Expert witnesses with potential conflicts of interest often disclose far less than required by law.

By Christine Lytwynec, Flaviana Sandoval, Diego Marcano and Jahnavi Bhatia

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News Oversight Politics

In Washington, it’s an expert’s pedigree at a university or major Beltway think tank that often gets them a seat before Congress at a hearing. Sometimes these institutions receive money from foreign governments, presenting potential conflicts of interest — financial ties members of Congress still often are unaware of despite a nearly 5-year-old “Truth in Testimony” rule that mandated disclosure of foreign government funding.

Scholars and experts frequently are called to testify about issues that foreign government donors to their organizations could have an interest in and they sometimes do so without disclosing potential conflicts. The lack of accountability also allows witnesses to slip through loopholes in the congressional rule and not disclose foreign funding as required, whether intentionally or not.

A think tank scholar from the Center for Strategic and International Studies failed to disclose money his institution had received from Saudi Arabia despite advocating for U.S.-Saudi relations.

“We should have friends there,” he said.

There are more than just a few similar instances. In fact, nearly 17% of the witness disclosure forms submitted from 2015 through 2018 didn’t even ask the required question about foreign funding.

Lawmakers use testimony at congressional hearings to make decisions about key issues ranging from health care to immigration to climate change, and experts say that’s why knowing about any potential conflict is important. Many scholars argue that their work and views are independent of any donor interests, including foreign governments.

Joseph Sandler
Attorney Joseph Sandler is an expert in foreign government lobbying laws.

Still, Joseph Sandler, an expert on foreign government lobbying laws and an attorney at Sandler Reiff Lamb Rosenstein & Birkenstock in Washington, said disclosure is required and important even if the funding didn’t shape an expert’s views.

“Congress is getting advice that is purportedly in a nonpartisan, neutral expert — it’s going to be taken into account into the legislation,” he said. “The importance of this is transparency.”

Even in non-legislative hearings, the Truth in Testimony forms have recently played a role. When President Trump’s former personal lawyer Michael Cohen testified before the House Committee on Oversight and Reform at a high-profile hearing in February 2019, multiple legislators and Cohen sparred over what is required to be disclosed on the required form.

Rep. Mark Meadows, a Republican from North Carolina, asserted that Cohen had lied on his form by not disclosing the “contracts with foreign entities,” which Cohen admitted to earlier in his verbal testimony.

“On here, it was very clear, that it asked for contracts with foreign entities over the last two years. Have you had any foreign contract with foreign entities, whether it’s Novartis or the Korean airline or Kazakhstan BTA Bank? Your testimony earlier said that you had contracts with them,” Meadows said.

Cohen said he did not list them on his form “because those foreign companies […] are not government companies,” but rather “publicly traded companies.”

Former Rep. Katie Hill, D-Calif., (pictured below) followed up on the matter, clarifying that “the question is, in fact, whether witnesses have any contracts or payments originating with a foreign government. It does not cover all foreign entities, just foreign government entities.”

“The question is whether witnesses have any contracts or payments originating with a foreign
government.”
–Former Rep. Katie Hill, D-Calif.

The controversy about what’s required to be disclosed is not limited to the Cohen hearing. There is a wide variation in the level of disclosure on these forms — whether due to lack of consistency in the form itself, varying interpretations of the wording on the form, or actual intent to defy the law and withhold information. Because there are few other ways, often none, to find out if the witness has or had financial ties to a foreign government, the end-result is semi-transparency, which can potentially create a chilling effect on those who do disclose and a lack of accountability for those who don’t.

During the impeachment hearings, former special envoy to Ukraine Kurt Volker has been the only witness so far to fill out a form because most are government employees and exempt from the requirement. Under the question about whether or not he had received foreign funding related to the hearing, Volker stated “N/A.”

‘Everybody has an agenda’

At a May 2019 committee hearing, each of the four witnesses sitting before Congress came from major Beltway think tanks to advise lawmakers on China’s Expanding Influence in Europe and Eurasia. Three of the think tanks had received funding from various European countries with an apparent interest in the hearing, but only two of the witnesses disclosed the money when they filled out and signed Truth in Testimony forms.

