This is the tenth and final post in this year’s series examining important trends in white collar law and investigations. Be on the lookout for a roundup of our 2022 White Collar Year in Preview Series shortly.
Last March, we anticipated that the 117th Congress would use the powerful investigative tools at its disposal to drive its legislative agendas. Since then, we have seen congressional inquiries focusing especially intensely on climate change and prescription drug costs. This coming year, these two legislative priorities for the Biden Administration and Congress will continue to be the primary, but hardly the only, driver of congressional investigations.
The highest profile investigation on the Hill right now remains the Select Committee inquiry into the events of January 6, where, with the exception of some inquiries to social media companies, the private sector has not been a focus. But with many of Congress’s other investigative priorities, private sector entities are the chosen targets, and these investigations attract plenty of attention in their own right.
Looking back at the past year and at the possibility of shifting control in this fall’s midterms, here’s what we can expect from congressional investigations of the private sector in 2022:
- Congressional interest in climate change and health care costs, especially drug pricing, will continue to be intense, reflecting their importance to the Democrats’ legislative agenda.
- Debates over large technology companies and social media platforms will continue to be of great interest to Congress, with new areas of inquiry in 2022, like youth mental health.
- Investigations of the COVID-19 pandemic have largely focused on the government response, but the House Select Subcommittee on the Coronavirus Crisis has examined several health care providers and countermeasure manufacturers, and may expand its scope to more private sector actors and the broader economic effects of the pandemic.
- With rising inflation driving headlines over the past year, congressional committees began investigating pricing practices and market concentration in several industries. We expect such headline issues to continue to draw congressional attention.
Let’s take a closer look at these and other areas of congressional investigations.
Keeping Up the Pressure on Drug Pricing
Congress can be expected to keep the pressure on the pharmaceutical industry in 2022, building on several years’ worth of work to drive this year’s legislative efforts. This past December, the House Oversight Committee released a final staff report that summed up nearly three years of investigative efforts into pharmaceutical companies, citing findings that Medicare negotiations like those contained in the House-passed Build Back Better legislation could save the federal government billions of dollars.
Congressional focus on the pharmaceutical industry extends beyond pricing practices. Over the past six months, Hill leaders have expressed interest in reviewing the use of accelerated drug approvals by the Food and Drug Administration (FDA). Congress can shape policy in this area through the Prescription Drug User Fee Agreement (PDUFA) reauthorization process, due this year. FDA’s use of accelerated review was a popular topic at the first hearing on PDUFA in February, with Representative Jan Schakowsky (D-IL) forcefully arguing “we need to look at accelerated approval.”
Climate Change Efforts Heat Up
As part of legislative efforts on climate change, Congress has been investigating the fossil fuel industry on multiple fronts, with a stated commitment to large, long-term investigations of issues from allegations of climate change misinformation to assessments of companies’ clean energy pledges.
In October, the House Oversight Committee brought executives of four large oil companies to the Hill for a hearing that Committee Chair Carolyn Maloney (D-NY) compared to 1994’s congressional hearings with major tobacco executives. Maloney announced that the committee would be serving the companies with subpoenas following the hearing, later accusing the companies of having answered the Committee’s voluntary document request with “largely . . . non-substantive, publicly available materials, such as press clippings, regulatory filings, and pages from the entities’ own websites.” In February, the Committee held another hearing examining the same four companies, focused on their pledges to increase investments in clean energy.
Although a subsequent hearing with board members from the same companies was canceled, there is no sign of Congress’ interest in these companies relenting, especially with oil prices increasing. Representative Maloney made her intentions clear in January, saying, “We’ve only begun our investigation into the fossil fuel industry’s role in causing the climate crisis and spreading disinformation.” As oil prices have risen rapidly amidst the war in Ukraine and sanctions on Russia, oil and gas companies may come under scrutiny about pricing and other policies this year as well.
A New Bipartisan Focus in Big Tech Investigations
Large technology companies, especially social media platforms, continue to attract passionate bipartisan interest. In September, bipartisan subcommittee leaders Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN) announced an investigation into social media’s harms to youth, based on the Wall Street Journal’s reporting that companies had hidden information on the issue. The subcommittee has now held two hearings with four tech executives on the topic, and in November, the House Oversight Committee requested information from TikTok about practices that may be harmful to youth. Given the existing bipartisan interest and the progress on bipartisan tech legislation, this is likely to remain an area of intense investigation even if control of Congress shifts in the midterm elections.
Although Republicans lack the power to issue subpoenas unilaterally, members in the minority have also made clear some of their own areas of interest. In February, they wrote to Oversight Chair Carolyn Maloney to request a committee hearing on GoFundMe’s decisions around fundraisers for the Canadian trucker convoy, and the minority members wrote separately to GoFundMe requesting documents. The Committee majority also launched an investigation into technology companies’ role in the convoy, requesting information from Facebook about coordination on the platform.
