Republicans in Congress are failing to conduct basic oversight of the actions of President Donald Trump and his biggest campaign donor, Elon Musk. Laws that Congress passed are being flouted, agencies that Congress established are being decimated, and funding that Congress appropriated is being cut off or diverted for unauthorized purposes. Republicans on Capitol Hill are not just relinquishing their most fundamental authorities and responsibilities under the Constitution, they are doing so enthusiastically.
There is an ongoing debate about how Democrats in Congress should respond. Some say the country is facing a constitutional crisis, so Democrats should do everything in their power to shut down Congress’s inner workings. Groups like Indivisible, for example, have mobilized grassroots efforts to press Democrats to “shut down the Senate.”
Others, like House Minority Leader Hakeem Jeffries, say Democrats can’t, and shouldn’t, “swing at every pitch.” He and others are reportedly irritated with outside groups that are focusing on them instead of Republicans in swing districts.
Still others urge Democrats to “let Trump be Trump” and allow voters to experience the full damage of the Administration’s actions rather than trying to slow, stem, or stop them. In this camp is James Carville, who suggests that Democrats should “roll over and play dead.”
To inform this debate, it may help to unpack the minority’s toolbox. Admittedly, the minority’s powers are more limited than the majority’s—they cannot call hearings, mark-up bills, or issue subpoenas. But they do have options.
As we examine these tools, there are three points to bear in mind. First, the minority’s approach does not have to be all-or-nothing—the minority can engage selectively and strategically while setting forth much clearer demands for specific concessions. Second, although minority members can utilize tools based on House and Senate rules, they also have options that extend beyond these rules. Third, one of the most effective strategies the minority can pursue may be one of the most difficult—organizing across different committees and even across the House and Senate.
Minority Rights in Congressional Rules
Objecting to unanimous consent. One reason groups like Indivisible focus on the Senate is because so much of its day-to-day work requires unanimous consent (UC). A UC measure will pass as long as no individual Senator objects. Senators can use objections to block UC motions and throw wrenches into the procedural gears, slow the proceedings, force votes, and make demands. Senators can block UCs for legislation, resolutions, nominees, and other matters. A significant amount of the House’s work is also conducted through UCs or the suspension calendar, which requires two-thirds of the House to pass a measure.
Holds. Senators can also place holds on bills, nominees, and other matters, flagging that they would block UCs if brought to the floor. Holds are particularly effective because there is generally insufficient floor time for the Senate to debate and vote on every measure, so there is an incentive to try to resolve holds.
Republican Senator Tommy Tuberville placed a year-long hold on UCs for military nominees to protest the Pentagon’s abortion policy and significantly slowed Defense Department promotions. Democratic Senator Brian Schatz used this hold tactic on State Department nominees in response to Trump’s decision to shutter USAID. Other Democratic Senators have joined and are considering expanding holds on nominees from other agencies.
There may be costs to this approach, including being perceived as obstructionist or potentially losing public support. However, Democrats could deploy this tactic more strategically by employing holds to obtain specific concessions, such as oversight hearings, witness testimony, or key documents. For example, Republican Senator Rand Paul agreed to drop his hold on several dozen State Department nominees in exchange for the production of COVID-related documents.
Filibusters. Any individual Senator can filibuster votes on certain measures. When a bill gets to the Senate floor, it requires a simple majority to pass. But Senators have a right to unlimited debate, so any Senator can delay that vote indefinitely. Senate rules currently allow Senators to simply indicate their intent to filibuster without the need to engage in actual debate. Before the Senate can have a final vote on a bill, there must be a threshold vote to end debate. To do this, the Majority Leader seeks cloture, which is a cumbersome process that requires a vote of 60 Senators. If the Senate cannot overcome this threshold, the bill will not advance to a final vote and will be delayed indefinitely. As a result, the minority can effectively block action by preventing cloture, but only if enough members choose to do so and then hold together.
Sometimes that can be challenging. For example, Senate Minority Leader Chuck Schumer recently caused an uproar when he and a handful of other Democratic Senators decided at the last minute to abandon a minority filibuster and join Republicans in passing a Continuing Resolution to fund government operations. Schumer said he hoped to prevent damage that would be caused by a shut-down, which may or may not be a valid political calculation, but he generated a “torrent of frustration and anger” by waiting until the eve of the Senate’s vote (after House Democrats had opposed the bill). This is a prime example of when the minority could have established—and explained to the public in advance—a much clearer set of demands to support the filibuster (or at least coordinated more effectively if their strategy wasn’t to support it).
