When Senate Majority Leader Lyndon Johnson became vice president in 1961, he persuaded his protégé and successor, Senator Mike Mansfield of Montana, to let Johnson continue running the Senate Democratic caucus. The vice president, constitutionally and ceremonially, is Senate president, voting only to break ties. However, no vice president had ever proposed to function as a quasi-senator, much less caucus leader. Mansfield loyally acceded to Johnson's scheme, but the caucus rebelled. According to the official transcript quoted by biographer Robert Caro, Senator Mike Monroney of Oklahoma, a Johnson ally, indignantly warned, “We are creating a precedent of concrete and steel. The Senate will lose its powers by having a representative of the executive branch watching our private caucuses.”
Quite so. But what LBJ, the most powerful majority leader in Senate history, could not obtain by persuasion, Vice President Dick Cheney, who never served in the Senate, simply arrogated. Cheney regularly attends Senate Republican caucus meetings, sometimes accompanied by Karl Rove. Just in case Cheney and Rove needed help keeping the caucus in line, the Senate majority leader, Bill Frist, was handpicked by the White House to succeed the ousted Trent Lott.
“It's totally unprecedented,” says Democratic Senator Pat Leahy of Vermont. “The caucus is where you candidly discuss when to back the administration and when to adopt a different position.” This executive-branch capture of the senatorial Republican Party helps explain how the Bush administration, despite plummeting public support and scandal after scandal, avoids one of the most fundamental of checks and balances -- congressional oversight.
Congressional investigative hearings date back to March 1792, when the House of Representatives investigated a disastrously failed military mission into Indian territory, which left some 600 troops dead. President George Washington complied with the House's request for documents. A House select committee faulted the War Department's private contractors for supply failures. Premonitions of Halliburton -- except that the Republican Congress has declined to investigate Halliburton.
Despite skirmishes over executive privilege, congressional oversight has been a key part of our system, regardless of which party controlled which branch -- until the administration of George W. Bush.
The default of Republicans in Congress is staggering. No ongoing investigations on waste and incompetence at the Department of Homeland Security. Nothing on the vast self-serving mess that is the Medicare prescription-drug program. Nothing serious on the scandals by defense contractors in Iraq, or on Cheney's possible role in securing a $7 billion dollar no-bid contract for Halliburton, or on his secret energy task force. Nothing on the enforcement default by the Environmental Protection Administration and Occupational Safety and Health Administration. No serious oversight of the FBI. Precious little on the ongoing failure to rebuild New Orleans, or on Abu Ghraib and Guantanamo, or the illegal domestic spying, or on the Justice Department's failure to enforce the right to vote. Nothing on the data-mining program that has revived the supposedly discarded John Poindexter plan by the back door.
The first notable breach in this solid wall of complicity with the White House came only in early September when Republicans Chuck Hagel and Olympia Snowe broke with the Intelligence Committee chairman, Bush loyalist Pat Roberts, and voted with committee Democrats to force Roberts to make public a confidential report. The report repudiated White House claims of intelligence support for links between al-Qaeda and Saddam Hussein, and criticized the White House reliance on Ahmad Chalabi's Iranian National Congress. Even so, the committee report ducked the issue of administration manipulation of the intelligence community. This report gives a small glimmer of what checks and balances would be like, with a restoration of normal oversight.
Over the years, the most effective oversight has been bipartisan, often with the president's own party challenging his policies. Senator Harry Truman's Committee to Investigate the National Defense Program, beginning in 1941, eventually called 1,798 witnesses, held 432 hearings, issued 51 reports exposing procurement corruption, and saved taxpayers nearly $200 billion in today's dollars. Truman's tenacity, far from making him a pariah in his own party, led to his elevation to vice president. The Fulbright Committee's extended hearings between 1966 and 1971 legitimized doubts about the Vietnam War. Senator Frank Church's epic hearings into Cold War domestic spying abuses led to the passage of the 1978 Foreign Intelligence Surveillance Act that Bush is now flouting. The Church Committee's bipartisan investigation let the chips fall, unearthing abuses under Democratic and Republican administrations alike.
“Congressional oversight and investigation isn't just about the executive branch,” says one senior Democratic aide. “It's also about the private sector.” Congress has looked into patterns of wrongdoing in industries as diverse as pharmaceuticals, tobacco, banking, and funeral parlors. Until the Gingrich Congress and the K Street Project, such investigations served as a social check and balance, tempering the concentrated economic power of business.
Investigative hearings lay the groundwork for eventual reform legislation. The famous Pecora hearings of 1933 and 1934, exposing abuses on Wall Street that helped create the stock market crash, led to the Securities Act of 1933, the Securities Exchange Act of 1934, and the Public Utilities Holding Company Act of 1935. “It took a decade of bipartisan hearings on acid rain, from 1981 to 1990,” says this staffer, “for us to get the Clean Air amendments of 1990.”
