When Donald Trump is sworn into office in January, he will find himself in a similar position to that of President Barack Obama in his first term. With Democrats controlling both chambers of Congress, Obama pushed through a series of reforms—Obamacare, the Dodd-Frank Act, the Recovery Act, and more—that changed the political landscape. He did it over the nearly unified opposition of the Republican minority, which was able to thwart some of Obama’s efforts and at the very least deny them a patina of bipartisanship. The tactic paid off, poisoning Obama’s legacy in the eyes of many voters, bleeding his political capital, and fueling a years-long backlash that Trump has now ridden to the White House.
The only people that now stand between Trump and a complete overhaul of the Obama era are the 48 Democrats in the Senate. “Unified party control tends to yield more productive Congresses, but it’s not a magic bullet,” says Sarah Binder, a political science professor at George Washington University. “There are ways, especially in the Senate, in which a dedicated minority can block a ruling party.”
Over the past eight years, the GOP wrote the playbook for obstructionism in the Senate, over the howls of Democrats and proponents of good governance. Democrats have struggled to pass budgets and get executive and judicial appointments filled, including Merrick Garland’s nomination to the Supreme Court. The irony is that if the Democrats want to safeguard the gains they have made in the last eight years and prevent diehard conservatives from controlling the Court, they will have to use that very playbook themselves.
The biggest items on the Republican chopping block are Obamacare and the Wall Street regulations contained in Dodd-Frank. Both the populist and establishment wings of the party want to repeal those laws, and Republicans should have no problem standing united on that front. On Wednesday, Senate Majority Leader Mitch McConnell was already signaling that his party would move to repeal Obamacare as soon as Obama left office.
Even if Democrats oppose the move, Republicans may be able to skirt them. Parts of the Affordable Care Act were passed using a technique called budget reconciliation—a maneuver that would allow the Republican-controlled Congress to bypass a potential filibuster by Senate Democrats. According to William Galston, a senior fellow at the Brookings Institution, Republicans may now do the same when they try to repeal it. Indeed, the Republican Congress did just that in January, sending a repeal bill to President Obama’s desk.
However, there is no guarantee that the Democrats can remain united in defending Obamacare. Vulnerable Democrats in red states, in particular, may be inclined to cooperate with Republicans to deal with the fallout from a rising cost in health care premiums. This gets to one of the big differences between Democrats and Republicans when it comes to an opposition strategy: The GOP could remain united because the Senate is structurally tilted in favor of rural, conservative states, giving Republicans little incentive to side with Obama. To win in those states, however, Democrats may feel the need to work with a President Trump.
Democrats will likely have better luck defending Dodd-Frank, with Wall Street being as unpopular as Congress these days. But they may be unable to withstand the onslaught of tax cuts that Trump and his fellow Republicans intend to pass, rolling back even the meager tax hikes that the Democrats were able to levy on the richest Americans.
The Senate Democrats will probably attempt to filibuster whichever conservative judge Trump ends up choosing to fill Antonin Scalia’s shoes on the Supreme Court, prompting the inevitable Republican claims that the Democrats are hypocrites. After all, less than a year ago, Minority Leader Harry Reid was railing against the Republicans for their “premeditated obstruction” of Obama’s Supreme Court nominee. Now, the new Democratic leader may have to return the favor to jam up the Republican agenda, on the grounds that the dysfunction and gridlock introduced by Republicans have become the governing norm.
The debate could provide the Republicans the ammunition they need to end the filibuster altogether. As Jonathan Chait has pointed out in New York magazine, the legislative maneuver, created by Aaron Burr in the confusion over Senate rules in 1806, was weakened during the Obama administration. In September, Reid told New York Times reporter Carl Hulse that his party might eliminate it if they reclaimed the Senate. Republicans are already thinking about it now.
Democrats could gain from legislative priorities that pit Trump against his fellow Republicans. Trump has laid out a plan to spend hundreds of billions—more than $550 billion,
according to some estimates—to
revamp crumbling bridges and roads across the country. That could prompt
opposition from Republican budget hawks in Congress.
Trump may also butt heads with congressional Republicans in other areas. He has said that on his first day in office he would name China “a currency manipulator,” implementing a 45 percent tariff on Chinese imports. Most Republicans in Congress, many of whom were elected with help from the Chamber of Commerce, support free trade and would likely oppose this. Should he pick those battles, Trump will encounter a Congress far less willing to be a rubber stamp on his agenda. “That will be quite an adjustment for someone who spent his career as a CEO, without the separation of powers,” Galston says. “We have no idea what his governing style is going to be. But we know what happens when things go against him: He tends to lash out and pit himself against others.”
The safest and best course, naturally, would be for Democrats to win back the Senate in 2018. There is some hope that could happen. According to Binder, unified governments tend to overreach, reading their “mandates” as a blank slate to implement sweeping legislative reforms. In the end, it often comes back to bite them, as Democrats who lost their seats in the 2010 Republican wave can attest.
Still, in the scenario of an overreaching Republican Senate, the damage will have been done. And Democrats would still only have a slim chance of winning back the chamber. Two years from now, the math looks dismal for the Democrats. The party will be defending 25 seats, including five in bright red states: Indiana, Missouri, Montana, North Dakota, and West Virginia—all of which broke for Trump this time around. It would need to win every single one and then flip three additional Republican seats, in a year when only Arizona and New Mexico look like they could conceivably be up for grabs.
The prospect of having to fight for all those seats is even more daunting in a midterm election year. Democrats have long struggled to turn out their base in off years. These days, young voters especially are moving around more than ever before, making it tough for the mammoth Democratic field operation to track them down and turn them out in off years. In fact, it’s highly possible that Republicans will broaden their majority in the Senate. In 2018, low turnout could endanger Democratic senators up for reelection in Wisconsin, Ohio, Pennsylvania, and Florida, which have long been tough terrain for the Democrats in midterms. And Clinton lost those states this year.
The dismal political landscape in 2018 threatens the opposition efforts against Trump. Endangered moderates up for reelection will be hesitant to stand up to a congressional agenda handed down from the White House. Consider the tax reforms or environmental policies that Trump is likely to introduce: A Democrat like Joe Manchin will have every incentive to go along, because the Republicans would otherwise launch attack ad after attack ad against him in West Virginia, a state where almost 70 percent of voters backed Trump.
Mitch McConnell, you can be sure, will be sketching out an agenda designed to force these endangered Democrats to make excruciating votes over the next two years. It increases the likelihood that he can pick them off one after the other, expanding his Senate majority two years from now. It also means we can expect few proposals designed to attract bipartisan support. Don’t expect Senator Pat Toomey to introduce measures to create new background checks for gun buyers, or for Senator Marco Rubio to take another stab at immigration reform.
Can 48 Democrats in the Senate hold out long enough to ensure that at least some of Obama’s legacy remains in place? They can try, but it won’t be pretty.