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Congressional Investigations Outlook in the 117th Congress

November 12, 2020, Covington Alert

Even as state and local officials continue to tally votes, the overall results of the 2020 elections are now largely clear, with a Democratic administration, Democratic control of the House, and a closely divided Senate. In this client alert, we assess the likely impact of those results on the investigative agendas of key House and Senate committees, while highlighting ongoing litigation that could significantly impact the shape of congressional investigations in the new Congress and beyond.

With both chambers nearly evenly divided, and the parties in sharp disagreement on seemingly every substantive policy issue, major legislative action in the 117th Congress is far from certain. Similarly, assuming Republicans maintain their slim majority in the Senate, the era of divided government in Washington will continue. In recent years, leaders in Congress have increasingly turned to oversight and investigations as a way to affect policy, particularly by jawboning companies to implement corporate policy changes that Congress was unable to achieve through legislation. At a high level, we expect this trend to continue in the new year, and we anticipate investigative efforts to continue to escalate across Capitol Hill. The change in administration, however, will have significant implications for the investigative agendas on both sides of the Capitol.

At the same time, pending litigation challenging the ability of investigators on Capitol Hill to compel private parties to comply with requests for documents and testimony has the potential to reshape dramatically the landscape for those facing congressional investigations.

House Investigative Agenda

In 2018, Democrats swept to power in the House promising a new wave of investigations and oversight. In the two years that followed, they have more than delivered. Even setting aside oversight focused on the Administration and the impeachment of President Trump, the pace of investigations in the 116th Congress was higher than we have witnessed in at least a decade. Beyond this increased pace, a hallmark of the last two years was the breadth of investigative activity in the House. In addition to mainstays like the Oversight and Reform Committee and Energy and Commerce Committee, numerous House committees launched major investigations focused on private parties. As a result of this increased activity, Speaker Nancy Pelosi (D-CA) now leads a Democratic majority that, while diminished, wields extensive oversight experience, seasoned and dedicated oversight staff, and a robust investigatory agenda.

Though House Democrats will no doubt find the Biden-Harris Administration a less appealing target, we do not anticipate the pace of House investigations to slow in the new Congress. Rather, the change in administration will simply change the type of investigations pursued by key House committees. For example, in the early years of the Obama Administration, the Democratic House demonstrated less interest in conducting oversight of the executive branch. At the same time, key House committees continued to conduct investigations targeting the private sector. In an unmistakable parallel to the current COVID-19 crisis, many of those investigations focused on the federal response to the 2008 financial crisis and the use of federal stimulus funds in the ensuing years.

This likely shift in focus notwithstanding, the picture in the House is largely one of stability. After prevailing in a leadership fight following the death of late Chairman Elijah Cummings (D-MD), Chairwoman Carolyn Maloney (D-NY) appears poised to remain in control of the increasingly influential House Oversight Committee. On the other side of the dais, former Ranking Member Jim Jordan (R-OH) departed in July, leaving Representative James Comer (R-KY) as the lead Republican on the Committee.

The Oversight Committee was among the most active investigative committees during the 116th Congress, and we expect that trend to continue. Among other topics, the Committee has undertaken wide-ranging investigations of pricing practices in the pharmaceutical industry and election-related issues, while focusing more recently on the completion and submission of the 2020 census. Meanwhile, following its creation in April, the Select Subcommittee on the Coronavirus Crisis has moved aggressively to pursue a number of inquiries into the pandemic response, including investigations targeting vaccine development, COVID treatments, medical devices, PPE shipments, and more.

