hour.

>> the committee will come to order. without objection, the chair is authorized to declare a recess of the committee at any time. i now recognize myself for five minutes for an opening statement. so, article one of the constitution animates every aspect of this committee's work. our hearings have focused on what steps we can take to restore congress to its rightful place as first among coequal branches of government and our recommendations have addressed the various problems and challenges that we've uncovered. from day one, the committee's guiding principle has been to

make congress work better for the american. we have sought to understand how and why congress's ability to uphold its article one powers have been weakened so that we can find meaningful and lasting ways to rebuild capacity and strengthen the legislative branch. today's hearing continues this work. an implicit article one power recognized by the supreme court is fundamental to congressional operations is its power to conduct oversight. since world war ii, under presidents of both parties, the executive branch has expanded tremendously in both size and scope. between 1946 and 1997, an average of eight new agencies were created each year. and while there's no official count of all federal agencies, one recent estimate puts the current total at 278. that's 278 agencies full of policy and budgetary experts charged with carrying out federal law. executive branch expansion, along with huge increases in federal spending have undoubtedly intensified the need for rigorous oversight. there is no question that this boom in executive power tests the policy making authority of congress. the house's 21 standing committees and the senate's 24 do an amazing job but monitoring the work of every agency is a monumental task, and this task is made more difficult when the executive branch slow walks or denies congressional requests

for information that congress's constitutionally entitled to obtain. there's nothing inherently partisan about oversight. timely access to the information that congress needs to fulfill its constitutional obligations is in the interest of both parties. i know our witnesses today have some recommendations for fast tracking requests and i look forward to that discussion. the oversight process is not just about holding the executive branch accountable, it's about how congress comes to understand policy successes and failures in order to legislate smarter on behalf of the american people, congress needs to know whether the policies and programs that authorizes and funds are working as intended. oversight provides members with the information and agency level feedback they need to make sound legislative and fiscal decisions. the experts joining us today have a lot to say about what congress can do to strengthen its oversight capacity and i'm looking forward to hearing their ideas and recommendations. the committee will once again make use of a roundtable format to encourage thoughtful discussion and the civil exchange of ideas and opinion.

so get ready. in accordance with clause two j of house rule 11, we will allow up to 30 minutes of extended questioning per witness and without objection time, will not be strictly segregated between the witnesses, which will allow for extended back and forth exchanges between members and the witnesses. whew. all right, mr. timmons and i will manage the time to ensure that every member has equal opportunity to participate. any member who wishes speak should signal their request me or vice chair timmons. additionally, members who wish to claim their individual five minutes to question each witness pursuant to clause two j 2 of rule 11 will be permitted to do so following the period of extended questioning. did it? all right. i'd like to now invite vice chair timmons to share some opening remarks. >> good morning. thank you all for taking the time to come be with us here today. i think this is an extremely important issue. really in the last 20 years we've seen hyper partisanship and we've talked a lot about in terms of civility because i do think that depending on what party is in the white house,

what party is in the congress, the oversight committee becomes just a huge bomb throwing committee and they're really not doing their job. i'm gonna go ahead and tell you that if in the next decade one party is in the congress and the other party has the white house, they're probably not going to be legitimately doing the things that they ought to be doing. and so the question then becomes what do we need to do to make changes to actually reinstitute the purpose of the role of congress as it relates to oversight. as the chairman just said, both learning and holding them accountable. so part of that is civility i think, and we've talked a lot about that, but i think you'll have a lot of additional information that we can learn from on the subject. and i'm looking forward to hearing more about it, but i'm gonna go ahead and throw out one thing. i had a meeting yesterday with somebody that started his career on the hill in 1974 and it was very interesting. he was on the appropriations committee for a while and he

proposed the idea of not even having an oversight committee because every -- any committee has oversight subcommittee. and that was an interesting thing that i never thought of before. so we're gonna have a lot of interesting ideas that we're gonna be talking about. i just wanted to throw that one early, but look forward to look your testimony and with that mr. chairman, i yield back. >> thank you. i'm honored to welcome our three witnesses joining us this morning, witnesses are reminded that your written statements will be made part of the record. our first witness is josh chafetz. dr. chaffetz is a professor at georgetown university law school prior to his current position. he spent 12 years on the faculty at cornell law school. his research interests include constitutional law, american and british constitutional history, legislation, and legislative procedure, and the intersection of law and politics. his recent book, congress's constitution, legislative authority and separation of powers, explores how congress uses the various tools at its disposal during conflicts with other branches of government.

dr. chaffetz, you are now recognized for five minutes. >> thank you very much. chairman kilmer, vice chairman timmons and members of the committee. thank you for the opportunity to testify today regarding the vitally important topic of congressional oversight. although not explicitly mentioned in the text of the constitution itself, oversight has been understood from the earliest days to be not only a constitutional power, but a constitutional duty of the houses of congress. following the 18th century british house of commons, members of the founding generation described congress and especially the house of representatives as the grand inquest of the nation with a special duty to, in founding father james wilson's words, diligently inquire into grievances arising from both men and things. this duty was exercised from the earliest days with the house conducting a major investigation in 1792 into the defeat of an army force under general arthur st. clair by a confederation of native american tribes at the battle of the wabash, an investigation that resulted in the passage of corrective

legislation. oversight power became increasingly important as the chairman noted with the growth of the administrative state, beginning really, in the late 19th century and accelerating into the first half of the 20th century. and congress recognized this in various ways, including in the 1946 legislative reorganization act's mandate that standing committees exercise continuous watchfulness of the agencies within their jurisdiction. the creation of the house oversight committee and senate permanent subcommittee on investigations, and the growth and professionalization of member and committee staff and the congressional support agencies. it was also during this period that the supreme court issued its most important opinion blessing a broad power of congressional oversight and mcgrain v. daugherty. recent years have seen congressional demands for information repeatedly stymied by the george w. bush, barack obama, and especially donald trump administrations. and that experience has pointed to the limits of the methods that the congressional chambers have been using to enforce their demands for information. in particular, the last decade and a half have made clear that congress cannot and should not make itself reliant on the courts to help it get information out of an unwilling executive.

