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Other Significant Sources of Information, continued ...
Paperwork Reduction Act of 1995 (P.L. 104-13, 44 U.S.C. ch. 35)
This most recent version of paperwork reduction legislation builds on a heritage of statutory controls over government paperwork that dates to 1942.
Among other things, the current act and its 1980 predecessor more clearly defined the oversight responsibilities of OMB’s OIRA: It is authorized to develop and administer uniform information policies in order to ensure the availability and accuracy of agency data collection.
Congressional oversight has been strengthened through its subsequent reauthorizations and the requirement for Senate confirmation of OIRA’s administrator.
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Other Significant Sources of Information, continued ...
Federal Managers’ Financial Integrity Act (FMFIA) of 1982 (P.L. 97-255)
FMFIA is designed to improve the government’s ability to manage its programs by strengthening internal management and financial controls, accounting systems, and financial reports.
The internal accounting systems are to be consistent with standards that the comptroller general prescribes, including a requirement that all assets be safeguarded against waste, fraud, loss, unauthorized use, and misappropriation.
FMFIA also provides for ongoing evaluations of the internal control and accounting systems that protect federal programs against waste, fraud, abuse, and mismanagement.
The enactment further mandates that the head of each agency report annually to the President and Congress on the condition of these systems and on agency actions to correct any material weakness that the reports identify.
FMFIA is also connected to the Chief Financial Officers Act of 1990, which calls upon the director of OMB to submit a financial management status report to appropriate congressional committees.
Part of this report is to be a summary of reports on internal accounting and administrative control systems as required by FMFIA.
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Reporting Requirements, Consultation, and Other Sources of Information, continued ...
Other Significant Sources of Information, continued ...
Federal Managers’ Financial Integrity Act (FMFIA) of 1982 (P.L. 97-255)
FMFIA is designed to improve the government’s ability to manage its programs by strengthening internal management and financial controls, accounting systems, and financial reports.
The internal accounting systems are to be consistent with standards that the comptroller general prescribes, including a requirement that all assets be safeguarded against waste, fraud, loss, unauthorized use, and misappropriation.
FMFIA also provides for ongoing evaluations of the internal control and accounting systems that protect federal programs against waste, fraud, abuse, and mismanagement.
The enactment further mandates that the head of each agency report annually to the President and Congress on the condition of these systems and on agency actions to correct any material weakness that the reports identify.
FMFIA is also connected to the Chief Financial Officers Act of 1990, which calls upon the director of OMB to submit a financial management status report to appropriate congressional committees.
Part of this report is to be a summary of reports on internal accounting and administrative control systems as required by FMFIA.
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Other Significant Sources of Information, concluded ...
Clinger-Cohen Act of 1996 (P.L. 104-106, 40 U.S.C. §§11101 et seq.)
This act brought attention to how agencies invest in information technology.
The act gave more responsibility to individual agencies, revoking the primary role that the GSA had played previously, and established the position of chief information officer in federal agencies to provide relevant advice to agency heads.
Federal Advisory Committee Act (FACA) (P.L. 92-463, 5 U.S.C. Appendix)
Congress formally acknowledged the merits of using advisory committees to obtain expert views drawn from business, academic, government, and other interests when it enacted FACA in 1972.
Congressional enactment of FACA established the first requirements for the management and oversight of federal advisory committees to ensure impartial and relevant expertise.
As required by FACA, GSA administers and provides management guidelines for advisory committees.
From 1972 until 1997, GSA submitted a hard copy of its annual comprehensive review of agency federal advisory committees to the President and Congress.
Since 1998, however, GSA has maintained a specialized, federal government, interagency, information-sharing database that collects data on federal advisory committee activities government-wide and is publicly available on the web.
The database is available at http://www.facadatabase.gov.
Unfunded Mandates Reform Act of 1995 (P.L. 104-4, 2 U.S.C. §§1501 et seq.)
After considerable debate, the Unfunded Mandates Reform Act was enacted early in the 104th Congress.
Generally, unfunded intergovernmental mandates include responsibilities or duties that federal programs, standards, or requirements impose on governments at other levels without providing for the payment of the costs of carrying out these responsibilities or duties.
The intent of the mandate legislation was to limit the ability of the federal government to impose costs on state and local governments through unfunded mandates.
The enactment has three components: revised congressional procedures regarding future mandates, requirements for federal agency regulatory actions, and authorization for a study of existing mandates to evaluate their usefulness.
The primary objective was to create procedures that would draw attention to, if not stop, congressional authorization of new unfunded mandates on state and local governments.
Federal Funding Accountability and Transparency Act (FFATA), as Amended by the Digital
Accountability and Transparency (DATA) Act (P.L. 109-282, 31 U.S.C. §6101 note)
Under FFATA, OMB established a searchable, free, and public website that enables anyone to go online to find certain information about most federal grants, loans, and contracts. 283
OMB eventually established the website as USAspending.gov.
Subsequently, Congress significantly amended FFATA with passage of the DATA Act (P.L. 113-101).
Among other things, the amended version of FFATA requires the Secretary of the Treasury and director of OMB to establish government-wide financial data standards.
In addition, the amended law requires online reporting of extensive data on budget execution.
