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Recently, the Senate adopted a power-sharing agreement providing some contours for organizing the equally divided body.  As we have discussed previously, such agreements are very rarely needed.  The Senate has only faced a 50-50 partisan split a handful of times.  The most recent instance, in 2001, prompted the first power-sharing agreement, which served as a model for this year’s agreement.
The new power-sharing agreement offers guidance on a number of Senate functions.  However, the agreement leaves unanswered a crucial question for those interested in congressional investigations: Does the power-sharing agreement have any impact on the issuance of subpoenas by Senate committees?Among other things, the agreement provides:
  • “The committees of the Senate, including joint committees and special committees,” shall be composed equally of members of both parties, appointed by the two party Leaders;
  • The Chair of a full committee may “discharge a subcommittee of any Legislative or Executive Calendar item which has not been reported because of a tie vote and place it on the full committee’s agenda”; and
  • In the case of “a measure or matter” not reported because of a tie vote, either Leader may make a motion to discharge the measure or matter.

The agreement does not specifically mention subpoenas.  Given that the rules of many Senate committees provide for the issuance of subpoenas based on a majority vote of committee (and/or subcommittee) members, the mandated 50-50 split for committee membership could have major implications for the issuance of subpoenas—requiring committee Chairs to seek bipartisan support in order to compel witness testimony or the production of documents.  This in turn could bring new significance to committees with Republican leaders who have demonstrated a willingness to work collaboratively with their Democratic colleagues on oversight matters.  In this regard, keep an eye on efforts by Democratic leaders to seek to partner with incoming Homeland Security & Governmental Affairs Committee (HSGAC) Ranking Member Rob Portman (R-Oh.), who previously worked closely with incoming HSGAC Chairman Gary Peters (D-MI) on the Committee’s Permanent Subcommittee on Investigations.

Senate Democratic Leader Chuck Schumer (D-N.Y.) and Republican Leader Mitch McConnell (R-Ky.) have noted that the 2021 agreement is “almost identical” to the 2001 agreement.  There is little guidance on how that agreement was interpreted to apply to committee investigatory functions, perhaps because it was only in effect for five months.  Interestingly, one of the few changes between the 2001 and 2021 agreements is found in the clause regarding tied committee votes.  See the comparison below (substantive differences bolded by Covington).

The 2001 agreement uses the phrase “legislative item or nomination,” rather than “measure or matter.”  That change may indicate an intent to clarify that the tie vote procedure will apply to more than purely legislative votes and nominations.

Whether the 2021 power-sharing agreement’s tie vote procedures apply to committee votes to issue subpoenas is an open question that impacts the investigatory landscape of the entire Senate.  Most committees provide that subpoenas of witnesses and documents may be issued upon a majority vote of committee members.

To illustrate the potential implications of tied, party-line votes on the committee subpoena process, Covington has created a chart broadly categorizing the committees’ subpoena powers.  (The chart is based on the committee rules from the 116th Congress, since the committee rules of the 117th Congress have not yet been promulgated.)  Only the HSGAC Permanent Subcommittee on Investigations Chair may unilaterally issue subpoenas.  The Senate Committee on Health, Education, Labor, and Pensions (HELP) rules permit the committee to, by majority vote, delegate the power to issue subpoenas to the Chair, Subcommittee Chair, or to the Chair’s designee.  Five committees allow the Chair to issue a subpoena—without a majority vote—as long as the Ranking Member does not object within a specified time period: Agriculture, Commerce, HSGAC, Small Business, and Veterans’ Affairs.  The rest require a majority vote, or at least the approval of the Ranking Member.

* The rules provide that the Ranking Member (RM) has 72 hours (48 hours in the case of Veterans’ Affairs) to respond to the Chair’s issuance of a subpoena; if the RM does not respond in that time, the RM’s approval is not required.  They also provide that if the RM disapproves, the subpoena may be authorized by a majority vote.  They do not address what happens if the RM does not respond at all within time period (i.e., does not “disapprove”).  It appears that in that case, the Chair could unilaterally issue the subpoena.

** Note that HSGAC Subcommittees—including the Permanent Subcommittee on Investigations—may “adopt rules concerning subpoenas which need not be consistent with the rules of the Committee.”  However, in the event the Subcommittee authorizes the issuance of a subpoena pursuant to its own rules, a written notice of intent to issue the subpoena shall be provided to the Chairman and Ranking Minority Member of the Committee (or designated staff officers), by the Subcommittee Chairman (or designated staff officers) immediately upon such authorization.  In addition, no subpoena shall be issued for at least 48 hours, excluding Saturdays and Sundays, from delivery to the appropriate offices, unless the Chairman and Ranking Minority Member waive the 48-hour waiting period or unless the Subcommittee Chairman certifies in writing to the Chairman and Ranking Minority Member that, in his or her opinion, it is necessary to issue a subpoena immediately.

*** HELP may, by majority vote, delegate the power to issue subpoenas to the Chair, Subcommittee Chair, or to the Chair’s designee.