when it comes to the criminal contempt mechanism, administrations have repeatedly declined to prosecute their own officials, and when the house has filed civil suits to secure testimony or documents, those suits have taken so long to resolve that even when the chamber nominally wins, the information gets produced far too late to help that congress oversee that administration. conflicts from the george w. bush administration were not settled till president obama was in office, conflict from the obama administration weren't settled until president trump was in office, and a number of the conflict from the trump administration remained pending before the courts today. in essence, simply by bringing the dispute to court, congressional chambers effectively giving up on forcing information from the executive on a useful time frame. fortunately, congress does have other tools at its disposal for forcing information from the executive branch. and i'd like to suggest that the chambers would be well advised to think about how the power of the purse can be used in the service of oversight. money can only be dispersed from the treasury pursuant to statute and every part of the executive needs money to function. this gives congress significant leverage that it can use to pressure the executive to cooperate with information demands.

the simplest, and in some sense, crudest version of this is purely retrospective. if an administration stonewalls an information demand, then congress makes it pay in the next appropriation cycle, perhaps by slashing funds for misbehaving agency or even zeroing out the salary of a confirmations official. one can then take this sort of simple case and begin to add complexities to make it somewhat less crude. so for example, consider a change to house rules that would create a point of order against any appropriation to pay the salary of anyone who'd been held in contempt by the house and hadn't purged that contempt. now, of course the point of order could be waived, but it would change the baseline, right? a simple application of the rules would withhold the official salary and anyone wanting to pay it would have to take an affirmative vote to do so and explain that. or consider the use of oversight riders. certain appropriations could be paired with riders requiring the provision of information to congress on a timely schedule. this was used to some extent in the cares act a couple years ago. failure to provide that

information could automatically trigger cuts either to the underlying appropriation itself or to the salaries of the non-compliant officials. and such riders could make use of non severability clauses so that if olc were to declare as it has done on a number of occasions that the rider was unconstitutional that would lead to the loss of the underlying appropriation as well that's putting some pressure on olc to be more restrained in making those sorts of determination. the suggestions i've just made rely on the threat of withholding funds to secure cooperation with oversight and i do think that's a very potent threat. i also want to suggest one way that congress might spend money to better facilitate oversight and that's by engaging in capacity building. as this committee, well knows, staff numbers, staff tenure, staff pay, and staff training are all in need of more resources. this is true at both the member and committee level and even more so in the case of the support agencies like oeo, cbo, and crs. this committee has already recommended increases in funding for congressional capacity and the fiscal year 2022 large branch appropriations bill passed by the house is a good start, but more could certainly be done on that front as well.

oversight is one of congress's most important functions and it's under threat and has been for several decades now. creative thinking about methods of enforcing information demands is sorely needed and i submit to this committee that the appropriations process has the potential to offer some serious solutions. thank you very much. >> thanks dr. chaffetz. our next witness is elise bean. ms. bean is the washington director of the levin center at wayne state university law school. from 1985 to 2014, she worked for senator carl levin including 15 years at the senate permanent subcommittee on investigations. ms, bean was appointed psi staff director in chief council in 2003 where she handled the wide range of investigations, hearings and legislation. in 2014 after senator 11 retired in 11 center at wayne law was established in his honor she joined the center to work on strengthening legislative capabilities at the federal state, local, and international levels to conduct investigations and oversight.

ms. bean, welcome back. you are now recognized for five minutes. >> thank you so much. did i turn it off? seems to be all right. oh dear. how about that? ok. i think i'm all right. oh dear. all right. so we'll put it further away. thank you. well, thank you so much for this opportunity to talk about strengthening congress's article one, powers to do oversight. as people have mentioned, oversight is key to enacting the constitutional system of checks and balances and it's key to getting the information that congress needs to do its job.

my prepared statement has a whole menu of things that could be done large and small to try to strengthen congressional oversight authority procedures, staffing. but i'd like to concentrate on just one particular recommendation that has to do with the ability of congress to issue legal opinions on oversight issues. as we know, for decades, the executive branch has been able to issue legal opinions through the department of justice office of legal counsel and they've issued a whole bunch of them on oversight issues. for example, they have said that presidential aides are absolutely immune to congressional subpoenas. i don't know of anyone in congress who agrees with that, and the few courts that have looked at that issue haven't agreed that such an immunity exists either. and yet, presidents on both sides of the aisle have taken that position and continue to take that position. and congress has no ability issue its own legal opinion as a

whole as an institution, explaining why such immunity should not exist. we don't have that mechanism right now. in the last congress, this committee recognized that weakness and said that congress needed to strengthen its hand in court, and i know that the committee is considering this congress to send a letter to the gao asking them to do a study about how exactly would you do this? how would you set up an office that allows congress as a whole to issue legal opinions? should they be done by the house and the senate separately? should there be bicameral opinions? i think they would not be worthwhile unless they were bipartisan and they contained careful legal analysis. how would you staff that office? how would they draft those opinions? how would they finalize and approve those opinions? those are all difficult questions, but they can be worked out. some people think, well, you're never going to have the two

