This article appears in the Fall 2018 issue of The American Prospect magazine. Subscribe here.
“Politics Ain't Beanbag”
—Mr. Dooley (Finley Peter Dunne), 1895
For much of the past three decades, Republicans have been playing serious hardball while Democrats have often played beanbag. When Republicans took over the House in 2011 and then the Senate in 2015, they began violating normal legislative procedure with increasing recklessness. Bills were enacted without hearings and little notice, often being finalized in House-Senate conferences with only Republican legislators participating. Members were literally asked to vote on final passage with no text available. Venerable norms and courtesies were shamelessly manipulated. The Senate's blue slip rule, allowing a home-state senator to put a hold on a judicial nomination, was interpreted to require two holds to block action when Republicans were rushing through confirmations, but just one hold when Democrats were trying to confirm judges and Republicans were in blocking mode.
Barack Obama kept hoping against hope that if he reached out to Republicans, they might reciprocate. But they took it as a sign of weakness, and doubled down on their strategy of obstruction. Republicans in Congress threatened to take the economy over a fiscal cliff in 2011, when all of the 2001 Bush tax cuts expired. Democrats, as the self-appointed grownups in the room, met the Republicans 80 percent of the way to keep the government functioning. They extended most of the Bush upper-income cuts, even agreeing to a sequester to cut spending for good measure.
Democrats, in that episode, held most of the cards. If they had hung tough and insisted on fairer terms, Republicans would have risked being blamed for massive tax hikes in a recession, and would have had to compromise. I vividly recall being on a radio talk show with GOP arch–tax cut strategist Grover Norquist, and Norquist in the green room before the show asking me in genuine bewilderment why the Democrats had caved. Why, indeed?
Donald Trump has violated every norm of comity and decency.
But he has had willing accomplices in Mitch McConnell and Paul Ryan. Now, however, the odds look good that Democrats will take back the House, for the first time since 2010. Taking the majority in the House of Representatives would give Democrats the ability to revise the House rules, control the floor agenda, elect committee chairs, dramatically increase the size of their staff, conduct hearings, subpoena witnesses and documents, and initiate investigations—including impeachment.
During their years in opposition, as victims of every manner of abuse, House Democrats have belatedly acquired some toughness. Except for the 2017 Tax Act, they have managed to block every major Trump initiative. Democrats have also achieved impressive unity. On previous Republican tax cuts, about a third of Democrats defected and voted aye, on the premise that cutting taxes was popular legislation; if it were going to pass anyway, they might as well share in the credit. This time, not a single Democrat supported Trump's tax bill.
An article such as this one has to begin with the obligatory disclaimer. There is surely a blue wave, but also multiple sources of undertow. That said, it's not too soon to give serious thought to how Democrats should proceed if they do take back the House, even better if they take back both houses.
In America, taking back Congress has often prefigured the next presidential reversal. The Democrats' capture of the House in 1930 anticipated Roosevelt's 1932 landslide. Likewise the huge Democratic gains in 1958, which brought to Congress a generation of superb progressive legislators and laid the groundwork for the New Frontier and Great Society legislation. Same story in 2006, when Democrats took back the House and helped prepare the ground for Obama's victory in 2008. These congressional wins are not just harbingers; what Democrats do with their leadership of one or both Houses helps make the next presidential win happen.
ONE SCHOOL OF THOUGHT holds that the Democrats need to turn the other cheek in order to model good behavior and restore respect for norms. Political scientists Steven Levitsky and Daniel Ziblatt, in their influential book How Democracies Die, decry “extreme partisan polarization” and urge the Democrats to resist the temptation to fight fire with fire. “Even if Democrats were to succeed in weakening or removing President Trump via hardball tactics, their victory would be Pyrrhic.” Instead, they argue, Democrats should “work to restore norms of mutual toleration and forbearance.”
The White House
That strikes me as stunningly naïve. But given the recent history of what legal scholars Joseph Fishkin and David Pozen call “asymmetric constitutional hardball,” just how should Democrats proceed? Harvard law professor Mark Tushnet, who first coined the term “constitutional hardball” more than a decade ago, calls on Democrats to play even harder hardball, including the dubious tactic of packing the Supreme Court, which they indeed could do by statute. The question, it seems to me, is not whether the Democrats should play hardball—they should—but what smart and strategically successful hardball looks like.
