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Congressional Oversight Investigations Primer

(Photos: Getty Images; Photo Illustration: Leslie Garvey / POGO)

Oversight is essential in ensuring accountability and a fair and ethical government. However, to produce a thorough and more impartial investigation, investigators should follow best practices for congressional oversight or risk their investigations being dismissed as overly partisan or a witch hunt. In June 2017, the Project On Government Oversight (POGO) published a report, Necessary and Proper: Best Practices for Congressional Investigations, highlighting the importance of strong congressional investigations and detailing the best practices. More than five years later, the best practices remain the same.

History provides many examples of when congressional investigations worked well, and why. The Senate Church Committee in the 1970s, the Joint Iran-Contra Committee in the 1980s, the Senate’s investigation into the federal response to Hurricane Katrina, and the Wall Street hearings in 2010 each identified systemic failures and wrongdoing, and they led to important and meaningful legislative fixes to prevent history from repeating itself. These successful investigations were made possible because investigators had adequate tools and resources, worked to achieve meaningful oversight rather than to take partisan potshots, had a clear legislative focus, and had support from congressional leaders from both parties to seek common ground.

Adequate Tools and Resources

Adequate tools and resources are necessary for any project to be successful, and congressional oversight investigations are no different. Robust investigations require dedicated full-time committee staff, consisting of a sufficient number of investigators, legal counsel, and other professionals who can move the investigation forward. That’s why in April 2022, POGO and the Levin Center at Wayne Law wrote to Congress to recommend reforms for better oversight including the hiring of bipartisan committee staff to maximize resources. Oversight investigations can take months and often more than a year to complete. Having staff who are able to work solely on the investigation rather than having to balance competing priorities can ensure the investigation gets the attention necessary to be successful.

To maximize resources, members of Congress and their staff should work together to formalize power-sharing between the majority and minority, including sharing investigative documents, co-authoring press releases and reports, making bipartisan decisions regarding hearing witnesses, and ensuring the minority is given a chance to challenge the assumptions being made by the majority.

Following these best practices can prevent the majority and minority from conducting competing, partisan investigations. Committees conducting oversight often issue reports summarizing their factual findings and recommendations. However, an unfortunate trend in recent years has been for the majority and the minority to issue separate reports about the same investigation. Separate reports discourage bipartisan analysis, and make the investigation appear more of a witch hunt than a serious investigation that examines systemic wrongdoing.

Instead of issuing separate reports, congressional committees should issue only one report. There is precedent for this approach. As POGO and the Levin Center noted in our April 2022 letter, “Senate committees often produce bipartisan reports that include lengthy additional or dissenting views, demonstrating the practicality of that approach for House committees.” Including opposing views within one report can help the public follow the committee’s findings, since they can better identify areas of disagreement among committee members. In addition, the public may find it harder to locate a separate report on the minority committee’s website, since those webpages are often harder to find than committee’s majority site.

Meaningful Oversight vs. Partisan Potshots

It’s essential that congressional investigators relay to the public a clear sense of purpose for the inquiry. Does the substance of the issue being looked into demonstrate an egregious abuse of power or a systemic failure that requires legislative reforms to address, or is the issue being overblown to score partisan points? If an investigation is perceived as being overly partisan and one-sided, it will be difficult to build public support for the inquiry. Without public support, an investigation will likely be viewed as invalid. Partisan and one-sided investigations are a waste of taxpayer resources, can divert attention from the need for genuine oversight, and can unnecessarily damage individuals, programs, and institutions.

The late Dr. Tom Coburn represented Oklahoma in the U.S. Senate from 2005 until he retired in 2015. Despite his reputation as a staunch conservative, he was able to forge good relationships with members across the aisle to conduct meaningful oversight. For example, as the Levin Center notes, in response to the 2008 financial crisis that cost millions of Americans their homes and jobs, Senators Coburn and the late Carl Levin (D-MI) conducted a two-year, bipartisan investigation that resulted in four hearings and a 639-page report. In a true testament to bipartisanship and best practices of congressional oversight, the investigation “included joint document requests, witness interviews, hearings, reports, and press conferences.” The investigation, including its four public hearings in April 2010, is credited with helping to build support to secure passage of the landmark Dodd-Frank Wall Street Reform and Consumer Protection Act in July 2010.

Another example of true bipartisanship in congressional oversight investigations was the U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities in the 1970s, better known as the Church Committee after its chair, Frank Church (D-ID). The Church Committee was created in response to press reports of domestic surveillance and intelligence programs. According to the U.S. Senate, the committee’s 16-month investigation produced 96 recommendations, including most notably the permanent creation of the House and Senate intelligence committees to oversee the nation’s intelligence community. In their “Portraits in Oversight,” The Levin Center notes that it was Church who asked that Senator John Tower (R-TX) be made Vice Chair. Reflecting the bipartisan nature of the committee, Tower chaired some of the hearings. It’s worth noting that a similar approach was taken by the January 6th Committee, when Vice Chair Liz Cheney (R-WY) chaired a hearing after Chair Bennie Thompson (D-MS), gave an opening statement via videoconference due to COVID-19.