Like oversight of the executive branch, serious monitoring of the private sector has also collapsed. “If you don't want to regulate, don't do any oversight,” says Dr. Sidney Wolfe, director of the Public Citizen Health Research Group. There is no longer a congressional counterweight to an fda now entirely beholden to the drug industry. Henry Waxman, as chairman of the Health Subcommittee of Government and Commerce prior to 1995, held dozens of investigative hearings on the drug and tobacco industries. This has ended. Under Republican rule, Chairman Billy Tauzin did have one hearing on tobacco. “They invited the chewing-tobacco people in,” Waxman notes, “to make the case that ‘smokeless tobacco' is a healthy alternative.”
Most Senate Republicans are pure loyalists. Intelligence Committee Chairman Pat Roberts does his best to prevent embarrassment to the administration. James Inhofe, who heads the Environment and Public Works Committee, investigates global warming -- using witnesses who deny the science. A Senate Banking Committee hearing on the systemic risks of hedge funds called exactly one witness, sec Chairman Christopher Cox. Senator Chuck Grassley held useful hearings on the Vioxx cover up by Merck nearly two years ago, but despite several other drug-safety scandals, has not held a repeat hearing.
A few GOP committee chairs occasionally make critical noises, only to be battered back by White House pressure. You may have noticed intermittent dissent from Senators Arlen Specter, John McCain, and Susan Collins. Didn't McCain object to abuses at Guantanamo and Abu Ghraib? Wasn't it Specter who attacked the illegal nsa spying program? And don't we recall Collins holding hearings on the Katrina debacle? Yes; but while there has been occasional Republican pushback on administration legislative schemes, oversight has mostly fizzled.
Judiciary Chairman Specter is a true moderate -- except when the administration squeezes him, which is nearly always. When Attorney General Alberto Gonzales, famous for evading questions, testified last February 6, Specter refused requests to have the witness sworn, as Attorney General Janet Reno regularly was. In response to objections from committee Democrats, Specter offered this double-talk:
“I have asked the attorney general whether he would object or mind and he said he wouldn't. And I have put that on the record. But the reason I'm not going to swear him in is not up to him. Attorney General Gonzales is not the chairman; I am.”
“Specter gets terrible pressure from Cheney,” says a Democratic senator. “When Specter threatened to subpoena telephone companies that were cooperating with illegal wiretapping, Cheney snubbed Specter and personally lobbied other Republican members of the committee to block him.” After a few weeks of tough talk, Specter embraced the administration position that Congress should pass a law to legalize the illegal wiretapping under Bush's power as commander in chief.
McCain worked with fellow Republicans Lindsey Graham and John Warner to make the Army field manual, which respects the Geneva Conventions, the standard for prisoner interrogations. This opposition surfaced again in early September, when the administration proposed legislation overturning the Supreme Court's June decision holding that its rules for interrogations and trials of detainees violated both the constitution and the Geneva Conventions. However, as we go to press, the Republican dissenters are likely to give the administration most of what it wants.
As chairman of the Indian Affairs Committee, McCain helped expose the Abramoff scandal. But McCain refused to follow the Abramoff trail to money laundering by nonprofits such as Grover Norquist's Americans for Tax Reform. That subject was referred to the Senate Finance Committee, to be duly buried. Since last spring, a newly docile McCain, looking to 2008, has consummated a well-publicized détente with the administration and its base in the religious right.
Collins, as chair of the Committee on Homeland Security and Governmental Affairs, held useful early hearings on the belated and incompetent response to Katrina. But Collins backed off when the administration refused to release embarrassing documents. A year later there have been no serious investigations of the ongoing scandal -- the $3.4 billion on the Federal Emergency Management Agency's (FEMA) no-bid contracts, the constant shifting of policies on everything from trailers to waste removal to flood insurance, and the failure to expedite rebuilding. Collins also turned down Democratic requests for hearings on Halliburton. Oklahoma Senator Tom Coburn has held some field hearings critical of fema and the Army Engineers. But these are not backed up by investigations and subpoenas. “If there's anything that might embarrass the White House,” says Leahy, “they just won't do it.”
The House displays even more abject collusion with the administration. In June 2005, at a hearing on reauthorization of USA Patriot Act, Judiciary Chairman Jim Sensenbrenner abruptly turned off the microphones and walked off with the gavel when committee Democrats raised questions about Guantanamo.
