Following the Watergate and other governance scandals of the Nixon Administration, Congress responded to the public lack of confidence in government integrity by passing a series of bills that established many of the oversight and accountability mechanisms on which our government relies today. Recognizing similar national sentiments now, House Democrats recently introduced the “Protecting our Democracy Act,” a substantial legislative package aimed at strengthening these tools and reasserting Congress’s role in conducting oversight. The post-Watergate reforms established a range of checks on government functions through independent and executive branch offices. Today’s proposals maintain these critical mechanisms while bringing Congress to the forefront of oversight discussions.
In the last four decades since the Watergate-era reforms were adopted, executive authority has expanded under administrations from both political parties, and such expansions have largely been upheld by the Supreme Court. For example, the Court has affirmed various degrees of executive privilege for communications between the President, Vice President, and their advisors as a matter of separation-of-powers. It has also limited congressional authority in key decisions such as INS v. Chadha, 462 U.S. 919 (1983), where it held that a one-chamber legislative veto was impermissible for violating the presentment and bicameralism requirements in the Constitution. While House Democrats propose these latest oversight reforms as a response to concerns about the current administration abusing its expansive role, their reassertion of congressional authority can also be viewed in the broader context of seeking to remedy an inter-branch imbalance of power that has swung toward the executive. Priorities in this legislation reaffirm Congress’s oversight capacity through its own functions, bolster independent oversight and accountability mechanisms, address election security concerns, and clarify limitations on presidential authority vis-à-vis the legal system.
House Democrats make enhancing Congress’s ability to conduct oversight central to their bill (H.R. 8363) by including provisions that would codify and expedite investigative techniques that are currently difficult to employ. They would also reinforce Congress’s essential role in the appropriations process. Such measures would enable Congress to better fulfill its core duties to gather information, legislate effectively, and spend federal funds. Heeding lessons from recent experience, such as being unable to subpoena former White House Counsel Don McGahn, the House would gain a cause of action to enforce subpoenas against government officials in court and expedite judicial review by having these cases heard by a panel of three judges, with any appeals made directly to the Supreme Court (Division B, Title IV § 403). This legislation would also address concerns over executive maneuvers to circumvent Congress’s integral role in making appropriations by amending the Impoundment Control Act (ICA). It would clarify in the ICA that the executive branch could no longer wait to initiate deferment and recission processes until so close to funds’ expiration that they could not otherwise be prudently obligated (Division B, Title V § 501). This legislation would also limit the executive’s ability to move funds between programs unilaterally by providing that most presidentially declared national emergencies without express congressional approval automatically expire after a given time (Division B, Title V § 531). Debates about separation of powers are nothing new, and history has seen different branches surge their authority at various times. Lawmakers from both parties have sought to reaffirm the importance of Congress’s duties for years, and the currently heightened focus on government oversight gives even more credence to their work. While we are currently living in an era where the executive has amassed substantial power and discretion while being treated with significant deference by the Court, Congress may well be able to seize upon the public lack of trust in government integrity and demand for accountability to emphasize its essential role as a check on the executive branch.