Oversight

'Oversight' is the general term for Congress's monitoring of the activity of federal departments and agencies, and its scrutiny of presidential nominations and treaties by the Senate. Oversight is exercised through the standing committees, the select committees as and when they are created.

There are a number of factors that should, in theory, make oversight more effective than in a parliamentary system such as the UK's. Traditionally, US party discipline is weak, and congressional careers are based around the permanent standing committees rather than promotion to the executive. However, although there have been high-profile exceptions, such as the investigations into Watergate and Iran Contra (both some time ago), the reality is that oversight is not always effectively carried out. More recently, as partisan loyalties have strengthened, they have acted to undermine oversight. When the presidency and Congress were controlled by the same party, as they were by Republicans 2002-06, oversight declined and Congress was accused of being asleep on the job. Since the Republicans took over the House in 2011, the Oversight Committee under the chairmanship of Darrell Issa has vigorously scrutinised the administration on a variety of issues such as the 'Fast and Furious' operation and the IRS-Tea Party affair. However, it has been seen by many as being more preoccupied with inflicting political damage on the president than carrying out an objective investigation.

The motivation of members of Congress is also a factor. Like all politicians, members of Congress are driven in large part by a desire to be re-elected, and oversight offers them little by way of benefits either to themselves or their constituents. Nor does it improve their chances of re-election. Some members, such as Darrell Issa, will seek to make a name for themselves as zealous pursuers of executive incompetence but they are relatively few in number.

The separation of powers and high levels of checks and balances in the Constitution put Congress in a strong position to provide checks on the executive branch in particular. Oversight of the executive branch occurs when Congress scrutinises or limits its actions.

As well as congressional checks, which are created by the Constitution, a major part of the oversight process comes from the committees created by Congress. They can check the executive in a number of ways.

·    Most committees are policy-based and conduct oversight based on their policy expertise. Typically they investigate a department and hold hearings for executive members.

·    The House Committee on Oversight and Reform has the sole role of scrutinising the executive. In the years before the 2016 election, committee chair Jason Chaffetz used the committee to investigate Hillary Clinton's use of a private email account for her work as Secretary of State.

·    Congress can create temporary committees to provide oversight if an event of concern arises. Congress created the House Select Committee on Benghazi in 2014, after the US ambassador to Libya was killed there.

The effectiveness of congressional checks may be limited. Congress may be restricted by the extent of presidential power. Congress may be unable to provide checks on the president where the president makes use of certain presidential powers. The theory of the `imperial presidency' suggests that the president has a number of tools to bypass these checks. For example, by using executive orders directing the executive branch to carry out a policy in a certain way, the president can effectively create new policies without passing legislation through Congress. Congress has criticised President Obama for his many executive orders on gun control, immigration and federal pay. President Trump was criticised for the high number of executive orders he issued in his first weeks in office, making it difficult for Congress to examine the implications of each one.

There are also a number of factors that influence the relationship between the president and Congress, such as the policy area itself. The extent to which these checks are effective changes a result of changing political circumstances. In other words, the power to vote against presidential proposals is more likely to be used if the president or policy is unpopular.

In addition, if the president and Congress are of the same party, given the increasingly partisan nature of Congress, oversight might be limited. In 2017 Devin Nunes, Chair of the House Intelligence Committee charged with investigating alleged Russian involvement in the US elections, was criticised for his lack of independence from Trump. Nunes travelled to the White House to view security documents rather than having these documents open to scrutiny by the whole committee. He drew criticism from both Democrats and Republicans with Senator John McCain saying, `You've got to have a bipartisan approach to an issue such as this if you want to be credible.' Congress is supposed to act as a watchdog on the executive branch, but can go from attack dog to lap dog, depending on which party is in control.

Factors influencing the relationship between Congress and the presidency

Party control. If the president’s party holds a majority then the relationship between the two branches is likely to be cooperative. Under divided

government, a president is likely to face stronger oversight and a competing political agenda. In this sense it could be argued that President Trump worked

more cooperatively with Congress in his fi rst 2 years than Obama was able to in his final 6 years.

■ Policy area. The dual presidency theory suggests that the president is much more constrained in domestic policy than foreign policy. This can be seen with

the use of executive agreements or the president initiating military action without congressional consultation as Obama did in Libya in 2011.

■ The popularity of the president. Presidents can usually wield greater influence when they are at their most popular. Congress is more likely to accede to their wishes out of a desire to maintain popularity. Members of Congress from both parties can be affected by this.

■ Partisanship. The longer term rise in partisanship has had a major effect on presidential-congressional relations, as we shall see later. In short, when the

president has a majority there is less resistance to his agenda.

    

2020 examples:

New York Times Article Nuclear Arms Deal

Case study  CNN  Congress Russia investigations

Case Study  Trump's Taxes

Unlike all recent presidents Trump did not reveal his tax record when he was elected. After the Democrats gained control of the House of Representatives committees began oversight investigations in to Trumps finances and subpoenaed his tax records - Trump fought this in the courts. The Supreme Court decided that while in principle Congress had the right to subpoena the president's finances they had not refined their request narrowly enough and so returned the case to the lower courts (to be decided sometime in 2021) but they did decided that the President could be subpoenaed by the New York prosecutors instigating his possible obstruction of justice. The cases were Trump v Mazars (returned to lower courts) and Trump v Vance (New York)

In Congress, oversight comes in many forms including:

‘Necessary and Proper’

While the Constitution does not formally grant Congress the authority to oversee the actions of the executive branch, oversight is clearly implied in the many enumerated powers of Congress. The power of congressional oversight is reinforced by the “necessary and proper” clause (Article I, Section 8, Clause 18) of the Constitution, which grants Congress the power

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The necessary and proper clause further implies that Congress has the power to investigate the actions of the executive branch. It would be impossible for Congress to apply its oversight powers without knowing whether federal programs are being administered properly and within their budgets and whether executive branch officials are obeying the law and complying with the legislative intent of the laws.

