For the sheer amount of resources, ramifications, and rhetoric involved in Congressional hearings, the investigation process itself is still shrouded in mystery to the average citizen. The outcomes – budget authorizations, impeachment, and appropriations – are often a matter of public record once the investigation is over, but the proceeding itself may have little transparency. For better or worse, pending investigations require a degree of secrecy to protect the parties involved and the sensitivity of the subject matter. Yet, for inquiring minds that wish to understand the process better, one need look no further than accounts and transcriptions of previous investigations. Gina Yannitell Reinhardt uses such history to explore and explain the process of Congressional oversight.
When it comes to Congressional investigations, the primary bodies that are responsible for oversight are the Senate Homeland Security and Government Affairs Committee (HSGAC) and the House Committee on Oversight and Government Reform (COGR). The Constitution and legal precedent have given investigative power to Congress as a whole, but the Senate and House of Representatives have delegated that power to specific committees, and to subcommittees within those. In total, there are 46 committees and approximately 169 subcommittees, 17 of which work in an oversight and/or investigatory capacity (Reinhardt, 2008). Still, this only further confounds the issue for those unfamiliar: who are the actual decision makers and from where does the direction for the investigation come?
The answer resides in the structure of the various committees and roles that are present elsewhere in Congress. Members of Congress themselves are at the top of the chain in a committee or subcommittee; they hold either the title of chair or ranking minority member. Both the chair and the ranking minority member have the ultimate say in what a committee staff will investigate. After the members of Congress, the most powerful personnel in a committee staff is the staff director or chief counsel. This role is reserved for a person who communicates directly with the chair or ranking minority member and serves as the lead decision maker within the committee office. It is the staff director’s job to ensure the staff are utilized according to their proficiencies.
The autonomy and privileges granted to the chair, ranking minority member, and staff director are responsible for most of the leeway in an investigation. Indeed, the preferences and interests of these individuals shape investigations outright, though other factors certainly temper that freedom. However, this means that from committee to committee, the methodologies may vary greatly as they are so dependent on the actual staff involved. Due to this discrepancy, the abundant number of potential topics, and the amount of agencies within each committee’s jurisdiction, there are many possibilities at any time regarding what an investigation will center on and how it will unfold.
The two greatest influences affecting a committee or subcommittee are therefore its decision-makers’ inclinations and its legal jurisdiction. The scope of jurisdiction is determined by the chamber who appoints the committee. Typically, a committee’s jurisdiction is based on topics of relevance. For example, the Senate Armed Forces Committee has jurisdiction to investigate matters relative to the Department of Defense, the Army, the Navy, the Air Force, and the maintenance and operation of the Panama Canal, among other interests (United States Senate).
Within a committee’s jurisdiction, its power to investigate is substantial. Investigatory resources can be used to look at the private sector, non-profit organizations, and individuals. Due to the hierarchy of power, this means that a longstanding chair or ranking minority member might shift the focus of a committee to suit his or her specific agenda. For example, John Dingell served as the chair on the House Energy and Commerce Committee for over 15 non-consecutive years. He stated that his interest for the committee at one point consisted mostly of investigating the Bush administration’s handling of port security, the Medicare prescription drug program, and Dick Cheney’s energy task force. One of his most noteworthy affairs dealt with investigating the invention of a blood test for AIDS in relation to the National Institutes of Health (Crewdson, 1991).
After the decision makers determine which route the investigation will go, investigators are advised by staff directors as to which information they will collect. The investigative staff has numerous resources at their disposal, including three analytical government offices: the Congressional Budget Office, the Congressional Research Service, and the Congressional Accountability Office. Between these offices, hundreds of phone calls are answered each day to provide data, estimates, and potential outcomes relative to the issues of many congressional committees.
The committees themselves have the power to subpoena documents and information pertinent to their investigations. This power is granted separately depending on whether the committee resides under the Senate or House of Representatives, however a quorum – or legal majority – of committee members or the expressed consent of both the chair and ranking minority member are required prior to issuing any subpoenas. Two exceptions are the chairs of the Senate Permanent Subcommittee on Investigations (PSI) and the COGR – these individuals have been granted unilateral authority to issue subpoenas without consent or approval of other members.
Oftentimes, a subpoena is not necessary to elicit information from individuals or organizations. Many individuals and organizations are happy to tell their stories and provide supporting evidence, especially in light of a pending investigation and therefore the possibility for redress. Documents prove to represent the best source for accurate data in many cases, as written records are found for many transactions. The information can ultimately be found in many places: from interviews, documents, transcriptions, hearings, and elsewhere. Hearings are useful because they can confirm the truth in any given situation through pointed questions and a variety of testimonies.
