Investigating Oversight

This article appears in the May/June 2021 issue of The American Prospect magazine. Subscribe here.

In April, the House Select Subcommittee on the Coronavirus Crisis, formed to scrutinize policy decisions made during the pandemic, held a hearing that will not go down in the annals of congressional history. “When do Americans get their freedom back?” squawked pugnacious Rep. Jim Jordan (R-OH) at Dr. Anthony Fauci, seeking a certain date for an end to mask-wearing and social distancing. Told that it would depend on the level of cases, hospitalizations, and vaccinations, Jordan repeated the question, decrying measures that he considered an assault on constitutional rights. As his time expired, Jordan didn’t stop. The next speaker began, but Jordan talked over her. “You need to respect the chair, and shut your mouth,” bellowed Rep. Maxine Waters (D-CA).

Nobody would call it a useful five minutes of anyone’s life. But it’s what Americans have come to expect from hearings in their Congress, which have too often served as an extension of cable news shout-fests. Indeed, in an era where attention and attention alone matters, the angry exchange, unlike nearly all congressional hearings, drew news coverage.

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Grandstanding has its place in Washington, of course. But the deeper question is what the point of the hearing was at all. This is a select subcommittee with subpoena power, charged with gathering information on the federal pandemic response. Members had Fauci, Centers for Disease Control and Prevention director Rochelle Walensky, and Dr. David Kessler, chief science officer for the coronavirus response, in front of them. It was an opportunity to drill down into the technicalities of the vaccine rollout and virus mitigation, and decipher what could be improved.

But over the three-hour hearing, Democrats on the panel by and large praised President Biden’s response relative to Donald Trump, while Republicans mostly highlighted crowded immigration facilities that are failing to follow social-distancing guidelines. Several members gave five-minute speeches without asking a question. There were multiple exchanges about whether Tucker Carlson should retract statements made on his Fox News show.

In a sense, the hearing was unique, because at least the immigration facilities debate was based on one daylong trip by some Republicans to the southern border. Congress doing its own investigating on anything is novel these days. A combination of understaffing, stretched responsibilities, lack of coordination, and a pervasive inattention to the importance of oversight has crippled a core function of the legislative branch. Beyond that, few members have a coherent philosophy about the purpose of congressional hearings and oversight, so much so that when one of them offers a respectable response, it’s bracing.

“It’s an opportunity to educate the American people about what’s at stake in the policy choices we’re making,” said Rep. Katie Porter (D-CA), who has quickly gained a reputation through her oasis-in-a-desert appearances in hearings. “The average American doesn’t have hours to spend to educate themselves on these topics. They don’t have staff, we do. We should use our access as congressmembers to these people to lift up the concerns of Americans and invite them to participate more.”

Historically, this was precisely oversight’s role. At their best, congressional investigations and hearings formed the basis for some of our most critical laws, from the Pecora Commission on financial abuses in the 1930s to the Kefauver hearings on antitrust in the 1950s, and the Ribicoff hearings on GM and auto safety in the 1960s. Inquiries that unearth new information, or revelatory hearing moments that put witnesses on the spot, still happen today, but they’re rare. Congress has diminished its own understanding of the issues it legislates on, and dialed back its own curiosity. The result is objectively worse public policy.

The great investigative hearings of decades past used theater, as senators and congressmen dramatically confronted wrongdoers with their deeds. But the high drama was built on painstaking staff investigation. Today’s hearings, for the most part, are just the theater.

From the remaining members of Congress still engaged in thoughtful oversight, there’s much to learn. How do they thrive, while the overall framework of oversight languishes? Is it a matter of will, or structural factors? And as we move into a governing period, with Democrats eager to resolve long-standing problems, how can Congress use the oversight function to acquire the knowledge it needs to make government work for people?

I AM PRIVILEGED AMONG most journalists to have a colleague on staff with direct experience with congressional oversight. Robert Kuttner, who co-founded this magazine, was chief investigator on the Senate Banking Committee from 1975 to 1977, then chaired by Sen. William Proxmire (D-WI). The Capitol Hill job fell in between Kuttner’s tenures as a reporter, a good set of skills to bring to oversight.

Kuttner’s first big investigation was on redlining, the practice of restricting Black people and other minorities from access to mortgage credit. “I must have had 35 neighborhood groups from different cities who had done all of this investigative digging,” Kuttner told me. Armed with information on how entire neighborhoods were cut off from lending, Kuttner set up four days of intensive hearings, featuring community researchers, greedy bankers, and hapless regulators. The effort led to passage of the Home Mortgage Disclosure Act, which required banks to give detailed information about their lending activities, and later to the Community Reinvestment Act, which affirmatively mandated lending in low-income communities and sanctioned banks for failure to serve them. All of this provided grist for more community monitoring of bankers. It was, in Kuttner’s words, “regulation as an organizing tool.”

