December 1, 2014
Congressional Oversight and Investigations
Since its inception, Congress has engaged in oversight of
Major Purposes of Oversight
the executive branch which, broadly defined, includes the
review, monitoring, and supervision of the implementation
Oversight is an implicit constitutional obligation of
of public policy. The first Congresses inaugurated such
Congress. There are a number of overlapping purposes
important oversight techniques as special investigations,
associated with oversight, which can be divided into three
reporting requirements, and the use of the appropriations
basic types: programmatic, political, and institutional.
process to review executive authority. In modern time,
congressional oversight can occur in virtually any
Programmatic purposes include making sure agencies and
legislative activity and through a wide variety of channels,
programs are working in a cost-effective and efficient
organizations, and structures. These activities range from
manner and fulfilling their statutory mission; ensuring
formal committee hearings to informal Member or staff
executive compliance with legislative intent; evaluating
contact with executive officials; from staff studies to
program performance; improving the economy of
support-agency reviews; and from casework conducted by
governmental performance; investigating waste, fraud, and
Member offices to studies prepared by non-congressional
abuse; reviewing the agency rulemaking process; and
entities such as commissions and inspectors general.
acquiring information useful in future policymaking.
Legal Authority for Oversight
Political purposes include generating favorable publicity
for lawmakers; winning electoral support from constituents
Generally, Congress’s power to obtain information,
and outside groups; and rebutting criticisms of favorite
including classified and/or confidential information, is
programs or agencies. Oversight occurs in an ever-present
extremely broad. While there is no express constitutional
political context in which Congress’s relationship with
provision authorizing congressional oversight or
administrative entities can range from cooperation to
investigations, the Supreme Court has firmly established
conflict. Moreover, there are inherent constitutional and
that such power is so essential to the legislative function as
political tensions between Congress and the President even
to be implied from the general vesting of legislative powers
during periods of unified government. Partisan and inter-
in Congress in Article I.
branch conflicts commonly arise in the oversight context.
Institutional purposes include checking the power of the
The Supreme Court on Congressional Oversight
executive branch; investigating how a law is being

administered; and informing Congress and the public.
Eastland v. United States Serviceman’s Fund: the “scope
These purposes may merit special mention because they
of its power of inquiry...is as penetrating and far-
serve to protect congressional prerogatives and strengthen
reaching as the potential power to enact and
the American public’s ability to continuously evaluate
appropriate under the Constitution.”
executive activities and actions.

Watkins v. United States: the “power of the Congress
Fostering Effective Oversight
to conduct investigations is inherent in the legislative
process. That power is broad. It encompasses
Although there may be disagreements as to what constitutes
inquiries concerning the administration of existing laws
“quality” oversight, there are a number of components that
as well as proposed or possibly needed statutes.”
appear to foster effective oversight, including
ï‚· a committee chair committed to doing oversight on a
Oversight and investigative authority rests with the House
sustained basis;
of Representatives and the Senate, which in turn have
ï‚·
delegated this authority to various entities, most relevantly
the involvement of committee Members, despite the
the standing committees of each chamber. Committees only
intensive use of time and resources;
possess powers that have been delegated to them by their
 bipartisanship—more is likely to be achieved when both
parent body. Committee investigations must:
parties work together rather than against each other;
ï‚·
ï‚·
be within the committee’s jurisdiction as defined in
an experienced professional staff with investigatory
House or Senate rules, and
skills;
ï‚·
ï‚·


serve a valid legislative purpose.
preparation and documentation before hearings;
Once these criteria are met, a committee’s investigative
ï‚· coordination with other relevant committees of
purview is substantial and wide-ranging.
jurisdiction; and
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Congressional Oversight and Investigations
ï‚· follow-through to ensure that any committee
Other rights in the Bill of Rights, such as the Sixth
recommendations are acted upon.
Amendment’s confrontation right, are inapplicable.
Helpful, too, is a cooperative Administration. Absent
Executive Privilege can act as a significant limitation on
cooperation, committees may need to use compulsory
Congress’s authority to obtain information from the
processes (subpoena; contempt citation) to obtain pertinent
executive branch. The privilege, which is constitutionally
reports, documents, and the testimony of key witnesses.
rooted, has been invoked when Congress asks the executive
Legal Tools Available for Oversight and
branch to produce documents or testimony that reflect
Investigations
presidential decision making and deliberations that the
President believes should remain confidential. The privilege
There is no single method or set of procedures used to
is qualified, not absolute; a presidential assertion of the
conduct oversight or an investigation. Historically,
privilege can be overcome by an adequate showing of need.
congressional committees appeared to rely a great deal on
public hearings and subpoenaed witnesses to garner
Information Access Issues and Enforcement of
information and accomplish their investigative goals.
Requests for Information
Congressional oversight and investigations can often,
though not always, become adversarial. This is especially
Congressional Subpoenas
true when the targeted entity, whether a private individual,

corporation, or executive branch agency, has information
Every standing committee and subcommittee is
Congress considers necessary to its inquiry but refuses to
delegated the authority to issue subpoenas in House
disclose. In those situations the targeted entity may attempt
and Senate rules. How subpoenas are issued varies by
to use several methods to avoid disclosure, such as asserting
committee—some require a full committee vote while
that the information cannot be disclosed due to a specific
others empower the chairman to issue them
law, rule, or executive decision. Congress has a number of
unilaterally, or with the concurrence of the ranking
tools at its disposal to force compliance with committee
Member.
subpoenas.
In more recent years, congressional committees have
Enforcement Mechanisms
seemingly relied more heavily on staff level communication

as well as other “informal” attempts at gathering
Contempt of Congress: the chief means by which
information—document requests, informal briefings, etc.—
Congress can seek to have an individual punished for
before initiating the necessary formalistic procedures such
noncompliance with a subpoena.
as issuing committee subpoenas, holding on-the-record

depositions, and/or engaging the subjects of inquiries in
Civil enforcement of subpoenas: Congress may seek a
open, public hearings.
federal court decision declaring that the individual in
question is legally obligated to comply with the
Limitations on Congressional Authority
congressional subpoena.
Constitutional limits apply to Congress’s oversight and
investigative powers.
Minority Party and Individual Member Authority to
Conduct Oversight
The Supreme Court on Oversight Limitations
The role of Minority Members in the oversight process is

governed by the rules of each house and its committees.
Barenblatt v. United States: “Congress, in common
Minority Members are specifically accorded some rights.
with all branches of the Government, must exercise
For example, when a hearing is conducted in the House, the
its powers subject to the limitations placed by the
minority may, upon the written request of a majority of its
Constitution on governmental action, more
members to the chairman before completion of the hearing,
particularly in the context of this case, the relevant
call witnesses selected by the minority. Ranking Members
limitations of the Bill of Rights.”
and individual Members are not authorized by house or
committee rules to start official committee investigations or
issue subpoenas. Individual Members may seek the
It appears that the following constitutional protections are
voluntary cooperation of agency officials or private
applicable to congressional oversight and investigations:
persons. However, no judicial precedent has directly
ï‚·
recognized a right in an individual Member, other than a
the First Amendment’s protections of speech, press,
committee chair, to exercise a committee’s oversight
religion, and assembly;
authority without the permission of a majority of the
 the Fourth Amendment’s prohibition against
committee or its chair.
unreasonable searches and seizures; and
Todd Garvey, Legislative Attorney
 the Fifth Amendment’s right to due process and
Walter J. Oleszek, Senior Specialist in American National
privilege against self-incrimination.
Government
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Congressional Oversight and Investigations

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Disclaimer
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