Divided Government

The Score

Republicans will have a majority in the U.S. House. About half of the Republican pickups are coming from conservative Blue Dog Democrats. As I write, 29 Blue Dogs have lost, 17 have held their seats, 10 are still to be decided; Democrats have so far lost 60 seats and picked up two. Many of the freshmen in this year's Republican caucus will be real firebreathers. The total doesn't include CO-3 which John Salazar, a Blue Dog Democrat, is likely to lose, so more than half of the Blue Dogs will lose their seats in this election.

Democrats will have a majority in the U.S. Senate, but not the sixty votes it takes to break a filibuster unilaterally. Some of the "independent thinking" and bipartisan leaning Democrats no longer on the Democratic side include Byron Dorgan (ND), Evan Bayh (IN), Lincoln Blanche (AR), Russ Feingold (WI), and Arlen Specter (PA), all of whom have been replaced by Republicans. On the Republican side, moderates Judd Gregg (NH) and George Voinovich (OH) have been replaced by more conservative Republicans. Thus, the wiggle room available in prior years to cross partisan lines has been reduced as well as the size of the Democratic majority in the U.S. Senate.

Of course, we continue to have a Democratic President with veto power, the power to issue regulations, the commander-in-chief power over the U.S. military, the power to propose federal budgets, the power to nominate federal officials including judges, the power to determine what enforcement priorities the U.S. government will set, the power to determine what positions to take in litigation over policy issues, and the power to unify the elected officials from his political party.

We also have a Democratic Vice President who has the power to resolve ties in the U.S. Senate in favor of Democrats and to serve as that body's presiding officer in parliamentary matters if he choses to do so.

And, we have a U.S. Supreme Court split 5-4 on political lines, with five conservative justices and four liberal ones. The most physically frail liberal justices have been recently replaced with new appointees. Justice Kennedy, a moderate conservative, continues to hold the swing vote. The intermediate appellate courts in the federal system are also more liberal now than they were two years ago as a result of recent Presidential appointments. Close cases may go to conservatives, but the current Supreme Court is not going to adopt the Tea Party's view of the U.S. Constitution any time soon, and any vacancies on the Court in the next two years are likely to tip the balance in favor of the court's liberal wing.

The Status Quo

The Bush tax cuts will expire completely unless a deal is reached to extend them. This gives Democrats an edge on this issue, because Republicans can't extend these tax cuts as they have promised their constituents that they will without cooperation from Democrats in the U.S. Senate and the President.

Likewise, Republicans can't repeal health care reform or financial industry regulatory reform without cooperation from the Democratic majority in the U.S. Senate and the President for whom these are his signature legislative accomplishments.

More generally, since Democrats control the U.S. Senate, they can quietly kill any bill that the Republicans pass in the House in committee, without even bringing it to a floor vote.

Of course, with a House majority, Congress can't pass any legislation that the Republican party won't accept. Most importantly, the House can refuse to agree with the U.S. Senate on appropriations bills that would produce a government shutdown if not passed, which can give them leverage on other issues.

Control of the House also gives the Republicans the power to launch investigations into the Democratic administration, and one can be sure that they will use this power.

An Agenda For A Divided Government

What can be accomplished in a divided government?

1. Uncontroversial legislation. A remarkable share of all legislation is passed with near unanimous support. Nobody is likely to oppose appointing the chairwoman of the Daughters of the American Revolution to the National Commission To Encourage Patriotism, or the President's regular list of military officers to be commissioned.

2. Wedge issues. While the Republican party is united on many fronts, its Tea Party wing and establishment Republican wing don't agree on all issues. When Democrats can divide Republicans while remaining united themselves, they can pass legislation. For example, one wing of the Republican party would like to get the federal government less involved in enforcing ordinary criminal laws, while another is more concerned about being tough on crime. One wing of the Republican party disfavors all immigration, while another might favor legal immigration targeted to accomplish goals like reducing health care costs by increasing the supply of medical professionals.

3. Cross-partisan legislation. Not all issues fall neatly along party lines. Some issues split both parties, and legislation on the majority side of those splits can be passed. States that have nuclear waste want to get rid of it. States that could be forced to be home to nuclear waste disposal sites don't like it. The balance of local political interests and not national policy often prevails in these cases.

4. Cherry picked opposition ideas. Each party can find select issues advanced by the other party and hope to pass legislation advancing those issuees. For example, this year, the Tea Party is all about cutting federal government spending. So, it will be hard for Republicans to say no to Democratic proposals to make cuts in federal spending from programs that Democrats don't like. Health care proposals to control health care costs may also be hard to opppose.

5. New regulations. The health care and financial industry regulation bills leave open a host of issues to be addressed by regulation that the President can now draft. Tax regulation changes can produce significant policy changes. The EPA has the power to consider new regulations that Congress can't change without passing new laws. The list goes on.

6. Must Pass Legislation. Shutting down the government for no obvious good reason doesn't help your chance of being re-elected, particularly if truly essential governmental functions, like ongoing military operations, are shut down.

7. State and Local Legislation. States still exist. Many are controlled by Democrats or are less severely deadlocked on partisan lines than the federal government. And, a deadlocked Congress can't pre-empt this activity.