The First 100 Days

In 1933, the first 100 days of a special session of the 73rd Congress saw the enactment of much of the legislative agenda of President Franklin Roosevelt's New Deal including the Emergency Banking Relief Act, the Agricultural Adjustment Act and the Economy Act. In fact, the Banking Act was passed by both Houses on the same day the President submitted the bill to Congress.

The first 100 days of the 110th Congress has not been as productive. When the Democrats assumed the leadership of the Senate and House in January, they outlined a legislative agenda of six high priority items which they hoped to quickly enact into law. As this session of Congress passes its first 100 day milestone in mid-April, none of these bills have passed both Houses and been sent to the President for his signature. While the priority bills had passed the House by January 18, the Rules of the Senate, which allow the Minority party to exert significant influence on the legislative process, has slowed progress on enacting the Democrats' agenda. The Democrats' bills which passed the House include:

  • Increasing the minimum wage from $5.15 to $7.25 an hour over two years.
  • Implementing all of the recommendations of the 9/11 Commission.
  • Expanded Federal funding for embryonic stem cell research.
  • Requiring the Medicare program to negotiate lower prices with drug companies participating in the Medicare prescription drug program.
  • Gradually reducing the interest rate on Government subsidized student loans from 6.8% to 3.4% by 2011.
  • Repealing about $14 billion in royalties and tax incentives for oil companies and shifting those funds to an alternative energy account to fund renewable energy and energy efficiency.

On April 19 the Senate failed to attract the 60 votes needed to invoke cloture on the Motion to Proceed to the Medicare Prescription Drug Price Negotiation Act (S.3), which would remove the provisions in current law (P.L.108-173) prohibiting the Federal government from negotiating the price of drugs with drug companies.

The vote was 55-42. To date, only the minimum wage increase and the increase in funding for stem cell research have passed the Senate but neither bill has been reported by a Conference Committee. President Bush has indicated he will veto the Stem Cell Research Enhancement Act (S.5) which passed the Senate on April 11 by a vote of 63-34. In fact while President Bush vetoed only one bill in the first six years of his Administration, he has already issued threats to veto 16 pieces of legislation since the 110th Congress convened in January. Given the power of the Minority party in the Senate and the re-energized veto plan of the President, the Democratic takeover of the Congress may not necessarily result in the enactment of a host of major bills backed by the Democrats, or if some are enacted into law, they will likely be significantly altered from the versions as they were originally introduced.

Both Chambers were able to adopt Budget Resolutions for FY2008. The Senate Budget (S.Con.Res.21), passed on March 23 by a vote of 52-47, establishes Federal revenues at $2,008,975,000,000. The House adopted its Resolution (H.Con.Res.99), with projected revenues of $2,050,797,000,000, on March 29 by a vote of 216-210.

The Road Ahead

One of the most important issues to be taken up in the near future is the conference to resolve the differences between the Senate and House passed versions of the Supplemental Appropriations Bill, U.S. Troop Readiness, Veterans Health and Iraq Accountability Act (H.R.1591). The House bill provides $95.5 billion for the war in Iraq while the Senate bill appropriates $93.5 billion. Both bills also contain different provisions on deployment of U.S. troops in Iraq and various benchmarks measuring progress for the Iraqi Government to meet over the coming months. The bills also provide for some domestic spending such as aid to spinach farmers, low income home heating assistance and children's health insurance for total spending of approximately $124 billion. When the Senate-House Conference resolves the difference between the two bills and the Conference Report is adopted by both chambers, the bill will be sent to the President who already has indicated he will veto it. The President objects to any provisions inserted by Congress, which seek to direct military tactics in Iraq and he also objects to the domestic spending contained in the bill. It has not been determined how the Congress will proceed on this issue in the face of the President's veto.

Next month, the Senate plans to take up a comprehensive energy bill. The comprehensive bill is expected to include separate bills to be voted out of the Senate Energy Committee, the Commerce Committee and the Finance Committee in the coming weeks. These bills will address such matters as increasing the amount of biofuels required by 2012 under the renewable fuel standard, climate change, energy efficiency, increasing Corporate Average Fuel Economy standards and an energy tax package.

Later in the Spring the Senate Leadership would like to turn to legislation to reform the nation's immigration laws. This bill would include provisions strengthening border security, increasing enforcement of existing immigration laws and establishing a path to earned legal status for immigrants who have already illegally entered the United States.

In the near future the House is expected to debate the Small Business Lending Improvements Act (H.R.1332), which would make changes to the Small Business Administration's (SBA) program, which assists small businesses in securing bank loans. The bill would also modify the SBA program, which provides financing of community economic development projects.

Kevin Faley is the Editor of Capitol View and a partner in Venable's Legislative Practice Group. Mr. Faley can be reached at 202.344.4706 or at kofaley@venable.com.

