by Robert Kelner, Brian Smith, Angelle Baugh, Brendan Parets, Perrin Cooke, Bill Sokolove, and Darcy Slayton

On May 21, the House Committee on Oversight and Reform’s “Oversight Plan” was published, after being submitted for publication by Committee Chairwoman Carolyn Maloney (D-NY) over a month ago. The Oversight Plan outlines the “topics designated for investigation, evaluation, and review” by the Committee over the next two years. The Oversight Plan provides a very useful roadmap of the Committee’s investigative priorities and should be seen as a fair warning to the industries and companies identified in the plan.

The Committee’s Oversight Plan is required by the House Rules. Under House Rule X, Clause 2, each standing committee of the House is required to submit an oversight plan to the Oversight Committee. The Oversight Committee then reviews the plans and reports to the full House on each committee’s plan and the Oversight Committee’s recommendations for coordinating oversight activities. The 2021 Oversight Plan included the Oversight Committee’s compilation that, along with its own plan, included the oversight plans of all other House committees. The nearly 300-page compilation generally indicated an interest in oversight of the coronavirus crisis, health care, economic prosperity and infrastructure investments, and climate change and the environment.

In the 2021 Oversight Plan, the Committee set out its priorities across a variety of industries and issues. The Committee also outlined priorities for each of its Subcommittees, including the highly active Select Subcommittee on the Coronavirus Crisis. These numerous priorities feature some topics of consistent congressional interest, such as drug pricing and government procurement decisions, as well as fresh efforts to address issues attracting new or renewed political interest, such as domestic extremism and structural racism.

As expected, many of the Committee’s oversight and investigative priorities map onto marquee policies championed in proposed legislation by the House Democratic leadership. For example, the Oversight Plan’s continued focus on the pharmaceutical industry coincides with recent and proposed legislation to address drug pricing and access issues, and the Committee’s plan to investigate facial recognition technology coincides with congressional interest in addressing privacy issues in technology.

The 2021 Oversight Plan comes in the midst of one of the most active periods of congressional oversight and investigations in recent memory. As we have previously detailed, the Democratic majority in the House promised a wave of investigations after the 2018 elections, and they delivered over the past two years. We saw very active oversight and investigations across Congress, including from traditionally active committees—such as the Oversight Committee and the Energy and Commerce Committee’s Subcommittee on Oversight and Investigations—and many other committees, including the Financial Services Committee and the Education and Labor Committee. We expect that many of the dynamics that spurred investigations in recent years will continue for the near future. The change in the White House, meanwhile, may shift some of the oversight attention from the executive branch to private industry, as we explored in a prior blog post.

The following summarizes key portions of the Committee’s Oversight Plan that are likely to have implications for the private sector.

• Investigations of Private Companies and “Corporate Accountability.” Consistent with the Committee’s history of using investigations to highlight corporate practices that Congress finds concerning, the Oversight Plan pledges that the “Committee will continue to examine the role of the private sector in facilitating societal ills, including examining how private entities may have undermined human rights, facilitated corruption, contributed to the opioid epidemic, injured customers, and engaged in other activity that harms the public.” As always, any allegations of corporate misconduct and public harm are likely to attract congressional investigations.
• Continued Focus on Specific Industries. Certain industries are likely to continue to be the subject of specific investigative scrutiny.
  • Healthcare: Regarding the healthcare industry, the Committee announced that it will “examine the effectiveness and equity of [the] national response to the coronavirus pandemic…and ensure the appropriate expenditure of taxpayer funds,” including with respect to marginalized populations.
  • Pharmaceuticals: In the pharmaceutical space, the Committee plans to “investigate the actions of drug companies in aggressively raising the prices of prescription drugs.” Several such investigations are already ongoing and the Committee will also “launch additional inquiries as appropriate to further examine aggressive pricing practices.”
  • Technology: While the Committee has historically been very focused on cybersecurity incidents at private companies, the issue has taken on increased urgency with recent reports of significant cyberattacks affecting federal agencies and the private sector. In the Oversight Plan, the Committee said that it will “examine ways to ensure that agencies and corporate entities take appropriate steps to protect government and business entity networks.” In addition, the Committee signaled that it will continue to examine the use of facial recognition technology, as well as online “disinformation,” which may involve additional inquiries to social media companies and the technology industry more broadly.
  • Energy and Environment: The Committee announced it will “continue to examine…private sector policies and actions related to the environment, natural resources, and public health,” with a particular focus on marginalized communities.
  • Industries Implicated by Executive Oversight Priorities and Government Procurement: Other industries may be subject to Committee scrutiny if implicated by the Committee’s executive oversight priorities. In addition, where the Committee is examining the federal government’s procurement decisions, it is highly likely that private companies awarded contracts by agencies will receive document requests and questions about business dealings and communications with government officials.
• COVID-19-Related Investigations. The Select Subcommittee on the Coronavirus Crisis has been an extremely active and high-profile player in Congress’s efforts to “conduct a full and complete investigation” of “the use of taxpayer funds and relief programs to address the coronavirus crisis,” including “root[ing] out waste, fraud, and abuse in pandemic-related relief programs, contracts, and loans.” Among the areas of focus for the Select Subcommittee in the new Congress are the “development and distribution of coronavirus vaccines”; the “acquisition and distribution of supplies” such as PPE; the occurrence of coronavirus outbreaks; and the implementation of the Paycheck Prevention Program and other financial support initiatives under the CARES Act, such as the aviation industry Payroll Support Program.
• Other Subcommittee Investigations. The Oversight Plan sets out priorities for each of the Committee’s five standing subcommittees. In recent years, the Committee’s subcommittees have increasingly mounted and directed investigations on their own. One of the most active, the Subcommittee on Economic and Consumer Policy, “intends to conduct robust oversight and investigations of consumer protection matters, including but not limited to”: “[p]rotection of personal care products users”; vaping; financial consumer protection in banking, education, housing, and telecommunications; “[c]ybersecurity and digital privacy in the private sector”; “matters affecting infants and children”; and “[f]ederal acquisition policy unrelated to national security and information technology.”
• Matters Involving Lobbying and Government Ethics Issues. The Committee is increasingly focused on bringing to light the details of corporate influence in government, and in several recent investigations has requested internal communications related to lobbying efforts of private companies. Similarly, consistent with proposed legislation H.R. 1 (the “For the People Act”), which is a major Democratic policy priority “intended to clean up corruption in government,” the Committee’s plan indicated a focus on “executive branch ethics,” “transparency,” and “accountability.”
• Leveraging GAO and Inspectors General Inquiries. Although the Committee routinely initiates and directs its own investigations, it also frequently relies upon or incorporates the findings of agency Inspectors General and the Government Accountability Office (GAO). The Committee recently held a hearing in March to review the GAO’s biannual “High Risk” report, and it intends to “investigate compliance with GAO audits, evaluations, and investigations, and compliance with agency Inspectors General.” Similarly, in April the Committee held a hearing on “restoring independence of inspectors general.” Accordingly, individuals and companies responding to inquiries from GAO or Inspectors General should be well aware of the possibility that responses, and any documents submitted as part of a response, may ultimately be made available to Congress.

Robert Kelner and Brian Smith are partners, Angelle Baugh and Brendan Parets are special counsel, and Perrin Cooke, Bill Sokolove, and Darcy Slayton are associates, at Covington & Burling LLP. This post was originally published on Covington’s Inside Political Law Blog.

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