Hostile Takeover

On some days, federal officials must feel torn as to whether they’d rather testify before Congress or undergo a root canal.Danny Werfel had been acting commissioner of the Internal Revenue Service just 34 days when he entered the lion’s den of a tense House Ways and Means Committee hearing room on June 27, 2013.

It was early in the unfolding of what would become the IRS scandal over mishandled applications for tax-exempt status. Werfel—until recently the U.S. controller—was summarizing a report to the Treasury Secretary on actions he had taken to hold malfeasants accountable.

“Who initiated the targeting of conservative organizations for extra scrutiny based on their political beliefs?” thundered committee member Rep. Kevin Brady, R-Texas. “Who have you interviewed in the IRS on that matter?” 

Characteristically calm, Werfel replied that he wanted to explain the structure of his review, that privacy rules prevented him from answering some questions, that he disagreed with some of the questions’ characterizations, and that he wasn’t personally interviewing IRS employees accused of wrongdoing because such questioning must be done by Justice Department professionals.

“Who initiated the targeting of donors to conservative organizations?” Brady persisted. “Who leaked private taxpayer information? You honestly don’t know, Mr. Werfel. This report is a sham. You don’t work for IRS, you work for the American people. The only goal of this report is to silence the voices of people you don’t like. Are you serious about getting to the truth? The Ways and Means Committee is going to get to the truth about the IRS. We will hold them accountable,  including you.” 

Ranking Democrat Sander Levin of Michigan tried to intervene (“Let the witness finish!”) only to be told by Republican Chairman Dave Camp, also from Michigan, that Brady had control over his allotted time. 

Werfel ultimately was rescued by Rep. Jim McDermott, D-Wash., who declared he didn’t think the treatment of the leader of an agency was fair. He told Werfel “to take the rest of my time to answer the questions Mr. Brady kept interrupting you on.”

Welcome to “Congressional Hearingland.” Even when issues are very serious, federal agencies become political targets, their officials made pawns for televised drama, and every back-bench lawmaker jostles for five minutes of opportunity to generate YouTube clips for the voters. 

Some agency representatives are better prepared than others to run the congressional gantlet, arriving with a retinue to help navigate a forum in which witnesses may not pose their own questions, redirect the discussion, or display disrespect, even when treated disrespectfully.

Hence it is surprising that Werfel, who has since left government and is now with the Boston Consulting Group, recalls that particular Ways and Means encounter with equanimity. “I strongly believe in the importance of congressional hearings as part of the process of government,” he says. “It’s really important that there be a mechanism for executive branch officials to answer tough questions and to describe their efforts to resolve problems under scrutiny.”

A veteran of dozens of hearings representing the Office of Management and Budget, Werfel credits now-retired Sen. Tom Coburn, R-Okla., with asking “pointed questions that pointed out important gaps in the way we’d been thinking about a program or agenda,” such as the government’s effort to curb improper payments in Medicare or tax credits. “Congress is good at reminding you that you have to return to basics, and those moments under the lights can motivate you to reshape your program so it resonates with citizens more broadly.”

Werfel says he understands the “expressions of anger at hearings when agencies have made mistakes. But I try to remember that the people asking me tough questions were elected by the American people.” He avoids forming opinions on “the manner of the question—it’s still my patriotic duty to answer to the best of my ability.”

like the founding fathers

Dan Gordon, the Obama administration’s former administrator of the Office of Federal Procurement Policy, has a less generous view. “Some members of Congress are not interested in improving government but in scoring points,” he says. “Some are knowledgeable and ask difficult questions that are legitimate. But others are completely unfair, and are not doing anybody any good because they’re less likely to hear anything useful from the political appointee, who is less likely to say much.” 

Gordon also cites a third category of lawmaker who quickly asks questions just to get them on the record. “They walk in late and shortly afterward disappear, so I would get the distinct impression that they’re not even paying attention to what I’d say,” he says. “They rarely ask follow-up questions, and it feels pro forma, like they’re reading from what the staff wrote. It’s a waste of  everyone’s time.”

But a good hearing, adds Gordon, now at the George Washington University Law School, is often more valuable than a report few will read. “Hearings involve having conversations, not just asking and walking away, and members need to have done their homework and be engaged, not just scoring political points,” he says. “And the fact that it is stressful for the appointee is irrelevant.”

John Palguta, vice president for policy at the nonprofit Partnership for Public Service who spent years at the Merit Systems Protection Board, says he “became reconciled to the fact that as a career employee, being given a hard time by Congress was sometimes just the way government works. It is, in part, an artifact of the checks and balances of our founding fathers.”

Those lofty origins of the balance of power, however, “do not mean that congressional oversight was not occasionally irritating and sometimes antithetical to effective management,” he says. “The latter would occur when the concerns raised in oversight were driven more by ideological or political considerations rather than focused on good governance or operational considerations.” When a lawmaker makes it a principle to oppose, say, a regulatory agency’s mission regardless of the agency’s performance, Palguta says, “that can bring penalties in the form of budget restrictions rather than rewards.”

MAKING ISSUES VISIBLE

Josh Gotbaum, who recently left the helm of the Pension Benefit Guaranty Corporation , stresses that congressional “hearings are called by Congress, their importance determined by Congress, and their tone determined by Congress,” even if all Congress wants to do is make a political point. 

If an agency is controversial, it can be a good “test case,” he adds, with questioning intended to “use them as a canvas to make political points or advance the public debate on where the issue is headed.”

The Consumer Financial Protection Bureau, for example, which Republicans have long vowed to eliminate, “has been much more careful, thoughtful, nuanced and professional” in its testimony than many had feared, says Gotbaum, now at the Brookings Institution.

The advent of an era when federal officials will be greeted at hearings to strains of “Kumbaya” does not appear close at hand. The polarization of Washington, notes former Rep. Tom Davis, R-Va., who chaired the House Oversight and Government Reform Committee, “has been growing for 20 years, since divided government was voted in” with the Republican takeover of Congress in 1994. “Instead of a legislative branch and an executive branch, they’ve basically become Republicans and Democrats, red teams and blue teams, the president’s party and the congressional party,” he says.

“The out-party tends to over-investigate, to try to weaken and embarrass the president,” Davis says, “and when they’re from the same party, they tend to under-investigate, to sweep things under the rug.”

Under President Obama, this twist on the balance of power has “reached new heights and become almost a parlor game,” Davis adds, citing the administration’s “slow-rolling” of documents requested by Congress and an apparent reluctance by the Justice Department to issue subpoenas. 

Under both parties, “agency officials are viewed almost as an appendage of government, especially [political appointees],” Davis says. And if a lawmaker can show that “a program is not working well, he can make the administration look bad by going after whoever is there. Federal officials do have to be held accountable, he allows. But the “all-out warfare does not encourage good people to go into government.”