December 1, 2014
Congressional Oversight and Investigations
Since its inception, Congress has engaged in oversight of
the executive branch which, broadly defined, includes the
review, monitoring, and supervision of the implementation
of public policy. The first Congresses inaugurated such
important oversight techniques as special investigations,
reporting requirements, and the use of the appropriations
process to review executive authority. In modern time,
congressional oversight can occur in virtually any
legislative activity and through a wide variety of channels,
organizations, and structures. These activities range from
formal committee hearings to informal Member or staff
contact with executive officials; from staff studies to
support-agency reviews; and from casework conducted by
Member offices to studies prepared by non-congressional
entities such as commissions and inspectors general.
Major Purposes of Oversight
Legal Authority for Oversight
Political purposes include generating favorable publicity
for lawmakers; winning electoral support from constituents
and outside groups; and rebutting criticisms of favorite
programs or agencies. Oversight occurs in an ever-present
political context in which Congress’s relationship with
administrative entities can range from cooperation to
conflict. Moreover, there are inherent constitutional and
political tensions between Congress and the President even
during periods of unified government. Partisan and interbranch conflicts commonly arise in the oversight context.
Generally, Congress’s power to obtain information,
including classified and/or confidential information, is
extremely broad. While there is no express constitutional
provision authorizing congressional oversight or
investigations, the Supreme Court has firmly established
that such power is so essential to the legislative function as
to be implied from the general vesting of legislative powers
in Congress in Article I.
The Supreme Court on Congressional Oversight
Eastland v. United States Serviceman’s Fund: the “scope of its
power of inquiry...is as penetrating and far-reaching as the
potential power to enact and appropriate under the
Watkins v. United States: the “power of the Congress to
conduct investigations is inherent in the legislative process.
That power is broad. It encompasses inquiries concerning
the administration of existing laws as well as proposed or
possibly needed statutes.”
Oversight and investigative authority rests with the House
of Representatives and the Senate, which in turn have
delegated this authority to various entities, most relevantly
the standing committees of each chamber. Committees only
possess powers that have been delegated to them by their
parent body. Committee investigations must:
be within the committee’s jurisdiction as defined
in House or Senate rules, and
serve a valid legislative purpose.
Once these criteria are met, a committee’s investigative
purview is substantial and wide-ranging.
Oversight is an implicit constitutional obligation of
Congress. There are a number of overlapping purposes
associated with oversight, which can be divided into three
basic types: programmatic, political, and institutional.
Programmatic purposes include making sure agencies and
programs are working in a cost-effective and efficient
manner and fulfilling their statutory mission; ensuring
executive compliance with legislative intent; evaluating
program performance; improving the economy of
governmental performance; investigating waste, fraud, and
abuse; reviewing the agency rulemaking process; and
acquiring information useful in future policymaking.
Institutional purposes include checking the power of the
executive branch; investigating how a law is being
administered; and informing Congress and the public.
These purposes may merit special mention because they
serve to protect congressional prerogatives and strengthen
the American public’s ability to continuously evaluate
executive activities and actions.
Fostering Effective Oversight
Although there may be disagreements as to what constitutes
“quality” oversight, there are a number of components that
appear to foster effective oversight, including
a committee chair committed to doing oversight on
a sustained basis;
the involvement of committee Members, despite
the intensive use of time and resources;
bipartisanship—more is likely to be achieved
when both parties work together rather than
against each other;
an experienced professional staff with
preparation and documentation before hearings;
coordination with other relevant committees of
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Congressional Oversight and Investigations
follow-through to ensure that any committee
recommendations are acted upon.
Helpful, too, is a cooperative Administration. Absent
cooperation, committees may need to use compulsory
processes (subpoena; contempt citation) to obtain pertinent
reports, documents, and the testimony of key witnesses.
Legal Tools Available for Oversight and
There is no single method or set of procedures used to
conduct oversight or an investigation. Historically,
congressional committees appeared to rely a great deal on
public hearings and subpoenaed witnesses to garner
information and accomplish their investigative goals.
Every standing committee and subcommittee is delegated
the authority to issue subpoenas in House and Senate
rules. How subpoenas are issued varies by committee—
some require a full committee vote while others
empower the chairman to issue them unilaterally, or with
the concurrence of the ranking Member.
Executive Privilege can act as a significant limitation on
Congress’s authority to obtain information from the
executive branch. The privilege, which is constitutionally
rooted, has been invoked when Congress asks the executive
branch to produce documents or testimony that reflect
presidential decision making and deliberations that the
President believes should remain confidential. The privilege
is qualified, not absolute; a presidential assertion of the
privilege can be overcome by an adequate showing of need.
Information Access Issues and
Enforcement of Requests for Information
Congressional oversight and investigations can often,
though not always, become adversarial. This is especially
true when the targeted entity, whether a private individual,
corporation, or executive branch agency, has information
Congress considers necessary to its inquiry but refuses to
disclose. In those situations the targeted entity may attempt
to use several methods to avoid disclosure, such as asserting
that the information cannot be disclosed due to a specific
law, rule, or executive decision. Congress has a number of
tools at its disposal to force compliance with committee
In more recent years, congressional committees have
seemingly relied more heavily on staff level communication
as well as other “informal” attempts at gathering
information—document requests, informal briefings, etc.—
before initiating the necessary formalistic procedures such
as issuing committee subpoenas, holding on-the-record
depositions, and/or engaging the subjects of inquiries in
open, public hearings.
Contempt of Congress: the chief means by which Congress can
seek to have an individual punished for noncompliance with a
Limitations on Congressional Authority
Minority Party and Individual Member
Authority to Conduct Oversight
Constitutional limits apply to Congress’s oversight and
The Supreme Court on Oversight Limitations
Barenblatt v. United States: “Congress, in common with all
branches of the Government, must exercise its powers
subject to the limitations placed by the Constitution on
governmental action, more particularly in the context of
this case, the relevant limitations of the Bill of Rights.”
It appears that the following constitutional protections are
applicable to congressional oversight and investigations:
the First Amendment’s protections of speech,
press, religion, and assembly;
the Fourth Amendment’s prohibition against
unreasonable searches and seizures; and
the Fifth Amendment’s right to due process and
privilege against self-incrimination.
Civil enforcement of subpoenas: Congress may seek a federal
court decision declaring that the individual in question is
legally obligated to comply with the congressional subpoena.
The role of Minority Members in the oversight process is
governed by the rules of each house and its committees.
Minority Members are specifically accorded some rights.
For example, when a hearing is conducted in the House, the
minority may, upon the written request of a majority of its
members to the chairman before completion of the hearing,
call witnesses selected by the minority. Ranking Members
and individual Members are not authorized by house or
committee rules to start official committee investigations or
issue subpoenas. Individual Members may seek the
voluntary cooperation of agency officials or private
persons. However, no judicial precedent has directly
recognized a right in an individual Member, other than a
committee chair, to exercise a committee’s oversight
authority without the permission of a majority of the
committee or its chair.
Alissa M. Dolan, firstname.lastname@example.org, 7-8433
Todd Garvey, email@example.com, 7-0174
Walter J. Oleszek, firstname.lastname@example.org, 7-7854
Other rights in the Bill of Rights, such as the Sixth
Amendment’s confrontation right, are inapplicable.
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