Jury still out on Democratic oversight efforts

When House Energy and Commerce Committee Chairman John Dingell, D-Mich., the living legend of congressional inquiry, spoke at a February 13 oversight hearing on the Health and Human Services Department, his performance was less than riveting.

Dingell kept his eyes glued to a prepared statement that he read in nearly pitchless monotone. He did not pause at key moments for emphasis, nor did he pound the dais. He just read, and when he was done, he put down the statement and barely looked up.

But those who remembered the days when the now 80-year-old dean of the House last chaired the committee 12 years ago knew they had better listen.

"I promise those in charge of HHS and any other department that chooses to deny this committee the information and access to bring proper and needed oversight, as is our responsibility, that they will not succeed," Dingell droned as he wrapped up his statement. "There is an easy way to be investigated and there is a hard way, and I can assure all and sundry, the hard way is not the better way."

With that, Dingell was back. And so are the infamous "Dingellgrams" that his committee sends to federal departments and private corporations alike demanding documents or testimony.

Typical was a March 9 letter to a pharmaceutical executive that sought, among other documents, the names and contact information for all employees involved in a drug study; all e-mails related to the study sent over a 28-month period within the company, to other companies, and to the Food and Drug Administration; and all documents related to meetings with FDA officials. "Please deliver all of the requested records," the letter said, "by no later than two weeks after the date of this letter."

Now that Dingell and his fellow Democrats are again in power on Capitol Hill, such missives carry the implied threat of subpoena.

And Dingell has plenty of company in his drive for tough oversight. In the opening months of the 110th Congress, numerous new House and Senate Democratic committee chairmen have been putting agency chiefs and corporate bosses on notice, both at hearings and in writing. The Democrats have long complained that throughout the years of unified GOP control, congressional Republicans let the Bush administration and its business allies off easy.

"We are not a potted plant, watching the administration function," House Foreign Affairs Committee Chairman Tom Lantos, D-Calif., warned the head of the Agency for International Development on March 8.

Senate Appropriations Committee Chairman Robert Byrd, D-W.Va., a staunch defender of congressional prerogatives, has likewise been banging his gavel loudly. "Congress is not a rubber stamp or a presidential lapdog, obedient and unquestioning," Byrd told the secretaries of State and Defense, and the chairman of the Joint Chiefs of Staff, on February 27. "Oversight, oversight, oversight is among our most important responsibilities, and oversight, oversight, oversight has been lacking for far too long."

The emphasis on oversight has set off a flurry of activity across Washington. Newly hired committee staffers on the Hill are boning up on investigative procedure. Congressional liaisons in the executive branch are begging for more time to respond to chairmen's letters. Reporters are triaging their schedules. (Which of the 11 military-related oversight hearings on March 8 should the defense correspondent cover?) K Street firms have set up congressional oversight practices to coach and assist the government contractors and the executives of health care, energy, financial services, and other firms that are suddenly finding themselves the target of probes. And heads are rolling.

"In just the last three weeks, more people were forced out of their jobs than in the entire prior six years under this administration," House Democratic Caucus Chairman Rahm Emanuel, D-Ill., declared at a March 13 press conference highlighting his party's oversight efforts. Emanuel was referring to the ouster of two generals and the Army secretary that resulted from the scandal over veterans' health care at Walter Reed Army Medical Center, plus the resignation of Attorney General Alberto Gonzales' chief of staff because of his role in the firing of eight U.S. attorneys.

Although the high-profile clashes that Democrats orchestrated in recent weeks have been making headlines -- and making Republicans squirm -- they are also fraught with potential policy consequences and political peril for all involved.

Will the oversight effort produce better government and reduce corporate wrongdoing? Or will it unfairly smear those caught up in the web of gotchas? Will hearings and investigations improve accountability, or reduce public trust in government? Will aggressive tactics paint Democrats as responsible leaders or as hatchet-wielders? Will proper checks and balances be restored in Washington, or will the partisan divisions only deepen?

