As the 119th Congress gets underway, businesses and individuals must prepare for a potentially rigorous landscape of congressional investigations. With a Republican majority controlling both chambers of Congress and the executive branch, congressional investigations are likely to complement the goals of the Trump Administration with a focus on oversight of various aspects of the private sector and retrospective oversight of the Biden Administration and its various legislative initiatives. We are also likely to see continued scrutiny and heightened interest in key issues from 2024, such as environmental, social, and governance (ESG) programs, higher education, diversity equity, and inclusion (DEI) initiatives, speech regulation on social media platforms, reproductive rights, artificial intelligence (AI), and companies' and individuals' ties to China.
Which Committees Will Be the Most Active?
Last Congress, several House committees were very active, including the House Education and Workforce Committee, the House Select Committee on the Chinese Communist Party, the House Committee on Oversight and Government Reform, and the House Judiciary Committee. These committees' oversight efforts are likely to continue. While the Senate will likely have a slow start to investigations as it focuses on confirming President Trump's nominees, we anticipate increased oversight from several Senate committees, including the Senate Commerce, Science, and Transportation Committee (led by Sen. Ted Cruz), the Judiciary Committee (led by Sen. Chuck Grassley), and the Health, Education, Labor, and Pensions Committee (led by Sen. Bill Cassidy). The Senate's investigative priorities are likely to mirror those of the House and the executive branch.
- House Education and Workforce
Committee. The House Education and Workforce
Committee was particularly active in 2024, conducting high-profile
investigations and hearings on antisemitism on college campuses,
foreign research funding, and DEI initiatives at universities. We
can expect continued activity from the House Education and
Workforce Committee this year, albeit under new leadership. Rep.
Tim Walberg (R-MI) has replaced Rep. Virginia Foxx (R-NC) as chair
of this Committee, but many of his investigative focal points,
including antisemitism and DEI initiatives on college campuses,
remain the same. Rep. Walberg has stated his higher education
priorities for this Congress include "enshrining protections
for parents to continuing to protect Jewish students on college
campuses to rights providing more opportunities and flexibility to
American workers."
Under Rep. Walberg's leadership, the House Education and Workforce Committee is expected to assist the Trump Administration in carrying out its anti-DEI agenda. The committee is likely to fulfill the mandate in the Trump Administration's executive orders on DEI and the new US Attorney General's memo titled "Ending Illegal DEI and DEIA Discrimination and Preferences." This may involve launching investigations in parallel with the Department of Justice and the Department of Education into DEI programs in place at institutions of higher education (IHEs) and companies providing services to IHEs and public school districts receiving federal funding. On January 22nd, Rep. Walberg issued a statement in support of the Trump Administration's executive orders on DEI, "commend[ing] the Trump Administration for dismantling DEI."
- House Select Committee on the Chinese Communist
Party. The House Select Committee on the Chinese
Communist Party, led by Chairman John Moolenaar (R-MI), was also
active during the last session, focusing on research funding, data
security, the supply chain, and forced labor. The House Select
Committee is poised to continue its emphasis on the supply chain
and the private sector's ties to China. Notably, the House
Rules for the 119th Congress broaden the Select Committee's
investigative jurisdiction. In the previous Congress, the Select
Committee's charge was "to investigate and submit policy
recommendations on the status of the Chinese Communist Party's
economic, technological, and security progress and its competition
with the United States." Its jurisdiction now consists of
"policy recommendations on countering the economic,
technological, security, and ideological threats of the Chinese
Communist Party to the United States and allies and partners of the
United States."
- House Committee on Oversight and Government
Reform. Congressman James Comer (R-KY) continues as
the chair of the House Committee on Oversight and Government
Reform. The Oversight Committee was active in 2024 and will
continue its oversight efforts this Congress. The Oversight
Committee will also have a new subcommittee, the Subcommittee on
Delivering on Government Efficiency (the "DOGE
Subcommittee"), which will be led by Marjorie Taylor Greene
(R-GA). The DOGE Subcommittee is expected to work closely with
President Trump's Department of Government Efficiency (DOGE) to
carry out its investigative priorities. DOGE has already been
active this year – dismantling the US Agency for
International Development and the Consumer Financial Protection
Bureau, terminating thousands of federal government employees, and
gaining access to sensitive Treasury Department data –
ostensibly in an effort to root out fraud and abuse in the US
Government. DOGE's findings will almost certainly be the topic
of investigations and hearings before the DOGE Subcommittee and
will likely pull private contractors viewed as contributing to the
purported fraud and abuse found by DOGE into its investigative
scope.
