On February 13, 2008, a House Committee on Oversight and Government Reform hearing was broadcast on CNN, C-SPAN, and MSNBC. The attention of these networks was not surprising; they typically air congressional hearings and events. What was unusual was that viewers could also find the hearings on FOX, ABC, CBS, NBC, and ESPN. One of the hearing's key witnesses was Roger Clemens, a 24-year veteran of Major League Baseball who holds seven Cy Young awards. For more than four hours that day, Clemens was questioned by the committee regarding his alleged use of steroids (U. S. Congress 2008c).
The cameras were focused on Clemens and his former trainer that day, and when the hearing was over, several viewers turned off the television or changed the channel and thought, “What was that about?” Their confusion was echoed by Lou Piniella, manager of the Chicago Cubs, when he asked, “Shouldn't we be worrying about finding jobs for people or feeding the hungry?” (Nightengale Reference Nightengale2008). Many were aware that Clemens was allegedly tied to steroids, and that he was denying any wrongdoing. But few knew what Congress had to do with the issue, or what the committee intended to accomplish with the hearing. So what was Congress up to?
The Clemens hearing was the publicized portion of an investigation. While confirmations, budget authorizations, impeachment, and appropriations might be familiar aspects of congressional oversight, little is known or understood about investigations, possibly the most labor-intensive oversight mechanism. Who are the key decision makers during an investigation? What determines which issues will be investigated? How are investigations performed, and from where is the information gathered? What are the possible outcomes of a congressional investigation? As confidentiality regulations prohibit the release of information regarding pending investigations, the answers to these questions must be gleaned from published documents and public hearings. This article thus addresses these questions by giving a brief glimpse into a variety of cases, in an initial attempt to move beyond outlines of laws and rules, and to lay the groundwork for future research on congressional investigations as a fruitful and fascinating element of academic inquiry.
Who?
The Senate Homeland Security and Government Affairs Committee (HSGAC) and the House Committee on Oversight and Government Reform (COGR) are the primary oversight and investigations committees in each chamber. While the Constitution and legal precedent have given investigative power to Congress (see Rosenberg Reference Rosenberg1995, 2–5; Kaiser et al. Reference Kaiser, Oleszek, Halstead, Rosenberg and Tatelman2007), Senate and House rules have given these particular committees the power to investigate. Additionally, in Congress there are 46 committees, which currently have 169 subcommittees. By title, 17 of these subcommittees work on oversight and/or investigations (Capitol Advantage 2007).Footnote 1 With so many entities empowered to investigate, who makes decisions about investigation topics, courses, and outcomes?
In any of these committees or subcommittees, one can look to a familiar list of key decision makers. On top of the list are the members of Congress themselves, the full committee chairperson (chair) and ranking minority member (RM), each of which has the ultimate say in what a committee staff will investigate. Below the member of Congress, but at the head of each committee staff, is a staff director or chief counsel, a person who communicates directly with the chair or RM and serves as lead decision maker within the committee office. Within each staff investigators have various areas of focus and expertise. Whether these investigators work on their own or in concert with other staff members, these are the people that make daily decisions about how an investigation will be pursued. Subcommittees parallel this decision-making structure; each has a chair and RM, staff director, and investigators.
The mechanism of decision making and levels of activity differ across committees, and depend greatly on the preferences of the chair and RM. Chairs, RMs, and staff members of the five HSGAC subcommittees, for example, largely make their own decisions about which investigations their subcommittees will pursue and how. In April 2008, the Senate HSGAC's subcommittees held five investigative hearings, while the full HSGAC held four of its own (Senate HSGAC 2008). In contrast, during the same month the House COGR held two hearings jointly with subcommittees and two on its own, while its five subcommittees held a total of 12 hearings independently of the full committee (House COGR 2008).
What?
