U.S. House of Representatives, Energy and Commerce Committee

Partisan Trends in Congressional Oversight, 1987-2016

Jason MacDonald | University of West Virginia

The results of the 2018 midterm elections have focused the attention of journalists, scholars, lawmakers and even President Trump on congressional oversight. By oversight, I mean the use of congressional investigations and hearings to examine decisions made in the executive branch. The new Democratic majority is expected to use its control of congressional committees to conduct such oversight in a manner that holds the Trump administration’s feet to the fire. Oversight will be in large part driven by partisan considerations. This is not new. Douglas Kriner and Eric Schickler established in their 2016 book on congressional investigations that such investigations throughout American history have contributed to undermining presidents, furthering the partisan goals of the party seeking to displace the president’s party in the White House.1

Yet, much oversight is conducted on a bipartisan basis. In studying oversight over the last several years, I have observed that it has been conducted regularly — during both divided and unified government. Oversight can produce outcomes that are, beyond debate, good for American democracy. From saving taxpayers money through reducing fraud, to improving the implementation of policy, to uncovering actions of career bureaucrats, political appointees, and regulated entities that are demonstrably illegal, congressional oversight can and does improve the efficiency, effectiveness and integrity of government.

For example, in a series of hearings that were the product of substantial oversight during the 1980s, the House Energy and Commerce Committee’s Subcommittee on Oversight and Investigations probed the problem of counterfeit and substandard fasteners. Such fasteners were falsely represented as being of the highest strength and, as such, capable of securing beams in nuclear energy plants and mining facilities, fastening parts in military aircraft and other weapons systems, and holding together materials in many other commercial and governmental applications. In a thorough investigation, OAI documented fatal accidents due to counterfeit fasteners, the disturbingly high volume of such fasteners in use, and the threat of such fasteners to public health, economic growth and national security. OAI coordinated a plan to guide the federal government and states in addressing the problem.2 These efforts were the basis for the enactment of the Fasteners Quality Act of 1990.much oversight is conducted on a bipartisan basis.

This is the type of oversight that is worth knowing about. In one sliver of my research, I have read and categorized opening statements of the chair and the ranking member of the OAI in the 449 hearings held by this subcommittee between 1987 and 2016. I began this research out of a sense that, when studying oversight, some political scientists (especially me!) did not talk much about the substance of oversight. Rather, scholars of oversight tended to assess the volume of oversight hearings and/or examine the different policy areas on which committee oversight focused. Although scholars have learned a lot from these studies, I hoped to learn more by reading (at least some of) the text of hearings.

Below, I present and discuss one aspect of the information I obtained from reading these opening statements: the degree to which committee chairs and ranking members engage in partisanship. By partisanship, I refer to language that faults a party for supporting policies deemed to be problematic (e.g., ineffective). Partisan language also includes statements that question the motives of the other party and/or its members (e.g., such motives are driven by partisanship or are misguided). Such language in principle could include language celebrating one’s own party or endorsing its policy positions. In practice, perhaps because oversight involves the criticism of policies, partisan language in these statements overwhelmingly involved criticism of the other party.

To be clear, most statements were not partisan, as the data presented below reveal. In reading the statements, I was struck by the degree to which Democrats and Republicans worked together on many issues for much of this period — and continued to work together in recent years on some oversight endeavors while opposing one another on other oversight matters. At the same time, oversight has trended in a partisan direction in recent years. I hope that examination of this trend is informative to people who care about, and are interested, in Congress. Readers may be interested in this trend as the 116th Congress (2019-2020) convenes because of one implication of higher levels of partisan oversight. Specifically, the higher proportion of hearings that are partisan, the less frequently OAI uses its scarce resources to address problems in a bipartisan fashion, as occurred with respect to substandard fasteners. If bipartisan oversight is more effective in addressing problems, as experienced lawmakers emphasize that it is, the trend toward partisanship is not a positive development.3

Of course, OAI hearings may not be representative of congressional hearings more broadly. OAI chairs and ranking members refer to the bipartisan tradition of this subcommittee in their statements. It may be that other (sub)committees’ hearings were more partisan than OAI’s during the period that I examine. However, if I observe partisanship creeping into the exercise of oversight on OAI, this may suggest that partisanship has seeped into every corner of congressional policymaking.

