AuthorSmith, McKay

Introduction 238 I. Examining Congress's Power to Investigate 241 A. Congressional Investigative Authorities 244 B. The Minority Interest 246 II. Factors Affecting the Conduct of Congressional Investigations 247 A. Timing and Use of Resources 248 B. Investigative Tools 249 III. Creating a New Investigative Framework 252 A. Types of Investigations 253 B. Available Investigative Resources 254 C. Control and Coordination of Investigations 257 IV. Recommendations for Improvement 257 A. Investigative Referrals 258 B. Directing Investigations 259 C. Coordinating Investigations 260 D. Examples of the Referral and Direction Process 260 E. Hearings 262 Conclusion 262 Appendix 1 263 INTRODUCTION

"Everybody thought Hillary Clinton was unbeatable, right? But we put together a Benghazi special committee, a select committee. What are her numbers today? Her numbers are dropping," said House Majority Leader Kevin McCarthy in late 2015. (1) McCarthy backtracked within days stating, "It was never my intention to ever imply that this committee was political, because we all know it is not." (2) Although reasonable minds can differ about the truth and significance of these comments, the political ramifications are less ambiguous. McCarthy had been a rising star in the Republican Party. (3) Many assumed he would be the next Speaker of the House, but in late October 2015, Paul Ryan was elected Speaker--Kevin McCarthy had unexpectedly withdrawn from consideration. (4)

The Select Committee on Benghazi was given a wide-ranging mandate to examine several issues related to U.S. national security. (5) The House of Representatives authorized committee members to "conduct a full and complete investigation... and issue a final report of its findings to the House." (6) Their final report was to include an analysis of "all policies, decisions, and activities that contributed to the [terrorist] attacks on United States facilities in Benghazi, Libya, on September 11, 2012, as well as those that affected the ability of the United States to prepare for the attacks." (7) More importantly, the Select Committee was charged with examining "[i]nternal and public executive branch communications about the attacks," including email communications from Secretary Clinton herself. (8) Thus, while events surrounding the Select Committee's investigation may have negatively affected Repre-sentative McCarthy's political aspirations, the long-term outcome of this congressional investigation could be far more profound. (9) Some would contend that the Select Committee's efforts may have also influenced the results of the 2016 U.S. presidential election. (10)

This Article represents an effort to restore the debate surrounding congressional investigations to its proper context. Recognizing that America's lawmakers intend such proceedings to have a dual impact, fulfilling both political and legislative goals, the following argument attempts to reorient discussion around improving bipartisan cooperation within the legislative branch of government. Moreover, in an attempt to remedy existing deficiencies, this Article makes several recommendations for corrective actions and proposes specific mechanisms designed to reduce waste and increase the overall quality and effectiveness of congressional investigations. Finally, this Article includes proposed legislation intended to harness existing organizational structures and capabilities, while improving the manner in which Congress expends its resources. (11)

While the 2016 presidential election revealed that Americans still have deep political divides, it is imperative that Congress take action to enact new legislation that encourages a bipartisan vehicle for change. This legislation should represent a good-faith effort to demonstrate that America's lawmakers can work together productively. (12) It should reinforce that both sides of the aisle are committed to effective governance. (13) Furthermore, by implementing certain procedural changes designed to improve the efficiency of congressional investigations, Congress can firmly establish that it is committed to the shared interests of all Americans, and to spending our taxpayer dollars in a more conscientious manner. (14)


    The American system of government entrusts Congress with significant responsibility. (15) America's lawmakers are often required to gather facts or conduct investigations as part of the legislative process. (16) Despite the important need for these types of investigations, however, Congress has often demonstrated that it is ill equipped, in terms of both personnel and expertise, to fulfill this weighty responsibility. (17) This Article examines the growing disparity between the need for effective congressional investigations and Congress's continued inability to conduct meaningful oversight. The analysis and recommendations included herein seek to promote efficiencies and economies of scale, while leaving untouched the congressional prerogative to conduct public and private hearings.

    There is little doubt that Congress is best positioned for select types of investigative matters, such as internal ethics investigations. (18) With that point in mind, this Article offers a broad solution intended to aid Congress generally and the committees and subcommittees thereof collectively. The following discussion is in no way exhaustive of every possible investigative tool. For example, the independent counsel is beyond the scope of this Article. (19) Rather, the goal of this piece is to propose a new framework whereby Congress can prioritize investigations, and, more importantly, provide its own appropriated funds on a case-by-case basis to outside entities charged with independently conducting all required investigative tasks. (20) This approach may be especially beneficial in the national security context, where neutral fact finders are essential to identify and remedy specific security vulnerabilities.

    It should be noted that while the funding mechanism proposed in this Article is novel, the actual means by which Congress will delegate its authority to other investigative bodies has been utilized by America's lawmakers for decades. (21) Congress enacted the Inspector General Act of 1978 to ensure integrity and efficiency in government. (22) This act established various offices of inspector general throughout the executive branch charged with conducting internal audits, inspections, and investigations of federal government programs and operations. (23) Moreover, the Government Accountability Office (GAO), a legislative-branch agency created in 1921, is an independent, nonpartisan organization that works directly for Congress. (24) Often referred to as "the congressional watchdog," GAO's mission is to "support [Congress] in meeting its constitutional responsibilities and to help improve the performance and ensure the accountability of the federal government for the benefit of the American people." (25)

    Thus, this Article proposes two distinct investigative models--one that relies on executive-branch investigative agencies, such as the offices of inspector general, and a second model that leverages the oversight mechanisms already in place within GAO. In both instances, Congress will be able to provide additional, spot-appropriations to augment the existing budget of these investigative agencies. (26) In other words, Congress will be able to transfer its own funds--money otherwise used by investigative commissions, committees, or subcommittees--directly to one of these agencies irrespective of their existing budget. (27) This approach will not only incentivize offices of inspector general and GAO to take part in additional oversight duties, it will also provide essential resources these agencies need to conduct high-profile, nonpartisan investigations of government programs or operations.

    To facilitate this framework, the solutions offered in this Article are accompanied by proposed implementing legislation that provides statutory support for each process or procedure not already clearly articulated under the law. (28) This implementing legislation further delineates Congress's ability to coordinate investigations amongst the various offices of inspector general within the executive branch. (29) It also enables Congress to direct GAO to conduct a particular investigation and considers provisions by which GAO can seek use of congressional investigative authorities such as the subpoena power. (30) As described above, the proposed legislation will also include a mechanism by which Congress can transfer appropriated funds to an entity conducting an investigation on its behalf. (31)

    The result will be an investigation that is managed in a more efficient manner and with less bureaucratic waste. Moreover, the ability of America's lawmakers to gather facts in all matters of interest to Congress and the public will be significantly strengthened.

    1. Congressional Investigative Authorities

      Congress's authority to conduct investigations is "inherent in the legislative process." (32) Congressional oversight of the executive branch serves many purposes, such as ensuring compliance with legislative intent, improving the overall efficiency of government, evaluating performance of government programs or operations, investigating alleged abuses by the President and his administration, and protecting individual rights and civil liberties. (33) In order to conduct effective oversight, it is imperative that Congress has the ability to gather facts. (34) However obvious this may seem to us today, it may not have been inherent in the legislative process from its inception. (35)

      To provide historical context to this discussion, the Supreme Court noted in Watkins v. United States that the first judicial challenge to a congressional investigation did not arise until 1881, some ninety-two years after the Constitution was ratified. (36)...

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