Congress faces recurring institutional challenges that hinder its capacity to conduct effective oversight investigations. Prominent among these issues are staff turnover and subsequent “wip[e] out” of oversight expertise that occurs when experienced staffers depart.[1] This essay argues that identifying best oversight practices would alleviate this trend’s impact by cultivating an internal knowledge base. However, researching best practices depends on reliably identifying the most effective congressional investigations. Measures of effective congressional oversight would assist in this regard, but scholarship in this area is nascent. Successfully fostering oversight capacity through best practices requires mature, trustworthy measurement. Simply put, best practices need best measures.
Part I describes the relationship between sufficient capacity and effective congressional oversight, as well as the origins of Congress’s capacity problem. Part II discusses the potential benefits of best practices research on capacity and how effectiveness measures enable this approach. Part III assesses current scholarship on potentially viable measures of effective congressional oversight.
- Declining Capacity
The power of the United States Congress to conduct oversight activities is fundamental to its capacity to govern responsibly and competently. Derived from Congress’s enumerated powers listed in Article III of the U.S. Constitution, the oversight power is inherent to its ability to legislate, hold the executive branch accountable, and inform the public on critical issues.[2] Congress gathers facts and evidence about the problem at hand when it exercises its oversight authority.[3] This information helps Members of Congress assess and propose existing laws, examine the actions of federal agencies, and keep the public aware of the doings of the executive branch.[4] When done effectively, congressional oversight ensures that proposed reforms have factual bases, federal agencies act effectively and efficiently, and the federal government remains responsive to Americans’ changing needs and conditions. The oversight power encourages transparency and accountability, which are critical to sustaining the integrity of our democracy. Effectively using the oversight power, therefore, is vital to Congress’s work.
Congress’s capacity, referring to the organizational resources, knowledge, expertise, time, space, and technology needed for Congress to accomplish its constitutional role, affects its ability to conduct effective oversight. [5] Without sufficient capacity, a thorough investigation becomes nearly impossible.[6] However, legislators, scholars, and the general public have thoroughly observed an overall decline in congressional capacity and rising dysfunction.[7]Scholars posit that a significant contributor to Congress’ diminished capabilities is simple institutional overwhelm.[8]The breadth of its oversight responsibility easily surpasses the available resources to conduct investigations,[9] which compromises the ability of legislators to access the information they need for lawmaking, checking the executive, and informing the public.[10] Without reforms or interventions intended to foster capacity, the future of effective congressional oversight is uncertain.
The expansion of the larger federal establishment explains much of the growth in the breadth and complexity of Congress’ oversight responsibility.[11] Since the Constitutional Convention, the federal government’s functions and duties have grown considerably, as enhanced prerogatives became necessary to react effectively to various military, economic, and social challenges.[12] For example, new issues like food safety consistently arose that required governmental action.[13] The responding legislation to these problems contributed to federal expansion to such an extent that congressional delegations of administrative rulemaking powers to executive agencies became necessary to accommodate implementing legislation of this scale and complexity.[14] Finally, the issue of crosscutting, which involves overlap in the policy implementation conducted by multiple agencies and jurisdictions, has made distinguishing governmental actions from other entities increasingly difficult, adding yet another layer of complexity and breadth to Congress’ oversight responsibility.[15]
The operative scale of the executive branch compared to the legislative branch further contributes to Congress’ diminished oversight capacity. Due to the federal government’s increased role throughout American history in response to the challenge of implementing the legislation described above,[16] the size of the executive branch has grown immensely since 1789.[17] This expansion resulted in an executive branch whose size and operative scale dramatically outstrips the legislative branch.[18] More than four million civilian and military employees presently staff the executive branch’s 180 agencies.[19] An annual budget of nearly four trillion dollars supports its ability to implement vast, legislatively-created programs, for which these agencies issue thousands of substantive rules each year.[20] In contrast, the legislative branch has around 30,000 employees, an annual budget of $45 billion, three support agencies, and passes a relative handful of new laws yearly.[21]
Given the essential role of congressional staff in obtaining the information needed to engage in meaningful oversight, the high rate of staff turnover in committees and offices additionally strains Congress’ oversight capacity. That Congress largely carries out its oversight work through committees makes the issue of staff retention especially critical.[22] Staffers trained and experienced in oversight are vital to a committee’s investigation—they support the ability of committees to obtain and process consequential information on the investigation’s subjects. However, Congress has experienced retention problems with its staffers for years, which the COVID-19 pandemic exacerbated. Typically motivated by low pay, long hours, and an ever-growing workload, their departure contributes to a committee’s “brain-drain” due to the committee losing some of its accumulated policy expertise and investigatory skills. The high staff turnover rate further means that committees cannot easily replace this lost knowledge, which over time “wipes out” institutional knowledge of oversight practices and diminishes the likelihood of the investigation obtaining accurate, thorough, and trustworthy facts.[23]
Put another way, staff turnover means that members of Congress may rely on inexperienced staff to support their oversight activities. While inexperienced staff members may strengthen their investigatory skills over their tenure, the lack of Congress-wide standards and norms for oversight activities impedes the ability of inexperienced staff to learn oversight practices efficiently and effectively. The resulting variation in oversight standards adds a layer of confusion, fragmentation, and disagreement among committees, Members, and staff conducting an investigation that inexperienced staffers must navigate to obtain and process information. Confusion, generally, is not conducive to quick comprehension or strong proficiency, and inexperienced staff may unintentionally hinder an investigation’s fact-finding through their unfamiliarity with navigating this thicket of standards and norms.