Partisanship in Opening Statements of Subcommittee on Oversight and Investigations Hearings

As noted, I have read the opening statements of chairs and ranking members in the 449 hearings that OAI held from 1987 to 2016, spanning the 100th to the 114th Congresses. These statements are found in the printed hearings of the Energy and Commerce Committee. Typically, chair and ranking member statements span from one-and-a-half to three pages each. The trends displayed and discussed below are the product of coding decisions that I made about the content of statements in these 449 hearings.4

Before discussing trends in partisanship in opening statements, it is useful to examine the frequency of bipartisan statements throughout the period. Figure 1 reveals trends in statements during which OAI chairs and ranking members highlighted the constructive contributions made by one another, explicitly “commended” one another, or used the words “bipartisan” or “bipartisanship” to describe the oversight embodied in hearings. The figure presents the percentage of statements that acknowledge such bipartisanship throughout the period. Shaded regions of the figure denote periods with Democratic chairs and Republican ranking members; unshaded regions denote role reversals.

graph of bipartisan support in OAI hearings

FIG. 1: SUPPORTIVE BIPARTISAN STATEMENTS IN OAI HEARINGS
Shaded regions correspond to periods of Democratic control of the House. Data spans the 100th-114th Congresses (1987-2016).

Most bipartisan statements come from ranking members. In these statements, after the chair has provided a statement, the ranking member endorses the hearing as being productive and/or bipartisan. The highest levels of such endorsements are presented in the solid line depicting Republican statements supporting Democrats between the 100th Congress (1987-1988) and the 103rd Congress (1993-1994) when the Republican Ranking Member Thomas Bliley (R-VA) regularly “commended” Chairman John Dingell (D-MI). Bliley did so in over half of OAI hearings in the 102nd and 103rd sessions.

In these statements, the chair usually does not weigh in on whether the hearing is bipartisan. And, as one will see, until the 112th Congress (2011-2012) the chair does not usually initiate partisanship. Rather, the chair describes issues to be covered in the hearing. And the hearing may promote partisan goals even if that does not show up in the chair’s opening statement. After the chair speaks, the ranking member serves as a kind of (not entirely unbiased) umpire who can declare that the hearing is bipartisan. The ranking member can also “call” the hearing partisan by responding to the chair’s statement with partisan criticism. And in many cases, no judgment is rendered, as the ranking member simply engages the issues covered in the hearing.

During the period of Republican control of the House between the 104th (1995-1996) and 109th (2005-2006) Congresses, Democratic ranking members provided rulings of bipartisanship, as seen in the dashed line. However, such assessments were offered less frequently than they were by Bliley. Such acknowledgments became rarer still during the 110th (2009-2010) and 111th (2011-2012) sessions (solid line) and Democratic ranking members in the final three sessions of the series (dashed line). Overall, the data suggest a decline in bipartisan oversight in OAI hearings in recent years.

The absence of bipartisan endorsements does not necessarily imply the presence of partisanship. In Figure 2, I chart the percentage of opening statements containing partisan language. Such statements sometimes included direct references to a party, as Ranking Member Ron Wyden’s (D-OR) statement did in the 104th Congress (1995-1996) when he denounced the Republican approach to reforming Medicare as a “recipe for still more fraud.”5 In other cases, members would refer to the “majority” or “minority,” as Rep. Bart Stupak (D-MI) did as ranking member in the 106th Congress (1999-2000) when he criticized Republicans during a hearing on “deadbeat dads” and welfare reform. Stupak noted that the “majority…very frankly” informed Democrats that they did not plan to have staff investigate the relevant program prior to the hearing. Instead, the hearing was to be a “‘feel good’ hearing.” Stupak insisted that such oversight did not live up to the quality of oversight done by OAI in the past.6

The shaded regions of the figure identify years during which Democratic lawmakers controlled the chair’s gavel and Republicans were ranking members, while nonshaded regions indicate Republican chairs with Democratic ranking members. One observes that partisanship was virtually absent in the subcommittee’s hearings until the 104th Congress. This changes abruptly after the Republicans’ historic victory in the 1994 midterm elections. Democratic ranking members leveled partisan criticism in response to oversight that was conducted under the Republicans’ purview during the 104th Congress, asserting in many cases that Republicans were not conducting oversight on a bipartisan basis. Democrats engaged in some form of partisan criticism in over half of the hearings during this session.

In very few instances did the new Republican chair, Joe Barton (R-TX), criticize Democrats. Instead, Barton and Republicans investigated laws and programs, criticizing agencies and the implementation of laws. Although Barton did not direct partisan invective at Democrats, OAI’s oversight was less bipartisan than in the past — at least according to Democrats. This view is reflected in the precipitous drop in bipartisan language from the 103rd to the 104th Congress displayed in Figure 1.

