CONGRESSIONAL OVERSIGHT OF REGULATORY AGENCIES: THE NEED TO STRIKE A BALANCE AND FOCUS ON PERFORMANCE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000200220001-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 68
• Document Creation Date: December 27, 2016
• Document Release Date: August 15, 2012
• Sequence Number: 1
• Content Type: REPORT

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AAPA
?National Academy of Public Administration
CONGRESSIONAL OVERSIGHT
OF REGULATORY AGENCIES:
THE NEED TO STRIKE A
BALANCE AND FOCUS ON
PERFORMANCE
Panel Members
Richard A. Wegman, Chair
Richard Bolling
Roger H. Davidson
Patricia S. Florestano
R. Scott Fosler
Herbert N. Jasper
Allen Schick
James L. Sundquist
Susan Tolchin
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The National Academy of Public
Administration
The National Academy was formed in 1967 as a
nonpartisan, collegial society to advance the
effectiveness of government at all levels through
sound management and counsel on the practical
implications of public policy. In its extensive work
program, the Academy has conducted studies or
performed services for state and local governments,
the judiciary and Congress, and nearly every major
department and agency in the executive branch.
Academy members are elected by their peers and
consist of practitioners and scholars of public
administration, notably present and former
members of Congress, cabinet officers;, state
government executives, city and county managers
and mayors, and business and independent sector
leaders with significant public service experience.
The products of Academy studies represent the
views of the participants and not the Academy as an
institution.
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National Academy of Public Administration
CONGRESSIONAL OVERSIGHT OF REGULATORY AGENCIES:
THE NEED TO STRIKE A BALANCE
AND FOCUS ON PERFORMANCE
Richard A. Wegman, Chair
Richard Bolling
Roger H. Davidson
Patricia S. Florestano
R. Scott Fosler
Herbert N. Jasper
Allen Schick
James L. Sundquist
Susan Tolchin
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Officers of the Academy
Joseph L. Fisher, Chairman of the Board
Robert Biller, Vice-Chairman
Ray Kline, President
Sheldon S. Cohen, Secretary
Anita Alpern, Treasurer
Academy Studies
Roger L. Sperry, Director
National Academy Panel on Congressional Oversight
Richard Wegman, Chair
Richard Bolling
Roger H. Davidson
Patricia S. Florestano
R. Scott Fosler
Herbert N. Jasper
Allen Schick
James L. Sundquist
Susan Tolchin
Project Staff
Gary C. Bryner, Project Director
Genevieve Cook, Research Assistant
Elaine L. Orr, Editor
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It is generally recognized that Congress is taking an increasingly active part
in the day-to-day operations of federal agencies, and its actions materially affect
the effectiveness of agency performance. This congressional involvement is
nowhere more visible than through its oversight role -- the subject of this report.
Congressional oversight of the Executive Branch should have as a primary
objective the efficient use of public resources and the effective achievement of
public purposes. This study examines how congressional oversight can be improved
in this regard and at the same time satisfy Congress' interest in closely monitoring
implementation of the laws it enacts. The oversight of selected regulatory
agencies provides an excellent focus for this examination.
This report addresses three questions: What constitutes effective
oversight? How does Congress go about its oversight activities? What can
Congress, the president, and administrative officials do to ensure that oversight is
less adversarial, does not stymie administration, and accommodates the needs of
both branches?
The fundamental conclusion of the report is that the key to effective
oversight is balance. Congress and the Executive Branch work best when the
relationship is neither excessively antagonistic nor overly cozy. Congress needs to
balance ad hoc oversight with independent, systematic, and long-term analysis of
laws and programs. Executive agencies need to recognize the legitimacy of
Congress' oversight role and work constructively to satisfy it. The
recommendations in this report are aimed at fostering more effective executive-
legislative relations.
I would like to thank the William & Flora Hewlett Foundation for providing
the resources which permitted the Academy to explore this important issue. With
the arrival of a new adminstration and Congress, executive-legislative relations
will take on renewed emphasis. It is our hope that the report will be of value at
both ends of Pennsylvania Avenue in making the oversight process work better.
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Preface .........................................................iii
Report Summary .................................................... vii
Chapter 1: Introduction ...............................................1
Chapter 2: Congressional Oversight of Regulatory Agencies ................ 7
Chapter 3: Examples of Congressional Oversight ........................ 19
Chapter 4: Improving Congressional Oversight of Regulatory
Agencies ................................................41
References .........................................................51
Appendices:
Biographies of Panel Members ....................................55
People Interviewed for the Study ..................................59
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Congressional oversight of government programs is an essential part of the
separation of powers concept embodied in the Constitution and it consumes large
amounts of congressional and agency time and resources. While there is inherent
tension in the process, friction is even greater during periods in which different
parties control the White House and one or both houses of Congress.
More than a decade has passed since Congress last conducted a
comprehensive examination of how it conducts oversight. Major changes have
occurred in the meantime. For example, in 1983, the Supreme Court ruled
unconstitutional the legislative veto, an important tool for monitoring regulatory
activity. Since then, Congress has sought other means to monitor agencies and to
ensure that administrative decision-making is consistent with legislative intent.
Purpose of the Academy Study
This report by a panel of the National Academy of Public Administration
discusses congressional oversight, especially as applied to federal regulatory
programs.
It examines the way Congress performs this role by focusing on three
questions:
What constitutes effective oversight?
How does Congress go about its oversight activities?
What can Congress, the president, and administrative officials do to
improve the way oversight takes place and to reduce the level of
conflict while accommodating the needs of both branches?
Consistent with the Academy's public management charter, the panel judged
oversight as "effective" if it contributed to better laws, improved program
performance, or enhanced compliance with existing laws. The report relies on
examples of the oversight of regulatory agencies, but many of the conclusions and
recommendations are relevant to the oversight of other kinds of agencies as well.
Oversight Problems and Limitations
While congressional oversight has led to major legislative initiatives, for
example, airline deregulation and environmental statutes, it is also criticized as
ad hoc and more geared to garnering media attention than providing guidance to
public managers. Oversight initiatives have limited impact on the executive
branch, since there is usually little follow-up on initial efforts. High congressional
staff turnover exacerbates the difficulties of acheiving a lasting impact.
Oversight has been particularly controversial for the newer "social"
regulatory agencies that deal with environmental, health, safety and consumer
regulation. These agencies have broad statutes whose provisions delegate much
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discretion to agencies to make basic policy choices. These statutes have not yet
matured into generally accepted standards for private conduct and agency
jurisdiction and powers. Thus, the political environment in which these agencies
function is often contentious, and complaints of over-regulation by the regulated
industries collide with demands by public interest groups for more regulation.
The report discusses examples of the two kinds of regulatory agencies and
their oversight experiences. The Environmental Protection Agency provides the
principal focus. The newness of environmental statutes, the uncertainty about
their consequences, the lack of consensus over priorities, and the great costs
imposed on the regulated industries all come together to make congressional-
agency relations in this case very difficult. Two other agencies--the Federal
Trade Commission and the Securities and Exchange Commission--provide
contrasting examples of oversight relationships which have existed over longer
periods.
The panel concluded that oversight, like any other activity, will fall short of
expectations. Nevertheless, Congress, the president, OMB, and regulatory
agencies can take a number of steps that hold promise for improvement.
Panel Recommendations
Central to all of the Academy panel's recommendations is the recognition
that oversight is more effective if there is bipartisan agreement on what oversight
is to be performed and the results to be achieved, and if agencies accept Congress
as a partner in the policy-making process.
The panel thus recommends the following:
1) Congress and the executive should seek to develop a balance in their
oversight relationships that avoids excessive antagonism, at the one extreme, or
capture at the other. Oversight relationships must be sufficiently adversarial to
-ensure that programs are scrutinized and evaluated, but must be sufficiently
accommodating to permit efficient and effective government. (See p. 43.)
2) Congress should determine whether there should be a regulatory review
process in OMB and, if so, prescribe by statute the scope, limits, and procedures
to be followed. OMB should ensure that members of Congress are able to monitor
its review of agencies so that misunderstandings and conflicts are minimized.
(See p. 44.)
3) Congress should ensure that regulatory statutes strike a balance
between detailed provisions and the need for administrative discretion. Statutes
should make the basic policy choices concerning the risks, benefits, and costs of
regulatory alternatives. (See p. 44.)
4) Congress should set performance goals for regulatory programs that
provide a better match between those goals and the resources likely to be
available for implementation. Similarly, the executive branch should suggest to
Congress ways of better matching goals and resources. (See p. 44.)
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5) Congress should increase oversight which evaluates the appropriateness
of regulatory statutes and the effectiveness of administrative procedures to
implement them. While, on occasion, ad hoc oversight may be the only feasible
approach, Congress needs to concentrate on a systematic, long-term analysis of
laws and programs. Ad hoc oversight should be integrated with this work. (See
p. 45.)
6) Each Congress should approve by resolution an oversight agenda of
comprehensive, rotating examinations of regulatory legislation and its
implementation. Agencies should be required to submit their analyses of the
appropriateness of relevant statutes, their capacity to carry out their mandates,
and any recommendations for amendments. (See p. 45.)
7) Congress should resist the use of the appropriations process to make
substantive changes in agencies' authority or structure and, instead, make such
changes through authorizing legislation. If, nonetheless, appropriations riders are
used, the appropriations and authorization committees should endeavor to agree
on any desirable amendments to the underlying statute before the next year's
appropriations are enacted. (See p. 46.)
8) Congress should revise its process for funding its committees' oversight
operations so that a significant proportion of resources is allocated in response to
committee proposals for systematic evaluation of specific statutes, agencies, and
programs. (See p. 46.)
9) In each committee, the chair and subcommittee chairs, ranking minority
members, and their top staffs should meet at the beginning of each session of
Congress to establish a formal oversight agenda, including a schedule of programs
to be reviewed, and the assignment of subcommittee and staff responsibilities.
(See p. 47.)
10) Chairs and ranking minority members of committees and subcommittees
that share jurisdiction over agencies should consult with each other and with the
leadership of each house at the beginning of each session to coordinate respective
agendas accordingly. (See p. 47.)
11) At the beginning of each Congress, committee and subcommittee chairs
and ranking minority members from both chambers should meet with the agency
heads under their jurisdiction to exchange views about those areas of agency
activity that should be the focus of specific oversight efforts or additional
congressional direction. The committee leadership should consult also with groups
affected by or otherwise interested in the relevant agencies. (See p. 47.)
12) Congress should encourage coordination of and follow-up to oversight
activities by requiring that: committees or subcommittees prepare a report for
each oversight project; agencies be required to inform the committee of actions
taken or planned on recommendations; and those reports and agency responses be
circulated to all relevant House and Senate committees. (See p. 47.)
13) Committees should encourage staff members to develop a thorough
understanding of the agencies for which they are responsible, establish more
executive-legislative staff exchange programs, and recruit individuals with
executive branch experience for staff positions. (See p. 48.)
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14) Committee and subcommittee chairs and ranking minority members
should meet more regularly with GAO officials to help establish the committee's
oversight agenda and coordinate the activities of the committee staff and the
GAO. (See p. 48.)
15) Congress should ensure that agencies engage in more thorough,
systematic, and comprehensive evaluations of the programs they administer by:
earmarking funds for program evaluation; providing in authorizing statutes
criteria by which to measure program effectiveness; and setting deadlines for
submitting evaluation reports to committees. (See p. 49.)
16) The next president should take steps to foster good communication and
cooperation by OMB and the regulatory agency officials with Congress in
monitoring the implementation of regulatory statutes, including emphasis on the
need for compliance with the spirit and letter of the laws. (See p. 50.)
17) Agencies themselves should ensure good cooperation and communication
with the Congress and full compliance with enabling statutes. They should make
suggestions for: areas of agency activity and statutes that would benefit from
oversight proceedings; needed statutory improvements; and priorities for
regulatory actions. Agencies should also seek budgets sufficient to achieve the
tasks Congress has delegated to them. (See p. 50.)
18) Agencies should keep congressional committees fully informed of all
major regulatory initiatives, including regulations, major enforcement actions, and
any significant departures from past administrative or regulatory practices. (See
p. 50.)
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Oversight is central to Congress' constitutional responsibilities, and it should
be effective in assuring that the executive branch implements laws as enacted by
Congress. Requiring agencies to defend and explain their actions to congressional
overseers can provide incentives for good administrative practices. Vigorous and
effective oversight can serve as an independent check on the implementation of
public policies and help mitigate the effects of the "iron triangles" of
congressional-agency-interest group influences and accommodations that are
inimical to open and pluralistic government.
Because it reaches nearly every government function and agency, oversight
consumes large amounts of congressional time and resources. One recent study
provides an overview of the level of oversight activity in Congress: in 1961, 8.2
percent (146 days) of the hearings and meetings of congressional committees
between January 1 and July 4 (excluding those of Appropriations, Rules,
Administration, and joint committees and reauthorization hearings of all
committees) were described as "review of administrative actions." The
percentage had increased only slightly to 9.1 percent (187 days) by 1971, but
jumped to 18.0 percent (459 days) in 1975 and 25.2 percent (587 days) in 1983
(Aberbach, forthcoming). These figures represent only part of the total oversight
effort of Congress; reauthorization hearings, informal meetings, letters and
telephone calls between congressional staff and agency personnel, and other
congressional activities constitute oversight as well.
In an era in which one or both houses of Congress may be controlled by a
party other than the president's, oversight becomes more adversarial, as members
of one party use it to score points against officials representing the other party.
Even in times when the same party controls the executive and legislative
branches, the separation of powers results in considerable tension between them
as they compete for influence in and control over agency activities.
The Supreme Court's 1983 ruling against the legislative veto (INS v. Chadha,
462 U.S. 919) limited Congress' use of one of its preferred oversight tools, and led
Congress to combine grants of discretionary authority with other means of holding
executive officials accountable for their actions. Other recent Supreme Court
decisions in separation of powers cases have called into question additional
compromises which Congress and the executive have developed for sharing power.
The Court struck down in 1986 the Gramm-Rudman-Hollings Deficit
Reduction Act's trigger mechanism, arguing that the Constitution "does not
contemplate an active role for Congress in the supervision of officers charged
with the execution of the laws it enacts" and that "once Congress makes its choice
in enacting legislation, its participation ends" (Bowsher v. Synar, 106 S. Ct.
3181). The Court rejected congressional participation in appointing officials to
the Federal Election Commission in 1976 (Buckley v. Valeo, 424 U.S. 1), and there
are pending cases challenging the constitutionality of independent regulatory
commissions and guidelines for criminal sentences formulated by the U.S.
Sentencing Commission.
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Not all challenges to congressional oversight take place in the courtroom.
Since the beginning of the Reagan administration, some members of Congress
have charged that certain agency heads have sought to depart from existing
interpretations of statutory authority and impose new public policy directions
(U.S. House of Representatives, Committee on Energy and Commerce, 1985; U.S.
Senate, Committee on Governmental Affairs, 1986). Presidential appointees such
as Anne Burford and James Watt were seen as particularly visible examples of
interpreting executive authority in ways that conflicted with congressional
expectations.
Differing congressional/executive perspectives were also reflected in
hearings such as those on the Environmental Protection Agency's implementation
of the Superfund program in the early 1980s, covert arms transactions with Iran
and secret military assistance to the Nicaraguan opposition.
Regulation is a major element of the federal government's policy agenda.
During the 1960s and 1970s, Congress and the executive produced a burst of
regulatory legislation even greater than that of the early years of the New Deal.
While during the 1930s Congress created 42 major regulatory agencies, in the
1960s, 53 were formed. Between 1970 and 1980, 130 major regulatory laws were
enacted, offset in part by some deregulatory statutes, notably in transportation.
The number of pages in the Federal Register, an imprecise but nevertheless useful
indicator of regulatory activity, grew from 20,032 in 1970 to 87,012 in 1980.
These new regulatory initiatives shared several important characteristics:
they were usually based on broad, expansive objectives; unlike many earlier
regulatory programs, they extended well beyond specific industries; and they were
based on broad delegations of power to regulatory agencies that required
important policy choices to be made through administrative rule making.
