Congressional oversight powers were the focus of a House Modernization Committee hearing this past week. We were impressed because the discussion went past many clichéd, inaccurate observations that are often advanced concerning what’s broken in Congress and moved to diagnosing the impediments to Congress holding the Executive branch to account and making recommendations on fixes.
By way of background, here is the video of the hearing and here is the written testimony for witnesses Elise Bean, Josh Chaffetz, and Anne Tindall, who all did an excellent job. Demand Progress submitted a brief report containing four major recommendations on how Congress can strengthen its oversight, and you might also be interested in our 2020 primer (with POGO) on Congressional staff clearances. We also would be remiss if we did not point you to the excellent congressional oversight handbook written by the inimitable Mort Rosenberg entitled When Congress Comes Calling.
The Problem
Congress has a difficult time obtaining timely, accurate, complete, and insightful answers from the Executive branch on its activities. It is not unusual for the Executive branch to slow walk responses to Congress, provide non-relevant information, or simply stonewall demands for information.
Traditional mechanisms by which Congress can vindicate its requests for information, such as through the appropriations process, are slow and often obstructed by a combination of Congress’s consensual mechanisms, problems arising from timeliness, and Executive branch defiances. Other mechanisms, such as holding up nominations, only work (at times) in one chamber — the Senate. More direct methods to force witnesses to comply, such as through statutory contempt, must go through the gauntlets of a Department of Justice unwilling to enforce such findings and federal courts that are glacially slow, unwilling to get involved, and often partial to Executive branch perspectives.
The Clichés
There are many misconceptions about oversight that were excavated at the hearing. Below we highlight bipartisanship, minority rights, and the media.
Bipartisanship
One myth about congressional oversight is that it is only valid when done in a bipartisan way and that we need more bipartisanship for oversight to occur. There are many issues where a bipartisan — or nonpartisan, or multi-partisan — approach to oversight is important and welcome. However, many important investigations start and proceed along partisan lines, such as Watergate, and they may or may not ultimately become bipartisan matters. Members should be allowed to pursue their lines of inquiry within reason regardless of whether there is bipartisan support (or even broad support from inside the caucus). We agree that more needs to be done to encourage and train members and staff — especially for new members and staffers — in how to conduct oversight and how to work collaboratively, but oversight does not necessarily implicate bipartisanship.
Minority Rights
On the topic of minority rights, there was a conversation around whether a more evenly balanced House, with power flipping between the parties, would help enshrine broader protections for the minority into the rules. While some believed that the alternation of power would lead to more protections for the minority, it is our view that it is just the opposite: members wish to make use of their short time in power to do as much as they can without being restricted by the minority party. And, while this additional point was not addressed at the hearing, we would also suggest that a major factor concerning protections for the minority and bipartisan collaboration has to do with leadership incentives. House leaders maintain their control by keeping their caucus together, which means strongly discouraging members of the majority from working with the minority on issues that could divide the majority. There is a strong built-in disincentive coming from the top. Perhaps when leadership was more certain that their party would retain power for decades, just as Democrats did from the mid-1950s to 1980, they would be willing to allow collaboration with the minority. However, so long as leadership runs the chamber and the margins are thin, they will shape the incentives against protecting minority rights or encouraging collaboration.
The Media
Another myth is a gotcha media culture encourages conflict over cooperation and thus is responsible for the breakdown of congressional oversight. The media often focuses on conflict and has done so whether the news is transmitted over the internet, on cable, over the air, on the radio, or in print. While we could point to the algorithmic amplification of certain information over social media as a particularly pernicious issue, the problem of Yellow Journalism goes back a very long time. At the start of our country, the media outlets were affiliated with political parties. It would be unrealistic (and ahistorical) to expect the media to encourage and reward quiet, collaborative approaches to oversight.
What To Do
The witnesses had a number of excellent reform ideas that they laid out in detail in their oral and written testimony, as well as some useful cautionary notes.
Subpoenas
Several witnesses argued for strengthening Congress statutory and inherent contempt authorities. The Justice Department has long expanded its own powers and undermined Congress’s statutory contempt powers by granting itself discretion about enforcement and using the courts to drag out the proceedings; the courts themselves are often reluctant to rule. Some thought was given to reinvigorating Congress’s inherent contempt powers, although a cautionary note was sounded that the courts likely would be unwilling to go along. However, we do approve of the idea that shifting the burden to the contumacious witnesses while the matter is resolved in the courts could be a productive approach to encouraging compliance. For our part, we support suggestions both to require transparency around the Justice Department’s OLC opinions and to strengthen the General Counsel’s offices in both chambers. There is an existing recommendation for GAO to look into how the latter could be accomplished.
We also agree that there is value in thinking through how to expedite the appeals process to the courts, even acknowledging their reluctance to get involved. Title IV of the The Protect Our Democracy Act provides some necessary, but not sufficient, mechanisms to reinvigorate Congress’s powers with respect to subpoenas.
Power of the Purse
We agree that there is significant utility in Congress using its power of the purse authorities to push for Executive branch compliance, even while we acknowledge that such authorities can be slow, cumbersome, and hazard defiance from the Executive branch. We would suggest using the appropriations bills as vehicles to move authorizing language to strengthen Congressional oversight powers, where a veto would result in defunding parts of the Executive branch that the president cares about.
The Courts
There was significant discussion about the unwillingness of the courts to intervene to protect congressional prerogatives, their slowness in resolving matters, and an undue Executive branch perspective. For our part, we would recommend that the Senate ensure that presidential nominations for federal judges include a significant number of former congressional staff — just as they already overrepresent people who served in the administration — to ensure congressional prerogatives are represented.
Legislative Staff Capacity and Tools
A theme throughout the meetings of the ModCom has been a lack of Congressional staff capacity — there are too few staff and they are too junior. This is a problem that lies entirely within the control of Congress. It simply must awaken to the fact that a weak Legislative branch is one that will invariably lose in confrontations with the Executive branch. It seems that, at least for members of the ModCom, that they have wisely come to that conclusion.
We particularly wish to elevate a recommendation around ensuring that Members have personal office staffers with the necessary high clearances to be able to conduct oversight. There are hundreds of thousands of Executive branch staff with TS/SCI clearances, but not a single one in a House or Senate personal office. The number in committee offices altogether is probably on the order of 1,000. This makes no sense. Members cannot be expected to conduct oversight singlehandedly, which is why they have staff. And those staff should be empowered to help members as necessary, including being granted high clearances as needed. For more, see our primer on congressional clearances.
Conclusion
Oversight is a crucial function of Congress and one that is falling into desuetude through a combination of sapping Congress’s internal capabilities and Executive branch recalcitrance. The ModCom hearing provided a thoughtful survey of some key oversight questions and demonstrated that much more work needs to be done so that Congress can perform its constitutionally-mandated mission. In concert with the prior week’s hearing that looked at the policy support agencies, we are glad to see ModCom moving in this direction.
— Written by Daniel Schuman and Taylor J. Swift
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