At HSGAC Hearing, Portman Secures Commitment from OMB Nominee Neera Tanden to Prioritize Cybersecurity & Federal Permitting Processes and Protect the Buy American Act

Portman Also Questioned Tanden on Her Previous Partisan Public Statements

February 9, 2021 | Press Releases

WASHINGTON, DC – During today’s Homeland Security and Governmental Affairs Committee hearing on the nomination of Neera Tanden to be Director of the Office of Management and Budget (OMB), U.S. Senator Rob Portman (R-OH) secured a commitment from Ms. Tanden that she would support Portman’s bipartisan Buy American Act, prioritize cybersecurity in the wake of the SolarWinds cyberattack, and also support the Federal Permitting Improvement Steering Council created through Portman’s FAST-41 legislation. Portman highlighted the importance of making his FAST-41 legislation permanent. In 2015, Portman sponsored the Federal Permitting Improvement Act, which Congress ultimately enacted into law as Title 41 of the Fixing America’s Surface Transportation (FAST) Act. That bill, now known as FAST-41, significantly reformed the federal infrastructure permitting process while leaving environmental protections in place, and created the Permitting Council. Currently, FAST-41 will expire in 2022Senator Portman, however, has introduced legislation, the Federal Permitting Reform and Jobs Act, to lift the sunset on FAST-41, which will ensure that the Permitting Council can continue its work to make the infrastructure permitting process more efficient and reduce unnecessary delays. A more efficient permitting process supports the creation of new jobs, which will help the nation recover from the COVID-19 crisis.

In addition, Senator Portman also questioned Ms. Tanden about the partisan public statements she has made in the past. As a former OMB Director under President George W. Bush, Senator Portman understands the importance of being able to work productively both within the administration and across the federal agencies, but also with members of Congress, on a bipartisan basis.

In addition, Portman Excerpts of the hearing can be found below and videos can be found here and here.

Portman: “Thank you, Mr. Chairman, I appreciate it, and Ms. Tanden, again, thank you for taking time to speak with me last week. And we had the opportunity to go over a number of different issues, including a bunch of policy issues. Let me focus today at the outset on the issue that many of my Republican colleagues have raised with me. As we’ve discussed, the OMB Director has to be able to work with members of Congress on both sides of the aisle. This is true with Cabinet officials generally, but specifically with OMB because you have so many interactions with them, both on the budget on the oversight responsibilities. Typically the OMB director is not a partisan, in particular, because you have to have these kinds of relationships. I believe that the tone, the content, and the aggressive partisanship of some of your public statements have added to the troubling trend of more incivility and division in our public life. And in your case I’m concerned that your personal attacks about specific senators will make it more difficult for you to work with them. Just to mention a few of the thousands of negative public statements, you wrote that Susan Collins is ‘the worst,’ that Tom Cotton is a fraud, that vampires have more heart than Ted Cruz. You called Leader McConnell ‘Moscow Mitch’ and Voldemort. And on and on. I wonder specifically how do you plan to mend fences and build relationships with members of Congress you have attacked through your public statements?”

Neera Tanden, Nominee to be Director of Office of Management and Budget: “Senator, I very much appreciate that question. I recognize the concern. I deeply regret and apologize for my language and some of my past language. I recognize that this role is a bipartisan role and I know I have to earn the trust of senators across the board. I will work very aggressively to meet that concern. I know the last four years or last few years have been pretty polarizing and I hope that we can work to address the country’s challenges in a bipartisan and non-partisan manner. I appreciate that it’s upon me to prove that to this committee and to members and I will work as hard to address the concerns of Republican senators as Democratic senators and will be accountable. I want the OMB to be accountable to Congress and work effectively with you.”

Portman: “There are media reports that during November 2020 after the election, so late last year, more than a thousand tweets were deleted from your account. Some of these public statements have been tweets. Are these media reports that you deleted, more than a thousand tweets in November in advance of your nomination, accurate, and if so, why did you delete them?”

Ms. Tanden: “Senator, I appreciate people’s concerns about my tweets and I’ve regretted them and I deleted tweets because I regretted my tone and I’ve deleted tweets over many months. But for those concerned about my rhetoric and my language, you know, I am sorry and I’m sorry for any hurt that they’ve caused.”

Portman: “So you did delete the tweets. Did you delete them because you believe you might be nominated for this job or another job?”

Ms. Tanden: “I deleted tweets over many months because I regretted the tone of my tweets.”

Portman: “Okay, but specifically after the election you deleted a thousand tweets according to media reports. I take it from what you’re saying today that is accurate? Is that true?”

Ms. Tanden: “I don’t actually know but I completely conceded the point.”

