By Mark Tipps, Partner & COO
Labor Day has passed, and the traditional campaign season has begun. What will happen in the midterms, and what will their results mean? All the seats in the House and roughly one-third of the seats in the Senate are up for grabs. Republicans currently hold the majority in both chambers. Democrats need to flip 3 seats in the House and 4 seats in the Senate to take majorities. Let’s look at each chamber.
The House
Democrats are likely to take the House for at least two reasons.
First, historically, the party in the White House usually loses seats in midterm elections. In fact, no President, whose party held both chambers of Congress at the start of his term, has maintained control of both the House and Senate through a midterm election since Jimmy Carter in 1978, shortly after Watergate.
Second, President Trump is as unpopular as any president in recent history, with an approval rating hovering around 38%. By comparison, in 2006, President George W. Bush’s approval rating was 39%, and Republicans lost 30 seats in the House.
Republicans are trying to redistrict in many states, and if they’re successful, they may pick up close to 8 or 9 seats, possibly more. The vast majority of House races are not competitive, so a small portion of voters nationally (~ 5%) will decide the balance of power in the House. According to the Cook Report, only about 18 to 39 House races are viewed as tossups. Democrats are focusing hard on 9 Republican-held seats in districts where Kamala Harris won in 2024. Current polling, which can and will change, suggests that the Democrats will win enough seats to take the majority, albeit by a narrow margin.
The Senate
The Democrats’ road to a majority in the Senate is tougher, but they’re quickly gaining ground, with some polls showing them now in front. Of the 35 seats up for reelection (33, plus 2 special elections), only a few are competitive. The Democrats best targets to flip a Republican seat are: Texas (Cornyn seat), Maine (Collins seat), North Carolina (Tillis seat), Ohio (Husted seat), and Alaska (Sullivan seat). But they’re also concerned about losing Democrat seats in Michigan, where their nominee is a Democratic-Socialist, Georgia, where Jon Ossoff faces stiff competition, and possibly New Hampshire. Democrats are also increasingly concerned with Pennsylvania Senator, John Fetterman’s, possible flip to the Republican party. If the election were today, most pundits believe the Republicans would hold the majority, but that is changing on a daily basis. If Republicans hold the majority, it’ll likely be by a narrower margin, and the margin is especially important in the Senate. Remember, the One Big Beautiful Bill passed by only 1 vote — the Vice President’s tiebreaker. Additionally, most business in the Senate requires 60 votes to proceed because of the Senate filibuster. So, every vote is critical.
What will change because of the midterms?
Assuming the Democrats win at least the House, that will mean several major changes for both the Legislative and Executive branches.
First, coming off a bruising election neither party will be in a friendly mood for legislative compromise, not that we’ve seen much compromise to this point. Congress will have to fund the federal government, as the current Continuing Resolution runs out December 11th, but beyond a handful of expiring measures that are deemed necessities, don’t expect much progress in a lame duck session. Tempers will be short and everyone’s focus will quickly turn to the 2028 presidential election. Likewise, don’t expect much bipartisanship in 2027 or during the 2028 presidential election year.
Second, the few substantial pieces of legislation Republicans have been able to pass were via the Budget Reconciliation process that uses special procedural rules to fast-track debate and bypass the filibuster in the Senate. This allows a measure to be passed with only a partisan, majority vote, for example, OBBBA. But Reconciliation requires action in both chambers. If the House is controlled by Democrats, there’ll be no more one-sided Reconciliation bills.
Third, a Democrat-controlled House means they’ll control the House legislative committees, which, in turn, means more oversight of Executive branch agencies. In healthcare, that means agencies like CMS, FDA, etc. Right now, when those agencies promulgate rules or regulations, or introduce new payment models, the Republican-controlled House and Senate provide little pushback. But Democratic-controlled committees in the House will look much more carefully at those initiatives and will likely push back in areas where they disagree. Put simply, in an era where the Executive branch seems to dominate, don’t forget that the Executive branch cannot “legislate.” If it does so it violates the Separation of Powers Doctrine in the Constitution. Executive agencies, such as CMS and FDA, can only pass rules and regulations if they have the proper legislative authority. That process will get a little more choppy for Republican-run agencies if the House is controlled by Democrats.
Finally, and most importantly, with control of the House committees, the Democrats will control the committee hearing agendas and the committees’ subpoena power. Democrats are salivating over the opportunity to launch investigations of the Trump Administration, but they’re currently split over what and how much to investigate. They’ve mentioned several targets, including allegations around Trump-family corruption and profiteering, handling of the Iran war, the White House ballroom, the Epstein files, ICE-related actions, DOGE, and healthcare, including Trump’s meetings with drug companies.
