An Inevitable Byproduct of Divided Government: Oversight and Investigations

Published November 5th, 2010 by David Marin

marinTuesday’s midterm election results are sure to mean a renewed and reinvigorated emphasis on congressional oversight, particularly in the GOP-led House. Speaker-elect John Boehner (R-OH) has already sent word to would-be committee chairs that all committees are to have oversight as a key component of their agendas; and Rep. Darrell Issa (R-CA), the shoo-in candidate to chair the Committee on Oversight and Government Reform, has been laying the groundwork for a robust investigative slate since President Obama’s election two years ago.

In a companion piece in this newsletter, my colleague Sally Katzen lays out how and why, over the next two years, much of the real action will not be in Congress but in the bowels of the federal bureaucracy. The administration will attempt to advance its agenda on health care reform, financial reform and energy via regulation, trying to put points on the board and position the president for 2012 outside the traffic jam that is Congress. But the chances for major legislation will be slim.

Oversight and investigations can and will fill that vacuum.

Understanding this reality is critically important to literally all businesses and industries. Planning for the possible glare of the congressional spotlight needs to begin now – not after the first request for documents or subpoena arrives. And planning means understanding the full range of political, substantive, tactical and public relations challenges that comes with a congressional investigation.

For most observers and even members of Congress and staff, congressional oversight refers to the review and supervision of federal agencies, programs and activities; but as Major League Baseball and others have learned, Congress can look at any matter, at any time, through the authority it derives from its implied powers in the Constitution, in public laws and in House and Senate rules. Congress normally exercises this power through the committee system, but many other contexts come into play as well (authorization and appropriations bills and hearings, special select committees, reviews and reports from congressional and agency staff, to name a few).

Our team of senior strategists can help guide you through a process that can be trying enough without adding “perplexing and mysterious” to the mix. We know the rules and procedures that govern congressional investigators. We know what motivates them to pursue some issues while leaving others behind. We know how investigations are staged and messaged to maximize political and policy impact.

Rep. Issa and his staff say they are intent on not letting their agenda devolve into petty, personality-driven, partisan attacks. His preference will be for bipartisan inquiries when and where possible; for example, he’ll move to grant subpoena power to inspectors general across government (currently only the Department of Defense Office of Inspector General has that authority) – a move that should garner bipartisan support.

And a look at the blueprint Rep. Issa released back in September for oversight in the 112th Congress suggests a near-wonkish, “good government” set of priorities: federal IT systems, federal financial management, federal agency performance management and food safety. But you can expect most, if not all, high-profile oversight to fall under one thematic umbrella: Republicans’ view that government has grown too much, too fast – the growth of the administrative state, if you will. So, that means there will be plenty of juicy items on the menu as well: “wasteful” stimulus spending, TARP, health care reform, Fannie Mae and Freddie Mac, ACORN and SEC oversight.

But as a former staffer whose job it was to develop, lead and frame contentious, high-profile investigations, I know how fluid the O&I world can be. More than one inquiry was prompted by a splashy news story in The Washington Post or The New York Times or by a phone call from a congressional colleague with a parochial political itch to scratch. Oversight agendas crafted in January are barely recognizable come May and June. Be ready, be vigilant, and ask for help if the light is turned on you. This is both a science and an art.

David Marin is the former Republican Staff Director for the House Committee on Oversight and Government Reform.

For more information about this article or to provide feedback to the author, please contact David Marin at