Mounting congressional oversight means extra companies and orgs have extra to elucidate

Terry Gerton Your agency has tried to forecast the expectations for congressional oversight hearings and investigations for 2026. Let’s begin our dialog right this moment with the elements that may be making your crystal ball a little bit cloudy. What’s uniquely completely different concerning the 2026 surroundings?

Amanda Robinson In a mid-term yr, election yr, primarily, congressional investigations typically change into one of many major methods lawmakers affect the coverage dialog. And that’s distinctive to 2026 versus 2025, for instance. So passing main laws is troublesome below one of the best of circumstances, however it turns into particularly difficult when the Home and Senate are carefully divided, so there are slim majorities. And the legislative calendar is shortened by campaigning and district work durations. So in consequence, oversight exercise, hearings, investigations, letters and committee reviews typically change into essentially the most seen and versatile instrument Congress has to advance priorities.

Terry Gerton Are you seeing them transfer in that course to this point?

Amanda Robinson Completely. Though it’s notable, proper, that in 2026, I’d say the most important difficulty is continuity. Many investigations presently underway will not be brand-new initiatives. As a substitute, they construct on multi-year investigatory information that committees have already developed. That is notably true in areas reminiscent of well being care, pricing, expertise platforms, nationwide safety points involving, for instance, China and office practices. As a result of committees have already gathered paperwork and held hearings on these matters, it’s comparatively straightforward for them to proceed oversight with out ranging from scratch. However once more, right here, on this midterm election yr, we’re seeing members spotlight points that actually resonate with voters to use strain to regulators or non-public actors and form coverage debate.

Terry Gerton Are you sensing that the hearings which are being held now and the investigations which are below means are actually about fact-finding, or typically there’s a way that these are simply actually about headline technology?

Amanda Robinson Each, truthfully, and it is dependent upon the subject. However the political surroundings actually shapes how investigations unfold. In an election yr, oversight is commonly designed not solely to assemble info, as you’ve mentioned, but in addition actually what I’d name to create public accountability. Right here, high-profile hearings, particularly these involving company executives or authorities officers, can generate important media consideration and assist body coverage debates heading into the election season.

Terry Gerton So for companies that get pulled into oversight hearings, adjoining corporations, actually universities and different nonprofits are getting pulled in — what’s the sensible danger profile that you just’re seeing for these organizations proper now because of congressional oversight?

Amanda Robinson When folks take into consideration congressional investigations, they typically image subpoenas or dramatic hearings on Capitol Hill. However in actuality, most investigations start a lot earlier and way more quietly. Sometimes, step one is a committee letter requesting paperwork, knowledge and explanations of particular company or institutional practices. Now, these letters can request a variety of supplies: inner emails, coverage paperwork, compliance supplies, or knowledge associated to pricing or enterprise practices. Now whereas these requests are technically voluntary, organizations typically deal with them severely as a result of they sign that the committee is constructing an investigatory file. In order that’s actually the form of preliminary focus or preliminary actions that Congress will take. In fact, after receiving paperwork, committees continuously conduct employees briefings or transcribed interviews. Now these periods enable committee employees to ask detailed questions and make clear points earlier than deciding whether or not a public listening to is critical. And in lots of investigations, nearly all of fact-finding happens at this stage. Public hearings are usually used way more strategically.

Terry Gerton Your report additionally notes that many of those investigations are falling below a framework or an umbrella of nationwide safety. How is that umbrella permitting congressional investigators to herald all types of various focus areas?

Amanda Robinson Nationwide safety framing is a large pattern that we’re seeing in congressional investigations. Now, historically, nationwide safety oversight targeted on protection contractors, intelligence companies, and navy packages. Immediately, nonetheless, congressional committees more and more apply a nationwide safety lens to a much wider vary of industries. That may be provide chains, expertise infrastructure, semiconductor manufacturing, knowledge governance and educational partnerships. They’re all being investigated and examined by the lens of a strategic competitors, notably with China. Now this shift displays a rising bipartisan consensus in Washington that financial and technological capabilities are central to geopolitical competitors. Consequently, corporations that function in sectors reminiscent of superior expertise, biotech, telecom, or essential minerals might discover themselves drawn into congressional investigations, even when they’ve by no means beforehand interacted with nationwide safety regulators.

