What Democrats could actually do if they win Congress
What Democrats could actually do if they win Congress
The outcome of the midterm elections is perhaps the single most important factor in determining how the final two years of Donald Trump’s presidency will play out — and what impact it will have on people’s lives in the United States and around the world.
If Republicans defy the polls and hold both chambers, Trump would have the chance to pass more sweeping legislation on party-line votes, confirm more loyalist nominees to important positions, and continue remaking the judiciary, all while keeping oversight to a minimum. Democrats would have limited tools to object, Republicans would keep a free hand to run Washington, and Trump would be able to cite the results to maintain party loyalty. Practically and politically, the next two years would look a lot like the last two.
Conversely, the better Democrats do, the more power they will have to block Trump’s agenda, check his power, investigate his administration, and advance priorities of their own on issues like the economy, healthcare, the war in Iran, immigration enforcement, corruption, and more. But they’d also face significant limits on their power, from the Senate filibuster and Trump’s veto pen to White House tactics that could delay or derail oversight.
Key takeaways
- Even if Democrats romp in the congressional midterms this week, they won’t be able to do whatever they want; however, if they use their powers creatively, they could achieve real and meaningful accomplishments.
- Legislative accomplishments would likely happen in one of three ways: through confrontations on “must-pass” bills, through bipartisanship, or by laying the groundwork for bills a future Democratic president could sign.
- House or Senate majorities would give Democrats subpoena powers, but the Trump administration will likely refuse to comply; Democrats would have to think outside the box in how to make their investigations succeed.
- A Senate majority would make it far more challenging for Trump to confirm nominees and would slow his judicial confirmations to a trickle, if that.
So what are the real midterm stakes? Which moves from a Democratic Congress would be symbolic and which could have an immediate impact on real-world outcomes? And what might prevent them from achieving their goals?
To get a better sense of what Democrats could actually do if they won power in Congress, I spoke to current and former congressional aides as well as plugged-in outside experts. They generally painted a picture of a grim slog akin to trench warfare. Some believed the expectations of the Democratic base would far outpace what could realistically be achieved, and that frustration and disappointment were inevitable.
But some also expressed surprising optimism that, if Democrats played their cards right, they could score real and meaningful accomplishments — in driving policy change, in bringing wrongdoing to light, and in laying the groundwork for far more ambitious goals in the near future.
Whether they can do this will depend in part on politics and messaging, but also on how they use the formal tools that would be newly available to them with a congressional takeover: legislation, investigations, and — in the case of a Senate win — the confirmation process.
Legislation: How new Democratic majorities could legislate in a way that actually matters
House Democratic leaders are proudly talking about the bills they plan to quickly pass if they win the majority on topics such as healthcare, tariffs, and the war in Iran.
But the reality is that, so long as the Senate’s 60-vote requirement for ordinary legislation to advance remains in place, such bills aren’t going to make it to Trump’s desk without winning significant Republican support. (And even if they do make it to Trump’s desk — say, via the special budget reconciliation process — he could veto them.)
Instead, for Democratic majorities to do meaningful things with legislation under Trump, they’d likely have to pursue one of the following three approaches.
1. Confrontations on the must-pass bills
Lots of bills go nowhere in Congress, but some are viewed as “must-pass.” Some have practical consequences for failure after a certain deadline: If the debt ceiling isn’t raised, the country will default on its debt with potentially catastrophic consequences; if government funding bills aren’t passed, the government will shut down, as it did for 43 days last year.
Often, if one or both chambers flip in the midterms, a bold new majority tries to use one of these bills to make policy demands on the president, believing the bill’s “must-pass” status gives them leverage. Then, a showdown unfolds, as both sides play chicken before a looming deadline.
So if Democrats win the majority, they will have to decide: Which much-pass bills do they want to make demands over, what do they want to demand, and just how hard do they want to demand it?
