When Congress Checks Out

Norman J. Ornstein and Thomas E. Mann

From Foreign Affairs, November/December 2006

Summary:  Over the past six years, Congress' oversight of the executive branch on foreign and national security policy has virtually collapsed. Compounding the problem, the Bush administration has aggressively asserted executive prerogatives -- sometimes with dire consequences. The oversight problem must be fixed, ideally as part of a more fundamental effort to restore the balance between the two branches.

Norman J. Ornstein is a Resident Scholar at the American Enterprise Institute. Thomas E. Mann holds the W. Averell Harriman Chair and is a Senior Fellow in Governance Studies at the Brookings Institution. They are the authors of The Broken Branch: How Congress Is Failing America and How to Get It Back on Track.

But since George W. Bush has become president, oversight has all but disappeared. From homeland security to the conduct of the Iraq war, from allegations of torture at Abu Ghraib to the surveillance of domestic telephone calls by the National Security Agency (NSA), Congress has mostly ignored its responsibilities. The same is true of less publicized issues involving the United States and the rest of the world, including U.S. relations with trading partners and rivals, allies and adversaries. The year-and-a-half hiatus in the Republicans' control of the Senate, which came after 9/11 and during a nationwide surge in patriotism, did not noticeably reverse that pattern.

The numbers are striking. Examining reports of the House Government Reform Committee, the journalist Susan Milligan found just 37 hearings described as "oversight" in 2003-4, during the 108th Congress, down from 135 in 1993-94, during the last Congress dominated by Democrats. The House Energy and Commerce Committee produced 117 pages of activity reports on oversight during the 1993-94 cycle, compared with 24 pages during 2003-4. In the mid-1990s, the Republican Congress took 140 hours of testimony on whether President Clinton had used his Christmas mailing list to find potential campaign donors; in 2004-5, House Republicans took 12 hours of testimony on Abu Ghraib.

When committees do hold hearings, they tend to focus on routine budget review. Charles Stevenson, a longtime Senate staffer, has noted that "the Senate Armed Services Committee held no hearings specifically on operations in Afghanistan in 2003 and 2004, and only nine on Iraq [excluding the prisoner-abuse matter] in that two year period -- less than 10 percent of its total hearings. The House Armed Services Committee held only one hearing on Afghanistan in 2003 and 18 on Iraq during 2003-2004 -- less than 14 percent of its total number of hearings. The Senate Foreign Relations Committee spent 19 percent of its time on those two countries." Such hearings, moreover, suffer from "stovepiping" -- the practice of looking only at matters and people within one's narrow jurisdiction -- which prevents Congress from taking a comprehensive view of certain policies. Only one Senate Foreign Relations Committee hearing involved a senior military officer, and only two saw witnesses from the Department of Defense.

ANYBODY HOME?

Foreign policy has dominated the attention of Americans since 9/11, and especially since the Iraq war began. Major issues have included the formulation and execution of terrorism policy, the invasion of Afghanistan, prewar intelligence, the invasion of Iraq, the conduct of the Iraq war and its aftermath, the NSA's surveillance program, reform of the intelligence apparatus, homeland security, the treatment of detainees, and U.S. borders and immigration. And yet, Congress has failed to ask how policies in these areas have been carried out, how faithfully laws have been executed, how reasonably taxpayer dollars have been spent, how well the executive branch has stayed within its constitutional bounds, and how vigorously malfeasance or nonfeasance by public agencies and private contractors has been handled.

Lapses have been especially apparent on issues relating to homeland security. The Department of Homeland Security (DHS) has been beset by a series of management problems, a lack of consistent focus, and a failure to sort out its numerous responsibilities -- all problems that were utterly predictable. From its inception, the department has been a near revolving door when it comes to its top management team, has had major problems integrating agencies, and has had a less-than-stellar record creating an integrated information-management system for the department, not to mention coordinating its computers with those at the FBI.

What are the causes of these problems? Poor planning and faulty execution. Even prior to 9/11, the Hart-Rudman commission, which was set up to review U.S. national security needs for the twenty-first century, had recommended the creation of a new department bringing together agencies and bureaus tasked with combating terrorist threats and responding to domestic attacks and natural catastrophes. It was a powerful idea but a complex task, and determining what the department should look like and do called for much debate. Yet these questions were never debated. After vehemently resisting the creation of such a body for almost nine months, in 2002 President Bush made a dramatic turnaround virtually overnight and unveiled a far more sweeping plan, which had been secretly hatched by several key administration aides. There was no deliberative process to question the extent of the reorganization and its breakneck pace. Absent, too, was any talk of starting with a new department of border security and moving incrementally to something grander. When the DHS bill came to Congress, it sparked only one serious controversy: Would civil service protections for the DHS' 170,000 employees be eliminated? That question became a major campaign issue in the 2002 elections, while important questions about what the DHS should be and do were ignored. The DHS that was eventually created was much larger than the Hart-Rudman commission had envisioned: it had to integrate 22 preexisting entities -- the largest reorganization in the history of the federal government. It was still reeling from the job when Katrina struck in August 2005, and so rather than operate as the centerpiece of a federal response to the crisis, as foreseen, the bloated bureaucracy was unable to figure out what to do for days, its inaction compounding the tragedy.

Congress' failure to oversee the DHS has been crushing. Realistically, only Congress can prod such a massive department and determine whether when mad cow disease strikes or self-initiated Minutemen patrol the border, the Animal and Plant Health Inspection Service or the Citizenship and Immigration Services (formerly the Immigration and Naturalization Service), both part of the DHS, are able to manage the problems. The same is true of the Federal Emergency Management Agency (FEMA), which lost its robust independent status when it was subsumed in the DHS; it has been roiling with confusion ever since.

For three years after the creation of the department, Congress did nothing to ensure that the preexisting functions of its 22 components were well maintained while new ones were added. The House only reluctantly and belatedly created the Select Committee on Homeland Security and gave it no legislative jurisdiction or control over the DHS' budget or activities. Knowing the committee's relative powerlessness, top officials at the DHS have treated it with indifference or contempt.

More generally, there has been no serious oversight of the DHS in either house. Perversely, the problem has been compounded by the incessant demands of the 88 congressional committees and subcommittees that, eager for political cachet and cover, have sought to grab a piece of homeland security jurisdiction by demanding that top DHS officials testify before them. The agency's top managers have spent a lot of time at Congress but almost none seriously examining the DHS' functions and performance. One result was the abject failure of the DHS and FEMA to handle the aftermath of Hurricane Katrina.