Who?

The Senate Homeland Security and Government Affairs Committee (HSGAC) and the House Committee on Oversight and Government Reform (COGR) are the primary oversight and investigations committees in each chamber. While the Constitution and legal precedent have given investigative power to Congress (see Rosenberg Reference Rosenberg1995, 2–5; Kaiser et al. Reference Kaiser, Oleszek, Halstead, Rosenberg and Tatelman2007), Senate and House rules have given these particular committees the power to investigate. Additionally, in Congress there are 46 committees, which currently have 169 subcommittees. By title, 17 of these subcommittees work on oversight and/or investigations (Capitol Advantage 2007).Footnote ¹ With so many entities empowered to investigate, who makes decisions about investigation topics, courses, and outcomes?

In any of these committees or subcommittees, one can look to a familiar list of key decision makers. On top of the list are the members of Congress themselves, the full committee chairperson (chair) and ranking minority member (RM), each of which has the ultimate say in what a committee staff will investigate. Below the member of Congress, but at the head of each committee staff, is a staff director or chief counsel, a person who communicates directly with the chair or RM and serves as lead decision maker within the committee office. Within each staff investigators have various areas of focus and expertise. Whether these investigators work on their own or in concert with other staff members, these are the people that make daily decisions about how an investigation will be pursued. Subcommittees parallel this decision-making structure; each has a chair and RM, staff director, and investigators.

The mechanism of decision making and levels of activity differ across committees, and depend greatly on the preferences of the chair and RM. Chairs, RMs, and staff members of the five HSGAC subcommittees, for example, largely make their own decisions about which investigations their subcommittees will pursue and how. In April 2008, the Senate HSGAC's subcommittees held five investigative hearings, while the full HSGAC held four of its own (Senate HSGAC 2008). In contrast, during the same month the House COGR held two hearings jointly with subcommittees and two on its own, while its five subcommittees held a total of 12 hearings independently of the full committee (House COGR 2008).

What?

The two main factors influencing the decisions of a committee or subcommittee to pursue a particular investigation are its legal jurisdiction and its decision makers' interests. Each committee or subcommittee has a jurisdiction set by the rules of its chamber; typically, these refer to agencies and topics of relevance to the committee. The House Science and Technology Subcommittee on Investigations and Oversight, for example, oversees all matters pertaining to research and development in energy, civil aviation, marine and astronautic sciences, and outer space, as well as the National Aeronautics and Space Administration, the National Science Foundation, the National Space Council, and the National Weather Service (House Rule 3 a 5; House Rule X(3)(k)). The Senate Judiciary Subcommittee on Administrative Oversight and the Courts has jurisdiction over court administration and management, judicial rules, creation of new courts, bankruptcy, administrative practices, legal reform, the Department of Justice programs, private relief bills, and the Foreign Claims Settlement Commission (Senate Committee on the Judiciary 2008).

Within jurisdictional limits, however, “a committee's investigative purview is substantial and wide-ranging” (Rosenberg Reference Rosenberg1995, 3). Ultimately, there are so many topics and agencies within a committee's jurisdiction that each staff has to choose from among many investigations it could pursue at any given time. Often these choices are based simply on the interest of the entity's key decision makers. The Senate Permanent Subcommittee on Investigations (PSI), for example, has jurisdiction over the private sector; it can investigate agencies as well as private companies, non-profit organizations, and individuals. Senator Carl Levin (D-MI) currently chairs this subcommittee. In the past 10 years, either as chair of the subcommittee or RM of the minority staff, Levin has directed its focus toward issues regarding financial transparency. Recent investigations on private banking, money laundering, the role of financial institutions in Enron's collapse, tax haven abuses, and abusive credit card practices illustrate the trend.

Investigations also reflect reports from or actions taken by news outlets, congressional entities, or executive agencies. On April 29, 2008, the House Committee on Oversight and Government Reform and its Subcommittee on National Security and Foreign Affairs held a joint hearing regarding a Government Accountability Office (GAO) report entitled Defense Acquisitions: Assessments of Selected Weapon Programs, and invited GAO representatives to testify (Subcommittee on National Security and Foreign Affairs 2008). Senator George Mitchell's Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball, was the stated impetus of the COGR hearing in which Clemens testified in 2008 (COGR 2008).

How?