Portman: “Okay and I guess the question is you know, is that the right thing to do, to go back and try to cover what you had said given that you might be in a different position, which would be a nomination for a Cabinet-level job. With the removal of more than a thousand tweets, there are still a lot of harsh, partisan tweets on your account. I found, through my staff, there are still nine pages of tweets about Senator Ted Cruz, for example. How did you choose which tweets you wanted to delete and which ones you wanted to keep on your account?”

Ms. Tanden: “Senator, I mean I just thought about some of my language and deleted my tweets but I would also just say again that to the extent people are hurt by my language I deeply apologize.”

Portman: “Okay well let’s move on and talk about regulatory reform for a moment. We got to talk about this quite a bit on our call and, as you know, the Regulatory Accountability Act has been bipartisan legislation in the past that we have tried to promote as a way to create more jobs and to provide some relief, particularly for smaller businesses. When you were President for the Center of American Progress, you called the Regulatory Accountability Act ‘a license to kill’ among other harsh characterizations. Again in a number of public statements. Can you talk about that? Why did you think that this legislation, which again, when you made that statement at the time we had Democrats and Republicans on board. Do you still hold those views and why did you say that?”

Ms. Tanden: “Senator, I believe a senior fellow at CAP used that language. I personally did not use language. I am the CEO of the Center for American Progress so I am responsible for what it puts forth, but I did not call it, I did not use the language, so I would say on the issue of regulatory reform, we want to get the balance right. Regulations do need to address the public welfare but they also should continue to use cost-benefit analysis, and I look forward to working with you on regulatory reform and other issues and concerns around regulations that you may have.”

Portman: “And cost-benefit analysis, as you know, is a core of RAA. It also deals with independent agencies. Do you think that independent agencies should be more accountable to OMB and to OIRA?”

Ms. Tanden: “Well I think the relationship between the Office of Management and Budget and the Executive Office of the President and independent agencies is a different one from other agencies, so I appreciate the concerns raised about the regulatory process with independent agencies, but I do want to recognize that independent agencies are independent for reasons and we have to try to get that balance right between the independent nature of those agencies and the rules and regulations that they are putting forward.”

Portman: “Increasingly, regulations are coming from these independent agencies that affect jobs and the economy and the question is, do you think independent agencies should be subject to a cost-benefit analysis?”

Ms. Tanden: “Well, I think cost-benefit analysis is critical for the rulemaking process and EO-128066 is still a very important rule, or an executive order and so the question really is should – you know one question not the only question - but a question is whether OMB should be implementing cost-benefit analysis with the independent agencies. But that doesn’t take away the importance of cost-benefit analysis for rule-making.”

Portman: “I’m over my time, I’ll be back for a second round, thank you Mr. Chairman.”

Portman: “Thank you, Mr. Chairman, and to Ms. Tanden, I can guarantee there will be some challenges getting information -- there always is -- and this committee in particular, with our oversight responsibilities, needs that kind of transparency to do our work well. As I said earlier, most of what we do in that area is not just bipartisan, it’s kind of nonpartisan and so we need that, and we haven’t always gotten it. On the regulatory issues we talked a lot about earlier the need for cost-benefit analysis and you and I disagreed on independent agencies I think in terms of where they should fit in but I hope you’ll take another look at that.

“On permitting reform, you and I talked about this quite a bit in our conversation, this is an area where we have been able to find that sweet spot between Republicans and Democrats. In 2015, legislation was passed bipartisan - Senator McCaskill and myself – that creates this Federal Permitting Improvement Steering Council called FAST-41, because it’s part of the transportation bill, Section 41. And it’s been amazing. It’s helped a lot of good projects get across the finish line. And it’s saved a lot of money, it’s created a lot of jobs, it’s saved over $1 billion in costs, we know. And I think that’s a very low, conservative estimate. I’ll give you an example – there have been four recent projects that have saved substantial funding. They support 20,000 jobs, by the way. They have saved more than 10 years in permitting delays, just these four projects in the last year. So this is one that works. I’ve spent some time with the permitting council itself, and OMB plays a coordinating role here, so I appreciate your commitment on the call to work with me to ensure that we can lift this sunset that’s on FAST-41 now without making policy changes to the law so that the Permitting Council can continue its good work past 2022. Will you commit today to work with me to pass a sunset removal for FAST-41 that retains the current law?”

Ms. Tanden: “Yes, Senator and I do want to appreciate your leadership and the leadership of this committee. You’re absolutely right, this has been a very successful program. A 60 percent reduction in time for permitting, 60 percent since 2018. A 60 percent reduction in time is also a big savings in resources to the government but also for people who are trying to build major projects and as we talked about in our discussion, I recognize that permitting – the long time it can take for permitting is actually a real challenge in the United States.”

