Introduction to Congressional Oversight and the Oversight Manual

Writing in 1993, the Joint Committee on the Organization of Congress defined congressional oversight as the "review, monitoring, and supervision of the executive and the implementation of public policy."¹ This definition captures the functional core of Congress's oversight of the executive branch. Nonetheless it is the beginning, rather than an end, of understanding oversight as it has been practiced since the First Congress. As outlined in this manual, the purposes, practice, and tools of congressional oversight extend far beyond the confines of a simple definition.

The Oversight Manual

CRS has published the Congressional Oversight Manual since 1978. In that time, it has been one of the most comprehensive resources for information on congressional oversight and benefited from the experience and knowledge of dozens of CRS experts. Since it was first published, the work of Congress and the resources available to conduct oversight have significantly changed. For instance, the spread of interconnected information technology systems and the development of the internet allow for more rapid and wide-scale collection and preservation of information about the activities of the government and have significantly increased the availability of that data to both the public and Congress. In addition, Congress has developed a wide array of management, oversight, and transparency laws that facilitate oversight, create internal controls within the executive branch, and bring more government data to the public eye.²

CRS's primary goal with the Oversight Manual is to provide an overview of oversight practice that is useful to congressional stakeholders with varying experience. For those new to the Hill, the Oversight Manual serves as a broad introduction to the rules and techniques of effective oversight and the array of options available to Congress and its Members. For more experienced hands, the Oversight Manual's broad coverage should make it a useful desk reference for existing oversight techniques and recent developments on relevant issues.

How to Use This Manual

The Oversight Manual is intended to be a guidebook for congressional oversight. To that end, while it is designed to allow for cover-to-cover reading, CRS understands that many readers will be looking for specific information relevant to particular oversight activity. Therefore, CRS has organized the Oversight Manual in a manner that will allow for easy navigation from the table of contents.

A large share of the Oversight Manual is devoted to a technical discussion of the legal and procedural parameters of Congress's oversight activities and a survey of certain well-established techniques and tools. The initial sections provide a more general discussion of oversight, including its purposes and a high-level review of the oversight process.

This manual covers a wide variety of topics related to oversight, although it may not discuss every potential oversight issue or provide a precise answer to every question. This is particularly true when it comes to two topics that receive frequent attention. The first is what might be thought of as the "art" of oversight,³ including decisions such as the selection of oversight priorities and strategies. Such decisions turn, in large part, upon the expert judgment of Members and committees as to how their time and other resources would be best spent.

The second subject involves potential ways to adjust the laws and chamber rules governing oversight. The Oversight Manual focuses on current oversight practices. CRS experts are available to answer specific questions related to any aspect of oversight, to support specific oversight activities, and to discuss potential adjustments to the rules and practices that enable oversight.

Defining Oversight

Oversight is an activity that can be defined in many different ways. For instance, CRS has defined congressional oversight as the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation.⁴

Along similar lines, the Legislative Reorganization Act of 1946 directed that standing committees

shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that purpose, shall study all pertinent reports and data submitted to the Congress by the agencies in the executive branch of the Government.⁵

This language could be taken to support a more formalist approach to oversight that was common during that era.⁶ Today many observers would likely find this definition of oversight too limiting given the development of new oversight channels such as offices of inspector general, increased online transparency, and real-time reporting on government activity. Therefore, a slightly broader definition, such as the one offered by the political scientist Joel D. Aberbach, might better reflect the modern understanding of the activities that make up congressional oversight. Aberbach defines oversight as

congressional review of the actions of federal departments, agencies, and commissions and of the programs and polices they administer, including review during program and policy implementation as well as after the fact.⁷

The next two parts of this section introduce two additional frameworks that readers may find useful when thinking about the variety of oversight techniques and strategies available to Congress.

The Oversight Toolbox

Much of the organization of the Congressional Oversight Manual is based on the idea that congressional oversight is a collection of tools and techniques that allow Congress to monitor the executive branch and gather information on its activities. This instrumental approach may make it particularly useful for oversight practitioners tasked with identifying potential issues and developing and executing effective oversight strategies.

The goals of oversight are usually built around either successfully investigating a specific issue or creating a general environment of accountability and transparency between Congress and the executive branch. Depending on the situation, it may be possible to achieve these goals through a variety of strategies, and their selection can be thought of as picking the best tool for the job.

Police Patrols and Fire Alarms

Writing in 1984, the political scientists Mathew McCubbins and Thomas Schwartz proposed a model for organizing congressional oversight activities that remains a useful tool for understanding oversight.⁸ In their article, the authors define two broad categories of congressional oversight: "police patrols" and "fire alarms."

Police patrol oversight occurs when Congress, on its own initiative, "examines a sample of executive-agency activities, with the aim of detecting and remedying any violations of legislative goals and, by its surveillance, discouraging such violations."⁹ This strategy involves regular and general oversight activity by Congress and is consistent with a classic understanding of legislative oversight being conducted directly by committees and Members. One example of this type of oversight is the agency budget hearings held on an annual basis by the appropriations subcommittees in both houses. Those hearings provide committee members an opportunity to question leaders about the performance of their agencies, plans for the future, and specific issues of concern.

Fire alarm oversight, on the other hand, occurs when "Congress establishes a system of rules, procedures, and informal practices that enable individual citizens and organized interest groups to examine administrative decisions, to charge executive agencies with violating congressional goals, and to seek remedies from agencies, courts, and Congress itself."¹⁰ Fire alarm oversight creates a system that fosters transparency and uses other stakeholders and experts to monitor more activities with greater depth than Congress could on its own. When potential problems are identified, the expectation is that Congress will be better able to respond by focusing attention on known issues and working from expert analysis that has already been conducted.

A relatively recent example of the role fire alarms can play in congressional oversight is the response to the 2014 disclosure of significant wait times for care in some Veterans Health Administration facilities and the deaths of veterans waiting for care on those lists. Media outlets, including CNN,¹¹ as well as the Department of Veterans Affairs Office of Inspector General reported on these issues.¹² Once Congress was aware of the severity of the issues with the Veterans Health Administration, Members responded with broad, bipartisan investigations into the agency's performance and passed legislation seeking to address key findings.¹³

The Purposes of Oversight

Congress has engaged in oversight throughout its history. Investigating how the executive branch enforces laws, spends appropriations, and implements policies enables Congress to assess whether federal agencies and departments are operating in an effective, efficient, and economical manner and to gather information that may inform legislation. The expansion of the national government and bureaucracy has only increased Congress's need for and use of oversight to check on and check the executive.¹⁴ This "checking" function serves to protect Congress's policymaking role and its place under Article I in the U.S. constitutional system of checks and balances.

Congress's oversight role is also significant because it shines the spotlight of public attention on critical issues, which helps both lawmakers and the general public to make informed judgments about executive performance. Woodrow Wilson, in his classic 1885 study Congressional Government, emphasized that the "informing function should be preferred even to its [lawmaking] function." He added that unless Congress conducts oversight of administrative activities, the "country must remain in embarrassing, crippling ignorance of the very affairs which it is most important it should understand and direct."¹⁵

Oversight occurs in virtually all the activities of Congress and its Members and through a wide variety of channels, organizations, and structures. These can include formal committee hearings and informal Member contacts with executive officials, as well as casework performed by Members, reviews and studies by staff and congressional support agencies, reports prepared by executive branch agencies, and studies prepared by nongovernmental entities such as academic institutions, private commissions, or think tanks.

Former Congressman Lee Hamilton succinctly stated that the purpose of oversight is to "determine what happens after a law is passed."¹⁶ Some of the main purposes achieved in making that determination are outlined below.

Ensure Executive Compliance with Statutory Requirements and Legislative Intent

Congress delegates substantial discretionary authority to agency officials to engage in rulemaking and the management of the administrative state. To ensure that these officers faithfully execute laws according to the intent of Congress, committees and Members can review the actions taken and regulations formulated by departments and agencies.

Improve the Efficiency, Effectiveness, and Economy of Governmental Operations

A large federal bureaucracy makes it imperative for Congress to encourage and secure efficient and effective program management and to make every dollar count toward the achievement of program goals. A basic objective is strengthening federal programs through better managerial operations and service delivery. Such steps can improve the accountability of agency managers to Congress and enhance program performance.

Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud

Instances of fraud and other forms of corruption, wasteful expenditures, incompetent management, and the subversion of governmental processes can provoke legislative and public interest in oversight.

Evaluate Program Performance

Systematic program performance evaluation remains an evolving technique of oversight. Modern program evaluation uses social science and management methodologies—such as surveys, cost-benefit analyses, and efficiency studies—to assess the effectiveness of ongoing programs. Information about program performance may be useful to Congress as it makes decisions about the structure of government programs and the amount of funding they will receive.

Prevent Executive Encroachment on Legislative Prerogatives and Powers

Many commentators, public policy analysts, and legislators state that Presidents and executive officials may ignore or misinterpret congressional intent in various areas, such as the impoundment of funds, executive privilege, and war powers.¹⁷ Increased oversight—as part of the constitutional checks and balances system—can redress what many in the public and Congress might view as executive arrogation of legislative prerogatives.

Gather Information for Potential Legislation

One of the major functions of Congress involves developing, debating, and passing legislation. Congress gathers information to support its legislative work from a variety of sources, and information gathered from agencies in the process of oversight can be an important part of that process. Senator Sam Ervin described the importance of oversight to legislating as follows:

The Constitution and statutes give Congress a solemn duty to oversee the activities of the executive branch. How else can Congress fully comprehend whether existing laws are adequate and properly administered? How else can Congress determine what specific additional laws are need to guide the nation?¹⁸

Assess Agency or Officials' Ability to Manage and Implement Program Objectives

Congress's ability to evaluate the capacity of agencies and managers to carry out program objectives can be accomplished in various ways. Numerous laws require agencies to submit reports to Congress. Some of these are regular, occurring annually or semiannually, for instance, while others are activated by a specific event, development, or set of conditions. Reporting requirements may promote self-evaluation by the agency. Organizations outside of Congress—such as offices of inspector general, the Government Accountability Office (GAO), and expert commissions—also advise Members and committees on how well federal agencies are working.

Review and Determine Federal Financial Priorities

Congress exercises some of its most effective oversight through the appropriations process, which provides the opportunity to assess agency and departmental expenditures in detail. Most federal agencies and programs are required to receive recurring reauthorizations—on an annual, two-year, five-year, or other basis—giving authorizing committees the opportunity to review agency activities, operations, and procedures. As a consequence of these oversight efforts, Congress can abolish or curtail obsolete or ineffective programs by cutting off or reducing funds. Congress might also increase funding for effective programs.

Protect Individual Rights and Liberties

Congressional oversight can help safeguard the rights and liberties of citizens and others. By revealing abuses of authority, oversight hearings and other efforts can halt executive misconduct and help prevent its recurrence through, for example, new legislation or indirectly by heightening public awareness.

Draw Public Attention to Issues

Congressional oversight can provide Congress and its Members with the opportunity to highlight issues, activities of the government, and other events that they wish to bring to the attention of the public. Congress may believe that it will be better able to achieve a goal if public pressure or energy is directed to a particular matter and that oversight activities may be one way to generate that attention.

Other Purposes

The purposes of oversight can also be stated in more precise terms. Like the general purposes noted above, these more specific purposes unavoidably overlap because of the numerous and multifaceted dimensions of oversight. A brief list includes the following:

• Review the agency rulemaking process
• Monitor the use of contractors and consultants for government services
• Encourage cooperation between agencies and between the branches
• Promote accountability within agencies
• Examine agency personnel procedures
• Investigate constituent complaints and media critiques
• Signal priorities and demonstrate activity to constituents and interest groups
• Assess whether program design and execution
• Appraise federal evaluation activities

Congress as an Oversight Body

This section lays out several key issues related to Congress's role as a legislative body. It begins with a broad discussion of the constitutional sources of Congress's oversight authority and then proceeds to more specific discussion about how Congress operates as an overseer, including information on participants in oversight, jurisdictional issues, how stakeholders can coordinate their work, and key House and Senate rules that relate to oversight. Next, the section considers oversight as a practice and lays out one way to model oversight as a process. Finally the section concludes with an extended discussion on Congress's working relationship with the executive branch.

Authority to Conduct Oversight

Congress's authority to conduct oversight comes from the Constitution and is informed by Supreme Court decisions, federal laws, and House and Senate rules. Oversight is an implicit constitutional responsibility of Congress. According to historian Arthur Schlesinger Jr., the Framers believed "it was not considered necessary to make an explicit grant of such authority. The power to make laws implied the power to see whether they were faithfully executed."¹⁹

The investigative authority of Congress has been broadly interpreted by an array of Supreme Court decisions. For example, in Watkins v. United States,²⁰ the Court stated that the "power of Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed laws." There are limits to Congress's power to investigate, including some found in the Constitution itself (e.g., the protection accorded witnesses under the Fifth Amendment against self-incrimination).

Constitutional Provisions

The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. The constitutional authority for Congress to conduct oversight stems from such explicit and implicit provisions as

• The power of the purse. The Constitution provides: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."²¹ Each year the House and Senate Committees on Appropriations review the financial practices and needs of federal agencies. The appropriations process allows Congress to exercise extensive control over the activities of executive agencies. Congress can define the precise purposes for which money may be spent, adjust funding levels, and prohibit expenditures for certain purposes.
• The power to organize the executive branch. Congress has the authority to create, abolish, reorganize, and fund federal departments and agencies. It has the authority to assign or reassign functions to departments and agencies and grant new forms of authority and staff to administrators. Congress, in short, exercises ultimate authority over executive branch organization and generally over policy.²²
• The power to make all laws for "carrying into Execution" Congress's own enumerated powers as well as those of the executive branch. Article I grants Congress a wide range of powers, such as the power to tax and coin money, regulate foreign and interstate commerce, declare war, provide for the creation and maintenance of armed forces, and establish post offices.²³ Augmenting these specific powers is the Necessary and Proper Clause, also known as the "Elastic Clause," which gives Congress the authority to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."²⁴ These provisions grant broad authority to regulate and oversee departmental activities established by law.
• The power to confirm officers of the United States. The confirmation process not only involves the determination of a nominee's suitability for an executive (or judicial) position but also provides an opportunity to examine the current policies and programs of an agency along with those policies and programs that the nominee intends to pursue.²⁵
• The power of investigation and inquiry. A traditional method of exercising the oversight function, an implied power, is through investigations and inquiries into executive branch operations. Legislators often seek to know how effectively and efficiently programs are working, how well agency officials are responding to legislative directives, and how the public perceives the programs. The investigatory method helps to ensure a more responsible bureaucracy while supplying Congress with information needed to formulate new legislation.
• Impeachment and removal. Impeachment provides Congress with a powerful oversight tool to investigate alleged executive and judicial misbehavior and to eliminate such misbehavior through the conviction and removal from office of the offending individuals.²⁶

Statutes and Oversight

There are also numerous laws that impact how Congress conducts oversight.²⁷ Despite its lengthy heritage, oversight was not given explicit recognition in public law until enactment of the Legislative Reorganization Act of 1946.²⁸ That act required House and Senate standing committees to exercise "continuous watchfulness" over programs and agencies within their jurisdictions.

Congress has also passed a number of laws, especially in the past half-century, that support its oversight function directly and indirectly. Some of these statutes were designed to make executive branch agencies more transparent. Others have established officials within agencies who are required to perform certain routine oversight functions, including audits and investigations of potential waste, fraud, abuse, or mismanagement. In practice, a large amount of Congress's oversight activity can be traced to information gathered or disclosed through these laws. In addition, Congress devotes significant attention to monitoring the effectiveness of these oversight-enabling statutes and considering amendments to improve their effectiveness.

House and Senate Rules on Oversight

The House and Senate have often amended their formal rules to encourage and strengthen committee oversight of the administration of laws. For example, House rules direct committees to create oversight subcommittees, undertake futures research and forecasting, and review the impact of tax expenditures within their respective jurisdictions. Senate rules require each standing committee to include regulatory impact statements in committee reports accompanying legislation.

House Rules

House rules²⁹ grant the Committee on Oversight and Reform a comprehensive role in the conduct of oversight. For example, the committee has the authority or responsibility to

• "review and study on a continuing basis the operation of government activities at all levels, including the Executive Office of the President" (Rule X, clause 3).
• "receive and examine reports of the Comptroller General and submit to the House such recommendations as it considers necessary or desirable in connection with the subject matter of the reports" (Rule X, clause 4).
• "study intergovernmental relationships between the United States and the States and municipalities and between the United States and international organizations of which the United States is a member" (Rule X, clause 4).
• conduct investigations, at its discretion and at any time, of matters that are jurisdictionally conferred to another standing committee. The findings and recommendations of the Oversight and Reform Committee in such an investigation shall be made available to any other standing committee having jurisdiction over the matter involved (Rule X, clause 4).
• report to the House "not later than April 15 in the first session of a Congress, after consultation with the Speaker, the majority leader, and the minority leader … the oversight plans submitted [by the committees] together with any recommendations that [the Oversight and Reform Committee], or the House leadership group described above, may make to ensure the most effective coordination of these plans" (Rule X, clause 2).
• choose to adopt a "rule authorizing and regulating the taking of depositions by a member or counsel of the committee including pursuant to subpoena under clause 2(m) of Rule XI" (Rule X, clause 4).
• "evaluate the effect of laws enacted to reorganize the legislative and executive branches of the Government" (Rule X, clause 4).

House rules also provide authority for oversight by other standing committees as follows:

• Each standing committee (except Appropriations, Ethics, and Rules) shall review and study "the application, administration, execution, and effectiveness of laws and programs addressing subjects within its jurisdiction" and determine whether they should be "continued, curtailed, or eliminated" (Rule X, clause 2).
• Committees have the authority to "review and study the impact or probable impact of tax policies" on subjects that fall within their jurisdiction (Rule X, clause 2).
• Certain committees have special oversight authority (i.e., to review and study, on an ongoing basis, specific subject areas that are within the legislative jurisdiction of other committees). Special oversight is somewhat akin to the broad oversight authority granted to the Committee on Oversight and Reform by the 1946 Legislature Reorganization Act except that special oversight is generally limited to named subjects (Rule X, clause 3).
• Each standing committee "having more than 20 members shall establish an oversight subcommittee, or require its subcommittees to conduct oversight in their respective jurisdictional areas" (Rule X, clauses 2 and 5).
• Committee reports on measures are to include oversight findings separately set out and clearly identified. They are also to include "a statement of general performance goals and objectives, including outcome-related goals and objectives, for which the measure authorizes funding" (Rule XIII, clause 3).
• "Each standing committee, or a subcommittee thereof, shall hold at least one hearing during each 120-day period following the establishment of the committee on the topic of waste, fraud, abuse, or mismanagement in government programs that that committee may authorize." Such hearings shall "include a focus on the most egregious instances of waste, fraud, abuse, or mismanagement in government programs as documented by any report the committees have received" from the Comptroller General or an inspector general. Committee and subcommittees shall also hold "at least one hearing on issues raised by reports issued by the [Comptroller General] indicating that federal programs or operations that the committee may authorize are at high risk for waste, fraud, and mismanagement, known as the 'high-risk list' or 'high-risk series'" (Rule XI, clause 2).
• The chair of each standing committee (except Appropriations, Ethics, and Rules) shall "prepare, in consultation with the ranking minority member, an oversight plan for that Congress not later than March 1 of the first session of a Congress." Committee plans shall be submitted simultaneously to the Committees on Oversight and Reform and House Administration. Additionally, "not later than April 15 in the first session of a Congress, after consultation with the Speaker, the Majority Leader, and the Minority Leader, the Committee on Oversight and Reform shall report to the House on the oversight plans [of the committees] together with any recommendations that it, or the House leadership group, may make to ensure the most effective coordination of oversight plans and otherwise to achieve the[se] objectives."
• "In developing their plans, each standing committee shall to the maximum extent feasible
• (A) "consult with other committees that have jurisdiction over the same or related laws, programs, or agencies with the objective of ensuring maximum coordination and cooperation among committees when conducting reviews of such laws, programs, or agencies and include in the plan an explanation of steps that have been or will be taken to ensure such coordination and cooperation;
• (B) "review specific problems with Federal rules, regulations, statutes, and court decisions that are ambiguous, arbitrary, or nonsensical, or that impose severe financial burdens on individuals;
• (C) "give priority consideration to including in the plan the review of those laws, programs, or agencies operating under permanent budget authority or permanent statutory authority;
• (D) "have a view toward ensuring that all significant laws, programs, or agencies within the committee's jurisdiction are subject to review every 10 years;
• (E) "have a view toward ensuring against duplication of Federal programs; and
• (F) "give priority consideration to including in the plan discussion of how the committee's work will address issues of inequities on the basis of race, color, ethnicity, religion, sex, sexual orientation, gender identity, disability, age, or national origin" (Rule X, clause 2).
• "Not later than January 2 of each odd-numbered year, a committee shall submit to the House a report on the activities of that committee. (2) Such report shall include—
• (A) "separate sections summarizing the legislative and oversight activities of the committee during the applicable period;
• (B) "a summary of the oversight plans submitted by the committee; …
• (C) "a summary of the actions taken and recommendations made with respect to [their oversight plans];
• (D) "a summary of any additional oversight activities undertaken by that committee and any recommendations made or actions taken thereon; and
• (E) "a delineation of any [oversight] hearings" (Rule XI, clause 1).

In addition, the Speaker, with the approval of the House, may appoint special ad hoc oversight committees for the purpose of reviewing specific matters within the jurisdiction of two or more standing committees (Rule X, clause 2).

Senate Rules

Under Senate rules,³⁰ each standing committee (except for Appropriations and Budget) shall "review and study, on a continuing basis, the application, administration, and execution of those laws, or parts of laws, within the legislative jurisdiction of the committee" (Rule XXVI, clause 8).

In addition to that general oversight requirement, "comprehensive policy oversight" responsibilities are granted to specified standing committees. This duty is similar to special oversight in the House. For example, the Committee on Agriculture, Nutrition, and Forestry is authorized to study and review, on a comprehensive basis, matters relating to food, nutrition, and hunger both in the United States and in foreign countries and rural affairs and report thereon from time to time (Rule XXV, clause 1(a)).

All standing committees, except Appropriations, are required to include regulatory impact evaluations in their committee reports accompanying each public bill or joint resolution (Rule XXVI, clause 11). The evaluations are to include matters such as

• an estimate of the numbers of individuals and businesses that would be regulated,
• a determination of the measure's economic impact and effect on personal privacy, and
• a determination of the amount of additional paperwork that will result from the regulations.

The Committee on Homeland Security and Governmental Affairs exercises oversight jurisdiction over government operations generally, including the U.S. Department of Homeland Security. Selected oversight duties assigned to the committee under Rule XXV, clause 2(k) include

• reviewing and studying on a continuing basis the operation of government activities at all levels to determine their economy, effectiveness, and efficiency;
• receiving and examining reports of the Comptroller General and submitting recommendations as it deems necessary to the Senate;
• evaluating the effects of laws enacted to reorganize the legislative and executive branches of the government; and
• studying intergovernmental relationships between the United States and the states and municipalities and international organizations of which the United States is a member.

The Senate established the Permanent Subcommittee on Investigations under the Committee on Government Operations on March 1, 1948 (during the 80^th Congress) by adopting S.Res 189.

The subcommittee was an outgrowth of the 1941 "Truman Committee" (named for its chair, Senator Harry Truman), which investigated fraud and mismanagement of the nation's war program. The Truman Committee ended in 1948, but the chair of the Government Operations Committee transferred the functions of the Truman Committee to the Permanent Subcommittee on Investigations. Since then this subcommittee (now a part of the Committee on Homeland Security and Governmental Affairs) has investigated scores of issues, such as government waste, fraud, and inefficiency.³¹

Congressional Participants in Oversight

Committees

The most common method of conducting oversight is through the committee system. Legislative history demonstrates that the House and Senate have long used their standing committees—as well as joint, select, or special committees—to investigate federal activities and agencies:

• The House Committee on Oversight and Reform and the Senate Committee on Homeland Security and Governmental Affairs have broad oversight jurisdiction over virtually the entire federal government. They have been vested with broad investigatory powers over government-wide activities.
• The House and Senate Committees on Appropriations have similar responsibilities when examining and reviewing the fiscal activities of the federal government. The House Committee on Appropriations also has a "Surveys and Investigations" staff who are tasked with "pursu[ing] program issues in depth, including those specific to an agency or Department and those that are crosscutting and have government-wide impacts."³² The work of this staff is based on directives from subcommittees that must be issued on a bipartisan basis by the chair and ranking member.³³
• Each standing committee of Congress has oversight responsibilities for reviewing government activities principally within its jurisdiction. These panels also have the authority to establish oversight and investigative subcommittees. The establishment of an oversight subcommittee does not preclude a panel's legislative subcommittees from conducting oversight. Certain House and Senate committees have "special oversight" or "comprehensive policy oversight" of designated subject areas, as noted above.

Members

Oversight is generally considered a committee activity, but Members also have the ability to pursue oversight without working through a committee. Both casework and other project work conducted in Members' personal offices, including in their district or state offices, can yield insights about bureaucratic behavior and policy implementation. These discoveries, in turn, can lead to the adjustment of agency policies and procedures and to changes in public law.

Casework—responding to constituent requests for assistance with a federal agency³⁴—provides an opportunity to examine bureaucratic activity and operations, if only in a selective way. Other constituent service activities, such as responding to inquiries about federal grants or projects or addressing concerns about program implementation or agency operations, may also provide Members with similar insights. The accessibility of government websites also allows interested constituents to monitor federal activities and expenditures and to share their findings or observations with Members, relevant committees, and legislative staff.

