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529
ARTICLES
CONGRESSIONAL OVERSPEECH
Josh Chafetz*
Political theater. Spectacle. Circus. Reality show. We are constantly
told that, whatever good congressional oversight is, it certainly is not those
things. Observers and participants across the ideological and partisan
spectrums use those descriptions as pejorative attempts to delegitimize
oversight conducted by their political opponents or as cautions to their own
allies of what is to be avoided. Real oversight, on this consensus view, is
about fact-finding, not about performing for an audience. As a result, when
oversight is done right, it is both civil and consensus-building.
While plenty of oversight activity does indeed involve bipartisan attempts
to collect information and use that information to craft policy, this Article
seeks to excavate and theorize a different way of using oversight tools, a way
that focuses primarily on their use as a mechanism of public communication.
I refer to such uses as congressional overspeech.
After briefly describing the authority, tools and methods, and consensus
understanding of oversight in Part I, this Article turns to an analysis of
overspeech in Part II. The three central features of overspeech are its
communicativity, its performativity, and its divisiveness, and each of these
is analyzed in some detail. Finally, Part III offers two detailed case studies
of overspeech: the Senate Munitions Inquiry of the mid-1930s and the
McCarthy and Army-McCarthy Hearings of the early 1950s. These case
studies not only demonstrate the dynamics of overspeech in action but also
illustrate that overspeech is both continuous across and adaptive to different
media environments. Moreover, the case studies illustrate that overspeech
can be used in the service of normatively good, normatively bad, and
*
Professor of Law, Georgetown University Law Center. Work on this project was largely
undertaken while I was Professor of Law at Cornell Law School and Visiting Professor of
Law at both Georgetown and the University of Texas School of Law; I thank all three
institutions and their libraries for their research support. Thanks also to Julie Cohen, Dan
Ernst, Olati Johnson, Margot Kaminski, Ron Krotoszynski, Marty Lederman, Helen Norton,
Farah Peterson, David Pozen, Catherine Roach, Joseph Roach, Mike Seidman, Scott Skinner-
Thompson, and the participants in workshops at Georgetown University Law Center, the
University of Alabama School of Law, the University of Colorado Law School, and the
Legislation Works in Progress Roundtable at Yale Law School for helpful and thought-
provoking comments and suggestions. Any remaining errors or infelicities are, of course, my
own.
530 FORDHAM LAW REVIEW [Vol. 89
normatively ambivalent political projects. Overspeech is a potent
congressional tool—and, like all tools, it can be put to a variety of uses.
I
NTRODUCTION .................................................................................. 530
I.
A BRIEF OVERVIEW OF CONGRESSIONAL OVERSIGHT ................. 537
A. Authority for Congressional Oversight ............................ 540
B. Tools and Methods of Oversight ....................................... 545
C. Oversight Done “Right”: The Consensus View .............. 548
II.
OVERSPEECH ................................................................................ 551
A. Communicativity ............................................................... 551
B. Performativity ................................................................... 556
C. Divisiveness ...................................................................... 564
III.
CASE STUDIES ............................................................................ 569
A. The Senate Munitions Inquiry, 1934–1936 ....................... 569
B. McCarthy and the Army-McCarthy Hearings, 1950–
1954 ................................................................................ 581
C
ONCLUSION ..................................................................................... 596
I
NTRODUCTION
In the swirl of investigations leading up to the impeachment of President
Donald Trump, Democrats and Republicans didn’t find much common
ground. But one place they did seem to come together was in their
conceptions of what good congressional investigations look like. In seeking
to delegitimize the use of congressional oversight tools, the White House and
its allies repeatedly insisted that, rather than engaging in nonpartisan fact-
finding, the investigations were instead partisan performances aimed at a
public audience. Strikingly, administration opponents largely agreed with
the administration’s underlying premise that public-facing, performative, and
partisan uses of oversight tools are improper or degraded—the opponents
simply limited themselves to either denying that this was what they were in
fact doing or warning their allies against doing so.
Consider the controversy surrounding Special Counsel Robert Mueller’s
congressional testimony in July 2019. Mueller initially resisted testifying,
announcing at a press conference that, “[a]ny testimony from this office
would not go beyond our report . . . . We chose those words carefully, and
the work speaks for itself. And the report is my testimony.”
1
Democrats
1. Letting the Report ‘Speak for Itself,’ N.Y. TIMES, May 30, 2019, at A16; see also
Rachel Bade & Karoun Demirjian, Mueller’s Statement Increases Pressure on Pelosi to Begin
Trump Impeachment, W
ASH. POST (May 29, 2019), https://www.washingtonpost.com/
politics/muellers-statement-increases-pressure-on-pelosi-to-begin-trump-impeachment/
2019/05/29/60e8ec5c-8228-11e9-933d-7501070ee669_story.html [https://perma.cc/D3KS-
L5RF] (“Privately, Mueller has been expressing reluctance to testify in public. On
Wednesday, that sentiment was evident as he said that he would not answer questions beyond
what he wrote in his report.”).
2020] CONGRESSIONAL OVERSPEECH 531
found Mueller’s reticence less than compelling,
2
eventually issuing a
subpoena for his testimony.
3
Republicans were not pleased. President
Trump immediately tweeted that the subpoenas constituted “Presidential
Harassment!”
4
Attorney General William Barr insisted that, because
Mueller’s testimony was unlikely to bring new facts to light, the subpoenas
did not “serve[] an important purpose”—rather, their sole purpose was to
“create some kind of public spectacle.”
5
And Barr was not the only
Republican to reach for the metaphor of public entertainment: Michael
Conaway (R-TX), a member of the House Intelligence Committee, remarked
that, “I can’t imagine there’s much to glean from him beyond what’s in the
report . . . . I think it’s just theater.”
6
In his opening statement at the hearing
at which Mueller testified, Intelligence Committee ranking member Devin
Nunes (R-CA), too, referred to the proceedings derisively as “political
theater,”
7
as did several other Republican members.
8
Conservative media
2. See, e.g., Nicholas Fandos, House Democrats Push for More from a Reluctant
Witness, N.Y.
TIMES, May 30, 2019, at A17 (reporting Intelligence Committee Chair Adam
Schiff’s comment that “there are . . . a great many questions [Mueller] can answer that go
beyond the report”); Id. (quoting other Democrats to similar effect); Sharon LaFraniere,
Breaking Silence, Mueller Declines to Absolve Trump, N.Y.
TIMES, May 30, 2019, at A1
(reporting Majority Leader Steny Hoyer’s comment that “the American people deserve to hear
testimony from the special counsel about his report and the report’s conclusions”); Bade &
Demirjian, supra note 1 (reporting Chief Deputy Whip Dan Kildee’s comment that Mueller
“has an obligation to explain in as much detail as Congress wants the process of this
investigation and the conclusions that he drew”).
3. See Letter from Reps. Jerrold Nadler & Adam Schiff to Robert S. Mueller, III, Special
Counsel, U.S. Dep’t of Just. (June 25, 2019), https://judiciary.house.gov/sites/
democrats.judiciary.house.gov/files/documents/Letter%20to%20Special%20Counsel%20Mu
eller%20%286.25.19%29.pdf [https://perma.cc/2B7C-F93B] (“Attached please find
subpoenas from the House Judiciary Committee and the House Permanent Select Committee
on Intelligence to compel your testimony . . . . Over the course of discussions about your
appearance before Congress, we have consistently communicated our Committees’ intention
to issue these subpoenas, if necessary, and we now understand it is necessary to do so.”).
4. Donald J. Trump (@realDonaldTrump), T
WITTER (June 25, 2019, 10:34 PM),
https://twitter.com/realDonaldTrump/status/1143709133234954241 [https://perma.cc/
MM2U-QT7N].
5. David Shortell, Barr Says Mueller Subpoena Done to Create ‘Public Spectacle,’ CNN
(July 8, 2019, 7:07 PM), https://www.cnn.com/2019/07/08/politics/william-barr-robert-
mueller-testimony-spectacle/index.html [https://perma.cc/2E52-SGBM].
6. Chris Megerian & Jennifer Haberkorn, Eager to Hear Their Version of the Truth;
Democrats Want to See Trump Declared Guilty; the GOP Wants Him Cleared. Mueller May
Do Neither, L.A.
TIMES, July 24, 2019, at A1, ProQuest Doc. No. 2262592036.
7. WATCH: Nunes Calls Mueller Hearing ‘Political Theater,’ PBS
NEWS HOUR (July
24, 2019, 1:45 PM), https://www.pbs.org/newshour/politics/watch-nunes-calls-mueller-
hearing-political-theater [https://perma.cc/3P29-MQZH].
8. See Rachael Bade et al., Mueller to Testify to Congress in Open Session About His
Investigation, W
ASH. POST (June 25, 2019), https://www.washingtonpost.com/politics/
mueller-to-testify-to-congress-in-open-session-about-his-investigation/2019/06/25/dde8c95a
-975b-11e9-916d-9c61607d8190_story.html [https://perma.cc/BG35-4R5R] (reporting
Representative Mark Meadows (R-NC)’s comment, “I just think it’s more political theater”);
Sarah Gager, Representative Reed Calls Mueller Hearings “Political Theater,” WSKG (July
24, 2019), https://wskg.org/news/rep-reed-calls-mueller-testimony-political-theater/ [https://
perma.cc/Z7S8-6J2R] (reporting Representative Tom Reed (R-NY)’s statement to reporters);
see also Ronna McDaniel, Opinion, RNC Chairwoman Ronna McDaniel: Dems Stage
Political Theater with Mueller Instead of Serving American People, F
OX NEWS (July 24,
532 FORDHAM LAW REVIEW [Vol. 89
got in on the showbiz metaphors, as well. The day of Mueller’s testimony,
the Wall Street Journal editorialized that, “[t]here’s nothing like a celebrity
guest to boost a flagging TV show, and House Democrats are hoping Robert
Mueller’s congressional performance this week revives their impeachment
ratings. Yet if the former special counsel stays true to his own investigation
and report, this episode will be the last.”
9
A conservative columnist for the
New York Post described Mueller’s forthcoming testimony thus: “The circus
is coming to town and the carnival barkers are working up a sweat trying to
spark interest. So far, ticket sales are slow.”
10
In the aftermath of Mueller’s
testimony, the Wall Street Journal declared that “The Mueller Show is a
Bust.”
11
And Trump-skeptical conservative Kevin Williamson managed, in
the space of a single column (of fewer than 800 words) appraising the
aftermath of the hearings, to use “circus,” “reality-show,” “goat rodeo,”
“putting on a show,” “theater,” and “spectacle.”
12
But Republicans weren’t the only ones to use the language of public
performance in a derogatory manner with respect to Mueller’s testimony.
Before Mueller testified, former Democratic Representative Timothy
Roemer (D-IN) wrote to warn against the hearings becoming “a wild circus
show.”
13
Slate commentator Dahlia Lithwick thought it would inevitably be
degradedly performative: “It will be like a cover of k. d. lang’s cover of
Rufus Wainwright’s cover of Leonard Cohen’s Hallelujah, except actually it
will be Mueller doing a cover of himself, in the hopes that people will tune
in to the live made-for-TV version.”
14
A distinguished left-leaning scholar
of law and politics thought the hearings held more potential, tweeting that
House “Democrats questioning Mueller should avoid theatrics and
grandstanding and let staff walk Mueller through [his] report
conclusions . . . . Should be a moment for seriousness.”
15
And in the
2019), https://www.foxnews.com/opinion/rnc-chairwoman-ronna-mcdaniel-dems-stage-
political-theater-with-mueller-instead-of-serving-american-people [https://perma.cc/2L3A-
NJQT] (the RNC chairwoman using the same metaphor).
9. Editorial, Robert Mueller’s Summer Re-run, W
ALL ST. J., July 24, 2019, at A16.
10. Michael Goodwin, Opinion, Dems Take Desperate Final Shot at Trump with Mueller
Testimony, N.Y.
POST (July 20, 2019), https://nypost.com/2019/07/20/dems-take-desperate-
final-shot-at-trump-with-mueller-testimony/ [https://perma.cc/BCJ7-6RB9].
11. Editorial, The Mueller Show Is a Bust, W
ALL ST. J., July 25, 2019, at A14.
12. Kevin D. Williamson, The Mueller Hearings Revealed Why You Shouldn’t Bet Against
Trump, N
AT’L REV. (July 25, 2019, 10:30 AM), https://www.nationalreview.com/2019/07/
the-mueller-hearings-revealed-why-you-shouldnt-bet-against-trump/ [https://perma.cc/89UC
-DK4L].
13. Timothy Roemer, Opinion, Lawmakers Should Not Turn the Mueller Testimony into
a Circus, H
ILL (July 22, 2019, 4:00 PM), https://thehill.com/opinion/judiciary/454153-
lawmakers-should-not-turn-the-mueller-testimony-into-a-circus [https://perma.cc/2DN9-
EXHD].
14. Dahlia Lithwick, Robert Mueller’s Testimony Before House Democrats Is a Game of
Chicken Between Chickens, S
LATE (July 23, 2019, 8:07 PM), https://slate.com/news-and-
politics/2019/07/robert-mueller-testimony-house-democrat-chickens.html [https://perma.cc/
K2BD-264R].
15. Rick Hasen (@rickhasen), T
WITTER (July 6, 2019, 6:53 PM), https://twitter.com/
rickhasen/status/1147639630700769280 [https://perma.cc/YL7L-4UHA].
2020] CONGRESSIONAL OVERSPEECH 533
aftermath of the hearings, Lithwick’s Slate colleague Jeremy Stahl
characterized them as “banal political theater that revealed no new facts.”
16
Nor did the disparaging use of the language of performativity end with
Mueller’s testimony. When it later came to light that Trump had threatened
to withhold appropriated military aid from Ukraine unless its government
opened an investigation into alleged corruption involving the son of former
Vice President Joe Biden—a Democrat then vying for his party’s nomination
to run against Trump in 2020—House Democrats opened a new round of
investigations. These included closed and open hearings before the
Intelligence Committee,
17
hearings before the Judiciary Committee,
18
and
finally the adoption of articles of impeachment.
19
From the moment that the Ukraine revelations became public, Democrats
supporting impeachment insisted that their party not succumb to the
temptations of theatricality. Joe Lockhart, who had served as press secretary
to President Bill Clinton, argued that the questioning in impeachment
hearings should be primarily conducted by counsel, not by members, and that
“[t]he investigators’ guiding principle should be just the facts, not the
theater.”
20
In announcing her support for impeachment, Representative Tulsi
Gabbard (D-HI) (a long-shot contender for the Democratic presidential
nomination at the time) insisted that the process “cannot be turned into a long,
protracted partisan circus.”
21
Like Lockhart, liberal commentator Margaret
Carlson argued that Democrats should turn over questioning to counsel, who
could act as “grown-up finders of fact . . . . The best thing that could happen
is that the hearings are so tediously legal, only C-Span covers them.”
22
The Intelligence Committee began by holding closed hearings in a
Sensitive Compartmented Information Facility (SCIF) to allow for the taking
of classified testimony. At one point in the hearings, Republican House
members who were not on the Intelligence Committee gathered outside the
16. Jeremy Stahl, Top CBP Officer Testifies He’s Unsure If 3-Year-Old Is “a Criminal or
a National Security Threat,” S
LATE (July 26, 2019, 2:30 PM), https://slate.com/news-and-
politics/2019/07/cbp-chief-brian-hastings-family-separation-judiciary-hearing-not-
mueller.html [https://perma.cc/W8RR-374L].
17. See Nicholas Fandos, An Inquiry Is out of Public View, but That’s Not out of the
Ordinary, N.Y.
TIMES, Oct. 25, 2019, at A18 (closed hearings); Nicholas Fandos & Michael
D. Shear, Envoys Reveal Scope of Trump Ukraine Push, N.Y.
TIMES, Nov. 14, 2019, at A1
(open hearings).
18. See Adam Liptak, A Divide Over Whether the Evidence Is There, N.Y.
TIMES, Dec. 5,
2019, at A20.
19. H.R. Res. 755, 116th Cong. (2019) (as agreed to in House of Representatives, Dec.
18, 2019).
20. Joe Lockhart, Opinion, Why I Was Wrong to Oppose Impeachment, N.Y.
TIMES (Sept.
26, 2019), https://www.nytimes.com/2019/09/26/opinion/impeachment-whistleblower-
complaint.html [https://perma.cc/93ZS-WL8M].
21. Maggie Astor, Tulsi Gabbard, Last 2020 Holdout, Supports Impeachment Inquiry,
N.Y.
TIMES (Sept. 27, 2019), https://www.nytimes.com/2019/09/27/us/politics/tulsi-gabbard-
impeachment.html [https://perma.cc/SZR3-SW3Q].
22. Margaret Carlson, Do You Want to Preen on Camera, Democrats, or Do You Want to
Take Down Trump?, D
AILY BEAST (Oct. 4, 2019, 5:00 AM), https://www.thedailybeast.com/
do-you-want-to-preen-on-camera-democrats-or-do-you-want-to-take-down-trump [https://
perma.cc/AA75-MKXF].
534 FORDHAM LAW REVIEW [Vol. 89
SCIF loudly demanding access, and some of them barged into the room.
Ultimately, the House sergeant at arms was called to restore order.
23
Democrats and liberal commentators referred to the “storming of the
SCIF”—which garnered significant media attention—as a “stunt,” “circus-
like,”
24
and “guerrilla street theater.”
25
After the closed-door hearings wrapped up, the Intelligence Committee
moved into two weeks of public hearings. Republican Representative Louie
Gohmert (R-TX) predicted that the hearings would be “a sham circus.”
26
Trump’s former attorney general Jeff Sessions called the hearings a Soviet-
style “show trial” and “political theater.”
27
On the other side of the aisle,
Democratic Representative David Cicilline (D-RI) urged his colleagues to
eschew such descriptions: “This is not a circus, it is a solemn moment.”
28
Commentators on both sides threw around accusations of theatricality as
well. Liberal Caroline Frederickson accused Republicans of trying to turn
the hearings into “just another version of reality TV,”
29
while conservative
Kyle Smith referred to the hearings as “MasterTroll Theater. The Democrats
know they’re engaged in a futile exercise that exists only to draw attention.”
30
After the Intelligence Committee hearings ended, impeachment moved to
the Judiciary Committee, which the New York Times’s television critic
referred to as a move “from foreign-intrigue thriller to constitutional
documentary,” with four law professors testifying on the constitutional
standards and processes of impeachment.
31
Ultimately, the Judiciary
Committee reported out two articles of impeachment: one asserting that
Trump abused his power in pressuring Ukraine to investigate Biden and the
other asserting that he had obstructed the congressional investigation into his
23. Sheryl Gay Stolberg & Nicholas Fandos, Turmoil as G.O.P. Disrupts Inquiry on
Impeachment, N.Y. TIMES, Oct. 24, 2019, at A1.
24. Robert P. Baird, The Circus Comes to the House Impeachment Inquiry, N
EW YORKER
(Oct. 29, 2019), https://www.newyorker.com/news/dispatch/the-circus-comes-to-the-house-
impeachment-inquiry [https://perma.cc/MT2E-NAF9].
25. Ed Kilgore, Republicans Storm Closed Meeting, Demanding Transparency for Their
Stonewalling POTUS, N.Y.
MAG. (Oct. 23, 2019), http://nymag.com/intelligencer/2019/
10/republicans-bust-into-closed-meeting-to-protest-impeachment.html [https://perma.cc/
F4SX-ADTQ].
26. Mark Leibovich, A Return of Old Washington in Defiance of a Raucous Era, N.Y.
TIMES, Nov. 14, 2019, at A1.
27. Jeff Sessions, Opinion, Ex-AG Jeff Sessions: Trump Impeachment Hearings Are
Desperate Democratic Attack on Him—No Reason to Impeach, F
OX NEWS (Nov. 13, 2019),
https://www.foxnews.com/opinion/jeff-sessions-on-impeachment [https://perma.cc/N5XL-
3XS2].
28. Leibovich, supra note 26.
29. Caroline Frederickson, Opinion, Republicans Want to Turn the Impeachment
Hearings into ‘Judge Judy,’ N.Y.
TIMES (Nov. 14, 2019), https://www.nytimes.com/2019/11/
14/opinion/trump-impeachment-hearing.html [https://perma.cc/CE82-E2RN].
30. Kyle Smith, Impeachment Theater of Trolls, N
AT’L REV. (Nov. 14, 2019, 5:23 PM),
https://www.nationalreview.com/2019/11/impeachment-hearings-day-one-voters-
uninterested/ [https://perma.cc/WYA2-XJMX].
31. James Poniewozik, Shifting from Drama to a Documentary, N.Y.
TIMES, Dec. 5, 2019,
at A23.
2020] CONGRESSIONAL OVERSPEECH 535
wrongdoing.
32
Trump’s 2020 campaign manager responded that “Democrats
are putting on this political theater because they don’t have a viable candidate
for 2020 and they know it.”
33
On a near-party-line vote, the House
impeached President Trump on December 18, 2019.
34
When it came time for the Senate trial, many Republicans were dismissive
of the House’s process. Senator Shelley Moore Capito (R-WV) described it
as “nothing but political theater”;
35
Senator Rand Paul (R-KY) described it
as a “charade”;
36
and Senator Lamar Alexander (R-TN) referred to it as a
“circus.”
37
Conservative commentators referred to the process as “a political
puppet show”
38
and “‘Resistance’ theatrics.”
39
After it became clear that the
Senate would not hear new testimony, it became Democrats’ turn to reach
for the pejorative language of performativity. Commentators called the
Senate trial a “show trial”
40
and a “sham.”
41
On February 5, 2020, Trump
was acquitted on near-party-line votes.
42
These descriptions throughout the impeachment saga from participants
and observers both left and right reveal some widely (albeit certainly not
universally) shared assumptions about what it means to do congressional
oversight properly. Most prominently, they convey an almost overwhelming
sense of anti-theatricality:
43
whatever good oversight is, it isn’t a
“spectacle,” a “circus,” or “political theater.” Lying behind that palpable
32. H.R. Res. 755, 116th Cong. (2019) (as agreed to in House of Representatives, Dec.
18, 2019).
33. Rebecca Klar, Trump Campaign: Democrats Pursuing Impeachment Because They
Don’t Have ‘Viable’ 2020 Candidate, H
ILL (Dec. 10, 2019, 10:08 AM), https://thehill.com/
homenews/campaign/473829-trump-campaign-democrats-impeaching-trump-because-they-
dont-have-viable [https://perma.cc/2ADR-B5XD].
34. Nicholas Fandos & Michael D. Shear, Trump Impeached, N.Y.
TIMES, Dec. 19, 2019,
at A1.
35. Lauren Leatherby et al., What Senators Have Said About Impeachment, N.Y.
TIMES
(Dec. 20, 2019), https://www.nytimes.com/interactive/2019/12/20/us/politics/senators-
impeachment-reactions.html [https://perma.cc/V9U2-G6RF].
36. Id.
37. Matthew Daly, Dispute Over Rules Erupts on Impeachment’s First Full Day,
A
SSOCIATED PRESS (Jan. 22, 2020), https://apnews.com/32e6ac935103430dd8ccb7ba6
a088334 [https://perma.cc/U2BK-LYZZ].
38. John Kass, Dems Desperate to Protect Their Source of Power, C
HI. TRIB., Jan. 22,
2020, at 2, ProQuest Doc. No. 2342988978.
39. Guy Benson, Analysis: With Insults and Hyperbole, Schiff and Nadler Choose
Resistance Theater over Persuasion, T
OWNHALL (Jan. 27, 2020, 10:05 AM), https://
townhall.com/tipsheet/guybenson/2020/01/27/analysis-by-insulting-jurors-schiff-and-nadler-
prioritize-resistance-theater-over-persuasion-n2560139 [https://perma.cc/XQ9P-Y5PC].
40. Maureen Dowd, Opinion, Trump, Unrepentant and Unleashed, N.Y.
TIMES, Feb. 2,
2020, at SR9; Jeremy Stahl, Begging the Questions, S
LATE (Jan. 29, 2020, 9:40 PM),
https://slate.com/news-and-politics/2020/01/no-impeachment-witnesses-mitch-mcconnell-
senate-dershowitz-bolton.html [https://perma.cc/G444-MKKN].
41. Michael D. Shear & Nicholas Fandos, Senate Republicans Block Witnesses, 51 to 49,
Clearing a Path for the President’s Acquittal, N.Y.
TIMES, Feb. 1, 2020, at A1.
42. Nicholas Fandos, Split Senate Clears Trump on Each Count in Finale of Bitter
Impeachment Battle, N.Y.
TIMES, Feb. 6, 2020, at A1.
43. The classic text on the anti-theatrical bias remains J
ONAS BARISH, THE
ANTITHEATRICAL PREJUDICE (1981). For a more recent revisionist account, see LISA A.
FREEMAN, ANTITHEATRICALITY AND THE BODY PUBLIC (2017).
536 FORDHAM LAW REVIEW [Vol. 89
sense of what good oversight isn’t is a cluster of ideas about what it is: good
oversight is understood to be more about listening than talking, more about
fact-finding than perspective-proclaiming. It is also understood to be
bipartisan and, above all, civil. And indeed, much important and useful
oversight does involve bipartisan attempts to collect information and use that
information to craft policy.
44
But that is not the only way of using the tools of congressional oversight
effectively. This Article proposes that some congressional oversight activity
is better characterized as congressional overspeech. The defining
characteristic of overspeech is the use of oversight mechanisms to
communicate with the broader public. As such, it emphasizes the
performative and divisive aspects of oversight. Attention to congressional
overspeech, and the ways in which it serves political goals distinct from those
put forward by the consensus view of oversight, gives us a significantly fuller
picture of Congress’s role in our constitutional system. Like all tools,
overspeech does not specify its own goals, and it can accordingly be used in
the service of either good or bad ends. But if one hopes to understand how
political actors pursue their goals in the American federal system, it is a
mistake to view overspeech as simply a degraded form of oversight—as
“mere” political theater. In particular, if one hopes to understand the full
range of powers that congressional chambers and members can and do make
use of to push back against an imperial executive, it is a mistake to overlook
overspeech.
Part I of this Article provides an overview of congressional oversight,
introducing both the sources of authority for oversight and the tools used in
conducting it. This part also discusses in more detail the consensus view of
oversight—that is, the understanding we saw at work in the debates over
Mueller’s testimony and the impeachment proceedings. Part II then turns to
an analysis of overspeech, or the use of those same tools, pursuant to those
same sources of authority, but for ends other than those recognized by the
consensus view. This part identifies three main characteristics of
overspeech: its communicativity, its performativity, and its divisiveness.
These are presented in increasing order of controversiality—almost no one
wholly denies a communicative role for oversight, although the consensus
view requires that it take a back seat to fact-finding. But making a case for
performativity, and especially divisiveness, as anything other than indicia of
oversight failure or degradation is significantly more controversial. Finally,
Part III offers two detailed case studies of overspeech from different periods
in American history—and therefore different media environments—in order
to examine overspeech in action. These case studies also partake of an array
of normative valences. The point is to demonstrate that congressional
overspeech is an important mechanism of constitutional politics, not that its
use inevitably produces good outcomes.
44. See infra text accompanying notes 159–62.
2020] CONGRESSIONAL OVERSPEECH 537
I.
A BRIEF OVERVIEW OF CONGRESSIONAL OVERSIGHT
Although tracing the history of legislative oversight is well beyond the
scope of this Article, it has been a feature of our federal government since at
least the 1792 House investigation into the defeat of an army force under the
command of General Arthur St. Clair by a confederacy of Native American
tribes at the Battle of the Wabash.
