[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
ARTICLE ONE: STRENGTHENING CONGRESSIONAL
OVERSIGHT CAPACITY
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HEARING
BEFORE THE
SELECT COMMITTEE ON THE
MODERNIZATION OF CONGRESS
OF THE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 4, 2021
__________
Serial No. 117-13
__________
Printed for the use of the Select Committee on the Modernization of
Congress
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
48-604 WASHINGTON : 2022
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SELECT COMMITTEE ON THE MODERNIZATION OF CONGRESS
DEREK KILMER, Washington, Chair
ZOE LOFGREN, California WILLIAM TIMMONS, South Carolina,
EMANUEL CLEAVER, Missouri Vice Chair
ED PERLMUTTER, Colorado BOB LATTA, Ohio
DEAN PHILLIPS, Minnesota RODNEY DAVIS, Illinois
NIKEMA WILLIAMS, Georgia DAVE JOYCE, Ohio
GUY RESCHENTHALER, Pennsylvania
BETH VAN DUYNE, Texas
COMMITTEE STAFF
Yuri Beckelman, Staff Director
Derek Harley, Republican Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Chairman Derek Kilmer
Oral Statement............................................... 1
VIce Chairman William Timmons
Oral Statement............................................... 2
WITNESSES
Josh Chafetz, Professor, Georgetown University Law School
Oral Statement............................................... 3
Written Statement............................................ 6
Elise Bean, Washington Director, Levin Center at Wayne State
University Law School
Oral Statement............................................... 16
Written Statement............................................ 18
Anne Tindall, Counsel, Protect Democracy
Oral Statement............................................... 28
Written Statement............................................ 30
Discussion....................................................... 46
ARTICLE ONE: STRENGTHENING CONGRESSIONAL OVERSIGHT CAPACITY
THURSDAY, NOVEMBER 4, 2021
House of Representatives,
Select Committee on the
Modernization of Congress,
Washington, DC.
The committee met, pursuant to call, at 9:01 a.m., in Room
310, Cannon House Office Building, Hon. Derek Kilmer [chairman
of the committee] presiding.
Present: Representatives Kilmer, Perlmutter, Williams,
Timmons, Davis, Latta, and Joyce.
The Chairman. The committee will come to order.
Without objection, the chair is authorized to declare a
recess of the committee at any time. I now recognize myself for
5 minutes for an opening statement.
So Article I of the Constitution animates every aspect of
this committee's work. Our hearings have focused on what steps
we can take to restore Congress to its rightful place as first
among coequal branches of government, and our recommendations
have addressed the various problems and challenges that we have
uncovered.
From day one, the committee's guiding principle has been to
make Congress work better for the American people. We have
sought to understand how and why Congress' ability to uphold
its Article I powers have been weakened so that we can find
meaningful and lasting ways to rebuild capacity and strengthen
the legislative branch. Today's hearing continues this work and
puts that Article I power recognized by the Supreme Court is
fundamental to congressional operations in its power to conduct
oversight.
Since World War II, under Presidents of both parties,
executive branch has expanded tremendously in both size and
scope. Between 1946 and 1997, an average of eight new agencies
were created each year. And while there is no official count of
all Federal agencies, one recent estimate puts the current
total at 278. That is 278 agencies full of policy and budgetary
experts charged with carrying out Federal law.
Executive branch expansion, along with huge increases in
Federal spending, have undoubtedly intensified the need for
rigorous oversight. There is no question that this boom in
executive power tests the policymaking authority of Congress.
The House's 21 standing committees and the Senate's 24 do an
amazing job, but monitoring the work of every agency is a
monumental task, and this task is made more difficult when the
executive branch slow walks or denies congressional requests
for information that Congress is constitutionally entitled to
obtain.
There is nothing inherently partisan about oversight.
Timely access to the information that Congress needs to fulfill
its constitutional obligations is in the interest of both
parties. I know our witnesses today have some recommendations
for fast tracking requests, and I look forward to that
discussion.
The oversight process is not just about holding the
executive branch accountable, it is about how Congress comes to
understand policy successes and failures. In order to legislate
smarter on behalf of the American people, Congress needs to
know whether the policies and programs it authorizes and funds
are working as intended.
Oversight provides members with the information and
agencylevel feedback they need to make sound
legislative and fiscal decisions. The experts joining us today
have a lot to say about what Congress can do to strengthen its
oversight capacity, and I am looking forward to hearing their
ideas and recommendations.
The committee will once again make use of a roundtable
format to encourage thoughtful discussion and the civil
exchange of ideas and opinion, so we are ready. In accordance
with clause 2
(j) of House Rule XI, we will allow up to 30 minutes of
extended questioning per witness. And without objection, time
will not be strictly segregated between the witnesses, which
will allow for extended backandforth exchanges
between members and the witnesses. Right?
Vice Chair Timmons and I will manage the time to ensure
that every member has equal opportunity to participate. Any
member who wishes to speak should signal their request to me or
Vice Chair Timmons. Additionally, members who wish to claim
their individual 5 minutes to question each witness pursuant to
clause 2(j)2 of Rule XI will be permitted to do so following
the period of extended questioning.
All right. I would like to now invite Vice Chair Timmons to
share some opening remarks.
Mr. Timmons. Good morning. Thank you all for taking the
time to come be with us here today. I think this is an
extremely important issue. Really, in the last 20 years, we
have seen a hyper partisanship, and it is--we have talked a lot
about it in terms of civility, because I do think that
depending on what party is in the White House, what party is in
the Congress, Oversight Committee becomes just a huge bomb-
throwing committee and they are really not doing their job.
I am going to go ahead and tell you that if in the next
decade, the one party is in the Congress and the other party is
in the White House, they are probably not going to be
legitimately doing the things that they ought to be doing. And
so the question then becomes what do we need to do to make
changes to actually reinstitute the purpose of the role of
Congress as it relates to oversight, as the chairman just said,
both learning and holding them accountable. So part of that is
civility, I think, and we have talked a lot about that, but I
think you will have a lot of additional information that we can
learn from on the subject and I am looking forward to hearing
more about it.
But I am going to go ahead and throw out one thing. I had a
meeting yesterday with somebody that started his career on the
Hill in 1974, and it was very interesting. He was on the
Appropriations Committee for a while, and he proposed the idea
of not even having an Oversight Committee because every--any
committee has an Oversight Subcommittee, and that was an
interesting thing that I had never thought of before.
So we are going to have a lot of interesting ideas that we
are going to be talking about. I just wanted to throw that one
out early. But I look forward to your testimony, and with that,
Mr. Chairman, I yield back.
The Chairman. Thank you.
I am honored to welcome our three witnesses joining us this
morning. Witnesses are reminded that your written statements
will be made part of the record.
Our first witness is Josh Chafetz. Dr. Chafetz is a
professor at Georgetown University Law School. Prior to his
current position, he spent 12 years on the faculty at Cornell
Law School. His research interests include constitutional law,
American and British constitutional history, legislation and
legislative procedure, and the intersection of law and
politics. His recent book, ``Congress'' Constitution:
Legislative Authority and Separation of Powers,'' explores how
Congress uses the various tools at its disposal during
conflicts with other branches of government.
