Congress lost several of its titans of aggressive, bipartisan oversight and investigation at the end of last year: the likes of Carl Levin, Tom Coburn and George Miller. Analysts say this continues a trend that, with the loss of tough questioners such as Henry A. Waxman and John D. Dingell, amounts to a brain drain for an art that has been on the decline since the 1970s.
It is not, they predict, a trend likely to turn around in a congressional term where the presidency will be up for grabs, with a GOP-controlled House and Senate and a Democratic incumbent as commander-in-chief.
“If you like oversight, you're going to get it, but it might not be the oversight you like,” says David C.W. Parker, a Montana State University political science professor who co-authored a 2013 study of congressional oversight.
Yet while that particular brand of muscular oversight that’s light on politics might be in shorter supply until after 2016, it isn’t necessarily without hope.
There’s a new generation with freshly acquired committee gavels, including Republicans Jason Chaffetz of Utah at House Oversight and Government Reform, and Bob Corker of Tennessee at Senate Foreign Relations, who might be ready to step in. And there are still some standard-bearers around — Senate Armed Services Chairman John McCain of Arizona, for instance — in new positions of authority.
What’s more, independent efforts are afoot to bolster oversight from the outside, some of them drawing on the talents of recently departed Hill leaders. Levin, for instance, is exploring ways to strengthen oversight.
“This is not the Congress of the 1970s that brought about tremendous reforms in the executive branch through serious and diligent oversight work,” says Justin Rood, a former investigator for Coburn and now leading one of the independent efforts at the Project on Government Oversight.
Still, Rood says, “We’ve been heartened by the comments and actions from folks like Chairman Chaffetz and others saying the right things and doing the right things to suggest they want to pursue oversight as a collaborative effort with Democrats.”
Leaving a Little Overhead
Chaffetz has gone to lengths to distance himself from his predecessors, most notably the combative California Republican Darrell Issa, even removing Issa’s portrait and those of other past chairman from the committee’s hearing room, although he maintains it was no slight against them.
Nonetheless, Chaffetz recently got his first taste of friction with the opposite party at a markup establishing rules for his panel, rules that Democrats harshly criticized as the ongoing “Issa-tizing” of the committee and the House as a whole.
“We're going to be aggressive; we're not going to mince words. I hope it ends up being as bipartisan as it can,” Chaffetz says. “It's imperative that we get to the truth. I think if we can avoid making it too personal with other members of Congress and make sure we don’t attack their motivations, all will be good. We’re going to tackle issues that the Democrats aren’t going to like. I hope at the end of that process, they’ll say we were tough but fair.”
The Congresses of the 1970s marked a departure point for oversight and investigations, Parker says. The landmark Watergate investigation didn’t begin as a bipartisan one, and only ended that way once Richard Nixon’s political fortunes sank.
However impressive Congress’ work was on Watergate in demonstrating the value of stiff, bipartisan oversight, it also demonstrated to aspiring politicians that rooting out scandal could be a great way to seize the spotlight, says Parker.
Parker’s research clearly suggests that when there is divided government, the quality of oversight decreases even as the quantity of it increases. That tendency is greater in the House than in the Senate, with more investigations overall, but shorter ones.
In divided government, Parker says, “they prosecute the other party, essentially. They engage in politics by other means. If you think about oversight in terms of good government, that’s not necessarily what's happening. Conversely, if you flip it around, unified government oversight leads to problems getting swept under the rug.”
“Bipartisan” and “aggressive” are sometimes difficult to combine. For some of the pockets of bipartisan oversight in Congress in recent years, such as the House Intelligence Committee, one criticism has been that Republicans and Democrats have been too sympathetic toward the agencies they oversee.
Some of the issues might be structural. Former aides to a special Senate committee that investigated intelligence abuses in the 1970s, better known as the Church Committee after its chairman, Frank Church, D-Idaho (1957-81), recently came together for a New York University report that called on Congress to examine its own oversight.
“The Senate Intelligence Committee’s five-year inquiry into the CIA’s abusive detention and interrogation practices provides a striking example of the diligence Congress can apply in meticulously scrutinizing covert government activities, and preparing a report suitable for public release,” the report states.
“But it also exposes its limits. The summarized report details how the CIA successfully frustrated oversight of its torture program for several years by refusing, delaying, or inappropriately limiting congressional briefings, and providing incomplete, inaccurate, and misleading information to its overseers.”
A Vanderbilt University study last year concluded that Congress has diluted its own influence by having too many committees overlapping in their oversight of specific agencies.
McCain says congressional oversight hasn’t gotten better during his time in office. “Overall, it’s worse, of course,” he says.
Carrying the Torch
McCain is a member of the old guard, but he is joined by some newer faces among committee leaders who could carry the torch of aggressive, bipartisan oversight and investigation.
