It's About Time Congress Reasserts Its Oversight Authority

Resident Scholar Norman J. Ornstein
Resident Scholar
Norman J. Ornstein
Legislating is of course the key function of a legislature. But oversight of different sorts is just as significant. Congressional oversight is making a comeback these days, in many places, but the needs are overwhelming. Here are three.

Time magazine reported last week about the Alabama U.S. attorney's prosecution of former Gov. Don Siegelman (D) and the failure to follow up on allegations by Siegelman's prime accuser and prosecution witness Clayton Lamar "Lanny" Young Jr. about apparently illegal campaign payments to Republicans such as former state Attorney General Jeff Sessions (yes, that Jeff Sessions) and his successor as AG, William Pryor Jr., who now is a federal judge. The Time story is another stunning revelation about political chicanery and rot in the U.S. attorney system.

The relentless and politically timed prosecution of Siegelman has raised eyebrows since it was undertaken, but the story in Time shows another, more disturbing side--that politically connected officials from the U.S. attorney's office and the Justice Department, many with direct ties to Pryor and Sessions, ignored direct evidence of wrongdoing connected to those two and never followed up on the allegations. If they did not do so because of the lack of Lanny Young's credibility as a witness, why did he have great credibility with his allegations against Siegelman?

The scandal cries out for an independent investigation from someone with the strongest reputation and integrity.

The idea that prosecutors will prosecute or fail to prosecute selectively based on partisan or personal considerations is absolute anathema in a fair system of justice with the rule of law. It appears that the prosecutors in this case who had worked with or for Sessions or Pryor, or had family and business dealings with them, did not recuse themselves from these cases and did not pursue them. On the face of it, this raises huge questions and makes it clear yet again that the core of the U.S. attorney scandal is not just the federal prosecutors who were fired or targeted for dismissal, but those who were not targeted because they did the bidding of their political superiors at the Justice Department.

This rancid mess needs to be investigated thoroughly, starting with Alabama. I understand that the House and Senate Judiciary committees have their plates full with many priorities and also pressure to look ahead, not just back to a prior scandal under a now- departed attorney general. But the committees have to get to the bottom of this one. The Senate has another duty--confirming a new attorney general--that it can use to help the cause. The scandal cries out for an independent investigation from someone with the strongest reputation and integrity. An ironclad commitment to do so from Michael Mukasey should be a prerequisite for his confirmation.

On to a second story. The Blackwater security controversy has raised a lot of questions about Blackwater itself, and about the huge expansion of privatization in the war zone. It should also raise questions about the huge expansion of privatization outside the war zone, in all areas of government. There are big issues here--things like, what are the lines of authority and accountability when essential government functions are outsourced? A penetrating new book by legal scholar and former College of William and Mary President Paul Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do About It, lays out the case for a serious exploration of this trend and its consequences.

In the case of Blackwater and other security firms, it appears they operated in a completely gray zone in and out of the Green Zone; one that was not subject to military regulations on their conduct and not accountable to the Iraqi government or vulnerable to punishment for misdeeds. The idea that someone could kill an innocent person while drunk and be subject only to removal from the job and a token fine is simply wrong and unacceptable. That the State Department seems to have acted as an enabler over years to Blackwater, protecting the firm and deterring any examination of its conduct, is deeply troubling and calls for thorough oversight by Congress.

The oversight needs to be expanded into broader areas. There are questions of integrity and corruption: no-bid contracts going to politically connected buddies of executive officials; the temptation by government managers to give contracts to their former colleagues and then joining their companies at salaries several times their government pay, or drawing up contract specs to fit only their colleagues, buddies or themselves. Of course, this kind of back-scratching is nothing new and took place before there was much privatization, including with procurement officers and outside contractors, in defense and elsewhere. But the dramatic expansion of privatization makes the need for serious oversight of the process compelling, something that ought to be high on Congress' lengthy to-do list.

Example three is much smaller in scale, but also represents Congress fulfilling its function at its best. There is nothing sexy or newsworthy on the surface about the Patent and Trademark Office. But it performs absolutely essential functions in preserving and enhancing our competitiveness. For a couple of decades, former Rep. William Kastenmeier (D-Wis.) devoted himself to making workable and functional patent and trademark policy, getting no great public acclaim or national attention or appearances on network news shows. But he contributed mightily to the American economy and the protection of intellectual property. His work was a model of Congressional policymaking and oversight.

Now, as the Washington Post has reported, there is a huge backlog in applications for patents and trademarks, and a huge brain drain in the office. We know the details of all this because Rep. Tom Davis (R-Va.) got the Government Accountability Office to do a study.

Good for Davis. This kind of oversight is essential to make government work. The study is a prelude to the hard work of figuring out how we can attract, and keep, quality patent examiners and work to reduce the backlog. We need to do lots of oversight of huge scandals and malfeasance by government actors, agencies and political hacks. But Congress also has to devote itself to the less politically rewarding but important function of making sure all of government works for the people and our interests.

Norman J. Ornstein is a resident scholar at AEI.

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About the Author

 

Norman J.
Ornstein
  • Norman Ornstein is a long-time observer of Congress and politics. He is a contributing editor and columnist for National Journal and The Atlantic and is an election eve analyst for BBC News. He served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also served as a senior counselor to the Continuity of Government Commission. Mr. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future (AEI Press, 2000); The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann (Oxford University Press, 2006, named by the Washington Post one of the best books of 2006 and called by The Economist "a classic"); and, most recently, the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann, published in May 2012 by Basic Books. It was named as one of 2012's best books on pollitics by The New Yorker and one of the best books of the year by the Washington Post.
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