sides agree on anything, much less the two houses. and yet i would submit that there are a lot of areas where consensus is possible. one being obviously that presidential aids are not absolutely immune to congressional subpoenas and don't even have to appear at a congressional hearing when called. executive privilege might be another area, requiring the president if he wants to withhold documents has to have a list of those. a privilege log that has to be given to the committee that's asked for the information. another area, minority requests. right now there is an opinion that is within the office of legal counsel that says of a -- says if a ranking member of the committee requests information, the agencies can simply ignore it. i think both sides of the aisle would agree that minority members, ranking members of committees ought to be able to get information as well. so there are a lot of areas where bipartisan, bicameral

agreement is possible if we set up a procedure, an office, a mechanism to get those issued and we haven't done that right now. i'd like to also offer just one other thought from the menu of possible options, and that is enforcing getting better civil enforcement of congressional subpoenas in court. josh is absolutely right that it's been very difficult over the last few years. the process is almost broken down, and there are a lot of things that congress could do to improve it. there is a bill that's been introduced, the protect our democracy act title iv that actually has some bipartisan language that has been worked out. i think it's pretty good language and i would encourage this committee to take a look at it. it was developed with

congressman eisa among others, so it is bipartisan, and to think about endorsing that approaching that bill to title iv. so thank you very much for your attention and i'm available to answer any questions. >> thank you, ms. bean. and our final witnesses is tyndall. tyndall was counsel at protect democracy where she leads a team to secure accountability for abuses of power and counter anti democratic activity at the federal and state level. prior to joining protect democracy she served as assistant general counsel for litigation and oversight at the consumer financial protection bureau. she's also served as counsel to the house committee on energy and commerce. ms. tindall, you are now recognized for five minutes. >> chairman kilmer, vice chairman timmons, members of the select committee, thank you for the opportunity to testify at this timely hearing. at protect democracy, we work to prevent and respond to threats to our democratic system. that's acutely concerned with

preventing abuses of executive power and reinvigorating congress's ability to function as an effective check on the president, which requires being able to compel compliance with these demands for information. today i will address two opportunities for strengthening congressional oversight capacity. my testimony goes, my written testimony goes through many more. first, modernizing congress's subpoena compliance tools and second, ensuring access to sensitive information by congressional staff. there are three ways in which congress can force the executive branch to comply with its oversight demands civil contempt litigation in the courts inherent contempt and the criminal contempt of congress statute. i want to highlight the first two of these for you this morning. for most of this century, congress has primarily sought subpoena compliance from the executive branch through civil litigation. but as the previous two witnesses highlighted, that path has failed to meet congress's oversight needs. oversight requests issued in one presidential administration often span several

administrations and certainly spanned several congresses. has always been referenced the protecting our democracy act, of which several members of the select committee or cosponsor seeks to address this deficiency by expediting judicial consideration of congressional subpoenas and creating a cause of action for their enforcement to eliminate jurisdictional disputes that slow courts down. the expedited procedure would have civil contempt suits heard by a three judge panel convened at congress's request and reviewable only by direct appeal to the supreme court. protect democracy urges enactment of these measures. if there's one thing you take from my testimony today, i hope it's that prota is necessary -- prota, protecting our democracy act -- is necessary, but not sufficient to address congress's oversight needs civil litigation. no matter how expedited often will be too slow for consideration of sensitive and voluminous information requests. and it hands decision making authority to the courts which have never given congress an

unequivocal win in disputes with the executive branch. by all means send poder to the president's desk but you can't stop there. the executive branch has learned that it can slow walk response to oversight demands and watch the courts run out the clock. congress must get the executive branch back to the negotiating table. and the best way to do this is by invoking inherent contempt power. this used to mean sending the sergeant at arms to arrest and imprison holders of information until they complied. well, the supreme court has held this means of affecting compliance -- has upheld this means of affecting compliance, it is likely both practically and politically infeasible today. but a system of fines for contempt, could modernize congress's inherent contempt powers and tuen them into a credible lever for compliance, and unlike expedited civil litigation, it could be affected simply through a change in the house rules. the congressional inherent contempt power resolution introduced in may would do just that. finally, congress should act on the compensation, training, and technology recommendations the select committee issued in the last congress, and also consider increasing the number of congressional staff with access to top secret sensitive

compartmented information security clearances. at a minimum, the house should allow all members of the house permanent select committee on intelligence to hire a staffer with such a clearance as their senate counterparts may. this would ensure that members have staff to support them effectively in their oversight of the federal government's most sensitive and consequential program. i want to close with a compliment and a warning. the most important thing congress could do to strengthen its hand in oversight is to follow the example set by this committee, which has committed itself to work collaboratively in supporting congress as an institution. this, as you know, is not the way congress always works. across democratic and republican administrations, the executive branch vigorously defends its interests and adheres to an increasingly radical vision of executive power unrestrained by congress. as long as legislators act first

in the interests of their political party, rather than the institutional interests of congress, congress will lose battles against presidents who stand shoulder to shoulder defending the recalcitrance of their predecessors. our system of checks and balances, the foundation of our democracy, requires that members of congress also stand shoulder to shoulder in defense of the first branch's constitutional authorities. thank you. and i look forward to your questions. >> ms. tyndall, i want to recognize myself and vice chair timmons to begin a period of extended questioning of the witnesses. any member who wishes to speak should just signal the request to either me or vice chair timmons. so i guess, one of the things i wanted to ask about was much of your testimony appropriately was about where the executive branch basically isn't playing ball. i want to actually just take a step back and look at how the legislative branch approaches oversight. you know, and vice chair timmons in his opening statement sort of spoke to, i think there's almost two kinds of oversight in this

