RULES OF THE ROAD LESS TRAVELED
REMARKS OF DONALD R. WOLFENSBERGER
DIRECTOR, THE CONGRESS PROJECT
WOODROW WILSON CENTER
BEFORE THE CRS STAFF OVERSIGHT WORKSHOP
UNITED STATES HOUSE OF REPRESENTATIVES
THURSDAY, OCTOBER 28, 2004
I would like to commend Rules Committee Chairman David Dreier for convening this bipartisan House workshop on congressional oversight and CRS for putting it together. I vividly recall my first CRS oversight workshop back in December of 1978 when I was legislative director for Congressman John Anderson and about to take over as the minority counsel of a subcommittee of the House Rules Committee. For me that session was part revelation and part motivational seminar. I remember coming away from that workshop thinking: "Gee, I can do that; in fact, I WANT to do that."
But I was left to wonder why most Members of Congress are turned-off about doing regular oversight? I came up with several reasons. For one thing, they didn't attend the oversight workshop. For another, the workshop tended to show us the more glamorous side of it. We were regaled with the oversight war stories in which the good guys triumphed over the big, bad bureaucracy after locating a smoking memo buried deep in the bureaucracy files.
The reality for most Members, on the other hand, is that the most effective oversight is not all that exciting. In fact, it can actually be tedious, time-consuming and even boring, with no obvious political payoff at the end of the line. This lack of member interest in participating in oversight hearings is reflected in the results of a 1993 survey of House and Senate Members conducted by the Joint Committee on the Organization of Congress. The survey revealed that 72 percent of the membes spent only a little time or almost no time on oversight activities. Nearly 50 percent of the same respondents did not choose oversight as one of the top five activities (out of 12 choices) on which they would like to spend more time. Only 22 percent of the respondents listed oversight as their first or second choice.
That's why they send staff out to do the preliminary digging and panning for gold – sifting through tons of worthless bureaucratic rocks for hours on end in hopes of turning up that one nugget that will make them rich in political rewards.
But this kind of work is not what most Members came to Washington to do. They came to tackle new policy problems and make new laws, and not spend their time investigating past mistakes and bad laws–let alone stepping on the toes of those special interests benefitting from them. Consequently, oversight is, and has been through the ages, one of Congress's biggest oversights in the sense of being an ignored or overlooked responsibility.
For that reason, I have chosen to entitle my remarks: "Congressional Oversight: Rules of the Road Less Taken." You may recognize that latter phrase from the Robert Frost poem, "The Road Less Taken," the last three lines of which are as follows:
Two roads diverged in a wood, and I –
I took the one less traveled by,
And that has made all the difference.
Let me cite a well known political scientist as to why taking the road less traveled -- in this case the oversight road – can and should make all the difference. In his words:
It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents.
And he continues:
Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.
And yet, the political scientist adds, Congress is too diligent about legislation and not diligent enough about its oversight and informing functions. The political scientist who penned those eloquent observations was Woodrow Wilson, writing in his classic doctoral treatise, Congressional Government, published in 1885. So charges of lax oversight by Congress are nothing new.
It should seem obvious that Congress's oversight authority is integral to and inherent in its constitutional powers to make laws and appropriate money for the operation of government. It asserted that right as early as 1792 in its inquiry into the Indian massacre of U.S. troops under General St. Clair. The Supreme Court affirmed Congress's investigative powers in the 1927 case, McGrain v. Daugherty, when it said, and I quote: "The power of inquiry –with process to enforce it–is an essential and appropriate auxiliary to the legislative function....A legislative body cannot legislate wisely or effectively in the absence of information respecting conditions the legislation is intended to affect or change...."
So, why then was it necessary for the House and Senate after World War II to begin adopting oversight rules that only seem to reiterate the obvious? It seems to me there are two reasons a system oversight rules and laws began to develop in the mid-twentieth century. The first was to make clear to those who may be the subject of oversight, namely, the Executive Branch, just what to expect, both in terms of their rights and duties and Congress's responsibilities. Keep in mind that during World War II, the Federal Government grew by leaps and bounds, and most of it was not dismantled at the end of the war. The challenge to Congress was how to get its arms around this vast new bureaucracy. It was a daunting task indeed. The new oversight rules were in effect a letter of intent, posted on a big oversight road sign, that read in big bold letters: "Yield, bureaucracy: here we come!" Or maybe it was intended to read quite simply: "Caution: Congress at Work.
