By Philip S. Barnett and Gregory Dotson*
Most people think of Congress as a legislative body. That’s of course understandable. But our experience has taught us that oversight can be as important as legislation. Simply by holding hearings, asking questions, and releasing information, Congress can have a major impact on national policy. In fact, oversight can be particularly influential in periods of divided government. When the new Congress convenes in January, oversight may be one of the best ways for a more progressive House of Representatives to advance its agenda – including advancing environmental and public health protections and taking action on climate change.
The Roles of Congressional Oversight
Oversight can hold people accountable for misconduct. Even from the minority, Democratic leaders like Reps. Elijah Cummings and Frank Pallone and Senators Tom Carper, Sheldon Whitehouse, and Tom Udall were able to expose misconduct that led to the recent resignation of Scott Pruitt from the Environmental Protection Agency. Now both Mr. Cummings and Mr. Pallone are likely to chair major House committees, the House Oversight and House Energy and Commerce Committees, respectively, that will give them new powers to probe evidence of self-enrichment and malfeasance.
Oversight can change executive branch policy. It was an investigation by the House Oversight Committee in 2007 that exposed the dangers of formaldehyde contamination in FEMA trailers and forced the agency to provide safer housing for the victims of Hurricane Katrina. The flawed response to Hurricane Maria in Puerto Rico needs similar scrutiny.
Oversight can lead to legislation. The comprehensive FDA food safety reforms passed by Congress in 2010 were motivated by investigations in the Energy and Commerce Committee into salmonella outbreaks in peanut butter and eggs that revealed grossly contaminated conditions, criminally negligent company conduct, and lax federal and state inspections. We might all be surprised at what President Trump might be willing to sign into law when the public is exposed to compelling facts.
And oversight can galvanize public opinion and shape policy at all levels of government, as Rep. Henry Waxman’s tobacco investigation in the 1990s illustrates.
Yet as powerful as congressional oversight can be, its effectiveness can be blunted if committees abuse their powers and elevate gaining partisan advantage over seeking the truth. This happened in the 1990s when Republican Oversight Chairman Dan Burton issued over 1,000 unilateral subpoenas in pursuing unsubstantiated allegations against President Clinton. It happened again when one of his successors, Republican Oversight Chairman Darryl Issa, issued over 100 unilateral subpoenas in a discredited effort to prove the Obama Administration was “the most corrupt government in history.” And it happened again this year when House Republicans issued still more subpoenas to impugn the integrity of the Justice Department, the FBI, and the Mueller investigation.
The key to effective investigation is a commitment to facts. The newly elected majority in the House is already signaling a promising approach: they will not pursue investigations of the Trump Administration just to score political points, but will not shy away from investigating the President or his appointees where the evidence warrants it. If the new Democratic chairs pursue fact-based investigations, they will be serving the public interest and fulfilling the founders’ vision of Congress as a check and balance on executive branch abuse.
Oversight and Climate Change in the 116th Congress
In the case of climate change, there are at least three areas where House Democrats could make a major contribution. First is educating the public about the dangers of climate change. For the last eight years, hearings on climate in Congress have given platforms to science deniers who mislead the public. The new Congress can stop this disinformation campaign and listen to real scientists and the many Americans whose lives have been turned upside down by floods, droughts, wildfires, and hurricanes. We would recommend the new Congress consider inviting scientists doing groundbreaking research to unveil their findings at public hearings, thereby using the congressional megaphone to amplify public appreciation of profound risks we are facing.
Second, congressional oversight can reveal the influence of special interests at regulatory agencies like EPA and the Department of the Interior. It is highly unusual for agencies to seek to reverse environmental rules that are projected to save thousands of lives and produce health and economic benefits far in excess of their costs. Committees could examine internal agency records and interview agency officials to understand what is motivating these rollbacks.
A good example could be the Administration’s effort to substantially weaken EPA’s tailpipe standards for greenhouse gases. The proposed rule promises to increase pollution while hurting consumers and domestic manufacturing. In July, the New York Times reported that even the Acting EPA Administrator was concerned about moving forward with the rule because the agency could suffer “an embarrassing court loss.” Examining such a seemingly unjustifiable decision would make for textbook oversight.
Third, Congress can investigate what energy companies knew about the dangers of carbon dioxide emissions, just as two decades ago Chairman Waxman investigated the tobacco companies’ knowledge of the addictiveness of nicotine. An ample predicate for launching an investigation into what the major oil companies, like ExxonMobil, knew has been laid by the work of investigative journalists and state attorneys general. Such an investigation could also include companies and organizations that continue to spread climate disinformation to this day.
The power to investigate is one of Congress’ essential powers. As the Supreme Court recognized in a 1975 case, Eastland v. United States Serviceman’s Fund, “The scope of [Congress’] power of inquiry…is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” The nation — and the world — should hope that one of the oversight priorities of the newly empowered House Democrats will be the profound threat of global climate change.
*Philip S. Barnett is a co-founder of the nonprofit Co-Equal. Gregory Dotson is an Assistant Professor of Law at the University of Oregon School of Law. Barnett was the Staff Director of the House Oversight Committee in 2007, the last time the Democrats took control of the House of Representatives under a Republican President. Dotson was the Chief Environmental Counsel of the Committee.
