Earlier this month, the House of Representatives adopted resolutions holding two witnesses in contempt of Congress for failing to comply with subpoenas issued by the House Committee on Ethics in connection with the Committee’s investigation of alleged congressional ethics violations by former Representative Sheila Cherfilus-McCormick (D-Fla.). The House acted unanimously, by a voice vote, after the Committee took the highly unusual step of recommending, in reports released at the end of August, that both witnesses be held in contempt. The House’s swift adoption of the resolutions is the most recent example of the apparent end of the era in which congressional ethics investigations unfolded quietly and largely out of public view. This shift presents new risks for private parties potentially swept up in such investigations.
Continue Reading Rare House Contempt Resolutions Signal Heightened Risks for Private Parties
New Lawsuit Raises Unresolved Questions About House Civil Subpoena Enforcement
Former Apollo Global Management CEO Leon Black has taken the unusual step of filing a lawsuit seeking to preclude the House of Representatives’ Committee on Oversight and Government Reform from enforcing subpoenas the Committee issued in its investigations related to Jeffrey Epstein. Black’s complaint, which challenges the Committee’s authority to enforce its subpoenas through civil litigation, poses a question that was left unresolved by the D.C. Circuit Court of Appeals in 2021. Though the court may ultimately decline to reach that question in the present litigation, the case presents an intriguing opportunity to clarify the ability of House committees to compel compliance with investigative demands.
Continue Reading New Lawsuit Raises Unresolved Questions About House Civil Subpoena EnforcementSupreme Court Action Revives FCC Media Bureau’s Political Ad Guidance
Late Friday afternoon, the U.S. Supreme Court granted a stay of the Fourth Circuit’s decision setting aside the FCC Media Bureau’s guidance on entitlement to the lowest unit charge (“LUC”) for certain political ads placed on broadcast TV and radio. See our prior post about this issue here. Notably
Continue Reading Supreme Court Action Revives FCC Media Bureau’s Political Ad GuidanceFourth Circuit Sets Aside FCC Media Bureau Guidance on Lowest Unit Charge; FCC Asks the Supreme Court to Step In
On August 25, 2026, a divided panel of the U.S. Court of Appeals for the Fourth Circuit set aside guidance by the FCC’s Media Bureau stating that two types of political advertising were entitled to the favorable “lowest unit charge” (“LUC”) rate: ads paid for as “party coordinated expenditures,” meaning ads paid for by a party in coordination with a federal candidate, and ads placed by joint fundraising committees involving a federal candidate. This question had become particularly salient after the Supreme Court’s decision in June that struck down limits on party coordinated expenditures, allowing unlimited party spending in coordination with candidates, as we explained here. The Fourth Circuit’s ruling was in response to a challenge to the Media Bureau’s Public Notice by four Democratic candidates for federal office. The ongoing litigation has a direct and immediate impact on broadcasters and political advertisers, but its broader significance may lie in what the Fourth Circuit said about judicial review of bureau-level FCC actions.
Continue Reading Fourth Circuit Sets Aside FCC Media Bureau Guidance on Lowest Unit Charge; FCC Asks the Supreme Court to Step InThe Procedural Puzzle Complicating the Fauci Contempt Referral
As widely reported, the Senate Homeland Security and Governmental Affairs Committee voted to hold Dr. Anthony Fauci in contempt of Congress following his appearance before the Committee in July, where he refused to answer the Committee’s questions by asserting his rights under the Fifth Amendment. At the same time, the procedure used by Chairman Rand Paul to refer the matter to the Justice Department, which he did without a vote of the full Senate, has raised the consequential procedural question of whether Chairman Paul can skip the Senate floor and advance the congressional contempt matter to DOJ—and potentially a prosecution—without a vote of the full chamber. That pathway would mark a departure from prior congressional contempt precedents and could lead to a novel fight over an old statute, a fight that the Department of Justice may or may not wish to wage. Indeed, according to an article in the Wall Street Journal last week, some in the Trump administration are reportedly questioning whether Chairman Paul’s contempt effort is “procedurally sound.” To understand why this may be the case, one can look to the contempt of Congress statute, its interpretation in relevant cases, and the sequence of events following the Committee’s contempt vote.
