and accounting for public funds. For this reason, "Congress has plenary power to exact any reporting and accounting it considers appropriate in the public interest."

United States v.

unusually, the

Richardson, 418 U.S. 166, 178 n.11 (1974). As this Court recognized in Universal Shipping Co. v. United States, 652 F. Supp. 668, 674 (D.D.C. 1987), investigation is "quintessentially a power of the legislative branch." This concern is particularly implicated in this case because the House Committee on Banking, Finance and Urban Affairs has been delegated an unusually important role in Defendant RTC's financing: Committee has oversight over both the RTC's appropriations and its authorizations (obviating most other congressional oversight of Defendants), and for this reason the RTC and its supervisory board are obligated by statute to provide additional information to the Committee. Sea 12 U.S.C. §§ 1441a(k) (4), (5) (semi-annual and annual reports); 12 U.S.C. § 1441a (k) (6) (appearance before Committee).

A primary constitutional rationale that underlies the investigative power is that Members of Congress cannot responsibly fulfill their obligations of office without full information regarding matters that are potential objects of legislation. The importance of informing legislators in this manner has consistently led the courts to interpret broadly and generously the power of investigation, as well as the corresponding duty of others, particularly officers of the

83-009 0-9536

Executive Branch, to respond to legitimate requests for information by Members of Congress. Thus, the power to:

conduct investigation is inherent in the

legislative process. That power is broad. It
encompasses inquiries covering the administration
of existing laws as well as proposed or possibly
needed statutes. It includes surveys of the
defects of our social, economic or political
system for the purpose of enabling the congress tɔ
remedy them. It comprehends probes into

departments of the Federal Government to expose
corruption, inefficiency or waste.

Watking v. United States, 354 U.S. 178, 187 (1958). Inquiries by Members of Congress must be deemed legitimate so long as the subject of inquiry is one "on which legislation could be had, • McGrain v. Daugherty, 273 U.S. at 177, and thus falling within the "legitimate legislative sphere." Dos v. McMillan, 412 U.S. 306, 314 (1973).

The inquiries at issue in this case clearly fall withic the "legitimate legislative sphere' and therefore are properly subject to the investigative activities of a Member of Congress. The established test is "whether the activities are 'an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to

matters which the Constitution places within the jurisdiction of either House.' Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504 (1975) (quoting Doe v. McMillan, 412 U.S. at 313 (in turn quoting Graval v. United States, 408 U.S. 606, 625 (1972))). In this case, the object of

7

Representative Leach's suit pertains directly to matters which

even respondents concede fall directly within the jurisdiction of

Representative Leach's Committee.

Representative Leach seeks

information regarding the Executive agencies his Committee oversees and those agencies' uses cf appropriated funds.' Securing that information is "an integral part of the deliberative and communicative processes" which are in turn essential to Representative Leach's participation in the "committee and House proceedings" addressing the RTC's and OTS' » dealings with Madison Savings & Loan. Eastland v. United States Serviceman'a Fund, 421 U.S. at 504 (internal quotations omitted).

B. The Historical And Constitutional Understanding of
Congressional Investigative And Oversight Functions
Indicate That Such Functions Are Not Constrained By The
Need For Congress To Act As A Whole Or Through Its
Majority Party.

Some powers ancillary to the congressional power of

investigation, such as the subpoena power, generally must be exercised by Congress as whole or by its agents acting pursuant to authority delegated pursuant to the various congressional and committee rules.' Nevertheless, the Constitution clearly

In addition to general oversight concerns relating to appropriations, the information sought by Representative Leach also would be relevant to a series of bills presently pending before Congress. For instance, both R.R. 2464, the Municipal Securities Reform Act, and H.R. 4097, the Depository Institutions Service Corporation Reform Act, raise legislative issues directly related to the failure of Madison Guaranty.

• See Eastland v. United States Servicemen's Fund, 421 U.S. at 504-06; Watking v. United States, 354 U.S. at 188; Buckley v. Yaleg, 424 U.S. 1, 109-13, 137-41 (1976) (investigative powers (continued...

8

contemplates that individual Members of Congress will

independently participate in the legislative process and thus have an independent claim to benefit from the power of inquiry. The Constitution provides:

The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by
Law, and paid out of the Treasury of the United States.
they shall in all cases, except Treason, Felony and
Breach of the Peace, be privileged from Arrest during
their Attendance at the Session of the respective
Houses, and in going to and returning from the same;
and for any Speech or Debate in either House, they
shall not be questioned in any other Place.

U.S. Const., art. I, § 6, cl. 1. By vesting rights in individual Members of Congress, these provisions were "designed to assure a co-equal branch of the government a wide freedom of speech, debate, and deliberation" and to bar Executive actions that "impinge upon or threaten the legislative process." Gravel v. United States, 408 U.S. at 616.

Thus, "[a]ll Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information." Murphy v. Department of Army, 613 F.2d 1151, 1156 (D.C. Cir. 1979). This affirmative right of inquiry mirrors, and is a necessary complement of, the protection against interference with the deliberative process accorded each Member of Congress.

(...continued)

vested in FBC officers appointed by Congress); McDonnell Douglas Corp. v. United States, 754 F.2d 365, 368 (Fed. Cir. 1985) (upholding General Accounting Office subpoena).

9

Both rights

..

the right of inquiry and right to participate in unfettered deliberation secure to each Member the ability to

discharge the deliberative duties of office and "to perform their legislative tasks." Gravel v. United States. 408 U.S. at 625,

616-17.

The constitutional importance of the investigative and informing functions of Members of Congress does not end at the legislative function, however. To the contrary, the ability, indeed duty, of each Member of Congress to act as an independent watchdog against "corruption, maladministration [and] inefficiency in the agencies of the Government," Warkiza v. United States, 354 U.S. at 200 & n.33 (1957), was a cornerstone of the elaborate system of checks and balances established by the Framers of the Constitution.

See, eg, The Federalist No. 51

(J. Madison) ("the constant aim is to divide and arrange the

several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights").

The ability of each Member to report to his

constituents and the public at large accurately regarding the inner workings of government agencies has been recognized as even more important than the legislative function. As Woodrow Wilson observed more than a century ago:

Unless Congress have and use every means of acquainting
itself with the acts and disposition of the

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