war on the rocks

At a Crossroads, Part III: Reasserting Congress’ Oversight Role in Foreign Policy

June 19, 2018

Congressional oversight of foreign policy hasn’t always been this way. A far cry from today’s marginalized and demoralized bodies, Congress’ foreign affairs committees once stood side-by-side with the presidency at the center of America’s foreign policymaking.

One need only look at Henry Cabot Lodge’s famous campaign leading to the Senate’s 1919 rejection of the Treaty of Versailles and the League of Nations, on the grounds that the Senate had not been adequately consulted, to see the impact of aggressive congressional oversight of foreign policy.

Or consider the heady era of the mid-20th century, when Congress faced a new international landscape shaped by two world wars and the emergence of the Cold War and mutually assured destruction. Far from shrinking from these responsibilities, Congress undertook a historic effort to write — and then re-write — the rules of the road for foreign policy. In 1951, lawmakers replaced the Marshall Plan with the Mutual Security Act, then overtook that legislation ten years later with the Foreign Assistance Act of 1961, which remains the foundational statute governing U.S. aid overseas. Congress enacted the War Powers Act in 1973 and, in 1976, passed the landmark Arms Export Control Act.

As congressional oversight of foreign policy gained strength during the Vietnam War, scholar Linda Fowler notes that “the Senate Foreign Relations Committee was at the vanguard of the resurgence of Congress in international affairs,” citing the panel’s establishment of a special investigative subcommittee to examine executive branch foreign policies. That subcommittee, chaired by Sen. Stewart Symington, identified a range of executive branch abuses, uncovered expansive military operations whose existence or scope had been previously undisclosed, and paved the way for the Church Committee and, ultimately, establishment of the Senate Select Committee on Intelligence. It also defined for Congress a role of comprehensive, sustained oversight of U.S. foreign activities, presence, and commitments. These debates were messy, complex, and occasionally partisan, but the results were substantial.

However, the 1980s and 90s saw the beginning of a dramatic decline in congressional engagement — and effectiveness — in conducting foreign policy oversight. Fowler’s work documents the decrease in oversight hearings conducted by both the Foreign Relations and Armed Services Committees in the Senate, beginning in the 1990s. Likewise, Congress’ ability to enact legislation setting out the priorities, expectations, and authorities of the State Department crumbled.

This final installment in a three-part series (part I addressed defense oversight and part II examined intelligence) about congressional national security oversight argues regular State Department authorization bills — and their focus on bureaucratic and programmatic management — are essential to effective oversight. And effective oversight in this arena has never been more urgently needed: Draconian cuts to both State and the U.S. Agency for International Development proposed in the Trump administration’s 2018 and 2019 budgets present America’s foreign policy establishment with a colossal crisis.

Regardless of the outcome of November’s mid-term elections, both the House and Senate foreign affairs committees will see new leadership. These new leaders will have an opportunity to set their committees on a path to reestablish their place at the center of foreign policymaking. Doing so will require a smart strategy for regaining the committees’ capacity to legislate, a renewed focus on structural and management issues impacting the foreign policy enterprise, investment in the committees’ own oversight capacity, and attention to long-simmering cross-committee jurisdictional challenges.

Righting the Legislative Ship

Congressional oversight of foreign policy has suffered from many of the same challenges as other committees: inadequate staff capacity, a disrupted appropriations process, inability to work cross-jurisdictionally on multi-dimensional challenges, and political polarization. However, the preeminent challenge by far for the House Foreign Affairs Committee and the Senate Foreign Relations Committee, the State Department’s primary oversight committees, is far simpler: their inability to legislate.

As Kay King noted in her study Congress and National Security,

Congress has failed since 1985 to overhaul the legislation that provides strategic guidance for foreign-assistance programs, instead making piecemeal changes that have often led to incoherence and excessive bureaucracy. Congress has produced a bill to guide State Department activities only sporadically since 2000. This has not been for lack of effort, as the HFAC and SFRC often hold hearings, mark up bills, and vote them out of committee (and, in the House, get them passed by the full chamber), only to see them fall victim to concerns about poison pill amendments or more urgent business…

The inability to legislate results from a range of factors, but three loom large. First, as King notes, foreign policy legislation is rarely seen as an urgent priority in light of the Executive Branch’s primacy in foreign affairs. Military force authorizations and sanctions legislation are the most common exceptions. Second, members have demonstrated a tendency to pursue controversial debates that derail underlying bills — in the form of the “poison pill” amendments King mentions or within the bills themselves. Common examples, which are often driven by narrow domestic constituencies, include international family planning, U.S. policy toward Cuba, and issues associated with the Israeli-Palestinian conflict. Conversely, a third reason is that foreign policy legislation rarely addresses priorities of broader voting bases, depriving such bills of an important impetus for Congressional action.