283 Two federal government websites resulted from the enactment of FFATA. USAspending.gov, at http://www.usaspending.gov/, includes spending data for contracts, grants, direct payments, insurance, and loans/guarantees. The FFATA Search Portal, at http://www.ffata.org/ffata/, contains information about contracts and grants.
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Reporting Requirements, Consultation, and Other Sources of Information, continued ...
Other Significant Sources of Information, concluded ...
Clinger-Cohen Act of 1996 (P.L. 104-106, 40 U.S.C. §§11101 et seq.)
This act brought attention to how agencies invest in information technology.
The act gave more responsibility to individual agencies, revoking the primary role that the GSA had played previously, and established the position of chief information officer in federal agencies to provide relevant advice to agency heads.
Federal Advisory Committee Act (FACA) (P.L. 92-463, 5 U.S.C. Appendix)
Congress formally acknowledged the merits of using advisory committees to obtain expert views drawn from business, academic, government, and other interests when it enacted FACA in 1972.
Congressional enactment of FACA established the first requirements for the management and oversight of federal advisory committees to ensure impartial and relevant expertise.
As required by FACA, GSA administers and provides management guidelines for advisory committees.
From 1972 until 1997, GSA submitted a hard copy of its annual comprehensive review of agency federal advisory committees to the President and Congress.
Since 1998, however, GSA has maintained a specialized, federal government, interagency, information-sharing database that collects data on federal advisory committee activities government-wide and is publicly available on the web.
The database is available at http://www.facadatabase.gov.
Unfunded Mandates Reform Act of 1995 (P.L. 104-4, 2 U.S.C. §§1501 et seq.)
After considerable debate, the Unfunded Mandates Reform Act was enacted early in the 104th Congress.
Generally, unfunded intergovernmental mandates include responsibilities or duties that federal programs, standards, or requirements impose on governments at other levels without providing for the payment of the costs of carrying out these responsibilities or duties.
The intent of the mandate legislation was to limit the ability of the federal government to impose costs on state and local governments through unfunded mandates.
The enactment has three components: revised congressional procedures regarding future mandates, requirements for federal agency regulatory actions, and authorization for a study of existing mandates to evaluate their usefulness.
The primary objective was to create procedures that would draw attention to, if not stop, congressional authorization of new unfunded mandates on state and local governments.
Federal Funding Accountability and Transparency Act (FFATA), as Amended by the Digital
Accountability and Transparency (DATA) Act (P.L. 109-282, 31 U.S.C. §6101 note)
Under FFATA, OMB established a searchable, free, and public website that enables anyone to go online to find certain information about most federal grants, loans, and contracts. 283
OMB eventually established the website as USAspending.gov.
Subsequently, Congress significantly amended FFATA with passage of the DATA Act (P.L. 113-101).
Among other things, the amended version of FFATA requires the Secretary of the Treasury and director of OMB to establish government-wide financial data standards.
In addition, the amended law requires online reporting of extensive data on budget execution.
283 Two federal government websites resulted from the enactment of FFATA. USAspending.gov, at http://www.usaspending.gov/, includes spending data for contracts, grants, direct payments, insurance, and loans/guarantees. The FFATA Search Portal, at http://www.ffata.org/ffata/, contains information about contracts and grants.
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Resolutions of Inquiry
The House of Representatives can call upon the executive for factual information through resolutions of inquiry (House Rule XIII, clause 7). 284
This is a simple resolution considered in and approved by only the House.
Resolutions of inquiry are addressed to either the President or heads of Cabinet-level agencies to supply specific factual information to the chamber.
The resolutions traditionally usually “request” the President or “direct” administrative heads to supply such information.
In calling upon the President for information, especially about foreign affairs, the qualifying phrase — “if not incompatible with the public interest” — is often added.
Such resolutions are to ask for facts, documents, or specific information.
These devices are not to request an opinion or require an investigation.
Resolutions of inquiry can trigger other congressional methods of obtaining information, such as through supplemental hearings or the regular legislative process.
If a resolution of inquiry is not reported by all the committees of referral within 14 legislative days after its introduction, any Representative can move to discharge the panels and bring the resolution to the floor for consideration.
Action by the committees to report the resolution within the 14 days, however, effectively sidetracks House floor action on the resolution.
For this reason, House committees virtually always mark up and report resolutions of inquiry referred to them, even when they do not support the goals of the legislation.
By reporting the resolution within the specified 14-day window, a committee of referral retains control over the measure and prevents supporters of the resolution from going to the floor and making the privileged motion to discharge.
284 For a more detailed discussion of Resolutions of Inquiry see CRS Report R40879, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017, by Christopher M. Davis.
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Reporting Requirements, Consultation, and Other Sources of Information, continued ...
Resolutions of Inquiry
The House of Representatives can call upon the executive for factual information through resolutions of inquiry (House Rule XIII, clause 7). 284
This is a simple resolution considered in and approved by only the House.
Resolutions of inquiry are addressed to either the President or heads of Cabinet-level agencies to supply specific factual information to the chamber.
The resolutions traditionally usually “request” the President or “direct” administrative heads to supply such information.
In calling upon the President for information, especially about foreign affairs, the qualifying phrase — “if not incompatible with the public interest” — is often added.
Such resolutions are to ask for facts, documents, or specific information.
These devices are not to request an opinion or require an investigation.
Resolutions of inquiry can trigger other congressional methods of obtaining information, such as through supplemental hearings or the regular legislative process.