place. there is the kind of gotcha oversight, where the party that controls congress, if executive branch is and under a different party, it's about kind of really trying to get headlines, trying to embarrass that administration politically. you know, and then there's the day to day oversight of the administrative state, where you're trying to make sure that policy decisions that have been made are efficient and effective. you're trying to make sure taxpayers' dollars are being spent appropriately. i want to get your assessment, one, of how congress does on that second piece, and if there's things that you think out committee ought to be thinking about recommending to incentivize more of that second type of oversight or make more

effective that second type of oversight. i'm sure members of the committee will have questions about the kind of stalemate between the executive branch and the legislative branch. but i kind of want to take a step back and just start with how's the legislative branch doing? >> at the center, we do a lot of oversight. and actually, bipartisan oversight alive and well. but it's not covered by the media. when i say to my reporter friends are going to cover this great bipartisan hearing that tackling a real problem. no, it's boring. so the only things that see the media covers is the partisan food fight. but actually there is an enormous amount of bipartisan good faith oversight going on all the time. it's not even on the committee level. sometimes it's with individual members. >> you may have to use the mic, i'm sorry. you can try yours again if it's not the best.

i'm sorry. let's borrow. >> ok. i apologize for not turning that on. but i was just going to say, i remember a report that came out. >> yeah, i'd use that one. >> years ago from a democratic and republican office, that looked at pain relief issues and the world health organization. these two officers had no subpoena authority. they didn't have a committee. they simply looked at documents that had come out of litigation. they looked at the pain relief recommendations of the world health organization, and showed over time how the world health organization had taken on the same policy as big pharma on opioids. they put out a report disclosing this. the world health organization responded by withdrawing their pain relief recommendations, which had recommended very strong opioids very early in the

process. and that was just two offices working together on oversight. so, my answer is there is a lot of good faith bipartisan fact-based oversight that goes on right now. as for what you can do, we have a couple of suggestions, sort of soft suggestions. one is trying to popularize the idea of making a public commitment to bipartisan oversight. so you just announce publicly at the beginning of an investigation, we're going to do this together. when i worked for the permanent subcommittee on investigations, we regularly did that, and our bosses instructed the staff to work together. and guess what? we did. when your boss tells you to do it, you do it. another idea that we've suggested is have fewer hearings, unless partisan topic right now there's so many hearings that go on. people have a tough time even

tracking all of the intricate issues that are going on and the more partisan the issue often, the less productive the hearing less progress you make. , so that's another idea. and a third idea that we suggest is increasing social interaction on the permanent subcommittee investigations of staff at a running cocktail party every two weeks and you weren't allowed to talk about work, you could just talk about yes, i lure in the past or how your, you know, sort of the chit chat that goes on with people that work together. l interaction, we also took photographs of the teams that work together on a bipartisan basis on each investigation. we found that that social interaction and those photographs did more of our committee than almost anything else. so, those are just a couple of ideas.

>> i think, you know, it's it's wonderful to the extent that that's possible. it's also i think worth worth stepping back and perhaps saying that bipartisan doesn't always mean good and partisan doesn't necessarily mean bad. right? so one reason that certain things are partisan issues is simply because there are ideological disagreements about what it means for some part of the executive branch to be doing a good job or a bad job. and if there's disagreement about that, and in an increasingly sort of partisan polarized age, that disagreement is likely to track party lines, then we actually should expect to see the party is taking a different view on oversight of that particular part executive branch. and and sort of further than that, you know, oversight is one. so, you know, the two kinds of oversight that you mentioned at the beginning, right?

this sort of, you called it gotcha. i would perhaps use a less pejorative term, but this sort of gotcha on the one hand, and the day to day on the other in some sense, could also be separated out as the day to day oversight being oversight of things that are perhaps lower level down in the executive branch. whereas a lot of the gotcha, or some sort of more communicative or performative uses of oversight tend to be things that are closer up to the white house level. right? it's actually an important function that congress serves as a way of pushing back against presidential power, that when another party controls one of one or both of the houses of congress, that they actually do serve as a sort of rhetorical counterweight. so we tend to forget that a lot of the earliest committee hearings surrounding watergate, were on party lines. by the time you get closer to the house judiciary committee reporting out the impeachment

articles, it was somewhat bipartisan, although not all that bipod the very beginning their party line votes in the house judiciary. i don't think that partisan oversight is necessarily a bad thing. i think bipartisan oversight when it can be made to work and when it is appropriate is a good thing. and and i am share lisa's recommendations on that, but i wouldn't want us to say that just because something is happening on party lines, that necessarily makes it a bad thing. >> do you want to take a swing at this pitch? >> one short common. i agree with professor chaffetz that partisan oversight does not have to be an empty affair. but i do think some of the recommendations this committee has made around the structure of oversight hearings could reduce the gotcha feeling that we all get when we watch these hearings and have the conversation go back and forth, ping ponging between points made largely for youtube or social media. and less for for engaging with

their witness to get the sort of productive and really effective oversight. you want both on the bipartisan oversight on issues where there can be agreement and even where there are ideological disputes and there may be conflict. being able to actually engage with the witness an extended period of time not, you know, the sort of 30 minute questions perhaps even handing questioning over to to staff who have really mastered all the facts of the investigation and can offer follow up questions and the like could lend substance to the hearings that now often feel more full of of finger pointing. >> mr. timmons. >> i've been doing a lot of research while we've been sitting here. the house has both the full

committee on oversight and government form and it has at least seven subcommittees for enc financial services, homeland natural resources, space science that is the ways and means. the senate, interestingly the word oversight only appears one place in all of their committees and subcommittees. my time in the house and my just life experience would lead me to feel that maybe there, well, i feel like a lot of the things that thousand those again, this is on both sides of the aisle at different points in the last 30 years have have devalued the purpose of our ability to actually engage in oversight in the house. is the senate doing it better or there are fewer of them? it's harder to tell a senator. no, i don't know, talk me through. the difference between the two. whoever knows the most about it.