Dr. Chafetz, you are now recognized for 5 minutes.
STATEMENTS OF JOSH CHAFETZ, J.D./PH.D., PROFESSOR, GEORGETOWN
UNIVERSITY LAW SCHOOL; ELISE BEAN, J.D., WASHINGTON DIRECTOR,
THE LEVIN CENTER, WAYNE STATE UNIVERSITY LAW SCHOOL; AND ANNE
TINDALL, J.D., COUNSEL, PROTECT DEMOCRACY
STATEMENT OF JOSH CHAFETZ
Mr. Chafetz. Thank you very much. Chairman Kilmer, Vice
Chairman Timmons, and members of the committee, thank you for
the opportunity to testify today regarding the vitally
important topic of congressional oversight. Although not
explicitly mentioned in the text of the Constitution itself,
oversight has been understood from the earliest days to be not
only a constitutional power but a constitutional duty of the
Houses of Congress.
Following the 18th century British House of Commons,
members of the founding generation described Congress and
especially the House of Representatives as the grand inquest of
the Nation with a special duty to, in Founding Father James
Wilson's words, ``diligently inquire into grievances arising
from both men and things.''
This duty was exercised from the earliest days with the
House conducting a major investigation in 1792 into the defeat
of an Army force under General Arthur St. Clair by a
confederation of Native American tribes at the Battle of the
Wabash, an investigation that resulted in the passage of
corrective legislation.
Oversight power became increasingly important, as the
chairman noted, with the growth of the administrative state,
beginning really in the late 19th century and accelerating into
the first half of the 20th century. And Congress recognized
this in various ways, including in the 1946 Legislative
Reorganization Act's mandate that standing committees exercise
continuous watchfulness of the agencies within their
jurisdiction, the creation of the House Oversight Committee and
Senate Permanent Subcommittee on Investigations, and the growth
and professionalization of member and committee staff and the
congressional support agencies. It was also during this period
that the Supreme Court issued its most important opinion
blessing a broad power of congressional oversight in McGrain v
Daugherty.
The recent years have seen congressional demands for
information repeatedly stymied by the George W. Bush, Barack
Obama, and especially Donald Trump administrations, and that
experience has pointed to the limits of the methods that the
congressional chambers have been using to enforce their demands
for information.
In particular, the last decade and a half have made clear
that Congress cannot and should not make itself reliant on the
courts to help it get information out of an unwilling
executive. When it comes to the criminal contempt mechanism,
administrations have repeatedly declined to prosecute their own
officials. And when the House has filed civil suits to secure
testimony or documents, those suits have taken so long to
resolve that even when the chamber nominally wins the
information gets produced far too late to help that Congress
oversee that administration.
Conflicts from the George W. Bush administration were not
settled until President Obama was in office; conflicts from the
Obama administration weren't settled until President Trump was
in office; and a number of the conflicts from the Trump
administration remain pending before the courts today.
In essence, simply by bringing a dispute to court, a
congressional chamber is effectively giving up on forcing
information from the executive on a useful timeframe.
Fortunately, Congress does have other tools at its disposal for
forcing information from the executive branch.
And I would like to suggest that the chambers would be well
advised to think about how the power of the purse can be used
in the service of oversight. Money can only be dispersed from
the Treasury pursuant to statute, and every part of the
executive needs money to function. This gives Congress
significant leverage that it can use to pressure the executive
to cooperate with information demands.
The simplest and in some sense crudest version of this is
purely retrospective: If an administration stonewalls an
information demand, then Congress makes it pay in the next
appropriations cycle, perhaps by slashing funds for a
misbehaving agency or even zeroing out the salary of a
contumacious official. One can then take this sort of simple
case and begin to add complexities to make it somewhat less
crude.
So, for example, consider a change to House rules that
would create a point of order against any appropriation to pay
the salary of anyone who had been held in contempt by the House
and hadn't purged that contempt. Now, of course, the point of
order could be waived, but it would change the baseline, right.
A simple application of the rules would withhold the official's
salary, and anyone wanting to pay it would have to take an
affirmative vote to do so and explain that.
But consider the use of oversight riders: Certain
appropriations could be paired with riders requiring the
provision of information to Congress on a timely schedule. This
was used to some extent in the CARES Act a couple years ago.
Failure to provide that information could automatically trigger
cuts either to the underlying appropriation itself or to the
salaries of the noncompliant firms.
And such riders could make use of nonseverability
clauses, so that if OLC were to declare, as it has done on a
number of occasions, that the rider was unconstitutional, that
would lead to the loss of the underlying appropriation as well
that is putting some pressure on OLC to be more restrained in
making those sorts of determinations.
Those suggestions I have just made rely on the threat of
withholding funds to secure cooperation with oversight, and I
do think that is a very potent threat. But I also want to
suggest one way that Congress might spend money to better
facilitate oversight and that is by engaging in capacity
building.
As this committee well knows, staff number, staff tenure,
staff pay, and staff training are all in need of more
resources. This is true at both the member and committee level
and even more so in the case of the support agencies like GAO,
CBO, and CRS. This committee has already recommended increases
in funding for congressional capacity, and the fiscal year 2022
leg branch appropriations bill passed by the House is a good
start, but more could certainly be done on that front as well.
Oversight is one of Congress' most important functions, and
it is under threat and has been for several decades now.
Creative thinking about methods of enforcing information
demands is sorely needed, and I submit to this committee that
the appropriations process has the potential to offer some
serious solutions. Thank you very much.
[The statement of Mr. Chafetz follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thanks, Dr. Chafetz.
Our next witness is Elise Bean. Ms. Bean is the Washington
Director of the Levin Center at Wayne State University Law
School. From 1985 to 2014, she worked for Senator Carl Levin,
including 15 years at the Senate Permanent Subcommittee on
Investigations.
Ms. Bean was appointed PSI staff director and chief counsel
in 2003 where she handled the wide range of investigations
hearings and legislation. In 2014, after Senator Levin retired
and the Levin Center at Wayne Law was established in his honor,
she joined the center to work on strengthening legislative
capabilities at the Federal, State, local, and international
levels to conduct investigations and oversight.
Ms. Bean, welcome back. You are now recognized for 5
minutes.
STATEMENT OF ELISE BEAN
Ms. Bean. Thank you so much. Seems to be all right now. How
about that? Okay. I think I am all right. All right. So we will
get further away.
Well, thank you so much for this opportunity to talk about
strengthening Congress' Article I powers to do oversight. As
people have mentioned, oversight is key to enacting the
constitutional system of checks and balances, and it is key to
getting the information that Congress needs to do its job.
My prepared statement has a whole menu of things that could
be done large and small to try to strengthen congressional
oversight authority, procedures, staffing, but I would like to
concentrate on just one particular recommendation that has to
do with the ability of Congress to issue legal opinions on
oversight issues.