McCain and the top Democrat on his committee, Jack Reed of Rhode Island, point to a deeply ingrained culture at Senate Armed Services, with former leaders such as Levin and Virginia Republican John Warner.
“It's a continuity, because fortunately over many years under Democratic and Republican chairmen, it's been a bipartisan committee,” McCain says. “On the Armed Services Committee we have this long tradition. In some ways it would be viewed by members on both sides as a tremendous breach if we didn't maintain that.”
Says Reed: “In many of the efforts, Senator Levin and Senator McCain worked together. You’re looking at someone who’s done serious bipartisan investigation of tough problems, shedding light on problems that wouldn’t otherwise be discovered.”
Chaffetz says he admires the approach of Coburn, whom he thinks exemplifies the “tough but fair” philosophy he follows. He even hired a former Coburn staffer, Andrew Dockham, to be his general counsel.
While on the Oversight and Government Reform Committee, Chaffetz has been at the forefront of digging into matters that annoy Democrats, like the 2012 attack on the U.S. consulate in Benghazi, Libya.
And some of the issues he wants to examine as chairman, such as the 2010 health care law or the Internal Revenue Service scrutiny of nonprofits, are sure to continue annoying them.
But Chaffetz also says his committee is done with Benghazi, now the subject of a separate House select committee investigation. He points to his agreement with Obama on some topics, such as Cuba, and his work with Democrats on other topics, such as prison reform. Last year he did a “district swap” with the panel’s top Democrat, Elijah E. Cummings of Maryland, where they each visited one another back home.
“If you earn a reputation for calling balls and strikes as you see them, I think you gain a lot of credibility. Hopefully I’ve done that through the years,” he says. “I hope the authenticity of my positions is readily apparent and builds bridges rather than blow them up.”
That said, Chaffetz expected the Democratic fight over committee rules because he had talked with them about it in advance. At that Jan. 27 markup of committee rules, Chaffetz refused to give up his unilateral subpoena power. Democrats say Issa abused that authority, which a number of House committees have adopted in 2015 and which has troubled many advocates of bipartisan oversight.
Chaffetz says he intends to consult Democrats on those subpoenas, but wouldn’t relinquish his authority simply to appease Democrats.
Waxman, a member of the departed corps of veteran congressional interrogators, decried the GOP consolidation of subpoena power in a Washington Post op-ed on Feb. 6. “This is an invitation to abuse that diminishes the prospect for responsible congressional oversight,” he wrote. “Unfortunately, this ill-fated move has received virtually no attention.”
Although Chaffetz believes he can work with Democrats on issues such as the Secret Service or the powers of inspectors general, he says that sometimes they won’t be happy.
“I don't want the Democrats to cry foul just because we’re looking at the Obama administration,” he says. “He won the election. He’s the president. We are the check and balance. To do our job under the Constitution, we’re supposed to be asking tough questions.”
Corker, for his part, says a pre-existing relationship with the top Democrat on Foreign Relations, Robert Menendez of New Jersey, will make the oversight better. “Our default position is always to do first everything we can with the minority side,” Corker says, “which is what they did when they were in the majority.”
One of Corker's priorities will be to restore passage of a regular State Department authorization bill, a key vehicle for committee oversight of an agency. “It's essential,” he says. “It's actually, let's face it, one of our primary obligations here. It's really hard to believe we haven't passed one in 13 years.”
Holding to Account
The Project on Government Oversight has previously offered oversight and investigative training to staff members from both parties, but in December it formed a new Congressional Oversight Initiative to expand that.
“We saw that this last Congress, a significant number of congressional oversight leaders retiring from office, and along with that a lot of their staff, which worried us,” says Danielle Brian, executive director of POGO.
The group’s initiative draws on a network of Hill oversight veterans, some of who worked in Congress as far back as the 1980s, Rood says. The program recently produced an analysis of committee rules that it shared with Hill staff members, and plans to offer other services as well.
“It’s not news that in recent years, the legislative branch has struggled to hold the executive branch to account,” Rood says. “We’re trying to keep the flame from dying.”
A lingering question will be whether the caliber of hard-nosed, unbiased investigation will be affected by the 2016 presidential race. “Elections can get in the way, but we can't go into hibernation because there’s going to be a new president in town,” Chaffetz says.
“I would ask the same hard questions whether it was President [Mitt] Romney or President Obama,” he says. “My guy lost. I’m over it and we've got a job to do. We’ve got so many topics to go through. There’s a nearly $4 trillion budget, and with millions of employees somebody is always doing something stupid somewhere.
“I gotta do my job, and they might try to assess motivations, but all I’m trying to do is root out waste, fraud and abuse,” Chaffetz says.