Disclosures

Phillipe Le Corre, a nonresident senior fellow of the Europe and Asia programs at the Carnegie Endowment for International Peace — a think tank that voluntarily discloses receiving hundreds of thousands of dollars from the European Commission, the United Kingdom and Norway — checked “no” on the question asking if he or Carnegie had received money from foreign governments “related to the subject of the hearing.”

Sitting before lawmakers on the Foreign Affairs Committee, he said, “the U.S. Congress should use all its possibilities to collaborate with Europe to build consensus over the immediate security, technological and geo-economic sides of China’s expansion.”

He pointed to a European Commission report that labeled China a “systemic rival” and “strategic competitor” and recommended Congress pursue more opportunities in Europe as a way to offer an alternative to U.S. investment in China.

Members of Congress at the hearing perhaps didn’t know it — one member said he hadn’t reviewed the forms — but right next to Le Corre sat Stephanie Segal, deputy director and senior fellow at the Center for Strategic & International Studies. Unlike Le Corre, she had disclosed funding CSIS received from the European Commission. She also reported CSIS funding from countries such as the United Kingdom, France and Germany.

Like Le Corre, she advocated partnering with Europe. She spoke about how “cooperation between the United States, Europe and other like-minded countries will maximize the chances of shaping China’s behavior and protecting U.S. interests.”

As he was leaving the hearing, a reporter for the Investigative Reporting Workshop approached Rep. Tim Burchett, a Republican from Tennessee, to ask if he had reviewed the Truth in Testimony disclosures from the witnesses. He said he hadn’t seen them.

But Burchett said viewing the forms likely would not have changed his perspective on what he heard during the hearing.

“I think everybody up here has an agenda, and to think that they don’t is just foolish,” he said. “There is nothing pure about any of this.”

When asked after the hearing why he didn’t disclose European funding the Carnegie Endowment had reportedly received from foreign governments, Le Corre said he was appearing before Congress in a personal capacity.

“Why should I disclose?” he asked.

But his testimony was on Carnegie’s letterhead and posted in full on the think tank’s website. Also, under the question “Organization or organizations you are representing,” his form stated “Carnegie Endowment for International Peace.”

Le Corre chalked it up to inexperience.

“Honestly, this is my second time testifying,” he said. “I have no idea.”

A spokesperson for the Carnegie Endowment for International Peace said the House determines what is within the scope of the subject of the hearing and their scholars abide by submitting Truth in Testimony forms with accurate and up-to-date information.

IRW asked the Carnegie Endowment why Le Corre did not disclose funding from the European Commission and other European countries at a hearing called “China’s Expanding Influence in Europe and Eurasia.”

“The subject of the hearing was about China’s influence, and Mr. Le Corre did not, and has not, accepted funding from the Chinese government,” a spokesperson said in an email.

Amos Jones, a Washington lawyer who has specialized in the Foreign Agents Registration Act, said, “Congress might need to become more specific in what the rule means where it states ‘related to’ because one can wind up delving into, especially with question and answers, areas that are not even directly on point with what one was called to testify about.

“Best practices are to make mention up-front of your awareness of foreign government money within your organization, including governments you are discussing, whose interests may be at play,” with a statement that those funds or contracts did not relate to your testimony in any way, provided that is true.”

Some committees ignore the rule

In 2015, the House enacted a rule requiring all witnesses appearing in a nongovernmental capacity before House committees to fill out a Truth in Testimony form disclosing recent “contracts or payments originating with a foreign government” that are “related to the subject matter of the hearing.” The rule followed an investigation in The New York Times that found that some foreign governments were trying to influence lawmakers with contributions to think tanks.

But four years later, an examination by a team of Boston University data-journalism students for the Investigative Reporting Workshop shows some committees haven’t been taking the foreign disclosure rule seriously, and in some cases, people who appear before Congress either weren’t asked or didn’t disclose the very types of potential conflicts the rule was meant to illuminate.

