Last month, the Supreme Court agreed to hear a case to determine whether a handful of legislators can sue a federal agency to access their records absent sufficient votes for a subpoena. While Congress routinely battles the executive branch to access information, this friction will come to a head this summer when the court decides a case that could severely limit the discretion Congress can give the executive branch in the policymaking process.
The fallout from this decision could have a lasting impact on the administrative state and how Congress approaches policymaking. It also raises questions about the ability of Congress — which would be required to adopt a more comprehensive approach to its lawmaking process — to assess the performance of federal programs it is responsible for overseeing when our separation of powers keeps much of the relevant information about these programs within the executive branch.
Regardless of the administration in power, federal agencies frequently stonewall attempts by the legislative branch to access this critical information.
Policymakers are inundated by information from a never-ending stream of sources. The problem Congress must confront is sorting through the onslaught to determine what information is both high-quality and relevant to the topic at hand.
To help address this problem, Congress created several support agencies — particularly, the Congressional Research Service (CRS), the Congressional Budget Office (CBO) and the Government Accountability Office (GAO) — staffed by nonpartisan policy analysts whose sole job is to answer questions for members and staff about the intricacies of complex policies.
All three agencies rely on access to current and reliable data, but as the House Modernization Subcommittee heard in recent testimony from a former CRS analyst, “In some cases, I was simply told point-blank by a federal agency that I could not have the data.”
Congress has recently engaged in two important bipartisan efforts to strengthen its hand in accessing real-time, high-quality data.
First, the House Budget Committee shepherded the Congressional Budget Office Data Sharing Act out of the House, passing it with bipartisan support via voice vote. The legislation would increase CBO’s access to federal data with the stipulation that the agency maintain an equal level of confidentiality as is required by the data’s home agency.
Similarly, the House Administration Committee recently moved forward with the Modernizing the Congressional Research Service’s Access to Data Act, though the measure has yet to clear the House.
Current and former staff at congressional support agencies often point to personal relationships with federal bureaucrats in their related policy areas as a consistent point of access to information needed to do their job. While such relationships are important, the ability to carry out congressional prerogatives should not hinge on such an informal information-sharing dynamic.
The executive branch is likely to push back on these efforts — as all presidential administrations have done — to skirt congressional oversight authority. However, the courts have consistently upheld both Congress’s right to information from the executive branch and the limits of congressional inquiry.
As longtime CRS analyst Morton Rosenberg notes, “while congressional power of inquiry is broad, it is not unlimited.” Nothing in the pending legislation upends that balance. Some may point to security concerns about increasing the number of people and entities with access to certain information, but CBO and CRS have proven their ability to handle and analyze federal data securely for decades.
While it is always important for Congress to have access to the best information possible to inform its decision-making, the need to fix this problem is rapidly increasing in urgency. Should the Supreme Court upend the Chevron deference doctrine, Congress will need to pick up the slack, and it currently lacks the expertise and capacity to do so. Addressing issues related to information access for congressional support agencies now will help save Congress from future headaches.
Congress has the constitutional responsibility to conduct oversight of the executive branch and craft laws that address the nation’s most pressing challenges. Greater access to high-quality, real-time data is a necessary step toward achieving those goals, and these two bills could help move the ball in the right direction.
J.D. Rackey, Ph.D. is a senior policy analyst for the Structural Democracy project at the Bipartisan Policy Center and is a former staff member for the U.S. House Select Committee on the Modernization of Congress.