Article One: Strengthening Congressional Oversight Capacity
Summary
This is a hearing before the Select Committee on the Modernization of Congress of the House of Representatives, titled Article One: Strengthening Congressional Oversight Capacity, on November 4, 2021. The contents list opening statements by Chairman Derek Kilmer and Vice Chairman William Timmons and witnesses Josh Chafetz, Professor, Georgetown University Law School; Elise Bean, Washington Director, Levin Center at Wayne State University Law School; and Anne Tindall, Counsel, Protect Democracy. In the discussion, Bean recommends sending a letter to GAO about options and recommendations for a system for Congress to decide certain legal principles in a bipartisan, bicameral way. Members are given 5 legislative days to submit written questions and extraneous materials.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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- Congressional materials
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- Case
- Chrg Chrg 117Hhrg48604 Chrg 117Hhrg48604
Cite this document
“Article One: Strengthening Congressional Oversight Capacity.”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/chrg-chrg-117hhrg48604-chrg-117hhrg48604/
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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
(
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
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CONTENTS
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
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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 meaning-
ful and lasting ways to rebuild capacity and strengthen the legisla-
tive branch. Today’s hearing continues this work and puts that Ar-
ticle 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. Be-
tween 1946 and 1997, an average of eight new agencies were cre-
ated 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 Fed-
eral 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 Con-
gress is constitutionally entitled to obtain.
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There is nothing inherently partisan about oversight. Timely ac-
cess to the information that Congress needs to fulfill its constitu-
tional obligations is in the interest of both parties. I know our wit-
nesses today have some recommendations for fast tracking re-
quests, 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 be-
half of the American people, Congress needs to know whether the
policies and programs it authorizes and funds are working as in-
tended.
Oversight provides members with the information and
agency†level feedback they need to make sound legislative and fis-
cal 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 ex-
tended back†and†forth exchanges between members and the wit-
nesses. 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 in-
dividual 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 impor-
tant issue. Really, in the last 20 years, we have seen a hyper par-
tisanship, and it is—we have talked a lot about it in terms of civil-
ity, 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 re-
institute the purpose of the role of Congress as it relates to over-
sight, 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 infor-
mation that we can learn from on the subject and I am looking for-
ward to hearing more about it.
But I am going to go ahead and throw out one thing. I had a
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meeting yesterday with somebody that started his career on the
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Hill in 1974, and it was very interesting. He was on the Appropria-
tions 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 re-
search interests include constitutional law, American and British
constitutional history, legislation and legislative procedure, and the
intersection of law and politics. His recent book, ‘‘Congress’’ Con-
stitution: 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, ‘‘dili-
gently 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 investiga-
tion 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, in-
cluding in the 1946 Legislative Reorganization Act’s mandate that
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standing committees exercise continuous watchfulness of the agen-
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cies 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 opin-
ion blessing a broad power of congressional oversight in McGrain
v Daugherty.
The recent years have seen congressional demands for informa-
tion 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 informa-
tion.
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 set-
tled 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 re-
main 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 ex-
ecutive 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 ad-
vised to think about how the power of the purse can be used in the
service of oversight. Money can only be dispersed from the Treas-
ury 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 de-
mands.
The simplest and in some sense crudest version of this is purely
retrospective: If an administration stonewalls an information de-
mand, then Congress makes it pay in the next appropriations cycle,
perhaps by slashing funds for a misbehaving agency or even zero-
ing 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 cre-
ate 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 applica-
tion 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
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and explain that.
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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 informa-
tion could automatically trigger cuts either to the underlying ap-
propriation itself or to the salaries of the noncompliant firms.
And such riders could make use of non†severability clauses, so
that if OLC were to declare, as it has done on a number of occa-
sions, 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 de-
terminations.
Those suggestions I have just made rely on the threat of with-
holding 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 con-
gressional capacity, and the fiscal year 2022 leg branch appropria-
tions bill passed by the House is a good start, but more could cer-
tainly 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 think-
ing about methods of enforcing information demands is sorely need-
ed, 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:]
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The CHAIRMAN. Thanks, Dr. Chafetz.
