In recent years, Republicans have gutted the norm of sharing oversight powers with the minority party in Congress. In 2015, they abandoned the rule that certain House committees had to at least consult with the ranking minority member in order to subpoena witnesses (absent a full committee vote).
Then, last year, the White House directed federal agencies to ignore most oversight requests that came via informal letter from minority Democratic legislators, if they lacked support from Republicans. This departure from long-standing norms (which did carve out an exception for national security issues) didn’t get much press but took away an important instrument of accountability. Democrats fiercely protested these developments, to no avail.
Now that they’ve regained the House, Democrats are surely not eager to compromise or share the power that Republicans hoarded so covetously. Two years of being forced into deep freeze will do that. Yet the next speaker should reverse those decisions. The Democrats should expand the minority party’s authority to seek information from the executive branch.
Proponents of political tit-for-tat will argue that Democrats would be fools to grant Republicans the powers that Republicans purposely denied them. But if Democrats truly care about democracy and the rule of law, this is a chance to prove it, by sharing power once more. In many mature democracies, and in the United States until quite recently, the minority legislative party has an important role in overseeing the executive branch. Even if Republicans benefit — and even if they eventually retake control and undo the reform again — this is about protecting our country. And the more strongly the norm is defended, the more difficult it becomes to undo.
A minority role in oversight is most crucial when Congress is controlled by the same party that controls the White House; in that scenario, the majority party will be less inclined to start investigations. The practices that the White House changed — particularly in 2017 — were intended to ensure that partisan change at the polls didn’t wholly blunt Congress as an oversight tool.
Presidential elections are the main check on how the president uses his powers (at least in a first term), but such elections provide a very coarse form of accountability. At times, a single policy — think of Obamacare in 2012 — can dominate the electorate’s perspective, crowding out other concerns. Presidential elections can’t be expected to effectively produce accountability for the full sweep of policies pursued by presidents and the millions who work for them.
Judicial oversight of the executive branch is also patchy, with judges often deferring to claims of executive privilege or invocations of national security. Indeed, the current Supreme Court seems less inclined than its predecessors to practice oversight. Just recently, the court stepped in to stop Commerce Secretary Wilbur Ross from being deposed in a suit over adding a question about citizenship to the census. It gave no reasons, although Justices Neil Gorsuch and Clarence Thomas suggested that Cabinet secretaries should be presumed to act in good faith.
Further, a federal judge rejected requests from congressional Democrats to compel the General Services Administration to disclose information about President Trump’s lease of the Old Post Office Building for his Washington hotel. Democrats had invoked a mostly forgotten 1928 statute, the Seven Member Rule, allowing such requests. They were rebuffed on the technical ground that they lacked standing to sue in federal court.
With the courts and elections playing only a limited role, Congress fills the accountability gap, acting mostly through its various committees.
Many countries make a point of vesting the political opposition with oversight powers. In Argentina, Germany and Portugal, committee chairs are allocated to parties by the percentage of their overall seats, meaning minority parties end up chairing a number of legislative panels. In Britain and Canada, the opposition party heads the committees that monitor government spending. These arrangements ensure that vigorous partisan competition can coexist with active oversight. (In the British parliamentary system, where the legislative majority by definition runs the government, the commitment to a minority role is necessary to avoid a persistent failure of oversight.)
The Democrats have not said whether they will change the current rules for seeking information from the executive. On election night, Minority Leader Nancy Pelosi made only an anodyne promise that House Democrats would seek “openness and transparency” and would “strive for bipartisanship.” Changing oversight rules by empowering the Republican minority would be a truly bipartisan gesture.
The House need not return to the precise consultation rule in existence before 2015. Indeed, that rule could be improved upon. At a minimum, the House could clarify that it expects the executive branch to respond to all requests for information from committee members — of both parties — reasonably and expeditiously, and that failures to do so will be pursued by the committee as a whole. It is strange, after all, that the executive must respond to citizens’ requests under the Freedom of Information Act but not requests from those the citizens have elected.
The House rules could also be changed to mandate committee votes on certain kinds of oversight, perhaps including subpoenas, if requested by the ranking minority member. Some panels might even allow subpoenas to be issued to executive branch officials at the behest of a minority of the committee, under appropriate circumstances.
We acknowledge that there is a risk that these minority rights can be misused. But we think that risk is more than offset by the benefits.
Of course, changes to the House’s rules can always be reversed; Republicans might do so when they return to power. But there is no plausible political pathway at present to permanently enshrine the political minority’s rights in law. And Democrats can point to their action as bolstering an important feature of a well-functioning constitutional republic — hopefully increasing the cost of repealing it in the future by casting such a move as an attack on our polity.
Above all, restoring oversight powers to the minority party would constitute a win for democracy writ large, something our country sorely needs.
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