The Coming Congressional Investigations

Predicting the investigations of an incoming Congress is fraught.  Most obviously, congressional investigations generally track the crises of the day, and the coming crises themselves are not obvious.  Our last Congress illustrates the point.  In the aftermath of the 2018 election, few would have predicted that the President would attempt to strongarm an Eastern European ally into assisting his reelection prospects.  Those allegations turned out to be rather a big deal, and consumed much angst all around.  Nor would many have predicted a worldwide pandemic, which also turned out to be a rather big deal, and also consumed much angst during that Congress.

Also complicating things, control of the Senate remains uncertain, and may remain uncertain in the immediate aftermath of the January 5^th runoff elections in Georgia.  (And, yes, this article assumes a Biden administration and a Democrat-controlled House of Representatives).

Nonetheless, there is at least reasonable certainty regarding a number of expected congressional investigations.

Beginning on a bipartisan note, the parties are likely to find common ground in exposing alleged instances of fraud, waste, and abuse in the receipt of government monies meant to counteract the health and economic impact of the pandemic.  See, for example, some of the work during the last Congress of the House’s Select Subcommittee on the Coronavirus Crisis:  e.g., this report and this report.  And, on the Senate side, consider some of the work of the Banking Committee.  Bad actors in this space, or merely accused bad actors, beware.

The energy sector should expect expanded scrutiny.  In the House, the Energy and Commerce Committee has focused on non-carbon-based forms of energy, and the momentum there seems destined to increase under a Biden Administration.  And, on the Senate side, particular Senators, including Sen. Sheldon Whitehouse, are likely to press the industry even should the Democrats remain in the minority.  All the more so if the Democrats control the Senate.

This past Congress saw a marked increase in congressional interest in competition (or lack thereof) in digital markets, including a hearing with the leaders of Amazon, Apple, Facebook, and Google.  That interest was bipartisan and bicameral, and it is likely to persist, particularly as the Department of Justice, and other government entities, go public with their own investigations.

Health care is a perennial issue, lately with a particular focus on prescription drug pricing.  In the upcoming Congress, the pandemic will garner immediate attention, including regarding vaccine regulation, telehealth issues (and the perceived potential for abuses there), and otherwise.

Finally, as to scrutiny of the new Administration (as opposed to private industry), that will depend in significant part on control of the Senate.  The Democrat-controlled House, or a Democrat-controlled Senate, is unlikely to focus its energies there.  A Republican-controlled Senate is sure to do so.  That means, under a Republican Senate, agency officials and employees are substantially more likely to face scrutiny not only from their agency Offices of Inspector General but from Congress as well.

If past is prologue, the congressional investigations of the 117^th Congress will include each of the above topics, but the most passion may erupt on topics not yet imagined.  Stay tuned!