If Democrats do take back the House, there are multiple goals and means. One is to contain and ultimately bring down Donald Trump. Another is to build an affirmative agenda looking forward to 2020. The two are related. The more that Democrats can demonstrate their commitment to a program that truly serves working families, the more they can call out Trump's entirely bogus populism, and the more that sets the stage for a big democratic win in 2020. A Democratic House can serve as government in exile.
Given that Trump still controls the veto pen, enacting laws is not a possibility until 2020 at the earliest. But with even one house, Democrats can blunt bad legislation. One good strategy is to propose and advance emblematic bills, bring them to the House floor, and force Republicans to take awkward votes that show the voters whose side they are really on. Democratic leader Nancy Pelosi has said that an early priority would be a massive infrastructure bill. Another good candidate for the designation H.R. 1 would be a national $15 minimum wage. This simple legislation would usefully jam Republicans. Either they vote for a priority Democratic bill that enjoys broad public support, or they explain to voters why they oppose it.
Legislation to raise wages has powerful symbolic resonance, and a $15 national minimum would help millions of working Americans. In 2004, the community group ACORN, working with unions, qualified a ballot initiative in Florida to raise that state's minimum wage by a dollar an hour. The direct impact stood to benefit only about 6 percent of Floridians, but the measure sent a potent signal.
John Kerry, the Democratic candidate that year, was asked to support the measure. He declined. On Election Day 2004, the minimum-wage initiative carried every single Florida county, including deeply Republican ones. It got two million votes more than Kerry did, and a million more than George W. Bush. Had Kerry been on Florida street corners with ACORN championing the minimum wage, he might have been elected president.
There are other strong, simple proposals that can signal practical help for working Americans who sometimes defect to Republicans. The portions of the Republican Tax Act that benefit the wealthiest Americans and corporations could be repealed and the savings directed to strengthening Medicare and Medicaid. Introducing that legislation and bringing it to a floor vote would smoke out Republicans. Likewise legislation to provide significant relief for student debt.
A related idea is a bill of rights for the young. More than any generation since the young adults who came of age in the Great Depression, young Americans today are the stunted generation. Between the high cost of housing, the burden of student loans, and the paucity of real payroll jobs, there has been a serious decline in the standard of living of millennials not lucky enough to benefit from a family welfare state of affluent parents. By packaging student debt relief with special financing for starter homes and legislation to make it harder for employers to disguise regular jobs as contract work, the Democrats would signal concern, offer practical help, and once again force Republicans to take awkward votes.
Democrats could also propose legislation aimed at cracking down on corruption and corporate abuses. Two model bills were introduced by Senator Elizabeth Warren in August. One, the Accountable Capitalism Act, would require the federal chartering of corporations with revenues over a billion dollars, with provisions such as worker seats on corporate boards, disincentives for exorbitant executive pay, requirements that the corporation serve all stakeholders and not just shareholders, and higher hurdles for corporate campaign contributions. The other, the Anti-Corruption and Public Integrity Act, would include a lifetime ban on lobbying by all former officeholders, prohibit officeholders from directly owning stocks, and expressly require the disclosure of tax returns by candidates for president. Hearings on legislation like this can bring abuses to light, and educate the public.
AP Photo/WX
Yet another subject of key legislation concerns efforts to reclaim American democracy. Measures could include bills to restore the full power of the Voting Rights Act, curtail multiple abuses of executive power, and revive the effective right to unionize under the Wagner Act.
Polls also show that drug pricing is a huge issue for voters. Democrats could propose legislation curbing excessive drug pricing in any number of ways, by changing the terms of patent protection, permitting greater promotion of generics, applying tougher antitrust standards to drug companies, or giving Medicare and Medicaid the same right to negotiate bulk pricing discounts enjoyed by the Department of Veterans Affairs. This would be another terrific bill to dare Republicans to vote against.
It's harder for Democrats to put forth an affirmative vision for the country when they are in the minority, notes Representative Jan Schakowsky of Illinois, a veteran progressive, because most of the fights are defensive. But as majority party, “We will be able to create a vision of what we could do if we had the presidency and both houses—to protect and expand Social Security and Medicare—that creates good jobs and puts people to work.”
The House majority party also has the power of the purse. If Democrats take the House, Representative Rosa DeLauro of Connecticut will chair the powerful Appropriations Subcommittee on Labor, Health and Human Services, and Education. DeLauro points out that Republicans have done a great deal of legislating via appropriations, denying funding for women's health, child-protection measures, and a whole lot more. With Democrats in charge, appropriations could be conditioned on policy reversals and reinstatements. “We can roll back a lot of the stealth privatizations,” DeLauro says.
