Mapping Minority Investigative Powers in Congress – Harvard Journal on Legislation

David Rapallo[*]

Abstract

“Shut down the Senate . . .” “Roll over and play dead . . .” In the first hundred days of President Donald Trump’s second term, these were the rallying cries of two far ends of a debate among Democrats about how to respond to the administration’s unprecedented actions. This debate, which rages on today, has been marked by a lack of specificity about the various oversight tools available to members of the minority party in Congress, particularly when they investigate whether the Executive Branch is faithfully executing the laws Congress passes. Scholarship too has focused little on the full panoply of powers minority parties can use to conduct investigations, especially during periods of unified party government. This Article aims to fill these gaps by mapping the minority’s investigative powers in Congress.

This review demonstrates that the current all-or-nothing debate misses significant opportunities for minorities to conduct oversight through a continuum of powers that can be deployed selectively and strategically rather than as a binary choice between complete obstruction and total passivity. These minority oversight powers include rights provided in House and Senate rules and federal laws, as well as parliamentary procedures the minority can employ to gain leverage for its investigative aims. They also include investigative actions the minority can take that do not rely on these rules, including obtaining information from alternative sources and disseminating that information through minority reports and events. To better inform the current debate, this survey provides a host of precedents and illustrations drawn from actions taken in the past by congressional minorities of both political parties.

Based on this review, the Article concludes by offering several innovative proposals for minorities to consider, including moving beyond the current either-or debate in favor of a more strategic approach, organizing staff and resources to work more proactively across committees and both houses of Congress, increasing district and state-level engagement, and intentionally pursuing opportunities for bipartisanship. Unlike the two previous alternatives, which could allow congressional majorities to sacrifice their Article I prerogatives by either shutting down the Legislative Branch or abandoning its role as a check on the Executive Branch, these proposals could help minorities empower Congress as an institution to more effectively fulfill its constitutional role in our separation of powers framework.

I. Introduction

In the first hundred days of President Donald Trump’s second term, Democrats erupted into an existential debate about how to respond to the incoming administration’s actions.¹ Reeling from the November elections in which Trump defeated Vice President Kamala Harris, Democrats were also contending with the reality of a unified Republican party government, with majorities in both houses of Congress and a supermajority of Supreme Court justices appointed by Republican presidents.² As the electoral autopsies began, Democrats struggled to cope with how far they had fallen.³

This debate took on greater urgency when an emboldened Trump rolled back into Washington with a plan for unprecedented upheaval at warp speed.⁴ Taking maximum advantage of his governing trifecta, President Trump and his administration openly flouted laws Congress previously passed on a bipartisan basis,⁵ decimated long-standing administrative agencies,⁶ began firing and pushing out hundreds of thousands of federal employees,⁷ and froze funds Congress had appropriated for critical federal programs.⁸ During this Executive Branch blitzkrieg, Republican members of Congress were criticized for failing to investigate or challenge the administration’s apparent violations of the law and dismantling of long-established norms, such as prosecutorial independence at the Justice Department.⁹ Many majority members seemed uninterested in safeguarding Congress’s constitutional prerogatives and instead embraced the administration’s actions, even as these actions appeared to undermine congressional authority.¹⁰

With this backdrop, a deep fissure developed among Democrats and their supporters. Some warned that the country was facing a constitutional crisis like no other, arguing that Democrats should act as aggressively as possible to halt or delay the damage they believed the administration was causing to programs, services, and governing institutions.¹¹ Some called on Democrats to gum up the inner workings of the Legislative Branch and, for example, “shut down the Senate.”¹² Those on the other end of the spectrum urged Democrats to do exactly the opposite. They argued that the minority should not intervene at all for fear that it might backfire politically and instead should allow voters to experience the full damage of the administration’s actions, with the hope of retaking the House, Senate, or both in the next election. The most prominent of these voices was James Carville, who wrote in the New York Times just weeks after President Trump was inaugurated that Democrats should “roll over and play dead.”¹³ This was not an isolated view.¹⁴

Missing from this public debate, however, was specificity regarding the range of legal and political tools available to the minority and how these tools could be deployed in strategic ways. This was particularly true with respect to the minority’s power to conduct oversight of Executive Branch actions. Beyond making general references to filibustering legislation and promising to do everything in their power to check the Trump administration’s abuses,¹⁵ few members appeared to be gaming out more strategic approaches to investigating the President’s actions.

Similarly, legal and political science scholarship has had limited focus on the wide range of tools that congressional minorities have at their disposal to conduct investigations. First, separation of powers studies have focused predominantly on the dynamics of legislating.¹⁶ Scholars have theorized about the extent to which minority parties in Congress may affect the lawmaking process,¹⁷ and significant research has been conducted on the use of specific legislative procedures utilized by the minority, such as the filibuster.¹⁸ But there has been relatively little focus in separation of powers literature on the minority’s power to conduct investigations. Second, scholarship that does examine Congress’s investigative power has focused mainly on disputes between majorities in Congress and the Executive Branch, while focusing less on the minority’s investigative powers.¹⁹ Although some scholars have examined specific minority rights, such as the motion to recommit,²⁰ few if any have focused on the minority’s broad range of investigative powers as a whole.²¹

The goal of this Article is to contribute to both of these public and scholarly debates by mapping the minority’s investigative powers in Congress. Surveying numerous oversight tools available to congressional minorities demonstrates that taking an all-or-nothing approach misses significant opportunities for the minority to effectively counter a unified party government. In short, the decision should not be viewed as binary, but rather as a continuum.

One audience for this analysis is lawmakers. To my knowledge, there has not been a comprehensive survey of minority investigative rights in Congress. This analysis is intended to spark more informed discussion about the full suite of oversight tools available to minority members and offer concrete proposals born of practical experience.²² The debate over Democrats’ response to the Trump administration’s actions has roiled well beyond President Trump’s first hundred days.²³

Mapping the minority’s investigative powers is also intended to answer calls from members of Congress, legal scholars, and political scientists for a more detailed study of Congress, legislative branch investigations, and minority rights in particular.²⁴ For example, although scholars have debated the causes of expanding or contracting minority rights, such studies have focused predominantly on inter-party dynamics within a single chamber.²⁵ This review expands the aperture to focus more broadly on minority investigative powers across the board as well as in the broader context of party incentives across branches. Parties completely locked out of power, as Democrats are today, can utilize these tools to help counter majority policies and fulfill their constitutional responsibilities.

To provide context for this review, I first analyze the constitutional and structural underpinnings of the minority’s investigative powers. Part II examines Congress’s investigative authorities under the Constitution, House and Senate rules and organizing structures, judicial distinctions between voluntary and mandatory fact-gathering, and the debate surrounding the constitutional authority of individual members of Congress to conduct investigations.

Part III then establishes a framework for assessing minority investigative powers. I examine three categories of rule-based rights the minority may invoke to conduct investigations based on the sources of their authority and usage: (A) unicameral rules passed by the House or Senate relating directly to investigative functions; (B) laws enacted by Congress granting rights to certain information; and (C) more general parliamentary provisions that minority members can use as leverage for their investigative objectives.

Beyond rights granted explicitly by House or Senate rules or by laws passed by Congress, minority members can also exercise broader political powers that are neither reliant on nor bound by these technical provisions. To this end, Part IV sets forth additional actions the minority can take beyond these rules and laws, including creative efforts to collect information from a range of public and non-public sources and disseminate that information in compelling ways. In addition to categorizing minority investigative powers in this way, I highlight throughout the Article some of the benefits and challenges with each approach and provide illustrative precedents drawn from past congressional minorities of both political parties.

Finally, in Part V, I offer several proposals for minorities based on this review. First is to move beyond the current all-or-nothing debate. To date, the discussion has been framed as an either-or choice between shutting down government (as a way to mitigate perceived harms) or rolling over (as a way to safeguard future electoral prospects). But the minority could serve both goals by deploying existing oversight tools more strategically. Although minority members have significantly fewer powers than the majority, they do have options. They could use these tools in combination or in succession, in coordinated approaches across committees, and in ways that some majority members support. Moreover, utilizing extant investigative tools that enjoy longtime political legitimacy may avoid more heightened electoral backlash than, for example, shutting down the government. Having a consolidated survey of these powers with examples of how they have been used may assist current and future minorities to develop unique, customized approaches to their investigative aims.

Second, the minority could mount a more effective opposition by coordinating resources in innovative ways to transcend Congress’s siloed organizational structures. The review below demonstrates that the current majority in Congress is now engaged in one of the most accelerated trends in a generation to curtail minority rights.²⁶ Previous theories suggesting that majorities are incentivized to retain minority rights because the shoe eventually could be on the other foot largely have given way to decades of successive majorities racing to cut off minority rights at increasing rates.²⁷ This negative spiral—especially pronounced with unified party government—has detrimental effects not only for the minority, but also for Congress as an institution. By eschewing robust oversight and restricting minority powers, the majority degrades the Legislative Branch’s capacity to fulfill one of its core constitutional duties: gathering information to ensure that the President and executive agencies are faithfully executing the law as Congress intends.²⁸ It also exacerbates a decades-long effort by the Executive Branch to aggrandize power at the expense of Congress.²⁹ Recognizing this trend, the minority could move beyond existing institutional stovepipes by coordinating their resources in new ways. It could cordon off staff to focus on proactive rather than defensive efforts, combine minority forces to collaborate across committees and even Capitol Hill, and generate minority work product that drives its own agenda more intentionally.

Third, to maximize these efforts to bypass existing institutional structures, which tend to divide and confine, minority members could move beyond Capitol Hill to better connect the results of their proactive work to their local constituencies. To illustrate how this proposal could function in practice, I highlight the work of Representative Henry Waxman (D-Cal.) who, while in the minority, used innovative information gathering practices to generate hundreds of district level reports for members of the House and Senate to highlight findings and communicate their priorities to their constituents.³⁰ By replicating and coordinating this model across committees of both houses, the minority could expand its reach and impact exponentially.

Finally, although solving the intractable problem of escalating hyper- partisanship is beyond the scope of this Article, I conclude by offering several modest suggestions for the minority to fulfill its investigative objectives while fostering opportunities for bipartisanship. These proposals can be entirely consistent with the minority’s larger objectives of mitigating harm and enhancing electoral prospects and do not prevent the minority from taking principled stands when called for.

II. Background on Powers of Individual Members of Congress

Before surveying oversight tools available to the minority, I provide an overview in this Part of the constitutional provisions relating to Congress’s investigative authorities. I also examine the importance of committees and political parties in the House and Senate, the legal and practical distinctions between voluntary and compulsory fact-gathering powers, and the inter-branch debate over whether individual members have constitutional authority to engage in oversight. Understanding these constitutional, legal, and functional foundations can assist in evaluating the potential effectiveness and likelihood of success in deploying the various investigative powers discussed in Parts III and IV.

A. Constitutional Authorities

The Constitution vests “[a]ll legislative Powers herein granted” in Congress.³¹ From its first days, Congress has insisted on its right to obtain information from the Executive Branch and private individuals when doing so is pertinent to the fulfillment of its constitutional responsibilities.³² Congress asserts its fact-finding authorities not only to inform legislation, but also to assess proposals for reform, oversee the operations of the other branches, monitor the expenditure of funds, remove Executive and Judicial Branch officers, combat waste, fraud, and abuse, and for many other purposes.³³ Congress also seeks information from, and about, other branches to safeguard its own role in the Constitution’s system of checks and balances.³⁴ In addition to informing themselves, members conduct investigations to inform their constituents about the functioning of their government.³⁵

The Supreme Court has confirmed repeatedly that Congress’s investigative power is inherent in, and indispensable to, the functions of the Legislative Branch.³⁶ This authority is “broad” and “encompasses inquiries into the administration of existing laws, studies of proposed laws, and ‘surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.’”³⁷ This authority is not unlimited. In addition to being subject to countervailing constitutional interests, Congress’s inquiries must serve a valid legislative branch purpose.³⁸ The test for determining the validity of congressional demands for information is not whether they inform a specific bill or resolution, which would be overly narrow, but whether they serve any legislative branch function under the Constitution, which is a much broader standard.³⁹ The Court has recognized other limitations as well, as when questions propounded to witnesses are not pertinent to an investigation or when investigative steps are beyond the authorization granted to a committee.⁴⁰

The foundational authority of each member of Congress to cast an informed vote is critical to the functioning of the House and Senate as components of the Legislative Branch.⁴¹ The Constitution envisions that a majority vote will carry the day for many Legislative Branch actions, such as the House and Senate choosing their respective officers⁴² and passing ordinary legislation.⁴³ However, it does not require a majority vote in all cases, and several provisions require higher or lower thresholds depending on their significance.⁴⁴

Individual members regularly seek information and conduct oversight to fulfill their constitutional responsibilities to the nation. In addition to informing their positions and votes on legislation, each member has representational responsibilities to the constituents of their states or districts.⁴⁵ Fact-finding can be critical for casework—assisting constituents with agency programs, grants, or contracts—and conducting this casework in turn may provide members with information to reform the operations and policies of federal bureaucracies.⁴⁶ These duties are typically served through a back-and-forth process of members seeking information regarding how funding and programs are affecting their communities, providing information to constituents regarding information they obtain, and soliciting input to inform proposals for reform.⁴⁷

B. House and Senate Organization

The Constitution makes no reference to committees or political parties but instead grants each house authority to set its own rules and organize internally.⁴⁸ Both the House and Senate have passed rules that create committees with defined jurisdictions.⁴⁹ Although the Founders may have envisioned a government beyond political parties, the two-party system is now embedded in the structures of Congress.⁵⁰ As just one example, both the House and Senate have chosen to base committee membership on party affiliation, with the majority party almost always having more members than the minority party on any committee.

