CONGRESSIONAL PRECEDENTS AND POWERS

Many of the ongoing congressional oversight authorities and activities date to the earliest days of the Republic under the Constitution. These initial endeavors serve as precedents for contemporary congressional efforts to extract information about Government operations, probe the executive for suspected wrongdoing, and assess the viability and feasibility of programs. The genesis and multiple reincarnations of oversight authorities and activities are illustrated by the statutory reporting requirements imposed on the executive and specialized congressional investigations of the executive.

Reporting Requirements

The First Congress instituted the first reporting requirements on the executive. The 1789 Treasury Department Act called upon the Secretary of the Treasury: ``to make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office . . . .''19

The same enactment directed that the Treasurer shall ``on the third day of every session of Congress, lay before the Senate and House of Representatives, fair and accurate copies of all accounts by him . . . and a true and perfect account of the state of the Treasury.''20

Reports from different executive offices and officers grew in quantity and the information contained in them grew in importance. Reflecting these dual developments, the House of Representatives adopted a rule (Rule III, Clause 2) in 1821 requiring the Clerk to provide each Member of Congress with ``a list of the reports which it is the duty of any officer or Department to make to Congress . . . .''

Number of Reports

Over the past two decades, the number of reporting requirements has multiplied.21 An estimated 1,000 requirements for reports existed in 1973. By 1980, the total grew by 50 percent, to 1,500. And in 1992, the amount had expanded by an additional 242 percent, to 3,627. Even though some existing requirements have been repealed -- in part, through efforts of the House Government Operations and Senate Governmental Affairs Committees, the Office of Management and Budget, and the General Accounting Office -- many others, quite obviously, have been added.

Types of Reports

Congress receives reports from executive and administrative agencies based not only on directives in public law but also on accompanying congressional committee reports or floor statements and on agreements between administrative agencies and legislative panels. Some of these reports are periodic or recurrent, usually annual or semiannual, while others are episodic, triggered by a specified event. Still others are one-time reports, providing information or recommendations, for instance, from study commissions and task forces or from executive officials about the completion of a particular project.

The different types of reports, their importance for oversight, and reasons for their adoption and evolution over time are illustrated by two different reporting requirements. One involves inspectors general (IGs), who consolidate authority for audits and investigations within their parent agency; and the other involves covert operations abroad.

Inspector General Reporting

Offices of inspector general, established to combat waste, fraud, and abuse in Federal programs, now exist in 61 Federal establishments and entities, including all 14 cabinet departments, the largest Federal agencies, and numerous commissions, boards, foundations, and government corporations. Under the Inspector General Act of 1978, as amended, the IGs are required to issue two types of reports which are sent to the agency head; the head must transmit these reports, along with his or her comments, to Congress within a specified time period: (1) a semiannual report, summarizing the IG activities, findings, and recommendations for corrective action, is to be transmitted to Congress within 30 days; and (2) a report discovering ``particularly serious or flagrant problems,'' within 7 days.22 The latter type of reporting authority, however, is rarely activated; the 7-day letter reports appear on the average of only once a year for all the IGs.23

Covert Action Reporting

The requirement for reports by the President on covert action abroad has been caught up in controversy since 1974, when the first such obligation appeared in public law.24 Through the Hughes-Ryan Amendment (Public Law 93-559) Congress for the first time required the President to make a finding that such covert operations were essential to the national security interests of the United States and to report ``in a timely fashion, a description and scope of such operation to the appropriate committees of Congress,'' with the Senate Foreign Relations and House Foreign Affairs Committees specifically cited. The adoption of the Hughes-Ryan Amendment came in the aftermath of revelations of CIA covert operations abroad, including some of which helped to destabilize elected governments. The following year, 1975, Congress for the first time halted a covert operation, cutting off funds for military and paramilitary operations in Angola. The ban was extended in 1976 and remained in force for a decade. Other congressional investigations, including those conducted by temporary select committees in the House and Senate (i.e., the Pike and Church Committees in 1975-1976), discovered or verified a wide range of covert operations during the cold war era, including assassination plots against foreign leaders.

