Modernization of Congress Series
Early this year, the House Modernization Committee held a hearing focused on restoring the capacity of Congress to meet the needs of the American people. As part of that effort, the Committee solicited information on how Congress could improve its oversight function. The Levin Center at Wayne Law, created to honor the bipartisan oversight legacy of Senator Carl Levin, was invited to testify.
Power to Investigate
The power to investigate is key to Congress’ ability to inform the public, legislate wisely, and carry out other duties assigned to it by the Constitution. The Supreme Court described the role of congressional oversight as follows:
“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. 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.”
The Supreme Court also stated:
Without information, Congress would be shooting in the dark, unable to legislate “wisely or effectively.”
Along the same lines, an earlier federal District Court opinion had this to say:
“[W]hen a committee of Congress seeks testimony and records by issuing a valid subpoena in the context of a duly authorized investigation, it has the Constitution’s blessing, and ultimately, it is acting not in its own interest, but for the benefit of the People of the United States. … If there is fraud or abuse or waste or corruption in the federal government, it is the constitutional duty of Congress to find the facts and, as necessary, take corrective action.”
Oversight is not only a constitutional duty, it can, when properly carried out, contribute to solving problems and bridging political divides. Unlike the Executive Branch which operates under the command of a single leader, Congress has multiple leaders of equal standing. To advance any issue, Members of Congress must find a way to reach agreement on key facts and what to do about them. Oversight inquiries offer the opportunity to do just that.
Moreover, when conducted with respect for different points of view and a commitment to uncovering what really happened, oversight investigations can actually strengthen relationships between members of the two parties. It does so not only by encouraging members to work together and exchange views, but also by helping them develop a mutual understanding of the issues at stake. That bipartisan process is especially effective when the oversight investigation targets areas of shared concern like cybersecurity, terrorism, consumer fraud, health care innovation, infrastructure needs, or disaster recovery.
Bipartisan, fact-based oversight, when undertaken in good faith, offers a concrete mechanism for Members and staff to gather information, build cross-party relationships, and help in the healing of Congress.
It is also important to note that oversight investigations provide a key lens through which the public views Congress. Highly partisan hearings or hearings that expose poor preparation by Members can damage public confidence in the institution. Partisan barbs in a committee room can damage both parties while deepening public cynicism about elected officials. In contrast, bipartisan hearings that focus on problems of real concern, generate useful factual information, and demonstrate Member competence and cooperation can strengthen public confidence in Congress. In short, to improve its standing with the public, Congress needs to improve its oversight hearings.
The quality of Congressional oversight has varied dramatically over time and across the House and Senate. The reasons are many. First is the problem of personnel. Members rely to a large extent on the work of committee staff in conducting oversight, but Congressional staff have been significantly reduced in the past 25 years. Below-market pay and minimal training have resulted in high turnover and staff with little experience. Inadequate technical expertise within committees and personal offices often makes it difficult for Members to investigate complex issues.
A second problem is the absence of Congress-wide oversight standards and norms that lead to fragmentation and division among and within committees. Partisan hearing topics often lead to unproductive sessions and estranged Members and staff. Five-minute limits on Member questions during hearings make it hard to obtain meaningful information, leading to frustration and disenchantment with oversight hearings. A lack of social interaction means many Members and staff don’t know each other well, making it difficult for them to work together.
While the problems plaguing oversight efforts are significant, there is also a community of organizations committed to strengthening Congressional oversight. In addition to the Levin Center, they include the Project on Government Oversight (POGO), the Lugar Center, American Oversight, and more. These organizations have identified various measures that could be taken – some easier, some harder – that hold great promise for improving the state of oversight in Congress.
Bipartisan Oversight Proposals
The Lincoln Network, R Street Institute, and others have laid out a number of proposals to address Congress’ pressing staff problems. These recommendations include increasing Legislative Branch appropriations, improving staff compensation, lifting staffing limits, expanding committee personnel, providing more training, and increasing staff expertise on technology and science issues, all of which would strengthen Congress as a whole as well as its ability to conduct oversight.