The two main factors influencing the decisions of a committee or subcommittee to pursue a particular investigation are its legal jurisdiction and its decision makers' interests. Each committee or subcommittee has a jurisdiction set by the rules of its chamber; typically, these refer to agencies and topics of relevance to the committee. The House Science and Technology Subcommittee on Investigations and Oversight, for example, oversees all matters pertaining to research and development in energy, civil aviation, marine and astronautic sciences, and outer space, as well as the National Aeronautics and Space Administration, the National Science Foundation, the National Space Council, and the National Weather Service (House Rule 3 a 5; House Rule X(3)(k)). The Senate Judiciary Subcommittee on Administrative Oversight and the Courts has jurisdiction over court administration and management, judicial rules, creation of new courts, bankruptcy, administrative practices, legal reform, the Department of Justice programs, private relief bills, and the Foreign Claims Settlement Commission (Senate Committee on the Judiciary 2008).
Within jurisdictional limits, however, “a committee's investigative purview is substantial and wide-ranging” (Rosenberg Reference Rosenberg1995, 3). Ultimately, there are so many topics and agencies within a committee's jurisdiction that each staff has to choose from among many investigations it could pursue at any given time. Often these choices are based simply on the interest of the entity's key decision makers. The Senate Permanent Subcommittee on Investigations (PSI), for example, has jurisdiction over the private sector; it can investigate agencies as well as private companies, non-profit organizations, and individuals. Senator Carl Levin (D-MI) currently chairs this subcommittee. In the past 10 years, either as chair of the subcommittee or RM of the minority staff, Levin has directed its focus toward issues regarding financial transparency. Recent investigations on private banking, money laundering, the role of financial institutions in Enron's collapse, tax haven abuses, and abusive credit card practices illustrate the trend.
Investigations also reflect reports from or actions taken by news outlets, congressional entities, or executive agencies. On April 29, 2008, the House Committee on Oversight and Government Reform and its Subcommittee on National Security and Foreign Affairs held a joint hearing regarding a Government Accountability Office (GAO) report entitled Defense Acquisitions: Assessments of Selected Weapon Programs, and invited GAO representatives to testify (Subcommittee on National Security and Foreign Affairs 2008). Senator George Mitchell's Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball, was the stated impetus of the COGR hearing in which Clemens testified in 2008 (COGR 2008).
How?
Once key decision makers have determined what they will investigate, investigators collect information on the designated topic. Investigative staff may utilize the resources of three analytical offices, the Congressional Budget Office, the Congressional Research Service, and the Government Accountability Office, to obtain information and reports on topics of interest. These agencies gather data, provide estimates, forecast outcomes, and analyze issues of relevance to congressional committees. They answer hundreds of calls on a daily basis from staffers throughout Congress.
Committees and subcommittees also have the power to subpoena documents and information pertinent to their investigations (Senate Rule XXVI(1); House Rule XI(2)(m)(1)). In most committees and subcommittees, either a quorum of members or the consent of both the chair and RM is needed to approve the issuance of a subpoena. Once issued these subpoenas are as legally compelling as subpoenas issued by the full chamber (Kaiser et al. Reference Kaiser, Oleszek, Halstead, Rosenberg and Tatelman2007). Two members of Congress have been given unilateral subpoena power: the chair of the Senate PSI, and the chair of the House COGR. These members may issue subpoenas without the consent or approval of other members (House Committee on Government Reform Rule 18 (d); Senate Committee on Homeland Security and Governmental Affairs Rule 5.C.).
While a subpoena compels testimony, many people and organizations are willing to provide information to investigative committees without the necessity of a subpoena. Since it is a felony to lie to Congress, a formal deposition is rarely necessary when conducting interviews, particularly if the interviewee agree to appear voluntarily. Often, individuals are happy to tell their stories and provide supporting evidence. The PSI's 2004 report Profiteering in a Non-Profit Industry: Abusive Practices in Credit Counseling uses evidence from two private citizens to illustrate defects in the consumer credit counseling arena (U.S. Congress 2004).
Often the best way for an investigative committee to uncover the truth is through the analysis of documents. The PSI, in its 2001 hearings on U.S. correspondent banking and international money laundering, presented documents produced by banks, accounting firms, and the federal prosecutions. These exhibits were offered as proof that correspondent banking accounts in U.S. banks have, at times, served as conduits to launder money gained through smuggling, trafficking, and embezzlement overseas (U.S. Congress 2001).
