[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


               ARTICLE ONE: STRENGTHENING CONGRESSIONAL 
                           OVERSIGHT CAPACITY

=======================================================================

                                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
                                
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                    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

                              ----------                              

                           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.]
    
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