Individual Members may also conduct their own investigations or ad hoc hearings or direct their staff to conduct oversight studies. While individual lawmakers lack the authority to use compulsory processes (e.g., subpoenas) or conduct official hearings, many other options are available.³⁵ Members might also request GAO, an inspector general or other appropriate government official, a private research group, or some other entity to conduct an investigation. Members might choose to publicize this work by releasing staff reports with their findings; sharing information with their constituents, the media, and other stakeholders; or using what they learn to support additional oversight or legislation.

Committee Staff

As issues become more complex, the professional staff of House and Senate committees can provide the expertise required to conduct effective oversight and investigations. Committee staff are expected to have the experience, knowledge, and analytical skills to conduct proficient and thorough oversight for the committees and subcommittees they serve. Committees may also call upon legislative support agencies for assistance, hire consultants, "borrow" staff from federal departments, or employ academics and others with specialized expertise.

Committee staff, in summary, occupy a central position in the conduct of oversight. Their informal contacts with executive officials at all levels constitute one of Congress's most effective techniques for performing its "continuous watchfulness" function.

Personal Staff

Constituent letters, complaints, and requests for projects and assistance frequently bring issues and deficiencies in federal programs and administration to the attention of Members and their personal office staff. The casework performed by a Member's staff for constituents can be an effective oversight tool.

Casework can be an important vehicle for pursuing both the oversight and legislative interests of the Member. Members and their staff aides are mindful of the relationship between casework and the oversight function. This connection is facilitated by a regular exchange of ideas among the Member, legislative aides, and caseworkers on problems brought to the office's attention by constituents. Caseworkers may also become aware of certain issues through their interactions with agency employees. Telephone and email inquiries, reinforced with written requests, can focus agency attention on issues raised by caseworkers and Members' constituents. Casework might also prompt legislative initiatives to resolve those problems.

Caseworkers and other legislative staffers may seek to maximize service to their Member's constituents by reaching out to the staff of the subcommittees and committees that handle the areas of concern to the Member's constituents. Through this interaction, the staff of the pertinent standing committee(s) can be made aware of the problems with the agency or program in question, assess how widespread and significant they are, determine their causes, and recommend corrective action.

Congressional Support Agencies and Offices

Many of the other agencies and offices within the legislative branch may be able to support through their work assisting in the overall operations of the House and Senate. Additional offices that might play a role in oversight include, among others, the House General Counsel's Office, the House Parliamentarian's Office, the Senate Parliamentarian's Office, the House Clerk's Office, the Secretary of the Senate's Office, the Office of Senate Legal Counsel, the Senate and House Historian's Office, and the Senate Library.

For further detail on the role of GAO, CRS, CBO, and these other offices, see "Oversight Information Sources and Consultant Services" later in this report.

Oversight Coordination

A persistent challenge for Congress in conducting oversight is coordination among committees—within each chamber as well as between the two houses. As the final report of the House Select Committee on Committees of the 93^rd Congress noted, "Review findings and recommendations developed by one committee are seldom shared on a timely basis with another committee, and, if they are made available, then often the findings are transmitted in a form that is difficult for Members to use."³⁶ Oversight coordination between House and Senate committees is also uncommon, and it occurs primarily in the aftermath of perceived major policy failures or prominent inter-branch conflicts, as with the Iran-Contra affair and the 9/11 terrorist attacks.

Inter-committee cooperation on oversight can be beneficial for a variety of reasons. For example, it can help minimize unnecessary duplication and conflict and inhibit agencies from playing one committee against another. There are formal and informal ways to achieve oversight coordination among committees.

General Techniques of Encouraging Oversight Coordination

House Rule X and Senate Rule XXV provide broad authority to the standing committees of each chamber to investigate matters within their respective jurisdictions. Committees undertake oversight activities on their own initiative, by the full committee, or by one or more of its subcommittees, and in some cases they may coordinate their activities with other committees (for instance, by convening a joint hearing on a subject of mutual interest). Alternatively, to supplement the existing standing committee system, the House or Senate can establish select or special committees to probe issues and agencies, promote public understanding of national concerns, or coordinate oversight of issues that span the jurisdiction of more than one standing committee. Given the wide range of subjects each committee is responsible for, the creation of a select committee can enable greater sustained focus on a particular area of congressional concern.

House rules also contain requirements of its standing committees to coordinate their oversight plans and activities with one another "to the maximum extent feasible."³⁷ For instance, each House committee is expected to assemble an oversight plan at the beginning of each new Congress that documents its oversight goals for that Congress. When developing these plans, committee chairs are directed "to consult with other committees that have jurisdiction over the same or related laws, programs, or agencies with the objective of ensuring maximum coordination and cooperation among committees when conducting reviews of such laws, programs, or agencies and include in the plan an explanation of steps that have been or will be taken to ensure such coordination and cooperation."³⁸ Oversight plans assembled by the House's standing committees are delivered to the Committee on Oversight and Reform and are printed as a report of the Oversight and Reform Committee along with that committee's own recommendations.³⁹ The Senate does not have a similar requirement.

The Oversight Process in Congress

Congress's oversight practice can range from day-to-day activities, such as assisting constituents in their interactions with agencies, to much more formal actions, such as impeachment proceedings and special committees and subcommittees tasked with investigating specific issues.⁴⁰

Planning for and executing oversight actions can be summarized in three questions posed below. These questions, though not a comprehensive guide to the oversight process, succinctly describe some of the broad contours and identify important issues that may warrant consideration. While the process outlined within these questions appears to have a beginning, a middle, and an end, oversight will not always follow a clear path. It has the potential to take Congress in unexpected directions and may not always unfold in a typical, or even predictable, manner.

Question 1: Which Issues Warrant Oversight?

Any information that Members or their staff learn about activities of the executive branch might become the basis for oversight. Such information can come from a wide variety of sources and in many forms. Congress might receive information from constituents, agency officials (who may or may not be acting as whistleblowers), inspectors general, GAO, interest groups, or the media. Information can also come in other forms, including congressionally mandated reports and other government publications, agency responses to questions during or outside of committee hearings, or personal observations of executive branch activities.

The decision about which potential oversight matters to pursue is based on the judgment and goals of congressional leaders, committees, and individual Members. These decisions may include factors that are outside the scope of the Oversight Manual.⁴¹ However, there are logistical and technical considerations that may be relevant to these discussions. Those considerations might include Congress's authority to conduct particular oversight activities, the resources required to successfully complete an oversight project, and the anticipated outcome of successful oversight.

Authority to Oversee

While Congress's authority to conduct oversight is expansive, it is not unlimited. Cases may arise where it is not entirely clear whether Congress has the authority to take a specific action or gather particular information. This can be a complicated question that involves contested questions of law and the appropriate separation of powers.⁴² Unresolved questions about the limits of Congress's oversight authority might not dissuade Congress from conducting oversight in those areas. Nonetheless, understanding the issues that could arise might be useful when determining whether to proceed.

Resources

Oversight has costs. Of particular importance are staff and Member time, both of which can be scarce resources.⁴³ Resource limitations might guide Members and committees to choose between different oversight opportunities or between oversight and other activities. These constraints are important for Congress to carefully consider when making decisions about when and how to conduct oversight.

Anticipated Outcome

Another practical question that might be considered is the probable outcome for a particular oversight action. It is not possible to know, in advance, what will result from an oversight activity. With experience, Members and staff may develop a strong sense of how and where oversight projects are likely to go and how long they might take.

Question 2: How to Get the Desired Information?

Once the decision to investigate a particular oversight matter has been made and goals for that activity has been set, it is important to formulate a plan for conducting that oversight. Such a plan does not have to be complex or formalized. There are many cases when a telephone call to an agency contact or identification of publicly available documents could be enough to satisfy Congress's purposes.

What Information Is Available and Who Has It?

Having identified a specific or general goal for an oversight action, it will be useful to determine what relevant information may be available and which agency or official is likely to have it. For instance, when investigating an allegation of mismanagement within an agency, the agency's own records and officials may be a primary source of information on the operations of the agency.

There are instances, however, when it might be more difficult to make these determinations. First, it might not be obvious that certain information would be useful to Congress's activities even if it is readily available. Second, it may be difficult to determine where documents or officials with relevant information can be found even if Congress has a good sense of the type of information it wants. This will be especially true when an issue involves the activities or jurisdiction of multiple agencies. CRS is also available to assist with the identification and collection of relevant materials.

How Can Congress Get the Information?

Sometimes gathering information will be the biggest challenge Congress faces when conducting oversight. Much of this Manual is devoted to the variety of tools available to Congress to obtain information even in the face of resistance from the executive branch.⁴⁴

In many other cases, information will already be available to Congress, either because disclosure is required by statute or because a federal agency, other organization, or individual has chosen to release the information to Congress or the public. It will often be possible to obtain information via direct communication between Members or staff and agency officials. There are strong incentives for agencies to engage with Congress, and they may provide information upon request in many instances.⁴⁵

Question 3: What Can Be Done with This Information?

Most would agree that oversight has the ability to "throw light on activities of government" and fosters an environment of increased accountability for officials.⁴⁶ Oversight, especially oversight that includes "police patrol" strategies, is likely to have these benefits across the government, even though Congress does not have the capacity to directly monitor the activities of millions of federal employees and contractors.⁴⁷

Oversight can directly support Congress's legislative function. Oversight provides information on the state of the government that can be applied when Congress makes decisions on agency budgets and program authorizations and may lead to other legislation.⁴⁸ How the knowledge gained from oversight can be applied in those other functions will depend on the nature of that information and the priorities and preferences of Congress.

Oversight Through Legislative and Investigative Processes

This section identifies major areas of congressional activity and how they relate to and facilitate oversight. Congress has a central role in the development of the budget, the operations of agencies and general management of the executive branch, confirmation of appointees to senior positions across the government, and, of course, the consideration and approval of all legislation.

The Legislative Process

While oversight is frequently considered to be a separate track of congressional activity running adjacent to the body's exercise of legislative authority, there are important ways in which the two activities overlap. Oversight, for instance, can impact decisions on legislation by providing information that influences legislative priorities or identifies areas of interest. In some cases, Congress establishes reporting and study requirements for GAO, inspectors general, and agencies that generate recommendations for agency or congressional action, which in turn provide both oversight information and ideas for potential legislation.

As Congress has expanded its use of statutory tools that facilitate oversight, it has devoted more attention to developing such legislation, overseeing its implementation, and evaluating its effectiveness.⁴⁹

The Budget Process⁵⁰

The Congressional Budget and Impoundment Control Act of 1974,⁵¹ as amended, enhanced the legislative branch's capacity to shape the federal budget. The act has had major institutional and procedural effects on Congress:

• Institutionally, Congress created three new entities: the Senate Committee on the Budget, the House Committee on the Budget, and the Congressional Budget Office.
• Procedurally, the act established methods that permit Congress to determine budget policy as a whole; relate revenue and spending decisions; determine priorities among competing national programs; and ensure that revenue, spending, and debt legislation are consistent with the overall budget policy.

The budget process coexists with the established authorization and appropriation procedures and significantly affects each:

• On the authorization side, the Budget Act requires committees to submit their budgetary "views and estimates" on matters under their jurisdiction to the Committee on the Budget not later than six weeks after the President submits a budget or at such time that the Budget Committee might request.
• On the appropriations side, new contract and borrowing authority must go through the appropriations process. Subcommittees of the Appropriations Committees are assigned a financial allocation that determines how much may be included in the measures they report. (The tax and appropriations panels of each house also submit budgetary views and estimates to their respective Budget Committees.)
• In deciding spending, revenue, credit, and debt issues, Congress is sensitive to trends in the overall composition of the annual federal budget (expenditures for defense, entitlements, interest on the debt, and domestic discretionary programs).⁵²

These Budget Act reforms have the potential to strengthen oversight by enabling Congress to better relate program priorities to financial claims on the national budget. Each committee, knowing that it will receive a fixed amount of the total to be included in a budget resolution, has an incentive to scrutinize existing programs to make room for new programs or expanded funding of ongoing projects or to assess whether programs have outlived their usefulness.

The Authorization Process

Through its authorization power, Congress exercises significant control over government agencies. The entire authorization process⁵³ may involve a host of oversight tools—hearings, studies, and reports—but the key to the process is the authorization statute.

An authorization statute creates and shapes government programs and agencies, and it contains the statement of legislative policy for the agency. Authorization is the first lever in congressional exercise of the power of the purse. It usually allows an agency to be funded, but it does not guarantee financing of agencies and programs. Frequently, authorizations establish dollar ceilings on the amounts that can be appropriated.

The authorization-reauthorization process is a significant oversight tool. Through this process, Members can become informed about the work of an agency and are given an opportunity to direct the agency's effort.⁵⁴

Expiration of an agency's program can provide an opportunity for in-depth oversight. In recent decades, there has been a mix of permanent authorizations—which do not require regular reauthorization legislation—and periodic authorizations, which can be annual or multiyear. Periodic reauthorizations increase the likelihood that an agency will be scrutinized systematically. An agency's understanding that it must come to the legislative committee for renewed authority increases the influence of the committee. This condition helps to account for the appeal of short-term authorizations.

In addition to formal amendment of the agency's authorizing statute, the authorization process gives committees an opportunity to exercise informal, nonstatutory controls over the agency. Nonstatutory controls used by committees to exercise direction over the administration of laws include statements made in

• committee hearings,
• committee reports accompanying legislation,
• floor debate, and
• contacts and correspondence with the agency.

If agencies fail to comply with these informal directives, the authorization committees can apply sanctions or move to convert the informal directive to a statutory command.

The Appropriations Process

The appropriations process is among Congress's most significant forms of oversight. Its strategic position stems from the constitutional requirement that "no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."⁵⁵ This "power of the purse" allows the House and Senate Committees on Appropriations to play a prominent role in oversight.

The oversight function of the Committees on Appropriations derives from their responsibility to examine the budget requests of the agencies as contained in the President's budget. The decisions of the committees are conditioned on their assessment of the agencies' need for their budget requests as indicated by past performance. In practice, the entire record of an agency is fair game for the required assessment. This comprehensive overview and the "carrot and stick" of appropriations recommendations (i.e., the authority of the committees to withhold or reduce appropriations to uncooperative agencies) make the committees significant focal points of congressional oversight and are a key source of their power in Congress and in the federal government generally.⁵⁶

Enacted appropriations legislation frequently contains at least five types of statutory controls on agencies:

• 1. It specifies the purpose for which funds may be used.
• 2. It defines the specified funding level for the agency as a whole as well as for programs and divisions within the agency.
• 3. It sets time limits on the availability of funds for obligation.
• 4. It may contain limitation provisions. For example, in Division A of the Consolidated Appropriations Act for FY2022,⁵⁷ Congress included the following condition: "None of the funds appropriated or otherwise made available by this Act may be used for first-class travel by the employees or agencies funded by this Act in contravention of sections 301-10.122 through 301-10.124 of title 41, Code of Federal Regulations."⁵⁸
• 5. It may stipulate how an agency's budget can be reprogrammed (shifting funds within an appropriations account) or transferred (shifted between appropriations accounts).

Nonstatutory controls are a major form of oversight. Committee expectations and requirements may be conveyed through committee reports and in hearings, letters to agency heads, and other communications. Agencies are not legally obligated to abide by nonstatutory recommendations, but failure to do so may result in a loss of funds and flexibility the following year.

The Investigatory Process

Congress's power to investigate is implied in the Constitution. Numerous Supreme Court decisions have upheld the legislative branch's right of inquiry, provided it stays within its legitimate legislative sphere.⁶⁰ The roots of Congress's authority to conduct investigations extend back to the British Parliament and the colonial assemblies.⁶¹ In addition, for its impeachment power, the House of Representatives has been described as the "grand inquest of the nation."⁶² Since the Framers expected lawmakers to employ the investigatory function, based upon parliamentary precedents, it was seen as unnecessary to invest Congress with an explicit investigatory power.⁶³

Investigations and related activities may be conducted by

• individual Members,
• committees and subcommittees,
• staff or outside organizations and personnel under contract, or
• congressional support agencies such as GAO and CRS.

Investigations may serve several purposes:

• They can help to ensure honesty and efficiency in the administration of laws.
• They can secure information that assists Congress in making informed policy judgments.
• They may aid in informing the public about the administration of laws.

The Confirmation Process

By establishing a public record of the policy views of nominees, congressional hearings allow lawmakers to call appointed officials to account at a later time. Since at least the Ethics in Government Act of 1978,⁶⁴ which encouraged greater scrutiny of nominations, Senate committees have set aside more time to probe the qualifications, independence, and policy views of presidential nominees, seeking information on everything from their physical health to their financial assets. The confirmation process can assist in oversight in at least three ways:

• 1. The Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."⁶⁵ The consideration of appointments to executive branch leadership positions is a major responsibility of the Senate and especially of Senate committees, which review and hold hearings regarding the qualifications of nominees.
• 2. Confirmation hearings serve as an opportunity for senatorial oversight and influence, providing a forum for the discussion of the policies and programs the nominee intends to pursue. The confirmation process as an oversight tool can be used to provide policy direction to nominees, inform nominees of congressional interests, and seek commitments on future behavior.
• 3. Once the Senate has confirmed a nominee, oversight includes following up to ensure that the nominee fulfills any commitments made during confirmation hearings. Subsequent hearings and committee investigations can explore whether such commitments have been kept.

The President has alternative authority to make appointments that do not require the advice and consent of the Senate, including, under certain circumstances, recess appointments⁶⁶ and designations under the Vacancies Act.⁶⁷

The Impeachment Process

The impeachment power is a unique oversight tool available to Congress. Impeachment applies to the President, Vice President, and other federal civil officers in the executive and judicial branches.⁶⁸ Impeachment offers Congress:

• an auxiliary constitutional method for obtaining information that might otherwise not be made available and
• an implied threat of removal for an official whose conduct exceeds acceptable boundaries.

Impeachment procedures differ from those of conventional congressional oversight. The most significant procedural differences center on the roles played by each house of Congress. The House of Representatives has the sole power to impeach.⁶⁹ A simple majority is needed in the House to approve articles of impeachment. The Senate has the sole power to try an impeachment.⁷⁰ A two-thirds majority is required in the Senate to convict and remove the individual from office. Should the Senate deem it appropriate in a given case, it may, by majority vote, impose an additional judgment of disqualification from holding further federal offices of honor, trust, or profit.⁷¹

The impeachment process is infrequently used. The House has voted to impeach in 20 cases. The Senate has voted to convict in eight cases, all pertaining to federal judges. The most recent executive impeachment trial was that of President Donald Trump in 2021, and the most recent judicial impeachment trial was that of U.S. District Court Judge G. Thomas Porteous Jr. in 2010. A number of constitutional and procedural issues were addressed in the impeachment trial of President Bill Clinton and other modern impeachment proceedings, although the answers to some of these questions remain ambiguous. For example:

• The impeachment process has been continued from one Congress to the next,⁷² although the procedural steps vary depending upon the stage in the process.
• The Constitution defines the grounds for impeachment as "Treason, Bribery, or other high Crimes and Misdemeanors."⁷³ However, the meaning and scope of high Crimes and Misdemeanors remains in some dispute and depends on the interpretation of individual legislators.⁷⁴
• The Constitution provides for impeachment of the "President, Vice President, and all civil Officers of the United States."⁷⁵ While the outer limit of the "civil Officers" language is not altogether clear, past precedents suggest that it covers at least federal judges and senior executive officers.

Investigative Oversight⁷⁶

This section provides an overview of some of the more common legal issues that committees may face in the course of conducting oversight and investigations. It begins by briefly describing the historical development of the legislative "power of inquiry" and follows with a general summary of Congress's authority under the U.S. Constitution to perform oversight and investigations. It then discusses the legal tools commonly used by congressional committees in conducting that oversight as well as the mechanisms used by Congress to enforce its demands for information. The section then briefly discusses possible legal limitations on the investigative power, including those arising from the Constitution, common law, and statutory restrictions.

Historical Background

The rich and varied history of legislative investigations, which can be traced from the English Parliament to American colonial legislatures and through to the U.S. Congress, has played a leading role in establishing the nature and contours of the congressional "power of inquiry."⁷⁷ This history supports the unmistakable conclusion that the power to investigate has long been considered an essential attribute of legislative bodies.

It is difficult to identify, at least with precision, the emergence of Parliament's protean investigatory powers. By the early 17^th century however, Parliament had apparently recognized its power to investigate by requiring—on a case-by-case basis—the attendance of witnesses and the production of documents in furtherance of the body's "duty to inquire into every Step of publick management…."⁷⁸ These early investigations carried out by parliamentary committees focused on the king's ministers, in order to oversee their execution of the law, as well as private parties.⁷⁹ As the gathering information relating to both the passage of new laws and the administration of existing laws became seen as an essential ingredient of the legislative process, compulsory investigatory powers were provided on a more general and permanent basis to established parliamentary committees of inquiry.⁸⁰ This overarching historical notion of the power of inquiry as a necessary component of the legislative power was transported to America, where it was incorporated into the practice of colonial governments and, after independence, to U.S. state governments.⁸¹

The Constitutional Convention saw almost no discussion of Congress's power to conduct oversight and investigations, although individual Members of the convention appear to have understood Congress to clearly possess "inquisitorial" powers.⁸² A proposal to explicitly provide Congress with the power to punish for contempts, a power Parliament often used as a means to effectuate its investigatory powers, was made but not acted upon.⁸³ Nevertheless, it is likely that the general view was that no express enumeration of the power of inquiry or the power to punish for contempt was considered necessary because the Framers' conception of legislative power, based on centuries of consistent practice by both Parliament and colonial legislatures, included the ability to gather information relevant to the conduct of the House and Senate's legislative functions.⁸⁴ As one scholar has put it, the contemporary understanding of legislative power at the time of the adoption of the Constitution "possessed a content sufficiently broad to include the use of committees of inquiry with powers to send for persons and paper."⁸⁵

Long-standing and unbroken congressional practice confirms this view. Congress has exhibited a robust view of its own investigatory powers from the very outset, especially in regard to the legislature's role in overseeing the administration of government.⁸⁶ During the First Congress, the House appointed five Members to investigate Senator Robert Morris's prior activities as superintendent of finance under the Articles of Confederation.⁸⁷ The House later established the first special investigating committee in 1792 for the purpose of inquiring into Major General Arthur St. Clair's disastrous military excursion into the Northwest Territory in which nearly 700 federal troops were killed by the Western Confederacy of American Indians.⁸⁸ The mere act of authorizing such a committee set an important precedent in that adoption of the resolution was preceded by a debate over whether it was appropriate, and indeed constitutional, for the House to investigate the matter or whether it was preferable to urge the President to carry out the inquiry.⁸⁹ Although some asserted that the House lacked authority to inquire into executive operations, that position was defeated, and the investigating committee was established with clear authority to "call for such persons, papers and records as may be necessary to assist their inquiries."⁹⁰

The investigation itself also established important precedents for Congress's authority to gather information from the executive branch, including in relation to sensitive military matters. After some discussion within Washington's Cabinet of the President's authority to withhold requested information from Congress, the special committee obtained documents from both the War Department and the Treasury Department as well as testimony from Cabinet officials Henry Knox and Alexander Hamilton.⁹¹

Congress also acted swiftly to use federal law and internal rules to strengthen its investigatory powers. In 1798, Congress enacted a statute recognizing its powers to not only obtain evidence through testimony but to do so from witnesses under oath.⁹² The statute specifically authorized the President of the Senate, the Speaker of the House, and a chair of a select committee to administer oaths to witnesses testifying before Congress.⁹³ During this same time period, both the House and Senate began to delegate to ad hoc select committees the authority to call for papers or persons. Committee investigations have continued apace to the modern day, representing a pervasive and nearly ubiquitous aspect of the legislative function,⁹⁴ as has Congress's use of statutory provisions and internal chamber rules to support committee investigations. The investigatory power is therefore thoroughly rooted in history and stands on an equal footing with Congress's other legislative powers.⁹⁵

Constitutional Authority to Conduct Oversight and Investigative Inquiries

Although the "power of inquiry" was not expressly provided for in the Constitution, the Supreme Court has nonetheless described investigations as so central to the legislative function as to be implicit in Article I's vesting of "legislative Powers" in the Congress.⁹⁶ In the seminal case of McGrain v. Daugherty, a unanimous Supreme Court declared that "the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function."⁹⁷ Congressional investigations are therefore properly characterized as an implied constitutional power of Congress.⁹⁸ It is a power that serves to both ensure that Congress can make effective and informed legislative decisions and to check executive power, thereby sustaining Congress's role in the United States' constitutional scheme of separated powers.⁹⁹

This power to gather information related to the legislative function is both critical in purpose, as Congress "cannot legislate wisely or effectively in the absence of information," and extensive in scope, as Congress is empowered to obtain pertinent testimony and documents through investigations into nearly any matter properly before the body.¹⁰⁰ In Eastland v. United States Servicemen's Fund, for instance, the Supreme Court stated that the "scope of its power of inquiry … is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution."¹⁰¹ Similarly, in Watkins v. United States, the Court emphasized that the "power of the Congress to conduct investigations is inherent in the legislative process."¹⁰² "That power," the Court established, "is broad" and "encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes"¹⁰³ and "comprehends probes into departments of the federal government to expose corruption, inefficiency, or waste."¹⁰⁴ Included within the scope of the power is the authority to initiate investigations, hold hearings, request testimony or documents from witnesses, and, in situations where either a government or private party is not forthcoming, compel compliance with congressional requests through the issuance and enforcement of subpoenas.¹⁰⁵

The Supreme Court most recently reaffirmed both the importance and breadth of Congress's investigatory power in Trump v. Mazars.¹⁰⁶ There, the Court observed that "[w]ithout information, Congress would be shooting in the dark, unable to legislate 'wisely or effectively.'" As such, Congress's investigatory powers must be understood to include "inquiries into the administration of existing laws, studies of proposed laws, and 'surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.'"¹⁰⁷

The Constitutional Scope of the Investigative Power: Legislative Purpose

Broad as the investigative power may be, it is not unlimited.¹⁰⁸ The Supreme Court has cautioned that because the power to investigate derives from Article I's grant of "legislative powers," it may be exercised only "in aid of the legislative function."¹⁰⁹ No inquiry "is an end in itself" but instead "must be related to, and in furtherance of, a legitimate task of the Congress."¹¹⁰ The Supreme Court has generally implemented this principle by requiring that compulsory committee investigative actions—including subpoenas for documents or testimony—serve a valid legislative purpose.

