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This edition of Policy Matters provides an overview of the congressional oversight process and agenda, which has renewed relevance in the narrowly divided 118th Congress.
All signs point to the 118th Congress – which commenced in January – being the “Congress of Oversight.” Its impact won’t just be felt on Capitol Hill or inside the Washington Beltway; this congress stands to make its mark in the virtual public square: in the board room, the break room, the court room and the court of public opinion.
With the slimmest of majorities for both parties between the two chambers – Democrats control the Senate by one vote, Republicans the House by five – prospects for anything more than must-pass legislation are slim. Even advancing partisan “message bills” has already encountered hurdles in the House.
With a fractured, increasingly partisan media landscape, an electorate brimming with uncertainty about the economy and democracy and the already-looming 2024 elections, members of Congress will play to their bases. In the House in particular, their focus will be a dual oversight and investigatory mandate. The Biden-Harris administration is already starting to feel the heat, but soon nearly every sector of our economy – from financial services to healthcare and education to technology – may be swept into the vigorous focus of so-called accountability politics.
Congressional oversight is by its very nature media-centric. Its effectiveness is measured by members’ ability to drive the news cycle and draw public attention.
Republicans have thus put some of their most controversial and outspoken members on the House Oversight and Accountability Committee, signaling a combative approach. Oversight is also reactive to media coverage. High-profile headlines and a public outcry can rapidly result in televised congressional hearings – as they did recently for Ticketmaster.
Oversight investigators have several tools at their disposal, including document requests, public hearings and closed-door depositions. Committees frequently issue the findings of their investigations through white papers or reports, which may propose specific legislative changes needed to address identified problems.
Perhaps the most important tool is the authority to issue subpoenas. A congressional subpoena legally requires the recipient to comply with a request for testimony or specific documents (e.g., financial records, email correspondence, etc.). Refusing to comply with a subpoena is a criminal offense, resulting in the recipient being held in contempt of Congress.
Notably, corporations and other organizations may find themselves in the crosshairs of the parties’ divergent accountability agendas, as Democrats seek to address perceived economic, social and political inequities and Republicans investigate “wokeness” in corporate America and the federal government.
Here are a few key insights on the oversight outlook, followed by a brief explanation of Congress’s “power of inquiry.”
White House in the hot seat
After two years focused on promoting its legislative agenda, the White House now finds itself switching from offense to defense. A thinner-than-expected majority has not deterred Republicans from launching a partisan investigation into the Biden family’s business dealings, attempting to rebrand it “the Joe Biden investigation.” But so far the biggest political headache has come from the president’s own potential mishandling of classified documents, which have been discovered at his office and Delaware home in a series of searches conducted by federal investigators. Attorney General Merrick Garland has appointed a special counsel to lead the probe, as in the case of former President Trump. In recent days, lawyers for former Vice President Mike Pence also identified classified materials in his possession. Now, the Senate Intelligence Committee is fighting for information on all classified documents held by Biden, Pence and former President Trump.
Tech a high priority on everyone’s list
Democrats and Republicans both list reigning in large tech companies a top issue, but their motives and aims remain different. While Democrats push tech companies to do more to combat abuse and misinformation, Republicans are fighting against social media censorship. Rep. Jim Jordan (R-Ohio) is leading a new Judiciary Committee panel that will investigate whether government officials are influencing alleged social media suppression. And spurred by Elon Musk’s release of internal company documents, the House Oversight and Accountability Committee has called on former Twitter executives to testify. Meanwhile, following the spectacular collapse of crypto giant FTX, House Financial Services Committee Chairman Patrick McHenry (R-N.C.) has created the first ever subcommittee focused specifically on overseeing and regulating the cryptocurrency industry.
SEC’s ESG rulemaking faces conservative pushback
Conservatives are expected to leverage their new oversight authority to push back against ESG-related rulemaking from the Securities and Exchange Commission (SEC), with an eye on the long-awaited climate disclosure rule to be released this spring. Despite numerous legislative proposals to place a check on what conservatives view as progressive policymaking, a Democratic Senate limits what legislation will advance. House Financial Services Chairman McHenry has also struck a more moderate tone, resisting being labeled as “anti-ESG” and laying out a forceful but targeted approach to the topic. Hearings and oversight will be a way for McHenry to maintain the committee’s focus while satisfying its members; he’s already announced his intention to call SEC Chair Gary Gensler before the panel in the coming weeks.