Checks and balances extend to this realm as well, and there is a ceiling for the degree of freedom a committee or subcommittee has to investigate any single issue. The matter must relate to the committee’s jurisdiction and have legislative relevance for it to be justified in terms of the functions of Congress. Essentially, committee staff investigate existing legislation to decide if the law is being broken and if adequate legislation is in place or imperative. One additional function of the staff is to determine if misconduct is being punished.
The outcome of an investigation can manifest in different ways. The hearing itself is one of the most visible aspects of an investigation and serves to establish the legal justification while extracting evidence and creating basis for future legislation. Usually the beginning of such a hearing will contain opening statements from the chair and ranking minority member, whereupon they may choose to express their personal impetus for pursuing the hearing. After these opening statements, panels of witnesses are questioned, with each panel typically composed of up to five witnesses. Members of committees are given a limited time to question witnesses, while senior members may have additional time. The chair decides how stringent the panel must adhere to these time limits.
Another byproduct of a hearing is a committee report. Many committees will release updates or internal memos before, during, and after hearings. Some of these reports serve to simply update the staff of new findings, while others can be expansive and inclusive documents hundreds of pages long. The larger documents usually serve a different purpose and act as platforms to launch new legislation and propagate regulatory change. A good example of such regulatory change would be the Sarbanes-Oxley Act, which was introduced as a result of the Enron scandal and a series of hearings which took into account over two million pages of documents and over 100 witnesses. Finally, some hearings are sought solely to alert others of a particular issue. A particularly powerful example of government is when a hearing is held the same day that a relevant bill is launched, this gives the public an opportunity to quickly learn about an issue and what is being done to correct it.
Sometimes, an investigation reveals that a hearing is unnecessary. In this scenario, the committee will perhaps write a letter or convene a meeting between other members of Congress and agency staff. Another potential outcome is that an investigation reveals criminal activity, in which case Congress refers the evidence to regulatory agencies that can prosecute: the FBI, IRS, and FEC.
As Reinhardt properly pointed out, the reality is that the power to direct investigations lies in the hands of the senior members of Congress. This power translates to the ability to effect regulatory change, improve government operations, and expose wrong-doers publicly. These representatives have the resources and connections to exercise tremendous influence upon investigations and their consequences. The author’s conclusion is that thorough research of investigations can better our decision making, the investigatory process, and the separation of powers in government.
I agree with the author when it comes to analyzing investigations and their conductors. One need not look very far before finding an example of a politician who has vested interests and resides on such a committee. An example would be the previously mentioned John Dingell, long-time chairman of the House Energy and Commerce Commitee. Three of his top four campaign contributions during the year of 2006 were General Motors, Ford Motor Co., and DaimlerChrysler (Federal Election Commission, 2007). Some of his political adversaries suggested he had a conflict of interest when the bailout recipients included his wife, a more than thirty-year employee of General Motors and former lobbyist. Over time, Dingell pushed for over 5 bailouts for General Motors, records show (Kindy & O’Harrow, 2010).
For reasons of conflict-of-interest and excessive power, I also believe it is important that we thoroughly examine investigations and their key decision makers. Investigations are a powerful source of legislation and precedent in regulatory change, so it should follow that we critically examine that process and strive to balance it. I think on the whole we benefit greatly from the appointment of these committees and subcommittees, but that we need regulation and oversight even into this process. Checks and balances must extend to every level of government to properly extinguish corruption.
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1.Reinhardt, G. Y. (2008). An “i” on congress: The process and products of congressional investigation. Cambridge Journals, 41(03), 666-669. doi: 10.1017/S1049096508340931
2.Crewdson, J. (1991, September 22). France rethinks deal of aids test. Chicago Tribune, Retrieved from http://articles.chicagotribune.com/1991-09-22/news/9103120013_1_french-virus-aids-test-pasteur-institute
3.U.S. Congress. Permanent Subcommittee on Investigations of the Committee on Government Affairs. 2001. Role of U.S. Correspondent Banking in International Money Laundering. 107th Cong., 1st Sess. Retrieved from: http://www.gpo.gov/fdsys/pkg/CHRG-107shrg71166/pdf/CHRG-107shrg71166.pdf
4.U.S. Congress. Permanent Subcommittee on Investigations of the Committee on Homeland Security Government Affairs. 2006. Tax Haven Abuses: The Enablers, the Tools and Secrecy. 109th Cong., 2d Sess.
5.Federal Election Commission. (2007).Top 20 contributors. Retrieved from http://www.opensecrets.org/politicians/contrib.php?CID=N00001783&cycle=2006
6.Kindy, K. & O’Harrow, R. (2010, January 11). Dingells and gm illustrate limits of congressional conflict-of-interest rules.Washington Post, Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2010/01/10/AR2010011002793.html?sid=ST2010011100151