>> so i don't think the senate is doing better than the house -- just whether you call something oversight or not, doesn't really, you know, control whether somebody's doing oversight and there is this law that requires every committee to do oversight as part of its work. you're not just supposed to produce laws, you're also supposed to produce oversight. and of course the two go hand in hand because how do you know what the law should look like, how it should function if it should be modified? unless you get more information. you raised an earlier question about why do we need a general oversight committee? why not just leave it to each of the authorizing committees? and the answer to that is a all of those other committees have a lot of legislative responsibilities and oversight committee is less about the legislation and more about fact finding. so i worked on the permanent subcommittee on investigations. we had no legislative authority at all. we had nothing to do with

passing laws, were only about fact finding. and one of the things we looked into was money laundering, and why did we do that? the senate banking committee had a lot of legislative responsibilities. they never had time to get to money laundering. it just didn't have time on the, on the order of their priorities. and i couldn't argue with them. they had more important things to do than money laundering. and yet that's a really serious problem in a whole variety of ways. and so we spent time doing that money laundering and then eventually we helped to produce a bill but then it went to the banking committee that then considered it and eventually passed it. so that's one reason you have an oversight committee so they can function, take on that constitutional responsibility that members of congress are not just about legislating. they're also about figuring out how the government is work and how can we improve it. >> in your experience, do authorizing committees facilitate or help the full committee on oversight with its

pursuit of information? i mean theoretically they're going to have better relationships, better subject matter experts. they might be able to more effectively pursue information. is that something that happens or are they pretty separate? >> occasionally it happens. occasionally an oversight committee will go to say the armed services committee. can you help us get this information from dod on this particular issue? but a lot of times the full committees are kind of jealous of their relationships with their agencies and they developed very strong agencies, sometimes even agency capture and they don't want to help an oversight committee that's pointing out problems. it's a mixed bag. >> when the follow up committee pursues information whether through subpoena or whatever the mechanism may be. does it ever happen that they go to the subcommittee on the authorizing committee and request to do a joint request as

opposed to just -- i think that would be stronger. >> yes, it would be stronger. and i think people try to do that wherever they can and you'll see joint letters and requests for information. i think one of the big things about oversight, what distinguishes an oversight hearing versus a legislative hearing is it's more about fact finding as opposed to evaluating legislation. fact-finding, we found on psi that if you find somebody who has the same worldview as you generally agrees with you. you don't challenge each other. you miss a lot of facts, you just don't get it right. it's only when you investigate with people have fundamentally different views than you have not you start to look at more facts, you're more critical about them. you challenge each other and at the end of the process, your results are usually more accurate, more thoughtful and certainly more credible because you had a range of views in the process. and i think the oversight committees really take that to heart. and when they're doing bipartisan oversight, try to use those disparate views to come up

with a better investigate set of facts that you can then use to think about what you should do about the problem. >> wellness question you talked , about using the power of the purse to better engage in oversight. i really like that idea. but i mean at the end of the day, i feel like it's probably going to be very challenging. obviously we've lived in crs for forever and then, you know, you're gonna have to figure out get in the center of the house to agree. and i mean, talk me through that a little more. i mean, is that a great idea that probably will never work. >> part of what the sort of intuition it calls on is that the appropriations are must pass in some sort of central sense. and so the basic idea is that if you know, one house or the, you know, appropriations committee of one house feels very strongly about a particular writer that, that there's a decent chance they can get that into the final bill.

because what's the alternative? right, if you're if you're actually willing to sort of insist on that being in a final appropriations bill, and i'm just going to back to the question of crs if you're willing to insist on that right? or being in a final appropriations bill at the other chamber, either by refusing either the other chamber by refusing to go along with the president by threatening to veto is essentially threatening to defund, you know, 12th of the federal government. right? you know, house that's willing to really insist strongly on that. could actually, i think i get a lot of those riders through? it wouldn't always win the fight, but it it might win the fight and would have to think sort of carefully about the sort of political optics of doing it as well. right? obviously, just because you're having a fight with, you know, the department of agriculture doesn't mean you want to defund the department of agriculture, but it might mean you go after sort of targeted officials or if you have a situation where say you think the white house counsel's office is um, you

know, time the president, hey, you don't have to respond to any oversight demands from anyone ever. maybe the american people don't need to be paying for the white house counsel's office in that moment. so i think there are targeted things that house could do that. that becomes harder as the as the sort of normal appropriations process breaks down. right? so part of part of what i would advise in testimony to the budget committee last year is um it is important to try to return to regular budgeting order, it is important to try and bring back that process, because that's the way that the houses of congress exercised fine grained control over not just spending, but a whole host of issues that are collateral damage. >> can i just pull that thread real quick? so it's also hard because it's a really partisan place, right? how do you how do you prevent sort of gaming that right? whatever party is in charge in congress as agencies they love and agencies they don't love so

much. so how do you keep if you go that route of withholding funds, how do you make sure that a legislative party that's in power doesn't say i'm going to ask for something ridiculous from this agency to squeeze their budget? >> that is the congressional power of the purse, right? that when people who are sort of more sympathetic to certain government functions are in control, they tend to fund those government functions and defund the ones that they're less sympathetic. so to some extent, that's a problem that's not sort of specific to oversight but is really endemic to the idea of congressional control over spending. i think the check on sort of specific demands here is a political check, right? that ultimately when you're doing these things, you're setting up a political fight, you're setting up a confrontation with the other house with the presidency. , and so you have to be able to go out in public and and make a plausible claim for why you should win that by. when these fights have gotten out of hand and we've gotten to lapses in appropriations, right. what what ultimately settles

