[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2016
_______________________________________________________________________
HEARINGS
BEFORE A
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
_______
SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT
APPROPRIATIONS
ANDER CRENSHAW, Florida, Chairman
TOM GRAVES, Georgia JOSE E. SERRANO, New York
KEVIN YODER, Kansas MIKE QUIGLEY, Illinois
STEVE WOMACK, Arkansas CHAKA FATTAH, Pennsylvania
JAIME HERRERA BEUTLER, Washington SANFORD D. BISHOP, Jr., Georgia
MARK E. AMODEI, Nevada
E. SCOTT RIGELL, Virginia
NOTE: Under Committee Rules, Mr. Rogers, as Chairman of the Full
Committee, and Mrs. Lowey, as Ranking Minority Member of the Full
Committee, are authorized to sit as Members of all Subcommittees.
Winnie Chang, Kelly Hitchcock,
Ariana Sarar, and Amy Cushing,
Subcommittee Staff
_______
PART 6
Page
Office of Management and Budget.............................. 1
General Services Administration.............................. 55
The Supreme Court............................................ 107
The Judiciary Budget......................................... 143
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U.S. GOVERNMENT PUBLISHING OFFICE
97-155 WASHINGTON : 2015
COMMITTEE ON APPROPRIATIONS
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HAROLD ROGERS, Kentucky, Chairman
RODNEY P. FRELINGHUYSEN, New Jersey NITA M. LOWEY, New York
ROBERT B. ADERHOLT, Alabama MARCY KAPTUR, Ohio
KAY GRANGER, Texas PETER J. VISCLOSKY, Indiana
MICHAEL K. SIMPSON, Idaho JOSE E. SERRANO, New York
JOHN ABNEY CULBERSON, Texas ROSA L. DeLAURO, Connecticut
ANDER CRENSHAW, Florida DAVID E. PRICE, North Carolina
JOHN R. CARTER, Texas LUCILLE ROYBAL-ALLARD, California
KEN CALVERT, California SAM FARR, California
TOM COLE, Oklahoma CHAKA FATTAH, Pennsylvania
MARIO DIAZ-BALART, Florida SANFORD D. BISHOP, Jr., Georgia
CHARLES W. DENT, Pennsylvania BARBARA LEE, California
TOM GRAVES, Georgia MICHAEL M. HONDA, California
KEVIN YODER, Kansas BETTY McCOLLUM, Minnesota
STEVE WOMACK, Arkansas STEVE ISRAEL, New York
JEFF FORTENBERRY, Nebraska TIM RYAN, Ohio
THOMAS J. ROONEY, Florida C. A. DUTCH RUPPERSBERGER, Maryland
CHARLES J. FLEISCHMANN, Tennessee DEBBIE WASSERMAN SCHULTZ, Florida
JAIME HERRERA BEUTLER, Washington HENRY CUELLAR, Texas
DAVID P. JOYCE, Ohio CHELLIE PINGREE, Maine
DAVID G. VALADAO, California MIKE QUIGLEY, Illinois
ANDY HARRIS, Maryland DEREK KILMER, Washington
MARTHA ROBY, Alabama
MARK E. AMODEI, Nevada
CHRIS STEWART, Utah
E. SCOTT RIGELL, Virginia
DAVID W. JOLLY, Florida
DAVID YOUNG, Iowa
EVAN H. JENKINS, West Virginia
STEVEN M. PALAZZO, Mississippi
William E. Smith, Clerk and Staff Director
(ii)
FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2016
__________
Monday, March 16, 2015.
OFFICE OF MANAGEMENT AND BUDGET
WITNESS
HON. SHAUN DONOVAN, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET
Mr. Crenshaw. Well, good afternoon, everyone. The hearing
will come to order. I thank you all for being here.
Director Donovan, we welcome you to the hearing today. We
know that you have been pretty busy with the pending budget
resolution. We appreciate the time you have given us to be here
to give your testimony and answer any questions.
And the first thing I want to do is say thank you for
having the budget submitted on time. I think that is the first
time since 2010 that has happened, so congratulations. And I
hope that that bodes well for the upcoming budget season.
Now, the OMB has a great responsibility of constructing a
budget that reflects the President's vision for our Nation, and
because of this responsibility, I believe that your agency has
an even greater duty to be judicious and be deliberate with
your own budget request.
Today, I hope not only to have an informative discussion
about your fiscal year 2016 appropriations request, but I hope
that we can dive into some important policies and assumptions
included in the President's overall request for fiscal year
2016.
Since 2010, this committee, under the leadership of the
full committee chairman, Hal Rogers, has carefully worked to
reduce discretionary spending by some $175 billion. However, in
this same time period, we have seen mandatory outlays and net
interest increase significantly. While we have made significant
strides on the discretionary side of the ledger, our long-term
economic and national security interests require continued
deficit reduction and renewed efforts to reduce our national
debt.
And speaking of the debt, our statutory debt ceiling was
reached yesterday, and the Treasury will once again take
extraordinary measures to avoid default. But, at some point,
these extraordinary measures become routine and ordinary. And I
would caution the administration that this routine is not a
comfortable one and remind you that S&P downgraded our
country's credit rating in 2013, in part because of that. So we
expect you to use your influence with the administration to
keep the country from going over the fiscal cliff.
The demographic changes underway in this country mean that
the benefits of Social Security and Medicaid and Medicare
enjoyed today are bills that are going to be paid by our
children and their grandchildren tomorrow. And so, regrettably,
the President's budget does not address the unavoidable
question of how to distribute the economic costs of an aging
population over generations. And to ensure the health of our
economic future, we must rein in out-of-control spending on the
mandatory side of the ledger. And I hope you can explain how
the administration plans to address these looming challenges.
The fiscal year 2016 budget request includes large
increases for both your operating account and your IT account.
Your operating request is a 6.2 percent increase over fiscal
year 2015. And I think you should think about, at a time when
our Nation needs to continue to exercise fiscal constraint and
restraint, that OMB should think about leading by example.
Now, you are also requesting a $15 million increase in your
IT account. And I appreciate the strides the administration has
made to improve the use of IT resources across the government,
increase efficiency, reduce waste, and identify savings. And so
I would like to hear more about your plan to improve the
digital services and prevent the kind of failure we saw with
the rollout of healthcare.gov.
I would also like to discuss the role OMB plays in
strengthening Federal cybersecurity. More and more, we are
seeing threats to our national security via cyber attacks to
our network and to our operating systems, so your role in
guiding and coordinating cyber policy is increasingly
important.
In addition, OMB has a critical task of reviewing all
Federal regulations to ensure that these proposed regulations
keep pace with modern technology, promote the changing needs of
society, and avoid duplicative and inconsistent policies.
And, as you know, Senator Boozman, my counterpart in the
Senate, sent you a letter recently on the Department of Labor's
proposed fiduciary standard, because we believe the SEC should
move first in any rulemaking in order to address the issues of
duplication and any confusion that would surround different
standards of care for broker-dealers and investment advisors.
So we look forward to hearing from you on that timeline of the
proposed rule--as well as public input.
And, finally, let me say that the way that the
administration works with the Corps of Engineers to pick these
so-called new start projects is something that I am concerned
about. Because, after three consecutive fiscal years with no
new starts, the fiscal year 2014 omnibus allowed the Corps to
initiate a limited number of new studies and new construction
projects, but, unfortunately, the administration's
mismanagement of the fiscal year 2014 funds led the need for
this committee to include more stringent guidelines for fiscal
year 2015 funds.
And yet it looks to me like the administration has yet
again disregarded the congressional recommendations and appears
to have used their own budget metrics for choosing new start
projects. And I will ask you a question later on this to shed
some light on the criteria the administration used in the
selection of the four new starts in the 2015 workplan as well
as the new starts for 2016.
So, again, let me thank you for being with us today. I look
forward to hearing your testimony.
And before that, let me turn now to Ranking Member Serrano
for any questions or comments he might have.
Mr. Serrano. Thank you, Chairman Crenshaw. I would like to
join you in welcoming Shaun Donovan, Director of the Office of
Management and Budget, to this hearing.
OMB plays a unique role in preparing the President's budget
and in making sure that agency budget requests are consistent
with the President's priorities. In addition, OMB monitors the
implementation of government programs by reviewing their
performance; coordinates and reviews all significant Federal
regulations; and oversees crosscutting, governmentwide issues
like IT performance and procurement.
In all of these areas, OMB improves the efficiency and
effectiveness of the Federal Government as a whole. Because of
this, your budget request, while somewhat small compared to
other agencies under our jurisdiction, has a wide-ranging
impact.
Your request for fiscal year 2016 totals $97.4 million.
This includes a relatively small increase of $5.7 million to
help ensure you have the personnel and the tools necessary to
meet these numerous responsibilities.
The President's fiscal year 2016 budget, prepared with your
counsel, creates a strategic plan that strengthens our economy
and invests in working families by improving access to early
and higher education as well as affordable health care,
investing in our infrastructure, and partnering with local
communities and business to create good-paying jobs and
affordable housing. I commend OMB for your role in these
efforts.
Additionally, OMB plays a pivotal role in ensuring our
Federal agencies and employees have the resources needed to do
their jobs. Because of the sequester, Federal employees have
had to shoulder a large portion of the budget cuts, and many
Federal workers have sought better opportunities in the private
sector. I am particularly pleased that the President's fiscal
year 2016 budget seeks to end the sequester in order to fund
strategic investments that strengthen our competitiveness in
the global economy.
I am also interested in hearing about the current progress
being made on the implementation of the DATA Act and how this
subcommittee can be of help in providing the resources
necessary in order for OMB to effectively comply with the
statute's reporting requirements.
I hope we will have a chance to discuss all these issues in
further detail today. Thank you for your service and for
appearing before this subcommittee, and I look forward to
hearing about your priorities for fiscal year 2016.
Thank you.
Mr. Crenshaw. Thank you.
Director Donovan, you are recognized for your testimony. If
you could keep that within a 5-minute range, that will give us
plenty of time for questions. The floor is yours.
Mr. Donovan. Thank you, Mr. Chairman, Ranking Member
Serrano, members of the subcommittee. Thank you for the
opportunity to present the President's 2016 budget request for
the Office of Management and Budget.
I want to first thank this subcommittee for its work on
2015 appropriations. Over the last 2 years, you have provided
OMB with resources to halt the furloughs and staffing losses
that threatened our ability to meet our responsibilities at the
high standards that Congress expects. Restoring capacity allows
us to deliver more value for taxpayers through improved program
management, smarter regulations, and more identified
opportunities for savings.
The bipartisan Murray-Ryan agreement allowed for critical
investment in shared discretionary priorities, not just at OMB
but across government, and contributed to stronger growth and
job market gains. That is why the President will not accept a
budget that locks in sequestration going forward and he will
not accept a budget that severs the vital link between our
national security and our economic security.
Instead, the President has proposed a budget that builds on
our economic and fiscal progress and ends sequestration, fully
reversing it for domestic priorities in 2016, matched by equal
dollar increases for defense. These investments are fully paid
for with smart spending cuts, program integrity measures, and
commonsense loophole closures.
The President's request for OMB is $97.4 million, a 6
percent increase over 2015. OMB plays a pivotal part in
executing the President's management, regulatory, budget, and
legislative agenda and ensuring that the Federal Government
works at its best on behalf of those it serves.
The request supports an additional 22 full-time
equivalents, allowing us to deliver more value through improved
program management, smarter regulations, and additional
identified opportunities for efficiencies and budgetary
savings. This includes dedicating resources to new statutory
responsibilities and initiatives that provide critical returns
to taxpayers and are key priorities for this subcommittee, such
as DATA Act implementation, procurement reform, and our open-
data initiatives.
With the request, OMB staffing would still remain roughly 8
percent below 2010 levels.
I would like to highlight one area of investment in support
of the President's management agenda in particular: the need
for smarter IT delivery and stronger cybersecurity across
government.
OMB is requesting $35 billion for information technology
oversight and reform, or ITOR, to support the use of data,
analytics, and digital services to improve the effectiveness
and security of government systems.
Since the inception of ITOR, agencies have reported $2\1/2\
billion in cost savings and avoidance resulting from OMB's
enhanced oversight and reform efforts. OMB and ITOR resources
support OMB's central coordinating role under FISMA to ensure
agencies are effectively responding to cyber events. And, last
year, ITOR was used to pilot the U.S. Digital Service, which
has already saved the agencies millions of dollars and assisted
with many of our toughest digital challenges.
The 2016 request enhances oversight of agencies'
cybersecurity preparedness and expands the central USDS team at
OMB to support standing up digital service teams at 25 agencies
across the government.
Our efforts to help deliver a smarter, more innovative, and
more accountable government extend to our regulatory
responsibilities, as well. The administrationis committed to an
approach to regulation that promises economic growth,
competitiveness, and innovation while protecting the health,
welfare, and safety of Americans.
We continue to make significant progress on the
retrospective review of existing regulations, eliminating and
streamlining regulations to reduce burden and cost. Since 2010,
agency retrospective reviews have detailed over 500
initiatives, saving more than $20 billion in the near term.
This work will continue to be a major focus for OMB.
The responsibilities I have described here are in addition
to the work with agencies to prepare and execute the Federal
budget. And while some people think only about OMB's efforts on
behalf of the President's budget, members of this subcommittee
knows that OMB works with Congress every day to provide
information and analysis and to respond to contingencies and
unforeseen circumstances.
I want to close by thanking you again for the opportunity
to testify today. It is a particular honor for me to serve in
this role given the critical role that OMB plays and the
talented individuals who work there. Supporting OMB and the
work we do to make government perform better for the American
public will continue to be a smart and necessary investment,
and I look forward to continuing to work closely with this
subcommittee to that end.
Thank you. I would be glad to take your questions.
Mr. Crenshaw. Well, thank you.
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Mr. Crenshaw. Let me start the questions by asking--I
mentioned in my opening statement about the Department of Labor
and fiduciary standards. And you know that Senator Boozman and
I wrote you a letter expressing our concerns. We think that
there may be some unintended consequences with the rule that
might harm low- and middle-income folks that are seeking
financial advice regarding their retirement. And I know you are
reviewing that proposed regulation. Let me ask you a couple of
questions about that.
Number one, how can you make sure that we are not going to
duplicate or there are going to be inconsistent regulations
with what the SEC already does?
Number two, will there be an opportunity for the public to
have input into these proposed rules?
And, number three, just give us a timeline. Is there going
to be adequate time--if there is going to be public input, can
we be assured that there is going to be adequate time to listen
to whatever that input is?
Could you answer those three questions?
Mr. Donovan. Sure. And, Mr. Chairman, as you know, when a
rule is pending at OMB, I am limited to some extent on what I
can say about the specifics of that rule.
What I can say in response to your questions is that, first
of all, Department of Labor has specific statutory
responsibilities that are unique in this area. And so it is
important that they move forward on rulemaking but to do it in
a coordinated way. And, in fact, they have had extensive
consultation with SEC, who has provided technical assistance in
this process. And so they are coordinating closely.
Second, we will ensure that there is a chance for input. As
you know, there was an original proposed rule in 2010. There
was significant input there, and there will be an opportunity
for input again on this as the proposed rule is published and
goes through the public comment process.
On the timeline, I can't give you specifics about that at
this point, but obviously we will work closely with you and
this committee to make sure you stay apprised as we move
forward.
Mr. Crenshaw. Well, thank you. This subcommittee also
oversees the SEC, and we will ask them the same kinds of
questions. Because often times at the Federal level there are
overlaps, duplications, inconsistencies. And it sounds to me
like maybe they have started on the right foot to try to
coordinate this, but we will monitor that as it goes on.
Let me ask a broader question, just about your overall
operating budget. In your 2015 budget, as I understand it,
there is money that--you were going to hire 30 new folks by the
end of this year. And in your 2016 request, there is money for
another 22 new hires.
And the question becomes, is that something you can absorb?
I mean, in a 2-year period, you are going to hire 52 new people
as well as replace the people that are working there now that
might leave for whatever reason. Do you know the last time you
hired 52 new employees in a 2-year period, and do you think
that is something you can absorb effectively and efficiently?
Mr. Donovan. Well, it is an important question. And, to be
very specific, as we have been rebuilding from sequestration,
thanks to the investments from this committee, we have actually
hired about 100 people over the last 12 months. Now, a
significant number of those actually account for attrition;
there is natural turnover. But it gives you a sense that we
certainly have the capacity and that we are very focused on
moving forward to hire, given the resources this committee
provides.
And, in fact, since the so-called Cromnibus was passed in
December, that has given us the certainty for this year, and we
have further ramped up our efforts to try to bring on line the
people that the budget you passed for 2015 allows us to hire.
Mr. Crenshaw. Well, because I think you know as well as
anyone that what they call the 302 allocation that we will
receive, 302(b)s, we don't know exactly how much money that we
will have available, but more than likely it is not going to be
a whole lot more money than last year. It could be less than 1
percent. We don't know that yet.
But when you ask for a 6.2 percent increase, you must know
that that stands out in these tough economic times. And maybe--
help me understand why OMB, as a model of efficiency, would
need that kind of increase in today's world?
Most of the members of this subcommittee--in fact, all the
Members of Congress have had their office accounts reduced by
about 15 percent over the last 2 years in an effort to lead by
example. And so I would hope that that is something you
consider, in terms of leading by example, as well.
Tell us what you think about the fact that in these tough
economic times you still need a 6.2 percent increase in your
funding.
Mr. Donovan. Well, let me try to break down a little bit
what that 6 percent would go to.
Almost half of that increase is things like cost-of-living
increases, rent changes that we pay to GSA. So it really is
just inflationary effects on our budget is about half of it.
Most of the remainder is going to implement new
responsibilities that we have. The DATA Act, in particular, is
probably the largest of those--legislation, obviously, passed
on a bipartisan basis last year that we worked very closely
with Congress on and, we believe, can lead to some real
improvements in the way we account for government spending
across the Federal Government. But we are implementing that
now, and it takes significant resources to do that.
But there are others, like cybersecurity--recent
legislation that was passed that increases OMB's authorities
there--that are important that we carry forward; privacy; a few
others, as well.
A smaller share of the remainder is really going to
continue to rebuild some of the capacity that was lost. And,
again, that is, we think, important given the enormous effect
that sequestration had on OMB.
But, to be clear, we are not rebuilding the full capacity.
We have made OMB more efficient. And we would still end up--
even if we got 100 percent of that increase that we have asked
for, we would still end up 8 percent below the staffing level
that we had in 2010. So we think we have been able to find ways
to become more efficient.
Just the last thing I would say on this is that OMB is not
unique. The President has obviously proposed that we increase
investment on the discretionary side. I think you said in your
opening comments, as well, that--I think there is pretty broad
recognition, the real challenges we have in the long-run fiscal
picture are not on the discretionary side of our budget; they
are on the mandatory side.
And so the overall structure of our budget more than pays
for any discretionary increases that we have by lifting
sequestration. We, in fact, not only pay for it; we achieve
$1.8 trillion in deficit reduction over 10 years overall,
largely through changes on the mandatory side and on the tax
side.
Mr. Crenshaw. Well, thank you.
And now I would like to recognize Mr. Serrano.
Mr. Serrano. Thank you, Mr. Chairman.
Director Donovan, you have made it clear that the President
will not accept a budget that reverses our progress by locking
in sequestration.
What do you mean by that? Given your unique viewpoint on
the entire Federal Government, what do you predict would be
some of the severe and negative consequences if it gets locked
in?
Mr. Donovan. Well, first of all, as I mentioned earlier,
OMB saw, both in its own budget and its own agency but also
across government, perhaps better than any agency what the
effects of sequestration were the first time around, whether it
was the furloughs that we had to take at OMB but also at many
other agencies, but, more importantly, tens of thousands of
children who lost their access to early education, tens of
thousands of veterans and others who were made homeless again
by the cuts to programs for homelessness and housing vouchers,
and a range of other areas, as well, cuts to research and
development and other types of investments, education and
training, that are critical to our economic growth going
forward.
And those are the same types of effects that we are
concerned would happen if sequestration goes fully back into
effect again in 2016, which is what would happen if we don't
enact some sort of agreement like Murray-Ryan to lift those
sequestration caps.
Mr. Serrano. Well, my next question, you basically answered
part of it, but, you know, we need you on the record on this.
OMB did take a big hit--8 furlough days, more than anyone
else. How does the $5.7 million increase or 6.2 percent over
the fiscal year 2015 repair some of the damage that has been
done?
And that is our big concern, not--you know, because people
are going to talk about growing the budget. But some of these
situations are not growing the budget; they are just trying to
get back to where you were a couple of years ago.
How could we repair some of it?
Mr. Donovan. Well, for an agency like OMB, where our single
most important asset and the vast, vast majority of our budget
goes toward is our people. They are our most important asset,
where, obviously, our most important job is to provide the
critical analysis and work that the government needs to
function effectively and to save money where it can. And that
is really driven, most of all, by our career staff.
And we did see not only furloughs, but we saw a drop in
staffing to the lowest level in many decades at OMB. Staff
morale dropped. And so we would invest a very small amount in
training and other things to get capacity back up.
But the single most important thing is to restore at least
some portion of the cuts in staffing that we saw. We are
currently 12 percent below the level of staffing that we had in
2010. And even if we got the full request that we have put
forward, we would still be 8 percent below the staffing level
that we had in 2010. So it restores a portion of but not the
majority of those cuts.
Mr. Serrano. Let me ask you a quick question on information
technology. The information technology reform and oversight
program that you implemented, I could go through the details
of, you know, the success stories, and you could tell us about
it very quickly, but my bigger question is: It seems to me that
one of the first questions I heard asked when I got on
Appropriations a long time ago was about how far the Federal
Government was lagging in the whole IT area. Why are we still
having this discussion? You would think by now--is it that
whatever progress we made now has become old progress because
it keeps changing? Or is it that we never made the progress?
Mr. Donovan. Well, I think the good news here is that we
have made progress with the investments that we have made. But
I will also say there is still a significant distance to go.
What we have seen is both the quality of the way government
contracts and implements technology improving, whether it is
just on the basics of acquiring software but also on
cybersecurity. At the same time, we are seeing that costs are
going down, really for the first time, that we have started to
bend the cost curve, if you will, on implementing information
technology. And this ITOR account has been particularly
important in that way.
Just one example. We do now a Portfolio Stat system, we
call it, where we meet with every agency on a regular basis and
go through every one of their significant IT investments and
really examine are they on track or not. And that is done
through a centralized team at OMB in our Chief Information
Officer's office at OMB.
We have achieved, at this point, about $2\1/2\ billion of
savings just through those Portfolio Stat sessions. So it has
been a very important step, I think, one of many steps, in
starting to move toward a much more efficient and effective IT
structure for government.
Mr. Serrano. All right.
Just very briefly, because my time is up--and you might
have answered the question, but I need to hear it again. Is it
that every time we make progress in this area it gets old and
we have to catch up again? Or is it that we never really did
everything we were supposed to do?
Because it seems to me that at times there were folks out
in the community who have better equipment than the Federal
Government has sitting on their desk, you know, in their den or
in the living room. Why is that happening, and how scary is
that?
Mr. Donovan. Well, certainly, in the cybersecurity area I
think is the place that perhaps we ought to be most concerned
about whether we are keeping up. And the truth is that the pace
of change, if anything, has accelerated rather than slowing
down, and, therefore, it constantly requires us to move
forward, to put in place new technologies and new advances.
And that is an area where we have proposed, in fact, across
the entire Federal budget, a significant increase in focus and
responsibilities, not only a 10 percent increase to about $14
billion overall on cybersecurity, but also the creation that we
just announced a few weeks ago of a new--we call it CTIC, Cyber
Terror Information Center, that is really bringing together all
of the intelligence that we have across the entire Federal
Government to make sure that we are staying ahead of whatever
attacks we may be seeing across both the private sector and the
public sector.
Mr. Serrano. Thank you.
Thank you, Mr. Chairman.
Mr. Crenshaw. Thank you.
Mr. Rigell.
Mr. Rigell. Thank you, Mr. Chairman.
Mr. Donovan, I appreciate you being here very much. And I
just noted in your bio that ``Mr. Donovan has committed his
life to public service focused on good government and smart
investment,'' so we are starting out on common ground on that.
So I appreciate your service.
Mr. Donovan. Thank you.
Mr. Rigell. I would like to understand more about what the
President is proposing in this budget as it relates to cutting
inefficient spending. I am really tossing you a softball here,
but I really do want to understand the position of the
administration on spending generally. I sought this office
because of how troubled I am about our Nation's fiscal
trajectory. Walk us through that, and let me see how convincing
you are on this point.
Mr. Donovan. Well, overall, the budget proposes more than
100 different cuts, consolidations, efficiencies. Some of those
are straight reductions or eliminations of programs, but we
have also done a range of things in the budget--for example,
where can we consolidate programs or even entire agencies,
whether it is on food safety or a range of other areas? So I
think we have taken a pretty comprehensive look at where we can
find savings and consolidations that streamline government.
I think, as we all know, what has been the single most
important driver of our long-term fiscal challenges is really
around, as the chairman said at the outset, the demographics
that we are facing and, in particular, healthcare costs.
Mr. Rigell. Right.
Mr. Donovan. And that is an area where the budget is
particularly focused. Not only have we seen the slowest growth
in healthcare costs over the last 3 years that we have seen in
50 years, but the budget goes farther. It includes, for
example, $400 billion in additional reductions to Medicare and
Medicaid as part of a broader strategy to try to make sure that
we build on the improvements that we have seen in the growth of
healthcare costs.
The last thing I would just say is that--you know, we have
talked about discretionary and mandatory spending. We also
believe that we have to take a close look at wasteful spending
in the Tax Code, as well. And so we have a broad range of areas
where we are proposing to make changes to our Tax Code that not
only have substantial savings going forward but also, frankly,
would contribute to our economic growth. Because there are many
places in the Tax Code that they not only aren't producing
revenues, but they are adding to the inefficiency of our
economic picture and with changes could actually encourage
economic growth, as well.
Mr. Rigell. Okay.
I want to change the topic for a moment and then talk about
sequestration. Lifting it, certainly to a great extent, if not
entirely, particularly for me because of its impact on defense,
is a priority.
So I would like to understand, if we are not successful in
that effort--and I am not conceding that we won't be, but walk
through how sequestration would affect your budget at your
office, the office that you are leading there.
Mr. Donovan. Well, I am relatively new in this role. What I
can tell you is the effect that sequestration had in 2013 meant
that we had to furlough a substantial number of workers, we
completely froze hiring. And it meant that OMB was unable to
respond as quickly or as effectively as we should have been to
a broad range of situations, whether it was government shutdown
or a range of other situations.
But I think the more immediate and important impacts of
sequestration can be felt in our military communities. Don't
take my word for it; the Joint Chiefs have spoken out, I think,
very effectively over the last few weeks that our national
security would be put at risk by a return to sequestration.
Mr. Rigell. I share that view.
Mr. Donovan. And, on the other side, I think the President
has also made clear, as has Ash Carter and many others, that we
can't protect our national security simply by investing in the
defense budget. Just to take a few examples, veterans' care is
on the so-called nondefense side of our budget. The Department
of Homeland Security, which is critical to protecting the
homeland, is on the so-called nondefense side of the budget.
So, in many ways, even if you just focus on national
security, the ability to protect the homeland depends on
lifting sequester both for the Defense Department and the
nondefense side of the budget.
Mr. Rigell. Thank you for your testimony.
I yield back. Thank you, Mr. Chairman.
Mr. Crenshaw. Thank you.
Mr. Quigley.
Mr. Quigley. Thank you, Mr. Chairman.
Thanks, Director, for being here today----
Mr. Donovan. Thank you.
Mr. Quigley [continuing]. And your work.
O'Hare Airport, often the world's busiest airport, going
back and forth I think with Atlanta, and O'Hare modernization,
the result of which, while critical to the economic engine
which is O'Hare, has brought in a whole new level of complaints
and noise issues for my constituents.
In the meantime, the FAA has done considerable work
preparing to do a noise metric study, back to 65 DNL,
established some 30 years ago--rather arbitrary, not based on
any scientific data. A lot of new science out there is talking
about the long-term health effects of prolonged exposure to
such noise. But the FAA needs your help, quite frankly, to move
forward for this multiyear study.
Can you tell us where we are on that potential analysis?
Mr. Donovan. Yeah. Congressman, first of all, let me
apologize if there has been some delay in finalizing this
study. We are actively engaged with the FAA in reviewing it, as
we speak, and I am hopeful that we can bring it to conclusion
quite quickly in the next few weeks.
Mr. Quigley. Well, I appreciate that.
So, for people watching at home know, it is not just that
they are going to make planes quieter. It has nothing to do
that, necessarily, off the top. What it can do, though, is
increase the availability, the areas in which noise-proofing is
required for houses and schools and businesses in our
districts, reducing the noise significantly.
Let me switch topics here--transparency in government. We
have a bill that we have introduced that addresses this, but
let me make it relevant to you. Right now, you require
agencies--that they post their budgets and their justifications
on their own Web sites within 2 weeks of submission, I believe.
