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Journal of Homeland Security and Emergency Management

Volume 6, Issue 1 2009 Article 58

Escaping the Entanglement: Reversing Jurisdictional Fragmentation over the

Department of Homeland Security

Timothy Balunis Jr.* William Hemphint

"United States Coast Guard Academy, [email protected] tunited States Militury Academy, hemperorl976~yahoo.com

Copyright @2009 The Berkeley Electronic Press. AI! rights reserved.

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Escaping the Entanglement: Reversing Jurisdictional Fragmentation over the Department of Homeland Security*

Timothy Balunis Jr. and William Hemphill

Abstract

The Department of Homeland Security (DHS) was born in the aftermath of the 9/1 I attacks, and represents one of the largest ever reorganizations of the U.S. government. Although the de­ partment's creation precipitated a complex conglomeration of 22 diverse agencies and offices, the institutional response in the U.S. Congress has been similarly complex. Ambiguities in the juris­ dictions of congressional committees, exacerbated by the emergence of new homeland security issues, have led to a highly fragmented oversight of the six·year-old department. In the 11011'

Congress, for example, 86 committees and subcommittees asserted some form of jurisdiction over the DHS. After considering the effects of fragmentation on the DHS, this paper considers the expe­ rience of three other, relatively young departments. In doing so, it becomes evident that the DHS' experience is anomalous among executive departments. Analysis of hearing data from 2007·2008 reveals a number of key faultlines in committee jurisdictions over the DHS. After probing those areas of contention between committees, this paper makes recommendations as to what jurisdic· tiona) changes can be made to reverse the fragmentation trend in Congress. Lastly, success in consolidating congressional jurisdiction over the DHS must be politically realistic, acknowledg­ ing likely institutional resistance. While the ideal stmtegy would be immediate statutory reforms to committee jurisdictions in the II I tl• Congress, a more incremental campaign to streamline oversight of the DHS may be necessary in the long run. Through the implementation of these proposals, the debilitating effects of fragmentation on senior department leadership and mission execution can be minimized.

KEYWORDS: congress, committees, oversight, jurisdiction, fragmentation, reform

• Lieutenant Timothy Balunis is an Instructor of American Government at the U.S. Coast Guard Academy. The views here are his own and not those of the Coast Guard Academy or other branches of the U.S. government. Major William Hemphill is an Instructor of International Relations at the U.S. Military Academy. The views expressed herdn are those of the author and do not ren~:ctthe position of the United States Military Academy, the Department of the Army, or the Department of Defense .

Balunis and Hemphill: Escaping the Entanglement

I. INTRODUCTION

The amalgamation of the Department of Homeland Security (DHS) has been enduringly complex. However, the institutional response in Congress has been no less complex. Practitioners, politicians, academics, and the media have bemoaned the web of congressional committees overseeing DHS since the creation of the department. Ninety-five committees or subcommittees in Congress exercised jurisdiction over DHS in the 1 J Oth Congress, 1 manifested in aJmost 400 hearings, 6,500+ formal inquiries, 4900+ congressional briefings, and countless hours of preparation and testimony by the department's senior leadership (Vlahos, 2009). Beyond staffwork and hearing rooms, the entanglement of DHS among so many committees threatens the cohesion, vitality, and effectiveness of the department. This dispersion of congressional activity distracts DHS leadership at a time when focus is imperative. Under the current rules and structure of the committee system, this situation does not stand to improve in the lll 1h Congress.

DHS' experience in Congress continues to be an anomaly. While ninety­ five overseers in Congress may sound like a lot, it is reasonable to consider that number in relative terms. Does every other executive department have the same experience? Among massive government bureaucracies that manage hundreds of programs, millions of employees, and billions of budget dollars each year, is the plight of DHS is so unique? Through a comparative analysis of three other departments created since World War II - the Departments of Defense (DOD), Energy (DOE), and Transportation (DOT) - data reveals that DHS is indeed at a lonely extreme. Though hardly the largest department in terms of its membership or budget, the fledgling DHS endures almost 200% more oversight than DOD, DOE, or DOT combined.

Most of the commentary and analysis thus far has stopped there, short of any clear or realistic solutions. Although this article will provide further detail on the sprawling state of oversight over DHS, it goes on to propose structural and strategic recommendations for untangling DHS from its jurisdictional web in Congress. Deeper analysis of DHS' congressional activity, and case studies in the evoJution of DOD, DOE, and DOT, will provide clear answers for reversing the fragmentation trend. As challenging as it has often been, the current Congress must be prepared to realign and consolidate key elements of jurisdiction over homeland security. The ultimate purpose of congressional reform must be to optimize homeland security, from Nebraska Avenue to the frontlines nationwide.

I Congressional hearing data for the duration of the 11 o"' Congress was obtained through the respective departmental websites ofDHS (http://www.dhs.gov/xabout/gc 1198102431198.shtm ), DOD (http://www.dod.mil/dodgc/olc/tstmny.html ), DOE (http://congressional.energy.gov/ ), and DOT (http://testimony.ost.dot.govD. To ensure accur.tcy of data, we cross-referenced departmental data with committee archives under the House of Representatives (http://www.house.gov ) and Senate websites (http:/lwww.senate.gov ).

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II. THE EFFECTS OF FRAGMENTATION

Fragmented jurisdiction is not an abstract problem. As the scope and frequency of congressional oversight over a department increases, it manifests itself in greater demands on the resources, time, and attention of senior departmental leaders. It is reasonable to ask how those demands trickle down to the operational and tactical levels. For an organization like the Department of Homeland Security (DHS), does fragmentation in Congress' committee rooms tend to enhance or distract the execution of homeland security missions? As one reviews data capturing the congressional workload of DHS, this question must remain in the foreground.

