Chafetz on the Nye Committee, Army-McCarthy Hearings and Congressional Overspeech

Josh Chafetz, Cornell Law School, although as of this summer my colleague at Georgetown Law, has posted Congressional Overspeech, which is forthcoming in the Fordham Law Review:

Political theater. Spectacle. Circus. Reality show. We are constantly told that, whatever good congressional oversight is, it certainly isn’t 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.

Gerald Nye (R-ND) (LC)

After briefly describing the authority, tools and methods, and consensus understanding of oversight in Part I, the 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 [Nye] 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 normatively ambivalent political projects. Overspeech is a potent congressional tool—and, like all tools, it can be put to a variety of uses.

--Dan Ernst