Continued scrutiny of the government’s COVID-19 response
The federal government’s response to the COVID-19 pandemic will remain a top issue for Congress in 2023. House Republicans have established the Select Subcommittee on the Coronavirus Pandemic to lead the effort, refashioning a Democrat-led panel that issued its final report last year. The GOP panel’s sweeping mandate covers topics ranging from the origins of the virus to vaccine development to school closures. That broad scope, coupled with subpoena power to compel testimony and document sharing, means the investigation can be expected to touch an array of public health-related issues, including National Institutes of Health (NIH) and Centers for Disease Control and Prevention (CDC) leadership, research and development funding and drug safety and efficacy. The panel will also investigate waste, fraud and abuse in the $5 trillion spent on pandemic relief since 2020.
Senate Democrats also expanding oversight efforts to support policy priorities
Republicans aren’t the only party with expanded oversight power following November’s election. Democrats now hold an outright majority of 51 seats in the Senate, no longer working under a power-sharing agreement in an evenly divided chamber. That means committee chairs can unilaterally issue subpoenas. Majority Leader Chuck Schumer (D-N.Y.) announced Democrats’ intention to focus on corporate corruption, inequity and other societal challenges. Sen. Bernie Sanders (I-Vt.), the new chair of the influential Senate Health, Education, Labor and Pensions (HELP) Committee, is expected to aggressively leverage his oversight powers to advance his chief policy priorities, including drug pricing and workers’ rights.
Bipartisanship possible on growing concern over competition with China
While many oversight issues break along party lines, concerns over the growing security and economic threat posed by the Chinese government remain bipartisan. In December, Congress banned the China-based social app TikTok from all federal government devices. In January, the House showed overwhelming, bipartisan support (365-65) for the creation of the Select Committee on Strategic Competition Between the United States and Chinese Communist Party (CCP). Led by Rep. Mike Gallagher (R-Wisc.), a former Marine intelligence officer, the committee will highlight both immediate counterintelligence risks and issues of long-term global competitiveness. In the Senate, Intelligence Committee Chairman Mark Warner (D-Va.) has been a leading voice on the CCP’s counterintelligence threat – an issue heightened by Russia’s invasion of Ukraine. The discovery of a Chinese spy balloon over the U.S. may have dominated headlines, but Washington is also taking substantive steps on several fronts to review and expand export restrictions seemingly aimed at disrupting China’s tech sector, including striking a deal with Japan and the Netherlands to limit exports of advanced semiconductor manufacturing equipment to China.
What is congressional oversight?
Under its “power of inquiry,” Congress has broad, sweeping authority to conduct investigations and obtain information from government and the general public in order to make appropriate and effective laws.
This power was considered so inherent to any legislative body’s ability to do its job that it was not explicitly written in Article I of the U.S. Constitution. Instead, it remains an implied power. The Supreme Court has upheld Congress’s oversight authority repeatedly in notable rulings throughout the years.
How does Congress conduct oversight and investigations?
Today, oversight is primarily carried out by committees. Each standing committee in the House and Senate has the authority to conduct oversight on the issues under its jurisdiction and some have established subcommittees solely for that purpose. Two notable committees, however, play comprehensive roles:
What are the limitations of congressional oversight?
Congress’ oversight authority is broad, but not unlimited. A few things to know:
First, Congress is not a law enforcement agency and does not have the authority to prosecute or try individuals. Any criminal violations Congress uncovers during its investigations should be referred to the Justice Department, which decides whether to prosecute.
Second, its oversight interests must be related to its legislative function, meaning whether existing laws are effective or new laws are needed. The scope of what could inform future legislation is so far-reaching, however, this question is rarely raised.
Third, the president or an Executive Branch official may attempt to refuse to share information with Congress by citing “executive privilege.” Most commonly, executive privilege claims seek to protect internal Executive Branch conversations or deliberations on the grounds that sharing them would violate the separation of powers. These high-profile disputes – including the fight for President Nixon’s presidential tapes during Watergate and the battle for President Trump’s tax returns – are litigated through the courts on a case-by-case basis.
Powell Tate can help clients understand, prepare for and engage around issues related to congressional oversight, whether they find themselves called to testify before a committee or they are simply active on issues adjacent to investigations in the news. We have worked with high-profile companies, C-suite leaders and industry associations to turn oversight into opportunity, control their narrative and protect their reputation. See here for more on our capabilities.