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Regulatory: Congressional Oversight of the Obama Administration

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.

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