Sufficient congressional capacity enables effective oversight. However, the growth of Congress’ oversight ability, expansion of the executive branch, and low staff retention have dramatically reduced Congress’s oversight capacity. Despite these challenges, the oversight power’s vital role in supporting Congress’s ability to make laws and uphold our constitutional scheme means that effective oversight must find a way to continue.
- Best Practices
Aside from proposals to expand raise staff pay, building an accessible inventory of best oversight practices may support congressional capacity to perform effective oversight. The available expertise in such an inventory would help Congress retain the skills and knowledge needed to conduct quality oversight efforts in the context of high staff turnover. Committees’ oversight resources would rely less on the personal competencies of experienced investigatory staff and more on an internal knowledge base. An inventory may also facilitate more valuable training for inexperienced staff. Training based on best practices would offer standardized methods for practicing the “art” of oversight, rather than simply teaching suggested actions to resolve potential issues or the laws underscoring oversight powers.[24] Standardization, in turn, may clarify the many ways to approach investigation and grow the competency of staffers preparing for their first investigation.
Finally, an inventory would support the independence of an oversight inquiry through strengthening inexperienced staffers’ understanding of the “art” of oversight. By doing so, an inventory might relieve the pressure that these staffers experience through the ongoing demand to learn these practices on the go,[25] and foster a mindset more conducive to learning the often-complex issues that tend to underly inquiries. Growing policy expertise through oversight expertise, thus, may reduce the need for inexperienced staff to seek information on the inquiry’s substantive issues from third parties, who might influence staffers’ grasp of these issue by presenting key information through the lens of their own interests.[26]
Studying records of past inquiries and investigations would prove helpful in this regard. Published hearing transcripts and investigative reports, for example, may help identify the different strategies, tactics, and methods that the committee used during the proceeding.[27] This tracking and documentation of possible strategies used to conduct oversight and their outcomes is key to fostering the necessary data from which analysts can empirically identify best practices. Further, examining prior inquiries provides a means to assess the causal link between a committee’s chosen method and achievement of its oversight objectives, a crucial element of best practice research design, [28] by providing insight on factors that influence causality. The level of cooperation between the investigators and a subject agency, for example, may impact whether the investigators receive material information to their oversight objectives from the agency.
Since effective inquiries presumably used high-quality methods and strategies to achieve their oversight objectives, the first step to building a best practice inventory involves consistently recognizing effective investigations. However, the subjectivity involved in determining the effectiveness of an inquiry makes relying on an exact meaning of effective congressional oversight for this step difficult. One commentator suggested that inquiries effectively use the oversight power by fulfilling their overall legislative or public policy objectives.[29] Still, determining the extent to which an inquiry achieved said objectives may vary from person to person.
- Measuring Effective Congressional Oversight
Relying on the attributes, features, or characteristics of an oversight inquiry that help the inquiry achieve its oversight objectives mitigates the risk of bias in finding high-quality oversight activities.[30] Measures of effective congressional oversight would determine the degree to which these attributes are present in a particular investigation.