Administrative agencies were given jurisdiction over virtually all industrial and
commercial activity through statutes such as: the Clean Air Act and its
amendments; the Magnuson-Moss Amendments to the Federal Trade Act; and the
Occupational Safety and Health Act. While the level of activity has moderated
somewhat in the 1980s-few new regulatory statutes have been enacted, some
deregulatory laws have been passed, the budgets of some regulatory agencies have
been cut, and the number of pages in the Federal Register fell to 47,418 in 1986--
regulation continues to be a primary function of government. Environmental,
health, and safety regulation enjoys strong and widespread public support.
Federal regulations that affect commercial and industrial practices and
processes have major impacts on the regulated firms and on the economy as a
whole. Studies over the last decade have directed attention to the aggregate
costs of regulation. Murray Weidenbaum's 1978 report to the Joint Economic
Subcommittee on Growth and Stabilization concluded that regulations imposed
$100 billion annually in compliance costs (although that figure has been widely
disputed), inhibited innovation, and impeded economic growth and capital
accumulation. Litan and Nordhaus (1983) calculated the costs of compliance with
EPA regulations between 1975 and 1980 at $15.5 to $33.2 billion and those issued
by OSHA at $15.2 to $40.3 billion. The Business Roundtable's study in 1977
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identified $2.6 billion in direct spending by 20 industries as the consequence of
regulations issued by six federal agencies. However, the benefits of regulations
are also significant, albeit often more difficult to quantify than the costs. A 1980
study at MIT, which focused on regulations issued by six federal agencies,
estimated that air pollution regulations saved from $5 billion to $58 billion
annually, that reductions in water pollution produced an annual benefit of $9
billion, and that occupational safety and health regulations prevented 350 worker
deaths each year (Congressional Quarterly, 1985, 29-30).
Many regulatory statutes are written in broad and vague language, while
others are specific. In both cases, the jurisdiction, authority and tasks delegated
to regulatory agencies often greatly exceed the resources provided. Agency
officials must make basic choices when setting priorities, balancing competing
goals of economic growth and regulatory protection, and regulating complex and
poorly understood phenomena.
Regulatory agencies provide a useful focus to examine congressional
oversight. Many regulatory programs are new, these areas of law and policy are
evolving, and many activities are embroiled in controversy.
Some of this controversy centers in part around the Office of Management
and Budget's (OMB's) control over agency budget submissions, and its pursuit of
reduced domestic spending. Also, a recent study by a panel of the National
Academy of Public Administration, entitled Presidential Management of
Rulemaking in Regulatory Agencies (1987), examined the development of OMB's
regulatory review program and recommended that Congress provide by law the
basic elements of such a process. The OMB now, without specific statutory
guidance, approves agencies' agendas of significant regulatory actions and all
proposed and final regulations, except those of the independent regulatory
commissions. In tandem with the appointment of regulatory agency officials who
have resisted regulatory initiatives, this has reduced the number of regulations
issued, weakened some existing regulations, and strengthened the president's
power to direct regulatory agency activities.
Under procedures negotiated between key members of Congress and OMB in
the summer of 1986, OMB agreed to make available to Congress and others copies
of draft regulations and draft regulatory programs submitted by agencies for
OMB's review. This includes: written materials from people outside the federal
government concerning regulations under review at OMB as well as a list of all
meetings and communications with them; written materials exchanged between
OMB and regulatory agencies; and a monthly list of all draft and final regulations
for which OMB has completed review and the length of time each review took.
However, critics argue that this agreement has not been implemented.
Regulatory agencies pose some of the most difficult challenges to
administration and hence to congressional oversight because they require
administrators, often in an atmosphere of uncertainty, to balance the goals of
efficiency and effectiveness with those of due process and protection of the rights
of those affected by regulations. The loss of the legislative veto, which permitted
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members of Congress to review and reject regulations proposed by some agencies,
has renewed congressional interest in other ways of responding to regulations that
are important to members and their constituents.
Structural decisions made by Congress, such as whether programs are placed
within executive departments and other single-headed agencies or assigned to
independent commissions, affect the kinds of political control to which regulatory
activities will be subjected. In the past, Congress has given the president
oversight and control powers, including the authority to reorganize executive
agencies (subject to legislative veto) and control agency budgetary requests and
paperwork burdens through OMB. Recent presidents have also taken the initiative
to issue executive orders that strengthened and expanded OMB's role and imposed
cost-benefit and other economic-based requirements on decision making in
executive branch agencies other than the independent regulatory commissions.
Congress has sought to respond to the president's increased power to monitor
and intervene in regulatory agencies by creating for itself and its support agencies
an elaborate set of procedures and mechanisms for overseeing the administrative
process. The loss of the legislative veto, the complexity and dominance of the
budget process in Congress' workload, the willingness of executive branch officials
to challenge legislative expectations and priorities, and the great amount of
legislation that is in place and needs to be periodically reviewed have all made the
search for means of more effective oversight an increasingly important challenge
confronting Congress.
While many of the elements of oversight are applicable to all agencies and
programs, a comprehensive, across-the-board examination of congressional
oversight was beyond the resources available for this study. The panel therefore
chose to concentrate on examples drawn primarily from oversight of regulatory
agencies. The Academy had performed an earlier study on presidential
management of rule making (NAPA, 1987), which provided background. The
variety of regulatory agencies--some of them multi-member agencies and
commissions and some headed by single administrators, some independent and
some located in cabinet departments--raises many of the most important issues
concerning political accountability and control that are at the heart of oversight.
Thus many of the report's conclusions and recommendations will be relevant to
oversight of other kinds of agencies.
This report examines the way Congress goes about some of its oversight
activities by focusing on three questions: What constitutes effective oversight?
How does Congress go about its oversight activities? What can Congress, the
president, and administrative officials do to improve the way oversight takes
place and to reduce the level of conflict while accommodating the needs of both
branches? Consistent with the Academy's public management charter, the panel
judged oversight as "effective" if it contributed to better laws, improved program
performance, or enhanced compliance with existing laws. The report seeks to
address the concerns of Congress, the White House, and regulatory agencies.
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Chapter two discusses how oversight of regulatory agencies takes place and
reviews recent congressional efforts to improve oversight. Chapter three discusses
several examples of congressional/regulatory agency relationships. Chapter four
offers a number of recommendations for consideration by the Congress, the
president, the OMB, and the regulatory agencies themselves.
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CONGRESSIONAL OVERSIGHT OF REGULATORY AGENCIES
There is little agreement about how congressional oversight should be
defined. Congress defined oversight in the Legislative Reorganization Act of 1946
(60 Stat. 832) as "continuous watchfulness of the execution by the administrative
agencies . . . of any laws." Rule X(b)(1), adopted by the House of Representatives
in 1974, charges each committee with the responsibility to:
. review and study, on a continuing basis, the application,
administration, execution, and effectiveness of [the] laws ... within
the jurisdiction of that committee and the organization and operation
of the Federal agencies having responsibilities in or for the
administration and execution thereof, in order to determine whether
such laws and the programs thereunder are being implemented and
carried out in accordance with the intent of the Congress and
whether such programs should be continued, curtailed, or eliminated.
While Congress has formally defined oversight rather narrowly as the monitoring
of the execution of the laws, some members of Congress view their oversight
activities much more broadly, believing they should reach virtually every area of
economic, political and social activity.
Oversight permeates the activities of Congress. It is central to developing
the budget, enacting legislation, confirming presidential appointees and serving
constituents. It can even be an element of the impeachment process. In general,
most oversight activity serves one or more of seven broad purposes. First,
oversight seeks to assure that the intent of Congress is followed. In theory,
oversight objectively examines the statutes under which agencies are acting and
compares the actions taken by the agency with those statutory provisions.
Although overseers may appeal to the original intent of the legislation, oversight
may also be triggered by a concern with how well the agency is responding to
current needs and problems. As one observer put it:
What really produces the legislator's complaint . . . is not that the
agency is flouting the intent of the original law, but that it is
frustrating the desires of the present Congress. . The sheer
volume of oversight activity has increased so much in recent years,
because the number of laws that confer broadly discretionary
authority upon the agencies have increased in recent years.
[Congress has] told agencies to prevent unreasonable risk of injury in
the workplace, to prevent excessive pollution, to assure safe cars, all
sorts of things that involve judgment, all sorts of things as to which
there are no right or wrong answers. And when you write laws giving
that kind of discretion to the agencies, inviting them to make
political judgments, of course Congress wants to be in on the act, in
guiding the agencies toward those political judgments.1
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Second, oversight can assure that programs are implemented efficiently and
that administrative waste, fraud, and abuse are exposed. Estimates of waste and
inefficiency by the General Accounting Office, President Reagan's Private Sector
Survey on Cost Control (also known as the "Grace Commission" after its chairman,
J. Peter Grace) and a variety of other studies have stimulated congressional
oversight of federal agencies.
A third purpose of oversight is to collect information to be used in
reauthorizing or amending the statutes under which agencies operate. This may
take place as part of the annual reauthorization or may be aimed at particular
problems and controversies. One member of Congress emphasized the importance
of oversight in the legislative process:
You cannot legislate well without good preparation, and good
preparation is just simply good legislative oversight.... You cannot
legislate well without getting a proper basis in fact. The programs
and their conduct, the way the law works, the amount of money, the
kind of projects undertaken under broad statutory authority all have
to be scrutinized to ascertain what is going to be done.
Fourth, oversight may also be designed to evaluate the effectiveness of an
agency's pursuit of a particular policy and to consider ways to increase the
agency's ability to accomplish its tasks. Program evaluation has increasingly
characterized the kind of oversight done by the General Accounting Office, and is
also done by committee and subcommittee staffs.
Fifth, oversight may be used to protect congressional prerogatives and
powers against executive branch usurpation. Congressional staff members
interviewed as part of this study argued that oversight is an essential means for
members of Congress to ensure that agencies consult with them before embarking
on major regulatory initiatives or changing established policies.
Sixth, oversight activities may be used by members of Congress to advocate
programs of interest to them. Committee members and staff are generally drawn
to assignments that complement their policy interests. Tension arises when
members of Congress and agency officials differ significantly over how statutes
should be implemented. Political appointees who are chosen because of their
commitment to a president's promise to reduce regulatory burdens, for example,
are bound to clash with congressional champions of vigorous regulatory
intervention.
A final purpose of oversight is to permit members of Congress to respond to
perceived criticisms, crises, and complaints about agencies. Members focus
political attention and public scrutiny on administrative actions to reverse
1. . Quotations in this and subsequent chapters, unless otherwise attributed are
from interviews undertaken during this study (with people named in the
appendix) and other unpublished material. Most of the interviews were
conducted with the understanding that the interviewees' comments would
not be directly attributed.
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directions that may be seen as unpopular, misguided, or illegal. They may serve
the public interest, as they see it, and their individual political interests as well.
To fulfill its oversight responsibilities, Congress has a powerful array of
tools to collect information from agencies and investigate agency activity.
Congress can gather data through hearings, from the over 2,000 executive branch
reports annually required by law (U.S. Congress, 1986), through informal meetings
with agency staffs, written inquiries, GAO reports, media investigations,
constituent complaints and casework funneled through members' personal staffs.
These tools are used in the congressional processes discussed in the following
sections--authorization, appropriations, auditing, general oversight and
investigation, confirmations and impeachment.
The authorization process provides the traditional means for members of
Congress to review and redirect the implementation of the laws they pass. The
level of scrutiny given agencies and programs in reauthorization proceedings
varies. Some regulatory agencies must undergo annual reauthorizations while
others enjoy multi-year or permanent authorization.
The Environmental Protection Agency (except for its research and
development programs which require annual reauthorization), the Occupational
Safety and Health Administration, and the National Labor Relations Board operate
under a permanent authorization. The Federal Communications Commission, the
Securities and Exchange Commission, the Federal Trade Commission, the
Consumer Product Safety Commission, and the Federal Communications
Commission (FCC) are reauthorized for two to four years (U.S. Senate, 1977).
The Nuclear Regulatory Commission and the International Trade Commission are
reauthorized annually. Some agencies, such as the FCC, enjoyed permanent
authorizations until the early 1980s, when Congress moved to a periodic
authorization to increase its ability to monitor commission activities and to check
the independence of agency heads unsympathetic to the intent of Congress
(LeLoup, 1986; Starobin, 1988). In reaction to the shorter authorization periods,
some members of Congress have lately been pushing for longer reauthorization
periods to help reduce the congressional workload (Haas, 1988).
The Appropriations Process
To a certain extent, the appropriations process provides a parallel track for
oversight with authorizing legislation. Both can provide guidance on actions
agencies must or must not take (Schick, 1986, 89-90). Authorizing legislation
often has not been enacted in recent years, and Congress has increasingly used the
appropriations process to respond to issues discovered through oversight. This
response takes the form of riders attached to appropriations bills, many of which
address policy issues.
Appropriations subcommittees have small staffs and are responsible for a
variety of concerns, limiting their ability to address many substantive areas.
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Riders are rarely the product of thorough hearings and committee deliberations.
In addition, riders that affect one aspect of an agency's jurisdiction, authority, and
activity, may not be coordinated and integrated with statutes affecting other
aspects that are written by authorizing committees. In general, the authorizing
committees have little input to the riders. In fact, as more appropriations
legislation fails to gain passage by the start of the fiscal year, appropriations bills
and the riders attached to them are lumped into continuing resolutions that are
rarely vetoed.
Reduced funding levels in appropriations legislation can be among the most
visible consequence of congressional oversight. Yet, in one sense, appropriations
bills have less of an oversight implication than in the past. Because the budget
has put downward pressure on agency budgets, appropriations subcommittees can
no longer effectively threaten additional cuts if an agency does not meet their
expectations. In many instances, funding levels are already below those desired by
some members of Congress, so the threat of further cuts is self-defeating.
Within the regulatory arena, the appropriations process is an even less
effective oversight tool than it can be for administrative agencies. This is
because the regulatory agency operating budget represents only a small portion of
the cost of regulation--most cost is borne by the industries and state and local
governments regulated. Thus, the extent to which regulatory statutes solve the
problems they are meant to address is less a function of an agency's budget than
other factors that may not be scrutinized in the appropriations review.
Auditing and Evaluation
The final step in the budget process, auditing and evaluation, is an important
component of oversight. The General Accounting Office (GAO) reviews selected
agencies and programs to ensure that agency activities and expenditures are
consistent with congressional mandates. These reviews usually take up to a year
and provide Congress with detailed information on the administration of the
programs and agencies it has authorized. GAO often tailors its work to the
reauthorization schedule.for major legislation.
The GAO is a major arm of Congress in overseeing the executive branch. Its
auditing and investigative responsibilities were originally defined in the Budget
and Accounting Act of 1921. The GAO reviews agencies and programs on the
initiative of the Comptroller General, at the request of any committee of
Congress with jurisdiction over a program or activity, or by request of a member
of either House of Congress. In fiscal year 1987, the GAO issued 672 reports to
members of Congress and committees and 95 reports to agencies. Over 80
percent of its audits, evaluations, and investigations were requested by Congress.
Of the 916 recommendations GAO made to Congress in fiscal year 1987, 496
suggested changes to improve program effectiveness; 79 dealt with financial
management; 78 were aimed at reducing costs or increasing revenues; 72
addressed congressional oversight and legislative concerns; and 191 covered other
matters.
GAO officials testified 161 times before congressional committees and
issued some 590 legal opinions and decisions. In addition to this formal
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interaction, GAO staff also present informal briefings to members and staff.
There is also a great deal of discussion between GAO staff, committee staff and,
less often, members of Congress as to oversight agendas and specific projects.
GAO can lend its staff to committees and subcommittees. In fiscal year 1987,
more than 100 GAO employees were assigned to work directly with committees
and subcommittees.
While some 80 percent of the GAO's work is in response to direct
congressional requests, the GAO has some opportunity to independently evaluate
government programs. Its general management reviews, for example, are
designed to study the organization and operation of entire departments and
agencies and produce recommendations for improving management (U.S. General
Accounting Office, 1987).