A key question is whether Democrats in the House have the self-discipline and strategic coherence to offer a core platform.
As always, individual House members will introduce bills on a welter of topics, and the risk is that the signal gets lost for the noise. Still, that should not stop the House Democratic Caucus from agreeing to support a core package. Some candidates running for Republican-held seats are social moderates, reflecting their districts. But nearly all are economic progressives and that theme should be the glue that holds together a potentially fractious caucus.
ONE OF THE MOST POTENT powers of Congress is the power to hold hearings and conduct investigations. This doesn’t just mean investigating abuses of executive power. It means abuses of American capitalism. In the glory days when economic progressives led the House and the Senate, superb chairs of committees and subcommittees laid bare abuses that cried out for public exposure and legislative remedy.
Investigative hearings date back well over a century to the original hearings of the 1880s on abuses of economic concentration that led to the Sherman Antitrust Act of 1890, and the hearings on filthy food and bogus drugs that led to the Food and Drug Act. The famous Pujo Committee of 1912 and 1913, chaired by Representative Arsène Pujo of Louisiana, unearthed details of the money trust, and led directly to several Progressive Era reform measures, including the creation of the Federal Reserve, the Clayton Antitrust Act, and the 16th Amendment authorizing a progressive income tax.
Again in the 1930s, the famous Pecora hearings, named for House Banking Committee Counsel Ferdinand Pecora, exposed abuses on Wall Street and laid the groundwork for much of the financial reforms of the New Deal. During World War II, Harry Truman's committee on war profiteering saved taxpayers many billions of dollars and made corporate corruption a public issue. After the war, great progressives such as Senator Estes Kefauver of Tennessee, the giant of antitrust, continued the tradition of investigating economic concentration and drafting remedial legislation. In the 1960s, Congress's attention turned to the environment, as well as consumer abuses.
Often, these committees worked hand in glove with investigative reporters and public-interest advocates.
The Pujo Committee did a tandem act with the muckraking journalists of that era and social critic and future Supreme Court Justice Louis Brandeis. When Ralph Nader exposed the fact that General Motors had used private detectives to try to smear him after publication of his book, Unsafe at Any Speed, and GM executives were made to apologize, that drama played out before Senator Abraham Ribicoff’s hearings on auto safety.
For 28 years, from the mid-1950s through 1982, an otherwise obscure and not especially liberal North Carolina congressman named L.H. Fountain used his subcommittee to shed light on myriad abuses of the pharmaceutical industry, and to keep the Food and Drug Administration tolerably honest. Fountain worked closely with the legendary Mort Mintz of The Washington Post and Dr. Sidney Wolfe of the Public Citizen Health Research Group to investigate abuses, identify whistle-blowers, and inform the public.
More recently, great progressives like Henry Waxman of California, the chair of the House Energy and Commerce Committee, used Congress's investigative powers to shed light on environmental and health abuses and move reform legislation on multiple fronts. Senator Carl Levin of Michigan (see page 84) used the Permanent Subcommittee on Investigations (which was once chaired and abused by Senator Joe McCarthy) to expose corporate tax evasion techniques. Like their predecessors, Waxman and Levin worked closely with progressive organizers and investigative journalists.
Often the results of these hearings led directly to reform legislation. A parallel oversight process made sure that federal agencies were operating in the public interest. But when Republicans took over the House, first in 1994 and again in 2010, this process was thrown into reverse. When Representative Joe Barton of Texas took over oversight of the FDA, his committee used its influence to pressure the agency to expedite drug approvals. When Republican Jake Garn of Utah took the gavel from progressive Democrat William Proxmire in 1981, one result was the Garn–St. Germain Act, which allowed savings and loan associations to engage in all manner of speculative bets that resulted in the first of two S&Lcollapses.
Republicans have also relied heavily on corporate witnesses and spoon-fed corporate story lines. Under Obama, the committee hearing process was used both to harass regulatory agencies and to promote an agenda of deregulation and privatization. Oversight in the public interest dried up.
Democrats have not held the House since 2010 and the Senate since 2014. It's up to the next Democratic committee chairs to revive the great tradition of investigation of the abuses of capitalism and of the enablers of those abuses in government—and to connect those abuses both to their Republican enablers and to the pocketbook frustrations of people's lives. What has been going on in the school voucher business since Democrats last had the capacity to investigate? How have the science agencies been captured by climate change deniers? What conflicts of interest on the part of half of Trump's cabinet haven't we even heard about yet? How have fossil fuel industries taken over government regulatory agencies? What new antitrust concepts and enforcement techniques are needed to deal with new abuses of such platform monopolies as Google, Amazon, and Facebook?