The second reason for such rules, quite frankly, was to remind Congress itself just what was now being expected of it. The rules were designed to push, prod, pull, and pummel the Congress into doing oversight. The rules were a directional road sign for Congress pointing down that road less traveled and urging members to take it if they wished to make a difference.
I don't care whether you read the reports of the Joint Committees on the Organization of Congress in 1945, 1965, or 1993, or any number of House or Senate select committees reform reports in between. They all say essentially the same thing: Congress has been doing a lousy job of overseeing the executive branch, it must do better, and so here are a few new rules, procedures, resources, and devices to help it do a better job.
The first modern statutory formulation of oversight didn't occur until the 1946 Legislative Reorganization Act which charged each standing committee of Congress with exercising a "continuous watchfulness" over the execution of the laws by the executive.
That was changed in the 1970 Legislative Reorganization Act to what the Rules Committee report termed "a more appropriate concept" which was to "review and study on a continuing basis" the laws, agencies and entities of government charged with carrying them out. In other words, the emphasis was on a more pro-active rather than merely passive oversight role.
This is the language currently contained in House rule X, clause 2 under "general oversight responsibilities" which I have included in your hand-out. The Senate has a similar rule from 1970.
The 1970 Act also required for the first time that committees file biennial activity reports at the end of each Congress that summarized both their legislative and oversight activities.
That was further enhanced in the 1974 House Committee Reform Amendments that required committees to discuss their oversight plans at the beginning of each Congress with the Government Operations Committee which would then publish them. That was deleted in 1987 because it had become a rather meaningless exercise in which the staff simply gave the chairman the same list of jurisdictional responsibilities rather than consciously develop a more selective oversight agenda.
However, the idea was revived and strengthened at the beginning of the 104th Congress in 1995 by requiring that committees formally adopt their oversight plans at the beginning of the Congress and submit them to what are now the House Administration and Government Reform committees no later than February 15. The Government Reform Committee then publishes them by March 31st after consultation with the bipartisan leadership to ensure maximum coordination.
Moreover, new requirements were included for making committees account for these plans in a separate section of their biennial activity reports at the end of each Congress, along with any additional oversight activities not listed on their original plans.
The 1974 committee reform amendments also originally called for each committee to establish a separate oversight subcommittee; but that was watered down by a Democratic Caucus substitute that alternatively allowed committees to exercise oversight through existing legislative subcommittees. However, at the beginning of the 106th Congress, in 1999, committees were encouraged to create a separate oversight subcommittee by not counting it against their five-subcommitee limit.
Yet, by my count today only four House committees have oversight subcommittees compared to 11 committees in the 103rd Congress. Part of the reason for the drop in oversight subcommittees was the new Republican majority's mandatory one-third cut in committee staff in 1995, from 1,800 to less than 12-hundred. Part was due to the five subcommittee limit that eliminated 32 subcommittees, from 118 down to 86.
The 1974 committee reform amendments also added special and additional oversight authorities and responsibilities for specified committees outside of their legislative jurisdiction. Moreover, the ‘74 resolution charged committees with reviewing tax policies that affect subjects within their jurisdiction.
Summaries of Government Reform Committee oversight findings and recommendations are to be included in other committees' reports if relevant to the bill involved. I have yet to see this happen, but I would be happy to stand corrected.
Moreover, the 1974 amendments charged committees with conducting foresight as well as oversight. To date, though, I have not seen a committee foresight report. Something to look forward to, I guess.... at some distant point in the future.
The permanent investigative authority for all committees contained at the beginning of House Rule XI was also added in the 1974 amendments. Prior to that, only Appropriations, Budget, Government Operations, Internal Security, and Standards had such investigative authority. What that meant was that other committees had to obtain special investigative authorities such as subpoena powers and travel authority through resolutions reported by the Rules Committee and adopted by the House at the beginning of each Congress.
Moreover, in 1977 subpoena authority was extended to subcommittees and delegated to full committee chairmen if a committee's rules provide for such delegation.
