With fiscal deadlines out of the way for 2014, attention is now turning toward the 2014 midterm elections. This white paper covers a variety of Washington political matters: the reason for rampant partisanship in Washington and what it means going forward, what is likely to happen in the midterm elections, and a glimpse toward the presidential election of 2016.
To understand what is likely to happen in the midterm elections, it is necessary to understand why partisanship in Washington has been so pronounced over the past few years. Indeed, in my three decades in Washington, I have never seen Congress so unable to reach consensus on even such seemingly routine matters.
There are a number of reasons for this partisanship, including the 24 hour news cycle (which prevents potential compromises from percolating) and the need for the major parties to pander to increasingly extreme bases as more moderates become Independents. But in my mind the rancor stems in large part from the resetting of Congressional districts that occurred in the wake of the 2010 census. Just as the Republicans took over the House in 2010, they took over most state legislatures. These Republican legislatures typically sought to redraw districts to maximize the number that would be safe for House Republicans, a process called “gerrymandering”. The residual districts in the state (perhaps encompassing more of the cities) typically were safe for Democrats.
In a state run by Democrats, the process was much the same. The state legislature sought to make as many districts as possible safe for Democrats, with residual districts typically safe for Republicans.
As a result of this gerrymandering, most House members do not need to be concerned about winning the general election; the bulk of their districts votes the same way they do. What House members instead must worry about are the primaries. If a Republican incumbent is not viewed as sufficiently conservative, then he or she may face a successful primary challenge from a right-wing candidate (say, a member of the Tea Party). A Democratic incumbent can face a similar challenge from the left.
This process leaves few House members with an incentive to compromise. If they compromise they will be viewed as too moderate, and they could lose to a primary challenger. For this reason many House members compromise only in the face of a “forcing event”, that is, an event for which inaction is intolerable. The “fiscal cliff” was a forcing event, as no one wanted to throw the country back into recession. Raising the country’s borrowing ceiling also is a forcing event, because few politicians are willing to have the country default on its debt.
Absent a forcing event, the House has little incentive to compromise on legislation. Immigration reform is a good example. In the wake of the 2012 election, some Republicans who expect to run for the Senate or the presidency concluded that, to attract more Latino votes, Republicans should support immigration reform. As a result, the Senate crafted and passed a bi-partisan bill granting illegal aliens a thirteen year path to citizenship.
That legislation landed in the House with a dull thud. Few House Republicans have an incentive to vote for immigration reform, which conservatives denominate as “amnesty” for illegal aliens. Thanks to gerrymandering most House Republicans don’t need Latino votes, while supporting the bill could invite a primary challenge. So immigration reform languishes in the House.
The U.S. House of Representatives contains 435 seats, all of which are up for election this fall. The Democrats must gain seventeen seats to take control of the House. In the history of our country, the President’s party has never gained as many as seventeen seats in a midterm election. Typically, the President’s party loses seats.
The polling numbers bear out the effects of gerrymandering. Of the 435 seats, only nine seats are rated toss-ups. Wall Street Journal (July 28, 2013).
Thus, the Republicans should keep control of the House this fall, absent some unknown and unpredictably devastating party-wide scandal.
Based solely on the numbers, Republican prospects also look good in the Senate, where the party needs six additional seats to take the majority. Thirty-five of the 100 Senate seats are up for election this fall. Twenty-four of those 35 seats currently are held by Democrats. These Democrats were elected in 2008, many of them on Obama’s coattails. Some of the states from which Democrats are running switched and voted for Governor Romney, the Republican candidate, in the 2012 presidential election. Further complicating the Democrats’ efforts, five prominent Democrat committee chairmen have announced that they will not seek reelection.
The individual state races bear out this apparent Republican advantage. In three state races — Montana, South Dakota, and West Virginia — Republicans have a strong chance to pick up a seat. Democrats are trying to hold seats in an additional four states — Alaska, Arkansas, Louisiana, and North Carolina — that voted for Romney in 2012. That is seven seats in play, of which Republicans need six, a seemingly surmountable task.
