March 24, 1977
Page 8977
UP AMENDMENT NO. 94
Mr. MUSKIE. Mr. President, I call up my amendment which is at the desk.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows :
The Senator from Maine (Mr. MUSKIE) proposes an unprinted amendment numbered 94.
Mr. MUSKIE. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows :
On Page 29, strike lines 5 through 12 and insert in lieu thereof the following:
"8. An employee on the staff of a committee who is compensated at a rate in excess of $25,000 per annum and employed for more than ninety days in a calendar year (unless hired on a per diem basis) shall divest himself of any substantial holdings which may be directly affected by the actions of the committee for which he works, unless the Select Committee, after consultation with the employee's supervisor, grants permission in writing to retain such holdings or the employee makes other arrangements acceptable to the Select Committee and the employee's supervisor to avoid participation in committee actions where there is a conflict of interest, or the appearance thereof."
Mr. MUSKIE. Mr. President, I have two reasons for bringing up this amendment: First, I searched desperately for some way of doing something with this bill which would find the distinguished Senator from Wisconsin and the Senator from Maine in agreement. I wanted to make some contribution to this bill which would find us in agreement. That is one of my reasons for offering this amendment.
Second, it is designed to get at what I think is a rather tough provision, which is on page 29. This is in the conflict of interest section. The language to which my amendment addresses itself begins on line 5. What that provides, as in the bill, is that an employee on the staff of a committee who is compensated at a rate in excess of $25,000 per annum and employed for more than 90 days in a calendar year shall divest himself of any holdings which may be directly affected by the actions of the committee for which he works unless he has received permission in writing from his supervisor and the Select Committee on Ethics to retain such holdings. There are two features to that language that trouble me.
One, it seemed to me that the divestiture provision left too few options to the employee or to his supervisor or to the Ethics Committee. In the executive branch, there are other options which are available — disqualification, for example, from engaging in an activity which poses the conflict, or a blind trust, for example, or some other kind of limitation.
Second, I was troubled that this kind of police work was imposed on the chairmen of committees. I happen to be chairman of the Committee on the Budget, on which there are many professionals whose wage level is above the $25,000 mark. I simply could not see myself taking on that workload and making those kinds of judgments in anything like a thorough manner. So what we have done with this, amendment — I shall read the amendment, and I think it explains itself. We have discussed it with the distinguished Senator from Wisconsin and the distinguished Senator from South Carolina. This is how it would read:
"8. An employee on the staff of a committee who is compensated at a rate in excess of $25,000 per annum and employed for more than ninety days in a calendar year (unless hired on a per diem basis) shall divest himself of any substantial holdings which may be directly affected by the actions of the committee for which he works, unless the Select Committee, after consultation with the employee's supervisor, grants permission in writing to retain such holdings or the employee makes other arrangements acceptable to the Select Committee and the employee's supervisor to avoid participation in committee actions where there is a conflict of interest, or the appearance thereof."
That puts the principal responsibility for oversight with respect to staff and employees on the Ethics Committee. It does provide for consultation with the chairman of the committee in the event a problem arises, and then provides greater flexibility with respect to the action to be taken to insulate the employee from any potential conflict. I think this is a reasonable resolution.
I do not think it needs further explanation, but I yield to my good friend from Wisconsin.
Mr. NELSON. I yield myself 3 minutes.The amendment is clearly explained, but for purposes of the record for legislative intent, I would like a little bit more elaboration. The Senator mentioned that divestiture may be too harsh and not flexible enough, considering other alternatives, that the executive branch does have other alternatives, and that there are people with substantial holdings who could never serve in the Government, no matter how valuable they could be, if divestiture were the only answer.
It is correct, is it not, that the staff employees in that salary class must disclose their holdings, just as Members of the Senate do, so that the chairmen of committees, the Ethics Committee, and the public are aware of their holdings?
Mr.. MUSKIE. The Senator is correct.
Mr. NELSON. It is also correct that there is much room for flexibility, as suggested by the Senator from Maine, on any one of these large committees which deals with a large spectrum of activities. It may very well be that a staff member who had a substantial holding that might be affected by one piece of legislation would not be affected by 95 percent of the rest of the work of the committee, and it gives the opportunity for the Ethics Committee and the chairman to look it over and decide whether or not that member may participate in the work on that particular legislation.
Is that not correct?
Mr. MUSKIE. The Senator is correct. I think that is a very important point to make.
Mr. BAKER. Will the Senator yield to me for a question?
Mr. MUSKIE. Yes, I yield to my good friend from Tennessee.
Mr. BAKER. I notice in the language that was brought to my attention in the amendment as originally proposed, I believe, in the third line, it says, "unless hired on a per diem basis." Is that language included in the amendment today?
Mr. MUSKIE. Yes, that language is still in the amendment. I just did not read it.
