Preparing for Congressional Oversight: Risks, Politics, and Strategy in a Potentially Divided Congress

On a recent episode of the Womble Perspectives podcast, host and WBD Partner Lee Van Voorhis was joined by WBD Partner Kristina Moore to discuss what company leaders should know about Congressional investigations and oversight. This article is based on that conversation.

The stakes are high in the 2026 midterm elections. The future of Congressional investigations is one key impact from voters’ decisions this fall.

Currently, the Republican-controlled Congress has investigated a range of issues, including immigration and border security, Biden Administration controversies, and diversity, equity and inclusion (DEI) practices in employment. But if Democrats regain control of either the House or Senate, a different set of priorities will be on the table for Congressional investigation.

“The next Congress is going to be very active in exercising its oversight authority,” Moore said, noting that a split Congress remains a strong possibility. Under that scenario, she explained, companies could face “multiple fronts of investigations,” with the House pursuing one set of priorities and the Senate another.

Congressional Investigations: What Company Leaders Need to Know

Congressional investigations differ significantly from traditional regulatory or enforcement actions, creating unique risks for companies. Congressional inquiries are not bound by the same legal restraints as other government investigations.

“They don’t necessarily recognize common law privileges,” Moore said, adding that committee chairs effectively act as both investigator and adjudicator when disputes arise. 

“That means your lawyer can say, ‘I object,’ and the chairman says, ‘Overruled,’” Moore said.

Also, Congressional investigations are inherently political, compounding the risk to companies under scrutiny. No actual wrongdoing is required—a party may be called to testify simply because they have information certain members of Congress want.

Moore said that there are differences between how the two branches of Congress conduct investigations. The House tends to be more aggressive in deploying subpoenas, while the Senate applies more subtle pressure, leaning on its prestige to enforce its demands. Still, both chambers retain significant subpoena authority—and in a divided Congress, coordination across party lines could further expand investigative reach.

Current Investigations—and What Could Be Ahead

Republicans recently have used their narrow majority to pursue inquiries tied to the Biden administration activities and climate-related policies, Moore noted. However, congressional investigations are fluid because they serve a political purpose, not just a legal one.

For example, a change in control of either chamber could bring new and potentially retrospective scrutiny. 

Moore described reports of internal tracking efforts among Democratic staff to companies that could face future inquiries. Companies that are perceived as being too cooperative with or supportive of the Trump Administration could find themselves under investigation.

“Victories in 2025 and 2026 could turn into liabilities in 2027 if the House or the Senate flip,” she said.

Companies also should be aware that elected officials closely monitor news coverage, and Congressional investigative priorities can change with the news. “If there is a major topic leading the news, that also becomes a topic of congressional inquiry,” Moore said.

At the same time, the pace of investigations may accelerate in the next Congress. Moore noted that while inquiries traditionally unfold over months of negotiations before escalating, “it’s absolutely possible that things could escalate from a letter … to a subpoena … in a matter of weeks.”

Good corporate policies can be a strong proactive defense. Legal departments should craft sensible document retention policies and guidelines for how employees should communicate with government actors over email.

“Casual conversations and sloppy emails make for easy reporting,” Moore said.

The Role of the Minority Party in Congressional Investigations

Even in a Congress deeply divided along party and ideological lines, the minority party can be an extremely valuable ally for companies under investigation. However, this asset is often overlooked or underutilized.

Members of the minority party can be a source of intelligence for companies under scrutiny, providing information that isn’t always readily available.

Also, a sympathetic member of a minority party can serve as an internal advocate pushing back on the majority's plans. 

“Believe it or not, chairmen still care about what their ranking member thinks, and so having the ranking member on your side could be invaluable,” Moore said.

To Fight or Comply—and When?

“One of the biggest decisions a company under investigation has to make is when to fight and when to comply, or whether to fight and whether to comply,” Van Voorhis said.

Those decisions boil down to two key considerations, according to Moore:

1. A comprehensive assessment of all relevant risks. These include legal, business, and reputational risks. What will happen if a company tries to fight and fails?
2. An honest look at the temperament of the chairman and committee staff.  Is this a pressing issue for them, or a backburner one? Their zeal to proceed will also inform a company’s decision-making.

Generally, companies under investigation have opportunities to negotiate and comply in a way that doesn't impact the business too heavily. 

Staying Prepared for a Congressional Inquiry

For businesses, the implications are clear: preparation must extend beyond legal compliance to include political awareness and communications strategy. Companies should invest early in bipartisan relationships and monitor both regulatory developments and media coverage. 

“There’s a strong connection between what is popping in the news and what is happening on Capitol Hill,” Moore said.

Companies also need to carefully assess risks tied to new technologies. Records generated through the use of AI tools such as chatbots are a potential vulnerability that could become subject to subpoena. Moore cautioned that without legal oversight, “there is no privilege,” making such records more easily accessible to investigators.

Ultimately, Moore said congressional investigations are “neither a pure legal matter nor a pure political exercise, but at the same time it is both.” Effective corporate responses require coordination across legal, government affairs, and communications teams, particularly in high-profile matters. The uncertainty surrounding the midterms underscores the importance of readiness, Van Voorhis said.

Even absent an active investigation, Moore recommended that companies strengthen internal processes, maintain disciplined communications practices, and cultivate relationships on Capitol Hill. Those steps, she suggested, can help businesses navigate an oversight landscape that is set to become more complex—and more consequential—in the years ahead.