Mr. Chairman, Representative Watt and Members of the Subcommittee, I am pleased to be here today to testify before you with respect to H.R. 6101, legislation that would require nine of the eleven members of the Board of Directors of the Legal Services Corporation to agree in writing in order to discharge the Corporation's Inspector General. Accompanying me today are Professor Lillian Bevier, the Board's Vice Chairman and a distinguished Professor of Law at the University of Virginia, and Michael D. McKay, the Chairman of the Board's Finance Committee. Mr. McKay is a partner in the law firm of McKay Chadwell in Seattle and a former U.S. Attorney for the Western District of Washington. Thank you for accommodating our schedule so that we can be here today.
For my part, I have been in the private practice of law in Atlanta, Georgia for forty years in law firms ranging in size from four to twelve hundred lawyers. I am a past President of the Atlanta Bar Association and was outside General Counsel to the Georgia Republican Party for many years and continue to represent Republican Party interests in the state, most recently filing an amicus brief on behalf of the Georgia legislative leadership supporting the State of Texas on its 2003 redistricting plan. While one piece of their plan was overturned and remanded, I would note that on the issues of concern to the Georgia legislature, we prevailed. I also served eleven years as a member of the Board of Directors of Georgia Legal Services and the Atlanta Legal Aid Society.
The federal legal services program is often mischaracterized by some conservatives as being a liberal tool. I could not disagree more. This is a fundamentally conservative program. It is about giving poor people a shot at equal access to justice in our judicial system on civil matters. The leading early proponent of creating the Legal Services Corporation was Justice Lewis Powell. One of the original sponsors of creating LSC was Congressman John Erlenborn, who served as the most recent previous President of LSC. Supporters of LSC over the years have included conservative Republicans such as Warren Rudman, John Danforth and Pete Domenici, and Members of the House such as Bill Livingston and Frank Wolf. I will stop there for fear of leaving people out.
Mr. Chairman, with due respect and understanding that we are discussing a bill you introduced, the LSC Board cannot support either H.R. 6101 or its predecessor bill, H.R. 5974. The Congress created 57 Inspectors General by statute. All of the IG's, with the exception only of the IG of the Postal Service, serve at the pleasure of either the President or the head of the agency, depending on who appointed him or her initially. When the head of the agency is a multi-person body, as is the LSC Board of Directors, the decision to appoint or discharge the IG is made pursuant to the rules of the entity. In every other instance where the head of the agency is a multi-person body, it is my understanding that only a majority vote is required.
The LSC Board of Directors operates on a majority vote basis on all matters pending before it (except that it takes seven votes to remove a Director for malfeasance). While our Board at full strength has eleven directors, during my three and one-half years as Chairman, there have at most times been one or two vacancies The Board presently has only ten members. Thus, the effect of H.R. 6101 would be to require actual or virtual unanimity with respect to the removal of the LSC IG no matter what the cause. This is highly unusual to say the least. It takes only one-half of the House and two-thirds of the Senate to remove the President of the United States.
We think it noteworthy that only the LSC IG would be affected by H.R. 6101. We have been unable to discern a rationale - and none has been offered - for singling out the LSC IG for such extraordinary treatment. My colleagues on the Board and I, all of whom were nominated by President Bush and unanimously confirmed by the Senate, have worked diligently in complete good faith on all matters coming before us, including our relationship with the IG. Indeed, Professor Bevier and I have made several trips to Washington to personally meet with LSC management and the IG to work on communication issues and the relationship between the two. We expect and pledge to continue to work on this. As we are the Board that appointed the incumbent IG, we have every interest in his successful tenure. But precisely because we are the Board that appointed this IG, we think it would be quite unwise to legislate the unusual and extraordinary job protection that H.R. 6101 provides.
While the Board is of course not permitted to interfere in investigations undertaken by the IG – and I should emphasize that we would in no case do so – the IG is under our general supervision, as we constitute the head of the agency. The power to supervise presumes the power to remove. While I have spent my career in the private sector and never dealt with an IG before I took this position, I believe this must be why Congress did not provide the kind of job protection for any IG that H.R. 6101 would create for LSC's.
I would like to briefly touch on two other points. First, the LSC IG has in the last year been asserting that the Board should not engage in a review of his performance. The power to remove the IG-whether or not with a super-majority such as H.R. 6101 would require--presumes the authority to review his performance. Absent a performance review, on what basis would we decide whether to retain or discharge him? Moreover, the Office of Management and Budget, on November 13, 1992, issued a memorandum to the heads of designated federal entities regarding their relationship with their IGs. The memorandum provides specifically that the "general supervision" provision on the Inspector General Act includes "conducting the annual performance evaluation of the IG." After our IG made the argument that we should not conduct a performance review of him, we sought outside legal counsel from Thomas S. Williamson Jr., a partner at Covington & Burling and a former Deputy IG of the Department of Energy. His legal memorandum to us states in no uncertain terms that we not only have the authority to review the IG's performance, but also the obligation to do so. We would continue to be under such an obligation even if H.R. 6101 were to pass.
Second, there have been some suggestions that the Board should not review the IG's performance because he has been, at the request of some Members of Congress, investigating certain allegations, some of which pertain to the Board. The Board discussed undertaking a performance review of the IG's performance in 2005, months before the March 2006 investigation commenced; that discussion predated the investigation and is in no way related to it. According to the report issued by the IG yesterday, the IG found that the Board had done nothing improper, much less illegal. That investigation has no bearing on the Board's responsibility to conduct a performance review.
I would be happy to answer any questions.