Congressional Oversight Manual
Changes from December 22, 2022 to March 27, 2026
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Congressional Oversight Manual
December 22, 2022
Congress’s lawmaking role does not end when it passes legislation. Oversight is fundamental to
make sure that laws are working as intended and are being administered in an effective, efficient,
Ben Wilhelm, Coordinator
and economical manner. The information that oversight can bring to Congress is essential as the
Analyst in Government
body grapples with the complexities of American government and society.
Organization and
Management
A fundamental objective of the Congressional Oversight Manual is to assist Members,
committees, and legislative staff in carrying out this vital legislative function. It is intended to
Todd Garvey, Coordinator
provide a broad overview of the procedural, legal, and practical issues that are likely to arise as
Legislative Attorney
Congress conducts oversight. This includes information on the mechanics of oversight practice
based on House and Senate rules, common investigative techniques, and an inventory of statutes
that impact oversight activity. In addition, the Manual discusses important legal principles that
Christopher M. Davis,
have developed around Congress’s oversight practice. The Manual is organized both to address
Coordinator
specific questions and to support those seeking a general introduction to or broader understanding
Analyst on Congress and
of oversight practice.
the Legislative Process
CRS first developed the Congressional Oversight Manual more than four decades ago following
a December 1978 Workshop on Congressional Oversight and Investigations. The workshop was
organized by a group of House and Senate committee aides from both parties and CRS at the
request of the bipartisan House leadership. CRS produced the Manual with the assistance initially of a number of House
committee staffers. In subsequent years, CRS has sponsored and conducted various oversight seminars for House and Senate
staff and updated the Manual periodically.
Over the years, CRS has assisted many Members, committees, party leaders, and staff aides in the performance of the
oversight function: providing consultative support on matters ranging from routine oversight and basic information gathering
to the most complex and highest profile investigations conducted by Congress. Given the size and scope of the modern
executive establishment, Congress’s oversight role may be even more significant—and more demanding—than when
Woodrow Wilson wrote in his classic Congressional Government (1885): “Quite as important as lawmaking is vigilant
oversight of administration.”
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Contents
Introduction to Congressional Oversight and the Oversight Manual .............................................. 1
The Oversight Manual .............................................................................................................. 1
How to Use This Manual .......................................................................................................... 1
Defining Oversight .................................................................................................................... 2
The Oversight Toolbox ....................................................................................................... 3
Police Patrols and Fire Alarms ............................................................................................ 3
The Purposes of Oversight ........................................................................................................ 4
Congress as an Oversight Body ....................................................................................................... 8
Authority to Conduct Oversight ................................................................................................ 8
Constitutional Provisions .................................................................................................... 9
Statutes and Oversight ...................................................................................................... 10
House and Senate Rules on Oversight .............................................................................. 10
Congressional Participants in Oversight ........................................................................... 14
Oversight Coordination ........................................................................................................... 17
General Techniques of Encouraging Oversight Coordination .......................................... 17
The Oversight Process in Congress ......................................................................................... 18
Question 1: Which Issues Warrant Oversight? ................................................................. 18
Question 2: How to Get the Desired Information? ........................................................... 19
Question 3: What Can Be Done with This Information? .................................................. 20
Oversight Through Legislative and Investigative Processes ................................................... 21
Investigative Oversight .................................................................................................................. 27
Historical Background ............................................................................................................ 27
Constitutional Authority to Conduct Oversight and Investigative Inquiries ........................... 29
The Constitutional Scope of the Investigative Power: Legislative Purpose ..................... 31
Legislative Purpose and Investigations Involving the President ....................................... 34
Authority of Congressional Committees ................................................................................. 36
Jurisdiction ........................................................................................................................ 37
Committee Rules ............................................................................................................... 39
Legal Tools Available for Oversight and Investigations ......................................................... 39
Hearings ............................................................................................................................ 40
Deposition Authority ......................................................................................................... 41
The Subpoena Power ............................................................................................................... 43
Responding to Non-Compliance: Subpoena Enforcement ............................................... 45
Criminal Provisions Protecting the Investigative Power ......................................................... 53
Limitations on Congressional Authority ................................................................................. 54
Constitutional Limitations ................................................................................................ 54
Common-Law Privileges .................................................................................................. 59
Executive Privilege ........................................................................................................... 62
Statutory Limits on Congressional Access to Information ............................................... 67
Classified Material ............................................................................................................ 68
Individual Member Authority to Conduct Oversight and Investigations ................................ 71
Specialized Investigations ....................................................................................................... 73
Selected Oversight Techniques ...................................................................................................... 76
Identifying Relevant Committee Jurisdiction ......................................................................... 76
Orientation and Periodic Review Hearings with Agencies ..................................................... 76
Casework ................................................................................................................................. 77
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Performance Audits by Inspectors General and GAO............................................................. 78
Monitoring the Federal Register ............................................................................................. 79
Monitoring the Unified Agenda ............................................................................................... 80
Special Studies and Investigations by Staff, Support Agencies, and Others ........................... 80
Communicating with the Media .............................................................................................. 81
Press Gallery Offices ........................................................................................................ 81
Resolutions of Inquiry ............................................................................................................. 82
Limitations and Riders on Appropriations .............................................................................. 83
Legislative Veto and Advance Notice ..................................................................................... 84
Independent Counsel ............................................................................................................... 86
Reporting, Testimony, Notice, and Consultation, Requirements ............................................ 87
Reporting Requirements ................................................................................................... 87
Testimony Requirements .................................................................................................. 88
Notice and Prior Consultation ........................................................................................... 89
Statutory Oversight Enablers ......................................................................................................... 89
Direct Expansions of Congress’s Oversight Authority ........................................................... 89
Indirect Expansions of Congress’s Oversight Capabilities ..................................................... 93
Statutory Offices of Inspector General .................................................................................... 96
Inspector General Act of 1978 .......................................................................................... 96
Purpose and Role .............................................................................................................. 97
Types and Categories ........................................................................................................ 98
Authorities and Responsibilities ....................................................................................... 98
Oversight Information Sources and Consultant Services ............................................................ 102
Congressional Research Service ........................................................................................... 102
Congressional Budget Office ................................................................................................ 103
Government Accountability Office ....................................................................................... 104
Offices of Senate Legal Counsel and House General Counsel ............................................. 105
Senate Legal Counsel ...................................................................................................... 105
House General Counsel................................................................................................... 106
Office of Management and Budget ....................................................................................... 107
Budget Information ............................................................................................................... 109
Nonfederal Information Resources ........................................................................................ 111
Tables
Table 1. Special Investigative Authorities Explicitly Provided to Selected Investigating
Committees................................................................................................................................. 74
Table 2. Press Gallery Names and Websites .................................................................................. 81
Appendixes
Appendix A. Illustrative Subpoena ............................................................................................... 113
Appendix B. Example Congressional Oversight Letter .............................................................. 120
Appendix C. Examples of White House Response to Congressional Requests .......................... 123
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Contacts
Author Information ...................................................................................................................... 126
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Introduction to Congressional Oversight and the
Oversight Manual
Updated March 27, 2026 (RL30240) Jump to Main Text of Report
oversight as the as the“"review, monitoring, and supervision of the executive and the implementation of review, monitoring, and supervision of the executive and the implementation of
public policy.public policy.”1"1 This definition captures the functional core of Congress This definition captures the functional core of Congress’'s oversight of the s oversight of the
executive branch. Nonethelessexecutive branch. Nonetheless, it is the beginning, rather than an end, of understanding oversight it is the beginning, rather than an end, of understanding oversight
as it has been practiced since the First Congress. As outlined in this manual, the purposes, as it has been practiced since the First Congress. As outlined in this manual, the purposes,
practice, and tools of congressional oversight extend far beyond the confines of a simple practice, and tools of congressional oversight extend far beyond the confines of a simple
definition.definition.
The Oversight Manual
CRS has published the CRS has published the Congressional Oversight Manual since 1978. In that time, it has been one since 1978. In that time, it has been one
of the most comprehensive resources for information on congressional oversight and benefited of the most comprehensive resources for information on congressional oversight and benefited
from the experience and knowledge of dozens of CRS expertsfrom the experience and knowledge of dozens of CRS experts and attorneys. Since it was first published, the . Since it was first published, the
work of Congress and the resources available to conduct oversight have significantly changed. work of Congress and the resources available to conduct oversight have significantly changed.
For instance, the spread of interconnected information technology systems and the development For instance, the spread of interconnected information technology systems and the development
of the internet allow for more rapid and wide-scale collection and preservation of information of the internet allow for more rapid and wide-scale collection and preservation of information
about the activities of the government and have significantly increased the availability of that data about the activities of the government and have significantly increased the availability of that data
to both the public and Congress. In addition, Congress has developed a wide array of to both the public and Congress. In addition, Congress has developed a wide array of
management, oversight, and transparency laws that facilitate oversight, create internal controls management, oversight, and transparency laws that facilitate oversight, create internal controls
within the executive branch, and bring more government data to the public eye.within the executive branch, and bring more government data to the public eye.2
CRS’2
CRS's primary goal with the s primary goal with the Oversight Manual is to provide an overview of oversight practice is to provide an overview of oversight practice
that is useful to congressional stakeholders with that is useful to congressional stakeholders withvaryingvarious levels of experience. For those new to the Hill, the experience. For those new to the Hill, the
Oversight Manual serves as a broad introduction to the rules and techniques of effective oversight serves as a broad introduction to the rules and techniques of effective oversight
and the array of options available to Congress and its Members. For more experienced hands, theand the array of options available to Congress and its Members. For more experienced hands, the
Oversight Manual’'s broad coverage should make it a useful desk reference for existing oversight s broad coverage should make it a useful desk reference for existing oversight
techniques and recent developments on relevant issues.techniques and recent developments on relevant issues.
How to Use This Manual
The The Oversight Manual is intended to be a guidebook for congressional oversight. To that end is intended to be a guidebook for congressional oversight. To that end,
while it is designed to allow for cover-to-cover reading, CRS understands that many readers will
be looking for specific information relevant to particular oversight activity. Therefore, CRS has , CRS has
organized the organized the Oversight Manual in a manner that will allow for easy navigation from the table of for easy navigation from the table of
contents.contents.
A large share of the A large share of the Oversight Manual is devoted to a technical discussion of the legal and is devoted to a technical discussion of the legal and
procedural parameters of Congressprocedural parameters of Congress’'s oversight activities and a survey of certain well-established s oversight activities and a survey of certain well-established
1 U.S. Congress, Joint Committee on the Organization of Congress, Organization of Congress: Final Report,
committee print, 103rd Cong., 1st sess., December 1993, S.Rept. 103-215; H.Rept. 103-413 (Washington: GPO, 1993),
p. 150. CRS has used an expanded version of this definition: “Congressional oversight refers to the review, monitoring,
and supervision of federal agencies, programs, activities, and policy implementation.” See, for example, CRS Report
97-936, Congressional Oversight by L. Elaine Halchin and Frederick M. Kaiser (2012, available to congressional
requestors on request).
2 See “Statutory Oversight Enablers” section below.
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techniques and tools. The initial sections provide a more general discussion of oversight, techniques and tools. The initial sections provide a more general discussion of oversight,
including its purposes and a high-level review of the oversight process.including its purposes and a high-level review of the oversight process.
This manual covers a wide variety of topics related to oversight, although it may not discuss This manual covers a wide variety of topics related to oversight, although it may not discuss
every potential oversight issue or provide a precise answer to every question. This is particularly every potential oversight issue or provide a precise answer to every question. This is particularly
true when it comes to two topics that receive frequent attention. The first is what might be true when it comes to two topics that receive frequent attention. The first is what might be
thought of as the thought of as the“art”"art" of oversight, of oversight,3 including decisions such as3 including the selection of oversight the selection of oversight
priorities and strategies. Such decisions turn, in large part, upon the expert judgment of Members priorities and strategies. Such decisions turn, in large part, upon the expert judgment of Members
and committees as to how their time and other resources would be best spent.and committees as to how their time and other resources would be best spent.
The second subject involves potential ways to adjust the laws and chamber rules governing The second subject involves potential ways to adjust the laws and chamber rules governing
oversight. The oversight. The Oversight Manual focuses on current oversight practices. CRS experts focuses on current oversight practices. CRS experts and attorneys are are
available to answer specific questions related to any aspect of oversight, to support specific available to answer specific questions related to any aspect of oversight, to support specific
oversight activities, and to discuss potential adjustments to the rules and practices that enable oversight activities, and to discuss potential adjustments to the rules and practices that enable
oversight.oversight.
Defining Oversight
Oversight is an activity that can be defined in many different ways. For instance, CRS has defined Oversight is an activity that can be defined in many different ways. For instance, CRS has defined
congressional oversight as the review, monitoring, and supervision of federal agencies, programs, as the review, monitoring, and supervision of federal agencies, programs,
activities, and policy implementation.4
Along similar lines, the Legislative Reorganization Act of 1946 directed that standing committees
shall exercise continuous watchfulness of the execution by the administrative agencies
concerned of any laws, the subject matter of which is within the jurisdiction of such
activities, and policy implementation.4 This definition encompasses a wide variety of potential legislative activities and does not restrict the oversight function to particular purposes, goals, or strategies.
Congress by the agencies in the executive branch of the Government.Congress by the agencies in the executive branch of the Government.5
5
This language could be taken to support a This language could be taken to support a more formalist approach tonarrower view of what constitutes oversight that was common oversight that was common
during that era.during that era.66 Today many observers would likely find this definition of Today many observers would likely find this definition of oversightoversight too limiting too limiting
given the development of newgiven the development of new oversight channels such as offices of inspector general, increased
online transparency, and real-time reporting on government activity. channels for government information and public interest in accountability for public officials and agencies.7 Therefore, a slightly broader Therefore, a slightly broader
definition, such as the one offered by definition, such as the one offered bythe political scientist Joel D. Aberbach, might better reflect political scientist Joel D. Aberbach, might better reflect
the modern understanding of the activities that make up congressional oversight. Aberbach the modern understanding of the activities that make up congressional oversight. Aberbach
defines oversight asdefines oversight as
congressional review of the actions of federal departments, agencies, and commissions and congressional review of the actions of federal departments, agencies, and commissions and
of the programs and polices they administer, including review during program and policy of the programs and polices they administer, including review during program and policy
implementation as well as after the fact.implementation as well as after the fact.7
8
The next two parts of this section introduce two additional frameworks that readers may find The next two parts of this section introduce two additional frameworks that readers may find
useful when thinking about the variety of oversight techniques and strategies available to useful when thinking about the variety of oversight techniques and strategies available to
Congress.
3 For a report on oversight that engages with some of these issues, see Project on Government Oversight, The Art of
Congressional Oversight (Washington, DC: Project on Government Oversight, 2015), https://docs.pogo.org/
publication/2015/POGO_The-Art-of-Congressional-Oversight-Handbook.pdf.
4 See CRS Report 97-936, Congressional Oversight by L. Elaine Halchin and Frederick M. Kaiser (2012, available to
congressional requestors on request).
5 60 Stat. 832, §136).
6 Joseph P. Harris, Congressional Control of Administration (Garden City, NY: Anchor Books, 1964), p. 9.
7 Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight (Washington, DC: Brookings
Institution, 1990), p. 218.
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Congress. The Oversight Toolbox
Much of the organization of the Much of the organization of the Congressional Oversight Manual is based on the idea that is based on the idea that
congressional oversight is a collection of tools and congressional oversight is a collection of tools andtechniquesstrategies that allow Congress to monitor the that allow Congress to monitor the
executive branch and gather information on its activities. This instrumental approach may make it executive branch and gather information on its activities. This instrumental approach may make it
particularly useful for particularly useful foroversight practitioners tasked with identifying potential issues identifying potential issues for oversight and and
developing and executing effective developing and executing effectiveoversight strategies.
The goals of oversight are usually built around eitherstrategies for that oversight. In addition, while the Manual is oriented toward executive branch oversight, its lessons are also generally applicable to Congress's oversight of other actors, including the judicial branch and private sector entities.
For most practitioners, oversight is usually oriented to successfully investigating a specific issue or successfully investigating a specific issue or
creating a general environment of accountability and transparency creating a general environment of accountability and transparencybetweenamong Congress Congress and, the the
executive branchexecutive branch, and, ultimately, the public. Depending on the situation, it may be possible to achieve these goals through a . Depending on the situation, it may be possible to achieve these goals through a
variety of strategies, and their selection can be thought of as picking the best tool for the job.variety of strategies, and their selection can be thought of as picking the best tool for the job.
Police Patrols and Fire Alarms
Writing in 1984, Writing in 1984, the political scientists Mathew McCubbins and Thomas Schwartz proposed a political scientists Mathew McCubbins and Thomas Schwartz proposed a
model for organizing congressional oversight activities that remains a useful tool for model for organizing congressional oversight activities that remains a useful tool for
understanding oversightunderstanding oversight.8 as a practice.9 In their article, the authors define two broad categories of congressional In their article, the authors define two broad categories of congressional
oversight: oversight:“"police patrolspolice patrols”" and and “"fire alarms.fire alarms.”
"
Police patrol oversight occurs when Congress, on its own initiative, Police patrol oversight occurs when Congress, on its own initiative, “"examines a sample of examines a sample of
executive-agency activities, with the aim of detecting and remedying any violations of legislative executive-agency activities, with the aim of detecting and remedying any violations of legislative
goals and, by its surveillance, discouraging such violations.goals and, by its surveillance, discouraging such violations.”9"10 This strategy involves regular and This strategy involves regular and
general oversight activity by Congress and is consistent with a classic understanding of legislative general oversight activity by Congress and is consistent with a classic understanding of legislative
oversight being conducted directly by committees and Members. One example of this type of oversight being conducted directly by committees and Members. One example of this type of
oversight is the agency budget hearings held on an annual basis by the appropriations oversight is the agency budget hearings held on an annual basis by the appropriations
subcommittees in both houses. Those hearings provide committee members an opportunity to subcommittees in both houses. Those hearings provide committee members an opportunity to
question leaders about the performance of their agencies, plans for the future, and specific issues question leaders about the performance of their agencies, plans for the future, and specific issues
of concern.of concern.
Fire alarm oversight, on the other hand, occurs when Fire alarm oversight, on the other hand, occurs when “"Congress establishes a system of rules, Congress establishes a system of rules,
procedures, and informal practices that enable individual citizens and organized interest groups to procedures, and informal practices that enable individual citizens and organized interest groups to
examine administrative decisions, to charge executive agencies with violating congressional examine administrative decisions, to charge executive agencies with violating congressional
goals, and to seek remedies from agencies, courts, and Congress itself.goals, and to seek remedies from agencies, courts, and Congress itself.”10"11 Fire alarm oversight Fire alarm oversight
creates a system that fosters transparency and uses other stakeholders and experts to monitor creates a system that fosters transparency and uses other stakeholders and experts to monitor
more activities with greater depth than Congress could on its own. When potential problems are more activities with greater depth than Congress could on its own. When potential problems are
identified, the expectation is that Congress will be better able to respond by focusing attention on identified, the expectation is that Congress will be better able to respond by focusing attention on
known issues and working from expert analysis that has already been conducted.known issues and working from expert analysis that has already been conducted.
A relatively recent example of the role fire alarms can play in congressional
An example of fire-alarm oversight is the oversight is the
2014 response to response tothe 2014 disclosure of significant wait times for care in some Veterans Health disclosure of significant wait times for care in some Veterans Health
Administration facilities and the deaths of veterans waiting for care on those lists. Media outletsAdministration facilities and the deaths of veterans waiting for care on those lists. Media outlets,
including CNN,11 (including CNN12) as well as the Department of Veterans Affairs Office of Inspector General as well as the Department of Veterans Affairs Office of Inspector General
reported on these issues.reported on these issues.1213 Once Congress was aware of the severity of the issues Once Congress was aware of the severity of the issues with the
8 Mathew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked: Police Patrols and Fire
Alarms,” American Journal of Political Science, vol. 28, no. 1 (February 1984), pp. 165-179.
9 McCubbins and Schwartz, “Congressional Oversight Overlooked,” p. 166.
10 McCubbins and Schwartz, “Congressional Oversight Overlooked,” p. 166.
11 See CNN, “VA Hospital Investigation,” https://www.cnn.com/specials/us/va-hospitals.
12 See Department of Veterans Affairs Office of Inspector General, Veterans’s Health Administration: Review of
Alleged Patient Deaths, Patient Wait Times, and Scheduling Practices at the Phoenix VA Health Care System, 14-
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Veterans Health Administration, Members responded with broad, bipartisan investigations into , Members responded with broad, bipartisan investigations into
the agencythe agency’'s performance and passed legislation seeking to address key findings.s performance and passed legislation seeking to address key findings.13
14 The Purposes of Oversight
of the Executive Branch Congress has engaged in oversight throughout its history. Investigating how the executive branch Congress has engaged in oversight throughout its history. Investigating how the executive branch
enforces laws, spends appropriations, and implements policies enables Congress to assess enforces laws, spends appropriations, and implements policies enables Congress to assess
whether federal agencies and departments are operating in an effective, efficient, and economical whether federal agencies and departments are operating in an effective, efficient, and economical
manner and to gather information that may inform legislation. The expansion of the national manner and to gather information that may inform legislation. The expansion of the national
government and bureaucracy has only increased Congressgovernment and bureaucracy has only increased Congress’'s need for and use of oversight to s need for and use of oversight to
check on and check the executive.check on and check the executive.14 This “checking”15 This "checking" function serves to protect Congress function serves to protect Congress’s
's policymaking role and its place under Article I in the U.S. constitutional system of checks and policymaking role and its place under Article I in the U.S. constitutional system of checks and
balances.balances.
St. Clair’'s Defeat: The First Congressional Investigation of the Executive Branch
On November 4, 1791, a coalition of local American Indian tribes defeated a U.S. military contingent under the On November 4, 1791, a coalition of local American Indian tribes defeated a U.S. military contingent under the
command of General Arthur St. Clair (who was also the governor of the Northwest Territory) in battle near what command of General Arthur St. Clair (who was also the governor of the Northwest Territory) in battle near what
is now the Ohio-Indiana border. This battle, commonly referred to as St. Clairis now the Ohio-Indiana border. This battle, commonly referred to as St. Clair’'s Defeat, was the subject of what is s Defeat, was the subject of what is
generally considered to be the first formal investigation by Congress.generally considered to be the first formal investigation by Congress.
The House of Representatives of the Second Congress established a special committee to investigate the battle. The House of Representatives of the Second Congress established a special committee to investigate the battle.
The committee requested not only that General St. Clair and Secretary of War Henry Knox testify but also that The committee requested not only that General St. Clair and Secretary of War Henry Knox testify but also that
the Washington Administration produce documents related to the incident. Only a few years removed from the the Washington Administration produce documents related to the incident. Only a few years removed from the
debates of the Constitutional Convention and aware of the precedent-setting role of his Administration, President debates of the Constitutional Convention and aware of the precedent-setting role of his Administration, President
Washington and his Cabinet (which included, among others, Thomas Jefferson and Alexander Hamilton) Washington and his Cabinet (which included, among others, Thomas Jefferson and Alexander Hamilton)careful y
carefully considered the appropriate response to the Houseconsidered the appropriate response to the House’'s request. As recorded by Jefferson in his notes, Washington s request. As recorded by Jefferson in his notes, Washington
concluded that the executive branch should concluded that the executive branch should“"communicate such papers as the public good would permit and communicate such papers as the public good would permit and
ought to refuse those the disclosure of which would injure the public.ought to refuse those the disclosure of which would injure the public.”" Washington then decided that, in the case Washington then decided that, in the case
of St. Clairof St. Clair’'s Defeat, cooperation with Congress was appropriate.s Defeat, cooperation with Congress was appropriate.
In addition to being the first major oversight investigation by Congress, this
This case established two important case established two important
precedents that continue to shape the relationship between Congress and the presidency to this day. First is the precedents that continue to shape the relationship between Congress and the presidency to this day. First is the
assumption that compliance with congressional request should be the default for presidential Administrations. assumption that compliance with congressional request should be the default for presidential Administrations.
Second is the argument that the President may decline to provide certain information in some circumstances if Second is the argument that the President may decline to provide certain information in some circumstances if
doing so would be in the public interest. The second point is directly related to the ongoing debate about the doing so would be in the public interest. The second point is directly related to the ongoing debate about the
scope and nature of executive privilege.
Sources: Louis Fisher, The Politics of Executive Privilege (Durham, NC: Carolina Academic Press, 2004), pp. 10-11;
and Thomas Jefferson, The Writings of Thomas Jefferson, vol. 1, edited by Richard H. Johnston, Albert E. Bergh, and
Andrew A. Lipscomb (Washington, DC: Thomas Jefferson Memorial Association, 1903), pp. 303-305.
Congress’scope and nature of executive privilege.16
Congress's oversight role is also significant because it shines the spotlight of public attention on s oversight role is also significant because it shines the spotlight of public attention on
critical issues, which helps both lawmakers and the general public to make informed judgments critical issues, which helps both lawmakers and the general public to make informed judgments
about executive performance. Woodrow Wilson, in his classic 1885 study about executive performance. Woodrow Wilson, in his classic 1885 study Congressional
Government, emphasized that the , emphasized that the“"informing function informing function of Congress should be preferred even to its should be preferred even to its
[lawmaking]legislative function. function.”" He added that unless Congress conducts oversight of administrative He added that unless Congress conducts oversight of administrative
02603-267, August 26, 2014.
13 See CRS Report R43704, Veterans Access, Choice, and Accountability Act of 2014 (H.R. 3230; P.L. 113-146), by
Sidath Viranga Panangala et al.
14 See, for example, letter from Sen. Charles Grassley to President Donald Trump, June 7, 2017,
https://www.judiciary.senate.gov/imo/media/doc/2017-06-07%20CEG%20to%20DJT%20(oversight%20requests).pdf.
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activities, the “activities, the "country must remain in embarrassing, crippling ignorance of the very affairs country must remain in embarrassing, crippling ignorance of the very affairs
which it is most important it should understand and direct.which it is most important it should understand and direct.”15
"17
Oversight occurs in virtually all the activities of Congress and its Members and through a wide Oversight occurs in virtually all the activities of Congress and its Members and through a wide
variety of channels, organizations, and structures. These can include formal committee hearings variety of channels, organizations, and structures. These can include formal committee hearings
and informal Member contacts with executive officials, as well as casework performed by and informal Member contacts with executive officials, as well as casework performed by
Members, reviews and studies by staff and congressional support agencies, reports prepared by Members, reviews and studies by staff and congressional support agencies, reports prepared by
executive branch agencies, and studies prepared by nongovernmental entities such as academic executive branch agencies, and studies prepared by nongovernmental entities such as academic
institutions, private commissions, or think tanks.institutions, private commissions, or think tanks.
Former Former CongressmanRepresentative Lee Hamilton succinctly stated that the purpose of oversight is to Lee Hamilton succinctly stated that the purpose of oversight is to
“"determine what happens after a law is passed.determine what happens after a law is passed.”16"18 Some of the main purposes achieved in making Some of the main purposes achieved in making
that determination are outlined below.that determination are outlined below.
Ensure Executive Compliance with Statutory Requirements and Legislative
Intent
Intent Congress delegates substantial discretionary authority to agency officials to engage in rulemaking Congress delegates substantial discretionary authority to agency officials to engage in rulemaking
and the management of the administrative state. To ensure that these officers faithfully execute and the management of the administrative state. To ensure that these officers faithfully execute
laws according to the intent of Congress, committees and Members can review the actions taken laws according to the intent of Congress, committees and Members can review the actions taken
and regulations formulated by departments and agencies.and regulations formulated by departments and agencies.
The Congressional Review Act
The Congressional Review Act (The Congressional Review Act (CRA, P.L. 104-121) is a tool that Congress may use to overturn regulations issued P.L. 104-121) is a tool that Congress may use to overturn regulations issued
by federal agencies. by federal agencies.The CRA, whichIt was enacted in 1996 was enacted in 1996, and requires agencies to report on their rulemaking requires agencies to report on their rulemaking
activities to Congress. The activities to Congress. TheCRAact was intended to reassert control over agency rulemaking by establishing a special was intended to reassert control over agency rulemaking by establishing a special
set of expedited or set of expedited or“"fast trackfast track”" legislative procedures, particularly in the Senate, for considering legislation to legislative procedures, particularly in the Senate, for considering legislation to
overturn rules.overturn rules.
For more information For more informationon the CRA see CRS Report R43992, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked
Questions, by Maeve P. Carey and Christopher M. Davis; and CRS Report R45248, , by Maeve P. Carey and Christopher M. Davis; and CRS Report R45248, The Congressional Review Act:
Determining Which“Rules”"Rules" Must Be Submitted to Congress, by Valerie C. Brannon and Maeve P. Carey., by Valerie C. Brannon and Maeve P. Carey.
Improve the Efficiency, Effectiveness, and Economy of Governmental Operations
A large federal bureaucracy makes it imperative for Congress to encourage and secure efficient A large federal bureaucracy makes it imperative for Congress to encourage and secure efficient
and effective program management and to make every dollar count toward the achievement of and effective program management and to make every dollar count toward the achievement of
program goals. A basic objective is strengthening federal programs through better managerial program goals. A basic objective is strengthening federal programs through better managerial
operations and service delivery. Such steps can improve the accountability of agency managers to operations and service delivery. Such steps can improve the accountability of agency managers to
Congress and enhance program performance.
15 Woodrow Wilson, Congressional Government (Boston: Houghton Mifflin, 1885), p. 303. More recently, Professor
Josh Chafetz, a scholar of Congress and its role in the federal government in the 21st century, has referred to this
function as “congressional overspeech.” Josh Chafetz, “Congressional Overspeech,” Fordham Law Review, vol. 89
(2020), p. 596.
16 U.S. Congress, House Committee on Rules, Congressional Oversight: A “How-To” Series of Workshops, committee
print, 106th Cong., 2nd sess., 2000, 63-104, p. 10.
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Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious
Behavior, Abuse, Waste, Dishonesty, and Fraud
Instances of fraud and other forms of corruption, wasteful expenditures, incompetent
management, and the subversion of governmental processes can provoke legislative and public
interest in oversight.
Evaluate Program Performance
Congress and enhance program performance.
program evaluation uses social science and management methodologies—such as surveys, cost-program evaluation uses social science and management methodologies—such as surveys, cost-
benefit analyses, and efficiency studies—to assess the effectiveness of ongoing programs. benefit analyses, and efficiency studies—to assess the effectiveness of ongoing programs.
Information about program performance may be useful to Congress as it makes decisions about Information about program performance may be useful to Congress as it makes decisions about
the structure of government programs and the amount of funding they will receive.the structure of government programs and the amount of funding they will receive.
Prevent Executive Encroachment on Legislative Prerogatives and Powers
Many commentators, public policy analysts, and legislators state that Presidents and executive Many commentators, public policy analysts, and legislators state that Presidents and executive
officials may ignore or misinterpret congressional intent in various areas, such as the officials may ignore or misinterpret congressional intent in various areas, such as the
impoundment of funds, executive privilege, and war powers.impoundment of funds, executive privilege, and war powers.1719 Increased oversight—as part of the Increased oversight—as part of the
constitutional checks and balances system—can redress what many in the public and Congress constitutional checks and balances system—can redress what many in the public and Congress
might view as executive arrogation of legislative prerogatives.might view as executive arrogation of legislative prerogatives.
Gather Information for Potential Legislation
One of the major functions of Congress involves developing, debating, and passing legislation. One of the major functions of Congress involves developing, debating, and passing legislation.
Congress gathers information to support its legislative work from a variety of sources, and Congress gathers information to support its legislative work from a variety of sources, and
information gathered from agencies in the process of oversight can be an important part of that information gathered from agencies in the process of oversight can be an important part of that
process. Senator Sam Ervin described the importance of oversight to legislating as follows:process. Senator Sam Ervin described the importance of oversight to legislating as follows:
The Constitution and statutes give Congress a solemn duty to oversee the activities of the The Constitution and statutes give Congress a solemn duty to oversee the activities of the
executive branch. How else can Congress fully comprehend whether existing laws are
adequate and properly administered? How else can Congress determine what executive branch. How else can Congress fully comprehend whether existing laws are adequate and properly administered? How else can Congress determine what specific specific
additional laws are additional laws areneedneeded to guide the nation? to guide the nation?18
20 Assess Agency or Officials’' Ability to Manage and Implement
Program Objectives
CongressCongress’'s ability to evaluate the capacity of agencies and managers to carry out program s ability to evaluate the capacity of agencies and managers to carry out program
objectives can be accomplished in various ways. Numerous laws require agencies to submit objectives can be accomplished in various ways. Numerous laws require agencies to submit
reports to Congress. Some of these are regular, occurring annually or semiannually, for instance, reports to Congress. Some of these are regular, occurring annually or semiannually, for instance,
while others are activated by a specific event, development, or set of conditions. Reporting while others are activated by a specific event, development, or set of conditions. Reporting
requirements may promote self-evaluation by the agency. Organizations outside of Congress—requirements may promote self-evaluation by the agency. Organizations outside of Congress—
17 See Arthur M. Schlesinger Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973); Andrew Rudalevige, The
New Imperial Presidency: Renewing Presidential Power After Watergate (Ann Arbor, MI: University of Michigan
Press, 2005); Louis Fisher, Presidential War Power, 3rd ed. (Lawrence, KS: University of Kansas Press, 2013); and
Saikrishna B. Prakash, The Living Presidency: An Originalist Argument against Its Ever-Expanding Powers
(Cambridge, MA: Belknap Press, 2020).
18 Sen. Sam J. Ervin Jr., “Introduction,” in James Hamilton, The Power to Probe (New York: Random House, 1976), p.
xiii.
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such as offices of inspector general, the Government Accountability Office (GAO)such as offices of inspector general, GAO, and expert , and expert
commissions—also advise Members and committees on how well federal agencies are working.commissions—also advise Members and committees on how well federal agencies are working.
GAO’
GAO's High-Risk List
Since 1990, GAO has operated its Since 1990, GAO has operated its “"High-Risk ProgramHigh-Risk Program”" to monitor and report on to monitor and report on identified aspects of
government operations that GAO determines to begovernment operations that are at high risk of waste, fraud, abuse, and mismanagement. Over at high risk of waste, fraud, abuse, and mismanagement. Over
this period, GAO has added and removed a number of programs and operations from what is commonly referred this period, GAO has added and removed a number of programs and operations from what is commonly referred
to as the High-Risk List based on evaluation criteria developed by GAO. Typically, GAO publishes an update to its to as the High-Risk List based on evaluation criteria developed by GAO. Typically, GAO publishes an update to its
report on the High-Risk List every two years, coinciding with the start of a new Congress. The High-Risk List has report on the High-Risk List every two years, coinciding with the start of a new Congress. The High-Risk List has
become a popular tool for Congress to identify programs and other activities that may benefit from additional become a popular tool for Congress to identify programs and other activities that may benefit from additional
monitoring by committees.
Sources: GAO, High-Risk Series: Dedicated Leadership Needed to Address Limited Progress in Most High-Risk Areas,
GAO-21-119SP, March 2, 2021, https://www.gao.gov/products/gao-21-119sp; and U.S. Congress, House
Committee on Oversight and Government Reform, Exploring GAO's High-Risk List and Opportunities for Reform, 113th
Cong., 1st sess., February 14, 2013 (Washington: GPO, 2013).
monitoring by committees.21 Review and Determine Federal Financial Priorities
Congress exercises some of its most effective oversight through the appropriations process, which Congress exercises some of its most effective oversight through the appropriations process, which
provides the opportunity to assess agency and departmental expenditures in detail. Most federal provides the opportunity to assess agency and departmental expenditures in detail. Most federal
agencies and programs are required to receive recurring reauthorizations—on an annual, two-agencies and programs are required to receive recurring reauthorizations—on an annual, two-
year, five-year, or other basis—giving authorizing committees the opportunity to review agency year, five-year, or other basis—giving authorizing committees the opportunity to review agency
activities, operations, and procedures. As a consequence of these oversight efforts, Congress can activities, operations, and procedures. As a consequence of these oversight efforts, Congress can
abolish or curtail obsolete or ineffective programs by cutting off or reducing funds. Congress abolish or curtail obsolete or ineffective programs by cutting off or reducing funds. Congress
might also increase funding for effective programs.might also increase funding for effective programs.
Protect Individual Rights and Liberties
Congressional oversight can help safeguard the rights and liberties of citizens and others. By Congressional oversight can help safeguard the rights and liberties of citizens and others. By
revealing abuses of authority, oversight hearings and other efforts can halt executive misconduct revealing abuses of authority, oversight hearings and other efforts can halt executive misconduct
and help prevent its recurrence through, for example, new legislation or indirectly by heightening and help prevent its recurrence through, for example, new legislation or indirectly by heightening
public awareness.public awareness.
Draw Public Attention to Issues
Congressional oversight can provide Congress and its Members with the opportunity to highlight Congressional oversight can provide Congress and its Members with the opportunity to highlight
issues, activities of the government, and other events that they wish to bring to the attention of the issues, activities of the government, and other events that they wish to bring to the attention of the
public. Congress may believe that it will be better able to achieve a goal if public pressure or public. Congress may believe that it will be better able to achieve a goal if public pressure or
energy is directed to a particular matter and that oversight activities may be one way to generate energy is directed to a particular matter and that oversight activities may be one way to generate
that attention.that attention.
Other Purposes
The purposes of oversight can also be stated in more precise terms. Like the general purposes The purposes of oversight can also be stated in more precise terms. Like the general purposes
noted above, these more specific purposes unavoidably overlap because of the numerous and noted above, these more specific purposes unavoidably overlap because of the numerous and
multifaceted dimensions of oversight. A brief list includes the following:multifaceted dimensions of oversight. A brief list includes the following:
Review the agency rulemaking processReview the agency rulemaking process
Monitor the use of contractors and consultants for government servicesMonitor the use of contractors and consultants for government services
Encourage cooperation between agencies and between the branchesEncourage cooperation between agencies and between the branches
Promote accountability within agenciesPromote accountability within agencies
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Examine agency personnel procedures
Appraise the administration of justice, including judicial and administrative proceedings
Investigate constituent complaints and media critiquesInvestigate constituent complaints and media critiques
Signal priorities and demonstrate activity to constituents and interest groupsSignal priorities and demonstrate activity to constituents and interest groups
Assess whether program design and execution Assess whether program design and execution
Appraise federal evaluation activities
are meeting the needs of service recipients Thoughts on Oversight and Its Rationales from...
James Wilson (James Wilson (The Works of James Wilson, 1896, vol. II, p. 29), an architect of the Constitution and Associate , 1896, vol. II, p. 29), an architect of the Constitution and Associate
Justice on the first Supreme Court:Justice on the first Supreme Court:
The House of Representatives … form the grand inquest of the state. They The House of Representatives … form the grand inquest of the state. They wil will diligently inquire diligently inquire
into grievances, arising both from men and things.into grievances, arising both from men and things.
Woodrow Wilson (Woodrow Wilson (Congressional Government, 1885, p. 297), perhaps the first scholar to use the term , 1885, p. 297), perhaps the first scholar to use the term oversight to to
refer to the review and investigation of the executive branch:refer to the review and investigation of the executive branch:
Quite as important as legislation is vigilant oversight of administration.Quite as important as legislation is vigilant oversight of administration.
It is the proper duty of a representative body to look diligently into every affair of government and It is the proper duty of a representative body to look diligently into every affair of government and
to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the
wisdom and wisdom andwil will of its constituents.of its constituents.
The informing function of Congress should be preferred even to its legislative function.The informing function of Congress should be preferred even to its legislative function.
John Stuart John Stuart Mil Mill ((Considerations on Representative Government, 1861, p. 104), a British utilitarian philosopher:, 1861, p. 104), a British utilitarian philosopher:
[T]he proper office of a representative assembly is to watch and control the government; to throw [T]he proper office of a representative assembly is to watch and control the government; to throw
the light of publicity on its acts; to compel a the light of publicity on its acts; to compel aful full exposition and justification of all of them which any exposition and justification of all of them which any
one considers questionable.one considers questionable.
Congress as an Oversight Body
This section lays out several key issues related to CongressThis section lays out several key issues related to Congress’'s role as a legislative body. It begins s role as a legislative body. It begins
with a broad discussion of the constitutional sources of Congresswith a broad discussion of the constitutional sources of Congress’'s oversight authority and then s oversight authority and then
proceeds to more specific discussion about how Congress operates as an proceeds to more specific discussion about how Congress operates as anoverseer, including
information on participants in oversight, jurisdictional issues, how stakeholders can coordinate
their work, and key House and Senate rules that relate to oversightoversight organization. Next, the section considers . Next, the section considers
oversight as a practice and lays out one way to model oversight as a process. Finallyoversight as a practice and lays out one way to model oversight as a process. Finally, the section the section
concludes with concludes withan extendeda discussion discussion onof Congress Congress’'s working relationship with the executive s working relationship with the executive
branch.branch.
Authority to Conduct Oversight
CongressCongress’'s authority to conduct oversight comes from the Constitution and is informed by s authority to conduct oversight comes from the Constitution and is informed by
Supreme Court decisions, federal laws, and House and Senate rules. Oversight is an implicit Supreme Court decisions, federal laws, and House and Senate rules. Oversight is an implicit
constitutional responsibility of Congress. According to historian Arthur Schlesinger Jr., constitutional responsibility of Congress. According to historian Arthur Schlesinger Jr.,the
Framers believed “"it was not considered necessary it was not considered necessary [by the Framers] to make an explicit grant of such authority. to make an explicit grant of such authority.
The power to make laws implied the power to see whether they were faithfully executed.The power to make laws implied the power to see whether they were faithfully executed.”19
"22
The investigative authority of Congress has been broadly interpreted by an array of Supreme The investigative authority of Congress has been broadly interpreted by an array of Supreme
Court decisions. For example, in Court decisions. For example, in Watkins v. United States,,2023 the Court stated that the the Court stated that the “"power of power of
Congress to conduct investigations is inherent in the legislative process. That power is broad. It Congress to conduct investigations is inherent in the legislative process. That power is broad. It
19 Arthur Schlesinger Jr. and Roger Burns, eds., Congress Investigates: A Documented History, 1792-1974, vol. 1 (New
York: Chelsea House, 1975), p. xiii.
20 354 U.S. 178 (1957).
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encompasses inquiries concerning the administration of existing laws as well as proposed or encompasses inquiries concerning the administration of existing laws as well as proposed or
possibly needed laws.possibly needed laws.”" There are limits to Congress There are limits to Congress’'s power to investigate, including some found s power to investigate, including some found
in the Constitution itself (e.g., the protection accorded witnesses under the Fifth Amendment in the Constitution itself (e.g., the protection accorded witnesses under the Fifth Amendment
against self-incrimination).against self-incrimination).
The Supreme Court on Congress’'s Power to Oversee and Investigate
McGrain v. Daugherty, 273 U.S. 135, 177, 181-182 (1927): Congress, investigating the administration of the Congress, investigating the administration of the
U.S. Department of Justice (DOJ) during the Teapot Dome scandal, was considering a subject U.S. Department of Justice (DOJ) during the Teapot Dome scandal, was considering a subject“"on which legislation on which legislation
could be had or would be materially aided by the information which the investigation was calculated to elicit.could be had or would be materially aided by the information which the investigation was calculated to elicit.”" The "potential" The
“potential” for legislation was sufficient. The majority added, for legislation was sufficient. The majority added, “"We are of [the] opinion that the power of inquiry—We are of [the] opinion that the power of inquiry—
with process to enforce it—is an essential and appropriate auxiliary to the legislative function.with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”
" Eastland v. United States Servicemen’'s Fund, 421 U.S. 491, 509 (1975): Expanding on its holding in Expanding on its holding in McGrain, ,
the Court declared, the Court declared,“"To be a valid legislative inquiry there need be no predictable end result.To be a valid legislative inquiry there need be no predictable end result.”
" Constitutional Provisions
The Constitution grants Congress extensive authority to oversee and investigate executive branch The Constitution grants Congress extensive authority to oversee and investigate executive branch
activities. The constitutional authority for Congress to conduct oversight stemsactivities from such explicit from such explicit
and implicit provisions as and implicit provisions as
the following:The power of the purse. The Constitution provides: The Constitution provides: “"No Money shall be No Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by drawn from the Treasury, but in Consequence of Appropriations made by
Law.Law.”21"24 Each year the House and Senate Committees on Appropriations Each year the House and Senate Committees on Appropriations
review the financial practices and needs of federal agencies. The review the financial practices and needs of federal agencies. The
appropriations process allows Congress to exercise extensive control over the appropriations process allows Congress to exercise extensive control over the
activities of executive agencies. Congress can define the precise purposes for activities of executive agencies. Congress can define the precise purposes for
which money may be spent, adjust funding levels, and prohibit expenditures which money may be spent, adjust funding levels, and prohibit expenditures
for certain purposes.for certain purposes.
The power to organize the executive branch. Congress has the authority to Congress has the authority to
create, abolish, reorganize, and fund federal departments and agencies. It has create, abolish, reorganize, and fund federal departments and agencies. It has
the authority to assign or reassign functions to departments and agencies and the authority to assign or reassign functions to departments and agencies and
grant new forms of authority and staff to administrators. Congress, in short, grant new forms of authority and staff to administrators. Congress, in short,
exercises ultimate authority over executive branch organization and generally exercises ultimate authority over executive branch organization and generally
over policy.over policy.22
25
The power to make all laws for “"carrying into Execution”" Congress’'s own
enumerated powers as well as those of the executive branch. Article I grants Article I grants
Congress a wide range of powers, such as the power to tax and coin money, Congress a wide range of powers, such as the power to tax and coin money,
regulate foreign and interstate commerce, declare war, provide for the regulate foreign and interstate commerce, declare war, provide for the
creation and maintenance of armed forces, and establish post offices.creation and maintenance of armed forces, and establish post offices.23
26 Augmenting these specific powers is the Necessary and Proper Clause, Augmenting these specific powers is the Necessary and Proper Clause,also
known as the “Elastic Clause,” which gives Congress the authority to which gives Congress the authority to “"make make
all Laws which shall be necessary and proper for carrying into Execution the all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.Government of the United States, or in any Department or Officer thereof.”24
21 U.S. Const. art. I, §9, cl. 7.
22 U.S. Const. art. I, §9; see also U.S. Const. art. II, §2, cl. 2.
23 U.S. Const. art. I, §8.
24 U.S. Const. art. I, §8, cl. 18.
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"27 These provisions grant broad authority to regulate and oversee departmental These provisions grant broad authority to regulate and oversee departmental
activities established by law.activities established by law.
The 28
The Senate's power to confirm officers of the United States. The confirmation process The confirmation process
not only involves the determination of a nomineenot only involves the determination of a nominee’'s suitability for an s suitability for an
executive (or judicial) position but also provides an opportunity to examine executive (or judicial) position but also provides an opportunity to examine
the current policies and programs of an agency along with those policies and the current policies and programs of an agency along with those policies and
programs that the nominee intends to pursue.programs that the nominee intends to pursue.25
29
The power of investigation and inquiry. A traditional method of exercising A traditional method of exercising
the oversight function, an implied power, is through investigations and the oversight function, an implied power, is through investigations and
inquiries into executive branch operations. Legislators often seek to know inquiries into executive branch operations. Legislators often seek to know
how effectively and efficiently programs are working, how well agency how effectively and efficiently programs are working, how well agency
officials are responding to legislative directives, and how the public officials are responding to legislative directives, and how the public
perceives the programs. The investigatory method helps to ensure a more perceives the programs. The investigatory method helps to ensure a more
responsible bureaucracy while supplying Congress with information needed responsible bureaucracy while supplying Congress with information needed
to formulate new legislation.to formulate new legislation.
Impeachment and removal. Impeachment provides Congress with a powerful Impeachment provides Congress with a powerful
oversight tool to investigate alleged executive and judicial misbehavior and oversight tool to investigate alleged executive and judicial misbehavior and
to eliminate such misbehavior through the conviction and removal from to eliminate such misbehavior through the conviction and removal from
office of the offending individuals.office of the offending individuals.26
30Statutes and Oversight
There are also numerous laws that impact how Congress conducts oversight.There are also numerous laws that impact how Congress conducts oversight.2731 Despite its lengthy Despite its lengthy
heritage, oversight was not given explicit recognition in public law until enactment of the heritage, oversight was not given explicit recognition in public law until enactment of the
Legislative Reorganization Act of 1946Legislative Reorganization Act of 1946.28 That act,32 which required House and Senate standing required House and Senate standing
committees to exercise committees to exercise“"continuous watchfulness”" over programs and agencies within their over programs and agencies within their
jurisdictions.jurisdictions.
Congress has also passed a number of laws, especially in the past half-century, that support its Congress has also passed a number of laws, especially in the past half-century, that support its
oversight function directly and indirectly. Some of these statutes were designed to make executive oversight function directly and indirectly. Some of these statutes were designed to make executive
branch agencies more transparent. Others have established officials within agencies who are branch agencies more transparent. Others have established officials within agencies who are
required to perform certain routine oversight functions, including audits and investigations of required to perform certain routine oversight functions, including audits and investigations of
potential waste, fraud, abuse, or mismanagement. In practice, a large amount of Congresspotential waste, fraud, abuse, or mismanagement. In practice, a large amount of Congress’s
's oversight activity can be traced to information gathered or disclosed through these laws. In oversight activity can be traced to information gathered or disclosed through these laws. In
addition, Congress devotes significant attention to monitoring the effectiveness of these addition, Congress devotes significant attention to monitoring the effectiveness of these
oversight-enabling statutes and considering amendments to improve their effectiveness.oversight-enabling statutes and considering amendments to improve their effectiveness.
House and Senate Rules on Oversight
The House and Senate have often amended their formal rules to encourage and strengthen The House and Senate have often amended their formal rules to encourage and strengthen
committee oversight of the administration of laws. For example, House rules direct committees to committee oversight of the administration of laws. For example, House rules direct committees to
create oversight subcommittees, undertake futures research and forecasting, and review the create oversight subcommittees, undertake futures research and forecasting, and review the
impact of tax expenditures within their respective jurisdictions. Senate rules require each standing impact of tax expenditures within their respective jurisdictions. Senate rules require each standing
25 See U.S. Const. art. II, §2, cl. 2.
26 See U.S. Const. art. II, §4.
27 For a detailed discussion, including specific examples of relevant statutes, see “Statutory Oversight Enablers”,
below.
28 P.L. 79-601, 60 Stat. 812 (1946).
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committee to include regulatory impact statements in committee reports accompanying committee to include regulatory impact statements in committee reports accompanying
legislation.legislation.
House Rules
House Houserules29rules33 grant the Committee on Oversight and grant the Committee on Oversight and Government Reform a comprehensive role in the conduct Reform a comprehensive role in the conduct
of oversight. For example, the committee has the authority or responsibility toof oversight. For example, the committee has the authority or responsibility to:
“review do the following:"[R]eview and study on a continuing basis the operation of government and study on a continuing basis the operation of government
activities at all levels, including the Executive Office of the Presidentactivities at all levels, including the Executive Office of the President”" (Rule (Rule
X, clause 3).X, clause 3).
“receive
"[R]eceive and examine reports of the Comptroller General and examine reports of the Comptroller General of the United States and submit to the and submit to the
House such recommendations as it considers necessary or desirable in House such recommendations as it considers necessary or desirable in
connection with the subject matter of the reportsconnection with the subject matter of the reports”" (Rule X, clause 4). (Rule X, clause 4).
“study
"[S]tudy intergovernmental relationships between the United States and the intergovernmental relationships between the United States and the
States and municipalities and between the United States and international States and municipalities and between the United States and international
organizations of which the United States is a memberorganizations of which the United States is a member”" (Rule X, clause 4). (Rule X, clause 4).
conduct investigations, at its discretion and at any time, of matters that are
jurisdictionally conferred
"[A]t any time conduct investigations of any matter [notwithstanding language] conferring jurisdiction over the matter to another standing committee. The findings and to another standing committee. The findings and
recommendations of the recommendations of theOversight and Reform Committeecommittee in such an in such an
investigation shall be made available to any other standing committee having investigation shall be made available to any other standing committee having
jurisdiction over the matter involvedjurisdiction over the matter involved" (Rule X, clause 4). (Rule X, clause 4).
report to the House “not later than April 15 in the first session of a Congress,
after consultation with the Speaker, the majority leader, and the minority
leader … the oversight plans submitted [by the committees]
Report to the House "the authorization and oversight plans submitted by committees … together with together with
any recommendations that [the any recommendations that [theOversight and Reform Committeecommittee], or the ], or the
House leadership group described above, may make to ensure the most House leadership group described above, may make to ensure the most
effective coordination of effective coordination ofthese[these] plans plans”" (Rule X, clause 2). (Rule X, clause 2).
choose
Choose to adopt a to adopt a “"rule authorizing and regulating the taking of depositions rule authorizing and regulating the taking of depositions
by a member or counsel of the committee including pursuant to subpoena by a member or counsel of the committee including pursuant to subpoena
under clause 2(m) of Rule XIunder clause 2(m) of Rule XI”" (Rule X, clause 4). (Rule X, clause 4).
“evaluate
"[E]valuate the effect of laws enacted to reorganize the legislative and the effect of laws enacted to reorganize the legislative and
executive branches of the Governmentexecutive branches of the Government”" (Rule X, clause 4). (Rule X, clause 4).
House rules also provide authority for oversight by other standingHouse rules also provide authority for oversight by other standing committees as follows:committees as follows:
Each standing committee (except Appropriations, Ethics, and Rules) shall Each standing committee (except Appropriations, Ethics, and Rules) shall
review and study review and study “"the application, administration, execution, and the application, administration, execution, and
effectiveness of laws and programs addressing subjects within its effectiveness of laws and programs addressing subjects within its
jurisdiction”jurisdiction" and determine whether they should be and determine whether they should be “"continued, curtailed, or continued, curtailed, or
eliminated”eliminated" (Rule X, clause 2). (Rule X, clause 2).
Committees have the authority to Committees have the authority to “"review and study review and study on a continuing basis the impact or probable the impact or probable
impact of tax policiesimpact of tax policies”" on subjects that fall within their on subjects that fall within their jurisdictionjurisdictions (Rule X, (Rule X,
clause 2).clause 2).
Certain committees have special oversight authority (i.e., to review and Certain committees have special oversight authority (i.e., to review and
study, on an ongoing basis, specific subject areas that are within the study, on an ongoing basis, specific subject areas that are within the
legislative legislativejurisdictionjurisdictions of other committees). Special oversight is somewhat of other committees). Special oversight is somewhat
29 The rules of the House of Representatives are available at https://rules.house.gov/rules-and-resources.
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akin to the broad oversight authority granted to the Committee on Oversight akin to the broad oversight authority granted to the Committee on Oversight
and and Government Reform by the 1946 Legislature Reorganization Act except that special Reform by the 1946 Legislature Reorganization Act except that special
oversight is generally limited to named subjects (Rule X, clause 3).oversight is generally limited to named subjects (Rule X, clause 3).
Each standing committee Each standing committee “"having more than 20 members shall establish an having more than 20 members shall establish an
oversight subcommittee, or require its subcommittees to conduct oversight in oversight subcommittee, or require its subcommittees to conduct oversight in
their respective their respectivejurisdictional areas”jurisdictions" (Rule X, clauses 2 and 5). (Rule X, clauses 2 and 5).
Committee reports on measures are to include oversight findings separately Committee reports on measures are to include oversight findings separately
set out and clearly identified. set out and clearly identified. They areEach report is also to include also to include “"a statement of general a statement of general
performance goals and objectives, including outcome-related goals and performance goals and objectives, including outcome-related goals and
objectives, for which the measure authorizes fundingobjectives, for which the measure authorizes funding”" (Rule XIII, clause 3). (Rule XIII, clause 3).
“
"Each standing committee, or a subcommittee thereof, shall hold at least one Each standing committee, or a subcommittee thereof, shall hold at least one
hearing during each 120-day period following the establishment of the hearing during each 120-day period following the establishment of the
committee on the topic of waste, fraud, abuse, or mismanagement in committee on the topic of waste, fraud, abuse, or mismanagement in
governmentGovernment programs programs thatwhich that committee may authorize. that committee may authorize.”" Such hearings Such hearings
shall shall“"include a focus on the most egregious instances of waste, fraud, abuse, include a focus on the most egregious instances of waste, fraud, abuse,
or mismanagement in government programs as documented by any report the or mismanagement in government programs as documented by any report the
committees havecommittee has received received”" from the Comptroller General or an inspector from the Comptroller General or an inspector
general. Committee and subcommittees shall also hold general. Committee and subcommittees shall also hold“"at least one hearing at least one hearing
on issues raised by reports issued by the [Comptroller General] indicating on issues raised by reports issued by the [Comptroller General] indicating
that thatfederalFederal programs or operations that the committee may authorize are at programs or operations that the committee may authorize are at
high risk for waste, fraud, and mismanagement, known as the high risk for waste, fraud, and mismanagement, known as the‘'high-risk listhigh-risk list’
or ‘' or 'high-risk serieshigh-risk series’”'" (Rule XI, clause 2). (Rule XI, clause 2).
The chair of each standing committee (except Appropriations, Ethics, and The chair of each standing committee (except Appropriations, Ethics, and
Rules) shall “prepare, in consultation with the ranking minority member, an
oversight plan for that Congress not later than March 1 of the first session of
a Congress.”Rules) shall adopt in a public meeting an authorization and oversight plan for that Congress. Committee plans shall be submitted simultaneously to the Committee plans shall be submitted simultaneously to the
Committees on Oversight and Committees on Oversight and Government Reform and House Administration. Reform and House Administration.
Additionally, “not later than April 15 in the first session of a Congress, after
consultation with the Speaker, the Majority Leader, and the Minority Leader,
Additionally, "the Committee on Oversight and the Committee on Oversight and Government Reform shall report to the House Reform shall report to the Houseon the
the authorization and oversight plans [of the committees] together with any recommendations that oversight plans [of the committees] together with any recommendations that
it, or the House leadership groupit, or the House leadership group, … may make to ensure the most effective may make to ensure the most effective
coordination of coordination of authorization and oversight plans and otherwise to achieve the[se] objectives" (Rule X, clause 2)."Each such plan shall include, with respect to programs and agencies within the committee's jurisdiction, and to the maximum extent practicable— oversight plans and otherwise to achieve the[se] objectives.”
“In developing their plans, each standing committee shall to the maximum
extent feasible
(A) “consult with other committees that have jurisdiction over the same or
related laws, programs, or agencies with the objective of ensuring
maximum coordination and cooperation among committees when
conducting reviews of such laws, programs, or agencies and include in
the plan an explanation of steps that have been or will be taken to ensure
such coordination and cooperation;
(B) “review specific problems with Federal rules, regulations, statutes, and
court decisions that are ambiguous, arbitrary, or nonsensical, or that
impose severe financial burdens on individuals;
(C) “give priority consideration to including in the plan the review of those
laws, programs, or agencies operating under permanent budget authority
or permanent statutory authority;
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(D) “have a view toward ensuring that all significant laws, programs, or
agencies within the committee’s jurisdiction are subject to review every
10 years;
(E) “have a view toward ensuring against duplication of Federal programs;
and
(F) “give priority consideration to including in the plan discussion of how the
committee’s work will address issues of inequities on the basis of race,
color, ethnicity, religion, sex, sexual orientation, gender identity,
disability, age, or national origin” (Rule X, clause 2).
“Not later than January 2 of each odd-numbered year, a committee shall
Not later than January 2 of each odd-numbered year, a committee shall submit to the House a report on the activities of that committee. (2) Such submit to the House a report on the activities of that committee. (2) Such
report shall include—report shall include—
(A) (A)“"separate sections summarizing the legislative and oversight activities of separate sections summarizing the legislative and oversight activities of
the committee during the applicable period;
(B) “a summary of the that committee under [rules X and XI] during the Congress;
(B) "a summary of the authorization and oversight plans submitted by the committeeoversight plans submitted by the committee; …
…; (C) (C)“"a summary of the actions taken and recommendations made with respect a summary of the actions taken and recommendations made with respect
to [theirto [their authorization and oversight plans]; oversight plans];
(D) (D) “"a summary of any additional oversight activities undertaken by that a summary of any additional oversight activities undertaken by that
committee and any recommendations made or actions taken thereon; andcommittee and any recommendations made or actions taken thereon; and
(E) (E) “"a delineation of any [oversight] hearingsa delineation of any [oversight] hearings”" (Rule XI, clause 1). (Rule XI, clause 1).
In addition, the Speaker, with the approval of the House, may appoint special ad hoc oversightIn addition, the Speaker, with the approval of the House, may appoint special ad hoc oversight
committees for the purpose of reviewing specific matters within the committees for the purpose of reviewing specific matters within thejurisdictionjurisdictions of two or more of two or more
standing committees (Rule X, clause 2).standing committees (Rule X, clause 2).
The House Select Subcommittee on the Coronavirus Crisis
On April 23, 2020, the House adopted H.Res. 938, which created the Select Subcommittee on the Coronavirus On April 23, 2020, the House adopted H.Res. 938, which created the Select Subcommittee on the Coronavirus
Crisis of the House Committee on Oversight and Reform. Similar to previous select committees dedicated to Crisis of the House Committee on Oversight and Reform. Similar to previous select committees dedicated toa
specific specificissueissues, the select subcommittee was directed by the resolution to , the select subcommittee was directed by the resolution to “"conduct a conduct a ful full and complete and complete
investigation and studyinvestigation and study”" and to issue a final report to the House on a number of specific issues related to the and to issue a final report to the House on a number of specific issues related to the
impact of the COVID-19 pandemic and the federal governmentimpact of the COVID-19 pandemic and the federal government’'s response. (See H.Res. 935 for the operational s response. (See H.Res. 935 for the operational
text regarding the select subcommittee.) The select subcommittee, which was retained in the text regarding the select subcommittee.) The select subcommittee, which was retained in the117th117th Congress, Congress, has
held briefings and hearings, released reports, and requested information from the executive branch as the held briefings and hearings, released reports, and requested information from the executive branch as the
pandemic and the governmentpandemic and the government’'s response evolved.s response evolved.
While a large number of committees and subcommittees in both chambers have oversight jurisdiction relevant to While a large number of committees and subcommittees in both chambers have oversight jurisdiction relevant to
specific aspects of the pandemic and pandemic response, the House was able to both use and adapt its standing specific aspects of the pandemic and pandemic response, the House was able to both use and adapt its standing
rules to create a subcommittee tasked with overseeing and investigating the issue as a whole.rules to create a subcommittee tasked with overseeing and investigating the issue as a whole.
Senate Rules
Under Senate rules,Under Senate rules,3034 each standing committee (except for Appropriations and Budget) shall each standing committee (except for Appropriations and Budget) shall
“"review and study, on a continuing basis, the application, administration, and execution of those review and study, on a continuing basis, the application, administration, and execution of those
laws, or parts of laws, laws, or parts of laws, the subject matter of which is within the legislative jurisdiction of within the legislative jurisdiction ofthethat committee committee”" (Rule XXVI, clause 8). (Rule XXVI, clause 8).
In addition to In addition to thatthis general oversight requirement, general oversight requirement, “comprehensive policy oversight”
policy oversight responsibilities are granted to specified standing committees. This duty is similar to special responsibilities are granted to specified standing committees. This duty is similar to special
oversight in the House. For example, the Committee on Agriculture, Nutrition, and Forestry is oversight in the House. For example, the Committee on Agriculture, Nutrition, and Forestry is
authorized to authorized to "study and review, on a comprehensive basis, matters relating to food, nutrition, and study and review, on a comprehensive basis, matters relating to food, nutrition, and
30 The rules of the Senate are available at https://www.rules.senate.gov/rules-of-the-senate
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hunger both in the United States and in foreign countries and rural affairs and report thereon from hunger both in the United States and in foreign countries and rural affairs and report thereon from
time to timetime to time" (Rule XXV, clause 1(a)). (Rule XXV, clause 1(a)).
All standing committees, except Appropriations, are required to include regulatory impact All standing committees, except Appropriations, are required to include regulatory impact
evaluations in their committee reports accompanying each public bill or joint resolution (Rule evaluations in their committee reports accompanying each public bill or joint resolution (Rule
XXVI, clause 11). The evaluations are to include matters such as:XXVI, clause 11). The evaluations are to include matters such as:
an estimate of the numbers of individuals and businesses that would be an estimate of the numbers of individuals and businesses that would be
regulated,regulated,
a determination of the measurea determination of the measure’'s economic impact and effect on personal s economic impact and effect on personal
privacy, andprivacy, and
a determination of the amount of additional paperwork that will result from a determination of the amount of additional paperwork that will result from
the regulations.the regulations.
The Committee on Homeland Security and Governmental Affairs exercises oversight jurisdiction The Committee on Homeland Security and Governmental Affairs exercises oversight jurisdiction
over government operations generally, including the U.S. Department of Homeland Security. over government operations generally, including the U.S. Department of Homeland Security.
Selected oversight duties assigned to the committee under Rule XXV, clause 2(k)Selected oversight duties assigned to the committee under Rule XXV, clause 2(k), include: include:
reviewing and studying on a continuing basis the operation of government reviewing and studying on a continuing basis the operation of government
activities at all levels to determine their economy, effectiveness, and activities at all levels to determine their economy, effectiveness, and
efficiency;efficiency;
receiving and examining reports of the Comptroller General and submitting receiving and examining reports of the Comptroller General and submitting
recommendations as it deems necessary to the Senate;recommendations as it deems necessary to the Senate;
evaluating the effects of laws enacted to reorganize the legislative and evaluating the effects of laws enacted to reorganize the legislative and
executive branches of the government; andexecutive branches of the government; and
studying intergovernmental relationships between the United States and the studying intergovernmental relationships between the United States and the
states and municipalities and international organizations of which the United states and municipalities and international organizations of which the United
States is a member.States is a member.
The Senate established the Permanent Subcommittee on Investigations under the Committee on The Senate established the Permanent Subcommittee on Investigations under the Committee on
Government Operations on March 1, 1948 (during the Government Operations on March 1, 1948 (during the80th80th Congress) by adopting S.Res 189. Congress) by adopting S.Res 189.
The subcommittee was an outgrowth of the 1941 The subcommittee was an outgrowth of the 1941 “"Truman CommitteeTruman Committee”" (named for its chair, (named for its chair,
Senator Harry Truman), which investigated fraud and mismanagement of the nationSenator Harry Truman), which investigated fraud and mismanagement of the nation’'s war s war
program. The Truman Committee ended in 1948, but the chair of the Government Operations program. The Truman Committee ended in 1948, but the chair of the Government Operations
Committee transferred the functions of the Truman Committee to the Permanent Subcommittee Committee transferred the functions of the Truman Committee to the Permanent Subcommittee
on Investigations. Since thenon Investigations. Since then, this subcommittee (now a part of the Committee on Homeland this subcommittee (now a part of the Committee on Homeland
Security and Governmental Affairs) has investigated scores of issues, such as government waste, Security and Governmental Affairs) has investigated scores of issues, such as government waste,
fraud, and inefficiency.fraud, and inefficiency.31
35 Congressional Participants in Oversight
Committees
The most common method of conducting oversight is through the committee system. Legislative The most common method of conducting oversight is through the committee system. Legislative
history demonstrates that the House and Senate have long used their standing committees—as history demonstrates that the House and Senate have long used their standing committees—as
well as joint, select, or special committees—to investigate federal activities and agencies:well as joint, select, or special committees—to investigate federal activities and agencies:
31 For more information, see Senate Committee on Homeland Security and Governmental Affairs, “Permanent
Subcommittee on Investigations Historical Background,” March 24, 2022, https://www.hsgac.senate.gov/
subcommittees/investigations/media/permanent-subcommittee-on-investigations-historical-background.
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The House Committee on Oversight and The House Committee on Oversight and Government Reform and the Senate Committee Reform and the Senate Committee
on Homeland Security and Governmental Affairs have broad oversight on Homeland Security and Governmental Affairs have broad oversight
jurisdiction over virtually the entire federal government. They have been jurisdiction over virtually the entire federal government. They have been
vested with broad investigatory powers over government-wide activities.vested with broad investigatory powers over government-wide activities.
The House and Senate Committees on Appropriations have similar
responsibilities when examining and reviewing the fiscal activities of the
federal government. The House Committee on Appropriations also has a
“Surveys and Investigations” staff who are tasked with “pursu[ing] program
issues in depth, including those specific to an agency or Department and
those that are crosscutting and have government-wide impacts.”32 The work
of this staff is based on directives from subcommittees that must be issued on
a bipartisan basis by the chair and ranking member.33
Each standing committee of Congress has oversight responsibilities for Each standing committee of Congress has oversight responsibilities for
reviewing government activities principally within its jurisdiction. These reviewing government activities principally within its jurisdiction. These
panels also have the authority to establish oversight and investigative panels also have the authority to establish oversight and investigative
subcommittees. The establishment of an oversight subcommittee does not subcommittees. The establishment of an oversight subcommittee does not
preclude a panelpreclude a panel’'s legislative subcommittees from conducting oversight. s legislative subcommittees from conducting oversight.
Certain House and Senate committees have Certain House and Senate committees have“"special oversightspecial oversight”" or or
“"comprehensive policy oversightcomprehensive policy oversight”" of designated subject areas, as noted of designated subject areas, as noted
above.above.
Members
Members Oversight is generally considered a committee activity, but Members also have the ability to Oversight is generally considered a committee activity, but Members also have the ability to
pursue oversight without working through a committee. Both casework and other project work pursue oversight without working through a committee. Both casework and other project work
conducted in Membersconducted in Members’' personal offices, including in their district or state offices, can yield personal offices, including in their district or state offices, can yield
insights about bureaucratic behavior and policy implementation. These discoveries, in turn, can insights about bureaucratic behavior and policy implementation. These discoveries, in turn, can
lead to the adjustment of agency policies and procedures and to changes in public law.lead to the adjustment of agency policies and procedures and to changes in public law.
Casework—responding to constituent requests for assistance with Casework—responding to constituent requests for assistance with a federal agency34federal agencies36—provides —provides
an opportunity to examine bureaucratic activity and operations, if only in a selective way. Other an opportunity to examine bureaucratic activity and operations, if only in a selective way. Other
constituent service activities, such as responding to inquiries about federal grants or projects or constituent service activities, such as responding to inquiries about federal grants or projects or
addressing concerns about program implementation or agency operations, may also provide addressing concerns about program implementation or agency operations, may also provide
Members with similar insights. The accessibility of government websites also allows interested Members with similar insights. The accessibility of government websites also allows interested
constituents to monitor federal activities and expenditures and to share their findings or constituents to monitor federal activities and expenditures and to share their findings or
observations with Members, relevant committees, and legislative staff.observations with Members, relevant committees, and legislative staff.
Individual Members may also conduct their own investigations or ad hoc hearings or direct their Individual Members may also conduct their own investigations or ad hoc hearings or direct their
staff to conduct oversight studies. While individual lawmakers lack the authority to use staff to conduct oversight studies. While individual lawmakers lack the authority to use
compulsory processes (e.g., subpoenas) or conduct official hearings, many other options are compulsory processes (e.g., subpoenas) or conduct official hearings, many other options are
available.available.3537 Members might also request GAO, an inspector general or other appropriate Members might also request GAO, an inspector general or other appropriate
government official, a private research group, or some other entity to conduct an investigation. government official, a private research group, or some other entity to conduct an investigation.
Members might choose to publicize this work by releasing staff reports with their findings; Members might choose to publicize this work by releasing staff reports with their findings;
32 U.S. Congress, House Committee on Appropriations, Annual Report of Committee Activities, 116th Cong., 2nd sess.,
January 2, 2021, Rept. No. 116-716 (Washington: GPO, 2021), pp. 13-14.
33 Ibid.
34 See CRS Report RL33209, Casework in a Congressional Office: Background, Rules, Laws, and Resources, by R.
Eric Petersen and Sarah J. Eckman.
35 See “Individual Member Authority to Conduct Oversight and Investigations” below.
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sharing information with their constituents, the media, and other stakeholders; or using what they sharing information with their constituents, the media, and other stakeholders; or using what they
learn to support additional oversight or legislation.learn to support additional oversight or legislation.
Committee Staff
As issues become more complex, the professional staff of House and Senate committees As issues become more complex, the professional staff of House and Senate committeescan
may provide the expertise required to conduct effective oversight and investigations. Committee staff provide the expertise required to conduct effective oversight and investigations. Committee staff
are expected to have the experience, knowledge, and analytical skills to conduct proficient and are expected to have the experience, knowledge, and analytical skills to conduct proficient and
thorough oversight for the committees and subcommittees they serve. Committees may also call thorough oversight for the committees and subcommittees they serve. Committees may also call
upon legislativeupon legislative support agenciessupport agencies for assistance, hire consultants, for assistance, hire consultants,“borrow”"borrow" staff from federal staff from federal
departments, or employ academics and others with specialized expertise.departments, or employ academics and others with specialized expertise.
Committee staff, in summary, occupy a central position in the conduct of oversight. Their Committee staff, in summary, occupy a central position in the conduct of oversight. Their
informal contacts with executive officials at all levels constitute one of Congressinformal contacts with executive officials at all levels constitute one of Congress’'s most effective s most effective
techniques for performing its techniques for performing its“"continuous watchfulnesscontinuous watchfulness”" function. function.
Personal Staff
Constituent letters, complaints, and requests for projects and assistance frequently bring issues Constituent letters, complaints, and requests for projects and assistance frequently bring issues
and deficiencies in federal programs and administration to the attention of Members and their and deficiencies in federal programs and administration to the attention of Members and their
personal office staff. The casework performed by a Memberpersonal office staff. The casework performed by a Member’'s staff for constituents can be an s staff for constituents can be an
effective oversight tool.effective oversight tool.
Casework can be an important vehicle for pursuing both the oversight and legislative interests of Casework can be an important vehicle for pursuing both the oversight and legislative interests of
the Member. Members and their staff aides are mindful of thethe Member. The relationship between casework and relationship between casework and
the oversight functionthe oversight function. This connection is facilitated by a regular exchange of ideas among the is facilitated by a regular exchange of ideas among the
Member, legislative aides, and caseworkers on problems brought to the officeMember, legislative aides, and caseworkers on problems brought to the office’'s attention by s attention by
constituents. Caseworkers may also become aware of certain issues through their interactions constituents. Caseworkers may also become aware of certain issues through their interactions
with agency employees. Telephone and email inquiries, reinforced with written requests, can with agency employees. Telephone and email inquiries, reinforced with written requests, can
focus agency attention on issues raised by caseworkers and Membersfocus agency attention on issues raised by caseworkers and Members’' constituents. Casework constituents. Casework
might also prompt legislative initiatives to resolve those problems.might also prompt legislative initiatives to resolve those problems.
Caseworkers and other legislative staffers may seek to maximize service to their MemberCaseworkers and other legislative staffers may seek to maximize service to their Member’s
's constituents by reaching out to the staff of the subcommittees and committees that handle the constituents by reaching out to the staff of the subcommittees and committees that handle the
areas of concern to the Memberareas of concern to the Member’'s constituents. Through this interaction, the staff of the pertinent s constituents. Through this interaction, the staff of the pertinent
standing committee(s) can be made aware of the problems with the agency or program in standing committee(s) can be made aware of the problems with the agency or program in
question, assess how widespread and significant they are, determine their causes, and recommend question, assess how widespread and significant they are, determine their causes, and recommend
corrective action.corrective action.
Congressional Support Agencies and Offices
Many of the other agencies and offices within the legislative branch may be able to support Many of the other agencies and offices within the legislative branch may be able to support
through their work assisting in the overall operations of the House and Senate. Additional offices the overall operations of the House and Senate. Additional offices
that might play a role in oversight include, among others, the House General Counselthat might play a role in oversight include, among others, the House General Counsel’'s Office, s Office,
the House Parliamentarianthe House Parliamentarian’'s Office, the Senate Parliamentarians Office, the Senate Parliamentarian’'s Office, the House Clerks Office, the House Clerk’s
's Office, the Secretary of the SenateOffice, the Secretary of the Senate’'s Office, the Office of Senate Legal Counsel, the Senate and s Office, the Office of Senate Legal Counsel, the Senate and
House HistorianHouse Historian’'s Office, and the Senate Library.s Office, and the Senate Library.
For further detail on the role of GAO, CRS, For further detail on the role of GAO, CRS, CBOthe Congressional Budget Office (CBO), and these other offices, see , and these other offices, see "“Oversight
Information Sources andConsultantConsultative Services” " later in this report. later in this report.
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Oversight Coordination
Oversight and the Committee System A persistent challenge for Congress in conducting oversight is coordination among committees—A persistent challenge for Congress in conducting oversight is coordination among committees—
within each chamber as well as between the two houses. within each chamber as well as between the two houses.As theThe final report of the House Select final report of the House Select
Committee on Committees of the Committee on Committees of the93rd93rd Congress noted, Congress noted, “"Review findings and recommendations Review findings and recommendations
developed by one committee are seldom shared on a timely basis with another committee, and, if developed by one committee are seldom shared on a timely basis with another committee, and, if
they are made available, then often the findings are transmitted in a form that is difficult for they are made available, then often the findings are transmitted in a form that is difficult for
Members to use.Members to use.”36"38 Oversight coordination between House and Senate committees is also Oversight coordination between House and Senate committees is also
uncommon, and it occurs primarily in the aftermath of perceived major policy failures or uncommon, and it occurs primarily in the aftermath of perceived major policy failures or
prominent inter-branch conflicts, as with the Iran-Contra affair and the 9/11 terrorist attacks.prominent inter-branch conflicts, as with the Iran-Contra affair and the 9/11 terrorist attacks.
Inter-committee cooperation on oversight can be beneficial for a variety of reasons. For example, Inter-committee cooperation on oversight can be beneficial for a variety of reasons. For example,
it can help minimize unnecessary duplication and conflict and inhibit agencies from playing one it can help minimize unnecessary duplication and conflict and inhibit agencies from playing one
committee against another. There are formal and informal ways to achieve oversight coordination committee against another. There are formal and informal ways to achieve oversight coordination
among committees.
General Techniques of Encouraging Oversight Coordination
among committees.
Identifying Relevant Committee Jurisdiction
chamber to investigate matters within their respective jurisdictions. Committees undertake chamber to investigate matters within their respective jurisdictions. Committees undertake
oversight activities on their own initiativeoversight activities on their own initiative, by in the full committee the full committee, or or byin one or more one or more of its
subcommittees, and insubcommittees. In some cases they may some cases they may also coordinate their activities with other committees (for coordinate their activities with other committees (for
instance, by convening a joint hearing on a subject of mutual interest). Alternatively, to instance, by convening a joint hearing on a subject of mutual interest). Alternatively, to
supplement the existing standing committee system, the House or Senate can establish select or supplement the existing standing committee system, the House or Senate can establish select or
special committees to probe issues and agencies, promote public understanding of national special committees to probe issues and agencies, promote public understanding of national
concerns, or coordinate oversight of issues that span the concerns, or coordinate oversight of issues that span thejurisdiction of more than onejurisdictions of multiple standing committees standing
committee. Given the wide range of subjects each committee is responsible for, the creation of a . Given the wide range of subjects each committee is responsible for, the creation of a
select committee can enable greater sustained focus on a particular area of congressional concern.select committee can enable greater sustained focus on a particular area of congressional concern.
House rules also contain requirements of its standing committees to coordinate their oversight
plans and activities with one another “to the maximum extent feasible.”37 For instance, each
House committee is expected to assemble an oversight plan at the beginning of each new
Congress that documents its oversight goals for that Congress. When developing these
When developing oversight and authorization plans, plans,
committee chairs are directed committee chairs are directed“to consultto "coordinate with other committees of jurisdiction to ensure that programs and agencies are subject to routine, comprehensive authorization efforts."40 Authorization and oversight plans assembled by the House's with other committees that have jurisdiction over the
same or related laws, programs, or agencies with the objective of ensuring maximum
coordination and cooperation among committees when conducting reviews of such laws,
programs, or agencies and include in the plan an explanation of steps that have been or will be
taken to ensure such coordination and cooperation.”38 Oversight plans assembled by the House’s
standing committees are delivered to the Committee on Oversight and standing committees are delivered to the Committee on Oversight and Government Reform and are printed as Reform and are printed as
a reportreports of the Oversight and of the Oversight and Government Reform CommitteeReform Committee, along with that committee along with that committee’'s own s own
recommendations.recommendations.3941 The Senate does not have a similar requirement.
Development and Execution of Oversight Projects
Congress' The Senate does not have a similar requirement.
36 U.S. Congress, House Select Committee on Committees, Committee Reform Amendments of 1974 Part 2, Report of
the Select Committee on Committees U.S. House of Representatives to Accompany H. Res. 988 Together with
Supplemental Views, 93rd Cong., 2nd sess., March 21, 1974 (Washington: GPO, 1974), p. 68.
37 House Rule X(2)(d)(2).
38 House Rule X(2)(d)(2)(A).
39 See, for instance, U.S. Congress, Committee on Oversight and Reform, Authorization and Oversight Plan for All
House Committees, 117th Cong., 1st sess., April 2021, H.Rept. 117-17 (Washington: GPO, 2021).
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The Oversight Process in Congress
Congress’s oversight practice can range from day-to-day activities, such as assisting constituents s oversight practice can range from day-to-day activities, such as assisting constituents
in their interactions with agencies, to much more formal actions, such as impeachment in their interactions with agencies, to much more formal actions, such as impeachment
proceedings and special committees and subcommittees tasked with investigating specific proceedings and special committees and subcommittees tasked with investigating specific
issues.40
Planning for and executing oversight actions can be summarized in three questions posed below.
These questions, though not a comprehensive guide to the oversight process, succinctly describe
some of the broad contours and identify important issues that may warrant considerationissues.42
While oversight comes in a variety of forms, planning for and executing oversight actions can be laid out as a three-question process. While . While
the process outlined within these questions appears to have a beginning, a middle, and an end, the process outlined within these questions appears to have a beginning, a middle, and an end,
oversight will not always follow a clear path. It has the potential to take Congress in unexpected
directions and oversight may not always unfold in a typical, or even predictable, manner.may not always unfold in a typical, or even predictable, manner.
Question 1: Which Issues Warrant Oversight?
Any information that Members or their staff learn about activities of the executive branch might Any information that Members or their staff learn about activities of the executive branch might
become the basis for oversight. become the basis for oversight.Such information can come from a wide variety of sources and in
many forms. Congress might receive information from constituents, agency officials (who may or Congress might receive information from constituents, agency officials (who may or
may not be acting as whistleblowers), inspectors general, GAO, interest groups, or the media. may not be acting as whistleblowers), inspectors general, GAO, interest groups, or the media.
Information can also come in other forms, including congressionally mandated reports and other Information can also come in other forms, including congressionally mandated reports and other
government publications, agency responses to questions during or outside of committee hearings, government publications, agency responses to questions during or outside of committee hearings,
or personal observations of executive branch activities.or personal observations of executive branch activities.
The decision about which potential oversight matters to pursue is based on the judgment and The decision about which potential oversight matters to pursue is based on the judgment and
goals of congressional leaders, committees, and individual Members. These decisions may goals of congressional leaders, committees, and individual Members. These decisions may
include factors that are outside the scope of the include factors that are outside the scope of the Oversight Manual..4143 However, there are logistical However, there are logistical
and technical considerations that may be relevant to these discussions. Those considerations and technical considerations that may be relevant to these discussions. Those considerations
might include Congressmight include Congress’'s authority to conduct particular oversight activities, the resources s authority to conduct particular oversight activities, the resources
required to successfully complete an oversight project, and the anticipated outcome of successful required to successfully complete an oversight project, and the anticipated outcome of successful
oversight.oversight.
Authority toOversee
Conduct Oversight While CongressWhile Congress’'s authority to conduct oversight is expansive, it is not unlimited. Cases may arise s authority to conduct oversight is expansive, it is not unlimited. Cases may arise
where it is not entirely clear whether Congress has the authority to take a specific action or gather where it is not entirely clear whether Congress has the authority to take a specific action or gather
particular information. This can be a complicated question that involves contested questions of
40 Because of the variety of options available to committees and Members in the performance of their duties, the
Oversight Manual does not attempt to provide a technical set of step-by-step directions for conducting oversight. For
such a guide for investigative hearings, see Morton Rosenberg, When Congress Comes Calling: A Study on the
Principles, Practices, and Pragmatics of Legislative Inquiry (Washington, DC: Constitution Project, 2017), pp. 33-38,
https://docs.pogo.org/report/2017/POGO_TCP_When_Congress_Comes_Calling.pdf. See also Project on Government
Oversight, The Art of Congressional Oversight (Washington, DC: Project on Government Oversight, 2015),
https://docs.pogo.org/publication/2015/POGO_The-Art-of-Congressional-Oversight-Handbook.pdf?_ga=
2.251130433.657894683.1669640965-2070138599.1666618231.
41 A classic study of congressional oversight by political scientist Morris Ogul identifies seven “opportunity factors”
that impact the likelihood of oversight. In Ogul’s discussion those factors are legal authority to conduct oversight, staff
resources, the subject matter at issue, committee structure, status of the interested Members on the relevant committee,
relations with the executive branch, and the priorities of Members. Morris S. Ogul, Congress Oversees the Bureaucracy
(Pittsburgh, PA: University of Pittsburgh Press, 1976), pp. 11-22.
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particular information. This can be a complicated question that involves contested questions of law and the appropriate separation of powers.law and the appropriate separation of powers.4244 Unresolved questions about the limits of Unresolved questions about the limits of
Congress’Congress's oversight authority might not dissuade Congress from conducting oversight in those s oversight authority might not dissuade Congress from conducting oversight in those
areas. Nonetheless, understanding the issues that could arise might be useful when determining areas. Nonetheless, understanding the issues that could arise might be useful when determining
whether to proceed.whether to proceed.
Resources
Oversight has costs. Of particular importance are Oversight has costs. Of particular importance arestaff and MemberMember and staff time, both of which can be time, both of which can be
scarce resources.scarce resources.4345 Resource limitations might guide Resource limitations might guide Members and committees to choose between
differentthe decisions of Members and committees regarding potential oversight opportunities oversight opportunities orand between oversight and other between oversight and other legislative activities. Available resources may also influence the scope of particular investigations and the products they produce.
activities. These constraints are
important for Congress to carefully consider when making decisions about when and how to
conduct oversight.
Anticipated Outcome
Another practical question that might be considered is the probable outcome for a particular Another practical question that might be considered is the probable outcome for a particular
oversight action. It is not possible to know, in advance, oversight action. It is not possible to know, in advance,what will result from anthe outputs or outcomes of oversight activity. oversight activity.
With experienceWith experience, though, Members and staff may develop a strong sense of how and where oversight , Members and staff may develop a strong sense of how and where oversight
projects are likely to go and how long they might take.projects are likely to go and how long they might take.
Question 2: How to Get the Desired Information?
Once the decision to investigate a particular oversight matter has been made and goals for that Once the decision to investigate a particular oversight matter has been made and goals for that
activity activityhashave been set, it is important to formulate a plan for conducting that oversight. Such a plan been set, it is important to formulate a plan for conducting that oversight. Such a plan
does not does not necessarily have to be complex or have to be complex orformalizedtake any particular form. There are many cases when a telephone call to an . There are many cases when a telephone call to an
agency contact or identification of publicly available documents could be enough to satisfy agency contact or identification of publicly available documents could be enough to satisfy
Congress’s purposes.
Congress's oversight needs, while other matters have been litigated all the way to the Supreme Court. What Information Is Available and Who Has It?
Having identified Having identifieda specific or general goalpreliminary goals for an oversight action, it for an oversight action, it will beis useful to determine useful to determine
what relevant information may be available and which agency or official is likely to have it. For what relevant information may be available and which agency or official is likely to have it. For
instance, when investigating an allegation of mismanagement within an agency, the agencyinstance, when investigating an allegation of mismanagement within an agency, the agency’'s own s own
records and officials records and officialsmay be a primaryare likely to be a major source of information.
It might not be obvious early in the process source of information on the operations of the agency.
There are instances, however, when it might be more difficult to make these determinations. First,
it might not be obvious that certain information would be useful to Congress that certain information would be useful to Congress’'s activities even if it s activities even if it
is readily available. is readily available.SecondMoreover, it may be difficult to determine where documents or officials with , it may be difficult to determine where documents or officials with
relevant information can be found even if Congress has a good sense of the type of information it relevant information can be found even if Congress has a good sense of the type of information it
wants. This will beneeds to complete its work. This is especially true when an issue involves the activities or jurisdiction of multiple especially true when an issue involves the activities or jurisdiction of multiple
agencies. CRS is also available to assist with the identification and collection of relevant
materials.
42 See “Investigative Oversight” below.
43 See, for example, U.S. Congress, House Select Committee on the Modernization of Congress, Final Report, 116th
Cong., 2nd sess., October 2020, pp. 98-127, https://modernizecongress.house.gov/imo/media/doc/
ModernizationCommittee_10152020r1Compressed%20(newest%20gpo%20report).pdf. The select committee was re-
established for the 117th Congress and continues to conduct hearings and issue recommendations, which are available at
https://modernizecongress.house.gov/.
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agencies. The Watergate Investigation and President Nixon’'s Oval Office Tapes
Among the best known of all congressional oversight actions are the investigations of the Watergate break-in and Among the best known of all congressional oversight actions are the investigations of the Watergate break-in and
the Nixon Administration that culminated in the resignation of President Richard Nixon on August 9, 1974. The the Nixon Administration that culminated in the resignation of President Richard Nixon on August 9, 1974. The
most compelling information to come out of these investigations was taped conversations in the Oval Office most compelling information to come out of these investigations was taped conversations in the Oval Office
involving President Nixon himself. White House advisor John Dean first raised the possible existence of a taping involving President Nixon himself. White House advisor John Dean first raised the possible existence of a taping
system in the Oval Office system in the Oval Officein testimonywhile testifying before the Senate Select Committee on Presidential Campaign Activities. before the Senate Select Committee on Presidential Campaign Activities.
Committee investigative staff Committee investigative stafffol owedfollowed up on Dean up on Dean’'s comments, and another Administration official, Alexander s comments, and another Administration official, Alexander
Butterfield, confirmed the existence of the taping system. The discovery of these tapes, which played an important Butterfield, confirmed the existence of the taping system. The discovery of these tapes, which played an important
role in compelling President Nixonrole in compelling President Nixon’'s resignation, might never have occurred had Congress not already been s resignation, might never have occurred had Congress not already been
investigating the Watergate break-in.
Source: U.S. Congress, Senate Select Committee on Presidential Campaign Activities, The Final Report of the Select
Committee on Presidential Campaign Activities, committee print, 93rd Cong., 2nd sess., June 1974, S.Rept. 93-981
(Washington: GPO, 1974); and James Hamilton, The Power to Probe (New York,: Random House, 1976), pp. 23-26.
investigating the Watergate break-in.46 How Can Congress Get the Information?
Sometimes gathering information Sometimes gathering informationwill beis the biggest challenge Congress faces when conducting the biggest challenge Congress faces when conducting
oversight. Much of this oversight. Much of thisManualmanual is devoted to the variety of tools available to Congress to obtain is devoted to the variety of tools available to Congress to obtain
information even in the face of resistance from the executive branch.information even in the face of resistance from the executive branch.44
47
In many other cases, information In many other cases, information willis already already be available to Congressavailable to Congress, either because disclosure either because disclosure
is required by statute or because a federal agency, other organization, or individual has chosen to is required by statute or because a federal agency, other organization, or individual has chosen to
release the information to Congress or the public. release the information to Congress or the public.It will often be Additionally, it is often possible to obtain information possible to obtain information
via direct communication between Members or staff and agency officials. There are strong via direct communication between Members or staff and agency officials. There are strong
incentives for agencies to engage with Congress, and they may provide information upon request incentives for agencies to engage with Congress, and they may provide information upon request
in many instances.in many instances.45
48 Question 3: What Can Be Done with This Information?
Most would agree that oversight has the ability to Most would agree that oversight has the ability to “"throw light on activities of governmentthrow light on activities of government”" and and
fosters an environment of increased accountability for officials.fosters an environment of increased accountability for officials.4649 Oversight, especially oversight Oversight, especially oversight
that includes that includes“"police patrolpolice patrol”" strategies, is likely to have these benefits across the government, strategies, is likely to have these benefits across the government,
even though Congress does not have the capacity to directly monitor the activities of millions of even though Congress does not have the capacity to directly monitor the activities of millions of
federal employees and contractors.federal employees and contractors.47
50
Oversight can directly support CongressOversight can directly support Congress’'s legislative function. Oversight provides information on s legislative function. Oversight provides information on
the state of the government that can be applied when Congress makes decisions on agency the state of the government that can be applied when Congress makes decisions on agency
budgets and program authorizations and may lead to other legislation.budgets and program authorizations and may lead to other legislation.48 How the knowledge How the knowledge
gained from oversight can be applied in those other functions gained from oversight can be applied in those other functionswill dependdepends on the nature of that on the nature of that
information and the priorities and preferences of Congress.
44 For an extended discussion of how Congress can obtain information, see “Oversight Through Legislative and
Investigative Processes” and “Investigative Oversight” below.
45 See, for example, CRS Report R46061, Voluntary Testimony by Executive Branch Officials: An Introduction, by Ben
Wilhelm.
46 See U.S. Congress, House Committee on Rules, Congressional Oversight: A “How-To” Series of Workshops,
committee print, 106th Cong., 2nd sess., 2000, 63-104, pp. 11-12 (remarks by Lee Hamilton).
47 See generally McCubbins and Schwartz, “Congressional Oversight Overlooked.”
48 See, for example, Kenneth Lowande, “Who Polices the Administrative State?,” American Political Science Review,
vol. 112, no. 4 (2018), pp. 874-890.
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Oversight Through Legislative and Investigative Processes
information and the priorities and preferences of Congress. More concretely, as discussed throughout this report, oversight can lead to a variety of specific products and other outputs. While oversight questions are often resolved when congressional stakeholders receive enough information to resolve their questions or concerns, many projects lead to public-facing actions such as committee hearings, the publication of investigative reports, and legislative responses. While it is not always possible to foresee where or how far particular oversight actions will go, an understanding of the benefits, costs, advantages, and disadvantages of these options may be useful when making other decisions throughout the process.
oversight. Congress has a central role in the development of the budget, the operations of oversight. Congress has a central role in the development of the budget, the operations of
agencies and general management of the executive branch, confirmation of appointees to senior agencies and general management of the executive branch, confirmation of appointees to senior
positions across the government, andpositions across the government, and, of course, the consideration and approval of all legislation. the consideration and approval of all legislation.
The Legislative Process
While oversight is frequently considered to be While oversight is frequently considered to bea separate track of congressional activity running
adjacent to the body’s exercise ofadjacent to legislative authority, there are important ways in which the two legislative authority, there are important ways in which the two
activities overlap. Oversight, for instance, can activities overlap. Oversight, for instance, canimpact decisions on legislation by providing
information that influencesinfluence legislative priorities or legislative priorities or identifiesidentify areas of interest. In some cases, areas of interest. In some cases,
Congress establishes reporting and study requirements for GAO, inspectors general, and agencies Congress establishes reporting and study requirements for GAO, inspectors general, and agencies
that generate recommendations for agency or congressional action, which in turn provide both that generate recommendations for agency or congressional action, which in turn provide both
oversight information and ideas for potential legislation.oversight information and ideas for potential legislation.
As Congress has expanded its use of statutory tools that facilitate oversight, it has devoted more As Congress has expanded its use of statutory tools that facilitate oversight, it has devoted more
attention to developing such legislation, overseeing its implementation, and evaluating its attention to developing such legislation, overseeing its implementation, and evaluating its
effectiveness.effectiveness.49
52 The BudgetProcess50
Process53 The Congressional Budget and Impoundment Control Act of 1974,The Congressional Budget and Impoundment Control Act of 1974,5154 as amended, enhanced the as amended, enhanced the
legislative branchlegislative branch’'s capacity to shape the federal budget. The act has had major institutional and s capacity to shape the federal budget. The act has had major institutional and
procedural effects on Congress:procedural effects on Congress:
Institutionally, Congress created three new entities: the Senate Committee on , Congress created three new entities: the Senate Committee on
the Budget, the House Committee on the Budget, and the Budget, the House Committee on the Budget, and the Congressional
Budget Office.
CBO.
Procedurally, the act established methods that permit Congress to determine , the act established methods that permit Congress to determine
budget policy as a whole; relate revenue and spending decisions; determine budget policy as a whole; relate revenue and spending decisions; determine
priorities among competing national programs; and ensure that revenue, priorities among competing national programs; and ensure that revenue,
spending, and debt legislation are consistent with the overall budget policy.spending, and debt legislation are consistent with the overall budget policy.
The budget process coexists with the established authorization and appropriation procedures and The budget process coexists with the established authorization and appropriation procedures and
significantly affects each:significantly affects each:
On the On the authorization side, the , the Budget Actact requires committees to submit requires committees to submit
their budgetary their budgetary “"views and estimatesviews and estimates”" on matters under their jurisdictions to on matters under their jurisdiction to
49 One example of such legislation is the GPRA Modernization Act of 2010 (P.L. 111-352) which, among other things,
updated the system for Congress and the executive branch to identify and consider the elimination of reporting
requirements that are no longer useful. See CRS Report R42490, Reexamination of Agency Reporting Requirements:
Annual Process Under the GPRA Modernization Act of 2010 (GPRAMA), by Clinton T. Brass.
50 For a general overview of the budget process, see CRS Report 98-721, Introduction to the Federal Budget Process,
coordinated by James V. Saturno; and CRS In Focus IF11032, Budgetary Decisionmaking in Congress, by Megan S.
Lynch. CRS also reports regularly on legislative activity on the budget and appropriations as well as actions that affect
the budget process itself. See, for example, CRS Report R44874, The Budget Control Act: Frequently Asked Questions,
by Grant A. Driessen and Megan S. Lynch; and CRS Report R45552, Changes to House Rules Affecting the
Congressional Budget Process Included in H.Res. 6 (116th Congress), by James V. Saturno and Megan S. Lynch.
51 P.L. 93-344, 88 Stat. 297, codified at 2 U.S.C. §§607-688.
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the Committee on the Budget not later than six weeks after the President the Committee on the Budget not later than six weeks after the President
submits a budget or at such time that the Budget Committee might request.submits a budget or at such time that the Budget Committee might request.
On the On the appropriations side, new contract and borrowing authority must go , new contract and borrowing authority must go
through the appropriations process. Subcommittees of the Appropriations through the appropriations process. Subcommittees of the Appropriations
Committees are assigned Committees are assigneda financial financial allocation that determinesallocations that determine how much how much
may be included in the measures they report. (The tax and appropriations may be included in the measures they report. (The tax and appropriations
panels of each house also submit budgetary views and estimates to their panels of each house also submit budgetary views and estimates to their
respective Budget Committees.)respective Budget Committees.)
In deciding spending, revenue, credit, and debt issues, Congress is sensitive In deciding spending, revenue, credit, and debt issues, Congress is sensitive
to trends in the overall composition of the annual federal budget to trends in the overall composition of the annual federal budget
(expenditures for defense, entitlements, interest on the debt, and domestic (expenditures for defense, entitlements, interest on the debt, and domestic
discretionary programs).discretionary programs).52
These Budget Act55These reforms have the potential to strengthen oversight by enabling Congress to reforms have the potential to strengthen oversight by enabling Congress to
better relate program priorities to financial claims on the national budget. Each committee, better relate program priorities to financial claims on the national budget. Each committee,
knowing that it will receive a fixed amount of the total to be included in a budget resolution, has knowing that it will receive a fixed amount of the total to be included in a budget resolution, has
an incentive to scrutinize existing programs to make room for new programs or expanded funding an incentive to scrutinize existing programs to make room for new programs or expanded funding
of ongoing projects or to assess whether programs have outlived their usefulness.of ongoing projects or to assess whether programs have outlived their usefulness.
The Authorization Process
Through its authorization power, Congress exercises significant control over government Through its authorization power, Congress exercises significant control over government
agencies. The entire authorization agencies. The entire authorizationprocess53process56 may involve a host of oversight tools—hearings, may involve a host of oversight tools—hearings,
studies, and reports—but the key to the process is the studies, and reports—but the key to the process is the authorization statute..
An authorization statute creates and shapes government programs and agencies, and it contains An authorization statute creates and shapes government programs and agencies, and it contains
the statement of legislative policy for the agency. Authorization is the the statement of legislative policy for the agency. Authorization is thefirstfirst lever in congressional lever in congressional
exercise of the power of the purse. It usually allows an agency to be funded, but it does exercise of the power of the purse. It usually allows an agency to be funded, but it doesnot
not guarantee financing of agencies and programs. Frequently, authorizations establish dollar ceilings guarantee financing of agencies and programs. Frequently, authorizations establish dollar ceilings
on the amounts that can be appropriated.on the amounts that can be appropriated.
The authorization-reauthorization process is a significant oversight tool. Through this process, The authorization-reauthorization process is a significant oversight tool. Through this process,
Members can become informed about the work of an agency and are given an opportunity to Members can become informed about the work of an agency and are given an opportunity to
direct the agencydirect the agency’'s effort.s effort.54
57
Expiration of an agencyExpiration of an agency’'s program can provide an opportunity for in-depth oversight. In recent s program can provide an opportunity for in-depth oversight. In recent
decades, there has been a mix of permanent authorizations—which do not require regular decades, there has been a mix of permanent authorizations—which do not require regular
reauthorization legislation—and periodic authorizations, which can be annual or multiyear. reauthorization legislation—and periodic authorizations, which can be annual or multiyear.
Periodic reauthorizations increase the likelihood that an agency will be scrutinized systematically. Periodic reauthorizations increase the likelihood that an agency will be scrutinized systematically.
An agencyAn agency’'s understanding that it must come to the legislative committee for renewed authority s understanding that it must come to the legislative committee for renewed authority
increases the influence of the committee. This condition helps to account for the appeal of short-increases the influence of the committee. This condition helps to account for the appeal of short-
term authorizations.
52 See, for example, CRS Report R45941, The Annual Sequester of Mandatory Spending through FY2029, by Charles
S. Konigsberg; and CRS Insight IN11148, The Bipartisan Budget Act of 2019: Changes to the BCA and Debt Limit, by
Grant A. Driessen and Megan S. Lynch.
53 See CRS Report R46497, Authorizations and the Appropriations Process, by James V. Saturno.
54 For an illustration of the authorization process serving as a tool to conduct oversight and inform policy decisions, see
CRS Report R46107, FY2020 National Defense Authorization Act: Selected Military Personnel Issues, coordinated by
Bryce H. P. Mendez.
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term authorizations. The Congressional Budget Office’s “'s "Unauthorized Appropriations and Expiring
Authorizations” Report
Authorizations" Report
One resource that may be useful for determining potential oversight targets is One resource that may be useful for determining potential oversight targets is the CBO’CBO's annual report s annual report Expired
and Expiring Authorizations of Appropriations. By law, CBO is required to annually submit a report to Congress listing . By law, CBO is required to annually submit a report to Congress listing
programs and activities funded during that fiscal year that do not have programs and activities funded during that fiscal year that do not havean enacted enacted authorizationauthorizations and do not have and do not have
an authorizationauthorizations enacted for the next fiscal year. enacted for the next fiscal year.
In addition to formal amendment of the agency’s authorizing statute
gives committees an opportunity to exercise informal, nonstatutory controls over the agency. gives committees an opportunity to exercise informal, nonstatutory controls over the agency.
Nonstatutory controls used by committees to exercise direction over the administration of laws used by committees to exercise direction over the administration of laws
include statements made in:include statements made in:
committee hearings,
committee hearings,
committee reports accompanying legislation,committee reports accompanying legislation,
floor debate, andfloor debate, and
contacts and correspondence with the agency.contacts and correspondence with the agency.
If agencies fail to comply with these informal directives, the authorization committees can apply If agencies fail to comply with these informal directives, the authorization committees can apply
sanctions or move to convert the informal directive to a statutory command.sanctions or move to convert the informal directive to a statutory command.
The Appropriations Process
The appropriations process is among CongressThe appropriations process is among Congress’'s most significant forms of oversight. Its strategic s most significant forms of oversight. Its strategic
position stems from the constitutional requirement that position stems from the constitutional requirement that“"no Money shall be drawn from the no Money shall be drawn from the
Treasury, but in Consequence of Appropriations made by Law.Treasury, but in Consequence of Appropriations made by Law.”55"58 This This “"power of the pursepower of the purse”
" allows the House and Senate Committees on Appropriations to play a prominent role in oversight.allows the House and Senate Committees on Appropriations to play a prominent role in oversight.
The oversight function of the Committees on Appropriations derives from their responsibility to The oversight function of the Committees on Appropriations derives from their responsibility to
examine the budget requests of the agencies as contained in the Presidentexamine the budget requests of the agencies as contained in the President’'s budget. The decisions s budget. The decisions
of the committees are conditioned on their of the committees are conditioned on theirassessmentassessments of the agencies of the agencies’' need for their budget need for their budget
requests as indicated by past performance. In practice, the entire record of an agency is fair game requests as indicated by past performance. In practice, the entire record of an agency is fair game
for the required assessment. This comprehensive overview and the for the required assessment. This comprehensive overview and the“"carrot and stickcarrot and stick”" of of
appropriations recommendations (i.e., the authority of the committees to withhold or reduce appropriations recommendations (i.e., the authority of the committees to withhold or reduce
appropriations to uncooperative agencies) make the committees significant focal points of appropriations to uncooperative agencies) make the committees significant focal points of
congressional oversight and are a key source of their power in Congress and in the federal congressional oversight and are a key source of their power in Congress and in the federal
government generally.government generally.56
59
Enacted appropriations legislation frequently contains at least five types of Enacted appropriations legislation frequently contains at least five types of statutory controls on on
agencies:agencies:
1. 1. It specifies the It specifies the purpose for which funds may be used. for which funds may be used.
2.
2. It defines the specified It defines the specified funding level for the agency as a whole as well as for for the agency as a whole as well as for
programs and divisions within the agency.programs and divisions within the agency.
3.
3. It sets It sets time limits on the availability of funds for obligation. on the availability of funds for obligation.
55 U.S. Const. art. I, §9, cl. 17. For a more detailed discussion of Congress’s appropriations power, see CRS Report
R46417, Congress’s Power Over Appropriations: Constitutional and Statutory Provisions, by Sean M. Stiff.
56 See, for example, CRS Report R46061, Voluntary Testimony by Executive Branch Officials: An Introduction, by Ben
Wilhelm.
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4.
4. It may contain It may contain limitation provisions. For example, in Division A of the provisions. For example, in Division A of the
Consolidated Appropriations Act for FY2022,Consolidated Appropriations Act for FY2022,5760 Congress included the following Congress included the following
condition: condition:“"None of the funds appropriated or otherwise made available by this None of the funds appropriated or otherwise made available by this
Act may be used for first-class travel by the employees or agencies funded by Act may be used for first-class travel by the employees or agencies funded by
this Act in contravention of sections 301-10.122 through 301-10.124 of title 41, this Act in contravention of sections 301-10.122 through 301-10.124 of title 41,
Code of Federal Regulations.Code of Federal Regulations.”58
5. "61
5. It may stipulate how an agencyIt may stipulate how an agency’'s budget can be s budget can be reprogrammed (shifting funds (shifting funds
within an appropriations account) or within an appropriations account) or transferred (shifted between appropriations (shifted between appropriations
accounts).accounts).
Nonstatutory controls are a major form of oversight. Committee expectations and requirements are a major form of oversight. Committee expectations and requirements
may be conveyed through committee reportsmay be conveyed through committee reports and in, hearings, letters to agency heads, and other hearings, letters to agency heads, and other
communications. Agencies are not legally obligated to abide by nonstatutory recommendations, communications. Agencies are not legally obligated to abide by nonstatutory recommendations,
but failure to do so may result in a loss of funds and flexibility the following year.but failure to do so may result in a loss of funds and flexibility the following year.
An Example of Nonstatutory Control of Agency Appropriations
The conference report for the third Consolidated Appropriations Act for FY2019 (P.L. 116-6) includes the The conference report for the third Consolidated Appropriations Act for FY2019 (P.L. 116-6) includes the
fol owingfollowing directive: directive:
Paper Reduction Efforts.—The Conferees urge the Department of the Interior, EPA, Forest Service, .—The Conferees urge the Department of the Interior, EPA, Forest Service,
and Indian Health Service to work with the Office of Management and Budget to reduce printing and Indian Health Service to work with the Office of Management and Budget to reduce printing
and reproduction costs and direct each agency to report to the Committees within 90 days of and reproduction costs and direct each agency to report to the Committees within 90 days of
enactment of this Act on steps being undertaken to achieve this goal and how much each agency enactment of this Act on steps being undertaken to achieve this goal and how much each agency
expects to save by implementing these measures.59
The Investigatory Process
Congress’s power to investigate is implied in the Constitution. Numerous Supreme Court
decisions have upheld the legislative branch’s right of inquiry, provided it stays within its
legitimate legislative sphere.60 The roots of Congress’s authority to conduct investigations extend
back to the British Parliament and the colonial assemblies.61 In addition, for its impeachment
power, the House of Representatives has been described as the “grand inquest of the nation.”62
Since the Framers expected lawmakers to employ the investigatory function, based upon
parliamentary precedents, it was seen as unnecessary to invest Congress with an explicit
investigatory power.63
Investigations and related activities may be conducted by:
individual Members,
57 The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act for
FY2022.
58 P.L. 117-103, Division A, §710.
59 U.S. Congress, House Conference Committee, Making Further Continuing Appropriations for the Department of
Homeland Security for Fiscal Year 2019, And for Other Purposes, Conference Report to Accompany H.J. Res. 31,
116th Cong., 1st sess., February 13, 2019, H.Rept. 116-9 (Washington: GPO, 2019), p. 707.
60 See “Congress as an Oversight Body” below.
61 See Marshall Edward Dimock, Congressional Investigating Committees (Baltimore: Johns Hopkins Press, 1929), pp.
46-56.
62 See generally William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and
President Andrew Johnson (New York: William Morrow, 1992).
63 See, for example, McGrain v. Daugherty, 273 U.S. 135, 161 (1927).
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committees and subcommittees,
staff or outside organizations and personnel under contract, or
congressional support agencies such as GAO and CRS.
Investigations may serve several purposes:
They can help to ensure honesty and efficiency in the administration of laws.
They can secure information that assists Congress in making informed policy
judgments.
They may aid in informing the public about the administration of laws.
expects to save by implementing these measures.62 The Confirmation Process
By establishing a public record of the policy views of nominees, congressional hearings allow By establishing a public record of the policy views of nominees, congressional hearings allow
lawmakers to call appointed officials to account at a later time. Since at least the Ethics in lawmakers to call appointed officials to account at a later time. Since at least the Ethics in
Government Act of 1978,Government Act of 1978,6463 which encouraged greater scrutiny of nominations, Senate committees which encouraged greater scrutiny of nominations, Senate committees
have set aside more time to probe the qualifications, independence, and policy views of have set aside more time to probe the qualifications, independence, and policy views of
presidential nominees, seeking information on everything from their physical health to their presidential nominees, seeking information on everything from their physical health to their
financial assets. The confirmation process can assist in oversight in at least three ways:financial assets. The confirmation process can assist in oversight in at least three ways:
1. 1. The Constitution provides that the President The Constitution provides that the President “"shall nominate, and by and with the shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors, other public , shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the Ministers and Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided for, and United States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law.which shall be established by Law.”65"64 The consideration of appointments to The consideration of appointments to
executive branch leadership positions is a major responsibility of the Senate and executive branch leadership positions is a major responsibility of the Senate and
especially of Senate committees, which review and hold hearings regarding the especially of Senate committees, which review and hold hearings regarding the
qualifications of nominees.qualifications of nominees.
2.
2. Confirmation hearings serve as an opportunity for senatorial oversight and Confirmation hearings serve as an opportunity for senatorial oversight and
influenceinfluence beyond the consideration of a nominee's qualifications and vision, providing a forum for the discussion of the policies and programs , providing a forum for the discussion of the policies and programs the
nominee intends to pursuethat would be under the nominee's purview. The confirmation process as an oversight tool can be . The confirmation process as an oversight tool can be
used to provide policy direction to nominees, inform nominees of congressional used to provide policy direction to nominees, inform nominees of congressional
interests, and seek commitments on future behavior.interests, and seek commitments on future behavior.
3.
3. Once the Senate has confirmed a nominee, oversight includes following up to Once the Senate has confirmed a nominee, oversight includes following up to
ensure that the nominee fulfills any commitments made during confirmation ensure that the nominee fulfills any commitments made during confirmation
hearings. Subsequent hearings and committee investigations can explore whether hearings. Subsequent hearings and committee investigations can explore whether
such commitments have been kept.such commitments have been kept.
