Indivisible on Offense: New Congress, New Indivisible Strategy

What does it mean to control the House? What are the new opportunities for House Democrats, and what are the limitations? Most important, what should Democrats do now? We lay out how Democrats should use their new tools to resist the Trump agenda.

In Chapter 1, we cover:

1. Section 1: What’s this new “agenda-setting power” thing?

2. Section 2: Legislative offense

3. Section 3: Offense through oversight, accountability, and investigations

4. Section 4: Don’t forget about defense

Section 1: What’s This New “Agenda-Setting Power” Thing?

During Trump’s first two years in office, few tools were available to progressives to fight back against the racist, xenophobic, sexist Trump agenda. With control of both the Senate and the House, Republicans were the only ones with the power to decide what legislation came up for a vote. That gave them what we call “agenda-setting power”.

The only thing Indivisibles could really do to stop Trump and the GOP was play defense: pressure Members of Congress (MoCs) into voting against legislation that Republicans  were trying to pass, and to slow down things as much as possible. In most cases, this required holding all Democrats and flipping some Republicans — a tall order.

With control of the House, Democrats have partial agenda-setting power — and with that, they have fun new tools available to them.

Defining What Congress Works On

So, what’s agenda-setting power? On a practical level, agenda-setting power is the ability to pick the list of things that Congress will work on. Those who have a majority in the House or Senate decide what goes on that list. But agenda-setting power involves more than just items on a legislative calendar. It’s also the power to shape the national discussion, focusing attention from press and the public on one’s preferred issues.

For the past two years, Trump and Republicans have had full agenda-setting power. And this is what they’ve prioritized:

• Providing massive tax cuts for corporations and the wealthy

• Repealing the Affordable Care Act (ACA) and gutting Medicaid

• Criminalizing, caging, and deporting immigrants

• Deregulating Wall Street banks

• Limiting access to abortion rights

• Wholesale deregulation, from the environment to the internet

• Escalating wars and banning people from other countries under the guise of “national security”

Now, House Democrats choose what gets attention. With control of the House, Democrats can partially decide what Congress works on and what Americans are talking about — a monumental shift with new opportunities but important limitations.

If used effectively, the Democrat-controlled House agenda will draw a stark contrast with the Republican-controlled Senate agenda. The national discussion that follows legislative activity will lay out a choice for the American people: shared economic prosperity vs. concentration of power and wealth. Striving toward inclusion and equity vs. embracing racism, xenophobia, and misogyny. Peace and real security vs. warmongering and chaos. This contrast will set the stage for the 2020 elections — but it starts with the House in January 2019.

But partial agenda-setting power doesn’t mean Democrats can actually get legislation into law. While control of the House opens up new opportunities, we have to also understand the risks and limitations of this new state of play. Most important, of course, Democrats can’t unilaterally enact laws. We can safely assume that the vast majority of good legislation passed in the House will die in the Republican-controlled Senate. Plus, we would still need Donald Trump to sign any bill that clears Congress in order for it to become law.

In addition, Democrats will face pressure to “play ball” with Trump — which could be dangerous. Democrats in the incoming Congress are going to be under a lot of pressure to cut deals and show that they’re reasonable and can “work” with Trump. Instead of blocking Republican priority bills or passing progressive bills out of the House, Democrats could decide to cut bad deals with Trump. Remember, in the past year alone, Democrats joined Republicans to deregulate Wall Street, to confirm a torturer to lead the CIA, and to confirm a climate-denying Islamophobe to lead the Department of State.  We simply cannot take for granted that Democrats will stick together on important votes. Historically speaking, Democrats are much less likely to vote as a unified group than Republicans are.

That means Democrats will continue to need our help stiffening their spines. We’re not going to mince words: Cutting deals could harm Americans and help Trump win re-election. Why? First, Trump is a radical right-wing extremist. Deals with him will invariably involve threats to the things we care most about. The past two years have made clear that Trump wakes up every day thinking about how he can hurt vulnerable communities like immigrant families, and how he can loot the government for his and his cronies’ benefit. Deals — for example, an infrastructure bill that enriches Trump while funding a wall — will only further endanger the things we care most about.

