Follow the Rules Act

Mr. President, I wish to submit to the Senate the budget scorekeeping report for June 2017. The report compares current-law levels of spending and revenues with the amounts the Senate agreed to in the budget resolution for fiscal year 2017, S. Con. Res. 3. This information is necessary for the Senate Budget Committee to determine whether budget points of order lie against pending legislation. The Republican staff of the Senate Budget Committee and the Congressional Budget Office, CBO, prepared this report pursuant to section 308(b) of the Congressional Budget Act, CBA.

My last filing can be found in the Record on April 27, 2017. The information contained in this report captures

legislative activity since that filing through June 5, 2017.

Republican Budget Committee staff prepared Tables 1-3 of this report.

Table 1 gives the amount by which each Senate authorizing committee exceeds or is below its allocation for budget authority and outlays under the most recently adopted budget resolution. This information is used for enforcing committee allocations pursuant to section 302 of the CBA. For this reporting period, 13 of the 16 authorizing committees are in compliance with their allocations. Legislative activity involving the appropriations process, continuing resolution and omnibus, during the last reporting period includes provisions, such as changes to health benefits for miners and Medicaid funding, charged to the Committee on Finance that caused it to breach its allocation. The other two committees in breach, as previously reported, are the Committee on Veterans Affairs and the Committee on Commerce, Science, and Transportation. In total, authorizing committees are estimated to increase outlays by $292 million more than they were allocated over the fiscal year 2017-2026 period. Of that $292 million in violations, $91 million stems from the Finance Committee's violations during this reporting period.

Table 2 gives the amount by which the Senate Committee on Appropriations exceeds or is below the statutory spending limits for fiscal year 2017. This information is used to determine points of order related to the spending caps found in sections 312 and 314 of the CBA. H.R. 244, the Consolidated Appropriations Act, 2017, P.L. 115-31, provided full-year appropriations for the current fiscal year. These appropriations, $551.1 billion for defense and $518.5 billion for nondefense, were consistent with the statutory limits imposed by the Budget Control Act of 2011.

Table 3 tracks compliance with the fiscal year 2017 limit for overall changes in mandatory programs, CHIMPS, in appropriations bills, established in the fiscal year 2016 budget resolution. CHIMPS in the Consolidated Appropriations Act were consistent with this year's limit of $19.1 billion. This information is used for determining points of order under section 3103 of that resolution.

In addition to the tables provided by Budget Committee Republican staff, I am submitting CBO tables, which I will use to enforce budget totals approved by the Congress.

CBO provided a spending and revenue report for fiscal year 2017, which helps enforce aggregate spending levels in budget resolutions under CBA section 311. CBO's estimates show that current-law levels of spending for fiscal year 2017 are below the amounts assumed in the budget resolution by $303 million in budget authority and $6.4 billion in outlays. CBO also estimates that revenues are $1 million above assumed levels for fiscal year 2017, but $21 million below assumed levels for the fiscal year 2017-2026 period. Social Security levels are consistent with the budget resolution's fiscal year 2017 figures.

CBO's report also provides information needed to enforce the Senate pay-as-you-go, PAYGO, rule. The Senate's PAYGO scorecard currently shows increased deficits of $226 million over the fiscal year 2016-2021 and $227 million over fiscal year 2016-2026 periods. For both periods, outlays have increased by $201 million, while revenues decreased by $25 million over the 6-year period and $26 million over the 11-year period. Missing from these levels are the budgetary effects of divisions M-O of the Consolidated Appropriations Act, 2017 and the miners' health provisions of H.J. Res. 99, the short-term continuing resolution, P.L. 115-30, which are required to be excluded based on language in the acts. The consolidated appropriations bill, however, is recorded as reducing revenues by $24 million and $25 million over the fiscal year 2016-2021 and fiscal year 2016-2026 periods, respectively. That revenue loss is found in the appropriations section of the bill, not covered by the exclusion, which includes provisions related to visa-program extensions and insurance coverage of mammography. The Senate's PAYGO rule is enforced by section 201 of S. Con. Res. 21, the fiscal year 2008 budget resolution.

Finally, included in this submission is a table tracking the Senate's budget enforcement activity on the floor. No budget points of order have been raised since my last filing.

All years in the accompanying tables are fiscal years.

I ask unanimous consent that the accompanying tables be printed in the Record.

Mr. Speaker, I yield myself such time as I may consume.

