When Congress comes calling

Trumbo – a film that opened earlier this month about one of ten prominent Hollywood screenwriters and directors who refused to testify before the House Un-American Activities Committee (HUAC) in 1947 – has a lot to say about the current state of congressional oversight. 

First, witch hunting is not oversight.  Too much congressional oversight is driven by politics or ideology.  And Trumbo recounts one of the most chilling examples of the results of such wrong-headed motivations.

{mosads}Dalton Trumbo and his colleagues were hauled before HUAC to answer questions about communist influence in the American motion picture industry.  When they asserted their First Amendment rights to free speech and association, they were cited for contempt of Congress, tried, convicted and jailed.  Studio executives blacklisted them, along with others who failed to cooperate with HUAC, from future employment.  The blacklisting effectively continued into 1960, until one Hollywood studio and some courageous stars stood up and condemned the practice.

Around the same time, Wisconsin Sen. Joseph McCarthy (R) was conducting the similarly infamous Army-McCarthy hearings.  President Dwight Eisenhower opposed McCarthy’s vendetta against purported communism in the government and pursued a strategy of patiently waiting for McCarthy to bring himself down.  That strategy ultimately worked, through public ridicule by the widely admired journalist Edward R. Murrow and the devastating dressing down of the senator by committee special counsel Joseph Welch.  Welch’s famous question to McCarthy, “Have you no sense of decency, sir, at long last? Have you left no sense of decency?” helped lead the Senate to censure McCarthy in December 1954, but not before lives were destroyed.

Second,  Trumbo is a reminder of the broad scope and power of Congress’ investigative tools, and raises the question:  why are many members of Congress today increasingly unwilling or unable to access their robust toolbox for legitimate oversight purposes?  Investigating committees and their members must know the nature and scope of the formidable instruments, rules and mechanisms that support the institutional power of inquiry. These include the subpoena power; the power to grant immunity to compel testimony; the virtual absolute control of hearing proceedings; and even the contempt power. 

HUAC perverted and abused nearly all of these authorities.  But in its own warped way, HUAC also understood a fact that few members today seem to appreciate:  key to the success of most investigations is a credible threat of a meaningful consequence for a refusal to supply requested information in a timely fashion. 

Congress has a constitutional obligation to conduct legitimate, aggressive oversight.  To satisfy that obligation it need not instill fear, but it must command respect.  Rapid turnover in members and key staff, the imposition of term limits on chairpersons of House committees, and a widening, divisive ideological gap between the two political parties all weaken Congress’ ability to do so.  So, too, does Congress’s more general failure to maintain, and protect itself against challenges to, certain core constitutional responsibilities and powers.

The executive branch is well aware of Congress’s general timidity, and is taking increasingly aggressive steps to stymie lawful and appropriate congressional investigations.  At present, it appears that controversial disputes regarding committee needs for vital information can be forced by the administration into the courts for resolution, a recipe for intolerable delay that will undermine the efficacy of timely and effective oversight.

The Constitution Project’s 2009 report “When Congress Comes Calling” (and a forthcoming new update) provide guideposts for Congress and for the subjects of its investigations.  They describe how to carry out lawful and effective investigations, as well as the limits on those investigations and the rights and responsibilities of those called before them.  By adhering to this stricture, our government can be made more open, more efficient and more just.

Our democracy should not tolerate more Dalton Trumbos.  When Congress misuses its oversight powers, as it did with HUAC and the Army-McCarthy hearings, it usually takes public outrage to rein Congress in and the damage done might already be irreparable. Dalton Trumbo and so many of his colleagues learned that lesson the hard way.

But our democracy should similarly refuse to accept a Congress that cannot or will not properly check the executive branch.

We draw both of these lessons from Trumbo, and hope that Congress will heed them going forward whenever it comes calling.

Rosenberg is a former specialist with the Congressional Research Service, and the author of “When Congress Comes Calling: A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry.”  Sloan is the president of The Constitution Project, a bipartisan legal watchdog group based in Washington, D.C.