But the biggest reason that cutting deals is so dangerous is this: It reinforces the idea that Trump is a normal president capable of governing well, instead of a clear danger to our democracy. Presidents generally get credit for major legislative victories, and Trump will use a win to make the case to voters that he can get things done, that he can work across the aisle, that he can govern, and that he should be re-elected. We know these things aren’t true, and we know that any legislation terrible enough for him to accept is dangerous, so why would we help him out?

That is the danger and the risk that we need to protect against, and it starts with constituent pressure to make sure that Democrats not only don’t cut bad deals with Trump, but instead go on offense to protect and advance our values.

Section 2: Legislative Offense

After two years of playing defense, we finally get to go on offense against Trump’s disastrous legislative agenda. So in this section, we dive into the two legislative opportunities that House Democrats now have:

1. Messaging bills: What they are, and why Democrats should pass them.

2. Must-pass bills: How to leverage these opportunities to get real concessions and push our values.

Legislative Offense Strategy #1: Messaging Bills

Messaging bills demonstrate what Democrats stand for. One of the best ways for Democrats to signal to voters and to progressives what they will prioritize should they retake Congress and the White House in 2020 is to pass ambitious, progressive legislation in the chamber where they have power now.

Most of these won’t become law immediately, since they’re not going to pass the Senate. But that’s not necessarily the point — we’re in this for the long game.

The value of passing messaging bills is that they:

1. Present an alternative vision for the country. We can’t emphasize this first reason enough. Trump’s America is racist. Trump’s America is corrupt. Trump’s America is sexist. Trump’s America is inhumane. Voters need to see that there is an alternative to Trump’s America.

It’s the job of Democrats to repudiate Trump’s agenda and show them what that alternative vision is. It’s the job of the grassroots — all of us — to make sure that they do. We can’t win in 2020 if we fail to do this.

2. Get Republicans on the record on key issues. A single vote can haunt an MoC for years. (Think of Senator Hillary Clinton’s vote to go to war in Iraq.) There are issues that are incredibly popular with voters, like access to health care and relief for Dreamers. Getting Republicans to vote against the interests of their own constituents will help us get them out of office in the next election.

3. Lock MoCs into a position. By voting in favor of a messaging bill that they know won’t become law, MoCs are significantly more likely to vote for the same bill later when there is a real chance of getting it signed into law. A good example of this is Republican efforts to repeal the ACA. After voting to repeal dozens of times (when they knew that repeal wouldn’t become law), dozens of Republicans continued to feel overwhelming pressure to vote for ACA repeal (“TrumpCare”) even though the bill was historically unpopular.

4. Settle policy debates and define the party’s agenda. If you want legislation enacted in 2021, with unified progressive control of Congress, you need messaging bills in 2019 or 2020. Once a party passes a messaging bill, it often becomes the party’s default policy proposal going forward — and part of the package of bills that party members turn into law once they’re back in power. It was no surprise that the last Republican Congress prioritized ACA repeal, tax cuts for the wealthy, and deregulation of Wall Street — it passed these same things as messaging bills under Obama.

Here’s what Your MoC can do to advance messaging bills:

Your MoC can introduce a bill that leaders won’t. Any Member can introduce a bill. If there is an issue that you care about that isn’t being addressed, your MoC has the power to introduce a bill that will address it. You can use the tactics described in Chapter 2 to pressure your MoC to do it, and to show leaders that they should be doing more.

Your MoC can also co-sponsor existing messaging bills. When individual MoCs introduce legislation, they can do it for themselves as well as with the official support of other MoCs. After they introduce the bill, new MoCs can sign on as co-sponsors at any time. Take this random bill, introduced by Conor Lamb: H.R. 7086, the Tax Fairness for Workers Act. When the legislation was officially introduced, it says right up at the top that Lamb, a Democrat from Pennsylvania, introduced it with several other MoCs (look at all those names!). This is a messaging bill. There is zero chance it gets enacted in the 115th Congress. But several Democratic MoCs signed onto the idea by co-sponsoring the legislation.

So why does co-sponsoring matter? The Speaker of the House like to be sure that any high-priority bill that goes to the House floor will pass. Having a priority bill fail on the floor is a sign of weakness. That’s why getting co-sponsors on bills is so important: The more people who sign on, the more likely that leadership queues it up for a vote, and the more likely it is to pass once it reaches the floor. Bills in the House sometimes have hundreds of co-sponsors, including Members from both parties. Lamb and his co-sponsors are signaling support for the ideas in this legislation, and they’ll probably introduce the bill again next year and try to get more co-sponsors.