In mid-2007, Representative Peter King (R-NY), Ranking Member of the House Homeland Security Committee, wrote Secretary Michael Chertoff to ascertain the effects of fragmented oversight on DHS. The impetus for this request was reports of DHS personnel being disproportionately distracted from their duties by myriad congressional panels. Data from the first session of the IIO'h Congress supported this claim. In the department's response to Mr. King in September 2007, Secretary Chertoff noted that DHS personnel were typically notified of hearings only 48-72 hours prior to the deadline for submission of testimony. The demands of dozens of committees and subcommittees often translated into DHS personnel being called to give testimony at numerous hearings on the same subject, causing duplication of effort. DHS estimated the amount of written testimony provided by DHS to Congress from 2004-2007 at approximately I 0,000 pages, representing over 15,000 work hours (2007).

Other data paints a similar picture. Congress made approximately 6,500 formal inquiries to DHS in 2007, with over 2500 to the Secretary alone. 2007 saw sharp increases in both the number of Government Accountability Office investigations and audits (243, up 46% from the previous year) requiring DHS participation; the number of authorizations/appropriations reports for DHS was required to file rose to 546, up more than 28% from the previous year. With 95 committees and subcommittees asserting jurisdiction and or oversight of DHS, the Department was called on to give 231 hearings and 2,623 briefings to the 11 01

h

Congress in 2007 alone. Since the creation of DHS, year-end data show that both of these figures have risen in each successive year (on average, hearing activity rose over 12%, and briefing activity rose by over 14.5%) (2007).2

Textual analysis of congressional hearings confirms the duplication of effort and repetition of testimony by DHS personnel. For example, between February 6th and April 241

\ 2007, Secretary Chertoff or DHS agency heads testified on five separate occasions, before four different panels, on affordable housing in the wake of Hurricane Katrina (2007). Analysis reveals substantial,

2 In aggregate, DHS estimated a "conservative" 15,000+ work hours in support of congressional hearings for 2007.

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Balunis and Hemphill: Escaping the Entanglement · 3

recurring similarities in language, style and content across these testimonies. For three hearings held in February, the testimony submitted was identical. While this example was extreme, it was also not an isolated occurrence as numerous committees asserted legislative or oversight jurisdiction over DHS.

Consider the "trenches." Fragmentation affects agencies and programs as well as senior leadership. Although these demands absorbed the attention ofDHS' top leaders, they translated into further demands upon leaders directly responsible for agencies, programs, and mission execution. In 2007, the Coast Guard Commandant, Admiral Thad Allen, testified I 0 times before 6 different panels; Transportation Security Administration (TSA) Administrator Kip Hawley testified 15 times before 9 panels. In the same year, Federal Emergency Management Agency (FEMA) officials testified 44 times before 18 committees and subcommittees; Coast Guard personnel testified 31 times before II panels; for Customs and Border Protection (CBP) officials, 28 appearances before 18 different panels. In contrast, the Chairman of the Joint Chiefs of Staff testified 3 times before 3 committees in 2007. All of DOD's functional and geographic combatant commanders (COCOMs) testified a total of 24 times before only 8 panels the same year. Considering DHS' estimate of 60 work hours to prepare for and deliver testimony for each hearing - with some hearings requiring over 200 hours of preparation (DHS, 2007) - the drain on agency leadership was considerable. In the II 01

h Congress, it was not uncommon for leaders such as Allen and Hawley to spend back-to-back days on Capitol Hill, or testify before two different congressional panels on the same day. It is reasonable to wonder whether these thousands of hours consumed by congressional testimony were hours not entirely focused on the direction needed by their agencies' operators.

Lastly, the involvement and prerogatives of so many committees and subcommittees can have dilatory effects on the authorization and appropriations processes. DHS has not had an authorization bill since 2004 (Strohm, 2008). When authorization and appropriations bills, those critical pieces of legislation setting basic policy and funding levels for an executive department, must pass through so many congressional gatekeepers, delay is unsurprising but nonetheless daunting throughout all levels of DHS (Margetta, 2009). How these trends correlate to jurisdictional fragmentation in Congress - and how they impact homeland security at the operational and tactical levels - is a legitimate concern.

III. CROSS-DEPARTMENTAL ANALYSIS

In relation to other departments, is the Department of Homeland Security's (DHS) situation so unusual? Any comprehensive effort to understand and improve the situation should include a comparative analysis of other executive departments. Scrutiny of the current jurisdictional framework over the Departments of Defense (DOD), Energy (DOE), and Transportation (DOT), as well as the concurrent

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evolution of these departments and their oversight committees, will afford valuable insights for DHS.

What is the relationship between congressional committees and executive departments? Revealingly, the Constitution established neither. While executive departments are mentioned once under the powers and responsibilities of the President, there is no word of congressional committees. But very quickly, the President and Congress realized that these respective institutions were necessary for an effective and efficient government. Early congressmen were fearful of committees, and secret deliberations and decisions by selective groupings of legislators. However, the young Congress, overwhelmed by the volume of issues and legislation, developed an ad hoc committee system to manage their workload and institutionalize expertise. King details how this ad hoc system mushroomed into a standing committee system that today numbers thirty-six between House and Senate, an institution within an institution (1997). On the executive side, the initial Departments of State, War, and Treasury have since grown into a bureaucracy featuring fifteen departments, of which DHS is the newest member.