The GAO does a great deal of program evaluation. Under the 1974
Congressional Budget and Impoundment Control Act, GAO is also required to
report to Congress on the extent of federal agency program evaluation
activities. The GAO found, between 1980 and 1984, a 26 percent decline in the
number of units in agencies and departments that engaged in program evaluation
efforts. Spending for these evaluations decreased by 37 percent in constant
dollars. The studies done were more likely to be "low-cost, short-turn-around,
internal studies and nontechnical reports rather than larger, externally conducted,
and more technical studies." Evaluations, the GAO reported, "have become less
readily available to the Congress and the public," an indication that evaluation is
becoming more limited to an internal function in the executive branch. According
to OMB's comments on the GAO's draft report, program evaluation is "intended
primarily to inform agency decision makers, not the public and Congress" (U.S.
General Accounting Office, 1987).
General Oversight and Investigations
Legislative committees also engage in oversight actions that are not directly
part of a reauthorization process, but give the committees general information
about agencies' activities and provide an opportunity to redirect agency activity.
Committees call hearings, ask for briefings by agency officials, write letters and
make phone calls, and commission special studies by the GAO and outside
contractors. Much of this review takes place after the agency has taken action
that arouses, some controversy. Because congressional committees lack the staff
to monitor agency activity comprehensively, they rely largely on criticisms and
concerns raised by affected parties and others to identify areas for oversight
investigation (McCubbins and Schwartz, 1984).
In the House, most committees have established oversight subcommittees to
oversee the agencies and programs within the committees' jurisdiction. In theory,
these subcommittees are tied less closely to the agencies and programs and are
less likely to be advocates of the activity they oversee than are their legislative
subcommittee counterparts. In the Senate, only a few committees have
established investigations subcommittees. The House Government Operations and
Senate Governmental Affairs committees have a government-wide responsibility
to oversee executive branch activities as well as to examine broad issues of
executive management, intergovernmental relations, and government
organization. These committees have powerful legal tools to extract information,
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as do other committees, including taking depositions and issuing subpoenas. Their
power to gain information is somewhat limited in areas of national security and
other areas where presidents claim executive privilege, but court decisions have
placed significant constraints on such presidential prerogatives and claims.
Some review takes place as part of administrative decision making. Under
some statutes, agencies must submit proposed actions, such as the reprogramming
of appropriated funds, to congressional committees for review. So-called "report-
and-wait" provisions require that proposed rules be submitted to committees and
not go into effect until a specified date, usually 30 or 60 days, after the
congressional notification; the regulation goes into effect unless legislation is
enacted rejecting the initiative. Or the provision may require that Congress pass
a joint resolution, to be signed by the president, before the proposed rule goes into
effect. These are as close as Congress may come to providing a legislative veto
since the Supreme Court's Chadha ruling.
Confirmation and Impeachment
The confirmation process has been used by Senate committees to collect
information concerning agency activities. Confirmation hearings also provide an
opportunity for members to instruct, warn, cajole, and otherwise direct agency
activity. Members often extract commitments and promises concerning agency
practices and activities from those seeking confirmation, but it may be difficult
for committees to ensure compliance with those informal agreements after the
nominee is confirmed. Although impeachment and the ensuing Senate trial rarely
occur, the threat of impeachment occasionally can serve as a powerful source of
congressional influence over unlawful executive actions.
Incentives for episodic, ad hoc oversight, are generally far stronger than
those that encourage comprehensive, systematic evaluation of statutes and
programs. A number of members of Congress have used oversight to familiarize
and identify themselves with particular issues in ways that have produced political
benefits and positive results. One member of Congress observed that "oversight
pays off as no other device yet fashioned.... [Oversight] can be good politics. It
can produce some very favorable news and enhance the reputation of-the member.
... It produced a lot of what I would call very, very spendable political capital."
Oversight hearings and investigations have also resulted in significant
administrative reforms.
Oversight closely tied to casework can also be used for electoral
advantage. Investigations can be reported in members' newsletters to illustrate
their roles as guardians of the public treasury and ombudsmen for the interests of
constituents. Constituent support can be cultivated by responding to complaints
about specific governmental decisions. Oversight also provides an opportunity for
supporters of agencies and programs to defend them, to refocus attention on their
accomplishments and their importance, and to protect them from pressure by the
White House and the OMB.
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Congress uses its oversight powers to respond to problems it identifies.
Statutes directly reversing agency actions are sometimes enacted; committee
reports which accompany legislation give guidance to agencies; letters written by
subcommittee chairs are not easily disregarded by agencies. Congress can also
use threats of embarrassing hearings or disclosure to the media to ensure that
agencies are sensitive to members' concerns and interests. Congress can lobby the
White House to help pressure uncooperative agencies. It can mandate expedited
judicial review of agency decisions, and provide for class action suits and awarding
of attorney fees to facilitate the use of the judicial process by members of
Congress and others to scrutinize agency activity.
Congress has, through oversight, been able to join with others in pressuring
the president to replace regulatory agency officials who differed with
congressional concerns and priorities and, in some cases, sought to depart from
both the spirit and the letter of the laws. Replacement of virtually all of the
political appointees at the Environmental Protection Agency in 1982 and 1983 is
one of the clearest manifestations of the results of oversight. Oversight has led
to an increase in the amount of information available concerning OMB's regulatory
review process. Agency officials regularly acknowledge that their actions are
constrained by the possibility of being hauled up by Congress.
Major legislative initiatives have resulted from oversight. Airline
deregulation and environmental legislation, for example, as well as other
important statutes, were advanced substantially by oversight investigations,
studies, and hearings. Oversight is an essential ingredient in the process of
reauthorizing legislation. As one observer has put it, however:
.. . the kind of oversight that is careful program analysis, that can
lead to clearer instructions to agencies concerning the choices they
are to make, and that can lead to better laws, is much harder to do,
and requires coalition-building--it is really an essential part of the
legislative process, and not everybody is good at the legislative
process.
Presidents and other executive branch officials have long criticized what
they consider to be excessive congressional involvement in the "details of
administration" of regulatory and other agencies. One hundred years ago
Woodrow Wilson argued that Congress "has entered more and more into the details
of administration until it has virtually taken into its own all the substantial powers
of government" (Wilson, 1887). Wilson's complaints have been echoed by most of
his successors: detailed legislative language that leaves little room for
administrative discretion; appropriations riders that prohibit certain actions;
statute-imposed deadlines for administrative actions that inhibit executive
flexibility and priority setting; and requirements for detailed, time-consuming
reports that must be filed annually with congressional committees.
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Executive branch officials also complain of a recent explosion in the amount
of time top agency officials spend on Capitol Hill and the number of requests for
information they receive from Congress. Some agency heads maintain that the
time they spend responding leaves little time to run their agencies. They charge
that members of Congress approach their oversight responsibility in an ad hoc
fashion, reacting to scandals and seeking press attention, rather than providing
clear guidance to public managers.
Members of Congress. have also been among the most outspoken critics of
oversight. In areas where congressional subcommittees, interest groups, and
agencies have developed close, mutually advantageous relationships, oversight has
been criticized for being insufficiently rigorous. Members of Congress usually
operate from a perspective of advocacy for the programs they oversee and often
have little interest in investigating and criticizing agencies in a way that might
jeopardize funding and other support for them. These subsystems of government
are unable themselves to provide careful, critical analyses of the appropriateness
of policies and the effectiveness of their implementation (Dodd and Schott, 1979).
Oversight has also been criticized for failing to take a systematic approach
to executive branch programs; for being dominated by short-run, media-
dramatized problems; and for seeking immediate political publicity and
attention. Oversight often fails to have a real impact on the executive branch,
since there is usually little follow-up on initial efforts, and agencies know that
they will likely not be required to respond to congressional criticisms. The
oversight of authorizing committees is described as being ad hoc and spotty, and
rarely comprehensive. The review of agencies in the appropriations process is
regularized, but is not sufficiently thorough to provide effective review (U.S.
Senate, 1977).
Oversight by the House Government Operations and Senate Governmental
Affairs committees is not usually integrated with that done elsewhere, and the
lessons learned by these committees are often lost. These two committees cannot
respond to their findings by initiating alternative statutes for issues under the
jurisdiction of other committees.
Congress, it is argued, lacks the information it needs from the executive
branch to evaluate adequately the implementation of the laws it passes. Agencies
resist providing information to Congress because it takes time and resources to
compile the information which might be embarrassing or which might be used
against them. And even when information is forthcoming, Congress may not have
the institutional capability to process it into practical, usable form.
High staff turnover and lack of staff experience on Capitol Hill in many of
the complex and technical areas exacerbate the difficulties of oversight. The
Congressional Management Foundation's study indicated that two out of three
legislative assistants have held their positions for less than two years and that the
average tenure in major congressional positions ranges from 1.7 years for
receptionists to 5.5 years for administrative assistants (Pianin, 1987).
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RESPONSES TO CRITICISMS OF CONGRESSIONAL OVERSIGHT
Congress has tried, in various ways and in different time periods, to respond
to these criticisms and shortcomings. Oversight of regulatory agencies has not
been singled out; attention here focuses on oversight in general.
In the 1930s and 1940s, the target of reformers in Congress was the
fragmented, uncoordinated nature of committee government and the lack of
effective oversight. Members were criticized for failing to investigate the
programs under their jurisdictions because they were co-opted by the close
relationships they had developed with agencies and interest groups. Congress,
critics charged, had failed to provide adequate resources for oversight. The
fragmented structure of oversight meant agencies could protect their autonomy
by finding one sympathetic committee to protect them against attacks by
another. The power of the executive branch, it was argued, had been strengthened
at the expense of congressional power, and institutional prerogatives had been
sacrificed for the pursuit of the individual influence and power of members
(Galloway, 1946).
The Legislative Reorganization Act of 1946 (60 Stat. 832) was enacted as a
remedy to these and other shortcomings. In response to the recommendations of a
Joint Committee on Congressional Organization, the act reduced the number of
committees and the number of committees members could sit on, and created a
more nearly parallel structure of committee jurisdiction in the House and
Senate. Committees were charged with "continuous watchfulness" over the
administrative agencies for which they were responsible. Oversight authority was
to be shared among: the appropriations committees, which reviewed budget
requests and provided for financial control of agencies; the expenditures (later
government operations and governmental affairs) committees, which examined
agency structures and procedures; and the authorization committees, which
monitor the program operations and make statutory revisions.
These reforms, critics charged, did not effect a major change in
congressional operations. Representative Estes Kefauver described them as
largely "patchwork, improvisation, and tinkering" (Burns, 1949, 134). They did not
strengthen the power of congressional leadership at the expense of committee
autonomy, but assured that real power remained in the hands of committee
chairs. As the power of committee chairs grew in the 1950s and 1960s, and as it
rested largely in the hands of conservative Southern Democrats who rose to
chairmanships by virtue of seniority, pressure for decentralizing congressional
power increased. Democratization of the Congress followed, particularly in the
House, resulting in decentralizing power to a growing number of subcommittees,
where hearings and other congressional work were concentrated (Dodd and Schott,
1979).
The Legislative Reorganization Act of 1970 (84 Stat. 1156) required that
each House committee issue a biennial report on its oversight activities, and
described oversight as legislative "review" rather than "continuous
watchfulness." Congressional dissatisfaction with its limited ability to control the
actions of administrative agencies was fueled by conflict and distrust between
Congress and the Nixon administration concerning the Vietnam war and its
extension into Laos and Cambodia, the impoundments, executive branch
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reorganization, executive privilege, and Watergate. Congress took a number of
steps to increase its influence on the executive branch, including budget and war
powers legislation.
Dissatisfaction with the committee structure in 1973 led to the creation of
special committees to examine the organization and operation of Congress. In the
House, the Select Committee on Committees, popularly known as the Bolling
Committee, proposed a major restructuring of committee jurisdictions that was
largely rejected by the Democratic caucus (Davidson and Oleszek, 1977). The
Senate was more responsive to change, eventually eliminating three committees
and some 35 subcommittees (Sundquist, 1981, 430).
The Bolling Committee emphasized the House's "general and widespread"
dissatisfaction with oversight. It proposed three ways to strengthen oversight: 1)
establish oversight subcommittees for all standing committees (except
Appropriations); 2) define the "program review priorities of the House" by
developing an oversight report for each Congress, to be prepared by the
Government Operations Committee; and 3) improve the coordination of oversight
activities among the committees. Oversight subcommittees were proposed as a
way to "complement and supplement the review that has traditionally been the
responsibility of every standing committee." They were also to engage in
"foresight," the "systematic, long-range, and integrated study of our principal
future national problems," and to assess and compare the "costs, benefits, and
effects of the various options, including present programs" for responding to these
problems (U.S. House of Representatives, 1974, 62-64).
The Committee also deliberated a number of options for an oversight report.
One set of proposals would have required that the Government Operations
Committee, based on testimony from the chair and minority leader of each
standing committee, outline and set priorities for an oversight agenda for the
House. In consultation with the House leadership, the Government Operations
committee was then to submit to the House an oversight agenda with deadlines for
completing and reporting oversight studies.
The Bolling Committee also considered requiring House committees to
submit a list of their legislative and oversight priorities to the Speaker, and that
the House pass a resolution at the beginning of each Congress noting the dates by
which the reviews were to be completed. No funds would be provided for any
standing committee until its oversight report and agenda were approved by the
House. The Committee opted, however, merely to require that the Government
Operations Committee submit to the House a report that: reviewed the oversight
plans of each committee; recommended ways to coordinate related activities
among the different committees; and suggested agencies and programs that should
be given priority for oversight, so that oversight would be more systematic and
ensure that scarce resources were effectively expended.
The Committee proposed that coordination among committees be enhanced
by: requiring that authorizing and appropriations committees "include in their
committee reports on legislation the oversight findings and recommendations of
the Committee on Government Operations and their own oversight
subcommittees;" permitting the Government Operations Committee to offer
amendments on the floor affecting agencies and programs it had investigated; and
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empowering the Committee to investigate any matter even if another committee
were conducting a similar inquiry. Six committees, including Armed Services,
Education and Labor, and Foreign Affairs, were to be given "special oversight"
authority to cross committee jurisdictions in investigating agencies and programs.
The House adopted many of the oversight-related recommendations of the
Bolling Committee. Until 1987, when the practice was discontinued, the
Government Operations Committee compiled the oversight agendas of the
standing committees, but the agendas were not used by the House leadership to
establish oversight priorities or settle jurisdictional disputes between competing
committees.
In 1977, the Senate Government Operations (later renamed Governmental
Affairs) Committee issued a major report on federal regulatory agencies that gave
particular attention to oversight. The study found that oversight was a "low
priority for most Members of Congress," that there was "little active coordination
between committees for oversight," and that most committees lacked staff with
expertise in regulatory issues. The appropriations process was viewed as the most
"potent form of oversight in those areas where attention is directed," but it
generally worked "haphazardly as an oversight mechanism." Similar criticisms
were aimed at the appropriations process as being ad hoc and in response to "a
newspaper article, a complaint from a constituent or special interest group, or
information from a disgruntled agency employee" rather than stemming from a
systematic, regular review (U.S. Senate, 1977).
The 1977. Senate Committee report went on to propose a number of
recommendations for improving oversight. First, all regulatory agencies should be
"subject to a periodic authorization process" to ensure thorough scrutiny before
being reauthorized. Second, Congress should increase the amount of information
available to it by requiring agencies to respond to committee requests for
information "within a specified period," and by "including sufficient funds for
agencies to meet such requests." Third, all committees should submit with their
budget requests to the Rules and Administration Committee a report on their
oversight plans. The Congressional Research Service would compile this
information and identify areas of "potential conflict and cooperation," and the
General Accounting Office would submit an annual report of its oversight plans.
Fourth, each regulatory agency should be required to "evaluate its
regulatory programs and present its evaluations to congressional authorizing
committees annually," to include "a discussion of the agency's goals for the next
few years" and "a plan for evaluating agency performance of those goals." Fifth,
appropriations committee staffs should be increased to permit them to "probe
more deeply into the priorities and efficiency of operations of the regulatory
agencies;" and increased resources should be provided for other committees where
they could be justified for improved oversight. Other recommendations
emphasized increased use of congressional support agencies, follow-up hearings
and inquiries to see if agencies implemented committee recommendations, and
writing statutes "as narrowly as possible."
