Investigating Committees

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INVESTIGATING COMMITTEES

INVESTIGATING COMMITTEES have developed over two centuries into one of Congress's principal modes of governance. Since the mid-twentieth century, congressional investigations have grown increasingly spectacular even as they have become commonplace, invading business, culture, politics, and every other sphere of American life with increasingly powerful tools to compel testimony and production of documents.

Things started episodically. While the U.S. Constitution does not explicitly authorize Congress to conduct investigations, both the British Parliament and several colonial assemblies had done so repeatedly. In 1792, the first congressional investigation under the Constitution had authority to "call for such persons, papers, and records, as may be necessary to assist their inquiries" into the defeat of General Arthur St. Clair's army by Indians in the northwest. In 1827, Congress enacted a statutory penalty of up to a $1,000 fine and a year in prison for refusal to appear, answer questions, or produce documents. But when the Jacksonian era's so-called Bank War began five years later, the House of Representatives declined to launch an open-ended inquiry into the operations of the Bank of the United States. On at least one occasion, moreover, President Andrew Jackson declined to provide information requested by a House committee. In 1859, the Senate initiated contempt proceedings against a witness who refused to testify during an investigation of John Brown's raid on the federal armory at Harpers Ferry. By the time the nineteenth century closed, the idea had been established that congressional power to investigate reached both private persons and executive agencies. Congress had also learned that it was easier to force private persons to cooperate than the chief executive.

In the first half of the twentieth century, congressional investigations were aimed more frequently toward crafting federal legislation. In 1912, for example, the House Banking and Currency Committee, chaired by Arsene Paulin Pujo, investigated J. P. Morgan and the "money trust." Pujo Committee findings were instrumental in passage of the Federal Reserve Act of 1913 and the Clayton Antitrust Act of 1914. Senator Gerald Nye led another major investigation in 1934–1936 that again focused on Wall Street—along with munitions manufacturers and British propagandists. Nye's specific subject was U.S. entry into World War I, and his conclusions led to the Neutrality Acts of the mid-and late 1930s. During World War II, Senator Harry S. Truman led a third major investigation as chair of the Special Committee to Investigate the National Defense Program; and from 1939–1945 Martin Dies led a fourth—the Special House Committee to Investigate Un-American Activities. The latter's principal concern was communist infiltration of the Franklin D. Roosevelt administration, especially the New Deal's alphabet agencies.

In World War II's last year, the House institutionalized Dies's mission by creating a standing House Committee on Un-American Activities (HUAC). The Senate followed in 1951 by creating an Internal Security Subcommittee (SISS) and allowing Joseph R. McCarthy's Permanent Subcommittee on Investigations (PERM) free reign. Making use of a new medium, television (as would Senator Estes Kefauver's investigation of organized crime in 1950–1951), all three committees tried to make the general argument that President Truman and the Democratic Party were "soft on communism." HUAC broke the Alger Hiss case in 1948 and held hearings on communist infiltration of the motion-picture industry. Subpoenaed witnesses were always required to "name names" (that is, inform on others). Refusal to do so on First Amendment grounds meant jail for contempt of Congress. Refusal on Fifth Amendment grounds meant that the witness would stay out of jail but be thrown out of work and onto the Hollywood blacklist or one of the other dozen blacklists operating at the time. McCarthy initially focused in 1950 on communist infiltration of the Department of State. In 1953, he moved on to look for communists in the United States Army. The televised Army-McCarthy hearings led to McCarthy's demise largely because President Dwight D. Eisenhower made his own general argument: the army's work was too important to the nation's security to allow irresponsible congressional investigators to interfere. A few years later, Attorney General William Rogers coined the term "executive privilege" to signal White House refusal to cooperate with any congressional request for information.

Executive privilege was more the rule than the exception until the Richard M. Nixon administration (1969–1974) collapsed under the weight of the Watergate scandals. Both the House of Representatives, with Peter Rodino serving as chair, and the Senate, with Sam Ervin serving as chair, established Watergate investigating committees. Both Houses also established special committees to explore the intelligence community, best known by the names of their chairs (Senator Frank Church and Congressman Otis Pike). Other scandals inspired more committees, including the joint committee that investigated the Ronald Reagan administration's Iran-Contra affair, and the various committees that endlessly probed the Bill Clinton administration under the general umbrella investigation called Whitewater.

Two basic questions remain in dispute. First, what are the parameters of investigating committee authority? The Supreme Court has been less than a consistent voice here, generally coming down in favor of executive privilege on most occasions while opposing the claim when criminal violation is alleged. The controlling case, United States v. Nixon (1974), basically held that executive privilege challenges should be heard on a case-by-case basis. Second, are investigating committees useful tools for Congress when pursuing its principal legislative mission? Or are such committees more often than not blunt partisan instruments wielded by majorities against minorities?