Chairman Barton’s statements did not contain partisan language, then. But the presence of partisan criticism in the (three) ranking members’ statements during the 104th Congress suggests that the majority’s oversight agenda was driven in large party by partisan concerns. Along these lines, many of the hearings during this period involved Republican oversight of environmental programs. Democratic ranking members expressed the view that Republicans, in fact, were not concerned with effective implementation of these programs. Instead, Democrats asserted, Republicans were using oversight as a tool to undermine the programs.

Subsequent to the 104th Congress, one observes a decline in criticism, though the Democratic ranking member during the 105th Congress, Rep. Ron Klink (D-PA), criticized Republicans in about one-fourth of the hearings. In one hearing on “Food and Drug Administration Management Concerns,” Klink lambasted Republicans for being unfocused and quipped that “I’m not sure if the clumsiness of the witness selection process has to do with the fact that this is April Fool’s Day or not.”7

Upon transition to a Democratic majority during the 110th (2007-2008) and 111th (2009-2010) sessions, Republican ranking members engaged in some partisan criticism in the subcommittee’s hearings, criticizing Democrats in just under 10 percent of the subcommittee’s hearings during the 110th Congress and just over 15 percent of the subcommittee’s hearings during the 111th Congress. (Majority) Democratic criticism of (minority) Republicans was nonexistent in these sessions.

U.S. House of Representatives, Energy and Commerce Committee

House Oversight and Investigations Subcommittee Chairman Tim Murphy (D-PA) questions panel on U.S. health response to Ebola outbreak.

Starting in the 112th Congress (2011-2012), though, both the Republican majority and Democratic minority increasingly invoked partisan criticism. The new chair of the subcommittee, Rep. Cliff Stearns (R-FL), provided the highest level of criticism of the minority party of any chair during the thirty-year period. As is evident from Figure 2, until the 112th Congress, nearly all partisan criticism came from the ranking member. Stearns, however, initiated numerous hearings by throwing down the partisan gauntlet. For example, in one oversight hearing during this session on the Affordable Care Act, the controversial law enacted during the 111th Congress by President Obama and congressional Democrats with no Republican support, Stearns addressed the issue of high-risk purchasing pools in insurance markets. Stearns noted that Democrats had been unsuccessful in encouraging individuals to sign up for insurance under the law and predicted that an advertising campaign by the Centers for Medicare and Medicaid Services toward this end was unlikely to be effective.8 In another hearing on White House visitor logs, Stearns excoriated Democrats, noting, “I understand that my Democrat colleagues may want to relitigate the past,” by arguing that the Obama administration compares favorably to the Bush admiration. 9 Stearns criticized Democrats along these lines in almost 25 percent of the subcommittee’s hearings during the 112th Congress.

This level of criticism was a significant departure from past practice. Chairs, no doubt, conducted oversight in a manner that was consistent with their parties’ agendas, especially beginning in the 104th Congress. This is one factor that led ranking members to engage in partisan criticism. Yet, chairs refrained almost entirely from initiating partisan criticism of the minority until Stearns’s chairmanship. Rep. Diana DeGette (D-CO), ranking member during the session, responded in kind to Stearns’s broadsides, defending Democratic positions and the Obama administration. One of DeGette’s main tactics involved praising the benefits of the ACA (that it had already expanded access to health care) while attributing partisan motivations to Republican attacks on the program. For example, in the hearing about high-risk pools referenced above, DeGette emphasized that it was “impossible” for her to understand how her “friends across the aisle” would seek to repeal the law given its demonstrable benefits for millions of Americans.10 The basis for criticism of the ACA, then, was partisan politics on the part of Republicans, according to DeGette.

PARTISAN CRITICISM IN OAI HEARINGS

FIG. 2: PARTISAN CRITICISM IN OAI HEARINGS
Shaded regions correspond to periods of Democratic control of the House. Data spans the 100th-114th Congresses (1987-2016).

