Maybe Democracy Was The Friends We Made Along The Way
by Michael C. Dorf
As I hit publish this morning, we do not know the full results of the voting that ended yesterday. However, it appears likely that, even though Republicans substantially underperformed relative to expectations, they will end up gaining control of the House of Representatives by a modest margin. As of the early morning on November 9, the NY Times Needle gave Republicans an 83% chance of winning the House.
If Republicans can flip seats in two of the remaining too-close-to-call Senate races, they will gain control of the Senate as well. At this point, Arizona, Nevada, and Georgia look like the battlegrounds for this 2-out-of-3-wins contest. In the event that Senate control turns on the outcome of what now looks very likely to be a Georgia runoff (again!), we on the blog will discuss that race in the coming month (presumably including coverage by our in-house Atlanta-based Prof Segall).
What are the takeaways? I'll leave the fate of election deniers in state races for another day. For now, let's talk about Congress.
If Republicans end up flipping two or three Senate seats to more than offset their loss in Pennsylvania, confirmations of judicial and executive nominees will slow considerably and, depending on the ability of the new Senate majority leader (likely Mitch McConnell again) to lead, could grind to a halt entirely. That, in turn, might depend on whether Republicans have 51 or 52 seats in the Senate and on the outcome of the Senate race in Alaska. If Lisa Murkowski, now running as an independent, manages to retain her seat, she could break from a Republican blockade against confirmations; the Republican currently leading her by a slim margin, Kelly Tshibaka, would likely be a reliably party-line vote. Without Murkowski, Susan Collins and perhaps occasionally Mitt Romney would be the only possible defectors from a confirmation blockade.
If Democrats maintain control of the Senate, confirmations will continue. Over the next two years, it doesn't much matter whether Democrats stay at 50-50 with VP Harris breaking ties or move to 51-49. In the latter case, Kyrsten Sinema would displace Joe Manchin as the tipping-point Senator, but that won't make a difference because legislation will cease with GOP control of the House. The main difference between holding the Senate 50-50 and improving the Democratic advantage to 51-49 is that the latter scenario puts Democrats in a better starting position for the 2024 and 2026 elections.
What about the House? I realize that many of my fellow Democrats are feeling pretty good about the election, for having not been a large red wave. But I'm afraid I can't share in the good cheer. Gamblers who take the points can win even if their team loses but beats the spread; beating the spread does little for the team itself--and we're all the team in this metaphor. That's especially true with respect to the House, where every seat is up for grabs every two years, so, unlike in the Senate, coming close in the total doesn't spill over to an advantage the next time around.
There is a lot to say about how a change in control of the House will affect the next two years. Here I'll focus on three issues.
(1) Debt Ceiling/Economic Catastrophe. As I observed in my Verdict column on Monday, it is mind-boggling that Americans concerned most about inflation and the broader economy (which is to say just about all voters) would vote for Republicans. I noted in the column that inflation is a global phenomenon mostly caused by supply-chain disruptions from the pandemic and energy price volatility due to Russia's war of aggression against Ukraine. Still, I acknowledged that one could plausibly say that the spending measures passed during the last 22 months contributed to inflation.
Even so, however, Republicans have nothing resembling a plan to fight inflation. On the contrary, their main plan appears to be to hold the global economy hostage by refusing to raise the debt ceiling unless the President accedes to their plans to slash Social Security, Medicare, and God-knows-what-else. Because President Biden is unlikely to yield to such pressure but the Republicans in Congress are either too ideological or too stupid (or both) to realize that defaulting on U.S. debt would be . . . uhm . . . bad, they will carry through on their threat, triggering an immediate financial crisis and raising the cost of borrowing for the federal government (which would be inflationary in the event that it doesn't trigger a second Great Recession or Great Depression).
One might think that the margin of victory in the House will affect Speaker-in-Waiting Kevin McCarthy's ability to destroy the global economy via debt ceiling terrorism, but the "Hastert rule," under which a majority of the majority holds blocking power in the House, could make the size of a GOP majority irrelevant. Hence, whether Republicans succeed in triggering a global financial crisis could depend on whether McCarthy accepts formalization of the Hastert rule as the price of gaining the Speakership. And as we know from his groveling before the Donald, McCarthy will do whatever it takes to get power.
(2) Empowering Russian Aggression. One can reasonably wonder whether President Biden and other western leaders have been too supportive of Ukraine, in light of the non-trivial risk that a cornered Putin would resort to nuclear weapons. To my mind, the alternative was worse. Allowing an authoritarian regime to conquer a neighboring country posing no threat simply because the regime has nukes would utterly destabilize the post-World War II global order. Still, reasonable minds can differ on strategy.
For too many Republicans, however, the issue is not about weighing the risks of expansionist fascism against the risks of nuclear war; it's about the dollars. Kevin McCarthy has said he won't give Ukraine a "blank check;" other sometime isolationist Republicans have also questioned the cash value of supporting Ukraine's heroic efforts to resist Russian atrocities. Given Donald Trump's admiration for Russia, even if he does not return to the White House in 2025 (more about that below), any weakening of U.S. support for Ukraine will encourage Putin to wait us out.
(3) Investigations, Investigations, Investigations. Remember Benghazi? That was a tragedy, but the underlying official decision making should have been a nothingburger. Likewise (as Professor Buchanan has repeatedly explained on this blog and elsewhere), the "scandal" of the IRS during the Obama administration supposedly (but not actually) making life difficult for right-wing non-profits also was much ado about nothing. Those investigations lasted years. So will the investigations the Republicans will launch into the withdrawal from Afghanistan (which was, to be sure, very badly handled), the FBI raid on Mar-a-Lago, and just about anything else. Even though there might be some there there with respect to Afghanistan, the investigations will exist simply for their theatrical value, regardless of what they turn up. The most MAGArific members of the GOP caucus will seek to impeach Biden for . . . reasons.
* * *
Pretty terrible, right? Sure, but if the likely Republican takeover of the House materializes, the lame-duck session of Congress between now and the new year provides President Biden and Democrats in Congress a chance to avert some of the worst damage. Using reconciliation, Congress can authorize an increase in the debt ceiling that covers anticipated borrowing into at least early 2025 with a large margin for error. (Ideally, they'd repeal the debt ceiling entirely or raise it to such a high level that it becomes inconsequential, but that appears to be politically impossible because of the fear of demagoguery on this issue). Reconciliation can also be used for another round of funding for Ukraine. Nothing that happens in the lame-duck session can prevent a Republican-led House from conducting gazillions of investigations.
Hence, if there is political will, Congress in the lame-duck session can mitigate some of the dangers identified above. Will it? Ask Senators Manchin and Sinema.