Month: February 2025

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In Memoriam: Elise Bean, Public Servant

Elise Bean was a singular figure in the world of congressional oversight. She spent her career on the Hill working for Senator Carl Levin (D-Mich), most notably as his chief counsel and staff director for the Permanent Subcommittee on Investigations (PSI). There she led the staff of one of Congress’s most storied investigative committees under the chairmanship of a senator known for his commitment to congressional oversight and institutional prerogatives. Many of the most important investigations she led at PSI are discussed in a book she wrote after leaving the Hill in 2014, Financial Exposure: Carl Levin’s Senate Investigations into Finance and Tax Abuse (2018).

Elise passed away on January 14 of this year at the much too young age of 68. I was stunned to learn of her death the next day when it was announced at a panel on congressional oversight that she was supposed to moderate. I had last spoken with Elise a couple months earlier, and at the time she was in complete remission from pancreatic cancer. But the cancer returned suddenly. The loss it caused will be felt deeply by the entire congressional oversight community and her many friends and colleagues.

Although we overlapped on the Hill, I did not really know Elise until we met in connection with the Legislative Branch Capacity Working Group (Make Congress Great Again!), which was launched in 2016. Elise was a tireless advocate for enhancing congressional capacity and, in particular, for strengthening and professionalizing Congress’s oversight capabilities. In her post-Hill career, she helped to establish the Levin Center for Oversight and Democracy, a nonprofit organization dedicated to the development of bipartisan oversight capacity both in Congress and state legislatures. One of her significant initiatives as the director of the Levin Center’s Washington, D.C. office was to put on “oversight boot camps” at which hundreds of congressional staffers have been taught the techniques of conducting investigations.

Elise was also incredibly generous with her time. Each semester I taught congressional oversight at the George Washington School of Political Management, Elise enthusiastically agreed to guest lecture one of my classes. And her enthusiasm was contagious—student evaluations consistently rated her lecture as one of the highlights of the course. Elise would illustrate the “Levin Oversight Principles” with examples from her days at PSI. She was particularly fond of recounting PSI’s investigation into abusive practices at credit card companies. The lead witness at the committee hearing was a man named Wannemacher (aka “the wedding guy”), who had incurred $3,200 in charges for his 2001 wedding, paid nearly twice ($6,300) that amount to the credit card company over the next six years, and still owed more ($4,400) than the original debt. The power of such stories to mold public opinion was demonstrated by the fact that the company forgave the debt right before the hearing in a desperate (and unsuccessful) effort to keep the wedding guy from testifying.

One of the Levin Oversight Principles was to be “relentlessly bipartisan,” something that Elise always stressed. This is not an idea that is much in fashion these days; undoubtedly many people on both sides of the political divide would scoff at it as naïve, weak and impractical. But while Elise’s support for bipartisanship might have been partially rooted in an optimistic view of human nature that many (myself included tbh) do not share, it was also pragmatic. A bipartisan investigation is going to be far more effective in getting information and a sympathetic hearing from the public, and lasting reforms are far more likely when there is bipartisan support. And while ruthless partisanship may seem attractive in the moment, it has a tendency to backfire. (How many Senate Democrats wish today they had listened to Senator Levin when he warned of the consequences of nuking the filibuster for nominations?)

A corollary principle was to first “focus on the facts” in any congressional investigation. Just as the facts don’t care about your feelings, they don’t care about your political party. If the ultimate purpose of congressional oversight is to effect policy change that will promote the public good, as Elise deeply believed, establishing a clear and comprehensive factual record (preferably one agreed to by both the majority and minority) is the first step in identifying needed reforms. Having a debate about the best policy response based on a shared understanding of the facts, she would argue, is the most constructive way to proceed. And if you believe that your ideas and policies are truly the best, why would you fear agreement on the facts?

But whether or not you agree with Elise’s approach to congressional oversight, no one could dispute her commitment to her craft, her amazing work ethic, and her infectious spirit that made everyone around her better. As Senator Blumenthal noted in a tribute delivered on the Senate floor: “She looked for the good in people, in our government, and created more good in the world. Those who knew her will cherish and strive to continue her legacy.”

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The Exciting (Well, To Me) Conclusion of the JOR Memo

When we last left the saga of the JOR memo, Roberts had reached the (imho erroneous) conclusion that while executive officers “are subject to subpoena to testify before the United States House of Representatives or a committee thereof in connection with hearings for legislative purposes, the question as to whether the public interest requires them to refuse to answer a question or refuse to produce records in their custody or control is for their determination as a public officer.”