those lapses in appropriations is some sense that one side or the other is losing the public fight and that side then eventually caves. so i think ultimately the check on it, it has to be that you have to be able to go out and defend what you're trying to do. >> he left. even better. that's great. that happens to make this place work better when your colleagues in front of you just step out at the exact right time. look, i love the recommendations. you all have the power of the purse. great. i would love to get back to our probes process. and as a matter of fact, we're trying to teach the next generation about the appropriations process. i got a tour of a new exhibit in the capitol visitors center not too long ago where they have an interactive table where when we opened this place up again and people can start coming here again, they're gonna be able to argue and debate the 12 appropriations bills. well, my staff director asked

the question, where is the cr button? [laughter] because frankly, that's where we're at right now. we can talk in philosophical terms about what worked and what didn't. but this place has never been more of a hot political temperature in my time as a staffer for 16 years and my time now. nine years as a member of congress. i've never seen it this bad. and we've had committees like the committee eileen, house administration for our side, swear in witnesses. never done it before. and i mean dirty little secret is when you testify, you're always already swearing in any way, already saying you're not going to lie to us. so don't lie. we will come after you. we will jointly exercise oversight responsibility if you say anything untrue. but social media, you want that news pop. we'll be able to get out there. and i noticed there hasn't been a discussion about how our normal media environment other

than the fact that you are absolutely right. ms. being, that the media doesn't want to cover us talking about things where we agree they just want to see me punch perlmutter, which could be in about five minutes because he's a broncos fan. they're terrible. but in the end, what does that have to do with it? how can we get back to better bipartisan oversight because everything you all say is great. but i mean, the only hope i have is that we've gotten better because i remember when i was told chairman dingell used to exercise his own oversight when had proxy capability, got rid of that in 1995, now we're back to proxy voting on the floor. what's the next step back in committees. no, no, i don't think that will help us whatsoever. and frankly, i'm a little frustrated with proxy voting right now because it stops somebody like me. i'm going to talk to all of my colleagues about legislative ideas or even oversight ideas that we may have. i think it helps break down the

institution and not in a very good way. social media, how is that impacting our ability to exercise our bipartisan oversight? i don't care who answers. >> can i take a crack at that, because i've looked at oversight in a lot of different eras. it's not clear to me that the fights are particularly more, particularly stronger now. so i've looked at, for example, the nye committee in the senate in the 1930s, which munitions committee or the merchants of death committee. you look at the mccarthy hearings in the army mccarthy hearings in the late 1940's and 1950's. you look at some of the hearings in the 1990's. these are all different media environments. right? the first one's radio. the second one's television. the third one is internet, pre social media. now, we're in a social media era and they're all nasty. they're nasty in different ways. sometimes the nastiness is cross partisan.

so there are factions of both parties fighting with in themselves and then sometimes it's more partisan. i would suggest that, you know, to whatever extent we're in a moment of sort of high political passion the fault isn't with the media and it's not even with, i mean, there are things that, congress as an institution can do to turn down the temperature in congress. but the truth is that the american public is more polarized than it's been in over a century on political lines. and if the american public is polarized, we not only should expect congress to be polarized in some sense, we should want it because because congress is meant to represent the people. now again, that that doesn't mean we shouldn't try to figure out ways where there is agreement or might be agreement forged across those lines that we should do it, but we shouldn't expect sort of agreement across party lines when what we have in the underlying public is an american people that's been getting increasingly polarized since the mid-1960's. >> very good points, anybody else? yeah, don't waste that. don't try the middle one.

no matter what he says, we don't listen to him either. >> i'd like to point out that what you're talking about is the norms in congress and it's very hard to change those norms. and i think one thing, you know, it's not a sexy answer, but screening workshops, if you have from the very beginning for new members orientation. if they have a session talking about how oversight can bring the parties together. i mean, that's a a message that you don't hear very often. >> you've told the right person. we will duly note that for orientation after this next election cycle. >> and then for if there's ever a members academy leadership academy and on the staff level, the 11th center working with pogo and the lugar center for five years now has been doing staff level training on oversight, fact based bipartisan, we have 100 applications for each 25 spots that we do. we do it twice a year.

there is tremendous interest in bipartisan fact based oversight. and not only that when you work with the staff, they love it. what we do is we get democrats, republicans, house and senate. we put them on bipartisan bicameral teams, give them a fake scandal and then take them through the legislative oversight process and they find that they can't even tell who's from which party and they find everybody has good ideas and they find they can work together, but you don't find that out unless you do it. and workshops are important right now, there isn't a single oversight offering the congressional staff academy. we've been trying to get them to think about it. no luck so far. but i'm hoping one of the things that this committee could do is tell the congressional staff academy, you have to have something about bipartisan fact based oversight. >> i will tell them right now. you need to have something about bipartisan fact based oversight >> or you can just take me to our oversight boot camps. >> where's my team on house

admin? hey, tell them. all right. i do have to apologize. i see you worked on energy and commerce with my former boss. i apologize for the many years you had to put up with it. he's in town today. so if you see him, tell him i said that too. but what's your thoughts on on the media environment? >> i mean, i think the media environment is not something we here are going to solve or you in congress are going to solve. but i think that what what must be is describing is is a way to build the sort of institutional interests that i was talking about in my opening statement, where you provide staff and members with ways to get what feels like wins, get refills like progress, fulfilling work together, and help them