This "legislative purpose" requirement is quite generous, permitting investigations into any topic upon which legislation could be had or over which Congress may properly exercise authority.¹¹¹ This includes investigations undertaken by Congress to inform itself about how existing laws function, whether new laws are necessary, and if old laws should be repealed or altered.¹¹² Investigations into whether the executive branch is complying with its obligation to faithfully execute laws passed by Congress also serve a legislative purpose, as do "probes into departments of the Federal Government to expose corruption, inefficiency or waste."¹¹³ The Supreme Court also appears to have recognized Congress's legitimate role in informing the public "concerning the workings of its government"—a task the legislature has "assiduously performed" since "the earliest times in its history."¹¹⁴

In practice, the legislative purpose requirement rarely acts as a significant restriction on legislative investigations, especially those relating to government operations. This is principally because the scope of what constitutes a permissible legislative purpose is broad but also because the application of the legislative purpose test has generally been quite deferential to the investigating committee. For example, in addition to broadly interpreting the scope of the types of investigations that aid the legislative function, the Supreme Court has at times effectively adopted a presumption that committees act with a legislative purpose when engaged in an investigation of governmental activity.¹¹⁵ This can be seen, for example, in McGrain, a case arising out of a congressional investigation of the Attorney General's failure to prosecute certain individuals following the Teapot Dome scandal.¹¹⁶ Initially, a federal district court had invalidated the congressional committee's attempts to obtain testimony from the Attorney General's brother, a private citizen. The lower court reasoned that the committee's purpose was not legislative in nature but was undertaken to "determine the guilt of the Attorney General" and to "put him on trial," which Congress "has no power to do."¹¹⁷ The Supreme Court, however, explicitly rejected this characterization of the committee's purpose, holding instead that

[T]he subject to be investigated was the administration of the Department of Justice—whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties…. Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit.¹¹⁸

In light of this oversight role, the Court held that "the only legitimate object the Senate could have in ordering the investigation was to aid it in legislating; and we think the subject-matter was such that the presumption should be indulged that this was the real object."¹¹⁹

The judiciary's application of the legislative purpose test is informed by other principles that have previously reflected a reluctance to question a committee's reasons for seeking information. The Supreme Court has made clear that when "Congress acts in pursuance of its constitutional power," the courts should not inquire into "the motives which spurred the exercise of" the investigative power.¹²⁰ Even evidence of bad intent will not "vitiate" an otherwise valid investigation.¹²¹

Nor is a committee required to "declare in advance" the purpose of an inquiry or its ultimate legislative or oversight goal.¹²² The Supreme Court has stated, "The very nature of the investigative function—like any research—is that it takes the searchers up some 'blind alleys' and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result."¹²³

The judicial reluctance to question congressional motives and the general presumption that committees act with a legislative purpose both play a significant role in limiting the effectiveness of raising legislative purpose as a defense to an otherwise valid congressional subpoena. However, the courts have acknowledged at least two general classes of investigations in which Congress may generally lack a legislative purpose: investigations into private conduct with no relation to the legislative function and investigations that usurp functions committed to another branch of government.

Investigations into Private Conduct with No Relation to the Legislative Function

Congress does not act with a legislative purpose when investigating private conduct that has no nexus to the legislative function. In the 1880 decision of Kilbourn v. Thompson, the Supreme Court held broadly that Congress does not "possess[] the general power of making inquiry into the private affairs of the citizen."¹²⁴ But the Court has subsequently described the "loose language" of Kilbourn and its narrow conception of Congress's investigative power as "severely discredited."¹²⁵ For example, in discussing the reach of Kilbourn, the Court appears to have made a distinction between investigating purely private conduct of private citizens, which would not typically serve a legislative purpose, and investigating the private conduct of public office holders, which may, in some circumstances, serve a legislative purpose due to Congress's role in preserving good government.¹²⁶ For example, in Hutcheson v. United States, the Court held that "[a]t most, Kilbourn is authority for the proposition that Congress cannot constitutionally inquire 'into the private affairs of individuals who hold no office under the government' when the investigation 'could result in no valid legislation on the subject to which the inquiry referred.'"¹²⁷

Despite its criticism of Kilbourn, the Court has still expressed concern that congressional investigations into private conduct could infringe on personal privacy. In the 1957 decision of Watkins v. United States, the Court, in an opinion overturning a criminal contempt of Congress conviction on due process grounds, also discussed more generally Congress's investigative powers and described the legislative branch as having "no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress."¹²⁸ Although acknowledging that "[t]he public is, of course, entitled to be informed concerning the workings of its government," that justification for government oversight "cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals."¹²⁹ As such, an investigation into "individual affairs is invalid if unrelated to any legislative purpose," as are attempts to "expose for the sake of exposure."¹³⁰

Functions Committed to Another Branch of Government

A second class of investigations that may lack a legislative purpose are those that appear to usurp functions exclusively committed to another branch of government. In Barenblatt v. United States the Supreme Court explained, "Lacking the judicial power given to the Judiciary, [Congress] cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive."¹³¹ The Court elaborated on this separation of powers line of reasoning in Watkins, where it stated that Congress is not "a law enforcement or trial agency. These are functions of the executive and judicial departments of government.… Investigations conducted solely for the personal aggrandizement of the investigators or to 'punish' those investigated are indefensible."¹³² Most recently, in Mazars, the Court reaffirmed that

Congress may not issue a subpoena for the purpose of "law enforcement," because "those powers are assigned under our Constitution to the Executive and the Judiciary." Thus Congress may not use subpoenas to "try" someone "before [a] committee for any crime or wrongdoing."¹³³

While it is clear that Congress cannot arrogate to itself either the executive or judicial function by attempting to directly enforce the law or otherwise prosecute and try an individual for wrongdoing, it is not clear how this separation of powers constraint applies to investigations touching on other exclusive functions of the executive or judicial branches.¹³⁴ In Tenney v. Brandhove, for example, the Court suggested that "[t]o find that a committee's investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive."¹³⁵

Legislative Purpose and Investigations Involving the President

The legislative purpose test appears to apply with greater scrutiny and less deference to Congress when a committee is investigating the President. In Trump v. Mazars, President Trump brought suit in his personal capacity to block his banks and accounting firm from complying with various committee subpoenas for the President's personal financial records.¹³⁶ Applying the deferential legislative purpose standard used by the Court in previous cases,¹³⁷ the opinions below concluded that the committees had a valid legislative purpose for seeking the President's personal records.¹³⁸ On appeal to the Supreme Court, Mazars presented the Court with its first opportunity to directly consider the legislative purpose test in a congressional investigation of the President.

The Mazars opinion clarified that in the context of congressional investigations the President must, as a constitutional matter, be treated differently than others.¹³⁹ The opinion described the courts below as having mistakenly "treated these cases much like any other," applying standards and principles established in "precedents that do not involve the President's papers."¹⁴⁰ Subpoenas for the President's personal records, the Court determined, involve significant separation-of-powers concerns that trigger a different, more scrutinizing approach to the scope of Congress's power. But the Court rejected as inappropriate invitations to import the heightened "demonstrated, specific need" or "demonstrably critical" standards that had been used in prior cases involving executive privilege—a privilege not at issue in Mazars due to the personal nature of the documents sought.¹⁴¹ Instead, the Chief Justice Roberts's opinion for the Court identified at least four "special considerations" to help lower courts to appropriately balance the "legislative interests of Congress" with "the 'unique position' of the President" when a committee subpoena seeks the President's private papers.¹⁴²

• First, a reviewing court should "carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers."¹⁴³ The Court elaborated that Congress's "interests are not sufficiently powerful to justify access to the President's personal papers when other sources could provide Congress the information it needs."¹⁴⁴
• Second, courts "should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective."¹⁴⁵ Specific demands, the High Court reasoned, are less likely to "intrude" on the operation of the Presidency.¹⁴⁶
• Third, "courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose."¹⁴⁷ To this end, Congress's position is strengthened when a congressional committee can provide "detailed and substantial evidence" of its legislative purpose.¹⁴⁸
• Fourth, "courts should be careful to assess the burdens imposed on the President by a subpoena."¹⁴⁹ Here the Court reasoned that in comparison to the burdens imposed by judicial subpoenas, the burdens imposed on the President by congressional subpoenas "should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage."¹⁵⁰

These "special considerations" appear to subject congressional subpoenas for the President's personal records to a less deferential standard than other congressional subpoenas. The Court cautioned that "other considerations," besides those specifically identified, might also be relevant, as "one case every two centuries does not afford enough experience for an exhaustive list" of factors to be considered by a reviewing court.¹⁵¹

Mazars' "special considerations" appear to be tailored to Presidential records.¹⁵² To view the case otherwise—for example, to apply the "special considerations" to congressional subpoenas issued as part of a more typical oversight investigation into agency activity—would put the opinion in tension with previous precedent, including the principles established in McGrain.¹⁵³ Nothing in the Mazars opinion appears to signal that the majority intended to alter previously established principles in congressional investigations not involving the President.

Authority of Congressional Committees

The implied constitutional authority to conduct investigations resides independently in both the House of Representatives and the Senate, but each chamber has delegated responsibility for carrying out the investigative role to its standing and select committees.¹⁵⁴ For example, under House rules, a standing House committee may conduct "such investigations and studies as it considers necessary or appropriate in the exercise of its responsibilities."¹⁵⁵ In the Senate, each standing committee "may make investigations into any matter within its jurisdiction."¹⁵⁶ As a result, the power of inquiry and investigation is one that is exercised primarily by committees of Congress rather than by the full House or Senate. And that investigative role is more than a discretionary power; it is a statutory duty. Under 2 U.S.C. §190d, "each standing committee of the Senate and the House of Representatives shall review and study, on a continuing basis, the application, administration, and execution of those laws … the subject matter of which is within the jurisdiction of that committee."¹⁵⁷

The enabling chamber rule or resolution that gives a committee life is also the charter that defines the grant and limitations of the committee's investigative powers. The committee charter constrains committees in two meaningful ways. First, as a creation of its parent house, a congressional committee may inquire only into matters within the scope of the authority that has been delegated to it—that is, within its jurisdiction.¹⁵⁸ Second, in conducting investigations, a committee must generally comply with any procedural requirements contained in its charter, its own rules, or the rules of the parent chamber.¹⁵⁹

Enforcement of these limitations by the courts, like judicial scrutiny of other internal congressional matters, is generally quite limited.¹⁶⁰ Indeed, the Speech or Debate Clause generally prevents direct challenges to how a committee carries out its legislative and investigative operations.¹⁶¹ As a result, it is generally only when the committee seeks to enforce a subpoena or other investigative demands that a court is presented with the opportunity to determine compliance with procedural rules.¹⁶² Even then, courts are generally reluctant to examine internal matters unless a House, Senate, or committee rule implicates constitutional rights.¹⁶³ However, it does appear that when a court is forced to either construe the scope of a committee's jurisdiction or interpret committee rules, it will generally look to the words of the rule or resolution itself and then, if necessary, to the usual sources of legislative history such as floor debate, legislative reports, and prior committee practice and interpretation.¹⁶⁴

Jurisdiction

A committee may not exercise compulsory investigative powers in connection to matters outside of its jurisdiction.¹⁶⁵ This jurisdictional limitation is fundamental to the operation of a committee, as it arises from the very nature of the "source" of the committee's authority: the delegation from the parent body.¹⁶⁶ A committee "is restricted to the missions delegated to it by the parent body," and "no witness can be compelled to make disclosures on matters outside that area."¹⁶⁷ For standing committees, that jurisdictional delegation can generally be found in House Rule X and Senate Rule XXV.¹⁶⁸

The consequence of a committee exceeding its jurisdiction is apparent from United States v. Rumely.¹⁶⁹ There, the secretary of an organization that published and sold books of "particular political tendentiousness" challenged his conviction for contempt of Congress on the grounds that the committee that cited him for contempt had exceeded its jurisdiction.¹⁷⁰ The resolution establishing the committee, which the Supreme Court viewed as "the controlling charter of the committee's powers," had authorized the committee to investigate "lobbying activities intended to influence … legislation."¹⁷¹ The Court interpreted "lobbying activities" to extend only to "representation made directly to the Congress" and thus concluded that the committee had no authority to investigate or enforce a subpoena against a witness who had sought only to influence public opinion.¹⁷²

In adopting this interpretation of "lobbying activities," the Court expressly stated that it gave the committee's jurisdiction a "more restricted scope" in part so as to avoid the possibility that enforcement of the subpoena would violate the witness's First Amendment right to engage in political speech.¹⁷³ The Court has followed a similar approach in subsequent cases, at times adopting a narrow interpretation of either a committee jurisdiction or the scope of an individual investigation in order to avoid the possibility of a constitutional conflict on the grounds that "[p]rotected freedoms should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a particular legislative need."¹⁷⁴

Committee Rules

A committee must also generally comply with chamber and committee rules relating to the conduct of investigations.¹⁷⁵ For example, in Yellin v. United States, the Supreme Court overturned a contempt conviction stemming from a witness's refusal to answer questions in a public hearing.¹⁷⁶ The witness had argued that the conviction was improper because the committee had failed to comply with its own rules regarding the availability of closed, or executive, sessions.¹⁷⁷ Those rules expressly required that in determining whether to close a hearing, the committee consider the possible injury to the witness's reputation that may result from a public hearing.¹⁷⁸ The Court held that in exercising investigative powers, a committee may be "held to observance of its rules."¹⁷⁹ Finding that the committee had not given due consideration to the witness's requests for a private hearing, the Court overturned the contempt conviction.¹⁸⁰ The Court reached a similar conclusion in Gojack v. United States.¹⁸¹ There a committee rule required that all "major investigations" be initiated only with the majority approval of the committee.¹⁸² The underlying investigation that gave rise to the contempt prosecution had not been authorized. Thus, the court reversed the conviction.¹⁸³

Legal Tools Available for Oversight and Investigations

There is no single method or set of procedures for engaging in legislative oversight or conducting an investigation.¹⁸⁴ Although public attention often focuses on public hearings and subpoenaed witnesses, congressional committees frequently rely on informal tools to gather the information necessary to accomplish the committee's investigative goals, such as staff-level communication and contacts and voluntary compliance with document and briefing requests.¹⁸⁵ In many ways, these informal and voluntary tools represent the unseen but predominant components of congressional investigations.

Committees also have more formal mechanisms for collecting necessary testimony from relevant witnesses. Chief among these tools are hearings and, when authorized, depositions.

Hearings

As previously noted, standing committees of the House and Senate are authorized to hold hearings for purposes of receiving testimony.¹⁸⁶ This testimony is often, but not always, received under oath.¹⁸⁷

Both the House and the Senate, as well as individual committees, have adopted a variety of rules governing the conduct of hearings. These rules include quorum requirements, basic procedural constraints, and witness and minority protections.¹⁸⁸ For example, both chambers permit a reduced quorum for taking testimony and receiving evidence. House committees are required to have at least two Members present to take testimony.¹⁸⁹ Senate rules allow the taking of testimony with only one Member in attendance.¹⁹⁰ Most committees have adopted the minimum quorum requirement, and some require a higher quorum for sworn rather than unsworn testimony.¹⁹¹

Senate and House rules also limit the authority of their committees to meet in closed session.¹⁹² For example, the House requires testimony to be held in closed session if a majority of a committee or subcommittee determines it "may tend to defame, degrade, or incriminate any person."¹⁹³ Such testimony taken in closed session is normally releasable only by a majority vote of the committee. Similarly, confidential material received in a closed session requires a majority vote for release.

In oversight and investigative hearings, the chair usually makes an opening statement. In the case of an investigative hearing, the opening statement can be an important means of defining the subject matter of the hearing and thereby establishing the pertinence of questions asked the witnesses.¹⁹⁴ A witness does not have the right to make a statement before being questioned, but the opportunity is usually accorded. Committee rules may prescribe the length of such statements and also require that written statements be submitted in advance of the hearing.¹⁹⁵ Questioning of witnesses may be structured so that Members alternate for specified lengths of time.

A congressional investigative hearing is unique and generally should not be analogized to a criminal proceeding, as the same constitutional rights do not attach. Because the Constitution is generally applicable to all forms of government action, most provisions of the Bill of Rights apply to Congress's investigative activities as they do to congressional legislation.¹⁹⁶ For example, witnesses in a committee hearing may assert their Fifth Amendment right against self-incrimination.¹⁹⁷ But not all constitutional rights are applicable to congressional investigations.¹⁹⁸ Consider, for example, a criminal defendant's Sixth Amendment rights to present one's own evidence and to confront and cross-examine witnesses.¹⁹⁹ The D.C. Circuit has held that "the distinguishing factors" between a legislative investigation and a criminal proceeding "cause" congressional investigations "to be outside the guarantees of the … the confrontation right guaranteed in criminal proceedings by the Sixth Amendment."²⁰⁰ A witness in a committee hearing therefore has no right to offer his or her own evidence or cross-examine other witnesses, though a committee may, at its discretion, afford a witness such an opportunity.²⁰¹ The application of another Sixth Amendment right, the right to effective assistance of counsel, may also not apply in a congressional investigation.²⁰² Nevertheless, House, Senate, and committee rules afford witnesses a limited form of that right. Under House rules, the role of counsel is restricted to advising a witness of his or her "constitutional rights,"²⁰³ and some committees have adopted rules specifically prohibiting counsel from "coaching" witnesses during their testimony.²⁰⁴

Deposition Authority

Authorized congressional committees may also use depositions as a tool for gathering testimony during an investigation. A deposition is a formalized interview, taken under oath, generally transcribed or recorded, and governed by chamber and committee rules.²⁰⁵ The standing rules of the House authorize only the Committee on Oversight and Reform to take depositions.²⁰⁶ In recent Congresses, however, the House has provided deposition authority to additional committees through resolution. For example, in the 117^th Congress, the House authorized all standing committees other than the Committee on Rules to take depositions.²⁰⁷ In the Senate, the Committees on Agriculture, Nutrition, and Forestry; Ethics; Homeland Security and Governmental Affairs and its Permanent Subcommittee on Investigations; Indian Affairs; Foreign Relations; and Commerce, Science, and Technology and the Special Committee on Aging all appear to have some form of deposition authority.²⁰⁸

The House Committee on Rules has previously adopted a number of procedural rules governing the conduct of depositions in the House.²⁰⁹ Among other requirements, these rules establish that

• depositions may be taken by committee counsel without a committee member present;
• witnesses may be accompanied by nongovernmental counsel "to advise them of their rights;"
• questioning of the witness occurs in rounds, with equal time provided to both the majority and minority;
• objections are ruled upon by the committee chair, with appeal available to the full committee; and
• the chair and ranking member "shall consult regarding the release of deposition testimony," with disagreements referred to the full committee for resolution.²¹⁰

Staff depositions afford a number of significant advantages for committees engaged in complex investigations, including the ability to obtain sworn testimony quickly and confidentially without the necessity of Members devoting time to lengthy hearings that may be unproductive because witnesses do not have the facts needed by the committee or refuse to cooperate. Depositions also occur in private, which may be more conducive to candid responses than public hearings. Depositions also provide committees with an opportunity to verify witness statements that might defame or tend to incriminate third parties before they are repeated publicly and prepare for hearings by screening witness testimony in advance, which may obviate the need to call other witnesses. Congress has also enhanced the efficacy of the staff deposition process by establishing the applicability of criminal prohibition against false statements to statements made during congressional proceedings, including the taking of depositions.²¹¹

In the House, neither the Rules Committee deposition rules nor the Committee on Oversight and Reform's own rules provide a government witness with a right to be accompanied by agency counsel. A deponent is instead entitled to be accompanied only by private, nongovernmental counsel.²¹² This restriction has led to some conflict with the executive branch, which has asserted that a "congressional committee may not constitutionally compel an executive branch witness to testify about potentially privileged matters while depriving the witness of the assistance of agency counsel."²¹³ Denying agency counsel access to the deposition would, in the executive branch's view, "compromise the President's constitutional authority to control the disclosure of privileged information and to supervise the Executive Branch's communications with congressional entities."²¹⁴ The House has rejected this argument, concluding instead that the rule "ensures that the Committee is able to depose witnesses in furtherance of its investigations without having in the room representatives of the agency under investigation."²¹⁵ Moreover, the House notes, the rule "protects the rights of witnesses by allowing them to be accompanied by personal counsel" and permits the executive branch—"[t]o the extent [it] believes that an issue that would be raised at the deposition may implicate a valid Privilege"—to protect its prerogatives by raising the privilege with the committee.²¹⁶ Although the executive branch and congressional committees have often resolved these disputes through the accommodations process, that was not the case in the 116^th Congress. Conflicts between the House and various executive branch officials resulted in directives from executive branch leadership—including the Attorney General—that officials not comply with deposition subpoenas unless accompanied by executive branch counsel.²¹⁷ The House responded by holding the Attorney General in contempt of Congress.²¹⁸

The Subpoena Power

When possible, committees generally seek to obtain voluntary compliance with their requests for documents, testimony, and other information.²¹⁹ Such an approach tends to be more efficient, as many voluntary requests are complied with either in part or in full. Even when a request is met with resistance, the disagreement may initiate the accommodations process, a long-standing practice by which negotiations between the committee and the executive agency generally lead to a resolution acceptable to both parties.²²⁰ Nevertheless, the Supreme Court has observed, "Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete, so some means of compulsion are essential to obtain what is needed."²²¹ Thus, when Congress finds an inquiry blocked by the withholding of information, or where the traditional process of negotiation and accommodation²²² is considered inappropriate or unavailing, a subpoena—for either testimony or documents—may be used to compel compliance with congressional demands.²²³

The subpoena is a well-established component of Congress's oversight and investigative authority.²²⁴ In particular, the Court has repeatedly characterized the subpoena, and the process to enforce it, as a "necessary and appropriate attribute of the power to legislate."²²⁵ In Watkins, the Supreme Court described the obligations that attach to a congressional subpoena as follows:

It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation.²²⁶

As such, an individual—whether a member of the public or an executive branch official—has a legal obligation to comply with a duly issued and valid congressional subpoena unless a valid and overriding privilege or other legal justification excuses that compliance.²²⁷

A properly authorized subpoena issued by a committee or subcommittee that has been delegated that authority by the parent chamber has the same force and effect as a subpoena issued by the House or Senate itself. Senate Rule XXVI(1) and House Rule XI(2)(m)(1) presently empower all standing committees and subcommittees to issue subpoenas requiring the attendance and testimony of witnesses and the production of documents.²²⁸ All standing committees in the House and some standing committees in the Senate may also issue subpoenas for depositions.²²⁹

The rules governing issuance of committee subpoenas vary by committee. In the House, the vast majority of committees now permit the committee chair to unilaterally issue a subpoena, usually after giving notice to or consulting with the ranking member.²³⁰ In contrast, only the Permanent Subcommittee on Investigations in the Senate currently permits the chair to issue a subpoena without the consent of the ranking member.²³¹

Limitations on Challenging a Subpoena

The Supreme Court has ruled that the separation of powers and the Speech or Debate Clause restrict both a witness's ability to mount a legal challenge to the subpoena's validity and the judiciary's ability to enjoin a subpoena's issuance.²³² For example, the recipient of a congressional subpoena generally may not challenge that subpoena's validity prior to its enforcement. Instead, the recipient may refuse to comply, risk being cited for criminal contempt or becoming the subject of a civil enforcement lawsuit (discussed below), and then raise the objections in the civil case or as a defense in the criminal prosecution.

Courts have been more amenable to third-party, pre-enforcement subpoena challenges. Such lawsuits generally arise when a committee issues a subpoena for documents not to the target of the investigation but rather to a third-party custodian of records.²³³ In such a scenario the party with a personal interest in the records is "not in a position to assert its claim of constitutional right by refusing to comply with a subpoena"²³⁴ and may instead bring suit against the neutral third party to block compliance with the subpoena. The Supreme Court has suggested that the Constitution "does not bar the challenge so long as members of the [issuing committee or subcommittee] are not, themselves, made defendants in a suit to enjoin implementation of the subpoena."²³⁵

Responding to Non-Compliance: Subpoena Enforcement

Ultimately, the subpoena is only as effective as the means by which it is enforced. Without a process by which Congress can coerce compliance or deter non-compliance, the subpoena would be reduced to a formalized request rather than a constitutionally based demand for information.²³⁶

If a witness is initially reluctant to comply with a committee subpoena, Congress can sometimes use the application of various forms of legislative leverage, along with an informal political process of negotiation and accommodation, to obtain what it needs.²³⁷ With regard to executive branch officials, Congress exercises substantial influence through the legislative control of agency authority, funding, and, in the case of the Senate, confirmation of certain agency officials.²³⁸ The use or threatened use of these powers in a way that would impose burdens on an agency can encourage compliance with subpoenas (or make it more likely that requested information will be provided without need to issue a subpoena) and solidify Congress's position when trying to negotiate a compromise during an investigative dispute with the executive branch.²³⁹

Besides leveraging its general legislative powers, Congress currently employs an ad hoc combination of methods to directly enforce its subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena.²⁴⁰ Once the contempt citation is received, any later prosecution lies within the control of the executive branch.²⁴¹ Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply.²⁴² This process of civil enforcement relies on the help of the courts to enforce congressional demands.