Where?
Whether collected by request or compelled by subpoena, interviews, depositions, and documents come from an array of actors and entities. Among individual citizens and their families; federal, state, and local officials; academics and interest groups; and private corporations, many parties can provide information that might be useful to a congressional investigation. Recent hearings of the House Energy and Commerce Subcommittee on Oversight and Investigations illustrate the types of information these parties can provide.
In its April 2008 hearing “The Heparin Disaster: Chinese Counterfeits and American Failures,” the subcommittee began by presenting testimony of individuals whose family members had been affected by the drug heparin. These individuals illustrated the practical impact of heparin regulation failures on the public. They were followed by compliance and consumer safety officers from the Food and Drug Administration, who informed investigators of the regulatory agency's policies, positions, and actions with respect to the contamination of heparin. Finally, representatives of several drug companies were compelled to testify as to their involvement in the distribution, recall, and corrective action after the issuance of substandard heparin (U.S. Congress 2008b).
In 2007, the subcommittee held a four-part series of hearings on the safety and security of the nation's food supply. IIn those hearings, interest group leaders and state and local officials provided valuable information on a wide variety of issues. Representatives of interest groups such as the Center for Nutrition Policy and Promotion, the American Coalition for Tilapia, and the Food & Water Watch group informed investigators as to their concerns regarding the entrance of pathogens and contaminants into the food supply. Representatives of the FDA's local offices in Kansas City, San Francisco, and Cincinnati testified as to the capabilities of their labs and the shortcomings they face due to a lack of staff (U.S. Congress 2007).
Why?
Limits do exist on the authority of a committee or subcommittee to investigate a particular issue. In addition to fitting within its designated jurisdiction, the investigation must have a valid legislative purpose. As the Supreme Court found in the case of Watkins v. United States (quoted in Rosenberg Reference Rosenberg1995, 3), “There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress … nor is the Congress a law enforcement or trial agency … No inquiry is an end in itself, it must be related to, and in furtherance of, a legitimate task of the Congress.” Within these bounds, committees investigate matters to various ends. Committee staff investigate existing laws to determine whether misconduct is being caught or punished, and whether those laws should be changed or supplemented with new legislation.
Hearings and Reports
One of the most publicized outcomes of an investigation is a hearing. Typically a hearing begins with the opening statements of the chair and RM. These statements often divulge the impetus for an investigation, including any report that may have directed the committee's attention to it, and the personal interests of the member holding the hearing. Chairman Christopher Carney (D-PA), for example, in his opening remarks for the House Homeland Security Subcommittee on Management, Investigations, and Oversight's 2008 hearing on the U.S. Border Protection Program's Project 28, expressed his dissatisfaction with the Department of Homeland Security's failure to appropriately manage contractors and deliver the SBInet intelligence and rapid response system (U.S. Congress 2008d).
After opening statements, panels of witnesses are questioned. Each panel typically consists of one to five witnesses, and in most cases each witness has provided a prepared statement to the committee beforehand. Witnesses typically summarize their statements at the hearing within a set time period, often five to 10 minutes per witness. Witnesses are allowed to be accompanied by legal counsel. Committee members then have the opportunity to question the witnesses. Members that do not serve on the committee holding the hearing may also be given the opportunity to ask questions if they receive permission from the committee beforehand. Typically each member has a limited time to pose questions, such as five or eight minutes. although the chair or RM may have longer, such as 10 minutes. It is up to the chair to determine how strictly to enforce these limits.
Many committees also publish reports before, after, or coincidental with a hearing. Shorter reports describe the basic purpose and findings of the investigation, and can be as short as 10 pages. Longer reports, such as the 2006 report on tax haven abuses issued by the Senate Permanent Subcommittee on Investigations, thoroughly present evidence over the course of hundreds of pages (U.S. Congress 2006). These reports are then used as jumping off points for other courses of action, such as introducing legislation and urging regulatory change.
