Executive Summary
- What’s new: As the 2026 midterm elections approach, Democratic leaders are preparing to investigate companies’ past political activities; if Democrats gain control of one or both congressional chambers, they will have subpoena authority and can compel companies to respond to their inquiries.
- Why it matters: Congressional investigations may target companies with significant government contracts, companies that undertook substantial lobbying or political engagement to impact government policy or obtain deal approval, and those in highly regulated industries or receiving heightened government or media scrutiny.
- What to do next: Companies should review their government interactions and political activities for noteworthy engagements, get comfortable with the types of records they may have to submit if they receive a subpoena, and consider conducting a formal internal investigation if they conclude their activities are likely to be investigated.
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As the 2026 midterm elections approach, Democratic leaders are preparing to investigate companies’ past political activities. Notably, if Democrats gain control of one or both congressional chambers, they will have subpoena authority and can compel companies to respond to their inquiries. Below we outline the increasing likelihood of such investigations, as well as the steps companies can take now in preparation and to limit exposure.
Increased Appetite for Investigations
Democrats are openly warning companies to expect investigations if they win control of Congress in the midterm elections. Among others, Sen. Richard Blumenthal of Connecticut, ranking member of the Permanent Subcommittee on Investigations, stated that if he were chairman, companies “would have to answer” his questions and letters. House Minority Leader Hakeem Jeffries of New York similarly warned, “all of this is going to have to be investigated,” when discussing the planned White House Ballroom.
Democratic leaders have also mentioned certain subjects they may focus on. In addition to donors to the White House Ballroom, congressional investigations may target companies with significant government contracts and companies that undertook substantial lobbying or political engagement to impact government policy or obtain deal approval. Subpoenas could also focus on certain industries, such as those that are highly regulated or receive heightened government or media scrutiny, or even the use of certain consultants.
For example, Democrats on the House Oversight Committee recently opened an inquiry into former Department of Homeland Security (DHS) aide Corey Lewandowski and have reportedly sought information from companies about their contracts with DHS and communications with Lewandowski. Sens. Adam Schiff of California, Richard Blumenthal and Peter Welch of Vermont, all members of the Senate Judiciary Committee, have even requested that two companies “preserve records of their interactions” with Lewandowski in advance of “likely multiple probes.”
Democrats have been similarly probing in the deal approval context. Democratic attorneys general recently filed a lawsuit challenging a $6.2 billion merger between Nexstar Media Group and Tegna that was approved by the Federal Communications Commission, alleging violations of federal antitrust laws. A merger between Hewlett Packard Enterprise and Juniper Networks is likewise being challenged in court for alleged antitrust violations, despite obtaining Department of Justice approval.
Steps Companies Can Take to Prepare
To prepare for possible investigations, companies can review their government interactions and political activities for noteworthy engagements. Although linkage and quid pro quo arrangements are a hot-button issue for prosecutors when it comes to political contributions or other donations (e.g., to the White House Ballroom or entities for America’s 250th celebrations), other laws can apply depending on the nature of the political engagement. In addition to confirming that such engagements were technically permissible under applicable laws, companies should also get comfortable with the types of records they may have to submit to the government if they receive a subpoena. Indeed, even activities that were properly undertaken may be subject to lengthy and intrusive investigations that surface embarrassing and sensitive documents.
If a company discovers concerning activity, it has a range of options — from talking to the employees who might have been involved, to conducting a formal internal investigation. Deciding where on this spectrum one should land is difficult, involving many considerations. However, if a company concludes that its political engagement and/or activities are likely to be investigated, it may want to err on the side of conducting a more formal investigation. Among other benefits, a formal investigation can be useful in framing a company’s response in advance of a government inquiry and can also help inform a company’s negotiations with the government over the scope of a subpoena. Moreover, a company can attempt to use the findings (and remedial measures) from its own investigations to convince the government that further investigation is unnecessary.
Finally, ahead of the midterm elections, companies should be intentional in how they respond to current voluntary inquiries from congressional Democrats, who may soon have subpoena authority. When responding to inquiries today, a company should consider how its response will be received if congressional control shifts in 2026.
This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.