If a resolution of inquiry is not reported by all the committees of referral within 14 legislative days after its introduction, any Representative can move to discharge the panels and bring the resolution to the floor for consideration.
Action by the committees to report the resolution within the 14 days, however, effectively sidetracks House floor action on the resolution.
For this reason, House committees virtually always mark up and report resolutions of inquiry referred to them, even when they do not support the goals of the legislation.
By reporting the resolution within the specified 14-day window, a committee of referral retains control over the measure and prevents supporters of the resolution from going to the floor and making the privileged motion to discharge.
284 For a more detailed discussion of Resolutions of Inquiry see CRS Report R40879, Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2017, by Christopher M. Davis.
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Limitations and Riders on Appropriations
Congress uses a two-step legislative procedure: authorization of programs in bills reported by legislative committees followed by the funding of those programs in bills reported by the Committees on Appropriations.
Congressional rules generally encourage these two steps to be distinct and sequential.
Authorizations should not be in general appropriation bills or appropriations in authorization measures.
However, there are various exceptions to the general principle that Congress should not make policy through the appropriations process.
One exception is the practice of permitting “limitations” in an appropriations bill.
So-called riders (language extraneous to the subject of the bill) are also sometimes added to control agency actions.
Limitations
Although House rules forbid in any general appropriations bill a provision “changing existing law,” certain “limitations” may be admitted.
“Just as the House under its rules may decline to appropriate for a purpose authorized by law, so it may by limitation prohibit the use of the money for part of the purpose while appropriating for the remainder of it.” 285
Limitations can be an effective device in oversight by strengthening Congress’s ability to exercise control over federal spending and to reduce unnecessary or undesired expenditures.
Under House Rule XXI, no provision changing existing law can be reported in any general appropriation bill “except germane provisions that retrench expenditures by the reduction of amounts of money covered by the bill” (the Holman rule, rarely used in modern practice).
Rule XXI was amended in 1983 in an effort to restrict the number of limitations on appropriations bills.
The rule was changed again in 1995 by granting the majority leader a central role in determining consideration of limitation amendments.
The procedures for limitation in the House are set forth in the House rulebook, Sections 1044(b), 1053-62.
Riders
Unlike limitations, legislative “riders” are extraneous to the subject matter of the bill to which they are added.
Riders appear in both authorization bills and appropriations bills.
In the latter case, such provisions would be subject to a point of order in the House on the grounds that they are attempts to place legislation in an appropriations bill, although in almost every case, Members’ ability to lodge a point of order may be restricted by the procedure used to consider the legislation.
In the Senate, Rule XVI prohibits the addition to general appropriations bills of amendments that are legislative or non-germane.
Both chambers have procedures to waive these prohibitions.
285 Constitution, Jefferson’s Manual, and Rules of the House of Representatives, H.Doc. No. 115-177, 115th Congress, 2nd Session §1053 (2019).
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Limitations and Riders on Appropriations
Congress uses a two-step legislative procedure: authorization of programs in bills reported by legislative committees followed by the funding of those programs in bills reported by the Committees on Appropriations.
Congressional rules generally encourage these two steps to be distinct and sequential.
Authorizations should not be in general appropriation bills or appropriations in authorization measures.
However, there are various exceptions to the general principle that Congress should not make policy through the appropriations process.
One exception is the practice of permitting “limitations” in an appropriations bill.
So-called riders (language extraneous to the subject of the bill) are also sometimes added to control agency actions.
Limitations
Although House rules forbid in any general appropriations bill a provision “changing existing law,” certain “limitations” may be admitted.
“Just as the House under its rules may decline to appropriate for a purpose authorized by law, so it may by limitation prohibit the use of the money for part of the purpose while appropriating for the remainder of it.” 285
Limitations can be an effective device in oversight by strengthening Congress’s ability to exercise control over federal spending and to reduce unnecessary or undesired expenditures.
Under House Rule XXI, no provision changing existing law can be reported in any general appropriation bill “except germane provisions that retrench expenditures by the reduction of amounts of money covered by the bill” (the Holman rule, rarely used in modern practice).
Rule XXI was amended in 1983 in an effort to restrict the number of limitations on appropriations bills.
The rule was changed again in 1995 by granting the majority leader a central role in determining consideration of limitation amendments.
The procedures for limitation in the House are set forth in the House rulebook, Sections 1044(b), 1053-62.
Riders
Unlike limitations, legislative “riders” are extraneous to the subject matter of the bill to which they are added.
Riders appear in both authorization bills and appropriations bills.
In the latter case, such provisions would be subject to a point of order in the House on the grounds that they are attempts to place legislation in an appropriations bill, although in almost every case, Members’ ability to lodge a point of order may be restricted by the procedure used to consider the legislation.
In the Senate, Rule XVI prohibits the addition to general appropriations bills of amendments that are legislative or non-germane.
Both chambers have procedures to waive these prohibitions.
285 Constitution, Jefferson’s Manual, and Rules of the House of Representatives, H.Doc. No. 115-177, 115th Congress, 2nd Session §1053 (2019).
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Legislative Veto and Advance Notice
Many acts of Congress have delegated authority to the executive branch on the condition that proposed executive actions be submitted to Congress for review and possible disapproval before they can be put into effect.
This way of ensuring continuing oversight of policy areas follows two paths: the legislative veto and advance notification.
