Second-term presidents have been dogged by scandals: Nixon and Watergate; Reagan and Iran-Contra; Clinton and that stained dress; George W. Bush and the Valerie Plame spy leak. So as Barack Obama settles into the White House for four more years, legislators on Capitol Hill are already digging for a similar embarrassment as they try to impede his first-term accomplishments. There were surprisingly few large-scale congressional investigations during 2012, at least for an election year, said Robert Kelner, chairman of Covington & Burling’s election and political law practice group. But he expects that to change. “I think there is a bit of pent-up demand,” Kelner said. “And I think that Republicans in the House, in particular, are gearing up to launch second-term investigations of the Obama administration.”
In the Senate, Democrats are expected to use their majority to investigate Wall Street and big financial institutions, including JPMorgan Chase & Co. and its “London Whale” trading loss. They also could tackle broad privacy concerns involving Internet and technology companies and the collection of personal information, attorneys said. Of course, it’s impossible to say whether congressional inquiries will uncover any real scandals, or which topics will catch fire. But House Republicans have already indicated plans to dig into a number of lingering issues: the implementation of the Affordable Care Act; the legitimacy of the Consumer Financial Protection Bureau; greenhouse-gas regulations from the U.S. Environmental Protection Agency (EPA).
“These are almost irresistible for investigations,” said former Representative Rick Boucher (R-Va.), who now leads Sidley Austin’s government-strategies group. “Anything that casts doubt on what that agency is doing is irresistible.”
ISSA VS. WHITE HOUSE
House Oversight and Government Reform Committee Chairman Representative Darrell Issa (R-Calif.) will continue as a leading White House antagonist — as he was last year during the Operation Fast and Furious probe, which resulted in a battle over separation of powers and contempt of Congress charges against Attorney General Eric Holder Jr.
While Issa’s office has not released an agenda for the year, the committee’s general counsel, Robert Portman, said during a Gibson, Dunn & Crutcher webcast on January 25 that members would focus on a traditional “waste, fraud, misuse” agenda. That includes an investigation into information-technology contract procurement and allegations of wasteful Medicaid fraud reimbursements, with as much as $15 billion overspent in New York, Portman said. The committee will also investigate allegations that the head of an unspecified agency interfered with an inspector general’s investigation, he said.
Some changes on key Senate committees could generate investigations, said Michael Bopp, a Gibson Dunn partner who played a role in numerous investigations as a former staff director and chief counsel of the Senate Committee on Homeland Security and Governmental Affairs.
Senator Tom Carper (D-Del.) is the new chairman of the homeland security committee, which holds broad oversight jurisdiction. The new ranking minority member of the full committee is Senator Tom Coburn (R-Okla.), who brings an investigative staff and a history of looking for the biggest frivolous government contracts each year.
That panel’s permanent subcommittee on investigations (PSI) chairman, Senator Carl Levin (D-Mich.), will continue investigations into offshore tax and money laundering issues, Bopp said. Senator John McCain (R-Ariz.), the ranking minority member on the subcommittee, was active as chairman of the Committee on Armed Services investigating companies and contracting issues.
“He specifically wanted and sought out PSI and actually leapfrogged over another member to get PSI; has an investigative staff; and I think there’s a relationship there between Senator Levin and Senator McCain,” Bopp told the webcast audience. “I would expect PSI to be more active in the coming Congress than it was in the previous Congress.”
Government-investigations lawyers predict additional efforts to thwart some of the agency actions during the past four years that Republicans oppose. The implementation of the Affordable Care Act is likely to spawn investigations, including into the operations of the Independent Payment Advisory Board and the federal health care exchange, Boucher said.
Republicans in the House dislike the board, established in 2010 to oversee payments to health care providers and determine doctor and hospital reimbursements. And the rules for federal health care exchanges, a key part of the health care law, have yet to be finalized.
The House is likely to continue investigations into the EPA’s efforts to impose greenhouse-gas controls, especially a pending rule that is widely assumed to impose controls on existing emitters, Boucher said.
The EPA is fielding inquiries about the possible use of unofficial email accounts to do official business, including one for Administrator Lisa Jackson, who will resign in February. Senator David Vitter (R-La.) and Issa have already demanded more information about the accounts.And expect hearings on the legitimacy of the consumer protection bureau, created by the Dodd-Frank Act of 2010, after a U.S. Court of Appeals for the D.C. Circuit ruling invalidating Obama’s recess appointments last year to the National Labor Relations Board. Although the court did not address the consumer bureau directly, Director Richard Cordray’s recess appointment was made on the same day and under the same assertion of executive power.
Todd Ruger can be contacted at firstname.lastname@example.org.