Terry Gerton I’m talking with Amanda Robinson. She’s a companion at Morgan Lewis. Amanda, you discuss nationwide safety being a quite common throughline. It looks like one of many different quite common throughlines is synthetic intelligence. You’ll be able to’t have a listening to on the Hill on any matter that doesn’t someway embody AI. What line of questioning there ought to organizations be prepared for?

Amanda Robinson AI, that’s the subject du jour. So one difficulty that has obtained specific consideration within the AI context is algorithmic pricing, using software program programs to research market knowledge and advocate or routinely alter costs. Now, litigation involving a property administration software program firm, for instance, has drawn important consideration in Washington. Plaintiffs have alleged that the software program’s pricing suggestions might facilitate what they name coordination amongst landlords, elevating antitrust issues. These allegations have prompted hearings and broader discussions about whether or not algorithms that depend on shared market knowledge might allow anti-competitive conduct. Congress has additionally thought of laws addressing this difficulty. One instance is the Stopping Algorithmic Collusion Act, which has been launched however has not superior to enactment. Now, past competitors issues, lawmakers are more and more occupied with inner AI governance. Committees continuously ask corporations questions reminiscent of, who approves the deployment of AI programs? What safeguards exist to detect bias or unintended penalties? What oversight mechanisms exist inside the firm?

Terry Gerton Amanda, your evaluation flags that DEI points proceed to be a magnet for congressional oversight. Once they request inner coaching supplies or communications, what are they actually in search of and the way ought to organizations put together?

Amanda Robinson DEI stays probably the most politically contested areas of congressional oversight. Republican-led committees within the Home have performed investigations into DEI packages at universities, nonprofit organizations and entities that obtain, for instance, federal funding. These inquiries typically concentrate on hiring practices, inner coaching packages, communications about range initiatives and metrics used to trace range objectives. Investigators continuously request these inner paperwork, those who you cited, together with these coaching supplies, for instance. And what they’re actually inspecting, for instance, is whether or not federal funding helps packages that they argue might battle with civil rights legal guidelines. On the identical time, congressional oversight on this space is going on alongside broader developments within the courts and government department. The Supreme Court docket’s 2023 resolution in College students for Honest Admissions versus Harvard held that race-based affirmative motion in college admissions violated the Equal Safety Clause. Though the case addressed greater training admissions particularly, it has prompted broader debates about how comparable authorized reasoning may apply to company and employment packages. Consequently, congressional oversight operates as a part of a broader coverage suggestions loop. Congressional investigations can spotlight points that regulators or non-public litigants later pursue and developments in litigation can, in flip, immediate additional congressional scrutiny.

Terry Gerton So let’s flip again to the place we began — 2026 is an uncommon yr. It’s a midterm election yr. Numerous of us making an attempt to make a reputation for themselves as they put together for his or her election campaigns. For those who’re an company, employees member or an organization that will get referred to as by a committee, what’s your greatest mode of preparation?

Amanda Robinson For organizations that will work together with Congress, the important thing takeaway is that congressional investigations needs to be seen not solely as a authorized difficulty, but in addition as a strategic and reputational danger administration problem. Organizations ought to assess the place their operations intersect with present oversight priorities. Areas drawing, as we talked about, specific consideration in Congress embody AI governance, DEI insurance policies, office practices, well being care pricing, provide chains and naturally, nationwide safety. Organizations ought to be sure that inner documentation aligns with their public statements. Congressional investigations continuously request in these inner communications, compliance supplies, and coaching paperwork. After which when these supplies contradict public messaging, it might shortly change into a focus of an investigation. Corporations ought to acknowledge that congressional oversight not often happens in isolation. Investigations by Congress typically overlap with regulatory enforcement actions and personal litigation. For instance, congressional inquiry into pricing practices might happen on the identical time that regulators are investigating comparable points or non-public litigants are submitting lawsuits. Now due to this overlap, organizations typically profit from a coordinated response technique that features authorized counsel, compliance professionals, a authorities affairs crew and communication specialist.