As we know, for decades, the executive branch has been able
to issue legal opinions through the Department of Justice
Office of Legal Counsel, and they have issued a whole bunch of
them on oversight issues. For example, they have said that
presidential aides are absolutely immune to congressional
subpoenas.
I don't know of anyone in Congress who agrees with that,
and the few courts that have looked at that issue haven't
agreed that such an immunity exists either; and yet, Presidents
on both sides of the aisle have taken that position and
continue to take that position. Congress has no ability to
issue its own legal opinion as a whole as an institution
explaining why such immunity should not exist. We don't have
that mechanism right now.
In the last Congress, this committee recognized that
weakness and said that Congress needs to strengthen its hand in
court. And I know that the committee is considering this
Congress to send a letter to the GAO asking them to do a study,
but how exactly would you do this? How would you set up an
office that allows Congress as a whole to issue legal opinions?
Should they be done by the House and the Senate separately?
Should there be bicameral opinions?
I think they would not be worthwhile unless they were
bipartisan and they contained careful legal analysis. How would
you staff that office? How would they draft those opinions? How
would they finalize and approve those opinions? Those are all
difficult questions but they can be worked out.
Some people think, well, you are never going to have the
two sides agree on anything, much less the two Houses, and yet,
I would submit that there are a lot of areas where consensus is
possible, one being obviously that presidential aides are not
absolutely immune to congressional subpoenas and don't even
have to appear at a congressional hearing when called.
Executive privilege might be another area, requiring the
President, if he wants to withhold documents, has to have a
list of those, a privilege log that has to be given to the
committee that has asked for the information.
Another area, minority requests. Right now, there is an
opinion that is within the Office of Legal Counsel that says if
a ranking member of a committee requests information, the
agencies can simply ignore it. I think both sides of the aisle
would agree that minority members, ranking members of
committees, aren't going to be able to get information as well.
So there are a lot of areas where bipartisan, bicameral
agreement is possible if we set up a procedure, an office,
mechanism to get those issued, and we haven't done that right
now.
I would like to also offer just one other thought from the
menu of possible options, and that is enforcing--getting better
civil enforcement of congressional subpoenas in court. Josh is
absolutely right that it has been very difficult over the last
few years, processes almost broken down, and there are a lot of
things that Congress could do to improve it.
There is a bill that has been introduced, the Protect Our
Democracy Act, title 4, that actually had some bipartisan
language that has been worked out. I think it is pretty good
language, and I would encourage this committee to take a look
at it--it was developed with Congressman Issa, among others, so
it is bipartisan--and to think about endorsing that approach in
that bill to title 4.
So thank you very much for your attention, and I am
available to answer your questions.
[The statement of Ms. Bean follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Ms. Bean.
And our final witness is Anne Tindall. Ms. Tindall is
counsel at Protect Democracy where she leads a team to secure
accountability for abuses of power and counter antidemocratic
activity at the Federal and State level. Prior to joining
Protect Democracy, she served as assistant general counsel for
litigation and oversight at the Consumer Financial Protection
Bureau. She has also served as counsel to the House Committee
on Energy and Commerce.
Ms. Tindall, you are now recognized for 5 minutes.
STATEMENT OF ANNE TINDALL
Ms. Tindall. Chairman Kilmer, Vice Chairman Timmons,
members of the select committee, thank you for the opportunity
to testify at this timely hearing.
At Protect Democracy we work to prevent and respond to
threats to our democratic system for those acutely concerned
with presenting abuses of executive power and reinvigorating
Congress' ability to function as an effective check on the
President, which requires being able to compel compliance with
this demand for information.
Today I will address two opportunities for strengthening
congressional oversight capacity. This morning, my written
testimony goes to many more. First, modernizing Congress'
subpoena compliance tools, and, second, ensuring access to
sensitive information by congressional staff.
There are three ways in which Congress can force the
executive branch to comply with its oversight demands: Civil
contempt litigation in the courts, inherent contempt, and the
criminal contempt of Congress statute. I want to highlight the
first two of these for you this morning.
For most of the century, Congress has primarily sought
subpoena compliance from the executive branch through civil
litigation, but as the previous two witnesses highlighted, that
path has failed to meet Congress' oversight needs. Oversight
requests issued in one presidential administration often span
several administrations and certainly span several Congresses.
As Elise Bean referenced, the Protect our Democracy Act, of
which several members of this select committee are cosponsors,
seeks to address this deficiency by expediting judicial
consideration of congressional subpoenas and creating a cause
of action for their enforcement to eliminate jurisdictional
disputes that slow courts down.
The expedited procedure would have civil contempt suits
heard by a threejudge panel convened at Congress'
request and reviewable only by direct appeal to the Supreme
Court. Protect Democracy urges enactment of these measures.
If there is one thing you take from my testimony today, I
hope it is that PODA is necessary--PODA, Protecting Our
Democracy Act--is necessary but not sufficient to address
Congress' oversight needs. Civil litigation, no matter how
expedited, often will be too slow for consideration of
sensitive and voluminous information requests, and it hands
decisionmaking authority to the courts, which have
never given Congress an unequivocal win at disputes with the
executive branch.
By all means, send PODA to the President's desk, but you
can't stop there. The executive branch has learned that it can
slow walk response to oversight demands and watch the courts
run out the clock. Congress must get the executive branch back
to the negotiating table, and the best way to do this is by
invoking inherent contempt powers.
This used to mean sending the Sergeant at Arms to arrest
and imprison holders of information until they complied. While
the Supreme Court has upheld this means of effecting
compliance, it is likely both practically and politically
today.
But a system of fines of contempt could modernize Congress'
inherent contempt powers and turn them into a credible lever
for compliance. And unlike expedited civil litigation, it could
be effected simply through a change in the House rules. The
congressional inherent contempt power resolution introduced in
May would do just that.
Finally, Congress should act on the compensation, training,
and technology recommendations the select committee issued in
the last Congress and also consider increasing the number of
congressional staff with access to top secret, sensitive
compartmented information security clearances.
At a minimum, the House should allow all Members of the
House Permanent Select Committee on Intelligence to hire a
staffer with such a clearance, as their Senate counterparts
may. This would ensure that members have staff to support
effectively in their oversight of the Federal government's most
sensitive and consequential programs.
I want to close with a compliment and a warning. The most
important thing Congress could do to strengthen its hand in
oversight is to follow the example set by this committee, which
has committed itself to work collaboratively in supporting
Congress as an institution. This, as you know, is not the way
Congress always works.
Across Democratic and Republican administrations, the
executive branch vigorously defends its interests and adheres
to an increasingly radical vision of executive power,
unrestrained by Congress. As long as legislators act first in
the interest of their political party rather than the
institutional interests of Congress, Congress will lose battles
against Presidents who stand shoulder to shoulder defending the
recalcitrants of their predecessors. Our system of checks and
balances, the foundation of our democracy, requires that
Members of Congress also stand shoulder to shoulder in defense
of the first branch's constitutional authorities.
Thank you, and I look forward to your questions.