Legislative Veto
Beginning in 1932, Congress delegated authority to the executive branch with the condition that proposed executive actions would be first submitted to Congress and subjected to disapproval by a committee, a single house, or both houses.
Over the years, other types of legislative veto were added, allowing Congress to control executive branch actions without having to enact a law.
In 1983, the Supreme Court ruled that the legislative veto was unconstitutional on the grounds that all exercises of legislative power that affect the rights, duties, and relations of persons outside the legislative branch must satisfy the constitutional requirements of bicameralism and presentment of a bill or resolution to the President for his signature or veto. 286
Despite this ruling, Congress has continued to enact proscribed legislative vetoes, and it has also relied on informal arrangements to provide comparable controls.
Statutory Legislative Vetoes
Congress responded to Chadha by converting some of the one-house and two-house legislative vetoes to joint resolutions of approval or disapproval, thus satisfying the requirements of bicameralism and presentment.
However, Congress continues to rely on legislative vetoes.
Since the Chadha decision, hundreds of legislative vetoes have been enacted into public law, usually in appropriations acts.
These legislative vetoes are exercised by the Appropriations Committees.
Typically, funds may not be used or an executive action may not begin until the Appropriations Committees have approved — or, at least, not disapproved — the planned action, often within a specified time limit.
Informal Legislative Vetoes
Unlike a formal legislative veto, where the arrangement is spelled out in the law, the informal legislative veto occurs where an executive official pledges not to proceed with an activity until Congress or certain committees agree to it.
An example of this appeared during the 101st Congress.
In the “bipartisan accord” on funding the Contras in Nicaragua, the Administration pledged that no funds would be obligated beyond November 30, 1989, unless affirmed by letter from the relevant authorization and appropriations committees and the bipartisan leadership of Congress. 287
286 INS v. Chadha, 462 U.S. 919 (1983).
287 See Bernard Weinraub, “Bush and Congress Sign Policy Accord on Aid to Contras,” New York Times, March 25, 1986, https://www.nytimes.com/1989/03/25/worl ... ntras.html.
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Legislative Veto and Advance Notice
Many acts of Congress have delegated authority to the executive branch on the condition that proposed executive actions be submitted to Congress for review and possible disapproval before they can be put into effect.
This way of ensuring continuing oversight of policy areas follows two paths: the legislative veto and advance notification.
Legislative Veto
Beginning in 1932, Congress delegated authority to the executive branch with the condition that proposed executive actions would be first submitted to Congress and subjected to disapproval by a committee, a single house, or both houses.
Over the years, other types of legislative veto were added, allowing Congress to control executive branch actions without having to enact a law.
In 1983, the Supreme Court ruled that the legislative veto was unconstitutional on the grounds that all exercises of legislative power that affect the rights, duties, and relations of persons outside the legislative branch must satisfy the constitutional requirements of bicameralism and presentment of a bill or resolution to the President for his signature or veto. 286
Despite this ruling, Congress has continued to enact proscribed legislative vetoes, and it has also relied on informal arrangements to provide comparable controls.
Statutory Legislative Vetoes
Congress responded to Chadha by converting some of the one-house and two-house legislative vetoes to joint resolutions of approval or disapproval, thus satisfying the requirements of bicameralism and presentment.
However, Congress continues to rely on legislative vetoes.
Since the Chadha decision, hundreds of legislative vetoes have been enacted into public law, usually in appropriations acts.
These legislative vetoes are exercised by the Appropriations Committees.
Typically, funds may not be used or an executive action may not begin until the Appropriations Committees have approved — or, at least, not disapproved — the planned action, often within a specified time limit.
Informal Legislative Vetoes
Unlike a formal legislative veto, where the arrangement is spelled out in the law, the informal legislative veto occurs where an executive official pledges not to proceed with an activity until Congress or certain committees agree to it.
An example of this appeared during the 101st Congress.
In the “bipartisan accord” on funding the Contras in Nicaragua, the Administration pledged that no funds would be obligated beyond November 30, 1989, unless affirmed by letter from the relevant authorization and appropriations committees and the bipartisan leadership of Congress. 287
286 INS v. Chadha, 462 U.S. 919 (1983).
287 See Bernard Weinraub, “Bush and Congress Sign Policy Accord on Aid to Contras,” New York Times, March 25, 1986, https://www.nytimes.com/1989/03/25/worl ... ntras.html.
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Advance Notification or Report-and-Wait
Statutory provisions may stipulate that before a particular activity can be undertaken by the executive branch or funds obligated, Congress must first be advised or informed, ordinarily through a full written statement, of what is being proposed.
These statutory provisions usually provide for a period of time during which action by the executive must be deferred, giving Congress an opportunity to pass legislation prohibiting the pending action or using political pressure to cause executive officials to retract or modify the proposed action.
This type of “report and wait” provision has been upheld by the Supreme Court.
The Court noted: “The value of the reservation of the power to examine proposed rules, laws and regulations before they become effective is well understood by Congress."
"It is frequently, as here, employed to make sure that the action under the delegation squares with the Congressional purpose.” 288
288 Sibbach v. Wilson, 312 U.S. 1 (1941).
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Advance Notification or Report-and-Wait
Statutory provisions may stipulate that before a particular activity can be undertaken by the executive branch or funds obligated, Congress must first be advised or informed, ordinarily through a full written statement, of what is being proposed.