OMB has a lot of data on its central Web site right now, and I
think you have made great strides in that area.
Budget summaries and numbers are available in a central
location, but the budget justifications, the critical ``why do
they need this money'' portion of the budgets, is still
scattered across hundreds of government Web sites. These
justifications are often not available in any sort of a
searchable, sortable format. Many are in formats, such as a
PDF, that are hard for third parties to easily pull data from
and information.
I think it is important that we have some sort of central
repository for this that places all agency budgets and their
justifications in the common searchable, sortable, and machine-
readable format.
Can you tell me a little bit about your office's efforts to
get this kind of data in one place, in one accessible, usable
format, if possible?
Mr. Donovan. Sure. And I appreciate your focus on this
because it is a very important subject that doesn't get enough
attention, I think, in terms of the ability to make information
available.
For ourselves at OMB, we made a big effort this year to
have, for the first time ever, all of the numbers associated
with the budget available in a way that we made public. And, in
fact, we had some very interesting--I don't know if I would
call them apps, but outside companies, programmers, and others
come in and use that in ways to make the, sort of, Federal
budget understandable in a way that it had never been before.
And we are quite excited by that possibility.
So we are already starting to think--and this is a helpful
suggestion--in terms of other places we might look and where
you think would be most useful going forward for our next
budget presentation. So we will take that as a suggestion that
we could work with your office on and come back to you with
some specifics about sharing the budget justifications more
directly.
I guess the other thing I would say is this is an area
where the President has been particularly focused more broadly
because there is so much government information that we aren't
sharing as widely as we could. And, in fact, that information
can be a huge economic advantage to the U.S. economy. If you
think about weather data, for example, and the way that that
has created whole industries in the United States, it really is
an important part of our Open Government Initiative.
We have put 75,000 data sets out into the public realm
since the President came to office, and that number is
accelerating with recent open government initiatives. And so
this is an area where we would love to follow up and work with
you more closely.
Mr. Quigley. We appreciate that. And our office would be
glad to work with you. Thank you.
I yield back, Mr. Chairman.
Mr. Crenshaw. Thank you.
I would like to now recognize Mr. Womack.
Mr. Womack. Thank you very much, Mr. Chairman.
And, Mr. Director----
Mr. Donovan. Good to see you.
Mr. Womack. And good luck to the Crimson.
Mr. Donovan. Thank you.
Mr. Womack. They have a tall order.
Mr. Donovan. They do. They do.
Mr. Womack. And should they be victorious, they most likely
will meet up with my Razorbacks. Of course, we have to beat
Wofford.
The real winner----
Mr. Donovan. So you are saying you are rooting for the
Crimson, it sounds like?
Mr. Womack. Well----
Mr. Donovan. I think we might be the better choice, given
the alternative.
Mr. Womack. I am going to pass on that one.
The real winner is my chairman down here, though, because
that tournament is being played--that round is being played in
his hometown. So the economy of Jacksonville, I think, is going
to benefit greatly.
I am glad Mr. Quigley brought up the issue of transparency.
I want to talk about that for just a minute and probably for
the time that I have.
In 2009, there was a memorandum circulated regarding the
President's position on transparency, and so I want to kind of
delve into that a little bit and, maybe for my own benefit,
understand. When the agencies across the spectrum submit their
budget requests, you go through it, triage it, and then you
send certain information back to the agencies. I understand
those are called pass-backs; is that right?
Can you walk me through the process real quickly on how
that works; if I am an agency and I send you my budget, what I
get back and how different it might be from what I submitted?
Mr. Donovan. Well, typically, agencies are working over the
summer to produce their initial budget proposals. We get those
around Labor Day. And then we work--and it is a back-and-forth
process. There is lots of interaction and meetings and
discussion with the agencies.
But then typically around Thanksgiving, we would so-called
pass back to the agency a sort of marked up budget with our
response, where we are obviously balancing, you know, funds we
have available and different policy choices between agencies to
make those decisions. And then there is a so-called appeal
period where they would come back to us with any appeals they
have of the pass-back.
Mr. Womack. Well, back to the question of transparency, is
that not a transparent process? In other words, can the public
not track how this give-and-take is going between the agency
and the OMB, back and forth? Is there some way that it could
work better, to put a little bit more sunlight on it so that
people can understand how the end game is actually being
created here?
Mr. Donovan. Yeah, I guess two things I would say on that.
It is a very interactive process over a long period of time, so
I am not--I would have to think about whether there were
particular pieces or moments that would be most useful in the
process.
But I also--there is a longstanding tradition that, sort
of, staff-level interactions, whether it is on the budget side,
the regulatory side, agency decisionmaking, are not public to,
sort of, protect the directness and the, sort of, productivity
of those exchanges.
So we do, obviously, make a lot of pieces public at the
point that there are decisions made, but not all of the
internal decisionmaking and back-and-forth is public. And I
think I would have some concerns about making everything
public, in the sense that it might hamper honest back-and-forth
between the agencies and OMB at times.
Mr. Womack. I know you are kind of new in this, but given
the way this process works, the way you do your budget and the
way we do ours--and we have a Budget Committee markup on
Wednesday--and I do appreciate your testimony before the Budget
Committee earlier--is there a better way to do this?
And are you optimistic that we are going to be able to come
to some kind of agreement? Because the numbers do not really
match up all that well. I mean, we are still not in the same
universe.
Mr. Donovan. Yeah. Well, look, we are anxiously awaiting
what I think we will see on Wednesday, both in the House and
the Senate, the initial budget resolutions.
And I guess I would say what makes me at least somewhat
optimistic is that, on a bipartisan basis, Congress came
together and passed Murray-Ryan, which is really the model that
I think our budget builds on, which is to say recognizing that,
as we have talked about earlier, sequestration is not allowing
us to make the investments that we need to and that in fact
discretionary spending is not the driver of our deficits in the
mid to long term, that we ought to replace sequestration with
smarter cuts and ways to raise revenue on the discretionary and
the tax side, because those are really the places that are
driving our deficits long-term.
And I think what makes me hopeful is that there has been
bipartisan agreement on that, and I think there has been
bipartisan--many folks speaking out, as we just heard on this
committee, on a bipartisan basis that we ought to look at
changing sequestration and making the investments that we need
to.
Mr. Womack. Well, as they say, the devil is in the details,
on how we solve the sequestration issue. I will just say this,
and I have said it before in the Budget hearings, and I will
say it again for the record here: that we are not going to
appreciably change the trajectory of the course we are on right
now unless and until we deal with the mandatory side of
spending. And that is just--mathematically and actuarially,
that is the truth.
Our entire Congress, both sides of the aisle, and in a
bicameral way, is going to have to recognize the true drivers.
I have this one chart, Mr. Chairman, that I refer to a lot, and
I will refer to it when I go home and have my meetings with my
constituency. That piece in the red is the mandatory piece of
spending. And you can see the downward pressure that is having
on all of our discretionary spending.
The issues before us right now have a lot less to do with
discretionary spending than they do with the mandatory side.
And, with that, I will get off my soapbox and yield back.
Mr. Crenshaw. Thank you.
Mr. Bishop.
Mr. Bishop. Thank you very much, Mr. Chairman.
Thank you, Mr. Donovan, for your appearance here.
I would like for you to take just a couple of minutes to
discuss an issue that is heavy on my heart. The House rules for
the 114th Congress requires the CBO and the Joint Committee on
Taxation to adopt dynamic scoring. There are some of us and
many economists who believe that dynamic scoring relies on
uncertain assumptions about certain policy changes.
Can you just take a moment to talk about the downside and/
or the benefits, if you see any, of this change to dynamic
scoring, particularly in the context of the critical analysis
that CBO, the Joint Committee on Taxation and OMB have to
employ in order to save the government money and to create
efficiencies in government?
Mr. Donovan. So I would really say two things about so-
called dynamic scoring. The first is--and I think the biggest
concern that I would have is that it takes what are really
very, very uncertain effects and uses those to score bills in a
way that, frankly, I think, makes the budgeting process less
accurate, less reliable, less precise.
Just to give you one example, CBO at one point--and I would
say, CBO does currently look at, kind of, dynamic effects and
reports on those, and we think that is useful to have that
additional analysis. But it doesn't actually use it to directly
score the bills.
When they did try to estimate the impact of a straight,
across-the-board tax cut, there was such a broad range of
potential impacts that it actually ranged from a negative
impact to a positive impact. In other words, they couldn't even
quite tell whether that straight, across-the-board change in
taxes was going to help or hurt the economy on a macro basis.
And I repeat that to sort of show the depth of the
uncertainty of these effects. And we think, in that kind of
context, it is not a good thing for budgeting to be building
those directly in.
The second thing I would say, and it really follows from
the first, but that dynamic scoring is only looking, typically,
at these effects on the tax side and not on the spending side.
And so, for example, if education or investment in
infrastructure or other things might have impacts on our long-
run economic growth, those are typically not considered or
included, whereas a change on the tax side might be.
So it tends, in the way it is usually implemented, to sort
of tilt the playing field, if you will, towards tax-side
changes and away from other critical investments that we need
to make to help economic growth.
Mr. Bishop. Thank you very much for your thoughts on that.
Can you discuss the increased responsibilities that OMB has
had as a result of the cuts in staffing that you have had since
2010? What knowledge, experience, subject specialties are you
most in need of as you hire new staff? Which program activities
will the new staff be allocated to, and what kind of knowledge
or technical gaps will there be?
Do you have challenges recruiting and retaining employees?
Do you have flexibility to adjust the salaries of starting
employees at a higher pay rate? Can you provide recruitment and
retention incentives like student-loan repayment, for example?
Can you discuss also your diversity efforts in terms of the
workforce in your agency?
Mr. Donovan. So one of the critical things in OMB's request
this year for fiscal year 2016 is our focus on information
technology that I talked about before. And, in particular, the
single biggest area that we are focused on is the
implementation of the DATA Act, which is a new set of
responsibilities for us. It, if implemented correctly and with
the right resources, I think, has the potential to make
government more transparent--where we spend our money, how we
spend our money.
The effectiveness of Federal spending can be significantly
improved if we implement the DATA Act correctly, but it is a
major undertaking. And so what we have proposed in the budget
is additional staff. And, also, a million dollars out of the
increase that we have proposed is for contracting to implement
the DATA Act correctly.
So that is the single most important of the new
responsibilities, in terms of impact on OMB's budget. I would
also point to, though, increased responsibilities and focus on
cybersecurity as an area that is very, very important, as well
as the effectiveness of our digital services.
We have seen, actually--and this really goes to your point
about attracting talent into government. We have been able to
attract some remarkably talented engineers from Google and
Facebook and a range of other leading-edge technology companies
to come in for a couple years to government service. And they
are already dramatically improving the quality of the service
that we provide.
Just to give you one small example, three engineers from
the Digital Service went to work on the Veterans' Employment
Service and their technology at the VA. Within 3 months, a cost
of $175,000, they had done work that the VA had expected to
spend $25 million on over many years.
And that is just one small example of the way this kind of
investment in the staff that really are at the leading edge of
technology could help not only improve government service to
our veterans and many others but also to reduce costs over the
long term.
Mr. Bishop. Mr. Chairman.
Mr. Crenshaw. Thank you.
Mr. Graves.
Mr. Graves. Thank you, Mr. Chairman.
Director, good to see you.
Mr. Donovan. Good to see you.
Mr. Graves. Thanks for being with us today. You have a big
task ahead of you, I know.
I wanted to follow up on some of the chairman's comments in
regards to the DOL fiduciary rule. I know he has been very
active on this issue, and I wanted to share with you a little
bit about my views on it and how it impacts constituents in my
district.
I come from a very modest district, not very affluent
whatsoever. And this is a very important issue, I believe, to
everyone but particularly in northwest Georgia.
And it seems to me that the administration is somewhat
talking out of both sides of its mouth. The President, in one
aspect, is encouraging middle-income Americans to save for
their future, which I wholeheartedly support and think that is
a very good idea, and everyone should be saving for their
future to take care of themselves and their family, but, at the
same time, making it nearly impossible for them to do so by
supporting this rule and making it impossible for small firms
to assist low-income to middle-income families to save for
their future.
That creates a tremendous dilemma. In one aspect, you are
punishing low- to middle-income earners and benefiting the
wealthy. And that is not something that I think is being
embraced whatsoever in my district.
And so folks in my district, they need more than a computer
interface to make their decisions. They really need face-to-
face interaction.
So I guess for us and as a committee and a panel here, what
commitment can you provide to us that will ensure that the
DOL's fiduciary rule does not disproportionately harm low- to
middle-income IRA holders and small businesses throughout the
country?
Mr. Donovan. Well, as I said earlier to the chairman, I am
limited in the specifics that I can go into on the rule because
it is pending at OMB at this point.
Generally, what I can say is it is obviously very focused
on achieving the right balance of making sure that consumers
continue to have access to advice but also protecting them,
frankly, from advice that would harm them and hurt their
ability to save over the long run.
As OMB does with all regulations, we will be looking very
carefully at the cost-benefit analysis to make sure that there
are significant benefits from the rule.
And I would only ask that you look carefully at the rule as
it comes out. I think you will see that we have learned a lot
from the public input that we got on the 2010 proposal and that
the rule, obviously, after we propose it, will be open for
comment, and we will be listening to what the public has to
say.
Mr. Graves. Well, we will certainly look forward to that
followup. And let me just suggest that I think it is really
important that all consumers have the opportunity to have
advice and that that shouldn't be limited nor taken away from
them. And I think citizens have the ability to discern good
advice versus bad advice and that limiting that option
altogether, though, would be harmful to all consumers if they
don't have ability to save for their futures.
If I could follow up on one second point, just going back
to a hearing you had previously--and I know Mr. Womack was a
part of that, and other friends on the Budget Committee. And
you were asked by one of the appropriators, as well, Mr. Cole,
if OMB had done a full economic analysis of the proposed
fiduciary rule.
Where are you in that process of supplying the Budget
Committee and maybe, to some extent, this committee with a full
economic analysis of the rule?
Mr. Donovan. So, again, I am not going to comment on the
specifics of exactly where we are in the process. What I can
say is that, as we publish the rule, as a rule for public
comment, we will have significant analysis of the costs and
benefits that we will make public.
Mr. Graves. So you continue to maintain that there will be
a full economic analysis of the proposed rule when the rule is
submitted?
Mr. Donovan. Like with any other rule, OMB is responsible
for an economic analysis that includes costs and benefits that
we make available and look forward to public comment on that.
Mr. Graves. Okay.
Thank you, Mr. Chairman.
Mr. Crenshaw. Thank you.
Mr. Yoder.
Mr. Yoder. Thank you, Mr. Chairman.
Director, thank you for your testimony today.
Mr. Donovan. Thank you.
Mr. Yoder. I do want to echo my colleague Mr. Graves, and
Chairman--Mr. Crenshaw's comments regarding the fiduciary
standards, and I hope that you will do all that you can to
ensure that we do a cost-benefit analysis, that we ensure that
small- and medium-sized advisors--this doesn't unnecessarily
impact those folks locally who are trying to ensure that my
constituents have every opportunity to invest and grow their
retirement funds, that they don't lose those options, and we
don't actually cut against the very purpose of the stated rule.
So I just echo their comments and hope that you will know that
many of us are concerned about the impact on regular folks at
home and those advisors who are small folks in our districts.
I wanted to also continue the conversation you were having
with Mr. Womack regarding the budget projections, the
administration's plans to cure long-term structural deficits,
and what your thoughts may be on how we can work together to
solve some of the great fiscal challenges plaguing Washington,
D.C. And I think no matter what party you are in, certainly we
have to be aware that our country is in a deep well when it
comes to our national debt, and that it continues to grow. And
I think only in Washington, D.C. would folks pat themselves on
the back when the deficit is only a half a trillion dollars a
year.
We know it has been much higher than that. It was over one
trillion, closer to one and a half trillion when I came into
Congress and many of--Mr. Womack and many others in my class
came into Congress. And so progress may be occurring, but we
are certainly nowhere where we need to be, and it looks like it
may get worse over the next years. CBO's most recent 10-year
forecast projects the deficit will be more than $1 trillion
again before 2025, and the national debt will be over $27.3
trillion.
I have asked repeatedly in meetings at home, and
roundtables, and town halls, how many Americans or how many
people in the room would like to see the deficit go to $27
trillion. Strangely, not one hand goes up. And so the entire
country doesn't like the direction we are taking fiscally in
this country, and don't like the projections that are before
us.
And so I guess when looking at the President's budget
submission and as we get ready to work on ours this week, what
is the administration's position? Does their budget ever
balance, and at what point--in what year does it balance?
Mr. Donovan. So the aim that our budget had, which has been
consistent throughout the President's term, is to meet two key
fiscal tests. First, that we bring deficits below 3 percent of
GDP, which is widely recognized as the right fiscal standard,
and in fact, is well below the average of our deficits over the
last 40 years. Our budget would do that in every one of the 10
years of the window.
Second, it takes what is currently, and you just referred
to this, CBO shows debt increasing as a share of GDP, to
stabilize that debt and start to bring it down over the 10-year
window. Our budget achieves that goal as well. It is a total of
about $1.8 trillion in savings, and it really does it through
three key areas: healthcare savings, which is the single most
important thing that we can do to drive down our deficits long
term; second, looking for ways to change our tax code to lower
our wasteful spending in our tax code; and, third, immigration
reform. In fact, one of our big challenges, to go to the
chairman's point at the outset, is our demographic challenge.
We have over time more and more retirees per worker in the
country, and immigration reform is one of the most important
things we can do to start to rebalance those demographics. CBO
says that immigration reform would save almost $1 trillion over
20 years, and even more in the out years. And so those are the
three key strategies we would pursue.
Mr. Yoder. Well, and I appreciate the President submitting
his budget on time and putting ideas on the table. I do think,
and I agree with my colleague Mr. Womack, that the elephant in
the room, or the issue that is being ignored continues to be
the mandatory spending. And it doesn't just have an impact on
the deficits as they continue to grow. And I notice you say in
a quote just this week, ``The President's budget provides
official projections for spending, revenues, deficit, and debt
with the 10 years, reflecting the President's proposed
policies, including ending sequestration, investing in growth
opportunity, and reducing deficits and debt.'' And I think the
deficits don't--they don't see a reduction in terms of GDP. I
think you may be correct in terms of historic averages, but we
continue to increase that debt nearing $25, $26, $27 trillion.
So even with those sort of rosy projections, I do believe our
deficits continue to grow.
And so I think that is a bit of a misstatement. And it goes
to the point that Mr. Womack is making regarding mandatory
spending. It has an impact just not only on deficits as a whole
and our debt as a whole, but it has an impact on where we
invest. And I note that if you look to the 1960s, we were
spending 32 cents out of every dollar on investments and only
14 cents out of every dollar on entitlements. Yet when you get
to 2030, that number, by some estimates, is 61 cents out of
every Federal dollar. So I think whether you are a fiscal
conservative and you are concerned about the debt and the
interest payments that Americans will be paying, and by some
estimates $1 trillion a year by the end of the next decade just
in interest payments alone, we all should be concerned about
that.
But regardless, if you want to invest in education or
transportation or research, that won't occur when that group of
entitlement spending continues to grow at such a rapid rate.
And so, I would look further in the questioning today and in
the President's efforts to address that topic for your
statements to really take that on because it is something that
we are going to have to work on with both parties.
Mr. Donovan. And let me--I think I was agreeing with you
that mandatory spending is critical, and in fact healthcare
costs and--and really making progress on healthcare costs is
the single-most important piece of bringing down mandatory
spending, and, in fact, I think the good news there is that
over the last few years, because of the improvements that we
have seen, partly due to the Affordable Care Act, CBO now
projects we are going to spend over $200 billion less in 2020
on Medicare and Medicaid than they thought just a few years
ago. And so continuing to push in that direction, particularly
on healthcare spending, is the single-most important thing we
can do----
Mr. Yoder. Well, I think we would all--Mr. Chairman, I will
wrap up my questions here--I think we would all agree it
continues to balloon in an out-of-control way that cannot be
sustained. And so while we appreciate the President's
submission, we have a long way to go, and in order to get
relief on sequestration and in order to invest in other
priorities, we are going to have to still continue to find ways
to reduce our mandatory spending because it is going to impact
everything we do in this town.
And with that, Mr. Chairman, I will yield back.
Mr. Crenshaw. Thank you. And, members, I think we have time
for another question--round of questions if you have them, and
I do. And I would like to start--I mentioned in my opening
statement about the Corps of Engineers and how they do studies
and we call them New Starts, and then your agency is tasked
with choosing which New Starts to move forward with.
And before you got where you are, there had been some
series of mismanagement, in 2014, about which projects were
meeting qualifications, what the standards were. And so this
Appropriations Committee got involved in 2015 and put in what I
would say are pretty reasonable goals and guidelines as to how
you go about picking those projects that are eligible as New
Starts. But it appeared that in 2015 you didn't really look at
all the new guidelines that were put in place and kind of used
your basic budget guidelines.
So tell us how, like, for instance, in 2016 what kind of
standards, guidelines, are you going to use in terms of picking
New Starts?
Mr. Donovan. So just to start, Mr. Chairman, this is an
area where the Army Corps has lead responsibility. We provide
oversight, as we do with most agencies around the Federal
Government, but it really is the Army Corps' methodology and
their decisionmaking. What they are using, and our
understanding, and certainly we could follow up to discuss this
further with you if youwould like, is that they did incorporate
all of the requirements of the law from 2015 in their
decisionmaking.
What they have done is to, given the very limited number of
starts for--pick the projects that provided the highest cost-
benefit return based on the methodology they used. And as I
said, I think--from our perspective, they did incorporate the
2015 requirements as they did those reviews.
So at this point we don't have any plans to have a
different methodology for 2016, but, again, we would be happy
to follow up with you both to discuss this more broadly and
also, as we talked about before, the specifics of how we could
work with the Jacksonville Port to ensure that they have a
project that has the potential to be more cost effective based
on the way the Army Corps looks at it.
Mr. Crenshaw. I just want to be sure--as you point out,
there are a lot of ports around the country, including JAXPORT,
which is my district in Jacksonville, Florida. They rely
heavily on designation as a New Start. And I would encourage
you all, maybe the Corps as well, to--the cost-benefit analysis
is just one of the four or five criteria that were laid out in
the omnibus last year, and want to encourage you to make sure
you look at all of those criteria.
And then also you mentioned the Jacksonville port. Do you,
for instance, give recommendations? Do you give guidance to a
port like that that didn't become eligible for a New Start, as
a how they might better--as you look at the criteria maybe help
them understand where they could do better under those
guidelines?
Mr. Donovan. We would be happy to do that. The Army Corps
is the best sort of place to be able to give that kind of
feedback, but we often will do that with the Army Corps to make
sure that we understand places where it can--a project can
improve in terms of its scoring in cost-benefit analysis.
Mr. Crenshaw. Because that is why this committee set
forward those guidelines, so that they would all be considered.
And we just want to be sure that they are following through on
what this Appropriations Committee has decided to do.
Let me ask you--a lot of people have talked about IT. Mr.
Serrano had a question on this, Mr. Bishop talked about it, and
we have appropriated money so you can have the oversight and
reforms. And by most accounts, the administration has done a
pretty good job. You have had some successes, as I mentioned in
my opening statement, and I was reading that maybe you can
report savings or avoiding over almost $3 billion in IT costs.
But I was reading also this analysis that was done by what
they call the International Association of IT Asset Managers,
and they found that Federal agencies spend about $36,000 per
Federal employee to make sure that all this IT works well, and
the private sector spends about $5,000 per employee. And in
your request you have got $15 million. That will bring the
total for IT up to $35 million. And that is a pretty big
increase. It might be difficult for us to maybe provide you
those funds.
But it is clear that just spending more money, you would
know, we all agree, just spending more money doesn't solve the
problems. And you have talked a lot about the bright smart
people you have coming, but if you look at the numbers, you are
asking for 71 additional staff. That is a huge increase. I
mean, you have got 41 people, as I understand it now, and so
you add 71, you have had a 200 percent increase in the
staffing.
And I know you have responsibilities, but if you are
finding these bright smart folks that can come in, then do you
really need all that many people, if you can find bright smart
people, that that might be better than having a whole lot of
people that aren't as bright and smart as that handful that you
are looking for. So tell us about that. Because that is a
pretty big increase in--and I know you are doing better, but
200 percent in one year, that is a lot--that is a big increase.
Tell us about that.
Mr. Donovan. Well, first of all, what I would say is I
think it is very important to look at this in perspective of
the over $80 billion that we spend a year in the Federal
Government on IT, and frankly, the thousands and thousands of
people who work on IT across the Federal Government.
What we are talking about, because you are looking at it
just as part of this sort of ITOR category, it is a substantial
increase. We think it is justified because the early results
from what we have been doing on ITOR have had real positive
impacts and much bigger cost savings. I talked about this USDS
example, $25 million in savings from $175,000 of time and
investment spent by the team. So we actually think this can
have a big, big impact on savings. And, in fact, we have
already started to see, if you look at contracting costs, those
costs start to come down, really, for the first time in more
than a decade. And so I think we are making progress in those
places.
One of the things, frankly, that we have learned and that
we are starting to implement on the IT side, that we have
learned from the private sector, is the way that they manage
their IT. And part of the problem, frankly, is that we act too
much right now like many, many different agencies as opposed to
one Federal Government. The number of licenses we have on
particular software products, the way that we buy our hardware,
whether it is, you know, laptops or desktops or hand-helds, we
buy them often with multiple contracts across many agencies as
opposed to a single Federal Government, where we can really get
the economies of scale. And so one of the things that we are
implementing with these new resources would be a significant
expansion of what we call category management.
It is a strategy that the private sector uses extensively.
In fact, the U.K. Has recently put it into effect. They are
already saving between 10 and 15 percent on their contracting
costs in IT. And we think it is a very promising direction to
go, to take what we are currently doing and expand it
significantly. We would be happy to talk to you more about the
specifics of that, but we really do think we have the potential
to drive the way the Federal Government uses IT to a much
better place much closer to the private sector with these
investments.
Mr. Crenshaw. Well, as I asked you earlier about the--on
the operating side you want to hire 52 new people in this 2-
year span. Here you are going to hire 71 new people in 1 year.
Is that possible? Can you go find 71 folks that--in a year that
are going to do the things you need to do?
Mr. Donovan. Well, the large majority of those would be
through this digital service model, where they are coming in
for 2 years. And what we have seen, frankly, and we have--we
could show you a list of names at this point, the demand is--
surprised even us, and this is why we felt like we needed to
jump on it. Because we have been able to do extensive
recruiting, and to really get fantastic talent from tech
companies, this felt like an opportunity to scale it up quickly
because of the interest that we are seeing.
Mr. Crenshaw. Thank you.
Mr. Serrano.
Mr. Serrano. Thank you, Mr. Chairman. In fiscal year 2015,
the omnibus incorporated report language directed funds be made
available for additional permanent staff within the Office of
the Intellectual Property Enforcement Coordinator. This was
done to address a concern that especially in periods such as
the one we just experienced, when there is no confirmed head of
the office in place, important work like coordinating voluntary
efforts to reduce online copyright infringement goes by the
wayside.
What progress have you made in staffing up this office?
This was a concern of this committee last year.
Mr. Donovan. Well, I am very happy to report that Danny
Marti, our coordinator, was confirmed by the Senate last week,
and I don't actually have a start date for Danny. I don't know
if anybody else does, but we are hoping he starts very quickly
to be able to lead that office.
We also do have included in our request for 2016 a very
small number of staff for that office to be able to increase
the focus that we have on privacy issues. Obviously, the work
that we have both on infringement of intellectual property, but
also protecting the privacy of that property is very, very
important. And that is an area where we think we need to focus
as well.
Mr. Serrano. Now, are you getting a pushback from anywhere
in private industry or any other place or in government itself,
in order to carry this out? Because this is a very important
task.
Mr. Donovan. It is. And Congressman, as you know, there can
be tensions in the steps that we take to protect Americans,
whether it is on cybersecurity or in other areas, and
authorities that may--law enforcement agencies may wish to
pursue with our efforts to balance that with protection of
privacy for American citizens, for our companies, and
otherwise. And so this is an area where we are constantly
looking at and making sure that--and this is one of the reasons
why OMB's role is so important as we sort of--our classic role
is to have oversight and sort of to balance the industry--the
interests of agencies across the Federal Government. This is an
area where we do have to sort of work through the potential
conflicts that there may be between security and privacy at
times.
Mr. Serrano. Let me ask you a question that may not affect
you at all, but maybe you could give the committee a sense of
where this is going to play out or how it is going to play out.
For over 50 years we have had this policy on Cuba which
seems to be thawing now, and I certainly have been on the side
of ending it totally. One of the issues that doesn't get any
attention is the fact that for over 50 years people have been
dancing in this country and singing songs, and other artwork
has been looked at that has been put together in Cuba years
ago, and not a penny because of the relationship in royalties,
went to any Cuban artists or their estate or their relatives or
whatever. Is that something government will be involved
eventually if somebody lays a claim to that? Or is that the,
you know, ASCAP and the Association of Songwriters and
Composers? Because every time you hear Mambo Kings or whatever,
watch it on TV, no one got a penny in Cuba for that money--or
for that music.