Next was a probe that would result in the Foreign Corrupt Practices Act, prohibiting U.S. companies from bribing foreign officials. This built off of a Securities and Exchange Commission investigation into hundreds of companies that admitted over $300 million in illegal payments. The committee focused on the Lockheed loan scandal. Defense contractor Lockheed had received $250 million in government loan guarantees to help avoid default, but the company never disclosed millions in payments to officials in West Germany, Italy, Japan, the Netherlands, and Saudi Arabia to secure military aircraft contracts. “We brought out some new stuff, and had Lockheed executives testify,” Kuttner recalled. “We were trying to build a case for legislation.”

There was a pattern to this work: identifying an abuse, highlighting it in public hearings, devising the remedy, and getting that through Congress. The most successful triangulated between oversight staff, public-interest groups committed to the issue, and media figures willing to report on it. One journalistic giant in the 1960s and ’70s was Morton Mintz, a Washington Post investigative reporter. Mintz, now 99, confirmed for me that oversight committee staff would call him to ask when he would be available to cover hearings. His subsequent write-ups would then get amplified by pressure groups and Congress, creating a positive-feedback loop.

Mintz broke the story in February 1966 that General Motors had sent a private detective to tail Ralph Nader, then involved in his own congressional investigation. Nader’s 1965 book Unsafe at Any Speed detailed the hazards of GM’s Corvair, using case files from over 100 different private lawsuits. Sen. Abe Ribicoff (D-CT) had hired Nader as an unpaid consultant for a Senate Government Operations Subcommittee investigation on traffic safety, and later had him testify. After Mintz’s story ran, Ribicoff hauled in GM CEO James Roche, who admitted that the company hired the private detective. Eventually, Nader won a $425,000 lawsuit against GM for invasion of privacy; he used the money to establish a series of organizations that fueled even more congressional hearings.

The Nader/GM kerfuffle was part of a yearlong Ribicoff investigation. “The principal challenge then was corporate lobbyists, there were very few institutional challenges,” Nader told me. “When we’d go to generally sympathetic chairs and subcommittee chairs, they never asked the lobbyists for permission.” Just ten months elapsed between the publication of Unsafe at Any Speed and the passage of the National Traffic and Motor Vehicle Safety Act, which has been credited with reducing auto fatalities by 80 percent and saving 3.5 million lives. But it was the hearings that turned the book into a best-seller; advocacy couldn’t do it alone, without oversight.

This persistence carried throughout Congress, veterans of the era say. Sidney Wolfe, who helped found Public Citizen with Nader in 1971, pointed out to me that just one Senate small-business subcommittee helmed by Sen. Gaylord Nelson (D-WI) held 135 days of hearings on the Food and Drug Administration and the pharmaceutical industry over the course of a decade, to say nothing of five to ten other members regularly holding hearings elsewhere. Even committees not primarily associated with oversight tried their hand at it, because it was a given that Congress had a responsibility to stay informed and convey that information to the public.

KUTTNER DESCRIBES HIS time as a golden age of congressional oversight, but that’s hard to judge. The broad era of congressional investigation, from the 1930s into the 1990s, did not just oversee the executive branch; many epic hearings targeted corporate power.

Ferdinand Pecora, like Kuttner a Senate Banking Committee staffer, directed an investigation into the 1929 stock market crash that unearthed an orgy of self-dealing and conflicts of interest, and led to both the resignation of bank CEOs and an entire suite of regulatory reforms that kept the industry safe for 50 years. Around the same time, Rep. Wright Patman (D-TX) held investigations into longtime Republican Treasury Secretary Andrew Mellon steering government benefits to companies he still controlled. Mellon resigned before being impeached. Patman would continue his hard-charging probes into financial malfeasance for four more decades.

“My favorite story of Patman, the Federal Reserve wouldn’t give him information,” said Matt Stoller, who wrote extensively about Patman in his 2019 book Goliath. “The Fed said, ‘We’re not part of the government, we don’t have to give you information.’ Patman said, ‘Oh, you’re not part of the government,’ so he went to the D.C. government and said that these Fed buildings aren’t part of the government, and they haven’t paid property taxes.”

The Temporary National Economic Committee from 1938 to 1941 delved into the concentration of economic power, and informed Thurman Arnold’s revival of trustbusting at the Justice Department. These investigations into corporate concentration were replicated by Rep. Emanuel Celler (D-NY) and Sen. Estes Kefauver (D-TN) throughout the 1950s.

