Podcast: A Conversation with Christopher Armstrong About Congressional Oversight
In this episode of our Public Policy & Regulation Group's "Conversations with State Attorneys General" podcast series, host Stephen Cobb is joined by Congressional Investigations attorney Christopher Armstrong. Their conversation focuses on the interplay between congressional oversight and investigations by state attorneys general. Oftentimes, the work conducted by state attorneys general can serve as an indicator for what type of oversight may be on the horizon, and vice versa.
During this episode, Mr. Cobb and Mr. Armstrong cover three specific policy areas likely to be an upcoming oversight focus on the Hill, including energy, competition and immigration. Using his years of experience in both the House and Senate, Mr. Armstrong provides unique insight on the differing approaches to oversight in both chambers. He also offers advice and best practices for businesses and industry professionals who may be subject to oversight.
Podcast Transcript
Stephen Cobb: Welcome to another installment of Holland & Knight's Eyes on Washington Podcast, State Attorneys General Edition. My name is Stephen Cobb, I'm a former deputy attorney general of the Commonwealth of Virginia and now a partner at Holland & Knight and co-chair of the state attorneys general practice. With me today is my law partner and congressional investigations extraordinaire, Chris Armstrong. Chris is a veteran of Capitol Hill and he is the co-chair of our Chambers-rated Congressional Investigations Group. Chris, welcome to the podcast.
Chris Armstrong: I'm excited to be here. Thanks so much, Stephen.
Midterm Elections and the Future of Congress
Stephen Cobb: So one of the things, you know, anyone who has listened this podcast before will know is I talk about how really the state AGs are one of, if not the leading force in the regulatory environment. But one of the things that is increasingly interesting is the interplay between congressional oversight and state AGs. And it will often turn into a situation of kind of the chicken or the egg. Do state AGs take an interest in an issue because of congressional investigations or did a congressional oversight hearing start because of the work being done by state AGs? So as we look into our political crystal ball here, we're looking at what might happen this November in elections and how that might affect congressional oversight and how that will interplay with state AGs. What have state AGs done that can tell us about what will happen with congressional oversight and what might congressional oversight do that's unique that will raise these issues to state AGs? So, Chris, again, welcome to the podcast. With that kind of lead in, why don't you talk to me a little bit about what you're hearing, what you're seeing as it pertains to the elections this November and what that might look like if and when there is a new majority in the House or the Senate and what the leadership might look like on some of those committees.
So as we look into our political crystal ball here, we're looking at what might happen this November in elections and how that might affect congressional oversight and how that will interplay with state AGs.
Chris Armstrong: Of course. Well, that's an excellent question. Look, I think at this point, the expectation has to be that Republicans at least take the House. Odds are you have to assume they probably take the Senate as well. I think that in part will depend on August, I believe, primaries in Missouri and in Arizona, although I think that's more likely than not. And so you'll enter the 118th Congress with Chairman of House Oversight Comer, Chairman of House Judiciary Jim Jordan, Chairman of Judiciary in the Senate, my old boss, Grassley. That's only a handful, but those are going to be active oversight bodies, I would expect. You know, and look, it's Republicans on the Hill and you'll see Biden in the White House. It will be a Congress of oversight.
Congressional Oversight on Energy
Stephen Cobb: It took Republican AGs less than 60 days after Biden took office to start suing the administration. They sued over things like the Keystone pipeline, over immigration issues, over climate policies. And I think that to me, this is kind of giving a look into some national Republican priorities, be they from attorneys general to congressional oversight. For me, and tell me if I'm wrong, but I think there are three that one can look at and think that these are natural areas of increased oversight and increased attention by Republican AGs to be certain. And I think that is continuing focus on energy and ESG, particularly we've seen issues of gas availability, gas prices, this is something that is a growing concern. Competition, we've seen Republican AGs and Democratic AGs, for that matter, continue to launch investigations in areas of antitrust, but on very different ideals. And finally, on immigration. So let's take these one at a time. What do you think a Republican controlled House would look like in congressional oversight in areas of energy, as we think about gas prices, as we think about ESG?