These statutory provisions usually provide for a period of time during which action by the executive must be deferred, giving Congress an opportunity to pass legislation prohibiting the pending action or using political pressure to cause executive officials to retract or modify the proposed action.
This type of “report and wait” provision has been upheld by the Supreme Court.
The Court noted: “The value of the reservation of the power to examine proposed rules, laws and regulations before they become effective is well understood by Congress."
"It is frequently, as here, employed to make sure that the action under the delegation squares with the Congressional purpose.” 288
288 Sibbach v. Wilson, 312 U.S. 1 (1941).
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Independent Counsel 289
The statutory provisions for the appointment of an independent counsel (formerly called “special prosecutor”) were originally enacted as Title VI of the Ethics in Government Act of 1978 and codified at Title 28, Sections 591-599, of the U.S. Code.
The independent counsel was reauthorized in 1983, 1987, and 1994.
It expired on June 30, 1999.
The mechanisms of the independent counsel law were triggered by the receipt of information by the Attorney General that alleged a violation of any federal criminal law (other than certain misdemeanors or “infractions”) by a person covered by the act.
Certain high-level federal officials — including the President, Vice President, and heads of departments — were automatically covered by the law.
In addition, the Attorney General had discretion to seek an independent counsel for any person for whom there may exist a personal, financial, or political conflict of interest for DOJ personnel to investigate, and the Attorney General could seek an independent counsel for any Member of Congress when the Attorney General deemed it to be in the “public interest.”
After conducting a limited review of the matter (a 30-day threshold review of the credibility and specificity of the charges and a subsequent 90-day preliminary investigation with a possible 60-day extension), the Attorney General — if he or she believed that “further investigation is warranted” — would apply to a special “division of the court,” a federal three-judge panel appointed by the Chief Justice of the Supreme Court, requesting that the division appoint an independent counsel.
The Attorney General of the United States was the only officer in the government authorized to apply for the appointment of an independent counsel.
The special division of the court selected and appointed the independent counsel, and designated his or her prosecutorial jurisdiction, based on the information provided the court by the Attorney General.
The independent counsel had the full range of investigatory and prosecutorial powers and functions of the Attorney General or other DOJ employees.
There was no specific term of appointment for independent counsels.
They could serve for as long as it took to complete their duties concerning that specific matter within their defined and limited jurisdiction.
Once a matter was completed, the independent counsel filed a final report.
The special division of the court could also find that the independent counsel’s work was completed and terminate the office.
A periodic review of an independent counsel for such determination was to be made by the special division of the court.
An independent counsel, prior to the completion of his or her duties, could be removed from office (other than by impeachment and conviction) only by the Attorney General of the United States for good cause, physical or mental disability, or other impairing condition, and such removal could be appealed to the court.
The procedures for appointing and removing the independent counsel were upheld by the Supreme Court in Morrison v. Olson. 290
Investigation by the independent counsel could compete with parallel efforts by congressional committees to examine the same issue.
Congress could decide to accommodate the needs of the independent counsel, such as delaying a legislative investigation until the independent counsel completed certain phases of an inquiry.
Although Congress could call on the Attorney General to apply for an independent counsel by a written request from the House or Senate Judiciary Committee, or a majority of members of either party of those committees, the Attorney General is not required to begin a preliminary investigation or to apply for an independent counsel in response to such a request.
However, in such cases DOJ was required to provide certain information to the requesting committee.
The independent counsel was directed by statutory language to submit to Congress an annual report on the activities of such independent counsel, including the progress of investigations and any prosecutions.
Although it was recognized that certain information would have to be kept confidential, the statute stated that “information adequate to justify the expenditures that the office of the independent counsel has made” should be provided. 291
The conduct of an independent counsel was subject to congressional oversight, and an independent counsel was required to cooperate with that oversight. 292
In addition, the independent counsel was required to report to the House of Representatives any “substantial and credible” information that may constitute grounds for any impeachment. 293
On September 11, 1998, Independent Counsel Kenneth W. Starr forwarded to the House a report concluding that President Clinton may have committed impeachable offenses.
The House passed two articles of impeachment (perjury and obstruction of justice), but the Senate voted 45-55 on the perjury charge and 50-50 on the obstruction of justice charge, short of the two-thirds majority required under the Constitution.
The independent counsel statute expired in 1992, partly because of criticism directed at Lawrence Walsh’s investigation of Iran-Contra.
The statute was reauthorized in 1994, but objections to the investigations conducted by Kenneth Starr into Whitewater, Monica Lewinsky, and other matters put Congress under pressure to let the statute lapse on June 30, 1999.
Unless Congress in the future reauthorizes the independent counsel, the only available option for an independent counsel is to have the Attorney General invoke existing authority to appoint a special prosecutor to investigate a particular matter.
For example, when the independent counsel statute expired in 1992 and was not reauthorized until 1994, Attorney General Janet Reno appointed Robert Fiske in 1993 to investigate the Clintons’ involvement in Whitewater and the death of White House aide Vincent Foster.
On July 9, 1999, Attorney General Reno promulgated regulations concerning the appointment of outside, temporary counsels, to be called “Special Counsels,” in certain circumstances to conduct investigations and possible prosecutions of certain sensitive matters or matters which may raise a conflict for DOJ. 294
Such special counsels would have substantially less independence than the statutory independent counsel, including removal for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Department policies.”
