Dems can use subpoena power to reclaim the mantle of populism

Dems can use subpoena power to reclaim the mantle of populism
© Greg Nash

Senators are not known for lacking an adequate appreciation of their own importance. Yet, in the face of billionaires with swagger, senators often back down without a fight. 

Last month provided a useful bipartisan example of a lack of spine. Key members of the Senate Intelligence Committee expressed resentment at Google for not sending a member of its “senior leadership” to an open hearing called “Foreign Influence Operations’ Use of Social Media Platforms.”


Committee Chairman Sen. Richard BurrRichard Mauze BurrSasse rebuked by Nebraska Republican Party over impeachment vote Senators given no timeline on removal of National Guard, Capitol fence Passage of the John Lewis Voting Rights Advancement Act is the first step to heal our democracy MORE (R-N.C.) said he was “disappointed” that Google had chosen not to appear. Ranking member Sen. Mark WarnerMark Robert WarnerSunday shows - Trump's reemergence, COVID-19 vaccines and variants dominate Warner: White House should 'keep open additional sanctions' against Saudi crown prince Sunday shows preview: 2024 hopefuls gather at CPAC; House passes coronavirus relief; vaccine effort continues MORE (D-Va.) said he had “wanted to question Google on a number of issues, including conspiracy theories appearing in Google search, hacking attempts on Gmail and the spread of Russian disinformation on YouTube."

Sen. Marco RubioMarco Antonio RubioCPAC, all-in for Trump, is not what it used to be Watch live: Day 2 at CPAC DeSantis derides 'failed Republican establishment' at CPAC MORE (R-Fla.), a man known to enjoy the spotlight, which would have increased had Google CEO Sundar Pichai shown up, said Google was either “arrogant” or just unwilling to face tough questioning."

It’s true that the senators did not merely express disappointment. The powerful Senate Intelligence Committee "followed through on threats to place an empty chair labeled 'Google' where an executive would have sat, in a symbolic rebuke of the company.”

There you have it. The committee that provides oversight on the CIA’s most aggressive arsenal of tools to coerce compliance, faced with a recalcitrant executive, deployed ... an “empty chair” gimmick.

One can oppose enhanced interrogation techniques by the CIA and still think that the Senate Intelligence Committee’s response to corporate disrespect was meek and lame.

This sort of whining is a choice — a bad choice — and all too common. Last fall, Google’s leaders were joined by top Facebook and Twitter executives in stiff-arming congressional interest, sending none of their CEOs to highly anticipated hearings on the role tech played in the disastrous 2016 election.

Rather than taking seriously the lawyer underlings sent in the place of CEOs, as Congress did in 2017, or juvenile pranks like last month, senators could have chosen differently. They could have used their power to compel any handful of Google senior executives they desired to testify by exercising the committee’s subpoena power.

Indeed, Congress’ subpoena power is vast, as the Supreme Court has noted, “The issuance of a subpoena pursuant to an authorized investigation is similarly an indispensable ingredient of lawmaking.”

Most House and Senate committees have rules enabling subpoenas by the chair or majority vote. And those subpoenas are valid so long as they relate to any subject “on which legislation could be had.” 

As a white paper from Mayer & Brown summarized, “As a practical matter, this means that courts generally will not interfere with a congressional subpoena absent a truly opprobrious violation of an individual’s constitutional rights.”

What does this mean, beyond the fact that Senate committees should overcome their fear of subpoenaing Silicon Valley elites?

It means that a potential Democratic Party majority in the House can provide a lot more oversight than just accessing Trump’s taxes.

Wonder whether Robert Mercer’s hedge fund, Renaissance Technologies, is getting a sweetheart deal from Trump’s IRS? Demand the records from the IRS, as Trump’s tax returns are not the only billionaire’s tax returns subject to congressional request. 

Wonder about payday lenders’ treatment of consumers while the Consumer Financial Protection Bureau has been sidelined? Issue subpoenas. Curious how much “Big Pharma” spends on marketing versus research and skeptical of the current public facing numbers? Issue subpoenas.

Want to know all the gross details of private equity’s evisceration of Toys 'R' Us and Sears and so many other formerly thriving employers? Issue subpoenas. Wonder what effect Blackstone is having on the housing markets or if foreclosure fraud is still ongoing? Issue subpoenas. 

If House Democrats want to genuinely reclaim the mantle of populism, scrutinizing the least meritorious rich and most lawbreaking corporations is a great start.

Indeed, new members might even wish to consult the Congressional Oversight Manual, which includes a great quote from the man who was perhaps “the first scholar to use the term ‘oversight’ to refer to the review and investigation of the executive branch,” future president Woodrow Wilson. 

“Quite as important as legislation is vigilant oversight of administration. It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents.” 

Even if House Democrats take the majority, they are unlikely to pass groundbreaking legislation under President TrumpDonald TrumpSacha Baron Cohen calls out 'danger of lies, hate and conspiracies' in Golden Globes speech Sorkin uses Abbie Hoffman quote to condemn Capitol violence: Democracy is 'something you do' Ex-Trump aide Pierson planning run for Congress MORE. However, they do have the ability to vindicate voters’ populist desire by uncovering corruption of all kinds across not only the breadth of the Trump administration but the economy as a whole.

Jeff Hauser is the executive director of the Revolving Door Project at the Center for Economic Policy and Research. The Revolving Door Project strives to increase scrutiny on executive branch appointments and ensure that political appointees are focused on serving the public interest.