The Subpoena State

Introduction Congress has powerful investigatory powers including the ability to subpoena witnesses, request information and investigate key national issues. Without these powers it would prove difficult to investigate inappropriate government conduct, assess the effectiveness of current legislation and decide if new legislation is needed.

However, investigations can prove to be a large burden to individuals and organisations. They may be forced to provide large amounts of information, reveal private conversations and become involved in a highly public political issue.

The constitutional issue that arises is how far Congress can investigate. Congress dosen't have unlimited power.

The Power to Investigate

The Constitution doesn’t give Congress the explicit right to subpoena; however the Supreme Court has recognized that Congress have implied powers to investigate.

In McGrain v Daugherty (1927) it was found that the Senate can investigate the actions of the Department of Justice relating to alleged inappropriate conduct. It was recognised that Congress does have a right to seek information as it can potentially be an area where they can legislate. ¹

This highlighted that Congress will lack the ability to carry out their constitutional duties without some power to investigate. However, this power relates to an appropriate legislative aim. Congress isn’t a police force and so can’t investigate any private matter.

Investigation of Individuals

Congress can investigate individuals who may not have done anything wrong. They may be asked to provide personal information, business information and details about their relationship with others.

This can negatively affect an individual’s reputation, job and business. As they will have to attend public hearings they may not have a chance to defend themselves against the allegations.

This can cause an issue with balancing the need to investigate with giving individuals a fair trial. There needs to be some ability to investigate key issues; however there isn’t a constitutional right to ask individuals to provide information that may interest the legislators.

In Watkins v United States (1957) the Supreme Court overturned the contempt conviction of the witness who didn’t answer questions. It was emphasised that the committee’s powers needed to be clear to the witness and that the relevance of questions needed to be understood. ² Whilst this didn’t remove Congress’ power to investigate, it did highlight the need to set boundaries.

First Amendment

Investigations can become sensitive if they relate to political views, associations or campaigning. In Barenblatt v United States (1959) the Supreme Court upheld a contempt conviction relating to a witness who refused to answer questions about communist associations. The Supreme Court balanced the need to investigate with the individual’s First Amendment rights. ³ This shows that whilst the First Amendment may be an issue, the court will consider the context of the situation.

However it is a concern that if there aren’t enough reasons for legislative committees to investigate political associations individuals may feel reluctant to participate in legal political activities due to the risk of being exposed. This doesn’t have to be an explicit ban on free speech but the threat to expose individuals can cause pressure.

Congress must investigate within the constitutional rights.

Judicial Review

If there is an argument about the validity of a subpoena from Congress, the courts will have the ability to investigate. This can include the legitimacy of the committee investigating, the investigation having a proper legislative aim and if it is limited by constitutional rights.

In Eastland v United States Servicemen’s Fund (1975) it was recognised that there are strong constitutional protections for actions taken by Congress in a legitimate legislative capacity. This helps protect the independence of the legislature by preventing interference from the courts. ⁴

This shows how delicate the balance is. Whilst there should be some deference given to the subpoenas from Congress, the courts need to ensure that they don’t become too involved with supervising Congress.

Why it Matters

Congress can investigate to expose inappropriate conduct, provide information to help with legislation and ensure powerful bodies are held accountable. However, they need the ability to gain information which individuals/organizations may not willingly provide.

However there can be negative impacts for individuals who have not been charged with any wrong doing. Constitutional rights help ensure that the investigations are legitimate.

This becomes an important issue when investigations relate to political issues, private conversations and the conduct of public officials. It may become an issue about whether the investigation is for legitimate legislative purposes or for political purposes.

Conclusion

Congress need the ability to investigate to legislate effectively. However, this power can only be used within a constitutional framework where powers are split between government bodies and individuals have rights.

The courts need to ensure this balance is maintained without hindering legitimate investigations. The power to ask for answers is an important tool for the legislature. The Constitution ensures that it is linked to a legitimate public duty.

1. McGrain v. Daugherty, 273 U.S. 135, 174–75 (1927).

2. Watkins v. United States, 354 U.S. 178, 187–88, 197–98 (1957).

3. Barenblatt v. United States, 360 U.S. 109, 126–34 (1959).

4. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501–03 (1975).