An Election Where Neither Party Can Be Happy

The media and the punditocracy like to weave neat narratives after every election, but I am not sure there is a neat narrative following this election, other than that neither party should be crowing about the results.

Contra President Trump, the Democrats winning a House majority is no victory for him and the GOP. It wasn’t a wave, but the entire wave terminology is only a narrative spinning device anyway. The Democratic win was probably big enough to ensure that Nancy Pelosi will become Speaker of the House once again, though that may wind up being a net negative for the Democrats in the end.

I’d note that Donald Trump is the first Republican president since Dwight Eisenhower to lose a House majority in his first term, except he’s only the second Republican president since Eisenhower to even have a House majority, and GWB’s first mid-term was the post-9/11 midterm, so it’s not exactly a fair comparison. It is also completely absurd to paint this is as being on par with Obama’s first midterm, especially considering the Senate and state results – but more on that in a moment. The net Democratic pickup is about half of what the GOP achieved in 2010, and many of those pickups could be easy GOP take backs depending on how 2020 goes.

That being said, the Democrats managed a fairly nice haul in the midst of dynamic economic growth. We’re practically at the point of what is essentially negative unemployment (more jobs open than people seeking them), and despite some blips in the market, the economy keeps generally humming along. There was also no massively unpopular GOP legislative measure for Democrats to run on. Sure they demagogued the tax cuts and it was unpopular in many quarters, but it hardly garnered as much negative heat as Obamacare. Speaking of which, though the GOP also created some heartaches by its efforts to reform Obamacare, it didn’t actually succeed. So if the Democrats could have as much success as they did in this environment, what happens if the economy takes a turn for the worse?

Republicans should also be very concerned about the suburban vote. It is the suburban vote that has carried them for the better part of a century, and it continues to slip away, and the Trump presidency may be hastening the turnover.

Yet Democrats can hardly be reassured themselves. Winning the House will give them more oversight power, but it’s absolutely possible, if not likely, that they will massively overreach. And did I mention Nancy Pelosi is probably going to be Speaker again? And while they can claim they have stalled the Trump legislative agenda, the obvious retort is: what Trump legislative agenda? Who really thinks anything of substance was going to pass in the next two years if Republicans had retained the majority? And even if the Democrats might be able to work with Trump to advance their own agenda, it doesn’t mean much because they got absolutely thumped in the Senate.

Yes, the Democrats always had a very challenging map, as they say, but if last night was going to be a massive repudiation of Trump, they should have been able to staunch the bleeding and at least keep the Senate close. Instead, the Republicans flipped Florida, Indiana, Missouri, North Dakota, and quite possibly Montana. Meanwhile, the Democrats achieved a pickup in Nevada, but that’s likely it. Arizona is still close, but it looks like McSally has the edge there.

And let’s face it: it was more important for the Senate to remain in Republican hands than the House. Cocaine Mitch is no doubt giddy that he has a comfortable margin to get judges confirmed, and will no longer have to sweat how Lisa Murkowski and Susan Collins will vote (not to mention Jeff Flake, who is gone and replaced by a presumably more iron-willed individual). That these were all comfortable Trump states should not mask the significance of these results, especially considering that some of these races were not as close as predicted, and it is always difficult to knock off incumbents, as Republicans have done it at least four and likely five states.

And of course there’s Beto. Sweet Beto. So many hopeful people cried tears last night, but most of those tears fell outside of the state of Texas, where once again Democrats looked something like this last night:

Lucy

There’s already a ton of talk about how this was a moral victory, and Beto is already a shining star who is a front-runner for the Democrats in 2020. And you know what: he probably is. But what does it say about the state of the Democrat party that one of its stars is a guy who lost a statewide race by three points after spending $70 million? That’s an awful lot of money to get a handful more votes than Ted Cruz’s last opponent. I’m not sure John Tester, Ben Nelson, and Claire McCaskill are sharing in this enthusiasm this morning.

Then again, perhaps progressives should feel good about Beto’s loss. After all, many of them have spilled a lot of digital ink crying about the pernicious influence of money in politics, so Cruz’s victory should be a reassuring sign that money isn’t everything in politics. Huzzah for the outspent underdog!

The state races are a mixed bag. Democrats did win a few governorships, including Wisconsin, where Scott Walker was finally narrowly defeated. But in three substantial states, the Republicans retained control, and in two cases by a wider margin than anticipated. Georgia, like Texas, is supposed to be a red state where the demographics are trending blue, but once again, the statewide results show otherwise. Georgia may get there, but it’s got a ways to go.

