Congressional Oversight Alert
When the 114th Congress convened on January 5, 2015, the Republicans held a majority in both houses for the first time in eight years. The change of power in the Senate, the approaching end of the Obama administration and political maneuvering in anticipation of the 2016 election will influence legislative oversight and investigative activities this year.
The newly united Republican Congress will focus on "push[ing] back" on what Senator Ron Johnson of Wisconsin describes as the "regulatory overreach of the [Obama] administration." Congressional oversight related to this pushback will enmesh both the executive branch and private entities regulated by the federal government. With the clock ticking before Washington's focus turns from policy issues to next year's elections, this year promises to be an eventful one for congressional oversight.
While external events can alter a committee's best-laid plans, the activities of the last Congress signal the Republicans' plans for this session. Provisions in the omnibus spending bill passed last December and the ongoing designation of chairs of the various congressional committees also provide a roadmap for legislative oversight activities in the 114th Congress.
Significant Areas of Congressional Oversight
Senate Homeland Security and Government Affairs Committee, Permanent Subcommittee on Investigations; Chairman Rob Portman of Ohio
House Oversight and Government Reform Committee; Chairman Jason Chaffetz of Utah
The Senate Homeland Security and Government Affairs' Permanent Subcommittee on Investigations (PSI) and the House Oversight and Government Reform Committee have primary oversight jurisdiction over the executive branch. It is important to note, however, that every Senate and House committee possesses some form of oversight authority.
The new Republican majority in the Senate provides the GOP with control over the PSI, a significant addition to its investigative arsenal. The PSI maintains a large, experienced staff of investigators with broad jurisdiction over "the efficiency and economy of all branches of the Government." Senator Rob Portman of Ohio will assume the chairmanship of the subcommittee from retired veteran chairman Senator Carl Levin of Michigan. This transition guarantees increased Senate scrutiny of the Obama administration. Indeed, Senator Portman has said that chairing the committee "would be an opportunity to use the extraordinary powers of a committee to dig into waste, fraud and abuse, and ensuring the government is working properly. The committee has subpoena power."
In 2014, the House Oversight and Government Reform Committee, along with several other congressional committees, continued investigating the creation and administration of the Affordable Care Act (ACA). The Oversight Committee held hearings -- both in the Capitol and across the country -- examining numerous aspects of the health care law. The Committee's last hearing on the topic, held December 9, 2014, focused on Massachusetts Institute of Technology Professor Jonathan Gruber and his now infamous comments regarding the purported "lack of transparency" that fostered the creation of the ACA. By seating Professor Gruber next to Centers for Medicare & Medicaid Services (CMS) Administrator Marilyn Tavenner, the government official in charge of the health care law, the Oversight Committee created a striking optical and substantive contrast and presented an uncomfortable scene for defenders of the health care law.
Promising more of the same, Representative Jason Chaffetz of Utah replaces Representative Darrell Issa of California as the new chairman of the committee. Representative Chaffetz has called Professor Gruber "an all-star." The college placekicker-turned-congressman played an active and aggressive role during the Oversight Committee's December hearing on the ACA. Health care-related hearings featuring similar substance and optics will undoubtedly take place this year.
Representative Chaffetz has also contrasted his desire to issue more comprehensive reports with what he described as Representative Issa's less detailed "press release" approach. This assertion indicates a greater depth of focus on the health care law, with the likely expansion of congressional inquiry into the private sector's assistance into the operational aspects of the provision.
Representative Chaffetz has identified other areas of interest for the Oversight Committee. He recently announced that he will form a new subcommittee to oversee the Obama administration's energy and environmental policies, with responsibility over the Environmental Protection Agency (EPA) and portions of the Departments of Agriculture, Energy and Interior. Representative Cynthia Lummis of Wyoming will chair this new subcommittee and has been a leader in opposing the Endangered Species Act and other environmental provisions.
Other areas which could be subject to increased oversight include the troubled Secret Service and the State Department. Overhaul of the U.S. Postal Service and the streamlining of executive branch responses to Freedom of Information Act requests are other areas of potential inquiry for the Oversight Committee.
Homeland Security and Cybersecurity
Senate Committee on Homeland Security and Government Affairs; Chairman Ron Johnson of Wisconsin
House Committee on Homeland Security; Chairman Michael McCaul of Texas
Security issues were a major focus in the 113th Congress and should remain so in this Congress. The Department of Homeland Security (DHS) is the only executive department that Congress opted not to fund through September 2015 in December's omnibus spending bill. Because DHS will largely be responsible for carrying out President Obama's new executive order on immigration, a budget battle may still loom. Congress must authorize funding for DHS early this year and the Republicans will look to force the President to reconsider his executive deportation order or jeopardize some funding for the department. Congressional hearings on this subject are anticipated.
Senator Ron Johnson of Wisconsin is the chair of the Senate Committee on Homeland Security and Government Affairs. Representative Michael McCaul of Texas, a former federal prosecutor, is the formidable chair of the House Committee on Homeland Security. Both Senator Johnson and Representative McCaul have also promised to take up border security legislation this year.