Foreign assistance authorization bills legislate priorities and permissions relating to assistance provided to other nations. State Department authorizations are meant to legislate authorities and expectations for State Department organization, processes, personnel policies, and overseas operations. These authorization bills are key vehicles for legislative oversight.

As King notes, both categories of legislation have been sorely lacking: Congress failed to pass a single State Department authorization bill from 2002 until 2016, when it passed a pared-down version short on both detail and impact.

The State Department is beset by numerous long-standing issues that effective oversight legislation could have resolved, ranging from a byzantine and dysfunctional bureaucratic structure to programmatic constraints that prevent or complicate implementation of desired policy approaches caused by legislation unamended in decades. A good example is the well-intentioned Section 660 of the Foreign Assistance Act, which constrains assistance to police forces and interior ministries despite those institutions’ central roles in combating terrorism, illicit trafficking, corruption, transnational organized crime, and other threats to U.S. national security. It is no accident that the Department of Defense, which is provided an annually refreshed authorization bill by Congress without fail, has long been viewed as a more effective organization than the State Department.

The inability of the two foreign affairs committees to legislate disempowers them vis-à-vis other committees, adding to power imbalances within the broader national security community. It also creates significant risk — which numerous events in the last few decades have borne out — of executive branch overreach. Fixing Congress’ foreign policy oversight, therefore, means forging a long-term legislative strategy that gradually rebuilds the committee’s oversight muscles. Here are a few suggestions for shaping that strategy:

First, start small and grow. Both the State Department and Foreign Assistance authorization bills can be so sprawling and cumbersome that they become too big not to fail. Such bills repeatedly stall over partisan debates on issues like abortion policies and support for the United Nations. When Congress passed the Department of State Authorities Act in 2016, the first legislation approximating a State Department authorization in 14 years, it was both a commendable success and a case study in the committee’s legislative challenges.

The bill covered tremendous ground, ranging from international adoptions to Inspector General audits of the Broadcasting Board of Governors. However, to secure passage, the committees had to craft a bill that was mostly non-binding, consisting largely of Sense-of-Congress statements and reporting requirements, thereby limiting its impact.

Rather than trying to cover the gamut in a single bill, foreign policy oversight committees should break down their priorities into small, digestible chunks that will encounter less political headwind. While the committees do pass targeted legislation on a regular basis, such legislation focuses almost exclusively on providing direction for specific foreign policies, rather than addressing structural or management issues. For example, three-quarters of the way through the current Congress, only one of the 17 bills or resolutions reported out of the House Foreign Affairs Committee — the Cybersecurity Diplomacy Act introduced following former Secretary of State Tillerson’s elimination of the State Department Cyber Coordinator’s office — addresses structural or management concerns. And there is much to do in this arena: A shortlist of priorities would include organizational reforms to address overlapping missions, byzantine bureaucracy, and dysfunctional hierarchies; updates to foreign assistance legislation to address emerging threats, obsolete programmatic constraints, and evolving interagency roles; reforms to personnel training and career development; a reexamination of resource allocation and oversight processes; and attention to festering infrastructure needs. But all of this doesn’t need to be done at once as part of an annual authorization bill. Many pressing needs represent low-hanging fruit that could be addressed with bipartisan support and would be unlikely to encounter much resistance or require significant time on the House and Senate floors.

The committees have developed a preference for seeking to address organizational and programmatic reforms through comprehensive authorization bills instead of narrow, focused efforts, perhaps because of challenges obtaining time for debating such legislation on the House and Senate floor, perhaps as a strategy for building coalitions of supporters interested in various individual provisions, or perhaps simply out of habit. Pressing forward with targeted, tailored bills to address discrete subsets of the foreign policy enterprise, on the other hand, would improve their ability to make progress on oversight priorities, even if they don’t succeed in addressing all of these priorities immediately. That progress would enable the committees to enhance their oversight and give much-needed direction to the State Department, while paving the way for broader legislation in the future by gradually eliminating lingering minor issues.

