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How to Fix Congressional Oversight

Congressional oversight has become an exercise in scoring partisan points or generating press releases. Here’s how to cure the problem.

January 15, 2015

It was an unseasonably warm, overcast March day in 2012, when Energy Secretary Steven Chu exited a House office building after his testimony before the House Oversight and Government Reform Committee. He was probably exhausted as he headed for his car.

With three edgy hours of Q&A with Rep. Darrell Issa (R-Calif.) and others finally over, what the Nobel Prize winner did not suspect was that he was being followed stealthily by Republican staffers. They snapped a picture of him getting into an SUV. Then Issa blasted Chu: “#hypocrisy,” he tweeted. Chu, it seemed, was riding in a gas guzzler.

Issa was being more than just rude. He was also wrong. Chu’s car was a flex vehicle that also ran on ethanol. And it was the car assigned to him for security reasons.

Perhaps Chu should have expected the tail and the personal attack. Earlier that month, Issa had threatened unnecessarily to subpoena him to testify. Issa rarely pretended that his energy hearings were open inquiries to uncover the facts. His Committee, after all, regularly gave its hearings conclusory titles like “How Obama’s Green Energy Agenda is Killing Jobs.” Reserving judgment was not the Committee’s operating procedure.

Welcome to 21st century congressional oversight, an unpredictable blend of partisan hackery, prosaic toil, and rare but extraordinary work (the Senate Intelligence Committee’s torture report).

As a new Congress dawns, it’s time to gear up for two years of “investigatory-pallooza,” as one former agency head appointed by President Obama called it. It’s inevitable, as we near a presidential election with a partisan split between the legislative and executive branches. It’s also highly doubtful that much of this forthcoming congressional oversight will be productive.

Congress far too often engages in oversight that is “lackadaisical” and caught up in the “gotcha cycle,” the former agency head added.

“Some hearings are worthwhile and uncover useful information, but others amount to an all-day exercise in congressional preening,” said Ron Weich, a former DOJ official and now dean of the University of Baltimore School of Law. Worse, a fair amount of it is “mere harassment,” he noted. So much so that another agency chief once turned to one of his aides during an oversight hearing and asked, “Why would anyone take this job again?”

One former high-ranking Department of Justice official said that during his time at the agency 20 percent of the oversight was effective; 40 percent was a wash; and 40 percent was political nonsense.

The failure of Congress to conduct comprehensive and effective oversight is shameful. With federal government spending at more than 23 percent of the gross domestic product and employing more than 2.5 million people, who doesn’t think that someone needs to mind the store? “Independent review is always valuable,” said Weich, who guided DOJ through the Fast and Furious hearings.

Worse, the type of oversight Congress conducts today is often counterproductive. It wastes valuable time, leads to minimal improvements, and inhibits good government. A former Department of Energy official told me that the agency’s staff was amazed at the “intensity of all the investigations” in the first four years of the Obama Administration. They felt beleaguered, even as they continued to do their jobs. But it hurt morale and made people excessively sensitive about internal communications.

Congress could conduct oversight seriously if it wanted to. One important first step would be to institutionalize the responsibility and to incentivize a bipartisan approach. Last year, I proposed that each Senate Committee be required to appoint a non-partisan Oversight staff director (with dedicated resources) and that Committee funding be withheld until that appointment was certified by both the Republican and Democratic heads of the Committee.

Why is this so important? It’s a corrective to two of the main barriers to good oversight: lack of knowledge and lack of reward. Most members of Congress “actually have no idea how the government functions,” a former high-ranking DOJ official from the Bush Administration said. Moreover, “political actors rarely get remembered for their oversight. They don’t get votes from conducting effective oversight,” he added. Put professional staff and funding in place to help do the job, and we might see a bit of a course correction.

But there is more Congress could do. A lot of it involves exercising self-control. There are no rules to enforce good judgment but here’s a quick checklist:

Remember the Goal: “The easiest but least useful form of oversight is Monday morning quarterbacking of an agency screw up. It’s hard to look at a tactical failure and decide it will inform substantive changes to the law,” said the former Bush Administration DOJ official.

Take Your Time: “It’s never a quick hit. If all you’re doing is sending a letter to send a press release, that’s not good oversight,” Weich said. Instead, when a committee takes its time and really gathers the evidence, subsequent recommendations have legitimacy.

Follow the Golden Rule: Do unto others as you would have them do unto you. Most members would “never tolerate routine communications between members and staff being subject to public exposure,” Weich said. When oversight is reduced to an effort to find an ill-considered phrase buried deep in piles of emails, you know effective oversight is not the goal.

Avoid the Cliches: You know there’s bad oversight ahead when members and staff start appending “gate” or “scam” to every investigation. It’s even worse when they start asking questions like “What did he know and when did he know it?”

Make it Bipartisan: When an inquiry was launched by both a Democrat and a Republican, we “took a good long look”, Weich, the former DOJ official, said. That doesn’t mean that investigations launched with the support of only one party inevitably are going to be partisan attacks. “Partisan things can have a good productive result,” the Republican DOJ source said. But when oversight starts off bi-partisan, the odds of productive hearings increase significantly.

As with much in our dysfunctional Congress, most of these solutions can be found only in that ineffable territory we call good judgment. Today, many members of Congress seem afraid to enter that land. Too many partisan forces drive them off.

We can only hope that a mild structural reform—the mandate that each committee hire unified, bi-partisan oversight staff—might help nurture a glimmer of wisdom.  After all, from small acorns….

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

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