Holding the Senate Is the Key

While Republican control of the House of Representatives after the November elections would be helpful, holding control of the Senate is crucial.

Whether we like it or not, the constitutional framework of our republic is in tatters.  Federal courts and the Executive Branch have vast powers exceeding dramatically what our Founding Fathers intended.

President Trump will be in office at least through January 2021, and if Republicans hold the Senate, it is likely that he will be able to appoint, in addition to Justice Kennedy's replacement, at least one more justice. Ginsburg is 85, and Breyer is 79 – simple actuarial tables suggest that one more of the leftist seats on the Supreme Court would be filled by a Trump nominee, which would give the court a 6-to-3 conservative edge.

Ideally, Justice Thomas, who is 70, could retire during the two year period between 2018 and 2020, which would solidify the conservative majority for a generation.  If Trump won re-election in 2020 and Republicans held the Senate, then the conservative majority could be bumped up to a 7-to-2 majority, which would remove the entire federal bench from interfering with Trump and Congress.

The Senate is vital not only because of Supreme Court appointments and appointments to the lower federal courts, but because appointments to federal independent regulatory agencies, whose members typically serve for a number of years and whose activities, though important in adopting regulations (or deregulation) of federal actions, often pass completely under the radar, also must be confirmed by the Senate.

Cabinet officers and other high-ranking Executive Branch officers must be confirmed by the Senate as well.  This can be a relatively easy process or a difficult ordeal, depending upon which party controls the Senate.  Along with commissioners on independent regulatory agencies, these Cabinet-level officials wield a great deal of practical power in our federal system.

A president whose party controls the Senate – even if that control is wafer-thin – has a dramatically stronger hand in implementing his agenda and his political philosophy.  Senate committee chairmen will always have at least a one-vote partisan advantage on their committee and will be able to call hearings.  Once reported out of committee, the majority floor leader can place a vote on an appointment before the Senate when he chooses.

Because real power rests today in the White House through the exercise of executive orders and the like, controlling both houses of Congress is simply not that important any longer.  Legislation has been replaced by executive orders, independent regulatory decisions, and federal court rulings.  While this does not mean that federal legislation no longer matters, it does mean (for better or worse) that the vast majority of significant federal action no longer is passed by Congress.

The House of Representatives, like the Senate, no longer has the sort of legislative power envisioned by the Constitution.  The House, though, has a much more volatile membership than the Senate.  Every member of the House must win re-election every two years.  Electoral "waves" therefore affect the composition of the House much more than the Senate.

Federal court decisions that have weakened partisan gerrymandering also mean that congressional districts are likely to become much more competitive than in the past, so even a mild "wave" could flip two dozen House seats.  In other words, the House of Representatives has little power, and its members have become increasingly vulnerable in their re-election campaigns.

If the Senate is the key to President Trump's political success over the next two years, what are Republican prospects of holding the Senate?  Excellent, really.  The Senate class up for re-election last faced voters in 2012, when Obama won re-election and Democrats nationally did better than usual because of that.

Add to that fact the rating of RealClearPolitics, which lists eight races as "toss-up."  All eight are in conservative states: West Virginia, Tennessee, Indiana, Missouri, North Dakota, Florida, Arizona, and Nevada.  Some other Democrat Senate seats could fall as well.  Jon Tester has always squeaked by in Montana, and Menendez in New Jersey faces serious corruption charges.

If Republicans won only half of those toss-up states and nothing else, then Republicans would add two seats to their current numbers in the Senate.  If that happens, then Democrats will be in a weaker position over the next two years than they are today – unable, really, to do anything.  The Senate is the key, and the prospects are good.

Image: Katexic Clippings Newsletter via Flickr.