CRS Annotated Constitution

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Investigations of Members of Congress

When either House exercises a judicial function, as in judging of elections or determining whether a member should be expelled, it is clearly entitled to compel the attendance of witnesses to disclose the facts upon which its action must be based. Thus, the Court held that since a House had a right to expel a member for any offense which it deemed incompatible with his trust and duty as a member, it was entitled to investigate such conduct and to summon private individuals to give testimony concerning it.177 The decision in Barry v. United States ex rel. Cunningham178 sanctioned the exercise of a similar power in investigating a senatorial election.

Investigations in Aid of Legislation

Purpose.—Beginning with the resolution adopted by the House of Representatives in 1827, which vested its Committee on Manufactures “with the power to send for persons and papers with a view to ascertain and report to this House in relation to a revision of the tariff duties on imported goods,”179 the two Houses have asserted the right to collect information from private persons as well as from governmental agencies when necessary to enlighten their judgment on proposed legislation. The first case to review the assertion saw a narrow view of the power taken and the Court held that the purpose of the inquiry was to pry improperly into private affairs without any possibility of legislating on the basis of what might be learned and further that the inquiry overstepped the bounds of legislative jurisdiction and invaded the provinces of the judiciary.180


Subsequent cases, however, have given the Congress the benefit of a presumption that its object is legitimate and related to the possible enactment of legislation. Shortly after Kilbourn, the Court declared that “it was certainly not necessary that the resolution should declare in advance what the Senate meditated doing when the investigation was concluded” in order that the inquiry be under a lawful exercise of power.181 Similarly, in McGrain v. Daugherty,182 the investigation was presumed to have been undertaken in good faith to aid the Senate in legislating. Then, in Sinclair v. United States,183 on its facts presenting a close parallel to Kilbourn, the Court affirmed the right of the Senate to carry out investigations of fraudulent leases of government property after suit for recovery had been instituted. The president of the lessee corporation had refused to testify on the ground that the questions related to his private affairs and to matters cognizable only in the courts wherein they were pending, asserting that the inquiry was not actually in aid of legislation. The Senate had prudently directed the investigating committee to ascertain what, if any, legislation might be advisable. Conceding “that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits,” the Court declared that the authority “to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits.”184

While Sinclair and McGrain involved inquiries into the activities and dealings of private persons, these activities and dealings were in connection with property belonging to the United States Government, so that it could hardly be said that the inquiries concerned the merely personal or private affairs of any individual.185 But where the business, the activities and conduct, the behavior of individuals are subject to congressional regulation, there exists the power of inquiry,186 and in practice the areas of any individual’s life immune from inquiry are probably fairly limited. “In the decade following World War II, there appeared a new kind of congressional inquiry unknown in prior periods of American history. Principally this was the result of the various investigations into the threat of subversion of the United States Government, but other[p.95]subjects of congressional interest also contributed to the changed scene. This new phase of legislative inquiry involved a broad–scale intrusion into the lives and affairs of private citizens.”187Inasmuch as Congress clearly has power to legislate to protect the Nation and its citizens from subversion, espionage, and sedition,188 it has power to inquire into the existence of the dangers of domestic or foreign–based subversive activities in many areas of American life—in education,189 in labor and industry,190 and other areas.191 Because its powers to regulate interstate commerce afford Congress the power to regulate corruption in labor–management relations, congressional committees may inquire into the extent of corruption in labor unions.192 Because of its powers to legislate to protect the civil rights of its citizens, Congress may investigate organizations which allegedly act to deny those civil rights.193 It is difficult in fact to conceive of areas into which congressional inquiry might not be carried, which is not the same, of course, as saying that the exercise of the power is unlimited.

