111th Congress Senate Forecast: Overcast With Chance of Gridlock

As the 2008 election looks good for the Democrats in the Senate, who, as we said yesterday, will probably pick up between 4-5 seats and enlarge their majority to 55 or 56 (and likely enlarge the majority in the House of Representatives to 242 from the current 233), it would seem that Democrats might actually be able to pass significant amounts of legislation. This would be even more likely if Obama wins the presidency, eliminating the veto threat and negating the need to broker as many deals with Republicans.

Despite the almost certain increase in Democratic majority in the Senate, Democrats will likely still face an uphill battle against Republicans in trying to pass legislation. Even Democrats admit that Republicans are masters of parliamentary procedure and excel at putting the procedural brakes on legislation. They also aren't timid about using that power in the current political environment.

Republicans set a new record for filibusters in the Senate during the 110th Congress measured by the number of cloture votes (a motion to cut of debate and vote on a bill or amendment). The Republicans set the record at 62 in December of 2007, only halfway through the Congressional term. That surpassed the 107th Congress's 61 votes between 2001-02, when Democrats had just regained control of the Senate and Bush had just defeated Gore for the presidency.

Republicans may be on track to have over 100 cloture votes this Congress, and they are open about their strategy of obstruction. According to the New York Times, Senator Mitch McConnell (R-KY), the Senate Minority Leader, said in December "I think we can stipulate once again for the umpteenth time that matters that have any level of controversy about it in the Senate will require 60 votes." This strategy has two basic levels: win over the Republican base by stopping Democrats; and (more incredibly) blame Democrats for not accomplishing anything while being in charge for the first time in 12 years. This is indeed a demonstration of dramatic irony as up until this Congress, Republicans lambasted Democrats for using the filibuster and threatened the so-called "nuclear option" of eliminating it altogether.

It may not make sense—or even be valid—for Republicans to blame Democrats for a slow down in legislation; but it is effective as a message to the average American who does not follow Congress’s daily proceedings. Even McCain has called this Congress the "do-nothing" Congress, despite the fact that he and his party are the ones slowing down legislation.

Many Democrats are hoping a greater majority in the Senate and House, along with a Democratic president, will allow them to pass a great deal of legislation that has so far languished as a result of the use of the filibusters, procedural maneuvering, and presidential vetoes. However, even if the Democrats gain 56 seats, the largest number they are most likely to achieve in 2008, they would still need 4 Republican votes to pass any legislation. Democrats have, at times, been able to gain up to 6 or 7 Republicans to vote for their cloture motions to cut of debate and end a filibuster, but Republican discipline is remarkably tough.

However, the Democratic gains would most likely replace the moderates that vote with them already; this still means the Democrats come up 4 votes shy of the necessary 60. On the ideological spectrum, the most moderate Republican Seats Seats are Gordon Smith of Oregon, Norm Coleman of Minnesota, Susan Collins of Maine, Olympia Snowe of Maine, and Arlen Spectre of Pennsylvania. This leaves 5 Republicans more likely to work with Democrats than not, which would seem to allow the Democrats to achieve 61 votes in the Senate when needed.

One problem with this scenario is that Democrats are unlikely to always get all five of these moderate Republican votes. Another problem is that Joe Lieberman of Connecticut not only actively supports John McCain, but he attacked Barrack Obama at the Republican convention and, according to Factcheck.org, either wildly exaggerated the truth or simply lied about Obama's record in order to undermine the Democrats. Lieberman will likely lose his chairmanship of the Homeland Security Committee, and it is also quiet possible that he will be booted out of the Democratic caucus; he is already an Independent, which would cause him to caucus with Senate Republicans.

This puts Democrats back at 55 seats, meaning that they would have to get every single moderate to vote with them on any piece of legislation with which Republicans have even the slightest disagreement (which would be a majority of legislation). Democrats would likely pass far more legislation than they have so far, and with a Democratic president things would be even easier (relative to the current stand still), but this still presents a huge uphill battle against Republicans who hold the advantage when it comes to procedural maneuvering.