VENABLE'S CONGRESSIONAL INVESTIGATIONS GROUP ASSISTS A WIDE VARIETY OF CLIENTS

The general consensus in Washington is that very few topics falling under the jurisdiction of House and Senate oversight committees will be left unexamined. As the Washington Post correctly noted when assessing the potential for congressional investigations in the 110th Congress, "Every company that does business with the government could feel the impact, but contractors that benefited most from work in Iraq and Afghanistan, from homeland security initiatives or from Hurricane Katrina are especially likely to be under the microscope. Big ticket weapons programs are expected to garner special attention [as well]."

  • Senator Carl Levin (D-MI), Chairman of the Senate Permanent Subcommittee on Investigations, will aggressively investigate tax shelters, excessive credit card fees and interest rates as well as the role commodity speculation plays in the high cost of oil.
  • Speaker of the House Nancy Pelosi (D-CA), Senate Majority Leader Harry Reid (D-NV) and various committee heads “are planning several investigations into the Administration and its relationship with companies that the federal government hired or regulated.”
  • Senator Max Baucus (D-MT), Chairman of the Senate Finance Committee, will conduct vigorous oversight of rising health care costs across the country.
  • Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, will investigate the "President's program of warrantless wiretapping."
  • Rep. Bart Stupak (D-MI), Chairman of the House Energy and Commerce Oversight and Investigations Subcommittee, will examine the unregulated oil futures market, gasoline price gouging, online pharmaceutical sales and food safety, among other issues.
  • Rep. Henry Waxman (D-CA), Chairman of the Oversight and Government Reform Committee and perhaps the House's most dogged investigator, plans to "review whether there's profiteering going on, war profiteering or any other abuse by major corporations, of American citizens and consumers, whether they be pharmaceutical companies or the oil companies."

However, no subject will garner more congressional investigations than Iraq contracting. Four of the most experienced and tenacious Committee Chairmen, Rep. John Dingell (D-MI), Senator Joseph Lieberman (D-CT), Rep. Waxman and Senator Leahy, intend to investigate post-invasion contracts awarded in Iraq. Leahy bluntly

stated that he will investigate the "accountability over the use and abuse of billions of taxpayers' dollars sent as development aid to Iraq."

Since congressional hearings occur in an open forum and are often televised, witnesses are put in the unenviable position of publicly defending themselves – or their organizations – from a representative making accusations of corruption or criminal wrongdoing. Thorough preparation by qualified legal counsel can help individuals and organizations facing the scrutiny of a congressional investigation minimize the damage to their personal and professional reputations.

Beginning an Investigation

Congressional committee hearings may be broadly classified into four types: legislative, oversight, investigative and confirmation. Members of Congress may initiate investigations when they discover or identify issues that require new or updated legislation or congressional oversight. Topics for investigations might come from any number of sources, such as an exposé in the press, tip from a whistleblower or notification from the Government Accountability Office. While some members of Congress do not publicize their investigatory activities, others will issue press releases announcing their call for an investigation. Thereafter, when required by rule, committees or subcommittees vote to launch an investigation and staff investigators will begin researching the issue to determine the pertinent facts and witnesses.

Chairman’s Letters, Subpoenas Duces Tecum and Prehearing Activities

Once the staff identifies relevant witnesses, the committees will request documents related to the investigation. They can do so in two different manners. One method, called a “Chairman’s Letter,” is a voluntary request. The second method is issuance of a subpoena duces tecum, which requires documents to be produced by a specific date under penalty of law.

Receipt of a Chairman’s Letter or subpoena duces tecum is generally how an organization first learns that it is involved in a congressional investigation. It is also the point when fear and concern often arise. Because involvement in such investigations is a rare occurrence, most organizations do not have contingency plans to assess and respond to congressional subpoenas. This can put the organization's staff in the difficult position of trying to determine, on their own, what constitutes a responsive document while rushing to meet an impending deadline.

A qualified law firm with experience in congressional investigations can greatly assist an organization in this situation. Such a law firm can:

  • Build a good-faith working relationship with congressional staff.
  • Negotiate with staff investigators and often limit the scope of the subpoena.
  • Get an extension on the subpoena’s return date and effectuate "rolling productions" of requested documents if necessary.
  • Allow the organization to focus on running its day-to-day business.

The firm also can assist the organization by taking over primary responsibility for: the response, gathering the appropriate documents, reviewing them for substance, cataloguing them and delivering them to staff investigators. The firm can also help prepare individuals within the organization for interviews by Congressional investigators. These can take the form of either voluntary interviews or depositions. Arguably, the single most important part of any congressional investigation for an organization is the interview. How an organization and its witnesses respond will directly impact the tenor of any subsequent hearings. Furthermore, if the congressional staff believe that an organization is acting in good faith, this greatly increases the likelihood that the congressional representative conducting the hearing will do the same. Thus, it is imperative that the organization, its staff and legal counsel establish a good-faith working relationship with the congressional staff in order to negotiate the potential scope of the interview and to maximize the protection the committee might afford to trade secrets or privileged information.

