As Democrats Fear Political Hammer, House Broadens Subpoena Authority

Chairs will get more investigatory power to call witnesses in the new term.

House Rules Committee Chairman Pete Sessions, R-Texas.
AP Photo/Molly Riley
Jason Plautz
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Jason Plautz
Jan. 10, 2017, 8 p.m.

Republican committee chairs will have broader subpoena powers in the new term, despite Democratic concerns that expanded authority has led to abuse of targets as varied as federal scientists and Planned Parenthood.

House rules finalized last week will expand the ability of committees to depose witnesses without a member present. Coming a term after several committee chairs were given more subpoena authority, Democrats fear that Republican members and staff have been given too much power to use investigative authorities that used to be more sparingly applied.

The new rules allow a witness to be deposed without a member present after a committee vote or if the witness agrees to have only a staff deposition, which had been granted to a few committees in the previous term. Caroline Boothe, a spokeswoman for House Rules Committee chairman Pete Sessions, said the change was meant to allow committees to continue oversight work over long recesses when members would not be in Washington and to prevent witnesses from exploiting a member’s schedule to get out of answering questions.

It’s a power that was used in investigations into drinking-water contamination in Flint, Michigan; alleged contamination at a National Institutes of Health facility for manufacturing drugs; and payments of cost-sharing subsidies without congressional appropriation.

Democrats fear that staff don’t have the same accountability as members and that any expanded subpoena power could be wielded as a political tool against outside groups. Former Rep. Henry Waxman, who spent six terms as the top Democrat on the Oversight Committee, said he could recall staff members asking witnesses about drug use and romantic relationships, with no check from committee members.

“We need the rule of law, and without that it’s up to the whim of a chairman to issue a subpoena and up to the whim of a staffer to ask questions that are improper,” Waxman said. “This is an invitation to abuse that right.”

It also marks another expansion of subpoena authority at a time when Democrats have been trying to scale it back. In the 114th Congress, several committee chairs were given the power to issue subpoenas without consulting the ranking member (in the term before, that authority had been handed to the Oversight Committee).

That allowed several committees to go on a subpoena blitz; the Financial Services Committee issued 13, the Energy and Commerce Committee issued five, and the House Science, Space, and Technology Committee sent out 22.

In a letter to Sessions sent in the fall, 37 Democrats urged the Rules Committee to “correct this overreach,” saying that “neither Democratic nor Republican chairs should have this authority.

“The 114th Congress has shown that unilateral subpoena power can too easily be used as a weapon against those expressing views with which a committee chair does not agree, and we write to urge that this rule be changed to prevent further abuse and partisanship,” they wrote.

Republicans have defended their subpoena authority as a way to streamline investigations and combat what they say were uncooperative witnesses from the Obama administration (Boothe, for example, said witnesses in the cost-sharing investigation would only comply after subpoenas were issued).

The expansion comes as the new administration is expected to be friendlier to Republican interests. While Oversight Committee chairman Jason Chaffetz has said he will not “be a cheerleader for the president” and could investigate the new White House, he also told reporters that he would continue to probe Hillary Clinton’s use of a private email server at the State Department, according to CNN.

The Science Committee became a focus of the subpoena debate, with chairman Lamar Smith issuing nearly two dozen. Among his targets were federal scientists, who he accused of doctoring climate-change data, and environmental groups, who he said were colluding with state attorneys general (also subpoenaed) in a probe of whether Exxon covered up climate research.

Smith even held a hearing just to examine how broad the committee’s power actually was, with Smith defending his “con­sti­tu­tion­al ob­lig­a­tion to con­duct over­sight any­time the United States sci­entif­ic en­ter­prise is po­ten­tially im­pacted.”

Speaking at a conservative energy conference at the headquarters of the Heritage Foundation last month, Smith said that with Trump coming into office, “there won’t be near as many subpoenas in the coming Congress, I don’t think.”

A spokesman for the committee clarified that Smith “believes that the new administration’s agencies will be more forthcoming with the committee’s requests for information” than the Obama administration’s. Subpoenas issued last term must be renewed, but the committee has not announced any plans to do so.

Ranking member Eddie Bernice Johnson said she was “very concerned” about the latest changes.

“The majority wasted little time in abusing these new powers in ways that would have been unimaginable just a few short years ago,” she said. “Given these abuses, it would have been more appropriate to rescind the deposition authority rather than expand it.”

Boothe said that if Sessions “feels abuses are occurring, he will not hesitate to pull back these authorities.”

Waxman, now a lobbyist with Waxman Strategies, said he thought the new rules would make it too easy to harass private citizens, who would have to present documents, get legal representation, and answer questions sometimes out of the public eye.

“There’s too much power that’s unchecked,” Waxman said, “and I don’t feel great about members having it, let alone staff.”

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