Elections and consequences: Senate Dems finally get subpoena power -- and plan to use it

New Republican control of the House promises a lot of investigatory efforts into Joe Biden and his administration. Among the GOP, the question debated is just how many investigations to start, and how to balance that with a positive agenda to allow a springboard for the 2024 election.

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However, House Republicans aren’t the only caucus that got the power of the subpoena in this election. Senate Democrats controlled the upper chamber in the 117th Congress, but only because of the tie-breaking vote cast by VP Kamala Harris. Thanks to a series of fumbles culminating in the Georgia runoff election, Chuck Schumer now has 51 seats — and that means his caucus can start sending out subpoenas as well.

Politico reports that they may just take the handoff from House Democrats:

Though their target list is still under discussion, Democrats in the upper chamber have made clear that they intend to use their investigative authority — newly acquired thanks to their functional 51st Senate seat — as a counterpoint to House GOP probes of Hunter Biden’s business dealings and the Biden administration’s withdrawal from Afghanistan.

They’re also mulling picking up the baton from House Democrats on two fights: scrutinizing the oil industry’s culpability for climate change and obtaining former President Donald Trump’s tax returns, according to senators.

The House has been the epicenter of investigations in the current Congress given the deadlocked Senate, but that spotlight will be shared starting next year. Democrats’ loss of the House has created an investigative “vacuum” that party senators intend to fill, said Sen. Richard Blumenthal (D-Conn.), an investigative-minded former prosecutor and senior Judiciary Committee member.

“There are very definitely investigations that I think now will be possible,” Blumenthal said, referring to Democrats’ inability to issue subpoenas in the current 50-50 Senate because Republicans could block them at the evenly divided committee level.

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If they come after Trump’s tax returns, Senate Democrats will almost certainly find themselves disappointed. The only reason one House Democrat finally got access to those is because federal law allows for the chair of the House Ways and Means Committee to see any tax return he or she requests. That authority is limited only to that office — not even the rest of the committee can see tax returns, as they are private otherwise. (It is supposed to be limited to legitimate legislative interests too, a restriction which the courts turned out to be reluctant to enforce when Richard Neal sued to gain access to the tax returns of his party’s political nemesis.) The reason that gets limited to the House is because the House has to generate any and all tax legislation. In other words, there is no authority for the Senate to access anyone’s tax returns without the consent of the taxpayer, and Neal is required to keep the returns he has accessed from anyone else — at least officially.

Otherwise, though, Senate Democrats can pretty much pick up where their House colleagues will leave off in January. Schumer could, for instance, create a follow-on select committee on January 6, although it would likely require more balance in membership than Pelosi’s unprecedented partisan exercise. Senate Republicans have more parliamentary ways to grind the upper chamber to a halt than House Republicans did in this session. They can open investigations into all sorts of issues, including some that would likely be designed to embarrass not just Trump but anyone else running for the Republican nomination in 2024 — especially in reprisal for the expected probe of Hunter Biden in the House next year.

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There is one limiting factor to this, however. How long can Schumer keep his 51 votes? As Politico also notes, that majority has already become more “fragile” than expected, and it will only get worse as 2024 approaches:

But that doesn’t mean Senate Democrats are going to immediately start firing off subpoenas. Its 51-49 majority has given the party more power, but that authority remains fragile — a fact underscored by Arizona Sen. Kyrsten Sinema’s decision to become an independent. Sinema is expected to keep her committee assignments, importantly, with Democrats and Schumer seeking to tamp down the ramifications for their majority by vowing that Democrats would still be able to “exercise our subpoena power.”

However, they’ll have to carefully navigate aggressive investigations for another reason: a difficult 2024 Senate map. Several of their seats in red and purple territory are up next term, where partisan probes may not pay political dividends.

That may have some incumbents pushing back hard on the idea of turning the Senate into a partisan snipe-fest. Those endangered red-state incumbents can’t count on the GOP screwing up golden opportunities two cycles in a row. (Well, they probably can’t, anyway.) Those Senate Democrats will have to tread lightly on politicized hit jobs on Republicans. Plus, Joe Manchin still might join Sinema in I-Land and turn the Senate into a 49/49/2 balance where the two of them effectively control what happens in the upper chamber.

Nevertheless, Schumer will face tremendous pressure to make use of subpoena power after two years of handcuffs. The more House Republicans push subpoenas in the lower chamber, the greater that pressure will become. And none of this would have been an issue for the GOP if they had won easy lay-ups in New Hampshire, Nevada, and Georgia in 2022 — and two of them in Georgia in 2020, for that matter. Elections have consequences, and some of those will unfold swiftly in January in both directions.

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As Wilford Brimley observed in Absence of Malice, “Wonderful thing, subpoenas.” Wonderful for those issuing them, anyway. The line itself does not appear in this clip, but watch the whole film to get the context of it. It’s still one of the finest films about the difference between reporting and narrative journalism, and how the media manipulates (and gets manipulated) rather than report the truth.

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