The President The President also has authority regarding a number of otherhas alternative authority to make appointments that do not require the advice and appointments that do not require the advice and
consent of the Senate, including, under certain circumstances, recess consent of the Senate, including, under certain circumstances, recessappointments66appointments65 and and
designations under the Vacancies Act.67
64 P.L. 95-521, 92 Stat. 1824, codified at 5 U.S.C. App. §§101 et seq.
65 U.S. Const. art. II, §2, cl. 2 (emphasis added).
66 U.S. Const. art. II, §2, cl. 3. For more information on recess appointments, see CRS Report R44997, The Vacancies
Act: A Legal Overview, by Valerie C. Brannon.
67 5 U.S.C. §§3345 et seq. For more information on the Vacancies Act, see CRS Report RS21412, Temporarily Filling
Presidentially Appointed, Senate-Confirmed Positions, by Henry B. Hogue.
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designations under the Vacancies Act.66 The Impeachment Process
The impeachment power is a unique The impeachment power is a uniqueoversight tool available to Congresstool available to Congress under the Constitution. Impeachment applies to . Impeachment applies to
the President, the President, the Vice President, and other federal civil officers in the executive and judicial Vice President, and other federal civil officers in the executive and judicial
branches.branches.6867 Impeachment offers Congress: Impeachment offers Congress:
an auxiliary constitutional method for obtaining information that might an auxiliary constitutional method for obtaining information that might
otherwise not be made available andotherwise not be made available and
an implied threat of removal for an official whose conduct exceeds an implied threat of removal for an official whose conduct exceeds
acceptable boundaries.acceptable boundaries.
Impeachment procedures differ from those of conventional congressional oversight. The most Impeachment procedures differ from those of conventional congressional oversight. The most
significant procedural differences center on the significant procedural differences center on the roles played by each house of Congress. The played by each house of Congress. The
House of Representatives has the sole power to impeach.House of Representatives has the sole power to impeach.6968 A simple majority is needed in the A simple majority is needed in the
House to approve articles of impeachment. The Senate has the sole power to try an House to approve articles of impeachment. The Senate has the sole power to try an
impeachment.impeachment.7069 A two-thirds majority is required in the Senate to convict and remove the A two-thirds majority is required in the Senate to convict and remove the
individual from office. Should the Senate deem it appropriate in a given case, it may, by majority individual from office. Should the Senate deem it appropriate in a given case, it may, by majority
vote, impose an additional judgment of disqualification from holding further federal offices of vote, impose an additional judgment of disqualification from holding further federal offices of
honor, trust, or profit.honor, trust, or profit.71
70
The impeachment process is infrequently used. The House has voted to impeach The impeachment process is infrequently used. The House has voted to impeach in 20 cases.officials in at least 22 cases.71 The The
Senate has voted to convict in eight cases, all pertaining to federal judges.Senate has voted to convict in eight cases, all pertaining to federal judges.72 The most recent The most recent
executive impeachment trial was that of executive impeachment trial was that ofPresident Donald Trump in 2021Department of Homeland Security Secretary Alejandro Mayorkas in 2024, and the most recent , and the most recent
judicial impeachment trial was that of U.S. District Court Judge G. Thomas Porteous Jr. in 2010. judicial impeachment trial was that of U.S. District Court Judge G. Thomas Porteous Jr. in 2010.
A number of constitutional and procedural issues were addressed in the impeachment A number of constitutional and procedural issues were addressed in the impeachmenttrialtrials of of
President Bill Clinton and President Bill Clinton andother modern impeachment proceedingsPresident Donald Trump, although the answers to some , although the answers to some
of these questions remain ambiguous. For example:of these questions remain ambiguous. For example:
The impeachment process has been continued from one Congress to the The impeachment process has been continued from one Congress to the
next,72next,73 although the procedural steps vary depending upon the stage in the although the procedural steps vary depending upon the stage in the
process.process.
The Constitution defines the grounds for impeachment as The Constitution defines the grounds for impeachment as “"Treason, Bribery, Treason, Bribery,
or other high Crimes and Misdemeanors.or other high Crimes and Misdemeanors.”73"74 However, the meaning and scope However, the meaning and scope
of of high Crimes and Misdemeanors remains in some dispute and depends on remains in some dispute and depends on
the interpretation of individual legislators.74
68 U.S. Const. art. II, §4. See CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd
Garvey.
69 U.S. Const. art. II, §2, cl. 5. See CRS Report R45769, The Impeachment Process in the House of Representatives, by
Elizabeth Rybicki and Michael Greene.
70 U.S. Const. art. II, §3, cl. 7. See CRS Report R46185, The Impeachment Process in the Senate, by Elizabeth Rybicki
and Michael Greene.
71 While the Constitution does not speak to the vote threshold necessary for disqualification, this has been the practice
of the Senate across history. See CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd
Garvey at 14-15.
72 For example, the House of Representatives impeached President Clinton on December 19, 1998, near the conclusion
of the 105th Congress. Shortly after the 106th Congress convened on January 3, 1999, the Senate conducted a trial.
73 U.S. Const. art. II, §4.
74 CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd Garvey.
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the interpretation of individual legislators.75
The Constitution provides for impeachment of the The Constitution provides for impeachment of the “"President, Vice President, President, Vice President,
and all civil Officers of the United States.and all civil Officers of the United States.”75"76 While the outer limit of the While the outer limit of the
“"civil Officerscivil Officers”" language is not altogether clear, past precedents suggest that language is not altogether clear, past precedents suggest that
it covers at least federal judges and senior executive officers.it covers at least federal judges and senior executive officers.
Investigative Oversight76
Investigative Oversight77 This section provides an overview of some of the more common legal issues that committees may This section provides an overview of some of the more common legal issues that committees may
face in the course of conducting oversight and investigations. It begins by briefly describing the face in the course of conducting oversight and investigations. It begins by briefly describing the
historical development of the legislative historical development of the legislative“"power of inquirypower of inquiry”" and follows with a general summary and follows with a general summary
of Congressof Congress’'s authority under the U.S. Constitution to perform oversight and investigations. It s authority under the U.S. Constitution to perform oversight and investigations. It
then discusses the legal tools commonly used by congressional committees in conducting that then discusses the legal tools commonly used by congressional committees in conducting that
oversight as well as the mechanisms used by Congress to enforce its demands for information. oversight as well as the mechanisms used by Congress to enforce its demands for information.
The section then briefly discusses possible legal limitations on the investigative power, including The section then briefly discusses possible legal limitations on the investigative power, including
those arising from the Constitution, common law, and statutory restrictions.those arising from the Constitution, common law, and statutory restrictions.
Historical Background
The rich and varied history of legislative investigations, which can be traced from the English The rich and varied history of legislative investigations, which can be traced from the English
Parliament to American colonial legislatures and through to the U.S. Congress, has played a Parliament to American colonial legislatures and through to the U.S. Congress, has played a
leading role in establishing the nature and contours of the congressional leading role in establishing the nature and contours of the congressional“"power of inquiry.power of inquiry.”77
"78 This history supports the unmistakable conclusion that the power to investigate has long been This history supports the unmistakable conclusion that the power to investigate has long been
considered an essential attribute of legislative bodies.considered an essential attribute of legislative bodies.
It is difficult to identifyIt is difficult to identify, at least with precision with precision, the emergence of Parliament the emergence of Parliament’'s protean s protean
investigatory powers. By the early 17th century however, Parliament had apparently recognized its investigatory powers. By the early 17th century however, Parliament had apparently recognized its
power to investigate by requiring—on a case-by-case basis—the attendance of witnesses and the power to investigate by requiring—on a case-by-case basis—the attendance of witnesses and the
production of documents in furtherance of the bodyproduction of documents in furtherance of the body’s “'s "duty to inquire into every Step of publick duty to inquire into every Step of publick
management….”78management.... "79 These early investigations carried out by parliamentary committees focused on These early investigations carried out by parliamentary committees focused on
the kingthe king’'s ministers, in order to oversee their execution of the law, as well as private parties.s ministers, in order to oversee their execution of the law, as well as private parties.7980 As As
the gathering the gathering of information relating to both the passage of new laws and the administration of information relating to both the passage of new laws and the administration of
existing laws became seen as an essential ingredient of the legislative process, compulsory existing laws became seen as an essential ingredient of the legislative process, compulsory
investigatory powers were provided on a more general and permanent basis to established investigatory powers were provided on a more general and permanent basis to established
parliamentary committees of inquiry.parliamentary committees of inquiry.8081 This overarching historical notion of the power of inquiry This overarching historical notion of the power of inquiry
as a necessary component of the legislative power was transported to America, where it was
75 U.S. Const. art. II, §4.
76 This report is not intended to address all the legal issues that committees, Members, and staff may encounter when
engaged in investigative activities. Legal questions on Congress’s investigatory powers should be directed to CRS
legislative attorneys.
77 See Barenblatt v. United States, 360 U.S. 109, 111 (1959) (“The power of inquiry has been employed by Congress
throughout our history, over the whole range of the national interests concerning which Congress might legislate or
decide upon due investigation not to legislate….”).
78 13 R. CHANDLER, HISTORY & PROCEEDINGS OF THE HOUSE OF COMMONS 172 (1743); ERNEST J. EBERLING,
CONGRESSIONAL INVESTIGATIONS: A STUDY OF THE ORIGIN AND DEVELOPMENT OF THE POWER OF CONGRESS TO
INVESTIGATE AND PUNISH FOR CONTEMPT 34 (1928) (noting that Parliament viewed the subpoena power as “too serious
a matter for general delegation”).
79 James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153,
161-62 (1926).
80 Id. at 163-64.
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as a necessary component of the legislative power was transported to America, where it was incorporated into the practice of colonial governments and, after independence, to U.S. state incorporated into the practice of colonial governments and, after independence, to U.S. state
governments.governments.81
82
The Constitutional Convention saw almost no discussion of CongressThe Constitutional Convention saw almost no discussion of Congress’'s power to conduct s power to conduct
oversight and investigations, although individual oversight and investigations, although individualMembersmembers of the convention appear to have of the convention appear to have
understood Congress to clearly possess understood Congress to clearly possess“inquisitorial” powers.82"inquisitorial" powers.83 A proposal to explicitly provide A proposal to explicitly provide
Congress with the power to punish for Congress with the power to punish forcontempts, contempt—a power Parliament often used as a means to a power Parliament often used as a means to
effectuate its investigatory powerseffectuate its investigatory powers, —was made but not acted upon.was made but not acted upon.8384 Nevertheless, it is likely that Nevertheless, it is likely that
the general view was that no express enumeration of the power of inquiry or the power to punish the general view was that no express enumeration of the power of inquiry or the power to punish
for contempt was considered necessary because the Framersfor contempt was considered necessary because the Framers’' conception of legislative power, conception of legislative power,
based on centuries of consistent practice by both Parliament and colonial legislatures, included based on centuries of consistent practice by both Parliament and colonial legislatures, included
the ability to gather information relevant to the conduct of the House and Senatethe ability to gather information relevant to the conduct of the House and Senate’'s legislative s legislative
functions.functions.8485 As one scholar has put it, the contemporary understanding of legislative power at the As one scholar has put it, the contemporary understanding of legislative power at the
time of the adoption of the Constitution time of the adoption of the Constitution“"possessed a content sufficiently broad to include the use possessed a content sufficiently broad to include the use
of committees of inquiry with powers to send for persons and paper.of committees of inquiry with powers to send for persons and paper.”85
"86
Long-standing and unbroken congressional practice confirms this view. Congress has exhibited a Long-standing and unbroken congressional practice confirms this view. Congress has exhibited a
robust view of its own investigatory powers from robust view of its own investigatory powers fromthe veryits outset, especially in regard to the outset, especially in regard to the
legislature’legislature's role in overseeing the administration of government.s role in overseeing the administration of government.8687 During the First Congress, the During the First Congress, the
House appointed five Members to investigate Senator Robert MorrisHouse appointed five Members to investigate Senator Robert Morris’'s prior activities as s prior activities as
superintendent of finance under the Articles of Confederation.superintendent of finance under the Articles of Confederation.8788 The House later established The House later established the
firsta special investigating committee in 1792 for the purpose of inquiring into Major General special investigating committee in 1792 for the purpose of inquiring into Major General
Arthur St. ClairArthur St. Clair’'s disastrous military excursion into the Northwest Territory in which nearly 700 s disastrous military excursion into the Northwest Territory in which nearly 700
federal troops were killed by the Western Confederacy of American Indians.federal troops were killed by the Western Confederacy of American Indians.88 The mere 89 The act of act of
authorizing such a committee set an important precedent in that adoption of the resolution was authorizing such a committee set an important precedent in that adoption of the resolution was
preceded by a debate over whether it was appropriate, and indeed constitutional, for the House to
81 Id. at 165-168 (highlighting examples of colonial and state legislatures engaging in investigations). While English
Parliamentary practice often informs the powers of Congress, it is clear that the usefulness of parliamentary precedents
in defining Congress’s investigatory powers is somewhat limited due to significant distinctions between the two
legislative bodies. As the Supreme Court has repeatedly suggested, Parliament’s investigatory and contempt powers
were derived from the bodies’ authority to exercise a “blend[]” of both legislative and judicial powers. Marshall v.
Gordon, 243 U.S. 521, 533 (1917) (concluding that the English contempt power “rested upon an assumed blending of
legislative and judicial authority possessed by the Parliament”). Congress, under the separation of powers doctrine,
exercises no judicial power. Kilbourn, 103 U.S. at 192 (1880) (suggesting that “no judicial power is vested in the
Congress”). Thus, unlike Parliament, any authority to investigate and subsequently enforce its orders must rest solely
on legislative authority provided to the body by the Constitution.
82 See e.g., 2 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 206 (1937) (remarks of George
Mason) (Members of Congress “are not only Legislators but they possess inquisitorial powers. They must meet
frequently to inspect the Conduct of the public offices”); JAMES WILSON 3 THE WORKS OF THE HONOURABLE JAMES
WILSON 219 (1804) (noting the traditional power of legislators to act as “grand inquisitors of the realm”).
83 See 2 FARRAND, supra note 61, at 340; JOSH CHAFETZ, CONGRESS’S CONSTITUTION: LEGISLATIVE AUTHORITY AND THE
SEPARATION OF POWERS 171 (2017).
84 Landis, supra note 58, at 169-70.
85 Id. at 169.
86 Hannah v. Larche, 363 U.S. 420, 444, 80 S. Ct. 1502, 1516 (1960) (“The investigative function of [legislative]
committees is as old as the Republic.”); EBERLING, supra note 57, at 33.
87 2 ANNALS OF CONG. 1514 (1790); DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD,
1789-1801 20 (1997) (“Thus, within a year of its first meeting, in the face of an explicit constitutional challenge, the
House of Representatives flatly asserted a broad power to investigate the conduct of a former executive …”).
88 TELFORD TAYLOR, GRAND INQUEST: THE STORY OF CONGRESSIONAL INVESTIGATIONS 17-19 (1974).
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preceded by a debate over whether it was appropriate—and constitutional—for the House to investigate the matter or whether it was preferable to urge the President to carry out the inquiry.investigate the matter or whether it was preferable to urge the President to carry out the inquiry.89
90 Although some asserted that the House lacked authority to inquire into executive operations, that Although some asserted that the House lacked authority to inquire into executive operations, that
position was defeated, and the investigating committee was established with clear authority to position was defeated, and the investigating committee was established with clear authority to
“"call for such persons, papers and records as may be necessary to assist their inquiries.call for such persons, papers and records as may be necessary to assist their inquiries.”90
"91
The investigation itself also established important precedents for CongressThe investigation itself also established important precedents for Congress’'s authority to gather s authority to gather
information from the executive branch, including in relation to sensitive military matters. After information from the executive branch, including in relation to sensitive military matters. After
some discussion within Washingtonsome discussion within Washington’'s Cabinet of the Presidents Cabinet of the President’'s authority to withhold requested s authority to withhold requested
information from Congress, the special committee obtained documents from both the War information from Congress, the special committee obtained documents from both the War
Department and the Treasury Department as well as testimony from Cabinet officials Henry Knox Department and the Treasury Department as well as testimony from Cabinet officials Henry Knox
and Alexander Hamilton.and Alexander Hamilton.91
92
Congress also acted swiftly to use federal law and internal rules to strengthen its investigatory Congress also acted swiftly to use federal law and internal rules to strengthen its investigatory
powers. In 1798, Congress enacted a statute recognizing its powers to not only obtain evidence powers. In 1798, Congress enacted a statute recognizing its powers to not only obtain evidence
through testimony but to do so from witnesses under oath.through testimony but to do so from witnesses under oath.9293 The statute specifically authorized The statute specifically authorized
the President of the Senate, the Speaker of the House, and a chair of a select committee to the President of the Senate, the Speaker of the House, and a chair of a select committee to
administer oaths to witnesses testifying before Congress.administer oaths to witnesses testifying before Congress.9394 During this same time period, both the During this same time period, both the
House and House and the Senate began to delegate to ad hoc select committees the authority to call for papers or Senate began to delegate to ad hoc select committees the authority to call for papers or
persons. Committee investigations have continued apace to the modern day, representing a persons. Committee investigations have continued apace to the modern day, representing a
pervasive and nearly ubiquitous aspect of the legislative function,pervasive and nearly ubiquitous aspect of the legislative function,9495 as has Congress as has Congress’'s use of s use of
statutory provisions and internal chamber rules to support committee investigations. The statutory provisions and internal chamber rules to support committee investigations. The
investigatory power is therefore thoroughly rooted in history and stands on an equal footing with investigatory power is therefore thoroughly rooted in history and stands on an equal footing with
Congress’Congress's other legislative powers.s other legislative powers.95
96 Constitutional Authority to Conduct Oversight and
Investigative Inquiries
Although the Although the“"power of inquirypower of inquiry”" was not expressly provided for in the Constitution, the Supreme was not expressly provided for in the Constitution, the Supreme
Court has nonetheless described investigations as so central to the legislative function as to be Court has nonetheless described investigations as so central to the legislative function as to be
implicit in Article Iimplicit in Article I’'s vesting of s vesting of “"legislative Powerslegislative Powers”" in the Congress. in the Congress.9697 In the seminal case of In the seminal case of
McGrain v. Daugherty, a unanimous Supreme Court declared that , a unanimous Supreme Court declared that“"the power of inquiry—with the power of inquiry—with
process to enforce it—is an essential and appropriate auxiliary to the legislative function.process to enforce it—is an essential and appropriate auxiliary to the legislative function.”97
"98 Congressional investigations are therefore properly characterized as an implied constitutional power of Congress.99 It is a power that serves both toCongressional investigations are therefore properly characterized as an implied constitutional
89 See 3 ANNALS OF CONG. 490-94 (1792).
90 TAYLOR, supra note 67, at 22.
91 Id. at 23-24.
92 Act of May 3, 1798, ch. 36, 1 STAT. 554.
93 Id. The power to administer oaths was expanded to all standing committee chairs in 1817. Act of Feb. 8, 1817, ch.
10, 3 STAT. 345. See also McGrain, 273 U.S. at 167.
94 See Watkins v. United States, 354 U.S. 178, 200 n.33 (1957) (noting that Congress has “assiduously” performed
oversight “[f]rom the earliest times in its history”).
95 Watkins, 354 U.S. at 187; WOODROW WILSON, CONGRESSIONAL GOVERNMENT 303 (15th ed. 1913) (asserting that the
“informing function of Congress should be preferred even to its legislative function”). See also J. William Fulbright,
Congressional Investigations: Significance for the Legislative Process, 18 U. CHI. L. REV. 440, 441 (1951) (describing
the power of investigation as “perhaps the most necessary of all the powers underlying the legislative function”).
96 Watkins, 354 U.S. at 187 (“The power of the Congress to conduct investigations is inherent in the legislative
process.”).
97 See McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
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power of Congress.98 It is a power that serves to both ensure that Congress can make effective ensure that Congress can make effective
and informed legislative decisions and to check executive power, thereby sustaining Congressand informed legislative decisions and to check executive power, thereby sustaining Congress’s
's role in the United Statesrole in the United States’' constitutional scheme of separated powers. constitutional scheme of separated powers.99
100
This power to gather information related to the legislative function is both critical in purpose, as This power to gather information related to the legislative function is both critical in purpose, as
Congress Congress“"cannot legislate wisely or effectively in the absence of information,cannot legislate wisely or effectively in the absence of information,”" and extensive in and extensive in
scope, as Congress is empowered to obtain pertinent testimony and documents through scope, as Congress is empowered to obtain pertinent testimony and documents through
investigations into nearly any matter properly before the body.investigations into nearly any matter properly before the body.100101 In In Eastland v. United States
Servicemen’'s Fund, for instance, the Supreme Court stated that the , for instance, the Supreme Court stated that the “"scope of scope of its[Congress's] power of inquiry power of inquiry
…... is as penetrating and far-reaching as the potential power to enact and appropriate under the is as penetrating and far-reaching as the potential power to enact and appropriate under the
Constitution.Constitution.”101"102 Similarly, in Similarly, in Watkins v. United States, the Court emphasized that the , the Court emphasized that the “"power of power of
the Congress to conduct investigations is inherent in the legislative process.the Congress to conduct investigations is inherent in the legislative process.”102 “"103 "That power,That power,”" the the
Court established, Court established,“"is broadis broad”" and and “"encompasses inquiries concerning the administration of encompasses inquiries concerning the administration of
existing laws as well as proposed or possibly needed statutesexisting laws as well as proposed or possibly needed statutes”103"104 and and “"comprehends probes into comprehends probes into
departments of the federal government to expose corruption, inefficiency, or waste.departments of the federal government to expose corruption, inefficiency, or waste.”104"105 Included Included
within the scope of the power is the authority to initiate investigations, hold hearings, request within the scope of the power is the authority to initiate investigations, hold hearings, request
testimony or documents from witnesses, andtestimony or documents from witnesses, and, —in situations where either a government or private in situations where either a government or private
party is not forthcomingparty is not forthcoming, —compel compliance with congressional requests through the issuance compel compliance with congressional requests through the issuance
and enforcement of subpoenas.and enforcement of subpoenas.105
106
The Supreme Court most recently reaffirmed both the importance and breadth of CongressThe Supreme Court most recently reaffirmed both the importance and breadth of Congress’s
's investigatory power in investigatory power in Trump v. Mazars..106107 There, the Court observed There, the Court observed that “[w]ithout, "Without information, information,
Congress would be shooting in the dark, unable to legislate Congress would be shooting in the dark, unable to legislate‘'wisely or effectively.wisely or effectively.’”'"108 As such, As such,
Congress’Congress's investigatory powers must be understood to include s investigatory powers must be understood to include “"inquiries into the administration of existing laws, studies of proposed laws, and 'inquiries into the administration
98 Id.; Watkins, 354 U.S. at 197 (concluding that the investigative power is “justified solely as an adjunct to the
legislative process”). Although the Supreme Court has at times referred to the investigative power as an “inherent”
power, id. at 187, it is perhaps more accurate to refer to it as an implied power. While an inherent power may not be
tethered to a textual grant of authority, an implied power is derived by implication from an enumerated power. See
Scott C. Idleman, The Emergence of Jurisdictional Resequencing in the Federal Courts, 87 CORNELL L. REV. 1, 42–43
(2001).
99 Quinn v. United States, 349 U.S. 155, 160-61 (1955) (“Without the power to investigate—including of course the
authority to compel testimony, either through its own processes or through judicial trial—Congress could be seriously
handicapped in its efforts to exercise its constitutional function wisely and effectively.”) (citations omitted).
100 McGrain, 273 U.S. at 175 (“A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not
itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess
it.”). Congress’s oversight function is subject to a variety of legal limitations. See Eastland v. United States
Servicemen’s Fund, 421 U.S. 491, 504 n.15 (1975) (“Although the power to investigate is necessarily broad it is not
unlimited…. We have made it clear [] that Congress is not invested with a ‘general’ power to inquire into private
affairs.’ The subject of any inquiry always must be one ‘on which legislation could be had.’”) (citations omitted);
Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031-32 (2020) (noting that the power to conduct investigations is
“subject to several limitations” including those arising from “constitutional rights”).
101 Eastland, 421 U.S. at 504, n. 15 (quoting Barenblatt, 360 U.S. at 111).
102 Watkins v. United States, 354 U.S. 178, 187 (1957).
103 Id.
104 Id.
105 See McGrain, 273 U.S. at 175 (noting that the “power of inquiry” was “intended to be effectively exercised, and
therefore to carry with them such auxiliary powers as are necessary and appropriate to that end.”).
106 Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020).
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of existing laws, studies of proposed laws, and ‘surveys of defects in our social, economic or surveys of defects in our social, economic or
political system for the purpose of enabling the Congress to remedy them.political system for the purpose of enabling the Congress to remedy them.’”107
'"109 The Constitutional Scope of the Investigative Power: Legislative Purpose
Broad as the investigative power may be, it is not unlimited.Broad as the investigative power may be, it is not unlimited.108110 The Supreme Court has cautioned The Supreme Court has cautioned
that because the power to investigate derives from Article Ithat because the power to investigate derives from Article I’'s grant of s grant of “"legislative powers,legislative powers,”" it may it may
be exercised only be exercised only“"in aid of the legislative function.in aid of the legislative function.”109"111 No inquiry No inquiry “"is an end in itselfis an end in itself”" but but
instead instead“"must be related to, and in furtherance of, a legitimate task of the Congress.must be related to, and in furtherance of, a legitimate task of the Congress.”110"112 The The
Supreme Court has generally implemented this principle by requiring that compulsory committee Supreme Court has generally implemented this principle by requiring that compulsory committee
investigative actions—including subpoenas for documents or testimony—serve a valid legislative investigative actions—including subpoenas for documents or testimony—serve a valid legislative
purpose.purpose.
This This “"legislative purposelegislative purpose”" requirement is requirement is quite generous, permitting investigations into any topic generous, permitting investigations into any topic
upon which legislation could be had or over which Congress may properly exercise authority.upon which legislation could be had or over which Congress may properly exercise authority.111
113 This includes investigations undertaken by Congress to inform itself about how existing laws This includes investigations undertaken by Congress to inform itself about how existing laws
function, whether new laws are necessary, and if old laws should be repealed or altered.function, whether new laws are necessary, and if old laws should be repealed or altered.112
114 Investigations into whether the executive branch is complying with its obligation to faithfully Investigations into whether the executive branch is complying with its obligation to faithfully
execute laws passed by Congress also serve a legislative purpose, as do execute laws passed by Congress also serve a legislative purpose, as do“"probes into departments probes into departments
of the Federal Government to expose corruption, inefficiency or waste.of the Federal Government to expose corruption, inefficiency or waste.”113"115 The Supreme Court The Supreme Court
also appears to have recognized Congressalso appears to have recognized Congress’'s legitimate role in informing the public s legitimate role in informing the public “"concerning concerning
the workings of its governmentthe workings of its government”"—a task the legislature has —a task the legislature has “"assiduously performedassiduously performed”" since since “"the the
earliest times in its history.earliest times in its history.”114
"116
In practice, the legislative purpose requirement rarely acts as a significant restriction on In practice, the legislative purpose requirement rarely acts as a significant restriction on
legislative investigations, especially those relating to government operations. This is principally legislative investigations, especially those relating to government operations. This is principally
because the scope of what constitutes a permissible legislative purpose is broad but also because because the scope of what constitutes a permissible legislative purpose is broad but also because
the application of the legislative purpose test has generally been quite deferential to the the application of the legislative purpose test has generally been quite deferential to the
investigating committee. For example, in addition to broadly interpreting the scope of the types of investigating committee. For example, in addition to broadly interpreting the scope of the types of
investigations that aid the legislative function, the Supreme Court has at times effectively adopted investigations that aid the legislative function, the Supreme Court has at times effectively adopted
a presumption that committees act with a legislative purpose when engaged in an investigation of
107 Id. (citing McGrain, 273 U.S at 161, 174-75).
108 The legislative purpose test generally governs the scope of the investigative power granted (implicitly) to each
house of Congress by the Constitution. That grant of power is then limited by other constitutional constraints. Id. at
2031-32. For a discussion of other constitutional limitations on congressional investigations see infra “Constitutional
Limitations.”
109 Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).
110 Watkins, 354 U.S. at 187.
111 Barenblatt, 360 U.S. at 111.
112 Id.
113 Watkins, 354 U.S. at 187.
114 Id. at 200, n. 33; In re United States Senate Select Comm. on Presidential Campaign Activities, 361 F. Supp. 1270,
1281 (D.D.C. 1973) (“It is apparent as well that a committee’s legislative purpose may legitimately include the
publication of information.”). But see Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979) (holding that with respect to
Speech or Debate Clause immunity that “the transmittal of [] information by individual Members in order to inform the
public and other Members is not a part of the legislative function or the deliberations that make up the legislative
process”); Benford v. Am. Broad. Cos., 502 F. Supp. 1148, 1154 (D. Md. 1980) (“The Supreme Court, however, has
never advocated a broad reading of the “informing function.”). Justice Brennan voiced perhaps the fullest explanation
of Congress’s “informing function” in his dissenting opinion in Gravel v. United States. 408 U.S. 606, 638-64 (1972)
(Brennan, J. dissenting). Brennan’s position, however, was not adopted by the majority opinion.
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governmental activity.115a presumption that committees act with a legislative purpose when engaged in an investigation of governmental activity.117 This can be seen, for example, in This can be seen, for example, in McGrain, a case arising out of a , a case arising out of a
congressional investigation of the Attorney Generalcongressional investigation of the Attorney General’'s failure to prosecute certain individuals s failure to prosecute certain individuals
following the Teapot Dome scandal.following the Teapot Dome scandal.116118 Initially, a federal district court had invalidated the Initially, a federal district court had invalidated the
congressional committeecongressional committee’'s attempts to obtain testimony from the Attorney Generals attempts to obtain testimony from the Attorney General’'s brother, a s brother, a
private citizen. The lower court reasoned that the committeeprivate citizen. The lower court reasoned that the committee’'s purpose was not legislative in s purpose was not legislative in
nature but was undertaken to nature but was undertaken to“"determine the guilt of the Attorney Generaldetermine the guilt of the Attorney General”" and to and to “"put him on put him on
trial,trial,”" which Congress which Congress “"has no power to do.has no power to do.”117"119 The Supreme Court, however, explicitly rejected The Supreme Court, however, explicitly rejected
this characterization of the committeethis characterization of the committee’'s purpose, holding instead that
the subject to be investigated was the administration of the Department of Justice—whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties...s purpose, holding instead that:
[T]he subject to be investigated was the administration of the Department of Justice—
whether its functions were being properly discharged or were being neglected or
misdirected, and particularly whether the Attorney General and his assistants were
performing or neglecting their duties…. Plainly the subject was one on which legislation . Plainly the subject was one on which legislation
could be had and would be materially aided by the information which the investigation was could be had and would be materially aided by the information which the investigation was
calculated to elicit.calculated to elicit.118
120
In light of this oversight role, the Court held that In light of this oversight role, the Court held that “"the only legitimate object the Senate could the only legitimate object the Senate could
have in ordering the investigation was to aid it in legislating; and we think the subject-matter was have in ordering the investigation was to aid it in legislating; and we think the subject-matter was
such that the presumption should be indulged that this was the real object.such that the presumption should be indulged that this was the real object.”119
"121
The judiciaryThe judiciary’'s application of the legislative purpose test is informed by other principles that have s application of the legislative purpose test is informed by other principles that have
previously reflected a reluctance to question a committeepreviously reflected a reluctance to question a committee’'s reasons for seeking information. The s reasons for seeking information. The
Supreme Court has made clear that when Supreme Court has made clear that when“"Congress acts in pursuance of its constitutional Congress acts in pursuance of its constitutional
power,power,”" the courts should not inquire into the courts should not inquire into “"the motives which spurred the exercise ofthe motives which spurred the exercise of”" the the
investigative power.investigative power.120122 Even evidence of bad intent Even evidence of bad intent will not “vitiate”has not "vitiate[d]" an otherwise valid an otherwise valid
investigation.investigation.121
123
Nor is a committee required to Nor is a committee required to “"declare in advancedeclare in advance”" the purpose of an inquiry or its ultimate the purpose of an inquiry or its ultimate
legislative or oversight goal.legislative or oversight goal.122124 The Supreme Court has stated, The Supreme Court has stated, “"The very nature of the The very nature of the
investigative function—like any research—is that it takes the searchers up some investigative function—like any research—is that it takes the searchers up some‘'blind alleysblind alleys’' and and
into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end
result.result.”123
"125
The judicial reluctance to question congressional motives and the general presumption that The judicial reluctance to question congressional motives and the general presumption that
committees act with a legislative purpose both play a significant role in limiting the effectiveness
115 McGrain, 273 U.S. at 178 (holding that “the only legitimate object the Senate could have in ordering the
investigation was to aid it in legislating; and we think the subject-matter was such that the presumption should be
indulged that this was the real object”); id. (“We are bound to presume that the action of the legislative body was with a
legitimate object if it is capable of being so construed …”) (citation omitted).
116 Id. at 150-54.
117 Ex parte Daugherty, 299 F. 620, 639-40 (S.D. Ohio 1924).
118 McGrain, 273 U.S. at 177.
119 Id. at 178.
120 Barenblatt v. United States, 360 U.S. 109, 132 (1959) Judicial attempts to look inside the minds of Members
“misperceives the [c]ourt’s role, which is not to determine the validity of the legislative purpose by ‘testing the motives
of committee members’ based on public statements.” See Senate Permanent Subcomm. On Investigations v. Ferrer, 199
F. Supp. 3d 125, 137 (D.D.C. 2016).
121 Watkins, 354 U.S. at 200 (concluding that courts should not “test[] the motives of committee members” when
evaluating an investigation’s purpose).
122 In re Chapman, 166 U.S. 661, 670 (1897) (noting that “it was certainly not necessary that the resolutions should
declare in advance what the Senate meditated doing when the investigation was concluded”).
123 Eastland, 421 U.S. at 509.
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committees act with a legislative purpose both play a significant role in limiting the effectiveness of raising legislative purpose as a defense to an otherwise valid congressional subpoena. of raising legislative purpose as a defense to an otherwise valid congressional subpoena.
However, the courts have acknowledged at least two general classes of investigations in which However, the courts have acknowledged at least two general classes of investigations in which
Congress may generally lack a legislative purpose: Congress may generally lack a legislative purpose: (1) investigations into private conduct with no investigations into private conduct with no
relation to the legislative function and relation to the legislative function and (2) investigations that usurp functions committed to another investigations that usurp functions committed to another
branch of government.branch of government.
Investigations into Private Conduct with No Relation to the
Legislative Function
Congress does not act with a legislative purpose when investigating private conduct that has no Congress does not act with a legislative purpose when investigating private conduct that has no
nexus to the legislative function. In the 1880 decision of nexus to the legislative function. In the 1880 decision of Kilbourn v. Thompson, the Supreme , the Supreme
Court held broadly that Congress does not Court held broadly that Congress does not“"possess[] the general power of making inquiry into possess[] the general power of making inquiry into
the private affairs of the citizen.the private affairs of the citizen.”124"126 But the Court has subsequently described the But the Court has subsequently described the “"loose loose
language”language" of of Kilbourn and its narrow conception of Congress and its narrow conception of Congress’'s investigative power as s investigative power as “"severely severely
discredited.discredited.”125"127 For example, in discussing the reach of For example, in discussing the reach of Kilbourn, the Court appears to have made , the Court appears to have made
a distinction between investigating purely private conduct of private citizens, which would not a distinction between investigating purely private conduct of private citizens, which would not
typically serve a legislative purpose, and investigating the private conduct of public office typically serve a legislative purpose, and investigating the private conduct of public office
holders, which may, in some circumstances, serve a legislative purpose due to Congressholders, which may, in some circumstances, serve a legislative purpose due to Congress’'s role in s role in
preserving good government.preserving good government.126128 For example, in For example, in Hutcheson v. United States, the Court held, the Court held that
“[a]t, "At most, most, Kilbourn is authority for the proposition that Congress cannot constitutionally inquire is authority for the proposition that Congress cannot constitutionally inquire
‘'into the private affairs of individuals who hold no office under the governmentinto the private affairs of individuals who hold no office under the government’' when the when the
investigation investigation‘'could result in no valid legislation on the subject to which the inquiry referred.could result in no valid legislation on the subject to which the inquiry referred.’”127
'"129
Despite its criticism of Despite its criticism of Kilbourn, the Court has still expressed concern that congressional , the Court has still expressed concern that congressional
investigations into private conduct could infringe on personal privacy. In the 1957 decision of investigations into private conduct could infringe on personal privacy. In the 1957 decision of
Watkins v. United States, the Court, in an opinion overturning a criminal contempt of Congress , the Court, in an opinion overturning a criminal contempt of Congress
conviction on due process grounds, also discussed more generally Congressconviction on due process grounds, also discussed more generally Congress’'s investigative s investigative
powers and described the legislative branch as having powers and described the legislative branch as having“"no general authority to expose the private no general authority to expose the private
affairs of individuals without justification in terms of the functions of Congress.affairs of individuals without justification in terms of the functions of Congress.”128"130 Although Although
acknowledging that acknowledging that“"[t]he public is, of course, entitled to be informed concerning the workings of [t]he public is, of course, entitled to be informed concerning the workings of
its government,its government,”" that justification for government oversight that justification for government oversight “"cannot be inflated into a general cannot be inflated into a general
power to expose where the predominant result can only be an invasion of the private rights of power to expose where the predominant result can only be an invasion of the private rights of
individuals.individuals.”129"131 As such, an investigation into As such, an investigation into “"individual affairs is invalid if unrelated to any individual affairs is invalid if unrelated to any
legislative purpose,legislative purpose,”" as are attempts to as are attempts to “"expose for the sake of exposure."132
expose for the sake of exposure.”130
124 103 U.S. 168, 190 (1881). In that case the Court invalidated the House’s imprisonment of a member of the public
during an investigation into the collapse of a private real estate pool. Taking a very restrictive view of Congress’s
investigation authorities, the opinion also questioned the House’s authority to punish witnesses for non-compliance
with investigative requests unless the inquiry was connected to either impeachment or the House’s power to judge the
election and qualification of its Members. Id.
125 United States v. Rumely, 345 U.S. 41, 46 (1953); Hutcheson v. United States, 369 U.S. 599, 613 n.16 (1962).
126 The Court also appears to have distinguished investigations into private conduct of the President. See infra
“Legislative Purpose and Investigations Involving the President.”
127 Rumely, 345 U.S. at 46.
128 Watkins, 354 U.S. at 187.
129 Id. at 200.
130 Id. at 198, 200.
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Functions Committed to Another Branch of Government
A second class of investigations that may lack a legislative purpose are those that appear to usurp A second class of investigations that may lack a legislative purpose are those that appear to usurp
functions exclusively committed to another branch of government. In functions exclusively committed to another branch of government. In Barenblatt v. United States,
the Supreme Court explained, the Supreme Court explained,“"Lacking the judicial power given to the Judiciary, [Congress] Lacking the judicial power given to the Judiciary, [Congress]
cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the Executive.supplant the Executive in what exclusively belongs to the Executive.”131"133 The Court elaborated on The Court elaborated on
this separation of powers line of reasoning in this separation of powers line of reasoning in Watkins, where it stated that Congress is not , where it stated that Congress is not“"a law a law
enforcement or trial agency. These are functions of the executive and judicial departments of enforcement or trial agency. These are functions of the executive and judicial departments of
government.… government ... Investigations conducted solely for the personal aggrandizement of the Investigations conducted solely for the personal aggrandizement of the
investigators or to investigators or to‘punish’'punish' those investigated are indefensible. those investigated are indefensible.”132"134 Most recently, in Most recently, in Mazars,, the the
Court reaffirmed thatCourt reaffirmed that
Congress may not issue a subpoena for the purpose of Congress may not issue a subpoena for the purpose of “"law enforcement,law enforcement,”" because because “"those powers are assigned under our Constitution to the Executive and the Judiciary." Thus those
powers are assigned under our Constitution to the Executive and the Judiciary.” Thus
Congress may not use subpoenas to Congress may not use subpoenas to“try”"try" someone someone “"before [a] committee for any crime or before [a] committee for any crime or
wrongdoing.wrongdoing.”133
"135
While it is clear that Congress cannot arrogate to itself either the executive or judicial function by While it is clear that Congress cannot arrogate to itself either the executive or judicial function by
attempting to directly enforce the law or otherwise prosecute and try an individual for attempting to directly enforce the law or otherwise prosecute and try an individual for
wrongdoing, it is not clear how this separation of powers constraint applies to investigations wrongdoing, it is not clear how this separation of powers constraint applies to investigations
touching on other exclusive functions of the executive or judicial branches.touching on other exclusive functions of the executive or judicial branches.134136 In In Tenney v.
Brandhove, for example, the Court suggested, for example, the Court suggested that “[t]o, "To find that a committee find that a committee’'s investigation has s investigation has
exceeded the bounds of legislative power it must be obvious that there was a usurpation of exceeded the bounds of legislative power it must be obvious that there was a usurpation of
functions exclusively vested in the Judiciary or the Executive.functions exclusively vested in the Judiciary or the Executive.”135
"137 Legislative Purpose and Investigations Involving the President
The legislative purpose test appears to apply with greater scrutiny and less deference to Congress The legislative purpose test appears to apply with greater scrutiny and less deference to Congress
when a committee is investigating the President. In when a committee is investigating the President. In Trump v. Mazars, President Trump brought , President Trump brought
suit in his personal capacity to block his banks and accounting firm from complying with various suit in his personal capacity to block his banks and accounting firm from complying with various
committee subpoenas for the Presidentcommittee subpoenas for the President’'s personal financial records.s personal financial records.136138 Applying the deferential Applying the deferential
legislative purpose standard used by the Court in previous cases,legislative purpose standard used by the Court in previous cases,137139 the opinions below concluded the opinions below concluded
that the committees had a valid legislative purpose for seeking the Presidentthat the committees had a valid legislative purpose for seeking the President’'s personal records.140 s personal records.138
131 360 U.S. 109, 112 (1959).
132 Watkins, 354 U.S. at 187.
133 Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020).
134 Congress’s impeachment function, which has at time been characterized as possessing “judicial” features, arguably
represents an exception to this general prohibition. See CRS Report R45983, Congressional Access to Information in
an Impeachment Investigation, by Todd Garvey at 6-11.
135 Tenney v. Brandhove, 341 U.S. 367, 378 (1951).
136 The challenged subpoenas were issued as part of different ongoing committee investigations: The House Committee
on Oversight and Reform sought information in connection to its review of federal ethics laws, the House Financial
Services Committee sought information in connection to its investigation into abuses of the financial system, and the
House Permanent Select Committee on Intelligence sought information in connection to its investigation into foreign
interference in U.S. elections. See generally CRS Legal Sidebar LSB10517, Trump v. Mazars: Implications for
Congressional Oversight, by Todd Garvey.
137 See CRS Legal Sidebar LSB10301, Legislative Purpose and Adviser Immunity in Congressional Investigations, by
Todd Garvey.
138 Mazars, 140 S. Ct. at 2028-29.
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On appeal to the Supreme Court, On appeal to the Supreme Court, Mazars presented the Court with its first opportunity to directly presented the Court with its first opportunity to directly
consider the legislative purpose test in a congressional investigation of the President.consider the legislative purpose test in a congressional investigation of the President.
The The Mazars opinion clarified that in the context of congressional investigations the President opinion clarified that in the context of congressional investigations the President
must, as a constitutional matter, be treated differently than others.must, as a constitutional matter, be treated differently than others.139141 The opinion described the The opinion described the
courts below as having mistakenly courts below as having mistakenly“"treated these cases much like any other,treated these cases much like any other,”" applying standards applying standards
and principles established in and principles established in“"precedents that do not involve the Presidentprecedents that do not involve the President’'s papers.s papers.”140
"142 Subpoenas for the PresidentSubpoenas for the President’'s personal records, the Court determined, involve significant s personal records, the Court determined, involve significant
separation-of-separation of powers concerns that trigger a different, more scrutinizing approach to the scope of powers concerns that trigger a different, more scrutinizing approach to the scope of
Congress’Congress's power. But the Court rejected as inappropriate invitations to import the heightened s power. But the Court rejected as inappropriate invitations to import the heightened
“"demonstrated, specific needdemonstrated, specific need”" or or “"demonstrably criticaldemonstrably critical”" standards that had been used in prior standards that had been used in prior
cases involving executive privilege—a privilege not at issue in cases involving executive privilege—a privilege not at issue in Mazars due to the personal nature due to the personal nature
of the documents sought.of the documents sought.141143 Instead, the Chief Justice Roberts Instead, the Chief Justice Roberts’'s opinion for the Court identified at s opinion for the Court identified at
least four least four“"special considerationsspecial considerations”" to help lower courts to appropriately balance the to help lower courts to appropriately balance the “"legislative legislative
interests of Congressinterests of Congress”" with with “"the the ‘'unique positionunique position’' of the President of the President”" when a committee subpoena when a committee subpoena
seeks the Presidentseeks the President’'s private paperss private papers.142
First, a144: 1. A reviewing court should reviewing court should “"carefully assess whether the asserted carefully assess whether the asserted
legislative purpose warrants the significant step of involving the President legislative purpose warrants the significant step of involving the President
and his papers.and his papers.”143"145 The Court elaborated that Congress The Court elaborated that Congress’s “'s "interests are not interests are not
sufficiently powerful to justify access to the Presidentsufficiently powerful to justify access to the President’'s personal papers s personal papers
when other sources could provide Congress the information it needs.when other sources could provide Congress the information it needs.”144
Second, courts “"146
2. Courts "should insist on a subpoena no broader than reasonably should insist on a subpoena no broader than reasonably
necessary to support Congressnecessary to support Congress’'s legislative objective.s legislative objective.”145"147 Specific demands, Specific demands,
the High Court reasoned, are less likely to the High Court reasoned, are less likely to“intrude”"intrude" on the operation of the on the operation of the
Presidency.Presidency.146
Third, “courts 148
3. Courts "should be attentive to the nature of the evidence offered by should be attentive to the nature of the evidence offered by
Congress to establish that a subpoena advances a valid legislative Congress to establish that a subpoena advances a valid legislative
purpose.purpose.”147"149 To this end, Congress To this end, Congress’'s position is strengthened when a s position is strengthened when a
congressional committee can provide congressional committee can provide“"detailed and substantial evidencedetailed and substantial evidence”" of of
its legislative purpose.148
139 Id. at 2026. See also United States v. Burr, 25 F. Cas. 30, 192 (CC Va. 1807) (No. 14,692d) (noting that the court
would not “proceed against the president as against an ordinary individual”). The Mazars opinion also treated a
congressional investigation as “different” from a “judicial proceeding.” Mazars, 140 S. Ct. at 2026.
140 Mazars, 140 S. Ct. at 2033.
141 Id. at 2032. (“We disagree that these demanding standards apply here.… We decline to transplant that protection
root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive
Executive Branch deliberations.”). The Court also rejected the House’s proposed approach, which it characterized as
failing to “take adequate account of the significant separation of powers issues raised by congressional subpoenas for
the President’s information.” Id. at 2033.
142 Id. at 2035.
143 Id. at 2036.
144 Id.
145 Id.
146 Id.
147 Id.
148 Id.
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Fourth, “courts its legislative purpose.150
4. Courts "should be careful to assess the burdens imposed on the should be careful to assess the burdens imposed on the
President by a subpoena.President by a subpoena.”149"151 Here the Court reasoned that in comparison to Here the Court reasoned that in comparison to
the burdens imposed by judicial subpoenas, the burdens imposed on the the burdens imposed by judicial subpoenas, the burdens imposed on the
President by congressional subpoenas President by congressional subpoenas“"should be carefully scrutinized, for should be carefully scrutinized, for
they stem from a rival political branch that has an ongoing relationship with they stem from a rival political branch that has an ongoing relationship with
the President and incentives to use subpoenas for institutional advantage.the President and incentives to use subpoenas for institutional advantage.”150
"152 These These “"special considerationsspecial considerations”" appear to subject congressional subpoenas for the President appear to subject congressional subpoenas for the President’s
's personal records to a less deferential standard than other congressional subpoenas. The Court personal records to a less deferential standard than other congressional subpoenas. The Court
cautioned that cautioned that“"other considerations,other considerations,”" besides those specifically identified, might also be relevant, besides those specifically identified, might also be relevant,
as as“"one case every two centuries does not afford enough experience for an exhaustive listone case every two centuries does not afford enough experience for an exhaustive list”" of of
factors to be considered by a reviewing court.factors to be considered by a reviewing court.151
153 Mazars’ “'s "special considerationsspecial considerations”" appear to be tailored to appear to be tailored to Presidentialpresidential records. records.152154 To view the case To view the case
otherwise—for example, to apply the otherwise—for example, to apply the“"special considerationsspecial considerations”" to congressional subpoenas issued to congressional subpoenas issued
as part of a more typical oversight investigation into as part of a more typical oversight investigation into agency activity—would put the opinion in activity—would put the opinion in
tension with previous precedent, including the principles established in tension with previous precedent, including the principles established in McGrain..153155 Nothing in Nothing in
the the Mazars opinion appears to signal that the majority intended to alter previously established opinion appears to signal that the majority intended to alter previously established
principles in congressional investigations not involving the President.principles in congressional investigations not involving the President.
Authority of Congressional Committees
The implied constitutional authority to conduct investigations resides independently in both the The implied constitutional authority to conduct investigations resides independently in both the
House of Representatives and the Senate, but each chamber has delegated responsibility for House of Representatives and the Senate, but each chamber has delegated responsibility for
carrying out the investigative role to its standing and select committees.carrying out the investigative role to its standing and select committees.154156 For example, under For example, under
House rules, a standing House committee may conduct House rules, a standing House committee may conduct“"such investigations and studies as it considers necessary or appropriate in the exercise of its responsibilities."157such investigations and studies as it
149 Id.
150 Id.
151 Id. It appears that the Mazars test may also apply to cases involving former Presidents in at least a narrow set of
“specific circumstances.” See Trump v. Mazars USA, LLP, 39 F.4th 774, 787 (D.C. Cir. 2022) (“We do not accept the
Committee’s invitation to abandon the Supreme Court’s Mazars test in the Mazars case itself. Whatever may be the
appropriate standard when Congress issues a subpoena to a former President, the subpoena in this case, when issued,
sought a sitting President’s information. President Trump then brought this challenge while still in office; that same
challenge remains pending; and the subpoena remains unchanged in all respects. At least in these specific
circumstances, we do not understand that the Mazars test instantly ceased to apply—and a different standard
immediately took hold—on the day President Trump left office.”). See also Comm. on Ways and Means v. Dep’t of
Treasury, 45 F.4th 324, 333-34 (D.C. Cir. 2022) (“[I]t is likely law of the circuit that a Congressional request for a
sitting President’s personal information is evaluated under the heightened Mazars standard regardless of whether the
President in question remains in office.”).
152 It is not entirely clear how Mazars may apply to investigations focused on official conduct and seeking
governmental records. See CRS Legal Sidebar LSB10517, Trump v. Mazars: Implications for Congressional
Oversight, by Todd Garvey. It could be argued that the standards adopted in Mazars are applicable only when a
congressional committee directly targets the personal or private records of a President. Under that interpretation,
judicially imposed limits on Congress’s authority to obtain official records of the President would be reviewed under
the deferential “legislative purpose” standard applied in previous cases (though, even if the subpoena is validly issued
under this standard, the President might still invoke applicable privileges to withhold some records). On the other hand,
it could be argued that the “special considerations” test set forth in Mazars applies to requests for either personal or
official records. Even then, the considerations may apply differently to requests for official records compared to the
President’s private information.
153 See supra “The Constitutional Scope of the Investigative Power: Legislative Purpose.”
154 See e.g., House Rule X(2); House Rule XI(1)(b); House Rule XI(2)(m); Senate Rule XXV; Senate Rule XXVI(1).
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considers necessary or appropriate in the exercise of its responsibilities.”155 In the Senate, each In the Senate, each
standing committee standing committee“"may make investigations into any matter within its jurisdiction.may make investigations into any matter within its jurisdiction.”156"158 As a As a
result, the power of inquiry and investigation is result, the power of inquiry and investigation isone that is exercised primarily by committees of exercised primarily by committees of
Congress rather than by the full House or Senate. And that investigative role is more than a Congress rather than by the full House or Senate. And that investigative role is more than a
discretionary power; it is a statutory duty. Under 2 U.S.C. § 190d, discretionary power; it is a statutory duty. Under 2 U.S.C. § 190d,“"each standing committee of each standing committee of
the Senate and the House of Representatives shall review and study, on a continuing basis, the the Senate and the House of Representatives shall review and study, on a continuing basis, the
application, administration, and execution of those laws application, administration, and execution of those laws…... the subject matter of which is within the subject matter of which is within
the jurisdiction of that committee.the jurisdiction of that committee.”157
"159
The enabling chamber rule or resolution that gives a committee life is also the charter that defines The enabling chamber rule or resolution that gives a committee life is also the charter that defines
the grant and limitations of the committeethe grant and limitations of the committee’'s investigative powers. The committee charter s investigative powers. The committee charter
constrains committees in two meaningful ways. First, as a creation of its parent house, a constrains committees in two meaningful ways. First, as a creation of its parent house, a
congressional committee may inquire only into matters within the scope of the authority that has congressional committee may inquire only into matters within the scope of the authority that has
been delegated to it—that is, within its jurisdiction.been delegated to it—that is, within its jurisdiction.158160 Second, in conducting investigations, a Second, in conducting investigations, a
committee must generally comply with any procedural requirements contained in its charter, its committee must generally comply with any procedural requirements contained in its charter, its
own rules, or the rules of the parent chamber.own rules, or the rules of the parent chamber.159
161
Enforcement of these limitations by the courts, like judicial scrutiny of other internal Enforcement of these limitations by the courts, like judicial scrutiny of other internal
congressional matters, is generally quite limited.congressional matters, is generally quite limited.160 Indeed, the162 The Speech or Debate Clause Speech or Debate Clause
generally prevents direct challenges to how a committee carries out its legislative and generally prevents direct challenges to how a committee carries out its legislative and
investigative operations.investigative operations.161163 As a result, it is generally only when the As a result, it is generally only when the committee seeks to enforce a seeks to enforce a
subpoena or other investigative demands that a court is presented with the opportunity to subpoena or other investigative demands that a court is presented with the opportunity to
determine compliance with procedural rules.determine compliance with procedural rules.162164 Even then, courts are generally reluctant to Even then, courts are generally reluctant to
examine internal matters unless a House, Senate, or committee rule implicates constitutional examine internal matters unless a House, Senate, or committee rule implicates constitutional
rights.rights.163165 However, it does appear that when a court is forced to either construe the scope of a However, it does appear that when a court is forced to either construe the scope of a
committee’committee's jurisdiction or interpret committee rules, it s jurisdiction or interpret committee rules, it will generally generally looklooks to the words of the to the words of the
rule or resolution itself and then, if necessary, to the usual sources of legislative history such as rule or resolution itself and then, if necessary, to the usual sources of legislative history such as
floor debate, legislative reports, and prior committee practice and interpretation.floor debate, legislative reports, and prior committee practice and interpretation.164
166 Jurisdiction
A committee may not exercise compulsory investigative powers in connection to matters outside A committee may not exercise compulsory investigative powers in connection to matters outside
of its jurisdiction.of its jurisdiction.165167 This jurisdictional limitation is fundamental to the operation of a committee, as it arises from the very nature of the "source" of the committee' This jurisdictional limitation is fundamental to the operation of a committee,
155 House Rule XI(1)(b).
156 Senate Rule XXVI(1).
157 2 U.S.C. §§190d(a).
158 See Watkins v. United States, 354 U.S. 178, 206 (1957) (“Plainly these committees are restricted to the missions
delegated to them…. No witness can be compelled to make disclosures on matters outside that area.”).
159 See Yellin v. United States, 374 U.S. 109, 111-12 (1963).
160 See Tenney v. Brandhove, 341 U.S. 367, 378 (1951) (“The courts should not go beyond the narrow confines of
determining that a committee’s inquiry may fairly be deemed within its province.”).
161 Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 (1975).
162 Judicial review of subpoenas is also quite narrow. See “Limitations on Challenging a Subpoena” infra.
163 See United States v. Ballin, 144 U.S. 1, 5 (1892) (declaring that the House’s rulemaking authority “is a continuous
power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the
challenge of any other body or tribunal”).
164 See Watkins, 354 U.S. at 209. Courts have also construed delegations of investigatory powers narrowly when
necessary to avoid “passing on serious constitutional questions.” Tobin v. United States, 306 F.2d 270, 274-75 (D.C.
Cir. 1962).
165 United States v. Rumely, 345 U.S. 41, 42, 44 (1953); see also Watkins, 354 U.S. at 198, 206 (“Plainly these
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as it arises from the very nature of the “source” of the committee’s authority: the delegation from s authority: the delegation from
the parent body.the parent body.166168 A committee A committee “"is restricted to the missions delegated to it by the parent body,is restricted to the missions delegated to it by the parent body,”
" and and“"no witness can be compelled to make disclosures on matters outside that area.no witness can be compelled to make disclosures on matters outside that area.”167"169 For For
standing committees, that jurisdictional delegation can generally be found in House Rule X and standing committees, that jurisdictional delegation can generally be found in House Rule X and
Senate Rule XXV.Senate Rule XXV.168
170
The consequence of a committee exceeding its jurisdiction is apparent from The consequence of a committee exceeding its jurisdiction is apparent from United States v.
Rumely..169171 There, the secretary of an organization that published and sold books of There, the secretary of an organization that published and sold books of “"particular particular
political tendentiousnesspolitical tendentiousness”" challenged his conviction for contempt of Congress on the grounds that challenged his conviction for contempt of Congress on the grounds that
the committee that cited him for contempt had exceeded its jurisdiction.the committee that cited him for contempt had exceeded its jurisdiction.170172 The resolution The resolution
establishing the committee, which the Supreme Court viewed as establishing the committee, which the Supreme Court viewed as“"the controlling charter of the the controlling charter of the
committee’committee's powers,s powers,”" had authorized the committee to investigate had authorized the committee to investigate “"lobbying activities intended lobbying activities intended
to influence to influence… legislation.”171... legislation."173 The Court interpreted The Court interpreted “the phrase lobbying activitieslobbying activities” to extend only to to extend only to
“"representation made directly to the Congressrepresentation made directly to the Congress”" and thus concluded that the committee had no and thus concluded that the committee had no
authority to investigate or enforce a subpoena against a witness who had sought only to influence authority to investigate or enforce a subpoena against a witness who had sought only to influence
public opinion.public opinion.172
174
In adopting this interpretation of In adopting this interpretation of “lobbying activitieslobbying activities,,” the Court expressly stated that it gave the the Court expressly stated that it gave the
committee’committee's jurisdiction a s jurisdiction a “"more restricted scopemore restricted scope”" in part in part so as to avoid the possibility that to avoid the possibility that
enforcement of the subpoena would violate the witnessenforcement of the subpoena would violate the witness’'s First Amendment right to engage in s First Amendment right to engage in
political speech.political speech.173175 The Court has followed a similar approach in subsequent cases, at times The Court has followed a similar approach in subsequent cases, at times
adopting a narrow interpretation of either a committee jurisdiction or the scope of an individual adopting a narrow interpretation of either a committee jurisdiction or the scope of an individual
investigation in order to avoid the possibility of a constitutional conflict on the grounds that investigation in order to avoid the possibility of a constitutional conflict on the grounds that
“"[p]rotected freedoms should not be placed in danger in the absence of a clear determination by [p]rotected freedoms should not be placed in danger in the absence of a clear determination by
the House or the Senate that a particular inquiry is justified by a particular legislative need.”174
committees are restricted to the missions delegated to them, i.e., to acquire certain data to be used by the House or the
Senate in coping with a problem that falls within its legislative sphere. No witness can be compelled to make
disclosures on matters outside that area.”).
166 Watkins, 354 U.S. at 206.
167 Id.
168 See House Rule X, 113th Cong. (2013); Senate Rule XXV, 114th Cong. (2013). Jurisdictional authority for “special”
investigations may be given to a standing committee, a joint committee of both houses, or a special subcommittee of a
standing committee, among other options.
169 Rumely, 345 U.S. at 42-48.
170 Id. at 42, 48.
171 Id. at 44.
172 Id. at 47.
173 Id. (“Certainly it does no violence to the phrase ‘lobbying activities’ to give it a more restricted scope. To give such
meaning is not barred by intellectual honesty. So to interpret is in the candid service of avoiding a serious constitutional
doubt.”).
174 See Watkins, 345 U.S. at 224; Tobin v. United States, 306 F.2d 270, 275 (D.C. Cir. 1962) (holding that if Congress
had intended a committee to begin an investigation “sure to provoke the serious and difficult constitutional questions
… it would have spelled out this intention in words more explicit than the general terms found in the authorizing
resolutions under consideration.” But see Barenblatt, 360 U.S. at 121 (rejecting the avoidance approach adopted in
Rumely on the grounds that Congress had placed a clarifying “legislative gloss” on the meaning of the applicable
committee rule).
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Committee Rules
the House or the Senate that a particular inquiry is justified by a particular legislative need."176
Committee Rules
A committee must also generally comply with chamber and committee rules relating to the A committee must also generally comply with chamber and committee rules relating to the
conduct of investigations.conduct of investigations.175177 For example, in For example, in Yellin v. United States, the Supreme Court , the Supreme Court
overturned a contempt conviction stemming from a witnessoverturned a contempt conviction stemming from a witness’'s refusal to answer questions in a s refusal to answer questions in a
public hearing.public hearing.176178 The witness had argued that the conviction was improper because the The witness had argued that the conviction was improper because the
committee had failed to comply with its own rules regarding the availability of closed, or committee had failed to comply with its own rules regarding the availability of closed, or
executive, sessions.executive, sessions.177179 Those rules expressly required that in determining whether to close a Those rules expressly required that in determining whether to close a
hearing, the committee consider the possible injury to the witnesshearing, the committee consider the possible injury to the witness’'s reputation that may result s reputation that may result
from a public hearing.from a public hearing.178180 The Court held that in exercising investigative powers, a committee may The Court held that in exercising investigative powers, a committee may
be be“"held to observance of its rules.held to observance of its rules.”179"181 Finding that the committee had not given due Finding that the committee had not given due
consideration to the witnessconsideration to the witness’'s requests for a private hearing, the Court overturned the contempt s requests for a private hearing, the Court overturned the contempt
conviction.conviction.180182 The Court reached a similar conclusion in The Court reached a similar conclusion in Gojack v. United States..181183 There a There a
committee rule required that all committee rule required that all“"major investigationsmajor investigations”" be initiated only with the majority be initiated only with the majority
approval of the committee.approval of the committee.182184 The underlying investigation that gave rise to the contempt The underlying investigation that gave rise to the contempt
prosecution had not been authorized. Thus, the court reversed the conviction.prosecution had not been authorized. Thus, the court reversed the conviction.183
185 Legal Tools Available for Oversight and Investigations
There is no single method or set of procedures for engaging in legislative oversight or conducting There is no single method or set of procedures for engaging in legislative oversight or conducting
an investigation.an investigation.184186 Although public attention often focuses on public hearings and subpoenaed Although public attention often focuses on public hearings and subpoenaed
witnesses, congressional committees frequently rely on informal tools to gather the information witnesses, congressional committees frequently rely on informal tools to gather the information
necessary to accomplish necessary to accomplishthe committee’stheir investigative goals, such as staff-level communication investigative goals, such as staff-level communication
and contacts and voluntary compliance with document and briefing requests.and contacts and voluntary compliance with document and briefing requests.185187 In many ways, In many ways,
these informal and voluntary tools represent the unseen but predominant components of these informal and voluntary tools represent the unseen but predominant components of
congressional investigations.
175 House Rule XI(2) and Senate Rule XXVI(2) require that committees adopt written rules of procedure and publish
them in the Congressional Record. The failure to publish such rules has resulted in the invalidation of a perjury
prosecution. United States v. Reinecke, 524 F.2d 435 (D.C. Cir. 1975) (holding that failure to publish committee rule
setting one Senator as a quorum for taking hearing testimony was a sufficient ground to reverse a perjury conviction).
176 Yellin v. United States, 374 U.S. 109, 111-12 (1963).
177 Id. at 113-14.
178 Id. at 114. The committee rule provided: “If a majority of the Committee or Subcommittee … believes that the
interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the
reputation of other individuals, the Committee shall interrogate such witness in an Executive Session for the purpose of
determining the necessity or advisability of conducting such interrogation thereafter in a public hearing.” Id. at 114-15.
179 Id. (citing Christoffel v. United States, 338 U.S. 84 (1949)).
180 Id.
181 Gojack v. United States, 384 U.S. 702, 703-04 (1966).
182 Id. at 706.
183 Id. at 712.
184 See, e.g., CONGRESS INVESTIGATES: A CRITICAL AND DOCUMENTARY HISTORY (Roger A. Bruns, David L. Hostetter
& Raymond W. Smock eds., 2011).
185 A congressional committee “gathers information through formal investigations, but also obtains information in a
number of other ways, including through requests made to relevant Federal agencies, to lobbyists with expertise in a
particular field, and to stakeholders.” SEC v. Comm. on Ways & Means of the United States House of Representatives,
161 F. Supp. 3d 199, 230 (S.D.N.Y. 2015).
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congressional investigations.
Committees also have more formal mechanisms for collecting necessary testimony from relevant Committees also have more formal mechanisms for collecting necessary testimony from relevant
witnesses. Chief among these tools are hearings and, when authorized, depositions.witnesses. Chief among these tools are hearings and, when authorized, depositions.
Hearings
As previously noted, standing committees of the House and Senate are authorized to hold As previously noted, standing committees of the House and Senate are authorized to hold
hearings for purposes of receiving testimony.hearings for purposes of receiving testimony.186188 This testimony is often This testimony is often, but not always, received received
under oath.under oath.187
189
Both the House and the Senate, as well as individual committees, have adopted a variety of rules Both the House and the Senate, as well as individual committees, have adopted a variety of rules
governing the conduct of hearings. These rules include quorum requirements, basic procedural governing the conduct of hearings. These rules include quorum requirements, basic procedural
constraints, and witness and minority protections.constraints, and witness and minority protections.188190 For example, both chambers permit a For example, both chambers permit a
reduced quorum for taking testimony and receiving evidence. House committees are required to reduced quorum for taking testimony and receiving evidence. House committees are required to
have at least two Members present to take testimony.have at least two Members present to take testimony.189191 Senate rules allow the taking of testimony Senate rules allow the taking of testimony
with onlywith one Member in attendance. one Member in attendance.190192 Most committees have adopted the minimum quorum Most committees have adopted the minimum quorum
requirement, and some require a higher quorum for sworn rather than unsworn testimony.requirement, and some require a higher quorum for sworn rather than unsworn testimony.191
193
Senate and House rules also limit the authority of their committees to meet in closed session.Senate and House rules also limit the authority of their committees to meet in closed session.192
194 For example, the House requires testimony to be held in closed session if a majority of a For example, the House requires testimony to be held in closed session if a majority of a
committee or subcommittee determines it committee or subcommittee determines it“"may tend to defame, degrade, or incriminate any may tend to defame, degrade, or incriminate any
person.person.”193"195 Such testimony taken in closed session is normally releasable only by a majority vote Such testimony taken in closed session is normally releasable only by a majority vote
of the committee. Similarly, confidential material received in a closed session requires a majority of the committee. Similarly, confidential material received in a closed session requires a majority
vote for release.vote for release.
In oversight and investigative hearings, the chair usually makes an opening statement. In the case In oversight and investigative hearings, the chair usually makes an opening statement. In the case
of an investigative hearing, the opening statement can be an important means of defining the of an investigative hearing, the opening statement can be an important means of defining the
subject matter of the hearing and thereby establishing the pertinence of questions asked the subject matter of the hearing and thereby establishing the pertinence of questions asked the
witnesses.witnesses.194196 A witness does not have the right to make a statement before being questioned, but A witness does not have the right to make a statement before being questioned, but
the opportunity is usually accorded. Committee rules may prescribe the length of such statements the opportunity is usually accorded. Committee rules may prescribe the length of such statements
and also require that written statements be submitted in advance of the hearing.and also require that written statements be submitted in advance of the hearing.195197 Questioning of Questioning of
witnesses may be structured so that Members alternate for specified lengths of time.witnesses may be structured so that Members alternate for specified lengths of time.
A congressional investigative hearing is unique and generally should not be analogized to a A congressional investigative hearing is unique and generally should not be analogized to a
criminal proceeding, as the same constitutional rights do not attach. Because the Constitution is criminal proceeding, as the same constitutional rights do not attach. Because the Constitution is
generally applicable to all forms of government action, most provisions of the Bill of Rights
186 House Rule XI(m)(1); Senate Rule XXVI(1).
187 Many committees leave the swearing of witnesses to the discretion of the chair, while others require that all
witnesses be sworn. Compare House Comm. on Agriculture, Rule VII(b) (“The Chairman of the Committee, or any
member of the Committee designated by the Chairman, may administer oaths to any witnesses.), with Senate Special
Comm. on Aging, Rule II(4) (“All witnesses who testify to matters of fact shall be sworn unless the Committee waives
the oath.”).
188 As a general matter, House Rule XI and Senate Rule XXVI govern committee hearing procedures.
189 House Rule XI(2)(h)(2).
190 Senate Rule XXVI(7)(a)(2).
191 See, e.g., House Comm. on the Judiciary Rule II; Senate Comm. on Appropriations Rule II(3).
192 House Rule XI(2)(k)(5); Senate Rule XXVI(5)(b).
193 House Rule XI(2)(k)(5).
194 See Watkins, 354 U.S. at 209 (“There are several sources that can outline the ‘question under inquiry’ in such a way
that the rules against vagueness are satisfied. The authorizing resolution, the remarks of the chairman or members of
the committee, or even the nature of the proceedings themselves, might sometimes make the topic clear.”).
195 See, e.g., House Comm. on Foreign Affairs Rule 6; Senate Comm. on Agriculture, Nutrition, and Forestry Rule 3.
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apply to Congress’generally applicable to all forms of government action, most provisions of the Bill of Rights apply to Congress's investigative activities as they do to congressional legislation.s investigative activities as they do to congressional legislation.196198 For For
example, witnesses in a committee hearing may assert their Fifth Amendment right against self-example, witnesses in a committee hearing may assert their Fifth Amendment right against self-
incrimination.incrimination.197199 But not all constitutional rights are applicable to congressional investigations. But not all constitutional rights are applicable to congressional investigations.198
200 Consider, for example, a criminal defendantConsider, for example, a criminal defendant’'s Sixth Amendment rights to present ones Sixth Amendment rights to present one’'s own s own
evidence and to confront and cross-examine witnesses.evidence and to confront and cross-examine witnesses.199201 The D.C. Circuit has held that The D.C. Circuit has held that “"the the
distinguishing factorsdistinguishing factors”" between a legislative investigation and a criminal proceeding between a legislative investigation and a criminal proceeding “cause”
"cause" congressional investigations congressional investigations“"to be outside the guarantees of to be outside the guarantees of the …... the confrontation right the confrontation right
guaranteed in criminal proceedings by the Sixth Amendment.guaranteed in criminal proceedings by the Sixth Amendment.”200"202 A witness in a committee A witness in a committee
hearing therefore has no right to offer his or her own evidence or cross-examine other witnesses, hearing therefore has no right to offer his or her own evidence or cross-examine other witnesses,
though a committee may, at its discretion, afford a witness such an opportunity.though a committee may, at its discretion, afford a witness such an opportunity.201203 The application The application
of another Sixth Amendment rightof another Sixth Amendment right, —the right to effective assistance of counselthe right to effective assistance of counsel, —may also not apply may also not apply
in a congressional investigation.in a congressional investigation.202204 Nevertheless, House, Senate, and committee rules afford Nevertheless, House, Senate, and committee rules afford
witnesses a limited form of that right. Under House rules, the role of counsel is restricted to witnesses a limited form of that right. Under House rules, the role of counsel is restricted to
advising a witness of his or her advising a witness of his or her“"constitutional rights,constitutional rights,”203"205 and some committees have adopted and some committees have adopted
rules specifically prohibiting counsel from rules specifically prohibiting counsel from“coaching”"coaching" witnesses during their testimony. witnesses during their testimony.204
206 Deposition Authority
Authorized congressional committees may also use depositions Authorized congressional committees may also use depositions as a tool for gatheringto gather testimony testimony
during an investigation. A deposition is a formalized interview, taken under oath, generally during an investigation. A deposition is a formalized interview, taken under oath, generally
transcribed or recorded, and governed by chamber and committee rules.transcribed or recorded, and governed by chamber and committee rules.205207 The standing rules of The standing rules of
the House authorize only the Committee on Oversight and the House authorize only the Committee on Oversight and Government Reform to take depositions.Reform to take depositions.206208 In In
recent Congresses, however, the House has provided deposition authority to additional
196 See Mazars, 140 S. Ct. 2019, 2032 (2020) (noting that “recipients of legislative subpoenas retain their constitutional
rights throughout the course of an investigation”). For a discussion of constitutional and other limitations on
congressional investigations, see infra “Constitutional Limitations.”
197 See Quinn v. United States, 349 U.S. 155, 161-62 (1995); Emspak v. United States, 349 U.S. 190, 197-98 (1955);
Bart v. United States, 349 U.S. 219, 221, 223 (1955).
198 See United States v. Fort, 443 F.2d 670, 678 (D.C. Cir. 1970) (“[W]hich constitutional rights are applicable depends
on the nature and consequences of the governmental action.”).
199 Id.
200 Id. at 679.
201 Hannah v. Larche, 363 U.S. 420, 444-45 (1960) (“The procedures adopted by legislative investigating committees
have varied over the course of years. Yet, the history of these committees clearly demonstrates that only infrequently
have witnesses appearing before congressional committees been afforded the procedural rights normally associated
with an adjudicative proceeding. In the vast majority of instances, congressional committees have not given witnesses
detailed notice or an opportunity to confront, cross-examine and call other witnesses.”). These rights are, however,
often afforded in impeachment investigations. See CRS Report R45983, Congressional Access to Information in an
Impeachment Investigation, by Todd Garvey at 15.
202 See generally Andrew McCanse Wright, Congressional Due Process, 85 MISS. L.J. 401, 434-36 (2016).
203 House Rule XI(2)(k)(3).
204 See, e.g., Senate Perm. Subcomm. On Investigations of the Comm. on Homeland Sec. and Gov’t Affairs Rule 8
(providing that subcommittee rules should not be “construed as authorizing counsel to coach the witness or answer for
the witness”).
205 See Hearing on H. Res. 836 Before the H. Comm. on Rules, 110th Cong. 23-24 (2007) (statement of T.J. Halstead)
(generally describing a deposition as a “discovery device commonly used in litigation that typically involves the oral
questioning of a witness (the deponent) by an attorney for one party, outside the courtroom, and out of public view. A
deposition is taken following notice to the deponent, and is sometimes accompanied by a subpoena. The deposition
testimony is given under oath or affirmation and a transcript is made an authenticated.”).
206 House Rule X(4)(c)(3).
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recent Congresses, however, the House has provided deposition authority to additional committees through resolution. For example, in the committees through resolution. For example, in the 117th119th Congress, the House authorized Congress, the House authorized all
standing committees other than the Committee on Rules to take depositions.standing committees other than the Committee on Rules to take depositions.207209 In the Senate, the In the Senate, the
Committees on Agriculture, Nutrition, and Forestry; Ethics; Homeland Security and Committees on Agriculture, Nutrition, and Forestry; Ethics; Homeland Security and
Governmental Affairs and its Permanent Subcommittee on Investigations; Indian Affairs; Foreign Governmental Affairs and its Permanent Subcommittee on Investigations; Indian Affairs; Foreign
Relations;Relations; and Commerce, Science, and Technology Commerce, Science, and Technology; and the Special Committee on Aging all and the Special Committee on Aging all
appear to have some form of deposition authority.appear to have some form of deposition authority.208
210
The House Committee on Rules has previously adopted a number of procedural rules governing The House Committee on Rules has previously adopted a number of procedural rules governing
the conduct of depositions in the House.the conduct of depositions in the House.209211 Among other requirements, these rules establish that Among other requirements, these rules establish that
:depositions may be taken by committee counsel without a committee depositions may be taken by committee counsel without a committee
member present;member present;
witnesses may be accompanied by nongovernmental counsel witnesses may be accompanied by nongovernmental counsel “"to advise them to advise them
of their rightsof their rights;”
";
questioning of the witness occurs in rounds, with equal time provided to both questioning of the witness occurs in rounds, with equal time provided to both
the majority and minority;the majority and minority;
objections are ruled upon by the committee chair, with appeal available to the objections are ruled upon by the committee chair, with appeal available to the
full committee; andfull committee; and
the chair and ranking member the chair and ranking member “"shall consult regarding the release of shall consult regarding the release of
deposition testimony,deposition testimony,”" with disagreements referred to the full committee for with disagreements referred to the full committee for
resolution.resolution.210
212 Staff depositions afford a number of significant advantages for committees engaged in complex Staff depositions afford a number of significant advantages for committees engaged in complex
investigations, including the ability to obtain sworn testimony quickly and confidentially without investigations, including the ability to obtain sworn testimony quickly and confidentially without
the necessity of Members devoting time to lengthy hearings that may be unproductive because the necessity of Members devoting time to lengthy hearings that may be unproductive because
witnesses do not have the facts needed by the committee or refuse to cooperate. Depositions also witnesses do not have the facts needed by the committee or refuse to cooperate. Depositions also
occur in private, which may be more conducive to candid responses than public hearings. occur in private, which may be more conducive to candid responses than public hearings.
Depositions also provide committees with an opportunity to verify witness statements that might Depositions also provide committees with an opportunity to verify witness statements that might
defame or tend to incriminate third parties before they are repeated publicly and defame or tend to incriminate third parties before they are repeated publicly and to prepare for prepare for
hearings by screening witness testimony in advance, which may obviate the need to call other hearings by screening witness testimony in advance, which may obviate the need to call other
witnesses. Congress has also enhanced the efficacy of the staff deposition process by establishing witnesses. Congress has also enhanced the efficacy of the staff deposition process by establishing
the applicability of criminal prohibition against false statements to statements made during the applicability of criminal prohibition against false statements to statements made during
congressional proceedings, including the taking of depositions.congressional proceedings, including the taking of depositions.211
213
In the House, neither the Rules Committee deposition rules nor the Committee on Oversight and In the House, neither the Rules Committee deposition rules nor the Committee on Oversight and
Reform’Government Reform's own rules provide a government witness with a right to be accompanied by agency s own rules provide a government witness with a right to be accompanied by agency
counsel. A deponent is instead entitled to be accompanied only by private, nongovernmental counsel. A deponent is instead entitled to be accompanied only by private, nongovernmental
counsel.counsel.212214 This restriction has led to some conflict with the executive branch, which has asserted that a " This restriction has led to some conflict with the executive branch, which has asserted
207 See H.Res. 8 §3(b) 117th Cong. (2021) (“During the One Hundred Seventeenth Congress, the chair of a standing
committee (other than the Committee on Rules), and the chair of the Permanent Select Committee on Intelligence, upon
consultation with the ranking minority member of such committee, may order the taking of depositions, including
pursuant to subpoena, by a member or counsel of such committee.”).
208 See U.S. Congress, Senate, Authority and Rules of Senate Committees, 2019-2020, 116th Cong., 1st sess., July 19,
2019, S. DOC. NO. 116-6 (2019).
209 See 167 Cong. Rec. H41 (daily ed. Jan. 4, 2021) (117th Congress Regulations for Use of Deposition Authority).
210 Id.
211 The false statement provision was amended in 1996 to apply to statements made during “any investigation or
review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress,
consistent with applicable rules of the House or Senate.” 18 U.S.C. §1001.
212165 Cong. Rec. H1216 (daily ed. Jan. 25, 2019) (“Witnesses may be accompanied at a deposition by personal,
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that a “congressional committee may not constitutionally compel an executive branch witness to congressional committee may not constitutionally compel an executive branch witness to
testify about potentially privileged matters while depriving the witness of the assistance of agency testify about potentially privileged matters while depriving the witness of the assistance of agency
counsel.counsel.”213"215 Denying agency counsel access to the deposition would, in the executive branch Denying agency counsel access to the deposition would, in the executive branch’s
's view, view,“"compromise the Presidentcompromise the President’'s constitutional authority to control the disclosure of privileged s constitutional authority to control the disclosure of privileged
information and to supervise the Executive Branchinformation and to supervise the Executive Branch’'s communications with congressional s communications with congressional
entities.entities.”214"216 The House has rejected this argument, concluding instead that the rule The House has rejected this argument, concluding instead that the rule “"ensures that ensures that
the Committee is able to depose witnesses in furtherance of its investigations without having in the Committee is able to depose witnesses in furtherance of its investigations without having in
the room representatives of the agency under investigation.the room representatives of the agency under investigation.”215"217 Moreover, the House notes, the Moreover, the House notes, the
rule rule“"protects the rights of witnesses by allowing them to be accompanied by personal counselprotects the rights of witnesses by allowing them to be accompanied by personal counsel”
" and permits the executive branch—and permits the executive branch—“"[t]o the extent [it] believes that an issue that would be raised [t]o the extent [it] believes that an issue that would be raised
at the deposition may implicate a valid Privilegeat the deposition may implicate a valid Privilege”"—to protect its prerogatives by raising the —to protect its prerogatives by raising the
privilege with the committee.216 Although the executive branch and congressional committees
have often resolved these disputes through the accommodations process, that was not the case in
the 116th Congress. Conflicts between the House and various executive branch officials resulted
in directives from executive branch leadership—including the Attorney General—that officials
not comply with deposition subpoenas unless accompanied by executive branch counsel.217 The
House responded by holding the Attorney General in contempt of Congress.218
privilege with the committee.218 The Subpoena Power
When possible, committees generally seek to obtain voluntary compliance with their requests for When possible, committees generally seek to obtain voluntary compliance with their requests for
documents, testimony, and other information.documents, testimony, and other information.219219 Such an approach tends to be more efficient, as Such an approach tends to be more efficient, as
many voluntary requests are complied with either in part or in full. Even when a request is met many voluntary requests are complied with either in part or in full. Even when a request is met
with resistance, the disagreement may initiate the accommodations process, a long-standing with resistance, the disagreement may initiate the accommodations process, a long-standing
practice by which negotiations between the committee and the executive agency generally lead to practice by which negotiations between the committee and the executive agency generally lead to
a resolution acceptable to both parties.a resolution acceptable to both parties.220220 Nevertheless, the Supreme Court has observed, " Nevertheless, the Supreme Court has observed,
nongovernmental counsel to advise them of their rights.”); H. Comm. on Oversight and Reform Rule 15(e) (“Witnesses
may be accompanied at a deposition by counsel to advise them of their rights.… Observers or counsel for other
persons, or for agencies under investigation, may not attend.”).
213 Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. 1, 2
(2019).
214 Id. at 3. The President’s position derives from the separation of powers and the executive branch’s need to protect
privileged information rather than from the witness’s Sixth Amendment’s right to effective assistance of counsel.
215 H. REP. NO. 116-125, at 33 (2019).
216 Id.
217 See Jonathan Shaub, Masters From Two Equal Branches of Government: Trump and Congress Play Hardball,
LAWFARE (Apr. 27, 2019).
218 See H.Res. 497, 116th Cong. (2019).
219 See, e.g., Todd David Peterson, Contempt of Congress v. Executive Privilege, 14 U. PA. J. CONST. L. 77, 105 (2011)
(noting that “Congress routinely obtains massive amounts of information from the executive branch on a daily basis,”
often through “informal requests from congressional staffers for information from a particular staffer.”)
220 The D.C. Circuit has suggested that Congress and the executive branch have an “implicit constitutional mandate” to
accommodate each other’s needs during a conflict. United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977)
(“Each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches in the particular fact situation. This aspect of our
constitutional scheme avoids the mischief of polarization of disputes.”). See also Memorandum from Ronald Reagan,
President of the United States, to the Heads of Executive Departments and Agencies on Procedures Governing
Responses to Congressional Requests for Information (Nov. 4, 1982), reprinted in H. REP. NO. 99-435, pt. 2, at 1106
(1986) (noting that the “tradition of accommodation should continue as the primary means of resolving conflicts
between the Branches.”).
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“Experience has taught that mere requests for such information often are unavailing, and also that Experience has taught that mere requests for such information often are unavailing, and also that
information which is volunteered is not always accurate or complete, so some means of information which is volunteered is not always accurate or complete, so some means of
compulsion are essential to obtain what is needed.compulsion are essential to obtain what is needed.”221"221 Thus, when Congress finds an inquiry Thus, when Congress finds an inquiry
blocked by the withholding of information, or where the traditional process of negotiation and blocked by the withholding of information, or where the traditional process of negotiation and
accommodation222accommodation222 is considered inappropriate or unavailing, a subpoena—for either testimony or is considered inappropriate or unavailing, a subpoena—for either testimony or
documents—may be used to compel compliance with congressional demands.documents—may be used to compel compliance with congressional demands.223
223
The subpoena is a well-established component of CongressThe subpoena is a well-established component of Congress’'s oversight and investigative s oversight and investigative
authority.authority.224224 In particular, the Court has repeatedly characterized the subpoena, and the process to In particular, the Court has repeatedly characterized the subpoena, and the process to
enforce it, as a enforce it, as a“"necessary and appropriate attribute of the power to legislate.necessary and appropriate attribute of the power to legislate.”225"225 In In Watkins, the , the
Supreme Court described the obligations that attach to a congressional subpoena as follows:Supreme Court described the obligations that attach to a congressional subpoena as follows:
It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to
obtain the facts needed for intelligent legislative action. It is their unremitting obligation to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to
respond to subpoenas, to respect the dignity of the Congress and its committees and to
respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation.testify fully with respect to matters within the province of proper investigation.226
226
As such, an individual—whether a member of the public or an executive branch official—has a As such, an individual—whether a member of the public or an executive branch official—has a
legal obligation to comply with a duly issued and valid congressional subpoena unless a valid and legal obligation to comply with a duly issued and valid congressional subpoena unless a valid and
overriding privilege or other legal justification excuses that compliance.227overriding privilege or other legal justification excuses that compliance.227
A properly authorized subpoena issued by a committee or subcommittee that has been delegated A properly authorized subpoena issued by a committee or subcommittee that has been delegated
that authority by the parent chamber has the same force and effect as a subpoena issued by the that authority by the parent chamber has the same force and effect as a subpoena issued by the
House or Senate itself. Senate Rule XXVI(1) and House Rule XI(2)(m)(1) presently empower all House or Senate itself. Senate Rule XXVI(1) and House Rule XI(2)(m)(1) presently empower all
standing committees and subcommittees to issue subpoenas requiring the attendance and standing committees and subcommittees to issue subpoenas requiring the attendance and
testimony of witnesses and the production of documents.testimony of witnesses and the production of documents.228228 All standing committees in the House All standing committees in the House
and some standing committees in the Senate may also issue subpoenas for depositions.229
221 McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
222 See United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (noting that the Framers relied “on the
expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic
compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective
functioning of our governmental system”).
223 Id. Each standing committee has been delegated subpoena power by House or Senate rule. See House Rule
XI(2)(m)(3); Senate Rule XXVI(1).
224 The Supreme Court has determined that the “[i]ssuance of subpoenas … has long been held to be a legitimate use by
Congress of its power to investigate.” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 (1975).
225 McGrain, 273 U.S. at 175; see also Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam); Eastland, 421 U.S. at
504-505 (“Issuance of subpoenas … has long been held to be a legitimate use by Congress of its power to
investigate.”).
226 Watkins, 354 U.S. at 187.
227 Id.
228 Special or select committees may issue subpoenas when specifically delegated that authority by Senate or House
resolution. See infra “Specialized Investigations.” In the 117th Congress, the House amended Rule XI to clarify the
scope of committee subpoena power:
Subpoenas for documents or testimony may be issued to any person or entity, whether
governmental, public, or private, within the United States, including, but not limited to, the
President, and the Vice President, whether current or former, in a personal or official capacity, as
well as the White House, the Office of the President, the Executive Office of the President, and any
individual currently or formerly employed in the White House, Office of the President, or
Executive Office of the President.
H.Res. 8, 117th Cong. (2021).
229 See “Deposition Authority” supra.
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and some standing committees in the Senate may also issue subpoenas for depositions.229
The rules governing issuance of committee subpoenas vary by committee. In the House, the vast The rules governing issuance of committee subpoenas vary by committee. In the House, the vast
majority of committees now permit the committee chair to unilaterally issue a subpoena, usually majority of committees now permit the committee chair to unilaterally issue a subpoena, usually
after giving notice to or consulting with the ranking member.after giving notice to or consulting with the ranking member.230230 In contrast, In contrast, only thein the Senate, only the Homeland Security and Governmental Affairs Committee and its Permanent Permanent
Subcommittee on Investigations Subcommittee on Investigationsin the Senate currently currently permitspermit the chair to issue a subpoena the chair to issue a subpoena
without the consent of the ranking member.231without the consent of the ranking member.231
Limitations on Challenging a Subpoena
The Supreme Court has ruled that the separation of powers and the Speech or Debate Clause The Supreme Court has ruled that the separation of powers and the Speech or Debate Clause
restrict both a witnessrestrict both a witness’'s ability to mount a legal challenge to the subpoenas ability to mount a legal challenge to the subpoena’'s validity and the s validity and the
judiciary’judiciary's ability to enjoin a subpoenas ability to enjoin a subpoena’'s issuance.s issuance.232232 For example, the recipient of a For example, the recipient of a
congressional subpoena generally may not challenge that subpoenacongressional subpoena generally may not challenge that subpoena’'s validity prior to its s validity prior to its
enforcement. Instead, the recipient may refuse to comply, risk being cited for criminal contempt enforcement. Instead, the recipient may refuse to comply, risk being cited for criminal contempt
or becoming the subject of a civil enforcement lawsuit (discussed below), and then raise the or becoming the subject of a civil enforcement lawsuit (discussed below), and then raise the
objections in the civil case or as a defense in the criminal prosecution.objections in the civil case or as a defense in the criminal prosecution.
Courts have been more amenable to third-party, pre-enforcement subpoena challenges. Such Courts have been more amenable to third-party, pre-enforcement subpoena challenges. Such
lawsuits generally arise when a committee issues a subpoena for documents not to the target of lawsuits generally arise when a committee issues a subpoena for documents not to the target of
the investigation but rather to a third-party custodian of records.the investigation but rather to a third-party custodian of records.233233 In such a scenario In such a scenario, the party the party
with a personal interest in the records is with a personal interest in the records is“"not in a position to assert its claim of constitutional right not in a position to assert its claim of constitutional right
by refusing to comply with a subpoenaby refusing to comply with a subpoena”234"234 and may instead bring suit against the neutral third and may instead bring suit against the neutral third
party to block compliance with the subpoena. The Supreme Court has suggested that the party to block compliance with the subpoena. The Supreme Court has suggested that the
Constitution Constitution“"does not bar the challenge so long as members of the [issuing committee or does not bar the challenge so long as members of the [issuing committee or
subcommittee] are not, themselves, made defendants in a suit to enjoin implementation of the subcommittee] are not, themselves, made defendants in a suit to enjoin implementation of the
subpoena.subpoena.”235
"235 Responding toNon-ComplianceNoncompliance: Subpoena Enforcement
Ultimately, the subpoena is only as effective as the means by which it is enforced. Without a Ultimately, the subpoena is only as effective as the means by which it is enforced. Without a
process by which Congress can coerce compliance or deter process by which Congress can coerce compliance or deternon-compliancenoncompliance, the subpoena would , the subpoena would
be reduced to a formalized request rather than a constitutionally based demand for information.be reduced to a formalized request rather than a constitutionally based demand for information.236
236
If a witness is initially reluctant to comply with a committee subpoena, Congress can sometimes If a witness is initially reluctant to comply with a committee subpoena, Congress can sometimes
use the application of various forms of legislative leverage, along with an informal political use the application of various forms of legislative leverage, along with an informal political
process of negotiation and accommodation, to obtain what it needs.process of negotiation and accommodation, to obtain what it needs.237237 With regard to executive With regard to executive
230 House rules provide that “[t]he power to authorize and issue subpoenas … may be delegated to the chair of the
committee under such rules and under such limitations as the committee may prescribe.” House Rule XI(2)(m).
231 See Permanent Subcommittee on Investigations, Rule 2 (“Subpoenas for witnesses, as well as documents and
records, may be authorized and issued by the Chairman, or any other Member of the Subcommittee designated by him
or her, with notice to the Ranking Minority Member.”).
232 U.S. CONST. art. I, §6, cl. 1. Eastland, 421 U.S. at 503-07 (holding that the Speech or Debate Clause of the
Constitution provides “an absolute bar to judicial interference” with such compulsory process).
233 The Supreme Court’s decision in Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020) is an example of this type of
lawsuit.
234 United States v. AT&T Co., 567 F.2d 121, 129 (D.C. Cir. 1977).
235 Eastland, 421 U.S. at 501. But see AT&T Co., 567 F.2d at 123-25 (D.C. Cir. 1977).
236 McGrain, 273 U.S. at 174 (observing that the “process to enforce” the investigatory power is “essential” to the
“legislative function”).
237 See Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing, 48
ADMIN L. REV. 109, 114 (1996) (arguing in 1996 that “Congress rarely makes use of its subpoena power” partly
because of the “benefits that each branch receives by cooperating with the other”). The D.C. Circuit has suggested that
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branch officials, Congress exercises substantial influence through the legislative control of branch officials, Congress exercises substantial influence through the legislative control of
agency authority, funding, andagency authority, funding, and, (in the case of the Senatein the case of the Senate,) confirmation of certain agency confirmation of certain agency
officials.officials.238238 The use or threatened use of these powers in a way that would impose burdens on an The use or threatened use of these powers in a way that would impose burdens on an
agency can encourage compliance with subpoenas (or make it more likely that requested agency can encourage compliance with subpoenas (or make it more likely that requested
information will be provided without need to issue a subpoena) and solidify Congressinformation will be provided without need to issue a subpoena) and solidify Congress’'s position s position
when trying to negotiate a compromise during an investigative dispute with the executive when trying to negotiate a compromise during an investigative dispute with the executive
branch.branch.239
239
Besides leveraging its general legislative powers, Congress currently employs an ad hoc Besides leveraging its general legislative powers, Congress currently employs an ad hoc
combination of methods to directly enforce its subpoenas. The two predominant methods rely on combination of methods to directly enforce its subpoenas. The two predominant methods rely on
the authority and participation of another branch of government. First, the the authority and participation of another branch of government. First, the criminal contempt
statute permits a single house of Congress to certify a contempt citation to the executive branch statute permits a single house of Congress to certify a contempt citation to the executive branch
for the criminal prosecution of an individual who has willfully refused to comply with a for the criminal prosecution of an individual who has willfully refused to comply with a
committee subpoena.committee subpoena.240240 Once the contempt citation is received, any later prosecution lies within Once the contempt citation is received, any later prosecution lies within
the control of the executive branch.the control of the executive branch.241241 Second, Congress may try to enforce a subpoena by Second, Congress may try to enforce a subpoena by
seeking a civil judgment declaring that the recipient is legally obligated to comply.seeking a civil judgment declaring that the recipient is legally obligated to comply.242242 This This
process of process of civil enforcement relies on the help of the courts to enforce congressional demands. relies on the help of the courts to enforce congressional demands.
Criminal Contempt of Congress
The criminal contempt of Congress statute, enacted in 1857 and only slightly modified since, The criminal contempt of Congress statute, enacted in 1857 and only slightly modified since,
makes the failure to comply with a duly issued congressional subpoena a criminal offense.makes the failure to comply with a duly issued congressional subpoena a criminal offense.243243 The The
statute, now codified under 2 U.S.C. § 192, provides that any person who statute, now codified under 2 U.S.C. § 192, provides that any person who“willfully”"willfully" fails to fails to
Congress and the executive branch have an “implicit constitutional mandate” to accommodate each other’s needs
during a conflict. AT&T Co., 567 F.2d at 127 (D.C. Cir. 1977) (“Each branch should take cognizance of an implicit
constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting
branches in the particular fact situation. This aspect of our constitutional scheme avoids the mischief of polarization of
disputes.”).
238 CRS Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies, by Todd Garvey
and Daniel J. Sheffner (discussing various tools that Congress may use to compel or incentivize agency compliance
with congressional demands).
239 See Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 MARQ. L. REV. 881, 931
(2014) (“Congress may use legislative authorizations and appropriations as leverage against the Executive Branch to
obtain requested information.”); Louis Fisher, Congressional Access to Information: Using Legislative Will and
Leverage, 52 DUKE L.J. 323, 325 (2002) (noting that oversight disputes are often “decided by the persistence of
Congress and its willingness to adopt political penalties for executive noncompliance. Congress can win most of the
time—if it has the will—because its political tools are formidable.”).
240 2 U.S.C. §§192, 194.
241 Although the criminal contempt statute provides that “it shall be” the U.S. Attorney’s “duty … to bring the matter
before the grand jury for its action,” the executive branch has asserted discretion in whether to present the matter to the
grand jury. See, e.g., Letter from Ronald C. Machen Jr., United States Attorney, U.S. Dep’t of Justice, to John A.
Boehner, Speaker, U.S. House of Representatives (Mar. 31, 2015); Prosecution for Contempt of Congress of an
Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 102 (1984) [hereinafter
Olson Opinion].
242 See 2 U.S.C. §§288b, 288d; 28 U.S.C. §1365; Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 94 (D.D.C.
2008) (“The Court concludes that the Committee has an implied cause of action derived from Article I to seek a
declaratory judgment concerning the exercise of its subpoena power.”). See also CRS Report RL34097, Congress’s
Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd
Garvey (discussing the two predominant subpoena enforcement mechanisms).
243 Act of Jan. 24, 1857, ch. 19, §1, 11 STAT. 155 (now codified at 2 U.S.C. §192).
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comply with a properly issued committee subpoena for testimony or documents is guilty of a comply with a properly issued committee subpoena for testimony or documents is guilty of a
misdemeanor, punishable by a substantial fine and imprisonment for up to one year.misdemeanor, punishable by a substantial fine and imprisonment for up to one year.244
244
The criminal contempt statute outlines the process by which the House or Senate may refer the The criminal contempt statute outlines the process by which the House or Senate may refer the
non-compliantnoncompliant witness to the DOJ for criminal prosecution. Under 2 U.S.C. § 194, once a witness to the DOJ for criminal prosecution. Under 2 U.S.C. § 194, once a
committee reports the failure to comply with a subpoena to its parent body, the President of the committee reports the failure to comply with a subpoena to its parent body, the President of the
Senate or the Speaker of the House is directed to Senate or the Speaker of the House is directed to“"certify[] the statement of facts certify[] the statement of facts …... to the to the
appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury
for its action.for its action.”245"245 The statute does not expressly require approval of the contempt citation by the The statute does not expressly require approval of the contempt citation by the
committee’committee's parent body, but both congressional practice and judicial decisions suggest that s parent body, but both congressional practice and judicial decisions suggest that
approval may be necessary.approval may be necessary.246
246
A successful contempt prosecution may lead to criminal punishment of the witness in the form of A successful contempt prosecution may lead to criminal punishment of the witness in the form of
incarceration, a fine, or both.incarceration, a fine, or both.247247 Because the criminal contempt statute is punitive, its use is Because the criminal contempt statute is punitive, its use is
mainly as a deterrent. In other words, while the threat of criminal contempt can be used as mainly as a deterrent. In other words, while the threat of criminal contempt can be used as
leverage to encourage compliance with a specific request, a conviction does not necessarily lead leverage to encourage compliance with a specific request, a conviction does not necessarily lead
to release of the information to Congress.to release of the information to Congress.248
248
Although approval of a criminal contempt citation under Although approval of a criminal contempt citation under §Section 194 appears to impose a mandatory 194 appears to impose a mandatory
duty on the U.S. Attorney to submit the violation to a grand jury, the executive branch has duty on the U.S. Attorney to submit the violation to a grand jury, the executive branch has
repeatedly asserted that it retains the discretion to determine whether to do so.repeatedly asserted that it retains the discretion to determine whether to do so.249249 As a result, As a result,
efforts to punish an executive branch official for efforts to punish an executive branch official fornon-compliancenoncompliance with a committee subpoena with a committee subpoena
through the criminal contempt of Congress statute through the criminal contempt of Congress statutewillis likely likely to prove unavailing in certain prove unavailing in certain
circumstances. For example, when the President directs or endorses the circumstances. For example, when the President directs or endorses thenon-compliancenoncompliance of the of the
official, such as when the official official, such as when the officialrefuses to disclose information pursuant to the President’s
decision that the information is protected bycites executive privilege, past practice suggests that the executive privilege, past practice suggests that the
DOJ is unlikely to pursue a prosecution for criminal contempt.DOJ is unlikely to pursue a prosecution for criminal contempt.250250 As a result, it would appear that As a result, it would appear that
there is not currently a credible threat of prosecution for violating 2 U.S.C. § 192 when an there is not currently a credible threat of prosecution for violating 2 U.S.C. § 192 when an
executive branch official refuses to comply with a congressional subpoena at the direction of the
244 2 U.S.C. §192. The subpoena that gives rise to the contempt must have been issued for a legislative purpose, be
pertinent to the matter under inquiry, and relate to a matter within the House or Senate committee’s jurisdiction. See
Senate Perm. Subcomm. on Investigations v. Ferrer, 199 F. Supp. 3d 125, 134–38 (D.D.C. 2016).
245 2 U.S.C. §194. The DOJ has previously obtained convictions under 2 U.S. C. §192 against executive branch
officials pursuant to plea deals without a vote of the House or Senate. See Prosecution of Contempt of Congress:
Hearing Before the Subcomm. on Admin. Law and Gov’tl Relations of the H. Comm. on the Judiciary, 98th Cong. 23-4
(1983).
246 See HOUSE PRACTICE, ch. 17 §2; Wilson v. United States, 369 F.2d 198, 201–02 (D.C. Cir. 1966) (“It has been the
consistent legislative course that the Speaker is not under a ‘mandatory’ duty to certify the report of the committee, but
on the contrary that the committee’s report is subject to further consideration on the merits by the House involved.
When the House is in session the Speaker does not automatically transmit the report of alleged contempt to the United
States Attorney. Instead as a matter of routine a member of the committee offers a resolution for the consideration of
the House involved.”).
247 2 U.S.C. §192.
248 For example, during an investigation into the White House Travel Office, contested documents were turned over to
Congress on the day a contempt resolution against the White House Counsel was scheduled for a floor vote. See H.
REP. NO. 104-874, at 47 (1997).
249 See, e.g., Letter from Ronald C. Machen Jr., United States Attorney, U.S. Dep’t of Justice, to John A. Boehner,
Speaker, U.S. House of Representatives (Mar. 31, 2015) (declining to present criminal contempt citation to a grand
jury); Olson Opinion, supra note 220, at 102.
250 See Letter from James M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House (June 28, 2012);
Olson Opinion, supra note 572, at 102.
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sitting President.251executive branch official refuses to comply with a congressional subpoena at the direction of the sitting President.251 The DOJ has been more willing to pursue a criminal contempt prosecution The DOJ has been more willing to pursue a criminal contempt prosecution
against a witness whose against a witness whosenon-compliancenoncompliance is based on the directive of a is based on the directive of a former President, at least President, at least
when the sitting President does not concur with the former Presidentwhen the sitting President does not concur with the former President’'s privilege assertion.s privilege assertion.252
252
Even when the official is not acting at the clear direction of the sitting President, the executive Even when the official is not acting at the clear direction of the sitting President, the executive
branch has contended that it retains the authority to make an independent assessment of whether branch has contended that it retains the authority to make an independent assessment of whether
the official (or former official) has in fact violated the criminal contempt statute.the official (or former official) has in fact violated the criminal contempt statute.253253 If the If the
executive branch determines either that the statute has not been violated or that a defense is executive branch determines either that the statute has not been violated or that a defense is
available that would bar the prosecution, then it available that would bar the prosecution, then it asserts that it may—in an exercise of discretion—leave a may—in an exercise of discretion—leave a
congressional citation unenforced. The criminal contempt statute, therefore, may have limited congressional citation unenforced. The criminal contempt statute, therefore, may have limited
utility as a deterrent to utility as a deterrent tonon-compliancenoncompliance with congressional subpoenas by executive branch with congressional subpoenas by executive branch
officials faced with similar circumstances.officials faced with similar circumstances.254
254 Civil Enforcement of Subpoenas
Both the House and Both the House and the Senate have also enforced subpoenas through civil suits in the federal courts Senate have also enforced subpoenas through civil suits in the federal courts
by a process known as civil enforcement. Under this process, either chamber may unilaterally by a process known as civil enforcement. Under this process, either chamber may unilaterally
authorize one of its committees or another legislative entity to file a suit in federal district court authorize one of its committees or another legislative entity to file a suit in federal district court
seeking a court order declaring that the subpoena recipient is legally required to comply with the seeking a court order declaring that the subpoena recipient is legally required to comply with the
demand for information.demand for information.255
255
A successful civil enforcement suit generally has the benefit of securing compliance with the A successful civil enforcement suit generally has the benefit of securing compliance with the
congressional subpoena—meaning the committee may obtain the information it seeks. If the court congressional subpoena—meaning the committee may obtain the information it seeks. If the court
orders compliance with the subpoena and disclosure of the information, generally after finding orders compliance with the subpoena and disclosure of the information, generally after finding
both that the subpoena is valid and that the individual has not invoked an adequate privilege both that the subpoena is valid and that the individual has not invoked an adequate privilege
justifying justifyingnon-compliancenoncompliance, continued defiance may lead to contempt of court as opposed to , continued defiance may lead to contempt of court as opposed to
contempt of Congress.256contempt of Congress.256
Although the executive branch has at times disputed CongressAlthough the executive branch has at times disputed Congress’'s authority to bring civil s authority to bring civil
enforcement lawsuits, at least against current or former executive branch officials, a enforcement lawsuits, at least against current or former executive branch officials, ahandfulnumber of of
cases dating back to the Nixon era have upheld House and Senate authority to bring such
251 See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083, 1146 (2009) (“As the president
is unlikely to authorize one of his subordinates (the United States Attorney) to file charges against another of his
subordinates who was acting according to his orders, it is safe to assume that the executive branch will generally
decline to prosecute an executive branch official for criminal contempt of Congress.”).
252 See Press Release, U.S. Dept. of Justice, Stephen K. Bannon Indicted for Contempt of Congress (Nov. 12, 2021)
(announcing the indictment of an advisor to former President Trump following President Biden’s decision not to
support the former President’s privilege assertions in the context of a congressional investigation into the events
surrounding the January 6, 2021, attempt by some supporters of the former President to prevent congressional
certification of the 2020 presidential election); CRS Legal Sidebar LSB10802, Beyond January 6th: White House
Confidentiality and Congressional Investigations, by Todd Garvey. For further discussion, see CRS Legal Sidebar
LSB10660, The Bannon Indictment and Prosecution, by Todd Garvey and Michael A. Foster.
253 See Letter from Ronald C. Machen Jr., United States Attorney, U.S. Dep’t of Justice, to John A. Boehner, Speaker,
U.S. House of Representatives (Mar. 31, 2015).
254 But see Fisher, supra note 218, at 347-59 (describing instances from 1975-2000 in which committee action on a
criminal contempt citation was effective in obtaining compliance with a congressional subpoena).
255 See 2 U.S.C. §§288b, 288d; 28 U.S.C. §1365; Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 94 (D.D.C.
2008).
256 18 U.S.C. §§401–402.
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lawsuits.257cases dating back to the Nixon era have upheld House and Senate authority to bring such lawsuits.257 Nevertheless, the scope of Congress Nevertheless, the scope of Congress’'s authority to enforce subpoenas in court, s authority to enforce subpoenas in court,
especially by the House, especially by the House,will likelymay remain the subject of continued litigation. remain the subject of continued litigation.
In the past, authorization
Authorization for a subpoena enforcement lawsuit for a subpoena enforcement lawsuit has typically beenis often provided through provided through
a simple House or Senate resolution.a simple House or Senate resolution.258258 In the Senate, the adoption of an authorizing resolution is In the Senate, the adoption of an authorizing resolution is
part of the existing statutory framework governing that chamberpart of the existing statutory framework governing that chamber’'s enforcement of subpoena in s enforcement of subpoena in
court.court.259259 The House, however, clarified during the 116th Congress that even in the absence of a The House, however, clarified during the 116th Congress that even in the absence of a
specific authorizing resolution, the chair of each standing committee also specific authorizing resolution, the chair of each standing committee also“"retains the ability to retains the ability to
initiate initiate…... any judicial proceeding before a Federal court any judicial proceeding before a Federal court …... affirming the duty of the recipient of affirming the duty of the recipient of
any subpoena duly issued by that committee to comply with that subpoenaany subpoena duly issued by that committee to comply with that subpoena”" when authorized to when authorized to
do so by the Bipartisan Legal Advisory Group (BLAG).do so by the Bipartisan Legal Advisory Group (BLAG).260260 The House further explained that The House further explained that
authorization from BLAG in the subpoena enforcement context authorization from BLAG in the subpoena enforcement context“"is the equivalent of a vote of the is the equivalent of a vote of the
full House of Representatives.full House of Representatives.”261
"261
A federal statute provides the jurisdictional basis for the SenateA federal statute provides the jurisdictional basis for the Senate’'s exercise of its civil enforcement s exercise of its civil enforcement
power.power.262262 Under 28 U.S.C. § 1365, the U.S. District Court for the District of Columbia (D.C. Under 28 U.S.C. § 1365, the U.S. District Court for the District of Columbia (D.C.
District Court) has jurisdiction District Court) has jurisdiction“"over any civil action brought by the Senate or committee or over any civil action brought by the Senate or committee or
subcommittee of the Senate to enforce subcommittee of the Senate to enforce…... any subpoena. any subpoena.”263"263 The law, however, makes clear that The law, however, makes clear that
the grant of jurisdiction is limited and the grant of jurisdiction is limited and“"shall not applyshall not apply”" to an action to enforce a subpoena issued to an action to enforce a subpoena issued
to an executive branch official acting in his or her official capacity who has asserted a to an executive branch official acting in his or her official capacity who has asserted a
“"governmental privilege.governmental privilege.”264"264 Yet at least one district court has suggested that the limitation found Yet at least one district court has suggested that the limitation found
within § 1365 does not necessarily bar the courts from exercising jurisdiction over Senate claims within § 1365 does not necessarily bar the courts from exercising jurisdiction over Senate claims
to enforce a subpoena against an executive official under other jurisdictional provisions.265
257 See generally Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974);
Committee on Oversight and Government Reform, U.S. House of Representatives v. Holder, 973 F. Supp. 2d 1 (D.D.C.
2013); Committee on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008). As of the
date of this report the D.C. Circuit is currently considering the question in pending litigation. See notes 174-79 infra.
258 See, e.g., H.Res. 706, 112th Cong. (2012) (Holder); H.Res. 980 110th Cong. (2008) (Miers and Bolten); S.Res. 377,
114th Cong. (2016) (Ferrer).
259 Since the statute’s enactment in 1979, the Senate has authorized the Office of Senate Legal Counsel to seek civil
enforcement of a subpoena for documents or testimony on various occasions but never against executive branch
officials. See CRS Report RL34097, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas:
Law, History, Practice, and Procedure, by Todd Garvey, Table A-3 (Floor Votes on Civil Enforcement Resolutions in
the Senate, 1980-Present).
260 H.Res. 430, 116th Cong. (2019).
261 Id. See House Rule II (establishing that the BLAG “speaks for, and articulates the institutional position of, the
House in all litigation matters.”); 165 CONG. REC. H30 (daily ed. Jan. 3, 2019) (statement of Rep. McGovern) (“If a
Committee determines that one or more of its duly issued subpoenas has not been complied with and that civil
enforcement is necessary, the BLAG, pursuant to House Rule II(8)(b), may authorize the House Office of General
Counsel to initiate civil litigation on behalf of this Committee to enforce the Committee’s subpoena(s) in federal
district court.”). See also CRS Report R45636, Congressional Participation in Litigation: Article III and Legislative
Standing, by Kevin M. Lewis at 43, n. 429.
262 2 U.S.C. §§288b, 288d; 28 U.S.C. §1365.
263 28 U.S.C. §1365.