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Until 1983, one oversight tool Congress relied on was the legislative veto.
Between 1932 and 1982 Congress included 318 legislative veto provisions, in their
various forms, in 210 statutes. Legislative vetoes applying to regulatory agencies
generally required that agencies submit proposed regulations to Congress before
they took effect. Some vetoes required both houses to pass a concurrent
resolution to disapprove a regulation, while others required action by only one
chamber. By 1982, over 1,100 legislative veto resolutions had been introduced.
Of the 230 resolutions that passed, 111 were in response to decisions of
immigration judges concerning the deportation of aliens; 65 related to budget
impoundment disputes; 24 were used to reject presidential reorganization plans;
and 30 were for other purposes, including vetoing of agency regulations
(Congressional Research Service, 1983).
The legislative veto was viewed by many members of Congress as a practical
and attractive means of managing congressional/executive relations. It permitted
Congress to allow executive judgment, discretion, and initiative while
safeguarding congressional prerogatives. It was considered a useful mechanism
for facilitating compromise over the division of authority and responsibility
between the legislative and executive branches in areas of shared constitutional
responsibility, and for helping resolve particularly intractable policy conflicts
(Cooper, 1983).
Critics of veto provisions in regulatory statutes charged that: the provisions
encouraged Congress to delegate more discretionary power to the executive
branch but with less legislative guidance; the vetoes served to blur lines of
accountability and responsibility; and they permitted business and industry groups
to use their political clout in Congress to reverse agency actions (that they had
earlier failed to block in rule-making proceedings) without the procedural
safeguards applied to agency processes by the Administrative Procedures Act
(Bruff and Gellhorn, 1979). Despite the shortcomings of the legislative veto,
however, it provided Congress with an important means of managing its relations
with the executive branch and gave Congress considerable flexibility in writing
statutes and overseeing their implementation.
In 1983, the Supreme Court, in INS v. Chadha, voided the legislative veto as
a violation of the constitutional requirement that both houses act together with
the president in taking legislative-like actions. Some members immediately began
calling for a constitutional amendment to permit the legislative veto (DeConcini
and Faucher, 1984). Despite the Court's ruling, Congress continued to enact
committee vetoes, where agencies were required to gain the approval of specific
committees before taking certain action. Between June 23, 1983, and the end of
the 99th Congress in 1985, 24 statutes were enacted which included a total of 102
vetoes, including those that were "incorporated by reference" into continuing
resolutions (Fisher, 1987). While there is no formal mechanism for enforcing
committee vetoes, agencies are unlikely to ignore the expressed wishes of
committees with legislative authority over them.
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EXAMPLES OF CONGRESSIONAL OVERSIGHT
While oversight generally involves the elements outlined in Chapter Two, the
political context--divided government, recent conflict over the interpretation of
laws, and other causes of inter-branch tension--determines the way oversight
takes place. The agencies discussed in this chapter are not a representative
sample, but do illustrate some of the challenges of developing effective oversight
relationships. The information is based on a series of meetings with former and
current agency officials, members of Congress and committee staffs, scholars,
and representatives of public interest groups and trade associations.
Most regulatory agencies fall into one of two broad categories: the newer
regulatory agencies, responsible for protecting the environment and human health
and safety, whose jurisdictions cross industry lines; and the older agencies,
generally organized along sectors of the economy. The first example examined
here is the Environmental Protection Agency, an agency that has been the subject
of a great amount of congressional oversight. Most of the difficult issues
associated with oversight are reflected in EPA-congressional relationships and this
example is thus given considerably more space than those that follow.
The Federal Trade Commission is the second agency examined. It provides a
useful case of an agency that is relatively mature, having been created in 1913,
but that has been engulfed in controversy as a result of the disagreement
surrounding statutory authority recently given to it. A third example is the
Securities and Exchange Commission, an agency that enjoys relatively good
congressional oversight relations primarily because of a mature statutory base and
related factors. Oversight of several other regulatory agencies is also briefly
reviewed to examine the extent to which, oversight of these three agencies is
unique and to explore further the challenges oversight poses for Congress and for
agencies.
Environmental hazards are politically significant; they occur in every
congressional district and are a major topic of constituent communication with
members of Congress. Environmental regulation is central to the interaction of
business and government and has major consequences for industrial
competitiveness. Congressional oversight has been quite visible and has recently
had major impacts on the agency, from causing the replacement of almost all the
original Reagan administration appointees to pressuring the agency to reverse
important decisions. The EPA provides a particularly useful case study of how
oversight takes place and its impacts on agency operations. It also illustrates the
difficulties of overseeing the newer "social" regulatory agencies, where consensus
has not yet developed between the legislative and executive branches over the
meaning of statutes and how to implement them.
Responsibilities for environmental regulation in the executive branch are
widespread and encompass: several parts ' of the Executive Office of the
President, including the Council on Environmental Quality and the Office of
Management and Budget; Interior (public lands, energy, minerals, national parks);
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Agriculture (forestry, soil, conservation); Commerce (oceanic and atmospheric
monitoring and research); State (international environmental agreements and
concerns); Justice (environmental litigation); Defense (civil works, dredge and fill
permits, pollution from DOD facilities); Energy (energy development and
allocation); Transportation (airplane noise, oil pollution, transportation of
hazardous substances); Housing and Urban Development (urban parks, planning);
Health and Human Services (health); Labor (occupational health); and the Nuclear
Regulatory Commission.
Environmental statutes are very expansive in promising to address and
remedy numerous environmental and health hazards. They are also very specific
and include precise mandates for the implementing agencies, particularly the
EPA. Many statutes read more like regulations than statutes. They impose
deadlines for agency actions, and many include "hammers"--statutory provisions
that go into effect after certain deadlines unless the agency issues a regulation
for specified problems.
Unlike most other areas of regulatory activity, Congress has come to rely on
statutory deadlines to force the EPA to take specific actions. According to a
study of the Environmental and Energy Study Institute (1985), from 1970 to 1980
Congress included 328 deadline provisions in the 15 environmental laws it enacted
(not including deadlines for administrative reviews by the agency and
court-ordered deadlines). Of the 328 deadlines, 86 percent applied to the EPA, 22
percent to the states, and 7 percent to regulated industries. Some 35 percent of
the deadlines were for issuing rules and regulations, 33 percent mandated reports
and studies, 13 percent related to compliance provisions and guidelines, and 19
percent were for other agency tasks. Only 14 percent of the tasks were
accomplished by the statutory deadline; 15 percent of the standards for rules and
regulations were met. Despite limited success with statutory deadlines, in its
1984 amendments to the Resource Conservation and Recovery Act, Congress
included more than 60 additional deadlines, some of which also included
action-forcing hammers.
A great number of congressional committees have at least some jurisdiction
over environmental regulation, reflecting the division of responsibility in the
executive branch. Legislative responsibility in the Senate is focused primarily in
the Environment and Public Works and the Agriculture Committees. In the House,
the Energy and Commerce, Public Works, and Science and Technology Committees
share legislative jurisdiction. The Appropriations and House Government
Operations/Senate Governmental Affairs committees have major oversight and
budget interests in the EPA and related agencies. The agency is confronted by a
diverse and fragmented set of overseers: 34 Senate and 56 House committees and
subcommittees exercise jurisdiction over the agency (EPA, 1987).
The number of appearances by EPA officials before congressional
committees and other congressional bodies during 1984-86, shown in Table 1,
depicts this diversity (EPA, 1987). Table 2 shows the subjects of EPA appearances
before congressional committees ranged from a concern with specific issues to
broad reviews (EPA, 1987).
Table 3 lists the number of letters EPA received from members of Congress
and their staffs--personal and committee. This further reflects the extent of
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congressional oversight (EPA, 1987). These figures do not reflect the additional,
direct influence of congressional committee and subcommittee staff on agency
decision making through informal meetings and briefings on major rule makings
and enforcement activities, and the indirect influence congressional staff
members have as agency officials try to anticipate likely congressional responses
to agency proposals.
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Table 1
EPA Appearances Before Congressional Committees
1984-86
House Committees
1984
1985
1986
Agriculture
1
1
2
Appropriations
1
1
1
Armed Services
1
District of Columbia
1
1
Energy and Commerce
10
15
12
Foreign Affairs
1
Government Operations
4
1
7
Interior and Insular Affairs
2
2
3
Judiciary
1
1
Merchant Marine and Fisheries
3
5
1
Post Office and Civil Service
1
1
Public Works and Transportation
9
4
Science and Technology
4
10
6
Small Business
1
2
4
Ways and Means
1
2
Budget Task Force
Northeast Midwest
Congressional Coalition
1
1
Senate Committees
Agriculture, Nutrition & Forestry
1
Appropriations
2
1
1
Commerce, Science and Transportation
1
Energy and Natural Resources
2
3
Energy and Public Works
10
24
11
Finance
1
1
Governmental Affairs
2
1
Judiciary
1
3
Small Business
1
Note: Numbers represent "congressional hearings at which EPA was requested
to present a formal statement."
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Subjects of EPA Appearances Before Congressional Committees
1984-86
Subject of Hearings
1984
1985
1986
Reauthorization of existing legis-
lation/discussion of new legislation
9
17
10
Superfund
Discussion of specific environmental
hazards such as asbestos, acid rain
33
37
38
Budget requests/appropriations
General agency administration/
administration of particular programs
7
5
6
Confirmation hearings
Note: Totals do not match those of previous table since some hearings
included more than one subject.
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Member and Staff Correspondence
1984-mid 1987
Number of Letters
Year
Requesting Information
1984
4,476
1985
4,305
1986
3,939
1987 (Jan. 1-June 15)
2,300
Table 4
EPA Rules Reviewed by OMB, and Proportion Changed
1981-86
Year
Number of Rules
Percent Changed
Reviewed
after OMB Review
1981
734
na
1982
340
na
1983
268
na
1984
302
74.5
1985
302
66.2
1986
197
66.5
Note: These figures do not include a number of EPA regulations such as
pesticide tolerances (except those where an existing tolerance is made
more strict) and other actions concerning pesticide regulation, and rules
where the EPA gives unconditional approval to state actions such as
state implementation plans under the Clean Air Act and state water
standards. The figures include proposed and final rules (Office of
Management and Budget, 1987, Appendix).
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The role and influence of congressional staff members in the regulatory
process is to some extent matched by that same kind of direct and indirect
influence by OMB officials and other staff in the Executive Office of the
President and the White House. The Reagan administration's Task Force on
Regulatory Relief, which operated from January 1981 to August 1983, and was
reestablished in 1986, has given particular attention to EPA regulations.
Under Executive Order 12498, the EPA and other regulatory agencies, except for
the independent regulatory commissions, submit to the OMB a regulatory program
that outlines the "significant regulatory actions" they plan to undertake during the
following year. The program is negotiated by agency and OMB officials, who use
it to set agency priorities, allocate resources, eliminate regulatory initiatives that
would be inconsistent with the administration's regulatory principles of cost-
benefit analysis and lowest net regulatory costs, and urge agencies to avoid
regulatory interventions whenever possible (Office of Management and Budget,
1985, 1986, 1987).
Under Executive Order 12291, OMB must approve regulatory analyses
accompanying all major regulations issued by the EPA and other agencies. The
agencies must demonstrate that regulations satisfy the administration's regulatory
principles, unless the agency is prohibited from making such determinations by its
enabling statutes. These OMB reviews have generated enormous controversy,
since OMB overseers may push the agency in directions different from those
suggested by congressional committee staffs, committee reports, and, in some
cases, statutory language. The number of EPA rules reviewed and the proportion
changed after OMB review are listed in Table 4.
Although many of the changes required by OMB are quite minor, these
changes reflect the continuing tension between EPA and OMB over the
administration's regulatory principles and the impact these principles have on EPA
regulations. The conflicts between Congress, the president, and the EPA, in part,
reflect divergent views concerning the role of government in regulating
environmental hazards. For many of the congressional sponsors of environmental
legislation, reducing hazards and risks is the primary goal and costs are secondary,
while the executive branch has been more concerned with balancing economic and
environmental policies. This was true in the Carter administration. During many
of the past seven years, however, the tension between Congress and the executive
branch has been greatly increased by the appointment to the EPA of people who
were critical of congressional handiwork. The conflict goes beyond a concern with
tempering environmental regulation to placing economic growth ahead of pollution
reduction. OMB's regulatory review has been used to reinforce the commitment
of the political appointees to the administration's agenda. Congress has, in turn,
focused much of its concern on OMB's role in the regulatory process (U.S. Senate,
1986).
These differences are exacerbated in Congress, where the EPA faces a
fragmented array of overseers and legislators, with different priorities and
agendas that must, along with OMB attempts to shape decision making, be
reconciled by the agency. The rule-making process has become very cumbersome,
and major regulations take several years to promulgate. The EPA has begun to
experiment with alternative processes, such as regulatory negotiation, where the
agency convenes a series of meetings with interested parties to develop the
provisions of a regulation. But the experience thus far does not indicate that this
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kind of procedural mechanism is likely to alter the political dynamics of rule
making, although it appears to be much more promising in resolving specific
disputes over the enforcement of environmental laws (Bingham, 1986). Some
tension between the two branches is inevitable, and there are some advantages to
the different perspectives that the separation of powers brings to the policy
making process. But the future of environmental regulation depends on the
development of at least a minimum level of communication and trust between
Congress and the executive, and a joint effort to help the EPA establish its agenda
and set its priorities.
CRITICISMS OF CONGRESSIONAL OVERSIGHT OF EPA
First, many of those interviewed saw oversight as excessively burdensome.
Former assistant administrator Milton Russell has argued that "without the
umbrella kind of oversight--someone dealing with the organic EPA --there is so
much oversight that it absorbs a large amount of time, a very large amount of
resources. If oversight were a little more focused, more coherent, maybe it would
have less of an impact on agency resources." Russell emphasized that oversight is
fragmented and duplicative, that the "vast diversity of specific interests--f or air,
water, and others--and within air (acid rain, toxics) can beat you up in
subcommittee hearings. . . . There is a lack of concern with basic questions like
what is the agency supposed to be doing? How well is it doing?"
Others emphasize that oversight is obsessed with embarrassing agency
officials and exposing problems that make "good press" rather than dedicated to
exploring more basic problems and concerns with the implementation of
environmental statutes. Former EPA assistant administrator William Drayton
notes that the real value of oversight--the accountability that can come from
forcing administrative officials to explain and defend their decisions--is largely
unrealized.
A member of a public interest group argued that few members of Congress
are sufficiently knowledgeable about the challenges confronting the EPA:
Congress needs to make clear what it wants to do. It needs to have
people who are knowledgeable, who know how to manage risks and the
reduction of them. . . . How many of them have gone to a utility,
seen how it works, looked at the technologies? Congress needs to be
out there, to be informed, to try and work with the executive branch
to figure out how laws work, how technologies work.
According to this official, Congress' lack of understanding of how
environmental laws work results in the agency, in terms of effectively carrying
out the laws, being paralyzed. He said:
Oversight should help Congress help the agency accomplish the
purposes of the law. Instead, it is backing the agency further and
further into inaction. Oversight should try to make the laws work, to
make sure new laws work better than the old ones. Instead, oversight
becomes a game: how long has it been since EPA missed a deadline?
Who gets to attack the agency? It has to be brokered because
everyone wants a turn.
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From the perspective of another observer, Congress has failed to create, in
oversight, a system that facilitates agency management, that would "permit a
whole bunch of things to occur that don't occur at EPA. Deadlines are written into
concrete before anyone has a fix on the problem, let alone before anyone has a
solution." Oversight does not require agencies to report to Congress:
... what their budgets will and will not buy, what they will and will
not do, what permits they will issue, what deadlines they will meet,
how the current budget compares with what they did last year. There
is no management accountability. Agencies should say what they will
do and Congress should hold them to it. Oversight fails to provide an
opportunity to hold administrators accountable for their actions.
A second set of criticisms of oversight, and of actions in the broader context
of congressional-EPA relations, is that Congress fails to provide flexibility and a
sufficient degree of administrative discretion to permit the agency to accomplish
its statutory tasks efficiently and effectively. EPA Administrator Lee Thomas
said:
The ideal situation is a statute with some flexibility and then tight
oversight. I would like to see some flexibility so we can use some
judgment. Committees should give pretty tight oversight of how you
carry out the laws--but that is the reverse of the direction Congress
is going--more tightening of statutes with no scientific understanding
of what they are doing.
