Good Governance Paper No. 8: How to Strengthen Oversight by Congress

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]

Good Government Requires Good Oversight

Legislative oversight is fundamental to a sustainable democracy. Good government requires good oversight to ensure effective programs, intelligent spending of taxpayer dollars, and a government that can respond to the country’s evolving conditions, needs, and values.

When done well, fact-based, bipartisan congressional oversight can identify problems, build a shared understanding of complex issues, bridge political divides, and provide a factual foundation for reforms. It can advance the American system of checks and balances envisioned in the Constitution. It can play a vital role in curbing abuses that limit or undermine individual liberty and opportunity. Because oversight hearings also provide a key lens through which the public views Congress, by modeling responsible, competent governance, congressional oversight hearings can help increase public confidence in the institution.

But today multiple problems impede effective congressional oversight. They include the absence of Congress-wide oversight standards and norms, which leads to confusion, fragmentation, and disagreements among committees and Members. Partisan investigative topics often sour committee relationships, and Executive Branch defiance of congressional information requests breeds conflict. Also problematic are inexperienced and untrained investigative staff, and five-minute time limits on questions during hearings that not only make it hard for Members to obtain meaningful information but also may lead to disenchantment with oversight efforts.

When poorly done, oversight investigations can become a partisan brawl that deepens divisions, confuses the facts, and stymies reforms. Too often, highly partisan, fact-free oversight has damaged public faith in our democratic institutions while deepening public cynicism about elected officials. To strengthen government performance as well as increase its public standing, Congress needs to improve its oversight function.

Improving Oversight

We offer here six proposals – some easier, some harder to achieve – that hold promise for improving the state of oversight in Congress. Some require new House or Senate rules, others necessitate changes in practice, but none require a new statute.

Congressional legal opinions on oversight matters. One key reform involves Congress developing a process for issuing bipartisan legal opinions on oversight issues. For decades, the Department of Justice (DOJ) Office of Legal Counsel (OLC) has been issuing official legal opinions that provide guidance to Executive Branch agencies on how to respond to information requests from Congress and offer principles to courts on how to adjudicate interbranch conflicts. It is no surprise that those OLC opinions invariably favor the Executive Branch over the Legislative Branch, one stark example being OLC opinions that claim senior presidential advisors are immune to congressional subpoenas, the exact opposite of the conclusion reached by courts that have ruled on the issue. Criticisms related to excessive secrecy, bias, and overreach in OLC opinions on congressional oversight issues have also been growing.

DOJ has nevertheless continued to use its OLC opinions not only to unify how federal agencies respond to Congress, but also to try to persuade courts to favor the Executive Branch over the Legislative Branch when disputes arise. For too long, Congress has allowed those OLC opinions to remain unanswered. Neither the House nor Senate has an equivalent process or set of official legal opinions to provide guidance to congressional committees, federal agencies, or the courts on matters related to oversight. If Congress were to establish such a process and use it to issue thoughtful, well-supported, and bipartisan legal opinions on oversight matters, Congress could help establish its own oversight norms, educate Members and staff, increase uniformity among congressional committees, inform the Executive Branch of its oversight expectations, and advance oversight effectiveness. The opinions would also strengthen the hand of Congress in court.

The House Select Committee on the Modernization of Congress recently issued a set of bipartisan recommendations that, among other matters, advocate (in Recommendations 81-82) increasing “legal resources” to “help strengthen the role of the legislative branch” and facilitate a “true system of checks and balances by ensuring the legislative branch is sufficiently represented in the courts.” Those recommendations provide a foundation for Congress finally establishing a process to issue bipartisan, bicameral legal opinions on oversight matters suitable for citation in court. A good first step would be for the 117th Congress to establish a bipartisan, bicameral task force to design and propose what that process should look like.

More time to question witnesses. A second, much easier reform proposal focuses on how Members of Congress question witnesses during investigative hearings. Right now, the five-minute limit routinely placed on Member questions during oversight hearings too often diminishes the gravity and coherence of the sessions, leaves Members of Congress struggling to get answers to their questions, and gives the impression that legislators are rude or insensitive to witnesses. Short-duration questioning also produces abrupt topic changes that can make an oversight hearing seem confusing or even chaotic. The resulting exchanges are not conducive to producing a useful hearing record or promoting public respect for the institution.

