Chairman Goodlatte: Although the power of Congress to investigate is not set forth in any particular clause in the Constitution, congressional investigations trace their roots back to the earliest days of our Republic. In fact, what is thought to be the first congressional investigation occurred in 1792, when the House appointed a select committee to investigate the massacre of American troops under the command of Major General Arthur St. Clair. The resolution authorizing that investigation stated that the committee shall “be empowered to call for such persons, papers, and records, as may be necessary to assist their inquiries.”
Upon learning of the investigation, President Washington assembled his cabinet to seek their counsel. His cabinet, which included Thomas Jefferson and Alexander Hamilton, unanimously concluded that the House had every right to conduct its inquiry and request papers from the President. President Washington directed that the relevant papers be provided to the House and the War and Treasury Departments provided voluminous records to the committee.
Unfortunately, not all congressional investigations are met with the cooperation the first investigation received. Rather, sometimes Congress and its committees must rely on another inherent power derived from the Constitution to investigate effectively—the congressional subpoena power.
As the Supreme Court has observed, although “there is no [constitutional] provision expressly investing either house with the power to make investigations and exact testimony . . . the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function. . . Experience has taught that mere requests for information often are unavailing . . . so some means of compulsion are essential to obtain what is needed.”
That means of compulsion is often a subpoena issued by a congressional committee backstopped by a civil action filed in federal district court. In recent years, the House and its committees have pursued two such civil actions, including one filed by this Committee, to enforce compliance with congressional subpoenas.
The legislation we are considering today, the Congressional Subpoena Compliance and Enforcement Act, codifies and strengthens the existing civil enforcement mechanisms thereby reinforcing the powers granted Congress in Article I of the Constitution. This legislation creates a statutory framework for compliance with and enforcement of congressional subpoenas through a few targeted changes to federal law.
First, the bill puts in place a statutory requirement that recipients comply with congressional subpoenas. Second, the bill statutorily requires subpoena recipients to provide a congressional committee with a privilege log if they assert a legal privilege as a reason for withholding subpoenaed materials. Finally, the bill provides that congressional subpoena enforcement cases are to receive expedited review in the federal courts and that a congressional committee may request that a subpoena enforcement case be heard by a three-judge panel of the district court, with direct appeal to the Supreme Court.
While it is true that some of what is addressed by the bill is currently covered through negotiation with subpoena recipients and is recognized in the precedents of courts in the D.C. Circuit, the current statutory requirements related to compliance with and enforcement of a committee subpoena are limited. Indeed, the existing civil subpoena enforcement statute only covers the Senate and does not apply to Senate subpoenas issued to the Executive Branch. It is time that we put in place a statutorily created, expedited civil enforcement mechanism for congressional subpoenas. Relying on the existing framework to enforce congressional subpoenas has proved to be an inadequate means of protecting congressional prerogatives.
I thank Mr. Issa for introducing this legislation and urge my colleagues on both sides of the aisle to support it. This bill is a necessary step to strengthen Congress’s ability to exercise its Article I legislative powers.