White House Silence to Lawmakers' Requests Raises Eyebrows, Questions

The White House has ordered agencies to ignore Democrats’ oversight requests, Politico reports this morning. The story follows a Huffington Post article about the experience of Representative Kathleen Rice (D-NY), who got the Heisman from the Office of Personnel Management when she asked “not controversial at all” questions about personnel training.

Is it frustrating to have a White House ignore inquiries from Members of Congress from the minority party? Yes. Is it new? On its face, not particularly. But there’s a caveat.

Since the Reagan era, both Republican and Democratic administrations have generally adhered to 1984 Justice Department guidance that executive branch agencies only consider requests from chairmen of Congressional committees as carrying the authority of Congress. (For a longer discussion of this, see Mort Rosenberg's excellent and newly-revised When Congress Comes Calling, Chapter 8.)

The de facto result, in present circumstances, is the diminution of oversight authority for Democratic lawmakers, as their party is in the minority in both chambers of Congress and thus hold no committee chairs.

POGO has long held that because all Members of Congress are responsible for overseeing the executive branch, agencies should respond fully and timely to any reasonable request from any Member of Congress relating to the Member's Congressional duties, to the maximal extent of the law and without regard to the requester's party or status within their chamber.

So we are as excited about the Trump administration’s position as we were about those of his predecessors. Which is to say, not at all.

However, we note that the DOJ's Office of Legal Counsel (OLC), which provides legal advice to the White House, has posted to its site an opinion dated May 1, 2017, entitled “Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch.”

The memo opines that a federal agency that receives a request for information from individual Members of Congress “may respond at its discretion, but such requests do not trigger any obligation to accommodate congressional needs[.]” In other words, there's no need to respond.

Does that represent a new stance? We’re still reviewing the memo, particularly in comparison to DOJ’s 1984 guidance. We’ll let you know what we determine. In the meantime, read it yourself and let us know what you think. You can email us at [email protected].