Additional bipartisan proposals, focused on Congressional procedures and practices, have been submitted to the Modernization Committee by four organizations committed to improving Congressional oversight: the Levin Center, the Lugar Center, POGO, and American Oversight. Their proposals follow.
(1) Issue Congressional legal opinions on oversight matters.
Perhaps most important is their recommendation that Congress develop a process for issuing bipartisan legal opinions on oversight issues. For decades, the Department of Justice (DOJ) Office of Legal Counsel (OLC) has been issuing official legal opinions that provide guidance to Executive Branch agencies on how to respond to requests for information from Congress. It is no surprise that the OLC opinions have invariably favored the Executive Branch over the Legislative Branch, one stark example being an OLC opinion that White House aides are immune to Congressional subpoenas, the exact opposite conclusion of the courts that have ruled on the issue. DOJ has used its OLC opinions not only to control how federal agencies respond to Congress, but also to persuade courts to favor the Executive Branch over the Legislative Branch.
Congress has for too long allowed those DOJ OLC opinions to remain unanswered. Neither the House nor Senate has an equivalent process or set of official legal opinions to provide guidance to Members of Congress, committees, federal agencies, or the courts on matters related to oversight. If Congress were to establish such a process and use it to issue thoughtful, well-supported, and bipartisan legal opinions on oversight matters, Congress could help establish oversight norms both within and outside of the Legislative Branch, increase uniformity among Congressional committees, educate Members, staff, and agencies, and advance oversight effectiveness. They would also strengthen the hand of Congress when forced to go to the courts.
(2) Require Joint Compensation of Committee Clerks.
A second bipartisan proposal is more mundane. It has to do with administrative staff, such as committee and subcommittee clerks, who provide support for Congressional oversight investigations. These are the unsung staff who send out the subpoenas, log in the documents, type up reports, compile hearing records, and archive investigative materials.
Currently, on some House committees and subcommittees, the majority and minority staffs each hire their own administrative personnel, meaning there are often two clerks, hired on a partisan basis, to handle similar administrative duties. In contrast, in the Senate, committee and subcommittee chairs and ranking minority members jointly hire their administrative personnel and typically split their compensation on a 50-50 basis. The Senate approach has strengthened its committees by saving them money (through hiring fewer clerks) and encouraging a bipartisan, even-handed administration of oversight activities.
Senate administrative personnel know they are paid by both parties and know they are supposed to answer to both sides in an even-handed way. House administrative personnel, when hired on a partisan basis, know they answer to only one party. It is no surprise when partisanship follows where bipartisanship ought to prevail.
The bipartisan recommendation from the four organizations is to require the majority and minority on each House committee and subcommittee to jointly hire and split on a 50-50 basis the compensation paid to their administrative staff, including clerks, who support oversight investigations and hearings. The resulting savings in compensation costs could then finance other improvements.
(3) Encourage Longer Periods for Questioning Witnesses.
The third bipartisan recommendation focuses on investigative hearings. It recommends formally amending House rules to encourage a committee or subcommittee chair and ranking member, at the beginning of each witness panel, to question the panel for a longer period than the five minutes typical in most House hearings. This relatively easy procedural change has the potential to deliver better outcomes for both committee members and observers of House hearings.
During the House Intelligence Committee impeachment hearings, for example, both the majority and minority parties were given a 45-minute block of time at the beginning of each session. The result was a more coherent and meaningful exchange between the committee and its witnesses, on both sides of the aisle. The longer periods enabled committee leadership to ask a series of questions to clarify the testimony provided and to follow through on the points they wanted to make. The longer periods also made it easier to establish facts, get into important details, and prevent witnesses from engaging in tactics to avoid answering questions. The longer periods also provided time for committee counsel to participate in the questioning, increasing the inquiry’s professionalism.
The five-minute question periods now used in most House hearings too often diminish the gravity and coherence of the session, and too often leave Members of Congress struggling to get answers to their questions and, at times, appearing rude or insensitive to the witnesses. Short-duration questioning periods at the beginning of a hearing can also lead to abrupt changes in topic that can make the hearing confusing or even chaotic. Those types of exchanges are not conducive to public respect for the institution. Allowing longer questioning periods at the beginning of an oversight hearing or at the start of each panel of witnesses is one way to alleviate those problems.
(4) Require Committee Budgets to Better Reflect House Composition.
The final bipartisan recommendation is a big one. It stems from the reality that the country is politically divided, and voters are producing narrow majorities in the House and Senate in the range of 55, 52, or 51 percent. It appears that, for the foreseeable future, those types of narrow margins could flip the majority party in a subsequent election, and flip it back again in the following election, as has happened in the Senate.
Despite that political reality, the House has chosen to continue to allocate two-thirds of committee funding to the majority party and only one-third to the minority. Today, that means a House majority of 51% gets 67% of the available committee funding. While that funding split may look good to the majority party today, it won’t if a small political shift leads to a different House majority tomorrow. The current approach threatens dramatic funding changes and abrupt staffing shifts that may lead to losing staff with important institutional expertise, including staff experienced in oversight.
The Senate, in contrast, long ago replaced the one third-two thirds funding split between the parties with a committee allocation process that more closely reflects the actual composition of the majority and minority parties in the Senate. Under the current Senate approach, committees first take care of shared expenses, such as administrative personnel whose compensation is typically split on a 50-50 basis. The remaining committee funds are then designated as the “majority and minority salary baseline.” The majority staff receives 10% of that baseline to take care of other administrative expenses. The remaining 90% of the baseline is then divided according to the percentage of seats attributed to each party. For example, in the 116th Congress, Republican Senate committee staff receives 53% of the baseline, while Democratic staff receives 47%. In addition, the Senate imposes an outer bound limit on the division of funding, limiting the majority committee staff to receiving no more than 60% of the relevant baseline and the minority from receiving no less than 40%. The Senate also permits committees to adopt a different allocation of funds by agreement of the chair and ranking member.
The resulting division of committee funds more fairly reflects the composition of the Senate and is generally less disruptive to committees when majorities shift, including committees exercising oversight authority. To reap the same benefits, the House should consider a similar committee funding allocation process.
Levin Center Proposals
Those four bipartisan proposals don’t, of course, cover the universe of ways to strengthen Congressional oversight. In testimony submitted to the House Modernization Committee, the Levin Center offered several more options.
–Public commitment to bipartisanship. First is the recommendation that the chair and ranking member of a committee conducting an oversight investigation make a public commitment to a bipartisan investigation, including instructing committee staff on both sides of the aisle to work together in good faith to reach consensus on the facts. The Senate Permanent Subcommittee on Investigation (PSI), where I worked for many years, was led by Senators who repeatedly committed their staffs, publicly and privately, to joint investigations. Leaders like Senator Coburn, Senator Levin, and others did so, because they believed that bipartisan investigations were superior to partisan inquiries.
That was my experience as well. I found that conducting an investigation with people holding similar views to my own was like investigating in an echo chamber. The staffers rarely challenged each other and often let issues slide. Investigating with people who held fundamentally different views, however, inevitably led to the investigators asking more questions, challenging each other on those facts, and engaging in more conversations about what really happened and why. The resulting fact-finding process wasn’t quick or easy, but with good faith interactions it usually produced findings that were more accurate, thorough, thoughtful, and credible.
That type of constructive, bipartisan dialogue is possible only when the chair and ranking member of the investigating committee direct their staffs to work out their differences.
–Bipartisan investigative techniques. Making a public commitment to bipartisanship is, of course, only the beginning. Members and staff also have to figure out how to investigate together so that their understanding of the facts matures together.
A variety of investigative techniques can help. They include requiring both sides of the aisle to attend joint briefings from experts and targets to ensure everyone hears the same information at the same time. The same reasoning supports requiring both sides to attend key interviews together. At PSI, Republican and Democratic staff even shared their questions in writing before an interview so that everyone would know what questions would be asked in what order. Joint questions helped ensure that each side understood the issues of interest to the other and all key topics would be covered.
Once an interview concludes, another helpful technique is to produce a post-interview summary with input from both sides. A joint interview summary helps ensure the two sides have the same understanding of what was said. Any disagreements should be resolved as soon as possible by going back to the key witness or lawyer.
Still another technique is to require committee staff to issue only joint press releases, with at least one quote from each side. Drafting a joint press release helps uncover and resolve differences between the two sides. It may require multiple rounds of revisions, but common ground can be found if the committee leaders insist on it. A similar technique is to draft joint investigative reports to try to reach consensus on the facts or at least narrow any differences.
Those types of joint investigative techniques aren’t easy and require a lot of time to put into practice. That’s why bipartisan investigations typically take a lot longer than partisan inquiries. At PSI, we typically held only three to four hearings per year, because that’s all we could manage on a bipartisan basis. But when we did hold hearings, they were organized, coherent, reflected both sides of the aisle, and minimized differences which meant they often had a powerful impact.
–Fewer hearings with less partisan issues. Another Levin Center recommendation is that committees and subcommittees consider holding fewer hearings. Less is more, when a committee does the hard work of conducting a bipartisan inquiry that produces at least a partial consensus on the facts, instead of holding multiple hearings on partisan issues with minimal cooperation between the two sides. Fewer hearings would also enable Members and staff to gain more familiarity with key documents and witnesses and build a shared understanding of the problems. A related suggestion is that committees spend more time on topics that appeal to both parties and shy away from issues that exacerbate party divisions. Congress’ public ratings are currently painfully low; fewer hearings with more substance and less infighting could begin to restore public confidence.
–More training. The bipartisan investigative techniques advocated here often don’t come naturally to Congressional staffers or Members of Congress, and so may require training and support. The Levin Center, together with the Lugar Center and POGO, hold regular training sessions called “boot camps” to hone the skills needed to conduct bipartisan, fact-based inquiries. Our two-day boot camps combine staff from the House and Senate, and from both parties, in investigative exercises that have trained more than 200 staffers to date.
In recent years, we’ve received over 100 applications for the 25 spots available in each boot camp. Much more can and should be done to strengthen skill sets, especially bipartisan opportunities that enable staff to discover they can work together.
One hopeful sign is that when we ask attendees to evaluate our training sessions, almost to a person they rate the opportunity to work with staff across the aisle as one of the most valuable aspects of the training. Staff from both sides of the aisle have shown a consistent willingness and even enthusiasm to work with their counterparts.
Similar considerations apply to Members of Congress assigned to oversight committees. While some may have conducted oversight on the state or local level, or can draw on prosecutorial or other legal experiences, for many Members oversight investigations require a new skill set. Even a short oversight seminar at a new Members orientation session could help – especially if that seminar were bipartisan.
–Increased social interaction. A final Levin Center recommendation involves social interaction. During the Levin years at PSI, staff held a social gathering after work every few weeks. Republican and Democratic staffers sat down together, sometimes joined by Senator Levin. No discussion of work was allowed, only PSI lore, funny stories, and the chit-chat that occurs among staffers working together. In addition, after most hearings, we had a bipartisan staff dinner at a local restaurant, usually with Senator Levin and his wife, in which we celebrated the investigation’s high and low points. In later years, we also took a photograph of the bipartisan staff that worked on each investigation, so that everyone could remember how they worked together. Those social events and photographs may have done more to knit together PSI’s bipartisan fabric than almost anything else. They helped build bipartisan trust.
Regular social interaction would also benefit Members serving on oversight committees. It is only when every member of an oversight team begins to see every other member as a trusted partner that bipartisan, fact-based, high-quality oversight flourishes.
This list of ways to strengthen Congress’ capacity to conduct effective oversight is not exhaustive. Another set of important recommendations, for example, involves strengthening Congress’ ability to obtain information from federal agencies and to enforce congressional subpoenas. Those and other improvements first require, however, that Congress acknowledge the urgency and promise of better oversight. As Senator Levin once put it: “You can’t get good government without good oversight.”
Jim Townsend is the director of the Levin Center at Wayne Law. He has also served as a congressional staffer and Michigan state legislator. Elise J. Bean is director of the Levin Center’s Washington Office. Before that, for nearly 30 years, she worked as an investigator for Sen. Carl Levin.