Each party also has political organizations inside the House and Senate made up of members of their own parties and other parties who align with their interests. In addition to electing leaders, each party organization adopts its own rules.⁵¹ They have also established party organization “committees” that are distinct from congressional committees, including “steering” committees that decide on members’ congressional committee assignments and recommend candidates for leadership posts and “policy” committees that coordinate positions and messaging on legislation and other matters.⁵²

Standing within, and allegiance to, one’s political party has a direct impact on a member’s official responsibilities. For example, at the beginning of each Congress, members request committee assignments, which are made by party organizations and adopted through resolutions.⁵³ In the House, party affiliation is so central to its operations that switching parties results in the automatic withdrawal of a member’s committee assignments under House rules.⁵⁴ In contrast, senators who have switched parties after negotiations sometimes retained current positions or were rewarded with new ones.⁵⁵

Each house has authority to conduct investigations as a body.⁵⁶ The most common method of inquiry, however, is an investigation by a committee or subcommittee on a matter within its jurisdiction.⁵⁷ Committee inquiries are not the only types of investigations authorized by House or Senate rules. Members of the House and Senate can work jointly through bicameral committees,⁵⁸ temporary House-Senate commissions,⁵⁹ conference committees for specific legislation,⁶⁰ or more ad hoc House-Senate collaborations.⁶¹ Congress has also granted investigative authorities to non-member entities, including the Government Accountability Office (“GAO”) and the Congressional Research Service (“CRS”), which have authority to collect information from federal agencies to conduct reviews of Executive Branch programs.⁶²

Individual members may pursue oversight efforts using staff and funding provided for their personal or district offices.⁶³ In addition, the top minority member on each committee, referred to as the “ranking member” or “ranking minority member,” can use minority committee staff and funding to conduct inquiries, report on findings, and inform legislative and other proposals.⁶⁴ Each party’s leadership also receives funding to support their parallel party organizations, which may include staffing, access to congressional offices and facilities, websites and other communications resources, and the ability to hold public events.⁶⁵

In addition to the rights the Constitution grants to all members, House and Senate rules grant individual members rights to participate on the floor and in committees.⁶⁶ As discussed in more detail in Part III, members have the right to make motions, debate, and cast votes that may result in legislative action or block such action.⁶⁷ These rights ensure that minority party members, although less likely to prevail in most instances, may engage in these processes and perhaps convince enough majority members to join them in affecting the outcome.⁶⁸

In conducting investigations, Congress generally seeks two broad categories of information: records and witness accounts.⁶⁹ Records may include documents created in the past, such as emails, letters, or memoranda, or new documents created for the purpose of informing Congress, such as annual or semi-annual reports prepared by agencies.⁷⁰ Witness accounts may be conveyed in formal proceedings, as in official testimony at public hearings, sworn depositions, and transcribed interviews, as well as in more informal settings, such as briefings, roundtable discussions, or private meetings.⁷¹

C. Voluntary Versus Compulsory Information Gathering

Most information sought by Congress is provided voluntarily.⁷² Traditionally, the Executive Branch has answered inquiries from all members of Congress, and federal agencies have routinely provided information about programs and funding spent in their districts and states.⁷³ Private sector and corporate entities also regularly provide information without subpoenas in response to queries about their activities.⁷⁴ Despite their high-profile attention in the press, congressional subpoenas are relatively rare,⁷⁵ and examples of individuals being held in contempt after failing to comply with subpoenas are even less frequent.⁷⁶ When information is not produced voluntarily, a member of Congress may seek to compel its production. Broadly speaking, this could occur through rule-based enforcement mechanisms, such as subpoenas, or by applying political pressure generated by withholding cooperation on other matters or ramping up pressure in other ways. Although I discuss many of these options in Parts III and IV below, it is helpful first to briefly describe Congress’s rules governing the issuance of subpoenas.

Pursuant to their constitutional rulemaking authority, the House and Senate have adopted rules that authorize subpoenas to require recipients to produce records or testimony through compulsory means. Generally, subpoenas may be authorized in two ways. The traditional manner is for a committee or subcommittee to consider a subpoena motion, debate its merits, offer amendments if necessary, and vote on whether to approve it.⁷⁷ After a successful subpoena vote, the committee chair or designee must sign and serve it, at which point it becomes legally binding on the recipient.⁷⁸ This is the case even if the chair personally voted to oppose a subpoena. In addition, members have the right to call a “special meeting” of a committee for the purpose of considering agenda items—including subpoenas—without the chair’s permission or consent, provided a majority of committee members supports the effort.⁷⁹

More recently, an alternative method of issuing subpoenas evolved to allow committees to authorize their chairs to issue subpoenas with no debate or vote.⁸⁰ When Republicans came to power in the House in 1995, they authorized the Chairman of the House Oversight Committee, Representative Dan Burton (R-Ind.), to issue subpoenas unilaterally.⁸¹ This was a change from the practice since the McCarthy era in which subpoenas had been issued only with the agreement of the ranking member or after a debate and vote in which all committee members could participate.⁸² Chairman Burton was the subject of widespread criticism after he famously issued more than 1,000 unilateral subpoenas that focused overwhelmingly on Democratic party and government officials, but this unilateral subpoena authority nevertheless spread to other House committees and to some, but not all, Senate committees.⁸³

Importantly, when the House and Senate authorized committee chairs to issue unilateral subpoenas, they did not remove the traditional mode of adopting subpoenas through deliberation and voting. Regardless of which method is used, a subpoena has the force of law after it is authorized and served in compliance with these procedures.⁸⁴ If a recipient continues to defy a subpoena, the House or Senate may seek to enforce it through the criminal contempt statute, which provides that, after a vote of the House or Senate, the U.S. Attorney for the District of Columbia shall bring the matter before a grand jury.⁸⁵ The House or Senate also may authorize civil suits that do not rely on federal prosecutors but, like criminal contempt actions, generally require the support of the majority party.⁸⁶ Apart from these contempt alternatives, minority members may seek to enforce demands for information in civil court based on other specific statutory grants of authority.⁸⁷

The most significant obstacle to an individual minority member or a group of minority members compelling the production of records or testimony is the political reality that they may not convince majority members to support subpoenas or hold recalcitrant witnesses in contempt. Minority members do not have the numbers by themselves to approve subpoenas, assuming all majority members are present, so they must convince at least some majority members to join their efforts.⁸⁸ This is not impossible, but the chances are concededly small.⁸⁹

This challenge is a practical and political impediment, not a constitutional or legal one. Apart from other statutory or requirements discussed below, a voluntary request for documents or testimony is not legally enforceable without a subpoena, regardless of who offers it. A minority request could become legally binding if a majority of committee members votes to approve a subpoena, but that outcome will not be known until a vote is taken. The flip side is also true: a request from a majority chair is not legally enforceable until a subpoena is issued, either unilaterally or by a vote, and recipients are under no legal obligation to comply with voluntary requests, although they may want to avoid the potential future consequences of failing to do so.

D. Constitutional Authority of Individual Members

Individual members have their own constitutional authority to conduct inquiries to fulfill their legislative branch responsibilities, even if they might struggle to compel compliance with demands for information. The general view of the Legislative Branch is that each member of Congress, as a duly elected official with a full range of constitutional responsibilities, has authority to make inquiries, conduct oversight, and perform investigations. At the same time, as Congress’s research arm has explained, members may not be able to compel the production of information from parties unwilling to provide it.⁹⁰

The Judicial Branch has recognized that individual members have a constitutional basis to seek information. In Murphy v. Department of the Army, the D.C. Circuit held that when the Army provided an internal memorandum regarding a dam construction project to a House member representing the district where the dam was being built, the Army did not waive the right to invoke the deliberative process exemption under the Freedom of Information Act (“FOIA”) when a private party sued to obtain the same document.⁹¹ The court contrasted the constitutional authority of members of Congress with the general interests of the public, stating: “[a]ll Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information.”⁹² The court noted that all members, including minority members, have their own constitutional right to seek information:

Each of them participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.⁹³

A significant caveat to Murphy is that it involved an agency that voluntarily provided Executive Branch documents to a member of Congress. Although the court recognized the constitutional authority of members to seek information, it did not address what happens when a member’s request is refused. Generally, absent a separate statutory or other mandatory requirement, courts have not supported efforts by individual members to force the Executive Branch to produce information without subpoenas.⁹⁴

Within the Executive Branch, the Justice Department was relieved that Murphy found no FOIA waiver when agencies voluntarily provide information to members of Congress, but the Department was concerned with the “quite troubling” suggestion that individual members might have a judicially recognized right to demand more information than the public.⁹⁵ To address this concern, the Department issued guidance in 1984 stating that agencies are not required to provide individual members with information exempted under FOIA, but should exercise discretion and “of course give very careful consideration to any access request received from a Member of Congress, with discretionary disclosure often a possibility.”⁹⁶ Administrations of both political parties have highlighted the challenges of agencies responding to all individual member requests.⁹⁷ At the same time, past administrations dating back to President Reagan highlighted the goal of providing as much information as possible in response to minority and individual member requests.⁹⁸

In 2017, the Trump administration took a much more divisive approach. A White House lawyer reportedly directed federal agencies to stop responding to requests from Democratic members, including committee ranking members, and to provide information only in response to requests from Republican committee chairs.⁹⁹ The White House Counsel’s office asked the Justice Department’s Office of Legal Counsel (“OLC”) for an opinion on this issue, and OLC responded with a letter arguing that individual members lack any constitutional authority to conduct oversight as part of their legislative duties.¹⁰⁰ Omitting any discussion of the Murphy decision, OLC rested its conclusion on the claim that minority requests are “not legally enforceable” through subpoenas or contempt.¹⁰¹ OLC framed its claim as a delegation argument, arguing that only committees have been authorized through House and Senate rules to conduct investigations.¹⁰² Unlike with committee chairs who may issue subpoenas unilaterally, the House and Senate have delegated no authority to individual members, according to OLC, so a letter from a minority member “is not properly considered an ‘oversight’ request.”¹⁰³ OLC adopted a “general policy” of providing only documents that were already public or available through FOIA.¹⁰⁴

OLC may have argued that individual members lack constitutional authority to conduct oversight as a prophylactic defense against possible legal concerns caused by the Trump administration’s new position that Democrats were entitled to nothing.¹⁰⁵ There is a hint to this effect in OLC’s claim that minority requests do not “trigger any obligation to accommodate congressional needs.”¹⁰⁶ This appears to be a reference to the D.C. Circuit opinion in United States v. AT&T Co., which held that the Constitution requires the Executive and Legislative Branches “to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.”¹⁰⁷ While a complete refusal to respond to all minority requests might cause some to invoke AT&T, under OLC’s theory this constitutional mandate could never be triggered by voluntary requests from the minority. In any case, according to one former OLC attorney, although OLC had previously relied on a “zone of uncertainty” that facilitated negotiation, its 2017 opinion “provided express support for upending the longstanding and beneficial tradition of respect between the branches.”¹⁰⁸

The most forceful response to the OLC opinion came from a member of President Trump’s own party, the Chair of the Senate Judiciary Committee, Senator Chuck Grassley (R-Iowa). First, he sent a letter to President Trump asserting that “all members need accurate information from the Executive Branch in order to carry out their Constitutional function to make informed decisions on all sorts of legislative issues covering a vast array of complex matters across our massive federal government.”¹⁰⁹ Senator Grassley noted that the OLC opinion “fails to cite and analyze any authority that challenges its conclusion,” including in particular the D.C. Circuit’s decision in Murphy.¹¹⁰ Next, Senator Grassley placed a hold on President Trump’s pending nomination of Steven Engel to head OLC.¹¹¹ Engel and Senator Grassley then exchanged letters in which Engel admitted that OLC should have addressed Murphy and explicitly confirmed that individual members in fact “are ‘authorized’ to seek such information in their roles as constitutional officers.”¹¹² He also wrote that the Executive Branch “should seek to satisfy the legislative needs of Members” and “may well provide information to Members that goes beyond the requirements of the FOIA statute.”¹¹³

For good measure, Senator Grassley also secured a letter from the White House stating that OLC’s 2017 letter “was not intended to provide, and did not purport to provide, a statement of Administration policy.”¹¹⁴ This remarkable letter also explained that the White House’s policy was to “respect the rights of all individual Members, regardless of party affiliation, to request information about Executive Branch policies and programs” and “use its best efforts to be as timely and responsive as possible in answering such requests.”¹¹⁵ With these concessions in hand, Senator Grassley lifted his hold, Engel was confirmed, and OLC issued a new opinion in 2019 more in line with Engel’s letters to Senator Grassley.¹¹⁶ Although some scholars continue to cite OLC’s 2017 letter for the proposition that, “[a]s a constitutional matter, the minority party has no legal rights to information,” they omit any discussion of Chairman Grassley’s letter, the White House’s subsequent letter explaining that the OLC letter was not a statement of Trump administration policy, or OLC’s revised position that individual members are authorized to seek information in their roles as constitutional officers even if they may not have unilateral authority to compel compliance.¹¹⁷

This more comprehensive understanding of minority investigative rights exposes flaws in OLC’s overly narrow theoretical construct. Take OLC’s claim that minority requests are not constitutionally authorized because they are not “enforceable” through subpoenas. As discussed, neither majority nor minority requests are enforceable until subpoenas are issued pursuant to the procedures set forth in House or Senate rules. In this legal sense, both letters from committee chairs and ranking members have the same status—unenforceable—until subpoenas are issued. The fact that a chair may have power to issue a subpoena unilaterally in the future does not change the legal status of a voluntary letter request today. Yet OLC treated the political likelihood of a chair subsequently issuing a subpoena as having determinative legal effect in the present.

OLC’s reasoning also rests on the assumption that no subpoenas ever could be issued to enforce minority requests. This assumption is wrong based on both process and precedent. The House and Senate have authorized not one process for issuing subpoenas, but two: unilaterally by committee chairs and through committee deliberation and voting by committee members. OLC focused only on the first method, arguing that the House and Senate have not delegated individual members authority to issue subpoenas unilaterally. OLC failed to address the second method: House and Senate rules delegate authority to any member to make motions for subpoenas, including subpoenas the chair opposes.¹¹⁸ A minority member participating in an investigation within a committee’s jurisdiction has just as much legal authority to move for a subpoena as any other committee member; the only difference is the political likelihood of eventually prevailing on a vote to obtain it. The operative question is not whether legal authority exists for minority members, but whether they can convince enough majority members to join their effort.¹¹⁹

There have been several examples, although limited, of minority members succeeding in obtaining subpoenas even when chairs opposed them.¹²⁰ The most recent was offered by Representative Summer Lee (D-Pa.). During an Oversight Committee hearing on the abuse of “Unaccompanied Alien Children,” Representative Lee made a successful motion to compel Attorney General Pam Bondi to produce the Justice Department’s complete file on child sex trafficker Jeffrey Epstein. Her motion was debated, amended, and ultimately adopted by the Subcommittee with strong bipartisan support in full compliance with House rules, despite the fact that the chair opposed it.¹²¹ A member of the majority party who voted in favor of her motion described the deliberative process for approving this subpoena as follows:

[Y]ou are watching us. This is democracy in motion . . . . We, as an oversight committee, we have writ authority over our subpoena, over this motion . . . . [T]here is no one from the White House in the room today. There is no one from the DOJ in the room. This is us operating as our own legislative vehicle doing this independently.¹²²

Apart from successful subpoena motions by the minority, the Executive Branch and other entities may continue to decline to cooperate with voluntary minority requests when it is not in their interests to do so. Whether these refusals are based on legal theory or political calculus, the minority is left with limited options: invoke rules or laws that give them specific rights to seek information, take advantage of other more general parliamentary rules to generate greater leverage, or operate beyond these rules. I turn to each approach below.

