Note 27. Motivation and Capacity
Congressional Oversight in a Partisan Era
For advocates of a Congress that meets its constitutional responsibility to make policy and provide for its implementation by the executive branch, congressional oversight has usually been disappointing—actually, very disappointing. Oversight—the process of gathering information about the activities of executive agencies and officials—is time consuming and competes for the time of legislators who otherwise focus on passing or blocking new laws, spending time in home districts and states, fundraising for their campaigns, and other activities. The effort required to plan and conduct hearings, investigations, and studies of executive agencies and officials is substantial.
Motivation
Thanks to a 1984 McCubbins and Schwartz paper, political scientists have for a generation distinguished two kinds of oversight: police patrols and fire alarms.[1] Police patrols are regular, routine inquiries that usually turn up few newsworthy findings. The fire alarm reference applies to inquiries stimulated by outside groups or media stories that occur sporadically and tend to attract public attention. The political motivations for police patrols are limited; the political motivations for oversight of interest to an important audience can be substantial.
Partisanship was never absent from legislators’ motivations for oversight. When Congress and the White House have been controlled by opposite parties, the desire to expose wrongdoing by, and publicize the unpopular policies of, an administration have frequently played a role in congressional investigations and oversight activities.[2] Equally important, when the congressional majority is of the same party as the president, the desire to avoid embarrassment for a president has led to delays or even suppression of meaningful oversight.
Intense partisanship and frequent divided party control of at least one house of Congress in recent decades have affected oversight in many ways. Perhaps most important, partisan goals trump agency and program improvement as the primary purpose of purported oversight hearings. We then observe intensely partisan questioning of witnesses at hearings and little meaningful exchange of information between witnesses and committee members. For legislators of the opposite party of the president, hearings and other committee powers, such as the subpoena power, often become intentional efforts to burden executive branch officials with requests for testimony and reports.
Organizational Capacity
Political motivations are just a part of the oversight story. The other part is having the organization and resources to conduct oversight. The mid-20th century was a period in which Congress recognized its shortcomings and beefed up its institutional capacity to carry out oversight activities. Here are just a few highlights:[3]
Legislative Reorganization Act of 1946: Reorganized committee and their jurisdictions; gave committees permanent staff; added staff to the Legislative Reference Service (LRS); directed committees “to exercise continuous watchfulness” over programs under their jurisdictions.
Legislative Reorganization Act of 1970: Increased committee staff support; authorized committees to “review and study, on a continuing basis, the application, administration and execution” of laws under their jurisdictions; transformed the LRS into the Congressional Research Service (CRS) and substantially increased its staff; added responsibilities for program evaluation to the General Accounting Office, a congressional agency.
The Technology Assessment Act of 1972: The Office of Technology Assessment (OTA), a congressional agency, was created to provide advice and analysis on scientific and technical issues.
The Congressional Budget Act of 1974: Created the Congressional Budget Office (CBO) to provide independent economic and budget studies; authorized committees to contract for program evaluations.
The Government Performance and Results Act of 1993: Requires inspectors general in executive agencies to study and report waste, fraud, and abuse and to have their unrevised reports sent to Congress.
With these developments, the committee and supporting agency staffs reached about 10,000 people. The number of committee staff rose from just more than 500 in each house in 1965 to nearly 2,000 in the House and 1,200 in the Senate in 1980. CRS more than doubled in size to over 800 staff members during the 1970s and CBO and OTA added about 400 staff. The GAO, responsible for auditing executive agencies and conducting studies requested by congressional committees, grew from just over 4,000 to over 5,000 in the 1970s as it added economists, information technology specialists, and investigators.[4]
Another important development was unique to the House: The adoption of the “subcommittee bill of rights” by House Democrats in 1974 (see Note 22). By expanding the number of subcommittees, guaranteeing staff for subcommittees, and giving subcommittee chairs substantial independence, the House created many more units that could initiate and conduct oversight activities, including hearings. While staff members were employees of the full committee, each subcommittee chair was guaranteed the right to appoint a staff. These staff members sought to advance the political interests of the subcommittee chairs. One way to do this was to conduct attention-getting hearings. They accepted the spirit of active oversight and often urged legislators to exploit the resources of the congressional agencies and to initiate investigations and hearings.
By the 1980s, then, Congress’s ability to conduct oversight was transformed. At mid-20th century, Congress was a legislature that could occasionally mount serious investigations and otherwise was very reliant on the executive branch for information. By 1980, it had become an institution that could acquire in-depth studies on its own with the support of policy and legal experts that it employed and could easily conduct many oversight hearings every week.
The Big Lobotomy?
Things changed. The partisan motivations that produce greater conflict over investigations and oversight have been accompanied by a substantial reduction in Congress’s capacity to conduct oversight. This began with the new Republican majorities elected to the House and Senate in the 1994 elections. House Republicans cut committee staffs by third; Senate Republicans cut them by a quarter. The Republican majorities reduced GAO staff by a third, blocked additional funding for CRS, and abolished the OTA. One writer called this the “big lobotomy.”[5] And House Republicans did not have party rules similar to the Democrats’ subcommittee bill of rights so the number and independence of subcommittees was cut back considerably.
The ability to conduct oversight (of the Democratic Clinton administration at the time) was a secondary concern to the new Republican majorities. Many Republicans wanted to eliminate federal programs, not oversee and improve them. And many Republicans wanted their efforts directed by party leaders. In their view, committee leaders and their staff who had a history of support or tolerance for the programs under their jurisdiction could not be trusted. Republicans knew what they wanted and did not need much staff to carry out their plans. Subservient committees and a smaller and less expert staff sufficed.