Mr. Donovan. You know, it is a fascinating question. I am a
big fan of the Buena Vista Social Club and a range of other
sort of rediscovery of Cuban music. But the truth is I honestly
don't have a clear answer on that. What I would love to do is
get back to you.
More generally, I can say that a lot of our efforts on
trade, for example, are focused on trying to make sure that
there are enforceable protections for our intellectual property
in other countries. And so I would definitely imagine that this
will be a focus of our negotiations and discussions going
forward, but I can't tell you specifically the effect on music.
And I would be happy to ask my staff to follow up and figure it
out and get back to you.
Mr. Serrano. Sure. And the part I would like to know is
really will government play a role--will our government play a
role at all or will this be left over to the, you know, to the
music associations and so on--because we are talking about a
lot of money.
Mr. Donovan. Yep.
Mr. Serrano. A lot of money going into the Cuban economy,
if you will. Anything new that you can tell me on that note?
Mr. Donovan. March 23 Danny Marti will be starting as our
intellectual property enforcement coordinator.
Mr. Serrano. That is great.
Mr. Donovan. Exciting news for us.
Mr. Serrano. That is great.
Let me just ask you a question. On OMB's retrospective
regulatory review of look-backs has created a savings of more
than $20 billion and calculated net benefits of $200 billion.
Tell us more about this work, because this is an area where
there are large numbers, and it seems like a small question,
but the numbers indicate that it is a more important question
than we would think.
Mr. Donovan. Well, early on in the administration the
President asked OMB, and specifically our Office of Information
and Regulatory Affairs, OIRA, to work with agencies to take
outdated or ineffective regulations, either take them off the
books or change them so that we could save money for American
consumers or businesses, State and local governments, and
improve the way regulation works. And what we have seen out of
that is about 500 different completed initiatives from agencies
that, as you said, in the short run saves about $20 billion and
over the longer run substantially more than that.
Since I started last summer, we have redoubled our efforts
on that. We have engaged with all the agencies across the
Federal Government. We have also gone out to stakeholders and
asked them the places where they think we could make the most
progress on this regulatory look-back. And we are finding,
whether it is things like improving the lives of truckers
across the country by limiting their paperwork and the way that
they have to report, to a range of other areas that in
individual terms may not be huge things that will end up on the
front page of newspapers, but when you look at them all
together, they are having a real impact on the everyday lives
of Americans.
And I think this is something the President is very excited
about, and we are going to--you will see more of this,
literally, in the coming days. We will have more reports out
from agencies on the next stage in this regulatory look-back to
improve the way we regulate.
Mr. Serrano. That is great.
So Chairman, let me end by making more of a statement than
a question, although I want you to keep it in mind, Mr.
Director.
But going back to Cuba again, another issue that is really
important, in my understanding, and I have no documented proof,
is that when we broke relations over 50 years ago, there were a
couple hundred if not over 1,000 Cubans who went daily to work
at Guantanamo base, and then they would come back into the
other Cuba, if you will. Most of those people, or a lot of
them, might be dead. Some may be alive. Some spouses may be
alive. Something tells me these were Federal workers.
Obviously, they worked for us. Something tells me not a penny
of pension was ever paid, you know, and this is again another
issue that as we begin to thaw out this relationship, so that
we may have to pay attention to all of these things because
there are a lot of dollars that was supposed to be in Cuba that
are not there now. And I know a lot of people will oppose that,
saying: Oh, no, no. Not a penny, but, you know, why do I
suspect that not a single person got a pension from the Federal
Government after we broke relations? Keep that in mind.
Thank you.
Mr. Crenshaw. I think there is a lot of unanswered
questions about that whole issue, including the claims that a
lot of folks have against the Government of Cuba.
Mr. Serrano. Exactly.
Mr. Crenshaw. So that will all, I am sure, get washed out.
Mr. Womack, do you have any other questions?
Mr. Womack. Just a couple of final things.
First of all, Director, thank you again for your testimony
today.
I want to talk about the do-not-pay portal for just a
moment, designed to reduce and eliminate improper payments--I
think it is a great idea. Frankly, I am a little surprised that
more people are not talking about it. I know it is low-hanging
fruit, but I think it is a step in the right direction for the
office.
Regarding do not pay, I understand that it has not received
guidance on contracting with third party private-sector
businesses. Is there a reason that is taking so long?
Mr. Donovan. To be honest, I am not--I can't answer that
question directly. I would be happy to work with my team and--
--
Mr. Womack. I would like to have----
Mr. Donovan [continuing]. Get back to you, yep.
[The information follows:]
As a matter of copyright law, foreign songwriters whose music is
played on over-the-air broadcasts in the United States, for example,
are generally entitled to be paid for those performances. These
payments may be collected by collective management organizations (CMOs)
in the U.S., and with respect to foreign rights holders, those funds
may be distributed via reciprocal arrangements with a foreign-based
collective management society. We understand that there is at least one
such group in Cuba. As a result of the present day embargo on Cuba,
however, it is our understanding that U.S.-based CMOs may not be able
to enter into reciprocal agreements with their Cuban counter-part(s),
and vice-versa, and as a result, rights holders in both countries may
face certain difficulties in effective licensing and royalty collection
at the present time. As our relationship with Cuba evolves, and trade
normalizes over time, we will need to review how the systems work and
how best to support reciprocal arrangements for the effective licensing
of music between the U.S. and Cuba.
Mr. Womack. I would like to have that. And then finally,
early in your testimony when discussing sequestration, and we
all have our opinions about sequestration, but you made a
comment that just kind of sticks with me. You said, and if I
didn't understand this right please correct me, but you talked
about how from a personnel standpoint the office became much
more efficient, that you learned to practice some kind of
efficiency. That is kind of what stuck in my head. And I assume
that was regarding Federal agencies across the spectrum, or
maybe it was just confined to OMB, I don't know.
But if that is true, then how can we be so against a
concept like the Budget Control Act that was designed to
account for the raising of the debt ceiling and to cut dollar
for dollar certain types of Federal spending? Why did it take
sequestration to force the Federal Government to practice
efficiency? As you know, I am an ex-mayor, and every day that I
went to work as mayor I looked for ways to force the people
that worked within the city's infrastructure, that I had
jurisdiction over, to find a way to do the things that we were
supposed to do and get the very best value for it.
Now, I know the Federal Government is a much bigger entity
than the city of Rogers, Arkansas, but why did it take
sequestration to force the Federal Government to practice
efficiency?
Mr. Donovan. Well, I guess if I either said that or implied
it through my comments, then it wasn't what I intended, because
I think my view would be that the opposite is true, that the
problem with sequestration was that----
Mr. Womack. Well, you said that you learned through the
sequester, that first year of sequestration, before Ryan-
Murray, that you learned--the Federal Government learned to be
more efficient from a personnel standpoint.
Mr. Donovan. I think over a number of years we have found
places within OMB to be able to make adjustments and to be more
efficient in certain areas. We have other areas where we have
grown and we actually need to grow because we have greater
responsibilities. I think the problem with sequestration is
that it was these kind of mindless across-the-board cuts as
opposed to smarter cuts.
In really picking areas to focus on, that we should be
growing, and other areas that we should be shrinking, and so
the effects that we saw directly from sequestration really were
to cut things that made sense to cut and cut things that didn't
make sense to cut, and in fact, more of the latter rather than
the former. And so I think the impacts that we saw--and I can
certainly talk about it from the HUD point of view was, you
know, veterans ending up back on the streets even though we
knew that was going to cost us more money in the long run and a
range of other things that really were both--had bad human
consequences but also bad fiscal consequences.
I think the right way to make cuts is to do it in a
measured, thoughtful way that really, you know, takes out of
the system inefficiencies. But the problem with sequestration
is that it was not that kind of approach. It was kind of this
across-the-board approach that really did hurt the government's
ability to function effectively.
Mr. Womack. Well, to that, we will agree. I am a big
believer that the sequestration is a mindless approach, a lazy
man's way to effect some kind of budgeting outcome when it
should be a much more targeted, much more thoughtful, much more
tactical approach to cutting spending.
But I will say this at the risk of sounding like a broken
record--I continue to say it over and over again--if we think
that we are going to--if our goal is to convince the American
public that we are going to achieve some kind of fiscal sanity,
if you will, only on the discretionary side of the budget, the
public is going to be terribly misled, we will woefully
disappoint them, because it simply is not going to happen under
the construct that we have today.
And with that, Mr. Chairman----
Mr. Donovan. We can agree on that as well.
Mr. Womack. And I thank the director again for his
testimony here today.
Mr. Donovan. Thank you.
Mr. Crenshaw. Thank you. And Mr. Serrano, I think, has no
further questions. I don't have any further questions.
So we want to thank you for taking the time to be here.
Thank you for your testimony. And you have got a big job, and
we wish you the best as we go through this appropriation season
and the budgeting season, and again thank you for your service.
This meeting is adjourned.
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Tuesday, March 17, 2015.
GENERAL SERVICES ADMINISTRATION
WITNESS
DENISE TURNER ROTH, ACTING ADMINISTRATOR, GENERAL SERVICES
ADMINISTRATION
Mr. Crenshaw. Well, this meeting will come to order. I want
to welcome everyone. And just to let you-all know, this is a
busy time for the appropriators. I just came from a Defense
Appropriation Subcommittee hearing, which is still going on,
and I imagine a lot of the members on both sides of the aisle
are in the middle of other meetings, so they may be coming and
going during our time together, but we will see.
But I want to wish everybody a happy St. Patrick's Day. I
think everybody is somewhat blinded by the green tie that my
ranking member is wearing.
Mr. Serrano. O'Serrano.
Mr. Crenshaw. O'Serrano. Welcome everyone. I want to
welcome Acting Administrator Roth to the hearing today. You
have been on the job now for a little less than a month?
Ms. Roth. Yes, yes.
Mr. Crenshaw. But who is counting? We are happy to have you
before the subcommittee today.
Ms. Roth. Thank you, sir.
Mr. Crenshaw. The General Services Administration is often
referred to as the Federal Government's landlord, but the GSA's
mission goes well beyond providing office space and managing
property. Agencies across the Federal Government rely on GSA to
assist in their procurement and their acquisition needs. They
depend on the GSA to deliver effective and economical
technological solutions, and in a time of shrinking budgets and
scarce resources, we think your role is all the more important,
and we on the committee expect you to be a leader in finding
savings and driving efficiencies in your own budget.
The subcommittee has pressed the GSA to make better use of
its existing portfolio of buildings and shrink the Federal
footprint through a reduction into GSA's inventory of leased
and owned land. Now, you know, in the last several years, we
have seen a reduction in staffing across the Federal
Government, so it follows that we should see a reduction in
space requirement. The 2015 omnibus provided you with $70
million for space consolidation activities, and I look forward
to hearing from you today on how you intend to use the funding
to shrink the GSA building inventory, particularly in regard to
the many vacant and underused buildings in your portfolio.
Now, your 2016 request has an increase of 1.13 billion over
fiscal year 2015 in the Federal buildings fund, and that is
$560 million more than the rental payments that you receive. I
understand you want to provide a level of service that your
customers are paying for, but a 12 percent increase to
construct new buildings and perform maintenance may be a little
bit unrealistic in these difficult fiscal times. We have a
responsibility to the American taxpayer to be judicious, and
deliberate, and that is their tax dollars, and so we want to
make sure that you only budget for the highest priority
projects and not merely match your budget with the level of
rent that you collect.
Remember, the Federal Government is your customer, but your
investor is the U.S. taxpayer, and your job is to be as good a
steward of the taxpayer dollars as you can. This is the first
time in many years that GSA has submitted a 5-year capital
investment plan, and I think that is an important step forward
in managing the portfolio in a more prudent and productive way.
That will provide more transparency to stakeholders and
taxpayers, and I am curious to learn about what additional
benefit you believe is derived from requesting an advance
appropriations of nearly $10 billion for fiscal year 2017.
So once again, welcome to you, Acting Administrator Roth,
appreciate your service, and look forward to your testimony. So
now I would like to recognize the man in the green tie, Mr.
Serrano for any opening statement he might like to make.
Mr. Serrano. My tweak this morning, Mr. Chairman, was that
growing up in New York, I learned one thing, that on this day,
we are all Irish. So that is a big party down there as you know
and everywhere else.
Thank you, Mr. Chairman. I would like to join you in
welcoming the Acting Administrator of the General Services
Administration, Denise Turner Roth, before our subcommittee.
With the recent departure of GSA Administrator Dan Tangherlini,
the GSA is entering a time of transition, and Ms. Roth is
leading the way.
The GSA has undergone significant change in the past few
years. Some in response to scandal, and some in response to the
changing needs of the Federal Government. The budget request
for the General Services Administration in fiscal year 2016
attempts to continue these changes while providing some much-
needed investment in federally-owned facilities around the
Nation. This year, GSA proposes significant new construction
and repairs and alterations, including several significant
repair projects in my hometown of New York. However, this new
construction pales in comparison to the amount spent on the
rental of space by the Federal Government. As many of you know,
I have concerns about our efforts to ensure a better balance
between leased and owned properties, so I hope to discuss this
with you further today.
However, GSA is not just asking for appropriations for this
fiscal year. The request also asks for significant advance
appropriations which this committee has found problematic in
other areas in the past. Given the current climate here, I
think it will be difficult to fulfill that request. I would
also be interested in discussing with you the ongoing problems
that the Puerto Rico Federal Courthouse project in San Juan has
been experiencing with their renovation project. I know that
there have been efforts to get the project back on line in
terms of the timeframe and cost, but I remain troubled that
this project has gotten so off track.
Lastly, I would be remiss if I did not mention the specter
of sequestration that is once again looming over us. GSA was
badly hurt by sequestration last time, with significant
construction and repair projects left languishing. This in turn
hurt private sector job growth since many companies that
otherwise would have contracted with the Federal Government
were unable to do so.
I hope that we can find a sequester solution that avoids
these harsh problems and continues our economic growth. As I
said last year, GSA is the Federal Government's landlord,
architect, facilities manager, procurer, and supplier. In all
of these diverse roles, GSA plays a critical role in ensuring
government efficiency and effectiveness. I look forward to
discussing how your fiscal 2016 budget accomplishes these
goals, and I know you have all our answers gathered in this
last month.
Ms. Roth. Yes. Thank you.
Mr. Serrano. Thank you. Thank you, Mr. Chairman.
Mr. Crenshaw. Thank you. And so Acting General Services
Administrator Roth----
Ms. Roth. Yes.
Mr. Crenshaw [continuing]. We look forward to hearing your
testimony. If you could keep it in the range of 5 minutes. Your
full testimony will be submitted for the record, but the floor
is yours. Welcome.
Ms. Roth. Thank you, sir. I appreciate being here. Good
morning, Chairman Crenshaw, Ranking Member Serrano, and members
of the committee. My name is Denise Turner Roth, and I am
honored to be here today serving as the Acting Administrator of
the U.S. General Services Administration. Over the past year, I
helped implement many of the changes and reforms. We have
refocused GSA on its core mission. We remain committed to
delivering the best value in real estate, acquisition, and
technology services to the government and the American people.
In participation with you, I will remain dedicated to
building on the progress GSA has made. While we are proud of
our progress, GSA still faces significant challenges. For the
past 5 fiscal years, the vital link between the rent GSA
collects and the amount GSA can reinvest into our assets has
been broken. To properly maintain the Nation's public buildings
and to make critical infrastructure investments, we need to
restore this balance.
Today I would like to highlight GSA's efforts to provide
greater transparency, efficiency, and savings through the
commonsense investments proposed in GSA's fiscal year 2016
budget request. We have developed a long-term plan for
investment that outlines priorities for renovations and new
construction, including courthouses and land ports of entry.
These projects are spread across the Nation covering 32 states
from Florida to Alaska. However, executing this plan is not
possible without stable funding. GSA's fiscal year 2016 request
allows us to start delivering on this long-term capital plan.
In addition, we have a request for advanced funding of the
Federal Buildings Fund for 2017. We are also requesting to
invest $564 million from previous rent collections in support
of our infrastructure priorities. In fiscal year 2016, GSA is
particularly focused on upkeep and renovations in our existing
inventory. Unfortunately, GSA's major repair and alterations
accounts have also suffered from significant cuts over the past
5 fiscal years. As a result, the backlog of repairs needed
continues to grow while the cost and urgency of these repairs
continue to increase.
GSA is also requesting funds to deliver critical new
investments. For instance, GSA is requesting $380 million as
part of the enhanced plan for the DHS consolation at St.
Elizabeth's. This funding will allow DHS to move out of costly
leased space and into consolidated offices on the campus. GSA
fiscal year 2016 and 2017 requests would allow us to meet DHS'
mission, needs, and stay on track to complete the facility.
This budget also requests more than $250 million for our
appropriated accounts, as well as $13 million to begin
preparing for the next presidential transition.
While GSA seeks to make the investments vital to America's
future, we also continue to focus on executing reforms to
improve oversight, streamline administrative functions,
strengthen accountability, and enhance transparency within our
agency. Our inspector general--in partnership with our
inspector general, we will continue to maintain our vigilance
and take whatever actions are necessary.
The men and women of GSA have made great progress in
refocusing this agency on its important mission. The
President's fiscal year 2016 budget request will allow GSA to
continue our work and give our partners and the American people
the services and support they need. I look forward to working
with this committee to continue our progress.
Thank you for the opportunity to appear before you today,
and I am happy to answer your questions.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Crenshaw. Well, thank you very much, and let me start
the questions with a question about the Federal Buildings Fund.
You know, you talk about spending all the rent that you
collect from Federal agencies, and you have got a long list of
construction projects. In 2014 and 2015, we gave you a lot of
money. Now in 2016, when you request 1.1 billion more than you
received last year, and that is $564 million more than the
rental payments you take in, that is a big, big increase. I
want to find out how you prioritize projects--how do you decide
which projects you want to do when you say we would like $1.1
billion more than we got last year? What goes into your
thinking when you prioritize projects that go on your list?
Ms. Roth. In terms of our budget request overall, and as we
talk today, I think you will hear this as a consistent theme.
We are looking at our portfolio both in terms of what we are
tasked to manage, both what the needs are today as well as what
we look at going forward. And so we think that this budget
request really represents where we are in terms of where the
capital needs are and how we will manage going forward, and
that also explains the 2017 advance appropriations request,
because our effort and our focus is how are we making the best
decisions today to help to manage them and plan for the
portfolio going into the future.
Certainly, our process in terms of how we decide what
projects go on the list and how we prioritize them is based on
a number of things, but not the least of which includes what
the market conditions are, what the returns are on those
potential investments, how ready the project is to go forward.
And you mentioned consolidation, lease consolidation and the
ability to reduce the cost we are paying in lease payments is
something that is an important factor that we weigh as well.
Mr. Crenshaw. Well, in 2014, you had an increase of $1
billion. In 2015, it was another $1 billion for new
construction repairs. How do you handle those large increases?
Ms. Roth. I think that we have done a good job trying to be
clear on what projects are coming forward and how we are
utilizing those dollars to help with the portfolio that we are
managing. So that projects that you are familiar with in terms
of DHS, that has been important with the committee support for
us to be able to move forward with. That effort is just an
example, and certainly the list goes on. But in terms of how we
use the funds, our focus is really working with the committee
to understand what the funding levels are and ensuring that we
use those funds to the best of our ability to manage the
portfolio.
Mr. Crenshaw. Do you kind of say this is our rental income,
so we will just spend it all as opposed to saying what are our
real priorities, and then, do you ever think about actually
reducing rents? I mean, I want to be sure that it is not just
``here is our money, so we will spend it'', as opposed to
saying ``here are our priority projects and we will fund
those'', and then we look at the rental income and maybe it is
more, maybe it is less, and maybe there are things you can do
there. Does that enter into your thinking?
Ms. Roth. Well, the truth of the matter is the inventory
and the portfolio itself of assets that we manage are
extensive, and so there are probably more needs than we can
fund in 1 year, and so the needs just continue to grow, either
from past repair needs or needs that are coming forward. So it
is not so much the, okay, we have this dollar level and so
let's find projects until we meet to that level as much as here
are all the needs, and ultimately having to meet those needs.
I understand the committee has a job to do, and at the end
of the day, what we are trying to bring forward is a full
understanding of what the portfolio needs are, how we are
trying to plan for those needs and where we are going and
trying to be clear and transparent about if we receive dollars,
how we are utilizing them and what the expectations are.
Mr. Crenshaw. Gotcha. Thank you. Mr. Serrano.
Mr. Serrano. Thank you, Mr. Chairman. As I mentioned in my
statement, Ms. Roth, sequestration had devastating effects on
GSA in 2013, and that specter looms over us once again. The
President's budget assumed that Congress would deal with
sequestration and continue to make investments to ensure the
continued growth of our economy. If Members of Congress truly
support construction jobs and seek economic benefits from
Federal projects, then they need to look no further than GSA.
What would be the effect on your agency if Congress does not
turn off sequestration?
Ms. Roth. Well, sequestration certainly has an impact on
overall levels that are available for funding, and so when
agencies' budgets have been reduced or compressed in terms of
their funding levels, we see an impact in terms of the funding
that they are able to either augment as a part of a project or
be able to enter into projects.
In the past, some of our efforts have helped or tried to
help with these efforts such as our ability to help with
furniture in IT within space, but ultimately, with all of the
projects, as funding is--as the pressure created at the top, it
definitely pushes down, and we feel that as a response.
Mr. Serrano. And so you are telling me that you deal with
it as it comes, but you don't--there is no panic right now at
GSA that a continued sequestration would devastate, like some
agencies feel would devastate them, because there are agencies
that come before us, and tell us we can't take another year of
sequestration.
Ms. Roth. Well, and I think what we see is that, as
agencies have that pressure, this space becomes less of a
priority, and the reality is, with--as we get people into
better space as well as consolidate leases, we do see true
dollars in savings, and that is a return. So while we are
basically responding to the needs as well as trying to manage
our portfolio with our funds, but the funds that we receive,
the Federal Buildings Fund itself is not necessarily compressed
by sequestration, but the ability and activity levels of the
other agencies does have an impact on the choices they make and
in the work that we are doing.
Mr. Serrano. Right. Let me ask you about the Puerto Rico
courthouse that I mentioned before. GSA began work to modernize
the Clemente Ruiz Nazario Courthouse in 2010. This project has
been plagued with delays that have interrupted the day-to-day
business at a busy Federal courthouse that is critical to the
functioning of the criminal justice system in Puerto Rico.
In October 2014, I wrote to the then-administrator
highlighting my concerns with the management of this project. I
received an agency response from Associate Administrator Lisa
Austin, that frankly left me unsatisfied that GSA has a plan to
move this project to fruition.
Ms. Roth, what is the timeframe to finalize the scope of
the project with the new contract? And let me make the
statement I make at all hearings, and the chairman hears it all
the time. No matter how much people tell us they treat them
equally, the territories are treated differently. You know, in
many cases they get what is left over in the Appropriations
Committee, and it is always a battle. I hope GSA, which
functions a little different than other agencies, doesn't get
caught up in the same thing. These are American citizens living
under the American flag with a Federal courthouse. Notice I
didn't say a Puerto Rico courthouse, a Federal courthouse,
which means it is part of the family, and sometimes it is just
forgotten, Virgin Islands, Guam, Samoa, and all the rest.
So while I ask for a question on the issue in general,
specifically I always put in the fact that territories should
be treated equally, notwithstanding the fact that they are not
States. That is another issue. That is about voting in
presidential elections. That is about Members of Congress. That
is not about sharing from the American resources.
Ms. Roth. Yes, sir. And our focus and intent is to treat
all partners equally, and certainly we have tried to do that,
and it has been unfortunate that we have had some of the
challenges we have had with this project. I will tell you, even
in the role as Deputy Administrator, I was aware of this
project. We have a regular update with our buildings team in
terms of some of the key priorities, and this is a project that
is discussed frequently.
I can tell you that it is being given the attention from
our buildings commissioner on a regular basis, and we are
keeping very close on understanding what the timelines are and
the expectations with the current developer that is on the
project, and making sure that the timelines are being met. I
can definitely follow up with you and your staff regarding the
phasing that we have today because I know that letter was from
late last year, but I can assure you that this is a project
that it is unfortunate that the timing--that the efforts did
not work with the previous developer that we had in place, but
I know that it is on a better track now.
Mr. Serrano. Right. What I would like you to do, and I am
not one who asks for commitments because I know that things
change. Once you have a scope and an estimate of cost, is it
possible to get a commitment from you from the agency to alert
the subcommittee of the new requirements and cost, even if it
is mid-budget cycle, you know. And also, finally, how much of
the original appropriations for this project remains, or will
GSA need to fund a new scope of the project with additional
appropriations?
Ms. Roth. Yes, sir. We will definitely follow up with an
initial report, and then we can keep reporting back and
updating that overall scope in terms of keeping you aware of
what the timeline is and the turnaround expectations are.
Mr. Serrano. All right. Thank you. Thank you, Mr. Chairman.
Mr. Crenshaw. Mr. Bishop.
Mr. Bishop. Thank you very much. Again, welcome, Ms. Roth.
Let me just follow up on something that Mr. Serrano referred to
earlier having to do with the safety and security of
courthouses. In my district, the Federal courthouse in
Columbus, Georgia has been ranked as one of the worst Federal
courthouses with respect to security over the past several
years and has not yet been approved for renovation due to
funding constraints.
In fiscal year 2015, $20 million was appropriated to fund
the Judiciary Court Security Program, and in 2016, GSA is again
requesting another $20 million to address the serious security
deficiencies. I run into my local Federal judge frequently. He
is very, very frustrated every time I see him, whether it is at
the post office, the golf course, or in a restaurant. He is
frustrated with the security concerns. So if you could just
give us a little follow-up of how you are going to prioritize,
I would appreciate it.
But I do want to pursue another line of inquiry. Like the
more than 90 agencies that are associated with the National
Industries for the Blind, Georgia Industries for the Blind,
which is headquartered and has two manufacturing locations in
my district, works to provide employment opportunities for
people who are blind. They manufacture and sell products and
also provide services for the Federal Government through the
AbilityOne Program. Over the past year or two, AbilityOne has
experienced some challenges in its work with GSA.
These challenges have become significant enough that last
September, I helped lead a bipartisan letter signed by more
than 60 of my House colleagues, which was sent to the former
Administrator in which we asked several questions about markups
on AbilityOne products, and whether or not GSA and its
authorized dealers were complying with the law that Congress
created 75 years ago, the Javits-Wagner-O'Day Act. There have
been many exchanges back and forth between Congress and GSA,
but I have two important questions I would like to ask you on
behalf of my Georgia constituents who are blind.
First, the GSA markups on AbilityOne products seem to have
spiked over the last few years with some of the markups
exceeding 100 percent to 200 percent or higher. It is my
understanding that the markups have somewhat been reduced as
you have closed down depots or warehouses and moved to a
different delivery system, which we understood justified the
increases in the markups. Now that they have been reduced, I
would like to know when all of the imposed markups on
AbilityOne products will finally be lowered to reasonable
levels so that Federal agencies are once again paying a fair
and reasonable price and more products are being sold and more
jobs for the people who are blind are being created.
And the second question is based on recent reporting by the
GSA Inspector General where GSA authorized the vendors to
continue to sell, in violation of Federal law and regulation,
the commercial equivalents of AbilityOne or SKILCRAFT products,
which are known as ``essentially the same'' products. The
Inspector General has reported that the GSA has identified and
tracks repeat offenders, but no contract language is present in
the contracts that penalizes the firms for engaging in illegal
practice.
So as the new head of GSA, can you tell us what corrective
actions you will take to halt the practice once and for all,
and ensure that no more of your authorized dealers are selling
ETS to Federal agency purchasers at a detriment to our
AbilityOne constituents?
Ms. Roth. Thank you, Congressman, for that question. Our
relationship with AbilityOne and persons with disabilities is
very important, and working with the small businesses in the
industry that they help to develop is a very important
relationship that we have. And we do serve on their commission
as a part of that to really understand both how they interface
with Federal Government and as well as the opportunity for how
we can improve relationships with other agencies outside of
GSA, so it is a very important relationship. We did achieve and
are experiencing reductions in the markups as a result of the
disclosures--the closures of the distribution centers, and that
was something that was an important both consolidation effort
for the organization as well as realignment of how we were
delivering on our mission. But as I said, it is a very
important relationship, so it is something that we keep and
will continue to look at.
In general, with our acquisition services, they are a fee-
for-service organization, and so the work that they do does
have some level of markup, but I appreciate your point in terms
of ensuring that it is not an extreme number and having extreme
level and impact on the returns for those working with
AbilityOne, for example, in this case.
