What would a divided Congress do after the midterms?

Kevin McCarthy and Chuck Schumer, who could each control a branch of Congress in 2023.
Photo: Ron Sachs-Pool/Getty Images

Thanks to an improved electoral landscape for Democrats in general and some ill-fated selections of GOP nominees for the Senate in particular, the odds of Democrats clinging to control of the upper house have improved significantly lately. Right now, FiveThirtyEight is giving Democrats a 63% probability maintain a majority in the Senate when Congress reconvenes in January 2023.

The Democratic odds of winning the House again have also improved, but not enough to make it a good betting proposition: FiveThirtyEight gives Republicans a 78% probability to overthrow the House, as one would expect midterm, with the party controlling the White House holding a narrow four-seat majority. On the three occasions since World War II when a president’s party lost fewer than five House seats in midterm elections (1962, 1998, and 2002), the president’s job approval rating was greater than 60%. While Joe Biden’s approval rating has finally stopped falling and is slowly improving, he’s miles away from that kind of popularity.

This means that the fragile ruling Democratic trio held during Biden’s first two years in office will soon come to an end and, as in 45 of 77 years old since World War II, we will have a divided government in Washington. So what will it look like?

In the previous century, when the country was less ideologically polarized, presidential parties could often form bipartisan coalitions even without a ruling trifecta. But in recent decades, particularly with the rise of senatorial filibuster as a routine filibuster device, a divided government has often meant stalemate and discord. The 117th Congress from 2019 to 2020 provided a good example. It all started with the longest government shutdown ever, the GOP-led Senate has become a machine for Endorse Trump Judicial Candidates, and the Democratic-led House became engrossed in Trump’s investigations, culminating in impeachment proceedings. There was little legislative activity until the COVID outbreak exploded and the White House and Congress were afraid to pass the $2 trillion CARES Act.

The next two years probably won’t be quite as crazy, even if the midterm elections deliver a divided Congress, but here are some factors we can anticipate with some certainty.

In the current Congress, all but a few Senate Democrats were intent on killing or drastically curtailing the filibuster, allowing 41 senators to stop any legislation that isn’t part of a bill. budget reconciliation. If the Republicans take control of the House, there will be no real point in killing the filibuster since the House will be able to stop any legislation the Senate Republicans want to make of the filibuster. So Congress still won’t have true majority rule until the Democrats or Republicans find a trifecta.

German budget legislation that only requires a majority vote is the quickest way around the filibuster. This is how Republicans enacted tax cuts in 2017 before losing control of the House and how Democrats signed into law both the US bailout stimulus legislation in early 2021 and the the inflation cut that President Biden signed into law earlier this month. You can forget that in a divided Congress, in which the leadership of each chamber sets the agenda and controls the floor.

If Democrats retain the Senate, Biden will continue to benefit from early confirmation of his top administrative and federal judicial appointments, as those types of appointments are already filibuster-exempt. So if Democrats were to find themselves with another Supreme Court vacancy in Biden’s first term, they should have no problem filling it.

Anyone who remembers the Benghazi mess and other obsessive investigations the House has undertaken over the last six years of the Obama administration can have an idea of ​​how Kevin McCarthy and his troops will spend their time over the next two years if they control the chamber. Following the recent FBI operation at Mar-a-Lago, McCarthy more or less promised to go nuts as soon as he grabbed the hammer:

The Trump-dominated House GOP will have no problem rationalizing a menu of investigations as a payback for what House Democrats have done to the former president over the past few years. In fact, the narrower McCarthy’s margin of control, the more vulnerable he could be to a revolt by the ultra-MAGA faction of his caucus, which would push him to support all manner of outrageous House investigations. It wouldn’t take much pressure for Biden’s sense of impeachment to mount.

Party control of the House rarely changes in a presidential election year, but if Congress emerges from this year’s tightly divided midterms, 2024 could be an exception. Meanwhile, the Senate landscape in 2024 is very pro-Republican: Democrats will defend 23 Senate seats, six in states formerly carried by Trump, while Republicans will defend only ten seats, all in states that Trump has won twice.

The paramount contest, of course, will be for the presidency, and whether Trump or one of his proteges is the GOP nominee, the Democrats really need to win. If they don’t, then clinging to a divided government could be critical for democracy, as well as for Democrats.

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About Michael S. Montanez

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