After the 112th Congress, explicit partisan criticism of Democrats by the new chair of the subcommittee, Tim Murphy (R-PA), disappeared almost completely. Indeed, it was nonexistent in the 114th Congress (2015-2016) and there was only a single hearing (on the ACA) in which Murphy criticized “the minority” in the 113th Congress (2013-2014). Rather than pillorying Democrats, Murphy focused on criticizing the ACA (and, as one will see, President Obama). DeGette responded to Murphy’s critiques both by noting the ACA’s accomplishments, as described above, and also by criticizing Republicans for being unwilling to try to fix problems with the law. In particular, she repeatedly compared problems implementing the ACA to problems with the Republican-backed law, Medicare Part D, which was enacted in 2003. She noted that she had voted against Medicare Part D, which established a prescription drug benefit for senior citizens, as did most Democrats. However, when Medicare Part D experienced problems, Democrats did not seek to repeal it. Rather, she asserted, Democrats worked with Republicans to fix the problems. Republicans, however, were not reciprocating with respect to the ACA and instead wanted to “chill their constituents from signing up” for coverage under the law.11 DeGette’s criticism is apparent in the last three sessions (the dashed line) of Figure 2.

In summary, one witnesses next to no partisan criticism until the 104th Congress. At that point, the minority party (ranking member) responds to the majority’s (chair’s) agenda with varying levels of criticism and one chair initiates criticism of the minority party. On the whole, one observes an increase in partisan criticism at the end of the time series even though Chairman Murphy did not denounce Democrats frequently during the 113th and 114th sessions.one witnesses next to no partisan criticism until the 104th Congress

How could the chair criticize the ACA without engaging in criticism of Democrats? One tactic he employed was to focus on what he argued were negative consequences of the law. If Murphy had merely done this, he would have simply been conducting oversight to promote Republican priorities — and Democrats would have responded to these efforts, as DeGette did. Murphy also engaged in explicit criticism of President Obama and his administration. I do not include criticism of the sitting president in Figure 2, which focuses on language critical of political parties. However, the mere act of criticizing the president can be viewed as a partisan tactic. Kriner and Schickler’s research discussed above explains why. Since investigations undercut public support for the president, such oversight may improve the electoral prospects of the party conducting it. Criticism of the president, then, can be viewed as partisan criticism.

With this reality in mind, one can examine Figure 3 which charts the percentage of hearings in which the rival party (chair or ranking member) to the president’s party lodges critiques of the president, the Office of Management and Budget, or the “administration.” The shaded region indicates the presence of divided government — during which criticism of the president came from the subcommittee’s chair. The unshaded regions identify periods of unified government during which criticism came from the ranking member. (There was one instance in which a president was criticized by a member of his own party. This data point is not reflected in Figure 3).

CRITICISM OF THE PRESIDENT/ADMIN./OMB BY THE RIVAL PARTY IN OAI HEARINGS

FIG. 3: CRITICISM OF THE PRESIDENT/ADMIN./OMB BY THE RIVAL PARTY IN OAI HEARINGS
Shaded regions correspond to periods of divided party control of the House-presidency. Data spans the 100th-114th Congresses (1987-2016).

One sees that, until the 112th Congress, there was very little criticism along these lines. Almost half of the hearings during this session, though, included explicit criticism of the Obama administration by Chairman Stearns. Much of this criticism occurred during hearings on the ACA. In addition, Stearns also held a number of hearings on the Obama administration’s role in helping the Solyndra Corporation secure loans from the Department of Energy. Needless to say, the Obama administration was not treated with kid gloves by the chair in these hearings, contributing to the spike in the series one observes in the 112th Congress. This criticism continued under Chairman Murphy in the 113th and 114th sessions during which he criticized the Obama administration in roughly 31 and 17 percent of the hearings, respectively.

Taking trends in partisan criticism (displayed in Figure 2) and criticism of presidents (Figure 3) together, one observes a sea-change in the level of criticism issued by the subcommittee’s chairs starting in the 112th Congress. Before the 112th Congress, partisan criticism came mainly from the ranking member who was responding to the majority party’s oversight agenda. There were very few, and usually no, instances in which chairs opened with statements criticizing the other party explicitly (the dashed line for Democrats in years when they held the gavel; solid lines for Republicans in years when they held the gavel). This changed in the 112th when Chairman Stearns used opening statements to critique both Democrats and President Obama and in the 113th and 114th when Chairman Murphy criticized the president in a noticeable percentage of his opening statements.

Discussion

Reading opening statements of congressional hearings is fun. The chairs and ranking members serving during this period evinced intelligence, deep knowledge of policy issues and, at times, wisdom. Reading these statements is also frustrating. Notwithstanding these attributes, one observes that some hearings — ones that could have addressed problems constructively — were used to promote partisan goals.