Occasionally, an experienced ranking Democrat such as Waxman, of the Government Reform Committee, or John Dingell, on the Energy and Commerce Committee, will shame his Republican chairman into holding an effective hearing or launching a joint investigation. An investigation initiated by Dingell's Democratic staff led to a bipartisan committee report on conflicts of interest at the National Institutes of Health, where a senior researcher named Trey Sunderland was paid more than $500,000 by Pfizer for tissue samples collected at $6 million of taxpayer expense. Despite requests by Democrats, the committee ignored oil pipeline safety until the recent BP disaster in Alaska.
Waxman's staff prepared a blistering report on FEMA lapses. Two days before a scheduled hearing, Waxman offered it to Chairman Tom Davis, who adopted it as the bipartisan committee report with minor changes. But the hearing itself lasted just one day, and Davis has resisted deeper digging. Democratic pressure did induce the committee to hold two days of hearings on government contracting. “We wanted to bring whistleblowers, but Chairman Davis refused to allow that,” Waxman says.
From 1997 to 2002, Republican committee chairmen issued more than 1,000 subpoenas, and no alleged sin was too trivial. Wielding subpoenas, the Republican House took 140 hours of testimony on whether Clinton had abused his Christmas card list for fund-raising purposes. By contrast, the House spent a total of 12 hours on Abu Ghraib, with one subpoena issued by Connecticut Congressman Chris Shays.
Since 2001, congressional subpoenas have been rare and mostly directed far from the White House. On March 18, 2005, Chairman Davis subpoenaed Michael Schiavo “to testify and produce things, including hydration and nutrition equipment related to the care of Theresa Schiavo.” Two weeks later, her death intervened.
The Republican House enthusiastically used subpoenas in made-for-TV spectacle hearings, such as the Major League Baseball steroids affair. In his ongoing harassment of the United Nations, Henry Hyde, chairman of the House International Relations Committee, subpoenaed documents from former staffers of Paul Volcker's inquiry into the United Nations's oil-for-food program in Iraq. Even The Wall Street Journal found this fishing-expedition excessive. “The Volcker Committee will be crippled if it cannot guarantee its witnesses -- many of them not beyond reproach -- that their confidential testimony won't end up being aired on C-SPAN as part of a Congressional hearing,” the Journal editorialized.
One rare exception is Shays, chairman of the Governmental Reform Subcommittee on national security. Shays, a moderate facing a tough re-election, has used or threatened subpoenas to get the Pentagon and the Federal Reserve to disclose information about scandalous lapses in Iraqi oil revenues and retaliation against whistle-blowers in the Abu Ghraib affair, among other hearings. If Shays loses his seat, ironically, it will be because of the overly close identification of the rest of the House GOP with the administration.
In the Senate, an island of bipartisan cooperation is the Permanent Subcommittee on Investigations, where Chairman Norm Coleman, has run joint investigations with ranking Democrat Carl Levin, most recently a probe into exotic forms of tax evasion.
What might Democrats do as the majority? a preview is found in the work of legislators like Waxman, John Dingell, and Senator Byron Dorgan who, despite lacking subpoena power or Republican cooperation, have used their limited powers to run extensive investigations.
Dorgan, who chairs the Democratic Policy Committee (DPC), runs a kind of oversight committee in exile. The committee, with just two staff investigators and no subpoena power, investigated contracting abuses in Iraq and in the Katrina region; pre-war intelligence failures; the Medicare drug program's “donut hole” of non-coverage; continuing homeland security vulnerabilities; covert propaganda by federal agencies to advance political agendas; and the failure to enforce environmental laws. One Dorgan hearing used whistle-blowers to expose how Halliburton, under contract to provide drinking water to troops in Iraq, often supplied contaminated water. In July, the dpc completed an exhaustive study of Halliburton abuses, drawing on whistle-blowers and public contracting records. The committee found that the Parsons Corporation received a no-bid contract to build 142 clinics in Iraq; it built 20.
Waxman's numerous staff investigations include a superb report on contracting abuses, titled “Dollars, not Sense,” on the explosion of contracting out basic functions of government and the proliferation of no-bid contracts. It exposes as a lie the administration's claim that the Office of the Secretary of Defense was not involved in Halliburton's sole-source contracts. Waxman documents 118 federal contracts worth $745.5 billion “found by government officials to include significant waste, fraud, abuse, or mismanagement, and reveals that fully 40 percent of all domestic discretionary spending is now contracted out.”
As diligent as these quasi-official investigations are, they cannot demand confidential evidence or compel testimony. Though they often dig much deeper than the cursory hearings by the Republican Congress' standing committees, they tend not to be taken as seriously by the press. And while these informal hearings have sometimes featured whistle-blowers willing to go public, they cannot protect confidential sources inside federal agencies. “If you're conducting a serious investigation,” explains another longtime House investigator, “you'll meet with the whistle-blower and plan strategy so that they're protected. Maybe you'll subpoena several other people and lots of other documents, so that your source is testifying under orders and is not revealed as the source. You can't do this when you're in the minority.”
