A Democratic Congress can do much more than pass laws

Assuming that the predictions are accurate and Democrats take back the House and the Senate, what exactly is it that they’re supposed to do next? Even if they win the kind of comfortable majorities that let them pass bills without hanging on to every member, Donald Trump will still be president. And, if anything, his antipathy to the law and separation-of-powers constraints will only be magnified when he no longer has a fully subservient MAGA Congress happy to let him trample over its own powers.

I wouldn’t blame any given liberal voter for feeling a creeping worry that any midterm wave would break against the reality of a White House that’s openly hostile and explicitly authoritarian and a Supreme Court majority apparently committed to advancing a conservative ideological project, one that leads them to generally coddle Trump as a sort of necessary evil. I would caution against any such fatalism, on several grounds. Important work can still be done.

Lessons from an unfinished Reconstruction

You could make an argument that this is the worst time in American history, at least in terms of how close we are to having the whole enterprise just collapse, even bearing in mind that we had a whole Civil War and were able to restitch the country. The aftermath of that shock is actually instructive here. Many scholars contend — correctly, in my view — that a good chunk of what has gone wrong in our contemporary politics can be traced back to the failures of Reconstruction, which was tragically left incomplete. The Compromise of 1877 pulled northern troops out of the former Confederate states while the framework of what would become Jim Crow was already being built. Put another way, the mechanisms that would have ensured that civil rights in the South existed as more than words on paper were never secured in place. That failure allowed the South to exist outside the supposed constitutional order for close to another hundred years, until the Civil Rights movement of the mid-20th century.

As I heard journalist Al Letson recently put it in a conversation with historian Heather Cox Richardson for the Reveal podcast, it’s as if the hot war of 1861 to 1865 gave way not to peace and reconciliation but to a sort of cold war that dragged on for decades more, arguably until the present day. The 1877 deal let northern Republicans off the hook of a struggle they no longer cared to wage, but it poisoned our politics in lasting ways. I bring all this up not just to give you a history lesson, but because I think this is quite relevant now as Democrats face the prospect of regaining some formal power after these disastrous years.

We have not quite gone through a civil war, but we have clearly gone through an attempted dismantling of our constitutional order, and we cannot forget that Trump did actually try to launch, in the parlance of Latin American authoritarianism, an “autogolpe,” a self-coup, by having his supporters storm the Capitol on Jan. 6, 2021, after his own administration’s officials and the military refused to go along. His second term has been characterized by, as Jamelle Bouie recently wrote in The New York Times, not just an antipathy to following the law, which presidents past have certainly had (hi, Nixon!), but a jettisoning of even the pretense that the law matters or applies to him.

Just this week, the Justice Department announced that it is, for the third time, attempting to prosecute former FBI Director James Comey in what amounts to obvious political score-settling. Judges have ruled that ICE agents and others delegated to immigration enforcement have violated the law literally thousands of times, often in clear contempt of court. The military continues to blow up civilian boats it accuses of being engaged in drug trafficking, having at no point enunciated a legal basis for doing so or provided any evidence of guilt.

The power to investigate

With control of Congress comes control over its quite expansive investigative powers, which are practically unlimited as long as the subjects fall within the constitutional scope of its legislative authority. Congress has the power to not just launch inquiries but also to issue subpoenas, compel the appearance under oath of executive branch officials and their enablers in private industry, seek specific financial, communications and other records and so on. It has the power and staff to produce investigative materials that the Justice Department won’t. In the face of expected executive recalcitrance, like refusing to comply with subpoenas, Congress can pursue contempt proceedings, with multiple potential civil and criminal penalties. These are difficult and legally fraught efforts, but much of the federal judiciary below the Supreme Court seems fed up with the administration’s antics and might go along with enforcing them. 

