Brian Smith delivered the following remarks during Covington’s post-election conference call with clients on November 8, 2018.
“Restoring the Constitution’s checks and balances to the Trump administration.” That’s what Democratic leader Nancy Pelosi promised in her speech after the elections.
Congressional oversight and investigations thrive in divided government, and Democratic leaders are already promising a new wave of oversight.
While the press and pundits are mostly focused on the likely political investigations – access to the President’s tax returns or investigations of the Trump Organization’s business activities – the House’s investigative agenda is much broader, and it has direct implications for many of our clients.
For example, when we last had a Democratic House and a Republican President, in 2007 and 2008, Congress conducted large investigations of drug companies’ sales and marketing practices, technology companies’ sharing of customer data, and the financial industry’s corporate practices. A decade later, these three sectors – pharmaceutical, financial services, and technology – remain prime targets for congressional scrutiny, along with energy, government contractors, and most other highly regulated industries.
Moreover, a lot has changed in the last decade to increase the congressional investigations risks.
First, more committees now possess dedicated and experienced oversight staff than ever before, and several committees have dedicated oversight and investigations subcommittees. We expect oversight activities from all the major committees next year.
Second, in recent years, several committees have modified their rules to give the chairmen unilateral authority to issue subpoenas – a practice that we expect to continue next year. Even though many investigations do not result in subpoenas, the potent threat of a subpoena – issued without committee vote or sometimes even notice – makes it much harder for companies to resist congressional demands.
Third, congressional investigations, which always ebb and flow depending on the political environment, have become much more consistent and a mainstay of today’s legislative process.
That trend has been driven, in part, by legislative gridlock, as Members turn to oversight and investigations as a way to affect policy, and private sector practices, that they cannot reach through legislation. With the Senate remaining in Republican control, House Members will have a greater incentive to pursue policy goals through investigations.
In predicting next year’s investigations, history is often a good guide.