“Oversight Riders,” an article by Kevin Stack and Michael Vandenbergh in the Notre Dame Law Review, has received the Levin Center 2021 Award for Excellence in Oversight Research. The award recognizes scholarly papers examining important oversight issues to promote constructive research into oversight by legislatures.
Named in honor of former Michigan Senator Carl Levin, who retired in 2015, the Levin Center, which administers the award, was established at Wayne State University Law School with the mission of promoting high-quality oversight in Congress and the 50 state legislatures.
Stack holds the Lee S. and Charles A. Speir Chair in Law and Vandenbergh holds a David Daniels Allen Distinguished Chair in Law at Vanderbilt. Vandenbergh also serves as co-director of the law school’s Energy, Environment and Land Use Program and director of the Vanderbilt University Climate Change Research Network.
“Oversight Riders is compelling, timely and an original thesis on an important appropriations mechanism overlooked as a way to create personal incentives for executive branch officials to comply with congressional information requests,” the Levin Center stated in its announcement of the award.
In the article, Stack and Vandenbergh propose a solution to a long-established pattern of executive branch resistance to congressional oversight, which involves stonewalling, fruitless negotiations and questionable claims of executive privilege. “Although the level of executive branch resistance to congressional oversight was particularly extreme during the Trump Administration, the basic problem extends well beyond it,” they write. “The executive branch has long been playing constitutional hardball in response to Congress’s efforts at oversight—and winning.”
Stack and Vandenbergh note that claims of executive privilege are a particularly effective tactic employed by the executive branch to evade constitutionally mandated congressional oversight, referring to the claim as a “trump card” that “effectively forces the House or Senate” either to file time-consuming civil litigation to force compliance or drop the matter. “Congress, like any other civil litigant frustrated by its adversaries’ non-compliance with discovery requests, often backs down,” they write, noting that congressional subpoenas issued to facilitate oversight expire at the end of each session of Congress.
Stack and Vandenbergh propose a simple solution to stop the executive branch from running out the clock on potential oversight action: that Congress adopt appropriations riders that use “the power of the purse” to discourage efforts to thwart compliance. They argue that, by attaching what they term “oversight riders” to appropriations bills, Congress can deny the executive branch funding to resist congressional subpoenas and also create personal incentives for compliance that can extend beyond the end of any single session of Congress or presidential administration.
Stack and Vandenbergh summarize their thesis as follows: “Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and uses the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. To overcome this reliance on judicial enforcement of its oversight powers, Congress needs to think more creatively and aggressively. One way of doing so…is using Congress’s powers of the purse to condition funding to agencies on their compliance with congressional oversight requests.”