I was reading this week about shocking revelations around the extent of Homeland Security’s domestic surveillance apparatus for political activists, illuminated by documents uncovered during discovery in the case of the so-called Minnesota 15, activists who had protested the federal occupation of the state earlier this year. As a number of scholars and former law enforcement personnel told Wired, this operation seems even bigger than the notorious COINTELPRO efforts to investigate and undermine the civil rights and anti-war movements in the 1950s, 1960s and 1970s. Federal agents are using incredibly sophisticated tools, designed for narcotics and counterterror investigations, to surveil political activists, unions, advocacy organizations and others engaged in First Amendment-protected activity against the administration, assigning apparently dozens or even over 100 agents at a time to the task.

What we have to remember is that the true extent of the government’s anti-democratic activities during the COINTELPRO era was not revealed by the executive branch or by journalists alone. An investigative body in the Senate that became known as the Church Committee produced a report in 1975 that revealed not only how much the intelligence and law enforcement agencies were spying on domestic political actors but also the CIA’s experiments with attempted mind control; efforts to influence the news media; and even the sharing of telecommunications data with the National Security Agency, a precursor to the NSA spying that Edward Snowden would reveal decades later. In response, the Senate set up the permanent Select Committee on Intelligence.

Congress has done it before and it can do it again. There is probably a lot that we don’t know about how the administration is actually collapsing the rule of law, not to mention the likely staggering scale of corruption that Trump, his family and high-level executive officials are engaged in. A serious Senate committee could probe all of this and lay it out fully for the public record. It could issue criminal referrals for misconduct and violations of law, including referrals for perjury when officials lie under oath, as would seem inevitable with this crew. The DOJ is never going to pursue these referrals, but that still puts the department in the position of telling the public that it is not going to act on a clear evidentiary record of the administration’s crimes. Plus, this record will then exist in two years’ time when a Democratic president might take office, which will make it harder for that administration to just “turn the page” or whatever the platitude of the moment is, and force it to contend with the conduct of its predecessor and the damage it did to the country; no Nixon pardon this time.

Legislating for later, saying no now

The same principle applies to legislation. Can Democrats actually get big-picture legislation passed into law? Probably not; even if they somehow manage to navigate the filibuster issue, there’s no way they’re overriding a presidential veto. That doesn’t mean, though, that they should set ambitious policymaking aside. If anything, they can take this as an opportunity to introduce expansive bills, negotiate them out in Congress, work out the kinks and the points of disagreement, sell the legislative agenda to the public and then use it as a selling point in the 2028 election: Look, we have this whole framework ready to go if and when we have a president who would sign it. So go ahead, introduce Medicare for All and comprehensive immigration reform and the restructuring of federal law enforcement authority and all that, have hearings about all of it, produce Congressional Budget Office scores and so on. There’s no rush to pass things that won’t have a chance in the near term, so take your time with it, Democratic majority.

This is also an opportunity to take back power that Speaker Mike Johnson and his ilk have allowed to be siphoned away by Trump and his cronies. A very basic thing this Congress can do is say “no.” No to unauthorized tariffs, no to war without congressional authorization, no to unqualified nominees for executive positions and the judicial bench. There are plenty of grounds at this stage to at least begin impeachment proceedings against officials like Health and Human Services Secretary Robert F. Kennedy Jr., and Defense Secretary Pete Hegseth, who have so clearly been derelict in their crucial duties. Then there’s the more fraught question of a potential third impeachment of Trump, though one is well-deserved, or of judges including Supreme Court justices who seem compromised, like the scandal-plagued Clarence Thomas. Perhaps Congress can even begin setting the groundwork to say no to SCOTUS’ monopoly on constitutional interpretation, as I wrote about recently.

It is the chance to really establish a fully separate governing vision, built atop public disgust at Trump. As I wrote last week, the winning message here is optimism allied with and not in opposition to pragmatism, the Mamdani political method. What a Democratic Congress could do, shy of actually passing meaningful legislation, is hold the administration accountable before the public and prepare for what’s next.