Hearings Loss

Newt Gingrich's Contract with America was mainly a legislative manifesto. But the landmark 1994 election also gave Republicans control of congressional oversight and investigative duties. To oversimplify only slightly, Republican congressional hearings have been used mainly for three purposes—for partisan attack, to harass and hobble regulatory agencies, and to further the GOP's pro-corporate agenda. In general, the Republicans have abandoned any serious effort to use congressional oversight powers to challenge corporate capture of agency missions or to launch meaningful investigations of serious social problems—concentration of wealth, homelessness, lack of health coverage, corporate environmental abuses, and so on. Even the GOP's libertarian agenda has been selective, largely ignoring government attacks on the rights of citizens. While Republicans, joined by a number of Democrats, have legislated significant expansions in police powers of government through anti-immigration laws, prosecutorial and search-and-seizure excesses, and other assaults on privacy and civil liberty, Republican legislators have used their control of congressional oversight to rein in just one agency, the Internal Revenue Service. And that, of course, had more to do with their antitax agenda than with a consistent concern for individual liberty.

This is not to represent the Democratic Party as a consistent paragon of investigative excellence. In the waning years of Democratic control, the party drifted in the direction of capture by the same corporate special interests. But in the heyday of Democratic progressivism, committee investigations often served to spotlight a wide range of flaws in American society and government and to pursue public remedy. Many Democratic committees used the oversight function to make sure agencies were doing their jobs to benefit ordinary citizens, not to discredit the role of government per se. They served as a crucial democratic counterweight against the natural tendency of government agencies to be captured by the industries they regulate, nurture, or contract with.

The Democratic Party, of course, has always been a coalition. Earlier in this century, it was a coalition of northern and western reformers and southern racists. More recently, it has been a coalition of pro-labor liberals and pro-business centrists. As late as the 1960s the same party could sponsor, say, the dramatic series of hearings led by Senators George McGovern and Robert Kennedy on hunger and poverty, and also have John Stennis of Mississippi serve as the pro-military chair of the Senate Armed Services Committee, the racist James Eastland as chair of the Judiciary Committee, and John McClellan's Permanent Subcommittee on Investigations wield its power mainly as a Red Squad.

Even so, the postwar era of Democratic control saw genuine progressives chair key committees and use them to shed light on abuses of both society and government—people like Senator Frank Church of Idaho, whose foreign relations subcommittee investigated the oil industry and the role of multinational corporations generally; Warren Magnuson, the great populist from Washington State whose Senate Commerce Committee spotlighted an array of anticonsumer abuses; Philip Hart of Michigan, the longtime chair of the antitrust subcommittee; William Proxmire of Wisconsin, who used both the Senate Banking Committee to investigate the bilking of consumers by banks and the Joint Economic Committee to investigate military contracting abuses that Stennis ignored; and several more. A whole generation of Senate progressives was swept aside in the Republican takeover of 1980.

In the House, progressives like Henry Waxman and Fortney (Pete) Stark investigated the human cost of the lack of health coverage, as well as the conflicts of interest in the medical-industrial-pharmaceutical complex. And lesser-known congressmen such as George Brown, Don Edwards, and John Moss, all of California, used their positions to investigate, respectively, science and technology policy, assaults on civil liberty, and privacy. John Dingell of Michigan, the longtime chairman of a key subcommittee and later the full House Commerce Committee, investigated a wide range of issues, from contractor fraud to childhood vaccines.

In that era, there was also an effective three-way alliance between public interest groups, investigative reporters, and committee staffs. Journalists like the great, now retired, Morton Mintz of the Washington Post not only reported but helped fuel successful hearings. Coverage of important congressional hearings by these reporters constituted both the political "reward" for conduct and the means to transmit congressional findings of government and corporate abuse to the public. Public outcry then fed back into the system, creating momentum for corrective action. Sometimes it was journalists or activists who uncovered abuses that led to hearings. Sometimes committees moved first, giving reporters material to grant readers and activists legitimacy for their own efforts. This synergy is now effectively gone.

Three good illustrations of this problem are the contrasting stances toward the health and pharmaceutical industries, banking and thrift sectors, and labor, under Democratic and Republican control. In the 1960s and 1970s, Senator Gaylord Nelson used his chairmanship of the Small Business Committee's Subcommittee on Monopoly to conduct an ongoing decade-long investigation into Food and Drug Administration procedure and drug regulation. In the 1980s his House counterpart, New York Representative Ted Weiss, held a series of hearings on a variety of drugs and medical devices—such as Zomex, Oraflex, E-ferol, and silicone breast implants—that resulted in removal of the products from the market, criminal prosecutions of companies for failing to provide data to the FDA, and major revisions in the agency's review process. Other key congressmen with FDA jurisdiction were L. H. Fountain of North Carolina and Henry Waxman of California. All of this served to counterbalance the FDA's natural coziness with the drug industry. Far from being simply "anti-industry," the progressive oversight function sought to ensure an efficient agency process both to approve new drugs and to protect the public health and safety.