45
Indeed, that investigation was authorized
after the House of Representatives rejected an earlier proposal to “request[]”
that President George Washington initiate an investigation into the defeat.
46
The resulting House investigation, conducted by a special committee,
involved the testimony of St. Clair himself and Secretary of War Henry
Knox, as well as an examination of St. Clair’s personal papers and papers
from the War Department and the Treasury Department (personally delivered
by Treasury Secretary Alexander Hamilton).
47
The committee exonerated
St. Clair and placed much of the blame for the defeat on Knox. The House
then ordered the committee to reopen the investigation in order to hear further
from Knox and others. The committee’s second report was perhaps even
more damning of Knox, but it did not recommend any specific action, and
ultimately no action was taken by the entire House in direct consequence of
the report.
48
However, while the committee was deliberating, Congress
passed a law taking authority for procuring army supplies away from the
secretary of war and locating it in the Treasury Department,
49
an act
characterized by historian George Chalou as “a slap at Knox.”
50
The
investigation as a whole also “embarrassed and politically damaged the
Federalists” and emboldened the Jeffersonian faction in nascent partisan
competition.
51
In conducting the St. Clair hearings, the House was calling on a long
history of legislative oversight in the Anglo-American tradition. By the mid-
sixteenth century, the House of Commons was impaneling committees and
taking evidence for the purpose of determining contested elections (a
function it had wrested from the Crown).
52
In the seventeenth century, this
investigatory power was central to many of the House’s clashes with the
45. For detailed accounts of the St. Clair investigation and the events giving rise to it, see
E
RNEST J. EBERLING, CONGRESSIONAL INVESTIGATIONS: A STUDY OF THE ORIGIN AND
DEVELOPMENT OF THE POWER OF CONGRESS TO INVESTIGATE AND PUNISH FOR CONTEMPT 36–
37 (1928); D
OUGLAS L. KRINER & ERIC SCHICKLER, INVESTIGATING THE PRESIDENT:
CONGRESSIONAL CHECKS ON PRESIDENTIAL POWER 9–12 (2016); George C. Chalou, St. Clair’s
Defeat, 1792, in 1 C
ONGRESS INVESTIGATES: A DOCUMENTED HISTORY, 1792–1974, at 3
(Arthur M. Schlesinger Jr. & Roger Bruns eds., 1975).
46. H.R.
JOURNAL, 2d. Cong., 1st Sess. 551 (1792).
47. Chalou, supra note 45, at 10–11.
48. Id. at 12–17.
49. An Act Making Alterations in the Treasury and War Departments, ch. 37, § 2, 1 Stat.
279, 280 (1792).
50. Chalou, supra note 45, at 13.
51. K
RINER & SCHICKLER, supra note 45, at 12.
52. Josh Chafetz, “In the Time of a Woman, Which Sex Was Not Capable of Mature
Deliberation”: Late Tudor Parliamentary Relations and Their Early Stuart Discontents, 25
Y
ALE J.L. & HUMAN. 181, 188–91, 195–97 (2013).
538 FORDHAM LAW REVIEW [Vol. 89
Stuart monarchs.
53
Indeed, by the late 1660s, some parliamentary grants of
funds to the Crown came with provisions specifying record-keeping
procedures, requiring that the records be open for public inspection, and even
creating what we might anachronistically call an independent auditing board,
with the authority to take testimony under oath and a requirement to report
to both the King and Parliament.
54
By the middle of the eighteenth century, it was commonplace—naturally,
primarily among opposition politicians—to refer to the House of Commons
as the “grand inquest of the nation.” Bolingbroke used the phrase in 1730,
55
and the following year the formulation was used in a speech in the House of
Lords in support of a bill that would make pensioners of the Crown ineligible
to sit in the House of Commons.
56
In 1734, this conception of the lower
house’s role was urged in debates in the Commons as a point in favor of more
frequent parliamentary elections,
57
and upon the opening of Parliament in
1735, Speaker Arthur Onslow told his colleagues that,
[t]his House is the grand inquest of the nation, appointed to inquire
diligently, and to represent faithfully to the king, all the grievances of his
people, and all the crimes and mismanagement of his servants; and
therefore it must always be a breach of our fidelity to our sovereign, as well
as a breach of our duty to his people, to approve blindly of the conduct of
his servants [i.e., the government].
58
Perhaps most famously, the formulation was repeatedly invoked in the
1741 debates over appointing a committee to inquire into the conduct of
Robert Walpole, Earl of Orford, as prime minister.
59
After James Hamilton,
Viscount Limerick, moved for the appointment of a committee to investigate
the previous twenty years of Walpole’s tenure,
60
William Pitt the Elder
responded to claims that the inquiry was, to borrow a phrase, a witch hunt:
I have no great Occasion to answer what has been said, that no
Parliamentary Inquiry ought ever to be set up, unless we are convinced that
something has been done amiss. Sir, the very Name given to this House of
Parliament shews the contrary. We are called the Grand Inquest of the
53. JOSH CHAFETZ, CONGRESS’S CONSTITUTION: LEGISLATIVE AUTHORITY AND THE
SEPARATION OF POWERS 157–63, 268 (2017); Chafetz, supra note 52, at 197–99.
54. C
HAFETZ, supra note 53, at 48–49. For the auditing board specifically, see Accounts
of Public Moneys Act 1667, 19 & 20 Car. 2 c. 1 (Eng.).
55. H
ENRY ST. JOHN, VISCOUNT BOLINGBROKE, REMARKS ON THE HISTORY OF ENGLAND
(1730), in 1 THE WORKS OF LORD BOLINGBROKE 292, 332 (Philadelphia, Carey & Hart 1841).
56. 8 W
ILLIAM COBBETT, COBBETT’S PARLIAMENTARY HISTORY OF ENGLAND 848
(London, Hansard 1811). On the history of these statutory incompatibility provisions, see
Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of
Representatives, 58 D
UKE L.J. 177, 188–90 (2008).
57. 9 C
OBBETT, supra note 56, at 421.
58. Id. at 673–74.
59. Admittedly, applying the title of “prime minister” to Walpole is somewhat
anachronistic. On the informality of the office of the prime minister until the twentieth century
and therefore the contingency of identifying the “first” prime minister, see C
HAFETZ, supra
note 53, at 91–92.
60. As Hamilton’s peerage was Irish, it was at the time no bar to his sitting in the British
House of Commons.
2020] CONGRESSIONAL OVERSPEECH 539
Nation, and as such it is our Duty to inquire into every Step of publick
Management, either Abroad or at Home, in order to see that nothing has
been done amiss.
61
Those who suggested otherwise “seem[ed] to mistake . . . the Difference
between a Motion for an Impeachment, and a Motion for an Inquiry.”
62
Limerick’s motion failed by two votes,
63
but he immediately introduced a
second motion calling for an investigation that would only go back a
decade.
64
In support of this motion, Edward Digby noted reports that the
Crown was “greatly in Debt” and unable to pay its bills: “[T]his Report alone
obliges us to inquire into it, if we have a Mind to act up to our Character as
the Grand Inquest of the Nation.”
65
Pitt spoke again, arguing that widespread
public outrage was sufficient, albeit not necessary, to justify opening a
parliamentary inquiry.
66
Moreover, the state of public affairs could justify
an inquiry even without any accusation of malfeasance: “[T]he ill Posture of
our Affairs both abroad and at home: The melancholy Situation we are in:
The Distress we are now reduced to, is of itself a sufficient Cause for an
Inquiry, even supposing [Walpole] were accused of no particular Crime or
Misconduct.”
67
Pitt and his colleagues were successful on their second try:
the House narrowly authorized the inquiry.
68
While the investigation itself
produced no further consequences for Walpole, the same pressure that
prompted the inquiry also led him to resign from the King’s service.
69
Later in the eighteenth century, William Blackstone would explicitly tie
the “grand inquest” formulation to the House of Commons’ role in
impeachment,
70
and no doubt it has important substantive ties to
impeachment. But the remarks surrounding the Walpole investigation make
it clear that the formulation was understood in mid-eighteenth-century
London to refer to a much more expansive power of investigation in the
public interest.
71
What’s more, colonial American legislatures were
especially attentive students of seventeenth- and eighteenth-century Crown-
Parliament relations,
72
and they seized on investigation as a form of pushback
61. 13 THE HISTORY AND PROCEEDINGS OF THE HOUSE OF COMMONS 172 (London, Richard
Chandler 1743).
62. Id. at 170.
63. Id. at 182.
64. Id. at 188–91.
65. Id. at 201.
66. Id. at 210–11.
67. Id. at 211.
68. Id. at 216.
69. Stephen Taylor, Walpole, Robert, First Earl of Orford (1676–1745), O
XFORD
DICTIONARY OF NAT’L BIOGRAPHY (Jan. 3, 2008), https://doi.org/10.1093/ref:odnb/28601
[https://perma.cc/44QM-JPZ9].
70. 4
WILLIAM BLACKSTONE, COMMENTARIES *259.
71. For a broader caution against taking Blackstone as fully representative of the common-
law tradition—and against taking Blackstone to be the sole source of American knowledge
about that tradition—see generally Bernadette Meyler, Towards a Common Law Originalism,
59 S
TAN. L. REV. 551 (2006).
72. C
HAFETZ, supra note 53, at 4–5.
540 FORDHAM LAW REVIEW [Vol. 89
against royal officials.
73
As a result of American frustrations with colonial
governors, early American state constitutions were dominated by the
legislatures.
74
But even though these state executives were relatively
toothless and generally appointed by state legislatures,
75
those legislatures
nevertheless maintained a number of independent checks on the executive,
including the power of investigation.
76
Two early republican state
constitutions—the Massachusetts Constitution of 1780 and the New
Hampshire Constitution of 1784, which was patterned on its Massachusetts
predecessor—both referred to the lower chamber of the legislature as “the
grand inquest” of the state, specifically in the context of impeachment.
77
A. Authority for Congressional Oversight
Early discussions of the new American Constitution picked up on the
“grand inquest” language. At the Philadelphia Convention, a draft from the
Committee of Detail specified that “[t]he House of Representatives shall be
the grand Inquest of this Nation; and all Impeachments shall be made by
them.”
78
This link was echoed by Hamilton, writing as Publius, who
extended the description to both chambers. Rather than labeling the House
itself as the grand inquest, he described impeachment as “a method of
N
ATIONAL INQUEST into the conduct of public men” and inquired, “If this be
the design of it, who can so properly be the inquisitors for the nation as the
representatives of the nation themselves?”
79
And other early American
politicians evinced an understanding, similar to that expressed by Pitt earlier
in the century, that the idea of a legislative house as a “grand inquest” extends
well beyond impeachment. George Mason argued at the Philadelphia
Convention that Congress should be required to meet once a year because
“the Legislature, besides legislative, is to have inquisitorial powers, which
73. See MARY PATTERSON CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN
COLONIES 208 (1943) (noting that colonial assemblies “tended to hold many local officials to
a large measure of responsibility, and to call them to account when they failed in the
performance of their duty”); E
BERLING, supra note 45, at 17–21; TELFORD TAYLOR, GRAND
INQUEST: THE STORY OF CONGRESSIONAL INVESTIGATIONS 10–11 (1955).
74. See G
ORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776–1787, at
149 (rev. ed. 1998) (“Americans’ emasculation of their governors lay at the heart of their
constitutional reforms of 1776.”).
75. W
ILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY
AND THE
MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 266–67, 270
(Rita & Robert Kimber trans., expanded ed. 2001).
76. See C
HAFETZ, supra note 53, at 170–71; TAYLOR, supra note 73, at 12.
77. M
ASS. CONST. of 1780, pt. II, ch. I, § 3, art. 6; N.H. CONST. of 1784, pt. II, art. 17.
78. 2 T
HE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 154 (Max Farrand ed., rev.
ed. 1966) [hereinafter F
ARRAND’S RECORDS]. This connection was remarked upon in at least
one state ratifying convention as well. See 4 T
HE DEBATES IN THE SEVERAL STATE
CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 44 (Jonathan Elliot ed., 1907)
[hereinafter E
LLIOT’S DEBATES] (Archibald Maclaine in the North Carolina ratifying
convention: “[The impeachment] clause empowers the House of Representatives, which is
the grand inquest of the Union at large, to bring great offenders to justice.”).
79. T
HE FEDERALIST NO. 65, at 395 (Alexander Hamilton) (Clinton Rossiter ed., 1961). It
should be noted that Hamilton was discussing the powers of the Senate in this essay, so there
is no doubt that he means to refer to both chambers.
2020] CONGRESSIONAL OVERSPEECH 541
can not safely be long kept in a State of suspension.”
80
In his famous 1790–
1791 “Lectures on Law,” James Wilson likewise used the term in a more
capacious sense: “The house of representatives, for instance, form the grand
inquest of the state. They will diligently inquire into grievances, arising both
from men and things.”
81
And in the House itself in 1794, Massachusetts
Federalist Fisher Ames, who had been a delegate to the Massachusetts
ratifying convention, defended the House’s authority to inquire into and
criticize the proliferation of Democratic-Republican clubs,
82
referring to “the
character of this House as the grand inquest of the Nation, as those who are
not only to impeach those who perpetrate offence, but to watch and give the
alarm for the prevention of such attempts.”
83
The “grand inquest” formulation served a powerful justificatory role
because there is no explicit constitutional authorization for congressional
oversight. As we have seen, the formulation was tied to the impeachment
power
84
but not limited to it. Other constitutional powers have also long been
understood to give rise to attendant investigatory powers, including the
power to legislate,
85
the power to appropriate,
86
the power to structure the
other two branches of government,
87
and the Senate’s power to confirm
principal officers
88
and ratify treaties.
89
Most expansively of all, each
chamber has the authority to propose constitutional amendments;
90
even
information-gathering activities aimed at currently unconstitutional purposes
could therefore be constitutionally justified as an ancillary of this
congressional power. The reasonable exercise of any of these powers
requires the ability to acquire information—as James Landis put it in 1926,
“To deny Congress power to acquaint itself with facts is equivalent to
requiring it to prescribe remedies in darkness.”
91
The Supreme Court has
reasoned structurally to a similar conclusion: in McGrain v. Daugherty,
92
a
80. 2 FARRAND’S RECORDS, supra note 78, at 199 (Madison’s recounting); accord id. at
206 (King’s recounting).
81. J
AMES WILSON, Lectures on Law, Part II, Chapter 1: Of the Constitutions of the
United States and of Pennsylvania—of the Legislative Department, in 2 COLLECTED WORKS
OF
JAMES WILSON 829, 848 (Kermit L. Hall & Mark David Hall eds., 2007).
82. On the growth of Democratic-Republican clubs and the fear they inspired in the
Federalists, see Matthew Schoenbachler, Republicanism in the Age of Democratic Revolution:
The Democratic-Republican Societies of the 1790s, 18 J.
EARLY REPUBLIC 237, 237–38
(1998).
83. 4 A
NNALS OF CONG. 930 (1794).
84. U.S.
CONST. art. I, § 2, cl. 5; id. § 3, cl. 6–7; id. art. II, § 4.
85. Id. art. I, §§ 7–8.
86. Id. § 9, cl. 7.
87. Id. § 8, cl. 18; id. art. II, § 2; id. art. III, § 1.
88. Id. art. II, § 2, cl. 2.
89. Id.
90. Id. art. V.
91. James M. Landis, Constitutional Limitations on the Congressional Power of
Investigation, 40 H
ARV. L. REV. 153, 209 (1926); see also J. W. Fulbright, Congressional
Investigations: Significance for the Legislative Process, 18 U.
CHI. L. REV. 440, 441 (1951)
(“The power to investigate is one of the most important attributes of the Congress. It is perhaps
also the most necessary of all the powers underlying the legislative function.”).
92. 273 U.S. 135 (1927).
542 FORDHAM LAW REVIEW [Vol. 89
1927 case arising out of the Teapot Dome scandal, Justice Willis Van
Devanter, for a unanimous Court (with Justice Harlan Stone recused), held
that, “[w]e are of opinion that the power of inquiry—with process to enforce
it—is an essential and appropriate auxiliary to the legislative function.”
93
Van Devanter’s reasoning sounded in the same structural logic that Landis
had appealed to only a year earlier:
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 . . . . Thus there is ample
warrant for thinking, as we do, that the constitutional provisions which
commit the legislative function to the two houses are intended to include
this attribute to the end that the function may be effectively exercised.
94
This holding has been reaffirmed in subsequent cases.
95
Crucially, this
power to investigate as an ancillary of Congress’s other powers must be
understood capaciously. Before a chamber can have a specific piece of
legislation—or the appropriation of specific funds or the impeachment of a
specific officer—in mind, it must already have basic familiarity with the
existing state of the world.
96
What’s more, oversight can often deter
undesirable conduct, thereby obviating the need for some further remedy.
97
93. Id. at 174.
94. Id. at 175.
95. See, e.g., Watkins v. United States, 354 U.S. 178, 187 (1957) (“The power of the
Congress to conduct investigations is inherent in the legislative process. That power is broad.
It encompasses inquiries concerning the administration of existing laws as well as proposed
or possibly needed statutes. It includes surveys of defects in our social, economic or political
system for the purpose of enabling the Congress to remedy them. It comprehends probes into
departments of the Federal Government to expose corruption, inefficiency or waste.”);
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975) (“This Court has often noted
that the power to investigate is inherent in the power to make laws . . . . Issuance of subpoenas
such as the one in question here has long been held to be a legitimate use by Congress of its
power to investigate.”); Trump v. Mazars, 140 S. Ct. 2019, 2031 (2020) (quoting McGrain
and Watkins to similar effect).
96. See Watkins, 354 U.S. at 187.
97. See William P. Marshall, The Limits on Congress’s Authority to Investigate the
President, 2004 U.
ILL. L. REV. 781, 799 (“Congress’s power to investigate plays a critical
role in the checks and balances of U.S. democracy. Congressional investigations serve as a
deterrent to wrongdoing. Without some outside check on the Executive Branch, there would
be little to discourage unscrupulous officials from acting in their own, and not in the nation’s,
best interests.”); Marty Lederman, Can Congress Investigate Whether the President Has
Conflicts of Interest, Is Compromised by Russia, or Has Violated the Law?, B
ALKINIZATION
(July 29, 2019), https://balkin.blogspot.com/2019/07/can-congress-investigate-whether.html
[https://perma.cc/2U4Z-Y6PZ] (“[C]ongressional inquiry and oversight is an absolutely
critical deterrent to executive wrongdoing and maladministration . . . . As virtually anyone
who’s worked in the executive branch will attest, the prospect (or threat) of having to explain
one’s self, and one’s decisions, to a congressional chair or staff, or in congressional hearings
under the harsh glare of network lights, has a significant impact on how one performs her work
2020] CONGRESSIONAL OVERSPEECH 543
So long as such a remedy would be within Congress’s power, so too is the
investigation.
98
In addition to oversight’s basis in constitutional structure, there are a
number of statutory provisions that offer explicit or implicit authority for
congressional oversight. Most prominent is the Legislative Reorganization
Act of 1946,
99
which created an oversight obligation on the part of the
standing committees in both chambers:
To assist the Congress in appraising the administration of the laws and in
developing such amendments or related legislation as it may deem
necessary, each standing committee of the Senate and the House of
Representatives shall exercise continuous watchfulness of the execution by
the administrative agencies concerned of any laws, the subject matter of
which is within the jurisdiction of such committee . . . .
100
The Legislative Reorganization Act of 1970
101
modified that language to
require each standing committee to “review and study, on a continuing basis,
the application, administration, and execution of those laws, or parts of laws,
the subject matter of which is within the jurisdiction of that committee.”
102
In addition to statutizing not just a right but a duty to engage in oversight,
the 1946 and 1970 acts also created a number of mechanisms and processes
for facilitating and structuring that oversight. These included the
regularization and professionalization of both committee and member
staffing;
103
the direction of increased staff and resources to nonpartisan
institutions, including the Legislative Reference Service (renamed the
Congressional Research Service in the 1970 Act), the Offices of Legislative
Counsel, and the General Accounting Office (later renamed the Government
Accountability Office);
104
and requirements that committees issue biennial
oversight reports
105
and ensure that, to the greatest extent possible, programs
as an official—it tempers any impulses to overstep, cut corners, or disregard norms designed
to protect the public interest.”).
98. In 2020, the Supreme Court added a series of side constraints on the enforceability of
congressional subpoenas for the president’s personal information. Mazars, 140 S. Ct. at 2035–
36. Although this decision was lamentable, see Josh Chafetz, Don’t Be Fooled, Trump Is a
Winner in the Supreme Court Tax Case, N.Y.
TIMES (July 9, 2020),
https://www.nytimes.com/2020/07/09/opinion/trump-taxes-supreme-court-.html
[https://perma.cc/9QHB-FLAA], it did not affect oversight of the president’s official conduct,
nor did it extend to persons beyond the president.
99. Pub. L. No. 79-601, 60 Stat. 812. For discussions of the 1946 Act more generally, see
C
HAFETZ, supra note 53, at 292–95; ERIC SCHICKLER, DISJOINTED PLURALISM: INSTITUTIONAL
INNOVATION AND THE DEVELOPMENT OF THE U.S. CONGRESS 140–50 (2001); Roger H.
Davidson, The Legislative Reorganization Act of 1946, 15 L
EGIS. STUD. Q. 357 (1990).
100. Legislative Reorganization Act of 1946, § 136, 60 Stat. at 832.
101. Pub. L. No. 91-510, 84 Stat. 1140. For discussions of the 1970 Act more generally,
see C
HAFETZ, supra note 53, at 294–95; SCHICKLER, supra note 99, at 213–17; Walter Kravitz,
The Legislative Reorganization Act of 1970, 15 L
EGIS. STUD. Q. 375 (1990).
102. Legislative Reorganization Act of 1970, § 118, 84 Stat. at 1156.
103. See C
HAFETZ, supra note 53, at 292–94; Davidson, supra note 99, at 367–69; Kravitz,
supra note 101, at 379, 383, 388.
104. See C
HAFETZ, supra note 53, at 293–94.
105. Legislative Reorganization Act of 1970, § 118, 84 Stat. at 1156.
544 FORDHAM LAW REVIEW [Vol. 89
within their jurisdictions were subject to annual appropriations.
106
Moreover, myriad other statutes contain provisions meant to encourage or
facilitate oversight, ranging from protections for whistleblowers,
107
to the
creation of the Congressional Budget Office,
108
to requiring departments and
agencies to have inspectors general and chief financial officers.
109
In addition to constitutional and statutory authorizations for oversight,
each chamber also authorizes oversight in its cameral rules, promulgated
pursuant to the Rules of Proceedings Clause.
110
In the House, the rules
provide each standing committee with “general oversight responsibilities”
for laws and programs within its jurisdiction.
111
These responsibilities
include a requirement that each committee “review and study on a continuing
basis” laws, programs, agencies, and subject matters within its
jurisdiction.
112
The various standing committees are also required to submit
oversight plans for a Congress by March 1 of the first session of that
Congress,
113
and they are required to include a summary of their oversight
activities in their required report at the end of each Congress.
114
The rules
also provide for the payment of costs associated with conducting oversight
investigations and producing bound copies of testimony and other evidence
taken at oversight hearings.
115
A number of committees are also given
“special oversight functions”—that is, jurisdiction to conduct oversight into
matters that fall within the legislative jurisdiction of another committee.
116
(For instance, the Armed Services Committee has special oversight
jurisdiction over matters “relating to international arms control and
disarmament and the education of military dependents in schools,”
117
matters
falling within the legislative jurisdictions of the Foreign Affairs Committee
and the Education and Labor Committee, respectively.
118
) Perhaps most
106. Id. § 253(a)–(b), 84 Stat. at 1174–75. On the ways in which annual appropriations
facilitate congressional control over the executive, see C
HAFETZ, supra note 53, at 61–66.
107. E.g., Lloyd-La Follette Act, ch. 389, § 6, 37 Stat. 539, 555 (1912); Civil Service
Reform Act of 1978, Pub. L. No. 95-454, § 101(a), 92 Stat. 1111, 1116–17; Whistleblower
Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16; Intelligence Community
Whistleblower Protection Act of 1998, Pub. L. No. 105-272, §§ 701–02, 112 Stat. 2396, 2413–
17.
108. Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344,
tit. II, 88 Stat. 297, 302–05.
109. Inspector General Act of 1978, Pub. L. No. 95-452, § 5(b), 92 Stat. 1101, 1103; Chief
Financial Officers Act of 1990, Pub. L. No. 101-576, § 102(b)(3), 104 Stat. 2838, 2839; id.
§ 202, 104 Stat. at 2840; id. § 205, 104 Stat. at 2844; id. § 301, 104 Stat. at 2847–48; id.
§ 303(e), 104 Stat. at 2852.
110. U.S.
CONST. art. I, § 5, cl. 2.
111. R
ULES OF THE HOUSE OF REPRESENTATIVES, 116TH CONG., R. X(2)(a) (2019),
https://rules.house.gov/sites/democrats.rules.house.gov/files/documents/116-House-Rules-
Clerk.pdf [https://perma.cc/EH6T-R3HQ]. The jurisdiction of each standing committee is
specified in Rule X(1).
112. Id. R. X(2)(b)(1).
113. Id. R. X(2)(d).
114. Id. R. XI(1)(d).
115. Id. R. XI(1)(b)(1), XI(1)(c).
116. Id. R. X(3).
117. Id. R. X(3)(b).
118. See id. R. X(1)(i), X(1)(e).
2020] CONGRESSIONAL OVERSPEECH 545
importantly, the House Committee on Oversight and Reform is given roving
authority to “conduct investigations of any matter without regard to [any
rules provision] conferring jurisdiction over the matter to another standing
committee.”
119
Finally, the rules provide that the Speaker, with the approval
of the House, can appoint an ad hoc oversight committee to review matters
falling within the jurisdiction of multiple standing committees.
120
Oversight in the Senate is structured along relatively similar lines. The
standing committees are required to conduct oversight into matters within
their legislative jurisdiction;
121
they have similar reporting requirements to
those in the House;
122
and various committees are given “comprehensive”
authority to study certain matters, akin to “special oversight functions” in the
House.
123
The Senate Homeland Security and Governmental Affairs
Committee has a general oversight duty akin to that of the House Oversight
Committee,
124
a function that in large part is carried out by its Permanent
Subcommittee on Investigations.
125
B. Tools and Methods of Oversight
Although, as the previous section suggested, committees are the primary
engines of congressional oversight, individual entrepreneurial members
126
can also play a key role. Members can send information requests to agency
officials (or to private persons or entities), although the requestees are under
no legal obligation to respond.
127
Still, agency officials in particular tend to
be quite alive to the wisdom of not unnecessarily angering members of
119. Id. R. X(4)(c)(2).
120. Id. R. X(2)(e).
121. S
TANDING RULES OF THE SENATE, S. DOC. NO. 113-18, R. XXVI(8)(a) (2013),
https://www.rules.senate.gov/imo/media/doc/CDOC-113sdoc18.pdf [https://perma.cc/YTM3
-78GC]. Committee jurisdiction is specified in Rule XXV. Because the Senate regards itself
as a “continuing body,” its rules continue in effect from Congress to Congress unless changed,
which explains why the most recent version of its rules was published several Congresses ago.
See Aaron-Andrew P. Bruhl, Burying the “Continuing Body” Theory of the Senate, 95 I
OWA
L. REV. 1401, 1410–18 (2010).
122. S
TANDING RULES OF THE SENATE, S. DOC. NO. 113-18, R. XXVI(8)(b).
