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Congress, the President and the Struggle Over Information

November 19, 2007 // 2:00pm4:00pm

The resurgence of congressional oversight in the new Congress is not atypical of divided party government, nor is the resistance of Administrations to providing all the information requested by Congress for its inquiries. Panelists in the Congress Project's Roundtable Discussion on the struggle for information between the President and Congress generally agreed there is always an element of politics involved in investigations of the Executive during divided party government, but it is more important that Congress is doing its job under the Constitution as a coequal and independent branch of government in superintending the operations of government.

Louis Fisher, a 40-year veteran at the Library of Congress and preeminent expert on separation of powers issues, noted there are two popular misconceptions about Congress's prerogatives in having access to Executive Branch information. One is that the requests must be directly tied to a core function of Congress such as lawmaking, treaty ratification, confirmations, or impeachment. And the other is that no oversight takes place during unified party government. In fact, Fisher pointed out, Congress is responsible for appropriating money for the entire government and thus has a responsibility to oversee all its activities to ensure the money is being properly spent. And secondly, President Jimmy Carter's Administration stands as clear evidence that Congress can exercise scrupulous oversight of a president of the same party. However, in the last 30 years, there has been less an institutional sense in Congress of its constitutional role in serving as a check on the Executive. There are numerous explanations for this: shorter work weeks and less time for committee work; more time spent on fundraising; and a partisan environment that does not provide incentives for cooperation across the aisle. Fisher pointed out that Congress has numerous tools available to get information it needs, short of forcing confrontations on contempt citations for failure to comply with subpoenas, including using the appropriations process, resolutions of inquiry, leveraging nominations, and legislative report mandates.

Kristin Amerling, chief counsel for the House Oversight and Government Reform Committee, cited the "dramatic swing" in oversight activity on her committee since the Democrats regained control of the House last January and Rep. Henry Waxman (D-Calif.) became chairman. The Oversight Committee has broad jurisdiction over the entire government and therefore has looked into a wide variety of issues, from Iraq war contracts and false reporting on friendly fire deaths, to the outing of CIA operative Valerie Plame and global warming policies. Amerling said the approach of the committee is first to conduct discussions with the Administration over documents needed by the committee, and lastly using subpoenas for information when such negotiations fail.

Larry Halloran, minority deputy staff director on the same committee, agreed that subpoenas and contempt citations should only be a last resort. He disagreed with the charge that little or no oversight occurred during Republican rule in Congress (the subcommittee he then worked for under Chairman Chris Shays (R-Conn.) was one of the most active oversight panels in the House). Partisan motives and tensions are always present regardless of which party controls which branch, he said. Two of the problems in getting needed information in a timely way is "we are stuck with a host of Cold War ghosts," and "we are an analog government in a digital age." He explained that there are staff in the executive branch that do not know how to retrieve electronic files that date back several years. "Information is power, but it is also perishable." Moreover, some things that were once readily available have since been reclassified by the CIA in a turf battle with the State Department.

Additionally, "since 9/11 the Administration has developed a whole new regime of classification markings to make it more difficult to access information. Halloran agreed with the 9/11 Commission that there needs to be a shift in the paradigm setting from "need to know" to "need to share." Congress also needs to "go into the underbrush" to determine what reports that it has mandated of various agencies over the years are really necessary today. Many are meaningless and only saddle the bureaucracies with busy work.

Randolph Moss, former head of the Office of Legal Counsel in the Clinton Administration Justice Department, said the Framers would be proud of the battles between the branches today which they would consider a sign that the system is working as intended. You can see the branches coming into conflict on a daily basis over requests for information—-trying to negotiate terms agreeable to both. President Washington understood when he received the first request for information from Congress that "he would be setting a precedent which is still part of our constitutional fabric today." Moss said there is an attitude in Congress that it is free to ask for anything, regardless of whether it is tied to any core constitutional function, whereas the Executive Branch demands to know the relevancy to a particular piece of legislation or some other function of Congress. Executive privilege claims by a president should be a last resort in the struggle for information, not the first, just as subpoenas and contempt citations should be Congress's last resort. The Courts, when confronted with these impasses have basically told the Congress and President, "you go back and work it out among yourselves; don't expect us to settle your fights." This "political question doctrine" has served our system well in forcing the branches to resolve their differences.

A roundtable of over 20 current and former congressional and executive branch staff, area political scientists, and journalists, talked at some length as to whether there was a real breakdown in the oversight performance of Congress between 2001 and 2006 under unified party government, and whether it is actually being reversed today. Some were careful to distinguish between sensational investigations into today's headlines versus the less dramatic and less newsworthy programmatic oversight that takes place quietly in many subcommittees of the House and Senate. Those who felt the latter was more important in the long term to the soundness of the government lamented that it is not being done to the same extent it once was, either by the appropriations committees or the authorizing committees. The question of whether Members and congressional staff have the same sense of institutional loyalty and responsibility as in the past was also a matter of some discussion. There are still plenty of people who feel strongly about the role of Congress, but they don't seem to stay around as long as before. Congress is losing its institutional memory, some concluded.

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