New House Rules Promote Aggressive Congressional Oversight

The new Democratic majority has taken formal control of the House and has fortified congressional oversight power in its new rules package. At the same time, a lot of additional activity is happening at the committee-level as they each convene their organizational business meetings and finalize their subcommittee structure and staffing.

Most notably, the 116th Congress continued the recent trend toward removing practical barriers to compelling witnesses to appear for depositions by subpoena. Section 103 (pp. 22-23) of the new House rules provide:

(1) During the One Hundred Sixteenth Congress, the chair of a standing committee (other than the Committee on Rules), and the chair of the Permanent Select Committee on Intelligence, upon consultation with the ranking minority member of such committee, may order the taking of depositions, including pursuant to subpoena, by a member or counsel of such committee.

(2) Depositions taken under the authority prescribed in this subsection shall be subject to regulations issued by the chair of the Committee on Rules and printed in the Congressional Record.

This rule presents two significant developments promoting aggressive oversight.

First, the chairs of the standing committees and intelligence committee now all have the functional power to issue subpoenas unilaterally. An obligation to consult with the Republican ranking member falls far short of an obligation to agree. While there is an uneven historical record on this score over time and among committees, the prevailing practice in congresses of decades past was to authorize subpoenas by formal committee vote rather than to delegate the power to do so to the chair. After his tenure as chair of the House Committee on Oversight and Government Reform (now renamed the House Committee on Oversight and Reform to emphasize the broader mandate of the committee to investigate reforms in the private sector as well as government operations), Henry Waxman observed in a 2015 Washington Post op-ed:

In the past 60 years, only three chairmen have embraced issuing subpoenas without obtaining bipartisan or committee support: Sen. Joe McCarthy (R-Wis.), Rep. Dan Burton (R-Ind.) and Rep. Darrell Issa (R-Calif.). It is not a coincidence that these men led the most discredited, partisan and unfair congressional investigations in modern history.

Once confined to the oversight committee alone, successive new rules packages have continued to expand the number of committee chairs with that power. That trend toward unilateral, partisan subpoena power in the hands of committee chairs has continued its march, mirroring the increasingly polarized political environment. While this practice would stop a recalcitrant minority from hamstringing legitimate investigations, it risks facilitating partisanship in investigations of interest to the majority. It is also a practice that lets other members of the majority off the hook because they do not have to go on record for a roll call vote in committee to approve a subpoena. The Democrats are continuing down this path with this rule change. I hope the chairs will exercise that power responsibly.

Second, at the outset of the 114th Congress in 2015, I noted an earlier iteration of the trend towards staff-led depositions by the Republican majority:

Broadened Deposition Authority. Congress broadened its deposition authority and bandwidth by granting a number of committees the ability to have staff-conducted depositions rather than requiring a Member to attend. Specifically, Subsection (b) provides the Committees on Energy and Commerce, Financial Services, Science, Space, and Technology, and Ways and Means deposition authority to be conducted by a member or committee counsel during the first session of the 114th Congress. (Section 3, Separate Orders, Subsection (b)). The ability to proceed without Member-involvement will vastly increase these committees’ functional ability and bandwidth to conduct depositions; although I note that not much national security oversight jurisdiction is implicated.

When I worked on Waxman’s committee staff, and during my tenure in the White House Counsel’s Office responding to GOP-led committee investigations, the rule was that formal depositions required a Member to be present, and the subpoena power was limited to witness appearances at formal hearings or depositions. Given the Members’ travel schedules and other commitments, it was quite cumbersome. Therefore, the negotiations for appearances by executive branch and nongovernment witnesses typically resulted in the following bargain: a committee would withdraw a subpoena threat for a deposition if the witness would agree to a staff-led transcribed interview. The benefit of the bargain for Congress was the ability to dispense with Member attendance, and the witness obtained the benefit of a “voluntary” appearance as a formal matter — keeping the specter of contempt of Congress one step removed from an appearance compelled by subpoena.

Under the new rules, Congress no longer benefits to the same degree from the old compromise. Therefore, subpoenas are more likely to be the coin of the realm.

Two additional points are also worthy of note in the new rules:

First, I am unclear what role the Committee on Rules is supposed to play under the new rule. I do not recall a previous provision empowering the Rules committee to regulate deposition authority across committees. While the Rules committee is active and had its organizational business meeting on January 8th, as best I can tell it has not released any materials related to deposition authority regulations as yet.

Second, the Democratic majority granted oversight jurisdiction, but not subpoena authority, to the two new select committees it formed: The Select Committees on Climate Change and Modernization of Congress. If these committees meet an investigative obstacle requiring a subpoena, they may refer matters to primary committees of jurisdiction for compulsory process (See pp. 47-48, p. 53, respectively). One can assume that this was part of the compromise required by permanent committee chairs in order to support the creation of select committees that could encroach on their jurisdictional prerogatives. Nevertheless, it remains to be seen whether this cumbersome process for issuing subpoenas will make the new committees less effective, or whether it will have beneficial impacts of greater cross-committee cooperation on serious issues.

After tense negotiations and a subpoena threat, acting attorney general Matthew Whitaker has agreed to appear before the House Judiciary Committee for an oversight hearing in February. It will be the first of many such skirmishes between the two ends of Pennsylvania Avenue. These rules will strengthen the House oversight hand, and bargaining under the shadow of the new rules may already be having an effect.

IMAGE: Speaker of the House Rep. Nancy Pelosi (D-CA) holds the gavel during the first session of the 116th Congress at the U.S. Capitol January 3, 2019 in Washington, DC. (Photo by Mark Wilson/Getty Images).

  

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, Partner at K&L Gates, former Associate Counsel to the President in the White House Counsel’s Office. Follow him on Twitter (@AndyMcCanse).