Coalition Letter to U.S. Senate HELP Committee on “Blank Check Investigations” of U.S. Business

By SBE Council at 3 March, 2023, 4:40 pm

Dear Members of the Senate Health, Education, Labor, & Pensions Committee:

On March 1, 2023, Senate Health, Education, Labor, & Pensions (HELP) Committee
Chair Bernie Sanders announced his intention to seek an all-encompassing “Authorization for
Investigation into Violations of Federal Labor Law by Major Corporations” at an upcoming
Executive Session of the Committee on March 8, 2023. On behalf of the undersigned
organizations, we write to express our opposition to the granting of such untethered authority.
Presumably, Chairman Sanders seeks this authority under Committee Rule 17(a).

While Committee rules require authorization to launch some investigatory activities,
there is no precedent for this type of comprehensive and boundless authority which could enable
unconstructive and undisciplined investigations. In fact, the Committee, which has existed in one
form or another since 1869, has to our knowledge never approved a subpoena to compel witness
testimony. Past Committee chairs rarely used the authority that Chairman Sanders now requests,
and none ever sought a blank check to investigate such a vast area as “violations of federal labor
law.” A review of available Committee records, in fact, reveals only two instances in which the
HELP Committee voted to issue subpoenas, once in 2006 and once in 1983.

It appears that in both cases, the authorization was narrowly tailored and, more
importantly, had bipartisan support, which is fitting as the Senate HELP Committee has a long
and storied history of bipartisan cooperation. Indeed, in the decades that Senators Kennedy,
Gregg, Harkin, Alexander, Jeffords, and Murray chaired the Committee, not once was such
authority granted or even sought.

Chairman Sanders, on the other hand, appears to seek a grant of blanket authority without
parameters, constraints, or boundaries. The Executive Session notice provides no explanation for
seeking such broad permission for Committee staff to interfere with existing investigations or
enforcement proceedings being conducted by the multiple federal agencies that enforce our
country’s labor laws. There is little justification to permit the Chairman to mandate American
employers and executives answer for allegations that have yet to be fully adjudicated. In fact, in
this regard, the Chairman’s request is at odds with the Constitution’s separation of powers.

If the Chairman were to seek investigatory authority on a particular matter after any legal
proceedings are complete to understand how to improve current law, that might help inform the
Committee on legislative undertakings. That is not the circumstance before us here, however.
Instead, the current effort appears to be an extension of the Chairman’s ongoing campaign
against companies involved in labor disputes. Moreover, it threatens to interfere with ongoing
legal proceedings in a manner that will likely undercut the due process rights of employers and
employees.

As drafted, the authority sought also could permit the Chair to meddle in the affairs of
any employer anywhere in the country at any time. The abuse of process by a Committee to
target individuals for their beliefs and/or for their assertion of their constitutional due process
rights has historically been frowned upon.2 The Committee has shown prior restraint in granting
such blanket authority for investigations into prior financial improprieties or failures to file
appropriate disclosures with the Department of Labor, even though it arguably has greater
reasons for seeking such authority.3,4

At a time when our country faces real challenges, including an ongoing workforce
shortage, the recovery from the impacts of the pandemic on our education system, the ongoing
rise in health care costs, and a dearth of retirement security, the HELP Committee and its staff
could be focused on solutions to assist everyday Americans. Rather, the Chair seeks HELP
Committee members’ permission to focus on pursuing needless, unconstructive, undisciplined
investigations of American employers.

In his recent State of the Union address, President Biden sounded a note of optimism that
bipartisan cooperation could still occur in a divided nation and even more divided Congress. He
stated, “to my Republican friends, if we could work together in the last Congress, there’s no
reason we can’t work together and find consensus on important things in this Congress as well.”
It is hard to imagine that the kind of bipartisan comity the President seeks will be fostered in the
HELP Committee this Congress if the Committee grants the authorization sought by Chairman
Sanders on Wednesday.

We respectfully request that you vote against the broad investigatory authority sought by
the Chair and, by so doing, restore the Committee to its history of bipartisan cooperation in
facing America’s toughest challenges.

Sincerely,

American Bakers Association
American Hotel & Lodging Association
American Trucking Associations
Associated Builders & Contractors
Associated Equipment Distributors
Associated General Contractors of America
Consumer Technology Association
Foodservice Equipment Distributors Association
Heating, Air-conditioning, & Refrigeration Distributors International
HR Policy Association
Independent Bakers Association
Independent Electrical Contractors
International Franchise Association
Metals Service Center Institute
National Association of Manufacturers
National Association of Wholesaler-Distributors
National Council of Chain Restaurants
National Federation of Independent Business
National Marine Distributors Association, Inc.
National Ready Mixed Concrete Association
National Restaurant Association
National Retail Federation
National Roofing Contractors Association
Outdoor Power Equipment and Engine Service Association, Inc.
Petroleum Equipment Institute
Small Business & Entrepreneurship Council
Textile Care Allied Trades Association
U.S. Chamber of Commerce

1 See, e.g., “Bernie Sanders wants democrats to make unions their biggest message,” Senator Bernie Sanders Official
Website, April 28, 2022. (“There’s nothing that I would say to [Jeff Bezos] except, ‘You know what? We’re gonna
take you on,’” Sanders said in a phone interview last week. “You could either start responding to the needs of your
workers, or we’re gonna fight you ruthlessly.”) Available at https://www.sanders.senate.gov/in-the-news/bernie-sanders-wants-democrats-to-make-unions-their-biggest-message/.

2 Critics of the House Unamerican Activities Committee “contend that its abuse of power trampled important First
Amendment rights, such as freedom of expression and freedom of association.” House Un-American Activities
Committee | The First Amendment Encyclopedia (mtsu.edu)

3 Scheiber, Noam, and Boudette, Neal E., “Behind a U.A.W. Crisis: Lavish Meals and Luxury Villas,” New York
Times, December 26, 2019. Available at https://www.nytimes.com/2019/12/26/business/uaw-gary-jonesinvestigation.html.

4 Letter from Representatives Virginia Foxx and Rick Allen to Government Accountability Office, November 15,
2022. Available at https://edworkforce.house.gov/uploadedfiles/11.15.22_-_letter_to_gao_re_olms_request.pdf