The topic of this episode is, “Why is congressional oversight important, and how can it be done well?”

To help us tackle this subject we have Elise Bean. She is the Director of the Washington Office of Wayne State University’s Levin Center. Elise spent 30 years in Congress working as an investigator for Sen. Carl Levin (D-MI) and for the Senate Permanent Subcommittee on Investigations. Elise handled investigations, hearings, and legislation on matters involving money laundering, offshore tax abuse, corruption, shell companies, and corporate misconduct. She is also the author of the book, Financial Exposure: Carl Levin's Senate Investigations into Finance and Tax Abuse (Palgrave Macmillan, 2018). So who better to have on the show to discuss the topic, “Why is congressional oversight important, and how can it be done well?” 

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.

Welcome to the program.

Elise Bean:

Thank you for inviting me, Kevin.

Kevin Kosar:

All right, let's begin with something very fundamental. What is Congressional oversight, and who in Congress can do it?

Elise Bean:

Well, Congressional oversight is when members of Congress, on a committee or individually, ask questions and try to find out: What are the facts? Is a program working? Is there really an abuse? If you want good government, you need good oversight because things change over time and what worked at one time doesn't work at another. That's what Congressional oversight is.

Kevin Kosar:

Yeah, we should dig into that a little bit. I think often Americans don't like to see politicians fighting amongst themselves, yet the legislative branch, last time I checked the Constitution, says that Congress makes the laws, Congress decides where the money is to be spent, but they're not the ones who actually do the execution of the law. They're not the ones actually spending the money. So does that seem to imply some sort of constitutional obligation to engage in oversight?

Elise Bean:

So the Supreme Court has said that that's exactly true, that if Congress can't do what it's supposed to do under the Constitution, unless it has some facts… I mean, wouldn't it make sense—if you're going to change your program or decide where money's going—that you have informed decision-making based on the facts? In fact, there's a 1946 law that requires all Congressional committees to do oversight within their areas of jurisdiction, and that's because they want you to find out what the facts are before you start to pass laws, give out money, and approve nominations.

Kevin Kosar:

Right. And as you hinted at earlier, when Congress says, "Hey, here's a new program we authorized and here's some new money for it, go out and do well, executive branch," sometimes the executive branch doesn't follow Congressional intent. Sometimes a program may not work as it was hoped. So Congressional oversight, we shouldn't just view it as kind of a response to some bad thing reported in the newspaper where Congress has to react, right? Rather, it sounds like it's something that they should be kind of engaged in as a matter of course.

Elise Bean:

Well, there are two kinds of oversight. One is what you were just talking about, routine oversight, where you look at the laws within your jurisdiction, see how they're working—and God knows a lot of times they don't work well—and what can you do to improve them. Other times there's a scandal, there's an earthquake, there's a hurricane, and Congress reacts to that scandal or to that event, tries to find out what's happening, and—maybe—how Congress can help.

Kevin Kosar:

Yeah, I mean, it seems inherent to the concept of representative and responsible government that you've got to have that oversight component there. Otherwise, you get money spent on things that don’t work, and the tap will never be turned off and taxpayers will be aggravated, to say nothing of scandals not being addressed and bad behavior being punished—or at least curbed so it doesn't repeat.

Now, some listeners of this podcast, when they hear the words Congressional oversight, they might flinch, in part because there's a tendency amongst the media to show oversight happening in the form of a hearing with a member of the dais whose face is getting red and they're getting all worked up—it's a political conflict, often a left and right conflict. That stuff happens, but that is certainly not the whole of Congressional oversight. There's bad oversight. There's good oversight. What does good oversight site look like?

Elise Bean:

Well, to me it's when there's a good-faith effort from both parties to try to find the facts. It's a complicated world out there and getting consensus on the facts is sometimes really hard. But when you do it, it creates a foundation for change. And when you think about it, Congressional oversight is all about affecting change. We want to improve laws. We want to address abuses. It's about fixing problems. But Congress isn't the executive branch. They can't prosecute anyone. They can't throw them in jail or fine them. It's all about policy changes. And we're talking about policy changes, good oversight—to me—involves people who have really fundamentally different worldviews. That way, they challenge each other. They look at the facts differently. They look at more facts, and the end result is something that is more thoughtful, more thorough, and certainly more credible if you have both parties involved.

Kevin Kosar:

Yeah, and that brings up the question of oversight and what it looks like. Again, it's forgivable that folks might think, oh, oversight, it's hearings. It's the guys on the dais asking the questions, the witnesses at the table, and that's oversight. But that's just part of a much bigger process. What does that overall process look like? What are the steps of that process?

Elise Bean:

You're absolutely right, Kevin. The hearing is sort of at the end of the process. When you start it, it's first fact-finding. What happened? Get documents, do interviews, maybe go visit some sites, visit victims, and find out what happened to them. That's the fact-finding phase. The second phase is you write it up because if you don't write it up, nobody knows what you ever found out. So that's often a report or a memo or a letter writing up what you found. Then you have the hearing. If it's important enough, you have a public hearing. But then there's a fourth stage which is as important or more important than the rest, which is doing something about the problems that you uncovered. So it's a very long process, four stages. That can take a year. It can even take two years.

Kevin Kosar:

Yeah. Going back to the beginning of the oversight process, how do you pick what to oversee? When I think of Congressional committees and the sheer breadth of their jurisdiction, they often have multiple agencies, and every agency has tons of programs and et cetera, et cetera. Where to begin? How do you choose amongst all these competing priorities for oversight? How do committees do that?

Elise Bean:

Well, that's the most important issue of all because you can't do a lot in a year. I mean, the most you could do is maybe once a month, and then you don't have any time to really investigate. The really best investigations, you usually do two or three a year. And to pick those, what usually happens is the staff makes some suggestions to the chairman of the committee or to the ranking member of the committee, and they decide out of that selection what they're going to do. So you think about, what promises has that member of Congress made to their constituents? What are some of the biggest problems in the subject area they have? Has there been a scandal or has there been some event that really needs to be addressed? And you have to just make some pretty hard choices about what your priorities are.

Kevin Kosar:

I can see that. It would have to be a negotiation amongst a number of competing goods with different criteria thrown into the mix. You mentioned the first stage of once you pick something, getting the facts. And you can do that through interviews and requests for documents. How easy is that, whether it's reaching out to the executive branch or the private sector? In your experience, how responsive do they tend to be when you say, "We want these documents from this file or this person, or we're insisting these guys come over and talk to us, not in a hearing, but just talk to us as staff." How tough is that?

Elise Bean:

It's not easy. I'll just tell you that. It's a very difficult process because you're investigating peop