At their best, congressional investigations and hearings formed the basis for some of our most critical laws.

Nearly a half-century later, Rep. Henry Waxman (D-CA) staged a dramatic set piece in an April 1994 hearing, putting seven CEOs under oath and asking them pointedly if nicotine was addictive, which they all roundly denied. Waxman went on to prove that these statements were false, showing that cigarette companies buried research about addictiveness and the cancer-causing properties of tobacco. Subsequent investigations, including when Waxman moved to the minority, created press attention and built momentum. The $246 billion Master Settlement Agreement with tobacco companies, and the 2009 Family Smoking Prevention and Tobacco Control Act, which Waxman co-authored, ensued. But more than that, the oversight itself coincided with reductions in cigarette use. “It was oversight, rather than legislation, that made the greatest impact on our nation’s relationship to tobacco,” Waxman wrote in his memoir.

Like Waxman, Sen. Gerald Nye, a former newspaper editor and North Dakota Republican, became effective from the minority party. He somehow managed to get himself made chair of a majority-Democratic select committee investigating America’s entry into World War I. The Senate Munitions inquiry became a dissection of war profiteering that really outlined the military-industrial complex, decades before Eisenhower’s famed address. Nye cultivated press coverage throughout the committee’s work, even giving a speaking tour and a national radio address. He had a dramatic flair as well: Nye would pile documents on hearing room tables to give the impression of massive evidence that military contractors pushed the country into war.

During World War II, a young senator and former haberdasher continued Nye’s work. “Harry Truman took it upon himself to do World War II military contractor oversight and became president as a result,” said Jeff Hauser of the Revolving Door Project, a key organization analyzing congressional oversight. The Senate Homeland Security and Governmental Affairs Committee’s Permanent Subcommittee on Investigations (PSI) grew out of the Truman Committee’s probe.

In a different national-security context, Sen. Frank Church (D-ID) spent 1975 investigating intelligence community abuses, unearthing covert operations to kill adversarial world leaders and overthrow foreign governments, surveillance on activists through COINTELPRO, and much more. The Church Committee’s final report filled six books. It led to the creation of a permanent Select Committee on Intelligence to oversee the CIA and NSA, and an executive order banning political assassinations.

From 2007 to 2014, Sen. Carl Levin (D-MI) chaired PSI, coinciding with the financial crisis and its aftermath. Despite there being a parallel Financial Crisis Inquiry Commission, Levin and his chief counsel Elise Bean delivered a two-year, four-part investigation highlighting risky lending at Washington Mutual, abominable nonregulation at the now-shuttered Office of Thrift Supervision, failures at the credit rating agencies to properly rate toxic securities, and definitive evidence that investment banks like Goldman Sachs bet against their own clients in structuring mortgage-backed securities deals. This was just a piece of Levin’s work on financial malfeasance, which included Swiss bank tax evasion, rampant commodity speculation, and an incredible report detailing HSBC’s record of facilitating money laundering for rogue regimes and Mexican drug cartels. The last was so powerful that the company’s head of compliance resigned at the hearing. (Bean noted to me that he didn’t resign from the actual bank, only that position.)

Levin’s work encapsulated the best of the attributes of the oversight that came before him. It featured years of work on a single subject; Levin would only hold a handful of hearings a year. It was an open-ended fact-finding mission; Levin’s staff would take three months to investigate, three months to interview witnesses, and three months to write a report. It was, remarkably for the time period, fully bipartisan, with Republican staffers in on the report formation from day one. “Levin’s preference was to find the facts before the hearing and present them,” Bean told me. “He was an outlier in the time and effort put into preparation. He knew the documents and facts as well as everybody.”

Like his predecessors, Levin would assiduously court media. His reports would land with a press conference, and then a separate session where staff would detail the report with press for a couple of hours. The hearings themselves stressed the drama, featuring a witness table full of leading financial executives, almost never experts or analysts. Levin, glasses perched precariously over his nose, would hammer witnesses with document after document. The Goldman Sachs hearing, which lasted 11 hours, was memorable for Levin referencing an email referring to a “shitty deal” the bank foisted on a client at least six times.

Finally, like the best oversight, Levin sought to actually fix the problems identified. “We were able to do something about everything we covered,” Bean said, highlighting Levin’s contributions to Dodd-Frank (even though he wasn’t even on the Banking Committee). This was all done in a partisan era without much cooperation or legislative thrust. Levin entirely subverted this through dogged oversight.

Though some used different techniques, these lawmakers were all dedicated to understanding problems in society, and spending as long as necessary to seek the truth. They generated original information that could inform public policy. While there is no specific constitutional mandate for oversight, it was throughout history seen as intimately connected to everything else Congress does, from legislation to appropriations to serving as a check on the other branches of government. As James Landis wrote in 1926, “To deny Congress power to acquaint itself with facts is equivalent to requiring it to prescribe remedies in darkness.”