In the words of Senator Michael Bennett (D-Co), however, “Republicans have not missed an opportunity to miss an opportunity.” Many pundits believed Republicans would take control of the Senate in 2012, but Republicans actually lost seats as the Democrats increased their majority.
Republican difficulty gaining Senate seats derives from a fundamental split in the Republican Party, a split I label as between Ideologues and Moderates. I intend these as neutral terms.
Moderates assert that Republicans can win Senate seats – and the presidency in 2016 – only by softening their extreme positions and showing willingness to compromise, allowing them to gain Independent votes. In a recent survey, 42% of voters described themselves as Independents, an all-time high. Only 25% of voters describe themselves as Republican, the lowest in twenty-five years. Washington Post (January 9, 2014).These numbers strongly suggest that, outside of the House, Republicans can win very few elections solely with Republican votes.
Ideologues (including many Tea Party members) are less willing moderate their views. They assert that these are core moral and fiscal beliefs to which Republicans must adhere not just for the good of the party but for the good of the country. Indeed, some Ideologues say they would rather have a Democrat president and a Democrat-controlled Senate ‑- knowing Republicans control the House and can block their actions — than have a Republican president who will compromise core beliefs and cajole a Republican House to go along.
In the 2012 Senate elections, many Republican candidates were from the Ideological wing of the Party. Not surprisingly, these candidates failed to attract significant Independent voters, causing the Republicans to lose seats in the Senate.
Whether Republicans can gain a majority of the Senate seats this fall will depend on the candidates that emerge from the primary contests. If the bulk of these candidates are Ideologues, then the Republicans are unlikely to gain in the Senate. But if Moderates are able to capture the primaries, then the Republicans could indeed become the majority party there.
Whether Republicans or Democrats win the Senate is unlikely to influence the legislation that emerges from the post-election Congress. Almost certainly neither party will gain the 67 seats in the Senate needed to overrule a presidential veto. In fact, neither party is likely to gain 60 Senate seats, the number needed to end a filibuster and move legislation through that body. (Some Washington policy wonks might recall that last year the Democrats eliminated the use of the filibuster to block presidential appointments, such as cabinet secretaries and federal judges. But passage of most laws still requires sixty Senate votes.)
With the House in Republican hands and a Democratic White House, the country is facing at least two more years of split government. As a result Congress will act only when faced with more “forcing events”, such as raising the debt ceiling again in 2015, responding to a domestic terrorist attack, or coming to the aid of a longtime U.S. ally.
Hillary Clinton today appears to be the presumptive 2016 Democrat candidate for president. But this situation must be kept in perspective. Almost all pundits would have declared Clinton the presumptive candidate 2-1/2 years before the 2008 election as well. A lot can happen between now and then.
In my view, whether the Republicans can win the presidency in 2016 depends on the candidate they put forth. If a Moderate Republican can manage to run the primary gauntlet and win the nomination (without being pushed too far right in the process), he or she could garner sufficient Independent votes to win the election. But if the Republicans instead nominate someone from their Ideological wing, it will be more difficult for the party to gain the Independent votes needed to take the White House.
There is a long way to go, and I’ll have plenty to say along the way.
Andrew H. Friedman is the Principal of The Washington Update LLC and a former senior partner in a Washington, D.C. law firm. He speaks regularly on legislative and regulatory developments and trends affecting investment, insurance, and retirement products. He may be reached at www.TheWashingtonUpdate.com.
Neither the author of this paper, nor any law firm with which the author may be associated, is providing legal or tax advice as to the matters discussed herein. The discussion herein is general in nature and is provided for informational purposes only. There is no guarantee as to its accuracy or completeness. It is not intended as legal or tax advice and individuals may not rely upon it (including for purposes of avoiding tax penalties imposed by the IRS or state and local tax authorities). Individuals should consult their own legal and tax counsel as to matters discussed herein and before entering into any estate planning, trust, investment, retirement, or insurance arrangement.
Copyright Andrew H. Friedman 2014. Reprinted by permission. All rights reserved.
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