Criminal Contempt of Congress

The criminal contempt of Congress statute, enacted in 1857 and only slightly modified since, makes the failure to comply with a duly issued congressional subpoena a criminal offense.²⁴³ The statute, now codified under 2 U.S.C. §192, provides that any person who "willfully" fails to comply with a properly issued committee subpoena for testimony or documents is guilty of a misdemeanor, punishable by a substantial fine and imprisonment for up to one year.²⁴⁴

The criminal contempt statute outlines the process by which the House or Senate may refer the non-compliant witness to the DOJ for criminal prosecution. Under 2 U.S.C. §194, once a committee reports the failure to comply with a subpoena to its parent body, the President of the Senate or the Speaker of the House is directed to "certify[] the statement of facts … to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action."²⁴⁵ The statute does not expressly require approval of the contempt citation by the committee's parent body, but both congressional practice and judicial decisions suggest that approval may be necessary.²⁴⁶

A successful contempt prosecution may lead to criminal punishment of the witness in the form of incarceration, a fine, or both.²⁴⁷ Because the criminal contempt statute is punitive, its use is mainly as a deterrent. In other words, while the threat of criminal contempt can be used as leverage to encourage compliance with a specific request, a conviction does not necessarily lead to release of the information to Congress.²⁴⁸

Although approval of a criminal contempt citation under Section 194 appears to impose a mandatory duty on the U.S. Attorney to submit the violation to a grand jury, the executive branch has repeatedly asserted that it retains the discretion to determine whether to do so.²⁴⁹ As a result, efforts to punish an executive branch official for non-compliance with a committee subpoena through the criminal contempt of Congress statute will likely prove unavailing in certain circumstances. For example, when the President directs or endorses the non-compliance of the official, such as when the official refuses to disclose information pursuant to the President's decision that the information is protected by executive privilege, past practice suggests that the DOJ is unlikely to pursue a prosecution for criminal contempt.²⁵⁰ As a result, it would appear that there is not currently a credible threat of prosecution for violating 2 U.S.C. §192 when an executive branch official refuses to comply with a congressional subpoena at the direction of the sitting President.²⁵¹ The DOJ has been more willing to pursue a criminal contempt prosecution against a witness whose non-compliance is based on the directive of a former President, at least when the sitting President does not concur with the former President's privilege assertion.²⁵²

Even when the official is not acting at the clear direction of the sitting President, the executive branch has contended that it retains the authority to make an independent assessment of whether the official (or former official) has in fact violated the criminal contempt statute.²⁵³ If the executive branch determines either that the statute has not been violated or that a defense is available that would bar the prosecution, then it may—in an exercise of discretion—leave a congressional citation unenforced. The criminal contempt statute, therefore, may have limited utility as a deterrent to non-compliance with congressional subpoenas by executive branch officials faced with similar circumstances.²⁵⁴

Civil Enforcement of Subpoenas

Both the House and Senate have also enforced subpoenas through civil suits in the federal courts by a process known as civil enforcement. Under this process, either chamber may unilaterally authorize one of its committees or another legislative entity to file a suit in federal district court seeking a court order declaring that the subpoena recipient is legally required to comply with the demand for information.²⁵⁵

A successful civil enforcement suit generally has the benefit of securing compliance with the congressional subpoena—meaning the committee may obtain the information it seeks. If the court orders compliance with the subpoena and disclosure of the information, generally after finding both that the subpoena is valid and that the individual has not invoked an adequate privilege justifying non-compliance, continued defiance may lead to contempt of court as opposed to contempt of Congress.²⁵⁶

Although the executive branch has at times disputed Congress's authority to bring civil enforcement lawsuits, at least against current or former executive branch officials, a handful of cases dating back to the Nixon era have upheld House and Senate authority to bring such lawsuits.²⁵⁷ Nevertheless, the scope of Congress's authority to enforce subpoenas in court, especially by the House, will likely remain the subject of continued litigation.

In the past, authorization for a subpoena enforcement lawsuit has typically been provided through a simple House or Senate resolution.²⁵⁸ In the Senate, the adoption of an authorizing resolution is part of the existing statutory framework governing that chamber's enforcement of subpoena in court.²⁵⁹ The House, however, clarified during the 116^th Congress that even in the absence of a specific authorizing resolution, the chair of each standing committee also "retains the ability to initiate … any judicial proceeding before a Federal court … affirming the duty of the recipient of any subpoena duly issued by that committee to comply with that subpoena" when authorized to do so by the Bipartisan Legal Advisory Group (BLAG).²⁶⁰ The House further explained that authorization from BLAG in the subpoena enforcement context "is the equivalent of a vote of the full House of Representatives."²⁶¹

A federal statute provides the jurisdictional basis for the Senate's exercise of its civil enforcement power.²⁶² Under 28 U.S.C. §1365, the U.S. District Court for the District of Columbia (D.C. District Court) has jurisdiction "over any civil action brought by the Senate or committee or subcommittee of the Senate to enforce … any subpoena."²⁶³ The law, however, makes clear that the grant of jurisdiction is limited and "shall not apply" to an action to enforce a subpoena issued to an executive branch official acting in his or her official capacity who has asserted a "governmental privilege."²⁶⁴ Yet at least one district court has suggested that the limitation found within §1365 does not necessarily bar the courts from exercising jurisdiction over Senate claims to enforce a subpoena against an executive official under other jurisdictional provisions.²⁶⁵

The House has no corresponding statutory framework but has previously, and successfully, authorized its committees to enforce their subpoenas in court.²⁶⁶ Nevertheless, the House's authority in this regard has been subject to some debate. The D.C. Circuit, for example, wrestled with the question of civil enforcement in Committee on the Judiciary v. McGahn. In McGahn, the House initiated a suit to enforce a committee subpoena for testimony from former White House Counsel Don McGahn. A three-judge panel initially dismissed the case. Breaking from prior district court decisions, the opinion held that the judiciary "lack[ed] authority to resolve disputes between the Legislative and Executive Branches until their actions harm an entity 'beyond the [Federal] Government.'"²⁶⁷ That opinion, however, was reversed on appeal, with the full D.C. Circuit holding en banc that neither the separation of powers nor principles of standing barred the courts from hearing the House's lawsuit.²⁶⁸ On remand, however, the three-judge panel again rejected the House's lawsuit, this time holding that the House lacked a cause of action.²⁶⁹ In reaching that decision, the panel relied partly on the fact that "Congress has granted an express cause of action to the Senate—but not to the House."²⁷⁰ Like the first panel decision on standing, this second panel decision on whether the committee had a cause of action was vacated after it was accepted for en banc review.²⁷¹ While that appeal was pending, the parties reached a settlement by which Mr. McGahn sat for a closed-door transcribed interview.²⁷² Pursuant to that agreement, the D.C. Circuit fully vacated the panel opinion after finding that the committee lacked a cause of action, but the en banc decision holding that the committee had standing to pursue these subpoena enforcement claims remains in place.²⁷³ As such, the ultimate precedential impact of the McGahn litigation appears to have been to remove the standing hurdle to House committees utilizing the judiciary to enforce their subpoenas, at least in the D.C. Circuit.

The Historical Process: Inherent Contempt

Historically, the House and Senate relied on their own institutional power to not only enforce congressional subpoenas but also to respond to other actions that either house viewed as obstructing its legislative processes or prerogatives.²⁷⁴ Indeed, the criminal contempt statute was not enacted until 1857, and the courts do not appear to have entertained a civil action to enforce a congressional subpoena against an executive official until the Watergate era.²⁷⁵ For much of American history the House and Senate instead used what is known as the inherent contempt power to enforce their investigative powers.

The inherent contempt power is a constitutionally based authority given to each house to unilaterally arrest and detain an individual found to be "obstruct[ing] the performance of the duties of the legislature."²⁷⁶ The power is therefore broader in scope than the criminal contempt statute in that it may be used not only to combat subpoena non-compliance but also in response to other actions that could be viewed as "obstructing" or threatening either house's exercise of its legislative powers.²⁷⁷

In practice, the inherent contempt power has been exercised using a multi-step process. Upon adopting a House or Senate resolution authorizing the execution of an arrest warrant by that chamber's Sergeant at Arms, the individual alleged to have engaged in contemptuous conduct is taken into custody and brought before the House or Senate.²⁷⁸ A hearing or "trial" follows in which allegations are heard and defenses raised.²⁷⁹ Although generally occurring before the full body, it would appear likely that the contempt hearing could also permissibly take place before a congressional committee who reports its findings to the whole House or Senate.²⁸⁰ If judged guilty, the House or Senate may then direct that the witness be detained or imprisoned until the obstruction to the exercise of legislative power is removed.²⁸¹ Although the purpose of the detention may vary, for subpoena non-compliance the use of the power has generally not been punitive.²⁸² Rather, the goal is to detain the witness until he or she discloses the information sought but not beyond the end of the Congress.²⁸³

Despite its title, "inherent" contempt is more accurately characterized as an implied constitutional power.²⁸⁴ The Supreme Court has repeatedly held that although the contempt power is not specifically granted by the Constitution, it is still "an essential and appropriate auxiliary to the legislative function" and thus implied from the general vesting of legislative powers in Congress.²⁸⁵ The Court has viewed the power as one rooted in self-preservation, concluding that the "power to legislate" includes an "implied right of Congress to preserve itself" by dealing "with direct obstructions to its legislative duties" through contempt.²⁸⁶

Despite its potential reach, some observers have described the inherent contempt power as cumbersome, inefficient, and "unseemly."²⁸⁷ Presumably for these reasons, it does not appear that either house has exercised its inherent contempt power to enforce subpoenas or to remove any other obstruction to the exercise of the legislative power since the 1930s.²⁸⁸ Even so, the mere threat of arrest and detention by the Sergeant at Arms can be used to encourage compliance with congressional demands. For example, Senator Sam Ervin, when serving as chair of the Senate Select Committee on Presidential Campaign Activities, invoked the inherent contempt power several times to encourage compliance with the committee's requests for information during its investigation of the Nixon Administration.²⁸⁹ Although the power has long lain dormant, it remains a tool that Congress may use to enforce subpoenas.²⁹⁰

Criminal Provisions Protecting the Investigative Power

Along with the criminal contempt statute already discussed, Congress has enacted various criminal provisions to protect the integrity of congressional investigations. While these provisions generally seek to deter witnesses from misleading or obstructing congressional committees in their exercise of the investigative power, they cannot be enforced directly by Congress, nor can committees compel enforcement by the executive branch. Instead, enforcement decisions—as with all criminal provisions—are made wholly by the executive branch. A committee may refer a possible offense to the DOJ with a recommendation that an investigation be initiated, but the ultimate decision on prosecution is retained by the executive branch.²⁹¹

Testimony Under Oath

A witness under oath before a congressional committee who willfully gives false testimony is subject to prosecution for perjury under 18 U.S.C. §1621. The false statement must be "willfully" made before a "competent tribunal" and involve a "material matter."²⁹² A quorum must be present for a legislative committee to be competent for perjury purposes.²⁹³ Both houses have adopted rules establishing less than a majority of members as a quorum for taking testimony, normally two members for House committees²⁹⁴ and one member for Senate committees.²⁹⁵ The requisite quorum must be present at the time the alleged perjurious statement is made, not merely at the time the session convenes.²⁹⁶ No prosecution for perjury will lie for statements made only in the presence of committee staff unless the committee has deposition authority and has taken formal action to allow it.²⁹⁷

Unsworn Statements

Most statements made to congressional committees at both the investigatory and the hearing phases of oversight are unsworn. Even when not under oath, providing willfully false testimony is still a criminal offense.²⁹⁸ Under 18 U.S.C. §1001, false statements by a person in "any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House and Senate" are punishable by a fine of up to $250,000 or imprisonment for not more than five years, or both.²⁹⁹ Given the breadth, the statute would appear to apply to false statements made not only in hearings and depositions but also other interviews with committee staff.

Obstruction of a Congressional Proceeding

Federal law also criminalizes certain acts that would obstruct a congressional investigation. Under 18 U.S.C. §1505 it is unlawful to "corruptly" obstruct or attempt to obstruct the "due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress."³⁰⁰ Corruptly, for purposes of the statute, means "acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information."³⁰¹

Limitations on Congressional Authority

The previous section established the scope of Congress's investigatory power. This section briefly addresses how the exercise of this power may be constrained by the Constitution, the common-law tradition, or federal statute.

Constitutional Limitations

As discussed, a congressional investigation must have a legislative purpose to be a valid exercise of Congress's authority under Article I of the Constitution.³⁰² But the investigatory power is also limited by constraints found elsewhere in the text and structure of the Constitution. The Supreme Court has observed that when demanding information, "Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action," including "the relevant limitations of the Bill of Rights."³⁰³ As a result, "recipients of legislative subpoenas "retain their constitutional rights throughout the course of an investigation."³⁰⁴

First Amendment

Although the First Amendment, by its terms, is expressly applicable only to legislation that abridges freedom of speech, press, religion (establishment or free exercise), or assembly, the Supreme Court has held that the First Amendment also restricts Congress in conducting oversight and investigations.³⁰⁵ In Barenblatt v. United States, the Court stated that "where First Amendment rights are asserted to bar government interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown."³⁰⁶ In balancing the personal interest in privacy against the congressional need for information, the Court has declared that "the critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosure from an unwilling witness."³⁰⁷ When evaluating Congress's interest in cases involving the First Amendment, the Court has generally emphasized the requirements discussed above concerning authorization for the investigation, delegation of power to investigate to the committee involved, and the existence of a legislative purpose.³⁰⁸

Though finding the First Amendment applicable to congressional investigations, the Supreme Court has never relied on the First Amendment to invalidate a congressional subpoena or to reverse a criminal contempt of Congress conviction. And unlike the Fifth Amendment privilege against self-incrimination, it is clear that the First Amendment does not give a witness an absolute right to refuse to respond to congressional demands for information.³⁰⁹

Nevertheless, First Amendment concerns can inform Congress's deliberations on whether to hold a non-cooperative witness in contempt of Congress. The Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce (since renamed the Committee on Energy and Commerce), in the course of its probe of allegations that deceptive editing practices were employed in producing the television news documentary program The Selling of the Pentagon, subpoenaed Frank Stanton, the president of CBS. He was directed to deliver to the subcommittee the "outtakes" of the program.³¹⁰ When, on First Amendment grounds, Stanton declined to provide the subpoenaed materials, the subcommittee unanimously voted a contempt citation. The full committee voted 25-13 to report the contempt citation to the full House.³¹¹ After extensive debate, the House failed to adopt the committee report, voting instead to recommit the matter to the committee.³¹² During the debate, several Members expressed concern that approval of the contempt citation would have a "chilling effect" on the press and would unconstitutionally involve the government in the regulation of the press.³¹³

Fourth Amendment

The Fourth Amendment primarily protects congressional witnesses against subpoenas that are unreasonably broad or burdensome.³¹⁴ However, the extent of this protection is not clear and has received little attention in the courts. In one of the few cases addressing the issue, the Supreme Court held in the 1960 case McPhaul v. United States that a congressional subpoena seeking "all records, correspondence, and memoranda" of an organization was not unreasonably broad. As the Court explained

"Adequacy or excess in the breath of the subpoena are matters variable in relation to the nature, purposes, and scope of the inquiry." The subcommittee's inquiry here was a relatively broad one … and the permissible scope of materials that could reasonably be sought was necessarily equally broad. It is not reasonable to suppose that the subcommittee knew precisely what books and records were kept by the [organization], and therefore the subpoena could only "specify … with reasonable particularity, the subjects to which the documents … relate…." The call of the subpoena for "all records, correspondence and memoranda" of the [organization] relating to the specified subject describes them "with all of the particularity the nature of the inquiry and the [subcommittee's] situation would permit…." "The description contained in the subpoena was sufficient to enable [organization] to know what particular documents were required and to select them adequately."³¹⁵

As such, the permissible breadth of a subpoena should be considered in relation to the nature of the committee investigation.

Fifth Amendment Privilege Against Self-Incrimination

The privilege against self-incrimination afforded by the Fifth Amendment is available to a witness in a congressional investigation.³¹⁶ As such, a witness generally cannot be compelled to provide personally incriminating testimony to a committee.³¹⁷

The Supreme Court has recognized that witnesses may invoke the Fifth Amendment privilege during a congressional investigation only with regard to disclosures that are

• 1. testimonial ("relate a factual assertion or disclose information"),³¹⁸
• 2. self-incriminating (any disclosures that tends to show guilt or that furnishes any "link in the chain of evidence" needed to prosecute),³¹⁹ and
• 3. compelled (not voluntarily given).³²⁰

Oral testimony given pursuant to a subpoena and in response to committee questioning generally qualifies as testimonial and compelled. Therefore, the central inquiry in a congressional investigation setting is typically whether the responsive testimony would be "incriminating." The Supreme Court has taken a broad view of what constitutes incriminating testimony, reasoning that the privilege protects any statement "that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used."³²¹ Even a witness who denies any criminal wrongdoing can refuse to answer questions to avoid being "ensnared by ambiguous circumstances."³²²

The scope of the privilege differs significantly when a committee is demanding that the witness produce documents. The Supreme Court has made clear that the mere fact that the contents of a document may be incriminating does not mean that the document itself is protected from disclosure under the Fifth Amendment.³²³ It is only when the act of producing the documents is itself incriminating that the Fifth Amendment is triggered. That "act of production" is the only compelled act and "may have testimonial aspects and an incriminating effect," because a witness would in fact be admitting that "the papers existed, were in his possession or control, and were authentic."³²⁴

This "act of production" doctrine creates no bright-line rules, but the Court has previously reasoned that where the existence and location of a document is a "foregone conclusion," the witness "adds little or nothing to the sum total of the government's information by conceding that he in fact has the papers."³²⁵ In such a scenario, the privilege against self-incrimination is not triggered because "[t]he question is not of testimony but of surrender."³²⁶ To the contrary, it would appear that where a committee has no "prior knowledge of either the existence or the whereabouts" of the documents, the act of production will be testimonial in nature and therefore potentially privileged.³²⁷

There is no required verbal formula for invoking the privilege. Instead, courts have suggested that a committee should recognize any reasonable indication that the witness is asserting his privilege.³²⁸ Where a committee is uncertain whether the witness is invoking the privilege against self-incrimination or is claiming some other basis for declining to answer, the committee should direct the witness to specify his or her privilege or objection.³²⁹ The committee retains the right to review the assertion of the privilege by a witness to determine its validity, but the witness is not required to provide further explanation if that explanation would put him or her in peril of self-incrimination. In addition, the privilege will be recognized as waived if the waiver is made "intelligently and unequivocally."³³⁰

Even a proper invocation of the Fifth Amendment does not necessarily mean that a committee will be unable to obtain the testimony or documents that it seeks. Under federal statute, when a witness asserts the privilege, the full house or the committee conducting the investigation may seek a court order that (1) directs the witness to testify and (2) grants the witness immunity against the use of his or her testimony, or other evidence derived from this testimony, in a subsequent criminal prosecution.³³¹ To preserve the witness's Fifth Amendment rights, neither the immunized testimony that the witness gives nor evidence derived therefrom may be used against him or her in a subsequent criminal prosecution, except one for perjury or contempt relating to his or her testimony.³³² However, the witness may be convicted of the crime (the "transaction") on the basis of other evidence.³³³

An application for a judicial immunity order must be approved by a majority of the House or Senate or by a two-thirds vote of the full committee seeking the order.³³⁴ The Attorney General must be notified at least 10 days prior to the request for the order and can request a delay of 20 days in issuing the order.³³⁵ Although the order to testify may be issued before the witness's appearance,³³⁶ it does not become legally effective until the witness has been asked a question, has invoked privilege, and has been presented with the court order.³³⁷ The court's role in issuing the order has been viewed as ministerial, and thus, if the procedural requirements under the immunity statute have been met, the court may not refuse to issue the order or impose conditions on the grant of immunity.³³⁸

Fifth Amendment Due Process Rights

A witness or participant in a congressional investigation need not be accorded the same procedural rights and protections that are commonly seen in adjudicative proceedings. While the procedural protections of the Fifth Amendment's Due Process Clause may apply to congressional proceedings in some limited manner, the precise "process" that is "due" to participants depends on the nature of the proceeding.³³⁹ A congressional investigation, whether conducted for legislative or oversight purposes, is not a judicial or adjudicative proceeding but is instead an "inquest" or fact-finding proceeding. As the Supreme Court has noted, "when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used."³⁴⁰ The D.C. Circuit, for example, has explicitly stated that "the distinguishing factors" between a legislative investigation and a criminal proceeding "cause" congressional investigations "to be outside the guarantees of the due process clause of the Fifth Amendment…."³⁴¹

The Due Process Clause has been interpreted to establish a pertinency or relevancy requirement in contempt of Congress prosecutions. The Supreme Court has held that to punish a witness for failure to comply with a congressional subpoena, the relationship of the question posed to the matter under inquiry "must be brought home to the witness at the time the questions are put to him."³⁴² "Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto."³⁴³ Additionally, in a contempt proceeding, to satisfy both the requirement of due process as well as the statutory requirement that a refusal to answer be "willful," a witness should be informed of the committee's ruling on any objections raised or privileges asserted.³⁴⁴

Common-Law Privileges

Congress has generally drawn an important distinction between those privileges that derive from the Constitution and those that arise from the common law.³⁴⁵ Whereas committees must recognize and accept properly asserted constitutional privileges during an investigation, it has generally been the congressional view that investigative committees are not bound by court-created common-law privileges.³⁴⁶ Although in practice committees at times choose to recognize common-law privileges,³⁴⁷ the House especially has treated the decision as a discretionary one to be made by the committee by "weighing the legislative need for disclosure against any possible resulting injury."³⁴⁸ The underlying rationale for this position has been that Congress's exercise of its constitutionally based investigative powers cannot be impeded by court-created, common-law limitations and that each chamber's exclusive power to determine the rules of its own proceedings includes the authority to establish investigative and hearing procedures that govern the treatment of certain privileges within those proceedings.³⁴⁹

The Supreme Court recently made a statement that may be in some tension with this congressional practice. In nonbinding dicta, the Court stated in the 2020 case of Trump v. Mazars that, in addition to retaining their constitutional rights, recipients of a committee subpoena "have long been understood to retain common law and constitutional privileges with respect to certain materials…."³⁵⁰ The import of this passage is unclear. A few observers have interpreted it to indicate that the Court may view common-law privileges as applicable in a congressional proceeding.³⁵¹ That may be so, but the Court did not go so far as to state that common-law privileges can be used to shield information from Congress. Nor is it clear how a non-constitutional, common-law privilege could be a legal constraint upon Congress's exercise of its implied Article I powers.³⁵² Instead, the passage only suggests that witnesses have been "understood" to "retain" certain common-law privileges. This may have been a reference to what could be described as an informal understanding—arising from House and Senate practice—that committees at times choose to recognize and accept common-law privileges, especially the attorney-client privilege. To the extent, however, that the Court was suggesting the existence of a legal obligation, it would appear that neither the House nor the Senate has historically "understood" common-law privileges to limit the power of inquiry.³⁵³

Attorney-Client Privilege

The attorney-client privilege, which protects confidential communications made with an attorney to obtain legal advice or assistance, is one of the oldest common-law exceptions to the normal principle of full disclosure in the judicial process.³⁵⁴ In practice, the exercise of committee discretion in accepting a claim of attorney-client privilege has turned on a "weighing [of] the legislative need for disclosure against any possible resulting injury"³⁵⁵ to the witness.³⁵⁶ On a case-by-case basis, a committee can consider, among other factors

• the strength of a claimant's assertion in light of the pertinence of the documents or information sought to the subject of the investigation,
• the practical unavailability of the documents or information from any other source,
• the possible unavailability of the privilege to the claimant if it had been raised in a judicial forum, and
• the committee's assessment of the cooperation of the witness in the matter.³⁵⁷

A valid claim of attorney-client privilege is likely to receive substantial weight by the committee. Doubt as to the validity of the asserted claim, however, may diminish the force of such a claim.³⁵⁸

Other Common-Law Testimonial Privileges

The Federal Rules of Evidence recognize testimonial privileges for witnesses in judicial proceedings so that they need not reveal confidential communications between doctor and patient, husband and wife, or clergyman and parishioner.³⁵⁹ Congressional committees have not viewed themselves as legally required to allow a witness to decline to testify on the basis of these and similar testimonial privileges.³⁶⁰ And as previously noted, the various rules of procedure that are generally applicable to judicial proceedings, such as the right to cross-examine and call other witnesses, need not be accorded to a witness in a congressional hearing.³⁶¹

Executive Privilege

Various executive privileges are sometimes invoked as a reason not to comply with congressional requests for information. The foundation for these privileges is not always clear, as some derive from the Constitution, others from the common law, and still others from a combination of both.³⁶²