264 Id. §1365(a) (“This section shall not apply to an action to enforce, to secure a declaratory judgment concerning the
validity of, or to prevent a threatened refusal to comply with, any subpoena or order issued to an officer or employee of
the executive branch of the Federal Government acting within his or her official capacity, except that this section shall
apply if the refusal to comply is based on the assertion of a personal privilege or objection and is not based on a
governmental privilege or objection the assertion of which has been authorized by the executive branch of the Federal
Government.”).
265 See Miers, 558 F. Supp. 2d at 86–87 (“In any event, the fact that §288d may create an independent cause of action
for the Senate does not establish that the Senate (or the House) could not proceed under the [Declaratory Judgment Act
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to enforce a subpoena against an executive official under other jurisdictional provisions.265
The House has no corresponding statutory framework but has previously, and successfully, The House has no corresponding statutory framework but has previously, and successfully,
authorized its committees to enforce their subpoenas in court.authorized its committees to enforce their subpoenas in court.266266 Nevertheless, the House Nevertheless, the House’s
's authority in this regard has been subject to some debate. The D.C. Circuit, for example, wrestled authority in this regard has been subject to some debate. The D.C. Circuit, for example, wrestled
with the question of civil enforcement in with the question of civil enforcement in Committee on the Judiciary v. McGahn. In . In McGahn, the , the
House initiated a suit to enforce a committee subpoena for testimony from former White House House initiated a suit to enforce a committee subpoena for testimony from former White House
Counsel CounselDonDonald McGahn. A three-judge panel initially dismissed the case. Breaking from prior McGahn. A three-judge panel initially dismissed the case. Breaking from prior
district court decisions, the opinion held that the judiciary district court decisions, the opinion held that the judiciary“"lack[ed] authority to resolve disputes lack[ed] authority to resolve disputes
between the Legislative and Executive Branches until their actions harm an entity between the Legislative and Executive Branches until their actions harm an entity‘'beyond the beyond the
[Federal] Government.[Federal] Government.’”267 That opinion, however,'"267 That opinion was reversed on appeal, with the full D.C. was reversed on appeal, with the full D.C.
Circuit holding en banc that neither the separation of powers nor principles of standing barred the Circuit holding en banc that neither the separation of powers nor principles of standing barred the
courts from hearing the Housecourts from hearing the House’'s lawsuit.s lawsuit.268268 On remand On remand, however, the three-judge panel again , the three-judge panel again
rejected the Houserejected the House’'s lawsuit, this time holding that the House lacked a cause of action.s lawsuit, this time holding that the House lacked a cause of action.269269 In In
reaching that decision, the panel relied partly on the fact that reaching that decision, the panel relied partly on the fact that“"Congress has granted an express Congress has granted an express
cause of action to the Senate—but not to the House.cause of action to the Senate—but not to the House.”270"270 Like the first panel decision on standing, Like the first panel decision on standing,
this second panel decision on whether the committee had a cause of action was vacated after it this second panel decision on whether the committee had a cause of action was vacated after it
was accepted for en banc review.was accepted for en banc review.271271 While that appeal was pending, the parties reached a While that appeal was pending, the parties reached a
settlement by which settlement by whichMr. McGahn sat for a closed-door transcribed interview.McGahn sat for a closed-door transcribed interview.272272 Pursuant to that Pursuant to that
agreement, the D.C. Circuit fully vacated the panel opinion agreement, the D.C. Circuit fully vacated the panel opinionafter finding that the committee finding that the committee
lacked a cause of action, but the en banc decision holding that the committee had standing to lacked a cause of action, but the en banc decision holding that the committee had standing to
pursue these subpoena enforcement claims remains in place.pursue these subpoena enforcement claims remains in place.273273 As such, the ultimate precedential As such, the ultimate precedential
impact of the impact of the McGahn litigation appears to have been to remove the standing hurdle to House litigation appears to have been to remove the standing hurdle to House
committees committeesutilizingusing the judiciary to enforce their subpoenas, at least in the D.C. Circuit. the judiciary to enforce their subpoenas, at least in the D.C. Circuit.
The Historical Process: Inherent Contempt
Historically, the House and Senate relied on their own institutional power to not only enforce Historically, the House and Senate relied on their own institutional power to not only enforce
congressional subpoenas but also to respond to other actions that either house viewed as
(DJA)]. Section 288d can simply be viewed as a more specific application of the general relief made available by the
DJA…. That conclusion is consistent with statements found in a contemporaneous Senate Report indicating that ‘the
statute is not intended to be a congressional finding that the federal courts do not now have the authority to hear a civil
action to enforce a subpoena against an officer or employee of the federal government.’”) (citing S. REP. NO. 95-170, at
91–92).
266 See H.Res. 706, 112th Cong. (2012) (Holder); H.Res. 980, 110th Cong. (2008) (Miers and Bolten). See Miers, 558 F.
Supp. 2d, at 78–88; Holder, 979 F. Supp. 2d, at 3.
267 Comm. on the Judiciary of the United States House of Representatives v. McGahn, 951 F.3d 510, 516 (D.C. Cir.
2020).
268 Comm. on the Judiciary of the United States House of Representatives v. McGahn, 968 F.3d 755, 760-61 (D.C. Cir.
2020).
269 Comm. on the Judiciary v. McGahn, 973 F.3d 121, 123 (D.C. Cir. 2020).
270 Id. The conference report accompanying the legislation that established the Senate procedure explained that the
relevant House committees had not yet considered the proposal for judicial enforcement of House subpoenas. H. REP.
NO. 95-1756, 95th Cong., at 80 (1978). The Senate had authorized its committees to bring lawsuits for some time before
enactment of the 1978 law. See S. Res. 262, 70th Cong. (1928) (providing that “any committee of the Senate is hereby
to bring suit … in any court of competent jurisdiction if the committee is of the opinion that the suit is necessary to the
adequate performance of the powers vested in it”).
271 Comm. on the Judiciary v. McGahn, No. 19-5331, 2020 U.S. App. LEXIS 32573 (D.C. Cir. Oct. 15, 2020).
272 See Agreement Concerning Accommodation, Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. May 12,
2021).
273 Comm. on the Judiciary v. McGahn, No. 19-5331, 2021 U.S. App. LEXIS 20759 (D.C. Cir. July 13, 2021).
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congressional subpoenas but also to respond to other actions that either house viewed as obstructing its legislative processes or prerogatives.obstructing its legislative processes or prerogatives.274 Indeed, the274 The criminal contempt statute was criminal contempt statute was
not enacted until 1857, and the courts do not appear to have entertained a civil action to enforce a not enacted until 1857, and the courts do not appear to have entertained a civil action to enforce a
congressional subpoena against an executive official until the Watergate era.congressional subpoena against an executive official until the Watergate era.275275 For much of For much of
American historyAmerican history, the House and Senate instead used what is known as the inherent contempt the House and Senate instead used what is known as the inherent contempt
power to enforce their investigative powers.power to enforce their investigative powers.
The inherent contempt power is a constitutionally based authority given to each house to The inherent contempt power is a constitutionally based authority given to each house to
unilaterally arrest and detain an individual found to be unilaterally arrest and detain an individual found to be“"obstruct[ing] the performance of the obstruct[ing] the performance of the
duties of the legislature.duties of the legislature.”276"276 The power is therefore broader in scope than the criminal contempt The power is therefore broader in scope than the criminal contempt
statute in that it may be used not only to combat subpoena statute in that it may be used not only to combat subpoenanon-compliancenoncompliance but also in response to but also in response to
other actions that could be viewed as other actions that could be viewed as“obstructing”"obstructing" or threatening either house or threatening either house’'s exercise of its s exercise of its
legislative powers.legislative powers.277
277
In practice, the inherent contempt power has been exercised using a In practice, the inherent contempt power has been exercised using a multi-stepmultistep process. Upon process. Upon
adopting a House or Senate resolution authorizing the execution of an arrest warrant by that adopting a House or Senate resolution authorizing the execution of an arrest warrant by that
chamber’chamber's Sergeant at Arms, the individual alleged to have engaged in contemptuous conduct is s Sergeant at Arms, the individual alleged to have engaged in contemptuous conduct is
taken into custody and brought before the House or Senate.taken into custody and brought before the House or Senate.278278 A hearing A hearing or “trial” follows in follows in
which allegations are heard and defenses raised.which allegations are heard and defenses raised.279 Although generally occurring279 Although the contempt hearing generally occurrs before the full before the full
body, it would appear likely that body, it would appear likely thatthe contempt hearingit could also permissibly take place before a congressional committee that reports its findings to the whole House or Senate.280 If the witness is judged guilty, the House or Senate may then direct that he or she could also permissibly take place before a
274 Congress first exercised its inherent contempt authority in 1795 when the House detained two private citizens for
attempted bribery of Members of the House. 2 ASHER C. HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES
§1599 (1907) [hereinafter HINDS’ PRECEDENTS OF THE HOUSE]. The Supreme Court first affirmed Congress’s use of the
inherent contempt power in the 1821 decision of Anderson v. Dunn, 19 U.S. 204 (1821).
275 See, e.g., Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). In
1928, members of a Senate special investigative committee brought suit to obtain documents associated with a disputed
Senate election, but the Supreme Court dismissed that claim on jurisdictional grounds due to a lack of Senate
authorization for the suit. Reed v. Delaware Cty. Comm., 277 U.S. 376, 389 (1928). JAMES HAMILTON, THE POWER TO
PROBE: A STUDY OF CONGRESSIONAL INVESTIGATIONS 197 (1976) (noting that the Senate Select Committee on
Presidential Campaign Activities’ lawsuit to enforce the subpoena issued to President Nixon was “the first civil action
to enforce a congressional subpoena issued to the executive”).
276 Jurney v. MacCracken, 294 U.S. 125, 147–48 (1935) (“No act is so punishable unless it is of a nature to obstruct the
performance of the duties of the legislature.”).
277 See Marshall v. Gordon, 243 U.S. 521, 543 (1917) (noting that inherent contempt has been used to “deal with either
physical obstruction of the legislative body in the discharge of its duties, or physical assault upon its members for
action taken or words spoken in the body, or obstruction of its officers in the performance of their official duties, or the
prevention of members from attending so that their duties might be performed, or finally with contumacy in refusing to
obey orders to produce documents or give testimony which there was a right to compel”).
278 The procedure followed by the House in the contempt citation that was at issue in Anderson v. Dunn, 19 U.S. 204
(1821), is typical of that employed in the inherent contempt cases. Thomas L. Shriner Jr., Legislative Contempt and
Due Process: The Groppi Cases, 46 IND. L. J. 480, 491 (1971) (“The House adopted a resolution pursuant to which the
Speaker ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House (to answer the
charge). When Anderson appeared, the Speaker informed him why he had been brought before the House and asked if
he had any requests for assistance in answering the charge. Anderson stated his requests, and the House granted him
counsel, compulsory process for defense witnesses, and a copy, of the accusatory letter. Anderson called his witnesses;
the House heard and questioned them and him. It then passed a resolution finding him guilty of contempt and directing
the Speaker to reprimand him and then to discharge him from custody. The pattern was thereby established of
attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges, identification of
the accuser, compulsory process, counsel, and a hearing; determination of guilt; imposition of penalty.”).
279 Id. The subject of a trial for contempt of Congress is not afforded the same procedural protections as a defendant in
a criminal trial. See Groppi v. Leslie, 404 U.S. 496, 500–01 (1972) (“The past decisions of this Court strongly indicate
that the panoply of procedural rights that are accorded a defendant in a criminal trial has never been thought necessary
in legislative contempt proceedings. The customary practice in Congress has been to provide the contemnor with an
opportunity to appear before the bar of the House, or before a committee, and give answer to the misconduct charged
against him.”).
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congressional committee who reports its findings to the whole House or Senate.280 If judged
guilty, the House or Senate may then direct that the witness be detained or imprisoned until the be detained or imprisoned until the
obstruction to the exercise of legislative power is removed.obstruction to the exercise of legislative power is removed.281281 Although the purpose of the Although the purpose of the
detention may vary, for subpoena detention may vary, for subpoenanon-compliancenoncompliance the use of the power has generally not been the use of the power has generally not been
punitive.punitive.282282 Rather, the goal is to detain the witness until he or she discloses the information Rather, the goal is to detain the witness until he or she discloses the information
sought but not beyond the end of the Congress.sought but not beyond the end of the Congress.283
283
Despite its title, Despite its title, “inherent”"inherent" contempt is more accurately characterized as an contempt is more accurately characterized as an implied constitutional constitutional
power.power.284284 The Supreme Court has repeatedly held that although the contempt power is not The Supreme Court has repeatedly held that although the contempt power is not
specifically granted by the Constitution, it is still specifically granted by the Constitution, it is still“"an essential and appropriate auxiliary to the an essential and appropriate auxiliary to the
legislative functionlegislative function”" and thus implied from the general vesting of legislative powers in and thus implied from the general vesting of legislative powers in
Congress.Congress.285285 The Court has viewed the power as one rooted in self-preservation, concluding that The Court has viewed the power as one rooted in self-preservation, concluding that
the the“"power to legislatepower to legislate”" includes an includes an “"implied right of Congress to preserve itselfimplied right of Congress to preserve itself”" by dealing by dealing
“"with direct obstructions to its legislative dutieswith direct obstructions to its legislative duties”" through contempt.286 through contempt.286
Despite its potential reach, some observers have described the inherent contempt power as Despite its potential reach, some observers have described the inherent contempt power as
cumbersome, inefficient, and cumbersome, inefficient, and“"unseemly.unseemly.”287"287 Presumably for these reasons, it does not appear that Presumably for these reasons, it does not appear that
either house has exercised its inherent contempt power to enforce subpoenas or to remove any either house has exercised its inherent contempt power to enforce subpoenas or to remove any
other obstruction to the exercise of the legislative power since the 1930s.other obstruction to the exercise of the legislative power since the 1930s.288288 Even so, the Even so, the mere
threat of arrest and detention by the Sergeant at Arms can threat of arrest and detention by the Sergeant at Arms canbe used to encourage compliance with encourage compliance with
congressional demands. For example, Senator Sam Ervin, when serving as chair of the Senate congressional demands. For example, Senator Sam Ervin, when serving as chair of the Senate
Select Committee on Presidential Campaign Activities, invoked the inherent contempt power Select Committee on Presidential Campaign Activities, invoked the inherent contempt power
several times to encourage compliance with the committeeseveral times to encourage compliance with the committee’'s requests for information during its investigation of the Nixon Administration.289s requests for information during its
280 The House has previously adopted resolutions authorizing a select committee to investigate contempt allegations
and then report its findings to the House. See 3 HINDS’ PRECEDENTS OF THE HOUSE, supra note 602, §1630 (citing
CONG. GLOBE, 38th Cong., 2nd Sess., 371 (1865).
281 See 3 HINDS’ PRECEDENTS OF THE HOUSE, supra note 602, §§1666, 1669, 1693.
282 Marshall v. Gordon, 243 U.S. 521, 544 (1917) (noting that the Court had discovered “no single instance where in
the exertion of the power to compel testimony restraint was ever made to extend beyond the time when the witness
should signify his willingness to testify”). Indeed, the Court has suggested that the power “does not embrace
punishment for contempt as punishment.” Id. at 542. But see Jurney v. MacCracken, 294 U.S. 125, 148 (1935)
(affirming exercise of contempt power even after the obstruction to the legislative process had been removed).
283 Watkins v. United States, 354 U.S. 178, 207 n.45 (1957); Anderson, 19 U.S. at 231.
284 The contempt power is an implied aspect of the legislative power. Marshall, 243 U.S. at 537 (noting that “it was yet
explicitly decided that from the power to legislate given by the Constitution to Congress there was to be implied the
right of Congress to preserve itself, that is, to deal by way of contempt with direct obstructions to its legislative
duties.”). As opposed to an inherent power, which may not be tethered to a textual grant of authority, an implied power
is derived by implication from an enumerated power. See Scott C. Idleman, The Emergence of Jurisdictional
Resequencing in the Federal Courts, 87 CORNELL L. REV. 1, 42–43 (2001).
285 McGrain v. Daugherty, 273 U.S. 135, 173–74 (1927); (“[T]he two houses of Congress, in their separate relations,
possess not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are
necessary and appropriate to make the express powers effective.…”).
286 Marshall, 243 U.S. at 537; Anderson, 19 U.S. at 228 (holding that in the absence of a contempt power the House
would be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against
it”).
287 See Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three
Powers, and Some Relationships, 1978 BYU L. REV. 231, 254 (writing that “[t]here is something unseemly about a
House of Congress getting into the business of trial and punishment”); S. REP. NO. 95-170, at 97 (1977) (describing
Congress’s inherent contempt power, which requires a trial in the House or the Senate, as “time consuming and not
very effective”).
288 CONGRESSIONAL QUARTERLY’S GUIDE TO CONGRESS 163 (3rd ed. 1982).
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investigation of the Nixon Administration.289 Although the power has long lain dormant, it Although the power has long lain dormant, it
remains a tool that Congress may use to enforce subpoenas.remains a tool that Congress may use to enforce subpoenas.290
290 Criminal Provisions Protecting the Investigative Power
Along with the criminal contempt statute already discussed, Congress has enacted various Along with the criminal contempt statute already discussed, Congress has enacted various
criminal provisions to protect the integrity of congressional investigations. While these provisions criminal provisions to protect the integrity of congressional investigations. While these provisions
generally seek to deter witnesses from misleading or obstructing congressional committees in generally seek to deter witnesses from misleading or obstructing congressional committees in
their exercise of the investigative power, they cannot be enforced directly by Congress, nor can their exercise of the investigative power, they cannot be enforced directly by Congress, nor can
committees compel enforcement by the executive branch. Instead, enforcement decisions—as committees compel enforcement by the executive branch. Instead, enforcement decisions—as
with all criminal provisions—are made wholly by the executive branch. A committee may refer a with all criminal provisions—are made wholly by the executive branch. A committee may refer a
possible offense to the DOJ with a recommendation that an investigation be initiated, but the possible offense to the DOJ with a recommendation that an investigation be initiated, but the
ultimate decision on prosecution is retained by the executive branch.291ultimate decision on prosecution is retained by the executive branch.291
Testimony Under Oath
A witness under oath before a congressional committee who willfully gives false testimony is A witness under oath before a congressional committee who willfully gives false testimony is
subject to prosecution for perjury under 18 U.S.C. § 1621. The false statement must be subject to prosecution for perjury under 18 U.S.C. § 1621. The false statement must be
“willfully”"willfully" made before a made before a “"competent tribunalcompetent tribunal”" and involve a and involve a “"material matter.material matter.”292"292 A quorum A quorum
must be present for a legislative committee to be competent for perjury purposes.must be present for a legislative committee to be competent for perjury purposes.293293 Both houses Both houses
have adopted rules establishing less than a majority of members as a quorum for taking testimony, have adopted rules establishing less than a majority of members as a quorum for taking testimony,
normally two members for House normally two members for Housecommittees294committees294 and one member for Senate committees. and one member for Senate committees.295295 The The
requisite quorum must be present at the time the alleged perjurious statement is made, not merely requisite quorum must be present at the time the alleged perjurious statement is made, not merely
at the time the session convenes.at the time the session convenes.296296 No prosecution for perjury will lie for statements made only No prosecution for perjury will lie for statements made only
in the presence of committee staff unless the committee has deposition authority and has taken in the presence of committee staff unless the committee has deposition authority and has taken
formal action to allow it.297formal action to allow it.297
Unsworn Statements
Most statements made to congressional committees at both the investigatory and the hearing Most statements made to congressional committees at both the investigatory and the hearing
phases of oversight are unsworn. Even when phases of oversight are unsworn. Even when a witness is not under oath, providing willfully false testimony is still a criminal offense.298 Under 18 U.S.C. § 1001, false statements by a person in "anynot under oath, providing willfully false testimony is
289 See Hamilton, supra note 251, at 96–97 (describing Chairman Ervin using a threat of inherent contempt to obtain
the testimony of White House aide Alexander Butterfield); id. at 160 (noting that President Nixon was “determined to
prohibit his top aides” from testifying before Congress until Chairman Ervin “threatened to dispatch the Senate
sergeant at arms to transport them to the Senate”).
290 Id. at 95 (“[T]he self-help powers of Congress remain an alternate method to nudge intransigent witnesses into
giving evidence to Congressional bodies.”).
291 See CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey at
17-20.
292 18 U.S.C. §1621(a).
293 Christoffel v. United States, 338 U.S. 84, 90 (1949).
294 House Rule XI(2)(h)(2).
295 Senate Rule XXVI(7)(a)(2) allows its committees to set quorum requirements at less than the normal one-third for
taking sworn testimony. Almost all Senate committees have set their quorum requirements at one member.
296 Christoffel, 338 U.S. at 90.
297 Perjury requires that the false statement be made under “an oath authorized by law” and before a “competent
tribunal.” Unless expressly authorized to take a deposition under oath, conversations with committee staff generally do
not fall within the scope of the perjury statute. See, e.g., United States v. Weissman, No. S2 94 Cr. 760, 1996 U.S. Dist.
LEXIS 19125 (S.D.N.Y. 1996).
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still a criminal offense.298 Under 18 U.S.C. § 1001, false statements by a person in “any
investigation or review, conducted pursuant to the authority of any committee, subcommittee, investigation or review, conducted pursuant to the authority of any committee, subcommittee,
commission or office of the Congress, consistent with applicable rules of the House and Senatecommission or office of the Congress, consistent with applicable rules of the House and Senate”
," are punishable by a fine of up to $250,000 or imprisonment for not more than five years, or are punishable by a fine of up to $250,000 or imprisonment for not more than five years, or
both.both.299299 Given the breadth, the statute would appear to apply to false statements made not only in Given the breadth, the statute would appear to apply to false statements made not only in
hearings and depositions but also other interviews with committee staff.hearings and depositions but also other interviews with committee staff.
Obstruction of a Congressional Proceeding
Federal law also criminalizes certain acts that would obstruct a congressional investigation. Federal law also criminalizes certain acts that would obstruct a congressional investigation.
Under 18 U.S.C. § 1505Under 18 U.S.C. § 1505, it is unlawful to it is unlawful to“corruptly”"corruptly" obstruct or attempt to obstruct the obstruct or attempt to obstruct the “"due and due and
proper exercise of the power of inquiry under which any inquiry or investigation is being had by proper exercise of the power of inquiry under which any inquiry or investigation is being had by
either House, or any committee of either House or any joint committee of the Congress.either House, or any committee of either House or any joint committee of the Congress.”300"300
Corruptly, for purposes of the statute, means , for purposes of the statute, means“"acting with an improper purpose, personally or by acting with an improper purpose, personally or by
influencing another, including making a false or misleading statement, or withholding, influencing another, including making a false or misleading statement, or withholding,
concealing, altering, or destroying a document or other information.concealing, altering, or destroying a document or other information.”301
"301 Limitations on Congressional Authority
The previous section established the scope of CongressThe previous section established the scope of Congress’'s investigatory power. This section briefly s investigatory power. This section briefly
addresses how the exercise of this power may be constrained by the Constitution, the common-addresses how the exercise of this power may be constrained by the Constitution, the common-
law tradition, or federal statute.law tradition, or federal statute.
Constitutional Limitations
As discussed, a congressional investigation must have a legislative purpose to be a valid exercise As discussed, a congressional investigation must have a legislative purpose to be a valid exercise
of Congressof Congress’'s authority under Article I of the Constitution.s authority under Article I of the Constitution.302302 But the investigatory power is also But the investigatory power is also
limited by constraints found elsewhere in the limited by constraints found elsewhere in thetext and structure of the Constitution. The Supreme Constitution. The Supreme
Court has observed that when demanding information, Court has observed that when demanding information,“"Congress, in common with all branches Congress, in common with all branches
of the Government, must exercise its powers subject to the limitations placed by the Constitution of the Government, must exercise its powers subject to the limitations placed by the Constitution
on governmental action,on governmental action,”" including including “"the relevant limitations of the Bill of Rights.the relevant limitations of the Bill of Rights.”303"303 As a result, As a result,
“"recipients of legislative subpoenas recipients of legislative subpoenas “retain their constitutional rights throughout the course of an retain their constitutional rights throughout the course of an
investigation.investigation.”304
"304 First Amendment
Although the First Amendment, by its terms, is expressly applicable only to Although the First Amendment, by its terms, is expressly applicable only to legislation that that
abridges freedom of speech, press, religion (establishment or free exercise), or assembly, the abridges freedom of speech, press, religion (establishment or free exercise), or assembly, the
Supreme Court has held that the First Amendment also restricts Congress in conducting oversight Supreme Court has held that the First Amendment also restricts Congress in conducting oversight
and investigations.and investigations.305305 In In Barenblatt v. United States, the Court stated that , the Court stated that “"where First where First
298 18 U.S.C. §1001.
299 Id.
300 Id. §1505.
301 Id. §1515(b).
302 See “The Constitutional Scope of the Investigative Power: Legislative Purpose” supra.
303 Barenblatt v. United States, 360 U.S. 109, 112 (1959).
304 Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020).
305 Watkins v. United States, 354 U.S. 178, 197 (1957). See also Senate Permanent Subcomm., on Investigations v.
Ferrer, 199 F. Supp. 3d 125, 138 (D.D.C. 2016) (“The underlying rationale of this precept is that ‘investigation is part
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Amendment rights are asserted to bar government interrogation resolution of the issue always Amendment rights are asserted to bar government interrogation resolution of the issue always
involves a balancing by the courts of the competing private and public interests at stake in the involves a balancing by the courts of the competing private and public interests at stake in the
particular circumstances shown.particular circumstances shown.”306"306 In balancing the personal interest in privacy against the In balancing the personal interest in privacy against the
congressional need for information, the Court has declared that congressional need for information, the Court has declared that“"the critical element is the the critical element is the
existence of, and the weight to be ascribed to, the interest of the Congress in demanding existence of, and the weight to be ascribed to, the interest of the Congress in demanding
disclosure from an unwilling witness.disclosure from an unwilling witness.”307"307 When evaluating Congress When evaluating Congress’'s interest in cases involving s interest in cases involving
the First Amendment, the Court has generally emphasized the requirements discussed above the First Amendment, the Court has generally emphasized the requirements discussed above
concerning authorization for the investigation, delegation of power to investigate to the concerning authorization for the investigation, delegation of power to investigate to the
committee involved, and the existence of a legislative purpose.308committee involved, and the existence of a legislative purpose.308
Though finding the First Amendment applicable to congressional investigations, the Supreme Though finding the First Amendment applicable to congressional investigations, the Supreme
Court has never relied on the First Amendment to invalidate a congressional subpoena or to Court has never relied on the First Amendment to invalidate a congressional subpoena or to
reverse a criminal contempt of Congress conviction. And unlike the Fifth Amendment privilege reverse a criminal contempt of Congress conviction. And unlike the Fifth Amendment privilege
against self-incrimination, it is clear that the First Amendment does not give a witness an absolute against self-incrimination, it is clear that the First Amendment does not give a witness an absolute
right to refuse to respond to congressional demands for information.right to refuse to respond to congressional demands for information.309
309
Nevertheless, First Amendment concerns can inform CongressNevertheless, First Amendment concerns can inform Congress’'s deliberations on whether to hold s deliberations on whether to hold
a non-cooperative witness in contempt of Congress. The Special Subcommittee on Investigations a non-cooperative witness in contempt of Congress. The Special Subcommittee on Investigations
of the House Committee on Interstate and Foreign Commerce (since renamed the Committee on of the House Committee on Interstate and Foreign Commerce (since renamed the Committee on
Energy and Commerce), in the course of its probe of allegations that deceptive editing practices Energy and Commerce), in the course of its probe of allegations that deceptive editing practices
were employed in producing the television news documentary program were employed in producing the television news documentary program The Selling of the
Pentagon, subpoenaed Frank Stanton, the president of CBS. He was directed to deliver to the , subpoenaed Frank Stanton, the president of CBS. He was directed to deliver to the
subcommittee the subcommittee the“outtakes”"outtakes" of the program. of the program.310310 When, on First Amendment grounds, Stanton When, on First Amendment grounds, Stanton
declined to provide the subpoenaed materials, the subcommittee unanimously voted a contempt declined to provide the subpoenaed materials, the subcommittee unanimously voted a contempt
citation. The full committee voted 25-13 to report the contempt citation to the full House.citation. The full committee voted 25-13 to report the contempt citation to the full House.311311 After After
extensive debate, the House failed to adopt the committee report, voting instead to recommit the extensive debate, the House failed to adopt the committee report, voting instead to recommit the
matter to the committee.matter to the committee.312312 During the debate, several Members expressed concern that approval of the contempt citation would have a "chilling effect" During the debate, several Members expressed concern that approval
of lawmaking’ and the ‘First Amendment may be invoked against infringement of the protected freedoms by law or by
lawmaking.’”) (citing Watkins, 354 U.S. at 197).
306 Barenblatt, 360 U.S. at 126 (1959).
307 Watkins, 354 U.S. at 198. A balancing test was also used in Branzburg v. Hayes, 408 U.S. 665 (1972), which
involved the claimed privilege of newsmen not to respond to demands of a grand jury for information. In its 5-4
decision, the Court concluded that the grand jury’s need for the information outweighed First Amendment
considerations, but the opinion indicates that “the infringement of protected First Amendment rights must be no
broader than necessary to achieve a permissible governmental purpose” and that “a State’s interest must be
‘compelling’ or ‘paramount’ to justify even an indirect burden on First Amendment rights.” Id. at 699-700; see also
Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546-47 (1963) (applying the compelling interest test
in a legislative investigation).
308 See, e.g., Barenblatt, 360 U.S. 109; Watkins, 354 U.S. 178; United States v. Rumely, 345 U.S. 41 (1953); see also 4
DESCHLER’S PRECEDENTS OF THE U.S. HOUSE OF REPRESENTATIVES, ch. 15, §10, n. 15 and accompanying text (1994).
309 Barrenblatt, 360 U.S. at 126. For a recent rejections of First Amendment defenses asserted in response to
congressional subpoenas, see Ward v. Thompson, No. 22-16473, 2022 WL 14955000 (9th Cir. Oct. 22, 2022); Senate
Permanent Subcomm., on Investigations v. Ferrer, 199 F. Supp. 3d 125, 138-44 (D.D.C. 2016).
310 The outtakes were portions of the CBS film clips that were not actually broadcast. The subcommittee wanted to
compare the outtakes with the tape of the broadcast to determine if improper editing techniques had been used.
311 H. REPT. 92-349 (1971). CBS’s legal argument was based in part on the claim that Congress could not
constitutionally legislate on the subject of editing techniques and therefore the subcommittee lacked a valid legislative
purpose for the investigation. Id. at 9.
312 See 117 CONG. REC. 23922-23926, 24603-24659, 24720-24753 (1971).
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of the contempt citation would have a “chilling effect” on the press and would unconstitutionally on the press and would unconstitutionally
involve the government in the regulation of the press.313involve the government in the regulation of the press.313
Fourth Amendment
The Fourth Amendment primarily protects congressional witnesses against subpoenas that are The Fourth Amendment primarily protects congressional witnesses against subpoenas that are
unreasonably broad or burdensome.unreasonably broad or burdensome.314314 However, the extent of this protection is not clear and has However, the extent of this protection is not clear and has
received little attention in the courts. In one of the few cases addressing the issue, the Supreme received little attention in the courts. In one of the few cases addressing the issue, the Supreme
Court held in the 1960 case Court held in the 1960 case McPhaul v. United States that a congressional subpoena seeking that a congressional subpoena seeking“"all all
records, correspondence, and memorandarecords, correspondence, and memoranda”" of an organization was of an organization was not unreasonably broad. As the unreasonably broad. As the
Court explained:Court explained:
“
"Adequacy or excess in the breath of the subpoena are matters variable in relation to the Adequacy or excess in the breath of the subpoena are matters variable in relation to the
nature,nature, purposes, and scope of the inquiry.” The subcommittee’s inquiry here was a
relatively broad one … and the permissible scope of materials that could reasonably be
purposes, and scope of the inquiry." The subcommittee's inquiry here was a relatively broad one ... and the permissible scope of materials that could reasonably be sought was necessarily equally broad. It is not reasonable to suppose that the subcommittee sought was necessarily equally broad. It is not reasonable to suppose that the subcommittee
knew precisely what books and records were kept by the [organization], and therefore the knew precisely what books and records were kept by the [organization], and therefore the
subpoena could only subpoena could only“"specify specify …... with reasonable particularity, the subjects to which the with reasonable particularity, the subjects to which the
documents … relate….” The call of the subpoena for “all records, correspondence and
memoranda”documents ... relate.... " The call of the subpoena for "all records, correspondence and memoranda" of the [organization] relating to the specified subject describes them of the [organization] relating to the specified subject describes them “"with all of the particularity the nature of the inquiry and the [subcommittee's] situation would permit.... " "The description contained in the subpoena was sufficient to with all
of the particularity the nature of the inquiry and the [subcommittee’s] situation would
permit….” “The description contained in the subpoena was sufficient to enable enable
[organization] to know what particular documents were required and to select them
adequately.”315
[organization] to know what particular documents were required and to select them adequately."315
As such, the permissible breadth of a subpoena should be considered in relation to the nature of As such, the permissible breadth of a subpoena should be considered in relation to the nature of
the committee investigation.the committee investigation.
Fifth Amendment Privilege Against Self-Incrimination
The privilege against self-incrimination afforded by the Fifth Amendment is available to a The privilege against self-incrimination afforded by the Fifth Amendment is available to a
witness in a congressional investigation.witness in a congressional investigation.316316 As such, a witness generally cannot be compelled to As such, a witness generally cannot be compelled to
provide personally incriminating testimony to a committee.317
313 See 117 CONG. REC. 24731-24732 (1971).
314 McPhaul v. United States, 364 U.S. 372 (1960); see also Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968),
cert. denied, 393 U.S. 1024 (1969). Following Carpenter v. United States, 138 S. Ct. 2206, it is conceivable that
congressional subpoenas to a third-party information holder could face new Fourth Amendment scrutiny. See id.at
2260-61 (2018) (Alito, J., dissenting) (noting that one possible consequence of applying the “broad principles that the
Court seems to embrace” may be that “[a]ll subpoenas duces tecum … compelling the production of documents will
require a demonstration of probable cause, and individuals will be able to claim a protected Fourth Amendment interest
in any sensitive personal information about them that is collected and owned by third parties”); id. at 2234 (Kennedy,
J., dissenting) (asserting that “by invalidating the Government’s use of court-approved compulsory process in this case,
the Court calls into question the subpoena practices of federal and state grand juries, legislatures, and other
investigative bodies”).
315 McPhaul, 364 U.S. at 382 (internal citations omitted).
316 Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955). For further discussion,
see CRS Legal Sidebar WSLG1813, The Fifth Amendment in Congressional Investigations, by Todd Garvey.
317 The basis for asserting the privilege has been described by the U.S. District Court for the District of Columbia as
follows:
The privilege may only be asserted when there is reasonable apprehension on the part of the
witness that his answer would furnish some evidence upon which he could be convicted of a
criminal offense … or which would reveal sources from which evidence could be obtained that
would lead to such conviction or to prosecution therefore…. Once it has become apparent that the
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provide personally incriminating testimony to a committee.317
The Supreme Court has recognized that witnesses may invoke the Fifth Amendment privilege The Supreme Court has recognized that witnesses may invoke the Fifth Amendment privilege
during a congressional investigation only with regard to disclosures that areduring a congressional investigation only with regard to disclosures that are:
1. testimonial (testimonial (“"relate a factual assertion or disclose informationrelate a factual assertion or disclose information”),318
2. "),318
self-incriminating (any disclosures that self-incriminating (any disclosures that tendstend to show guilt or to show guilt or that furnishesfurnish any any “"link in link in
the chain of evidencethe chain of evidence”" needed to prosecute), needed to prosecute),319 and
3. 319 and
compelled (not voluntarily given).compelled (not voluntarily given).320
320 Oral testimony given pursuant to a subpoena and in response to committee questioning generally Oral testimony given pursuant to a subpoena and in response to committee questioning generally
qualifies as testimonial and compelled. Therefore, the central inquiry in a congressional qualifies as testimonial and compelled. Therefore, the central inquiry in a congressional
investigation setting is typically whether the responsive testimony would be investigation setting is typically whether the responsive testimony would be“"incriminating.incriminating.”" The The
Supreme Court has taken a broad view of what constitutes incriminating testimony, reasoning that Supreme Court has taken a broad view of what constitutes incriminating testimony, reasoning that
the privilege protects any statement the privilege protects any statement“"that the witness reasonably believes could be used in a that the witness reasonably believes could be used in a
criminal prosecution or could lead to other evidence that might so be used.criminal prosecution or could lead to other evidence that might so be used.”321"321 Even a witness Even a witness
who denies any criminal wrongdoing can refuse to answer questions to avoid being who denies any criminal wrongdoing can refuse to answer questions to avoid being“"ensnared by ensnared by
ambiguous circumstances.ambiguous circumstances.”322
"322
The scope of the privilege differs significantly when a committee is demanding that the witness The scope of the privilege differs significantly when a committee is demanding that the witness
produce documents. The Supreme Court has made clear that the produce documents. The Supreme Court has made clear that themere fact that the contents of a of a
document documentmay bebeing incriminating does not mean that the document itself is protected from incriminating does not mean that the document itself is protected from
disclosure under the Fifth Amendment.disclosure under the Fifth Amendment.323323 It is only when the act of It is only when the act of producing the documents is the documents is
itself incriminating that the Fifth Amendment is triggered. That itself incriminating that the Fifth Amendment is triggered. That“"act of productionact of production”" is the only is the only
compelled act and compelled act and“"may have testimonial aspects and an incriminating effect,may have testimonial aspects and an incriminating effect,”" because a witness because a witness
would in fact be admitting that would in fact be admitting that“"the papers existed, were in his possession or control, and were the papers existed, were in his possession or control, and were
authentic.authentic.”324
This “"324
This "act of productionact of production”" doctrine creates no bright-line rules, but the Court has previously doctrine creates no bright-line rules, but the Court has previously
reasoned that where the existence and location of a document is a reasoned that where the existence and location of a document is a“"foregone conclusion,foregone conclusion,”" the the
witness witness“"adds little or nothing to the sum total of the governmentadds little or nothing to the sum total of the government’'s information by conceding that s information by conceding that
he in fact has the papers.he in fact has the papers.”325"325 In such a scenario, the privilege against self-incrimination is not In such a scenario, the privilege against self-incrimination is not
triggered because triggered because“"[t]he question is not of testimony but of surrender.[t]he question is not of testimony but of surrender.”326"326 To the contrary, it would To the contrary, it would
appear that where a committee has no appear that where a committee has no“"prior knowledge of either the existence or the whereabouts" of the documents, the act of production isprior knowledge of either the existence or the
answers to a question would expose a witness to the danger of conviction or prosecution, wider
latitude is permitted the witness in refusing to answer other questions.
United States v. Jaffee, 98 F. Supp. 191, 193-94 (D.D.C. 1951). The privilege is personal in nature and may not be
invoked on behalf of a corporation, Hale v. Henkel, 201 U.S. 43 (1906), small partnership, Bellis v. United States, 417
U.S. 85 (1974), labor union, United States v. White, 322 U.S. 694 (1944), or other “artificial” organization, Bellis, 417
U.S. at 90.
318 Doe v. United States, 487 U.S. 201, 210 (1988).
319 Hoffman v. United States, 341 U.S. 479, 486 (1951).
320 Fisher v. United States, 425 U.S. 391, 396 (1976).
321 Kastigar v. United States, 406 U.S. 441, 445 (1972).
322 Ohio v. Reiner, 532 U.S. 17, 21 (2001) (“[W]e have emphasized that one of the Fifth Amendment’s ‘basic functions
… is to protect innocent men … ‘who otherwise might be ensnared by ambiguous circumstances.’’”) (quoting
Grunewald v. United States, 353 U. S. 391, 421 (1957)). But see Simpson v. United States, 241 F.2d 222 (9th Cir. 1957)
(privilege inapplicable to questions seeking basic identifying information, such as the witness’s name and address).
323 Doe, 487 U.S. at 610 (“Where the preparation of business records is voluntary, no compulsion is present.”).
324 Id. at 612.
325 Fisher, 425 U.S. at 411.
326 In re Harris, 221 U.S. 274, 279 (1911).
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whereabouts” of the documents, the act of production will be testimonial in nature and therefore testimonial in nature and therefore
potentially privileged.potentially privileged.327
327
There is no required verbal formula for invoking the privilege. Instead, courts have suggested that There is no required verbal formula for invoking the privilege. Instead, courts have suggested that
a committee should recognize any reasonable indication that the witness is asserting his a committee should recognize any reasonable indication that the witness is asserting his
privilege.privilege.328328 Where a committee is uncertain whether the witness is invoking the privilege against Where a committee is uncertain whether the witness is invoking the privilege against
self-incrimination or is claiming some other basis for declining to answer, the committee should self-incrimination or is claiming some other basis for declining to answer, the committee should
direct the witness to specify his or her privilege or objection.direct the witness to specify his or her privilege or objection.329329 The committee retains the right to The committee retains the right to
review the assertion of the privilege by a witness to determine its validity, but the witness is not review the assertion of the privilege by a witness to determine its validity, but the witness is not
required to provide further explanation if that explanation would put him or her in peril of self-required to provide further explanation if that explanation would put him or her in peril of self-
incrimination. In addition, the privilege incrimination. In addition, the privilegewill beis recognized as waived if the waiver is made recognized as waived if the waiver is made
“"intelligently and unequivocally.intelligently and unequivocally.”330
"330
Even a proper invocation of the Fifth Amendment does not necessarily mean that a committee Even a proper invocation of the Fifth Amendment does not necessarily mean that a committee
will be unable to obtain the testimony or documents that it seeks. Under federal statute, when a will be unable to obtain the testimony or documents that it seeks. Under federal statute, when a
witness asserts the privilege, the full house or the committee conducting the investigation may witness asserts the privilege, the full house or the committee conducting the investigation may
seek a court order that (1) directs the witness to testify and (2) grants the witness immunity seek a court order that (1) directs the witness to testify and (2) grants the witness immunity
against the use of his or her testimony, or other evidence derived from this testimony, in a against the use of his or her testimony, or other evidence derived from this testimony, in a
subsequent criminal prosecution.subsequent criminal prosecution.331331 To preserve the witness To preserve the witness’'s Fifth Amendment rights, neither the s Fifth Amendment rights, neither the
immunized testimony that the witness gives nor evidence derived therefrom may be used against immunized testimony that the witness gives nor evidence derived therefrom may be used against
him or her in a subsequent criminal prosecutionhim or her in a subsequent criminal prosecution, except one for perjury or contempt relating to his except one for perjury or contempt relating to his
or her testimony.or her testimony.332332 However, the witness may be convicted of the crime (the However, the witness may be convicted of the crime (the “transaction”"transaction") on ) on
the basis of other evidence.333the basis of other evidence.333
An application for a judicial immunity order must be approved by a majority of the House or An application for a judicial immunity order must be approved by a majority of the House or
Senate or by a two-thirds vote of the full committee seeking the order.Senate or by a two-thirds vote of the full committee seeking the order.334334 The Attorney General The Attorney General
must be notified at least 10 days prior to the request for the order and can request a delay of 20 must be notified at least 10 days prior to the request for the order and can request a delay of 20
days in issuing the order.days in issuing the order.335335 Although the order to testify may be issued before the witness Although the order to testify may be issued before the witness’s
's appearance,appearance,336336 it does not become legally effective until the witness has been asked a question, it does not become legally effective until the witness has been asked a question,
has invoked privilege, and has been presented with the court order.has invoked privilege, and has been presented with the court order.337337 The court The court’'s role in issuing s role in issuing
the order has been viewed as ministerialthe order has been viewed as ministerial, and; thus, if the procedural requirements under the thus, if the procedural requirements under the
327 United States v. Hubbell, 530 U.S. 27, 45 (2000).
328 Quinn v. United States, 349 U.S. 155 (1955).
329 Emspak v. United States, 349 U.S. 190 (1955); see also Joint Comm. on Cong. Operations, 94th Cong., LEADING
CASES ON CONGRESSIONAL INVESTIGATORY POWER 63 (Comm. Print 1976).
330 Emspak, 349 U.S. at 195. See also Johnson v. Zerbst, 304 U.S. 458, 464 (1938). It remains undetermined whether
the rule of “testimonial subject matter waiver” applies to claims of privilege in congressional hearings. That doctrine
provides that if a witness provides testimony on a particular subject matter, he or she has waived the privilege against
self-incrimination as it relates to that subject only. See Brown v. United States, 356 U.S. 148 (1958); Mitchell v. United
States, 526 U.S. 314 (1999). But see Presser v. United States, 284 F.2d 233 (D.C. Cir. 1960) (suggesting that the Brown
rule applies in congressional proceedings).
331 18 U.S.C. §§6002, 6005.
332 Id. §6002(3).
333 The constitutionality of granting a witness only-use immunity, rather than transactional immunity, was upheld in
Kastigar v. United States, 406 U.S. 441 (1972).
334 18 U.S.C. §6005(a).
335 The DOJ may waive the notice requirement. Application of the Senate Permanent Subcomm. on Investigations, 655
F.2d 1232, 1236 (D.C. Cir. 1980).
336 Id. at 1237.
337 See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc).
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immunity statute have been met, the court may not refuse to issue the order or impose conditions immunity statute have been met, the court may not refuse to issue the order or impose conditions
on the grant of immunity.338on the grant of immunity.338
Fifth Amendment Due Process Rights
A witness or participant in a congressional investigation need not be accorded the same A witness or participant in a congressional investigation need not be accorded the same
procedural rights and protections that are commonly seen in adjudicative proceedings. While the procedural rights and protections that are commonly seen in adjudicative proceedings. While the
procedural protections of the Fifth Amendmentprocedural protections of the Fifth Amendment’'s Due Process Clause may apply to congressional s Due Process Clause may apply to congressional
proceedings in some limited manner, the precise proceedings in some limited manner, the precise“process”"process" that is that is “due”"due" to participants depends to participants depends
on the nature of the proceeding.on the nature of the proceeding.339339 A congressional investigation, whether conducted for A congressional investigation, whether conducted for
legislative or oversight purposes, is not a judicial or adjudicative proceeding but is instead an legislative or oversight purposes, is not a judicial or adjudicative proceeding but is instead an
“inquest”"inquest" or fact-finding proceeding. As the Supreme Court has noted, or fact-finding proceeding. As the Supreme Court has noted, “"when a general fact-when a general fact-
finding investigation is being conducted, it is not necessary that the full panoply of judicial finding investigation is being conducted, it is not necessary that the full panoply of judicial
procedures be used.procedures be used.”340"340 The D.C. Circuit, for example, has explicitly stated that The D.C. Circuit, for example, has explicitly stated that “"the the
distinguishing factorsdistinguishing factors”" between a legislative investigation and a criminal proceeding between a legislative investigation and a criminal proceeding “cause”
"cause" congressional investigations congressional investigations“"to be outside the guarantees of the due process clause of the Fifth to be outside the guarantees of the due process clause of the Fifth
Amendment….”341
Amendment.... "341
The Due Process Clause has been interpreted to establish a pertinency or relevancy requirement The Due Process Clause has been interpreted to establish a pertinency or relevancy requirement
in contempt of Congress prosecutions. The Supreme Court has held that to punish a witness for in contempt of Congress prosecutions. The Supreme Court has held that to punish a witness for
failure to comply with a congressional subpoena, the relationship of the question posed to the failure to comply with a congressional subpoena, the relationship of the question posed to the
matter under inquiry matter under inquiry“"must be brought home to the witness at the time the questions are put to must be brought home to the witness at the time the questions are put to
him.”342 “him."342 "Unless the subject matter has been made to appear with undisputable clarity, it is the Unless the subject matter has been made to appear with undisputable clarity, it is the
duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for
the record the subject under inquiry at that time and the manner in which the propounded the record the subject under inquiry at that time and the manner in which the propounded
questions are pertinent thereto.questions are pertinent thereto.”343"343 Additionally, in a contempt proceeding, to satisfy both the Additionally, in a contempt proceeding, to satisfy both the
requirement of due process requirement of due processas well asand the statutory requirement that a refusal to answer be the statutory requirement that a refusal to answer be
“"willful,willful,”" a witness should be informed of the committee a witness should be informed of the committee’'s ruling on any objections raised or s ruling on any objections raised or
privileges asserted.344privileges asserted.344
Common-Law Privileges
Congress has generally drawn an important distinction between those privileges that derive from Congress has generally drawn an important distinction between those privileges that derive from
the Constitution and those that arise from the common law.the Constitution and those that arise from the common law.345345 Whereas committees must Whereas committees must
recognize and accept properly asserted constitutional privileges during an investigation, it has recognize and accept properly asserted constitutional privileges during an investigation, it has
generally been the congressional view that investigative committees are not bound by court-
338 Application of the U.S. Senate Select Comm. on Presidential Campaign Activities, 361 F. Supp. 1270 (D.D.C.
1973). In non-binding dicta, however, the court referred to the legislative history of the statutory procedure. That
history, in the court’s view, suggested that although a court lacks power to review the advisability of granting
immunity, it may consider the jurisdiction of Congress and the committee over the subject area and the relevance of the
information that is sought to the committee’s inquiry. See id. at 1278-79.
339 Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (concluding that the concept of Due Process is “flexible and calls for
such procedural protections as the particular situation demands”).
340 Hannah v. Larche, 363 U.S. 420, 442 (1960).
341 United States v. Fort, 443 F.2d 670, 679 (D.C. Cir. 1970).
342 Deutch v. United States, 367 U.S. 456, 467-68 (1961). As the court explained in that case, there is also a separate
statutory requirement of pertinency.
343 Watkins v. United States, 354 U.S. 178, 214-15 (1957).
344 Deutch, 367 U.S. at 467-68.
345 See generally TELFORD TAYLOR, GRAND INQUEST: THE STORY OF CONGRESSIONAL INVESTIGATIONS 227-28 (1974).
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generally been the congressional view that investigative committees are not bound by court-created common-law privileges.created common-law privileges.346346 Although in practice committees at times choose to recognize Although in practice committees at times choose to recognize
common-law privileges,common-law privileges,347347 the House especially has treated the decision as a discretionary one to the House especially has treated the decision as a discretionary one to
be made by the committee by be made by the committee by“"weighing the legislative need for disclosure against any possible weighing the legislative need for disclosure against any possible
resulting injury.resulting injury.”348"348 The underlying rationale for this position has been that Congress The underlying rationale for this position has been that Congress’'s exercise of s exercise of
its constitutionally based investigative powers cannot be impeded by court-created, common-law its constitutionally based investigative powers cannot be impeded by court-created, common-law
limitations and that each chamberlimitations and that each chamber’'s exclusive power to determine the rules of its own proceedings s exclusive power to determine the rules of its own proceedings
includes the authority to establish investigative and hearing procedures that govern the treatment includes the authority to establish investigative and hearing procedures that govern the treatment
of certain privileges within those proceedings.of certain privileges within those proceedings.349
349
The Supreme CourtThe Supreme Court recently made a statement made a statement in 2020 that may be in some tension with this that may be in some tension with this
congressional practice. In nonbinding dicta, the Court stated in congressional practice. In nonbinding dicta, the Court stated inthe 2020 case of Trump v. Mazars
that, in addition to retaining their constitutional rights, recipients of a committee subpoena that, in addition to retaining their constitutional rights, recipients of a committee subpoena“"have have
long been understood to retain long been understood to retain common law and constitutional privileges with respect to certain with respect to certain
materials….”350materials.... "350 The import of this passage is unclear. A few observers have interpreted it to The import of this passage is unclear. A few observers have interpreted it to
indicate that the Court may view common-law privileges as applicable in a congressional indicate that the Court may view common-law privileges as applicable in a congressional
proceeding.proceeding.351351 That may be so, but the Court did not go so far as to state that common-law That may be so, but the Court did not go so far as to state that common-law
privileges can be used to shield information from Congress. Nor is it clear how a non-privileges can be used to shield information from Congress. Nor is it clear how a non-
constitutional, common-law privilege could be a legal constraint upon Congressconstitutional, common-law privilege could be a legal constraint upon Congress’'s exercise of its s exercise of its
implied Article I powers.implied Article I powers.352352 Instead, the passage suggests only that witnesses have been "understood" to "retain" Instead, the passage only suggests that witnesses have been
346 See, e.g., H. REP. NO 116-125 at 31 (2019) (concluding that “common law privileges … are not valid reasons to
withhold documents subject to a valid subpoena from Congress, which derives its investigative authority from the
Constitution.) Id. (citing Letter from Chairman Jason Chaffetz. et al., Committee on Oversight and Government Reform
to Huban Gowadia, Acting Administrator, Transportation Security Administration (May 2, 2017)) (“The House of
Representatives derives its authority from the United States Constitution and is bound only by the privileges derived
therefrom … neither the Committee nor the United States House of Representatives recognizes purported non-
disclosure privileges associated with the common law….”); S REP. NO 105-167 at 586 (1998) (“There is no binding
authority that the Senate and its committees are legally required to recognize common-law privileges such as the
attorney-client or work-product privilege. As a separate and equal branch of government, Congress is constitutionally
authorized to establish its own rules of procedure, so long as they do not contravene the express provisions of the
Constitution. Both the attorney-client and work-product privileges are common-law privileges established by the
courts; they have no constitutional standing (although attorney-client privilege is implicated in some of the
Constitution’s provisions). The Senate is under no obligation to recognize the attorney-client and work-product
privileges.”); H. REP. NO. 105-792 (1998) (“The historic position of the House of Representatives is that committees of
Congress are not bound to recognize any non-Constitutional privilege, such as the attorney-client privilege.”)
347 For example, in rejecting a 1955 bill that would have made common-law privileges applicable in committee
investigations, the Senate stated, “With few exceptions, it has been committee practice to observe the testimonial
privileges of witnesses with respect to communications between clergyman and parishioner, doctor and patient, lawyer
and client, and husband and wife.” S. REP. NO. 84-2, at 27-28 (1955).
348 See H. Comm. on Nat. Resources, Rule IV (“Claims of common-law privileges made by witnesses in hearings, or by
interviewees or deponents in investigations or inquiries, are applicable only at the discretion of the Chair, subject to
appeal to the Committee.”); H. Comm. on Science, Space, and Tech., Rule III (“Claims of common-law privileges
made by witnesses in hearings, or by interviewees or deponents in investigations or inquiries, are applicable only at the
discretion of the Chair, subject to appeal to the Committee.”); 1 International Uranium Control: Hearing Before the
Oversight and Investigations Subcomm. of the House Comm. on Interstate and Foreign Comm., 95th Cong. 60 (1977).
349 U.S. CONST. art. 1, §5, cl. 2.
350 Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2032 (2020) (emphasis added).
351 See, e.g., Robert Kelner and Perrin Cooke, The Supreme Court’s Mazars Decision Contains a Significant
Suggestion That Congress May Be Bound by the Attorney-Client Privilege in Congressional Investigations, INSIDE
POLITICAL LAW (July 9, 2020), https://www.insidepoliticallaw.com/2020/07/09/the-supreme-courts-mazars-decision-
contains-a-significant-suggestion-that-congress-may-be-bound-by-the-attorney-client-privilege-in-congressional-
investigations/.
352 U.S. CONST. art. VI (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof
… shall be the supreme Law of the Land”).
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“understood” to “retain” certain common-law privileges. This may have been a reference to what certain common-law privileges. This may have been a reference to what
could be described as an informal understanding—arising from House and Senate practice—that could be described as an informal understanding—arising from House and Senate practice—that
committees at times choose to recognize and accept common-law privileges, especially the committees at times choose to recognize and accept common-law privileges, especially the
attorney-client privilege. To the extent, however, that the Court was suggesting the existence of a attorney-client privilege. To the extent, however, that the Court was suggesting the existence of a
legal obligation, it would appear that neither the House nor the Senate has historically legal obligation, it would appear that neither the House nor the Senate has historically
“understood”"understood" common-law privileges to limit the power of inquiry.353 common-law privileges to limit the power of inquiry.353
Attorney-Client Privilege
The attorney-client privilege, which protects confidential communications made with an attorney The attorney-client privilege, which protects confidential communications made with an attorney
to obtain legal advice or assistance, is one of the oldest common-law exceptions to the normal to obtain legal advice or assistance, is one of the oldest common-law exceptions to the normal
principle of full disclosure in the judicial process.principle of full disclosure in the judicial process.354354 In practice, the exercise of committee In practice, the exercise of committee
discretion in accepting a claim of attorney-client privilege has turned on a discretion in accepting a claim of attorney-client privilege has turned on a“"weighing [of] the weighing [of] the
legislative need for disclosure against any possible resulting injurylegislative need for disclosure against any possible resulting injury”355"355 to the witness. to the witness.356356 On a On a
case-by-case basis, a committee can consider, among other factors:case-by-case basis, a committee can consider, among other factors:
the strength of a claimantthe strength of a claimant’'s assertion in light of the pertinence of the s assertion in light of the pertinence of the
documents or information sought to the subject of the investigation,documents or information sought to the subject of the investigation,
the practical unavailability of the documents or information from any other the practical unavailability of the documents or information from any other
source,source,
the possible unavailability of the privilege to the claimant if it had been the possible unavailability of the privilege to the claimant if it had been
raised in a judicial forum, andraised in a judicial forum, and
the committeethe committee’'s assessment of the cooperation of the witness in the matter.s assessment of the cooperation of the witness in the matter.357
357 A valid claim of attorney-client privilege is likely to receive substantial weight by the committee. A valid claim of attorney-client privilege is likely to receive substantial weight by the committee.
Doubt as to the validity of the asserted claimDoubt as to the validity of the asserted claim, however, may diminish the force of such a claim. may diminish the force of such a claim.358
358
353 In the historical example referenced by the Court for support of the proposition that witnesses are understood to
retain certain common-law privileges in congressional investigations, the committee chair stated in the course of
considering an attorney-client claim that “[i]t is well-established by congressional precedent and practice that
acceptance of a claim of attorney-client privilege rests in the sole and sound discretion of Congress, and cannot be
asserted as a matter of right.” See LOUIS FISHER, THE POLITICS OF EXECUTIVE PRIVILEGE 106 (2004). See also Michael
D. Bopp and Delisa Lay, The Availability of Common Law Privileges for Witnesses in Congressional Investigations, 35
HARV. J.L. & PUB. POL'Y 897, 905 (2012) (noting that “common law privileges are not constitutionally protected and
thus do not apply to Congress”).
354 Upjohn v. United States, 449 U.S. 383, 389 (1981); Westinghouse Electric Corp. v. Republic of the Philippines, 951
F.2d 1414, 1423 (3d Cir. 1991). See also United States v. Bisanti, 414 F.3d 168, 171 (1st Cir. 2005) (“The essential
elements of the claim of attorney-client privilege are as follows: (1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his insistance permanently protected (7) from disclosure by himself or by the
legal adviser, (8) except the protection be waived.”).
355 International Uranium Control, supra note 324, at 60.
356 Committees may also consider their statutory duty to engage in continuous oversight of the application,
administration, and execution of laws that fall within their jurisdiction. See 2 U.S.C. §190d (“[E]ach standing
committee of the Senate and the House of Representatives shall review and study, on a continuing basis, the
application, administration, and execution of those laws, or parts of laws, the subject matter of which is within the
jurisdiction of that committee.”).
357 For a recent discussion of the House’s approach to the attorney-client privilege, see David Rapallo, House Rules:
Congress and the Attorney-Client Privilege, WASH. U. L. REV. (forthcoming
2023)https://scholarship.law.georgetown.edu/facpub/2476.
358 See, e.g., H. REP. NO. 105-792 (FRANKLIN L. HANEY), at 11-15 (1988); H. REP. NO. 104-598 (JOHN M. QUINN, DAVID
WATKINS, AND MATTHEW MOORE), at 40-54 (1996); S. REP. NO. 104-191 (WILLIAM H. KENNEDY III), at 9-19 (1995); H.
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Other Common-Law Testimonial Privileges
The Federal Rules of Evidence recognize testimonial privileges for witnesses in judicial The Federal Rules of Evidence recognize testimonial privileges for witnesses in judicial
proceedings so that they need not reveal confidential communications between doctor and patient, proceedings so that they need not reveal confidential communications between doctor and patient,
husband and wife, or clergyman and parishioner.husband and wife, or clergyman and parishioner.359359 Congressional committees have not viewed Congressional committees have not viewed
themselves as legally required to allow themselves as legally required to allowa witnesswitnesses to decline to testify on the basis of these to decline to testify on the basis of these and
or similar testimonial privileges.similar testimonial privileges.360 And as previously noted, the various rules of procedure360 In addition, as previously noted, a witness in a congressional hearing is not entitled to the various procedures that are that are
generally applicable to judicial proceedings, such as the right to cross-examine and call other generally applicable to judicial proceedings, such as the right to cross-examine and call other
witnesses, need not be accorded to a witness in a congressional hearing.361
witnesses.361 Executive Privilege
Various executive privileges are sometimes invoked as a reason not to comply with congressional Various executive privileges are sometimes invoked as a reason not to comply with congressional
requests for information. The foundation for these privileges is not always clear, as some derive requests for information. The foundation for these privileges is not always clear, as some derive
from the Constitution, others from the common law, and still others from a combination of from the Constitution, others from the common law, and still others from a combination of
both.both.362
362
There is not a single There is not a single “"executive privilege.executive privilege.”" Instead, Instead, there exists"executive privilege" comprises a suite of distinct privileges, each a suite of distinct privileges, each
possessing a different—though sometimes overlapping—scope.possessing a different—though sometimes overlapping—scope.363363 The political branches, in The political branches, in
support of their oftensupport of their often -competing interests and priorities, have adopted somewhat divergent views competing interests and priorities, have adopted somewhat divergent views
on these different component privileges. Whereas Congress has generally interpreted executive on these different component privileges. Whereas Congress has generally interpreted executive
privilege narrowly, limiting its application to the types of presidential, national security, and privilege narrowly, limiting its application to the types of presidential, national security, and
diplomatic communications referenced by the Supreme Court in the seminal decision of diplomatic communications referenced by the Supreme Court in the seminal decision of United
States v. Nixon,,364364 the executive branch has historically viewed executive privilege more broadly, the executive branch has historically viewed executive privilege more broadly,
providing protections to a number of different categories of documents and communications that providing protections to a number of different categories of documents and communications that
implicate executive branch confidentiality interests.implicate executive branch confidentiality interests.365365 Under the executive branch Under the executive branch’s
's interpretation, these privileges include:interpretation, these privileges include:the
REP. NO. 99-462 (RALPH AND JOSEPH BERNSTEIN), at 13-14 (1986); International Uranium Control, note 324, at 54-60.
359 FED. R. EVID. 501.
360 See generally ATTORNEY-CLIENT PRIVILEGE: MEMORANDA OPINIONS OF THE AMERICAN LAW DIVISION, LIBRARY OF
CONGRESS, SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS OF THE HOUSE COMM. ON ENERGY AND COMM. 98th Cong.
(Comm. Print 1983).
361 United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970) (citing Hannah v. Larche, 363 U.S. 420 (1960)).
362 See infra notes 349-57 and accompanying text.
363 In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997) (noting that “executive officials have claimed a variety of
privileges to resist disclosure of information”). See also John E. Bies, Primer on Executive Privilege and the Executive
Branch Approach to Congressional Oversight, LAWFARE (June 16, 2017) ( “[A] review of executive branch practice
identifies a number of categories of information that the executive branch, at least, believes may be protected by an
invocation of the privilege.”).
364 See H. COMM. ON OVERSIGHT AND GOV’T REFORM, 110TH CONG., REP. ON PRESIDENT BUSH’S ASSERTION OF
EXECUTIVE PRIVILEGE IN RESPONSE TO THE COMMITTEE SUBPOENA TO ATTORNEY GENERAL MICHAEL B. MUKASEY 8
(Comm. Print 2008) (“The Attorney General’s argument that the subpoena implicates the ‘law enforcement
component’ of executive privilege is equally flawed. There is no basis to support the proposition that a law
enforcement privilege, particularly one applied to closed investigations, can shield from congressional scrutiny
information that is important for addressing congressional oversight concerns. The Attorney General did not cite a
single judicial decision recognizing this alleged privilege.”); H.R. REP. NO. 105-728, at 16 n. 43 (1998) (“As the D.C.
Circuit has recently held, the doctrine of executive privilege which arises from the constitutional separation of powers
applies only to decisionmaking of the President. Since the subject of the Committee’s subpoena is not one that does (or
legally could) involve Presidential decisionmaking, no constitutional privilege could be invoked here.”) (citations
omitted).
365 See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive
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the state secrets privilege, which protects certain military, diplomatic, and state secrets privilege, which protects certain military, diplomatic, and
national security information;national security information;366
366
the presidential communications privilege, which generally protects the presidential communications privilege, which generally protects
confidential communications between the President and his advisors that confidential communications between the President and his advisors that
relate to presidential decisionmaking, as well as a certain subset of relate to presidential decisionmaking, as well as a certain subset of
communications not involving the President but nonetheless made for communications not involving the President but nonetheless made for
purposes of advising the President;purposes of advising the President;367
367
the deliberative process privilege, which protects predecisional and the deliberative process privilege, which protects predecisional and
deliberative communications within executive branch agencies;deliberative communications within executive branch agencies;368 and
368 and
the law enforcement privilege, which protects the contents of open (and the law enforcement privilege, which protects the contents of open (and
sometimes closed) law enforcement files, including communications related sometimes closed) law enforcement files, including communications related
to investigative and prosecutorial decisionmaking.to investigative and prosecutorial decisionmaking.369
369 The executive branch has tended to consolidate these various privileges into one The executive branch has tended to consolidate these various privileges into one “"executive executive
privilege,privilege,”" particularly when responding to congressional investigative requests. particularly when responding to congressional investigative requests.370370 Congressional Congressional
committees, on the other hand, have typically distinguished between the different individual committees, on the other hand, have typically distinguished between the different individual
privileges.privileges.371
371
There are various reasons the executive privileges may appropriately be treated as distinct. They There are various reasons the executive privileges may appropriately be treated as distinct. They
protect different types of communications and appear to arise from different sources of law (e.g., protect different types of communications and appear to arise from different sources of law (e.g.,
the Constitution, judicial common law, or history and practice)the Constitution, judicial common law, or history and practice), with some more firmly established with some more firmly established
in judicial precedent than others. As a result, the privileges apply with different strengths and are in judicial precedent than others. As a result, the privileges apply with different strengths and are
balanced against judicial or congressional needs in different ways. For example, when faced with balanced against judicial or congressional needs in different ways. For example, when faced with
a dispute over compelled disclosure, courts have a dispute over compelled disclosure, courts have“"traditionally shown the utmost deferencetraditionally shown the utmost deference”" to to
presidential claims of a need to protect military or diplomatic secrets.presidential claims of a need to protect military or diplomatic secrets.372372 The President The President’'s more s more
generalized interest in the confidentiality of his other communications (the presidential generalized interest in the confidentiality of his other communications (the presidential
communications privilege), though also arising implicitly from the Constitution, has not been communications privilege), though also arising implicitly from the Constitution, has not been
“"extended this high degree of deferenceextended this high degree of deference”373"373 and may be overcome by Congress when access is and may be overcome by Congress when access is
“"demonstrably critical to the responsible fulfillment of the Committeedemonstrably critical to the responsible fulfillment of the Committee’'s function.s function.”374"374 The other The other
Privilege, 8 Op. O.L.C. 101, 116 (May 30, 1984) (“The scope of executive privilege includes several related areas in
which confidentiality within the Executive Branch is necessary for the effective execution of the laws.”).
366 See Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154 (June 19,
1989).
367 See Assertion of Executive Privilege Regarding White House Counsel’s Office Documents, 20 Op. O.L.C. 2 (May
23, 1996).
368 See Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation into
Operation Fast and Furious, 2012 OLC LEXIS 4 (June 29, 2012).
369 See Protective Assertion of Executive Privilege Over Unredacted Mueller Report and Related Investigative Files, 43
Op. O.L.C. 374 (Nov. 30, 1982).
370 See 8 Op. O.L.C. 101, supra note 340, at 116 (reasoning that “[t]he scope of executive privilege includes several
related areas”); 13 Op. O.L.C. 153, supra note 341, at 154 (reasoning that “the executive branch’s interest in keeping
the information confidential” is “usually discussed in terms of “‘executive privilege’”).
371 See supra note 339.
372 United States v. Nixon, 418 U.S. 683, 710 (1974).
373 Id. at 711.
374 Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974). Although
it appears that former Presidents may assert the presidential communications privilege over communications made
while in office, that claim appears to be weakened when the sitting President does not concur with the former
President’s privilege claim. See Trump v. Thompson, No. 21-5254, 2021 U.S. App. LEXIS 36315, at *6 (D.C. Cir.
Dec. 9, 2021), application for stay of mandate and injunction pending review denied, No. 21A272, 2022 U.S. LEXIS
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privileges have been given less weight and must be assessed differently in the face of an exercise privileges have been given less weight and must be assessed differently in the face of an exercise
of Congressof Congress’'s investigative powers. For example, when compared to the presidential s investigative powers. For example, when compared to the presidential
communications privilege, the deliberative process privilege is more easily overcome by communications privilege, the deliberative process privilege is more easily overcome by
Congress and Congress and“"disappears altogether when there is any reason to believe government misconduct disappears altogether when there is any reason to believe government misconduct
occurred.occurred.”375"375 The legal source of the deliberative process privilege also appears to be different The legal source of the deliberative process privilege also appears to be different
from the presidential communications privilege, as the former arises from the presidential communications privilege, as the former arises“primarily”"primarily" from the from the
common commonlaw376law376 but may have a but may have a “"constitutional dimension,constitutional dimension,”377"377 whereas the latter is whereas the latter is “"inextricably inextricably
rooted in the separation of powers.rooted in the separation of powers.”378"378 Least potent are those executive privileges that arise purely Least potent are those executive privileges that arise purely
from historical practice or reflect the judicial common law. These have generally been viewed, at from historical practice or reflect the judicial common law. These have generally been viewed, at
least by Congress, as legally insufficient to justify least by Congress, as legally insufficient to justifynon-compliancenoncompliance with a congressional with a congressional
subpoena.subpoena.379
379
Of the various executive privileges, the deliberative process privilege is most frequently Of the various executive privileges, the deliberative process privilege is most frequently
implicated in congressional oversight investigations because it gives protection to the implicated in congressional oversight investigations because it gives protection to thevery
decisionmaking process that Congress is often intent on understanding.decisionmaking process that Congress is often intent on understanding.380380 The purpose underlying The purpose underlying
the privilege is to protect the the privilege is to protect the“‘"'quality of agency decisionsquality of agency decisions’' by allowing government officials by allowing government officials
freedom to debate alternative approaches in private.freedom to debate alternative approaches in private.”381"381 But the deliberative process privilege But the deliberative process privilege
applies only to those documents and communications that are applies only to those documents and communications that are predecisional, meaning they are , meaning they are
created prior to the agency reaching its final decision, and created prior to the agency reaching its final decision, and deliberative, meaning they relate to the , meaning they relate to the
thought process of executive officials and are not purely factual.thought process of executive officials and are not purely factual.382382 The privilege does not protect The privilege does not protect
entire documents. Rather, the executive branch must disclose non-privileged factual information entire documents. Rather, the executive branch must disclose non-privileged factual information
that can be reasonably segregated from privileged information in the requested documents. And
589 (U.S. Jan. 19, 2022) (stating that the appellate court’s discussion of “President Trump’s status as a former President
must [] be regarded as nonbinding dicta”); Nixon v. GSA, 433 U.S. 425, 448, 451 (1999) (concluding that “a former
President is in less need of” the privilege “than an incumbent” and that the “expectation of the confidentiality of
executive communications [is]... subject to erosion over time after an administration leaves office”).
375 In re Sealed Case, 121 F.3d at 746.
376 In In re Sealed Case, the D.C. Circuit determined that “the deliberative process privilege is primarily a common law
privilege” but that “[s]ome aspects of the privilege, for example the protection accorded the mental processes of agency
officials, have roots in the constitutional separation of powers.” 121 F.3d at 745, 737 n.4. Later, in Committee on
Oversight & Gov’t Reform v. Lynch, a district court “determined that there is an important constitutional dimension to
the deliberative process aspect of the executive privilege, and that the privilege could be properly invoked in response
to a legislative demand.” See 156 F. Supp. 3d 101, 104 (D.D.C. 2016).
377 The scope and source of the law enforcement privilege is unclear, particularly when asserted in the context of
congressional investigations where committees have voiced consistent objections to its use. The executive branch
asserts that the law enforcement privilege is constitutionally based, deriving from both the President’s responsibility to
“faithfully execute the law” under Article II and constitutionally rooted individual trial and privacy rights. See
Congressional Subpoenas of Department of Justice Investigative Files, 8 Op. O.L.C. 252 (Oct. 17, 1984). Committees,
on the other hand, have previously viewed the executive branch’s position on the confidentiality of law enforcement
information as a nondisclosure “policy” rather than a constitutionally based privilege. See H. COMM. ON OVERSIGHT
AND GOV’T REFORM, 110TH CONG., REP. ON PRESIDENT BUSH’S ASSERTION OF EXECUTIVE PRIVILEGE IN RESPONSE TO THE
COMMITTEE SUBPOENA TO ATTORNEY GENERAL MICHAEL B. MUKASEY 8 (Comm. Print 2008).
378 Nixon, 418 U.S. at 708.
379 See supra notes 341-50 and accompanying text.
380 Given its broad scope, the deliberative-process privilege is “the most frequent form of executive privilege raised.” In
re Sealed Case, 121 F.3d at 737.
381 Id. at 737 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)).
382 See Assassination Archives & Research Ctr. v. CIA, No. 18-5280, 2020 U.S. App. LEXIS 40001, at *5-6 (D.C. Cir.
Dec. 21, 2020) (“The privilege covers information that is both ‘predecisional’ and ‘deliberative.’ Documents are
predecisional if they were ‘generated before the adoption of an agency policy,’ and deliberative if they ‘reflect[] the
give-and-take of the consultative process.’”) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866
(D.C. Cir. 1980).
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like the other executive privileges,383that can be reasonably segregated from privileged information in the requested documents. Like the other executive privileges,383 the deliberative process privilege is overcome by an the deliberative process privilege is overcome by an
adequate showing of need.adequate showing of need.384
384
The relatively few judicial opinions that have addressed executive privilege disputes between The relatively few judicial opinions that have addressed executive privilege disputes between
Congress and the executive branch suggest that a reviewing courtCongress and the executive branch suggest that a reviewing court’'s view of the legislative s view of the legislative
purpose and interests underlying a committee investigation plays a significant role in a courtpurpose and interests underlying a committee investigation plays a significant role in a court’s
's willingness to enforce a subpoena.willingness to enforce a subpoena.385385 That purpose is articulated by the investigating committee, That purpose is articulated by the investigating committee,
but its weight may be colored by various outside factors, including but its weight may be colored by various outside factors, includingactions of the Presidentthe President's actions. For . For
example, in example, in Senate Select Committee on Presidential Campaign Activities v. Nixon, a case , a case
involving a subpoena issued by a Senate committee for President Nixoninvolving a subpoena issued by a Senate committee for President Nixon’'s White House tapes, the s White House tapes, the
D.C. Circuit held that the committeeD.C. Circuit held that the committee’'s need for the tapes was insufficient to overcome the s need for the tapes was insufficient to overcome the
President’President's claim of executive privilege.s claim of executive privilege.386386 In reaching that decision, the court took a dim view of In reaching that decision, the court took a dim view of
the committeethe committee’'s asserted oversight and legislative fact-finding purposes. The court characterized s asserted oversight and legislative fact-finding purposes. The court characterized
the committeethe committee’'s need for the tapes to conduct oversight of the Nixon Administration as s need for the tapes to conduct oversight of the Nixon Administration as “"merely merely
cumulative”cumulative" given that many of the tapes had already been obtained by the House in its ongoing given that many of the tapes had already been obtained by the House in its ongoing
impeachment investigation.impeachment investigation.387387 The committee The committee’'s legislative fact-finding purpose fared no better s legislative fact-finding purpose fared no better
in the court's view and was similarly undercut by the fact that President Nixon had publicly released transcripts of and was similarly undercut by the fact that President Nixon had publicly released transcripts of
the tapes. Those transcripts, the court reasoned, were a suitable substitute for the tapesthe tapes. Those transcripts, the court reasoned, were a suitable substitute for the tapes, since the since the
“"most precise evidencemost precise evidence”" is not necessary for Congress to make is not necessary for Congress to make “"legislative judgmentslegislative judgments”" that that
“"normally depend more onnormally depend more on ... political acceptability, than on precise reconstruction of past ... political acceptability, than on precise reconstruction of past
events.events.... ”388
"388
The D.C. Circuit The D.C. Circuit recently took a different view of the legislative interests underlying the House took a different view of the legislative interests underlying the House
investigation into the January 6, 2021, investigation into the January 6, 2021,attempt to violently disrupt the congressional certification
of the 2020 presidential election.389attack on the U.S. Capitol.389 In In Trump v. Thompson, the court heard a claim brought by , the court heard a claim brought by
then-former President Donald Trump seeking to block the National Archives from disclosing his former President Donald Trump seeking to block the National Archives from disclosing his
presidential records to the House Select Committee to Investigate the January 6th Attack on the presidential records to the House Select Committee to Investigate the January 6th Attack on the
United States Capitol on the grounds that the records were protected by the presidential United States Capitol on the grounds that the records were protected by the presidential
communications privilege.communications privilege.390390 Notably, Notably, then-President Biden had explicitly determined that an assertion President Biden had explicitly determined that an assertion
of executive privilege was, in light of the of executive privilege was, in light of the“"unique and extraordinary circumstances,unique and extraordinary circumstances,”" not not
warranted.391
383 See Nixon, 418 U.S. at 707 (holding that the presidential communications privilege is not “absolute” or
“unqualified”); Senate Select, 498 F.2d at 731.
384 See Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112(D.D.C. 2016) (finding that a
congressional committees need for deliberative materials outweighed the executive branch’s interest in confidentiality).
385 See Trump v. Thompson, No. 21-5254, 2021 U.S. App. LEXIS 36315, at *47 (D.C. Cir. Dec. 9, 2021), application
for stay of mandate and injunction pending review denied, No. 21A272, 2022 U.S. LEXIS 589 (U.S. Jan. 19, 2022);
Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112 (D.D.C. 2016); Senate Select Comm. on
Presidential Campaign Activities v. Nixon, 498 F.2d 725, 733 (D.C. Cir. 1974) (noting that “[w]e must ... consider the
nature of [the Committe’s] need when we are called upon” to order the President to “disclose to the Committee records
of conversations between himself and his principal aides”).
386 Senate Select, 498 F.3d at 733.
387 Id. at 732.
388 Id.
389 Thompson, 2021 U.S. App. LEXIS 36315.
390 Id. at *24, n.6 (“The only privilege at issue in this appeal is the constitutionally based presidential communications
privilege.”).
391 Id. at *4.
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warranted.391
The D.C. CircuitThe D.C. Circuit’'s opinion in s opinion in Thompson began by reaffirming that began by reaffirming that “, "[i]n cases concerning a claim [i]n cases concerning a claim
of executive privilege, the bottom-line question has been whether a sufficient showing of need for of executive privilege, the bottom-line question has been whether a sufficient showing of need for
disclosure has been made so that the claim of presidential privilege disclosure has been made so that the claim of presidential privilege‘'must yield.must yield.’”392'"392 In assessing In assessing
whether the committee had shown such a need, the court noted that President Bidenwhether the committee had shown such a need, the court noted that President Biden’'s decision s decision
not to assert executive privilege not to assert executive privilege“"substantially substantially ‘'detracts from the weight ofdetracts from the weight of’' former President former President
Trump’Trump's contrary privilege contention.s contrary privilege contention.”393"393 But rather than adopt a specific standard to govern But rather than adopt a specific standard to govern
disputes between congressional committees and a former President, the court instead held that disputes between congressional committees and a former President, the court instead held that
“"[u]nder [u]nder any of the tests advocated by former President Trump, the profound interests in of the tests advocated by former President Trump, the profound interests in
disclosure advanced by President Biden and the January 6th Committee far exceed his generalized disclosure advanced by President Biden and the January 6th Committee far exceed his generalized
concerns for Executive Branch confidentiality.concerns for Executive Branch confidentiality.”394
"394
In bothIn both Thompson andand Senate Select Committee, the D.C. Circuit characterized the circumstances , the D.C. Circuit characterized the circumstances
of the applicable congressional investigation as unusual, possibly in an effort to limit each of the applicable congressional investigation as unusual, possibly in an effort to limit each
opinion’opinion's impact on future interbranch disputes over executive privilege.s impact on future interbranch disputes over executive privilege.395395 But But Thompson
contrasts with contrasts with Senate Select Committee in two key ways. First, in in two key ways. First, in Thompson, the actions of the sitting , the actions of the sitting
President strengthenedPresident strengthened, rather than weakened rather than weakened, Congress Congress’'s interests in disclosure.s interests in disclosure.396396 And second, in And second, in
stark comparison to comparison to Senate Select Committee, the court in , the court in Thompson took a robust view of the took a robust view of the
House’House's interests in obtaining the requested information. The committees interests in obtaining the requested information. The committee’'s investigation was s investigation was
“vital”"vital" and served a and served a “"uniquely weighty interest.uniquely weighty interest.”397 “"397 "The very essence of the Article I power is The very essence of the Article I power is
legislating,legislating,”" the court reasoned, the court reasoned, “"and so there would seem to be few, if any, more imperative and so there would seem to be few, if any, more imperative
interests squarely within Congressinterests squarely within Congress’'s wheelhouse than ensuring the safe and uninterrupted conduct s wheelhouse than ensuring the safe and uninterrupted conduct
of its constitutionally assigned business.of its constitutionally assigned business.”398"398 As a result, the court reasoned that under any As a result, the court reasoned that under any
applicable standard, even one reserved for executive privilege claims made by a sitting President, applicable standard, even one reserved for executive privilege claims made by a sitting President,
the former Presidentthe former President’'s interests in confidentiality must succumb to the committees interests in confidentiality must succumb to the committee’'s heightened s heightened
interest in access.interest in access.
Former President TrumpFormer President Trump immediately asked the Supreme Court to stay the circuit court decision asked the Supreme Court to stay the circuit court decision
and block the National Archives from transferring the records to the committee. That appeal was and block the National Archives from transferring the records to the committee. That appeal was
denied, thereby effectively affirming the D.C. Circuit ruling.denied, thereby effectively affirming the D.C. Circuit ruling.399 But in399 In a brief order a brief order, however, the Supreme , the Supreme
Court clarified thatCourt clarified that, because the D.C. Circuit had because the D.C. Circuit had“"concluded that President Trumpconcluded that President Trump’'s claims would s claims would
have failed even if he were the incumbent ... have failed even if he were the incumbent ...Any[,] [a]ny discussion of ... President Trump discussion of ... President Trump’'s status as a s status as a
former President must therefore be regarded as nonbinding dicta.former President must therefore be regarded as nonbinding dicta.”400"400 Nevertheless, the D.C. Nevertheless, the D.C.
Circuit’Circuit's holding that even a sitting Presidents holding that even a sitting President’'s interest in confidentiality would s interest in confidentiality would succumbyield to the to the
committee’committee's unique and substantial interest in disclosure remains unaltered and stands as a s unique and substantial interest in disclosure remains unaltered and stands as a
392 Id. at *45.
393 Id. at *53 (citing Nixon, 433 U.S. at 439.)
394 Id. at *46 (emphasis added). These tests included those established in Trump v Mazars, 140 S. Ct. 2019, 2035-36
(2020) (congressional subpoena for personal presidential records), Senate Select, 498 F.2d at 731 (congressional
subpoena for official records of sitting president) and U.S. v. Nixon, 418 U.S. 683, 686 (1974) (judicial subpoena to
sitting president).
395 Id. at 46 (noting a “rare and formidable alignment of factors”); Senate Select, 498 F.2d at 733 (noting the “peculiar
circumstances of this case”).
396 Thompson, 2021 U.S. App. LEXIS 36315, at *47-52.
397 Id. at *47, 53.
398 Id. at 54.
399 Trump v. Thompson, No. 21A272, 2022 U.S. LEXIS 589 (U.S. Jan. 19, 2022) (denying application for stay of
mandate).
400 Id.
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reminder of the principle that the presidential communications privilege is not absolute and can reminder of the principle that the presidential communications privilege is not absolute and can
be overcome by Congress.be overcome by Congress.
Statutory Limits on Congressional Access to Information
In rare circumstances, Congress has chosen to enact laws that limit its own ability to access In rare circumstances, Congress has chosen to enact laws that limit its own ability to access
specific types of information. One example of such self-limiting action is 26 U.S.C. § 6103(f), specific types of information. One example of such self-limiting action is 26 U.S.C. § 6103(f),
under which the House Committee on Ways and Means, the Senate Committee on Finance, and under which the House Committee on Ways and Means, the Senate Committee on Finance, and
the Joint Committee on Taxation are permitted access to individualsthe Joint Committee on Taxation are permitted access to individuals’' tax returns. tax returns.401401 For any other For any other
committee to receive such information, the House or Senate must pass a committee to receive such information, the House or Senate must pass aresolution402resolution402 specifying specifying
the purpose for which the information is to be furnished and that the requested information cannot the purpose for which the information is to be furnished and that the requested information cannot
be reasonably obtained from any other source.be reasonably obtained from any other source.403403 The information is to be provided only when the The information is to be provided only when the
requesting committee is sitting in closed executive session.requesting committee is sitting in closed executive session.404
Other404
Another commonly cited commonly cited set of statutory restrictions on oversightstatutory restrictions on oversight are Title 50, Sections 3091-3093, of the
U.S. Code, which relate, 50 U.S.C. §§ 3091–3093, relates to foreign intelligence activities. Section 3091 governs congressional to foreign intelligence activities. Section 3091 governs congressional
oversight of oversight of“"intelligence activitiesintelligence activities”405" generally. generally.405 It requires that the President ensure that It requires that the President ensure that
congressional intelligence committees are congressional intelligence committees are“"fully and currently informedfully and currently informed”" of intelligence of intelligence
activities406 and “promptly”activities406 and "promptly" notified of illegal intelligence activities. notified of illegal intelligence activities.407407 Section 3092 governs Section 3092 governs
oversight of intelligence activities that are not covert actions, and oversight of intelligence activities that are not covert actions, andSection §3093 governs oversight 3093 governs oversight
of covert actions. Each section imposes a duty on the Director of National Intelligence and the of covert actions. Each section imposes a duty on the Director of National Intelligence and the
heads of other entities involved in intelligence activities toheads of other entities involved in intelligence activities to
:
with due regard for the protection from unauthorized disclosure of classified information with due regard for the protection from unauthorized disclosure of classified information
relating to sensitive intelligence sources and methods or other exceptionally relating to sensitive intelligence sources and methods or other exceptionally sensitive sensitive
matters matters…... keep the congressional intelligence committees fully and currently informed of keep the congressional intelligence committees fully and currently informed of
all intelligence activities, other than a covert actionall intelligence activities, other than a covert action[,] . ..… which are the responsibility of, are which are the responsibility of, are
engaged in by, or are carried out for or on behalf of, any department, agency, or entity of engaged in by, or are carried out for or on behalf of, any department, agency, or entity of
the United States Government.the United States Government.408
408
Self-imposed limits on congressional oversight powers raise the question of whether statutes that Self-imposed limits on congressional oversight powers raise the question of whether statutes that
generally prohibit public disclosure of information also restrict congressional access.generally prohibit public disclosure of information also restrict congressional access.409 Federal Federal
courts have held that the executive branch and private parties may not withhold documents from
401 26 U.S.C. §6103(f)(1). Returns are to be submitted to the requesting committee in a manner that protects the privacy
of the individual. In the event that information identifying (either directly or indirectly) any tax filer is requested, it may
be furnished to the committee only “when sitting in closed executive session unless such taxpayer otherwise consents
in writing to such disclosure.” Id.
402 In the case of other joint or special committees, a concurrent resolution is required. Id.
403 Id. §6103(f)(3).
404 Id.
405 Intelligence activities is defined to include “covert actions” and “financial intelligence activities” but is not further
defined in law. 50 U.S.C. §3091(f). Covert action is also defined in statute. 50 U.S.C. §3093(e). Intelligence activities
is defined by Executive Order 12333, as amended, as “all activities that agencies within the Intelligence Community
are authorized to conduct pursuant to this Order.” Executive Order 12333, “United States Intelligence Activities,” 46
Fed. Reg. 59941 (Dec. 4, 1981). Additionally, detailed definitions of intelligence activities and intelligence-related
activities are contained in the Senate resolution establishing the Senate Select Committee on Intelligence and the House
rule establishing the House Permanent Select Committee on Intelligence. See S.Res. 400, 94th Cong., §14(a); House
Rule X(11).
406 This requirement includes reporting on “significant anticipated intelligence activity as required by this subchapter.”
50 U.S.C. §3091(a).
407 50 U.S.C. §3091(a).
408 50 U.S.C. §§3092(a), 3093(b).
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courts have held that the executive branch and private parties may not withhold documents from Congress based on a law that restricts public disclosure, because the release of information to a Congress based on a law that restricts public disclosure, because the release of information to a
congressional requestor is not considered to be a disclosure to the general public.congressional requestor is not considered to be a disclosure to the general public.409410 In addition, In addition,
many confidentiality statutes contain explicit exceptions for disclosure to Congress.many confidentiality statutes contain explicit exceptions for disclosure to Congress.410
411
From time to timeFrom time to time, the President and other executive branch entities, as well as private parties, the President and other executive branch entities, as well as private parties,
have argued that certain statutes of general applicability prevent the disclosure of confidential or have argued that certain statutes of general applicability prevent the disclosure of confidential or
sensitive information to congressional committees. For example, a frequently cited statute to sensitive information to congressional committees. For example, a frequently cited statute to
justify nondisclosure is the Trade Secrets Act, a criminal provision that generally prohibits the justify nondisclosure is the Trade Secrets Act, a criminal provision that generally prohibits the
disclosure of trade secrets and other confidential business information by a federal officer or disclosure of trade secrets and other confidential business information by a federal officer or
employee employee“"unless otherwise authorized by law.unless otherwise authorized by law.”411"412 A review of the Trade Secrets Act A review of the Trade Secrets Act’'s legislative s legislative
history, however, provides no indication that it was ever intended to apply to Congress, its history, however, provides no indication that it was ever intended to apply to Congress, its
employees, or any legislative branch agency or its employees.employees, or any legislative branch agency or its employees.412
413
In instances in which the target of a congressional inquiry attempts to withhold information based In instances in which the target of a congressional inquiry attempts to withhold information based
on a general nondisclosure statute that is silent with respect to congressional disclosure, the on a general nondisclosure statute that is silent with respect to congressional disclosure, the
committee may have to take additional steps to access the information. Potential solutions include committee may have to take additional steps to access the information. Potential solutions include
negotiations with the target; accommodations in the form of accepted redactions or other means negotiations with the target; accommodations in the form of accepted redactions or other means
of providing the information; or a of providing the information; or a“"friendly subpoena,friendly subpoena,”" which may provide the targeted entity or which may provide the targeted entity or
individual with the necessary legal cover to assist the committee with its inquiry. Each of these individual with the necessary legal cover to assist the committee with its inquiry. Each of these
and many other prospective solutions can be employed at the committeeand many other prospective solutions can be employed at the committee’'s discretion.s discretion.
Classified Material
How Are Materials Classified?
The standards for classifying and declassifying information are contained in Executive Order The standards for classifying and declassifying information are contained in Executive Order
13526.13526.413414 These standards provide that the President, Vice President, agency heads, and any other These standards provide that the President, Vice President, agency heads, and any other
officials designated by the President may classify information upon a determination that its officials designated by the President may classify information upon a determination that its
unauthorized disclosure could reasonably be expected to damage national security.unauthorized disclosure could reasonably be expected to damage national security.414415 Such Such
information must be owned by, produced by, or under the control of the federal government and information must be owned by, produced by, or under the control of the federal government and
must concern one of the areas delineated by the executive order.415
409 See, e.g., F.T.C. v. Owens-Corning Fiberglass Corp., 626 F.2d 966, 970, 974 (D.C. Cir. 1980); Exxon Corp. v.
F.T.C., 589 F.2d 582, 585-89 (D.C. Cir. 1978); Ashland Oil Co., Inc. v. F.T.C., 548 F.2d 977, 979 (D.C. Cir. 1976).
410 See, e.g., 5 U.S.C. §552a(b)(9); 6 U.S.C. §673.
411 18 U.S.C. §1905.
412 See CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1144-52 (D.C. Cir. 1987) (discussing the legislative history
of the Trade Secrets Act).
413 Executive Order 13526, 75 Fed. Reg. 707 (Jan. 5, 2010).
414 Id. §1.3. The unauthorized disclosure of foreign government information is presumed to damage national security.
Id. §1.1(b).
415 Id. §1.4. The areas are as follows: military plans, weapons systems, or operations; foreign government information;
intelligence activities, intelligence sources/methods; cryptology; foreign relations or foreign activities of the United
States, including confidential sources; scientific, technological, or economic matters relating to national security;
federal programs for safeguarding nuclear materials or facilities; vulnerabilities or capabilities of national security
systems; or weapons of mass destruction. Id. In addition, when classified information that is incorporated, paraphrased,
restated, or generated in a new form, that new form must be classified at the same level as the original. Id. §§2.1-2.2.
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must concern one of the areas delineated by the executive order.416
Information is classified at one of three levels based on the amount of danger that its unauthorized Information is classified at one of three levels based on the amount of danger that its unauthorized
disclosure could reasonably be expected to cause to national security.disclosure could reasonably be expected to cause to national security.416417 Information is classified Information is classified
as:
“as1. "top secrettop secret”" if its unauthorized disclosure could reasonably be expected to if its unauthorized disclosure could reasonably be expected to
cause cause “"exceptionally grave damageexceptionally grave damage”" to national security, to national security,
“secret”
2. "secret" if its unauthorized disclosure could reasonably be expected to cause if its unauthorized disclosure could reasonably be expected to cause
“"serious damageserious damage”" to national security, and to national security, and
“confidential”
3. "confidential" if its unauthorized disclosure could reasonably be expected to if its unauthorized disclosure could reasonably be expected to
cause “damage” to national security.
Significantly, forcause "damage" to national security.418 For each level, the original classifying officer must identify or describe the specific each level, the original classifying officer must identify or describe the specific
danger potentially presented by the informationdanger potentially presented by the information’'s disclosure.s disclosure.417419 The officer who originally The officer who originally
classifies the information establishes a date for declassification based upon the expected duration classifies the information establishes a date for declassification based upon the expected duration
of the informationof the information’'s sensitivity. If the officer cannot set an earlier declassification date, then the s sensitivity. If the officer cannot set an earlier declassification date, then the
information must be marked for declassification after 10 or 25 years, depending on the sensitivity information must be marked for declassification after 10 or 25 years, depending on the sensitivity
of the information.of the information.418420 The deadline for declassification can be extended if the threat to national The deadline for declassification can be extended if the threat to national
security still exists.security still exists.419
421 Who Can Access Classified Materials?
Access to classified information is generally limited to those who:Access to classified information is generally limited to those who:
demonstrate their eligibility to the relevant agency head (for example, demonstrate their eligibility to the relevant agency head (for example,
through a security clearance);through a security clearance);
sign a nondisclosure agreement; andsign a nondisclosure agreement; and
have a need to know the information, which is satisfied upon have a need to know the information, which is satisfied upon “a
"a determination within the executive branch determination within the executive branch …... that a prospective recipient that a prospective recipient
requires access to specific classified information in order to perform or assist requires access to specific classified information in order to perform or assist
in a lawful and authorized governmental function.in a lawful and authorized governmental function.”420
"422 The information being accessed may not be removed from the controlling agencyThe information being accessed may not be removed from the controlling agency’'s premises s premises
without permission.without permission.421423 Each agency is required to establish systems for controlling the Each agency is required to establish systems for controlling the
distribution of classified information.distribution of classified information.422
424
The executive order does not contain any instructions regarding disclosures to Congress or its The executive order does not contain any instructions regarding disclosures to Congress or its
committees of jurisdiction. committees of jurisdiction.“"Members of Congress, as constitutionally elected officers, do not Members of Congress, as constitutionally elected officers, do not
receive security clearances as such, but are instead presumed to be trustworthy,receive security clearances as such, but are instead presumed to be trustworthy,”" thereby fulfilling thereby fulfilling
the first requirement to access classified materials.the first requirement to access classified materials.423425 Members of Congress still face the Members of Congress still face the “"need to know"need to
416 Id. §1.2.
417 Id. Classifying authorities are specifically prohibited from classifying information for reasons other than protecting
national security, such as to conceal violations of law or avoid embarrassment. Id. §1.7(a).
418 Id. §1.5.
419 Id. §1.5(c).
420 Id. §§4.1, 6.1(dd). The need-to-know requirement can be waived for former Presidents and Vice Presidents,
historical researchers, and former policymaking officials who were appointed by the President or Vice President. Id.
§4.4.
421 Id. §4.1.
422 Id. §4.2.
423 Access to Classified Information, 20 Op. Off. Legal Counsel 402, 406 (1996).
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know” requirement. A Member could assert that he or she fulfills this requirement based on the requirement. A Member could assert that he or she fulfills this requirement based on the
constitutional duties and responsibilities of his or her office. The executive branch may disagree constitutional duties and responsibilities of his or her office. The executive branch may disagree
with this interpretation and has previously stated that it retains the final authority to determine if a with this interpretation and has previously stated that it retains the final authority to determine if a
Member has a need to know.Member has a need to know.424426 Congressional aides, support staff, and other legislative branch Congressional aides, support staff, and other legislative branch
employees do not automatically have access to classified information and, therefore, must go employees do not automatically have access to classified information and, therefore, must go
through the necessary security clearance process prior to being permitted to review such through the necessary security clearance process prior to being permitted to review such
information.information.425
427
The executive orderThe executive order’'s silence with respect to disclosure to Congress, combined with the absence s silence with respect to disclosure to Congress, combined with the absence
of any other law restricting congressional access to classified material,of any other law restricting congressional access to classified material,426428 suggests that suggests that mere
classificationclassification itself likely cannot be used as a legal basis to withhold information from Congress. likely cannot be used as a legal basis to withhold information from Congress.
Notwithstanding classification itself, practical and political concerns with respect to controlled Notwithstanding classification itself, practical and political concerns with respect to controlled
access, secure storage, and public disclosure may provide persuasive rationales for withholding or access, secure storage, and public disclosure may provide persuasive rationales for withholding or
limiting congressional access. Committees and subcommittees have wide discretion to negotiate limiting congressional access. Committees and subcommittees have wide discretion to negotiate
with a presidential Administration regarding these issues. For example, an investigating with a presidential Administration regarding these issues. For example, an investigating
committee or subcommittee could choose to review documents at an executive branch secure committee or subcommittee could choose to review documents at an executive branch secure
facility; permit redactions of certain information; limit the ability of Members or staff to review facility; permit redactions of certain information; limit the ability of Members or staff to review
certain material; or opt to hold nonpublic meetings, briefings, and hearings where classified certain material; or opt to hold nonpublic meetings, briefings, and hearings where classified
information will be discussed. None of these measures is legally required, but all are within the information will be discussed. None of these measures is legally required, but all are within the
investigating entityinvestigating entity’'s discretion and may assist in facilitating the disclosure of materials sought s discretion and may assist in facilitating the disclosure of materials sought
during the investigation.during the investigation.
Controlled Unclassified Information
Committees conducting investigations and oversight of executive branch agencies may require Committees conducting investigations and oversight of executive branch agencies may require
access to information and documents that are access to information and documents that are“sensitive”"sensitive" but do not rise to the level of being but do not rise to the level of being
classified. This general category of classified. This general category of“"controlled unclassified informationcontrolled unclassified information”" (CUI) (CUI)427429 can present can present
access issues for congressional committees. The fact that information is CUI does not alone access issues for congressional committees. The fact that information is CUI does not alone
provide a basis for withholding it from duly authorized jurisdictional committees of Congress.provide a basis for withholding it from duly authorized jurisdictional committees of Congress.428
430 However, there may be political and policy reasons why an agencyHowever, there may be political and policy reasons why an agency’'s classification of information s classification of information
as CUI should be afforded due deference.as CUI should be afforded due deference.
CUI material can take numerous forms.CUI material can take numerous forms.429431 Some categories are statutorily authorized, while Some categories are statutorily authorized, while
others are creations of the agency that authored or is holding the requested information. All such others are creations of the agency that authored or is holding the requested information. All such
classifications fall under the oversight of the National Archives and Records Administration as
424 See id.
425 See CRS Report R43216, Security Clearance Process: Answers to Frequently Asked Questions, by Michelle D.
Christensen, at 5.
426 See 50 U.S.C. §3163 (exempting Members of Congress from requirements for accessing classified information).
427 Executive Order 13556, 75 Fed. Reg. 68675 (Nov. 4, 2010).
428 See 32 C.F.R. §2002.16(a)(7) (providing that “[a]gencies need not enter a written agreement when they share CUI
with … Congress, including any committee, subcommittee, joint committee, joint subcommittee, or office thereof”).
429 CUI is defined as
information the Government creates or possesses, or that an entity creates or possesses for or on
behalf of the Government, that a law, regulation, or Government-wide policy requires or permits an
agency to handle using safeguarding or dissemination controls. However, CUI does not include
classified information … or information a non-executive branch entity possesses and maintains in
its own systems that did not come from, or was not created or possessed by or for, an executive
branch agency or an entity acting for an agency.
Id. §2002.4(h).
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classifications fall under the oversight of the National Archives and Records Administration as executive agent for the CUI Program,executive agent for the CUI Program,430432 which maintains a registry of CUI categories. which maintains a registry of CUI categories.431433 The The
executive order does not supersede statutorily created protections.executive order does not supersede statutorily created protections.432
434
One example of a statutorily authorized CUI category is found in the statute creating the One example of a statutorily authorized CUI category is found in the statute creating the
Transportation Security Administration (TSA). The statute requires the TSA director to Transportation Security Administration (TSA). The statute requires the TSA director to“"prescribe prescribe
regulations prohibiting the disclosure of information obtained or developed in carrying out regulations prohibiting the disclosure of information obtained or developed in carrying out
security security…... if [he or she] decides that disclosing the information would—(A) be an unwarranted if [he or she] decides that disclosing the information would—(A) be an unwarranted
invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or
financial information; or (C) be detrimental to the security of transportation.financial information; or (C) be detrimental to the security of transportation.433
"435
The statute also expressly states that the general authority provided to withhold information from The statute also expressly states that the general authority provided to withhold information from
the public the public“"does not authorize information to be withheld from a committee of Congress does not authorize information to be withheld from a committee of Congress
authorized to have the information.authorized to have the information.”434"436 Pursuant to this statute, TSA promulgated regulations Pursuant to this statute, TSA promulgated regulations
defining defining sensitive security information (SSI)—defined generally as (SSI)—defined generally as“"information obtained or information obtained or
developed in the conduct of security activitiesdeveloped in the conduct of security activities”"—and restrictions on its disclosure.—and restrictions on its disclosure.435437 In addition, In addition,
the SSI regulations appear to insulate congressional committees and their staffs from any the SSI regulations appear to insulate congressional committees and their staffs from any
sanctions or penalty from the receipt and disclosure of SSI. The definition of sanctions or penalty from the receipt and disclosure of SSI. The definition of covered persons——
those subject to the SSI regulations—does not appear to include Members of Congress, those subject to the SSI regulations—does not appear to include Members of Congress,
committees, or congressional staff.committees, or congressional staff.436438 Moreover, the regulations specifically state, as directed by Moreover, the regulations specifically state, as directed by
the statute, that the statute, that“"[n]othing in this part precludes TSA or the Coast Guard from disclosing SSI to a [n]othing in this part precludes TSA or the Coast Guard from disclosing SSI to a
committee of Congress authorized to have the information.committee of Congress authorized to have the information.”437
"439
Many agencies have developed their own CUI protection regimes in accordance with federal Many agencies have developed their own CUI protection regimes in accordance with federal
regulation440regulation438 that may be cited in response to congressional requests. Agencies are encouraged to that may be cited in response to congressional requests. Agencies are encouraged to
enter into written agreements or arrangements when disseminating CUI outside the executive enter into written agreements or arrangements when disseminating CUI outside the executive
branch.branch.439441 However, agencies may provide CUI to Congress without a formal agreement. However, agencies may provide CUI to Congress without a formal agreement.440
442 Individual Member Authority to Conduct Oversight and
Investigations
Investigations Individual members of a legislative body may conduct investigatory oversight on their own Individual members of a legislative body may conduct investigatory oversight on their own
initiative. However, absent the support of the body or a committee, such an investigation will
430 Executive Order 13556 §2(c).
431 The list is available at National Archives, Controlled Unclassified Information, CUI Categories,
https://www.archives.gov/cui/registry/category-list.
432 Executive Order 13556 §6(a).
433 49 U.S.C. §114(r)(1).
434 Id. §114(r)(2).
435 49 C.F.R. §1520.5.
436 See id. §1520.7 (providing 13 specific categories of “covered persons”).
437 Id. §1520.15(c).
438 32 C.F.R. Part 2002.
439 Id. §2002.2(c). Agreement or arrangement is defined as “any vehicle that sets out specific CUI handling
requirements for contractors and other information-sharing partners when the arrangement with the other party involves
CUI [including] contracts, grants, licenses, certificates, memoranda of agreement/arrangement or understanding, and
information-sharing agreements or arrangements.”
440 Id. §2002.16(a)(7)(i).
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generally not be initiative. However, absent the support of the body or a committee, such an investigation is generally not supported by the same compulsory legal authorities that are available during supported by the same compulsory legal authorities that are available during
committee investigations, including the power to issue subpoenas.committee investigations, including the power to issue subpoenas.441
443
Senate rules provide substantially more effective means for individual minority party Members to Senate rules provide substantially more effective means for individual minority party Members to
engage in engage in“"self-helpself-help”" to support oversight objectives than afforded their House counterparts. to support oversight objectives than afforded their House counterparts.
Senate rules emphasize the rights and prerogatives of individual Senators and, therefore, minority Senate rules emphasize the rights and prerogatives of individual Senators and, therefore, minority
groups of Senators.groups of Senators.442444 The most important of these rules are those that effectively allow unlimited The most important of these rules are those that effectively allow unlimited
debate on a bill or amendment unless a supermajority votes to invoke cloture.debate on a bill or amendment unless a supermajority votes to invoke cloture.443445 Senators can use Senators can use
their right to filibuster, or their right to filibuster, orsimply the threat of filibuster, to delay or prevent the Senate from the threat of filibuster, to delay or prevent the Senate from
reaching a vote on legislative business. Other Senate rules can also directly or indirectly aid the reaching a vote on legislative business. Other Senate rules can also directly or indirectly aid the
minority in gaining investigatory rights. For example, the right of extended debate also applies in minority in gaining investigatory rights. For example, the right of extended debate also applies in
committeecommittee, and, unlike on the floor, the cloture rule may not be invoked in committee. Each and, unlike on the floor, the cloture rule may not be invoked in committee. Each
Senate committee decides for itself how it will control debate, and therefore a Member may have Senate committee decides for itself how it will control debate, and therefore a Member may have
opportunities to threaten or cause delay in committee. Also, Senate Rule XXVI prohibits the opportunities to threaten or cause delay in committee. Also, Senate Rule XXVI prohibits the
reporting of any measure or matter from a committee unless a majority of the committee is reporting of any measure or matter from a committee unless a majority of the committee is
present, another point of possible tactical leverage. Even beyond the potent power to delay, present, another point of possible tactical leverage. Even beyond the potent power to delay,
Senators can promote their goals by taking advantage of other parliamentary rights and Senators can promote their goals by taking advantage of other parliamentary rights and
opportunities that are provided by the Senateopportunities that are provided by the Senate’'s formal procedures and customary practices, such s formal procedures and customary practices, such
as are afforded by the processes dealing with floor recognition and the amending process.as are afforded by the processes dealing with floor recognition and the amending process.
5 U.S.C. § 2954: The “Rule of Seven” Statute
The Seven Member Statute: 5 U.S.C. § 2954 Another potential tool for minority or small group participation in oversight is Another potential tool for minority or small group participation in oversight is provided under 5 U.S.C. § 2954.4465 U.S.C. § 2954,
commonly known as the “rule of seven.”444 Under the statute, seven members of the House Under the statute, seven members of the House
Oversight and Oversight and Government Reform Committee or five members of the Senate Committee on Homeland Reform Committee or five members of the Senate Committee on Homeland
Security and Governmental AffairsSecurity and Governmental Affairs447 can request information from executive agencies on matters can request information from executive agencies on matters
within their committee jurisdictions, which the agencies within their committee jurisdictions, which the agencies“shall” provide.445"shall" provide.448 While the statute While the statute
confers a right of access upon this group of Members, it is not clear whether the Members—in the confers a right of access upon this group of Members, it is not clear whether the Members—in the
case of an agency refusal—can enforce their request in the courts. case of an agency refusal—can enforce their request in the courts.A recentIn 2020, the D.C. Circuit D.C. Circuit decision
has recognized that Members who invoke § 2954 have standing to enforce their rightrecognized that Members who invoke § 2954 have standing to enforce their right,446 but
whether they449 but did not resolve whether such Members also possess the necessary cause of action for a court to entertain an enforcement lawsuit.450 The Supreme Court granted certiorari to review the D.C. Circuit's decision in 2023, but while that review was pending, the lower court suit was voluntarily dismissed by the plaintiff-Members. Consequently, the Supreme Court dismissed its grant of certiorari and ordered the decision below to be vacated.451
Specialized Investigations
also possess the necessary cause of action for a court to entertain an enforcement
lawsuit remains the subject of litigation.447
441 When authorized by chamber and committee rules, an individual committee chair may exercise the subpoena power.
See House Rule XI(2)(m). Minority members are accorded some rights under the rules. For example, in the House of
Representatives, whenever a hearing is conducted on any measure or matter, the minority may, upon the written request
of a majority of the minority Members to the chair before the completion of the hearing, call witnesses selected by the
minority and presumably request documents. House Rule XI 2(j)(1); see also House Banking Committee Rule IV(4).
442 See CRS Report RL30360, Filibusters and Cloture in the Senate, by Valerie Heitshusen and Richard S. Beth.
443 Senate Rule XXII.
444 5 U.S.C. §2954 provides: “An Executive agency, on request of the Committee on [Oversight and] Government
[Reform] of the House of Representatives, or of any seven members thereof, or on request of the Committee on
Government Operations of the Senate, or any five members thereof, shall submit any information requested of it
relating to any matter within the jurisdiction of the committee.”
445 The text of the statute refers to the House Committee on Government Operations, a predecessor to the House
Committee on Oversight and Reform, and the Senate Committee on Governmental Affairs, a predecessor to the Senate
Committee on Homeland Security and Governmental Affairs.
446 Maloney v. Murphy, 984 F.3d 50, 54 (D.C. Cir. 2020). A federal district court in California previously came to an
opposing conclusion on the standing question. See Waxman v. Thompson, Case No. CV 04-3467 MMM, 2006 U.S.
Dist. LEXIS 102688, at *29 (C.D. Cal. July 24, 2006).
447 Maloney, 984 F.3d at 70 (“This decision resolves only the standing question decided by the district court. To the
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Specialized Investigations
Oversight at times occurs through specialized, temporary investigations of a specific event or Oversight at times occurs through specialized, temporary investigations of a specific event or
development. These can be dramatic, high-profile endeavors focusing on scandals, alleged abuses development. These can be dramatic, high-profile endeavors focusing on scandals, alleged abuses
of authority, suspected illegal conduct, or other unethical behavior. The stakes are high, possibly of authority, suspected illegal conduct, or other unethical behavior. The stakes are high, possibly
even leading to the end of individual careers of high-ranking executive officials. Congressional even leading to the end of individual careers of high-ranking executive officials. Congressional
investigations can induce resignations, firings, and impeachment proceedings and question major investigations can induce resignations, firings, and impeachment proceedings and question major
policy actions of the President, as occurred in the Senate Watergate Committee investigation into policy actions of the President, as occurred in the Senate Watergate Committee investigation into
the Nixon Administration in the early 1970s, the Church and Pike select committeesthe Nixon Administration in the early 1970s, the Church and Pike select committees’' inquiries in inquiries in
the mid-1970s into intelligence agency abusesthe mid-1970s into intelligence agency abuses, the 1981 and 1982 House and Senate select
committee inquiries into the ABSCAM scandal, the 1987 Iran-Contra investigation during the , the 1987 Iran-Contra investigation during the
Reagan Administration, Reagan Administration,the multiple investigations of scandals and alleged misconduct during the multiple investigations of scandals and alleged misconduct during the
Clinton Administration, the joint intelligence committee investigation into the September 11 Clinton Administration, the joint intelligence committee investigation into the September 11
attacks, the Hurricane Katrina probe in 2005 during the George W. Bush Administration, the attacks, the Hurricane Katrina probe in 2005 during the George W. Bush Administration, the
Benghazi panel established in 2014 and again in 2015 during the Obama Administration, Benghazi panel established in 2014 and again in 2015 during the Obama Administration,
investigations into Russian interference in the 2016 presidential election during the investigations into Russian interference in the 2016 presidential election during the first Trump Trump
Administration, Administration,and athe select committee inquiry by the House into the attack on the U.S. Capitol select committee inquiry by the House into the attack on the U.S. Capitol
Building on January 6, 2021Building on January 6, 2021, and the task force that investigated the attempted assassination of Donald Trump in July 2024. On these investigations and others, interest in Congress, the . On these investigations and others, interest in Congress, the
executive, and the public is frequently intense and impassioned.executive, and the public is frequently intense and impassioned.
