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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