Additional oversight materials

The following information and materials are intended to provide additional training and background materials to elected officials, staff investigators, and the public as part of the Levin Center's ongoing efforts to strengthen oversight by our legislatures. To direct you more quickly to the sections you are interested in, you can follow the below anchor menu:

  1. Oversight Partners
  2. Oversight Overviews
  3. Key Laws and Precedents (Statutes, Case Law, and DOJ OLC Memos)
  4. Working with Whistleblowers
  5. Oversight Manuals
  6. Oversight Books, Articles and Panels
  7. State-Level Oversight

Oversight Partners

  • The Congressional Research Service (CRS) works exclusively for Congress, assisting committees and Members of Congress at every stage of the legislative process, including with respect to congressional oversight activities. CRS provides research, analysis, reports and memoranda, as well as seminars and staff training. Its website provides information about CRS, while a seperate website provides access to its written products
  • The U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for Congress and assists the oversight efforts of congressional committees and individual Members of Congress. Often called the "congressional watchdog," GAO conducts investigations and audits, and issues testimony and reports with information of interest to Congress. Its website provides information about GAO, its work, and its written products. See also GAO's Next 100 Years: Oversight, Insight, and Foresight.
  • The Council of the Inspectors General on Integrity and Efficiency (CIGIE) is a nonpartisan, independent entity within the executive branch that supports the work of Inspectors General who conduct oversight of federal agencies and report concerns to both agency heads and Congress. The CIGIE website provides information about the individual IG offices. CIGIE also sponsors a free, searchable website containing all IG reports in one place.
  • The Congressional Management Foundation (CMF) is a nonpartisan, nonprofit organization that works directly with Members of Congress and their staffs to enhance their management and operations, including with respect to oversight activities. CMF conducts staff training, conducts research, identifies best practices, and issues reports. Its website provides information about CMF itself, its work, and its written products.  
  • The Project on Government Oversight (POGO) is a nonpartisan, nonprofit organization that supports robust congressional oversight and also conducts its own investigations to expose waste, fraud, and abuse.  Among the services it provides are the following:
    • Newsletter - POGO publishes The Paper Trail, a twice-weekly roundup of oversight news, events, and analysis, which is free of charge to subscribers. You can sign-up here
    • Oversight Summit Videos - POGO offers a series of free online panels on congressional oversight issues under an initiative it calls the Oversight Summit.
    • Training Opportunities - POGO offers a menu of free bipartisan oversight training options open exclusively to congressional staff.
    • Oversight Materials - POGO provides a range of instructional materials related to conducting Congressional oversight.

Oversight Overviews

Key Congressional Oversight Laws and Precedents

1. Statutes

  • Congress Generally: U.S. Code, Title 2, The Congress, especially Chapter 6, Congressional and Committee Procedure; Investigations, and Chapter 9D, Office of Senate Legal Counsel
  • No false statements to Congress: 18 U.S.C. § 1001 states that anyone who "knowingly and willfully … falsifies, conceals, or covers up … a material fact" or "makes any materially false, fictitious, or fraudulent statement," or makes or uses "any false writing" in a matter within the jurisdiction of Congress can be fined, imprisoned for up to five years (eight for terrorism), or both. In general, a person who makes a false statement to a senator, representative, or congressional staffer during an authorized "investigation or review," including in a deposition, interview, telephone call, letter, or email, risks prosecution. 
  • Perjury: 18 U.S.C. § 1621 makes a misstatement of a "material matter" under oath punishable with a fine, imprisonment of not more than five years, or both.
  • Congressional obstruction statute: 18 U.S.C. § 1505 makes it a crime for anyone to "corruptly" or through the use of "any threatening letter or communication" to "influence, obstruct, or impede" a congressional inquiry or investigation. Violating the statute is punishable with a fine, imprisonment of not more than five years, or both.
  • Congressional criminal contempt statute: 2 U.S.C. § 192 authorizes Congress to find that a person who was summoned as a "witness" before a house of Congress, and who refused to appear, answer questions, or produce requested "papers," is guilty of a criminal misdemeanor, and subject to a monetary fine or imprisonment of not more than one year. 
  • Senate civil contempt statutes: 2 U.S.C. §§ 288b(b) and 288d, and 28 U.S.C. § 1365 authorize the filing of a civil suit in the U.S. District Court for the District of Columbia against anyone resisting a Senate subpoena other than an executive branch officer or employee (who enjoy a statutory exemption).
  • Congressional access to tax returns. 26 USC § 6103(f) states that the Treasury Secretary, upon receiving a written request from the chair of the House Ways and Means Committee, Senate Finance Committee, or Joint Committee on Taxation, "shall furnish" any specified tax return or tax return information.