Committee jurisdictions - their sphere of public policy, known also as "turP' - coincide partially, and sometimes almost completely, with executive departments. For example, functions of the Department of Agriculture align closely with the turf of the House and Senate Agriculture Committees. At another extreme, the House Science and Technology Committee oversees elements of DOD, DOE, DOT, DHS, and Department of the Interior (House Rule X, 2009).

As executive departments are created, as they expand or contract or change their focus, congressional committees evolve with them. After DOT officially opened for business in April 1967, the House Public Works and Senate Commerce Committees used their limited jurisdiction over transportation issues to grow their influence over DOT. After years of policy entrepreneurship and turf battles, these committees emerged as the House Transportation and Infrastructure ( 1995) (King, 1997) and Senate Commerce, Science, and Transportation Committees (I 977) (CS&T, 2008), exercising primary jurisdiction over many DOT agencies and functions. Amidst the creation of DOE in 1977, House and Senate committees wrestled to gain pre-eminence in oversight of the new department, and energy issues in general. Through a rare reform, the Committee System Reorganization Amendments of 1977, the Senate opted to create a new committee. The Senate Committee on Energy and Natural Resources (E&NR) was to have primary jurisdiction over DOE, and has since strengthened its jurisdictional hold over DOE (Schneider et al, 2003). In the House, Speaker­ backed support for a new standing Committee on Energy was overcome by entrenched committee chairs and an assertive Commerce Committee. Like the House and Senate committees that steadily built jurisdiction over DOT, the then­ House Commerce Committee utilized its command of tangential energy issues to

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Balunis and Hemphill: Escaping the Entanglement 5

gain primary jurisdiction over DOE (Johnson, 2003). As a result, a standing House committee primarily focused on energy issues has never been established.

How does any of this impact DHS? Against this evolutionary backdrop, the experiences of new executive departments and their corresponding committees provide important lessons for the newest department. Although it is at the intersection of tremendous jurisdictional fragmentation, how does DHS' experience compare to DOD, DOE, and DOT?

A critical distinction is necessary here. This study focuses on congressional fragmentation relating to executive departments, broadly determined by ( 1) the number of panels exercising jurisdiction over a department, and (2) the relative activity of department agencies and officials before different committees. To this end, "committees of primary jurisdiction" are a crucial reference point. For a given department, which House and Senate committee retain primary responsibility for overseeing and legislating their agencies, functions, and policy areas? For example, to which committees are authorization bills for respective departments initially referred? Based on the legislative and oversight jurisdictions granted to committees in House Rule X and Senate Rule XXV, and the evolution of respective departments and committees, the following are designated as the committees of primary jurisdiction for each department:3

~

Deoirtment 'House ~ ...,.. Stn1te

Dernse Anned Services Anned Services

(HASC) (SASC)

Energy Energy 1111d Commerce Energy nnd Natural Resources

(E&C) (E&NR)

Homelutl Security Homeland Security Homel1111d Security ond Governmental Affnirs

(CHS) (HSGAC)

Trnnsporllllon Transportation and Infrastructure Commerce, Science, ond Transportation

!T&I) <Cs&n

Figure 1. Committees of Primary Jurisdiction, by Executive Department

The congressional hearing data employed by this study provides a view across four executive departments. The data set includes all committee and subcommittee hearings from the II 01

h Congress at which DHS, DOD, DOE, and

3 Admittedly, the idea of one "primary" House and Senate committee for each department is a broad generalization. Although departmental authorization bills are often referred to one primary committee in each chamber, some agencies within a department fall under the jurisdiction of another committee. For example, CHS and HSGAC have primary jurisdiction over DHS per the House and Senate Rules, but jurisdiction over the Coast Guard is clearly granted to T&l and CS&T. Acknowledging such exceptions, this generalization nonetheless affords important insights as to the degree of fragmentation in jurisdiction over whole departments.

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DOT officials testified. For each hearing, analysis includes: (1) which panel, in which congressional chamber, was holding the hearing; (2) which department and component agency was appearing at each hearing; and (3} the subject of the hearing. In aggregate, this data captured the relative activity of executive departments and agencies before House and Senate committees/subcommittees.

Based on this data, DHS' experience in Congress is an anomaly. Even a superficial appraisal of the data is revealing. Beginning with the principal motivator for this study, the total number of panels exercising oversight over the departments, the hearing data exposes a sharp contrast. While DHS reported to 95 congressional committees and subcommittees in the II 01

h Congress as of March l31

h, DOD reported to 43, DOE to 34, and DOE to 32. Before those panels, DOE officials testified at I 04 hearings, DOT at 125, and DOD at 261; DHS officials testified at 374 hearings. These figures affirm that oversight of DHS is unusual compared to these executive departments. Given that DOD and DOT are relatively large departments, DHS' experience would seem to be unusual among all executive departments.

To reflect the degree of fragmentation among committees and subcommittees, hearing data has been processed into two categories: (a} the percentage of department hearings before committees of primary jurisdiction, and (b) the percentage of individual appearances by department/agency officials before committees of primary jurisdiction. These categories are similar, but need not yield the same percentages. Any differences may reflect multi-agency hearings, heightened hearing activity surrounding certain agencies, or inter­ committee tug-of-war over departmental components or agencies.