The minority cannot employ the filibuster in every case. For example, the filibuster does not apply when the Senate considers nominees, including cabinet secretaries and judges. The filibuster also does not apply to the budget reconciliation process. Senators recently forced an all-night vote-o-rama on amendments to Trump’s budget proposal, but ultimately could not block them from passing the Senate’s version of the resolution with a simple majority. And although the margin in the House is razor-thin, Democrats peeled off only a single GOP vote as most from competitive districts fell in line.
Motions to adjourn. Congress’s rules provide other ways for the minority to assert itself. For example, the minority can move to adjourn any hearing the majority calls, and this privileged motion must be voted on immediately. Ensuring that enough majority members are present to defeat motions to adjourn can be stressful for the majority given how packed member schedules are. Republicans used this tactic successfully when they shut down a House Natural Resources subcommittee hearing on climate change in 2019.
Minority members could begin using this tool now on any committee, or they could escalate further by holding a coordinated “business-not-as-usual” day and collectively moving to adjourn hearings across committees to protest and, again, call for clear, specific concessions.
Two-hour rule. The Senate’s so-called two-hour rule allows a Senator to object to committee or subcommittee meetings continuing more than two hours after the full Senate convenes, with certain exceptions. This means a committee or subcommittee member could stop that committee’s business, and any subsequent action, such as reporting a bill or nomination, would be considered “null, void, and of no effect.”
Witness requests. The minority can request more witnesses at hearings than it currently does. There is a misconception that the rules allow the minority to request only one witness per panel. However, House rules authorize minority members—for every hearing—to have their own separate day with witnesses they invite. Republicans used this rule to obtain a minority day when they opposed D.C. statehood legislation.
The catch is that the majority decides when the minority day will happen. That is why the minority typically accepts a single witness at majority hearings rather than waiting for an inconvenient or uncertain date in the future. But Democrats could begin demanding minority days now for most or all majority hearings.
Subpoenas for witnesses. The minority can move to subpoena witnesses to appear at hearings. As with motions to adjourn, the minority may not have the required number of votes to prevail, but the motion itself can powerfully illustrate the work the majority is refusing to do.
The minority on the House Committee on Oversight and Government Reform used this motion in February to try to subpoena Elon Musk. Although the motion failed by a single vote, it resulted in national attention. This motion can, and presumably will, be repeated if the majority continues to refuse calls for key witnesses to testify.
Subpoenas for custodians of records. To obtain documents, the minority has fewer levers at its disposal. Under House rules, a motion to subpoena records is not in order during a hearing. However, the minority can move to subpoena custodians of records. This motion could be particularly effective if the majority refuses requests to obtain key documents that most Americans agree Congress should have.
For example, under federal law, Musk, as a special government employee, was required to submit a financial disclosure within 30 days of starting his new job. Assuming Musk began working on Inauguration Day, that deadline passed at the end of February. The minority could request Musk’s financial disclosure and, if rejected, move to subpoena its custodian.
Information requests. The minority can continue writing sternly worded letters to federal agencies demanding information, but the executive branch will claim it does not have to reply. The recourse for such a refusal is a subpoena, which is a tool controlled by the majority. Requesting, pleading, or trying to shame the majority into joining basic document requests can sometimes work, but there is generally no enforcement mechanism for the minority.
For example, when they served in Congress, Rep. Elijah Cummings (then in the minority) repeatedly pressed and finally convinced Rep. Mark Meadows (then in the majority) to join his request for information about the Trump administration’s policy of separating immigrant children from their families. When the administration refused, however, Meadows declined to support a subpoena. Although Cummings was not able to obtain the documents at the time (he got them later as Chairman), he was still able to bring greater attention to the administration’s actions and the majority’s refusal to investigate them.
“Seven-member rule” and “rule of five” document requests. Some may be familiar with a federal statute called the “seven-member rule” in the House and the “rule of five” in the Senate. Congress passed this law to authorize any seven members of what is now the House Oversight Committee or five members of the Senate Homeland Security and Governmental Affairs Committee to obtain documents from federal agencies. In 2016 and 2017, House Democrats successfully used this statute to obtain records from the General Services Administration and the State Department, and litigation to enforce demands under this law has had some success, although the Supreme Court has never addressed the issue.
