[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]

This article discusses issues and recommendations originally outlined in Good Governance Paper No. 8: How to Strengthen Oversight by Congress.

Congressional oversight continues to play a vital role in efforts to ensure effective federal programs, intelligent spending of taxpayer dollars, and the U.S. government’s ability to respond to the country’s evolving conditions, needs, and values. The 117th Congress has seen a kaleidoscope of House and Senate oversight hearings on topics ranging from stopping COVID-related fraud to evaluating the environmental impact of cryptocurrency mining to investigating the January 6th attack on the U.S. Capitol.

Because other Good Governance Papers addressed key oversight issues like better enforcement of congressional subpoenas, our Paper focused on a more narrow set of seven recommendations. Five have seen concrete progress, primarily through the work of the House Select Committee on the Modernization of Congress (SCMC).

Congressional legal opinions on oversight matters. Our most important recommendation was that Congress develop a process for issuing bicameral, bipartisan legal opinions on oversight issues. The purpose is to create a counterweight to the Department of Justice’s Office of Legal Counsel (OLC) which has been issuing legal opinions on oversight issues for decades, invariably favoring the executive branch over the legislative branch. During the 116th Congress, the SCMC supported this reform, calling for increased “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.” (Recommendations 81-82.) During the 117th Congress, SCMC took the next step and sent a letter to the Government Accountability Office (GAO) asking it to offer options for creating a congressional OLC. GAO has indicated that it will initiate the requested study this spring. 

More time to question witnesses. A second proposed reform challenged the five-minute limit routinely placed on Member questions during oversight hearings, urging committees to consider other arrangements, such as allowing the chair and ranking member, at the beginning of each witness panel in an oversight hearing, to each question the panel for an equal time period of not less than 15 minutes. We recommended amending House Rule XI, clause 2(j)(2)(A) to encourage such alternative time limits as well as to explicitly permit any committee member to delegate their allotted time to another committee member. In the 116th Congress, the SCMC supported this reform by recommending that committees “experiment with alternative hearing formats to encourage more bipartisan participation.” (Recommendation 73.) While the House rule was not changed in the 117th Congress, the SCMC modeled compliance with its recommendation by successfully employing relaxed time limits during its hearings.

Joint compensation of committee clerks. Our third proposal was that the House follow the Senate’s lead and hire committee administrative staff, including clerks, on a bipartisan basis with their compensation split on a 50-50 basis between the majority and minority parties. The objective is to encourage the hiring of nonpartisan staff who answer to both sides of the aisle and save committee funds by hiring one nonpartisan clerk instead of two partisan ones. In the 116th Congress, the SCMC supported this reform by stating “Committees should hire bipartisan staff approved by both the Chair and Ranking Member to promote strong institutional knowledge … and a less partisan oversight agenda.” (Recommendation 74.) During the 117th Congress, the SCMC modeled compliance with its recommendation by hiring nonpartisan administrative staff, but House Rule X, clause 9 on committee staffing, has not yet been changed to mandate the practice.

Investigative techniques that build bipartisanship. Our next proposal encouraged committee use of bipartisan investigative techniques, such as staff on both sides of the aisle conducting joint document requests and interviews, designing hearings together, and drafting bipartisan committee reports. During the 116th Congress, SCMC strongly supported bipartisanship on House committees. In the 117th Congress, SCMC called for the House to “provide best practices and facilitate workshops that encourage bipartisan collaboration” and “explore bipartisan co-working spaces for staff.” (Civility Recommendations 8, 13.) Measuring progress on this reform is difficult, because it involves committee activity behind closed doors, and no mechanism tracks committee leaders directing their staffs to work together. A number of House oversight hearings during the 117th Congress seemed to enjoy quiet cross-party support, suggesting that bipartisan investigative techniques may be involved. A possible next step would be to amend House rules to state that committees should publicly commit to using bipartisan investigative techniques in oversight investigations.

Prohibit partisan committee websites. Still another of our recommendations was for the House to ban the use of partisan committee websites, in particular the practice of establishing a partisan website in a location completely separate from the committee website, which makes it difficult for constituents to learn about committee activities on both sides of aisle and may encourage partisan rhetoric. During the 117th Congress, SCMC partially adopted this reform, stating that “Committees should have a bipartisan, public-facing website with basic, nonpartisan information about the committee and its operations.” (Civility Recommendation 11.) Requiring bipartisan committee websites is not the same, however, as prohibiting partisan websites, so while concrete progress took place, additional work is needed to include the needed prohibition in House rules.

More oversight training for Members of Congress and staff. Our next proposal, to increase bipartisan training to show how Members and staff can use oversight investigations to bridge political divides while engaging in effective factfinding, also saw progress. During the 116th Congress, the SCMC repeatedly called for more training. (Recommendations 12, 15, 32, 63, and 80.) During the 117th Congress, the SCMC again supported better training. (Civility Recommendations 1-2.) In addition, during the 117th Congress, in response to SCMC Recommendation 12, New Member Orientation sessions contained more bipartisan events, including a session on oversight. The House also expanded the Congressional Staff Academy and began work on a Member-level Congressional Leadership Academy, though neither as yet offers any oversight training. In the meantime, the Levin Center (where we work), together with the Project on Government Oversight and the Lugar Center, has continued to offer twice yearly bicameral, bipartisan “oversight boot camps” for congressional staff and an annual oversight workshop for committee clerks. Over 100 staffers from both chambers and both parties apply for spots in our boot camps, signaling the ongoing demand for bipartisan oversight instruction.

Committee budgets that better reflect House composition. Our final recommendation was the most ambitious, urging the House to follow the Senate’s lead and allocate committee funding in proportions that better reflect the relative sizes of the majority and minority parties, rather than use the traditional one-third/two-thirds split between the parties. The purpose of this recommendation is to recognize the narrow majorities that now predominate in the House and prevent the dramatic funding and staffing shifts of the past that could lead to the loss of staff with oversight expertise. The House has yet to signal support for this recommendation.

Due primarily to the efforts of the SCMC, the House has made noticeable progress in strengthening its oversight capabilities. More is needed and could be on the horizon as the House increasingly recognizes the importance of its oversight role in ensuring good governance and safeguarding the balance of power between the branches.