Clinton and the Democrats Will Have Two Years, at Most, to Accomplish Anything

Even with the blast of negative publicity from the FBI Director’s gratuitous comments about the Clinton email controversy, the fundamentals of a victory for Hillary Clinton remain firmly in place. The polling aggregators and the betting markets show some recent movements that surely worry the Clinton campaign, but nothing that suggests a Trump victory in November.

That could still change, of course, but let us assume for now that it does not. That means that, starting in January 2017, Hillary Clinton will be the President of the United States. What happens then? We know that Clinton’s Republican detractors will only be more determined to thwart her at every turn, of course. But it is still possible that she will have some successes.

I will not discuss here how Clinton might use executive authority to sidestep the Republicans’ deliberate legislative stonewalling. Instead, I want to focus on an odd pattern in U.S. Senate elections that could reduce Clinton’s time frame for action during her first term from four years to two. Indeed, even two years might be too optimistic.

It is important to stress that, for the good of the republic, continued gridlock is horrible news. Alienation and economic insecurity have been an important part of Donald Trump’s unexpected takeover of the Republican Party. Although much of his appeal is based on pure bigotry and xenophobia, economic despair makes it much easier for a demagogue like Trump to succeed.

As I have argued, those anti-democratic trends will still be with us after the election. Trump’s upcoming defeat will buy us time to address the underlying forces that have led us to this brink, but if the economic and social stresses that began during the Reagan Administration do not abate very soon, 2016’s election could be the last one in which something resembling normalcy prevails.

Unfortunately, the electoral realities of both houses of Congress make it extraordinarily unlikely that anything will in fact be accomplished before it is too late. Unless Republicans suddenly decide that it is acceptable to work with Democrats and especially their hated rival Hillary Clinton, the best we can hope for is an extended period of treading water.

The House of Representatives and President Hillary Clinton

As clear as it is that Clinton is still the strong favorite to win the presidency (with odds running at least two to one in her favor, and sometimes as high as four to one), it is even more likely (six to one, according to one recent estimate) that the Republicans will maintain control of the House of Representatives this November. Gerrymandering after the 2010 Census has worked perfectly, from Republicans’ perspective.

This means that, in the best case, President Clinton will be facing a hostile lower house, which will severely limit her ability to accomplish anything. In fact, it is highly probable that House Republicans, enraged by having lost the White House to their most despised nemesis, will intensify their threats to shut down the government again, and even worse, finally to force a default of U.S. debt.

As scary as all of that is, we can at least try to be optimistic and imagine that the extremely negative public response to prior shutdowns has chastened Republicans, such that they will allow the day-to-day business of government to limp along. This will still fuel the long-term political alienation that I described above, but maybe that powder keg will never explode. One can hope.

Until recently, I had allowed myself to imagine that something more positive was possible, but I no longer believe that Republicans will in any way cooperate with Hillary Clinton. Decades of anti-Clinton fervor have made it impossible for anyone in the Republican Party to dare to go against the pack.

In any case, under foreseeable conditions, the most that one could expect from House Republicans during a Clinton Administration is not to be completely nihilistic.

The Odd Electoral Pattern Created by Senators’ Six-Year Terms

With the House all but sewn up for Republicans until at least the next Census, most normal legislating will come to a halt. The stumbling budgetary process of the last several years will continue, with occasional crises arising along the way. Divided government will prevent either party from moving forward with its agenda.

But what if the Democrats retake the Senate? That is where things become interesting, but not just in thinking about the 2016 elections. How Democrats plan for future Senate elections could matter even more.

For people who have been paying attention to more than the presidential race, the Senate has been the other big story of 2016. Current estimates give Democrats a significantly better than even chance of retaking control of the Senate. This is based on the simple reality that twenty-four out of the thirty-four Senate seats up for election this year are currently held by Republicans.