III. Minority Investigative Powers Based in Rules

In addition to authorizing all members to participate in floor and committee proceedings, the House and Senate have adopted provisions that provide members with rights to take specific investigative steps to gather information and inform their colleagues and the public of their findings. Below I focus on three categories: (A) unicameral rules related directly to Congress’s investigative function; (B) statutes enacted by Congress related directly to the investigative function; and (C) general parliamentary rules which, although not expressly related to the investigative function, may be used as leverage to pursue investigative aims. These lists are not comprehensive, but they catalog some of the most significant tools available to the minority, along with some of the benefits and most pressing challenges that accompany them.

A. House and Senate Rules Related to Congress’s Investigative Function

1. Right to Invite Minority Hearing Witnesses

One of Congress’s most basic tools to gather information is the committee hearing. Several recent studies have examined the impact that witnesses and their testimony can have on Legislative Branch functions.¹²³ They also show how witness testimony can affect judicial opinions¹²⁴ and influence public opinion.¹²⁵ Hearing witnesses can be Executive Branch officials, private sector representatives, constituents, whistleblowers, or any other person from whom a committee wishes to obtain testimony.¹²⁶ They can discuss existing programs, identify problems that need legislative remedies, provide feedback on legislative proposals, call attention to waste, fraud, or abuse, encourage Executive Branch action without legislation, inform the public about government functions, and serve many other purposes.¹²⁷ Members also can hold witnesses, including Executive Branch officials, to account for their actions. One particularly famous example was former Federal Reserve Chairman Alan Greenspan’s testimony after the financial collapse of 2008. During questioning by Chairman Henry Waxman, Chairman Greenspan admitted to the House Oversight Committee that he had “made a mistake” in presuming the self-interest of banks would protect the interests of shareholders, investors, and the public.¹²⁸ His testimony was front page news and, combined with other congressional investigations, helped coalesce support for the Dodd-Frank Act, which passed in the following Congress.¹²⁹

Under House and Senate rules, committee chairs have authority to determine when and where to call hearings, what topics to cover, and which witnesses to invite.¹³⁰ An invitation to testify at a hearing is often viewed as an honor,¹³¹ but it can be intimidating when witnesses are under a committee’s microscope or are unfamiliar with congressional practice.¹³² The House and Senate have granted all members, including those in the minority, certain rights at hearings. For example, members have a right to question witnesses, and they can elicit information or extract commitments to provide information.¹³³

Minority members also have a right to invite witnesses of their own. House and Senate rules both authorize minority members to have their own separate day of hearings with witnesses they invite.¹³⁴ There are several challenges to this approach. First, the majority decides when to schedule minority hearing days, and they may not occur until months later, after interest in the topic has waned.¹³⁵ In addition, scheduling for potential minority witnesses may be difficult because the majority generally is required to provide only a week’s notice.¹³⁶ Not having a minority witness at the primary hearing also removes a tool to help rebut testimony from majority witnesses in real time. In addition, the minority may want to hear from witnesses who have no desire to appear, such as Executive Branch officials or corporate executives who want to avoid public scrutiny. Although the rules allow minority members to invite their own witnesses, they do not authorize the minority to compel attendance. Finally, even supportive witnesses may not want to subject themselves to grilling by the majority and may prefer instead to participate in minority-only events.¹³⁷

For these reasons, the minority is often willing to accept a bargain for hearing witnesses: invite a single minority witness to appear during the main hearing with majority witnesses rather than insist on a separate minority hearing day on an inconvenient or uncertain date in the future.¹³⁸ Some committees have memorialized this arrangement in committee rules.¹³⁹ Still, some minority members have utilized this minority witness rule, especially in the House. For example, House Republicans invoked the rule in 2019 to obtain a minority day to showcase their opposition to legislation converting the District of Columbia into a state.¹⁴⁰ The minority day, however, was scheduled months after the original hearing.¹⁴¹ The Senate minority, in contrast, does not appear to use this provision as frequently.¹⁴²

Minority members could request many more witnesses at hearings than they currently do. Working with outside groups, interested stakeholders, and affected constituencies, they could request panels of multiple witnesses to respond to majority witness testimony and provide proactive minority messaging. A determined and well-organized minority could use this tactic broadly as part of a concerted campaign to bring greater attention to their causes.

2. Right to Move to Subpoena Witnesses

As discussed in Part II, subpoenas generally can be authorized in two non-exclusive ways: through deliberation and voting by committees or unilaterally by chairs if they have been granted this authority. For the minority, a threshold issue is whether their motions for subpoenas will be ruled in order. In the House, the rules expressly authorize members to make motions to subpoena witnesses at hearings.¹⁴³ The minority may not have the numbers to prevail, but the accompanying debate can highlight needed testimony from witnesses who refuse requests to testify voluntarily. The minority can repeat these motions if the majority continues not to call key witnesses. For example, in the weeks after President Trump first returned to office, the minority on the House Oversight Committee moved to subpoena the testimony of Elon Musk, the reputed head of the Department of Government Efficiency (“DOGE”).¹⁴⁴ Although the motion was unsuccessful, it brought significant attention to the issue of DOGE obtaining access to Americans’ personal data.¹⁴⁵ Four months later, they again moved to seek Musk’s testimony, arguing that concerns had deepened.¹⁴⁶ Although this motion was also unsuccessful, the majority was forced to delay proceedings while they rushed to gather enough members to defeat it.¹⁴⁷ Minorities on other House committees have moved for multiple subpoenas in a single hearing to highlight testimony they believe is needed, and these sometimes attract votes from majority members.¹⁴⁸

In the Senate, no rule expressly authorizes senators to move for subpoenas at hearings. Senators may try to move for witness subpoenas at business meetings during which committees debate, vote on, and report legislation and other measures, but since chairs set the agendas, they can rule motions for extraneous business out of order. This occurred during a business meeting held by the Senate Health, Education, Labor and Pensions Committee when minority members moved to subpoena Musk.¹⁴⁹ Exceptions allow the minority on certain committees to add agenda items to business meetings, but these are rare.¹⁵⁰ In addition, members may avail themselves of the separate rule authorizing the holding of “special meetings” without the chair’s consent, but these require at least some majority buy-in to succeed.¹⁵¹

Finally, senators in the minority may rely on committee-specific rules. For example, Senate Judiciary Committee Rule 4 states that the chair “shall entertain a non-debatable motion to bring a matter before the Committee to a vote.”¹⁵² During a business meeting in July 2025 to consider the nomination of Justice Department official Emil Bove to a circuit court judgeship, Senator Cory Booker (D-N.J.) invoked Rule 4 to move to obtain testimony from a whistleblower who reported that Bove had directed prosecutors to ignore court orders.¹⁵³ Rather than allowing the vote, Chairman Grassley ruled Senator Booker out of order.¹⁵⁴ Although Senator Booker repeatedly appealed to Chairman Grassley to comply with the Committee’s rule, Chairman Grassley refused, which caused the minority to leave in protest.¹⁵⁵

3. Right to Move to Subpoena Documents

When seeking documents, minority members can begin by writing letters requesting that agencies or other parties voluntarily produce certain records, but as discussed above, recipients may choose not to comply. The minority can ask the majority to join these requests, but enforcement depends on the majority’s willingness to consider compulsory measures. For example, Representative Elijah Cummings (D-Md.), when in the minority, successfully convinced Representative Mark Meadows (R-N.C.), then in the majority, to co-sign a letter requesting information on immigrant children separated from their families under a policy adopted during the first Trump administration.¹⁵⁶ When the Trump administration refused to produce the information, however, Representative Meadows declined Representative Cummings’s request to support a subpoena.¹⁵⁷

In the House, the Parliamentarian has advised that members have authority to make motions to subpoena documents at hearings under the same rule that authorizes them to move to subpoena witnesses.¹⁵⁸ Although the text of the rule refers only to witnesses, the accepted practice of committees has been to recognize motions for document subpoenas as well.¹⁵⁹ In one isolated case, former House Oversight Committee Chair Darrell Issa (R-Cal.) disregarded the Parliamentarian and argued that motions to subpoena documents were not in order.¹⁶⁰ In such cases, a workaround for the minority is to move to subpoena custodians of specified documents since the subpoena would compel the appearance of a witness. This is how the minority responded to Chairman Issa when they moved to subpoena custodians of records at several mortgage servicing companies accused of mistreating servicemembers.¹⁶¹

It has become common for members of Congress and the media to state as a fait accompli that “the minority does not have subpoena power.”¹⁶² Although it is true that only certain committee chairs have authority to issue subpoenas unilaterally, and although it is unlikely the minority will win votes on subpoena motions, there have been multiple instances in which both Democratic and Republican minorities have been successful in obtaining subpoenas. Three examples from both sides of the aisle on the House Oversight Committee illustrate this point.

In 2004, Ranking Member Henry Waxman was investigating how President George W. Bush’s administration mismanaged Iraqi oil sale proceeds after the Iraq War.¹⁶³ Although the majority held multiple hearings about the Oil-for-Food Program run by the United Nations, they had not focused on the Bush administration’s mishandling of the Development Fund for Iraq.¹⁶⁴ At a hearing chaired by Representative Christopher Shays (R-Conn.), Representative Waxman moved to subpoena the Federal Reserve Bank of New York, which had information about the administration’s actions. Representative Waxman had a compelling argument on the merits, explaining that if the Committee was investigating mismanagement by the United Nations, it should examine U.S. actions as well.¹⁶⁵ He also had ready to insert into the record an email sent from the Bank on the eve of the hearing explaining that it would provide the documents if it had a compulsory subpoena.¹⁶⁶ Finally, Representative Waxman had the numbers on that day to win the vote since several Republican members did not attend.¹⁶⁷ Chairman Shays agreed to issue the subpoena without a vote, and the Committee obtained the documents.¹⁶⁸

In 2009, then-Ranking Member Issa was investigating allegations that Countrywide Financial Corporation’s “VIP Program” provided beneficial loan terms to gain favor with government officials, including members of Congress.¹⁶⁹ When it was reported that the Committee’s chairman, Representative Edolphus Towns (D-N.Y.), had received two Countrywide loans,¹⁷⁰ Representative Issa threatened subpoena motions that caused concern for Democratic members.¹⁷¹ After two Democrats broke ranks and indicated support,¹⁷² Chairman Towns agreed to sign the subpoena without a vote.¹⁷³

Finally, as mentioned above in Part II, on July 23, 2025, Representative Summer Lee, the Ranking Member of the Subcommittee on Federal Law Enforcement, moved to subpoena the Justice Department to produce the complete investigative file on convicted child sex trafficker Jeffrey Epstein.¹⁷⁴ During debate on the motion, the Subcommittee adopted an amendment to allow the Justice Department to redact personal information from Epstein’s victims and rejected an amendment to allow the Justice Department to withhold information it deemed not “credible.”¹⁷⁵ Unlike the examples above in which the Chairs agreed to issue subpoenas without voting, in this case, the Subcommittee Chair, Representative Clay Higgins (R-La.), called a vote on Representative Lee’s amendment, which passed with overwhelming bipartisan support.¹⁷⁶

4. Motion for Resolution of Inquiry

Any member of the House may introduce a resolution of inquiry on the House floor to request from the President or demand from agencies information in their possession.¹⁷⁷ If a committee to which the resolution is referred fails to act within fourteen legislative days—favorably, unfavorably, or without recommendation—a motion on the floor to discharge the committee is privileged and must be considered before other business.¹⁷⁸ Under these procedures, minority members may introduce resolutions of inquiry that essentially force committees to hold business meetings in relatively short order to consider resolutions.¹⁷⁹ If committees fail to take up resolutions within this timeframe, the minority can put all House members on record through floor votes. As with other motions, resolutions of inquiry will not pass without at least some majority support, but they can call attention to information the majority is declining to request and the Executive Branch is refusing to provide.¹⁸⁰

Dwarfing these obstacles, however, is a procedural maneuver House Republicans made on April 29, 2025, to block consideration of additional resolutions of inquiry. During the first months of the Trump administration, minority members had been filing resolutions of inquiry at a rapid clip on a variety of topics, including the firing of federal employees, security clearances for Musk and his team, and DOGE’s use of artificial intelligence.¹⁸¹ No resolutions had been successful, but minority members then filed resolutions seeking information about Defense Secretary Pete Hegseth’s use of Signal group chats to discuss classified military strikes on Yemen.¹⁸² Majority members on the House Armed Services Committee sought to avoid consideration of the resolution because their ranks included one Republican who had called on President Trump to fire Secretary Hegseth and other members of the Committee who were facing competitive races.¹⁸³ Instead, the House Rules Committee added a provision to a rule governing floor debate on an unrelated measure, declaring the five-month period from April 29 to September 30 a single “legislative day” for purposes of resolutions of inquiry, effectively postponing their consideration until October.¹⁸⁴ The measure passed on a party line vote, although some Republicans expressed concern¹⁸⁵ and others pointed to similar actions by Democrats when they controlled the House during the Biden administration.¹⁸⁶ When the October deadline was about to be reached, the House extended this provision to March 2026 by adopting a rule reported out by the Rules Committee, at which point the House extended it again, effectively freezing all resolutions of inquiry through the 119th Congress.¹⁸⁷

