How We Can Hold Bureaucrats Accountable
Sen. Chuck Grassley /
These are the remarks as prepared for delivery by Sen. Chuck Grassley, R-Iowa, in a June 25 speech at The Heritage Foundation in Washington.
In 1980, I was elected to the U.S. Senate. During my early days in the Senate, I met a man who had a significant impact on my career. His name is Arthur Ernest Fitzgerald, but everybody calls him Ernie.
You’ve probably heard of him—Ernie’s reputation preceded him even way back then. In 1968, Ernie testified before Sen. William Proxmire’s Joint Economic Committee about the Air Force’s C-5 transport aircraft program. That testimony changed his life.
The C-5 aircraft was an important military priority. But it took longer and cost more than planned, and the government did not want anyone to know. Although he knew it might damage his career, Ernie told Congress that this prized program cost the taxpayers $2 billion more than the Pentagon would admit. $2 billion. That was in 1968. In today’s dollars that’s more than $14.5 billion.
Ernie’s audacity to “commit truth” earned him the absolute fury of the president of the United States. The infamous Nixon tapes revealed that the president himself ordered his subordinates to “Get rid of that SOB.” They did. And Ernie spent the next 14 years fighting for his professional life. Time and again he resisted the Pentagon’s never-ending efforts to sideline him and end his career.
From the fight they put up, you would have thought the Department of Defense was facing down a mortal enemy whenever we asked Ernie to come to Capitol Hill. I had to go to the Pentagon myself in 1985 to serve him a subpoena just so he could testify before my committee. Ernie’s work and life have greatly inspired this senator. His entire time in government, Ernie relentlessly pursued the facts and courageously told the truth. When he retired, I said that for him, Ernie’s work was about “keeping faith with the taxpayers.”
That’s what oversight is all about—keeping faith. Keeping faith with the taxpayers. Keeping faith with “We the People.” It means working as hard as you can to give the people confidence that their government either plays by the rules or is held accountable.
In just the last two weeks my committee has pulled out all the stops to shine a light on waste and misconduct in the other branches. Last week, we looked at the Department of Justice Inspector General’s findings of political bias and misconduct in law enforcement. The week before that we took testimony from witnesses who described the failures of the judiciary to address sexual harassment claims.
We can learn a lot about what oversight is and what it means from these efforts, and there will be a lot more material to study through this summer. But for now, I’d like to start with the basics.
When we enter elected office, we take an oath. The oath we take is a solemn promise to defend the constitution of the United States. That document is the source of our rule of law, and the guaranty of our liberty.
The constitution establishes a separation of governmental powers into three branches, over which the people are sovereign. To ensure that authority remains with the people, the constitution also diffuses power between and among the branches. We call that “checks and balances.” This structure wasn’t by mistake.
Madison and the other framers had a long history with unchecked ambition and undivided authority. They knew the natural tendency of those who had power to seek more, often at the expense of principle, sense and the general welfare. So, they designed a system where the same institution is never entrusted to write the law, interpret its meaning and enforce the consequences for its violations. And, each institution has tools to check the others.
By design, the system invites conflict, as each branch inquires of, negotiates with and grates against the others. In the words of James Madison, ambition works to counteract ambition. It’s this system that sustains the delicate balance between and among each branch of government. And it’s that balance that the framers believed would best secure respect for the rule of law and ensure accountability to the people.
Regretfully, today, this balance has shifted. Today we live under a government that the framers would not recognize. We have become a nation that is no longer governed by congressional action enforced by the president and interpreted by the courts.
Today, we are ruled more and more by excessive regulation and executive fiat. Worse, we’ve done little to prevent our system of separated powers from yielding itself to the sweeping authority of federal agencies, or what many call the administrative state. We cannot blame political ideology. Under Democrats and Republicans, the administrative state has only expanded. And it has grown at the expense of congressional authority and prestige.
We have sacrificed our constitutional mandate on the twin altars of “efficiency” and “expertise.”
We’ve moved from a government by and for the people, to a government by the bureaucrats and for the connected insiders.
I’m afraid we’re experiencing what James Madison warned about in Federalist 62, when he wrote about the dangers of churning out so many murky, burdensome rules. He warned about “the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people.”