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By contrast, at FDA oversight hearings now—under Texas Representative Joe Barton, who chairs the House Commerce Subcommittee on Oversight and Investigation—there is pressure on the agency to approve drugs more rapidly or to push privatization of the testing and other functions where caution and noncommercial motives are crucial. Congress's oversight function has tilted so far that Congress has become a simple ally of the industry. Barton, whose subcommittee counsel is Alan Slobodin, former president of the right-wing Washington Legal Foundation, has bullied former FDA administrator David Kessler and other top FDA officials at hearings, accusing officials of lying under oath, overzealous enforcement, and "retaliation" against makers of medical devices, drugs, and food products.

Consider also the banking committees. From the 1960s through the early 1990s, they were led for long periods by two great Texan populists, Wright Patman and Henry Gonzalez in the House, and William Proxmire in the Senate, who chaired a key consumer subcommittee and later the Banking Committee. All were crusaders for wide availability of credit and for consumer rights. Under that generation of banking chairs, committee investigations highlighted deceptive practices on credit reporting, interest overcharges, race and gender discrimination, mortgage redlining, and abuses in the securities industry. They relentlessly scrutinized the Federal Reserve Board for its tendency to favor creditors with tight money policies.

In between the tenure of Patman, who was replaced in 1975, and Gonzalez, who became chair in 1989, a pro-industry Democrat, Fernand St. Germain of Rhode Island, took over the House Banking Committee. After Republicans took control of the Senate in 1981, St. Germain worked closely with the new Republican banking chair, Jake Garn of Utah, to carry out a program essentially drafted by industry and the Reagan administration to deregulate savings institutions. Agencies were pressured to loosen the supervisory reins. Hundreds of billions of dollars in loan losses and a taxpayer bailout followed. Once again, the crucial congressional function of preventing agency capture by the regulated industry went by the boards.


Laboring for Business


Another revealing indicator is the hearing schedule in the 105th Congress of the congressional labor committees—the Senate Labor and Human Resources Committee and the House Committee on Education and the Workforce. The Senate committee has paid practically no attention to labor issues. Last June, it held a hearing on child labor in the United States—and that was it for 1998. In 1997 the committee was a bit more active on labor issues, though it conducted virtually no oversight hearings and mostly made decisions hostile to working people. Its nonlegislative hearings consisted of one titled "Divided Loyalties: The Impact of Salting in the Workplace," an attack on the union practice of getting organizers hired in nonunion plants; an Occupational Safety and Health Ad ministration (OSHA) oversight hearing; a deregulatory-oriented Fair Labor Standards Act oversight hea ring; a handful of hearings on vocational rehabilitation and job training; and a field hearing on "Innovative Workforce Development Initiatives." Among the legislative hearings of the committee were sessions promoting the TEAM Act, an effort to legalize company unions.

As bad as the Senate may have been primarily through inaction, things were far worse for working people in the House. There, in 1997 and 1998, the Committee on Education and the Workplace held a series of hearings on "The American Worker at the Crossroads." A hearing on "The Administration's Proposed Contracting Regulations: 'Good Government or Blacklisting?'" attacked a Clinton administration proposal to require government contractors and their subcontractors to pay union wages. There was no labor witness. Another hearing promoted company unions and homework. Two hearings, "Evaluating the Regulatory Practices of the Department of Labor" and the "Potential for Arbitrary Behavior by the Labor Department," criticized the Labor Department's practice of praising employee-friendly companies as a kind of "blacklisting"—of those left off the list. Three of the nine hearings held by the Employer-Employee Relations Subcommittee in 1998 were on "Impediments to Union Democracy"—a crucial topic, to be sure, but not one examined in good faith by an anti-union committee. The Subcommittee on Workforce Protections has used its authority to hold hearings attacking virtually every aspect of the functioning of OSHA. With 12 witnesses at two OSHA hearings, the subcommittee heard from the head of OSHA, a single labor representative, and ten industry witnesses.