Milton Russell argues that "oversight and litigation drive 90 percent of the
agency's priorities, and there is very little opportunity to do anything else... .
The agency's work is driven by outside pressure--litigation, hammers, some 600
statutory deadlines, and public pressure."
Third, oversight often fails to address many issues that the agency struggles
with and that would benefit from a discussion with Congress. For Lee Thomas,
oversight often becomes:
... what I term a kind of a witch hunt oversight, which is kind of a "I
gotcha oversight. . . ." That is motivated, sometimes to a large
extent, by an overzealous staff, sometimes by a member who is
particularly interested in publicity, and sometimes by members and
staff who feel that the way to get their direction on something is
through intimidation. I don't think that's very constructive. As a
matter of fact, I think that it has a chilling effect on decision making
in the agency, and in an agency like ours, you need to be able to make
decisions: you need to be able to make reasonable decisions with the
understanding that you're accountable for them, you may well hear
about them, but that it's not going to end up as some kind of
posturing, personal attack.
For Thomas, however, Congress does not have a monopoly on poor
oversight: "I don't think, for instance, that in the executive branch, OMB does any
better job as far as management oversight and budget processes in its review of
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agencies than the Hill does. As a matter of fact, I'd say the Hill probably does
better."
The implementation of environmental laws requires the agency to make a
variety of important choices: the tasks delegated to the agency far outstrip the
resources provided, agency decisions must be based on scientific findings and data
that are incomplete and tentative at best, and agency officials must determine
the distribution of the enormous costs of compliance with environmental laws and
regulations. For Thomas, that translates into the need for:
... far more interaction, but in a thoughtful way, with members as
well as staff.... The members are so involved with so many things
that they don't have the time to really understand the issues. And
with rare exception, you get the impression that many of the
members just don't understand, that they're largely led by staff, and
unfortunately many of the staff don't understand.
David Hawkins, an assistant administrator of the EPA in the Carter
administration, argued that oversight goes beyond monitoring agencies, to
providing opportunities for regulated industries to weaken regulatory activity:
Trade associations follow the development of a rule . . . and locate a
company or industry that is in the district of an influential member of
Congress and then get a meeting set up and then go in there and
[force the agency] to explain what the decision was. It was a point of
contact to which the agency had to respond and started to be a factor
that was taken into account in the policy-makers' thought processes.
[The problem is] the absence of a similar process for the pro-
environmental control side. . . . It is more difficult to find an
influential group of citizens to go into a member's office and ask for
a meeting with the administrators of EPA to defend a process that we
are trying to develop very early on.
For Hawkins, there has been too much oversight of this kind--"focusing on
the hassles that the agency has created for the regulated industry"--while other
areas have been ignored, such as the extent to which the EPA "has actually
required state implementation plans to fully conform to statutory mandates and to
the EPA regulations implementing the statutory mandates."
Deputy Administrator James Barnes has concluded that there is too much
oversight.
In the environmental field, a whole lot of agency activity is involved
in oversight of sorts. We have a very strong regional system and the
headquarters people spend a fair bit of time overseeing what is going
on in the regions. The regions, in turn, are overseeing the states,
which are the people who, in many cases, are carrying out the
environmental programs. And I guess if some of us start to shake our
heads a little bit about the amount of oversight, it is knowing how
much of it goes on just within the agency--and then people checking
us from outside--it wouldn't surprise me to find there are four people
doing oversight, for every one doing the job to begin with. You start
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to question how much value added you get on the margin from having
a lot more oversight.
CONGRESSIONAL RESPONSES TO CRITICISMS OF OVERSIGHT
From the perspective of congressional staff members, there is never enough
oversight. One purpose of oversight is to protect the independence of the EPA
from other elements of the executive branch. "Oversight," - one House committee
staff member argues, "is often done to support the EPA against the executive
establishment--against intrusion by OMB, to ensure the ability of the EPA to
enforce the law against other agencies, especially large agencies like the
Department of Defense and Department of Energy."
Oversight is necessary, from the committee staff member's perspective,
because of the power of OMB and the Reagan administration's "deep hostility
toward effective environmental regulation." Some agencies "live in terror of OMB
... the Hill is grabbing one arm, and OMB is grabbing the other arm. If OMB let
go, it would really be better for the country, in my view, but if the Hill let go, it
would really be bad." For another staff member, the problem with OMB's role is
that it:
... does not have to come up here and testify before us. OMB does
not answer to us in any way. The EPA is answerable, the EPA does
have to come up here to explain. So that there is a real disconnection
between the OMB exercising that kind of authority and any sort of a
real congressional oversight.
Other congressional staff members emphasize that the "main thrust !of
oversight) is that the agency should be able, in an unimpeded way, to make its own
legal and technical decisions and implement them and decide whether or not to
issue the rule. . . . A lot of our environmental oversight tends to be process
oriented." They argue that the power of Congress in oversight is quite limited and
reject the idea that Congress gets too involved in the details of agency
management.
The tension and aggressiveness of congressional oversight, they argue, is a
result of the Reagan administration's "tendency to ignore the will of Congress."
The frustration expressed by many congressional staff members is that oversight
is very limited in directing agencies, and in getting them to follow the will of
members of Congress rather than the president's. Given that there are fewer
congressional staff than staff in executive agencies, oversight "is really most
suited to kind of ad hoc fine tuning. When you have an administration that really
just doesn't want to follow the law, oversight is just not going to correct that
across the board." Oversight can bring about some changes--the EPA has reversed
itself in some rule making and enforcement decisions, and oversight led to the
resignation of virtually all of the top EPA officials in 1983--but Congress is still
unable to monitor all the agency's activities.
Congressional staff members argue that there is little overlap and
duplication in oversight, that the different committees "complement" each other
rather than compete: "We pick and choose, and try not to do the same agencies.
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That doesn't necessarily mean we work it out in advance or anything like that.
Most chairmen, once they see the other guy is doing something, aren't going to get
into the same issue. We don't have the resources to do that."
Oversight is also driven by congressional lack of confidence in regulatory
agencies. As one House staff member put it,
Lots of people lost faith with agencies in the 1980s. That led to an
increased amount of vigilance. There were lots of concerns--were
the agency's concerns the same as those of Congress? Why are all the
programs not being carried out? Congress believes that the agency
should be doing all the tasks given it. There are more mandates than
the agency has resources, and the Hill believes that the
administration ought to put the resources that are needed there.
Other congressional staff members defend themselves against the criticism
that oversight is too responsive to and dependent on the media by arguing that
oversight must take advantage of the publicity and media attention surrounding an
event. One subcommittee was "looking at municipal waste before !the garbage
barge storyl hit. It was a useful way to highlight and get the public to grasp a
much larger problem. It was hard to get the message to the public --and then the
barge came along and we took advantage of it." Media attention is viewed by
many staff members as critical in getting the attention of the members of
Congress, agency officials, and the public and essential in bringing about changes
in the agencies. "Oversight," one staff member concluded, "is not just for the
agencies, but also for the public--it is a way for Congress to communicate with
the public."
Is oversight of the EPA representative of oversight and agency-congressional
relations for the newer, social regulatory agencies in general? As indicated
above, the EPA is in a unique situation, given the pervasiveness of environmental
hazards and the large number of committees with jurisdiction over the agency.
Congressional staff members emphasize the tremendous urgency about
environmental problems that is reflected in the comments received in members'
offices. Perhaps most important, the newness of environmental statutes, the
uncertainty about their consequences, the lack of consensus over priorities, and
the great costs that they impose on regulated industries all come together to
make congressional-agency relations very difficult. In the absence of experience
and consensus, surprises are likely, and members of Congress are particularly
critical of major regulatory initiatives that catch them off guard.
The regulatory actions of the Federal Trade Commission (FTC) do not
usually elicit the kind of emotional responses, publicity, and fears that are
characteristic of environmental regulation. Nevertheless, there has been
considerable interest in Congress in overseeing the FTC. In the 1960s, the Senate
Commerce Consumer Subcommittee, encouraged by Ralph Nader, the American
Bar Association, and others, sought to invigorate the Commission through new
legislation and aggressive oversight. The Subcommittee, according to a former
staff member and later Commission chairman (1977-81), Michael Pertschuk,
believed the Commission:
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. had the wrong constituency--the FTC bar, the advertising
industry--instead of the public and consumers. The goal of the
Subcommittee was to acculturate the Commission to look in a
different direction. The confirmation process became increasingly
elaborate, and included an extensive set of questions to find out
where nominees stood, but, more importantly, to give them
direction. We asked them to meet with consumer groups--a
questionable practice looking back on it--not to elicit answers as
much as to get them to think that their constituents were consumer
groups.
By the mid-to-late 1970s, the FTC became a much more aggressive
regulator. Its rule-making powers were significantly strengthened by the
Magnuson-Moss amendments in 1974, and it undertook a number of controversial
rule makings in the mid-1970s that were suggested by congressional committees.
Commissioners appointed by Presidents Nixon and Ford turned the agency into a
much more aggressive regulator than it had been in the 1960s. The appointment
by President Carter of Michael Pertschuk as chairman pushed the commission
even further as it became a province of liberal, consumer-oriented activists,
encouraged by its congressional overseers who also encouraged more regulatory
activity.
As the Commission became more activist, Congress became more
conservative. Many of the strongest advocates of consumer protection had left
Congress as had some of their staff, and more conservative members were being
elected. Concerns with inflation, decreased productivity, and the costs of
regulation dampened enthusiasm for aggressive government intervention in the
economy. Lobbying by business groups became more coordinated and effective
and, combined with their power to help finance congressional campaigns, led to
pressure on Congress to restrict the FTC's regulatory reach. Congress complied,
and began reeling in an agency that had gotten too far ahead of its support in
Congress (Heymann, 1987, 29-39).
Congress used appropriations legislation to exempt particular industries and
professions from FTC regulation and to place restrictions on issuing regulations
for children's advertising and insurance. The Commission functioned under
continuing resolutions for three years, because Congress was divided over whether
to include a legislative veto provision in the reauthorization legislation. In 1980,
after the Commission became the first federal agency to shut down because of a
lapse in funding, Congress reauthorized the FTC with a two-house legislative veto
and several restrictions on pending rule makings. Congress vetoed the FTC's used
car rule, but the veto was overturned by the Supreme Court in 1983. The FTC has
not been reauthorized since 1982, in part because reauthorization efforts became
enmeshed with controversies over the regulation of advertising in 1985, and James
C. Miller III's departure as chairman.
In the mid-1980s the focus of congressional oversight shifted again,
especially in the House, where some members of Congress believed that the
Commission was not doing enough to protect consumers. Efforts by Miller to cut
commission staff and budgets and close regional offices were resisted by Congress
in oversight hearings and legislation. The appointment of Daniel Oliver as
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chairman in 1985 exacerbated congressional-Commission tension because Oliver
openly criticized and rejected the Commission's earlier activist efforts.
During the 99th Congress (1985-86) the FTC participated in 18 congressional
hearings; from January through August 1987, the Commission had already
participated in 17 hearings. Congressional hearings on topics such as insider
trading and "hostile" mergers, particularly in the House, gave members the
opportunity to criticize the FTC for not doing more to regulate business practices,
and gave the FTC chairman the opportunity to defend his strongly held views on
the inappropriateness of government regulation in these areas.
Michael Pertschuk has argued that Congress must give the FTC direction
before it takes on major rule makings. Congress sets the limits for rule makings,
but those limits should be set before the Commission invests time and resources in
efforts that will eventually be rejected by Congress. The one controversial FTC
regulation that survived--the funeral rule--was ordered by Congress in a 1980
conference report that provided guidelines for the regulation.
Commissioner Mary Azcuenaga observed that Congress is much more likely
to get involved in FTC rule making than in that of other agencies because of the
nature of FTC regulations. They are less technical than EPA regulations, for
example, and are similar to the kinds of issues that Congress itself addresses in
legislation.
Congressional staff members emphasize the importance of public opinion
and pressure in assuring agency responsiveness to congressional concerns. One
House staff member argued that "the key to effective oversight is to get public
opinion on your side -- otherwise it is hard to move an agency. Even if you can
show that what they have done is bad policy or against the law, if the public is not
interested, you can't change the agency." Another staffer said:
Oversight is an attempt to sway public opinion. That is why it is not
done very well. You choose extreme cases, you choose outrageous
situations, and beat the agency over the head. That's the only way it
works. That is how to be effective. That may be lamentable, but it
is the only way to force changes without legislation....
From the perspective of an FTC official, publicity was also important:
It is difficult to get much public interest in the FTC. Mike Pertschuk
overestimated public support for FTC regulation, while Jim Miller
underestimated litl. . . . Members of Congress look for something
that will get some interest--the rifle shot approach to getting
publicity in oversight. Oversight primarily takes place through
appropriations and authorization hearings !andl through proposing
legislation that never gets passed.
Businesses that have been the subject of FTC initiatives are located in
virtually every congressional district, and Commission regulations can result in
widespread congressional interest in and opposition to regulatory agency decisions.
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One frequently mentioned problem with oversight is its narrowness. From
the perspective of one congressional staff member, oversight "often only gets one
side--industry's side. Congress only hears from those on whom the regulation is
imposed, and they don't hear from consumers or others." From Commissioner
Azcuenaga's perspective, oversight can be used to "further a parochial issue of a
member;" and such oversight fails to recognize that there are "always tradeoffs,
that you are taking resources from someone or something else."
The Securities and Exchange Commission (SEC) has generally enjoyed
positive and peaceful relations with Congress. There is little of the acrimony and
adversarial tension that is found with other regulatory agencies. This is not
because the issues the Commission deals with are not controversial or of interest
to Congress; rather it is largely because the Commission keeps relevant
congressional committee chairs informed and because a half-century of
experience with SEC regulations contributes to a relatively stable political
relationship. There is a general agreement in the legislative and executive
branches concerning the nature of the agency's regulatory powers and
responsibilities.
The recent controversies surrounding the SEC include hostile corporate
takeovers, "insider trading" in the securities markets, fraud in accounting firms,
telecommunications and futures trading, and protection of investors through
disclosure requirements. The Commission, as with other agencies dominated by
Reagan administration appointees, has generally preferred market-determined
results to regulatory interventions, and has angered some members of Congress by
failing to restrict corporate takeovers. While the SEC has recently increased its
efforts to reduce insider trading, it has favored self-regulation of the accounting
profession and disclosure of information rather than direct regulatory
intervention.
Most of these actions by the SEC have been criticized by some members of
Congress, but the Commission has generally been able to maintain its support in
Congress and escape the kind of adversarial oversight characteristic of other
agencies. Many SEC issues are also considered to be rather technical, and
Congress has been willing to defer to what it sees as an expert and professional
administrative body, even though issues like corporate take-overs and insider
trading have evoked strong congressional interest in commission activities.
The number of hearings in which SEC personnel have participated has varied,
from a high of 34 in 1977-78 to 15 in 1981-82 (not including confirmation
hearings). Some of these hearings were strictly legislative, but even those could
be considered oversight since they reviewed the adequacy of the existing statutory
framework and the need for amendments.
A significant amount of SEC oversight also takes place through inquiries
from members of Congress, particularly letters from the House Energy and
Commerce Subcommittee on Oversight and Investigations. While the Commission
does not know the number of requests, there is considerable communication
between Congress and the SEC concerning the level of regulation the Commission
is engaged in versus the level of activity members of Congress want. There is also
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regular interaction between Commission and congressional committee staff
concerning specific regulatory issues. Congressional committees are sent copies
of the SEC's daily news digest which discusses regulations under consideration.
There has been some tension between Congress and the SEC concerning
enforcement activities. One congressional staff member indicated that oversight
inquiries sometimes run up against an agency response that "it is an enforcement
matter, and the agency can't comment. It is an unusual situation. So much has to
remain confidential to protect the case." Thus, the staffer explained, "Members
are hesitant to threaten the case. There is a healthy respect for that." Another
congressional staff member was less optimistic:
Members of Congress feel strongly that Congress should not interfere
with enforcement cases. But the right of Congress to look at the
agency is on a real-time basis. The House rule says continuous
oversight. If we waited. until all the insider trading cases were over
before we looked at it. . You can't wait. The demands of
legislation require that legislation is based on current problems.