Several of those incumbent Republicans are from blue-to-purple states: Illinois, Ohio, Wisconsin, Florida, Pennsylvania, and New Hampshire. It would take only four wins by Democrats in those or a few other states, plus a Clinton victory, to put control of the Senate back in Democrats’ hands. (One or two Democratic seats are not entirely safe, but the overall odds of a Democratic majority being elected in November account for those possible setbacks.)

So, if the Democrats’ reasons to celebrate on the evening of November 8 include retaking the Senate, what happens next? The important point to remember is that the Democrats’ extremely favorable Senate map in 2016 will be reversed in 2018 (and then reversed again in 2020). Why?

For the last few election cycles, Republicans have done very well in mid-term elections, while Democrats have seen big wins in general elections. Because Senators serve six-year terms, a person who wins not because of his own electability but merely by riding his party’s wave, will face reelection during an election cycle that the other party is most likely to dominate.

The vulnerable Republican senators in 2016, then, include some extremely weak candidates who won during the Republicans’ “shellacking” of Democrats in 2010. The Tea Party’s outsized influence on that election resulted in a 2016 reelection class that is likely to see a lot of forced retirements.

This is all to the good for soon-to-be President Clinton, for reasons that I will describe momentarily. But the important point to remember is that, even if the Democrats are able to take back the Senate this year—and even if they outperform expectations and end up with as many as 53 or 54 seats—their victory is almost certainly going to be short-lived.

In 2018’s mid-term elections, Republicans will only be defending eight out of the thirty-three seats that will be up for reelection. The Democrats who rode President Obama’s coattails in 2012 will face voters who are likely to skew much more Republican in 2018, because that has been the nature of the mid-term electorate.

Imagine, therefore, that Democrats coming out of 2016 have a 53-47 advantage in the Senate, after what would count as a great election for the Democrats this year. Republicans would only have to take back four of the 25 non-Republican seats in 2018 to flip the Senate right back to them.

For what it might be worth, the 2020 map flips back yet again, with the Republicans’ big mid-term 2014 wave then facing a much less hospitable climate in a general election. If Clinton ran for reelection and won, she would probably bring with her yet another new Democratic majority to the Senate.

The Senate and President Hillary Clinton

Obviously, many things will change during that time. It is possible that the respective advantages of the parties—Democrats doing well during general elections, Republicans coming back in mid-terms—will dissipate, for any of a number of reasons.

But what we do know is that, if Democrats do take back the Senate this November, they are very, very likely to lose it again in only two years. What does that mean for President Clinton and the Democrats?

The short answer is that Democrats could still accomplish some of their most important goals, even with only a two-year window of opportunity. As an initial matter, whereas a Republican-controlled Senate would surely tie up many of Clinton’s cabinet nominees for any number of pretextual reasons, a Democratic-majority Senate could approve Clinton’s nominees without delay.

With Clinton’s appointees in place, she could at least exercise the powers of the executive branch in the way that she would see fit. Yes, the Republicans could be counted on to drag her to court on a regular basis, but they could not prevent her administration from exercising the executive power.

Even this, however, would create an odd new dynamic in presidential appointments, because it is fairly common for appointees to leave after less than a full presidential term (with many serving for only two years). Facing a Senate confirmation nightmare after 2018, potential cabinet and even sub-cabinet appointees might be pressured to commit to serve longer than has been the norm.

Beyond the executive branch, of course, the big enchilada is the courts. We can assume that years of abuse of the filibuster by Republicans, followed by the last two years of the new Republican majority’s unprecedented obstruction of presidential appointments, have convinced Democrats to change the Senate’s rules to allow confirmation of justices with simple majority votes. Republicans will wail, of course, but that will be noise and nothing more. (But maybe not. See below.)

This scenario suggests that President Clinton would be able to appoint judges for her first two years in office, but she would effectively lose that ability thereafter. Once Republicans retake the Senate after the 2018 elections, everything will grind to a halt.