The regulations promulgated by Attorney General Reno remain in place today.
They were applied most recently when in May 2017 Deputy Attorney General Rod Rosenstein appointed former FBI director Robert Mueller as special counsel to investigate the Russian government’s efforts to “influence the 2016 election and related matters.” 295
289 For additional information, see CRS Report R44857, Special Counsel Investigations: History, Authority, Appointment and Removal, by Jared P. Cole.
290 487 U.S. 654 (1988)
291 28 U.S.C. §595(a)(2).
292 28 U.S.C. §595(a)(1).
293 28 U.S.C. §595(c).
294 28 C.F.R. Part 600.
295 Office of Deputy Att'y Gen., Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/press-relea ... 1/download.
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Independent Counsel 289
The statutory provisions for the appointment of an independent counsel (formerly called “special prosecutor”) were originally enacted as Title VI of the Ethics in Government Act of 1978 and codified at Title 28, Sections 591-599, of the U.S. Code.
The independent counsel was reauthorized in 1983, 1987, and 1994.
It expired on June 30, 1999.
The mechanisms of the independent counsel law were triggered by the receipt of information by the Attorney General that alleged a violation of any federal criminal law (other than certain misdemeanors or “infractions”) by a person covered by the act.
Certain high-level federal officials — including the President, Vice President, and heads of departments — were automatically covered by the law.
In addition, the Attorney General had discretion to seek an independent counsel for any person for whom there may exist a personal, financial, or political conflict of interest for DOJ personnel to investigate, and the Attorney General could seek an independent counsel for any Member of Congress when the Attorney General deemed it to be in the “public interest.”
After conducting a limited review of the matter (a 30-day threshold review of the credibility and specificity of the charges and a subsequent 90-day preliminary investigation with a possible 60-day extension), the Attorney General — if he or she believed that “further investigation is warranted” — would apply to a special “division of the court,” a federal three-judge panel appointed by the Chief Justice of the Supreme Court, requesting that the division appoint an independent counsel.
The Attorney General of the United States was the only officer in the government authorized to apply for the appointment of an independent counsel.
The special division of the court selected and appointed the independent counsel, and designated his or her prosecutorial jurisdiction, based on the information provided the court by the Attorney General.
The independent counsel had the full range of investigatory and prosecutorial powers and functions of the Attorney General or other DOJ employees.
There was no specific term of appointment for independent counsels.
They could serve for as long as it took to complete their duties concerning that specific matter within their defined and limited jurisdiction.
Once a matter was completed, the independent counsel filed a final report.
The special division of the court could also find that the independent counsel’s work was completed and terminate the office.
A periodic review of an independent counsel for such determination was to be made by the special division of the court.
An independent counsel, prior to the completion of his or her duties, could be removed from office (other than by impeachment and conviction) only by the Attorney General of the United States for good cause, physical or mental disability, or other impairing condition, and such removal could be appealed to the court.
The procedures for appointing and removing the independent counsel were upheld by the Supreme Court in Morrison v. Olson. 290
Investigation by the independent counsel could compete with parallel efforts by congressional committees to examine the same issue.
Congress could decide to accommodate the needs of the independent counsel, such as delaying a legislative investigation until the independent counsel completed certain phases of an inquiry.
Although Congress could call on the Attorney General to apply for an independent counsel by a written request from the House or Senate Judiciary Committee, or a majority of members of either party of those committees, the Attorney General is not required to begin a preliminary investigation or to apply for an independent counsel in response to such a request.
However, in such cases DOJ was required to provide certain information to the requesting committee.
The independent counsel was directed by statutory language to submit to Congress an annual report on the activities of such independent counsel, including the progress of investigations and any prosecutions.
Although it was recognized that certain information would have to be kept confidential, the statute stated that “information adequate to justify the expenditures that the office of the independent counsel has made” should be provided. 291
The conduct of an independent counsel was subject to congressional oversight, and an independent counsel was required to cooperate with that oversight. 292
In addition, the independent counsel was required to report to the House of Representatives any “substantial and credible” information that may constitute grounds for any impeachment. 293
On September 11, 1998, Independent Counsel Kenneth W. Starr forwarded to the House a report concluding that President Clinton may have committed impeachable offenses.
The House passed two articles of impeachment (perjury and obstruction of justice), but the Senate voted 45-55 on the perjury charge and 50-50 on the obstruction of justice charge, short of the two-thirds majority required under the Constitution.
The independent counsel statute expired in 1992, partly because of criticism directed at Lawrence Walsh’s investigation of Iran-Contra.
The statute was reauthorized in 1994, but objections to the investigations conducted by Kenneth Starr into Whitewater, Monica Lewinsky, and other matters put Congress under pressure to let the statute lapse on June 30, 1999.
Unless Congress in the future reauthorizes the independent counsel, the only available option for an independent counsel is to have the Attorney General invoke existing authority to appoint a special prosecutor to investigate a particular matter.
For example, when the independent counsel statute expired in 1992 and was not reauthorized until 1994, Attorney General Janet Reno appointed Robert Fiske in 1993 to investigate the Clintons’ involvement in Whitewater and the death of White House aide Vincent Foster.