Between the time the rule requiring disclosure of foreign funding was enacted in 2015 and the end of 2018, at least 1,354 witnesses filled out a version of the disclosure form that had no question about foreign funding.

Take Paul Kupiec, a scholar from the conservative American Enterprise Institute who testified before Congress six times between 2015 and 2018. Each time, he appeared before the Committee on Financial Services, and each time, the committee failed to ask him about foreign funding.

Paul Kupiec
Paul Kupiec, a scholar from the American Enterprise Institute, testified before Congress six times between 2015 and 2018 and was never asked by legislators to disclose any ties to foreign funding.

The think tank posted his testimony on its website.

Kupiec said even if Financial Services had asked about foreign funding, he would have said he represented himself and checked “no.” However, he said, it would be more complicated to answer the question if the testimony were on think tank letterhead because it could give the impression it had institutional backing.

“It looks like the think tank’s position,” he said.

Kupiec said his testimony was always his own and not on institute letterhead. But a review of committee documents showed Kupiec’s testimony was regularly submitted with a cover page featuring the American Enterprise Institute’s logo. When IRW asked him to clarify, he said in an email that the cover page was different, as a “letterhead would have every page embossed with AEI in a header or a footer.”

Sandler, the expert on foreign government lobbying laws, said it’s important for Congress to know about any foreign government money — not just funds given to the person testifying but also to the institution they come from.

“They are all going to say they’re neutral scholars, but [members of Congress] want to know if their employers — the organization they represent — has taken money from the foreign government that they’re commenting on,” he said.

The Truth in Testimony rule requires disclosure only when the payment is “related to the subject matter of the hearing,” which means there is room for interpretation.

Derek Scissors, a resident scholar from the American Enterprise Institute, said: “It depends on what your definition of related to the hearing is.”

 Testimonies

And Richard Painter, chief White House ethics lawyer in the George W. Bush administration and professor of law at the University of Minnesota, said that “there is only so much you can do with this form.” said Painter added: “ I don’t think that changing the form is going to help a lot because what you don’t want to do is create a huge burden for every witness to show up with a lot of information every time they testify before Congress. One thing that may help in Congress is to have 10 to 15 minutes of questioning before the testimony, about conflicts of interest.”

Knowingly providing false statements to Congress is a crime, Painter said.

“If you had a back and forth, under oath, with Committee Counsel, where the Counsel could ask about conflicts [of interest] that would be very, very helpful,” he said.

At a May hearing about economic and geopolitical challenges posed by China, Kelly Magsamen, vice president of National Security and International Policy at the liberal think tank Center for American Progress, didn’t advocate for Taiwan but she also didn’t disclose that the think tank had received between $100,000 and $199,998 in 2017 and 2018 combined from the Taipei Economic and Cultural Representative Office — the de facto U.S. embassy of Taiwan.

The Center for American Progress, which has longstanding ties to the Democratic party, declined to be interviewed for this story but provided a statement saying the think tank’s work is “independent and driven by solutions that we believe will create a more equitable and just country.” The center said the payments were for “general support” and “not directed toward any specific program.”

The Center for American Progress said it supports greater transparency regarding foreign government funding sources across all think tanks and that its recent China strategy calls for the Internal Revenue Service to incorporate foreign funding sources as a mandated reporting requirement on Form 990.  Magsamen, in the white paper submitted for the record at the hearing, described this IRS model as a new strategy to increase transparency of foreign funding within think tanks.

Painter, the former George W. Bush ethics chief, agrees.

“It depends on what your definition of ‘related to the hearing’ is.”
—Derek Scissors, American Enterprise Institute

“We need more transparency across the board about organizations inside the United States, for-profit corporations that have business dealings with foreign entities and nonprofit organizations such as think tanks and trade associations,” he said. “Because there is a lot of foreign money behind a lot of these entities that are flying the American flag,” he said. “And until we get that, we are not going to have transparency with respect to foreign money before Congress any more than we are going to have transparency with respect to influence in elections from these organizations.”

