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Hearings of the
Subcommittee on Rules & Organization of the House

Cooperation, Comity, and Confrontation: Congressional Oversight of the Executive Branch

Statement of Congressman John Linder (R-GA)
Chairman, Subcommittee on Rules & Organization of the House

This meeting of the subcommittee will come to order. Today this subcommittee will examine institutional issues relating to congressional oversight and a number of roadblocks encountered in the process. Congress must be able to carry out effective oversight to deter waste and abuse and ensure that executive policies reflect the public interest. Unfortunately, when Congress directs its oversight at the executive branch, agencies frequently assert questionable rights to shield information Congress deems essential to carry out its oversight function.

This subcommittee, which has jurisdiction over institutional issues such as the implementation of the rules and prerogatives of the House, will hear from five distinguished chairmen who will offer their insights into the oversight process. They will explain some of the problems that their committees have encountered from the executive branch, and we will begin a dialogue about how to more effectively conduct oversight and protect institutional privileges and prerogatives. This is the first of several hearings we will hold reviewing congressional oversight.

I expect that we will hear testimony about the Department of Justice, not because of any particular animosity toward the Department, but because oversight of the Department poses some of the most interesting and problematic aspects of oversight. The Department also often dictates the extent to which other departments and agencies comply with congressional requests.

Let me say at the outset that I appreciate the difficult oversight work that these chairmen do. Program oversight and investigations are time consuming and often without immediate political or policy reward. Change is often difficult, particularly when dealing with an entrenched bureaucracy conditioned to be impervious to change. Every chairman before us today has faced intense media scrutiny while conducting their important oversight work. I commend them all.

Need for Oversight

Every Member of Congress should be interested in ensuring efficient and effective governmental operations. Congress has a responsibility to improve the efficiency, economy, and effectiveness of governmental operations; evaluate programs and performance; detect and prevent poor administration, waste, or abuse in government programs; ensure that executive policies reflect the public interest; ensure administrative compliance with legislative intent; and prevent executive encroachment on legislative authority and prerogatives. These bipartisan goals may be accomplished through congressional oversight.

In an effort to accomplish these bipartisan goals, Speaker Hastert and Chairman Dreier have asked the Congressional Research Service to conduct a series of bipartisan oversight workshops for members and staff in order to improve Congress’s ability to conduct oversight. Two of these sessions have already been held and the third will be held on Monday, July 26. This hearing will build on those bipartisan sessions by exploring current issues facing committees and will allow us to focus on ways to improve oversight.

Constitutional Basis for Oversight

Oversight is one of the most important constitutional functions of the Congress. The history of congressional investigations includes the failed St. Clair expedition in 1792 through Teapot Dome, Watergate, Iran-Contra and Whitewater. In affirming the Congress’s oversight powers, the Supreme Court in McGrain v. Daugherty stated that “the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function.” The Court also observed that “A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”

Congressional oversight is integral to the checks and balances inherent in our system of government in which one branch serves as a counterbalance to the excesses of the other. The duty of the legislature, John Stuart Mill wrote in Consideration of Representative Government, is “to watch and control the government; to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable.” James Wilson, a dominating figure at the Constitutional Convention and later one of President Washington’s first appointees to the Supreme Court, called the House of Representatives “the grand inquest of the state” and said that its members must “diligently inquire into grievances, arising both from men and things.” Woodrow Wilson, in Congressional Government, stated, “Quite as important as legislation is vigilant oversight of administration.” Because Wilson believed that “the only really self-governing people is that people which discusses and interrogates its administration,” he concluded that “the informing function [of Congress] should be preferred to its legislative function.”

It is for these reasons that oversight, particularly oversight of the Department of Justice is critical. We are not the first to inquire into the deeds, or misdeeds of the Department. One need not go to far back in history to recall then Chairman Dingell’s investigation into the Department’s environmental crimes program. It is worth noting that Attorney General Reno and the Associate Attorney General Webster Hubbell permitted the staff of the Commerce Committee to interrogate line prosecutors for that Dingell investigation. The Science Committee’s Rocky Flats investigation and Iran-Contra both brought the Department of Justice under the congressional microscope. Then Chairman Brooks, in the early 90's, battled the Department over his INSLAW investigation.

Opposition to congressional oversight is not a new phenomena either. However, the Justice Department in recent years has been particularly uncooperative with congressional and other investigators. The Department has a long-standing policy against sharing information with congressional committees which, in their view, may adversely impact ongoing investigations. As a strong supporter of law enforcement, I am sympathetic to this view. However, when the Department’s policy is so strained that it invents unfounded legal arguments, such as the protective function privilege, the Department loses credibility with the Congress and the American people.

In the McGrain case, the Supreme Court focused specifically on Congress’ authority to study “charges of misfeasance and nonfeasance in the Department of Justice.” The Court noted with approval that “the subject to be investigated” by the congressional committee “was the administration of the Department of Justice – whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution or proceedings to punish crimes . . . .”. It is clear then that the Congress has the legal authority to demand the production of information necessary for Congress to properly discharge its oversight responsibility and that the Justice Department is subject to such oversight.

Congress must remain vigilant in its oversight of all executive branch agencies. Former Chairmen Dingell and Brooks, and former House General Counsels Ross and Brandt firmly advocated and implemented Congress’s oversight responsibility. The American people should be concerned about prosecutorial misconduct and should be confident that the Congress will review such cases to ensure that it does not happen repeatedly. Recently, Justice Department Attorney’s have been held in contempt in federal court. If Congress wants explanations or answers about such conduct, it should not be met with platitudes about policy, prosecutorial discretion, or privileges. Congress and the American people deserve answers to such important questions. The potential for abuse in the administration of justice is great, and Congress must remain vigilant with its oversight.

Post-Independent Counsel Oversight

Finally, I want to comment on the new post-independent counsel era we are now entering. Recently, a number of Republican and Democratic commentators criticized Congress for delegating its oversight responsibility to independent counsels. Now, with the expiration of the independent counsel statute, the Attorney General has promulgated regulations governing the appointment, conduct, and removal of special counsels. The regulations place special counsels clearly under the control of an attorney general. How can Congress be assured that special counsels are independent? How can the American people be assured that undue political influence is not being brought to bear against special counsels? If the Attorney General refuses to answer questions about the appointment of special counsels the same way that she refused to answer questions about independent counsels, how can Congress be assured that impartial justice will be done? In addition, one Member of Congress recently criticized Congress for its oversight relating to the Department of Energy’s nuclear labs. Congress must remain vigilant because it will be blamed when things go wrong.

Congress must continue to exercise ‘continuous watchfulness’ over programs and agencies within their jurisdiction. Because Congress's constitutional oversight function is implicit in our tripartite system of government, Congress must -- more than ever -- properly meet its law-making and informing responsibility. The Subcommittee hearing offers an opportunity to review not only the congressional oversight function that serves as a vital tool for keeping the nation free, but also the inherent dangers of permitting agencies to impede the work of Congress.

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