123. See, e.g., id. R. XXV(1)(a)(2), XXV(1)(c)(2), XXV(1)(d)(2).
124. Id. R. XXV(1)(k)(2).
125. The Permanent Subcommittee on Investigations grew out of the Truman committee,
chaired by Harry S. Truman (D-MO) during World War II and given jurisdiction to “expos[e]
waste, fraud, and abuse in the war effort and war profiteering.” Historical Background,
P
ERMANENT SUBCOMM. ON INVESTIGATIONS 1, https://www.hsgac.senate.gov/imo/media/
doc/PSI%20Historical%20Background%20(for%20website)%20Jan%202015%20update.pd
f [https://perma.cc/CH2U-JX2J] (last visited Oct. 3, 2020). Indeed, as Kriner and Schickler
note, “Truman built his public reputation not through legislating, but by investigating.”
K
RINER & SCHICKLER, supra note 45, at 1. In 1948, the committee that Truman had chaired
until 1944 became a permanent subcommittee of the Committee on Expenditures in the
Executive Departments, the precursor to today’s Committee on Homeland Security and
Governmental Affairs. Most infamously, the subcommittee was chaired by Joseph McCarthy
(R-WI) from 1953 to 1954. Historical Background, supra, at 1; see also infra Part III(B).
126. On “entrepreneurship” by members of Congress, see S
CHICKLER, supra note 99, at
14–15, 250–52.
127. See A
LISSA M. DOLAN ET AL., CONG. RSCH. SERV., RL30240, CONGRESSIONAL
OVERSIGHT MANUAL 65 (2014).
546 FORDHAM LAW REVIEW [Vol. 89
Congress
128
and are therefore generally responsive to such inquiries.
129
Moreover, members can on their own initiative travel to observe conditions
around the country (or indeed internationally). Recently, for example, a
number of Democratic members traveled to migrant detention facilities along
the U.S.-Mexico border.
130
In an illuminating example of the interaction
between oversight by individual members and oversight by committees,
several of those members subsequently testified before the House Oversight
Committee regarding what they had observed—including one member who
did not serve on the Oversight Committee.
131
At the other end of the
spectrum from individual members, the entire House of Representatives can
also conduct oversight via a “resolution of inquiry.” These are privileged
simple (i.e., single-chamber) resolutions, addressed to the head of any
executive department; if the resolution is passed by the entire House, then the
department head is “directed” to supply information to the House.
132
However, the vast majority of oversight is conducted by committees,
133
which have a variety of tools available for that purpose. They generally begin
128. See CHAFETZ, supra note 53, at 71–73 (discussing the research on agency
responsiveness to Congress).
129. The Trump administration has proven less responsive to requests from individual
members than have previous administrations (just as it has proven less responsive to requests
and even subpoenas from committees). This has provoked a bipartisan backlash. See Kevin
Freking, Grassley Tells Trump He Can’t Ignore Requests for Information from Congress, PBS
NEWS HOUR (June 9, 2017, 6:09 AM), https://www.pbs.org/newshour/politics/grassley-
tells-trump-cant-ignore-requests-information-congress [https://perma.cc/A9P6-WTZG].
130. Priscilla Alvarez, Lawmakers, Including Ocasio-Cortez, Lash out Over Conditions
Following Border Facility Tours, CNN (July 2, 2019, 8:33 AM), https://www.cnn.com/2019/
07/01/politics/alexandria-ocasio-cortez-clint-texas-facility/index.html [https://perma.cc/
XPA9-ZT3K].
131. Representatives Veronica Escobar (D-TX), Alexandria Ocasio-Cortez (D-NY),
Ayanna Pressley (D-MA), and Rashida Tlaib (D-MI) testified before the committee about
their border visits. Grace Segers, Ocasio-Cortez Condemns “Manufactured” Cruelty by White
House Immigration Policies, CBS
NEWS (July 12, 2019, 5:56 AM), https://
www.cbsnews.com/news/house-oversight-committee-holds-hearing-on-treatment-of-
migrants-at-the-border/ [https://perma.cc/KG9Z-CGUN]. Representative Escobar does not sit
on the Oversight Committee. See Oversight and Reform Members, H
OUSE COMM. ON
OVERSIGHT & REFORM, https://oversight.house.gov/members [https://perma.cc/AP6D-6R52]
(last visited Oct. 3, 2020).
132. R
ULES OF THE HOUSE OF REPRESENTATIVES, 116TH CONG., R. XIII(7) (2019). For a
recent example of an introduced resolution of inquiry, see H.R. Res. 243, 116th Cong. (as
reported by H.R. Comm. on the Judiciary, Apr. 4, 2019) (resolving “[t]hat the Attorney
General of the United States is directed to transmit, to the House of Representatives, not later
than 14 days after the date of the adoption of this resolution, copies of any document, record,
audio recording, memorandum, correspondence, or other communication in his possession, or
any portion thereof, that refers or relates to” various actions taken by former FBI Director
Andrew McCabe with regard to investigations into President Trump).
133. In the discussion that follows, “a committee” generally means a majority of the
members of the committee, although in some cases chairs are authorized to act unilaterally or
with the consent of the ranking member. However, federal law also provides that any seven
members of the House Oversight Committee or any five members of the Senate Committee
on Homeland Security and Governmental Affairs can request information from any executive
agency, which “shall submit any information requested of it relating to any matter within the
jurisdiction of the committee,” a provision sometimes referred to as the “rule of seven.” 5
U.S.C. § 2954. The rule of seven provides the minority party memberships of these
2020] CONGRESSIONAL OVERSPEECH 547
with staffers collecting publicly available information, often aided by
information provided by one or more of the statutorily created support
agencies discussed above (the Congressional Research Service, the
Government Accountability Office, the Congressional Budget Office, and
agencies’ inspectors general).
134
Committees can also make use of staff-
conducted sworn depositions: in the House, the Oversight Committee is
expressly authorized to take depositions;
135
in the Senate, a number of
committees have similar authority.
136
After the initial information-gathering
phase is complete (or at least underway), hearings themselves are a key tool
of oversight, allowing members of Congress and staffers to obtain testimony
from witnesses, to press them to explain inconsistencies or omissions, and to
begin working out framings for the information that they have received. For
the most part, testimony and supporting information is voluntarily provided
to the committees, especially by federal agencies, which both understand
themselves to have a duty to provide information to Congress and understand
that it is in their interest to stay on members’ good sides.
137
Should
information not be provided voluntarily, committees in both chambers have
the power to issue subpoenas for documents and testimony, with the
procedures for doing so specified in the committees’ own rules.
138
The
committees with a legal right to demand information from executive agencies. While agencies
have generally been responsive to rule of seven requests, the statute provides no explicit
enforcement mechanism, and federal district courts have twice held that members of Congress
lack standing to sue agencies that refuse to provide information pursuant to a rule of seven
demand. Cummings v. Murphy, 321 F. Supp. 3d 92 (D.D.C. 2018); Waxman v. Thompson,
No. CV04-3467, 2006 WL 8432224 (C.D. Cal. July 24, 2006).
134. See supra text accompanying notes 103–09; see also Carl Levin & Elise J. Bean,
Defining Congressional Oversight and Measuring Its Effectiveness, 64 W
AYNE L. REV. 1, 11–
14 (2018); David E. Pozen, Freedom of Information Beyond the Freedom of Information Act,
165 U.
PA. L. REV. 1097, 1143–44 (2017).
135. R
ULES OF THE HOUSE OF REPRESENTATIVES, 116TH CONG., R. X(4)(c)(3)(A).
136. See S. COMM. ON RULES & ADMIN., AUTHORITY AND RULES OF SENATE COMMITTEES,
2017–2018, S. DOC. NO. 115-4, at 4, 15, 44, 63, 114, 137, 160, 178, 188 (2017),
https://www.senate.gov/general/resources/pdf/authority_and_rules_of_senate_committees.p
df [https://perma.cc/84EL-RWNW] (committee rules allowing the taking of depositions for
the Select Committee on Intelligence, Special Committee on Aging, and the Committees on
Agriculture, Nutrition, and Forestry; Commerce, Science, and Transportation; Ethics; Foreign
Relations; Homeland Security and Governmental Affairs; Indian Affairs; and the Judiciary).
137. In this regard, the Trump administration’s large-scale stonewalling of congressional
information requests is a significant outlier. See Pema Levy & Marisa Endicott, 6 Things the
White House Won’t Give Congress—and How Democrats Can Fight Back, M
OTHER JONES
(May 13, 2019, 8:58 AM), https://www.motherjones.com/politics/2019/05/6-things-the-
white-house-wont-give-congress-and-how-democrats-can-fight-back/ [https://perma.cc/
6NS2-9EFL]; see also Jonathan H. Adler, McConnell and Chafetz on Trump’s Resistance to
Congressional Oversight, T
HE VOLOKH CONSPIRACY (May 3, 2019, 8:58 AM), https://
reason.com/2019/05/03/mcconnell-and-chafetz-on-trumps-resistance-to-congressional-
oversight/ [https://perma.cc/C5TN-JC4S] (collecting in one place a debate between Michael
McConnell and me on how the Trump administration has responded to oversight attempts in
the 116th Congress).
138. See 2 U.S.C. § 190m; R
ULES OF THE HOUSE OF REPRESENTATIVES, 116TH CONG., R.
XI(2)(m)(1)(B); S
TANDING RULES OF THE SENATE, S. DOC. NO. 113-18, R. XXVI(1) (2013).
548 FORDHAM LAW REVIEW [Vol. 89
Supreme Court has repeatedly upheld the congressional subpoena power,
139
and it has suggested that the standard for legal sufficiency of a congressional
subpoena is easily met. In Wilkinson v. United States,
140
the Court
announced a five-part test: (1) Was the committee’s investigation authorized
by Congress?; (2) Was the investigation pursuant to a valid legislative
purpose?; (3) Was the specific inquiry pertinent to the subject matter of the
investigation?; (4) Was the subpoena’s target contemporaneously apprised of
the pertinency of the inquiry?; and (5) Did the investigation violate any of
the target’s constitutional rights (e.g., First Amendment rights of free
association and free speech, the Fifth Amendment right against self-
incrimination, etc.)?
141
As for the “valid legislative purpose” prong, the
Court has long indicated both that any of Congress’s constitutional powers
suffices to furnish such a purpose and that the authorization for the
investigation need not specify the constitutional power on its face.
142
Information demands are backed by several mechanisms for forcing
compliance. Defiance of a valid subpoena constitutes contempt of Congress,
which can be either criminally prosecuted
143
or enforced by the
congressional chamber itself via civil suit, arrest, or use of other
congressional tools such as the power of the purse.
144
A witness who lies
under oath (whether in a hearing or in an authorized staff deposition) can be
prosecuted for perjury,
145
and even when not sworn, a willfully false
statement given in the course of “any investigation or review, conducted
pursuant to the authority of any committee, subcommittee, commission or
office of the Congress, consistent with applicable rules of the House or
Senate” is criminally punishable.
146
(False statements, like refusing to
comply with a subpoena, would also constitute contempt of Congress.)
C. Oversight Done “Right”: The Consensus View
To what end are members, committees, and chambers of Congress meant
to use these oversight tools? Recall the language used by participants and
commentators across the political spectrum to describe what the hearings
investigating President Trump should and should not be. Any suggestion that
the hearings were intended to be showy or theatrical came with a clear
negative connotation. Instead, they should be primarily receptive in nature:
they should be aimed at drawing out new facts or at least new implications
139. See, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975); McGrain v.
Daugherty, 273 U.S. 135, 175 (1927).
140. 365 U.S. 399 (1961).
141. Id. at 408–09. As previously noted, in 2020 the Court added several new factors to be
taken into account when a subpoena targets the personal papers of the president. See supra
note 98.
142. See In re Chapman, 166 U.S. 661, 669–70 (1897).
143. See 2 U.S.C. §§ 192, 194.
144. For a discussion of contempt of Congress generally and each chamber’s options for
addressing it, see C
HAFETZ, supra note 53, at 152–98.
145. 18 U.S.C. § 1621.
146. Id. § 1001(c)(2).
2020] CONGRESSIONAL OVERSPEECH 549
of old facts. If there were no new facts to be uncovered, that suggested that
the hearings would be mere “theater” at best, a “circus” at worst. This way
of thinking about congressional hearings was certainly not new in 2019—it
reflects a long-standing, cross-partisan, and cross-ideological consensus
147
about what it means to do oversight right.
Consider the Congressional Research Service’s Oversight Manual, which
defines oversight as “the review, monitoring, and supervision of the
implementation of public policy,”
148
a definition wholly focused on the
receipt of information, not the dissemination of it. Indeed, the Manual goes
on to list ten purposes of oversight, none of which involves public
communication in any way.
149
Likewise, one of the canonical studies of
congressional investigations describes their purpose as being “to obtain
information, so that [the chamber’s] legislative functions may be discharged
on an enlightened rather than a benighted basis.”
150
It is therefore a
perversion when this function is overtaken by a base desire for “publicity,”
in which “[c]harge and counter-charge, the breath of scandal and the clash of
personalities, make a better show than knotty problems of public policy.”
151
More recently, Maya Kornberg lamented that some recent hearings “have
seemed more circus than serious investigation” but insisted that
“congressional hearings are not just theater”—that is, they “can bring
lawmakers diverse and analytical information.”
152
The idea that oversight is, above all, about finding facts has further
implications: if everyone is engaging in the enterprise in good faith, it should
147. Two caveats are in order here: first, to describe this as a consensus view is not to
suggest by any means that it is unanimously held (as the next part will indicate). Rather, it is
meant to suggest that it is widely held, especially by the sorts of political elites most likely to
garner cross-partisan and cross-ideological respect. And second, the claim that there is a
cross-partisan consensus about what constitutes good oversight does not mean that members
of both parties don’t attempt to use oversight in other ways. But the fact that they perceive
the need to deny that this is what they are doing, even as they do it, suggests that there is
indeed some level of consensus that such behavior is wrong.
148. D
OLAN ET AL., supra note 127, at 1; see also MORTON ROSENBERG, THE CONST.
PROJECT, WHEN CONGRESS COMES CALLING: A STUDY ON THE PRINCIPLES, PRACTICES, AND
PRAGMATICS OF LEGISLATIVE INQUIRY 1 (2017), https://archive.constitutionproject.org/wp-
content/uploads/2017/05/WhenCongressComesCalling.pdf [https://perma.cc/PX9U-YDKT]
(a former Congressional Research Service staffer using the same definition).
149. D
OLAN ET AL., supra note 127, at 1–3. The ten purposes listed in the Manual are: to
ensure executive compliance with legislative intent; improve the efficiency, effectiveness, and
economy of governmental operations; evaluate program performance; prevent executive
encroachment on legislative prerogatives and powers; investigate alleged instances of poor
administration, arbitrary and capricious behavior, abuse, waste, dishonesty, and fraud; assess
agency or officials’ ability to manage and carry out program objectives; review and determine
federal financial priorities; ensure that executive policies reflect the public interest; protect
individual rights and liberties; and other specific purposes. Id. The final, catchall category
contains another ten subpurposes—none of which involves public communication.
150. T
AYLOR, supra note 73, at 6.
151. Id. at xiii–xiv.
152. Maya Kornberg, Plenty of Congressional Hearings Are Not Circuses. Here’s How
We Know, W
ASH. POST (Aug. 14, 2018, 7:00 AM), https://www.washingtonpost.com/
news/monkey-cage/wp/2018/08/14/plenty-of-congressional-hearings-are-not-circuses-heres-
how-we-know/ [https://perma.cc/EEP4-TAGE].
550 FORDHAM LAW REVIEW [Vol. 89
be both bipartisan and civil. After all, if the facts don’t care about your
feelings, then finding the facts shouldn’t be contingent on your ideology or
partisanship. Of course, few are so naïve as to deny that good faith
differences of interpretation will arise, but so long as finding and collating
those facts remains at the heart of the enterprise, those differences can be
cabined. Crystalizing this view, retired Senators Carl Levin (D-MI) and
Richard Lugar (R-IN), who served a combined seventy-two years in the
Senate, wrote in 2018 that, “[w]hen oversight hearings were held more for
political purposes than for real fact-finding purposes, they didn’t work.
Hearings like these may have been the exception rather than the rule, but they
damaged Congress’ reputation. They didn’t uncover the facts, and they
didn’t have the confidence of the American people.”
153
Likewise, one
scholar of oversight has lamented that “some hearings—ones that could have
addressed problems constructively—were used to promote partisan
goals.”
154
He went on to contrast the pursuit of partisan ends, on the one
hand, with “constructive endeavors,” on the other.
155
In this spirit, in honor
of Senator Levin’s eight years chairing the Senate Permanent Subcommittee
on Investigations,
156
the Levin Center at Wayne Law awards an annual Carl
Levin Award for Effective Oversight. The selection criteria include that the
oversight activities led by the winner “must have been conducted on a
bipartisan basis and the candidate must have played a significant role in
ensuring the bipartisan nature of the investigation,” and “[t]he oversight
investigation must have been focused on obtaining the facts underlying the
subject of the investigation.”
157
To be clear, there are plenty of oversight activities in Congress that would
qualify for this award.
158
A recent study by Jason MacDonald noted that
“much oversight is conducted on a bipartisan basis . . . during both divided
and unified government,”
159
and that “Democrats and Republicans . . .
continued to work together in recent years on some oversight endeavors
153. Carl Levin & Richard Lugar, Opinion, Democrats Can’t Check the White House
Alone. Neither Can Republicans, R
OLL CALL (Nov. 12, 2018, 5:02 AM),
https://www.rollcall.com/news/opinion/democrats-republicans-congress-oversight
[https://perma.cc/B58T-NTNX].
154. Jason MacDonald, Partisan Trends in Congressional Oversight, 1987–2016,
E
XTENSIONS, Winter 2019, at 16, 21.
155. Id.
156. See Historical Background, supra note 125, at 1.
157. Nominations for Carl Levin Award for Effective Oversight, L
EVIN CTR. AT WAYNE L.,
https://law.wayne.edu/levin-center/oversightaward [https://perma.cc/J2NE-LSPH] (last
visited Oct. 3, 2020); see also Press Release, Levin Ctr. at Wayne L., Senators Richard Burr
and Mark Warner Receive the Carl Levin Award for Effective Oversight (Jan. 29, 2020),
https://law.wayne.edu/levin-center/pdfs/accessible_2020-01-29_press_release_carl_levin
_award_2019.pdf [https://perma.cc/7ZQY-C7MT] (awarding the 2020 prize to Senator
Richard Burr (R-NC) and Mark Warner (D-VA) for their leadership of the Senate Intelligence
Committee’s “bipartisan, fact-based investigation into Russian interference in the 2016
election”).
158. Indeed, the 2020 award was given to two senators. See Press Release, Levin Ctr. at
Wayne L., supra note 157.
159. MacDonald, supra note 154, at 16.
2020] CONGRESSIONAL OVERSPEECH 551
while opposing one another on other oversight matters.”
160
In addition,
Maya Kornberg’s work analyzed hearings in several committees in both
chambers in the 114th Congress (2015–2016) and found that witness
testimony at these hearings tended to be at a high analytical level and
ideologically balanced.
161
Moreover, she found that, although some hearings
were “theatrical,” others were “more ‘educational’ hearings on technical,
uncontentious topics with nonpartisan experts” or “‘deliberative
hearings’ . . . offer[ing] an opportunity to learn from and legitimize the
perspectives of witnesses and fellow committee members with whom a
member of Congress might ordinarily disagree.”
162
In other words, even in
a time of high partisan polarization, a great many congressional hearings live
up to the consensus ideal.
But what about the rest of it? What about the hearings that Kornberg,
reflecting the consensus view, dismisses as “theatrical”?
II.
OVERSPEECH
A few observers—perhaps not coincidentally, from the world of
entertainment—have insisted on the value of the performative element of
congressional hearings. The New York Times’s chief television critic, for
instance, argued that Robert Mueller should testify publicly because “there’s
a power to images and voices on a screen . . . . TV events concentrate
attention and focus.”
163
At the same time, Academy Award-winning actor
Robert De Niro wrote in an open letter to Mueller, “[Y]ou said that your
investigation’s work ‘speaks for itself.’ It doesn’t . . . . [T]he country needs
to hear your voice. Your actual voice.”
164
Rejecting the anti-theatricality of
the consensus view of oversight, the critic and the actor were making the case
for congressional oversight as congressional overspeech.
Overspeech is best understood not as something distinct from
congressional oversight but rather as the use of the tools of oversight in ways
that the consensus view regards as illegitimate. It thus makes sense to speak
in terms of the degree to which oversight hearings are best characterized as
overspeech, rather than in terms of a binary. So what are the indicia of
overspeech? In order of increasing controversiality, they are
communicativity, performativity, and divisiveness. Each will be addressed
in turn below.
A. Communicativity
On the consensus view, oversight is supposed to be about receiving facts.
If a special counsel has already written a detailed report containing all the
160. Id. at 17.
161. Kornberg, supra note 152.
162. Id.
163. James Poniewozik, Reluctant Witness for Capitol Hearings Might Be the Perfect One
for Television, N.Y.
TIMES, May 31, 2019, at A17.
164. Robert De Niro, Opinion, Robert Mueller, We Need to Hear More, N.Y. TIMES, May
30, 2019, at A27.
552 FORDHAM LAW REVIEW [Vol. 89
relevant facts, then having him testify can serve no legitimate purpose.
165
Scholars
166
and members of Congress
167
alike have largely agreed that, in
the words of Senators Levin and Lugar, oversight should be aimed at “real
fact-finding.”
168
Of course, the proponents of the consensus view recognize that hearings
communicate facts to the public. But they are insistent that this
communication is a by-product of public fact-finding, rather than a legitimate
object to be pursued in its own right. So, for example, the CRS Oversight
Manual, which does not list any form of public communication as one of the
purposes of oversight,
169
nevertheless devotes several pages to
“Communicating with the Media.”
170
Likewise, Senator Levin and Elise
Bean suggest ten metrics for measuring the quality of an investigation, the
last of which is, “[w]as the investigation able to attract attention from
policymakers and the public?”
171
In other words, the consensus view
understands the purpose of oversight to be the discovery of facts;
communication of those facts to the public is distinctly secondary.
But there has long been another view of oversight. In 1885, a doctoral
candidate at Johns Hopkins University named Woodrow Wilson argued that
Congress failed in its oversight responsibilities precisely because its
oversight involved too little overspeech:
An effective representative body . . . ought, it would seem, not only to
speak the will of the nation, which Congress does, but also to lead it to its
conclusions, to utter the voice of its opinions, and to serve as its eyes in
superintending all matters of government,—which Congress does not
do.
172
He went on to declare that “[i]t is the proper duty of a representative body to
look diligently into every affair of government and to talk much about what
it sees . . . . The informing function of Congress should be preferred even to
its legislative function.”
173
Here is a full-throated argument for public
communication, not simply as a by-product of oversight, but rather as its
animating purpose. And, importantly, Wilson is making an argument for the
argumentative use of oversight tools: “[W]hen earnestly and purposefully
conducted, [congressional speech] clears the public mind and shapes the
demands of public opinion.”
174
Wilson is not here claiming that
investigations can simply uncover facts and publicize them. Facts on their
own are inert: they neither do anything nor do they require any particular
165. See supra text accompanying notes 1, 5, 6, 14.
166. See supra text accompanying notes 150–52, 154–55.
167. See supra text accompanying notes 153, 156–57.
168. See supra text accompanying note 153.
169. See supra note 149 and accompanying text.
170. D
OLAN ET AL., supra note 127, at 76–79.
171. Levin & Bean, supra note 134, at 19.
172. W
OODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS
195 (Dover Publ’ns 2006) (1885).
173. Id. at 198.
174. Id.
2020] CONGRESSIONAL OVERSPEECH 553
response. Facts, as Wilson recognized, have motivating power only when
they are presented (explicitly or implicitly) as part of a larger narrative.
175
Thus, the congressional “informing function” is necessarily an attempt to
shape public views.
In this, Wilson was evincing a sophisticated view of the relationship
between institutional politics and mass politics. As David Mayhew has more
recently emphasized, “political activity takes place before the eyes of an
appraising public—not in a Washington, D.C., realm that can be theoretically
or empirically isolated.”
176
Rather, politics within and between institutions
takes place in the public sphere
177
—and, indeed, in interbranch conflicts, it
will generally be the institution that wins the public over to its side that
emerges stronger.
178
And this is not simply about crude electoral ties. We
are accustomed to seeing even second-term presidents publicly campaign for
their positions in interbranch conflicts, and we are accustomed as well to
thinking about the ways in which reservoirs of public support empower the
judiciary to stand up to the other branches or the ways in which concern about
maintaining public support pushes judges towards reticence. In short, we get
a descriptively much richer (albeit less parsimonious) understanding of
national politics if we think in terms of continuous feedback effects between
institutional politics, electoral politics, interest group politics, and all of the
other parts of the political universe. But the consensus view of oversight
implicitly rests on a much less robustly interactive model: it presupposes that
the behaviors and interactions of political institutions can fruitfully be
discussed in isolation from the interaction between political elites and their
publics. Recall, in this regard, Telford Taylor’s distinction between the
salutary and enlightening discussion of “knotty problems of public policy,”
on the one hand, and the base desire for “publicity” on the other.
179
Thinking in terms of overspeech helps to foreground the communicative
use of oversight as a legitimate tool of constitutional politics. In facing a
question like whether a particular witness should be called to testify (for
example, Robert Mueller in the House investigation or John Bolton in the
Senate impeachment trial), it counsels us to focus, not primarily on whether
his testimony would be likely to produce any new facts or even new
interpretations of facts, but rather on whether the hearing at which he testified
175. Cf. CHAFETZ, supra note 53, at 224 (“Facts in isolation do not cry out for secrecy;
facts within a specific political context do.”); K
RINER & SCHICKLER, supra note 45, at 78
(“[S]candals are politically constructed events.”).
176. D
AVID R. MAYHEW, PARTISAN BALANCE: WHY POLITICAL PARTIES DON’T KILL THE
U.S. CONSTITUTIONAL SYSTEM xviii (2011).
177. See DAVID R. MAYHEW, AMERICA’S CONGRESS: ACTIONS IN THE PUBLIC SPHERE,
JAMES MADISON THROUGH NEWT GINGRICH 1–28 (2000).
178. For an elaboration of this account of interbranch conflict, including some important
caveats, see C
HAFETZ, supra note 53, at 15–26.
179. See supra text accompanying note 151.
554 FORDHAM LAW REVIEW [Vol. 89
would be likely to shape public views—including, perhaps, the views of
some particular subsets of the public—in a meaningful way.
180
It also, of course, directs our attention to the media of communication
through which public views of congressional activity are shaped. Effective
overspeakers will necessarily pay attention to the media environment in
which they operate and will shape their behavior so as to increase the
likelihood of favorable coverage.
181
This means that, while overspeech
occurs in all media environments—indeed, the two case studies in Part III are
deliberately situated in circumstances very different from today and from one
another—the particular forms and techniques that characterize effective
overspeech will change over time.
182
It may be difficult to render any confident judgments on the long-term
effects of the congressional investigations into President Trump,
183
but we
do have significant evidence that congressional overspeech moves public
opinion. As Mayhew noted in 2005, “a [congressional] probe can sometimes
gain the attention of the public, weigh down the White House, trigger
resignations of leading officials, and register a long-term impact on public
opinion and government policy.”
