Democrats on Defense: How to Derail the Republican Agenda

When President-elect Donald Trump takes the oath of office in January 2017, the Democratic Party will officially find themselves in the political wilderness. Stripped of the White House and unable to capture a majority in either the House of Representatives or the Senate, the party of Kennedy, Clinton and Obama will have to figure out not just how to survive, but to thrive without any control over the levers of power in Washington. 

There are certain political realities that one has to accept. First, Democrats will not have an opportunity to reclaim the White House until 2020, so the Trump administration will set the agenda unless Democrats can make significant gains in the 2018 congressional elections.

Second, Republicans in the House of Representatives will dictate the priorities, pace and passage of legislation. A simple majority prevails in that chamber, so there is nothing House Democrats can do to stop them. 

Third, the 51 seats controlled by Republicans in the 100-seat Senate means that all committee chairmen and the floor schedule will be determined by Majority Leader Mitch McConnell. 

So with two years until the mid-term elections, can the Democrats do anything to thwart the Republican agenda? Their only hope is in the Senate, where Democrats hold just enough seats to give them a fighting chance.

If a senator, regardless of party affiliation, objects to a piece of legislation being brought to the floor, he or she can place a "hold" on that bill. This would be a signal to the majority leader that if the disputed legislation is brought to the floor, it would face a series of delaying tactics by the Democrats.

Imagine a scenario in which Mexico declines to pay for a wall on its northern border with the United States. In such a case, the House and Senate could introduce legislation instructing the Department of Homeland Security to construct the wall, and Congress would ultimately have to appropriate the funds to do so. 

The House would likely pass the measure on a party line vote.  But when it reaches the Senate, a Democratic senator could put a hold on this bill. It will then be up to Senate Majority Leader McConnell to decide if he wants to spend the political capital necessary to combat, and try to overcome the Democrat's obstacles, or if it would be more sensible to shelve the contentious bill and pursue other priorities.

Continuing the hypothetical example of the border wall, assume that the majority leader decides to call the obstructive senator's bluff, and brings the legislation to the floor in spite of the hold. The Democrat would have two choices: allow the Senate to consider the bill and vote "no," or filibuster. 

The filibuster is a 200-year-old Senate procedure that was initially introduced to guarantee that the voice of the minority party would be heard prior to a vote on any issue. It has evolved, however, as a tool that members can use to delay the business of the Senate. It was used sparingly in the years following its inception, but has become more popular as Washington becomes increasingly polarized. In fact, it has been utilized more than 600 times since 2000. 

This method requires a senator to hold the floor by speaking continuously on any particular topic until the opposition can muster 60 votes to end the filibuster, or the majority concedes and withdraws the legislation from the floor. The late Senator from South Carolina, Strom Thurmond, holds the dubious distinction for longest filibuster in history (24 hours, 18 minutes), by attempting to derail the Civil Rights Act of 1957.

The filibuster is a legitimate tactic that the Democrats have at their disposal. It also comes with the added benefit of drawing media attention, and the public ire, on issues that typically fly below the radar. But like the hold, the filibuster has its limits. If the filibustering Senator can maintain his or her stamina without ever yielding the floor, the only way to break a filibuster is by invoking cloture.  

In the House of Representatives, the Rules Committee sets the time limits for debate, so there is a finite period of discussion before members must cast their votes. In the Senate, however, there are no time limits, so the only way to end the debate is to invoke "cloture."

As mentioned above, cloture can only be achieved by a super-majority of 60 votes. Given that the current composition of the Senate has 51 Republicans, 47 Democrats and 2 Independents (both of whom caucus with the Democrats), the Republicans would need to find nine votes across the aisle to break a filibuster – an extremely difficult task in the current climate. 

Whether the Senate is considering Supreme Court nominees, repealing the Affordable Care Act (Obamacare) or banning Muslims from the United States, if Democrats can maintain party unity, they can effectively spend the next two years stifling the Republican agenda.

Should the Republicans grow tired of Democrats' obstructionism in the Senate, they have one final card to play. The so-called "nuclear option" would change Senate rules to cut off debates or filibusters with a simple majority of 51 votes.  So as long as Republicans enforced strict party discipline, they could push through any measure they desired. The Democrats triggered the nuclear option in 2012, but limited its application to certain judicial and executive nominations that had been stalled by Republicans.

Senate Majority Leader McConnell has indicated that he would prefer to avoid the nuclear option if possible. He has sensibly warned his party about policy overreach and the need to work on a bipartisan basis. McConnell is also acutely aware that the Republicans are one election cycle away from being back in the minority, so he is cautious about setting future precedent.

Although the 2016 election was catastrophic for the Democratic Party, the tactics outlined above provide a glimmer of hope. The United States prides itself on having an intricate system of checks and balances to protect all of its citizens from legislative overreach at best, and tyranny at worst. Democrats need to spend this period of transition reflecting on the state of the party and making appropriate course corrections. But come January 2017, they will have to put this loss behind them, and prepare to play defense. It is the only path they have left.