There is not a single "executive privilege." Instead, there exists a suite of distinct privileges, each possessing a different—though sometimes overlapping—scope.³⁶³ The political branches, in support of their often competing interests and priorities, have adopted somewhat divergent views on these different component privileges. Whereas Congress has generally interpreted executive privilege narrowly, limiting its application to the types of presidential, national security, and diplomatic communications referenced by the Supreme Court in the seminal decision of United States v. Nixon,³⁶⁴ the executive branch has historically viewed executive privilege more broadly, providing protections to a number of different categories of documents and communications that implicate executive branch confidentiality interests.³⁶⁵ Under the executive branch's interpretation, these privileges include

• the state secrets privilege, which protects certain military, diplomatic, and national security information;³⁶⁶
• the presidential communications privilege, which generally protects confidential communications between the President and his advisors that relate to presidential decisionmaking, as well as a certain subset of communications not involving the President but nonetheless made for purposes of advising the President;³⁶⁷
• the deliberative process privilege, which protects predecisional and deliberative communications within executive branch agencies;³⁶⁸ and
• the law enforcement privilege, which protects the contents of open (and sometimes closed) law enforcement files, including communications related to investigative and prosecutorial decisionmaking.³⁶⁹

The executive branch has tended to consolidate these various privileges into one "executive privilege," particularly when responding to congressional investigative requests.³⁷⁰ Congressional committees, on the other hand, have typically distinguished between the different individual privileges.³⁷¹

There are various reasons the executive privileges may appropriately be treated as distinct. They protect different types of communications and appear to arise from different sources of law (e.g., the Constitution, judicial common law, or history and practice) with some more firmly established in judicial precedent than others. As a result, the privileges apply with different strengths and are balanced against judicial or congressional needs in different ways. For example, when faced with a dispute over compelled disclosure, courts have "traditionally shown the utmost deference" to presidential claims of a need to protect military or diplomatic secrets.³⁷² The President's more generalized interest in the confidentiality of his other communications (the presidential communications privilege), though also arising implicitly from the Constitution, has not been "extended this high degree of deference"³⁷³ and may be overcome by Congress when access is "demonstrably critical to the responsible fulfillment of the Committee's function."³⁷⁴ The other privileges have been given less weight and must be assessed differently in the face of an exercise of Congress's investigative powers. For example, when compared to the presidential communications privilege, the deliberative process privilege is more easily overcome by Congress and "disappears altogether when there is any reason to believe government misconduct occurred."³⁷⁵ The legal source of the deliberative process privilege also appears to be different from the presidential communications privilege, as the former arises "primarily" from the common law³⁷⁶ but may have a "constitutional dimension,"³⁷⁷ whereas the latter is "inextricably rooted in the separation of powers."³⁷⁸ Least potent are those executive privileges that arise purely from historical practice or reflect the judicial common law. These have generally been viewed, at least by Congress, as legally insufficient to justify non-compliance with a congressional subpoena.³⁷⁹

Of the various executive privileges, the deliberative process privilege is most frequently implicated in congressional oversight investigations because it gives protection to the very decisionmaking process that Congress is often intent on understanding.³⁸⁰ The purpose underlying the privilege is to protect the "'quality of agency decisions' by allowing government officials freedom to debate alternative approaches in private."³⁸¹ But the deliberative process privilege applies only to those documents and communications that are predecisional, meaning they are created prior to the agency reaching its final decision, and deliberative, meaning they relate to the thought process of executive officials and are not purely factual.³⁸² The privilege does not protect entire documents. Rather, the executive branch must disclose non-privileged factual information that can be reasonably segregated from privileged information in the requested documents. And like the other executive privileges,³⁸³ the deliberative process privilege is overcome by an adequate showing of need.³⁸⁴

The relatively few judicial opinions that have addressed executive privilege disputes between Congress and the executive branch suggest that a reviewing court's view of the legislative purpose and interests underlying a committee investigation plays a significant role in a court's willingness to enforce a subpoena.³⁸⁵ That purpose is articulated by the investigating committee, but its weight may be colored by various outside factors, including actions of the President. For example, in Senate Select Committee on Presidential Campaign Activities v. Nixon, a case involving a subpoena issued by a Senate committee for President Nixon's White House tapes, the D.C. Circuit held that the committee's need for the tapes was insufficient to overcome the President's claim of executive privilege.³⁸⁶ In reaching that decision, the court took a dim view of the committee's asserted oversight and legislative fact-finding purposes. The court characterized the committee's need for the tapes to conduct oversight of the Nixon Administration as "merely cumulative" given that many of the tapes had already been obtained by the House in its ongoing impeachment investigation.³⁸⁷ The committee's legislative fact-finding purpose fared no better and was similarly undercut by the fact that President Nixon had publicly released transcripts of the tapes. Those transcripts, the court reasoned, were a suitable substitute for the tapes since the "most precise evidence" is not necessary for Congress to make "legislative judgments" that "normally depend more on... political acceptability, than on precise reconstruction of past events.... "³⁸⁸

The D.C. Circuit recently took a different view of the legislative interests underlying the House investigation into the January 6, 2021, attempt to violently disrupt the congressional certification of the 2020 presidential election.³⁸⁹ In Trump v. Thompson, the court heard a claim brought by former President Donald Trump seeking to block the National Archives from disclosing his presidential records to the House Select Committee to Investigate the January 6^th Attack on the United States Capitol on the grounds that the records were protected by the presidential communications privilege.³⁹⁰ Notably, President Biden had explicitly determined that an assertion of executive privilege was, in light of the "unique and extraordinary circumstances," not warranted.³⁹¹

The D.C. Circuit's opinion in Thompson began by reaffirming that "[i]n cases concerning a claim of executive privilege, the bottom-line question has been whether a sufficient showing of need for disclosure has been made so that the claim of presidential privilege 'must yield.'"³⁹² In assessing whether the committee had shown such a need, the court noted that President Biden's decision not to assert executive privilege "substantially 'detracts from the weight of' former President Trump's contrary privilege contention."³⁹³ But rather than adopt a specific standard to govern disputes between congressional committees and a former President, the court instead held that "[u]nder any of the tests advocated by former President Trump, the profound interests in disclosure advanced by President Biden and the January 6^th Committee far exceed his generalized concerns for Executive Branch confidentiality."³⁹⁴

In both Thompson and Senate Select Committee, the D.C. Circuit characterized the circumstances of the applicable congressional investigation as unusual, possibly in an effort to limit each opinion's impact on future interbranch disputes over executive privilege.³⁹⁵ But Thompson contrasts with Senate Select in two key ways. First, in Thompson, the actions of the sitting President strengthened rather than weakened Congress's interests in disclosure.³⁹⁶ And second, in stark comparison to Senate Select Committee, the court in Thompson took a robust view of the House's interests in obtaining the requested information. The committee's investigation was "vital" and served a "uniquely weighty interest."³⁹⁷ "The very essence of the Article I power is legislating," the court reasoned, "and so there would seem to be few, if any, more imperative interests squarely within Congress's wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business."³⁹⁸ As a result, the court reasoned that under any applicable standard, even one reserved for executive privilege claims made by a sitting President, the former President's interests in confidentiality must succumb to the committee's heightened interest in access.

Former President Trump immediately asked the Supreme Court to stay the circuit court decision and block the National Archives from transferring the records to the committee. That appeal was denied, thereby effectively affirming the D.C. Circuit ruling.³⁹⁹ But in a brief order, the Supreme Court clarified that because the D.C. Circuit had "concluded that President Trump's claims would have failed even if he were the incumbent ... Any discussion of ... President Trump's status as a former President must therefore be regarded as nonbinding dicta."⁴⁰⁰ Nevertheless, the D.C. Circuit's holding that even a sitting President's interest in confidentiality would succumb to the committee's unique and substantial interest in disclosure remains unaltered and stands as a reminder of the principle that the presidential communications privilege is not absolute and can be overcome by Congress.

Statutory Limits on Congressional Access to Information

In rare circumstances, Congress has chosen to enact laws that limit its own ability to access specific types of information. One example of such self-limiting action is 26 U.S.C. §6103(f), under which the House Committee on Ways and Means, the Senate Committee on Finance, and the Joint Committee on Taxation are permitted access to individuals' tax returns.⁴⁰¹ For any other committee to receive such information, the House or Senate must pass a resolution⁴⁰² specifying the purpose for which the information is to be furnished and that the requested information cannot be reasonably obtained from any other source.⁴⁰³ The information is to be provided only when the requesting committee is sitting in closed executive session.⁴⁰⁴

Other commonly cited statutory restrictions on oversight are Title 50, Sections 3091-3093, of the U.S. Code, which relate to foreign intelligence activities. Section 3091 governs congressional oversight of "intelligence activities"⁴⁰⁵ generally. It requires that the President ensure that congressional intelligence committees are "fully and currently informed" of intelligence activities⁴⁰⁶ and "promptly" notified of illegal intelligence activities.⁴⁰⁷ Section 3092 governs oversight of intelligence activities that are not covert actions, and Section 3093 governs oversight of covert actions. Each section imposes a duty on the Director of National Intelligence and the heads of other entities involved in intelligence activities to

with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters … keep the congressional intelligence committees fully and currently informed of all intelligence activities, other than a covert action.… which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government.⁴⁰⁸

Self-imposed limits on congressional oversight powers raise the question of whether statutes that generally prohibit public disclosure of information also restrict congressional access. Federal courts have held that the executive branch and private parties may not withhold documents from Congress based on a law that restricts public disclosure, because the release of information to a congressional requestor is not considered to be a disclosure to the general public.⁴⁰⁹ In addition, many confidentiality statutes contain explicit exceptions for disclosure to Congress.⁴¹⁰

From time to time the President and other executive branch entities, as well as private parties, have argued that certain statutes of general applicability prevent the disclosure of confidential or sensitive information to congressional committees. For example, a frequently cited statute to justify nondisclosure is the Trade Secrets Act, a criminal provision that generally prohibits the disclosure of trade secrets and other confidential business information by a federal officer or employee "unless otherwise authorized by law."⁴¹¹ A review of the Trade Secrets Act's legislative history, however, provides no indication that it was ever intended to apply to Congress, its employees, or any legislative branch agency or its employees.⁴¹²

In instances in which the target of a congressional inquiry attempts to withhold information based on a general nondisclosure statute that is silent with respect to congressional disclosure, the committee may have to take additional steps to access the information. Potential solutions include negotiations with the target; accommodations in the form of accepted redactions or other means of providing the information; or a "friendly subpoena," which may provide the targeted entity or individual with the necessary legal cover to assist the committee with its inquiry. Each of these and many other prospective solutions can be employed at the committee's discretion.

Classified Material

How Are Materials Classified?

The standards for classifying and declassifying information are contained in Executive Order 13526.⁴¹³ These standards provide that the President, Vice President, agency heads, and any other officials designated by the President may classify information upon a determination that its unauthorized disclosure could reasonably be expected to damage national security.⁴¹⁴ Such information must be owned by, produced by, or under the control of the federal government and must concern one of the areas delineated by the executive order.⁴¹⁵

Information is classified at one of three levels based on the amount of danger that its unauthorized disclosure could reasonably be expected to cause to national security.⁴¹⁶ Information is classified as

• "top secret" if its unauthorized disclosure could reasonably be expected to cause "exceptionally grave damage" to national security,
• "secret" if its unauthorized disclosure could reasonably be expected to cause "serious damage" to national security, and
• "confidential" if its unauthorized disclosure could reasonably be expected to cause "damage" to national security.

Significantly, for each level, the original classifying officer must identify or describe the specific danger potentially presented by the information's disclosure.⁴¹⁷ The officer who originally classifies the information establishes a date for declassification based upon the expected duration of the information's sensitivity. If the officer cannot set an earlier declassification date, then the information must be marked for declassification after 10 or 25 years, depending on the sensitivity of the information.⁴¹⁸ The deadline for declassification can be extended if the threat to national security still exists.⁴¹⁹

Who Can Access Classified Materials?

Access to classified information is generally limited to those who

• demonstrate their eligibility to the relevant agency head (for example, through a security clearance);
• sign a nondisclosure agreement; and
• have a need to know the information, which is satisfied upon "a determination within the executive branch … that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function."⁴²⁰

The information being accessed may not be removed from the controlling agency's premises without permission.⁴²¹ Each agency is required to establish systems for controlling the distribution of classified information.⁴²²

The executive order does not contain any instructions regarding disclosures to Congress or its committees of jurisdiction. "Members of Congress, as constitutionally elected officers, do not receive security clearances as such, but are instead presumed to be trustworthy," thereby fulfilling the first requirement to access classified materials.⁴²³ Members of Congress still face the "need to know" requirement. A Member could assert that he or she fulfills this requirement based on the constitutional duties and responsibilities of his or her office. The executive branch may disagree with this interpretation and has previously stated that it retains the final authority to determine if a Member has a need to know.⁴²⁴ Congressional aides, support staff, and other legislative branch employees do not automatically have access to classified information and, therefore, must go through the necessary security clearance process prior to being permitted to review such information.⁴²⁵

The executive order's silence with respect to disclosure to Congress, combined with the absence of any other law restricting congressional access to classified material,⁴²⁶ suggests that mere classification likely cannot be used as a legal basis to withhold information from Congress. Notwithstanding classification itself, practical and political concerns with respect to controlled access, secure storage, and public disclosure may provide persuasive rationales for withholding or limiting congressional access. Committees and subcommittees have wide discretion to negotiate with a presidential Administration regarding these issues. For example, an investigating committee or subcommittee could choose to review documents at an executive branch secure facility; permit redactions of certain information; limit the ability of Members or staff to review certain material; or opt to hold nonpublic meetings, briefings, and hearings where classified information will be discussed. None of these measures is legally required, but all are within the investigating entity's discretion and may assist in facilitating the disclosure of materials sought during the investigation.

Controlled Unclassified Information

Committees conducting investigations and oversight of executive branch agencies may require access to information and documents that are "sensitive" but do not rise to the level of being classified. This general category of "controlled unclassified information" (CUI)⁴²⁷ can present access issues for congressional committees. The fact that information is CUI does not alone provide a basis for withholding it from duly authorized jurisdictional committees of Congress.⁴²⁸ However, there may be political and policy reasons why an agency's classification of information as CUI should be afforded due deference.

CUI material can take numerous forms.⁴²⁹ Some categories are statutorily authorized, while others are creations of the agency that authored or is holding the requested information. All such classifications fall under the oversight of the National Archives and Records Administration as executive agent for the CUI Program,⁴³⁰ which maintains a registry of CUI categories.⁴³¹ The executive order does not supersede statutorily created protections.⁴³²

One example of a statutorily authorized CUI category is found in the statute creating the Transportation Security Administration (TSA). The statute requires the TSA director to "prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security … if [he or she] decides that disclosing the information would—(A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the security of transportation.⁴³³

The statute also expressly states that the general authority provided to withhold information from the public "does not authorize information to be withheld from a committee of Congress authorized to have the information."⁴³⁴ Pursuant to this statute, TSA promulgated regulations defining sensitive security information (SSI)—defined generally as "information obtained or developed in the conduct of security activities"—and restrictions on its disclosure.⁴³⁵ In addition, the SSI regulations appear to insulate congressional committees and their staffs from any sanctions or penalty from the receipt and disclosure of SSI. The definition of covered persons—those subject to the SSI regulations—does not appear to include Members of Congress, committees, or congressional staff.⁴³⁶ Moreover, the regulations specifically state, as directed by the statute, that "[n]othing in this part precludes TSA or the Coast Guard from disclosing SSI to a committee of Congress authorized to have the information."⁴³⁷

Many agencies have developed their own CUI protection regimes in accordance with federal regulation⁴³⁸ that may be cited in response to congressional requests. Agencies are encouraged to enter into written agreements or arrangements when disseminating CUI outside the executive branch.⁴³⁹ However, agencies may provide CUI to Congress without a formal agreement.⁴⁴⁰

Individual Member Authority to Conduct Oversight and Investigations

Individual members of a legislative body may conduct investigatory oversight on their own initiative. However, absent the support of the body or a committee, such an investigation will generally not be supported by the same compulsory legal authorities that are available during committee investigations, including the power to issue subpoenas.⁴⁴¹

Senate rules provide substantially more effective means for individual minority party Members to engage in "self-help" to support oversight objectives than afforded their House counterparts. Senate rules emphasize the rights and prerogatives of individual Senators and, therefore, minority groups of Senators.⁴⁴² The most important of these rules are those that effectively allow unlimited debate on a bill or amendment unless a supermajority votes to invoke cloture.⁴⁴³ Senators can use their right to filibuster, or simply the threat of filibuster, to delay or prevent the Senate from reaching a vote on legislative business. Other Senate rules can also directly or indirectly aid the minority in gaining investigatory rights. For example, the right of extended debate also applies in committee and, unlike on the floor, the cloture rule may not be invoked in committee. Each Senate committee decides for itself how it will control debate, and therefore a Member may have opportunities to threaten or cause delay in committee. Also, Senate Rule XXVI prohibits the reporting of any measure or matter from a committee unless a majority of the committee is present, another point of possible tactical leverage. Even beyond the potent power to delay, Senators can promote their goals by taking advantage of other parliamentary rights and opportunities that are provided by the Senate's formal procedures and customary practices, such as are afforded by the processes dealing with floor recognition and the amending process.

5 U.S.C. §2954: The "Rule of Seven" Statute

Another potential tool for minority or small group participation in oversight is 5 U.S.C. §2954, commonly known as the "rule of seven."⁴⁴⁴ Under the statute, seven members of the House Oversight and Reform Committee or five members of the Senate Committee on Homeland Security and Governmental Affairs can request information from executive agencies on matters within their committee jurisdictions, which the agencies "shall" provide.⁴⁴⁵ While the statute confers a right of access upon this group of Members, it is not clear whether the Members—in the case of an agency refusal—can enforce their request in the courts. A recent D.C. Circuit decision has recognized that Members who invoke Section 2954 have standing to enforce their right,⁴⁴⁶ but whether they also possess the necessary cause of action for a court to entertain an enforcement lawsuit remains the subject of litigation.⁴⁴⁷

Specialized Investigations

Oversight at times occurs through specialized, temporary investigations of a specific event or development. These can be dramatic, high-profile endeavors focusing on scandals, alleged abuses of authority, suspected illegal conduct, or other unethical behavior. The stakes are high, possibly even leading to the end of individual careers of high-ranking executive officials. Congressional investigations can induce resignations, firings, and impeachment proceedings and question major policy actions of the President, as occurred in the Senate Watergate Committee investigation into the Nixon Administration in the early 1970s, the Church and Pike select committees' inquiries in the mid-1970s into intelligence agency abuses, the 1981 and 1982 House and Senate select committee inquiries into the ABSCAM scandal, the 1987 Iran-Contra investigation during the Reagan Administration, the multiple investigations of scandals and alleged misconduct during the Clinton Administration, the joint intelligence committee investigation into the September 11 attacks, the Hurricane Katrina probe in 2005 during the George W. Bush Administration, the Benghazi panel established in 2014 and again in 2015 during the Obama Administration, investigations into Russian interference in the 2016 presidential election during the Trump Administration, and a select committee inquiry by the House into the attack on the U.S. Capitol Building on January 6, 2021. On these investigations and others, interest in Congress, the executive, and the public is frequently intense and impassioned.

Although the circumstances that give rise to one or another committee investigation can vary significantly, the investigations themselves tend to share some common attributes, including these five:

• 1. Investigative hearings may be televised or webcast and often result in extensive news media coverage.
• 2. Such investigations may be undertaken by different organizational arrangements. These include temporary select committees, standing committees and their subcommittees, specially created subcommittees, or specially commissioned task forces within existing standing committees.
• 3. Specially created investigative committees usually have a short life span (e.g., six months, one year, or at the longest until the end of a Congress, at which point the panel would have to be reauthorized for the inquiry to continue).
• 4. The investigative panel often has to employ additional and special staff—including investigators, attorneys, auditors, and researchers—because of the added workload and need for specialized expertise in conducting such investigations and in the subject matter involved. Such staff can be hired under contract from the private sector, transferred from existing congressional offices or committees, transferred from the congressional support agencies, or loaned ("detailed") by executive agencies, including the FBI. The staff would require appropriate security clearances if the inquiry looked into matters of national security.
• 5. Such special panels have often been vested with investigative authorities not ordinarily available to standing committees. Staff deposition authority is the most commonly provided authority, but given the particular circumstances, special panels have also been vested with the authority to obtain tax information, seek international assistance in information-gathering efforts abroad, and participate in judicial proceedings related to the investigation (for instance, to enforce a committee-issued subpoena). The specific authorities granted to some of the most prominent investigations undertaken in recent decades are displayed in Table 1.

Selected Oversight Techniques

Some oversight techniques—such as conducting hearings with agency officials, receiving reports on agency activities and performance, and scrutinizing budget requests—are relatively straightforward. There are several techniques for which explanation or elaboration may prove helpful for a better understanding of their utility.

Identifying Relevant Committee Jurisdiction

A basic step in conducting oversight involves identifying the committee(s) with jurisdiction over the policy matter or programs of interest. The committee jurisdictional statements in House Rule X and Senate Rule XXV specify the subjects that fall within each committee's jurisdiction. In general, the rules do not address specific departments, agencies, programs, or laws but are stated in broad subject terms. Therefore, multiple committees may exercise some jurisdiction—especially in regard to oversight—over the same departments and agencies or over different elements of the same agency activities. While the House and Senate Parliamentarians are the sole definitive arbiters of committee jurisdiction, CRS can also assist with the identification of the relevant committee(s) of jurisdiction for proposed oversight activities.⁴⁴⁸

Orientation and Periodic Review Hearings with Agencies

Oversight hearings (or even "pre-hearings") may be held for the purposes of briefing Members and staff on the organization, operations, and programs of an agency and determining how an agency intends to implement any newly enacted legislation. Hearings can also be used as a way to obtain information on the administration, effectiveness, and economy of agency operations and programs.

Agency officials can be noticeably influenced by the knowledge and expectation that they will be called before a congressional committee regularly to account for the activities of their agencies. Such hearings benefit the committee by, for example:

• helping committee members keep up to date on important administrative developments;
• serving as a forum for exchanging and communicating views on pertinent problems and other relevant matters;
• providing background information that could assist members in making sound legislative and fiscal judgments;
• identifying program areas within each committee's jurisdiction that may be vulnerable to waste, fraud, abuse, or mismanagement; and
• determining whether new laws are needed or whether changes in the administration of existing laws will be sufficient to resolve problems.

The ability of committee members during oversight hearings to focus on meaningful issues and ask penetrating questions will typically be enhanced if staff have accumulated, organized, and evaluated relevant data, information, and analyses about administrative performance.

A prime objective of the "continuous watchfulness" mandate (Section 136) of the Legislative Reorganization Act of 1946 is to encourage committees to take an active and ongoing role in administrative review and not wait for public revelations of agency and program inadequacies before conducting oversight. As Section 136 states in part: "each standing committee of the Senate and House of Representatives shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee."

Committee personnel may be assigned to maintain active liaison with appropriate agencies and record their pertinent findings routinely. Information compiled in this fashion will typically be useful for both routine oversight hearings and oversight hearings that may be called unexpectedly, perhaps following a public outcry on a particular issue in which the opportunity to conduct an extensive background study is limited.

It can be important for a committee to direct specific questions to agency witnesses in advance of a hearing so that witnesses will be on notice regarding the kinds of questions the committee wants answered. This allows witnesses to be more responsive to the committee's questions and may limit their ability to provide rambling or evasive statements.

Casework

Casework is a congressional activity that typically occurs in Members' personal offices and includes the response or services provided to constituents who request assistance on a wide variety of matters. These could include problems with various federal agencies and departments that could signal a need for further oversight. Casework inquiries can be simple and include requests for assistance in applying for Social Security, veterans', educational, or other benefits. More complex inquiries might involve tracking misdirected benefits payments or efforts to obtain, or seek relief from, a federal administrative decision.⁴⁴⁹

Casework inquiries and the efforts of congressional constituent services staff to respond can provide important insights into executive agency activities. Together, constituent inquiries and agency responses may afford Members an early warning about whether an agency or program is functioning as Congress intended and which programs or policies might warrant additional institutional oversight or further legislative consideration.⁴⁵⁰

Performance Audits by Inspectors General and GAO

Performance auditing of executive departments is among the most frequently undertaken techniques of legislative oversight. A performance audit is intended to help Congress (and other oversight entities) hold executive officers accountable for their use of public funds with a primary aim to facilitate improvement of various government programs and operations.⁴⁵¹ According to GAO, performance audits aim to accomplish four key objectives:

• 1. Program effectiveness and results. Determine whether a program or activity is achieving its legislative, regulatory, or organizational goals and objectives, as well as whether resources are being used efficiently, effectively, and economically to achieve program results.
• 2. Internal control. Determine whether an internal control system for a program or activity provides reasonable assurance of achieving efficient and effective operations, reliability of reporting, and compliance with applicable laws and regulations.
• 3. Compliance. Determine whether a program or activity complies with criteria established by laws, regulations, contracts, grant agreements, or other requirements.
• 4. Prospective analysis. Identify projected trends and impact of a program or activity and possible policy alternatives to address them.⁴⁵²

Performance audits may be undertaken by independent auditors (e.g., GAO or inspectors general) or internal auditors (e.g., agency audit teams or agency-hired consultants). Internal auditors often work under the direction of their affiliated agencies, and their reports may be designed to meet the needs of executive officials. Regardless, internal audit reports might be useful in conducting legislative oversight.⁴⁵³

GAO and other audit entities may consider several questions when assessing government programs and operations, such as the following:

• How successful is the program in accomplishing the intended results? Could program objectives be achieved at less cost?
• Has agency management clearly defined and promulgated the objectives and goals of the program or activity?
• Have performance standards been developed?
• Are program objectives sufficiently clear to permit agency management to accomplish effectively the desired program results? Are the objectives of the component parts of the program consistent with overall program objectives?
• Are program costs reasonably commensurate with the benefits achieved?
• Have alternative programs or approaches been examined, or should they be examined to determine whether objectives can be achieved more economically?
• Were all studies, such as cost-benefit studies, appropriate for analyzing costs and benefits of alternative approaches?
• Is the program producing benefits or detriments that were not contemplated by Congress when it authorized the program?
• Is the information furnished to Congress by the agency adequate and sufficiently accurate to permit Congress to monitor program achievements effectively?
• Does top management have the essential and reliable information necessary for exercising supervision and control and for ascertaining directions or trends?
• Does management have internal review or audit facilities adequate for monitoring program operations, identifying program and management problems and weaknesses, and insuring fiscal integrity?