B. Federal Statutes Related to Congress’s Investigative Function

1. Right of Certain Members to Obtain Documents from Agencies

In addition to rights minority members have by virtue of rules adopted by the House or Senate, they also have certain rights in statutes. One of these, enacted through legislation signed by President Calvin Coolidge in 1928, is known as the “seven-member rule” in the House and the “rule of five” in the Senate.¹⁸⁸ Under this law, federal agencies are required to provide “any information” requested by seven members of the House Oversight Committee or five members of the Senate Homeland Security and Governmental Affairs Committee.¹⁸⁹ By the terms of the statute, both the House and Senate delegated authority to individual members who may not be in the majority and are not committee chairs. In other words, this statutory provision empowered minorities on these committees to obtain information from federal agencies since their majority counterparts already had the ability to use subpoenas. The Executive Branch has honored some requests made pursuant to this statute. For example, the State Department complied with a request under this statute in 2016 when the minority of the House Oversight Committee sought records about former Secretary of State Colin Powell’s advice to Secretary Hillary Clinton not to use agency email systems.¹⁹⁰ In addition, the General Services Administration (“GSA”) complied with a request in 2016 for information about GSA’s lease with President Trump for the Old Post Office Building in Washington, D.C., noting that providing the information was consistent with judicial and OLC opinions.¹⁹¹

There are several challenges with using this statute, however. First, although previous administrations had concluded that this statutory right met even OLC’s limited interpretation of a constitutional delegation to minority members, the Trump administration reversed course in 2017. Although GSA had previously complied with requests under the statute, the Trump administration rejected subsequent requests to obtain information about GSA’s failure to enforce a contract provision barring elected officials from being parties to government leases.¹⁹² GSA’s one-page response conspicuously ignored the statute’s clear delegation of authority to members of the minority and instead forwarded OLC’s 2017 letter—just days before the White House withdrew it—arguing that “[i]ndividual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”¹⁹³

Litigation to enforce demands under this law has had limited success. Two cases brought in the 2000s resulted in split decisions by district courts.¹⁹⁴ When minority members of the House Oversight Committee went to court a third time in the GSA case above, the D.C. Circuit held that the members had standing under Article III to enforce this statutory right.¹⁹⁵ The court noted the law’s “express conferral of its informational right on a minority of committee members.”¹⁹⁶ Although the Executive Branch argued that the remedy for minority members should be to seek a subpoena from the majority, this effort would be unlikely to succeed for political reasons, as discussed above, and more importantly, would undermine the clear purpose of the authority Congress provided in the law. As the D.C. Circuit noted, requiring the minority to go back to the majority for a subpoena would “empty the statute of all meaning.”¹⁹⁷

Another challenge is that resolving these disputes can be a lengthy process.¹⁹⁸ The GSA investigation and ensuing litigation, for example, spanned four congresses and two administrations over seven years. Democrats ultimately withdrew their suit, which GSA had appealed to the Supreme Court, because the Biden administration produced the vast majority of records withheld by the Trump administration.¹⁹⁹ As a result, the Court, which had granted certiorari to hear the case, ordered its dismissal and vacated the lower court’s decision.²⁰⁰

Another potential challenge is the Trump administration’s claim that information available under the statute should be limited to only those categories of information in previously required reports that were discontinued by the law when it passed in 1928.²⁰¹ According to this argument, because Congress repealed specific statutory requirements for certain reports at the same time it granted minority members the right to demand information, members seeking to invoke the statute should be limited to information that would have been provided in the reports discontinued by the 1928 law. However, this argument contradicts the plain language of the law, which covers “any information” rather than information in discontinued reports. The Trump administration made this claim in the GSA case, but the D.C. Circuit did not address it.²⁰²

Another more recent challenge is that the House majority added a provision to their rules in 2023 requiring that one of the seven signatories from the House Oversight Committee invoking the statute must be the chair.²⁰³ This is a direct effort to undermine the right of the minority to obtain information from the Executive Branch, as members of the minority pointed out.²⁰⁴ However, it is unclear whether members of one house of Congress, through a unicameral change to their internal rules, may impose on courts additional standing requirements that are not included in a statute passed through bicameralism and presentment. It is possible that a court may find that it is bound to follow the statute and that the House, acting alone, may not impose additional requirements on the Judicial Branch.²⁰⁵

Senate rules do not similarly require the chair to be among the senators making a request under the statute. Although the Senate’s use of this provision had long been dormant, it sprung to life in July 2025 when members of the Homeland Security and Governmental Affairs Committee sent a request for the Attorney General to produce a wide range of material related to Jeffrey Epstein.²⁰⁶

2. Right to Request GAO Investigations

Another option for minority members is to request investigations by GAO.²⁰⁷ Congress established GAO in the Budget and Accounting Act signed by President Warren G. Harding in 1921.²⁰⁸ The law created GAO as a Legislative Branch agency authorized to “investigate all matters related to the receipt, disbursement, and use of public money.”²⁰⁹ Congress and the President agreed that agencies must provide GAO with information required to fulfill its mandate and that GAO may inspect agency records.²¹⁰ GAO has issued protocols that set forth the order of requests it accepts from members of Congress.²¹¹ GAO’s highest priority is fulfilling “congressional mandates,” which are requirements in statutes, resolutions, conference reports, and committee reports.²¹² Its second priority is to fulfill “[s]enior congressional leader and committee leader requests,” which include requests from committee chairs and, importantly, ranking minority members.²¹³ GAO’s third priority is to fulfill individual member requests.²¹⁴ Based on these protocols, minority members can ask GAO to investigate the activities of agencies and other entities, and they may elevate their requests from third priority to second with the support of a committee’s ranking member.

In addition to receiving GAO’s final report, members can receive status updates and briefings along the way.²¹⁵ These briefings may be public and may include press.²¹⁶ In some cases, GAO staff with subject matter expertise will answer questions from the media and provide on-camera interviews.²¹⁷ GAO officials may testify as minority witnesses on the same panel with majority witnesses or at minority days of hearings.²¹⁸ Members also may request copies of work papers that GAO obtains during its investigations, including “access to specific, selected audit documentation.”²¹⁹

The biggest challenge to the minority using this tool is when agencies refuse to cooperate with GAO. Congress anticipated this problem and enacted a statutory process in 1980 to resolve these types of impasses.²²⁰ Under this law, GAO is required to make a written request to the agency head, who has twenty days to respond.²²¹ If the agency still refuses, GAO can file a report with the agency head, President, director of the Office of Management and Budget (“OMB”), Attorney General, and Congress.²²² If this effort fails, the law authorizes GAO to bring a civil enforcement action in the U.S. District Court for the District of Columbia.²²³ This process gives members of Congress and Executive Branch officials opportunities to address disputes informally before going to court, and it is particularly important for the minority. Unlike majority requesters who have a higher likelihood of approving subpoenas, the minority relies more on the law’s authorization of civil litigation to bring recalcitrant agency officials to the table.

Despite this explicit statutory authority to seek judicial enforcement, a district court found in 2002 that GAO lacked standing to bring a case under the statute.²²⁴ In Walker v. Cheney, Representatives Henry Waxman and John Dingell (D-Mich.), the Ranking Members of the House Oversight and Energy and Commerce Committees, respectively, asked GAO to investigate then-Vice President Dick Cheney’s energy task force and its meetings with industry officials.²²⁵ When the task force refused to provide requested information, GAO followed the statutory process, which culminated in a civil suit.²²⁶ Ruling against GAO, the court disregarded the express grant of enforcement authority in the law, noting that the House had not passed a subsequent resolution authorizing GAO’s specific suit in this case.²²⁷ The court also noted, incorrectly, that the documents were sought only by individual members rather than by a committee and suggested they had an “alternate remedy” of seeking a subpoena instead of GAO using the statutory remedy Congress authorized.²²⁸ It is unclear whether the court’s opinion was influenced by the involvement of the Vice President, but GAO decided not to appeal.²²⁹

Congress overwhelmingly rejected the district court’s position in landslide bipartisan votes on the GAO Access and Oversight Act, which it passed in 2017.²³⁰ The law made clear Congress’s intent that GAO is authorized and has standing to bring suit without the need for subsequent votes by Congress or a committee.²³¹ Members of the House and Senate of both parties reiterated this view during debate on the measure.²³² GAO has continued to accept minority requests, and although it has not had to initiate civil suits, having statutory enforcement authority appears to provide leverage in negotiations with agencies.²³³

Finally, there have been more recent challenges to GAO’s authority, independence, and potential willingness to take on minority requests. These include a failed attempt to embed a DOGE team into GAO despite its status as a Legislative Branch agency,²³⁴ reports that the Trump administration was readying a challenge to GAO’s authority to review impoundments of federal funds,²³⁵ unsuccessful efforts by House Republicans to slash GAO’s funding,²³⁶ and the possibility of a separation of powers “battle royale” over President Trump’s upcoming nomination for a new Comptroller General to lead GAO for the next fifteen years.²³⁷

3. Right to Inspect Government Facilities

Members gain valuable information by visiting government facilities and speaking with agency employees, and they have been doing so for many years. In his capacity as an individual senator, Harry S. Truman traveled more than 10,000 miles to visit defense facilities across the country and, based on his findings, proposed a special committee to examine profiteering in defense contracting that became a model of effective congressional oversight.²³⁸ Similarly, Senator Grassley “famously drove his car to the Pentagon after being stonewalled by Defense Department officials who wouldn’t allow him to speak with a certain department employee about a highly critical report.”²³⁹

Whether members can gain entry to facilities controlled by the Executive Branch may depend on political, operational, and legal factors. For the political calculus, members of the same party as the President are less likely to be turned away, as are members of the opposing party who are in the majority on committees of jurisdiction and could threaten subpoenas or withhold agency funding. But members in the minority from a different party than the President face the longest odds. The Executive Branch also may have legitimate concerns with members accessing certain facilities at will.²⁴⁰

Individual members have statutory rights to access certain facilities. Since 2019, Congress has passed legislation providing that appropriated funds may not be used to restrict members of Congress from visiting “any facility operated by or for the Department of Homeland Security used to detain or otherwise house aliens.”²⁴¹ The law states that agency officials may not prevent members from entering “for the purpose of conducting oversight” or “require a Member of Congress to provide prior notice of the intent to enter a facility.”²⁴² Despite the Executive Branch’s compliance with this law for years, starting in June 2025 the Trump administration imposed a seven-day advance notice requirement and claimed that certain detention facilities were not in fact detention facilities.²⁴³ Experts quickly concluded that the guidelines violated the law.²⁴⁴ Minority members brought public pressure to bear, including by sending letters objecting to the practice,²⁴⁵ engaging in public protests,²⁴⁶ posing questions at agency press conferences,²⁴⁷ and insisting on continued access even after being indicted.²⁴⁸ When the administration continued to refuse access, a dozen minority members challenged the administration’s actions in court, where it remains pending.²⁴⁹

4. Right to Receive Congressionally Mandated Information

Over many years, Congress has passed numerous laws requiring the submission of information in thousands of reports to Congress.²⁵⁰ These include reports from entities within the Legislative Branch itself, such as GAO and the Congressional Budget Office, as well as from the Judicial Branch, president, Executive Branch agencies, independent commissions, and federally chartered private corporations.²⁵¹ Minority members can use information in these reports to question administration policies, fact-check assertions, and support additional inquiries. For example, the State Department is required to issue a report on global terrorism every year.²⁵² In 2004, in the wake of the September 11, 2001, attacks and wars in Afghanistan and Iraq, President George W. Bush’s administration issued a report boasting of a decline in worldwide terrorism in 2003.²⁵³ Deputy Secretary of State Richard Armitage cited this news as “clear evidence that we are prevailing in the fight.”²⁵⁴ However, Representative Waxman, then Ranking Member of the House Oversight Committee, conducted a comprehensive comparison of instances listed in the report with public reporting of terrorist attacks and discovered the numbers were wrong. He sent a letter to Secretary of State Colin Powell objecting to manipulation of the data and reporting that the number of significant terrorist attacks had increased by more than 35% since 2001.²⁵⁵ Faced with these facts, Secretary Powell publicly acknowledged this “big mistake”²⁵⁶ and issued a revised report.²⁵⁷

A challenge for the minority is how to respond when the Executive Branch flouts the law and declines to produce information required by statute. Most reporting provisions do not include enforcement mechanisms but instead rely on Congress’s power to call hearings with agency officials, issue subpoenas, withhold future funding, or take other measures.²⁵⁸ When the majority declines to exercise these tools, the minority can marshal public opinion and, even if they may lack standing themselves, encourage other injured parties to seek judicial enforcement of the statute. For example, a law first passed in a one-year appropriations bill and later made permanent requires OMB to create a public website to report on the administration’s apportionments of funds appropriated by Congress and to notify the House and Senate Committees on Appropriations and Budget in certain circumstances.²⁵⁹ As Professor Eloise Pasachoff has noted, until this provision was passed, there was no easy way for Congress or the public to know “if presidents were imposing troublingly unrelated restrictions on agencies through apportionment[.]”²⁶⁰ When President Trump assumed office in 2025, OMB Director Russell Vought shut down this Public Apportionments Database, claiming the information was pre-decisional and that its release could endanger national security.²⁶¹ The Ranking Members of the House and Senate Appropriations Committees, Representative Rosa DeLauro (D-Conn.) and Senator Patty Murray (D-Wash.), objected by issuing public statements²⁶² and even posted a version of Director Vought’s letter with redline corrections.²⁶³ GAO also condemned Director Vought’s actions and warned of the negative implications for “congressional oversight, specifically with regard to Congress’s power of the purse.”²⁶⁴ Finally, when good government groups brought suit in district court and won in an unusually direct ruling, the website was restored.²⁶⁵

5. Rights Available to the General Public

If unsuccessful in invoking information-gathering rules or statutes specific to members of Congress, minority members may turn to rights available to the general public to obtain specific information. For example, like anyone, members may request records from agencies under FOIA and initiate suits under the law if their requests are denied.²⁶⁶ Members may be hesitant, however, because of the possible perception that doing so could undermine their claims of individual constitutional authority and normalize their treatment by the Executive and Judicial Branches as no more deserving of information than the public. Yet many are increasingly doing so.²⁶⁷

Members of Congress may also utilize other statutes, such as the Privacy Act, which authorizes members of the public to obtain information about themselves in systems of records maintained by agencies.²⁶⁸ Some members of Congress not only have filed their own requests, but have launched campaigns to encourage their constituents to do the same. For example, in response to reports that DOGE was collecting sensitive information about American citizens from agencies across the government,²⁶⁹ Representative Jamie Raskin (D-Md.), the Ranking Member of the House Judiciary Committee, demanded all records about himself in DOGE’s possession and urged all Americans to seek their own records as well.²⁷⁰

The two most significant challenges to this course of action are the Trump administration’s willingness to litigate to withhold information and its staff firings at public records offices. The administration went to court to prevent DOGE from complying with FOIA, for example, and the Supreme Court granted an emergency request to vacate a D.C. Circuit judgment and stay a district court discovery order in the case.²⁷¹ The administration also reportedly moved to “gut” offices that handle records requests and terminated FOIA staff who released information that contradicted administration positions.²⁷²

C. More General Rules as Levers for Congress’s Investigative Function

Apart from rules and statutes specific to the rights of members to gather information, members can try to use more general parliamentary rules to pursue investigative ends. Whether these tactics are effective may depend on how well they are designed to achieve a member’s underlying objectives. If members have enough support, they may be able to halt a measure entirely. They also may be able to delay action, force the majority to go through more time-consuming procedures, and temporarily mitigate potentially harmful effects. In addition to serving as acts of protest to gain public backing and impose political costs on the majority, these tactics can be used to extract concessions in exchange for commitments to withdraw objections or refrain from objecting in the future. They also can create incentives for the majority to support minority information requests and for the Executive Branch to disclose requested information. Although there are limitless combinations of procedural tactics members can employ, I provide a few illustrative examples below.

