The Midterm Elections Are Coming — Prepare Now for Congressional Investigations

If Democrats regain control of either chamber of Congress in the 2026 midterm elections, we anticipate a substantial increase in congressional investigations beginning in early 2027. Congressional committees wield powerful investigative tools that can expose institutions and individuals to legal, reputational, political, and market risk.

Based on recent public statements by Democratic leaders and letters from Democratic ranking members who are likely to become committee chairs, we expect that a future Democratic majority will likely focus its oversight substantially on private-sector actors — particularly companies that:

• Have engaged substantially with the Trump administration
• Have received significant government contracts or regulatory benefits during this administration
• Have participated in controversial administration-backed initiatives
• Operate in industries central to affordability debates, such as health care, housing, and utilities
• Relate to consumer protection or concern emerging technologies, such as AI or crypto platforms

Although Democratic committees may inundate the executive branch with demands, the Trump administration will almost certainly resist complying. As a result, committees will be motivated to seek information directly from private entities as a way to more quickly get the information that they seek.

Oversight as the Primary Tool for Congressional Committees in Divided Government

In a divided government, major legislation is unlikely to pass. As a result, oversight investigations become congressional committees’ principal vehicle for fact finding, driving headlines, supporting or discrediting policy, and advancing political narratives. In the next Congress, committees will be eager to use oversight tools to frame narratives heading into the 2028 presidential cycle.

A Democratic House majority would almost certainly prioritize investigations tied to alleged Trump administration cronyism/corruption, cost-of-living and affordability issues, health care, consumer protection, and emerging technologies. Democratic ranking members have already started laying the foundation for such investigations with public and non-public letter requests.¹

Even corporate entities that are not themselves the focus of congressional inquiries may be drawn into these investigations, including as document sources or fact witnesses. Multiple committees may assert overlapping jurisdiction, leading to parallel demands.

Congressional Authority: What Companies Should Understand

Scope of Committee Investigative Authority

Congress’ investigative authority is as broad as its jurisdiction under the Constitution to make laws. Courts have consistently recognized that Congress may compel testimony and documents from private parties so long as the inquiry is tied to a valid legislative purpose.

Key features relevant to companies:

• Committees can issue subpoenas for documents or testimony, including via hearing or deposition. (Only committees have subpoena authority — individual members and ranking members acting independently of the committee chair do not.)
• Most House committee rules authorize the chair to issue subpoenas unilaterally.
• Subpoenas can be burdensome, including demanding documents on sensitive and wide-ranging subjects over a lengthy time period.
• Investigations need not allege wrongdoing to compel production.

Unlike executive branch investigations, congressional investigations are not governed by firm rules like the Federal Rules of Civil Procedure. Committees set their own rules, which vary and are often more flexible than those to which litigators are accustomed. And of course, there is no neutral arbiter in Congress to adjudicate when committee requests are improper, overly burdensome, or require the production of potentially privileged material.

Enforcement Mechanisms

Counsel for corporate recipients of congressional demands typically negotiate scope and timing. However, if a company refuses to comply, Congress has some enforcement tools:

Criminal Contempt of Congress

Congress may vote to hold a witness in contempt and refer the matter to the U.S. Attorney for the District of Columbia for prosecution.² The specter of criminal liability is a powerful incentive to cooperate with congressional investigations. It is worth noting, however, that a contempt vote requires political will and floor time. As a result, Congress has infrequently pursued contempt, and only a handful of individuals have been held in contempt in recent years. Furthermore, the U.S. Department of Justice (DOJ) may exercise discretion in prosecution and has declined to prosecute at various times, particularly related to executive branch disputes. And, of course, in the current political climate, the Trump administration’s DOJ may be less likely to prosecute based on a referral from a Democratic committee chair.

Civil Enforcement

The House or Senate may authorize a civil lawsuit seeking a court order to enforce a subpoena. Although such litigation has been uncommon, the Democrats initiated litigation on several occasions to enforce subpoenas after they regained the House majority in the 2018 midterm elections. If they similarly prevail in 2026, a Democratic House majority may again be willing to pursue litigation to further their oversight agenda.

Political Tools

Congress can also hold hearings, issue public reports, and use media attention to highlight a company’s refusal to cooperate in an effort to raise the political and reputational costs of noncompliance.

Practical Steps To Consider Now

Congressional investigations pose legal risks that differ meaningfully from those in civil litigation or regulatory enforcement. For example, documents produced to Congress can be disclosed, subpoena enforcement is political as well as legal, and reputational exposure often precedes formal findings. Given these risks, companies that anticipate the potential for congressional interest should begin preparing now.

• Identify a core response team, including outside counsel experienced in congressional investigations, internal subject matter experts, and communications professionals. 
• Identify sensitive subject areas that may be topics of congressional interest. Consider preliminary, privileged reviews of the existing record on those topics to assess risk and to inform legal and communications strategy. 
• Evaluate Hill relationships (particularly with current ranking members and other representatives with local ties to existing corporate operations or personnel) and consider strategic outreach. 
• Incorporate the prospect of congressional investigations into the company’s public relations and marketing strategies. 
• Refresh relevant personnel on best practices in internal and external communications, including with respect to public statements, contact with reporters, application of the attorney-client privilege, and written or oral discussions with government personnel. 
• Talk to your congressional investigations counsel about the potential risks and appropriate planning steps given your company’s profile.

Conclusion

A Democratic House majority will significantly expand investigative activity affecting the private sector. Do not wait for a public letter alleging wrongdoing and demanding testimony or documents. Companies that actively prepare will be better positioned to manage the legal and reputational dimensions of congressional scrutiny.

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.