When we are going to pass a bill on a bipartisan basis, it might be useful to acknowledge the bill has a Democratic cosponsor. I am proud to be the lead cosponsor with Congressman Duffy on the Follow the Rules Act--in fact, he asked me to play that role--and I rise

clearly in strong support of the legislation which will protect, critically, whistleblowers who disclose waste, fraud, and abuse.

I want to thank my colleague, Representative Duffy, for working with me in a bipartisan way on this important bill. We initially introduced the bill together in the 114th Congress, and it passed the House without opposition. Unfortunately, the Senate did not act. Hopefully, this Congress we will be able to persuade the Senate to enact this important protection.

This bill would clarify that, under the Whistleblower Protection Act, an employee who refuses to obey an order that would require the employee to violate a law, rule, or regulation is protected.

Congressman Duffy and I introduced the bill to address a misinterpretation of the Whistleblower Protection Act by the U.S. Court of Appeals for the Federal Circuit in the case of Rainey v. MSPB in 2016, as my colleague from Kentucky suggested. In that case, a contracting officer, Dr. Timothy Rainey, was ordered by his supervisor to tell a contractor to rehire a terminated subcontractor. Dr. Rainey, in principle, refused because carrying out that order would have required him to violate the Federal Acquisition Regulation by improperly interfering with the contractor's personnel decisions and requiring the contractor to act contrary to the terms of the contract.

What reward did Dr. Rainey get for doing the right thing? He was stripped of his duties and given a negative performance rating.

The Federal circuit, God knoweth how, held that an employee who refuses to obey an order is protected only if the order would violate a law, a statute, but not if the order would violate a rule or a regulation. Talk about looking at angels on the head of a pin. The court's ruling was contrary, clearly, to the Whistleblower Protection Act and the intent of this Congress.

In enacting the Whistleblower Protection Act, Congress clearly intended that protections granted to government employees who blow the whistle on waste, fraud, and abuse be construed broadly. We clearly had in mind not only laws, but rules and regulations as well.

Congress and the American people rely on whistleblowers to make government efficient, honest, and effective, and we in Congress want to support those people. As a member of the Committee on Oversight and Government Reform, I rely on whistleblowers to help us with our oversight and reform work. Without them, rooting out mismanagement, abuse, and corruption would be very difficult.

The underlying principle of the Whistleblower Protection Act is that employees should be protected from retaliation if they do the right thing, even if it means disobeying orders from their superiors. Given the Trump administration's attacks on the Federal workforce, it is especially important now, more than ever, for this Congress to uphold whistleblower protections for all of our public servants.

We cannot tolerate the issuance of gag orders to silence dissent, and we cannot permit the firing of agency employees who have differing political views from our own or who might object to administration actions. If the administration and my colleagues are serious about draining the swamp, we need to do all we can to ensure that Federal employees are allowed to perform their jobs free from political pressure to violate laws, rules, and regulations.

Protecting whistleblowers has been and should continue to be a bipartisan--indeed, nonpartisan--issue and something on which we can find common ground. I urge my colleagues to support the passage of this important bipartisan legislation. I am proud to cosponsor it with my friend, the gentleman from Wisconsin (Mr. Duffy).

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I agree with my friend from Wisconsin. I think he laid out the case very well.

I think the ruling of the circuit court in many ways tells us about the perils of a very juridical view of what a statute is all about. To refuse to take into account context, history, legislative history, and congressional intent that is reflected often in the kind of debate we are having here on the floor I think is not in the spirit of trying to interpret the laws as Congress intends them. Sooner or later I think Congress is going to have to address this kind of fundamentalist, originalist approach to laws that I think is nonsensical and leads to this kind of cherry-picking about what it was Congress intended to protect.

I agree with my friend from Wisconsin. I think this bill is necessary because we have to clarify the law, apparently, for the courts and protect people like Dr. Rainey.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 657) to amend title 5, United States Code, to extend certain protections against prohibited personnel practices, and for other purposes, as amended.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and include extraneous material on the bill under consideration.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise today in support of H.R. 657, the Follow the Rules Act, introduced by Congressman Sean Duffy of Wisconsin.

Less than 1 month ago marked the 28th anniversary of the Whistleblower Protection Act of 1989. That bill was a landmark accomplishment establishing enforcement mechanisms to protect those who help identify waste, fraud, and abuse in the Federal Government. It also protects those who, in good conscience, refuse orders that could violate the law.