Chris Armstrong: So I think, you know, ESG is exactly right. You know, I'll just kind of zoom out here, though. I've talked to a lot of oversight staff in the past year and the work to construct the oversight agenda next year has been happening a long time already. So these issues are all being built up in terms of oversight tactics, likely hearings, oversight requests on day one almost, I would expect on all the areas you raised and more, of course. On energy, I think ESG is the big focus. I think, I would add to that inquiries into who is actually backing anti-oil and gas efforts, who's investing in anti-oil and gas nonprofits I think is absolutely on the radar as well.
On energy, I think ESG is the big focus. I think, I would add to that inquiries into who is actually backing anti-oil and gas efforts, who's investing in anti-oil and gas nonprofits I think is absolutely on the radar as well.
Stephen Cobb: Let's break it down a little bit, because I think there's two things there. So Democratic AGs, in part, have already opened investigations into price gouging. They've sent inquiries to large oil and gas entities. Obviously, the administration has put increased emphasis on renewable energies. And it occurs to me that a Republican oversight committee would largely focus on anything they think that the administration has done that might contribute to a rise in gas prices, because I think they would see that as a kind of kitchen table issue.
Chris Armstrong: I think you're exactly right.
Stephen Cobb: Okay. So if that's right, how do you think they pull on that thread?
Chris Armstrong: I think Republicans would pull on this thread in terms of, you know, what actions have taken place to lower supply, right? And, who are the entities who are pushing those policies and who is actually backing those entities. And obviously, you know while Democratic AGs have the approach about, this is a part of potentially limiting supply and raising the price, the Republicans will have the approach: well, this is about the policies and actions that have been essentially anti-oil and gas.
While Democratic AGs have the approach about, this is a part of potentially limiting supply and raising the price, the Republicans will have the approach: well, this is about the policies and actions that have been essentially anti-oil and gas.
Stephen Cobb: So if you had to guess, what sort of non-governmental entities do you think will potentially face the ire of Republican committee chairs in this sort of oversight discussion?
Chris Armstrong: Environmental nonprofits, I think, are probably target number one in that. And Republicans have already talked about examining funding, you know, behind those entities. There's been accusations. There's overseas money behind those efforts as well. I think all of that will be explored by Congress in the next year. And this is one of those issues that I think when you ignore the politics, I think it's just a kind of you know, this is a kitchen table oversight, right? It'll happen regardless. But yeah, I expect this will be made, especially over at E&C.
Stephen Cobb: That's Energy and Commerce, for those who are not inside the Beltway.
Chris Armstrong: House Energy and Commerce. That's right.
Congressional Oversight on Competition
Stephen Cobb: I want to do a smash cut away now from energy and I want to talk about competition. So there's been a series of state attorneys general investigations already in the antitrust space. Looking at some very large companies. There has seemed to be some appetite on Capitol Hill, even bipartisan-wise, particularly in the Senate, Klobuchar and Grassley, dealing with antitrust policy. Is this something that you could envision a House Oversight Committee weighing in on in either a bipartisan way or if not bipartisan, and continuing to focus on the subject matter, but in a different way. And if so, how?
Chris Armstrong: Sure. Yeah. So I think competition will be a focus of house oversight. I think it'll be a focus of, you know, the Senate Judiciary Committee as well. You know, Congressman Jordan and Senator Grassley and the party have talked a lot about this in terms of big tech. So I think tech will be the principal competition focus of Republicans.
Congressman Jordan and Senator Grassley and the party have talked a lot about this in terms of big tech. So I think tech will be the principal competition focus of Republicans.