Democrats will likely make the same tactical mistake that Republicans have made in the past and simultaneously launch too many investigations that will drown each other out. But because committee chairmen are like feudal barons, i.e., hard to control, they won’t be able to help themselves. Similarly, impeachment is a possibility, given that Articles of Impeachment originate in the House and may be filed by a single member, but most Democrats downplay that possibility, fearing that the public will see it as overreaching and taking away from their legislative agenda.
- How will the White House respond to investigations?
Faced with a slew of Congressional document requests and subpoenas, the White House will likely do its best to slow-walk the investigations. In my experience as counsel to Senator Fred Thompson in the Senate’s investigation of illegal foreign money in the 1996 presidential election (“Chinagate”), I saw first-hand how a White House can stymie Congressional oversight. The White House will object to document requests and subpoenas and try to delay them through negotiation over their scope. Eventually the committee will lose its patience, but its range of responses is limited. While a Congressional investigative committee has the power is issue subpoenas, it does not have the power to directly enforce them. That comes as a surprise to many people. To enforce its subpoenas, a Congressional investigative committee must rely on the Justice Department or the court system. It essentially must go to the House floor, get a resolution granting it authority to go to the U.S. District Court in D.C. and then seek an order from the court either compelling compliance with the subpoenas or holding the subpoenaed party in contempt. It can also hold a party in contempt of Congress, but again, it must rely on the Justice Department to enforce that contempt citation. Suffice to say that the formal enforcement of Congressional subpoenas is quite time-consuming and cumbersome for the committee, and it stalls the investigation. For Democrats, any investigation that doesn’t produce results that can be used in the 2028 Presidential election is largely a useless exercise.
- Executive Privilege.
The White House will also likely claim Executive Privilege any chance it gets. Executive Privilege generally protects the President’s conversations and deliberations about official presidential business. U.S. v. Nixon, 418 U.S. 683 (1974). If the White House asserts that privilege erroneously, that can also be challenged in federal district court, but it is again a very slow process for a Congressional investigative committee.
- The 5th Amendment.
Finally, individual witnesses served with Congressional subpoenas often avoid testifying by asserting their Fifth Amendment privilege against self-incrimination. In the Chinagate hearings in 1997, we had over 30 witnesses assert the Fifth Amendment. People often ask – can anyone assert the 5th Amendment for any reason? As a legal matter the answer is, no. A witness cannot use the Fifth Amendment to avoid testimony if the witness has no reasonable basis to believe there could be a criminal prosecution. The Supreme Court has held that there must be a “real and appreciable” fear of prosecution or that there will be evidence that furnishes a link in the chain of evidence needed for prosecution. Hoffman v. U.S., 341 U.S. 479 (1951). But, as a practical matter, challenging an erroneous or overly broad assertion of the Fifth Amendment once again requires a Congressional investigative committee to seek a federal district court order that the privilege was improperly asserted – a cumbersome and time-consuming effort.
- Private sector parties.
Faced with all these potential obstacles from the Trump Administration, the Democrats may well turn their attention to Trump’s outside, private sector allies, including healthcare companies that met with and/or contributed to him. While private sector entities can also stonewall, it is more difficult. For example, it is not a good PR look for most public company CEO’s to assert a Fifth Amendment privilege, so most try to comply with the subpoenas, at least in a negotiated way. Relatedly, in early August, the Trump Department of Justice, Office of Legal Counsel, perhaps anticipating the Congressional investigations, issued a guidance memorandum, saying that Executive Privilege could apply to “presidential communications with private advisors, so long as the communication relates to official presidential decision making.” This will no doubt open up a new rabbit hole that private sector companies can use to attempt to shield themselves from Congressional investigations when those investigations seek to learn about their meetings with the President.
Regardless of the outcome of the Democrats’ investigations, having a Congressional committee asking for an Administration’s emails, notes from meetings, and other internal communications, and seeking to depose key Administration personnel is, at best, disconcerting, and at worst, paralyzing. Potential witnesses lawyer up, put their heads on a swivel, and let their day-to-day jobs take a backseat. And that is precisely why the Democrats will apply the pressure. Even if their investigations don’t reveal anything damaging, they’ll attempt to keep the Republicans off their game for the final two years of President Trump’s term, while the Democrats hone their message for the 2028 presidential elections.
It’ll be interesting to watch – from a safe distance.