Our next witness is Elise Bean. Ms. Bean is the Washington Di-
rector 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 Fed-
eral, 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 sys-
tem 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 over-
sight authority, procedures, staffing, but I would like to concentrate
on just one particular recommendation that has to do with the abil-
ity 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 posi-
tion. 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 Con-
gress 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 bipar-
tisan 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
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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 pos-
sible, 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 Presi-
dent, 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 sim-
ply ignore it. I think both sides of the aisle would agree that minor-
ity 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 proce-
dure, 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 en-
forcement of congressional subpoenas in court. Josh is absolutely
right that it has been very difficult over the last few years, proc-
esses almost broken down, and there are a lot of things that Con-
gress could do to improve it.
There is a bill that has been introduced, the Protect Our Democ-
racy 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 devel-
oped 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:]
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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 Fed-
eral and State level. Prior to joining Protect Democracy, she served
as assistant general counsel for litigation and oversight at the Con-
sumer 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, mem-
bers of the select committee, thank you for the opportunity to tes-
tify at this timely hearing.
At Protect Democracy we work to prevent and respond to threats
to our democratic system for those acutely concerned with pre-
senting abuses of executive power and reinvigorating Congress’
ability to function as an effective check on the President, which re-
quires being able to compel compliance with this demand for infor-
mation.
Today I will address two opportunities for strengthening congres-
sional 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 con-
gressional staff.
There are three ways in which Congress can force the executive
branch to comply with its oversight demands: Civil contempt litiga-
tion 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 three†judge panel convened at Congress’ request and review-
able only by direct appeal to the Supreme Court. Protect Democ-
racy 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 re-
quests, and it hands decision†making authority to the courts,
which have never given Congress an unequivocal win at disputes
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29
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 negoti-
ating 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 Su-
preme 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’ in-
herent contempt powers and turn them into a credible lever for
compliance. And unlike expedited civil litigation, it could be ef-
fected simply through a change in the House rules. The congres-
sional 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 informa-
tion 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 en-
sure that members have staff to support effectively in their over-
sight of the Federal government’s most sensitive and consequential
programs.
I want to close with a compliment and a warning. The most im-
portant thing Congress could do to strengthen its hand in oversight
is to follow the example set by this committee, which has com-
mitted 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 increas-
ingly 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 de-
fending 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 de-
fense of the first branch’s constitutional authorities.
Thank you, and I look forward to your questions.
[The statement of Ms. Tindall follows:]
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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 over-
sight.
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 appro-
priately.
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 legisla-
tive 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 over-
sight, 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 Repub-
lican 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 recommenda-
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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 Organi-
zation responded by withdrawing their pain relief recommenda-
tions, which had recommended very strong opioids very early in the
process, and that was just two offices working together on over-
sight. 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 Investiga-
tions. 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 commit-
ment 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 inter-
action. 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 any-
thing 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 ac-
tually does go on, and the Levin Center has done tremendous work
tracking that. And it is consistent with a small but real body of po-
litical 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 pos-
sible. 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 increas-
ingly 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
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And sort of further than that, you know, oversight is one—so,
you know, the two kinds of oversight that you mentioned at the be-
ginning, 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 sepa-
rated 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 an-
other 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 im-
peachment 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 rec-
ommendations on that. But I wouldn’t want us to say that just be-
cause 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 Pro-
fessor Chafetz that partisan oversight does not have to be an
empty affair, but I do think some of the recommendations this com-
mittee has made over the structure of oversight hearings could re-
duce 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 dis-
putes 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
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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 abil-
ity 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 be-
tween 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 author-
izing committees. And the answer to that is, all of those other com-
mittees have a lot of legislative responsibilities. An Oversight Com-
mittee 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 responsibil-
ities. 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 im-
prove it.