Differing Mentalities on Oversight in the House and Senate
Stephen Cobb: I'm curious about that. And this is kind of one of those areas where I think you would offer a unique perspective about the different, if at all, mentalities between the House and the Senate. Because I think what you've seen is a willingness to engage substantively in legislation on this area, in the Senate, and what you've seen is oversight and a very critical view in the House. So do you agree with that synopsis, one? And two, how do you think a dynamic of different leadership might change that discussion, if at all? For instance, I could envision, without knowing that one senator might be rather frustrated if they're trying to pass legislation in the Senate if it is a highly investigatory oversight in the same subject matter going on in the House, that makes moving that legislation along more challenging, or so I would imagine.
Chris Armstrong: No, sure. Of course. Well, look, you know, I first joined the Hill as an oversight staffer back in 2007. It's a long time ago. And at the time there was a perception that the House, tended toward more aggressive, more partisan oversight and the Senate engaged in more kind of substantive, somewhat less partisan oversight. And I'm a neither House nor, because I worked in both houses, so I have no allegiance there. I think that's gone. I think in terms of kind of, you know, oversight, I think those are the old days, I think especially when it comes to tech, and competition, and privacy, issues of censorship, I think the days of the House being, you know, kind of overly partisan and the Senate, you know, actually trying to work on oversight that is less partisan, I think we're probably at this point past that. I think it's an interesting issue. I think tech has an oversight because Republicans and Democrats, as an overall, you know, don't like big tech, although for separate reasons. And so it's hard to imagine oversight in this area ever being overly bipartisan.
Especially when it comes to tech, and competition, and privacy, issues of censorship, I think the days of the House being, you know, kind of overly partisan and the Senate, you know, actually trying to work on oversight that is less partisan, I think we're probably at this point past that.
Best Practices if your Business or Industry is Subject to Oversight
Stephen Cobb: I have one more area of policy that I want to get into. But I was thinking and I wanted to go back to something that you said earlier, which is that the oversight agenda for these would be committee chair people, something that is already being planned. It's something that's already being thought through. And so I think of this kind of in the context of state attorneys general. And one of the things that I will often tell folks is that when you know that state attorneys general are having an issue in your industry or in a general business practice, that it is important to be proactive and go in and begin to have conversations and open a dialogue around that which they have already made clear they have an issue. What is some general advice that you would give any company but companies particularly in these two areas that we've talked about, energy and competition, if you're looking around the corner and saying oversight agendas are already being formulated, you work in the areas and industries that are going to be front and center. This is what you need to get your ducks in a row, or this is the way to start being proactive, or this is the best practice. Because I think far too often folks want to sit in the cut and wait until there's an actual problem. So we have the benefit of not just your many, many years on the Hill, but your many, many years on the other side, representing companies going through these congressional investigations. Why don't you walk us through a little bit of those best practices. And what, if anything, should be done before there's an angry letter that's sent?
Chris Armstrong: Sure. Well, you know, I would add kind of a caveat; every issue is its own animal. And, you know, I mean, every oversight incident is totally different. I think there are two mistakes I see often and it's sort of like at the time period of expecting oversight, but it hasn't happened yet. I think the risk on one end of that spectrum is to obviously ignore and do nothing, like you said, right, to act like it's not happening or that's a hill issue and I'll have lobbyists and I'll address that when that happens. The other error on the other side of the spectrum, though, is to sort of raise your hand and say, hey, I would love to, you know, come in and explain this issue, because if the politics of the moment, especially in oversight, you know, are heading toward a request, any other action, if you raise your hand too early, you're easy go to. Right. It's not like, you know, if you walk in and you're big tech or you're, you know, another kind of entity that's a likely target, if you raise your hand and you walk in anything you say can be then used in oversight down the road. So I think there's a lot of, you know, risk and like overexposure or hiding it or ignoring it.
The other error on the other side of the spectrum, though, is to sort of raise your hand and say, hey, I would love to, you know, come in and explain this issue, because if the politics of the moment, especially in oversight, you know, are heading toward a request, any other action, if you raise your hand too early, you're easy go to.
