House Select Committee on Homeland Security, Subcommittee on Rules

A New Permanent Standing Committee on Homeland Security?

Note: The views expressed in this statement are those of the authors and should not be ascribed to the trustees, officers, or staff members of the American Enterprise Institute or The Brookings Institution.

Thank you for inviting us to testify before your subcommittee on whether the existing committee structure in the House is adequately organized to address the policy and oversight issues associated with homeland security. A decade ago the two of us and our respective institutions collaborated on a Renewing Congress Project, which was designed to offer recommendations for improving the effectiveness of Congress and restoring its legitimacy within the American political system. As part of that effort, we testified before the Joint Committee on the Organization of Congress on problems with the committee system and made a number of suggestions regarding the number, size, assignments to, jurisdictions, processes, and coordination of committees. Some significant changes took place in the House committee system in the years thereafter, thanks largely to the efforts of David Dreier in 1994-95. But many of the same problems and issues remain. So do the basic principles of congressional committee organization and practice we articulated in 1993. We are pleased to collaborate once again on a question central to our earlier deliberation: how might the Congress best organize itself to deal with a new and pressing issue, one that is exceedingly complex and multi-faceted.

September 11 and its aftermath generated tumultuous changes in American government, including the most complex government reorganization in American history. The new Department of Homeland Security (DHS), a behemoth struggling to combine twenty-two agencies employing nearly 200,000 workers, faces daunting managerial challenges as well as immediate demands to deal with high-priority risks. While its responsibilities extend well beyond homeland security, many critical elements of the federal government's homeland security activities continue to reside in other departments and agencies. The new department will need all the help it can get—adequate funding, a clear sense of priorities, coordination of government-wide efforts by the Office of Homeland Security, strong presidential support, and an effective working relationship with Congress.

Just as importantly, the country needs strong, active and informed congressional oversight of DHS and of the broader homeland security mission of the federal government. Congress has taken some initial steps in this direction, by creating new appropriations subcommittees with responsibility for the homeland security budget, and by creating the House Select Committee to begin the process of focusing and coordinating congressional oversight of DHS and the broader strategy for protecting the nation's security at home. The critical question that must now be addressed by the House is whether the Select Committee should be a steppingstone to a major permanent standing committee of the House, with primary jurisdiction over both the department and the areas of policy it encompasses, and with its areas of jurisdiction spelled out in Rule X.

The reason for creating a permanent standing committee with primary jurisdiction is clear. Currently, according to the Administration, 13 full committees in each house, along with more than 60 subcommittees (a total of 88 panels overall,) share some jurisdiction or responsibility for homeland security. Of course, for many of these panels the piece of jurisdiction or the centrality of the focus is very limited. Nonetheless, many major pieces of responsibility for the new department are central to at least four authorizing committees in the House (Agriculture, Judiciary, Transportation and Infrastructure, and Ways and Means.) These four committees have primary jurisdiction and oversight authority for the Animal and Plant Inspection Service, the INS, the Coast Guard, FEMA, the Transportation Security Administration, and the Customs Service, which combined make up the lion's share of the new department. To leave this fragmentation means that the central purpose of creation of a new department, to merge functions and change cultures and outlook in these areas to focus on homeland security, will be seriously compromised.

There is certainly a case to be made for addressing an even broader question. The basic structure of the committee system, one designed in the aftermath of World War II to fit its era, including focus on the issues that dominated the times; to fit oversight of the executive branch by having committees in many cases parallel the agencies; and to be sensitive to representation of important groups like veterans and small business, has not changed in nearly 60 years. Should the committee system designed for the industrial age and the Cold War era be replaced by one designed to fit the information age and the post-Cold War era, with its problems of rogue states and terrorism?

We would be delighted if Congress used this opportunity to rethink the basics. But we know that such an ambitious reform, or even such focus, is not in the cards. Congress has too many other things to do, and changes in the committee system, even of a small variety, are excruciatingly difficult to achieve. We are painfully aware of what has happened to other efforts at fundamental reform, including especially the fate of recommendations of the Bolling Committee thirty years ago and of the Joint Committee on the Organization of Congress a decade ago.

We also know well that the emergence of a major national problem or creation of a massive new cabinet department is usually not enough to overcome turf considerations, power relationships, and the electoral interests of Members to create major new authorizing committees. The case of energy is particularly instructive. As many as 83 committees and subcommittees had jurisdiction over energy policy and related agencies in the 1970s. Among its sweeping changes, the Bolling Committee had recommended creation of a new energy committee in 1974. That proposal failed along with the other major recommendations. As the energy problem deepened, Speaker O'Neill in late 1976 (before the proposed creation of a Department of Energy) pledged to work for the creation of a new standing committee on energy. The fierce reaction from committee elders forced him to retreat from that pledge.

When President Carter made his energy plan the centerpiece of his first year in office, Speaker O'Neill created an ad hoc committee to help shepherd the Carter plan through the House on an expedited basis. He was unable to give this ad hoc committee primary jurisdiction over the omnibus energy plan. Instead, the Speaker crafted a plan allowing existing standing committees to work on their pieces of the action, but under time deadlines. Their marked-up legislative products were then given to the ad hoc committee to pull together into a comprehensive plan. On the House floor, the leaders of the standing committees managed their relevant portions of the bill, and these same standing committee leaders were primary figures in the subsequent conference committee. The ad hoc committee, under Thomas "Lud" Ashley of Ohio and with a broad representation of senior members, had a real impact, including, among other things, allowing passage of a gasoline tax that had been opposed by the committee of original jurisdiction, Ways and Means, and giving the overall product enough legitimacy that it survived attacks by amendment on the House floor.