Running up the number of co-sponsors on a bill also demonstrates consensus among the Democratic caucus. We want progressive bills that advance our values to have more co-sponsors than more moderate versions of the same thing. This demonstrates that the “center of gravity” in the caucus is further to the left. Often the version of a bill with the most co-sponsors is the one that will become the party’s default position.

If your Representative isn’t co-sponsoring a bill that you like, you can tell them to get off their butts and co-sponsor it - there’s nothing stopping them. You can find free information on co-sponsorship at GovTrack.us. There you can find the legislative text, relevant committees, which Members have co-sponsored and when they did so.

Legislative Offense Strategy #2: Leveraging Must-Pass Bills

Must-pass bills are those that … must pass. Unlike the thousands of messaging bills that get introduced every year, there are some bills that Congress have to pass every year. The most common of these are government funding bills, which are needed to prevent a government shutdown. But there will be other bills that must pass, like those extending authorization for important programs.

Since Republicans still control the Senate, they need some Democratic votes to pass these bills, and each of the "must-pass bills" presents an opportunity for Democrats to extract important concessions in exchange for their votes, or to protect against more bad stuff from getting through.

The Tea Party used must-pass bills to get big concessions. There is an enormous amount of pressure on the majority party to get a must-pass bill through, which means its members will negotiate if necessary in order to get it done. Just as important, party leaders understand that it’s better to negotiate with members of their own party than those of the opposite party. This creates an opportunity for relatively small voting blocs to get big concessions from their leadership. That is exactly what the Tea Party has done through the Freedom Caucus.

Voting blocs hold power. The most valuable currency in Congress, of course, is votes. You either have them or you don’t. Sometimes party leaders have to work hard to get the magic number they need to pass a bill or confirm a nominee. When that happens, a small number of MoCs willing to stick together can negotiate for better terms in exchange for their votes. That’s what the Freedom Caucus does.

If you have a progressive MoC, this is an opportunity. There is an important role for reliably progressive MoCs from safe districts or solid blue states to play here. They can work with their colleagues to get some crucial concessions from leadership on must-pass bills. A small group of progressives willing to vote no on must-pass bills that Democratic leadership needs to pass gives them leverage, if they’re willing to use it.

For example, a progressive voting bloc could refuse to vote for a Department of Homeland Security spending bill that contains increases in funding for ICE (Immigration and Customs Enforcement) or CBP (Customs and Border Protection). By doing so, a progressive voting bloc could leverage its votes in order to prevent additional funding for the tearing apart of immigrant families.

Leverage works only if you’re willing to use it. Every must-pass bill involves some level of horse-trading. But the only way Democrats will be able to extract anything meaningful from Republicans — and for progressives to extract anything meaningful from Democratic leadership — is if they’re willing to vote against a must-pass bill if it contains harmful provisions or doesn’t contain provisions that progressives want. To be clear, we’re not talking about cutting deals here; we’re talking about using power to demand that progressive values are protected.

We can expect certain must-pass bills in advance, but not all. It’s impossible to predict with certainty what Congress will work on, or when. Legislative priorities can shift quickly because of political circumstances or other national imperatives. But there are a few must-pass bills that come up every year, or that are due next year. In the next Congress, they are:

• Government spending bill(s): Every year, Congress is required to pass a new spending bill by the end of the fiscal year, on September 30. It rarely does, and instead often passes short-term spending bills known as “continuing resolutions.” Each of these spending bills is a must-pass bill because it is needed to avoid a government shutdown. (These will come up around September 30 and any time a CR is expiring.)

• The National Defense Authorization Act, or NDAA: This is the annual military funding bill that Congress normally passes through the House in the spring and in the Senate in late summer or fall. (The bulk of the work on this bill usually happens over the summer.) Because this is a large bill that both parties feel lots of pressure to pass, it is a vehicle for lots of amendments and extra debate.  

• Debt Ceiling: The debt ceiling is a limit set by Congress on the amount of debt that the U.S. Treasury can issue in order to cover costs already racked up. Congress has to do this in order to avoid defaulting on our obligations and throwing the global economy into chaos. Now, we’re certainly not advocating for holding the debt ceiling hostage. The key thing to remember is that the process will require negotiations between Republicans and Democrats and making sure the progressives are ready to defend against bad deals will be important.