On July 9, 1999, Attorney General Reno promulgated regulations concerning the appointment of outside, temporary counsels, to be called “Special Counsels,” in certain circumstances to conduct investigations and possible prosecutions of certain sensitive matters or matters which may raise a conflict for DOJ. 294
Such special counsels would have substantially less independence than the statutory independent counsel, including removal for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Department policies.”
The regulations promulgated by Attorney General Reno remain in place today.
They were applied most recently when in May 2017 Deputy Attorney General Rod Rosenstein appointed former FBI director Robert Mueller as special counsel to investigate the Russian government’s efforts to “influence the 2016 election and related matters.” 295
289 For additional information, see CRS Report R44857, Special Counsel Investigations: History, Authority, Appointment and Removal, by Jared P. Cole.
290 487 U.S. 654 (1988)
291 28 U.S.C. §595(a)(2).
292 28 U.S.C. §595(a)(1).
293 28 U.S.C. §595(c).
294 28 C.F.R. Part 600.
295 Office of Deputy Att'y Gen., Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/press-relea ... 1/download.
TO BE CONTINUED ...
Re: CONGRESSIONAL OVERSIGHT MANUAL
Congressional Oversight Manual, continued ...
Updated January 16, 2020
Congressional Research Service
Statutory Offices of Inspector General
Statutory inspectors general (IGs), whose origins date back to the mid-1970s, have been granted substantial independence and authorities to combat waste, fraud, and abuse within designated federal departments and agencies. 296
To execute their missions, offices of inspector general (OIGs) conduct and publish audits and investigations, among other duties.
Established by public law as nonpartisan, independent offices, OIGs exist in more than 70 federal entities, including departments, agencies, boards, commissions, and government-sponsored enterprises. 297
296 For more information on statutory IGs, see CRS Report R45450, Statutory Inspectors General in the Federal Government: A Primer, by Kathryn A. Francis.
297 Three other IG posts are recognized in public law: for the Departments of the Air Force (10 U.S.C. §8020), Army (10 U.S.C. §3020), and Navy (10 U.S.C. §5020). This report does not examine these offices because they have a significantly different history, set of authorities, operational structure, and degree of independence compared to other statutory IGs.
TO BE CONTINUED ...
Updated January 16, 2020
Congressional Research Service
Statutory Offices of Inspector General
Statutory inspectors general (IGs), whose origins date back to the mid-1970s, have been granted substantial independence and authorities to combat waste, fraud, and abuse within designated federal departments and agencies. 296
To execute their missions, offices of inspector general (OIGs) conduct and publish audits and investigations, among other duties.
Established by public law as nonpartisan, independent offices, OIGs exist in more than 70 federal entities, including departments, agencies, boards, commissions, and government-sponsored enterprises. 297
296 For more information on statutory IGs, see CRS Report R45450, Statutory Inspectors General in the Federal Government: A Primer, by Kathryn A. Francis.
297 Three other IG posts are recognized in public law: for the Departments of the Air Force (10 U.S.C. §8020), Army (10 U.S.C. §3020), and Navy (10 U.S.C. §5020). This report does not examine these offices because they have a significantly different history, set of authorities, operational structure, and degree of independence compared to other statutory IGs.
TO BE CONTINUED ...
Re: CONGRESSIONAL OVERSIGHT MANUAL
Congressional Oversight Manual, continued ...
Updated January 16, 2020
Congressional Research Service
Inspector General Act of 1978
The majority (65 of 74) of IGs are governed by the Inspector General Act of 1978, as amended (hereinafter IG Act). 298
The IG Act originally created OIGs in 12 “federal establishments” and provided the blueprint for IG authorities and responsibilities. 299
The IG Act has been substantially amended three times since its enactment, as described below.
5. The Inspector General Act Amendments of 1988 (P.L. 100-504) expanded the number of OIGs in federal establishments and created a new set of IGs in “designated federal entities” (DFEs).
The act also established separate appropriations accounts for IGs in federal establishments and added to the annual reporting obligations of all IGs and agency heads.
6. The Inspector General Reform Act of 2008 (P.L. 110-409) established a new Council of the Inspectors General for Integrity and Efficiency (CIGIE); established salary, bonus, and award provisions; added budget protections for OIGs; required OIG websites to include all completed audits and reports; and amended IG removal requirements and reporting obligations.
7. The Inspector General Empowerment Act of 2016 (P.L. 114-317) aimed to enhance IGs’ access to agency records; vested CIGIE with new coordination responsibilities regarding audits and investigations that span multiple IG jurisdictions; amended the membership and investigatory procedures of CIGIE’s Integrity Committee; and required IGs to submit documents containing recommendations for corrective action to affiliated agency heads, congressional committees of jurisdiction, and others upon request.
Purpose and Role
Purpose
Pursuant to the IG Act, the principal purposes of IGs include:
conducting and supervising audits and investigations related to agency programs and operations;
providing leadership and coordination and recommending policies for activities designed to promote the economy, efficiency, and effectiveness and the prevention and detection of fraud and abuse in such programs and operations; and
keeping the agency head and Congress fully and currently informed about problems and deficiencies relating to such programs and the necessity for and progress of corrective action. 300
Role
To carry out their purposes, the IG Act grants covered IGs broad authority to:
conduct audits and investigations;
access directly the records and information related to agency programs and operations;
request assistance from other federal, state, and local government agencies;
subpoena information and documents and administer oaths when conducting interviews;
hire staff and manage their own resources;
receive and respond to complaints from agency employees, whose identity is to be protected; and
implement the cash incentive award program in their agency for employee disclosures of waste, fraud, and abuse. 301
Notwithstanding these authorities, IGs are not authorized to take corrective action themselves.
