Corporate Client Risks Rise With Increased Congressional Probes

Congressional oversight is an increasing concern for lobbyists and lawyers grappling with corporate clients’ risk in Washington. It’s likely to get even more perilous in the upcoming election year.

That’s a main takeaway from the forthcoming report, “When Congress Comes Calling,” an update from the Project on Government Oversight, a watchdog advocacy group, and the law firm Jenner & Block, shared first with Bloomberg Government. It will be released Thursday.

As Congress struggles to move legislation, especially with midterm campaigns next year, lawmakers increasingly will turn to high-profile investigations and hearings to drive their messaging and to draw attention to pet policy issues. Private-sector clients, beware, say those in the practice

“There has been less opportunity for legislation in recent years, so one of the ways members of Congress and committee chairs can effect change is by holding a hearing on something,” including hauling in a CEO, said Emily Loeb, a partner in Jenner & Block’s congressional investigations practice, in an interview.

Clients, she said, need to view their risks and opportunities “holistically,” thinking of both oversight and legislative goals.

The rise in investigations has sparked an uptick in interest from K Street lobbyists and fixers.

Lobbying clients that disclosed “congressional oversight” on quarterly lobbying reports increased about 50% in the third quarter of this year when compared to the same period in 2017, according to congressional filings. Much congressional investigations work, though, is legal and not subject to disclosure under the Lobbying Disclosure Act.

The new volume notes that litigation related to congressional oversight is also on the rise—and likely to continue.

“More and more, the interbranch struggle is happening, so Congress is having to turn to the private sector to conduct investigations,” said Ashley Callen, who co-chairs Jenner & Block’s congressional investigations practice.

‘Muscular’ Probes

Callen, who worked on the Hill for Speaker Mike Johnson (R-La.) as general counsel, said the report, first published in 2009 and updated last in 2017, is the “seminal manual for congressional investigations” and is used to train Hill staffers and others working on probes.

She joined Jenner & Block six months ago and put the old 300-plus-page volume on her shelf and decided it was time for an update, she said in an interview.

“It was quite a lift for our team,” she said. “It speaks to the growth in this area of the law.” The original author, Mort Rosenberg, a POGO congressional scholar who had been a senior legal analyst with the Congressional Research Service, died this year.

Congress is already more aggressive in its investigations, and those will be a key tool for lawmakers’ messaging during next year’s campaigns, said Matthew Klapper, a co-chair of Jenner & Block’s congressional investigations practice.

Some of the findings note House committee chairs are exercising new power to compel witnesses to come in for closed-door depositions with congressional staff and without members of Congress.

A big shift, the report found, is an increase in Congress’ investigatory tools used to get information from the private sector. Most committee chairs in the House also can issue subpoenas without needing input from a panel’s ranking member.

The “muscular use of congressional oversight authority has continued to accelerate,” it said.