The U.S. Supreme Court has confirmed the investigative powers of Congress, subject to constitutional safeguards for civil liberties. In the 1927 case McGrain v. Daugherty, the court found that, in investigating actions taken by the Department of Justice, Congress had constitutionally considered a subject “on which legislation could be had or would be materially aided by the information which the investigation was calculated to elicit.”

The January 6th Committee

 The investigation by Congress into the events of 6 January 2021 was set up following the attack on the US Capitol on that day by supporters of President Trump. On 6 January, members of Congress and the vice president were certifying the 2020 election result in which President Biden had been declared the winner. Protesters who disagreed with the announced result of the election gathered outside the Capitol building, and ultimately more than 2,000 of them broke through police lines and entered the building. This led to the suspension of congressional activities while the situation was brought under control.

Nancy Pelosi initially wanted  the events of 6 January  to be investigated by a commission. This would have had joint membership from the House of Representatives and the Senate specifically to investigate the events of that day. A commission would have had greater status and authority. Howevert this  failed due to a filibuster in the Senate, and therefore the House Select Committee on the January 6 Attack was set up instead.

 While President Trump was impeached for ‘incitement of insurrection’ on 6 January, he was ultimately found not guilty by a vote of 57–43. Therefore, the House Committee was set up to investigate ‘changes in law, policy, procedures, rules, or regulations’ to prevent future acts of violence, and ‘to strengthen the security and resilience of the United States and American democratic institutions’.

 The committee   did not have the power to punish Trump. However, their findings could be used by the Department of Justice in its continuing investigations and prosecutions of those involved in the attack of 6 January 2021. It has also been widely carried by news organisations, including their public hearings held throughout the summer of 2022.

Speaker Nancy Pelosi (D) of the House of Representatives formed a House select committee to investigate the 6 January 2021 insurrection at Congress. The vote passed, with all House Democrats and two House Republicans, Representatives Kinzinger and Cheney, voting for the committee and most Republicans voting against it. The vote allowed Pelosi to appoint eight members to the committee and House minority leader, Kevin McCarthy (R), to appoint five. However, Pelosi disallowed two of McCarthy’s picks as they had voted to invalidate the results of the 2020 election. As a result, McCarthy withdrew all of his picks. Pelosi therefore appointed seven Democrats to the committee and two Republicans – Kinzinger and Cheney. From the outset, therefore, polarisation of US parties was evident in the investigation into the 6 January insurrection, and highlighted the limits on the power of Congress in a hyper-partisan environment.

The committee interviewed over 1,000 witnesses and reviewed over 100,000 records. A number of these witness came from President Trump’s inner circle of aides, including his chief of staff, Mark Meadows. The committee decided to hold a series of public hearings in which members could hear from key witnesses and showcase what the investigation had uncovered. These public hearings were broadcast on primetime television. The committee aimed to influence public opinion on the events of 6 January 2021. The witness at these hearings included police officers on duty on Capitol Hill. The hearings were watched by around 13 million people per day, with some sessions gaining more than 20 million viewers.

Impact?

Liz Cheney of Wyoming lost her primary to a Trump-endorsed rival, Harriet Hagemen. Cheney’s concession speech highlighted her belief in the work that she had done on the January 6 Committee, while recognising that it had resulted in her defeat.

 A poll by CNN in July 2022, found that following the public hearings, 69% of Americans deemed the events of 6 January 2021 to be a crisis for the USA – up only a little from 65% earlier in 2022. This suggests the committe had litte; impact on public opinion despite the headlines and primetime television reporting. TV news and select committees do not have the influence they once had.

Following recommendations from the January 6 Committee, Senators Manchin (D) and Collins (R) introduced the Electoral Count Reform Act. The Act aimes to clarify the 1887 Electoral College Act, notably outlining the vice president’s role in the election process as only ministerial. This was in response to President Trump’s claim that Vice President Pence had the constitutional right not to validate the results of the 2020 election.

The summary of the report which was  184 pages long, made the following recommendations:

1. Recommendations of criminal referrals of Donald Trump (and others) to the Department of Justice on the following counts:

2. Recommendation that four Members of Congress be referred to the House Ethics Committee for failure to comply with a subpoena, including House Minority Leader Kevin McCarthy.

The first recommendations will mean the Department of Justice now take the evidence gathered by the Committee and consider bringing criminal charges against Donald Trump and members of his administration.

Conclusions

Increasing partisanship is undermining the validity of Congressional oversight.House Republicans continue to investigate the Biden family's finances, and they opened an impeachment inquiry into President Joe Biden in September as part of that effort.

They allege they have uncovered evidence of the president's knowledge of and role in his family members' domestic and foreign business dealings.

They have not yet shown President Biden committed an impeachable offence or provided any evidence of wrongdoing.

The panel escalated its probe on 8 November by sending subpoenas to Hunter Biden, as well as six of his relatives and two former associates.