Inspectors general are popular with Congress right now. Conventional wisdom now seems to be: Let’s get the IG to look into it. I welcome the newly found appreciation for IGs, but I fear IGs may be the victim of their own success.
IGs are sometimes preferred even over the executive branch officials whose job it is to oversee the matter in the first place. IGs are also preferred over Congress’s own agency, the Government Accountability Office. The problem from the member’s perspective is that GAO may not get around to it fast enough or may not have made the specific findings and conclusions the member wanted.
Calling in the IG comes with certain risks. Congress should remember that IGs are not tame watchdogs, and they may bite members of Congress as well as executive branch officials. They may also be a danger to themselves, to the normal functioning of government, and to Congress.
But the greatest danger may be to the IGs themselves, specifically to their independence. IGs must be independent—this includes being independent of Congress. Saying no to Congress is sometimes the hardest thing an IG has to do. When I was an IG, I said no to members of Congress. Even in the few times I said yes, I completely changed the parameters of review.
IGs today must be extremely cautious about accepting a request from a member of Congress. To do so, the IG must have an independent basis for conducting audit, investigation, or inspection. This independent basis for review should also be clear and clearly stated, especially when the member of Congress and the IG are of the same party. Any hint of bias must never be allowed.
IGs are within the executive branch but function with some degree of independence. The notion of an independent inspector general within the executive branch remains suspect by those who insist on a unitary executive. The argument that this very independence is inconsistent with a unitary executive becomes more persuasive when IGs act on behalf of the legislative branch.
This also creates a problem under the separation of powers doctrine. The more IGs function under the direction of, and in response to, Congress, the more they appear to be functioning as part of the legislative branch. Simply put, the more members of Congress become involved in IG business, the more likely separation of powers is being violated, as well as independence being threatened. Egregious examples would include: (1) having a member of Congress hold a press conference to announce the IG investigation for which he asked and outlined the parameters of the investigation; (2) consolidating all the IGs (assigned to agencies) into one agency reporting directly to Congress, as one Senator recently suggested.
New legal issues are now popping up because of this, such as whether executive privilege applies to IGs. If a member of Congress is trying to get information covered by executive privilege, the member cannot do so by having the IG get it. If that is the case, would the IG have a “legislative function” for separation of powers purposes? It’s hard to deny a legislative function when a member of Congress announces and directs the investigation by listing a set of questions to be answered by the investigation.
Last, political requests from members of Congress often do not fall into the traditionally recognized functions of an IG. The IG Act specifically identifies auditing, investigations and inspections. What IGs do in response to members of Congress is usually characterized as “reviews,” because they do not fall into any of these customary responsibilities (audits, investigations, or inspections). This response should be a big clue that something is wrong and that IGs are being pressed to do things that are outside of their standard responsibilities.
The Council of Inspectors General on Integrity and Efficiency has set quality standards for IGs to follow in investigations, audits, and inspections, and other IGs conduct peer reviews to ensure that these standards are being followed by IGs. These congressional requests are not audits, investigations, or inspections, but a tertium quid with no standards to hold IGs accountable. Unfettered, IGs will not be immune to Lord Acton’s maxim: “Absolute power corrupts absolutely.”
Brian D. Miller was the General Services Administration inspector general for nearly a decade and is now a shareholder in the DC office of Rogers Joseph O’Donnell. He has been retained to offer an expert statement in the defense of the current GSA Administrator in her individual capacity in an IG matter. He also represents other clients who have been or who are being investigated by IGs.
NOTE: The bio at the end of this story has been updated from the original to clarify Mr. Miller's role in the GSA Administrator's case.