And also certainly with the contract language, if there is
opportunity, I am not aware, as I sit here, the work that we
have done thus far, but I can say for certain that we have been
looking at our contracts in terms of how is the language
situated so that we are managing and creating opportunities,
and we will continue to look at that. But as you bring this up
today, I will make sure that we take a specific look here. That
I am informed about the specific look here.
[The information follows:]
GSA follows Judiciary preferences when selecting projects for the
Judicial Capital Security program. The Judiciary identifies security
deficiencies at court occupied facilities as part of their Asset
Management Planning process and also through security evaluation site
visits.
After the Judiciary identifies locations with security
deficiencies, a Capital Security Study that identifies possible
solutions to address those security needs is then developed by the
Judiciary in coordination with GSA and the U.S. Marshals Services.
GSA provides feedback based on a review of the various alternatives
developed in the studies for addressing the security deficiencies along
with the preliminary cost estimates. The Judiciary determines the
preferred security improvement plan resulting from the study for each
location. The Judiciary then provides their order of priority of
projects
Within 30 days of the funding appropriated to GSA for the Capital
Security Program in a given fiscal year, GSA submits a courthouse
security spend plan, with an explanation for each project to the
Appropriations committees in the House of Representatives and the U.S.
Senate. After submitting the spend plans, GSA executes the prioritized
projects after further development and refinement of the preferred
concept within the constraints of the specific courthouses and the
available funding.
Mr. Bishop. We will give you an enforcement stick.
Ms. Roth. Okay.
Mr. Bishop. Thank you very much.
Ms. Roth. Sure, sir
Mr. Crenshaw. Mr. Amodei.
Mr. Amodei. Thank you, Mr. Chairman.
Madam Administrator, does your agency have a protocol in
place or policy or anything else like that to notify Members of
Congress when you are planning on doing something in their
district? And let me tell you why I am asking. My district
doesn't have a large GSA footprint, but I noticed in the old
post office, the Federal building in the town I live in, there
was significant, that I can see by driving by, was
relandscaped, and so I am just curious as to how that process
works to say we are going to Carson City, Nevada to a Federal
building, not the post office; we are going to spend money on
landscaping; here is how this rose to the top or whatever to be
more familiar with that since that property has been discussed,
at least informally, in the past, about whether there is a
better footprint for the Federal Government, office space
there, that sort of thing, and so that is the background.
Is it possible to place a request for saying, hey, whenever
you are doing something in District 2, not that we want to get
into your business, but just in an informative sense say, hey,
here is what we have got going in northern Nevada, just in case
you have any questions or somebody asks you about it?
Ms. Roth. Well, and first let me say I don't see it as
getting in our business because I think that we have worked in
very close partnership with the committee, and so I definitely
operate on the level of more informed, everyone is better off.
So the--we have regions, obviously, across the country, have 11
regions, and we have the opportunity to understand what our
priorities and work that is coming forward. And certainly we
can have our regions, which will be closest to the activities
that are coming forward work closely with your office as well
as our congressional office.
Mr. Amodei. That would be great. It is Region 9. If you can
have somebody say here is what we have got on our radar scope
for your particular district, and by the way, here is the
background on what we did with respect to that Carson City
property.
Ms. Roth. Yes, sir.
Mr. Amodei. That would be great. Also, last year, through
the indulgence of the chairman and the committee members, and
also a couple of the other committees, we put--we were able to
put language in the appropriations bill that talked about a
bias against resort cities. And you guys, to your credit,
didn't have it in writing like the Department of Justice did,
but nonetheless, our concern was not, hey, hold conferences and
stuff like that at my district. It is please just make value to
the taxpayer the thing. And so if the outfit had the word
``resort'' in its name or it was, in fact, at a jurisdiction
where gambling was legal or something like that, if you are
holding a conference or doing something that it is like, hey,
if the best value happens to be in Reno or Lake Tahoe or
wherever, then please make it on the best value of the
taxpayer.
I want to thank the chairman, again, publicly for his
indulgence and the committee members for their support of that.
And I don't want to kick the dead horse about the Hawaii stuff,
but it is my region, and the only reason I want to sensitize
you to it is, is when something like that happens, I know that
the human nature is we got to go find the most nondescript
place we can find, and we got to do something just short of
pitching tents, and so we go through all of these optics drills
to make it look like you folks are being responsible with your
money.
And so when I see this, I cringe not because I don't like
Ruth's Chris, although with my complexion, Hawaii is not a good
place to be. But it sets us even farther back on trying to say,
listen, if going to Lake Tahoe is the best value, then you
should go there, because that is something then we will be able
to say look what happened in Hawaii.
So all I would say is, I would ask, first and foremost, I
hope that we are making sure that to the extent that we do
conferences, travel, that sort of stuff, that we are still
looking for the best value to the taxpayer, wherever that is,
and that we are renewing our efforts to avoid these appearances
which set the whole hospitality industry back.
Ms. Roth. Yes, sir, and I appreciate that. In terms of--let
me just step back and say when I came on board in March of last
year, it was primarily to focus on the reform activities that
we have undertaken in the organization overall. And so
certainly, the attendance to conferences as well as travel in
general has been a part of that. And the approach that we have
taken is trying to be clear on--to the organization of what the
expectations are as well as what travel they are doing and why.
Our real focus is ensuring that the travel and activity,
whether it be for conference or otherwise mission related, that
it is mission related and that we can tie it back to this
activity means that we get this type of return for either the
staff person or the work that they are responsible for.
And to that end, we put in place travel plans that each of
the office leads report up to, so we have a very structured
process, and in part, it is to not appear nor have the sense of
being selective in the work that we do. We want it to be very
clear on here is what the expectation is, here is how it works
throughout the process, and then be able to report that and be
transparent on it.
Certainly, I was certainly concerned the moment I saw the
item and the headlines regarding the travel to Hawaii, and
something that we are being sure of is was that travel a group
session related to the mission and how can we reinsure that we
are providing parameters of expectations of when people travel,
how frequently they travel, things of that nature. But I
appreciate your point, and we are sensitive to that point as
well.
Mr. Amodei. And I appreciate that, and I would just close
with this, are you comfortable with the fact that whether the
best value happens to be in New York, Florida, you know,
wherever, that there are no discrimination policies presently
in your travel policies that say you are not going to Reno, you
are not going to Atlantic City, you are not going to Miami
Beach, all that stuff where it is perceived as a resort thing,
what I would like to know is your opinion is do we have any of
those biases still in the agency or are we looking at what the
cost is?
Ms. Roth. Our concern is cost and mission related, as well
as we do encourage our employees to look for alternatives that
if it is better for the group to come together via video
teleconferencing as opposed to travel, that is our priority.
And I do talk about travel as I move around the organization,
and I visited all of our regions, and so being clear on what
the expectation is is something that we are asked about
regularly, so I don't think there is a sense of a bias in the
organization around certain locations, and we try to be clear--
--
Mr. Amodei. Great.
Ms. Roth [continuing]. With the staff on that when the
question comes up, because, of course, it does come--you know,
this item is in a certain location, is that okay? We want to
encourage that everyone is making their decisions based on
value, but as well as the mission and how we are--the return
that we are going to get as an organization and whether there
is alternatives to traveling overall.
Mr. Amodei. Okay. Great. Thank you. Thank you, Mr.
Chairman. Yield back.
Mr. Crenshaw. Thank you. I want to ask you about
consolidation. We reduced spending $175 billion, so that means
you got a smaller work force and that ought to mean that you
need less space for people to go to work. And recognizing that,
in our omnibus bill, we put $70 million for you to work on
consolidation, and we put in the omnibus bill that we said only
spend this money if you are going to truly save money.
Obviously, you got to spend money to consolidate things,
but at the end of the day, you want to be saving money. And so,
can you tell us what you have done so far with that $70
million? How are you going to use that to do the consolidation,
and can you point to true savings that are going to result from
that?
Ms. Roth. Yes, sir. And we will be sending a spend plan to
you, I believe, later this week that will outline some of the
projects that are in progress, but when--what we are able to
look at, and as we look at consolidation opportunities, we are
looking for getting the best value in terms of whether it is
consolidating multiple agencies to one location, or if it is
bringing in one sole tenant, but bringing in their other
leases.
And so we will be able to outline for you, both in terms of
what those projects are, but as well as what lease reductions
that will lead to and what annual savings we are expecting.
Our efforts overall is just that in terms of as we identify
what projects as well as identifying which projects makes sense
for consolidation. It is getting the sense of will we find
savings by consolidating, can we utilize existing properties,
and what will be the cost tradeoff between upgrading these
properties and moving these leases into the same location, but
we will definitely send that to the----
Mr. Crenshaw. So you will be able to tell us that this is
how much space that you saved?
Ms. Roth. Yes.
Mr. Crenshaw. And give us a number it reduced, I mean, if
that is the case. It would seem to me if you are going to
reduce your spending on space, you are going to have less
space, so you can say this is how much less space we have, this
is how much money we are saving, and I hope it is more than $70
million, because that is what you are going to spend to save
the money.
Ms. Roth. Save the money, yes, understood.
Mr. Crenshaw. When we will get that report?
Ms. Roth. The spend plan will be coming up later this week.
It would be this week.
Mr. Crenshaw. And then, all right, but this year, I think
the request was for $200 million for consolidation.
Ms. Roth. Yes.
Mr. Crenshaw. Do you have a--do you put the spend plan in
place before you ask for the money, or do you just ask for the
money and then when the money comes, you say, well, let's write
a plan to show how we are going to save money?
Ms. Roth. So we look for projects that are pending or we
understand from agencies they may be interested in going into a
consolidated space. One of the things that are necessary, and
we are seeing that with DHS, is that those agencies have to
take the step of being aggressive with their square footage,
for example, as an opportunity. With the steps of that nature,
it allows for us to take enough space with DHS, we will get
3,000 more people into that location. That is what we are
looking for.
So we get a sense, and we know, just throughout the year as
we are working with agencies, which are ready to bring in
leases, which have done the work to either have the policies
internally, and there are a number of them, understanding that
this is where the savings, the cost savings for much of them
are coming from.
Mr. Crenshaw. But you don't know if for example when we get
that spend plan, will it give us a bottom line number. This
is--we have $70 million, this is how we are going to spend it,
and this is the space reduction.
Ms. Roth. Yes, sir.
Mr. Crenshaw. And then the $200 million, you don't have a
plan yet. We are to assume that you are going to spend the 70
million wisely and end up with an overall savings, and then if
you ask for $200 million, you will give us a spend plan that
says after we spend 200 million extra dollars, at the end of
the day, we are going to save more than that, hopefully some
great multiple of that. When do you write the plan? When do you
write the plan how you are going to spend the $200 million that
is going to save whatever?
Ms. Roth. They happen in tangent. And I can tell you that
we wouldn't come with the $200 million request if we hadn't
seen successes that we have seen in recent years with other
plans that we have on the table or the work that we have done.
But yes, we will be able to tie both the square footage current
usage with the proposed change in usage as well as this dollar
savings from the savings of the lease, and we are always
looking for the same level of return of investment that we are
getting more out of it than we are having to put into it,
because otherwise, it would not--
Mr. Crenshaw. We look forward to hearing that. Let me
change the subject. Let me ask you about the FBI building. Your
predecessors have come before us, and that is a big, big
undertaking. I mean, you are going to build 2.1 million square
feet of office space out somewhere, and you are going to
exchange the FBI building.
Ms. Roth. Yes.
Mr. Crenshaw. And that is very, very complicated. And one
of the things I think the Inspector General said a couple of
years ago, maybe in 2013, the IG didn't really see the kind of
policies and procedures in place to really carry that out in an
effective way. Where you are in that process? How did you
decide, for instance, did you just say we are going to go out
to the FBI building, we are going to exchange that, and somehow
we are going to build 2.1 million square feet of office space
somewhere. The concept is you will get enough money from the
FBI building to get 2 million square feet of new space in
exchange for building what has got to be for a whole lot of
money.
Now, for instance, when is the last time you had the FBI
building appraised?
Ms. Roth. So in terms of our approach overall to all of our
portfolio, we are looking for where is the best opportunity. Do
we have properties that are sitting that do not----
Mr. Crenshaw. I know, but let's talk about the FBI
building.
Ms. Roth. Right. And so with the FBI building, in
particular, it is not meeting the needs of the FBI currently,
and so that is how, in part----
Mr. Crenshaw. Do you have any idea how much it is worth?
Ms. Roth. That is something that the market sets. Certainly
we do appraisals of our properties, but considering the fact
that we are in a competitive market right now where we don't
want to show our hand, as it were, but this process----
Mr. Crenshaw. But have you had it appraised?
Ms. Roth. We have had it appraised.
Mr. Crenshaw. Of late. You can't tell us what that is?
Ms. Roth. I am not sure. The last appraisal was probably
prior to 2013 or 2013 may have been the date, and I can
certainly follow up with the committee. But let me just say
overall, our effort and focus is that this process is going to
really set the value for this building. We are in a--currently,
in terms of--we are in phase 1, and we are having a selection
of potential developers that we are narrowing down to
currently. And from that process is really going to tell us the
value of this property in terms of what the market is willing
to bear and cover for it. We don't know if there will be a
delta. We are--our hope is that it will not, but, of course,
that is what we are looking for is to cover the cost of
replacing that building.
Mr. Crenshaw. So how did you decide you needed 2 million
square feet? That is what you decided? That is what you need
for FBI people?
Ms. Roth. As we look at--as we work with our tenants as
well as our partners, we look at what their needs are and get
an understanding. In terms of the FBI, they are not able to
fit--I think it was the number 52 percent of those who should
be in headquarters are not able to fit there because of that
location.
Mr. Crenshaw. But you have an idea--you are in the process
of picking, I think, three developers, right? Or you pick three
sites, and you are going to pick a developer that is going to
say--we could sell the property and use the money and go build
a new building, or we can exchange it, but the concept is the
same thing.
Ms. Roth. Yes.
Mr. Crenshaw. You say, look, we have got a really valuable
piece of property, and we are going to end up with some new
office space, brand new out somewhere else, but you want to
hopefully make sure that you kind of get even-steven. In other
words, you don't want to spend twice as much money as your
building is worth to build a new building?
Ms. Roth. Absolutely not.
Mr. Crenshaw. So where are you in the process? You are
farther along. I am very concerned that that is so complicated.
I want to make sure, and I have told your predecessor, make
sure you all have the ability in-house or get some people to
figure it out because a lot of people would love to be involved
in that deal.
You know, in Great Britain, we sold our embassy. We are
building a new embassy, and we sold the embassy for more than
we are going to spend on the new building. That is a good deal.
Ms. Roth. Yeah.
Mr. Crenshaw. And so I hope at the end of the day, when you
have this new facility out there somewhere, that you won't come
to us and ask for some more money because it wasn't a great
deal in terms of what the FBI building is worth. That is why I
think it is important that you kind of keep up with the value
of that vis-a-vis the value of what the new office is going to
be.
Ms. Roth. As well as us being transparent and open with the
committee and members about the process as it is happening, so
we have--we are in a process of narrowing down the developers,
and this fall, I think, we might be in a place of actually
being able to make an award, but we will continue to inform
yourselves and staff about where the progress is and how it is
coming forward. That is a concern of ours as well. We
definitely want this project to have a return that is a good
return so that we can go and do other good projects the same.
This is an important project for us, and so we definitely take
that in----
Mr. Crenshaw. Keep us posted. That would be great.
Ms. Roth. Yes, sir.
Mr. Crenshaw. Mr. Serrano.
Mr. Serrano. Thank you, Mr. Chairman.
Mr. Crenshaw. Maybe--I didn't see Mr. Quigley come in.
Mr. Quigley. Up to you.
Mr. Serrano. Oh, no, no, no.
Mr. Quigley. Whatever.
Mr. Serrano. Go ahead.
Mr. Quigley. Thank you, Mr. Chairman. Sorry I was at the
sister subcommittee meeting, THUD, so glad to be here now.
Ms. Roth, as you know, the Federal Government is the
largest property owner in the world. Obviously many of these
properties are underutilized, not utilized at all, while
requiring a lot of maintenance and security expenses, for
example. But last year, this subcommittee, the GSA was unable
to state that it had an up-to-date accurate inventory for all
its real property owned by the Federal Government. I was
troubled that since then, we determined that GAO has updated
its a high risk series for the sixth consecutive Congress,
Federal real property management was on the list. So I guess
the same question, does GSA have an up-to-date accurate
inventory of all Federal real property owned by the Federal
Government?
Ms. Roth. Yes, sir, and thank you for that question.
Obviously that is something that we have been working on quite
a bit, and what we have been able to do is improve in terms of
the data sets that we are asking agencies for and what they are
reporting, and so as that gets better, then I think our data
and reporting will get better. Certainly for GSA we have been
able to provide that list, make it public, put it on a Web
site, and that is what we want to be able to achieve with all
of the Federal agencies, so we continue to work through that.
Mr. Quigley. What is it going to take to get it all done?
Ms. Roth. I think part of it is very much the quality of
the data that is going in and understanding what assets each of
the agencies actually are responsible for. Certainly there are
many and numerous agencies throughout the Federal Government
that are responsible and own agencies beyond--own property
beyond GSA, and so it is working with them to help with the
quality of their data and their reporting.
Mr. Quigley. Do we know how many real property and land
inventory databases exist in the Federal Government?
Ms. Roth. As I sit here, I don't know databases, but I can
certainly get back to the committee with that.
Mr. Quigley. How difficult would it be to get it into one
database some day?
Ms. Roth. I will tell you that we--and especially in the
past year that I have been here, we have been using technology
quite a bit to help us improve in terms of our delivery of
services to the American people and the public just in general,
so I think that our technology understand--how we understand
technology now and our ability to use that to help improve our
database is much better than it has been in the past.
Mr. Quigley. And the final part is once we--how are we
doing improving getting rid of surplus property, in your mind?
Ms. Roth. In terms of surplus property, I think that there
is always room for improvement, but I think that some agencies
are doing better than others. And again, it is part of
understanding what their--what is in their portfolio as well as
how to dispose of it and ensuring that they have the talent and
skill set internally. We certainly are in due help when asked,
but it is something that we continue to work on with agencies.
Mr. Quigley. Final question. Is there anything we can do to
encourage them more than we already are to get rid of the
surplus properties?
Ms. Roth. I think that the support of the committee has
been important. One of the things that we do see in terms of
portfolio managers is, is the reality, is their ability to be
able to hold onto revenue or something of that nature that
comes from the sale of property may be an incentive that they
currently don't have.
Mr. Quigley. Right.
Ms. Roth. And--but there are a number of strategies such as
that that might be of help, and we can certainly follow up and
have a discussion with the staff regarding that.
Mr. Quigley. Thank you. I yield back, Mr. Chairman.
Mr. Crenshaw. I think that has been an ongoing concern that
to manage all that property, that we have a list of it so we
kind of know then and you can help us when you dispose of
property, all those kind of things. So I appreciate it, Mr.
Quigley. Let's go to Mr. Yoder.
Mr. Yoder. Oh, sorry. How are you?
Ms. Roth. Good, sir. Thank you.
Mr. Yoder. Thank you for coming to our hearing today. Thank
you, Mr. Chairman. I wanted to echo the sentiments of Mr.
Quigley related to the real property issue. He and I both
raised this issue in previous hearings. I raised it the last
couple of years, and one of the things I can't answer for my
constituents is what we own. My constituents can't go to a map
and look at it and see what government owns in the Third
District of Kansas, what property may be idle, what property
may be--we overpaid for, and so it is a real disconnect between
the assets the government owns and our constituents holding us
accountable because we have no way to properly display to our
constituents what we own. Congress doesn't know all the
property our government owns.
So I want to just reiterate some of the points that Mr.
Quigley had and just engage in that dialogue a little further.
You know, we don't know how many golf courses we own, for
example, or how many parking garages we own or how many hotels
we own, and so I am encouraged that since we brought this up a
couple of years ago that the GSA has acknowledged this is a
priority and is working towards resolution, and I appreciate
your comments in that regard.
I did note that we were able to make a nice Pinterest, I
guess slide, that shows the budget request, so certainly I know
where GSA is capable of using technology in a way that could
help us understand what our requests are, can do the same thing
for our property. Obviously it is a much bigger undertaking.
Are you familiar with the letter that MAPPS sent to the
administrator of the GSA in January of this year? MAPPS is the
Management Association for Private Photogrammetric Surveyors.
Ms. Roth. I apologize. I am not familiar with this specific
letter.
Mr. Yoder. Let me just tell you what the letter is. Maybe
you will be familiar with it, and maybe you could respond.
MAPPS has actually offered their private set of surveyors and
mappers, they have actually offered to help the GSA categorize
all their property. It says, ``MAPPS stands ready to assist GSA
with the development of a current accurate geo-enabled
inventory of all Federal real property assets. They would be
pleased to work with your staff to discuss the available
services, technology standards, and specifications that will
meet GAO's expectation and comply with congressional
instruction.''
And so I would be interested to know if you have considered
using outside private parties to help in this effort,
particularly experts that have a history of being able to
categorize large amounts of information like this?
Ms. Roth. So at this point, just to step back, GSA has
placed our properties on a map and have made that available,
and so we do have that, and certainly we have the real property
database that we report out, and the last one was from fiscal
year 2013.
With that being said, as I was commenting earlier, some
agencies are further along than others in being able to both
report on their data as well as to manage that. So to the
extent that there are other external efforts that are
available, we certainly are open to exploring what makes sense,
and--but we continue to work with the Federal Real Property
Council as well as OMB to really try and have heard the message
that--of getting that list clean as well as made available.
Mr. Yoder. But you would agree that if a constituent or
even our office wanted to create a geolocation list of Federal
property that is owned in the State of Kansas, that would be
very difficult to do, given the resources made available by the
GSA?
Ms. Roth. Currently, in terms of the information that you
are receiving that GSA collects from the other agencies, it
doesn't give the full picture, and I understand that that is
certainly what Congress wants, and that is something that we
are trying to----
Mr. Yoder. I would say it doesn't even give a partial
amount of the picture. And if you look at the language that was
added to the Appropriations Act passed last year, it says ``GSA
is charged with compiling the Federal real property profile.
Numerous studies have found that this profile contains a
significant amount of inaccurate information. The committee is
outraged that the Federal Government cannot provide an accurate
accounting to the American people of all the property that it
owns.
``The committee expects GSA to work with agencies across
government to improve the data contained in this report and
improve transparency to the American taxpayer. Within 90 days
of the enactment of this Act, GSA shall report to the
Appropriations Committee on steps taken to improve the quality
of the profile.''
Has the GSA reported to the committee as required by the
Act?
Ms. Roth. My understanding is that we have been reporting
to the committee, but regardless of that, to your point, it is
not quality data, and it is not allowing for that geospatial
map that I think the committee is looking for. So our ability
to continue to improve in that regard, and if there are private
sector entities that could help with that, I do think that is
something that we should explore. So just the point is, even--
whatever we are applying it today is not meeting our
expectations nor yours, and we will continue to work on that.
Mr. Yoder. I appreciate that response, and I would
encourage you to make this a top priority. I would encourage
you to look at third parties that have an expertise in this
issue. I would encourage the GSA to respond to the letter to
MAPPS if they haven't; and if they have, to provide the
committee with a response to that letter. And to provide this
service to the American people not only creates an opportunity
for our constituents to have more engagement on what we are
doing here, but it also would make our jobs--make us more
capable of reducing the Federal real estate portfolio in a way
that could save taxpayers money, reduce the debt, and we can't
engage in that unless we have the information.
So this is a critical first step to this committee being
able to do its job, and for us being able to do our job to our
constituents to give them the information that they need to
hold us accountable.
And with that, Mr. Chairman, I yield back. Thank you for
your testimony.
Mr. Crenshaw. Thank you. Let's go to Mr. Serrano.
Mr. Serrano. Thank you, Mr. Chairman. Let me, before I go
on to a question I had set to go, just back up something that
the chairman said. We are concerned that what is happening with
the FBI building, which is not described in detail in the
budget request, and the concern is that it will diminish
oversight of this project by this committee, and I join the
chairman in that. And I would like to ask you, Ms. Roth, has
GSA ever used its exchange authorities for a project this large
before?
Ms. Roth. This is among one of the largest projects. I am
not sure that any other has met this level. But with that being
said, and I understand at this stage, there isn't a role for
the committee to play. However, we do think it is very
important to have your buy-in and comfort with the project as
well, so we will continue to inform the staff, as well as the
committee, of the activities that are occurring and can have
that, I think they are meeting regularly already, but that is
an important role.
Mr. Serrano. Just a correction, and I do it in a friendly
way. There is always a role for the committee to play. And
after all, we are the only committee that is in the
Constitution, I think. Right? One of the few. There is a role
for us to play.
Ms. Roth. Absolutely. I apologize, sir.
Mr. Serrano. It helps our relationships if we understand
that. Also, just to give you a story, I remember a few years
ago, we had an agency come before us and say don't give us any
more money. We don't need any more money. And we had never
heard that in my 40 years in government. It turned out to be
the agency that wasn't watching Wall Street do what they were
doing, and so we would like to have oversight. But let me get
back to my favorite and most difficult subject because I don't
understand it. The leasing versus the purchasing. You know, the
American dream is to own, not to rent, so why would government
be any different, and how much money do we spend on leasing?
And I see that you have $5.5 billion in leasing of privately-
owned space. What are we doing to remedy that? And is your
ultimate goal to bring leasing down, or is it the agency's
ultimate goal? I am not going to put it on you. You have been
there a month. But is the agency's ultimate goal to bring
leasing down?
To me, it is much better to know that that building belongs
to us and that building belongs to us because once it belongs
to you, you could always sell it to make money; and, you know,
the folks on the other side believe that the best way to save
money is by cutting the budget. I disagree. I think it is also
by growing the budget to investments. And for us to be leasing,
which is more costly than building, I just don't get it. So
where are we headed in that?
Ms. Roth. As we approach our portfolio----
Mr. Serrano. Or is the committee not being paid attention
to on that subject?
Ms. Roth. No, sir. I regret every word of that. Absolutely.
As we approach our portfolio, we are looking for certainly the
best value for housing for the agencies that we are working
with, but I think that you have seen GSA be more proactive year
over year in terms of helping agencies see the value of both
consolidating leases as well as us being very stringent in our
efforts to improve on the assets that we have as well and make
them available and being smarter about how we are utilizing
them.
So using the square footage of space in different ways, I
think has been an important step as well. So at the end of the
day, you know, data tells us that owning and having agencies
and property that is owned is a better value overall. Sometimes
that is not available, and that is the unfortunate part at
times when that is the case, but we do have a preference in
terms of own. It is just not always available. But what we have
been working on is trying to reduce the cost of annual lease
payments through improvement of owned facilities as well as
consolidation efforts.
Mr. Serrano. Right. A quick follow-up on that because I
know there are some other folks that should be given a chance
to ask questions. Maybe it is just one of those questions where
you have to turnaround and ask somebody behind you, and I
understand that. How did that mind set come into being? When
did this start that we should be leasing rather than
purchasing?
Ms. Roth. I am not sure anyone behind me actually knows
that either, but I don't know the answer to that. What I do
know is as we are approaching our portfolio today, we have been
very focused on where are our assets across the country because
as you point out, it hasn't been profitable for us or creating
a return on the investments that the American public is paying,
and to your point in terms of the costs that we pay into the
buildings that we are maintaining as such.
So we do have a preference and a focus on how do we make
the best value out of the properties we have use of today, and
ensure that they can meet the needs of the workforce as we are
planning for today and into the future.
Mr. Serrano. Okay. Mr. Chairman, and my comment was just
correct. It wasn't meant to question your respect for the
committee.
Ms. Roth. Thank you.
Mr. Serrano. I have a feeling that people who have English
as a second language, as I do, pay more attention to every word
than native speakers. I will get off the hook that way.
Ms. Roth. Thank you. Thank you, sir.
Mr. Crenshaw. Thank you. Let's go to Ms. Herrera Beutler
and then to Mr. Bishop and then to Mr. Womack.
Ms. Herrera Beutler. Thank you very much, Mr. Chairman. I
am on the OIG Web site, and I was hoping you could help me
understand something. Is Federal Acquisition Service under your
jurisdiction?
Ms. Roth. Yes, ma'am.
Ms. Herrera Beutler. Okay. So are you familiar with--it is
dated March 13. It is from the Assistant Inspector General for
Auditing, Office of Audits. It is titled to Commissioner Sharp
with regard to major issues for multiple-award schedule pre-
award audits. Are you familiar with this?
Ms. Roth. Just that it was coming out. We were expecting it
last Thursday, and we have had some initial conversations about
it.
Ms. Herrera Beutler. I wanted to bring specifically for the
record and to your attention, because I wasn't familiar with
your overall budget, you are requesting flat funding. Correct?
Ms. Roth. No, in terms of the Federal Acquisition Services,
that is an area that is self-funded.
Ms. Herrera Beutler. No, no. I am talking about your
budget, GSA's, are you asking for a flat fund, or are you
asking for an increase?
