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Executive Oversight: Congress’ Oft-Neglected Job

Congressional oversight is an effort of the legislative branch to examine the activities of the executive branch. This is perhaps the simplest definition of “Congressional oversight”. Walter Oleszek, writing for the Congressional Research Service in Congressional Oversight: An Overview, notes that political scientists have many definitions for the term; however, it’s probably not necessary to delve into the various nuances differentiating them. Whatever your definition, a key point to remember is that this process is one of the most important legislative checks on Presidential power. Members of Congress might investigate the administration for a number of reasons. First and foremost, legislators will exercise oversight to verify whether the President has “[taken] Care that the Laws be faithfully executed”, a task given to him in the Constitution (Article 2, Section 3). In other words, they do this so they can ensure that he is acting in a manner consistent with their commands as manifested in law. A similar reason for investigating the executive branch is to gauge how efficiently and effectively the administration is governing. A President and a department might be gung-ho about a program, but still not run it very well, so the oversight authority can serve as a corrective to poor governance. When the legislature engages in oversight, it says, “We, the Congress, want to know what you, the President, are doing with the money we appropriated to you.” But oversight uncovers more than simply administrative inefficiency. Congress can unearth corruption and criminality when it investigates the executive branch. Whatever the reason, Congressional oversight is a powerful mechanism for fostering good governance by the administration.

In the first known example of Congressional oversight, President George Washington was rather indignant about Congress questioning him over his Administration’s treaty negotiations with the Creek Indians. Also, as we note in Surviving Inside Congress, the legislature decided “to flex its oversight muscle early, instructing the executive departments it had just created to report back to it on various matters under the Executive’s jurisdiction”.

Since the first Congress, the legislature’s oversight activities have not slackened. Congress has even established two committees to spearhead oversight initiatives. The Committee on Government Oversight and Reform is primarily responsible for this task in the House. The Committee website notes that it does produce bills on certain matters, but that is of secondary importance: “Our primary responsibility…is oversight of virtually everything the government does”. Likewise, its Senate counterpart, the Committee on Homeland Security and Governmental Affairs, lists “studying the efficiency, economy, and effectiveness of all agencies and departments of the Government” as one of its functions. Although these two committees are specifically engaged in oversight activities, every committee in both Chambers may actively review executive activities on the subject matters falling under its jurisdiction. Most major committees even have oversight subcommittees and hire investigative specialists for the task. Government oversight, then, is a responsibility of every Member of Congress in every Congress.

If all the Members of Congress did exercise all their oversight prerogatives, committees might be meeting 24 hours a day, seven days a week. That’s an exaggeration perhaps, but Congress has many tools at its disposal, including the power to subpoena witnesses. First and foremost, committees may conduct hearings and investigations, which are opportunities for lawmakers to invite (or compel, via subpoena) administration officials or other witnesses to testify about an issue. The terms hearing and investigation are very similar, but Oleszek notes they are often distinguished by using the former term to denote a meeting that is convened to gauge how well the administration is governing, but the latter has a negative connotation, used when the session is to see whether officials have engaged in illegal activities or whether they were grossly incompetent.

In hearings and investigations, Members of Congress take initiative in overseeing the government, but they have also empowered others to take on this role too. For instance, the government has established offices of inspectors general (IGs) in almost 70 federal departments or other bureaus. These officers are charged with investigating their agencies to improve efficiency and uncover criminal activity. Twice a year, the IGs must submit reports, including recommendations, to the heads of their organizations, who must then send them to Congress within a month. If an IG unearths something urgent, he must immediately alert his superior, who must then inform Congress within a week. In addition to these offices’ individual bodies, Congress has also established the Government Accountability Office (GAO), a whole agency dedicated to oversight. Its purpose is to “advise Congress and the heads of executive agencies about ways to make government more efficient, effective, ethical, equitable and responsive”. Committees may request that the GAO undertake an investigation, or legislation may require it; the head of the GAO, the Comptroller General, may also commission such projects. Congress can even compel the executive branch to participate in oversight activities by including, in authorizing legislation, provisions requiring that administration officials report back on progress on implementing the law.

