The 119th U.S. Congress: Anticipated Oversight Priorities

As the 119th Congress—controlled in both the Senate and the House by the Republican Party—gets underway, questions loom about which companies and organizations can expect the attention of investigators, who may find themselves before cameras in a House or Senate hearing room, and whether, true to some proclamations of various committee chairs, there will be greater scrutiny of high-profile industries and institutions.

Time was when investigations by a Republican Congress were more likely to center on bureaucracy and business-friendly priorities like deregulation. But that was the old model: The 119th Congress is much more likely than past Republican congresses to spotlight targets in the private sector.

As for the specifics, various committee chairs have made public statements that leave little doubt where they’ll be looking.

In the House

• The new chair of the Committee on Energy and Commerce is Brett Guthrie from Kentucky, who has publicly criticized net neutrality efforts and expressed interest in artificial intelligence and what he perceives as censorship in social media.
• A former pharmacist, Buddy Carter from Georgia now heads the Health Subcommittee. He has announced plans to look at reducing drug prices and the role of pharmacy benefit managers.
• Gary Palmer of Alabama, the new chair of the Oversight and Investigations Subcommittee, has said that he too plans to focus on the healthcare industry.
• The Committee on Education and Workforce has a new chair—Tim Walberg of Michigan—who is expected to continue to examine how educational institutions have responded to antisemitism on campus, and who is likely to continue to use the Committee’s platform to highlight what he views as abuse and hypocrisy in DEI programs at universities.
• The Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party has been renewed. In the last Congress, this committee explored security, TikTok, drones, protecting Taiwan, fentanyl, and the use of forced and Uyghur labor. Expect the committee to continue to focus on these areas, along with China’s impact on the supply chain and Chinese corporations’ influence in the U.S., especially on technology. This will likely open the door to further review of supply chain integrity for U.S. companies using Chinese products in their manufacturing process. In fact, this committee’s jurisdiction has expanded. New rules call for the committee to make “policy recommendations on countering the economic, technological, security, and ideological threats of the Chinese Communist Party to the United States” and its “allies and partners.” Under the old rules, the committee was called upon “to investigate and submit policy recommendations on the status of the Chinese Communist Party’s economic, technological, and security progress and its competition with the United States.”
• Jim Jordan, chair of the House Judiciary Committee, has suggested a number of investigations ranging from insider trading by House members to expanding the committee’s probe from the last Congress into companies engaging in ESG practices related to climate.
• Another rule, a holdover from the last Congress, may also help determine who can expect or not expect scrutiny. The chair of the House Committee on Oversight and Government Reform—James Comer of Kentucky—is to be “included as one of the seven members of the Committee making any request of an Executive agency pursuant to section 2954 of title 5, United States Code.” In the past, minority members were able to use the “rule of seven” to conduct oversight without the buy-in of the majority party. It wasn’t as consequential last term, when the Democratic minority had little interest in looking into the Biden administration, but requiring Comer’s participation means that minority members on the committee now will have a tougher time compelling an Executive Branch agency to comply with their requests.

In the Senate

Once the cabinet-nominee confirmation hearings and the votes conclude, Senate committees are likely to execute their oversight priorities quickly.

• Chuck Grassley of Iowa chairs the Judiciary Committee, and last Congress, he looked into private equity firms and banks. That should continue, along with inquiries into how antitrust laws apply in the tech sector.
• The Permanent Subcommittee on Investigations wields expansive authority to oversee all government agencies, organized crime and other criminal activities, national security, energy, and labor issues. The incoming chair is Wisconsin’s Ron Johnson, who has said that he plans to turn the committee’s sights on, among other things, the development, safety, and efficacy of the COVID-19 vaccines, which will include a review of the interaction with federal agencies by various pharma companies and related businesses.
• Louisiana’s Bill Cassidy, who is also a gastroenterologist, is taking over as chair of the Senate Health, Education, Labor, and Pensions Committee, and he is likely to focus on healthcare issues, including cybersecurity, prescription drug costs, and medical bills; and on student loan debt, and the cost of higher education. For example, in the last Congress, he expressed interest in a data breach at Change Healthcare.
• Chair of the Commerce, Science, and Transportation Committee Ted Cruz of Texas is expected to continue his inquiries into organizations that have received federal grants and how they have used them and on foreign influence on domestic AI policy. Speaking of Senator Cruz, his committee plans to consider a provision that would allow him to issue subpoenas unilaterally. Historically, Senate committee chairs have been reluctant to issue subpoenas without consent of the other party. In the House, committee chairs can generally issue subpoenas unilaterally—though some committees have rules about involving the minority members.

Make no mistake: Congressional inquiries are consequential events. And the challenges start well before any hearing.

Every standing congressional committee has the authority to issue subpoenas, though the specific requirements vary by committee. More often, committees issue “voluntary” requests, at least initially. But when a congressional committee comes knocking, even voluntary requests can create an enormous amount of pressure on targets to cooperate or risk being portrayed as obstructionists. That often means congressional investigation targets choose—or in the case of subpoenas, are required—to produce documents, sit for briefings or interviews, or appear at public hearings that generate intense political and public scrutiny. And false statements to Congress—whether in a televised public hearing or in an informal witness interview—can be criminally punishable. 

It is imperative that every company and corporate leader be able to rely on a firm with experience in responding to congressional oversight, which is distinct from run-of-the-mill legislative procedures and often carries immense risk both to a company’s confidential information and to its public profile. O’Melveny is an industry leader in defending companies, their executives, and other congressional targets in such inquiries, and we work with our clients’ legal, government affairs, communications, and business teams to coordinate an interdisciplinary, systematic, and battle-tested approach to these unique investigations. Learn more about our Congressional Investigations practice here.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. K. Lee Blalack II, an O’Melveny Partner licensed to practice law in the District of Columbia, Maryland, and Tennessee; David N. Kelley, an O’Melveny Partner licensed to practice law in Connecticut and New York; Amanda M. Santella, an O’Melveny Partner licensed to practice law in the District of Columbia and Maryland; Jim Bowman, an O’Melveny Partner licensed to practice law in California; Mark A. Racanelli, an O’Melveny Partner licensed to practice law in Maryland and New York; Pamela A. Miller, an O’Melveny Partner licensed to practice law in New York; and Steven J. Olson, an O’Melveny Partner licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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