The modern administrative state is a good deal for Congress, which can pass bills with lofty goals and take the credit while agencies sort out the details. It’s also a good deal for special interests and well-connected corporations, who can afford to sort through scores of regulations published each year.
But it’s a rotten deal for the American people. It’s a rotten deal for the farmers, small business owners and job creators across the country who are burdened by piles of regulations and left wondering where to turn for relief.
Consider this: In the 114th Congress, we enacted 329 bills into law. But during the same period, the Obama administration finalized more than twice as many rules and regulations. And that doesn’t count guidance documents and other forms of agency action.
By some estimates, regulations place a weight on the economy of nearly $2 trillion in compliance costs. Unfortunately, congress enables this. We authorize enormous, intrusive government programs and give agencies the money and the staff to run them. It’s no wonder there are more than 180,000 pages of administrative regulations.
I’m glad that President Trump has made cutting the regulatory burden one of his top priorities. But lasting reform is going to require some significant structural changes.
Think about this: More than 2 million people work for the federal government.
That does not include contractors or active duty military personnel. According to a 2015 study, the “actual size” of the government workforce is estimated at more than 9 million. And remember what I said about the tendency of those with power to seek more? That seems to be the primary purpose of an unelected bureaucrat. These folks fight tooth and nail to safeguard their pet programs, even when they don’t work.
I have seen evidence of agency leaders ordering subordinates to spend money they don’t need just so they can justify having it in the first place. Cleary, congress needs to exercise more scrutiny over the taxpayers’ money, not less.
Part of the problem is that we are not passing individual appropriations bills on a schedule like we’re supposed to. In fact, we’ve only met the deadlines set in the Congressional Budget Act four times since 1974. Instead we pass omnibus bills that obscure critical issues and make it difficult to cut the fat. Wasteful programs and projects just hum right along, sucking up valuable taxpayer dollars and providing little of value in return.
Despite all of this, you might still wonder if giving the agencies more leeway is such a bad thing. What’s the real harm in a few padded programs? But government bloat is not a victimless crime. The more we tip the constitutional scale, the less accountable the government will be to the people. This gradual surrender of authority to the executive piles on to the logistical challenges that congress already faces.
As I noted earlier, millions of people work in the executive branch. Two of them are elected by the people. And there are often many layers of folks between the elected executives and the unelected bureaucrats making the critical decisions. This means that there is a lot of distance between the everyday decision makers and the ultimate source of their authority—the people.
By contrast, legislators in Congress are directly accountable to the people. We receive their feedback during elections, and every day by email, by phone or in person. But for 535 elected members of Congress there are only about 16,000 supporting staffers. That means we have less than 17,000 people to counteract the ambition of more than 2 million in the executive branch.
Moreover, power in the legislative branch is diffused between two houses and 535 members. We have to work very hard to craft smart legislation and even harder to reach consensus. Meanwhile, unelected bureaucrats can make decisions that contradict or ignore the clear, hard-won intent of the Congress. That can happen through the regulatory process or just because some agency lawyer said so.
For example, the Government Accountability Office found that President Obama’s EPA engaged in unlawful “covert propaganda” through its aggressive use of social media to drum up support for its ”Waters of the U.S.” rule. In fact, EPA’s actions violated clear prohibitions that congress had put in place.
And in 2015, the Office of Legal Counsel singlehandedly overturned a critical provision in the Inspector General Act. It said that Congress did not mean what it said in that Act—that inspectors general should have access to all records they need to do their jobs. So Congress had to pass another law to say that we meant what we said the first time. The Inspector General Empowerment Act clarified that the inspectors general should have access to all records, notwithstanding any other law.
How do we hold these bureaucrats accountable to the rule of law, and to the people? How do we keep the constitutional scale from tipping too far? The answer is oversight.
Article I of the constitution vests all “legislative Powers . . . in a Congress of the United States.”
The Congress’s power to conduct investigations is inherent this grant of legislative power. The Supreme Court of the United States has long recognized this. In McGrain v. Daugherty it wrote that “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” For these reasons, the Supreme Court has also recognized that Congress’s power of inquiry is broad and fully enforceable.
The court in McGrain also noted that “mere requests for . . . information often are unavailing . . . so some means of compulsion are essential to obtain what is needed.” The court has even ruled that Congress can require testimony even when it may be relevant to another proceeding, like a court case.