House and Senate rules could be amended to encourage committees, at the beginning of an investigative hearing and the start of each witness panel, to approve question periods that extend beyond the five-minute segments typical of most House hearings. For example, House rule XI, clause 2(j)(2)(A), could be amended to allow committees holding an oversight hearing to permit the chair and ranking member, at the beginning of each witness panel, to each question the panel for an equal time period of not less than 15 minutes. After the initial round of questioning, the rule could require the committee to apply the five-minute rule until every committee member seeking to question the witness has an opportunity to do so. The rule could also be amended to explicitly permit any committee member to delegate their five minutes to another committee member.

The 116th Congress has already shown, on an ad hoc basis, how longer questioning periods can contribute to more coherent and decorous hearing exchanges. During the recent Senate hearings to consider a Supreme Court nomination, for example, each Senator was given a 30-minute period to question the nominee. The resulting respectful exchanges would have been difficult under a five-minute rule. On the House side, during the Intelligence Committee impeachment hearings, the majority and minority were each given a 45-minute block of time at the beginning of each session to question the witnesses. The longer periods enabled committee leadership to ask a series of questions to clarify the testimony provided and follow through on the points they wanted to make. The longer periods also made it easier to establish facts, explore important details, and prevent witnesses from engaging in evasive tactics. While the impeachment proceedings were marred by other problems, the longer questioning periods appear to have elicited better information and fewer uncomfortable moments than would have been possible using five-minute segments.

This relatively easy procedural change has the potential to deliver better outcomes for both committee members and observers of congressional oversight hearings.

Joint compensation of committee clerks. A third reform is more mundane, though no less valuable. Each House and Senate committee employs administrative staff, such as clerks, who provide support for congressional investigations. They are the unsung staff who send out the subpoenas, log in the documents, type up reports, compile hearing records, and archive investigative materials.

Currently, on some House committees and subcommittees, the majority and minority staffs each hire their own administrative personnel, meaning there are often two clerks, each hired on a partisan basis, to handle similar administrative duties. These House administrative personnel know they answer to only one party. In contrast, in the Senate, the committee and subcommittee majority and minority staffs jointly hire their administrative personnel and typically split their compensation on a 50-50 basis. Senate administrative personnel know they are paid by both parties and thus answer to both sides. The Senate approach has strengthened its committees by saving them money (through hiring fewer clerks) and encouraging a more bipartisan, even-handed administration of oversight activities.

To discourage partisanship within its committees, the House should consider adopting the Senate practice. The House Modernization Committee has already paved the way for this reform by advocating (in Recommendation 74) that committees “hire bipartisan staff approved by both the Chair and Ranking Member to promote strong institutional knowledge … and a less partisan oversight agenda.” The resulting salary savings would be an added benefit.

Investigative techniques that build bipartisanship. A softer set of reforms focuses on investigative techniques that foster bipartisanship in congressional oversight inquiries. They begin with a committee chair and ranking member making a public commitment to a bipartisan investigation and instructing their staffs to work together in good faith to reach consensus on the facts. Investigative techniques that encourage bipartisan factfinding should follow. Examples include both sides of the aisle issuing only joint document requests; jointly attending key briefings and interviews to ensure everyone hears the same information at the same time; producing joint post-interview summaries to ensure a common understanding of what was said; and drafting joint investigative reports to cement consensus on the facts or at least narrow differences. Still another tactic is to issue only joint press releases, with at least one quote from each side of the aisle, again to uncover and resolve differences.

