Congressional investigations thrive in divided government. With a constrained ability to advance policy through legislation, Members are more likely to turn to investigations as a means of making headlines and affecting private sector practices.
The Democratic Senate majority and the Republican House majority give the respective majorities the ability to control the agenda of each chamber, and likely virtually unfettered subpoena power. Democrats will preside over all Senate committees and have control of the Senate agenda. Likewise, Republicans will preside over all House committees and have control of the House agenda. Rep. Kevin McCarthy (R-CA), the Republican Conference nominee for Speaker of the House, recently released a sweeping Oversight plan for “Oversight in the 118th Congress,” which is discussed below.
Congressional investigations have been on the rise generally in the past several years, and all signs indicate that investigations in the 118th Congress will be prolific and particularly challenging, especially for the companies, industries, and individuals that are a central focus of GOP critiques. As part of these investigations, incoming House Republican committee chairs will possess virtually unchecked power to issue subpoenas, demand documents, call hearings, and compel witnesses to testify.
Congressional investigators have a large toolkit. There are a number of ways Congress can exert pressure on companies and individuals, and this has expanded in recent years. In the new Congress, recent developments in congressional investigations will be precedent-setting for newly empowered House GOP committees, who likely will look to the tactics and techniques that the current Democratic-led committees employed in the past few years for creative investigative ideas. For example, many Americans watched the January 6th Select Committee hearings and that Committee’s effective use of videotaped deposition testimony. In the future, we anticipate that more committees will use videotaped depositions, both to put additional pressure on witnesses and to generate additional headlines.
In the days since clinching a majority in the chamber, Senate Democrats have made clear that the party expects to wield subpoena power, despite Sen. Kyrsten Sinema’s (I-AZ) decision to become an independent, and to use the investigative tools at its disposal to conduct private-sector oversight. For example, Sen. Bernie Sanders (I-VT), incoming chair of the Senate Health, Education, Labor and Pensions Committee, identified “greed in the pharmaceutical industry,” high prices for healthcare, and “union busting” as areas of potential investigation. Similarly, Sen. Ron Wyden (D-OR), chair of the Senate Finance Committee, has already taken steps to probe pharmaceutical companies’ compliance with tax laws. And, Sen. Sheldon Whitehouse (D-RI), incoming chair of the Senate Budget Committee, hinted at the possible investigation of fossil-fuel companies’ claims about climate change.
Meanwhile, House Republicans have a laundry list of issues they want to investigate, including Big Tech, so-called “woke” ideology and corporations, and competition with China. Prioritizing and coordinating those investigations across high-profile committee chairs with varying, sometimes overlapping jurisdiction will be critical to the effectiveness of these investigations. If Rep. McCarthy becomes Speaker, he and the anticipated chairs of three premier investigative committees of the House with a long history of robust insight—Jim Jordan (R-OH) at House Judiciary, James Comer (R-KY) at House Oversight, and Cathy McMorris Rodgers (R-WA) at House Energy and Commerce—will surely be in close communication to maximize the impact of Republican investigations. News reports indicate that these Members have already been collaborating on the GOP’s investigative agenda and that their staffs have been at work for months, internally and in consultation with outside groups, to develop an oversight agenda and prepare to deploy investigative tactics (such as document requests) immediately upon taking their respective gavels.
Rep. McCarthy’s newly released oversight plan includes the following wide range of topics: Department of Homeland Security and our Open Border Crisis, Big Tech and the Silencing of Americans’ Free Speech, China, Security, COVID Origins, Hunter Biden, Disastrous Afghanistan Withdrawal, Washington Spending, DOJ/FBI, Education & Woke Ideology, Energy Production & American Industry, IRS Politicization & Abuse, and Breaking the Swamp’s Bureaucracy. Rep. Comer also identified top investigation priorities for the House Oversight Committee in a recent op-ed, pledging to “conduct serious investigations and propose real reforms” on issues including: the border and fentanyl crises, pandemic relief fraud, the Afghanistan withdrawal, domestic energy production, COVID-19 origins, and Biden family business activities.
Overall, priority number one is expected to be the Biden Administration and the Biden family. We expect immediate probes of the Administration’s withdrawal from Afghanistan, the origins of and responses to the COVID-19 pandemic (including, for example, interactions between the Administration and teachers unions, procurement of tests from China, and more), energy policy and use of the Strategic Petroleum Reserve, and matters involving Hunter Biden.
But it is clear that GOP investigations will not be centered exclusively on executive oversight. Even those investigations that are ostensibly focused on the Biden Administration will ensnare entities and individuals that interact with the Administration or are relevant to key Democratic policies during the first Congress. For example, any entity that Republicans see as having advocated for or benefitting from the Bipartisan Infrastructure Law or the Inflation Reduction Act could be drawn into a congressional investigation.
More directly prioritizing the oversight of private entities, technology companies will likely be targets in a number of varied inquiries, including alleged political favoritism, content moderation, censorship, and the effect of technology on children, long a favorite topic of the anticipated Chair of the Energy and Commerce Committee. Moreover, Rep. McCarthy’s oversight agenda lays out plans to investigate Big Tech, including specific references to companies and allegations of censorship, threatening national security, and “debanking efforts.”
Rep. McCarthy’s oversight plan also promises to stand up a China Select Committee to “investigate and provide policy recommendations on how the U.S. can win the economic and technological competition” with China. This Committee would investigate, among other topics: deceptive trade practices, supply chain vulnerabilities, China’s pursuit of U.S. advanced technologies and intellectual property, exploitation of U.S. investment power, and advancement of CCP doctrine in U.S. academic institutions. Companies that do business with China, and academic institutions with ties to China, would likely be targets of such investigations. Additionally, Republicans have increasingly criticized corporations seen as turning a “blind eye” to issues in China while taking active, liberal stances on domestic issues.
Another high-risk area for the private sector is so-called “woke” capitalism and related “Environmental, Social, and Governance” (ESG) issues. While Republicans historically have been viewed as cozy with big business, that dynamic appears to be shifting. As corporate America increasingly faces pressure from consumers to adopt more active stances on issues such as social equity and combating climate change, Republicans have not been afraid to turn the spotlight on specific “woke” companies or even their individual CEOs, who could be hauled to Capitol Hill to testify on live television.
This is only the tip of the iceberg. House Republicans know that in an era of divided government they will not be able to push through legislation, but their Committee chairs will have subpoena power and the ability to investigate virtually anything. And, on the other side of the Capitol, Senate Democrats will be emboldened by their increased majority.
Given the anticipated oversight environment, we encourage our clients to think carefully about the congressional investigation risks they may soon face in the new congressional term.
 See, e.g., Jordan Carney, Senate Dems prepare to join the investigative fray, Politico (Dec. 14, 2022), https://www.politico.com/news/2022/12/14/senate-democrats-investigations-00073580.
 James Comer, Get Ready for Republican Oversight, Wall St. J. (Dec. 11, 2022), https://www.wsj.com/articles/get-ready-for-republican-oversight-government-transparency-democrats-gop-border-fentanyl-energy-inflation-majority-covid-11670789661.