With few leadership or staff changes expected in the new Congress, we expect the work of the Oversight Committee and its Select Subcommittee to proceed largely unaltered. In particular, even under a Biden-Harris Administration, the Committee’s focus on the federal response to the pandemic will likely continue. Already, the Committee has begun to investigate the use of CARES Act funds, and—as with the investigations arising from the 2008 Emergency Economic Stabilization Act and the 2009 Recovery Act—we expect many more investigations related to the use of CARES Act funds in the new Congress. Likewise, with the nation’s COVID-19 response set to extend into 2021, we expect the Select Subcommittee to continue launching investigations well into the new year. At the same time, we expect junior Committee members like Representatives Alexandria Ocasio-Cortez (D-NY), Ro Khanna (D-CA), and Katie Porter (D-CA) to continue to play an outsized role in shaping the Committee’s investigatory agenda and oversight hearings.

Elsewhere in the House, committees with active investigative agendas will likely continue to pursue those efforts in the 117th Congress. For example, under the leadership of Chairwoman Maxine Waters (D-CA), the Financial Services Committee will likely prioritize investigations regarding regulatory compliance, consumer protections, eviction protections, and oversight of the Paycheck Protection Program (PPP) loan program. Likewise, building on the Committee’s long-running investigation of competition in the tech sector, we expect the Judiciary Committee to explore similar issues in other sectors. The Energy and Commerce Committee will likely continue to pursue oversight of the government’s and industry’s response to the pandemic, including vaccine development.

Senate Investigative Agenda

Following President-elect Biden’s inauguration in January, look for the Republican-controlled Senate (assuming that is the outcome of the Georgia runoff elections) to ramp up investigations targeting the new administration, including corporations and individuals associated with controversial administrative action. However, term-limit rules within the Republican Conference will bring significant changes to major investigative committees.

For example, Senator Rob Portman (R-OH) is poised to take over as the senior Republican on the Homeland Security and Government Affairs Committee, replacing term-limited Chairman Ron Johnson (R-WI). As the current Chairman of the Committee’s Permanent Subcommittee on Investigations, Portman has substantial oversight experience. Recently, the Subcommittee has focused on issues including foreign government involvement in domestic industries (e.g., telecommunications) and American society, with a particular focus on China. As the lead Republican on the full Committee, we expect Chairman Portman to bring this investigative experience to the Committee’s broader jurisdiction, which encompasses the Department of Homeland Security, immigration, and trade issues. Look for investigations related to the Biden Administration’s interactions with China, which could implicate private parties with relationships with Chinese business interests and others impacted by trade deals and other bilateral or multilateral negotiations. For his part, Chairman Johnson will likely replace Chairman Portman as the lead Republican on the Permanent Subcommittee on Investigations and has signaled his intention to continue investigations into the origins of the Russia probe and Hunter Biden. This could suggest a more partisan bent for a Subcommittee that has historically pursued its investigations on a bipartisan basis.

Similarly, current Finance Committee Chairman Chuck Grassley (R-IA) is expected to return to his prior role as Chairman of the Senate Judiciary Committee. While Chairman Mike Crapo (R-ID) is next in line to take over as chairman of the Finance Committee, he may choose to remain as Chairman of the Banking Committee. If Chairman Crapo does go to the Finance Committee, Senator Pat Toomey (R-PA) is the next most likely chairman of the Banking Committee. The Finance Committee has broad authority over government health care programs and tax issues, and Chairman Grassley has in the past pursued investigations focused on drug pricing and other issues in the health care sector. Particularly in the context of a Biden Administration, the Committee will likely become more aggressive in its efforts to investigate the COVID-19 response, potentially opening the door to parallel House and Senate inquiries targeting the same or similar parties. On these issues at least, continued bipartisan cooperation could present additional risk for private parties implicated by those investigations.

Among the Democrats, even in a marginally expanded minority, the lack of term limits for committee leaders likely will result in few changes in key oversight committees. For example, after prevailing in a close re-election contest, Senator Gary Peters (D-MI) is likely to retain the top Democratic spot at the Homeland Security and Governmental Affairs Committee.

