Legislative Limelight: Investigations by the United States Congress by John Ignatius Hanley A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Political Science in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Eric Schickler, Chair Professor Robert Van Houweling Professor Anne Joseph O’Connell Fall 2012 Legislative Limelight: Investigations by the United States Congress © 2012 By John Ignatius Hanley Abstract Legislative Limelight: Investigations by the United States Congress by John Ignatius Hanley Doctor of Philosophy in Political Science University of California, Berkeley Professor Eric Schickler, Chair Academic studies have often emphasized the law-making aspects of Congress to the exclusion of examining how Congress uses its investigative power. This is despite the fact that Congress possesses great power to compel testimony and documents from public and private persons alike, and that exercises of the investigative power are among the most notable public images of Congress. While several recent studies have considered investigations in the context of relations between the executive and legislative branches, far less effort has been committed to looking at how much Congress uses coercive investigative power to gather information on non- governmental actors. I develop several new datasets to examine the historical and recent use of investigations of both governmental and non-governmental institutions. A major component of this work is a comprehensive study of all authorizations of subpoena power granted to committees over the period 1792-1944. I find that for both Executive and outside subjects, divided control of government was positively associated with the volume of investigations in the House, but not in the Senate. Through extended qualitative examination of contemporary news stories and other secondary sources, I consider how partisan and institutional factors influenced the focus, scope, and intensity of investigative projects, as well as which legislative chamber and committee came to undertake the information-gathering work. I demonstrate how stronger party leaderships limited opportunities for members to conduct investigations, and where necessary, shifted politically-sensitive subjects to venues—within the chamber, to the other chamber, or to joint committees—that would be more favorable to the desired results. Nevertheless, it was in the Senate that individual members consistently possessed greater opportunity to initiate inquiries to develop policy expertise as well as those that could be dangerous to their own party’s interests. Confronting changes to how Congress has made such grants since World War II, I examine the exercise of investigative power in its capacity to generate media coverage and witnesses’ invocations of the Fifth Amendment protection against self-incrimination. Whereas the House and Senate experienced an extended period of near-parity in the quantity of investigations until the mid-1990s, since that time the Senate has been the more involved and consistent actor. The number of different investigative topics receiving media attention has also declined since the early 1990s. Increasingly, Congress’s investigative initiative focuses on a small set of subjects, which often receive simultaneous scrutiny from a number of different corners. 1 To help motivate the evolution of Congressional investigations, I consider the Legislative branch’s relations with the Executive and Judicial branches, as well as concerted attempts by the Legislature to build institutional capacity. I argue that the growth of the State and increased complexity of society have complicated Congress’s investigative task, requiring it to seek new methods and driving it towards greater reliance on the other two branches, particularly the Judiciary. Ultimately, Congress’s ability to summarily detain contumacious witnesses and police member qualifications and chamber legitimacy—the original means and ends of its powers as upheld in the 19th Century—are the weakest and most disused elements of its investigative repertoire. The work closes with a discussion of the possibilities for policy-making through investigations, and some ideas for encouraging greater member use of Congress’s investigative power. 