The Supreme Court decision in Trump v. Mazars, ongoing review of The House Committee on The Judiciary v. McGahn in the DC Circuit Court, and the House Foreign Affairs Committee launch of contempt proceedings against Secretary of State Pompeo all make clear that Congress depends on information from the executive branch to conduct its constitutionally grounded oversight role. Doubts have been raised as to whether Congress can depend on obtaining needed information in a timely manner. Other oversight mechanisms, including appropriations and authorization processes, could provide leverage for resolving inter-branch clashes. But these methods are arguably complicated by the global Covid-19 pandemic and are already predictably behind schedule.
The Office of the Director of National Intelligence’s (ODNI’s) decision to no longer provide in-person briefings on foreign election interference threats highlights the problem of congressional oversight based almost entirely on information gathering. On August 29, 2020, Director of National Intelligence (DNI) John Ratcliffe sent a letter to leadership in the Senate and House, Intelligence Committees (SSCI and HPSCI), and Defense Appropriations Subcommittees (SACD and HACD) notifying them that ODNI will switch from having in-person briefings on election security threats to instead sending Members “written finished intelligence products.” DNI Ratcliffe stated that these updates will continue to satisfy ODNI’s obligation to keep Congress “fully and currently informed of intelligence activities” under § 502 of the National Security Act of 1947 (50 U.S.C. § 413a). Lawmakers and analysts have questioned this assertion. Ratcliffe’s letter was met with concern from intelligence leaders in both chambers, including SSCI Acting Chair Rubio (R-FL), Ranking Member Warner (D-VA), and Speaker Pelosi (D-CA), HACD Chair Visclosky (D-IN), and HPSCI Chair Schiff (D-CA) in a joint letter.
Among the pushback from the Hill was a letter from Democratic House Members urging their Leadership to “consider all remedies available to enforce regular intelligence briefings” before the November elections. The Representatives recommended including language in legislation authorizing and appropriating funds to ODNI that would compel it to resume “regular briefings on election security for Congress,” and even proposed potentially withholding funds from ODNI entirely if it does not comply. These options, as well as others, may be contemplated given the statement in Speaker Pelosi’s letter that if ODNI fails to resume previously scheduled in-person briefings, the House would consider “the full range of tools available to compel compliance.”
Article I § 9 cl. 7 and § 8 cl. 1 of the U.S. Constitution grant Congress the power to raise revenue and expend federal funds, and this constitutional authority has been affirmed by the Supreme Court. Congress has for a long time relied on its authorization and appropriation authority to conduct oversight of the executive. Through these processes, Members and their staff gain information by holding hearings and briefings with officials, writing letters and requesting updates on programs, and having staff-level conversations. However, Congress has been unable to complete its annual appropriations process on time since 1997 and authorizations frequently lapse, making opportunities for congressional oversight often dwindle by the end of the fiscal year when Congress has to pass full or partial continuing resolutions (CRs) to keep the government running.
This year is likely to follow precedent given recent reports that Speaker Pelosi and Treasury Secretary Mnuchin have reached an informal agreement to have a “clean” CR without partisan riders to continue current levels of government spending after September 30. A “clean” CR may not then give Congress the chance to use the ODNI appropriations process to require the resumption of traditional, in-person intelligence briefings ‑‑ illustrating the challenges that arise when balancing oversight responsibilities with the imperative of avoiding a government shutdown. Congress can still apply its oversight tools in discussions on the next COVID-19 supplemental package and the FY 2021 Intelligence Authorization Act, though timing for congressional action on these items is less certain. When the need for information is, as in this case, immediate, routine congressional oversight mechanisms can still prove effective, but they are harder to exercise when spending discussions become urgent at the end of the fiscal year, especially in the midst of a pandemic.