IP Hearing on: “Civil Enforcement of Congressional Authorities”

June 8, 2021
Speech
June 8, 2021 at 10:00 a.m. via Zoom Video Webinar

Today I convene the subcommittee for a bipartisan hearing on “Civil Enforcement of Congressional Authorities.”  This is an important issue for the Committee, for the institutional interests of Congress, and for the enduring strength of our constitutional system. 

When Congress asks for information it expects to receive it.  Congress cannot effectively or fully carry out its constitutional duties of legislating or oversight without the information it needs to do its job.  An essential part of Congress’s oversight and investigative authority is the power to compel testimony and documentary information, including the power to issue and enforce subpoenas.  The Supreme Court has explained “that mere requests for . . . 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.”   

None of this is to say that Congress can operate carte blanche.  Courts have recognized that certain constitutional privileges, protections, and safeguards exist in the congressional subpoena process.  And, normally, the most expeditious way to obtain information is through negotiation and agreement.  The accommodation process is the bedrock of congressional investigative activity, particularly when those investigations focus on the executive branch.  

What recent history has taught us—and what we will hear more about from the witnesses appearing before us today—is that when the process takes too long, it breaks down and impedes Congress’s constitutionally mandated work.  Timing is often critical because Congress operates in two-year cycles, and a presidential administration can last for as little as four years.  There’s something wrong when we can assume that a court case to enforce a congressional subpoena will last longer than the Congress that issued the subpoena or even the presidential administration defying it, no matter when the subpoena was issued.  

I would be remiss if I did not note the political nature of some of the investigations that inform today’s hearing.  They involve different branches of government, controlled by different parties.  We may not all agree on the purpose, scope, tenor, or even propriety of these investigations.  But what I hope we can all agree on is that the process is important.  Congress cannot function without information to support its legislative efforts.  The institutional interests of Congress are at risk when, in practical effect, the executive branch can control the investigative process, especially when engagement by the judicial branch occurs too slowly.  

The courts are well equipped to resolve disputes over subpoenas.  At bottom, subpoena enforcement is a basic judicial task with which federal courts are very familiar.  This is true even when a case involves co-equal branches of government, as disputes over congressional subpoenas often do.  Recent history, however, suggests that courts may need some additional direction, particularly given the timing sensitivities surrounding congressional subpoenas.  

I look forward to hearing from our witnesses to understand where we are today as we look for solutions to reinforce Congress’s power to compel the production of testimony and documents when negotiations break down.   

I started by saying that this is an important, bipartisan, issue for the committee.  I know this is an issue important to our Ranking Member, Mr. Issa, in particular.  He has invested a lot of time personally in looking for solutions, and a lot of energy in trying to make those solutions into law.  I thank him for his work on the enforcement issue, and look forward to a productive hearing.  

Also, without objection, I would like to enter into the record a statement from Anne Tindall and Grant Tudor at Protect Democracy, titled “Modernizing Congress’s Subpoena Compliance and Enforcement Methods.”

 

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