I li

I•

I ~ DOD DOE DHS DOT

261 43

104 36

376 95

125 32

126 48.28% 285 141 49.47%

53 50.96% 128 79 61.72"/o

187 49.73% 434 225 51.84%

87 69 60o/o 135 96 71.11%

Figure 2. Departmental Hearing Data- Committees of Primary Jurisdiction

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Balunis and Hemphill: Escaping the Entanglement 7

Looking at Category (a), DHS' problem in the ll01 h Congress is apparent.

Less than 50% of the hearings at which DHS officials testified were before CHS or HSGAC. DOE had it better (51%), but DOT is the more staggering contrast - over 69% of its hearings were before its committees of primary jurisdiction. Category (b) paints a similar picture, with some difference as regards DHS. The total percentage of appearances by DHS officials before CHS/HSGAC climbs just above 51%. The trends for DOE and DOT are accentuated- DOE's appearances before its primary committees rise above 61%, while DOT's climb above 71%.

DOD's numbers more closely resemble those of DHS, and imply that the former experiences a similar degree of fragmentation. Only 48.3% of DOD's hearings, and just under 50% of its total appearances, were before HASC/SASC. Like DHS, DOD has two significant "competitors" for its attention on Capitol Hill. Like DHS, DOD's primary competitors occupy a large percentage (almost 25%) of its hearing activity. While CHS and HSGAC often contended with the House and Senate Appropriations and Transportation Committees - over 25% of DHS's activity was before these panels- the Appropriations and Veterans Affairs Committees consumed 24% of DOD's appearances.

However, there are key differences between DHS and DOD. Beyond the corresponding trifurcation between the primary committees, Appropriations Committees, and competing authorizer, the experiences of DHS and DOD diverge sharply. Recall that DOD officials testified at a totaJ of 261 hearings, before 43 different committees and subcommittees; DHS testified at 376 hearings, before 95 different panels. In terms of its aggregate experience in the II 01

h Congress, DHS was clearly stretched far thinner, among more than twice as many committees and subcommittees, than the larger DOD. The next section will further explore this competition among committees, and identify which committees are contending with the homeland security committees over what issues.

As demonstrated earlier, the scrutiny of numerous congressional panels multiplies the cross-pressures on senior DHS leaders. While these cross-pressures create tremendous demands upon the precious time and attention of department leaders, they may further challenge the department - and the mission - through redundant or conflicting guidance.

It is therefore imperative to consider the experience of operational agencies within DHS- the Coast Guard, CBP, CIS, ICE, FEMA, TSA, and the Secret Service. These agencies, the operational arms of DHS, testified over 25% more often outside of their committees of primary jurisdiction than inside, a ratio of 55.9% to 44.1 %. Contrast this with the experiences of DOT and DOD in the 1101

h Congress. Officials from DOT's large legacy/operational agencies - FAA, FHW A, FMCSA, FRA, FTA, MARAD, NHTSA, PHMSA, and SLSDC - testified over three times as often before their committees of primary jurisdiction (70) than outside (23). DOD's functional/geographic combatant commands

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(EUCOM, CENTCOM, SOCOM, TRANSCOM, et cetera) appeared over twice as often before their committees of primary jurisdiction (36) than before other committees (I 7). Even though other congressional committees have some jurisdictional basis for overseeing DOD and DOT under the House and Senate Rules, these departments did not endure the same experience as DHS.

Do explanations exist for the differences between DHS, DOD, DOE, and DOT? Certainly. As demonstrated earlier, the Legislative Reorganization Act of 1946 forcefully concentrated jurisdiction over DOD in the House (HASC) and Senate Armed Services Committees (SASC) just before the creation of the corresponding Department of Defense (DOD) in 1947 (Koempel, 2007). Aside from Veterans Affairs, and despite internal changes such as the introduction of the All-Volunteer Force and the 1986 Goldwater-Nichols Act, DOD's functions and purpose have remained largely within the jurisdictional reach of HASC and SASC. The agencies in DOT share a clear, common focus on transportation: aviation, railroads, highways, mass transit, pipelines, trucking, maritime shipping and vessel traffic. Each is focused on a specific aspect of transportation, with few external purposes. Admittedly, DOT has been around a great deal longer. As the hearing data indicates, T &I and CS&T have been models of jurisdictional consolidation since the inception of DOT. They've had decades and numerous opportunities to stake out their territory, while DHS has recently celebrated only its sixth birthday. Yet this just accentuates the need for a solution.

IV. THE BATTLEGROUND

DHS is cross-pressured by congressional panels to an unrivaled extent. This revelation is not new. It was not unforeseen as the young department coalesced after September 11th (Kean and Hamilton, 2003). But most commentary ends there, concluding with only general recommendations for Congress to reform its committee system and streamline the total number of congressional panels into to a reasonable figure (Vlahos, 2009). This is not the level of clarity or detail that Congress needs. To reverse the jurisdictional hyper-fragmentation that DHS endures, a problem that continues to distract its senior leadership, specific recommendations are necessary.

Informational efficiency, and not the prerogatives of committees, should drive the effort to untangle DHS in Congress. Coursing beneath the fierce public debate over Iraq, Afghanistan, and Pakistan is an unending battle in ports, subways, streets, airports, and cyberspace. Terrorists have not struck the United States since September 11th, but they have tried and come close. The United States' success in preventing further attacks has been a direct result of continuing coordination between federal, state, and local agencies, orchestrated by DHS. As the fragmentation trend continues in Congress, increasingly hampering the leadership of DHS, conflicting or redundant directives from myriad committees

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Balunis and Hemphill: Escaping the Entanglement 9

could sidetrack homeland security efforts. Jurisdictional consolidation and committee reform should be about making clear, well-informed homeland security policy while maintaining an assertive oversight regime. Policy, and not politics, should be the guiding principle.

