- Companies in the Crosshairs?
- January 24, 2017 | Author: Jonathan E. Meyer
- Law Firm: Sheppard, Mullin, Richter & Hampton LLP - Washington Office
- The morning after has come and gone, the shock is abating, and American companies are taking stock of what the election means for them. While many are focusing on policies anticipated to come from President-elect Donald Trump's administration, the business community should be asking a pressing question of its own: What do results of races for U.S. Congress seats mean for oversight of corporate America?
The short answer is that while oversight as a whole might decline, private-sector scrutiny could increase. If that seems counterintuitive, keep reading. Key committees within the Republican Congress are highly unlikely to conduct aggressive oversight of the Executive Branch -- even with the Trump administration shaping up to be less predictable than most in modern history.
There's recent precedent: The Democratic Congress proved relatively tame on government oversight in President Barack Obama’s first two years. That means committees such as Chairman Jason Chaffetz’s (R-Utah) House Oversight and Government Reform Committee (HOGR), Chairman Rob Portman’s (R-Ohio) Permanent Subcommittee on Investigations (PSI) and others naturally will turn to the business world as a target for their considerable oversight resources.
Related: 7 Things Business Owners Need to Know Post-Election
Which industries and issues will the committee chairs of the 115th Congress focus on? Much will depend on the news of the day, but we can draw some conclusions from current facts and political trends.
Trump vowed in the past to do away with major provisions of President Obama's health care law, as have Republican leadership. Trump's more recent statements indicate a repeal actually could look more like a modification of the statute. Either action easily should pass the House of Representatives but could face a filibuster from Democrats in the Senate. To make the case, Congress could hold hearings to interrogate companies failing to keep costs down or to provide care. These might be drug companies, direct care providers or insurers. If a repeal or modification passes and health costs continue to rise, more vigorous oversight of the industry could be in the cards.
In addition, Trump has vowed to do away with the prohibition on insurance companies selling products across state lines. Hearings relating to such an effort could ensnare many a carrier in the grip of senators who don’t want insurance companies leaving their states. Chairman Orrin Hatch’s (R-Utah) Senate Finance Committee or Chairman Lamar Alexander’s (R-Tenn.) Health, Education, Labor and Pensions (HELP) Committee could focus here.
Tax Avoidance and Reform.
Concern about the movement of corporations offshore in order to reduce their tax burdens has gained bipartisan traction. A surge in nationalism or a belief that foreign countries have taken advantage of the United States could feed passion on this issue. Companies that have availed themselves of this maneuver could face scrutiny in a Republican Congress, perhaps at the hands of HOGR, PSI or the Senate Finance Committee. Moreover, as Congress gears up for corporate tax reform that some have promised, congressional scrutiny will turn to companies deemed not to be paying their fair share.
The economy is improving, and more mergers are on the horizon. The Antitrust Subcommittee of Senate Judiciary won't give these deals an easy pass, even under Republican control. Trump’s skepticism of some corporate combinations is likely to encourage the same among Antitrust members. Trump has criticized the recently announced AT&T-Time Warner merger, which already has a Dec. 7 hearing on the books.
Trump also has made allegations of collusion in areas such as drug pricing. These public comments are likely to draw attention from Antitrust Chairman Mike Lee (R-Utah) and Ranking Member Amy Klobuchar (D-Minn.).
Cyber issues are among the hottest public policy topics, on a bipartisan basis. Expect congressional oversight to reflect the level of public interest in information security.
A number of Democratic members of Congress recently called on the Federal Trade Commission (FTC) to do more to protect consumers from cyber attacks. It's a present concern for Republican lawmakers as well, since millions of their constituents increasingly fear identity theft or worry about data privacy.
The next major congressional investigation is just one breach away -- or could even precede it. The House Energy and Commerce Committee might focus here. So might Chairman Chuck Grassley (R-IA) in Judiciary, Chairman Ron Johnson (R-WI) of the Homeland Security and Governmental Affairs Committee (HSGAC) or Chairman John Thune (R-SD) in the Commerce, Science and Transportation Committee.
Millions of American lives are affected each time flaws are revealed in high-tech products' operation, safety or security. We can expect an oversight committee to investigate and hold bipartisan hearings that target manufacturers. Look for Chairman Jerry Moran’s (R-Kan.) Consumer Protection Subcommittee to take the lead on this issue.
Republicans will seek to remove financial incentives that have given green technology a leg up in recent years. In the process, watch for both houses to shine their oversight klieg lights on this sector -- just as they did early in the Obama administration. Chairman Chaffetz in HOGR and Chairman Thune in Senate Commerce are likely candidates.
Not all companies will face renewed scrutiny. Some probably can breathe a sigh of relief. These include oil and gas within the energy sector and the massive banking sector. All likely would have faced a much more aggressive oversight agenda in a Democratic Senate led by outspoken lawmakers such as Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.).
The private sector won't be Congress' sole focus. We can be sure that lawmakers will investigate the Executive Branch if clear examples of corruption or mismanagement appear. With the same party in control of Congress and the White House, many sets of eyes could be trained beyond the beltway and on corporate America. Companies would be wise to prepare.