Experts I spoke to were skeptical Democrats would push too hard on the debt ceiling. “The Democratic position in the past has been, ‘We don’t threaten the full faith and credit of the US government,’” Bobby Kogan, the senior director of federal budget policy at the Center for American Progress, a Democratic-aligned think tank, told me. The consequences of default seem, to them, too devastating to risk, and they’re historically reluctant to legitimize Republicans’ use of the debt ceiling as a weapon under Democratic presidents.
Some sort of fight seems likelier on government funding — after all, even while in the Senate minority, Democrats used the filibuster to shut down the government late last year, demanding that Republicans extend subsidies for the Affordable Care Act. They could run that playbook again, saying they won’t fund the government unless Trump agrees to their demands on healthcare (such as rolling back Trump’s Medicaid cuts), ICE (where they’ve demanded new accountability measures and restrictions), or other issues.
Many are skeptical that Democrats will successfully strong-arm Trump into making concessions in this way. When last year’s shutdown stretched for over a month and its consequences — for unpaid government workers and recipients of government benefits — grew more acute, enough Democrats eventually gave in even as they seemed to have the upper hand in polling. But it’s likely that the party’s base will urge them to try again — and if they do, their theory that they have more leverage over Trump this time will be tested.
2. Bipartisanship
The alternative to trying to shake the president down is to actually try and get Republican votes — passing measures with bipartisan support.
And don’t scoff — though partisan battles will get all the headlines, there’s still a surprising amount of bipartisan action on substantive issues in Congress. During the final two years of Trump’s first term, bipartisan bills on Covid relief, energy, and trade passed. Under President Joe Biden, bills on infrastructure, semiconductors, same-sex marriage, and presidential election reform won bipartisan support. And this year, a bipartisan housing bill became law, and Congress hopes to pass an electricity permitting reform deal before the end of the year, too.
Some of these bills were standalone; others became law because they were attached to must-pass bills, such as government funding, or the National Defense Authorization Act. That’s a potential way to get something Trump doesn’t like into law — get enough Republicans on board, and hope that either Trump will conclude it’s too much of a headache to veto it, or that support in Congress is so strong his veto will fail (two-thirds of both the House and Senate can vote to override a veto). There’s precedent from this year’s bipartisan housing bill, which Trump allowed to become law without his signature.
Matthew Fiedler, a senior fellow at the Brookings Institution, told me that Democrats could try to add riders on appropriations bills that block certain controversial Trump administration regulatory actions. “That feels potentially achievable to me,” he said. But, to get those bills to Trump’s desk, they’d have to get the consent of Republican negotiators in Congress.
Bipartisanship can be achieved through working with the other party and compromising with them. But another route is through political pressure — say, if a proposal is so popular and politically potent that the other party feels they have no choice but to go along. “Bipartisanship is not always the signal of a kumbaya environment,” Charlie Ellsworth, a former aide to Democratic Senate leader Chuck Schumer who currently advises the advocacy group Public Citizen, told me.
That’s what happened with Rep. Ro Khanna’s (D-CA) bill to release the Epstein files last year; GOP leaders tried to hold it back, but the dam broke and it eventually passed with overwhelming majorities in both chambers. If Democrats win the majority, they could similarly put pressure on the GOP by forcing votes on issues where the party might be divided — like tariffs, or the Iran war.
3. Groundwork for the future
The other route for legislating to really matter in the next session is more forward-looking — Democrats could be crafting bills that they truly intend to pass in 2029, if a new Democratic president is sworn in and the party holds Congress.
The idea here is that the next president may have a limited window to pass major legislation, so he or she will be looking for ideas to take off the shelf. And the more serious legislative work that gets done in this Congress, and the more Democratic consensus is built ahead of time, the better-prepared certain bills could be for that opportunity.
Trump’s One Big Beautiful Bill Act last year, for instance, included several provisions that House Republicans had crafted during the Biden administration. Similarly, Biden’s Inflation Reduction Act included prescription drug provisions that House Democrats had crafted during Trump’s first term.
