AuthorSlack, Kevin M.

INTRODUCTION 128 I. THE CONSTITUTIONALLY CRITICAL ROLE OF CONGRESSIONAL OVERSICHT 135 A. Why Oversight Is Important 135 B. Congress's Constitutional and Statutory Powers of Oversight 139 C. Executive Privilege 143 D. Executive Branch Resistance to Congressional Oversight 145 1. Reagan Administration EPA and a Democratic House: The Anne Gorsuch Affair 146 2. Obama Administration Department of Justice and a Republican House: Fast and Furious 149 3. Trump Administration Commerce Secretary and a Democratic House: The Citizenship Question on the Census 151 II. ENFORCING OVERSIGHT 152 A. Congress's Enforcement Toolkit: A Problem of Incentives 152 B. Targeting Appropriations Sanctions to Noncooperation: Oversight Riders 157 1. The Section 713 Rider 158 2. Subpoena Rider 162 4. Oversight Riders and Executive Privilege 167 5. Effects Across the Agency Hierarchy 169 C. The Constitutionality of Oversight Riders 170 D. Objections: Riders and the Eilibuster 175 III. APPROPRIATIONS AND UNDERENFORCED GOOD GOVERNMENT NORMS 178 A. Political Activity 179 B. Ethics 181 C. Transparency 184 CONCLUSION 186 INTRODUCTION

The executive branch repeatedly thwarts Congress's efforts to engage in oversight of its administration of the laws. Consider a snapshot from just the past two years:

  1. A House oversight committee sought information from the Department of Justice and the Department of Commerce about the citizenship question proposed for the 2020 Census. (1) After the administration declined to permit the testimony, (2) the House held two cabinet officials in contempt, (3) and resorted to civil litigation to enforce their finding of contempt. (4) The enforcement of contempt remained tied up in the D.C. federal courts until after the November 2020 election. (5)

  2. A House armed services committee sought the testimony of top civilian and military leaders of the Department of Defense concerning the use of the military in response to nationwide protests, but none were made available to testify. (6)

  3. The House subpoenaed Defense Secretary Mark Esper to testify regarding the administration's decision to withhold military aid for Ukraine. (7) Secretary Esper initially promised that the Pentagon would "do everything [it] can to respond to their inquiry," (8) but he later reneged and did not appear. (9)

    Although the level of executive branch resistance to congressional oversight was particularly extreme during the Trump administration, the basic problem extends well beyond it. (10) The executive branch has long been playing constitutional hardball in response to Congress's efforts at oversight--and winning.

    These clashes follow a familiar pattern. A House or Senate committee requests the testimony of an executive official and related documents. Sometimes negotiations ensue over the scope or terms of the testimony and documents to be produced. Sometimes the executive simply stonewalls. After a period of delay, a House or Senate committee then issues a subpoena. The executive official continues to resist, almost always asserting that executive privilege protects the matter from disclosure. With the pressures on Congress, the initial refusal to comply with a congressional subpoena often effectively ends the matter in a stalemate in which Congress has not obtained the information it sought. In highly charged cases, Congress finds the official in contempt. Regardless of whether the official was held in contempt, when the stakes are high enough, the House or Senate resorts to initiating a civil lawsuit to seek an injunction to enforce compliance with its subpoenas. After often lengthy delays common in litigation, the congressional committee's investigation may or may not produce a judicial order requiring executive branch officials to testify or disclose information.

    In this predictable back-and-forth, the executive branch has a trump card on disclosure to Congress: the assertion of executive privilege effectively forces the House or Senate into civil litigation. Congress, like any other civil litigant frustrated by its adversary's noncompliance with discovery requests, often backs down. Moreover, for the executive branch, delay in disclosure can be a win. A subpoena only has force for the session of Congress that authorizes it," and absent a sense of urgency among courts, competent counsel can delay the issuance of a final, enforceable order for the year to eighteen months often necessary to avoid compliance. This delay can undermine institutional and direct democratic accountability. (12) A delay beyond the current session of Congress may enable politics in the House or Senate to shift enough to undermine the value of the information in crafting reform legislation or to sideline demands for the requested information altogether. On a more fundamental level, a delay that extends beyond an election undermines voters' ability to hold federal politicians accountable for their actions based on the withheld information.