- House Judiciary Committee. Congressman Jim Jordan continues as the chair of the House Judiciary Committee. Last Congress, under Chair Jordan's leadership, the House Judiciary Committee investigated ESG practices related to climate, sending letters in August 2024 to sixty companies involved in a climate investor initiative. The Committee is likely to continue that investigation this year. The Committee is also likely to scrutinize past actions of the Biden Administration and already held a hearing this year examining the Biden Administration's alleged weaponization of the Department of Justice against American citizens and political opponents.
Private Sector Issues in the Crosshairs
With a Republican-led government, investigations will likely be heavily focused on the private sector, especially in areas that are a frequent target of Republican criticism. These areas include climate change, higher education, DEI, healthcare spending, and relations with China.
- Climate. ESG was a key lightning rod
issue for House Republicans in the 118th Congress. The House
Financial Services Committee led these efforts, creating a House
Republican ESG Working Group that ultimately issued a staff report
entitled "The Failure of ESG: An Examination of Environmental,
Social, and Governance Factors in the American Boardroom and Needed
Reforms." The report, resulting from a multi-year
investigative effort by Chair Bill Huizenga (R-MI), included
recommendations on proxy voting, shareholder activism, materiality
of climate-related financial risk, and the fiduciary duty of
investment advisors. The report's recommendations likely
foreshadow the policy directions of the 119th Congress with respect
to ESG.
"Climate cartels," a term coined to refer to groups that allegedly collaborate to pressure companies to reduce carbon emissions, have also been a topic of interest. In December, the House Judiciary Committee published a staff report titled "Sustainability Shakedown: How a Climate Cartel of Money Managers Colluded to Take Over the Board of America's Largest Energy Company." The report discussed alleged initiatives to replace the ExxonMobil Corporation's board members after they rejected a series of proposed climate pledges. Chair Jim Jordan (R-OH) and Rep. Thomas Massie (R-KY) also sent letters to US-based asset managers, raising concern about their involvement with the "Net Zero Asset Managers" initiative, which Republican lawmakers allege is a "woke ESG cartel." Investigations into renewable energy investments are also likely to be on the table in 2025. The Inflation Reduction Act (IRA) and Infrastructure Investment and Jobs Act, hallmarks of the Biden Administration, drove nearly $369 billion in direct investment in green energy and technology projects. Working with DOGE, the DOGE Subcommittee is likely to launch investigations into the private sector entities that received those funds and the use of the funds to illuminate any alleged waste, fraud, or abuse. Programs that are politically unpopular with Republicans, such as incentives for the electric vehicle industry, are also likely to come under scrutiny. Already this year, EPA Administrator Lee Zeldin has attempted to claw back federal investments in clean energy deployment granted toward the end of the Biden Administration. Senator Sheldon Whitehouse (D-RI), Ranking Member of the Committee on Environment and Public Works, led Democratic members of the Committee in demanding answers about the illegal clawback, but we should also expect the leadership of this Committee to open investigations into the allegations of fraud in connection with these last-minute federal outlays.
- Higher Education. Higher education
was another hot-button issue for congressional investigations in
2024, with an increased focus on institutional responses to
antisemitism, foreign influence and funding, and DEI initiatives.
Following campus protests in the wake of the October 7, 2023 terror
attacks in Israel, Congress launched a House-wide investigation
into antisemitism on college campuses. This investigation resulted
in a detailed 325-page staff report published by the House
Education and Workforce Committee. House Republicans on the House
Select Committee on the Chinese Communist Party and the House
Education and Workforce Committee also investigated how US federal
research funding has contributed to China's technological
advancements and military modernization.
