How to get coronavirus oversight right

On April 2, House Speaker Nancy PelosiNancy PelosiTrump retweets personal attacks on Clinton, Pelosi, Abrams Biden swipes at Trump: 'Presidency is about a lot more than tweeting from your golf cart' Federal aid to state and local governments should rely on real numbers MORE (D-Calif.) announced to her colleagues the formation of “a special bipartisan oversight panel: The House Select Committee on the Coronavirus Crisis to be chaired by Majority Whip Jim ClyburnJames (Jim) Enos ClyburnScalise blasts Democrats for calling on certain companies to return PPP loans Harris, Warren seen as top candidates to be Biden VP House coronavirus panel demands large corporations return stimulus funds meant for small businesses MORE.”

Under House Rule I, the Speaker “shall appoint all select, joint and conference committees by order of the House.” Unfortunately, the House has not yet authorized the creation of such a select committee. To twist a familiar idiom, she appointed the horse to pull a nonexistent cart.

The real problem is the House is not in town to vote for such a committee and is not scheduled to be back for business until late April (at the earliest). Meantime, both houses have been meeting in pro forma sessions every three days.

ADVERTISEMENT

Could the Speaker call-up a resolution to create the select committee by unanimous consent on one of those pro forma days? Yes, except under the Speaker’s policies for the consideration of legislation, recognition for unanimous consent consideration of such measures is conferred only after clearance by the majority and minority leadership and the relevant committee chairs and ranking minority members. (Congressional Record, January 3, 2019).

The initial reaction of Minority Leader Kevin McCarthyKevin Owen McCarthyTrump, GOP go all-in on anti-China strategy The Hill's Morning Report - Presented by Facebook - Mnuchin: More COVID-19 congressional action ahead GOP pulls support from California House candidate over 'unacceptable' social media posts MORE (R-Calif.) to the proposed select committee was, “This seems really redundant.” Without his clearance and that of Rules Committee Ranking Member Tom ColeThomas (Tom) Jeffrey ColeHouse GOP lawmaker breaks with party to back proxy voting House conservatives voice concerns over minority rights during remote hearings House Rules Committee approves remote voting during pandemic MORE (R-Okla.), a unanimous consent request should not be propounded and would certainly not prevail.

While McCarthy did not elaborate on his redundancy concern, it is likely two-fold. First, members of the six House committees of jurisdiction and their staff worked tirelessly with their leadership to craft the bipartisan 800-plus page coronavirus response bill. Each committee already has special expertise and oversight and subpoena authority to monitor implementation of the CARES Act. Secondly, the Act itself sets-up three new oversight mechanisms to track the execution of various aspects of the bill:

  • It establishes a new Special Inspector General for Pandemic Recovery, subject to Senate confirmation, to conduct audits and investigations into investments made by the Secretary of the Treasury under the Act;
  • It creates a Congressional Oversight Commission of five members, two each from each house and party, and a chairperson appointed by the House Speaker and Senate Majority Leader. The Commission’s purpose is to oversee the implementation of the Act by the Treasury Department and Board of Governor of the Federal Reserve system; and
  • It creates a new Pandemic Response Accountability Committee to be established within the existing Council of Inspectors General on Integrity and Efficiency. The committee is to consist of the inspectors general of the departments of Defense, Education, Health and Human Services, Homeland Security, Justice, Labor, and Treasury, plus a chairperson appointed by the council. The committee’s mission is to prevent and detect waste, fraud and abuse, and to mitigate major risks that cut across program and agency boundaries.

On the one hand, the House Republican leader’s worries about redundancy may be well-founded.  One can imagine an army of overseers stepping all over each other’s toes with little to show for it except swollen digits.

On the other hand, given the multiple constitutional complaints expressed in the president’s signing statement regarding the Act’s oversight mechanisms, it is easy to understand Speaker Pelosi’s desire for a central oversight clearinghouse.

ADVERTISEMENT

Moreover, last week President TrumpDonald John TrumpTrump retweets personal attacks on Clinton, Pelosi, Abrams Biden swipes at Trump: 'Presidency is about a lot more than tweeting from your golf cart' GOP sues California over Newsom's vote-by-mail order MORE not only removed the Intelligence Community Inspector General for taking a whistleblower’s complaint to Congress (which led to Trump’s impeachment), but appointed a senior lawyer in the White House Counsel’s Office as the new Special Inspector General for Pandemic Recovery. As House Majority Whip James Clyburn (D-S.C.) put it, “this smacks of the proverbial fox guarding the hen house.”

The Speaker understandably wants an oversight mechanism that is not dependent on presidential approval or on sign-off by Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellPence: Next coronavirus relief bill would need legal shield for businesses GOP faces internal conflicts on fifth coronavirus bill State Department scrutiny threatens Pompeo's political ambitions MORE (R-Ky.). While Pelosi can wait until the House returns to create the Select Committee by the regular order (or call it back early), she might consider an alternate entity to be launched immediately – a bipartisan leadership taskforce on the coronavirus crisis. Such a task force was created in 1989 to consider and recommend ethics reforms in the House and executive branch.

The 1989 task force consisted of 12 members, six from each party, all senior leadership and committee members. It led to the enactment of the Government Ethics Reform Act of 1989.  Because the body was a task force, not a formal select committee, it had the flexibility to conduct both public hearings and private deliberations. It was tight, effective and truly bipartisan.

A similar task force for the coronavirus could rely on existing committee and leadership staff and expertise, and use the authority of any committee to subpoena evidence. The concept of an oversight coordinating task force should allay McCarthy’s stated concern about redundancy (and perhaps unstated concern about minority resource parity). Finally, it would ensure oversight commences as dollars now flow and our government works to meet crisis needs.

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress from Fair Play to Power Plays.” The views expressed are solely his own.