In a Democratic Congress, three categories of investigation and oversight cry out for action:
I. How Is Government Being Run? Under this heading, leading candidates include:
• Domestic Security. The colossal waste, mismanagement, and failure to set the right priorities at the Department of Homeland Security.
• Privatizing Government. The costs, lack of accountability, outright fraud, and inappropriate use of contractors to carry out necessarily public functions.
• Sweetheart Deals. An immense amount of government social outlay now is designed primarily for the enrichment of private industry -- everything from the Medicare drug program to the student-loan program to low-income housing. A series of “waste, fraud and abuse” hearings on this broad topic could also make the case that government functions are often more efficiently run by government.
• The Taxman. The administration has shackled the IRS's ability to go after big tax cheats and now wants to hire private bill collectors, on commission, to go after small taxpayers. Hundreds of billions of dollars of taxes owed by the richest are uncollected every year because of deplorable administration and deliberately backwards priorities.
• Katrina. How has the rebuilding of New Orleans been so badly bungled?
• Faulty Intelligence. The serial failures of the 17 executive-branch intelligence agencies, including the failure to act on reforms proposed by the bipartisan 9-11 Commission. The Center for American Progress recently released a superb study, “No Mere Oversight,” on how Congress has dropped the ball, and what is needed.
• The Environmental Default. The EPA under Bush is a textbook case of putting industry people in charge of failing to enforce the law. Similar derelictions occur across the range of consumer and labor protections, including systematic failure to enforce the Wagner Act.
II. Private-Sector Abuses and Social Conditions. Corporate America has gotten a free ride from this administration. Congress should investigate:
• Continuing conflicts of interest on Wall Street.
• Systemic risks to the financial system, such as unregulated and highly speculative hedge funds and derivatives.
• The structure of drug-industry pricing, patent abuse, profiteering, conflicts of interest, and capture of academic research.
• How America's trade policy promotes outsourcing and encourages industry to work with foreign governments to export vital technology and depress domestic wages.
• The crisis in the health-care system.
• The looting of American workers' pensions.
• The sources of the growing income inequality in America.
• The shifting of economic risks from corporations and government to individuals and families.
• Abuses in consumer credit.
III. Administration Constitutional Excesses. Leaving impeachment aside, the administration's abuse of office demands investigation on multiple fronts:
• Illegal domestic spying and liberties during wartime. We need a full investigation comparable to Frank Church's to establish what kind of domestic spying Congress means to legalize, and with what constitutional safeguards.
• The extra-constitutional use of “signing statements” to contravene legislation.
• The silent coup by the Office of the Vice President.
• Politicization of civil service and of science policy. The administration has extended its ideological tentacles into the ordinary work of government -- everything from government statistical agencies to civil-rights enforcement and biomedical research.
• Misuse of intelligence to trump up the case for the Iraq War; the political takeover of intelligence by the secretary of defense.
• The failure to prevent 9-11 and the diversion of resources from Afghanistan and al-Qaeda to Iraq.
Dorgan and others have proposed a new Truman Committee to explore waste in defense contracting. Ted Kennedy wants hearings on abuses in the Sallie Mae program, which uses student loans as a cash cow for banks. “They should take the $4 to 6 billion every year in excess profits and pass it along to students,” he says.
Kennedy also wants hearings on the politicization of the civil-rights division of the Justice Department, where it took the Bush administration more than five years to bring a single voting discrimination suit on behalf of an African American, and where the Justice Department has colluded with Republicans to narrow the right to vote, with opinions upholding Georgia's notorious photo-ID requirement (later struck down in court) and Ken Blackwell's dubious vote-suppressing maneuvers. Instead of protecting the rights of Americans to be free from discrimination in voting, employment, and housing, the division's lawyers have mainly brought cases on issues dear to the religious right, notably sexual trafficking and litigation promoting state-supported religious observance.
Should the Democrats take back Congress, it will be by the slenderest of margins. With Bush having a veto pen, Democratic legislative accomplishment is improbable until at least 2008. Other than blocking really bad legislation, oversight will be the whole ballgame. But oversight can lay the groundwork for future legislation and reform -- and can change perceptions of the necessary role of government and its management.
The White House and its allies contend that Democrats are just hoping to pursue partisan payback. Some ranking Democrats, like John Conyers, who would chair the Judiciary Committee, have openly spoken of impeachment. Other leading Democrats, like Robert Reich writing in these pages, have urged the party to emphasize only a positive agenda looking forward. But our constitutional system is now so badly distorted that the right can't tell the difference between retaliation and restoration of normal, constitutional checks and balances. Says Waxman, using what was once a patented Republican phrase, “Most of it is about waste, fraud, and abuse.”