Likewise, all witnesses must work with the law firm to prepare thoroughly before participating in these interviews. The law firm must have in-depth knowledge of all of the facts pertinent to the congressional investigation and understand each witness's knowledge of those facts. If the law firm does its job appropriately, it will be in a position to determine whether the organization or the organization’s witnesses have any potential criminal and/or civil liability that may be exposed in the interview. If there is possible criminal and/or civil exposure, the organization may want to decline to participate in the interview, a decision which must be determined on a case-by-case basis. To determine if there is possible civil or criminal exposure, organizations should have the law firm conduct a limited internal investigation into the subject area of the congressional hearing. By having the law firm conduct the internal investigation, any information discovered during the process will be protected by the attorney-client privilege and the attorney work-product doctrine, thereby keeping it from the reach of criminal prosecutors and civil litigants. It should be noted that neither the attorneyclient privilege nor the work-product doctrine has any basis in law with respect to the legislative branch of government. The applicability of these privileges rests solely in the discretion of the Congressional Committee.

The Congressional Hearing General Overview

Most congressional committees and subcommittees require witnesses to provide a written statement detailing their proposed testimony. The written statement is, most often, the basis for any opening statement made by the witness. It is often submitted to the committees via email.

A lengthy written statement should provide the committee with the information it needs to understand the organization’s position on the issue. The oral presentation, however, should be concise and highlight the most pertinent aspects of what the witness wants to tell the committee regarding the subject matter at hand. While an organization does not have a Fifth Amendment right against self-incrimination, the privilege may be applicable to its witnesses. If witnesses invoke their Fifth Amendment privilege against self-incrimination, they should do so in a manner that leaves no doubt as to their intention. If they make the mistake of explaining why they are invoking the Fifth Amendment, they run the risk of inadvertently waiving the very right they are relying on for protection. In those cases, the committee chair will determine whether the witness has waived the right.

The Hearing

Generally, all congressional hearings follow roughly the same format. Each member, starting with the chairperson, gives an opening statement. Then the witnesses are introduced and, if the committee is required or chooses to, sworn in. The witnesses are then allowed to give a brief opening statement, which most often is a summarized version of his or her written statement. Once the witnesses finish their opening statements, each committee member is afforded the opportunity to question the witnesses. While this is often referred to as the “five-minute rule,” the length of time for questioning varies between committees. Once the first round of questioning is complete, the committee may decide to continue questioning the witnesses or they can excuse the witnesses, call the next panel of witnesses or close the proceedings. If the chairperson chooses to end the questioning and the hearing, he or she often will make a final statement.

There is no limit to the types of questions committee members can pose to a witness. However, if a committee member asks a question that the witness believes is irrelevant or not within the jurisdiction of the committee, the witness may object to the question through the chairperson. It is then up to the chairperson to decide whether to order the witness to answer the question. If the chairperson decides to allow the question, the witness must answer. If, however, the chairperson determines the question is irrelevant, the witness does not have to answer. However, most chairpersons will not rule a fellow committee member's question out of order.

Government Accountability Office and Inspectors General

An additional tool often utilized by Congress is a supplementary investigation performed by either the Government Accountability Office (GAO) or the Inspector General of a specific government department or agency. As a result, an organization can face simultaneous inquiries from three separate investigatory bodies. For example, on November 16, 2006, the Senate Permanent Subcommittee on Investigations held a hearing on the Defense Travel System (DTS), where both the Acting Inspector General of the Department of Defense and the Director of the Financial Management & Assurance Team from GAO testified concerning the findings of their separate inquiries into DTS. This testimony supplemented the investigation performed by the subcommittee staff.

Conclusion

Congressional investigations and hearings are unique proceedings that have separate and distinct rules from judicial law as practiced by most law firms or legislative advocacy as practiced by most lobbying shops. In addition to those key differences, each committee and subcommittee has its own distinct rules and history. These factors make responding to a congressional investigation a complex and delicate task. Venable's Congressional Investigations team represents more than half a dozen clients before four separate congressional investigative committees on both the House and Senate sides of the Hill, including the House Oversight and Government Reform Committee, House Energy and Commerce Committee, House Transportation and Infrastructure Committee and the Senate Permanent Subcommittee on Investigations. These clients range in size from large Department of Defense and Homeland Security contractors to small start-ups. Thorough preparation and retention of qualified counsel exponentially increase the possibility of a positive outcome during a congressional hearing or investigation. Qualified counsel will thoroughly investigate the facts at issue and bring understanding of the committee, rules, players and processes that will drive the investigation. They will help your company develop a nuanced response strategy that will unambiguously tell "your side of the story," minimize any collateral damage from a public hearing and, to the greatest extent possible, prevent the dissemination of privileged, confidential or propriety information.

Raymond Shepherd is the former Chief Counsel and Staff Director of the U.S. Senate Permanent Subcommittee on Investigations. He is a partner in the Legislative Practice Group and leads Venable's Congressional Investigations Group. Mr. Shepherd can be reached at 202.344.4745 or at rshepherd@venable.com.