Which, of course, is just what Republican revolutionaries taking power in 1994 wanted.

IN DISCUSSING OVERSIGHT with over 20 members of Congress, current and former staffers, and congressional experts, many pointed to the rise of Newt Gingrich as House Speaker as a turning point. Committee chairs previously had much more autonomy to direct their own committees, but after Gingrich, they had to ask permission to hold a hearing. Budgets for committees and staffs were slashed, as were external organizations that assisted Congress with investigations and reports, like the Government Accountability Office and the Congressional Research Service. The Office of Technology Assessment, which provided scientific and technical analysis to Congress, was abolished entirely.

“The Congress disarmed themselves,” as Nader put it. Gingrich shrank the House’s presence in Washington, stuffing most work between Tuesdays and Thursdays. That cannibalized 40 percent of a committee’s workweek that might otherwise be put toward oversight. A conservative movement that questioned the utility of government set about to destroy government from within, so they could point to that destruction as proof of their claims.

Daniel Schuman of Demand Progress, one of the closest watchers of the legislative branch, supplied me the numbers. House committees receive $100 million less in funding than they did ten years ago, and Senate committees are down $60 to $70 million. Personal member offices have had the same allotment of 18 staff members since 1978. “The population of the districts have doubled, and those are the people who have to do constituency work,” Schuman said. “Policy work gets squeezed, and given to junior people because we don’t pay them well.”

But while it’s easy to blame Gingrich for these changes, Democrats have won back the House twice since his revolution, from 2007 to 2010 and then since the 2018 midterms, and haven’t really reversed much. Committee chairs remain disempowered and subordinate to leadership. Outside of specialized oversight committees, investigation has waned. Subpoenas, the most powerful tool in a committee’s toolbox, are rarely brandished. Staffs have simply too heavy a workload and not enough warm bodies to focus on more than one issue at a time. Meanwhile, few legislative aides are paid enough to make a career of it in a high-cost city like Washington, and therefore move in and out of government, stunting the institutional memory of Congress.

A weak committee structure ultimately centralizes power within leadership, which they’re reluctant to give back. Leadership staff has increased as committee staff has decreased. And although oversight could pay political benefits, particularly for frontline members—look at how Katie Porter built her name and made her swing district impregnable as a result—it’s seen as orthogonal to governing, instead of fundamental to it. “Entities like Big Pharma, parts of the government like military contracting, there are things you can watchdog over that would provide positive attention,” said Hauser. “But [Speaker] Pelosi seems to view oversight as creating more risk than upside.”

As a rueful example, Pelosi announced last December the creation of a new select committee on “Economic Disparity and Fairness in Growth,” modeled on the Temporary National Economic Committee and designed to unearth facts about economic inequality in America. I’d tell you more about it, but the announcement of the committee is all that’s been done as of May; no committee members have even been named.

One option for thin legislative and committee staff is to just chase the 24-hour news cycle, convening hearings rapidly based on media reports or outside investigations. Having a hearing one week on a development from the week before might seem like Congress being responsive, but they have little actual utility. “There’s not enough time to get behind the story, to check the accuracy of it,” said Elise Bean, former chief counsel on the Senate Permanent Subcommittee on Investigations.

This interacts with the fact that the life of a member of Congress leaves little time to focus on oversight. Between floor votes, constant fundraising, meetings with interest groups, and (due to the compressed schedule) multiple committee hearings and markups happening simultaneously, preparation is incredibly challenging. There’s no capacity to learn issues at a high enough level to ask follow-ups and challenge a witness’s premises. “This is the default mode of Congress, don’t do your homework and see what happens,” said one House aide. Many may wonder why witnesses read opening statements at hearings, when they are usually posted online the night before. It’s because members never have a chance to read them and therefore need to hear them live.

Staffers who can concentrate on the particular issue at hand would be a viable resource, but most committee rules prohibit staff from directly questioning witnesses in hearings. A more unwritten rule, one staffer told me, is that executive branch officials cannot share hearing panels with anyone else. So you cannot have a victim of deregulation sitting next to the regulator who approved it.

House committees receive $100 million less in funding than they did ten years ago, and Senate committees are down $60 to $70 million.

