What might an opposition party be doing right now?

The Democrats are leaving a lot of tools on the table

Democratic congressional sit-in on gun control in 2016

Last night I wrote about the very aggressive recent assault by the Trump administration and its allies on U.S. democracy and the rule of law. I want to follow up with some ideas for ways an opposition party could be responding.

To quickly review what happened on Friday, private citizen Elon Musk and his former Twitter/X employees occupied the Office of Personnel Management and the Treasury Department and prevented federal employees from doing their jobs; Trump vowed to fire Department of Justice employees for the sole reason that they investigated the January 6th insurrection, and Trump pressured federal agencies to remove vital data pertaining to trans people from their websites. I believe these actions constitute a significant attack on democracy and the rule of law.

I don’t think I’m overreacting to these actions, but I’m quite confident the opposition party is under-reacting to them. With very few exceptions (possibly Alexandria Ocasio-Cortez, Jamie Raskin, and J.B. Pritzker), prominent Democratic leaders seem to be taking a very blasé attitude toward all this, complaining about the price of avocados and sending fundraising e-mails. I agree with Charlotte Clymer that “with few exceptions, the Democratic messaging to all of it has been incredibly weak.”

Okay, but what could they actually be doing? Democrats are in the minority in both the House and the Senate. They can’t run congressional hearings or subpoena people, they don’t control the FBI or any other federal law enforcement office, they can’t pass laws stopping this, etc. These are all fair points. But even a minority party in the House and (especially) the Senate has some power to direct attention, slow things down, and demand concessions. These potential actions include:

Publicity Stunts: These are not frivolous things — they can draw media and public attention to important events that are not currently getting much publicity. Have a bunch of members of Congress stand outside the Department of Justice refusing to let officials be forced out, or to vow to support and advocate for those who were. Stand in front of the Office of Personnel Management with employees who are being denied access to their computers by Musk’s team. Organize a sit-in in the Capitol. Encourage a strike by FBI agents and offer to pay their salary if it’s threatened.

Lawsuits: I’m no lawyer, but a private citizen asserting control over a federal office and gaining access to people’s personal financial data strikes me as a pretty serious crime, whether he’s a friend of the President’s or not. This seems like something law enforcement might be interested in (DC Metro Police surely have jurisdiction when a crime is being committed in the District). But beyond that, where are the Democratic officials and lawyers filing lawsuits and requests for injunctions? This is an ongoing potentially criminal situation.

Congressional delays: Democrats have complained for decades about Republicans abusing traditions and arcane rules in Congress to slow legislation down, posture on top issues, and extract concessions from the majority party. Good lord, Sen. Tommy Tuberville (R-Alabama), no Daniel Webster, figured out that he could hold a bunch of four-star military promotions up for 10 months to draw attention to military support for reproductive care. Surely Democrats have picked up a trick or two by now.

Just adding to this point, I spoke with political scientist and congressional expert Gregory Koger about legislative delays. (He literally wrote the book on the filibuster.)

On Senate holds like Tuberville’s, Koger points out that they can be thwarted, but it takes time, and it occupies floor time the majority wants to use for other purposes:

Any senator can delay anything but the majority can ignore the request and file for cloture, and a simple majority wins cloture on a nomination. So holds get their power when they force the majority to hold two votes (cloture, approval) on a nomination that is not worth the Senate’s time… that is, the opportunity cost of floor time to the majority party.

But there are other delays available to minority party senators, including refusing unanimous consent requests. That is, a lot of Senate business operates on this assumption of unanimous consent, and individual senators do not have to provide it:

The Senate has a whole set of rules that senators do not use and most don’t even know…. Instead, the Senate standard operating procedure is a set of workarounds, many of which require unanimous consent. That includes everything from establishing the debate procedure for a major bill, to a Senator standing up and talking about the news of the day when they’re supposed to be talking about the bill that’s on the floor. So if Democrats just started actually enforcing the rules of the Senate, they could really bring the place to a standstill. Literally, nobody would know how to act.

The point here is not that the opposition party would win, but they could make Trump’s actions far costlier to the majority party in Congress. They could limit the amount of damage. The could draw greater public attention to actions that almost certainly would be seen as unpopular.

The opposition party, by definition, will lose on a lot. But the Democrats are currently leaving a lot of very useful tools on the table.