While there will be relatively little turnover among Democratic leaders in other Senate committees, watch for individual members to pursue their own investigations. In particular, high-profile Senators angling for party leadership positions or preparing for a future White House run may initiate investigations of their own as a means of raising their profile on the Hill and beyond. Where possible, these Senators may partner with willing Republicans or colleagues in the House to bring added heft to their investigations. In past years, Chairman Grassley, Senator Ron Wyden (D-OR), who is the lead Democrat on the Finance Committee, Senator Elizabeth Warren (D-MA), Senator Bernie Sanders (D-VT), and others have conducted their own investigations apart from any formal committee structure. We anticipate that this trend will 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.

Uncertainty Regarding Congressional Subpoena Power

As we have discussed in greater detail elsewhere, as congressional investigators in the House begin to sketch out their priorities for a new Congress, pending litigation in the U.S. Court of Appeals for the District of Columbia Circuit holds significant implications for their ability to compel cooperation with their investigations.

The case, Committee on the Judiciary v. McGahn, arises out of the House Judiciary Committee’s effort to seek civil enforcement of a subpoena issued to former White House Counsel Don McGahn for testimony in the Committee’s impeachment inquiry of President Trump. In late August, a three-judge panel concluded that federal law provides no cause of action for House committees seeking civil enforcement of subpoenas issued pursuant to Congress’s oversight authority. Lacking the express cause of action afforded to their counterparts in the Senate, House committees have historically relied on district court precedent recognizing an implied cause of action permitting them to seek civil enforcement of their subpoenas. At least for the moment, however, the D.C. Circuit has called that precedent into question, perhaps leaving House investigators with no ability to compel compliance other than criminal contempt proceedings or Congress’s own “inherent contempt” authority.

In October, the D.C. Circuit agreed to rehear the case en banc, with oral argument in the case set for February 23, 2021. Sitting en banc, the Circuit has already reversed an earlier decision by the same panel that likewise favored McGahn’s efforts to resist enforcement of the subpoena, and there is some reason to believe that congressional investigators will prevail again before the full court.

Interestingly, however, the D.C. Circuit may instead be laying the groundwork for disposing of the case without offering a definitive ruling on the scope of Congress’s subpoena enforcement authority. In its en banc order, the Court vacated the panel decision and directed the parties to submit additional briefing regarding whether the case would become moot "when the Committee's subpoena expires upon the conclusion of the 116th Congress." This could signal that at least some judges are inclined to dismiss the case while leaving for another day the dispute over whether House committees may seek enforcement of their subpoenas in federal court. Regardless of the ultimate outcome, however, the case will continue to offer important insight into the scope of Congress’s oversight authority, as well as congressional investigators’ ability to require parties to cooperate with their investigations.

In the meantime, a group of House Democrats have proposed changes to the House rules to formalize the process by which the House may exercise its inherent contempt authority. Most notably, the proposed rules would provide for a penalty of up to $100,000 for failure to comply with a duly issued House subpoena. While the proposal’s proponents have framed their efforts as a means of reigning in an unruly executive branch, private parties who find themselves in the crosshairs of congressional investigators would do well to monitor these proposals and any other relevant rules changes in the new Congress.

Covington & Burling’s Congressional Investigations Practice

Covington has unparalleled experience representing corporations and individuals in congressional investigations. Our experiences span the full scope of investigations—from discrete requests resolved with little public attention, to some of the most high-profile and contentious investigations and oversight hearings posing significant legal and reputational risks for global companies. We frequently engage with the key congressional investigations staff, with whom we have many years of experience. Major corporations regularly turn to us to prepare their chief executive officers and other senior executives for congressional investigations testimony.

In so doing, we draw on the firm’s significant experience in white collar litigation, public policy, political law, and specific regulated industries. Our lawyers are particularly adept at balancing the risks associated with parallel congressional investigation, civil and criminal litigation, and regulatory enforcement actions. Our practitioners include veterans of the House and Senate, the White House, and numerous federal agencies, on a bipartisan basis, including former senior staff and Members of Congress who have run congressional investigations.

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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