    The motivating concern of this Article is the loss Congress and the public suffer when Congress is not able to obtain subpoenaed documents and testimony in a timely manner. The loss is significant. Congress has broad, constitutionally recognized, statutorily authorized, and practically critical powers to investigate the executive branch's administration of the law. (13) The capacity to effectively investigate plays a critical role in our constitutional scheme. To legislate, to decide how to spend the moneys collected in the Treasury, to decide who should be impeached, Congress needs information. It needs information about what is going right and wrong in our society, economy, and in relation to other nations. It needs information about what existing federal programs and activities are succeeding in accomplishing the mission congressional statutes have set for them, and the causes of failures and setbacks. It needs information about the performance of executive branch officers to ensure public confidence and compliance with federal laws. This simple logic justifies broad powers of congressional investigation, has been endorsed by the Supreme Court, (14) and has been reflected in statutes organizing Congress's oversight powers. (13) Throughout our history, congressional investigations have played a critical role in bringing to light problems in our government and the path forward. (16)

    The problem of congressional oversight is a symptom of a larger weakness in our system of separation of powers. As Richard Pildes and Daryl Levinson argue, the interaction between the branches is better described by looking at the separation of parties than the separadon of branches. (17) When institutional loyalty is subordinate to party loyalty, enforcement of congressional oversight powers will frequently be a function of whether the President is from the same party as the house of Congress investigating. When government is divided by parties, the executive branch effectively abandons its role in enforcing contempt of congressional subpoenas. Political polarization has exacerbated this dynamic. (18) In response, Congress has therefore turned to the courts, with very poor results.

    Congressional oversight need not remain stuck within its current pattern of congressional request--executive branch objections--congressional subpoena--stalemate--executive privilege--civil litigation--mootness arising from delay. Congress can engage in constitutional hardball as well. Indeed, it is time for Congress to be more creative and more aggressive in developing solutions that do not depend upon the courts, "One of Congress's main tools to push back at such presidential unilateralism," as Gillian Metzger observes, "is its control of the purse." (19) In particular, this Article makes the case that Congress can and should use its appropriations power (20) as a tool to force compliance with its request for information from the executive branch. The Article defends doing so by calling attention to a class of appropriations riders that target the executive branch's obstruction of congressional oversight. We call these oversight riders. The basic idea of an oversight rider is to deny the executive branch funding for resistance to congressional subpoenas. Executive branch officials cannot lawfully act inconsistent with a limitation Congress has imposed on their funds, (21) and Congress has the power to deny executive officials' salaries during the period of their noncompliance. Executive branch officials typically exercise great care not to contravene the limitations Congress has placed on their appropriations. By attaching appropriations consequences for noncompliance with congressional subpoenas, oversight riders give executive branch officials the kind of ex ante legal incentives to comply that they currently lack.

    We identify two oversight riders. The first denies appropriations to officials who thwart subordinates from communicating with Congress. This rider, identified as the Section 713 rider, (22) has been reenacted in appropriations legislation since the late 1990s, but it remains relatively obscure. It is enforced by a member of Congress requesting that the Government Accountability Office (GAO), a part of the legislative branch, conduct an investigation into the alleged violation. After the investigation, if a violation is found, the GAO directs a clawback of the official's salary; for continuing violations, the clawback can match the duration of the violation. In investigating violations of the Secdon 713 rider, the GAO has acted promptly and found liability on two occasions. Structurally, the Section 713 rider suggests a pathway to overcome the obstacles of Congress's more traditional routes to enforcing its oversight powers. It creates a personal incentive for the official to comply, without requiring the involvement of the Department of Justice or the delay of civil litigation to enforce the subpoena.

    The second oversight rider is one we suggest...

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