The investigative committee hearing procedures, sometimes referred to as "the witness bill of rights," and now contained in Rule XI, clause 2(k), were first adopted back in 1955 as a result of numerous abuses of witnesses that occurred during the McCarthy era. At the same time, the quorum requirement for hearings was set at not less than two members to avoid so-called one-member investigations–again something that had become an embarrassment to Congress.
The right of the minority to call its own witnesses at any hearing, whether investigative, legislative or general oversight in nature, was part of the 1970 Legislative Reorganization Act, as was the right of any committee member to file minority, additional or supplemental views on any committee report. It not only applies to legislative and oversight reports, but also to committee activity reports at the end of a Congress, and to a committee's budget views and estimates submitted to the Budget Committee.
Finally, a rule used only sparingly in recent times, but still important to individual members, is the rule governing resolutions of inquiry. These are simple House resolutions in which any Member may request factual information from the President or a cabinet department head.
The rule dates back to 1820, though the right to request information from the executive goes back to the beginning of our government. Such resolutions should be worded so as to "request" information of the President; but they may "demand" it from a cabinet secretary.
A committee is given 14 legislative days to report back to the House on the disposition of the request. If it has not gotten voluntary compliance from the President or cabinet officer, it reports the resolution and asks for a House vote on it. If it does not report within 14 days, then any House Member may offer a motion to discharge. The discharge motion is considered without debate. If it is adopted, then the House proceeds to one hour of debate on the resolution of inquiry.
That concludes my brief survey of House oversight rules. Mort Rosenberg will get into the details of how these rules and various legal authorities operate in the real world. Let me simply conclude by saying that no set of rules, no matter how artfully drafted and well intentioned will produce effective oversight if the will is not there on the part of the committee and subcommittee chairmen and their members to do the nitty-gritty work involved.
Put another way, you can lead a committee horse to the oversight trough with sweetly worded rule enticements , but you can't make it drink. Congress has been very strong on the rhetoric of oversight over the years, but often comes up short on the delivery of effective oversight results.
The exceptions, of course, are the more sensational scandal investigations that have made many a political reputation including those of Joe McCarthy, Estes Keefauver, Richard Nixon and Sam Ervin. But investigations are one small subcategory of oversight.
Programmatic oversight, on the other hand, is a lot more difficult and the payoffs are uncertain in the short term. In the long term though, as Wilson put it, oversight is a key component not only in ensuring that the government is running effectively and efficiently, but that the public is properly informed by the Congress of how well its tax dollars are being spent for its benefit. We are told by some political scientists that members are only interested in re-election, policy influence, and institutional power. The trick, therefore, is to show them how, through good oversight they can accomplish one or more of those goals.
If Congress cannot get a proper handle on our vast governmental bureaucracy, then public confidence in government, including the Congress, is bound to decline even further. That in itself should be a compelling incentive for the Congress to do its job properly since it relates directly to that re-election imperative that drives most members. Now it's up to you to convince your members that the road less taken can make a difference--both for them, the institution, and the country. Good luck, and thank you.
# # #
1. Joint Committee on the Organization of Congress (One Hundred Third Congress, First Session), "Organization of the Congress, Final Report" (H. Rept. No. 103-413, Vol. II), December 1993, 278, 285.
2. Woodrow Wilson, Congressional Government (Baltimore: Johns Hopkins University Press, 1885; 1956 Meridian Books ed.),
3. While Woodrow Wilson was a great believer in general oversight of government entities and programs, he was not supportive of what he called Congress's "exercise of semi-judicial powers of investigation" because "the limitations and insufficiency" of this authority "are manifest." He explained that Congress launches these "special, irksome, ungracious investigations" from time to time, "in its spasmodic efforts to dispel or confirm suspicions of malfeasance or of wanton corruption." However, the investigations "do not afford more than a glimpse of the inside of a small province of federal administration." Besides, "Hostile or designing officials can always hold it [Congress] at arm's length by devious evasions and concealments." Such investigations can "violently disturb" but not often "fathom the waters of the sea in which the bigger fish of the civil service swim and feed." (Congressional Government, 179-80).