E&C Republicans Vote to Give Chair Subpoena Power

The House Energy & Commerce Committee has voted generally along party lines—with one exception—to grant chairman Fred Upton (R-Mich.) subpoena power without having to get the approval of the minority or, failing that, a vote of the entire committee.

That means the chair can compel testimony and witnesses in its oversight of various agencies, including the FCC. The committee plans to focus some attention this session on FCC process, including how it makes regulatory decisions, and efforts to restore network neutrality rules, according to the committee majority's oversight plan.

The committee held its first meeting in the new Congress, an organizational meeting to vote on the rules, which was billed in advance as pretty much a pro forma exercise. That subpoena power change—adopted 28 to 23—highlighted a contentious start that belied the evocations at the beginning of the meeting of the general bipartisan nature of the committee. The vote was purely along party lines except for chairman emeritus Joe Barton (R-Texas), who voted against the move, and after some harsh words from Democrats.

Rep. Bobby Rush (D-Ill.) called it a cheap power grab, and ranking member Frank Pallone (D-N.J.) called it a terrible precedent for potential abuse of power, saying it was a "huge mistake" that moved the committee in the wrong direction.

Rep. Anna Eshoo (D-Calif.) said Upton had a record of thoughtful policy decisions and suggested this did not fit that mold. She said it was not like him to "come out of the box this way," with a rule change that "casts aside" the bipartisan partnership Upton has talked about.

She said undermining that "advise and consent" role was not good government.

Upton pointed out that six other committees in the last Congress had given their chairman the power, that he would use it only as a last resort, and that it would enhance the committee's investigative capabilities. He said it would allow the committee to act quickly to "leverage" cooperation. He said there would be no change in the bipartisan nature of investigations and the committee would attempt to get voluntary cooperation wherever possible and consult with minority "where practicable."

The committee rules in the last Congress required the chairman to consult with the ranking member, and if they could not agree, to call for a vote of the committee before issuing a subpoena.

The new rules would not require that, but it would require that the chairman notify the minority and, "where practicable," 72 hours before issuing the subpoena. Ranking member Frank Pallone (D-N.J.) said that "where practicable" was a loophole he wanted closed, but the language stayed in the rules as voted.

The Democrats said the change made them feel marginalized, and while they did not expect Upton to abuse the privilege, they were worried about the precedent it set. They also asked what problem needed fixing, given that there were no examples in the last Congress of subpoenas the chairman wanted that did not get issued, and that if the chair and the ranking member could not agree, the majority had enough votes to approve a subpoena.

They also said that it was no argument for the rules that other committees did it, and they would rather have other committees emulating the comity of E&C.

They all said they did not think Upton would misuse his power, but that giving the chair, any chair, the unchecked authority to issue subpoenas was a bad precedent and an un-bipartisan way to kick off the new committee.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.