At the request of the Investigative Reporting Workshop, Sandler, an expert in federal foreign lobbying and ethics, reviewed several disclosure forms, donor rolls and written testimonies from multiple witnesses and think tanks.

While the committees and witnesses might not be “violating the letter of the rule,” Sandler said, what is happening is “clearly not in the spirit” of it.

At a hearing about Chinese and Russian influence in the Middle East, Jon Alterman, the director of the Middle East Program at the Center for Strategic and International Studies, talked about the United Arab Emirates and Saudi Arabia, among other nations in the Middle East. He advocated for the U.S. to rethink its approach to the region as a response to China’s growing influence.

After Alterman’s testimony, when lawmakers questioned him about U.S-Saudi relations, he said the U.S. “should have friends in the region” and although the U.S. government will not compromise on some issues, “people should want to be our friends because they understand that the U.S. package is a better package [than the Chinese].”

Alterman told lawmakers that the Saudi Crown Prince Mohammed bin Salman is “interested in demonstrating to the United States how he has other options if the United States is going to continue to talk about human rights and other kinds of things.” Alterman said he was concerned about the U.S. being isolated from the Middle East and how that leaves the door open for Chinese and Russian influence.

Despite these statements, Alterman did not disclose in his Truth in Testimony form funding that CSIS reported on its website from Saudi Arabia and the UAE.

Louis Lauter, vice president of congressional and government affairs for CSIS, said the think tank “made the determination that our funding from UAE and past funding from Saudi Arabia in this case didn’t relate to the subject of the hearing.”

“We disclosed what we determined was relevant to what was being asked per committee instructions,” he said in an email. “We cannot account for every question that may or may not be asked by members of Congress and are not required to.”

Lauter also said CSIS has a standardized procedure to cast a wide net across the organization’s funding and see what needs to be disclosed to be transparent.

New party in power, new rules

When Democrats took over the House this year, two committees made different changes to the way they handle Truth in Testimony. One committee started to ask consistently about foreign money for the first time since Congress made the rule. Another stopped asking completely.

For four years, the House Committee on Financial Services failed to ask all but three people who testified whether they had received any foreign government money. During that time, witnesses filled out a total of 618 forms at 160 hearings on key subjects such as “The Implications of U.S. Aircraft Sales to Iran” and “Restricting North Korea’s Access to Finance” without any mention of potential foreign interests. The committee began asking this year after a House report requested the creation of a standardized PDF Truth in Testimony Form. The request was meant to avoid messy handwriting, not to specifically address inconsistencies in foreign funding disclosure.

However, the Committee on Small Business had not been asking any witnesses to disclose foreign funding at any of its 2019 hearings as of mid-June, when IRW conducted its last review of disclosure forms available online. A spokesperson for the Small Business Committee said members sought guidance on the rule and determined the committee is not in violation.

The committee updated its form in later in June to include a question about foreign funding.

In some cases, even committees that ask the question about finances don’t always make the form available. At a hearing called “Questions Regarding the U.S. Census” before the Committee on the Judiciary in June 2018, the committee provided no disclosure forms online.

When asked for the files, Shadawn Reddick-Smith, a spokesperson for the House Judiciary, said the leadership didn’t have access to those forms because they were from the previous Congress.

“You should reach out to the Judiciary Republicans since the committee was run by the GOP during that time,” she said. “They may be able to access their files or tell you why it isn’t up there.”

The office of Rep. Doug Collins, a Georgia Republican and the committee’s current ranking member, said the office didn’t have any information related to this hearing. Collins’ office provided a link to a website, but the form is not available there.

In fact, it doesn’t have to be.

The rule requires Congress to make disclosure forms “electronically available,” but it does not require a physical archive.

“The government needs to make this transparent,” said Amos Jones, the Washington lawyer who specializes in the Foreign Agents Registration Act. “Part of the transparency is for Congress to follow its own rules.”

According to a review of disclosures filed between 2015 and 2018, almost 700 forms across six committees had the question phrased in a way that only asked for disclosure of foreign funding received by the individual witness and not by their represented institution.