Another committee staffer observed, "It is easy for the SEC to say they don't
want to provide information because it will compromise a case." The key is the
trust between the two branches: "Does the SEC trust the committees to keep
information confidential? Congress can't operate with blinders on. They have to
trust us with information."
To maintain good congressional relations while still having policy
disagreements with Congress, commissioners traditionally meet informally with
the relevant congressional committee chairs. Commission meetings, in which
regulatory initiatives are discussed, are open to the public; and the Commission's
tradition of open discussion gives Congress ample opportunity to monitor what is
happening. The director of congressional liaison takes particular care in assuring
that congressional staff members are made aware of Commission actions that are
likely to be of interest to Congress. While other agencies take similar steps, the
SEC appears to have been particularly effective in communicating with Congress.
The character of congressional-SEC relations is explained by one
congressional staff member who argued that:
Unlike other agencies, the SEC is less captive. The FCC is always a
captive of the broadcasters; the ICC is captured by truckers and the
railroads. In the corporate world, the financial institutions check
each other. . . . The SEC has to respond to Wall Street, corporate
officers, stockholders. There are no blocs that can control the
agency. The SEC benefits from that--it has a broader mandate, a
broader constituency.
Since banks, insurance companies, and brokerage firms offer similar financial
services, in many cases, the competition among them checks the power of
individual institutions. Related to this is the value of effective regulation for
these institutions in reducing unfair practices (such as insider trading) and assuring
investors of the security of their investments. Regulation offers important
benefits for the regulated industry rather than, in the industry's eyes, merely
imposing burdens.
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Steven Paradise, Washington representative of the New York Stock
Exchange and a former Senate staff member, argued that "industry is so
dependent on regulation that it doesn't fight regulation. When the SEC criticizes
us we don't fight it. What they do is in our best interest." As a result, the
regulated industry is more likely to lobby Congress in support of effective
regulation than in opposition to it.
A third element in congressional-SEC relations is the SEC's independence
from the Office of Management and Budget. In 1981, Reagan appointed John Shad
as chairman of the Commission. Shad initially expressed support for OMB's
regulatory review process and considered submitting SEC regulations to OMB for
approval. Representative John Dingell then intervened and convinced Shad not to
submit regulations to OMB (Securities Regulation and Law Reporter, 1981, p.
609). Subsequent oversight actions by Congress have sought to ensure SEC's
independence from OMB. Former Commissioner Charles Marinaccio argued that
one purpose of oversight has been "to make sure the SEC is really independent,
that it is not under OMB's power to approve regulations. . . . OMB tried to
include independent agencies in its review of regulations but congressional
oversight kept [the SEC] independent." As a result, OMB involvement in the
regulatory process that has triggered confrontational oversight by the Congress
for other agencies has not been a factor in congressional-SEC relations.
OMB's efforts to cut the Commission's budget, however, have been the
source of some tension between it and congressional advocates of more regulatory
activity by the SEC. In 1983, the four commissioners, acting independently of the
chairman, submitted to the House recommendations for the agency's budget, and a
House committee ordered the chairman to work with the other commissioners in
submitting a budget (Securities Regulation and Law Reporter, 1983, p. 602).
Despite these differences over the level of funding for the agency, there has been
a general agreement between the SEC and Congress concerning the
implementation of securities laws. According to Marinaccio, "the SEC has the
confidence of Congress ... Congress has a healthy respect for the SEC. It carries
out the mandate Congress wants it to." SEC officials, unlike those in some other
regulatory agencies, "believe in their mandate." Conversely, the commissioners,
according to Commissioner Edward Fleischman, "have had respect for Congress."
A fourth factor in these relations appears to be the flow of personnel to and
from Congress and the SEC. Not only do those interpersonal ties soften the
adversarial nature of oversight, but the exchange of personnel assures that
Congress has a good understanding of SEC operations. Congressional staff also
generally agreed that the quality of personnel at SEC was higher than at other
agencies. For one congressional staff member, "It was a horrible experience to
work at the FTC. We didn't do anything. But it was fun to work at the SEC -- we
did things. The caliber of people who came in to practice before the FTC was
lower than for the SEC." "We have a shared purpose here at the SEC," according
to Michael Mann, a Commission lawyer. "It sounds hokey, but you're doing good,
doing the right thing by people, keeping business honest" (New York Times,
7/26/87, sec. IV, p. 1).
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The experience of other agencies with oversight varies considerably from
that of the agencies discussed above, although there are common features. Much
of the controversy surrounding oversight of regulatory agencies is a result of the
challenges Congress faces in overseeing the agencies that regulate health and
safety problems.
The Food and Drug Administration
Oversight of the Food and Drug Administration (FDA) in some ways parallels
that of the Securities and Exchange Commission. Until recently, the FDA enjoyed
considerable autonomy and independence as a regulatory agency within the
Department of Health and Human Services (HHS). Under the Reagan
administration, the FDA came under increased control of the Secretary of HHS,
and all agency decisions are reviewed by the Secretary's office.
Much of the oversight of the FDA from the House Energy and Commerce
Committee, for example, comes from a concern of the committee of "how can we
help you accomplish your job," although the committee does not hesitate to
attack the agency when it falls short. A congressional staff member noted:
a general presumption in Congress that the FDA does a pretty good
job. They do screw up--the Human Resources and Intergovernmental
Relations Subcommittee has found some problems--but the people at
FDA are good, there is a high level of commitment and scientific
expertise that is much better than at other places like the Consumer
Product Safety Commission.
Congressional concern is most likely raised when members believe that FDA
decision making has been compromised by OMB or administration interference.
The political environment in which the FDA operates serves to insulate it
from some congressional attacks. Business groups usually support the agency,
because industries have much to gain from an effective FDA. FDA regulations
and enforcement actions benefit industries by enforcing quality, efficacy, and
safety standards, and promoting consumer confidence in food and drug products.
However, much of the congressional criticism aimed at the agency has been
generated by groups such as the Public Citizen Health Research Group and the
Center for Science in the Public Interest, which charge that the agency has been
insufficiently aggressive in regulating industry and has failed to take actions that
would have saved lives or prevented illnesses and injuries.
The Occupational Safety and Health Administration
Oversight of the Occupational Safety and Health Administration (OSHA) is
much like the EPA experience. OSHA's enabling statute has not as yet matured
into a clear statement of what Congress expects the agency to do. Congress' very
broad mandate to the agency to assure "so far as possible every working man and
woman in the nation safe and healthful working conditions" (84 Stat. 1590, 1970),
has the potential for imposing great costs on industry. Business groups and their
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allies in Congress have been highly critical of OSHA regulatory activity. From
the creation of OSHA in 1970 until 1981, oversight of the agency was dominated
by complaints of businesses about its regulations and inspections. OSHA was
widely criticized as the most unpopular regulatory agency. The agency's power to
impose criminal penalties is of particular concern to industry.
OSHA and EPA were prime targets of the Reagan administration's
regulatory review program. As a result, recent congressional oversight has
focused to a great extent on OMB's influence in OSHA rule making. Much of the
recent congressional criticism of OSHA has resulted from charges by labor and
other groups that the agency is failing to protect worker health and safety.
But congressional staff members have expressed frustration at their inability
to push the agency to be more aggressive in regulating workplace hazards. As one
put it, "When we talk to OSHA they say, 'We don't care what you say, go ahead and
criticize us. Go ahead and cut our budget--you are always trying to get us to do
more.' We kind of threaten to write the regulations but we don't have the
expertise."
Oversight has had an impact on OSHA in some areas. The ability of
organized labor and other groups to graphically demonstrate occupational hazards
by bringing victims of accidents and illnesses before congressional committees has
generated publicity that has prodded the agency to take action. In other cases,
such as the farm workers' sanitation rule, Congress has been frustrated by agency
inaction. Much of the Senate's interest has been directed toward inspections and
staffing, topics of interest to constituents. OSHA operates under a permanent
authorization, and the act has not been amended since 1970. As a consequence,
Congress has not been able to use reauthorizations to pressure the agency or to
instruct and direct it through statutory changes. OSHA-congressional committee
tension has been greatest with the oversight and investigations subcommittees of
the House Government Operations and House Energy and Commerce Committees
rather than with the authorizing committees.
Congressional staff members also indicate that OSHA changed under former
Secretary of Labor Bill Brock and OSHA head John Pendergast, in contrast to its
functioning under Labor Secretary Ray Donovan and OSHA head Thorne Auchter
in the early 1980s. As one staff member put it, "OSHA is different under
Pendergast. He is of the Brock school--diplomatic, knowledgeable of political
reality--as opposed to earlier people who were less conscious that Congress was an
equal branch." OSHA's office of legislative relations, according to an OSHA
official, makes some effort to "keep committees informed of major rule makings
and enforcement actions. The Department of Labor sends a daily package of
material to 150 Hill staffers--news releases, documents--then they decide what
they are interested in." But oversight "is adversarial. Hearings vary in quality
and thrust. There may be positive examples of oversight, but nothing comes to
mind." After further discussion, however, the OSHA official cited a few examples
where oversight was "productive." In one case, he noted,
OSHA had been petitioned to do an emergency temporary standard
for AIDS by health care and public employee unions. OSHA was
trying to decide how to deal with AIDS, and an upcoming hearing gave
OSHA a deadline. By the time of the hearing OSHA had an
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announcement for a plan to deal with AIDS that was acceptable to
the chairman.
(A House committee staff member also cited this as an example of good OSHA-
congressional relations.)
In another case, hearings on the Iowa Beef Company were held where the
exchange was considered healthy. The Committee wanted us to inspect the entire
company's operations," the OSHA official said. "We explained how resource-
intensive that was, and they agreed. We set up a more limited inspection.
Oversight can be productive."
The Consumer Product Safety Commission
The Consumer Product Safety Commission (CPSC) has been widely criticized
in Congress. Consumer groups have been able to keep the Commission as an
independent body in the face of attempts to either abolish it or put it in the
Commerce or Health and Human Services Departments.
As business groups have successfully lobbied Congress to restrain the
Commission, Congress has weakened the agency by reducing its budget and staff
and limiting its powers. In 1981, the agency's staff was cut by 27 percent, and its
budget was cut by 30 percent from the Carter administration's recommendation.
In 1981, Congress amended the Commission's enabling statute to require that it
take all possible steps to encourage industry to develop voluntary standards before
imposing its own mandatory ones. Congress also provided for a one-house
legislative veto of Commission rules (later invalidated by the Chadha decision),
and has, by statute, ordered the agency to change some regulations and issue
others with certain provisions. As a result, the CPSC is no longer the target of
industry ire. It has not issued a product safety rule since 1984, and its primary
efforts are directed to helping industry develop voluntary standards.
But the Commission has come under criticism from liberals and even some
conservatives for doing too little. Consumer groups have called on Congress to
pressure the agency to take a more aggressive stance in protecting children from
dangerous toys and regulating other hazardous items. There was an ongoing battle
between the Chairman and the two commissioners over the way the Chairman was
managing the agency and Congress withheld funding for salaries of two of the five
commission members, pending resolution of commission conflicts.
Oversight of the CPSC, like that of the other environmental safety, and
health regulatory agencies is primarily a function of Congress' perception of what
the agency is supposed to be doing and the criticisms of agency activity raised by
groups that lobby Congress.
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There are few conclusions to draw from these specific regulatory agency
examples, but there are some common threads. In general, if Congress is
bombarded by complaints that an agency is too aggressive, oversight activity is
aimed at reigning in the agency. Conversely, when the agency is charged with
being ineffective, oversight seeks to push the agency to take a more aggressive
stance. Given the nature of its powers over regulatory agencies, Congress is
generally more able to restrain an agency from taking new regulatory action than
to direct it to take on new regulatory tasks.
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CHAPTER FOUR
CONCLUSIONS AND RECOMMENDATIONS FOR
IMPROVING CONGRESSIONAL OVERSIGHT OF REGULATORY AGENCIES
The more the executive branch recognizes and accepts the legitimate role of
Congress in overseeing its activities, the more likely that oversight relations will
be productive. At the same time, members of Congress should find the time
required to develop expertise in the programs under their jurisdiction and the
patience to pursue investigations and studies that sometimes take months and
even years. Most important, members of Congress and executive branch officials
need to see oversight not as a peripheral activity, as second-guessing agencies, but
as the foundation of good legislation and, thus, effective public policy.
As Congress evaluates the structure of regulatory statutes and agencies it
has created, oversight initiatives can be at the heart of the process. In a complex,
rapidly changing world, oversight provides continuing opportunities to reexamine
the regulatory framework Congress has put in place.
Oversight, like every other activity, will never meet everyone's
expectations. Nevertheless, Congress, the president, OMB, and regulatory
agencies can take a number of steps that hold some promise for improving
oversight.
BALANCED OVERSIGHT
The separation of powers is the essential constitutional underpinning for
oversight, but interpretations of that separation differ. From one perspective, the
separation of powers is inherently adversarial, particularly when different
political parties control the two branches. From another view, the separated
institutions are designed more to bring different perspectives to bear on common
concerns than to block proposed actions. While there is a general division of
legislative and executive labor, this view recognizes that both branches make and
implement complex public policy together.
The more that congressional-executive relations approximate this second
model, the more likely that oversight can take place in a constructive atmosphere
and can focus on broader issues designed to improve statutes and their
implementation. Such an atmosphere fosters trust, prompting Congress to
delegate more discretion and flexibility to agencies and to the president.
It is in the interest of both branches, as well as of the nation, to improve
relations and reduce the tension that leads to policy impasses. If, however, one
branch is content with deadlocks, for whatever reason, then the other branch has
little recourse but to encourage compromises. Conversely, the more Congress
knows about what goes on in the executive's oversight activities, the more likely it
will be willing to work with the president to pursue common goals.
Ideally, oversight will proceed in an atmosphere of restraint. Executive and
legislative branch officials will be committed to the rule of law; agency heads
will ensure a faithful execution of the laws; and members of Congress and their
staffs will be less likely to become so involved in the details of administration
that agency managers cannot function effectively.
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While it is tempting to use the administrative process to gain what was not
achieved in the legislative process, government cannot function without full
acceptance of the rule of law and an unqualified commitment of executive branch
officials to execute faithfully the laws enacted by Congress. On the other hand,
Congress has an obligation to enact laws with achievable goals and to refrain from
provisions which unnecessarily constrict administrators in implementing those
goals. If Congress, the president, and the agencies constantly seek to strike a
balance in lawmaking, administration, and oversight, then effective oversight is
possible; if that accommodation is lacking, then no set of structures and
procedures will be able to effectively channel that interaction into productive
activity.
The primary value that regulatory agency oversight can foster is
accountability of unelected officials to elected representatives for the
administration of laws. Accountability must compete with other values, for
example, the time and resources Congress expends in oversight activities are not
available for other elements of the legislative process, including writing
regulatory statutes. Agency time and resources expended in responding to
oversight requests and demands are not available to improve management, sponsor
research, conduct enforcement, or pursue the myriad of other tasks that are part
of the mission of regulatory agencies.
While tension and conflict have become more common, the benefits of
oversight are still threatened, in the case of some agencies, by congressional-
executive relationships that are too close and mutually accommodating.
Oversight that lacks willingness to scrutinize agencies critically is also a problem
that both branches must avoid. The most visible and controversial expressions of
oversight have been the adversarial ones, yet the excessively close ties between
some agencies and congressional committees are in just as much need of
adjustment.
Oversight may improve decision making through a second (or third) look at
agency action, but it may also cause unnecessary delays. Much oversight is
directed towards individual regulations and agency decisions, and oversight may
provide an opportunity to individuals and groups affected (or expected to be
affected) to have an action reversed or softened. While such demands may
deserve consideration, they may also weaken the consistency and fairness of a
statute's application, resulting in policies which are less efficient and effective,
and which impair the ability of the policy-making process to address important
concerns.