He does not stop there, however.  Instead, he turns to the question “whether by reason of the law creating the Federal Communications Commission and the quasi-legislative and quasi-judicial nature of its functions this agency is an executive agency and whether the officials thereof thus are answerable to the President of the United States or to the Congress.” Relying on Humphrey’s Executor v. United States, 295 U.S. 602 (1935), he found that the FCC “is a quasi-legislative and judicial body and is not part of the executive branch of the Government.” Therefore, he concluded, “it is further my opinion that a member or officer of the Federal Communications Commission is required to answer a subpoena by Congress and to testify or produce records of said agency subject to punishment for contempt if he refuses to do so.”

The logic of Roberts’s position seems to be this. Because executive agencies are “answerable” to the president alone, Congress may not exercise compulsory subpoena power with respect to them. However, because independent agencies are not “answerable” to the president, but only to Congress, Congress may subpoena them and punish their officers and employees if they fail to comply. While there is a certain internal consistency in this position, it founders on the deficiencies of the original premise, which we have already discussed and need not belabor here.

Perhaps more interesting is the question of why Roberts wrote this memo in the first place. It seems to be addressing a question that would be of interest to the FCC itself or someone at the FCC who had been subpoenaed by the House committee. But the memorandum is written strangely if he was concerned only with the legal obligations of the FCC and its officers. Roberts spends a good deal of the memo arguing that executive officers are exempt from congressional compulsion, yet that point is immaterial to his ultimate resolution of the issue. Moreover, however sincerely Roberts may have held his view, he must have known that this was hardly a settled issue and was one vigorously contested by Congress. If he were simply advising someone at the FCC of their legal obligations, he would have written something like “although there is a strong argument that executive officers cannot be punished for withholding information from Congress on the grounds of the public interest, this argument does not apply to the FCC because _______.” The fact that he was so emphatic in his conclusion regarding executive officers suggests that he may have been writing with the interests of others in mind.

Continue reading “The Exciting (Well, To Me) Conclusion of the JOR Memo”

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Getting Some Answers About DOGE

So I have been planning to write posts on so many topics that I have gotten around to none of them. But a social media discussion today impels me to mention a House procedure which seems well suited, as a first step, to addressing some of the many questions which have arisen regarding the so-called Department of Government Efficiency (DOGE).

Whatever else it may be, DOGE is not in fact a government department. So what is it? As explained by this CRS report, it is in theory a renamed version of an entity originally established in the Executive Office of the President in 2014 by President Obama. It was previously named the U.S. Digital Service and was supposed to help improve agency digital services. (Whether it actually did this is not mentioned). It sounds like the U.S. Digital Service was not originally  authorized or funded by Congress. Instead, the OMB director transferred funds to the U.S. Digital Service from the “Information Technology Oversight and Reform” appropriations account for the Executive Office of the President. However, it did receive funding in one of the gigantic COVID relief bills.

In reality, DOGE seems to be an entirely different entity than the U.S. Digital Service, though presumably it is funded through the same mechanism. But although there have been some executive orders laying out DOGE’s functions in skeleton form (including one since the CRS report was issued), many questions remain. These include the status of Elon Musk, who has been identified as a “special government employee” and who may or not be serving as the “USDS Administrator” who the executive orders identify as being in charge of DOGE. Regardless of whether Musk or someone else is formally in charge of DOGE, the question remains whether that position may be filled by someone who is not an officer of the United States and not appointed in accordance with the Appointments Clause.

In theory, as we discussed long ago, the White House is allowed to employ “advisers” who need not be officers of the United States because they exercise no “independent authority or sovereign power,” as Obama’s White House Counsel explained in 2009. I expressed some skepticism of this theory when it was raised to justify Obama’s various “czars,” and I see no reason to be less skeptical of its application to the head of DOGE, which seems to be even more blatantly operational and not simply advisory. In any event, there is no way to make an informed judgment about the constitutionality of DOGE’s operation without some more information on what it is doing and what powers, if any, it has.

There are many other questions about DOGE. Who is hiring the DOGE staff? What screening mechanisms are employed with regard to conflicts of interest? What information and systems are DOGE staff allowed to access at departments and agencies? What supervision are administration officials exercising (or permitted to exercise) with regard to the activities of DOGE staff within their departments and agencies? Does the White House understand DOGE to be covered by laws about transparency, privacy, and ethics and, if so, which ones and how?

One way to get such answers would be through the normal committee oversight process. However, at the moment there does not seem to be much interest on the part of Republican committee chairs in either the Senate or House. An alternative method of getting information, which can be employed by any member of the House of either party, is to offer what is known as a resolution of inquiry. As explained by CRS in a 2017 report:

A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.

Of course, introducing a resolution of inquiry does not guarantee it will be adopted by the House. But it should get you a floor vote (after 14 days in committee). And I would think that voting against a resolution of inquiry that simply tries to get some information about what the heck DOGE is doing may not be that easy for some Republican members of the House.

Anyway, its an idea.