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Outlook for Congressional Investigations After the 2020 Elections

October 29, 2020, Covington Alert

Stability in the Democratic House means more investigations.

  • It appears likely that the Democratic majority will retain control of the House of Representatives. The election stability in the House will translate into few, if any, changes in the leadership of the key committees most consistently involved in congressional investigations. Moreover, the rules of the House Democratic caucus do not impose term limits on committee chairs, contributing to stability.
  • As a result of these factors, we do not anticipate changes in the leadership of House committees that are most active in congressional investigations, including the Oversight Committee (Chairwoman Maloney), the Energy and Commerce Committee (Chairman Pallone), the Financial Services Committee (Chairwoman Waters), and the Judiciary Committee (Chairman Nadler). In addition, we expect the House Select Subcommittee on the Coronavirus Crisis to continue, with Chairman Clyburn continuing to lead the Subcommittee. Additionally, we may see changes in the leadership of some investigative subcommittees.
  • If the Democratic majority retains control of the House, we expect that the committees will continue or expand the types of investigations that they pursued in recent years. These investigations may include the following:
    • The Oversight and Reform Committee, including the Select Subcommittee, will likely pursue investigations into drug pricing and health care access issues (with an increasing focus on COVID testing, treatments, and vaccines), government contracting, consumer protections, the government’s pandemic response, oversight of CARES Act funds, and the census.
    • The Financial Services Committee will likely prioritize investigations regarding regulatory compliance, consumer protections, eviction protections, oversight of the Paycheck Protection Program (PPP) loan program, and small and minority-owned business access to capital.
    • The Judiciary Committee will likely review competition issues across a variety of sectors, immigration enforcement, racial justice, civil rights, and police oversight.
    • The Energy and Commerce Committee will continue to investigate drug pricing and health care access (with an increasing focus on COVID-related issues), Affordable Care Act (ACA) and health insurance plans, surprise medical bills, consumer protections, and climate change.
  • A great wildcard for congressional investigations is the election process and the election outcome. Regarding the election itself, we could see investigations related to ballot access, voter intimidation, disruptions in the Postal Service, and politically active corporations and non-profits. The election outcome will also influence the direction of congressional investigations.
    • If President Trump were to win reelection, we expect a renewed round of investigations related to his taxes, federal spending at Trump properties, and potential conflicts of interest.
    • If Vice President Biden wins the election, Democratic leaders will likely curtail investigations of federal agencies, instead focusing on the private sector, including industries’ interactions with the Trump administration over the last four years.
  • Among Republican leadership, there will be some changes and Members in new roles. At the Energy and Commerce Committee, Representative Greg Walden is retiring, and a number of Members are seeking the Ranking Member position on the Committee. At the Oversight Committee, Representative Jim Jordan’s move to be the Ranking Member on the Judiciary Committee earlier this year, along with the departure of Representative Mark Meadows to be White House Chief of Staff, elevated Representative James Comer as the new Ranking Member on the Committee. Representative Comer took over this role only a few months ago, in the midst of the pandemic, and he will look to build his profile and role on the Committee as Congress, hopefully, returns to normal operations next year.

Term limits will bring changes in the Senate, with the election possibly bringing more.

  • Even without the uncertainties created by this year’s elections, there would be substantial change among the leadership of the Senate committees most often involved in congressional investigations. For example, due to the Republican Conference’s term limit rules, the Senate will see changes in the Republican leadership of the following:
    • At the Health, Education, Labor, and Pensions Committee, Senator Lamar Alexander is retiring, with Senator Richard Burr and Senator Rand Paul as possible successors.
    • Senator Ron Johnson is term-limited at the Homeland Security and Governmental Affairs Committee. Senator Rob Portman is likely to assume the Republican leadership position. Portman, importantly, has significant investigative experience from his service on the Committee’s Permanent Subcommittee on Investigations.
    • Senator Chuck Grassley is term-limited at the Finance Committee, and he will therefore return to the top spot at the Judiciary Committee. The Finance Committee, as a result, will likely be led by Senator Mike Crapo (although he may decide to remain the Republican lead on the Banking Committee).
    • Assuming that Senator Crapo moves to be the top Republican on the Finance Committee, Senator Pat Toomey, who announced that he will not be running for reelection in 2022, is expected to become the lead Republican on the Banking Committee.
  • There will likely be fewer changes among the Democratic leaders of these key committees. Senator Gary Peters is likely to retain the top spot at the Homeland Security and Governmental Affairs Committee, Senator Ron Wyden will almost certainly retain his position at the Finance Committee, and Senator Patty Murray will likely continue to lead the Democratic members of the Health, Education, Labor, and Pensions Committee. Senator Dianne Feinstein would normally be expected to return as the Democratic leader of the Judiciary Committee, but some activists have been rumbling for change because they are unhappy with her handling of the nomination of Justice Barrett to the Supreme Court. Even if those rumblings grow, we do not expect her to step aside lightly . . . or without a fight.
  • The Democratic leaders noted above would likely become the chairs of their respective committees if the Democratic party were to capture control of the Senate. If that were to happen, we expect that some Senators would seek to capitalize on their new roles. For example, if Senator Sherrod Brown were to become the Chairman of the Banking Committee, it would be the first time that he has led the panel since coming to the Senate more than a decade ago, and he could pursue any number of investigations and inquiries. In addition, he may follow some of his predecessors in supporting investigations by individual members of the Committee, such as Senator Elizabeth Warren. Senator Warren has conducted several investigations on her own, using her social and traditional media savvy to bring focus and attention to her priorities.
  • Power in the Senate is notoriously diffused, and individual Senators often launch significant congressional investigations on their own, outside of a committee. Senator Grassley, Senator Wyden, Senator Warren, Senator Bernie Sanders, and others have significant histories of pursuing their own investigations, regardless of their committee roles. We expect this trend to continue and strengthen, particularly as Twitter, Facebook, and other online and media platforms permit elected officials to elevate their individual media messages that would not be noticed otherwise.

If you have any questions concerning the material discussed in this client alert, please contact the following members of our Congressional Investigations practice.

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