1. Unanimous Consent, Senate Holds, and House Suspension Calendar

Much of the day-to-day work of Congress relies on the adoption of routine motions to waive or suspend rules that otherwise require more time-consuming procedures. Perhaps the most common is a motion for unanimous consent (“UC”), which helps speed consideration of matters that are not in dispute.²⁷³ UC motions, which are used on the floor and in committees, require the agreement of all members.²⁷⁴ Any minority member can object to UC motions as part of broader efforts to fulfill investigative objectives. For example, individual senators have blocked UC motions for legislation,²⁷⁵ resolutions,²⁷⁶ and nominees.²⁷⁷ Senators have also objected to UC motions to waive the requirement to read aloud entire measures under consideration. Senator Chuck Schumer (D-N.Y.) did this to protest President Trump’s One Big Beautiful Bill, eating up sixteen hours of floor time,²⁷⁸ and Senator Ron Johnson (R-Wis.) forced a full reading of President Biden’s COVID response legislation.²⁷⁹ A similar tactic was used in 2009 when the minority on the House Energy and Commerce Committee objected to a UC motion to waive the reading of an amendment to a lengthy energy and climate bill.²⁸⁰ Anticipating this objection, the majority secured the services of a professional speed reader, resulting in a good-natured withdrawal of the objection.²⁸¹

In the Senate, an offshoot of the UC process is the informal practice of placing “holds” on bills, nominees, and other matters. The purpose of a hold is to signal that a senator would object if a UC motion were brought to the floor, where there is seldom enough time for the Senate to debate and vote on every measure.²⁸² Senators of both parties have utilized holds, including Senator Tommy Tuberville (R-Ala.), who placed holds on UC motions for military nominees to protest the Pentagon’s abortion policy,²⁸³ and Senator Brian Schatz (D-Haw.), who used this tactic to block State Department nominees in response to President Trump’s decision to dismantle USAID.²⁸⁴

As discussed in more detail in Part V.D, these tactics may be most effective when linked to specific investigative demands. For example, senators could place holds on individual nominees or classes of nominees while indicating that they would lift their holds if demands for documents or testimony are met. Senator Grassley used this tactic in 2013 when he threatened to delay President Obama’s nominee to be the director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) until the Justice Department provided access to 1,200 documents regarding its agreement to drop a False Claims Act case against St. Paul, Minnesota, allegedly in exchange for dropping a separate case before the Supreme Court.²⁸⁵ In 2023, Senator Rand Paul (R-Ky.) agreed to drop his hold on State Department nominees after the agency produced documents regarding the pandemic.²⁸⁶

In the House, apart from UC motions, a significant amount of business is conducted through the suspension calendar process, which requires a two-thirds vote to pass a measure under expedited floor consideration.²⁸⁷ The suspension calendar may be used for matters as routine as naming post offices or as significant as passing continuing resolutions.²⁸⁸ House Speaker Mike Johnson (R-La.) relied on this tool to pass the 2024 defense authorization bill.²⁸⁹ Any group of members can block suspension calendar proceedings if they can muster more than one-third of voting House members, and they can try to extract concessions in the process. For example, in 2024, majority members angered at Speaker Johnson’s collaboration with Democrats to pass budget legislation began defeating multiple unrelated suspension measures—demanding that he work with them to lower topline spending and add border-related measures.²⁹⁰ Members of the minority have also defeated major suspension bills.²⁹¹

There may be political risks to employing such tactics. For example, the majority could seek to mobilize public support against minority actions they describe as dilatory.²⁹² One way the minority could mitigate such risks is to link the deployment of this tactic to concrete and reasonable demands, as Senator Paul did with his demands for pandemic documents from the State Department,²⁹³ as well as asking for hearings on specific topics, testimony from particular witnesses, or subpoenas for documents the majority has declined to seek.

2. Senate Filibuster

Defenders of the Senate filibuster often invoke its constitutional underpinnings, but nothing in the Constitution requires it. It is a creation of the Senate’s unicameral rulemaking authority.²⁹⁴ Former President Barack Obama highlighted the filibuster’s past uses to advance racist agendas, calling it a “Jim Crow relic,”²⁹⁵ and other commentators have noted its troubling implications for democracy.²⁹⁶ Yet scholars have documented its increased use by minority parties and its increasing curtailment by majority parties.²⁹⁷ Its evolution has seen seemingly contradictory trends—becoming easier to invoke procedurally while applying to a narrower scope of measures.²⁹⁸ Despite these criticisms and its recent changes, the filibuster remains one of the most significant tools for the minority to force negotiations with the majority party.²⁹⁹

Under Senate rules, a bill requires a majority to pass, but since there is a right to unlimited debate, senators may delay an eventual vote on a bill indefinitely.³⁰⁰ Although senators used to be required to speak on the Senate floor to maintain a filibuster, today they may indicate their intent to filibuster without engaging in debate.³⁰¹ Before the Senate can take a final vote, there must be a threshold vote to end debate.³⁰² To initiate this vote, the majority leader may seek cloture, which is a cumbersome process that requires a vote of sixty senators.³⁰³

When Senator Cory Booker set the record for the longest speech on the Senate floor on April 1, 2025, it technically may not have been a filibuster because it occurred after a cloture vote.³⁰⁴ His action did not appear intended to extract specific concessions, but rather to mobilize public opinion against perceived abuses by the Trump administration, energize his party, and convert those efforts into electoral benefits.³⁰⁵ House Minority Leader Hakeem Jeffries (D-N.Y.) may have had similar objectives in mind when he later broke the record for the longest House speech by taking advantage of the so-called “magic minute,” an informal custom that allows House leaders to speak for an unlimited amount of time.³⁰⁶

There can be several challenges with using the filibuster. One is that minority members may not hold together. On March 12, 2025, Senate Democrats declared that they planned to filibuster a continuing resolution to fund government operations, and Minority Leader Chuck Schumer proclaimed on the Senate floor, “Our caucus is unified.”³⁰⁷ The next day, however, Senator Schumer and other Democratic senators reversed course because they were concerned about damage the Trump administration might cause during a government shutdown.³⁰⁸ However, by waiting to announce his reversal until House Democrats had already voted, Senator Schumer generated a “torrent of frustration and anger.”³⁰⁹ A more extended version of this pattern unfolded several months later when Democratic senators announced again that they would filibuster funding legislation they opposed.³¹⁰ This time, they had specific and clear demands, including extending subsidies under the Affordable Care Act (“ACA”) that were about to expire and which some Republican members supported.³¹¹ This more coordinated effort may have contributed to public opinion shifting to their side.³¹² However, just as President Trump’s polling numbers sank to all-time lows and November off-year elections buoyed Democratic leverage, a small group of minority senators abandoned the effort, resulting in bitter criticism.³¹³ Nevertheless, by holding firm in the longest government shutdown on record,³¹⁴ Democrats raised the profile of the ACA subsidy issue and laid the groundwork for a successful effort in the House to pass legislation through a discharge petition with the support of a small group of Republicans willing to defy their leadership.³¹⁵

Another challenge is that the filibuster is not available for all matters. As an example of how the application of the filibuster has narrowed over time, it no longer applies when the Senate considers Executive and Judicial Branch nominees.³¹⁶ It also does not apply to budget reconciliation measures under the Congressional Budget and Impoundment Control Act.³¹⁷ Under that process, legislation that seeks to align federal spending and revenue laws with levels adopted in a budget resolution requires only a majority vote to pass the Senate.³¹⁸ Senate Democrats used this process in 2021 to pass President Biden’s bipartisan infrastructure package,³¹⁹ and Senate Republicans used it in 2025 to pass President Trump’s $3.4 trillion One Big Beautiful Bill Act.³²⁰ On the latter bill, Senate Republicans were heavily criticized for skirting filibuster and reconciliation rules when they adopted a “current policy” baseline that disregarded trillions of dollars in deficits by adopting the assumption that expiring tax cuts extended indefinitely.³²¹ They created a similarly questionable exception to the filibuster in May 2025 when they struck down the previous approval by the Environmental Protection Agency (“EPA”) of California’s plan to phase out gasoline powered cars.³²² Although the Congressional Review Act allows Congress to reject agency rules with a simple majority vote, GAO found that the approval of California’s plan was not a “rule” under the Act, so overturning it should have required 60 votes—a conclusion the Senate Parliamentarian supported.³²³

The latest change in filibuster rules came on September 11, 2025, when Republican Majority Leader John Thune (R-S.D.) invoked the so-called “nuclear option” to amend post-cloture debate procedures to allow confirmations of sub-Cabinet level nominees en bloc rather than through the more time-consuming process of debating and voting on each candidate individually.³²⁴ Republicans argued that Democrats were engaged in unprecedented obstruction by forcing cloture votes and full debates for even routine candidates, while Democrats argued that holding up nominees was one of the few ways they could prompt negotiations over President Trump’s withholding of congressionally appropriated funds.³²⁵ President Trump scuttled those negotiations in a social media post calling Democratic demands “political extortion” and telling Minority Leader Schumer to “GO TO HELL!”³²⁶ Senator Thune abandoned negotiations and quickly confirmed 107 nominees with simple majorities in two subsequent votes.³²⁷ President Trump later began demanding that Majority Leader Thune eliminate the filibuster altogether, although his proposal has not been fully embraced to date.³²⁸ These actions highlight one of the most significant challenges with the robust exercise of minority rights: the majority can change the rules.

3. Motion to Adjourn

Any member may move to adjourn proceedings in committees or in either house.³²⁹ Because this motion has a constitutional foundation, it generally takes precedence over other parliamentary motions and must be voted on immediately without debate or other intervening business.³³⁰ There are some restrictions on when a motion to adjourn may be offered: for example, it is not in order during an ongoing vote.³³¹ Given the privileged nature of the motion and its requirement for an immediate response, minority members can use it to halt ongoing proceedings if they can garner more votes than the majority.

One practical reason this tactic is sometimes successful is because during an average legislative day, members may be scattered across the Capitol, shuttling between simultaneous committee hearings and markups, intervening floor votes, constituent meetings, press conferences, and fundraisers. An observer at a typical congressional hearing may see members coming and going from the room to give statements or question witnesses, and it is not uncommon to see only a handful of members at an otherwise empty dais. Committee chairs generally have authority to “roll” votes to a set time so all committee members have notice about when they will happen,³³² but because of its status as a privileged motion, a motion to adjourn may not be rolled to a later time.³³³ A motion to adjourn made without warning can pose serious challenges for the majority if minority members are organized to show up at once. In 2019, for example, Republicans successfully adjourned a House Natural Resources Committee subcommittee hearing on climate change.³³⁴

As an investigative tactic, members of the minority could threaten to force adjournments unless the majority meets specific and clear demands for additional documents or testimony from other witnesses, and they could withdraw these motions if they obtain concessions. The possibility of repeated motions to adjourn across multiple proceedings could provide additional leverage for negotiations with the majority. However, there are several potential downsides to using this tactic. Minority members may have invited their own witnesses to testify, or they may want to take advantage of an opportunity to question Executive Branch witnesses called by the majority, especially if those officials have been unresponsive to requests for information. There also may be a political concern with blowback. For example, the majority could notice the same hearing for a week later, criticize the minority for wasting time and taxpayer resources, or frame the minority’s action as obstructive or an attempt to conceal facts.³³⁵

4. Motion to Amend Legislation

When considering legislation, members who support a bill use the amendment process in traditional ways to improve legislative language, refine its application, or clarify congressional intent. Conversely, when members oppose a bill, they use amendments to fundamentally alter its provisions and sometimes offer “poison pills” to try to defeat it.³³⁶ Minority members also may use amendments to force the majority to take politically difficult votes or call attention to their own priorities through messaging amendments. For example, during a markup of a majority budget bill in the House Judiciary Committee in 2025, the minority offered thirty amendments highlighting a wide range of perceived Trump administration abuses.³³⁷ Many were clearly intended to place majority members in tough political positions.³³⁸ In one case, Chairman Jim Jordan (R-Ohio) offered his own amendment to preempt a minority amendment that would have garnered bipartisan support.³³⁹ Chairman Jordan’s amendment removed a provision that had been included in the majority’s bill just days earlier.³⁴⁰

Minority members can also use amendments for investigative purposes. For example, amendments can require studies or reports from GAO, agencies, inspectors general, and others.³⁴¹ These amendments are often viewed as more benign and more likely to pass because they require no changes to existing policy.³⁴² In addition, they are sometimes used as fallbacks when negotiations stall and deals cannot be reached but members still want to demonstrate progress.³⁴³ Minority members can also add amendments to appropriations bills to prohibit restrictions on congressional oversight activities and to create incentives for compliance by agencies that defy demands for information.³⁴⁴