Portman: “So at a time when we’re all talking about infrastructure, it’s very popular, it’s very unpopular to talk about how to find the money for it. A big challenge. This helps the federal dollar go further so can you answer my question on whether you support taking off the sunset?”

Ms. Tanden: “Yes, I do.”

Portman: “Okay, thank you. On Buy America, we talked about this earlier, the Made in America office and so on, I was pleased to see the executive order strengthening the Buy America Act. In some ways, by the way, it mimics a bipartisan Act that we’d like to work with you on, which would codify some of those good ideas. In other ways this new EO, though, does weaken the domestic content requirements. It is troubling to see to me on Section 8 replacing the component test, so-called, with a new value-added test, replacing the component test score, whereby 50 percent of the components must be made in America. It appears contrary to the Buy America Act, which explicitly references that test. Moreover, replacing the component test in order to count labor costs sounds nice, but it’s counterproductive. Labor’s already counted in the cost of the component. In this way the EO risks losing the amount of U.S. content being procured. So what sounds like a noble assist, may actually end up throwing American workers under the bus. What authority in the statute do you believe gives the federal acquisition regs the ability to replace the component test as a way to calculate the qualifications of U.S.-made goods?”

Ms. Tanden: “Well first let me say Senator, that I really welcome the opportunity to work with you on this. The intent here is to not weaken protections to ensure that we are creating jobs in the United States and helping companies in the United States so if there is some way in which we can work with you on this, we welcome that opportunity because I want to say that the goal of the Buy America provision is to strengthen the ability of us to, in the procurement process, select American companies. So I just welcome that opportunity.”

Portman: “Yeah I think you’ll find this component one was running the other way and I don’t think it’s advertent. On the Buy American executive order that President Biden blocked on day one that President Trump had put into place, I also have concerns. This was a rule that increased the amount of content that was made in America from 50 to 55 percent for iron and steel products to 95 percent from 50 percent for iron and steel in particular. This was viewed as a big victory for American manufacturing and especially for workers in the steel industry. I understand that a blanket regulatory freeze was put out in the beginning but can you commit to adopting these improvements on behalf of American workers?”

Ms. Tanden: “I would absolutely work with you to ensure that our Buy American provisions are as strong as possible.”

Portman: “Okay, again I think again it may have been inadvertent but the impact of it is to hurt manufacturing here in this country. On the IT front, we talked about the need to modernize and we did pass this 21st Century IDEA bill to modernize our federal websites but we need to do much more. On the artificial intelligence front you mentioned earlier, there are two issues. The previous administration launched a process at OMB, as you know, to articulate guidance for the regulation of AI in the private sector and they also signed the AI in Government Act which created a similar process to regulate our own internal use of AI. So, we’ve got two things going on, both are broadly supported by industry and civil society. Would you commit to continuing these popular OMB processes so we can quickly and effectively get guidance out to agencies on the regulation of artificial intelligence?”

Ms. Tanden: “Absolutely.”

Portman: “On cyber issues, this massive breach we talked about earlier, SolarWinds, confirms what we’ve known for a long time. Our subcommittee here called PSI did an investigation report that I led which was unfortunately a wakeup call saying agencies have failed to comply year after year with the basic cybersecurity requirements, you know basic hygiene as they say, primarily with the Federal Information Security Modernization Act, FISMA. And they’re required under FISMA, federal agencies, to notify Congress if they experienced of major incident. OMB is charged with developing this guidance, by the way, to determine when a cyberattack is a major incident. Unfortunately on the area of SolarWinds -- again massive attack, the worst breach we’ve ever had in the history of our country -- only a handful of agencies reported a major incidents. Which is one reason, frankly, the U.S. government was not on top of this sooner. Can you look at that current standard and would you believe that it needs to be revisited?”

Ms. Tanden: “Absolutely and I would say transparency to the Congress and the public around cyber incidents is really vital, obviously consumers are affected, the public is affected by these attacks and information is really a cornerstone.”

Portman: “Well I’ve got more questions in that area with regard to OMB’s role on cyber because again, unfortunately this latest attack has just magnified the fact that we’re woefully behind at our agencies and again the private sector needs guidance as well. One final question, I understand from my staff that you discussed the need for us to create an environment where we can be honest about the problems facing Social Security. I would agree. It seems however that we need to build trust across the aisle in order to get people out of their partisan foxholes here to at least discuss these issues seriously. Can you commit to me today that you will work in good faith to help us educate the American people about the problems facing Social Security and give members of both parties some running room they need to be able start laying out potential solutions?”

Ms. Tanden: “Yes Senator, I would say President Biden has put forward ideas on Social Security solvency, lifting the payroll cap for families over $400,000 of income but I appreciate the bipartisan interest in these issues and I welcome a conversation about these and anything we can do and any way I can be a partner in that, I welcome that opportunity.”