After We Win in November, What Happens Then?

Political Notes

by Jon Fuhrman

Wednesday, September 9. As Republicans gather today and tomorrow in Dallas for their mid-term convention (aka All Praise Donald Trump), Democrats are not so quietly awaiting the November elections and our anticipated takeover of both the House and the Senate. But what will that mean practically?

We’ll have Democratic Chairs of all the Congressional committees, oversight and investigative hearings, legislation passed, all of which sounds great. But, in truth, we need to temper our expectations. President Trump will still have the veto power, and no matter the size of the blue wave in November, we won’t get close to a 2/3 majority in each House. So Democratic legislation will be going nowhere. Democrats might be able to slip some corrective language to counter the worst of the Republican abuses into what are traditionally considered “must pass” legislation, like appropriations bills, but even with those, the President is likely to take a hardball approach and be willing to shut down the government rather than accept Democratic language or budget priorities.

Further, oversight and investigative hearings work only if Administration officials feel some measure of guilt or embarrassment when their misconduct is revealed. My guess is that their playbook will be simply to obstruct, impede or ignore Congressional attempts to call them to account. They will continue to deny Congressmembers access to ICE detention sites. They will refuse Congressional demands for documentation or information. They may even simply refuse to show up for hearings. Citing them for contempt of Congress works only if there is a Justice Department willing to prosecute those offenses. If the Justice Dept. won’t prosecute, then there are no repercussions to simply blowing off Democratic demands.

Another tactic the President is likely to employ, with the tacit assistance of Congressional leadership, is a raft of “recess appointments.” These recess appointments allow the President to place nominees in office without the normally required Senate confirmation, because the Senate couldn’t act while it was “in recess”. These appointees can remain in office if they are eventually confirmed by the Senate or until the end of the following session of Congress, which in this case would be until January 2029.

The original theory for this Constitutional “loophole” was that Congress (including the Senate) often adjourned for months at a time, during which time the President needed to keep the government working, and therefore needed a mechanism temporarily to fill critical positions. It was never intended to be an “end-run” around the confirmation process, but not surprisingly, Presidents often used it for exactly that purpose.

In 2014, the Supreme Court brought some clarity to this process by defining what a “recess” is. The Court ruled that a recess has to be at least 10 days long, a period long enough to require explicit consent from both Houses. But with Republicans in charge, the Congress could indeed declare a 10-day “recess” over the December holidays (instead of following the current practice of having “pro-forma” sessions at least once every three days, designed explicitly to prevent Presidents from using temporary Congressional vacations as a pretext for recess appointments). That 10-day holiday recess would give President Trump the pretext he needs to scatter his appointees across all the government departments, independent agencies, Federal District and Appellate courts.

The original understanding of this process was that after the recess, the President would submit the nominees holding recess appointments to the Senate for confirmation. If approved, they would continue in office; if disapproved, they would then leave office. However, that assumes the President submits their nominations to the Senate. If the President chooses not to submit those nominations, it’s not clear to me whether the Senate, on its own, can initiate a vote to confirm or deny confirmation. Those recess nominations could be in limbo until the end of the following session, and we could be stuck for two years with all sorts of whack-a-doodles in offices of considerable importance (like the US Attorneys whom the President nominated but never brought to the Senate for a vote, because they would never have been confirmed).

So even with a wildly successful midterm election, we need to set our expectations fairly low. When we have a President happy to defy norms and trample precedent and act virtually unilaterally, the ability of all the other branches of government to provide checks and balances does fade into the distance.

In truth, the real excitement may move from Washington to individual state capitals. In multiple states, we’re looking at a real possibility for Democratic trifectas – Democratic control of both the Governorship and both houses of the state legislature. This would make possible fundamental changes in state laws and possibly even state constitutions, permanently locking in things like reproductive freedom, redistricting reforms, workers’ rights, minimum wage reform and stronger support for local schools.

In Pennsylvania, we’re likely to see Democrats take control of the State Senate, to give Gov. Josh Shapiro a Democratic legislature. In Michigan and Minnesota, Democrats are likely to regain control of both Houses and retain a Democratic Governor. In Wisconsin, we’re likely to retain a Democratic governor and have a real shot at winning a majority in both Legislative houses. In Nevada, we’re likely to see a Democratic governor, and in Arizona we have a strong chance not only to re-elect the Democratic Governor but to take control of both Houses.

In other states, like Iowa, Georgia, Ohio, Texas and Florida, we have a shot at electing Democratic Governors, although they will likely have to contend with hostile Republican-controlled legislatures (although in Ohio and Texas, we actually have a chance at taking control of the lower house of the legislature).

With those trifectas, we’ll see real Democratic legislative advances, and even states with just control of the Governorship, we’ll see the ability of Democrats to fight back against the worst of the Republican initiatives (as well as see those Governors appoint quality judges and state department heads).

Furthermore, these Governors will be up for re-election in 2030, in anticipation of the next round of reapportionment for Congressional and state legislative seats. These are critical power points for the next decade, and Democrats will likely be far better positioned than we were in 2010.

So on November 3, don’t just watch the national results. Keep a close eye on Governorships and state legislative races. That may be where we really are able to effectuate lasting change.