[The statement of Ms. Tindall follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Ms. Tindall.
I want to now recognize myself and Vice Chair Timmons to
begin a period of extended questioning of the witnesses. Any
member who wishes to speak should just signal their request to
either me or Vice Chair Timmons.
So, I guess, one of the things I wanted to ask about was
much of your testimony appropriately was about where the
executive branch basically isn't playing ball. I want to
actually just take a step back and look at how the legislative
branch approaches oversight.
You know, Vice Chair Timmons in his opening statement sort
of spoke to, you know, I think there is almost two kinds of
oversight in this place. There is the kind of gotcha oversight
where the party that controls Congress, if the executive branch
is under a different party, it is about kind of really trying
to get headlines, trying to embarrass that administration
politically.
You know, and then there is 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.
I want to get your assessment, one, of how Congress does on
that second piece, and if there is things that you think our
committee ought to be thinking about recommending to
incentivize more of that second type of oversight or make more
effective that second type of oversight.
I am sure members of the committee will have questions
about the kind of stalemate between the executive branch and
the legislative branch, but I kind of want to take a step back
and just start with, how is the legislative branch doing? Go
ahead.
Ms. Bean. So at the Levin Center, we do a lot of work on
oversight, and actually bipartisan oversight is alive and well.
It is not covered by the media. And I say to my reporter
friends, are you going to cover this great bipartisan hearing
that is impacting the real problem? They are like, no.
So the only things that people see, that the media covers,
have a partisan--and actually there is enormous amount of
bipartisan oversight going on all the time. And it is not even
on the committee level. Sometimes it is individual members. I
remember a report that came out of Congress years ago----
The Chairman. Oh, you may have to use a mike. I am sorry.
You can try yours again if it is not possessed.
Ms. Bean. Yeah, let me try that.
The Chairman. Yep, still possessed. Let's borrow Dr.
Chafetz's.
Ms. Bean. Okay. I apologize for not turning that on. But I
was just going to say, I remember a report that came out----
The Chairman. Yeah, I would use that one, yeah.
Ms. Bean[continuing]. Years ago from a Democrat and
Republican office that looked at pain relief issues and the
World Health Organization. These two offices had no subpoena
authority, they didn't have a committee, they simply looked at
documents that had come out of litigation. They looked at the
pain relief recommendations of the World Health Organization
and showed over time how the World Health Organization had
taken on the same policies as Big Pharma and opioids.
They put out a report disclosing this. The World Health
Organization responded by withdrawing their pain relief
recommendations, which had recommended very strong opioids very
early in the process, and that was just two offices working
together on oversight. So my answer is, there is a lot of good-
faith, bipartisan, fact-based oversight that goes on right now.
As for what you can do, we have a couple of suggestions,
sort of soft suggestions. One is trying to popularize the idea
of making a public commitment to bipartisan oversight. So you
just announce publicly at the beginning of an investigation, we
are going to do this together.
And that worked for the Permanent Subcommittee on
Investigations. We regularly did that. And our bosses
instructed the staff to work together, and guess what? We did.
When your boss tells you to do it, you do it. And that--maybe
you could develop a model statement or just popularize the
notion of having a public commitment to bipartisan oversight.
Another idea that we have suggested is have fewer hearings
on less partisan topics. Right now there is so many hearings
that go on, people have a tough time even tracking all of the
intricate issues that are going on. And the more partisan the
issue, often the less productive the hearing, the less progress
you make. So that is another idea.
And the third idea that we suggest is increasing social
interaction. On the Permanent Subcommittee on Investigations'
staff had a running cocktail party every 2 weeks, and weren't
allowed to talk about work. You could just talk about--if I in
the past or, you know, just sort of the chitchat that goes on
with people that work together. We found that that social
interaction--we also took photographs of the teams that work
together on a bipartisan basis on each investigation. We found
that that social interaction and those photographs did more for
our committee than almost anything else. So those are just a
couple of ideas.
The Chairman. Thank you.
Mr. Chafetz. If I could just follow up on that. So Elise is
exactly right about the tremendous amount of bipartisan
oversight that actually does go on, and the Levin Center has
done tremendous work tracking that. And it is consistent with a
small but real body of political science literature that
suggest that there is still a fair amount of bipartisan
oversight that happens.
I think, you know, it is wonderful to the extent that that
is possible. It is also, I think, worth stepping back and
perhaps saying that bipartisan doesn't always mean good, and
partisan doesn't necessarily mean bad, right.
So one reason that certain things are partisan issues is
simply because there are ideological disagreements about what
it means for some part of the executive branch to be doing a
good job or a bad job. And if there is disagreement about that,
and in an increasingly sort of partisan, polarized age, that
disagreement is likely to track party lines, then we actually
should expect to see the parties taking a different view on
oversight of that particular part of the executive branch.
And sort of further than that, you know, oversight is one--
so, you know, the two kinds of oversight that you mentioned at
the beginning, right, the sort of--you called it gotcha. I
would perhaps use a less pejorative term, but the sort of
gotcha on the one hand and the day-to-day on the other in some
sense could also be separated out as, you know, the day-to-day
oversight being oversight of things that are perhaps lower
level down in the executive branch whereas a lot of the gotcha
or sort of more communicative or performative uses of oversight
tend to be things that are closer up to the White House level,
right.
And it is actually an important function that Congress
serves as a way of pushing back against presidential power that
when another party controls one or both of the Houses of
Congress that they actually do serve as a sort of rhetorical
counterweight.
So we tend to forget that a lot of the earliest committee
hearings surrounding Watergate were on party lines. By the time
you get closer to the House Judiciary Committee reporting out
the impeachment articles, it was somewhat bipartisan although
not all that bipartisan. But at the very beginning they are
party-line votes in the House Judiciary Committee.
So I don't think that partisan oversight is necessarily a
bad thing. I think bipartisan oversight when it can be made to
work and when it is appropriate is a good thing, and I share
Elise's recommendations on that. But I wouldn't want us to say
that just because something is happening on party lines that
necessarily makes it a bad thing.
The Chairman. Ms. Tindall, do you want to take a swing at
this pitch too?
Ms. Tindall. Just one short comment here. I agree with
Professor Chafetz that partisan oversight does not have to be
an empty affair, but I do think some of the recommendations
this committee has made over the structure of oversight
hearings could reduce the sort of gotcha feeling that we all
get when we watch these hearings and have the conversation go
back and forth ping-ponging between what is made largely for
YouTube, for social media, and less for engaging with the
witness.
To get the sort of productive and really effective
oversight you want, both on the bipartisan oversight on, you
know, issues where there can be agreement and even where there
are ideological disputes and there may be conflict, being able
to actually engage with the witness in extended period of time,
not, you know, the sort of 30-minute questions, perhaps even
handing questioning over to staff who have really mastered all
the facts of the investigation and can offer followup questions
and the like could lend substance to the hearings that now
often feel more full of finger pointing.
The Chairman. Vice Chair Timmons.
Mr. Timmons. Thanks, Mr. Chairman.