AP Photo/Andrew Harnik
“A big overarching issue is corruption,” says Rob Weissman, the president of Public Citizen. “In almost every area where the administration is doing something bad, there is a corruption story that needs deeper investigation. In every case where the administration is deregulating or failing to enforce regulation—EPA rollbacks, for- profit schools, gutting the clean car initiative—the person inside the administration used to work for the industry.”
In 1998, Weissman wrote a classic piece for the Prospect on the importance of congressional investigation and oversight, titled “Hearings Loss.” “Even 20 years ago, it was a dying art,” he says. “We’ve lost a lot of institutional memory.”
Another area specific to the Trump administration that is crying out for investigation is the nexus of foreign government and state-affiliated businesses helping Trump's family in return for the administration's shifting foreign policy. “The thing they are most afraid of,” says Schakowsky, “is our subpoena power.”
We need the next generation of great progressive investigators in the footsteps of Estes Kefauver, Arsène Pujo, and Ferdinand Pecora. The House Energy and Commerce Committee could bring Henry Waxman out of retirement and hire him as chief counsel. Hearings like these set agendas, and move public sentiment. They can make it harder politically for Republicans to block overdue reform and help redeem the good name of Congress. If the political economy of American capitalism were kept tolerably honest and socially bearable for much of the middle and late 20th century, substantial credit goes to congressional hearings and their capacity to move public opinion to support reform.
WHAT ABOUT THE HOUSE leadership? There is a movement to oust Nancy Pelosi, both on grounds of age and because she is a lightning rod for shabby Republican attacks. For the most part, these attacks have gained little traction. In some districts, Democratic House candidates such as Conor Lamb, who won a special Pennsylvania House election this past March, took the Pelosi issue off the table by pledging not to vote for her.
The fact is that Republicans demonize Pelosi mainly because she is one of the most effective Democratic House leaders ever, as well as being a resolute progressive. Most incumbent House Democrats are very loyal to her. When Ohio Democratic Representative Tim Ryan mounted a challenge to Pelosi for the leadership in 2016, advertising himself as a young, socially moderate white male from the Midwest, Pelosi defeated Ryan, 134 to 63. Support within the caucus for dumping Pelosi has not increased since then. Some 40 Democratic contenders have taken the pledge to oppose Pelosi. But if you do the arithmetic, 40 plus 63 is still far less than 134, and many newly elected Democrats will support her.
A related problem for Pelosi's challengers is that there is no obvious candidate to succeed her. If the point is to feature youth, the other ranking members of the House leadership are of Pelosi's generation. Steny Hoyer, the Democratic whip, is, at 79, older than Pelosi. Jim Clyburn, the assistant Democratic leader and senior African American in the leadership, is 78. Others have signaled their interest in possibly running to succeed Pelosi, but it is hard to imagine a consensus candidate emerging. As more and more women take House seats, there will be also be reluctance to dump the top female Democrat. So Pelosi likely has the votes to be elected speaker—a good outcome since the Democrats need to hit the ground running.
THERE IS ALSO THE QUESTION of impeachment. A lot of commentary in the press has held that Democrats would be wise to steer clear of impeachment. CNN and Quinnipiac have found support for impeachment at around 40 percent. Trip Gabriel, in a feature piece in The New York Times in late August, warned:
A chasm has opened in recent days between Democratic voters, who want to see Mr. Trump impeached or held to some political accounting, and Democratic candidates and strategists nationally, who view the “I word” as a red cape that will inflame the Republican base and possibly hurt their chances of taking control of the House.
The advice to damp down impeachment fever makes sense on the campaign trail where there is risk of bringing out Trump voters. But if Dems do indeed take back the House, sooner or later they will find that an impeachment inquiry is unavoidable. But it's all in the timing. Impeachment should not come first. It should be the end game.
Sometime this fall or winter, Robert Mueller will tender some kind of report. What's already on the public record includes enough evidence of obstruction of justice and sufficient violations of the Constitution's emoluments clause to impeach Trump. We don't yet know how much more Mueller will reveal about Trump involvement with the Russians to steal the 2016 election, or the connection to longstanding Russian bailouts of failing Trump family business, but there is good reason to believe that further details will be telling.