“Well, that’s Congress. They don’t want to enforce it. You know, they are not taking the time to enforce it,” Richard Painter said. “I think counsel for the committee needs to devote some time to this and also ask questions of the witnesses before the hearing starts and put that all on the record and immediately put it out on the website and disclose it to the public.”

Professor Anna Gelpern testified before the Financial Services Committee in May 2017.

Among the many witnesses Congress didn’t ask about foreign funding was Professor Anna Gelpern, who testified before the Financial Services Committee in May 2017 about Greece’s bailout. At the hearing and in her written testimony, she identified as both a Georgetown University Law Center professor and a non-resident senior fellow at the Peterson Institute of International Economics.

On her disclosure form, Gelpern listed only her university position. But the think tank featured her appearance in its annual report from that year, saying “Gelpern testified to Congress on the indispensable role of the IMF in Greece’s debt crisis and how an independent IMF is in the U.S. interest.”

Because the form she signed didn’t ask about foreign funding, there was no obvious space or prompt to disclose such money. But the Peterson Institute’s donors have included the European Commission, which according to Gelpern’s own testimony was directly involved in the Greek bailout.

Jacob Kirkegaard, one of Gelpern’s colleagues, filled out a Truth in Testimony form in 2015 — shortly after the foreign funding disclosure rule’s enactment — disclosing the institute’s funding from the European Commission.

IRW asked Gelpern if she would have disclosed any pertinent foreign funding if the form had included the question.

“Of course I would have!” she said in an email. “It’s the right thing to do.”

When asked specifically whether she would have included funding the Peterson Institute received from the European Commission, Gelpern said in an email it would depend on the circumstances. Both the Peterson Institute and Georgetown have “lots of funding from different sources,” she said.

“Even if PIIE had been paying me a salary, I would not think of it as EC money any more than any other PIIE donor’s money,” she said in an email. “I worked on an EC-funded project later that year or the year after, but even then, I did not know whether it would be a paid assignment for me.”

Gelpern noted that the way a witness interprets the meaning of the phrases “related to the subject matter of the hearing” and “the entity you represent” can make a substantial difference in how they fill out the form.

If interpreted broadly, she said, she “might have to seek advice from university ethics officials. There should be a consistent policy across the institution.”

“Would it be good practice to disclose all or most material affiliations? Good question, I think, as institutions develop policies on this,” Gelpern wrote.

At the American Enterprise Institute, Derek Scissors, who specializes in the Chinese and Indian economies and U.S. economic relations with Asia, said it might be helpful to develop systems enabling those who testify before Congress to check for any foreign donors that might need to be disclosed.

Scissors testified at a hearing titled “Step or Stumble: The Obama Administration’s Pivot to Asia,” where he recommended that the U.S. take “substantial steps forward on trade and investment in the Asia-Pacific,” and talked about the possibility of exploring potential trade agreements with Japan, among other countries in the region.

He told lawmakers “a truly high-standard deal with Japan would offer hefty benefits,” and that “Trump should inquire if Tokyo is interested.”

On the Truth in Testimony form Scissors submitted for the hearing, he wrote that he was representing the American Enterprise Institute and checked “No” on the question asking about contracts or payments from foreign governments related to the subject matter of the hearing.

However, records filed under the Foreign Agents Registration Act show that the Japan External Trade Organization made two separate payments to the American Enterprise Institute in 2014 and 2015. Both payments were within the time frame required on the disclosure form Scissors submitted.

When IRW asked Scissors why he didn’t disclose the money from the Japanese group, he said he didn’t know about it. In retrospect, he said, perhaps he “should have done something different and should have checked on that” before filling out the form and that “maybe AEI should have procedures in place for that.”

Then again, he said, as long he didn’t know about the funding and no one was saying “Hey, be nice to this country,” he was “not wasting time” to try and find out.

The money did not influence his testimony, he said, so Congress “didn’t need to know about it.”

More about this project
  • Key numbers reveal forms are often incomplete.
  • How our team compiled and analyzed House forms.