Matters were complicated when House Republicans recently added a provision to their rules requiring that one of the seven House signatories be the Chair of the Oversight Committee. This was a clear effort to eviscerate the rights of the minority in obtaining information from the executive branch. However, it is unclear that the House majority has authority to unilaterally eliminate statutorily granted rights of other members of Congress, especially when the underlying statute was passed by both houses of Congress and signed by the president. Instead, a court may find that it is bound to follow only the statute and that the House, acting alone, may not impose additional standing requirements on the judiciary.
Actions That Extend Beyond Congressional Rules
Minority panels. Apart from invoking their rights under the rules, there are other ways the minority can engage. There is nothing in the rules to prevent the minority from holding its own events that inform the public and garner press attention. Instead of holding a “hearing” with “witnesses” who provide “testimony,” the minority can hold a “forum” with “panelists” who give “statements.” Former Democratic Senator Debbie Stabenow held several of these, including on Republican attempts to repeal the Affordable Care Act, which resulted in major press coverage.
Minority panels can effectively highlight people who want to tell their stories while exposing the refusal of the majority to hear their testimony. They can also help educate constituents about changes to programs that affect them directly and rally support for legislative advocacy.
A no-brainer for the minority would be to hold a forum with some of the 17 Inspectors General that Trump fired in violation of federal law. This number increased to 18 when the USAID IG was fired after he issued a report warning that the dismantling of the agency and freeze on foreign assistance could result in taxpayer-funded humanitarian assistance unintentionally going to terrorist groups. Although many IGs are ready and willing to talk, the Republican chairs of the Senate and House Judiciary Committees apparently have no interest in hearing from them.
Another option would be a forum with General C.Q. Brown, Jr., whom President Trump fired from his post as Chairman of the Joint Chiefs of Staff, along with former Air Force Secretary Frank Kendall, who has been raising the alarm about Trump’s firing of the military’s top attorneys. To this end, five Republican and Democratic former Secretaries of Defense have already called for public hearings on this issue.
Highlighting witness denials. Just because the majority rejects a minority witness request for an official hearing does not mean the minority has to sit idly by. In 2012, Oversight Committee Chairman Darrell Issa rejected a request from Ranking Member Cummings to invite Georgetown Law student Sandra Fluke to testify about contraception on what otherwise would have been an all-male panel. Cummings didn’t let it go. He wrote a public letter, invited Fluke to sit in the front row of the hearing, released a video of her statement, and then invited her to appear at a minority forum covered by C-SPAN—none of which are tools discussed in the House rules. Fluke garnered so much attention that she was invited later that year to speak at the Democratic National Convention where she received a standing ovation.
Information from whistleblowers. One of the most potent tools for the minority can be information from whistleblowers. Tiplines and websites have been popping up across Capitol Hill. The minority can obtain documents, emails, and other records that not only highlight waste, fraud, and abuse, but expose illegal retaliation and other unlawful conduct. The minority can also wield this information to make its case for action by the majority. This is what then-Ranking Member Henry Waxman did when he convinced then-Chairman Tom Davis to hold a hearing on Iraq reconstruction abuses with whistleblowers first identified by Waxman.
Public protests. Members of the minority can also mobilize public attention, drive media coverage, and impose pressure on the majority by engaging in acts of public protest, either on or off Capitol Hill. Last month, Democrats held the Senate floor overnight to protest Trump’s nominee for OMB Director, Russell Vought. In 2013, Senator Ted Cruz did the same thing to protest Obamacare. Recently, members of Congress have traveled to federal agencies to protest, including the Departments of Treasury and Education, the EPA, USAID, and CFPB.
Protests sometimes take the form of disruption and civil disobedience. In 2016, for example, Rep. John Lewis and other House Democrats participated in a sit-in on the floor to demand a vote on gun control legislation after the Orlando nightclub shooting.
A Possible Way Forward
There has been a lot of commentary sounding the alarm on the administration’s unchecked actions across federal agencies and programs. As a constitutional imperative, Members of Congress on both sides of the aisle should be asserting their Article I power to safeguard their authority, check the executive branch, investigate abuses, and assess the impact of federal policy on a bipartisan basis. (This has been the focus of years of bipartisan trainings for congressional staff sponsored by the Project On Government Oversight, The Levin Center for Oversight and Democracy, and The Lugar Center.)