Jurisdictional consolidation requires changes to the jurisdictions granted to committees by the House and Senate Rules. Currently, the scope of public policy "owned" by various committees, particularly relating to DHS, is excessively broad and vague. To bring the total number of committees and subcommittees down to a number that resembles the experiences of other departments, homeland security jurisdiction should be consolidated in a few appropriate committees. This evokes three key questions: Which policy areas or DHS agencies/components are being fought over? By which committees and subcommittees? What jurisdictional changes in the House and Senate would best reverse these fragmentation trends?

To understand the battlefields between committees, one must clarify what policy areas are being fought over. Recall the original data set: All hearings in the 11 01

h Congress where a DHS official testified. For each of these hearings, this study cross-referenced the subject matter of the hearing with the committee or subcommittee holding the hearing. The referencing of House Rule X or Senate Rule XXV (depending on the chamber in which the hearing was held) revealed which explicit jurisdictional citation(s) could be used to justify the committee's activity on a given subject regarding DHS. This method illuminated the jurisdictional "angle" used by committees to call on DHS, with the most commonly used jurisdictional areas in the House and Senate rules constituting the "battleground." Within these areas lies the greatest potential for realignment.

In the House, the principal battleground issues were natural disaster management, immigration, transportation security v. safety, and the general management/administration of DHS. While the Senate shares these battlegrounds, counterterrorism was also a fiercely contested issue in that chamber, as were individual DHS agencies under the explicit jurisdiction of specific Senate committees. Close examination of the agencies charged with these mission areas, the operational arms of DHS - FEMA, the Coast Guard, CBP, CIS, ICE, TSA, and the Secret Service - shows that they testified 25% more often outside of the House and Senate homeland security committees (55.9% of appearances) than before them (44.1 %). The Coast Guard alone testified almost four times as often outside of the homeland security committees (37) than before them (I 0). The experiences of these agencies in Congress are compelling evidence that these policy and functional areas were active battlegrounds. In contrast, the operational components and agencies of DOD and DOT testified two to three times as often before their respective committees of primary jurisdiction.

Recall the basic reference point of "committees of primary jurisdiction." In the case of DHS, these committees are the House Committee on Homeland

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Security (CHS) and Senate Committee on Homeland Security and Governmental Affairs (HSGAC). By cross-referencing the battleground issues that involve DHS with the committee jurisdictions in the House and Senate Rules, a few key competitors emerge. In the House, DHS officials repeatedly testified before the Judiciary, Oversight and Government Reform, and Transportation and Infrastructure (T &I) Committees. In the Senate, the most frequent competitors for DHS officials' time outside of HSGAC were the Commerce, Science, and Transportation (CS&T) and Judiciary Committees. DHS officials testified before the Judiciary Committees 27 times; 23 of these hearings related to immigration policy per the committees' jurisdictions in House Rule X and Senate Rule XXV.

Having explored the complex battlegrounds on which DHS is fought over, and the many committees that compete with the House and Senate homeland security committees, the focus now turns to solutions. What jurisdictional changes can reverse the fragmentation that may be diluting the energy and focus of DHS?

V. RECOMMENDATIONS

Jurisdictional consolidation is the key to disentangling DHS. Widespread, ambiguous grants of jurisdiction to House and Senate committees led to fragmented oversight of DHS as the fledgling department took shape. Though "homeland security" was perhaps a novel industry and policy area in the wake of September ll 1

h, the myriad agencies and functions that were amalgamated into DHS were not. Long-standing jurisdictions over legacy agencies and policy areas, such as the Coast Guard and immigration policy, remained generally verbatim in House Rule X and Senate Rule XXV, and have changed little into the 11 !th

Congress. The creation of the House Committee on Homeland Security (CHS}, and the superficial addition of "Homeland Security" to the Senate Governmental Affairs Committee (HSGAC), carried with them "new" jurisdictions that were more negative than positive. Often, the rules are clearer about what the homeland security committees don't have jurisdiction over than what they do. Undoubtedly, existing committees largely prevailed in preserving their previous jurisdictions at the expense of these new (CHS) or "improved" (HSGAC) committees.

This arrangement creates two primary results. First, the House and Senate homeland security committees exert limited jurisdiction over DHS. In particular, Senate Rule XXV and Senate Resolution 445 (in the 1081

h Congress) specifically restrict HSGAC's ability to oversee the Coast Guard, CBP, CIS, ICE, the Federal Law Enforcement Training Center, the Secret Service, and TSA. Second, over seven dozen committees and subcommittees can lay claim to some element of DHS through their closely guarded grants of jurisdiction. That these jurisdictions are guarded by committees in the name of informational efficiency, and not self­ interest, is endemically questionable.