There are differences between Senate and House rules regarding amendments. There is generally no restriction on senators offering amendments on the floor and, unlike in the House, amendments generally need not be germane to underlying matters.³⁴⁵ As a result, the Senate typically decides the number of amendments to be considered through negotiation and agreement.³⁴⁶ In contrast, the House Rules Committee strictly controls the parameters that govern consideration of legislation on the floor and typically limits the number and content of amendments.³⁴⁷ Because the Rules Committee is stacked with far more majority members than minority members, it has been allowing decreasing numbers of minority amendments to be considered on the floor over the past several decades.³⁴⁸ Taking this trend to new levels, in 2025, the Republican House majority broke the record for the most “closed rules” ever, meaning the House considered more bills with no amendments allowed on the floor than in any previous year in history.³⁴⁹

5. Motion to Recommit

Under House rules, the minority party may offer a motion to recommit (“MTR”) prior to final passage on the floor. An MTR “recommits” a measure back to the committee of jurisdiction.³⁵⁰ The motion in its traditional form was accompanied by instructions for the committee to take certain action.³⁵¹ As with any minority motions, MTRs rarely pass, but the minority can craft instructions that might compel enough majority members to vote in favor of the motion and delay or defeat the underlying bill. In 2019, the Republican minority successfully used an MTR to defeat legislation that would have required gun background checks by offering an MTR instructing the Judiciary Committee to require that Immigration and Customs Enforcement be notified when undocumented immigrants try to buy firearms.³⁵² The motion garnered support from twenty-six Democrats in swing districts and caused greater fissures among majority Democrats.³⁵³

The minority also may use MTRs to highlight when the majority has not taken sufficient investigative steps. For example, when Republicans on the House Oversight Committee were investigating whether ATF knowingly allowed firearms to “walk” into Mexico as part of Operation Fast and Furious, Democrats in the minority were initially supportive of the investigation, but when the majority targeted Attorney General Eric Holder without evidence that he was aware of the abuses, Democrats called for the majority to obtain testimony from the ATF Director, who had yet to testify at a public hearing.³⁵⁴ When the majority refused and moved to hold the Attorney General in contempt on the House floor, Representative John Dingell—the “dean” of the House (its longest serving member), a renowned congressional investigator, and a member of the National Rifle Association³⁵⁵—offered an MTR to refer the resolution back to the Committee to conduct the investigation that had not yet been done.³⁵⁶ Although the motion failed, it contributed to public opinion coalescing against the majority’s attack on Attorney General Holder.³⁵⁷ When Democrats were in the majority in the House in 2021, they amended House rules to eliminate the ability of minority members to include specific instructions with their MTRs that historically gave them their political teeth.³⁵⁸ Nevertheless, minority members have continued to use MTRs and, in some cases, have been successful.³⁵⁹

Unlike in the House, senators have authority to offer substantive amendments on the floor and do not have the equivalent of the House Rules Committee to act as gatekeeper. As a result, although they have the right to offer MTRs, they rarely do.³⁶⁰ One occasion when senators offer MTRs is during the budget reconciliation process because the rules governing which amendments are in order are much stricter.³⁶¹ MTRs allow senators to make their rhetorical points in MTR instructions without running afoul of reconciliation amendment rules.³⁶²

6. House Discharge Petition

In the House, any member may file a petition to require a floor vote on a measure that a committee of jurisdiction has declined to take up for more than thirty legislative days.³⁶³ Because a majority of House members must sign a discharge petition to give it effect, the minority can succeed only if some majority members support the effort. Even if there is little likelihood that a minority discharge petition will pass, the existence of the petition can be used to pressure sympathetic or vulnerable majority members to join.³⁶⁴ For these reasons, the majority disfavors minority discharge petitions and, in some cases, has chastised majority members for joining them.³⁶⁵ In addition, scholars point out that a rule change in 1993 that makes the identities of signatories public as they join discharge petitions may decrease their appetite to do so and, in turn, the likelihood of obtaining 218 signatures.³⁶⁶ The majority party also has used procedural maneuvers to prevent bipartisan discharge petitions from coming to the floor despite their support. For example, when Representatives Brittany Petterson (D-Colo.) and Anna Paulina Luna (R-Fla.) obtained the requisite number of signatures on a discharge petition to require a floor vote on a measure to allow proxy voting for new parent members, the House adopted a subsequent rule tabling the underlying matter, meaning that some Republican members who signed the discharge petition also voted for the rule to table it.³⁶⁷

The minority can also use discharge petitions as part of an investigative strategy to seek documents or testimony. The 2025 effort to obtain the full Justice Department file on Jeffrey Epstein illustrates the potential benefits and challenges with this approach. Based on President Trump’s campaign promises to release the Epstein files if elected, members across the political spectrum were dismayed when Attorney General Pam Bondi and FBI Director Kash Patel began redacting and withholding information from Congress.³⁶⁸ A bipartisan bill was introduced to require the Justice Department to produce the information within thirty days of the bill’s enactment, but the Judiciary Committee did not consider it.³⁶⁹ Representatives Thomas Massie (R-Ky.) and Ro Khanna (D-Cal.) then introduced “perhaps the most famous discharge petition in American history.”³⁷⁰ Although only a handful of Republicans initially joined, several special elections to fill vacant seats resulted in Democratic victories that helped the petition obtain the 218 signatures needed to go into effect, just as the government shutdown ended.³⁷¹ At the same time, Epstein’s estate released a trove of texts explicitly asserting President Trump’s knowledge of Epstein’s activities, helping the petition’s supporters garner enough political support to prevent Republican House leaders from tabling the motion in the Rules Committee, as they had done with other discharge petitions.³⁷² Although President Trump tried unsuccessfully to prevent members from joining the petition, he abruptly reversed course after reports that up to one hundred Republican members might vote for the measure, instead posting on social media that they should support it.³⁷³ The legislation overwhelmingly passed the House and Senate in quick succession, and the President signed it.³⁷⁴

The Epstein discharge petition was extraordinary because of the confluence of various political and other events that resulted in overwhelming support for the underlying legislation, including among members of the House and Senate majorities. This is certainly not the case for all discharge petitions. In addition, a significant challenge for discharge petitions normally is that the underlying legislation that is being discharged from committee is subject to the requirements of bicameralism and presentment. In other words, even if supporters succeed in one house, there is no guarantee they will succeed in the other or that the President will sign the legislation rather than veto it. Moreover, if the underlying legislation does not create a specific enforcement mechanism, the House or Senate may have to vote again to compel compliance. For discharge petitions relating specifically to investigative demands, however, there is an alternative: discharging a unicameral resolution authorizing contempt proceedings. For example, the House Oversight Committee issued a subpoena to Attorney General Bondi demanding the complete Epstein file, so a resolution could be introduced in the House concluding that she has failed to comply, finding her in contempt of the House, and authorizing criminal and civil action.³⁷⁵ If the Oversight Committee declined to take up that contempt resolution, a discharge petition could be introduced to bring the resolution to the floor for a vote, and once passed, it would not need approval from the Senate or President Trump to go into effect.³⁷⁶

* * *

Apart from a handful of so-called hard powers minority members may use to demand and obtain specific information, such as inspecting immigration facilities, there are far more rules that allow minority members to raise their investigative demands and slow legislative action as leverage. However, these ultimately rely on convincing at least some majority members to join their ranks. For example, the Senate has a “two-hour rule” that allows any senator to object to committee meetings continuing more than two hours after the full Senate convenes, with certain exceptions.³⁷⁷ Members in both houses also can move to postpone hearings to highlight minority concerns.³⁷⁸ Even further along this spectrum of hard to soft powers are tactics the minority can employ that are not referenced in rules or statutes, which I turn to next.

IV. Minority Investigative Powers Beyond the Rules

Minority members can use many tools that do not rely on congressional rules or federal statutes specific to investigative rights and do not necessarily depend on leveraging other parliamentary tactics. Below I discuss several non-rule-based methods for members to collect information and communicate with the public about their findings.

A. Obtaining Information from Alternative Sources

Minority members may seek information from any sources that are willing to provide it voluntarily, without the need for subpoenas. Obtaining an initial set of information can often lead to additional investigative avenues to pursue, create pressure on the majority to take its own investigative steps, and cause the Executive Branch and other targets to respond with more information.

1. Non-Public Sources

By virtue of their positions, members of Congress may be able to obtain a significant amount of non-public information to serve their investigative goals. These sources may be parties who have been wronged in some way and are willing to provide information to members who will act on their behalf. After the Iraq War, for example, the Bush administration began using Iraqi funds to pay Halliburton, Vice President Dick Cheney’s former company, to import gasoline into Iraq at exorbitantly high prices.³⁷⁹ Iraq’s new leaders could not fathom this waste of money and, to highlight their concerns, they provided Representative Henry Waxman, then Ranking Member of the House Oversight Committee, with their own receipts showing far lower prices they had been paying to import gasoline.³⁸⁰

Minority members can also consult experts who are willing to speak with them on topics in their field. In the case of Iraqi gasoline imports, Representative Waxman consulted experts who analyzed Halliburton’s prices and confirmed that they were excessive based on industry standards.³⁸¹ Representative Waxman also accessed government databases to review Halliburton’s contracts with the administration and worked with CRS to survey subscription-based industry reports.³⁸² Representatives Waxman and Dingell, then Ranking Member of the House Energy and Commerce Committee, compiled this information in a letter to OMB that received major press attention.³⁸³ None of these actions involved the exercise of minority rights referenced in statutes or House rules, yet they forced the administration to respond by disclosing information³⁸⁴ and terminating Halliburton’s gasoline imports.³⁸⁵ This snowballing effect continued as Representatives Waxman and Dingell used information they obtained to refer the case to the Pentagon Inspector General,³⁸⁶ after which auditors identified $61 million in overcharges and made their own referral for criminal investigation.³⁸⁷ Representative Waxman then began obtaining leaked documents from confidential sources, including an internal Pentagon audit showing overcharges by Halliburton and efforts to conceal them from Congress.³⁸⁸ He then used this information to call on the majority to hold hearings and subpoena additional records.³⁸⁹ Representative Waxman continued to press this investigation for years, including through bicameral letters and reports.³⁹⁰

Minority members can also do their own surveys to collect data and report results.³⁹¹ In addition, they can obtain information from constituents, communities, and local and state governmental entities that share their aims. For example, minority members investigating dangerously high lead levels in drinking water in Flint, Michigan spoke with families and local officials in the region who reported that Governor Rick Snyder (R-Mich.) and his administration failed to protect or inform them in a timely manner of the dangers they faced.³⁹² Minority members then used this information to make a successful case that the majority should call the governor to testify before the House Oversight Committee, where he was pressed to resign.³⁹³

2. Whistleblowers

Whistleblowers are important sources from whom minority members can obtain information that they otherwise may not be able to compel through subpoenas. I use the term whistleblowers in its broadest sense to refer to anyone willing to provide information about potential waste, fraud, or abuse. Congress has enacted limited legal protections for certain whistleblowers,³⁹⁴ but the universe of people who provide information is much broader than those who qualify for protection under statute.³⁹⁵ They may include civil servants and political appointees, contractors and grantees, agency auditors and departmental investigators, criminal prosecutors and civil enforcement attorneys, corporate executives and nonprofit employees, and members of the press.

Whistleblowers’ cooperation may change over time depending on risks they face and their level of confidence in members with whom they are working.³⁹⁶ Although some may be prepared to testify openly, others may prefer to remain anonymous, not agreeing to allow any information they provide to be used publicly, but providing it as background to generate leads.³⁹⁷ Some might still work in their offices and may continue providing information in real time.³⁹⁸ They can give firsthand eyewitness accounts, produce internal documents, emails, and other records, and provide critical background on the identities of other players and the internal structures of entities under investigation.³⁹⁹ Some who start out anonymously later may decide to come out publicly, or they may agree to let members use anonymized versions of their accounts or documents stripped of identifying information.⁴⁰⁰ They can also expose illegal retaliation and other unlawful conduct.⁴⁰¹

Minority members were able to utilize information from multiple whistleblowers who came forward during the Trump administration. To highlight a few: Ranking Member Sheldon Whitehouse (D-R.I.) and others on the Senate Committee on Environment and Public Works released a letter to the EPA with whistleblower documents showing more than 400 grants targeted for elimination;⁴⁰² House Oversight Committee Ranking Member Gerald Connolly (D-Va.) demanded an inspector general investigation after a whistleblower reported that DOGE was collecting sensitive data about Social Security beneficiaries;⁴⁰³ and Senate Judiciary Committee Ranking Member Dick Durbin (D-Ill.) mobilized opposition to Emil Bove’s judicial nomination after a whistleblower disclosed his efforts to mislead judges and defy court orders.⁴⁰⁴ The biggest challenge for whistleblowers, apart from qualifying for protection under federal law, is that the Trump administration has been engaged in a “war on whistleblowers,” as Nancy Modesitt described it in 2021.⁴⁰⁵ This campaign involved public firings, criminal investigations, retaliation through the press, and a reduction in resources for whistleblower protection.⁴⁰⁶

3. Public Sources

Minority members can take advantage of a vast amount of publicly available information to serve their investigative aims. This information can include public court filings with evidence submitted as exhibits and deposition transcripts,⁴⁰⁷ required disclosures for public officials,⁴⁰⁸ public databases of detailed government information on numerous topics,⁴⁰⁹ and media reports.⁴¹⁰ It can also include a huge number of reports previously issued by GAO, CRS, inspectors general, and agency auditors.⁴¹¹ In the Iraq investigation discussed above, Ranking Member Waxman scoured foreign press accounts about regional oil interests and came upon a report suggesting that a Halliburton subcontractor had ties to Kuwaiti officials.⁴¹² Representative Waxman had his staff research corporate records and contact company officials before including this information in a letter to National Security Advisor Condoleezza Rice.⁴¹³

Members can also access a trove of information from required disclosures from corporate entities. Senator Elizabeth Warren (D-Mass.) has made this a specialty, mining earnings call transcripts, regulatory filings, executive compensation and bonus plan information, and other public corporate documents to bring attention to perceived abuses and call for action.⁴¹⁴ Similarly, the minority staff on the Senate Permanent Subcommittee on Investigations accessed a wide range of corporate and other data to quantify the preexisting legal and financial exposure that Elon Musk and his network of companies faced before he entered government and began exerting his influence over federal agencies.⁴¹⁵