I have been doing a lot of research while we have been
sitting here. So the House has both the full Committee on
Oversight and Government Reform, and it has at least seven
subcommittees for E&C; Financial Services; Homeland; Natural
Resources; Veterans Affairs; Ways and Means. The Senate,
interestingly, the word ``oversight'' only appears one place in
all of their committees and subcommittees.
My time in the House, in my just life experience, would
lead me to feel that maybe--well, I feel like a lot of the
things that the House does--again, this is on both sides of the
aisle at different points in the last 30 years--have devalued
the purpose of our ability to actually engage in oversight in
the House. Is the Senate doing it better, or there are fewer of
them? It is harder to tell a Senator no? I don't know. Talk me
through your--the difference between the two, whoever wants--
whoever knows the most about it.
Ms. Bean. So I don't think the Senate is doing better than
the House. Just whether you call something oversight or not
doesn't really, you know, control whether somebody is doing
oversight. And there is this law that now requires every
committee to do oversight as part of its work. You are not just
supposed to produce laws; you are also supposed to produce
oversight. And, of course, the two go hand in hand, because how
do you know what a law should look like, how it should
function, if it should be modified unless you get more
information?
You raised an earlier question about why do we need a
general Oversight Committee, why not just leave it to each of
the authorizing committees. And the answer to that is, all of
those other committees have a lot of legislative
responsibilities. An Oversight Committee is less about
legislation and more about fact finding.
So I worked on the Permanent Subcommittee on
Investigations. We had no legislative authority at all. We had
nothing to do with passing laws. We were only about fact
finding. And one of the things we looked into was money
laundering. Why did we do that? The Senate Banking Committee
had a lot of legislative responsibilities. They never had time
to get to money laundering. They just didn't have time on the
order of their priorities, and I couldn't argue with them. They
had more important things to do than money laundering. And,
yet, that is a really serious problem in a whole variety of
ways. And so we spent time doing that money laundering and then
eventually we helped to produce a bill, but then it went to the
banking committee that then considered it and eventually passed
it.
So that is one reason you have an Oversight Committee so
that they can function, take on that constitutional
responsibility that Members of Congress are not just about
legislating, they are also about figuring out how the
government is working, how can we improve it.
Mr. Timmons. In your experience, do authorizing committees
facilitate or help the full committee on oversight with its
pursuit of information? I mean, theoretically they are going to
have better relationships, better subject matter experts, and
they might be able to more effectively pursue information. Is
that something that happens or are they pretty separate?
Ms. Bean. Occasionally it happens. Occasionally an
Oversight Committee will go to, say, the Armed Services
Committee, can you help us get this information from DOD on
this particular issue. But a lot of times the full committees
are kind of jealous of their relationships with their agencies,
and they develop very strong agencies, sometimes even agency
capture, and they don't want to help an Oversight Committee
that is pointing out problems. So it is a mixed bag.
Mr. Timmons. When the full Oversight Committee pursues
information, whether through subpoena or what other the
mechanism may be, does it ever happen that they go to the
subcommittee on the authorizing committee and request to do a
joint request as opposed to just--I think that would be
stronger. Is that something that----
Ms. Bean. Yes, it would be stronger. And I think people try
to do that wherever they can, and you will see joint letters
and requests for information.
I think one of the big things about oversight, what
distinguishes an oversight hearing versus a legislative hearing
is it is more about fact finding as opposed to evaluating
legislation. And fact finding, I mean, we found on PSI that if
you fact find with somebody who has the same world view as you,
generally agrees with you, you don't challenge each other. You
miss a lot of facts. You just don't get it right.
It is only when you investigate with people who have
fundamentally different views than you have that you start to
look at more facts, you are more critical about them, you
challenge each other. And at the end of the process your
results are usually more accurate, more thoughtful, and
certainly more credible because you had a range of views in the
process.
I think the Oversight Committees really take that to heart
and when they are doing bipartisan oversight to try to use
those disparate views to come up with a better set of facts
that you can then use to think about what you should do about
the problem.
Mr. Timmons. One last question. Dr. Chafetz, you talked
about using the power of the purse to better engage in
oversight. I really like that idea, but, I mean, at the end of
the day, I feel like it is probably going to be very
challenging. Obviously we have lived in CRs for forever and
then, you know, you are going to have to figure out getting the
Senate and the House to agree. And, I mean, talk me through
that a little more. I mean, is that a great idea that probably
will never work? But, I mean, expound on it, please.
Mr. Chafetz. So part of the sort of intuition it calls on
is that appropriations must pass in some sort of central sense.
And so the basic idea is that if, you know, one House or the,
you know, Appropriations Committee of one House feels very
strongly about a particular rider that there is a decent chance
they can get that into the final bill, because what is the
alternative, right, if you are actually willing to sort of
insist on that being in a final appropriations bill.
And I am just going to back up for a second to the question
of CRs now. If you are willing to sort of insist on that rider
being in a final appropriations bill, the other Chamber, either
by refusing--either the other Chamber by refusing to go along
with the President by threatening to veto is essentially
threatening to defund, you know, a 12th of the Federal
Government.
And so there is--you know, a House that is willing to
really insist strongly on that could actually I think get a lot
of those riders through. It wouldn't always win the fight, but
it might win the fight. It would have to think sort of
carefully about the sort of political optics of doing it as
well, right?
Obviously, just because you are having a fight with, you
know, the Department of Agriculture doesn't mean you want to
defund the Department of Agriculture, but it might mean you go
after sort of targeted officials, or if you have a situation
where, say, you think the White House Counsel's Office is, you
know, telling the President, hey, you don't have to respond to
any oversight demands from anyone ever, maybe the American
people don't need to be paying for the White House Counsel's
Office in that moment, right?
So I think there are sort of targeted things that the House
could do that it could insist on. Now, that becomes harder as
the sort of normal appropriations process breaks down, right?
So part of what I would advise--and I gave this testimony to
the Budget Committee last year--is it is important to try to
return to regular budgeting order. It is important to try to
bring back that process, because that is the way that the
Houses of Congress exercise finder and control over not just
spending but a whole host of issues that are collateral to----
The Chairman. I want to call on Mr. Latta, but can I just
pull that thread real quick. So it is also hard because it is a
really partisan place, right? How do you prevent sort of gaming
of that, right? Like, whatever party is in charge in Congress
has agencies they love and agencies they don't love so much.
So how do you keep--if you go that route of withholding
funds, how do you make sure that a legislative party that is in
power doesn't say, I am going to ask for something ridiculous
from this agency to squeeze their budget?
Mr. Chafetz. And to some extent, that is the congressional
power of the purse, right? That when people who are sort of
more sympathetic to certain government functions are in
control, they tend to fund those government functions and
defund the ones that they are less sympathetic to.
So, to some extent, that is a problem that is not sort of
specific to oversight, but is really endemic to the idea of
congressional control over spending. But I think the check on
sort of specific demands here is a political check. It is that
ultimately when you are doing these things, you are setting up
a political fight. You are setting up a confrontation with the
other House, with the Presidency.
