Can the House Strengthen Civil Enforcement of Subpoenas to the Executive Branch through Rules Changes?
Panel Discussion co-sponsored by Good Government Now and the Legislative Branch Capacity Working Group
Friday, September 21, 2018 from 12-1:30 pm
Rayburn House Office Building, Room 2226
45 Independence Ave SW, Washington, DC 20515
A distinguished panel of oversight experts considered the merits of a proposal by Good Government Now Senior Fellow Michael L. Stern to strengthen civil enforcement of congressional subpoenas of executive branch officials through an amendment to the rules of the the U.S. House of Representatives in this luncheon panel discussion co-sponsored by Good Government Now and The Legislative Branch Capacity Working Group.
The executive branch has obstructed legislative information gathering with increasing frequency and effectiveness for the better part of the last two decades. Executive agencies have become ever more adept at undermining congressional inquiry by asserting a panoply of non-constitutional privileges, meritless objections, and questionable policy, legal, and procedural delaying tactics. Members of Congress and congressional committee staff have become increasingly frustrated by their inability to enforce their constitutionally legitimate information demands and are searching for solutions to restore the efficacy of congressional investigation.
Stern has proposed a partial solution to the crisis in declining congressional oversight authority in the form of an amendment to the rules of the U.S. House of Representatives to improve compliance with information requests and enforcement of subpoenas to the executive branch. Stern proposes creating an option for committees to tighten current processes for administration of written requests and subpoenas by requiring all executive branch objections and assertions of privilege in writing with detailed privilege logs by strict response deadlines.
The rule would establish an escalating, multi-phase adjudication process beginning with negotiation and accommodation and proceeding through subpoena, committee ruling, and sanctions phases. Executive branch non-compliance would result in prompt escalation to the next adjudicative phase on a congressionally-mandated timetable. The rule invokes multi-track enforcement for unresolved disputes including civil enforcement in federal court, points of order against appropriations for salaries of recalcitrant executive branch officials, and initiation of preliminary impeachment inquiries if the conduct of obstructive officials so warrants. It differentiates disputes involving claims of executive privilege from those that do not and channels only the latter, which are best-suited for court decisions favorable to Congress, toward civil enforcement.
“Urgent action is required to restore the ability of the House to enforce it demands for information from the executive branch to which it is entitled constitutionally,” said Dr. William J. Murphy, President of Good Government Now. “Mike Stern’s proposal is an important contribution to this effort and its consideration by such a distinguished panel of oversight experts in this event will advance the oversight reform dialogue considerably.”
Panelists
Stanley M. Brand – Senior Counsel, Akin Gump Strauss Hauer & Feld and former U.S. House General Counsel
Michael L. Stern – Senior Fellow, Good Government Now and former U.S. House Senior Legal Counsel;
Michael D. Bopp – Partner, Gibson, Dunn & Crutcher and former Staff Director and Chief Counsel, U.S. Senate Committee on Homeland Security and Governmental Affairs
Elise J. Bean – Washington Co-Director of the Levin Center at Wayne State University School of Law and former Staff Director and Chief Counsel to the Permanent Subcommittee on Investigations of the U.S. Senate Homeland Security and Governmental Affairs Committee
Moderator
Dr. William J. Murphy – President, Good Government Now
Statements and Presentations of Panelists
Bopp, Michael D. Strengthening Enforcement of Subpoenas [Slide Presentation]. September 21, 2018.
Stern, Michael L. Congressional Document Requests and Subpoenas to Executive Agencies: Time to Play by the House’s Rules [Slide Presentation]. Washington, DC: Good Government Now. September 21, 2018.
Subpoena Civil Enforcement Rule Resources
Murphy, William J. and Stern, Michael L. Summary of Proposed Rule on Information Requests and Subpoenas. Good Government Now. Washington, DC.
Stern, Michael. Rule on Information Requests and Subpoenas to the Executive Branch. Good Government Now. Washington, DC.
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Good Government Now promotes strengthened congressional oversight, investigative, and legislative institutional capacities to re-establish an appropriate constitutional balance between the legislative and executive branches as well as accountability of the executive branch to Congress and the American people.