Prominent Select Investigative Committees
Senate Watergate Committee (1973-74), S., S. Res. 60Res. 60, 93rd Cong. (1973).
", 93rd Congress, 1st session.
“To establish a select committee of the Senate to conduct an investigation and study of the extent, if any, to which To establish a select committee of the Senate to conduct an investigation and study of the extent, if any, to which
il egalillegal, improper, or unethical activities were engaged in by any persons, acting individually or in combination with , improper, or unethical activities were engaged in by any persons, acting individually or in combination with
others, in the presidential election of 1972, or any campaign, canvass, or other activity related to it.others, in the presidential election of 1972, or any campaign, canvass, or other activity related to it.”
" House Select Committee on the Iran-Contra Affair (1987), H., H.R. Res. 12Res. 12, 100th Cong. (1987).
", 100th Congress, 1st session.
“The select committee is authorized and directed to conduct a The select committee is authorized and directed to conduct a ful full and complete investigation and study, and to and complete investigation and study, and to
make such findings and recommendations to the House as the select committee deems appropriate, regarding the make such findings and recommendations to the House as the select committee deems appropriate, regarding the
sale or transfer of arms, technology, or intelligence to Iran or Iraq; the diversion of funds realized in connection sale or transfer of arms, technology, or intelligence to Iran or Iraq; the diversion of funds realized in connection
with such sales and otherwise, to the anti-government forces in Nicaragua; the violation of any law, agreement, with such sales and otherwise, to the anti-government forces in Nicaragua; the violation of any law, agreement,
promise, or understanding regarding the reporting to and informing of Congress; operational activities and the promise, or understanding regarding the reporting to and informing of Congress; operational activities and the
conduct of foreign and national security policy by the staff of the National Security Council; authorization and conduct of foreign and national security policy by the staff of the National Security Council; authorization and
supervision or lack thereof of such matters by the President and other White House personnel; the role of supervision or lack thereof of such matters by the President and other White House personnel; the role of
individuals and entities outside the government; other inquiries regarding such matters, by the Attorney General, individuals and entities outside the government; other inquiries regarding such matters, by the Attorney General,
White House, White House,intel igenceintelligence community, and Departments of Defense, Justice, and State; and the impact of such community, and Departments of Defense, Justice, and State; and the impact of such
matters on public and international confidence in the United States Government.matters on public and international confidence in the United States Government.”
"
Although the circumstances that give rise to one or another committee investigation can vary Although the circumstances that give rise to one or another committee investigation can vary
significantly, the investigations themselves tend to share some common attributes, including these significantly, the investigations themselves tend to share some common attributes, including these
five:five:
1. 1. Investigative hearings may be Investigative hearings may be televised or webcasttelevised or webcast and often result in and often result in extensive
news media coverage.
2. Such.
2. These investigations may be undertaken investigations may be undertaken by differentthrough a variety of organizational arrangements.
. These include These include temporary select committees,the standing committees and their standing committees and their
subcommitteessubcommittees, as well as temporary select committees, specially created subcommittees, , specially created subcommittees,orand specially commissioned task specially commissioned task
forces within existing standing committees.
extent the GSA’s argument or the district court’s reasoning implicate the existence of a cause of action, the appropriate
exercise of equitable discretion, or the merits of the Requesters’ claims, those issues remain to be resolved by the
district court in the first instance.”).
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3. Speciallyforces within existing standing committees.
3. A specially created investigative committees usually created investigative committees usually havehas a a short life span (e.g., six (e.g., six
months, one year, or at the longest until the end of a Congress, at which point the months, one year, or at the longest until the end of a Congress, at which point the
panel would have to be reauthorized for the inquiry to continue).panel would have to be reauthorized for the inquiry to continue).
4.
4. The investigative panel often has to The investigative panel often has to employ additional and special staff—
—including investigators, attorneys, auditors, and researchers—because of the including investigators, attorneys, auditors, and researchers—because of the
added workload and need for specialized expertise in conducting such added workload and need for specialized expertise in conducting such
investigations and in the subject matter involved. Such staff can be hired under investigations and in the subject matter involved. Such staff can be hired under
contract from the private sector, transferred from existing congressional offices contract from the private sector, transferred from existing congressional offices
or committees, transferred from the congressional support agencies, or loaned or committees, transferred from the congressional support agencies, or loaned
(“detailed”("detailed") by executive agencies, including the FBI. The staff would require ) by executive agencies, including the FBI. The staff would require
appropriate security clearances if the inquiry looked into matters of national appropriate security clearances if the inquiry looked into matters of national
security.security.
5.
5. Such special panels have often been vested with investigative authorities not Such special panels have often been vested with investigative authorities not
ordinarily available to standing committees. Staff deposition authority is the most ordinarily available to standing committees. Staff deposition authority is the most
commonly provided authority, but given the particular circumstances, special commonly provided authority, but given the particular circumstances, special
panels have also been vested with the authority to obtain tax information, seek panels have also been vested with the authority to obtain tax information, seek
international assistance in information-gathering efforts abroad, and participate in international assistance in information-gathering efforts abroad, and participate in
judicial proceedings related to the investigation (for instance, to enforce a judicial proceedings related to the investigation (for instance, to enforce a
committee-issued subpoena). The specific authorities granted to some of the most committee-issued subpoena). The specific authorities granted to some of the most
prominent investigations undertaken in recent decades are displayed prominent investigations undertaken in recent decades are displayedinin Table 1.
Table 1. Special Investigative Authorities Explicitly Provided to Selected
Investigating Committees
International
Tax
Authority to
Staff
Information-
Information
Participate in
Authorizing
Deposition
Gathering
Access
Judicial
Investigation
Resolution(s)
Authority
Authority
Authority
Proceedings
Senate
S.Res. 60, 93rd Cong.
Yes
Yes
No
Yes
Watergate
(1973)
Investigation
S.Res. 194
International Information-Gathering Authority
Tax Information Access Authority
Authority to Participate in Judicial Proceedings
S. Res. 60, 93rd Cong. , 93rd Cong.
(1973)(1973)
S.S.Res. Res. 327194, 93rd Cong. , 93rd Cong.
(1974)
President
H.Res. 803(1973)
President Nixon Impeachment
H.R. Res. 803, 93rd, 93rd Cong.
Yes
Yes
No
No
Nixon
(1974)
Impeachment
Church
S.Res. 21, 94th Cong.
Yes
Yes
No
No
Committee
(1975)
S.Res. 377 Cong. (1974)
Church Committee
, 94th Cong.
(1976)
House Select
H.Res. 1540, 94th Cong.
Yes
Yes
No
Yes
Committee
(1976)
on
H.Res. 222, 95th, 94th Cong. (1976)
House Select Committee onAssassinations
Cong.
Assassinations (1977)
H.Res. 433, 95th Cong. , 95th Cong.
(1977)(1977)
Koreagate
H.Res. 252, 95th Cong.
No
Yes
No
Yes
(1977)
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International
Tax
Authority to
Staff
Information-
Information
Participate in
Authorizing
Deposition
Gathering
Access
Judicial
Investigation
Resolution(s)
Authority
Authority
Authority
Proceedings
Billy Carter
126 Cong. Rec. 19544-
Yes
No
Yes
No
Investigation
126 Cong. Rec. 19544 –46 (1980) (unanimous 46 (1980) (unanimous
consent agreement); consent agreement);
S.S. Res. 495, 96th Cong. Res. 495, 96th Cong.
(1980)(1980)
S.S.Res. 496, 96th Cong. Res. 496, 96th Cong.
(1980)
ABSCAM
H.Res. 67, 97th Cong.
No
Yes
No
Yes
(House)
(1981)
ABSCAM
S.Res. 350, 97th Cong.
Yes
No
No
No
(Senate)
(1982)
S.Res. 517(1980)
ABSCAM (House)
ABSCAM (Senate)
S. Res. 350, 97th Cong. , 97th Cong.
(1982)(1982)
Iran-Contra
H.Res. 12, 100th
Cong.
Yes
Yes
Yes
Yes
Affair (House) (1987)
Iran-Contra
S.Res. 23, 100th Cong.
Yes
Yes
No
Yes
Affair
(1987)
(Senate)
S.Res. 170, 100th Cong. Res. 170, 100th Cong.
(1987)
Judge
H.(1987)
H.R. Res. 320Res. 320, 100th Cong. (1987)
H.R. Res. 562, 100th Cong.
Yes
No
No
No
Hastings
(1987)
Impeachment
Judge Nixon
H.Res. 562, 100th Cong.
Yes
No
No
No
Impeachment (1988)
October
H.Res. 258, 100th Cong. (1988)
October Surprise
Senate Whitewater
S. , 102nd
Yes
Yes
No
Yes
Surprise
Cong. (1992)
Senate
S.Res. 229Res. 229, 103rd Cong. (1994)
S. , 103rd Cong.
Yes
Yes
Yes
Yes
Whitewater
(1994)
S.Res. 120, 104th Cong. Res. 120, 104th Cong.
(1995)
White House
H.Res. 369(1995)
White House Travel Office
House Campaign Finance
H.R. Res. 167, 104th Cong.
Yes
No
No
No
Travel Office
(1996)
House
H.Res. 167, 105th Cong.
Yes
Yes
No
No
Campaign
(1997)
Finance
Senate
S., 105th Cong. (1997)
Senate Campaign Finance
S. Res. 39, 105th Cong. Res. 39, 105th Cong.
Yes
No
No
No
Campaign
(1997)
Finance
National
H.Res. 463, 105th Cong.
Yes
Yes
Yes
Yes
Security and
(1998)
(1997)
National Security and Commercial
Concerns
with China
Teamsters
H.Res. 507
Teamsters Election Investigation
H.R. , 105th Cong.
Yes
No
No
No
Election
(1998)
Investigation
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International
Tax
Authority to
Staff
Information-
Information
Participate in
Authorizing
Deposition
Gathering
Access
Judicial
Investigation
Resolution(s)
Authority
Authority
Authority
Proceedings
2012
H.Res. 567, 113th Cong.
Yes
No
No
No
Terrorist
(2014)
Attack in
H.Res. 5, 114th Cong.
Benghazi
(2015)
President
H.Res. 660, 116th Cong.
Yes
No
No
No
Trump
(2019)
Impeachment
Attack on the
H.Res. 503, 117th Cong.
Yes
No
No
No
U.S. Capitol
(2021)
Source: Congressional Research Service.
Note:Res. 660, 116th Cong. (2019)
committees can be found in committees can be found inSenate CommitteeS. Comm. on Rules on Rules and Administration, & Admin., Authority and Rules of Senate Special
Investigatory Committees and Other Senate Entities, 1973-97, S., 1973-97, S. Doc. 105-16 (1st Sess.1998); and Staff of Subcomm. on the Legis. Process, H. Comm. on Rules, 98th Cong.,Doc. 105-16, 105th Cong., 1st sess. (1998); and U.S.
Congress, House Committee on Rules, Subcommittee on the Legislative Process, Guidelines for the Establishment
of Select Committees, 98th Cong., 1st sess. (Washington, DC: GPO, 1983).
Selected Oversight Techniques
(Subcomm. Print 1983). Select Oversight Tools and Techniques Some oversight techniques—such as conducting hearings with agency officials, receiving reports Some oversight techniques—such as conducting hearings with agency officials, receiving reports
on agency activities and performance, and scrutinizing budget requests—are relatively on agency activities and performance, and scrutinizing budget requests—are relatively
straightforward. There are several techniques for which explanation or elaboration may prove straightforward. There are several techniques for which explanation or elaboration may prove
helpful for a better understanding of their utility.helpful for a better understanding of their utility.
Identifying Relevant Committee Jurisdiction
A basic step in conducting oversight involves identifying the committee(s) with jurisdiction over
the policy matter or programs of interest. The committee jurisdictional statements in House Rule
X and Senate Rule XXV specify the subjects that fall within each committee’s jurisdiction. In
general, the rules do not address specific departments, agencies, programs, or laws but are stated
in broad subject terms. Therefore, multiple committees may exercise some jurisdiction—
especially in regard to oversight—over the same departments and agencies or over different
elements of the same agency activities. While the House and Senate Parliamentarians are the sole
definitive arbiters of committee jurisdiction, CRS can also assist with the identification of the
relevant committee(s) of jurisdiction for proposed oversight activities.448
Orientation and Periodic Review Hearings with Agencies
Oversight hearings (or even “pre-hearings”) may be held
Orientation and Periodic Review Hearings with Agencies
Committees may hold oversight hearings (or even "pre-hearings") for the purposes of briefing Members for the purposes of briefing Members
and staff on the organization, operations, and programs of an agency and determining how an and staff on the organization, operations, and programs of an agency and determining how an
agency intends to implement any newly enacted legislation. Hearings can also be used as a way to agency intends to implement any newly enacted legislation. Hearings can also be used as a way to
obtain information on the administration, effectiveness, and economy of agency operations and obtain information on the administration, effectiveness, and economy of agency operations and
programs.
448 On House rules governing committee jurisdiction and referral, see CRS Report R46251, Committee Jurisdiction and
Referral in the House, by Mark J. Oleszek. Jurisdiction and referral in the Senate is the subject of CRS Report R46815,
Committee Jurisdiction and Referral in the Senate, by Mark J. Oleszek.
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programs.
Agency officials can be noticeably influenced by the knowledge and expectation that they will be Agency officials can be noticeably influenced by the knowledge and expectation that they will be
called before called beforea congressional congressional committeecommittees regularly to account for the activities of their agencies. regularly to account for the activities of their agencies.
Such hearings benefit the committee by, for example:Such hearings benefit the committee by, for example:
helping committee members keep up to date on important administrative helping committee members keep up to date on important administrative
developments;developments;
serving as a forum for exchanging and communicating views on pertinent serving as a forum for exchanging and communicating views on pertinent
problems and other relevant matters;problems and other relevant matters;
providing background information that could assist providing background information that could assist membersMembers in making in making
sound legislative and fiscal judgments;sound legislative and fiscal judgments;
identifying program areas within each committeeidentifying program areas within each committee’'s jurisdiction that may be s jurisdiction that may be
vulnerable to waste, fraud, abuse, or mismanagement; andvulnerable to waste, fraud, abuse, or mismanagement; and
determining whether new laws are needed or whether changes in the determining whether new laws are needed or whether changes in the
administration of existing laws will be sufficient to resolve problems.administration of existing laws will be sufficient to resolve problems.
The ability of committee members during oversight hearings to focus on meaningful issues and The ability of committee members during oversight hearings to focus on meaningful issues and
ask penetrating questions ask penetrating questionswillis typically typically be enhanced if staff have accumulated, organized, and enhanced if staff have accumulated, organized, and
evaluated relevant data, information, and analyses about administrative performance.evaluated relevant data, information, and analyses about administrative performance.
A prime objective of the A prime objective of the “"continuous watchfulnesscontinuous watchfulness”" mandate (Section 136) of the Legislative mandate (Section 136) of the Legislative
Reorganization Act of 1946 is to encourage committees to take an active and ongoing role in Reorganization Act of 1946 is to encourage committees to take an active and ongoing role in
administrative review and not wait for public revelations of agency and program inadequacies administrative review and not wait for public revelations of agency and program inadequacies
before conducting oversight. As Section 136 states in part: before conducting oversight. As Section 136 states in part:“"each standing committee of the each standing committee of the
Senate and House of Representatives shall exercise continuous watchfulness of the execution by Senate and House of Representatives shall exercise continuous watchfulness of the execution by
the administrative agencies concerned of any laws, the subject matter of which is within the the administrative agencies concerned of any laws, the subject matter of which is within the
jurisdiction of such committee.jurisdiction of such committee.”
"452
Committee personnel may be assigned to maintain active liaison with appropriate agencies and Committee personnel may be assigned to maintain active liaison with appropriate agencies and
record their pertinent findings routinely. Information compiled in this fashion record their pertinent findings routinely. Information compiled in this fashionwill typically be
is useful for both routine oversight hearings and oversight hearings that may be called unexpectedly, useful for both routine oversight hearings and oversight hearings that may be called unexpectedly,
perhaps following a public outcry on a particular issue in which the opportunity to conduct an perhaps following a public outcry on a particular issue in which the opportunity to conduct an
extensive background study is limited.extensive background study is limited.
It can be important for a committee to direct specific questions
When a committee wants detailed or technical information on agency programs or operations, it may be beneficial for the committee to provide specific questions or topics of interest to agency witnesses in advance of to agency witnesses in advance of
a hearing so that witnesses will be on notice regarding the kinds of questions the committee wants a hearing so that witnesses will be on notice regarding the kinds of questions the committee wants
answered. This allows witnesses to be more responsive to the committeeanswered. This allows witnesses to be more responsive to the committee’'s questions and may s questions and may
limit their ability to provide limit their ability to provideramblingvague, non-responsive, or evasive or evasive statements.
answers. Casework
Casework is a congressional activity that typically occurs in MembersCasework is a congressional activity that typically occurs in Members’' personal offices and personal offices and
includes the response or services provided to constituents who request assistance on a wide includes the response or services provided to constituents who request assistance on a wide
variety of matters. These could include problems with various federal agencies and departments variety of matters. These could include problems with various federal agencies and departments
that could signal a need for further oversight. Casework inquiries can be simple and include that could signal a need for further oversight. Casework inquiries can be simple and include
requests for assistance in applying for Social Security, veteransrequests for assistance in applying for Social Security, veterans’', educational, or other benefits. , educational, or other benefits.
More complex inquiries might involve tracking misdirected benefits payments or efforts to More complex inquiries might involve tracking misdirected benefits payments or efforts to
obtain, or seek relief from, a federal administrative decision.obtain, or seek relief from, a federal administrative decision.449
449 CRS provides a variety of resources to assist congressional offices with casework. These include CRS Report
RL33209, Casework in a Congressional Office: Background, Rules, Laws, and Resources, by R. Eric Petersen and
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453
Casework inquiries and the efforts of congressional constituent services staff to respond can Casework inquiries and the efforts of congressional constituent services staff to respond can
provide important insights into executive agency activities. Together, constituent inquiries and provide important insights into executive agency activities. Together, constituent inquiries and
agency responses may afford Members an early warning about whether an agency or program is agency responses may afford Members an early warning about whether an agency or program is
functioning as Congress intended and which programs or policies might warrant additional functioning as Congress intended and which programs or policies might warrant additional
institutional oversight or further legislative consideration.institutional oversight or further legislative consideration.450
454 Performance Audits by Inspectors General and GAO
Performance auditing of executive departments Performance auditing of executive departmentsis among the most frequently undertaken
techniques ofand programs can also inform legislative oversight. A performance audit is intended to help Congress (and other legislative oversight. A performance audit is intended to help Congress (and other
oversight entities) hold executive officers accountable for their use of public funds with a primary oversight entities) hold executive officers accountable for their use of public funds with a primary
aim to facilitate improvement of various government programs and operations.aim to facilitate improvement of various government programs and operations.451455 According to According to
GAO, performance audits aim to accomplish four key objectives:GAO, performance audits aim to accomplish four key objectives:
1. 1. Program effectiveness and results. DetermineDetermining whether a program or whether a program or
activity is achieving its legislative, regulatory, or organizational goals and activity is achieving its legislative, regulatory, or organizational goals and
objectives, as well as whether resources are being used efficiently, objectives, as well as whether resources are being used efficiently,
effectively, and economically to achieve program results.effectively, and economically to achieve program results.
2.
2. Internal control. DetermineDetermining whether an internal control system for a whether an internal control system for a
program or activity provides reasonable assurance of achieving efficient and program or activity provides reasonable assurance of achieving efficient and
effective operations, reliability of reporting, and compliance with applicable effective operations, reliability of reporting, and compliance with applicable
laws and regulations.laws and regulations.
3.
3. Compliance. DetermineDetermining whether a program or activity complies with criteria whether a program or activity complies with criteria
established by laws, regulations, contracts, grant agreements, or other established by laws, regulations, contracts, grant agreements, or other
requirements.requirements.
4.
4. Prospective analysis. IdentifyIdentifying projected trends and impact of a program or projected trends and impact of a program or
activity and possible policy alternatives to address them.activity and possible policy alternatives to address them.452
456Performance audits may be undertaken by independent auditors (e.g., GAO or inspectors general) Performance audits may be undertaken by independent auditors (e.g., GAO or inspectors general)
or internal auditors (e.g., agency audit teams or agency-hired consultants). Internal auditors often or internal auditors (e.g., agency audit teams or agency-hired consultants). Internal auditors often
work under the direction of their affiliated agencies, and their reports may be designed to meet work under the direction of their affiliated agencies, and their reports may be designed to meet
Sarah J. Eckman; CRS In Focus IF10503, Constituent Services: Overview and Resources, by Sarah J. Eckman; and
“Casework and Other Constituent Services,” available to congressional offices at https://www.crs.gov/resources/
casework.
450 Larry P. Ortiz et al., “Legislative Casework: When Policy and Practice Intersect,” Journal of Sociology and Social
Welfare, vol. 31 (June 2004), pp. 49-52; Representative Lee H. Hamilton, “Casework,” Congressional Record, vol.
142, (July 24, 1996), pp. 19015-19016; and John R. Johannes, “Casework as a Technique of U.S. Congressional
Oversight of the Executive,” Legislative Studies Quarterly, vol. 4 (August 1979), pp. 325-351.
451 GAO’s Government Auditing Standards—also known as the Yellow Book—identifies three types of engagements
that audit agencies may conduct: (1) financial audits, (2) attestation engagements and reviews of financial statements,
and (3) performance audits. See GAO, Government Auditing Standards, 2018 Revision Technical Update April 2021,
GAO-21-368G, pp. 7-14, https://www.gao.gov/products/gao-21-368g.
452 GAO issues government auditing standards—commonly referred to as generally accepted government auditing
standards—as part of the Yellow Book. The Yellow Book includes performance audit standards and objectives.
According to GAO, the four listed categories of performance audit objectives are not mutually exclusive and can be
pursued simultaneously within a single audit engagement. For more information on performance audit objectives and
standards, see GAO, Government Auditing Standards, 2018 Revision Technical Update April 2021, pp. 10-14 and 154-
193.
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the needs of executive officials. Regardless, internal audit reports might be useful in conducting
legislative oversight.453
the needs of executive officials. Regardless, internal audit reports might be useful in conducting legislative oversight, and internal auditors may have more experience with and knowledge of agency operations.457
GAO and other audit entities may consider several questions when assessing government GAO and other audit entities may consider several questions when assessing government
programs and operations, such as the following:programs and operations, such as the following:
How successful is the program in accomplishing the intended resultsHow successful is the program in accomplishing the intended results? Could Could
program objectives be achieved at less cost?program objectives be achieved at less cost?
Has agency management clearly defined and promulgated the objectives and Has agency management clearly defined and promulgated the objectives and
goals of the program or activity?goals of the program or activity?
Have performance standards been developedHave performance standards been developed?
Are program objectives sufficiently clear to permit agency management to Are program objectives sufficiently clear to permit agency management to
accomplish effectively the desired program results? Are the objectives of the accomplish effectively the desired program results? Are the objectives of the
component parts of the program consistent with overall program objectives?component parts of the program consistent with overall program objectives?
Are program costs reasonably commensurate with the benefits achieved?Are program costs reasonably commensurate with the benefits achieved?
Have alternative programs or approaches been examined, or should they be Have alternative programs or approaches been examined, or should they be
examined to determine whether objectives can be achieved more examined to determine whether objectives can be achieved more
economically?economically?
Were all studies, such as cost-benefit studies, appropriate for analyzing costs Were all studies, such as cost-benefit studies, appropriate for analyzing costs
and benefits of alternative approaches?and benefits of alternative approaches?
Is the program producing benefits or detriments that were not contemplated Is the program producing benefits or detriments that were not contemplated
by Congress when it authorized the program?by Congress when it authorized the program?
Is the information furnished to Congress by the agency adequate and Is the information furnished to Congress by the agency adequate and
sufficiently accurate to permit Congress to monitor program achievements sufficiently accurate to permit Congress to monitor program achievements
effectively?effectively?
Does top management have the essential and reliable information necessary Does top management have the essential and reliable information necessary
for exercising supervision and control and for ascertaining directions or for exercising supervision and control and for ascertaining directions or
trends?trends?
Does management have internal review or audit facilities adequate for Does management have internal review or audit facilities adequate for
monitoring program operations, identifying program and management monitoring program operations, identifying program and management
problems and weaknesses, and problems and weaknesses, andinsuringensuring fiscal integrity? fiscal integrity?
Monitoring the Federal Register
The The Federal Register, available at https://www.federalregister.gov/, is published Monday through , available at https://www.federalregister.gov/, is published Monday through
Friday (except official holidays) by the Office of the Federal Register in the National Archives Friday (except official holidays) by the Office of the Federal Register in the National Archives
and Records Administration. It provides a uniform system for making available to the public and Records Administration. It provides a uniform system for making available to the public
regulations and legal notices issued by federal agencies and the President. These include regulations and legal notices issued by federal agencies and the President. These include
presidential proclamations and executive orders, federal agency documents having general presidential proclamations and executive orders, federal agency documents having general
applicability and legal effect, documents required to be published by acts of Congress, and other applicability and legal effect, documents required to be published by acts of Congress, and other
federal agency documents of public interest. Final regulations are codified by subject in the federal agency documents of public interest. Final regulations are codified by subject in the Code
of Federal Regulations..
Documents are typically on file for public inspection in the Office of the Federal Register for at Documents are typically on file for public inspection in the Office of the Federal Register for at
least one day before they are published unless the issuing agency requests earlier filing. The list least one day before they are published unless the issuing agency requests earlier filing. The list
of documents on file for public inspection can be accessed at https://www.federalregister.gov/of documents on file for public inspection can be accessed at https://www.federalregister.gov/
453 Agencies sometimes consider internal audit reports as predecisional and thus not suitable for release to Congress or
the public.
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public-inspection. Regular scrutiny of the public-inspection. Regular scrutiny of the Federal Register by committees and staff may help by committees and staff may help
them to identify proposed them to identify proposedrules andand final regulations in their areas of jurisdiction regulations in their areas of jurisdiction that merit
congressional review as to need and likely effect.
. Monitoring the Unified Agenda
The Unified Agenda of Federal Regulatory and Deregulatory Actions is a government-wide The Unified Agenda of Federal Regulatory and Deregulatory Actions is a government-wide
publication of rulemaking actions that agencies expect to take in the coming six to 12 months. publication of rulemaking actions that agencies expect to take in the coming six to 12 months.
The Unified Agenda, which is generally published twice each year, lists upcoming regulatory The Unified Agenda, which is generally published twice each year, lists upcoming regulatory
actions (i.e., new proposed and final regulations) and deregulatory actions (i.e., reductions in or actions (i.e., new proposed and final regulations) and deregulatory actions (i.e., reductions in or
elimination of current regulations). The Unified Agenda provides Congress transparency into elimination of current regulations). The Unified Agenda provides Congress transparency into
federal agenciesfederal agencies’' upcoming rulemaking activities—which can be particularly useful given that upcoming rulemaking activities—which can be particularly useful given that
most regulatory activities are not made public until they are published in the most regulatory activities are not made public until they are published in the Federal Register. .
The Unified Agenda is available on the website The Unified Agenda is available on the websitewww.Reginfo.govReginfo.gov,454,458 which is published by the which is published by the
General Services AdministrationGeneral Services Administration’'s Regulatory Information Service Center. Separate from the s Regulatory Information Service Center. Separate from the
Unified Agenda, Reginfo.gov also has information about Office of Management and Budget Unified Agenda, Reginfo.gov also has information about Office of Management and Budget
(OMB) review of regulations under Executive Order 12866 and information collection requests (OMB) review of regulations under Executive Order 12866 and information collection requests
under the Paperwork Reduction Act.under the Paperwork Reduction Act.455
459 Special Studies and Investigations by Staff, Support Agencies, and
Others
Staff investigations. Others
Staff Investigations
The staffs of committees and individual members play a vital role in the The staffs of committees and individual members play a vital role in the
legislative process. Committee staffs, through field investigations or on-site visits, for example, legislative process. Committee staffs, through field investigations or on-site visits, for example,
can help a committee develop its own independent evaluation of the effectiveness of laws.can help a committee develop its own independent evaluation of the effectiveness of laws.
Supportagencies. Agencies
The legislative support agencies can directly or indirectly assist committees The legislative support agencies can directly or indirectly assist committees
and membersand Members in conducting investigations and reviewing agency performance. in conducting investigations and reviewing agency performance.456460 GAO is the GAO is the
agency most involved in investigations, audits, and program evaluations. It has a large, agency most involved in investigations, audits, and program evaluations. It has a large,
professional investigative staff and produces numerous reports professional investigative staff and produces numerous reports that are useful in oversight.useful in oversight.
Outsidecontractors, consultants, and detailees. Contractors, Consultants, and Detailees
The Legislative Reorganization Act of 1970 The Legislative Reorganization Act of 1970
authorized House and Senate committees to contract with individual consultants or organizations authorized House and Senate committees to contract with individual consultants or organizations
to assist them in their work. Committees may also use federal employees detailed from executive to assist them in their work. Committees may also use federal employees detailed from executive
or legislative branch agencies.or legislative branch agencies.457461 The use of contractors, consultants, and detailees is subject to The use of contractors, consultants, and detailees is subject to
limitations and approvals established in House and Senate rules, guidelines established by the limitations and approvals established in House and Senate rules, guidelines established by the
Committee on House Administration or the Senate Committee on Rules and Administration, and Committee on House Administration or the Senate Committee on Rules and Administration, and
rules of individual committees.rules of individual committees.458
462 Investigativecommissions. Commissions
Congress has periodically established independent commissions to Congress has periodically established independent commissions to
conduct studies or to investigate conduct studies or to investigatean event, activityevents, activities, or government , or government functionfunctions. Commissions are . Commissions are
454 Specifically at https://www.reginfo.gov/public/do/eAgendaMain.
455 For more information, see CRS In Focus IF12118, The Unified Agenda of Federal Regulatory and Deregulatory
Actions: An Overview, by Maeve P. Carey
456 See “Oversight Information Sources and Consultant Services” below (discussing the capabilities of CRS, GAO, and
CBO).
457 2 U.S.C. §4301(i).
458 Ibid.
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typically made up of outside experts and tasked with issuing reports to Congress (or to Congress typically made up of outside experts and tasked with issuing reports to Congress (or to Congress
and the President) that contain the and the President) that contain thecommission’scommissions' findings and recommendations. findings and recommendations.459
463 The 9/11 Commission
Congress established the National Commission on Terrorists Attacks Upon the United States (commonly known Congress established the National Commission on Terrorists Attacks Upon the United States (commonly known
as the as the "9/11 Commission9/11 Commission") in November 2002 (P.L. 107-306; 6 U.S.C. §101 note) to ) in November 2002 (P.L. 107-306; 6 U.S.C. §101 note) to“"examine and report upon the examine and report upon the
facts and causes relating to the terrorist attacks of September 11, 2001.facts and causes relating to the terrorist attacks of September 11, 2001.”" The commission, which operated until The commission, which operated until
August 2004, conducted an extensive and widely watched investigation, including a dozen public hearings, that August 2004, conducted an extensive and widely watched investigation, including a dozen public hearings, that
culminated in the publication of culminated in the publication of“The 9/11 Commission ReportThe 9/11 Commission Report..” The work of the commission helped bring to The work of the commission helped bring to
light a variety of information about how the attack was planned and perpetrated, identified factors that kept the light a variety of information about how the attack was planned and perpetrated, identified factors that kept the
government from stopping the attack, and made recommendations intended to prevent future successful attacks.government from stopping the attack, and made recommendations intended to prevent future successful attacks.
In addition to providing what many consider to be a definitive report on the attacks, the 9/11 Commission also In addition to providing what many consider to be a definitive report on the attacks, the 9/11 Commission also
made recommendations that became the basis for the Implementing Recommendations of the 9/11 Commission made recommendations that became the basis for the Implementing Recommendations of the 9/11 Commission
Act of 2007 (P.L. 110-53Act of 2007 (P.L. 110-53).).
Sources: The Government Publishing Office maintains an archived version of the 9/11 CommissionThe Government Publishing Office maintains an archived version of the 9/11 Commission’'s websites website,
including the reports, hearing materials, and other informationincluding the reports, hearing materials, and other information, at https://www.9-11commission.gov/. at https://www.9-11commission.gov/.
Communicating with the Media
Public awareness of a problem can contribute to oversight. Public and media attention to an issue Public awareness of a problem can contribute to oversight. Public and media attention to an issue
may be considered a separate form of oversight or a complement to other oversight techniques.may be considered a separate form of oversight or a complement to other oversight techniques.
Official resources are available to assist Members in interacting with the media and scheduling Official resources are available to assist Members in interacting with the media and scheduling
press conferences and with the broadcasting of official proceedings. Additionally, nearly all press conferences and with the broadcasting of official proceedings. Additionally, nearly all
Members maintain one or more social media accounts and use their institutional websites to help Members maintain one or more social media accounts and use their institutional websites to help
communicate with constituents and publicize issues.communicate with constituents and publicize issues.460
464 Press Gallery Offices
The staff of the House and Senate press galleries provide services for journalists and Members of The staff of the House and Senate press galleries provide services for journalists and Members of
Congress. The press galleries can assist Members or staff with the distribution of press releases, Congress. The press galleries can assist Members or staff with the distribution of press releases,
facilitate Member communications with journalists, and help arrange location reservations or facilitate Member communications with journalists, and help arrange location reservations or
other logistics for press conferences or interviews.other logistics for press conferences or interviews.461
465
Within each chamber, separate gallery offices exist for the daily press, periodical press, and Within each chamber, separate gallery offices exist for the daily press, periodical press, and
radio/TV press. A single office, serving both chambers, exists for the press photographersradio/TV press. A single office, serving both chambers, exists for the press photographers’' gallery. gallery.
The websites for each gallery are provided The websites for each gallery are providedinin Table 2.
Table 2. Press Gallery Names and Websites
Gallery Name
Website
House Press GalleryHouse Press Gallery
https://pressgallery.house.govhttps://pressgallery.house.gov
Senate Press GallerySenate Press Gallery
https://www.dailypress.senate.govhttps://www.dailypress.senate.gov
Press PhotographersPress Photographers’' Gallery Gallery
https://www.pressphotographers.senate.gov/
Resolutions of Inquiry
https://www.pressphotographers.senate.gov/
459 For additional information on advisory commissions, see CRS Report R40076, Congressional Commissions:
Overview and Considerations for Congress, by Jacob R. Straus.
460 For more information, see CRS Report R45337, Social Media Adoption by Members of Congress: Trends and
Congressional Considerations, by Jacob R. Straus.
461 For additional information on the congressional press galleries, see CRS Report R44816, Congressional News
Media and the House and Senate Press Galleries, by Sarah J. Eckman.
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Gallery Name
Website
House Radio and Television Gallery
http://radiotv.house.gov
Senate Radio and Television Gallery
https://www.radiotv.senate.gov
House Periodical Press Gallery
https://periodical.house.gov
Senate Periodical Press Gallery
http://www.periodicalpress.senate.gov
Source: U.S. Congress, Joint Committee on Printing, Official Congressional Directory, 116th Congress.
Resolutions of Inquiry
The House of Representatives can call upon the executive branch for factual information through The House of Representatives can call upon the executive branch for factual information through
resolutions of inquiry (House Rule XIII, clause 7).resolutions of inquiry (House Rule XIII, clause 7).462466 This is a This is a simple resolution considered in and considered in and
approved by only the House. Resolutions of inquiry are addressed to either the President or heads approved by only the House. Resolutions of inquiry are addressed to either the President or heads
of Cabinet-level agencies to supply specific factual information to the chamber. The resolutions of Cabinet-level agencies to supply specific factual information to the chamber. The resolutions
usually usually“request”"request" the President or the President or “direct”"direct" administrative heads to supply such information. In administrative heads to supply such information. In
calling upon the President for information, especially about foreign affairs, the House often adds calling upon the President for information, especially about foreign affairs, the House often adds
the qualifying languagethe qualifying language—“ "if not incompatible with the public interest.if not incompatible with the public interest.”" Resolutions of inquiry do Resolutions of inquiry do
not impose a legally enforceable duty to respond on executive branch officials.not impose a legally enforceable duty to respond on executive branch officials.463
467
Such resolutions are one way for Congress to ask for facts, documents, or specific information. Such resolutions are one way for Congress to ask for facts, documents, or specific information.
These devices are These devices are not to request an opinion or require an investigation (see box below). to request an opinion or require an investigation (see box below).
Resolutions of inquiry can trigger other congressional methods of obtaining information, such as Resolutions of inquiry can trigger other congressional methods of obtaining information, such as
through supplemental hearings or the regular legislative process.through supplemental hearings or the regular legislative process.
Resolutions of Inquiry in Practice
The first resolution of inquiry was approved on March 24, 1796, when the House sought documents in was approved on March 24, 1796, when the House sought documents in
connection with the Jay Treaty negotiations:connection with the Jay Treaty negotiations:
Resolved, That the President of the United States be requested to lay before this House a copy , That the President of the United States be requested to lay before this House a copy
of the instructions to the minister of the United States, who negotiated the treaty with the of the instructions to the minister of the United States, who negotiated the treaty with the
King of Great Britain … together with the correspondence and other documents relative to King of Great Britain … together with the correspondence and other documents relative to
the said treaty; excepting such of the said papers as any existing negotiation may render the said treaty; excepting such of the said papers as any existing negotiation may render
improper to be deliveredimproper to be delivered (Journal of the House of Representatives, 4th Cong., 1st sess., March 24,
1796, p. 480).
.468 A more
A modern illustration occurred on March 1, 1995, when the House adopted H.Res. 80, as amended ( occurred on March 1, 1995, when the House adopted H.Res. 80, as amended (104th
Congress, 1st104th Congress, 1st session). The resolution sought information about the Mexican peso crisis at the time and an session). The resolution sought information about the Mexican peso crisis at the time and an
Administration plan to use up to $20 Administration plan to use up to $20bil ionbillion in resources from the Exchange Stabilization Fund to help stabilize the in resources from the Exchange Stabilization Fund to help stabilize the
Mexican currency and financial system. The resolution read: Mexican currency and financial system. The resolution read:“"Resolved, That the President, is hereby requested to , That the President, is hereby requested to
provide the House of Representatives (consistent with the rules of the House), not later than 14 days after the provide the House of Representatives (consistent with the rules of the House), not later than 14 days after the
adoption of this resolution, the adoption of this resolution, thefol owingfollowing documents in the possession of the executive branch, if not inconsistent documents in the possession of the executive branch, if not inconsistent
with the public interest.with the public interest.”" The House request then specified the matters that the documents were to cover: the The House request then specified the matters that the documents were to cover: the
condition of the Mexican economy, consultations between the government of Mexico on the one hand and the condition of the Mexican economy, consultations between the government of Mexico on the one hand and the
U.S. Secretary of the Treasury and/or the International Monetary Fund on the other, market policies and tax U.S. Secretary of the Treasury and/or the International Monetary Fund on the other, market policies and tax
policies of the Mexican government, and repayment agreements between Mexico and the United States, among policies of the Mexican government, and repayment agreements between Mexico and the United States, among
other things.
462 For a more detailed discussion of Resolutions of Inquiry see CRS Report R40879, Resolutions of Inquiry: An
Analysis of Their Use in the House, 1947-2017, by Christopher M. Davis.
463CRS Report R40879, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017, by Christopher M.
Davis.
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If all the committees of referral doother things.
If the committee of referral does not report a resolution of inquiry within 14 legislative days not report a resolution of inquiry within 14 legislative days
after its introduction, any Representative can move to discharge the after its introduction, any Representative can move to discharge thepanelspanel and bring the and bring the
resolution to the floor for consideration. Action by the committees to report the resolution within resolution to the floor for consideration. Action by the committees to report the resolution within
the 14 days, however, effectively sidetracks House floor action on the resolution. For this reason, the 14 days, however, effectively sidetracks House floor action on the resolution. For this reason,
House committees virtually always mark up and report resolutions of inquiry referred to them, House committees virtually always mark up and report resolutions of inquiry referred to them,
even when they do not support the goals of the legislation. By reporting the resolution within the even when they do not support the goals of the legislation. By reporting the resolution within the
specified 14-day window, a committee of referral retains control over the measure and prevents specified 14-day window, a committee of referral retains control over the measure and prevents
supporters of the resolution from going to the floor and making the privileged motion to supporters of the resolution from going to the floor and making the privileged motion to
discharge.discharge.
Limitations and Riders on Appropriations
Congress generally uses a two-step legislative procedure: authorization of programs in bills Congress generally uses a two-step legislative procedure: authorization of programs in bills
reported by legislative committees followed by the funding of those programs in bills reported by reported by legislative committees followed by the funding of those programs in bills reported by
the Committees on Appropriations. Congressional rules generally encourage these two steps to be the Committees on Appropriations. Congressional rules generally encourage these two steps to be
distinct and sequential. Authorizations should not be in general appropriation bills or
appropriations in authorization measures. However, there are various exceptions to the general
principle that Congress should not make policy through the appropriations process. One
exception is the practice of permitting “limitations” in an appropriations bill. So-called riders
distinct and sequential. General appropriations bills should not contain authorizations, nor should authorization measures contain appropriations. However, there are various exceptions, one of which is permitting "limitations" in an appropriations bill. So-called riders (language extraneous to the subject of the bill) are also sometimes added to control agency (language extraneous to the subject of the bill) are also sometimes added to control agency
actions.actions.
Limitations
Although House rules forbid Although House rules forbidin any general appropriations bill a provision “changing existing
law,” certain “limitations” may be admitted. “provisions "changing existing law" in any general appropriations bill, they do permit certain "limitations." "Just as the House under its rules may decline to Just as the House under its rules may decline to
appropriate for a purpose authorized by law, so it may by limitation prohibit the use of the money appropriate for a purpose authorized by law, so it may by limitation prohibit the use of the money
for part of the purpose while appropriating for the remainder of it.for part of the purpose while appropriating for the remainder of it.”464"469 Limitations can Limitations can be an
effective device in oversight by strengtheningstrengthen Congress Congress’'s ability to exercise control over federal s ability to exercise control over federal
spending and to reduce expenditures that Congress believes to be unnecessary or undesirable. spending and to reduce expenditures that Congress believes to be unnecessary or undesirable.
Under House Rule XXI, no provision changing existing law can be reported in any general Under House Rule XXI, no provision changing existing law can be reported in any general
appropriation bill appropriation bill“"except germane provisions that retrench expenditures by the reduction of except germane provisions that retrench expenditures by the reduction of
amounts of money covered by the billamounts of money covered by the bill”" (the so-called Holman rule, rarely used in modern (the so-called Holman rule, rarely used in modern
practice).practice).
An Appropriations Limitation
The Hyde Amendment: Consolidated Appropriations Act, 2020, P.L. 116-93P.L. 116-93, 133 Stat. 2412, Title II,
§202 (2019):“"None of the funds appropriated by this title shall be available to pay for an abortion, except where None of the funds appropriated by this title shall be available to pay for an abortion, except where
the life of the mother would be endangered if the fetus were carried to term, or in the case of rape or incest: the life of the mother would be endangered if the fetus were carried to term, or in the case of rape or incest:
Provided, That should this prohibition be declared unconstitutional by a court of competent jurisdiction, this Provided, That should this prohibition be declared unconstitutional by a court of competent jurisdiction, this
section shall be section shall benul null and void."
The House amended Rule XXIand void.”
Rule XXI was amended in 1983 in an effort to restrict the number of limitations on appropriations in 1983 in an effort to restrict the number of limitations on appropriations
bills. The rule was changed again in 1995 by granting the majority leader a central role in bills. The rule was changed again in 1995 by granting the majority leader a central role in
determining consideration of limitation amendments. The procedures for limitation in the House determining consideration of limitation amendments. The procedures for limitation in the House
are set forth in the are set forth in the House Manual, Sections 1044(b) and 1053-1062., Sections 1044(b) and 1053-1062.
464 Constitution, Jefferson’s Manual, and Rules of the House of Representatives, H.DOC. NO. 115-177, 115th Cong., 2nd
sess. § 1053 (2019).
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Riders
“riders”"riders" are extraneous to the subject matter of the bill to which are extraneous to the subject matter of the bill to which
they are added. Riders appear in both authorization bills and appropriations bills. In the latter they are added. Riders appear in both authorization bills and appropriations bills. In the latter
case, such provisions would be subject to a point of order in the House on the grounds that they case, such provisions would be subject to a point of order in the House on the grounds that they
are attempts to place legislation in an appropriations bill, although in almost every case, the are attempts to place legislation in an appropriations bill, although in almost every case, the
procedure used to consider the legislation may restrict Membersprocedure used to consider the legislation may restrict Members’' ability to lodge a point of order. ability to lodge a point of order.
In the Senate, Rule XVI prohibits the addition to general appropriations bills of amendments that In the Senate, Rule XVI prohibits the addition to general appropriations bills of amendments that
are legislative or non-germane. Both chambers have procedures to waive these prohibitions.are legislative or non-germane. Both chambers have procedures to waive these prohibitions.
An Appropriations Rider
Department of Homeland Security Appropriations Act, 2007, P.L. 109-295 §550, 120 Stat. 1388
(2006):“"(a) No later than six months after the date of enactment of this Act, the Secretary of Homeland Security (a) No later than six months after the date of enactment of this Act, the Secretary of Homeland Security
shall issue interim final regulations establishing risk-based performance standards for security of chemical facilities shall issue interim final regulations establishing risk-based performance standards for security of chemical facilities
and requiring vulnerability assessments and the development and implementation of site security plans for and requiring vulnerability assessments and the development and implementation of site security plans for
chemical facilities: Provided, That such regulations shall apply to chemical facilities that, in the discretion of the chemical facilities: Provided, That such regulations shall apply to chemical facilities that, in the discretion of the
Secretary, present high levels of security risk: Provided further, That such regulations shall permit each such Secretary, present high levels of security risk: Provided further, That such regulations shall permit each such
facility, in developing and implementing site security plans, to select layered security measures that, in facility, in developing and implementing site security plans, to select layered security measures that, in
combination, appropriately address the vulnerability assessment and the risk-based performance standards for combination, appropriately address the vulnerability assessment and the risk-based performance standards for
security for the facility: Provided further, That the Secretary may not disapprove a site security plan submitted security for the facility: Provided further, That the Secretary may not disapprove a site security plan submitted
under this section based on the presence or absence of a particular security measure, but the Secretary may under this section based on the presence or absence of a particular security measure, but the Secretary may
disapprove a site security plan if the plan fails to satisfy the risk-based performance standards established by this disapprove a site security plan if the plan fails to satisfy the risk-based performance standards established by this
section: Provided further, That the Secretary may approve alternative security programs established by private section: Provided further, That the Secretary may approve alternative security programs established by private
sector entities, Federal, State, or local authorities, or other applicable laws if the Secretary determines that the sector entities, Federal, State, or local authorities, or other applicable laws if the Secretary determines that the
requirements of such programs meet the requirements of this section and the interim regulations: Provided requirements of such programs meet the requirements of this section and the interim regulations: Provided
further, That the Secretary shall review and approve each vulnerability assessment and site security plan required further, That the Secretary shall review and approve each vulnerability assessment and site security plan required
under this section: Provided further, That the Secretary shall not apply regulations issued pursuant to this section under this section: Provided further, That the Secretary shall not apply regulations issued pursuant to this section
to facilities regulated pursuant to the Maritime Transportation Security Act of 2002, P.L. 107-295, as amended; to facilities regulated pursuant to the Maritime Transportation Security Act of 2002, P.L. 107-295, as amended;
Public Water Systems, as defined by section 1401 of the Safe Drinking Water Act, P.L. 93-523, as amended; Public Water Systems, as defined by section 1401 of the Safe Drinking Water Act, P.L. 93-523, as amended;
Treatment Works as defined in section 212 of the Federal Water Treatment Works as defined in section 212 of the Federal WaterPol utionPollution Control Act, Public Law 92-500, as Control Act, Public Law 92-500, as
amended; any facility owned or operated by the Department of Defense or the Department of Energy, or any amended; any facility owned or operated by the Department of Defense or the Department of Energy, or any
facility subject to regulation by the Nuclear Regulatory Commission.facility subject to regulation by the Nuclear Regulatory Commission.”
" Legislative Veto and Advance Notice
Many acts of Congress have delegated authority to the executive branch on the condition that Many acts of Congress have delegated authority to the executive branch on the condition that
proposed executive actions be submitted to Congress for review and possible disapproval before proposed executive actions be submitted to Congress for review and possible disapproval before
they can be put into effect. This way of ensuring continuing oversight of policy areas follows two they can be put into effect. This way of ensuring continuing oversight of policy areas follows two
paths: the legislative veto and advance notification.paths: the legislative veto and advance notification.
Legislative Veto
Beginning in 1932,Beginning in 1932,465470 Congress delegated authority to the executive branch with the condition Congress delegated authority to the executive branch with the condition
that proposed executive actions would be first submitted to Congress and subjected to disapproval that proposed executive actions would be first submitted to Congress and subjected to disapproval
by a committee, a single house, or both houses. Over the years, other types of legislative veto by a committee, a single house, or both houses. Over the years, other types of legislative veto
were added, allowing Congress to control executive branch actions without having to enact a law. were added, allowing Congress to control executive branch actions without having to enact a law.
In 1983, the Supreme Court, in In 1983, the Supreme Court, in INS v. Chadha, ruled that the legislative veto was unconstitutional , ruled that the legislative veto was unconstitutional
on the grounds that all exercises of legislative power that affect the rights, duties, and relations of on the grounds that all exercises of legislative power that affect the rights, duties, and relations of
persons outside the legislative branch must satisfy the constitutional requirements of persons outside the legislative branch must satisfy the constitutional requirements of
465 Legislative Appropriations Act, 1933, 47 Stat. 382, 414.
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bicameralism and presentment of a bill or resolution to the President for his signature or veto.bicameralism and presentment of a bill or resolution to the President for his signature or veto.466
471 Despite this ruling, Congress has continued to enact proscribed legislative vetoes, and it has also Despite this ruling, Congress has continued to enact proscribed legislative vetoes, and it has also
relied on informal arrangements to provide comparable controls.relied on informal arrangements to provide comparable controls.467
472 Statutory Legislative Vetoes
Congress responded to Congress responded to Chadha by converting some of the one-house and two-house legislative by converting some of the one-house and two-house legislative
vetoes to joint resolutions of approval or disapproval, thus satisfying the requirements of vetoes to joint resolutions of approval or disapproval, thus satisfying the requirements of
bicameralism and presentment. However, Congress continues to rely on legislative vetoes. Since bicameralism and presentment. However, Congress continues to rely on legislative vetoes. Since
the the Chadha decision, hundreds of legislative vetoes have been enacted into public law, usually in decision, hundreds of legislative vetoes have been enacted into public law, usually in
appropriations acts. These legislative vetoes are exercised by the Appropriations Committees. appropriations acts. These legislative vetoes are exercised by the Appropriations Committees.
Typically, funds may not be used or an executive action may not begin until the Appropriations Typically, funds may not be used or an executive action may not begin until the Appropriations
Committees have approved—or, at least, not disapproved—the planned action, often within a Committees have approved—or, at least, not disapproved—the planned action, often within a
specified time limit.specified time limit.
A Sample Statutory Legislative Veto Provision
Department of Transportation and Related Agencies Appropriations Act, 2001, 114 Stat. 1356A-2
(2000): For the appropriation account For the appropriation account“"Transportation Administrative Service Center,Transportation Administrative Service Center,”" no assessments may be no assessments may be
levied against any program, budget activity, subactivitylevied against any program, budget activity, subactivity, or project funded by this statute or project funded by this statute“"unless notice of such unless notice of such
assessments and the basis therefore are presented to the House and Senate Committees on Appropriations and assessments and the basis therefore are presented to the House and Senate Committees on Appropriations and
are approved by such Committees.are approved by such Committees.”
"
Informal Legislative Vetoes
Unlike a formal legislative veto, where the arrangement is spelled out in the law, the informal Unlike a formal legislative veto, where the arrangement is spelled out in the law, the informal
legislative veto occurs where an executive official pledges not to proceed with an activity until legislative veto occurs where an executive official pledges not to proceed with an activity until
Congress or certain committees agree to it. An example of this appeared during the Congress or certain committees agree to it. An example of this appeared during the101st
101st Congress. In the Congress. In the“"bipartisan accordbipartisan accord”" on funding the Contras in Nicaragua, the Administration on funding the Contras in Nicaragua, the Administration
pledged that no funds would be obligated beyond November 30, 1989, unless affirmed by letter pledged that no funds would be obligated beyond November 30, 1989, unless affirmed by letter
from the relevant authorization and appropriations committees and the bipartisan leadership of from the relevant authorization and appropriations committees and the bipartisan leadership of
Congress.Congress.468
Advance Notification or Report-and-Wait
473 While such arrangements may not be directly enforceable in light of the Chadha decision, scholar Louis Fisher has observed that Congress retains an effective veto on a variety of executive branch decisions because of the political and structural dynamics between the branches, particularly related to the appropriations power.474
executive branch or funds obligated, Congress must first be advised or informed, ordinarily executive branch or funds obligated, Congress must first be advised or informed, ordinarily
through a full written statement, of what is being proposed. These statutory provisions usually through a full written statement, of what is being proposed. These statutory provisions usually
provide for a period of time during which the executive branch must defer action, giving provide for a period of time during which the executive branch must defer action, giving
Congress an opportunity to pass legislation prohibiting the pending action or using political Congress an opportunity to pass legislation prohibiting the pending action or using political
pressure to cause executive officials to retract or modify the proposed action. The Supreme Court pressure to cause executive officials to retract or modify the proposed action. The Supreme Court
has upheld this type of has upheld this type of“"report-and-waitreport-and-wait”" provision, noting: provision, noting: “"The value of the reservation of the The value of the reservation of the
power to examine proposed rules, laws and regulations before they become effective is well power to examine proposed rules, laws and regulations before they become effective is well
understood by Congress. It is frequently, as here, employed to make sure that the action under the understood by Congress. It is frequently, as here, employed to make sure that the action under the
delegation squares with the Congressional purpose.”469
466 INS v. Chadha, 462 U.S. 919 (1983).
467 See generally Curtis A. Bradley, “Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and
Congressional Workarounds,” Journal of Legal Analysis, vol. 13, no. 1 (2021), pp. 439-501.
468 See Bernard Weinraub, “Bush and Congress Sign Policy Accord on Aid to Contras,” New York Times, March 25,
1986, https://www.nytimes.com/1989/03/25/world/bush-and-congress-sign-policy-accord-on-aid-to-contras.html.
469 Sibbach v. Wilson, 312 U.S. 1 (1941).
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delegation squares with the Congressional purpose."475 A Report-and-Wait Provision
Iran Nuclear Agreement Review Act of 2015, P.L. 114-17 P.L. 114-17 §135(b):“"During the 30-calendar day period During the 30-calendar day period
fol owingfollowing transmittal by the President of an agreement pursuant to subsection (a), the Committee on Foreign transmittal by the President of an agreement pursuant to subsection (a), the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives shall, as Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives shall, as
appropriate, hold hearings and briefings and otherwise obtain information in order to appropriate, hold hearings and briefings and otherwise obtain information in order toful yfully review such agreement review such agreement
… and during the period for congressional review provided in paragraph (1), including any additional period as … and during the period for congressional review provided in paragraph (1), including any additional period as
applicable under the exception provided in paragraph (2), the President may not waive, suspend, reduce, provide applicable under the exception provided in paragraph (2), the President may not waive, suspend, reduce, provide
relief from, or otherwise limit the application of statutory sanctions with respect to Iran under any provision of relief from, or otherwise limit the application of statutory sanctions with respect to Iran under any provision of
law or refrain from applying any such sanctions pursuant to an agreement described in subsection (a).law or refrain from applying any such sanctions pursuant to an agreement described in subsection (a).”
Independent Counsel
" Independent Counsel Another mechanism that historically supported congressional oversight were special rules for the appointment of independent counsel within the DOJ. The statutory provisions for the appointment of an independent counsel (formerly called The statutory provisions for the appointment of an independent counsel (formerly called“"special special
prosecutor”prosecutor") were originally enacted as part of the Ethics in Government Act of ) were originally enacted as part of the Ethics in Government Act of 19784701978476 and were and were
reauthorized on several occasions before expiring in 1999.reauthorized on several occasions before expiring in 1999.
The mechanisms of the independent counsel law were triggered by the receipt of information by The mechanisms of the independent counsel law were triggered by the receipt of information by
the Attorney General that alleged a violation of any federal criminal law (other than certain the Attorney General that alleged a violation of any federal criminal law (other than certain
misdemeanors or misdemeanors or“infractions”"infractions") by a person covered by the act. The law automatically covered ) by a person covered by the act. The law automatically covered
certain high-level federal officials—including the President, Vice President, and heads of certain high-level federal officials—including the President, Vice President, and heads of
departments. In addition, the Attorney General had discretion to seek an independent counsel for departments. In addition, the Attorney General had discretion to seek an independent counsel for
any person for whom there may exist a personal, financial, or political conflict of interest for DOJ any person for whom there may exist a personal, financial, or political conflict of interest for DOJ
personnel to investigate, and the Attorney General could seek an independent counsel for any personnel to investigate, and the Attorney General could seek an independent counsel for any
Member of Congress when the Attorney General deemed it to be in the Member of Congress when the Attorney General deemed it to be in the“"public interest.public interest.” 471
" 477
There was no specific term of appointment for independent counsels. They could serve for as There was no specific term of appointment for independent counsels. They could serve for as
long as it took to complete their duties concerning the specific matter within their defined and long as it took to complete their duties concerning the specific matter within their defined and
limited jurisdictions. Once a matter was completed, the independent counsel filed a final report. limited jurisdictions. Once a matter was completed, the independent counsel filed a final report.
The Supreme Court upheld the procedures for appointing and removing the independent counsel The Supreme Court upheld the procedures for appointing and removing the independent counsel
in in Morrison v. v. Olson..472
478
The conduct of an independent counsel was subject to congressional oversight, and an The conduct of an independent counsel was subject to congressional oversight, and an
independent counsel was required to cooperate with that oversight.independent counsel was required to cooperate with that oversight.473479 In addition, the independent In addition, the independent
counsel was required to report to the House of Representatives any counsel was required to report to the House of Representatives any“"substantial and crediblesubstantial and credible”
" information that may constitute grounds for any impeachment.information that may constitute grounds for any impeachment.474
480
The independent counsel statute expired in 1992, partly because of criticism directed at Lawrence The independent counsel statute expired in 1992, partly because of criticism directed at Lawrence
Walsh’Walsh's investigation of Iran-Contra. The statute was reauthorized in 1994, but s investigation of Iran-Contra. The statute was reauthorized in 1994, but Congress—facing objections to the objections to the
investigations conducted by Kenneth Starr into Whitewater, Monica Lewinsky, and other mattersinvestigations conducted by Kenneth Starr into Whitewater, Monica Lewinsky, and other matters
put Congress—was under pressure to let the statute lapse on June 30, 1999. under pressure to let the statute lapse on June 30, 1999.
Unless Congress in the future reauthorizes the independent counsel, the only available Unless Congress in the future reauthorizes the independent counsel, the only available optionanalogue for for
an independent counsel is to have the Attorney General invoke existing authority to appoint a an independent counsel is to have the Attorney General invoke existing authority to appoint a
special prosecutor to investigate a particular matter. Current DOJ regulations provide for the special prosecutor to investigate a particular matter. Current DOJ regulations provide for the
470 These provisions were codified at 28 U.S.C. §§591-599.
471 For additional information, see CRS Report R44857, Special Counsel Investigations: History, Authority,
Appointment and Removal, by Jared P. Cole.
472 487 U.S. 654 (1988).
473 28 U.S.C. § 595(a)(1).
474 28 U.S.C. § 595(c).
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appointment of outside, temporary special counsels to conduct investigations and possible appointment of outside, temporary special counsels to conduct investigations and possible
prosecutions of certain sensitive matters or matters that may raise a conflict for the DOJ.prosecutions of certain sensitive matters or matters that may raise a conflict for the DOJ.475481 Such Such
special counsels would have substantially less independence than the statutory independent special counsels would have substantially less independence than the statutory independent
counselcounsel would, including removal for , including removal for“"misconduct, dereliction of duty, incapacity, conflict of interest, or misconduct, dereliction of duty, incapacity, conflict of interest, or
for other good cause, including violation of Department policies.for other good cause, including violation of Department policies.”
"482
These special counsel rules have been invoked in These special counsel rules have been invoked in at least twoa number of recent and high-profile cases. recent and high-profile cases. First,
For example, in May 2017, Deputy Attorney General Rod Rosenstein appointed former FBI director Robert in May 2017, Deputy Attorney General Rod Rosenstein appointed former FBI director Robert
Mueller as special counsel to investigate the Russian governmentMueller as special counsel to investigate the Russian government’'s efforts to s efforts to “"influence the 2016 influence the 2016
election and related matters.election and related matters.”476 Then, in October 2020"483 Also, in January 2023, Attorney General , Attorney General Bill Barr appointed
John Durham, then-Merrick Garland appointed Robert Hur, a former U.S. Attorney for the District of U.S. Attorney for the District of ConnecticutMaryland, to investigate "possible unauthorized removal and retention of classified documents or other records" retained by then-President Biden from his prior term as Vice President.484, to investigate “intelligence and
law-enforcement activities surrounding the 2016 presidential election.”477
Reporting, Testimony, Notice, and Consultation, Requirements
Congressional oversight of the executive branch is dependent to a large degree upon information Congressional oversight of the executive branch is dependent to a large degree upon information
supplied by agencies. Congress has developed a number of tools—including reporting and notice supplied by agencies. Congress has developed a number of tools—including reporting and notice
requirements, statutory testimony requirements, and consultation requirementsrequirements, statutory testimony requirements, and consultation requirements485—to help ensure —to help ensure
that Congress and the public are aware of executive branch activities.Congress and the public are aware of executive branch activities.478486 The bulk of this information The bulk of this information
arrives on Capitol Hill in the thousands of written reports that are prepared by agencies and arrives on Capitol Hill in the thousands of written reports that are prepared by agencies and
received by Congress on an annual basis.479
Concerns about unnecessary, duplicative, and wasteful reports have prompted efforts to
reexamine these requirements.480 One such initiative, in part stimulated by recommendations from
the Vice President’s National Performance Review and from the GAO, resulted in the Federal
Reports Elimination and Sunset Act of 1995. In 2010, Congress established a statutory process
that allows executive agencies and the President to more systematically propose the elimination
or modification of reporting requirements.481
Reporting Requirements
Reporting requirements affect executive and administrative agencies and officers, including the
President, independent boards and commissions, and federally chartered corporations (as well as
the judiciary). These statutory provisions vary in terms of the specificity, detail, and type of
475 28 C.F.R. Part 600.
476 Office of Deputy Attorney General, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian
Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/pr/
appointment-special-counsel.
477 Office of Attorney General, Order No. 4878-2020, Appointment of Special Counsel to Investigate Matters Related
to the Intelligence Activities and Investigations Arising Out of the 2016 Presidential Campaigns (Oct. 19, 2020),
https://www.justice.gov/file/1370931/download.
478 See Congress Evolving in the Face of Complexity: Legislative Efforts to Embed Transparency, Participation, and
Representation in Agency Operations, by Clinton T. Brass and Wendy Ginsberg, in CRS Committee Print CP10000,
The Evolving Congress: A Committee Print Prepared for the Senate Committee on Rules and Administration,
coordinated by Walter J. Oleszek, Michael L. Koempel, and Robert Jay Dilger.
479 A 2020 CRS study identified 3,359 reporting requirements enacted during the 115th Congress. CRS Report R46357,
Congressionally Mandated Reports: Overview and Considerations for Congress, by William T. Egar (archived).
480 For discussion, see the 2013 CRS Report R42490, Reexamination of Agency Reporting Requirements: Annual
Process Under the GPRA Modernization Act of 2010 (GPRAMA), by Clinton T. Brass.
481CRS Report R42490, Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA
Modernization Act of 2010 (GPRAMA), by Clinton T. Brass.
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information that Congress demands.482received by Congress or otherwise made publicly available.487
semiannually or at the end of a fiscal year, or submitted only if or when a specific event, activity, semiannually or at the end of a fiscal year, or submitted only if or when a specific event, activity,
or set of conditions exists.or set of conditions exists.483 The reports495 A report may also call upon one or more agencies, commissions, may also call upon one or more agencies, commissions,
or officers to:or officers to:
study and provide recommendations about a particular problem or concern;study and provide recommendations about a particular problem or concern;
alert Congress or particular committees and subcommittees about a proposed alert Congress or particular committees and subcommittees about a proposed
or planned activity or operation;or planned activity or operation;
provide information about specific ongoing or just-completed operations, provide information about specific ongoing or just-completed operations,
projects, or programs; orprojects, or programs; or
summarize an agencysummarize an agency’'s activities for the year or the prior six months.s activities for the year or the prior six months.
Examples of Reporting Requirements in Law
Early Requirement in the 1789 Treasury Department Act:
“
"That it shall be the duty of the Secretary of the Treasury … to make report, and give information to either That it shall be the duty of the Secretary of the Treasury … to make report, and give information to either
branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by
the Senate or House of Representatives, or which shall appertain to his officethe Senate or House of Representatives, or which shall appertain to his office”" (1 Stat. 65-66 (1789)). (1 Stat. 65-66 (1789)).
Reporting on support for air carriers in the Coronavirus Aid, Relief, and Economic Security Act:
“
"(a) REPORT.—Not later than November 1, 2020, the Secretary shall submit to the Committee on (a) REPORT.—Not later than November 1, 2020, the Secretary shall submit to the Committee on
Transportation and Infrastructure and the Committee on Financial Services of the House of Representatives and Transportation and Infrastructure and the Committee on Financial Services of the House of Representatives and
the Committee on Commerce, Science, and Transportation and the Committee on Banking, Housing, and Urban the Committee on Commerce, Science, and Transportation and the Committee on Banking, Housing, and Urban
Affairs of the Senate a report on the financial assistance provided to air carriers and contractors under this Affairs of the Senate a report on the financial assistance provided to air carriers and contractors under this
subtitle, including a description of any financial assistance provided.subtitle, including a description of any financial assistance provided.
(b) UPDATE.—Not later than the last day of the 1-year period (b) UPDATE.—Not later than the last day of the 1-year periodfol owingfollowing the date of enactment of this Act, the the date of enactment of this Act, the
Secretary shall update and submit to the Committee on Transportation and Infrastructure and the Committee on Secretary shall update and submit to the Committee on Transportation and Infrastructure and the Committee on
Financial Services of the House of Representatives and the Committee on Commerce, Science, and Financial Services of the House of Representatives and the Committee on Commerce, Science, and
Transportation and the Committee on Banking, Housing, and Urban Affairs of the Senate the report described in Transportation and the Committee on Banking, Housing, and Urban Affairs of the Senate the report described in
subsection (a).subsection (a).”" (134 Stat. 501 (2020)). (134 Stat. 501 (2020)).
Testimony Requirements
Congress has established statutory requirements for certain executive branch officials to appear Congress has established statutory requirements for certain executive branch officials to appear
and provide testimony before identified committees.and provide testimony before identified committees.484496 At least two such provisions date to At least two such provisions date to
1976,1976,485497 and many testimony requirements have been enacted since 2007, particularly in and many testimony requirements have been enacted since 2007, particularly in
legislation responding to the financial crisis.486 Recently, the Coronavirus Aid, Relief, and
Economic Security (CARES) Act included requirements that the Secretary of the Treasury and
482 For more information, see CRS Report R46661, Strategies for Identifying Reporting Requirements and Submitted
Reporting to Congress, by Kathleen E. Marchsteiner.
483 See CRS Report R46862, How Are Reporting Requirements Submitted to Congress?, by Kathleen E. Marchsteiner.
484 CRS is aware of approximately 25 such requirements under current law. See CRS Report R47288, Statutory
Testimony Requirements: Background and Issues for Congress, by Ben Wilhelm.
485 Title 7, Section 228(c), of the U.S. Code requires the Secretary of Agriculture to testify annually on the department’s
budget before the Agriculture Committees, and Title 39, Section 2401(e), requires the U.S. Postal Service (USPS)—the
specific official is not identified—to appear annually before the Senate Committee on Homeland Security and
Governmental Affairs and the House Committee on Oversight and Reform regarding the agency’s annual budget.
486 For example, Title 12, Section 5496(a), requires the director of the Consumer Financial Protection Bureau to appear
before the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Energy and
Commerce on a semiannual basis.
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the chair of the Federal Reserve Board testify on a quarterly basis before the Senate Committee
on Banking, Housing, and Urban Affairs and the House Committee on Financial Services.487
Notice and Prior Consultation
legislation responding to the financial crisis.498 For example, in 2020, Congress included a provision in appropriations legislation that requires the Director of National Intelligence to testify on the annual assessment of worldwide threats before the intelligence committees if asked by the committees to do.499
Notice and Prior Consultation
Congress sometimes includes provisions in law or language in committee reports that requires or Congress sometimes includes provisions in law or language in committee reports that requires or
directs agencies to consult with Congress or other stakeholders before taking certain actions. directs agencies to consult with Congress or other stakeholders before taking certain actions.
These requirements can inform Congress and the public about agenciesThese requirements can inform Congress and the public about agencies’' plans and activities. In plans and activities. In
addition, the provisions may create opportunities for Congress and nonfederal stakeholders to addition, the provisions may create opportunities for Congress and nonfederal stakeholders to
influence an agencyinfluence an agency’'s decisionmaking in areas such as reallocation of budgetary resourcess decisionmaking in areas such as reallocation of budgetary resources.
through reprogramming,488 notice-and-comment rulemaking,489 and establishment of goals.490
A Sample Prior Consultation Provision
A provision in the conference committee report on the 1978 Ethics in Government Act A provision in the conference committee report on the 1978 Ethics in Government Act il ustratesillustrates this this
development: development:“"The conferees expect the Attorney General to The conferees expect the Attorney General to consult with the Judiciary Committees of both with the Judiciary Committees of both
Houses of Congress Houses of Congress before substantially expanding the scope of authority or mandate of the Public Integrity substantially expanding the scope of authority or mandate of the Public Integrity
Section of the Criminal DivisionSection of the Criminal Division”" (emphasis added). (emphasis added).
500 Statutory Oversight Enablers
Congress has passed a number of laws designed to provide additional information to Congress Congress has passed a number of laws designed to provide additional information to Congress
(and the public) on the operations of the executive branch. These laws also add controls that may (and the public) on the operations of the executive branch. These laws also add controls that may
reduce the demands on Congressreduce the demands on Congress’'s time by shifting responsibility for some routine monitoring to s time by shifting responsibility for some routine monitoring to
professionals in the executive branch.professionals in the executive branch.
Many such laws include reporting requirements or other provisions that involve public Many such laws include reporting requirements or other provisions that involve public
participation. Some illustrative examples are included below, along with citations to when they participation. Some illustrative examples are included below, along with citations to when they
were originally enacted.were originally enacted.491
501 Direct Expansions of Congress’'s Oversight Authority
A number of laws directly augment and safeguard CongressA number of laws directly augment and safeguard Congress’'s authority, mandate, and resources s authority, mandate, and resources
to conduct oversight and legislative investigations. Pertinent statutes affect congressional to conduct oversight and legislative investigations. Pertinent statutes affect congressional
proceedings, such as obstruction (18 U.S.C. §1505), false statements by witnesses (18 U.S.C. proceedings, such as obstruction (18 U.S.C. §1505), false statements by witnesses (18 U.S.C.
§1001(c)(2)), and contempt procedures (2 U.S.C. §§192, 194). Some other relevant laws are §1001(c)(2)), and contempt procedures (2 U.S.C. §§192, 194). Some other relevant laws are
discussed below.discussed below.
1912 anti-gag legislation and whistleblower protection laws for federal
employees:
Anti-Gag Legislation and Whistleblower Protection Laws for Federal EmployeesThe The Lloyd-La Follette Act of 1912 (5 U.S.C. §7211) countered executive (5 U.S.C. §7211) countered executive
orders issued by Presidents Theodore Roosevelt and William Howard Taft orders issued by Presidents Theodore Roosevelt and William Howard Taft
that prohibited civil service employees from communicating directly with
487 P.L. 116-136, §4026.
488 CRS Report R43098, Transfer and Reprogramming of Appropriations: An Overview of Authorities, Limitations, and
Procedures, by Michelle D. Christensen.
489 CRS Report RL32240, The Federal Rulemaking Process: An Overview, coordinated by Maeve P. Carey.
490 CRS Report R42379, Changes to the Government Performance and Results Act (GPRA): Overview of the New
Framework of Products and Processes, by Clinton T. Brass.
491 Many of the laws were codified in the U.S. Code, sometimes in one place and other times across a number of
locations, and subsequently amended.
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that prohibited civil service employees from communicating directly with Congress. It also guaranteed that Congress. It also guaranteed that “"the right of any persons employed in the the right of any persons employed in the
civil service … to petition Congress, or any Member thereof, or to furnish civil service … to petition Congress, or any Member thereof, or to furnish
information to either House of Congress, or to any committee or member information to either House of Congress, or to any committee or member
thereof, shall not be denied or interfered with.thereof, shall not be denied or interfered with.”
"
The The Whistleblower Protection Act of 1989 (P.L. 101-12, 5 U.S.C. ch. 12) (P.L. 101-12, 5 U.S.C. ch. 12)
makes it a prohibited personnel practice for an agency makes it a prohibited personnel practice for an agency employee to take any to take any
action against an employee that is in retaliation for disclosure of information action against an employee that is in retaliation for disclosure of information
that the employee believes relates to violation of law, rule, or regulation or that the employee believes relates to violation of law, rule, or regulation or
evidences gross mismanagement, waste, fraud, or abuse of authority (5 evidences gross mismanagement, waste, fraud, or abuse of authority (5
U.S.C. §2302(b)(8)). The prohibition is explicitly intended to protect U.S.C. §2302(b)(8)). The prohibition is explicitly intended to protect
disclosures to Congress: disclosures to Congress:“"This subsection shall not be construed to authorize This subsection shall not be construed to authorize
the withholding of information from Congress or the taking of any personnel the withholding of information from Congress or the taking of any personnel
action against an employee who discloses information to Congress.action against an employee who discloses information to Congress.”
"
TheThe Intelligence Community Whistleblower Protection Act (P.L. 105-272 (P.L. 105-272) )
establishes special procedures for personnel in the Intelligence Community to establishes special procedures for personnel in the Intelligence Community to
transmit urgent concerns involving classified information to inspectors transmit urgent concerns involving classified information to inspectors
general and the House and Senate Select Committees on Intelligence.general and the House and Senate Select Committees on Intelligence.
Section 713 of P.L. 118-47502Section 713 of Division E of the Consolidated Appropriations Act, 2021 (P.L.
116-260), prohibits the payment of the salary of any officer or employee of prohibits the payment of the salary of any officer or employee of
the federal government who prohibits, prevents, attempts, or threatens to the federal government who prohibits, prevents, attempts, or threatens to
prohibit or prevent any other federal officer or employee from having direct prohibit or prevent any other federal officer or employee from having direct
oral or written communication or contact with any Member, committee, or oral or written communication or contact with any Member, committee, or
subcommittee. This prohibition applies irrespective of whether such subcommittee. This prohibition applies irrespective of whether such
communication was initiated by such officer or employee or in response to communication was initiated by such officer or employee or in response to
the request or inquiry of such Member, committee, or subcommittee. Further, the request or inquiry of such Member, committee, or subcommittee. Further,
any punishment or threat of punishment because of any contact or any punishment or threat of punishment because of any contact or
communication by an officer or employee with a Member, committee, or communication by an officer or employee with a Member, committee, or
subcommittee is prohibited under the provisions of this act.subcommittee is prohibited under the provisions of this act.
Section 743 of P.L. 118-47Section 743 of Division E of the Consolidated Appropriations Act, 2021 (P.L.
116-260), prohibits the expenditure of any appropriated funds for use in prohibits the expenditure of any appropriated funds for use in
implementing or enforcing agreements in Standard Forms 312 and 4414 of implementing or enforcing agreements in Standard Forms 312 and 4414 of
the government or any other nondisclosure policy, form, or agreement if such the government or any other nondisclosure policy, form, or agreement if such
policy, form, or agreement does not contain a provision that states that the policy, form, or agreement does not contain a provision that states that the
restrictions are consistent with and do not supersede, conflict with, or restrictions are consistent with and do not supersede, conflict with, or
otherwise alter the employee obligation, rights, and liabilities created by:otherwise alter the employee obligation, rights, and liabilities created by:
Executive Order 12958Executive Order 12958;492,503 the Lloyd-La Follette Act (5 U.S.C. §7211); the Lloyd-La Follette Act (5 U.S.C. §7211);
the Military Whistleblower Act (10 U.S.C. §1034);the Military Whistleblower Act (10 U.S.C. §1034);
the Whistleblower Protection Act (5 U.S.C. §2303(b)(8));the Whistleblower Protection Act (5 U.S.C. §2303(b)(8));
the Intelligence Identities Protection Act (50 U.S.C. §§421 et seq.);the Intelligence Identities Protection Act (50 U.S.C. §§421 et seq.);
and U.S. Code and
Title 18, Sections 641, 793, 794, 798, and 952Title 18, Sections 641, 793, 794, 798, and 952, and Title and Title
50, Section 783(b)50, Section 783(b).
, of the U.S. Code.Budget and Accounting Act of 1921 (P.L. 67-13)
492 Executive Order 12958 was promulgated by President Bill Clinton on April 20, 1995, and established the
classification system for national security information.
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(P.L. 67-13)Established GAO (which was then named the General Accounting Office) as Established GAO (which was then named the General Accounting Office) as
“"independent of the executive departments and under the control and independent of the executive departments and under the control and
direction of the Comptroller General of the United States.direction of the Comptroller General of the United States.”
"
Granted authority to the Comptroller General to Granted authority to the Comptroller General to “"investigate, at the seatinvestigate, at the seat of of
government or elsewhere, all matters relating to the receipt, disbursement, government or elsewhere, all matters relating to the receipt, disbursement,
and application of public funds.and application of public funds.”
"Legislative Reorganization Act of 1946 (P.L. 79-601)(P.L. 79-601):
Mandated House and Senate committees to exercise Mandated House and Senate committees to exercise “"continuouscontinuous
watchfulness”watchfulness" of the administration of laws and programs under their of the administration of laws and programs under their
jurisdiction.
jurisdictions.
Authorized, for the first time in history, permanent professional andAuthorized, for the first time in history, permanent professional and clerical clerical
staff for committees.staff for committees.
Authorized and directed the Comptroller General to make administrative Authorized and directed the Comptroller General to make administrative
management analyses of each executive branch agency.management analyses of each executive branch agency.
Established
Renamed and reorganized the Legislative Reference Service the Legislative Reference Service,—originally established in 1914 as the Legislative Reference Bureau and later renamed the Congressional renamed the Congressional
Research Service by the 1970 Legislative Reorganization Act (see below)Research Service by the 1970 Legislative Reorganization Act (see below), —as as
a separate department in the Library of Congress. It called upon the service a separate department in the Library of Congress. It called upon the service
“"to advise and assist any committee of either House or joint committee in the to advise and assist any committee of either House or joint committee in the
analysis, appraisal, and evaluation of any legislative proposal … and analysis, appraisal, and evaluation of any legislative proposal … and
otherwise to assist in furnishing a basis forotherwise to assist in furnishing a basis for the proper determination of the proper determination of
measures before the committee.measures before the committee.”
"Intergovernmental Cooperation Act of 1968 (P.L. 90-577)(P.L. 90-577):
Required that House and Senate committees having jurisdiction over Required that House and Senate committees having jurisdiction over grants-
in-aid conduct studies of the programs under which conduct studies of the programs under which grants-in-aidsuch grants are made. are made.
Provided that studies of these programs are to determine whether (1) their Provided that studies of these programs are to determine whether (1) their
purposes have been met, (2) their objectives could be carried on without purposes have been met, (2) their objectives could be carried on without
further assistance, (3) they are adequate to meet needs, and (4) any changes further assistance, (3) they are adequate to meet needs, and (4) any changes
in programs or procedures should be made.in programs or procedures should be made.
Legislative Reorganization Act of 1970 (P.L. 91-510)(P.L. 91-510):
Revised and rephrased in more explicit language the oversight function of Revised and rephrased in more explicit language the oversight function of
House and Senate standing committees: House and Senate standing committees: “"each standing committee shall each standing committee shall
review and study, on a continuing basis, the application, administration, and and study, on a continuing basis, the application, administration, and
execution of those laws or parts of laws, the subject matter of which is within execution of those laws or parts of laws, the subject matter of which is within
the jurisdiction of that committee.the jurisdiction of that committee.”
"
Required most House and Senate committees to issue biennial oversight Required most House and Senate committees to issue biennial oversight
reports.reports.
Strengthened the program evaluation responsibilities and other authorities Strengthened the program evaluation responsibilities and other authorities
and duties of the GAO.and duties of the GAO.
Re-designated the Legislative Reference Service as the Congressional Re-designated the Legislative Reference Service as the Congressional
Research Service, strengthening its policy analysis role and expanding its Research Service, strengthening its policy analysis role and expanding its
other responsibilities to Congress.other responsibilities to Congress.
Recommended that House and Senate committees ascertain whether Recommended that House and Senate committees ascertain whether
programs within their jurisdictions could be appropriated for annually.programs within their jurisdictions could be appropriated for annually.
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Required most House and Senate committees to include in their committee Required most House and Senate committees to include in their committee
reports on legislation five-year cost estimates for carrying out the proposed reports on legislation five-year cost estimates for carrying out the proposed
programs.programs.
Increased by two the number of permanent staff for each standing committee, Increased by two the number of permanent staff for each standing committee,
including provisions for minority party hiring, and provided for hiring of including provisions for minority party hiring, and provided for hiring of
consultants by standing committees.consultants by standing committees.
Federal Advisory Committee Act of 1972 (P.L. 92-463(P.L. 92-463):
, 5 U.S.C. ch. 10)Directed House and Senate committees to make continuing reviews of the Directed House and Senate committees to make continuing reviews of the
activities of each advisory committee under their jurisdictions.activities of each advisory committee under their jurisdictions.
The studies
Reviews are to determine whether (1) such committee should be abolished are to determine whether (1) such committee should be abolished
or merged with any other advisory committee, (2) its responsibility should be or merged with any other advisory committee, (2) its responsibility should be
revised, and (3) it performs a necessary function not already being revised, and (3) it performs a necessary function not already being
performed.performed.493
504Congressional Budget and Impoundment Control Act of 1974 (P.L. 93-344(P.L. 93-344):
)Expanded House and Senate committee authority for oversight. Permitted Expanded House and Senate committee authority for oversight. Permitted
committees to appraise and evaluate programs themselves committees to appraise and evaluate programs themselves “"or by contract, or or by contract, or
(to) require a Government agency to do so and furnish a report thereon to the (to) require a Government agency to do so and furnish a report thereon to the
Congress.Congress.”
"
Directed the Comptroller General to Directed the Comptroller General to “"review and evaluate the results ofreview and evaluate the results of
Government programs and activitiesGovernment programs and activities”" on his or her own initiative or at the on his or her own initiative or at the
request of either request of eitherHousehouse or any standing or joint committee and to assist or any standing or joint committee and to assist
committees in analyzing and assessing program reviews or evaluation committees in analyzing and assessing program reviews or evaluation
studies. Authorized GAO to establish an Office of Program Review and studies. Authorized GAO to establish an Office of Program Review and
Evaluation to carry out these responsibilities.Evaluation to carry out these responsibilities.
Strengthened GAOStrengthened GAO’'s role in acquiring fiscal, budgetary, and program-related s role in acquiring fiscal, budgetary, and program-related
information.information.
Established
Established the House and Senate Budget Committees and House and Senate Budget Committees and the Congressional
Budget Office (CBO)CBO. The CBO director is authorized to . The CBO director is authorized to “"secure secure
information, data, estimates, and statistics directly from the various information, data, estimates, and statistics directly from the various
departments, agencies, and establishmentsdepartments, agencies, and establishments”" of the government. of the government.
Required any House or Senate legislative committee report on a public bill or Required any House or Senate legislative committee report on a public bill or
resolution to include an analysis (prepared by CBO) providing an estimate resolution to include an analysis (prepared by CBO) providing an estimate
and comparison of costs that would be incurred in carrying out the bill during and comparison of costs that would be incurred in carrying out the bill during
the next and following four fiscal years in which it would be effective.the next and following four fiscal years in which it would be effective.
Public Debt Limit Increase of 2010 (P.L. 111-139(P.L. 111-139):
)Required the Comptroller General to conduct routine investigations to Required the Comptroller General to conduct routine investigations to
identify programs, agencies, offices, and initiatives with duplicative goals identify programs, agencies, offices, and initiatives with duplicative goals
and activities within departments and government-wide and report annually and activities within departments and government-wide and report annually
to Congress on the findings, including the cost of such duplication.to Congress on the findings, including the cost of such duplication.
GAO Access and Oversight Act of 2017 (P.L. 115-3(P.L. 115-3):
)Authorized GAO to obtain federal agency records, including through civil Authorized GAO to obtain federal agency records, including through civil
actions, required to discharge GAOactions, required to discharge GAO’'s audit, evaluation, and investigative s audit, evaluation, and investigative
duties.
493 86 Stat. 771 (1972).
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duties.
Provided that no provision of the Social Security Act shall be construed to Provided that no provision of the Social Security Act shall be construed to
limit, amend, or supersede GAOlimit, amend, or supersede GAO’'s authority to obtain information or inspect s authority to obtain information or inspect
records about an agencyrecords about an agency’'s duties, powers, activities, organization, or s duties, powers, activities, organization, or
financial transactions.financial transactions.
Required agency statements
Required each agency statement on actions taken or planned in response to GAO on actions taken or planned in response to GAO
recommendations to be submitted to the congressional recommendations to be submitted to the congressional committeescommittee(s) with with
jurisdiction over the pertinent agency program or activity.jurisdiction over the pertinent agency program or activity.
Indirect Expansions of Congress’'s Oversight Capabilities
Separate from expanding Separate from expandingCongress’sits own authority and resources directly, Congress has own authority and resources directly, Congress has
strengthened its oversight capabilities indirectly by establishingestablished ongoing processes and ongoing processes and
institutions through which other actors may track developments and identify issues that merit institutions through which other actors may track developments and identify issues that merit
Congress’Congress's attention. s attention. SomeAs discussed earlier in this report, some scholars have characterized this as scholars have characterized this as “"fire alarmfire alarm”" oversight. oversight.494505 From From
this perspective, it is possible thatthis perspective, it is possible that
the bureaucracy might not pursue Congressthe bureaucracy might not pursue Congress’'s goals. But citizens and interest groups can be s goals. But citizens and interest groups can be
counted on to sound an alarm in most cases in which the bureaucracy has arguably violated counted on to sound an alarm in most cases in which the bureaucracy has arguably violated
Congress’Congress's goals. Then Congress can intervene to rectify the violation. Congress has not s goals. Then Congress can intervene to rectify the violation. Congress has not
necessarily relinquished legislative responsibility to anyone else. It has just found a more necessarily relinquished legislative responsibility to anyone else. It has just found a more
efficient way to legislate.efficient way to legislate.495
506
Congress has done this, for instance, by establishing study commissions to review and evaluate Congress has done this, for instance, by establishing study commissions to review and evaluate
programs, policies, and operations of the government. In addition, Congress has created various programs, policies, and operations of the government. In addition, Congress has created various
mechanisms, structures, and proceduresmechanisms within the executive branch that improve the ability within the executive branch that improve the ability of
the public and interested stakeholders to monitor activities of the President and executive to monitor activities of the President and executive
agencies and, at the same time, provide additional information and oversight-related analyses to agencies and, at the same time, provide additional information and oversight-related analyses to
Congress. In some cases, Congress. In some cases,Congress has created oversight processes within the executive branch in
which actors in agencies are statutorily required to exercise oversight over certain activities and agencies are statutorily required to exercise oversight over certain activities and
make information known to Congress and the public. These statutory provisions include, but are
not limited to, the following:496
Chief Financial Officers (CFO) Act of 1990, as Amended (P.L. 101-576, 31
U.S.C. §§901 et seq.):
Created two new posts within OMB along with a new position of chief
financial officer in each of the larger executive agencies, including all
Cabinet departments.
Provided for improvements in agency systems of accounting, financial
management, and internal controls to ensure reliable financial information
and to deter fraud as well as the waste and abuse of government resources.
Required production of complete, reliable, timely, and consistent financial
information for use by both the executive branch and Congress in the
financing, management, and evaluation of federal programs.
494 See McCubbins and Schwartz, “Congressional Oversight Overlooked,” p. 175.
495 McCubbins and Schwartz, “Congressional Oversight Overlooked,” p. [?].
496 Many of these statutes are discussed in CRS Report RL30795, General Management Laws: A Compendium, by
Clinton T. Brass et al. (available to congressional clients upon request). For an analysis of themes that cut across these
statutes, see CRS Report RL32388, General Management Laws: Major Themes and Management Policy Options, by
Clinton T. Brass. See also Brass and Ginsberg, “Congress Evolving in the Face of Complexity.”
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make information known to Congress and the public. Some of these statutory provisions are discussed below.507
Federal Advisory Committee Act (P.L. 92-463, 5 U.S.C. Ch. 10)508Created two new posts within OMB along with a new position of chief financial officer in each of the larger executive agencies, including all Cabinet departments.
Provided for improvements in agency systems of accounting, financial management, and internal controls to ensure reliable financial information and to deter fraud as well as the waste and abuse of government resources.
Required production of complete, reliable, timely, and consistent financial information for use by both the executive branch and Congress in the financing, management, and evaluation of federal programs.
Required most executive branch entities to submit audited financial Required most executive branch entities to submit audited financial
statements annually.statements annually.
Government Performance and Results Act (GPRA) (P.L. 103-62P.L. 103-62), as
Amended by the GPRA Modernization Act (GPRAMA) (P.L. 111-352P.L. 111-352, 31
U.S.C. §1101 note)
Requires agencies to Requires agencies to create strategic plans that specify general goals and specify general goals and
objectives for agenciesobjectives based on based on thetheir basic missions and underlying statutory basic missions and underlying statutory
or other authorityor other authority of an agency. These plans, initially required in 1997, are to . These plans, initially required in 1997, are to
be developed in consultation with relevant congressional offices and with be developed in consultation with relevant congressional offices and with
information from information from“stakeholders”"stakeholders" and then submitted to Congress. Agencies and then submitted to Congress. Agencies
may update plans if circumstances change.may update plans if circumstances change.
Directs agencies, based on their strategic plans, to set annual performance Directs agencies, based on their strategic plans, to set annual performance
goals and to measure the results of their programs in achieving these goals. goals and to measure the results of their programs in achieving these goals.
The annual plans outlining these goals are also available to Congress.The annual plans outlining these goals are also available to Congress.
Requires each agency to issue yearly follow-up reports assessing the Requires each agency to issue yearly follow-up reports assessing the
implementation of its annual plan. These are required to be submitted after implementation of its annual plan. These are required to be submitted after
the end of the fiscal year.the end of the fiscal year.
Requires the executive branch to develop a federal government performance Requires the executive branch to develop a federal government performance
plan and priority goals under the direction of OMB. These are to include plan and priority goals under the direction of OMB. These are to include
“"outcome-oriented goals covering a limited number of crosscutting policy outcome-oriented goals covering a limited number of crosscutting policy
areas; and goals for management improvements needed across the Federal areas; and goals for management improvements needed across the Federal
Government.”
Congressional Review Act (P.L. 104-121)
Established a special set of parliamentary procedures by which Congress can
consider legislation to disapprove federal rules and regulations.497 Congress
has legislative authority over federal regulations, which agencies issue
pursuant to statutory delegations of authority. The act provided tools
allowing Congress to expedite that legislative authority.
Required any agency promulgating a covered rule to report to each house of
Congress and the Comptroller General containing specific information about
the rule before it can go into effect.
Established that rules designated by OMB as “major” may normally not go
into effect until at least 60 days after submission, while non-major rules may
become effective “as otherwise allowed in law,” usually 30 days after
publication in the Federal Register.
Subjected all covered rules to fast-track disapproval by passage of a joint
resolution, even if they have already gone into effect, for a period of at least
60 days. Upon enactment of such a joint resolution, no new rule that is
“substantially the same” as the disapproved rule may be issued unless it is
specifically authorized by a law enacted subsequent to the disapproval of the
original rule.
Established that “[n]o determination, finding, action, or omission” under the
act shall be subject to judicial review.
497 For a detailed discussion, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked
Questions, by Maeve P. Carey and Christopher M. Davis; and CRS In Focus IF10023, The Congressional Review Act
(CRA), by Maeve P. Carey and Christopher M. Davis.
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Government."Paperwork Reduction Act of 1995 (P.L. 104-13P.L. 104-13, 44 U.S.C. ch. 35)
Authorized OMBAuthorized OMB’'s Office of Information and Regulatory Affairs (OIRA) to s Office of Information and Regulatory Affairs (OIRA) to
develop and administer uniform information policies to ensure the
availability and accuracy of agency data collection and provided for
congressional oversight including the requirement for Senate confirmation of
OIRA’s administrator.
Federal Managers’ Financial Integrity Act (FMFIA) of 1982 (P.L. 97-255)
Strengthened internal management and financial controls, accounting
systems, and financial reports. The law required the internal accounting
systems to be consistent with standards prescribed by the Comptroller
General, including a requirement that all assets be safeguarded against waste,
fraud, loss, unauthorized use, and misappropriation.498
Provided for ongoing evaluations of the internal control and accounting
systems that protect federal programs against waste, fraud, abuse, and
mismanagement.
Mandated that the head of each agency report annually to the President and
Congress on the condition of these systems and on agency actions to correct
any material weakness that the reports identify.
FMFIA is also related to the CFO Act (P.L. 101-576), which calls upon the
director of OMB to submit a financial management status report to
appropriate congressional committees.499 Part of this report is to be a
summary of reports on internal accounting and administrative control
systems as required by FMFIA.
Clinger-Cohen Act of 1996 (P.L. 104-106, 40 U.S.C. §§11101 et seq.)
develop and administer uniform government-wide information management policies, including those that (1) reduce the burden imposed on the public by agency information collections; (2) ensure the dissemination of agency information to the public and the public's access to such information, including through comprehensive data inventories and a federal data catalogue; (3) coordinate the activities of the federal statistical system; (4) concern compliance with records management requirements; (4) provide for the privacy, confidentiality, security, disclosure, and sharing of agency information; and (5) implement information technology activities and functions. While many commentaries on the Paperwork Reduction Act focus on its requirements for information collections, including OIRA's role in reviewing and approving such agency collections, the scope of the act is larger than information collections alone.511 The act requires Senate confirmation of OIRA's administrator.512Clinger-Cohen Act of 1996 (P.L. 104-106, 40 U.S.C. §§11101 et seq.)Changed how agencies invest in information technology by giving more Changed how agencies invest in information technology by giving more
responsibility to individual agencies and revoking the primary role that responsibility to individual agencies and revoking the primary role that the
General Services Administration (GSA)GSA had played previously. had played previously.
Established the position of chief information officer in federal agencies to Established the position of chief information officer in federal agencies to
provide relevant advice to agency heads.provide relevant advice to agency heads.
Federal Advisory CommitteeCongressional Review Act (P.L. 92-463104-121, 5 U.S.C. ch. 8), 5 U.S.C. Appendix)500
Established the first requirements for the management and oversight of
federal advisory committees to ensure impartial and relevant expertise. As
required by the act, GSA administers and provides management guidelines
for advisory committees.
GSA maintains a specialized, federal government, interagency, information-
sharing database that collects data on federal advisory committee activities
government-wide and is publicly available on the web at
http://www.facadatabase.gov.
498 For an expanded introduction to federal financial management, see CRS In Focus IF11610, Federal Financial and
Budgetary Reporting: A Primer, by Dominick A. Fiorentino; and CRS In Focus IF11620, The Office of Federal
Financial Management: An Overview, by Dominick A. Fiorentino.
499 See CRS Insight IN11495, The Chief Financial Officers (CFO) Act of 1990: 30th Anniversary and Potential Issues
for Congress, by Dominick A. Fiorentino and Clinton T. Brass.
500 For more information, see CRS Report R44253, Federal Advisory Committees: An Introduction and Overview, by
Meghan M. Stuessy.
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Federal Funding Accountability and Transparency Act (FFATA), as Amended
, as Amended by the Digital Accountability and Transparency (DATA) Act (P.L. 109-282, ,
31 U.S.C. §6101 note)
Under FFATA, OMB establishedEstablished USAspending.gov USAspending.gov, a searchable, free, and a searchable, free, and
public website public website that enables anyone to go online to findmanaged by OMB that contains information about information about
most federal grants, loans, and contracts.most federal grants, loans, and contracts.501
Subsequently, Congress significantly amended Subsequently, Congress significantly amended FFATAthe act with passage of with passage of the
DATA Act (P.L. 113-101). The amended versionP.L. 113-101). The amended version of FFATA directed the directed the
Secretary of the Treasury and director of OMB to establish government-wide Secretary of the Treasury and director of OMB to establish government-wide
financial data standards and required online reporting of extensive data on financial data standards and required online reporting of extensive data on
budget execution.budget execution.
Statutory Offices of Inspector General
Congress created statutory inspectors general (IGs) to combat waste, fraud, and abuse within Congress created statutory inspectors general (IGs) to combat waste, fraud, and abuse within
designated federal departments and agencies.designated federal departments and agencies.502514 To execute their missions, offices of inspector To execute their missions, offices of inspector
general (OIGs) conduct and publish audits and investigations, among other duties. By law, OIGs general (OIGs) conduct and publish audits and investigations, among other duties. By law, OIGs
are nonpartisan, independent offices, and are nonpartisan, independent offices, and7574 statutory OIGs currently exist in more than 70 statutory OIGs currently exist in more than 70
federal entities, including departments, agencies, boards, commissions, and government-federal entities, including departments, agencies, boards, commissions, and government-
sponsored enterprises in both the legislative and executive branches.sponsored enterprises in both the legislative and executive branches.503515 While IGs are organized While IGs are organized
within agencies, they have explicit duties to report directly to Congress on their work and within agencies, they have explicit duties to report directly to Congress on their work and
frequently conduct audits and investigations requested by Members or committees or required by frequently conduct audits and investigations requested by Members or committees or required by
statute.statute.
Inspector General Act of 1978
The Inspector General Act of 1978, as amended (IG Act)The Inspector General Act of 1978, as amended (IG Act)504516 governs the majority of IGs. The IG governs the majority of IGs. The IG
Act originally created OIGs in 12 Act originally created OIGs in 12“"federal establishmentsfederal establishments”" and provided the blueprint for IG and provided the blueprint for IG
authorities and responsibilities.authorities and responsibilities.505517 The IG Act has been substantially amended The IG Act has been substantially amended threefour times since its times since its
enactment, as described belowenactment, as described below.
4. :1. The Inspector General Act Amendments of 1988 (P.L. 100-504) expanded the (P.L. 100-504) expanded the
number of OIGs in federal establishments and created a new set of IGs in number of OIGs in federal establishments and created a new set of IGs in
“"designated federal entitiesdesignated federal entities”" (DFEs). The act also established separate (DFEs). The act also established separate
501 Two federal government websites resulted from the enactment of FFATA. USAspending.gov, at
http://www.usaspending.gov/, includes spending data for contracts, grants, direct payments, insurance, and
loans/guarantees. The FFATA Search Portal, at http://www.ffata.org/ffata/, contains information about contracts and
grants.
502 For more information on statutory IGs, see CRS Report R45450, Statutory Inspectors General in the Federal
Government: A Primer, by Ben Wilhelm.
503 Three other IG posts are recognized in public law: for the Departments of the Air Force (10 U.S.C. §8020), Army
(10 U.S.C. §3020), and Navy (10 U.S.C. §5020). This report does not examine these offices because they have a
significantly different history, set of authorities, operational structure, and degree of independence compared to other
statutory IGs.
504 5 U.S.C. Appendix (IG Act).
505 P.L. 95-452. Two IGs whose origins pre-dated the IG Act served as models: in 1976, in the Department of Health,
Education, and Welfare—now Health and Human Services (P.L. 94-505)—and in 1977, in the then-new Department of
Energy (P.L. 95-91). The IG Act establishes OIGs in many federal agencies and defines the IG as the head of each of
these offices. The act assigns to the IG specific duties and authorities, including the authority “to select, appoint, and
employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the
Office.” See 5 U.S.C. Appendix (IG Act) §6(a)(7).
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appropriations accounts for IGs in federal establishments and added to the annual appropriations accounts for IGs in federal establishments and added to the annual
reporting obligations of all IGs and agency heads.reporting obligations of all IGs and agency heads.
5.
2. The Inspector General Reform Act of 2008 (P.L. 110-409) established a new (P.L. 110-409) established a new
Council of the Inspectors General for Integrity and Efficiency (CIGIE); Council of the Inspectors General for Integrity and Efficiency (CIGIE);
established salary, bonus, and award provisions; added budget protections for established salary, bonus, and award provisions; added budget protections for
OIGs; required OIG websites to include all completed audits and reports; and OIGs; required OIG websites to include all completed audits and reports; and
amended IG removal requirements and reporting obligations.amended IG removal requirements and reporting obligations.
6.
3. The Inspector General Empowerment Act of 2016 (P.L. 114-317)(P.L. 114-317) aimed to aimed to
enhance IGsenhance IGs’' access to agency records; vested CIGIE with new coordination access to agency records; vested CIGIE with new coordination
responsibilities regarding audits and investigations that span multiple IG responsibilities regarding audits and investigations that span multiple IG
jurisdictions; amended the membership and investigatory procedures of CIGIEjurisdictions; amended the membership and investigatory procedures of CIGIE’s
's Integrity Committee; and required IGs to submit documents containing Integrity Committee; and required IGs to submit documents containing
recommendations for corrective action to affiliated agency heads, congressional recommendations for corrective action to affiliated agency heads, congressional
committees of jurisdiction, and others upon request.committees of jurisdiction, and others upon request.
Purpose and Role
Pursuant to the IG Act, the principal purposes of IGs include:
4. The Securing Inspector General Independence Act of 2022 and the Integrity Committee Transparency Act of 2022 (Title LII of P.L. 117-263, the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023) sought to increase the independence of the IG community by placing new limits on the removal of IGs, the management of vacancies, and the selection of acting IGs. The act increased the information that the President and heads of DFEs must provide to Congress prior to removal of an IG. Purpose and Role
conducting and supervising audits and investigations related to agency
programs and operations;programs and operations;
providing leadership and coordination and recommending policies for
activities designed
recommending policies to promote the economy, efficiency, and effectiveness and to promote the economy, efficiency, and effectiveness and
the prevention and detection of fraud and abuse in such programs and the prevention and detection of fraud and abuse in such programs and
operations; andoperations; and
keeping the agency head and Congress fully and currently informed about keeping the agency head and Congress fully and currently informed about
problems and deficiencies relating to such programs and the necessity for and
progress of corrective action.506
problems related to such programs and corrective action.518To carry out their purposes, the IG Act grants covered IGs broad authority to:To carry out their purposes, the IG Act grants covered IGs broad authority to:
conduct audits and investigations;conduct audits and investigations;
access directly the records and information related to agency programs and access directly the records and information related to agency programs and
operations;operations;
request assistance from other federal, state, and local government agencies;request assistance from other federal, state, and local government agencies;
subpoena information and documents and administer oaths when conducting subpoena information and documents and administer oaths when conducting
interviews;interviews;
hire staff and manage their own resources;hire staff and manage their own resources;
receive and respond to complaints from agency employees, whose identities receive and respond to complaints from agency employees, whose identities
are to be protected;are to be protected;
appoint Whistleblower Protection Coordinators to educate staff on options appoint Whistleblower Protection Coordinators to educate staff on options
and protections for whistleblowers;507 and
506 IG Act, §2. IGs not covered by the IG Act generally have similar or identical purposes, although some IG missions
may vary. For more information see CRS Report R45450, Statutory Inspectors General in the Federal Government: A
Primer, by Ben Wilhelm.
507 IG Act, §3(d)(1)(C).
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and protections for whistleblowers519; and
implement the cash incentive award program in their agencies for employee implement the cash incentive award program in their agencies for employee
disclosures of waste, fraud, and abuse.disclosures of waste, fraud, and abuse.508
520 Notwithstanding these authorities, IGs are not authorized to take corrective action themselves. Notwithstanding these authorities, IGs are not authorized to take corrective action themselves.
Moreover, the IG Act prohibits the transfer of Moreover, the IG Act prohibits the transfer of“"program operating responsibilitiesprogram operating responsibilities”" to an IG. to an IG.509
521 Types and Categories
Currently, Currently, 7473 statutory IGs exist in the federal government. statutory IGs exist in the federal government.510522 Of these IGs, the IG Act authorized Of these IGs, the IG Act authorized
64, and individual statutes outside the IG Act govern the remaining 64, and individual statutes outside the IG Act govern the remaining10nine. Statutory IGs may be . Statutory IGs may be
grouped into four different types based on authorizing statute, appointment method, affiliated grouped into four different types based on authorizing statute, appointment method, affiliated
federal entity and the branch of government in which it is located, oversight jurisdiction, and federal entity and the branch of government in which it is located, oversight jurisdiction, and
oversight duration.oversight duration.511523 These types are These types are Establishmentestablishment IGs, who are nominated by the President and IGs, who are nominated by the President and
appointed with the advice and consent of the Senate; appointed with the advice and consent of the Senate;Designated Federal EntityDFE IGs, who are IGs, who are
appointed by agency leaders; appointed by agency leaders;Specialspecial IGs, who are appointed to conduct oversight of IGs, who are appointed to conduct oversight of a particular particular
topictopics; and other permanent IGs whose authority comes from statutes other than the IG Act.; and other permanent IGs whose authority comes from statutes other than the IG Act.512
524 Authorities and Responsibilities
As mentioned previously, the IG Act vests establishment IGs and DFE IGs with many authorities As mentioned previously, the IG Act vests establishment IGs and DFE IGs with many authorities
and responsibilities to carry out their respective missions. Several of these authorities and and responsibilities to carry out their respective missions. Several of these authorities and
responsibilities are described in more detail below.responsibilities are described in more detail below.513
525 Oversight Jurisdiction
Typically, the jurisdiction of an IG includes only the programs, operations, and activities of a Typically, the jurisdiction of an IG includes only the programs, operations, and activities of a
single affiliated entity and its components. In some cases, one IG operates for multiple federal single affiliated entity and its components. In some cases, one IG operates for multiple federal
entities.entities.514526 For example, the IG of the Board of Governors for the Federal Reserve System was For example, the IG of the Board of Governors for the Federal Reserve System was
given jurisdiction over the Consumer Financial Protection Bureau, which the Dodd-Frank Wall
508 5 U.S.C. §4512. IGs operating under their own statutory authorities may have similar or identical authorities to those
covered by the IG Act, although some IGs may have additional authorities or be prohibited from exercising the
authorities listed in this report.
509 IG Act, §§8G(b), 9(a)(2). One rationale for this proscription is that it would be difficult, if not impossible, for IGs to
audit or investigate programs and operations impartially and objectively if they were directly involved in carrying them
out.
510 Some now-defunct statutory IGs have been abolished or transferred either when their parent agencies met the same
fate or when superseded by another OIG. For example, the OIG in the Office of the Director of National Intelligence
(DNI)—which operated under the full discretionary authority of the DNI (P.L. 108-458)—was supplanted by the IG of
the Intelligence Community. The Intelligence Authorization Act of 2010 (P.L. 111-259, §405) established the new
Intelligence Community IG post with substantially broader authority, jurisdiction, and independence than the previous
IG.
511 IGs can be grouped in a variety of ways based on several criteria. IGs could be categorized into types other than
those listed here based on a different set of criteria.
512 See CRS Report R45450, Statutory Inspectors General in the Federal Government: A Primer, by Ben Wilhelm.
513 In general, the authorities and responsibilities of IGs operating outside of the IG Act are beyond the scope of this
report and can differ from those governed by the act. In certain cases, such differences are significant. In addition,
unique statutory authorities and responsibilities for some IGs covered by the IG Act are also out of scope. Many IGs
covered by the IG Act have been provided additional, unique responsibilities and powers on a selective basis.
514 IG Act, §§2, 8G(g)(1), 12(2). For more information on IG oversight jurisdiction, see CRS Report R43814, Federal
Inspectors General: History, Characteristics, and Recent Congressional Actions, by Michael Greene and Ben Wilhelm.
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given jurisdiction over the Consumer Financial Protection Bureau, which the Dodd-Frank Wall Street Reform and Consumer Protection Street Reform and Consumer Protection Act515Act527 established as an established as an “"independent bureauindependent bureau”" in the in the
Federal Reserve System. In other cases, multiple IGs operate for a single federal entity. For Federal Reserve System. In other cases, multiple IGs operate for a single federal entity. For
example, two statutory IGs operate for the Department of the Treasury—one IG to oversee example, two statutory IGs operate for the Department of the Treasury—one IG to oversee
department-wide programs and operations and one IG (department-wide programs and operations and one IG (the U.S. Treasury Inspector General for Tax U.S. Treasury Inspector General for Tax
Administration) to oversee the programs and operations of the Internal Revenue Service.Administration) to oversee the programs and operations of the Internal Revenue Service.
Reporting Requirements
IGs have various reporting obligations to Congress, the Attorney General, agency IGs have various reporting obligations to Congress, the Attorney General, agencyhead(s)heads, and the , and the
public. One such obligation is to report suspected violations of federal criminal law directly and public. One such obligation is to report suspected violations of federal criminal law directly and
expeditiously to the Attorney General.expeditiously to the Attorney General.516528 IGs are also required to report semiannually about their IGs are also required to report semiannually about their
activities, findings, and recommendations to the agency heads, who must submit the IGsactivities, findings, and recommendations to the agency heads, who must submit the IGs’' reports reports
to Congress, unaltered, within 30 days.to Congress, unaltered, within 30 days.517529 These semiannual reports are to be made available to These semiannual reports are to be made available to
the public within 60 days of their submission to Congress.the public within 60 days of their submission to Congress.518530 IGs are also to report IGs are also to report “"particularly particularly
serious or flagrant problemsserious or flagrant problems”" immediately to the agency heads, who must submit the IG reports to immediately to the agency heads, who must submit the IG reports to
Congress within seven days.Congress within seven days.519531 The majority of statutory IGs have also elected to participate in The majority of statutory IGs have also elected to participate in
Oversight.gov, a central repository for OIG reports that was established in 2017.Oversight.gov, a central repository for OIG reports that was established in 2017.520
532 FindingInspector GeneralIG Materials Online
The Council of the Inspectors General on Integrity and Efficiency (CIGIE)
CIGIE manages two manages two webpageswebsites that provide a that provide a
variety of information on the activities of variety of information on the activities ofIG offices and the operations of the IG community.
the IG community:Oversight.gov includes a searchable database of published IG reports going back to at least 2015 for most includes a searchable database of published IG reports going back to at least 2015 for most
IG offices. In addition, Oversight.gov includes additional information on the IG community, including
IG offices as well as recommendation tracking, analytics related to IG productivity, and regular updates on IG vacancies.recommendation tracking, analytics related to IG productivity, and regular updates on IG vacancies.
