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Strengthening Checks and Balances
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Analysis

The Purse Is Mightier than the Sword. Now Congress Needs to Use It.

Attacks on Independent Oversight Show the Need for Congress to Step Up and Reclaim its Rightful Role
(Illustration: CJ Ostrosky / POGO)

It has become increasingly clear in recent years, and even more so in recent months, that Congress needs to adjust its approach to oversight if it is to act as an effective counterweight in the American system of checks and balances. And as the White House has ramped up attacks on inspectors general—the independent watchdogs overseeing federal agencies—it’s more urgent than ever for Congress to reassert its oversight authority. While overreach by the executive branch and political polarization are in part to blame for Congress’s weakened oversight role, the lion’s share of the blame lies with Congress itself. More specifically, Congress has neglected to use some of its most powerful oversight tools in the face of an expansionist executive branch. The power of the purse is the foremost of these potent powers that Congress must begin using more aggressively.

No matter how any of us feel about any particular administration or policy priority, we should all be able to agree that Congress should have the means to deliver on the will of the people.

It’s not that Congress has done nothing to try to check the executive branch recently. Congress has conducted investigations into a range of problematic incidents involving President Donald Trump and officials in his administration; held Attorney General William P. Barr in contempt of Congress for his refusal to comply with a congressional inquiry; applied sufficient public pressure to see the resignation of several Trump administration agency heads amid ethics scandals; and, most famously, the House impeached Trump on counts of abuse of power and obstruction of Congress. (Of course, the Senate then decided to acquit him.)

However, many of Congress’s efforts at oversight and accountability have largely been in vain. And Trump and his administration have seemed to grow more dismissive and contemptuous of oversight and efforts at transparency rather than being chastened by them. Take, for example, the president’s recent firing of the inspector general for the intelligence community, his signing statement accompanying the emergency stimulus CARES Act in which he made clear that his administration would not cooperate with duly enacted congressional oversight provisions of the law, and his attacks on the inspector general of the Department of Health and Human Services. And then there’s the president’s apparent campaign of retaliation against those who testified as witnesses during the House impeachment inquiry, and his administration’s continuous effort to thwart congressional subpoenas through appeals to the courts.

Historically, congressional investigations and the subpoena power that goes along with them have been powerful tools in the oversight arsenal. But whether it was the Obama administration’s recalcitrance in the face of a congressional inquiry into the “Fast and Furious” incident or the Trump administration’s virtually uniform rejection of congressional subpoenas, it has become clear that what Congress has been doing to try to demand information from the executive branch is no longer working. This has severely hindered Congress’s ability to conduct rigorous oversight of the executive branch.

With regard to the “Fast and Furious” imbroglio, then-Attorney General Eric Holder was held in contempt of Congress, and the House of Representatives had to take its complaints to the courts in order to seek redress. This case took years to resolve, only concluding last year, far too late for any meaningful oversight or accountability to materialize. As noted above, the House held Barr in contempt for a similar refusal to cooperate with a congressional inquiry, this time over a controversial plan to include a citizenship question on the 2020 census. But upon being held in contempt, Barr did nothing to comply further with the inquiry. It also bears mentioning that at nearly every turn of the House’s impeachment inquiry and associated investigations, the Trump administration flat-out refused to comply with subpoenas and even challenged Congress’s authority to conduct such an inquiry. The legal and constitutional realities that undermine the administration’s claims notwithstanding, this pattern of disdain for congressional oversight is a clear and present danger to our very system of checks and balances.

In all of these cases, Congress lost or forfeited an oversight battle with the executive branch and, as a result, the general credibility of congressional investigations and subpoenas has been dealt a series of significant blows. While Congress has held in contempt attorneys general in successive administrations, as well as other Cabinet-level officials, without carrying additional consequences the concept of a citation of contempt has lost some of its heft as a tool for oversight.

A recent proposal by Good Government Now, which is supported by the Project On Government Oversight (POGO), would reinvigorate the inherent contempt power of the House of Representatives—which is distinct from voting on largely symbolic citations of contempt—by adding more teeth to the mechanism and normalizing its use under certain conditions. The largely dormant inherent contempt power was originally designed to allow Congress to prosecute its own contempt proceedings by deploying the sergeant-at-arms to arrest an individual on the charge of contempt of Congress, whereupon that individual would undergo a trial of sorts conducted by Congress. This procedure had mostly fallen out of use by the early 20th century.