Section 3: Offense Through Oversight and Investigations

For two years, the Republican-controlled House, Senate, and White House have covered for each other rather than holding each other in check. With Democratic control of the House, it’s a whole new ballgame.

In this section, we’ll cover how Democrats can and should use this new power:

1. What oversight is, and how we can use it

2. The power of subpoenas

3. What about impeachment?

Oversight: What Is It, Who Does It, and How Can We Use It?

We know that the Trump administration is corrupt. We know that it continues to abuse its power across the government. We just don’t know to what extent. One of the best ways to find out — and to hold officials accountable — is through congressional oversight.

All Democrats have the power to hold Trump accountable in some way, whether it’s through subpoenaing witnesses or information, holding hearings, or conducting investigations. Every MoC sits on at least a couple of congressional committees. Those assignments will determine the specific subject matter over which they have oversight authority. As a result, all Democrats can question, subpoena, and investigate the Trump administration in some way using their new power in the majority. This table lays out which committees have oversight authority over which parts of the government:

Here’s how to use the table: Let's say your MoC is on the Financial Services Committee. As you can see, that committee oversees the Department of Housing and Urban Development. So if you were concerned about the $31,000 that Secretary of Housing and Urban Development Ben Carson spent on a dining set for his office in 2017, you can tell your MoC that she should demand that her committee investigate this misuse of public funds. Just ask her: “Will you commit to opening an investigation into Ben Carson’s misuse of public funds to purchase a $31,000 dining set?”

Democrats can use oversight hearings and subpoenas to shine a light. House Committees (led by the committee chair) can call oversight hearings whenever they want. That’s the benefit of being the majority and having agenda-setting power — hearings are part of the agenda. Committees can also force witnesses (including administration officials) to appear at these hearings and answer questions, because committees have subpoena power.

Democrats can and should ask tough questions in committee hearings. These hearings with witnesses are another opportunity for your MoC — Members take turns asking questions —  to press the administration on conflicts of interest, wasteful spending, or any other questionable activity. Good MoCs avoid pontificating and instead ask direct, pointed question of the witnesses, forcing them to fill the given time and putting them on the record responding. (We discuss in Chapter 2 how to ask your MoC to do this.)

Bring on a formal congressional investigation. Formal congressional investigations are a form of oversight that happens over a longer period of time. Committees can conduct an investigation into any matter that falls within their jurisdiction, assuming they get the investigation authorized by a vote in the full House. There is even a specific panel, the House Committee on Oversight and Government Reform (HOGR) whose entire job is to conduct oversight. Remember the investigation into the IRS’s allegedly aiming extra scrutiny at conservative tax-exempt organizations? That was HOGR. The original Benghazi investigation in the House? Started with HOGR. Democratic MoCs who sit on HOGR have an even more important role to play in oversight.

Republicans weaponized their investigatory authority to look into frivolous or exaggerated scandals for their own political objectives. In contrast, Democrats have a wealth of real scandals that need to be investigated — and they must use their investigatory authority in a responsible way to expose the worst of the Trump administration. Here are just a few examples of investigations that Democrats should pursue using this authority (there are many):

• The response to and aftermath of Hurricane Maria in Puerto Rico

• Personal conflicts of interest between Cabinet secretaries and the industries their departments allegedly oversee

• Immigration agencies and the family separation policy

• Deliberate sabotage of the Affordable Care Act by the Trump administration

In addition, a department dealing with a congressional investigation has to devote enormous resources to it — which means it has fewer resources to cause harm to our communities, schools, and environment. That’s a good thing. More investigations = less time for Trump’s Cabinet to come up with new ways to implement and expand his agenda.

What About Impeachment?

Impeachment is a political process. Indivisible supports impeachment proceedings because there’s copious evidence that Trump has obstructed justice (and there is likely more evidence of other crimes and corruption that will emerge after real investigations are completed). But we also recognize that impeachment is not a matter of whether someone objectively deserves to be impeached; it’s a matter of whether the votes are there.  To successfully impeach and remove Donald Trump from office, there will have to be a majority of votes in the House to impeach, and then two-thirds of the votes in the Senate to convict. That means at least 67 Senators, Republican and Democrat, would have to vote yes on conviction. In other words: for this to work, the same folks who spent two years empowering Trump and voting to take away your health-care coverage will have to get on board.