"Much oversight is bad, unjustified, and political," Douglas Cox, a former Justice Department official in the Reagan and George H.W. Bush administrations, said at a February 22 Federalist Society luncheon. "Because we've had several recent changes of party control in the White House and in Congress, both parties and both branches have had opportunities to make mistakes and overreach. And unfortunately, both parties have made the most of those opportunities."

The Political Imperative

The Constitution does not explicitly give Congress oversight responsibility. But it does give Congress the power to make law, and over the years, oversight has come to be seen in constitutional law circles as an "implied" power for the legislature. Lawmakers have to know what's going on in order to make law, see how the law is working, and change the law.

To carry out oversight, the legislative branch has given itself the power to subpoena documents and testimony, hold individuals in contempt for failing to comply with congressional demands, and make it illegal to lie to Congress.

Members of Congress use these powers to two ends. One is to try to make good policy. "You get better government -- leaner and meaner, better government" through oversight, said former Rep. Gerry Sikorski, D-Minn., now a partner at the lobbying firm Holland & Knight. He said that Democratic oversight in this Congress could, for example, lead to improved health care for veterans and increased research and development on global warming.

The other purpose, of course, is to try to improve your party's political standing. "You want to show that your party's a better governing party," said former Rep. David McIntosh, R-Ind., a partner at Mayer, Brown, Rowe, and Maw. "You're trying to put points up on the board in that political tug of war between the parties."

Just as congressional Republicans once used their oversight powers to portray President Clinton as unethical, Democrats are now portraying President Bush as incompetent. "When books are written about what's gone on in this administration, I don't know anything positive that's happened," Senate Majority Leader Harry Reid, D-Nev., said during a March 15 press briefing, after ticking off a list of convicted administration officials and management crises.

But, as Cox warned at the Federalist Society luncheon, lawmakers must be artful in handling their oversight responsibilities. If they go too far, they can appear unreasonable, overzealous, and ineffective. Some Republicans contend that Democrats in the 110th Congress have already overreached.

"Their oversight is a bunch of political posturing and demagoguing, and they haven't really changed anything," Sen. Jim DeMint, R-S.C., told National Journal.

Others credit the Democrats for proceeding cautiously in their first few months in power by sticking to a few key issues -- including the Iraq war, veterans' health care, and the U.S. attorney firings -- rather than launching a barrage of investigations on a wide array of topics.

"Speaking as a Republican, I think the Democratic leadership has done a very good job of moving forward with its announced intentions, and doing it thoughtfully and prudently," McIntosh said. "One of the things they've done is not lead with their chin on the oversight, but be thorough about it."

Democratic leaders in both chambers continue to espouse the virtues of ending the "rubber-stamp" Republican Congress -- the same coordinated message they trumpeted during their victorious 2006 campaign.

"We've gone from basically wielding the rubber stamp to wielding the gavel," Emanuel said at the March 13 press conference with other House Democratic leaders. "And when you do that, and you bring accountability, you're bringing confidence back and public trust back, and you protect the public money, taxpayer dollars."

House Majority Leader Steny Hoyer, D-Md., said that in 1993 and 1994, when Democrats controlled Congress during Clinton's first term, the primary government oversight committee held 135 investigative hearings, while the Republicans held only 37 hearings in 2004 and 2005 with Bush in office.

"So this is not about partisanship," Hoyer said. "This is about our constitutional responsibility and the expectations of the American public." In the first two and a half months of the new Democratic Congress, Hoyer said, House committees held more than 100 oversight hearings. "The days of 'see no evil, speak no evil, hear no evil' are over," he said.

Some congressional Republicans, perhaps chastened by the election results, now concede that they could have done a better job of oversight when they held the majority.

"With a change in management in Congress, I think you are going to see a far more robust oversight," Sen. Chuck Hagel, R-Neb., said at Johns Hopkins University's School of Advanced International Studies in December. "This will be a far more engaged, active Congress than we've seen over the last four years."

Other Republicans, however, are defending their track record. Rep. Peter King, R-N.Y., said that he pushed back at the Bush administration on a number of fronts, including the way homeland-security dollars are distributed, when he chaired the House Homeland Security Committee.

