Business as Usual Despite Challenges
The coronavirus (COVID-19) pandemic is significantly altering legislative business in the nation’s capital, but the pandemic has not slowed congressional oversight of the Trump Administration. Congress is actively exercising its oversight authority to question aspects of both government and private sector responses to COVID-19. Congressional oversight poses significant legal, public relations and political risks to companies associated with COVID-19 response activities. More than ever, the current environment in Washington requires companies to mitigate these risks with appropriate due diligence and rigorous adherence to compliance programs.
Congress has effectively been in recess since mid-March. House and Senate leaders recently announced that neither chamber would reconvene in Washington until May 4 at the earliest.1 While Chairs and Members of congressional committees and their staffs are also working remotely, they have continued active oversight of the executive branch, and have not abandoned investigations of private sector businesses that were underway before the pandemic. Committees are not holding hearings that were expected in March, April and likely May, but are moving forward with their evaluation of documents, are issuing supplemental requests, and ultimately have or will issue public reports.
Not surprisingly, the Administration’s response to the COVID-19 pandemic has prompted numerous investigations, briefing requests, and oversight letters from congressional committees. The House Committee on Oversight and Reform (“HCOR”), for example, has sent more than 20 COVID-19-related request letters to the Administration and non-government entities. In some instances, Committees and individual Members have already publicly released initial investigative findings, including documents produced in response to investigative requests, as well as analyses derived from publicly available federal agency data.
While most COVID-19-related oversight has focused on the White House and federal agencies, private sector companies are increasingly under scrutiny for COVID-19-related activities. Congressional letters to companies typically request confidential proprietary business information, including contract-related documents, internal communications, as well as communications with the Administration. While compliance with congressional letters is generally considered “voluntary,” it is important to recognize that most committees have subpoena power to compel the requested information. If committee staff perceive any lack of cooperation or timeliness in response, threats of subpoenas are likely to follow. In fact, a number of key House committees, as well as the Senate Permanent Subcommittee on Investigations, provide the Chair with authority to unilaterally issue subpoenas.
Despite the ongoing investigations and heightened COVID-19-related oversight activity, congressional committees have confronted challenges to conducting business remotely, particularly with respect to holding virtual hearings and taking witness testimony. For example, House Rules Committee Chair Jim McGovern (D-MA) stated on April 16: “Making changes to the standing rules of the House and putting in place technology to allow for virtual hearings and markups is complicated and can’t be done overnight. But in the meantime, committees can hold briefings and roundtables to continue their work as we continue to work with the Committee on House Administration on these issues.” Virtual committee work has raised privacy and security concerns. Citing those concerns, Jim Jordan (R-OH), the Republican Ranking Member on the House Committee on Oversight and Reform, recently wrote a letter to Chairwoman Carolyn Maloney (D-NY) and issued a press release calling on her to halt use of the Zoom platform in conducting Committee business.
On the Senate side, some committees have attempted to continue with “paper hearings,” while others have stepped back from that approach. On April 9, the Senate Committee on Commerce Science, and Transportation held a paper hearing on “Enlisting Big Data in the Fight Against Coronavirus.” Under the Committee’s “paper hearings process,” the Chairman’s and Ranking Member’s statements, along with the witnesses’ testimony, were posted on the Committee’s website at the time of the hearing. That same day, the Committee posted Members’ questions on the webpage, giving witnesses 96 business-hours to provide written responses. Following an initial March 27 paper hearing, the Senate Armed Services Committee announced that it would be postponing subsequent hearings, “recognizing the additional burden on the Department of Defense” as it focuses on COVID-19 response efforts.
Despite the logistical and procedural challenges posed by COVID-19, congressional oversight has continued unabated, and will only increase as Congress finds additional solutions to working remotely. When Congress reconvenes in Washington, committees are expected to quickly resume scheduling witness interviews and oversight hearings before the November election.
