Congress is a legislative body, but it must have procedures that enable it to acquire information. Furthermore, Congress must keep a critical eye on those who administer the laws it enacts and who spend the money it appropriates. The business of Congress is not to govern the country, but rather to see to it that those who do govern perform their functions properly. To perform its legislative functions effectively, Congress must have the power to investigate. While the Constitution is silent on this subject, the courts have had little difficulty in concluding that the power to investigate is a necessary corollary of Congress's other powers, particularly in view of the implied powers provisions of Article I, section 8, clause 18.
In the leading decision on this subject, McGrain v. Daugherty (1927), Justice Willis Van Devanter noted that in legislative practice the power to secure needed information by means of investigations “has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution; and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state legislatures” (p. 161).
However broad the congressional power to investigate may be, it is necessarily subject to recognized limitations. In Quinn v. United States (1955), Chief Justice Earl Warren pointed out that the investigatory power; “cannot be used to inquire into private affairs unrelated to a valid legislative purpose” and that this power does not “extend to an area in which Congress is forbidden to legislate.” He added that “the power to investigate must not be confused with any of the powers of law enforcement,” which are assigned by the Constitution to the executive and the judiciary (p. 155). Warren stressed above all that the legislative power of investigation is subject to the specific individual guarantees of the Bill of Rights, notably the Fifth Amendment privilege against compulsory self‐incrimination.
These expressed limitations on the legislative investigating power are not as impressive as they may seem to be at first glance. It is abundantly clear that the powers of Congress, including the power to propose constitutional amendments on almost any subject, are broad enough to justify almost any investigation. Furthermore, when Congress authorizes an investigation, a legislative purpose is presumed by the courts. Witnesses who refuse to testify are subject to punishment for contempt, and members of Congress are not subject to liability (e.g., for slander) under the Speech and Debate Clause of the Constitution.
Recent years have seen widespread criticism of congressional investigating committees, mainly on the ground that their purpose is not always to provide information for legislation—but rather to subject individuals to public exposure, as in cases involving allegations of disloyalty. The courts have usually ruled that the fact that an investigation may expose someone to public calumny is incidental and does not invalidate the inquiry.
Legislative committees operate on the fiction that the destruction of a person's reputation is not technically punishment, from which it follows that most of the rights guaranteed to defendants accused of crime by the Constitution do not apply to persons who are being investigated by legislative committees. For example, the rule of double jeopardy does not apply to investigation procedures. A person cleared by one investigating committee in regard to allegations of subversive activity may be investigated further on the same charges. Other allegations leveled against legislative investigating committees relate to their taste for guilt by mere association and the denial of such elementary rights as the right to the full benefit of counsel and the right to prior notice of precise charges (see Due Process, Procedural). Clearly, the right most consistently sustained by the courts has been the privilege against compulsory self‐incrimination. Even if the privilege is pleaded in an evasive way to avoid public odium, courts protect the witness from any effort to compel admission of criminal activity, as in Emspak v. United States (1955). In Watkins v. United States (1957), the Court ruled that the investigatory power of Congress was limited by the free speech guaranty of the First Amendment.
Bibliography
- Alan Barth,
Government by Investigation (1955). - Robert K. Carr,
The House Committee on Un‐American Activities (1952). - Will Maslow, Fair Procedure in Congressional Investigations: A Proposed Code,
Columbia Law Review 54 (1954): 839–892
— David Fellman