184
He identified thirty-one “congressional
committee ‘exposure probes’ of the executive branch that dr[e]w
180. For a recent explicit acknowledgment of the communicative uses of overspeech,
consider Washington, D.C., Mayor Muriel Bowser’s description of her and her congressional
allies’ preparations for upcoming House Oversight Committee hearings on D.C. statehood:
We . . . go into this hearing knowing that when our fellow Americans see us and
when they know the full story of local Washington, DC, the real DC, not the federal
district—they support us. So our plan is to use the upcoming hearing to speak
directly to the American people.
Mayor Bowser Delivers Georgetown Law’s 2019 Philip A. Hart Memorial Lecture: The
Opening Argument for DC Statehood, G
OV’T OF D.C.: MURIEL BOWSER, MAYOR (Sept. 4,
2019), https://mayor.dc.gov/release/mayor-bowser-delivers-georgetown-law%E2%80%99s-
2019-philip-hart-memorial-lecture-opening-argument-dc [https://perma.cc/VS8S-UD24].
181. Overspeech thus partakes of what Jarol Manheim termed “strategic political
communication,” which involves “the use of . . . such relevant organizational behaviors as
how news organizations make decisions regarding news content . . . to shape and target
messages so as to maximize their desired impact while minimizing undesired collateral
effects.” Jarol Manheim, The News Shapers: Strategic Communication as a Third Force in
Newsmaking, in T
HE POLITICS OF NEWS, THE NEWS OF POLITICS 94, 100–01 (Doris Graber et
al. eds., 1998); see also P
ATRICK SELLERS, CYCLES OF SPIN: STRATEGIC COMMUNICATION IN
THE
U.S. CONGRESS (2010) (discussing feedback effects between legislators’ behavior and
media behavior in shaping the public political agenda).
182. See C.
DANIELLE VINSON, CONGRESS AND THE MEDIA: BEYOND INSTITUTIONAL POWER
4–5 (2017) (noting that the efficacy of efforts at public political persuasion has been a topic
of interest since at least Plato and that changes in the media environment merely alter the
forms of that engagement); see also D
ANIEL DAYAN & ELIHU KATZ, MEDIA EVENTS: THE LIVE
BROADCASTING OF HISTORY 27 (1992) (“Television uses these formulas to tell its stories, but
television obviously did not invent them. Neither did literature. They are on view in myth, in
children’s games, in history books.”).
183. The political consequences of the worldwide COVID-19 pandemic that arose nearly
contemporaneously with the Senate impeachment trial may well have swamped any effect
arising from the impeachment proceedings themselves.
184. D
AVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND
INVESTIGATIONS, 1946–2002, at 8 (2d ed. 2005).
2020] CONGRESSIONAL OVERSPEECH 555
considerable publicity” between 1946 and 1990,
185
and he found that each of
them “gave a president some real trouble.”
186
This “trouble” ranged from
the resignation of administration officials (including, of course, President
Richard Nixon himself) to bad press during election campaigns.
187
More
recently, Doug Kriner and Eric Schickler have conducted a more systematic
survey of investigations into the executive branch and have come to a similar
conclusion regarding their effect on the administration. Analyzing both
decades of public opinion survey data and original survey experiments, they
found that congressional investigations of the president “systematically
depress presidential job approval ratings.”
188
This, in turn, can “reduce [the
president’s] political leverage, and thereby provide at least a partial
counterweight to presidential power.”
189
More specifically, looking at all
congressional committee investigations of alleged executive branch
misconduct between 1953 and 2014, they found that “increasing the number
of days of investigative hearings in a month from 0 to 20, slightly less than a
two standard deviation shift, decreases presidential approval by
approximately 2.5%.”
190
These results were essentially the same regardless
of whether the investigation was conducted in the House or the Senate
191
and
regardless of whether there was unified or divided government.
192
Additional survey experiments strengthened the conclusion that the publicity
surrounding the congressional investigation itself, not simply publicity
around the alleged executive misconduct, drove a significant amount of this
shift in public opinion.
193
These shifts in public opinion, in turn, drive not only election outcomes
but also the behavior of institutionally sited actors in between elections.
194
This can happen in several ways. For one, the public reaction to legislative
overspeech may in turn make it politically easier for Congress to pass
executive-curtailing legislation,
195
refuse to confirm executive branch
nominees,
196
trim or restructure executive branch appropriations,
197
or even
impeach.
198
Moreover, presidents, anticipating these reactions from
Congress, may preemptively alter their behavior in light of the public’s
response to some instance of overspeech, in an attempt to stave off a more
severe congressional response.
199
Finally, and most broadly, overspeech
185. Id. For definitions of each of those criteria, see id. at 8–11, and for each of the thirty-
one probes, see id. at 13 tbl.2.1.
186. Id. at 27.
187. Id. at 27–28.
188. K
RINER & SCHICKLER, supra note 45, at 8.
189. Id. at 75.
190. Id. at 88.
191. Id. at 90.
192. Id. at 93.
193. Id. at 96–103.
194. See C
HAFETZ, supra note 53, at 15–26.
195. KRINER & SCHICKLER, supra note 45, at 124–26.
196. See C
HAFETZ, supra note 53, at 119–34.
197. See id. at 61–77.
198. See id. at 148–51.
199. K
RINER & SCHICKLER, supra note 45, at 126–27.
556 FORDHAM LAW REVIEW [Vol. 89
may have collateral consequences in reallocating power across the branches,
even in policy areas unrelated to the overspeech itself, by sapping the
political capital a president relies on and by enhancing the political capital of
congressional actors.
200
As an example, consider that President Ronald
Reagan’s nomination of Robert Bork to the Supreme Court was hampered by
Reagan’s unpopularity at the time, which, in turn, was in no small part a
function of the Iran-Contra hearings that had recently concluded.
201
In short, the communicative use of oversight tools has often served as a
significant driving force in American constitutional politics.
B. Performativity
It would be a strange account of oversight—or, indeed, of any political
activity—to acknowledge that it was centrally concerned with public
communication and yet require it to be indifferent as to the effectiveness of
that communication. Humans are seldom moved by logos alone. Ethos and
pathos are at least as significant in changing both minds and behavior.
202
Much of what political actors do in their public communication—at least, if
they’re any good at it—is make appeals both to their own authority (i.e.,
ethical arguments) and to their audience’s emotions (i.e., pathetic
arguments).
203
But the consensus view of oversight is almost entirely logocentric. If the
lodestar of good oversight is the finding of facts, then the nature of their
presentation should be largely irrelevant. Facts are facts, regardless of
whether they’re written in a report or spoken in a gravelly baritone. Appeals
to emotion only get in the way of facts—that has been the essence of the
critique of poetics since at least Plato.
204
And of course this idea is at the
core of the uniformly pejorative use of performance-based descriptions of
oversight. Even Kriner and Schickler, who have written the definitive recent
work on the communicative uses of oversight, presented their findings as
evidence that oversight hearings are not “mere political theater.”
205
And yet, theatricality is inevitably enmeshed with politics. As sociologist
Jeffrey Alexander has written in the context of presidential elections,
“Candidates work to present compelling performances of civil competence
to citizen audiences at a remove not only geographically but also emotionally
and morally . . . . [I]n a democratic society it is the attribution of
200. Id. at 172–205.
201. C
HAFETZ, supra note 53, at 22–24; KRINER & SCHICKLER, supra note 45, at 172–73.
202. Cf. Jamal Greene, Pathetic Argument in Constitutional Law, 113 C
OLUM. L. REV.
1389 (2013) (bringing an analysis of pathos into a domain that had long been dominated by
logocentric and ethocentric discourses).
203. 2 A
RISTOTLE, Rhetoric, in THE COMPLETE WORKS OF ARISTOTLE bk. I, pt. 2, at 2152,
2155 (Jonathan Barnes ed., W. Rhys Roberts trans., Princeton Univ. Press 1984).
204. P
LATO, THE REPUBLIC bk. III, at 82 (Richard W. Sterling & William C. Scott trans.,
1985); see also Kenji Yoshino, The City and the Poet, 114 YALE L.J. 1835, 1841–59 (2005).
205. K
RINER & SCHICKLER, supra note 45, at 7.
2020] CONGRESSIONAL OVERSPEECH 557
meaningfulness that determines who will exercise power.”
206
What shapes
a campaign’s success is not whether the candidate is the embodiment of
attractive ideals but rather whether she is perceived as such: “Being truthful,
honest, and fair are discursive claims; whether these claims take root is a
matter of performative success.”
207
Or, more expansively, candidates
succeed if their performances are “structured in a manner that evokes our
concerns, builds pictures in our minds, and allows us to share their worldly
visions.”
208
Importantly, the fact that something is theatrical does not make
it untrue—even the truth needs to be performed to be believed. Or, as veteran
political journalist Jodi Kantor told Alexander about the 2008 presidential
campaign, “It’s theatrical even when it’s incredibly authentic.”
209
What is true of presidential electoral politics is equally true of interbranch
politics. Performativity is both central to the practice and not necessarily in
conflict with authenticity or veracity.
210
Consider the constitutive elements
of a theatrical performance.
211
First, there are the actors themselves. There’s
a reason Mueller’s testimony was carried live on network television, while
plenty of other oversight hearings vie for space on one of the C-SPAN
channels. Casting a famous actor is often the best way to ensure an audience.
Sometimes committees take this quite literally: “Committee leaders have
learned that celebrity witnesses at committee hearings draw more press (and
sometimes more committee members) than experts and bureaucrats. So actor
Ben Affleck is invited to speak at a hearing on the Congo, and comedian
Stephen Colbert testifies at a hearing on immigration reform.”
212
But even
without entertainment industry professionals, some actors are clearly a bigger
draw than others, and good casting is an important part of any production.
Moreover, the question of casting goes beyond simply the actors’ fame; their
206. JEFFREY C. ALEXANDER, THE PERFORMANCE OF POLITICS: OBAMA’S VICTORY AND THE
DEMOCRATIC STRUGGLE FOR POWER 9 (2010).
207. Id. at 12.
208. Id. at 286.
209. Id. at 15.
210. This is an essential insight of performance studies, which takes as a starting point that
“[a]ny event, action, or behavior may be examined ‘as’ performance.” R
ICHARD SCHECHNER,
PERFORMANCE STUDIES: AN INTRODUCTION 48 (3d ed. 2013). Or, as Erving Goffman put it,
the term “performance” can be applied to “all the activity of an individual which occurs during
a period marked by his continuous presence before a particular set of observers and which has
some influence on the observers.” E
RVING GOFFMAN, THE PRESENTATION OF THE SELF IN
EVERYDAY LIFE 22 (1959). In Schechner’s terminology, political elites are often engaged in
“make-belief” performances, which are characterized by their “enacting the effects they want
the receivers of their performances to accept ‘for real.’” Using the example of a presidential
address to the nation, Schechner notes that
[e]ach detail is choreographed, from how the president makes eye contact (with the
camera, with the selected audience at a town meeting), to how he uses his hands,
dresses, and is made up. The goal of all this is to ‘make belief’—first, to build the
public’s confidence in the president, and second, to sustain the president’s belief in
himself. His performances convince himself even as he strives to convince others.
S
CHECHNER, supra, at 43.
211. As Schechner notes, analyzing an event as performance necessarily leads to certain
questions about location, costuming, props, roles and scripts, etc. S
CHECHNER, supra note 210,
at 48–49.
212. V
INSON, supra note 182, at 26.
558 FORDHAM LAW REVIEW [Vol. 89
suitability for the role is also an important consideration. Commentators
noted, for example, that the career diplomats who testified before the House
Intelligence Committee in the Trump impeachment proceedings “resembled
a prep-school headmaster, tough but fair and near impossible to discredit”
with an “anchorman voice,”
213
or a “badass woman of the world, who chose
to serve her country in the more remote and dangerous corners of the planet”
and was “calm and measured, firm but not angry, as she delivered her
devastating account.”
214
Next, there is the scenery. Where the action takes place matters, because
a performance that comes across as sublime in one setting can come across
as farcical in another. The physical trappings of Congress—both the
chambers themselves and the committee rooms—are meant to project a sense
of seriousness, purpose, and power. The coat of arms of the United States is
generally somewhere on the walls, American flags are sprinkled liberally
about, and the décor is generally dark woods and leather furniture. The
gravitas of the scenery alone has significant power—and can be arranged to
have even more. In 1805, Aaron Burr—then in his final days as vice
president and president of the Senate—sought to use the impeachment trial
of Federalist Justice Samuel Chase to rehabilitate his own reputation. Burr
needed the good publicity: his fellow Democratic-Republicans remained
irate that he had refused to step aside when he and Thomas Jefferson tied in
the Electoral College in 1800, and Federalists remained irked that he had
killed Alexander Hamilton in a duel the previous year. Scene-setting at the
Chase impeachment trial was a big part of Burr’s public relations effort. As
Richard Ellis noted, Burr arranged the Senate to “look[] more like a theater
than a court room,” including by building additional galleries for the
occasion.
215
Connecticut Federalist Senator Uriah Tracy described the
chamber as “now fitted up in a style beyond anything which has ever
appeared in this country.”
216
Over a thousand spectators watched the drama
of Chase’s acquittal,
217
and Burr’s scenery may well have contributed to the
“dignified and impartial” air that won Burr the respect of even some of the
Federalists.
218
For a more recent example of scene-setting, consider President Trump’s
2019 State of the Union address: it was scheduled to take place on January
29 of that year. However, as the date approached, the federal government
was in the middle of a lengthy shutdown, largely occasioned by disagreement
between the White House and the Democratic-controlled House over funding
213. Leibovich, supra note 26 (describing William Taylor).
214. Susan B. Glasser, In Trump’s Jaded Capital, Marie Yovanovitch’s Uncynical
Outrage, N
EW YORKER (Nov. 16, 2019), https://www.newyorker.com/news/letter-from-
trumps-washington/in-trumps-jaded-capital-marie-yovanovitchs-uncynical-outrage
[https://perma.cc/8XPK-BULW] (describing Marie Yovanovitch).
215. R
ICHARD E. ELLIS, THE JEFFERSONIAN CRISIS: COURTS AND POLITICS IN THE YOUNG
REPUBLIC 96 (1971). I am grateful to Farah Peterson for bringing Burr’s scene-setting to my
attention.
216. Id.
217. Id.
218. Id. at 105–06.
2020] CONGRESSIONAL OVERSPEECH 559
for a wall on the Mexican border. In the context of the shutdown, Speaker
Nancy Pelosi (D-CA) rescinded the invitation for Trump to deliver the speech
in the House chamber on the previously appointed date. Trump was upset
and pressed Pelosi to reverse course once again, but when she held firm, he
agreed to postpone the address until after the shutdown.
219
Importantly for
our purposes here, Trump could have chosen to give the speech in the
Republican-controlled (but physically smaller and less imposing) Senate
chamber or from the White House (or, for that matter, not at all). But he did
not, tweeting that “there is no venue that can compete with the history,
tradition and importance of the House Chamber.”
220
In other words, scenery
matters.
Consider next the costuming. Before characters open their mouths, their
attire can tell you a great deal about them. In the arena of institutional
politics, there tends to be a fairly conservative dress code. For male
politicians, dark business suits and ties are the norm. Female politicians face
a more fraught sartorial landscape, defined by the simultaneous pressure to
appear both stereotypically feminine and powerful,
221
a gendered double
standard that leads to significantly more discussion of women’s costuming
choices than men’s.
222
Certain types of political actors also have more
elaborate dress codes: most prominently, judges are expected to wear robes.
And some costuming fads can become nearly irresistible at times. For
example, for several years after the terrorist attacks of September 11, 2001,
nearly all political actors were expected to wear American flag lapel pins.
223
Deviations from the sartorial norm often draw notice,
224
which makes them
a potentially powerful way to send a message. At the (delayed)
225
2019 State
of the Union address, nearly all of the eighty-nine Democratic women wore
219. See Emily Stewart, What the Hell Is Going on with the State of the Union, Explained,
V
OX (Jan. 24, 2019, 8:05 AM), https://www.vox.com/2019/1/23/18194898/trump-state-of-
union-constitution-pelosi [https://perma.cc/SU6U-C5Q3].
220. Donald J. Trump (@realDonaldTrump), T
WITTER (Jan. 23, 2019, 11:18 PM),
https://twitter.com/realDonaldTrump/status/1088289916826648577 [https://perma.cc/AL2X-
7KXM].
221. See Amelia Thomson-DeVeaux, Americans Say They Would Vote for a Woman,
But . . . , F
IVETHIRTYEIGHT (July 15, 2019), https://fivethirtyeight.com/features/americans-
say-they-would-vote-for-a-woman-but/ [https://perma.cc/ZH6C-YW2P].
222. See, e.g., Megan Garber, Why the Pantsuit?, A
TLANTIC (Aug. 2, 2016), https://
www.theatlantic.com/entertainment/archive/2016/08/youre-fashionable-enough-hillary/
493877/ [https://perma.cc/QY8D-CUJM].
223. See Anne E. Kornblut, O’er the Lapels of the Free, Fewer Star-Spangled Pins, N.Y.
TIMES, July 3, 2005, § 9, at 1 (noting that the flag lapel pin “became de rigueur as a sign of
patriotism after the Sept. 11 attacks”).
224. See, e.g., Arnold H. Lubasch, Jack Weinstein: Creative U.S. Judge Who Disdains
Robe and High Bench, N.Y.
TIMES, May 28, 1991, at B5; Why Did Obama Drop His Flag
Pin?, CHI. TRIB., Oct. 5, 2007, at 20; Jake Woolf, Barack Obama’s Tan Suit “Controversy”
Is Now Three Years Old, GQ (Aug. 29, 2017), https://www.gq.com/story/barack-obama-tan-
suit-anniversary [https://perma.cc/8A5J-RCWP]; Jim Yardley, On Tour, Greek Leaders Wear
No Ties and Aim for Looser Belts, N.Y.
TIMES, Feb. 4, 2015, at A4.
225. See supra text accompanying notes 219–20.
560 FORDHAM LAW REVIEW [Vol. 89
white, in a nod to the early twentieth-century suffrage movement.
226
The
effect was striking: a concentrated sea of white every time cameras panned
the chamber, with the effect that it was almost impossible for commentators
not to talk about why the members had dressed the way they had. The New
York Times’s chief fashion critic declared admiringly that, “[a]s a piece of
political theater, the white was strikingly effective. On a night when the role
of the audience in the chamber was to listen and, maybe, stand and applaud
(or sit and look disappointed), the women still managed to make themselves
heard.”
227
In that context, being heard required first being seen, and it was
their costuming choices that ensured that the Democratic representatives
were seen. (In an attempt to override the Democratic women’s message,
Donald Trump Jr. appealed to an alternative costuming tradition, tweeting
that there was “not one American flag pin among” the members wearing
white.
228
Observers quickly pointed out that photos of the Trump family at
the speech did not show them wearing the pins either.)
229
The communicative use of attire is on occasion noticeable in the departure
from the business attire norm in committee hearings as well. When former
Turing Pharmaceuticals CEO Martin Shkreli was subpoenaed to appear
before the House Oversight Committee in 2016, he did not wear a tie—a fact
widely noted in the press as being of a piece with his generally dismissive
attitude toward the hearing.
230
In the opposite direction, when Facebook
CEO Mark Zuckerberg, a notoriously casual dresser, testified before the
Senate Commerce and Judiciary Committees in the aftermath of revelations
about his platform’s sloppy handling of users’ data and its role in foreign
meddling in the 2016 presidential election, it was widely noted that he wore
an “I’m Sorry Suit.”
231
And when Lieutenant Colonel Alexander Vindman
226. Marisa Itai, Why Did Women in Congress Wear White for Trump’s State of the Union
Address?, W
ASH. POST (Feb. 6, 2019), https://www.washingtonpost.com/history/2019/
02/05/why-are-women-lawmakers-wearing-white-state-union/ [https://perma.cc/U8A6-
M32K].
227. Vanessa Friedman, A Sea of White, Lit by History, N.Y.
TIMES, Feb. 7, 2019, at D5.
228. Donald Trump Jr. (@DonaldJTrumpJr), TWITTER (Feb. 6, 2019, 2:18 PM),
https://twitter.com/DonaldJTrumpJr/status/1093227370285334534 [https://perma.cc/QJ4S-
KXUN].
229. See Callum Paton, Trump Jr. Criticizes Congresswomen for Not Wearing American
Flag Pin—His Brother Tweeted Pic of ‘Team Trump’ Doing Same Thing, N
EWSWEEK (Feb. 7,
2019), https://www.newsweek.com/donald-trump-jr-twitter-state-union-congress-congress-
women-white-sufragettes-1321530 [https://perma.cc/372L-6HYF].
230. See, e.g., Sarah Karlin, Martin Shkreli Calls Lawmakers ‘Imbeciles,’ POLITICO (Feb.
4, 2016, 8:18 AM), https://www.politico.com/story/2016/02/martin-shkreli-congress-hearing-
218725 [https://perma.cc/R8UT-DCST]; Linette Lopez, Martin Shkreli Could Not Stop
Laughing During His Testimony to Congress, B
US. INSIDER (Feb. 4, 2016, 9:28 AM),
https://www.businessinsider.com/live-martin-shkreli-the-ceo-of-valeant-and-others-face-
congress-2016-2 [https://perma.cc/28DY-GN5G].
231. Vanessa Friedman, Shedding T-shirt for a Suit and Tie, N.Y.
TIMES, Apr. 11, 2018, at
A17; see also Christina Cauterucci, Mark Zuckerberg’s Congressional Hearing Suit,
Reviewed, S
LATE (Apr. 10, 2018, 4:07 PM), https://slate.com/technology/2018/04/mark-
zuckerbergs-congressional-hearing-suit-and-tie-reviewed.html [https://perma.cc/M8L8-
MPLZ]; Robin Givhan, Mark Zuckerberg Is One of the Suits Now. He’d Better Learn to Get
Comfortable in One, W
ASH. POST (Apr. 10, 2018), https://www.washingtonpost.com/
news/arts-and-entertainment/wp/2018/04/10/mark-zuckerberg-wore-a-suit-to-washington-
2020] CONGRESSIONAL OVERSPEECH 561
testified in the Trump impeachment inquiry, it was notable that he did so in
his Army dress uniform, despite the fact that he did not wear a uniform in his
day job at the National Security Council.
232
As one commentator noted, the
uniform was meant to convey that Vindman “stood aside from partisan
politics, . . . prized country above self, . . . [and] understood testifying as a
duty.”
233
Members, too, make costuming decisions. For instance, a number of
members regularly wear cowboy boots in an effort to signal both regional
identity and a certain affinity for rugged individualism.
234
Other members
have made costuming choices on especially high-profile occasions to make
a statement about diversity and inclusiveness. At the opening of the 116th
Congress in 2019, Representative Debra Haaland (D-NM), a Native
American, wore turquoise jewelry and traditional Pueblo attire to her
swearing in, and Representative Rashida Tlaib (D-MI), a Palestinian-
American, chose to be sworn in wearing a thobe.
235
In addition to witnesses and members, the audience for hearings
occasionally comes on stage through the medium of costume. For instance,
the anti-war group Code Pink made their attire such an effective part of their
message that, on at least one occasion, activists were kicked out of a
committee hearing based solely on their pink clothing, before they even had
a chance to engage in any disruptive behavior.
236
And in a stunt that has
garnered significant media attention since 2017, Ian Madrigal has repeatedly
dressed up as Rich Uncle Pennybags (the mascot of the Monopoly board
game) and sat behind CEOs and Trump administration officials as they
testified, frequently in the same television frame as the witness, “adjusting a
monocle or brandishing a faux $100 bill.”
237
Madrigal’s costuming choice
theres-no-going-back-to-hoodies/ [https://perma.cc/C2AW-U9EN]; Doreen St. Félix, The Suit
Wears Mark Zuckerberg, N
EW YORKER (Apr. 11, 2018), https://www.newyorker.com/
culture/annals-of-appearances/the-suit-wears-mark-zuckerberg [https://perma.cc/FRW6-
KGUN].
232. Vanessa Friedman, Sartorial Rules of Combat (No Jacket Required), N.Y.
TIMES,
Nov. 22, 2019, at A16.
233. Id.
234. See Anne C. Mulkern, The Boot, a Symbol of the West, Makes a Powerful Statement
in Washington, D
ENVER POST, June 5, 2007, at 1A.
235. See Cady Lang, How Women in Congress Are Using Fashion to Send a Message, T
IME
(Feb. 6, 2019), https://time.com/5520372/2019-state-of-the-union-fashion/ [https://perma.cc/
FL85-3HJQ]; Rashida Tlaib, Rashida Tlaib on Why She’s Wearing a Palestinian Gown to Be
Sworn into Congress, E
LLE (Jan. 3, 2019), https://www.elle.com/culture/career-politics/
a25714487/rashida-tlaib-thobe-sworn-into-congress/ [https://perma.cc/A9VV-EDZP].
236. C
AMI ROWE, THE POLITICS OF PROTEST AND US FOREIGN POLICY: PERFORMATIVE
CONSTRUCTION OF THE WAR ON TERROR 68 (2013).
237. Harrison Smith, Monopoly Man: How an Elaborate Act of Protest Stole the Show on
Capitol Hill, W
ASH. POST (Jan 14, 2019), https://www.washingtonpost.com/lifestyle/
magazine/monopoly-man-how-an-elaborate-act-of-protest-stole-the-show-on-capitol-
hill/2019/01/11/983e73be-0d40-11e9-84fc-d58c33d6c8c7_story.html [https://perma.cc/
BLE9-EWEX]. For a small sampling of Madrigal’s prominence, see, for example, Emily
Birnbaum, ‘Monopoly Man’ Returns for Google CEO Hearing, H
ILL (Dec. 11, 2018, 10:34
AM), https://thehill.com/policy/technology/420749-monopoly-man-returns-for-google-ceo-
hearing [https://perma.cc/JQ4L-2Q26]; Liz Moyer, Someone Dressed Like the Monopoly Guy
Is Photobombing the Senate’s Equifax Hearing, CNBC (Oct. 4, 2017, 12:28 PM),
562 FORDHAM LAW REVIEW [Vol. 89
almost certainly made more of an impact on more people than anything said
by either the witnesses or the committee members at those hearings.
Next, consider props. A well-utilized prop can reinforce an argument that
is being made verbally, hint at something not said, or even substitute for
words entirely. And it can do so in a way that communicates more effectively
than words alone. When Attorney General Barr refused to testify before the
House Judiciary Committee about his handling of Mueller’s report,
Representative Steve Cohen (D-TN) brought a bucket of (cold) Kentucky
Fried Chicken to the early morning hearing and began eating it. As The
Washington Post noted, “The clicks of cameras suddenly echoed throughout
the room as watchers chuckled at his insinuation that Barr was too afraid to
show up for questioning.”
238
Indeed, Cohen’s creative use of a prop earned
him two mentions on that week’s episode of Saturday Night Live
239
—a level
of publicity that would have been unlikely without the chicken. And when
President Trump chose to use his 2020 State of the Union address—delivered
the day before his acquittal in the Senate impeachment trial—as an argument
for reelection, Speaker Pelosi made a point of tearing up her copy of his
remarks in full view of the cameras.
240
That use of a prop garnered far more
attention in the speech’s aftermath than the Democrats’ official response.
Finally, of course, there is the script itself. This includes the logos-heavy
material that is so central to the consensus account of oversight, but it also
includes more than that. It includes emotional (i.e., pathetic) appeals—
bringing forward witnesses with heartrending (or, alternatively, joyful and
inspiring) stories to help “put a human face” on facts that might otherwise be
dry, dull, and unmotivating. It can include ethical appeals as well. Although
members of Congress are usually not sworn in when they testify before
congressional committees, Representative Alexandria Ocasio-Cortez (D-
NY) did request to be sworn in when she testified before the House Oversight
Committee (on which she sits) about conditions she had observed at the
southern border.
