Congressional power of investigation

Power of Congress to demand information from people, orally or in writing, and to punish those who refuse to cooperate.

Congressional committees usually secure information by summoning individuals to testify orally at hearings and to provide necessary documents. Most of those summoned want to testify and thereby have input into the legislative process, but some refuse to cooperate. Congress has always acted on the assumption that it has the power to punish these people for contempt.Contempt power of Congress In the nineteenth century, several hostile witnesses were arrested and confined in the basement of the Capitol or in the District of Columbia jail. Because these arrangements were awkward, Congress created a court procedure to punish contempt of Congress as a federal crime in 1857. In McGrain v. Daugherty[case]McGrain v. Daugherty[MacGrain v. Daugherty] (1927), the Supreme Court held that the contempt power in such cases was inherent in the legislative process and was therefore an implied power of Congress.

Most of the Court’s pronouncements on Congress’s investigative power were made during the Cold WarCold War. As part of efforts to prevent communist spying and subversion in the United States, congressional committees used hearings to expose people who might have procommunist sympathies. Because Congress did not use this information to pass anticommunist legislation, these hearings were denounced as “exposure for the sake of exposure.” The exposed witnesses and the people they were forced to denounce in their testimony were sometimes denied employment or otherwise harmed although they were not accused of committing any crimes.

Limits on Congress’s Power

In several rulings in the 1950’s, the Court made it clear that the power of Congress to investigate, while broad, is not unlimited. In Watkins v. United States[case]Watkins v. United States[Watkins v. United States] (1957), the Court held that Congress cannot compel testimony unless it is pursuing a legitimate legislative goal, a goal within the scope of its constitutionally enumerated powers. Most hearings are intended to help Congress write laws. However, the Court also held that Congress can collect whatever information it needs to exercise its oversight function, expose corruption, judge the validity of an election, or determine whether to expel a member. Although the Court usually presumed that a congressional investigation had a valid purpose, it occasionally required Congress to specify that purpose. Federal courts examined a number of congressional debates and authorizing resolutions to find congressional intent.

In the process of pursuing a valid legislative goal, Congress may demand only information relevant to that goal. An investigative committee does not have the power to ask vague or leading questions in the hope that something interesting will develop. Nor does it have the power to question witnesses simply to expose them to shame or humiliation. Before a person can be punished for refusing to answer a question, Congress must prove its pertinence to the legislative goal. The Court looked for evidence of pertinence in a number of legislative debates and in the statements of the chairperson of the committee holding the hearing.

The Bill of Rights

Because congressional investigations are government actions, they are limited by the relevant rights of individuals. The Court held that witnesses, under the Bill of RightsBill of Rights, are entitled to timely notification to appear, to know the goal of Congress, to have their testimony recorded exactly in writing, and to have counsel. They cannot, however, demand that closed hearings be open to the public.

Because the questions and answers in a congressional hearing are recorded, they can be used as evidence in a criminal proceeding. In particular, witnesses during the communist witch-hunts were afraid that their testimony could be used against them in Smith Act (1940) prosecutions meant to limit the political activities of the CommunistCommunism Party. In Quinn v. United States[case]Quinn v. United States[Quinn v. United States] (1955) and other cases, the Court held that the Fifth Amendment privilege against compulsory self-incriminationSelf-incrimination, immunity against is available during congressional hearings. Witnesses can invoke this privilege and refuse to answer questions if the answers could be used as evidence by the prosecution in a criminal proceeding. However, this protection is limited. Witnesses can use it to protect only themselves, not other people or organizations. If witnesses begin answering questions, the Fifth AmendmentFifth Amendment is considered waived, and they cannot refuse to answer subsequent questions on the same subject. Finally, witnesses cannot refuse to answer questions if Congress has conferred immunity from prosecution.

In Watkins, the Court ruled that the First Amendment protection of freedom of speech is available in congressional investigations. Its intent was to protect witnesses from being exposed to public censure by being forced to admit to holding unpopular political beliefs. However, in Barenblatt v. United States[case]Barenblatt v. United States[Barenblatt v. United States] (1959), the Court drastically limited the First Amendment protection available in congressional hearings. It ruled that as long as Congress has a valid reason for asking a question, witnesses cannot refuse to answer on the grounds that they will be forced to reveal a political belief. Likewise, journalists cannot refuse to answer questions on the grounds that they will be forced to reveal the sources for their information.

The Fourth Amendment protection against unreasonable searches and seizures may offer congressional witnesses some protection. Congress must provide a clear reason for wanting specific documents or records. It cannot make vague or general requests in hopes that something useful will turn up. Although a subpoena need not be as detailed as a search warrant, Congress must give witnesses a clear idea of the documents and records it is demanding. If Congress violates the Fourth Amendment’s requirements, the information it collects, even if made public, cannot be used in subsequent criminal prosecutions.

Further Reading

  • Beck, Carl. Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945-1957. New Orleans, La.: Hauser Printing, 1959.
  • Fisher, Louis. The Politics of Shared Power: Congress and the Executive. College Station: Texas A&M University Press, 1998.
  • Goodman, Walter. The Committee: The Extraordinary Career of the House Committee on Un-American Activities. New York: Farrar, Straus and Giroux, 1968.
  • House Committee on the Judiciary. Clarifying the Investigatory Powers of the United States Congress. Washington, D.C.: Government Printing Office, 1988.
  • Landis, James M. “Constitutional Limitations on the Congressional Power of Investigation.” Harvard Law Review 40, no. 2 (December, 1926): 153-221.
  • Taylor, Telford. Grand Inquest: The Story of Congressional Investigations. New York: Simon and Schuster, 1955.
  • _______. “Legislative Investigation.” In Encyclopedia of the American Constitution. New York: Macmillan, 1986.

Cold War

Contempt power of Congress

Self-incrimination, immunity against

Smith Act