As a result, we are often subjected to underdeveloped hearing topics and the familiar five-minute-per-side format, which creates multiple problems. First, five minutes isn’t always enough time to draw out information; what’s derided as “grandstanding” can be a function of the format, which favors quick gotcha questions over a slower-developing argument. Lawmakers constantly shuttling in and out of the hearing room makes it hard for them to build on an argument; few hearings indicate any coordination between members. Second, the massive committee size means members usually don’t get a follow-up opportunity; the same basic question can be asked numerous times by unwitting members who sit down and read off a sheet, without awareness of what’s come before. “We make it impossible for members to be good,” said Schuman.

Plus, in the current polarized era, switching between Democrats and Republicans often gives the sense of two separate, simultaneous hearings in two separate realities. Even in the recent past, hearings would have a consistent tone and message regardless of party. Today, each side has their own preoccupations, and hearings can feel more like ping-pong matches.

The results can be grim. You can sort hearing questions into a few familiar buckets. One is where the lawmaker takes the five minutes as an opportunity to give a speech, with the witnesses left to silently nod. Another involves the member saying some version of “Wouldn’t you agree that my legislation on this subject would solve the problem entirely?” And a third just reroutes the hearing into whatever preoccupation that member holds as their brand.

Even when there are good investigations, such as when Sen. Rob Portman’s (R-OH) Permanent Subcommittee on Investigations detailed how thieves use works of art to launder money and evade sanctions in 2019, he didn’t even hold a hearing, ensuring that nobody would hear about the report.

In place of oversight, you often get the dreaded congressional letter, asking executive branch agencies for a specific policy change. Aside from attempting to solve the finances of the Postal Service by themselves by being the only people in America left sending letters, it’s as relatively hapless as it is revealing. “The members’ addiction to sending letters is emblematic of how offices view their role: Instead of asserting control over a problem, a letter is a way of throwing your hands up in the air and exclaiming, ‘Won’t somebody else please solve this?’” said a senior House aide. “Oversight impotence has been here so long no one knows they have real power.”

In other words, for all the correct claims about overworked and understaffed members under the thumb of leadership, the bigger problem could be the members themselves. Since the 1970s, Congress has become cozier with corporate interests and more willing to abdicate authority to the executive branch, as long as it absolves them of responsibility. Those members with the energy and will to make real change from the hearing room serve as an implicit commentary on colleagues who appear to favor the trappings of power over the wielding of it.

THIS LONG INVESTIGATIVE drought may at last be changing for the better. Some of the most interesting work being done on oversight comes from the House Oversight Subcommittee on Economic and Consumer Policy, chaired by Rep. Raja Krishnamoorthi (D-IL), who rediscovered an element of creativity, born of necessity.

In the Trump years, oversight became more and more equated with a rather single-minded approach best depicted visually as a helmeted man running repeatedly into a brick wall. Congress would ask for documents or testimony, and the Trump White House wouldn’t comply; they held up at least nine key investigations this way, according to an accounting by The Washington Post. “We’re still fighting for Don McGahn as a witness, that case continues,” notes Rep. Jamie Raskin (D-MD), referring to the former White House counsel. (McGahn and the House Judiciary Committee just reached agreement on testimony on May 12, two years after the initial request.) Trump unlocked the insight that refusing to hand over information or witnesses would hem in oversight, without any political hit other than a few people lamenting the breakdown of process.

But Krishnamoorthi figured out that if the executive branch obstructed investigations, you could go to companies that were beneficiaries of quid pro quo relationships and get the same documentary information. He did this in 2020 with Philips Respironics, a company contracted with the government to build low-cost ventilators before the pandemic. Despite receiving taxpayer funds to develop the low-cost products, Philips instead took the technology and sold ventilators on the private market at a sixfold markup. The Trump administration, led by Jared Kushner, then renegotiated the deal to buy the ventilators at an exorbitant price. Krishnamoorthi’s inquiry led to Trump canceling the contract. Going through corporate entities rather than a cooperative executive branch is “definitely harder,” Krishnamoorthi told me. “It’s not easy to locate where the right person is. But it’s incredibly fruitful if you pursue that path.”

In the Biden transition, Krishnamoorthi has kept focus on fraudulent corners of the economy and regulatory inattention. After 2019 reports about high levels of metals in baby food, the subcommittee demanded internal documents and test information from seven manufacturers. The results from four companies that complied confirmed the presence of toxic metals like lead, arsenic, cadmium, and mercury. Every metal tested for was found. Industry was allowed to set its own standards for threshold levels of these metals, and even those standards are routinely ignored, the report showed.

Krishnamoorthi and some colleagues introduced legislation in February requiring the FDA to lower its acceptable levels of metal in baby food. Before a hearing could be held, the agency announced to the baby food industry in March that it would regulate toxic metals, and then in April followed up with a specific timeline, beginning as soon as next year. “The FDA moved with warp speed by FDA standards,” Krishnamoorthi said. “I have concerns about it but it’s real progress.”

