Two years ago, the newly elected Democratic majority in the House promised a wave of investigations—and they sure did deliver. Even if you set aside the investigations related to the impeachment, the pace of investigations over the last two years was unlike anything we had witnessed in more than a decade.
A hallmark of the last two years was also the breadth of investigative activity. In addition to mainstay Committees like Oversight and Reform and Energy and Commerce, we also saw major investigations of private sector companies launched from the Education and Labor Committee, the Financial Services Committee, the Judiciary Committee, and more.
As we look to predict congressional investigations in the next Congress, we have to look at what is different and what will remain the same.
The biggest difference, of course, is the possibility of a Biden administration. If Vice President Biden prevails, the Democratic House will certainly be less interested in investigating the executive branch. But we expect that will merely change the type of investigations, rather than the pace. As one example, fewer investigations of the administration correspondingly means more investigations of the private sector.
In the early years of President Obama’s administration, for example, the Democratic House increasingly targeted its investigations toward industry. Notably, many of these investigations related to the financial crisis and the government’s spending of Recovery Act funds.
That history, of course, is closely mirrored in the current environment. Throughout 2020, we have already seen a massive increase in the number and pace of investigations related to the pandemic response and the use of CARES Act funds.
Congress has launched a number of inquiries into the pandemic response, including investigating vaccine development, COVID treatments, medical devices, PPE shipments, and more.
Congress has also started to investigate the use of CARES Act funds, looking to determine whether the funds were used as Congress intended. Like the investigations of Recovery Act funds after the financial crisis, we expect many more investigations related to the use of CARES Act funds in the years to come. The CARES Act also created several oversight entities, and the House created a Select Subcommittee on the Coronavirus Crisis. These entities virtually ensure continued investigations related to the pandemic response.
Finally, we may see an increase in investigative activity from a Republican Senate if Vice President Biden wins the presidency. Much the same way the Democratic House investigated the Trump administration and corporate interactions with the government, a Republican Senate may well do the same with a Biden administration and companies doing business with the new government.
Now, what if President Trump wins reelection? At bottom, nothing changes. The same frantic pace of investigations that we have seen over the past two years would continue, with Democratic chairs investigating the administration, the private sector, and the interactions of the two. Congress would also continue to target investigations at private sector companies in an effort to obtain information about the activities of the government, seeking an end-run around the Trump administration’s reluctance to share information with Congress.
The only slight counter pressure on this trend may come from the moderate Democratic Members in the House, who may worry that relentless attacks on the Trump administration may backfire at the 2022 midterms, similar to the way that widespread investigations of President Clinton led to Republican losses in the 1998 second-term midterms.
Finally, a few things will remain the same, regardless of the presidential outcome.
With a divided Congress, and possibly divided government, gridlock is certain to continue. In recent years, leaders in Congress have increasingly turned to oversight and investigations as a way to affect policy, particularly by jawboning companies to implement corporate policy changes that Congress was unable to achieve through legislation.
Whether it is slowing the growth of prescription drug prices or seeking policy changes at social media companies and others, congressional investigators often believe that the spotlight of a congressional investigation can be influential on corporate practices.
Lastly, congressional investigations will always be driven by political considerations and events in the headlines. Members naturally gravitate to investigations that both garner media attention and align with the Member’s policy interests.
Given all these factors, we encourage our clients to think carefully about the congressional investigation risks they may face today and in the new congressional term.