IGNet.gov includes information on IG community activities. Among other things, IGNet.gov
IGNet.gov includes general includes general
information on the IG Act and IG community; a number of manuals, guides, and standards for investigations information on the IG Act and IG community; a number of manuals, guides, and standards for investigations
and audits; and a directory of contact information, including websites, for all IG offices.and audits; and a directory of contact information, including websites, for all IG offices.
Independence
Under the IG Act, IGs are to be selected without regard to political affiliation and solely on the Under the IG Act, IGs are to be selected without regard to political affiliation and solely on the
basis of integrity and demonstrated ability in accounting, auditing, financial and management basis of integrity and demonstrated ability in accounting, auditing, financial and management
analysis, law, public administration, or investigations.analysis, law, public administration, or investigations.521533 IGs have broad authorities and IGs have broad authorities and
515 P.L. 111-203, §§1011, 1081(1)-(2).
516 IG Act, §4(d).
517 IG Act, §5(a), (b). The agency head may include additional comments when the IG submits the semiannual report to
Congress.
518 IG Act, §5(c).
519 IG Act, §5(d). This is commonly referred to as the “Seven Day Letter.” More broadly, IGs are to keep the agency
head and Congress “fully and currently informed” by means of the required reports and “otherwise.” See IG Act,
§4(a)(5). Again, the agency head may not alter the IG’s report but may attach additional comments.
520 Establishment of, and participation in, Oversight.gov is not statutorily required. A list of participating OIGs is
available at CIGIE, “About Oversight.gov,” https://oversight.gov/about. For more information on Oversight.gov, see
CRS Insight IN10752, Inspector General Community Launches Oversight.gov to Increase Accessibility to Reports, by
Ben Wilhelm.
521 IG Act, §§3(a), 8G(c).
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protections to support and reinforce their independence, such as the authority to hire their own protections to support and reinforce their independence, such as the authority to hire their own
staff and access all records related to the programs and operations of their affiliated entities.staff and access all records related to the programs and operations of their affiliated entities.522
534
IGs also determine the priorities and projects for their offices without outside direction in most IGs also determine the priorities and projects for their offices without outside direction in most
cases. An IG may decide to conduct a review requested by the agency head, the President, cases. An IG may decide to conduct a review requested by the agency head, the President,
Congress, agency employees, or others. They are not obligated to do so, however, unless required Congress, agency employees, or others. They are not obligated to do so, however, unless required
by law.by law.523535 IGs serve under the IGs serve under the “"general supervisiongeneral supervision”" of the agency head, reporting exclusively to of the agency head, reporting exclusively to
the head or to the officer next in rank if such authority is delegated.the head or to the officer next in rank if such authority is delegated.524536 Additionally Additionally, all all
establishment and DFE IGs formulate their own budget estimates, which are provided to establishment and DFE IGs formulate their own budget estimates, which are provided to
Congress as part of the PresidentCongress as part of the President’'s budget,s budget,525537 and establishment IGs receive their appropriations and establishment IGs receive their appropriations
in separate budget accounts from the agencies in which they operate.in separate budget accounts from the agencies in which they operate.526
538 Appointment and Removal Methods
Appointment and removal procedures vary among statutory IGs. Establishment IGs are appointed Appointment and removal procedures vary among statutory IGs. Establishment IGs are appointed
and removable by the President. and removable by the President.When exercising removal authority, the President must
communicate the reasonsThe IG Act requires the President, when exercising removal authority, to communicate the substantive rationale for the removal to Congress in writing 30 days prior to to Congress in writing 30 days prior to the scheduled removal date.527 A
its effective date.539 A DFE IG, by contrast, is appointed and can be removed by the agency head, who must also notify DFE IG, by contrast, is appointed and can be removed by the agency head, who must also notify
Congress in writingCongress 30 days in advance when exercising the removal authority. 30 days in advance when exercising the removal authority.528540 In cases where In cases where
a board or commission is considered the DFE head, removal of a DFE IG requires the written a board or commission is considered the DFE head, removal of a DFE IG requires the written
concurrence of a two-thirds majority of the board or commission members.concurrence of a two-thirds majority of the board or commission members.529541 The U.S. Postal The U.S. Postal
Service Service(USPS) IG is the only IG IG is the only IG thatwho can be removed only can be removed only “"for causefor cause,” "—and then only by the and then only by the
written concurrence of at least seven of the nine presidentially appointed governors of USPS.530
Presidential Removal of IGs
The President has been authorized to remove presidentially appointed IGs since the creation of the IG system in
1978 (IG Act, P.L. 95-452). Prior to 2008, there were no statutory conditions on the President’s exercise of this
authority. The Inspector General Reform Act of 2008 (P.L. 110-409) required the President to provide notice to
522 For more information on IG authorities, see IG Act, §§4, 6.
523 The heads of eight agencies—the Departments of Defense, Homeland Security, Justice, and the Treasury plus the
USPS, Federal Reserve Board, Central Intelligence Agency, and the Office of the DNI—are explicitly authorized to
prevent or halt the IG from initiating, carrying out, or completing an audit or investigation or issuing a subpoena, and
then only for certain reasons: to preserve national security interests or to protect ongoing criminal investigations,
among a few others. See IG Act, §§8, 8D(a), 8E(a), 8G(f), 8G(g)(3), 8G(f)(3)(A),8I(a); 50 U.S.C. §§3033(f)(1),
3517(b)(3). In addition, the Secretary of Energy may prevent the Department of Energy IG from accessing certain
information related to the department’s nuclear activities. See IG Act, §8N. When exercising this power, the governing
statute generally provides for congressional notification of the exercise of such authority.
524 IG Act, §§3(a), 8G(d).
525 IG Act, §§6(g), 8G(g)(1).
526 31 U.S.C. §1105(a)(25).
527 IG Act, §3(a)-(b). This advance notice allows the IG, Congress, or other interested parties to examine, and possibly
object to, the planned removal.
528 IG Act, §8G(c) and (e). Differences arise over who is considered the “head of the agency” in a DFE. The agency
head may be (1) an individual serving as the administrator or director or as spelled out in law (e.g., the Archivist of the
United States in the National Archives and Records Administration); (2) the chairperson of a board or commission, a
full board, or council as specified in law (e.g., the National Council on the Arts in the National Endowment for the
Arts); or (3) a certain supermajority of a governing board. See IG Act, §§8G(f)(1)-(2) and (4)). For USPS, for instance,
the USPS governors appoint the IG.
529 IG Act, §8G(e)(1).
530 39 U.S.C. §202(e)(3).
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Congress 30 days prior to the removal of an IG. While this provision gives Congress early notice and an
opportunity to respond to the removal of an IG, it does not create any special mechanism for Congress to
overturn the President’s decision. While IG removal has been an issue in the past (for instance in 2009 when
President Obama removed the IG for the Corporation for National and Community Service, Gerald Walpin), it
received renewed attention in spring 2020 when President Trump removed the IGs for the Intelligence
Community and Department of State and replaced the acting IGs for the Departments of Defense and
Transportation with other officials.
Sources: CRS Legal Sidebar LSB10476, Presidential Removal of IGs Under the Inspector General Act, by Todd Garvey;
and CRS In Focus IF11546, Removal of Inspectors General: Rules, Practice, and Considerations for Congress, by Ben
Wilhelm.
Coordination and Oversight
written concurrence of at least seven of the nine presidentially appointed postal governors.542 Coordination and Oversight Coordination among the IGs and oversight of their actions exists through several channels, Coordination among the IGs and oversight of their actions exists through several channels,
including interagency bodies created by public law or administrative directiveincluding interagency bodies created by public law or administrative directive:531
543:CIGIE. CIGIE is the primary coordinating body for statutory IGs.CIGIE is the primary coordinating body for statutory IGs.532544 Among Among
other things, CIGIE is intended to aid in coordination among IGs and other things, CIGIE is intended to aid in coordination among IGs and
maintain programs and resources to train and professionalize OIG maintain programs and resources to train and professionalize OIG
personnel.personnel.533545 CIGIE includes all statutory IGs along with other relevant CIGIE includes all statutory IGs along with other relevant
officers, such as a representative of the FBI and the special counsel of the officers, such as a representative of the FBI and the special counsel of the
Office of Special Counsel.Office of Special Counsel.534546 The CIGIE chair is an IG chosen from within The CIGIE chair is an IG chosen from within
its ranks, while the executive chair is the OMB deputy director of its ranks, while the executive chair is the OMB deputy director of
management.management.535
547
CIGIE Integrity Committee. The CIGIE Integrity Committee—the sole The CIGIE Integrity Committee—the sole
statutory committee of the council—plays a lead role in addressing statutory committee of the council—plays a lead role in addressing
allegations of IG wrongdoing. The committee receives, reviews, and refers allegations of IG wrongdoing. The committee receives, reviews, and refers
for investigation alleged misconduct by for investigation alleged misconduct bythean IG or OIG according to processes IG or OIG according to processes
and procedures detailed in the IG Act.and procedures detailed in the IG Act.536548 The committee is composed of six The committee is composed of six
members—four IGs on the full council, the FBI representative on the members—four IGs on the full council, the FBI representative on the
council, and the director of the Office of Government Ethics. The committee council, and the director of the Office of Government Ethics. The committee
chairperson is elected to a two-year term by the members of the chairperson is elected to a two-year term by the members of the
committee.committee.537
549
Other coordinative bodies. Other interagency mechanisms have been Other interagency mechanisms have been
created by law or administrative directive to assist coordination among IGs. created by law or administrative directive to assist coordination among IGs.
For example, Congress established a lead IG for overseas contingency For example, Congress established a lead IG for overseas contingency
operations—a formal role assigned to one of three IGs (Department of operations—a formal role assigned to one of three IGs (Department of
Defense, Department of State, and U.S. Agency for International Defense, Department of State, and U.S. Agency for International
DevelopmentDevelopment550) to coordinate comprehensive oversight of ) to coordinate comprehensive oversight ofprogramprograms and and
531 For more information of oversight of IGs, see CRS In Focus IF11869, An Introduction to Oversight of Offices of
Inspector General, by Ben Wilhelm.
532 IG Act, §11.
533 IG Act, §11(c)(E).
534 IG Act, §11(b)(1).
535 IG Act, §11(b)(2).
536 IG Act, §11(d).
537 IG Act, §11(d)(2).
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operations in support of covered overseas contingency operations.operations in support of covered overseas contingency operations.538551 Further, Further,
Congress established a Council of Inspectors General on Financial Oversight Congress established a Council of Inspectors General on Financial Oversight
to facilitate information sharing among them and develop ways to improve to facilitate information sharing among them and develop ways to improve
financial oversight.financial oversight.539 Organizations have also been administratively created
552 Agencies have also created organizations administratively to help coordinate IG activities and capabilities for selected policy issues, to help coordinate IG activities and capabilities for selected policy issues,
such as the Defense Council on Integrity and Efficiency and the Disaster such as the Defense Council on Integrity and Efficiency and the Disaster
Assistance Working Group.Assistance Working Group.540
553 The Pandemic Response Accountability Committee (PRAC)
Section 15010 of the CARES Act (P.L. 116-136) created the PRAC. The members of the PRAC are IGs Section 15010 of the CARES Act (P.L. 116-136) created the PRAC. The members of the PRAC are IGs working in
in agencies that agencies thatare playinghave played significant roles in the federal government significant roles in the federal government’s pandemic response's response to the COVID-19 pandemic. Congress tasked the . Congress tasked the
PRAC with three duties related to the federal PRAC with three duties related to the federalresponse to the COVID-19 pandemicpandemic response: promoting transparency, : promoting transparency,
conducting oversight, and supporting oversight being conducted by IGs across the federal government. The conducting oversight, and supporting oversight being conducted by IGs across the federal government. The
PRAC’PRAC's primary functions primary function, —the coordination of oversight activities related to the pandemicthe coordination of oversight activities related to the pandemic, —reflects Congressreflects Congress’'s view s view
of the complexity, scope, and importance of the federal response to COVID-19 and the value of having a single of the complexity, scope, and importance of the federal response to COVID-19 and the value of having a single
source for information on that response.source for information on that response.
Source: CRS Insight IN11343, The Pandemic Response Accountability Committee: Organization and Duties, by Ben
Wilhelm.
554 Oversight Information Sources and
Consultant Services
Consultative Services Congress calls upon a variety of sources for information and analysis to support its oversight Congress calls upon a variety of sources for information and analysis to support its oversight
activities. Legislative support agencies—CRS, CBO, and GAO—provide most of this assistance. activities. Legislative support agencies—CRS, CBO, and GAO—provide most of this assistance.
In addition, various support offices established in the House and Senate may have a role in In addition, various support offices established in the House and Senate may have a role in
oversight through the legal, legislative, administrative, financial, and ceremonial functions they oversight through the legal, legislative, administrative, financial, and ceremonial functions they
perform. Two of these—the Offices of Senate Legal Counsel and House General Counsel—are perform. Two of these—the Offices of Senate Legal Counsel and House General Counsel—are
highlighted below. A range of outside interest groups and research organizations also provide rich highlighted below. A range of outside interest groups and research organizations also provide rich
sources of information.sources of information.
Congressional Research Service
CRS541
CRS555 is the public policy research arm of Congress. Originally established as the Legislative is the public policy research arm of Congress. Originally established as the Legislative
Reference Service in 1914, CRS was renamed and given expanded research and analytic duties Reference Service in 1914, CRS was renamed and given expanded research and analytic duties
with the passage of the Legislative Reorganization Act of 1970.with the passage of the Legislative Reorganization Act of 1970.542
556
CRS analysts, CRS analysts, legislative attorneys, and information specialists provide nonpartisan, confidential analysis on attorneys, and information specialists provide nonpartisan, confidential analysis on
current and emerging issues of national policy. CRS works exclusively for Congress, providing
538 P.L. 112-239, §848; codified at IG Act, §8L.
539 P.L. 111-203, §989E; codified at IG Act, §11 note.
540 For more information on the Defense Council on Integrity and Efficiency, see Department of Defense OIG,
“Defense Council on Integrity and Efficiency,” http://www.dodig.mil/Resources/DCIE/; and Defense Council on
Integrity and Efficiency, Charter, January 16, 2003, https://media.defense.gov/2003/Jan/16/2001711908/-1/-1/1/
DCIE%20Charter%20-%20Final.pdf. For more information on the Disaster Assistance Working Group, see CIGIE,
“Mission: Disaster Assistance Working Group,” https://www.ignet.gov/content/disaster-assistance-working-group.
541 Published reports, seminars and training, and other resources and services provided by CRS are available at
https://www.crs.gov/.
542 P.L. 63-127, ch. 141, July 16, 1914; P.L. 79-601, ch. 753, Title II, §203, August 2, 1946, 60 Stat. 836; P.L. 91-510,
Title III, §321(a), October 26, 1970, 84 Stat. 1181; 2 U.S.C. §166.
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current and emerging issues of national policy. CRS works exclusively for Congress, providing the legislature with an independent source of information and assisting Congress in its ability to the legislature with an independent source of information and assisting Congress in its ability to
oversee the executive branch in a system characterized by separation of powers.oversee the executive branch in a system characterized by separation of powers.
In addition to serving the committees and party leaders of the House and Senate, CRS responds to In addition to serving the committees and party leaders of the House and Senate, CRS responds to
requests for assistance from all Members of both houses regardless of requests for assistance from all Members of both houses regardless oftheir party, length of party, length of
service, or political philosophy. CRS also assists congressional staff service, or political philosophy. CRS also assists congressional staff whether in Washington, DC, orin district and state offices.district and state offices.
CRS supports the House and Senate at all stages of the legislative process. Individual Members or CRS supports the House and Senate at all stages of the legislative process. Individual Members or
their staffs may request help from CRStheir staffs may request help from CRS in, for example, , for example,in learning about issueslearning about issues;, developing ideas developing ideas
for legislationfor legislation;, providing technical assistance during hearings and markups providing technical assistance during hearings and markups;, evaluating and evaluating and
comparing legislative proposalscomparing legislative proposals, made by the President, their colleagues, or private organizations;
understanding the effects of House and Senate rules on the legislative processunderstanding the effects of House and Senate rules on the legislative process;, and clarifying the and clarifying the
legal effects a bill may have. CRS also assists Members and staff legal effects a bill may have. CRS also assists Members and staffto plan and executein planning and executing oversight. oversight.
CRS support for congressional oversight activities take many forms. It includes confidential CRS support for congressional oversight activities take many forms. It includes confidential
consultations inconsultations in- person and by phone, video, and email. Other person and by phone, video, and email. Other examplesforms of support include analytical reports include analytical reports
and memorandaand memoranda;, customized customized training/trainings and briefings for officesbriefings for offices;, classes, seminars, classes, seminars, and podcasts;
podcasts, database searchesdatabase searches;, and other research products and services. Its analysts and other research products and services. Its analysts and attorneys also deliver expert also deliver expert
testimony before congressional committees.testimony before congressional committees.
Although CRS does not draft bills, resolutions, Although CRS does not draft bills, resolutions, andor amendments, CRS staff may support the staff amendments, CRS staff may support the staff
of Members and committees consulting with the professional drafting staff within each chamberof Members and committees consulting with the professional drafting staff within each chamber’s
's Office of the Legislative Counsel as they translate Office of the Legislative Counsel as they translatethe Member’sMembers' policy decisions into formal policy decisions into formal
legislative language. CRS is also prohibited from preparing products of a partisan nature or legislative language. CRS is also prohibited from preparing products of a partisan nature or
advocating advocating for bills or policies and bills or policies and from researching individual Members or living former Members of researching individual Members or living former Members of
Congress (other than holders of, or nominees to, federal appointive office). It also cannot Congress (other than holders of, or nominees to, federal appointive office). It also cannot
undertake casework or provide translation services, provide personal legal or medical advice, undertake casework or provide translation services, provide personal legal or medical advice,
undertake personal or academic research, provide clerical assistance, or conduct audits or field undertake personal or academic research, provide clerical assistance, or conduct audits or field
investigations.investigations.
In all of their work, CRS staff are governed by requirements for confidentiality, timeliness, In all of their work, CRS staff are governed by requirements for confidentiality, timeliness,
authoritativeness, objectivity, and nonpartisanship. CRS makes no legislative or other policy authoritativeness, objectivity, and nonpartisanship. CRS makes no legislative or other policy
recommendations to Congress. Its responsibility is to ensure that Members of the House and recommendations to Congress. Its responsibility is to ensure that Members of the House and
Senate have available the best possible information and analysis on which to base the policy Senate have available the best possible information and analysis on which to base the policy
decisions the American people have elected them to make.decisions the American people have elected them to make.
The Librarian of Congress appoints the director of CRS The Librarian of Congress appoints the director of CRS “"after consultation with the Joint after consultation with the Joint
Committee on the Library.Committee on the Library.”543
"557
Pursuant to the FY2018 Consolidated Appropriations Act, CRS launched a website to provide Pursuant to the FY2018 Consolidated Appropriations Act, CRS launched a website to provide
public access to CRS reports (https://public access to CRS reports (https://crsreportswww.congress.gov/.congress.gov/).544crs-products ).558 The confidentiality of The confidentiality of
congressional requests or responses (such as confidential memoranda) remains unchanged, and congressional requests or responses (such as confidential memoranda) remains unchanged, and
only the Members of Congress who received these confidential communications may release only the Members of Congress who received these confidential communications may release
them.them.
Congressional Budget Office
Since its founding in 1974,Since its founding in 1974,545559 CBO has provided an objective, impartial, and nonpartisan source CBO has provided an objective, impartial, and nonpartisan source
of budgetary and economic information to support the congressional budget process in the House of budgetary and economic information to support the congressional budget process in the House
543 2 U.S.C. §166.
544 P.L. 115-141; March 23, 2018; 2 U.S.C. §166a.
545 P.L. 93-344, July 12, 1974; 2 U.S.C. §§601-603.
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and Senate. Economists and policy analysts at CBO generate a variety of products in support of and Senate. Economists and policy analysts at CBO generate a variety of products in support of
Congress and the budget processCongress and the budget process, including dozens of reports and hundreds of cost estimates each
year.
.
CBO provides formal cost estimates of virtually every bill reported by congressional committeesCBO provides formal cost estimates of virtually every bill reported by congressional committees,
in addition to preliminary, informal estimates of legislative proposals at various stages of the in addition to preliminary, informal estimates of legislative proposals at various stages of the
legislative process. Additionally, CBO regularly prepares reports on the economic and budget legislative process. Additionally, CBO regularly prepares reports on the economic and budget
outlook, analysis of the Presidentoutlook, analysis of the President’'s budget proposals, scorekeeping reports, assessments of s budget proposals, scorekeeping reports, assessments of
unfunded mandates, and products and testimony related to other budgetary matters.unfunded mandates, and products and testimony related to other budgetary matters.546
560
information regarding the agencyinformation regarding the agency’'s assumptions and methodologies. All of CBOs assumptions and methodologies. All of CBO’'s productss products, —apart apart
from informal cost estimates for legislation being developed privately by Members of Congress from informal cost estimates for legislation being developed privately by Members of Congress
or their staffsor their staffs, —are available to Congress and the public on CBOare available to Congress and the public on CBO’'s website.s website.
The Speaker of the House of Representatives and the President pro tempore of the Senate jointly The Speaker of the House of Representatives and the President pro tempore of the Senate jointly
appoint the CBO director after considering recommendations from the two budget committees. appoint the CBO director after considering recommendations from the two budget committees.
The Congressional Budget and Impoundment Control Act of 1974 specifies that CBOThe Congressional Budget and Impoundment Control Act of 1974 specifies that CBO’'s director s director
is to be chosen without regard to political affiliation.is to be chosen without regard to political affiliation.
Government Accountability Office
The Government Accountability OfficeThe Government Accountability Office (GAO), formerly known as the General Accounting , formerly known as the General Accounting
Office, was established by the Budget and Accounting Act of 1921 as an independent auditor of Office, was established by the Budget and Accounting Act of 1921 as an independent auditor of
government governmentagencies547agencies562 and has statutory authority to gather information from and investigate and has statutory authority to gather information from and investigate
agencies.agencies.548 The GAO’563 GAO's mission is to support Congress in meeting its constitutional s mission is to support Congress in meeting its constitutional
responsibilities and to help improve the performance and ensure the accountability of the federal responsibilities and to help improve the performance and ensure the accountability of the federal
government.government.
GAO issues hundreds of reports, testimony statements, and legal opinions each year.GAO issues hundreds of reports, testimony statements, and legal opinions each year.549 GAO’s
564 GAO's reports typically support congressional oversight through focusing on:reports typically support congressional oversight through focusing on:
auditing agency operations to determine whether federal funds are being auditing agency operations to determine whether federal funds are being
spent efficiently and effectively;spent efficiently and effectively;
identifying opportunities to address duplication, fragmentation, overlap, identifying opportunities to address duplication, fragmentation, overlap,
waste, or inefficiencies in the use of public funds;waste, or inefficiencies in the use of public funds;
reporting on how well government programs and policies are meeting their reporting on how well government programs and policies are meeting their
objectives;objectives;
performing policy analyses and outlining options for congressional performing policy analyses and outlining options for congressional
consideration; andconsideration; and
investigating allegations of illegal and improper activities.investigating allegations of illegal and improper activities.
GAO’ GAO's objective is to produce high-quality reports, testimonies, briefings, and other products and s objective is to produce high-quality reports, testimonies, briefings, and other products and
services that are services that are "professional, objective, fact-based, nonpartisan, non-ideological, fair, and balanced.objective, fact-based, nonpartisan, non-ideological, fair, and balanced."565 The The
agency operates under strict professional standards, including Government Auditing Standardsagency operates under strict professional standards, including Government Auditing Standards
566 and a quality assurance framework. GAOand a quality assurance framework. GAO’'s products includes products include oral briefings, testimony, and written briefings, testimony, and written
reports. All non-classified reports are made available to the public through posting on GAOreports. All non-classified reports are made available to the public through posting on GAO’s
546 For a more detailed description of CBO products, see CBO, “Products,” https://www.cbo.gov/about/products.
547 P.L. 67-13, June 10, 1921; 31 U.S.C. §702. Renamed by P.L. 108-271, 118 Stat. 811.
548 31 U.S.C. §716.
549 GAO publications are available at https://www.gao.gov.
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's website. Report recommendations that remain to be addressed, including those that are website. Report recommendations that remain to be addressed, including those that are a priority,
priorities, are included in GAOare included in GAO’'s Recommendations Databases Recommendations Database (https://www.gao.gov/recommendations).
.567
GAO prepares most of its reports in response to congressional requests or requirements in statute GAO prepares most of its reports in response to congressional requests or requirements in statute
or committee or conference reports. It undertakes a small percentage of reviews under the or committee or conference reports. It undertakes a small percentage of reviews under the
Comptroller GeneralComptroller General’'s authority.s authority.
GAO’
GAO's Watchdog website,s Watchdog website,550568 available on the House and Senate intranet, provides information on available on the House and Senate intranet, provides information on
how to request GAO reports, GAOhow to request GAO reports, GAO’'s policies for accepting and prioritizing mandates and requests s policies for accepting and prioritizing mandates and requests
(contained in its (contained in its Congressional Protocols551)569), and information about ongoing reviews, among and information about ongoing reviews, among
other things. GAO encourages Members and other things. GAO encourages Members and congressional staff to consult with its staff when considering a staff to consult with its staff when considering a
request or mandate for a report.request or mandate for a report.
In addition to its audits and evaluations, GAO offers a number of other services, including In addition to its audits and evaluations, GAO offers a number of other services, including
performing forensic audits and investigations of waste, fraud, and abuse; providing various legal performing forensic audits and investigations of waste, fraud, and abuse; providing various legal
services; prescribing accounting principles and standards for the executive branch; providing services; prescribing accounting principles and standards for the executive branch; providing
other services to help the audit and evaluation community improve and keep abreast of current other services to help the audit and evaluation community improve and keep abreast of current
developments; occasionally detailing staff to work for congressional committees for up to one developments; occasionally detailing staff to work for congressional committees for up to one
year on request of committee leadership; and providing testimony year on request of committee leadership; and providing testimonyfrom the Comptroller General
on high-level issues and the role of government.
on high-level issues.
GAO is led by the Comptroller General of the United States, who is appointed by the PresidentGAO is led by the Comptroller General of the United States, who is appointed by the President
—with the advice and consent of the Senatewith the advice and consent of the Senate, —from a list of candidates selected by a bipartisan, from a list of candidates selected by a bipartisan,
bicameral congressional commission.bicameral congressional commission.570 The Comptroller General is appointed to a 15-year term The Comptroller General is appointed to a 15-year term
and may not be reappointed. GAOand may not be reappointed. GAO’'s staff are located in Washington, DC, and in field offices in s staff are located in Washington, DC, and in field offices in
Atlanta, Boston, Chicago, Dallas, Dayton, Denver, Huntsville, Los Angeles, Norfolk, Oakland, Atlanta, Boston, Chicago, Dallas, Dayton, Denver, Huntsville, Los Angeles, Norfolk, Oakland,
and Seattle.and Seattle.
Offices of Senate Legal Counsel and House General Counsel
Since their establishment, the Offices of Senate Legal Counsel and House General Counsel have Since their establishment, the Offices of Senate Legal Counsel and House General Counsel have
developed parallel yet distinctly unique and independent roles as institutional legal developed parallel yet distinctly unique and independent roles as institutional legal“voices”"voices" of of
the two bodies they represent. Both offices perform functions important to committee oversight, the two bodies they represent. Both offices perform functions important to committee oversight,
including representing the committees of their respective chambers in certain judicial including representing the committees of their respective chambers in certain judicial
proceedings.proceedings.
Senate Legal Counsel
The Office of Senate Legal Counsel provides legal assistance and representation to Senators, The Office of Senate Legal Counsel provides legal assistance and representation to Senators,
committees, officers, and employees of the Senate on matters pertaining to their official duties. It committees, officers, and employees of the Senate on matters pertaining to their official duties. It
was established was established“"to serve the institution of Congress rather than the partisan interests of one party to serve the institution of Congress rather than the partisan interests of one party
or anotheror another”552"571 in the Ethics in Government Act of 1978. in the Ethics in Government Act of 1978.553
572
Statutory duties of the office include defensive legal representation of the Senate, its committees, Statutory duties of the office include defensive legal representation of the Senate, its committees,
membersMembers, officers, and employees, officers, and employees573;;554 representation in legal proceedings to aid investigations by
550 http://watchdog.gao.gov/.
551 GAO’s Congressional Protocols can be accessed at https://www.gao.gov/products/GAO-17-767G.
552 S. Rept. 95-170, 95th Cong., 2nd sess. (1978) at 84.
553 P.L. 95-520, §§701 et seq., 92 Stat. 1824, 1875 (1978), codified principally in 2 U.S.C. §§288 et seq.
554 2 U.S.C. §288c. For further discussion, see U.S. Congress, Senate, Riddick’s Senate Procedure: Precedents and
Practice, 101st Cong., 2nd sess., S.Doc. 101-28 (Washington: GPO, 1992), pp. 1236-1247, https://www.gpo.gov/fdsys/
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Senate committees;555 representation in legal proceedings to aid investigations by Senate committees574; representation of the Senate itself in litigation in cases in which the Senate representation of the Senate itself in litigation in cases in which the Senate
is a party and also as amicus curiae when the Senate has an institutional interestis a party and also as amicus curiae when the Senate has an institutional interest575;;556 providing providing
legal advice and assistance to Senatorslegal advice and assistance to Senators576;;557 and performing such other duties consistent with the and performing such other duties consistent with the
nonpartisan purposes and limitations of Title VII of the Ethics Act as the Senate may direct.nonpartisan purposes and limitations of Title VII of the Ethics Act as the Senate may direct.558
577
Critical to committee oversight, the Senate legal counsel may represent committees in Critical to committee oversight, the Senate legal counsel may represent committees in
proceedings to obtain evidence for Senate investigations. Specifically, the office may represent a proceedings to obtain evidence for Senate investigations. Specifically, the office may represent a
Senate committee or subcommittee in a civil action to enforce a subpoena.Senate committee or subcommittee in a civil action to enforce a subpoena.559578 Additionally, a Additionally, a
committee may direct the Senate legal counsel to represent it or any of its subcommittees in an committee may direct the Senate legal counsel to represent it or any of its subcommittees in an
application for an immunity order.application for an immunity order.560
579
The office also has a number of advisory functions. Principal among these are the responsibility The office also has a number of advisory functions. Principal among these are the responsibility
of advising of advisingmembersMembers, committees, and officers of the Senate with respect to subpoenas or , committees, and officers of the Senate with respect to subpoenas or
requests for the withdrawal of Senate documents and the responsibility of advising committees requests for the withdrawal of Senate documents and the responsibility of advising committees
about their promulgation and implementation of rules and procedures for congressional about their promulgation and implementation of rules and procedures for congressional
investigations. The office also provides advice about legal questions that arise during the course investigations. The office also provides advice about legal questions that arise during the course
of investigations.of investigations.561
580
In addition, the counselIn addition, the counsel’'s office provides information and advice to Senators, officers, and s office provides information and advice to Senators, officers, and
employees on a wide range of legal and administrative matters employees on a wide range of legal and administrative mattersrelatingrelated to Senate business. Unlike to Senate business. Unlike
the House practice, the Senate legal counsel plays no formal role in the review and issuance of the House practice, the Senate legal counsel plays no formal role in the review and issuance of
subpoenas. However, committees may wish to consult with the office regarding the form and subpoenas. However, committees may wish to consult with the office regarding the form and
substance of proposed subpoenas prior to their issuance by committees.substance of proposed subpoenas prior to their issuance by committees.
The office is led by the Senate legal counsel and deputy counsel, who are appointed by the The office is led by the Senate legal counsel and deputy counsel, who are appointed by the
President pro tempore of the Senate from among recommendations submitted by the majority and President pro tempore of the Senate from among recommendations submitted by the majority and
minority leaders of the Senate without regard minority leaders of the Senate without regardforto political affiliation. political affiliation.562
581 House General Counsel
The House Office of General Counsel, authorized under House Rule II, clause 8, serves the role The House Office of General Counsel, authorized under House Rule II, clause 8, serves the role
of counsel for the institution. The office provides legal assistance and representation to Members, of counsel for the institution. The office provides legal assistance and representation to Members,
committees, officers, and employees of the House of Representativescommittees, officers, and employees of the House of Representatives, without regard to political without regard to political
affiliation,affiliation on matters pertaining to their official duties. on matters pertaining to their official duties.
The work of the office typically includes providing legal advice and assistance to House The work of the office typically includes providing legal advice and assistance to House
committees in the preparation and service of subpoenas; representing Members, committees, committees in the preparation and service of subpoenas; representing Members, committees,
officers, and employees of the House in judicial proceedings; providing legal advice and officers, and employees of the House in judicial proceedings; providing legal advice and
assistance to Members; and providing legal guidance regarding requests from executive branch assistance to Members; and providing legal guidance regarding requests from executive branch
agencies.
pkg/GPO-RIDDICK-1992/pdf/GPO-RIDDICK-1992-127.pdf.
555 2 U.S.C. §288d.
556 2 U.S.C. §288e.
557 2 U.S.C. §288g.
558 2 U.S.C. §288g(c). For examples of activities conducted by the Office of Senate Legal Counsel under this authority,
see Riddick’s Senate Procedure, pp. 1245-1246.
559 The procedure for directing the Senate legal counsel to bring a civil action to enforce a subpoena is detailed in
statute. See 2 U.S.C. §§288d; 28 U.S.C. §1365.
560 2 U.S.C. §§288b(d)(2), 288f.
561 2 U.S.C. §288g(a)(5)-(6).
562 2 U.S.C. §288(a)(2).
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agencies.
Committees often work closely with the Office of General Counsel in drafting subpoenas; dealing Committees often work closely with the Office of General Counsel in drafting subpoenas; dealing
with various asserted constitutional, statutory, and common law privileges; responding to with various asserted constitutional, statutory, and common law privileges; responding to
executive agencies and officials executive agencies and officialsthatwho resist congressional oversight; and navigating the statutory resist congressional oversight; and navigating the statutory
process for obtaining a contempt citation with respect to a recalcitrant witness.process for obtaining a contempt citation with respect to a recalcitrant witness.
The office represents the interests of House committees in judicial proceedings. The office The office represents the interests of House committees in judicial proceedings. The office
represents committees in federal court on applications for immunity orders pursuant to Title 18, represents committees in federal court on applications for immunity orders pursuant to Title 18,
Section 6005, of the Section 6005, of the U.S. Code; appears as amicus curiae in cases affecting House committee ; appears as amicus curiae in cases affecting House committee
investigations; defends against attempts to obtain direct or indirect judicial interference with investigations; defends against attempts to obtain direct or indirect judicial interference with
congressional subpoenas or other investigatory authority; represents committees seeking to congressional subpoenas or other investigatory authority; represents committees seeking to
prevent compelled disclosure of nonpublic information prevent compelled disclosure of nonpublic informationrelatingrelated to their investigatory or other to their investigatory or other
legislative activities; and appears in court on behalf of committees seeking judicial assistance in legislative activities; and appears in court on behalf of committees seeking judicial assistance in
obtaining access to documents or information, such as documents that are under seal or obtaining access to documents or information, such as documents that are under seal ormaterials
that may be protected by Rule 6(e) of the Federal Rules of Criminal Procedure.may be protected by Rule 6(e) of the Federal Rules of Criminal Procedure.
The Speaker appoints the general counsel, deputy general counsel, and other attorneys of the The Speaker appoints the general counsel, deputy general counsel, and other attorneys of the
office. The office functions office. The office functions“"pursuant to the direction of the Speaker, who shall consult with a pursuant to the direction of the Speaker, who shall consult with a
Bipartisan Legal Advisory Group,Bipartisan Legal Advisory Group,”" which consists of the majority and minority leaderships. which consists of the majority and minority leaderships.563
582 Office of Management and Budget
OMB came into existence under its current name in 1970. Its predecessor agency, the Bureau of OMB came into existence under its current name in 1970. Its predecessor agency, the Bureau of
the Budget, was established in 1921. Initially created as a unit in the Treasury Department, the the Budget, was established in 1921. Initially created as a unit in the Treasury Department, the
agency has been a part of the Executive Office of the President since 1939.agency has been a part of the Executive Office of the President since 1939.
583 Capabilities
OMB, though created by Congress, functions in many ways as the PresidentOMB, though created by Congress, functions in many ways as the President’'s agent for the s agent for the
management and implementation of policy, including the federal budget.management and implementation of policy, including the federal budget.564584 In practice, OMB In practice, OMB’s
's major responsibilities include:major responsibilities include:
assisting the President in the preparation of budget proposals and assisting the President in the preparation of budget proposals and
development of a fiscal programdevelopment of a fiscal program;
585;
supervising and controlling the administration of the budget in the executive supervising and controlling the administration of the budget in the executive
branch, including transmittal to Congress of proposals for deferrals and branch, including transmittal to Congress of proposals for deferrals and
rescissions;rescissions;
keeping the President informed about agencieskeeping the President informed about agencies’' activities (proposed, initiated, activities (proposed, initiated,
and completed) in order to coordinate efforts, expend appropriations and completed) in order to coordinate efforts, expend appropriations
economically, and minimize unnecessary overlap and duplication;economically, and minimize unnecessary overlap and duplication;
administering the process of review of draft proposed and final agency rules administering the process of review of draft proposed and final agency rules
established by Executive Order 12866;established by Executive Order 12866;
administering the process of review and approval of collections of administering the process of review and approval of collections of
information by federal agencies and reducing the burden of agency information by federal agencies and reducing the burden of agency
information collection on the public under the Paperwork Reduction Act of information collection on the public under the Paperwork Reduction Act of
1995;
563 House Rule II, clause 8 (117th Congress).
564 For more detailed information on OMB, see CRS Report RS21665, Office of Management and Budget (OMB): An
Overview, coordinated by Taylor N. Riccard.
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1995;
overseeing (1) the manner in which agencies disseminate information to the overseeing (1) the manner in which agencies disseminate information to the
public (including electronic dissemination); (2) how agencies collect, public (including electronic dissemination); (2) how agencies collect,
maintain, and use statistics; (3) how agenciesmaintain, and use statistics; (3) how agencies’' archives are maintained; (4) archives are maintained; (4)
how agencies develop systems for ensuring privacy, confidentiality, security, how agencies develop systems for ensuring privacy, confidentiality, security,
and the sharing of information collected by the government; and (5) how the and the sharing of information collected by the government; and (5) how the
government acquires and uses information technology, pursuant to the government acquires and uses information technology, pursuant to the
Paperwork Reduction Act of 1995,Paperwork Reduction Act of 1995,565586 the Clinger-Cohen Act of 1996, the Clinger-Cohen Act of 1996,566587 and and
other legislation;other legislation;
studying and promoting better governmental management, including making studying and promoting better governmental management, including making
recommendations to agencies regarding their administrative organization and recommendations to agencies regarding their administrative organization and
operations;operations;
clearing and coordinating agenciesclearing and coordinating agencies’' draft testimony and legislative proposals draft testimony and legislative proposals
and making recommendations about presidential action on legislation;and making recommendations about presidential action on legislation;
assisting in the preparation, consideration, and clearance of executive orders assisting in the preparation, consideration, and clearance of executive orders
and proclamations;and proclamations;
planning and developing information systems that provide the President with planning and developing information systems that provide the President with
agency and program performance data;agency and program performance data;
establishing and overseeing implementation of financial management establishing and overseeing implementation of financial management
policies and requirements for the federal government;policies and requirements for the federal government;
assisting in development of regulatory reform proposals and programs for assisting in development of regulatory reform proposals and programs for
paperwork reduction and the implementation of these initiatives; paperwork reduction and the implementation of these initiatives;
and
improving the economy and efficiency of the federal procurement process by improving the economy and efficiency of the federal procurement process by
providing overall direction for procurement policies, regulations, procedures, providing overall direction for procurement policies, regulations, procedures,
and forms.and forms.
Limitations
Limitations OMB is inevitably drawn into institutional and partisan struggles between the President and OMB is inevitably drawn into institutional and partisan struggles between the President and
Congress. Difficulties with Congress notwithstanding, OMB is a central coordinator and overseer Congress. Difficulties with Congress notwithstanding, OMB is a central coordinator and overseer
for executive agencies and can be a rich potential source of information for investigative and for executive agencies and can be a rich potential source of information for investigative and
oversight committees. In addition, Congress may through legislation assign duties to OMBoversight committees. In addition, Congress may through legislation assign duties to OMB in
order to establish oversight mechanisms and advance congressional oversight objectives. to establish oversight mechanisms and advance congressional oversight objectives.
Legislative Coordination and Clearance, Circular A-19, and OMB
Federal agencies, while organizationally part of the executive branch and subject to the PresidentFederal agencies, while organizationally part of the executive branch and subject to the President’'s program, s program,
communicate with and rely upon Congress to enact legislation and provide appropriations. An example of this communicate with and rely upon Congress to enact legislation and provide appropriations. An example of this
institutional tensioninstitutional tension among federal agencies, Congress, and the presidential Administration is found in the is found in the
legislative coordination and clearance procedures described in OMBlegislative coordination and clearance procedures described in OMB’s 's Circular A-19.
CircularCircular No. A-19.
Circular No. A-19 prescribes the process for agency recommendations on proposed, pending, and prescribes the process for agency recommendations on proposed, pending, and enrol ed
enrolled legislation. To create a singular Administration voice, OMBlegislation. To create a singular Administration voice, OMB’'s legislative coordination and clearance process s legislative coordination and clearance process
centralizes the development of the Administrationcentralizes the development of the Administration’'s position on legislation and communicates that position to s position on legislation and communicates that position to
Congress and the agencies. This allows for consideration of various issues, including the Congress and the agencies. This allows for consideration of various issues, including theeffecteffects of the Administration' of the
Administration’s position on agencies, existing laws, and future policy goals. This process is s position on agencies, existing laws, and future policy goals. This process is fol owedfollowed in the in the
creation of Statements of Administration Policy (SAPs), draft legislation, agency testimony, and agency reports.creation of Statements of Administration Policy (SAPs), draft legislation, agency testimony, and agency reports.
Through the process, OMB and White House officials decide which agency views shall be accepted and which shall Through the process, OMB and White House officials decide which agency views shall be accepted and which shall
be discarded in forming the Administrationbe discarded in forming the Administration’'s view on a matter at hand. As a practical matter, not all agency s view on a matter at hand. As a practical matter, not all agency
565 P.L. 104-13, 44 U.S.C. ch. 35.
566 P.L. 104-106, 40 U.S.C. §§11101 et seq.
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positions wil positions will be included. These deliberations are typically not visible to Congress. However, in practice, agencies be included. These deliberations are typically not visible to Congress. However, in practice, agencies
may reach out to Members of Congress or committee staff about the agencymay reach out to Members of Congress or committee staff about the agency’'s policy preferences.588
Budget Information
The Congressional Budget and Impoundment Control Act of 1974s policy preferences.
Sources: OMB, “1. Purpose,” in Circular No. A-19, https://www.whitehouse.gov/omb/circulars_a019/#purpose; and
CRS Report R44539, Statements of Administration Policy, by Meghan M. Stuessy.
Budget Information
The 1974 Budget Act, as amended, provides Congress with significant resources on budgetary , as amended, provides Congress with significant resources on budgetary
information. Extensive budgetary materials are also available from the executive branch. Some of information. Extensive budgetary materials are also available from the executive branch. Some of
the major sources of budgetary information are available on and off Capitol Hill. They include (1) the major sources of budgetary information are available on and off Capitol Hill. They include (1)
the President and executive agencies (under the Budget and Accounting Act of 1921, the the President and executive agencies (under the Budget and Accounting Act of 1921, the
President presents an annual budget to Congress); (2) CBO; (3) the House and Senate Budget President presents an annual budget to Congress); (2) CBO; (3) the House and Senate Budget
Committees; (4) the House and Senate Appropriations Committees; and (5) the House and Senate Committees; (4) the House and Senate Appropriations Committees; and (5) the House and Senate
legislative committees. In addition, CRS and GAO prepare reports that address the budget and legislative committees. In addition, CRS and GAO prepare reports that address the budget and
related issues.related issues.
Discretionary spending, the component of the budget that the Appropriations Committees control Discretionary spending, the component of the budget that the Appropriations Committees control
through the annual appropriations process, accounts for about one-third of federal spending. through the annual appropriations process, accounts for about one-third of federal spending.
Other House and Senate committees, particularly the House Committee on Ways and Means and Other House and Senate committees, particularly the House Committee on Ways and Means and
the Senate Committee on Finance, oversee more than $2 trillion in spending through the Senate Committee on Finance, oversee more than $2 trillion in spending through
reauthorizations, direct spending measures, and reconciliation legislation. In addition, the latter reauthorizations, direct spending measures, and reconciliation legislation. In addition, the latter
two committees oversee a diverse set of programs—including tax collection, tax expenditures, two committees oversee a diverse set of programs—including tax collection, tax expenditures,
and some user fees—through the revenue process. The oversight activities of all of these and some user fees—through the revenue process. The oversight activities of all of these
committees committeesisare enhanced through the enhanced through the use of the diverse range of budgetary information that is diverse range of budgetary information that is
available to them.available to them.
Executive Branch Budget Products
Budget of the United States Government contains the Budget Message of the President and contains the Budget Message of the President and
information on the Presidentinformation on the President’'s budget proposals by budget function.s budget proposals by budget function.
Analytical Perspectives, Budget of the United States Government contains analyses contains analysesthat are
designed to highlight specified subject areas or provide other significant presentations of budget designed to highlight specified subject areas or provide other significant presentations of budget
data that place the budget in perspective. This volume includes economic and accounting data that place the budget in perspective. This volume includes economic and accounting
analyses, information on federal receipts and collections, analyses of federal spending, analyses, information on federal receipts and collections, analyses of federal spending,
information on federal borrowing and debt, baseline or current services estimates, and other information on federal borrowing and debt, baseline or current services estimates, and other
technical presentations. The technical presentations. The Analytical Perspectives volume also contains supplemental material volume also contains supplemental material
with several detailed tables—including tables showing the budget by agency and account and by with several detailed tables—including tables showing the budget by agency and account and by
function, subfunction, and program—that are available function, subfunction, and program—that are availableon the internet and as a CD-ROM in the
printed document.
online. Historical Tables provides data on budget receipts, outlays, surpluses or deficits, federal debt, provides data on budget receipts, outlays, surpluses or deficits, federal debt,
and federal employment over an extended time period, generally from 1940 or earlier to the and federal employment over an extended time period, generally from 1940 or earlier to the
present. To the extent feasible, the data have been adjusted to provide consistency with the budget present. To the extent feasible, the data have been adjusted to provide consistency with the budget
and to provide comparability over time.and to provide comparability over time.
Appendix, Budget of the United States Government contains detailed information on the contains detailed information on the
various appropriations and funds that constitute the budget. The various appropriations and funds that constitute the budget. The Appendix contains financial contains financial
information on individual programs and appropriation accounts. It includes for each agency the information on individual programs and appropriation accounts. It includes for each agency the
proposed text of appropriations language, budget schedules for each account, legislative proposed text of appropriations language, budget schedules for each account, legislative
proposals, explanations of the work to be performed and the funds needed, and proposed general proposals, explanations of the work to be performed and the funds needed, and proposed general
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provisions applicable to the appropriations of entire agencies or groups of agencies. provisions applicable to the appropriations of entire agencies or groups of agencies. Information
is also providedThe Appendix also provides information on certain activities whose transactions are not part of the budget totals. on certain activities whose transactions are not part of the budget totals.
Several other points about the PresidentSeveral other points about the President’'s budget are worth noting. The Presidents budget are worth noting. The President’'s budgetary s budgetary
communications to Congress continue after submission of the budget (typically in early February) communications to Congress continue after submission of the budget (typically in early February)
and usually include a series of budget amendments and supplemental appropriations, the Mid-and usually include a series of budget amendments and supplemental appropriations, the Mid-
Session Review, SAPs on legislation, and even revised budgets on occasion. Most of these Session Review, SAPs on legislation, and even revised budgets on occasion. Most of these
additional communications are issued as House documents and are available on the web from the additional communications are issued as House documents and are available on the web from the
Government Publishing Office or the OMB home page (in the case of SAPs). The initial budget Government Publishing Office or the OMB home page (in the case of SAPs). The initial budget
products often do not provide sufficient information on the Presidentproducts often do not provide sufficient information on the President’'s budgetary s budgetary
recommendations to enable committees to begin developing legislation. Further budgetary recommendations to enable committees to begin developing legislation. Further budgetary
information is provided in the agenciesinformation is provided in the agencies’ “justification”' "justification" materials (see below) and the later materials (see below) and the later
submission of legislative proposals. Finally, many executive agency documents (such as agency submission of legislative proposals. Finally, many executive agency documents (such as agency
budget submissions to OMB) are often not made available to Congress.budget submissions to OMB) are often not made available to Congress.
AgencyBudget Justificationsbudget justifications are typically detailed documents that agencies submit to the are typically detailed documents that agencies submit to the
House and Senate Appropriations Committees each year to support their budget requests. House and Senate Appropriations Committees each year to support their budget requests.
Generally, agency budget justifications consist of descriptions of each agencyGenerally, agency budget justifications consist of descriptions of each agency’'s programs and s programs and
activities and their purposes.activities and their purposes.567589 Agencies may also include explanations of the proposed changes Agencies may also include explanations of the proposed changes
in appropriations and activities for the next fiscal year, often concentrating on the increase or in appropriations and activities for the next fiscal year, often concentrating on the increase or
decrease in spending from the previous fiscal year. The format and content of budget decrease in spending from the previous fiscal year. The format and content of budget
justifications differ from agency to agency and may reflect the influence of agencies and their justifications differ from agency to agency and may reflect the influence of agencies and their
component organizations, House and Senate appropriators, and OMB. Many participants in the component organizations, House and Senate appropriators, and OMB. Many participants in the
annual appropriations process also refer to these documents as annual appropriations process also refer to these documents as“"congressional budget congressional budget
justifications,justifications,”" or or “"CBJs.CBJs.”
"
Congressional Budget Justification Transparency Act of 2021
In 2021, Congress passed legislation to newly define agency budget justifications by statute and require their In 2021, Congress passed legislation to newly define agency budget justifications by statute and require their
posting online (P.L. 117-40). Prior to the enactment of this law, statutory provisions that posting online (P.L. 117-40). Prior to the enactment of this law, statutory provisions thatestablishestablished key aspects of key aspects of
the executive budget process in Title 31 of the the executive budget process in Title 31 of the U.S. Code were relatively silent on the topic of agency budget were relatively silent on the topic of agency budget
justifications submitted to Congress. In practice, this silence left considerable discretion in the creation of these justifications submitted to Congress. In practice, this silence left considerable discretion in the creation of these
documents. OMBdocuments. OMB’s Circular No. A-11 provides guidance to agencies requiring them's Circular A-11 requires agencies to consult with appropriators to consult with appropriators
before submitting their budget justifications. Typically, the written justifications vary in form and content with each before submitting their budget justifications. Typically, the written justifications vary in form and content with each
agency and appropriations subcommittee, reflecting the ongoing relationship between them. An agency's budget agency and appropriations subcommittee, reflecting the ongoing relationship between them. An agency's budget
justification usually contains a detailed description of its programs and activities and their purposesjustification usually contains a detailed description of its programs and activities and their purposes, as well as an as well as an
explanation of the proposed changes in appropriations and program activities for the next fiscal year.explanation of the proposed changes in appropriations and program activities for the next fiscal year.
Among other things, P.L. 117-40 newly defined in statute that agency Among other things, P.L. 117-40 newly defined in statute that agency“‘"'budget justification materialsbudget justification materials’' [are] the [are] the
annual budget justification materials of a Federal agency, or a component of a Federal agency, that are submitted, annual budget justification materials of a Federal agency, or a component of a Federal agency, that are submitted,
in conjunction within conjunction with”" the President the President’'s annual submission. Prospectively, these materials are required to be posted s annual submission. Prospectively, these materials are required to be posted
on USAspending.govon USAspending.gov, subject to OMB-developed data standards. In addition, the materials are required to be subject to OMB-developed data standards. In addition, the materials are required to be
posted as posted as “"open Government data assetsopen Government data assets”" (i.e., machine-readable and other attributes specified by Title 44, (i.e., machine-readable and other attributes specified by Title 44,
Section 3502, of the Section 3502, of the U.S. Code, relating to federal information policy). Separately, the President, relating to federal information policy). Separately, the President’'s budget s budget
submission is also required to include a submission is also required to include a“"tabular listtabular list”" of the justifications. of the justifications.
Looking ahead, it remains to be seen what the implications of the legislation may be.
The enactment of the The enactment of the
Congressional Budget Justification Transparency Act of 2021 may be characterized as Congressional Budget Justification Transparency Act of 2021 may be characterized as“"fire alarmfire alarm”" oversight. This oversight. This
legislation promotes greater transparency in the appropriations process and provides interested parties with more legislation promotes greater transparency in the appropriations process and provides interested parties with more
opportunities to gather information and sound an alarm to Congress if additional oversight may be necessary. At opportunities to gather information and sound an alarm to Congress if additional oversight may be necessary. At
times, Congress and OMB may compete or cooperate for influence over the decisionmaking of agencies. For times, Congress and OMB may compete or cooperate for influence over the decisionmaking of agencies. For
example, House and Senate appropriators and OMB both have a role in the formulation of agenciesexample, House and Senate appropriators and OMB both have a role in the formulation of agencies’' budget budget
justifications. OMB has used increased transparency in the past in an attempt to exercise influence over agencies. justifications. OMB has used increased transparency in the past in an attempt to exercise influence over agencies.
It is unclear if transparency associated with this legislation could affect power relationships among agencies, It is unclear if transparency associated with this legislation could affect power relationships among agencies,
Congress, and OMB.
567 See CRS Report RS20268, Agency Justification of the President’s Budget, by Michelle D. Christensen.
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Sources: OMB, Circular No. A-11: Preparation, Submission, and Execution of the Budget, August 2021, §22.6;
CRS Report RS20268, Agency Justification of the President’s Budget, by Michelle D. Christensen; and CRS Report
RS21665, Office of Management and Budget (OMB): An Overview, coordinated by Taylor N. Riccard.
Congress, and OMB.590 Some Other Sources of Useful Budgetary Information
Appropriations Committees. The subcommittees of the House and Senate Appropriations The subcommittees of the House and Senate Appropriations
Committees hold extensive hearings on the fiscal year appropriations requests of federal Committees hold extensive hearings on the fiscal year appropriations requests of federal
departments and agencies. Each federal department or agency submits departments and agencies. Each federal department or agency submits justification material to the to the
Committees on Appropriations. Their submissions can run from several hundred pages to over Committees on Appropriations. Their submissions can run from several hundred pages to over
2,000 pages. The Appropriations subcommittees typically print this material with the hearing 2,000 pages. The Appropriations subcommittees typically print this material with the hearing
record of the federal officials concerning these requests.record of the federal officials concerning these requests.
BudgetCommitteesCommittees. The House and Senate Budget Committees, in preparing to report the The House and Senate Budget Committees, in preparing to report the
annual concurrent budget resolution, conduct hearings on overall federal budget policy. These annual concurrent budget resolution, conduct hearings on overall federal budget policy. These
hearings and other fiscal analyses made by these panels address various aspects of federal hearings and other fiscal analyses made by these panels address various aspects of federal
programs and funding levels that can be useful sources of information.programs and funding levels that can be useful sources of information.
Other committees. To assist the Budget Committees in developing the concurrent budget To assist the Budget Committees in developing the concurrent budget
resolution, other committees are required to prepare resolution, other committees are required to prepare“"views and estimatesviews and estimates”" of programs in their of programs in their
jurisdictionjurisdictions. Committee views and estimates, usually packaged together and issued as a . Committee views and estimates, usually packaged together and issued as a
committee print, may also be a useful source of detailed budget data.committee print, may also be a useful source of detailed budget data.
Internal agency studies and budget reviews. These agency studies and reviews are often These agency studies and reviews are often
conducted in support of budget formulation and can yield useful information about individual conducted in support of budget formulation and can yield useful information about individual
programs. The budgeting documents, evaluations, and priority rankings of individual agency programs. The budgeting documents, evaluations, and priority rankings of individual agency
programs can provide insights into executive branch views of the importance of individual programs can provide insights into executive branch views of the importance of individual
programs.programs.
Nonfederal Information Resources
Committees and Members can acquire useful information about executive branch programs and Committees and Members can acquire useful information about executive branch programs and
performance from nonfederal stakeholders. These stakeholders may bring expertise to performance from nonfederal stakeholders. These stakeholders may bring expertise to
congressional deliberations, and they may be categorized in many ways. Illustrative examples of congressional deliberations, and they may be categorized in many ways. Illustrative examples of
these stakeholders and their potential these stakeholders and their potentialcontributioncontributions to congressional oversight are described below. to congressional oversight are described below.
State and local governments may offer valuable information to congressional overseers on the may offer valuable information to congressional overseers on the
efficiency, effectiveness, and fairness of federal programs and policies, including potential efficiency, effectiveness, and fairness of federal programs and policies, including potential
implementation challenges and unintended consequences. State and local governments administer implementation challenges and unintended consequences. State and local governments administer
many federal programs, policies, and funds—such as those related to health care (e.g., Medicaid), many federal programs, policies, and funds—such as those related to health care (e.g., Medicaid),
workforce development, education, and disaster management—and often audit or evaluate their workforce development, education, and disaster management—and often audit or evaluate their
effectiveness. Some state and local programs have also served as models for similar programs at effectiveness. Some state and local programs have also served as models for similar programs at
the federal level.the federal level.
Think tanks and good government organizationsare research entities that periodically conduct
studies of public policy issues that may inform Members and committees on how well federal may inform Members and committees on how well federal
agencies and programs are working. Examples of think tanks include the Brookings Institution, agencies and programs are working. Examples of think tanks include the Brookings Institution,
the RAND Corporation, and the Heritage Foundation. Examples of good government the RAND Corporation, and the Heritage Foundation. Examples of good government
organizations include the National Academy of Public Administration, the Partnership for Public organizations include the National Academy of Public Administration, the Partnership for Public
Service, and the Project on Government Oversight (POGO). Think tanks and good government Service, and the Project on Government Oversight (POGO). Think tanks and good government
organizations may operate under various legal authorities (e.g., 501(c)(3) status with the Internal organizations may operate under various legal authorities (e.g., 501(c)(3) status with the Internal
Revenue Service), and their political ideologies and policy issues of focus can vary widely. Some Revenue Service), and their political ideologies and policy issues of focus can vary widely. Some
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organizations, such as POGO, focus explicitly on improving government and congressional organizations, such as POGO, focus explicitly on improving government and congressional
oversight.oversight.
Mediaorganizationsorganizations are a frequent source of information that might be useful to Members and are a frequent source of information that might be useful to Members and
committees conducting oversight. Media organizations provide committees conducting oversight. Media organizations provideboth general coverage that they general coverage that they
believe will be of interest to the general public as well as specialized reportingbelieve will be of interest to the general public as well as specialized reporting on topics that that
might provide a more detailed view into particular policy areas. Additionally, in recent years there might provide a more detailed view into particular policy areas. Additionally, in recent years there
has been increased interest in nonprofit investigative journalism by organizations such as has been increased interest in nonprofit investigative journalism by organizations such as
ProPublica, which tend to produce ProPublica, which tend to producemore deeplydeeper reporting on matters with public policy impacts reporting on matters with public policy impacts
that may be of particular interest to Congress. Regardless of their focus, journalists may develop that may be of particular interest to Congress. Regardless of their focus, journalists may develop
sources and publicize information that can sources and publicize information that can be useful to Congress and would not otherwise come to useful to Congress and would not otherwise come to
the bodythe body’'s attention.s attention.
Interest groups might provide unique perspectives on the impact of legislation to Members and might provide unique perspectives on the impact of legislation to Members and
committees, including potential unintended consequences on specific populations. In general, committees, including potential unintended consequences on specific populations. In general,
interest groups interest groupsare organizations that represent individuals or entities represent individuals or entities whothat share common views share common views
on a specific public policy issue, such as civil rights, education, or health. An interest group often on a specific public policy issue, such as civil rights, education, or health. An interest group often
takes a particular position on a policy issue and advocates for takes a particular position on a policy issue and advocates foradoption of laws and policies that laws and policies that
align with that position. Such advocacy can include attempts to directly influence public policy, align with that position. Such advocacy can include attempts to directly influence public policy,
including lobbying Members and congressional committees.including lobbying Members and congressional committees.
Nongovernmental organizations (NGOs), broadly speaking, are , broadly speaking, areentities that are independent of independent of
government involvement or control. The acronym NGO can encompass a broad range of entities, government involvement or control. The acronym NGO can encompass a broad range of entities,
such as international organizations or domestic nonprofit organizations. Similar to think tanks, such as international organizations or domestic nonprofit organizations. Similar to think tanks,
NGOs can vary in terms of their purpose, legal authorities, policy areas of focus, and political or NGOs can vary in terms of their purpose, legal authorities, policy areas of focus, and political or
religious affiliations. NGOs may be active in different aspects of social, political, scientific, religious affiliations. NGOs may be active in different aspects of social, political, scientific,
environmental, and humanitarian policymaking. NGOs might provide valuable assistance to environmental, and humanitarian policymaking. NGOs might provide valuable assistance to
congressional overseers in navigating a broad range of policy issues. According to the congressional overseers in navigating a broad range of policy issues. According to the
Department of State, NGOs Department of State, NGOs“"often develop and address new approaches to social and economic often develop and address new approaches to social and economic
problems that governments cannot address alone.problems that governments cannot address alone.”568
"591 Private sector companies might assist Members and committees in overseeing might assist Members and committees in overseeingthe
implementation of agency programs and policies, including by agency programs and policies, including by identifying potential application of
applying private sector expertise and practices to government programs and services. Companies that are private sector expertise and practices to government programs and services. Companies that are
regulated may also have feedback on the effectiveness of regulated may also have feedback on the effectiveness ofthe regulationregulations and how related and how related
implementation could be improved. Companies may also market themselves to federal agencies, implementation could be improved. Companies may also market themselves to federal agencies,
seeking brand recognition and contracts. In addition to providing consultative services to seeking brand recognition and contracts. In addition to providing consultative services to
agencies, private sector companies may publish insights and perspectives on certain federal agencies, private sector companies may publish insights and perspectives on certain federal
policy issues, such as shared services, information technology, and cybersecurity.policy issues, such as shared services, information technology, and cybersecurity.
Members of the general public can provide useful feedback on how well federal programs and can provide useful feedback on how well federal programs and
services are working. Such feedback can assist Members and committees in obtaining policy-services are working. Such feedback can assist Members and committees in obtaining policy-
relevant information about program performance and in evaluating the problems individuals relevant information about program performance and in evaluating the problems individuals
might be having with federal administrators and agencies. A variety of methods might be might be having with federal administrators and agencies. A variety of methods might be
employed to solicit employed to solicitthe views of those who receive federal programs and servicestheir views, including , including
investigations and hearings, field and on-site meetings, and surveys.investigations and hearings, field and on-site meetings, and surveys.
568 U.S. Department of State, “Non-Governmental Organizations (NGOs) in the United States,” January 20, 2017,
https://www.state.gov/j/drl/rls/fs/2017/266904.htm.
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Appendix A. Illustrative Subpoena
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GENERAL INSTRUCTIONS
Appendix A.
Illustrative Subpoena
are in your possession, custody, or control, whether held by you or your past or present agents, are in your possession, custody, or control, whether held by you or your past or present agents,
employees, and representatives acting on your behalf. You are also required to produce employees, and representatives acting on your behalf. You are also required to produce
documents that you have a legal right to obtain, documents that you have a right to copy or documents that you have a legal right to obtain, documents that you have a right to copy or
have access to, and documents that you have placed in the temporary possession, custody, or have access to, and documents that you have placed in the temporary possession, custody, or
control of any third party. No records, documents, data or information called for by this request control of any third party. No records, documents, data or information called for by this request
shall be destroyed, modified, removed or otherwise made inaccessible to the Committee.shall be destroyed, modified, removed or otherwise made inaccessible to the Committee.
2. In the event that any entity, organization or individual denoted in this subpoena has been, or is 2. In the event that any entity, organization or individual denoted in this subpoena has been, or is
also known by any other name than that herein denoted, the subpoena shall be read to also also known by any other name than that herein denoted, the subpoena shall be read to also
include them under that alternative identification.include them under that alternative identification.
3. Each document produced shall be produced in a form that renders the document susceptible of 3. Each document produced shall be produced in a form that renders the document susceptible of
copying.copying.
4. Documents produced in response to this subpoena shall be produced together with copies of 4. Documents produced in response to this subpoena shall be produced together with copies of
file labels, dividers or identifying markers with which they were associated when this subpoena file labels, dividers or identifying markers with which they were associated when this subpoena
was served. Also identify to which paragraph from the subpoena that such documents are was served. Also identify to which paragraph from the subpoena that such documents are
responsive.
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responsive.
5. It shall not be a basis for refusal to produce documents that any other person or entity also 5. It shall not be a basis for refusal to produce documents that any other person or entity also
possesses non-identical or identical copies of the same document.possesses non-identical or identical copies of the same document.
6. If any of the subpoenaed information is available in machine-readable form (such as punch 6. If any of the subpoenaed information is available in machine-readable form (such as punch
cards, paper or magnetic tapes, drums, disks, or core storage), state the form in which it is cards, paper or magnetic tapes, drums, disks, or core storage), state the form in which it is
available and provide sufficient detail to allow the information to be copied to a readable available and provide sufficient detail to allow the information to be copied to a readable
format. If the information requested is stored in a computer, indicate whether you have an format. If the information requested is stored in a computer, indicate whether you have an
existing program that will print the records in a readable form.existing program that will print the records in a readable form.
7. If the subpoena cannot be complied with in full, it shall be complied with to the extent 7. If the subpoena cannot be complied with in full, it shall be complied with to the extent
possible, which shall include an explanation of why full compliance is not possible.possible, which shall include an explanation of why full compliance is not possible.
8. In the event that a document is withheld on the basis of privilege, provide the following 8. In the event that a document is withheld on the basis of privilege, provide the following
information concerning any such document: (a) the privilege asserted; (b) the type of information concerning any such document: (a) the privilege asserted; (b) the type of
document; (c) the general subject matter; (d) the date, author and addressee; and (e) the document; (c) the general subject matter; (d) the date, author and addressee; and (e) the
relationship of the author and addressee to each other.relationship of the author and addressee to each other.
9. If any document responsive to this subpoena was, but no longer is, in your possession, custody, 9. If any document responsive to this subpoena was, but no longer is, in your possession, custody,
or control, identify the document (stating its date, author, subject and recipients) and explain or control, identify the document (stating its date, author, subject and recipients) and explain
the circumstances by which the document ceased to be in your possession, or control.the circumstances by which the document ceased to be in your possession, or control.
10. If a date set forth in this subpoena referring to a communication, meeting, or other event is 10. If a date set forth in this subpoena referring to a communication, meeting, or other event is
inaccurate, but the actual date is known to you or is otherwise apparent from the context of the inaccurate, but the actual date is known to you or is otherwise apparent from the context of the
request, you should produce all documents which would be responsive as if the date were request, you should produce all documents which would be responsive as if the date were
correct.correct.
11. Other than subpoena questions directed at the activities of specified entities or persons, to the 11. Other than subpoena questions directed at the activities of specified entities or persons, to the
extent that information contained in documents sought by this subpoena may require extent that information contained in documents sought by this subpoena may require
production of donor lists, or information otherwise enabling the re-creation of donor lists, production of donor lists, or information otherwise enabling the re-creation of donor lists,
such identifying information may be redacted.such identifying information may be redacted.
12. The time period covered by this subpoena is included in the attached Schedule A.12. The time period covered by this subpoena is included in the attached Schedule A.
13. This request is continuing in nature. Any record, document, compilation of data or 13. This request is continuing in nature. Any record, document, compilation of data or
information, not produced because it has not been located or discovered by the return date, information, not produced because it has not been located or discovered by the return date,
shall be produced immediately upon location or discovery subsequent thereto.shall be produced immediately upon location or discovery subsequent thereto.
14. All documents shall be Bates stamped sequentially and produced sequentially.14. All documents shall be Bates stamped sequentially and produced sequentially.
15. Two sets of documents shall be delivered, one set for the Majority Staff and one set for the 15. Two sets of documents shall be delivered, one set for the Majority Staff and one set for the
Minority Staff. When documents are produced to the Subcommittee, production sets shall be Minority Staff. When documents are produced to the Subcommittee, production sets shall be
delivered to the Majority Staff in Room B346 Rayburn House Office Building and the delivered to the Majority Staff in Room B346 Rayburn House Office Building and the
Minority Staff in Room 2101 Rayburn House Office Building.Minority Staff in Room 2101 Rayburn House Office Building.
GENERAL DEFINITIONS
1. The term 1. The term “document”"document" means any written, recorded, or graphic matter of any nature whatsoever, means any written, recorded, or graphic matter of any nature whatsoever,
regardless of how recorded, and whether original or copy, including, but not limited to, the regardless of how recorded, and whether original or copy, including, but not limited to, the
following: memoranda, reports, expense reports, books, manuals, instructions, financial following: memoranda, reports, expense reports, books, manuals, instructions, financial
reports, working papers, records notes, letters, notices, confirmations, telegrams, receipts, reports, working papers, records notes, letters, notices, confirmations, telegrams, receipts,
appraisals, pamphlets, magazines, newspapers, prospectuses, interoffice and intra office appraisals, pamphlets, magazines, newspapers, prospectuses, interoffice and intra office
communications, electronic mail (E-mail), contracts, cables, notations of any type of communications, electronic mail (E-mail), contracts, cables, notations of any type of
conversation, telephone call, meeting or other communication, bulletins, printed matter, conversation, telephone call, meeting or other communication, bulletins, printed matter,
computer printouts, teletypes, invoices, transcripts, diaries, analyses, returns, summaries, computer printouts, teletypes, invoices, transcripts, diaries, analyses, returns, summaries,
minutes, bills, accounts, estimates, projections, comparisons, messages, correspondence, press minutes, bills, accounts, estimates, projections, comparisons, messages, correspondence, press
releases, circulars, financial statements, reviews, opinions, offers, studies and investigations, releases, circulars, financial statements, reviews, opinions, offers, studies and investigations,
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questionnaires and surveys, and work sheets (and all drafts, preliminary versions, alterations, questionnaires and surveys, and work sheets (and all drafts, preliminary versions, alterations,
modifications, revisions, changes, and amendments of any of the foregoing, as well as any modifications, revisions, changes, and amendments of any of the foregoing, as well as any
attachments or appendices thereto), and graphic or oral records or representations of any kind attachments or appendices thereto), and graphic or oral records or representations of any kind
(including without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, (including without limitation, photographs, charts, graphs, microfiche, microfilm, videotape,
recordings and motion pictures), and electronic, mechanical, and electric records or recordings and motion pictures), and electronic, mechanical, and electric records or
representations of any kind (including, without limitation, tapes, cassettes, discs, and representations of any kind (including, without limitation, tapes, cassettes, discs, and
recordings) and other written, printed, typed, or other graphic or recorded matter of any kind or recordings) and other written, printed, typed, or other graphic or recorded matter of any kind or
nature, however produced or reproduced, and whether preserved in writing, film, tape, disc, or nature, however produced or reproduced, and whether preserved in writing, film, tape, disc, or
videotape. A videotape. Adocumentsdocument bearing any notation not a part of the original text is to be considered a bearing any notation not a part of the original text is to be considered a
separate document. A draft or non-identical copy is a separate document within the meaning of separate document. A draft or non-identical copy is a separate document within the meaning of
this term.this term.
2. The term 2. The term “communication”"communication" means each manner or means of disclosure or exchange of means each manner or means of disclosure or exchange of
information, regardless of means utilized, whether oral, electronic, by document or otherwise, information, regardless of means utilized, whether oral, electronic, by document or otherwise,
and whether face to face, in a meeting, by telephone, mail, telexes, discussions, releases, and whether face to face, in a meeting, by telephone, mail, telexes, discussions, releases,
personal delivery, or otherwise.personal delivery, or otherwise.
3. The terms 3. The terms “and” and “or”"and" and "or" shall be construed broadly and either conjunctively or disjunctively shall be construed broadly and either conjunctively or disjunctively
to bring within the scope of this subpoena any information which might otherwise be construed to bring within the scope of this subpoena any information which might otherwise be construed
to be outside its scope. The singular includes plural number, and vice versa. The masculine to be outside its scope. The singular includes plural number, and vice versa. The masculine
includes the feminine and neuter genders.includes the feminine and neuter genders.
4. The term 4. The term “"White HouseWhite House”" refers to the Executive Office of the President and all of its units refers to the Executive Office of the President and all of its units
including, without limitation, the Office of Administration, the White House Office, the Office including, without limitation, the Office of Administration, the White House Office, the Office
of the Vice President, the Office of Science and Technology Policy, the Office of Management of the Vice President, the Office of Science and Technology Policy, the Office of Management
and Budget, the United States Trade Representative, the Office of Public Liaison, the Office of and Budget, the United States Trade Representative, the Office of Public Liaison, the Office of
Correspondence, the Office of the Deputy Chief of Staff for Policy and Political Affairs, the Correspondence, the Office of the Deputy Chief of Staff for Policy and Political Affairs, the
Office of the Deputy Chief of Staff for White House Operations, the Domestic Policy Council, Office of the Deputy Chief of Staff for White House Operations, the Domestic Policy Council,
the Office of Federal Procurement Policy, the Office of Intergovernmental Affairs, the Office the Office of Federal Procurement Policy, the Office of Intergovernmental Affairs, the Office
of Legislative Affairs, Media Affairs, the National Economic Council, the Office of Policy of Legislative Affairs, Media Affairs, the National Economic Council, the Office of Policy
Development, the Office of Political Affairs, the Office of Presidential Personnel, the Office of Development, the Office of Political Affairs, the Office of Presidential Personnel, the Office of
the Press Secretary, the Office of Scheduling and Advance, the Council of Economic Advisors, the Press Secretary, the Office of Scheduling and Advance, the Council of Economic Advisors,
the Council on Environmental Quality, the Executive Residence, the Presidentthe Council on Environmental Quality, the Executive Residence, the President’'s Foreign s Foreign
Intelligence Advisory Board, the National Security Council, the Office of National Drug Intelligence Advisory Board, the National Security Council, the Office of National Drug
Control, and the Office of Policy Development.Control, and the Office of Policy Development.
March 10, 1998March 10, 1998
Custodian of DocumentsCustodian of Documents
International Brotherhood of TeamstersInternational Brotherhood of Teamsters
25 Louisiana Avenue, N.W.25 Louisiana Avenue, N.W.
Washington, D.C. 20001Washington, D.C. 20001
SCHEDULE A
1. All organizational charts and personnel rosters for the International Brotherhood of Teamsters 1. All organizational charts and personnel rosters for the International Brotherhood of Teamsters
(“Teamsters” or “IBT”("Teamsters" or "IBT"), including the DRIVE PAC, in effect during calendar years 1991 ), including the DRIVE PAC, in effect during calendar years 1991
through 1997.through 1997.
2. All IBT operating, finance, and administrative 2. All IBT operating, finance, and administrative manuals in effect during calendar years 1991 in effect during calendar years 1991
through 1997, including, but not limited to those that set forth (1) operating policies, practices, through 1997, including, but not limited to those that set forth (1) operating policies, practices,
and procedures; (2) internal financial practices and reporting requirements; and (3) and procedures; (2) internal financial practices and reporting requirements; and (3)
authorization, approval, and review responsibilities.authorization, approval, and review responsibilities.
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3. All annual audit reports of the IBT for the years 1991 through 1996 performed by the auditing 3. All annual audit reports of the IBT for the years 1991 through 1996 performed by the auditing
firm of Grant Thornton.firm of Grant Thornton.
4. All IBT annual reports to its membership and the public for years 1991 through 1997, including 4. All IBT annual reports to its membership and the public for years 1991 through 1997, including
copies of IBT annual audited financial statements certified to by independent public copies of IBT annual audited financial statements certified to by independent public
accountants.accountants.
5. All books and records showing receipts and expenditures, assets and liabilities, profits and 5. All books and records showing receipts and expenditures, assets and liabilities, profits and
losses, and all other records used for recording the financial affairs of the IBT including, losses, and all other records used for recording the financial affairs of the IBT including,
journals (or other books of original entry) and ledgers including cash receipts journals, cash journals (or other books of original entry) and ledgers including cash receipts journals, cash
disbursements journals, revenue journals, general journals, subledgers, and workpapers disbursements journals, revenue journals, general journals, subledgers, and workpapers
reflecting accounting entries.reflecting accounting entries.
6. All Federal Income Tax returns filed by the IBT for years 1991 through 1997.6. All Federal Income Tax returns filed by the IBT for years 1991 through 1997.
7. All minutes of the General Board, Executive Board, Executive Council, and all Standing 7. All minutes of the General Board, Executive Board, Executive Council, and all Standing
Committees, including any internal ethics committees formed to investigate misconduct and Committees, including any internal ethics committees formed to investigate misconduct and
corruption, and all handouts and reports prepared and produced at each Committee meeting.corruption, and all handouts and reports prepared and produced at each Committee meeting.
8. All documents referring or relating to, or containing information about, any contribution, 8. All documents referring or relating to, or containing information about, any contribution,
donation, expenditure, outlay, in-kind assistance, transfer, loan, or grant (from DRIVE, DRIVE donation, expenditure, outlay, in-kind assistance, transfer, loan, or grant (from DRIVE, DRIVE
E&L fund, or IBT general treasury) to any of the following entities/organizations:E&L fund, or IBT general treasury) to any of the following entities/organizations:
a. Citizen Actiona. Citizen Action
b. Campaign for a Responsible Congressb. Campaign for a Responsible Congress
c. Project Votec. Project Vote
d. National Council of Senior Citizensd. National Council of Senior Citizens
e. Vote Now e. Vote Now ‘96
'96
f. AFL-CIOf. AFL-CIO
g. AFSCMEg. AFSCME
h. Democratic National Committeeh. Democratic National Committee
i. Democratic Senatorial Campaign Committee (i. Democratic Senatorial Campaign Committee (“DSCC”)
"DSCC")
j. Democratic Congressional Campaign Committee (j. Democratic Congressional Campaign Committee (“DCCC”)
"DCCC")
k. State Democratic Partiesk. State Democratic Parties
1. Clinton-Gore 1. Clinton-Gore ‘96
'96
m. SEIUm. SEIU
9. All documents referring or relating to, or containing information about any of the following 9. All documents referring or relating to, or containing information about any of the following
individuals/entities:individuals/entities:
a. Teamsters for a Corruption Free Uniona. Teamsters for a Corruption Free Union
b. Teamsters for a Democratic Unionb. Teamsters for a Democratic Union
c. Concerned Teamsters 2000c. Concerned Teamsters 2000
d. Martin Davisd. Martin Davis
e. Michael Ansarae. Michael Ansara
f. Jere Nashf. Jere Nash
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g. Share Groupg. Share Group
h. November Grouph. November Group
i. Terrence McAuliffei. Terrence McAuliffe
j. Charles Blitzj. Charles Blitz
k. New Partyk. New Party
1. James P. Hoffa Campaign1. James P. Hoffa Campaign
m. Delancy Printingm. Delancy Printing
n. Axis Enterprisesn. Axis Enterprises
o. Barbara Arnoldo. Barbara Arnold
p. Peter McGourtyp. Peter McGourty
q. Charles McDonaldq. Charles McDonald
r. Theodore Kheelr. Theodore Kheel
10. All documents referring or relating to, or containing information on about, communications 10. All documents referring or relating to, or containing information on about, communications
between the Teamsters and the White House regarding any of the following issues:between the Teamsters and the White House regarding any of the following issues:
a. United Parcel Service Strikea. United Parcel Service Strike
b. Diamond Walnut Company Strikeb. Diamond Walnut Company Strike
c. Pony Express Company organizing effortsc. Pony Express Company organizing efforts
d. Davis Bacon Actd. Davis Bacon Act
e. NAFTA Border Crossingse. NAFTA Border Crossings
f. Ron Carey reelection campaignf. Ron Carey reelection campaign
g. IBT support to 1996 federal election campaigns.g. IBT support to 1996 federal election campaigns.
i. All documents referring or relating to, or containing information about, communications i. All documents referring or relating to, or containing information about, communications
between the Teamsters and the Federal Election Commission.between the Teamsters and the Federal Election Commission.
12. All documents referring or relating to, or containing information about, communications 12. All documents referring or relating to, or containing information about, communications
between the Teamsters and the Democratic National Committee, DSCC, or DCCC.between the Teamsters and the Democratic National Committee, DSCC, or DCCC.
13. All documents referring or relating to, or containing information about, communications 13. All documents referring or relating to, or containing information about, communications
between the Teamsters and the Clinton-Gore between the Teamsters and the Clinton-Gore ‘'96 Campaign Committee.96 Campaign Committee.
14. All documents referring or relating to, or containing information about, policies and 14. All documents referring or relating to, or containing information about, policies and
procedures in effect during 1996 regarding the approval of expenditures from the IBT general procedures in effect during 1996 regarding the approval of expenditures from the IBT general
treasury, DRIVE E&L fund, and DRIVE PAC.treasury, DRIVE E&L fund, and DRIVE PAC.
15. All documents referring or relating to, or containing information about the retention by the 15. All documents referring or relating to, or containing information about the retention by the
IBT of the law firm Covington & Burling and/or Charles Ruff.IBT of the law firm Covington & Burling and/or Charles Ruff.
16. All documents referring or relating to, or containing information about work for the IBT 16. All documents referring or relating to, or containing information about work for the IBT
performed by the firm Palladino & Sutherland and/or Jack Palladino.performed by the firm Palladino & Sutherland and/or Jack Palladino.
17. All documents referring or relating to, or containing information about work for the IBT 17. All documents referring or relating to, or containing information about work for the IBT
performed by Ace Investigations and/or Guerrieri, Edmund, and James.performed by Ace Investigations and/or Guerrieri, Edmund, and James.
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18. All documents referring or relating to, or containing information about IBT involvement in 18. All documents referring or relating to, or containing information about IBT involvement in
the 1995-1996 Oregon Senate race (Ron Wyden vs. Gordon Smith).the 1995-1996 Oregon Senate race (Ron Wyden vs. Gordon Smith).
19. All documents referring or relating to, or containing information about, Ron Carey19. All documents referring or relating to, or containing information about, Ron Carey’s
's campaign for reelection as general president of the Teamsters.campaign for reelection as general president of the Teamsters.
20. All documents referring or relating to, or containing information about organization, planning, 20. All documents referring or relating to, or containing information about organization, planning,
and operation of the 1996 IBT Convention.and operation of the 1996 IBT Convention.
21. All documents referring or relating to, or containing information about the following:21. All documents referring or relating to, or containing information about the following:
a. Trish Hoppeya. Trish Hoppey
b. John Latzb. John Latz
c. any individual with the last name of c. any individual with the last name of “Golovner”.
"Golovner".
d. Convention Management Group.d. Convention Management Group.
22. All documents referring or relating to, or containing information about the Household Finance 22. All documents referring or relating to, or containing information about the Household Finance
Corporation.Corporation.
23. All documents referring or relating to, or containing information about, any 23. All documents referring or relating to, or containing information about, any “"affinity credit affinity credit
card”card" program or other credit card program sponsored by or participated in by the IBT. program or other credit card program sponsored by or participated in by the IBT.
24. A list of all bank accounts held by the International Brotherhood of Teamsters including the 24. A list of all bank accounts held by the International Brotherhood of Teamsters including the
name of the bank, account number, and bank address.name of the bank, account number, and bank address.
25. All documents referring or relating to, or containing information about, payments made by the 25. All documents referring or relating to, or containing information about, payments made by the
IBT to any official or employee of the Independent Review Board.IBT to any official or employee of the Independent Review Board.
26. Unless otherwise indicated, the time period covered by this subpoena is between January 26. Unless otherwise indicated, the time period covered by this subpoena is between January
1991 and December 1997.1991 and December 1997.
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Example Congressional Oversight Manual
Appendix B. Example Congressional Oversight
Letter
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Appendix C. Letter
Congressional Requests
THE WHITE HOUSE
November 4, 1982
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND
AGENCIES
AGENCIES SUBJECT: Procedures Governing Responses to Congressional Request for Information
The policy of this administration is to comply with Congressional Requests for information to the The policy of this administration is to comply with Congressional Requests for information to the
fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.
While this Administration, like its predecessors, has an obligation to protect the confidentiality of While this Administration, like its predecessors, has an obligation to protect the confidentiality of
some communications, executive privilege will be asserted only in the most compelling some communications, executive privilege will be asserted only in the most compelling
circumstances, and only after careful review demonstrates that assertion of the privilege is circumstances, and only after careful review demonstrates that assertion of the privilege is
necessary. Historically, good faith negotiations between Congress and the executive branch has necessary. Historically, good faith negotiations between Congress and the executive branch has
minimized the need for invoking executive privilege, and this tradition of accommodation should minimized the need for invoking executive privilege, and this tradition of accommodation should
continue as the primary means of resolving conflicts between the Branches. To ensure that every continue as the primary means of resolving conflicts between the Branches. To ensure that every
reasonable accommodation is made to the needs of Congress, executive privilege shall not be reasonable accommodation is made to the needs of Congress, executive privilege shall not be
invoked without specific Presidential authorization.invoked without specific Presidential authorization.
The Supreme Court has held that the Executive Branch may occasionally find it necessary and The Supreme Court has held that the Executive Branch may occasionally find it necessary and
proper to preserve the confidentiality of national security secrets, deliberative communications proper to preserve the confidentiality of national security secrets, deliberative communications
that form a part of the decision-making process, or other information important to the discharge that form a part of the decision-making process, or other information important to the discharge
of the Executive Branchof the Executive Branch’'s constitutional responsibilities. Legitimate and appropriate claims of s constitutional responsibilities. Legitimate and appropriate claims of
privilege should not thoughtlessly be waived. However, to ensure that this Administration acts privilege should not thoughtlessly be waived. However, to ensure that this Administration acts
responsibly and consistently in the exercise of its duties, with due regard for the responsibilities responsibly and consistently in the exercise of its duties, with due regard for the responsibilities
and prerogatives of Congress, the following procedures shall be followed whenever and prerogatives of Congress, the following procedures shall be followed whenever
Congressional requests for information raise concerns regarding the confidentiality of the Congressional requests for information raise concerns regarding the confidentiality of the
information sought:information sought:
1. Congressional requests for information shall be complied with as promptly and as fully as 1. Congressional requests for information shall be complied with as promptly and as fully as
possible, unless it is determined that compliance raises a substantial question of executive possible, unless it is determined that compliance raises a substantial question of executive
privilege. A privilege. A“"substantial question of executive privilegesubstantial question of executive privilege”" exists if disclosure of the information exists if disclosure of the information
requested might significantly impair the national security (including the conduct of foreign requested might significantly impair the national security (including the conduct of foreign
relations), the deliberative processes of the Executive Branch or other aspects of the relations), the deliberative processes of the Executive Branch or other aspects of the
performance of the Executive Branchperformance of the Executive Branch’'s constitutional duties.s constitutional duties.
2. If the head of an executive department or agency (2. If the head of an executive department or agency (“"Department HeadDepartment Head”") believes, after ) believes, after
consultation with department counsel, that compliance with a Congressional request for consultation with department counsel, that compliance with a Congressional request for
information raises a substantial question of executive privilege, he shall promptly notify and information raises a substantial question of executive privilege, he shall promptly notify and
consult with the Attorney General through the Assistant Attorney General for the Office of consult with the Attorney General through the Assistant Attorney General for the Office of
Legal Counsel, and shall also promptly notify and consult with the Counsel to the President. If Legal Counsel, and shall also promptly notify and consult with the Counsel to the President. If
the information requested of a department or agency derives in whole or in part or from the information requested of a department or agency derives in whole or in part or from
information received from another department or agency, the latter entity shall also be information received from another department or agency, the latter entity shall also be
consulted as to whether disclosure of the information raises a substantial question of executive consulted as to whether disclosure of the information raises a substantial question of executive
privilege.privilege.
3. Every effort shall be made to comply with the Congressional request in a manner consistent 3. Every effort shall be made to comply with the Congressional request in a manner consistent
with the legitimate needs of the Executive Branch. The Department Head, the Attorney with the legitimate needs of the Executive Branch. The Department Head, the Attorney
“"General and the Counsel to the President may, in the exercise of their discretion in the General and the Counsel to the President may, in the exercise of their discretion in the
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circumstances, determine that executive privilege shall not be invoked and release the circumstances, determine that executive privilege shall not be invoked and release the
requested information.requested information.
4. If the Department Head, the Attorney General or the Counsel to the President believes, after 4. If the Department Head, the Attorney General or the Counsel to the President believes, after
consultation, that the circumstances justify invocation of executive privilege, the issue shall be consultation, that the circumstances justify invocation of executive privilege, the issue shall be
presented to the President by the Counsel to the President, who will advise the Department presented to the President by the Counsel to the President, who will advise the Department
Head and the Attorney General of the PresidentHead and the Attorney General of the President’'s decision.s decision.
5. Pending a final Presidential decision on the matter, the Department Head shall request the 5. Pending a final Presidential decision on the matter, the Department Head shall request the
Congressional body to hold its request for the information in abeyance. The Department Head Congressional body to hold its request for the information in abeyance. The Department Head
shall expressly indicate that the purpose of this request is to protect the privilege pending a shall expressly indicate that the purpose of this request is to protect the privilege pending a
Presidential decision, claim of privilege.Presidential decision, claim of privilege.
6. If the President decides to invoke executive privilege, the Department Head shall advise the 6. If the President decides to invoke executive privilege, the Department Head shall advise the
requesting Congressional body that the claim of executive privilege is being made with the requesting Congressional body that the claim of executive privilege is being made with the
specific approval of the President.specific approval of the President.
Any questions concerning these procedures or related matters should be addressed to the Attorney Any questions concerning these procedures or related matters should be addressed to the Attorney
General, through the Assistant Attorney General for the Office of Legal Counsel, and to the General, through the Assistant Attorney General for the Office of Legal Counsel, and to the
Counsel to the President.Counsel to the President.
Ronald Reagan
THE WHITE HOUSE
September 28, 1994
MEMORANDUM FOR ALL EXECUTIVE DEPARTMENT AND AGENCY GENERAL
COUNSELS
COUNSELS FROM: LLOYD N. CUTLER, SPECIAL COUNSEL TO THE PRESIDENT
SUBJECT: Congressional Requests to Departments and Agencies for Documents Protected
by Executive Privilege
The policy of this Administration is to comply with congressional requests for information to the The policy of this Administration is to comply with congressional requests for information to the
fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.
While this Administration, like its predecessors, has an obligation to protect the confidentiality of While this Administration, like its predecessors, has an obligation to protect the confidentiality of
core communications, executive privilege will be asserted only after careful review demonstrates core communications, executive privilege will be asserted only after careful review demonstrates
that assertion of the privilege is necessary to protect Executive Branch prerogatives.that assertion of the privilege is necessary to protect Executive Branch prerogatives.
The doctrine of executive privilege protects the confidentiality of deliberations within the White The doctrine of executive privilege protects the confidentiality of deliberations within the White
House, including its policy councils, as well as communications between the White House and House, including its policy councils, as well as communications between the White House and
executive departments and agencies. Executive privilege applies to written and oral executive departments and agencies. Executive privilege applies to written and oral
communications between and among the White House, its policy councils and Executive Branch communications between and among the White House, its policy councils and Executive Branch
agencies, as well as to documents that describe or prepares for such communications (e.g.agencies, as well as to documents that describe or prepares for such communications (e.g.
“, "talking pointstalking points”"). This has been the view expressed by all recent White House Counsels. In ). This has been the view expressed by all recent White House Counsels. In
circumstances involving communications relating to investigations of personal wrongdoing by circumstances involving communications relating to investigations of personal wrongdoing by
government officials, it is our practice not to assert executive privilege, either, in judicial government officials, it is our practice not to assert executive privilege, either, in judicial
proceedings or in congressional investigations and hearings. Executive privilege must always be proceedings or in congressional investigations and hearings. Executive privilege must always be
weighed against other competing governmental interests, including the judicial need to obtain weighed against other competing governmental interests, including the judicial need to obtain
relevant evidence, especially in criminal proceedings, and the congressional need to make factual relevant evidence, especially in criminal proceedings, and the congressional need to make factual
findings for legislative and oversight purposes.findings for legislative and oversight purposes.
In the last resort, this balancing is usually conducted by the courts. However, when executive In the last resort, this balancing is usually conducted by the courts. However, when executive
privilege is asserted against a congressional request for documents, the courts usually decline to privilege is asserted against a congressional request for documents, the courts usually decline to
intervene until after the other two branches have exhausted the possibility of working out a intervene until after the other two branches have exhausted the possibility of working out a
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satisfactory accommodation. It is our policy to work out such an accommodation whenever we satisfactory accommodation. It is our policy to work out such an accommodation whenever we
can, without unduly interfering with the Presidentcan, without unduly interfering with the President’'s need to conduct frank exchange of views s need to conduct frank exchange of views
with his principal advisors.with his principal advisors.
Historically, good faith negotiations between Congress and the Executive Branch have minimized Historically, good faith negotiations between Congress and the Executive Branch have minimized
the need for invoking executive privilege.the need for invoking executive privilege.
Executive privilege belongs to the President, not individual departments or agencies. It is Executive privilege belongs to the President, not individual departments or agencies. It is
essential that all requests to departments and agencies for information of the type described above essential that all requests to departments and agencies for information of the type described above
be referred to the White House Counsel before any information is furnished. Departments and be referred to the White House Counsel before any information is furnished. Departments and
agencies receiving such request should therefore follow the procedures set forth below, designed agencies receiving such request should therefore follow the procedures set forth below, designed
to ensure that this Administration acts responsibly and consistently with respect to executive to ensure that this Administration acts responsibly and consistently with respect to executive
privilege issues, with due regard for the responsibilities and prerogatives of Congress:privilege issues, with due regard for the responsibilities and prerogatives of Congress:
First
First, any document created in the White House, including a White House policy council, or , any document created in the White House, including a White House policy council, or
in a department or agency, that contains the deliberations of, or advice to or from, the White in a department or agency, that contains the deliberations of, or advice to or from, the White
House, should be presumptively treated as protected by executive privilege. This is so House, should be presumptively treated as protected by executive privilege. This is so
regardless of the documentregardless of the document’'s location at the time of the request or whether it originated in the s location at the time of the request or whether it originated in the
White House or in a department or agency.White House or in a department or agency.
Second
Second, a department or agency receiving a request for any such document should promptly , a department or agency receiving a request for any such document should promptly
notify the White House Counselnotify the White House Counsel’'s Office, and direct any inquiries regarding such a document s Office, and direct any inquiries regarding such a document
to the White House Counselto the White House Counsel’'s Office.s Office.
Third
Third, the White House Counsel, the White House Counsel’'s Office, working together with the department or agency s Office, working together with the department or agency
(and, where appropriate, the DOJ), will discuss the request with appropriate congressional (and, where appropriate, the DOJ), will discuss the request with appropriate congressional
representatives to determine whether a mutually satisfactory recommendation is available.representatives to determine whether a mutually satisfactory recommendation is available.
Fourth
Fourth, if efforts to reach a mutually satisfactory accommodation are unsuccessful, and if , if efforts to reach a mutually satisfactory accommodation are unsuccessful, and if
release of the document would pass a substantial question of executive privilege, the Counsel release of the document would pass a substantial question of executive privilege, the Counsel
to the President will consult with the DOJ and other affected agencies to determine whether to the President will consult with the DOJ and other affected agencies to determine whether
to recommend that the President invoke the privilege.to recommend that the President invoke the privilege.
We believe this policy will facilitate the resolution of issues relating to disclosures to Congress We believe this policy will facilitate the resolution of issues relating to disclosures to Congress
and maximize the opportunity for reaching mutually satisfactory accommodations with Congress. and maximize the opportunity for reaching mutually satisfactory accommodations with Congress.
We will of course try to cooperate with reasonable congressional requests for information in ways We will of course try to cooperate with reasonable congressional requests for information in ways
that preserve the Presidentthat preserve the President’'s ability to exchange frank advice with his immediate staff and the s ability to exchange frank advice with his immediate staff and the
heads of the executive departments and agencies.
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Author Information
Ben Wilhelm, Coordinator
Sarah J. Eckman
Analyst in Government Organization and
Analyst in American National Government
Management
Todd Garvey, Coordinator
Mark J. Oleszek
Legislative Attorney
Analyst on Congress and the Legislative Process
Christopher M. Davis, Coordinator
R. Eric Petersen
Analyst on Congress and the Legislative Process
Specialist in American National Government
Walter J. Oleszek
Jacob R. Straus
Senior Specialist in American National Government Specialist on the Congress
Clinton T. Brass
Meghan M. Stuessy
Specialist in Government Organization and
Analyst in Government Organization and
Management
Management
Ida A. Brudnick
Taylor N. Riccard
Specialist on the Congress
Analyst in Government Organization and
Management
Maeve P. Carey
Specialist in Government Organization and
Management
Acknowledgments
Over time, authors of this report have included current and former CRS attorneys and analysts Alissa M.
Dolan, William T. Egar, Louis Fisher, Kathryn A. Francis, Rick Greenwood, L. Elaine Halchin, T. J.
Halstead, Frederick M. Kaiser, Mort Rosenberg, Wendy Ginsberg, and Todd B. Tatelman.
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.
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In 2025, the Trump Administration terminated some functions and programs of the United States Agency for International Development (USAID) and transferred others to the Department of State as part of a general wind down of the USAID's operations. See CRS In Focus IF10261, U.S. Agency for International Development: An Overview, by Emily M. McCabe. Notwithstanding those changes, the USAID OIG continues to operate as authorized by the Inspector General Act of 1978 and provides oversight of foreign assistance programs and the Millennium Challenge Corporation. To that end, the OIG received an appropriation of $62.5 million for FY2026. See Title II of Division F of P.L. 119-75 (Consolidated Appropriations Act, 2026).
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Updated March 27, 2026 (RL30240) Jump to Main Text of Report
Contents
- Introduction to Congressional Oversight and the Oversight Manual
- The Oversight Manual
- How to Use This Manual
- Defining Oversight
- The Oversight Toolbox
- Police Patrols and Fire Alarms
- The Purposes of Oversight of the Executive Branch
- Congress as an Oversight Body
- Authority to Conduct Oversight
- Constitutional Provisions
- Statutes and Oversight
- House and Senate Rules on Oversight
- Congressional Participants in Oversight
- Oversight and the Committee System
- Identifying Relevant Committee Jurisdiction
- General Techniques of Encouraging Oversight Coordination
- Development and Execution of Oversight Projects
- Question 1: Which Issues Warrant Oversight?
- Question 2: How to Get the Desired Information?
- Question 3: What Can Be Done with This Information?
- Oversight Through Other Congressional Activities
- Investigative Oversight
- Historical Background
- Constitutional Authority to Conduct Oversight and Investigative Inquiries
- The Constitutional Scope of the Investigative Power: Legislative Purpose
- Legislative Purpose and Investigations Involving the President
- Authority of Congressional Committees
- Jurisdiction
- Committee Rules
- Legal Tools Available for Oversight and Investigations
- Hearings
- Deposition Authority
- The Subpoena Power
- Responding to Noncompliance: Subpoena Enforcement
- Criminal Provisions Protecting the Investigative Power
- Limitations on Congressional Authority
- Constitutional Limitations
- Common-Law Privileges
- Executive Privilege
- Statutory Limits on Congressional Access to Information
- Classified Material
- Individual Member Authority to Conduct Oversight and Investigations
- The Seven Member Statute: 5 U.S.C. § 2954
- Specialized Investigations
- Select Oversight Tools and Techniques
- Orientation and Periodic Review Hearings with Agencies
- Casework
- Performance Audits by Inspectors General and GAO
- Monitoring the Federal Register
- Monitoring the Unified Agenda
- Special Studies and Investigations by Staff, Support Agencies, and Others
- Staff Investigations
- Support Agencies
- Outside Contractors, Consultants, and Detailees
- Investigative Commissions
- Communicating with the Media
- Press Gallery Offices
- Resolutions of Inquiry
- Limitations and Riders on Appropriations
- Legislative Veto and Advance Notice
- Independent Counsel
- Reporting, Testimony, Notice, and Consultation Requirements
- Testimony Requirements
- Notice and Prior Consultation
- Statutory Oversight Enablers
- Direct Expansions of Congress's Oversight Authority
- Anti-Gag Legislation and Whistleblower Protection Laws for Federal Employees
- Budget and Accounting Act of 1921 (P.L. 67-13)
- Legislative Reorganization Act of 1946 (P.L. 79-601)
- Intergovernmental Cooperation Act of 1968 (P.L. 90-577)
- Legislative Reorganization Act of 1970 (P.L. 91-510)
- Federal Advisory Committee Act of 1972 (P.L. 92-463, 5 U.S.C. ch. 10)
- Congressional Budget and Impoundment Control Act of 1974 (P.L. 93-344)
- Public Debt Limit Increase of 2010 (P.L. 111-139)
- GAO Access and Oversight Act of 2017 (P.L. 115-3)
- Indirect Expansions of Congress's Oversight Capabilities
- Federal Advisory Committee Act (P.L. 92-463, 5 U.S.C. Ch. 10)
- Federal Managers' Financial Integrity Act (FMFIA) of 1982 (P.L. 97-255)
- Chief Financial Officers Act of 1990, as Amended (P.L. 101-576, 31 U.S.C. ch. 9)
- Government Performance and Results Act (GPRA) (P.L. 103-62), as Amended by the GPRA Modernization Act (P.L. 111-352, 31 U.S.C. §1101 note)
- Paperwork Reduction Act of 1995 (P.L. 104-13, 44 U.S.C. ch. 35)
- Clinger-Cohen Act of 1996 (P.L. 104-106, 40 U.S.C. §§11101 et seq.)
- Federal Funding Accountability and Transparency Act, as Amended by the Digital Accountability and Transparency Act (P.L. 109-282, 31 U.S.C. §6101 note)
- Statutory Offices of Inspector General
- Inspector General Act of 1978
- Purpose and Role
- Types and Categories
- Authorities and Responsibilities
- Oversight Information Sources and Consultative Services
- Congressional Research Service
- Congressional Budget Office
- Government Accountability Office
- Offices of Senate Legal Counsel and House General Counsel
- Senate Legal Counsel
- House General Counsel
- Office of Management and Budget
- Budget Information
- Nonfederal Information Resources
Tables
Summary
Congress's legislative role does not end when it passes legislation. Oversight is fundamental to make sure that laws are working as intended and are being administered in an effective, efficient, and economical manner. The information that oversight can bring to Congress is essential as the body grapples with the complexities of American government and society.
A fundamental objective of the Congressional Oversight Manual is to assist Members, committees, and legislative staff in carrying out this vital legislative function. It is intended to provide a broad overview of the procedural, legal, and practical issues that are likely to arise as Congress conducts oversight. This includes information on the mechanics of oversight practice based on House and Senate rules, common investigative techniques, and an inventory of statutes that impact oversight activity. In addition, the Manual discusses important legal principles that have developed around Congress's oversight practice. The Manual is organized both to address specific questions and to support those seeking a general introduction to or broader understanding of oversight practice.
CRS first developed the Congressional Oversight Manual more than four decades ago following a December 1978 Workshop on Congressional Oversight and Investigations. The workshop was organized by a group of House and Senate committee aides from both parties and CRS at the request of the bipartisan House leadership. CRS produced the Manual with the assistance initially of a number of House committee staffers. In subsequent years, CRS has sponsored and conducted various oversight seminars for House and Senate staff and updated the Manual periodically.
Over the years, CRS has assisted many Members, committees, party leaders, and staff aides in the performance of the oversight function, providing consultative support on matters ranging from routine oversight and basic information gathering to the most complex and highest profile investigations conducted by Congress. Given the size and scope of the modern executive establishment, Congress's oversight role may be even more significant—and more demanding—than when Woodrow Wilson wrote in his classic Congressional Government (1885): "Quite as important as lawmaking is vigilant oversight of administration."
Introduction to Congressional Oversight and the Oversight Manual
Writing in 1993, the Joint Committee on the Organization of Congress defined Writing in 1993, the Joint Committee on the Organization of Congress defined congressionaloversight as the as the
public policy.public policy.
executive branch. Nonethelessexecutive branch. Nonetheless, it is the beginning, rather than an end, of understanding oversight it is the beginning, rather than an end, of understanding oversight
as it has been practiced since the First Congress. As outlined in this manual, the purposes, as it has been practiced since the First Congress. As outlined in this manual, the purposes,
practice, and tools of congressional oversight extend far beyond the confines of a simple practice, and tools of congressional oversight extend far beyond the confines of a simple
definition.definition.
The Oversight Manual
CRS has published the CRS has published the Congressional Oversight Manual since 1978. In that time, it has been one since 1978. In that time, it has been one
of the most comprehensive resources for information on congressional oversight and benefited of the most comprehensive resources for information on congressional oversight and benefited
from the experience and knowledge of dozens of CRS expertsfrom the experience and knowledge of dozens of CRS experts and attorneys. Since it was first published, the . Since it was first published, the
work of Congress and the resources available to conduct oversight have significantly changed. work of Congress and the resources available to conduct oversight have significantly changed.
For instance, the spread of interconnected information technology systems and the development For instance, the spread of interconnected information technology systems and the development
of the internet allow for more rapid and wide-scale collection and preservation of information of the internet allow for more rapid and wide-scale collection and preservation of information
about the activities of the government and have significantly increased the availability of that data about the activities of the government and have significantly increased the availability of that data
to both the public and Congress. In addition, Congress has developed a wide array of to both the public and Congress. In addition, Congress has developed a wide array of
management, oversight, and transparency laws that facilitate oversight, create internal controls management, oversight, and transparency laws that facilitate oversight, create internal controls
within the executive branch, and bring more government data to the public eye.within the executive branch, and bring more government data to the public eye.
that is useful to congressional stakeholders with that is useful to congressional stakeholders with
Oversight Manual serves as a broad introduction to the rules and techniques of effective oversight serves as a broad introduction to the rules and techniques of effective oversight
and the array of options available to Congress and its Members. For more experienced hands, theand the array of options available to Congress and its Members. For more experienced hands, the
Oversight Manual
techniques and recent developments on relevant issues.techniques and recent developments on relevant issues.
How to Use This Manual
The The Oversight Manual is intended to be a guidebook for congressional oversight. To that end is intended to be a guidebook for congressional oversight. To that end
organized the organized the Oversight Manual
contents.contents.
procedural parameters of Congressprocedural parameters of Congress
including its purposes and a high-level review of the oversight process.including its purposes and a high-level review of the oversight process.
every potential oversight issue or provide a precise answer to every question. This is particularly every potential oversight issue or provide a precise answer to every question. This is particularly
true when it comes to two topics that receive frequent attention. The first is what might be true when it comes to two topics that receive frequent attention. The first is what might be
thought of as the thought of as the
priorities and strategies. Such decisions turn, in large part, upon the expert judgment of Members priorities and strategies. Such decisions turn, in large part, upon the expert judgment of Members
and committees as to how their time and other resources would be best spent.and committees as to how their time and other resources would be best spent.
oversight. The oversight. The Oversight Manual focuses on current oversight practices. CRS experts focuses on current oversight practices. CRS experts and attorneys are are
available to answer specific questions related to any aspect of oversight, to support specific available to answer specific questions related to any aspect of oversight, to support specific
oversight activities, and to discuss potential adjustments to the rules and practices that enable oversight activities, and to discuss potential adjustments to the rules and practices that enable
oversight.oversight.
Defining Oversight
Oversight is an activity that can be defined in many different ways. For instance, CRS has defined Oversight is an activity that can be defined in many different ways. For instance, CRS has defined
congressional oversight as the review, monitoring, and supervision of federal agencies, programs, as the review, monitoring, and supervision of federal agencies, programs,
activities, and policy implementation.4 This definition encompasses a wide variety of potential legislative activities and does not restrict the oversight function to particular purposes, goals, or strategies.
The Legislative Reorganization Act of 1946 provides a more formalist definition by directing that committees
shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that purpose, shall study all pertinent reports and data submitted to the committee; and, for that purpose, shall study all pertinent reports and data submitted to theCongress by the agencies in the executive branch of the Government.Congress by the agencies in the executive branch of the Government.
during that era.during that era.
given the development of newgiven the development of new
definition, such as the one offered by definition, such as the one offered by
the modern understanding of the activities that make up congressional oversight. Aberbach the modern understanding of the activities that make up congressional oversight. Aberbach
defines oversight asdefines oversight as
of the programs and polices they administer, including review during program and policy of the programs and polices they administer, including review during program and policy
implementation as well as after the fact.implementation as well as after the fact.
useful when thinking about the variety of oversight techniques and strategies available to useful when thinking about the variety of oversight techniques and strategies available to
Congress. The Oversight Toolbox
congressional oversight is a collection of tools and congressional oversight is a collection of tools and
executive branch and gather information on its activities. This instrumental approach may make it executive branch and gather information on its activities. This instrumental approach may make it
particularly useful for particularly useful for
developing and executing effective developing and executing effective
creating a general environment of accountability and transparency creating a general environment of accountability and transparency
executive branchexecutive branch, and, ultimately, the public. Depending on the situation, it may be possible to achieve these goals through a . Depending on the situation, it may be possible to achieve these goals through a
variety of strategies, and their selection can be thought of as picking the best tool for the job.variety of strategies, and their selection can be thought of as picking the best tool for the job.
Police Patrols and Fire Alarms
model for organizing congressional oversight activities that remains a useful tool for model for organizing congressional oversight activities that remains a useful tool for
understanding oversightunderstanding oversight
oversight: oversight:
executive-agency activities, with the aim of detecting and remedying any violations of legislative executive-agency activities, with the aim of detecting and remedying any violations of legislative
goals and, by its surveillance, discouraging such violations.goals and, by its surveillance, discouraging such violations.
general oversight activity by Congress and is consistent with a classic understanding of legislative general oversight activity by Congress and is consistent with a classic understanding of legislative
oversight being conducted directly by committees and Members. One example of this type of oversight being conducted directly by committees and Members. One example of this type of
oversight is the agency budget hearings held on an annual basis by the appropriations oversight is the agency budget hearings held on an annual basis by the appropriations
subcommittees in both houses. Those hearings provide committee members an opportunity to subcommittees in both houses. Those hearings provide committee members an opportunity to
question leaders about the performance of their agencies, plans for the future, and specific issues question leaders about the performance of their agencies, plans for the future, and specific issues
of concern.of concern.
procedures, and informal practices that enable individual citizens and organized interest groups to procedures, and informal practices that enable individual citizens and organized interest groups to
examine administrative decisions, to charge executive agencies with violating congressional examine administrative decisions, to charge executive agencies with violating congressional
goals, and to seek remedies from agencies, courts, and Congress itself.goals, and to seek remedies from agencies, courts, and Congress itself.
creates a system that fosters transparency and uses other stakeholders and experts to monitor creates a system that fosters transparency and uses other stakeholders and experts to monitor
more activities with greater depth than Congress could on its own. When potential problems are more activities with greater depth than Congress could on its own. When potential problems are
identified, the expectation is that Congress will be better able to respond by focusing attention on identified, the expectation is that Congress will be better able to respond by focusing attention on
known issues and working from expert analysis that has already been conducted.known issues and working from expert analysis that has already been conducted.
2014 response to response to
Administration facilities and the deaths of veterans waiting for care on those lists. Media outletsAdministration facilities and the deaths of veterans waiting for care on those lists. Media outlets
reported on these issues.reported on these issues.
the agencythe agency
14 The Purposes of Oversight
of the Executive Branch Congress has engaged in oversight throughout its history. Investigating how the executive branch Congress has engaged in oversight throughout its history. Investigating how the executive branch
enforces laws, spends appropriations, and implements policies enables Congress to assess enforces laws, spends appropriations, and implements policies enables Congress to assess
whether federal agencies and departments are operating in an effective, efficient, and economical whether federal agencies and departments are operating in an effective, efficient, and economical
manner and to gather information that may inform legislation. The expansion of the national manner and to gather information that may inform legislation. The expansion of the national
government and bureaucracy has only increased Congressgovernment and bureaucracy has only increased Congress
check on and check the executive.check on and check the executive.
's policymaking role and its place under Article I in the U.S. constitutional system of checks and policymaking role and its place under Article I in the U.S. constitutional system of checks and
balances.balances.