In the meantime, the current majority’s acquiescence forces a more detailed examination of viable options to craft a strategic response from the minority. Apart from debating general approaches—from complete obstruction to selective engagement to total passivity—the minority could take a more concrete path.
One of the most effective—yet challenging—efforts the minority could take on is to organize its long-term work in a more proactive, coordinated way across the Hill. There is some evidence this is starting to happen in the House with the establishment of a rapid reaction task force led by Representatives Joe Neguse, Rosa DeLauro, Gerry Connolly, and Jamie Raskin. While the focus of this group appears to be primarily on litigation, the concept could be expanded.
To illustrate how such a coordinated effort might work in practice, the ranking members of multiple committees in the House and Senate could launch an extended joint project to identify and highlight the negative impacts of the administration’s attacks on federal programs on everyday Americans—often in violation of Congress’s constitutional prerogatives to wield the power of the purse and set policy through legislation.
For example, the minority members of each committee could gather information about programs in their jurisdiction from public reporting, current and former employees, whistleblowers, constituents, states and localities, and key data sources. They could also conduct first-hand interviews with people who are negatively affected by the administration’s actions. The minority could then serve as a combined clearinghouse for this information.
On the output side, each committee could compile simple, compelling district-level or state-level minority reports on these impacts on American families, seniors, workers, and businesses. Rep. Henry Waxman made these types of minority reports his specialty, issuing hundreds of them on issues ranging from healthcare to education to tax policy to federal contracting. These reports could be customized based on the programs each committee oversees.
The minority could employ a coordinated media strategy to take this information to the American people. These reports could have simple, standard formatting and branding across all committees, and their release could be staggered as committees complete them, both to continue beating the drum over time and ensure that all committees share the work.
These efforts could be integrated with the minority’s procedural moves under House and Senate rules. To take just one example, the minority could document the detrimental effects on American veterans of Trump’s plans to fire tens of thousands of VA workers. Minority reports could be issued for numerous congressional districts—including Republican districts. At the same time, members of the minority could make clear and specific demands for documents and testimony from the administration. If refused, the minority could move to subpoena witnesses, demand minority hearings, and move to adjourn some or all hearings for a day in solidarity with the nation’s veterans. They could also hold minority panels with veterans and their families in D.C. and across the country.
This is just an illustration. These efforts could be replicated for families struggling with huge consumer price increases as a result of the administration’s economic policies, farmers directly harmed by the administration’s funding freeze at USDA, small businesses and large corporations coping with rapidly escalating prices on imports, seniors in nursing homes and assisted living facilities facing massive cuts to Medicaid that will upend their lives, patients with cancer and other diseases who will suffer as a result of billions of dollars in cuts to life-saving research at the National Institutes of Health, and many others.
This type of coordination certainly would not be easy. By their nature, committees are stove-piped. Each has its own jurisdiction, agenda, and staff. Although committee leaders update each other regularly, they don’t often collaborate. Each committee already has a full plate, so creating new projects that require communication and coordination means more work—a lot more work. But this type of coordination could allow the minority to prioritize more effectively, divide and conquer, and break through with public opinion when they lack power to set the official agenda. The collective benefits of this approach may outweigh the natural instinct of individual members and committees to focus only on short-term defensive priorities.
To be successful, the minority members of each committee would have to make the conscious decision to wall off at least some of their staff to focus on the minority’s agenda rather than the majority’s. This can be a big ask since the minority already has fewer staff to keep up with all the hearings, bills, and press inquiries generated by the majority. But it is precisely because the demands of the majority are always present that it would be critical to cordon off some minority staff for this effort.
Steve Bannon famously described President Trump’s strategy as “flooding the zone” by distracting, disorienting, and overwhelming his adversaries. As Democrats debate how to respond, they are being pushed and pulled in different directions.
Instead of shutting down the government or rolling over and playing dead, a cohesive minority could take bold steps to coordinate long-term proactive work and convey a compelling message to the American people. If Democrats in Congress take up this effort, they are likely to be greeted with profound enthusiasm by constituents across the country who are hungry for more effective leadership and a way to channel their own energy to become directly involved in the solution.