A new and dangerous assertion by the Department of Justice Office of Legal Counsel (OLC) regarding the duty of agencies in responding to Congress may be coming to an end. Senate Judiciary Chairman Chuck Grassley (R-IA) reported on July 28th that he received new assurances from White House Director of Legislative Affairs Marc Short that the Administration’s policy for responding to requests from Members of Congress will not follow the interpretation of the Office of Legal Counsel.
In May, a legally binding opinion by the Justice Department’s Office of Legal Counsel (OLC) was made public, stating that individual Members of Congress “do not have the authority to conduct oversight” of the executive branch, and thus are only entitled to “voluntary cooperation” with their requests for information. However, individual Members of Congress, including Members of the minority party, play a critical role in conducting important oversight efforts. If agencies follow the OLC opinion, it would significantly diminish Congress’s oversight power.
The OLC opinion (Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch) dangerously asserts that only committee or subcommittee chairs have Constitutional authority to conduct oversight and, accordingly, to make requests for, and be official recipients of, information from the executive branch. It argues that the Constitution does not authorize individual Members of Congress—including committee ranking minority members—to conduct oversight, since they are not “endowed with the full power of Congress” in the form of a chair appointment. As a result, requests for information by Members who are not Chairs would not be “properly considered” as oversight requests, because they do not “trigger any obligation to accommodate congressional needs and [are] not legally enforceable.”
As pointed out in a previous Project On Government Oversight blog, Congress has rightly criticized the executive branch for this new policy—most notably in a letter from Chairman Grassley—defending its Constitutional duty and responsibility to oversee the executive branch.
The White House response states that, “[t]he Administration’s policy is to respect the rights of all individual Members, regardless of party affiliation, to request information about Executive Branch policies and programs.” Mr. Short also stated that the Administration would use its “best efforts” when responding to all requests.
Further, the Administration’s nominee to head the OLC, Seth Engel, also made statements regarding congressional responses and promised to review the OLC opinion.
This is good news, and could represent an end to the policy of limiting responses to congressional inquiries and oversight attempts. However, it is still unclear to what extent federal agencies will respond to congressional inquiries. As recently as a July 12th, House Transportation and Infrastructure Democrats openly complained that they were denied key documents by the General Services Administration.
POGO applauds Chairman Grassley for championing Congressional oversight rights for all Members of Congress, no matter what political affiliation. The recent statements by the White House Director of Legislative Affairs acknowledges the Constitutional roles and responsibilities of Congress. However, POGO will continue to fight for increased openness by federal agencies in order to ensure that all of Congress is able to exercise strong oversight.