These are just two examples of many that not only demonstrate how committee leaders can and should work together, but also illustrate how conducting oversight to investigate issues affecting a broad spectrum of the population, rather than to appease a party’s base, can result in lasting, meaningful improvements.

While bipartisanship is an important goal, in the modern, polarized Congress it is often difficult, if not impossible, even for the worthiest subjects. In those cases, it is even more important — frankly, essential — that the majority handle the hearings transparently and fairly, and that the investigation has a clear purpose rather than simply serving as a pretext to prove a partisan conclusion that has no bearing on policy reform.

Clear Legislative Focus

Congress plays a constitutionally essential role in overseeing the federal government and private industries. The Supreme Court has ruled that oversight is inherent to the legislative process, in that Congress can’t effectively legislate absent oversight. In other words, Congress can’t identify what new laws are needed or what changes in laws are in order without first identifying the gaps that exist, and oversight should have a legislative purpose.

Carefully defining the focus or mandate of an investigation at the outset is critical for success. Many of the best congressional investigations use fact-finding to examine significant wrongdoing or questionable actions in order to determine whether or what systemic reforms are needed. Based on the investigation’s findings, good oversight reports include legislative recommendations that address the root causes of the problem being looked into. A congressional committee that views its investigation through the lens of identifying root causes of a scandal or disaster in order to reform current problems and prevent future problems will keep the investigation properly focused.

A congressional oversight investigation should not be conducted as a science fair project in which investigators are trying to prove a hypothesis. In POGO’s Oversight Workbook, we encourage investigators to begin crafting their investigative plan using open-ended, factual questions to guide the investigation. We point out that “starting with open-ended questions will allow investigators to follow the evidence wherever it leads, rather than forcing the investigation to verify a hypothesis — which can lead to biased results.”

In addition, POGO suggests creating a list of key policy areas the investigation will touch upon. Knowing what laws and regulations are associated with these policy areas, we note, “will also help investigators later in the process, when they are brainstorming possible legislative and administrative reforms to address a systemic problem identified during the investigation.” Given that the primary goal of investigations is to produce legislation, and that both sides need to come together to pass legislation, bipartisanship at the investigatory stage is crucial to build support for legislative change.

For example, in 2015, the Senate Special Committee on Aging launched an investigation the office of Senator Susan Collins (R-ME) described as “the Senate’s first bipartisan investigation into the causes, impacts, and potential solutions to egregious price spikes of certain off-patent drugs.” By keeping their investigation clearly focused on off-patent drugs where there was no generic equivalent, the committee was able to stay fixed on one particular class of drugs and design recommendations to address the root cause of the problem. The committee’s report was issued in 2016. Following the investigation, Chair Collins and Ranking Member Claire McCaskill (D-MO) authored a bill to bolster competition among generic drug makers and to lower the cost of prescription drugs; the bill was signed into law as part of the FDA Reauthorization Act in 2017.

Leadership Support

Gaining support from congressional leadership can affect a congressional investigation’s chances of success. Leadership can be helpful in obtaining resources for investigations as well as securing floor time for legislative proposals that are drafted in response to an investigation. In addition, leadership can be helpful in preserving congressional prerogatives by putting pressure on executive branch officials and other individuals who refuse to provide documents or testimony to committees.

Furthermore, congressional leadership, especially those who belong to the same party that holds the White House, can send a strong message to their conference about the need for and benefits of conducting oversight of the administration.

In recent years, both parties have increasingly been reluctant to do oversight when it could be perceived as unfavorable to an administration of their own party. This is not only wrong, but also potentially disastrous. While it may sound counterintuitive, one of the best things congressional leaders can do for their party, if it is in the White House, is to conduct rigorous and regular oversight of the executive branch. Conducting routine oversight and highlighting potential wrongdoing or mismanagement can prevent a small problem from manifesting into a larger issue down the road. Just as it’s better to repair a cavity before a root canal is needed, it’s better to address issues in the executive branch before they become full-blown public scandals.

Conclusion

POGO has long advocated that “Congress not only has the right to conduct oversight of the executive and judicial branches — as well as of private companies and other institutions affecting the public’s welfare — but also the responsibility to do so.” Oversight can be time consuming and challenging, but following best practices can help produce better investigations and better reforms to address systemic problems.

POGO’s Congressional Oversight Initiative is available to offer additional resources and trainings on how Congress can perform one of its most important constitutional responsibilities. Since 2006, through the Congressional Oversight Initiative’s monthly training seminars, biannual oversight boot camps, and customized trainings, POGO has trained thousands of congressional staffers — Republicans and Democrats — on the best practices of oversight and investigations.