The Ohio and Florida elections are the most important results. Not only did Republicans narrowly carry both the Senate and governor’s races in Florida, but Mike Dewine had a fairly comfortable win in Ohio. This matters quite a lot for 2020, and I’ll get to that in a moment. What’s more, even Sherrod Brown had a much closer race than anticipated. Ohio is looking less and less like a swing state, and more like a fairly solid Republican state at this point. It is the flipside of Virginia, which is only a purple state if there is a shade of purple that lacks any red.

As for the portents for 2020, I’ve already alluded to some of them. A Democratic win actually gives Donald Trump a more effective foil. How the Democrats act in the majority will go a long way in determining Trump’s path to re-election. And while much was made of the rough night Republicans had in the rust belt, particularly in Wisconsin, Michigan, and Pennsylvania, I’m not so sure that the results were that ominous for the GOP. Pennsylvania was indeed a wipeout for the Republicans, and that is likely going to be the toughest state for Trump to defend in 2020. But Michigan and Wisconsin are different stories. The House results were not as tumultuous there for Republicans, and as I mentioned, Walker narrowly lost. Debbie Stabenow also had a closer than anticipated call against John James (who had 1/1000 the media attention of Beto and about 1/100 the money). Minnesota, meanwhile, feels a bit like the GOP version of Texas and Georgia: so many expectations, but not so many wins. And I already mentioned Ohio, which I’m not even sure can be considered a true battleground state.

Long story short, reading tea leaves off of election results is always a risky venture, but perhaps never more so than after last night. Either way, no partisan should be feeling completely great after last night.

Well, feel good about Ted Cruz and Larry Hogan, but that’s about it.

Against the Filibuster

There’s a meme that goes around Twitter every now and again: express your unpopular opinion. Based on conversations I’ve had through the years, my views on the filibuster might be unpopular with large swathes of the right and probably even the left.

I’ve never been comfortable with the filibuster. The 60-vote threshold seemed like an especially onerous and unfair threshold when it came to judicial appointments, and I advocated nuking the filibuster long before Harry Reid helpfully did so a few years ago. Therefore, I was happy when Harry Reid and the Democrats abandoned the judicial filibuster, and not just because I knew then it would eventually come back to bite them on the ass.

But the filibuster’s artificial 60-vote threshold seemed unfair even when it came to ordinary legislation. While it is not unconstitutional, it is certainly an extra-constitutional mechanism. Sure, the Senate is free to set its own rules, and the constitution’s language doesn’t prohibit a higher floor either in the context of the Senate’s advice and consent role or for legislation to be deemed as passed by the Senate. Yet it seemed then, and still seems now an extra barrier to getting things done.

Conservatives in particular view the filibuster as a device that works in the interests of limited government. And whichever party happens to be the minority at the moment values the filibuster as a mechanism to help preserve their interests. But the constitution itself is already a document designed to slow the machinery of government. The filibuster is a cheat, and arguably does more to diminish reliance on these other constitutional designs. For instance, the higher threshold to get legislation through the Senate could lead (and has lead) presidents to make end-runs around Congress. In these cases, the filibuster not only doesn’t prevent whatever ill-considered action from going through, it promotes other unconstitutional behavior from the president. It also eliminates the opportunity for compromise that would minimize the potential deleterious effects of ill-advised action.

The filibuster is also unevenly applied. Depending on the specific type of legislation under consideration, it may not even be applicable. Now it no longer is available in the context of judicial nominations. This just leads to more parliamentary maneuvering that further undermines faith in the legislative process.

As alluded to above, reliance on the filibuster draws attention away from other constitutional mechanisms designed to restrain the government. The concentration of power in the executive and judicial branches is a much more serious threat to our constitutional order. If anything, the filibuster might prevent reforms from being enacted to address those concerns. The filibuster, especially if a conservative majority ever emerged in the Senate (I won’t hold my breath), actually would become a tool of the very administrative state we’re supposed to be fighting.

The filibuster is really designed to ensure debate takes place on contentious issues. I would have no problem with a system in which failure to invoke cloture simply meant debate would continue for some amount of time. But real debate would have to take place. Then, after the pre-determined period elapsed, a vote would occur regardless of whether the 60-vote threshold is met.

I thus have no problem with the filibuster as a means of slowing down the process to allow for more debate and potential compromise. It should not be an artificially high upper threshold meaning nothing gets by the Senate without a super-majority.