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since 1986 is that there has been acquiescence once a contempt citation has been voted by the full committee or the full House.

But while a threat or the actual issuance of a subpoena is normally sufficient to achieve compliance it's basically through the contempt power that Congress may act with ultimate force in response to recalcitrance.

There are three different kinds of contempt-three types of enforcement proceedings that are available. The one most commonly used for the last 60 years is the criminal contempt provision of sections 192 and 194 of Title 2. That mechanism provides that a vote of contempt on the floor of the House may be submitted to the U.S. attorney for prosecution which may lead to imprisonment for up to a year or a fine of $100,000 upon conviction.

It is applicable to both private citizens and executive branch officials. It's a punitive process. That is, the contempt cannot be purged even if the information is turned over at some point.

An enforcement difficulty, however, arises when a referral is made to a U.S. attorney for the District of Columbia, as is the usual case as is required by the contempt statute. The Justice Department has taken the position that Congress can neither constitutionally compel the U.S. attorney to bring the matter before a grand jury nor require him to sign an indictment should the jury hand up one.

This is an unsettled matter judicially and the only experience we have with an executive official occurred in the 1983 contempt proceedings regarding Environmental Protection Agency Administrator Anne Burford.

But that does not mean that Congress is powerless in subpoena disputes with the executive branch. Congress still retains a host of other tools to require information and testimony it needs, not the least of which is public opinion. Thus, even if a citation of contempt does not lead to a criminal prosecution, experience has shown that few administrations and fewer officials within an administration welcome a contempt citation with its resultant publicity and public criticism.

Historically, there have been 10 contempt citations, issued all since 1975, and in 9 of those 10 cases at the point of the contempt citation an accommodation was reached and in most instances documents that were sought were turned over or made available to the committee.

There are, however, several other alternatives to these modes of contempt in the case of an uncooperative executive official. The most promising and possibly the most expeditious route for a House committee would be to seek a resolution of the body authorizing it to bring a civil suit seeking enforcement of the subpoenas. There is precedent for bringing such civil suits under the grant of Federal jurisdiction in 28 U.S.C. 1331 and the Department of Justice has in fact indicated that it would approve this course of action to resolve such interbranch disputes.

But instead of prosecution or litigation, Congress has a host of other tools to secure information and testimony it needs. It can delay action on bills favored by the administration or pass legislation that makes mandatory action that is now discretionary and is not being done. The power of the purse can be used discretely to put pressure on the administration. Holds may be put on the confirmation process with respect to particular groups of individuals, and ultimately Congress can use the power of impeachment against an executive branch official.

A brief examination of the three areas of subcommittee concern with OMB action suggest that they may be more amenable to a variety of different enforcement actions. For example, your dispute with the Office of Management and Budget with respect to the Paperwork Reduction Act appears to essentially involve your interest in knowing whether the Office of Information and Regulatory Affairs is effectively carrying out its statutory mission to reduce the burden imposed by information collection requests by agencies. The statute, the Paperwork Reduction Act, empowers OIRA to review or reject information collections in part or in their entirety. The statute also requires that the information collection burden be reduced by stated percentages, 10 percent each in fiscal years 1996 and 1997, 5 percent each in fiscal years 1998, 1999 and 2000. OMB has conceded that OIRA has failed to meet these statutory objections in each year so far.

Your subcommittee seeks information about the effectiveness of OIRA's administration of the Paperwork Act, including among other things actual substantive changes made by OIRA during its review of action information collections. OMB's response is that, "it is our view that a substantive change is made by OMB only when OMB exercises its authority to disapprove a collection or when an agency withdraws a collection during our review."

OMB does not deny that it may object to certain requirements in an information collection, and that an agency may agree to delete them as a condition of approval for the rest of the information collection, or that OIRA has the authority to do so. Section 3507(e)(1) of the Paperwork Act indicates that the director has the power to instruct an agency to make substantive material changes to a collection of information and those decisions are to be made publicly available and are to include explanations.

A similar power in the Paperwork Act applies to information collections in rules. OMB simply refuses to reveal whether it ever exercises this discrete review authority. This would appear to be an unquestionably valid exercise of the subcommittee's oversight authority. If OIRA is never exercising such review authority, or is doing so in a manner the subcommittee deems perfunctory, it is a matter it may deem of legislative concern requiring remedial action.