One limitation on the power of inquiry which has been much discussed in the cases concerns the contention that congressional investigations often have no legislative purpose but rather are aimed at achieving results through “exposure” of disapproved persons and activities: “We have no doubt,” wrote Chief Justice Warren, “that there is no congressional power to expose for the sake of exposure.”194 Although some Justices, always in dissent, have[p.96]attempted to assert limitations in practice based upon this concept, the majority of Justices has adhered to the traditional precept that courts will not inquire into legislators’ motives but will look195 only to the question of power.196 “So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”197


177 In re Chapman, 166 U.S. 661 (1897).
178 279 U.S. 597 (1929).
179 4Cong. Deb.862,868,888,889 (1827).
180 Kilbourn v. Thompson, 103 U.S. 168 (1881).
181 In re Chapman, 166 U.S. 661, 670 (1897).
182 273 U.S. 135, 178 (1927).
183 279 U.S. 263 (1929).
184 Id., 295.
185 Id., 294.
186 The first case so holding is ICC v. Brimson, 154 U.S. 447 (1894), which asserts that inasmuch as Congress could itself have made the inquiry to appraise its regulatory activities it could delegate the power of inquiry to the agency to which it had delegated the regulatory function.
187 Watkins v. United States, 354 U.S. 178, 195 (1957).
188 See Dennis v. United States, 341 U.S. 494 (1951); Barenblatt v. United States, 360 U.S. 109, 127 (1959); American Communications Assn. v. Douds, 339 U.S. 382 (1950).
189 Barenblatt v. United States, 360 U.S. 109, 129–132 (1959); Deutch v. United States, 367 U.S. 456 (1961); cf. Sweezy v. New Hampshire, 354 U.S. 234 (1957) (state inquiry).
190 Watkins v. United States, 354 U.S. 178 (1957); Flaxer v. United States, 358 U.S. 147 (1958); Wilkinson v. United States, 365 U.S. 399 (1961).
191 McPhaul v. United States, 364 U.S. 372 (1960).
192 Hutcheson v. United States, 369 U.S. 599 (1962).
193 Shelton v. United States, 404 F. 2d 1292 (D.C.Cir. 1968), cert. den., 393 U.S. 1024 (1969).
194 Watkins v. United States, 354 U.S. 178, 200 (1957). The Chief Justice, however, noted: “We are not concerned with the power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: ‘The informing function of Congress should be preferred even to its legislative function.’ Id., at 303. From the earliest times in its history, the Congress has assiduously performed an ‘informing function’ of this nature.” Id., 200 n. 33.
In his book, Wilson continued, following the sentence quoted by the Chief Justice: “The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self–governing people is that people which discusses and interrogates its administration. . . . It would be hard to conceive of there being too much talk about the practical concerns . . . of government.” Congressional Government (Boston: 1885), 303–304. For contrasting views of the reach of this statement, compare United States v. Rumely, 345 U.S. 41, 43 (1953), with Russell v. United States, 369 U.S. 749, 777–778 (1962) (Justice Douglas dissenting).
195 Barenblatt v. United States, 360 U.S. 109, 153–162, 166 (1959); Wilkinson v. United States, 365 U.S. 399, 415, 423 (1961); Braden v. United States, 365 U.S. 431, 446 (1961); but see DeGregory v. Attorney General, 383 U.S. 825 (1966) (a state investigative case).
196 “Legislative committees have been charged with losing sight of their duty of disinterestedness. In times of political passion, dishonest or vindicative motives are readily attributable to legislative conduct and as readily believed. Courts are not the place for such controversies.” Tenney v. Brandhove, 341 U.S. 367, 377–378 (1951). For a statement of the traditional unwillingness to inquire into congressional motives in the judging of legislation, see United States v. O’Brien, 391 U.S. 367, 382–386 (1968). But note that in Jenkins v. McKeithen, 395 U.S. 411 (1969), in which the legislation establishing a state crime investigating commission clearly authorized the commission to designate individuals as law violators, due process was violated by denying witnesses the rights existing in adversary criminal proceedings.
197 Barenblatt v. United States, 360 U.S. 109, 132 (1959).
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