Ms. Roth. GSA is asking for an increase in its budget over
2015. The total budget request is for $10.6 billion, and it
includes an increase over the rental payments that we actually
bring in. We are also asking for about $9.9 billion for 2017.
Ms. Herrera Beutler. Okay, which is a sizeable sum. This
doesn't obviously address that whole thing, but there is a
piece here that I think might be helpful in recouping some of
that cost. I wanted to bring this to the attention of the
chair. It just came out, so I don't think everybody has had a
chance to go through it. But there are three or four main
points that the IG has said for the past 3 years he has
issued--how long have you been in this role? Probably not the
last 3 years?
Mr. Crenshaw. The last 3 weeks.
Ms. Herrera Beutler. So this is not your last 3 years, but
for the past 3 years, they have been issuing major issues
memoranda, and I think he just felt that there were some
recurring issues that needed to be addressed, and I wanted to
make sure you were aware of them. Especially as you are asking
for an increase in budget, this looks like a good area to dig
into. When they were going through the acquisition audits,
there were four main points he found. First was for over three-
quarters of the contracts that they audited, contractors
provided the commercial sales practices disclosures that were
not current, not accurate, and/or complete to support their
prices. Half of the audit--another bullet point--half of the
audited contractors supplied labor that did not meet the
minimum educational or experience qualifications as required by
GSA for contracts. And over a third of the audited contractors
did not have adequate systems to accumulate and report
scheduled sales, and many contractors improperly calculated
their iostats for remittance to GSA. And then fourth point he
has here is contracting offices are not fully achieving cost
avoidances identified by the pre-award audit.
So what he found was there is about, he goes through a few
different numbers, but in the same year: We recommend the price
and discount adjustments that, if realized, would allow for
over $1.6 billion in cost avoidances and additionally over $2.7
million in recoverable overcharges.
To a scale of what you are asking, that is a fraction of
what you are asking for in an increase, but I would argue, you
know, the best part of $2 billion is worth going after. And so
I guess I wanted to ask how much and how closely you worked
with the IG to identify these areas where you can improve the
system's flow with regard to who is doing what and recoup some
of this money. I guess I want to get a feel for what kind of a
priority it is for you to kind of walk--because I feel like
they are doing the work of that. You just get to take their
recommendations. Might as well take advantage of it.
Ms. Roth. Right. I appreciate that question. The IG and the
role of the IG and our partnership with them is very important
to us, and we actually meet on a pretty regular basis, at
minimum monthly, but frequently are in discussions, either
directly or between staff regarding a number of items. So, yes,
their role in terms of helping us evaluate and research the
production of effort and how it is actually performing has been
very valuable. This is, and as it was brought to my attention,
and as Commissioner Sharp looked at the draft of what he was
expecting to come out, we definitely had concerns, and there
were some opportunities as you pointed out for work and
improvement there. And I think that we need to take that more
than under advisement, but actually apply a work plan to it, be
clear about what the milestones are, and set about implementing
those efforts.
There have been some efforts that I know that they have
started already. I am not fully aware of all of those pieces
but this is something that we are taking very seriously. And to
your point, it not only tells us about where cost savings are
available, but also where potentially we are not meeting, or
those we are working with aren't meeting our policies, and that
is problematic.
Ms. Herrera Beutler. Absolutely. Is it possible to ask as
you put together--I don't know whose team is here, but as your
team is putting together that work plan, that you could keep my
office--I don't need to know step by step in detail. I just
want to know as its moving, especially as you are coming back
to us and the team is coming back to us asking us to increase
your budget, I want to also make sure that we are recouping
where we can and should be.
Ms. Roth. Understood.
Ms. Herrera Beutler. Thank you. I appreciate it, and
welcome to the job.
Mr. Crenshaw. Yeah. Actually in the real numbers, it is
about $1 billion, $100 million in addition. And every year,
like 2014 and 2015, it is about a $1 billion more. I think to
her point is you wouldn't have to ask for an increase if you
just recouped what was missing. But I am sure you are working
on that. Mr. Bishop.
Mr. Bishop. Thank you very much. Agriculture/agribusiness
is the largest economic sector in the Georgia economy, and our
State has lots of utilization and collaboration with USDA. It
is my understanding that GSA is planning to transfer almost 300
financial operations staff members to the Department of
Agriculture. I would like to hear about when this transfer is
to take place. Is it on schedule? Will the transfer of these
personnel be permanent or temporary? What is the purpose of the
transfer? How will the staff become assets to USDA? Will GSA
experience any disruption in its operations, the functions that
these current GSA people are now performing, and what are the
end goals of the transfer in terms of efficiency to both GSA
and USDA?
Ms. Roth. Thank you, Congressman, for the question. The
effort between GSA and USDA is really borne out of GSA's
efforts to really focus in on its missions of infrastructure
and technology and acquisition. What we found is that we had a
financial services area, a line of business in which we were
providing services for other agencies, but in reality, it was
not the main part of our mission as an organization. USDA has
had a very mature, financial services area within its
organization, and so this move is actually taking the financial
services team that has been working at GSA and transferring
them to USDA. It is actually a move of people as well as
technology. It will be effective March 22, and thus far, it is
working well, and we are on time.
With that being said, it is a large move. It is one that we
need to continue to watch closer, but in terms of just overall,
why we are doing this, it is a part of our effort to continue
to focus on really what is the mission of GSA and get back to
that mission.
Mr. Bishop. And, of course, USDA has had challenges dealing
with IT and the financial aspects of its mission also, and you
have got staff that actually have skill sets to do that----
Ms. Roth. That is right.
Mr. Bishop [continuing]. That you are not fully utilizing.
Ms. Roth. That is right. Ultimately, if we were going to
continue with this effort, we needed to invest primarily in the
IT segment as well as some level of staff potentially, and it
just didn't fit with the mission of what we were doing, but
these are a specialized team that will continue to work the
same as they move over.
Mr. Bishop. Will that result in a reduction of your budget?
Ms. Roth. Yes, it has, and it is reflected in the budget.
Mr. Bishop. So it is a permanent transfer of that division?
Ms. Roth. Yes.
Mr. Bishop. Thank you very much.
Mr. Crenshaw. Mr. Womack.
Mr. Womack. Thank you, Mr. Chairman. And Administrator
Roth, thank you for being here. I want to talk for just a
moment about the Green Building Certification System used by
GSA. I know you have two options, Green Globes and LEED. Some
in the construction material industry have expressed concern
that their products, proven safe and efficient, used by
millions of people around the U.S., are being precluded from
LEED certification because they contain vinyl, plastic, or
other materials that anti-chemical advocates deem harmful, when
in fact, many of these materials have provided great advances
in environmental performance, energy efficiency, and occupant
safety. So as the GSA is undergoing a regular analysis of
reestablishing its partnership with LEED--and I understand you
do that every 5 years--can you tell me if you have received any
comments from the public on the Federal register portal on this
issue?
Ms. Roth. My understanding is we do have comments that
are--we are receiving comments now. I am not certain if we
received comments on this particular item; however, I wouldn't
be surprised if we were.
Mr. Womack. If LEED were to go down this path, if we can
agree--or at least I will maintain that they are on a path of
overregulation and extreme environmental activism--do you
anticipate that there could come a day when GSA would cease to
accept the system as a valid Green Building Certification
System?
Ms. Roth. I think we have to continue to remain open to
what is the best system to support the agencies, whether it is
LEED or it is something else, and that is what our regular
evaluations of that process is. So I think that we have to
approach each process in terms of an evaluation of how it is
working with fresh eyes.
Mr. Womack. Do you have a personal thought on it?
Ms. Roth. In terms of the LEED certifications, the work
that I have been familiar with and the work that we have done
at GSA has really focused on the energy savings, and so it
hasn't really factored in as much the materials. So in terms of
just overall, if there is a benefit that we are not getting, I
want to see us get those benefits. And if there is a way to
work with private sector to ensure that those are coming to the
table, that is what I think is important.
Mr. Womack. But if you could conclude, and I am not trying
to speculate that that is a conclusion that you would come up
with, but if one could reasonably conclude that this is a form
of activism that is being used in a very prominent program, I
am going to ask you again, do you consider extreme activism in
the evaluation of these criteria?
Ms. Roth. I think extreme activism and anything that is
going to isolate out a group, whether it be this case with LEED
in this example, or something else, is problematic. So that is
not something that we are looking to have as part of the
agency. We want to be able to understand that we are getting
benefits in selling green-related activities, whether it is
from the light bulbs to the roofs, and we want to get benefits
out of that. So if there is extreme activity that is happening
and it is not benefiting us, that is not something that we will
support.
Mr. Womack. Okay. I would like to thank you for including
the John Paul Hammerschmidt Federal Building and the U.S.
Courthouse in the list of priorities in fiscal year 2017, and
would like to get some more details. I know my office would
like to get more details on the proposed exterior and
structural repairs for that facility, so if your organization
could communicate back, that would be one that we would leave
for the record.
Finally, I want to talk about the FBI headquarters. I
understand that the plan is to basically trade a new site well
beyond the central city center for the present site, and it is
my understanding that the RFP is for a smaller building. Is
that right?
Ms. Roth. The RFP at this time, I am not sure that that has
been made clear. What we are at the place of is trying to get--
we are narrowing down a list of potential developers, and they
are going to then turn around and give us a sense of what type
of project----
Mr. Womack. So let me ask you, what is driving the need for
the relocation? And if it is related to the inefficiency,
building problems or the present location, then help me,
because I understand this new facility is going to be $1.5
billion or something in that regard--the most liberal estimate
of the value, as I hear it, of the present location, is around
$500 million. So we are talking about a pretty sizeable
difference here. What is driving the need to relocate?
Ms. Roth. Well, the process itself is what is going to give
us a sense of what the value we should expect to get out of the
current FBI building, as well as the new location and the cost
thereof. We will get a sense of the proposals that are brought
forth. But in terms of the need that brought us to the table on
this discussion, it really has been FBI's need of having a new
facility. The facility that they are currently in is not
meeting their needs. And that was----
Mr. Womack. That doesn't help me. I am asking specifically.
What do you mean it doesn't meet their needs? If you were
telling me that it is not big enough, and they are going to
have to have additional space, and they don't want to split a
campus or something like that, I would understand that. But I
see this is not a space issue. In fact, the new building is
probably going to be smaller, but that aside, what is driving
that need?
Ms. Roth. Well, I mean part of it, at least according to
our understanding with the FBI is 52 percent of the people who
should be in the headquarters are not able to be there because
of how the building is shaped and how it is designed
internally. The future space could be smaller, but certainly we
are using a utilization of the footprints of properties in
different ways now than we were in the past, so we are finding
ways in which we are putting more people into smaller square
footage, so that is quite possible as well. But I think at this
point, we are just at a place of where we are going to get back
a sense of who are the potential developers to do this work,
and then get a sense of what those plans would look like.
Mr. Womack. Is it possible that they will keep the current
location and will look at maybe a remodel or some other kind of
a restructure process there, or is this a foregone conclusion
that they are going to move?
Ms. Roth. Well, in terms of their process, it took two
paths in first identifying potential, narrowing down potential
sites, and then separately potential developers; and then the
sites would be married up with the developer. So the way it is
set now is not to go into the same location.
Ms. Herrera Beutler. Would the gentleman yield for a
second?
Mr. Womack. I would be happy to yield.
Ms. Herrera Beutler. I am not following this line. I always
ask this question, but why--was it because it structurally was
deficient? Is it unsafe? Can it not be retrofitted to meet new
technologies that are necessary? Just a simple why?
Ms. Roth. I don't know specifically here. I can say that
generally when we approach these jobs, it is a matter of
understanding what is available for the property that is there,
and so it is quite possible to look at a property and say that
the costs of retrofitting it or the improvements that are
necessary won't give us a good return in terms of building new
or utilizing another space. That is how----
Mr. Womack. Was it assumed that the present location,
inadequate as the building is for the current needs of the
FBI--we can stipulate to that--I am not sure I can, but for the
sake of the argument--was it assumed that finding a location
outside the primary city center area would be of economic value
that they could build a new facility out there, give them what
the FBI wants, the new building, and trade it for the value of
the property where it currently is; and it would be an even
trade, that that would drive some of that decision?
Ms. Roth. Certainly there is a number of factors including
the economics of it that go into putting forth these potential
exchanges. We were saying earlier this would be the largest
exchange of its nature, and so we will have a sense coming out
of this process really what the market is willing to bear. But,
yes, in terms of what we were looking for here overall is a new
location for--well, a new building for FBI. The site process
narrowed down the location, and that is what has us having to
check around Maryland or Virginia versus the existing location.
Mr. Womack. Mr. Chairman, I don't have a real good, warm
and fuzzy feeling on this particular project.
Mr. Crenshaw. Just so you will know before you got here, we
had an extensive conversation about this because, for instance
in London, we are selling this very, very valuable piece of
property on Berkeley Square, which I hate to see us lose, but
because of security issues, we are building a new embassy
across the river. But we are selling the valuable piece of
property in Berkeley Square for more than we are going to spend
building a new building. And that is a good concept. And I had
asked her earlier if the concept is that we have got this
valuable piece of property downtown, and somebody can build a
facility that houses everybody and is more modern, et cetera,
et cetera, without having a big gap in between.
I told her we really didn't want to hear her agency come
back and say, well, you know, we are $1 billion short on the
new building. So the concept is that it ought to be an even
trade. As I said to her, I think it is very, very complicated,
and I have asked over and over again, and she is going to tell
us what the latest appraisal is, because I think you ought to
be appraising that from time to time, and you ought to be
assessing what the new one is going to cost. And then you can
tell us more if it is going to be kind of, as I said, even
Steven. That is a good concept. But just to build a new
building and trade somebody for some valuable piece of property
downtown, I don't want us to come out on the short end of that
stick. So she is going to keep us aware of that.
Mr. Womack. Prepare yourself.
Mr. Crenshaw. Thank you for your concern. Yes.
Ms. Herrera Beutler. This I am also positive is not under
our jurisdiction, but who is talking about building the new
facility for the Secret Service, the new White House for their
training? Whose committee does that go to? They were going to
make a proposal today. The Secret Service is requesting $8
million or so to build a replica of the White House to better
help them train. So it is obviously not you.
Mr. Crenshaw. Probably Homeland. I would think it is
Homeland.
Mr. Serrano. A replica of the White House?
Ms. Herrera Beutler. A replica of the White House so that
they can train them.
Mr. Serrano. They should just keep away from the fences.
Ms. Herrera Beutler. You know, I was going to offer that,
but that is not our committee.
Mr. Crenshaw. And just in passing, there will be a day when
the West Wing gets fixed up when whoever the President is
doesn't mind moving out. So far, no one wants to move out. I
think everybody has had a chance to ask. Let me just ask one
last question. This gets into my original question in terms of
priorities.
Now, there is $160 million to buy the Red Cross Building
that you would like. Now the State Department is in there, I
know, and I think part of the concept is the State Department
is going to have $155 million, and you got $160 million, and so
you have got a $315 million building that you want to buy. I
guess I am just curious, why is that a big priority? I mean,
for instance, what if the State Department doesn't get--if they
are going to buy half of it, what if they don't get their $155
million? What if you don't get your full $160 million? Is that
going to save money? Why is that up on your priority list?
Ms. Roth. This would be a consolidation effort. DHS is
currently in multiple leases across the city, and this would be
an opportunity to consolidate their leases overall, so that is
primarily what makes this a priority project. In terms of if we
don't receive the funding, obviously plans will have to change
and look at other alternatives, but ultimately, this is what
brings the project to the table.
Mr. Crenshaw. Is the State Department in there now?
Ms. Roth. Yes, in part, yes.
Mr. Crenshaw. And then some other people will go in there
as well.
Ms. Roth. Other State Department leases actually. They
would be able to fold all of their leases in there.
Mr. Crenshaw. That is like when I ask you what are we going
to do with the $70 million in consolidation, you don't
necessarily have to spend all that $70 million, but this is the
kind of consolidation you are trying to bring about. You think
if you spend $350 million, put everybody in there, at the end
of the day we are going to save money?
Ms. Roth. Yes, sir. Yes, sir. I want to say--Pat cautions
me on this--but I am pretty sure that they are paying about $12
million in leases annually across the city, and they will be
able to go into this facility and reduce those leases. And so
that is why we would look at an opportunity of that nature,
just for example.
Mr. Crenshaw. Thank you. I think unless anybody has any
further questions, we want to thank you for being here today.
You have got a tough job, especially for being here 3 weeks.
And keep up the good work. Thank you so much. This meeting is
adjourned.
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Monday, March 23, 2015.
THE SUPREME COURT
WITNESSES
HON. STEPHEN G. BREYER, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED
STATES
HON. ANTHONY M. KENNEDY, ASSOCIATE JUSTICE, SUPREME COURT OF THE UNITED
STATES
Mr. Crenshaw. Well, this hearing will come to order.
First of all, let me welcome Justice Breyer and Justice
Kennedy. Thank you for being here today. I know both of you
have testified before our subcommittee in times past, and we
appreciate you coming back and being with us here again today.
We all look forward to this time to have an exchange. Not often
does the legislative branch and the judicial branch get to talk
to each other. So we look forward to that.
I think all of us know that a fair and impartial judiciary
is very much a cornerstone to our democratic system of
government. And so the fact that you are here today I think is
important. I think the work that you do is obviously very, very
important, and not only do you resolve disputes between
individuals but also between the executive branch of the
Federal Government as well as the legislative branch. And, to
do that, you need the respect of the citizens, and I think you
have that. I think you also give respect to the citizens and
their view of what is right and what is fair. And that is
important as well.
So I think today's hearing is important because we do have
a chance to talk to each other about issues that are important.
Now, one of the things that I want to commend you all for
is your work to try to help save money. Everybody knows that
government needs money to provide services, but of late, we are
trying to make sure that every task of government is completed
more efficiently and more effectively than it ever has been
before. Money is limited, and you are to be commended for the
work that you have done to try to save the taxpayers' dollars.
I noticed that your request this year, $88.2 million, is almost
$1 million less than you requested last year. And I can tell
you my fellow members up here don't see that happen very often
when an agency comes in and asks for less money than they
received the year before. So we thank you for that.
I know you have done some cost containment initiatives
dealing with technology, dealing with personnel, and it has
paid off. And I know that there are some small increases, a
part of that overall reduction, that are basically inflationary
themselves.
So, Justice Kennedy, Justice Breyer, we look forward to
hearing from you about the resources that you need and any
other comments you might have about the judiciary in general.
And we are going to pledge to you to work as best we can to
make sure that you have the resources necessary to carry out
your constitutional responsibility. And, once again, thank you
for the work you have done to try to save money and be
efficient and effective.
And, in closing, just let me say on a personal note, I am
from Jacksonville, Florida, and we have something there called
the Chester Bedell Inn of the Court. It was one of the first
Inn of the Courts established in Florida. And every year they
have a special occasion on Law Day, and I wanted to let you
know that they will be requesting one of the members of the
Supreme Court to come in 2016 to be there for that celebration
in Jacksonville, Florida. So I hope you will be on the lookout
for that invitation. I know they would love to have you there,
and I would certainly welcome the honor to introduce you to
Jacksonville, Florida.
Mr. Womack. The chairman has no shame.
Mr. Crenshaw. And that has nothing to do with your budget
request. And so we look forward to hearing your testimony, but,
first, let me turn to the acting ranking member, Mr. Bishop.
Mr. Bishop. Thank you very much, Mr. Chairman.
Ranking Member Serrano would very much have liked to have
been here today. But he could not, and he sends his sincerest
apologies. I am here in his place, and I would also like to
warmly welcome you both, Justices Kennedy and Breyer, to our
subcommittee.
As has been said in the past years, this is one of the rare
opportunities for our two branches of government to interact.
Because of this, our questions sometimes range beyond strict
appropriations issues. And, as our Nation's highest court, many
of us look to you for important insights into issues affecting
the Federal judiciary as a whole, which can be especially
critical in such difficult and challenging budget times as we
are experiencing.
We have to be careful not to allow anything to affect the
ability of our Federal judiciary to hear cases and to dispense
justice in a fair and a timely manner. We have to be sure also
to provide the Supreme Court, as both the final authority on
our Constitution and the most visible symbol of our system of
justice, with sufficient resources to undertake not just your
judicial functions but your public information functions as
well.
So we look forward to your testimony and whatever we can do
to make sure that we have a strong independent, well-funded
judiciary, we want to do that.
I yield back, Mr. Chairman.
Mr. Crenshaw. Thank you, Mr. Bishop.
And now let me recognize first Justice Kennedy for any
remarks you might like to make. We will put your written
statement in the record. And if you could keep your remarks in
the neighborhood of 5 minutes, that will give us some time to
ask questions. But, again, the floor is yours.
Justice Kennedy. Thank you very much, Mr. Chairman,
Congressman Bishop, Congressman Womack. Thank you for your
welcome and your greeting to Justice Breyer and to me, and we
bring our messages of greeting from our colleagues.
With us today--I will just go in the order of where they
are seated--are Jeff Minear, who is counselor to the President,
and--or Counselor to the Chief Justice; and Kevin Cline, who is
our budget and personnel director; and Pam Talkin, who is the
Marshal of the Court; Scott Harris, who is the Clerk of the
Court.
And is Patricia here with you as well? We have Kathy Arberg
and Patricia Estrada from our Public Information Office.
As you indicated, Mr. Chairman, we are always very careful,
very cautious, about budgetary expenditures. And, as you well
know and as the committee well knows, the budget of the Supreme
Court is just a small part of the budget for the courts as a
whole. And the budget for the courts as a whole is a very small
part of the United States budget.
And in I think a day you will hear a presentation from
Judge Julia Gibbons of the Sixth Circuit on the budget for the
judiciary as a whole. And this is of immense importance. She
does a marvelous job for the judiciary, and spends many, many
days and weeks on this subject. And the budget for the Federal
judiciary as a whole--it is important I think for the Congress
to realize--is not just bar judges. There are 7,900 probation
and pre-sentencing officers. And this is cost-effective because
this keeps people on supervised release so that they are not in
custody, and this is a huge cost saving. Quite without
reference to the human factor, over the years in the Federal
system, we have a very low recidivism rate for those who are on
release. It is high if you look at it as one-third, but it is
quite low compared to the States. So this is cost-effective.
And the Federal courts as a whole, Mr. Chairman, are a
tangible, palpable, visible, clear manifestation of our
commitment to the Rule of Law. When people from foreign
countries come, as judges often come, and they see the Federal
judicial system, they admire it. They are inspired by it. And
they go back to their countries and say that this is a nation
that is committed to the Rule of Law. And law is part of the
capital infrastructure. You can not have a free economic system
without a functioning legal system. And so what you do is of
immense importance, and we appreciate it.
As to our own budget, as you indicated, Mr. Chairman,
overall we have a decrease in our own court operations and
expenditures. We have almost exactly a 1 percent--little over a
1 percent increase--and that is for mandated increases for
inflation and salary increases that are mandated. And over half
of that we have absorbed by cost-cutting in the court. So we
have absorbed over half of the mandated increases within the
existing framework that we have.
The Court is planning to have, in the year 2016, an
electronic filing system so that all of the papers that are
filed with the Court will be on electronic filing. We waited in
part until the district courts and the circuit courts could get
on that system so that we could then take it from them, but of
course this also includes filings from State courts and from
prisoners. We think this may require an increase in personnel
by one or two people. We are not sure. The pro se petitions, of
which there--I don't know, it is in your materials--probably in
the area of 6,000 a year. These are usually handwritten,
prisoner handwritten. When this is put on electronic--an
electronic retrievable transmission--system, you will have a
database from which scholars and analysts can look at the whole
criminal system, both State and Federal, and make comparisons.
How many--what are the percentage of cases where there is a
complaint on inadequate assistance of counsel, or search and
seizure, or a Batson violation. And so this will be a database
that will give us considerable data for scholars so that we can
study our system.
We are, of course, prepared to answer questions about the
specifics, but, once again, let me thank you for the honor of
being here. My colleague Justice Breyer and I are pleased to
answer your questions.
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Mr. Crenshaw. Justice Breyer, you are recognized.
Justice Breyer. I would simply reinforce what my colleague
Justice Kennedy said and what you said, Mr. Chairman, and you
are here. And I think that is a very good thing.
So are we because I think our biggest problem is not
necessarily the budget, but it is right similar to yours, which
is how do you get the American people to understand what their
institutions are about. And, in our case, we are not up in some
heaven somewhere where we decree things from on high
communicating directly with some mysterious source, that we are
part of the Government of the United States.
And you are actually interested in the mechanics of how we
bring this about. Good. It means we are not totally off on our
own. And try to explain to people what we do, as you then try
to explain what you do, and you say, We are part of you, and,
you know, you are part of us, and that is talking to the people
of the United States.
So I am glad to have even a little opportunity to talk
about our institution and how it works, and I am glad you are
interested. Thanks.
Mr. Crenshaw. Well, thank you very much.
Justice Kennedy. Mr. Chairman, I just might mention the
Inns of Court, which you alluded to, was the idea of Chief
Justice--former Chief Justice--Warren Burger. He loved all
things English, and he wanted to replicate this structure in
which judges and attorneys and law professors and law students
have dinner twice a month and talk about common issues. And he
did it with Judge Sherman Christensen of--the late Judge
Christensen of Utah. And Cliff Wallace also assisted him, and
it has been remarkable. It costs the government no money. And,
in Jacksonville, Florida, and in Sacramento, California, in
Boston, they have Inns of Court. And it has made a tremendous
difference. People thought, oh, this is kind of an interesting
idea. It has made a real palpable, tangible, visible difference
in the civility that we have within our profession. It has been
a remarkable, remarkable achievement. It was Warren Burger's
idea.
Mr. Crenshaw. That is great because it really is there to
promote civility, to boost professionalism, and they are doing
certainly a great job.
As we begin the questions, I can't help but recall the last
time you all were here, I asked you how the Court decides who
they are going to send over to testify before us, and I think,
Justice Kennedy, you replied it is based on merit. And so you
are back again. Good job.
Let me ask you, one of the things that I know there had
been a lot of work being done on the building and grounds. And,
over the last 10 years, I think this committee has spent or
appropriated about $120 million to, for the first time since
1935, do some upgrades, and so I just want to ask for a kind of
an update on how all that work is done. The facade was redone,
I guess north and south. Is that all complete? At one time,
there was a big hole in the ground next door, but since I have
been by of late, everything looks really nice. Can you just
give us an update on all of the work that has been done? And is
that completed and finished?
Justice Kennedy. The $120 million appropriation for the
project for refurbishing of the building is completed. We came
in under budget. And the project has been closed and has been
very, very successful.
Incidentally, the original cost for that was--the original
estimate was $170 million. And I talked with your predecessor
when I got the message, and he said, I think we have got a
problem. I said, I think it sounds too high to me. We hired our
own architect and worked with him. And, in fact, my
recollection is that he did most of his work pro bono. And from
the architect that we hired--he was from the University of
Virginia, taught architecture there--we got it down to 120, and
the building came in under that.
There were some contract claims. One of the problems was
the windows. If you look at our windows on the court, there are
these lovely windows. So to replace the windows, which we had
to do, they measured. They measured the bottom for the width of
the window, and then the height, but they didn't know that it
is not a rectangle. It is a trapezoid. So the window at the top
is slightly smaller, and that is to give it perspective. It was
a brilliant architecture. And so that was about a $15 million
mistake, which we were not going to pay for. But that is the
kind of thing that comes up in the building.
And it is finished. We had to replace all the wires, all
the air conditioning. We had the air-conditioning system from
1938, and when it broke, there was a fellow that was retired in
West Virginia. We sent a police car to get him, you know, and
we said we better fix this. And so that has been done.
The facade is a different project. That is the--some of the
marble was actually falling off. The time has not been kind to
the marble on the building. And so we are still in progress.
The entrance, the west side of the building, is finished, but
the north and south and the east have yet to be done.
Mr. Crenshaw. Gotcha. Let me ask you, and we will have
time, I think, for a round of questions or two. The whole
security issue. You know, the world is--seems to be getting
more dangerous, whether it is internationally or whether it is
domestically. And I know from time to time the Supreme Court
hears controversial cases. And I know that you spend about $18
million a year on security--primarily with the Supreme Court
Police, and I just wanted you to tell us, is that adequate?
And, for instance, if you hear a or are going to hear maybe a
highly charged case, do you have to increase security during
the time those hearings takes place?
Just give us an overall view of how you see--because I was
just in Jacksonville this morning with the folks in the Federal
courthouse, and that is a concern to them in these difficult
economic times to make sure we have adequate security for a lot
of people that are in public service. But give us a little
update on how--is that all being funded? Is that all being
taken care of in terms of security?
Justice Kennedy. It has been. A few years ago, we projected
that we needed more than we ultimately asked for, but we are
now satisfied that we have the right number.
Yes, of course, in high-profile cases or when threat
assessments are going up, we have increased security, but we
can do it all within our existing staff.
Mr. Crenshaw. Thank you.
Mr. Bishop is recognized.