St. Clair
command of General Arthur St. Clair (who was also the governor of the Northwest Territory) in battle near what command of General Arthur St. Clair (who was also the governor of the Northwest Territory) in battle near what
is now the Ohio-Indiana border. This battle, commonly referred to as St. Clairis now the Ohio-Indiana border. This battle, commonly referred to as St. Clair
generally considered to be the first formal investigation by Congress.generally considered to be the first formal investigation by Congress.
The House of Representatives of the Second Congress established a special committee to investigate the battle. The House of Representatives of the Second Congress established a special committee to investigate the battle.
The committee requested not only that General St. Clair and Secretary of War Henry Knox testify but also that The committee requested not only that General St. Clair and Secretary of War Henry Knox testify but also that
the Washington Administration produce documents related to the incident. Only a few years removed from the the Washington Administration produce documents related to the incident. Only a few years removed from the
debates of the Constitutional Convention and aware of the precedent-setting role of his Administration, President debates of the Constitutional Convention and aware of the precedent-setting role of his Administration, President
Washington and his Cabinet (which included, among others, Thomas Jefferson and Alexander Hamilton) Washington and his Cabinet (which included, among others, Thomas Jefferson and Alexander Hamilton)
carefully considered the appropriate response to the Houseconsidered the appropriate response to the House
concluded that the executive branch should concluded that the executive branch should
ought to refuse those the disclosure of which would injure the public.ought to refuse those the disclosure of which would injure the public.
of St. Clairof St. Clair
precedents that continue to shape the relationship between Congress and the presidency to this day. First is the precedents that continue to shape the relationship between Congress and the presidency to this day. First is the
assumption that compliance with congressional request should be the default for presidential Administrations. assumption that compliance with congressional request should be the default for presidential Administrations.
Second is the argument that the President may decline to provide certain information in some circumstances if Second is the argument that the President may decline to provide certain information in some circumstances if
critical issues, which helps both lawmakers and the general public to make informed judgments critical issues, which helps both lawmakers and the general public to make informed judgments
about executive performance. Woodrow Wilson, in his classic 1885 study about executive performance. Woodrow Wilson, in his classic 1885 study Congressional
Government, emphasized that the , emphasized that the
which it is most important it should understand and direct.which it is most important it should understand and direct.
variety of channels, organizations, and structures. These can include formal committee hearings variety of channels, organizations, and structures. These can include formal committee hearings
and informal Member contacts with executive officials, as well as casework performed by and informal Member contacts with executive officials, as well as casework performed by
Members, reviews and studies by staff and congressional support agencies, reports prepared by Members, reviews and studies by staff and congressional support agencies, reports prepared by
executive branch agencies, and studies prepared by nongovernmental entities such as academic executive branch agencies, and studies prepared by nongovernmental entities such as academic
institutions, private commissions, or think tanks.institutions, private commissions, or think tanks.
that determination are outlined below.that determination are outlined below.
Ensure Executive Compliance with Statutory Requirements and Legislative
Intent Congress delegates substantial discretionary authority to agency officials to engage in rulemaking Congress delegates substantial discretionary authority to agency officials to engage in rulemaking
and the management of the administrative state. To ensure that these officers faithfully execute and the management of the administrative state. To ensure that these officers faithfully execute
laws according to the intent of Congress, committees and Members can review the actions taken laws according to the intent of Congress, committees and Members can review the actions taken
and regulations formulated by departments and agencies.and regulations formulated by departments and agencies.
The Congressional Review Act
by federal agencies. by federal agencies.
activities to Congress. The activities to Congress. The
set of expedited or set of expedited or
overturn rules.overturn rules.
For more information For more information
Questions, by Maeve P. Carey and Christopher M. Davis; and CRS Report R45248, , by Maeve P. Carey and Christopher M. Davis; and CRS Report R45248, The Congressional Review Act:
Determining Which
A large federal bureaucracy makes it imperative for Congress to encourage and secure efficient A large federal bureaucracy makes it imperative for Congress to encourage and secure efficient
and effective program management and to make every dollar count toward the achievement of and effective program management and to make every dollar count toward the achievement of
program goals. A basic objective is strengthening federal programs through better managerial program goals. A basic objective is strengthening federal programs through better managerial
operations and service delivery. Such steps can improve the accountability of agency managers to operations and service delivery. Such steps can improve the accountability of agency managers to
Congress and enhance program performance.
Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud
Instances of fraud and other forms of corruption, wasteful expenditures, incompetent management, and the subversion of governmental processes can provoke legislative and public interest in oversight. This work frequently benefits from the audits and investigations of other oversight officials in the federal government, including inspectors general and the Government Accountability Office (GAO), which have specific mandates from Congress to address waste, fraud, and abuse in agencies.
Evaluate Program Performance
Systematic program performance evaluation remains an evolving technique of oversight. Modern Systematic program performance evaluation remains an evolving technique of oversight. Modernprogram evaluation uses social science and management methodologies—such as surveys, cost-program evaluation uses social science and management methodologies—such as surveys, cost-
benefit analyses, and efficiency studies—to assess the effectiveness of ongoing programs. benefit analyses, and efficiency studies—to assess the effectiveness of ongoing programs.
Information about program performance may be useful to Congress as it makes decisions about Information about program performance may be useful to Congress as it makes decisions about
the structure of government programs and the amount of funding they will receive.the structure of government programs and the amount of funding they will receive.
Prevent Executive Encroachment on Legislative Prerogatives and Powers
Many commentators, public policy analysts, and legislators state that Presidents and executive Many commentators, public policy analysts, and legislators state that Presidents and executive
officials may ignore or misinterpret congressional intent in various areas, such as the officials may ignore or misinterpret congressional intent in various areas, such as the
impoundment of funds, executive privilege, and war powers.impoundment of funds, executive privilege, and war powers.
constitutional checks and balances system—can redress what many in the public and Congress constitutional checks and balances system—can redress what many in the public and Congress
might view as executive arrogation of legislative prerogatives.might view as executive arrogation of legislative prerogatives.
Gather Information for Potential Legislation
One of the major functions of Congress involves developing, debating, and passing legislation. One of the major functions of Congress involves developing, debating, and passing legislation.
Congress gathers information to support its legislative work from a variety of sources, and Congress gathers information to support its legislative work from a variety of sources, and
information gathered from agencies in the process of oversight can be an important part of that information gathered from agencies in the process of oversight can be an important part of that
process. Senator Sam Ervin described the importance of oversight to legislating as follows:process. Senator Sam Ervin described the importance of oversight to legislating as follows:
additional laws are additional laws are
20 Assess Agency or Officials
Program Objectives
CongressCongress
objectives can be accomplished in various ways. Numerous laws require agencies to submit objectives can be accomplished in various ways. Numerous laws require agencies to submit
reports to Congress. Some of these are regular, occurring annually or semiannually, for instance, reports to Congress. Some of these are regular, occurring annually or semiannually, for instance,
while others are activated by a specific event, development, or set of conditions. Reporting while others are activated by a specific event, development, or set of conditions. Reporting
requirements may promote self-evaluation by the agency. Organizations outside of Congress—requirements may promote self-evaluation by the agency. Organizations outside of Congress—
commissions—also advise Members and committees on how well federal agencies are working.commissions—also advise Members and committees on how well federal agencies are working.
this period, GAO has added and removed a number of programs and operations from what is commonly referred this period, GAO has added and removed a number of programs and operations from what is commonly referred
to as the High-Risk List based on evaluation criteria developed by GAO. Typically, GAO publishes an update to its to as the High-Risk List based on evaluation criteria developed by GAO. Typically, GAO publishes an update to its
report on the High-Risk List every two years, coinciding with the start of a new Congress. The High-Risk List has report on the High-Risk List every two years, coinciding with the start of a new Congress. The High-Risk List has
become a popular tool for Congress to identify programs and other activities that may benefit from additional become a popular tool for Congress to identify programs and other activities that may benefit from additional
monitoring by committees.21 Review and Determine Federal Financial Priorities
Congress exercises some of its most effective oversight through the appropriations process, which Congress exercises some of its most effective oversight through the appropriations process, which
provides the opportunity to assess agency and departmental expenditures in detail. Most federal provides the opportunity to assess agency and departmental expenditures in detail. Most federal
agencies and programs are required to receive recurring reauthorizations—on an annual, two-agencies and programs are required to receive recurring reauthorizations—on an annual, two-
year, five-year, or other basis—giving authorizing committees the opportunity to review agency year, five-year, or other basis—giving authorizing committees the opportunity to review agency
activities, operations, and procedures. As a consequence of these oversight efforts, Congress can activities, operations, and procedures. As a consequence of these oversight efforts, Congress can
abolish or curtail obsolete or ineffective programs by cutting off or reducing funds. Congress abolish or curtail obsolete or ineffective programs by cutting off or reducing funds. Congress
might also increase funding for effective programs.might also increase funding for effective programs.
Protect Individual Rights and Liberties
Congressional oversight can help safeguard the rights and liberties of citizens and others. By Congressional oversight can help safeguard the rights and liberties of citizens and others. By
revealing abuses of authority, oversight hearings and other efforts can halt executive misconduct revealing abuses of authority, oversight hearings and other efforts can halt executive misconduct
and help prevent its recurrence through, for example, new legislation or indirectly by heightening and help prevent its recurrence through, for example, new legislation or indirectly by heightening
public awareness.public awareness.
Draw Public Attention to Issues
Congressional oversight can provide Congress and its Members with the opportunity to highlight Congressional oversight can provide Congress and its Members with the opportunity to highlight
issues, activities of the government, and other events that they wish to bring to the attention of the issues, activities of the government, and other events that they wish to bring to the attention of the
public. Congress may believe that it will be better able to achieve a goal if public pressure or public. Congress may believe that it will be better able to achieve a goal if public pressure or
energy is directed to a particular matter and that oversight activities may be one way to generate energy is directed to a particular matter and that oversight activities may be one way to generate
that attention.that attention.
Other Purposes
The purposes of oversight can also be stated in more precise terms. Like the general purposes The purposes of oversight can also be stated in more precise terms. Like the general purposes
noted above, these more specific purposes unavoidably overlap because of the numerous and noted above, these more specific purposes unavoidably overlap because of the numerous and
multifaceted dimensions of oversight. A brief list includes the following:multifaceted dimensions of oversight. A brief list includes the following:
are meeting the needs of service recipients Thoughts on Oversight and Its Rationales from...
Justice on the first Supreme Court:Justice on the first Supreme Court:
into grievances, arising both from men and things.into grievances, arising both from men and things.
refer to the review and investigation of the executive branch:refer to the review and investigation of the executive branch:
It is the proper duty of a representative body to look diligently into every affair of government and It is the proper duty of a representative body to look diligently into every affair of government and
to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the
wisdom and wisdom and
The informing function of Congress should be preferred even to its legislative function.The informing function of Congress should be preferred even to its legislative function.
the light of publicity on its acts; to compel a the light of publicity on its acts; to compel a
one considers questionable.one considers questionable.
Congress as an Oversight Body
This section lays out several key issues related to CongressThis section lays out several key issues related to Congress
with a broad discussion of the constitutional sources of Congresswith a broad discussion of the constitutional sources of Congress
proceeds to more specific discussion about how Congress operates as an proceeds to more specific discussion about how Congress operates as an
oversight as a practice and lays out one way to model oversight as a process. Finallyoversight as a practice and lays out one way to model oversight as a process. Finally, the section the section
concludes with concludes with
branch.branch.
Authority to Conduct Oversight
CongressCongress
Supreme Court decisions, federal laws, and House and Senate rules. Oversight is an implicit Supreme Court decisions, federal laws, and House and Senate rules. Oversight is an implicit
constitutional responsibility of Congress. According to historian Arthur Schlesinger Jr., constitutional responsibility of Congress. According to historian Arthur Schlesinger Jr.,
The power to make laws implied the power to see whether they were faithfully executed.The power to make laws implied the power to see whether they were faithfully executed.
Court decisions. For example, in Court decisions. For example, in Watkins v. United States,,
Congress to conduct investigations is inherent in the legislative process. That power is broad. It Congress to conduct investigations is inherent in the legislative process. That power is broad. It
possibly needed laws.possibly needed laws.
in the Constitution itself (e.g., the protection accorded witnesses under the Fifth Amendment in the Constitution itself (e.g., the protection accorded witnesses under the Fifth Amendment
against self-incrimination).against self-incrimination).
The Supreme Court on Congress
McGrain v. Daugherty, 273 U.S. 135, 177, 181-182 (1927): Congress, investigating the administration of the Congress, investigating the administration of the
U.S. Department of Justice (DOJ) during the Teapot Dome scandal, was considering a subject U.S. Department of Justice (DOJ) during the Teapot Dome scandal, was considering a subject
could be had or would be materially aided by the information which the investigation was calculated to elicit.could be had or would be materially aided by the information which the investigation was calculated to elicit.
with process to enforce it—is an essential and appropriate auxiliary to the legislative function.with process to enforce it—is an essential and appropriate auxiliary to the legislative function.
" Eastland v. United States Servicemen
the Court declared, the Court declared,
" Constitutional Provisions
and implicit provisions as and implicit provisions as
Law.Law.
review the financial practices and needs of federal agencies. The review the financial practices and needs of federal agencies. The
appropriations process allows Congress to exercise extensive control over the appropriations process allows Congress to exercise extensive control over the
activities of executive agencies. Congress can define the precise purposes for activities of executive agencies. Congress can define the precise purposes for
which money may be spent, adjust funding levels, and prohibit expenditures which money may be spent, adjust funding levels, and prohibit expenditures
for certain purposes.for certain purposes.
the authority to assign or reassign functions to departments and agencies and the authority to assign or reassign functions to departments and agencies and
grant new forms of authority and staff to administrators. Congress, in short, grant new forms of authority and staff to administrators. Congress, in short,
exercises ultimate authority over executive branch organization and generally exercises ultimate authority over executive branch organization and generally
over policy.over policy.
Congress a wide range of powers, such as the power to tax and coin money, Congress a wide range of powers, such as the power to tax and coin money,
regulate foreign and interstate commerce, declare war, provide for the regulate foreign and interstate commerce, declare war, provide for the
creation and maintenance of armed forces, and establish post offices.creation and maintenance of armed forces, and establish post offices.
26 Augmenting these specific powers is the Necessary and Proper Clause, Augmenting these specific powers is the Necessary and Proper Clause,
all Laws which shall be necessary and proper for carrying into Execution the all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.Government of the United States, or in any Department or Officer thereof.
activities established by law.activities established by law.
executive (or judicial) position but also provides an opportunity to examine executive (or judicial) position but also provides an opportunity to examine
the current policies and programs of an agency along with those policies and the current policies and programs of an agency along with those policies and
programs that the nominee intends to pursue.programs that the nominee intends to pursue.
inquiries into executive branch operations. Legislators often seek to know inquiries into executive branch operations. Legislators often seek to know
how effectively and efficiently programs are working, how well agency how effectively and efficiently programs are working, how well agency
officials are responding to legislative directives, and how the public officials are responding to legislative directives, and how the public
perceives the programs. The investigatory method helps to ensure a more perceives the programs. The investigatory method helps to ensure a more
responsible bureaucracy while supplying Congress with information needed responsible bureaucracy while supplying Congress with information needed
to formulate new legislation.to formulate new legislation.
to eliminate such misbehavior through the conviction and removal from to eliminate such misbehavior through the conviction and removal from
office of the offending individuals.office of the offending individuals.
heritage, oversight was not given explicit recognition in public law until enactment of the heritage, oversight was not given explicit recognition in public law until enactment of the
Legislative Reorganization Act of 1946Legislative Reorganization Act of 1946
committees to exercise committees to exercise
jurisdictions.jurisdictions.
oversight function directly and indirectly. Some of these statutes were designed to make executive oversight function directly and indirectly. Some of these statutes were designed to make executive
branch agencies more transparent. Others have established officials within agencies who are branch agencies more transparent. Others have established officials within agencies who are
required to perform certain routine oversight functions, including audits and investigations of required to perform certain routine oversight functions, including audits and investigations of
potential waste, fraud, abuse, or mismanagement. In practice, a large amount of Congresspotential waste, fraud, abuse, or mismanagement. In practice, a large amount of Congress
's oversight activity can be traced to information gathered or disclosed through these laws. In oversight activity can be traced to information gathered or disclosed through these laws. In
addition, Congress devotes significant attention to monitoring the effectiveness of these addition, Congress devotes significant attention to monitoring the effectiveness of these
oversight-enabling statutes and considering amendments to improve their effectiveness.oversight-enabling statutes and considering amendments to improve their effectiveness.
House and Senate Rules on Oversight
committee oversight of the administration of laws. For example, House rules direct committees to committee oversight of the administration of laws. For example, House rules direct committees to
create oversight subcommittees, undertake futures research and forecasting, and review the create oversight subcommittees, undertake futures research and forecasting, and review the
impact of tax expenditures within their respective jurisdictions. Senate rules require each standing impact of tax expenditures within their respective jurisdictions. Senate rules require each standing
legislation.legislation.
House Rules
House House
of oversight. For example, the committee has the authority or responsibility toof oversight. For example, the committee has the authority or responsibility to
X, clause 3).X, clause 3).
connection with the subject matter of the reportsconnection with the subject matter of the reports
organizations of which the United States is a memberorganizations of which the United States is a member
recommendations of the recommendations of the
investigation shall be made available to any other standing committee having investigation shall be made available to any other standing committee having
jurisdiction over the matter involvedjurisdiction over the matter involved" (Rule X, clause 4). (Rule X, clause 4).
any recommendations that [the any recommendations that [the
House leadership group described above, may make to ensure the most House leadership group described above, may make to ensure the most
effective coordination of effective coordination of
under clause 2(m) of Rule XIunder clause 2(m) of Rule XI
effectiveness of laws and programs addressing subjects within its effectiveness of laws and programs addressing subjects within its
clause 2).clause 2).
legislative legislative
oversight is generally limited to named subjects (Rule X, clause 3).oversight is generally limited to named subjects (Rule X, clause 3).
their respective their respective
performance goals and objectives, including outcome-related goals and performance goals and objectives, including outcome-related goals and
objectives, for which the measure authorizes fundingobjectives, for which the measure authorizes funding
committee on the topic of waste, fraud, abuse, or mismanagement in committee on the topic of waste, fraud, abuse, or mismanagement in
shall shall
or mismanagement in government programs as documented by any report the or mismanagement in government programs as documented by any report the
general. Committee and subcommittees shall also hold general. Committee and subcommittees shall also hold
on issues raised by reports issued by the [Comptroller General] indicating on issues raised by reports issued by the [Comptroller General] indicating
that that
high risk for waste, fraud, and mismanagement, known as the high risk for waste, fraud, and mismanagement, known as the
Committees on Oversight and Committees on Oversight and Government Reform and House Administration. Reform and House Administration.
Additionally, "the Committee on Oversight and the Committee on Oversight and Government Reform shall report to the House Reform shall report to the House
the authorization and oversight plans [of the committees] together with any recommendations that oversight plans [of the committees] together with any recommendations that
it, or the House leadership groupit, or the House leadership group
coordination of coordination of authorization and oversight plans and otherwise to achieve the[se] objectives" (Rule X, clause 2).
(A) a list of such programs or agencies with lapsed authorizations that received funding in the prior fiscal year or, in the case of a program or agency with a permanent authorization, which has not been subject to a comprehensive review by the committee in the prior three Congresses;
(B) a description of each such program or agency to be authorized in the current Congress;
(C) a description of each such program or agency to be authorized in the next Congress, if applicable;
(D) a description of any oversight to support the authorization of each such program or agency in the current Congress; and
(E) recommendations for changes to existing law for moving such programs or agencies from mandatory funding to discretionary appropriations, where appropriate" (Rule X, clause 2).
"report shall include—report shall include—
(A) (A)
…; (C) (C)
committees for the purpose of reviewing specific matters within the committees for the purpose of reviewing specific matters within the
standing committees (Rule X, clause 2).standing committees (Rule X, clause 2).
Crisis of the House Committee on Oversight and Reform. Similar to previous select committees dedicated to Crisis of the House Committee on Oversight and Reform. Similar to previous select committees dedicated to
specific specific
investigation and studyinvestigation and study
impact of the COVID-19 pandemic and the federal governmentimpact of the COVID-19 pandemic and the federal government
text regarding the select subcommittee.) The select subcommittee, which was retained in the text regarding the select subcommittee.) The select subcommittee, which was retained in the
held briefings and hearings, released reports, and requested information from the executive branch as the held briefings and hearings, released reports, and requested information from the executive branch as the
pandemic and the governmentpandemic and the government
While a large number of committees and subcommittees in both chambers have oversight jurisdiction relevant to While a large number of committees and subcommittees in both chambers have oversight jurisdiction relevant to
specific aspects of the pandemic and pandemic response, the House was able to both use and adapt its standing specific aspects of the pandemic and pandemic response, the House was able to both use and adapt its standing
rules to create a subcommittee tasked with overseeing and investigating the issue as a whole.rules to create a subcommittee tasked with overseeing and investigating the issue as a whole.
laws, or parts of laws, laws, or parts of laws, the subject matter of which is within the legislative jurisdiction of within the legislative jurisdiction of
policy oversight responsibilities are granted to specified standing committees. This duty is similar to special responsibilities are granted to specified standing committees. This duty is similar to special
oversight in the House. For example, the Committee on Agriculture, Nutrition, and Forestry is oversight in the House. For example, the Committee on Agriculture, Nutrition, and Forestry is
authorized to authorized to "study and review, on a comprehensive basis, matters relating to food, nutrition, and study and review, on a comprehensive basis, matters relating to food, nutrition, and
time to timetime to time" (Rule XXV, clause 1(a)). (Rule XXV, clause 1(a)).
evaluations in their committee reports accompanying each public bill or joint resolution (Rule evaluations in their committee reports accompanying each public bill or joint resolution (Rule
XXVI, clause 11). The evaluations are to include matters such as:XXVI, clause 11). The evaluations are to include matters such as:
over government operations generally, including the U.S. Department of Homeland Security. over government operations generally, including the U.S. Department of Homeland Security.
Selected oversight duties assigned to the committee under Rule XXV, clause 2(k)Selected oversight duties assigned to the committee under Rule XXV, clause 2(k), include: include:
efficiency;efficiency;
States is a member.States is a member.
Government Operations on March 1, 1948 (during the Government Operations on March 1, 1948 (during the
Senator Harry Truman), which investigated fraud and mismanagement of the nationSenator Harry Truman), which investigated fraud and mismanagement of the nation
program. The Truman Committee ended in 1948, but the chair of the Government Operations program. The Truman Committee ended in 1948, but the chair of the Government Operations
Committee transferred the functions of the Truman Committee to the Permanent Subcommittee Committee transferred the functions of the Truman Committee to the Permanent Subcommittee
on Investigations. Since thenon Investigations. Since then, this subcommittee (now a part of the Committee on Homeland this subcommittee (now a part of the Committee on Homeland
Security and Governmental Affairs) has investigated scores of issues, such as government waste, Security and Governmental Affairs) has investigated scores of issues, such as government waste,
fraud, and inefficiency.fraud, and inefficiency.
35 Congressional Participants in Oversight
Committees
The most common method of conducting oversight is through the committee system. Legislative The most common method of conducting oversight is through the committee system. Legislative
history demonstrates that the House and Senate have long used their standing committees—as history demonstrates that the House and Senate have long used their standing committees—as
well as joint, select, or special committees—to investigate federal activities and agencies:well as joint, select, or special committees—to investigate federal activities and agencies:
jurisdiction over virtually the entire federal government. They have been jurisdiction over virtually the entire federal government. They have been
vested with broad investigatory powers over government-wide activities.vested with broad investigatory powers over government-wide activities.
panels also have the authority to establish oversight and investigative panels also have the authority to establish oversight and investigative
subcommittees. The establishment of an oversight subcommittee does not subcommittees. The establishment of an oversight subcommittee does not
preclude a panelpreclude a panel
Certain House and Senate committees have Certain House and Senate committees have
above.above.
Members Oversight is generally considered a committee activity, but Members also have the ability to Oversight is generally considered a committee activity, but Members also have the ability to
pursue oversight without working through a committee. Both casework and other project work pursue oversight without working through a committee. Both casework and other project work
conducted in Membersconducted in Members
insights about bureaucratic behavior and policy implementation. These discoveries, in turn, can insights about bureaucratic behavior and policy implementation. These discoveries, in turn, can
lead to the adjustment of agency policies and procedures and to changes in public law.lead to the adjustment of agency policies and procedures and to changes in public law.
an opportunity to examine bureaucratic activity and operations, if only in a selective way. Other an opportunity to examine bureaucratic activity and operations, if only in a selective way. Other
constituent service activities, such as responding to inquiries about federal grants or projects or constituent service activities, such as responding to inquiries about federal grants or projects or
addressing concerns about program implementation or agency operations, may also provide addressing concerns about program implementation or agency operations, may also provide
Members with similar insights. The accessibility of government websites also allows interested Members with similar insights. The accessibility of government websites also allows interested
constituents to monitor federal activities and expenditures and to share their findings or constituents to monitor federal activities and expenditures and to share their findings or
observations with Members, relevant committees, and legislative staff.observations with Members, relevant committees, and legislative staff.
staff to conduct oversight studies. While individual lawmakers lack the authority to use staff to conduct oversight studies. While individual lawmakers lack the authority to use
compulsory processes (e.g., subpoenas) or conduct official hearings, many other options are compulsory processes (e.g., subpoenas) or conduct official hearings, many other options are
available.available.
government official, a private research group, or some other entity to conduct an investigation. government official, a private research group, or some other entity to conduct an investigation.
Members might choose to publicize this work by releasing staff reports with their findings; Members might choose to publicize this work by releasing staff reports with their findings;
learn to support additional oversight or legislation.learn to support additional oversight or legislation.
Committee Staff
As issues become more complex, the professional staff of House and Senate committees As issues become more complex, the professional staff of House and Senate committees
may provide the expertise required to conduct effective oversight and investigations. Committee staff provide the expertise required to conduct effective oversight and investigations. Committee staff
are expected to have the experience, knowledge, and analytical skills to conduct proficient and are expected to have the experience, knowledge, and analytical skills to conduct proficient and
thorough oversight for the committees and subcommittees they serve. Committees may also call thorough oversight for the committees and subcommittees they serve. Committees may also call
upon legislativeupon legislative support agenciessupport agencies for assistance, hire consultants, for assistance, hire consultants,
departments, or employ academics and others with specialized expertise.departments, or employ academics and others with specialized expertise.
informal contacts with executive officials at all levels constitute one of Congressinformal contacts with executive officials at all levels constitute one of Congress
techniques for performing its techniques for performing its
Personal Staff
Constituent letters, complaints, and requests for projects and assistance frequently bring issues Constituent letters, complaints, and requests for projects and assistance frequently bring issues
and deficiencies in federal programs and administration to the attention of Members and their and deficiencies in federal programs and administration to the attention of Members and their
personal office staff. The casework performed by a Memberpersonal office staff. The casework performed by a Member
effective oversight tool.effective oversight tool.
the oversight functionthe oversight function
Member, legislative aides, and caseworkers on problems brought to the officeMember, legislative aides, and caseworkers on problems brought to the office
constituents. Caseworkers may also become aware of certain issues through their interactions constituents. Caseworkers may also become aware of certain issues through their interactions
with agency employees. Telephone and email inquiries, reinforced with written requests, can with agency employees. Telephone and email inquiries, reinforced with written requests, can
focus agency attention on issues raised by caseworkers and Membersfocus agency attention on issues raised by caseworkers and Members
might also prompt legislative initiatives to resolve those problems.might also prompt legislative initiatives to resolve those problems.
's constituents by reaching out to the staff of the subcommittees and committees that handle the constituents by reaching out to the staff of the subcommittees and committees that handle the
areas of concern to the Memberareas of concern to the Member
standing committee(s) can be made aware of the problems with the agency or program in standing committee(s) can be made aware of the problems with the agency or program in
question, assess how widespread and significant they are, determine their causes, and recommend question, assess how widespread and significant they are, determine their causes, and recommend
corrective action.corrective action.
Congressional Support Agencies and Offices
Many of the other agencies and offices within the legislative branch may be able to support Many of the other agencies and offices within the legislative branch may be able to support
that might play a role in oversight include, among others, the House General Counselthat might play a role in oversight include, among others, the House General Counsel
the House Parliamentarianthe House Parliamentarian
's Office, the Secretary of the SenateOffice, the Secretary of the Senate
House HistorianHouse Historian
Information Sources and
Oversight and the Committee System A persistent challenge for Congress in conducting oversight is coordination among committees—A persistent challenge for Congress in conducting oversight is coordination among committees—
within each chamber as well as between the two houses. within each chamber as well as between the two houses.
Committee on Committees of the Committee on Committees of the
developed by one committee are seldom shared on a timely basis with another committee, and, if developed by one committee are seldom shared on a timely basis with another committee, and, if
they are made available, then often the findings are transmitted in a form that is difficult for they are made available, then often the findings are transmitted in a form that is difficult for
Members to use.Members to use.
uncommon, and it occurs primarily in the aftermath of perceived major policy failures or uncommon, and it occurs primarily in the aftermath of perceived major policy failures or
prominent inter-branch conflicts, as with the Iran-Contra affair and the 9/11 terrorist attacks.prominent inter-branch conflicts, as with the Iran-Contra affair and the 9/11 terrorist attacks.
it can help minimize unnecessary duplication and conflict and inhibit agencies from playing one it can help minimize unnecessary duplication and conflict and inhibit agencies from playing one
committee against another. There are formal and informal ways to achieve oversight coordination committee against another. There are formal and informal ways to achieve oversight coordination
A basic step in conducting oversight involves identifying the committee(s) with jurisdiction over the policy matter or programs of interest. The committee jurisdictional statements in House Rule X and Senate Rule XXV specify the subjects that fall within each committee's jurisdiction. In general, the rules do not address specific departments, agencies, programs, or laws but are stated in broad subject terms. Therefore, multiple committees may exercise some jurisdiction—especially in regard to oversight—over the same departments and agencies or over different elements of the same agency activities. While the House and Senate Parliamentarians are the sole definitive arbiters of committee jurisdiction, CRS can assist congressional staff with the identification of the potential committee(s) of jurisdiction for proposed oversight activities.39
General Techniques of Encouraging Oversight Coordination House Rule X and Senate Rule XXV provide broad authority to the standing committees of each House Rule X and Senate Rule XXV provide broad authority to the standing committees of eachchamber to investigate matters within their respective jurisdictions. Committees undertake chamber to investigate matters within their respective jurisdictions. Committees undertake
oversight activities on their own initiativeoversight activities on their own initiative
instance, by convening a joint hearing on a subject of mutual interest). Alternatively, to instance, by convening a joint hearing on a subject of mutual interest). Alternatively, to
supplement the existing standing committee system, the House or Senate can establish select or supplement the existing standing committee system, the House or Senate can establish select or
special committees to probe issues and agencies, promote public understanding of national special committees to probe issues and agencies, promote public understanding of national
concerns, or coordinate oversight of issues that span the concerns, or coordinate oversight of issues that span the
select committee can enable greater sustained focus on a particular area of congressional concern.select committee can enable greater sustained focus on a particular area of congressional concern.
committee chairs are directed committee chairs are directed
standing committees are delivered to the Committee on Oversight and standing committees are delivered to the Committee on Oversight and Government Reform and are printed as Reform and are printed as
recommendations.recommendations.
in their interactions with agencies, to much more formal actions, such as impeachment in their interactions with agencies, to much more formal actions, such as impeachment
proceedings and special committees and subcommittees tasked with investigating specific proceedings and special committees and subcommittees tasked with investigating specific
the process outlined within these questions appears to have a beginning, a middle, and an end, the process outlined within these questions appears to have a beginning, a middle, and an end,
Question 1: Which Issues Warrant Oversight?
become the basis for oversight. become the basis for oversight.
may not be acting as whistleblowers), inspectors general, GAO, interest groups, or the media. may not be acting as whistleblowers), inspectors general, GAO, interest groups, or the media.
Information can also come in other forms, including congressionally mandated reports and other Information can also come in other forms, including congressionally mandated reports and other
government publications, agency responses to questions during or outside of committee hearings, government publications, agency responses to questions during or outside of committee hearings,
or personal observations of executive branch activities.or personal observations of executive branch activities.
goals of congressional leaders, committees, and individual Members. These decisions may goals of congressional leaders, committees, and individual Members. These decisions may
include factors that are outside the scope of the include factors that are outside the scope of the Oversight Manual..
and technical considerations that may be relevant to these discussions. Those considerations and technical considerations that may be relevant to these discussions. Those considerations
might include Congressmight include Congress
required to successfully complete an oversight project, and the anticipated outcome of successful required to successfully complete an oversight project, and the anticipated outcome of successful
oversight.oversight.
Authority to
Conduct Oversight While CongressWhile Congress
where it is not entirely clear whether Congress has the authority to take a specific action or gather where it is not entirely clear whether Congress has the authority to take a specific action or gather
areas. Nonetheless, understanding the issues that could arise might be useful when determining areas. Nonetheless, understanding the issues that could arise might be useful when determining
whether to proceed.whether to proceed.
Resources
Oversight has costs. Of particular importance are Oversight has costs. Of particular importance are
scarce resources.scarce resources.
Anticipated Outcome
Another practical question that might be considered is the probable outcome for a particular Another practical question that might be considered is the probable outcome for a particular
oversight action. It is not possible to know, in advance, oversight action. It is not possible to know, in advance,
With experienceWith experience, though, Members and staff may develop a strong sense of how and where oversight , Members and staff may develop a strong sense of how and where oversight
projects are likely to go and how long they might take.projects are likely to go and how long they might take.
Question 2: How to Get the Desired Information?
activity activity
does not does not necessarily have to be complex or have to be complex or
agency contact or identification of publicly available documents could be enough to satisfy agency contact or identification of publicly available documents could be enough to satisfy
Congress's oversight needs, while other matters have been litigated all the way to the Supreme Court. What Information Is Available and Who Has It?
Having identified Having identified
what relevant information may be available and which agency or official is likely to have it. For what relevant information may be available and which agency or official is likely to have it. For
instance, when investigating an allegation of mismanagement within an agency, the agencyinstance, when investigating an allegation of mismanagement within an agency, the agency
records and officials records and officials
is readily available. is readily available.
relevant information can be found even if Congress has a good sense of the type of information it relevant information can be found even if Congress has a good sense of the type of information it
agencies. The Watergate Investigation and President Nixon
the Nixon Administration that culminated in the resignation of President Richard Nixon on August 9, 1974. The the Nixon Administration that culminated in the resignation of President Richard Nixon on August 9, 1974. The
most compelling information to come out of these investigations was taped conversations in the Oval Office most compelling information to come out of these investigations was taped conversations in the Oval Office
involving President Nixon himself. White House advisor John Dean first raised the possible existence of a taping involving President Nixon himself. White House advisor John Dean first raised the possible existence of a taping
system in the Oval Office system in the Oval Office
Committee investigative staff Committee investigative staff
Butterfield, confirmed the existence of the taping system. The discovery of these tapes, which played an important Butterfield, confirmed the existence of the taping system. The discovery of these tapes, which played an important
role in compelling President Nixonrole in compelling President Nixon
investigating the Watergate break-in.46 How Can Congress Get the Information?
Sometimes gathering information Sometimes gathering information
oversight. Much of this oversight. Much of this
information even in the face of resistance from the executive branch.information even in the face of resistance from the executive branch.
is required by statute or because a federal agency, other organization, or individual has chosen to is required by statute or because a federal agency, other organization, or individual has chosen to
release the information to Congress or the public. release the information to Congress or the public.
via direct communication between Members or staff and agency officials. There are strong via direct communication between Members or staff and agency officials. There are strong
incentives for agencies to engage with Congress, and they may provide information upon request incentives for agencies to engage with Congress, and they may provide information upon request
in many instances.in many instances.
48 Question 3: What Can Be Done with This Information?
fosters an environment of increased accountability for officials.fosters an environment of increased accountability for officials.
that includes that includes
even though Congress does not have the capacity to directly monitor the activities of millions of even though Congress does not have the capacity to directly monitor the activities of millions of
federal employees and contractors.federal employees and contractors.
the state of the government that can be applied when Congress makes decisions on agency the state of the government that can be applied when Congress makes decisions on agency
budgets and program authorizations and may lead to other legislation.budgets and program authorizations and may lead to other legislation.
gained from oversight can be applied in those other functions gained from oversight can be applied in those other functions
information and the priorities and preferences of Congress. More concretely, as discussed throughout this report, oversight can lead to a variety of specific products and other outputs. While oversight questions are often resolved when congressional stakeholders receive enough information to resolve their questions or concerns, many projects lead to public-facing actions such as committee hearings, the publication of investigative reports, and legislative responses. While it is not always possible to foresee where or how far particular oversight actions will go, an understanding of the benefits, costs, advantages, and disadvantages of these options may be useful when making other decisions throughout the process.
In addition, one can also consider the form that the findings and conclusions in these products might take. Professor Kenneth Lowande identifies four classes of congressional oversight reports:
- 1. Finding: a conclusion of fact about past events
- 2. Evaluation: a judgment regarding a past event
- 3. Prediction: an expectation about a likely future outcome based on current conditions
- 4. Recommendation: a proposal to make policy or other changes intended to produce a desired effect51
This typology may be a useful lens for both refining the goals for an oversight project and identifying strategies to achieve those goals. If, for instance, one goal of a particular oversight activity is to gather information to support future legislation, then it may be useful to pursue lines of inquiry that will inform legislative recommendations.
Oversight Through Other Congressional ActivitiesCongress's constitutional functions also include consideration of legislation, appropriations, Senate confirmation of presidential nominees, and the exercise of the impeachment power. Oversight often has a symbiotic relationship with these other duties. For instance, oversight regularly helps Congress identify issues that it wishes to legislate upon and helps Congress design its proposals.
This section identifies major areas of congressional activity and how they relate to and facilitate This section identifies major areas of congressional activity and how they relate to and facilitateoversight. Congress has a central role in the development of the budget, the operations of oversight. Congress has a central role in the development of the budget, the operations of
agencies and general management of the executive branch, confirmation of appointees to senior agencies and general management of the executive branch, confirmation of appointees to senior
positions across the government, andpositions across the government, and
The Legislative Process
While oversight is frequently considered to be While oversight is frequently considered to be
activities overlap. Oversight, for instance, can activities overlap. Oversight, for instance, can
Congress establishes reporting and study requirements for GAO, inspectors general, and agencies Congress establishes reporting and study requirements for GAO, inspectors general, and agencies
that generate recommendations for agency or congressional action, which in turn provide both that generate recommendations for agency or congressional action, which in turn provide both
oversight information and ideas for potential legislation.oversight information and ideas for potential legislation.
attention to developing such legislation, overseeing its implementation, and evaluating its attention to developing such legislation, overseeing its implementation, and evaluating its
effectiveness.effectiveness.
52 The Budget
Process53 The Congressional Budget and Impoundment Control Act of 1974,The Congressional Budget and Impoundment Control Act of 1974,
legislative branchlegislative branch
procedural effects on Congress:procedural effects on Congress:
priorities among competing national programs; and ensure that revenue, priorities among competing national programs; and ensure that revenue,
spending, and debt legislation are consistent with the overall budget policy.spending, and debt legislation are consistent with the overall budget policy.
significantly affects each:significantly affects each:
submits a budget or at such time that the Budget Committee might request.submits a budget or at such time that the Budget Committee might request.
Committees are assigned Committees are assigned
may be included in the measures they report. (The tax and appropriations may be included in the measures they report. (The tax and appropriations
panels of each house also submit budgetary views and estimates to their panels of each house also submit budgetary views and estimates to their
respective Budget Committees.)respective Budget Committees.)
(expenditures for defense, entitlements, interest on the debt, and domestic (expenditures for defense, entitlements, interest on the debt, and domestic
discretionary programs).discretionary programs).
better relate program priorities to financial claims on the national budget. Each committee, better relate program priorities to financial claims on the national budget. Each committee,
knowing that it will receive a fixed amount of the total to be included in a budget resolution, has knowing that it will receive a fixed amount of the total to be included in a budget resolution, has
an incentive to scrutinize existing programs to make room for new programs or expanded funding an incentive to scrutinize existing programs to make room for new programs or expanded funding
of ongoing projects or to assess whether programs have outlived their usefulness.of ongoing projects or to assess whether programs have outlived their usefulness.
The Authorization Process
Through its authorization power, Congress exercises significant control over government Through its authorization power, Congress exercises significant control over government
agencies. The entire authorization agencies. The entire authorization
studies, and reports—but the key to the process is the studies, and reports—but the key to the process is the authorization statute..
the statement of legislative policy for the agency. Authorization is the the statement of legislative policy for the agency. Authorization is the
exercise of the power of the purse. It usually allows an agency to be funded, but it does exercise of the power of the purse. It usually allows an agency to be funded, but it does
not guarantee financing of agencies and programs. Frequently, authorizations establish dollar ceilings guarantee financing of agencies and programs. Frequently, authorizations establish dollar ceilings
on the amounts that can be appropriated.on the amounts that can be appropriated.
Members can become informed about the work of an agency and are given an opportunity to Members can become informed about the work of an agency and are given an opportunity to
direct the agencydirect the agency
decades, there has been a mix of permanent authorizations—which do not require regular decades, there has been a mix of permanent authorizations—which do not require regular
reauthorization legislation—and periodic authorizations, which can be annual or multiyear. reauthorization legislation—and periodic authorizations, which can be annual or multiyear.
Periodic reauthorizations increase the likelihood that an agency will be scrutinized systematically. Periodic reauthorizations increase the likelihood that an agency will be scrutinized systematically.
An agencyAn agency
increases the influence of the committee. This condition helps to account for the appeal of short-increases the influence of the committee. This condition helps to account for the appeal of short-
term authorizations. The Congressional Budget Office
and Expiring Authorizations of Appropriations. By law, CBO is required to annually submit a report to Congress listing . By law, CBO is required to annually submit a report to Congress listing
programs and activities funded during that fiscal year that do not have programs and activities funded during that fiscal year that do not have
The latest version of CBO's report is available at https://www.cbo.gov/publication/61543.
In addition, the authorization process , the authorization processgives committees an opportunity to exercise informal, nonstatutory controls over the agency. gives committees an opportunity to exercise informal, nonstatutory controls over the agency.
Nonstatutory controls used by committees to exercise direction over the administration of laws used by committees to exercise direction over the administration of laws
include statements made in:include statements made in:
sanctions or move to convert the informal directive to a statutory command.sanctions or move to convert the informal directive to a statutory command.
The Appropriations Process
The appropriations process is among CongressThe appropriations process is among Congress
position stems from the constitutional requirement that position stems from the constitutional requirement that
Treasury, but in Consequence of Appropriations made by Law.Treasury, but in Consequence of Appropriations made by Law.
" allows the House and Senate Committees on Appropriations to play a prominent role in oversight.allows the House and Senate Committees on Appropriations to play a prominent role in oversight.
examine the budget requests of the agencies as contained in the Presidentexamine the budget requests of the agencies as contained in the President
of the committees are conditioned on their of the committees are conditioned on their
requests as indicated by past performance. In practice, the entire record of an agency is fair game requests as indicated by past performance. In practice, the entire record of an agency is fair game
for the required assessment. This comprehensive overview and the for the required assessment. This comprehensive overview and the
appropriations recommendations (i.e., the authority of the committees to withhold or reduce appropriations recommendations (i.e., the authority of the committees to withhold or reduce
appropriations to uncooperative agencies) make the committees significant focal points of appropriations to uncooperative agencies) make the committees significant focal points of
congressional oversight and are a key source of their power in Congress and in the federal congressional oversight and are a key source of their power in Congress and in the federal
government generally.government generally.
agencies:agencies:
condition: condition:
Act may be used for first-class travel by the employees or agencies funded by Act may be used for first-class travel by the employees or agencies funded by
this Act in contravention of sections 301-10.122 through 301-10.124 of title 41, this Act in contravention of sections 301-10.122 through 301-10.124 of title 41,
Code of Federal Regulations.Code of Federal Regulations.
accounts).accounts).
may be conveyed through committee reportsmay be conveyed through committee reports
communications. Agencies are not legally obligated to abide by nonstatutory recommendations, communications. Agencies are not legally obligated to abide by nonstatutory recommendations,
but failure to do so may result in a loss of funds and flexibility the following year.but failure to do so may result in a loss of funds and flexibility the following year.
An Example of Nonstatutory Control of Agency Appropriations
Paper Reduction Efforts.—The Conferees urge the Department of the Interior, EPA, Forest Service, .—The Conferees urge the Department of the Interior, EPA, Forest Service,
and Indian Health Service to work with the Office of Management and Budget to reduce printing and Indian Health Service to work with the Office of Management and Budget to reduce printing
and reproduction costs and direct each agency to report to the Committees within 90 days of and reproduction costs and direct each agency to report to the Committees within 90 days of
enactment of this Act on steps being undertaken to achieve this goal and how much each agency enactment of this Act on steps being undertaken to achieve this goal and how much each agency
expects to save by implementing these measures.62 The Confirmation Process
lawmakers to call appointed officials to account at a later time. Since at least the Ethics in lawmakers to call appointed officials to account at a later time. Since at least the Ethics in
Government Act of 1978,Government Act of 1978,
have set aside more time to probe the qualifications, independence, and policy views of have set aside more time to probe the qualifications, independence, and policy views of
presidential nominees, seeking information on everything from their physical health to their presidential nominees, seeking information on everything from their physical health to their
financial assets. The confirmation process can assist in oversight in at least three ways:financial assets. The confirmation process can assist in oversight in at least three ways:
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the Ministers and Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided for, and United States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law.which shall be established by Law.
executive branch leadership positions is a major responsibility of the Senate and executive branch leadership positions is a major responsibility of the Senate and
especially of Senate committees, which review and hold hearings regarding the especially of Senate committees, which review and hold hearings regarding the
qualifications of nominees.qualifications of nominees.
used to provide policy direction to nominees, inform nominees of congressional used to provide policy direction to nominees, inform nominees of congressional
interests, and seek commitments on future behavior.interests, and seek commitments on future behavior.
hearings. Subsequent hearings and committee investigations can explore whether hearings. Subsequent hearings and committee investigations can explore whether
such commitments have been kept.such commitments have been kept.
consent of the Senate, including, under certain circumstances, recess consent of the Senate, including, under certain circumstances, recess
designations under the Vacancies Act.66 The Impeachment Process
The impeachment power is a unique The impeachment power is a unique
the President, the President, the Vice President, and other federal civil officers in the executive and judicial Vice President, and other federal civil officers in the executive and judicial
branches.branches.
significant procedural differences center on the significant procedural differences center on the roles played by each house of Congress. The played by each house of Congress. The
House of Representatives has the sole power to impeach.House of Representatives has the sole power to impeach.
House to approve articles of impeachment. The Senate has the sole power to try an House to approve articles of impeachment. The Senate has the sole power to try an
impeachment.impeachment.
individual from office. Should the Senate deem it appropriate in a given case, it may, by majority individual from office. Should the Senate deem it appropriate in a given case, it may, by majority
vote, impose an additional judgment of disqualification from holding further federal offices of vote, impose an additional judgment of disqualification from holding further federal offices of
honor, trust, or profit.honor, trust, or profit.
Senate has voted to convict in eight cases, all pertaining to federal judges.Senate has voted to convict in eight cases, all pertaining to federal judges.72 The most recent The most recent
executive impeachment trial was that of executive impeachment trial was that of
judicial impeachment trial was that of U.S. District Court Judge G. Thomas Porteous Jr. in 2010. judicial impeachment trial was that of U.S. District Court Judge G. Thomas Porteous Jr. in 2010.
A number of constitutional and procedural issues were addressed in the impeachment A number of constitutional and procedural issues were addressed in the impeachment
President Bill Clinton and President Bill Clinton and
of these questions remain ambiguous. For example:of these questions remain ambiguous. For example:
process.process.
of of high Crimes and Misdemeanors remains in some dispute and depends on remains in some dispute and depends on
it covers at least federal judges and senior executive officers.it covers at least federal judges and senior executive officers.
Investigative Oversight77 This section provides an overview of some of the more common legal issues that committees may This section provides an overview of some of the more common legal issues that committees may
face in the course of conducting oversight and investigations. It begins by briefly describing the face in the course of conducting oversight and investigations. It begins by briefly describing the
historical development of the legislative historical development of the legislative
of Congressof Congress
then discusses the legal tools commonly used by congressional committees in conducting that then discusses the legal tools commonly used by congressional committees in conducting that
oversight as well as the mechanisms used by Congress to enforce its demands for information. oversight as well as the mechanisms used by Congress to enforce its demands for information.
The section then briefly discusses possible legal limitations on the investigative power, including The section then briefly discusses possible legal limitations on the investigative power, including
those arising from the Constitution, common law, and statutory restrictions.those arising from the Constitution, common law, and statutory restrictions.
Historical Background
The rich and varied history of legislative investigations, which can be traced from the English The rich and varied history of legislative investigations, which can be traced from the English
Parliament to American colonial legislatures and through to the U.S. Congress, has played a Parliament to American colonial legislatures and through to the U.S. Congress, has played a
leading role in establishing the nature and contours of the congressional leading role in establishing the nature and contours of the congressional
"78 This history supports the unmistakable conclusion that the power to investigate has long been This history supports the unmistakable conclusion that the power to investigate has long been
considered an essential attribute of legislative bodies.considered an essential attribute of legislative bodies.
investigatory powers. By the early 17th century however, Parliament had apparently recognized its investigatory powers. By the early 17th century however, Parliament had apparently recognized its
power to investigate by requiring—on a case-by-case basis—the attendance of witnesses and the power to investigate by requiring—on a case-by-case basis—the attendance of witnesses and the
production of documents in furtherance of the bodyproduction of documents in furtherance of the body
the kingthe king
the gathering the gathering of information relating to both the passage of new laws and the administration of information relating to both the passage of new laws and the administration of
existing laws became seen as an essential ingredient of the legislative process, compulsory existing laws became seen as an essential ingredient of the legislative process, compulsory
investigatory powers were provided on a more general and permanent basis to established investigatory powers were provided on a more general and permanent basis to established
parliamentary committees of inquiry.parliamentary committees of inquiry.
governments.governments.
oversight and investigations, although individual oversight and investigations, although individual
understood Congress to clearly possess understood Congress to clearly possess
Congress with the power to punish for Congress with the power to punish for
effectuate its investigatory powerseffectuate its investigatory powers
the general view was that no express enumeration of the power of inquiry or the power to punish the general view was that no express enumeration of the power of inquiry or the power to punish
for contempt was considered necessary because the Framersfor contempt was considered necessary because the Framers
based on centuries of consistent practice by both Parliament and colonial legislatures, included based on centuries of consistent practice by both Parliament and colonial legislatures, included
the ability to gather information relevant to the conduct of the House and Senatethe ability to gather information relevant to the conduct of the House and Senate
functions.functions.
time of the adoption of the Constitution time of the adoption of the Constitution
of committees of inquiry with powers to send for persons and paper.of committees of inquiry with powers to send for persons and paper.
robust view of its own investigatory powers from robust view of its own investigatory powers from
House appointed five Members to investigate Senator Robert MorrisHouse appointed five Members to investigate Senator Robert Morris
superintendent of finance under the Articles of Confederation.superintendent of finance under the Articles of Confederation.
Arthur St. ClairArthur St. Clair
federal troops were killed by the Western Confederacy of American Indians.federal troops were killed by the Western Confederacy of American Indians.
authorizing such a committee set an important precedent in that adoption of the resolution was authorizing such a committee set an important precedent in that adoption of the resolution was
90 Although some asserted that the House lacked authority to inquire into executive operations, that Although some asserted that the House lacked authority to inquire into executive operations, that
position was defeated, and the investigating committee was established with clear authority to position was defeated, and the investigating committee was established with clear authority to
information from the executive branch, including in relation to sensitive military matters. After information from the executive branch, including in relation to sensitive military matters. After
some discussion within Washingtonsome discussion within Washington
information from Congress, the special committee obtained documents from both the War information from Congress, the special committee obtained documents from both the War
Department and the Treasury Department as well as testimony from Cabinet officials Henry Knox Department and the Treasury Department as well as testimony from Cabinet officials Henry Knox
and Alexander Hamilton.and Alexander Hamilton.
powers. In 1798, Congress enacted a statute recognizing its powers to not only obtain evidence powers. In 1798, Congress enacted a statute recognizing its powers to not only obtain evidence
through testimony but to do so from witnesses under oath.through testimony but to do so from witnesses under oath.
the President of the Senate, the Speaker of the House, and a chair of a select committee to the President of the Senate, the Speaker of the House, and a chair of a select committee to
administer oaths to witnesses testifying before Congress.administer oaths to witnesses testifying before Congress.
House and House and the Senate began to delegate to ad hoc select committees the authority to call for papers or Senate began to delegate to ad hoc select committees the authority to call for papers or
persons. Committee investigations have continued apace to the modern day, representing a persons. Committee investigations have continued apace to the modern day, representing a
pervasive and nearly ubiquitous aspect of the legislative function,pervasive and nearly ubiquitous aspect of the legislative function,
statutory provisions and internal chamber rules to support committee investigations. The statutory provisions and internal chamber rules to support committee investigations. The
investigatory power is therefore thoroughly rooted in history and stands on an equal footing with investigatory power is therefore thoroughly rooted in history and stands on an equal footing with
96 Constitutional Authority to Conduct Oversight and
Investigative Inquiries
Although the Although the
Court has nonetheless described investigations as so central to the legislative function as to be Court has nonetheless described investigations as so central to the legislative function as to be
implicit in Article Iimplicit in Article I
McGrain v. Daugherty, a unanimous Supreme Court declared that , a unanimous Supreme Court declared that
process to enforce it—is an essential and appropriate auxiliary to the legislative function.process to enforce it—is an essential and appropriate auxiliary to the legislative function.
"98 Congressional investigations are therefore properly characterized as an implied constitutional power of Congress.99 It is a power that serves both to
and informed legislative decisions and to check executive power, thereby sustaining Congressand informed legislative decisions and to check executive power, thereby sustaining Congress
's role in the United Statesrole in the United States
Congress Congress
scope, as Congress is empowered to obtain pertinent testimony and documents through scope, as Congress is empowered to obtain pertinent testimony and documents through
investigations into nearly any matter properly before the body.investigations into nearly any matter properly before the body.
Servicemen
Constitution.Constitution.
the Congress to conduct investigations is inherent in the legislative process.the Congress to conduct investigations is inherent in the legislative process.
Court established, Court established,
existing laws as well as proposed or possibly needed statutesexisting laws as well as proposed or possibly needed statutes
departments of the federal government to expose corruption, inefficiency, or waste.departments of the federal government to expose corruption, inefficiency, or waste.
within the scope of the power is the authority to initiate investigations, hold hearings, request within the scope of the power is the authority to initiate investigations, hold hearings, request
testimony or documents from witnesses, andtestimony or documents from witnesses, and
party is not forthcomingparty is not forthcoming
and enforcement of subpoenas.and enforcement of subpoenas.
's investigatory power in investigatory power in Trump v. Mazars..
Congress would be shooting in the dark, unable to legislate Congress would be shooting in the dark, unable to legislate
political system for the purpose of enabling the Congress to remedy them.political system for the purpose of enabling the Congress to remedy them.
'"109 The Constitutional Scope of the Investigative Power: Legislative Purpose
that because the power to investigate derives from Article Ithat because the power to investigate derives from Article I
be exercised only be exercised only
instead instead
Supreme Court has generally implemented this principle by requiring that compulsory committee Supreme Court has generally implemented this principle by requiring that compulsory committee
investigative actions—including subpoenas for documents or testimony—serve a valid legislative investigative actions—including subpoenas for documents or testimony—serve a valid legislative
purpose.purpose.
upon which legislation could be had or over which Congress may properly exercise authority.upon which legislation could be had or over which Congress may properly exercise authority.
113 This includes investigations undertaken by Congress to inform itself about how existing laws This includes investigations undertaken by Congress to inform itself about how existing laws
function, whether new laws are necessary, and if old laws should be repealed or altered.function, whether new laws are necessary, and if old laws should be repealed or altered.
114 Investigations into whether the executive branch is complying with its obligation to faithfully Investigations into whether the executive branch is complying with its obligation to faithfully
execute laws passed by Congress also serve a legislative purpose, as do execute laws passed by Congress also serve a legislative purpose, as do
of the Federal Government to expose corruption, inefficiency or waste.of the Federal Government to expose corruption, inefficiency or waste.
also appears to have recognized Congressalso appears to have recognized Congress
the workings of its governmentthe workings of its government
earliest times in its history.earliest times in its history.
legislative investigations, especially those relating to government operations. This is principally legislative investigations, especially those relating to government operations. This is principally
because the scope of what constitutes a permissible legislative purpose is broad but also because because the scope of what constitutes a permissible legislative purpose is broad but also because
the application of the legislative purpose test has generally been quite deferential to the the application of the legislative purpose test has generally been quite deferential to the
investigating committee. For example, in addition to broadly interpreting the scope of the types of investigating committee. For example, in addition to broadly interpreting the scope of the types of
investigations that aid the legislative function, the Supreme Court has at times effectively adopted investigations that aid the legislative function, the Supreme Court has at times effectively adopted
congressional investigation of the Attorney Generalcongressional investigation of the Attorney General
following the Teapot Dome scandal.following the Teapot Dome scandal.
congressional committeecongressional committee
private citizen. The lower court reasoned that the committeeprivate citizen. The lower court reasoned that the committee
nature but was undertaken to nature but was undertaken to
trial,trial,
this characterization of the committeethis characterization of the committee
could be had and would be materially aided by the information which the investigation was could be had and would be materially aided by the information which the investigation was
calculated to elicit.calculated to elicit.
have in ordering the investigation was to aid it in legislating; and we think the subject-matter was have in ordering the investigation was to aid it in legislating; and we think the subject-matter was
such that the presumption should be indulged that this was the real object.such that the presumption should be indulged that this was the real object.
previously reflected a reluctance to question a committeepreviously reflected a reluctance to question a committee
Supreme Court has made clear that when Supreme Court has made clear that when
power,power,
investigative power.investigative power.
investigation.investigation.
legislative or oversight goal.legislative or oversight goal.
investigative function—like any research—is that it takes the searchers up some investigative function—like any research—is that it takes the searchers up some
into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end
result.result.
However, the courts have acknowledged at least two general classes of investigations in which However, the courts have acknowledged at least two general classes of investigations in which
Congress may generally lack a legislative purpose: Congress may generally lack a legislative purpose: (1) investigations into private conduct with no investigations into private conduct with no
relation to the legislative function and relation to the legislative function and (2) investigations that usurp functions committed to another investigations that usurp functions committed to another
branch of government.branch of government.
Investigations into Private Conduct with No Relation to the
Legislative Function
Congress does not act with a legislative purpose when investigating private conduct that has no Congress does not act with a legislative purpose when investigating private conduct that has no
nexus to the legislative function. In the 1880 decision of nexus to the legislative function. In the 1880 decision of Kilbourn v. Thompson, the Supreme , the Supreme
Court held broadly that Congress does not Court held broadly that Congress does not
the private affairs of the citizen.the private affairs of the citizen.
discredited.discredited.
a distinction between investigating purely private conduct of private citizens, which would not a distinction between investigating purely private conduct of private citizens, which would not
typically serve a legislative purpose, and investigating the private conduct of public office typically serve a legislative purpose, and investigating the private conduct of public office
holders, which may, in some circumstances, serve a legislative purpose due to Congressholders, which may, in some circumstances, serve a legislative purpose due to Congress
preserving good government.preserving good government.
investigation investigation
investigations into private conduct could infringe on personal privacy. In the 1957 decision of investigations into private conduct could infringe on personal privacy. In the 1957 decision of
Watkins v. United States, the Court, in an opinion overturning a criminal contempt of Congress , the Court, in an opinion overturning a criminal contempt of Congress
conviction on due process grounds, also discussed more generally Congressconviction on due process grounds, also discussed more generally Congress
powers and described the legislative branch as having powers and described the legislative branch as having
affairs of individuals without justification in terms of the functions of Congress.affairs of individuals without justification in terms of the functions of Congress.
acknowledging that acknowledging that
its government,its government,
power to expose where the predominant result can only be an invasion of the private rights of power to expose where the predominant result can only be an invasion of the private rights of
individuals.individuals.
legislative purpose,legislative purpose,
Functions Committed to Another Branch of Government
A second class of investigations that may lack a legislative purpose are those that appear to usurp A second class of investigations that may lack a legislative purpose are those that appear to usurp
functions exclusively committed to another branch of government. In functions exclusively committed to another branch of government. In Barenblatt v. United States,
the Supreme Court explained, the Supreme Court explained,
cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the Executive.supplant the Executive in what exclusively belongs to the Executive.
this separation of powers line of reasoning in this separation of powers line of reasoning in Watkins, where it stated that Congress is not , where it stated that Congress is not
enforcement or trial agency. These are functions of the executive and judicial departments of enforcement or trial agency. These are functions of the executive and judicial departments of
investigators or to investigators or to
Court reaffirmed thatCourt reaffirmed that
Congress may not use subpoenas to Congress may not use subpoenas to
wrongdoing.wrongdoing.
attempting to directly enforce the law or otherwise prosecute and try an individual for attempting to directly enforce the law or otherwise prosecute and try an individual for
wrongdoing, it is not clear how this separation of powers constraint applies to investigations wrongdoing, it is not clear how this separation of powers constraint applies to investigations
touching on other exclusive functions of the executive or judicial branches.touching on other exclusive functions of the executive or judicial branches.
Brandhove, for example, the Court suggested, for example, the Court suggested
exceeded the bounds of legislative power it must be obvious that there was a usurpation of exceeded the bounds of legislative power it must be obvious that there was a usurpation of
functions exclusively vested in the Judiciary or the Executive.functions exclusively vested in the Judiciary or the Executive.
"137 Legislative Purpose and Investigations Involving the President
when a committee is investigating the President. In when a committee is investigating the President. In Trump v. Mazars, President Trump brought , President Trump brought
suit in his personal capacity to block his banks and accounting firm from complying with various suit in his personal capacity to block his banks and accounting firm from complying with various
committee subpoenas for the Presidentcommittee subpoenas for the President
legislative purpose standard used by the Court in previous cases,legislative purpose standard used by the Court in previous cases,
that the committees had a valid legislative purpose for seeking the Presidentthat the committees had a valid legislative purpose for seeking the President
consider the legislative purpose test in a congressional investigation of the President.consider the legislative purpose test in a congressional investigation of the President.
must, as a constitutional matter, be treated differently than others.must, as a constitutional matter, be treated differently than others.
courts below as having mistakenly courts below as having mistakenly
and principles established in and principles established in
"142 Subpoenas for the PresidentSubpoenas for the President
cases involving executive privilege—a privilege not at issue in cases involving executive privilege—a privilege not at issue in Mazars due to the personal nature due to the personal nature
of the documents sought.of the documents sought.
least four least four
interests of Congressinterests of Congress
seeks the Presidentseeks the President
and his papers.and his papers.
sufficiently powerful to justify access to the Presidentsufficiently powerful to justify access to the President
when other sources could provide Congress the information it needs.when other sources could provide Congress the information it needs.
the High Court reasoned, are less likely to the High Court reasoned, are less likely to
Presidency.Presidency.
purpose.purpose.
congressional committee can provide congressional committee can provide
the burdens imposed by judicial subpoenas, the burdens imposed on the the burdens imposed by judicial subpoenas, the burdens imposed on the
President by congressional subpoenas President by congressional subpoenas
they stem from a rival political branch that has an ongoing relationship with they stem from a rival political branch that has an ongoing relationship with
the President and incentives to use subpoenas for institutional advantage.the President and incentives to use subpoenas for institutional advantage.
's personal records to a less deferential standard than other congressional subpoenas. The Court personal records to a less deferential standard than other congressional subpoenas. The Court
cautioned that cautioned that
as as
factors to be considered by a reviewing court.factors to be considered by a reviewing court.
153 Mazars
otherwise—for example, to apply the otherwise—for example, to apply the
as part of a more typical oversight investigation into as part of a more typical oversight investigation into agency activity—would put the opinion in activity—would put the opinion in
tension with previous precedent, including the principles established in tension with previous precedent, including the principles established in McGrain..
the the Mazars opinion appears to signal that the majority intended to alter previously established opinion appears to signal that the majority intended to alter previously established
principles in congressional investigations not involving the President.principles in congressional investigations not involving the President.
Authority of Congressional Committees
The implied constitutional authority to conduct investigations resides independently in both the The implied constitutional authority to conduct investigations resides independently in both the
House of Representatives and the Senate, but each chamber has delegated responsibility for House of Representatives and the Senate, but each chamber has delegated responsibility for
carrying out the investigative role to its standing and select committees.carrying out the investigative role to its standing and select committees.
House rules, a standing House committee may conduct House rules, a standing House committee may conduct
standing committee standing committee
result, the power of inquiry and investigation is result, the power of inquiry and investigation is
Congress rather than by the full House or Senate. And that investigative role is more than a Congress rather than by the full House or Senate. And that investigative role is more than a
discretionary power; it is a statutory duty. Under 2 U.S.C. § 190d, discretionary power; it is a statutory duty. Under 2 U.S.C. § 190d,
the Senate and the House of Representatives shall review and study, on a continuing basis, the the Senate and the House of Representatives shall review and study, on a continuing basis, the
application, administration, and execution of those laws application, administration, and execution of those laws
the jurisdiction of that committee.the jurisdiction of that committee.
the grant and limitations of the committeethe grant and limitations of the committee
constrains committees in two meaningful ways. First, as a creation of its parent house, a constrains committees in two meaningful ways. First, as a creation of its parent house, a
congressional committee may inquire only into matters within the scope of the authority that has congressional committee may inquire only into matters within the scope of the authority that has
been delegated to it—that is, within its jurisdiction.been delegated to it—that is, within its jurisdiction.
committee must generally comply with any procedural requirements contained in its charter, its committee must generally comply with any procedural requirements contained in its charter, its
own rules, or the rules of the parent chamber.own rules, or the rules of the parent chamber.
congressional matters, is generally quite limited.congressional matters, is generally quite limited.
generally prevents direct challenges to how a committee carries out its legislative and generally prevents direct challenges to how a committee carries out its legislative and
investigative operations.investigative operations.
subpoena or other investigative demands that a court is presented with the opportunity to subpoena or other investigative demands that a court is presented with the opportunity to
determine compliance with procedural rules.determine compliance with procedural rules.
examine internal matters unless a House, Senate, or committee rule implicates constitutional examine internal matters unless a House, Senate, or committee rule implicates constitutional
rights.rights.
rule or resolution itself and then, if necessary, to the usual sources of legislative history such as rule or resolution itself and then, if necessary, to the usual sources of legislative history such as
floor debate, legislative reports, and prior committee practice and interpretation.floor debate, legislative reports, and prior committee practice and interpretation.
166 Jurisdiction
of its jurisdiction.of its jurisdiction.
the parent body.the parent body.
" and and
standing committees, that jurisdictional delegation can generally be found in House Rule X and standing committees, that jurisdictional delegation can generally be found in House Rule X and
Senate Rule XXV.Senate Rule XXV.
Rumely..
political tendentiousnesspolitical tendentiousness
the committee that cited him for contempt had exceeded its jurisdiction.the committee that cited him for contempt had exceeded its jurisdiction.
establishing the committee, which the Supreme Court viewed as establishing the committee, which the Supreme Court viewed as
to influence to influence
authority to investigate or enforce a subpoena against a witness who had sought only to influence authority to investigate or enforce a subpoena against a witness who had sought only to influence
public opinion.public opinion.
enforcement of the subpoena would violate the witnessenforcement of the subpoena would violate the witness
political speech.political speech.
adopting a narrow interpretation of either a committee jurisdiction or the scope of an individual adopting a narrow interpretation of either a committee jurisdiction or the scope of an individual
investigation in order to avoid the possibility of a constitutional conflict on the grounds that investigation in order to avoid the possibility of a constitutional conflict on the grounds that
conduct of investigations.conduct of investigations.
overturned a contempt conviction stemming from a witnessoverturned a contempt conviction stemming from a witness
public hearing.public hearing.
committee had failed to comply with its own rules regarding the availability of closed, or committee had failed to comply with its own rules regarding the availability of closed, or
executive, sessions.executive, sessions.
hearing, the committee consider the possible injury to the witnesshearing, the committee consider the possible injury to the witness
from a public hearing.from a public hearing.
be be
consideration to the witnessconsideration to the witness
conviction.conviction.
committee rule required that all committee rule required that all
approval of the committee.approval of the committee.
prosecution had not been authorized. Thus, the court reversed the conviction.prosecution had not been authorized. Thus, the court reversed the conviction.
185 Legal Tools Available for Oversight and Investigations
There is no single method or set of procedures for engaging in legislative oversight or conducting There is no single method or set of procedures for engaging in legislative oversight or conducting
an investigation.an investigation.
witnesses, congressional committees frequently rely on informal tools to gather the information witnesses, congressional committees frequently rely on informal tools to gather the information
necessary to accomplish necessary to accomplish
and contacts and voluntary compliance with document and briefing requests.and contacts and voluntary compliance with document and briefing requests.
these informal and voluntary tools represent the unseen but predominant components of these informal and voluntary tools represent the unseen but predominant components of
witnesses. Chief among these tools are hearings and, when authorized, depositions.witnesses. Chief among these tools are hearings and, when authorized, depositions.
Hearings
hearings for purposes of receiving testimony.hearings for purposes of receiving testimony.
under oath.under oath.
governing the conduct of hearings. These rules include quorum requirements, basic procedural governing the conduct of hearings. These rules include quorum requirements, basic procedural
constraints, and witness and minority protections.constraints, and witness and minority protections.
reduced quorum for taking testimony and receiving evidence. House committees are required to reduced quorum for taking testimony and receiving evidence. House committees are required to
have at least two Members present to take testimony.have at least two Members present to take testimony.
requirement, and some require a higher quorum for sworn rather than unsworn testimony.requirement, and some require a higher quorum for sworn rather than unsworn testimony.
194 For example, the House requires testimony to be held in closed session if a majority of a For example, the House requires testimony to be held in closed session if a majority of a
committee or subcommittee determines it committee or subcommittee determines it
person.person.
of the committee. Similarly, confidential material received in a closed session requires a majority of the committee. Similarly, confidential material received in a closed session requires a majority
vote for release.vote for release.
of an investigative hearing, the opening statement can be an important means of defining the of an investigative hearing, the opening statement can be an important means of defining the
subject matter of the hearing and thereby establishing the pertinence of questions asked the subject matter of the hearing and thereby establishing the pertinence of questions asked the
witnesses.witnesses.
the opportunity is usually accorded. Committee rules may prescribe the length of such statements the opportunity is usually accorded. Committee rules may prescribe the length of such statements
and also require that written statements be submitted in advance of the hearing.and also require that written statements be submitted in advance of the hearing.
witnesses may be structured so that Members alternate for specified lengths of time.witnesses may be structured so that Members alternate for specified lengths of time.
criminal proceeding, as the same constitutional rights do not attach. Because the Constitution is criminal proceeding, as the same constitutional rights do not attach. Because the Constitution is
example, witnesses in a committee hearing may assert their Fifth Amendment right against self-example, witnesses in a committee hearing may assert their Fifth Amendment right against self-
incrimination.incrimination.
200 Consider, for example, a criminal defendantConsider, for example, a criminal defendant
evidence and to confront and cross-examine witnesses.evidence and to confront and cross-examine witnesses.
distinguishing factorsdistinguishing factors
"cause" congressional investigations congressional investigations
guaranteed in criminal proceedings by the Sixth Amendment.guaranteed in criminal proceedings by the Sixth Amendment.
hearing therefore has no right to offer his or her own evidence or cross-examine other witnesses, hearing therefore has no right to offer his or her own evidence or cross-examine other witnesses,
though a committee may, at its discretion, afford a witness such an opportunity.though a committee may, at its discretion, afford a witness such an opportunity.
of another Sixth Amendment rightof another Sixth Amendment right
in a congressional investigation.in a congressional investigation.
witnesses a limited form of that right. Under House rules, the role of counsel is restricted to witnesses a limited form of that right. Under House rules, the role of counsel is restricted to
advising a witness of his or her advising a witness of his or her
rules specifically prohibiting counsel from rules specifically prohibiting counsel from
206 Deposition Authority
during an investigation. A deposition is a formalized interview, taken under oath, generally during an investigation. A deposition is a formalized interview, taken under oath, generally
transcribed or recorded, and governed by chamber and committee rules.transcribed or recorded, and governed by chamber and committee rules.
the House authorize only the Committee on Oversight and the House authorize only the Committee on Oversight and Government Reform to take depositions.Reform to take depositions.
standing committees other than the Committee on Rules to take depositions.standing committees other than the Committee on Rules to take depositions.
Committees on Agriculture, Nutrition, and Forestry; Ethics; Homeland Security and Committees on Agriculture, Nutrition, and Forestry; Ethics; Homeland Security and
Governmental Affairs and its Permanent Subcommittee on Investigations; Indian Affairs; Foreign Governmental Affairs and its Permanent Subcommittee on Investigations; Indian Affairs; Foreign
Relations;Relations;
appear to have some form of deposition authority.appear to have some form of deposition authority.
the conduct of depositions in the House.the conduct of depositions in the House.
resolution.resolution.
investigations, including the ability to obtain sworn testimony quickly and confidentially without investigations, including the ability to obtain sworn testimony quickly and confidentially without
the necessity of Members devoting time to lengthy hearings that may be unproductive because the necessity of Members devoting time to lengthy hearings that may be unproductive because
witnesses do not have the facts needed by the committee or refuse to cooperate. Depositions also witnesses do not have the facts needed by the committee or refuse to cooperate. Depositions also
occur in private, which may be more conducive to candid responses than public hearings. occur in private, which may be more conducive to candid responses than public hearings.
Depositions also provide committees with an opportunity to verify witness statements that might Depositions also provide committees with an opportunity to verify witness statements that might
defame or tend to incriminate third parties before they are repeated publicly and defame or tend to incriminate third parties before they are repeated publicly and to prepare for prepare for
hearings by screening witness testimony in advance, which may obviate the need to call other hearings by screening witness testimony in advance, which may obviate the need to call other
witnesses. Congress has also enhanced the efficacy of the staff deposition process by establishing witnesses. Congress has also enhanced the efficacy of the staff deposition process by establishing
the applicability of criminal prohibition against false statements to statements made during the applicability of criminal prohibition against false statements to statements made during
congressional proceedings, including the taking of depositions.congressional proceedings, including the taking of depositions.
counsel. A deponent is instead entitled to be accompanied only by private, nongovernmental counsel. A deponent is instead entitled to be accompanied only by private, nongovernmental
counsel.counsel.
testify about potentially privileged matters while depriving the witness of the assistance of agency testify about potentially privileged matters while depriving the witness of the assistance of agency
counsel.counsel.
's view, view,
information and to supervise the Executive Branchinformation and to supervise the Executive Branch
entities.entities.
the Committee is able to depose witnesses in furtherance of its investigations without having in the Committee is able to depose witnesses in furtherance of its investigations without having in
the room representatives of the agency under investigation.the room representatives of the agency under investigation.
rule rule
" and permits the executive branch—and permits the executive branch—
at the deposition may implicate a valid Privilegeat the deposition may implicate a valid Privilege
privilege with the committee.218 The Subpoena Power
When possible, committees generally seek to obtain voluntary compliance with their requests for When possible, committees generally seek to obtain voluntary compliance with their requests for
documents, testimony, and other information.documents, testimony, and other information.
many voluntary requests are complied with either in part or in full. Even when a request is met many voluntary requests are complied with either in part or in full. Even when a request is met
with resistance, the disagreement may initiate the accommodations process, a long-standing with resistance, the disagreement may initiate the accommodations process, a long-standing
practice by which negotiations between the committee and the executive agency generally lead to practice by which negotiations between the committee and the executive agency generally lead to
a resolution acceptable to both parties.a resolution acceptable to both parties.
information which is volunteered is not always accurate or complete, so some means of information which is volunteered is not always accurate or complete, so some means of
compulsion are essential to obtain what is needed.compulsion are essential to obtain what is needed.
blocked by the withholding of information, or where the traditional process of negotiation and blocked by the withholding of information, or where the traditional process of negotiation and
accommodation222
documents—may be used to compel compliance with congressional demands.documents—may be used to compel compliance with congressional demands.
authority.authority.
enforce it, as a enforce it, as a
Supreme Court described the obligations that attach to a congressional subpoena as follows:Supreme Court described the obligations that attach to a congressional subpoena as follows:
obtain the facts needed for intelligent legislative action. It is their unremitting obligation to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to
respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation.testify fully with respect to matters within the province of proper investigation.
legal obligation to comply with a duly issued and valid congressional subpoena unless a valid and legal obligation to comply with a duly issued and valid congressional subpoena unless a valid and
overriding privilege or other legal justification excuses that compliance.227overriding privilege or other legal justification excuses that compliance.227
that authority by the parent chamber has the same force and effect as a subpoena issued by the that authority by the parent chamber has the same force and effect as a subpoena issued by the
House or Senate itself. Senate Rule XXVI(1) and House Rule XI(2)(m)(1) presently empower all House or Senate itself. Senate Rule XXVI(1) and House Rule XI(2)(m)(1) presently empower all
standing committees and subcommittees to issue subpoenas requiring the attendance and standing committees and subcommittees to issue subpoenas requiring the attendance and
testimony of witnesses and the production of documents.testimony of witnesses and the production of documents.
majority of committees now permit the committee chair to unilaterally issue a subpoena, usually majority of committees now permit the committee chair to unilaterally issue a subpoena, usually
after giving notice to or consulting with the ranking member.after giving notice to or consulting with the ranking member.
Subcommittee on Investigations Subcommittee on Investigations
without the consent of the ranking member.231without the consent of the ranking member.231
Limitations on Challenging a Subpoena
The Supreme Court has ruled that the separation of powers and the Speech or Debate Clause The Supreme Court has ruled that the separation of powers and the Speech or Debate Clause
restrict both a witnessrestrict both a witness
congressional subpoena generally may not challenge that subpoenacongressional subpoena generally may not challenge that subpoena
enforcement. Instead, the recipient may refuse to comply, risk being cited for criminal contempt enforcement. Instead, the recipient may refuse to comply, risk being cited for criminal contempt
or becoming the subject of a civil enforcement lawsuit (discussed below), and then raise the or becoming the subject of a civil enforcement lawsuit (discussed below), and then raise the
objections in the civil case or as a defense in the criminal prosecution.objections in the civil case or as a defense in the criminal prosecution.
lawsuits generally arise when a committee issues a subpoena for documents not to the target of lawsuits generally arise when a committee issues a subpoena for documents not to the target of
the investigation but rather to a third-party custodian of records.the investigation but rather to a third-party custodian of records.
with a personal interest in the records is with a personal interest in the records is
by refusing to comply with a subpoenaby refusing to comply with a subpoena
party to block compliance with the subpoena. The Supreme Court has suggested that the party to block compliance with the subpoena. The Supreme Court has suggested that the
Constitution Constitution
subcommittee] are not, themselves, made defendants in a suit to enjoin implementation of the subcommittee] are not, themselves, made defendants in a suit to enjoin implementation of the
subpoena.subpoena.
"235 Responding to
process by which Congress can coerce compliance or deter process by which Congress can coerce compliance or deter
be reduced to a formalized request rather than a constitutionally based demand for information.be reduced to a formalized request rather than a constitutionally based demand for information.
use the application of various forms of legislative leverage, along with an informal political use the application of various forms of legislative leverage, along with an informal political
process of negotiation and accommodation, to obtain what it needs.process of negotiation and accommodation, to obtain what it needs.
agency authority, funding, andagency authority, funding, and
officials.officials.
agency can encourage compliance with subpoenas (or make it more likely that requested agency can encourage compliance with subpoenas (or make it more likely that requested
information will be provided without need to issue a subpoena) and solidify Congressinformation will be provided without need to issue a subpoena) and solidify Congress
when trying to negotiate a compromise during an investigative dispute with the executive when trying to negotiate a compromise during an investigative dispute with the executive
branch.branch.
combination of methods to directly enforce its subpoenas. The two predominant methods rely on combination of methods to directly enforce its subpoenas. The two predominant methods rely on
the authority and participation of another branch of government. First, the the authority and participation of another branch of government. First, the criminal contempt
statute permits a single house of Congress to certify a contempt citation to the executive branch statute permits a single house of Congress to certify a contempt citation to the executive branch
for the criminal prosecution of an individual who has willfully refused to comply with a for the criminal prosecution of an individual who has willfully refused to comply with a
committee subpoena.committee subpoena.
the control of the executive branch.the control of the executive branch.
seeking a civil judgment declaring that the recipient is legally obligated to comply.seeking a civil judgment declaring that the recipient is legally obligated to comply.
process of process of civil enforcement relies on the help of the courts to enforce congressional demands. relies on the help of the courts to enforce congressional demands.
Criminal Contempt of Congress
The criminal contempt of Congress statute, enacted in 1857 and only slightly modified since, The criminal contempt of Congress statute, enacted in 1857 and only slightly modified since,
makes the failure to comply with a duly issued congressional subpoena a criminal offense.makes the failure to comply with a duly issued congressional subpoena a criminal offense.
statute, now codified under 2 U.S.C. § 192, provides that any person who statute, now codified under 2 U.S.C. § 192, provides that any person who
misdemeanor, punishable by a substantial fine and imprisonment for up to one year.misdemeanor, punishable by a substantial fine and imprisonment for up to one year.
committee reports the failure to comply with a subpoena to its parent body, the President of the committee reports the failure to comply with a subpoena to its parent body, the President of the
Senate or the Speaker of the House is directed to Senate or the Speaker of the House is directed to
appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury
for its action.for its action.
approval may be necessary.approval may be necessary.
incarceration, a fine, or both.incarceration, a fine, or both.
mainly as a deterrent. In other words, while the threat of criminal contempt can be used as mainly as a deterrent. In other words, while the threat of criminal contempt can be used as
leverage to encourage compliance with a specific request, a conviction does not necessarily lead leverage to encourage compliance with a specific request, a conviction does not necessarily lead
to release of the information to Congress.to release of the information to Congress.
duty on the U.S. Attorney to submit the violation to a grand jury, the executive branch has duty on the U.S. Attorney to submit the violation to a grand jury, the executive branch has
repeatedly asserted that it retains the discretion to determine whether to do so.repeatedly asserted that it retains the discretion to determine whether to do so.
efforts to punish an executive branch official for efforts to punish an executive branch official for
through the criminal contempt of Congress statute through the criminal contempt of Congress statute
circumstances. For example, when the President directs or endorses the circumstances. For example, when the President directs or endorses the
official, such as when the official official, such as when the official
DOJ is unlikely to pursue a prosecution for criminal contempt.DOJ is unlikely to pursue a prosecution for criminal contempt.
there is not currently a credible threat of prosecution for violating 2 U.S.C. § 192 when an there is not currently a credible threat of prosecution for violating 2 U.S.C. § 192 when an
against a witness whose against a witness whose
when the sitting President does not concur with the former Presidentwhen the sitting President does not concur with the former President
branch has contended that it retains the authority to make an independent assessment of whether branch has contended that it retains the authority to make an independent assessment of whether
the official (or former official) has in fact violated the criminal contempt statute.the official (or former official) has in fact violated the criminal contempt statute.
executive branch determines either that the statute has not been violated or that a defense is executive branch determines either that the statute has not been violated or that a defense is
available that would bar the prosecution, then it available that would bar the prosecution, then it asserts that it may—in an exercise of discretion—leave a may—in an exercise of discretion—leave a
congressional citation unenforced. The criminal contempt statute, therefore, may have limited congressional citation unenforced. The criminal contempt statute, therefore, may have limited
utility as a deterrent to utility as a deterrent to
officials faced with similar circumstances.officials faced with similar circumstances.
254 Civil Enforcement of Subpoenas
Both the House and Both the House and the Senate have also enforced subpoenas through civil suits in the federal courts Senate have also enforced subpoenas through civil suits in the federal courts
by a process known as civil enforcement. Under this process, either chamber may unilaterally by a process known as civil enforcement. Under this process, either chamber may unilaterally
authorize one of its committees or another legislative entity to file a suit in federal district court authorize one of its committees or another legislative entity to file a suit in federal district court
seeking a court order declaring that the subpoena recipient is legally required to comply with the seeking a court order declaring that the subpoena recipient is legally required to comply with the
demand for information.demand for information.
congressional subpoena—meaning the committee may obtain the information it seeks. If the court congressional subpoena—meaning the committee may obtain the information it seeks. If the court
orders compliance with the subpoena and disclosure of the information, generally after finding orders compliance with the subpoena and disclosure of the information, generally after finding
both that the subpoena is valid and that the individual has not invoked an adequate privilege both that the subpoena is valid and that the individual has not invoked an adequate privilege
justifying justifying
contempt of Congress.256contempt of Congress.256
enforcement lawsuits, at least against current or former executive branch officials, a enforcement lawsuits, at least against current or former executive branch officials, a
especially by the House, especially by the House,
a simple House or Senate resolution.a simple House or Senate resolution.
part of the existing statutory framework governing that chamberpart of the existing statutory framework governing that chamber
court.court.
specific authorizing resolution, the chair of each standing committee also specific authorizing resolution, the chair of each standing committee also
initiate initiate
any subpoena duly issued by that committee to comply with that subpoenaany subpoena duly issued by that committee to comply with that subpoena
do so by the Bipartisan Legal Advisory Group (BLAG).do so by the Bipartisan Legal Advisory Group (BLAG).
authorization from BLAG in the subpoena enforcement context authorization from BLAG in the subpoena enforcement context
full House of Representatives.full House of Representatives.
power.power.
District Court) has jurisdiction District Court) has jurisdiction
subcommittee of the Senate to enforce subcommittee of the Senate to enforce
the grant of jurisdiction is limited and the grant of jurisdiction is limited and
to an executive branch official acting in his or her official capacity who has asserted a to an executive branch official acting in his or her official capacity who has asserted a
within § 1365 does not necessarily bar the courts from exercising jurisdiction over Senate claims within § 1365 does not necessarily bar the courts from exercising jurisdiction over Senate claims
authorized its committees to enforce their subpoenas in court.authorized its committees to enforce their subpoenas in court.
's authority in this regard has been subject to some debate. The D.C. Circuit, for example, wrestled authority in this regard has been subject to some debate. The D.C. Circuit, for example, wrestled
with the question of civil enforcement in with the question of civil enforcement in Committee on the Judiciary v. McGahn. In . In McGahn, the , the
House initiated a suit to enforce a committee subpoena for testimony from former White House House initiated a suit to enforce a committee subpoena for testimony from former White House
Counsel Counsel
district court decisions, the opinion held that the judiciary district court decisions, the opinion held that the judiciary
between the Legislative and Executive Branches until their actions harm an entity between the Legislative and Executive Branches until their actions harm an entity
[Federal] Government.[Federal] Government.
Circuit holding en banc that neither the separation of powers nor principles of standing barred the Circuit holding en banc that neither the separation of powers nor principles of standing barred the
courts from hearing the Housecourts from hearing the House
rejected the Houserejected the House
reaching that decision, the panel relied partly on the fact that reaching that decision, the panel relied partly on the fact that
cause of action to the Senate—but not to the House.cause of action to the Senate—but not to the House.
this second panel decision on whether the committee had a cause of action was vacated after it this second panel decision on whether the committee had a cause of action was vacated after it
was accepted for en banc review.was accepted for en banc review.
settlement by which settlement by which
agreement, the D.C. Circuit fully vacated the panel opinion agreement, the D.C. Circuit fully vacated the panel opinion
lacked a cause of action, but the en banc decision holding that the committee had standing to lacked a cause of action, but the en banc decision holding that the committee had standing to
pursue these subpoena enforcement claims remains in place.pursue these subpoena enforcement claims remains in place.
impact of the impact of the McGahn litigation appears to have been to remove the standing hurdle to House litigation appears to have been to remove the standing hurdle to House
committees committees
The Historical Process: Inherent Contempt
Historically, the House and Senate relied on their own institutional power to not only enforce Historically, the House and Senate relied on their own institutional power to not only enforce
not enacted until 1857, and the courts do not appear to have entertained a civil action to enforce a not enacted until 1857, and the courts do not appear to have entertained a civil action to enforce a
congressional subpoena against an executive official until the Watergate era.congressional subpoena against an executive official until the Watergate era.
American historyAmerican history, the House and Senate instead used what is known as the inherent contempt the House and Senate instead used what is known as the inherent contempt
power to enforce their investigative powers.power to enforce their investigative powers.
unilaterally arrest and detain an individual found to be unilaterally arrest and detain an individual found to be
duties of the legislature.duties of the legislature.
statute in that it may be used not only to combat subpoena statute in that it may be used not only to combat subpoena
other actions that could be viewed as other actions that could be viewed as
legislative powers.legislative powers.
adopting a House or Senate resolution authorizing the execution of an arrest warrant by that adopting a House or Senate resolution authorizing the execution of an arrest warrant by that
taken into custody and brought before the House or Senate.taken into custody and brought before the House or Senate.
which allegations are heard and defenses raised.which allegations are heard and defenses raised.
body, it would appear likely that body, it would appear likely that
obstruction to the exercise of legislative power is removed.obstruction to the exercise of legislative power is removed.
detention may vary, for subpoena detention may vary, for subpoena
punitive.punitive.
sought but not beyond the end of the Congress.sought but not beyond the end of the Congress.
power.power.
specifically granted by the Constitution, it is still specifically granted by the Constitution, it is still
legislative functionlegislative function
Congress.Congress.
the the
cumbersome, inefficient, and cumbersome, inefficient, and
either house has exercised its inherent contempt power to enforce subpoenas or to remove any either house has exercised its inherent contempt power to enforce subpoenas or to remove any
other obstruction to the exercise of the legislative power since the 1930s.other obstruction to the exercise of the legislative power since the 1930s.
threat of arrest and detention by the Sergeant at Arms can threat of arrest and detention by the Sergeant at Arms can
congressional demands. For example, Senator Sam Ervin, when serving as chair of the Senate congressional demands. For example, Senator Sam Ervin, when serving as chair of the Senate
Select Committee on Presidential Campaign Activities, invoked the inherent contempt power Select Committee on Presidential Campaign Activities, invoked the inherent contempt power
several times to encourage compliance with the committeeseveral times to encourage compliance with the committee
remains a tool that Congress may use to enforce subpoenas.remains a tool that Congress may use to enforce subpoenas.
290 Criminal Provisions Protecting the Investigative Power
Along with the criminal contempt statute already discussed, Congress has enacted various Along with the criminal contempt statute already discussed, Congress has enacted various
criminal provisions to protect the integrity of congressional investigations. While these provisions criminal provisions to protect the integrity of congressional investigations. While these provisions
generally seek to deter witnesses from misleading or obstructing congressional committees in generally seek to deter witnesses from misleading or obstructing congressional committees in
their exercise of the investigative power, they cannot be enforced directly by Congress, nor can their exercise of the investigative power, they cannot be enforced directly by Congress, nor can
committees compel enforcement by the executive branch. Instead, enforcement decisions—as committees compel enforcement by the executive branch. Instead, enforcement decisions—as
with all criminal provisions—are made wholly by the executive branch. A committee may refer a with all criminal provisions—are made wholly by the executive branch. A committee may refer a
possible offense to the DOJ with a recommendation that an investigation be initiated, but the possible offense to the DOJ with a recommendation that an investigation be initiated, but the
ultimate decision on prosecution is retained by the executive branch.291ultimate decision on prosecution is retained by the executive branch.291
Testimony Under Oath
A witness under oath before a congressional committee who willfully gives false testimony is A witness under oath before a congressional committee who willfully gives false testimony is
subject to prosecution for perjury under 18 U.S.C. § 1621. The false statement must be subject to prosecution for perjury under 18 U.S.C. § 1621. The false statement must be
must be present for a legislative committee to be competent for perjury purposes.must be present for a legislative committee to be competent for perjury purposes.
have adopted rules establishing less than a majority of members as a quorum for taking testimony, have adopted rules establishing less than a majority of members as a quorum for taking testimony,
normally two members for House normally two members for House
requisite quorum must be present at the time the alleged perjurious statement is made, not merely requisite quorum must be present at the time the alleged perjurious statement is made, not merely
at the time the session convenes.at the time the session convenes.
in the presence of committee staff unless the committee has deposition authority and has taken in the presence of committee staff unless the committee has deposition authority and has taken
formal action to allow it.297formal action to allow it.297
Unsworn Statements
Most statements made to congressional committees at both the investigatory and the hearing Most statements made to congressional committees at both the investigatory and the hearing
phases of oversight are unsworn. Even when phases of oversight are unsworn. Even when a witness is not under oath, providing willfully false testimony is still a criminal offense.298 Under 18 U.S.C. § 1001, false statements by a person in "any
investigation or review, conducted pursuant to the authority of any committee, subcommittee, investigation or review, conducted pursuant to the authority of any committee, subcommittee,
commission or office of the Congress, consistent with applicable rules of the House and Senatecommission or office of the Congress, consistent with applicable rules of the House and Senate
," are punishable by a fine of up to $250,000 or imprisonment for not more than five years, or are punishable by a fine of up to $250,000 or imprisonment for not more than five years, or
both.both.
hearings and depositions but also other interviews with committee staff.hearings and depositions but also other interviews with committee staff.
Obstruction of a Congressional Proceeding
Federal law also criminalizes certain acts that would obstruct a congressional investigation. Federal law also criminalizes certain acts that would obstruct a congressional investigation.
Under 18 U.S.C. § 1505Under 18 U.S.C. § 1505, it is unlawful to it is unlawful to
proper exercise of the power of inquiry under which any inquiry or investigation is being had by proper exercise of the power of inquiry under which any inquiry or investigation is being had by
either House, or any committee of either House or any joint committee of the Congress.either House, or any committee of either House or any joint committee of the Congress.
Corruptly, for purposes of the statute, means , for purposes of the statute, means
influencing another, including making a false or misleading statement, or withholding, influencing another, including making a false or misleading statement, or withholding,
concealing, altering, or destroying a document or other information.concealing, altering, or destroying a document or other information.
"301 Limitations on Congressional Authority
The previous section established the scope of CongressThe previous section established the scope of Congress
addresses how the exercise of this power may be constrained by the Constitution, the common-addresses how the exercise of this power may be constrained by the Constitution, the common-
law tradition, or federal statute.law tradition, or federal statute.
Constitutional Limitations
of Congressof Congress
limited by constraints found elsewhere in the limited by constraints found elsewhere in the
Court has observed that when demanding information, Court has observed that when demanding information,
of the Government, must exercise its powers subject to the limitations placed by the Constitution of the Government, must exercise its powers subject to the limitations placed by the Constitution
on governmental action,on governmental action,
investigation.investigation.
"304 First Amendment
Although the First Amendment, by its terms, is expressly applicable only to Although the First Amendment, by its terms, is expressly applicable only to legislation that that
abridges freedom of speech, press, religion (establishment or free exercise), or assembly, the abridges freedom of speech, press, religion (establishment or free exercise), or assembly, the
Supreme Court has held that the First Amendment also restricts Congress in conducting oversight Supreme Court has held that the First Amendment also restricts Congress in conducting oversight
and investigations.and investigations.
involves a balancing by the courts of the competing private and public interests at stake in the involves a balancing by the courts of the competing private and public interests at stake in the
particular circumstances shown.particular circumstances shown.
congressional need for information, the Court has declared that congressional need for information, the Court has declared that
existence of, and the weight to be ascribed to, the interest of the Congress in demanding existence of, and the weight to be ascribed to, the interest of the Congress in demanding
disclosure from an unwilling witness.disclosure from an unwilling witness.
the First Amendment, the Court has generally emphasized the requirements discussed above the First Amendment, the Court has generally emphasized the requirements discussed above
concerning authorization for the investigation, delegation of power to investigate to the concerning authorization for the investigation, delegation of power to investigate to the
committee involved, and the existence of a legislative purpose.308committee involved, and the existence of a legislative purpose.308
Court has never relied on the First Amendment to invalidate a congressional subpoena or to Court has never relied on the First Amendment to invalidate a congressional subpoena or to
reverse a criminal contempt of Congress conviction. And unlike the Fifth Amendment privilege reverse a criminal contempt of Congress conviction. And unlike the Fifth Amendment privilege
against self-incrimination, it is clear that the First Amendment does not give a witness an absolute against self-incrimination, it is clear that the First Amendment does not give a witness an absolute
right to refuse to respond to congressional demands for information.right to refuse to respond to congressional demands for information.
a non-cooperative witness in contempt of Congress. The Special Subcommittee on Investigations a non-cooperative witness in contempt of Congress. The Special Subcommittee on Investigations
of the House Committee on Interstate and Foreign Commerce (since renamed the Committee on of the House Committee on Interstate and Foreign Commerce (since renamed the Committee on
Energy and Commerce), in the course of its probe of allegations that deceptive editing practices Energy and Commerce), in the course of its probe of allegations that deceptive editing practices
were employed in producing the television news documentary program were employed in producing the television news documentary program The Selling of the
Pentagon, subpoenaed Frank Stanton, the president of CBS. He was directed to deliver to the , subpoenaed Frank Stanton, the president of CBS. He was directed to deliver to the
subcommittee the subcommittee the
declined to provide the subpoenaed materials, the subcommittee unanimously voted a contempt declined to provide the subpoenaed materials, the subcommittee unanimously voted a contempt
citation. The full committee voted 25-13 to report the contempt citation to the full House.citation. The full committee voted 25-13 to report the contempt citation to the full House.
extensive debate, the House failed to adopt the committee report, voting instead to recommit the extensive debate, the House failed to adopt the committee report, voting instead to recommit the
matter to the committee.matter to the committee.
involve the government in the regulation of the press.313involve the government in the regulation of the press.313
Fourth Amendment
The Fourth Amendment primarily protects congressional witnesses against subpoenas that are The Fourth Amendment primarily protects congressional witnesses against subpoenas that are
unreasonably broad or burdensome.unreasonably broad or burdensome.
received little attention in the courts. In one of the few cases addressing the issue, the Supreme received little attention in the courts. In one of the few cases addressing the issue, the Supreme
Court held in the 1960 case Court held in the 1960 case McPhaul v. United States that a congressional subpoena seeking that a congressional subpoena seeking
records, correspondence, and memorandarecords, correspondence, and memoranda
Court explained:Court explained:
nature,nature,
purposes, and scope of the inquiry." The subcommittee's inquiry here was a relatively broad one ... and the permissible scope of materials that could reasonably be sought was necessarily equally broad. It is not reasonable to suppose that the subcommittee sought was necessarily equally broad. It is not reasonable to suppose that the subcommittee
knew precisely what books and records were kept by the [organization], and therefore the knew precisely what books and records were kept by the [organization], and therefore the
subpoena could only subpoena could only
the committee investigation.the committee investigation.
Fifth Amendment Privilege Against Self-Incrimination
The privilege against self-incrimination afforded by the Fifth Amendment is available to a The privilege against self-incrimination afforded by the Fifth Amendment is available to a
witness in a congressional investigation.witness in a congressional investigation.
during a congressional investigation only with regard to disclosures that areduring a congressional investigation only with regard to disclosures that are
qualifies as testimonial and compelled. Therefore, the central inquiry in a congressional qualifies as testimonial and compelled. Therefore, the central inquiry in a congressional
investigation setting is typically whether the responsive testimony would be investigation setting is typically whether the responsive testimony would be
Supreme Court has taken a broad view of what constitutes incriminating testimony, reasoning that Supreme Court has taken a broad view of what constitutes incriminating testimony, reasoning that
the privilege protects any statement the privilege protects any statement
criminal prosecution or could lead to other evidence that might so be used.criminal prosecution or could lead to other evidence that might so be used.
who denies any criminal wrongdoing can refuse to answer questions to avoid being who denies any criminal wrongdoing can refuse to answer questions to avoid being
ambiguous circumstances.ambiguous circumstances.
produce documents. The Supreme Court has made clear that the produce documents. The Supreme Court has made clear that the
document document
disclosure under the Fifth Amendment.disclosure under the Fifth Amendment.
itself incriminating that the Fifth Amendment is triggered. That itself incriminating that the Fifth Amendment is triggered. That
compelled act and compelled act and
would in fact be admitting that would in fact be admitting that
authentic.authentic.
reasoned that where the existence and location of a document is a reasoned that where the existence and location of a document is a
witness witness
he in fact has the papers.he in fact has the papers.
triggered because triggered because
appear that where a committee has no appear that where a committee has no
potentially privileged.potentially privileged.
a committee should recognize any reasonable indication that the witness is asserting his a committee should recognize any reasonable indication that the witness is asserting his
privilege.privilege.
self-incrimination or is claiming some other basis for declining to answer, the committee should self-incrimination or is claiming some other basis for declining to answer, the committee should
direct the witness to specify his or her privilege or objection.direct the witness to specify his or her privilege or objection.
review the assertion of the privilege by a witness to determine its validity, but the witness is not review the assertion of the privilege by a witness to determine its validity, but the witness is not
required to provide further explanation if that explanation would put him or her in peril of self-required to provide further explanation if that explanation would put him or her in peril of self-
incrimination. In addition, the privilege incrimination. In addition, the privilege
will be unable to obtain the testimony or documents that it seeks. Under federal statute, when a will be unable to obtain the testimony or documents that it seeks. Under federal statute, when a
witness asserts the privilege, the full house or the committee conducting the investigation may witness asserts the privilege, the full house or the committee conducting the investigation may
seek a court order that (1) directs the witness to testify and (2) grants the witness immunity seek a court order that (1) directs the witness to testify and (2) grants the witness immunity
against the use of his or her testimony, or other evidence derived from this testimony, in a against the use of his or her testimony, or other evidence derived from this testimony, in a
subsequent criminal prosecution.subsequent criminal prosecution.
immunized testimony that the witness gives nor evidence derived therefrom may be used against immunized testimony that the witness gives nor evidence derived therefrom may be used against
him or her in a subsequent criminal prosecutionhim or her in a subsequent criminal prosecution
or her testimony.or her testimony.
the basis of other evidence.333the basis of other evidence.333
Senate or by a two-thirds vote of the full committee seeking the order.Senate or by a two-thirds vote of the full committee seeking the order.
must be notified at least 10 days prior to the request for the order and can request a delay of 20 must be notified at least 10 days prior to the request for the order and can request a delay of 20
days in issuing the order.days in issuing the order.
's appearance,appearance,
has invoked privilege, and has been presented with the court order.has invoked privilege, and has been presented with the court order.
the order has been viewed as ministerialthe order has been viewed as ministerial
on the grant of immunity.338on the grant of immunity.338
Fifth Amendment Due Process Rights
A witness or participant in a congressional investigation need not be accorded the same A witness or participant in a congressional investigation need not be accorded the same
procedural rights and protections that are commonly seen in adjudicative proceedings. While the procedural rights and protections that are commonly seen in adjudicative proceedings. While the
procedural protections of the Fifth Amendmentprocedural protections of the Fifth Amendment
proceedings in some limited manner, the precise proceedings in some limited manner, the precise
on the nature of the proceeding.on the nature of the proceeding.
legislative or oversight purposes, is not a judicial or adjudicative proceeding but is instead an legislative or oversight purposes, is not a judicial or adjudicative proceeding but is instead an
finding investigation is being conducted, it is not necessary that the full panoply of judicial finding investigation is being conducted, it is not necessary that the full panoply of judicial
procedures be used.procedures be used.
distinguishing factorsdistinguishing factors
"cause" congressional investigations congressional investigations
in contempt of Congress prosecutions. The Supreme Court has held that to punish a witness for in contempt of Congress prosecutions. The Supreme Court has held that to punish a witness for
failure to comply with a congressional subpoena, the relationship of the question posed to the failure to comply with a congressional subpoena, the relationship of the question posed to the
matter under inquiry matter under inquiry
duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for
the record the subject under inquiry at that time and the manner in which the propounded the record the subject under inquiry at that time and the manner in which the propounded
questions are pertinent thereto.questions are pertinent thereto.
requirement of due process requirement of due process
privileges asserted.344privileges asserted.344
Common-Law Privileges
the Constitution and those that arise from the common law.the Constitution and those that arise from the common law.
recognize and accept properly asserted constitutional privileges during an investigation, it has recognize and accept properly asserted constitutional privileges during an investigation, it has
common-law privileges,common-law privileges,
be made by the committee by be made by the committee by
resulting injury.resulting injury.
its constitutionally based investigative powers cannot be impeded by court-created, common-law its constitutionally based investigative powers cannot be impeded by court-created, common-law
limitations and that each chamberlimitations and that each chamber
includes the authority to establish investigative and hearing procedures that govern the treatment includes the authority to establish investigative and hearing procedures that govern the treatment
of certain privileges within those proceedings.of certain privileges within those proceedings.
congressional practice. In nonbinding dicta, the Court stated in congressional practice. In nonbinding dicta, the Court stated in
that, in addition to retaining their constitutional rights, recipients of a committee subpoena that, in addition to retaining their constitutional rights, recipients of a committee subpoena
long been understood to retain long been understood to retain common law and constitutional privileges with respect to certain with respect to certain
indicate that the Court may view common-law privileges as applicable in a congressional indicate that the Court may view common-law privileges as applicable in a congressional
proceeding.proceeding.
privileges can be used to shield information from Congress. Nor is it clear how a non-privileges can be used to shield information from Congress. Nor is it clear how a non-
constitutional, common-law privilege could be a legal constraint upon Congressconstitutional, common-law privilege could be a legal constraint upon Congress
implied Article I powers.implied Article I powers.
could be described as an informal understanding—arising from House and Senate practice—that could be described as an informal understanding—arising from House and Senate practice—that
committees at times choose to recognize and accept common-law privileges, especially the committees at times choose to recognize and accept common-law privileges, especially the
attorney-client privilege. To the extent, however, that the Court was suggesting the existence of a attorney-client privilege. To the extent, however, that the Court was suggesting the existence of a
legal obligation, it would appear that neither the House nor the Senate has historically legal obligation, it would appear that neither the House nor the Senate has historically
Attorney-Client Privilege
The attorney-client privilege, which protects confidential communications made with an attorney The attorney-client privilege, which protects confidential communications made with an attorney
to obtain legal advice or assistance, is one of the oldest common-law exceptions to the normal to obtain legal advice or assistance, is one of the oldest common-law exceptions to the normal
principle of full disclosure in the judicial process.principle of full disclosure in the judicial process.
discretion in accepting a claim of attorney-client privilege has turned on a discretion in accepting a claim of attorney-client privilege has turned on a
legislative need for disclosure against any possible resulting injurylegislative need for disclosure against any possible resulting injury
case-by-case basis, a committee can consider, among other factors:case-by-case basis, a committee can consider, among other factors:
Doubt as to the validity of the asserted claimDoubt as to the validity of the asserted claim
Other Common-Law Testimonial Privileges
The Federal Rules of Evidence recognize testimonial privileges for witnesses in judicial The Federal Rules of Evidence recognize testimonial privileges for witnesses in judicial
proceedings so that they need not reveal confidential communications between doctor and patient, proceedings so that they need not reveal confidential communications between doctor and patient,
husband and wife, or clergyman and parishioner.husband and wife, or clergyman and parishioner.
themselves as legally required to allow themselves as legally required to allow
or similar testimonial privileges.similar testimonial privileges.
generally applicable to judicial proceedings, such as the right to cross-examine and call other generally applicable to judicial proceedings, such as the right to cross-examine and call other
witnesses.361 Executive Privilege
requests for information. The foundation for these privileges is not always clear, as some derive requests for information. The foundation for these privileges is not always clear, as some derive
from the Constitution, others from the common law, and still others from a combination of from the Constitution, others from the common law, and still others from a combination of
both.both.
possessing a different—though sometimes overlapping—scope.possessing a different—though sometimes overlapping—scope.
support of their oftensupport of their often
on these different component privileges. Whereas Congress has generally interpreted executive on these different component privileges. Whereas Congress has generally interpreted executive
privilege narrowly, limiting its application to the types of presidential, national security, and privilege narrowly, limiting its application to the types of presidential, national security, and
diplomatic communications referenced by the Supreme Court in the seminal decision of diplomatic communications referenced by the Supreme Court in the seminal decision of United
States v. Nixon,,
providing protections to a number of different categories of documents and communications that providing protections to a number of different categories of documents and communications that
implicate executive branch confidentiality interests.implicate executive branch confidentiality interests.
's interpretation, these privileges include:interpretation, these privileges include:the
relate to presidential decisionmaking, as well as a certain subset of relate to presidential decisionmaking, as well as a certain subset of
communications not involving the President but nonetheless made for communications not involving the President but nonetheless made for
purposes of advising the President;purposes of advising the President;
to investigative and prosecutorial decisionmaking.to investigative and prosecutorial decisionmaking.
privilege,privilege,
committees, on the other hand, have typically distinguished between the different individual committees, on the other hand, have typically distinguished between the different individual
privileges.privileges.
protect different types of communications and appear to arise from different sources of law (e.g., protect different types of communications and appear to arise from different sources of law (e.g.,
the Constitution, judicial common law, or history and practice)the Constitution, judicial common law, or history and practice), with some more firmly established with some more firmly established
in judicial precedent than others. As a result, the privileges apply with different strengths and are in judicial precedent than others. As a result, the privileges apply with different strengths and are
balanced against judicial or congressional needs in different ways. For example, when faced with balanced against judicial or congressional needs in different ways. For example, when faced with
a dispute over compelled disclosure, courts have a dispute over compelled disclosure, courts have
presidential claims of a need to protect military or diplomatic secrets.presidential claims of a need to protect military or diplomatic secrets.
generalized interest in the confidentiality of his other communications (the presidential generalized interest in the confidentiality of his other communications (the presidential
communications privilege), though also arising implicitly from the Constitution, has not been communications privilege), though also arising implicitly from the Constitution, has not been
of Congressof Congress
communications privilege, the deliberative process privilege is more easily overcome by communications privilege, the deliberative process privilege is more easily overcome by
Congress and Congress and
occurred.occurred.
from the presidential communications privilege, as the former arises from the presidential communications privilege, as the former arises
common common
rooted in the separation of powers.rooted in the separation of powers.
from historical practice or reflect the judicial common law. These have generally been viewed, at from historical practice or reflect the judicial common law. These have generally been viewed, at
least by Congress, as legally insufficient to justify least by Congress, as legally insufficient to justify
subpoena.subpoena.
implicated in congressional oversight investigations because it gives protection to the implicated in congressional oversight investigations because it gives protection to the
decisionmaking process that Congress is often intent on understanding.decisionmaking process that Congress is often intent on understanding.
the privilege is to protect the the privilege is to protect the
freedom to debate alternative approaches in private.freedom to debate alternative approaches in private.
applies only to those documents and communications that are applies only to those documents and communications that are predecisional, meaning they are , meaning they are
created prior to the agency reaching its final decision, and created prior to the agency reaching its final decision, and deliberative, meaning they relate to the , meaning they relate to the
thought process of executive officials and are not purely factual.thought process of executive officials and are not purely factual.
entire documents. Rather, the executive branch must disclose non-privileged factual information entire documents. Rather, the executive branch must disclose non-privileged factual information
adequate showing of need.adequate showing of need.