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Balunis and Hemphill: Escaping the Entanglement II

Again, efficiency must be the guiding star. While recogmzmg the considerable expertise and networks of the Transportation and Judiciary Committees in some matters related to homeland security, it is reasonable to expect that the House and Senate homeland security committees exert primary oversight over DHS. To reverse the accelerating trend of fragmented oversight, jurisdiction over the following areas must be consolidated, in whole or in part, into CHS and HSGAC:

HSGAC (Senate) Transportation security v. safety Natural disaster management Immigration Access to DHS Senior leadership Counter-terrorism

CHS(House) Natural disaster management Immigration Departmental managementladmin Access to DHS Senior leadership

These changes may require complex revisions to the jurisdictions in House Rule X and Senate Rule XXV. Substantively speaking, these changes should include the following:

Transportation Security v. Safety: Jurisdiction over transportation security is far less fragmented in the House than in the Senate. In the II 01

h Congress, CHS conducted 63.2% of the hearings where TSA officials testified; in contrast, HSGAC held only 37.5% of the hearings involving TSA. In House Rule X, a clear division exists between jurisdiction over "transportation safety" (held by T&l) and "transportation security" (specifically given to CHS). As a result, TSA is protected from the hyper-fragmentation that plagues other DHS agencies in the House. But no such division exists in the Senate. Senate Rule XXV explicitly restricts HSGAC's ability to oversee TSA, in favor of CS&T. Given the significant contribution of TSA to homeland security, these jurisdictional limitations on HSGAC are unreasonable and hazardous. A homeland security committee that cannot oversee the operational agencies of DHS will struggle to exert influence of any consequence over homeland security. The House' s formal distinction between transportation security and safety is a successful approach that can be incorporated into the Senate Rules. Jurisdiction over transportation security should be granted to HSGAC; transportation safety should be retained by CS&T. Neither committee should be barred from overseeing TSA.

Natural Disaster Management: In the House, jurisdiction over " federal management of emergencies and natural disasters" could be transferred from T &I to CHS. This change would recognize the growing expertise of DHS with respect to natural disasters, and mitigate the diffuse oversight of FEMA (the DHS agency appearing most often before the 1101

h Congress). However, T&l's expertise in natural disaster management is considerable, and perhaps unparalleled; as a model of incremental jurisdictional growth over many years, T&l has aggressively

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asserted its jurisdiction over FEMA in the past few years, most recently in its proposal to extract the agency from DHS and return it to Cabinet-level status (T&I, 2009). Reforms emphasizing infonnational efficiency need not occur to the singular advantage of the homeland security committees. From an efficiency perspective, extracting FEMA from DHS underscores T&I's strong foundation in natural disasters. If nothing else, with its departure from DHS, FEMA would bring with it much of its continuing congressional scrutiny. In the Senate, the same jurisdiction (which is not currently awarded to any committee per Senate Rules) should be given to HSGAC. In Senate Rule XXV, the closest jurisdiction otherwise given regards pollution and environmental policy, which is given to the Committee on Environment and Public Works (E&PW). The limited connection of these areas to natural disasters will ensure that the efficiencies and expertise of E&PW, which held no hearings to date on natural disasters or emergency management in the II 01

h Congress, will not be lost by the change.

Immigration: The immigration agencies in DHS are constantly in the cross-fire of the House Homeland Security and Judiciary Committees. In Senate Rule XXV, the insulation of immigration agencies from HSGAC inhibits its oversight of immigration issues. In both houses, jurisdiction over immigration should be split between the homeland security and judiciary committees. The homeland security committees should gain explicit jurisdiction over "border and interior enforcement of immigration laws" and "border and port security"; House and Senate Judiciary should retain jurisdiction over "administration of naturalization and citizenship programs, and policies relating thereto." This bifurcation resembles the effective distinction between transportation security and transportation safety in the House. In the same way that TSA is "protected," this common-sense change will reverse the jurisdictional fragmentation over Coast Guard, CBP, CIS, and ICE, while preserving the pertinent immigration expertise of the House and Senate Judiciary Committees.

Departmental Management/Administration: In the House, the Oversight and Government Refonn (O&GR) Committee has assertively scrutinized the internal management of DHS, on issues ranging from SBINet to Deepwater to cybersecurity to Hurricane Katrina. The Senate offers a perhaps ideal model for oversight of the management and administration ofDHS; conveniently, homeland security was added to the mandate of the Senate Committee on Governmental Affairs, whose function closely resembles O&GR in the House. This arrangement maintains an intense level of scrutiny and oversight of departmental administration in the Senate, while minimizing the redundant (and, at times, contradictory) supervision that comes from CHS and O&GR in the House. Though O&GR's jurisdiction under House Rule X includes the economy, efficiency, and management of executive departments and agencies, its access to

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DHS officials should not be unlimited. Specific limitations in House Rule X should clearly delineate which DHS agencies and officials O&GR has access to.

Access to Senior PHS Leadership: The effects of hyper-fragmented oversight remain a steady drain on the precious time, energy, and resources of DHS' top leadership. Amidst the high stakes of homeland security, unnecessary distractions should be minimized. The House and Senate should incorporate specific restrictions into their rules on which committees have access to which DHS officials. Certain committees do have legitimate needs to call forth the Secretary, Deputy Secretary, Undersecretaries, Assistant Secretaries, and agency heads. Others don't. Clear limitations, codified through formal rules changes or chamber-specific resolutions, will reduce the demands on DHS while maintaining the relevant jurisdictional networks among a handful of committees.

Counter-terrorism: Again, the House Rules present a successful jurisdictional model for counter-terrorism that should be adopted by the Senate. Senate Rules should clearly assign jurisdiction over "counter-terrorism" or "preparedness and response to terrorism" to HSGAC, as is granted to CHS in the House Rule X. This policy area is not explicitly awarded elsewhere in the Senate, and can be granted to HSGAC so as not to impact the expressed jurisdiction of another committee. Furthermore, the restraints in Senate Resolution 445 against HSGAC oversight of the Coast Guard, TSA, and Secret Service should be lifted in recognition of their critical role in counter-terrorism operations.

