A Constitutional Obligation: Congressional Oversight of the Executive Branch

Quite as important as legislation is vigilant oversight of administration.” –Woodrow Wilson in 1885

WASHINGTON D.C. – Rep. Darrell Issa, the Ranking Member of the Oversight and Government Reform Committee, released a report today entitled:  “A Constitutional Obligation:  Congressional Oversight of the Executive Branch detailing how “the vast expansion of the power and reach of the Executive Branch of government under both Republican and Democratic administrations has only increased the need for vigorous, unflinching Congressional oversight.”

“The unparalleled encroachment of the federal government in the private sector and the lives of individual Americans that began during the Bush Administration and continues in the Obama Administration (see, for example, the Troubled Assets Protection Program, the American Recovery and Reinvestment Act, the rapid growth of the federal workforce, and the health care and financial overhauls) has led to concerns of an oncoming tsunami of opacity, waste, fraud, and abuse,” the report says.  “This trend must be met by vigorous Congressional oversight of the massive federal bureaucracy.”

“Congress’ chief watchdog committee requested 61 percent less information in the first year of the 111^th Congress than it did in the 110^th,” the report reveals.  “The Committee held 21 percent fewer hearings, and the subjects of those hearings were too often far outside the most pressing issues facing the American people…Only four years ago Democrats lamented a lack of congressional oversight under one-party rule.  But today, at a time of unprecedented expenditures and growth in the federal workforce and its presence in Americans’ lives, with all the potential for fraud, waste, and abuse such growth carries with it, the Democratic-controlled Congress has consciously abdicated its Constitutional responsibility to provide oversight of the Executive Branch.”

What Congressional Democrats Said About Oversight of the Executive Branch

In the year leading up to the 2006 midterm elections, Ranking Member Waxman intensified his attacks on the Republican Majority for what he considered their negligent oversight of the Bush Administration.  In January 2006, his staff issued a report stating the following:

[T]he Republican-controlled Congress has failed to meet this constitutional oversight responsibility.  On issue after issue, the Congress has failed to conduct meaningful investigations of significant allegations of wrongdoing by the Bush Administration.… [A] large “accountability gap” has emerged.  Despite repeated requests by Democratic members and news reports raising allegations of serious misconduct, the Congress has failed to convene hearings, issue subpoenas, and take the other steps necessary to fulfill its constitutional oversight role.

When the Democrats regained Congress in the 2006 elections, Rep. Waxman became Chairman, and the Congressional obligation to conduct vigorous oversight of the Executive Branch became a central priority of Congressional Democrats.  In February 2007, Chairman Waxman told The New York Times that “There has been no cop on the beat.  And when there is no cop on the beat, criminals are more willing to engage in crimes.”  Without constant Congressional oversight, Chairman Waxman said, “the bad actors feel they can get away with anything.”

Six months after becoming Speaker of the House, Rep. Nancy Pelosi explained to a group of progressive bloggers how the new Democratic Majority was reinstating Congressional oversight:

They [the Bush Administration] had been going for six and a half years with no oversight, just absolutely zero accountability. And when people talk about this Congress, they have to recognize that there’s a big distinction between this Congress and previous Congresses in terms of shedding the light of oversight and accountability on this administration.

Then-House Democratic Caucus Chairman and current White House Chief of Staff Rahm Emanuel also sounded the need for an uncompromising Oversight Committee, stating that “We want to be the party that is ferreting out waste and fraud, and Henry’s [Waxman’s] committee is the point of the spear for us.”

As of August 2010, the Republican members of the Oversight Committee had sent 46 letters to the Democratic Chairman of the Committee or its Subcommittee Chairs requesting hearings, additional witnesses at hearings, or subpoenas of important documents related to significant investigations.  Formal responses were received for only six of those requests.  Hearings requested by the Republican Minority but ignored by the Democratic Majority include:

• Food Safety – In 2009, following a salmonella outbreak in a Georgia peanut plant that led to at least 8 deaths and more than 500 illnesses, Ranking Member Issa sent a letter to Chairman Towns requesting a hearing on the federal food safety bureaucracy, citing a GAO report that identified 15 different federal agencies responsible for administering 30 food safety-related laws and noting that “our Committee is uniquely positioned to look at the coordination and cooperation amongst departments and agencies.”  No response to the request was received, and nothing was done to hold the federal agencies accountable.

• Homeland Security – During the 107^th, 108^th, and 109^th Congresses, the Committee’s Republican Majority conducted 35 hearings on homeland security matters.  Among other things, these addressed terrorism and cross-agency information sharing, as well as the formation and oversight of the Department of Homeland Security.  Oversight of Homeland Security has been badly neglected over the past two years.

• Fannie Mae and Freddie Mac – Despite the role Fannie and Freddie played in the financial crisis and the huge financial stakes for the American taxpayer involved in continuing to prop up these organizations…Oversight Committee Republicans requested a public hearing on Fannie and Freddie but received no response from the Majority.

• Healthcare Reform Oversight – Attorney General Eric Holder has said himself that every year American taxpayers lose “tens of billions of dollars in Medicare and Medicaid funds to fraud.”  With government’s increased role in healthcare under the Obama reform, this number is all but certain to increase…Under Democrats, the Oversight Committee refused to investigate waste, fraud, and abuse in government run healthcare and also decided to waive its jurisdiction when the new healthcare reform law came through Congress and refused to hold even a single hearing or mark-up on the legislation.

