Regulatory: Congressional Oversight of the Obama Administration
How the Republican Congress might deliver on its promise of aggressive oversight.
November 23, 2010 at 07:00 PM
8 minute read
The original version of this story was published on Law.com
House Republicans have promised aggressive oversight of the Obama Administration's stewardship. Congressman Darrell Issa, future Chairman of the House Oversight and Government Reform Committee, told Politico that he wants to hold seven hearings a week for 40 weeks, or 280 hearings.
This won't happen, due to limitations on Committee resources and the extensive amount of work necessary to prepare a successful hearing. Nonetheless, Issa's statement suggests that Republicans will take a different approach from when they last took control of the House. In 1995-96, Speaker Gingrich largely ignored oversight of the Clinton Administration and chose instead high-level confrontation on tax and spending issues, with disastrous consequences. After the 1996 election, the House Republicans further squandered their opportunity by pursing impeachment of the President, rather than by reviewing how he actually managed the Executive Branch.
Issa's threat does, however, raise several important questions – what would a sustained oversight program actually involve? How would it be conducted? How would the Executive Branch respond? The experience of a Democratic House with the Reagan Administration provides useful guidance.
To conduct an effective oversight hearing, Congressional staff must spend months obtaining and then analyzing information from the agencies about their implementation of Administration policies, whether its actions comply with the law and what problems have been encountered. Multiple Committees submitted what became known as Dingellgrams – extensive demands to the agencies to produce documents drafted by Congressional staff fully versed in the abuses of discovery that are common in civil litigation. The scope of the demands, and the refusal by several Committees to recognize either the deliberative process or attorney-client privileges, ensured long delays and lengthy negotiations before Congress received responsive documents from the agencies and the staff could begin planning the themes, subpoenaing the witnesses and stage managing the theatrics of the hearing.
The principal burden of the Dingellgrams fell on the agencies. Responding to broad document demands could require thousands of hours from program and general counsel staff, diverting attention and resources from actual policy implementation. The document demands also intimidated agency officials and made them less responsive to Administration, as opposed to Congressional, priorities. Finally, the certainty that any further written communications would be subpoenaed changed how senior agency officials did business. Where possible, they stopped generating written documents and communicated by telephone or in person, which slowed the agency's response rate, but avoided future subpoenas. All these problems will be aggravated today because of the ubiquitous nature of email and blackberry communications, which will be subject to subpoena.
The White House experienced similar problems, but their impact was exacerbated by the small size of its staff and the disruption of the policy process resulting from the diversion of senior level attention. Statutory White House agencies, such as the Office of Management and Budget, constantly received Dingellgrams for budget and regulatory communications, as the House sought to determine what policy instructions the president had given agency officials. The White House itself was bombarded with requests for production of documents and live witness testimony, which required the White House Counsel to augment his staff to address the resulting flood of executive privilege problems. The senior staff also was forced to stop writing and conduct business in ways that left no fingerprints. A similar Congressional oversight campaign would force a device-dependent generation of White House officials to change the way they do business and degrade their ability to develop and implement policy.
John F. Cooney is a partner in the Washington, D.C., office of Venable.
Read John Cooney's previous column. Read John Cooney's next column.
House Republicans have promised aggressive oversight of the Obama Administration's stewardship. Congressman Darrell Issa, future Chairman of the House Oversight and Government Reform Committee, told Politico that he wants to hold seven hearings a week for 40 weeks, or 280 hearings.
This won't happen, due to limitations on Committee resources and the extensive amount of work necessary to prepare a successful hearing. Nonetheless, Issa's statement suggests that Republicans will take a different approach from when they last took control of the House. In 1995-96, Speaker Gingrich largely ignored oversight of the Clinton Administration and chose instead high-level confrontation on tax and spending issues, with disastrous consequences. After the 1996 election, the House Republicans further squandered their opportunity by pursing impeachment of the President, rather than by reviewing how he actually managed the Executive Branch.
Issa's threat does, however, raise several important questions – what would a sustained oversight program actually involve? How would it be conducted? How would the Executive Branch respond? The experience of a Democratic House with the Reagan Administration provides useful guidance.
To conduct an effective oversight hearing, Congressional staff must spend months obtaining and then analyzing information from the agencies about their implementation of Administration policies, whether its actions comply with the law and what problems have been encountered. Multiple Committees submitted what became known as Dingellgrams – extensive demands to the agencies to produce documents drafted by Congressional staff fully versed in the abuses of discovery that are common in civil litigation. The scope of the demands, and the refusal by several Committees to recognize either the deliberative process or attorney-client privileges, ensured long delays and lengthy negotiations before Congress received responsive documents from the agencies and the staff could begin planning the themes, subpoenaing the witnesses and stage managing the theatrics of the hearing.
