Members Press OPM on Detailee Reduction
Caught off guard by a proposed rule that would curtail the duration and likely the number of executive branch detailees to Congress, Members on both sides of the Capitol are drafting letters to the Office of Personnel Management protesting the change.
In three separate letters to OPM Director Kay Coles James, more than two dozen mostly Republican lawmakers have expressed strong reservations about the ramifications of the proposed rule, which would subject the detailing of military and executive agency staff to the direct approval of the OPM director and would cut the duration to six months.
As of Friday, Sen. Chuck Grassley (R-Iowa) had received 18 signatures on a letter he is circulating to inform James that Senators are “deeply concerned” and to request an extension of the comment period for an additional 120 days. The rule was printed Sept. 9 in the Federal Register, with a 60-day comment period set to end Oct. 24.
“The Congress needs to carefully and fully consider this proposed rule and its impact upon both the executive and legislative branches,” Grassley’s letter reads. “There is no reason to rush into this proposed rule. Detailees have been a benefit to both the executive and legislative branches for many years.”
A letter by Senate Governmental Affairs Chairwoman Susan Collins (R-Maine), with the signatures of 10 colleagues, goes even further, requesting that OPM withdraw the “fundamentally unsound” proposal.
Additionally, House Administration Chairman Bob Ney (R-Ohio), who plans to send a “fairly extensive” letter early next week, went so far as to question whether the OPM director had the legal standing to write such a regulation.
“There’s no language that we can find that could be construed to authorize” OPM to manage the detailees sent from individual agencies, Ney said.
“In 1946 Congress specifically vested House Administration and Senate Rules and Administration with the authority to approve executive branch detailees,” Ney said, questioning why the administration would want to undo a half century of cooperation between the branches on the practice.
Ney said he has already approved 22 detailees this year, and he estimated that as many as a hundred or more could end up being affected on the House side. The Senate Rules and Administration Committee estimated that 60 to 70 detailees are currently staffed in the Senate, totaling 150 to 200 per Congress.
“In the proposed regulations, there was a quote saying the rules’ intent is getting a handle on how many people are up here. If that’s the case, if that’s what she really wants to do, they don’t need this rule,” Ney said. Instead, he proposed that the heads of the agencies could report to OPM on the number of detailees they have sent to the Hill every six months.
“It’s that simple,” Ney said, But “I don’t think that’s what this is about.”
The Grassley letter also asks OPM to explain its “rationale,” and Collins’ letter, too, wonders why the rule was proposed, given that the administration stated no problems with the program as it currently functions.
Suspicions of the administration’s motives intensified when word circulated that the impetus for the initiative came from the White House counsel’s office.
Mark A. Robbins, general counsel for OPM, tried Friday to dispel the notion that the rule itself came directly from 1600 Pennsylvania Ave. “This is not a White House initiative as some press accounts have claimed,” Robbins said in a statement.
“I received a call from the White House counsel’s office who requested information regarding detailees to the legislative branch from the executive branch,” he said. “I wasn’t able to answer their question because I discovered that data is not centrally collected. I sat down with our program people and devised the regulatory scheme that would collect that data.”
But the prevailing assumption among most Members is that the rule was designed to hinder Congress’ ability to oversee executive branch agencies — a process for which detailees provide a significant amount of expertise.
“The president and vice president have a well-earned reputation for being hostile to the Congress. This step will reinforce that reputation on Capitol Hill,” said Brookings Institution Senior Fellow Thomas Mann.
“If all the administration cares about is getting an accurate head count, they can and should do so directly, without endangering a host of very useful and constructive interactions between the two branches,” he added.
Mann also indicated that he has not received a clear picture as to whether fellowships — facilitated by nongovernmental organizations such as Brookings — would be affected by the rule along with detailees executive branch agencies send directly to Congress.
“Signals from OPM are mixed. Officials claim fellowships are not affected by the ruling, yet the plain language suggests that they are,” Mann said.
The letter Grassley is circulating is his second to James. She has since responded to his first letter, writing Grassley that she would “be happy” to brief his staff and assuring him that the “regulations are not intended to cut executive branch detailees.”
“There are no limits to the number of detailees who may serve. There is no prohibition on Members of Congress or committee staff replacing existing detailees when their service term expires,” James wrote Oct. 15. “Instead, these regulations are intended as a management tool.”
But Grassley, Collins and Ney insist that largely misses the point. They assert that centralizing the agencies’ detailee programs in one office will almost by design limit the number of executive branch employees sent to the Hill because of bureaucratic inertia.
“While we can understand that the administration might want to track more closely the number of executive branch details to Congressional offices, we can see only one reason for placing the successful program in the chokehold of these regulations, and that is to eliminate the program itself,” Collins’ letter states, echoing a similar assertion Grassley made in his first letter.
Both letters also question the need for the litmus tests to which the proposed rule would subject detailees’ approval: whether assigning the employee to Congress would involve a conflict of interest between the two branches and whether the detail could impair national security.
As to the former restriction, Collins’ letter describes it as “a vague and subjective condition that could be misused, now or in the future, to bar detailees from working on any oversight or legislative assignments that have the potential for questioning or disagreeing with policies or practices within the executive branch” and the latter demonstrates “a startling lack of trust” of individual agencies currently managing their own detail programs.
The rule would apply retroactively to all detailees on Capitol Hill and would end all of their assignments by Jan. 2, 2004, regardless of previous arrangements, a decision Collins’ letter deemed “arbitrary” and “extraordinarily disruptive” to both Congress and the agencies.
The existing program, Collins wrote, is “mutually beneficial” to both branches, as it is “important to the professional development of executive branch employees; it is also vital for Congressional staff to have the chance to work side-by-side with employees of the agencies we oversee.”
For her part, James insisted that OPM would consider Congress’ comments when writing the final rule, and as an example of an element that could be redrafted pointed to the proposed term limit of six months, with the possibility of one six-month extension. (The current practice is a one-year term with the possibility for a one-year extension.) James acknowledged that the concept has drawn comments from committees because it “ignores the natural life of a Congress — two years.”