't a national security threat. But according to the FBI Director, that certainly wasn't the case. Director Comey explicitly stated that it was entirely possible that ``hostile actors gained access to Secretary Clinton's personal e-mail account.'' And he wasn't just referring to ordinary hackers. The Director noted that Secretary Clinton ``used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries'' and that that fact was one that led the FBI to the conclusion that her email account might have been compromised. In other words, it is entirely possible that our Nation's enemies gained access to Secretary Clinton's emails thanks to her decision to use her personal account.
Despite Secretary Clinton's claim that the servers were protected, Director Comey went to great lengths to describe how the servers had substantially less protection than government servers and even had less protection than common commercial servers like Gmail.
Yesterday, Senator Gardner introduced legislation, which I cosponsored, that would remove the security clearance of Secretary Clinton and any of her staff members involved in the mishandling of classified information and block Secretary Clinton from accessing classified information in her capacity as a Presidential candidate. I have to say, unfortunately, that I think that is the right call.
Secretary Clinton has demonstrated that she has no respect for the security of classified information, and she, like anybody else, should face the consequences. As the FBI Director noted, most people who had done what the Secretary did would face consequences for their actions. Other individuals found by the FBI to have engaged in such reckless handling of classified information would, at a very minimum, have their security clearance revoked and would likely face termination. The rules shouldn't be different for Secretary Clinton because she held a powerful position. In fact, those in a position of such great trust should be held to a higher standard, not a lower one. Do we really want to set the precedent that wielding political power places an individual above the law? Boy, I sure don't think we want to go there, but that is exactly what is happening as a result of this decision.
I look forward to hearing what Director Comey has to say in his testimony today before the House Oversight and Government Reform Committee. I hope we will hear him discuss the reasoning behind the decision not to recommend prosecution when the Secretary so clearly displayed, in the Director's own words, extreme carelessness in handling classified information.
I also hope the FBI will release the transcript of Secretary Clinton's FBI interview and other documents requested by Senator Grassley, the chairman of the Senate Judiciary Committee. A Secretary of State mishandling classified information is a grave matter. The American people deserve to know all the facts, and they deserve the truth.
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