This has led to a niche in the subcommittee of speaking for the voiceless, with hearings and investigations on predatory advertising at YouTube Kids, defective pet collars killing thousands of dogs and cats, and nonprofit organ procurement companies that fail to perform their job and gouge the government. This bipartisan probe with Rep. Mike Cloud (R-TX) has already led to the Biden administration adopting new rules for the industry, and Congress learned that top executives attempted to obstruct the investigation. “They said, ‘Raja is going away,’” said Krishnamoorthi. “I can tell you I’m not.”

The prerequisite for good oversight is curiosity, a desire to get to the bottom of how things work.

One of the members of Krishnamoorthi’s subcommittee is a second-term congresswoman from Orange County named Katie Porter, who took out her by-now-familiar whiteboard to explain how a CEO of an organ procurement company used the company jet for vacation when it could have been used to pick up organs and ferry them to recipients. It was a common technique for Porter, who has mastered challenging corporate CEOs and regulatory officials. This is someone whose vanity license plate reads “OVRSITE.”

“Hearings are a dialogue, not a place for speechifying,” Porter told me. “It’s also not a place for softballs.” Her questioning of JPMorgan Chase CEO Jamie Dimon (a parallel to Pecora and Nye questioning the actual J.P. Morgan) about how bank tellers making the company’s meager starting salary wind up $567 short per month broke through the Washington noise. “The biggest thing,” Porter said, “was hearing from people who said, ‘I hate politics but that’s my story.’ That’s a fundamental part of how I think about the job.”

There’s a pedagogical nature to Porter’s style, working within the five-minute format and trying to get at just one essential truth, and present it to the broader public as a stand-in for the larger issue. When she revealed through questioning that Postmaster General Louis DeJoy didn’t really know the price of postage, it was an attempt to teach something about what DeJoy values in his position. Porter has also succeeded in making policy from the hearing room. She got former Centers for Disease Control and Prevention director Robert Redfield to personally commit to making COVID testing free, which came entirely from her finding the statute giving CDC the authority to do that.

It’s telling that Porter’s use of a whiteboard was seen as highly controversial among older members, as if trying to break down complex subjects for the public is a bridge too far. The tension led to Porter’s departure from the Financial Services Committee, where she had much of her career expertise before Congress. The whole episode gave the impression that it’s risky and unconventional to actually conduct oversight and ask questions. “They think she’s good because she’s good at theater,” said Matt Stoller, who worked for former Rep. Alan Grayson (D-FL) and Sen. Bernie Sanders (I-VT) in Congress. “But she’s actually good because she’s interested in the details.”

Porter’s professor at Harvard Law preceded her in commanding a hearing room. Not surprisingly, Sen. Elizabeth Warren (D-MA) takes the same approach to oversight, drilling down to a moment that puts powerful people on the spot. “Back when I was a baby senator in the Banking Committee,” she told me, “we had all the financial regulators in front of us. They moved in extra tables to fit them. These are the people who are entrusted with enforcing current law. They are theoretically responsible for going after the big institutions that break the law. The question I asked, ‘When is the last time you took someone to court?’ Dead silence!”

Warren’s philosophy is to use the hearing format to balance the scales, to give voice to people who usually get no purchase in Washington, whether customers cheated by Wells Fargo’s fake-account scandal (Warren’s performances in hearings got not one but two Wells Fargo CEOs to step down) or victims forgotten by federal regulators who give a stronger ear to corporate lobbyists. Entreaties to regulators in particular to carry out their actual mission can have a dual purpose. Yes, beating up on them can have a cathartic quality, showing the public that accountability can actually flow from Congress. But it can also send a message inside regulatory agencies that they cannot relax enforcement any longer. The spectacle of the hearing room can help regulators regain control of a bureaucracy that may be misaligned with the party in power.

Virtually alone among politicians, Warren has taken on her own party. In the Obama years, she routinely opposed top officials for key posts like Larry Summers and Antonio Weiss. Just recently, she prodded Treasury Secretary Janet Yellen, whom she recommended for the role, over her desire to exempt large asset managers from more persistent regulation. Warren was apoplectic in late April when SEC chair Gary Gensler, an ally whom she had heavily pushed for the job, hired as his enforcement director a conflicted Wall Street lawyer who resigned in disgrace after less than a week on the job. She confronted both Gensler and the White House.

This willingness to be confrontational, whether against Republicans or Democrats or CEOs, is a lost art, Warren says. “Think about how hard it seems to be to get a member of Congress to stand up and say, ‘This company did something that’s wrong, they cheated the American people and there should be real consequences.’ I’m always surprised that my directness surprises other people. When we see something that’s wrong, why wouldn’t we be willing to call it out?”