Mr. BAKER. I wonder what the situation would be if, as sometimes is the case, we have a consultant who is hired on a per diem basis who may be paid $25,000 in the course of a year and may be there more than 90 days.
Mr. MUSKIE. That language I left in because it was in the committee language. I had not focused on the implications. The Senator has raised a question I had really not considered.
I wonder if the manager of the bill would explain that. I did not submit that language.
Mr. NELSON. What was the question, may I ask, that one might go beyond the 90 days?
Mr. BAKER. Does this exempt from the provisions of section 8 an employee who may be hired as a consultant on a part time basis but may work more than 90 days and make more than $25,000? Does this language mean that in such a case, he would not have to go this route? If it does, we have set up two standards of conduct.
Mr. MUSKIE. I have the same reaction, I say to the Senator. I am interested in the answer. too.
Mr. NELSON. As I recall it, the Senator from Idaho (Mr. McCLURE) raised this precise question as to another section in the bill. The intent is not to exempt somebody who might work on a per diem basis endlessly. We attempted to work out, and may well have, an amendment to clarify that question, which is the same as the issue raised by the Senator from Idaho.
Mr. BAKER. If the Senator will yield just briefly, my concern — and I am not familiar with the amendments of the Senator from Idaho — would just be that we are creating two different classes of employees that are subject to different levels of procedure. That concern could be met if that language in the parentheses in the third line of the section 8 were changed to read:
(unless hired on a per diem basis and unless such employee earns less than $25,000 per annum, or for less than 90 days.)
Mr. NELSON. I do not think that gets at the problem, because you may be hiring somebody for a period, on a per diem basis, at a higher rate for 90 days or less.
Mr. BAKER. What is the per diem rate now? Per day, $100 or $135? Is that the maximum?
Mr: NELSON. I do not know what the maximum is
Mr. BAKER. I think that figure is correct, a GS–18 equivalent, which I believe would be $135 a day; but there is no limitation on the number of days that employee can be hired.
The PRESIDING OFFICER. The time of the Senator from Wisconsin has expired.
Mr. BAKER: Mr. President; I shall address the question later.
The PRESIDING OFFICER. The Senator from Maine has 1 minute remaining.
Mr. MUSKIE. We ought to be able to solve a lot of problems in 1 minute.
Mr. THURMOND. Will the Senator yield to me?
Mr. MUSKIE. Yes, I yield a minute.
Mr. THURMOND. Mr. President, I think this amendment offered by the distinguished Senator from Maine is practical. I think it improves the wording in the code. As far as I am concerned; I am willing to accept it.
Mr. NELSON. Perhaps this will clarify the question raised by the Senator from Tennessee.
Mr. BAKER. Mr. President, I yield 2 minutes of the bill for this purpose.
Mr. NELSON. On page 39, line 3, that section overlies this issue:
"4. No Member, officer. or employee of the Senate shall utilize the full time services of an individual for more than ninety days in a calendar year in the conduct of official duties of any committee or office of the Senate (including a Member's office) unless such individual
"(c) agrees in writing to comply with the Senate Code of Official Conduct in the same manner and to the same extent as an employee of the Senate.
Mr. BAKER. The problem is, as I understand the reading of that section, that it does not provide for a consultant who is not a full time employee, who then may be on the payroll constantly, more or less, as a part time employee, and in the course of a year earn more than $25,000.
Mr. NELSON. That is true. But we did not see that as the kind of abuse we are—
Mr. BAKER. I think we have a problem, Mr. President. I will try to draft an amendment to reach the problem, rather than trying to deal with it at this point. So I will not proceed any further on this matter at this time.
Mr. MUSKIE. May I have 1 more minute?
Mr. NELSON. I yield to the Senator from Maine.
Mr. MUSKIE. Mr. President, the only thing I would like to suggest to the distinguished floor manager is that the phrase "of any substantial holdings" may well be standards or regulations for the Ethics Committee. It seems to me, there ought to be some objective standard that would be difficult to write into the law. I wonder if we might have some indication here of the desirability of that.
Mr. NELSON. I think the Senator is correct.
Mr. RIBICOFF. If I may respond, I think the Senator from Maine has addressed a basic weakness that will be corrected. I think it would be tragic if the Senate lost the services of so many valuable people who got in as a result of this system.
It would seem to me, first, there would not be many cases coming before the Ethics Committee, and when a case presents itself to a chairman, he could take it up with the Ethics Committee. I do believe the Ethics Committee would have no difficulty ruling on the cases as they came up. I am sure each member of the Ethics Committee — I certainly would be more than willing and I think I can speak for the other five members — would take these problems up with respective chairmen when they were presented.
I think the Senator has addressed himself to a basic weakness we could rectify between the various chairmen, as a whole.
Mr. MUSKIE. I thank my good friend and the distinguished floor manager.
Mr. NELSON. I thank the Senator.
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Maine.
The amendment was agreed to.