Monitoring the Federal Register

The Federal Register, available at https://www.federalregister.gov/, is published Monday through Friday (except official holidays) by the Office of the Federal Register in the National Archives and Records Administration. It provides a uniform system for making available to the public regulations and legal notices issued by federal agencies and the President. These include presidential proclamations and executive orders, federal agency documents having general applicability and legal effect, documents required to be published by acts of Congress, and other federal agency documents of public interest. Final regulations are codified by subject in the Code of Federal Regulations.

Documents are typically on file for public inspection in the Office of the Federal Register for at least one day before they are published unless the issuing agency requests earlier filing. The list of documents on file for public inspection can be accessed at https://www.federalregister.gov/public-inspection. Regular scrutiny of the Federal Register by committees and staff may help them to identify proposed rules and regulations in their areas of jurisdiction that merit congressional review as to need and likely effect.

Monitoring the Unified Agenda

The Unified Agenda of Federal Regulatory and Deregulatory Actions is a government-wide publication of rulemaking actions that agencies expect to take in the coming six to 12 months. The Unified Agenda, which is generally published twice each year, lists upcoming regulatory actions (i.e., new proposed and final regulations) and deregulatory actions (i.e., reductions in or elimination of current regulations). The Unified Agenda provides Congress transparency into federal agencies' upcoming rulemaking activities—which can be particularly useful given that most regulatory activities are not made public until they are published in the Federal Register. The Unified Agenda is available on the website www.Reginfo.gov,⁴⁵⁴ which is published by the General Services Administration's Regulatory Information Service Center. Separate from the Unified Agenda, Reginfo.gov also has information about Office of Management and Budget (OMB) review of regulations under Executive Order 12866 and information collection requests under the Paperwork Reduction Act.⁴⁵⁵

Special Studies and Investigations by Staff, Support Agencies, and Others

Staff investigations. The staffs of committees and individual members play a vital role in the legislative process. Committee staffs, through field investigations or on-site visits, for example, can help a committee develop its own independent evaluation of the effectiveness of laws.

Support agencies. The legislative support agencies can directly or indirectly assist committees and members in conducting investigations and reviewing agency performance.⁴⁵⁶ GAO is the agency most involved in investigations, audits, and program evaluations. It has a large, professional investigative staff and produces numerous reports useful in oversight.

Outside contractors, consultants, and detailees. The Legislative Reorganization Act of 1970 authorized House and Senate committees to contract with individual consultants or organizations to assist them in their work. Committees may also use federal employees detailed from executive or legislative branch agencies.⁴⁵⁷ The use of contractors, consultants, and detailees is subject to limitations and approvals established in House and Senate rules, guidelines established by the Committee on House Administration or the Senate Committee on Rules and Administration, and rules of individual committees.⁴⁵⁸

Investigative commissions. Congress has periodically established independent commissions to conduct studies or to investigate an event, activity, or government function. Commissions are typically made up of outside experts and tasked with issuing reports to Congress (or to Congress and the President) that contain the commission's findings and recommendations.⁴⁵⁹

Communicating with the Media

Public awareness of a problem can contribute to oversight. Public and media attention to an issue may be considered a separate form of oversight or a complement to other oversight techniques.

Official resources are available to assist Members in interacting with the media and scheduling press conferences and with the broadcasting of official proceedings. Additionally, nearly all Members maintain one or more social media accounts and use their institutional websites to help communicate with constituents and publicize issues.⁴⁶⁰

Press Gallery Offices

The staff of the House and Senate press galleries provide services for journalists and Members of Congress. The press galleries can assist Members or staff with the distribution of press releases, facilitate Member communications with journalists, and help arrange location reservations or other logistics for press conferences or interviews.⁴⁶¹

Within each chamber, separate gallery offices exist for the daily press, periodical press, and radio/TV press. A single office, serving both chambers, exists for the press photographers' gallery. The websites for each gallery are provided in Table 2.

Resolutions of Inquiry

The House of Representatives can call upon the executive branch for factual information through resolutions of inquiry (House Rule XIII, clause 7).⁴⁶² This is a simple resolution considered in and approved by only the House. Resolutions of inquiry are addressed to either the President or heads of Cabinet-level agencies to supply specific factual information to the chamber. The resolutions usually "request" the President or "direct" administrative heads to supply such information. In calling upon the President for information, especially about foreign affairs, the House often adds the qualifying language—"if not incompatible with the public interest." Resolutions of inquiry do not impose a legally enforceable duty to respond on executive branch officials.⁴⁶³

Such resolutions are one way for Congress to ask for facts, documents, or specific information. These devices are not to request an opinion or require an investigation (see box below). Resolutions of inquiry can trigger other congressional methods of obtaining information, such as through supplemental hearings or the regular legislative process.

If all the committees of referral do not report a resolution of inquiry within 14 legislative days after its introduction, any Representative can move to discharge the panels and bring the resolution to the floor for consideration. Action by the committees to report the resolution within the 14 days, however, effectively sidetracks House floor action on the resolution. For this reason, House committees virtually always mark up and report resolutions of inquiry referred to them, even when they do not support the goals of the legislation. By reporting the resolution within the specified 14-day window, a committee of referral retains control over the measure and prevents supporters of the resolution from going to the floor and making the privileged motion to discharge.

Limitations and Riders on Appropriations

Congress generally uses a two-step legislative procedure: authorization of programs in bills reported by legislative committees followed by the funding of those programs in bills reported by the Committees on Appropriations. Congressional rules generally encourage these two steps to be distinct and sequential. Authorizations should not be in general appropriation bills or appropriations in authorization measures. However, there are various exceptions to the general principle that Congress should not make policy through the appropriations process. One exception is the practice of permitting "limitations" in an appropriations bill. So-called riders (language extraneous to the subject of the bill) are also sometimes added to control agency actions.

Limitations

Although House rules forbid in any general appropriations bill a provision "changing existing law," certain "limitations" may be admitted. "Just as the House under its rules may decline to appropriate for a purpose authorized by law, so it may by limitation prohibit the use of the money for part of the purpose while appropriating for the remainder of it."⁴⁶⁴ Limitations can be an effective device in oversight by strengthening Congress's ability to exercise control over federal spending and to reduce expenditures that Congress believes to be unnecessary or undesirable. Under House Rule XXI, no provision changing existing law can be reported in any general appropriation bill "except germane provisions that retrench expenditures by the reduction of amounts of money covered by the bill" (the so-called Holman rule, rarely used in modern practice).

Rule XXI was amended in 1983 in an effort to restrict the number of limitations on appropriations bills. The rule was changed again in 1995 by granting the majority leader a central role in determining consideration of limitation amendments. The procedures for limitation in the House are set forth in the House Manual, Sections 1044(b) and 1053-1062.

Riders

Unlike limitations, legislative "riders" are extraneous to the subject matter of the bill to which they are added. Riders appear in both authorization bills and appropriations bills. In the latter case, such provisions would be subject to a point of order in the House on the grounds that they are attempts to place legislation in an appropriations bill, although in almost every case, the procedure used to consider the legislation may restrict Members' ability to lodge a point of order. In the Senate, Rule XVI prohibits the addition to general appropriations bills of amendments that are legislative or non-germane. Both chambers have procedures to waive these prohibitions.

Legislative Veto and Advance Notice

Many acts of Congress have delegated authority to the executive branch on the condition that proposed executive actions be submitted to Congress for review and possible disapproval before they can be put into effect. This way of ensuring continuing oversight of policy areas follows two paths: the legislative veto and advance notification.

Legislative Veto

Beginning in 1932,⁴⁶⁵ Congress delegated authority to the executive branch with the condition that proposed executive actions would be first submitted to Congress and subjected to disapproval by a committee, a single house, or both houses. Over the years, other types of legislative veto were added, allowing Congress to control executive branch actions without having to enact a law. In 1983, the Supreme Court, in INS v. Chadha, ruled that the legislative veto was unconstitutional on the grounds that all exercises of legislative power that affect the rights, duties, and relations of persons outside the legislative branch must satisfy the constitutional requirements of bicameralism and presentment of a bill or resolution to the President for his signature or veto.⁴⁶⁶ Despite this ruling, Congress has continued to enact proscribed legislative vetoes, and it has also relied on informal arrangements to provide comparable controls.⁴⁶⁷

Statutory Legislative Vetoes

Congress responded to Chadha by converting some of the one-house and two-house legislative vetoes to joint resolutions of approval or disapproval, thus satisfying the requirements of bicameralism and presentment. However, Congress continues to rely on legislative vetoes. Since the Chadha decision, hundreds of legislative vetoes have been enacted into public law, usually in appropriations acts. These legislative vetoes are exercised by the Appropriations Committees. Typically, funds may not be used or an executive action may not begin until the Appropriations Committees have approved—or, at least, not disapproved—the planned action, often within a specified time limit.

Informal Legislative Vetoes

Unlike a formal legislative veto, where the arrangement is spelled out in the law, the informal legislative veto occurs where an executive official pledges not to proceed with an activity until Congress or certain committees agree to it. An example of this appeared during the 101^st Congress. In the "bipartisan accord" on funding the Contras in Nicaragua, the Administration pledged that no funds would be obligated beyond November 30, 1989, unless affirmed by letter from the relevant authorization and appropriations committees and the bipartisan leadership of Congress.⁴⁶⁸

Advance Notification or Report-and-Wait

Statutory provisions may stipulate that before a particular activity can be undertaken by the executive branch or funds obligated, Congress must first be advised or informed, ordinarily through a full written statement, of what is being proposed. These statutory provisions usually provide for a period of time during which the executive branch must defer action, giving Congress an opportunity to pass legislation prohibiting the pending action or using political pressure to cause executive officials to retract or modify the proposed action. The Supreme Court has upheld this type of "report-and-wait" provision, noting: "The value of the reservation of the power to examine proposed rules, laws and regulations before they become effective is well understood by Congress. It is frequently, as here, employed to make sure that the action under the delegation squares with the Congressional purpose."⁴⁶⁹

Independent Counsel

The statutory provisions for the appointment of an independent counsel (formerly called "special prosecutor") were originally enacted as part of the Ethics in Government Act of 1978⁴⁷⁰ and were reauthorized on several occasions before expiring in 1999.

The mechanisms of the independent counsel law were triggered by the receipt of information by the Attorney General that alleged a violation of any federal criminal law (other than certain misdemeanors or "infractions") by a person covered by the act. The law automatically covered certain high-level federal officials—including the President, Vice President, and heads of departments. In addition, the Attorney General had discretion to seek an independent counsel for any person for whom there may exist a personal, financial, or political conflict of interest for DOJ personnel to investigate, and the Attorney General could seek an independent counsel for any Member of Congress when the Attorney General deemed it to be in the "public interest." ⁴⁷¹

There was no specific term of appointment for independent counsels. They could serve for as long as it took to complete their duties concerning the specific matter within their defined and limited jurisdictions. Once a matter was completed, the independent counsel filed a final report. The Supreme Court upheld the procedures for appointing and removing the independent counsel in Morrison v. Olson.⁴⁷²

The conduct of an independent counsel was subject to congressional oversight, and an independent counsel was required to cooperate with that oversight.⁴⁷³ In addition, the independent counsel was required to report to the House of Representatives any "substantial and credible" information that may constitute grounds for any impeachment.⁴⁷⁴

The independent counsel statute expired in 1992, partly because of criticism directed at Lawrence Walsh's investigation of Iran-Contra. The statute was reauthorized in 1994, but objections to the investigations conducted by Kenneth Starr into Whitewater, Monica Lewinsky, and other matters put Congress under pressure to let the statute lapse on June 30, 1999.

Unless Congress in the future reauthorizes the independent counsel, the only available option for an independent counsel is to have the Attorney General invoke existing authority to appoint a special prosecutor to investigate a particular matter. Current DOJ regulations provide for the appointment of outside, temporary special counsels to conduct investigations and possible prosecutions of certain sensitive matters or matters that may raise a conflict for the DOJ.⁴⁷⁵ Such special counsels would have substantially less independence than the statutory independent counsel, including removal for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Department policies."

These special counsel rules have been invoked in at least two recent and high-profile cases. First, in May 2017, Deputy Attorney General Rod Rosenstein appointed former FBI director Robert Mueller as special counsel to investigate the Russian government's efforts to "influence the 2016 election and related matters."⁴⁷⁶ Then, in October 2020, Attorney General Bill Barr appointed John Durham, then-U.S. Attorney for the District of Connecticut, to investigate "intelligence and law-enforcement activities surrounding the 2016 presidential election."⁴⁷⁷

Reporting, Testimony, Notice, and Consultation, Requirements

Congressional oversight of the executive branch is dependent to a large degree upon information supplied by agencies. Congress has developed a number of tools—including reporting and notice requirements, statutory testimony requirements, and consultation requirements—to help ensure Congress and the public are aware of executive branch activities.⁴⁷⁸ The bulk of this information arrives on Capitol Hill in the thousands of written reports that are prepared by agencies and received by Congress on an annual basis.⁴⁷⁹

Concerns about unnecessary, duplicative, and wasteful reports have prompted efforts to reexamine these requirements.⁴⁸⁰ One such initiative, in part stimulated by recommendations from the Vice President's National Performance Review and from the GAO, resulted in the Federal Reports Elimination and Sunset Act of 1995. In 2010, Congress established a statutory process that allows executive agencies and the President to more systematically propose the elimination or modification of reporting requirements.⁴⁸¹

Reporting Requirements

Reporting requirements affect executive and administrative agencies and officers, including the President, independent boards and commissions, and federally chartered corporations (as well as the judiciary). These statutory provisions vary in terms of the specificity, detail, and type of information that Congress demands.⁴⁸² Reports may be required at periodic intervals, such as semiannually or at the end of a fiscal year, or submitted only if or when a specific event, activity, or set of conditions exists.⁴⁸³ The reports may also call upon one or more agencies, commissions, or officers to

• study and provide recommendations about a particular problem or concern;
• alert Congress or particular committees and subcommittees about a proposed or planned activity or operation;
• provide information about specific ongoing or just-completed operations, projects, or programs; or
• summarize an agency's activities for the year or the prior six months.

Testimony Requirements

Congress has established statutory requirements for certain executive branch officials to appear and provide testimony before identified committees.⁴⁸⁴ At least two such provisions date to 1976,⁴⁸⁵ and many testimony requirements have been enacted since 2007, particularly in legislation responding to the financial crisis.⁴⁸⁶ Recently, the Coronavirus Aid, Relief, and Economic Security (CARES) Act included requirements that the Secretary of the Treasury and the chair of the Federal Reserve Board testify on a quarterly basis before the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services.⁴⁸⁷

Notice and Prior Consultation

Congress sometimes includes provisions in law or language in committee reports that requires or directs agencies to consult with Congress or other stakeholders before taking certain actions. These requirements can inform Congress and the public about agencies' plans and activities. In addition, the provisions may create opportunities for Congress and nonfederal stakeholders to influence an agency's decisionmaking in areas such as reallocation of budgetary resources through reprogramming,⁴⁸⁸ notice-and-comment rulemaking,⁴⁸⁹ and establishment of goals.⁴⁹⁰

Statutory Oversight Enablers

Congress has passed a number of laws designed to provide additional information to Congress (and the public) on the operations of the executive branch. These laws also add controls that may reduce the demands on Congress's time by shifting responsibility for some routine monitoring to professionals in the executive branch.

Many such laws include reporting requirements or other provisions that involve public participation. Some illustrative examples are included below, along with citations to when they were originally enacted.⁴⁹¹

Direct Expansions of Congress's Oversight Authority

A number of laws directly augment and safeguard Congress's authority, mandate, and resources to conduct oversight and legislative investigations. Pertinent statutes affect congressional proceedings, such as obstruction (18 U.S.C. §1505), false statements by witnesses (18 U.S.C. §1001(c)(2)), and contempt procedures (2 U.S.C. §§192, 194). Some other relevant laws are discussed below.

• 1912 anti-gag legislation and whistleblower protection laws for federal employees:
• The Lloyd-La Follette Act of 1912 (5 U.S.C. §7211) countered executive orders issued by Presidents Theodore Roosevelt and William Howard Taft that prohibited civil service employees from communicating directly with Congress. It also guaranteed that "the right of any persons employed in the civil service … to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with."
• The Whistleblower Protection Act of 1989 (P.L. 101-12, 5 U.S.C. ch. 12) makes it a prohibited personnel practice for an agency employee to take any action against an employee that is in retaliation for disclosure of information that the employee believes relates to violation of law, rule, or regulation or evidences gross mismanagement, waste, fraud, or abuse of authority (5 U.S.C. §2302(b)(8)). The prohibition is explicitly intended to protect disclosures to Congress: "This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress."
• The Intelligence Community Whistleblower Protection Act (P.L. 105-272) establishes special procedures for personnel in the Intelligence Community to transmit urgent concerns involving classified information to inspectors general and the House and Senate Select Committees on Intelligence.
• Section 713 of Division E of the Consolidated Appropriations Act, 2021 (P.L. 116-260), prohibits the payment of the salary of any officer or employee of the federal government who prohibits, prevents, attempts, or threatens to prohibit or prevent any other federal officer or employee from having direct oral or written communication or contact with any Member, committee, or subcommittee. This prohibition applies irrespective of whether such communication was initiated by such officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee. Further, any punishment or threat of punishment because of any contact or communication by an officer or employee with a Member, committee, or subcommittee is prohibited under the provisions of this act.
• Section 743 of Division E of the Consolidated Appropriations Act, 2021 (P.L. 116-260), prohibits the expenditure of any appropriated funds for use in implementing or enforcing agreements in Standard Forms 312 and 4414 of the government or any other nondisclosure policy, form, or agreement if such policy, form, or agreement does not contain a provision that states that the restrictions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligation, rights, and liabilities created by
• Executive Order 12958;⁴⁹² the Lloyd-La Follette Act (5 U.S.C. §7211); the Military Whistleblower Act (10 U.S.C. §1034);
• the Whistleblower Protection Act (5 U.S.C. §2303(b)(8));
• the Intelligence Identities Protection Act (50 U.S.C. §§421 et seq.);
• and U.S. Code Title 18, Sections 641, 793, 794, 798, and 952 and Title 50, Section 783(b).
• Budget and Accounting Act of 1921 (P.L. 67-13)
• Established GAO (which was then named the General Accounting Office) as "independent of the executive departments and under the control and direction of the Comptroller General of the United States."
• Granted authority to the Comptroller General to "investigate, at the seat of government or elsewhere, all matters relating to the receipt, disbursement, and application of public funds."
• Legislative Reorganization Act of 1946 (P.L. 79-601):
• Mandated House and Senate committees to exercise "continuous watchfulness" of the administration of laws and programs under their jurisdiction.
• Authorized, for the first time in history, permanent professional and clerical staff for committees.
• Authorized and directed the Comptroller General to make administrative management analyses of each executive branch agency.
• Established the Legislative Reference Service, renamed the Congressional Research Service by the 1970 Legislative Reorganization Act (see below), as a separate department in the Library of Congress. It called upon the service "to advise and assist any committee of either House or joint committee in the analysis, appraisal, and evaluation of any legislative proposal … and otherwise to assist in furnishing a basis for the proper determination of measures before the committee."
• Intergovernmental Cooperation Act of 1968 (P.L. 90-577):
• Required that House and Senate committees having jurisdiction over grants-in-aid conduct studies of the programs under which grants-in-aid are made.
• Provided that studies of these programs are to determine whether (1) their purposes have been met, (2) their objectives could be carried on without further assistance, (3) they are adequate to meet needs, and (4) any changes in programs or procedures should be made.
• Legislative Reorganization Act of 1970 (P.L. 91-510):
• Revised and rephrased in more explicit language the oversight function of House and Senate standing committees: "each standing committee shall review and study, on a continuing basis, the application, administration, and execution of those laws or parts of laws, the subject matter of which is within the jurisdiction of that committee."
• Required most House and Senate committees to issue biennial oversight reports.
• Strengthened the program evaluation responsibilities and other authorities and duties of the GAO.
• Re-designated the Legislative Reference Service as the Congressional Research Service, strengthening its policy analysis role and expanding its other responsibilities to Congress.
• Recommended that House and Senate committees ascertain whether programs within their jurisdictions could be appropriated for annually.
• Required most House and Senate committees to include in their committee reports on legislation five-year cost estimates for carrying out the proposed programs.
• Increased by two the number of permanent staff for each standing committee, including provisions for minority party hiring, and provided for hiring of consultants by standing committees.
• Federal Advisory Committee Act of 1972 (P.L. 92-463):
• Directed House and Senate committees to make continuing reviews of the activities of each advisory committee under their jurisdictions.
• The studies are to determine whether (1) such committee should be abolished or merged with any other advisory committee, (2) its responsibility should be revised, and (3) it performs a necessary function not already being performed.⁴⁹³
• Congressional Budget and Impoundment Control Act of 1974 (P.L. 93-344):
• Expanded House and Senate committee authority for oversight. Permitted committees to appraise and evaluate programs themselves "or by contract, or (to) require a Government agency to do so and furnish a report thereon to the Congress."
• Directed the Comptroller General to "review and evaluate the results of Government programs and activities" on his or her own initiative or at the request of either House or any standing or joint committee and to assist committees in analyzing and assessing program reviews or evaluation studies. Authorized GAO to establish an Office of Program Review and Evaluation to carry out these responsibilities.
• Strengthened GAO's role in acquiring fiscal, budgetary, and program-related information.
• Established House and Senate Budget Committees and the Congressional Budget Office (CBO). The CBO director is authorized to "secure information, data, estimates, and statistics directly from the various departments, agencies, and establishments" of the government.
• Required any House or Senate legislative committee report on a public bill or resolution to include an analysis (prepared by CBO) providing an estimate and comparison of costs that would be incurred in carrying out the bill during the next and following four fiscal years in which it would be effective.
• Public Debt Limit Increase of 2010 (P.L. 111-139):
• Required the Comptroller General to conduct routine investigations to identify programs, agencies, offices, and initiatives with duplicative goals and activities within departments and government-wide and report annually to Congress on the findings, including the cost of such duplication.
• GAO Access and Oversight Act of 2017 (P.L. 115-3):
• Authorized GAO to obtain federal agency records, including through civil actions, required to discharge GAO's audit, evaluation, and investigative duties.
• Provided that no provision of the Social Security Act shall be construed to limit, amend, or supersede GAO's authority to obtain information or inspect records about an agency's duties, powers, activities, organization, or financial transactions.
• Required agency statements on actions taken or planned in response to GAO recommendations to be submitted to the congressional committees with jurisdiction over the pertinent agency program or activity.