“There’s a lot of consequential prep work that can happen during these time periods, even when there’s not a real prospect of the legislation becoming law in this term,” Fiedler said.
The flipside is that if Democrats flock to unworkable ideas in this Congress in order to appease an interest group or win a messaging fight, they may feel pressure to follow through in the next Congress — and problems may result. Take the first year of Trump’s first term, when he and the GOP felt compelled to deliver on their longtime vow to repeal Obamacare — but since they hadn’t come up with a specific proposal to do it that was politically viable and hadn’t seriously grappled with the many potential downsides for patients, the effort ended in failure.
“Democrats need to be cognizant that if you’re going to do a test run and draw a contrast between what Democrats are for and what the president opposes, you should expect the American people will ask you to deliver when you have the power,” Ellsworth said.
Investigations: How Democrats could think creatively to get around Trump’s stonewalling
Democrats say it’s urgently necessary to investigate a plethora of Trump administration scandals, from the Trump family’s crypto investments to Trump’s granting of pardons to his fundraising for the White House ballroom construction to aggressive actions by ICE, and much more.
Winning control of either the House or Senate is crucial to these efforts because it would give them a hugely important investigative tool: congressional subpoena power. Democratic majorities would be newly able to issue legally binding requests for documents and testimony. (Currently, stuck in the minority in both chambers, all they can do is ask nicely.)
Why do investigations matter? One goal can simply be to unearth new facts about what’s been going on inside the executive branch, which can help determine their next steps. A second can be to spur criminal investigations, though this seems unlikely while Trump is in power, given his co-option of the Justice Department.
A third can be to pave the way to impeachment if significant wrongdoing is exposed. That said, in contrast to Trump’s first term, Democrats sound far less eager to impeach him this time around, though some have floated potentially impeaching Cabinet officials.
Finally, a fourth goal can be to use hearings and other activity to focus the press and public’s attention on certain topics and potentially build momentum for action in response. Many Democrats feel that their 2021-2022 House January 6 committee, which featured dramatic public testimony and audiovisual presentations, was an innovator here.
The catch is that the Trump administration could — and likely will — just refuse to comply with subpoenas aimed at officials or agencies. In Trump’s first term, he vowed to fight “all the subpoenas” from House Democrats, and for the most part the administration followed through, declining to cooperate or asserting executive privilege.
If faced with this stonewalling, the usual next step is for Democrats to sue, and hope courts will compel compliance from the administration. The perennial problem, though, is that such lawsuits often take a long time to resolve — and could well stretch on into the next president’s term.
“It is unfortunately possible for the recipients of congressional subpoenas to resist and drag out these proceedings,” Tim Heaphy, the former chief investigative counsel for the House January 6 committee, told me. “And lawyers knew that, so they could run out the clock.”
Anticipating this resistance, Democrats have floated that they may focus their subpoenas on people or companies outside the government who they think might have information about executive branch malfeasance.
These potential subpoena targets include donors to the White House ballroom construction effort, investors doing business with the Trump family, private companies that have gotten federal contracts, lobbyists that have helped secure presidential pardons for their clients, and law firms that made deals with the Trump administration.
The administration may still at least attempt to cite executive privilege to try to quash these subpoenas. “I’ve heard that there’s already some discussion about whether the executive branch would have standing to object to a subpoena handed to a government contractor,” Heaphy said. Democrats also hope to get cooperation from whistleblowers and government officials who actually want to share what they know.
But some have called on congressional Democrats to do more to try and ensure there will be consequences for defying subpoenas. For instance, Congress could theoretically assert a power known as “inherent contempt,” ordering noncompliant officials to be detained (or, potentially, fined); this power has not been invoked since 1934. If they tried to use this power against administration officials, a major constitutional battle would ensue. Others have suggested the less dramatic approach of making government funding contingent on agencies’ or officials’ cooperation with investigations.
