After fifteen votes, the House of Representatives chose Rep. Kevin McCarthy (R-CA) as Speaker. McCarthy led Republicans in the 2022 midterm election cycle on a platform that emphasized a robust oversight agenda. Government accountability was one of the four pillars of the Republican “Commitment to America” that McCarthy rolled out last September.
Changes to the House Rules became one of the critical elements in the Speaker negotiations, and once the Speaker was elected the House turned its attention to the Rules package. It passed 220-213 with only one Republican defection. The structure of the package was to build off, and amend, the Rules of the 117th Congress. Thus, those rules remain the baseline unless changed. The 118th Congress amendments (H.R. 5 adopting the Rules here and Section analysis here) are rife with signals about the GOP investigative and oversight agenda. In addition, they contain changes bearing on investigative power ranging from the structural to the procedural to the cosmetic. As discussed below, some of these changes are designed to limit power of the minority party (here, Democrats). Others may materially change the witness experience in congressional investigations. I address changes that will affect oversight and investigations below.
Congressional oversight power flows from the grant of legislative authority by the U.S. Constitution, and Congress has exercised that power since the first Congress. However, Congress’s oversight function was not recognized in public law until the Legislative Reorganization Act of 1946 required House and Senate committees to exercise “continuous watchfulness” over the programs and executive or judicial entities within their jurisdiction. In addition, there is ample political science research to confirm what everyone who works politics in DC knows: there is more emphasis on congressional investigative power during periods of divided government when the party that controls the White House does not control both houses of Congress.
New Committee Names
Republicans changed names of the House’s primary investigative committee to the Committee on “Oversight and Accountability,” formerly known as the “Oversight and Reform” Committee, or in my Hill era, “Oversight and Government Reform.” See Section 2(j). This is one of those largely cosmetic changes, given that the committee’s jurisdiction remains essentially unchanged. However, these changes in title tend to have ideological views and political messaging underpinning them. A shift from “Reform” to “Accountability” suggests a more adversarial posture.
New Committees, Subcommittees of Note
The new House majority established, or the Rules reference the coming establishment of, three new investigative committees of note:
(1) The “China committee.” It is formally named the “Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party.” See H. Res. 11. The Select Committee has a mandate “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.” It was the first bipartisan win for McCarthy, passing by a remarkable 365-65 vote.
(2) A Covid Origins subcommittee. The Rules establish the Select Subcommittee on the Coronavirus Pandemic “to investigate, make findings, and provide legislative recommendations on the origins of the Coronavirus pandemic.” It is a subcommittee of the Committee on Oversight and Accountability, like the one that preceded it during Democratic control: The Select Subcommittee on the Coronavirus Crisis. As a “select” subcommittee, the Speaker has the authority to choose the membership. The Select Subcommittee may not markup legislation, and it must issue a final report of its findings to the House by January 2, 2025. See Sec. 4(a). It also allows staff to engage in questioning at hearings and allows Members to ask questions in periods longer than five minutes. Both of these shifts tilt in favor of more penetrating investigative proceedings.
(3) The Select Subcommittee on the Weaponization of the Federal Government. This Select Subcommittee is set to have broad jurisdiction to investigate intelligence and law enforcement activities, including “ongoing criminal investigations.” See H. Res. 12. While that may sound alarming to some ears, it is likely more of a signal of investigative priorities than a legally material statement of jurisdiction. Congress has long asserted the prerogative to investigate matters that could implicate ongoing criminal investigations, and the Executive Branch has long asserted confidentiality interests in response to congressional requests that the Department of Justice deems could undermine criminal cases. The authorizing resolution delegates unilateral subpoena power to the subcommittee chair. Like the pandemic origins subcommittee, this committee extends the five-minute question rounds limitation and allows for staff questioning. It too must issue a final report to the House by January 2, 2025.
Committee Oversight Plans
Section 2(e) “restores the requirement that each standing committee (except the Committees on Appropriations, Ethics, and Rules) vote to adopt an…oversight plan.” That can often be a helpful instrument in assessing the priorities of new committee chairs. I wrote a piece analyzing oversight plans for the 114th Congress, noting that “one can glean valuable information about committees’ recent activity and upcoming priorities” from them. Under the new Rules, Committees must submit plans to the Committees on Oversight and Accountability and House Administration by March 1, and then from Oversight to the full House by April 15 “to ensure effective coordination of the plans.”
Limitation on a Potential Minority Party Power
Sec. 3(i) of the new Rules limits the “Seven Member Rule,” a statutory vehicle that allows any seven members of the Committee on Oversight and Accountability to make a request that has the force of compulsion. Thus, under the statutory language, seven Democrats could invoke that statute without reference to the chair. In effect, it creates a potential functional equivalent of a subpoena that can be exercised by the minority party. As noted in the D.C. Circuit opinion in Carnahan v. Maloney:
Section 2954 is distinct from Congress’s institutional authority to request or subpoena documents and witnesses. Those measures require formal authorization by Congress, a Chamber of Congress, or a committee. But an information request under Section 2954 can be made by just a small group of legislators—a true minority—who make the individual judgment to seek the information as a means of better informing their committee work.
The Seven Member Rule has long been contested by the Executive Branch. At present, the Carnahan v. Maloney case, has a writ of certiorari pending to seek Supreme Court clarification as to whether individual members have standing to enforce the Seven Member Rule in federal court. (The Court of Appeals held that they do.)
The new Rules require “that the chair of the Committee on Oversight and Accountability 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.” Thus, this provision effectively blocks Democrats from making use of the Seven Member Rule on a party-line issue.
New Ground Rules for Witnesses
The new Rules create a presumption against remote witness appearances in committee proceedings. Part of this is consistent with the easing of pandemic restrictions generally, and part of this is a piece of a broader effort by the incoming Majority to push back against proxy voting by Members, public access restrictions to the Capitol complex, and remote work by federal employees. The new Rules provide:
limited authorization to a chair of a committee to allow witnesses to appear remotely at committee and subcommittee proceedings. This subsection applies only to witnesses appearing in a non-governmental capacity and in accordance with regulations issued by the chair of the Committee on Rules and printed in the Congressional Record.
In addition, the new Rules empower congressional staff to take depositions. Older versions of the rules required Member attendance at depositions, which diluted the threat of a subpoena to a deposition. That leverage often allowed counsel for witnesses to negotiate some concession on testimony logistics in return for an agreement to voluntarily appear for a transcribed interview conducted by congressional staff. Now, Section 3(k) Subsection (k) provides committees “the authority to order the taking of a deposition by a member or counsel of such committee and limits persons who can attend depositions to members, committee staff, an official reporter, the witness, and up to two, personal, nongovernmental attorneys.”
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The incoming Majority has signaled it will scrutinize the Biden family, the Biden administration, and large segment of the private sector. This new Rules package suggests that the new Republican leadership in the House will make good on its promise to pursue that aggressive oversight agenda, and it has enhanced its capacity and powers to do so.