Polarization, Lack Of Productivity Likely To Reign In Congress After Election

Nov 4, 2016
Originally published on November 4, 2016 5:20 pm

No matter who wins the presidential election on Tuesday, it's nearly certain Congress will be more narrowly divided come January.

And with no clear mandate likely coming out of 2016, there is little reason to be overly optimistic that the next Congress can escape the cycle of unproductivity and polarization that has gripped Washington in recent years.


The 115th Congress: Political Dynamics

With little chance of a Democratic House takeover in the 2016 election, the two likeliest scenarios are:

  1. Republicans maintain control of both the House and Senate. (Likeliest if Trump wins) or
  2. Democrats take control of the Senate, but the House remains in GOP control with a narrower margin. (Likeliest if Clinton wins)

In the House, Republicans would continue to struggle to find a 218-member governing majority for even the most basic legislative responsibilities. But leaning on Democratic votes to pass bills sparks backlash and anger from the party's right flank.

It's the dynamic that troubled former House Speaker John Boehner and ultimately played a role in his decision to resign. Speaker Paul Ryan has received high marks for his transition into the leadership, but the underlying challenge remains the same. 2017 will be a more interesting test of Ryan's leadership and governing abilities, particularly if Hillary Clinton wins and he considers a 2020 presidential bid.

Ending the filibuster?

In the Senate, the 60-vote threshold for essentially all major legislation is also a significant barrier to the majority party and gives the minority blocking power.

There will likely be more debate over whether there needs to be filibuster reform to break the logjam. While ending the filibuster remains unlikely, it is a conversation that has gotten louder in recent years, particularly from liberal Democrats.

The 2018 midterms (It's never too early to talk about the next election!)

It's a particularly brutal map for Democrats, with the party defending seats in conservative-leaning states like Indiana, Missouri, Montana, North Dakota and West Virginia. That mix will present unique challenges for Democrats to work with or against the party in the White House.


The 115th Congress: The Agenda

If Donald Trump wins ...

If Trump wins and Republicans hold both chambers of Congress, there is a more clear possibility for legislative action. A Trump administration could shift tremendous power to the legislative branch.

As president, Trump has indicated that he would defer to his vice president for policymaking. A Vice President Mike Pence would have strong relationships on Capitol Hill, particularly with Speaker Ryan.

The speaker theorized recently that the only way for government to tackle big issues may be unified control.

"I'm tired of divided government. It doesn't work very well," Ryan said before Congress adjourned ahead of Election Day. "We've gotten some good things done. But the big things — poverty, the debt crisis, the economy, health care — these things are stuck in divided government, and that's why we think a unified Republican government is the way to go."

House Republicans have unveiled a legislative program, entitled "A Better Way," that is the legislative road map for the next Congress if Trump wins.

Its proposals are familiar, conservative positions on issues ranging from national security to health care. While Republicans still face a 60-vote hurdle in the Senate, they would have one powerful tool — budget reconciliation — to use if government is under GOP control.

Budget reconciliation is how President Bush passed tax cuts and President Obama passed the Affordable Care Act. (It requires only a 50 percent-plus-one majority for passage but is limited in its permanence.) It could be a vehicle to repeal Obama's health care law or enact new tax laws, for example.

If Hillary Clinton wins ...

If Congress is under split control, she will face many of the same challenges President Obama did, particularly in the House, where conservatives hold deep reservations about working with a Clinton administration. Unlike Speaker Ryan, Senate Majority Leader Mitch McConnell contends that split government can still work if key players are willing.

"Divided government is actually the best government," McConnell said recently, "[It's] the best time to tackle really difficult things, because it requires both sides to buy into it to make progress."

There is an expectation that a Clinton White House would be better than the Obama White House at "wooing" Republicans in Congress. There is some optimism that Clinton would be able to find middle ground with enough Republicans on centrist economic proposals, but it's simply too soon to assess whether that is realistic, or whether Clinton pivots to the center (lower business tax rates) or to the left (free college) with her economic priorities.


What Congress Faces

The Supreme Court

The next president will have to name a Supreme Court justice as a first order of business, as well as nominate Cabinet secretaries and navigate the Senate confirmation process.

Issues: immigration, infrastructure, criminal justice, welfare?

As far as issues go, there is little expectation across the political spectrum that 2017 will see resolution on legislation to overhaul the nation's immigration laws or the controversial Trans-Pacific Partnership. Any effort to pass TPP would likely need to be accompanied by a "side car" piece of legislation to address lawmakers' concerns about its impact on American workers. TPP itself cannot be renegotiated, despite candidates' assertions otherwise.

Speculative areas of compromise include tax legislation, criminal justice reform, and infrastructure (re: jobs) legislation. Congress also has to reauthorize the Temporary Assistance for Needy Families (TANF) program, a federal cash assistance program for low-income families, by September 2017.

A key dynamic to keep in mind is that Republicans are generally opposed to any new spending that is not offset elsewhere in the budget. So many of Clinton's spending proposals are dead on arrival in a GOP chamber. This standard also applies to a Trump administration. Any new proposals on new spending or new entitlements — like paid maternity leave — are highly unlikely to find the support they need to pass in the next Congress.

Republicans have indicated a willingness to negotiate on taxes, but any effort to raise any tax rates would likely have to come at the expense of significant changes to entitlement programs like Medicare and Social Security, which most Democrats reject.

In short, another two to four years of split government could produce incremental legislative progress, but grand bargains and sweeping overhauls are unlikely to find a critical mass of lawmakers on Capitol Hill to move forward.


The Lame-Duck Session (Nov. 14 to Dec. 16)

The lame-duck session is the name given to the two-month period after an election, but before the new Congress takes over.

Here's what Congress likely will deal with — and what it won't:

1. Spending bills: The main legislative focus is to complete the 2016 spending bills. Only one of the 12 annual bills funding the federal government has become law, mainly due to internal GOP disputes over how much to spend. The current stop-gap bill expires Dec. 9. If Congress can't come to terms in the lame duck, they can punt another stop-gap bill into the next Congress. This is unusual, but not unprecedented.

2. The Cures Act: GOP leaders have said the 21st Century Cures Act, a bill to expand access to biomedical innovations, is a lame-duck priority.

3. Supreme Court, trade: There is no expectation for a Supreme Court nomination hearing for Merrick Garland, or action on the Trans-Pacific Partnership trade deal.

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