Indirect Expansions of Congress's Oversight Capabilities

Separate from expanding Congress's own authority and resources directly, Congress has strengthened its oversight capabilities indirectly by establishing ongoing processes and institutions through which other actors may track developments and identify issues that merit Congress's attention. Some scholars have characterized this as "fire alarm" oversight.⁴⁹⁴ From this perspective, it is possible that

the bureaucracy might not pursue Congress's goals. But citizens and interest groups can be counted on to sound an alarm in most cases in which the bureaucracy has arguably violated Congress's goals. Then Congress can intervene to rectify the violation. Congress has not necessarily relinquished legislative responsibility to anyone else. It has just found a more efficient way to legislate.⁴⁹⁵

Congress has done this, for instance, by establishing study commissions to review and evaluate programs, policies, and operations of the government. In addition, Congress has created various mechanisms, structures, and procedures within the executive branch that improve the ability of the public and interested stakeholders to monitor activities of the President and executive agencies and, at the same time, provide additional information and oversight-related analyses to Congress. In some cases, Congress has created oversight processes within the executive branch in which actors in agencies are statutorily required to exercise oversight over certain activities and make information known to Congress and the public. These statutory provisions include, but are not limited to, the following:⁴⁹⁶

• Chief Financial Officers (CFO) Act of 1990, as Amended (P.L. 101-576, 31 U.S.C. §§901 et seq.):
• Created two new posts within OMB along with a new position of chief financial officer in each of the larger executive agencies, including all Cabinet departments.
• Provided for improvements in agency systems of accounting, financial management, and internal controls to ensure reliable financial information and to deter fraud as well as the waste and abuse of government resources.
• Required production of complete, reliable, timely, and consistent financial information for use by both the executive branch and Congress in the financing, management, and evaluation of federal programs.
• Required most executive branch entities to submit audited financial statements annually.
• Government Performance and Results Act (GPRA) (P.L. 103-62), as Amended by the GPRA Modernization Act (GPRAMA) (P.L. 111-352, 31 U.S.C. §1101 note)
• Requires agencies to create strategic plans that specify general goals and objectives for agencies based on the basic missions and underlying statutory or other authority of an agency. These plans, initially required in 1997, are to be developed in consultation with relevant congressional offices and with information from "stakeholders" and then submitted to Congress. Agencies may update plans if circumstances change.
• Directs agencies, based on their strategic plans, to set annual performance goals and to measure the results of their programs in achieving these goals. The annual plans outlining these goals are also available to Congress.
• Requires each agency to issue yearly follow-up reports assessing the implementation of its annual plan. These are required to be submitted after the end of the fiscal year.
• Requires the executive branch to develop a federal government performance plan and priority goals under the direction of OMB. These are to include "outcome-oriented goals covering a limited number of crosscutting policy areas; and goals for management improvements needed across the Federal Government."
• Congressional Review Act (P.L. 104-121)
• Established a special set of parliamentary procedures by which Congress can consider legislation to disapprove federal rules and regulations.⁴⁹⁷ Congress has legislative authority over federal regulations, which agencies issue pursuant to statutory delegations of authority. The act provided tools allowing Congress to expedite that legislative authority.
• Required any agency promulgating a covered rule to report to each house of Congress and the Comptroller General containing specific information about the rule before it can go into effect.
• Established that rules designated by OMB as "major" may normally not go into effect until at least 60 days after submission, while non-major rules may become effective "as otherwise allowed in law," usually 30 days after publication in the Federal Register.
• Subjected all covered rules to fast-track disapproval by passage of a joint resolution, even if they have already gone into effect, for a period of at least 60 days. Upon enactment of such a joint resolution, no new rule that is "substantially the same" as the disapproved rule may be issued unless it is specifically authorized by a law enacted subsequent to the disapproval of the original rule.
• Established that "[n]o determination, finding, action, or omission" under the act shall be subject to judicial review.
• Paperwork Reduction Act of 1995 (P.L. 104-13, 44 U.S.C. ch. 35)
• Authorized OMB's Office of Information and Regulatory Affairs (OIRA) to develop and administer uniform information policies to ensure the availability and accuracy of agency data collection and provided for congressional oversight including the requirement for Senate confirmation of OIRA's administrator.
• Federal Managers' Financial Integrity Act (FMFIA) of 1982 (P.L. 97-255)
• Strengthened internal management and financial controls, accounting systems, and financial reports. The law required the internal accounting systems to be consistent with standards prescribed by the Comptroller General, including a requirement that all assets be safeguarded against waste, fraud, loss, unauthorized use, and misappropriation.⁴⁹⁸
• Provided for ongoing evaluations of the internal control and accounting systems that protect federal programs against waste, fraud, abuse, and mismanagement.
• Mandated that the head of each agency report annually to the President and Congress on the condition of these systems and on agency actions to correct any material weakness that the reports identify.
• FMFIA is also related to the CFO Act (P.L. 101-576), which calls upon the director of OMB to submit a financial management status report to appropriate congressional committees.⁴⁹⁹ Part of this report is to be a summary of reports on internal accounting and administrative control systems as required by FMFIA.
• Clinger-Cohen Act of 1996 (P.L. 104-106, 40 U.S.C. §§11101 et seq.)
• Changed how agencies invest in information technology by giving more responsibility to individual agencies and revoking the primary role that the General Services Administration (GSA) had played previously.
• Established the position of chief information officer in federal agencies to provide relevant advice to agency heads.
• Federal Advisory Committee Act (P.L. 92-463, 5 U.S.C. Appendix)⁵⁰⁰
• Established the first requirements for the management and oversight of federal advisory committees to ensure impartial and relevant expertise. As required by the act, GSA administers and provides management guidelines for advisory committees.
• GSA maintains a specialized, federal government, interagency, information-sharing database that collects data on federal advisory committee activities government-wide and is publicly available on the web at http://www.facadatabase.gov.
• Federal Funding Accountability and Transparency Act (FFATA), as Amended by the Digital Accountability and Transparency (DATA) Act (P.L. 109-282, 31 U.S.C. §6101 note)
• Under FFATA, OMB established USAspending.gov a searchable, free, and public website that enables anyone to go online to find information about most federal grants, loans, and contracts.⁵⁰¹
• Subsequently, Congress significantly amended FFATA with passage of the DATA Act (P.L. 113-101). The amended version of FFATA directed the Secretary of the Treasury and director of OMB to establish government-wide financial data standards and required online reporting of extensive data on budget execution.

Statutory Offices of Inspector General

Congress created statutory inspectors general (IGs) to combat waste, fraud, and abuse within designated federal departments and agencies.⁵⁰² To execute their missions, offices of inspector general (OIGs) conduct and publish audits and investigations, among other duties. By law, OIGs are nonpartisan, independent offices, and 75 statutory OIGs currently exist in more than 70 federal entities, including departments, agencies, boards, commissions, and government-sponsored enterprises in both the legislative and executive branches.⁵⁰³ While IGs are organized within agencies, they have explicit duties to report directly to Congress on their work and frequently conduct audits and investigations requested by Members or committees or required by statute.

Inspector General Act of 1978

The Inspector General Act of 1978, as amended (IG Act)⁵⁰⁴ governs the majority of IGs. The IG Act originally created OIGs in 12 "federal establishments" and provided the blueprint for IG authorities and responsibilities.⁵⁰⁵ The IG Act has been substantially amended three times since its enactment, as described below.

• 1. The Inspector General Act Amendments of 1988 (P.L. 100-504) expanded the number of OIGs in federal establishments and created a new set of IGs in "designated federal entities" (DFEs). The act also established separate appropriations accounts for IGs in federal establishments and added to the annual reporting obligations of all IGs and agency heads.
• 2. The Inspector General Reform Act of 2008 (P.L. 110-409) established a new Council of the Inspectors General for Integrity and Efficiency (CIGIE); established salary, bonus, and award provisions; added budget protections for OIGs; required OIG websites to include all completed audits and reports; and amended IG removal requirements and reporting obligations.
• 3. The Inspector General Empowerment Act of 2016 (P.L. 114-317) aimed to enhance IGs' access to agency records; vested CIGIE with new coordination responsibilities regarding audits and investigations that span multiple IG jurisdictions; amended the membership and investigatory procedures of CIGIE's Integrity Committee; and required IGs to submit documents containing recommendations for corrective action to affiliated agency heads, congressional committees of jurisdiction, and others upon request.

Purpose and Role

Pursuant to the IG Act, the principal purposes of IGs include

• conducting and supervising audits and investigations related to agency programs and operations;
• providing leadership and coordination and recommending policies for activities designed to promote the economy, efficiency, and effectiveness and the prevention and detection of fraud and abuse in such programs and operations; and
• keeping the agency head and Congress fully and currently informed about problems and deficiencies relating to such programs and the necessity for and progress of corrective action.⁵⁰⁶

To carry out their purposes, the IG Act grants covered IGs broad authority to

• conduct audits and investigations;
• access directly the records and information related to agency programs and operations;
• request assistance from other federal, state, and local government agencies;
• subpoena information and documents and administer oaths when conducting interviews;
• hire staff and manage their own resources;
• receive and respond to complaints from agency employees, whose identities are to be protected;
• appoint Whistleblower Protection Coordinators to educate staff on options and protections for whistleblowers;⁵⁰⁷ and
• implement the cash incentive award program in their agencies for employee disclosures of waste, fraud, and abuse.⁵⁰⁸

Notwithstanding these authorities, IGs are not authorized to take corrective action themselves. Moreover, the IG Act prohibits the transfer of "program operating responsibilities" to an IG.⁵⁰⁹

Types and Categories

Currently, 74 statutory IGs exist in the federal government.⁵¹⁰ Of these IGs, the IG Act authorized 64, and individual statutes outside the IG Act govern the remaining 10. Statutory IGs may be grouped into four different types based on authorizing statute, appointment method, affiliated federal entity and the branch of government in which it is located, oversight jurisdiction, and oversight duration.⁵¹¹ These types are Establishment IGs, who are nominated by the President and appointed with the advice and consent of the Senate; Designated Federal Entity IGs, who are appointed by agency leaders; Special IGs, who are appointed to conduct oversight of a particular topic; and other permanent IGs whose authority comes from statutes other than the IG Act.⁵¹²

Authorities and Responsibilities

As mentioned previously, the IG Act vests establishment IGs and DFE IGs with many authorities and responsibilities to carry out their respective missions. Several of these authorities and responsibilities are described in more detail below.⁵¹³

Oversight Jurisdiction

Typically, the jurisdiction of an IG includes only the programs, operations, and activities of a single affiliated entity and its components. In some cases, one IG operates for multiple federal entities.⁵¹⁴ For example, the IG of the Board of Governors for the Federal Reserve System was given jurisdiction over the Consumer Financial Protection Bureau, which the Dodd-Frank Wall Street Reform and Consumer Protection Act⁵¹⁵ established as an "independent bureau" in the Federal Reserve System. In other cases, multiple IGs operate for a single federal entity. For example, two statutory IGs operate for the Department of the Treasury—one IG to oversee department-wide programs and operations and one IG (U.S. Treasury Inspector General for Tax Administration) to oversee the programs and operations of the Internal Revenue Service.

Reporting Requirements

IGs have various reporting obligations to Congress, the Attorney General, agency head(s), and the public. One such obligation is to report suspected violations of federal criminal law directly and expeditiously to the Attorney General.⁵¹⁶ IGs are also required to report semiannually about their activities, findings, and recommendations to the agency heads, who must submit the IGs' reports to Congress, unaltered, within 30 days.⁵¹⁷ These semiannual reports are to be made available to the public within 60 days of their submission to Congress.⁵¹⁸ IGs are also to report "particularly serious or flagrant problems" immediately to the agency heads, who must submit the IG reports to Congress within seven days.⁵¹⁹ The majority of statutory IGs have also elected to participate in Oversight.gov, a central repository for OIG reports that was established in 2017.⁵²⁰

Independence

Under the IG Act, IGs are to be selected without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial and management analysis, law, public administration, or investigations.⁵²¹ IGs have broad authorities and protections to support and reinforce their independence, such as the authority to hire their own staff and access all records related to the programs and operations of their affiliated entities.⁵²²

IGs also determine the priorities and projects for their offices without outside direction in most cases. An IG may decide to conduct a review requested by the agency head, the President, Congress, agency employees, or others. They are not obligated to do so, however, unless required by law.⁵²³ IGs serve under the "general supervision" of the agency head, reporting exclusively to the head or to the officer next in rank if such authority is delegated.⁵²⁴ Additionally all establishment and DFE IGs formulate their own budget estimates, which are provided to Congress as part of the President's budget,⁵²⁵ and establishment IGs receive their appropriations in separate budget accounts from the agencies in which they operate.⁵²⁶

Appointment and Removal Methods

Appointment and removal procedures vary among statutory IGs. Establishment IGs are appointed and removable by the President. When exercising removal authority, the President must communicate the reasons to Congress in writing 30 days prior to the scheduled removal date.⁵²⁷ A DFE IG, by contrast, is appointed and can be removed by the agency head, who must also notify Congress in writing 30 days in advance when exercising the removal authority.⁵²⁸ In cases where a board or commission is considered the DFE head, removal of a DFE IG requires the written concurrence of a two-thirds majority of the board or commission members.⁵²⁹ The U.S. Postal Service (USPS) IG is the only IG that can be removed only "for cause," and then only by the written concurrence of at least seven of the nine presidentially appointed governors of USPS.⁵³⁰

Coordination and Oversight

Coordination among the IGs and oversight of their actions exists through several channels, including interagency bodies created by public law or administrative directive:⁵³¹

• CIGIE. CIGIE is the primary coordinating body for statutory IGs.⁵³² Among other things, CIGIE is intended to aid in coordination among IGs and maintain programs and resources to train and professionalize OIG personnel.⁵³³ CIGIE includes all statutory IGs along with other relevant officers, such as a representative of the FBI and the special counsel of the Office of Special Counsel.⁵³⁴ The CIGIE chair is an IG chosen from within its ranks, while the executive chair is the OMB deputy director of management.⁵³⁵
• CIGIE Integrity Committee. The CIGIE Integrity Committee—the sole statutory committee of the council—plays a lead role in addressing allegations of IG wrongdoing. The committee receives, reviews, and refers for investigation alleged misconduct by the IG or OIG according to processes and procedures detailed in the IG Act.⁵³⁶ The committee is composed of six members—four IGs on the full council, the FBI representative on the council, and the director of the Office of Government Ethics. The committee chairperson is elected to a two-year term by the members of the committee.⁵³⁷
• Other coordinative bodies. Other interagency mechanisms have been created by law or administrative directive to assist coordination among IGs. For example, Congress established a lead IG for overseas contingency operations—a formal role assigned to one of three IGs (Department of Defense, Department of State, and U.S. Agency for International Development) to coordinate comprehensive oversight of program and operations in support of covered overseas contingency operations.⁵³⁸ Further, Congress established a Council of Inspectors General on Financial Oversight to facilitate information sharing among them and develop ways to improve financial oversight.⁵³⁹ Organizations have also been administratively created to help coordinate IG activities and capabilities for selected policy issues, such as the Defense Council on Integrity and Efficiency and the Disaster Assistance Working Group.⁵⁴⁰

Oversight Information Sources and Consultant Services

Congress calls upon a variety of sources for information and analysis to support its oversight activities. Legislative support agencies—CRS, CBO, and GAO—provide most of this assistance. In addition, various support offices established in the House and Senate may have a role in oversight through the legal, legislative, administrative, financial, and ceremonial functions they perform. Two of these—the Offices of Senate Legal Counsel and House General Counsel—are highlighted below. A range of outside interest groups and research organizations also provide rich sources of information.

Congressional Research Service

CRS⁵⁴¹ is the public policy research arm of Congress. Originally established as the Legislative Reference Service in 1914, CRS was renamed and given expanded research and analytic duties with the passage of the Legislative Reorganization Act of 1970.⁵⁴²

CRS analysts, attorneys, and information specialists provide nonpartisan, confidential analysis on current and emerging issues of national policy. CRS works exclusively for Congress, providing the legislature with an independent source of information and assisting Congress in its ability to oversee the executive branch in a system characterized by separation of powers.

In addition to serving the committees and party leaders of the House and Senate, CRS responds to requests for assistance from all Members of both houses regardless of their party, length of service, or political philosophy. CRS also assists congressional staff in district and state offices.

CRS supports the House and Senate at all stages of the legislative process. Individual Members or their staffs may request help from CRS, for example, in learning about issues; developing ideas for legislation; providing technical assistance during hearings and markups; evaluating and comparing legislative proposals made by the President, their colleagues, or private organizations; understanding the effects of House and Senate rules on the legislative process; and clarifying the legal effects a bill may have. CRS also assists Members and staff to plan and execute oversight.

CRS support for congressional oversight activities take many forms. It includes confidential consultations in-person and by phone, video, and email. Other examples include analytical reports and memoranda; customized training/briefings for offices; classes, seminars, and podcasts; database searches; and other research products and services. Its analysts also deliver expert testimony before congressional committees.

Although CRS does not draft bills, resolutions, and amendments, CRS staff may support the staff of Members and committees consulting with the professional drafting staff within each chamber's Office of the Legislative Counsel as they translate the Member's policy decisions into formal legislative language. CRS is also prohibited from preparing products of a partisan nature or advocating bills or policies and researching individual Members or living former Members of Congress (other than holders of, or nominees to, federal appointive office). It also cannot undertake casework or provide translation services, provide personal legal or medical advice, undertake personal or academic research, provide clerical assistance, or conduct audits or field investigations.

In all of their work, CRS staff are governed by requirements for confidentiality, timeliness, authoritativeness, objectivity, and nonpartisanship. CRS makes no legislative or other policy recommendations to Congress. Its responsibility is to ensure that Members of the House and Senate have available the best possible information and analysis on which to base the policy decisions the American people have elected them to make.

The Librarian of Congress appoints the director of CRS "after consultation with the Joint Committee on the Library."⁵⁴³

Pursuant to the FY2018 Consolidated Appropriations Act, CRS launched a website to provide public access to CRS reports (https://crsreports.congress.gov/).⁵⁴⁴ The confidentiality of congressional requests or responses (such as confidential memoranda) remains unchanged, and only the Members of Congress who received these confidential communications may release them.

Congressional Budget Office

Since its founding in 1974,⁵⁴⁵ CBO has provided an objective, impartial, and nonpartisan source of budgetary and economic information to support the congressional budget process in the House and Senate. Economists and policy analysts at CBO generate a variety of products in support of Congress and the budget process, including dozens of reports and hundreds of cost estimates each year.

CBO provides formal cost estimates of virtually every bill reported by congressional committees in addition to preliminary, informal estimates of legislative proposals at various stages of the legislative process. Additionally, CBO regularly prepares reports on the economic and budget outlook, analysis of the President's budget proposals, scorekeeping reports, assessments of unfunded mandates, and products and testimony related to other budgetary matters.⁵⁴⁶

CBO does not make policy recommendations, and its reports and cost estimates contain information regarding the agency's assumptions and methodologies. All of CBO's products, apart from informal cost estimates for legislation being developed privately by Members of Congress or their staffs, are available to Congress and the public on CBO's website.

The Speaker of the House of Representatives and the President pro tempore of the Senate jointly appoint the CBO director after considering recommendations from the two budget committees. The Congressional Budget and Impoundment Control Act of 1974 specifies that CBO's director is to be chosen without regard to political affiliation.

Government Accountability Office

The Government Accountability Office (GAO), formerly known as the General Accounting Office, was established by the Budget and Accounting Act of 1921 as an independent auditor of government agencies⁵⁴⁷ and has statutory authority to gather information from and investigate agencies.⁵⁴⁸ The GAO's mission is to support Congress in meeting its constitutional responsibilities and to help improve the performance and ensure the accountability of the federal government.

GAO issues hundreds of reports, testimony statements, and legal opinions each year.⁵⁴⁹ GAO's reports typically support congressional oversight through focusing on

• auditing agency operations to determine whether federal funds are being spent efficiently and effectively;
• identifying opportunities to address duplication, fragmentation, overlap, waste, or inefficiencies in the use of public funds;
• reporting on how well government programs and policies are meeting their objectives;
• performing policy analyses and outlining options for congressional consideration; and
• investigating allegations of illegal and improper activities.

GAO's objective is to produce high-quality reports, testimonies, briefings, and other products and services that are objective, fact-based, nonpartisan, non-ideological, fair, and balanced. The agency operates under strict professional standards, including Government Auditing Standards and a quality assurance framework. GAO's products include oral briefings, testimony, and written reports. All non-classified reports are made available to the public through posting on GAO's website. Report recommendations that remain to be addressed, including those that are a priority, are included in GAO's Recommendations Database (https://www.gao.gov/recommendations).

GAO prepares most of its reports in response to congressional requests or requirements in statute or committee or conference reports. It undertakes a small percentage of reviews under the Comptroller General's authority.

GAO's Watchdog website,⁵⁵⁰ available on the House and Senate intranet, provides information on how to request GAO reports, GAO's policies for accepting and prioritizing mandates and requests (contained in its Congressional Protocols⁵⁵¹) and information about ongoing reviews, among other things. GAO encourages Members and staff to consult with its staff when considering a request or mandate for a report.

In addition to its audits and evaluations, GAO offers a number of other services, including performing forensic audits and investigations of waste, fraud, and abuse; providing various legal services; prescribing accounting principles and standards for the executive branch; providing other services to help the audit and evaluation community improve and keep abreast of current developments; occasionally detailing staff to work for congressional committees for up to one year on request of committee leadership; and providing testimony from the Comptroller General on high-level issues and the role of government.

GAO is led by the Comptroller General of the United States, who is appointed by the President with the advice and consent of the Senate, from a list of candidates selected by a bipartisan, bicameral congressional commission. The Comptroller General is appointed to a 15-year term and may not be reappointed. GAO's staff are located in Washington, DC, and in field offices in Atlanta, Boston, Chicago, Dallas, Dayton, Denver, Huntsville, Los Angeles, Norfolk, Oakland, and Seattle.

Offices of Senate Legal Counsel and House General Counsel

Since their establishment, the Offices of Senate Legal Counsel and House General Counsel have developed parallel yet distinctly unique and independent roles as institutional legal "voices" of the two bodies they represent. Both offices perform functions important to committee oversight, including representing the committees of their respective chambers in certain judicial proceedings.

Senate Legal Counsel

The Office of Senate Legal Counsel provides legal assistance and representation to Senators, committees, officers, and employees of the Senate on matters pertaining to their official duties. It was established "to serve the institution of Congress rather than the partisan interests of one party or another"⁵⁵² in the Ethics in Government Act of 1978.⁵⁵³

Statutory duties of the office include defensive legal representation of the Senate, its committees, members, officers, and employees;⁵⁵⁴ representation in legal proceedings to aid investigations by Senate committees;⁵⁵⁵ representation of the Senate itself in litigation in cases in which the Senate is a party and also as amicus curiae when the Senate has an institutional interest;⁵⁵⁶ providing legal advice and assistance to Senators;⁵⁵⁷ and performing such other duties consistent with the nonpartisan purposes and limitations of Title VII of the Ethics Act as the Senate may direct.⁵⁵⁸

Critical to committee oversight, the Senate legal counsel may represent committees in proceedings to obtain evidence for Senate investigations. Specifically, the office may represent a Senate committee or subcommittee in a civil action to enforce a subpoena.⁵⁵⁹ Additionally, a committee may direct the Senate legal counsel to represent it or any of its subcommittees in an application for an immunity order.⁵⁶⁰

The office also has a number of advisory functions. Principal among these are the responsibility of advising members, committees, and officers of the Senate with respect to subpoenas or requests for the withdrawal of Senate documents and the responsibility of advising committees about their promulgation and implementation of rules and procedures for congressional investigations. The office also provides advice about legal questions that arise during the course of investigations.⁵⁶¹

In addition, the counsel's office provides information and advice to Senators, officers, and employees on a wide range of legal and administrative matters relating to Senate business. Unlike the House practice, the Senate legal counsel plays no formal role in the review and issuance of subpoenas. However, committees may wish to consult with the office regarding the form and substance of proposed subpoenas prior to their issuance by committees.

The office is led by the Senate legal counsel and deputy counsel, who are appointed by the President pro tempore of the Senate from among recommendations submitted by the majority and minority leaders of the Senate without regard for political affiliation.⁵⁶²

House General Counsel

The House Office of General Counsel, authorized under House Rule II, clause 8, serves the role of counsel for the institution. The office provides legal assistance and representation to Members, committees, officers, and employees of the House of Representatives, without regard to political affiliation, on matters pertaining to their official duties.

The work of the office typically includes providing legal advice and assistance to House committees in the preparation and service of subpoenas; representing Members, committees, officers, and employees of the House in judicial proceedings; providing legal advice and assistance to Members; and providing legal guidance regarding requests from executive branch agencies.

Committees often work closely with the Office of General Counsel in drafting subpoenas; dealing with various asserted constitutional, statutory, and common law privileges; responding to executive agencies and officials that resist congressional oversight; and navigating the statutory process for obtaining a contempt citation with respect to a recalcitrant witness.

The office represents the interests of House committees in judicial proceedings. The office represents committees in federal court on applications for immunity orders pursuant to Title 18, Section 6005, of the U.S. Code; appears as amicus curiae in cases affecting House committee investigations; defends against attempts to obtain direct or indirect judicial interference with congressional subpoenas or other investigatory authority; represents committees seeking to prevent compelled disclosure of nonpublic information relating to their investigatory or other legislative activities; and appears in court on behalf of committees seeking judicial assistance in obtaining access to documents or information, such as documents that are under seal or materials that may be protected by Rule 6(e) of the Federal Rules of Criminal Procedure.

The Speaker appoints the general counsel, deputy general counsel, and other attorneys of the office. The office functions "pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group," which consists of the majority and minority leaderships.⁵⁶³

Office of Management and Budget

OMB came into existence under its current name in 1970. Its predecessor agency, the Bureau of the Budget, was established in 1921. Initially created as a unit in the Treasury Department, the agency has been a part of the Executive Office of the President since 1939.

Capabilities

OMB, though created by Congress, functions in many ways as the President's agent for the management and implementation of policy, including the federal budget.⁵⁶⁴ In practice, OMB's major responsibilities include

• assisting the President in the preparation of budget proposals and development of a fiscal program;
• supervising and controlling the administration of the budget in the executive branch, including transmittal to Congress of proposals for deferrals and rescissions;
• keeping the President informed about agencies' activities (proposed, initiated, and completed) in order to coordinate efforts, expend appropriations economically, and minimize unnecessary overlap and duplication;
• administering the process of review of draft proposed and final agency rules established by Executive Order 12866;
• administering the process of review and approval of collections of information by federal agencies and reducing the burden of agency information collection on the public under the Paperwork Reduction Act of 1995;
• overseeing (1) the manner in which agencies disseminate information to the public (including electronic dissemination); (2) how agencies collect, maintain, and use statistics; (3) how agencies' archives are maintained; (4) how agencies develop systems for ensuring privacy, confidentiality, security, and the sharing of information collected by the government; and (5) how the government acquires and uses information technology, pursuant to the Paperwork Reduction Act of 1995,⁵⁶⁵ the Clinger-Cohen Act of 1996,⁵⁶⁶ and other legislation;
• studying and promoting better governmental management, including making recommendations to agencies regarding their administrative organization and operations;
• clearing and coordinating agencies' draft testimony and legislative proposals and making recommendations about presidential action on legislation;
• assisting in the preparation, consideration, and clearance of executive orders and proclamations;
• planning and developing information systems that provide the President with agency and program performance data;
• establishing and overseeing implementation of financial management policies and requirements for the federal government;
• assisting in development of regulatory reform proposals and programs for paperwork reduction and the implementation of these initiatives;
• improving the economy and efficiency of the federal procurement process by providing overall direction for procurement policies, regulations, procedures, and forms.