Oversight isn’t just the responsibility of committees or their chairmen, although their leadership and expertise is important. Oversight is the responsibility of each individual member of Congress. Whether in the majority or minority, each member is a constitutional officer. He or she was elected to represent and cast votes in the interests of their constituents. And each member needs accurate information from the executive branch in order to make informed decisions on all sorts of matters.
Oversight takes many different forms. Individual members or committees send letters, request briefings and hold hearings. They might request documents or interviews. Most of the time, recipients comply with congressional oversight requests voluntarily. Usually, the member or committee is willing to discuss and negotiate the scope of a request and reach a reasonable accommodation.
In fact, that’s the way that members and committees prefer to work. The goal is to get the information, not put on a show. Of course, every nominee who comes into my office says they will answer my oversight requests in a timely fashion. But then they get confirmed, and they must get amnesia, because all too often I don’t hear back from them as quickly as I should.
When a witness does not comply, we have subpoenas. Of course, it’d be easier if the Democrats recognized when those were necessary. In any case, a committee often issues a subpoena only after it has attempted to get the information voluntarily and those efforts have failed. I think we are seeing that play out right now.
I’ve seen it before, too, during the “Fast and Furious” investigation. The executive branch stalled and hid behind bogus, vague privilege claims that had nothing to do with presidential communications. Eventually, a court ordered them to turn over documents to the House committee. They admitted that thousands of pages of withheld documents were never privileged at all!
In our investigation of political interference in the 2016 election, the agencies resisted providing some information because they claimed it threatened national security. Much of that information is now declassified, and it demonstrates those concerns were merely hot air.
Unfortunately, the executive branch does not always respect even a congressional subpoena. The documents it withheld from Congress during “Fast and Furious” were subject to a subpoena. The efforts to enforce it took seven years. Failure to provide the documents led the House to hold the former attorney general in contempt and take him to court. But it wasn’t until this year, when President Obama and his team had left office, that additional documents were finally provided.
It’s clear that Congress cannot blindly trust the executive branch to make and enforce rules or to comply with its requests for information. And it also cannot depend on the judicial branch to give full effect to its oversight authority. It takes too long, and the courts don’t always get it right. The legislative branch must step up to the plate and reassert its constitutional powers.
We need a package of rules and legislative changes that draw on Congress’s own strengths. We need to change the default from one of dodge and delay to democratic accountability. I’ve been working with my colleagues on proposals to do just that.
Meanwhile, as Congress seeks help from the other branches to do its job, whistleblowers are working hard to hold the government accountable. It’s our job to protect and empower them. You know, Ernie Fitzgerald was not the first whistleblower. Blowing the whistle on misconduct, and working to protect those who do, is as old as our republic.
In 1777, ten brave sailors aboard the warship “Warren” reported wrongdoing by their commanding officer. In reprisal, they were slapped with a criminal libel suit. On July 30, 1778, the Continental Congress shut down those shenanigans. It made clear that it’s the duty of citizens “in the service to the United States … to give the earliest information to Congress…. Of any misconduct, frauds or misdemeanors.”
Whistleblowing is a time-honored tradition in this country. It’s deeply patriotic and thoroughly American.
The framers knew that to hold onto their democracy, they would need, not just a well-formed structure, but also a virtuous citizenry. That’s where the whistleblowers come in. They keep the government honest. If we want to have the kind of government the framers envisioned, we have to protect them. Whistleblowers have to be able to share their message according to law, to the right people, in a way that keeps them and the rest of us safe. That means that they have to be able to report outside their agency, and to the congress, without fear of reprisal.
There’s still a lot of room for improvement in the whistleblower protection laws, although we have made much progress since I joined the congress. The better protections they have, the more likely whistleblowers will be to come forward. Believe me, we can’t do our constitutional duty of oversight without them.
The good news is that there are more folks like Ernie Fitzgerald out there. These whistleblowers know what’s really behind the agency talking points. They can tell you when Congress is being lied to, or only getting part of the story. They know where to find waste, fraud, and abuse. And these brave men and women are risking their reputations and their careers every day to “commit truth” and hold their government accountable.
By entrusting these truth-tellers to expose wrongdoing and corruption, we can help bring transparency and accountability to our institutions. By working with them to conduct rigorous oversight, we can restore the public trust in our government.
The whistleblowers are keeping faith with the taxpayers. The question is, are we?