understand that it is the institution of congress they are representing, rather than their political party across all investigations. not all of our oversight was bipartisan, but a good chunk of it was. when i when i look back on the time i spent in congress as an investigator, it were the bipartisan investigations that was most successful, that were most likely to lead to reform legislation. there were most fulfilling to the folks involved. >> thank you. one last question, observation i want to talk about and have you all address if you have the opportunity is talk about minority rights. i really care about minority rights right now because i'm in the minority. we're learning a valuable lesson about how to create more of a bipartisan work environment and

the committees that i serve on and compare it to the years i served in the majority versus the years i'm serving the minority. i'm learning a lot. but here's the problem. we talk about minority rights. we talk about how do we exercise that bipartisan oversight? this place is based on precedents, right? the president has been set by this majority to actually not allow members of the minority to serve on committees that the minority names into. that precedent is going to be taken by any new majority to how do we stop that? how do we stop? how do we get back to a point where the minority rights means of being able to appoint their own members to committees and then focus on bipartisan oversight rather than focusing on politics. we can make that a staff academy one too, if you like.

>> well, i think as it becomes more and more clear that the majority's can flip back and forth. each side is going to become a lot more interested in minority rights because one congress, you're in the majority, the very next one you're in the minority. when i was in the senate, i was in the majority of minority back and forth over the years. and so as you say, you start to gain an appreciation or why the minority is important and why you need two vibrant parties working together to solve problems. so i think there's going to be a fix automatically. but i so republicans right to the department of justice saying we don't like your legal opinion that federal agencies don't have to respond to committee requests made by ranking minority members. i thought, hallelujah. right? that is true. and that's another reason why congress itself needs the ability to issue legal opinions

on a bipartisan fact based way, that's how you're going to tackle that problem. >> i'm not sure i have too much to add on that, except that. yes, precedents can be important, but they also are not sort of determinative, right? the ways in which members get appointed to committees have changed radically over the course of the history of this institution. i think you can also sort of sting which perhaps between a general rule that continues to be operative. in the few exceptions. that said, i think like everyone up here, i would be very dismayed if the sort of general rule were changed to take away a significant amounts of power each party to appoint.

>> did you want to pull on one of the threats? -- threads? >> thanks. and just to follow up on the point, the legitimate point on taking someone off the committee. but also, your point is being about the executive branch more or less giving you -- thumbing your nose at congressional oversight. and i'm sorry i missed your initial remarks. how do we deal with that? i don't care, it could be the biden administration, you know, talking to a republican majority saying sorry, we're not showing up. how do you deal with that?

>> i think as we've all said, there's a number of things, there's not one silver bullet. one thing is you have to have a strong congressional position, bipartisan bicameral. there's no such thing as executive branch immunity, congressional subpoenas. and then you use that opinion. you have to go to court. you have to get a court decision. when we have gone to court, there are two district courts that consider that opinion and they both said there's no such thing as absolute immunity, but that's only a district court. it hasn't gone up the process. so you have to set up way to get better or quicker, better court consideration of these issues. we talked about title four of to protect our democracy act. that has been developed with bipartisan input. it has some really terrific provisions that could help address this issue. and i think we talked about inherent.

another option. >> congress is inherent contempt power has been upheld by the supreme court numerous times. i don't think that we need to return to arresting recalcitrant witnesses in order to effectuate it. i think that a system of fines that could bring the administration back to the table and bring the executive branch back to the table. the idea should be just as with, you know, our criminal code. the system of fines will be most effective if it's never used. the goal is to find executive branch officials, the goal is to create a credible threat that forces them to the table to return to an accommodations process that worked for many, many years. but has since broken down. >> i just had one, you know, one

way to to sort of effectuate the fines in a way that does to a large extent sort of keep this out of court at least at the front end is that when we're talking about executive branch officials, we're talking about people who are drawing a salary from the treasury, right? you can set up a system of fines so that they simply don't get paid at all. i think that's why i wanted to sort of emphasize in my testimony that the importance of using the appropriations power the power of the purse more generally. one area i do disagree is the hope of getting this through the court in a satisfactory way. i think both the timing, even on expedited procedures of trying to get these things through the courts. frankly, the federal judiciary has been hostile to congress for decades. it's been hostile to any kind of assertion of congressional power. you see this as early as the senate select committee case in watergate. you see it in an opinion just last year. the federal judge should every is pro-judiciary, it is pro

executive, anti-congress, and it has been for decades. >> one more question if i could. you say, well, the citizenry is polarized, therefore we should polarized. very fatalistic kind of conclusion. and i mean, abraham lincoln talked about knowing where people are. can't just say, you know, we really need to get there tomorrow. even though they are way over here, you have to recognize where they are, and lead as you can to a point that is positive, i guess. and i think what we're trying to do on this committee in these kinds of conversations is to be leaders towards civility, towards collegiality, towards

coming up with solutions as opposed to arguments and fights. so that's just how i kind of felt by your remarks and you're right, we are polarized as a nation, more than i have ever seen, but we have a responsibility not to be appeasers to be leaders in trying to work together. we had a funny experience yesterday. in the financial services committee where it had been a completely bipartisan committee. i mean you couldn't tell whose witness was what it was on cybersecurity which was a common concern of all of us. it was funny because most of us understood, you know, we were just trying to get to the elements of the cybersecurity. the memo didn't quite get to everybody on either side. so the last couple of guys who were asking questions, it was like right out of the message machine. both sides.