Moreover, the IG Act prohibits the transfer of “program operating responsibilities” to an IG. 302
298 5 U.S.C. Appendix (IG Act).
299 P.L. 95-452. Two IGs whose origins pre-dated the IG Act served as models: in 1976, in the Department of Health, Education, and Welfare — now Health and Human Services (P.L. 94-505) — and in 1977, in the then-new Department of Energy (P.L. 95-91). The IG Act establishes OIGs in many federal agencies and defines the IG as the head of each of these offices. The act assigns to the IG specific duties and authorities, including the authority “to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office.” See 5 U.S.C. Appendix (IG Act) §6(a)(7).
300 5 U.S.C. Appendix (IG Act) §2. IGs not covered by the IG Act generally have similar or identical purposes, although some IG missions may vary.
301 5 U.S.C. §4512. IGs operating under their own statutory authorities may have similar or identical authorities to those covered by the IG Act, although some IGs may have additional authorities or be prohibited from exercising the authorities listed in this report.
302 5 U.S.C. Appendix (IG Act) §8G(b); 5 U.S.C. Appendix (IG Act) §9(a)(2). One rationale for this proscription is that it would be difficult, if not impossible, for IGs to audit or investigate programs and operations impartially and objectively if they were directly involved in carrying them out.
TO BE CONTINUED ...
Updated January 16, 2020
Congressional Research Service
Inspector General Act of 1978
The majority (65 of 74) of IGs are governed by the Inspector General Act of 1978, as amended (hereinafter IG Act). 298
The IG Act originally created OIGs in 12 “federal establishments” and provided the blueprint for IG authorities and responsibilities. 299
The IG Act has been substantially amended three times since its enactment, as described below.
5. The Inspector General Act Amendments of 1988 (P.L. 100-504) expanded the number of OIGs in federal establishments and created a new set of IGs in “designated federal entities” (DFEs).
The act also established separate appropriations accounts for IGs in federal establishments and added to the annual reporting obligations of all IGs and agency heads.
6. The Inspector General Reform Act of 2008 (P.L. 110-409) established a new Council of the Inspectors General for Integrity and Efficiency (CIGIE); established salary, bonus, and award provisions; added budget protections for OIGs; required OIG websites to include all completed audits and reports; and amended IG removal requirements and reporting obligations.
7. The Inspector General Empowerment Act of 2016 (P.L. 114-317) aimed to enhance IGs’ access to agency records; vested CIGIE with new coordination responsibilities regarding audits and investigations that span multiple IG jurisdictions; amended the membership and investigatory procedures of CIGIE’s Integrity Committee; and required IGs to submit documents containing recommendations for corrective action to affiliated agency heads, congressional committees of jurisdiction, and others upon request.
Purpose and Role
Purpose
Pursuant to the IG Act, the principal purposes of IGs include:
conducting and supervising audits and investigations related to agency programs and operations;
providing leadership and coordination and recommending policies for activities designed to promote the economy, efficiency, and effectiveness and the prevention and detection of fraud and abuse in such programs and operations; and
keeping the agency head and Congress fully and currently informed about problems and deficiencies relating to such programs and the necessity for and progress of corrective action. 300
Role
To carry out their purposes, the IG Act grants covered IGs broad authority to:
conduct audits and investigations;
access directly the records and information related to agency programs and operations;
request assistance from other federal, state, and local government agencies;
subpoena information and documents and administer oaths when conducting interviews;
hire staff and manage their own resources;
receive and respond to complaints from agency employees, whose identity is to be protected; and
implement the cash incentive award program in their agency for employee disclosures of waste, fraud, and abuse. 301
Notwithstanding these authorities, IGs are not authorized to take corrective action themselves.
Moreover, the IG Act prohibits the transfer of “program operating responsibilities” to an IG. 302
298 5 U.S.C. Appendix (IG Act).
299 P.L. 95-452. Two IGs whose origins pre-dated the IG Act served as models: in 1976, in the Department of Health, Education, and Welfare — now Health and Human Services (P.L. 94-505) — and in 1977, in the then-new Department of Energy (P.L. 95-91). The IG Act establishes OIGs in many federal agencies and defines the IG as the head of each of these offices. The act assigns to the IG specific duties and authorities, including the authority “to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office.” See 5 U.S.C. Appendix (IG Act) §6(a)(7).
300 5 U.S.C. Appendix (IG Act) §2. IGs not covered by the IG Act generally have similar or identical purposes, although some IG missions may vary.
301 5 U.S.C. §4512. IGs operating under their own statutory authorities may have similar or identical authorities to those covered by the IG Act, although some IGs may have additional authorities or be prohibited from exercising the authorities listed in this report.
302 5 U.S.C. Appendix (IG Act) §8G(b); 5 U.S.C. Appendix (IG Act) §9(a)(2). One rationale for this proscription is that it would be difficult, if not impossible, for IGs to audit or investigate programs and operations impartially and objectively if they were directly involved in carrying them out.
TO BE CONTINUED ...