Regulatory Change
Sometimes a hearing is an end in itself; the committee conducts the investigation and uses the hearing to alert agencies and citizens to the specifics of a particular issue. Other times the hearing is simply a step in an investigation. It may coincide with the launching of a bill. On January 31, 2008, Senator Tom Carper (D-DE) chaired a hearing, “Eliminating Agency Payment Errors,” that addressed overpayments and payment recovery in federal agencies. On the same day, he introduced the Improper Payments Elimination and Recovery Act of 2008 (S.2583), which would change agency regulations to address the problems publicized by the hearing (U.S. Congress 2008a). Both the hearing and the legislation were products of an investigation begun around 2002; releasing them simultaneously gave the public a chance to learn quickly about the issue and the latest attempts to correct it.
As a result of its investigations into Enron's declaration of bankruptcy in late 2001, the Senate held a series of hearings in 2002. The Permanent Subcommittee on Investigations reviewed over two million pages of documents and interviewed over 100 witnesses, and concluded that Enron's board of directors, accounting practioners, and financial institutions were all partly responsible for Enron's accounting deceptions and eventual collapse (U.S. Senate 2002a; 2002b). The work presented in these hearings contributed to the 2002 passage of accounting and corporate reforms through the Sarbanes-Oxley Act.
Before and Beyond Hearings
What happens when an investigation reveals that a hearing is unnecessary? Occasionally, a hearing will still be held at the request of interested parties, as Congressman Waxman stated after the Clemens/steroid hearing, “I didn't particularly want to do a hearing. We held the hearing because Roger Clemens wanted that hearing, because Roger Clemens wanted the chance to speak in public and make his case” (Associated Press 2008).
More often, if a hearing is unwarranted or infeasible, the investigating committee will turn to a report or one of its less-publicized options, such as writing a letter. A letter to an authorizing or appropriating committee might cite evidence learned through investigations to urge increased funding for an agency. Senator Jack Reed's letter to the Financial Accounting Standards Board requests information regarding the agency's progress on achieving financial transparency measures supported by him and the Senate Subcommittee on Securities, Insurance, and Investment.Footnote 3 “Dear Colleague” letters are sent to other members of Congress to support legislation.
When it comes to influencing agency behavior, another option might be to call a meeting between Congress and agency staffs. “The X Agency recently released a report showing severe shortcomings in the provision of citizen services. We called them in to have them brief us about it, and we talked about suggestions for how they could improve things. By the time of the next report, they had implemented some of our suggestions,” said one staffer.Footnote 2 “I'm not saying they did it exclusively because of our interest in the matter, but it never hurts to tell an agency that a Senator has concerns they might be able to alleviate.”
Although Congress cannot criminally prosecute wrongdoers, investigations may result in the referral of misconduct to law enforcement agencies. During PSI hearings on tax haven abuses, the behavior of several tax evaders and those that facilitated their evasion came to light. As a result, their behavior was exposed to not only the public, but also to regulatory agencies such as the FBI, IRS, and FEC (U.S. Congress 2006).
Future Work
How and when does Congress exercise oversight? This article has offered a basic overview of who conducts congressional investigations, how their preferences enter into the investigative decision-making process, and the origins of the information they gather. It has also suggested several possible outcomes of congressional investigations, including regulatory and legislative change, public exposure of wrongdoing, and the improvement of government operations. The oversight Congress exercises depends on these elements, and further examination into investigative processes and outcomes provides several courses of research.
On the process side, an examination of the investigative elements discussed here could provide insight into the differences between House and Senate operations, Republican and Democratic approaches, or majority and minority party strategies. These elements could also be analyzed as variables dependent upon attributes of individual members of Congress, committee structure, or investigative staff. How have investigations changed over time? Has the frequency or subject matter of investigations changed as a result of the relationship between Congress and the presidency, between the majority and minority parties in a given chamber, or between the chambers themselves?
On the outcome side, how has variance in decision makers' preferences or information-gathering tools affected legislation or the regulation of executive agencies? Can we use this information to generate predictions of how future investigators will weigh limited information to make decisions? Searching for answers to these questions would advance the fields of decision making, preference formation, and oversight and the separation of powers, specifically, and to the study of legislative assemblies more generally.