These changes alone will not eliminate the challenges facing DHS. However, they are the core of jurisdictional change needed to repair the precariously complex oversight of the department. These issues, more than any other, constitute that battleground on which DHS continually struggles amidst skirmishing committees.

Potential for reform does not lie exclusively within Congress. From the beginning, the cohesion and compatibility of numerous agencies and functions within DHS has been questioned. Reforming DHS itself, and streamlining its many components into a leaner department, may be easier than overcoming jurisdictional inertia in Congress. This approach to a solution dates back to the origins of the department. Indeed, structural consolidation within DHS may alleviate the jurisdictional fragmentation experienced by the department among so many congressional committees. However, this study is an attempt to get beyond the ongoing - but salient - debate over DHS itself, and focus the same level of specificity on Congress in developing concrete, realistic proposals for reform.

VI. IMPLEMENTING CHANGE

The "how" of reform is as important as the "what." As Thomas Mann noted, "Congressional history is littered with the failure of jurisdictional reform" (2003). Political realism must inform any meaningful attempt to consolidate jurisdiction

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over DHS. With committee jurisdiction often comes great power and influence over a given sphere of public policy. As a result, turf is closely defended and fiercely fought over. Changes, including the total abolishment of a committee, are therefore extremely difficult to broker. Given the zero-sum nature of committee jurisdiction, creating new committees may be as, if not more, challenging.

Jurisdictional fragmentation and turf battles are almost as old as the committee system itself. Throughout American history, leaders have emerged with grandiose schemes to tame and streamline the committee system. The 1946 Legislative Reorganization Act (LRA) was perhaps the most drastic change to the committee structure - 47 committees were abolished, and several new ones were created (King, 1997).

However, the LRA was a rare bout of housecleaning. The fate of the Bolling Committee in 1974 was much more typical; bold recommendations for jurisdictional change and new committees were watered down or subverted by alternative "reforms" that merely reinforced the fragmented status quo (see, e.g. Schneider et al, 2003; Koempel, 2007). This is why there is no dedicated energy committee in the House to this day. This is why the addition of "Homeland Security" to "Government Affairs Committee" in the Senate was arguably more cosmetic than substantive. Efforts to reintroduce informational efficiency as a dominant principle have often been undermined, overtly and covertly.4 While each of these reform efforts precipitated some change in committee organization or rules, their results fell far short of original expectations and intent.

This is the central challenge: Taking proposals for jurisdictional change and escaping an obituary, escaping the fate of so many heralded, deflated reforms. Although political resistance is great, institutional inertia is significant, and committees stand to lose much when jurisdiction is lost, important changes have nonetheless occurred. It has been done. Congressional history may be heavily littered with the failure of jurisdictional reform, but there have been rare successes.

How? The "right" answer is statutory reforms to the House and Senate Rules. Although both houses have passed their initial rules for the 111 1

h Congress, they continue to be living documents. Acknowledging the substantial political resistance and institutional inertia that opposes changes to committee jurisdictions, leaders in both houses should recognize that the ongoing hyper-fragmentation of DHS oversight is abnormal. Recall the experience of the Departments of Defense

4 Bold but largely ineffective attempts at congressional refonn in the last forty years have included: Joint Committee on Congressional Operations ( 1970); House Select Committee on Committees (1973-1974); Senate Commission on the Operation of the Senate (1975-1977); Select Committee to Study the Senate Committee System (1975-1977, 1977-1979, 1983-1985); House Commission on Administrative Review (1976-1977); House Select Committee on Committees ( 1979-1980); Study Group on Senate Practices and Procedures ( 1981-1983, 1983-1985); Joint Committee on the Organization of Congress (1991-1994).

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(DOD), Energy (DOE), and Transportation (DOT). On average, these departments answered to 37 committees and subcommittees; DHS answered to 95. DHS officials testified at 374 hearings, more than DOD (261) and DOE (104) combined. Less than half (49.7%) of the hearings before which DHS officials testified were before their committees of primary jurisdiction, CHS and HSGAC. On average, DOD, DOE, and DOT testified before their primary committees 54.3% of the time. Recalling the examples of DOD and DOE, these numbers affirm the enduring effectiveness of those statutory reforms that created those departments' respective committees of primary jurisdiction (Koempel, 2007).

This disparity illustrates the complex web of oversight that awaits DHS on Capitol Hill, but it must also motivate the drive to consolidate congressional jurisdiction over the department. Formal changes to the House and Senate Rules will provide the most immediate and effective means to restore order to the oversight of DHS. To this end, the stewardship and support of the Speaker of the House and Senate Majority Leader are imperative. Speaker Pelosi's creation of the Select Committee on Global Warming and Energy Independence, a victory over powerful interests in the automobile industry, is an encouraging example of what determined leadership can overcome.

The alternative approach? The more likely and more problematic path towards consolidation is continuing battles for jurisdiction between committees. Known as "turf wars" or "common law" change, committees achieve jurisdictional gains through bill referrals and sustained policy entrepreneurship (i.e. hearings, bill draftsmanship, lobbying of parliamentarians) (King, 1997). Through efforts to build expertise and acquire referrals of contested legislation, committees incrementally broaden their de facto jurisdiction over policy areas. The concurrent evolution of the House T&l and Senate CS&T Committees along with DOT, as well as House Energy and Commerce's expansion after the creation of DOE, represent enduringly successful campaigns to amass new jurisdiction over fledgling departments. These case studies provide valuable templates for CHS and HSGAC to emulate in consolidating their oversight of DHS.