Attention on antisemitism on college campuses and foreign research funding is unlikely to dissipate, but we can also expect expanded interest in DEI initiatives on college campuses. Last year, House Republicans held a hearing titled "Divisive, Excessive, Ineffective: The Real Impact of DEI on College Campuses," during which Chairman Burgess Owens (R-UT) condemned DEI, stating "[i]nstead of becoming a more perfect union, [DEI] turns our schools, communities, and cities into cesspools of divisiveness and hate." Future hearings and investigative inquiries are likely to be guided by the findings released by the Department of Justice (DOJ) and other agencies, including the Department of Education, as directed in Executive Order 14173, which directs DOJ and federal agencies to "identify up to nine potential civil compliance investigations [related to DEI programs or principles] of . . . institutions of higher education with endowments over 1 billion dollars." - DEI. In addition to investigations
into DEI initiatives on college campuses, we can expect to see
heightened scrutiny of the DEI messaging and initiatives undertaken
by publicly traded companies and government contractors. The Trump
Administration has already made DEI one of its focal points, noting
specific enforcement focus on publicly-traded companies and
government contractors. Congress is likely to follow suit, working
closely with the Trump Administration and launching parallel
investigations to those occurring in the agencies as directed by
Executive Orders 14151 and 14173, which seek to terminate all
DEI-related requirements for government contractors and directs
agencies to investigate publicly traded corporations for
"illegal discrimination" related to DEI.
Other committees, such as the House Education and Workforce Committee and the Senate Commerce, Science, and Transportation Committee, are likely to launch DEI investigations as well. During the 118th Congress, Sen. Cruz, now chair of the Senate Commerce Committee, investigated National Science Foundation grants for research projects allegedly pursuing DEI agendas.
- Healthcare. There will likely be
continued oversight activities related to reproductive rights,
including investigations into Planned Parenthood. At the end of
2024, more than 100 Republican lawmakers sent a letter to the
Government Accountability Office asking for an investigation into
federal funding awarded to health centers that perform abortions,
including Federally Qualified Health Centers, Planned Parenthood
Federation of America, International Planned Parenthood Federation,
MSI Reproductive Choices, and four domestic abortion providers. The
top three leaders of the 119th Congress all signed on — House
Speaker Mike Johnson (R-LA), House Majority Leader Steve Scalise
(R-LA), and Senate Majority Leader John Thune (R-SD).
Senator Bill Cassidy (R-LA) is taking over the Senate Health, Education, Labor, and Pensions Committee and is likely to focus on prescription drug costs, price transparency, and data security in the healthcare industry. In the 118th Congress, Sen. Cassidy sought information related to a data breach at Change Healthcare and began an investigation into the government's 340B Drug Pricing Program. In February of this year, President Trump issued an Executive Order, "Making America Healthy Again By Empowering Patients with Clear, Accurate, and Actionable Healthcare Pricing Information." The Executive Order (EO) aims to improve transparency in healthcare pricing. In line with Trump's EO on price transparency, we can expect the Senate HELP Committee to launch investigations into insurers' and hospitals' pricing practices and compliance with the price transparency rules.
- China. In 2024, the House Select
Committee on the Chinese Communist Party was actively engaged in
investigations into colleges and universities, technology, banking,
retail, finance, and healthcare. During the 118th Congress,
lawmakers focused on addressing export control loopholes and
regulating Chinese access to US technology. In November, Rep.
Moolenaar, Chair of the House Select Committee, sent letters to
five semiconductor equipment manufacturers, alleging that those
manufacturers benefitted from the CHIPS and Science Act while
simultaneously selling semiconductor manufacturing equipment to
China. This investigation is ongoing. Rep. Moolenaar also raised
concerns to the Department of Commerce about Chinese access to US
semiconductor technology and requested the International Trade
Commission enforce an import ban on the Chinese company BOE
Technology Group. We expect this Committee's scrutiny in this
area to continue this term. We also expect the Committee to
continue to allege violations of the Foreign Agents Registration
Act for those corporate entities with alleged ties to the Chinese
Communist Party (CCP) or the Chinese military.
In addition to the aforementioned topics, tariffs and counter-tariffs from China will also be a topic of interest. Investigations into the sale of illicit fentanyl in the United States are also likely to occur. In April of last year, the House Select Committee published a bipartisan report following a months-long investigation into the CCP's role in the fentanyl epidemic in the United States. These investigative efforts could extend to companies in the supply chain for ingredients used in the manufacture of fentanyl, some of which are also used in the manufacture of legitimate products. These priorities are likely to continue in the 119th Congress, with investigations into Chinese investments in US companies, Chinese funding of universities, data privacy and cybersecurity concerns, supply chains, technology exports, and forced labor. Some of these investigations are likely to receive bipartisan support, particularly the investigation into the fentanyl epidemic.