"I was the one who led the charge on the Dubai ports," King told NJ, referring to the administration's controversial approval of a Middle Eastern company's purchase of some U.S. port operations. Congressional intervention scuttled the deal.

Still other GOP lawmakers contend that the past cooperation between Congress and the administration was good for the country.

"I think the Republicans and the president worked well together," DeMint said. "If you call that a rubber stamp, I don't think that's fair at all. We've gone from being a Congress that was trying to work on some important things to one that's pretty much all politics right now."

Tenuous Comity

Amid the talk of partisan point-scoring, committees have set up shop to lead the reinvigorated oversight effort in the 110th Congress. And some of them are functioning in a surprisingly bipartisan and cooperative fashion.

At the Senate Homeland Security and Governmental Affairs Committee, for instance, the Permanent Subcommittee on Investigations has a long history of comity and has barely missed a beat because of the turnover in party control.

A Democratic-led investigation over the past six months into credit card practices culminated in a March 7 hearing at which the leaders of three major credit companies agreed to abolish some of the fees that increase consumers' debt. The subcommittee followed that with a March 20 hearing spearheaded by the Republican staff that came out of a three-year investigation of government contractors that cheat on their taxes.

"We work hand in glove," Elise Bean, the subcommittee's Democratic staff director, said at a March 8 discussion of congressional oversight sponsored by Holland & Knight. Chairman Carl Levin, D-Mich., and ranking member Norm Coleman, R-Minn., head the panel like partners, in a relationship similar to the one between the full committee leaders -- Sens. Joe Lieberman, ID-Conn., and Susan Collins, R-Maine -- who went so far as to change the seating arrangement at committee sessions so that Democrats and Republicans now alternate every other seat.

Meanwhile, the Senate Select Intelligence Committee, which was bitterly divided during the previous Congress, appears headed for friendlier times. As the debate over prewar intelligence, warrantless wiretapping, and other hot-button issues escalated in recent years, then-Chairman Pat Roberts, R-Kan., and ranking member Jay Rockefeller IV, D-W.Va., and their staffs worked increasingly separately, with each side accusing the other of partisanship. The relationships were so strained that the 109th Congress failed to approve an intelligence authorization bill for the first time since the committee was formed in the 1970s.

Rockefeller, now the chairman, told NJ that he and new ranking member Christopher (Kit) Bond, R-Mo., have combined their staffs and are committed to working together on a variety of issues, including North Korea and Iran. The administration has also started sharing more information with the committee, Rockefeller said.

"We've raised the stakes a great deal, and we're getting more," he contended, although he still sees room for improvement in information-sharing from the White House. "At the level we want to have and deserve to have, we're not getting it."

Denis McDonough, a senior fellow at the Center for American Progress, a progressive think tank, wrote a report last year bemoaning the partisanship of the Intelligence panel. He is encouraged by the bipartisan efforts of Bond and Rockefeller thus far, he said recently. He also noted that the leaders of the House Permanent Select Intelligence Committee, Reps. Silvestre Reyes, D-Texas, and Pete Hoekstra, R-Mich., issued a bipartisan oversight plan this year.

"They're starting from a much higher degree of cooperation among the two parties on the Hill," McDonough said.

Not every committee is such a bastion of civility, but at least as the 110th Congress gets under way, most chairmen and ranking members are pledging to work hand in hand on oversight and investigations. King, now the ranking member on the House Homeland Security Committee, said that Chairman Bennie Thompson, D-Miss., is doing a good job and that they are working well together.

Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., the chairman and ranking member on the usually partisan Senate Judiciary Committee, seem to agree on issues more than they disagree these days. In February, after meeting with administration officials about a Canadian citizen suspected of terrorism whom U.S. officials deported to Syria, Leahy and Specter appeared in the Senate press gallery to say that they were jointly pushing the administration for more information about the case.

Even at the House Oversight and Government Reform Committee -- where during Clinton's presidency, then-Chairman Dan Burton, R-Ind., issued hundreds of subpoenas in his probes of Lincoln Bedroom sleepovers, fundraising coffees, and other White House activities -- there has been some bipartisanship this year.