As a model to manage a major bill cutting across several committees' jurisdiction, the Ad Hoc Select Committee on Energy was a strong one. It worked—but then was disbanded. No comparable efforts followed. The problem with fragmented jurisdictions in the energy area remained. The House came back to this continuing problem a few years later, after the second OPEC-driven oil embargo. In 1979, a successor to the Bolling Committee, chaired by Jerry Patterson of California, had as its major recommendation a consolidation of energy jurisdiction into a new standing committee. The result was déjà vu all over again. Fierce opposition from entrenched powerhouses on existing standing committees doomed the proposal. A more modest alternative, crafted by Rep. Jonathan Bingham of New York, was implemented, enhancing the coordinating role of the Interstate and Commerce Committee (renaming it Energy and Commerce) and giving it jurisdiction over "national energy policy generally." It also maintained jurisdiction and primary oversight authority for the Department of Energy. At the same time, the Bingham plan underscored the primary role of the Committee on Interior and Insular Affairs over nuclear issues and of other committees in separate areas of research and policy.

Both sweeping comprehensive reform of the Bolling variety, and narrower, single-issue committee reform of the Patterson variety, faltered. The energy experience is instructive, but it should not suggest to you that changes in Rule X are hopeless. Given the reality—a major new problem for the nation that will not diminish much less disappear in the foreseeable future and a massive new executive department requiring both a regular authorization and serious oversight—you must grapple with the need for jurisdictional review and change.

In some important respects, the problem facing Congress on homeland security is the same as the problem that faced the president in the immediate aftermath of 9/11. He initially eschewed the recommendation of the Hart/Rudman Commission to create a full-fledged agency of homeland security and opted for an office inside the White House—the equivalent, in many ways, of choosing a select committee over a standing committee. The office lacked line authority or budget power over the various agencies, bureaus, offices and departments dealing with facets of homeland security, relying instead on the importance of the issue, the stature of its director, Tom Ridge, and on his physical proximity to the Oval Office. Within months, the president realized that those assets were not enough. Following proposals developed in Congress, he recommended a large and far-reaching Cabinet-level department to deal with homeland security issues.

The House opted to create a select committee, with no primary legislative or oversight jurisdiction, relying for its authority on the importance of the issue, the stature of its chair, Chris Cox, and its other top members, and on the imprimatur of the Speaker and the Minority Leader. These assets, too, will not be enough for the long term. Things a select committee can do—highlight a problem, look at the bigger picture, coordinate the work and reconcile differences among other committees, prod the executive branch to implement reforms or focus on new areas, educate the public—will not sustain it over the long run and do not solve the fundamental problem. Some entity must provide the broader supervision for the massive DHS and pull the jurisdictional pieces together in a substantive way for Congress. Congress, of course, was explicit in this realization; the Homeland Security Act says that it is "the sense of Congress that each House of Congress should review its committee structure in light of the reorganization of responsibilities within the executive branch." In our judgment, there is no way out of the logic that there should eventually be a permanent standing committee on homeland security.

That said, we do not necessarily mean that the permanent standing committee should be exactly parallel to the executive department—that the House should create a colossus and in the process do violence to the very fabric of its committee system. Instead, we recommend that the House adopt a measured and multi-pronged strategy, including an incremental approach to jurisdictional change, done in stages so the new committee can absorb areas gradually and all the relevant committees can adjust to change. This strategy will also involve some overlapping jurisdiction (for example, sharing responsibility with Agriculture for the Animal and Plant Inspection Service, or with Transportation and Infrastructure for the Coast Guard).

Shared and overlapping jurisdiction, in this case, is not just to avoid opposition to change from existing committees. Historical memory, expertise and competing perspectives on homeland security matters are valuable commodities that should not be lightly dismissed. In addition, the fact is that entities like the Customs Service, the Coast Guard and the Animal and Plant Inspection Service have dual responsibilities. It was the president's judgment, as it had been that of the Hart-Rudman Commission beforehand, that the homeland security responsibility, previously a secondary or non-existent one, must now be primary in all these areas. To make it so means changing the bureaucratic cultures of all these agencies and bureaus, which can only be done by moving them into a new department with a new mission.

But the old missions do not disappear. The Customs Service still must facilitate trade, keep traffic moving efficiently at borders, and raise customs revenues. The Coast Guard must still facilitate transportation and promote safety in our coastal waters. The Animal and Plant Inspection Service must still protect sanitary conditions in meat and food processing plants. The Transportation Security Agency must still make sure that the aviation industry functions and that travelers can get from place to place without undue inconvenience. If homeland security is the only consideration, these functions can get lost or perverted along the way. So keeping shared jurisdiction in Congress can help make the dual functions work in the new department.

We also strongly recommend that the House, with the active participation of the Speaker, the Parliamentarian and the Committee on Rules, make full use of joint and sequential referrals, special rules, scheduling and moral suasion to establish effective coordination among committees and to ensure timely consideration of legislation. These mechanisms will be especially important in coordinating authorizers and appropriators of DHS activities with those overseeing the related homeland security activities in the FBI, the intelligence agencies, the Defense Department and other agencies. Finally, we recommend that the Speaker establish his own coordination mechanism regulating the required testimony of DHS officials before committees and subcommittees. This will be necessary to prevent the debacle of executives facing demands to testify in front of dozens of panels, often on the same subjects, draining valuable time from their efforts to protect the home front without any incremental addition to Congress's knowledge base or ability to fulfill its own responsibilities.