Congress and the executive branch suggest that a reviewing courtCongress and the executive branch suggest that a reviewing court
purpose and interests underlying a committee investigation plays a significant role in a courtpurpose and interests underlying a committee investigation plays a significant role in a court
's willingness to enforce a subpoena.willingness to enforce a subpoena.
but its weight may be colored by various outside factors, including but its weight may be colored by various outside factors, including
example, in example, in Senate Select Committee on Presidential Campaign Activities v. Nixon, a case , a case
involving a subpoena issued by a Senate committee for President Nixoninvolving a subpoena issued by a Senate committee for President Nixon
D.C. Circuit held that the committeeD.C. Circuit held that the committee
the committeethe committee
the committeethe committee
impeachment investigation.impeachment investigation.
in the court's view and was similarly undercut by the fact that President Nixon had publicly released transcripts of and was similarly undercut by the fact that President Nixon had publicly released transcripts of
the tapes. Those transcripts, the court reasoned, were a suitable substitute for the tapesthe tapes. Those transcripts, the court reasoned, were a suitable substitute for the tapes, since the since the
events.events.
investigation into the January 6, 2021, investigation into the January 6, 2021,
then-former President Donald Trump seeking to block the National Archives from disclosing his former President Donald Trump seeking to block the National Archives from disclosing his
presidential records to the House Select Committee to Investigate the January 6th Attack on the presidential records to the House Select Committee to Investigate the January 6th Attack on the
United States Capitol on the grounds that the records were protected by the presidential United States Capitol on the grounds that the records were protected by the presidential
communications privilege.communications privilege.
of executive privilege was, in light of the of executive privilege was, in light of the
of executive privilege, the bottom-line question has been whether a sufficient showing of need for of executive privilege, the bottom-line question has been whether a sufficient showing of need for
disclosure has been made so that the claim of presidential privilege disclosure has been made so that the claim of presidential privilege
whether the committee had shown such a need, the court noted that President Bidenwhether the committee had shown such a need, the court noted that President Biden
not to assert executive privilege not to assert executive privilege
disputes between congressional committees and a former President, the court instead held that disputes between congressional committees and a former President, the court instead held that
disclosure advanced by President Biden and the January 6th Committee far exceed his generalized disclosure advanced by President Biden and the January 6th Committee far exceed his generalized
concerns for Executive Branch confidentiality.concerns for Executive Branch confidentiality.
of the applicable congressional investigation as unusual, possibly in an effort to limit each of the applicable congressional investigation as unusual, possibly in an effort to limit each
contrasts with contrasts with Senate Select Committee in two key ways. First, in in two key ways. First, in Thompson, the actions of the sitting , the actions of the sitting
President strengthenedPresident strengthened, rather than weakened rather than weakened, Congress Congress
legislating,legislating,
interests squarely within Congressinterests squarely within Congress
of its constitutionally assigned business.of its constitutionally assigned business.
applicable standard, even one reserved for executive privilege claims made by a sitting President, applicable standard, even one reserved for executive privilege claims made by a sitting President,
the former Presidentthe former President
interest in access.interest in access.
and block the National Archives from transferring the records to the committee. That appeal was and block the National Archives from transferring the records to the committee. That appeal was
denied, thereby effectively affirming the D.C. Circuit ruling.denied, thereby effectively affirming the D.C. Circuit ruling.
Court clarified thatCourt clarified that, because the D.C. Circuit had because the D.C. Circuit had
have failed even if he were the incumbent ... have failed even if he were the incumbent ...
former President must therefore be regarded as nonbinding dicta.former President must therefore be regarded as nonbinding dicta.
be overcome by Congress.be overcome by Congress.
Statutory Limits on Congressional Access to Information
specific types of information. One example of such self-limiting action is 26 U.S.C. § 6103(f), specific types of information. One example of such self-limiting action is 26 U.S.C. § 6103(f),
under which the House Committee on Ways and Means, the Senate Committee on Finance, and under which the House Committee on Ways and Means, the Senate Committee on Finance, and
the Joint Committee on Taxation are permitted access to individualsthe Joint Committee on Taxation are permitted access to individuals
committee to receive such information, the House or Senate must pass a committee to receive such information, the House or Senate must pass a
the purpose for which the information is to be furnished and that the requested information cannot the purpose for which the information is to be furnished and that the requested information cannot
be reasonably obtained from any other source.be reasonably obtained from any other source.
requesting committee is sitting in closed executive session.requesting committee is sitting in closed executive session.
oversight of oversight of
congressional intelligence committees are congressional intelligence committees are
oversight of intelligence activities that are not covert actions, and oversight of intelligence activities that are not covert actions, and
of covert actions. Each section imposes a duty on the Director of National Intelligence and the of covert actions. Each section imposes a duty on the Director of National Intelligence and the
heads of other entities involved in intelligence activities toheads of other entities involved in intelligence activities to
matters matters
all intelligence activities, other than a covert actionall intelligence activities, other than a covert action[,] . .
engaged in by, or are carried out for or on behalf of, any department, agency, or entity of engaged in by, or are carried out for or on behalf of, any department, agency, or entity of
the United States Government.the United States Government.
generally prohibit public disclosure of information also restrict congressional access.generally prohibit public disclosure of information also restrict congressional access.409 Federal Federal
congressional requestor is not considered to be a disclosure to the general public.congressional requestor is not considered to be a disclosure to the general public.
many confidentiality statutes contain explicit exceptions for disclosure to Congress.many confidentiality statutes contain explicit exceptions for disclosure to Congress.
have argued that certain statutes of general applicability prevent the disclosure of confidential or have argued that certain statutes of general applicability prevent the disclosure of confidential or
sensitive information to congressional committees. For example, a frequently cited statute to sensitive information to congressional committees. For example, a frequently cited statute to
justify nondisclosure is the Trade Secrets Act, a criminal provision that generally prohibits the justify nondisclosure is the Trade Secrets Act, a criminal provision that generally prohibits the
disclosure of trade secrets and other confidential business information by a federal officer or disclosure of trade secrets and other confidential business information by a federal officer or
employee employee
history, however, provides no indication that it was ever intended to apply to Congress, its history, however, provides no indication that it was ever intended to apply to Congress, its
employees, or any legislative branch agency or its employees.employees, or any legislative branch agency or its employees.
on a general nondisclosure statute that is silent with respect to congressional disclosure, the on a general nondisclosure statute that is silent with respect to congressional disclosure, the
committee may have to take additional steps to access the information. Potential solutions include committee may have to take additional steps to access the information. Potential solutions include
negotiations with the target; accommodations in the form of accepted redactions or other means negotiations with the target; accommodations in the form of accepted redactions or other means
of providing the information; or a of providing the information; or a
individual with the necessary legal cover to assist the committee with its inquiry. Each of these individual with the necessary legal cover to assist the committee with its inquiry. Each of these
and many other prospective solutions can be employed at the committeeand many other prospective solutions can be employed at the committee
Classified Material
How Are Materials Classified?
The standards for classifying and declassifying information are contained in Executive Order The standards for classifying and declassifying information are contained in Executive Order
13526.13526.
officials designated by the President may classify information upon a determination that its officials designated by the President may classify information upon a determination that its
unauthorized disclosure could reasonably be expected to damage national security.unauthorized disclosure could reasonably be expected to damage national security.
information must be owned by, produced by, or under the control of the federal government and information must be owned by, produced by, or under the control of the federal government and
disclosure could reasonably be expected to cause to national security.disclosure could reasonably be expected to cause to national security.
danger potentially presented by the informationdanger potentially presented by the information
classifies the information establishes a date for declassification based upon the expected duration classifies the information establishes a date for declassification based upon the expected duration
of the informationof the information
information must be marked for declassification after 10 or 25 years, depending on the sensitivity information must be marked for declassification after 10 or 25 years, depending on the sensitivity
of the information.of the information.
security still exists.security still exists.
421 Who Can Access Classified Materials?
Access to classified information is generally limited to those who:Access to classified information is generally limited to those who:
requires access to specific classified information in order to perform or assist requires access to specific classified information in order to perform or assist
in a lawful and authorized governmental function.in a lawful and authorized governmental function.
without permission.without permission.
distribution of classified information.distribution of classified information.
committees of jurisdiction. committees of jurisdiction.
receive security clearances as such, but are instead presumed to be trustworthy,receive security clearances as such, but are instead presumed to be trustworthy,
the first requirement to access classified materials.the first requirement to access classified materials.
constitutional duties and responsibilities of his or her office. The executive branch may disagree constitutional duties and responsibilities of his or her office. The executive branch may disagree
with this interpretation and has previously stated that it retains the final authority to determine if a with this interpretation and has previously stated that it retains the final authority to determine if a
Member has a need to know.Member has a need to know.
employees do not automatically have access to classified information and, therefore, must go employees do not automatically have access to classified information and, therefore, must go
through the necessary security clearance process prior to being permitted to review such through the necessary security clearance process prior to being permitted to review such
information.information.
of any other law restricting congressional access to classified material,of any other law restricting congressional access to classified material,
Notwithstanding classification itself, practical and political concerns with respect to controlled Notwithstanding classification itself, practical and political concerns with respect to controlled
access, secure storage, and public disclosure may provide persuasive rationales for withholding or access, secure storage, and public disclosure may provide persuasive rationales for withholding or
limiting congressional access. Committees and subcommittees have wide discretion to negotiate limiting congressional access. Committees and subcommittees have wide discretion to negotiate
with a presidential Administration regarding these issues. For example, an investigating with a presidential Administration regarding these issues. For example, an investigating
committee or subcommittee could choose to review documents at an executive branch secure committee or subcommittee could choose to review documents at an executive branch secure
facility; permit redactions of certain information; limit the ability of Members or staff to review facility; permit redactions of certain information; limit the ability of Members or staff to review
certain material; or opt to hold nonpublic meetings, briefings, and hearings where classified certain material; or opt to hold nonpublic meetings, briefings, and hearings where classified
information will be discussed. None of these measures is legally required, but all are within the information will be discussed. None of these measures is legally required, but all are within the
investigating entityinvestigating entity
during the investigation.during the investigation.
Controlled Unclassified Information
Committees conducting investigations and oversight of executive branch agencies may require Committees conducting investigations and oversight of executive branch agencies may require
access to information and documents that are access to information and documents that are
classified. This general category of classified. This general category of
access issues for congressional committees. The fact that information is CUI does not alone access issues for congressional committees. The fact that information is CUI does not alone
provide a basis for withholding it from duly authorized jurisdictional committees of Congress.provide a basis for withholding it from duly authorized jurisdictional committees of Congress.
430 However, there may be political and policy reasons why an agencyHowever, there may be political and policy reasons why an agency
as CUI should be afforded due deference.as CUI should be afforded due deference.
others are creations of the agency that authored or is holding the requested information. All such others are creations of the agency that authored or is holding the requested information. All such
executive order does not supersede statutorily created protections.executive order does not supersede statutorily created protections.
Transportation Security Administration (TSA). The statute requires the TSA director to Transportation Security Administration (TSA). The statute requires the TSA director to
regulations prohibiting the disclosure of information obtained or developed in carrying out regulations prohibiting the disclosure of information obtained or developed in carrying out
security security
invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or
financial information; or (C) be detrimental to the security of transportation.financial information; or (C) be detrimental to the security of transportation.
the public the public
authorized to have the information.authorized to have the information.
defining defining sensitive security information (SSI)—defined generally as (SSI)—defined generally as
developed in the conduct of security activitiesdeveloped in the conduct of security activities
the SSI regulations appear to insulate congressional committees and their staffs from any the SSI regulations appear to insulate congressional committees and their staffs from any
sanctions or penalty from the receipt and disclosure of SSI. The definition of sanctions or penalty from the receipt and disclosure of SSI. The definition of covered persons——
those subject to the SSI regulations—does not appear to include Members of Congress, those subject to the SSI regulations—does not appear to include Members of Congress,
committees, or congressional staff.committees, or congressional staff.
the statute, that the statute, that
committee of Congress authorized to have the information.committee of Congress authorized to have the information.
regulation440
enter into written agreements or arrangements when disseminating CUI outside the executive enter into written agreements or arrangements when disseminating CUI outside the executive
branch.branch.
442 Individual Member Authority to Conduct Oversight and
Investigations Individual members of a legislative body may conduct investigatory oversight on their own Individual members of a legislative body may conduct investigatory oversight on their own
committee investigations, including the power to issue subpoenas.committee investigations, including the power to issue subpoenas.
engage in engage in
Senate rules emphasize the rights and prerogatives of individual Senators and, therefore, minority Senate rules emphasize the rights and prerogatives of individual Senators and, therefore, minority
groups of Senators.groups of Senators.
debate on a bill or amendment unless a supermajority votes to invoke cloture.debate on a bill or amendment unless a supermajority votes to invoke cloture.
their right to filibuster, or their right to filibuster, or
reaching a vote on legislative business. Other Senate rules can also directly or indirectly aid the reaching a vote on legislative business. Other Senate rules can also directly or indirectly aid the
minority in gaining investigatory rights. For example, the right of extended debate also applies in minority in gaining investigatory rights. For example, the right of extended debate also applies in
committeecommittee, and, unlike on the floor, the cloture rule may not be invoked in committee. Each and, unlike on the floor, the cloture rule may not be invoked in committee. Each
Senate committee decides for itself how it will control debate, and therefore a Member may have Senate committee decides for itself how it will control debate, and therefore a Member may have
opportunities to threaten or cause delay in committee. Also, Senate Rule XXVI prohibits the opportunities to threaten or cause delay in committee. Also, Senate Rule XXVI prohibits the
reporting of any measure or matter from a committee unless a majority of the committee is reporting of any measure or matter from a committee unless a majority of the committee is
present, another point of possible tactical leverage. Even beyond the potent power to delay, present, another point of possible tactical leverage. Even beyond the potent power to delay,
Senators can promote their goals by taking advantage of other parliamentary rights and Senators can promote their goals by taking advantage of other parliamentary rights and
opportunities that are provided by the Senateopportunities that are provided by the Senate
as are afforded by the processes dealing with floor recognition and the amending process.as are afforded by the processes dealing with floor recognition and the amending process.
The Seven Member Statute: 5 U.S.C. § 2954 Another potential tool for minority or small group participation in oversight is Another potential tool for minority or small group participation in oversight is provided under 5 U.S.C. § 2954.446
Oversight and Oversight and Government Reform Committee or five members of the Senate Committee on Homeland Reform Committee or five members of the Senate Committee on Homeland
Security and Governmental AffairsSecurity and Governmental Affairs447 can request information from executive agencies on matters can request information from executive agencies on matters
within their committee jurisdictions, which the agencies within their committee jurisdictions, which the agencies
confers a right of access upon this group of Members, it is not clear whether the Members—in the confers a right of access upon this group of Members, it is not clear whether the Members—in the
case of an agency refusal—can enforce their request in the courts. case of an agency refusal—can enforce their request in the courts.
Oversight at times occurs through specialized, temporary investigations of a specific event or Oversight at times occurs through specialized, temporary investigations of a specific event or
development. These can be dramatic, high-profile endeavors focusing on scandals, alleged abuses development. These can be dramatic, high-profile endeavors focusing on scandals, alleged abuses
of authority, suspected illegal conduct, or other unethical behavior. The stakes are high, possibly of authority, suspected illegal conduct, or other unethical behavior. The stakes are high, possibly
even leading to the end of individual careers of high-ranking executive officials. Congressional even leading to the end of individual careers of high-ranking executive officials. Congressional
investigations can induce resignations, firings, and impeachment proceedings and question major investigations can induce resignations, firings, and impeachment proceedings and question major
policy actions of the President, as occurred in the Senate Watergate Committee investigation into policy actions of the President, as occurred in the Senate Watergate Committee investigation into
the Nixon Administration in the early 1970s, the Church and Pike select committeesthe Nixon Administration in the early 1970s, the Church and Pike select committees
the mid-1970s into intelligence agency abusesthe mid-1970s into intelligence agency abuses
Reagan Administration, Reagan Administration,
Clinton Administration, the joint intelligence committee investigation into the September 11 Clinton Administration, the joint intelligence committee investigation into the September 11
attacks, the Hurricane Katrina probe in 2005 during the George W. Bush Administration, the attacks, the Hurricane Katrina probe in 2005 during the George W. Bush Administration, the
Benghazi panel established in 2014 and again in 2015 during the Obama Administration, Benghazi panel established in 2014 and again in 2015 during the Obama Administration,
investigations into Russian interference in the 2016 presidential election during the investigations into Russian interference in the 2016 presidential election during the first Trump Trump
Administration, Administration,
Building on January 6, 2021Building on January 6, 2021, and the task force that investigated the attempted assassination of Donald Trump in July 2024. On these investigations and others, interest in Congress, the . On these investigations and others, interest in Congress, the
executive, and the public is frequently intense and impassioned.executive, and the public is frequently intense and impassioned.
Prominent Select Investigative Committees
Senate Watergate Committee (1973-74)
others, in the presidential election of 1972, or any campaign, canvass, or other activity related to it.others, in the presidential election of 1972, or any campaign, canvass, or other activity related to it.
" House Select Committee on the Iran-Contra Affair (1987)
make such findings and recommendations to the House as the select committee deems appropriate, regarding the make such findings and recommendations to the House as the select committee deems appropriate, regarding the
sale or transfer of arms, technology, or intelligence to Iran or Iraq; the diversion of funds realized in connection sale or transfer of arms, technology, or intelligence to Iran or Iraq; the diversion of funds realized in connection
with such sales and otherwise, to the anti-government forces in Nicaragua; the violation of any law, agreement, with such sales and otherwise, to the anti-government forces in Nicaragua; the violation of any law, agreement,
promise, or understanding regarding the reporting to and informing of Congress; operational activities and the promise, or understanding regarding the reporting to and informing of Congress; operational activities and the
conduct of foreign and national security policy by the staff of the National Security Council; authorization and conduct of foreign and national security policy by the staff of the National Security Council; authorization and
supervision or lack thereof of such matters by the President and other White House personnel; the role of supervision or lack thereof of such matters by the President and other White House personnel; the role of
White House, White House,
matters on public and international confidence in the United States Government.matters on public and international confidence in the United States Government.
significantly, the investigations themselves tend to share some common attributes, including these significantly, the investigations themselves tend to share some common attributes, including these
five:five:
subcommitteessubcommittees, as well as temporary select committees, specially created subcommittees, , specially created subcommittees,
panel would have to be reauthorized for the inquiry to continue).panel would have to be reauthorized for the inquiry to continue).
added workload and need for specialized expertise in conducting such added workload and need for specialized expertise in conducting such
investigations and in the subject matter involved. Such staff can be hired under investigations and in the subject matter involved. Such staff can be hired under
contract from the private sector, transferred from existing congressional offices contract from the private sector, transferred from existing congressional offices
or committees, transferred from the congressional support agencies, or loaned or committees, transferred from the congressional support agencies, or loaned
appropriate security clearances if the inquiry looked into matters of national appropriate security clearances if the inquiry looked into matters of national
security.security.
commonly provided authority, but given the particular circumstances, special commonly provided authority, but given the particular circumstances, special
panels have also been vested with the authority to obtain tax information, seek panels have also been vested with the authority to obtain tax information, seek
international assistance in information-gathering efforts abroad, and participate in international assistance in information-gathering efforts abroad, and participate in
judicial proceedings related to the investigation (for instance, to enforce a judicial proceedings related to the investigation (for instance, to enforce a
committee-issued subpoena). The specific authorities granted to some of the most committee-issued subpoena). The specific authorities granted to some of the most
prominent investigations undertaken in recent decades are displayed prominent investigations undertaken in recent decades are displayed
Table 1. Special Investigative Authorities Explicitly Provided to Selected
Investigation
Authorizing Resolution(s)
Staff Deposition Authority
Senate Watergate Investigation
(1973)(1973)
S.
S. Res. 327, 93rd Cong. (1974)
Yes
Yes
No
Yes
Yes
Yes
No
No
S. Res. 21, 94th Cong. (1975)
S. Res. 377Yes
Yes
No
No
H.R. Res.1540, 94th Cong. (1976)
H.R. Res. 222(1977)(1977)
H.R. Res.433, 95th Cong. (1977)
Yes
Yes
No
Yes
Koreagate
H.R. Res. 252, 95th Cong. (1977)
No
Yes
No
Yes
Billy Carter Investigation
consent agreement); consent agreement);
S.S. Res. 495, 96th Cong. Res. 495, 96th Cong.
(1980)(1980)
S.
Yes
No
Yes
No
H.R. Res. 67, 97th Cong. (1981)
No
Yes
No
Yes
(1982)(1982)
S. Res. 517, 97th Cong. (1982)
Yes
No
No
No
Iran-Contra Affair (House)
H.R. Res. 12, 100th Cong. (1987)
Yes
Yes
Yes
Yes
Iran-Contra Affair (Senate)
S. Res. 23, 100th Cong. (1987)
S.Yes
Yes
No
Yes
Judge Hastings Impeachment
Yes
No
No
No
Judge Nixon Impeachment
Yes
No
No
No
H.R. Res. 258, 102nd Cong. (1992)
Yes
Yes
No
Yes
Yes
Yes
Yes
Yes
H.R. Res. 369, 104th Cong. (1996)
Yes
No
No
No
Yes
Yes
No
No
Yes
No
No
No
Concerns
with China
H.R. Res. 463, 105th Cong. (1998)
Yes
Yes
Yes
Yes
H.R. Res. 507, 105th Cong. (1998)
Yes
No
No
No
2012 Terrorist Attack in Benghazi
H.R. Res. 567, 113th Cong. (2014)
H.R. Res. 5, 114th Cong. (2015)
Yes
No
No
No
President Trump Impeachment
Yes
No
No
No
Attack on the U.S. Capitol
H.R. Res. 503, 117th Cong. (2021)
Yes
No
No
No
Source: CRS, based on the authorities listed above.
Note: More comprehensive compilations of authorities and rules of Senate and House special investigatory More comprehensive compilations of authorities and rules of Senate and House special investigatorycommittees can be found in committees can be found in
Investigatory Committees and Other Senate Entities, 1973-97, S., 1973-97, S. Doc. 105-16 (1st Sess.1998); and Staff of Subcomm. on the Legis. Process, H. Comm. on Rules, 98th Cong.,
of Select Committees
(Subcomm. Print 1983). Select Oversight Tools and Techniques Some oversight techniques—such as conducting hearings with agency officials, receiving reports Some oversight techniques—such as conducting hearings with agency officials, receiving reports
on agency activities and performance, and scrutinizing budget requests—are relatively on agency activities and performance, and scrutinizing budget requests—are relatively
straightforward. There are several techniques for which explanation or elaboration may prove straightforward. There are several techniques for which explanation or elaboration may prove
helpful for a better understanding of their utility.helpful for a better understanding of their utility.
and staff on the organization, operations, and programs of an agency and determining how an and staff on the organization, operations, and programs of an agency and determining how an
agency intends to implement any newly enacted legislation. Hearings can also be used as a way to agency intends to implement any newly enacted legislation. Hearings can also be used as a way to
obtain information on the administration, effectiveness, and economy of agency operations and obtain information on the administration, effectiveness, and economy of agency operations and
called before called before
Such hearings benefit the committee by, for example:Such hearings benefit the committee by, for example:
ask penetrating questions ask penetrating questions
evaluated relevant data, information, and analyses about administrative performance.evaluated relevant data, information, and analyses about administrative performance.
Reorganization Act of 1946 is to encourage committees to take an active and ongoing role in Reorganization Act of 1946 is to encourage committees to take an active and ongoing role in
administrative review and not wait for public revelations of agency and program inadequacies administrative review and not wait for public revelations of agency and program inadequacies
before conducting oversight. As Section 136 states in part: before conducting oversight. As Section 136 states in part:
Senate and House of Representatives shall exercise continuous watchfulness of the execution by Senate and House of Representatives shall exercise continuous watchfulness of the execution by
the administrative agencies concerned of any laws, the subject matter of which is within the the administrative agencies concerned of any laws, the subject matter of which is within the
jurisdiction of such committee.jurisdiction of such committee.
record their pertinent findings routinely. Information compiled in this fashion record their pertinent findings routinely. Information compiled in this fashion
is useful for both routine oversight hearings and oversight hearings that may be called unexpectedly, useful for both routine oversight hearings and oversight hearings that may be called unexpectedly,
perhaps following a public outcry on a particular issue in which the opportunity to conduct an perhaps following a public outcry on a particular issue in which the opportunity to conduct an
extensive background study is limited.extensive background study is limited.
a hearing so that witnesses will be on notice regarding the kinds of questions the committee wants a hearing so that witnesses will be on notice regarding the kinds of questions the committee wants
answered. This allows witnesses to be more responsive to the committeeanswered. This allows witnesses to be more responsive to the committee
limit their ability to provide limit their ability to provide
answers. Casework
Casework is a congressional activity that typically occurs in MembersCasework is a congressional activity that typically occurs in Members
includes the response or services provided to constituents who request assistance on a wide includes the response or services provided to constituents who request assistance on a wide
variety of matters. These could include problems with various federal agencies and departments variety of matters. These could include problems with various federal agencies and departments
that could signal a need for further oversight. Casework inquiries can be simple and include that could signal a need for further oversight. Casework inquiries can be simple and include
requests for assistance in applying for Social Security, veteransrequests for assistance in applying for Social Security, veterans
More complex inquiries might involve tracking misdirected benefits payments or efforts to More complex inquiries might involve tracking misdirected benefits payments or efforts to
obtain, or seek relief from, a federal administrative decision.obtain, or seek relief from, a federal administrative decision.
provide important insights into executive agency activities. Together, constituent inquiries and provide important insights into executive agency activities. Together, constituent inquiries and
agency responses may afford Members an early warning about whether an agency or program is agency responses may afford Members an early warning about whether an agency or program is
functioning as Congress intended and which programs or policies might warrant additional functioning as Congress intended and which programs or policies might warrant additional
institutional oversight or further legislative consideration.institutional oversight or further legislative consideration.
454 Performance Audits by Inspectors General and GAO
Performance auditing of executive departments Performance auditing of executive departments
oversight entities) hold executive officers accountable for their use of public funds with a primary oversight entities) hold executive officers accountable for their use of public funds with a primary
aim to facilitate improvement of various government programs and operations.aim to facilitate improvement of various government programs and operations.
GAO, performance audits aim to accomplish four key objectives:GAO, performance audits aim to accomplish four key objectives:
objectives, as well as whether resources are being used efficiently, objectives, as well as whether resources are being used efficiently,
effectively, and economically to achieve program results.effectively, and economically to achieve program results.
effective operations, reliability of reporting, and compliance with applicable effective operations, reliability of reporting, and compliance with applicable
laws and regulations.laws and regulations.
requirements.requirements.
or internal auditors (e.g., agency audit teams or agency-hired consultants). Internal auditors often or internal auditors (e.g., agency audit teams or agency-hired consultants). Internal auditors often
work under the direction of their affiliated agencies, and their reports may be designed to meet work under the direction of their affiliated agencies, and their reports may be designed to meet
programs and operations, such as the following:programs and operations, such as the following:
component parts of the program consistent with overall program objectives?component parts of the program consistent with overall program objectives?
economically?economically?
effectively?effectively?
trends?trends?
problems and weaknesses, and problems and weaknesses, and
The The Federal Register, available at https://www.federalregister.gov/, is published Monday through , available at https://www.federalregister.gov/, is published Monday through
Friday (except official holidays) by the Office of the Federal Register in the National Archives Friday (except official holidays) by the Office of the Federal Register in the National Archives
and Records Administration. It provides a uniform system for making available to the public and Records Administration. It provides a uniform system for making available to the public
regulations and legal notices issued by federal agencies and the President. These include regulations and legal notices issued by federal agencies and the President. These include
presidential proclamations and executive orders, federal agency documents having general presidential proclamations and executive orders, federal agency documents having general
applicability and legal effect, documents required to be published by acts of Congress, and other applicability and legal effect, documents required to be published by acts of Congress, and other
federal agency documents of public interest. Final regulations are codified by subject in the federal agency documents of public interest. Final regulations are codified by subject in the Code
of Federal Regulations..
least one day before they are published unless the issuing agency requests earlier filing. The list least one day before they are published unless the issuing agency requests earlier filing. The list
of documents on file for public inspection can be accessed at https://www.federalregister.gov/of documents on file for public inspection can be accessed at https://www.federalregister.gov/
them to identify proposed them to identify proposed
. Monitoring the Unified Agenda
The Unified Agenda of Federal Regulatory and Deregulatory Actions is a government-wide The Unified Agenda of Federal Regulatory and Deregulatory Actions is a government-wide
publication of rulemaking actions that agencies expect to take in the coming six to 12 months. publication of rulemaking actions that agencies expect to take in the coming six to 12 months.
The Unified Agenda, which is generally published twice each year, lists upcoming regulatory The Unified Agenda, which is generally published twice each year, lists upcoming regulatory
actions (i.e., new proposed and final regulations) and deregulatory actions (i.e., reductions in or actions (i.e., new proposed and final regulations) and deregulatory actions (i.e., reductions in or
elimination of current regulations). The Unified Agenda provides Congress transparency into elimination of current regulations). The Unified Agenda provides Congress transparency into
federal agenciesfederal agencies
most regulatory activities are not made public until they are published in the most regulatory activities are not made public until they are published in the Federal Register. .
The Unified Agenda is available on the website The Unified Agenda is available on the website
General Services AdministrationGeneral Services Administration
Unified Agenda, Reginfo.gov also has information about Office of Management and Budget Unified Agenda, Reginfo.gov also has information about Office of Management and Budget
(OMB) review of regulations under Executive Order 12866 and information collection requests (OMB) review of regulations under Executive Order 12866 and information collection requests
under the Paperwork Reduction Act.under the Paperwork Reduction Act.
459 Special Studies and Investigations by Staff, Support Agencies, and
legislative process. Committee staffs, through field investigations or on-site visits, for example, legislative process. Committee staffs, through field investigations or on-site visits, for example,
can help a committee develop its own independent evaluation of the effectiveness of laws.can help a committee develop its own independent evaluation of the effectiveness of laws.
Support
agency most involved in investigations, audits, and program evaluations. It has a large, agency most involved in investigations, audits, and program evaluations. It has a large,
professional investigative staff and produces numerous reports professional investigative staff and produces numerous reports that are useful in oversight.useful in oversight.
Outside
authorized House and Senate committees to contract with individual consultants or organizations authorized House and Senate committees to contract with individual consultants or organizations
to assist them in their work. Committees may also use federal employees detailed from executive to assist them in their work. Committees may also use federal employees detailed from executive
or legislative branch agencies.or legislative branch agencies.
limitations and approvals established in House and Senate rules, guidelines established by the limitations and approvals established in House and Senate rules, guidelines established by the
Committee on House Administration or the Senate Committee on Rules and Administration, and Committee on House Administration or the Senate Committee on Rules and Administration, and
rules of individual committees.rules of individual committees.
462 Investigative
conduct studies or to investigate conduct studies or to investigate
and the President) that contain the and the President) that contain the
463 The 9/11 Commission
as the as the "9/11 Commission9/11 Commission") in November 2002 (P.L. 107-306; 6 U.S.C. §101 note) to ) in November 2002 (P.L. 107-306; 6 U.S.C. §101 note) to
facts and causes relating to the terrorist attacks of September 11, 2001.facts and causes relating to the terrorist attacks of September 11, 2001.
August 2004, conducted an extensive and widely watched investigation, including a dozen public hearings, that August 2004, conducted an extensive and widely watched investigation, including a dozen public hearings, that
culminated in the publication of culminated in the publication of
light a variety of information about how the attack was planned and perpetrated, identified factors that kept the light a variety of information about how the attack was planned and perpetrated, identified factors that kept the
government from stopping the attack, and made recommendations intended to prevent future successful attacks.government from stopping the attack, and made recommendations intended to prevent future successful attacks.
In addition to providing what many consider to be a definitive report on the attacks, the 9/11 Commission also In addition to providing what many consider to be a definitive report on the attacks, the 9/11 Commission also
made recommendations that became the basis for the Implementing Recommendations of the 9/11 Commission made recommendations that became the basis for the Implementing Recommendations of the 9/11 Commission
Act of 2007 (P.L. 110-53Act of 2007 (P.L. 110-53).
including the reports, hearing materials, and other informationincluding the reports, hearing materials, and other information, at https://www.9-11commission.gov/. at https://www.9-11commission.gov/.
Communicating with the Media
Public awareness of a problem can contribute to oversight. Public and media attention to an issue Public awareness of a problem can contribute to oversight. Public and media attention to an issue
may be considered a separate form of oversight or a complement to other oversight techniques.may be considered a separate form of oversight or a complement to other oversight techniques.
press conferences and with the broadcasting of official proceedings. Additionally, nearly all press conferences and with the broadcasting of official proceedings. Additionally, nearly all
Members maintain one or more social media accounts and use their institutional websites to help Members maintain one or more social media accounts and use their institutional websites to help
communicate with constituents and publicize issues.communicate with constituents and publicize issues.
464 Press Gallery Offices
Congress. The press galleries can assist Members or staff with the distribution of press releases, Congress. The press galleries can assist Members or staff with the distribution of press releases,
facilitate Member communications with journalists, and help arrange location reservations or facilitate Member communications with journalists, and help arrange location reservations or
other logistics for press conferences or interviews.other logistics for press conferences or interviews.
radio/TV press. A single office, serving both chambers, exists for the press photographersradio/TV press. A single office, serving both chambers, exists for the press photographers
The websites for each gallery are provided The websites for each gallery are provided
Table 2. Press Gallery Names and Websites
Gallery Name
Website
House Radio and Television Gallery
http://radiotv.house.gov
Senate Radio and Television Gallery
https://www.radiotv.senate.gov
House Periodical Press Gallery
https://periodical.house.gov
Senate Periodical Press Gallery
http://www.periodicalpress.senate.gov
Source: U.S. Congress, Joint Committee on Printing, Official Congressional Directory, 117th Congress.
The House of Representatives can call upon the executive branch for factual information through The House of Representatives can call upon the executive branch for factual information through
resolutions of inquiry (House Rule XIII, clause 7).resolutions of inquiry (House Rule XIII, clause 7).
approved by only the House. Resolutions of inquiry are addressed to either the President or heads approved by only the House. Resolutions of inquiry are addressed to either the President or heads
of Cabinet-level agencies to supply specific factual information to the chamber. The resolutions of Cabinet-level agencies to supply specific factual information to the chamber. The resolutions
usually usually
calling upon the President for information, especially about foreign affairs, the House often adds calling upon the President for information, especially about foreign affairs, the House often adds
the qualifying languagethe qualifying language
not impose a legally enforceable duty to respond on executive branch officials.not impose a legally enforceable duty to respond on executive branch officials.
These devices are These devices are not to request an opinion or require an investigation (see box below). to request an opinion or require an investigation (see box below).
Resolutions of inquiry can trigger other congressional methods of obtaining information, such as Resolutions of inquiry can trigger other congressional methods of obtaining information, such as
through supplemental hearings or the regular legislative process.through supplemental hearings or the regular legislative process.
Resolutions of Inquiry in Practice
The first resolution of inquiry was approved on March 24, 1796, when the House sought documents in was approved on March 24, 1796, when the House sought documents in
connection with the Jay Treaty negotiations:connection with the Jay Treaty negotiations:
Resolved, That the President of the United States be requested to lay before this House a copy , That the President of the United States be requested to lay before this House a copy
of the instructions to the minister of the United States, who negotiated the treaty with the of the instructions to the minister of the United States, who negotiated the treaty with the
King of Great Britain … together with the correspondence and other documents relative to King of Great Britain … together with the correspondence and other documents relative to
the said treaty; excepting such of the said papers as any existing negotiation may render the said treaty; excepting such of the said papers as any existing negotiation may render
improper to be deliveredimproper to be delivered
.468 A more
Administration plan to use up to $20 Administration plan to use up to $20
Mexican currency and financial system. The resolution read: Mexican currency and financial system. The resolution read:
provide the House of Representatives (consistent with the rules of the House), not later than 14 days after the provide the House of Representatives (consistent with the rules of the House), not later than 14 days after the
adoption of this resolution, the adoption of this resolution, the
with the public interest.with the public interest.
condition of the Mexican economy, consultations between the government of Mexico on the one hand and the condition of the Mexican economy, consultations between the government of Mexico on the one hand and the
U.S. Secretary of the Treasury and/or the International Monetary Fund on the other, market policies and tax U.S. Secretary of the Treasury and/or the International Monetary Fund on the other, market policies and tax
policies of the Mexican government, and repayment agreements between Mexico and the United States, among policies of the Mexican government, and repayment agreements between Mexico and the United States, among
after its introduction, any Representative can move to discharge the after its introduction, any Representative can move to discharge the
resolution to the floor for consideration. Action by the committees to report the resolution within resolution to the floor for consideration. Action by the committees to report the resolution within
the 14 days, however, effectively sidetracks House floor action on the resolution. For this reason, the 14 days, however, effectively sidetracks House floor action on the resolution. For this reason,
House committees virtually always mark up and report resolutions of inquiry referred to them, House committees virtually always mark up and report resolutions of inquiry referred to them,
even when they do not support the goals of the legislation. By reporting the resolution within the even when they do not support the goals of the legislation. By reporting the resolution within the
specified 14-day window, a committee of referral retains control over the measure and prevents specified 14-day window, a committee of referral retains control over the measure and prevents
supporters of the resolution from going to the floor and making the privileged motion to supporters of the resolution from going to the floor and making the privileged motion to
discharge.discharge.
Limitations and Riders on Appropriations
Congress generally uses a two-step legislative procedure: authorization of programs in bills Congress generally uses a two-step legislative procedure: authorization of programs in bills
reported by legislative committees followed by the funding of those programs in bills reported by reported by legislative committees followed by the funding of those programs in bills reported by
the Committees on Appropriations. Congressional rules generally encourage these two steps to be the Committees on Appropriations. Congressional rules generally encourage these two steps to be
distinct and sequential. General appropriations bills should not contain authorizations, nor should authorization measures contain appropriations. However, there are various exceptions, one of which is permitting "limitations" in an appropriations bill. So-called riders (language extraneous to the subject of the bill) are also sometimes added to control agency (language extraneous to the subject of the bill) are also sometimes added to control agency
actions.actions.
Limitations
Although House rules forbid Although House rules forbid
appropriate for a purpose authorized by law, so it may by limitation prohibit the use of the money appropriate for a purpose authorized by law, so it may by limitation prohibit the use of the money
for part of the purpose while appropriating for the remainder of it.for part of the purpose while appropriating for the remainder of it.
spending and to reduce expenditures that Congress believes to be unnecessary or undesirable. spending and to reduce expenditures that Congress believes to be unnecessary or undesirable.
Under House Rule XXI, no provision changing existing law can be reported in any general Under House Rule XXI, no provision changing existing law can be reported in any general
appropriation bill appropriation bill
amounts of money covered by the billamounts of money covered by the bill
practice).practice).
An Appropriations Limitation
The Hyde Amendment: Consolidated Appropriations Act, 2020, P.L. 116-93P.L. 116-93, 133 Stat. 2412, Title II,
§202 (2019):
the life of the mother would be endangered if the fetus were carried to term, or in the case of rape or incest: the life of the mother would be endangered if the fetus were carried to term, or in the case of rape or incest:
Provided, That should this prohibition be declared unconstitutional by a court of competent jurisdiction, this Provided, That should this prohibition be declared unconstitutional by a court of competent jurisdiction, this
section shall be section shall be
bills. The rule was changed again in 1995 by granting the majority leader a central role in bills. The rule was changed again in 1995 by granting the majority leader a central role in
determining consideration of limitation amendments. The procedures for limitation in the House determining consideration of limitation amendments. The procedures for limitation in the House
are set forth in the are set forth in the House Manual, Sections 1044(b) and 1053-1062., Sections 1044(b) and 1053-1062.
Riders
Unlike limitations, legislative Unlike limitations, legislativethey are added. Riders appear in both authorization bills and appropriations bills. In the latter they are added. Riders appear in both authorization bills and appropriations bills. In the latter
case, such provisions would be subject to a point of order in the House on the grounds that they case, such provisions would be subject to a point of order in the House on the grounds that they
are attempts to place legislation in an appropriations bill, although in almost every case, the are attempts to place legislation in an appropriations bill, although in almost every case, the
procedure used to consider the legislation may restrict Membersprocedure used to consider the legislation may restrict Members
In the Senate, Rule XVI prohibits the addition to general appropriations bills of amendments that In the Senate, Rule XVI prohibits the addition to general appropriations bills of amendments that
are legislative or non-germane. Both chambers have procedures to waive these prohibitions.are legislative or non-germane. Both chambers have procedures to waive these prohibitions.
Department of Homeland Security Appropriations Act, 2007, P.L. 109-295 §550, 120 Stat. 1388
(2006):
shall issue interim final regulations establishing risk-based performance standards for security of chemical facilities shall issue interim final regulations establishing risk-based performance standards for security of chemical facilities
and requiring vulnerability assessments and the development and implementation of site security plans for and requiring vulnerability assessments and the development and implementation of site security plans for
chemical facilities: Provided, That such regulations shall apply to chemical facilities that, in the discretion of the chemical facilities: Provided, That such regulations shall apply to chemical facilities that, in the discretion of the
Secretary, present high levels of security risk: Provided further, That such regulations shall permit each such Secretary, present high levels of security risk: Provided further, That such regulations shall permit each such
facility, in developing and implementing site security plans, to select layered security measures that, in facility, in developing and implementing site security plans, to select layered security measures that, in
combination, appropriately address the vulnerability assessment and the risk-based performance standards for combination, appropriately address the vulnerability assessment and the risk-based performance standards for
security for the facility: Provided further, That the Secretary may not disapprove a site security plan submitted security for the facility: Provided further, That the Secretary may not disapprove a site security plan submitted
under this section based on the presence or absence of a particular security measure, but the Secretary may under this section based on the presence or absence of a particular security measure, but the Secretary may
disapprove a site security plan if the plan fails to satisfy the risk-based performance standards established by this disapprove a site security plan if the plan fails to satisfy the risk-based performance standards established by this
section: Provided further, That the Secretary may approve alternative security programs established by private section: Provided further, That the Secretary may approve alternative security programs established by private
sector entities, Federal, State, or local authorities, or other applicable laws if the Secretary determines that the sector entities, Federal, State, or local authorities, or other applicable laws if the Secretary determines that the
requirements of such programs meet the requirements of this section and the interim regulations: Provided requirements of such programs meet the requirements of this section and the interim regulations: Provided
further, That the Secretary shall review and approve each vulnerability assessment and site security plan required further, That the Secretary shall review and approve each vulnerability assessment and site security plan required
under this section: Provided further, That the Secretary shall not apply regulations issued pursuant to this section under this section: Provided further, That the Secretary shall not apply regulations issued pursuant to this section
to facilities regulated pursuant to the Maritime Transportation Security Act of 2002, P.L. 107-295, as amended; to facilities regulated pursuant to the Maritime Transportation Security Act of 2002, P.L. 107-295, as amended;
Public Water Systems, as defined by section 1401 of the Safe Drinking Water Act, P.L. 93-523, as amended; Public Water Systems, as defined by section 1401 of the Safe Drinking Water Act, P.L. 93-523, as amended;
Treatment Works as defined in section 212 of the Federal Water Treatment Works as defined in section 212 of the Federal Water
amended; any facility owned or operated by the Department of Defense or the Department of Energy, or any amended; any facility owned or operated by the Department of Defense or the Department of Energy, or any
facility subject to regulation by the Nuclear Regulatory Commission.facility subject to regulation by the Nuclear Regulatory Commission.
" Legislative Veto and Advance Notice
Many acts of Congress have delegated authority to the executive branch on the condition that Many acts of Congress have delegated authority to the executive branch on the condition that
proposed executive actions be submitted to Congress for review and possible disapproval before proposed executive actions be submitted to Congress for review and possible disapproval before
they can be put into effect. This way of ensuring continuing oversight of policy areas follows two they can be put into effect. This way of ensuring continuing oversight of policy areas follows two
paths: the legislative veto and advance notification.paths: the legislative veto and advance notification.
Legislative Veto
Beginning in 1932,Beginning in 1932,
that proposed executive actions would be first submitted to Congress and subjected to disapproval that proposed executive actions would be first submitted to Congress and subjected to disapproval
by a committee, a single house, or both houses. Over the years, other types of legislative veto by a committee, a single house, or both houses. Over the years, other types of legislative veto
were added, allowing Congress to control executive branch actions without having to enact a law. were added, allowing Congress to control executive branch actions without having to enact a law.
In 1983, the Supreme Court, in In 1983, the Supreme Court, in INS v. Chadha, ruled that the legislative veto was unconstitutional , ruled that the legislative veto was unconstitutional
on the grounds that all exercises of legislative power that affect the rights, duties, and relations of on the grounds that all exercises of legislative power that affect the rights, duties, and relations of
persons outside the legislative branch must satisfy the constitutional requirements of persons outside the legislative branch must satisfy the constitutional requirements of
471 Despite this ruling, Congress has continued to enact proscribed legislative vetoes, and it has also Despite this ruling, Congress has continued to enact proscribed legislative vetoes, and it has also
relied on informal arrangements to provide comparable controls.relied on informal arrangements to provide comparable controls.
472 Statutory Legislative Vetoes
vetoes to joint resolutions of approval or disapproval, thus satisfying the requirements of vetoes to joint resolutions of approval or disapproval, thus satisfying the requirements of
bicameralism and presentment. However, Congress continues to rely on legislative vetoes. Since bicameralism and presentment. However, Congress continues to rely on legislative vetoes. Since
the the Chadha decision, hundreds of legislative vetoes have been enacted into public law, usually in decision, hundreds of legislative vetoes have been enacted into public law, usually in
appropriations acts. These legislative vetoes are exercised by the Appropriations Committees. appropriations acts. These legislative vetoes are exercised by the Appropriations Committees.
Typically, funds may not be used or an executive action may not begin until the Appropriations Typically, funds may not be used or an executive action may not begin until the Appropriations
Committees have approved—or, at least, not disapproved—the planned action, often within a Committees have approved—or, at least, not disapproved—the planned action, often within a
specified time limit.specified time limit.
A Sample Statutory Legislative Veto Provision
Department of Transportation and Related Agencies Appropriations Act, 2001, 114 Stat. 1356A-2
(2000): For the appropriation account For the appropriation account
levied against any program, budget activity, subactivitylevied against any program, budget activity, subactivity, or project funded by this statute or project funded by this statute
assessments and the basis therefore are presented to the House and Senate Committees on Appropriations and assessments and the basis therefore are presented to the House and Senate Committees on Appropriations and
are approved by such Committees.are approved by such Committees.
legislative veto occurs where an executive official pledges not to proceed with an activity until legislative veto occurs where an executive official pledges not to proceed with an activity until
Congress or certain committees agree to it. An example of this appeared during the Congress or certain committees agree to it. An example of this appeared during the
101st Congress. In the Congress. In the
pledged that no funds would be obligated beyond November 30, 1989, unless affirmed by letter pledged that no funds would be obligated beyond November 30, 1989, unless affirmed by letter
from the relevant authorization and appropriations committees and the bipartisan leadership of from the relevant authorization and appropriations committees and the bipartisan leadership of
Congress.Congress.
473 While such arrangements may not be directly enforceable in light of the Chadha decision, scholar Louis Fisher has observed that Congress retains an effective veto on a variety of executive branch decisions because of the political and structural dynamics between the branches, particularly related to the appropriations power.474
Advance Notification or "Report-and-Wait"
Statutory provisions may stipulate that before a particular activity can be undertaken by the Statutory provisions may stipulate that before a particular activity can be undertaken by theexecutive branch or funds obligated, Congress must first be advised or informed, ordinarily executive branch or funds obligated, Congress must first be advised or informed, ordinarily
through a full written statement, of what is being proposed. These statutory provisions usually through a full written statement, of what is being proposed. These statutory provisions usually
provide for a period of time during which the executive branch must defer action, giving provide for a period of time during which the executive branch must defer action, giving
Congress an opportunity to pass legislation prohibiting the pending action or using political Congress an opportunity to pass legislation prohibiting the pending action or using political
pressure to cause executive officials to retract or modify the proposed action. The Supreme Court pressure to cause executive officials to retract or modify the proposed action. The Supreme Court
has upheld this type of has upheld this type of
power to examine proposed rules, laws and regulations before they become effective is well power to examine proposed rules, laws and regulations before they become effective is well
understood by Congress. It is frequently, as here, employed to make sure that the action under the understood by Congress. It is frequently, as here, employed to make sure that the action under the
delegation squares with the Congressional purpose."475 A Report-and-Wait Provision
Iran Nuclear Agreement Review Act of 2015, P.L. 114-17 P.L. 114-17 §135(b):
Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives shall, as Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives shall, as
appropriate, hold hearings and briefings and otherwise obtain information in order to appropriate, hold hearings and briefings and otherwise obtain information in order to
… and during the period for congressional review provided in paragraph (1), including any additional period as … and during the period for congressional review provided in paragraph (1), including any additional period as
applicable under the exception provided in paragraph (2), the President may not waive, suspend, reduce, provide applicable under the exception provided in paragraph (2), the President may not waive, suspend, reduce, provide
relief from, or otherwise limit the application of statutory sanctions with respect to Iran under any provision of relief from, or otherwise limit the application of statutory sanctions with respect to Iran under any provision of
law or refrain from applying any such sanctions pursuant to an agreement described in subsection (a).law or refrain from applying any such sanctions pursuant to an agreement described in subsection (a).
" Independent Counsel Another mechanism that historically supported congressional oversight were special rules for the appointment of independent counsel within the DOJ. The statutory provisions for the appointment of an independent counsel (formerly called The statutory provisions for the appointment of an independent counsel (formerly called
reauthorized on several occasions before expiring in 1999.reauthorized on several occasions before expiring in 1999.
the Attorney General that alleged a violation of any federal criminal law (other than certain the Attorney General that alleged a violation of any federal criminal law (other than certain
misdemeanors or misdemeanors or
certain high-level federal officials—including the President, Vice President, and heads of certain high-level federal officials—including the President, Vice President, and heads of
departments. In addition, the Attorney General had discretion to seek an independent counsel for departments. In addition, the Attorney General had discretion to seek an independent counsel for
any person for whom there may exist a personal, financial, or political conflict of interest for DOJ any person for whom there may exist a personal, financial, or political conflict of interest for DOJ
personnel to investigate, and the Attorney General could seek an independent counsel for any personnel to investigate, and the Attorney General could seek an independent counsel for any
Member of Congress when the Attorney General deemed it to be in the Member of Congress when the Attorney General deemed it to be in the
long as it took to complete their duties concerning the specific matter within their defined and long as it took to complete their duties concerning the specific matter within their defined and
limited jurisdictions. Once a matter was completed, the independent counsel filed a final report. limited jurisdictions. Once a matter was completed, the independent counsel filed a final report.
The Supreme Court upheld the procedures for appointing and removing the independent counsel The Supreme Court upheld the procedures for appointing and removing the independent counsel
in in Morrison v. v. Olson..
independent counsel was required to cooperate with that oversight.independent counsel was required to cooperate with that oversight.
counsel was required to report to the House of Representatives any counsel was required to report to the House of Representatives any
" information that may constitute grounds for any impeachment.information that may constitute grounds for any impeachment.
investigations conducted by Kenneth Starr into Whitewater, Monica Lewinsky, and other mattersinvestigations conducted by Kenneth Starr into Whitewater, Monica Lewinsky, and other matters
an independent counsel is to have the Attorney General invoke existing authority to appoint a an independent counsel is to have the Attorney General invoke existing authority to appoint a
special prosecutor to investigate a particular matter. Current DOJ regulations provide for the special prosecutor to investigate a particular matter. Current DOJ regulations provide for the
prosecutions of certain sensitive matters or matters that may raise a conflict for the DOJ.prosecutions of certain sensitive matters or matters that may raise a conflict for the DOJ.
special counsels would have substantially less independence than the statutory independent special counsels would have substantially less independence than the statutory independent
counselcounsel would, including removal for , including removal for
for other good cause, including violation of Department policies.for other good cause, including violation of Department policies.
For example, in May 2017, Deputy Attorney General Rod Rosenstein appointed former FBI director Robert in May 2017, Deputy Attorney General Rod Rosenstein appointed former FBI director Robert
Mueller as special counsel to investigate the Russian governmentMueller as special counsel to investigate the Russian government
election and related matters.election and related matters.
Reporting, Testimony, Notice, and Consultation
Congressional oversight of the executive branch is dependent to a large degree upon information Congressional oversight of the executive branch is dependent to a large degree upon information
supplied by agencies. Congress has developed a number of tools—including reporting and notice supplied by agencies. Congress has developed a number of tools—including reporting and notice
requirements, statutory testimony requirements, and consultation requirementsrequirements, statutory testimony requirements, and consultation requirements485—to help ensure —to help ensure
that Congress and the public are aware of executive branch activities.Congress and the public are aware of executive branch activities.
arrives on Capitol Hill in the thousands of written reports that are prepared by agencies and arrives on Capitol Hill in the thousands of written reports that are prepared by agencies and
Although reporting requirements tend to be established and modified in specific contexts, Congress has also established several more general processes related to certain categories of them. Beginning in 1822, for example, the House of Representatives has required under its rules that a periodically updated list be maintained of reports made to Congress as a whole.488 Both chambers also have processes for receiving reports that are formally submitted, which may not always include required reports that agencies make available on media such as public websites.489 In 2022, legislation was enacted to require certain types of statutorily required reports to Congress and its committees to be made available online to the public.490
Concerns about potentially unnecessary, duplicative, or wasteful reports have also prompted efforts to reexamine these requirements.491 One such initiative, in part stimulated by recommendations from the Vice President's National Performance Review and from the GAO, resulted in the Federal Reports Elimination and Sunset Act of 1995.492 In 2010, Congress established a statutory process that allows executive agencies and the President to more systematically propose the elimination or modification of certain kinds of reporting requirements.493
Reporting requirements affect executive and administrative agencies and officers, including the President, independent boards and commissions, and federally chartered corporations (as well as the judiciary). These statutory provisions vary in terms of the specificity, detail, and type of information that Congress demands be provided or posted publicly.494 Reports may be required at periodic intervals, such as Reports may be required at periodic intervals, such assemiannually or at the end of a fiscal year, or submitted only if or when a specific event, activity, semiannually or at the end of a fiscal year, or submitted only if or when a specific event, activity,
or set of conditions exists.or set of conditions exists.
or officers to:or officers to:
Examples of Reporting Requirements in Law
Early Requirement in the 1789 Treasury Department Act:
branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by
the Senate or House of Representatives, or which shall appertain to his officethe Senate or House of Representatives, or which shall appertain to his office
Reporting on support for air carriers in the Coronavirus Aid, Relief, and Economic Security Act:
Transportation and Infrastructure and the Committee on Financial Services of the House of Representatives and Transportation and Infrastructure and the Committee on Financial Services of the House of Representatives and
the Committee on Commerce, Science, and Transportation and the Committee on Banking, Housing, and Urban the Committee on Commerce, Science, and Transportation and the Committee on Banking, Housing, and Urban
Affairs of the Senate a report on the financial assistance provided to air carriers and contractors under this Affairs of the Senate a report on the financial assistance provided to air carriers and contractors under this
subtitle, including a description of any financial assistance provided.subtitle, including a description of any financial assistance provided.
(b) UPDATE.—Not later than the last day of the 1-year period (b) UPDATE.—Not later than the last day of the 1-year period
Secretary shall update and submit to the Committee on Transportation and Infrastructure and the Committee on Secretary shall update and submit to the Committee on Transportation and Infrastructure and the Committee on
Financial Services of the House of Representatives and the Committee on Commerce, Science, and Financial Services of the House of Representatives and the Committee on Commerce, Science, and
Transportation and the Committee on Banking, Housing, and Urban Affairs of the Senate the report described in Transportation and the Committee on Banking, Housing, and Urban Affairs of the Senate the report described in
subsection (a).subsection (a).
Testimony Requirements
and provide testimony before identified committees.and provide testimony before identified committees.
1976,1976,
directs agencies to consult with Congress or other stakeholders before taking certain actions. directs agencies to consult with Congress or other stakeholders before taking certain actions.
These requirements can inform Congress and the public about agenciesThese requirements can inform Congress and the public about agencies
addition, the provisions may create opportunities for Congress and nonfederal stakeholders to addition, the provisions may create opportunities for Congress and nonfederal stakeholders to
influence an agencyinfluence an agency
A Sample Prior Consultation Provision
development: development:
Houses of Congress Houses of Congress before substantially expanding the scope of authority or mandate of the Public Integrity substantially expanding the scope of authority or mandate of the Public Integrity
Section of the Criminal DivisionSection of the Criminal Division
500 Statutory Oversight Enablers
Congress has passed a number of laws designed to provide additional information to Congress Congress has passed a number of laws designed to provide additional information to Congress
(and the public) on the operations of the executive branch. These laws also add controls that may (and the public) on the operations of the executive branch. These laws also add controls that may
reduce the demands on Congressreduce the demands on Congress
professionals in the executive branch.professionals in the executive branch.
participation. Some illustrative examples are included below, along with citations to when they participation. Some illustrative examples are included below, along with citations to when they
were originally enacted.were originally enacted.
501 Direct Expansions of Congress
A number of laws directly augment and safeguard CongressA number of laws directly augment and safeguard Congress
to conduct oversight and legislative investigations. Pertinent statutes affect congressional to conduct oversight and legislative investigations. Pertinent statutes affect congressional
proceedings, such as obstruction (18 U.S.C. §1505), false statements by witnesses (18 U.S.C. proceedings, such as obstruction (18 U.S.C. §1505), false statements by witnesses (18 U.S.C.
§1001(c)(2)), and contempt procedures (2 U.S.C. §§192, 194). Some other relevant laws are §1001(c)(2)), and contempt procedures (2 U.S.C. §§192, 194). Some other relevant laws are
discussed below.discussed below.
civil service … to petition Congress, or any Member thereof, or to furnish civil service … to petition Congress, or any Member thereof, or to furnish
information to either House of Congress, or to any committee or member information to either House of Congress, or to any committee or member
thereof, shall not be denied or interfered with.thereof, shall not be denied or interfered with.
action against an employee that is in retaliation for disclosure of information action against an employee that is in retaliation for disclosure of information
that the employee believes relates to violation of law, rule, or regulation or that the employee believes relates to violation of law, rule, or regulation or
evidences gross mismanagement, waste, fraud, or abuse of authority (5 evidences gross mismanagement, waste, fraud, or abuse of authority (5
U.S.C. §2302(b)(8)). The prohibition is explicitly intended to protect U.S.C. §2302(b)(8)). The prohibition is explicitly intended to protect
disclosures to Congress: disclosures to Congress:
the withholding of information from Congress or the taking of any personnel the withholding of information from Congress or the taking of any personnel
action against an employee who discloses information to Congress.action against an employee who discloses information to Congress.
transmit urgent concerns involving classified information to inspectors transmit urgent concerns involving classified information to inspectors
general and the House and Senate Select Committees on Intelligence.general and the House and Senate Select Committees on Intelligence.
the federal government who prohibits, prevents, attempts, or threatens to the federal government who prohibits, prevents, attempts, or threatens to
prohibit or prevent any other federal officer or employee from having direct prohibit or prevent any other federal officer or employee from having direct
oral or written communication or contact with any Member, committee, or oral or written communication or contact with any Member, committee, or
subcommittee. This prohibition applies irrespective of whether such subcommittee. This prohibition applies irrespective of whether such
communication was initiated by such officer or employee or in response to communication was initiated by such officer or employee or in response to
the request or inquiry of such Member, committee, or subcommittee. Further, the request or inquiry of such Member, committee, or subcommittee. Further,
any punishment or threat of punishment because of any contact or any punishment or threat of punishment because of any contact or
communication by an officer or employee with a Member, committee, or communication by an officer or employee with a Member, committee, or
subcommittee is prohibited under the provisions of this act.subcommittee is prohibited under the provisions of this act.
implementing or enforcing agreements in Standard Forms 312 and 4414 of implementing or enforcing agreements in Standard Forms 312 and 4414 of
the government or any other nondisclosure policy, form, or agreement if such the government or any other nondisclosure policy, form, or agreement if such
policy, form, or agreement does not contain a provision that states that the policy, form, or agreement does not contain a provision that states that the
restrictions are consistent with and do not supersede, conflict with, or restrictions are consistent with and do not supersede, conflict with, or
otherwise alter the employee obligation, rights, and liabilities created by:otherwise alter the employee obligation, rights, and liabilities created by:
direction of the Comptroller General of the United States.direction of the Comptroller General of the United States.
and application of public funds.and application of public funds.
a separate department in the Library of Congress. It called upon the service a separate department in the Library of Congress. It called upon the service
analysis, appraisal, and evaluation of any legislative proposal … and analysis, appraisal, and evaluation of any legislative proposal … and
otherwise to assist in furnishing a basis forotherwise to assist in furnishing a basis for the proper determination of the proper determination of
measures before the committee.measures before the committee.
further assistance, (3) they are adequate to meet needs, and (4) any changes further assistance, (3) they are adequate to meet needs, and (4) any changes
in programs or procedures should be made.in programs or procedures should be made.
review and study, on a continuing basis, the application, administration, and and study, on a continuing basis, the application, administration, and
execution of those laws or parts of laws, the subject matter of which is within execution of those laws or parts of laws, the subject matter of which is within
the jurisdiction of that committee.the jurisdiction of that committee.
other responsibilities to Congress.other responsibilities to Congress.
programs.programs.
consultants by standing committees.consultants by standing committees.
revised, and (3) it performs a necessary function not already being revised, and (3) it performs a necessary function not already being
performed.performed.
(to) require a Government agency to do so and furnish a report thereon to the (to) require a Government agency to do so and furnish a report thereon to the
Congress.Congress.
request of either request of either
committees in analyzing and assessing program reviews or evaluation committees in analyzing and assessing program reviews or evaluation
studies. Authorized GAO to establish an Office of Program Review and studies. Authorized GAO to establish an Office of Program Review and
Evaluation to carry out these responsibilities.Evaluation to carry out these responsibilities.
information, data, estimates, and statistics directly from the various information, data, estimates, and statistics directly from the various
departments, agencies, and establishmentsdepartments, agencies, and establishments
and comparison of costs that would be incurred in carrying out the bill during and comparison of costs that would be incurred in carrying out the bill during
the next and following four fiscal years in which it would be effective.the next and following four fiscal years in which it would be effective.
and activities within departments and government-wide and report annually and activities within departments and government-wide and report annually
to Congress on the findings, including the cost of such duplication.to Congress on the findings, including the cost of such duplication.
records about an agencyrecords about an agency
financial transactions.financial transactions.
jurisdiction over the pertinent agency program or activity.jurisdiction over the pertinent agency program or activity.
Separate from expanding Separate from expanding
institutions through which other actors may track developments and identify issues that merit institutions through which other actors may track developments and identify issues that merit
this perspective, it is possible thatthis perspective, it is possible that
counted on to sound an alarm in most cases in which the bureaucracy has arguably violated counted on to sound an alarm in most cases in which the bureaucracy has arguably violated
necessarily relinquished legislative responsibility to anyone else. It has just found a more necessarily relinquished legislative responsibility to anyone else. It has just found a more
efficient way to legislate.efficient way to legislate.
programs, policies, and operations of the government. In addition, Congress has created various programs, policies, and operations of the government. In addition, Congress has created various
agencies and, at the same time, provide additional information and oversight-related analyses to agencies and, at the same time, provide additional information and oversight-related analyses to
Congress. In some cases, Congress. In some cases,
- Established the first requirements for the management and oversight of federal advisory committees to ensure impartial and relevant expertise. As required by the act, the General Services Administration (GSA) administers and provides management guidelines for advisory committees.
- Directed GSA to maintain a specialized, federal government, interagency, information-sharing database that collects data on federal advisory committee activities government-wide and is publicly available at http://www.facadatabase.gov.
- Strengthened internal management and financial controls, accounting systems, and financial reports. The law required the internal accounting systems to be consistent with standards prescribed by the Comptroller General, including a requirement that all assets be safeguarded against waste, fraud, loss, unauthorized use, and misappropriation.509
- Provided for ongoing evaluations of the internal control and accounting systems that protect federal programs against waste, fraud, abuse, and mismanagement.
- Mandated that the head of each agency report annually to the President and Congress on the condition of these systems and on agency actions to correct any material weakness that the reports identify.
- FMFIA is also related to the Chief Financial Officers Act (P.L. 101-576), which calls upon the director of OMB to submit a financial management status report to appropriate congressional committees.510 Part of this report is to be a summary of reports on internal accounting and administrative control systems as required by FMFIA.
U.S.C. §1101 note)
or other authorityor other authority
be developed in consultation with relevant congressional offices and with be developed in consultation with relevant congressional offices and with
information from information from
may update plans if circumstances change.may update plans if circumstances change.
The annual plans outlining these goals are also available to Congress.The annual plans outlining these goals are also available to Congress.
the end of the fiscal year.the end of the fiscal year.
areas; and goals for management improvements needed across the Federal areas; and goals for management improvements needed across the Federal
- Established parliamentary procedures under which Congress can consider legislation to disapprove federal rules.513 Congress has legislative authority over federal rules, which agencies issue pursuant to statutory delegations of authority. The act provided a tool that can enable Congress to more easily use its legislative authority.
- Required any agency promulgating a covered rule to submit the rule to each house of Congress and the Comptroller General before it can go into effect.
- Established that rules designated by OIRA as "major" generally may not take effect until at least 60 days after submission or publication, thereby giving Congress more time to consider disapproving such rules before they take effect.
- Subjected all covered rules to disapproval through enactment of a joint resolution of disapproval, which requires passage of both houses and signature of the President to become law (or an override of the President's veto). Upon enactment of such a joint resolution, no new rule that is "substantially the same" as the disapproved rule may be issued unless it is specifically authorized by a subsequent law.
- Established that "[n]o determination, finding, action, or omission" under the act shall be subject to judicial review.
31 U.S.C. §6101 note)
most federal grants, loans, and contracts.most federal grants, loans, and contracts.
Secretary of the Treasury and director of OMB to establish government-wide Secretary of the Treasury and director of OMB to establish government-wide
financial data standards and required online reporting of extensive data on financial data standards and required online reporting of extensive data on
budget execution.budget execution.
Congress created statutory inspectors general (IGs) to combat waste, fraud, and abuse within Congress created statutory inspectors general (IGs) to combat waste, fraud, and abuse within
designated federal departments and agencies.designated federal departments and agencies.
general (OIGs) conduct and publish audits and investigations, among other duties. By law, OIGs general (OIGs) conduct and publish audits and investigations, among other duties. By law, OIGs
are nonpartisan, independent offices, and are nonpartisan, independent offices, and
federal entities, including departments, agencies, boards, commissions, and government-federal entities, including departments, agencies, boards, commissions, and government-
sponsored enterprises in both the legislative and executive branches.sponsored enterprises in both the legislative and executive branches.
within agencies, they have explicit duties to report directly to Congress on their work and within agencies, they have explicit duties to report directly to Congress on their work and
frequently conduct audits and investigations requested by Members or committees or required by frequently conduct audits and investigations requested by Members or committees or required by
statute.statute.
Inspector General Act of 1978
Act originally created OIGs in 12 Act originally created OIGs in 12
authorities and responsibilities.authorities and responsibilities.
enactment, as described belowenactment, as described below
reporting obligations of all IGs and agency heads.reporting obligations of all IGs and agency heads.
established salary, bonus, and award provisions; added budget protections for established salary, bonus, and award provisions; added budget protections for
OIGs; required OIG websites to include all completed audits and reports; and OIGs; required OIG websites to include all completed audits and reports; and
amended IG removal requirements and reporting obligations.amended IG removal requirements and reporting obligations.
responsibilities regarding audits and investigations that span multiple IG responsibilities regarding audits and investigations that span multiple IG
jurisdictions; amended the membership and investigatory procedures of CIGIEjurisdictions; amended the membership and investigatory procedures of CIGIE
's Integrity Committee; and required IGs to submit documents containing Integrity Committee; and required IGs to submit documents containing
recommendations for corrective action to affiliated agency heads, congressional recommendations for corrective action to affiliated agency heads, congressional
committees of jurisdiction, and others upon request.committees of jurisdiction, and others upon request.
Pursuant to the IG Act, the principal purposes of IGs include:
conducting and supervising audits and investigations related to agencythe prevention and detection of fraud and abuse in such programs and the prevention and detection of fraud and abuse in such programs and
operations; andoperations; and
Moreover, the IG Act prohibits the transfer of Moreover, the IG Act prohibits the transfer of
521 Types and Categories
64, and individual statutes outside the IG Act govern the remaining 64, and individual statutes outside the IG Act govern the remaining
grouped into four different types based on authorizing statute, appointment method, affiliated grouped into four different types based on authorizing statute, appointment method, affiliated
federal entity and the branch of government in which it is located, oversight jurisdiction, and federal entity and the branch of government in which it is located, oversight jurisdiction, and
oversight duration.oversight duration.
appointed with the advice and consent of the Senate; appointed with the advice and consent of the Senate;
appointed by agency leaders; appointed by agency leaders;
524 Authorities and Responsibilities
and responsibilities to carry out their respective missions. Several of these authorities and and responsibilities to carry out their respective missions. Several of these authorities and
responsibilities are described in more detail below.responsibilities are described in more detail below.
525 Oversight Jurisdiction
Typically, the jurisdiction of an IG includes only the programs, operations, and activities of a Typically, the jurisdiction of an IG includes only the programs, operations, and activities of a
single affiliated entity and its components. In some cases, one IG operates for multiple federal single affiliated entity and its components. In some cases, one IG operates for multiple federal
entities.entities.
Federal Reserve System. In other cases, multiple IGs operate for a single federal entity. For Federal Reserve System. In other cases, multiple IGs operate for a single federal entity. For
example, two statutory IGs operate for the Department of the Treasury—one IG to oversee example, two statutory IGs operate for the Department of the Treasury—one IG to oversee
department-wide programs and operations and one IG (department-wide programs and operations and one IG (the U.S. Treasury Inspector General for Tax U.S. Treasury Inspector General for Tax
Administration) to oversee the programs and operations of the Internal Revenue Service.Administration) to oversee the programs and operations of the Internal Revenue Service.
Reporting Requirements
IGs have various reporting obligations to Congress, the Attorney General, agency IGs have various reporting obligations to Congress, the Attorney General, agency
public. One such obligation is to report suspected violations of federal criminal law directly and public. One such obligation is to report suspected violations of federal criminal law directly and
expeditiously to the Attorney General.expeditiously to the Attorney General.
activities, findings, and recommendations to the agency heads, who must submit the IGsactivities, findings, and recommendations to the agency heads, who must submit the IGs
to Congress, unaltered, within 30 days.to Congress, unaltered, within 30 days.
the public within 60 days of their submission to Congress.the public within 60 days of their submission to Congress.
serious or flagrant problemsserious or flagrant problems
Congress within seven days.Congress within seven days.
Oversight.gov, a central repository for OIG reports that was established in 2017.Oversight.gov, a central repository for OIG reports that was established in 2017.
532 Finding
variety of information on the activities of variety of information on the activities of
IG offices as well as recommendation tracking, analytics related to IG productivity, and regular updates on IG vacancies.recommendation tracking, analytics related to IG productivity, and regular updates on IG vacancies.
information on the IG Act and IG community; a number of manuals, guides, and standards for investigations information on the IG Act and IG community; a number of manuals, guides, and standards for investigations
and audits; and a directory of contact information, including websites, for all IG offices.and audits; and a directory of contact information, including websites, for all IG offices.
Independence
Under the IG Act, IGs are to be selected without regard to political affiliation and solely on the Under the IG Act, IGs are to be selected without regard to political affiliation and solely on the
basis of integrity and demonstrated ability in accounting, auditing, financial and management basis of integrity and demonstrated ability in accounting, auditing, financial and management
analysis, law, public administration, or investigations.analysis, law, public administration, or investigations.
staff and access all records related to the programs and operations of their affiliated entities.staff and access all records related to the programs and operations of their affiliated entities.
cases. An IG may decide to conduct a review requested by the agency head, the President, cases. An IG may decide to conduct a review requested by the agency head, the President,
Congress, agency employees, or others. They are not obligated to do so, however, unless required Congress, agency employees, or others. They are not obligated to do so, however, unless required
by law.by law.
the head or to the officer next in rank if such authority is delegated.the head or to the officer next in rank if such authority is delegated.
establishment and DFE IGs formulate their own budget estimates, which are provided to establishment and DFE IGs formulate their own budget estimates, which are provided to
Congress as part of the PresidentCongress as part of the President
in separate budget accounts from the agencies in which they operate.in separate budget accounts from the agencies in which they operate.
538 Appointment and Removal Methods
and removable by the President. and removable by the President.
its effective date.539 A DFE IG, by contrast, is appointed and can be removed by the agency head, who must also notify DFE IG, by contrast, is appointed and can be removed by the agency head, who must also notify
a board or commission is considered the DFE head, removal of a DFE IG requires the written a board or commission is considered the DFE head, removal of a DFE IG requires the written
concurrence of a two-thirds majority of the board or commission members.concurrence of a two-thirds majority of the board or commission members.
Service Service
written concurrence of at least seven of the nine presidentially appointed postal governors.542 Coordination and Oversight Coordination among the IGs and oversight of their actions exists through several channels, Coordination among the IGs and oversight of their actions exists through several channels,
including interagency bodies created by public law or administrative directiveincluding interagency bodies created by public law or administrative directive
maintain programs and resources to train and professionalize OIG maintain programs and resources to train and professionalize OIG
personnel.personnel.
officers, such as a representative of the FBI and the special counsel of the officers, such as a representative of the FBI and the special counsel of the
Office of Special Counsel.Office of Special Counsel.
its ranks, while the executive chair is the OMB deputy director of its ranks, while the executive chair is the OMB deputy director of
management.management.
allegations of IG wrongdoing. The committee receives, reviews, and refers allegations of IG wrongdoing. The committee receives, reviews, and refers
for investigation alleged misconduct by for investigation alleged misconduct by
and procedures detailed in the IG Act.and procedures detailed in the IG Act.
members—four IGs on the full council, the FBI representative on the members—four IGs on the full council, the FBI representative on the
council, and the director of the Office of Government Ethics. The committee council, and the director of the Office of Government Ethics. The committee
chairperson is elected to a two-year term by the members of the chairperson is elected to a two-year term by the members of the
committee.committee.
For example, Congress established a lead IG for overseas contingency For example, Congress established a lead IG for overseas contingency
operations—a formal role assigned to one of three IGs (Department of operations—a formal role assigned to one of three IGs (Department of
Defense, Department of State, and U.S. Agency for International Defense, Department of State, and U.S. Agency for International
DevelopmentDevelopment550) to coordinate comprehensive oversight of ) to coordinate comprehensive oversight of
Congress established a Council of Inspectors General on Financial Oversight Congress established a Council of Inspectors General on Financial Oversight
to facilitate information sharing among them and develop ways to improve to facilitate information sharing among them and develop ways to improve
financial oversight.financial oversight.
552 Agencies have also created organizations administratively to help coordinate IG activities and capabilities for selected policy issues, to help coordinate IG activities and capabilities for selected policy issues,
such as the Defense Council on Integrity and Efficiency and the Disaster such as the Defense Council on Integrity and Efficiency and the Disaster
Assistance Working Group.Assistance Working Group.
553 The Pandemic Response Accountability Committee (PRAC)
in agencies that agencies that
PRAC with three duties related to the federal PRAC with three duties related to the federal
conducting oversight, and supporting oversight being conducted by IGs across the federal government. The conducting oversight, and supporting oversight being conducted by IGs across the federal government. The
of the complexity, scope, and importance of the federal response to COVID-19 and the value of having a single of the complexity, scope, and importance of the federal response to COVID-19 and the value of having a single
source for information on that response.source for information on that response.
554 Oversight Information Sources and
Consultative Services Congress calls upon a variety of sources for information and analysis to support its oversight Congress calls upon a variety of sources for information and analysis to support its oversight
activities. Legislative support agencies—CRS, CBO, and GAO—provide most of this assistance. activities. Legislative support agencies—CRS, CBO, and GAO—provide most of this assistance.
In addition, various support offices established in the House and Senate may have a role in In addition, various support offices established in the House and Senate may have a role in
oversight through the legal, legislative, administrative, financial, and ceremonial functions they oversight through the legal, legislative, administrative, financial, and ceremonial functions they
perform. Two of these—the Offices of Senate Legal Counsel and House General Counsel—are perform. Two of these—the Offices of Senate Legal Counsel and House General Counsel—are
highlighted below. A range of outside interest groups and research organizations also provide rich highlighted below. A range of outside interest groups and research organizations also provide rich
sources of information.sources of information.
Congressional Research Service
Reference Service in 1914, CRS was renamed and given expanded research and analytic duties Reference Service in 1914, CRS was renamed and given expanded research and analytic duties
with the passage of the Legislative Reorganization Act of 1970.with the passage of the Legislative Reorganization Act of 1970.
oversee the executive branch in a system characterized by separation of powers.oversee the executive branch in a system characterized by separation of powers.
requests for assistance from all Members of both houses regardless of requests for assistance from all Members of both houses regardless of
service, or political philosophy. CRS also assists congressional staff service, or political philosophy. CRS also assists congressional staff whether in Washington, DC, or
their staffs may request help from CRStheir staffs may request help from CRS in, for example, , for example,
for legislationfor legislation
comparing legislative proposalscomparing legislative proposals,
understanding the effects of House and Senate rules on the legislative processunderstanding the effects of House and Senate rules on the legislative process
legal effects a bill may have. CRS also assists Members and staff legal effects a bill may have. CRS also assists Members and staff
consultations inconsultations in
and memorandaand memoranda
podcasts, database searchesdatabase searches
testimony before congressional committees.testimony before congressional committees.
of Members and committees consulting with the professional drafting staff within each chamberof Members and committees consulting with the professional drafting staff within each chamber
's Office of the Legislative Counsel as they translate Office of the Legislative Counsel as they translate
legislative language. CRS is also prohibited from preparing products of a partisan nature or legislative language. CRS is also prohibited from preparing products of a partisan nature or
advocating advocating for bills or policies and bills or policies and from researching individual Members or living former Members of researching individual Members or living former Members of
Congress (other than holders of, or nominees to, federal appointive office). It also cannot Congress (other than holders of, or nominees to, federal appointive office). It also cannot
undertake casework or provide translation services, provide personal legal or medical advice, undertake casework or provide translation services, provide personal legal or medical advice,
undertake personal or academic research, provide clerical assistance, or conduct audits or field undertake personal or academic research, provide clerical assistance, or conduct audits or field
investigations.investigations.
authoritativeness, objectivity, and nonpartisanship. CRS makes no legislative or other policy authoritativeness, objectivity, and nonpartisanship. CRS makes no legislative or other policy
recommendations to Congress. Its responsibility is to ensure that Members of the House and recommendations to Congress. Its responsibility is to ensure that Members of the House and
Senate have available the best possible information and analysis on which to base the policy Senate have available the best possible information and analysis on which to base the policy
decisions the American people have elected them to make.decisions the American people have elected them to make.
Committee on the Library.Committee on the Library.
public access to CRS reports (https://public access to CRS reports (https://
congressional requests or responses (such as confidential memoranda) remains unchanged, and congressional requests or responses (such as confidential memoranda) remains unchanged, and
only the Members of Congress who received these confidential communications may release only the Members of Congress who received these confidential communications may release
them.them.
Congressional Budget Office
Since its founding in 1974,Since its founding in 1974,
of budgetary and economic information to support the congressional budget process in the House of budgetary and economic information to support the congressional budget process in the House
Congress and the budget processCongress and the budget process
in addition to preliminary, informal estimates of legislative proposals at various stages of the in addition to preliminary, informal estimates of legislative proposals at various stages of the
legislative process. Additionally, CBO regularly prepares reports on the economic and budget legislative process. Additionally, CBO regularly prepares reports on the economic and budget
outlook, analysis of the Presidentoutlook, analysis of the President
unfunded mandates, and products and testimony related to other budgetary matters.unfunded mandates, and products and testimony related to other budgetary matters.
To assist in its work, the CBO director "is authorized to secure information, data, estimates, and statistics directly from the various departments, agencies, and establishments of the executive branch of Government and the regulatory agencies and commissions of the Government."561
CBO does not make policy recommendations, and its reports and cost estimates contain CBO does not make policy recommendations, and its reports and cost estimates containinformation regarding the agencyinformation regarding the agency
from informal cost estimates for legislation being developed privately by Members of Congress from informal cost estimates for legislation being developed privately by Members of Congress
or their staffsor their staffs
appoint the CBO director after considering recommendations from the two budget committees. appoint the CBO director after considering recommendations from the two budget committees.
The Congressional Budget and Impoundment Control Act of 1974 specifies that CBOThe Congressional Budget and Impoundment Control Act of 1974 specifies that CBO
is to be chosen without regard to political affiliation.is to be chosen without regard to political affiliation.
Government Accountability Office
The Government Accountability OfficeThe Government Accountability Office
Office, was established by the Budget and Accounting Act of 1921 as an independent auditor of Office, was established by the Budget and Accounting Act of 1921 as an independent auditor of
government government
agencies.agencies.
responsibilities and to help improve the performance and ensure the accountability of the federal responsibilities and to help improve the performance and ensure the accountability of the federal
government.government.
564 GAO's reports typically support congressional oversight through focusing on:reports typically support congressional oversight through focusing on:
services that are services that are "professional, objective, fact-based, nonpartisan, non-ideological, fair, and balanced.objective, fact-based, nonpartisan, non-ideological, fair, and balanced."565 The The
agency operates under strict professional standards, including Government Auditing Standardsagency operates under strict professional standards, including Government Auditing Standards
566 and a quality assurance framework. GAOand a quality assurance framework. GAO
reports. All non-classified reports are made available to the public through posting on GAOreports. All non-classified reports are made available to the public through posting on GAO
priorities, are included in GAOare included in GAO
or committee or conference reports. It undertakes a small percentage of reviews under the or committee or conference reports. It undertakes a small percentage of reviews under the
Comptroller GeneralComptroller General
how to request GAO reports, GAOhow to request GAO reports, GAO
(contained in its (contained in its Congressional Protocols
other things. GAO encourages Members and other things. GAO encourages Members and congressional staff to consult with its staff when considering a staff to consult with its staff when considering a
request or mandate for a report.request or mandate for a report.
performing forensic audits and investigations of waste, fraud, and abuse; providing various legal performing forensic audits and investigations of waste, fraud, and abuse; providing various legal
services; prescribing accounting principles and standards for the executive branch; providing services; prescribing accounting principles and standards for the executive branch; providing
other services to help the audit and evaluation community improve and keep abreast of current other services to help the audit and evaluation community improve and keep abreast of current
developments; occasionally detailing staff to work for congressional committees for up to one developments; occasionally detailing staff to work for congressional committees for up to one
year on request of committee leadership; and providing testimony year on request of committee leadership; and providing testimony
—with the advice and consent of the Senatewith the advice and consent of the Senate
bicameral congressional commission.bicameral congressional commission.570 The Comptroller General is appointed to a 15-year term The Comptroller General is appointed to a 15-year term
and may not be reappointed. GAOand may not be reappointed. GAO
Atlanta, Boston, Chicago, Dallas, Dayton, Denver, Huntsville, Los Angeles, Norfolk, Oakland, Atlanta, Boston, Chicago, Dallas, Dayton, Denver, Huntsville, Los Angeles, Norfolk, Oakland,
and Seattle.and Seattle.
Offices of Senate Legal Counsel and House General Counsel
Since their establishment, the Offices of Senate Legal Counsel and House General Counsel have Since their establishment, the Offices of Senate Legal Counsel and House General Counsel have
developed parallel yet distinctly unique and independent roles as institutional legal developed parallel yet distinctly unique and independent roles as institutional legal
the two bodies they represent. Both offices perform functions important to committee oversight, the two bodies they represent. Both offices perform functions important to committee oversight,
including representing the committees of their respective chambers in certain judicial including representing the committees of their respective chambers in certain judicial
proceedings.proceedings.
Senate Legal Counsel
committees, officers, and employees of the Senate on matters pertaining to their official duties. It committees, officers, and employees of the Senate on matters pertaining to their official duties. It
was established was established
or anotheror another
is a party and also as amicus curiae when the Senate has an institutional interestis a party and also as amicus curiae when the Senate has an institutional interest575;
legal advice and assistance to Senatorslegal advice and assistance to Senators576;
nonpartisan purposes and limitations of Title VII of the Ethics Act as the Senate may direct.nonpartisan purposes and limitations of Title VII of the Ethics Act as the Senate may direct.
proceedings to obtain evidence for Senate investigations. Specifically, the office may represent a proceedings to obtain evidence for Senate investigations. Specifically, the office may represent a
Senate committee or subcommittee in a civil action to enforce a subpoena.Senate committee or subcommittee in a civil action to enforce a subpoena.
committee may direct the Senate legal counsel to represent it or any of its subcommittees in an committee may direct the Senate legal counsel to represent it or any of its subcommittees in an
application for an immunity order.application for an immunity order.
of advising of advising
requests for the withdrawal of Senate documents and the responsibility of advising committees requests for the withdrawal of Senate documents and the responsibility of advising committees
about their promulgation and implementation of rules and procedures for congressional about their promulgation and implementation of rules and procedures for congressional
investigations. The office also provides advice about legal questions that arise during the course investigations. The office also provides advice about legal questions that arise during the course
of investigations.of investigations.
employees on a wide range of legal and administrative matters employees on a wide range of legal and administrative matters
the House practice, the Senate legal counsel plays no formal role in the review and issuance of the House practice, the Senate legal counsel plays no formal role in the review and issuance of
subpoenas. However, committees may wish to consult with the office regarding the form and subpoenas. However, committees may wish to consult with the office regarding the form and
substance of proposed subpoenas prior to their issuance by committees.substance of proposed subpoenas prior to their issuance by committees.
President pro tempore of the Senate from among recommendations submitted by the majority and President pro tempore of the Senate from among recommendations submitted by the majority and
minority leaders of the Senate without regard minority leaders of the Senate without regard
581 House General Counsel
of counsel for the institution. The office provides legal assistance and representation to Members, of counsel for the institution. The office provides legal assistance and representation to Members,
committees, officers, and employees of the House of Representativescommittees, officers, and employees of the House of Representatives
committees in the preparation and service of subpoenas; representing Members, committees, committees in the preparation and service of subpoenas; representing Members, committees,
officers, and employees of the House in judicial proceedings; providing legal advice and officers, and employees of the House in judicial proceedings; providing legal advice and
assistance to Members; and providing legal guidance regarding requests from executive branch assistance to Members; and providing legal guidance regarding requests from executive branch
with various asserted constitutional, statutory, and common law privileges; responding to with various asserted constitutional, statutory, and common law privileges; responding to
executive agencies and officials executive agencies and officials
process for obtaining a contempt citation with respect to a recalcitrant witness.process for obtaining a contempt citation with respect to a recalcitrant witness.
represents committees in federal court on applications for immunity orders pursuant to Title 18, represents committees in federal court on applications for immunity orders pursuant to Title 18,
Section 6005, of the Section 6005, of the U.S. Code; appears as amicus curiae in cases affecting House committee ; appears as amicus curiae in cases affecting House committee
investigations; defends against attempts to obtain direct or indirect judicial interference with investigations; defends against attempts to obtain direct or indirect judicial interference with
congressional subpoenas or other investigatory authority; represents committees seeking to congressional subpoenas or other investigatory authority; represents committees seeking to
prevent compelled disclosure of nonpublic information prevent compelled disclosure of nonpublic information
legislative activities; and appears in court on behalf of committees seeking judicial assistance in legislative activities; and appears in court on behalf of committees seeking judicial assistance in
obtaining access to documents or information, such as documents that are under seal or obtaining access to documents or information, such as documents that are under seal or
office. The office functions office. The office functions
Bipartisan Legal Advisory Group,Bipartisan Legal Advisory Group,
582 Office of Management and Budget
OMB came into existence under its current name in 1970. Its predecessor agency, the Bureau of OMB came into existence under its current name in 1970. Its predecessor agency, the Bureau of
the Budget, was established in 1921. Initially created as a unit in the Treasury Department, the the Budget, was established in 1921. Initially created as a unit in the Treasury Department, the
agency has been a part of the Executive Office of the President since 1939.agency has been a part of the Executive Office of the President since 1939.
583 Capabilities
OMB, though created by Congress, functions in many ways as the PresidentOMB, though created by Congress, functions in many ways as the President
management and implementation of policy, including the federal budget.management and implementation of policy, including the federal budget.
's major responsibilities include:major responsibilities include:
rescissions;rescissions;
economically, and minimize unnecessary overlap and duplication;economically, and minimize unnecessary overlap and duplication;
information collection on the public under the Paperwork Reduction Act of information collection on the public under the Paperwork Reduction Act of
maintain, and use statistics; (3) how agenciesmaintain, and use statistics; (3) how agencies
how agencies develop systems for ensuring privacy, confidentiality, security, how agencies develop systems for ensuring privacy, confidentiality, security,
and the sharing of information collected by the government; and (5) how the and the sharing of information collected by the government; and (5) how the
government acquires and uses information technology, pursuant to the government acquires and uses information technology, pursuant to the
Paperwork Reduction Act of 1995,Paperwork Reduction Act of 1995,
other legislation;other legislation;
operations;operations;
and
and forms.and forms.
Limitations OMB is inevitably drawn into institutional and partisan struggles between the President and OMB is inevitably drawn into institutional and partisan struggles between the President and
Congress. Difficulties with Congress notwithstanding, OMB is a central coordinator and overseer Congress. Difficulties with Congress notwithstanding, OMB is a central coordinator and overseer
for executive agencies and can be a rich potential source of information for investigative and for executive agencies and can be a rich potential source of information for investigative and
oversight committees. In addition, Congress may through legislation assign duties to OMBoversight committees. In addition, Congress may through legislation assign duties to OMB
Legislative Coordination and Clearance, Circular A-19, and OMB
communicate with and rely upon Congress to enact legislation and provide appropriations. An example of this communicate with and rely upon Congress to enact legislation and provide appropriations. An example of this
institutional tensioninstitutional tension
legislative coordination and clearance procedures described in OMBlegislative coordination and clearance procedures described in OMB
enrolled legislation. To create a singular Administration voice, OMBlegislation. To create a singular Administration voice, OMB
centralizes the development of the Administrationcentralizes the development of the Administration
Congress and the agencies. This allows for consideration of various issues, including the Congress and the agencies. This allows for consideration of various issues, including the
creation of Statements of Administration Policy (SAPs), draft legislation, agency testimony, and agency reports.creation of Statements of Administration Policy (SAPs), draft legislation, agency testimony, and agency reports.
Through the process, OMB and White House officials decide which agency views shall be accepted and which shall Through the process, OMB and White House officials decide which agency views shall be accepted and which shall
be discarded in forming the Administrationbe discarded in forming the Administration
may reach out to Members of Congress or committee staff about the agencymay reach out to Members of Congress or committee staff about the agency
information. Extensive budgetary materials are also available from the executive branch. Some of information. Extensive budgetary materials are also available from the executive branch. Some of
the major sources of budgetary information are available on and off Capitol Hill. They include (1) the major sources of budgetary information are available on and off Capitol Hill. They include (1)
the President and executive agencies (under the Budget and Accounting Act of 1921, the the President and executive agencies (under the Budget and Accounting Act of 1921, the
President presents an annual budget to Congress); (2) CBO; (3) the House and Senate Budget President presents an annual budget to Congress); (2) CBO; (3) the House and Senate Budget
Committees; (4) the House and Senate Appropriations Committees; and (5) the House and Senate Committees; (4) the House and Senate Appropriations Committees; and (5) the House and Senate
legislative committees. In addition, CRS and GAO prepare reports that address the budget and legislative committees. In addition, CRS and GAO prepare reports that address the budget and
related issues.related issues.
through the annual appropriations process, accounts for about one-third of federal spending. through the annual appropriations process, accounts for about one-third of federal spending.
Other House and Senate committees, particularly the House Committee on Ways and Means and Other House and Senate committees, particularly the House Committee on Ways and Means and
the Senate Committee on Finance, oversee more than $2 trillion in spending through the Senate Committee on Finance, oversee more than $2 trillion in spending through
reauthorizations, direct spending measures, and reconciliation legislation. In addition, the latter reauthorizations, direct spending measures, and reconciliation legislation. In addition, the latter
two committees oversee a diverse set of programs—including tax collection, tax expenditures, two committees oversee a diverse set of programs—including tax collection, tax expenditures,
and some user fees—through the revenue process. The oversight activities of all of these and some user fees—through the revenue process. The oversight activities of all of these
committees committees
available to them.available to them.
Executive Branch Budget Products
Budget of the United States Government contains the Budget Message of the President and contains the Budget Message of the President and
information on the Presidentinformation on the President
Analytical Perspectives, Budget of the United States Government contains analyses contains analyses
designed to highlight specified subject areas or provide other significant presentations of budget designed to highlight specified subject areas or provide other significant presentations of budget
data that place the budget in perspective. This volume includes economic and accounting data that place the budget in perspective. This volume includes economic and accounting
analyses, information on federal receipts and collections, analyses of federal spending, analyses, information on federal receipts and collections, analyses of federal spending,
information on federal borrowing and debt, baseline or current services estimates, and other information on federal borrowing and debt, baseline or current services estimates, and other
technical presentations. The technical presentations. The Analytical Perspectives volume also contains supplemental material volume also contains supplemental material
with several detailed tables—including tables showing the budget by agency and account and by with several detailed tables—including tables showing the budget by agency and account and by
function, subfunction, and program—that are available function, subfunction, and program—that are available
online. Historical Tables provides data on budget receipts, outlays, surpluses or deficits, federal debt, provides data on budget receipts, outlays, surpluses or deficits, federal debt,
and federal employment over an extended time period, generally from 1940 or earlier to the and federal employment over an extended time period, generally from 1940 or earlier to the
present. To the extent feasible, the data have been adjusted to provide consistency with the budget present. To the extent feasible, the data have been adjusted to provide consistency with the budget
and to provide comparability over time.and to provide comparability over time.
Appendix, Budget of the United States Government contains detailed information on the contains detailed information on the
various appropriations and funds that constitute the budget. The various appropriations and funds that constitute the budget. The Appendix contains financial contains financial
information on individual programs and appropriation accounts. It includes for each agency the information on individual programs and appropriation accounts. It includes for each agency the
proposed text of appropriations language, budget schedules for each account, legislative proposed text of appropriations language, budget schedules for each account, legislative
proposals, explanations of the work to be performed and the funds needed, and proposed general proposals, explanations of the work to be performed and the funds needed, and proposed general
communications to Congress continue after submission of the budget (typically in early February) communications to Congress continue after submission of the budget (typically in early February)
and usually include a series of budget amendments and supplemental appropriations, the Mid-and usually include a series of budget amendments and supplemental appropriations, the Mid-
Session Review, SAPs on legislation, and even revised budgets on occasion. Most of these Session Review, SAPs on legislation, and even revised budgets on occasion. Most of these
additional communications are issued as House documents and are available on the web from the additional communications are issued as House documents and are available on the web from the
Government Publishing Office or the OMB home page (in the case of SAPs). The initial budget Government Publishing Office or the OMB home page (in the case of SAPs). The initial budget
products often do not provide sufficient information on the Presidentproducts often do not provide sufficient information on the President
recommendations to enable committees to begin developing legislation. Further budgetary recommendations to enable committees to begin developing legislation. Further budgetary
information is provided in the agenciesinformation is provided in the agencies
submission of legislative proposals. Finally, many executive agency documents (such as agency submission of legislative proposals. Finally, many executive agency documents (such as agency
budget submissions to OMB) are often not made available to Congress.budget submissions to OMB) are often not made available to Congress.
Agency
House and Senate Appropriations Committees each year to support their budget requests. House and Senate Appropriations Committees each year to support their budget requests.
Generally, agency budget justifications consist of descriptions of each agencyGenerally, agency budget justifications consist of descriptions of each agency
activities and their purposes.activities and their purposes.
in appropriations and activities for the next fiscal year, often concentrating on the increase or in appropriations and activities for the next fiscal year, often concentrating on the increase or
decrease in spending from the previous fiscal year. The format and content of budget decrease in spending from the previous fiscal year. The format and content of budget
justifications differ from agency to agency and may reflect the influence of agencies and their justifications differ from agency to agency and may reflect the influence of agencies and their
component organizations, House and Senate appropriators, and OMB. Many participants in the component organizations, House and Senate appropriators, and OMB. Many participants in the
annual appropriations process also refer to these documents as annual appropriations process also refer to these documents as
justifications,justifications,
posting online (P.L. 117-40). Prior to the enactment of this law, statutory provisions that posting online (P.L. 117-40). Prior to the enactment of this law, statutory provisions that
the executive budget process in Title 31 of the the executive budget process in Title 31 of the U.S. Code were relatively silent on the topic of agency budget were relatively silent on the topic of agency budget
justifications submitted to Congress. In practice, this silence left considerable discretion in the creation of these justifications submitted to Congress. In practice, this silence left considerable discretion in the creation of these
documents. OMBdocuments. OMB
before submitting their budget justifications. Typically, the written justifications vary in form and content with each before submitting their budget justifications. Typically, the written justifications vary in form and content with each
agency and appropriations subcommittee, reflecting the ongoing relationship between them. An agency's budget agency and appropriations subcommittee, reflecting the ongoing relationship between them. An agency's budget
justification usually contains a detailed description of its programs and activities and their purposesjustification usually contains a detailed description of its programs and activities and their purposes
explanation of the proposed changes in appropriations and program activities for the next fiscal year.explanation of the proposed changes in appropriations and program activities for the next fiscal year.
Among other things, P.L. 117-40 newly defined in statute that agency Among other things, P.L. 117-40 newly defined in statute that agency
annual budget justification materials of a Federal agency, or a component of a Federal agency, that are submitted, annual budget justification materials of a Federal agency, or a component of a Federal agency, that are submitted,
in conjunction within conjunction with
on USAspending.govon USAspending.gov, subject to OMB-developed data standards. In addition, the materials are required to be subject to OMB-developed data standards. In addition, the materials are required to be
Section 3502, of the Section 3502, of the U.S. Code, relating to federal information policy). Separately, the President, relating to federal information policy). Separately, the President
submission is also required to include a submission is also required to include a
Congressional Budget Justification Transparency Act of 2021 may be characterized as Congressional Budget Justification Transparency Act of 2021 may be characterized as
legislation promotes greater transparency in the appropriations process and provides interested parties with more legislation promotes greater transparency in the appropriations process and provides interested parties with more
opportunities to gather information and sound an alarm to Congress if additional oversight may be necessary. At opportunities to gather information and sound an alarm to Congress if additional oversight may be necessary. At
times, Congress and OMB may compete or cooperate for influence over the decisionmaking of agencies. For times, Congress and OMB may compete or cooperate for influence over the decisionmaking of agencies. For
example, House and Senate appropriators and OMB both have a role in the formulation of agenciesexample, House and Senate appropriators and OMB both have a role in the formulation of agencies
justifications. OMB has used increased transparency in the past in an attempt to exercise influence over agencies. justifications. OMB has used increased transparency in the past in an attempt to exercise influence over agencies.
It is unclear if transparency associated with this legislation could affect power relationships among agencies, It is unclear if transparency associated with this legislation could affect power relationships among agencies,
Congress, and OMB.590 Some Other Sources of Useful Budgetary Information
Appropriations Committees. The subcommittees of the House and Senate Appropriations The subcommittees of the House and Senate Appropriations
Committees hold extensive hearings on the fiscal year appropriations requests of federal Committees hold extensive hearings on the fiscal year appropriations requests of federal
departments and agencies. Each federal department or agency submits departments and agencies. Each federal department or agency submits justification material to the to the
Committees on Appropriations. Their submissions can run from several hundred pages to over Committees on Appropriations. Their submissions can run from several hundred pages to over
2,000 pages. The Appropriations subcommittees typically print this material with the hearing 2,000 pages. The Appropriations subcommittees typically print this material with the hearing
record of the federal officials concerning these requests.record of the federal officials concerning these requests.
Budget
annual concurrent budget resolution, conduct hearings on overall federal budget policy. These annual concurrent budget resolution, conduct hearings on overall federal budget policy. These
hearings and other fiscal analyses made by these panels address various aspects of federal hearings and other fiscal analyses made by these panels address various aspects of federal
programs and funding levels that can be useful sources of information.programs and funding levels that can be useful sources of information.
Other committees. To assist the Budget Committees in developing the concurrent budget To assist the Budget Committees in developing the concurrent budget
resolution, other committees are required to prepare resolution, other committees are required to prepare
committee print, may also be a useful source of detailed budget data.committee print, may also be a useful source of detailed budget data.
Internal agency studies and budget reviews. These agency studies and reviews are often These agency studies and reviews are often
conducted in support of budget formulation and can yield useful information about individual conducted in support of budget formulation and can yield useful information about individual
programs. The budgeting documents, evaluations, and priority rankings of individual agency programs. The budgeting documents, evaluations, and priority rankings of individual agency
programs can provide insights into executive branch views of the importance of individual programs can provide insights into executive branch views of the importance of individual
programs.programs.
Committees and Members can acquire useful information about executive branch programs and Committees and Members can acquire useful information about executive branch programs and
performance from nonfederal stakeholders. These stakeholders may bring expertise to performance from nonfederal stakeholders. These stakeholders may bring expertise to
congressional deliberations, and they may be categorized in many ways. Illustrative examples of congressional deliberations, and they may be categorized in many ways. Illustrative examples of
these stakeholders and their potential these stakeholders and their potential
State and local governments may offer valuable information to congressional overseers on the may offer valuable information to congressional overseers on the
efficiency, effectiveness, and fairness of federal programs and policies, including potential efficiency, effectiveness, and fairness of federal programs and policies, including potential
implementation challenges and unintended consequences. State and local governments administer implementation challenges and unintended consequences. State and local governments administer
many federal programs, policies, and funds—such as those related to health care (e.g., Medicaid), many federal programs, policies, and funds—such as those related to health care (e.g., Medicaid),
workforce development, education, and disaster management—and often audit or evaluate their workforce development, education, and disaster management—and often audit or evaluate their
effectiveness. Some state and local programs have also served as models for similar programs at effectiveness. Some state and local programs have also served as models for similar programs at
the federal level.the federal level.
Think tanks and good government organizations
agencies and programs are working. Examples of think tanks include the Brookings Institution, agencies and programs are working. Examples of think tanks include the Brookings Institution,
the RAND Corporation, and the Heritage Foundation. Examples of good government the RAND Corporation, and the Heritage Foundation. Examples of good government
organizations include the National Academy of Public Administration, the Partnership for Public organizations include the National Academy of Public Administration, the Partnership for Public
Service, and the Project on Government Oversight (POGO). Think tanks and good government Service, and the Project on Government Oversight (POGO). Think tanks and good government
organizations may operate under various legal authorities (e.g., 501(c)(3) status with the Internal organizations may operate under various legal authorities (e.g., 501(c)(3) status with the Internal
Revenue Service), and their political ideologies and policy issues of focus can vary widely. Some Revenue Service), and their political ideologies and policy issues of focus can vary widely. Some
oversight.oversight.
Media
committees conducting oversight. Media organizations provide committees conducting oversight. Media organizations provide
believe will be of interest to the general public as well as specialized reportingbelieve will be of interest to the general public as well as specialized reporting
might provide a more detailed view into particular policy areas. Additionally, in recent years there might provide a more detailed view into particular policy areas. Additionally, in recent years there
has been increased interest in nonprofit investigative journalism by organizations such as has been increased interest in nonprofit investigative journalism by organizations such as
ProPublica, which tend to produce ProPublica, which tend to produce
that may be of particular interest to Congress. Regardless of their focus, journalists may develop that may be of particular interest to Congress. Regardless of their focus, journalists may develop
sources and publicize information that can sources and publicize information that can be useful to Congress and would not otherwise come to useful to Congress and would not otherwise come to
the bodythe body
Interest groups might provide unique perspectives on the impact of legislation to Members and might provide unique perspectives on the impact of legislation to Members and
committees, including potential unintended consequences on specific populations. In general, committees, including potential unintended consequences on specific populations. In general,
interest groups interest groups
on a specific public policy issue, such as civil rights, education, or health. An interest group often on a specific public policy issue, such as civil rights, education, or health. An interest group often
takes a particular position on a policy issue and advocates for takes a particular position on a policy issue and advocates for
align with that position. Such advocacy can include attempts to directly influence public policy, align with that position. Such advocacy can include attempts to directly influence public policy,
including lobbying Members and congressional committees.including lobbying Members and congressional committees.
Nongovernmental organizations (NGOs), broadly speaking, are , broadly speaking, are
government involvement or control. The acronym NGO can encompass a broad range of entities, government involvement or control. The acronym NGO can encompass a broad range of entities,
such as international organizations or domestic nonprofit organizations. Similar to think tanks, such as international organizations or domestic nonprofit organizations. Similar to think tanks,
NGOs can vary in terms of their purpose, legal authorities, policy areas of focus, and political or NGOs can vary in terms of their purpose, legal authorities, policy areas of focus, and political or
religious affiliations. NGOs may be active in different aspects of social, political, scientific, religious affiliations. NGOs may be active in different aspects of social, political, scientific,
environmental, and humanitarian policymaking. NGOs might provide valuable assistance to environmental, and humanitarian policymaking. NGOs might provide valuable assistance to
congressional overseers in navigating a broad range of policy issues. According to the congressional overseers in navigating a broad range of policy issues. According to the
Department of State, NGOs Department of State, NGOs
problems that governments cannot address alone.problems that governments cannot address alone.
"591 Private sector companies might assist Members and committees in overseeing might assist Members and committees in overseeing
applying private sector expertise and practices to government programs and services. Companies that are private sector expertise and practices to government programs and services. Companies that are
regulated may also have feedback on the effectiveness of regulated may also have feedback on the effectiveness of
implementation could be improved. Companies may also market themselves to federal agencies, implementation could be improved. Companies may also market themselves to federal agencies,
seeking brand recognition and contracts. In addition to providing consultative services to seeking brand recognition and contracts. In addition to providing consultative services to
agencies, private sector companies may publish insights and perspectives on certain federal agencies, private sector companies may publish insights and perspectives on certain federal
policy issues, such as shared services, information technology, and cybersecurity.policy issues, such as shared services, information technology, and cybersecurity.
Members of the general public can provide useful feedback on how well federal programs and can provide useful feedback on how well federal programs and
services are working. Such feedback can assist Members and committees in obtaining policy-services are working. Such feedback can assist Members and committees in obtaining policy-
relevant information about program performance and in evaluating the problems individuals relevant information about program performance and in evaluating the problems individuals
might be having with federal administrators and agencies. A variety of methods might be might be having with federal administrators and agencies. A variety of methods might be
employed to solicit employed to solicit
investigations and hearings, field and on-site meetings, and surveys.investigations and hearings, field and on-site meetings, and surveys.
GENERAL INSTRUCTIONS
1. In complying with this Subpoena, you are required to produce all responsive documents that 1. In complying with this Subpoena, you are required to produce all responsive documents thatemployees, and representatives acting on your behalf. You are also required to produce employees, and representatives acting on your behalf. You are also required to produce
documents that you have a legal right to obtain, documents that you have a right to copy or documents that you have a legal right to obtain, documents that you have a right to copy or
have access to, and documents that you have placed in the temporary possession, custody, or have access to, and documents that you have placed in the temporary possession, custody, or
control of any third party. No records, documents, data or information called for by this request control of any third party. No records, documents, data or information called for by this request
shall be destroyed, modified, removed or otherwise made inaccessible to the Committee.shall be destroyed, modified, removed or otherwise made inaccessible to the Committee.
include them under that alternative identification.include them under that alternative identification.
was served. Also identify to which paragraph from the subpoena that such documents are was served. Also identify to which paragraph from the subpoena that such documents are
available and provide sufficient detail to allow the information to be copied to a readable available and provide sufficient detail to allow the information to be copied to a readable
format. If the information requested is stored in a computer, indicate whether you have an format. If the information requested is stored in a computer, indicate whether you have an
existing program that will print the records in a readable form.existing program that will print the records in a readable form.
document; (c) the general subject matter; (d) the date, author and addressee; and (e) the document; (c) the general subject matter; (d) the date, author and addressee; and (e) the
relationship of the author and addressee to each other.relationship of the author and addressee to each other.
the circumstances by which the document ceased to be in your possession, or control.the circumstances by which the document ceased to be in your possession, or control.
request, you should produce all documents which would be responsive as if the date were request, you should produce all documents which would be responsive as if the date were
correct.correct.
production of donor lists, or information otherwise enabling the re-creation of donor lists, production of donor lists, or information otherwise enabling the re-creation of donor lists,
such identifying information may be redacted.such identifying information may be redacted.
shall be produced immediately upon location or discovery subsequent thereto.shall be produced immediately upon location or discovery subsequent thereto.
delivered to the Majority Staff in Room B346 Rayburn House Office Building and the delivered to the Majority Staff in Room B346 Rayburn House Office Building and the
Minority Staff in Room 2101 Rayburn House Office Building.Minority Staff in Room 2101 Rayburn House Office Building.
GENERAL DEFINITIONS
following: memoranda, reports, expense reports, books, manuals, instructions, financial following: memoranda, reports, expense reports, books, manuals, instructions, financial
reports, working papers, records notes, letters, notices, confirmations, telegrams, receipts, reports, working papers, records notes, letters, notices, confirmations, telegrams, receipts,
appraisals, pamphlets, magazines, newspapers, prospectuses, interoffice and intra office appraisals, pamphlets, magazines, newspapers, prospectuses, interoffice and intra office
communications, electronic mail (E-mail), contracts, cables, notations of any type of communications, electronic mail (E-mail), contracts, cables, notations of any type of
conversation, telephone call, meeting or other communication, bulletins, printed matter, conversation, telephone call, meeting or other communication, bulletins, printed matter,
computer printouts, teletypes, invoices, transcripts, diaries, analyses, returns, summaries, computer printouts, teletypes, invoices, transcripts, diaries, analyses, returns, summaries,
minutes, bills, accounts, estimates, projections, comparisons, messages, correspondence, press minutes, bills, accounts, estimates, projections, comparisons, messages, correspondence, press
releases, circulars, financial statements, reviews, opinions, offers, studies and investigations, releases, circulars, financial statements, reviews, opinions, offers, studies and investigations,
modifications, revisions, changes, and amendments of any of the foregoing, as well as any modifications, revisions, changes, and amendments of any of the foregoing, as well as any
attachments or appendices thereto), and graphic or oral records or representations of any kind attachments or appendices thereto), and graphic or oral records or representations of any kind
(including without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, (including without limitation, photographs, charts, graphs, microfiche, microfilm, videotape,
recordings and motion pictures), and electronic, mechanical, and electric records or recordings and motion pictures), and electronic, mechanical, and electric records or
representations of any kind (including, without limitation, tapes, cassettes, discs, and representations of any kind (including, without limitation, tapes, cassettes, discs, and
recordings) and other written, printed, typed, or other graphic or recorded matter of any kind or recordings) and other written, printed, typed, or other graphic or recorded matter of any kind or
nature, however produced or reproduced, and whether preserved in writing, film, tape, disc, or nature, however produced or reproduced, and whether preserved in writing, film, tape, disc, or
videotape. A videotape. A
separate document. A draft or non-identical copy is a separate document within the meaning of separate document. A draft or non-identical copy is a separate document within the meaning of
this term.this term.
and whether face to face, in a meeting, by telephone, mail, telexes, discussions, releases, and whether face to face, in a meeting, by telephone, mail, telexes, discussions, releases,
personal delivery, or otherwise.personal delivery, or otherwise.
to be outside its scope. The singular includes plural number, and vice versa. The masculine to be outside its scope. The singular includes plural number, and vice versa. The masculine
includes the feminine and neuter genders.includes the feminine and neuter genders.
of the Vice President, the Office of Science and Technology Policy, the Office of Management of the Vice President, the Office of Science and Technology Policy, the Office of Management
and Budget, the United States Trade Representative, the Office of Public Liaison, the Office of and Budget, the United States Trade Representative, the Office of Public Liaison, the Office of
Correspondence, the Office of the Deputy Chief of Staff for Policy and Political Affairs, the Correspondence, the Office of the Deputy Chief of Staff for Policy and Political Affairs, the
Office of the Deputy Chief of Staff for White House Operations, the Domestic Policy Council, Office of the Deputy Chief of Staff for White House Operations, the Domestic Policy Council,
the Office of Federal Procurement Policy, the Office of Intergovernmental Affairs, the Office the Office of Federal Procurement Policy, the Office of Intergovernmental Affairs, the Office
of Legislative Affairs, Media Affairs, the National Economic Council, the Office of Policy of Legislative Affairs, Media Affairs, the National Economic Council, the Office of Policy
Development, the Office of Political Affairs, the Office of Presidential Personnel, the Office of Development, the Office of Political Affairs, the Office of Presidential Personnel, the Office of
the Press Secretary, the Office of Scheduling and Advance, the Council of Economic Advisors, the Press Secretary, the Office of Scheduling and Advance, the Council of Economic Advisors,
the Council on Environmental Quality, the Executive Residence, the Presidentthe Council on Environmental Quality, the Executive Residence, the President
Intelligence Advisory Board, the National Security Council, the Office of National Drug Intelligence Advisory Board, the National Security Council, the Office of National Drug
Control, and the Office of Policy Development.Control, and the Office of Policy Development.
International Brotherhood of TeamstersInternational Brotherhood of Teamsters
25 Louisiana Avenue, N.W.25 Louisiana Avenue, N.W.
Washington, D.C. 20001Washington, D.C. 20001
SCHEDULE A
through 1997.through 1997.
and procedures; (2) internal financial practices and reporting requirements; and (3) and procedures; (2) internal financial practices and reporting requirements; and (3)
authorization, approval, and review responsibilities.authorization, approval, and review responsibilities.
accountants.accountants.
journals (or other books of original entry) and ledgers including cash receipts journals, cash journals (or other books of original entry) and ledgers including cash receipts journals, cash
disbursements journals, revenue journals, general journals, subledgers, and workpapers disbursements journals, revenue journals, general journals, subledgers, and workpapers
reflecting accounting entries.reflecting accounting entries.
corruption, and all handouts and reports prepared and produced at each Committee meeting.corruption, and all handouts and reports prepared and produced at each Committee meeting.