241
When asked why she had chosen to be sworn, Ocasio-
https://www.cnbc.com/2017/10/04/someone-dressed-like-the-monopoly-guy-is-
photobombing-the-senates-equifax-hearing.html [https://perma.cc/44R7-X457]; Christianna
Silva, Meet the ‘Monopoly’ Man Who Has Been Photobombing CEOs in Congress This Week,
N
EWSWEEK (Oct. 4, 2017), https://www.newsweek.com/monopoly-man-made-appearance-
equifax-and-wells-fargo-hearings-heres-why-677984 [https://perma.cc/DN7K-QDVS].
238. Rachel Bade et al., Barr’s No-Show Triggers Contempt Threats, Nixon Comparison
and More Impeachment Talk, W
ASH. POST (May 2, 2019), https://www.washingtonpost.com/
powerpost/barr-is-a-no-show-at-house-hearing-on-mueller-report-as-democrats-warn-of-
threat-to-democracy/2019/05/02/005c0ab2-6cda-11e9-a66d-a82d3f3d96d5_story.html
[https://perma.cc/6GHZ-QTKC].
239. Tamar Auber, Rep. Cohen Responds to SNL Mocking His ‘Cold’ Chicken Stunt: We
Got It ‘the Night Before,’ M
EDIAITE (May 5, 2019, 6:06 PM), https://www.mediaite.com/tv/
rep-cohen-responds-to-snl-mocking-his-cold-chicken-stunt-we-got-it-the-night-before/
[https://perma.cc/56JW-JT2Q].
240. Sheryl Gay Stolberg, Showdown Turns Brittle on Floor of the House, N.Y.
TIMES,
Feb. 5, 2020, at A15.
241. On that testimony, see supra text accompanying notes 130–31. On her desire to be
sworn, see Marina Pitofsky, Ocasio-Cortez Defends Being Sworn in at Hearings on
Conditions for Migrants, H
ILL (July 12, 2019, 2:32 PM), https://thehill.com/blogs/blog-
2020] CONGRESSIONAL OVERSPEECH 563
Cortez tweeted that it was because the “GOP has been stating that I am lying
about the translated accounts of migrants at the border.”
242
In other words,
asking to be sworn was a dramatic gesture intended to inspire a sense in the
audience that this character is trustworthy—a classical form of ethical
argumentation.
The scripting of overspeech can also include dramatically timed plot
twists, as when Senator Chuck Schumer (D-NY) in 2007 elicited surprising
(to everyone but Schumer and his then chief counsel, Preet Bharara)
testimony from former Deputy Attorney General James Comey. Comey
recounted a story that had taken place when he was serving as acting attorney
general during Attorney General John Ashcroft’s 2004 convalescence from
gallbladder surgery. White House Counsel Alberto Gonzales and Chief of
Staff Andy Card went to Ashcroft’s hospital room to try to pressure him to
sign off on reauthorizing a wiretapping program that Comey had refused to
support.
243
Ashcroft refused, and the next day the White House renewed the
program against the Department of Justice’s advice. After Ashcroft, Comey,
and several other DOJ officials (including FBI Director Robert Mueller)
threatened to resign, the White House backed down and restructured the
program.
244
Although the broad outlines of that story had been previously
published, Comey’s was the first public eyewitness account.
245
Six years
later, The Washington Post’s senior congressional correspondent recalled
that, during Comey’s testimony, “[y]ou could hear a pin drop in the Dirksen
hearing room, and in fact we did, when one reporter—stunned at what he was
hearing—literally just dropped his pen onto the press table.”
246
The
testimony had the effect of reviving the flagging congressional investigations
into the politically motivated firing of a number of U.S. attorneys,
247
and
Alberto Gonzales, who had by then become attorney general, resigned a little
over three months later.
248
Senator Chuck Hagel (R-NE) said publicly that
Comey’s testimony marked the moment that he believed Gonzales had to
resign,
249
and a large number of news stories on Gonzales’s resignation
briefing-room/news/452835-ocasio-cortez-defends-swearing-in-at-hearing-amid-criticism
[https://perma.cc/P25Q-6AA3].
242. Alexandria Ocasio-Cortez (@AOC), T
WITTER (July 12, 2019, 12:18 PM), https://
twitter.com/AOC/status/1149714706413817856 [https://perma.cc/9BZV-XJFK].
243. Richard B. Schmitt, Panel Told of a Sickbed Face-Off, L.A.
TIMES, May 16, 2007, at
1.
244. Id.
245. Id.
246. Paul Kane, James Comey and the Most Riveting 20 Minutes of Congressional
Testimony. Maybe Ever., W
ASH. POST (May 30, 2013), https://www.washingtonpost.com/
news/the-fix/wp/2013/05/30/james-comey-and-the-most-watchable-20-minutes-of-
congressional-testimony-maybe-ever/ [https://perma.cc/94HP-USZC].
247. See Evan Perez, 10 Years Ago: Comey Testifies About Confrontation with Bush White
House, CNN (May 15, 2017, 6:32 AM), https://www.cnn.com/2017/05/15/politics/comey-
gonzalez-surveillance-showdown/index.html [https://perma.cc/NUM9-5LH4]. On the U.S.
attorneys firings generally, see John McKay, Train Wreck at the Justice Department: An
Eyewitness Account, 31 S
EATTLE U. L. REV. 265, 265–92 (2008).
248. Perez, supra note 247.
249. Susan Page & Kevin Johnson, As Gonzales Exits, Battle Looming for White House,
USA
TODAY, Aug. 28, 2007, at 1A.
564 FORDHAM LAW REVIEW [Vol. 89
prominently mentioned the testimony.
250
To be sure, Comey’s testimony had
added some new facts to the public record. But far more importantly, it gave
those facts a face and a voice. And by not telegraphing the contents of the
testimony in advance, Schumer and Bharara managed to orchestrate that
most attention-grabbing of dramatic devices, the sudden plot twist. Making
the revelation in real time, to an unexpecting audience, almost certainly
heightened the breathlessness and drama with which Comey’s testimony was
reported in the media. Indeed, The Washington Post’s media critic described
the sickbed scene as something “right out of a Hollywood movie.”
251
Nor
was he the only one to reach for the metaphor of the cinema
252
or the stage.
253
Readers and viewers at home were invited to be riveted in precisely the way
that the few pen-dropping reporters in physical attendance had been. And
that dramatic pacing had real consequences for Gonzales and for the George
W. Bush administration more generally.
254
Overspeech is thus shot through with performative elements, ranging from
casting to scripting, from scenery to costuming, all of it aimed at more
effectively communicating a public message.
C. Divisiveness
A third and final distinguishing feature of overspeech is its divisiveness.
This can mean that it tends to divide along partisan lines or ideological ones.
(The link between partisanship and ideology has, of course, changed
significantly over time.)
255
On the consensus view, divisiveness is something to be deeply lamented.
This makes a certain amount of sense on its own premises: If the goal is
simply the discovery of facts and if everyone is engaging in good faith, then
the investigators should not divide along preexisting lines. Of course,
sophisticated proponents of the consensus view are not unaware that
cognitive biases will color how people receive and process facts and that
those biases will correlate with their partisan and ideological leanings. But
250. See, e.g., Michael Kranish & Susan Milligan, Gonzales Resigns; Probes Will
Continue, B
OS. GLOBE, Aug. 28, 2007, at 1A; Eric Lichtblau & Scott Shane, Attorney General
Held Firm on War Policies, N.Y.
TIMES, Aug. 28, 2007, at A1; James Gordon Meek, Gonzo
Gone—& Not a Moment Too Soon!, N.Y.
DAILY NEWS, Aug. 28, 2007, at 19; Josh Meyer &
Tom Hamburger, The Resignation of Alberto Gonzales: What He Leaves Behind, L.A.
TIMES,
Aug. 28, 2007, at 1.
251. Howard Kurtz, When Justice Is Hospitalized, W
ASH. POST, May 18, 2007, 2007
WLNR 28533216.
252. See, e.g., Editorial, A Telling Hospital Visit, L
AS VEGAS SUN, May 16, 2007, at A4,
ProQuest Doc. No. 388932766; Editorial, No Moral Authority, B
ALT. SUN, May 17, 2007, at
12A; Eugene Robinson, Lights out for this Attorney General, N
EW ORLEANS TIMES PICAYUNE,
July 28, 2007, at 7, 2007 WLNR 14500323.
253. Editorial, Gonzales’ Gall, L.A.
TIMES, May 18, 2007, at A22, ProQuest Doc. No.
422175889; Editorial, In the Dark, HOUS. CHRON., May 20, 2007, 2007 WLNR 9472236;
Editorial, Unfit to Be Attorney General, NEWARK STAR-LEDGER, May 17, 2007, at 16, 2007
WLNR 9306478.
254. See C
HAFETZ, supra note 53, at 125–26 (noting that the scandal surrounding
Gonzales’s departure significantly limited Bush’s options in picking a replacement).
255. See generally N
OLAN MCCARTY, POLARIZATION (2019).
2020] CONGRESSIONAL OVERSPEECH 565
those preexisting commitments should be understood in precisely that way:
as potential sources of bias, to be cabined as effectively as possible in the
investigatory process. It shouldn’t matter whether the police officer
investigating a homicide is a Republican or a Democrat, a liberal or a
conservative; nor, on the consensus view, should it matter whether the
member of Congress investigating accusations of executive branch
malfeasance is. So thoroughly ingrained is this idea of consensus in the
consensus view that one of the four criteria Levin and Bean propose for
oversight effectiveness is simply “the extent to which the investigation was
conducted in a bipartisan manner.”
256
This consensus view rests on the idea that oversight can be divorced from
politics. Expressing this view, Neal Katyal criticized congressional
Democrats for
myopically view[ing] the [Mueller] report in political terms . . . . That is
the wrong way to look at it. The right way is to look at it in law enforcement
terms—a president who takes grave steps to undermine the rule of law in
the very way the report describes is not fit for office.
257
But note that Katyal has smuggled an irreducibly political consideration—
fitness for office—into what he insists is an apolitical realm.
258
Insisting that
the (political) position one holds is apolitical, natural, simply flowing from
the facts themselves, can often be an effective form of political script writing,
but an analysis of such claims should not simply take them at face value.
Thinking instead in terms of the interactions between institutionally sited
actors and their publics gives us a window onto the divisive uses of
congressional overspeech. In some cases, the goal of the overspeech may be
to appeal to only part of the population, trying to move it in a particular
direction—perhaps with the expectation that the rest of the public can be
moved in time. Consider again the Mueller testimony: early polling showed
that it had no measurable impact on overall support for impeaching President
256. Levin & Bean, supra note 134, at 19. The other three criteria of effectiveness are the
“quality”—see supra text accompanying note 171—the “credibility,” and the “policy
impacts” of the investigation. Levin & Bean, supra note 134, at 17–22.
257. Neal K. Katyal, Opinion, Three Questions for Mueller, N.Y.
TIMES, July 23, 2019, at
A27.
258. The concept of the political is of course a highly contested one, and different
demarcations of the realm of the political may make sense in different contexts. In some work,
I have defined the political capaciously, as anything involving “the processes and institutions
of collective self-government.” C
HAFETZ, supra note 53, at 16. On that view, the police officer
investigating the homicide is just as irreducibly political as the member of Congress deciding
on policy—however, there may well be sufficient cross-ideological and cross-partisan
consensus on what it means to do police work well that the political nature of the police work
would be obscured from everyday view. In other work, I have defined the realm of the
political in narrower, Weberian terms, as one who gives direction to state policy, which
direction is then carried out by bureaucrats who are not understood as politicians. See Josh
Chafetz, Constitutional Maturity, or Reading Weber in the Age of Trump, 34 C
ONST.
COMMENT. 17, 19–24 (2019). Each of these conceptions of the political may be helpful in
thinking through different sorts of problems. See id. at 19 n.9. For our purposes here, note
that on either conception, Katyal is mistaken to think that questions of fitness for office can
be hived off as “law enforcement” and therefore treated as apolitical.
566 FORDHAM LAW REVIEW [Vol. 89
Trump.
259
However, this is not because it failed to move voters—it simply
further polarized the electorate. Nearly half of Democrats said the hearings
made them more supportive of impeachment, while fewer than 10 percent
said it made them less supportive.
260
This was counterbalanced by a shift of
similar magnitude, but in the opposite direction, among Republicans, with
roughly equal numbers of independents saying that it made them more and
less supportive of impeachment.
261
If one thinks the Democrats’ goal in
staging the Mueller hearings was to immediately move the views of the
public at large, then the hearings were a bust. However, if one thinks of them
as one part of a larger communicative strategy—one act in the dramatic
performance—then the outcome is not so clear. Prior to Mueller’s testimony,
eighty-six Democratic members of the House had come out in favor of
opening an impeachment inquiry into Trump (37 percent of the House
Democratic caucus).
262
By the end of the week of Mueller’s testimony, that
number had grown to ninety-nine,
263
and in less than a month it had grown
to 123 (52 percent of the caucus).
264
(No Republicans publicly supported
opening an impeachment inquiry, while one independent—former
Republican Justin Amash of Michigan—supported it.) Importantly, the
immediate aftermath of the Mueller testimony also saw the highest-ranking
Democrat to that point, caucus vice chair Representative Katherine Clark (D-
259. See, e.g., Kendall Karson, Partisan Differences on Impeachment Remain After
Mueller Testimony, as Nearly Half of Americans Show Little Movement, ABC
NEWS (July 28,
2019, 8:54 AM), https://abcnews.go.com/Politics/partisan-differences-impeachment-remain-
mueller-testimony-half-americans/story?id=64587293 [https://perma.cc/6SPF-BAU8]; Eli
Yokley, 41% of Voters Say Mueller Didn’t Exonerate Trump; 35% Say He Did, M
ORNING
CONSULT (July 26, 2019, 4:00 PM), https://morningconsult.com/2019/07/26/41-of-voters-say-
mueller-didnt-exonerate-trump-35-say-he-did/ [https://perma.cc/EE2A-6RHB].
260. Karson, supra note 259.
261. Id.
262. The New York Times maintained a running list of Democratic House members who
announced support for an impeachment inquiry. Alicia Parlapiano et al., Full List: Who
Supports an Impeachment Inquiry Against Trump?, N.Y.
TIMES, https://www.nytimes.com/
interactive/2019/05/31/us/politics/trump-impeachment-congress-list.html [https://perma.cc/
CV2F-CF56] (Oct. 10, 2019 3:30 PM). The list did not specify when members announced
their support for such an inquiry. I used the Wayback Machine to find a cached version of the
Times list from the morning of July 24, 2019, the day of Mueller’s testimony, which provided
the figure cited in the text. Full List: Who Supports an Impeachment Inquiry Against Trump?,
N.Y.
TIMES, http://web.archive.org/web/20190724074035/https://www.nytimes.com/
interactive/2019/05/31/us/politics/trump-impeachment-congress-list.html [https://perma.cc/
34GV-NCQ2] (Internet Archive Wayback Machine reproduction of the New York Times on
July 24, 2019).
263. This figure is derived from the Wayback Machine’s cache of the New York Times list
for the afternoon of July 27, 2019. Full List: Who Supports an Impeachment Inquiry Against
Trump?, N.Y.
TIMES, http://web.archive.org/web/20190727041024/https://
www.nytimes.com/interactive/2019/05/31/us/politics/trump-impeachment-congress-list.html
[https://perma.cc/N9GP-PW74] (Internet Archive Wayback Machine reproduction of the New
York Times on July 27, 2019).
264. Full List: Who Supports an Impeachment Inquiry Against Trump?, N.Y.
TIMES,
http://web.archive.org/web/20190818113453/https://www.nytimes.com/interactive/2019/05/
31/us/politics/trump-impeachment-congress-list.html [https://perma.cc/VBC9-FGCM]
(Internet Archive Wayback Machine reproduction of the New York Times on August 18,
2019).
2020] CONGRESSIONAL OVERSPEECH 567
MA), publicly announce support for an impeachment inquiry.
265
Within a
couple of weeks, Judiciary Committee Chair Jerry Nadler (D-NY) began
publicly characterizing his committee’s ongoing investigation as “formal
impeachment proceedings,”
266
and in less than two months, the committee
approved (on a party-line vote) a resolution establishing procedures to govern
“the Committee’s investigation to determine whether to recommend articles
of impeachment with respect to President Donald J. Trump.”
267
One should
be careful not to attribute all of those shifts directly to the Mueller testimony,
but it is clear that it had an impact on the Democratic segment of the public
that, in turn, paved the way for—or in some cases, pushed toward—more
aggressive support for impeachment among congressional Democrats. These
developments set the stage for the subsequent revelations of presidential
misconduct,
268
which convinced enough additional Democrats to support
impeachment that Speaker Pelosi threw the weight of party leadership behind
it in late September 2019,
269
and the cameral resolution structuring the
impeachment inquiry passed by a vote of 232 to 196: all but two Democrats
voted for it (as did independent Justin Amash), and all Republicans voted
against it.
270
And once such proceedings are underway, they hold the possibility—
although by no means the certainty
271
—of moving the public at large. How
do we know? Because it has happened before. In June of 1973, only 19
percent of Americans thought President Nixon should be impeached,
including only 6 percent of Republicans.
272
By early August of 1974—mere
days before his resignation—support for Nixon’s removal from office
273
had
265. Nicholas Fandos et al., After Mueller, Divide Persists for Democrats, N.Y. TIMES, July
26, 2019, at A1.
266. Andrew Desiderio, Nadler: ‘This Is Formal Impeachment Proceedings,’ POLITICO
(Aug. 8, 2019), https://www.politico.com/story/2019/08/08/nadler-this-is-formal-
impeachment-proceedings-1454360 [https://perma.cc/3D95-SDBP].
267. For the committee resolution, see Resolution for Investigative Procedures, H.
COMM.
ON THE
JUDICIARY, 116TH CONG., (2019), https://docs.house.gov/meetings/JU/JU00/
20190912/109921/BILLS-116pih-ResolutionforInvestigativeProcedures.pdf [https://
perma.cc/4QM8-A6QK]. For the vote tally, see Final Passage on Resolution for Investigative
Procedures, H.
COMM. ON THE JUDICIARY, 116TH CONG. (Sept. 12, 2019), https://docs.
house.gov/meetings/JU/JU00/20190912/109921/CRPT-116-JU00-Vote002-20190912.pdf
[https://perma.cc/Z2H4-XY5N].
268. See supra text accompanying notes 17–41.
269. Nicholas Fandos, Pelosi Will Open Formal Impeachment Inquiry, Accusing President
of ‘Betrayal’ of the Nation, N.Y.
TIMES, Sept. 25, 2019, at A1.
270. Nicholas Fandos & Sheryl Gay Stolberg, Fractured House Backs Impeachment
Inquiry, N.Y.
TIMES, Nov. 1, 2019, at A1.
271. There is some reason for skepticism that the Trump impeachment proceedings in
particular will prove to have had lasting political consequences. See supra note 183.
272. Greg Sargent, Opinion, Will Support Grow for Impeaching Trump?: Data on Nixon
Offers a Clue, W
ASH. POST (June 3, 2019), https://www.washingtonpost.com/opinions/
2019/06/03/will-support-grow-impeaching-trump-data-nixon-offers-clue/ [https://perma.cc/
U4M7-9JS8].
273. Gallup changed its wording over a series of polls, asking in June 1973 and February
1974 whether Nixon should be “impeached” and asking in July and August 1974 whether he
should be “removed.” Id. To whatever extent the change in wording makes a difference, it
probably understates the shift in public opinion, since impeachment is a precursor to removal.
568 FORDHAM LAW REVIEW [Vol. 89
reached 58 percent of adults, including 31 percent of Republicans.
274
(Over
the same time, support for impeachment/removal among independents rose
from 18 percent to 55 percent and among Democrats from 27 percent to 71
percent.)
275
As historian Julian Zelizer noted, two of the events that seem to
have precipitated significant pro-impeachment/removal shifts in public
opinion were the beginning of House Judiciary Committee impeachment
hearings in May 1974 and the reporting out of articles of impeachment in
July 1974: “This wasn’t Congress waiting on the public . . . . It was the other
way around—Congress provided guidance to the public.”
276
Moreover, the
shift in public opinion seems at least to have been correlated with a shift in
some members’ voting. In October 1973, the first votes in the House
Judiciary Committee on matters related to impeachment—votes on
procedural matters about how the subpoena power would be exercised in the
course of the investigation—were straight party-line votes.
277
Nine months
later, six of the committee’s seventeen Republicans voted for the first article
of impeachment, alleging obstruction of justice in connection with the cover-
up of the Watergate break-in and other illegal activities.
278
Two things are
worth noting here. First, partisanship was still hugely important in the
Judiciary Committee votes: every Democrat on the committee voted to
impeach, and only about a third of Republicans did. But second, what started
as an almost purely partisan issue—almost no Republicans in the public at
large supported impeachment, and the earliest Judiciary Committee votes
were straight party-line—became something else over time. Overspeech that
began as partisan managed to persuade a significant number of members of
the other party.
In addition to affecting the behavior of elected officials, the public politics
shaped in part by the overspeech surrounding Watergate also had electoral
ramifications. The 1974 midterm elections were a landslide for the
Democrats, who gained a net of fifty House seats. The new Ninety-Fourth
Congress included seventy-six freshman Democrats who would become the
vaunted “Class of ‘74”—frequently referred to as the “Watergate babies.”
279
274. Id.
275. Id.
276. Id. There should be little doubt that committee activity was capable of driving this
sort of shift in public opinion:
The Hearings and deliberations of the Senate Select Watergate Committee and the
House Judiciary Committee lasted for more than a year. Media coverage was
intense, with more than half of the front pages of major American newspapers
concerned with Watergate stories during days when the Senate Select Committee
was in session, and more than one-third of major network news programming was
devoted to the Watergate affair.
Brian R. Fry & John S. Stolarek, The Impeachment Process: Predispositions and Votes, 42 J.
POL. 1118, 1119 (1980).
277. James M. Naughton, House Panel Starts Inquiry on Impeachment Question, N.Y.
TIMES, Oct. 31, 1973, at 1.
278. Richard Lyons & William Chapman, Judiciary Committee Approves Article to
Impeach President Nixon, 27 to 11, W
ASH. POST, July 28, 1974, at A1.
279. The most comprehensive treatment of these members of Congress eschews the term
“Watergate babies,” on the grounds that it “suggest[s] immaturity and self-centeredness that
2020] CONGRESSIONAL OVERSPEECH 569
Partisan congressional overspeech may thus have the effect of convincing
more of the public to become the overspeakers’ co-partisans (and/or of
increasing electoral turnout among those who already are).
In short, thinking in terms of overspeech helps us see that there are a
number of public-facing goals that may very effectively be pursued through
proceedings that divide along partisan or ideological lines.
III.
CASE STUDIES
This Article has already discussed a number of recent examples of
congressional overspeech, ranging from the Mueller hearings to Comey’s
testimony about the hospital-bed meeting to Ocasio-Cortez’s testimony about
migrant detention facilities. These most recent instances of overspeech have
been disseminated to their audiences by twenty-first-century technologies of
communication, prominently including the internet. But while effective
overspeech is necessarily calibrated to take advantage of the media of the
day, it is by no means a new phenomenon, as the following two case studies
from earlier media environments will demonstrate.
It should also be noted that these case studies will not strike readers as
uniformly ennobling. That, too, was part of the logic behind their selection.
Just as a hammer can be used to build a bookcase or commit an assault, so
too the tool of congressional overspeech can be used for purposes that we
come to see in retrospect as both good and bad. The goal here is not to
convince the reader of the normative valence of the goals pursued by various
overspeakers but rather to give two thick accounts of overspeech in practice,
demonstrating the ways in which it empowers congressional actors.
A. The Senate Munitions Inquiry, 1934–1936
On February 8, 1934, Senator Gerald Nye, a progressive Republican from
North Dakota, introduced a resolution calling on the Foreign Relations
Committee to “investigate the activities of individuals and of corporations in
the United States engaged in the manufacture, sale, distribution, import, or
export of arms, munitions, or other implements of war.”
280
The resolution
was the brainchild of peace activist Dorothy Detzer, and she and Nye drafted
it together.
281
Detzer and Nye were both capitalizing on and furthering a
surge of interest in the “merchants of death” thesis, which held that American
munitions manufacturers had played a significant role in pressing for
few [of those members] appreciated.” JOHN A. LAWRENCE, THE CLASS OF ‘74: CONGRESS
AFTER WATERGATE AND THE ROOTS OF PARTISANSHIP 4–5 (2018). Lawrence also dislikes the
label because “[s]urprisingly, few members of the Class of 1974 credit Watergate as a central
motivation in their decision to run for Congress, since many had made the decision before the
full dimensions of the scandal were known.” Id. at 52. But of course a candidate’s motivation
for running and the explanations for that candidate’s victory are two different things.
280. S. Res. 179, 73d Cong. (1934) (referred to S. Comm. on Foreign Rels.; discharged and
referred to S. Comm. on Mil. Affs.).
281. M
ATTHEW WARE COULTER, THE SENATE MUNITIONS INQUIRY OF THE 1930S: BEYOND
THE
MERCHANTS OF DEATH 11, 20–21 (1997); DOROTHY DETZER, APPOINTMENT ON THE HILL
156–58 (1948).
570 FORDHAM LAW REVIEW [Vol. 89
American entry into World War I. The month after Nye introduced his
resolution, Fortune magazine—which generally took a conservative, pro-
business line—published a lengthy exposé of the European armaments
industry (broadly construed to include “mines, smelters, armament works,
holding companies, and banks”), accusing it of “working inevitably for the
destruction of such little internationalism as the world has achieved so
far.”
282
Reader’s Digest, then the most widely read magazine in America,
excerpted the article two months later.
283
In the same year, two books were
published on the topic, one of which (Helmuth C. Engelbrecht and Frank C.
Hanighen’s Merchants of Death: A Study of the International Armament
Industry) was a Book-of-the-Month Club selection.
284
This large-scale
revival of interest in how America got into World War I would come to have
significant consequences for the terms on which it entered the next World
War—and the congressional overspeech touched off by Detzer and Nye’s
resolution would play a significant role in the process.
The chair of the Senate Foreign Relations Committee, Key Pittman (D-
NV), wanted little to do with Nye’s resolution when it was referred to his
committee, and he transferred it to the Military Affairs Committee. Detzer
and her allies in the peace movement were alarmed by this, seeing the
Military Affairs Committee as “predominantly and vigorously military
minded.”
285
They accordingly worked out a two-pronged plan. First, they
would seek to combine Nye’s resolution with one by his fellow Republican
Arthur Vandenberg of Michigan. The Vandenberg resolution, which was
backed by the American Legion and had also been referred to the Military
Affairs Committee, called for both an investigation of the findings of the War
Policies Commission, which had been created to “take the profit out of war,”
and also an inquiry into the possibility of creating a government monopoly
on munitions manufacturing.
286
Combining Nye’s resolution with
Vandenberg’s would ensure “a double-barreled support from two
diametrically opposed wings of public opinion—the peace movement and the
Legion.”
287
Second, Detzer sought to secure a more congenial venue for the
hearings: she proposed that, rather than have either the Foreign Relations
Committee or the Military Affairs Committee conduct the investigation, a
special committee be impaneled to do so.