we turn to each other, i guess they did not get the memo. this really is a bipartisan committee hearing. we're so told to stay on message and that message is a very combative one. >> if i could just make one comment on that. senator levin did bipartisan oversight his entire 36 years. and when he was on the permanent subcommittee on investigations, he started off with susan collins and had very bipartisan relationship. we said, well that's susan collins. and we had tom coburn come on our subcommittee and they all said you're never gonna be able to work with him. i had a wonderful working relationship. and that's really the good news about oversight is that two members, the ranking in the chair can get together and it doesn't matter what anybody else is saying or doing, they can choose to work together, they can order their staffs to work

together. and when that happens in good faith you find out the facts. once you find out the facts, you might find out solutions that are acceptable to both sides. oversight is a area where bipartisanship really can work because you just close the doors on what everybody else is doing and have your staff's work together to find out the facts. and that's why this hearing, to me is so important. >> theoretically, congress could pass a law that says if the ranking member and chairman of the oversight committee issued a subpoena to a federal employee and that federal employee refused to comply. they would be denied compensation. could that happen? >> i think that we just go to the courts. whenever you have these things about opposing -- imposing fines. what would the courts do?

and with the court say, and i don't think they have been uniformly hostile to congress. when you look at number of the decisions over the years, they've been very supportive of congress. so i think that's why it's, you don't know what the courts are going to do, what a particular judge is going to do. i don't know how they would analyze that. if they would say a blanket, you know, whenever you don't comply with a subpoena, even if that subpoena is improper in some way. >> you can create a 30 day window with an expedited appeals process. >> you know, there are all kinds of ideas like that. >> what does that look like? so can you say a bit about what an expedited judicial consideration would look like and how do we legislate? >> on the initial proposal, one thing he would accomplish, they would wind up in court. the thing is, you are flipping who the ox is being gored while

the process is going on. right now, the house issues a subpoena, the subpoena gets defied, then the house sues, then the case takes six or eight years and then by the time it's resolved, however it's resolved, everybody's forgotten about it. if you do something like withholding salary then yeah. so the person whose salary has been withheld is going to sue and while they're suing their salary is being withheld right, that is an incentive for them to cooperate. >> you could also facilitate an expedited appeals process. you can say when a congressional subpoena is denied, it takes prerogative on the docket. >> just so you know, >> that's exactly what they've done. they've said that you have to expedite any time there's a congressional subpoena involved. and very cleverly they also require the supreme court and the judicial conference to write rules for their courts to follow so that the expedition happened. i think that's very critical. if you don't have rules in

place, i think it wouldn't happen. that's something new that hasn't been suggested before. but as as joshua said there, there's all kinds of -- courts ignore the rule sometimes. so you're never going to have perfect system but there are ways to make it better than it is right now. >> should we give the supreme court original jurisdiction? >> in the bill, what they do is they say you can request a three judge district court and then go straight from there to the supreme court. so you'd skip an entire appellate level which would save you a year or two. that is one of the proposals. >> and that's modeled on things like there's certain election law controversy that goes straight to go to a three judge panel with a appeal to the supreme court. you couldn't give the supreme court original jurisdiction, at least if we think marbury v. madison was rightly decided. there would be ways to tell the courts to expedite these cases. the question is just what the

courts would do with those. the courts have shown such an incentive, such an interest in slow walking these cases when they don't have to. i'm skeptical that you could write a statute would actually force the courts to decide these things on a really tight time frame because congress only last two years. >> can i just ask a basic question? how we, in the legislative branch say to the executive branch. so somebody in health and human services isn't showing up. we write a letter to secretary and say you've got to withhold that person's salary? and we were already at odds with the executive branch. he says i don't have to follow that. then were going to withhold all of the money to go to health and human services? is that how you see this working? >> there is a point at which,

you know, if the executive branch -- the constitution says that no money can be expanded from the treasury except in consequence of appropriations authorized by law. if the executive branch is willing to ignore that. and there have been times that it has ignored that. we're then then we're sort of at a moment where, you know, law has basically run out, right? we're at a moment where the executive branch has just announced that it's willing to behave flawlessly. borderline at a moment where there's been a coup, right? and i know that sort of strong language, but i would i would say that, you know, the power of the purse has been understood from the earliest days as the bedrock of congressional power. whatever else it needs to accomplish, it can accomplish that in part by using its power. and if you have a treasury that is willing to disperse money when those dispersal's haven't been authorized by law or contrary to an appropriations, exactly the same thing, then you have a situation where the constitutional order has broken down. >> any final thoughts?

>> i just i just wanted to draw out a little bit, and respond to representative perlmutter, you're right that we have, we have a challenge and the executive branch following through. vice chair, you are right that we have a challenge in affecting the sort of penalties you were discussing, such as you know, barring someone from federal property or deducting their salary because these things depend on the executive branch. and so i want to point you back to the inherent contempt power, where you could establish a system of fines and a means of executing them through a house resolution. you do not have to depend on the executive and you could enforce it yourself. that may be the way you have to go. >> i would just like to say, there is a whole menu of things

that can be done large and small in the testimony that we've given you. i think the idea of sending this letter to gao, talking about options and recommendations for setting up a system for congress to actually make up its mind in a bipartisan way about certain legal principles is a really important part of that changing norms of deciding how congress wants to operate. so i recommend doing that. show less text >> >> nothing in particular. >> we would like to close it out. i'd like to thank our witnesses for their testimony today. and i also like to thank our committee members for their participation without objection. all members will have five legislative days within which to submit additional written questions for the witnesses to the chair which will be afforded the witnesses for their response. i'll ask our witnesses to please respond as promptly as you are able. without objection all members , will have five legislative days within which to submit extraneous materials to the

chair for inclusion in the record. this hearing is now adjourned. >> 90 so much. -- thank you so much. [indiscernible]