Last year, the U.S. Court of Appeals for the Federal Circuit considered the case of Dr. Timothy Rainey. Dr. Rainey, an employee of the State Department, refused an order to violate the Federal Acquisition Regulation.

Dr. Rainey's supervisors subsequently took away his responsibilities as a contracting officer representative. He argued it was because of his refusal to obey the order. Thus, the Federal Circuit considered whether Federal managers can retaliate against employees who refuse to obey an order that would violate a government rule or regulation rather than a statute.

Unfortunately, the Federal Circuit has a record of misinterpreting the law on whistleblowers. That is precisely what happened here. The court held such employees were not protected. Ironically, the court relied on a significant 2015 Supreme Court decision, DHS v. MacLean, which reaffirmed the protections of the Whistleblower Protection Act.

The Federal Circuit's decision puts Federal employees in an impossible situation. It forces them to choose between following their superior's orders or following the agency's rules or regulations. In many ways, an agency's rules and regulations are the standing orders of the head of the agency.

My colleague, Representative Duffy, introduced the Follow the Rules Act to fix this problem. H.R. 657 makes clear that employees are protected from retaliation for disobeying orders that would violate an agency rule or regulation. Refusing to obey such orders is exactly the type of action for which Federal employees should be protected from retaliation.

This legislation has bipartisan, bicameral support. It passed the House by voice vote near the end of the last Congress.

I hope that this legislation will be signed into law this Congress and Federal employees will be protected in trying to do the right thing. I thank Representative Duffy for his leadership on this issue.

I urge my colleagues to support this bill, and I reserve the balance of my time.

Mr. Speaker, I yield 5 minutes to the gentleman from Wisconsin (Mr. Grothman).

Mr. Speaker, I urge adoption of the bill, and I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, those of us in this institution talk about we are a country of laws. However, over time, more and more of the statements that we have to live by are not laws. They are rules and regulations. Therefore, when the Whistleblower Protection Act was passed in 1989, I am not sure at the time whether it was intended to cover rules and regulations, but, as a practical matter, I think Federal employees will run into problems in which they are asked to disobey rules and regulations even more than statutory laws themselves.

On June 7 of last year, the U.S. Court of Appeals for the Federal Circuit ruled in Rainey v. Merit Systems Protection Board that, while laws were covered by the Whistleblower Protection Act, rules and regulations were not, at least if you weren't a Federal employee.

Why is it relevant that we have to make up for the problems caused by this decision? Dr. Timothy Rainey was a State Department employee who, while serving as a contracting officer in 2013, was ordered by his superior to violate the Federal Acquisition Regulation. Dr. Rainey refused and was subsequently removed from his duties.

When Dr. Rainey invoked the right-to-disobey provision of the Whistleblower Protection Act, the Merit Systems Protection Board ruled the law only protected him from violating Federal laws, but such protections don't apply to rules or regulations. Dr. Rainey appealed the case, and the U.S. Court of Appeals upheld the Protection Board ruling and, in doing so, exposed a glaring inconsistency in the application of the act.

What does this mean? Federal whistleblowers play an important role in exposing mismanagement, the rampant mismanagement at Federal agencies, and supporting the oversight work of Congress. Critical to them is the Whistleblower Protection Act which provides Federal workers with certain legal safeguards to disclose information that an employee reasonably believes evidences gross mismanagement, waste of funds, abuse of authority, or a violation of the law.

This ruling will take away the protections when they stand up to bad actors in the Federal workforce. In effect, this ruling will give permission to supervisors in positions of authority to force Federal workers to violate the rules and regulations that Congress, through law, directs the agencies implement.

Regardless of your opinion about certain rules, we should not leave, exposed, Federal workers who are just trying to follow the rules instead of obeying supervisors who want them to disobey the rules and regulations. The bipartisan Follow the Rules Act, which I am an original cosponsor of, will close this loophole created by the court's ruling and ensure that Federal employees have protections for refusing to violate the rules and regulations in addition to the law.

I ask support for this bill.

Mr. Speaker, on Monday, May 1, I was delayed in my travels back to Washington due to a delayed flight.

If I had been present, I would have voted: ``Yea,'' on rollcall 237, passage of H.R. 910--Fair Access to Investment Research Act of

2017; ``Yea,'' on rollcall 238, passage of H.R. 1312--Small Business Capital Formation Enhancement Act; and ``Yea,'' on rollcall 239, passage of H.R. 657--Follow the Rules Act.