These techniques are not pie-in-the-sky wishful thinking. For years, the Senate Permanent Subcommittee on Investigations (PSI) has used them to conduct some of the best investigations in Congress. PSI leaders like Senators Carl Levin (D-MI), Tom Coburn (R-OK), Bill Roth (R-DE), Sam Nunn (D-GA), Susan Collins (R-ME), Rob Portman (R-OH), and Tom Carper (D-DE) routinely committed their staffs to joint investigations, because PSI’s track record and traditions had proven that bipartisan investigations were superior. The inquiries had shown that staffers who held fundamentally different views but investigated together asked more questions, examined more issues, and engaged in more challenging conversations with each other about what really happened and why. Using that bipartisan process to reach consensus on the facts is neither quick nor easy, but when motivated by leaders who insist on their staffs working together, it can produce fact-finding that is more accurate, thorough, thoughtful, and credible.

Enshrining bipartisan investigative techniques in House and Senate rules may not be practical, though the House Modernization Committee (in Recommendations 75-76) has called for “bipartisan pre-hearing committee meetings” and the piloting of “rules changes that could have a positive effect committee-wide.” Perhaps one initial step in this area would be to ban partisan committee websites and to require joint press releases prior to an oversight hearing. In the meantime, committee leaders don’t have to wait for a rule change to adopt investigative techniques that produce the gold standard of congressional oversight – fact-based, bipartisan inquiries.

More training for Members of Congress and staff. The bipartisan investigative techniques advocated here often do not come naturally to congressional staff or Members of Congress; they benefit from training and support.

An expanded Congressional Staff Academy, supported by the House Modernization Committee, as well as the Senate Office of Education and Training could provide the needed staff training opportunities. The Levin Center, together with the Lugar Center and the Project on Government Oversight, already holds regular bipartisan training sessions called “boot camps” to hone the skills needed to conduct fact-based, high-quality inquiries. Those two-day boot camps combine staff from the House and Senate, and from both parties, in investigative exercises that have trained more than 250 staffers to date. In recent years, would-be participants have submitted over 100 applications for the 25 spots available in each boot camp, demonstrating the strong demand for oversight training. The House Modernization Committee has already called for (in Recommendations 32, 33, & 63) an increase in “bipartisan learning opportunities for staff,” “bipartisan committee staff briefings,” and staff certifications in congressional skills. The 117th Congress should consider taking concrete steps to create those bipartisan training and certification opportunities.

Similar considerations apply to Members of Congress assigned to oversight committees. While some may have conducted oversight on the state or local level, or can draw on prosecutorial or other legal expertise, for many Members oversight investigations require a new skill set. Even a short oversight seminar at a new Members orientation session or Congressional Research Service retreat could help – especially if that seminar were bipartisan.

Committee budgets that better reflect House composition. This final reform suggestion – which enjoys bipartisan support – is a big one. It stems from the reality that the country is politically divided, and voters are producing narrow majorities in both the House and Senate in the range of 55, 52, or 51 percent. At the same time, the House has chosen to continue to allocate two-thirds of committee funding to the majority party and only one-third to the minority. Today, that means a House majority of 53% gets 67% of the available committee funding. While that funding split may look good to the majority party today, that perception will change if a small political shift leads to a different House majority tomorrow. Under the current approach, a change in party control threatens dramatic funding changes and abrupt staffing shifts, including the loss of staff with oversight expertise.

The Senate, in contrast, long ago replaced the one third-two thirds funding split between the parties with a committee allocation process that more closely reflects the actual composition of the majority and minority parties in the Senate. The resulting division of committee funds is not only fairer, it is generally less disruptive to committees when majorities shift, including committees exercising oversight authority. To reap the same benefits, the House should consider a similar committee funding allocation process.

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This list of ways to strengthen Congress’ capacity to conduct effective oversight is far from exhaustive. For example, another vital reform already addressed in this series involves strengthening Congress’ ability to enforce its subpoenas. But all investigative improvements first require that Congress acknowledge the urgency and promise of better oversight. As Senator Levin once put it: “You can’t get good government without good oversight.” 

About the Author(s)

Jim Townsend

Director of the Levin Center at Wayne Law; former congressional staffer and Michigan state legislator. Follow him on Twitter (@JimTownsend).

Elise Bean

Washington Co-Director at Levin Center at Wayne Law, former Staff Director and Chief Counsel of the U.S. Senate Homeland Security and Governmental Affairs Committee's Permanent Subcommittee on Investigations. Follow her on Twitter (@elisejosanbean).