It's Duck Season!
Why Congress is unlikely to do much for the two months after the election.
JULY 13, 2010.
By JAMES TARANTO
Last week our John Fund issued a warning that readers will find either frightening or comforting, depending on their political inclinations:
There have been signs in recent weeks that [Democratic] party leaders are planning an ambitious, lame-duck session to muscle through bills in December they don't want to defend before November. Retiring or defeated members of Congress would then be able to vote for sweeping legislation without any fear of voter retaliation.
Fund assembles a Democratic wish list, including tax increases, "card check" (forcible unionization), an "energy bill" (i.e., more tax increases), as well as "ratification of the New Start nuclear treaty, a federally mandated universal voter registration system to override state laws, and a budget resolution to lock in increased agency spending." He concludes:
Many Democrats insist there will be no dramatic lame-duck agenda. But a few months ago they also insisted the extraordinary maneuvers used to pass health care wouldn't be used. Desperate times may be seen as calling for desperate measures, and this November the election results may well make Democrats desperate.
Color this columnist skeptical. Fund's article is titled "The Obama-Pelosi Lame Duck Strategy," and we have no doubt that President Obama and Speaker Nancy Pelosi would do this if they could--especially if they know that Jan. 3 will mark the end of Democratic control of Congress. We just don't think they'll be able to do it. Arguably it would be easier to get legislation through the House after the election than before, but the Senate would pose a daunting, and we suspect insurmountable, obstacle.
Note that the following analysis is based on the assumption of a big GOP win in November. That outcome is not guaranteed, but without it, the lame-duck scenario is moot.
In the House, Democrats currently hold a 255-178 majority. Two seats are vacant, to be filled until January by special elections Nov. 2, so that the Democratic majority during the lame-duck period will be approximately the same as it is now--but with one importance difference: As of Nov. 3 and for two months thereafter, every Democrat in the House either will be on the way out (voluntarily or not) or will have just won election under circumstances that are highly adverse for his party. Thus the re-election concerns that made it so hard for Pelosi to round up votes for ObamaCare will be substantially attenuated.
In most years, such concerns would be almost entirely eliminated. A Democrat who can win in 2010 can be assumed to have a relatively safe district, just as a Republican who won in 2006 and '08 can. In 2012, however, 428 of the 435 congressional districts will have been redrawn owing to reapportionment and redistricting (the only exceptions are those that are coterminous with sparsely populated states). Many incumbents will be protected, but some will find themselves in less-safe districts, or in intraparty battles with fellow incumbents in states that lose congressional seats.
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.Still, Pelosi, even as a lame-duck speaker, may be able to round up enough votes to pass controversial legislation. The Senate, however, is an entirely different story.
Republicans currently have 41 Senate seats. That number is likely to rise to 42 in the lame-duck session, as GOP candidate Mike Castle is favored to win a special election in Delaware. (There will also be a special election in New York, and there may be one in West Virginia, but Democrats are favored to hold both those seats.) That means that Democrats will be unable to overcome a filibuster without at least two Republican votes.
There are ways around the filibuster. Budget legislation--presumably including a tax hike--can pass the Senate with a simple majority. There is also the "nuclear option" (also known as the "Byrd Option," after former Grand Exalted Cyclops Robert Byrd), described by blogger "Dafydd":
In the Byrd option (here is a primer at Wikipedia), the Parliamentarian of the United States Senate (currently Alan Frumin), rules a filibuster "out of order;" then the Democrat majority votes to affirm this ruling. This essentially allows a filibuster to be broken by a simple majority, not the 60 votes usually needed . . . assuming the majority is willing to overturn all previous traditions, precedents, and understandings of the Senate and among senators. . . .
Remember, if they succeed in killing the filibuster, they will have free rein to enact anything they want; they can rampage like a bull in a candy store.
But there is reason to expect many Democratic senators would be hesitant to pass major unpopular legislation, whether by the nuclear option or not. As we noted above, every Democrat in the House after election day either will be on his way out two months later or will have just won re-election in an adverse political climate. The number of Democratic senators who will be similarly situated--i.e., retiring, defeated, or just elected to a six-year term--will be 17.
That means that assuming the Republicans stand firm, a simple majority would require the votes of 33 of the 41 senators whose seats are up in 2012 or 2014. The vast majority of those senators were elected in the big Democratic years of 2006 and 2008, so that many can be expected to be vulnerable the next time around.
The prospect of a tough 2012 for Democratic senators illustrates an additional peril of the nuclear option. A Republican Senate majority after this year's election, while possible, is unlikely. But the large number of Democratic seats up two years later makes a GOP majority in 2013 a considerably stronger possibility. A Republican president is also quite possible, albeit far from a sure thing. Like Republicans in 2009, Democrats then may be glad that they did not abolish the filibuster when they had the opportunity.
One final reason to doubt the lame-duck scenario is psychological: Surely Democrats will be stunned and demoralized if the results are bad enough to make lame-duckery relevant. To be sure, this was what was supposed to happen after Scott Brown won. But in November, the Democrats won't be able to blame their fate on the hapless Martha Coakley. |