Warren now has something that likely terrifies Wall Street and regulatory agencies alike: a gavel. She chairs the Senate Banking Subcommittee on Economic Policy and the Senate Finance Subcommittee on Fiscal Responsibility and Economic Growth. Her first Banking subcommittee hearing was on student loans, again picking a diffuse group without a megaphone. She highlighted the esoteric topic of student loan servicers, companies that often steer debtors into overpriced options for dealing with monthly payments, making obvious that the system itself is busted as a prerequisite to drive change. An invite to billionaire Leon Cooperman for a Finance subcommittee hearing on taxing the wealthy was turned down; some people are wise enough to avoid being a punching bag.

To get around the short-staffing problem, Warren has devoted a considerable portion of her personal office to investigation, including bringing in Henry Waxman’s top investigator, Brian Cohen. At first she could only guarantee him a team of a couple people, but it’s been built out with investigative responsibilities among virtually the entire staff. Even with a small core, Warren has become known for pursuing investigations that illuminate hidden corners of the economy. “The question should be,” she said, “why aren’t 100 senators doing that?”

THE MOST IMPORTANT investigation of the past several years put together all of these oversight tactics. Rep. David Cicilline (D-RI) led the House Antitrust Subcommittee in a 16-month investigation of the dominant tech platforms (Amazon, Apple, Facebook, and Google), producing a damning 450-page report recently adopted by the full Judiciary Committee. The investigation created and sustained bipartisan momentum, albeit slowly, for substantive legislation to reduce Big Tech’s power.

“It wasn’t creating a record simply to justify legislation that was already planned,” said Rob Weissman, president of Public Citizen. “It was a genuine investigative process.”

The process started with a determined lawmaker and a free hand. From the beginning, Cicilline framed it as a top-to-bottom review of how digital markets work, associating directly with the antitrust investigations Emanuel Celler led. He hired Lina Khan, a noted scholar whom President Biden later nominated to a seat on the Federal Trade Commission, as his key investigator. Khan looked directly to Carl Levin’s subcommittee report on the financial crisis as a model; Elise Bean was consulted on concepts for undertaking the inquiry. And like those investigations, Republican staff was brought in from the beginning, with both sides working together to draft requests for information, conduct depositions, and brief lawmakers.

Entreaties to regulators in hearings can send a message inside regulatory agencies that they cannot relax enforcement any longer.

Negotiations with the tech firms to receive information were protracted. The subcommittee had to go up to the full committee level to obtain subpoenas, which were never issued, as the firms eventually gave up over one million documents. The investigative process was kept under wraps to avoid leaks. Briefings with members and agency experts used a slide deck that staff beamed from their computer screens, with no hard copies. Members couldn’t take the information home. Officials from companies affected by Big Tech dominance would drop in on the briefings to provide context. And in addition to document review and private interviews, Cicilline used hearings as fact-finding events, including getting out into the field.

One field hearing in Colorado was significant. Members and staff were briefed by state attorney general Phil Weiser before the hearing, then heard from four small businesses about their struggles competing with tech platforms, and visited a local incubator afterward to learn more. The usual ability for tech lobbyists to get to members wasn’t available in Colorado. The event was a turning point for Rep. Ken Buck (R-CO), who changed his let-the-market-sort-it-out views after hearing from real people in his home state.

After much back-and-forth, the Big Tech CEOs voluntarily testified, in a hearing that was initially delayed because of the death of John Lewis. Members held a mock hearing, with prominent tech critic Sally Hubbard standing in for one of the CEOs. Questions were planned out in advance, with an eye toward really challenging the firms. “It wasn’t ‘Why do you do this,’ it was ‘You do this, here’s how you do this, here’s why it’s bad,’” said one House aide involved in the investigation. Armed with a year of investigative information, including never-before-seen internal communications showing anti-competitive practices, subcommittee staff got the members to buy in and not freelance, but to coordinate questions. Holding the mock hearing also stirred competitive juices among members to ask good questions and master the material.

“What I think made it extraordinarily successful is [Cicilline] had a postulate for what was going wrong in the high-tech economy,” said Rep. Raskin, who served on the subcommittee. “So many hearings are gotcha moments about showing an embarrassing fact and it’s over. There was an implicit systematic critique.”

The hearing, given the high-profile subject and the presence of a tech press, generated a lot of attention. Unlike other attempts at grilling tech CEOs, where lawmakers had clear difficulty with the subject of digital markets, subcommittee members showed both a command of the evidence and a willingness to play off their counterparts. That helped because the five-minute format was still in place; Judiciary Committee ranking member Jim Jordan (R-OH) wouldn’t agree to extend the time to 15 minutes. Nevertheless, members of both parties challenged the CEOs, yielding key admissions about cannibalizing rivals’ profits and silencing their voices. This informed the later report, which used the tech industry as a microcosm of the growing concentration across the economy, and developed ways of fixing it.

