But Can She Govern?

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With less than a week to go before Election Day, it looks like Hillary Clinton is almost certain to win, despite Trump’s recent surge in the polls and the FBI Director’s inopportune and inappropriate  letter to Congress about a new investigation of emails that has barely begun and is likely not to be complete by November 8.

The key question is not so much “Will she win?” but “Will she be able to govern?” Although the Presidency has evolved into the strongest arm of the Federal government, merely holding the office is not enough to govern. It is still more likely than not that the Democratic Party will take control of the Senate (which requires 50 seats, assuming that Clinton’s running mate Tim Kaine becomes Vice President and thus holds the tie-breaking vote). Currently each party is favored to hold at least 47 seats, and the remaining six contests are too close to call (North Carolina, New Hampshire, Pennsylvania, Missouri, Indiana, and Nevada), although overall leaning towards a Democratic gain of the three seats necessary to change the majority.

Should the Democrats regain control of the Senate, on the first day of business, they must change the standing rules to eliminate the filibuster, a rule that has evolved significantly over time, has never been so widely used (some would say abused) as in the past decade, and is arguably unconstitutional. In the past when Democrats have been in the majority they have not tried to eliminate the filibuster, perhaps swayed by the fear of losing the power to obstruct in the future should they again be in the minority. In 2013, the Senate changed its standing rules to prohibit the use of filibuster on executive branch nominees and judicial nominees, other than to the Supreme Court. This change was accomplished with a simple majority vote: the presiding officer declares that the motion goes directly to the full Senate for a vote (the so-called “nuclear option“). With the Republican refusal to even consider President Obama’s nomination of Merrick Garland as Supreme Court Justice, and their recent musings that they would block Supreme Court nominations by Democratic presidents indefinitely, it has become apparent that the Democrats will have no choice but to again use “the nuclear option.” Harry Reid, the current Democratic minority leader, has said that Democrats would have no choice but to eliminate the filibuster in the face of Republican obstruction. New York Times columnist David Leonhardt agrees, “As long as Republicans keep talking about permanent obstructionism, Democrats should not hesitate to” eliminate the filibuster.

Controlling the Senate is the key to controlling the Supreme Court. Because the U.S. Constitution is so difficult to amend–more so than constitutions of any other country in the world and of any U.S. state–Supreme Court decisions have become, de facto, the standard means of amending the Constitution. This explains why the stakes are so high for Supreme Court appointments. The political right (which has taken over the formerly progressive-leaning Republican Party) has had effective control of the Supreme Court for 25 years–since Clarence Thomas was appointed to replace Thurgood Marshall in 1991. The right-wing politics of the Supreme Court have not necessarily reflected those of the nation, considering that the Democrats won the most votes in five out of six presidential elections from 1992 to 2012.

In the Obama era, Republicans used every tactic available to block the majority. Obama’s signature legislation, the Affordable Care Act, presents an instructive example. First Republicans blocked the Democratic majority in the Senate from voting on the bill, through (now routine) use of the filibuster. The Democrats therefore had to adopt the legislation during the brief period when they had 60 Senate votes. However when they subsequently lost the 60th vote (when Republican Scott Brown was elected to replace Ted Kennedy in a special election) they were unable to make any fixes in the lengthy and complicated bill. After the law was enacted, many Republican state governments blocked the expansion Medicaid, even though the Federal government was to assume virtually all the additional costs. Republicans then attempted to block the law in the courts. The Supreme Court, by the one vote of Chief Justice Roberts, upheld most of the law but declared that states could refuse to participate in Medicaid expansion, thereby denying health coverage to millions who the Democrats had intended to include within the provisions of the act.

Even if the Democrats win the Presidency and a working majority in the Senate, most analyses suggest that a change of party majority in the House is unlikely. The district lines are drawn such that Democrats would need to win a supermajority of the national vote–perhaps as much as 57%–to win a majority of the seats. Even though elections are held for all 435 seats, only 5% of them — 23 to 26 — are currently seen as competitive. The Democrats may pick up 10, 15 or even 20 seats, but they need a gain of 30 in order to have a majority (218 out of 435).

Thus on January 20, 2017 the Democrats may control the Presidency and the Senate–and therefore able to change party control of the Supreme Court–but they may lack the necessary votes to pass legislation. It is possible that a handful of Republican Representatives could be induced to vote with the Democrats on particular pieces of legislation, particularly if the inducement includes “pork” for the member’s district. However, there are few moderate or centrist Republicans remaining in the House, so finding the votes may be very difficult, especially if Republicans continue to take the position, as they did under eight years of President Obama, that any legislative victory for the President is a loss for the Republicans, no matter how many compromises are offered. Clinton could resort to government by executive order, as Obama has done in his final two years, but there are limits to what can be done without Congressional action (and stretching those limits, as previous presidents have done, is not healthy for representative democracy).

Thus the most likely scenario in the new year is a continuation of crippled government. When the majority elects a government that cannot enact its program, neither the majority nor the minority get they want, and everyone is unhappy. Is it any surprise that Congress is held in such low regard?

And even if the Democrats have some kind of working majority in 2017, they are likely to lose it after the next midterm elections, given that there will be more vulnerable Democratic Senators than Republicans in 2018, and that the drop-off in turnout (from barely over 50% to under 40%) that is typical of midterms tends to benefit the Republicans.

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