And so you have to be able to go out in public and make a
plausible claim for why you should win that fight, in the same
way that, you know, when these fights have gotten out of hand
and we have gotten to lapses in appropriations, right, what
ultimately settles those lapses in appropriations is some sense
that one side or the other is losing the public fight, and that
side then eventually caves.
So I think ultimately, the check has to be that you have to
be able to go out and defend what you are trying to do.
The Chairman. Mr. Davis.
Mr. Davis. Mr. Latta.
The Chairman. He left.
Mr. Davis. Even better. That is great. That happens to make
this place work better when your colleagues in front of you
just step out at the exact right time.
Look, I love the recommendations you all have. The power of
the purse, great. I would love to get back to our approps
process. And, as a matter of fact, we are trying to teach the
next generation about the appropriations process.
I got a tour of a new exhibit in the Capitol Visitor Center
not too long ago where they have an interactive table where,
when we open this place up again and people can start coming
here again, they are going to be able to argue and debate the
12 appropriations bills.
Well, my staff director asked the question, where's the CR
button? Because, frankly, that is where we are at right now. We
can talk in philosophical terms about what worked and what
didn't, but this place has never been more of a hot political
temperature. In my time as a staffer for 16 years and my time
now 9 years as a Member of Congress, I have never seen it this
bad.
And we have had committees like the committee I lead, House
Administration for our side, swear in witnesses. Never done it
before. I mean, the dirty little secret is if you testify, you
are already swearing in anyway. You are already saying you are
not going to lie to us. So don't lie, we will come after you.
We will jointly exercise our oversight responsibility if you
say anything untrue today.
But social media, you want that news pop, want to be able
to get out there. And I noticed there hasn't been a discussion
about how our normal media environment, other than the fact
that you are absolutely right, Ms. Bean, that the media doesn't
want to cover us talking about things where we agree. They just
want to see me punch Perlmutter, which could be in about 5
minutes, you know, because he is a Broncos fan. They are
terrible.
But in the end, what does that have to do? How can we get
back to better bipartisan oversight, because everything you all
say is great, but, I mean, the only hope I have is that we have
gotten better, because I remember when, you know, I was told
Chairman Dingell used to exercise his own oversight when he had
proxy capability. We got rid of that in 1995.
Now we are back to proxy voting on the floor. What is the
next step, back in committees? No. No. I don't think that will
help us whatsoever. And, frankly, I am a little frustrated with
proxy voting right now, because it stops somebody like me from
going to talk to all of my colleagues about legislative ideas
or even oversight ideas that they have, and I think it helps
break down the institution and not in a very good way.
Social media, how is that impacting our ability to exercise
our bipartisan oversight? I don't care who answers.
Mr. Chafetz. Should I take a quick crack at that? Because I
have looked at oversight in a lot of different eras, and it is
not clear to me that the fights are particularly more--are
particularly stronger now.
So I have looked at, for example, the Nye committee in the
Senate in the 1930s, which was the Munitions Committee or the
Merchants of Death Committee. You look at the McCarthy hearings
and the Army-McCarthy hearings in the late forties and fifties.
You look at some of the hearings in the 1990s.
These are all different media environments, right? The
first one is radio. The second one is television. The third one
is internet but presocial media. Now we are in the social media
era. And they are all nasty, and they are nasty in different
ways. Sometimes the nastiness is cross-partisan, so there are
factions of both parties fighting within themselves, and then
sometimes it is more partisan.
I would suggest that, you know, to whatever extent we are
in a moment of sort of high political passion, the fault isn't
with the media and it is not even with--I mean, there are
things that Congress as an institution can do to turn down the
temperature in Congress, but the truth is that the American
public is more polarized than it has been in over a century
along political lines. And if the American public is polarized,
we not only should expect Congress to be polarized, in some
sense we should want it, right, because Congress is meant to
represent the people.
Now, again, that doesn't mean we shouldn't try to figure
out ways that where there is agreement or might be agreement
forged across those lines that we should do it, but we
shouldn't expect sort of agreement across party lines when what
we have in the underlying public is the American people that
have been getting increasingly polarized since the mid 1960s.
Mr. Davis. Very good point. Somebody else? Yeah, don't
waste that. Don't try the middle one again, no matter what he
says. We don't listen to him either.
Ms. Bean. I would like to point out that what you are
talking about is the norms in Congress, and it is very hard to
change those norms. And I think one thing that, you know, it is
not a sexy answer, but training, workshops. If you have from
the very beginning for new Members orientation, if they have a
session talking about how oversight can bring the parties
together, I mean, that is a message that you don't hear very
often.
Mr. Davis. You told the right person. We will duly note
that for orientation after this next election cycle.
Ms. Bean. And then if there is ever a Members academy,
leadership academy. And on the staff level, the Levin Center,
working with POGO and the Lugar Center, for 5 years now has
been doing staff-level training on oversight, fact-based,
bipartisan. We have a hundred applications for each 25 spots
that we do. We do it twice a year.
There is tremendous interest in bipartisan, fact-based
oversight. And not only that, when you work with the staff,
they love it. What we do is we get Democrats, Republicans,
House and Senate, we put them on bipartisan, bicameral teams,
give them a fake scandal and then take them through the
legislative oversight process.
And they find that they can't even tell who is from which
party, and they find everybody has good ideas, and they find
they can work together. But you don't find that out unless you
do it.
Mr. Davis. Right.
Ms. Bean. And workshops are important. Right now, there
isn't a single oversight offering from the Congressional Staff
Academy. We have been trying to get them to think about it. No
luck so far. But I am hoping one of the things that this
committee could do is tell the Congressional Staff Academy you
have to have something about bipartisan, fact-based oversight.
Mr. Davis. I will tell them right now. You need to have
something about bipartisan, fact-based oversight in the
Congressional Staff Academy.
Ms. Bean. Or you can just send people to our, you know,
oversight boot camps.
Mr. Davis. Where's my team on House Admin? Hey, tell them,
all right? Ms. Bean.
Hey, Ms. Tindall, I do have to apologize. I see you worked
on Energy and Commerce with my former boss, Mr. Shimkus. I
apologize for the many years you had to put up with him. He is
in town today, so if you see him tell him I said that too. But
what are your thoughts on the media environment?
Ms. Tindall. I think the media environment is not something
that we here are going to solve or that you in Congress are
going to solve, but I think that what Ms. Bean is describing is
a way to build the sort of institutional interest that I was
talking about in my opening statement, where you provide staff
and you provide Members with ways to get what feels like wins,
get what feels like progress and fulfilling work together, and
help them to understand that it is the institution of Congress
they are representing rather than their political party across
all investigations.
You know, certainly not all of our oversight on Energy and
Commerce was bipartisan, but a good chunk of it was. And when I
look back on the time I spent in Congress as an investigator,
it is those bipartisan investigations that were the most
successful, that were most likely to lead to reform
legislation, and that were most fulfilling to the folks
involved.
Mr. Davis. Thank you. Thank you.