Along with the Senate and House committees responsible for homeland security, numerous other committees -- including the Senate and House Judiciary Committees -- have jurisdiction over elements of data protection and security, as well as privacy issues. Congress will address concerns both inside and outside of the government on these issues and the complexities of the subject suggest significant oversight activity.
Government contractors providing information technology (IT) services to the federal government should be prepared for increased scrutiny. Specifically, because Congress is "concerned about the larger number of major IT development projects that are overbudget, off-schedule and ultimately fail to function," the new omnibus spending bill requires the Office of Management and Budget (OMB) to identify the ten "highest-priority" IT investments under development by the federal government. OMB must provide quarterly reports to congressional oversight committees on those projects. It would not be surprising to see major IT providers summoned to Capitol Hill to account for cost overruns or delays on federal IT projects.
Similarly, data failures and breaches involving both federal agencies and corporate entities will be a major focus in 2015. Members on both sides of the aisle, including Senator McCain, have already criticized Sony's conduct relating to the release of the movie "The Interview" after the company's servers were hacked, allegedly by North Korea. Congress will almost certainly examine this incident and other examples of hacking and data breaches involving major corporations. Data privacy will remain a significant issue for both the public and private sector.
In a related area, Congress will likely examine the federal government's regulatory authority over data security and could attempt to fashion federal data breach notification requirements that are currently lacking in this area. Indeed, Senator McCain has publicly blamed the Sony incident on the Obama administration for failing to adequately address cyber warfare.
Senate Finance Committee; Chairman Orrin Hatch of Utah
House Oversight and Government Reform; Chairman Jason Chaffetz of Utah
House Ways and Means Committee; Chairman Paul Ryan of Wisconsin
In 2014, the House Oversight Committee and House Ways and Means Committee each spent considerable time investigating the Internal Revenue Service (IRS), particularly the allegations that the IRS had targeted conservative non-profit organizations for additional scrutiny and regulation. This question will persist this year and the IRS's stated intention to issue new rules governing the political activities of 501(c) non-profits could set up a new area of conflict with Congress.
The omnibus spending bill slashed IRS funding by hundreds of millions of dollars and indicates that the IRS's activities will remain a hot topic for congressional oversight.
Energy and Environmental Policy
Senate Committee on Energy and Natural Resources; Chairwoman Lisa Murkowski of Alaska
Senate Committee on Environment and Public Works; Chairman Jim Inhofe of Oklahoma
House Committee on Natural Resources; Chairman Rob Bishop of Utah
House Committee on Energy and Commerce; Chairman Fred Upton of Michigan
Energy and environmental oversight are two areas where Republican control of the Senate will significantly change the legislature's focus. Senator Lisa Murkowski of Alaska will serve as the new chair of the Senate Energy and Natural Resources Committee. This could foster increased oversight relating to oil and gas production and reliability of the nation's power grid.
Senator James Inhofe of Oklahoma is slated to take over the chairmanship of the Senate Environment and Public Works Committee. His leadership will almost certainly concentrate on the administration's climate change policy along with a broader focus on environmental policy in general. The omnibus spending bill has cut the budget for the EPA, ensuring that the EPA will be staffed at its lowest level in over 20 years. EPA's actions relating to clean air and water regulations will receive plenty of attention as well.
Representative Rob Bishop of Utah is the new chairman of the House Committee on Natural Resources, taking over from retired Representative Doc Hastings of Washington. As part of a broad shake-up of the Committee's staff, Representative Bishop hired new personnel to conduct oversight on issues relating to energy development, mining, logging and wildlife protections on both land and sea. Hearings relating to the Keystone XL pipeline, hydraulic fracturing (or "fracking") and mining royalties are anticipated.
Under the supervision of Chairman Fred Upton of Michigan, the House Energy and Commerce Committee recently published a 105-page strategy document concluding that federal policies are ill-suited to develop the infrastructure needed to take advantage of the oil and gas production boost in the United States. Representative Upton has pledged to investigate and advance legislation on this issue.
House Select Committee on Benghazi; Chairman Trey Gowdy of South Carolina
Between the House and Senate, several committees conducted dozens of hearings into the 2012 attacks on a U.S. diplomatic facility in Benghazi, Libya. Numerous reports have been issued, most recently by the House Intelligence Committee.
The House has created a special committee to investigate the events in Benghazi led by Representative Trey Gowdy of South Carolina, a former district attorney. With a $3.3 million budget and former Secretary of State Hillary Clinton's 2016 presidential run looming, this matter should receive plenty of attention this year.
Banking and Financial Services
Senate Committee on Banking, Housing and Urban Affairs; Chairman Richard Shelby of Alabama
Senate Judiciary Committee; Chairman Charles Grassley of Iowa
House Committee on Financial Services; Chairman Jeb Henserling of Texas
The rollback of the Dodd-Frank Wall Street Reform and Consumer Protection Act's (Dodd-Frank) regulation of swaps transactions in the recently passed omnibus spending bill is an ominous sign for those who support the banking reforms in the financial bill. The Senate Banking Committee and House Financial Services Committee, under the supervision of Senator Richard Shelby of Alabama and Representative Jeb Henserling of Texas, respectively, will conduct vigorous oversight with an eye toward further roll-back of Dodd-Frank's regulations.