Also it is within the prerogatives of the subcommittee to suggest that in the future that OIRA record instances in which it has vetoed or suggested changes in certain requirements. Of course it may not require OIRA to do so, but the agency's refusal to do so would provide further impetus for remedial legislation. However, to hold the Director of OMB in contempt for what may be in fact an obdurate refusal to implement the law the way Congress may have intended

Mr. MCINTOSH. Mr. Rosenberg, let me ask you to summarize that and put the remaining of your written testimony into the record.

Thank you.

Mr. ROSENBERG. Also, with respect to the Paperwork Act, it's interesting to note that the Executive order on regulatory review, Executive Order 12866, in an analogous situation allows for review of rules and requires public disclosure once a rule is published in the Federal Register, of the draft that it submitted and how OMB changed it.

And with regard to the subpoena, certainly the entire background of your subpoena requests, the delays in responding to it, the failure to make an adequate search can be all part of the background and basis of a valid contempt citation by your committee.

[The prepared statement of Mr. Rosenberg follows:]

Thank you.

Congressional Research Service • Library of Congress • Washington, D.C. 20540

CRS

STATEMENT

OF

MORTON ROSENBERG
SPECIALIST IN AMERICAN PUBLIC LAW
CONGRESSIONAL RESEARCH SERVICE

BEFORE THE

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL
RESOURCES, AND REGULATORY AFFAIRS, HOUSE COMMITTEE ON

GOVERNMENT REFORM

CONCERNING

AUTHORITY OF A CONGRESSIONAL COMMITTEE TO REQUEST
INFORMATION AND DOCUMENTS FROM AN AGENCY DURING AN
OVERSIGHT PROCEEDING AND OPTIONS AVAILABLE TO COMPEL

COMPLIANCE WITH SUCH REQUESTS

PRESENTED ON

APRIL 12, 2000

Mr. Chairman and Members of the Subcommittee

My name is Morton Rosenberg. I am a Specialist in American Public Law in the American Law Division of the Congressional Research Service (CRS). Among my areas of professional concern at CRS are the problems raised by the interface of Congress and the Executive which involve the scope and application of congressional oversight and investigative prerogatives. Over the years I have been involved in a number of investigations, including Iran-Contra, Rocky Flats, Whitewater, Travelgate, Filegate, and the Clinton impeachment inquiry, as well as other significant interbranch oversight disputes. My involvement has been advising Members and staff on such matters as organization of the probes, subpoena issuance and enforcement, the conduct of hearings, and contempt of Congress resolutions, and has required my dealing with a wide variety of legal and practical issues.

You have asked me here today to explain the range of options your Subcommittee may have in the face of a perceived nonresponsiveness by the Office of Management and Budget (OMB) to requests for information and documents with respect to matters within its jurisdictional purview. One instance involves the failure to conduct a complete and adequate search for documents encompassed by a subpoena. A second involves a refusal to provide information about "actual substantive changes" made by OMB during its review of Information Collection Requests (ICR’s) submitted by agencies pursuant to the Paperwork Reduction Act (PRA). The third concerns an incomplete response to an explicit statutory direction to OMB to issue guidance to executive agencies as to how to respond to and comply with the requirements of the 1996 Congressional Review Act.

My discussion will proceed as follows. I will briefly describe the goals and purposes of legislative oversight and how our constitutional scheme of separated but shared powers impacts on the accomplishment of those goals and purposes. I will then outline the leading methods and processes by which congressional committees engage in oversight, distinguishing the unique and vital role of investigations from other facets of the oversight process. Next I will review the legal basis for investigative oversight, describe the essential tools available to committees to make it effective, the problems that may arise in enforcing the investigative prerogative, and the courses of action that are available to circumvent such problems. I will conclude with an assessment of the specific oversight concerns raised by the Subcommittee.

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Throughout its history, Congress has engaged in oversight of the executive branch-the review, monitoring, and supervision of the implementation of public policy. The first several Congresses inaugurated such important oversight techniques as special investigations, reporting requirements, resolutions of inquiry, and use of the appropriations process to review executive activity. Contemporary developments, moreover, have increased the legislature's capacity and capabilities to check on and check the Executive. Public laws and congressional rules have measurably enhanced Congress's implied power under the Constitution to conduct oversight.

Congressional oversight of the Executive is designed to fulfill a number of important purposes and goals: 10 ensure executive compliance with legislative intent; to improve the efficiency, effectiveness, and economy of governmental operations; to evaluate program performance; to prevent executive encroachment on legislative powers and prerogatives; to investigate alleged instances of poor administration, arbitrary and capricious behavior, abuse,

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