Former Senator Carl Levin and veteran congressional investigator Elise Bean, recognizing the connection between consistently recognizing effective investigations to identifying best practices, suggested four possible measures of effective congressional oversight in 2018.[31] The first criterion—quality—concentrates on the inquiry’s nature, assessing the issue’s importance to the public, the appropriateness of the investigative tools used, and the relevancy of the information obtained.[32] Levin and Bean associated this measure with ten possible indicators for assessing the level of factual inquiry and the level of consensus around the uncovered information.[33]
Bipartisanship is the second criterion.[34] Considering the extent to which members of Congress with different views work together during the investigation, Levin and Bean assign ten potential indicators for measuring cooperation between investigators from both parties.[35]
Credibility, the third criterion, gauges how third parties viewed the investigation.[36] Nine possible indicators measure the investigation’s credibility, focusing on public confidence and the types of third parties interested in the investigative findings.[37]
The last criterion focuses on the inquiry’s policy impacts, i.e., the extent to which the investigation led to policy or procedure changes.[38] Levin and Bean suggest five indicators to evaluate the extent of policy reform.[39]
Aside from these “Levin-Bean factors,” the universe of potentially viable measures of oversight effectiveness is limited. The dearth of scholarship in this area strongly indicates no consensus on the best measures of effective oversight yet exists. Developing consensus confirms that a set of metrics received thorough examination, are reliable, and, perhaps most importantly, verify that the metrics comprehensively gauge what it purports to measure. Thus, ensuring that best practices analysts can consistently and objectively identify effective oversight inquiries is critical to achieving this goal.
Levin and Bean are the leading authority on measures of effective congressional oversight, but their research is a “starting point” rather than best measures.[40] They emphasize the need for further analysis in several areas: (1) the suggested indicators’ merits and drawbacks, (2) the extent to which the criteria encourage public confidence in Congress, (3) the degree to which the criteria encourage quality investigations, and (4) the measures’ theoretical and practical foundations.[41] While the Levin-Bean factors need additional development to reach a best measures standard, the factors capture core investigation and oversight principles like the extent to which Members are able to follow-up on recommendations and strive for timeliness. Evaluating the sufficiency with which these factors describe effective oversight, for example, would bring them much closer to attaining that status. While research has progressed towards a definition of congressional oversight, ways to gauge a committee’s level of oversight activity, and overall legislative effectiveness, measurement research into indicators of effective oversight inquiries and investigations has stalled following Levin and Bean.
In conclusion, Congress’ oversight authority serves a vital purpose in performing its constitutional role and supporting responsible and competent governance. However, the decline in congressional capacity compromises its ability to conduct effective oversight, undermining the strength of its functioning and public confidence in the People’s Branch. Developing an inventory of best oversight practices may appreciably cultivate the investigative capabilities of legislative staff, growing congressional capacity. Well-developed measures of effective congressional oversight are crucial to identifying best practices, but existing measures of effectiveness require further research to ensure their utility.
[1] Mort Rosenberg, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry 9 (2017).
[2] Christopher Davis et al., Cong. Rsch. Serv., RL30240, Congressional Oversight Manual 2–3 (2021).
[3] Sen. Carl Levin & Elise Bean, Defining Congressional Oversight and Measuring Its Effectiveness, 64 Wayne L. Rev. 1, 1–2 (2018).
[4] Id. at 1–2; Davis et al., supra note 2, at 2–3.
[5] Timothy Lapira et al., Overwhelmed: An Introduction to Congress’s Capacity Problem in Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform 7 (Timothy Lapira et al., eds., 2020).
[6] Id.
[7] Id.
[8] Id.
[9] Rosenberg, supra note 1, at 7–8.
[10] Id. at 9.
[11] Rosenberg, supra note 1, at 7; Walter Oleszek, Cong. Rsch. Serv., R41079, Congressional Oversight: An Overview 2 (2010).
[12] Oleszek, supra note 11, at 2–3.
[13] Id. at 3.
[14] Id.
[15] Id.
[16] Id. at 2–3.
[17] Id. at 2; Rosenberg, supra note 1, at 7–8.
[18] Rosenberg, supra note 1, at 8.
[19] Id.
[20] Id.
[21] Id.
[22] Oleszek, supra note 11, at 4.
[23] Rosenberg, supra note 1, at 9.
[24] Davis et al., supra note 2, at 2.
[25] Rosenberg, supra note 1, at 9.
[26] Id.
[27] Id.
[28] Stuart Bretschneider et al., “Best Practices’’ Research: A Methodological Guide for the Perplexed, 15 J. Pub. Admin. 307, 309 (2005).
[29] Michael Stern, Henry Waxman and the Tobacco Industry: A Case Study in Congressional Oversight in When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry 313 (2017).
[30] See Molly Reynolds, The Decline in Congressional Capacity in Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform 47 (Timothy Lapira et al., eds., 2020) (using set of correlates to measure institutional capacity due to similar risk of subjective measurement).
[31] Levin & Bean, supra note 3, at 18.
[32] Id.
[33] Id. at 19.
[34] Id.
[35] Id. at 20.
[36] Id. at 21.
[37] Id.
[38] Id.
[39] Id.
[40] Levin & Bean, supra note 3, at 22.
[41] Id. at 18.