Another way to say this is that the way we ultimately get Trump out of office is by making him so toxic that a significant number of Republicans realize that they need to abandon him to save themselves. That means doing some legwork. To get there, we will need:

• Overwhelming evidence that Trump committed an impeachable offense (even more than we currently have).

• Extraordinarily low Trump favorability ratings (lower than we’ve seen thus far in his presidency), which will force Republicans to split from him to protect themselves.

The best way to build that evidence base and erode Trump’s favorability ratings is through a broader congressional strategy — relentless investigations and ensuring that his policies are recognized as toxic and are regularly defeated in Congress. That’s why using our constituent power to defeat his legislative agenda and expose his corruption through investigations is so important. Pursuing this strategy is about laying that groundwork.

Investigations are the first step forward. With control of the House, Democrats should use their investigatory power to begin investigations into whether Donald Trump has committed crimes that would justify his impeachment. This is a first and necessary step. There is no shortage of avenues: obstruction of justice in his firing of James Comey, his violation of the Constitution’s Emoluments Clause, collusion with Russia to interfere with the 2016 election. But remember: Impeachment is going to take time if it’s going to be successful.

Section 4: Don’t Forget About Defense

We’ve just discussed the new powers that House Democrats won with their majority. But the Republican Senate will keep trying to partner with Trump to enact his agenda and confirm his extremist judges and other nominees. That means there’s still some defense to do.

In this section, we’ll cover:

1. Why we need to stay on defense even though Democrats just won control of the House

2. How Senators can continue to play defense in the Senate

Why do we need to stay on defense?

Even now that Democrats have taken back the House, the Republicans still control the Senate — and Mitch McConnell is going to work with Trump to raid as much of the coffers as he can before the 2020 election.

Senate Republicans will stop at nothing to advance Trump’s agenda. Despite the losses they suffered in the House, Republicans remain firmly behind Trump. They want to continue to cut taxes for the wealthiest Americans and corporations, slash Medicaid and end protections for people with pre-existing conditions, and protect Trump and his crony Cabinet from any meaningful oversight.

No one from the Senate Republican caucus is going to save us, so Democrats must refuse to “go along to get along” when going along means cutting deals that hurt immigrant families, people with pre-existing conditions, and other marginalized communities.

How can Senators defend against Trumpism?

Democratic Senators have ways to delay progress on Trump’s agenda. In the Senate, powerful mechanisms are available to the minority party to slow down harmful legislation and nominations. That means even though Democrats remain in the minority, there’s a lot they can do. They used some of these during the fights over the TrumpCare and tax scam bills in 2017. We’ll review them again briefly here, so you know how to best pressure your senator:

• Withholding consent: Almost anything in the Senate, from its rules to the parameters of a debate, can be waived using “unanimous consent” (UC) agreements. As the name denotes, “unanimous consent” works only if no one objects, so a senator who wants to slow things down need only show up when a UC request is offered and say, “I object!” This is a common Tea Party-inspired tactic: in February 2018, Senator Rand Paul single-handedly held up a spending bill for more than six hours and forced a brief government shutdown. You can read more about withholding consent here.

• Filibustering: The Senate minority party’s most powerful tool is the filibuster. The majority party must get 60 votes to end debate (“invoke cloture”) and move forward on most pieces of legislation. By refusing to end debate voluntarily, a single senator can force the majority party to get 60 votes in order to move forward. Some notable cases where the filibuster isn’t as useful: Presidential nominations require only 51 votes for confirmation, and legislation being passed under a special budget process called “reconciliation” also requires only 51. You can read more about filibustering in our explainer here.

• Denying quorum: The Constitution states that “a majority of each [chamber of Congress] shall constitute a Quorum to do Business.” Most of the time, there aren’t enough Senators for a quorum, but the Senate continues with its business because no one calls it into question. Any senator could rise at any time and challenge this assumption — and if there aren’t 51 Senators present, legislative business cannot resume until enough Senators return, or the Senate reaches a unanimous consent agreement to move along. In this way, a group of Senators could slow things down by just not showing up on the Senate floor. (This tactic also sometimes works in committee; in early 2017, Democrats on the Finance Committee delayed the confirmation votes for Steve Mnuchin and Tom Price by refusing to show up.)

Indivisible on Offense: A Practical Guide to the New, Democratic House by Indivisible Project is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.