CONGRESSIONAL OVERSIGHT MANUAL

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Updated January 16, 2020

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Offices of Senate Legal Counsel and House General Counsel

Since their establishment, the Offices of Senate Legal Counsel and House General Counsel have developed parallel yet distinctly unique and independent roles as institutional legal “voices” of the two bodies they represent.

Both offices perform functions important to committee oversight, including representing the committees of their respective chambers in certain judicial proceedings.

Senate Legal Counsel

The Office of Senate Legal Counsel provides legal assistance and representation to Senators, committees, officers, and employees of the Senate on matters pertaining to their official duties.

It was established “to serve the institution of Congress rather than the partisan interests of one party or another” 348 in the Ethics in Government Act of 1978. 349

Statutory duties of the office include defensive legal representation of the Senate, its committees, members, officers, and employees; 350 representation in legal proceedings to aid investigations by Senate committees; 351 representation of the Senate itself in litigation in cases in which the Senate is a party and also as amicus curiae when the Senate has an institutional interest; 352 providing legal advice and assistance to Members; 353 and performing such other duties consistent with the nonpartisan purposes and limitations of Title VII of the Ethics Act as the Senate may direct. 354

Critical to committee oversight, the Senate legal counsel may represent committees in proceedings to obtain evidence for Senate investigations.

Specifically, the office may represent a Senate committee or subcommittee in a civil action to enforce a subpoena. 355

Additionally, a committee may direct the Senate legal counsel to represent it or any of its subcommittees in an application for an immunity order. 356

The office also has a number of advisory functions.

Principal among these are the responsibility of advising members, committees, and officers of the Senate with respect to subpoenas or requests for the withdrawal of Senate documents and the responsibility of advising committees about their promulgation and implementation of rules and procedures for congressional investigations.

The office also provides advice about legal questions that arise during the course of investigations. 357

In addition, the counsel’s office provides information and advice to members, officers, and employees on a wide range of legal and administrative matters relating to Senate business.

Unlike the House practice, the Senate legal counsel plays no formal role in the review and issuance of subpoenas.

However, since it may become involved in civil enforcement proceedings, it has welcomed the opportunity to review proposed subpoenas for form and substance prior to their issuance by committees.

The office is led by the Senate legal counsel and deputy counsel, who are appointed by the President pro tempore of the Senate from among recommendations submitted by the majority and minority leaders of the Senate without regard for political affiliation. 358

348 S.Rept. 95-170, 95th Congress, 2nd session 84 (1978).

349 P.L. 95-520, §§701 et seq., 92 Stat. 1824, 1875 (1978), codified principally in 2 U.S.C. §§288 et seq.

350 2 U.S.C. §288c. For further discussion, see U.S. Congress, Senate, Riddick’s Senate Procedure: Precedents and Practice, 101st Congress, 2nd session, S.Doc. 101-28 (Washington: GPO, 1992), pp. 1236-1247, https://www.gpo.gov/fdsys/pkg/GPO-RIDDI ... 92-127.pdf.

351 2 U.S.C. §288d.

352 2 U.S.C. §288e.

353 2 U.S.C. §288g.

354 2 U.S.C. §288g(c). For examples of activities conducted by the Office of Senate Legal Counsel under this authority, see Riddick’s Senate Procedure, pp. 1245-1246.

355 The procedure for directing the Senate legal counsel to bring a civil action to enforce a subpoena is detailed in statute. See 2 U.S.C. §288d and 28 U.S.C. §1365.

356 2 U.S.C. §288b(d)(2), 288f.

357 2 U.S.C. §288g(a)(5) and (6).

358 2 U.S.C. §288(a)(2)

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House General Counsel

The House Office of General Counsel, authorized under House Rule II, clause 8, serves the role of counsel for the institution.

The office provides legal assistance and representation to members, committees, officers, and employees of the House of Representatives, without regard to political affiliation, on matters pertaining to their official duties.


The work of the office typically includes providing legal advice and assistance to House committees in the preparation and service of subpoenas; representing members, committees, officers, and employees of the House in judicial proceedings; providing legal advice and assistance to members; and providing legal guidance regarding requests from executive branch agencies.

Committees often work closely with the Office of General Counsel in drafting subpoenas; dealing with various asserted constitutional, statutory, and common-law privileges; responding to executive agencies and officials that resist congressional oversight; and navigating the statutory process for obtaining a contempt citation with respect to a recalcitrant witness.

The office represents the interests of House committees in judicial proceedings.

The office represents committees in federal court on applications for immunity orders pursuant to Title 18, Section 6005, of the U.S. Code; appears as amicus curiae in cases affecting House committee investigations; defends against attempts to obtain direct or indirect judicial interference with congressional subpoenas or other investigatory authority; represents committees seeking to prevent compelled disclosure of non-public information relating to their investigatory or other legislative activities; and appears in court on behalf of committees seeking judicial assistance in obtaining access to documents or information such as documents that are under seal or materials that may be protected by Rule 6(e) of the Federal Rules of Criminal Procedure.

The general counsel, deputy general counsel, and other attorneys of the office are appointed by the Speaker.

The office functions “pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group,” which consists of the majority and minority leaderships.