2. Case Law

     Authority of Congress to Investigate

Trump v. Mazars USA, LLP, 591 U.S. __, 140 S. Ct. 2019 (2020) ("Without information, Congress would be shooting in the dark, unable to legislate 'wisely or effectively.' Id., at 175. The congressional power to obtain information is 'broad' and 'indispensable.' Watkins v. United States, 354 U. S. 178, 187, 215 (1957). It encompasses inquiries into the administration of existing laws, studies of proposed laws, and 'surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.' Id., at 187.")("'It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served.' United States v. Rumely, 345 U. S. 41, 43 (1953) (internal quotation marks omitted).")

Watkins v. United States, 354 U.S. 178, 187, 194-195 (1957) ("The power of Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the federal government to expose corruption, inefficiency or waste. … It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation.")("The Court recognized the danger to effective and honest conduct of the Government if the legislature's power to probe corruption in the executive branch were unduly hampered.")

McGrain v. Daugherty, 273 U.S. 135, 174-175 (1927) ("[T]he power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function. … A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information – which not infrequently is true – recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.")

Comm. on the Judiciary, U.S. House of Representatives v. McGahn, (D.C. Cir. Aug. 7, 2020) (en banc) ("Congress cannot intelligently legislate without identifying national problems in need of legislative solution and relying on testimony and data that provide a deeper understanding of those problems, their origins, and potential solutions. It likewise cannot conduct effective oversight of the federal government without detailed information about the operations of its departments and agencies.").

Townsend v. United States, 95 F. 2d 352, 361 (D.C. Cir.), cert. denied, 303 U.S. 665 (1938) ("A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress. … A judicial inquiry relates to a case, and the evidence to be admissible must be measured by the narrow limits of the pleadings. A legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be responsive to the scope of the inquiry which generally is very broad.")(emphasis in original)

    Congressional subpoenas

Trump v. Mazars USA, LLP, 591 U.S. __, 140 S. Ct. 2019 (2020) ("Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but we have held that each House has power 'to secure needed information' in order to legislate. McGrain v. Daugherty, 273 U. S. 135, 161 (1927). This 'power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.' Id., at 174.")

Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 503, 509 (1975) ("[W]hether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled. We reaffirm that once it is determined that Members are acting within the 'legitimate legislative sphere' the Speech or Debate Clause is an absolute bar to interference. … The power to investigate and to do so through compulsory process plainly falls within that definition.")("The wisdom of congressional approach or methodology is not open to judicial veto. … Nor is the legitimacy of a congressional inquiry to be defined by what it produces. The very nature of the investigative function -- like any research -- is that it takes the searchers up some 'blind alleys' and into nonproductive enterprises. To be a valid legislative inquiry, there need be no predictable end result.")

Wilkinson v. United States, 365 U.S. 399, 408-409 (1961) (upholding House subpoena directed to a private individual, because (1) it involved matters the committee was "authorized" by Congress to investigate; (2) the investigation had "a valid legislative purpose;" and (3) the requested information was "pertinent to the subject matter of the investigation.")