COVID-19 Oversight Continues
Congressional investigations regarding the COVID-19 pandemic have generally focused on federal agencies rather than private actors, but one ongoing area of scrutiny for the private sector is the Paycheck Protection Program (PPP), which made more than $900 billion in potentially forgivable loans to businesses. Last year, the Select Committee on the Coronavirus Crisis sent letters requesting information from six different financial technology firms, pointing to reports that the firms were “linked to a disproportionate number of PPP loans made to fraudulent or ineligible applicants.” That investigation has not yet concluded, and the White House’s announcement of stepped-up enforcement against pandemic fraud could drive continuing congressional interest.
Additionally, the Committee has expressed an interest in investigating misinformation around COVID-19 treatments, requesting records from telehealth companies on the issue. Last year, the Committee also investigated vaccine production by the federal contractor Emergent BioSolutions, which involved requesting information first from Emergent and then Emergent partners Johnson & Johnson and Pfizer. In December, the Committee released its Emergent findings, as well as findings of an investigation into primary care provider One Medical’s practices around vaccine prioritization. Potentially revealing a broader focus for 2022, the Select Committee recently launched one of its first investigations into the broader economic effects of the pandemic, joining the House Oversight Committee in requesting information from three major shipping lines about high shipping prices during the pandemic.
Financial Innovation Draws Inquiries
Congressional committees with oversight of the financial industry have drawn attention in the past year to several areas of rapid change, including the development of Special Purpose Acquisition Companies (SPACs) and the growth of cryptocurrencies. In September 2021, four Democratic senators on the Banking Committee requested information from six firms that work on SPAC transactions requesting information on the deals they had led. This may be just the beginning of congressional interest in SPACs, with the senators stating that the inquiry will inform “what sort of Congressional or regulatory action” is appropriate for the industry.
Amidst turbulent cryptocurrency prices and calls for Congress to regulate the growing industry, the House Financial Services Oversight Subcommittee brought executives of major cryptocurrency companies to the Hill last July. Citing the work of the Biden Administration’s Working Group on Financial Markets, Senate Banking Committee Chair Sherrod Brown (D-OH) issued requests for information from eight different companies that work with “stablecoins,” cryptocurrencies tied to other commodities or currencies. Over the past several months, both the Banking Committee and the House Financial Services Committee have held hearings with stablecoin experts and industry leaders, including one CEO who was also subpoenaed in October by Securities and Exchange Commission. During the Banking Committee hearing, Senator Brown noted cryptocurrency companies’ high-profile TV advertisements during this year’s Super Bowl, indicating significant and continuing congressional interest in the industry more broadly.
Investigating Inflation and Cost of Living Concerns
As meat prices rose substantially over the past two years, cattle ranchers and other meat producers worked to draw attention to concentration and purchasing practices in the meatpacking industry. The Senate Judiciary Committee brought top meatpacking executives to Congress for a hearing in July 2021, while the House Oversight Subcommittee on Economic and Consumer Policy requesting pricing information from them this January.
In our blog post last March, we noted that Congress was using investigations to build a case for antitrust reforms, and we expect that Congress will continue citing inflation, supply chain concerns, and rising consumer prices as part of these broader efforts, as they have with meatpacking already.
While Republican members of Congress have shown significant interest in inflation concerns, some have also criticized their Democratic colleagues’ priorities and proposed focusing instead on regulations by the Biden administration—a harbinger of potential priority areas if they were to retake the House.
Separately, Democrats in the House and Senate have also been probing pricing practices and other issues tied to private equity investment. In March 2021, the House Ways and Means Oversight Subcommittee held a hearing on the role of private equity in health care, followed by the subcommittee’s chair, Bill Pascrell (D-NJ), requesting that the Government Accountability Office examine private equity’s role in the industry. The Senate Banking Committee and Senator Elizabeth Warren (D-MA) have requested information from companies regarding private equity’s influence in other industries as well, including housing and manufacturing.
Ongoing Scrutiny for Organ Procurement Organizations
Last July, as part of a webinar on how to navigate congressional investigations, we looked at the case study of organ procurement organizations (OPOs), nonprofit organizations that receive federal contracts to allocate the nation’s supply of organs. This area has been a focus both for Congress and the executive branch, with the Trump Administration finalizing and the Biden Administration now implementing new standards to incentivize better OPO performance. Since our webinar, the investigation continues to attract media attention for the OPOs under the most intense scrutiny, and members such as Representative Katie Porter (D-CA) have cited media reports to emphasize the need for continuing investigation in 2022.
We expect that many of the investigations described above will continue in some form even with a change in control of Congress this fall. As Republicans hope to win back the House of Representatives—and therefore subpoena power—in the midterm elections, they may begin laying the groundwork for investigative efforts with more information requests this year. Companies should be looking not only to existing areas of congressional focus, but also major news stories, media investigations, executive branch actions, and the parties’ broader political priorities to know where Congress may turn its investigative attention next.