Centralizing Congressional Oversight

From: SSRN | Journal of Law and Politics, Vol. XXXII, No. 261

Virginia Public Law and Legal Theory Research Paper No. 2018-05

Matthew Brooker

Kirkland & Ellis – Washington, D.C. Office

Michael A. Livermore

University of Virginia School of Law


The shared presidential and congressional responsibility to oversee administrative agencies creates an opportunity for productive public consideration of administrative policy making. It also creates a forum for hostile grandstanding that can, when taken to an extreme, gridlock the federal government. During periods of divided government, when party differences enhance inter-branch tension, there is greater risk that the constitutional system of shared powers will be thwarted by partisan incentives to compete rather than cooperate.Indeed, the later years of the Obama administration serve as a kind of case study in the consequences of dysfunctional party relations for agency oversight.

Less well appreciated, however, is the inverse risk—that dysfunctional oversight institutions can undermine political parties. In particular, agency oversight is a highly decentralized form of congressional action, with individual members of Congress given a fair degree of leeway to pursue pet oversight projects. This decentralization drives power to relatively more activist constituencies in ways that can reduce the ability of parties to pursue mainstream, compromise-oriented agendas with broad majoritarian appeal.

Although current congressional oversight practices may reinforce centrifugal forces within contemporary political parties, legislative leaders that recognize this threat have reform opportunities that can reduce or even reverse this tendency. At least in theory, congressional oversight provides an excellent opportunity for a non-incumbent political party (i.e., the party not in power in the White House) to critique the administration’s regulatory policies and offer an alternative vision to voters. This role, which is similar in kind to the one played by opposition parties in parliamentary systems, can add vigor and democratic accountability to the administrative state and, at the same time, enhance the governance capacity and electoral appeal of the non-incumbent party.

At least since Jimmy Carter, the risks to presidents and their parties from a lack of coordinated presidential oversight have been clear. After a disastrous early experiment with a decentralized approach to executive oversight, the Carter administration attempted to change tack toward greater exertions of White House authority. But substantial damage had already been done, and Carter was unable to fully implement these lessons before voters denied him a second term. Ronald Reagan and subsequent presidents have not repeated this mistake, and there has been an increasing tendency for the White House to take on a greater role in overseeing the activities of agencies under the President’s control. Most paradigmatic has been the vesting of regulatory oversight authority in the Office of Information and Regulatory Affairs (OIRA) in the White House, a practice that has continued under presidents of both political parties since 1981. The presidency of Donald J. Trump, which has proven unusual in many respects, appears headed toward a departure from this general trend. At the very least effective supervision of the executive branch by the White House has been lacking. The risk faced by the Trump administration is a repeat of the Carter experience of intra-branch infighting that leads to an incoherent, and ultimately unpopular, policy agenda.

Congress has no similar oversight bureaucracy, and as a consequence, its review tends to be both less substantive and more scattershot. Oversight is conducted through the system of committees and sub-committees and individual members have some powers that they can exercise purely at their own prerogative, such as the ability of Senators to put an anonymous “hold” on a presidential nominee. Some oversight activities, such as hearings, are carried out in public, providing an almost irresistible urge to grandstand. Furthermore, as has been noted by political scientists for some time, individual members of Congress typically lack systematic incentives to invest in oversight. As a consequence, there is a tendency for the most ideologically-oriented and activist members to be drawn to oversight, while more moderate members focus on traditional constituent-oriented activities.

This short essay will argue that it is time for Congress to consider a more centralized approach to regulatory oversight. Given the inherently partisan nature of inter-branch relations, this centralized process could be intentionally designed to facilitate constructive rivalry between the parties without undermining the operating effectiveness of the federal bureaucracy. By increasing the capacity of Congress to engage in substantively sophisticated review, centralized oversight institutions could also help the legislature reestablish itself as a competent actor with the ability to serve as a legitimate check on executive policy making.

The argument will proceed in three parts. First we will argue that, perhaps despite appearances, there is value in congressional regulatory oversight. When done rigorously, congressional oversight can improve regulatory decision making, increase the democratic accountability of administrative agencies, and help protect against an over-concentration of power in the White House. Oversight activities can also contribute to what political scientists refer to as “responsible party government” by offering a forum for constructive party rivalry. Competition between the parties has a variety of democratic benefits, and the overlapping responsibility to oversee administrative agencies provides a host of potential opportunities for beneficial contestation.

Second, we will argue that congressional oversight has not lived up to this promise, and in its current form verges on dysfunction. For executive review, OIRA plays an essential role as a coordinating clearinghouse and central repository of expertise, and—at least for prior administrations—it has been clear that the President is the ultimate arbiter of intra-executive conflict. Congressional oversight, in contrast, is highly decentralized, leading to several important disadvantages. Individual members, and even reasonably well staffed congressional committees, lack the technocratic competence to engage in oversight at a sufficiently high degree of substantive sophistication. Diffusion also creates a serious “multiple principals” problem within Congress in which agencies are pointed in so many directions that almost any decision both accords with and is antagonistic to congressional signals.In addition, decentralization of oversight authority augments centrifugal tendencies within contemporary political parties, making it difficult for moderating forces to fend off challenges from the ideological wings, contributing to instability and making productive intra- and inter-party compromise difficult.

Finally, we discuss the political prospects for more centralized congressional review. Because congressional oversight can take many forms, there are many potential avenues for reform. The time may be ripe for a renewed attempt to create a congressional agency, modeled on OIRA, that is charged with facilitating congressional review activity. This new bureaucracy could substantially increase the technocratic sophistication of congressional review. A prior effort in 2000 to house such a role in the Government Accountability Office (GAO) failed, but the political stars may be aligned for another try. We also discuss the potential for congressional leadership to grasp more firmly the reins of control over the oversight activities of individual members, sub-committees, and committees. Greater leadership involvement in coordinating oversight has the potential to add coherence and moderation to these activities, ultimately resulting in benefits for the parties as well as improved governance.

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