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

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

Some powers ancillary to the congressional power of

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

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

• Seg Eastland v. United States Servicemen's Fund, 421 U.S. at 504-06; Wacking v. United States, 354 0.8. at 188; Buckley v. Valeo, 424 U.S. 1, 109-13, 137-41 (1976) (investigative powers (continued...

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contemplates that individual Members of Congress will

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

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

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

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

(...continued)

vested in FBC officers appointed by Congress); McDonnell Douglas Corp. v. United States, 754 7.2d 365, 368 (Fed. Cir. 1985) (upholding General Accounting Office subpoena).

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

616-17.

The constitutional importance of the investigative and informing functions of Members of Congress does not end at the Legislative function, however. To the contrary, the ability, indeed duty, of each Member of Congress to act as an independent

watchdog against "corruption, maladministration (and)

inefficiency in the agencies of the Government,・ Warking v. United States, 354 U.S. at 200 & n.33 (1957), was a cornerstone

of the elaborate system of checks and balances established by the Pramers of the Constitution.

See, eg, The Federalist No. 51

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

several offices in such a manner as that each may be a check on that the private interest of every individual may be

the other

a sentinel over the public rights").

The ability of each Member to report to his

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

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

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administrative agents of the government, the country
must be helpless to learn how it is being
served..
The informing function of Congress
should be preferred even to its legislative

function.

The only really self-governed people is that people which discusses and interrogates its administration.

History bas

W. Wilson, Congressional Government 303-04 (1885). demonstrated the wisdom of a constitutional scheme that

recognizes and protects the information gathering capabilities :f individual Members of Congress. Time and again, it has been the queries and diligence of individual Members, acting through the Committee process, that have brought to public light government excesses, corruption, conflicts of interest and even criminal conduct. From the Whiskey Ring to Teapot Dome to deferse contractor fraud, from Watergate to Whitewater, individual Members have consistently played crucial roles in inquiring in:: and publicizing both private and government wrongdoing.'

An individual Member's rigorous discharge of his investigation and informing responsibilities is particularly important where, as here, that Member is a Ranking Minority Member serving in a Congress controlled by the same party that controls the Executive Branch. As this case confirms, in the case of undivided government, the public cannot always rely on Congress as a whole or its formal committees to thoroughly investigate Executive Branch agencies, especially when the

A more recent example of the investigative efforts of individual Members is Representative Wolf's investigation of and push for disclosure by White House political consultants.

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investigation touches upon senior Executive Branch officials.

Rather, the public must instead rely more heavily on its

individual elected representatives to ferret out and confirm, cr rebut, allegations or waste and abuse.

The Defendants' attempt to limit the ability of

individual Members to carry out their informing function raises serious separation of powers concerns.

Although the Framers did

not contemplate the modern two-party political system, they certainly recognized the dangers associated with "majority faction," and, indeed, identified protecting against that danger as the primary goal of government reform. See The Federalist No. 10 (J. Madison) ("When a majority is included in a faction, the form of popular government enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is ther the great object of which are inquiries are directed"). It is precisely because the Framers established a government without parties that the underlying principle of separation of powers demands that individual Members not be hobbled in their information gathering capacities when one political party gains control of two branches of government. Cf. United States v. Williama, 15 F.3d 1356, 1361 (6th Cir. 1994) ("Although the principle of separation of powers flows from the structure and text of the Constitution, any attempt to limit consideration of

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