However, the turf war method is largely at fault for the current state of fragmentation. The homeland security industry emerged, a new department was created, and scores of congressional panels immediately asserted themselves. Hoping to preempt the need for a new, standing homeland security committee in either House or Senate, committees in both chambers sought to expand their portfolios as the rightful congressional stewards of DHS. They failed in the House, and were somewhat successful in the Senate. Regardless, Congress' historical tendency toward fragmentation has reached a new extreme. While endless common law change to jurisdiction may present one method for consolidating control, this sword has as many sharp edges as there are committees.

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Turf wars are a fact of life in the Congress. While they are a game that the homeland security committees may have no choice but to play, statutory reforms are the ideal approach. Still in its first months, the 111 th Congress should revisit its rules and focus on the core battleground issues that mire DHS on Capitol Hill.

VII. CONCLUSION

As a newly-formed organization, stitched together from nearly two dozen federal agencies and offices, the Department of Homeland Security (DHS) was bound to encounter difficulties. Aggravating this were the unresolved organizational issues of many constituents of the young DHS. Component agencies continue to perform non-homeland security functions or maintain legacy cultures. These chronic issues are intertwined with a congressional oversight structure that is dangerously fragmented. With so much time and effort expended on Capitol Hill, DHS' senior leadership remains distracted in its efforts to manage and integrate the young department. Fragmentation, a term used frequently in this article to characterize the multitude of congressional panels that have exerted jurisdiction over DHS, may ferment into redundant or contradictory guidance to DHS agencies. That this might further impact the execution of DHS missions is a troubling prospect.

Jurisdiction over DHS must be consolidated. Although structural changes to DHS may be warranted, and may be effective in alleviating fragmentation, the focus should remain equally on Congress. The creation of the House Committee on Homeland Security and Senate Homeland Security and Governmental Affairs Committee was a positive step towards consolidation, but these committees continue to struggle for primacy in all things homeland security. Case studies of the Departments of Defense, Energy, and Transportation, and their respective oversight committees, have revealed that DHS' experience with fragmentation has been unusual, but not unfamiliar. These departments demonstrate several successful models of jurisdictional evolution and consolidation.

Identifying the issues and agencies most in contention has illuminated potential areas for jurisdictional change. Among considerations for reform, informational efficiency must be foremost. Areas such as natural disaster management, immigration, counter-terrorism, and transportation security represent major jurisdictional faultlines within the rules of Congress. Resolving these divisions and ambiguities, while preserving existing expertise, will minimize the negative effects of fragmentation on DHS. But reform is almost always easier said then done. Through concurrent strategies of statutory reform and common law change, political and institutional barriers to reform can be surmounted. The support and partnership of congressional leadership will be necessary in doing so.

The national response to the September 11th attacks demonstrated how significant, positive change can be achieved when consensus is mobilized. Today,

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consensus is again growing to reform a jurisdictional structure in Congress that threatens the vitality of the Department of Homeland Security. Now is the time.

REFERENCES

Chertoff, Michael. "DHS Memorandum to The Honorable Peter King, Committee on Homeland Security." 4 September 2007.

House Resolution 5 (H Res. 5), One Hundred Eleventh Congress, 5 January 2009.

Johnson, Charles W. Hearings on Perspectives on House Reform: Lessons from the Past. Testimony before House Select Committee on Homeland Security. 19 May 2003.

Kean, Thomas H. and Lee H. Hamilton (vice chair) et al. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States. New York: W.W. Norton and Co., 2003.

King, David C. Turf Wars: How Congressional Committees Claim Jurisdiction. Chicago: University of Chicago Press, 1997.

Koempel, Michael L. "Homeland Security: Compendium of Recommendations Relevant to House Committee Organization and Analysis of Consideration for the House, and 1091

h and 1101 h Congresses Epilogue." Congressional

Research Service. Report RL32711. 2 March 2007.

Mann, Thomas E. Hearing on Perspectives on House Reform: Lessons from the Past. Testimony before House Select Committee on Homeland Security. 19 May 2003.

Margetta, Rob. "New Quest for Authorization Bill May Again Fall Prey to Fragmentation." Congressional Quarterly Today. 28 Jan 2009.

Rules of the United States House of Representatives: One-Hundred Tenth and One Hundred Eleventh Congress. Washington, D.C.

Schneider, Judy, Colton Campbell, Christopher Davis, and Betsy Palmer. " Reorganization of the Senate: Modern Reform Efforts." Congressional Research Service. Report RL32112. Washington. 15 October 2003.

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"Senate Commerce, Science, and Transportation Committee: History." Senate Commerce, Science, and Transportation Commillee website. <http://commerce.senate.gov/public/index.cfm?FuseAction=About.Histor y> [I 0 March 2009].

Senate Resolution 445 (S. Res. 445). One Hundred Eighth Congress, 2"d Session. 9 October 2004.

Standing Rules of the Senate: One Hundred Tenth and One Hundred Eleventh Congress. Washington, D.C.

Strohm, Chris. "Homeland Security Authorization Bill Falls by the Wayside." Congress Daily. 24 September 2008. <http://www.govexec.com/dailyfed/ 0908/092408cdaml.htm> [14 May 2009].

"T&I Leaders Introduce FEMA Independence Bill." House Transportation and Infrastructure Commillee website. Press Release. 25 February 2009. <http://transportation.house.gov/News/PRArticle.aspx?NewsiD=835> [27 February 2009].

Vlahos, Kelley. "Consolidating Congress." Homeland Security Today. March 2009. < http://www.hstoday.us> [8 June 2009].

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