People love to complain about Congress – especially about Congressional investigations. But should we?
The other day I was answering email in my office with the door open. A secretary just outside was discussing current events with her boss, a colleague of mine. The news had been full of scandals involving the executive branch of the US federal government; represented in media parlance as “The White House”. The Internal Revenue Service (Treasury Department) had been caught targeting conservative groups who were applying for tax exempt status, the Justice Department had been discovered illegally obtaining records from the Associated Press, and the State Department may have bungled the US response to the attack on Benghazi and then lied to cover it up. Adding insult to injury, the Secretary of the Department of Health and Human Services has been accused of seeking donations from organizations that she regulates; a brazen conflict of interest and abuse of power if true.
Their conversation was loud, but not contentious. The secretary, a government service worker recently told that due to budget cuts she would have to take 11 days of unpaid furlough this year, said “Why is Congress wasting its time on political investigations like these when there is real work to be done?” Her boss, a senior military officer, agreed that such investigations distracted lawmakers from the real problems confronting the nation. The discourse ended about as quickly as it had begun, and Congress’ reputation, at least in the minds of these two Americans, sank even lower.
Were they right? Should Congress focus on “the issues” and eschew investigations of the other branches of government as a matter of course? If so, how do we define the issues that Congress needs to explore and which ones they do not?
The first place to seek an answer to this question is the Constitution of the United States, the guiding document for the US Federal Government. In it we discover that every part of the Constitution, from the Preamble “Establish Justice” to the Amendments implies that Congress has investigative authority or responsibility within the Federal Government. Mentions of “impeachment,” “define and punish,” and “establish tribunals” are examples. Further, state colonial legislatures and the British Parliament had investigatory powers, thus providing the legal precedent for the US Constitution.
The Founders did this to balance power between the Executive, Legislative and Judicial Branches of the Government. Congress, the legislative branch, was to be preeminent since it had the tightest connection to the people. The delegates spent more time and ink on defining Congress than any other branch. It was not, however, to become an oligarchy. The Presidency, the executive branch, was to be secondary since investing too much power in one man was sure to lead to tyranny, the very thing that the Americans had just fought a war to depose. The Supreme Court was to balance the other two, and received the least time and ink of all.
Congress’ power to investigate has been prominent throughout history. In 1792 it established a committee to investigate the defeat of General St. Clair and his army by Indians in the Northwest. In 1868 it impeached and nearly removed Andrew Johnson from the presidency. In 1998 it impeached Bill Clinton for obstruction of justice and perjury. Congress sometimes investigates and removes its own members for wrongdoing. Though I have mentioned only the first and some of the most prominent cases, Congress is very commonly engaged in some type of investigation.
The US Supreme Court has repeatedly reaffirm Congress’ right and responsibility to investigate issues that impact its ability to perform its functions, such as enacting legislation. McGrain v. Daugherty, 273 U.S. 135 (1927) supported Congress’ right to investigate, including issuing personal subpoenas, presuming that the object of the Senate in investigating it was to aid in legislating it. One of the most famous of these cases was United States v. Nixon, 418 U.S. 683 (1974).
Shortly after the conversation, I came to a stopping point on email and went to speak to the secretary. She had an open Bible on her desk. I pointed at it and said “You know, that book teaches that man is not inherently good or trustworthy, and Congress’ responsibility to investigate comes directly from that fact. Congress scrutinizes situations to find the truth about them and maintain the balance of power between the branches of the federal government.”
To her credit, the secretary had listened and considered carefully. She replied “that makes sense, and so Congress has to balance investigations and issues to do the best work for the American people.” She was right, and we ended with a smile.