120th Congress – Investigative Authority and Potential Priorities

Summary

Although predicting electoral outcomes can be difficult, recent polling and historical trends suggest that Democrats could potentially take control of the U.S. House of Representatives and even possibly gain a narrow majority in the U.S. Senate following this year’s midterm elections.[1] If either of these occurs, we would expect the 120th Congress to have different oversight and investigative priorities than its predecessor. Historically, in times of divided government, Congress has typically relied on its investigative powers,[2] as “divided government ma[kes] it more difficult for Congress to pass legislation, spurring members to focus on investigations and oversight.”[3] Although much of this oversight would focus on the operations of the Executive Branch, we would expect that both privately held and publicly traded companies could be the subject of congressional inquiry.

In light of the public nature of congressional hearings, which bring unique risks and challenges for those under investigation, companies potentially facing such scrutiny should begin preparing well in advance of January 2027, including by evaluating any potential risks they may face, the scope of congressional subpoenas and other investigative tools, and Congress’s enforcement authority. This memorandum provides an overview of Congress’s subpoena authority and addresses potential investigative priorities for the 120th Congress should Democrats gain the majority.

This is the first in an ongoing series of client updates on congressional investigations.

Congressional Authority

Although “Congress has no enumerated constitutional power to conduct investigations or issue subpoenas,” courts have consistently held that “each House has power ‘to secure needed information’ in order to legislate.”[4] This broad power to investigate[5] has been deemed “an essential and appropriate auxiliary to the legislative function”[6] because “Congress cannot intelligently legislate without identifying national problems in need of legislative solution and relying on testimony and data that provide a deeper understanding of those problems, their origins, and potential solutions.”[7] Congress may pursue any investigation that “serve[s] a ‘valid legislative purpose.’”[8]

Most congressional investigations commence with committee requests for information or documents to be provided on a voluntary basis.[9] The scope of these requests, including the relevant time period and type of information to be submitted, is typically the subject of negotiation with congressional staff.[10] However, if those negotiations break down, or if a respondent is not authorized to produce documents unless legally compelled to do so, the committee chair may issue a subpoena.[11]

Currently, all standing committees are empowered to issue subpoenas, and most committee rules grant the committee chair largely unfettered authority to issue subpoenas.[12] Certain committees require the approval of the ranking minority member or, in the absence of such approval, a majority vote of the committee to issue subpoenas. Of note, congressional rules provide few procedural protections for the subjects of investigations. For example, unlike in grand jury proceedings, these rules do not allow for a neutral arbiter to oversee subpoena-related disputes. In addition, although a grand jury investigation involves strict secrecy rules, subjects of a congressional investigation should assume that any information provided could become public. Although congressional committees may provide assurances regarding the confidentiality of information submitted in the course of an investigation, there is generally no recourse if that information nonetheless finds its way into the public domain.[13] In addition, if testimony is requested (or compelled), that testimony can occur, at the discretion of the committee, in a closed or public setting, including in televised hearings.

Congress can compel compliance with subpoenas by referring the matter to “the U.S. Attorney for prosecution of a criminal contempt of Congress charge,” detaining and prosecuting noncompliant individuals or entities “pursuant to Congress’s inherent contempt authority,” or initiating “a civil action to enforce [a] subpoena in a federal district court.”[14] The Department of Justice rarely pursues criminal contempt charges,[15] although there are a few recent examples limited to high‑ranking Executive Branch officials.[16] Civil suits to enforce subpoenas are similarly rare and generally limited to high-ranking Executive Branch officials.[17] Congress has not used “the inherent contempt process . . . since 1935,”[18] although several Members of Congress have threatened to do so.[19] In addition to potential legal risks, subjects of congressional investigations must also manage the reputational and market risks that can arise from the public nature of these inquiries.

Potential Areas of Investigation

Recent letters from congressional Democrats to industry executives and government agencies[20] suggest several potential investigative priorities.

1. Prediction Markets. In March 2026, Senators Jeff Merkley (D-OR) and Elizabeth Warren (D-MA), and Representative Jamie Raskin (D-MD) introduced legislation that “would ban prediction market bets on elections, government actions, war and sports.”[21] On April 30, 2026, the Senate unanimously passed a rule prohibiting senators and their staff from trading on prediction markets.[22] Statements from congressional Democrats demonstrate an interest in pursuing further action concerning prediction markets.[23]
2. Digital Assets. House Democrats have been responding to “a wide-ranging transformation in the federal government’s treatment of the crypto industry during President Trump’s second term.”[24] Representatives Maxine Waters (D-CA), Brad Sherman (D-CA), and Sean Casten (D-IL) wrote to SEC Chairman Paul Atkins “express[ing] . . . deep concern regarding the [SEC’s] dramatic retrenchment from its responsibility to investigate and prosecute cases involving crypto asset securities.”[25] House Democrats have also raised national security concerns relating to cryptocurrency.[26]
3. Federal Contractors and Fund Recipients. Senators Elizabeth Warren (D-MA), Andy Kim (D-NJ), and Richard Blumenthal (D-CT) recently wrote to Secretary of Defense Pete Hegseth “request[ing] information” on “lucrative contracts and loans the Pentagon provided to companies linked to Donald Trump Jr.”[27] Democrats on the House Committee on Homeland Security convened on March 25, 2026 to investigate the bases for awarding certain Department of Homeland Security contracts.[28] Senator Elizabeth Warren (D-MA) asked the Government Accountability Office to investigate how the Department of Education’s staffing cuts will affect the agency’s ability “to root out fraud, waste, and abuse of Title IV financial aid funds” by educational institutions, particularly for-profit colleges.[29]
4. Pricing and Affordability. Congressional Democrats have repeatedly expressed concern about algorithmic pricing and consumer protection as part of a broader focus on affordability. For example, Representative Frank Pallone (D-NJ) has launched a formal “surveillance pricing” inquiry, sending letters to 25 major corporations regarding personal‑data‑driven price “manipulat[ion].”[30] Representative Robert Garcia (D‑CA) previewed that, if the Democrats retake the House, the Oversight Committee will “investigate larger corporations” that are “using data to manipulate pricing.”[31] Representatives Mark DeSaulnier (D‑CA) and Bobby Scott (D-VA) have called for the Department of Labor to “tak[e] additional action” to “lower [healthcare] costs for workers and their families.”[32] Congressional Democrats have also pressed companies for information regarding the pricing of prescription drugs.[33] Senators Elizabeth Warren (D‑MA), Richard Blumenthal (D-CT), and Chris Van Hollen (D-MD) recently wrote to several large technology companies “in light of alarming reports that tech companies are passing on the costs of building and operating their data centers to ordinary Americans as AI data centers’ energy usage has caused residential electricity bills to skyrocket in nearby communities.”[34] Senators Elizabeth Warren (D‑MA), Richard Blumenthal (D-CT), and Ron Wyden (D-OR) urged the Consumer Financial Protection Bureau to continue prohibiting banks from charging consumers for “access to their own data.”[35]

Industries Potentially Under Review

The scope of congressional Democrats’ likely investigative agenda suggests that companies operating in the following industry sectors, among others, could be the subject of congressional scrutiny:

• Banking
• Education
• Energy
• Fintech
• Housing
• Information Technology
• Media-Telecommunications
• Pharmaceuticals
• Private Credit
• Private Equity

Although congressional Democrats have sent letters to specific companies in the aforementioned industries seeking information and often instructing respondents to preserve documents, investigative priorities are dynamic and may shift as the country heads closer to the midterms.

S&C’s multi-disciplinary Congressional Investigations Group is closely monitoring this situation, and we remain available to discuss at your convenience.