• Wasteful Stimulus Spending – The Republican Minority has provided the Democratic Majority with evidence of government agencies wasting stimulus funds on projects of dubious merit that appear to contradict the Administration’s stated goals for stimulus-worthy projects and that therefore are ripe for oversight…The Minority has not yet received a reply from the Chairman.

• Minerals Management Service – The last time Republicans had subpoena power was in 2006, where as a subcommittee Chairman, Ranking Member Issa used it to compel the testimony of oil executives and expose cozy relationship with the Minerals Management Service (MMS)…it wasn’t until after the April 20, 2010,Deepwater Horizon oil spill that Oversight Committee Democrats agreed to hold a hearing about the troubles of MMS.

• School Choice – The D.C. Opportunity Scholarship Program (OSP) was launched by Congress in 2004, with bipartisan support, to give economically disadvantaged District of Columbia children the chance for a quality education outside of public school classrooms plagued by problems…The Republican Minority has requested a full Committee hearing to examine this program, but did not receive a response.

Following are examples, in addition to those discussed in the previous section on Minority-requested hearings, of issues in need of Congressional oversight that were the focus of vigorous attention by the Republican Minority in the 111^th Congress but were largely or entirely neglected by the Democratic Majority:

• Federal Emergency Management – The inadequate response by the federal government to the Deepwater Horizon oil spill is evidence that 5 years after Hurricane Katrina, government agencies are no more effective now than they were then in dealing with large scale disasters…The Oversight Committee is uniquely able to address cross-agency and cross-government activities, yet has done little to oversee efforts to implement lessons learned from previous disasters or to propose reforms.

• Protecting the Independence of Inspectors General – Oversight Republicans investigated and produced reports on the removal of two Inspector General: the IG for the Corporation for National and Community Service and the IG for Amtrak.  In both cases there was strong evidence that the IGs were removed for highly improper reasons.  Inspector Generals must have independence and must know that investigating waste and mismanagement isn’t going to cost them their jobs.  There are supposed to be 74 IGs, but right now there are 11 vacant positions including the Departments of State and Interior where there hasn’t even been nominations.  IGs are critical allies for oversight in Congress and the Oversight Committee needs to examine what can be done to better protect their independence, their ability to look for waste and abuse in federal agencies, and to make sure vacancies are filled in a timely manner.

• Federal IT Systems – Technology can make government more efficient, transparent, and interactive with citizens…Far too often, federal investments for IT improvements have run way over budget, or in the worst of scenarios, fail to meet any projected goals… In the 111^th Congress, the Committee has not devoted sufficient time to oversight and reform efforts in this costly and critical area.

• Federal Financial Management – Addressing the real issue behind the government’s fiscal woes – irresponsible,  runaway spending – is daunting enough, but adding fuel to the fire is the widely acknowledged fact that the federal government cannot even track its own spending well enough to give a verifiable accounting of how taxpayer’s money is being spent.  In 2009, for the 13th straight year, GAO found that the federal government’s consolidated financial statements were not auditable due to persistent financial management problems, including the government’s inability to account for interagency funding activity and other ineffective systems, processes, and internal controls at federal agencies.

• TARP Oversight – While the efforts of the Minority have pulled back the curtain on some aspects of high-profile bailouts, the refusal of the Majority to assist on numerous requests have left many questions unanswered.

• Failures at the SEC – Despite a budget that nearly tripled between 2000 and 2010, the SEC has not lived up to its watchdog responsibilities.  The scandals involving Bernie Madoff, Enron, WorldCom, and others during the past decade were not detected by SEC investigators but by journalists, whistleblowers and others.  In many cases the SEC had the information it needed to frauds years earlier but failed to put the pieces together until after the wrongdoing had already been uncovered.

• Stimulus Oversight – Since the stimulus was designed to spend taxpayer dollars quickly, there are also significant concerns that waste, fraud, and abuse is going undetected.  The failure of the stimulus to reduce unemployment is perhaps the most significant concern of many Americans who have been hit hardest by the recession.

• Countrywide – As part of its ongoing investigations into the causes of the financial crisis, Committee Republicans exposed large quantities of previously unknown details about Countrywide Financial Corporation’s “Friends of Angelo” program, which provided sweetheart mortgages to so-called “VIPs” as part of its larger investigation of influence peddling by Fannie Mae, Freddie Mac and other companies involved in affordable mortgage lending.  At the same time that Fannie-Freddie executives were accepting Countrywide VIP loans, The New York Times has reported about “how assiduously Fannie pursued Mr. Mozilo and 14 of his lieutenants to make sure the company continued to shovel loans its way.”

• Presidential Records Act – To ensure compliance with both the Presidential Records Act and the Hatch Act, the Committee needs to conduct oversight to monitor the technology associated with the White House E-mail archiving system and the maintenance of private e-mail accounts by White House staff.  This effort actually began under Democrats.  Former Chairman Henry Waxman’s oversight of the White House’s use of e-mail became an issue of bipartisan concern – not the political aspect of it, but the fact that there was a clear failure of government and waste of taxpayer dollars.  In the 111th Congress, the Majority has not continued critical oversight initiatives in this area despite the repeated urgings of the Minority.

• Federal Agency Performance Management – As the main oversight body in the House of Representatives, the Committee has an obligation to hold federal agencies accountable for performance.  While federal agency funding has increased tremendously, attention to agency performance under GPRA and other performance legislation and possible reforms of performance legislation, such as requiring outcome-based performance goals, has received short shrift in the 111^th Congress.

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