Continue Reading The Procedural Puzzle Complicating the Fauci Contempt ReferralOLC Opinion Would Extend Executive Privilege to Include Private Advisers, Inviting Future Disputes with Congress and New Considerations for Private Parties
The Department of Justice’s Office of Legal Counsel (“OLC”) has issued a new legal opinion that may offer the administration new tools to withhold from disclosure the President’s communications with certain private parties. In an opinion published this week, OLC concluded that the presidential communications privilege shields from disclosure certain communications between the President and what OLC described as his “private advisers,” who could be “anyone . . . outside the Executive Branch,” including “members of the public, state officials, or employees of other branches of the federal government.”
In a moment when Democratic Members of Congress are preparing for sweeping inquiries of the administration should they win control of the House or Senate in the upcoming midterm elections, the practical implications of OLC’s analysis for future oversight disputes appear to be very significant. Most immediately, the opinion opens another front in the long-running institutional struggle between the political branches over congressional access to executive branch information, with Democratic congressional leaders already signaling their intention to forcefully contest any forthcoming privilege claims. At the same time, however, the opinion seems likely to extend those disputes to communications between the administration and companies, individuals, and entities outside the government that may themselves become subjects of congressional scrutiny.
Continue Reading OLC Opinion Would Extend Executive Privilege to Include Private Advisers, Inviting Future Disputes with Congress and New Considerations for Private PartiesGovernment Contractors Face Unique Risks Amid Growing Congressional Scrutiny
In recent years, investigators in Congress have ramped up scrutiny of government contractors and other recipients of federal funds. This trend has only accelerated in the current Congress, with Republican-led committees pursuing expansive inquiries targeting a wide variety of federal contractors and grantees. Along with familiar allegations of waste or
Continue Reading Government Contractors Face Unique Risks Amid Growing Congressional ScrutinySupreme Court Decision in National Republican Senatorial Committee v. Federal Election Commission Empowers Political Parties, Calls Other Restrictions into Question
In a major decision today, the Supreme Court in NRSC v. FEC struck down longstanding limits on “coordinated party expenditures” that restricted the amounts political parties could spend in coordination with federal candidates. With this decision, national party committees and the federal accounts of state parties can now spend unlimited
Continue Reading Supreme Court Decision in National Republican Senatorial Committee v. Federal Election Commission Empowers Political Parties, Calls Other Restrictions into QuestionToday’s Press Release Could Be Tomorrow’s Subpoena: Bracing For the Possibility of Democratic Congressional Investigations
With fewer than 180 days until the midterm elections, Democratic Members of Congress are laying the groundwork for future congressional investigations in the event the party regains control of one or both chambers next year. Even as Democratic Members prepare for the possibility of winning the majority, developments such as
Continue Reading Today’s Press Release Could Be Tomorrow’s Subpoena: Bracing For the Possibility of Democratic Congressional InvestigationsThe Paper Trail Starts Now: Minority Document Preservation Letters and Preparing for Oversight to Come
With the midterm elections rapidly approaching, Democratic lawmakers in both the House and Senate have begun to return to an increasingly familiar tactic of the minority: firing off a flurry of document preservation letters that are a harbinger for the subpoenas to come. These early letters signal that key Democrats intend to hold potential investigative targets accountable if they regain power, and that they will not look fondly on parties that dismiss their requests. By urging federal agencies and private entities to secure records in advance, Democratic Ranking Members are making clear that they won’t wait idly to ensure relevant evidence is preserved.
Continue Reading The Paper Trail Starts Now: Minority Document Preservation Letters and Preparing for Oversight to Come