One last question, observation I want to talk about and
have you all address if you have the opportunity is you talk
about minority rights. I really care about minority rights
right now because I am in the minority.
And we are learning a valuable lesson about how to create
more of a bipartisan work environment in the committees that I
serve on. And compared to the years I served when we were in
the majority versus the years I have served in the minority, I
am learning a lot.
I don't think it is going to be--but here is the problem I
have: We talk about minority rights. We talk about how do we
exercise that bipartisan oversight. This place is based on
precedents, right? The precedent has been set by this majority
to actually not allow Members of the minority to serve on
committees that the minority names them to, be it a select
committee or be it a committee. That precedent is going to be
taken by any new majority too.
How do we stop that? How do we stop--how do we get back to
a point where the minority rights means being able to appoint
their own Members to committees, and then focus on bipartisan
oversight rather than focusing on politics? We can make that a
Staff Academy one too, if you would like.
Ms. Bean. Well, I think as it becomes more and more clear
that the majorities can flip back and forth, each side is going
to become a lot more interested in minority rights, because one
Congress you are in the majority, the very next one you are in
the minority.
When I was in the Senate, I was in the majority and
minority back and forth over the years. And so, as you say, you
start to gain an appreciation for why the minority is important
and why you need two vibrant parties working together to solve
problems. So I think there is going to be a fix automatically.
When I saw some Republicans write to the Department of
Justice saying, we don't like your legal opinion that Federal
agencies don't have to respond to committee requests made by
ranking minority members, but hallelujah, right, that is true.
And that is another reason why Congress itself needs the
ability to issue legal opinions on a bipartisan, fact-based
way. That is how you are going to tackle that problem.
Mr. Davis. Go ahead, Dr. Chafetz.
Mr. Chafetz. I am not sure I have too much to add on that
except that, yes, you know, precedents can be important, but
they also are not sort of determinative, right? The ways in
which Members get appointed to committees have changed
radically over the course of the history of this institution.
And I think you can also sort of distinguish perhaps between a
general rule that continues to be operative, right, and a few
exceptions.
That said, you know, I think, like everyone up here, I
would be very dismayed if the sort of general rule were changed
to take away significant amounts of power from each party to
[inaudible.]
The Chairman. Did you want to pull on one of the threads
from Mr. Davis? Okay. Mr. Perlmutter.
Mr. Perlmutter. Thanks. And just to follow up on Rodney's
point on the--he has a legitimate point on the taking somebody
off the committee. You really do. But also, your point is being
about the executive branch more or less giving you, you know,
the thumbing your nose at congressional oversight.
And I am sorry, I missed your initial remarks, but how do
we deal with that? I don't care. It could be could be the Biden
administration, you know, talking to a Republican majority
saying, sorry, we are not showing up. How do you deal with
that?
Ms. Bean. I think, as we have all said, there is a number
of things. There is not one silver bullet. One thing is you
have to have a strong congressional position, bipartisan,
bicameral. There is no such thing as executive branch immunity
to congressional subpoenas. And then you use that opinion. You
have to go to court. You are going to have to get a court
decision.
When we have gone to court, there are two district courts
that have considered that opinion, and they both said there is
no such thing as absolute immunity. But that is only a district
court. It hasn't gone up the process yet. So you have to set up
a way to get better or quicker, better court consideration of
these issues.
We talked about Title IV of the Protect Our Democracy Act
that has been developed, with bipartisan input, that has some
really terrific provisions that could help address this issue.
And I think Anne has also talked about inherent--why don't I
just--there is another option.
Ms. Tindall. Congress' inherent contempt power has been
upheld by the Supreme Court numerous times. I don't think that
we need to return to arresting recalcitrant witnesses in order
to effectuate it. I think that a system of fines that could
bring the administration back to the table, bring the executive
branch back to the table could be very effective.
And the idea should be, just as with, you know, our
Criminal Code, the system of fines will be most effective if it
is never used. You know, the goal isn't to fine executive
branch officials. The goal is to create a credible threat that
forces them to the table to return to an accommodations process
that worked for many, many years, but has since broken down.
Mr. Chafetz. I just have one--you know, one way to sort of
effectuate the fines in a way that it does, to a large extent,
sort of keep this out of court, at least at the front end, is
that when we are talking about executive branch officials, we
are talking about people who are drawing a salary from the
Treasury, right? You can set up a system of fines so that they
simply don't get paid at all. And I think that is why I wanted
to sort of emphasize in my testimony the importance of using
the appropriations power, the power of the purse more
generally.
One area where I do disagree with Ms. Tindall is on the
hope of getting this through the courts in a satisfactory way.
I think both the timing, even on expedited procedures, of
trying to get these things through the court----
Mr. Perlmutter. It is a rope-a-dope.
Mr. Chafetz. And, frankly, the Federal judiciary has been
hostile to Congress for decades. It has been hostile to any
kind of assertion of congressional power. You see this as early
as the Senate Select Committee case in Watergate. You see it in
the Mazars opinion just last year. The Federal judiciary--the
Federal judiciary is pro executive and anti-Congress and it has
been for decades, and I think putting Congress' hopes in them
is largely [inaudible.]
Mr. Perlmutter. Just one more question, if I could.
So, Dr. Chafetz, you say, well, the citizenry is polarized;
therefore, we should be polarized. It is a very fatalistic kind
of conclusion. And, I mean, Abraham Lincoln talked about
knowing where people are. You can't just say, you know, we
really need to get there tomorrow and even though they are way
over here. You have got to recognize where they are and lead as
you can to a point that is positive, I guess.
And I think what we are trying to do on this committee in
these kinds of conversations is to be leaders towards back--
towards the civility, towards the collegiality, towards, you
know, coming up with solutions as opposed to arguments and
fights.
So, I mean, that is just how I kind of felt by your
remarks. And you are right, we are polarized as a Nation. It is
more than I have ever seen. But we have a responsibility not to
be appeasers, but to be leaders in trying to work together.
We had a funny experience yesterday, Mr. Timmons and I, in
the Financial Services Committee, where it had been a
completely bipartisan committee. I mean, you couldn't tell
whose witness was what. It was on cybersecurity, which is a
common concern of all of us. And it was funny, because most of
us understood, you know, we were just trying to get to the
elements of the cybersecurity, but the memo didn't quite get to
everybody on either side.
So the last couple guys who were asking questions, it was
like right out of the message machine, both sides. We turned to
each other and said, essentially, I guess they didn't get the
memo that this really is a bipartisan committee hearing. I
mean, we are so told to stay on message, and that message is a
very combative one.
Ms. Tindall. If I could just make one comment on that,
Senator Levin did bipartisan oversight for his entire 36 years.
And when he was on the Permanent Subcommittee on
Investigations, he started off with Susan Collins, had a very
bipartisan relationship. Everybody said, well, that is Susan
Collins. Then we had Tom Coburn come on our subcommittee, and
they all said, you are never going to be able to work with him.
They had a wonderful working relationship.
