How Impeachment Weakened the House and What They Should Do About It

If Trump wins on November 3rd this year, we will be told that the doomed effort to remove him from office bears much of the blame. If he loses, the impeachment will get at least some of the credit. But it’s quite possible that the impeachment will have no impact on the electoral outcome at all, while still having significantly tipped the balance of power in Washington.

Power is a slippery concept, abused by many in the course of attempting to explain or invoke it. In a democracy, we are tempted to conflate it with popular opinion or public support, or some other, slightly less slippery construction. Yet even in a system quite sensitive to majoritarian impulses, the relationship between public support and power is not as direct as one might suppose. And our system is hardly the most sensitive to such impulses.

To begin grasping the dynamics of power in our system, consider FDR’s court packing scheme. It is written neither in the stars nor in the Constitution that the Supreme Court should have nine justices, and only nine. Congress has the power to change the size of the Court, and in fact did on multiple occasions in the 19th century. After completely trouncing his Republican opponent in 1936 with a 523 electoral vote victory, FDR had plenty of reason to believe that he would be accomodated. But the idea of FDR extending his influence more directly to the judicial branch proved too much. House leadership refused to even consider it, the Senate kept it in committee for nearly half a year and then voted to send it back 70-20, where the court-packing component was excised.

This defeat was not merely the failure of a specific legislative initiative. At a moment when FDR seemed politically invincible, he was utterly defeated. The independence of the judicial branch was guarded so jealously by Congress in this instance that the nine justice Court became a durable feature of our constitution until the present day. Such durable features are precisely the “norms” it has become so fashionable to speak of since Trump took office. But norms cannot be taken for granted, nor are they inherently desirable by mere virtue of being a norm. When Mitch McConnell refused to hear judicial nominees in 2016, he was certainly flouting a norm, but he was not breaking any laws, nor any cameral rules of the Senate. And Congressional Democrats have never done one thing to make him regret it.

Norms are not God granted. They are not even derived from the text of the Constitution. They are, as Jeffrey Tulis put it, “the product of political conflict among the branches, not the result of dispassionate legal analysis.¹” The results of these conflicts can be quite durable, but are far from irreversible. Our small-c constitution—the only one that truly matters—is the character of our political system at any given moment, the set of norms still in operation and the levers of power thereby available to specific actors perched in specific institutions.

Osita Nwanevu offers compelling evidence that the impeachment proceedings bore no political cost, comparing polling data before and during them and finding little change throughout. But he errs in arguing that the only cost was a lost opportunity. While few believed that Twenty-two Republicans could be swayed to vote for removal, one never knows until one tries. The unprecedented nature of the Trump presidency, and the brazen way in which he conducts his self-dealing, let many imagine it might be possible, under the right conditions. Now everyone has confirmation that no matter how brazen the corruption and how incompetent the coverup, party-line votes are the order of the day, full stop. 

I do not know if Nancy Pelosi truly believed that there was hope enough Senators could be swayed, but if she did, she was wrong, to our detriment. There was, indeed, an opportunity to be had. If she had been strategic about when they launched the investigation or announced that they were pursuing the articles of impeachment. If she had pursued any goal at all, with real commitment, rather than sleepwalking through the procedural steps of a measure she was plainly uncomfortable taking. Gains could have been made; either politically or in the effective balance of power.

But half-measures carry a cost, especially when they fail. The very week of his acquittal, Trump began cleaning house of anyone that testified against him, and to make moves towards bailing out his cronies that had been caught in an earlier net. Deterring him at all will become much harder now that potential opponents have been shown they will be punished for speaking up, and allies have been shown they will be protected.

I do not wish to harp on mistakes of even the recent past, though I share Nwanevu’s frustration with the timidity of Democrats. We have over eight long months before the election, and as unpopular as Trump remains, the fundamentals still favor his victory. The proximate goal of Trump’s opposition should be to deter his actions through November, since this may, with luck, be all that is required. And such deterrence, and ineffectiveness on Trump’s part, may—if skillfully played, a big if given the congressional set we need to rely on to accomplish it—hurt Trump politically as well.