Once key decision makers have determined what they will investigate, investigators collect information on the designated topic. Investigative staff may utilize the resources of three analytical offices, the Congressional Budget Office, the Congressional Research Service, and the Government Accountability Office, to obtain information and reports on topics of interest. These agencies gather data, provide estimates, forecast outcomes, and analyze issues of relevance to congressional committees. They answer hundreds of calls on a daily basis from staffers throughout Congress.

Committees and subcommittees also have the power to subpoena documents and information pertinent to their investigations (Senate Rule XXVI(1); House Rule XI(2)(m)(1)). In most committees and subcommittees, either a quorum of members or the consent of both the chair and RM is needed to approve the issuance of a subpoena. Once issued these subpoenas are as legally compelling as subpoenas issued by the full chamber (Kaiser et al. Reference Kaiser, Oleszek, Halstead, Rosenberg and Tatelman2007). Two members of Congress have been given unilateral subpoena power: the chair of the Senate PSI, and the chair of the House COGR. These members may issue subpoenas without the consent or approval of other members (House Committee on Government Reform Rule 18 (d); Senate Committee on Homeland Security and Governmental Affairs Rule 5.C.).

While a subpoena compels testimony, many people and organizations are willing to provide information to investigative committees without the necessity of a subpoena. Since it is a felony to lie to Congress, a formal deposition is rarely necessary when conducting interviews, particularly if the interviewee agree to appear voluntarily. Often, individuals are happy to tell their stories and provide supporting evidence. The PSI's 2004 report Profiteering in a Non-Profit Industry: Abusive Practices in Credit Counseling uses evidence from two private citizens to illustrate defects in the consumer credit counseling arena (U.S. Congress 2004).

Often the best way for an investigative committee to uncover the truth is through the analysis of documents. The PSI, in its 2001 hearings on U.S. correspondent banking and international money laundering, presented documents produced by banks, accounting firms, and the federal prosecutions. These exhibits were offered as proof that correspondent banking accounts in U.S. banks have, at times, served as conduits to launder money gained through smuggling, trafficking, and embezzlement overseas (U.S. Congress 2001).

Where?

Whether collected by request or compelled by subpoena, interviews, depositions, and documents come from an array of actors and entities. Among individual citizens and their families; federal, state, and local officials; academics and interest groups; and private corporations, many parties can provide information that might be useful to a congressional investigation. Recent hearings of the House Energy and Commerce Subcommittee on Oversight and Investigations illustrate the types of information these parties can provide.

In its April 2008 hearing “The Heparin Disaster: Chinese Counterfeits and American Failures,” the subcommittee began by presenting testimony of individuals whose family members had been affected by the drug heparin. These individuals illustrated the practical impact of heparin regulation failures on the public. They were followed by compliance and consumer safety officers from the Food and Drug Administration, who informed investigators of the regulatory agency's policies, positions, and actions with respect to the contamination of heparin. Finally, representatives of several drug companies were compelled to testify as to their involvement in the distribution, recall, and corrective action after the issuance of substandard heparin (U.S. Congress 2008b).

In 2007, the subcommittee held a four-part series of hearings on the safety and security of the nation's food supply. IIn those hearings, interest group leaders and state and local officials provided valuable information on a wide variety of issues. Representatives of interest groups such as the Center for Nutrition Policy and Promotion, the American Coalition for Tilapia, and the Food & Water Watch group informed investigators as to their concerns regarding the entrance of pathogens and contaminants into the food supply. Representatives of the FDA's local offices in Kansas City, San Francisco, and Cincinnati testified as to the capabilities of their labs and the shortcomings they face due to a lack of staff (U.S. Congress 2007).

Why?

Limits do exist on the authority of a committee or subcommittee to investigate a particular issue. In addition to fitting within its designated jurisdiction, the investigation must have a valid legislative purpose. As the Supreme Court found in the case of Watkins v. United States (quoted in Rosenberg Reference Rosenberg1995, 3), “There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress … nor is the Congress a law enforcement or trial agency … No inquiry is an end in itself, it must be related to, and in furtherance of, a legitimate task of the Congress.” Within these bounds, committees investigate matters to various ends. Committee staff investigate existing laws to determine whether misconduct is being caught or punished, and whether those laws should be changed or supplemented with new legislation.