The enhanced inherent contempt power under the Good Government Now proposal would carry stringent financial penalties and a congressional adjudication process, with the aim of creating a genuine disincentive for the executive branch to ignore congressional oversight efforts. Ideas like this are important steps toward revitalizing oversight and accountability across government. After all, an impotent Congress is anathema to an accountable and effective federal government.

Importantly, Congress is not the only player in the oversight arena. Inspectors general, first created through government reform in the wake of the Watergate scandal, are indispensable drivers of oversight and accountability whose mandate is to be the eyes and ears of the American taxpayers within federal agencies. The investigations and audits these watchdogs undertake are essential to holding the federal government accountable to the people. They also deliver a fantastic return on investment: A recent report to Congress showed that for every dollar invested in an inspector general investigation, about $22 are returned to the taxpayers, making inspectors general a valuable asset to anyone concerned with fiscal prudence. Despite performing this crucial service for the American public, inspectors general are in a perpetually precarious position because the president can fire them for any reason, political or otherwise. As noted above, Trump has been particularly hostile to inspectors general recently, despite having nominated some of them personally. Dubious removals of inspectors general are not unique to Trump. In 2009, President Barack Obama indicated he was going to terminate an inspector general and did not have a particularly compelling reason to do so, prompting significant bipartisan congressional pushback.

Congress has a vital role to play now in protecting and increasing the independence of inspectors general. The combination of the pivotal oversight function they serve and their vulnerability to politically motivated removal has spurred POGO to lead a bipartisan push to call for Congress to create for-cause removal protections for inspectors general. This would add a measure of independence for inspectors general and partially insulate them from the political whims of any president. Such protections have enjoyed lawmakers’ support in the past and were even included in a bill that passed the House with broad bipartisan support in 2008, only to be nixed by the Senate. During an administration hostile to oversight and to inspectors general in particular, without for-cause removal protections inspectors general will be less likely to aggressively pursue investigations that could run afoul of the political interests of the administration. This fundamentally defeats the purpose of inspectors general and would undermine the ability of the American public to demand and receive the ethical and accountable government that we deserve.

For its part, Congress has another potent oversight tool that it has yet to use to maximum effect, especially in recent decades. This tool is the power of the purse, or the ability to direct and spend hard-earned tax dollars via the congressional appropriations process. In drafting the Constitution and setting up the government, the framers wisely chose to vest this power with Congress, the branch of government closest to and most responsive to the will of the people. Paradoxically, Congress seems loath to leverage this power in the context of efforts to conduct oversight and demand accountability of the executive branch. For example, in the current debate over the independence of inspectors general, Congress could threaten to withhold funding for key administration priorities unless Trump cooperates with attempts to oversee the executive branch.

This is not a novel idea. For example, appropriations bills have included language that would allow the Treasury Department to recover or withhold the salary of a federal official if that official prevents another government employee from responding to a congressional inquiry or request for information. This is a good use of the power of the purse, but it doesn’t go far enough. Congress could, for instance, enact automatic appropriations funding cutoffs that would be triggered by noncompliance with duly enacted oversight mechanisms or inspector general investigations—this would be a much stronger deterrent to executive branch stonewalling of congressional oversight. It would be important to tailor such an automatic defunding mechanism toward agency leadership offices, as opposed to defunding the uncooperative agency entirely. Such a robust mechanism that would hit the relevant agency where it hurts may give congressional oversight tools the punch they need to be truly effective.

Whether by beefing up the inherent contempt power, safeguarding the independence and integrity of inspectors general, using the power of the purse more often and more aggressively, or any other steps to bolster oversight and accountability, Congress needs to stiffen its institutional backbone and stand up for its role as the primary check on the executive branch. Without an effective and active legislative branch that is empowered to conduct meaningful oversight and deliver genuine accountability in the face of corruption, incompetence, and malfeasance, the uniquely American system of ordered liberty preserved by the rule of law and separation of powers is in jeopardy.

No matter how any of us feel about any particular administration or policy priority, we should all be able to agree that Congress should have the means to deliver on the will of the people. In order to do so, Congress must be able to conduct oversight. Ultimately, this is a matter of faithfulness to the Constitution and to the American people, not to the whims of any one president.