Second, focus on bureaucratics and programmatics. Too often, the committees have focused their energies on high-profile foreign policy crises rather than the bureaucratic and programmatic issues so vital to ensuring the executive branch can respond to such crises effectively. For example, during the 18 months of the 115th Congress, the House Foreign Affairs Committee has held 17 committee or subcommittee hearings on Iran and North Korea alone, and only two examining State Department organizational or management issues (excluding annual budget hearings, which cover a broad array of topics). Though U.S. policy toward North Korea and Iran is clearly important, in the long run, how the State Department and related agencies are organized, manned, resourced, prioritized, and empowered to execute activities will determine how effective America’s response is to these issues and any other crisis.

Third, prioritize results over turf. Recent years have provided numerous examples of instances in which the foreign affairs committees, needing to pass important legislation but failing to obtain floor time to debate it, have refused opportunities to attach their legislation to other measures. While piling non-germane legislation on defense bills is not ideal, these committees must be greedy and legislatively opportunistic to escape their current quagmire.

To draw upon an example I experienced first-hand as a staff member for the Senate majority leader, consider the Senate Foreign Relations Committee’s proposed Embassy Security Act, introduced in 2013 following the attacks against U.S. diplomatic facilities in Benghazi, Libya. After a handful of senators blocked this urgent bipartisan legislation from passage by unanimous consent, committee leaders had an opportunity to attach the legislation to the must-pass defense authorization bill, and did so in the Senate, but let it drop from the conference agreement due to concerns about the appearance of ceding jurisdictional ground to the Armed Services Committee. Instead, the bill languished unpassed for three years before some, but not all, of its provisions finally passed in 2016. The price for maintaining the jurisdictional high ground amounted to three years of inaction and loss of key elements of the bill, including allocations of funding for implementing critical security measures.

Other congressional committees are far more assertive in their efforts to add priorities onto moving legislative vehicles. The foreign affairs committees’ territorialism is shortsighted and counterproductive. Given the huge number of competing bills and amendments, it makes little sense to stand on principle while opportunities to achieve meaningful legislation go by.

Indeed, there are some benefits to be found in purposefully considering foreign policy and defense legislation simultaneously. Many experts have argued for a more holistic Legislative Branch approach to national security oversight, such as the development of a single national security budget. There is undoubtedly value in approaches that enable lawmakers to draw connections between disparate national security activities, and to consider trade-offs across the entire U.S. government’s equities. While a unified budget may be distant notion today, a more feasible approach may be structuring simultaneous debate of State Department and/or foreign assistance authorization legislation and defense authorization legislation.

Investing in Foreign Policy Oversight

A viable legislative strategy, buttressed by refocused oversight, would help foreign policy committees regain their relative power and relevance in Congress. But effective foreign policy oversight also requires that these committees address many of the same challenges plaguing their counterpart committees in the intelligence and defense arenas.

One such challenge is how to handle cross-jurisdictional issues in collaboration with other oversight committees. Like the other committees examined in this series, foreign policy oversight committees face numerous cross-jurisdictional concerns. Congress’ foreign affairs committees formally share jurisdiction with the banking and commerce oversight committees on a range of international trade issues, including export controls, overseas trade promotion, the International Monetary Fund, and the Committee on Foreign Investment in the United States. Informally, they compete with the armed services committees on oversight of overseas military operations, security assistance, and decisions to use military force. And while the committees assert jurisdiction over diplomatic service, the fact that numerous government departments — including the Departments of Agriculture, Commerce, and Treasury and the Federal Bureau of Investigation — maintain substantial foreign service or embassy attaché programs can introduce challenges there, too.

One of the trickier issues has been the committees’ roles in overseeing covert action programs and other sensitive intelligence matters. In recent years, leaks have appeared to increasingly put highly secretive covert action programs in the headlines. Given the approval roles of U.S. ambassadors as chiefs of mission in the countries where such actions are conducted, foreign policy committees have argued they ought to be privy to details about covert action programs before they are in the headlines. Additionally, media coverage of alleged covert action programs has dramatically affected sensitive diplomatic initiatives with important countries, both partners and adversaries. Yet, the committees are currently denied access to covert action compartments.

Committee leaders have sought arrangements that would enable the committees’ chairmen and ranking members to receive routine briefings from the intelligence committees on relevant covert action details. Such an approach seems rational and justifiable, and memoranda of agreement between these committees, in coordination with the Executive Branch, could set the terms of access and provide for policing of these privileges.