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OMB

OMB (http://www.whitehouse.gov/omb) came into existence under its current name in 1970.

Its predecessor agency, the Bureau of the Budget, was established in 1921.

Initially created as a unit in the Treasury Department, the agency has been a part of the Executive Office of the President since 1939.

Capabilities

OMB, though created by law as passed by Congress, functions in many ways as the President’s agent for the management and implementation of policy, including the federal budget.

In practice, OMB’s major responsibilities include:

 assisting the President in the preparation of budget proposals and development of a fiscal program;

 supervising and controlling the administration of the budget in the executive branch, including transmittal to Congress of proposals for deferrals and rescissions;

 keeping the President informed about agencies’ activities (proposed, initiated, and completed) in order to coordinate efforts, expend appropriations economically, and minimize unnecessary overlap and duplication;

 administering the process of review of draft proposed and final agency rules established by Executive Order 12866;

 administering the process of review and approval of collections of information by federal agencies and reducing the burden of agency information collection on the public under the Paperwork Reduction Act of 1995;

 overseeing (1) the manner in which agencies disseminate information to the public (including electronic dissemination); (2) how agencies collect, maintain, and use statistics; (3) how agencies’ archives are maintained; (4) how agencies develop systems for ensuring privacy, confidentiality, security, and the sharing of information collected by the government; and (5) how the government acquires and uses information technology, pursuant to the Paperwork Reduction Act of 1995, 359 the Clinger-Cohen Act of 1996, 360 and other legislation;

 studying and promoting better governmental management, including making recommendations to agencies regarding their administrative organization and operations;

 clearing and coordinating agencies’ draft testimony and legislative proposals and making recommendations about presidential action on legislation;

 assisting in the preparation, consideration, and clearance of executive orders and proclamations;

 planning and developing information systems that provide the President with agency and program performance data;

 establishing and overseeing implementation of financial management policies and requirements for the federal government;

 assisting in development of regulatory reform proposals and programs for paperwork reduction and the implementation of these initiatives;

 improving the economy and efficiency of the federal procurement process by providing overall direction for procurement policies, regulations, procedures, and forms.

359 P.L. 104-13, 44 U.S.C. ch. 35.

360 P.L. 104-106, 40 U.S.C. §§11101 et seq.

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Limitations

OMB is inevitably drawn into institutional and partisan struggles between the President and Congress.

Difficulties with Congress notwithstanding, OMB is a central coordinator and overseer for executive agencies and is, therefore, a rich potential source of information for investigative and oversight committees.

In addition, Congress may through legislation assign duties to OMB in order to establish oversight mechanisms and advance congressional oversight objectives.

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Budget Information

Since enactment of the 1974 Budget Act, as amended, Congress has more budgetary information than ever before.

Extensive budgetary materials are also available from the executive branch.

Some of the major sources of budgetary information are available on and off Capitol Hill.

They include (1) the President and executive agencies (recall that under the Budget and Accounting Act of 1921, the President presents annually a national budget to Congress); (2) CBO; (3) the House and Senate Budget Committees; (4) the House and Senate Appropriations Committees; and (5) the House and Senate legislative committees.

In addition, CRS and GAO prepare reports that address the budget and related issues.

Discretionary spending, the component of the budget that the Appropriations Committees oversee through the appropriations process, accounts for about one-third of federal spending.

Other House and Senate committees, particularly Ways and Means and Finance, oversee more than $2 trillion in spending through reauthorizations, direct spending measures, and reconciliation legislation.

In addition, the House Ways and Means Committee and the Senate Finance Committee oversee a diverse set of programs — including tax collection, tax expenditures, and some user fees — through the revenue process.

The oversight activities of all of these committees is enhanced through the use of the diverse range of budgetary information that is available to them.

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Executive Branch Budget Products

Budget of the United States Government contains the Budget Message of the President and information on the President’s budget proposals by budget function.

Analytical Perspectives, Budget of the United States Government contains analyses that are designed to highlight specified subject areas or provide other significant presentations of budget data that place the budget in perspective.

This volume includes economic and accounting analyses, information on federal receipts and collections, analyses of federal spending, information on federal borrowing and debt, baseline or current services estimates, and other technical presentations.

The Analytical Perspectives volume also contains supplemental material with several detailed tables — including tables showing the budget by agency and account and by function, subfunction, and program — that are available on the internet and as a CD-ROM in the printed document.

Historical Tables provides data on budget receipts, outlays, surpluses or deficits, federal debt, and federal employment over an extended time period, generally from 1940 or earlier to present.

To the extent feasible, the data have been adjusted to provide consistency with the budget and to provide comparability over time.

The Appendix, Budget of the United States Government contains detailed information on the various appropriations and funds that constitute the budget.

The Appendix contains financial information on individual programs and appropriation accounts.

It includes for each agency the proposed text of appropriations language, budget schedules for each account, legislative proposals, explanations of the work to be performed and the funds needed, and proposed general provisions applicable to the appropriations of entire agencies or groups of agencies.

Information is also provided on certain activities whose transactions are not part of the budget totals.

Several other points about the President’s budget and executive agency budget products are worth noting.