288
The ultimate resolution,
cosponsored by Nye and Vandenberg and reported out favorably by the
Military Affairs Committee, combined their proposals and called for the
282. Arms and the Men, FORTUNE, Mar. 1934, at 53, 53.
283. Arms and the Men, R
EADER’S DIG., May 1934, at 49. On the twentieth-century
influence of Reader’s Digest, see J
OANNE P. SHARP, CONDENSING THE COLD WAR: READER’S
DIGEST AND AMERICAN IDENTITY xiii–xiv (2000).
284. H.
C. ENGELBRECHT & F. C. HANIGHEN, MERCHANTS OF DEATH: A STUDY OF THE
INTERNATIONAL ARMAMENTS INDUSTRY (1934); GEORGE SELDES, IRON, BLOOD AND PROFITS:
AN EXPOSURE OF THE WORLD-WIDE MUNITIONS RACKET (1934). On the Book-of-the-Month
Club selection of Merchants of Death, see COULTER, supra note 281, at 22.
285. D
ETZER, supra note 281, at 158.
286. S. Con. Res. 9, 73d Cong. (1934) (referred to S. Comm. on Mil. Affs.).
287. D
ETZER, supra note 281, at 159.
288. Id.
2020] CONGRESSIONAL OVERSPEECH 571
creation of a seven-member select committee, appointed by the vice
president, to investigate the munitions industry and the role of profit in war-
making.
289
The Roosevelt administration announced support for the investigation, at
least partly because it anticipated that the committee would generate negative
publicity for a number of industrialists who were staunch New Deal
opponents. It also assumed that the special committee would be chaired by
Morris Sheppard, a Democrat from Texas and member of the Military Affairs
Committee.
290
When the measure came to the floor, Nye, Vandenberg, and
several other pacifist senators effectively began a filibuster, speaking in favor
of pacifist measures and thereby holding up the passage of a revenue bill.
Finally, Pat Harrison (D-MS), the chairman of the Finance Committee,
agreed to support the immediate adoption of the Nye-Vandenberg resolution
in exchange for a chance to vote on the revenue bill. The resolution
accordingly passed without a recorded vote and with no senator voicing
opposition.
291
Vice President John Nance Garner asked Nye and Vandenberg to suggest
four Democrats and three Republicans to make up the committee, and he
accepted their recommendations (which included themselves).
292
Crucially,
Garner also allowed the committee to select its own chair, presumably on the
impression that one of the majority Democrats would be chosen. Instead, the
committee unanimously chose Nye.
293
Secretary of State Cordell Hull was
outraged by the choice—even in his memoirs, written over a decade later, the
sense of frustration that this “isolationist of the deepest dye” was chosen
comes through clearly.
294
He described it as a “blunder of major
proportions” and insisted that, “[h]ad I dreamed that an isolationist
Republican would be appointed I promptly would have opposed it, but I
expected that a member of the majority party would be named under the usual
practice and that he would keep the investigation within legitimate and
reasonable bounds . . . .”
295
At Detzer’s suggestion, Nye hired Stephen Raushenbush as chief
investigator.
296
Raushenbush was the son of a prominent Social Gospel
minister and was himself inclined to believe the “merchants of death”
thesis.
297
(The staff that Raushenbush assembled briefly included Alger
Hiss, on loan from Jerome Frank’s staff at the Agricultural Adjustment
Administration.)
298
As the behind-the-scenes investigation ramped up in the
summer of 1934, major players already began taking their cases to the press.
289. S. Res. 206, 73d Cong. (1934) (enacted).
290. C
OULTER, supra note 281, at 24–25.
291. W
AYNE S. COLE, ROOSEVELT AND THE ISOLATIONISTS, 1932–45, at 145–46 (1983).
292. C
OULTER, supra note 281, at 26.
293. Id. at 28.
294. 1 C
ORDELL HULL, THE MEMOIRS OF CORDELL HULL 398 (1948).
295. Id.
296. D
ETZER, supra note 281, at 164–68.
297. C
OULTER, supra note 281, at 8–9, 29–30.
298. Id. at 30–31; WAYNE S. COLE, SENATOR GERALD P. NYE AND AMERICAN FOREIGN
RELATIONS 73 (1962).
572 FORDHAM LAW REVIEW [Vol. 89
The New York Times reprinted excerpts from a letter in which Irénée du Pont,
the former president and then vice chairman of the board of DuPont, the
largest munitions manufacturer in the United States, insisted that the attack
on armaments manufacturers was led by a “subservient force instigated by
the Third International and allied interests to weaken the defensive powers
of capitalistic countries.”
299
A few weeks later, Nye told the Times that
munitions makers were trying to sabotage the investigation, but it would not
only proceed as planned, it would reveal “startling facts” to the American
public.
300
Roosevelt was thrilled with the discomfort being caused the du
Ponts, who were among the founders and chief funders of the American
Liberty League, a conservative anti–New Deal group.
301
So pleased was
FDR with Nye’s investigation that, when the president made a campaign
swing through North Dakota in August 1934, he invited the Republican Nye
to introduce him and Eleanor Roosevelt before a crowd of 35,000 people.
302
Even before they opened, the Nye committee hearings were getting
breathless previews in the press. A multipage spread in The Washington Post
began, “What promises to be the most comprehensive and revealing inquiry
ever conducted into the business of making and selling death-dealing
machines and implements—and, also, one of the Senate’s most sensational
investigations—will get underway this week . . . .”
303
The Post noted that
such industrial titans as the du Pont family and John Pierpont Morgan were
expected to be witnesses and that a “shadowy” European arms dealer named
Sir Basil Zaharoff would feature in the inquiry as well.
304
With advance
billing like that, it is perhaps unsurprising that, when the hearings opened
later that week, NBC radio microphones were prominently arrayed on the
witness table.
305
The committee from the beginning made use of props to
send a message both about the thoroughness of its investigation and about
the import of what was uncovered: the Times report on the first day of the
hearings noted that “[s]cores of letters and other documents taken from the
files of [munitions manufacturers] were piled high on the big table behind
which . . . members of the committee sat. These were said by Senator Nye
to be ‘only samples’ of what is to follow in the weeks ahead.”
306
The
committee also clearly understood that it had a compelling figure in Zaharoff,
who seems to have served as a middleman for deals between American
299. Du Pont Holds Reds Inspire Arms Fight, N.Y. TIMES, July 8, 1934, at 21 (available
through ProQuest Historical Newspapers).
300. Eighty Agents Push Inquiry on Munitions, N.Y.
TIMES, July 26, 1934, at 11 (available
through ProQuest Historical Newspapers).
301. See Frederick Rudolph, The American Liberty League, 1934–1940, 56 A
M. HIST. REV.
19, 20–21 (1950).
302. C
OULTER, supra note 281, at 33.
303. Franklyn Waltman Jr., Senate Investigators Train Their Big Guns on Munitions
Makers, W
ASH. POST, Sept. 2, 1934, at B1 (available through ProQuest Historical
Newspapers).
304. Id.
305. The microphones are visible in the picture accompanying Submarine Sales Split by
American and British Firms, N.Y.
TIMES, Sept. 5, 1934, at 1.
306. Id.
2020] CONGRESSIONAL OVERSPEECH 573
munitions makers and European clients. The leading historical account of
the Munitions Inquiry mentions Zaharoff on only a single page,
307
but the
press at the time couldn’t get enough of the octogenarian polyglot “man of
mystery” who “looks like Cardinal Richelieu” and whose national
allegiances appeared to be both indeterminate and constantly in flux.
308
The
Times devoted a substantial percentage of its lengthy write-up of the first day
of the hearings to Zaharoff, including reprinting his photograph and two
letters by him that had been introduced into evidence.
309
Nor was the Times
an outlier in its Zaharoff mania:
310
the committee had found a vivid character
to help focus public attention on its work.
A big part of the committee’s task in the subsequent months would be to
take the public interest generated by a singular compelling character and turn
it into interest in the committee’s project as a whole. Nye was well-suited to
the task: before entering politics, he had spent fifteen years as a newspaper
editor (which was also his father’s career),
311
on top of which he had a
reputation as “an unusually effective [public] speaker.”
312
He was thus well-
suited to both direct and perform in the committee’s overspeech. The
sensational hits were to keep coming in the hearings’ early days, as members
of the du Pont family testified,
313
and King George V was named—much to
London’s dismay—as a promoter of British arms sales abroad.
314
As the
correspondent for The Christian Century noted, the press corps turned out
and remained out in full force, sending “up-to-the-minute” dispatches by
telegraph back to their outlets.
315
At the conclusion of the first set of
307. COULTER, supra note 281, at 38.
308. Submarine Sales Split by American and British Firms, supra note 305.
309. Id.
310. See, e.g., Arms Inquiry Links Zaharoff with U.S. Firm, N.Y.
HERALD TRIB., Sept. 2,
1934, at 3; Osgood Nichols, Mystery Man Leads World to War, WASH. POST, Sept. 9, 1934,
at SM18 (available through ProQuest Historical Newspapers); Submarine Grip Told:
Zaharoff Linked to Monopoly, L.A.
TIMES, Sept. 5, 1934, at 1 (available through ProQuest
Historical Newspapers); P. W. Wilson, Zaharoff Thrust into the Spotlight, N.Y. TIMES, Sept.
9, 1934, at XX2 (available through ProQuest Historical Newspapers). Two years later,
fascination remained. See Zaharoff Is Dead; Still a ‘Mystery,’ N.Y.
TIMES, Nov. 28, 1936, at
1 (available through ProQuest Historical Newspapers). For a more recent evaluation, see
Mike Dash, The Mysterious Mr. Zedzed: The Wickedest Man in the World, S
MITHSONIAN
MAG. (Feb. 16, 2012), https://www.smithsonianmag.com/history/the-mysterious-mr-zedzed-
the-wickedest-man-in-the-world-97435790/ [https://perma.cc/8LE8-PC32].
311. See C
OLE, supra note 298, at 19–41.
312. Id. at 76.
313. C
OULTER, supra note 281, at 42–45.
314. See Robert C. Albright, King of England Gave Arms Aid, Senators Hear, W
ASH. POST,
Sept. 8, 1934, at 1 (available through ProQuest Historical Newspapers); British Indignant at
Linking of King, N.Y.
TIMES, Sept. 8, 1934, at 4 (available through ProQuest Historical
Newspapers).
315. Russell J. Clinchy, The Plight of the Du Ponts, C
HRISTIAN CENTURY, Oct. 3, 1934, at
1234 (“The visitor to the senate caucus room senses at once that this is an investigation which
has drama and reality about it. There have not been so many newspaper men and women
gathered around the press tables, which reach in all directions, since J.P. Morgan was
testifying before the finance committee. The best and most alert of the newspaper corps are
here . . . . The foreign correspondents are present . . . . Every minute or so a hand, filled with
574 FORDHAM LAW REVIEW [Vol. 89
hearings, The New Republic wrote that, “[i]n this generation, there has been
nothing else like the Senate munitions inquiry. Here are people talking in
public, for the first time, about international affairs as they are.”
316
The
veracity of that claim was open to debate—Secretary of State Hull, for one,
decried the hearings as “propaganda” and claimed that they “gave the
American people a wholly erroneous view as to the reasons why we had gone
to war in 1917.”
317
But as both The New Republic and Hull had to
acknowledge, the hearings were affecting the American people. For the
former, it was the embodied nature of the testimony that was most
compelling: “Here they sit, in the flesh, the merchants of death.”
318
The
Christian Century, too, focused on the physical appearance of the munitions
executives:
From reading the stories one expects to meet a cordon of rampant jingoists,
breathing blood and thunder, veritable Wotans of might and power who
hold nations within their grasp and start wars on a moment’s notice. One
is disturbed when one sees instead men who could pass the plate at any
church service without anyone looking at them twice.
319
After the first set of hearings wrapped up, Nye and Raushenbush consulted
on how they might maintain public interest. One set of strategies involved
enlisting allies: the Women’s International League for Peace and Freedom
(of which Detzer was the executive secretary) “used the committee’s findings
to mobilize peace-minded voters.”
320
Another set of strategies involved
taking advantage of Nye’s own oratorical abilities: his announcement of an
extensive speaking tour in the fall of 1934 (including a national radio
address) was itself covered in the press.
321
When the hearings resumed in December, the du Ponts were back in the
hot seats.
322
The committee produced evidence of the outsized profits that
many American corporations and individuals had made during the First
World War,
323
evidence that both grabbed headlines and prompted a
vigorous response from the du Pont family.
324
At the same time, the Times
reported that the hearings had “exciting moments” when munitions company
executives were presented with correspondence from their own files and
yellow paper, shoots up, and a telegraph boy races for it. They are handling up-to-the-minute
news.”).
316. Jonathan Mitchell, Mass Murderers, in Person, N
EW REPUBLIC, Sept. 26, 1934, at 178.
317. 1 H
ULL, supra note 294, at 398, 399.
318. Mitchell, supra note 316, at 178.
319. Clinchy, supra note 315, at 1234.
320. C
OULTER, supra note 281, at 48.
321. Nye Plans Wide Tour for Munitions Talks, N.Y.
TIMES, Sept. 30, 1934, at 24 (available
through ProQuest Historical Newspapers).
322. See C
OULTER, supra note 281, at 51–65.
323. War Profits up to 800% Shown at Senate Inquiry; 181 Had Million Incomes, N.Y.
TIMES, Dec. 14, 1934, at 1 (available through ProQuest Historical Newspapers).
324. Senators’ Charges of 39,231% Profit Stir Du Ponts’ Ire, N.Y. TIMES, Dec. 15, 1934,
at 1 (available through ProQuest Historical Newspapers).
2020] CONGRESSIONAL OVERSPEECH 575
asked to explain it.
325
The overall impression produced by the hearings was
a sense that, even if the munitions makers had not deliberately maneuvered
the nation into World War I, at least “money and profit dominated their
thinking about war.”
326
Around the same time, the focus of the inquiry began to broaden to include
not simply the munitions manufacturers and their surrounding private
infrastructure but also American government officials who had industry
ties.
327
In other words, the committee began groping its way toward
identifying what would later be termed the military-industrial complex.
328
(One can see this in The Christian Century’s account of the first round of
hearings, which, after noting the shockingly ordinary appearance of the
munitions makers,
329
pivoted to claiming that their very ordinariness
demonstrated the need for deeper structural reform of both capitalism and the
political economy of war.)
330
This turn made the committee’s work less
hospitable to the Roosevelt administration than when it was simply going
after industrialist opponents of the New Deal.
331
FDR accordingly tried to
co-opt the committee’s work by naming an executive-branch-based
commission to inquire into taking the profit out of war.
332
This new
commission was to be chaired by Wall Street financier Bernard Baruch,
whose conclusions were almost certain to be less sweeping than Nye’s.
333
Nye and Vandenberg immediately went public, chastising the president for
attempting to undermine the congressional committee’s work.
334
Nye
quipped to the press that, “[w]hen I view, in part, the personnel of the [Baruch
commission], I cannot but think how unfortunate it is that [notorious gangster
325. Sought to Prevent Arms Ban in Chaco, N.Y. TIMES, Dec. 7, 1934, at 6 (available
through ProQuest Historical Newspapers).
326. C
OULTER, supra note 281, at 59.
327. See, e.g., Nye Hears Army and Navy Backed Powder to Japan, N.Y.
TIMES, Dec. 12,
1934, at 1 (available through ProQuest Historical Newspapers); ‘Winking’ at Graft in Arms
Declared Once Our Policy, N.Y.
TIMES, Dec. 11, 1934, at 1 (available through ProQuest
Historical Newspapers).
328. See M
ARIAH ZEISBERG, WAR POWERS: THE POLITICS OF CONSTITUTIONAL AUTHORITY
190 (2013) (“One of the most important positions [the Nye committee] developed concerned
the problem of military-industrial links.”); Paul A. C. Koistinen, The “Industrial-Military
Complex” in Historical Perspective: The InterWar Years, 56 J.
AM. HIST. 819, 831 (1970)
(“In a fragmentary manner, the Committee disclosed the dynamics of an emerging ‘industrial-
military complex.’”).
329. See supra text accompanying note 319.
330. Clinchy, supra note 315, at 1235 (“This munitions investigation is much like the
glimpse a surgeon gets when he operates for a specific malady. He not only reaches that
malady, but he is able to discover whether or not it is due to deeper causes. We are now
discovering in this operation that there are much graver conditions with which we must not
fail to deal.”).
331. See C
OULTER, supra note 281, at 60 (noting that the investigation was increasingly
“becoming a liability for the president”).
332. C
OLE, supra note 291, at 152.
333. Indeed, Baruch had recently spoken against attempting to eliminate the profit motive
for warmaking. War Profits, N
EWS-WEEK, Dec. 22, 1934, at 1; see also COLE, supra note 298,
at 82.
334. President’s Move Stirs Committee, N.Y.
TIMES, Dec. 13, 1934, at 1 (available through
ProQuest Historical Newspapers).
576 FORDHAM LAW REVIEW [Vol. 89
John] Dillinger is dead. He was the logical person to write anti-crime
laws.”
335
Nye’s allies in the press likewise recognized and decried
Roosevelt’s gambit as an attempt to sideline the Senate investigation. The
Nation, noting the “startling disclosures” made by the Nye committee,
insisted that “[i]f public opinion has been even partially awakened to the
menace of the arms traffic, the credit belongs almost exclusively to Senator
Nye and his committee.”
336
The Baruch investigation, it argued, was a
wholly inadequate substitute.
337
The committee continued its work with the
Senate’s support: a month after Roosevelt announced the Baruch
commission, the Senate appropriated an additional $50,000 for the Nye
committee,
338
and the Nye committee published a preliminary report and its
first full report in the spring and early summer of 1935.
339
As its split with
the administration developed, Roosevelt increasingly publicly branded the
committee as “isolationist”
340
and privately fumed that it was intended to
embarrass his administration.
341
“Isolationist” was a loaded term, but the broader fight in American foreign
policy was over whether the United States would remain neutral in what
seemed to be the increasingly likely event of another large-scale international
conflagration.
342
In this dispute, the Nye committee was slowly helping pro-
neutrality forces gain the upper hand against opposition from the Roosevelt
administration, which wanted to maintain freedom to set its own,
significantly more internationalist, course. Although neutrality remained
within the jurisdiction of the Foreign Relations Committee, Nye and the other
members of his committee were among its leading proponents. In April and
May 1935, Nye and his committee colleague Bennett Clark (D-MO)
introduced or cosponsored four resolutions on various aspects of neutrality
(including, inter alia, withholding passports from Americans traveling in war
zones or on belligerent ships, prohibiting private loans and credit to
belligerents, and prohibiting the export of all American armaments to
belligerents).
343
The Roosevelt administration lobbied the Foreign Relations
335. Id.
336. Nationalize the Arms Industry!, 139 N
ATION 726, 726 (1934); see also Roosevelt and
the Munitions Inquiry, N
EW REPUBLIC, Dec. 26, 1934, at 178.
337. Nationalize the Arms Industry!, supra note 336. Subsequently, the Baruch
commission bore out this prediction: after FDR’s initial meeting with the group at the White
House, “[i]t is not evident that the Baruch committee ever met again.” J
ORDAN A. SCHWARZ,
THE SPECULATOR: BERNARD M. BARUCH IN WASHINGTON, 1917–1965, at 339 (1981).
338. C
OULTER, supra note 281, at 61.
339. Id. at 84, 94.
340. Id. at 63. In his memoirs, Hull repeatedly uses the “isolationist” epithet to refer to the
Nye committee. See, e.g., 1 H
ULL, supra note 294, at 398, 399, 400, 404, 406, etc.
341. C
OULTER, supra note 281, at 79.
342. The outlines of such a conflict came increasingly into view with the Italian invasion
of Ethiopia in 1935, the outbreak of the Spanish Civil War in 1936, and the Japanese invasion
of China in 1937.
343. S. 2998, 74th Cong. (1935) (introduced by Senators Pope, Nye, Bone, George, and
Clark; reported out of S. Foreign Rels. Comm.); S.J. Res. 120, 74th Cong. (1935) (introduced
by Senators Clark and Nye; referred to S. Foreign Rels. Comm.); S.J. Res. 99, 74th Cong.
(1935) (introduced by Senators Nye and Clark; reported out of S. Foreign Rels. Comm.); S.J.
2020] CONGRESSIONAL OVERSPEECH 577
Committee against these proposals, offering instead its own alternative that
would give the president discretion to decide whether (and to whom) to
prohibit arms shipments.
344
The Foreign Relations Committee reported out
a “compromise” resolution that was, in fact, significantly closer to the various
Nye-Clark versions than to the administration’s version.
345
As one historian
has noted, the compromise “resolution was intended partly to appease public
opinion on the issue but probably both [Foreign Relations Committee
Chairman] Pittman and the administration hoped Congress would adjourn
without adopting it.”
346
Nye and his colleagues filibustered to ensure that
would not happen, and eventually the resolution passed the Senate by
unanimous consent. The House almost immediately passed it as well—but
added an administration sponsored amendment that sunset the arms embargo
provisions in six months. Nye reluctantly signed on to the amendment, and
the bill went to FDR, who reluctantly signed it, fearing that he could not win
a battle with Congress over the issue.
347
The New York Times’s Arthur Krock
noted that Nye and his colleagues “did not get all of [what they wanted], but
they got a good deal” and that the end result “tie[d] the hands of the executive
department.”
348
Secretary of State Hull was furious: “[t]he Nye Committee
hearings furnished the isolationist springboard for the first Neutrality Act”
by “arous[ing] an isolationist sentiment that was to tie the hands of the
Administration . . . . [i]t confused the minds of our own people.”
349
Hull
would have preferred no neutrality legislation at all,
350
but with “[p]ublic
opinion . . . swayed . . . by the spectacular conclusions of the Nye
Committee,” as well as the specter of impending war, “it was now evident
that the movement in Congress, spurred by isolationist agitation, was too
strong.”
351
At least on the view of Hull and other administration allies, then,
the Nye committee had moved public opinion, which in turn had shaped
congressional views, to such an extent that the president was essentially
forced to sign legislation tying his own hands.
352
Res. 100, 74th Cong. (1935) (introduced by Senators Nye and Clark; reported out of S. Foreign
Rels. Comm.); see also COLE, supra note 298, at 101–02.
344. C
OLE, supra note 298, at 103.
345. S.J. Res. 173, 74th Cong. (1935) (reported out of S. Foreign Rels. Comm.). For a
comparison of the various resolutions, see C
OLE, supra note 298, at 105–06.
346. C
OLE, supra note 298, at 105.
347. Neutrality Act, ch. 837, 49 Stat. 1081 (1935); see also C
OLE, supra note 298, at 106.
348. Arthur Krock, In Washington: Neutrality Resolution Viewed as Administration
Handicap, N.Y.
TIMES, Aug. 24, 1935, at 14 (available through ProQuest Historical
Newspapers).
349. 1 H
ULL, supra note 294, at 404.
350. Id. at 406.
351. Id. at 410.
352. A number of historians have concluded that Hull was correct in this, even as they
disagree about what precisely FDR’s true preferences were. Compare, e.g., C
OLE, supra note
291, at 170 (“Given the prevailing public attitudes and political patterns, President Roosevelt
and Secretary Hull would have preferred no neutrality legislation except for the registration
and licensing of munitions makers and shippers. Without the Nye committee, Congress
probably would not have adopted neutrality legislation.”), with R
OBERT A. DIVINE, THE
ILLUSION OF NEUTRALITY 121 (1962) (“[Roosevelt’s] real compromise in 1935 was not in
accepting neutrality legislation but in accepting the mandatory features that the Nye group
578 FORDHAM LAW REVIEW [Vol. 89
Meanwhile, the committee was continuing to hold hearings, including
asking Baruch to testify about the administration’s position on wartime
profiteering and then—in a move that it is hard to see as anything other than
payback for the Baruch commission—demanding his tax returns and
information about his investments to see if he had any conflicts of interest.
353
Beginning in January 1936, Nye began simultaneously pushing for new,
permanent neutrality legislation and presiding over hearings probing the
wartime role of Wall Street bankers.
354
The public was especially interested
in John Pierpont Morgan’s testimony: the hearings were moved to a larger
room to accommodate the demand for seats,
355
but even so, “[s]cores of
latecomers were turned back by the doorkeepers.”
356
Competing props were
used to demonstrate both the committee’s and the bankers’ seriousness: the
committee had before it “more than 2,000,000 cablegrams, telegrams, letters
and other documents,”
357
while Morgan and his associates brought “more
than fifty giant-sized ledgers . . . for reference.”
358
Morgan attempted to
steer the hearings toward his preferred narrative with a lengthy opening
statement—which the Times reprinted in full—but was “stunned” when
Senator Clark accused him of reading a “stump speech” and said that it would
not be allowed to happen again.
359
The Times’s report on the first day of
Morgan’s testimony began on the front page and then took the entirety of
another page.
360
The story previewing his testimony from the previous day’s
paper ended by noting that Nye and Clark had just introduced a new
neutrality bill.
361
Time magazine made the same connection, but rather more
disdainfully, noting that “Nye, Clark and other members of the Congressional
peace-by-isolation bloc . . . planned to bring the nation’s peace passion once
more to white heat and whoop Neutrality through Congress by haling J.P.
Morgan & Co. before their Senate Munitions Investigating Committee.”
362
Once again, Nye and his colleagues’ show was effective. The following
month, Roosevelt signed the 1936 Neutrality Act,
363
which extended the
mandatory embargo on arms sales to belligerents until May 1937 and banned
loans to belligerents.
364
In other words, it extended the feature of the 1935
forced upon him. Roosevelt desired a flexible policy which would leave him free, not
necessarily to co-operate against aggressors as the State Department advocated, but to decide
in each situation the most effective course of action for the nation to pursue.”).
353. S
CHWARZ, supra note 337, at 339–40.
354. C
OLE, supra note 298, at 107 (neutrality legislation push); COULTER, supra note 281,
at 108 (Wall Street hearings).
355. Morgan Defends Financing in War, N.Y.
TIMES, Jan. 7, 1936, at 8 (available through
ProQuest Historical Newspapers).
356. Morgan Testifies as Nye Bares Data on War Loan Curbs, N.Y.
TIMES, Jan. 8, 1936,
at 1 (available through ProQuest Historical Newspapers).
357. Id.
358. Morgan Defends Financing in War, supra note 355.
359. Morgan Testifies as Nye Bares Data on War Loan Curbs, supra note 356.
360. Id.
361. Morgan Defends Financing in War, supra note 355.
362. Peace Proposal, T
IME, Jan. 13, 1936, at 13.
363. ch. 106, 49 Stat. 1152.
364. C
OLE, supra note 298, at 110.
2020] CONGRESSIONAL OVERSPEECH 579
Act that FDR most disliked—the nondiscretionary arms embargo—and it
added to it a nondiscretionary ban on loans. As the Times noted, the 1936
Act, like its predecessor, was a compromise:
No secret has been made of the fact that the new act is mutually
unsatisfactory alike to the President and other groups. Mr. Roosevelt would
like wider discretion given the President in administering the embargo
provisions, while the extremist peace advocates have served notice they
would continue work for a law that would lay down a blanket embargo
against any and all belligerent countries.
365
But once again, while neither side got everything it wanted, Nye and Clark
came away having substantially limited the president’s options.
366
Right around the time that Nye and his allies were winning their second
Neutrality Act battle, the committee was also sowing the seeds of its own
precipitous downfall. On January 15, 1936, Clark introduced evidence into
the committee record that President Woodrow Wilson (at this point, deceased
for over a decade) had known by 1917 of the existence of “secret treaties”
between Britain, France, and Russia creating postwar spheres of influence in
the eastern Mediterranean. Wilson had denied that he knew of the treaties
before the 1919 Paris Peace Conference.