The principal burden of the Dingellgrams fell on the agencies. Responding to broad document demands could require thousands of hours from program and general counsel staff, diverting attention and resources from actual policy implementation. The document demands also intimidated agency officials and made them less responsive to Administration, as opposed to Congressional, priorities. Finally, the certainty that any further written communications would be subpoenaed changed how senior agency officials did business. Where possible, they stopped generating written documents and communicated by telephone or in person, which slowed the agency's response rate, but avoided future subpoenas. All these problems will be aggravated today because of the ubiquitous nature of email and blackberry communications, which will be subject to subpoena.
The White House experienced similar problems, but their impact was exacerbated by the small size of its staff and the disruption of the policy process resulting from the diversion of senior level attention. Statutory White House agencies, such as the Office of Management and Budget, constantly received Dingellgrams for budget and regulatory communications, as the House sought to determine what policy instructions the president had given agency officials. The White House itself was bombarded with requests for production of documents and live witness testimony, which required the White House Counsel to augment his staff to address the resulting flood of executive privilege problems. The senior staff also was forced to stop writing and conduct business in ways that left no fingerprints. A similar Congressional oversight campaign would force a device-dependent generation of White House officials to change the way they do business and degrade their ability to develop and implement policy.
John F. Cooney is a partner in the Washington, D.C., office of
Read John Cooney's previous column. Read John Cooney's next column.
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllWhy Seemingly Simple Off-Channel Communication Rules Still Vex Finance Industry
5 minute readSEC Enforcement Chief Grewal—Whose Hard Line on Crypto Tormented the Industry—Stepping Down
4 minute readTrending Stories
Who Got The Work
Dechert partners Andrew J. Levander, Angela M. Liu and Neil A. Steiner have stepped in to defend Arbor Realty Trust and certain executives in a pending securities class action. The complaint, filed July 31 in New York Eastern District Court by Levi & Korsinsky, contends that the defendants concealed a 'toxic' mobile home portfolio, vastly overstated collateral in regards to the company's loans and failed to disclose an investigation of the company by the FBI. The case, assigned to U.S. District Judge Pamela K. Chen, is 1:24-cv-05347, Martin v. Arbor Realty Trust, Inc. et al.
Who Got The Work
Arthur G. Jakoby, Ryan Feeney and Maxim M.L. Nowak from Herrick Feinstein have stepped in to defend Charles Dilluvio and Seacor Capital in a pending securities lawsuit. The complaint, filed Sept. 30 in New York Southern District Court by the Securities and Exchange Commission, accuses the defendants of using consulting agreements, attorney opinion letters and other mechanisms to skirt regulations limiting stock sales by affiliate companies and allowing the defendants to unlawfully profit from sales of Enzolytics stock. The case, assigned to U.S. District Judge Andrew L. Carter Jr., is 1:24-cv-07362, Securities and Exchange Commission v. Zhabilov et al.
Who Got The Work
Clark Hill members Vincent Roskovensky and Kevin B. Watson have entered appearances for Architectural Steel and Associated Products in a pending environmental lawsuit. The complaint, filed Aug. 27 in Pennsylvania Eastern District Court by Brodsky & Smith on behalf of Hung Trinh, accuses the defendant of discharging polluted stormwater from its steel facility without a permit in violation of the Clean Water Act. The case, assigned to U.S. District Judge Gerald J. Pappert, is 2:24-cv-04490, Trinh v. Architectural Steel And Associated Products, Inc.
Who Got The Work
Michael R. Yellin of Cole Schotz has entered an appearance for S2 d/b/a the Shoe Surgeon, Dominic Chambrone a/k/a Dominic Ciambrone and other defendants in a pending trademark infringement lawsuit. The case, filed July 15 in New York Southern District Court by DLA Piper on behalf of Nike, seeks to enjoin Ciambrone and the other defendants in their attempts to build an 'entire multifaceted' retail empire through their unauthorized use of Nike’s trademark rights. The case, assigned to U.S. District Judge Naomi Reice Buchwald, is 1:24-cv-05307, Nike Inc. v. S2, Inc. et al.
Who Got The Work
Sullivan & Cromwell partner Adam S. Paris has entered an appearance for Orthofix Medical in a pending securities class action arising from a proposed acquisition of SeaSpine by Orthofix. The suit, filed Sept. 6 in California Southern District Court, by Girard Sharp and the Hall Firm, contends that the offering materials and related oral communications contained untrue statements of material fact. According to the complaint, the defendants made a series of misrepresentations about Orthofix’s disclosure controls and internal controls over financial reporting and ethical compliance. The case, assigned to U.S. District Judge Linda Lopez, is 3:24-cv-01593, O'Hara v. Orthofix Medical Inc. et al.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250