In recent months, we have highlighted key developments on Capitol Hill and discussed the implications of the change in Administration on the pace and focus of congressional investigations. With a Democratic majority now in both the House and the Senate, investigations targeting the private sector are primed to take center stage in the new Congress.
As we explained in greater detail last month, while Vice President Kamala Harris will hold the deciding vote in event of a tie on the Senate floor, day-to-day operations in the Senate will be dictated by a negotiated agreement between the party leaders that the Senate adopted yesterday. While the agreement calls for each Senate Committee to be composed of an equal number of members of both parties, Democratic leadership on key committees will have a profound influence on the Senate’s oversight agenda.
As previously noted, the 2018 elections and Democratic takeover of the House of Representatives heralded a new wave of oversight and investigations on Capitol Hill. With myriad investigations targeting both the executive branch and the private sector, the last Congress represented a new high-water mark in oversight activity on both sides of the Capitol. At the same time, due to legislative action largely grinding to a halt, ambitious Members have increasingly used oversight and investigations as a key tool to influence policy. With Democratic control of the Senate, we expect Democratic Senators to join their House colleagues in utilizing their investigative authority to affect policy.
Of course, with President Trump no longer in office, Democratic investigators on the Hill may be less interested in investigating the executive branch. Still, look for many Members to continue pushing for investigations of the Trump administration. In particular, interest in ongoing oversight of the distribution and use of CARES Act funds and the numerous issues related to the 2020 presidential election and electoral vote protests will likely continue to garner interest well into 2021. These investigations will in turn continue to draw in private companies, such as CARES Act fund recipients and tech companies.
Overall, however, we predict that the most significant effect of a Democratic-controlled Senate is the likely uptick in investigations focused on the private sector. Even as House investigators have doggedly pursued investigations focused on the Trump Administration, key committees have launched wide-ranging investigations into everything from drug pricing and the COVID-19 response to competition across digital markets. And, with many major legislative initiatives still subject to a filibuster, an aggressive investigatory agenda may prove a particularly appealing avenue for pushing corporate policy changes through oversight, rather than legislation.
Given the consistency in the majority and leadership in the House, we expect that most of the changes in the oversight environment in 2021 will come in the Senate. With this in mind, here are a few trends we will be monitoring related to oversight in the newly Democratic Senate:
- A Crowded Oversight Field. Even setting aside the impending impeachment trial, a number of Senators in both parties are angling for leadership positions or preparing for future White House runs of their own. In recent years, individual Senators have increasingly launched their own investigations to highlight pet issues or raise their political profiles. At the same time, Democratic Senators who have already shown a penchant for launching individual investigations when in the minority will now have the power to launch investigations with the weight of their respective committees behind them. Taken together, these trends suggest that the number of potential sources for new investigations in the Senate has never been higher.
- Leveraging Activity in the House. Drawing on the intense oversight activity throughout the last Congress, Senate oversight committees may look to launch follow-on investigations to build upon the work of their House colleagues. For example, incoming Finance Committee Chairman Ron Wyden (D-Or.) has signaled that lowering prescription drug prices is among his top priorities for the current Congress. Should this legislative push be accompanied by active oversight, the Committee may look to the wide-ranging drug pricing investigation in the House Oversight Committee as a ready model. Similarly, Senator Amy Klobuchar (D-Minn.), who will lead the Senate Judiciary Committee’s Antitrust Subcommittee, recently announced that she plans to hold hearings related to antitrust reform that will target industries such as tech, health, and media. Many of her proposed reforms echo those recommended in last year’s House Judiciary tech antitrust report.
- Expanded COVID-19 Oversight. Since the spring, the House Select Subcommittee on the Coronavirus Crisis has led the pandemic oversight agenda, and received considerable attention for it. There is no corollary to the Select Subcommittee in the Senate. Thus far, COVID-focused oversight has been dispersed across a variety of Senate committees, and with the shift in Senate control, Senate committees may begin to focus on how corporations have responded to the pandemic.
- Renewed Action in the Banking Committee. The Senate Banking Committee will be led by incoming Chairman Sherrod Brown (D-Ohio), and a key member of the Committee is Senator Elizabeth Warren (D-Mass.). With these two Senators operating in coordination, and with a bit of rivalry, the Senate Banking Committee is primed for an aggressive oversight push. Throughout recent years, the House Financial Services Committee has been the scene of a number of newsworthy hearings focused on everything from consumer protection issues to fair housing protections. The Senate Banking Committee may soon take up these and other issues as an element of a broader legislative agenda.
Congressional investigations will always be driven by media headlines and political considerations. Members tend to focus on investigations that align with their own policy interests, and the interests of their constituents. Given all these factors, we encourage our clients to think carefully about the congressional investigation risks they may face throughout the coming Congress.