With U.S. wages still far below 1973 peak levels, one in ten union supporters illegally fired, the right to strike severely compromised by increasingly vicious and widespread union-busting strategies, and deaths from occupational disease far outdistancing those from handgun violence, one might reasonably hope for at least an occasional hearing devoted to the awesome problems confronting U.S. workers, even with a pro-business Congress. But on this issue, as with FDA oversight, the Republicans have turned their investigatory and oversight powers to destroying rather than upholding laws, agencies, and institutions that provide some countervailing force, however weak and inadequate, to corporate power.

By contrast, the labor committees a decade ago, under Democratic control, at least investigated employer abuses and the Reagan administration's failure to properly enforce worker rights and workplace-safety legislation. In 1987 and 1988 the Senate Labor and Human Resources Committee held investigative hearings on plant closings and job training issues, in addition to holding two oversight hearings on the Mine Health and Safety Administration examining agency bias in favor of coal companies; two on OSHA; and one on underenforcement of the National Labor Relations Act. It also held hearings on polygraphs and employee privacy, workplace safety, increasing the minimum wage, parental leave proposals, day care, construction worker organizing rights, assisting displaced workers, and the "Guaranteed Job Opportunity Act." With its House counterpart, it held investigative hearings on a major mine disaster and underfunded pensions. The House Education and Labor Committee, meanwhile, held oversight hearings on job training; scrutinized Reagan administration performance at OSHA, the National Labor Relations Board, and the Mine Safety and Health Administration; and looked at Reagan administration enforcement of the Fair Labor Standards Act and black lung benefits programs. In investigative hearings, it looked at abuse of migrant worker rights and the effect of deregulation on workers; and in legislative hearings it considered proposals to increase the minimum wage, strengthen employees' collective bargaining rights, soften the blow to displaced workers, and make pensions portable.


A Corporate Alliance


Even in areas less politically radioactive than labor relations or the FDA, Republicans in the majority have done an inferior job, letting the oversight machinery rot or using it for partisan purposes. Most important in explaining this change is Republican fealty to a corporate and ideological agenda that counteracts the use of oversight and legislative powers to combat agency capture or laziness. The alliance with business manifests itself in a number of ways in the oversight process, and there are an array of complementing factors:

  • Inexperience. Having spent decades in the minority, the Republicans do not have long-cultivated experience at running investigative hearings. During the long period of Democratic control, there was continuity in committee staff, even as committee chairs changed. According to Jake Lewis, who supervised major investigations for the House Banking Committee from 1965 to 1992, this produced the result that "oversight efforts continued in many areas uninterrupted from Congress to Congress." By contrast, he says, "much, though not all, of the Republican staff is new and inexperienced, with little knowledge of areas that might be fertile oversight-study arenas."

  • Dismantling of the General Accounting Office (GAO). Democrats long relied on the GAO—an independent congressional investigatory agency—to supplement committee staff, having GAO staff detailed to specific committees and drawing heavily on specialized GAO expertise. When the Republicans gained control of the House in 1994, they cut the budget of the GAO by a quarter and eliminated a third of its positions, reducing the agency's staff to 3,500—its lowest level since before World War II. In the process, the GOP sharply diminished its own information-gathering and analysis capabilities.

  • Heavy reliance on industry information. With Republicans in many cases inviting business interests to write regulatory (or deregulatory) legislation, it should be little surprise that the GOP tends to rely heavily on the studies bought by corporate lobby shops. "Banking and bankruptcy bills have been supported by studies with only a thin veneer of objectivity covering the corporate pitch," notes Lewis. Acting at the behest of the credit card industry, for example, members of Congress have waved industry-backed studies showing an epidemic of fraudulent "bankruptcies of convenience" to justify bankruptcy law reform that will severely penalize the poor. Lewis says, "GAO studies often put the lie to these lobbying vehicles." A February 1998 GAO review of the leading industry study on bankruptcy found that the "study's fundamental assumptions were not validated." This is "another reason that the Republican majorities want to keep GAO shorthanded," Lewis adds.

  • Witness selection. To varying degrees, Democratic-controlled committees were receptive to testimony from public interest organizations that were ready to criticize both the performance of executive agencies and the industries they regulate. Michael Pertschuk, chief counsel and staff director of the Senate Commerce Committee from 1968 to 1977, recalls, "I instructed staff members as follows: You will not need to reach out for industry witnesses—they will find their way to your door. Getting public interest, not special interest, testimony is your challenge as a staff person. You've got to seek out the public interest experts, whether in a university or some obscure nonprofit, and make sure the committee gets to hear testimony 360 degrees around the issue."

    Under Republican rule, "public interest" witnesses from the Heritage Foundation and the Cato Institute are common; but it is rare that more than a single, pro forma, spot is left available for public interest witnesses critical of business interests or Republican ideological predispositions.