The key is how to balance oversight efforts so that congressional purposes
and information needs can be pursued, and administrative excesses remedied
without permitting interests that should comply with appropriate policy
requirements to escape compliance. No formula or structure guarantees that such
a balance will be struck; an open process and a continuing examination of that
balancing are all that may be possible.
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Having reached these conclusions based on the materials provided and the
discussions at its meetings, the Academy Panel on Congressional Oversight of
Regulatory Agencies makes the following recommendations.
(1) We recommend that Congress and the executive seek to develop a balance in
their oversight relationships which avoids excessive antagonism, at the one
extreme, or capture, at the other. Oversight relationships must be sufficiently
adversarial to ensure that programs are scrutinized and evaluated, but must be
sufficiently accommodating to permit efficient and effective government.
This recommendation is quite general, but we are convinced that effective
oversight cannot be reduced to a mechanical formula or recipe; it relies on the
goodwill and shared commitment of both branches. We do not believe that
political differences must be eliminated for oversight to work: in fact, a vigorous
debate over the direction of public policy is both essential and desirable. It must
be balanced, however, with a recognition of the need for a minimum level of
cooperation and common ground so that government can function.
Oversight has been particularly controversial for the newer "social"
regulatory agencies that deal with environmental, health, safety, and consumer
regulation. These agencies have broad statutes whose provisions delegate much
discretion to agencies to make basic policy choices. These statutes have not yet
matured into clear, generally accepted standards for private conduct and agency
jurisdiction and powers. As a result, the political environment in which these
agencies function is often more contentious than that of the older regulatory
agencies; the complaints of the regulated industries about over-regulation and the
demands of public interest groups for more regulation collide in Congress and in
the agencies.
The environment in which oversight of regulatory agencies takes place could
be improved if OMB further addresses congressional concerns about its role in
reviewing agency regulations. OMB could avoid some congressional criticisms by
taking further steps to ensure compliance with relevant statutory guidance and
agreements previously reached. OMB officials could also reduce conflict with
Congress if they placed more of their comments on the formal rule-making record
rather than relying on telephone and other off-the-record communications, and if
they met more often with members of Congress and their staff to explain how the
review process is working and what major changes in agency submissions OMB is
seeking.
Congress has already spent considerable time grappling with the role of OMB
in reviewing regulations. In 1982, the Senate passed S. 1080, which would have
provided by statute the basic elements of a regulatory review process, but the
House did not bring its own version to a vote. In 1986, Congress reauthorized for
three years certain activities of OMB's Office of Information and Regulatory
Affairs and placed some restrictions on its operations. Given the importance of
OMB's review activities and its role in stimulating demands for more oversight of
regulatory agencies, Congress could do much to alleviate the conflicts by directly
addressing the regulatory review process through authorizing legislation.
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(2) . We recommend that Congress determine whether there should be a
regulatory review process in OMB and, if so, prescribe by statute the scope,
limits, and procedures to be followed. OMB should insure that members of
Congress are able to monitor its review of agencies so that misunderstandings and
conflicts are minimized.
Congress can take two important additional steps to provide more guidance
to regulatory agencies, particularly the new, social regulatory agencies, that
would, when combined with careful oversight, contribute to a more effective
policy process.
(3) We recommend that Congress ensure that regulatory statutes strike a
balance between detailed provisions and the need for administrative discretion.
Statutes should make the basic policy choices concerning the risks, benefits, and
costs of regulatory alternatives.
Oversight is most likely to contribute to regulatory agencies' statutory
purposes if it is tied to objectives that are clearly defined by law. Authorization
and appropriations legislation and processes should be coordinated to assure as
much as possible, that they are consistent and donot duplicate one another.
Congress should avoid writing overly prescriptive language into statutes and,
instead, should rely on effective oversight to ensure that executive branch actions
are consistent with the intent of Congress. Much of the contentiousness that
characterizes oversight can be traced to the gap between statutory mandates and
the resources available to agencies. The two branches then disagree over the
priorities to be pursued by the agency in using its scarce resources.
(4) We recommend that Congress set performance goals for regulatory programs
that provide a better match between those goals and the resources likely to be
available for implementation. Similarly, the executive branch should suggest to
Congress ways of better matching goals and resources.
Funds are rarely available to regulatory agencies to pursue every problem
that could possibly fall within their jurisdiction. Not only must regulatory
agencies compete with one another and with other agencies for funds, but
Congress may further limit appropriations because of uncertainty concerning the
costs and benefits of regulatory tasks, particularly when these tasks are first
assigned. Nevertheless, it is in Congress' interest to make the political judgments
inherent in setting the priorities that determine the basic direction of an agency.
Approaches to Oversight
Oversight can be approached in either of two ways. The first is narrowly
focused, ad hoc and episodic. It can highlight problems and, while it may
embarrass agency officials, may also be the only way to get their attention and
get information out to Congress and the public. Administrators are naturally
critical of this kind of oversight. So too are many members of Congress, who do
not believe television cameras should have to be present to get the attention of
agency officials, or counter OMB's influence.
Ad hoc oversight, while valuable, falls short of addressing the most
important problems with administrative rule making. It limits administration
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discretion, but may not help agencies set priorities, balance conflicting goals and
purposes, or determine how to allocate scarce resources. Agency agendas come to
be defined by court orders and specific statutory directives and deadlines rather
than through explicit congressional-executive attempts to make judgments about
what problems can and should be given priority.
More systematic congressional inquiries, the second kind of oversight, seek
to evaluate general program performance. In its purest form, this oversight is
comprehensive, examining specific instances of how laws are being implemented
and the statutory framework in which agencies operate.
When Congress employs oversight to set priorities, allocate resources, and
make basic policy choices--rather than to influence specific agency decisions--it
increases the likelihood that its legislative purposes will be achieved. Agencies
need broad guidance, particularly since agency authority and jurisdiction often
greatly exceed available resources, not detailed statutory provisions. Insofar as
possible, the political and policy debate ought to take place at the beginning of
the policy-making process, not left to arise when policies that are made by
administrators are finally applied and arouse resistance.
(5) We recommend that Congress increase oversight which evaluates the
appropriateness of regulatory statutes and the effectiveness of administrative
procedures to implement them. While, on occasion, ad hoc oversight may be the
only feasible approach, Congress needs to concentrate on a systematic, long-term
analysis of laws and programs. Ad hoc oversight should be integrated with this
work.
The aims of comprehensive oversight should be to provide more explicit
guidelines to agencies for identifying and balancing costs and benefits in
regulatory decisions, to resolve conflicts and overlaps in administrative
responsibilities and jurisdictions, and to give more direction to agencies in the
development of priorities and allocation of resources.
This, too, is a broad prescription. As with the first recommendation, it
emphasizes the importance of balance in oversight that cannot be achieved by any
specific set of steps or a structure, but has to grow out of a general acceptance of
the purposes of oversight. Several years ago the Senate showed some interest in
"sunset" provisions that would terminate laws and programs unless Congress
expressly renewed them after a periodic review. We believe that any such rigid
requirement would be undesirable. Many agencies and programs are now renewed
annually, consequently receiving only a superficial review.
(6) We recommend that each Congress approve by resolution an oversight
agenda of comprehensive, rotating examinations of regulatory legislation and its
implementation. Agencies should be required to submit their analyses of the
appropriateness of relevant statutes, their capacity to carry out their mandates,
and any recommendations for amendments.
Congress and the executive can do much more to reorient oversight towards
a consideration of the adequacy and appropriateness of the statutory framework
under which agencies operate. Agencies can also use this opportunity to indicate
to Congress what priorities they have developed and how they plan to allocate
their scarce resources in pursuing their statutory mandates.
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(7) We recommend that Congress resist the use of the appropriations process to
make substantive changes in agencies' authority or structure and, instead, make
such changes through authorizing legislation. If, nonetheless, appropriations riders
are used, the appropriations and authorization committees should endeavor to
agree on any desirable amendments to the underlying statute before the next
year's appropriations are enacted.
Given the greater difficulties in getting authorizing legislation passed in
Congress, the reliance on appropriations bills is understandable. But
appropriations riders have significant disadvantages, among them lack of
coordination with authorizing committee-enacted statutes.
Resources for Oversight
House and Senate leaders and committee chairs can do much to provide
incentives for more systematic, comprehensive oversight. They can better
integrate work by more clearly defining the relationship between the
governmental affairs/government operations, appropriations, legislative and
budget committees. They can influence or direct the allocation of resources and
other benefits that encourage (or discourage) oversight.
Leaders must choose carefully the areas for administrative activity
oversight, to assure that limited resources are wisely used. Committees must find
ways to retain experienced staff and give them the resources and time to examine
the implementation of large and complex policies. They must effectively
integrate the findings of their own investigations with those by other committees
and congressional support agencies; follow oversight hearings with inquiries and
studies; and assure that reauthorization and other legislation is informed by
oversight findings and conclusions.
(8) We recommend that Congress revise its process for funding its committees'
oversight operations so that a significant proportion of resources is allocated in
response to committee proposals for systematic evaluation of specific statutes,
agencies, and programs.
Funding some oversight activity on a project-by-project basis would be a
significant departure from current practice. Committees would still receive a
general appropriation to conduct their business, but the Senate Rules and
Administration and House Administration committees would set aside funds for
special oversight projects proposed by the other committees. Ideally, committees
would establish their oversight agenda (as suggested earlier) the December after
each election and the Senate and House administrative committees could accept
requests for these funds in January. The House already meets in December to get
organized, while the Senate traditionally does not. House and Senate leadership
should meet with the administrative committees to establish guidelines for
awarding these funds and to ensure strong leadership support for the idea.
Coordinating Oversight in Congress
Congressional leaders, committees, and support agencies can do much to
increase the likelihood that oversight efforts utilize scarce resources efficiently
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and effectively. Overlaps among authorizing, appropriations, governmental
affairs/government operations, and budget committees should be creatively
exploited so they can serve as a check on insufficiently vigorous oversight. But
their plans and activities should be coordinated to ensure that all agencies and
programs are reviewed regularly and that each committee benefits from the work
of the others. In a few cases, the overlaps can pose difficulties for agencies that
must respond to a myriad of overseers.
(9) We recommend that in each committee, the chair and subcommittee chairs,
ranking minority members, and their top staffs should meet at the beginning of
each session of Congress to establish a formal oversight agenda, including a
schedule of programs to be reviewed, and the assignment of subcommittee and
staff responsibilities.
(10) We recommend that chairs and ranking minority members of committees and
subcommittees that share jurisdiction over agencies consult with each other and
with the leadership of each house at the beginning of each session to coordinate
respective agendas accordingly.
The oversight agenda of committees will ultimately be affected by events
that are difficult, sometimes impossible, to foresee. Improved planning can,
however, increase the likelihood that some of the most important issues are dealt
with, and that systematic oversight of statutes and their implementation is
pursued. Such oversight agendas are, of course, subject to change as specific
problems develop to which committees must respond. However, a more
systematic approach to oversight should still allow committees to have the
flexibility to respond to these problems while at the same time keeping track of
broader concerns. To develop their oversight plans, committees might take a
number of additional steps. Two steps, recommended below, would be particularly
useful.
(11) We recommend that at the beginning of each Congress, committee and
subcommittee chairs and ranking minority members from both chambers meet
with the agency heads under their jurisdiction to exchange views about those areas
of agency activity that should be the focus of specific oversight efforts or
additional congressional direction. The committee leadership should consult also
with groups affected by or otherwise interested in the relevant agencies.
(12) We recommend that Congress encourage coordination of and follow-up to
oversight activities by requiring that: committees or subcommittees prepare a
report for each oversight project; agencies be required to inform the committee
of actions taken or planned on recommendations; and those reports and agency
responses be circulated to all relevant House and Senate committees.
Central to these recommendations is the recognition that oversight is most
likely to be effective if majority and minority members agree on what is to be
done and present a united position, particularly when party control is divided.
Oversight and investigation subcommittees need to work closely with their
legislative counterparts to have the most impact. House rules require that
oversight findings and recommendations be included in the committee reports
accompanying all authorization and appropriations bills. This kind of close
cooperation is particularly important in the House, since most Senate committees
do not have separate oversight subcommittees.
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Oversight activities will much more likely lead to improved legislation and
administration if agencies know that Congress will follow up on past work and
require that changes be made, when appropriate, in agency practices. By law,
agencies are required to report, after a set time period, to appropriate
congressional committees, their actions taken in response to GAO
recommendations. A similar requirement could be enacted for committee
oversight recommendations.
Oversight Staff
Qualified staff are essential to effective oversight. The Congressional
Management Foundation's recent study of congressional staff warned that high
turnover and salaries that lag behind comparable executive branch and private
sector jobs threaten the effectiveness of Congress.
Training programs for staff members such as those provided by the
Congressional Research Service, are essential for effective oversight. Also useful
are staff visits to, or temporary assignments at the executive branch agencies on
whose programs they work. All of these efforts are especially important for
appropriations subcommittees, where staffs are small, given the range of agencies
covered.
(13) We recommend that committees encourage staff members to develop a
thorough understanding of the agencies for which they are responsible, establish
more executive-legislative staff exchange programs, and recruit individuals with
executive branch experience for staff positions.
There is some danger that such initiatives will end up insulating programs
from careful review and fostering cozy relationships; but that is a risk worth
taking. We believe that such an exchange will, in the long run, be beneficial to
agencies by helping them to understand better congressional interests and
concerns, and to Congress, by helping members and staff understand better the
challenges administrators face.
Oversight Activities of the General Accounting Office
The GAO assists Congress in oversight, and plays a particularly useful role in
conducting audits and evaluations of areas not addressed by congressional
committees. There are several steps that Congress could take to enhance the
contribution GAO makes to congressional oversight. For example, GAO now
meets periodically with numerous committee staffs on specific projects and to
discuss each others' agendas, but such meetings could be more frequent and with
more committees. This is not meant to discourage ad hoc oversight, but to
provide incentives and resources for more systematic oversight to complement the
more problem-specific efforts.
(14) We recommend that committee and subcommittee chairs and ranking
minority members meet more regularly with GAO officials to help establish the
committee's oversight agenda and coordinate the activities of the committee staff
and the GAO.
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Congress also should assure that GAO has sufficient resources to carry out
its own oversight agenda as well as to respond to congressional requests. This
requires that Congress provide an adequate budget for the GAO, and that scarce
GAO resources be carefully used by Congress. For example, the chairman of the
House Post Office and Civil Service Committee now approves subcommittee
requests to GAO. This practice could be extended to other committees.
Program Evaluation and Oversight
The amount of systematic review and evaluation of programs that Congress
and its support agencies can do is limited. With the recent decline in agency-
conducted evaluations, Congress must also encourage executive branch efforts to
evaluate the management and effectiveness of federal programs. In an era when
competition for funding is fierce, Congress needs to have information generated
through program evaluations.
(15) We recommend that Congress ensure that agencies engage in more thorough,
systematic, and comprehensive evaluations of the programs they administer by:
earmarking funds for program evaluation; providing in authorizing statutes
criteria by which to measure program effectiveness; and setting deadlines for
submitting evaluation reports to committees.
Setting aside funds for program evaluation may appear to some to be a
luxury, and pressure to reduce discretionary spending is likely to be aimed at
program evaluation funds, but we are convinced that the benefits of program
evaluation far exceed their costs. Precisely because budget constraints are so
severe, Congress should provide for more program evaluation to assist it in making
the difficult decisions about which programs should be expanded and contracted.
Many of the recommendations outlined above require the involvement and
support of the president and regulatory agencies. Oversight efforts by Congress
cannot effectively evaluate existing statutes and their implementation without
the commitment of executive branch officials to improved executive-legislative
branch communication and cooperation. Congress also needs to be realistic in its
expectations for implementing the laws. While the primary focus of the
recommendations above is on Congress, presidents, their staffs, and the agencies
can do much to contribute to effective oversight if they recognize Congress as a
partner in the policy-making process.