Reading such hearings is sobering after reading others in which the OAI exercised the best practices of oversight, as discussed above with respect to the substandard fasteners issue. In reading hearings in which partisanship is prevalent, one witnesses the subcommittee squandering something precious: the attention of smart, well-meaning and capable elected representatives and their staffs. Rather than coordinating policy responses to problems, members diverted their attention to partisan bickering.

And to what end? Obviously, partisan messaging in subcommittee hearings is a product of party strategy. In the wake of the ACA’s enactment, Republicans wanted to impugn its effectiveness upon winning the gavel in the 2010 midterm elections, criticize President Obama and criticize Democrat’s defense of the act. This is exactly what Republicans did under Chairman Stearns during the 112th Congress. Such messaging added to a political narrative that was intended to engender Republican electoral gains. Although Republicans failed to defeat President Obama in 2012, their opposition to the ACA – which was reflected in OAI hearings – probably contributed in part to their gains in the 2014 midterms. This answers my question above about the desired ends of focusing on partisan messaging rather than conducting constructive oversight: some members of Congress might respond to my use of the word “sobering” above by arguing that using oversight as a means to pursue partisan goals is a perfectly reasonable thing to do. After all, if doing so can help promote a narrative that ensures majority status, then their party’s obviously correct views will be more likely to be reflected in agencies’ policy decisions. Some Democrats may take exactly this position at the beginning of the 116th Congress — and anyone who has read Kriner and Schickler’s work should not be surprised.there is a cost to partisanship in oversight

At the same time, there is a cost to partisanship in oversight. Stearns, an experienced member with substantial expertise, could have paid much more attention to improving government and policymaking during his last session in Congress. Republicans could have still pursued their efforts to repeal the ACA and built a political narrative helpful for electoral purposes, while reserving the oversight agenda for constructive endeavors. In the end, though, hoping for such an outcome — oversight not tainted by partisan warfare during a polarized era during which such conflict is the mode of operation — is naive at best and Panglossian at worst. It is the case that Democrats and Republicans continue to conduct bipartisan oversight on the OAI. However, its hearings are increasingly characterized by partisan criticism, and this partisanship reduces the volume of constructive oversight that occurs. When it comes to contemporary oversight, we probably do not live in the best of all possible worlds.



Notes

  1. Douglas Kriner and Eric Schickler, Investigating the President: Congressional Checks on Presidential Power (Princeton, NJ: Princeton University Press, 2016).
  2. Committee on Energy and Commerce. U.S. House of Representatives. “The Threat from Substandard Fasteners: Is America Losing Its Grip.” Washington, DC: U.S. Government Printing Office. Committee Print 100-Y, 1988.
  3. Carl Levin and Richard Lugar, “Democrats Can’t Check the White House Alone. Neither Can Republicans,” Roll Call, November 12, 2018.
  4. Given the brief nature of articles in Extensions, I cannot provide a full description of the coding criteria that I employed. Please contact me if you wish to read, or discuss, how I classified these statements.
  5. Committee on Commerce. U.S. House of Representatives. “Waste, Fraud and Abuse in the Medicare Program.”104th Congress, First Session. Washington, DC: U.S. Government Printing Office. Serial No. 104-21, May 16, 1995.
  6. Committee on Commerce. U.S. House of Representatives. “Supporting Welfare Reform: Cracking Down On Deadbeat Dads.” 106th Congress, First Session. Washington, DC: U.S. Government Printing Office. Serial No. 106-9, February 24, 1999.
  7. Committee on Commerce. U.S. House of Representatives. “Food and Drug Administration Management Concerns.” 105th Congress, Second Session. Washington, DC: U.S. Government Printing Office. Serial No. 105-75, April 1, 1998, pg. 3.
  8. Committee on Energy and Commerce. U.S. House of Representatives. “The PPACA’s High Risk Pool Regime: High Cost, Low Participation.” 112th Congress, First Session. Washington, DC: U.S. Government Printing Office. Serial No. 112-29, April 1, 2011, pg. 2.
  9. Committee on Energy and Commerce. U.S. House of Representatives. “White House Transparency, Visitor Logs, and Lobbyists.” 112th Congress, First Session. Washington, DC: U.S. Government Printing Office. Serial No. 112-42, May 3, 2011, pg. 2.
  10. Committee on Energy and Commerce, “The PPACA’s High Risk Pool Regime,” pg. 5.
  11. Committee on Energy and Commerce. U.S. House of Representatives. “2014: Seeking PPACA Answers.” 113th Congress, Second Session. Washington, DC: U.S. Government Printing Office. Serial No. 113-113, January 16, 2014, pg. 4-6.

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