Congress must use bipartisan oversight as the gold standard

Pundits are predicting that if Democrats take back the House in the midterm elections this November, they will unleash an avalanche of oversight investigations that will bring the Trump administration to its knees. But investigations aimed solely at damaging the presidency would be a grave mistake, contrary to the duty of Congress under the Constitution to provide fact based and policy oriented oversight geared towards solving real problems for the American people.

While the contours of the investigative authority of Congress are not spelled out in the Constitution, the Supreme Court has established the right of Congress to investigate as a necessary corollary to its other functions. In its 1927 opinion in McGrain v. Daugherty, the court upheld the right of Congress to compel information in order to make informed decisions when crafting legislation, appropriating funds, and acting to provide the checks and balances envisioned by the Founders.

{mosads}Today, it is undisputed that Congress has the authority to conduct broad inquiries and subpoena information. In recent years, however, too many House investigations have devolved into partisan exercises aimed at scoring political points. Those failed investigations have embarrassed the House, tarnished reputations, and failed to produce real change.

If Democrats were to become the majority party in the House this fall, they might consider following instead the path taken by Senator Carl Levin of Michigan. Until his retirement in 2015, Senator Levin, who was my boss for nearly 30 years, devoted himself to conducting bipartisan and in depth oversight investigations. In his last 15 years in Congress, he concentrated his oversight efforts at the Permanent Subcommittee on Investigations, the premier Senate investigative body.

During his tenure on the subcommittee, Senator Levin carried out bipartisan and groundbreaking investigations into the collapse of Enron, secret offshore accounts opened for American clients by Swiss banks, money laundering misdeeds at HSBC, abusive credit card practices, wrongdoing by Goldman Sachs during the financial crisis, years of tax dodging by Apple, and more. Those inquiries led to stronger accounting standards and safeguards against money laundering, tighter credit card and bank controls, and greater tax transparency measures for multinational corporations, among other reforms.

When colleagues asked how the subcommittee produced such landmark investigative results and policy outcomes, Senator Levin responded that it was because the inquiries were relentlessly bipartisan and fact based. He said the secret to the success of the subcommittee was that he and his Republican partners over the years, including Senators Tom Coburn, Norm Coleman, Susan Collins, and John McCain, directed their staffs to work together and to follow the facts wherever they led.

Standard subcommittee practice was for the Democratic and Republican staffs to do all of their fact finding together, using a joint investigative plan, joint document requests, and joint witness interviews. Witnesses facing this unity had difficulty opposing its information requests. The staff then worked together to analyze and write up the investigative results and produce joint press releases. Having experienced that bipartisan approach first hand, I can attest to not only its effectiveness, but also the satisfaction both staffs derived from finding common ground.

While the senators did not always agree on policy solutions, they were almost always able to agree on the facts at the conclusion of a subcommittee investigation. In our complicated world today, reaching agreement on key facts like the subcommittee staff could do in a bipartisan manner is a major accomplishment. The resulting shared understanding of a problem often helped provide a platform for solving it.

Of all the inquiries in which I was involved, those that proceeded on a bipartisan basis were invariably more thoughtful, thorough, accurate, and credible. When investigators with different perspectives work together in good faith, they typically bring attention to a wider range of details, collect more evidence, offer contrasting theories of what happened, and engage in stronger analysis. The investigative findings rest on a solid factual foundation both sides support. When those results are presented on a bipartisan basis, they are often viewed by other lawmakers, officials, the media, and the public as inherently more trustworthy.

If Democrats take control of the House, they have a choice. If they follow the partisan path trod by some Republicans, they will produce the same unfortunate results, generating more noise than light and continuing to sour the American people on Congress. If the goals instead are to achieve meaningful reforms and restore public confidence in Congress, the majority party needs to aim for the gold standard in oversight with fact based and bipartisan policy oriented investigations.

Elise Bean was the staff director to Senator Carl Levin on the Permanent Subcommittee on Investigations. She is now a director of the Washington office of the Levin Center at Wayne Law and the author of “Financial Exposure: Carl Levin’s Senate Investigations into Finance and Tax Abuse.”