McPhaul v. United States, 364 U.S. 372, 381–382 (1960) (sustaining congressional requests for records from a private party "not plainly incompetent or irrelevant to any lawful purpose" and "reasonably relevant to the inquiry")  

Anderson v. Dunn, 19 U.S. 204, 228 (1821) (holding Congress has inherent authority to hold persons in contempt and impose punishment on them, including imprisonment, otherwise Congress would be "exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it")

Comm. on the Judiciary, U.S. House of Representatives v. McGahn, (D.C. Cir. Aug. 7, 2020) (en banc)("Each House of Congress is specifically empowered to compel testimony from witnesses and the production of evidence in service of its constitutional functions, and the recipient of a subpoena is obligated by law to comply.")

Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34, 44 (D.C.C. 2018) ("While … 'Congress' investigatory power is not, itself, absolute' and … it 'is not immune from judicial review,' … this Court will not – and indeed, may not – engage in a line-by-line review of the Committee's requests.")

Senate Permanent Subcommittee on Investigations v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016), vacated as moot sub nom. Senate Permanent Subcommittee on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017) (upholding Senate subpoena of a private party despite multiple objections, including that it was overbroad and infringed upon free speech)

Senate Permanent Subcomm. v. Ferrer, 199 F. Supp. 3d 125, 134 (D.D.C. 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017)(When considering civil enforcement of a Senate subpoena under 28 U.S.C. § 1365, "[t]he statute strips this Court of its customary authority to modify or quash a subpoena. It allows the Court only to decide whether to enforce the subpoena brought before it. … The statute's legislative history makes clear that 'the court's jurisdiction is limited to the matter Congress brings before it, that is whether or not to aid Congress is enforcing the subpoena or order.' Id. (emphasis added). It is the Senate's constitutional prerogative to decide what to bring before the Court.")

Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17 (D.D.C. 1994), stay pending appeal denied, 510 U.S. 1319 (1994)(upholding Senate subpoena for a senator's personal diary despite objections that the request was overbroad and violated his Fourth Amendment right to privacy and Fifth Amendment right against self-incrimination)

    Executive privilege

Trump v. Vance, 591 U.S. __ (2020) ("Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.")

United States v. Nixon, 418 U.S. 683 (1974) (rejected executive privilege claim by President Nixon to federal grand jury subpoena by special prosecutor for certain tapes, weighing the importance of the privilege against the need for "fair administration of criminal justice")

Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (D.C. Cir. 1974) (denied Senate subpoena for President Nixon's tapes due to insufficient showing of need and demand was "too tangential" to committee's function for court to force president to comply)

In Re Sealed Case (Espy), 121 F. 3d 729 (D.C. Cir. 1997) (distinguished between "presidential communication privilege" and "deliberative process privilege" and found that the former applies to direct decision-making by the president, is constitutionally based, and requires a higher showing of need than the deliberative process privilege which applies to agency heads, is common law based, and disappears if there is a showing of wrongdoing)

Comm. on Oversight & Gov't Reform, United States House of Representatives v. Sessions, 344 F. Supp. 3d 1, 14-15 (D.D.C. 2018) ("During the course of this litigation pitting two branches of the United States government against one another, the Court determined: that the dispute was justiciable and that Congress could seek to enforce its duly issued subpoena in this Court; that the executive branch could invoke the deliberative process prong of the executive privilege to shield records from production to the legislature; that the privilege could not be asserted on a blanket basis, though, but only on a document-by-document basis; that the privilege covered internal deliberations concerning communications with Congress or the media; and that the privilege was not absolute and could be waived or overcome by a showing of need.")

Committee on Judiciary, U.S. House of Representatives, v. Miers, 558 F. Supp. 2d 53, 91 (D.D.C. 2008) ("Clear precedent and persuasive policy reasons confirm that the executive cannot be the judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from compelled congressional process.")

3. Department of Justice Office of Legal Counsel Memos

Working with Whistleblowers

Oversight Manuals

Oversight Books, Articles and Panels

More materials are available in the Oversight research & datasets section and the Oversight history section.
 

State-Level Oversight

Oversight of State Emergency COVID Contracts

In light of the COVID-19 pandemic, the Levin Center has started researching state-level oversight of no-bid emergency contracts related to the pandemic response. Our report was published in November 2020 : read our press release here or download the full report. Oversight of emergency contracts has also made it into the news highlighting state legislatures efforts to oversee emergency spending: