About the Author: Robert Evans is a second year law student at American University- Washington College of Law. Robert graduated from Lehigh University and hopes to work on the Hill or in a government agency after graduating law school.
Congressional oversight investigations can be bipartisan or partisan inquiries. In more partisan inquiries, the constitutional functionality is frequently undermined and afflicted by the committee or subcommittee chair issuing information requests supported by majority members and ignoring information requests supported by minority members. However, minority party members should not be precluded from issuing information requests during an investigation by the committee or subcommittee chair solely because the inquiry is partisan.
In their article “Defining Congressional Oversight and Measuring Its Effectiveness,” Carl Levin and Elise J. Bean lay out thoughtful criteria to approach this initiative of measuring the effectiveness of congressional oversight. Their criteria are comprised of four potential measures: (1) measuring the quality of an investigation; (2) measuring bipartisanship; (3) measuring credibility; and (4) measuring policy impacts. Along with these criteria, Levin and Bean enumerate a series of hypothetical questions that accompany each criterion and serve as potential markers and factors to measure that quality of the investigation. However, their criteria are neither justified nor tested. As Levin and Bean conceded, all four potential criteria could benefit from further analysis regarding “ . . . their theoretical and practical underpinnings, the factors going into the measurements, the extent to which the criteria encourage fact-based, bipartisan, high-quality oversight investigations, and the extent to which they would enhance public confidence in Congress and in the U.S. government as a whole.”[1]
Further, Levin and Bean assert that effectiveness in congressional oversight efforts can only be achieved in bipartisan investigations, implying that all partisan inquiries are at least somewhat ineffective. Levin’s and Bean’s questions regarding measuring bipartisanship should be secondary to ensuring the issuance of minority party information requests in partisan investigations. Additionally, the current framework for congressional oversight investigations should not be such that bipartisan inquiries are the only inquiries that are effective. While it would be ideal, consensus between the majority and minority on any number of issues during the inquiry is not a realistic expectation in the current political landscape and should not be required for congressional oversight efficacy. Rather, partisan congressional investigations are an inevitability and, if supported by subpoenas, may be more effective than any bipartisan investigation.
When minority Members aim to issue information requests without the backing of subpoenas in partisan investigations, they do so without the ability to enforce those requests. Thus, they frequently end up without the information they believe is critical for understanding the facts and examining the issues.[2] This usually produces (1) an incomplete inquiry (especially if the congressional majority and Executive Branch are under the control of the same party) and (2) partisan division that inevitably erodes the public’s confidence in both Congress and the investigation at hand.[3]
The U.S. Department of Justice’s Office of Legal Counsel (OLC) only made matters worse for minority party Members.[4] In 2017, the OLC delivered a legal opinion to the Office of White House Counsel in which they opined that it was not necessary for executive branch agencies to cooperate with oversight information requests issued by committee or subcommittee ranking members or individual Members of Congress because such requests probably would not be legally compelled via contempt proceedings or subpoenas.[5]
In response, Senate Judiciary Committee Chairman, Charles Grassley (R-IA), wrote a compelling letter to President Trump in which Senator Grassley opined that the executive branch was constitutionally responsible for complying with all congressional requests for information — regardless of whether a request is supported by a subpoena — and contested the analysis in OLC’s legal opinion.[6] In the letter, Senator Grassley righteously asserted that all Members of Congress are constitutional officers elected and entrusted to represent and vote on behalf of their constituents regardless of “ . . . whether they are in the majority or the minority at the moment and regardless of whether they are in a leadership position on a particular committee. Thus, all members need accurate information from the Executive Branch in order to carry out their constitutional function to make informed decisions . . . .”[7] Senator Grassley further reasoned that there is no constitutional or legal basis for the executive branch to withhold requested information on the basis of leadership position or committee membership, absent Congress expressly ordering the executive branch to do so.[8] Senator Grassley went on to state that the “OLC offers no authority indicating that courts expect the other two branches to cooperate with each other only when compelled to do so. Such a position would itself undermine the very purpose of comity and cooperation between the branches.”[9]
However, as Andrew Wright states in his article “Constitutional Conflict and Congressional Oversight,” some proponents of the so-called “Executive Branch Transactional Model” would vehemently dissent from Senator Grassley’s position and assert executive privilege.[10] Supporters of the Executive Branch Transactional Model hold the belief that Senators’ and Representatives’ needs for information must be balanced against the confidentiality concerns and other information-control interests of the Executive Branch. The Executive Branch Transactional Model does not allow for any arbiter, thus giving the Executive Branch the power to simply refuse to produce information when it possesses the information that Congress requests.
On the other hand, the U.S. Supreme Court’s 2020 decision in Trump v. Mazars USA, LLP in many ways affirmed congressional authority to obtain information.[11] The court held that Congress’s power to legislate implies its authority to obtain information, but its requests for information are only enforceable if tied to a legislative purpose. Thus, under the Court’s holding in Mazars USA, LLP, if Congress requests President Trump’s financial records, Congress would have to tie such a request to the enterprise of legislating. A sufficiently powerful argument could, for example, be that Congress is considering whether or how to update and amend the Hatch Act because the President may be using government assets to benefit his campaign.[12]
While arguments in favor of bipartisanship are those of compromise, cooperation, and accommodation (principles derived from the Senate), the sheer lack of support minority Members receive for their information requests calls into question the efficacy of bipartisanship and bipartisan ideals in congressional oversight. Partisan investigations should be supported — including minority-party subpoenas and especially in today’s political landscape — because the parties are currently so inherently polarized that they are required to spend all of their time and energy just to receive support for their inquiries. Support for partisan investigations would unequivocally lead to more effective congressional oversight.
[1] Carl Levin and Elise J. Bean, Defining Congressional Oversight and Measuring Its Effectiveness, 64 Wayne L. Rev. 1, 18 (2018), https://waynelawreview.org/defining-congressional-oversight-and-measuring-its-effectiveness/.
[2] Id. at 15.
[3] Id.
[4] Id.
[5] Id.
[6] Id. at 16.
[7] Letter from Charles E. Grassley, Chairman, U.S. Sen. Comm. on the Judiciary to Donald J. Trump, President of the United States (June 7, 2017) (emphasis in original), https://www.grassley.senate.gov/sites/default/files/constituents/2017-06-07%20CEG%20to%20DJT%20%28oversight%20requests%29.pdf.
[8] Id.
[9] Id.
[10] Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881, 920-21 (2014), https://scholarship.law.marquette.edu/mulr/vol98/iss2/6/?utm_source=scholarship.law.marquette.edu%2Fmulr%2Fvol98%2Fiss2%2F6&utm_medium=PDF&utm_campaign=PDFCoverPages.
[11] Trump v. Mazars USA, LLP, 591 U.S. 1 (2020), https://www.supremecourt.gov/opinions/19pdf/19-715_febh.pdf.
[12] Letter from Erica S. Hamrick, Deputy Chief, Hatch Act Unit, U.S. Office of Spec. Counsel to Carolyn Maloney, Chairwoman, House Comm. on Oversight and Reform (August 12, 2020); 5 U.S.C. §§ 7323-7324; Hatch Act Reform Amendments, 5 C.F.R. §§ 734.101, 734.104 (1993), https://republicans-oversight.house.gov/wp-content/uploads/2020/08/AO-re-Convention-speech-at-WH.pdf; https://osc.gov/Documents/Hatch%20Act/Laws%20and%20Regulations/Statutes/5%20USC%207323.pdf; https://www.govinfo.gov/content/pkg/USCODE-2010-title5/pdf/USCODE-2010-title5-partIII-subpartF-chap73-subchapIII.pdf.
