If you trust the polls in the U.S. midterm elections next week, it appears that the Democratic party will sweep into Congress soon. Most projections show that a big blue wave is coming to Washington, D.C., this fall, with Democrats likely to pick up a big majority in the House and also retake the Senate. Of course, the polls could be majorly wrong, but let’s just assume for now that they’re right.
What could Democrats actually do with control of both chambers next year?
One might dream of passing long-standing Democratic party priorities like the Medicare for All Act or, for LGBTQ2S+ people, the Equality Act, which would add LGBTQ2S+ people to federal civil rights laws. But whether any of those big swings are achievable depends on a few things.
The biggest question is how many Senate seats the party wins. Many forecasts pin the potential Democratic majority having about 53 seats, with an absolute maximum of 58 seats. If Democrats hold something like 53 seats, the Senate will remain the primary site of political gridlock it always has been. But if Democrats end up with 58 seats, which they could if every “toss-up” race along with Mississippi and South Carolina goes their way, then there is a real chance to see some legislative reform.
The reason for this is the filibuster. The filibuster is a Senate procedure that requires 60 senators to approve just bringing a piece of legislation up for a final vote. You can do all the necessary things to bring a bill to the floor: a hearing, a committee vote or two, endless revising—but if there aren’t 60 votes for it, it will never get a floor vote. To me, it’s probably the most frustrating bit of legislative procedure we have.
On the one hand, the filibuster stands in the way of all of the progressive legislation we want, like the Equality Act. On the other, it protects us from the worst legislation that we all fear, like federal bans on trans healthcare. I don’t foresee this next crop of Democratic senators having the guts to repeal the filibuster, and so they must find 60 votes to pass anything of significance.
Even worse, Democrats would need 67 votes to override a presidential veto from President Trump. They are unlikely to have the votes for that, even if they do take the Senate. Sixty-seven is also the number of votes they’d need in the Senate to convict anyone in an impeachment trial.
This has led some prominent Democrats, like former vice-president Kamala Harris, to declare that the party’s legislators shouldn’t pursue impeachment proceedings in the first place. Rep. Hakeem Jeffries, who is the current leader of the House Democratic Caucus and would be the favorite to become House Speaker should Democrats retake the chamber, has said that impeachment is “neither on nor off the table.”
So what could Democrats actually do for queer and trans people? Unfortunately, the answer is: not much. For the past two years, Democrats have been fairly successful at filibustering the worst anti-trans federal bills to come through, and Republicans would surely return the favour should any pro-LGBTQ2S+ legislation come through.
Most of the Trump-era anti-trans policies have come through executive branch actions, and can only be undone through legislation—which is unlikely to pass a filibuster or a veto—or through the next president moving to undo those actions.
Now, you might be asking: wouldn’t the election of some anti-trans Democrats mean that some anti-trans legislation might still pass? I think that is unlikely, as the anti-trans Democrats wouldn’t have enough votes within the Democratic caucus to force votes on such bills, so we would need to see something akin to the full U.K. Labour Party capitulation on trans rights before that becomes a possibility here in the U.S. And, lest we forget, the first Democrat to make anti-trans comments after the last presidential election, Massachusetts Rep. Seth Moulton, just got bulldozed in his Senate primary against Ed Markey, who literally wrapped himself up in the trans Pride flag for major speeches.
Democrats controlling both chambers will mean they will control which bills come to the floor in the first place, and it gives them the power to kill the anti-trans bill riders that have plagued this last session of Congress. So we would be likely to see far fewer attacks come through the federal legislature this time around.
That is a small bit of good news considering that trans people, and youth in particular, experience substantial negative mental health effects when anti-trans bills come up for a vote. But it’s also cold comfort for a trans community that has been under a legislative siege for years, particularly in red states.
In that vein, Democrats taking back red state legislatures would be the most immediately beneficial thing for trans people across the country. There is a chance that deep red states will either see a Republican supermajority break, like in Texas; see a Republican trifecta (controlling the statehouse, senate and governorship) break up like in Georgia; or see Democrats sweep into power in both chambers, like maybe in North Carolina.
Any of these results in individual red states would have the potential to vastly improve at least the mental health of trans people in those states, if not improve the material conditions of their lives with legislation.
Even if we do see another “blue wave,” it’s probably unlikely that Democrats as a group will launch vast nationwide efforts to roll back the GOP attacks on trans people, given we will be fresh off an election in which Republicans have spent billions on anti-trans attack ads on Democrats. But the bleeding can at least be partially staunched this fall.
Our national legislature moves slowly, and that is frustrating for our injured little community, but there are signs of hope on the horizon. Electing Democrats can provide us some breathing room even while not being a silver bullet to solve all of our problems. Take hope!
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