First, the President’s budgetary communications to Congress continue after the January/February submission and usually include a series of budget amendments and supplementals, the Mid-Session Review, Statements of Administration Policy (SAPs) on legislation, and even revised budgets on occasion.

Second, most of these additional communications are issued as House documents and are available on the web from GPO Access or the OMB home page (in the case of SAPs).

Third, the initial budget products often do not provide sufficient information on the President’s budgetary recommendations to enable committees to begin developing legislation, and that further budgetary information is provided in the “justification” materials and the later submission of legislative proposals.

Finally, the internal executive papers (such as agency budget submissions to OMB) are often not made available to Congress.

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Some Other Sources of Useful Budgetary Information

Committees on Appropriations.

The subcommittees of the House and Senate Appropriations Committees hold extensive hearings on the fiscal year appropriations requests of federal departments and agencies.

Each federal department or agency submits justification material to the Committees on Appropriations.

Their submissions can run from several hundred pages to over 2,000 pages.

The Appropriations Subcommittees typically print this material with the hearing record of the federal officials concerning these requests.

Budget committees.

The House and Senate Budget Committees, in preparing to report the annual concurrent budget resolution, conduct hearings on overall federal budget policy.

These hearings and other fiscal analyses made by these panels address various aspects of federal programs and funding levels that can be useful sources of information.

Other committees.

To assist the Budget Committees in developing the concurrent budget resolution, other committees are required to prepare “views and estimates” of programs in their jurisdiction.

Committee views and estimates, usually packaged together and issued as a committee print, may also be a useful source of detailed budget data.

Internal agency studies and budget reviews.

These agency studies and reviews are often conducted in support of budget formulation and can yield useful information about individual programs.

The budgeting documents, evaluations, and priority rankings of individual agency programs can provide insights into executive branch views of the importance of individual programs.

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Non-Federal Information Resources

Committees and Members can acquire useful information about executive branch programs and performance from non-federal stakeholders.

These stakeholders may bring expertise to congressional deliberations, and they may be categorized in many ways.

Illustrative examples of these stakeholders and their potential contribution to congressional oversight are described below.

State and local governments may offer valuable information to congressional overseers on the efficiency, effectiveness, and fairness of federal programs and policies, including potential implementation challenges and unintended consequences.

State and local governments administer many federal programs, policies, and funds — such as those related to healthcare (e.g., Medicaid), workforce development, education, and disaster management — and often audit or evaluate their effectiveness.

Some state and local programs have also served as models for similar programs at the federal level.

Think tanks and good government organizations are research entities that periodically conduct studies of public policy issues that may inform Members and committees on how well federal agencies and programs are working.

Examples of think tanks include the Brookings Institution, the RAND Corporation, and the Heritage Foundation.

Examples of good government organizations include the National Academy of Public Administration, the Partnership for Public Service, and the Project on Government Oversight (POGO).

Think tanks and good government organizations may operate under various legal authorities (e.g., 501(c)(3) status with the Internal Revenue Service), and their political ideologies and policy issues of focus can vary widely.

Some organizations, such as POGO, focus explicitly on improving government and congressional oversight.

Interest groups might provide unique perspectives on the impact of legislation to Members and committees, including potential unintended consequences on specific populations.

In general, interest groups are organizations that represent individuals or entities who share common views on a specific public policy issue, such as civil rights, education, or health.

An interest group often takes a particular position on a policy issue and advocates for adoption of laws and policies that align with that position.

Such advocacy can include attempts to directly influence public policy, including lobbying Members and congressional committees.

Non-governmental organizations (NGOs), broadly speaking, are entities that are independent of government involvement or control.

The acronym NGO can encompass a broad range of entities, such as international organizations or domestic nonprofit organizations.

Similar to think tanks, NGOs can vary in terms of their purpose, legal authorities, policy areas of focus, and political or religious affiliations.

NGOs may be active in different aspects of social, political, scientific, environmental, and humanitarian policy areas.

NGOs might provide valuable assistance to congressional overseers in navigating a broad range of policy issues.

According to the Department of State, NGOs “often develop and address new approaches to social and economic problems that governments cannot address alone.” 361

Private sector companies might assist Members and committees in overseeing the implementation of agency programs and policies, including by identifying potential application of private sector expertise and practices to government programs and services.

Companies that are regulated may also have feedback on the effectiveness of the regulation and how related implementation could be improved.

Companies may also market themselves to federal agencies, seeking brand recognition and contracts.

In addition to providing consultative services to agencies, private sector companies may publish insights and perspectives on certain federal policy issues, such as shared services, information technology, and cybersecurity.

Members of the general public can provide useful feedback on how well federal programs and services are working.

Such feedback can assist Members and committees in obtaining policy-relevant information about program performance and in evaluating the problems individuals might be having with federal administrators and agencies.

A variety of methods might be employed to solicit the views of those who receive federal programs and services, including investigations and hearings, field and on-site meetings, and surveys.

361 U.S. Department of State, “Non-Governmental Organizations (NGOs) in the United States,” January 20, 2017, https://www.state.gov/j/drl/rls/fs/2017/266904.htm.
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