Empowering members to engage in bipartisan fact-finding has the potential to reinvigorate Congress’s oversight authority under the Constitution
Summary
Since 2019, the House Select Committee on the Modernization of Congress has developed a successful track record of passing bipartisan recommendations that are resulting in real changes to improve the way that Congress works. An October report by the Committee found that nearly two thirds of its recommendations have been “fully adopted or have seen meaningful progress towards full implementation.” In 2022, the Committee’s bipartisan work has the potential to yield lasting improvement to the way that Congress works.
In November, the Committee turned its attention to ways that Congress should strengthen its oversight capacity. The hearing highlighted common ground among members and expert witnesses about the importance of congressional fact-finding and bipartisan inquiries to improve government accountability.
As the Committee develops recommendations for ways to improve congressional oversight, one option would be to establish Committee rules or amend an existing statute to empower members to obtain information from executive agencies if an oversight letter is bipartisan and signed by a group of members.
For example, Congress could change committee rules or reform the current “Rule of Seven” statute to expand its existing authority to obtain information through oversight inquiries by groups of members of all committees, and by clarifying that agencies must answer bipartisan inquiries. Giving members of all committees this authority would encourage all members, in both the minority and majority parties, to engage in meaningful, fact-finding oversight. It would also create an incentive for members to pursue bipartisan inquiries, rather than partisan or “gotcha” oversight. The result of this reform would be to invigorate Congress’s fact-finding role and establish a new way for members to obtain information and establish common ground for future legislative reforms.
The Modernization Committee’s hearing on strengthening congressional oversight
In November, the Modernization Committee held a hearing on strengthening congressional oversight. “It’s our job as members of Congress to both allocate funding and to ensure that taxpayer funds are being used properly. Effective oversight is a goal shared by both parties and by the American people,” reasonsed Chair Derek Kilmer (D-WA).
“In order for members of Congress to serve as an effective check on the other branches of government and ensure we are serving the needs of the American people, we must have a firm understanding of what is going on across the federal government,” added Vice Chair William Timmons (R-SC).
Chair Kilmer announced that the Committee was “looking for ways to help make Congress stronger at ensuring the federal government is accountable to the folks we represent.”
The Committee heard from expert witnesses who provided recommendations for how Congress could strengthen its oversight capacity.
Professor Josh Chafetz of Georgetown University provided a history of Congress’s oversight responsibilities dating back to the beginning of the Republic and described the tools that Congress has developed to oversee the executive branch. But he warned that the Congress remains unable to effectively oversee the federal government:
“In service of this robust congressional authority to conduct oversight, discussed above, the chambers have developed a number of tools. But it has become increasingly apparent across the first three presidencies of the twenty-first century that those tools, as the chambers have chosen to use them, have left a significant hole in Congress’s oversight capacity. In particular, one question has arisen with increasing urgency: how can Congress force information from an executive branch that is unwilling to provide it? Any satisfying answer to this question must be sensitive not only to whether the information demanded is eventually provided to the chamber demanding it, but also to whether it is ultimately provided on a timeframe that is useful to that chamber.”
Chafetz argued that Congress should more effectively use its powers, including the power of the purse, to “maintain its proper role in our constitutional system.”
Anne Tindall, counsel at Protect Democracy, agreed that Congress’s oversight powers needed to be strengthened. “Administrations of both parties frequently have refused to accommodate congressional requests for information in good faith and worked to undermine Congress’s institutional authority to enforce those requests,” Tindall reasoned. She recommended that Congress strengthen its legal authorities for obtaining information from the executive branch and increase its capacity for conducting oversight such as by establishing a congressional Office of Legal Counsel and expanding access to security clearance so congressional staff can conduct oversight over classified matters.
Elise Bean, Director of the Levin Center and former Senate Permanent Subcommittee on Investigations (PSI) staff director, offered several specific recommendations for how Congress could strengthen its oversight capacity, such as establishing a process for congressional legal opinions, reforming Committee hearing and budget rules, encouraging bipartisan oversight training, and using bulk purchasing to expand access to document software tools. A focus of her testimony was highlighting the need for more bipartisan oversight investigations drawing on her years at PSI:
“The Senate Permanent Subcommittee on Investigation (PSI), where I worked for so many years, has a long tradition of bipartisan investigations, not only because our rules encourage them, but also because PSI leaders publicly and privately committed their staffs to joint investigations. Senator Levin, Senator Coburn, and many others did so, because they were strong believers that bipartisan investigations were superior to partisan inquiries. They viewed investigations conducted by people holding similar views to be equivalent to acting in an echo chamber in which staffers reinforce their preconceptions and rarely think creatively. In contrast, investigations conducted by staffers holding fundamentally different world views lead to those investigators asking more questions, looking closely at more facts, challenging each other, and engaging in more conversations about what really happened and why. While the resulting investigative process isn’t quick or easy, it usually produces findings that are more accurate, thorough, thoughtful, and credible. That type of rich bipartisan experience is possible only when the chair and ranking member of the investigating body direct their staffs to work together to reach a consensus on the facts.”
To improve bipartisan oversight, she recommended that Committee chairs publicly commit to bipartisan oversight, hold fewer hearings on less partisan topics, and encourage social interaction among staff to foster a culture of bipartisanship.
The issue of partisanship and “gotcha oversight”
Elise’s testimony addressed a key theme that the Chair and Vice Chair discussed in their opening statements and questioning. Vice Chair Timmons pointed out that, due to increasing partisanship, congressional oversight (and specifically the activity of the Oversight Committee) can become a “bomb throwing exercise” depending on which political party controls the White House and executive branch. Chair Kilmer described this activity as “gotcha oversight” where the opposition party in Congress focuses its oversight activities on “trying to get headlines, trying to embarrass the administration politically.”
