First Obama signing statement questions whistleblower clause

A sharp-eyed reader e-mailed us and asked us to consider adding a promise about signing statements to our Obameter database.

Signing statements are memoranda presidents issue when signing legislation. President George W. Bush used them to indicate when he disagreed with aspects of a new law and explained how he would carry out the law. Bush used signing statements on topics from torture to the the qualifications that the nation's top disaster official should have.

During the campaign, Barack Obama discussed his philosophy on signing statements with the Boston Globe , which won a Pulitzer Prize for investigating the practice. While Obama said he would continue the use of signing statements, he also said he would not use them to "nullify or undermine congressional instructions as enacted into law." He said it was "a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability."

After taking office, President Obama issued a memo outlining the principles he would consider when issuing signing statements. Among other things, he said he would alert Congress to constitutional issues early enough so that legislation could be crafted to avoid a signing statement and that he would strive to find laws constitutional unless he has a "well-founded" reason for believing otherwise.

Two days later, Obama issued a signing statement for the Omnibus Appropriations Act, 2009, a spending bill left over from the previous year. Obama objected to five aspects of the bill, including several that had to do with the execution of foreign policy.

But one of his exceptions drew the ire of Sen. Charles Grassley of Iowa. A clause in the act said that Congress would not pay the salary of any federal worker who "attempts or threatens to prohibit or prevent, any other officer or employee of the federal government from having any direct oral or written communication or contact with any member, committee, or subcommittee of the Congress."

Grassley said the section is intended to protect whistleblowers. "This rider was first included in appropriations bills in 1997 and has been included in appropriations bills since," Grassley said in a statement on the Senate floor. "It is a strong signal to all agencies that efforts to block federal employees from coming to Congress won't be tolerated."

Obama's signing statement said, "I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

Grassley said other presidents had objected to the clause, but Grassley was particularly displeased with Obama's saying that his concerns were with communication that would be "otherwise confidential."

"By failing to define 'confidential,' President Obama has given a blank check to executive branch agencies to block communications with Congress related to an undefined, broad category of information," Grassley said.

In one sense, this seems like a classic argument over the separation of powers. Congress wants people to give it information, while the president wants to control the release of information from its administration.

But the dispute also raises questions about whether Obama has broken his promise. Obama said he would not use signing statements to "nullify or undermine congressional instructions as enacted into law." The "otherwise confidential" language seems like a loophole, and his signing statement seems to undermine clear congressional instructions.

It's still early in Obama's presidency, so we're not quite ready to rate this one Broken. He didn't say he would never use a signing statement, he specified that he would not use them to nullify or undermine what Congress wanted. But we view his action on the omnibus bill as contrary to the spirit of his promise and it raises questions about whether he will follow through with his pledge from the campaign. We're going to rate this Stalled for now. We will be watching closely to see what other signing statements Obama issues, and we leave the door open to changing our ruling.