Stanley I. Kutler: We’re Paying Congress for This?





[Stanley Kutler is the author of “The Wars of Watergate” and other writings.]

Great crises and problems often have become the subjects of extensive congressional investigation and oversight. Congress has made prominent inquiries into, for example, the Civil War, the Reconstruction, the “money trust” in the Progressive Era, the banking follies of the 1920s and the Great Depression, the prewar defense preparations at Pearl Harbor, the oversight of military contracts during World War II, the Korean War and the emerging character of Cold War foreign policy during the mid-1950s.

Congress’ work gave us transparency and usually led to useful, progressive legislation. And now comes Financial Services Committee Chairman Barney Frank’s choreographed extravaganza in the House of Representatives, supported by an echoing committee, with sound bites worthy of a night in the Borscht Belt. The ostensible probe of executive bonuses at AIG—forget about any investigation of the company’s decisions that so damaged the financial world—offered a painful reminder of Congress’ now largely ignored unique power of investigation, derived from its constitutionally sanctioned authority to legislate. True, Congress has abused this power from time to time, but that is no argument against its existence.

Rep. Frank provided a perfunctory, carefully staged hearing this month. His fellow committee members had been prepped and primed—seemingly by their press aides rather than by any legal staff. The “hearing” proceeded with hilarity and irony, especially coming from legislators who over the past 20 years had enabled much of the corporate chicanery. The mice that roared eventually produced only a parody of legislation, mercifully about to die.

Frank’s congressional sideshow made more imperative than ever the need for thorough, uncompromising investigations and hearings on any number of issues that have brought us to the present crisis. When Republicans controlled Congress, they disdained anything that might detract from the doings of a Republican administration or would interfere with their fundraising for the next election. Democratic control has offered little beyond the one-day, made-for-television soap operas of Henry Waxman, chairman of the House Committee on Oversight and Government Reform. Alas, these short showings proved to be only a television pilot, not fit for renewal or continuation.

Remember the brief appearance by Monica Goodling, a graduate of Pat Robertson’s school of law, who vetted Justice Department appointees for ideological purity during the Bush administration, making certain no elite liberals (or elite anything, it seemed) made the grade? Goodling acknowledged in testimony in 2007 that she had “crossed the line” when she improperly used political considerations to evaluate applicants. But she testified for just one day, and followed her attorney’s strategy of running out the clock. Why did the committee fail to follow up? Why do witnesses appear for quick one-offs, offering only a limited opportunity for probing questions? Owen Lattimore probably set the record when he testified for 12 days in 1952, with famed attorneys Thurman Arnold and Abe Fortas providing the best civil liberties that money could buy.

Two examples from the not-so-distant past are instructive for what we do not need. Traditional congressional investigations can turn out to be duds—witness the Iran-Contra hearings in 1987. A joint committee conducted aimless, fragmentary proceedings. The senators and representatives vied for precious television exposure. The co-counsels—Arthur Liman for the Senate and John Nields for the House—reflected different cultures and constituencies. Liman was a senior partner in Paul, Weiss, and he had been counsel for the New York state investigation of the 1971 Attica prison riot. Nields had prosecuted Mark Felt for his role in the FBI’s illegal break-ins. To watch the committee’s proceedings was to view two field generals marching backward, constantly stumbling into each other.

Despite their impressive talents, Liman and Nields simply were overwhelmed by the committee’s elephantine proportions and its festering internal rivalries. Their task was not helped by President Reagan’s “memory lapses”; Vice President George H.W. Bush’s insistence he knew nothing; the generally unhelpful testimony by administration officials, some of whom were convicted (and later pardoned by the first President Bush) for unlawfully withholding information from Congress; and by the competing criminal investigation by Special Prosecutor Lawrence Walsh. Back then, we did not appreciate the doings of Rep. Richard Cheney (R-Wyo.), whose minority report a decade later morphed into disturbing theories of the “unitary executive,” with its notions of unbridled executive power.

The Senate Select Committee on Campaign Finance in 1973—better known as the Watergate Committee—offered a contrasting image. The seven-man committee was led by Sam Ervin (D-N.C.), highly respected by his colleagues on both sides of the aisle and who, despite a folksy and sometimes bumbling appearance, was a shrewd, savvy man totally in command of the proceedings. He selected Samuel Dash as his chief counsel, and together they worked nearly four months to prepare their inquiry.

The first 37 days of the Watergate investigation offers a model for other inquiries. Ervin successfully co-opted ranking Republican committee member Howard Baker (R-Tenn.), while another Republican member, Lowell Weicker (R-Conn.), soon distanced himself from President Nixon’s supporters. Dash engaged minority counsel Fred Thompson in what may have been the mismatch of the century. Dash carefully prepared his case, working from the bottom up. He and his staff selectively leaked information, usually to pique public interest. Dash began the public hearings by questioning relatively obscure but important officials, such as the financial officers of Nixon’s re-election committee or relatively low-level White House aides. The media predictably criticized him, demanding that Dash instead call Nixon’s top aides. He did, but by the time they appeared, Dash had made his case.

Our current economic and fiscal crisis deserves serious, thoughtful consideration. AIG’s mistakes involve billions of dollars, not millions; similar poor, reckless choices were made throughout the financial sector. The administration of George W. Bush must account for a variety of actions that include torture and rendition; we have had only glimpses into how politics trumped science and good public policy across a broad range of issues in the Bush era. All that—and more—is grist for congressional inquiry and, inevitably, outrage. President Obama is offering up plans for financial recovery, but he is terribly reliant upon a corps of advisers, a number of whom enabled the causes of our present economic condition. Congress, with its own expertise, might prod the executive into accepting alternatives. But given its present reactive, blustering responses, it is now merely a pathetic giant.


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