Members of the resistance movement are counting the days until the 116th Congress begins so they can break out their favorite new toy of oversight power. They hope the exercise of this authority, with hearings wrapped in ceremony and held in historical rooms on Capitol Hill, will lend legitimacy to their unrestrained obstruction of the White House agenda.
The proper use of oversight is to inform legislation and to ferret out abuse of taxpayer resources. It should be welcomed regardless of the political environment. But conservatives should realize Democrats will not make proper use of the authority designed to obtain information necessary to inform legislation. It will turn into an extension of efforts to delegitimize President Trump. Singles will be counted as home runs as the press covers every endless inquiry with glee. The very same media outlets that played defense counsel for President Obama will be megaphones for Democrats investigating President Trump. But for all the enthusiastic cheerleading by liberals, there are concrete steps that the White House and conservatives can take to prepare and to level the playing field.
Democrats have signaled their oversight agenda, which includes going after political appointees. For many, the results will be measured in resignations or ruined reputations. Answering inquiries from Capitol Hill drains time and resources, usually from senior political appointees who are left to quarterback the operation, distracting them from advancing their more important missions. The seasoned Democrats know this, and they will use their oversight power to slow down the momentum of the administration by overloading the system with voluminous requests.
The administration will need to staff up with lawyers who have oversight experience. They need to do it soon because those professionals will also be in demand from law firms who represent the titans of industry who will undoubtedly be called early and often. But as excited as House Democrats may be for their new investigatory powers, they will soon realize that there are limits. As a general rule, oversight requests are just that. As requests, the practice of oversight is almost exclusively voluntary and takes an exhaustive and cumbersome process to get to the mandatory point.
It is not until a request goes unmet, a subpoena is issued by a chairman, a committee votes to deem the responding entity to be noncompliant, and then the same is done by the full chamber, that the matter proceeds towards something approaching mandatory action. At this stage, the full chamber could either refer the matter to the United States Attorney for the District of Columbia for criminal contempt proceedings or seek to initiate a civil action in federal court. In these cases, judges would likely defer to the two branches to work out a compromise. Employment of this full process is exceedingly rare because the legislative branch often loses in federal court, which weakens the power of future subpoena threats.
The divided 116th Congress means the administration and Republicans will find themselves dealing with matters of oversight requests more often than meaningful legislation. But they should not despair. Conservatives instead should strengthen their spines with knowledge that the law is on their side when it comes to the Constitution, which is designed for only legitimate oversight as opposed to the purely political and histrionic aims of the resistance. Thus not every stupid question deserves an answer.
This piece originally appeared in The Hill on 12/10/18