Restoring Effective Congressional Oversight: Reform Proposals for the Enforcement of Congressional Subpoenas

Abstract

This paper proposes possible legislative reforms to Congress’s exercise of its contempt power in combating noncompliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, the paper seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. The Article provides a brief summary of the historic practice behind different options for responding to noncompliance with subpoenas (inherent contempt power, statutory criminal contempt, and civil enforcement of subpoenas), explores both political and legal incentives that create deficiencies for each option in the context of recent and current ongoing congressional investigations, and includes possible proposals for new avenues of redress for Congress. The Article will also include discussion of controlling Supreme Court decisions that clarify the exact nature of Congress’s investigative power and whether these new reform proposals would be in line with past Supreme Court decisions. It also specifically analyzes the option of legislative reform aimed at triggering salary diminution or imposing other fiscal pressures on agency officials as a tool for shaping political incentives that lead to better compliance with congressional subpoenas.

Keywords: Congress, Separation of Powers, Oversight, Federal Courts, Congressional Investigation, Constitutional Law