Mr. TIMMONS. In your experience, do authorizing committees fa-
cilitate or help the full committee on oversight with its pursuit of
information? I mean, theoretically they are going to have better re-
lationships, better subject matter experts, and they might be able
to more effectively pursue information. Is that something that hap-
pens 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 rela-
tionships with their agencies, and they develop very strong agen-
cies, sometimes even agency capture, and they don’t want to help
an Oversight Committee that is pointing out problems. So it is a
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Mr. TIMMONS. When the full Oversight Committee pursues infor-
mation, 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 op-
posed 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 re-
quests 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 fundamen-
tally 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 accu-
rate, 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 dis-
parate 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, Appro-
priations Committee of one House feels very strongly about a par-
ticular rider that there is a decent chance they can get that into
the final bill, because what is the alternative, right, if you are actu-
ally 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 Presi-
dent 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 in-
sist 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 polit-
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51
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 Presi-
dent, hey, you don’t have to respond to any oversight demands
from anyone ever, maybe the American people don’t need to be pay-
ing 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 Com-
mittee last year—is it is important to try to return to regular budg-
eting order. It is important to try to bring back that process, be-
cause 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 par-
tisan 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 con-
trol over spending. But I think the check on sort of specific de-
mands here is a political check. It is that ultimately when you are
doing these things, you are setting up a political fight. You are set-
ting 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 plau-
sible 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 set-
tles 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
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52
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 but-
ton? 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 be-
fore. 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 exer-
cise 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 bet-
ter, because I remember when, you know, I was told Chairman
Dingell used to exercise his own oversight when he had proxy capa-
bility. 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 bi-
partisan 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 Sen-
ate in the 1930s, which was the Munitions Committee or the Mer-
chants 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
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tiness is cross-partisan, so there are factions of both parties fight-
ing 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 Con-
gress as an institution can do to turn down the temperature in
Congress, but the truth is that the American public is more polar-
ized than it has been in over a century along political lines. And
if the American public is polarized, we not only should expect Con-
gress to be polarized, in some sense we should want it, right, be-
cause 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 under-
lying public is the American people that have been getting increas-
ingly 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 an-
swer, 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, leader-
ship 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 some-
thing about bipartisan, fact-based oversight in the Congressional
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54
Ms. BEAN. Or you can just send people to our, you know, over-
sight 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 En-
ergy 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 Com-
merce 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 ful-
filling 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 ma-
jority 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 over-
sight 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
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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 ex-
cept that, yes, you know, precedents can be important, but they
also are not sort of determinative, right? The ways in which Mem-
bers 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 thumb-
ing 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 adminis-
tration, 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 sub-
poenas. 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 ef-
fectuate it. I think that a system of fines that could bring the ad-
ministration back to the table, bring the executive branch back to
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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 ef-
fectuate 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 testi-
mony 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 hos-
tile to Congress for decades. It has been hostile to any kind of as-
sertion of congressional power. You see this as early as the Senate
Select Committee case in Watergate. You see it in the Mazars opin-
ion 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; there-
fore, we should be polarized. It is a very fatalistic kind of conclu-
sion. 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 bi-
partisan 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
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57
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 to-
gether. 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, be-
cause 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 ap-
propriations——
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 consid-
eration 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
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58
poena. The subpoena gets defied. Then the House sues. Then the
case takes 6 or 8 years. And then by the time it is resolved, how-
ever 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 dock-
et.
Ms. BEAN. So, just so you know, that that is—how can you legis-
late that? That is exactly what they have done. They have said that
you have to expedite any time there is a congressional subpoena in-
volved. 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 ap-
pellate 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 cer-
tain 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 Su-
preme 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 skep-
tical that you could write a statute that would actually force the
courts to decide these things on a really tight timeframe, right, be-
cause 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 Serv-
ices 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
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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 con-
sequence 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 mo-
ment 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 con-
trary 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 Perl-
mutter. 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 ef-
fecting 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 exe-
cuting them through a House resolution. You do not have to de-
pend 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, BI-
CAMERAL WAY ABOUT CERTAIN LEGAL PRINCIPLES IS A REALLY IM-
PORTANT PART OF THAT CHANGING NORMS, DECIDING HOW CON-
GRESS 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 with-
in which to submit additional written questions for the witnesses
to the chair, which will be forwarded to the witnesses for their re-
sponse. I will ask our witnesses to please respond as promptly as
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60
Without objection, all members will have 5 legislative days with-
in 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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