Current Chairman Henry Waxman, D-Calif., and ranking member Tom Davis, R-Va., have a history of working well together, such as on the steroids-in-baseball investigation during the previous Congress, which prompted Major League Baseball to change its drug policies.

Waxman is the Democrats' go-to oversight master in the House, since he led a string of blockbuster investigations, including examinations of anti-pollution laws and tobacco marketing, while he was chairman of Energy and Commerce's Health and the Environment Subcommittee from 1979 to 1994.

In a recent interview with NJ, Waxman said that he has had continued good relations with Davis. "So far, we've had bipartisanship in the investigations we've pursued," he said.

Many Hill committee aides involved with oversight and investigations view themselves as nonpartisan, even though they work for politicians. They strive to convey an image of professionalism as they probe agencies and corporations.

"If you went through who was doing these investigations, you would find a whole bunch of former law enforcement -- assistant U.S. attorneys, CIA agents, FBI, DEA agents -- people that have more investigative experience than a lot of people who are commenting on what's happening," Sikorski said.

Public administration experts around Washington are eager for bipartisan investigations. "Bad oversight is excessively partisan oversight for political gain, rather than public value," said Patricia McGinnis, president and CEO of the Council for Excellence in Government. "Good oversight is as much about performance and delivering value to the public, in addition to investigating fraud and abuse and misconduct."

McGinnis cited welfare reform as a policy that benefited from good oversight. After passing the 1996 welfare law, Congress conducted sustained monitoring to determine if the reforms were helping people get jobs and improve their living conditions, she said.

But McGinnis added that congressional oversight aimed at making government work better is too infrequent. "Good bipartisan work practices in the committees are too rare," she said. "It's part of the whole package of how harsh the political decision-making and debate has become in Washington."

Stuck in the Mud

Of course, what appears to be well-intentioned good-government oversight to one party might look like a partisan witch hunt to the other. Donald Wolfensberger, a former chief of staff to the House Rules Committee, said that politicians who claim pure motivations for oversight should not be believed.

"That's baloney," said Wolfensberger, now director of the Congress Project at the Woodrow Wilson International Center for Scholars. "Of course it's politically motivated." In the current Congress? "It's to the political advantage of the Democrats to embarrass the administration."

While purist staffers might prefer to undertake lengthy, nonpartisan probes into questionable corporate or government practices, the fact is that many members of Congress demand quick turnaround for investigations and hearings that feed off scandals in the news.

"Congress is a reactive branch," Wolfensberger said. "People look at the morning headlines and ask their legislative assistants, 'What can I do to address this?' "

Linda Fowler, a Dartmouth College government professor who has studied congressional oversight conducted over the past 60 years, found that lawmakers have generally moved away from in-depth reviews of national issues and toward quick-hit hearings on scandals du jour. Fowler said that congressional oversight -- as gauged by the number of hearings -- increases measurably when one party controls Congress and the other controls the executive branch.

But for a variety of reasons -- among them, the faster news cycle, lawmakers' busier schedules and additional committee assignments, and the centralization of power in the leadership -- oversight these days is less likely to be of the sustained variety that produces lasting change in government or corporate practices.

"Even though we're going to get more oversight because of divided government, I think it's likely to be superficial, reactive," Fowler said. "They're going to react to the headlines. And if Congress is just responding to the headlines, it's going to lose interest as soon as the media headline is focused on something else. There's a strobe effect."

The danger of getting caught up in the reactive cycle is compounded by the natural tendency of overseers to get overzealous.

"Republicans were certainly overzealous when they took over the Congress and we had all kinds of investigations of the Clinton administration," Wolfensberger said. "It was, somebody spits on the sidewalk, you open up an investigation."

It's too early to judge the quality of oversight that Democrats are conducting, Wolfensberger said.

For their part, Democrats on the Hill seem well aware that they will have to show results for their efforts to avoid being labeled as partisan zealots. They are also mindful that their legislative accomplishments may be limited over the next two years -- given the facts that Bush is still in the White House, their party holds only a 51-49 Senate majority, and 2008 presidential-election gridlock is already setting in. So oversight may be the main venue for them to prove themselves.