2 Table of Contents Chapter 1: Introduction 1 Chapter 2: Inside and Out: Examining Government and Society, 1837-1944 10 Chapter 3: Towards an Explanation of House-Senate Differences 32 Chapter 4: Measuring Congressional Investigative Activity in the Post-War Era 71 Chapter 5: Locus of Control: Subpoenas and Contempt 93 Chapter 6: Conclusion 124 i Acknowledgements The dissertation that follows impels a great amount of recognition to others, because it could not have been completed without the critical interventions of a series of persons. Entering graduate school with a nebulous idea of what to study, little practical experience, less professional savvy, and a glut of hubris, hindsight reveals that I should not have completed much of anything. The most immediate credit is due to my dissertation committee—Eric Schickler, Rob Van Houweling, and Anne Joseph O’Connell. Eric generously took on the role of chair, reading drafts and helping to think of ways in which to develop a manageable project. Over time, I came to realize that a nod of Eric’s head is one of the best accolades your work can receive. That nod became the object of no small amount of squinting, turned-head screen examination, and living room pacing. In the process, I’d like to think I became a better political scientist. Rob Van Houweling was also a key figure in the development of this work. Aside from providing clear, unimpeachable recommendations on how to improve the analysis, Rob also gave strong, positive advice on how to position the project for academic positions and publications. And in a few instances, he seemed to read my mind and identify the precise worries I had about the project, giving encouragement in the moments I was least confident about my ability to finish. If there is indeed a Heaven, Nelson W. Polsby spends at least some of his time there reading the acknowledgements written by people he knows, and checking book indexes for “Plato.” Hello, Nelson. Nelson Polsby’s passion for social inquiry and his love for others made him an exceptional mentor. He saw things in people and institutions no one else saw, and asked questions no one else saw fit to ask. Only Nelson, for example, could conceive of something like the university as “a machine for producing interesting people to have lunch with.” I was extremely fortunate to have a front-row seat to Nelson’s wit and wisdom for the short time I knew him. His memory and example will be with me forever. Bruce Cain provided the crucial suggestion that I write a dissertation about investigations and not varieties of state legislature professionalism. Although my work habits and the distance between Berkeley and Washington caused me to lose touch with Bruce, I am grateful to him for his early input and enthusiasm for the project. Gordon Silverstein was a supportive committee member, an indefatigable booster, and an unfailing ally, even after he left Berkeley for YLS. He was there for me at all the difficult points of my graduate career, just as he was for so many other graduate students during his time at Berkeley. If you know even a little bit about institutions, or about friendship, it’s clear what a fantastic person Gordon is. I am very thankful to Jack Citrin, both in his role as Director of the Institute of Governmental Studies, and as a thoughtful, caring person I had the good fortune to see on an almost-daily basis. On occasions when I buy a lottery ticket, that quick flash of fantasy quickly solidifies around a house in Berkeley, and with that the wonderful prospect of dinner with Jack and Bonnie on a regular basis. One of the best things Jack did was to put me into contact with Peter D. Hart, whose own brand of thoughtfulness and caring challenges one to give unselfishly to students, colleagues, and everyone else around him. ii For financial support, I would like to thank the Charles & Louise Travers Department of Political Science, IGS, UC Berkeley’s Graduate Division, and the Maxwell School of Citizenship and Public Affairs at Syracuse University. Critical assistance was also provided by the Hosek-Thurston Center. I would be remiss to not thank Terri Bimes, Frederick Douzet, Michel Laguerre, Ethan Rarick, and Laura Stoker, who were important in my intellectual development at Berkeley. There is a long list—honi soit qui mal y pense!—of current and former graduate school colleagues who have made my time at Berkeley truly enjoyable. I consider myself blessed to count as friends Richard Ashcroft, Jennifer Baires, Ruth Bloch-Rubin, Margaret Boittin and Miguel de Figueiredo, Sara Chatfield, Adam Cohon, Greg Elinson, Sarah Garding, Stephen Goggin, Jill Greenlee, Rebecca Hamlin, Amanda Hollis-Brusky, Dave Hopkins, Bruce Huber, Athmeya Jayaram, Andrew Kelly, Ben Krupicka, Morris Levy, Manoj Mate, Dann Naseemullah, Toby Reiner, Phil Rocco, Mike Salamone, Alex Theodoridis, Kim Twist, and Matthew Wright. I was also fortunate during my time in California to get to know the Petaluma branch of the Sahl family—Charlie, Pat, Kathy, Jim, Jessica, Nick, and Dante. Finally, I would like to thank my sister Kathleen and my parents. From day one, my parents have sacrificed for my education and well-being. When the close-up photos of his toys came back completely black, they told their four-year-old that “exposure not sufficient” meant the photos were so good that the lab technicians kept them themselves. I cannot possibly repay their boundless generosity. And for such good people to interest themselves in politics, and put their trust and aspirations into the political system, means it must be truly wondrous and powerful. This too I will remember always, and it is to John and Marie Hanley that I dedicate this work.