Josh Chafetz, a Georgetown law professor and an expert on congressional power, told me that, to succeed with investigations, Democrats would have to think creatively. Simply litigating the Trump administration’s defiance, he said, was “a fool’s errand.” He added: “If they follow that playbook, they’re going to get the same results — which is, nothing will happen in those investigations over the next two years.”
Confirmations: A Senate takeover would have big stakes for how the Trump administration functions
If Democrats manage to win the Senate, there will be another major consequence — Trump will need their approval to confirm judges and many administration officials.
Trump has nominated several extreme or controversial figures to his administration; and, because the GOP Senate majority was inclined to defer to their party’s president, the vast majority of them were confirmed. (Sorry, Matt Gaetz.) These nominations can have very real consequences: if Trump had selected someone other than Pete Hegseth, who was only one vote away from not being confirmed, as defense secretary, perhaps he would have heard more warnings about the risks of war with Iran.
A Democratic Senate would be far more skeptical of confirming particularly controversial nominees for administration positions. But more broadly than that, all Trump nominees would face tougher scrutiny. “The administration’s going to find it very hard to get pretty much anyone confirmed,” Chafetz said.
The official line from Democratic leadership is that they will be happy to confirm qualified Trump nominees — but that Trump is simply nominating unqualified people. “If the nominees are as crappy as his present ones, very few of them are going to get through,” Sen. Chuck Schumer (D-NY) — the likely majority leader, if Democrats win the Senate — told Semafor last month.
A confirmation blockade wouldn’t lead to an urgent crisis, since Trump’s administration is full of confirmed appointees already. But as various officials leave the government — voluntarily or involuntarily — Trump will want replacements. Democrats will have to weigh just how far they want to go in slow-walking or delaying Trump nominees. Some Democrats will also want to use nominees as bargaining chips in their dealings with the administration, while others may think obstructing noncontroversial nominees is antithetical to how government should function.
Trump would likely respond by trying to rely more on “acting” appointees for key roles, as he did in his first term — but there are legal limits on who can be appointed to an acting role, and how long they can serve there.
Judicial nominees, meanwhile, serve for life if they’re confirmed. So a Democratic Senate majority would be most skeptical about confirming Trump’s judge picks, particularly at the circuit court level and certainly at the Supreme Court should any vacancy arise.
For the Supreme Court, this is most consequential; conservatives currently have a 6-3 majority. But there are four Supreme Court justices in their 70s, with the oldest being 78-year-old Clarence Thomas and 76-year-old Samuel Alito.
If Republicans hold the Senate, either could retire confident a right-wing successor would be confirmed. But if Democrats take over the chamber, they’d likely follow the precedent set by the GOP when they refused to even consider President Barack Obama’s nominee for the late Justice Antonin Scalia’s seat in 2016 — holding it open for the next president to fill.
That said, there may be a brief window for Republicans to try to confirm a justice in the final session before the new Senate majority is sworn in, if one or more do decide to step down.
The political stakes: In Trump’s last two years in power, will he be hemmed in — or emboldened?
Finally, looming above and affecting all these issues, is the political reality that the midterms will deliver what’s taken as a verdict on Trump’s second term so far.
If Democrats’ win is huge, Republicans will engage in a frenzy of finger-pointing and blame-casting as the party grapples with what comes next for them after the Trump era, especially with a presidential contest starting up in which he won’t be on the ballot. Practically, Trump will be more hemmed in, and though he will surely stoke further controversies and crises, he will be a weakened figure facing constant challenges from Congress.
Conversely, if Trump’s GOP defies the polls and holds both chambers, he’ll likely treat it as a complete vindication of his second-term approach — and feel emboldened to plunge ahead on his most controversial agenda items, from ICE crackdowns to the Iran war, confident Congress will do little to stop him and the next Republican nominee (whether Vice President JD Vance or someone else) will take his side.
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