A mid-level House aide said yesterday that he was the one who, during last month's drafting of a huge spending bill, added a provision that could give staffers on the House and Senate appropriations committees broad access to Americans' tax returns.
Richard E. Efford, a 19-year veteran of the House Appropriations Committee, said he did not inform any elected official before inserting the provision and advised his immediate boss, Rep. Ernest J. Istook Jr. (R-Okla.), only after it was too late to make changes. He said other House and Senate appropriations staffers in both parties were aware of the provision, however, and believed it gave them needed authority to enter facilities of the Internal Revenue Service to inspect how taxpayer funds were being used.
"I would guess we all thought it was a housekeeping thing that would help our bosses but did not need to be elevated up to them," said Efford, a mild-mannered man who described himself as "dumbfounded" by the uproar.
When the existence of the provision became known Nov. 20, just hours before Congress was to vote on the spending bill and adjourn, irate lawmakers in both parties denounced it as a sinister encroachment on Americans' privacy. Several suggested its presence in the spending bill may have had the approval of GOP leaders.
The furor forced Republican leaders to promise not to send the $388 billion government-wide spending bill to the president until both houses had passed separate legislation repealing the provision. The Senate has already taken that action, and House leaders have called members back to Washington for an unplanned session next Monday to do the same.
But a reconstruction of what happened suggests less a sinister conspiracy than problems arising from the legislative practices of the present Congress, in which sleep-deprived staffers often take on much of the burden of writing major bills under deadline pressure, and legislation drafted in secret is rushed through both houses before members, let alone the general public, have a chance for review.
'Process is broken'
Sen. Kent Conrad (N.D.), ranking Democrat on the Budget Committee, warned that "something really seriously bad is going to happen if we let this continue." Sen. John McCain (R-Ariz.) said, "This process is broken."
In his first interview about the incident, Efford said yesterday that the genesis of the provision was problems he encountered this summer when he sought agency permission to visit an IRS facility where tax returns were being processed.
Over the past several years, Congress has appropriated more than $1 billion for the IRS to upgrade computer systems, and the agency has also received hefty increases to expand its tax-collection operations.
As the top staffer on the House Appropriations subcommittee that oversees the IRS budget, Efford said, he had a responsibility to inspect IRS facilities, observe computer programs and assess whether requests for additional tax enforcement personnel were justified.
But the IRS objected to on-site visits, he said. "They said if someone's return was up on a computer screen and you glanced at it there would be a release of taxpayer information," a breach of privacy laws the IRS could not accept, Efford said.
IRS officials suggested that he seek authorization from the House Ways and Means Committee, whose chairman has a right under the tax code to designate staffers to examine returns and files for the purpose of assessing the effectiveness of tax law.
"I thought, why should Appropriations Committee staff have to go beg another committee for the right to review how appropriated funds were being used," Efford said.
The matter, he said, was discussed with other committee staffers this fall. Efford said a Democratic staffer told him he had had a similar problem getting access to the IRS facilities. As a result, Efford said, he wrote language that would amend the tax code to give him and other Appropriations staffers the same inspection rights as Ways and Means personnel.
Sources said that idea was discarded because of concerns about turf conflicts with Rep. Bill Thomas (R-Calif.), the powerful and sometimes irascible Ways and Means chairman. Efford said he then asked the IRS to produce a provision that would satisfy the service's concerns.
With only one or two words changed, said Efford, that was that language that went into the spending bill. It was broad. It set aside existing privacy protections and gave the chairmen of the House and Senate appropriations committees power to designate staffers who would have "access to Internal Revenue Service facilities and any tax returns or return information contained therein."
But it attracted little attention, he said, because House and Senate appropriations aides in both parties were engaged in marathon negotiations to complete the 3,000-plus-page omnibus spending package the week before Thanksgiving.
"Everything was popping, and we said this is good because it comes from the IRS," Efford recalled.
Efford said he worked until 4 a.m. Nov. 18 and until 6 p.m. Nov. 19 to wrap up his section of the bill and got little sleep either day.
In this state, he said, he and other staffers missed the explosive implications, in part because they knew the spending bill already contained standard language, included annually, stating that "the Internal Revenue Service shall institute and enforce policies and procedures that will safeguard the confidentiality of taxpayer information."
The blunt language did raise a concern from a Senate Democratic staffer who suggested in an e-mail: "I wonder if you want to say something . . . clarifying that this is just to allow observation of facilities. A naive reading can leave the impression that certain staffers can go look at their brother-in-law's tax return for grins."
As a result, a statement was included in a separate report accompanying the bill indicating the provision was intended only to streamline oversight of the IRS.
Once the controversy erupted Nov. 20, Istook, who chairs the Appropriations subcommittee overseeing IRS spending, jumped in to criticize the process. "The subcommittee chairman should never be bypassed like I was in this case," he said in a written statement. "We have a problem with how bills like this are put together."
"This was totally inadvertent that it would get to be a big flap," Efford said. "To hear senators talking about it as some kind of conspiracy for us to go in and cart off records. It was painful to listen to it. That was the hardest part, because it was not intended."