Limitations

OMB is inevitably drawn into institutional and partisan struggles between the President and Congress. Difficulties with Congress notwithstanding, OMB is a central coordinator and overseer for executive agencies and can be a rich potential source of information for investigative and oversight committees. In addition, Congress may through legislation assign duties to OMB in order to establish oversight mechanisms and advance congressional oversight objectives.

Budget Information

The 1974 Budget Act, as amended, provides Congress with significant resources on budgetary information. Extensive budgetary materials are also available from the executive branch. Some of the major sources of budgetary information are available on and off Capitol Hill. They include (1) the President and executive agencies (under the Budget and Accounting Act of 1921, the President presents an annual budget to Congress); (2) CBO; (3) the House and Senate Budget Committees; (4) the House and Senate Appropriations Committees; and (5) the House and Senate legislative committees. In addition, CRS and GAO prepare reports that address the budget and related issues.

Discretionary spending, the component of the budget that the Appropriations Committees control through the annual appropriations process, accounts for about one-third of federal spending. Other House and Senate committees, particularly the House Committee on Ways and Means and the Senate Committee on Finance, oversee more than $2 trillion in spending through reauthorizations, direct spending measures, and reconciliation legislation. In addition, the latter two committees oversee a diverse set of programs—including tax collection, tax expenditures, and some user fees—through the revenue process. The oversight activities of all of these committees is enhanced through the use of the diverse range of budgetary information that is available to them.

Executive Branch Budget Products

Budget of the United States Government contains the Budget Message of the President and information on the President's budget proposals by budget function.

Analytical Perspectives, Budget of the United States Government contains analyses that are designed to highlight specified subject areas or provide other significant presentations of budget data that place the budget in perspective. This volume includes economic and accounting analyses, information on federal receipts and collections, analyses of federal spending, information on federal borrowing and debt, baseline or current services estimates, and other technical presentations. The Analytical Perspectives volume also contains supplemental material with several detailed tables—including tables showing the budget by agency and account and by function, subfunction, and program—that are available on the internet and as a CD-ROM in the printed document.

Historical Tables provides data on budget receipts, outlays, surpluses or deficits, federal debt, and federal employment over an extended time period, generally from 1940 or earlier to the present. To the extent feasible, the data have been adjusted to provide consistency with the budget and to provide comparability over time.

Appendix, Budget of the United States Government contains detailed information on the various appropriations and funds that constitute the budget. The Appendix contains financial information on individual programs and appropriation accounts. It includes for each agency the proposed text of appropriations language, budget schedules for each account, legislative proposals, explanations of the work to be performed and the funds needed, and proposed general provisions applicable to the appropriations of entire agencies or groups of agencies. Information is also provided on certain activities whose transactions are not part of the budget totals.

Several other points about the President's budget are worth noting. The President's budgetary communications to Congress continue after submission of the budget (typically in early February) and usually include a series of budget amendments and supplemental appropriations, the Mid-Session Review, SAPs on legislation, and even revised budgets on occasion. Most of these additional communications are issued as House documents and are available on the web from the Government Publishing Office or the OMB home page (in the case of SAPs). The initial budget products often do not provide sufficient information on the President's budgetary recommendations to enable committees to begin developing legislation. Further budgetary information is provided in the agencies' "justification" materials (see below) and the later submission of legislative proposals. Finally, many executive agency documents (such as agency budget submissions to OMB) are often not made available to Congress.

Agency Budget Justifications are typically detailed documents that agencies submit to the House and Senate Appropriations Committees each year to support their budget requests. Generally, agency budget justifications consist of descriptions of each agency's programs and activities and their purposes.⁵⁶⁷ Agencies may also include explanations of the proposed changes in appropriations and activities for the next fiscal year, often concentrating on the increase or decrease in spending from the previous fiscal year. The format and content of budget justifications differ from agency to agency and may reflect the influence of agencies and their component organizations, House and Senate appropriators, and OMB. Many participants in the annual appropriations process also refer to these documents as "congressional budget justifications," or "CBJs."

Some Other Sources of Useful Budgetary Information

Appropriations Committees. The subcommittees of the House and Senate Appropriations Committees hold extensive hearings on the fiscal year appropriations requests of federal departments and agencies. Each federal department or agency submits justification material to the Committees on Appropriations. Their submissions can run from several hundred pages to over 2,000 pages. The Appropriations subcommittees typically print this material with the hearing record of the federal officials concerning these requests.

Budget Committees. The House and Senate Budget Committees, in preparing to report the annual concurrent budget resolution, conduct hearings on overall federal budget policy. These hearings and other fiscal analyses made by these panels address various aspects of federal programs and funding levels that can be useful sources of information.

Other committees. To assist the Budget Committees in developing the concurrent budget resolution, other committees are required to prepare "views and estimates" of programs in their jurisdiction. Committee views and estimates, usually packaged together and issued as a committee print, may also be a useful source of detailed budget data.

Internal agency studies and budget reviews. These agency studies and reviews are often conducted in support of budget formulation and can yield useful information about individual programs. The budgeting documents, evaluations, and priority rankings of individual agency programs can provide insights into executive branch views of the importance of individual programs.

Nonfederal Information Resources

Committees and Members can acquire useful information about executive branch programs and performance from nonfederal stakeholders. These stakeholders may bring expertise to congressional deliberations, and they may be categorized in many ways. Illustrative examples of these stakeholders and their potential contribution to congressional oversight are described below.

State and local governments may offer valuable information to congressional overseers on the efficiency, effectiveness, and fairness of federal programs and policies, including potential implementation challenges and unintended consequences. State and local governments administer many federal programs, policies, and funds—such as those related to health care (e.g., Medicaid), workforce development, education, and disaster management—and often audit or evaluate their effectiveness. Some state and local programs have also served as models for similar programs at the federal level.

Think tanks and good government organizations are research entities that periodically conduct studies of public policy issues that may inform Members and committees on how well federal agencies and programs are working. Examples of think tanks include the Brookings Institution, the RAND Corporation, and the Heritage Foundation. Examples of good government organizations include the National Academy of Public Administration, the Partnership for Public Service, and the Project on Government Oversight (POGO). Think tanks and good government organizations may operate under various legal authorities (e.g., 501(c)(3) status with the Internal Revenue Service), and their political ideologies and policy issues of focus can vary widely. Some organizations, such as POGO, focus explicitly on improving government and congressional oversight.

Media organizations are a frequent source of information that might be useful to Members and committees conducting oversight. Media organizations provide both general coverage that they believe will be of interest to the general public as well as specialized reporting on topics that might provide a more detailed view into particular policy areas. Additionally, in recent years there has been increased interest in nonprofit investigative journalism by organizations such as ProPublica, which tend to produce more deeply reporting on matters with public policy impacts that may be of particular interest to Congress. Regardless of their focus, journalists may develop sources and publicize information that can useful to Congress and would not otherwise come to the body's attention.

Interest groups might provide unique perspectives on the impact of legislation to Members and committees, including potential unintended consequences on specific populations. In general, interest groups are organizations that represent individuals or entities who share common views on a specific public policy issue, such as civil rights, education, or health. An interest group often takes a particular position on a policy issue and advocates for adoption of laws and policies that align with that position. Such advocacy can include attempts to directly influence public policy, including lobbying Members and congressional committees.

Nongovernmental organizations (NGOs), broadly speaking, are entities that are independent of government involvement or control. The acronym NGO can encompass a broad range of entities, such as international organizations or domestic nonprofit organizations. Similar to think tanks, NGOs can vary in terms of their purpose, legal authorities, policy areas of focus, and political or religious affiliations. NGOs may be active in different aspects of social, political, scientific, environmental, and humanitarian policymaking. NGOs might provide valuable assistance to congressional overseers in navigating a broad range of policy issues. According to the Department of State, NGOs "often develop and address new approaches to social and economic problems that governments cannot address alone."⁵⁶⁸

Private sector companies might assist Members and committees in overseeing the implementation of agency programs and policies, including by identifying potential application of private sector expertise and practices to government programs and services. Companies that are regulated may also have feedback on the effectiveness of the regulation and how related implementation could be improved. Companies may also market themselves to federal agencies, seeking brand recognition and contracts. In addition to providing consultative services to agencies, private sector companies may publish insights and perspectives on certain federal policy issues, such as shared services, information technology, and cybersecurity.

Members of the general public can provide useful feedback on how well federal programs and services are working. Such feedback can assist Members and committees in obtaining policy-relevant information about program performance and in evaluating the problems individuals might be having with federal administrators and agencies. A variety of methods might be employed to solicit the views of those who receive federal programs and services, including investigations and hearings, field and on-site meetings, and surveys.

Appendix A. Illustrative Subpoena

GENERAL INSTRUCTIONS

1. In complying with this Subpoena, you are required to produce all responsive documents that are in your possession, custody, or control, whether held by you or your past or present agents, employees, and representatives acting on your behalf. You are also required to produce documents that you have a legal right to obtain, documents that you have a right to copy or have access to, and documents that you have placed in the temporary possession, custody, or control of any third party. No records, documents, data or information called for by this request shall be destroyed, modified, removed or otherwise made inaccessible to the Committee.

2. In the event that any entity, organization or individual denoted in this subpoena has been, or is also known by any other name than that herein denoted, the subpoena shall be read to also include them under that alternative identification.

3. Each document produced shall be produced in a form that renders the document susceptible of copying.

4. Documents produced in response to this subpoena shall be produced together with copies of file labels, dividers or identifying markers with which they were associated when this subpoena was served. Also identify to which paragraph from the subpoena that such documents are responsive.

5. It shall not be a basis for refusal to produce documents that any other person or entity also possesses non-identical or identical copies of the same document.

6. If any of the subpoenaed information is available in machine-readable form (such as punch cards, paper or magnetic tapes, drums, disks, or core storage), state the form in which it is available and provide sufficient detail to allow the information to be copied to a readable format. If the information requested is stored in a computer, indicate whether you have an existing program that will print the records in a readable form.

7. If the subpoena cannot be complied with in full, it shall be complied with to the extent possible, which shall include an explanation of why full compliance is not possible.

8. In the event that a document is withheld on the basis of privilege, provide the following information concerning any such document: (a) the privilege asserted; (b) the type of document; (c) the general subject matter; (d) the date, author and addressee; and (e) the relationship of the author and addressee to each other.

9. If any document responsive to this subpoena was, but no longer is, in your possession, custody, or control, identify the document (stating its date, author, subject and recipients) and explain the circumstances by which the document ceased to be in your possession, or control.

10. If a date set forth in this subpoena referring to a communication, meeting, or other event is inaccurate, but the actual date is known to you or is otherwise apparent from the context of the request, you should produce all documents which would be responsive as if the date were correct.

11. Other than subpoena questions directed at the activities of specified entities or persons, to the extent that information contained in documents sought by this subpoena may require production of donor lists, or information otherwise enabling the re-creation of donor lists, such identifying information may be redacted.

12. The time period covered by this subpoena is included in the attached Schedule A.

13. This request is continuing in nature. Any record, document, compilation of data or information, not produced because it has not been located or discovered by the return date, shall be produced immediately upon location or discovery subsequent thereto.

14. All documents shall be Bates stamped sequentially and produced sequentially.

15. Two sets of documents shall be delivered, one set for the Majority Staff and one set for the Minority Staff. When documents are produced to the Subcommittee, production sets shall be delivered to the Majority Staff in Room B346 Rayburn House Office Building and the Minority Staff in Room 2101 Rayburn House Office Building.

GENERAL DEFINITIONS

1. The term "document" means any written, recorded, or graphic matter of any nature whatsoever, regardless of how recorded, and whether original or copy, including, but not limited to, the following: memoranda, reports, expense reports, books, manuals, instructions, financial reports, working papers, records notes, letters, notices, confirmations, telegrams, receipts, appraisals, pamphlets, magazines, newspapers, prospectuses, interoffice and intra office communications, electronic mail (E-mail), contracts, cables, notations of any type of conversation, telephone call, meeting or other communication, bulletins, printed matter, computer printouts, teletypes, invoices, transcripts, diaries, analyses, returns, summaries, minutes, bills, accounts, estimates, projections, comparisons, messages, correspondence, press releases, circulars, financial statements, reviews, opinions, offers, studies and investigations, questionnaires and surveys, and work sheets (and all drafts, preliminary versions, alterations, modifications, revisions, changes, and amendments of any of the foregoing, as well as any attachments or appendices thereto), and graphic or oral records or representations of any kind (including without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings and motion pictures), and electronic, mechanical, and electric records or representations of any kind (including, without limitation, tapes, cassettes, discs, and recordings) and other written, printed, typed, or other graphic or recorded matter of any kind or nature, however produced or reproduced, and whether preserved in writing, film, tape, disc, or videotape. A documents bearing any notation not a part of the original text is to be considered a separate document. A draft or non-identical copy is a separate document within the meaning of this term.

2. The term "communication" means each manner or means of disclosure or exchange of information, regardless of means utilized, whether oral, electronic, by document or otherwise, and whether face to face, in a meeting, by telephone, mail, telexes, discussions, releases, personal delivery, or otherwise.

3. The terms "and" and "or" shall be construed broadly and either conjunctively or disjunctively to bring within the scope of this subpoena any information which might otherwise be construed to be outside its scope. The singular includes plural number, and vice versa. The masculine includes the feminine and neuter genders.

4. The term "White House" refers to the Executive Office of the President and all of its units including, without limitation, the Office of Administration, the White House Office, the Office of the Vice President, the Office of Science and Technology Policy, the Office of Management and Budget, the United States Trade Representative, the Office of Public Liaison, the Office of Correspondence, the Office of the Deputy Chief of Staff for Policy and Political Affairs, the Office of the Deputy Chief of Staff for White House Operations, the Domestic Policy Council, the Office of Federal Procurement Policy, the Office of Intergovernmental Affairs, the Office of Legislative Affairs, Media Affairs, the National Economic Council, the Office of Policy Development, the Office of Political Affairs, the Office of Presidential Personnel, the Office of the Press Secretary, the Office of Scheduling and Advance, the Council of Economic Advisors, the Council on Environmental Quality, the Executive Residence, the President's Foreign Intelligence Advisory Board, the National Security Council, the Office of National Drug Control, and the Office of Policy Development.

March 10, 1998

Custodian of Documents
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001

SCHEDULE A

1. All organizational charts and personnel rosters for the International Brotherhood of Teamsters ("Teamsters" or "IBT"), including the DRIVE PAC, in effect during calendar years 1991 through 1997.

2. All IBT operating, finance, and administrative manuals in effect during calendar years 1991 through 1997, including, but not limited to those that set forth (1) operating policies, practices, and procedures; (2) internal financial practices and reporting requirements; and (3) authorization, approval, and review responsibilities.

3. All annual audit reports of the IBT for the years 1991 through 1996 performed by the auditing firm of Grant Thornton.

4. All IBT annual reports to its membership and the public for years 1991 through 1997, including copies of IBT annual audited financial statements certified to by independent public accountants.

5. All books and records showing receipts and expenditures, assets and liabilities, profits and losses, and all other records used for recording the financial affairs of the IBT including, journals (or other books of original entry) and ledgers including cash receipts journals, cash disbursements journals, revenue journals, general journals, subledgers, and workpapers reflecting accounting entries.

6. All Federal Income Tax returns filed by the IBT for years 1991 through 1997.

7. All minutes of the General Board, Executive Board, Executive Council, and all Standing Committees, including any internal ethics committees formed to investigate misconduct and corruption, and all handouts and reports prepared and produced at each Committee meeting.

8. All documents referring or relating to, or containing information about, any contribution, donation, expenditure, outlay, in-kind assistance, transfer, loan, or grant (from DRIVE, DRIVE E&L fund, or IBT general treasury) to any of the following entities/organizations:

a. Citizen Action

b. Campaign for a Responsible Congress

c. Project Vote

d. National Council of Senior Citizens

e. Vote Now '96

f. AFL-CIO

g. AFSCME

h. Democratic National Committee

i. Democratic Senatorial Campaign Committee ("DSCC")

j. Democratic Congressional Campaign Committee ("DCCC")

k. State Democratic Parties

1. Clinton-Gore '96

m. SEIU

9. All documents referring or relating to, or containing information about any of the following individuals/entities:

a. Teamsters for a Corruption Free Union

b. Teamsters for a Democratic Union

c. Concerned Teamsters 2000

d. Martin Davis

e. Michael Ansara

f. Jere Nash

g. Share Group

h. November Group

i. Terrence McAuliffe

j. Charles Blitz

k. New Party

1. James P. Hoffa Campaign

m. Delancy Printing

n. Axis Enterprises

o. Barbara Arnold

p. Peter McGourty

q. Charles McDonald

r. Theodore Kheel

10. All documents referring or relating to, or containing information on about, communications between the Teamsters and the White House regarding any of the following issues:

a. United Parcel Service Strike

b. Diamond Walnut Company Strike

c. Pony Express Company organizing efforts

d. Davis Bacon Act

e. NAFTA Border Crossings

f. Ron Carey reelection campaign

g. IBT support to 1996 federal election campaigns.

i. All documents referring or relating to, or containing information about, communications between the Teamsters and the Federal Election Commission.

12. All documents referring or relating to, or containing information about, communications between the Teamsters and the Democratic National Committee, DSCC, or DCCC.

13. All documents referring or relating to, or containing information about, communications between the Teamsters and the Clinton-Gore '96 Campaign Committee.

14. All documents referring or relating to, or containing information about, policies and procedures in effect during 1996 regarding the approval of expenditures from the IBT general treasury, DRIVE E&L fund, and DRIVE PAC.

15. All documents referring or relating to, or containing information about the retention by the IBT of the law firm Covington & Burling and/or Charles Ruff.

16. All documents referring or relating to, or containing information about work for the IBT performed by the firm Palladino & Sutherland and/or Jack Palladino.

17. All documents referring or relating to, or containing information about work for the IBT performed by Ace Investigations and/or Guerrieri, Edmund, and James.

18. All documents referring or relating to, or containing information about IBT involvement in the 1995-1996 Oregon Senate race (Ron Wyden vs. Gordon Smith).

19. All documents referring or relating to, or containing information about, Ron Carey's campaign for reelection as general president of the Teamsters.

20. All documents referring or relating to, or containing information about organization, planning, and operation of the 1996 IBT Convention.

21. All documents referring or relating to, or containing information about the following:

a. Trish Hoppey

b. John Latz

c. any individual with the last name of "Golovner".

d. Convention Management Group.

22. All documents referring or relating to, or containing information about the Household Finance Corporation.

23. All documents referring or relating to, or containing information about, any "affinity credit card" program or other credit card program sponsored by or participated in by the IBT.

24. A list of all bank accounts held by the International Brotherhood of Teamsters including the name of the bank, account number, and bank address.

25. All documents referring or relating to, or containing information about, payments made by the IBT to any official or employee of the Independent Review Board.

26. Unless otherwise indicated, the time period covered by this subpoena is between January 1991 and December 1997.

Appendix B. Example Congressional Oversight Letter

Appendix C. Examples of White House Response to Congressional Requests

THE WHITE HOUSE

November 4, 1982

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Procedures Governing Responses to Congressional Request for Information

The policy of this administration is to comply with Congressional Requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. While this Administration, like its predecessors, has an obligation to protect the confidentiality of some communications, executive privilege will be asserted only in the most compelling circumstances, and only after careful review demonstrates that assertion of the privilege is necessary. Historically, good faith negotiations between Congress and the executive branch has minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving conflicts between the Branches. To ensure that every reasonable accommodation is made to the needs of Congress, executive privilege shall not be invoked without specific Presidential authorization.

The Supreme Court has held that the Executive Branch may occasionally find it necessary and proper to preserve the confidentiality of national security secrets, deliberative communications that form a part of the decision-making process, or other information important to the discharge of the Executive Branch's constitutional responsibilities. Legitimate and appropriate claims of privilege should not thoughtlessly be waived. However, to ensure that this Administration acts responsibly and consistently in the exercise of its duties, with due regard for the responsibilities and prerogatives of Congress, the following procedures shall be followed whenever Congressional requests for information raise concerns regarding the confidentiality of the information sought:

1. Congressional requests for information shall be complied with as promptly and as fully as possible, unless it is determined that compliance raises a substantial question of executive privilege. A "substantial question of executive privilege" exists if disclosure of the information requested might significantly impair the national security (including the conduct of foreign relations), the deliberative processes of the Executive Branch or other aspects of the performance of the Executive Branch's constitutional duties.

2. If the head of an executive department or agency ("Department Head") believes, after consultation with department counsel, that compliance with a Congressional request for information raises a substantial question of executive privilege, he shall promptly notify and consult with the Attorney General through the Assistant Attorney General for the Office of Legal Counsel, and shall also promptly notify and consult with the Counsel to the President. If the information requested of a department or agency derives in whole or in part or from information received from another department or agency, the latter entity shall also be consulted as to whether disclosure of the information raises a substantial question of executive privilege.

3. Every effort shall be made to comply with the Congressional request in a manner consistent with the legitimate needs of the Executive Branch. The Department Head, the Attorney "General and the Counsel to the President may, in the exercise of their discretion in the circumstances, determine that executive privilege shall not be invoked and release the requested information.

4. If the Department Head, the Attorney General or the Counsel to the President believes, after consultation, that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President, who will advise the Department Head and the Attorney General of the President's decision.

5. Pending a final Presidential decision on the matter, the Department Head shall request the Congressional body to hold its request for the information in abeyance. The Department Head shall expressly indicate that the purpose of this request is to protect the privilege pending a Presidential decision, claim of privilege.

6. If the President decides to invoke executive privilege, the Department Head shall advise the requesting Congressional body that the claim of executive privilege is being made with the specific approval of the President.

Any questions concerning these procedures or related matters should be addressed to the Attorney General, through the Assistant Attorney General for the Office of Legal Counsel, and to the Counsel to the President.

Ronald Reagan

THE WHITE HOUSE

September 28, 1994

MEMORANDUM FOR ALL EXECUTIVE DEPARTMENT AND AGENCY GENERAL COUNSELS

FROM: LLOYD N. CUTLER, SPECIAL COUNSEL TO THE PRESIDENT

SUBJECT: Congressional Requests to Departments and Agencies for Documents Protected by Executive Privilege

The policy of this Administration is to comply with congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. While this Administration, like its predecessors, has an obligation to protect the confidentiality of core communications, executive privilege will be asserted only after careful review demonstrates that assertion of the privilege is necessary to protect Executive Branch prerogatives.

The doctrine of executive privilege protects the confidentiality of deliberations within the White House, including its policy councils, as well as communications between the White House and executive departments and agencies. Executive privilege applies to written and oral communications between and among the White House, its policy councils and Executive Branch agencies, as well as to documents that describe or prepares for such communications (e.g. "talking points"). This has been the view expressed by all recent White House Counsels. In circumstances involving communications relating to investigations of personal wrongdoing by government officials, it is our practice not to assert executive privilege, either, in judicial proceedings or in congressional investigations and hearings. Executive privilege must always be weighed against other competing governmental interests, including the judicial need to obtain relevant evidence, especially in criminal proceedings, and the congressional need to make factual findings for legislative and oversight purposes.

In the last resort, this balancing is usually conducted by the courts. However, when executive privilege is asserted against a congressional request for documents, the courts usually decline to intervene until after the other two branches have exhausted the possibility of working out a satisfactory accommodation. It is our policy to work out such an accommodation whenever we can, without unduly interfering with the President's need to conduct frank exchange of views with his principal advisors.

Historically, good faith negotiations between Congress and the Executive Branch have minimized the need for invoking executive privilege.

Executive privilege belongs to the President, not individual departments or agencies. It is essential that all requests to departments and agencies for information of the type described above be referred to the White House Counsel before any information is furnished. Departments and agencies receiving such request should therefore follow the procedures set forth below, designed to ensure that this Administration acts responsibly and consistently with respect to executive privilege issues, with due regard for the responsibilities and prerogatives of Congress:

First, any document created in the White House, including a White House policy council, or in a department or agency, that contains the deliberations of, or advice to or from, the White House, should be presumptively treated as protected by executive privilege. This is so regardless of the document's location at the time of the request or whether it originated in the White House or in a department or agency.

Second, a department or agency receiving a request for any such document should promptly notify the White House Counsel's Office, and direct any inquiries regarding such a document to the White House Counsel's Office.

Third, the White House Counsel's Office, working together with the department or agency (and, where appropriate, the DOJ), will discuss the request with appropriate congressional representatives to determine whether a mutually satisfactory recommendation is available.

Fourth, if efforts to reach a mutually satisfactory accommodation are unsuccessful, and if release of the document would pass a substantial question of executive privilege, the Counsel to the President will consult with the DOJ and other affected agencies to determine whether to recommend that the President invoke the privilege.

We believe this policy will facilitate the resolution of issues relating to disclosures to Congress and maximize the opportunity for reaching mutually satisfactory accommodations with Congress. We will of course try to cooperate with reasonable congressional requests for information in ways that preserve the President's ability to exchange frank advice with his immediate staff and the heads of the executive departments and agencies.