In the interview with NJ, Waxman asserted that his Oversight and Government Reform Committee is already producing results. At a recent hearing, the Army announced that it would withhold $20 million from a contractor that the committee showed was improperly billing the government.

"We saved the taxpayers $20 million," Waxman said. As time goes on, he added, "I expect it to be a lot more than that."

Waxman said he has three main goals for his committee: root out waste, fraud, and abuse; expose profiteering; and make agencies such as the FDA work better. Interestingly, he said his role model for oversight is none other than Dingell -- whose techniques he called "professional" and "vigorous" -- even though the clashes between the two lawmakers over federal clean-air policy during the Democrats' previous reign is the stuff of congressional lore.

Waxman said he wants to avoid the partisanship and subpoena practices of former Chairman Burton; as of March 21, Waxman had threatened subpoenas but had not served any.

Nevertheless, whiffs of partisanship were in the air at a March 16 Waxman hearing featuring former CIA agent Valerie Plame Wilson, who testified that the White House compromised her covert status for political reasons. Davis complained that the hearing itself was "partisan," adding, "I have to confess, I'm not sure what we're trying to accomplish today."

As a result of the hearing, Waxman sent a letter to White House Chief of Staff Joshua Bolten requesting information about how the White House dealt with the exposure of Plame's identity.

Similar partisan strains have also enveloped the House and Senate Judiciary committees' investigation into the firing of the U.S. attorneys. Both Democrats and Republicans have complained about the way the Justice Department handled the firings -- and lawmakers of both parties called for Gonzales to resign over the controversy.

But Republicans have also complained about whether Sen. Charles Schumer, D-N.Y., should lead the investigation in the Senate. Along with chairing the Senate Judiciary Administrative Oversight Subcommittee, Schumer also heads the Democratic Senatorial Campaign Committee, and he was the first senator to call for Gonzales's resignation. Leahy, the full committee chairman, held off on demands for Gonzales's head.

"I think we're in a very sensitive position here," said Sen. John Cornyn, R-Texas, a key White House ally. "There are Democrats, people like Senator Leahy, who appear to be taking a responsible position, not judging things before they get the facts.... Then you have Senator Schumer, who's making wild accusations and feeding conspiracy theories based on the desire for partisan political gain."

Schumer contends that he is keeping his two roles separate, focusing his investigation on executive branch wrongdoing and not on Senate campaign politics. But Specter, the ranking member who has a good relationship with Leahy, has also expressed concern about Schumer's double duties.

Democrats eager to show results from their oversight can point to the veterans' health care issue. After a Washington Post investigation revealed widespread problems at Walter Reed and prompted congressional hearings, Democrats inserted billions of dollars more for veterans in the supplemental appropriations bill working its way through Congress. On the U.S. attorneys issue, they have persuaded the administration not to oppose legislation restricting Gonzales' power to appoint attorneys without Senate confirmation.

Sikorski contended that the Democrats now in charge understand the proper role of oversight. "Checks and balances are back," he said. "The personalities and expertise of the people involved -- the Dingells, the Waxmans, the Rangels, the Obeys -- you're looking at people who have seen Congress shine because of its oversight successes."

Others are withholding judgment. "The verdict is still out," McGinnis said.

Although Democrats are certainly asserting themselves, they may not turn out to be the vicious junkyard dogs that some observers are expecting. Take the recent House Foreign Affairs Committee hearing at which the new chairman, Lantos, warned the head of AID that Congress is "not a potted plant."

Lantos started off the session by complaining that the AID chief, Randall Tobias, had failed to respond adequately to a letter from committee members. He accused Tobias of "tycoonitis -- people who come from the top of the corporate ladder, who consider congressional suggestions, requests for information, and participation in decision-making as intruding on their turf."

But by the end of the hearing, after Tobias apologized -- and explained that AID had orally briefed the committee but would be happy to respond in writing as well -- Lantos softened his tone. "We think you're doing a fine job," he said. "But I hope you don't mind, we point out severe problems that we detect."