In order to truly advance their own agenda without any significant Republican interference, Democrats would need to pick up 6-7 seats in the Senate, creating a 57-58 majority, as well as with winning the Presidential race. This means they need to pick up Senate seats in States like like North Carolina, Mississippi, Minnesota, and Oregon, which are close, but have consistently polled in the Republican candidates’ favors.

This does not mean Democrats won't be in a far better position than they are now, where the Republicans can often effectively dictate their own agenda while halting the Democrats and simultaneously blaming them for the slow down. Polling has tightened up in all 2008 elections, after swinging in the Republicans’ favor for the last few weeks, but it remains an uphill battle with momentum still with the Democrats.

When The Music Stops Will There Be 60 Democrats Sitting?

Today we will take a break from the presidential race and take a look at the Senate races that are occurring this fall. While they have garnered far less attention in the national media, the break down of Senate members is a critical factor in the ability of a president to get anything done.   

The magical number that is required to get anything real done in the senate is 60 votes. This is because it takes 60 votes in the Senate to invoke cloture and end debate. As the Senate is designed to be a more deliberative body than the House, the rules for debate in the Senate are much less structured than in the House. Consequently, a single senator can prevent all senate business from occurring by refusing to yield the floor. If 60 of his/her colleges disagree with the filibuster, they can vote to end debate by invoking cloture.   

The net result is, in order to get any major or controversial piece of legislation to a vote in the Senate, the majority party needs to have 60 reliable votes so that it knows it can end debate and get a vote on a bill. Based on the current breakdown in the Senate, if the democrats can take nine seats currently held by republicans in the fall, they will reach the magical number of 60.   

It is important to note that the democrats actually have only 49 members in the Senate currently, but the two Senate independents caucus with the democrats, which give them 51 votes on procedural matters. On top of this, one of the independents is Joe Lieberman, who has angered many democrats for his support of Bush and McCain. Thus, in reality while the math may say nine seats, there is the chance that the democrats will really need ten seats to switch party lines, without losing any of their seats that are up for grabs.   

So the $64,000 question is can they do it?   

There are several factors to consider. First, only a third of the Senate is up for election at a time. So only 34 seats are actually up for grabs (the extra seat is a special election in WA). Second, of these seats, 22 are currently held by republicans, and 12 by democrats. Thus, more republicans are up for reelection this time around than democrats. With such a high number of republicans up for reelection it is unlikely that all 22 seats will remain republican.   

A third factor to consider is the number of incumbents that are rerunning in these 22 republicans seats. The incumbent advantage is well documented in the Senate. According to latest data, about 85% of incumbents win reelection. So, while it is not impossible to knock off an incumbent in a reelection, the odds of the democrats winning a previously held republican seat drastically improve for elections in which a republican incumbent is not running. In examining the 22 republican seats up for election, seven do not have incumbents (CO, ID, MS, NM, NE, VA, WY). Of these seven, only CO, NM, and VA are states that are not solidly republican.   

The last aspect to consider is in what states the 22 republican seats are from. Clearly, it should be easier for a democrat to be elected to the senate from a “blue state” than a “red state,” where blue and red are defined in how they voted in the 2004 Election. Taking a look at the 2004 Election map, of the 22 republican seats, only two (MN and ME) are from blue states in 2004.   

Taking all of this together, while it seems that the democrats will pick up seats in the Senate, it is unlikely to be the nine (or ten) needed to reach 60. It is much more likely to be 3-5 seats. The reason for this is simply that while there are vastly more republicans up for election and a lot of republican retirements, these seats are predominantly safe republican seats from states that reliably vote republican. Of the 22 republican seats, 14 are very safe for republicans, with polling numbers all above 90% that a republican will be elected.   

This is not to imply that it is impossible, just highly unlikely. The current polling, while not as frequent as for the presidential race, backs up this analysis. If the race was held today, based on current polls, the democrats would hold on to all of their existing seats and gain seats from CO, AK, NH, NM, and VA. Thus, they will shift their majority from 51 to 56. Between these five pick-ups and the 14 safe seats, this only leaves 4 other races (NC, MN, OR, MS) out there. While republicans in these races are not up by the 90% mark, they are all leading by about 70%. Since the democrats would have to win them all to get to 60, it seems unlikely to happen.  

Thus, while the democratic majority in the Senate will increase, it will still be short of that magical number 60.