367
After hearing Clark’s evidence,
Nye remarked that “both the President and Secretary [of State Robert]
Lansing falsified concerning this matter.”
368
The reaction was explosive,
with Nye’s charge that Wilson had “falsified” leading nearly every major
newspaper.
369
The reaction by a number of Democratic senators to the attack
on Wilson was swift. Most dramatically, Senator Carter Glass (D-VA), who
had been Wilson’s secretary of the treasury, took to the Senate floor and
“opened wide his noteworthy vocabulary.”
370
In remarks that were reprinted
in their entirety in the Times, Glass thundered:
If it were permissible in the Senate to say that any man who would asperse
the integrity and veracity of Woodrow Wilson is a coward, if it were
365. Roosevelt Renews Plea Against Profits in War; He Signs Neutrality Bill, N.Y. TIMES,
Mar. 1, 1936, at 1 (available through ProQuest Historical Newspapers).
366. See C
OULTER, supra note 281, at 124–25 (“[T]he 1936 Neutrality Act encompassed
the three main points proposed by Nye and Clark in their resolutions of 1935. Civilian travel
on belligerent’s [sic] ships, arms shipments to belligerents, and loans to belligerents were all
strictly regulated . . . . [T]he 1936 act represented a victory for Nye and Clark.”).
367. Id. at 115; C
OLE, supra note 291, at 157.
368. C
OULTER, supra note 281, at 115.
369. See, e.g., Nye States Wilson Falsified on Pacts, N.Y.
TIMES, Jan. 16, 1936, at 1
(available through ProQuest Historical Newspapers); Reveal Wilson Knew of Secret Treaties,
D
AILY BOS. GLOBE, Jan. 16, 1936, at 1 (available through ProQuest Historical Newspapers);
Says Wilson Falsified on War Record, H
ARTFORD COURANT, Jan. 16, 1936, at 1 (available
through ProQuest Historical Newspapers); War Deals Secrecy Hit, L.A.
TIMES, Jan. 16, 1936,
at 3 (available through ProQuest Historical Newspapers); Wilson, Lansing Knew of Pacts,
Inquiry Shows, C
HI. DAILY TRIB., Jan. 16, 1936, at 7 (available through ProQuest Historical
Newspapers).
370. Turner Catledge, Glass Assails Nye on Wilson Charge; May Block Inquiry, N.Y.
TIMES, Jan. 18, 1936, at 1 (available through ProQuest Historical Newspapers).
580 FORDHAM LAW REVIEW [Vol. 89
permissible to say that his charge is not only malicious but positively
mendacious, that I would be glad to say [it] here and elsewhere . . . .
371
In the course of his speech, Glass pounded the desk with such force that his
knuckles began to bleed, a fact that was breathlessly reported.
372
The committee never recovered from the backlash to its attack on Wilson.
It held eight more days of hearings, focused on “less sensational topics . . .
that produced no confrontational episodes.”
373
In June of 1936, it released
its final reports (seven in all)
374
and wrapped up its business. But even so,
the committee continued to exert significant influence. Between July and
December of 1936, Nye went on a thirty-eight-state speaking tour advocating
neutrality, emphasizing many of the same themes the committee had
emphasized.
375
In January 1937, he gave a nationwide radio broadcast on
the topic.
376
And on May 1 of that year, Roosevelt signed the Neutrality Act
of 1937,
377
which made permanent the mandatory embargoes on both
armaments and loans to belligerents, as well as the ban on travel by
Americans on belligerent ships. It also gave the president two-year
discretionary authority to require “cash-and-carry” for the sale of non-
embargoed goods to belligerents.
378
Nye himself voted against the conference report on the 1937 Act, on the
grounds that it did not go far enough.
379
But in his 1944 valedictory address,
having lost his reelection campaign, Nye claimed the Neutrality Acts as the
great success of the Senate Munitions Committee investigation.
380
For Nye,
even though the Neutrality Acts were ultimately repealed (and “sabotaged”
by the White House before that), they nevertheless succeeded in keeping the
United States out of World War II “for more than 2 years,” despite powerful
forces, including within the Roosevelt administration, doing their best to drag
the country into the war.
381
Secretary of State Hull, as we have seen, agreed
371. Text of Senator Glass’s Speech in Defense of Wilson, N.Y. TIMES, Jan. 18, 1936, at 4
(available through ProQuest Historical Newspapers).
372. See, e.g., Joseph Alsop Jr., Glass Lashes at Nye for His Wilson Attack, N.Y.
HERALD
TRIB., Jan. 18, 1936, at 1A (available through ProQuest Historical Newspapers); Felix Bruner,
Southerner Shakes with Rage as He Defends Chief in Senate, W
ASH. POST, Jan. 18, 1936, at 1
(available through ProQuest Historical Newspapers); Catledge, supra note 370; Glass Calls
Nye “Coward”: Hammers Desk Till Hand Bleeds as He Defends Wilson from Assailants,
D
AILY BOS. GLOBE, Jan. 18, 1936, at 1 (available through ProQuest Historical Newspapers);
Nye Denounced as Coward for Wilson Attack, C
HI. DAILY TRIB., Jan. 18, 1936, at 1 (available
through ProQuest Historical Newspapers).
373. C
OULTER, supra note 281, at 119.
374. Id. at 129, 132.
375. C
OLE, supra note 298, at 111.
376. Id. at 115.
377. ch. 146, 50 Stat. 121 (1937).
378. C
OLE, supra note 298, at 118.
379. Id.
380. 90 C
ONG. REC. 9686 (1944) (“[O]ne immediate result of that investigation was the
enactment of the neutrality law.”).
381. Id. at 9686–87.
2020] CONGRESSIONAL OVERSPEECH 581
with Nye’s descriptive claim,
382
as have historians of the period.
383
Of
course, historians have also agreed with Nye that Roosevelt’s compliance
with the Acts was only partial.
384
Nevertheless, there is widespread
agreement that the isolationist bloc in Congress hemmed Roosevelt in and
that the Nye committee served as a focal point for that bloc.
Moreover, the way in which the committee served as a focal point was by
making use of overspeech. The newspaper editor turned Senator Nye
ensured from the beginning that the hearings would be communicative, going
out of his way to cultivate newspaper and radio coverage throughout the
committee’s lifespan. He made compelling use of actors, whether by
invoking distant and mysterious figures like Sir Basil Zaharoff or by haling
in and grilling commercial titans like the du Ponts or J. P. Morgan. When a
witness like Morgan attempted to seize control of the hearings’ script, the
members of the committee quickly insisted on reasserting control. The
members even used props, as when they piled up documents on the hearing
room tables to convey a sense of overwhelming evidence. Moreover, the
hearings were deeply divisive, although in ways that cut across party lines.
In particular, by helping to deepen preexisting cleavages between
internationalists and isolationists, the hearings sharpened the terms of the
debate and helped push more Americans into the latter camp. And the
cumulative effect of all of this was a change in the public mood, one that—
as even Secretary Hull realized much to his chagrin—filtered back to
Congress and required FDR to deal with the isolationist bloc, ultimately by
agreeing to a series of Neutrality Acts that were far more constraining than
he would have liked.
B. McCarthy and the Army-McCarthy Hearings, 1950–1954
Alger Hiss, who had played a small role in the Nye committee,
385
was to
play a somewhat larger one in the rise of Senator Joseph McCarthy (R-WI)
as a national force. In the aftermath of the allied victory in World War II, the
advent of the Cold War brought with it the Second Red Scare, the hunt for
Communist infiltration into American government and society that was, for
a time, synonymous with McCarthy’s name. Hiss, who in 1946 had become
president of the Carnegie Endowment for International Peace, was identified
as a Communist by Whittaker Chambers before the House Committee on Un-
American Activities in 1948. Chambers subsequently produced evidence
that, not only had Hiss been a Communist, he had also spied for the Soviet
Union in the 1930s. Hiss’s subsequent denials before a federal grand jury
led to his indictment for perjury, the statute of limitations on espionage
having run. After a hung jury in his first trial, he was convicted in January
382. See supra text accompanying notes 349–51.
383. See, e.g., COLE, supra note 291, at 231; COLE, supra note 298, at 101; ZEISBERG, supra
note 328, at 85–87, 185, 211, 250; John C. Donovan, Congressional Isolationists and the
Roosevelt Foreign Policy, 3 W
ORLD POL. 299, 302–03 (1951).
384. ZEISBERG, supra note 328, at 62–63.
385. See supra text accompanying note 298.
582 FORDHAM LAW REVIEW [Vol. 89
1950.
386
The previous year, the Soviets had successfully tested an atomic
bomb for the first time, and the Communists had taken over China. To an
American public trying to figure out how the Cold War could be going so
awry, espionage seemed like an obvious answer, and revelations of espionage
by Hiss—and, in 1950, by Klaus Fuchs, Julius Rosenberg, and others—
provided enough evidence to make the thesis compelling. In the years to
come, McCarthy would make repeated use of overspeech, in both effective
and ineffective ways, to put his version of this thesis before the American
people. In the end, it would also be the effective use of overspeech by his
opponents that would bring his career crashing down.
Just over two weeks after Hiss’s conviction, McCarthy, a freshman
Republican senator, was set to give a speech to the Ohio County Women’s
Republican Club in Wheeling, West Virginia. He was not new to Red-
baiting—it had been a significant component of his 1946 campaign
387
—but
he also was not yet particularly known for it. The Wheeling speech would
change that. It was there that he infamously held up a piece of paper and
claimed to have a list of 205 “members of the Communist Party and members
of a spy ring” working in the State Department.
388
The exact numbers
changed over his next few speeches, but McCarthy’s press savviness
389
meant that the charges got increasing attention in subsequent days. Two days
after the Wheeling speech, the New York Times ran an article on McCarthy’s
claims.
390
The extent of McCarthy’s success in driving the national
conversation was evident two days later when the Times carried another story
noting that the State Department had asked McCarthy to release the names
of the alleged subversives.
391
Five days after that, a Times headline read,
“Broader Loyalty Tests Proposed for U.S. Jobs,” crediting McCarthy’s
allegations with “reviv[ing] some discussion in Washington” about
broadening the scope of loyalty investigations.
392
Eleven days after the Wheeling speech, McCarthy took to the Senate floor
for nearly eight hours to speak on the dangers of Communist infiltration of
the State Department. Again, the media paid attention, with the speech
making the front page of The Washington Post.
393
Indeed, the floor speech
was enough to draw the attention of the Times’s editorial board, which wrote
386. DAVID M. OSHINSKY, A CONSPIRACY SO IMMENSE: THE WORLD OF JOE MCCARTHY
97–100, 104 (rev. ed. 2005).
387. See id. at 50.
388. Id. at 109.
389. See id. at 59 (noting McCarthy’s cultivation of the press from his first day in
Washington).
390. M’Carthy Insists Truman Oust Reds, N.Y.
TIMES, Feb. 12, 1950, at 5 (available
through ProQuest Historical Newspapers).
391. Jay Walz, Acheson Aide Asks ‘57 Reds’ Be Named, N.Y.
TIMES, Feb. 14, 1950, at 16
(available through ProQuest Historical Newspapers).
392. Cabell Phillips, Broader Loyalty Tests Proposed for U.S. Jobs, N.Y.
TIMES, Feb. 19,
1950, at E7 (available through ProQuest Historical Newspapers).
393. Still Gives No Names: McCarthy Says Red-Fronter Is White House Speech Writer,
W
ASH. POST, Feb. 21, 1950, at 1 (available through ProQuest Historical Newspapers); see
also Harold B. Hinton, M’Carthy Charges Spy for Russia Has a High State Department Post,
N.Y.
TIMES, Feb. 21, 1950, at 13 (available through ProQuest Historical Newspapers).
2020] CONGRESSIONAL OVERSPEECH 583
that McCarthy “has been giving a good imitation of a hit-and-run driver” by
engaging in a “campaign of indiscriminate character-assassination.”
394
But
by this point it was impossible to ignore McCarthy’s charges or brush them
aside. His overspeech pushed Senate leadership—which was then controlled
by the Democrats—to impanel a special subcommittee (albeit one packed
with Truman administration loyalists) to look into Communist subversion in
the State Department.
395
The subcommittee was chaired by Millard Tydings
(D-MD);
396
McCarthy participated as a witness, rather than as a member of
the subcommittee.
The first meeting of the Tydings committee was standing-room-only,
397
and McCarthy’s accusation that Dorothy Kenyon, a former U.S. delegate to
the United Nations Commission on the Status of Women, was affiliated with
a number of Communist front organizations received multiple columns
above the fold in the next day’s Times and Post.
398
The most sustained target
of McCarthy’s attack was Owen Lattimore, an Asia specialist at Johns
Hopkins and sometime outside adviser to the State Department,
399
whom
McCarthy described to the committee as “the top Russian agent” and Hiss’s
“boss.”
400
When Lattimore appeared before the Tydings committee—
represented by Abe Fortas—the room was “packed to capacity.”
401
Lattimore’s performance before the committee was effective, both defending
himself and attacking McCarthy’s methods.
402
Time magazine noted
approvingly that he “spoke with the smooth assurance of the experienced
lecturer and he had the crowd with him.”
403
Four members of the
subcommittee, including one Republican, all announced that they had looked
at Lattimore’s FBI file and found nothing in it to substantiate McCarthy’s
charge.
404
But McCarthy had another card to play: a prominent ex-
Communist of questionable truthfulness named Louis Budenz testified that
Lattimore was a member of a Communist cell.
405
McCarthy had sufficiently
hyped Budenz’s testimony
406
that the hearing room’s gallery was again
packed.
407
Suddenly, Time was not so sure: Budenz was “a man whose
394. Editorial, Mr. M’Carthy’s Campaign, N.Y. TIMES, Feb. 22, 1950, at 28 (available
through ProQuest Historical Newspapers).
395. O
SHINSKY, supra note 386, at 115.
396. Id. at 116.
397. Id. at 119.
398. Alfred Friendly, Former Woman Judge Linked to Communists Calls McCarthy a Liar,
W
ASH. POST, Mar. 9, 1950, at 1 (available through ProQuest Historical Newspapers); William
S. White, McCarthy Says Miss Kenyon Helped 28 Red Front Groups, N.Y.
TIMES, Mar. 9,
1950, at 1 (available through ProQuest Historical Newspapers).
399. O
SHINSKY, supra note 386, at 136–38, 144–53.
400. Id. at 136.
401. “A Fool or a Knave,” T
IME, Apr. 17, 1950, at 21.
402. O
SHINSKY, supra note 386, at 148.
403. “A Fool or a Knave,” supra note 401, at 21.
404. Id.
405. O
SHINSKY, supra note 386, at 149–50.
406. See, e.g., William S. White, Budenz Testimony Awaited Intently, N.Y.
TIMES, Apr. 20,
1950, at 3 (available through ProQuest Historical Newspapers).
407. O
SHINSKY, supra note 386, at 150.
584 FORDHAM LAW REVIEW [Vol. 89
testimony could not lightly be dismissed . . . . And so the matter stood:
Owen Lattimore had not been proved a Communist, but he had not proved
that he was not one.”
408
Nor was Time alone: the New York Times led with
Budenz’s accusations on the front page, continuing across all of page two,
409
and The Washington Post’s coverage was equally expansive.
410
Indeed, the
favorable publicity from the Budenz testimony was largely “responsible for
keeping [McCarthy] in business.”
411
In July 1950, the Tydings committee produced its report,
412
which was
almost entirely hostile to McCarthy. It flatly concluded that his accusations
of disloyalty in the State Department were “false” and “irresponsible” and
that they constituted a “fraud and a hoax perpetrated on the Senate of the
United States and the American people” and “perhaps the most nefarious
campaign of half-truths and untruth in the history of this Republic.”
413
Only
the Democrats on the committee signed the report.
414
The New Republic
turned to the language of popular entertainment to describe the subsequent
debate on the Senate floor: it was “as good a show as we have ever
watched.”
415
Indeed, the magazine noted Senator Tydings’s use of both
props and sound effects:
Tydings had a five-foot pointer and eight big charts of blow-up quotations
from McCarthy’s preposterous speeches. These were put up in turn on a
wooden frame for Senate inspection. Carried away by fury, real or
assumed, Tydings at one point put every ounce of energy into his arm and
brought his ruler down “whack” on one offending quotation. There was a
crack like a pistol shot. It seemed to this columnist that it wrote a
punctuation point to a chapter of hysteria such as America has rarely
known.
416
If Tydings’s gesture was a punctuation point, it was certainly not anything
like a full stop. The Senate voted to accept the Tydings committee’s report
on a straight party-line vote, and media accounts too were divided along party
lines.
417
Both McCarthy and his antagonists had used overspeech to real, and
divisive, effect.
By the middle of 1950, McCarthy was a political celebrity, routinely
gracing the covers of newsmagazines and the front pages of newspapers, and
having contributed “McCarthyism” to the political vernacular.
418
Polls
408. Of Cells & Onionskins, TIME, May 1, 1950, at 19.
409. William S. White, Lattimore Accused by Budenz as a Red; Backed by General, N.Y.
TIMES, Apr. 21, 1950, at 1 (available through ProQuest Historical Newspapers).
410. Alfred Friendly, Budenz Says Reds Told Him Lattimore Was a Communist; McCarthy
Defends Crusade, W
ASH. POST, Apr. 21, 1950, at 1 (available through ProQuest Historical
Newspapers).
411. O
SHINSKY, supra note 386, at 153.
412. S.
REP. NO. 81-2108 (1950).
413. Id. at 166–67.
414. Id. at 170.
415. Washington Wire, N
EW REPUBLIC, July 31, 1950, at 3.
416. Id. at 4.
417. See O
SHINSKY, supra note 386, at 171–72.
418. Id. at 158.
2020] CONGRESSIONAL OVERSPEECH 585
showed that significantly more Americans thought his charges were good for
the country than thought they were harmful.
419
And, although he was not up
for reelection until 1952, he was in high demand on the campaign trail.
420
He spent a great deal of time in Maryland in particular, waging a successful
underhanded campaign for Tydings’s opponent.
421
Overall, Democrats
maintained control of both congressional chambers, although Republicans
gained a significant number of seats in each.
The real shift would come two years later, when Republicans took control
of both chambers of Congress and the presidency, and McCarthy himself was
reelected. It was “common knowledge” that President Dwight Eisenhower
“despised” McCarthy,
422
but he refrained from criticizing the senator by
name on the campaign trail—a reticence that largely continued from the
White House. In the new Eighty-Second Congress, McCarthy was given the
chairmanship of the Committee on Government Operations, from which the
new majority leader, Robert Taft (R-OH), thought that McCarthy “can’t do
any harm.”
423
Taft was mistaken. McCarthy appointed himself chair of the
Permanent Subcommittee on Investigations and set out to make the most
aggressive possible use of its expansive oversight powers.
424
To help him
out, he hired a number of staffers, including Roy Cohn as chief counsel and
Robert F. Kennedy—whose father, Joseph, was a significant McCarthy
donor—as assistant to the general counsel.
425
Over the next nine months, McCarthy’s subcommittee would hold
hearings on alleged Communist subversion at the Voice of America, the
Overseas Library Program, the Government Printing Office, and
elsewhere.
426
McCarthy was careful to stage-manage the hearings. For
example, the VOA hearings, in February and March 1953, were televised to
an audience of “millions”
427
—but only after a week of closed hearings at
which McCarthy screened witnesses and “chose some, friendly or otherwise,
who he thought would most help his cause at open hearings before television
cameras.”
428
His subsequent hearings likewise generated significant media
attention, even as they uncovered almost no new facts.
429
McCarthy was
engaged in classic overspeech, using the tools of oversight for primarily
communicative and argumentative purposes. This did not go over well with
the three Democrats on the subcommittee: in July 1953, in a dispute over
419. Id.
420. See T
HOMAS C. REEVES, THE LIFE AND TIMES OF JOE MCCARTHY: A BIOGRAPHY 334–
46 (1982).
421. Id. at 335–43.
422. O
SHINSKY, supra note 386, at 234.
423. Id. at 251.
424. Id. at 251–52. On the Permanent Subcommittee on Investigations’ powers, see supra
notes 124–25 and accompanying text.
425. R
EEVES, supra note 420, at 462–65.
426. OSHINSKY, supra note 386, at 266–85, 326–28; REEVES, supra note 420, at 477–512.
427. O
SHINSKY, supra note 386, at 275.
428. R
OBERT SHOGAN, NO SENSE OF DECENCY: THE ARMY-MCCARTHY HEARINGS: A
DEMAGOGUE FALLS AND TELEVISION TAKES CHARGE OF AMERICAN POLITICS 79 (2009).
429. See, e.g.,
OSHINSKY, supra note 386, at 279.
586 FORDHAM LAW REVIEW [Vol. 89
McCarthy’s high-handed management of the subcommittee’s staffing and
procedures, they stormed out and began a boycott of subcommittee
proceedings that would last more than six months.
430
The result was to leave
subcommittee proceedings entirely in McCarthy’s hands, without even the
opportunity to engage in counter-overspeech.
But in the fall of 1953, McCarthy made what would prove to be a serious
miscalculation, when he went after the Army: although initially successful
in garnering attention, this line of inquiry would ultimately lead to his
downfall. McCarthy’s office had been receiving reports of Communist
infiltration of the Army Signal Corps at Fort Monmouth, New Jersey, for
months. The Signal Corps was an important locus of cutting-edge military
research and development and was therefore regarded as a highly sensitive
site.
431
In October, Roy Cohn got ahold of a list the FBI had compiled two
years earlier of thirty-five “possible security risks” at Fort Monmouth. He
and McCarthy regarded the information as so potentially explosive that the
senator cut short his honeymoon—a fact that was made much of in the
press
432
—to fly to New York and begin several weeks of hearings at the
Foley Square federal courthouse. The location for the hearings made sense
logistically; after all, if most of the witnesses were coming from northern
New Jersey, then New York was a logical place to take their testimony. But
it was also a smart piece of political staging. McCarthy worked mightily to
connect the Monmouth “spy ring” to Julius Rosenberg, who had once worked
there and had been executed for espionage in June 1953.
433
Images of the
Foley Square courthouse would, for many Americans, call to mind
Rosenberg’s trial, which had been held in the same building.
434
Moreover,
McCarthy maintained very tight control over the public script coming out of
the Fort Monmouth hearings: for several weeks, the hearings were closed,
with McCarthy then briefing reporters on what had happened.
435
Press
accounts dutifully relayed McCarthy’s version of what had transpired, often
waiting several paragraphs to note that the testimony took place in
“executive” or “closed” sessions.
436
Unsurprisingly, the narrative coming
430. Id. at 321, 361.
431. Id. at 330–32.
432. See M’Carthy Returns for Army Inquiry, N.Y.
TIMES, Oct. 10, 1953, at 9 (available
through ProQuest Historical Newspapers).
433. See, e.g., Arthur Everett, McCarthy Names Rosenberg as ‘Brain’ of Radar Spy Ring,
W
ASH. POST, Oct. 16, 1953, at 1 (available through ProQuest Historical Newspapers); Edward
Ranzal, Rosenberg Called Radar Spy Leader, N.Y.
TIMES, Oct. 16, 1953, at 1 (available
through ProQuest Historical Newspapers).
434. The New York Herald Tribune made the connection explicit: “Julius Rosenberg and
his wife, Ethel, were arrested on July 17, 1950 and charged with war-time espionage for
Russia. After trial and conviction in the same court house where the subcommittee held its
hearing they were sentenced to death . . . .” Walter Arm, Man, Linked to Rosenbergs, Is
Recalled but Won’t Talk, N.Y.
HERALD TRIB., Oct. 18, 1953, at 1 (available through ProQuest
Historical Newspapers).
435. O
SHINSKY, supra note 386, at 335.
436. See, e.g., Everett, supra note 433; Edward Ranzal, Army Radar Data Reported
Missing, N.Y.
TIMES, Oct. 14, 1953, at 1 (available through ProQuest Historical Newspapers);
Ranzal, supra note 433; Red Scientists Got Secrets, M’Carthy Told, W
ASH. POST, Oct. 23,
2020] CONGRESSIONAL OVERSPEECH 587
out of these closed sessions painted a dire picture of a Signal Corps rife with
Communist subversion. As an indication of how well McCarthy had sold the
closed hearings, even the vehemently anti-McCarthyite Drew Pearson, in a
column headlined “Pearson Agrees with McCarthy,” wrote that “Joe
McCarthy will almost drop dead when he reads this, but in my opinion he is
absolutely right in probing the leak of Signal Corps radar secrets at Fort
Monmouth.”
437
But McCarthy also promised that there would be open hearings to come,
so that the American people could see the problem for themselves. Those
hearings began in late November and, while they certainly had negative
personal consequences for a number of the witnesses,
438
they proved
somewhat anticlimactic, as McCarthy could adduce no evidence of current
subversive activities at Fort Monmouth.
439
The hearings continued to make
news, but while his reports of the closed Fort Monmouth hearings frequently
got top billing, only twice in the six weeks after the public hearings began
did they make the front page of the New York Times, and they never graced
the front page of The Washington Post.
440
The lack of sensational new
revelations did not seem to hurt McCarthy’s standing with the broader public,
however: he and his hunt for Communist subversives continued to poll
well.
441
In January 1954, Democrats returned to the subcommittee, having won a
few concessions from McCarthy. One of those concessions was the right to
hire minority counsel—and they promptly hired Robert Kennedy, who had
left McCarthy’s staff at the end of July 1953 to go into private practice.
442
Meanwhile, the committee continued to investigate the Army, including how
individuals with Communist affiliations were allowed to remain in the
service or be honorably discharged therefrom. In February, in a closed
session, McCarthy tore into General Ralph Zwicker, the commanding
general at Camp Kilmer in New Jersey, saying that he was “not fit to wear
that uniform.”
443
Increasingly, the Army was convinced that it had to stop
playing defense and hit McCarthy back.
444
At about the same time, and
spurred by the same causes, Republican congressional leadership was
beginning at last to publicly express unease with McCarthy.
445
Eisenhower,
1953, at 25 (available through ProQuest Historical Newspapers); Spying Is Charged at Fort
Monmouth, N.Y.
TIMES, Oct. 13, 1953, at 10 (available through ProQuest Historical
Newspapers).
437. Drew Pearson, Pearson Agrees with McCarthy, W
ASH. POST, Oct. 23, 1953, at 55
(available through ProQuest Historical Newspapers).
438. See O
SHINSKY, supra note 386, at 339–44.
439. Id. at 339.
440. Peter Kihss, Columbia Professor Gets McCarthy Contempt Threat, N.Y.
TIMES, Nov.
26, 1953, at 1 (available through ProQuest Historical Newspapers); McCarthy Says State
Radar Base Suspended 12 on Loyalty Charges, N.Y.
TIMES, Dec. 15, 1953, at 1 (available
through ProQuest Historical Newspapers).
441. O
SHINSKY, supra note 386, at 356.
442. R
EEVES, supra note 420, at 498.
443. O
SHINSKY, supra note 386, at 377.
444. Id. at 378.
445. Id. at 390.
588 FORDHAM LAW REVIEW [Vol. 89
too, let it be known that he was “ripping mad” at McCarthy’s attack on an
Army colleague,
446
although he refrained from attacking the senator
directly.
447
But even the hint of criticism from the White House was too
much for McCarthy, who lambasted the president and insisted that he would
continue exposing Communists in positions of power. James Reston, no fan
of McCarthy, couldn’t help but admire his performance: to Eisenhower’s
bland and indirect criticism, McCarthy “answered back, not with a polite
aide-memoire, but with a television show . . . a perfect illustration of his
mastery of mass communication techniques . . . . As a result, the McCarthy
image and melody lingered on the TV screens tonight, long after the
President had gone to bed.”