Stephen Cobb: Absolutely. But what if they've already said your name?
Chris Armstrong: I still think there's a lot of risk in just walking in. Hey, I saw through a press release, I would like to talk about that issue because there's an assumption that, well, look, they're asking kind of questions. If I then answer, those, you know, this risk will, it'll go away. Oversight on the Hill has a part of it that you know is about that. It's about questions and answers. There's a part of it that is just kind of pure raw politics. There's a part of it that is about kind of PR on the Hill as well. So the assumption that if I don't answer questions, if I'm already mentioned and so why not? I still think there is a risk. Look, there's instances that, you know, that might actually help. But, you know, I think the majority of the time it would only escalate risk. And I would add as well that this is why it's important to, you know, to have a counsel who can kind of help with these issues, because oversight on the Hill is its own animal and it has a lot of risks. There's a lack of rules. And so if you try to, you know, handle oversight, how you handle white collar or other investigations it tends to have a lot of risk.
Oversight on the Hill has a part of it that you know is about that. It's about questions and answers. There's a part of it that is just kind of pure raw politics. There's a part of it that is about kind of PR on the Hill as well. So the assumption that if I don't answer questions, if I'm already mentioned and so why not? I still think there is a risk.
Stephen Cobb: That's an important point that I want to amplify when we talk about investigation be they U.S. Department of Justice, SEC, FTC, CFPB, state AGs, obviously, and the Hill, all investigations are not created equally, and they each have their own nuance that goes into them. And I think you hit on an important nuance that goes into congressional oversight, that which you described as pure politics. I'll go a little bit farther and say that it's political theater because so much more is placed on that which happens openly in the context of committee hearing than in many other regulatory investigations and proceedings. And I think with that comes those important caveats that you carved out for congressional investigations that may make it a little different or obviously makes it different than other areas. I want to turn this not just from a what outreach is appropriate, if not, but, what can be done internally, if anything, to get people prepared for this new level of oversight in particular areas?
Chris Armstrong: That's a good point. And I think the importance at each outset, have counsel who can help with this kind of odd, weird world of oversight of Congress. Start to have an idea of actual risk, right. You know, if and when oversight happens, if that's a hearing, if that's a request, you know, what are the likely issues at play? And are there past policies, public statements, is there bad media out there that's likely to attract the attention of the Hill and how am I going to respond? What's my messaging? Who are my allies out there on the hill or off the hill and have that kind of all laid out. And so, look, if an oversight request arrives, it arrives out of the blue. And so if you can have that work done on messaging your risks, if they ask for information, you know, what is our planned approach? If that's all kind of already done. It's helpful. Also helpful if it's done under privilege.
I'll go a little bit farther and say that it's political theater because so much more is placed on that which happens openly in the context of committee hearing than in many other regulatory investigations and proceedings. And I think with that comes those important caveats that you carved out for congressional investigations that may make it a little different or obviously makes it different than other areas.
Relationship Between Risk and Oversight
Stephen Cobb: Well Chris, I want to jump in if I may, because when we talk about risk, can we separate that risk, as you were highlighting before, as two types of risk, which is legal risk and which is kind of political and publicity risk. Because there are, in my mind, and you're the expert, so please correct me, but there is issues with both. One is, are you legally compliant? And the other is, what are you doing or not doing that someone is going to make political hay out of? And those might be the same thing, but they might very well be different things there.
Chris Armstrong: I would add a couple of points to that, you know, it's not common that a request is about if you're legally compliant or not. This is about are you taking actions that the hill believes that the chair doesn't like. You know, if I had to have a list of the actual risks, I think at the top of that has to be legal risk, and you know, where that pops up in these is at the outset, lying to Congress. That's the number one legal risk out there.
