Subpoenas at the Ready: The 118^th Congress Is Poised to Investigate

As the 118^th Congress begins, the new House Republican majority is starting to lay out its agenda, which focuses on scrutinizing the Executive Branch and setting the foundation to advance the political and policy objectives of the Republican caucus. The Democratic majority in the Senate, now with a 51-49 one-seat margin, is likely to continue to pursue the policy agenda that helped them hold Democratic seats in the 2022 general elections. Dueling oversight and investigation priorities in the new Congress will mean increased congressional scrutiny for the private sector.

The House of Representatives’ Investigative Agenda

After two years in the minority, the new Republican majority in the House of Representatives is rapidly gearing up for an ambitious oversight agenda. The majority’s oversight priorities aim to rewrite the political and policy narrative advanced by the previous Democratic-controlled House and will contrast with those of the Democratic-Senate.

An energized Republican caucus in the House, with a close eye on the 2024 Presidential election, has made clear it will focus particularly on an Administration that Republicans argue has been left unchecked over the last two years. Republicans in the House also have promised to strengthen federal government accountability by requiring House committees to identify any unauthorized federal programs and agencies that received funding in the prior fiscal year and to recommend any programs that should be changed from mandatory funding, which is automatic, to discretionary funding.

Newly elected House Speaker Kevin McCarthy (R-CA) and Jim Comer (R-KY), Chair of the House Oversight and Accountability Committee, have outlined their six major oversight priorities: pandemic relief fraud, the energy crisis, COVID-19 origins, the border and fentanyl, the Biden family, and the United States’ withdrawal from Afghanistan.

Although House Republicans are particularly focused on the Biden Administration, private sector entities and individuals with business or personal relationships with the Administration may land in Congressional investigators’ sights as information sources or witnesses, notwithstanding the GOP’s traditional pro-business perspective.

Three newly created committees showcase the House Republicans’ commitment to their oversight agenda. The House Select Committee on China will focus on Taiwan and Chinese-US relations and Chinese-backed technology. The Select Subcommittee on the Coronavirus Pandemic will shift its focus from misinformation and government preparedness to the origins of COVID-19, and the Select Subcommittee on the Weaponization of the Federal Government will be a broad tool for House Republicans to investigate national security and domestic law enforcement efforts, focusing on ongoing criminal investigations, such as DOJ’s January 6 criminal investigations, and how the government and private corporations collect and analyze data on Americans.

The House Oversight and Accountability Committee plans to investigate the Biden Administration’s handling of the border crisis and the use of pandemic emergency funding, in addition to investigating the use of pandemic aid for “politically tinged” expenditures. The Committee’s investigations also will focus on Executive Branch efforts to combat climate change by diminishing domestic energy production, while increasing scrutiny on alleged dealings with foreign adversaries in the energy industry.

Additional committees with legislative jurisdiction are focusing on infrastructure, public health, communications, and energy, as the House Republicans look to examine Big Tech’s impact on children, censorship of conservative viewpoints, and the fentanyl and border crises. The adoption of Environmental, Social, and Governance (ESG) principles also will be a topic of investigation as the House looks to address any undue regulatory burdens on businesses.

The Senate’s Investigative Agenda

Following Senator Raphael Warnock’s (D-GA) December victory, Democrats gained a one-member majority in the Senate following two years of shared control with the Republicans. With a slim majority and split party control of Congress, most experts expect that Senate Democrats will be unable to accomplish much of their legislative agenda and are likely to focus on advancing their policy agenda through investigations. With this 51st vote, the Senate Democrats now hold unilateral subpoena power to use in investigations. Senate Majority Leader Chuck Schumer (D-NY) has already signaled that Senate Democrats are willing and prepared to wield this power to strengthen their oversight efforts. With a Democrat in the White House, Senate Democrats are continuing to focus their oversight attention on private sector conduct, including the healthcare, pharmaceutical, energy, and technology industries, to build support for their political and policy agenda heading into the 2024 elections.

China could be a rare area where House and Senate investigations will overlap or even complement each other. For example, Chairman Gary Peters (D-MI) of the Committee on Homeland Security and Government Affairs and Senator Josh Hawley (R-MO) are examining the security risks posed by government contractors who also work with the Chinese government or Chinese state-run enterprises. Senator Ron Wyden (D-OR), Chair of the Committee on Finance, has launched an investigation into reports of automakers’ use of forced labor from Chinese manufacturers. Businesses with ties to China should expect increased scrutiny from both chambers in the new Congress.

The Senate also is poised to launch several new healthcare investigations. Senator Bernie Sanders (D-VT), Chair of the Committee on Health, Education, Labor, and Pensions, has stated that he intends to take aim at the “greed and recklessness of the insurance companies and the drug companies” and plans to move “very aggressively” on prescription drug pricing, vaccine pricing, and other healthcare costs. Senator Sanders is prepared to use the Committee’s subpoena power “when necessary,” and likely will take aim at pharmaceutical companies, many of which have spent recent years responding to Congressional inquiries related to drug pricing, COVID-19 vaccine and therapeutic development, and other business practices. Recent news reports state that two pharmaceutical company CEOs have already received letters from Senator Sanders and Senator Wyden inquiring about their companies’ pricing and tax practices. Companies in Senator Sanders’ line of fire should take note. The life sciences and healthcare industries likely will have to field oversight inquiries from other committees as well, including questions about the shortage of children’s cold medications.

Climate change remains another area of priority for the Senate majority’s potential investigations. We anticipate that the Senate will continue to investigate energy prices and oil and gas companies, albeit now with added leverage to force company executives to produce documents, sit for depositions, and testify at hearings via subpoena. Senator Sheldon Whitehouse (D-RI), Chair of the Budget Committee, has taken over the prior Democratic House Oversight Committee’s investigation into fossil fuel companies’ purported influence campaigns regarding climate change. While Democratic concern about climate change is not new, the Senate’s renewed subpoena power gives teeth to these investigations.

Corporate behavior also will be under increased scrutiny by the Senate. For example, the Senate is investigating “union busting” across major corporations and alleged antitrust violations in the ticketing and airline industries, while also attempting to strengthen airline consumer protections. The cryptocurrency industry and social media companies practices will continue to be under the microscope as well.

Arnold & Porter’s Congressional Investigations team advises, guides, and defends individuals, associations, and businesses facing congressional scrutiny. We help clients prepare for and mitigate collateral, legal, and reputational risks from Congressional investigations. For questions about Congressional investigations, please reach out to the authors or any of their colleagues in Arnold & Porter’s Congressional Investigations cross-practice team. 

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.