448
But Reston also recognized that McCarthy’s
behavior had the potential to exacerbate the split in the Republican
coalition,
449
and he was not wrong. Many formerly McCarthy-sympathetic
Republicans regarded his attack on Eisenhower as a bridge too far.
450
Two figures who had never been sympathetic to McCarthy took the
opportunity to pile on. Less than a week after McCarthy’s attack on
Eisenhower, Senator Ralph Flanders (R-VT) took to the Senate floor to blast
McCarthy. Flanders had nothing to lose—he was immensely popular in his
home state and had already announced that he would not seek reelection in
1958.
451
Flanders insisted that McCarthy was “doing his best to shatter the
party whose label he wears.”
452
Even more noteworthy, however, was
Flanders’s tone of folksy—and racist—mockery. After describing the
current state of international affairs, he asked:
In this battle of the agelong war, what is the part played by the junior
Senator from Wisconsin? He dons his war paint. He goes into his war
dance. He emits his war whoops. He goes forth to battle and proudly
returns with the scalp of a pink Army dentist.
453
The press took notice: the Post reprinted Flanders’s entire speech beginning
on the front page, and it also ran an article about it on the front page.
454
The
Times also discussed Flanders’s speech on the front page and described it as
part of a coordinated move by Senate Republican leadership to rein in
McCarthy’s attacks on the Eisenhower administration.
455
That same
446. SHOGAN, supra note 428, at 84.
447. Id. at 84–85.
448. James Reston, Other Cheek Is Struck, N.Y.
TIMES, Mar. 4, 1954, at 14 (available
through ProQuest Historical Newspapers).
449. See id. (“The main result of all this, to date, has been the outspoken disillusion of the
Republican liberals who led the fight for General Eisenhower’s nomination, and argued during
the campaign that his election would result in the decline of Senator McCarthy.”).
450. O
SHINSKY, supra note 386, at 393.
451. Id. at 396.
452. 100 C
ONG. REC. 2886 (1954).
453. Id.
454. Flander’s Address, W
ASH. POST, Mar. 10, 1954, at 1 (available through ProQuest
Historical Newspapers); Lee Garrett, McCarthy Hit by Flanders as Wrecker, W
ASH. POST,
Mar. 10, 1954, at 1 (available through ProQuest Historical Newspapers).
455. W. H. Lawrence, M’Carthy Strives ‘to Shatter’ G.O.P., Flanders Asserts, N.Y.
TIMES,
Mar. 10, 1954, at 1 (available through ProQuest Historical Newspapers).
2020] CONGRESSIONAL OVERSPEECH 589
evening, Edward R. Murrow, the most respected newscaster then working,
456
devoted his entire thirty-minute episode of See It Now on CBS to a uniformly
condemnatory report on McCarthy and his tactics.
457
Much of the report
simply consisted of edited clips of McCarthy, in speeches, press conferences,
and committee hearings, bullying, sneering, and misleading his audiences.
458
The public reaction was intense: CBS received record numbers of calls,
letters, and telegrams, which ran overwhelmingly against McCarthy.
459
A
wide range of other media outlets, both broadcast and print, repeated and
amplified Murrow’s message.
460
At roughly the same time that McCarthy was ramping up his war with both
the Eisenhower administration and the Army, his subcommittee aide Roy
Cohn was attempting to strong-arm the Army. Cohn had brought his close
friend (and, perpetual rumors had it, lover) G. David Schine on as an “unpaid
‘chief consultant’” to the subcommittee in 1953.
461
After “a series of
questionable deferments,” Schine had been drafted and inducted into the
Army in November 1953.
462
Almost immediately, Cohn began a sustained
campaign of pressuring Army leadership to give Schine special treatment,
including in where he was stationed, the availability of leave, and the
avoidance of particularly unpleasant duties.
463
Cohn strongly implied that
the subcommittee’s recent aggressive posture toward the Army was a result
of the Army’s refusal to accommodate Schine.
464
On March 9, 1954—by coincidence, the same day as both Flanders’s floor
speech and the Murrow broadcast—Secretary of Defense Charles Wilson
told McCarthy that the Army had compiled a report on Cohn’s inappropriate
pressure on Schine’s behalf and would release it publicly unless Cohn
resigned. McCarthy refused to ask for Cohn’s resignation, and two days
later, the Army released the thirty-four-page report.
465
A week later, the
subcommittee met and determined that it would have to look into these
allegations itself—as John McClellan (D-AR) told his colleagues, “it is
before the public, and this committee cannot afford to do anything that would
look like we are trying to hush things up.”
466
It was at this point that McCarthy lost his control over the staging of
subcommittee hearings. His colleagues decided that he would have to stand
down as both chair and a member of the subcommittee but that he (as well as
the Army) would have the right to cross-examine witnesses.
467
The
456. See EDWIN R. BAYLEY, JOE MCCARTHY AND THE PRESS 192, 195 (1981).
457. O
SHINSKY, supra note 386, at 397–400; SHOGAN, supra note 428, at 104–14.
458. S
HOGAN, supra note 428, at 105–07.
459. B
AYLEY, supra note 456, at 195; OSHINSKY, supra note 386, at 399.
460. See B
AYLEY, supra note 456, at 195; OSHINSKY, supra note 386, at 399–400; SHOGAN,
supra note 428, at 107–14.
461. R
EEVES, supra note 420, at 465–66.
462. O
SHINSKY, supra note 386, at 363.
463. Id. at 363–65; SHOGAN, supra note 428, at 117–18.
464. S
HOGAN, supra note 428, at 117.
465. O
SHINSKY, supra note 386, at 400–01, 403–04; SHOGAN, supra note 428, at 117.
466. SHOGAN, supra note 428, at 131.
467. O
SHINSKY, supra note 386, at 406–07.
590 FORDHAM LAW REVIEW [Vol. 89
subcommittee would be chaired by Karl Mundt (R-SD).
468
To aid in making
its case, the Army hired as outside counsel Joseph Welch, of the Hale and
Dorr law firm.
469
Most consequential, however, was the decision to televise the Army-
McCarthy hearings, a decision on which Minority Leader Lyndon Johnson
(D-TX)—who was not a member of the subcommittee—insisted.
470
The
hearings began on April 22, 1954, in a “cavernous” committee room that was
designed to hold 300 but into which over 800 spectators had been
admitted.
471
In the back of the room was a custom-built, three-tiered
platform for the “battery of television cameras,” which were supplemented
by more scattered around the room. Floodlights were installed to make sure
the proceedings were legible to the cameras.
472
Two of the four television
networks—ABC and DuMont—would carry all 188 hours of the open
hearings live; NBC and CBS would broadcast nightly summaries.
473
During
the hearings’ first week, roughly two-thirds of American households with
television sets watched the hearings. Perhaps most remarkably, stores
reported an increase in TV sales during the hearings, even amid a drop in
overall daytime shopping, as people stayed home to watch them.
474
An
estimated forty-five million Americans, or over a quarter of the total
population of the country, watched at least part of the live telecast.
475
Print
media were no less invested, with major national newspapers devoting
multipage spreads to the hearings every day, to such an extent that other
national news was largely crowded out.
476
The Army entered the hearings with a costuming advantage: all of those
television viewers (and viewers of the photographs accompanying print
articles) would have observed the Army’s civilian leadership “surrounded by
generals and colonels” in uniform.
477
For a nation less than a decade
468. Id. at 407–09.
469. S
HOGAN, supra note 428, at 135.
470. Id. at 140.
471. Id. at 3.
472. Id. at 6. For a stunning photograph of the “chaos of cameras” set up in the hearing
room, see Chaos of Cameras (photograph), in L
IFE, July 26, 1954, at 106.
473. S
HOGAN, supra note 428, at 11–12, 140–41.
474. O
SHINSKY, supra note 386, at 416–17. On the theme of people staying home, see
Dorothy McCardle, Canasta Canceled: TV and McCarthy Keep ‘Em Home, W
ASH. POST,
May 6, 1954, at 53 (available through ProQuest Historical Newspapers) (“Washington
hostesses, many of whom are usually out to luncheons and teas every day in the week, have
been staying home . . . . to watch the McCarthy-Army row.”).
475. S
HOGAN, supra note 428, at 12 (providing the forty-five million estimate). The Census
Bureau estimates that the American population in 1954 was just over 163 million. Historical
National Population Estimates, July 1, 1900 to July 1, 1999, U.S.
CENSUS BUREAU (2000),
https://www2.census.gov/programs-surveys/popest/tables/1900-1980/national/totals/
popclockest.txt [https://perma.cc/6MA5-KX9M].
476. See O
SHINSKY, supra note 386, at 417.
477. Id. at 421. For still photographs displaying the military uniform to full effect, see, for
example, Gives First-Hand Report (photograph), in N.Y.
TIMES, May 25, 1954, at 1; Murrey
Marder, McCarthy and Aides Perverted Power to Force Promotion of David Schine, Stevens
Testifies in Army Inquiry, W
ASH. POST, Apr. 23, 1954, at 1; Photographs of Secretary Robert
T. Stevens and Major General Miles Reber, in N.Y.
TIMES, Apr. 23, 1954, at 1.
2020] CONGRESSIONAL OVERSPEECH 591
removed from World War II and less than a year removed from the Korean
armistice, a nation that had just elected the first military general to the
presidency since Benjamin Harrison in 1888, the uniforms undoubtedly made
a powerful statement.
The contending sides also made very different scripting choices, with
significant consequences. McCarthy’s style was to badger, bluster, and
interrupt as much as possible. Before the first witness could be called, he
had already raised a point of order,
478
and he was to raise countless more in
the coming weeks. Indeed, one of the major biographies of McCarthy titled
its chapter on the Army-McCarthy hearings “Point of Order”
479
and noted
that such points were “a procedural subterfuge he would employ hundreds of
times throughout the hearings to interject commentary.”
480
Welch, on the
other hand, was far more retiring and reluctant to interject himself into the
proceedings—but he was also incredibly well prepared, which allowed him
to engineer dramatic plot twists. McCarthy and Cohn claimed that any
special treatment of Schine arose not from any pressure brought to bear by
Cohn but rather from the Army’s improper attempts to curry favor with the
subcommittee and get it to back off its investigation. To this end, McCarthy-
sympathetic subcommittee counsel Ray Jenkins introduced a photograph
(that he had received from Cohn) of Schine with a smiling Secretary of the
Army Robert Stevens.
481
Within a day, however, Welch was able to
demonstrate that the photo was misleading. It was originally a group picture,
cut down to make it appear as if Stevens and Schine had been alone.
482
Welch’s revelation of the deception garnered a four-column headline in the
next day’s Times,
483
and the Post’s headline—running three lines across the
entire front page—noted that both sides had been warned about the
possibility of perjury charges being filed.
484
As David Oshinsky has noted,
Welch’s preparation allowed him “with enormous skill . . . to rekindle
memories of the dishonest McCarthy”
485
—that is, to use the dramatic device
of a plot twist in order to make an ethical argument about his antagonist. In
Time magazine’s estimation, this skill defined Welch as “easily the
478. OSHINSKY, supra note 386, at 417.
479. R
EEVES, supra note 420, at 595–637.
480. Id. at 596; see also S
HOGAN, supra note 428, at 170 (noting McCarthy’s “inevitable
points of order”). This was well-recognized at the time. See, e.g., Editorial, Mr. M’Carthy’s
Filibuster, N.Y.
TIMES, May 7, 1954, at 22 (available through ProQuest Historical
Newspapers) (noting McCarthy’s “constant use of ‘points of order,’ which anyone who saw
or read the hearings would agree were to a large extent points of disorder”); Trial By Television
I: The Ordeal of Stevens, N
EW REPUBLIC, May 10, 1954, at 6 (“He broke up every line of
argument with points of order.”).
481. See O
SHINSKY, supra note 386, at 422–24.
482. Id. at 424–25.
483. W. H. Lawrence, Army Charges a ‘Doctored’ Picture Was Submitted by M’Carthy’s
Side; Cohn, in Wrangle, Admits It Was Cut, N.Y.
TIMES, Apr. 28, 1954, at 1 (available through
ProQuest Historical Newspapers).
484. Murrey Marder, Stevens Denies Charges Point by Point; Army, McCarthy Warned on
Perjury; Quiz in Uproar Over ‘Cropped’ Photo, W
ASH. POST, Apr. 28, 1954, at 1 (available
through ProQuest Historical Newspapers).
485. O
SHINSKY, supra note 386, at 427.
592 FORDHAM LAW REVIEW [Vol. 89
smoothest performer . . . in the McCarthy-Army hearings . . . . a superb
actor.”
486
McCarthy tried to counter with the clever use of a prop. After teasing it
once, he pulled out of his briefcase what he claimed was a “carbon copy” of
a letter that FBI Director J. Edgar Hoover had written to the Army in 1951
containing a list of thirty-four possible subversives at Fort Monmouth.
487
If
this letter were accurate, it would indeed suggest that the Army had
deliberately ignored Communist infiltration of the Signal Corps. Again,
Welch’s preparation paid off: he immediately questioned the letter’s
authenticity, having not come across it in the weeks he had spent going
through the Pentagon’s files on McCarthy and Communist subversion.
488
The next day, a subcommittee aide who had been sent to talk to Hoover
reported that the letter did not come from the FBI’s files. The FBI had written
a fifteen-page memo that it sent to the Army in 1951 on a similar topic
containing some of the same language, but the actual FBI memo emphasized
that the claims related therein were “unevaluated.”
489
Welch pointedly
pressed the subcommittee aide: “So far as you know, this is a carbon copy
of precisely nothing.” The aide replied: “So far as I know, it is, yes.”
490
McCarthy himself was then called to the stand, where he refused to answer
Welch’s questions about where he got the “carbon copy.”
491
The Post’s
headline—“McCarthy Won’t Name Informant”
492
—was striking, given how
much hay McCarthy himself had made of other witnesses’ refusals to answer
questions before his subcommittee. The Post also editorialized about this
“second forgery” (after the cropped photograph) that constituted “a fraud and
a hoax on the Senate and on the American people.”
493
At this point, recognizing that the hearings were shaping up badly for
McCarthy, subcommittee member and McCarthy ally Everett Dirksen (R-IL)
proposed that the remaining hearings be truncated and—crucially—not
televised.
494
Chairman Mundt, who desperately wanted to follow this course
of action, was bound by an earlier promise not to end the hearings early if
any of the principal parties objected. Secretary of the Army Robert Stevens,
with Eisenhower’s support, objected, and the hearings continued.
495
In this
context of an already wounded McCarthy, Flanders took to the Senate floor
486. The Other Joe, TIME, May 17, 1954, at 29; see also SHOGAN, supra note 428, at 188
(calling Welch the hearings’ “star performer”).
487. O
SHINSKY, supra note 386, at 429.
488. S
HOGAN, supra note 428, at 191.
489. Id. at 192–93.
490. O
SHINSKY, supra note 386, at 430.
491. Id. at 431–32.
492. Murrey Marder, McCarthy Won’t Name Informant, W
ASH. POST, May 6, 1954, at 1
(available through ProQuest Historical Newspapers).
493. Editorial, Doctored Letter, W
ASH. POST, May 6, 1954, at 14 (available through
ProQuest Historical Newspapers); see also The Terror of Tellico Plains, T
IME, May 17, 1954,
at 28 (“McCarthy’s doctored picture, which [Jenkins] accepted at face value, should have
made him wary of all McCarthy exhibits. Yet a week later he accepted McCarthy’s phony
‘FBI letter’ with the assumption that it was authentic.”).
494. O
SHINSKY, supra note 386, at 436.
495. Id. at 436–38.
2020] CONGRESSIONAL OVERSPEECH 593
again to deliver “one of the meanest attacks on a fellow member in years.”
496
This speech contained some of the same folksiness of his earlier attack,
referring to McCarthy as “Dennis the Menace” and noting that “[o]ur busy
Senator does get us adults into all kinds of trouble.”
497
But it also contained
more sober accusations, explicitly comparing McCarthy to Hitler
498
and
suggesting that Moscow was not displeased with the Senator’s activities:
“One of the characteristic elements of Communist and Fascist tyranny is at
hand, as citizens are set to spy upon each other . . . . Were the junior Senator
from Wisconsin in the pay of the Communists, he could not have done a
better job for them.”
499
Flanders’s speech also contained thinly veiled
homophobic references to the rumored relationship between Cohn and
Schine, asking why Cohn “seems to have an almost passionate anxiety to
retain [Schine].”
500
Once again, the press took note.
501
The most immediately and enduringly famous moment of the Army-
McCarthy hearings came a little over a week after Flanders’s speech. Welch
and Cohn, with McCarthy’s blessing, had earlier struck a side deal: neither
Cohn nor McCarthy would mention that an associate at Hale and Dorr named
Fred Fisher had several years earlier belonged to the National Lawyers Guild,
an organization deemed “subversive” by the House Un-American Activities
Committee. Fisher had initially been tasked to help Welch represent the
Army, but when he volunteered his previous affiliation to Welch, he was
asked to step away from the matter. Fisher therefore did almost no work on
the Army-McCarthy hearings. In exchange for agreeing not to bring up
Fisher’s name, Welch agreed not to ask how it was that Cohn had never been
drafted into the armed forces.
502
On June 9, while Cohn was testifying—and
much to his dismay—McCarthy got frustrated with the questioning and broke
the deal, interrupting the testimony to announce that Welch “has in his law
firm a young man named Fisher whom he recommended, incidentally, to do
work on this committee, who has been for a number of years a member of an
organization which was named, oh, years and years ago, as the legal bulwark
of the Communist Party.”
503
Again, Welch was prepared, having scripted
his famous response in advance. After demanding that McCarthy stop
speaking to an aide and pay attention to what he was saying, Welch
continued: “Until this moment, Senator, I think I never really gauged your
cruelty or your recklessness.”
504
He then recounted how Fisher had
496. Id. at 451.
497. 100 C
ONG. REC. 7389 (1954).
498. Id.
499. Id. at 7390.
500. Id.
501. Robert C. Albright, M’Carthy Hit as Menace by Flanders, W
ASH. POST, June 2, 1954,
at 1 (available through ProQuest Historical Newspapers); William S. White, Flanders Likens
M’Carthy, Hitler, N.Y.
TIMES, June 2, 1954, at 1 (available through ProQuest Historical
Newspapers).
502. O
SHINSKY, supra note 386, at 457–60; REEVES, supra note 420, at 589, 628–30;
S
HOGAN, supra note 428, at 222–23.
503. OSHINSKY, supra note 386, at 461.
504. Id. at 462.
594 FORDHAM LAW REVIEW [Vol. 89
volunteered the information of his previous Guild membership and been
asked to step away from work on the hearings, and Welch reiterated his
support for Fisher. “Little did I dream you could be so reckless and so cruel
as to do an injury to that lad.”
505
When McCarthy persisted in talking about
Fisher, Welch delivered his coup de grâce: “Have you no sense of decency,
sir, at long last? Have you left no sense of decency?”
506
After another brief
back-and-forth, Welch announced that he was done questioning Cohn.
507
The hearing room erupted in applause; Chairman Mundt, who had
previously kept a tight leash on disruptions from the gallery, made no attempt
to silence it.
508
As Robert Shogan noted,
The impact of Welch’s rebuke was heightened by the dexterity of the TV
camera crews. Three separate cameras were aimed at each of the principals
in this climactic exchange—McCarthy, Cohn, and Welch, catching them
not only as they spoke but as they reacted to the words of the others. As
for McCarthy, he seemed in a state of shock.
509
The press immediately recognized this as a crucial moment. The Times and
the Post both splashed it across multiple columns of the front page; in the
Times, it was accompanied by a photograph of Welch “near tears,” while the
Post helped its readers know with whom to side by mentioning the audience
applause in its headline.
510
It would be a mistake to describe the exchange over Fisher as a turning
point. It was more of a culmination or crystallization of the overall
impression of the hearings to that point,
511
an impression that called on
memories of overspeech going back to the Tydings committee. McCarthy’s
net favorability rating in Gallup polls, which had stood at +21 in January
1954, stood at -11 by June, and it would never recover.
512
Two days after
the Fisher exchange, Ralph Flanders engaged in a brilliant piece of
overspeech. While McCarthy was on the stand testifying, Flanders—who
was not a member of the subcommittee—walked up and handed him a note.
The note, which McCarthy dutifully read aloud, informed him that Flanders
intended that afternoon to make another floor speech about McCarthy.
Chairman Mundt, obviously baffled, asked Flanders to withdraw, but
505. Id.
506. Id. at 463.
507. Id. at 464.
508. Id.
509. S
HOGAN, supra note 428, at 226–27.
510. W. H. Lawrence, Welch Assails M’Carthy’s ‘Cruelty’ and ‘Recklessness’ in Attack on
Aide; Senator, on Stand, Tells of Red Hunt, N.Y.
TIMES, June 10, 1954, at 1 (available through
ProQuest Historical Newspapers); Murrey Marder, Welch Excoriates McCarthy as ‘Cruel,’
Lacking ‘Decency’; Draws Audience Applause, W
ASH. POST, June 10, 1954, at 1 (available
through ProQuest Historical Newspapers); see also The Gauge of Recklessness, T
IME, June
21, 1954, at 23 (noting contemporaneously that it “will probably be remembered as the most
memorable scene of the McCarthy-Army hearings”).
511. See O
SHINSKY, supra note 386, at 464 (noting the “cumulative impression of
[McCarthy’s] day-to-day performance—his windy speeches, his endless interruptions, his
frightening outbursts, his crude personal attacks”).
512. Id. at 464–65.
2020] CONGRESSIONAL OVERSPEECH 595
Flanders had already accomplished his goal: everyone watching the hearings
on television and every newspaper editor planning the next day’s front page
had advance notice of Flanders’s next move.
513
That next move was to
introduce a resolution stripping McCarthy of his committee and
subcommittee chairmanships.
514
Flanders’s resolution was featured on the
front page of the next day’s Times and Post, both of which ran it alongside a
photo of Flanders handing McCarthy the note.
515
The next month, after the Army-McCarthy hearings had come to a close,
Flanders withdrew that resolution and substituted one condemning McCarthy
for “conduct . . . unbecoming a Member of the United States Senate . . . and
tend[ing] to bring the Senate into disrepute.”
516
The galleries were packed
for Flanders’s speech introducing the censure resolution.
517
After several
days of debate, the Senate referred the resolution to a six-person special
committee, made up of three members of each party, all of whom were long-
standing and well-respected members of the chamber. Republican Arthur
Watkins of Utah would be the chair.
518
The Watkins committee hearings would perform calmness and solemnity
as a form of rebuttal to the manner in which McCarthy himself held hearings,
a fact not lost on observers. As anti-McCarthyite journalist Alan Barth put
it, the Watkins committee was “in almost every important respect the
antithesis” of the McCarthy-led Permanent Subcommittee on
Investigations.
519
In marked contrast to the Army-McCarthy hearings, they
barred television cameras from the proceedings.
520
The New York Times’s
front-page report on the first day of Watkins committee hearings noted that,
when McCarthy’s continual raising of objections disturbed the “court-like
calm” of the hearings, Watkins “silenced [him] as being out of order.”
521
The Watkins committee’s report was released in late September, about five
weeks before the midterm elections in which Democrats retook control of
both houses of Congress, a result at least partially attributable to public
disgust with McCarthyism.
522
Less than a month later, the full Senate voted
to censure McCarthy by a lopsided 67 to 22 vote.
523
The Times editorialized
513. Id. at 466–67.
514. 100 C
ONG. REC. 8033 (1954).
515. Robert C. Albright, Flanders Demands McCarthy Answer Queries on Finances or
Lose Key Chairmanships, W
ASH. POST, June 12, 1954, at 1 (available through ProQuest
Historical Newspapers); C. P. Trussell, Flanders Moves in Senate to Strip McCarthy of Posts,
N.Y.
TIMES, June 12, 1954, at 1 (available through ProQuest Historical Newspapers).
516. S. Res. 301, 83d Cong. (1954).
517. 100 C
ONG. REC. 12,729 (1954).
518. C
HAFETZ, supra note 53, at 265; OSHINSKY, supra note 386, at 476–77.
519. A
LAN BARTH, GOVERNMENT BY INVESTIGATION 201 (1955).
520. O
SHINSKY, supra note 386, at 477.
521. Anthony Leviero, New Inquiry Is on: McCarthy Gaveled Down as He Persists in Plea
to Discredit Johnson, N.Y.
TIMES, Sept. 1, 1954, at 1 (available through ProQuest Historical
Newspapers).
522. O
SHINSKY, supra note 386, at 483; REEVES, supra note 420, at 652–54.
523. James Reston, Final Vote Condemns M’Carthy, 67-22, for Abusing Senate and
Committee; Zwicker Count Eliminated in Debate, N.Y.
TIMES, Dec. 3, 1954, at 1 (available
through ProQuest Historical Newspapers).
596 FORDHAM LAW REVIEW [Vol. 89
that, by censuring McCarthy, “the Senate of the United States has done much
to redeem itself in the eyes of the American people,” and noted that the
Watkins committee “conducted a model inquiry.”
524
Four days later, an
angry outburst against Eisenhower would earn McCarthy his last front-page
story until his obituary.
525
He would remain in the Senate for two and a half
years longer, “shunned by his political allies [and] ignored by the press.”
526
In May 1957, he died from alcoholism.
527
Overspeech is central to the McCarthy story at every turn. His speeches
on the Senate floor and his performance before the Tydings committee were
vital to his building a national constituency. His careful stage management
of Permanent Subcommittee on Investigations hearings—including his
understanding of the potential of television as a medium of political
communication—made him into one of the most powerful people in the
nation. But overspeech was also essential to the pushback against McCarthy
from the beginning, ranging from Millard Tydings’s use of props, to Joseph
Welch and the Army’s uses of scripting and costuming, to Ralph Flanders’s
combination of folksy mockery, insulting innuendo, and devious spotlight-
stealing. Initially, by figuring the choice as being either with him or with the
Communists, McCarthy was able to silence a lot of would-be critics. But the
divisiveness that initially served him so well eventually turned on him, by
ensuring that he had a dedicated cadre of enemies eager to see him fall.
McCarthy, who rose to prominence through overspeech, was brought low by
the same.
C
ONCLUSION
Oversight is one of Congress’s most important functions. It makes the
“intelligent exercise” of all other congressional powers possible,
528
but it also
makes it possible for Congress to shape the exercise of public intelligence
and judgment. It is this second way of using the tools of oversight—not as a
means for Congress to inform itself but rather as a means to communicate
with the public—that I have referred to as overspeech. As the case studies
above demonstrate, overspeech, like any political tool, is no better than the
actor wielding it. But the purpose for which it is wielded notwithstanding,
this Article has demonstrated both that overspeech is a common phenomenon
and that it is an institutionally valuable one, providing Congress with
important tools to compete with the other branches for public support and,
therefore, for power.
524. Editorial, Censure, N.Y. TIMES, Dec. 3, 1954, at 26 (available through ProQuest
Historical Newspapers); see also Editorial, Judgment of the Senate, W
ASH. POST, Dec. 3,
1954, at 20 (available through ProQuest Historical Newspapers) (calling the censure “a
vindication of the Senate’s honor”).
525. O
SHINSKY, supra note 386, at 493.
526. S
HOGAN, supra note 428, at 260.
527. REEVES, supra note 420, at 671–72.
528. Landis, supra note 91, at 205.