Mr. Bishop. Thank you very much.
When you were last here, we discussed the very real impact
of sequestration. Unfortunately, we still need to discuss that.
I think most people think of Federal grants and programs where
you are able to dial back operations. But it is not the case
with the Federal judiciary. Courts have a constitutional
responsibility, and you cannot control the scope of your
jurisdiction, and you have already undertaken strict cost-
cutting measures prior to sequestration.
I know you can't answer for the entire judiciary, but what
do you see as the continued effects of sequestration? What
concerns do you have if sequestration is continued?
Justice Kennedy. I have not heard the testimony for the
other agencies that come before you, and maybe they all say
that we are all unique; you can not have any sequester for us.
So I do not want to just repeat the argument that you hear all
the time.
But a few things. Number one, we can not control our
workload. It is controlled by forces and factors that are
beyond our direction.
Number two, we have a tradition, as the chairman indicated,
of being very prudent and very cautious. With us, if there were
cutbacks, it would mean delayed processing time of cases, and
it could mean compromises in security. With the courts in
general, it is much more significant. As I indicated, we have
7,900 probation officers, and if they are laid off, that means
more people are in prison at a greater cost. So sequestration
actually works backwards.
Justice Breyer. Yeah, I agree. At some point, you cut back
enough and keep going, you will discover that, unfortunately in
the United States, there are crimes. And people are arrested,
and they are supposed to be tried. And you need a judge, and
you need a jury, and you need a courtroom. And the alternative
is not to have the trial. If you don't have the trial, the
person has to be released, and there we are. And so there is a
minimum. And if you go toward that minimum and beyond it, you
will deprive the country of the services that basically are
needed to run the Government of the United States in this area.
Mr. Bishop. Thank you.
I applaud the Court's ability to find savings in its
budget. Your total fiscal year 2016 request for salaries and
expenses and buildings and grounds does represent a
discretionary decrease of 1.1 percent from fiscal year 2015. It
looks like this is a combination of the construction work being
completed and savings from nonrecurring costs that are
associated with implementation of your new financial system.
Are there program increases you are delaying but you still
feel would be beneficial at some point?
With regard to implementation of your new financial system,
I understand you are leveraging resources from the executive
branch and the Department of Interior, specifically in the area
of payroll and financial tracking. I understand that this move
has reduced your reliance on contract employees, and it seems
to be a great step toward efficiency. Do you find that you are
getting the same level or an improved level of service? Would
you recommend this to other agencies that are looking to reduce
their costs?
Justice Kennedy. Well, I am not enough of an expert to
recommend it to other agencies, but our staff tells us it is
working very, very well. They like it. They like it better than
the outside contractors, and it is much cheaper. We are in
partnership with an agency in the Department of Interior, and
it--which has some similarities to us, and it has been--it has
been the source of--it has generated most of the savings that
we have had over the last few years.
Mr. Bishop. Thank you, Mr. Chairman.
Mr. Crenshaw. Thank you.
Justice Kennedy. Part of the question, Congressman Bishop,
we are not holding back on anything other than we do have this
projection that we may need two more people because of the
electronic filing that we are going to put in place in 2016.
Mr. Bishop. I must remark, thank you very much, Mr.
Chairman, that the answers from our witnesses are so succinct
and to the point and concise.
Mr. Crenshaw. Yeah. We don't--not only do we not get people
requesting less money; we don't get people that speak clearly
and concisely. So congratulations on both fronts.
Now I would like to recognize Mr. Womack.
Mr. Womack. I wish they were all this way.
Justices, once again, it is a great honor to have you
before us. We always look forward to hearing your commentary.
And I am specifically interested in the IT piece of what is
going on at the Supreme Court. These technology changes are
happening so fast, so fast that we get further and further
behind, I think, in trying to keep up with what technology
ought to be able to do for us. And so I am interested in
knowing just how well the IT upgrades are going.
In listening to your testimony, Justice Kennedy, I got to
thinking about our friends over at the VA and the DOD. They are
having such a difficult time coming up with a platform that can
serve a very special group of people to our country, our
veterans, and being able to get these two systems to talk to
one another--do you encounter any of that kind of conflict
within the judicial realm in dealing with matters of
information technology?
Justice Kennedy. My guess is, and Justice Breyer is much
more--is more well versed in this than I am, my guess is that,
by comparison with many other agencies, our problems are
predictable. We know there is going to be a trial with a
plaintiff and a defendant. We know there is going to be an
appeal with an appellant and an appellee. We know there may be
a petition with a petitioner and a respondent. So the universe
of problems is rather well-known and rather predictable. We do
not have to project for uncertainties to the extent--nearly to
the extent that other agencies do--and our system, the legal
system, lends itself very well to the electronic technology.
Justice Breyer. In my own mind, I classify three different
things this technology can do.
One that you heard about, and that is the budgeting, for
example, and things that are technological, and there they have
made advances in getting together with other agencies.
The second, which is coming along and is slower to develop,
is the ability to file briefs and opinions and other things
electronically, which is helpful to the lawyers and it is
helpful to the public because they can get it instantaneously.
Now, that takes some time, but I think it is going along
satisfactorily. And I think that most of the other court
systems, we have this already in many forms. So it can plug
into ours without too much trouble.
The third, which is a little more open-ended--and I put
more weight on it--is, can we use our technology to inform the
public about what we are doing, particularly through our Web
site. And I was talking to people from SCOTUS Blog. I mean,
they do the same kind of thing, and that is not so easy to do,
and we put in a Web site, but the question is, will they use
it. Will people find out? Will schoolchildren find out? Will
some teacher say, Hey, I want to know about this case. I know
how to do it. I get on the Web, and I tell my class. Fabulous,
if we can do that. I got some figures, and we don't--it is hard
to calculate what it is.
We had, according to this, we have in a year 271,530,850
hits, but I wasn't sure what that meant. I mean, is that a lot
or a little? It sounds like a lot to me. It said 75 million a
month, but how do you measure it? And then we tried to get some
comparative figures. It says, well, the White House is way up
there, maybe with 1,000, whatever they are. Rank 1,000, 2,000,
maybe. And you are about, you know, maybe 8,000 or 5,000. And
we are about like 10,000. And the inspector general is like 2
million or something. So it seemed that there is interest in
getting this information.
And how to develop that in a way that is useable over time
and encourages the average American to find out, I think that
is a big project. And I think it will require a lot of
experiment back and fourth, and I think, as I said, you are in
it as much as we are.
Mr. Womack. No question.
Justice Kennedy. I think also, Congressman, it is just
anecdotal, it is only a tentative hypothesis. But I think
electronic information has reduced the number of appeals that
we have because lawyers who are trying a case can just push in
Batson rule, who has presumption, and immediately comes up an
answer, the latest cases. If there is a conflict, it comes up.
I think that this is easier for lawyers and judges to find the
law.
Mr. Womack. With the time that I have remaining, and I know
I am about out of time, at the risk of getting into a
philosophical discussion, I have some very strong feelings
about our capacity to deal with people given our current prison
and local jail overcrowding. It goes all the way from our
county levels to the Federal system, and it seems to me that
our country continues to struggle with what to do and how to
manage--you just can't build enough incarcerating facilities to
deal with the population. It is such an expensive thing. I was
at an event Saturday night in my own district and one of the
county judges remarked to me that there is a chance that their
jail is going to be shut down. The opportunities or the
solutions to these problems seem to be fewer and fewer. So I
kind of consider myself in the camp of we are going to have to
start prioritizing how we deal with this.
And the supervised piece that you spoke of, Justice
Kennedy, about the probations and those kinds of programs is
just a very invaluable tool to our country in helping manage
just how many people we have behind bars at a given time. So I
will just throw it out on the table and yield back my time.
Justice Kennedy. I think, Mr. Chairman, that the
corrections system is one of the most overlooked, misunderstood
institutions and functions that we have in our entire
government.
In law school, I never heard about corrections. Lawyers are
fascinated with the guilt/innocence/adjudication process, and
once the adjudication process is over, we have no interest in
corrections. Doctors know more about the correction system--and
psychiatrists--than we do. Nobody looks at it.
California, my home State, had 187,000 people in jail at a
cost of over $30,000 a prisoner. Compare the amount that they
gave to schoolchildren, it was about $3,500 a year. Now, it is
a difference. This is 24-hour care, and so this is apples and
oranges in a way.
And this idea of total incarceration just is not working.
And it is not humane. The Federal Government built--what do
they call them--supermax prisons with isolation cells.
Prisoners--we had a case come before our court a few weeks ago,
the prisoner had been in an isolation cell, according to the
attorney--I haven't checked it out--for 25 years. Solitary
confinement literally drives men mad. Even Dr. Manette had his
workbench and his cobbler's tools in Tower 105 North--and even
he lost his mind. And we simply have to look at this system
that we have.
The Europeans have systems for difficult, recalcitrant
prisoners in which they have them in a group of three or four.
And they can stay together as a group of three or four, and
they have human contact. And it seems to work much better, but
we haven't given nearly enough study, nearly enough thought,
nearly enough investigative resources to looking at our
corrections system. In many respects, I think it is broken.
Justice Breyer. Just one thing because I want to focus on
one word that I think you said, which to my mind is the
direction of an answer, and that is the word ``prioritize.''
Fine. Who will do the prioritizing? Do you think you can do it
here? You proceed crime by crime. I mean, no matter what crime
you chose, you will find individuals who committed it in a way
that seems to deserve little and some maybe who deserve a lot.
And you can't look at it individually.
You want to have mandatory minimums? I have said publicly
many times that I think that is a terrible idea. And I have
given reasons, which I will spare you. If you want individual
judges to do it--always, completely--you run the risk of non-
uniformity. And, therefore, we have set up rule commissions,
sentencing commissions, and then mandatory minimums.
So it a huge topic. And is it worth your time and effort or
mine to try to work out ways of prioritizing? I think it is. I
think it is a big problem for the country. And so I can't do
anything more in the next minute or 30 seconds or 2 seconds,
than just say I like the word ``prioritize.'' I hope you follow
up it up, and I hope you do examine the variety of ways that
there are of trying to prioritize and then work out one that is
pretty good.
Mr. Womack. I thank the gentlemen.
Mr. Crenshaw. Thank you.
Mr. Rigell.
Mr. Rigell. Thank you, Mr. Chairman.
And, Justices, I join my colleagues, all of my colleagues
in expressing our appreciation for the work that you do, for
serving on the Court, and for your being here today. This is
going into my fifth year serving in the House of
Representatives. It is my first year on Appropriations. And,
really, to have seen this on my calendar and to know this was
coming up, I considered it, as Mr. Womack said, just an honor
to be here and have you here with us today.
I would like to visit the topic of the electronic case
filing system. I would suppose, now, I am not familiar with it,
but if we are going to electronic, that that would mean that at
present it is a physical document that is being received by the
Court? You can elaborate on that if you would like, but then
was any of this commercially available? Or was this like
written exclusively for the Supreme Court, the software that we
will be pivoting to? Justice Kennedy?
Justice Kennedy. I can not answer that. The lawyers have
available to them commercial systems for filing their--for
filing their briefs and so forth. So they are out there, and
there is some competition. There is some competition there.
So far as the court side, how does the court manage it, I
am not sure that there were outside contractors or not.
Justice Breyer. I just learned from Jeff Minear, he said we
developed it all in-house.
Mr. Rigell. Okay. All right. That is helpful.
Justice Breyer, I noted and was intrigued and appreciative
of your comments discussing your desire and really the Court's
desire to get the work of the Court out to the American people
and to engage them in this.
Is there a designated effort, a continued effort, and to
the extent that you are familiar with it--and, by the way, I
actually thought it would be your staff--some of your staff
would actually--and I see that they are here with us--but to
see the two of you actually engaging the committee, I think, is
laudable. I respect and appreciate that.
You may not be dialed in on all the nuances of it, but the
effort to revisit the Web site to keep it fresh and perhaps, to
use the term that is so often being used now, to develop an
app, you know, for the Supreme Court, and maybe there is one
and I just need to be educated about it, but this idea of
engaging the American public, I applaud you for this. It needs
to be done because we only have a healthy republic if our
fellow citizens are engaged and knowledgeable about what is
taking place.
So could you comment on that just a little bit? And you can
run with it if you would like to. Either one of you.
Justice Breyer. Well, I mean, it is my favorite topic.
Mr. Rigell. Okay.
Justice Breyer. But it is particularly hard for us. You at
least can say, you know, we disagree about a lot of stuff in
Congress, but there are elections to resolve it. We have to
say, why should nine unelected people be making decisions that
affect you in an important way? And, by the way, half the time
we are divided; half the time we are unanimous. But when we are
divided, say, 5/4, 20 percent of the time, somebody is wrong.
So these decisions might not be right, and they affect you, and
they are important. Why should you support an institution like
that? We have answers, and so did James Madison. So did
Alexander Hamilton. So did John Marshall. Okay? So there are
answers, but people are busy, and will they take the time to
listen? Okay.
Annenberg Foundation has a whole series of films and
teaching devices. Justice Kennedy gave a speech about this
years ago which, in part, led to Justice O'Connor developing
iCivics, and iCivics has millions of hits and is trying to do
the same thing. They are trying to, in Boston, at this moment--
well, in one week--they will open Senator Kennedy's Institute.
And what that is is a model of the Senate. And there are little
handheld computers, which will make you the Senator, if you are
a school kid, and will then give you problems, and you will
learn how the Senate works. And maybe that will go out over the
Internet to classrooms, and they need one for the House.
Mr. Rigell. Outstanding.
Justice Breyer. And so, gradually, I think, and am very
enthusiastic, that it is possible to use the devices that we
have now----
Mr. Rigell. Oh, yes.
Justice Breyer [continuing]. To teach. When Antonin Scalia
and I have, as we have done, go to Texas and talk to a large
number of school kids and they get interested and they see that
we have differences of opinion that are not personal, and they
see that the agreement is more important than the differences,
fabulous.
Mr. Rigell. Yes.
Justice Breyer. And so there you see the enthusiasm in my
voice, but----
Mr. Rigell. I love seeing the passion.
Justice Breyer. I think it is a great and necessary task.
Justice Kennedy. One of the things we found, Congressman,
is that the information revolution has put law professors back
into the fore. It used to be that we relied on law reviews to
comment on cases. And the law review would take about a year
for the law review article to come out.
But now we have commentary within 24, 48, 72 hours of a
Supreme Court case by experts in cybersecurity law, in criminal
law, in constitutional law. And these are available, first of
all, to the legal profession and the academy, but, second, to
people that are generally interested. There are blogs on the
Supreme Court. And there are, as I indicated, blogs on
different subjects. They are quite detailed. They are quite
interesting. My law clerks read them a lot. I, frankly, don't
read them, but the availability of information, and, as Justice
Breyer indicated, the interest of the citizen and the ability
of the citizen to get it is really increasing remarkable
because of the information revolution.
Mr. Rigell. Yes. Thank you both. Mr. Chairman.
Mr. Crenshaw. Well, thank you.
You know, when you talked about educating the public, the
question always comes up, people suggest that maybe the Court
should televise oral arguments. That people could see firsthand
what goes on. And I know the Court has historically rejected
that. I think it was Justice Sotomayor, before she went on the
Bench, thought it would be a good idea to televise oral
arguments. And then, once she was on the Bench, she changed her
mind and thinks it is not a good idea.
So I just wondered, do you sense any change? Do you think
there will be a day when oral arguments will be on the
television? Do you think that is good or that is not good in
the context of educating the folks? Could you all comment on
that.
Justice Kennedy. The question, do I think there will be the
day, it sounds as if we are more or less behind the times.
Mr. Crenshaw. No. It is just a matter of, you know,
history. I mean, today you would probably reject that.
Justice Kennedy. If you had English-style debating, debate
and you were handed the topic and you had to be either pro or
con, you could make a lot of good arguments for television in
the courtroom. Number one, it teaches. We teach. We teach what
the Constitution is. We teach what rights are. We teach what
responsibilities are. We are teachers. So why don't we go on
the television?
And it would be very good for lawyers who are preparing
to--have not been before us before, who want to see the dynamic
of an argument.
And it is open. The public could see that we spend a lot of
time on patent cases and railroad reorganization cases and so
forth and so that we have a technical commitment. And they
could see, we hope, an argument that is rational and
respectful.
When we are in disagreement, our institution--our
institutional tradition--is not to make our colleagues look
bad. It is to make the institution look good. And part of that
is the way we conduct oral arguments. We are concerned that the
presence of a TV camera, the knowledge that we are going to be
on TV, would affect the way that we behave. And it is an
insidious dynamic for me to think that one of my colleagues has
asked a question just so that he or she could look good on TV.
I don't want that dynamic. We would prefer the dynamic where we
have a discussion in which we are listening to each other, in
which we are listening to counsel, and we think the television
would detract from that.
So you could make good arguments either way, but we--I
think I can speak for most of my colleagues--do not think
television should be in the courtroom. We have audio available,
and the transcripts are available.
The press does a very good job of covering us. The press
has the advantage. They know 3, 4, 6 months in advance what the
issues are. They can prepare the background. They can have
pictures of the litigants and so forth. And then they are all
ready to write the story depending on what we write. So we have
good press coverage as well, but I think the cameras in the
courtroom are not a good idea.
Mr. Crenshaw. Justice Breyer?
Justice Breyer. No. He states the problem. But, by the way,
the oral argument is like 2 percent. I mean, most of what we
take in and most of the decisionmaking is on the basis of
written briefs. Now, the first thing that if the public saw
that on television, they would think that was the whole story.
It is not. It is a tiny part.
Second thing they would think--and because it is true of
human nature and it is a good thing about human nature--we
relate to people we see. We relate to them more than a word on
paper or a statistic. That is nice. It is good. But in the two
people who are having their case in the Court, there isn't like
one is a bad one; one is a good one. And we are not deciding,
really, on the basis for them. We are deciding a rule of law
that applies to 300 million people who aren't in the courtroom.
That is invisible on television.
But then when you come down to it, I am fairly, I guess,
impervious to making myself look ridiculous to getting an
answer to a question that I can best focus by giving some
ridiculous example. And he knows that I do, he is saying. All
right, and they do, and the reporters are used to it, and they
say, Oh, God, but nonetheless, I will do it.
Now, my friends in the press, some of them tell me, You see
if you do that the first time that somebody takes that
ridiculous thing out of context and puts it on the evening
news, particularly someone who is not one of our regulars and
doesn't really understand what is going on.
Now, all of that kind of thing is the kind of thing,
despite the good arguments the other way, that make us cautious
and that make us conservative a small ``c.'' We are trustees
for an institution that had a long existence before us, and we
sincerely hope will have a long existence after. And the worst
thing that any of us feels he or she could do is to hurt that
institution, and that makes us awfully cautious.
Now, all that is the psychology at play. And you say, will
it eventually happen? Yeah. Sure. Because a generation will
grow up that just, unlike me and unlike him, doesn't even know
what it was like before things like that took place, but I
think that is the best explanation that is in my mind as we
both----
Mr. Crenshaw. Well, thank you for that. And I am not one
who has called for having TVs in the courtroom, but I know
somebody wanted to ask that question. So I thought I would just
ask it.
But let me ask you about the Web site just real quick. You
mentioned all those hits that you are getting, and I know when
you had the healthcare arguments, I understand there was just a
whole lot of interest in that. Did the Web site hold up pretty
well? Did it ever crash like some of these other Web sites from
time to time?
Justice Breyer. Just as we have occasional problems like
anyone does, but they are not that many, and they are few and
far between.
Mr. Crenshaw. Thank you.
Mr. Bishop.
Mr. Bishop. Thank you very much. Thank you, Mr. Chairman,
for asking the question that I wanted to ask about transparency
in the Court and televising the proceedings, and I appreciate
your answer very much.
As in past years, our ranking member Mr. Serrano and I
continue to be interested in the increase in the number of
minorities that are selected for Supreme Court clerkships.
Those are prized positions for youngsters coming out of law
school. I know that there has been an initiative in place at
the Federal judiciary to help recruit minorities into clerkship
positions. Do you think that those efforts are beginning to
bear fruit at the district and appellate levels? And are there
similar efforts under way at the Supreme Court?
Justice Kennedy. I think they are beginning to bear fruit,
and we are conscious of it. The district courts and the courts
of appeals are a little bit more open in part because they are
around the country and they take from local schools. Some of us
tend to take from the Ivy League schools. And not that they are
without their pool of----
Mr. Bishop. Minorities.
Justice Kennedy [continuing]. Of minority applicants, but
we are conscious of it. And it is important, and it is a valid,
valid question.
Justice Breyer. When I started on the Court, I don't know
the figures in lower courts, but, I mean, in my own case, it
might have started out that I had to look, you know, especially
hard. I don't now. I mean, it is just--it is not a problem. I
don't think it is--I mean, at least in my case. Maybe that has
been luck. I don't know, but it seems to me if it is at all--if
I am at all typical, the problem has diminished significantly,
really significantly. And I could try to do some counting, but
I can't in my head. You know, I think of the individual people.
Justice Kennedy. In 2014, we had 15 percent minority clerks
on the Supreme Court.
Mr. Bishop. Thank you.
Let me move to another subject area. I know that, at
previous hearings, we have discussed the possibility of
applying the Judicial Conferences Code of Judicial Conduct to
the Supreme Court Justices to make recusal decisions by the
Justices more transparent for the public.
Currently the Code of Judicial Conduct applies to all of
the Federal judges but is only advisory for Supreme Court
Justices.
Do you have any thoughts on the proposals for changes to
that since we last discussed the issue, I think last year? Do
you believe that the Code of Judicial Conduct should apply to
Supreme Court Justices and that recusals should be more
transparent?
Justice Kennedy. You prompt me to go back and do some
research, but my first response to your question is that
recusals are largely governed by statute and by principles that
are not necessarily part of the Code of Conduct.
Now, there is an argument that the reason for recusals
should be more apparent. I am not sure about that. In the rare
cases when I recuse, I never tell my colleagues, Oh, I am
recusing because my son works for this company, and it is a
very important case for my son. Well, why should I say that?
That is almost like lobbying. So, in my view, the reason for
recusal should never be discussed. It is obvious sometimes when
company A is before the Court and our financial disclosure
indicates that a Judge owns a stock in company A, and so that
is fairly obvious.
Justice Breyer. Add one thing--two things.
One is, we all have or access to the volumes of the
Judicial Code of Ethics. And having been there for some time
now, 20 years, I would say I have not seen an instance of
recusal by me or anybody else where the Judge doesn't make sure
it is consistent with the--you know, the problem is consistent
with the Judicial Code of Ethics. So it did say--well, it is
advisory as opposed to compulsory is words. It doesn't really
show--make a difference in practice. Now, well, why not? What
is it I am nervous about? Why not just say, Hey? I am nervous
about this: The Supreme Court is different from a court of
appeals and a district court, and that is true, by the way,
with television, too, interestingly enough. Why is it different
here? Because in the court of appeals, if I recuse myself--or
in the district court--they can get another judge. Judges are
fungible. They are not in the Supreme Court. You can't get a
substitute. And I wouldn't say there is any lawyer in the
country who would do this, but it is logically conceivable that
a lawyer might sometime think of the idea of bringing up an
issue in order to have a panel that is more favorable. I know
no such lawyer. But it is conceivable. And, therefore, I think
we have to be careful because, unlike those in the lower
courts, I can't think, Well, in case of doubt, just recuse
yourself if it is a close case. No. I have a duty to sit as
well as a duty not to sit.
And, moreover, I have a lot on my schedule. I have a lot to
do, as do you, as do others, and trying to make this into some
kind of big issue I would prefer not because, I mean, I would
think no is the answer. I have to make those decisions. I will
make them as best I can. I will do it according to the code of
ethics. And, so far, I have been able to that, and I don't want
it to become an issue. And all that leads me to say, No, I
don't want to have to give my answers if I don't want to, and I
have to--it is a personal decision. I will follow the code and
that, I think, is the best way to run this institution.
Mr. Bishop. Thank you.
Mr. Crenshaw. Thank you.
Mr. Womack.
Mr. Womack. Only one more question, looking for insight
here.
To the credit of the Justices, they get out in our country
and they speak quite frequently to different organizations. I
know Justice Scalia has been in my district once already this
year and I think he is coming back in a month for another
presentation as a guest lecturer.
In many cases, you gentlemen are talking to law students
and people that aspire someday maybe to sit where you sit. What
trends are you seeing? In the medical community, I understand
that we are having trouble finding private care physicians,
just the general type of family practice physician. Most
medical students now are specializing, because that is where a
lot of the money is. But what trends are you seeing in our law
schools with regard to the new lawyer as it were? Is the legal
community blessed with a pretty good crop of young talented
minds, or are there any trends there that you can share with me
that would raise any concerns?
Justice Kennedy. I am not sure. My own background was
private practice in a small town, which I found immensely
rewarding. Now the paradigm for most law students is they think
of their career as a huge firm where they specialize, and the
idea of counseling and meeting with clients and taking
individual cases one by one is no longer the paradigm that they
look forward to.
I sense a change in this. The law schools are concerned
about costs. There is a big argument whether there should be 3
years of law school; maybe cut it back to 2 years, which I
would not applaud. I think that would be a bad idea. But there
is a real cost factor. And I try to tell students that law can
be immensely rewarding as an ethical undertaking, not just as a
way to make a living. And I think these young students are
beginning to be conscious of that. I hope.
Mr. Womack. Any insights, Justice Breyer?
Justice Breyer. I don't have a lot of insight into that.
You have to ask the dean of the law school.
Judging from my law clerks, there is no deterioration of
quality. I mean, they are great, and I hear the same complaints
from the deans that Justice Kennedy does. Money. Suddenly,
maybe in certain areas, they price themselves out of the
market. And maybe that means that you have fewer people who are
applying, and overall things like that adjust over time.
Specialization, major problem. Major. It is so complicated.
When my dad went to law school, he studied contracts,
torts, property. You know, the five traditional subjects, and
they may have added tax and con law by the time I got there.
And now they have everything under the sun, and that is because
there is a demand for everything under the sun. So there we
are. How do we do that? Luckily, I do not have the difficult
job of being a dean of a law school. I have probably what is an
easier job.
Justice Kennedy. One of the things that is happening in law
schools is they do have almost custom-made programs, so that
you can take a degree in law and astronomy, law and medicine,
law and the press, law and music, law and the performing arts.
And this is good. This enables other disciplines to influence
what is being taught in the law school, but it is a complicated
world out there.
Justice Breyer. I mean, I say personally, because having
now grandchildren, I mean, the cost of this stuff is amazing.
And what are we going do about that? I don't know. I don't
know. It is a problem.
Mr. Womack. Finally, Mr. Chairman, I think I say this every
year these two gentleman are before us, but having a wife that
has been a trial court assistant at the state level for 30,
gosh, I don't know, 34, 35 years now, I have a great amount of
respect for the enterprise that these gentlemen represent.
And once again it is a great honor to have you back before
us here today.
And I yield back.
Mr. Crenshaw. Thank you.
Mr. Rigell.
Mr. Rigell. Thank you, Mr. Chairman.
And my final question, I am going to take us back just a
little bit. Justice Kennedy, I was intrigued by your remarks
early on, and you referenced, I am not sure if it is an
organization or a process like a dinner that has really had an
impact perhaps on the staff or the Court itself or those who
are around the Court, and I don't know anything about it.
But I do know that where we are as a Nation that in some
ways we are off the track, and as much as caustic tone often
has overtaken the public square, and it makes it difficult to
discern and identify the facts, and then to come to some common
solutions for some of these challenges that we face as a
country.
You seemed excited about it, and I would like to hear more
about it. Civility is not weakness. And so I would like to hear
more about it because you are really bullish on it.
Justice Kennedy. The Inns of Court were the specific
subject that the chairman had mentioned, and these exist in
most major cities and small towns around the country, and they
consist of a group of lawyers, judges, law students, law
professors. They get together and they put on programs, how to
cross-examine an expert, a medical expert, how to give a
closing argument in a criminal case, and so forth; how to make
an argument to a court of appeals.
And then the judges and the attorneys and the law
professors and the students sit down and have dinner together,
so the judge isn't some remote person. He is telling the
attorneys how they can do a better job. The attorneys are
telling the judge how the judge can do a better job
Mr. Rigell. Okay.
Justice Kennedy. And it has been a remarkable influence for
more civility in our profession.
Mr. Rigell. Is this a relatively recent development or has
it been around decades and decades?
Justice Kennedy. I would say 30 years. I would say for 30
years. When Chief Justice Burger mentioned it I thought, well,
it is a good idea, a little bit visionary. But it took off like
a rocket. He was right.
But this whole idea of civility. We are judged around the
world as the guardians and the trustees of freedom, and the
verdict of freedom is still out. People are looking at us. They
are looking at our democracy. They are looking at our civic
discourse. They are looking at our commitment to rationality
and to progress. And I am not sure they always see the right
thing.
Mr. Rigell. I share that.