B. Disseminating Information

1. Minority Fora and Other Events

House and Senate rules do not prevent minority members from holding their own events to gather information and inform the public.⁴¹⁶ Although committee hearings are the official fora for congressional information gathering, another option for the minority is to hold events that have the trappings of hearings without their official imprimatur.⁴¹⁷ Minority panels can showcase information from people who want to tell their stories but have been ignored by the majority, educate constituents about changes to programs that affect them directly, and rally support for the minority’s policy objectives. These events have been held as “roundtable discussions,”⁴¹⁸ member “task forces,”⁴¹⁹ “field hearings,”⁴²⁰ and even a “science fair” in one instance.⁴²¹ Of course, members can always use traditional press conferences to release new investigative information.⁴²²

These fora can be used to highlight the minority’s priorities, as House Democrats did during the government shutdown in 2025 and on the five-year anniversary of the January 6 attacks in 2026.⁴²³ Minority members can also hold bicameral events, although they take more coordination. Representative Jamie Raskin and Senator Adam Schiff (D-Cal.) organized members of both chambers to hear from former Justice Department officials protesting the alleged weaponization of the agency under the Trump administration.⁴²⁴ Given the number of federal employees the administration has terminated, minority members could hold fora on a wide range of additional issues, including the firing of inspectors general in violation of federal law⁴²⁵ or the termination of some of the military’s top leaders and service attorneys.⁴²⁶

Finally, the minority does not have to remain silent if the majority refuses to invite minority witnesses to official hearings. For example, in 2012, Oversight Committee Chairman Issa announced a hearing with an all-male panel of religious leaders to testify about contraception. When Chairman Issa refused Ranking Member Cummings’s request to invite Georgetown Law student Sandra Fluke to testify on behalf of women affected by these policies, Representative Cummings invited Fluke to sit in the audience, released a video of her statement, and then invited her to appear at a minority forum covered by C-SPAN.⁴²⁷ These actions were not based on minority rights specifically referenced in House rules, yet they were effective: Fluke’s story—and the majority’s refusal to hear it—captured the public’s attention so effectively that she was invited to speak at the Democratic National Convention.⁴²⁸

2. Minority Reports and Websites

In addition to holding public events, minority members can disseminate their own reports to reveal evidence they uncover, offer conclusions, and call for additional investigative or legislative steps. These reports can be issued by members’ personal offices or minority committee staff.⁴²⁹ Their format can vary widely, from lengthy reports that take years to compile,⁴³⁰ to shorter “flash reports” that respond rapidly to pending issues,⁴³¹ to one-page fact-sheets that give members information at a glance.⁴³² For many years while he was in the minority, Senator Tom Coburn (R-Okla.) issued annual “wastebook” reports to identify improvident federal spending.⁴³³ Although minority reports are not required to be voted on, they may be included in official committee reports as “minority views” and in official hearing transcripts when submitted for the record.⁴³⁴ Minority reports also can be disseminated through press releases, minority events, or custom websites designed to give the public and press easy access to the information.⁴³⁵

For example, when House Republicans established a select committee to investigate the 2012 Benghazi attacks after seven other committees had already concluded investigations, Majority Leader Kevin McCarthy (R-Cal.) stated that one of their goals was to bring down the poll numbers of then-presidential candidate Hillary Clinton.⁴³⁶ To expose the extent to which the majority was treading old ground, the minority issued a detailed report at the beginning of the investigation “to collect—in one place—as much information as possible regarding questions that have already been asked and answered about the attacks in Benghazi.”⁴³⁷ They also created a compendium of investigative resources, an “asked and answered” database responding to more than 150 questions about the attacks, and an interactive website that allowed users to see this evidence with a few clicks, all of which generated press that contributed to the public’s understanding of the issue.⁴³⁸ Although the majority later called Secretary Clinton to testify, they admitted that their investigation yielded little new information.⁴³⁹ Polling indicated that a majority of Americans, even as they questioned some of Secretary Clinton’s actions, believed the majority’s investigation was “a politically motivated attempt to damage the former secretary of state rather than an effort to raise legitimate concerns.”⁴⁴⁰

3. Amicus Briefs

There are differing opinions about the extent to which amicus briefs impact judicial decision-making, but they can provide background on legislative history, reduce errors based on partial information, and explain ramifications for stakeholders who may not be parties to the case.⁴⁴¹ For minority members, filing amicus briefs can provide opportunities to counter policies they oppose and promote policies they support. Amicus briefs often explicitly highlight the direct experience of minority members in crafting legislation at issue, as 203 members did when they filed a brief opposing the Trump administration’s effort to shutter the CFPB in 2025.⁴⁴² Courts often express deference to members’ experience, as the district court did in the CFPB case.⁴⁴³

Amicus briefs also can give courts the particular perspective of the minority on investigative matters. For example, when Chairman Issa filed a civil suit to compel Attorney General Eric Holder to produce documents relating to Operation Fast and Furious, members of the minority filed an amicus brief arguing that they strongly supported the institutional interests of Congress, but they highlighted for the court additional investigative steps the majority should have taken before seeking judicial intervention.⁴⁴⁴ Amicus briefs also give the minority opportunities to show the public, supporters, and constituents that they are fighting for them rather than quietly accepting their minority status.⁴⁴⁵

One challenge with filing amicus briefs as the minority is securing counsel. House and Senate Legal Counsel represent their respective bodies in litigation, which includes bringing suits on behalf of committees and leadership and defending against cases filed against them.⁴⁴⁶ Unless authorized by the full House or Senate, they generally do not draft amicus briefs for members. Instead, members rely on assistance by outside experts, including law firms that offer pro bono services,⁴⁴⁷ nonprofit organizations,⁴⁴⁸ and groups that focus on specific areas of law.⁴⁴⁹ Another challenge arises when both majority and minority members file dueling briefs on opposite sides of an issue as they compete to be viewed as the authoritative voice of Congress.⁴⁵⁰

4. Protests

Finally, minority members can engage in acts of public protest inside or outside of Congress.⁴⁵¹ For example, in 2013, well before Senator Booker set his record for the longest Senate speech, Senator Ted Cruz (R-Tex.) held the floor for more than twenty-one hours to protest the ACA.⁴⁵² More recently, Democrats held the Senate floor overnight to protest President Trump’s nominee for OMB Director, Russell Vought.⁴⁵³ And, as mentioned above, Democrats boycotted a Senate Judiciary Committee business meeting when Chairman Grassley refused to follow committee rules.⁴⁵⁴ Off the Hill, minority members have protested at federal agencies, including at the Department of Education,⁴⁵⁵ EPA,⁴⁵⁶ USAID,⁴⁵⁷ and CFPB.⁴⁵⁸ Members have also engaged in civil disobedience. In 2016, for example, Representative John Lewis (D-Ga.) and other House Democrats participated in a sit-in on the floor to demand a vote on gun control legislation after the Orlando nightclub shooting.⁴⁵⁹ Similarly, multiple members were arrested at demonstrations after the Supreme Court overturned Roe v. Wade.⁴⁶⁰

V. Proposals for the Minority in Unified Party Government

The review above demonstrates that although minority members have more limited powers than the majority—they cannot call official hearings, mark-up legislation, or issue unilateral subpoenas—they have options. Instead of limiting themselves to a binary choice between complete obstruction and total passivity, the minority could engage more selectively and strategically in executing their investigative powers. In addition, the minority could consider bolder changes to their approach, including moving beyond the organizational structures of Congress and beyond the majority-controlled proceedings in Washington, D.C. Based on this review, I offer several proposals for minorities to help achieve their objectives while enhancing Congress’s overall effectiveness as a check on the Executive Branch.

A. Beyond All-or-Nothing

It has become axiomatic, at least in modern times, that Congress is more likely to vigorously investigate the actions of the Executive Branch when it is led by a president of the opposing political party.⁴⁶¹ When members of the other party control one or both houses of Congress, they may try to increase their leverage on policy matters by demonstrating waste, fraud, or abuse at executive agencies, and they may seek to diminish the political standing of the executive while increasing their own party’s electoral prospects in the process.⁴⁶² With unified party government, however, incentives for conducting oversight of the Executive Branch are much weaker, and the majority may see less reward in exposing malfeasance that undermines support for its agenda.⁴⁶³ Instead, majority members may want to take full advantage of their position by passing their most aggressive policy measures with the slimmest margins, and they may try to minimize minority participation, input, and power in the process.⁴⁶⁴ Majority members may be more willing to acquiesce in questionable executive actions, and they may have incentives to ignore, sideline, and reduce the ability of the minority to investigate or influence the outcome of debates.

These are the circumstances Democrats found themselves in when they faced unified Republican control during the first hundred days of President Trump’s second term. In response, the two competing approaches Democrats were debating served seemingly distinct goals: (1) maximum obstruction to halt or mitigate damage they believed the majority party’s policies and actions would inflict; and (2) maximum passivity to preserve and increase the minority’s electoral prospects in future elections. These goals may seem simplistic, but they illustrate the urgent nature of the minority’s predicament.⁴⁶⁵ Framed this way, however, each proposal appears to favor one goal at the expense of the other. The “shut it down” camp may succeed in temporarily delaying damage the majority’s agenda could cause, but this approach could backfire politically, causing public opinion to turn on the minority and allowing the majority to retain control. On the other hand, the “roll over and play dead” camp could allow majority policies to be implemented more easily, inflicting greater perceived harms to people, programs, and interests valued by the minority, while banking almost completely on the electorate rejecting the majority’s agenda come election day.⁴⁶⁶ Apart from these political considerations, both strategies also could have negative implications for Congress’s Article I responsibilities and the separation of powers. Shutting down Congress so it cannot function risks sidelining the Legislative Branch and giving the Executive Branch free rein to take actions with little oversight or pushback. On the other hand, rolling over obviously means abandoning Congress’s role as an equal branch and allowing the majority to make Congress subservient to the President.

In contrast, the review above indicates that the minority could pursue both goals at the same time and that mitigating harm and enhancing electoral promise do not have to be either-or objectives. The minority could use more of the tools discussed above in strategic ways, in combination or in succession, and with approaches that some majority members may support. They could also bring greater public attention to their efforts by coordinating across multiple committees. In these ways, the minority also could help Congress better serve its institutional separation of powers responsibilities under the Constitution.

To illustrate how this could work, the minority could, for example, launch a coordinated investigation of corruption in the Executive Branch and the President’s inner circle. Political scientists have warned about a startling increase in self-dealing within the Trump administration and have proposed making anti-corruption a key focus for Democrats.⁴⁶⁷ Minority members on multiple committees could put meat on the bones of this effort by gathering evidence about specific instances of abuse in programs in their jurisdictions and utilizing all the tools discussed above to collect information, including from public and non-public sources, leaked information, and firsthand interviews. This information could form the basis for public letters requesting documents and testimony from agency officials and private sector actors, as well as minority requests for the majority to seek documents or invite witnesses on behalf of the committees. Public attention to the minority’s work could lead to whistleblowers providing additional non-public information to the minority, which in turn could support further requests to agencies, private entities, and the majority.

If the majority refuses to consider these requests, the minority could convert them into specific, reasonable, and concrete demands and begin utilizing various tools to increase their leverage with the majority. The minority could move for subpoenas, as several minority members have done, but they could also take steps to press their position incrementally. They could invoke their right to hold minority days of hearings much more frequently than they currently do. They could stop assenting to routine UC motions at hearings or markups and, ramping up further, could begin moving to postpone or even adjourn proceedings. If minority members of one committee reach an impasse with their majority over demands for records or testimony, minorities on other committees could agree to hold a “business-not-as-usual” day and move to adjourn all of their hearings in solidarity. They could introduce freestanding legislation or amendments to bills under committee consideration to require the production of information, and they could introduce discharge petitions to try to force votes on the floor. Minority members could reinforce their position by issuing their own reports and laying out for the press and public new evidence and findings about abuses under investigation. The minority could hold minority fora with experts, workers, victims, and other affected stakeholders, and they could request that GAO conduct investigations and participate in events that highlight their investigative work. Although minority members have taken many of these individual steps and others in isolation,⁴⁶⁸ they could work across committees to enhance coordination, leverage, and effectiveness. To avoid the potential political downsides of appearing obstructive or dilatory, the minority could calibrate their actions at every stage and make clear that they would suspend these practices if progress were made on their demands.

Determining the most effective strategy for a particular investigation is a complex and nuanced undertaking that depends on multiple factors. To strike the right balance, the minority must be discerning in choosing which issues it presses and why. The illustration proposed above—corruption in the Executive Branch—may resonate across a broad spectrum of the public, promote engagement across committees, and be particularly compelling during periods of unified party government when the majority in Congress seems uninterested in holding the Executive Branch to account.⁴⁶⁹ But the minority could focus on other issues that resonate with the public and lend themselves to more readily accessible information. For example, minority members could use their investigative tools to examine the increasing costs of living for their constituents.⁴⁷⁰ They could conduct their own surveys of a wide range of household goods, examine local effects of tariffs on select industries, or focus on specific sectors such as healthcare, education, or housing. There are indications that minority staff on several committees are beginning to do more of this type of work.⁴⁷¹ In addition to expanding these efforts more broadly across additional committees and offices, the minority could combine forces to produce reports that highlight common themes, make parallel findings, and draw wider conclusions. These minority reports could be issued through joint press strategies with simple, compelling, and uniform branding and a staggered schedule to generate maximum impact. Regardless of the topics they choose to investigate, having a more comprehensive understanding of the numerous powers available may assist the minority in developing unique, customized approaches to their investigative objectives.

B. Operationalizing a Proactive Agenda

To move beyond Congress’s siloed organizational structures, members of the minority could implement their own proactive agenda by coordinating resources and staff across Capitol Hill in innovative new ways. Although there are challenges with this approach, the minority could focus resources more intentionally on robust long-term proactive approaches rather than on short-term reactive defensive tasks within the narrow lanes of committee jurisdictions.