It was a satisfying demonstration of how congressional determination can overcome internal and external obstacles. Cicilline managed to get the investigation into his subcommittee rather than the committee level, reducing the number of cooks who’d have to deal with it. He gave the time and space needed to stumble through a million documents to find the one that revealed Big Tech misconduct. He had cross-party buy-in and a set piece that drove attention.

You would think that a successful investigation and the media spotlight it drew would spur other members of Congress to seek to replicate that with their own oversight. It hasn’t happened yet. It’s true that there is something about the richest people in the world that will generate a bit more attention than some other policy failure. But the cultural antipathy within Congress to actually learning about the world and informing policy continues.

THERE’S A BUDDING SYSTEM of supports for encouraging better oversight. The Levin Center at Wayne State University, established after Carl Levin’s retirement, provides online tutorials for how to develop an investigative plan, design a document request, interview witnesses, manage whistleblowers, and structure hearings. The short videos really provide oversight in a box, and a live version, known as the “oversight boot camp,” covers the same subjects in an intensive two-day session run with the Lugar Center and the Project On Government Oversight’s Congressional Oversight Initiative. Over 265 congressional staff have taken the classes over the past five years. “We create a fake scandal, and take them through the process,” Elise Bean said. “They have to write a report. Title, three findings, three recommendations. That’s the first day. Then they write a hearing plan. And a follow-up plan, what will you do the next two years.”

Other outside groups, like the American Economic Liberties Project, have produced memos on how to effectively use oversight, stressing identifying manageable problems and developing an investigative record. The memo even supplied sample requests for information to demonstrate how to extract findings from corporations. Some of the suggested areas of inquiry, like the role of private equity firms in the health care industry, have already led to hearings.

Inside Congress, Jamie Raskin has held boot camps for members, a series of lunchtime discussions about strategies and methods for questioning. Katie Porter took the class, after her bombshell questioning of Jamie Dimon. “People said, ‘What are you doing here?’ I said, ‘This is hard! I want to learn more.’”

Daniel Schuman proposed a number of structural changes, like opening up the hearing format to larger blocks of time for each side or letting staff ask questions. More coordination between members to hit certain points in a hearing might improve things, as would more resources for staff and dedicated oversight staffers paid out of committee budgets. During the pandemic, scheduling changes have been favorable to oversight. “The process the House is doing, there are no votes, it’s a committee week, that’s great,” Schuman said. “All you have to do is committee work, and you can be anyplace.”

The Congressional Progressive Caucus has tested a strategy of holding oversight hearings as a caucus. They got lucky when David Williams, a former member of the Postal Service Board of Governors, came to the caucus and said he wanted to speak publicly about Louis DeJoy’s efforts to degrade the agency. The caucus structured a hearing, working with Williams on how to present his information. With the pandemic locking up committee activity, the small caucus staff had time to put together the virtual hearing, amplifying it through progressive organizations and media. “We were out of session, nothing else was happening,” said CPC executive director Mike Darner. “Let’s show that Congress can function.”

The result was a riveting hearing of Williams detailing the Trump administration’s involvement in forcing changes at the Postal Service. And it displayed a theatricality that is part of the oversight process, especially in a fast-paced news environment. Communicating with the mass public requires giving them something fresh or interesting. Ultimately, it’s a tool of politics, regardless of the high-minded talk about dispassionate fact-finding.

A younger class of members has shown a deeper commitment to oversight. “Committee hearings are one of the few venues that we have to hold people in power and corporations accountable and get information for the American people,” said freshman Rep. Mondaire Jones (D-NY).

Jones, who picked up a seat on the House Antitrust Subcommittee, shares a vision of oversight as an essential part of a legislator’s work, not an appendage. This must become more widespread. You cannot solve America’s challenges without fully understanding what those challenges comprise. The prerequisite for good oversight is curiosity, a desire to get to the bottom of how things work. If you have that, institutional resistance and structural austerity can be overcome.

Another freshman, Sen. Jon Ossoff, has taken the chair of the Permanent Subcommittee on Investigations. He’s easing into the role; there’s been no public statement from the subcommittee since last December. But he does have the right profile: Ossoff was an investigative journalist before reaching the Senate. “Good hearings are really just journalism with subpoena power,” Matt Stoller said. “It’s a show, it’s a performance where you find information and confront people. It’s not rocket science but it does take work.”