Justice Kennedy. The Athenians, ancient Athens, Periclean
Athens, took an oath, Athenian citizens took an oath. And the
oath was that they would participate in civic affairs in a
rational way so that Athens will be more beautiful, more
splendid, and more free for our children than it is for us. And
Athens failed because they failed to obey that oath.
Mr. Rigell. It is instructive.
Justice Breyer. One, I have been there for a period of 20
years. I have probably attended an awful lot of Conferences of
the Court, and we have had some pretty controversial cases, and
I will tell the law students, whoever listens, I would say in
that time, I have never once, never once heard a voice raised
in anger in that Conference. I have never once heard any judge
in that Conference say something mean or denigrating of
somebody else. It is highly professional.
I say to law student, ``We get on well personally, and we
disagree about things. So you want to win your case, don't get
emotional.''
``Oh, why not?''
``Why not? You will lose it, you know.''
People say, ``Oh, how emotional you are.'' But that is the
law. That is lawyers. And maybe it actually works better when
you treat people as individuals who have different ideas.
Okay. So that is the general. Then the question is, how do
you get that across? How do you get that across? Well, if you
are being very practical, I have already said, we have
Annenberg trying to do that through storage, we have iCivics,
we have the Carnegie Institute for Education, we have the
Kennedy Institute, we have probably dozens of others. So you
get behind them.
And what can you do with those films? Get Ken Burns. Say,
Ken Burns, why don't we have a set of 10 films, and the first
is the story of the Cherokee Indians where, contrary to law,
they are driven into Georgia, out of Georgia and into Oklahoma,
the President of the United States doing that despite the
Supreme Court.
Let's have General Eisenhower, President of the United
States at that moment, taking those 1,000 paratroopers from
Fort Bragg and flying them into Little Rock so those black
children can go into that white school.
Let's go through a few cases that illustrate very
dramatically and visually what it means to live in a society of
310 million different people who help stick together because
they believe in a rule of law. And a rule of law means the
opposite of the arbitrary. And you are part of that just as
much as we, all right, and so are they. You say part, yes, all
right.
So there is a lot that can be said, and there is a lot that
can be done, and I could not agree with you more on the
importance of doing it.
Mr. Rigell. I thank you both.
My time has expired.
Justice Kennedy. We tell people----
Mr. Rigell. Yes.
Justice Kennedy [continuing]. Congressman, when Justice
Breyer and my colleagues go to events with students, we say,
``Look, the Constitution doesn't belong to a bunch of judges
and lawyers and law professors. It is yours. It is yours.''
Some of the great Presidents weren't lawyers. They were great
guardians of the Constitution.
And institutions have to remember this. Institutions have
their own visibility, their own reputation, their own duty to
inspire others to believe in the system of democracy, these
three branches of government we have. And as my remarks
indicated earlier, when we have disagreements in difficult
cases our mission is to make the court look good, not to make
our colleagues look bad.
Mr. Rigell. Thank you very much. I do appreciate the
comments.
And, Mr. Chairman, I yield back.
Mr. Crenshaw. It reminds me of what Benjamin Franklin
supposedly said after the meetings were taking place as our
country was getting started. And I understand a lady asked,
``Sir, what have you given us?'' And Benjamin Franklin said,
``I have given you a republic, if you can keep it.'' And here
we are 200 years later.
Let me ask a quick question. I have read, Justice Kennedy,
from time to time, and I don't know if it is still the case,
but you had expressed some concern about the increasingly
politically charged issues that are now being heard and decided
by the Supreme Court. Can you explain what that concern is? And
does Justice Breyer share that concern?
Justice Kennedy. It is not novel or new for Justices to be
concerned that they are making so many decisions that affect a
democracy. And we think a responsible, efficient, responsive
legislative and executive branch in the political system will
alleviate some of that pressure.
We routinely decide cases involving federal statutes, and
we say, ``Well, if this is wrong, the Congress will fix it.''
But then we hear that Congress can't pass a bill one way or the
other, that there is gridlock.
And some people say, ``Well, that should affect the way we
interpret the statutes.'' That seems to me a wrong proposition.
We have to assume that we have three fully functioning branches
of the government that are committed to proceed in good faith
and with good will toward one another to resolve the problems
of this Republic.
Mr. Crenshaw. Kind of the same thing.
Mr. Bishop, you have another question.
Mr. Bishop. Thank you very much, Mr. Chairman. I will be
brief.
I notice that the Court's caseload is much lower compared
to previous years. The current range of cases is literally half
of what it was 10 years ago. Does the Court have a target
number of cases that you target each year?
And let me just go back to another subject. You talked
about the new crop of young lawyers coming out of law school. I
went to law school because I saw the law as an effective way of
promoting social change. I came out of law school in 1971, and
I was a part of the civil rights movement in interpreting the
Civil Rights Act of 1964. And so I am very sensitive to the way
that the law can be used to perfect social change and has been
in the way the Constitution has evolved.
But there are reports from judges all across the country
that the recession has not only caused a spike in the number of
pro se litigants in civil cases, but has negatively affected
the parties themselves and the courts.
Do you believe that our justice system loses its
effectiveness when citizens are unable to afford legal counsel
in cases with stakes involving family, shelter, and livelihood?
If so, can you perhaps give us some thoughts of how the problem
can be remedied with more resources being allocated to pro bono
or to legal aid services?
My major piece of litigation of civil rights was on behalf
of 6,000 African American inmates in the Georgia State Prison
who were in a desegregated system occupying the same space as
4,000 white inmates, and it was certified as a Rule 23 class
action case. Judge Alaimo decided it in the Southern District
of Georgia back in the 1970s, which resulted in a total change
of the criminal justice housing system and the system as a
whole, relieving overcrowding.
It was brought pro se, and I happened to be a cooperating
attorney associated with the NAACP Legal Defense Fund. I
handled that case, and the NAACP Legal Defense Fund, as a pro
bono firm, backed it up. So it was at no charge to the
litigants. But there are not that many of those kinds of
opportunities in there with the economic recession and with pro
se litigants, particularly on civil cases.
How do we deal with that in terms of making sure that our
justice system really is not turning on the capacity and the
financial resources of the litigants?
Justice Kennedy. As to just number of cases, the first part
of your question, is there an optimal amount that we strive
for. We take the cases where we think our guidance is needed.
As you know, we wait for courts of appeals or state supreme
courts to be in conflict. And optimally we probably should have
about 100 cases a year. When I first came, we had something,
160, 180. It was just far too many.
The cases we do get now, I think anecdotally, I haven't
seen studies on it, are somewhat more difficult. Patent cases,
we had a case, I think it was two terms ago, on the
patentability of DNA. I read all summer long about it to try to
understand it. It ended up Justice Thomas wrote the opinion, a
very good opinion.
So I think our cases are more technical. And the 78 cases
that we had last year exhausted us. But optimally we could
handle, I think, about 100. But we wait, because we wait until
our guidance is needed.
On the broader question of representation in civil cases, I
saw some numbers in which the number of unrepresented parties
in civil litigation is actually increasing because of some of
the factors you mentioned. The Congress has enacted bankruptcy
laws which are, I think, well suited to a modern society. The
bankruptcy reform statutes are good. And so I don't think there
is any real problem in the bankruptcy area. Our bankruptcy
judges are just very, very good. So that system, I think, is
working.
But in the area of standard civil litigation, I think there
is a problem with unrepresented parties, and law schools can
and probably should do more, and they should focus again on the
small cases, not big firm stuff.
Justice Breyer. I had a couple of things.
On the number of cases, there is a big decline beginning
really in the late 1980s. Now, the way we select cases, almost,
almost entirely, almost, not completely, but almost entirely is
you look to see if the lower courts have come to different
conclusions on the same question of federal law. Now, they do
or they don't. And if they do, we will probably hear it. And if
they are not, we probably won't.
Now, there are other things, holding a law
unconstitutional, et cetera, but that is the main thing. So I
have not noticed any tendency whatsoever to try not to take
cases. Rather, Sandra used to sit there, O'Connor, and say,
``We have got to take cases.'' Now he does it, ``Can't we take
some more cases?''
So the conflicts are less. Now, why? And my own
explanation, which has no particular validity, is that you have
seen in the 1970s and 1980s, what you saw, from the 1960s when
I was a law clerk, 1960s, 1970s, 1980s, on, tremendous civil
rights laws, statutes of all kinds, Title VII, a civil rights
revolution, a revolution beyond that in the way that the first
10 Amendments apply to the States.
Well, for a lawyer every word in a statute and every new
major case is a subject of new argument. You pass statutes with
50,000 words, you will get 50,000 cases.
Now, suddenly there has been in Congress a kind of
increased legislation and major statutes, and those statutes
are long and they have many words. So we can predict whether I
am right or not, because if I am right--there is a lag, you see
there is a lag because they all have to--5 years, 7 years from
now we will see the number of cases in the Supreme Court
growing because those words will be capable of different
definitions and judges will have reached different conclusions.
Now, I don't know if that is right. It is a theory, okay.
On the representation, I did look at some numbers a few
years ago. We are way behind compared, say, to England or to
France. And part of it is in England there is an appropriation,
and I don't know where it is on your list, and that is a
problem. And in England, by the way, where they had a very good
legal representation system in civil matters, they are running
under budget pressure, and the lawyers who are in this field
are all worried that there are cuts, and there are.
In France, they have a different idea, which is sort of
interesting. The bar itself provides a lot more free
representation than here, but there is a price to be paid. The
price to be paid is that the individual lawyers and the bar
will be ruthless in segregating the sheep from the goats.
So if you go to a lawyer you will get your free
representation if you can't afford it at the cost of having him
and/or her and his colleagues, you see, going through your case
and making a ruthless decision about whether they think they
really can win it. But the result of that is the people they
think they have a good shot, they will get the free
representation, much more even than in England.
Mr. Bishop. Thank you.
Mr. Crenshaw. Well, thank you.
And I think it is important to recognize that the
significance of the work that you all do is certainly not
proportionate to the budget that you submit every year. But we
do thank you for the work that you do to make sure that you are
spending the money wisely.
And thank you for being here. I think we all appreciate
your wisdom and your insight. I know I always learn something.
And on a personal note, I want to thank you publicly. A
couple of years ago, when we had concluded most of the
business, I was troubled by a quote that I had read in law
school that I didn't know who the author of the statement. It
always struck me as interesting because it went like this:
Versatility of circumstance often mocks a natural desire for
definitiveness.
And I asked, since we didn't have anything else to do, I
asked you two gentlemen who said that and where, and I think
Justice Breyer said, ``Why don't you google it?'' And I said,
``I already did.''
But when you think about that statement, I think Bob Dylan
might have said it differently. He wrote a song called,
``Things Have Changed,'' and I can understand that a little
better.
But the good news is that because of the cooperation of you
two gentlemen, I now know that Felix Frankfurter said that, and
he said in the case called Wiener v. U.S. or U.S. v. Wiener.
That was interesting because I think President Eisenhower was
the President and he wasn't supposed to do something, but he
did it anyway, and therefore Felix Frankfurter said that
versatility of circumstance often mocks a natural desire. So he
did what he wasn't supposed to do, and Justice Frankfurter said
it very well, things have changed.
So I always learn something. We thank you so much. It is an
honor for us to have you before us. Thank you for the work that
you do for this country. And this meeting is now adjourned.
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Wednesday, March 25, 2015.
THE JUDICIARY
WITNESSES
HON. JULIA S. GIBBONS, CHAIR, COMMITTEE ON THE BUDGET, JUDICIAL
CONFERENCE OF THE UNITED STATES
HON. JAMES C. DUFF, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED
STATES COURTS
Chairman Crenshaw's Opening Statement
Mr. Crenshaw. The hearing will come to order.
And, first, let me welcome some judges and managers from
the court units around the country, sitting out back there
somewhere. You are here, and we appreciate you all being here.
And I will announce to our witnesses today that I have
spent some time in Jacksonville, Florida, with some of your
colleagues on the Federal court, so they paved the way for your
testimony today, and we look forward to that.
But let me just say good morning to Judge Gibbons, good
morning to Director Duff, and thank you for appearing before
the subcommittee today.
Mr. Serrano. Mr. Chairman?
Mr. Crenshaw. Go ahead.
Mr. Serrano. I also want to join you in welcoming the
judges, because I understand there is one here from the Eastern
District of New York, Judge Italiano. Incredible name for a
Puerto Rican, ``Italiano.'' But I just wanted to say hello.
Mr. Crenshaw. Great. Great.
Judge Gibbons, this is the 11th time that you have appeared
before this subcommittee. That is an impressive batting
average, and we appreciate your service and willingness to meet
with us.
Now, Director Duff, welcome back to you. This is your
second stint as Director of the Administrative Office of the
U.S. Courts, but this is your first appearance before the
subcommittee since your appointment in January.
So we are glad you are both here, and we thank you for
being here.
The work of the judiciary is critical to the preservation
of our Nation's fabric, where each of the three branches have
different responsibilities and checks on each other. Americans
depend on an open, accessible, well-functioning Federal court
system to resolve criminal, civil, and bankruptcy disputes.
Now, the courts must have the trust and respect of the citizens
of our country; that is the way the Founding Fathers set it up.
In addition to the judiciary's other work, you have
probation and pretrial officers. They are performing critical
public safety missions by supervising more than 200,000
offenders that are living in our communities and defendants as
well.
As you know, the Federal Government continues to operate in
an environment of limited resources. However, we will try to
ensure you have the resources needed to accomplish your
important mission. Over the past few years, you and your staff
have worked closely with us to make sure that the judiciary
receives increases to address only your most critical needs.
And I thank you for your efforts to reduce costs during these
challenging financial times.
The judiciary's fiscal year 2016 budget request proposes a
discretionary spending increase of $264 million. That is a
little less than 4 percent. And I can tell you, that is a whole
lot less than the IRS when they ask for 18 percent or GSA when
they ask for 12 percent. So we appreciate your stewardship.
But the budget resolution reported by the House Budget
Committee just last week only contemplates about a one-quarter-
of-1-percent increase in total discretionary spending. But that
is the job of the Appropriations Committee, to take the money
we have and make the right choices, right priorities. So we
want to work with you, want to work with the Ranking Member
Serrano to make sure that we can identify any savings and then
still provide you with the resources you need to fulfill your
constitutional duties.
So I appreciate the important work that you do. Glad you
are here today.
And now I would like to recognize my good friend, the
ranking member, Mr. Serrano, for any comments he might have.
Ranking Member Serrano's Opening Statement
Mr. Serrano. Thank you, Mr. Chairman.
I would like to join you in welcoming Judge Gibbons and
Director Duff back before the subcommittee. As you said, Judge
Gibbons may hold the record for appearing before us or any
subcommittee in Congress. And while Director Duff was away for
a while, he couldn't stay away. We just drew him back, and here
he is again.
So welcome back to both of you.
The Federal judiciary as a third branch is an integral part
of our constitutional democracy, but it cannot properly
function without the support of this committee. We have all
seen the problems that sequestration caused for our Federal
court system, our pretrial and post-release probationary
services, and for our Federal defenders, among others.
Thankfully, Members of both sides of the aisle have
realized this and have worked to restore the services and
personnel lost by the Federal judiciary due to sequestration.
Last year's appropriations bill, for instance, included an
increase of $182 million over the prior year's appropriations.
And your budget request for fiscal year 2016 continues to work
to rebuild and invest in the future of our court system.
However, as we consider this request, we are confronted
with the same problem which caused such difficulties for the
Federal judiciary just a few years ago: sequestration. It is in
the best interest of the Federal court system, the American
public, and our constitutional protections that we avoid
repeating the damaging impact it had.
As you know, I am also interested in ensuring that our
Federal defenders have sufficient funding to perform their
important constitutional role that has been assigned to them.
Most defendants in Federal criminal trials depend upon the
assistance of Federal defenders, but the FD offices were highly
impacted by the last round of sequestration, with numerous days
off and staffing cuts. I understand that the Federal judiciary
has been in the process of reviewing the appropriate funding
levels for our defenders, and I hope that we will see the
results of that analysis soon.
I am a strong believer in the procedural guarantees that
our Constitution provides: access to a fair and speedy trial
and the availability of counsel in criminal cases for those
unable to afford it, to mention just two. But beyond that, the
Federal judiciary plays an important role in pretrial services,
in determining sentencing guidelines, and in reducing
recidivism through probationary services. It is up to this
committee to ensure these promises and protections,
constitutional and statutory, have meaning.
Once again, we welcome you, and I look forward to your
testimony.
And let me just ask you to consider this. Since I played a
judge on ``Law and Order'' once, am I a member of the bar now
or--okay. Don't answer.
Mr. Crenshaw. You are not eligible for the pension. I know
that.
Mr. Serrano. I am not sure I am eligible for this pension
either.
Thank you, Mr. Chair.
Mr. Crenshaw. Thank you, Mr. Serrano.
And now, Judge Gibbons, we will turn to you for your
opening statement. If you could keep it in the range of 5
minutes, that will give us some time for questions. The floor
is yours.
Judge Gibbons' Opening Statement
Judge Gibbons. Chairman Crenshaw, Representative Serrano,
Representative Bishop, in view of the scheduled votes and
limited time availability today, I think I can do better than 5
minutes. I am going to dispense with a conventional opening
statement and give you more of a laundry list of priorities for
2016 and the high points of ongoing cost-containment efforts.
Thank you for recognizing the group of court executives
here today for a meeting of the Budget and Finance Advisory
Council. They make budget recommendations to the Director, and
back home they do a great job of running the courts smoothly.
I also want to say a big thank you for the 2.8 percent
increase we received for 2015, one that is enabling us to put
the effects of sequestration behind us.
For 2016, we ask for a 3.9 percent increase. A 3.2 percent
increase is required to maintain current services. The rest of
the request is for limited, targeted enhancements that will
help us contain costs down the road or meet other important
judiciary and public goals.
We strongly endorse GSA's requests for $181.5 million to
build a new courthouse in Nashville, the judiciary's top space
priority, and $20 million for the Capital Security Program.
Among our ongoing cost-containment efforts are space
reduction that will reduce our space footprint 3 percent by the
end of 2018, our progress in promoting shared administrative
services in the courts, and certain ongoing IT efforts.
Our requested enhancements include $19 million to pursue
national hosting of IT systems that should save local courts
money. Enhancements that serve the public good include a $6-
per-hour rate increase for panel attorneys representing
indigent defendants and $15 million to enhance public safety by
training more probation officers in evidence-based practices.
In conclusion, as always, I emphasize to the Committee the
unique constitutional role of the courts in our free society
and that all of our duties are derived from the Constitution
and statute.
I ask that you make part of the record the statements of
other judiciary entities on whose behalf we submit budget
requests.
I look forward to answering your questions.
[The information follows:]
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Mr. Crenshaw. Thank you very much.
Director Duff, the floor is yours.
Director Duff's Opening Statement
Mr. Duff. Thank you, Chairman Crenshaw, Representative
Serrano, Congressman Bishop. I, too, will provide very brief
opening remarks in light of the time constraints. Our extended
remarks we would submit for the record, please.
In January, I did return to be Director of the
Administrative Office. I want to publicly thank Chief Justice
Roberts for the privilege of working with our Federal judiciary
again and the privilege of working with you again on the
problems and the challenges that confront the judiciary.
The Administrative Office of the U.S. Courts was created by
Congress in 1939, and it was created to assist the Federal
courts in fulfilling their mission to provide equal justice
under the law. The AO provides support to the Judicial
Conference and its 25 committees as well as to more than 30,000
judicial officers and court employees, some of whom are in the
audience here today.
I join Judge Gibbons in thanking the committee for the 2.8
percent appropriations increase we received in 2015.
We are also very appreciative that the 2015 omnibus bill
included 1-year extensions for 10 temporary district judgeships
whose authorizations expired in 2015. If Congress does not take
action on the judiciary's comprehensive judgeship needs, we
urge you once again to include 1-year extensions for these
temporary judgeships in your 2016 bill.
I echo Judge Gibbons' support for funding that is included
in GSA's 2016 request for a new courthouse in Nashville and $20
million for the Judiciary Capital Security Program.
Cost containment continues to be a primary focus of the
judiciary. We are very grateful that your committee recognized
the judiciary's efforts in that regard in last year's
appropriations, and we hope you will recognize it again this
year.
Some cost-containment initiatives, however, do require
changes to existing law, which we have suggested, and we
appreciate that the 2015 omnibus bill included one of those
provisions. There are several additional reforms--perhaps we
will address some of those in questions this afternoon--that
have been endorsed by the Judicial Conference, as well, that,
if enacted, would produce additional savings in the long run.
For 2016, the Administrative Office's appropriation request
totals $87.6 million, which is a 3.8 percent increase over
2015. This represents a current services budget only. There are
no additional staff or program increases requested by the
Administrative Office of the U.S. Courts.
That concludes my opening remarks, and we would be happy to
answer any questions that you may have.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Crenshaw. Well, thank you very much.
SPACE REDUCTION
Thank you all for your sensitivity to the timing of the
votes that may occur. Please don't let the lack of attendance
here reflect on the importance of the work that you do. This is
a very, very busy time, and there are lots of committee
meetings going on at the same time.
I think you do such a good job of preparing your budget and
dealing with some of the fiscal issues and the cost
containment, that you don't generate a whole lot of
controversy. You should have been here yesterday when the
Federal Communications Commission was here, and it was a very
lively discussion, a lot of controversy. I think they should
take it on the road and sign up with MSNBC and probably
increase their ratings, you know, after yesterday.
But the Supreme Court was here earlier this week, and I
complimented them, we all did, because they submitted a request
that is less than last year's. And I told them, we don't often
get people requesting less than they got the year before. We
also don't get that many witnesses that are clear and concise
in their answers. So I think you fall in that category, as
well. And so I think this could be certainly a very important
hearing, but we appreciate the work that you have done ahead of
time.
So let me just start talking about the rent. I think it is
a billion dollars that you have to pay in rent. I had a
conversation with the folks in Jacksonville, and they have a
Federal building, courthouse that was built for $84 million.
And times have changed, and now a new courthouse costs almost
three times that much.
But they are working on their space reduction, and you are
doing it, as well. Give us an idea of some of the things you
are doing to kind of decrease the need for all that space.
Judge Gibbons. Well, currently, we have a national policy
in place. It is a 3 percent space reduction goal by the end of
2018. At the end of the first year of that, we are basically on
target to meet our goal.
Mr. Crenshaw. Now, how do you achieve that? How do you make
that happen?
Judge Gibbons. Well, the other part of our national policy
is a ``no-net-new'' rule. In other words, if you acquire space,
you have to give up space. That doesn't apply to something like
a new courthouse, but it applies otherwise.
Third, each circuit has had to submit a plan for space
reduction. They have all done that. That is the blueprint for
how each circuit is going to get to the reduction goal.
We are mindful, of course, that at the same time we are
reducing space our rent goes up. So where we end up at the end
of the day is a bit uncertain. But we will be better off than
we would have been if we hadn't done it.
There are many things that a court or a circuit might
identify as ways in which it could reduce its rent bill. One is
through the Integrated Workplace Initiative, which really
designs new workplaces that occupy less space and that take
advantage of the reality of technology and the reality of
telecommuting. Probation and pretrial services officers, for
example, can use technology and be away from the office much
more than they used to be.
Courts have done some creative things. I am really proud of
the fact that, in my circuit, the library gave up all its space
and moved into space that the clerk of court had previously
occupied, which was vacated due to electronic filing. As it
worked out, the floors were already reinforced because of all
those heavy files that they used to hold.
That is just an example of all the creative kinds of things
courts are doing. They have been unbelievably cooperative. We
are really fortunate that everybody appears to be on board and
working toward a common goal.
Mr. Crenshaw. Well, that is great to hear. And we oversee
and fund the GSA, so maybe we will talk to them about the high
rent that they have been charging you, see if we can help you
there.
BUDGET DRIVERS AND COST CONTAINMENT FOR DEFENDER SERVICES
One other quick question, on defender services. I know that
is expensive, and there is a $41 million increase there. Tell
us, why does that--I mean, there has always been an increase
there--why does that happen? And are there things that we can
do, you all can do to kind of save in that area?
Judge Gibbons. We are working on some things. The increase
in the Defender Services account is really based on the same
things, for the most part, that drive the increase in the
Salaries and Expenses account: rent, increased benefit costs,
COLAs if there is a COLA for the executive branch, general
inflation, just all the things that are cost drivers.
[The information follows:]
[Clerk's note.--Subsequent to the hearing, Judge Gibbons
provided the following additional information:]
The fiscal year 2016 appropriations request for Defender Services
is a net increase of $41.1 million over the fiscal year 2015
appropriated level. The increase is composed of two elements: a $1.8
million program increase to raise the non-capital panel attorney hourly
rate by $6 per hour and a net increase of $39.3 million for various
adjustments to base needed to maintain current services. The
adjustments to base can be further broken down into the following
components:
+$15.8 million for standard adjustments to pay and
benefits;
+$3.2 million for increases in space rental costs
and other inflationary adjustments;
+$5.0 million for high threat trial requirements;
+$40.0 million needed to maintain FY 2015 service
levels due to an anticipated decline in non-appropriated
funding (i.e., unobligated balances); and
-$24.7 million to reflect a small increase in
projected federal defender organization caseload and a larger
decrease in projected panel attorney caseload.
Of course, if there is a panel rate increase, that would
increase the cost in that area. But panel attorney
representations are projected to decline. Caseload affects
defenders and will affect them more so when the new work
measurement formula is in place.
In terms of things we are trying to do in that area to
contain costs, we are implementing electronic vouchering, which
ought to really enable us to keep a better handle on requests
for panel attorney payments. We are encouraging the defenders
to do some of the same sorts of things we are encouraging
courts to do, such as look at space reduction, shared services,
and those kinds of things.
They have done some things independently that involve
working with the Justice Department to decrease the cost of
electronically maintained discovery. We have case budgeting
positions, and we will have them pretty soon in nine of the
circuits. They help with budgeting on mega cases, but, in my
circuit, our case budgeting attorney is also enormously helpful
in reviewing vouchers that aren't mega cases but just seem kind
of high for one reason or another.
So those are some of the things that we are doing in that
area.
Mr. Crenshaw. Great. Well, thank you very much.
Mr. Serrano.
IMPACT OF SEQUESTRATION ON THE JUDICIARY
Mr. Serrano. Thank you, Mr. Chairman.
I was taken by your comments about taking the FCC show on
the road. I can tell you, as a strong supporter of net
neutrality, that it may be playing at a court near you pretty
soon, you know. I suspect that it will be taken up that way.
As brief as you can because of the time restraints--first
of all, let me say that what you saw last year is the respect
that we have for the third branch. We may disagree on things,
but when it comes to the judiciary, I believe both parties
understand the constitutional role you play and how you have to
be protected and helped in every way to accomplish that role.
Judge Gibbons. We are deeply appreciative of that and the
support both of you have given.
Mr. Serrano. That is why I said it, so you could say that
again.
Judge Gibbons. We are deeply appreciative.
Mr. Duff. I echo Judge Gibbons' comment.
Mr. Serrano. Next year she will say it in Spanish too.
Very briefly, the hit that everyone took with
sequestration, notwithstanding what happened last year, if
sequestration stays around, what effect did it have, very
briefly, and what effect will it have?
Judge Gibbons. If sequestration occurs again, of course, we
are not sure at what level it would be, but let's assume a
level that is commensurate with the 2013 levels. I have some
figures here that tell us what the impact would be.
We would have to reduce staffing by 520 positions, or a
total of 260 FTE. We would have to defer paying panel attorneys
for a month. We would have to defer about half of our equipment
purchases that we would make for court security. That would be
a reduction of about $22 million. There is another cost in the
court security account, which I am a little fuzzy on right now.
It must have to do with reducing court security officer hours.
So those are some of the things that would occur. We could
continue to pay fees of jurors, we believe.
The reason it is so devastating is because we need 3.2
percent for current services. If you take us back not only to a
hard freeze but back beyond that, the effect is pretty quickly
devastating.
Mr. Serrano. Uh-huh.
Mr. Duff. I would just add, Congressman Serrano, that the
courts perform extraordinarily well in a crisis. They respond
to crisis very well. We are very well equipped to do that. But
a sequestration impact has the effect of a constant crisis. I
don't think the courts really could sustain the workload that
would be imposed on them under those kinds of annual
constraints.
Judge Gibbons. Actually, Representative Serrano, I think it
would be even worse than I just told you because I think what I
just gave you were the hard freeze figures, not the
sequestration figures.
So, we are talking about funding levels way below a hard
freeze. I think it would be something like $700 million in
total below a 2016 current services appropriation, which
doesn't give you the specific account figures.
[The information follows:]
[Clerk's note.--Subsequent to the hearing, Judge Gibbons
provided the following additional information:]
As indicated in the transcript, the impacts cited in Judge Gibbons'
remarks are those associated with freezing fiscal year 2016 funding at
the fiscal year 2015 level. A return to the fiscal year 2013 post-
sequestration funding level would represent a cut of $500 million (7.4
percent) below the judiciary's fiscal year 2015 enacted level and a cut
of $700 million (10.2 percent) below a fiscal year 2016 current
services level.
