We already know what the Supreme Court says about oversight: “It is the proper duty of a representative body to look diligently into every affair of government and talk much about what it sees. It is meant to be the eyes and voice, and to embody the wisdom and will of its constituents.”
To be the eyes and voice, and to embody the wisdom and will is an enormous and challenging responsibility. It is one that requires the ability to collect vast amounts of information that is not always readily available, or whose keepers are not eager to share it. And, sometimes, the eyes and voice also need to be backed up with teeth. That is where subpoenas come in.
Typically issued by courts or legislatures, a subpoena gives the issuing authority the ability to compel the production of information in the form of documents or testimony. Although we often hear about Congress issuing subpoenas, most state legislatures have subpoena authority in some form or another. Even if they do not often exercise that authority, it offers two primary benefits:
Most obviously, subpoena authority provides an important means of compelling the production of information when an entity refuses to produce that information voluntarily. When the Supreme Court defined Congress’ power to issue subpoenas in McGrain v. Daugherty after the Teapot Dome scandal, they wrote:
“A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change, and where the legislative body does not itself possess the requisite information — which not infrequently is true — recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete, so some means of compulsion are essential to obtain what is needed.”
Even in instances when entities provide information to a legislature without the use of a subpoena, we may have the subpoena power to thank. This is because of the second benefit of subpoena authority: its softer power as an incentive to comply with an information request. The mere specter of a subpoena – the unspoken possibility that one may be issued – is often sufficient for securing the desired information.
In any case, the effectiveness of a subpoena also depends on an institution’s ability to enforce a subpoena. In general, subpoenas issued by Congress or state legislatures are not self-enforcing. Legislatures must seek enforcement of their subpoenas either by bringing a civil action in court or by voting to hold a non-respondent in criminal contempt of the legislature and referring the matter to the executive branch for possible criminal prosecution.
While most states legislatures have some form of subpoena power, the source of that power, the part of the legislature in which it is vested, and the mechanisms for its enforcement vary widely. The power can come from the state’s statutes, the rules of legislative chambers or, as is the case in Maryland, even from the state’s constitution itself. The ability to issue subpoenas may rest with a committee or multiple committees, or it may require authority from legislative leadership or a vote of another committee or even an entire chamber. (As ever, you can find specifics on your state in our fabulous State Legislative Oversight Wiki.)
In Michigan, the power to issue subpoenas is granted to committees by both statute and by the rules of the House and Senate. Any exercise of this power also requires an authorizing resolution from the relevant chamber. A person failing to comply with a subpoena from the Michigan Legislature may be held in contempt of the Legislature, a misdemeanor charge the penalties for which can include five years in state prison or a fine not to exceed $1,000.
The General Assembly in Connecticut has broad investigative powers authorized by statute. Not only legislative leadership, but any committee “shall have the power to compel the attendance and testimony of witnesses by subpoena and capias issued by any of them, require the production of any necessary books, papers, or other documents, and administer oaths to witnesses in any case under their examination.” The State’s Attorney in Hartford (a prosecutor role appointed by an executive branch commission) may prosecute witnesses who fail to testify.
The Oklahoma House of Representatives’ rules authorize its committees and subcommittees, among other things, to “invite public officials, public employees, and private individuals to appear before the committees or subcommittees to submit information.” If the invitation does not yield results, “the chairperson of each committee with approval of the Speaker, may issue subpoenas and other necessary process to compel the attendance of witnesses” or the production of documents.
This week, The Oklahoman reports, the House did just that. After the Superintendent of Public Instruction did not respond to invitations to provide information to the House Education Committee, the committee chair and Speaker issued a subpoena, an instrument which, The Oklahoman notes, “is rarely used by the Oklahoma Legislature.” The subpoena invokes Article 5, Section 42 of the Oklahoma Constitution, which authorizes either chamber of the Legislature to “punish as for contempt, disobedience of process, or contumacious or disorderly conduct.”
“Where taxpayer money is concerned, we must be diligent,” said the chair of the Education Appropriations and Budget Subcommittee, whose signature appears on the subpoena. “The time for playing political games is over, and the time for answers is at hand.”
While the nature of subpoena power varies by state, its value is the same. If its mere persuasive effect helps the legislative branch collect the information it needs, so much the better. But when the time for answers is at hand – when the eyes and voice need teeth to back them up – subpoena power is a critical tool for oversight.
