At a fundamental level, congressional oversight is an expression of the American people’s collaborative effort to govern themselves. Expressions of popular sovereignty are usually evaluated through the lens of legislation, i.e. where Congress directs the government (the executive branch) to take action. However, it is equally important to analyze whether the undertaken governmental actions are what Congress intended and the American people want.
There are many metrics to evaluate executive branch activities, including whether the government is accurately carrying out its instructions, whether it’s doing so in a way that is faithful to what Congress intended, whether it is acting expeditiously, and whether the outcomes are achieving the desired ends. At Sunlight, we have a particular interest in government transparency, and this blogpost outlines some methods Congress can employ to make the executive branch more transparent, as well as how the fruits of Congressional oversight efforts can be made more readily available to the American people.
Executive Branch Oversight
In the following section, we have identified a number of steps Congress as an institution can undertake to make executive branch actions more transparent. We also look at the steps committees could undertake as part of their oversight role. (Individual member offices also play a role here, but that is a discussion for a different time.)
Congress receives many reports from the executive branch, some of which are required by law, others which are provided upon request or upon demand. Often times, the reports are not provided in a timely fashion, are incomplete, or are only sent to a small unit within Congress. To the extent possible, these reports should be aggregated and provided through a central repository to all interested members of Congress. Legislation to do that has been introduced in both chambers, under the title Access to Congressionally Mandated Reports Act.
Congress (or its constituent parts) often employ researches at legislative support agencies (like GAO, CBO, CRS) or in academia to assist with oversight of the executive branch. To the greatest extent possible, these reports should be aggregated and be provided through a central repository to all interested members of Congress. Legislation to aggregate and release Congressional Research Service reports has been introduced in the House this session.
Some executive branch processes, such as rulemakings, are not overseen by Congress in a systematic fashion. While there have been efforts in the past to bolster Congress’s oversight role here, most notably under the Congressional Review Act, Congress should consider creating a legislative support agency or expand the current responsibility within GAO to review and evaluate all agency rulemakings.
Congress is responsible for overseeing federal spending, but the information provided by the executive branch often is unreliable, insufficiently detailed, and diffuse. Congress should require the executive branch to use unified data standards to report all of its budget formulation and spending data. Legislation, entitled the DATA Act, has been introduced in the House and Senate for these purposes.
Congress should have a more effective system to see which special interests are trying to influence policy, who they’re lobbying, and the positions they’re taking. Congress should require all persons who lobby professionally to register as lobbyists, make sure that professional fixers (who give strategic lobbying advice) are covered, and better disclose who they’re meeting with and what they’re saying. Congress should also codify and expand disclosure rules around the super-regulators in OMB’s Office of Information and Regulatory Affairs. There’s currently legislation in the form of the Transparency in Government Act to close the lobbying loopholes, although there isn’t any current legislation on OIRA.
Congressional committees should create, maintain, and regularly review their agency oversight plans. At the end of each session, they should evaluate whether their oversight efforts were in accord with their oversight plans.
Congressional committees should consider retaining professional non-partisan staff that serve both the majority and the minority, and play the role of a repository of information about oversight efforts.
Congressional committees should have a clear understanding of the statutory and customary responsibilities of the agencies under their purview, and should regularly publish an updated compilation of the laws and regulations that govern the agencies. Included within this is a responsibility to review the laws under their jurisdiction, with a particular emphasis on transparency requirements.
Congressional staff should be regularly trained in the art of oversight as discussed in resources like When Congress Comes Calling: A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry. There should be a specific non-partisan office established within each chamber to provide expert assistance and guidance on oversight techniques, including how to use transparency as a means to improve accountability.
Congressional committees should receive an updated list of the reports required to be submitted to Congress by the agencies within their jurisdiction.
Congressional committees should have a means for receiving confidential and non-confidential communications from the public, including reports from whistleblowers, and for responding to those concerns in both public and non-public ways.
Oversight of Congressional Committees
When Congress keeps an eye on the executive branch, the oversight work is almost always performed by its various committees and subcommittees, and the information they gather is done so in trust for the American people. To the maximum extent possible, that information should be made available to the public so that we can be empowered to make crucial decisions about policy, including whether to keep or replace the elected officials who are acting as our agents.
These are many things Congressional committees can do to keep the public in the loop. To the maximum extent possible, they should:
Publish all documents from hearings, and do so as quickly as possible. Often times, committees don’t publish documents submitted for or created at hearings for months or years, if ever. In those circumstances, non-final documents should be released as they’re created, and then updated for a final official “committee print.” If there’s no committee print, the information should still be gathered and released all in one place.
Create oversight plans at the beginning of each year, publish the plans, and then later evaluate how well they’ve accomplished the goals set out in the plans.
Webcast all hearings. Unofficial transcripts should be released immediately upon creation.
Publish a list of all staff, including their titles and areas of responsibility. That will make it easier for whistleblowers, government officials, the public, and others to reach the appropriate staffers.
Follow our guidelines as to what belongs on a committee website.
Release documents subpoenaed from entities being overseen (to the extent possible), as well as release reports from agencies that are being overseen. This is regardless of whether the committee holds a hearing.
Publish analyses and reviews performed at their behest by legislative support agencies.
Release letters to and from the administration and agencies.
Shorten the time that committee records are sealed, especially records sent to the national archives.
Create a transparent means for people to request documents, records, or other committee-held information, including the adoption of the presumption that the information should be released.
Encourage the collaboration between equivalent bodies in the House and Senate.