- Big Tech. Technology was another area
of significant focus for the 118th Congress, and this emphasis is
expected to continue in the 119th Congress. In the 118th Congress,
lawmakers scrutinized how major technology firms manage content
moderation and address allegations of bias and censorship.
Congressional Republicans are likely to continue targeting internet
and social media companies for allegedly discriminating against
conservative media outlets. In April 2024, the Senate Commerce
Committee, under then-Ranking Member Ted Cruz, released an
investigative report about how online service providers are
supposedly weaponizing their terms of service against conservative
organizations. As the now-Chair of the Senate Commerce Committee,
Ted Cruz is likely to continue to investigate these issues. The
committee may also expand its purview to examine the role of AI in
content moderation.
Additionally, the ethical and societal implications of AI will likely continue to be a focus of the 119th Congress, including concerns over data privacy, national security, and algorithmic bias. In December 2024, the Bipartisan Task Force on Artificial Intelligence released its report on artificial intelligence, focusing on several areas, including healthcare, intellectual property, financial services, government use, and education. The report puts forth several recommendations and policy insights that are likely to guide the 119th Congress's investigative efforts.
Expected Procedural Developments
While there is likely to be some continuity in investigatory practices, particularly in the House, there are also important changes on the horizon.
- Unilateral Subpoena Power. House and
Senate rules provide committees and subcommittees authority to
subpoena witnesses and documents. In the House, most
committees' rules delegate authority to issue subpoenas to the
committee chair and require the chair only to consult or notify the
committee's ranking member. In the Senate, however, most
committees' rules require the chair to receive the consent of
the ranking minority member or a vote of the committee to authorize
a subpoena.
At the end of January, the Senate Homeland Security and Government Affairs Committee (HSGAC) voted to permit its chair, Sen. Rand Paul (R-KY), to issue unilateral subpoenas under penalty of contempt without requiring the consent of the ranking member or any other committee members. The Senate Commerce Committee, led by Sen. Cruz, may adopt a similar rule. The Senate Commerce Committee has extremely broad jurisdiction, meaning the rules change, if approved, would represent a major expansion of Sen. Cruz's investigatory power.
- Criminal Contempt. Congress has the
power to vote to hold a party in contempt if it finds that the
party has failed to comply with a subpoena. In the 119th Congress,
we anticipate an increase in the use of coercive power, such as
criminal contempt, given the current DOJ's likely receptivity
to assisting the Republican Congress's investigative
efforts.
In September of last year, the Senate unanimously voted 20-0 to hold Ralphe de la Torre, former CEO of Steward Health Care, in criminal contempt after he defied a subpoena to testify. De la Torre then sued the Senate Committee on Health, Education, Labor and Pensions and the twenty senators on the committee, seeking to invalidate the committee's subpoena. De la Torre's complaint seeks a declaration that the subpoena serves no valid legislative purpose and that it violated his Fifth Amendment rights. Congress's unanimous vote to hold De la Torre in contempt was the first time the Senate has invoked this measure since 1971, indicating a growing appetite by Congress to use its contempt power more aggressively. With Republicans controlling both the legislative and executive branches, they are strategically positioned to wield criminal contempt as a particularly coercive tool. Criminal contempt involves formally referring the contempt charges to the US Department of Justice for criminal prosecution, and it is most effective when the same party controls both congress and the executive branch.
- Other Potential Changes. There may
also be significant changes in this Congress regarding how
investigative depositions and hearings are conducted. Senate rules,
for example, do not provide committees with authority to compel
deposition testimony. Rather, the Senate may grant the power to
certain committees through a Senate resolution. In the 118th
Congress, a Senate Resolution granted the Judiciary Committee,
HSGAC, and the Permanent Subcommittee on Investigations the ability
to subpoena witnesses for depositions. We may see a shake-up in
Congress regarding which committees have the authority to subpoena
witnesses for depositions in both chambers.
There has also been discussion about allowing staffers to question witnesses in hearings after senators have concluded their questioning. While this practice has been done before in certain high-profile settings, it is a rare occurrence and would be a significant departure from prior precedent.
Steptoe's Capabilities
Businesses, trade associations, and individuals have turned to Steptoe's congressional oversight and investigations team for decades. Steptoe has one of the premier Washington practices in this field, drawing on our depth of experience with high-profile matters, our substantive knowledge, our political acumen, and our understanding of congressional process. We are a go-to firm for everything from responding to an initial investigatory letter to preparing and defending our clients in nationally televised hearings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