Another potential approach would be to formally create a “Gang of Sixteen” — expanding the current Gang of Eight, which consists of the Republican and Democratic lawmakers in the House and Senate and on the two intelligence committees, to include committee leaders of both the defense and foreign policy oversight committees in the House and Senate. While cumbersome, this approach would appropriately recognize the increasingly multi-dimensional nature of our national security environment. It would also enable more fruitful consideration of cross-jurisdictional equities and help guard against situations in which the Gang of Eight can become captive, voluntarily or involuntarily, to the intelligence community.

Cross-committee memoranda of agreement could improve cross-jurisdictional oversight in other areas as well, such as complex operations involving military, humanitarian, and governance dimensions. Likewise, as previous articles in this series have proposed for other committees, tools such as joint hearings and cross-committee task forces may be beneficial. Whatever the mechanism, increasing collaboration across artificial jurisdictional lines is an imperative for effective oversight in our current security environment, which no longer lends itself to stovepiped concepts of U.S. government action and influence.

Conclusion

Oversight is a profound responsibility, deeply embedded in the Constitution’s grant of powers to the Legislative Branch. Effective oversight means a serious, objective, and persistent examination of whether the Executive Branch is making use of the taxpayer resources entrusted to it in ways that are effective, efficient, accountable, and in accordance with law and congressional direction. It also means — critically, in this era of increasingly sophisticated threats and responses — helping to educate the public. To achieve both goals, it must be conducted with balance, bipartisanship, and restraint against tendencies to pursue political vendettas.

As this series has examined oversight committees in three core areas of our national security — foreign policy, defense, and intelligence — a few common themes have emerged. First, national security oversight committees are understaffed and under-resourced. Congress, which controls our nation’s purse strings, is simply choosing not to invest in oversight. In fact, according to research by the Congressional Research Service (itself woefully underresourced), the size of the staffs of these national security committees has not changed significantly in the past two decades, despite monumental changes in the national security landscape.

According to the Congressional Research Service’s research, from 1987 — before the fall of the Berlin Wall, the rise of the internet, or the emergence of the 24-hour news cycle — to 2016, the number of professional and support staff serving on the Senate’s Armed Services, Foreign Relations, and Intelligence Committees actually declined by one staff billet. Congress spends less than $25 million a year to sustain the House and Senate Armed Services Committees responsible for overseeing defense and related activities worth nearly three quarters of a trillion dollars annually. For such sensitive and high-stakes activities, we cannot afford to pinch pennies.

The lack of mechanisms for cross-jurisdictional oversight is an equally problematic shortcoming.  To conduct effective oversight of the myriad multi-dimensional challenges we now face — hybrid warfare, cybersecurity, terrorism financing, to name a few — cross-committee collaboration must become the norm rather than the exception.

Finally, there is a pressing need for greater focus on “bureaucratics and programmatics”: how each agency is organized, how it allocates its resources and aligns them against mission priorities, how effectively it executes these resources to achieve priorities, and how it manages its personnel. These are the nuts and bolts of oversight, but too often are misplaced by overemphasis on headlines, Tweets, and stump speeches.

One important question remains: Who will lead this essential charge? It is unlikely that the party leaders of each chamber, who have benefited from the decreasing power of committees in the decades since Senate Majority Leader Lyndon Johnson’s tenure, will take the initiative. Do we need a hero, some enlightened individual with a burning commitment to oversight and a fire for change in her belly? Or can committee leaders themselves ultimately lead the charge?

Each proposed change can be achieved by the committees themselves if they muster the will — with the qualification that appropriating more resources for committee staff would require the president’s signature to make it law. Each proposed change would benefit and empower the committees. What is needed is not a hero but a collective wake-up call in Congress’s national security committees.

Even setting aside the national security implications, oversight is the heart of the institution of Congress, and what makes the democratic system accountable to the public. At this delicate juncture, when our democracy is under assault from both the malign intentions of foreign adversaries and the benign neglect of its citizens, Congress must begin its defense within the halls of its own chambers.

 

Tommy Ross is a senior associate at the Center for Strategic and International Studies. He served as Deputy Assistant Secretary of Defense for Security Cooperation at the Pentagon and was the senior defense and intelligence adviser to Senate Majority Leader Harry Reid. He has also held other senior positions in the House and Senate.

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