By the end of the 1970s, there were eight ``appropriate committees'' of Congress, four in each Chamber; these included the Senate and House Select Committees on Intelligence, created in 1976 and 1977, respectively. In 1980, Congress and the Carter Administration reached an accommodation to revise the reporting requirements; each branch received what it sought in a quid pro quo through the 1980 Intelligence Oversight Act (Public Law 96-450). As the Administration requested, the number of panel recipients was reduced from eight to two (i.e., the Intelligence Committees). For Congress, the new law imposed additional reporting obligations on the executive, expanding the scope, volume, and timeliness of information about intelligence activities, including covert action abroad. The 1980 Act directed the intelligence agencies to keep the Select Committees on Intelligence ``fully and currently informed of all intelligence activities . . . including any significant anticipated intelligence activity,'' referring to planned covert operations. Notification was to be in advance, except when the President determined that ``it is essential to limit prior notice to meet extraordinary circumstances affecting the vital interests of the United States.'' Even then, he was to report to the so-called ``gang of eight,'' a bipartisan group of leaders of the House and Senate and of the Intelligence Committees; and he was to notify the Select Committees ``in a timely fashion'' about the covert operation and the reasons for not notifying them in advance.

This notification system broke down during the Iran-contra affair in 1985-1986 and the law governing intelligence oversight was again amended.25 The approved Fiscal Year 1991 Intelligence Authorization Act26 contains a series of new provisions for reporting on covert action. These include the requirements: that the President's findings be in writing and not retroactive, that all government agencies and entities (not just the CIA) be clearly covered, and that Congress be informed if a third party or another country might become involved (under the revised version of the Act, this party or country does not have to be named.). The statute, however, does not specify a time limit on reporting to the Select Committees on Intelligence if the panels are not notified in advance of a covert operation. President Bush, however, wrote that in ``those rare instances where prior notice is not provided, I anticipate that notice will be provided within a few days. Any withholding beyond this period will be based upon my assertion of authorities granted this office by the Constitution.''27

Special Investigations

Congress has embarked on specialized investigations of the executive throughout most of the legislature's 200-year history.28 Beginning in 1792, such investigations have become some of the most visible, dramatic, and sometimes traumatic of congressional activities.

In 1792, the House created a special committee to investigate the ignominious and unexpected defeat of an Army expedition force, led by General Arthur St. Clair, at the hands of the confederated Indian tribes in the Ohio Territory a year before. The committee was ``empowered to call for such persons, papers, and records, as may be necessary to assist their inquiries.''29 President George Washington, in a highly unusual meeting, conferred with all of his Cabinet officers about the unprecedented investigation. They agreed that the House had a right to conduct such an inquiry but that the President should release only such papers as the ``public good would permit and ought to refuse those the disclosure of which would injure the public.''30 While retaining custody of the original documents with the executive, Washington honored the panel's request for information by sending copies of the pertinent records; a House clerk verified them for accuracy and completeness.

As it turned out, the St. Clair episode set two important, although competing, precedents with regard to overseeing the executive. Congress established that it could conduct specialized inquiries and secure the executive-held information, even in highly sensitive, secret matters and, implicitly, involving the President's constitutional power as commander-in-chief. At the same time, the President established that he could control the release of the official documents, a harbinger of executive privilege.

During the intervening two centuries, Congress has embarked on a number of major investigations of the executive. These have often arisen because of allegations of executive misconduct, significant policy disputes between the two branches, and/or intense political conflicts between the dominant parties of the day or between and among factions within the majority party. In 1861, for instance, Congress created a Joint Committee on the Conduct of the War to examine the Lincoln Administration's handling of the Civil War. Other notable probes included investigations into the Credit Mobilier (1872-1873), the Money Trust (1912), the Teapot Dome scandal (1923), and defense spending during World War II (1943-1944).

The early cold war era witnessed major investigations into alleged disloyalty and espionage by executive personnel. These efforts -- spearheaded by the House Committee on Un-American Activities, the Senate Judiciary Subcommittee on Internal Security, and the Senate Government Operations Permanent Subcommittee on Investigations -- however, raised serious concerns about the rights of witnesses and criticisms about unsubstantiated claims which unfairly tainted individuals and entire agencies.