The wider the chasm between the executive and legislative branches, the
less oversight will be able to bridge the gap. Certain Reagan administration
officials have challenged traditional interpretations of laws and agency
implementation of those laws. Appointees to regulatory agencies have expressed
disagreement with and even hostility towards the statutes they are expected to
carry out. The president has established goals that sometimes have resulted in
actions by his subordinates which critics charge have conflicted with existing
laws. The OMB has persuaded Congress to accept cuts in funding and personnel
levels (even as Congress has delegated new powers and responsibilities to
agencies) and has encouraged agencies to avoid taking new regulatory initiatives
even though their enabling statutes require aggressive agency actions.
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In response to concerns of executive branch opposition to congressional
priorities and objectives that predate the Reagan era, Congress has made some
laws much more detailed and specific, and then used oversight hearings and
investigations to find cases where the provisions of these laws have not been
satisfied. Oversight as a means of altering presidential policies obviously has its
limits. While there may not be much to be done to further mend congressional-
executive relations in the Reagan administration, the next administration will
have an opportunity to learn from the experience of this and previous
administrations and to avoid some of the difficulties and misunderstandings that
have hampered the two branches from working together.
(16) We recommend that the next president take steps to foster good
communication and cooperation by OMB and regulatory agency officials with
Congress in monitoring the implementation of regulatory statutes, including
emphasis on the need for compliance with the spirit and letter of the laws.
(17) We recommend that agencies themselves ensure good cooperation and
communication with the Congress and full compliance with enabling statutes.
They should make suggestions for: areas of agency activity and statutes that
would benefit from oversight proceedings; needed statutory improvements; and
priorities for regulatory actions. Agencies should also seek budgets sufficient to
achieve the tasks Congress has delegated to them.
In practical terms, agencies can do much to diffuse tension by ensuring that
Congress is not surprised by agencies' actions and by engaging members in
discussions of policy choices rather than simply announcing decisions. Routine
reporting processes associated with the president's budget and legislative requests
to Congress should be supplemented as needed throughout the year.
Agencies that develop means of keeping congressional agencies abreast of
regulatory initiatives are less likely to be attacked in oversight hearings and
investigations. Some communication already takes place through OMB's annual
publication, Regulatory Program, but it should be supplemented with a regular
reporting of agencies' general priorities and major initiatives in rule making,
enforcement, and other areas of activity. Congress should be provided timely
notice of agency plans.
(18) We recommend that agencies keep congressional committees fully informed
of all major regulatory initiatives, including regulations, major enforcement
actions, and any significant departures from past administrative or regulatory
practices.
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Aberbach, Joel. Congress and the Bureaucracy. Forthcoming.
Advisory Commission on Intergovernmental Relations. Regulatory Federalism:
Policy, Process, Impact and Reform. Washington: ACIR, 1983.
Alviani, John. "Federal Regulation: The New Regime." Environmental Affairs
vol. 9 (1980): 285.
American Enterprise Institute. Government Regulation: Proposals for Procedural
Reforms. Washington: AEI, 1979.
Bingham, Gail. Resolving Environmental Disputes: A Decade of Experience.
Washington: Conservation Foundation, 1986.
Bruff, Harold and Ernest Gellhorn. "Congressional Control of Administrative
Regulation: A Study of Legislative Vetoes." Harvard Law Review vol. 90
(1977): 1369.
Burns, James MacGregor. Congress on Trial: The Legislative Process and the
Administrative State. New York: Gordian Press, 1949.
Carter, Lief. Administrative Law and Politics. Boston: Little Brown, 1983.
Cooper, Joseph and Patricia Hurley. "The Legislative Veto: A Policy Analysis."
Congress and the Presidency vol. 10, no. 1 (1983).
Cutler, Lloyd and David Johnson. "Regulation and the Political Process." Yale
Law Review vol. 84 (1975): 1395.
Davidson, Roger and Walter Oleszek. Congress Against Itself. Bloomington:
Indiana UP, 1977.
Davis, K. C. Discretionary Justice. Chicago: Illinois UP, 1969.
DeConcini, Dennis and Robert Faucher. "The Legislative Veto: A Constitutional
Amendment." Harvard Journal on Legislation vol. 21 (1984): 29.
Dodd, Lawrence and Richard Schott. Congress and the Administrative State.
New York: Wiley, 1979.
Eads, George and Michael Fix. Relief or Reform? Reagan's Regulatory
Dilemma. Washington: Urban Institute Press, 1984.
Energy and Environment Study Institute. "Statutory Deadlines in Environmental
Legislation: Necessary but Need Improvement." Washington, 1985.
Fiorina, Morris. Congress: Keystone of the Washington Establishment. New
Haven: Yale UP, 1978.
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"Congressional Control of the Bureaucracy: A Mismatch of Incentives and
Capabilities." in Lawrence C. Dodd and Bruce Oppenheimer. Congress
Reconsidered. Washington: Congressional Quarterly Press, 1981.
Fisher, Louis. The Politics of Shared Power. Washington: Congressional Quarterly
Press, 1987.
"Legislative Vetoes Enacted after Chadha." Washington: Congressional
Research Service, 1987.
Galloway, George. Congress at the Crossroads. New York: Thomas Y. Crowell,
1946.
Gellman, Barton. "Hill is Advised to Rewrite 'Legislative Veto' Laws."
Washington Post 20 Jul. 1983.
"Administration Tiptoes on Legislative Veto." Washington Post 21 Jul. 1983.
Goldwin and Kaufman. The Separation of Powers--Does It Still Work?
Washington: American Enterprise Institute, 1986.
Haas, Lawrence J. "Unauthorized Action." National Journal 2 Jan. 1988: 17-21.
Heymann, Philip B. The Politics of Public Management. New Haven: Yale UP,
1987.
Hunter, Robert E. and Wayne L. Berman, eds. Making the Government Work:
Legislative-Executive Reform. Washington: Georgetown Center for
Strategic and International Studies, 1985.
Kaiser, Fredrick. "Congressional Action to Overturn Agency Rules: Alternatives
to the Legislative Veto." Administrative Law Review. (1980): 67.
Kirschten, Dick. "Reagan: No More Business as Usual" National Journal. 21 Feb
1981: 300.
Klonoff, Robert. "The Congressman as Mediator Between Citizens and
Government Agencies: Problems and Prospects." Harvard Journal on
Legislation vol. 16 (1979): 1.
Levitas, Elliott and Stanley Brand. "Congressional Review of Executive and
Legislative Actions After Chadha: The Son of Legislative Veto Lives On."
Georgetown Law Journal vol. 72 (1984): 801.
Litan, Robert and William Nordhaus. Reforming Federal Regulation. New
Haven: Yale UP, 1983.
McCubbins, Matthew D. and Thomas Schwartz. "Congressional Oversight
Overlooked: Police Patrols versus Fire Alarms." American Journal of
Political Science vol. 28 (Fall): 165-79.
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National Academy of Public Administration. Presidential Management of
Rulemaking in Regulatory Agencies. Washington, Jan. 1987.
Ornstein, Norman J. Thomas E. Mann, Michael J. Malbin, and John F. Bibby.
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1982.
---. Vital Statistics on Congress, 1987-88. Washington: Congressional Quarterly
Inc., 1987.
Pianan, Eric. "Bleak House," Washington Post, National Weekly Edition,
December 7, 1987. p. 32.
Pyle, Christopher and Richard Pious. The President, Congress, and the
Constitution New York: Free Press, 1984.
Russakoff, Dale. "Clark Confirmation Hits Snag in Senate." Washington Post 16
Nov. 1983.
Scalia, Antonin. "The Legislative Veto: A False Remedy for System Overload."
Regulation November/December 1979: 19-26.
Schick, Allen. "Congress and the 'Details' of Administration." Public
Administration Review September/October 1976.
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Kennedy, Making Government Work. Boulder, CO: Westview Press, 1986.
72-107.
Starobin, Paul. "FCC and Congress Clash Over Proper Roles." Congressional
Quarterly Weekly Report 27 February (1986): 479-84.
Strausser, Steven. "Stumbling at the Summit." Newsweek November 30 (1987):
22-3.
Struck, Myron. "White House has had Problems in Getting Some Nominees
Approved." Washington Post 11 October 1983.
Sundquist, James. The Decline and Resurgence of Congress. Washington:
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---. Constitutional Reform and Effective Government. Washington: Brookings
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Tolchin, Susan, and Martin Tolchin. Dismantling America: The Rush to
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U.S. Cong. House. Clerk. Reports to be Made to Congress. Washington: GPO,
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U.S. Cong. House. Committee on Energy and Commerce. EPA Asbestos
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U.S.
Cong. House. Committee on Government Operations.
OMB Interference
with OSHA Rulemaking. Washington: GPO, 1983.
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Management and Budget Influence on Agency Regulations. Washington:
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U.S.
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Recommendations and Findings of the Study on Federal
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Washington: GPO, 1977.
U.S. Cong. Senate. Committee on Governmental Affairs. Office of Management
and Budget: Evolving Roles and Future Issues. Washington: GPO, 1986.
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Practice and Procedure. Oversight of Civil Aeronautics Board Practices and
Procedures. Washington: GPO, 1975.
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Committees and Subcommittees of Interest to EPA." Washington: GPO,
1987.
U.S. General Accounting Office. "Improved Quality, Adequate Resources and
Consistent Oversight Needed If Regulatory Analysis is to Help Control Costs
of Regulation." Washington: GPO, 2 Nov. 1983.
U.S. GAO. Comptroller General's Annual Report. Washington: GAO, 1986.
U.S. GAO. "Cost-Benefit Analysis Can Be Useful in Assessing Environmental
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U.S. Office of Management and Budget. Regulatory Program of the United
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Richard Bolling was a Member of Congress from 1949 to 1983 representing the 5th
Congressional District of Missouri. He was the Chairman of the House Committee
on Rules which considers all major legislation before it goes before the full House
of Representatives for debate and vote. He was a leader in the fight for
Congressional reform, and chaired the House Select Committee on Committees in
1973-4. He is currently engaged in writing a book analyzing past and present
American governments and proposing essential modernizations of American
institutions.
Roger Davidson is Professor of Government and Politics, University of Maryland.
Prior to that, he was a Senior Specialist in American National Government and
Public Administration, Congressional Research Service, Library of Congress.
Previously, he taught at Dartmouth College and the University of California at
Santa Barbara. He also served as a staff member of the House Select Committee
on Committees, was a special research consultant to the Temporary Select
Committee to Study the Senate Committee System, and is the author of numerous
publications on legislative issues.
Patricia Florestano is Vice President for Governmental Relations, University of
Maryland. Prior to that, she was Director of the Institute for Governmental
Service, and Assistant Professor of the Institute for Urban Studies at the
University of Maryland. She served as Staff Assistant to the President of the
Maryland Senate, and as Research Associate for the Maryland Governor's
Commission on Functions of Government, and as researcher for the Maryland
Legislative Commission on Intergovernmental Cooperation.
Scott Fosler has been Vice President, Committee for Economic Development
(CED), since 1979 and has been Director of Government Studies since 1974. He is
also a Senior Fellow at the Institute for Policy Studies of the Johns Hopkins
University. He was Assistant to the Executive Director, National Commission on
Productivity from 1973-74. From 1969 to 1973, he was Senior Staff Member at
the Institute of Public Administration. He was a member of the Montgomery
County (Maryland) Council from 1978 through 1986.
Herbert Jasper is Senior Associate, McManis Associates, Inc. Before that, he was
Executive Vice President, Ad Hoc Committee for Competitive
Telecommunications. His experience in the executive and legislative branches
includes service in the Congressional Research Service, the General Accounting
Office, the Office of Legislative Reference and the Government Organization
Branch, Bureau of the Budget. Mr. Jasper also served as consultant on budget
reform to two Senate Committees and as Executive Secretary of the President's
Task Force on Government Reorganization.
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Allen Schick has been Professor, School of Public Affairs, University of Maryland,
since 1981. From 1972 to 1981, he was Senior Specialist at the Congressional
Research Service, where he specialized in Congressional budget issues and
provided principlal staff support on legislation such as the Congressional Budget
and Impoundment Control Act of 1974. From 1968 to 1972, he was Research
Associate and Senior Fellow at the Brookings Institution. He taught government
at Tufts University from 1961 to 1968. In 1967, Dr. Schick was staff associate for
the President's Task Force on Government Organization.
James Sundquist was a Senior Fellow with the Brookings Institution from 1965
until 1985. He is now Senior Fellow Emeritus. He directed the Brookings
Governmental Studies Program from 1976-78. He has been a deputy
undersecretary of Agriculture and has experience as an administrative assistant in
the United States Senate, as well as in the Bureau of the Budget. Mr. Sundquist
has written extensively on post-World War II politics and policy making.
Susan Tolchin is lead professor at George Washington University in the field of
executive, legislative, and regulatory management and specializes in federal
regulation. She teaches legislative management, public policy formulation, and
federal government administration. Dr. Tolchin is a nationally recognized expert
in the field of American government and politics. Her books, which have been
widely cited in newspapers, journals and Supreme Court decisions, include Buying
in America - How Foreign Money is Changing the Face of our Nation; Dismantling
America - The Rush to Deregulate; Clout - Womanpower and Politics; and To the
Victor - Political patronage from the Clubhouse to the White House.
Richard A. Wegman is a partner with the law firm of Wegman & Hoff. He was
director of President Carter's Commission for a National Agenda for the
Eighties. He served as Chief Counsel and Staff Director of the Senate Committee
on Governmental Affairs, where he directed the preparation of six volumes on
various aspects of federal regulation. He also served as Chief Counsel to that
Committee's Reorganization Subcommittee. Mr. Wegman earlier served in the
Justice Department's Antitrust Division.
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Members of Congress:
Sen. David Durenberger
Sen. Carl Levin
Rep. Frank Horton
Rep. Ted Weiss
Katherine Cudlipp
Alan Edelman
Linda Gustitus
Chuck Harwood
Katherine Kimball
Paul Light
Harold Lippman
Curtis Moore
Nan Stockholm
Leonard Weiss
Michael Barrett
Steven Daniels
Tom Daniels
Gerald Dotson
Jan Edelstein
David Finnegan
Richard Frandsen
Christopher Goebel
James Gottlieb
William Donald Gray
Royce Griffin
Debra Ann Jacobson
William Jones
Gregory Lawler
Patrick McLain
William Roberts
Jack Shenendorf
Russell Smith
Rena Steinzor
James Barnes
Ronald Brant
Don Clay
Craig DeRemer
William Drayton
Daniel Fiorino
David Hawkins
Steven Jellnick
Henry Longest
Joan Platten
William Prendergast
Milton Russell
Steven Schatzow
Larry Snowhite
Lee Thomas
Marcia Williams
Mary Azcuenaga
Winston Moore
Michael Pertschuk
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Edward Fleischman
Charles Marinaccio
Charles Bowsher
Thomas Hagenstad
Harry Havens
Roger Sperry
Elmer Staats
Thomas Novotny
Walter Oleszek
Stephen Stathis
Representatives of interest groups, scholars, and others:
Edmund Frost Alan Morrison
Ernest Gellhorn Eric Olson
Robert Katzmann Robert Percival
William Megonnel Julie Van Egmond
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SELECTED ACADEMY PUBLICATIONS
The Constitution and the Administration of Government: Summary of Proceedings of the
1987 Academy Spring Meeting (1988)
Prospects for the Item Veto at the Federal Level: Lessons from the States (1988)
Welfare Reform Dialogue: Implementation and Operational Feasibility Issues (1988)
Strengthening the U.S.-Soviet Communications Process to Reduce the Risks of Misunder-
standings and Conflicts (1987)
Third-Party Government and the Public Manager: The Changing Forms of Government Action
(1987)
Presidential Management of Rulemaking in Regulatory Agencies (1987)
The Quiet Crisis of the Civil Service: The Federal Personnel System at the Crossroads (1987)
Professional Career Entry into the Federal Service (1987)
Equal Opportunity and Management Practices in NASA Headquarters: An Assessment and
Recommendations for Action (1987)
The Next Generation in the Management of Public Works: Getting Some of It Together (1987)
Improving Facilities Management for the U.S. Courts (1987)
Leadership in Jeopardy-The Fraying of the Presidential Appointment System (1985)
The Presidential Appointee's Handbook (1985)
Giants in Management (1985)
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National Academy of Public Administration
1120 G Street, N.W., Suite 540
Washington, D.C. 20005
[phone]
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