Chair Kilmer and Vice Chair Timmons expressed interest in finding ways to strengthen Congress’s ability to do bipartisan oversight, which Kilmer described as “the day-to-day sort of oversight of the administrative state, where you are trying to make sure that policy decisions that have been made are efficient and effective, you are trying to make sure taxpayer's dollars are being spent appropriately.”
The Modernization Committee’s successful track record passing bipartisan recommendations that are acted upon by the House of Representatives highlights the real opportunity for potential progress towards increasing Congress’s capacity for effective oversight, and particularly bipartisan oversight, during the remainder of the 117th Congress. The Select Committee should consider passing recommendations based on the three expert witnesses compelling arguments and suggestions for legal, administrative, and cultural reforms to improve the Legislative Branch’s ability to execute this important responsibility.
Another option that the Committee could consider would be to strengthen lawmakers’ statutory authorities to conduct oversight or modify Committee rules to encourage bipartisan oversight. Updating the so-called “Rule of Seven” statute or amending Committee rules to give more members the power to conduct bipartisan oversight should be considered.
Background on the “Rule of Seven” statute
In its “Congressional Oversight Manual,” the Congressional Research Service explains that individual members of Congress have the authority to conduct oversight, but that these powers are generally limited due to their inability to enforce request for information:
“Individual members of a legislative body may conduct investigatory oversight on their own initiative. However, absent the support of the body or a committee, such an investigation will generally not be supported by the same compulsory legal authorities that are available during committee investigations, including the power to issue subpoenas.”
In other words, rank and file members can try to conduct oversight. But their requests for information will not have the same force of law as a Committee Chair’s since it cannot be enforced by a subpoena.
As a former congressional staffer who worked on oversight, I can attest that Members often struggle to get responses to their request for information if they do not have the Chair’s support. Often oversight inquiries were unanswered for months. But information would be provided within hours as soon as a Chair’s signature was added to a letter to the department or agency. In the Senate, Members can resort to using other procedural tactics, such as holding legislation or delaying floor consideration of executive branch nominations, to attempt to force the executive branch to answer requests for information. (These actions, of course, have secondary effects, such as preventing the administration from establishing political leadership within agencies, but at least offer lawmakers a tool to attempt to oversee the government.) But no such options are available to individual House members.
However, Congress has established a law that provides groups or members of the House Oversight and the Senate Homeland Security and Governmental Affairs Committee to obtain information if a group of members of both bodies request information. CRS explains:
“Another potential tool for minority or small group participation in oversight is 5 U.S.C. § 2954, commonly known as the “rule of seven.” Under the statute, seven members of the House Oversight and Reform Committee or five members of the Senate Committee on Homeland Security and Governmental Affairs can request information from executive agencies on matters within their committee jurisdictions, which the agencies “shall” provide. While the statute confers a right of access upon this group of Members, it is not clear whether the Members—in the case of an agency refusal—can enforce their request in the courts. A recent D.C. Circuit decision has recognized that Members who invoke § 2954 have standing to enforce their right, but whether they also possess the necessary cause of action for a court to entertain an enforcement lawsuit remains the subject of litigation.”
The D.C. Circuit’s December 2020 ruling suggests that this legal authority may become a more useful tool for congressional oversight moving forward. In the meantime, the Modernization Committee could consider recommendations to strengthen or extend this authority to more members to encourage bipartisan oversight to improve government accountability.
How Congress could encourage fact finding by empowering bipartisan oversight
One option would be to establish committee rules to empower members of all committees to obtain information from executive agencies if a letter is bipartisan and signed by a set number of members (such as seven in the House and five in the Senate, consistent with the “Rule of Seven” statute). Congress could also update and expand the current “Rule of Seven” statute to cover members of all committees, perhaps adding a requirement that federal agencies must answer bipartisan inquiries. Committee chairs could also announce that they would join such bipartisan oversight requests to encourage constructive, fact-finding oversight.
Such reforms would give more members the ability to execute Congress’s oversight role under the Constitution. Importantly, reforming statute or committee rules in this manner would change the incentives for members to pursue oversight and investigations in a bipartisan manner. In this way, more congressional inquiries would naturally reflect the perspective of both political parties, and oversight requests would be scoped in a reasonable manner rather than simply to generate headlines.
While partisan inquiries would surely continue, lawmakers who do not attempt to attract bipartisan support for an oversight request would naturally be open to questions about why they did not attempt to build a consensus about the need for information if they were serious about forcing an executive branch response. Such a statutory or rule change would also give rank and file members of both parties greater ability to engage in oversight. Members of a majority party who are not committee chairs, for example, would have new powers to engage in constructive oversight by joining and shaping inquiries started by the minority party by cosigning letters.
Conclusion
During an era of increasing partisan polarization on Capitol Hill, the Modernization Committee’s November hearing about strengthening congressional oversight was an encouraging development. Led by Chair Kilmer and Vice Chair Timmons, the Select Committee is focused on making Congress work better to fulfill its Article I responsibilities under the Constitution. The expert witnesses offered compelling recommendations for ways that Congress can improve its ability to hold the executive branch accountable to the American people. Establishing new and stronger mechanisms for lawmakers to obtain information from federal agencies through bipartisan oversight should also be among the Select Committee’s future recommendations.