Significant congressional investigative efforts over the past quarter century and their impact include the following examples:





FOOTNOTES

19 1 Stat. 66. This provision, among others, aided later congressional inquiries into Alexander Hamilton's stewardship of the Treasury. The first Secretary of the Treasury eventually resigned under financial pressure and amid intense congressional scrutiny of his conduct. See Morris, editor, Alexander Hamilton and the Founding of the Nation, pp. 587-588.
20 Ibid.
21 Ellen C. Collier, ``Reporting Requirements,'' Joint Committee on the Organization of Congress, Congressional Reorganization: Proposals for Change, Senate Print 103-19, 1993. p. 135. For further information, analysis, and commentary, see: Ellen C. Collier, ``Foreign Policy by Reporting Requirement,'' The Washington Quarterly, vol. 11, Winter 1988; Pamela Fessler, ``Complaints Are Stacking Up As Hill Piles on Reports,'' Congressional Quarterly Weekly, vol. 49, September 1991; John Johannes, Statutory Reporting Requirements: Information and Influence for Congress In Abdo Baaklini, editor, Comparative Legislative Reforms and Innovations, New York, SUNY Press, 1977. pp. 33-60; Bruce Stokes, ``Studies, Studies, Studies,'' Government Executive, vol. 21, January 1989; U.S. House. Clerk. Reports To Be Made to Congress, House Document No. 102-23, 102d Congress, 1st Session. Washington, GPO, 1991; and U.S. General Accounting Office, A Systematic Management Approach Is Needed for Congressional Reporting Requirements, Washington, GAO, 1981.
22 5 U.S. Code Appendix 3.
23 This reporting technique was not used, for instance, to alert Congress about the scandal in the Department of Housing and Urban Affairs (HUD) during the Reagan Administration. Instead, the Inspector General relied upon the regular semiannual reports to notify Congress (and the Department Secretary) of the problems in the Section 8 Moderate Rehabilitation Program and related programs at HUD. See, Paul C. Light, Monitoring Government: Inspectors General and the Search for Accountability, Washington, Brookings Institution, 1993; and statements by Paul A. Adams, Charles L. Dempsey, and Frederick M. Kaiser on ``Congressional Oversight of HUD'' in Senate Committee on Banking, Housing, and Urban Affairs. Subcommittee on HUD/MOD Rehab Investigation, ``The Abuse and Mismanagement of HUD,'' Hearings, 1990. vol. II, pp. 448-492.
24 See, among others, Loch K. Johnson, America's Secret Power: The CIA in Democratic Society, New York, Oxford University Press, 1989. pp. 207-267; Crabb and Holt, Invitation To Struggle, pp. 163-192; and Frederick M. Kaiser, ``Congress and the Intelligence Community,'' in Roger H. Davidson, editor, The Postreform Congress, New York, St. Martin's Press, 1992. pp. 279-300.
25 House Select Committee to Investigate Covert Arms Transactions with Iran. Senate. Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, Iran-Contra Affair, House Report No. 100-433, 1987; Frederick M. Kaiser, ``Congressional Oversight of Covert Action: Impact and Implications of the Iran-Contra Affair,'' International Journal of Intelligence and Counterintelligence, Summer 1993; and Twentieth Century Fund Task Force on Covert Action and American Democracy, The Need To Know (Report of the Task Force), New York, Twentieth Century Fund, 1992.
26 Public Law 102-88; 105 Stat. 429.
27 Quoted in U.S. Congress. Committee of Conference, Intelligence Authorization Act, Fiscal Year 1991, House Report No. 102-166, 1991. pp. 27-28.
28 For details on congressional investigations, see, among others, Schlesinger and Burns, Congress Investigates; Taylor, The Grand Inquest; Mayhew, Divided We Govern; and Capitol Studies, vol. 5, Fall 1977. pp. 5-119.
29 Annals of Congress, 2d Congress, 1st Session. p. 494.
30 Cited in George C. Chalou, ``St. Clair's Defeat, 1792,'' in Schlesinger and Burns, Congress Investigates, p. 4.


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