And that is really the good news about oversight is that
two Members, the ranking and the chair, can get together. And
it doesn't matter what anybody else is saying or doing, they
can choose to work together. They can order their staffs to
work together. And when that happens in good faith, you find
out the facts. Once you find out the facts, you might find out
solutions that are acceptable to both sides.
So oversight is an area where bipartisanship really can
work, because you just close the doors on what everybody else
is doing and have your staffs work together to find out the
facts. And that is why this hearing to me is so important.
Mr. Timmons. Can I jump in there real quick? Theoretically,
Congress could pass a law that said that if the ranking member
and chairman of the Oversight Committee issued a subpoena to a
Federal employee and that Federal employee refused to comply,
they would be denied compensation until they complied. Could
that happen?
Ms. Tindall. I think that would just go to the courts.
Whenever you have all of these things about imposing fines or
stopping appropriations----
Mr. Timmons. You could bar them from Federal property. I
mean----
Ms. Tindall. You know, but what would the courts do? And
would the courts say--and I don't think they have been
uniformly hostile to Congress. When you look at a number of the
decisions over the years, they have been very supportive of
Congress.
So I think that is why it is--you don't know what the
courts are going to do or what a particular judge is going to
do. So I don't know how they would analyze that, if they would
say a blanket, you know, whenever you don't comply with a
subpoena even if that subpoena is improper in some way.
Mr. Timmons. You can create a 30-day window with an
expedited appeals process.
Ms. Tindall. You know, there are all kinds of ideas like
that. I know Josh wants to----
The Chairman. But again, I mean, what does that look like?
Ms. Tindall, can you say a bit about what an expedited judicial
consideration would look like, and how do we legislate that?
Mr. Chafetz. I just wanted to come in on the initial
proposal, because I think, you know, one thing that it would
accomplish--you are right, it would wind up in court, because
anyone can sue about anything and it can always wind up in
court.
But the thing is, you are flipping sort of whose ox is
being gored while the process is going on. Right now, the House
issues a subpoena. The subpoena gets defied. Then the House
sues. Then the case takes 6 or 8 years. And then by the time it
is resolved, however it is resolved, everybody has forgotten
about it.
If you do something like withholding salary, then, yeah, so
the person whose salary has been withheld is going to sue. And
while they are suing, their salary is being withheld. That is
an incentive for them to cooperate, and I think that would be
[inaudible.]
Mr. Timmons. You could also facilitate an expedited appeals
process without taking 6 to 8 years. I mean, you could say,
when a congressional subpoena is denied, it takes priority over
the docket.
Ms. Bean. So, just so you know, that that is--how can you
legislate that? That is exactly what they have done. They have
said that you have to expedite any time there is a
congressional subpoena involved. And very cleverly, they also
required the Supreme Court and the Judicial Conference to write
rules for their courts to follow so that that expedition
happens.
Because I think that is very critical. If you don't have
rules that are in place, I think it wouldn't happen. That is
something new that hasn't been suggested before. As Josh has
said, there are all kinds of--you know, courts kind of ignore
the rules sometimes. You are never going to have a perfect
system, but there are ways to make it better than it is right
now.
Mr. Timmons. Yeah, but do we give the Supreme Court
original jurisdiction or remove an appellate process?
Ms. Bean. Well, actually, in the bill what they do is they
say, you can request a three-judge district court and then go
straight from there to the Supreme Court. So you would skip an
entire appellate level, which would save you a year or two. So
that is one of the proposals.
Mr. Chafetz. And that is modelled on things like there are
certain election law controversies that go straight to a three-
judge panel with an appeal to the Supreme Court. You couldn't
give the Supreme Court original jurisdiction, at least if we
think Marbury v. Madison was rightly decided. It says you can't
expand the Supreme Court's original jurisdiction.
But there would be ways to tell the courts to expedite
these cases. The question is just what the courts would do with
those. The courts have shown such an incentive or such an
interest in slow-walking these cases when they don't have to
that I am skeptical that you could write a statute that would
actually force the courts to decide these things on a really
tight timeframe, right, because Congresses only last 2 years.
Mr. Perlmutter. Withhold their pay too. Can I just ask a
basic question?
The Chairman. Yes, go ahead.
Mr. Perlmutter. I mean, how we in the legislative branch
say to the executive branch, so if somebody in Health and Human
Services isn't showing up, do we write a letter to Secretary
Becerra and say, you have got to withhold that person's pay,
that salary?
We are already at odds with the executive branch. He says,
I don't have to follow that. Well, then we are going to
withhold all of the money to go to Health and Human Services.
Is that how you see this working?
Mr. Chafetz. Well, there is a point at which, you know, if
the executive branch simply--I mean, you know, the Constitution
says that no money can be expended from the Treasury except in
consequence of appropriations authorized by law.
If the executive branch is willing to ignore that--and
there have been times that it has ignored that--then we are
sort of at a moment where, you know, law has basically run out,
right? We are at a moment where the executive branch has just
announced that it is willing to behave lawlessly. We are
borderline at a moment where there has been a coup.
And I know that is sort of strong language, but I would say
that, you know, the power of the purse has been understood from
the earliest days as the bedrock of congressional power.
Whatever else it needs to accomplish, it can accomplish that,
in part, by using its power of the purse.
And if you have a Treasury that is willing to disburse
money when those disbursals haven't been authorized by law or
are contrary to an Appropriations Rider, which are exactly the
same thing, then you have a situation in which our
constitutional order has fundamentally broken down.
Mr. Timmons [presiding]. Any final thoughts?
Ms. Tindall. I just wanted to draw out what Professor
Chafetz is saying here a little bit and respond to
Representative Perlmutter. You are right that we have a
challenge in the executive branch following through here.
And, Mr. Timmons, you are right that we have a challenge in
effecting the sort of penalties you were discussing, such as,
you know, barring someone from Federal property or deducting
their salary, because these things depend on the executive
branch.
And so I want to point you back to the inherent contempt
power, where you could establish a system of fines and a means
of executing them through a House resolution. You do not have
to depend on the executive and you could enforce it yourselves.
And that may be the way that you have to go.
Ms. Bean. I would just like to say there is a whole menu of
things that can be done, large and small, in the testimony that
we have given you.
I.think this idea of sending a letter to GAO to talk about options and
recommendations for setting up a system for Congress to actually make
up its mind in a bipartisan, bicameral way about certain legal
principles is a really important part of that changing norms, deciding
how Congress wants to operate. So I recommend doing that.
Mr. Chafetz. Nothing in particular.
Mr. Timmons. We are going to close it out. I would like to
thank our witnesses for their testimony today, and I would also
like to thank our committee members for participation.
Without objection, all members will have 5 legislative days
within which to submit additional written questions for the
witnesses to the chair, which will be forwarded to the
witnesses for their response. I will ask our witnesses to
please respond as promptly as you are able.
Without objection, all members will have 5 legislative days
within which to submit extraneous materials to the chair for
inclusion in the record.
This hearing is now adjourned.
[Whereupon, at 10:07 a.m., the committee was adjourned.]
[all]