E&L fund, or IBT general treasury) to any of the following entities/organizations:E&L fund, or IBT general treasury) to any of the following entities/organizations:
between the Teamsters and the Federal Election Commission.between the Teamsters and the Federal Election Commission.
treasury, DRIVE E&L fund, and DRIVE PAC.treasury, DRIVE E&L fund, and DRIVE PAC.
Appendix C. Examples of White House Response to
Congressional Requests
THE WHITE HOUSE
November 4, 1982
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND
AGENCIES SUBJECT: Procedures Governing Responses to Congressional Request for Information
fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.
While this Administration, like its predecessors, has an obligation to protect the confidentiality of While this Administration, like its predecessors, has an obligation to protect the confidentiality of
some communications, executive privilege will be asserted only in the most compelling some communications, executive privilege will be asserted only in the most compelling
circumstances, and only after careful review demonstrates that assertion of the privilege is circumstances, and only after careful review demonstrates that assertion of the privilege is
necessary. Historically, good faith negotiations between Congress and the executive branch has necessary. Historically, good faith negotiations between Congress and the executive branch has
minimized the need for invoking executive privilege, and this tradition of accommodation should minimized the need for invoking executive privilege, and this tradition of accommodation should
continue as the primary means of resolving conflicts between the Branches. To ensure that every continue as the primary means of resolving conflicts between the Branches. To ensure that every
reasonable accommodation is made to the needs of Congress, executive privilege shall not be reasonable accommodation is made to the needs of Congress, executive privilege shall not be
invoked without specific Presidential authorization.invoked without specific Presidential authorization.
proper to preserve the confidentiality of national security secrets, deliberative communications proper to preserve the confidentiality of national security secrets, deliberative communications
that form a part of the decision-making process, or other information important to the discharge that form a part of the decision-making process, or other information important to the discharge
of the Executive Branchof the Executive Branch
privilege should not thoughtlessly be waived. However, to ensure that this Administration acts privilege should not thoughtlessly be waived. However, to ensure that this Administration acts
responsibly and consistently in the exercise of its duties, with due regard for the responsibilities responsibly and consistently in the exercise of its duties, with due regard for the responsibilities
and prerogatives of Congress, the following procedures shall be followed whenever and prerogatives of Congress, the following procedures shall be followed whenever
Congressional requests for information raise concerns regarding the confidentiality of the Congressional requests for information raise concerns regarding the confidentiality of the
information sought:information sought:
privilege. A privilege. A
requested might significantly impair the national security (including the conduct of foreign requested might significantly impair the national security (including the conduct of foreign
relations), the deliberative processes of the Executive Branch or other aspects of the relations), the deliberative processes of the Executive Branch or other aspects of the
performance of the Executive Branchperformance of the Executive Branch
information raises a substantial question of executive privilege, he shall promptly notify and information raises a substantial question of executive privilege, he shall promptly notify and
consult with the Attorney General through the Assistant Attorney General for the Office of consult with the Attorney General through the Assistant Attorney General for the Office of
Legal Counsel, and shall also promptly notify and consult with the Counsel to the President. If Legal Counsel, and shall also promptly notify and consult with the Counsel to the President. If
the information requested of a department or agency derives in whole or in part or from the information requested of a department or agency derives in whole or in part or from
information received from another department or agency, the latter entity shall also be information received from another department or agency, the latter entity shall also be
consulted as to whether disclosure of the information raises a substantial question of executive consulted as to whether disclosure of the information raises a substantial question of executive
privilege.privilege.
requested information.requested information.
presented to the President by the Counsel to the President, who will advise the Department presented to the President by the Counsel to the President, who will advise the Department
Head and the Attorney General of the PresidentHead and the Attorney General of the President
shall expressly indicate that the purpose of this request is to protect the privilege pending a shall expressly indicate that the purpose of this request is to protect the privilege pending a
Presidential decision, claim of privilege.Presidential decision, claim of privilege.
specific approval of the President.specific approval of the President.
General, through the Assistant Attorney General for the Office of Legal Counsel, and to the General, through the Assistant Attorney General for the Office of Legal Counsel, and to the
Counsel to the President.Counsel to the President.
Ronald Reagan
THE WHITE HOUSE
September 28, 1994
MEMORANDUM FOR ALL EXECUTIVE DEPARTMENT AND AGENCY GENERAL
COUNSELS FROM: LLOYD N. CUTLER, SPECIAL COUNSEL TO THE PRESIDENT
SUBJECT: Congressional Requests to Departments and Agencies for Documents Protected
by Executive Privilege
fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.
While this Administration, like its predecessors, has an obligation to protect the confidentiality of While this Administration, like its predecessors, has an obligation to protect the confidentiality of
core communications, executive privilege will be asserted only after careful review demonstrates core communications, executive privilege will be asserted only after careful review demonstrates
that assertion of the privilege is necessary to protect Executive Branch prerogatives.that assertion of the privilege is necessary to protect Executive Branch prerogatives.
House, including its policy councils, as well as communications between the White House and House, including its policy councils, as well as communications between the White House and
executive departments and agencies. Executive privilege applies to written and oral executive departments and agencies. Executive privilege applies to written and oral
communications between and among the White House, its policy councils and Executive Branch communications between and among the White House, its policy councils and Executive Branch
agencies, as well as to documents that describe or prepares for such communications (e.g.agencies, as well as to documents that describe or prepares for such communications (e.g.
circumstances involving communications relating to investigations of personal wrongdoing by circumstances involving communications relating to investigations of personal wrongdoing by
government officials, it is our practice not to assert executive privilege, either, in judicial government officials, it is our practice not to assert executive privilege, either, in judicial
proceedings or in congressional investigations and hearings. Executive privilege must always be proceedings or in congressional investigations and hearings. Executive privilege must always be
weighed against other competing governmental interests, including the judicial need to obtain weighed against other competing governmental interests, including the judicial need to obtain
relevant evidence, especially in criminal proceedings, and the congressional need to make factual relevant evidence, especially in criminal proceedings, and the congressional need to make factual
findings for legislative and oversight purposes.findings for legislative and oversight purposes.
privilege is asserted against a congressional request for documents, the courts usually decline to privilege is asserted against a congressional request for documents, the courts usually decline to
intervene until after the other two branches have exhausted the possibility of working out a intervene until after the other two branches have exhausted the possibility of working out a
can, without unduly interfering with the Presidentcan, without unduly interfering with the President
with his principal advisors.with his principal advisors.
the need for invoking executive privilege.the need for invoking executive privilege.
essential that all requests to departments and agencies for information of the type described above essential that all requests to departments and agencies for information of the type described above
be referred to the White House Counsel before any information is furnished. Departments and be referred to the White House Counsel before any information is furnished. Departments and
agencies receiving such request should therefore follow the procedures set forth below, designed agencies receiving such request should therefore follow the procedures set forth below, designed
to ensure that this Administration acts responsibly and consistently with respect to executive to ensure that this Administration acts responsibly and consistently with respect to executive
privilege issues, with due regard for the responsibilities and prerogatives of Congress:privilege issues, with due regard for the responsibilities and prerogatives of Congress:
in a department or agency, that contains the deliberations of, or advice to or from, the White in a department or agency, that contains the deliberations of, or advice to or from, the White
House, should be presumptively treated as protected by executive privilege. This is so House, should be presumptively treated as protected by executive privilege. This is so
regardless of the documentregardless of the document
White House or in a department or agency.White House or in a department or agency.
notify the White House Counselnotify the White House Counsel
to the White House Counselto the White House Counsel
(and, where appropriate, the DOJ), will discuss the request with appropriate congressional (and, where appropriate, the DOJ), will discuss the request with appropriate congressional
representatives to determine whether a mutually satisfactory recommendation is available.representatives to determine whether a mutually satisfactory recommendation is available.
release of the document would pass a substantial question of executive privilege, the Counsel release of the document would pass a substantial question of executive privilege, the Counsel
to the President will consult with the DOJ and other affected agencies to determine whether to the President will consult with the DOJ and other affected agencies to determine whether
to recommend that the President invoke the privilege.to recommend that the President invoke the privilege.
and maximize the opportunity for reaching mutually satisfactory accommodations with Congress. and maximize the opportunity for reaching mutually satisfactory accommodations with Congress.
We will of course try to cooperate with reasonable congressional requests for information in ways We will of course try to cooperate with reasonable congressional requests for information in ways
that preserve the Presidentthat preserve the President
heads of the executive departments and agencies.
Over time, authors of this report have included current and former CRS attorneys and analysts Alissa M. Dolan, William T. Egar, Louis Fisher, Kathryn A. Francis, Rick Greenwood, L. Elaine Halchin, T. J. Halstead, Frederick M. Kaiser, Walter Oleszek, Mort Rosenberg, Wendy Ginsberg, and Todd B. Tatelman.
Footnotes
U.S. Congress, Joint Committee on the Organization of Congress, Organization of Congress: Final Report, committee print, 103rd Cong., 1st sess., December 1993, S.Rept. 103-215; H.Rept. 103-413 (GPO, 1993), p. 150. CRS has used an expanded version of this definition: "Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation." See, for example, CRS Report 97-936, Congressional Oversight, by L. Elaine Halchin and Frederick M. Kaiser (available to congressional clients on request).
See "Statutory Oversight Enablers" section below.
See Project on Government Oversight, The Art of Congressional Oversight (Project on Government Oversight, 2015), https://docs.pogo.org/publication/2015/POGO_The-Art-of-Congressional-Oversight-Handbook.pdf.
See CRS Report 97-936, Congressional Oversight, by L. Elaine Halchin and Frederick M. Kaiser (available to congressional clients on request).
60 Stat. 832, §136.
Joseph P. Harris, Congressional Control of Administration (Anchor Books, 1964), p. 9.
See, for example, Jennifer L. Selin and Grace Moore, "Keeping Tabs on the Executive," Presidential Studies Quarterly, vol. 53, no. 2 (June 2023), pp. 186-208.
Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight (Brookings Institution, 1990), p. 218.
Mathew D. McCubbins and Thomas Schwartz, "Congressional Oversight Overlooked: Police Patrols and Fire Alarms," American Journal of Political Science, vol. 28, no. 1 (February 1984), pp. 165-179.
McCubbins and Schwartz, "Congressional Oversight Overlooked," p. 166.
McCubbins and Schwartz, "Congressional Oversight Overlooked," p. 166.
See CNN, "VA Hospital Investigation," https://www.cnn.com/specials/us/va-hospitals.
See Department of Veterans Affairs Office of Inspector General, Veterans Health Administration: Review of Alleged Patient Deaths, Patient Wait Times, and Scheduling Practices at the Phoenix VA Health Care System, 14-02603-267, August 26, 2014.
See CRS Report R43704, Veterans Access, Choice, and Accountability Act of 2014 (H.R. 3230; P.L. 113-146), by Sidath Viranga Panangala et al.
See, for example, letter from Sen. Charles Grassley to President Donald Trump, June 7, 2017, https://www.judiciary.senate.gov/imo/media/doc/2017-06-07%20CEG%20to%20DJT%20(oversight%20requests).pdf.
Louis Fisher, The Politics of Executive Privilege (Carolina Academic Press, 2004), pp. 10-11; and Richard H. Johnston et al., eds., Thomas Jefferson, The Writings of Thomas Jefferson, vol. 1 (Thomas Jefferson Memorial Association, 1903), pp. 303-305.
Woodrow Wilson, Congressional Government (Houghton Mifflin, 1885), p. 303. More recently, Professor Josh Chafetz, a scholar of Congress and its role in the federal government in the 21st century, has referred to this function as "congressional overspeech." Josh Chafetz, "Congressional Overspeech," Fordham Law Review, vol. 89 (2020), p. 596.
U.S. Congress, House Committee on Rules, Congressional Oversight: A "How-To" Series of Workshops, committee print, 106th Cong., 2nd sess., 2000, 63-104, p. 10.
See Arthur M. Schlesinger Jr., The Imperial Presidency (Houghton Mifflin, 1973); Andrew Rudalevige, The New Imperial Presidency: Renewing Presidential Power After Watergate (University of Michigan Press, 2005); Louis Fisher, Presidential War Power, 3rd ed. (University of Kansas Press, 2013); and Saikrishna B. Prakash, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers (Belknap Press, 2020).
Sen. Sam J. Ervin Jr., "Introduction," in James Hamilton, The Power to Probe (Random House, 1976), p. xiii.
GAO, High-Risk Series: Heightened Attention Could Save Billions More and Improve Government Efficiency and Effectiveness, GAO-25-107743, February 25, 2025, https://www.gao.gov/products/gao-25-107743; and U.S. Congress, House Committee on Oversight and Government Reform, The Government Accountability Office's 2025 High Risk List, 119th Cong., 1st sess., February 25, 2025, https://oversight.house.gov/hearing/the-government-accountability-offices-2025-high-risk-list/.
Arthur Schlesinger Jr. and Roger Burns, eds., Congress Investigates: A Documented History, 1792-1974, vol. 1 (Chelsea House, 1975), p. xiii.
354 U.S. 178 (1957).
U.S. Const. art. I, §9, cl. 7.
U.S. Const. art. I, §9; see also U.S. Const. art. II, §2, cl. 2.
U.S. Const. art. I, §8.
U.S. Const. art. I, §8, cl. 18.
See CRS Report R45442, Congress's Authority to Influence and Control Executive Branch Agencies, by Todd Garvey and Sean M. Stiff.
See U.S. Const. art. II, §2, cl. 2.
See U.S. Const. art. II, §4.
For a detailed discussion, including specific examples of relevant statutes, see "Statutory Oversight Enablers" below.
P.L. 79-601, 60 Stat. 812 (1946).
The rules of the House of Representatives are available at https://rules.house.gov/sites/evo-subsites/rules.house.gov/files/documents/houserules119thupdated.pdf.
The rules of the Senate are available at https://www.rules.senate.gov/rules-of-the-senate.
For more information, see Senate Committee on Homeland Security and Governmental Affairs, "Permanent Subcommittee on Investigations Historical Background," September 11, 2025, https://www.hsgac.senate.gov/wp-content/uploads/imo/media/doc/PSI%20Historical%20Background%20(for%20website)%20Jan%202015%20update.pdf.
See CRS Report RL33209, Casework in a Congressional Office, by R. Eric Petersen and Sarah J. Eckman.
See "Individual Member Authority to Conduct Oversight and Investigations" below.
U.S. Congress, House Select Committee on Committees, Committee Reform Amendments of 1974 Part 2, Report of the Select Committee on Committees U.S. House of Representatives to Accompany H. Res. 988 Together with Supplemental Views, 93rd Cong., 2nd sess., March 21, 1974 (GPO, 1974), p. 68.
On House rules governing committee jurisdiction and referral, see CRS Report R46251, Committee Jurisdiction and Referral in the House, by Mark J. Oleszek. Jurisdiction and referral in the Senate is the subject of CRS Report R46815, Committee Jurisdiction and Referral in the Senate, by Mark J. Oleszek.
House Rule X(2)(d)(4).
See, for instance, U.S. Congress, Committee on Oversight and Reform, Authorization and Oversight Plan for All House Committees, 117th Cong., 1st sess., April 2021, H.Rept. 117-17 (GPO, 2021).
For such a guide for investigative hearings, see Morton Rosenberg, "When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry," Constitution Project, 2017, pp. 33-38, https://docs.pogo.org/report/2017/POGO_TCP_When_Congress_Comes_Calling.pdf. See also Project on Government Oversight, The Art of Congressional Oversight.
Political scientist Morris Ogul identifies seven "opportunity factors" that impact the likelihood of oversight. In Ogul's discussion those factors are legal authority to conduct oversight, staff resources, the subject matter at issue, committee structure, status of the interested Members on the relevant committee, relations with the executive branch, and the priorities of Members. Morris S. Ogul, Congress Oversees the Bureaucracy (University of Pittsburgh Press, 1976), pp. 11-22.
See "Investigative Oversight" below.
See, for example, U.S. Congress, House Select Committee on the Modernization of Congress, Final Report, 116th Cong., 2nd sess., October 2020, pp. 98-127, https://www.govinfo.gov/content/pkg/GPO-CRPT-116hrpt562/pdf/GPO-CRPT-116hrpt562.pdf. Beginning in the 118th Congress, the Modernization Committee was succeeded by the Subcommittee on Modernization and Innovation of the Committee on House Administration.
U.S. Congress, Senate Select Committee on Presidential Campaign Activities, The Final Report of the Select Committee on Presidential Campaign Activities, committee print, 93rd Cong., 2nd sess., June 1974, S.Rept. 93-981 (GPO, 1974); and James Hamilton, The Power to Probe (Random House, 1976), pp. 23-26.
For an extended discussion of how Congress can obtain information, see "Oversight Through Other Congressional Activities" below.
See, for example, CRS Report R46061, Voluntary Testimony by Executive Branch Officials: An Introduction, by Ben Wilhelm.
See U.S. Congress, House Committee on Rules, Congressional Oversight: A "How-To" Series of Workshops, committee print, 106th Cong., 2nd sess., 2000, 63-104, pp. 11-12 (remarks by Lee Hamilton).
See generally McCubbins and Schwartz, "Congressional Oversight Overlooked."
Lowande, Kenneth and Mark A. Weiss, "The Politics of Predicting the Future" (unpublished working paper, July 12, 2024).
One example of such legislation is the GPRA Modernization Act of 2010 (P.L. 111-352) which, among other things, updated the system for Congress and the executive branch to identify and consider the elimination of reporting requirements that are no longer useful. See CRS Report R42490, Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA Modernization Act of 2010 (GPRAMA), by Clinton T. Brass.
For a general overview of the budget process, see CRS Report 98-721, Introduction to the Federal Budget Process, coordinated by James V. Saturno; and CRS In Focus IF11032, Budgetary Decisionmaking in Congress, by Megan S. Lynch. CRS also reports regularly on legislative activity on the budget and appropriations as well as actions that affect the budget process itself. See, for example, CRS Report R44874, The Budget Control Act: Frequently Asked Questions, by Grant A. Driessen and Megan S. Lynch; and CRS Report R47384, Changes to House Rules Affecting the Congressional Budget Process Included in H.Res. 5 (118th Congress), by James V. Saturno and Megan S. Lynch.
P.L. 93-344, 88 Stat. 297, codified at 2 U.S.C. §§607-688.
See, for example, CRS Report R45941, The Annual Sequester of Mandatory Spending through FY2029, by Charles S. Konigsberg; and CRS Insight IN11148, The Bipartisan Budget Act of 2019: Changes to the BCA and Debt Limit, by Grant A. Driessen and Megan S. Lynch.
See CRS Report R46497, Authorizations and the Appropriations Process, by James V. Saturno.
See CRS Report R46107, FY2020 National Defense Authorization Act: Selected Military Personnel Issues, coordinated by Bryce H. P. Mendez.
U.S. Const. art. I, §9, cl. 17. For a more detailed discussion of Congress's appropriations power, see CRS Report R46417, Congress's Power Over Appropriations: Constitutional and Statutory Provisions, by Sean M. Stiff.
See, for example, CRS Report R46061, Voluntary Testimony by Executive Branch Officials: An Introduction, by Ben Wilhelm.
The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act for FY2022.
P.L. 117-103, Division A, §710.
U.S. Congress, House Conference Committee, Making Further Continuing Appropriations for the Department of Homeland Security for Fiscal Year 2019, And for Other Purposes, Conference Report to Accompany H.J. Res. 31, 116th Cong., 1st sess., February 13, 2019, H.Rept. 116-9 (GPO, 2019), p. 707.
P.L. 95-521, 92 Stat. 1824, codified at 5 U.S.C. App. §§101 et seq.
U.S. Const. art. II, §2, cl. 2 (emphasis added).
U.S. Const. art. II, §2, cl. 3. For more information on recess appointments, see CRS Report R44997, The Vacancies Act: A Legal Overview, by Valerie C. Brannon.
5 U.S.C. §§3345 et seq. For more information on the Vacancies Act, see CRS Report RS21412, Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions, by Henry B. Hogue.
U.S. Const. art. II, §4. See CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd Garvey.
U.S. Const. art. II, §2, cl. 5. See CRS Report R45769, The Impeachment Process in the House of Representatives, by Elizabeth Rybicki and Michael Greene.
U.S. Const. art. II, §3, cl. 7. See CRS Report R46185, The Impeachment Process in the Senate, by Elizabeth Rybicki and Michael Greene.
While the Constitution does not speak to the vote threshold necessary for disqualification, this has been the practice of the Senate across history. See CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd Garvey.
See CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd Garvey. In addition to the 21 instances identified in this report from 1789 to 2023, Department of Homeland Security Secretary Alejandro Mayorkas was impeached in February 2024. See H.Res. 863 (119th Congress).
See CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd Garvey.
For example, the House of Representatives impeached President Clinton on December 19, 1998, near the conclusion of the 105th Congress. Shortly after the 106th Congress convened on January 3, 1999, the Senate conducted a trial. See CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd Garvey.
U.S. Const. art. II, §4.
CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd Garvey.
U.S. Const. art. II, §4.
This report is not intended to address all the legal issues that committees, Members, and staff may encounter when engaged in investigative activities. Congressional offices with legal questions on Congress's investigatory powers may contact CRS legislative attorneys.
See Barenblatt v. United States, 360 U.S. 109, 111 (1959) ("The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate.... ").
13 R. Chandler, History & Proceedings of the House of Commons 172 (1743); Ernest J. Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 34 (1928) (noting that Parliament viewed the subpoena power as "too serious a matter for general delegation").
James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 161–62 (1926).
Id. at 163–64.
Id. at 165–68 (highlighting examples of colonial and state legislatures engaging in investigations). While English Parliamentary practice often informs the powers of Congress, it is clear that the usefulness of parliamentary precedents in defining Congress's investigatory powers is somewhat limited due to significant distinctions between the two legislative bodies. As the Supreme Court has repeatedly suggested, Parliament's investigatory and contempt powers were derived from the bodies' authority to exercise a "blend[]" of both legislative and judicial powers. Marshall v. Gordon, 243 U.S. 521, 533 (1917) (concluding that the English contempt power "rested upon an assumed blending of legislative and judicial authority possessed by the Parliament"). Congress, under the separation of powers doctrine, exercises no judicial power. Kilbourn v. Thompson, 103 U.S. 168, 192 (1880) (suggesting that "no judicial power is vested in the Congress"). Thus, unlike Parliament, any authority to investigate and subsequently enforce its orders must rest solely on legislative authority provided to the body by the Constitution.
See e.g., 2 Max Farrand, The Records of the Federal Convention of 1787, at 206 (1937) (remarks of George Mason) (Members of Congress "are not only Legislators but they possess inquisitorial powers. They must meet frequently to inspect the Conduct of the public offices"); 3 James Wilson, The Works of the Honourable James Wilson 219 (1804) (noting the traditional power of legislators to act as "grand inquisitors of the realm").
See 2 Farrand, supra note 80, at 340; Josh Chafetz, Congress's Constitution: Legislative Authority and the Separation of Powers 171 (2017).
Landis, supra note 77, at 169–70.
Id. at 169.
Hannah v. Larche, 363 U.S. 420, 444 (1960) ("The investigative function of [legislative] committees is as old as the Republic."); Eberling, supra note 76, at 33.
2 Annals of Cong. 1514 (1790); David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801, at 20 (1997) ("Thus, within a year of its first meeting, in the face of an explicit constitutional challenge, the House of Representatives flatly asserted a broad power to investigate the conduct of a former executive.... ").
Telford Taylor, Grand Inquest: The Story of Congressional Investigations 17–19 (1974).
See 3 Annals of Cong. 490–94 (1792).
Taylor, supra note 86, at 22.
Id. at 23–24.
Act of May 3, 1798, ch. 36, 1 Stat. 554.
Id. The power to administer oaths was expanded to all standing committee chairs in 1817. Act of Feb. 8, 1817, ch. 10, 3 Stat. 345. See also McGrain v. Daugherty, 273 U.S. 135, 167 (1927).
See Watkins v. United States, 354 U.S. 178, 200 n.33 (1957) (noting that Congress has "assiduously" performed oversight "[f]rom the earliest times in its history").
Id. at 187; Woodrow Wilson, Congressional Government 303 (15th ed. 1913) (asserting that the "informing function of Congress should be preferred even to its legislative function"). See also J. William Fulbright, Congressional Investigations: Significance for the Legislative Process, 18 U. Chi. L. Rev. 440, 441 (1951) (describing the power of investigation as "perhaps the most necessary of all the powers underlying the legislative function").
Watkins, 354 U.S. at 187 ("The power of the Congress to conduct investigations is inherent in the legislative process.").
Id.; Watkins, 354 U.S. at 197 (concluding that the investigative power is "justified solely as an adjunct to the legislative process"). Although the Supreme Court has at times referred to the investigative power as an "inherent" power, id. at 187, it is perhaps more accurate to refer to it as an implied power. While an inherent power may not be tethered to a textual grant of authority, an implied power is derived by implication from an enumerated power. See Scott C. Idleman, The Emergence of Jurisdictional Resequencing in the Federal Courts, 87 Cornell L. Rev. 1, 42–43 (2001).
Quinn v. United States, 349 U.S. 155, 160-61 (1955) ("Without the power to investigate—including of course the authority to compel testimony, either through its own processes or through judicial trial—Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.") (citations omitted).
McGrain, 273 U.S. at 175 ("A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it."). Congress's oversight function is subject to a variety of legal limitations. See Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504 n.15 (1975) ("Although the power to investigate is necessarily broad it is not unlimited.... We have made it clear [] that Congress is not invested with a 'general' power to inquire into private affairs.' The subject of any inquiry always must be one 'on which legislation could be had.'") (citations omitted); Trump v. Mazars USA, LLP, 591 U.S. 848, 862-63 (2020) (noting that the power to conduct investigations is "subject to several limitations" including those arising from "constitutional rights").
Eastland, 421 U.S. at 504, n. 15 (quoting Barenblatt v. United States, 360 U.S. 109, 111 (1959)).
Watkins v. United States, 354 U.S. 178, 187 (1957).
Id.
Id.
See McGrain, 273 U.S. at 175 (noting that the "power of inquiry" was "intended to be effectively exercised, and therefore to carry with them such auxiliary powers as are necessary and appropriate to that end.").
Mazars, 591 U.S. at 862.
Id.
Id. (citing McGrain, 273 U.S at 161, 174-75).
The legislative purpose test generally governs the scope of the investigative power granted (implicitly) to each house of Congress by the Constitution. That grant of power is then limited by other constitutional constraints. Id. at 2031-32. For a discussion of other constitutional limitations on congressional investigations see infra "Constitutional Limitations."
Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).
Watkins v. United States, 354 U.S. 178, 187 (1957).
Barenblatt v. United States, 360 U.S. 109, 111 (1959).
Id.
Watkins, 354 U.S. at 187.
Id. at 200 n.33; In re United States Senate Select Comm. on Presidential Campaign Activities, 361 F. Supp. 1270, 1281 (D.D.C. 1973) ("It is apparent as well that a committee's legislative purpose may legitimately include the publication of information."). But see Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979) (holding that with respect to Speech or Debate Clause immunity that "the transmittal of [] information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process"); Benford v. Am. Broad. Cos., 502 F. Supp. 1148, 1154 (D. Md. 1980) ("The Supreme Court, however, has never advocated a broad reading of the "informing function."). Justice Brennan voiced perhaps the fullest explanation of Congress's "informing function" in his dissenting opinion in Gravel v. United States. 408 U.S. 606, 638-64 (1972) (Brennan, J. dissenting). Brennan's position was not adopted by the majority opinion.
McGrain v. Daugherty, 273 U.S. 135, 178 (1927) (holding that "the only legitimate object the Senate could have in ordering the investigation was to aid it in legislating; and we think the subject-matter was such that the presumption should be indulged that this was the real object"); id. ("We are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed.... ") (citation omitted).
Id. at 150-54.
Ex parte Daugherty, 299 F. 620, 639-40 (S.D. Ohio 1924).
McGrain, 273 U.S. at 177.
Id. at 178.
Barenblatt v. United States, 360 U.S. 109, 132 (1959). Judicial attempts to look inside the minds of Members "misperceives the [c]ourt's role, which is not to determine the validity of the legislative purpose by 'testing the motives of committee members' based on public statements." See Senate Permanent Subcomm. On Investigations v. Ferrer, 199 F. Supp. 3d 125, 137 (D.D.C. 2016).
Watkins v. United States, 354 U.S. 178, 200 (1957) (concluding that courts should not "test[] the motives of committee members" when evaluating an investigation's purpose).
In re Chapman, 166 U.S. 661, 670 (1897) (noting that "it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded").
Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 509 (1975).
103 U.S. 168, 190 (1881). In that case the Court invalidated the House's imprisonment of a member of the public during an investigation into the collapse of a private real estate pool. Taking a restrictive view of Congress's investigation authorities, the opinion also questioned the House's authority to punish witnesses for noncompliance with investigative requests unless the inquiry was connected to either impeachment or the House's power to judge the election and qualification of its Members. Id.
United States v. Rumely, 345 U.S. 41, 46 (1953); Hutcheson v. United States, 369 U.S. 599, 613 n.16 (1962).
The Court also appears to have distinguished investigations into private conduct of the President. See infra "Legislative Purpose and Investigations Involving the President."
Rumely, 345 U.S. at 46.
Watkins v. United States, 354 U.S. 178, 187 (1957).
Id. at 200.
Id. at 198, 200.
360 U.S. 109, 112 (1959).
Watkins, 354 U.S. at 187.
Trump v. Mazars USA, LLP, 591 U.S. 848, 863 (2020).
Congress's impeachment function, which has at time been characterized as possessing "judicial" features, arguably represents an exception to this general prohibition. See CRS Report R45983, Congressional Access to Information in an Impeachment Investigation, by Todd Garvey at 6-11.
Tenney v. Brandhove, 341 U.S. 367, 378 (1951).
The challenged subpoenas were issued as part of different ongoing committee investigations: The House Committee on Oversight and Reform sought information in connection to its review of federal ethics laws, the House Financial Services Committee sought information in connection to its investigation into abuses of the financial system, and the House Permanent Select Committee on Intelligence sought information in connection to its investigation into foreign interference in U.S. elections. See generally CRS Legal Sidebar LSB10517, Trump v. Mazars: Implications for Congressional Oversight, by Todd Garvey.
See CRS Legal Sidebar LSB10301, Legislative Purpose and Adviser Immunity in Congressional Investigations, by Todd Garvey.
Mazars, 591 U.S. at 857-58.
Id. at 853-54; see also United States v. Burr, 25 F. Cas. 30, 192 (C.C. Va. 1807) (No. 14,692d) (noting that the court would not "proceed against the president as against an ordinary individual"). The Mazars opinion also treated a congressional investigation as "different" from a "judicial proceeding." Mazars, 591 U.S. at 854.
Mazars, 591 U.S. at 866.
Id. at 864. ("We disagree that these demanding standards apply here.... We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations."). The Court also rejected the House's proposed approach, which it characterized as failing to "take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President's information." Id. at 866.
Id. at 869.
Id.
Id. at 870.
Id.
Id.
Id.
Id.
Id. at 871.
Id.
Id. It appears that the Mazars test may also apply to cases involving former Presidents in at least a narrow set of "specific circumstances." See Trump v. Mazars USA, LLP, 39 F.4th 774, 787 (D.C. Cir. 2022) ("We do not accept the Committee's invitation to abandon the Supreme Court's Mazars test in the Mazars case itself. Whatever may be the appropriate standard when Congress issues a subpoena to a former President, the subpoena in this case, when issued, sought a sitting President's information. President Trump then brought this challenge while still in office; that same challenge remains pending; and the subpoena remains unchanged in all respects. At least in these specific circumstances, we do not understand that the Mazars test instantly ceased to apply—and a different standard immediately took hold—on the day President Trump left office."). See also Comm. on Ways & Means v. Dep't of Treasury, 45 F.4th 324, 333-34 (D.C. Cir. 2022) ("[I]t is likely law of the circuit that a Congressional request for a sitting President's personal information is evaluated under the heightened Mazars standard regardless of whether the President in question remains in office."); Bragg v. Jordan, 669 F.Supp.3d 257, 270 n.8 (S.D.N.Y. 2023) (describing the argument that Mazars "broadly governs subpoenas 'seeking a current or former president's information'" as "clearly incorrect"). In Trump v. Thompson, a case involving the records of then-former President Trump, a circuit court stated that the separation of powers concerns that animated Mazars "necessarily have less traction when the request is for records from a former administration, since the objecting former President no longer occupies the 'unique position of the President.... '" 20 F.4th 10, 41 (D.C. Cir. 2021). In denying a subsequent application for a stay in that case, the Supreme Court clarified that "[a]ny discussion of the Court of Appeals concerning President Trump's status as a former President must therefore be regarded as nonbinding dicta. Trump v. Thompson, 142 S. Ct. 680 (2022).
It is unclear how Mazars may apply to investigations focused on official conduct and seeking governmental records. See CRS Legal Sidebar LSB10517, Trump v. Mazars: Implications for Congressional Oversight, by Todd Garvey. It could be argued that the standards adopted in Mazars are applicable only when a congressional committee directly targets the personal or private records of a President. Under that interpretation, judicially imposed limits on Congress's authority to obtain official records of the President would be reviewed under the deferential "legislative purpose" standard applied in previous cases (though, even if the subpoena is validly issued under this standard, the President might still invoke applicable privileges to withhold some records). On the other hand, it could be argued that the "special considerations" test set forth in Mazars applies to requests for either personal or official presidential records. Even then, the considerations may apply differently to requests for official records compared to the President's private information.
See supra "The Constitutional Scope of the Investigative Power: Legislative Purpose."
See, e.g., House Rule X(2); House Rule XI(1)(b); House Rule XI(2)(m); Senate Rule XXV; Senate Rule XXVI(1).
House Rule XI(1)(b).
Senate Rule XXVI(1).
2 U.S.C. § 190d(a).
See Watkins v. United States, 354 U.S. 178, 206 (1957) ("Plainly these committees are restricted to the missions delegated to them.... No witness can be compelled to make disclosures on matters outside that area.").
See Yellin v. United States, 374 U.S. 109, 111-12 (1963).
See Tenney v. Brandhove, 341 U.S. 367, 378 (1951) ("The courts should not go beyond the narrow confines of determining that a committee's inquiry may fairly be deemed within its province.").
Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501 (1975).
Judicial review of subpoenas is also quite narrow. See "Limitations on Challenging a Subpoena" infra.
See United States v. Ballin, 144 U.S. 1, 5 (1892) (declaring that the House's rulemaking authority "is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal").
See Watkins, 354 U.S. at 209. Courts have also construed delegations of investigatory powers narrowly when necessary to avoid "passing on serious constitutional questions." Tobin v. United States, 306 F.2d 270, 274-75 (D.C. Cir. 1962).
United States v. Rumely, 345 U.S. 41, 42, 44 (1953); see also Watkins, 354 U.S. at 198, 206 ("Plainly these committees are restricted to the missions delegated to them, i.e., to acquire certain data to be used by the House or the Senate in coping with a problem that falls within its legislative sphere. No witness can be compelled to make disclosures on matters outside that area.").
Watkins, 354 U.S. at 206.
Id.
See House Rule X, 119th Cong. (2025); Senate Rule XXV, 119th Cong. (2025). Jurisdictional authority for "special" investigations may be given to a standing committee, a joint committee of both houses, or a special subcommittee of a standing committee, among other options.
Rumely, 345 U.S. at 42-48.
Id. at 42, 48.
Id. at 44.
Id. at 47.
Id. ("Certainly it does no violence to the phrase 'lobbying activities' to give it a more restricted scope. To give such meaning is not barred by intellectual honesty. So to interpret is in the candid service of avoiding a serious constitutional doubt.").
See Watkins v. United States, 354 U.S. 178, 224 (1957); Tobin v. United States, 306 F.2d 270, 275 (D.C. Cir. 1962) (holding that if Congress had intended a committee to begin an investigation "sure to provoke the serious and difficult constitutional questions ... it would have spelled out this intention in words more explicit than the general terms found in the authorizing resolutions under consideration." But see Barenblatt v. United States, 360 U.S. 109, 121 (1959) (rejecting the avoidance approach adopted in Rumely on the grounds that Congress had placed a clarifying "legislative gloss" on the meaning of the applicable committee rule).
House Rule XI(2) and Senate Rule XXVI(2) require that committees adopt written rules of procedure and publish them in the Congressional Record. The failure to publish such rules has resulted in the invalidation of a perjury prosecution. United States v. Reinecke, 524 F.2d 435 (D.C. Cir. 1975) (holding that failure to publish committee rule setting one Senator as a quorum for taking hearing testimony was a sufficient ground to reverse a perjury conviction).
Yellin v. United States, 374 U.S. 109, 111-12 (1963).
Id. at 113-14.
Id. at 114. The committee rule provided: "If a majority of the Committee or Subcommittee ... believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an Executive Session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing." Id. at 114-15.
Id. (citing Christoffel v. United States, 338 U.S. 84 (1949)).
Id.
Gojack v. United States, 384 U.S. 702, 703-04 (1966).
Id. at 706.
Id. at 712.
See, e.g., Congress Investigates: A Critical and Documentary History (Roger A. Bruns et al. eds., 2011).
A congressional committee "gathers information through formal investigations, but also obtains information in a number of other ways, including through requests made to relevant Federal agencies, to lobbyists with expertise in a particular field, and to stakeholders." SEC v. Comm. on Ways & Means of the U.S. House of Representatives, 161 F. Supp. 3d 199, 230 (S.D.N.Y. 2015).
House Rule XI(m)(1); Senate Rule XXVI(1).
Many committees leave the swearing of witnesses to the discretion of the chair, while others require that all witnesses be sworn. Compare House Comm. on Agriculture, Rule VII(b) ("The Chairman of the Committee, or any member of the Committee designated by the Chairman, may administer oaths to any witnesses.), with Senate Special Comm. on Aging, Rule II(4) ("All witnesses who testify to matters of fact shall be sworn unless the Committee waives the oath.").
As a general matter, House Rule XI and Senate Rule XXVI govern committee hearing procedures.
House Rule XI(2)(h)(2).
Senate Rule XXVI(7)(a)(2).
See, e.g., House Comm. on the Judiciary Rule II; Senate Comm. on Appropriations Rule II(3).
House Rule XI(2)(k)(5); Senate Rule XXVI(5)(b).
House Rule XI(2)(k)(5).
See Watkins v. United States, 354 U.S. 178, 209 (1957) ("There are several sources that can outline the 'question under inquiry' in such a way that the rules against vagueness are satisfied. The authorizing resolution, the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves, might sometimes make the topic clear.").
See, e.g., House Comm. on Foreign Affairs Rule 6; Senate Comm. on Agriculture, Nutrition, and Forestry Rule 3.
See Trump v. Mazars USA, LLP, 591 U.S. 848, 863 (2020) (noting that "recipients of legislative subpoenas retain their constitutional rights throughout the course of an investigation"). For a discussion of constitutional and other limitations on congressional investigations, see infra "Constitutional Limitations."
See Quinn v. United States, 349 U.S. 155, 161-62 (1995); Emspak v. United States, 349 U.S. 190, 197-98 (1955); Bart v. United States, 349 U.S. 219, 221, 223 (1955).
See United States v. Fort, 443 F.2d 670, 678 (D.C. Cir. 1970) ("[W]hich constitutional rights are applicable depends on the nature and consequences of the governmental action.").
Id.
Id. at 679.
Hannah v. Larche, 363 U.S. 420, 444-45 (1960) ("The procedures adopted by legislative investigating committees have varied over the course of years. Yet, the history of these committees clearly demonstrates that only infrequently have witnesses appearing before congressional committees been afforded the procedural rights normally associated with an adjudicative proceeding. In the vast majority of instances, congressional committees have not given witnesses detailed notice or an opportunity to confront, cross-examine and call other witnesses."). These rights are, however, often afforded in impeachment investigations. See CRS Report R45983, Congressional Access to Information in an Impeachment Investigation, by Todd Garvey at 15.
See generally Andrew McCanse Wright, Congressional Due Process, 85 Miss. L.J. 401, 434-36 (2016).
House Rule XI(2)(k)(3).
See, e.g., Senate Perm. Subcomm. On Investigations of the Comm. on Homeland Sec. and Gov't Affairs Rule 8 (providing that subcommittee rules should not be "construed as authorizing counsel to coach the witness or answer for the witness").
See Hearing on H. Res. 836 Before the H. Comm. on Rules, 110th Cong. 23-24 (2007) (statement of T.J. Halstead) (generally describing a deposition as a "discovery device commonly used in litigation that typically involves the oral questioning of a witness (the deponent) by an attorney for one party, outside the courtroom, and out of public view. A deposition is taken following notice to the deponent, and is sometimes accompanied by a subpoena. The deposition testimony is given under oath or affirmation and a transcript is made an authenticated.").
House Rule X(4)(c)(3).
See H. Res. 5 §2(t) 119th Cong. (2025) ("During the One Hundred Nineteenth Congress, the chair of a standing committee (other than the Committee on Rules), and the chair of the Permanent Select Committee on Intelligence, upon consultation with the ranking minority member of such committee, may order the taking of depositions, including pursuant to subpoena, by a member or counsel of such committee.").
See U.S. Congress, Senate, Authority and Rules of Senate Committees, 2023-2024, 118th Cong., 1st sess., S. Doc. No. 118-4 (2019).
See 171 Cong. Rec. H146 (daily ed. Jan. 14, 2025) (119th Congress Regulations for Use of Deposition Authority).
Id.
The false statement provision was amended in 1996 to apply to statements made during "any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate." 18 U.S.C. § 1001.
171 Cong. Rec. H146 (daily ed. Jan. 14, 2025) ("Witnesses may be accompanied at a deposition by two designated personal, nongovernmental attorneys to advise them of their rights."); H. Comm. on Oversight and Government Reform Rule 15(e) ("Witnesses may be accompanied at a deposition by counsel to advise them of their rights.… Observers or counsel for other persons, or for agencies under investigation, may not attend.").
Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees, 43 Op. O.L.C. 1, 2 (2019).
Id. at 3. The President's position derives from the separation of powers and the executive branch's need to protect privileged information rather than from the witness's Sixth Amendment's right to effective assistance of counsel.
H. Rep. No. 116-125, at 33 (2019).
Id. The House of Representatives filed at least two cases to enforce committee subpoenas that focused on the issue of exclusion of agency counsel from congressional depositions. Both cases were voluntarily dismissed before reaching the merits. See Ryan Tarinelli, House Dismisses Lawsuit Over Judiciary Committee Subpoenas, Roll Call (May 28, 2025).
See, e.g., Todd David Peterson, Contempt of Congress v. Executive Privilege, 14 U. Pa. J. Const. L. 77, 105 (2011) (noting that "Congress routinely obtains massive amounts of information from the executive branch on a daily basis," often through "informal requests from congressional staffers for information from a particular staffer.")
The D.C. Circuit has suggested that Congress and the executive branch have an "implicit constitutional mandate" to accommodate each other's needs during a conflict. United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977) ("Each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. This aspect of our constitutional scheme avoids the mischief of polarization of disputes."). See also Memorandum from Ronald Reagan, President of the United States, to the Heads of Executive Departments and Agencies on Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982), reprinted in H. Rep. No. 99-435, pt. 2, at 1106 (1986) (noting that the "tradition of accommodation should continue as the primary means of resolving conflicts between the Branches.").
McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
See United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (noting that the Framers relied "on the expectation that where conflicts in scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning of our governmental system").
Id. Each standing committee has been delegated subpoena power by House or Senate rule. See House Rule XI(2)(m)(3); Senate Rule XXVI(1).
The Supreme Court has determined that the "[i]ssuance of subpoenas ... has long been held to be a legitimate use by Congress of its power to investigate." Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504 (1975).
McGrain, 273 U.S. at 175; see also Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam); Eastland, 421 U.S. at 504-505 ("Issuance of subpoenas ... has long been held to be a legitimate use by Congress of its power to investigate.").
Watkins v. United States, 354 U.S. 178, 187 (1957).
Id.
Special or select committees may issue subpoenas when specifically delegated that authority by Senate or House resolution. See infra "Specialized Investigations." In the 117th Congress, the House amended Rule XI to clarify the scope of committee subpoena power:
Subpoenas for documents or testimony may be issued to any person or entity, whether governmental, public, or private, within the United States, including, but not limited to, the President, and the Vice President, whether current or former, in a personal or official capacity, as well as the White House, the Office of the President, the Executive Office of the President, and any individual currently or formerly employed in the White House, Office of the President, or Executive Office of the President.
H.Res. 8, 117th Cong. (2021). See House Rule XI(2)(m) (2025).
See "Deposition Authority" supra.
House rules provide that "[t]he power to authorize and issue subpoenas ... may be delegated to the chair of the committee under such rules and under such limitations as the committee may prescribe." House Rule XI(2)(m).
See Senate Committee on Homeland Security and Governmental Affairs, Rule 5 ("The Chair, with notice to the Ranking Minority Member of the Committee, is authorized to subpoena the attendance of witnesses at a hearing or deposition or the production of memoranda, documents, records, or any other materials."); Permanent Subcommittee on Investigations, Rule 2 ("Subpoenas for witnesses, as well as documents and records, may be authorized and issued by the Chair, or any other Member of the Subcommittee designated by the Chair, with notice to the Ranking Minority Member.").
U.S. Const. art. I, §6, cl. 1; Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 503-07 (1975) (holding that the Speech or Debate Clause of the Constitution provides "an absolute bar to judicial interference" with such compulsory process).
The Supreme Court's decision in Trump v. Mazars USA, LLP, 591 U.S. 848 (2020), is an example of this type of lawsuit.
United States v. AT&T Co., 567 F.2d 121, 129 (D.C. Cir. 1977).
Eastland, 421 U.S. at 501; AT&T Co., 567 F.2d at 123-25 (D.C. Cir. 1977).
McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (observing that the "process to enforce" the investigatory power is "essential" to the "legislative function").
See Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing, 48 Admin L. Rev. 109, 114 (1996) (arguing in 1996 that "Congress rarely makes use of its subpoena power" partly because of the "benefits that each branch receives by cooperating with the other"). The D.C. Circuit has suggested that Congress and the executive branch have an "implicit constitutional mandate" to accommodate each other's needs during a conflict. AT&T Co., 567 F.2d at 127 (D.C. Cir. 1977) ("Each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. This aspect of our constitutional scheme avoids the mischief of polarization of disputes.").
CRS Report R45442, Congress's Authority to Influence and Control Executive Branch Agencies, by Todd Garvey (2023) (discussing various tools that Congress may use to compel or incentivize agency compliance with congressional demands).
See Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881, 931 (2014) ("Congress may use legislative authorizations and appropriations as leverage against the Executive Branch to obtain requested information."); Louis Fisher, Congressional Access to Information: Using Legislative Will and Leverage, 52 Duke L.J. 323, 325 (2002) (noting that oversight disputes are often "decided by the persistence of Congress and its willingness to adopt political penalties for executive noncompliance. Congress can win most of the time—if it has the will—because its political tools are formidable.").
2 U.S.C. §§ 192, 194.
Although the criminal contempt statute provides that "it shall be" the U.S. Attorney's "duty ... to bring the matter before the grand jury for its action," the executive branch has asserted discretion in whether to present the matter to the grand jury. See, e.g., Letter from Ronald C. Machen, Jr., U.S. Att'y, U.S. Dep't of Just, to John A. Boehner, Speaker, U.S. House of Representatives (Mar. 31, 2015); Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 102 (1984) [hereinafter Olson Opinion].
See 2 U.S.C. §§ 288b, 288d; 28 U.S.C. § 1365; Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 94 (D.D.C. 2008) ("The Court concludes that the Committee has an implied cause of action derived from Article I to seek a declaratory judgment concerning the exercise of its subpoena power."). See also CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey (2017) (discussing the two predominant subpoena enforcement mechanisms).
Act of Jan. 24, 1857, ch. 19, §1, 11 Stat. 155 (now codified at 2 U.S.C. § 192).
2 U.S.C. § 192. The subpoena that gives rise to the contempt must have been issued for a legislative purpose, be pertinent to the matter under inquiry, and relate to a matter within the House or Senate committee's jurisdiction. See Senate Perm. Subcomm. on Investigations v. Ferrer, 199 F. Supp. 3d 125, 134–38 (D.D.C. 2016).
2 U.S.C. § 194. The DOJ has previously obtained convictions under 2 U.S.C. § 192 against executive branch officials pursuant to plea deals without a vote of the House or Senate. See Prosecution of Contempt of Congress: Hearing Before the Subcomm. on Admin. Law and Gov'tl Relations of the H. Comm. on the Judiciary, 98th Cong. 23-24 (1983).
See House Practice, ch. 17, §2; Wilson v. United States, 369 F.2d 198, 201–02 (D.C. Cir. 1966) ("It has been the consistent legislative course that the Speaker is not under a 'mandatory' duty to certify the report of the committee, but on the contrary that the committee's report is subject to further consideration on the merits by the House involved. When the House is in session the Speaker does not automatically transmit the report of alleged contempt to the United States Attorney. Instead as a matter of routine a member of the committee offers a resolution for the consideration of the House involved.").
2 U.S.C. § 192.
For example, during an investigation into the White House Travel Office, contested documents were turned over to Congress on the day a contempt resolution against the White House counsel was scheduled for a floor vote. See H.R. Rep. No. 104-874, at 47 (1997).
See, e.g., Letter from Carlos Felipe Uriarte, Assistant Att'y Gen., U.S. Dep't of Just., to Mike Johnson, Speaker, U.S. House of Representatives (June 14, 2024); Letter from Ronald C. Machen Jr., U.S. Att'y, U.S. Dep't of Just., to John A. Boehner, Speaker, U.S. House of Representatives (Mar. 31, 2015) (declining to present criminal contempt citation to a grand jury); Olson Opinion, supra note 238, at 102.
See Letter from James M. Cole, Deputy Att'y Gen., to John Boehner, Speaker of the House (June 28, 2012); Olson Opinion, supra note 238, at 102.
See Josh Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev. 1083, 1146 (2009) ("As the president is unlikely to authorize one of his subordinates (the United States Attorney) to file charges against another of his subordinates who was acting according to his orders, it is safe to assume that the executive branch will generally decline to prosecute an executive branch official for criminal contempt of Congress.").
See Press Release, U.S. Dep't of Just., Stephen K. Bannon Indicted for Contempt of Congress (Nov. 12, 2021) (announcing the indictment of an advisor to then-former President Trump following President Biden's decision not to support the former President's privilege assertions in the context of a congressional investigation into the events surrounding the January 6, 2021, attempt by some supporters of the former President to prevent congressional certification of the 2020 presidential election); CRS Legal Sidebar LSB10802, Beyond January 6th: White House Confidentiality and Congressional Investigations, by Todd Garvey (2022). For further discussion, see CRS Legal Sidebar LSB10660, The Bannon Indictment and Prosecution, by Todd Garvey and Michael A. Foster (2021); CRS Legal Sidebar LSB10974, Criminal Contempt of Congress: Frequently Asked Questions, by Todd Garvey (2023).
See Letter from Ronald C. Machen, Jr., U.S. Att'y, U.S. Dep't of Just., to John A. Boehner, Speaker, U.S. House of Representatives (Mar. 31, 2015).
But see Fisher, supra note 236, at 347-59 (describing instances from 1975 to 2000 in which committee action on a criminal contempt citation was effective in obtaining compliance with a congressional subpoena).
See 2 U.S.C. §§ 288b, 288d; 28 U.S.C. § 1365; Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 94 (D.D.C. 2008).
18 U.S.C. §§ 401–402.
See e.g., Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); Comm. on Oversight & Gov't Reform v. Holder, 973 F. Supp. 2d 1 (D.D.C. 2013); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008); Comm. on the Judiciary v. McGahn, 968 F.3d 755, 760–61 (D.C. Cir. 2020). See also CRS Testimony TE10064, Civil Enforcement of Congressional Authorities, by Todd Garvey (2021).
See, e.g., H.R. Res. 706, 112th Cong. (2012) (Holder); H.R. Res. 980, 110th Cong. (2008) (Miers and Bolten); S. Res. 377, 114th Cong. (2016) (Ferrer).
Since the statute's enactment in 1979, the Senate has authorized the Office of Senate Legal Counsel to seek civil enforcement of a subpoena for documents or testimony on various occasions but never against executive branch officials. See CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by Todd Garvey(2017), tbl. A-3 (Floor Votes on Civil Enforcement Resolutions in the Senate, 1980-Present). See also CRS In Focus IF12907, Contempt Actions in the 118th Congress, by Clay Wild (2025) (describing Senate approval of a civil enforcement action against the chief executive officer of Steward Health Care).
H.R. Res. 430, 116th Cong. (2019).
Id. See House Rule II (establishing that the BLAG "speaks for, and articulates the institutional position of, the House in all litigation matters."); 165 Cong. Rec. H30 (daily ed. Jan. 3, 2019) (statement of Rep. McGovern) ("If a Committee determines that one or more of its duly issued subpoenas has not been complied with and that civil enforcement is necessary, the BLAG, pursuant to House Rule II(8)(b), may authorize the House Office of General Counsel to initiate civil litigation on behalf of this Committee to enforce the Committee's subpoena(s) in federal district court."). See also CRS Report R45636, Congressional Participation in Litigation: Article III and Legislative Standing, by Kevin M. Lewis at 43 n.429.
2 U.S.C. §§ 288b, 288d; 28 U.S.C. § 1365.
28 U.S.C. § 1365.
Id. §1365(a) ("This section shall not apply to an action to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened refusal to comply with, any subpoena or order issued to an officer or employee of the executive branch of the Federal Government acting within his or her official capacity, except that this section shall apply if the refusal to comply is based on the assertion of a personal privilege or objection and is not based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of the Federal Government.").
See Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 86-87 (D.D.C. 2008) ("In any event, the fact that §288d may create an independent cause of action for the Senate does not establish that the Senate (or the House) could not proceed under the [Declaratory Judgment Act (DJA)]. Section 288d can simply be viewed as a more specific application of the general relief made available by the DJA.... That conclusion is consistent with statements found in a contemporaneous Senate Report indicating that 'the statute is not intended to be a congressional finding that the federal courts do not now have the authority to hear a civil action to enforce a subpoena against an officer or employee of the federal government.'") (citing S. Rep. No. 95-170, at 91–92).
See H.R. Res. 706, 112th Cong. (2012) (Holder); H.R. Res. 980, 110th Cong. (2008) (Miers and Bolten). See Miers, 558 F. Supp. 2d, at 78–88; Comm. on Oversight & Gov't Reform v. Holder, 973 F. Supp. 2d 1, 3 (D.D.C. 2013).
Comm. on the Judiciary v. McGahn, 951 F.3d 510, 516 (D.C. Cir. 2020).
Comm. on the Judiciary v. McGahn, 968 F.3d 755, 760-61 (D.C. Cir. 2020).
Comm. on the Judiciary v. McGahn, 973 F.3d 121, 123 (D.C. Cir. 2020).
Id. The conference report accompanying the legislation that established the Senate procedure explained that the relevant House committees had not yet considered the proposal for judicial enforcement of House subpoenas. H.R. Rep. No. 95-1756, 95th Cong., at 80 (1978). The Senate had authorized its committees to bring lawsuits for some time before enactment of the 1978 law. See S.Res. 262, 70th Cong. (1928) (providing that "any committee of the Senate is hereby to bring suit ... in any court of competent jurisdiction if the committee is of the opinion that the suit is necessary to the adequate performance of the powers vested in it").
Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. Oct. 15, 2020) (en banc order).
See Agreement Concerning Accommodation, Comm. on the Judiciary v. McGahn, No. 19-5331 (D.C. Cir. May 12, 2021).
Comm. on the Judiciary v. McGahn, No. 19-5331, 2021 U.S. App. LEXIS 20759 (D.C. Cir. July 13, 2021) (en banc order).
Congress first exercised its inherent contempt authority in 1795 when the House detained two private citizens for attempted bribery of Members of the House. 2 Asher C. Hinds, Precedents of the House of Representatives § 1599 (1907) [hereinafter Hinds' Precedents of the House]. The Supreme Court first affirmed Congress's use of the inherent contempt power in the 1821 decision of Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
See, e.g., Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). In 1928, members of a Senate special investigative committee brought suit to obtain documents associated with a disputed Senate election, but the Supreme Court dismissed that claim on jurisdictional grounds due to a lack of Senate authorization for the suit. Reed v. Del. Cty. Comm., 277 U.S. 376, 389 (1928). James Hamilton, The Power to Probe: A Study of Congressional Investigations 197 (1976) (noting that the Senate Select Committee on Presidential Campaign Activities' lawsuit to enforce the subpoena issued to President Nixon was "the first civil action to enforce a congressional subpoena issued to the executive").
Jurney v. MacCracken, 294 U.S. 125, 147–48 (1935) ("No act is so punishable unless it is of a nature to obstruct the performance of the duties of the legislature.").
See Marshall v. Gordon, 243 U.S. 521, 543 (1917) (noting that inherent contempt has been used to "deal with either physical obstruction of the legislative body in the discharge of its duties, or physical assault upon its members for action taken or words spoken in the body, or obstruction of its officers in the performance of their official duties, or the prevention of members from attending so that their duties might be performed, or finally with contumacy in refusing to obey orders to produce documents or give testimony which there was a right to compel").
The procedure followed by the House in the contempt citation that was at issue in Anderson is typical of that employed in the inherent contempt cases. Thomas L. Shriner, Jr., Legislative Contempt and Due Process: The Groppi Cases, 46 Ind. L. J. 480, 491 (1971) ("The House adopted a resolution pursuant to which the Speaker ordered the Sergeant-at-Arms to arrest Anderson and bring him before the bar of the House (to answer the charge). When Anderson appeared, the Speaker informed him why he had been brought before the House and asked if he had any requests for assistance in answering the charge. Anderson stated his requests, and the House granted him counsel, compulsory process for defense witnesses, and a copy, of the accusatory letter. Anderson called his witnesses; the House heard and questioned them and him. It then passed a resolution finding him guilty of contempt and directing the Speaker to reprimand him and then to discharge him from custody. The pattern was thereby established of attachment by the Sergeant-at-Arms; appearance before the bar; provision for specification of charges, identification of the accuser, compulsory process, counsel, and a hearing; determination of guilt; imposition of penalty.").
Id. The subject of a trial for contempt of Congress is not afforded the same procedural protections as a defendant in a criminal trial. See Groppi v. Leslie, 404 U.S. 496, 500–01 (1972) ("The past decisions of this Court strongly indicate that the panoply of procedural rights that are accorded a defendant in a criminal trial has never been thought necessary in legislative contempt proceedings. The customary practice in Congress has been to provide the contemnor with an opportunity to appear before the bar of the House, or before a committee, and give answer to the misconduct charged against him.").
The House has previously adopted resolutions authorizing a select committee to investigate contempt allegations and then report its findings to the House. See 3 Hinds' Precedents of the House, supra note 271, §1630 (citing Cong. Globe, 38th Cong., 2nd Sess., 371 (1865).
See 3 Hinds' Precedents of the House, supra note 271, §§1666, 1669, 1693.
Marshall v. Gordon, 243 U.S. 521, 544 (1917) (noting that the Court had discovered "no single instance where in the exertion of the power to compel testimony restraint was ever made to extend beyond the time when the witness should signify his willingness to testify"). The Court has suggested that the power "does not embrace punishment for contempt as punishment." Id. at 542. But see Jurney v. MacCracken, 294 U.S. 125, 148 (1935) (affirming exercise of contempt power even after the obstruction to the legislative process had been removed).
Watkins v. United States, 354 U.S. 178, 207 n.45 (1957); Anderson, 19 U.S. at 231.
The contempt power is an implied aspect of the legislative power. Marshall, 243 U.S. at 537 (noting that "it was yet explicitly decided that from the power to legislate given by the Constitution to Congress there was to be implied the right of Congress to preserve itself, that is, to deal by way of contempt with direct obstructions to its legislative duties."). As opposed to an inherent power, which may not be tethered to a textual grant of authority, an implied power is derived by implication from an enumerated power. See Scott C. Idleman, The Emergence of Jurisdictional Resequencing in the Federal Courts, 87 Cornell L. Rev. 1, 42–43 (2001).
McGrain v. Daugherty, 273 U.S. 135, 173–74 (1927); ("[T]he two houses of Congress, in their separate relations, possess not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective.... ").
Marshall, 243 U.S. at 537; Anderson, 19 U.S. at 228 (holding that in the absence of a contempt power the House would be "exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it").
See Rex E. Lee, Executive Privilege, Congressional Subpoena Power, and Judicial Review: Three Branches, Three Powers, and Some Relationships, 1978 BYU L. Rev. 231, 254 (writing that "[t]here is something unseemly about a House of Congress getting into the business of trial and punishment"); S. Rep. No. 95-170, at 97 (1977) (describing Congress's inherent contempt power, which requires a trial in the House or the Senate, as "time consuming and not very effective").
Congressional Quarterly's Guide to Congress 163 (3d ed. 1982).
See Hamilton, supra note 272, at 96–97 (describing Chairman Ervin using a threat of inherent contempt to obtain the testimony of White House aide Alexander Butterfield); id. at 160 (noting that President Nixon was "determined to prohibit his top aides" from testifying before Congress until Chairman Ervin "threatened to dispatch the Senate sergeant at arms to transport them to the Senate").
Id. at 95 ("[T]he self-help powers of Congress remain an alternate method to nudge intransigent witnesses into giving evidence to Congressional bodies.").
See CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey (2019), at 17-20. The statute of limitations for these crimes is generally five years. 18 U.S.C. § 3282.
18 U.S.C. § 1621(a).
Christoffel v. United States, 338 U.S. 84, 90 (1949).
House Rule XI(2)(h)(2).
Senate Rule XXVI(7)(a)(2) allows its committees to set quorum requirements at less than the normal one-third for taking sworn testimony. Almost all Senate committees have set their quorum requirements at one member.
Christoffel, 338 U.S. at 90.
Perjury requires that the false statement be made under "an oath authorized by law" and before a "competent tribunal." Unless expressly authorized to take a deposition under oath, conversations with committee staff generally do not fall within the scope of the perjury statute. See, e.g., United States v. Weissman, No. S2 94 Cr. 760, 1996 WL 742844 (S.D.N.Y. 1996).
18 U.S.C. § 1001.
Id.
Id. § 1505.
Id. § 1515(b). In Fischer v. United States, the Supreme Court narrowed the reach of another obstruction statute, 18 U.S.C. §1512, which had been used to prosecute those alleged to have participated in the breach of the Capitol on January 6, 2021. See CRS Legal Sidebar LSB11126, Fischer v. United States: Supreme Court Reads Federal Obstruction Provision Narrowly in Capitol Breach Prosecution, by Peter G. Berris (2024).
See "The Constitutional Scope of the Investigative Power: Legislative Purpose" supra.
Barenblatt v. United States, 360 U.S. 109, 112 (1959).
Trump v. Mazars USA, LLP, 591 U.S. 848, 863 (2020).
Watkins v. United States, 354 U.S. 178, 197 (1957). See also Senate Permanent Subcomm., on Investigations v. Ferrer, 199 F. Supp. 3d 125, 138 (D.D.C. 2016) ("The underlying rationale of this precept is that 'investigation is part of lawmaking' and the 'First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking.'") (citing Watkins v. United States, 354 U.S. 178, 197 (1957)).
Barenblatt, 360 U.S. at 126.
Watkins, 354 U.S. at 198. A balancing test was also used in Branzburg v. Hayes, 408 U.S. 665 (1972), which involved the claimed privilege of newsmen not to respond to demands of a grand jury for information. In its 5-4 decision, the Court concluded that the grand jury's need for the information outweighed First Amendment considerations, but the opinion indicates that "the infringement of protected First Amendment rights must be no broader than necessary to achieve a permissible governmental purpose" and that "a State's interest must be 'compelling' or 'paramount' to justify even an indirect burden on First Amendment rights." Id. at 699-700; see also Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 546-47 (1963) (applying the compelling interest test in a legislative investigation).
See, e.g., Barenblatt, 360 U.S. 109; Watkins, 354 U.S. 178; United States v. Rumely, 345 U.S. 41 (1953); see also 4 Deschler's Precedents of the U.S. House of Representatives, ch. 15, § 10 n.15 and accompanying text (1994).
Barrenblatt, 360 U.S. at 126. For recent rejections of First Amendment defenses asserted in response to congressional subpoenas, see Ward v. Thompson, No. 22-16473, 2022 WL 14955000 (9th Cir. Oct. 22, 2022); Senate Permanent Subcomm., on Investigations v. Ferrer, 199 F. Supp. 3d 125, 138-44 (D.D.C. 2016).
The outtakes were portions of the CBS film clips that were not actually broadcast. The subcommittee wanted to compare the outtakes with the tape of the broadcast to determine if improper editing techniques had been used.
H.R. Rept. 92-349 (1971). CBS's legal argument was based in part on the claim that Congress could not constitutionally legislate on the subject of editing techniques and therefore the subcommittee lacked a valid legislative purpose for the investigation. Id. at 9.
See 117 Cong. Rec. 23922-23926, 24603-24659, 24720-24753 (1971).
See 117 Cong. Rec. 24731-24732 (1971).
McPhaul v. United States, 364 U.S. 372 (1960); see also Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968). Following Carpenter v. United States, 585 U.S. 296 (2018), it is conceivable that congressional subpoenas to a third-party information holder could face new Fourth Amendment scrutiny. See id.at 385 (Alito, J., dissenting) (noting that one possible consequence of applying the "broad principles that the Court seems to embrace" may be that "[a]ll subpoenas duces tecum ... compelling the production of documents will require a demonstration of probable cause, and individuals will be able to claim a protected Fourth Amendment interest in any sensitive personal information about them that is collected and owned by third parties"); id. at 340 (Kennedy, J., dissenting) (asserting that "by invalidating the Government's use of court-approved compulsory process in this case, the Court calls into question the subpoena practices of federal and state grand juries, legislatures, and other investigative bodies").
McPhaul, 364 U.S. at 382 (internal citations omitted).
Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955). For further discussion, see CRS Legal Sidebar WSLG1813, The Fifth Amendment in Congressional Investigations, by Todd Garvey (2017).
The basis for asserting the privilege has been described by the U.S. District Court for the District of Columbia as follows:
The privilege may only be asserted when there is reasonable apprehension on the part of the witness that his answer would furnish some evidence upon which he could be convicted of a criminal offense ... or which would reveal sources from which evidence could be obtained that would lead to such conviction or to prosecution therefore.... Once it has become apparent that the answers to a question would expose a witness to the danger of conviction or prosecution, wider latitude is permitted the witness in refusing to answer other questions.
United States v. Jaffee, 98 F. Supp. 191, 193-94 (D.D.C. 1951). The privilege is personal in nature and may not be invoked on behalf of a corporation, Hale v. Henkel, 201 U.S. 43 (1906), small partnership, Bellis v. United States, 417 U.S. 85 (1974), labor union, United States v. White, 322 U.S. 694 (1944), or other "artificial" organization, Bellis, 417 U.S. at 90.
Doe v. United States, 487 U.S. 201, 210 (1988).
Hoffman v. United States, 341 U.S. 479, 486 (1951).
Fisher v. United States, 425 U.S. 391, 396 (1976).
Kastigar v. United States, 406 U.S. 441, 445 (1972).
Ohio v. Reiner, 532 U.S. 17, 21 (2001) ("[W]e have emphasized that one of the Fifth Amendment's 'basic functions … is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.''") (quoting Grunewald v. United States, 353 U. S. 391, 421 (1957)). But see Simpson v. United States, 241 F.2d 222 (9th Cir. 1957) (privilege inapplicable to questions seeking basic identifying information, such as the witness's name and address).
Doe, 487 U.S. at 610 ("Where the preparation of business records is voluntary, no compulsion is present.").
Id. at 612.
Fisher, 425 U.S. at 411.
In re Harris, 221 U.S. 274, 279 (1911).
United States v. Hubbell, 530 U.S. 27, 45 (2000).
Quinn v. United States, 349 U.S. 155 (1955).
Emspak v. United States, 349 U.S. 190 (1955); see also Staff of Joint Comm. on Cong. Operations, 94th Cong., Leading Cases on Congressional Investigatory Power 63 (Comm. Print 1976).
Emspak, 349 U.S. at 195. See also Johnson v. Zerbst, 304 U.S. 458, 464 (1938). It remains undetermined whether the rule of "testimonial subject matter waiver" applies to claims of privilege in congressional hearings. That doctrine provides that if a witness provides testimony on a particular subject matter, he or she has waived the privilege against self-incrimination as it relates to that subject only. See Brown v. United States, 356 U.S. 148 (1958); Mitchell v. United States, 526 U.S. 314 (1999). But see Presser v. United States, 284 F.2d 233 (D.C. Cir. 1960) (suggesting that the Brown rule applies in congressional proceedings).
18 U.S.C. §§ 6002, 6005.
Id. § 6002(3).
The constitutionality of granting a witness only-use immunity, rather than transactional immunity, was upheld in Kastigar v. United States, 406 U.S. 441 (1972).
18 U.S.C. § 6005(a).
The DOJ may waive the notice requirement. Application of the U.S. Senate Permanent Subcomm. on Investigations, 655 F.2d 1232, 1236 (D.C. Cir. 1980).
Id. at 1237.
See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc).
Application of the U.S. Senate Select Comm. on Presidential Campaign Activities, 361 F. Supp. 1270 (D.D.C. 1973). In non-binding dicta, however, the court referred to the legislative history of the statutory procedure. That history, in the court's view, suggested that although a court lacks power to review the advisability of granting immunity, it may consider the jurisdiction of Congress and the committee over the subject area and the relevance of the information that is sought to the committee's inquiry. See id. at 1278-79.
Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (concluding that the concept of Due Process is "flexible and calls for such procedural protections as the particular situation demands").
Hannah v. Larche, 363 U.S. 420, 442 (1960).
United States v. Fort, 443 F.2d 670, 679 (D.C. Cir. 1970).
Deutch v. United States, 367 U.S. 456, 467-68 (1961). As the court explained in that case, there is also a separate statutory requirement of pertinency.
Watkins v. United States, 354 U.S. 178, 214-15 (1957).
Deutch, 367 U.S. at 467-68.
See generally Telford Taylor, Grand Inquest: The Story of Congressional Investigations 227-28 (1974).
See, e.g., H.R. Rep. No 116-125 at 31 (2019) (concluding that "common law privileges ... are not valid reasons to withhold documents subject to a valid subpoena from Congress, which derives its investigative authority from the Constitution.) Id. (citing Letter from Chairman Jason Chaffetz. et al., Committee on Oversight and Government Reform to Huban Gowadia, Acting Administrator, Transportation Security Administration (May 2, 2017)) ("The House of Representatives derives its authority from the United States Constitution and is bound only by the privileges derived therefrom ... neither the Committee nor the United States House of Representatives recognizes purported non-disclosure privileges associated with the common law.... "); S Rep. No 105-167 at 586 (1998) ("There is no binding authority that the Senate and its committees are legally required to recognize common-law privileges such as the attorney-client or work-product privilege. As a separate and equal branch of government, Congress is constitutionally authorized to establish its own rules of procedure, so long as they do not contravene the express provisions of the Constitution. Both the attorney-client and work-product privileges are common-law privileges established by the courts; they have no constitutional standing (although attorney-client privilege is implicated in some of the Constitution's provisions). The Senate is under no obligation to recognize the attorney-client and work-product privileges."); H.R. Rep. No. 105-792 (1998) ("The historic position of the House of Representatives is that committees of Congress are not bound to recognize any non-Constitutional privilege, such as the attorney-client privilege.").
For example, in rejecting a 1955 bill that would have made common-law privileges applicable in committee investigations, the Senate stated, "With few exceptions, it has been committee practice to observe the testimonial privileges of witnesses with respect to communications between clergyman and parishioner, doctor and patient, lawyer and client, and husband and wife." S. Rep. No. 84-2, at 27-28 (1955).
See H. Comm. on Nat. Res., Rule IV ("Claims of common-law privileges made by witnesses in hearings, or by interviewees or deponents in investigations or inquiries, are applicable only at the discretion of the Chair, subject to appeal to the Committee."); H. Comm. on Sci., Space, & Tech., Rule III ("Claims of common-law privileges made by witnesses in hearings, or by interviewees or deponents in investigations or inquiries, are applicable only at the discretion of the Chair, subject to appeal to the Committee."); 1 International Uranium Control: Hearing Before the Oversight and Investigations Subcomm. of the House Comm. on Interstate & Foreign Comm., 95th Cong. 60 (1977).
U.S. Const. art. 1, §5, cl. 2.
Trump v. Mazars USA, LLP, 591 U.S. 848, 863 (2020) (emphasis added).
See, e.g., Robert Kelner and Perrin Cooke, The Supreme Court's Mazars Decision Contains a Significant Suggestion That Congress May Be Bound by the Attorney-Client Privilege in Congressional Investigations, Inside Pol. L. (July 9, 2020), https://www.insidepoliticallaw.com/2020/07/09/the-supreme-courts-mazars-decision-contains-a-significant-suggestion-that-congress-may-be-bound-by-the-attorney-client-privilege-in-congressional-investigations/https://www.insidepoliticallaw.com/2020/07/09/the-supreme-courts-mazars-decision-contains-a-significant-suggestion-that-congress-may-be-bound-by-the-attorney-client-privilege-in-congressional-investigations/.
U.S. Const. art. VI ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.").
In the historical example referenced by the Court for support of the proposition that witnesses are understood to retain certain common-law privileges in congressional investigations, the committee chair stated in the course of considering an attorney-client claim that "[i]t is well-established by congressional precedent and practice that acceptance of a claim of attorney-client privilege rests in the sole and sound discretion of Congress, and cannot be asserted as a matter of right." See Louis Fisher, The Politics of Executive Privilege 106 (2004). See also Michael D. Bopp & Delisa Lay, The Availability of Common Law Privileges for Witnesses in Congressional Investigations, 35 Harv. J.L. & Pub. Pol'y 897, 905 (2012) (noting that "common law privileges are not constitutionally protected and thus do not apply to Congress").
Upjohn v. United States, 449 U.S. 383, 389 (1981); Westinghouse Elec. Corp. v. Republic of the Phil., 951 F.2d 1414, 1423 (3d Cir. 1991). See also United States v. Bisanti, 414 F.3d 168, 171 (1st Cir. 2005) ("The essential elements of the claim of attorney-client privilege are as follows: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.").
International Uranium Control, supra note 345, at 60.
Committees may also consider their statutory duty to engage in continuous oversight of the application, administration, and execution of laws that fall within their jurisdiction. See 2 U.S.C. § 190d ("[E]ach standing committee of the Senate and the House of Representatives shall review and study, on a continuing basis, the application, administration, and execution of those laws, or parts of laws, the subject matter of which is within the jurisdiction of that committee.").
For a discussion of the House's approach to the attorney-client privilege, see David Rapallo, House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022).
See, e.g., H.R. Rep. No. 105-792, at 11 (1988) ("The historic position of the House of Representatives is that committees of Congress are not bound to recognize any non-Constitutional privilege, such as the attorney-client privilege."); H.R. Rep. No. 104-598, at 43 (1996) ("It is well-established by congressional practice that acceptance of a claim of attorney-client or work product privilege before a committee rests in the sound discretion of that committee.").
Fed. R. Evid. 501.
See generally CRS Legal Sidebar LSB11347, Congressional Access to Personal Health Information, by Todd Garvey (2025); Staff of the Subcomm. on Oversight & Investigations of the H. Comm. on Energy & Com., 98th Cong., Attorney-Client Privilege: Memoranda Opinions of the American Law Division, Library of Congress (Comm. Print 1983).
United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970) (citing Hannah v. Larche, 363 U.S. 420 (1960)).
See infra notes 346–54 and accompanying text.
In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997) (noting that "executive officials have claimed a variety of privileges to resist disclosure of information"); see also John E. Bies, Primer on Executive Privilege and the Executive Branch Approach to Congressional Oversight, Lawfare (June 16, 2017) ("[A] review of executive branch practice identifies a number of categories of information that the executive branch, at least, believes may be protected by an invocation of the privilege."), https://www.lawfaremedia.org/article/primer-executive-privilege-and-executive-branch-approach-congressional-oversight [https://perma.cc/9MXC-XYZQ].
See H. Comm. on Oversight & Gov't Reform, 110th Cong., Rep. on President Bush's Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukasey 8 (Comm. Print 2008) [hereinafter Mukasey Report] ("The Attorney General's argument that the subpoena implicates the 'law enforcement component' of executive privilege is equally flawed. There is no basis to support the proposition that a law enforcement privilege, particularly one applied to closed investigations, can shield from congressional scrutiny information that is important for addressing congressional oversight concerns. The Attorney General did not cite a single judicial decision recognizing this alleged privilege."); H.R. Rep. No. 105-728, at 16 n.43 (1998) ("As the D.C. Circuit has recently held, the doctrine of executive privilege which arises from the constitutional separation of powers applies only to decisionmaking of the President. Since the subject of the Committee's subpoena is not one that does (or legally could) involve Presidential decisionmaking, no constitutional privilege could be invoked here.") (citations omitted).
See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 116 (May 30, 1984) ("The scope of executive privilege includes several related areas in which confidentiality within the Executive Branch is necessary for the effective execution of the laws.").
See Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154 (June 19, 1989).
See Assertion of Executive Privilege Regarding White House Counsel's Office Documents, 20 Op. O.L.C. 2 (May 23, 1996).
See Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation into Operation Fast and Furious, 36 Op. O.L.C. 1 (2012).
See Protective Assertion of Executive Privilege Over Unredacted Mueller Report and Related Investigative Files, 43 Op. Att'ys Gen. 374 (Nov. 30, 1982).
See 8 Op. O.L.C. 101, supra note 362, at 116 (reasoning that "[t]he scope of executive privilege includes several related areas"); 13 Op. O.L.C. 153, supra note 363, at 154 (reasoning that "the executive branch's interest in keeping the information confidential" is "usually discussed in terms of 'executive privilege'").
See supra note 361.
United States v. Nixon, 418 U.S. 683, 710 (1974).
Id. at 711.
Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974). Although it appears that former Presidents may assert the presidential communications privilege over communications made while in office, that claim appears to be weakened when the sitting President does not concur with the former President's privilege claim. See Trump v. Thompson, 20 F.4th 10, 32 (D.C. Cir. 2021), application for stay of mandate and injunction pending review denied, 142 S. Ct. 680 (2022) (stating that the appellate court's discussion of "President Trump's status as a former President must [] be regarded as nonbinding dicta"); Nixon v. GSA, 433 U.S. 425, 448, 451 (1999) (concluding that "a former President is in less need of" the privilege "than an incumbent" and that the "expectation of the confidentiality of executive communications [is] . . subject to erosion over time after an administration leaves office").
In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997).
In In re Sealed Case, the D.C. Circuit determined that "the deliberative process privilege is primarily a common law privilege" but that "[s]ome aspects of the privilege, for example the protection accorded the mental processes of agency officials, have roots in the constitutional separation of powers." 121 F.3d at 745, 737 n.4. Later, in Committee on Oversight & Gov't Reform v. Lynch, a district court "determined that there is an important constitutional dimension to the deliberative process aspect of the executive privilege, and that the privilege could be properly invoked in response to a legislative demand." See 156 F. Supp. 3d 101, 104 (D.D.C. 2016).
The scope and source of the law enforcement privilege is unclear, particularly when asserted in the context of congressional investigations where committees have voiced consistent objections to its use. The executive branch asserts that the law enforcement privilege is constitutionally based, deriving from both the President's responsibility to "faithfully execute the law" under Article II and constitutionally rooted individual trial and privacy rights. See Congressional Subpoenas of Department of Justice Investigative Files, 8 Op. O.L.C. 252 (1984). Committees, on the other hand, have previously viewed the executive branch's position on the confidentiality of law enforcement information as a nondisclosure "policy" rather than a constitutionally based privilege. See H. Comm. on Oversight and Gov't Reform, 110th Cong., Mukasey Report, supra note 361, at 8. For a discussion of the law enforcement privilege in the context of congressional investigations see CRS Legal Sidebar LSB11172, The Hur Tapes and the President's Claim of Executive Privilege, by Todd Garvey (2024).
Nixon, 418 U.S. at 708.
See supra notes 342–50 and accompanying text.
Given its broad scope, the deliberative-process privilege is "the most frequent form of executive privilege raised." In re Sealed Case, 121 F.3d at 737.
Id. at 737 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)).
See Assassination Archives & Research Ctr. v. CIA, No. 18-5280, 2020 WL 13120318, at *2 (D.C. Cir. Dec. 21, 2020) ("The privilege covers information that is both 'predecisional' and 'deliberative.' Documents are predecisional if they were 'generated before the adoption of an agency policy,' and deliberative if they 'reflect[] the give-and-take of the consultative process.'") (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
See Nixon, 418 U.S. at 707 (holding that the presidential communications privilege is not "absolute" or "unqualified"); Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974).
See Comm. on Oversight & Gov't Reform v. Lynch, 156 F. Supp. 3d 101, 112 (D.D.C. 2016) (finding that a congressional committees need for deliberative materials outweighed the executive branch's interest in confidentiality).
See Trump v. Thompson, 20 F.4th 10, 41–42 (D.C. Cir. 2021); Comm. on Oversight & Gov't Reform v. Lynch, 156 F. Supp. 3d 101, 112 (D.D.C. 2016); Senate Select, 498 F.2d at 733 (noting that "[w]e must ... consider the nature of [the Committee's] need when we are called upon" to order the President to "disclose to the Committee records of conversations between himself and his principal aides").
Senate Select, 498 F.2d at 733.
Id. at 732.
Id.
Thompson, 20 F.4th at 10.
Id. at 23, n.6 ("The only privilege at issue in this appeal is the constitutionally based presidential communications privilege.").
Id. at 16.
Id. at 32.
Id. at 35 (citing Nixon, 433 U.S. at 439).
Id. at 33 (emphasis added). These tests included those established in Trump v Mazars, 140 S. Ct. 2019, 2035–36 (2020) (congressional subpoena for personal presidential records), Senate Select, 498 F.2d 725, 731 (D.C. Cir. 1974) (congressional subpoena for official records of sitting president), and United States v. Nixon, 418 U.S. 683, 686 (1974) (judicial subpoena to sitting president).
Thompson, 20 F.4th at 33 (noting a "rare and formidable alignment of factors"); Senate Select, 498 F.2d at 733 (noting the "peculiar circumstances of this case").
Thompson, 20 F.4th at 33-35.
Id. at 33, 35.
Id. at 35.
Trump v. Thompson, 142 S. Ct. 680 (2022) (denying application for stay of mandate).
Id.
26 U.S.C. § 6103(f)(1). Returns are to be submitted to the requesting committee in a manner that protects the privacy of the individual. In the event that a committee requests information identifying any tax filer (either directly or indirectly), that information may be furnished to the committee only "when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure." Id. See generally, CRS Report R48323, Disclosure of Federal Tax Return Information to Congressional Committees, by Justin C. Chung (2025); CRS Legal Sidebar LSB10275, Congressional Access to the President's Federal Tax Returns, by David H. Carpenter, Todd Garvey, and Edward C. Liu (2019).
In the case of other joint or special committees, a concurrent resolution is required. 26 U.S.C. § 6103(f)(1).
Id. § 6103(f)(3).
Id.
Intelligence activities is defined to include "covert actions" and "financial intelligence activities" but is not further defined in law. 50 U.S.C. § 3091(f). Covert action is also defined in statute. 50 U.S.C. § 3093(e). Intelligence activities is defined by Executive Order 12333, as amended, as "all activities that agencies within the Intelligence Community are authorized to conduct pursuant to this Order." Executive Order 12333, "United States Intelligence Activities," 46 Fed. Reg. 59941 (Dec. 4, 1981). Additionally, detailed definitions of intelligence activities and intelligence-related activities are contained in the Senate resolution establishing the Senate Select Committee on Intelligence and the House rule establishing the House Permanent Select Committee on Intelligence. See S. Res. 400, 94th Cong., §14(a) (as amended); House Rule X(11)(j)(1).
This requirement includes reporting on "significant anticipated intelligence activity as required by this subchapter." 50 U.S.C. § 3091(a).
Id.
50 U.S.C. §§ 3092(a), 3093(b).
Statutory restrictions on committee access to certain types of information may raise other concerns. The Supreme Court has recognized "the centuries-old concept" that "one legislature cannot abridge the powers of a succeeding legislature" or seek to "bind the legislative authority of its successors" by entrenching in statute a restriction on a constitutional power otherwise accorded to that chamber. Fletcher v. Peck 10 U.S. 87, 135 (1810); United States v. Winstar Corp., 518 U.S. 839, 872 (1996). The constitutional power to investigate is an implied legislative power that belongs independently to each chamber. Therefore, it may be that this anti-entrenchment principle requires that any statutory provision limiting a chamber's authority to obtain information that it would otherwise be constitutionally entitled to would need to be subject to change or alteration by that chamber, presumably through a House or Senate resolution. Otherwise, the Congress that enacted the statutory provision will have bound a future House or Senate in how they may exercise their constitutional power of inquiry.
See, e.g., FTC v. Owens-Corning Fiberglass Corp., 626 F.2d 966, 970, 974 (D.C. Cir. 1980); Exxon Corp. v. FTC, 589 F.2d 582, 585-89 (D.C. Cir. 1978); Ashland Oil Co., Inc. v. FTC, 548 F.2d 977, 979 (D.C. Cir. 1976).
See, e.g., 5 U.S.C. § 552a(b)(9); 6 U.S.C. § 673.
18 U.S.C. § 1905.
See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1144-52 (D.C. Cir. 1987) (discussing the legislative history of the Trade Secrets Act).
Exec. Order No. 13526, 75 Fed. Reg. 707 (Jan. 5, 2010).
Id. § 1.3. The unauthorized disclosure of foreign government information is presumed to damage national security. Id. § 1.1(b).
Id. § 1.4. The areas are as follows: military plans, weapons systems, or operations; foreign government information; intelligence activities, intelligence sources/methods; cryptology; foreign relations or foreign activities of the United States, including confidential sources; scientific, technological, or economic matters relating to national security; federal programs for safeguarding nuclear materials or facilities; vulnerabilities or capabilities of national security systems; or weapons of mass destruction. Id. In addition, when classified information that is incorporated, paraphrased, restated, or generated in a new form, that new form must be classified at the same level as the original. Id. §§ 2.1–2.2.
Id. § 1.2.
Id.
Id. Classifying authorities are specifically prohibited from classifying information for reasons other than protecting national security, such as to conceal violations of law or avoid embarrassment. Id. § 1.7(a).
Id. § 1.5.
Id. § 1.5(c).
Id. §§ 4.1, 6.1(dd). The need-to-know requirement can be waived for former Presidents and Vice Presidents, historical researchers, and former policymaking officials who were appointed by the President or Vice President. Id. § 4.4.
Id. § 4.1.
Id. § 4.2.
Access to Classified Information, 20 Op. O.L.C. 402, 406 (1996).
See id.
See CRS Report R43216, Security Clearance Process: Answers to Frequently Asked Questions, by Michelle D. Christensen (2023), at 5.
See 50 U.S.C. § 3163 (exempting Members of Congress from requirements for accessing classified information).
Exec. Order No. 13556, 75 Fed. Reg. 68675 (Nov. 4, 2010).
See 32 C.F.R. § 2002.16(a)(7) (providing that "[a]gencies need not enter a written agreement when they share CUI with ... Congress, including any committee, subcommittee, joint committee, joint subcommittee, or office thereof").
CUI is defined as
information the Government creates or possesses, or that an entity creates or possesses for or on behalf of the Government, that a law, regulation, or Government-wide policy requires or permits an agency to handle using safeguarding or dissemination controls. However, CUI does not include classified information ... or information a non-executive branch entity possesses and maintains in its own systems that did not come from, or was not created or possessed by or for, an executive branch agency or an entity acting for an agency.
Id. § 2002.4(h).
Exec. Order No. 13556 § 2(c).
See CUI Registry: CUI Categories, Nat'l Archives (Mar. 6, 2025), https://www.archives.gov/cui/registry/category-list [https://perma.cc/XL6T-494R].
Exec. Order No. 13556 § 6(a).
49 U.S.C. § 114(r)(1).
Id. § 114(r)(2).
49 C.F.R. § 1520.5.
See id. § 1520.7 (providing 13 specific categories of "covered persons").
Id. § 1520.15(c).
32 C.F.R. Part 2002.
Id. § 2002.2(c). Agreement or arrangement is defined as "any vehicle that sets out specific CUI handling requirements for contractors and other information-sharing partners when the arrangement with the other party involves CUI [including] contracts, grants, licenses, certificates, memoranda of agreement/arrangement or understanding, and information-sharing agreements or arrangements."
Id. § 2002.16(a)(7)(i).
When authorized by chamber and committee rules, an individual committee chair may exercise the subpoena power. See House Rule XI(2)(m)(3)(A)(i). Minority members are accorded some rights under the rules. For example, in the House of Representatives, whenever a hearing is conducted on any measure or matter, the minority may, upon the written request of a majority of the minority Members to the chair before the completion of the hearing, call witnesses selected by the minority and presumably request documents. House Rule XI 2(j)(1); see also House Fin. Servs. Comm. Rule 3(d)(5).
See CRS Report RL30360, Filibusters and Cloture in the Senate, by Valerie Heitshusen (2017).
Senate Rule XXII.
5 U.S.C. § 2954 provides: "An Executive agency, on request of the Committee on [Oversight and] Government [Reform] of the House of Representatives, or of any seven members thereof, or on request of the Committee on [Homeland Security and] Government[al Affairs] of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee."
Since the 118th Congress, the House of Representatives has included a Separate Order in the resolution adopting its own chamber rules that providing that "the chair of the [Oversight Committee] shall be included as one of the seven members of the Committee making any request of an Executive agency pursuant to section 2954 of title 5, United States Code." As a practical matter, prior to the Separate Order, "any seven members" of the Committee were statutorily authorized to make a request under § 2954. After the change, those same members now appear to need the participation of the chair to make a request under § 2954. Whether this change amounts to an impermissible amendment to statutory language without compliance with bicameralism and presentment or a permissible exercise of the House's rulemaking power is subject to some debate.
The text of the statute refers to the House Committee on Government Operations, a predecessor to the House Committee on Oversight and Reform, and the Senate Committee on Governmental Affairs, a predecessor to the Senate Committee on Homeland Security and Governmental Affairs.
Maloney v. Murphy, 984 F.3d 50, 54 (D.C. Cir. 2020), vacated sub nom. Carnahan v. Maloney, 143 S. Ct. 2653 (2023) (mem.). A federal district court in California previously came to an opposing conclusion on the standing question. See Waxman v. Thompson, No. CV-04-3467, 2006 WL 8432224, at *12 (C.D. Cal. July 24, 2006).
Maloney, 984 F.3d at 70 ("This decision resolves only the standing question decided by the district court. To the extent the GSA's argument or the district court's reasoning implicate the existence of a cause of action, the appropriate exercise of equitable discretion, or the merits of the Requesters' claims, those issues remain to be resolved by the district court in the first instance.").
Maloney, 143 S. Ct. at 2653.
60 Stat. 812, 832.
CRS provides a variety of resources to assist congressional offices with casework. These include CRS Report RL33209, Casework in a Congressional Office: Background, Rules, Laws, and Resources, by R. Eric Petersen and Sarah J. Eckman; CRS In Focus IF10503, Constituent Services: Overview and Resources, by Sarah J. Eckman; and "Casework and Other Constituent Services," available to congressional offices at https://www.crs.gov/resources/casework.
Larry P. Ortiz et al., "Legislative Casework: When Policy and Practice Intersect," Journal of Sociology and Social Welfare, vol. 31 (June 2004), pp. 49-52; Rep. Lee H. Hamilton, "Casework," Congressional Record, vol. 142, (July 24, 1996), pp. 19015-19016; and John R. Johannes, "Casework as a Technique of U.S. Congressional Oversight of the Executive," Legislative Studies Quarterly, vol. 4 (August 1979), pp. 325-351.
GAO's Government Auditing Standards—also known as the Yellow Book—identifies three types of engagements that audit agencies may conduct: (1) financial audits, (2) attestation engagements and reviews of financial statements, and (3) performance audits. See GAO, Government Auditing Standards, 2018 Revision Technical Update April 2021, GAO-21-368G, pp. 7-14, https://www.gao.gov/products/gao-21-368g.
GAO issues government auditing standards—commonly referred to as generally accepted government auditing standards—as part of the Yellow Book. The Yellow Book includes performance audit standards and objectives. According to GAO, the four listed categories of performance audit objectives are not mutually exclusive and can be pursued simultaneously within a single audit engagement. For more information on performance audit objectives and standards, see GAO, Government Auditing Standards, 2024 Revision, pp. 11-15 and 182-238, https://www.gao.gov/assets/d24106786.pdf.
Agencies sometimes consider internal audit reports as predecisional and thus not suitable for release to Congress or the public.
Specifically, at https://www.reginfo.gov/public/do/eAgendaMain.
For more information, see CRS In Focus IF12118, The Unified Agenda of Federal Regulatory and Deregulatory Actions: An Overview, by Maeve P. Carey.
See "Oversight Information Sources and Consultative Services" below (discussing the capabilities of CRS, GAO, and CBO).
2 U.S.C. §4301(i).
2 U.S.C. §4301(i).
For additional information on advisory commissions, see CRS Report R40076, Congressional Commissions: Overview and Considerations for Congress, by Jacob R. Straus.
For more information, see CRS Report R45337, Social Media Adoption by Members of Congress: Trends and Congressional Considerations, by Jacob R. Straus.
For additional information on the congressional press galleries, see CRS Report R44816, Congressional News Media and the House and Senate Press Galleries, by Sarah J. Eckman.
For a more detailed discussion of resolutions of inquiry, see CRS Report R40879, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017, by Christopher M. Davis.
CRS Report R40879, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017, by Christopher M. Davis.
Journal of the House of Representatives, 4th Cong., 1st sess., March 24, 1796, p. 480.
Constitution, Jefferson's Manual, and Rules of the House of Representatives, H.Doc. No. 118-187, 118th Cong., 2nd sess. §1053 (2025).
Legislative Appropriations Act, 1933, 47 Stat. 382, 414.
INS v. Chadha, 462 U.S. 919 (1983).
See generally Curtis A. Bradley, "Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds," Journal of Legal Analysis, vol. 13, no. 1 (2021), pp. 439-501.
See Bernard Weinraub, "Bush and Congress Sign Policy Accord on Aid to Contras," New York Times, March 25, 1986, https://www.nytimes.com/1989/03/25/world/bush-and-congress-sign-policy-accord-on-aid-to-contras.html.
See Louis Fisher, "The Legislative Veto: Invalidated, It Survives," Law and Contemporary Problems, vol. 56, no. 4 (1993), p. 292.
Sibbach v. Wilson, 312 U.S. 1, 15 (1941).
These provisions were codified at 28 U.S.C. §§591-599.
For additional information, see CRS Report R44857, Special Counsel Investigations: History, Authority, Appointment and Removal, by Jared P. Cole.
487 U.S. 654 (1988).
28 U.S.C. §595(a)(1).
28 U.S.C. §595(c).
28 C.F.R. Part 600.
28 C.F.R. Part 600.7(d).
Office of the Deputy Attorney General, "Appointment of Special Counsel," press release, May 17, 2017, https://www.justice.gov/opa/pr/appointment-special-counsel.
Office of the Attorney General, "Appointment of Robert K. Hur as Special Counsel," January 12, 2023, https://www.justice.gov/archives/media/1268121/dl.
Some observers may refer to all of these categories as generally constituting reporting requirements.
See Clinton T. Brass and Wendy Ginsberg, "Congress Evolving in the Face of Complexity: Legislative Efforts to Embed Transparency, Participation, and Representation in Agency Operations," in CRS Committee Print CP10000, The Evolving Congress: A Committee Print Prepared for the Senate Committee on Rules and Administration, coordinated by Walter J. Oleszek, Michael L. Koempel, and Robert Jay Dilger.
A 2020 CRS study identified 3,359 reporting requirements enacted during the 115th Congress. CRS Report R46357, Congressionally Mandated Reports: Overview and Considerations for Congress, by William T. Egar (archived).
House Rule II, clause 2(b); see Jefferson's Manual, and Rules of the House of Representatives, H.Doc. 117-161, 117th Cong., 2nd sess. (2023), p. 380, https://www.govinfo.gov/content/pkg/HMAN-118/pdf/HMAN-118.pdf#page=393. For the most recent version, see U.S. Congress, House, Reports to Be Made to Congress, transmitting a list of reports pursuant to clause 2(b), Rule II of the Rules of the House of Representatives, prepared by the Clerk, U.S. House of Representatives, 118th Cong., 2nd sess., January 9, 2024, H.Doc. 118-97 (GPO, 2024), https://www.govinfo.gov/app/details/CDOC-118hdoc97/CDOC-118hdoc97.
CRS Report R46862, How Are Reporting Requirements Submitted to Congress?, by Kathleen E. Marchsteiner.
Access to Congressionally Mandated Reports Act (P.L. 117-263, Division G, Title LXXII, Subtitle D; December 23, 2022; 44 U.S.C. note preceding §4101), https://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter41&edition=prelim. For more information, see U.S. Government Publishing Office, "Congressionally Mandated Reports," https://www.gpo.gov/how-to-work-with-us/agency/congressionally-mandated-reports.
For discussion, see CRS Report R42490, Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA Modernization Act of 2010 (GPRAMA), by Clinton T. Brass.
See CRS Report R42490, Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA Modernization Act of 2010 (GPRAMA), by Clinton T. Brass..
See CRS Report R42490, Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA Modernization Act of 2010 (GPRAMA), by Clinton T. Brass.
For more information, see CRS Report R46661, Strategies for Identifying Reporting Requirements and Submitted Reporting to Congress, by Kathleen E. Marchsteiner.
See CRS Report R46862, How Are Reporting Requirements Submitted to Congress?, by Kathleen E. Marchsteiner.
CRS is aware of approximately 25 such requirements under current law. See CRS Report R47288, Statutory Testimony Requirements: Background and Issues for Congress, by Ben Wilhelm.
Title 7, Section 228(c), of the U.S. Code requires the Secretary of Agriculture to testify annually on the department's budget before the Agriculture Committees, and Title 39, Section 2401(e), requires the U.S. Postal Service (USPS)—the specific official is not identified—to appear annually before the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Reform regarding the agency's annual budget.
For example, Title 12, Section 5496(a), of the U.S. Code requires the director of the Consumer Financial Protection Bureau to appear before the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Energy and Commerce on a semiannual basis.
Section 617 of Title VI of P.L. 116-260 (codified at 50 U.S.C. §3043b(d)).
"Conference Report on S. 555, Public Officials Integrity Act of 1977," House Debate, Congressional Record, vol. 124, part 26 (October 11, 1978), pp. 35650-35672.
Many of the laws were codified in the U.S. Code, sometimes in one place and other times across a number of locations, and subsequently amended.
Both this provision and Section 743 of the same bill, below, have continued in effect under the continuing resolution for FY2025 (P.L. 119-4).
Executive Order 12958 was promulgated by President Bill Clinton on April 20, 1995, and established the classification system for national security information.
86 Stat. 771 (1972).
See McCubbins and Schwartz, "Congressional Oversight Overlooked," p. 175.
McCubbins and Schwartz, "Congressional Oversight Overlooked," p. 175.
Many of these statutes are discussed in CRS Report RL30795, General Management Laws: A Compendium, by Clinton T. Brass et al. (available to congressional clients upon request). For an analysis of themes that cut across these statutes, see CRS Report RL32388, General Management Laws: Major Themes and Management Policy Options, by Clinton T. Brass. See also Brass and Ginsberg, "Congress Evolving in the Face of Complexity."
For more information, see CRS Report R44253, Federal Advisory Committees: An Introduction and Overview, by Meghan M. Stuessy.
For an expanded introduction to federal financial management, see CRS In Focus IF11610, Federal Financial and Budgetary Reporting: A Primer, by Dominick A. Fiorentino; and CRS In Focus IF11620, The Office of Federal Financial Management: An Overview, by Dominick A. Fiorentino.
See CRS Insight IN11495, The Chief Financial Officers (CFO) Act of 1990: 30th Anniversary and Potential Issues for Congress, by Dominick A. Fiorentino and Clinton T. Brass.
Robert Gellman, "Crowdsourcing, Citizen Science, and the Law: Legal Issues Affecting Federal Agencies," Woodrow Wilson International Center for Scholars, p. 27, https://www.wilsoncenter.org/sites/default/files/media/documents/publication/CS_Legal_Barriers_Gellman.pdf#page=28. For an overview of the information collection aspects of the act, see CRS In Focus IF11837, The Paperwork Reduction Act and Federal Collections of Information: A Brief Overview, by Maeve P. Carey and Natalie R. Ortiz.
44 U.S.C. §3503(b).
For a detailed discussion, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions, by Maeve P. Carey and Christopher M. Davis; and CRS In Focus IF10023, The Congressional Review Act (CRA), by Maeve P. Carey and Christopher M. Davis.
For more information on statutory IGs, see CRS Report R45450, Statutory Inspectors General in the Federal Government: A Primer, by Ben Wilhelm.
Three other IG posts are recognized in public law: for the Departments of the Air Force (10 U.S.C. §8020), Army (10 U.S.C. §3020), and Navy (10 U.S.C. §5020). This report does not examine these offices because they have a significantly different history, set of authorities, operational structure, and degree of independence compared to other statutory IGs.
5 U.S.C. ch. 4.
P.L. 95-452. Two IGs whose origins pre-dated the IG Act served as models: in 1976, in the Department of Health, Education, and Welfare—now Health and Human Services (P.L. 94-505)—and in 1977, in the then-new Department of Energy (P.L. 95-91). The IG Act establishes OIGs in many federal agencies and defines the IG as the head of each of these offices. The act assigns to the IG specific duties and authorities, including the authority "to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office." See 5 U.S.C. §406(a)(7).
5 U.S.C. §402. IGs not covered by the IG Act generally have similar or identical purposes, although some IG missions may vary. For more information see CRS Report R45450, Statutory Inspectors General in the Federal Government: A Primer, by Ben Wilhelm.
5 U.S.C. §403(d)(1)(C).
5 U.S.C. §4512. IGs operating under their own statutory authorities may have similar or identical authorities to those covered by the IG Act, although some IGs may have additional authorities or be prohibited from exercising the authorities listed in this report.
5 U.S.C. §§415(b), 422(a)(2). One rationale for this proscription is that it would be difficult, if not impossible, for IGs to audit or investigate programs and operations impartially and objectively if they were directly involved in carrying them out.
Some now-defunct statutory IGs have been abolished or transferred either when their parent agencies met the same fate or when superseded by another OIG. For example, the OIG in the Office of the Director of National Intelligence (DNI)—which operated under the full discretionary authority of the DNI (P.L. 108-458)—was supplanted by the IG of the Intelligence Community. The Intelligence Authorization Act of 2010 (P.L. 111-259, §405) established the new Intelligence Community IG post with substantially broader authority, jurisdiction, and independence than the previous IG.
IGs can be grouped in a variety of ways based on several criteria.
See CRS Report R45450, Statutory Inspectors General in the Federal Government: A Primer, by Ben Wilhelm.
In general, the authorities and responsibilities of IGs operating outside of the IG Act are beyond the scope of this report and can differ from those governed by the act. In certain cases, such differences are significant. In addition, unique statutory authorities and responsibilities for some IGs covered by the IG Act are also out of scope. Many IGs covered by the IG Act have been provided additional, unique responsibilities and powers on a selective basis.
5 U.S.C. §§402, 415(g)(1), 401. For more information on IG oversight jurisdiction, see CRS Report R43814, Federal Inspectors General: History, Characteristics, and Recent Congressional Actions, by Michael Greene and Ben Wilhelm.
P.L. 111-203, §§1011, 1081(1)-(2).
5 U.S.C. §404(d).
5 U.S.C. §405(a), (b). The agency head may include additional comments when the IG submits the semiannual report to Congress.
5 U.S.C. §405(c).
5 U.S.C. §405(d). This is commonly referred to as the "Seven Day Letter." More broadly, IGs are to keep the agency head and Congress "fully and currently informed" by means of the required reports and "otherwise." See 5 U.S.C., §404(a)(5). Again, the agency head may not alter the IG's report but may attach additional comments.
Establishment of, and participation in, Oversight.gov is not statutorily required. A list of participating OIGs is available at CIGIE, "About Oversight.gov," https://oversight.gov/about. For more information on Oversight.gov, see CRS Insight IN10752, Inspector General Community Launches Oversight.gov to Increase Accessibility to Reports, by Ben Wilhelm.
5 U.S.C., §§403(a), 415(c).
For more information on IG authorities, see 5 U.S.C. §§404, 406.
The heads of eight agencies—the Departments of Defense, Homeland Security, Justice, and the Treasury plus USPS, the Federal Reserve Board, the Central Intelligence Agency, and the Office of the DNI—are explicitly authorized to prevent or halt their IGs from initiating, carrying out, or completing audits or investigations or issuing subpoenas—and then only to preserve national security interests or to protect ongoing criminal investigations, among a few other reasons. See 5 U.S.C. §§408, 412(a), 413(a), 415(f), 415(g)(3), 415(f)(3)(A), 417I(a); 50 U.S.C. §§3033(f)(1), 3517(b)(3). In addition, the Secretary of Energy may prevent the Department of Energy IG from accessing certain information related to the department's nuclear activities. See 5 U.S.C. §421. When exercising this power, the governing statute generally provides for congressional notification of the exercise of such authority.
5 U.S.C. §§403(a), 415(d).
5 U.S.C. §§406(g), 415(g)(1).
31 U.S.C. §1105(a)(25).
5 U.S.C. §403(a)-(b). This advance notice allows the IG, Congress, or other interested parties to examine, and possibly object to, the planned removal. Notwithstanding this requirement, in 2025 President Trump removed a number of presidentially appointed IGs without providing notice to Congress. See CRS In Focus IF11546, Removal of Inspectors General: Rules, Practice, and Considerations for Congress, by Ben Wilhelm.
5 U.S.C. §415(c) and (e). Differences arise over who is considered the "head of the agency" in a DFE. The agency head may be (1) an individual serving as the administrator or director or as spelled out in law (e.g., the Archivist of the United States in the National Archives and Records Administration); (2) the chairperson of a board or commission, a full board, or council as specified in law (e.g., the National Council on the Arts in the National Endowment for the Arts); or (3) a certain supermajority of a governing board. See 5 U.S.C. §§415(f)(1)-(2) and (4)). For USPS, for instance, the USPS governors appoint the IG.
5 U.S.C. §415(e)(1).
39 U.S.C. §202(e)(3).
For more information on oversight of IGs, see CRS In Focus IF11869, An Introduction to Oversight of Offices of Inspector General, by Ben Wilhelm.
5 U.S.C. §424.
5 U.S.C. §424(c)(E).
5 U.S.C. §424(b)(1).
5 U.S.C. §424(b)(2).
5 U.S.C. §424(d).
5 U.S.C. §424(d)(2).
P.L. 112-239, §848; codified at 5 U.S.C. §419.
P.L. 111-203, §989E; codified at 5 U.S.C. §424 note.
For more information, see Defense Council on Integrity and Efficiency, "Charter," January 16, 2003, https://media.defense.gov/2003/Jan/16/2001711908/-1/-1/1/DCIE%20Charter%20-%20Final.pdf; and CIGIE, "Mission: Disaster Assistance Working Group," https://www.ignet.gov/content/disaster-assistance-working-group.
See CRS Insight IN11343, The Pandemic Response Accountability Committee: Organization and Duties, by Ben Wilhelm.
Published reports, seminars and training, and other resources and services provided by CRS are available at https://www.crs.gov/ (within the legislative branch network). As stated below, public access to certain CRS research products is available at https://www.congress.gov/crs-products.
P.L. 63-127, ch. 141, July 16, 1914; P.L. 79-601, ch. 753, Title II, §203, August 2, 1946, 60 Stat. 836; P.L. 91-510, Title III, §321(a), October 26, 1970, 84 Stat. 1181; 2 U.S.C. §166.
2 U.S.C. §166.
P.L. 115-141; March 23, 2018; 2 U.S.C. §166a.
P.L. 93-344, July 12, 1974; 2 U.S.C. §§601-603.
For a more detailed description of CBO products, see CBO, "Products," https://www.cbo.gov/about/products.
2 U.S.C. §601(d). See also the Congressional Budget Office Data Sharing Act, enacted September 30, 2024 (P.L. 118-89).
P.L. 67-13, June 10, 1921; 31 U.S.C. §702. Renamed by P.L. 108-271, 118 Stat. 811.
31 U.S.C. §716.
GAO publications are available at https://www.gao.gov.
GAO, GAO 2022-2027 Strategic Plan: Goals and Objectives for Serving Congress and the Nation, GAO-22-1SP, March 15, 2022, https://www.gao.gov/products/gao-22-1sp.
GAO, "Yellow Book: Government Auditing Standards," https://www.gao.gov/yellowbook.
GAO, "Recommendations Database," https://www.gao.gov/reports-testimonies/recommendations-database.
GAO, GAO's Congressional Protocols, GAO-17-767G, July 17, 2017, https://www.gao.gov/products/GAO-17-767G.
CRS Report R42072, Legislative Branch Agency Appointments: History, Processes, and Recent Actions, by Ida A. Brudnick, pp. 6-7.
S. Rept. 95-170, 95th Cong., 2nd sess. (1978) at 84.
P.L. 95-520, §§701 et seq., 92 Stat. 1824, 1875 (1978), codified principally in 2 U.S.C. §§288 et seq.
2 U.S.C. §288c. For further discussion, see U.S. Congress, Senate, Riddick's Senate Procedure: Precedents and Practice, 101st Cong., 2nd sess., S.Doc. 101-28 (GPO, 1992), pp. 1236-1247, https://www.gpo.gov/fdsys/pkg/GPO-RIDDICK-1992/pdf/GPO-RIDDICK-1992-127.pdf.
2 U.S.C. §288d.
2 U.S.C. §288e.
2 U.S.C. §288g.
2 U.S.C. §288g(c). For examples of activities conducted by the Office of Senate Legal Counsel under this authority, see Riddick's Senate Procedure, pp. 1245-1246.
The procedure for directing the Senate legal counsel to bring a civil action to enforce a subpoena is detailed in statute. See 2 U.S.C. §§288d; 28 U.S.C. §1365.
2 U.S.C. §§288b(d)(2), 288f.
2 U.S.C. §288g(a)(5)-(6).
2 U.S.C. §288(a)(2).
House Rule II, clause 8 (119th Congress).
CRS Report RS21665, Office of Management and Budget (OMB): An Overview, coordinated by Taylor N. Riccard, pp. 1-2.
For more detailed information on OMB, see CRS Report RS21665, Office of Management and Budget (OMB): An Overview, coordinated by Taylor N. Riccard.
This includes "apportioning" agency funding by time period, function, and/or program to ensure that appropriations are not exhausted prematurely. In 2025, statutorily required publication of these apportionments was temporarily halted by OMB but subsequently resumed following a July 2025 court order. See CRS Insight IN12538, Office of Management and Budget (OMB) Reporting on Apportionments, by Dominick A. Fiorentino and Taylor N. Riccard.
P.L. 104-13, 44 U.S.C. ch. 35.
P.L. 104-106, 40 U.S.C. §§11101 et seq.
OMB, "1. Purpose," in Circular A-19, https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-019.pdf; and CRS Report R44539, Statements of Administration Policy, by Meghan M. Stuessy.
See CRS Report RS20268, Agency Justification of the President's Budget, by Michelle D. Christensen.
OMB, Preparation, Submission, and Execution of the Budget, Circular A-11, §22.6, August 2021; CRS Report RS20268, Agency Justification of the President's Budget, by Michelle D. Christensen; and CRS Report RS21665, Office of Management and Budget (OMB): An Overview, coordinated by Taylor N. Riccard.
U.S. Department of State, "Non-Governmental Organizations (NGOs) in the United States," January 20, 2025, https://www.state.gov/bureau-of-democracy-human-rights-and-labor/releases/2025/01/non-governmental-organizations-ngos-in-the-united-states.