Securities and Exchange Commission pension regulations remain a congressional priority. The regulatory authority of both the Financial Stability Oversight Council, which regulates certain important non-bank companies, and the structure and operations of the Consumer Financial Protection Bureau will also be subject to particular congressional scrutiny. Mortgage-related rules and other consumer protection rules will also receive attention from Congress and could be subject to significant oversight activities.
Senate Committee on Health, Education, Labor and Pensions; Chairman Lamar Alexander of Tennessee
House Education and Workforce Committee; Chairman John Kline of Minnesota
Congressional Republicans recently announced plans to rewrite the controversial No Child Left Behind law passed in 2002. While Congress will look to eliminate most, if not all, of the law's key provisions, its oversight activities will initially focus on the statute's testing provisions. Indeed, Chairman Lamar Alexander of Tennessee has announced that the Senate Health, Education, Labor and Pensions Committee will hold a hearing on the subject this month. With an eye toward the 2016 elections, members of Congress on both sides of the aisle will be active in the ongoing national debate relating to testing and education policy in general.
Senate Committee on Veterans' Affairs; Chairman Johnny Isakson of Georgia
House Committee on Veterans' Affairs; Chairman Jeff Miller of Florida
Senate Republicans have already announced that the Senate Committee on Veterans' Affairs will hold hearings related to management of the Veterans Administration (VA).
In the House, the chairman of the Veterans' Affairs investigative subcommittee, Representative Mike Coffman of Colorado, recently announced plans for a series of hearings investigating "ongoing [Veterans Administration] contracting scandals." These hearings will examine alleged mismanagement of the agency's $15 billion-plus procurement system and could involve both government officials and private contractors. The inquiry may also extend beyond the contracts and examine allegations of misconduct relating to the VA Inspector General's investigation into the matter.
Legal and Judicial Issues
Senate Judiciary Committee; Chairman Charles Grassley of Iowa
House Judiciary Committee; Chairman Robert Goodlatte of Virginia
The Second Circuit Court of Appeals' recent reversal of the convictions of two individuals charged with insider trading has renewed calls for Congress to pass a statute defining the nature of what has traditionally been a common law offense. Indeed, insider trading has been an area of interest for Senator Charles Grassley of Iowa, the new chairman of the Senate Judiciary Committee. Both the Senate and House Judiciary Committees could take up this question in what would likely be a bipartisan review.
The Senate Judiciary Committee may also turn its attention to sports-related issues regarding both business practices and safety, as Senator Grassley has previously conducted investigations into both of these areas.
House Judiciary Committee Chairman Robert Goodlatte of Virginia is reportedly joining a lawsuit arguing that President Obama's executive actions on immigration are unconstitutional and that only Congress has the authority to set immigration policy. Accordingly, expect significant oversight action from the House Judiciary Committee on this issue.
Developments Affecting Future Enforcement of House Oversight Authority
The House Oversight Committee's decision to hold former IRS official Lois Lerner in contempt of Congress and the full House's vote to refer her to the United States Attorney for the District of Columbia for criminal prosecution were landmark oversight events in 2014. Ironically, the House's aggressive pursuit of Ms. Lerner may have compromised the House's ability to enforce its investigative authority in the future.
In May 2014, the House found Ms. Lerner in contempt of Congress for refusing to testify after it determined that she had waived her Fifth Amendment testimonial rights in an Oversight Committee hearing. This event was notable not simply because such contempt findings are relatively infrequent. More importantly, although federal law instructs the United States Attorney's Office for the District of Columbia to refer the matter to a grand jury, the United States Attorney has so far declined to do so. Nor has the United States Attorney pursued a similar contempt finding -- relating to the production of documents in the "Fast and Furious" investigation -- issued by the House to Attorney General Eric Holder in 2012.
The decision not to pursue either of these charges, despite the statutory direction that it is the United States Attorney's "duty" to refer the matter to a grand jury, may affect the Republican majority's approach when it next confronts resistance from executive branch officials. In lieu of utilizing a criminal contempt process that could be stymied by the Department of Justice, the full House could authorize and file a federal civil action to compel cooperation. With only two years left for the Obama administration, however, there may be insufficient time to litigate any new civil matters. Indeed, a Fast and Furious civil case against General Holder is still pending, more than two years after a complaint was filed.
The Justice Department's failure to pursue criminal contempt against executive branch officials may also complicate future House attempts to threaten or enforce contempt citations against private witnesses.
Although Congress will certainly continue to focus on existing areas of interest -- most notably the ACA, the IRS and Benghazi -- Republicans will use their new-found control of Capitol Hill to investigate new targets of opportunity. One benchmark indicator for Republican priorities will occur on February 15, the day that House rules require each committee to publish an "oversight plan" for the next two years. Shortly after the publication of those plans, we will provide an update reflecting the various congressional oversight committees' priorities for the 114th Congress.