Although Congress has established a number of ways to exercise its oversight authority, the legislature sometimes neglects to do so. When one party controls both the White House and one or both Chambers of Congress, legislators from the President’s party are generally less aggressive in fulfilling their supervisory duties – at least in public. Oversight concerns are more likely to be voiced in meetings or by private correspondence. As we note in Surviving Inside Congress, “family fights are not good politics”. Like many instances of self-interest, this happens under both parties. Before the 2010 election, the minority staff of the Oversight Committee issued a report, A Constitutional Obligation: Congressional Oversight of the Executive Branch, which extensively criticized Democrats for alleged inaction during the period of united government. “Congress’ chief watchdog committee has failed repeatedly to conduct meaningful and sustained investigations”, they write. On the flip side, the Democrats charged that the Republicans neglected oversight as well. “During the last five years [2001-2006], the Republican-controlled Congress has failed to meet this constitutional oversight responsibility. On issue after issue, the Congress has failed to conduct meaningful investigations of significant allegations of wrongdoing by the Bush Administration”, the Democratic minority staff wrote in a January 2006 report entitled Congressional Oversight of the Bush Administration.

Now that we are in a period of divided government, you can bet there will be significant investigations for the remainder of the 112th Congress. Republican Representative Darrell Issa, Chairman of the House Committee on Government Reform, began this session with guns blazing. After the election, there was a flurry of news articles and commentaries on Chairman Issa’s choices of subjects of investigations, but you could argue that he was not being entirely partisan. During an interview on CNN’s State of the Union, Issa argued that providing the President billions of dollars for dispersal, through the Troubled Asset Relief Program (TARP) and the American Recovery and Reinvestment Act of 2009 (the “stimulus bill” passed at the beginning of Obama’s term), has a “corrupting effect” on an administration. In the interview, when challenged that TARP was signed by Republican President George Bush, he maintained that the money should not have been provided to him either. (Chairman Issa voted against the legislation that created TARP.) Further, he also emphasized the role of the Oversight Committee in promoting government efficiency. “But remember the focus of our committee…has been consistently about looking for waste, fraud and abuse. That’s the vast majority of what we do”, he said.

Although Chairman Issa described the role of his Committee as ensuring government efficiency, one of his latest initiatives is not obviously related to maximizing the use of taxpayer dollars. Rather, he and his Senate counterparts have been examining the Department of Justice’s Operation Fast and Furious program – a foolhardy attempt on the part of the Obama Administration to discover the location of the leaders of Mexican drug cartels. In this program, government agents allowed firearms to “walk” to Mexico – to cross the southern border illegally – in the hope that they could trace them to drug lords. Not only was the government unable to keep tabs on at least 1,500 of these guns, but at least one was also linked to the death of American border patrol agent Brian Terry, whose murder prompted a public investigation of the program. Gaining intelligence that could lead to the capture and destruction of cartels that bring drugs into the United States and that have wreaked havoc in Mexico is, of course, a worthy goal and a legitimate government function – it’s just that those responsible did not consider the unintended consequences of this operation. At issue in the investigation is who is at fault for the repercussions associated with Operation Fast and Furious. Additionally, a Department of Justice official sent a letter to Senator Chuck Grassley (R-IA) that falsely claimed that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) attempted to stop illegally purchased guns from being taken to Mexico. Chairman Issa recently sent a letter to the official requiring that he release documentation so Congress might know whether the falsehood was unintentional or not.

It’s not clear how the Fast and Furious investigation will turn out. If it uncovers some gross flaw on the part of the administration, it’s a win for democracy. If not, the Obama Administration will accuse the investigators of partisanship – generally the last refuge of any administration being investigated and a common risk when different parties control Congress and the White House. Even if the Administration makes its case, most Americans really wouldn’t want to curtail Congress’ oversight powers, since we expect accountability from the Presidency. Congress, moreover, has been happy to foster executive transparency and efficiency by developing and deploying the various tools at its disposal. Without them, who knows what would happen? That’s the point: We’d have no idea, and that’s how cover-ups happen.

Work Consulted: Congressional Oversight: An Overview by Walter J. Oleszek, 22 February 2010, for Congressional Research Service

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

 

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