Imagine, for example, that a Supreme Court vacancy arises in, say, March of 2019, shortly after the Republicans have celebrated their all-but-inevitable mid-term victory. Even with almost two years left in Clinton’s first term, it is easy to imagine Republicans reprising their specious excuse for not considering President Obama’s nomination of Merrick Garland to fill the late Antonin Scalia’s seat. “The American people just showed that they support us, and they rejected Hillary Clinton’s radical agenda. Now that Justice _______ has resigned, we should wait for the 2020 election to let the people decide.”

All of which means that the two-year window within which Democrats will control the Senate is the only time in which Democrats will have a chance to do anything at all. We can, therefore, imagine carefully timed retirements from the courts to reflect those considerations. More generally, the pressure would be on to do everything possible during the first two years of Clinton’s first term.

Will Democrats Respond by Crouching or Standing Up?

Nearly all of my speculations above implicitly assume that a new Democratic majority in the Senate in January 2017 will stand together, without defections. That might, however, be too much to expect from the Democrats.

After all, Democrats are well known for being timid and for not wanting to be seen as overreaching. With majorities in both houses of Congress during the first two years of Obama’s first term, for example, many Democrats ran away first from proposals for single-payer health care and them from creating a public option under the Affordable Care Act.

Similarly, Democrats caved on the size and composition of the 2009 stimulus bill, and they significantly watered down the Dodd-Frank financial regulation bill, all in the vain hope of not being painted as “too liberal” by Republicans. Their losses in the 2010 mid-terms were certainly not mitigated by those efforts.

Such caution and self-censorship stand in stark contrast to Republicans’ gleeful efforts to push every advantage whenever they are in power. The Democrats have a history of acting like they have lost even when they win, and the reason that they inevitably offer for their timidity is that they are worried about the next election, rather than being emboldened by the last one.

In the context of the baked-in pattern by which the Senate will almost surely flip back and forth between Republicans and Democrats in 2016 and 2018, it is especially useful to think about what those 24 Democrats (and one independent who caucuses with the Democrats) will think in January 2017 as they look toward their reelection campaigns in November 2018.

One possibility is that vulnerable Democrats will be realistic, understanding that virtually nothing they can do will save them from being defeated. But political vanity being what it is, it is especially easy to picture at least a handful of those Democrats trying to save their hides by making a big show of bipartisanship, in a vain effort to distance themselves from their party label as a Republican wave election nears.

That attitude might even prevent Democrats from scrapping the filibuster after they take over in January of next year, but even if it does not, we could easily picture some Democratic senators refusing to go along on judicial appointments when Republicans make a big noise, which would certainly include Supreme Court nominations.

For example, what if opposition research on a Clinton Supreme Court nominee turns up something along the lines of now-Justice Sonia Sotomayor’s “wise Latina” comment, which Republicans could again try to spin as somehow disqualifying? What would a Democratic incumbent who is worried about his reelection do?

It is easy to imagine him or her thinking, “Well, sure, the odds are against me, but if I play it just right, maybe I can win.” Some of those Democrats might, in other words, see themselves as special, not as merely the lucky beneficiaries of having run in 2012, when Barack Obama was winning reelection easily. It might be unavoidable that many of those Democrats will lose big in 2018, but each individual Democratic senator can convince himself that he can buck the trend.

And if, somehow, the Democrats were to pull a huge upset and retake the majority in the House in 2016, that would make it even more likely that they would revert to a hyper-cautious stance immediately upon taking office. They could easily convince themselves that, rather than using two years of undivided government to improve the lives of the voters who elected them, their better course is to do as little as possible, to avoid controversy and supposedly save themselves from defeat in 2018.

Either way, however, the Democratic Senate Class of 2012, staring in the face of their own political mortality as they look forward to the 2018 mid-terms, will hold the future in their hands starting in January 2017. The narrower the Democrats’ majority, the fewer defectors it will take to bring the Senate to a standstill.

Or, Democrats could decide that the new electoral reality requires them to act quickly. History suggests that they will go into a defensive crouch, but maybe this will be the time they do not make that mistake.