How the Federal Government Shutdown May Affect Congressional Investigations

As the federal government shutdown heads into its fifth week, most of the focus is on the impact on executive branch operations. Congress is also affected, but in different ways. With only a week before the current impasse breaks the record for the longest shutdown in U.S. history, this client alert examines how the current shutdown affects congressional operations generally, and investigations in particular.

Previous Government Shutdowns

Since 1980, when the so-called “Civiletti Letter” (authored by then-Attorney General Benjamin Civiletti) opined for the first time that federal agencies must shut down upon a lapse in congressional appropriations, there have been 11 such situations. The longest, in 2018-2019, lasted 35 days. Other lengthy shutdowns include a 21-day shutdown in 1995-1996 and a 16-day shutdown in 2013. The rest lasted no more than five days.

The unique details of each shutdown make it difficult to predict how the current one will affect congressional operations. However, on the whole, this shutdown seems more like the one that occurred in 2013 than the one from 2018-2019.

The Current Shutdown

Unlike the 2018-2019 shutdown, when Congress had already passed and enacted a legislative branch appropriations bill before the fiscal year ended, the current shutdown began without such legislation in place. As a result, congressional staff face greater disruptions. This situation more closely resembles the 2013 shutdown, which also occurred before a legislative branch appropriations bill could be signed, resulting in staff furloughs, interrupted investigations, canceled hearings, and even shuttered congressional office buildings. Indeed, this is the current reality on Capitol Hill as of this alert’s publication date.

Congressional Operations

Another difference between this shutdown and other recent shutdowns is a relatively new law called the Government Employee Fair Treatment Act of 2019, which was enacted to ensure that all federal employees—including congressional staff—receive all owed backpay once a shutdown ends. Given this statutory assurance, it is more likely that the work related to congressional investigations will continue more or less uninterrupted. Although Congress can determine which employees are essential and which are subject to furloughs, the legal guarantee of post-shutdown backpay removes any real incentive to furlough personal office or committee staff. Therefore, the current shutdown is unlikely to halt congressional investigations entirely, especially behind the scenes. However, while staff are guaranteed backpay, the same law does not apply to the hundreds of contractors who perform many of the tasks, such as information technology, janitorial, food service and security, which make Congress run. This includes accommodating the public for committee hearings and business meetings. Indeed, since the shutdown began on Oct. 1, the House has not held a single public meeting.

The Senate has taken a slightly different approach from the House so far during this shutdown, remaining in session to pursue passage of a continuing resolution (CR) that would end the funding impasse and reopen the government. It has also continued voting on executive and judicial branch nominations which are, of course, unique to the upper chamber. Although it has postponed some scheduled hearings, the Senate has still held a few oversight-related hearings since the shutdown began. These include a Commerce Committee hearing on “big tech” and censorship, a Finance Committee hearing on the taxation of digital assets, and a Foreign Relations Committee hearing focused on several bills, mostly related to China and Taiwan. Additional committee hearings could be scheduled in the coming weeks.

Political Considerations

Oversight hearings will likely return to the calendar in both chambers even before the shutdown ends, driven by persistent political motivations and timing considerations as the midterm elections approach. The substantial amount of work that committee staff have already invested in ongoing investigations, and their intent to complete them, portends a return to relative normalcy even before a CR is passed. While some investigations initiated prior to the shutdown may experience minor delays, they are unlikely to be abandoned entirely. Likewise, potential subjects of new investigations should not expect a lasting reprieve. This is particularly true in the House where the current majority has a limited number of legislative days to pursue investigations aimed at gaining political traction ahead of the 2026 midterm elections.

Bottom Line

Congress’ investigative power to investigate is not only fundamental to its constitutional oversight duty but a critical tool for both parties to score political points ahead of the next election and, shutdown or no shutdown, there is always a next election. While the shutdown has caused a slowdown in congressional investigations, a gradual return to normal committee activity is inevitable, regardless of how long the shutdown lasts.

For any questions about the shutdown or about congressional investigations generally, contact the authors.