On May 10, a three-judge panel of the D.C. Circuit upheld Steve Bannon’s criminal contempt conviction for noncompliance with subpoenas issued by the House committee established to investigate the January 6th riot and break-ins at the U.S. Capitol. This has been one of many recent controversies involving the law of congressional investigations and Congress’s legal power to enforce its subpoenas for documents and testimony. Another development this month, however – a call from the House Oversight and Accountability Committee chairman to withhold funding from executive agencies it considers uncooperative – is illustrative of Congress’s structural legislative power to enforce its oversight requests. Contempt fights often garner the attention, but Congress tends to have better success at enforcing its prerogatives when it uses legislative leverage.
IMAGE: Infographic summarizing Congress’s oversight enforcement mechanisms. (Credit: Pooja Shah, Just Security)
Congress has used three types of contempt powers – inherent, criminal (Congress refers to federal prosecutor), and civil (Congress files civil enforcement suit in federal court) varieties – with varying degrees of success. Inherent contempt, which has fallen out of use for more than a century, occurs when a chamber of Congress makes a contempt finding and detains the resisting witness in a congressional detention facility. Criminal contempt, like the Bannon case, consists of a congressional referral of the resisting party to the U.S. Attorney for the District of Columbia for criminal prosecution. And, finally, civil contempt occurs when Congress files an action in federal court seeking enforcement of its subpoena. For example, House committee initiated litigation during the Obama administration in a fight about assertions of executive privilege over Justice Department documents, subpoenaed by Congress, that related to a problematic investigation of arms trafficking on the southern border, code-named Operation Fast and Furious. For more full definitions of those three types of contempt, see here.
These contempt remedies are designed as endpoints in a formal oversight escalation process: Congress requests information –> unsatisfied, Congress uses subpoena power in an effort to compel the recalcitrant party –> still unsatisfied, Congress holds the party in contempt and then pursues one of the contempt remedies. In that sense, contempt represents a remedy that is internal to the investigation escalation process. None of these have been particularly effective over time at successfully obtaining documents or testimony from an executive branch official who refuses to comply with a congressional subpoena in defense of an executive branch legal position. Congress’s enforcement problems are exacerbated by the political calendar: if an investigation can’t conclude before an election cycle, it could be halted by a newly elected majority or preclude voters from having material information.
In contrast, Congress’s structural oversight remedies, when deployed, have tended to be more successful. Structural remedies are characterized as a function of legislative leverage rather than more legalistic contempt powers. As the Congressional Oversight Manual notes:
If a witness is initially reluctant to comply with a committee subpoena, Congress can sometimes use the application of various forms of legislative leverage, along with an informal political process of negotiation and accommodation, to obtain what it needs. With regard to executive branch officials, Congress exercises substantial influence through the legislative control of agency authority, funding, and, in the case of the Senate, confirmation of certain agency officials.
(Citations omitted.)
The House Oversight and Accountability Committee is pursuing one such enforcement remedy that is external to the process: using budget authority as a punishment for agencies that have defied congressional oversight requests. In a press release, Chairman James Comer (R-KY), “called on the Committee on Appropriations to use the power of the purse to hold government agencies accountable by withholding funding in the Fiscal Year 2025 budget from agencies who have failed to cooperate with oversight investigations.” The press release identifies the Food and Drug Administration, the Department of Agriculture, the Securities and Exchange Commission, the Department of Energy, the Environmental Protection Agency, and the Department of Defense as offending agencies.
The corresponding seven-page letter to House Appropriations Committee Chairman Tom Cole (R-OK), details complaints about Biden administration agencies’ oversight responses across the appropriations subcommittees of jurisdiction: Agriculture, Rural Development, and Food and Drug Administration; Labor, Health and Human Services, and Education; Commerce, Justice, and Science; State and Foreign Operations; Financial Services and General Government; Energy and Water Development; Interior and Environment; and Defense. The request seeks to send a message by “clearly mandating that failure to comply with congressional oversight requests for documents and information will result in a loss or reduction of funding at a given agency to gain compliance.”
Another type of external oversight enforcement mechanism is the Senate confirmation process. As a structural dynamic, an administration wants to have presidential appointees get confirmed, and Congress therefore has leverage to extract concessions. At times, oversight priorities become one of those concessions. A prime example of that leverage put to use was John Brennan’s confirmation hearing as Director of the Central Intelligence Agency. As reported by Politico at the time:
On the eve of the hearing, the administration moved Wednesday to defuse one key point of tension with Congress by agreeing to fork over classified Justice Department legal advice authorizing the use of drones or other lethal force against Americans involved in terrorist groups. Lawmakers had been demanding access to the documents for up to two years and some were hinting at holding up Brennan’s confirmation unless the White House allowed lawmakers to see the formal legal opinions that OK killing U.S. citizens serving as senior operational leaders of Al Qaeda and affiliated groups.
The same could hold true for legislation deemed must-pass by the executive branch. Back in 2014, in Constitutional Conflict & Congressional Oversight, I noted that there “are a number of formal and informal remedies Congress uses to enforce its oversight prerogatives, including three types of contempt (inherent, criminal, and civil), appropriations leverage, legislative authorizations, Senate advice and consent, punitive oversight, and political or press narratives.”
While Congress’s legislative enforcement function can be effective at overcoming executive branch recalcitrance, it can be hard to deploy given competing political priorities. First, the Appropriations Committee has a list of its own policy and program priorities that it wants to spend its political capital on in budget and funding negotiations with the Senate and executive branch. House leadership, too, will have competing priorities. And, in the context of a high-stakes negotiation, prioritized oversight enforcement may not provide the political cover necessary when a government shutdown or fiscal cliff is at stake. Finally, in the current Congress, the razor-thin Republican majority and fiscal policy dissent at the edges of the Republican conference have required bipartisan votes on a number of major bills. Thus, seeking budgetary enforcement of investigations deemed by Democrats as partisan could become a headache for the House leadership team on legislation it otherwise deems must-pass. As a matter of inter-committee and intra-conference dynamics, it will be interesting to see whether the Appropriations Committee acts on this request. And if the Committee does act, what form would it take?
It is easy, especially for litigation-minded lawyers, to focus the most attention on investigation enforcement mechanisms like contempt, but in Congress the vast majority of enforcement flows from more direct elements of legislative power. Comer’s letter is a prime example of an effort to bring that appropriations leverage to bear.