The Salaries and Expenses account would be reduced by $552 million
(11 percent) below a current services level, resulting in the projected
loss of 5,000 judiciary employees--25 percent of current on-board
staff--in clerks of court and probation and pretrial services offices,
or the furlough of employees in those offices for 63 days per person
(or some combination of both). Further, non-salary operating costs
would be slashed 33 percent.
The Defender Services account would be cut by $70 million (6.6
percent) below a current services level, forcing the judiciary to defer
panel attorney payments for approximately two months.
The Court Security account would be cut by $62 million (11.6
percent) below a current services level, resulting in cuts of $22
million (50 percent) to security systems and equipment and $40 million
to contract guard services, equal to a reduction of 26 work days per
court security officer position.
IMPACT OF FISCAL YEAR 2015 FUNDING ON DEFENDERS
Mr. Serrano. Let me briefly, just because my time is going
to run out--on the public defenders, one of my favorite folks
that I talk about, how much did the 2015 budget make up some of
the pain they have suffered before?
Judge Gibbons. They have not hired this many, but we have
the funds for them to hire within a few employees of the number
they had at the end of 2012. They had something like 2,763 FTE,
and we can get them back to 2,713, I think.
[The information follows:]
[Clerk's note.--Subsequent to the hearing, Judge Gibbons
provided the following additional information:]
Federal Public Defender Organizations (FPDOs) ended fiscal year
2012 with 2,764 FTE. Then sequestration occurred, and FPDOs lost about
400 FTE as a result. There were substantial additional losses among the
grantees in the Community Defender Organizations (CDOs).
Since reaching their lowest staffing level of 2,358 FTE in March
2014, FPDOs have hired a net increase of 198 FTE, reaching a total of
2,556 FTE as of March 8, 2015. While this is still below the staffing
levels assumed in the fiscal year 2015 financial plan, hiring will
continue throughout the fiscal year and FTE levels will continue to
increase accordingly. The financial plan assumes that FPDOs will
utilize 2,713 FTE in fiscal year 2015.
Funding provided by Congress in fiscal years 2014 and 2015 made
these staffing increases possible (as well as staffing increases at the
CDOs). In addition, new funding has allowed the judiciary to avoid
deferrals of panel attorney payments and to discontinue the temporary,
emergency panel attorney rate cut that went into effect after
sequestration.
Mr. Serrano. Thank you, Mr. Chairman.
Mr. Crenshaw. Thank you.
Mr. Bishop is recognized.
Mr. Bishop. Thank you very much.
COOPERATION BETWEEN THE JUDICIARY AND GSA
The President's budget requests $181.5 million for a new
courthouse in Nashville. It is only the second time in 6 years
that the President's budget has included funding for a project
in the Judicial Conference's 5-year courthouse construction
plan. The Nashville project has been on the 5-year plan for
nearly 20 years, and there seems to be a disconnect between the
judiciary and the executive branch in this regard.
How does the judiciary work with GSA to identify funding
priorities and to ensure that these funds are requested and, if
appropriated, are utilized in the most reasonable and efficient
manner? Does there need to be a shift in jurisdiction to ensure
maximum effectiveness and efficiency in that regard?
Judge Gibbons. Well, I think if you asked most judges if
they think the current system is an ideal one for good
government, the answer would be no. On the other hand, we do
work well with GSA on a day-to-day basis on many, many fronts.
We have to. They have to work well with us.
But it is sometimes hard to get our priorities to the top
of the list of their priorities because they have many other
priorities. It took a great deal of effort and a great deal of
working together to get the Nashville courthouse as the first
courthouse construction project requested since 2010.
So there would have been a time when we might have answered
your question about restructuring with, ``Oh, yes, we would
like to have authority to build and maintain our own
courthouses.'' We are smart enough today to know that, with
limited resources and with the fact that we don't have
personnel or other capabilities to go into the building
management business, restructuring it is just not realistic for
anybody in light of the circumstances.
Mr. Bishop. Thank you.
CAPITAL SECURITY PROGRAM
In my district, the Federal courthouse in Columbus,
Georgia, has been ranked one of the worst Federal courthouses
with respect to safety over the past several years. In fiscal
year 2015, $20 million was appropriated to fund the Judiciary
Court Security Program. I understand that this funding will
support projects in Columbus as well as in Monroe, Louisiana,
and Texarkana in Texas and Arkansas.
When are these projects expected to be completed? Can you
elaborate on the progress that has already been made on
improving the security at some of our older courthouses using
this funding? What do you expect to accomplish in this area
over the next year? How will you prioritize the projects in
order to make the best use of the appropriated funds?
Mr. Duff. In part, the security initiatives that we have
undertaken have been in recognition that courthouse
construction is going to be limited in these times of budget
constraints.
Recognizing that some courthouses face security challenges
that need to be addressed whether or not a new courthouse can
be constructed, we have reprioritized and carved out instances,
such as the courthouse in Columbus, Georgia, for special
attention on security needs. We are working very closely with
GSA to identify those courthouses that have security needs
above and beyond new courthouse construction needs.
[The information follows:]
[Clerk's note.--Subsequent to the hearing, Director Duff
provided the following additional information:]
Security deficiencies at court occupied facilities are identified
as part of the judiciary's Asset Management Planning process and also
through security evaluation site visits conducted by AO staff.
AO staff develops a preliminary list of court occupied facilities
where alterations and construction of building-specific security items
in a Capital Security Program (CSP) project would improve the level of
security provided for judges, employees, and the public. A Capital
Security Study that identifies possible solutions to address those
security needs is then developed in coordination with GSA and the U.S.
Marshals Service. A Capital Security Study provides the preferred
security improvement plan and a cost estimate for the project. Funding
for approved projects is provided through the GSA budget.
While the CSP may address the security deficiencies in a building,
it does not address situations where a facility has both security
deficiencies and insufficient functional operational space. In those
circumstances, the only resolution is to build a new courthouse or
annex that satisfies the court's needs.
Again, I will reiterate that we are very pleased that the
President included in his budget funding for the construction
of the Nashville courthouse. That is needed on every front.
But the security challenges that are faced in specific
courthouses are being addressed in a prioritized way. We are
fairly pleased with the progress that is being made on
renovations to improve security. We have worked closely with
GSA in that regard.
Judge Gibbons. Representative Bishop, my information shows
that the Columbus courthouse, in particular, is a project for
this fiscal year. It is to cost $6.7 million. The security
deficiencies that would be addressed have to do with enclosing
a sally port, adding elevators for prisoners and judges, and
reconfiguring and constructing new corridors.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Judge Gibbons. Before a project like this is approved, we
do a study to determine the most feasible alternative and the
preferred plan and cost. We do a prioritization, working
closely with GSA and the Marshals.
Mr. Bishop. Thank you.
I think my time has expired, Mr. Chairman.
Mr. Crenshaw. Mr. Serrano has a quick comment.
Mr. Serrano. Yes, Mr. Chairman. I want to clarify
something. I can't believe that I misread the note in front of
me that was given to me, and they were talking about Judge
Vitaliano, who is a person that I have known all 41 years that
I have been in public office. And I wanted to make sure that he
understood that, when I saw the face, I said, oh, my God, it is
my friend from 41 years ago.
Thank you.
Mr. Crenshaw. Now Mr. Yoder is recognized.
Do you see any friendly faces out there?
Mr. Yoder. Thank you, Mr. Chairman. I appreciate the
latitude.
Mr. Serrano. I don't think he is 41 himself.
TEMPORARY JUDGESHIPS
Mr. Yoder. I wanted to highlight--first of all, thank you
for coming to the committee.
Good to see Judge Gibbons. I know you have been before us a
number of times.
Administrator Duff, thank you for being here, as well.
Each year, we deal with the issue related to temporary
judgeships. And I noted in your testimony you highlighted this
issue again. One of these temporary judgeships happens to be in
my district, and so we are always watchful and concerned and
worried and making sure that the committee and chairman and
everyone is aware of the importance of these temporary
judgeships.
And should we not extend them in the appropriations bill
and a vacancy were to occur, the position would evaporate. The
caseload wouldn't evaporate, the workload wouldn't evaporate,
but the position would overnight. And so it is a tenuous
situation to be in.
And I note there are maybe nine districts total, positions
like that, that are around. You might clarify. But I just think
it is a tremendous stress to put on these folks to have to
worry about this and to come up each year and for our committee
to keep doing this work.
And so I thought if you might just expound upon that point
a bit--I wanted to highlight it for the committee; I know it
was in your testimony--and maybe suggest what probably is an
obvious long-term solution to this issue.
Mr. Duff. Well, the ultimate long-term solution is the
creation of a new judgeship. Where we have temporary
judgeships, we have asked for permanent judgeships in 9 of
those 10 districts.
We also recognize the budget constraints that accompany the
creation of a new judgeship. So, in the short term, what we
would ask the Committee is, if the funding is not available for
the creation of new judgeships where our statistics demonstrate
they are clearly justified, that the temporary judgeships be
extended. Because, as you pointed out correctly, if they are
not extended, the workload doesn't go away. It just doubles up
the work for the other judges in that particular district.
So, in 9 of the 10 districts with temporary judgeships, we
have asked for permanent judgeships. By ``we,'' I mean the
Judicial Conference of the United States at its March
conference, just a couple of weeks ago. If permanent judgeships
can't be created, we would ask that the temporary judgeships be
extended.
You also correctly point out that it is difficult for staff
to wonder what is going to happen. So for planning purposes, it
is good to know whether these temporary judgeships are going to
be extended as soon as we can.
Mr. Yoder. It seems to me that the only reason we haven't
been able to fix this is internal scoring rules that Congress
uses that would say if you extend them permanently, now it has
a 10-year budget impact, but if you extend it year to year, it
only has a 1-year impact, which is a budgetary gimmick that
occurs in Washington that has little relevance to people
outside of these rooms that we debate policy in, and it does
have an impact on people who are doing the work back home. So
it has a negative impact on people at home, and it has no
benefit here, other than a scoring issue, which is created by
our own interior rules.
So I would love to see those extended. And I believe the
committee will keep extending the temporary ones, therefore
having the same budget impact if we made them permanent anyway.
COSTS OF LITIGATING NEW LEGISLATION
The other issue I wanted to raise is one that sort of came
up yesterday. And my good friend of at least 39 years, Mr.
Serrano--I am 39 years old--brought up earlier that he is a
strong proponent of net neutrality. And one of the issues that
came up yesterday is the cost to government and the system to
defend net neutrality and an estimate of what that might be,
litigation costs.
And I just wonder, you know, we have had Dodd-Frank, we
have had the Affordable Care Act, we have had a number of bills
that are being litigated extensively in the courts. And I
wondered if the court ever looks at the cost of litigating a
new law and if we could estimate how much traffic we create
with legislation that either isn't written properly or isn't,
you know, well established or just has a lot of things that
need to be sorted out by the courts.
Judge Gibbons. We do, of course, look at workload figures
and weighted caseloads, and we, of course, know that certain
kinds of litigation create a great deal of work for the courts.
Some legislation we do get involved in opposing if it has a
direct impact on us. For example, we have a position with
respect to immigration reform legislation, in that we don't
want additional resources given to the Department of Justice
that will impose many additional burdens on the judiciary.
But for legislation where the impact is less apparent, we
don't want to involve ourselves politically by saying, this is
going to cause us a lot of hassle. Another area we have had
some thoughts is sentencing reform.
We are affected by whatever litigation occurs, but we don't
get involved on that basis. It is very selective. It tends to
be legislation that we could take a position on appropriately.
Mr. Duff. I would add, Congressman Yoder, that I was here
40 years ago, when I first started working in Chief Justice
Burger's office. It is hard for me to believe it has been that
long. But Chief Justice Burger at one time proposed a judiciary
impact statement so that every law passed by Congress--much
like an environmental impact statement--had to be accompanied
by a judiciary impact statement just to show the budget impacts
of new laws on the courts. I don't think it was embraced, but
it is a good idea.
I appreciate your mindfulness about it, because legislation
does have an impact on the courts and it affects our budgets in
the long run. But Judge Gibbons is right as to our own analysis
of that.
Mr. Yoder. Well said. I appreciate your testimony.
Thank you, Mr. Chairman.
Mr. Crenshaw. Thank you.
Mr. Serrano. 39? I have ties older than you.
Mr. Yoder. I didn't get a birthday card from you this year
either, so----
ROLE OF THE JUDICIARY COMMITTEE IN JUDGESHIP CREATIONS AND EXTENSIONS
Mr. Crenshaw. Mr. Rigell is gathering his thoughts.
Let me point out one thing is, in terms of temporary
judgeships, we typically fund those, and we are from time to
time criticized. That is kind of an authorizing issue.
Ultimately, to create new judgeships, we have something called
a Judiciary Committee, and they are the ones that have the
jurisdiction to create those. And so those that think we need
more judges, you direct your thoughts to them.
I think there is also the question of the confirmation of
Federal judges that linger from time to time, and what that
means is people that are there are doing a whole lot more work.
But I think that the temporary judgeships we recognize are
important, and I think historically we have funded them on this
committee. But to create those new ones, the Judiciary
Committee is going to have to step up.
PRIORITIZATION OF SECURITY UPGRADES
Let me ask, we talked a little bit about security in the
context of new courthouses, but there is $20 million in your
budget for security. And that is obviously very important. In
today's world, you know, no telling who is watching on TV and
decides they don't like one of the Federal judges.
But around the courthouses, the security that you put in,
not so much a new courthouse, but if you are going to upgrade
security, how do you go about deciding that? Because it is
important. But do you look at that really closely to say these
are things that we really need to do to make sure we have the
security that we need?
Judge Gibbons. When there is a capital security project,
first, the Administrative Office identifies a list of needs
based on surveys it has done of the courts. Then there is a
plan that is done, an architectural and engineering plan, that
shows the feasibility of using a smaller, less costly plan as
opposed to building a new courthouse or an annex or something
to take care of a problem.
They look at feasibility, how we go about doing it, and
cost. Then there is a decision made about whether to implement
that, and that is made by the judiciary in combination with GSA
and recommendations of the Marshals. We have a list of the
projects. The Columbus project that Representative Bishop
referred to is one of those for 2015.
[The information follows:]
[Clerk's note.--Subsequent to the hearing, Judge Gibbons
provided the following additional information:]
Security at federal courthouses is governed by a number of guidance
documents and standards. For security systems and equipment, the U.S.
Courts Design Guide and the U.S. Marshals Service Requirements and
Specifications for Special Purpose and Support Space Manual discuss the
planning and design of courthouse security and describe the types of
security equipment that are necessary and appropriate for court
facilities. For court security officers (CSOs), the Marshals Service
maintains a CSO staffing standard that is the basis for determining how
many CSOs a district needs and the specific guard posts that should be
staffed in a facility. Within these guidelines and the available
financial resources, the Marshals Service has the responsibility to
prioritize requirements and make operational decisions about the
adequate level of security at each federal court facility.
Mr. Crenshaw. Gotcha. And I notice in the budget request
there is $7 million for, I guess, security systems, and there
was a $2 million savings that you all had kind of realized,
which helps a lot. And, again, we appreciate your efforts to be
effective and efficient.
GSA RENT VALIDATION
Let me ask you, we kidded about the GSA; you know, they
charge you rent. You are one of the biggest tenants that GSA
has. Do you ever kind of wonder how they decide what the rent
is? How do you see that relationship with GSA in terms of what
they charge you?
Judge Gibbons. This is not the product of a formal
Conference position. It is not the product of anything the
Budget Committee has formally considered.
Many within the judiciary do question whether the rates
charged by GSA are not far above market rates, and----
Mr. Crenshaw. Do people actually do market studies from
time to time and say, gee----
Judge Gibbons. We may have done some. Jim would be aware of
that.
I will say we, from time to time, move people into leased
space, partly because of cost. Now, as we are vacating space in
courthouses, we are seeking to move some people from leased
space back into courthouses. But I am not sure whether the
savings comes from the lesser rent or from the fact that we are
reducing the space.
Director Duff can probably tell you more about the----
Mr. Crenshaw. Well, and, also, how do they deal with you
all? Do they explain--I mean, you have to prepare your budget,
and you have to know what your rent is going to be. Are they
good about communicating with you in terms of what is going on
from day to day?
Mr. Duff. Mr. Chairman, we have developed much-improved
relations with GSA over this very issue, because we did expose
what we thought were overcharges. GSA admitted to those on
further reflection and study. They are cooperating with us
right now on an overall review of rents charged to make sure
that they are indeed market rate and not inflated rates over
the market rate.
So we have come a long way on those very issues. We did
expose some overcharges, frankly, which they graciously
admitted, and we are working better with them now.
Mr. Crenshaw. Well, keep it up, because we want you to get
your money's worth.
Judge Gibbons. One of our early cost containment efforts on
space was our rent validation effort. We are now doing a much
broader effort in full cooperation with GSA to validate
services in every area. It is going very well.
Mr. Crenshaw. Great.
Mr. Serrano.
Mr. Serrano. Mr. Chairman, that is a great point you bring
up. And I had a personal experience where I wanted to lower my
district office rent so I thought of moving to a GSA building.
They were going to charge me more than I was paying where I am,
so I didn't move. And I had no way of arguing with them.
STUDIES OF THE DEFENDERS PROGRAM
On the issue, again, of defender services, I also
understand that you are undertaking a study of the defender
system and developing a rigorous database assessment of
staffing needs. Is there a timeline for the release of that
analysis?
I assume that you will support any needed funding to
implement the recommendations of the staffing study so that
whatever the data requires can be employed properly.
Judge Gibbons. That really encompasses two things: one, the
work measurement study that is underway, and two, a larger
study we are undertaking of all programs under the Criminal
Justice Act.
As for work measurement, the study will be complete this
summer. This is the only information we have at this time, but
initial indications are that it will not reflect that staff
would need to be reduced nationally.
When the Judicial Resources Committee is ready to take it
up in June, they will figure out what to do about
implementation and what their recommendation will be. That will
be approved by the Judicial Conference in September.
We will have to make a decision in July about whether the
new formula should be incorporated into the 2017 budget
request. That is also subject to conference approval. Then the
Executive Committee of the conference, which approves the
financial plan, will have to make a decision whenever an annual
budget is enacted about how, if at all, to incorporate the new
formula.
So that is where we are on that. I would expect that we
will use the new formula, but it is premature to say exactly
how the implementation will play out or what the full results
will be.
Jim can address the study.
Mr. Duff. The second part of this is a Criminal Justice Act
review that we are undertaking. The last such review of the
Criminal Justice Act was conducted between 1991 and 1993, so it
has been quite a while since we have done this.
The Chief Justice is appointing a committee, and it will be
composed of judges, defenders, and criminal justice attorneys.
That committee is being assembled right now, as a matter of
fact, to take a full review of how we might make improvements
or suggest improvements to be made in defender services.
Defenders are going to be very involved in this study.
That has a 2-year timeframe built into it. We hope to have
conclusions and recommendations to the Congress at the end of 2
years.
Mr. Serrano. Okay. Thank you.
THREATS AGAINST JUDGES AND COURT PERSONNEL
Let me take a little time here. When I was chairman of this
committee, when my party was in the majority--it seems like a
million years ago. And we have a great chairman now. We get
along very well.
One of the big issues that he brought up was the security
issue. I would like to take that to another step. At that time,
there seemed to be a lot of threats going on and so on. Has
that decreased? Has it remained the same, the threats against
judges or attacks on court personnel which were taking place in
those days? I mean, it wasn't a very safe place to be, in many
places, for the judiciary.
Mr. Duff. We are always mindful of security, and we are not
immune to attacks. We are, I think, in the same category as
Members of Congress and other high-profile public figures. We
have taken steps. We have coordinated very carefully with all
relevant security agencies. We are doing the best we can with
the funds that we have and----
Mr. Serrano. But if we were to ask you, give us a report,
you know, a written statement on what the conditions are, are
there more threats now? Are there more attacks by people who,
you know, are angry in a courthouse or something?
Judge Gibbons. The U.S. Marshals could tell us that. I
think they keep up with it. It seems to me, during the 30-plus
years I have been a Federal judge, that it has been pretty much
constant that there are some threats. I don't know if I could
identify a time when I feel like the threats have been more or
less, but the Marshals might have a different view.
[The information follows:]
[Clerk's note.--Subsequent to the hearing, Judge Gibbons
provided the following additional information:]
Threats against federal judges are addressed by the U.S. Marshals
Service. As a result, the judiciary does not maintain its own data on
such threats and cannot draw independent conclusions about trends in
the threat level over time.
Upon request, the Marshals Service reviewed the threat environment
over the last five years and reported that, in its assessment, threats
against Marshals-protected judges have remained stable over that
period.
Mr. Serrano. All right.
Thank you, Mr. Chairman.
Mr. Crenshaw. Thank you.
Mr. Rigell.
Mr. Rigell. Thank you, Mr. Chairman.
CHOOSING BETWEEN GSA SPACE AND THE COMMERCIAL MARKET
Judge Gibbons, Mr. Duff, thank you very much for being here
today. And, you know, our judicial branch is widely respected,
certainly far more than the institution that I am privileged to
serve in and even, indeed, the Executive branch. So I
appreciate the good work that you are doing.
And I was a bit late here today, but I had five Gold Star
Moms come by my office. And they were invited by House
leadership because the President of Afghanistan was here and
these mothers lost their sons in Afghanistan.
And so it was just a poignant reminder to me, of course, of
the heavy price that has been paid for our freedom and just
really the privilege that we have to be here today and to work
out our differences and try to resolve these problems in our
representative republic here.
So I thank you for being here and for your testimony.
Now, to the point, let's pick up on the commercial real
estate. Do you feel like, Mr. Duff, that you have the running
room that you need, the flexibility to choose GSA space or to
go outside into the commercial market? And could you walk us
through that concisely and let us know if you got the type of
decisionmaking authority that you need?
Mr. Duff. I think our relations with GSA are improving. I
think the leadership within GSA is working hard with us to
recognize where we have difficulties and challenges.
We are undertaking, as Judge Gibbons testified earlier,
space reduction initiatives to reduce our rent. If you look at
our overall budget of approximately $7 billion, about $1
billion of that is in rent. If the trends continue on rent
increases, that is going to eat up more of our budget.
Mr. Rigell. Right.
Mr. Duff. We are trying to avoid that happening, and that
is really what is driving our initiatives to reduce our
footprint within the buildings.
We have looked elsewhere, where we have needed to and where
we think it is untenable or unsustainable to work under the GSA
rent configurations.
[The information follows:]
[Clerk's note.--Subsequent to the hearing, Director Duff
provided the following additional information:]
Under the terms of the Public Buildings Act, GSA has the authority
to lease space on behalf of the judiciary. As a result, the judiciary
does not and cannot lease space independently in the commercial market.
In terms of flexibility, I would say it is fine for now,
given the improving relations with GSA. That wasn't the case in
my first tenure, although we worked on it.
Mr. Rigell. I am encouraged to hear this, and I applaud--I
am sure it is a result, in part at least, of constructive
engagement with them and talking to them, communication, right?
Mr. Duff. Exactly right.
Mr. Rigell. Okay.
Mr. Duff. I think that the key to successful government,
frankly, is communication.
Mr. Rigell. Right. And so I applaud that.
And I know this is a shared value of the ranking member and
others, and so if we can make a dollar go further and help you
out in any practical way, please let us know.
SENTENCING REFORM
I want to transition to Judge Gibbons, and I am actually
going to toss you a softball here. And it is not for lack of
preparation, it is not, but it is more to really understand how
we might make some constructive changes here in Washington that
will help us to be a safe society and, at the same time, not
incarcerate any more people for any 1 day longer than we need
to.
And it is a wide topic with the time that I have remaining,
but if you would, just--and I am sure you have some thoughts on
this. What would you want us to consider on these larger issues
about corrections generally, which, of course, don't get the
attention generally that is needed? Please. I think you
understand the question. I hope so.
Judge Gibbons. Well, I gather that what you are asking goes
really to the various proposals about sentencing reform----
Mr. Rigell. Yes.
Judge Gibbons [continuing]. And correctional policy.
The judiciary has positions on a number of the various
proposals that have been introduced. There is a group of
initiatives we support, coupled with some we oppose, plus a set
of resource concerns. I am going to try to run through those
quickly.
Mr. Rigell. And let me know if there is one on there that
you really like.
Judge Gibbons. Well----
Mr. Rigell. I mean that. It would be helpful to me.
Judge Gibbons. Well, the judiciary has for a long time
strongly supported the elimination or reduction of mandatory
minimum sentences. We have supported a modest expansion of the
safety valve, which provides the ability to go below a
mandatory minimum in certain situations.
We have supported the reduction of the difference between
the way crack and powder cocaine are treated, and we have
supported retroactivity of that change.
Mr. Rigell. Let me pause for a moment.
Judge Gibbons. Okay.
Mr. Rigell. The crack and powdered issue. Now, I thought
that we had done some work----
Judge Gibbons. You have.
Mr. Rigell. Okay.
Judge Gibbons. And we supported that.
Mr. Rigell. Is that not enough?
Judge Gibbons. Well, there is a retroactivity bill that I
don't think has passed, and so that is still a remaining issue.
Mr. Rigell. Are you willing to kind of go out there and let
us know what your personal view is on that? I am going to press
you just a little bit, but if you are willing.
Judge Gibbons. I am not one of the judges who chafes most
at a deprivation of some discretion in sentencing. It is up to
Congress to make the rules. But I think it has been
demonstrated over a period of time that the original
congressional assessment of the adverse impact of crack cocaine
as opposed to powder just didn't turn out the way Congress
thought.
Mr. Rigell. And I share that view. Okay.
Judge Gibbons. So that is my personal take on it.
Mr. Rigell. Okay. So that might lead us to at least
reconsider with maybe a bias in favor of this legislation and--
--
Judge Gibbons. You have already reduced the crack-powder
disparity to some extent.
Mr. Rigell. That is right.
Judge Gibbons. Whether there would be another reduction
appropriate, I am not really prepared to say without reviewing
the issue again. In terms of applying the reduction
retroactively, the Judicial Conference has supported
retroactivity.
Mr. Rigell. Thank you.
Judge Gibbons. The final thing we support is the amendment
that precludes stacking of Title 18, Section 924(c) violations.
That is carrying or using a firearm during or in connection
with a drug trafficking crime or a crime of violence.
Mr. Rigell. Okay. You have answered my question directly,
and I appreciate it. And you have given me enough that I can
wrestle with this on my own privately and perhaps, you know,
with some followup to your offices.
[The information follows:]
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Judge Gibbons. Well----
Mr. Rigell. But I think that there is a sense within
Congress just generally--it is not the top of the list. We have
the budget and other things that we are struggling with, but
something has to give here, I think, in a constructive way. I
mean, thoughtful and wise reform on the corrections side. And I
think that at least the Members that I know are open to this
conversation. So what you have shared with me today has been
helpful.
Mr. Chairman, I see a red light over there, so I thank you,
and I yield back what time I don't have. Thank you.
Mr. Crenshaw. Thank you.
CONCLUDING REMARKS
We are getting ready to vote, but because of the clear and
concise answers as well as the clear and concise questions, we
are able to finish our work here today.
Let me thank you all for being here. And a special word of
thanks to the folks that are here for the Budget and Financial
Advisory meeting. You are doing a good job of advising these
folks, because you have been very efficient and effective. We
all know that government needs money to provide services, but
right now being efficient is more important than ever before.
So thank you for what you all do as an advisory group.
Thank you for bringing that message to us and the work that you
do. It is very, very important.
And I know Mr. Serrano wants to say goodbye to somebody.
Mr. Serrano. No.
I just want to thank you for the work that you do, for
coming here, all of you for the work that you do.
But I did hear something today, Mr. Chairman, that I can't
end the hearing without saying that it troubles me a little
bit. I don't think we, as Members of Congress, should legislate
with any concern about how much litigation may cost. Our role
is to legislate, and if people don't like it, then they can
sue. Or you can go along with the President's program and don't
sue on anything, which is not going to happen.
But I think it may have a chilling effect. To give you an
example, we have a rule, as you know, in the House that says
that when you put in a bill you have to say what part of the
Constitution that bill will affect. I was tempted once to write
``that part that says that I am a legislator, and I can
legislate,'' but that would have been sarcastic to some people.
So I appreciate what the courts go through. I appreciate
that lately a lot of what has been legislated will be
litigated. But let's be thankful that we live in a democracy
where I can legislate and then the courts can decide whether it
is right or wrong. That makes sense, rather than say, it is
going to cost too much, so don't do that.
But thank you so much.
Thank you, Mr. Chairman.
Mr. Crenshaw. Thank you all.
This hearing is adjourned.
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W I T N E S S E S
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Page
Breyer, Hon. Stephen G., Associate Justice of the Supreme Court.. 107
Donovan, Hon. Shaun.............................................. 1
Kennedy, Hon. Anthony M., Associate Justice of the Supreme Court. 107
Roth, Denise, Turner............................................. 55