Trump doesn't even bother to conceal his attempts to obstruct justice.
It's Trump who has been brandishing the red cape. His repeated demonization of Attorney General Jeff Sessions, including his startling complaint about Sessions having allowed criminal investigations of two Republican congressmen that will damage their re-elections, is a pure call to subordinate the administration of justice to partisan needs.
Republican Senator Ben Sasse of Nebraska, nobody's idea of a liberal, spoke for senators of both parties when he said:
The United States is not some banana republic with a two-tiered system of justice—one for the majority party and one for the minority party. These two men have been charged with crimes because of evidence, not because of who the President was when the investigations began. Instead of commenting on ongoing investigations and prosecutions, the job of the President of the United States is to defend the Constitution and protect the impartial administration of justice.
Trump's violations of his oath of office already exceed those of Richard Nixon. Other investigations by congressional committees are likely to reveal even more damning information. As evidence accumulates, public sentiment shifts. Given Trump's extreme abuses of his office and the fact that impeachment is the prime constitutional remedy for ousting a lawless president, it would be a dereliction of duty for the House to fail to pursue impeachment—but only when impeachment is ripe.
The strategic mistake would be to open a formal impeachment inquiry early in the new session. It makes far more sense, substantively and tactically, to allow other congressional investigations to proceed first, let the damning evidence pile up, and only then begin a formal impeachment process. In Watergate, the process took two full years. The break-in at DNC headquarters occurred in June 1972. Woodward and Bernstein began unearthing details in September of that year. The Senate Watergate Committee under Sam Ervin was created in May 1973. Judge John Sirica turned over sealed indictments of top Nixon aides to the House Judiciary Committee in March 1974, and the official impeachment process began only in May. The House voted articles of impeachment in July, and Nixon resigned in August.
But wouldn't it be a fool's errand if the House voted impeachment but Republicans kept control of the Senate? I don't think so.
The impeachment process itself would produce more and more damaging detail. Even more than Nixon, Trump is likely to commit further abuses of office in his attempts to cover up what has already occurred or to block efforts to ferret out the facts. As this process unfolds, Trump is likely to become more and more radioactive, and the damage to him will be cumulative. A sizable number of Republican senators, not just those up for re-election in swing states in 2020 or 2022, would seriously consider voting to convict. Others, in safe seats, like Ben Sasse, would consider voting to convict Trump either out of sheer disgust or tactically, to allow the Republican Party to regroup under a new president and nominee for 2020.
THE MOST IMPORTANT contribution a Democratic House could make would be to help lay the groundwork for a governing agenda in 2021. The conventional assumption has been that conservative control of the courts will drastically limit what a Democratic administration could do, even if a Democratic president has control of the Senate as well as the House. But my conversations with several legal scholars suggest that this assumption is too pessimistic.
Despite the penchant of the Roberts Court for inventing wholly new constitutional doctrines to serve conservative ideological ends and then claiming original intent, many avenues of legislation are still available. Consider health care. The complex public/private nature of the Affordable Care Act gave the Court an opening to claim that it violated the Constitution's Commerce Clause. But no court has come remotely close to challenging Medicare. A straightforward expansion of Medicare would be both good politics and fairly immune to Court reversal.
The Prospect has run several articles on how tortured court interpretation of the Federal Arbitration Act has permitted corporations to require employees to sign away rights guaranteed under myriad other laws as a condition of their employment. But this is not a constitutional issue. A straightforward revision of the act would make clear that this use is not Congress’s intent, and would explicitly bar corporations from using mandatory, rigged arbitration to override other statutory protections.
Similarly, a string of high court cases since the 1980s has neutered antitrust enforcement by adopting the Chicago-economics view that if price increases cannot be demonstrated, concentration and even extreme market power—as in the cases of Google, Amazon, and Facebook—do not raise antitrust issues. But there is nothing to prevent Congress from redefining the nature of an antitrust abuse. This is also statutory, not constitutional. Once again, the value of this legislation is not just to anticipate an agenda for a Democratic win in 2020, but to help bring that about by exposing connections among Republican dogma, Republican corruption, and corporate corruption, and to move public opinion.
“If we do our jobs correctly,” says Robert Creamer, a longtime Democratic strategist, “Donald Trump will not be remembered as the most misogynist, bigoted, unqualified, dangerous, and corrupt president ever. He will be remembered as the president who caused a backlash of such ferocity that it ushered in the greatest era of progressive reform in modern American history.”