To develop an agenda of their own, House and Senate minority party leaders or committee ranking members could convene to develop a list of top priorities to which they, as a party, will devote time and resources. Admittedly, agreeing on these items could be challenging, but engaging in the discussion, as minority members on some individual committees have done, would have its benefits.⁴⁷² These priorities would not be talking points, but action items for proactive work the minority would conduct in coordination across offices and in addition to their defensive obligations. There have been reports that House Minority Leader Jeffries has initiated this type of effort and has begun developing “an initial set of principles based around affordability, health care and ending government corruption.”⁴⁷³

Apart from developing this minority agenda, an equally challenging issue is how to operationalize it. To do this, the minority members of each committee could make the decision to wall off at least some of their staff to deliver work products that relate directly to the minority’s agenda. Spending less time preparing for a majority hearing, for example, and more time preparing for a minority forum may better serve the minority’s objectives. Taking this step can be difficult when the minority already faces such heavy workloads, but cordoning off staff is critical when majority demands are so persistent.⁴⁷⁴ Freeing staff time also could allow greater collaboration among committees, with personal offices and leadership organizations, and across the House and Senate.⁴⁷⁵

Some may ask why the current minority is not using more of the tools described above already, as well as cordoning off staff, combining forces, and developing more proactive work product. Perhaps the most daunting challenge is that Congress is stovepiped by design.⁴⁷⁶ There are 541 senators, representatives, and delegates, dozens of committee and leadership offices, and multiple parallel political organizations, each with its own staff and messaging apparatus.⁴⁷⁷ Although scholars have highlighted the benefits of party cohesion among the minority,⁴⁷⁸ organizing across these disparate offices can be difficult.⁴⁷⁹

The minority also faces disadvantages in resources and communications. For example, regardless of the number of majority and minority members in the House, committee budgets are generally allocated based on a ratio of two to one, meaning the minority has half the budget and staff as the majority.⁴⁸⁰ Given how taxed minority staff are with preparing for and defending against majority actions, redirecting limited resources to minority projects may seem like a heavy lift. Making matters worse, for many years there has been extremely high turnover of experienced congressional staff with knowledge of these procedures.⁴⁸¹ In addition, the majority controls information about scheduling hearings and markups, invites witnesses, brings measures to the floor, and coordinates with an administration of the same party. It is easier for the majority to plan their actions in advance than for the minority to respond when they have been in the dark. This challenge has been aggravated by the Trump administration, which prides itself on “flooding the zone” to fragment opposition.⁴⁸²

In addition to these challenges, some senior ranking members of the minority party may be hesitant to participate in a leadership-driven process they perceive as further surrendering the authority and status they have built over many years to become committee leaders.⁴⁸³ This concern is not baseless, as congressional reform advocates have decried the centralization of power in leadership over the past several decades and have proposed returning some measure of that power to committees and bipartisan factions.⁴⁸⁴ The proposal to better coordinate minority investigative efforts, however, need not be dictated from either chamber’s minority leader. Instead, committee ranking members could lead this effort, and their buy-in and subject matter expertise could make it more effective as a result. They could establish a process with their own information-sharing hub to determine priorities, avoid duplication of effort, and coordinate the timing of work product releases. In any case, overcoming an overly narrow focus on protecting fiefdoms could serve both minority objectives of mitigating harm and enhancing electoral prospects.

Another challenge is that the current majority is curtailing minority rights at a more accelerated pace than at any time in recent memory. As the survey above demonstrates, in 2025 alone, Senate Republicans not only changed the filibuster process to allow en bloc confirmations of nominees, but also skirted filibuster rules when they struck down California’s plan to phase out gasoline powered cars and passed President Trump’s One Big Beautiful Bill. In the House, the majority effectively eliminated resolutions of inquiry, broke the previous record for the most “closed rules” on the House floor, and blocked the minority’s right to move to end President Trump’s tariffs under the fast track procedure set forth in the National Emergencies Act in March, April, and September of 2025,⁴⁸⁵ although efforts to continue to block tariff votes collapsed in 2026 with several Republican defections.⁴⁸⁶ Given the House’s slim margin, the use of discharge petitions has been more successful,⁴⁸⁷ and the favorable Epstein discharge petition prompted other successful efforts, including on legislation to extend ACA subsidies.⁴⁸⁸ However, Speaker Johnson is reportedly considering changes to limit the use of that tool as well.⁴⁸⁹ There are certainly numerous examples of Democrats curtailing minority rights when they were in power.⁴⁹⁰ But the actions of the current majority are creating an increasingly hostile environment for the minority to conduct investigations.

There may be several explanations for this phenomenon. For example, by almost any measure, partisanship has been on the rise,⁴⁹¹ and many potential causes have been suggested.⁴⁹² Political scientist Sarah Binder, in her seminal work on minority rights in Congress, compiled a comprehensive list of amendments that curtailed procedural rights in House and Senate rules from 1789 to 1994.⁴⁹³ Based on her review, she discounted historical theories that explained limitations on minority rights as the result of non-partisan collective institutional concerns, such as increased workload.⁴⁹⁴ She also challenged theories offered prior to 1994 that more frequent turnovers of control would cause both parties to “develop an institutional memory of life in both positions and, by implication, would be more likely to favor a more equitable distribution of procedural rights.”⁴⁹⁵ Instead, she offered a theory of partisan procedural choice in which the allocation of chamber rights is motivated primarily by short-term political advantage.⁴⁹⁶

What has happened since then with respect to minority investigative rights appears to bear this out. Control of the House or Senate has changed thirteen times since 1994, but rather than enhancing minority rights in line with the theory that today’s majority may be tomorrow’s minority, minority rights have been reduced.⁴⁹⁷ As discussed above, since 1994, committees have authorized more of their chairs to issue unilateral subpoenas, a stark change from previous practice in which minority members played more significant roles. Changes to the filibuster show a similar trend despite multiple changes in Senate control. After Democrats removed the filibuster for lower-level nominees in 2013, the subsequent flip in Senate control resulted not in Republicans restoring the filibuster for those nominees, but in diluting it further to exclude Supreme Court nominees in 2017, reduce debate time on nominees from thirty to two hours in 2019, and allow en bloc confirmations in 2025.⁴⁹⁸

Other theories have sought to explain the expansion or contraction of minority rules, but most are limited to intra-chamber dynamics.⁴⁹⁹ Although a full examination of the root causes of these trends is beyond the scope of this Article, it appears that minority rights may be particularly vulnerable when one party controls both chambers, the presidency, and the Supreme Court, not to mention circumstances like the present when six Justices have been appointed by presidents of the same party.⁵⁰⁰ Having control of Congress and the White House may be rare, but also having a supermajority on the Court may create once-in-a-generation incentives for the majority to press its agenda as aggressively as possible and sideline the minority in the process.⁵⁰¹

C. Local Engagement

In addition to transcending the traditional stovepiped structures of Congress by coordinating staff and resources on more proactive work, minority members could move beyond Washington, D.C. to better connect their agenda to local constituencies. In other words, they could spend less time and fewer resources in the Capitol defending against majority priorities and begin using their proactive work to drive greater engagement in their home states and districts. In addition, instead of treating their Washington and district offices as siloed entities that handle legislative matters on one hand and casework on the other, minority members could unify their staffs with the common purpose of delivering proactive work product that both informs and is responsive to local networks.⁵⁰²

For example, when he served as the ranking minority member of the House Oversight Committee, Representative Henry Waxman cordoned off some of his minority committee staff to focus on proactive priorities, and he produced hundreds of minority reports for members of the House and Senate, which they used to anchor panels, press conferences, and other events in their home states.⁵⁰³ Representative Waxman also pioneered a specific type of minority report known as a district level report. He directed minority staff to collect data from existing databases, conduct their own surveys, and gather information from public and non-public sources to create template reports that could be replicated for each congressional district. Using this model, he issued reports on issues ranging from healthcare⁵⁰⁴ to education⁵⁰⁵ to veterans.⁵⁰⁶ Representative Waxman was able to generate a high volume at a rapid pace by standardizing formats.⁵⁰⁷ Importantly, rather than issuing reports exclusively through press releases—which might receive only passing attention—members held in-person events in their districts to showcase these reports, connect with constituents, and generate significant local press in ways that participating in majority-controlled hearings in Washington seldom provides.⁵⁰⁸

By expanding this model to other committees and staffs, minority members could increase their proactive output, generate more local press coverage, and provide tailored information that is useful to their constituents, all while boosting their electoral prospects. These reports could be customized based on programs each committee oversees. For example, they could focus on families struggling with escalating consumer prices,⁵⁰⁹ small businesses and large corporations coping with increasing prices on imports,⁵¹⁰ or seniors in nursing homes and assisted living facilities facing cuts to Medicaid.⁵¹¹ Some offices have already been compiling this type of district-level data, but linking their efforts to local events could help members pursue the benefits of direct engagement at state and local levels.⁵¹²

Another benefit to this approach would be increased engagement with, and mobilization of, local networks of constituents. Supporters have been urging the minority to mount a more forceful opposition, and an increased focus on local engagement could help channel these efforts towards legislative and electoral campaigns.⁵¹³ Members and outside groups have made several proposals to capture this energy, including through local “resistance labs”⁵¹⁴ and “civil society field hearings.”⁵¹⁵ Several organizations have begun issuing their own district-level data as well.⁵¹⁶ Minority efforts could dovetail with grassroots campaigns that have been successfully utilizing local engagement as a key strategy. For example, drawing on research into the success of historical efforts to counter authoritarian governments,⁵¹⁷ the “No Kings” protests drew increasing numbers of participants not by organizing a single protest in Washington D.C., but by promoting hundreds of rallies in localities in all fifty states.⁵¹⁸ Organizers prioritized local engagement to successfully build and maintain momentum across the country, including in areas considered majority strongholds.⁵¹⁹ Minority members could not only tap into these types of movements by offering their own proactive work at the local level, but they could actively fuel them with dozens of local events showcasing multiple customized reports produced by their coordinated minority staffs. Ranking members could join district representatives, state delegations, and other members in highlighting the results of their work at local events, on local news broadcasts, and with local constituent organizations. As noted, this would require a significant commitment of staffing, time, and resources, but such a dedicated effort could result in much more widespread and lasting benefits than merely sending a tweet.

D. Pursuit of Bipartisanship

One critique of these proposals is that they could exacerbate the trend of increasing partisanship. By even partially absenting themselves from official congressional structures and proceedings, the minority might forgo opportunities for bipartisanship, despite how seldom they arise. What is needed, some might argue, are proposals to divert efforts away from deepening partisan divides and redirect them towards the bipartisan goals of negotiation, accommodation, and civil discourse.⁵²⁰ The review above documents how minority rights are being curtailed, but some may say these proposals could further separate the parties.

It may be tempting to respond in partisan terms, arguing that members of the current majority have shown themselves to be qualitatively different in their willingness to sacrifice Congress’s institutional interests to pursue partisan advantage.⁵²¹ Whether or not this is true, it does not answer the question of how to reverse the trend. Understanding the incentives of unified party control at the present historical moment may help explain the current majority’s actions, but not necessarily how to correct them. Winning future elections holds the promise of change, but it comes with the ascending party’s understandable reticence to unilaterally disarming and, to put it bluntly, being played for chumps.⁵²²

Tackling this challenge is daunting, and I cannot do it justice here, but based on the review above, I offer two modest proposals that demonstrate how the minority can serve its core interests by proactively pursuing opportunities for bipartisanship. First, as mentioned, the minority could establish more specific, concrete, and reasonable demands earlier in the process. The debacle early in 2025 with Minority Leader Schumer reversing his position on a Democratic filibuster generated significant consternation among his supporters and colleagues.⁵²³ Although he may have been correct about the risks of the approach, the electorate had little specific information about what the minority needed to support its position. This approach diminished the prospects of using leverage to obtain concessions or engage in negotiations with the other side. The minority may be able to achieve better results by using procedural tactics in conjunction with more specific demands. As a case in point, the three specific demands set by the minority before the government shutdown in October 2025 were much clearer, more compelling, and based on priorities that resonated across the political spectrum.⁵²⁴ Minority Leader Jeffries repeatedly described the minority’s demands in just eight words,⁵²⁵ and some Republicans expressed support, including Representative Marjorie Taylor Greene (R-Ga.).⁵²⁶ Sustaining their record-breaking filibuster for clear and widely supported demands served both minority goals of harm mitigation and possible future electoral success while in turn promoting future bipartisan legislative action.⁵²⁷

Second, minority members can make small, proactive proposals for collaboration with the majority that could evolve into true bipartisan successes. For example, when Representative Jason Chaffetz (R-Ut.) became Chair of the House Oversight Committee in 2015, Ranking Member Cummings approached him with several proposals. Before the Committee had its first meeting, they traveled to each other’s districts to meet with officials and tour local sites.⁵²⁸ They also agreed on informal protocols, including exchanging draft letters and agreeing to send them together if possible. By the end of that Congress, they had sent more than 600 bipartisan letters.⁵²⁹ This collaboration developed into larger investigative and legislative achievements. For example, when reports emerged of Secret Service agents drinking excessively and crashing vehicles into the White House gates, Representatives Chaffetz and Cummings discussed the scope of a potential inquiry, agreed to continue exchanging draft letters, and conducted a bipartisan investigation with a unanimous final report.⁵³⁰ They also passed bipartisan legislation that was signed into law.⁵³¹ Proactively seeking out these small but important opportunities for bipartisanship is no panacea, but it may start to foster circumstances in which members spend an increasing amount of their time on bipartisan projects.

VI. Conclusion

President Trump’s first hundred days after returning to office quickly forced Democrats to grapple with how best to confront their new reality facing unified party government. However, the all-or-nothing proposals that were being offered lacked sufficient nuance to thoughtfully consider possible ways forward. This survey is a first step toward mapping some of the tools and other powers that current and future minorities can utilize to achieve their investigative aims. Understanding and analyzing these powers is important not only for the party that happens to be in the minority, but also for the short- and long-term capacity of Congress to fulfill its constitutional duty to conduct investigations to ensure the Executive Branch faithfully executes the laws Congress enacts.

[*] Associate Professor of Law, Georgetown University Law Center. Thanks to Ryan Goodman and Tess Bridgeman at NYU School of Law and their team at Just Security for inviting me to submit the short piece that formed the basis for this more detailed analysis. David Rapallo, Congress Spotlight: The Minority’s Toolbox and a Possible Way Forward, Just Security (Mar. 25, 2025), https://www.justsecurity.org/109454/congress-minority-toolbox/ [https://perma.cc/YCM4-L588]. For their invaluable insight and suggestions, I thank Kristin Amerling, Russell Anello, Krista Boyd, Josh Chafetz, Sara Colangelo, Courtney French, Janel George, Claire Leavitt, Lucinda Lessley, Jonathan Shaub, and Todd Tatelman, as well as my excellent research assistants Jack Armistead, Max Heckman, Alyssa Negvesky, Grace Horton, Bryn Horner, Reed Rouch, and Lewis Schwartz.

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