  • Shift in the terms of political debate. In the effort to at least make the pretense of fairness, committee chairs, whether Democrat or Republican, generally try to permit "the other side" to be represented at hearings. Bill Zavarello, a former oversight committee staffer under Representatives Barney Frank and Maxine Waters, notes that with aRepublican Congress and a Democratic administration, "the administration becomes the ideological pole" of progressive opposition even though frequently the Clinton administration's position is "very close to what the Republicans' view is." More progressive viewpoints are shut out altogether. Prime examples are trade policy and banking.

  • Intensified partisanship. Their compatibility on many issues notwithstanding, many congressional Republicans have a visceral hatred for the Clinton administration and have used their oversight powers mainly to attack its officials. "Oversight now is defined as going after political appointees," says Danielle Brian, executive director of the Project on Government Oversight, a D.C.-based public interest group. With so many committee resources going into making political points, there is little committee time and energy left over to protect the taxpayers from agency mis-, mal-, or nonfeasance, says Dennis Kane, chief investigator for the House Banking Committee under Henry Gonzalez from 1987 to 1995.

  • Diminished respect for the institution of government. With the Republican Party effectively antigovernment except on issues of defense and corporate welfare, it follows that GOP committees do not use oversight hearings to hold federal agencies to a high standard of public interest performance. "The Republicans are mostly interested in tearing down government," says Pertschuk. "The members I worked for were much more interested in making government work."

It remains to be seen what a Democratic return to power would bring. Today's Democratic Party is rather more pro-business than its counterpart a generation ago. By the 1980s, the Democratic appetite for pro-consumer investigation was already waning. Many committees, such as the House Ways and Means, had evolved into personal fiefdoms. Some of these despotisms were relatively benign, others corrupt. Chairs like Dan Rostenkow ski were more interested in using their power to milk the system than to police it. In some areas, the difference in party performance in oversight and investigation has been one only of degree, not of kind. Most notable in this regard, perhaps, is the defense sector. For decades, says A. Ernest Fitzgerald, the top Pentagon whistleblower and author of The Pentagonists and The High Priests of Waste, the defense committees worked hand in glove with the Pentagon. While acknowledging that oversight may have become somewhat worse with the Republican takeover of the House in 1994, Fitzgerald marks 1992 as a much more important turning point. With a Democrat in control of the White House, he says, Democratic members of Congress ratcheted down their already minimal commitment to Pentagon oversight. Today, he says, "a consensus between and among the branches of government has brought about" a situation where "contractors are overtly running the show."


Money and the Oversight Culture


By the time Republicans returned to power in 1995, the legendary activist Democratic committee chairs were already a vanishing breed. Pertschuk says, "A group of committee and subcommittee chairs who were strong public interest advocates rose to power in the late 1960s and 1970s [as] the product, in the Senate, of the elections of 1958 and, in the House, of the Johnson sweep in 1964."

As this group faded from office, Pertschuk suggests, it was replaced by "a new generation of legislators who were more interested in self-promotion, more responsive to polls, and more involved in campaign fundraising."

Dennis Kane traces a marked shift, in the House at least, to 1983, and the rise of Tony Coelho to a Democratic leadership position. With Coelho, he says, Democrats increasingly focused on attracting business campaign contributions. He says that the prevailing attitude became: "We're in power, and we should get money from business." Commitment to investigation and oversight dropped concomitantly, he suggests. The changes in Democratic Party performance and the lack of effective oversight with Congress under Republican control also reflect broader political transformations. The decline of the labor movement and various social movements has weakened the progressive tug on legislators. The dramatic inflation in the cost of congressional races has increased legislators' obligation to organized business. Members fear that aggressive oversight and investigative hearings "will piss off someone who is going to give them money or already does," says Danielle Brian. These factors transcend party.

So does a cultural shift identified by Morton Mintz. Investigation today is less analytical and more sensationalist. While CBS's 60 Minutes occasionally manages to bridge that gap, most of television's investigations are of the tabloid variety, and there are few Morton Mintzes in the print press. "I would not be allowed to do what I did in a different era," Mintz says, arguing that editors would not regularly give a serious reporter the time and flexibility needed to carry out breakthrough investigations. Today, he says, "sound bite hearings and sound bite journalism" all feed on each other.

A Democratic return to power in the Congress—highly unlikely in 1998 but still conceivable for 2000—would likely correct the most egregious Republican abuses of the oversight process, and that would certainly be a major step forward. But by itself a new Democratic majority would not produce a resurgence in congressional oversight and investigation. That renewed commitment seems likely to require much more fundamental political change than a shift in the party in power.



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