Congressional oversight of the CARES Act could prove troublesome

A general view of the U.S. Capitol Building in Washington, D.C., on Monday, April 6, 2020, amid the coronavirus pandemic. More than a million people world wide have tested positive for the COVID-19 virus, and in the U.S. more than 300,000 people have tested positive as the Trump administration struggles to get a handle on the outbreak. (Graeme Sloan/Sipa USA)No Use UK. No Use Germany.

On March 27th, President Trump signed the CARES Act providing for more than $2 Trillion in federal spending in response to the COVID-19 crisis. Overseeing the outlay of relief funding from the bill will be no easy task, given its size, complexity and the backdrop of the 2020 election.

However, this is not the first time that a major government rescue package has included oversight measures. The 2008 Emergency Economic Stabilization Act created the office of the Special Inspector General for the Targeted Asset Relief Program the powers of which were strengthened by the SIGTARP Act of 2009. In just over a decade, SIGTARP has recovered $11 Billion in misspent funds and successfully convicted 380 fraudulent actors, leading many to consider it a success.

Members of Congress sought to mimic this success by including three major mechanisms to oversee spending within the CARES Act. The Pandemic Response Accountability Committee will be made up of Inspectors General from, at minimum, nine federal agencies, and be responsible for oversight of outlays for the entire bill. A new office within the Department of the Treasury, the Special Inspector General for Pandemic Recovery, will oversee the $500 billion Treasury fund for targeted loans to large businesses. Brian Miller, a White House lawyer and former GSA Inspector General, has already been selected for this role. Finally, a Congressional Oversight Commission will include four members appointed by party leadership in each chamber and a chairperson agreed to by the speaker of the House and the Senate majority leader. The Commission will oversee economic stability efforts by the Treasury Department and the Federal Reserve Board.

The CARES Act also includes funding increases for several preexisting oversight bodies providing more than $140 million for Inspectors General offices to investigate various aspects of the bill and $20 million in funds for the Government Accountability Office.

Even with these mechanisms and funding increases, Congress will face several unique challenges while conducting substantive oversight of pandemic relief.

First, the Trump Administration has indicated reluctance to cooperate with oversight inquiries. Immediately after President Trump signed the CARES Act, the White House released a statement outlining his constitutional concerns with the newly created Pandemic Response Accountability Committee and Special Inspector General for Pandemic Recovery.

This is not the first time that Trump has questioned the legitimacy of oversight efforts. The administration is currently tied up in several court battles regarding the executive branch’s ability to withhold information from Congress. On March 16th, nearly a year after the original request, the Supreme Court postponed oral arguments in a case regarding the House Ways and Means Committee’s efforts to obtain President Trump’s tax returns. The administration has also withheld information related to White House security clearances, natural disaster relief efforts, and other areas of potential misconduct.

Second, both the House and Senate are on recess and it remains unclear when they will return. Once members come back to Washington, the number of committee hearings they hold will likely be lower than normal with social distancing recommendations remaining in effect.

Hearings are an essential part of Congress’s oversight mandate as they provide lawmakers with a public platform to question administration officials that many rank-and-file members do not receive on a day-to-day basis. In place of hearings, members will have to rely more heavily on written correspondence. While letters have the potential to be more effective than hearings at obtaining detailed information, recipients are only legally required to respond to inquiries from committee chairs.

The current administration has made a habit of ignoring written information requests and it remains too soon to tell whether COVID-19 oversight will be met with similar resistance. Documents released by the House Oversight and Reform Committee on the availability of medical supplies from the federal government’s stockpile suggest that the administration is responding to at least some inquiries. Partial or private responses however, can make it difficult for committees to signal a lack of cooperation to the public.

Third, as their efforts to oversee the Trump administration response ramp up, House Democrats may find themselves confronting intra-party cooperation challenges. Due to the political visibility of the pandemic, committee chairs will likely compete to demonstrate their willingness to hold the administration accountable. Coordination among Democrats will be necessary to ensure that panels’ efforts are complementary, rather than competitive.[1]

Conflict between the parties will also create challenges. The creation of a Select Committee on the Coronavirus Pandemic already seems to be increasing tensions between Speaker Nancy Pelosi (D-Calif.) and Minority Leader Kevin McCarthy (R-Calif.) who indicated that Republicans will object to a unanimous consent request creating the panel. Speaker Pelosi has signaled the profile she expects the committee’s work to have by naming Majority Whip Jim Clyburn (D-S.C.) as chair. The committee will have subpoena power, but the House’s experience so far this Congress with having to go to court to try to enforce subpoenas illustrates the limits of that tool.

Finally, the Trump administration has become famous for vacancies and “acting” officials in the highest positions of government. By tolerating a large number of acting positions, the Senate has given up one of its most important tools for influencing executive branch conduct. On April 3rd, the President nominated five individuals to Inspector General positions. However, while the Senate remains on recess, those roles will continue to be served by officials in an acting capacity.

Four of the IG offices receiving funding increases from the CARES Act are currently headed by acting officials.[2] Notably, Glenn Fine, the Department of Defense Inspector General who was originally appointed as the Chairman of PRAC, only served in an acting capacity. On April 7th, President Trump removed him from the DOD IG role and appointed EPA Inspector General Sean O’Donnell, making Fine ineligible to be PRAC Chairman.

Congress will face many challenges protecting against fraud and helping an economy stalled by the pandemic, which may require members to find unique solutions for ensuring effective implementation of the CARES Act. With $2 trillion of taxpayer money on the line, nothing is more important than effective oversight.

The author wants to thank Molly Reynolds for her substantive contributions to this piece.

Note: This piece has been updated to correct the year in which SIGTARP was established. It was created in 2008 rather than 2009.

[1] Already, 11 House committees have been involved in oversight efforts related to the coronavirus response. The following House committees have sent letters or held hearings on some aspect of the Trump Administration’s pandemic relief efforts: Appropriations, Education and Labor, Energy and Commerce, Financial Services, Homeland Security, Judiciary, Natural Resources, Oversight and Reform, Science Space and Technology, Transportation and Infrastructure, and Ways and Means.

[2] The Department of Defense, Department of Education, Department of Health and Human Services, and the Department of the Treasury all have Acting Inspectors General whose offices received funding increases as part of the CARES Act.