Earlier this week, legislators returned to Washington to make a number of key decisions about oversight committee leadership, membership, and investigative agendas. As one of their first official items of business, the U.S. House of Representatives approved in a party-line vote a rules package governing processes and procedures for the 117th Congress.1 As discussed below, the rules package is noteworthy because it identifies early investigative priorities in the coming Congress, all of which appear aligned with Biden Administration priorities relating to pandemic response, economic recovery, environmental justice, and diversity and equity issues. The rules package also indicates an intent to make full use of the oversight tools available to conduct investigations.
Investigative Priorities
The House majority has provided an early view into areas of focus for Democrats in the new Congress by authorizing three select committees with oversight authority: the Select Committee on Economic Disparity and Fairness in Growth, the Select Committee on the Climate Crisis, and the Select Subcommittee on the Coronavirus Crisis.2 House Rules Committee Chairman James McGovern (D-MA) stated that these committees would enable the House to tackle the most pressing issues facing the nation and focus on those citizens who are left behind by economic disparities. These select committees have investigatory authority over policies, strategies, and innovations related to their respective subject matters, and we expect their oversight to cut across industries.
The new Select Committee on Economic Disparity and Fairness in Growth is tasked with reviewing policies related to economic fairness, access to education, and workforce development. Given the broad mandate, the committee's oversight efforts could involve financial institutions, colleges and universities, and a variety of private sector companies, including those in the health care and insurance industries. The new committee does not have unilateral subpoena power but may seek subpoenas through standing committees.
The House has reauthorized the Select Committee on the Climate Crisis, which, in the previous Congress, held numerous hearings on clean energy, climate health risks, climate costs, and other impacts of climate change. We expect this select committee to redouble its efforts in the new Congress to support the Biden Administration's focus on climate change. The House also reauthorized the Select Subcommittee on the Coronavirus Crisis. We expect this select subcommittee to continue its focus from the previous Congress on the Trump Administration's response to the pandemic. It issued subpoenas in the previous Congress and may continue that practice in the new Congress.
Revised Subpoena Rules
The rules package revised the rules governing the use of subpoenas, and these changes offer additional insights into investigative priorities. The rules identify two areas where the Committee on Oversight and Reform and the Select Subcommittee on the Coronavirus Crisis are permitted to reissue subpoenas from the previous Congress prior to formal committee reorganization: (1) "[P]olitical interference in the response to the coronavirus pandemic at the Department of Health and Human Services and Centers for Disease Control and Prevention and related matters"; and (2) "[T]he accuracy and timing of the 2020 decennial census and related matters."3 This leaves little doubt that these committees intend to continue their investigations into the activities of the Trump Administration even after President Trump leaves office. Companies that have played a role in the pandemic response may face questions as part of these inquiries.
Oversight Tools
The rules package also includes revisions aimed at strengthening oversight tools for investigative committees. The rules have now been amended to explicitly state that House subpoenas apply to "any person or entity, whether governmental, public, or private, within the United States, including, but not limited to, the President, and the Vice President, whether current or former, in a personal or official capacity."4 The accompanying analysis released by the House Committee on Rules characterizes the provision as a "clearer affirmation" of "existing authority" rather than an expansion of authority. However, the enforceability of congressional subpoenas to executive branch officials has been the subject of litigation over the past year, and challenges to this authority may continue. The House Majority may rely on the revised rules if former executive branch officials seek to challenge the enforceability of subpoenas issued in the new Congress.
The rules continue to strengthen the ability of the standing committees to conduct congressional oversight. The House Majority is continuing the policy of the 116th Congress permitting all standing committees and the Permanent Select Committee on Intelligence to order the taking of depositions of witnesses.5 Participation by Members, delegates, and the Resident Commissioner is not explicitly required. Without a requirement that a Member be present, it may be easier for committees to quickly schedule and depose witnesses.
The new rules also expand the disclosure requirements for nongovernmental witnesses testifying at committee hearings.6
Finally, the rules include provisions protecting the identities of federal whistleblowers from disclosure by Members and congressional staff.7 Under this rule, Members and staff "shall not knowingly and willfully disclose publicly the identity of, or personally identifiable information about, any individual" protected under the Civil Service Reform Act of 1978, the Whistleblower Protection Act of 1989, the Intelligence Community Whistleblower Protection Act of 1998, or any other federal law that allows individuals to make protected disclosures to Congress.
Legislative Measures
The rules also contain several legislative measures that underscore key policy priorities; for instance, the rules now exempt legislation designed to address climate change and economic or public health consequences of the pandemic from a longstanding provision requiring legislation that would increase the deficit to be offset.8 The new rules also contain a provision requiring the Office of Diversity and Inclusion to prepare a report recommending a method to survey the diversity of witness panels at committee hearings.9
Conclusion
The rules changes further strengthen oversight authority in the House and reflect an intention by committees and Members to take a robust approach to oversight during the next two years. They also underscore the House's commitment to issues surrounding climate change and diversity, in alignment with the priorities of the Biden Administration.
WilmerHale regularly assists clients in responding to inquiries by congressional committees. Our experienced team of lawyers and policy professionals are available to help clients navigate this challenging environment.
Footnotes
1 H.R. 8, 117th Cong. (2021).
2 Id. §§ 4(d), (f), (g)./p>
3 Id. § 3(q).
4 Id. § 2(m).
5 Id. § 3(b).
6 Id. § 2(k).
7 Id. § 2(y).
8 Id. § 3(v).
9 Id. § 3(t).
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