Why is Congress failing to keep watch?

By Charles Tiefer

ctiefer@ubalt.edu

(410) 837-4156

Q.  We are facing an appalling deficit and intense demands for government savings.  The Government Accountability Office routinely publishes reports regarding fraud, waste, abuse and mismanagement in areas of government.  Congressional committees with oversight jurisdiction could readily convene hearings and solicit testimony from the GAO and outside watchdogs. So why do the chairs of Congressional committees and subcommittees currently fail to conduct such oversight?

Q.  We are in a painful war in Iraq marked by highly dubious contractor performance, as illustrated by the Halliburton audits, and by various problematic government policies, from the prisoner abuse at Abu Ghraib to the sluggish pace of reconstruction.  Why do the chairs of the relevant Congressional committees and subcommittees currently fail to conduct oversight of the war effort?

Q. When the Bush Administration refuses to answer basic questions from the minority side – such as when then-Attorney General John Ashcroft refused to provide a single one of what became known as the “torture is legal” opinions, or when routine Halliburton audits are withheld from the House Committee on Government Reform – why do the chairs not employ the compulsory process they used readily in 1994-2000?

Q.  The single most important law passed in the first Bush term, the Medicare drug benefit and revision law of November 2003, has given off ominous signals.  Its supposedly under-$400 billion cost has gone up and up, bringing the system’s bankruptcy point years closer; seniors continue to be hostile and suspicious about the drug benefit; HMOs and drug companies seem to have emerged as the only big winners.  Why do the chairs of the relevant Congressional committees and subcommittees currently fail to conduct oversight?

Q. Considering that rising health care costs in the U.S. not only threaten Medicare and Medicaid but also private employment-based insured health care, why not conduct oversight broadly over the inefficiencies and excessive paperwork plaguing the whole insurance-centered health care system? 

Congressional oversight of fraud, waste, abuse, and mismanagement in government is a tradition that goes back to the Parliamentary and colonial roots of the Congress.  Many times in the nation’s history, the oversight role – what Woodrow Wilson (then a political science professor) called the “informing function” – of Congress was considered more important even than its legislating one.   After World War II, Congress permanently systematized and beefed up its machinery for oversight so that every standing committee has oversight jurisdiction in its area, the government operations committees have general oversight jurisdiction throughout the government, and the GAO has auditing groups looking at every agency and program.  Throughout the second half of the 20th century, Congressional oversight proved a powerful engine of reform, from the many inquiries into fraud and waste in defense contracting to the Watergate, Iran-contra, and Whitewater investigations that paralleled those by special prosecutors.

Currently, the GAO has a whole category of studies called its “high risk” series. These include lists of the departments and agencies at “high risk” for fraud, waste, abuse, and mismanagement, ranging from Homeland Security and the Department of Defense to the Postal Service and student loan insurance.  These reports get a brief moment of attention when released, but these days, there is no Congressional follow-up.   

There is a myth that oversight stops during wars.  To the contrary, the first great oversight investigation concerned a military fiasco in 1792 – a major Indian rout of the Army.  Past wars have included famous Congressional oversight hearings, from Senator Harry Truman’s during World War II and Senator William Fulbright’s during the Vietnam War – both of those being examples of Democratic-Congress-on-Democratic-Administration oversight – to the Iran-contra hearings in 1987 (in which I was special deputy chief counsel) during the contra war in Nicaragua and the hearings about the Haiti intervention in 1995. 

Another myth used to explain the lack of oversight is that there is a fabled tradition that oversight only exists to serve immediate, crass partisan goals.  To the contrary, the great oversight chairmen of the past, such as Senator Sam Nunn, did oversight regardless of who was president. In the late 1990s, for instance, Nunn led oversight hearings about President George H.W. Bush’s proposed war with Iraq. He held equally tough hearings in 1993 about President Clinton’s proposed change in the status of gays in the military.  The chairmen who led oversight hearings into excess costs in health care have tangled with the drug companies without attention to which party occupied the White House. 

Oversight is an institutional responsibility first and foremost, and politics is a secondary concern.

Charles Tiefer is a professor of law at the University of Baltimore School of Law and former solicitor and deputy general counsel of the U.S. House of Representatives. E-mail: ctiefer@ubalt.edu

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