Stephen Cobb: Perjury is always going to be a risk. But, I mean, when I talk about risk, I'm more like talking about telling the truth and having it be about a business practice that they not only find objectionable, but they can find actionable. And then actionable doesn't necessarily mean that you're going to get a DOJ referral. This is when we talk about that chicken and the egg. This can be something that Republican AGs see as a violation of their own anti-competitive laws in their state.
Chris Armstrong: That's where I was headed next. I think you're exactly right, it's also you know, is there material here that an AG might use that a private actor might use in a lawsuit, all of that has to be examined. I think that's the legal risk. That's exactly right.
Congressional Oversight on Competition
Stephen Cobb: So the last policy area that I wanted to touch on was immigration, because I think that's something that has been a continued area of friction between parties and between AGs. We saw Republican AGs band together to challenge some of the Obama Administration policies and was successful in derailing many of them. They've already started in challenging 18 Republican AGs, challenging the Biden Administration's action on Title 42. Do you see this as an area as well as energy and competition, which you went over for increased oversight, should there be a GOP take over of the House?
Chris Armstrong: So immigration is always going to be a focus. And it's you know, I think it'll be a large one, I think, next year, everything from talking about influx of people to contracting around building the wall and exactly what happened in terms of that money and that material, too. I've heard a lot about that as a likely topic of oversight. I think it definitely will be though for sure.
Immigration is always going to be a focus. And it's you know, I think it'll be a large one, I think, next year, everything from talking about influx of people to contracting around building the wall and exactly what happened in terms of that money and that material, too. I've heard a lot about that as a likely topic of oversight.
Stephen Cobb: Right. I mean, putting my old executive branch hat on, something like that is most likely to go from an inspector general's investigation to a report to a congressional hearing inviting the inspector general representatives to the department and probably in this case, contractors in for that discussion.
Chris Armstrong: Absolutely right. It's a tailor made hearing. You know, I'd be surprised if that's not in month one of the next Congress, obviously IG would take more time. But yeah, I think it's at the forefront.
Final Thoughts
Stephen Cobb: So Chris, we've talk about energy, we've talked about competition, we've talked about immigration, we've talked about some of the best practices necessary both to prepare for what might be around the corner and when not to engage any other kind of final thoughts on what we may or may not expect in congressional hearings and what folks in the private sector should keep an eye out for and how they should prepare.
Chris Armstrong: Sure. Well, it's a long list here, right? In terms of kind of oversight topics, I would expect it's a very long list, right? I mean, Chinese investment in the U.S., I think is absolutely way up there. I think I would add to that list your typical oversight, but I think the kind that will affect a lot of entities across industry is, you know, CARES Act, the programs under infrastructure, any entities that had funding under those laws — and that's a lot of companies — has an oversight risk here. I think, you know, we've talked about tech, we've talked about, you know, ESG, we've talked about nonprofits. Obviously any issues that directly touch on the president all likely. And so I think the number one issue I would raise is, you know, anyone who has the expectation that oversight by Republicans will only focus on the Biden Administration, is wrong. I think the oversight tactics and the topics we'll see will be unlike any oversight we saw in the past decades.
I think the number one issue I would raise is, you know, anyone who has the expectation that oversight by Republicans will only focus on the Biden Administration, is wrong. I think the oversight tactics and the topics we'll see will be unlike any oversight we saw in the past decades.
Stephen Cobb: Chris, thank you so much for joining. This has been Holland & Knight's, Eyes on Washington Podcast, State Attorneys General Edition. We were able to discuss in greater detail kind of the interplay between state AGs and congressional oversight, what might happen after the November elections and how the two might interplay. I think we've learned a lot as to the preparation and ways in which it may or may not differ between preparing for congressional investigation and a state AG investigation. But I think as we look around the corner, there's going to be continued oversight and investigations by state AGs, and I think we can be prepared for that in the areas of energy, competition, immigration and probably many, many more. Thanks so much for tuning in and we look forward to being with you again soon. Thanks so much.