A year ago, I posted about the off-cycle election that had just occurred. While I was pleased with the Democratic wins, I suggested that we should perhaps temper our enthusiasm. I received considerable flak for that opinion and, after last week’s absolute shellacking of Republicans, some people have asked if I am now finally willing to be happy.
Some people just don’t know me at all.
Pessimism is healthy. And, yes, I’ll die on that hill. (I mean, we’re all going to die somewhere and I guess that hill is as good a spot as any.)
From my viewpoint, Democrats still haven’t won; they just finally qualified to compete. The Governance Event is run on an incredibly difficult track with newly entrenched roadblocks and numerous time-sucking detours. Many of the race’s top stewards aren’t exactly unbiased. Our current drivers might not be skilled enough to avoid a plethora of potholes. Other drivers on the track are known to be complete assholes.
I’ll try not to overly belabor my point and I will get around to thinking about what Democrats can and actually should do when they get their hands on at least some of the controls. I truly want to see Democrats over-deliver. That, unfortunately, will be impossible if they start by over-promising.
I’ll note just a few of the institutional hurdles that lie ahead.
The Very Lame Ducks
The GOP is still in control of everything for the next several weeks.
The lame duck Congress just convened. Republicans who were just flipped out of office have a long “Last Supper” wish list with which to flip off the American electorate that just told them to pound sand. Meanwhile, Democrats have no desire to pass anything that isn’t absolutely necessary to keep the government running – namely a short-term government funding bill and the National Defense Authorization Act. Since neither of those are slam-dunks, it might be tough for Republicans to get much else done. However, they will certainly try to cram through even more war funding and their voting restrictions bill.
The GOP could make judicial appointments their priority in the Senate. At this moment, 3 nominations are awaiting floor votes, another 10 are currently before the Judiciary Committee, another 10 have been nominated but haven’t yet had a hearing, and another 20 vacancies have no current nominee. Democrats can use some procedural delaying tactics to make confirmations difficult, but they can’t do much to stop a unified GOP.
To that point, the GOP losses were severe enough that necessary Republican attendance in the lame duck session could be an issue.
Current Senate Republicans have only a 3-vote margin if all Democrats show up. A few GOP Senators who aren’t coming back (Cassidy, Cornyn, Tillis) aren’t huge fans of Trump and might not be inclined to do him many favors. GOP Senators who lost their seats (Collins, Marshall, Husted, Graham) or are otherwise moving on (Daines, Lummis, Ernst, Armstrong, Tuberville) may play along or may have better things to do. One (McConnell) might not be physically capable of extended attendance. A select few (Murkowski, Thune) who are coming back might not want to completely piss off the incoming majority with overly aggressive tactics.
Current House Republicans have only a 2-vote margin if all Democrats show up. At least 43 House seats are changing from Republican to Democratic hands and it might be tough to get almost all of the Republican short-timers to stay in Washington.
Finally, everyone will be concurrently quite busy with across-the-board transitions. There will be massive physical office moves and staff shake-ups. Leadership issues on both sides of the aisle will need to be settled. Committee assignments with new party allocations will be competitive. And, of course, all of this will need to be scheduled around the holidays.
In short, it’s going to be a long, hard ride to January 3 for everyone. And, unfortunately, it still won’t be a smooth ride thereafter.
The Administration
Unfortunately, the Orange Guy will still be the President after Democrats take control of Congress.
Even with a pliant Republican Congress, Trump chose to govern mostly via Executive Orders. A Democratic Congress can certainly try to rein those in, but the deck still won’t be stacked in their favor.
- While Democrats will be able to challenge executive overreach in court, the current SCOTUS has repeatedly taken a unitary executive position – where the President wields incredible unilateral powers (at least when a Republican is President). I wouldn’t bet on Democrats winning many separation-of-powers cases in this Supreme Court.
- Democrats will be able pass some legislation without Republican support, but they won’t have the votes to overcome a Senate filibuster on non-budgetary bills.
- Any legislation that manages to reach the President’s desk, can simply be vetoed. Without Republican support, Democrats won’t have the votes in either congressional chamber to override it.
- While Democrats could refuse to fund specific Administration priorities, the reality is that prior bills have already fully funded many of them. And, again, Democrats won’t have the votes to pass bills rescinding that funding.
- Government shutdowns are certainly possible and they might not end well for anyone. Trump simply won’t care if a shutdown hurts people. He’ll just want to win at all costs, despite any damage to the country or to other Republicans. Trump’s recent choice of a Nazi-presenting Chief of Staff who is universally disliked isn’t exactly a good sign of things to come.
Congressional Oversight
After two years of Republican passivity, Democrats will be conducting numerous congressional oversight hearings. Fulfilling this constitutional responsibility will be a long overdue exercise, but actionable outcomes are unlikely.
While Democrats will be able to issue subpoenas for information and testimony, Trump will certainly claim executive privilege in attempts to circumvent them. The SCOTUS majority will be loathe to get involved and it will be stalemate after stalemate.
On the off-chance that evidence of criminal activity and/or abuse of power can be gleaned from redacted documents and uncooperative witnesses, committees would normally refer criminal cases for possible indictments. Unfortunately, those referrals must be directed to the Justice Department — a Justice Department run by an Attorney General who considers himself to be both the President’s personal lawyer and a defender of all things Republican. There is zero chance that anything referred to the Justice Department will result in an indictment.
Cabinet officials could be impeached by a majority vote in the House without involving the AG. However, getting 67 Senators to vote for a conviction would necessitate about a dozen Republican Senators joining all of the Democratic Senators. I’ll call that unlikely.
Finally, even if an impeachment case is so painfully obvious that a bipartisan conviction somehow happens, Trump could then use his pardon power. The pardon wouldn’t negate the impeachment itself and the cabinet official would indeed be removed from office. However, the pardon would negate any criminal consequences and would literally provide them with a get-out-of-jail-free card.
Sadly, oversight hearings will provide some interesting television … and not much else.
Democratic Dysfunction
For the most part, Democrats came together to win by margins that few predicted. (My own predictions also fell short and I’ll conduct an after-action report on my model at some point.) Still, there are some areas where Democrats choked and missed out on an even bigger election night.
- Florida was winnable this cycle, but the nomination of a Democratic Socialist for Senator was a bridge too far. Florida ain’t California or New York. In the Florida Governor’s race, Jolly ran a horrible campaign and the fact that he just recently switched from being a Republican wasn’t lost on the electorate. Of course, neither candidate was helped by national Democrats who mostly ignored the state.
- Montana was also winnable, but the self-inflicted wound of running two candidates against the Republican was fatal. Running an independent would have been fine; running a Democrat would have been fine; running both was sheer stupidity.
Democratic Leadership
Although Chuck Schumer and Hakeem Jeffries are taking their expected victory laps, Democrats won in spite of them – not because of them. With the charisma of turnips and the oratorical skills of organic chemistry researchers, neither is particularly well-suited to lead their chamber majorities nor the Democratic party in general. While the Democratic bench has some impressive options, acrimonious leadership battles would be a bad look at this point. Democrats don’t want to repeat what House Republicans went through selecting their leadership. I think we’re stuck with what we have for now.
While I know my tone may not reflect it, please note that I am beyond thrilled that Democrats are now back in the fight! I have finally moved on from the depressing post that I wrote after the 2024 elections and I welcome a new start for both my blog and my country (not necessarily in that order).
Let’s just not get cocky.
“This writing business, pencils and what-not. Overrated if you ask me.“
– Eeyore