The most crucial opportunity to influence the election via congressional power will come at the end of September, a little over a month before election day. That is the end of the current federal fiscal year, and therefore the deadline for the next budget. It was a little over a year ago that Democrats created, and once again blew, a tremendous opportunity on this front. The incident was a perfect distillation of Nancy Pelosi’s peculiar mix of acumen and lack of commitment. She was very capable at getting Trump to take ownership of the shutdown, and therefore to take all of the negative response to it from the public. And yet, when it all came down to it, she extracted nothing. She maneuvered Trump into a position in which she had some leverage, and failed to gain anything from it long term. She signed a compromise budget, and then Trump did what he had threatened to do anyway, and declared an emergency so he could divert more funds to his little wall.

This time, the wall should not be Democrats’ main concern. In fact, they can ultimately give Trump more money for his wall, as a public concession in order to get more important gains. Specifically: the budget bill ought to completely gut Trump’s farm subsidies that have insulated an important constituency against the otherwise damaging effects of his trade war, and revoke his ability to draw on emergency funds. Politically it might be best to try and accomplish the former without mentioning it explicitly; perhaps by introducing measures described as reducing discretionary spending overall but which specifically targeted the emergency funds, as well as drastically curtailing the Department of Agriculture’s discretion (but not necessarily its overall budget). However it is pulled off politically, these two areas are important sources of administration power which Congress can go after when the time is right, with its power of the purse.

While bills addressing these things could be introduced at any time, with a Republican Senate and White House, the House needs some leverage to extract any concessions. More to the point, even if they cannot obtain these successfully, the fight will occur during the crucial month before the election. If Democrats are anywhere near as successful at forcing Trump to take ownership of this shutdown as they were last time, and so close to voting time—perhaps even up to election day itself—this could surely influence the outcome in their favor. Which goal to aim for seriously will have to be a matter of tactics; if Trump digs in, then Democrats will need to put all of their energy into using a shutdown as a vehicle for defeating Trump at the ballot box. If Trump caves out of fear of precisely that, then in the event he wins reelection he will have bargained away important components of his power. It hardly needs to be mentioned that in the case of the farmer subsidies he is essentially buying votes, and once that money ceases to flow he—and his party—are likely to lose an important constituency.

Another lever of power available to the House is the little known and too little used ability to hold people in contempt of Congress. Political scientist Josh Chafetz pressed for the use of this during the ample opportunity the House was provided during the impeachment proceedings, as administration officials played the well-worn “executive privilege” card to refuse to testify. Chafetz, like Tulis, rightly sees executive privilege not as something that can be delineated by “dispassionate legal analysis,” but instead must be drawn by “political conflict among the branches.” In Chafetz’s book he describes how, during the Watergate hearings—an example of just such a conflict, reaching its highest pitch—the courts intervened and essentially appropriated Congress’s power of contempt. Whereas historically Congress enforced its own subpoenas through its Sergeant at Arms, since the 70s the courts have affirmed that they must rule on the validity of the subpoenas in order to grant a contempt ruling².

Once again, the goal is twofold. First, by issuing subpoenas of administration officials, the House can impair the administration’s ability to act. If officials refuse, as they have shown themselves more than willing to do, then the House could take the matter to court, which would further tie up administration officials and resources. If the House does not get a favorable outcome in court, however, they could move to reclaim their unilateral use of the power of contempt of Congress. Success is hardly guaranteed; constitutional combat often turns on which of the branches can leverage the most public trust, and the courts, though bleeding trust like every institution, are still much more eminent before the eyes of the public than Congress is. But should House members manage it skillfully enough, the reward would be greatly worth the risk. For it would mean acquiring a powerful tool of unilateral action for deterring Trump administration action through the election, and if necessary, to provide leverage during a second Trump term.

If these suggestions appear cynical, or unjust, then I can only suggest the reader consult the history of our constitutional order. Opportunistic interbranch battles, across party lines, are the rule, not the exception. With an administration as brazen in its corruption as our current one, abetted by as skilled a constitutional combatant as Mitch McConnell in the Senate, Democrats can ill afford anything less than bold, aggressive action. The two strategies I offered above are just the beginning of what needs to be done in Congress, never mind beyond it, in the streets and elsewhere. Let us pray that Congress, and all of us, have the will to see it through.

Featured image is Nancy Pelosi by Gage Skidmore