Since the 1990s, Republican majorities and stalemate on spending issues have locked in legislative appropriations to levels that have prevented Congress from restoring staff levels of the 1980s. In fact, when House Republicans regained a majority in 2011 (having lost it is the 2006 elections), they cut House funding by 20 percent. By the mid-2010s, GAO and CRS were operating with about 80 percent of the professional staff they had in 1980. Committee staff was about 65 percent of the staffing level of 1980.
Some Measures
To get a better feel for the implications of intensifying partisanship and declining oversight capacity, I exploit two studies that attempt to measure the frequency of investigation and oversight hearings. Cited in Footnote 2, the Kriner-Schickler study counts the number of committee hearings devoted to investigating alleged misconduct by executive branch officials. Misconduct investigations are small fraction of all oversight hearings, of course, and are usually the most salient of committee hearings. The Kriner-Schickler data ends in 2006.
The MacDonald-McGrath study tackles the difficult problem of identifying the subset of hearings that are devoted to oversight, including investigations of misconduct. Because committees often do not clearly label oversight hearings, it takes an educated guess about what words are commonly used in the titles and descriptions of hearings to distinguish oversight hearings. I follow the MacDonald-McGrath method to recreate a count of oversight hearings and borrow the Kriner-Schickler data on investigation hearings.[6]
I report the hearing counts for the House and Senate since 1972 in Figures 27-1 and 27-2. Both houses exhibited a high level of hearings of both kinds in the 1970s and have drifted downward since then. The House, with a much larger number of committees and subcommittees and a larger staff, conducted 50 percent more hearings than the Senate in most Congresses. This corresponds with the total number committees and subcommittee meetings held in the House and Senate.
A notable feature of the record of hearings is the saw-toothed pattern in both houses before the mid-1990s. Even-numbered years are election years, which generally have shorter sessions and are associated with legislators spending more time campaigning than in odd-numbered years. The pattern fades after the mid-1990s. A reasonable hunch is that political obstacles, reduced capacity, and, perhaps, the low priority given to oversight by majority party leaders who were focused on their legislative program, combine to lower the volume of oversight to a bare minimum in both sessions.
In Figure 27-3, I overlay the number of House subcommittees and House committee staff on the number of oversight hearings and the number of days of hearings in the House. As observed in Note 22, the number of subcommittees was cut deeply after the Republicans took over the House in 1995; the number has recovered some but not much. The number of committee staff took a hit at the same time and has not changed much in the last quarter century.
While the number of separately named oversight hearings, each of which can be conducted over more than one day, fell only slightly in the late 1990s, the days devoted to oversight hearings reached a new low. Both the number of hearings and the number of days of hearings fell even more in the 2010s.
Final Thoughts
We cannot separate motivation and organizational capacity cleanly in an effort to explain oversight activity. A motivation to conduct oversight also may lead to creating greater organizational capacity; the motivation to undermine oversight may lead to an effort to undermine capacity. At any moment, the organizational capacity sets limits on how much oversight can be done. The tendency to take organizational capacity for granted and to focus on political motivations is unwise. The two surely are related but only loosely.
It is obvious that Congress is doing far less oversight of either the police patrol or fire alarm variety than it did a half century ago. Partisan and ideological interests complicated legislators’ calculations in ways that McCubbins and Schwartz did not anticipate in 1984 and ultimately undermined the organizational capacity that McCubbins and Schwartz had reason to think had plateaued. That proved to be an unnecessarily narrow view of congressional oversight.
We should keep an eye on this. My working hypothesis is that regular, well-staffed oversight efforts make for good government. The exceptionally little oversight that has been conducted in recent years should concern us all.
[1] Mathew D. McCubbins and Thomas Schwartz, “Congressional Oversight Over- looked: Police Patrols versus Fire Alarms.” American Journal of Political Science 28 (1984): 165–79.
[2] Douglas Kriner and Eric Schickler, “Investigating the President: Committee Probes and Presidential Approval, 1953–2006.” Journal of Politics (2014) 76: 521–34; Jason A. MacDonald and Robert J. McGrath, “Retrospective Congressional Oversight and the Dynamics of Legislative Influence Over the Bureaucracy,” Legislative Studies Quarterly (2016) 41: 899-934.
[3] For more details, I recommend Morton Rosenberg, “When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry,” The Constitution Project (2017) [https://archive.constitutionproject.org/wp-content/uploads/2017/05/WhenCongressComesCalling.pdf].
[4] Harry S. Havens, “The Evolution of the General Accounting Office: From Voucher Audits to Program Evaluation,” General Accounting Office, 1990 [https://www.gao.gov/assets/op-2-hp.pdf].
[5] Paul Glastris and Haley Sweetland Edwards, The Big Lobotomy: How Republicans Made Congress Stupid, Washington Monthly, June 2004 [http:// www.washingtonmonthly.com/magazine/junejulyaugust_2014/features/the_big_lobotomy050642.php?page=all].
[6] See footnote 2 for citations. The MacDonald-McGrath method codes the titles and descriptions of congressional committee hearings in the Policy Agendas Project (https://www.comparativeagendas.net). An oversight hearing is one in which one of these terms appears in the title or description: oversight, review, report, budget request, control, impact, information, investigation, request, explanation, consultation, and examination. I find the coding is far from perfect, but it gives some basis for seeing how the number of relevant hearings has changed in recent decades. I also note that I could not replicate the precise counts reported in the MacDonald-McGrath study.