By John McCormack
Thursday, September 15, 2022
One-party Democratic control of the federal government — unchecked by the Senate filibuster and West Virginia senator Joe Manchin — is now an unlikely but plausible outcome of the November elections. And it’s time to start taking seriously what the consequences of that election outcome would be for the country on a wide array of issues in 2023 and beyond.
But first, let’s briefly discuss why this unlikely scenario is plausible. Shortly after Labor Day, Nate Silver’s polling and elections website FiveThirtyEight gave Democrats a one-in-four chance of keeping their House majority. Over the summer, FiveThirtyEight’s average of generic-congressional-ballot polls showed a GOP lead of two points turning into a one-point lead for Democrats. Following a spate of House special elections in which Democratic candidates beat expectations in an environment with a Democratic president’s job-approval rating hovering around 40 percent, the Cook Political Report with Amy Walter downgraded its forecast of a GOP gain of 20 to 30 House seats to a gain of 10 to 20 seats.
David Wasserman, the Report’s analyst of House races, tells me that a one-in-four shot of Democrats’ holding the House is “roughly in line” with his own view. “Republicans only need to win all the seats leaning to them plus five of 32 races in our ‘toss-up’ column to win the majority, and there are a lot of paths to get there,” he says. But, Wasserman adds, conditions could change between now and Election Day, and “the correlation between presidential job approval and party prospects in congressional races is not as strong as it has been in the past.” It’s also the case that toss-up races “generally break in favor of one party,” Wasserman says. In 2020, the generic-congressional-ballot polls underestimated Republicans by four to five points, and GOP candidates won every single race ranked “toss-up” by the Cook Political Report. Can Democrats nearly sweep the toss-up races in 2022? Two months before Election Day, it looks unlikely but is a realistic possibility in Wasserman’s view.
To be sure, there are other smart political analysts who are much more bearish on Democratic House prospects than Wasserman is. RealClearPolitics senior editor Sean Trende, one of the sharpest election analysts in America, told me on September 8 that if the election were held that day he would peg the Democrats’ chance of holding the House at about 1 percent. Republicans need only to gain five seats to take the majority, Trende said, and “the president’s party since the Civil War has pulled that off five times — kept their losses to under five seats — and all those times featured a president with job approval in the 60s or higher. And that’s not where Joe Biden is.” In Trende’s view, Biden’s job-approval rating (a little under 43 percent when we spoke) would need to rise to 50 percent or higher for Democrats to have a decent chance of holding the House. He’s skeptical that the low-turnout special elections tell us much about the November electorate and notes that the results of Washington State’s August primaries — a reliable predictor of election outcomes because all candidates from both parties are on the same ballot late in the primary season — point to a two- to three-point national-popular-vote win for House GOP candidates in November. Trende estimates Democrats would need to win the national popular vote by perhaps three points to hold the House.
Suffice it to say that I wouldn’t want to bet against Trende — but I also wouldn’t want to bet against Wasserman, so it’s worth taking the possibility of Democratic victory seriously. Moreover, every election is a choice, and voters ought to understand what that choice really is. Right now, Democratic candidates are portraying themselves on many issues as defenders of the status quo — or, in the case of abortion and the Dobbs decision, the status quo ante — but the truth is that their agenda in 2023 would likely mark a radical lurch to the left on policy. That’s because if things break badly for Republicans, they’re likely to break very, very badly: A national political environment in which Democrats hold the House in November is one in which Democrats probably pick up two Senate seats (by holding every Democratic seat and picking off Republicans in Pennsylvania and Wisconsin).
With a House majority and 52 Senate seats, Democrats would have the votes to gut the Senate’s legislative filibuster — the long-standing 60-vote rule for passing most legislation. They would no longer need to seek bipartisan support on any matter, and they would no longer be constrained by the moderating influence of Democrats Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.
Without needing the votes of Manchin and Sinema, “we could repeal the filibuster and then pass Roe v. Wade into law, voting rights into law,” Massachusetts Democratic senator Elizabeth Warren told me recently in the Capitol. “We can get universal child care, tax reform, and more-meaningful gun-safety regulation. . . . Fairer taxes, like the wealth tax on the very richest, become a real possibility.”
The moderate credentials of Manchin and Sinema are somewhat exaggerated. They both voted for the $2 trillion “Covid relief” bill passed in March 2021 — after the pandemic shutdowns were mostly over and vaccines were available — which is widely recognized to have exacerbated inflation. And Manchin inked a deal with Chuck Schumer to spend an extra $600 billion on Obamacare subsidies and green-energy subsidies in the “Inflation Reduction Act,” which will not reduce inflation. But Manchin and Sinema have constrained the Democratic agenda in some meaningful ways. As Manchin correctly pointed out in December, the real ten-year cost of the Democrats’ House-passed “Build Back Better” social-welfare bill is $4.5 trillion. So the rest of Build Back Better — the extra $3.9 trillion in spending Manchin and Sinema stopped in 2022 — is probably the minimum that Democrats would pass in 2023 if they held the House and picked up a seat or two in the Senate. How much farther Democrats would go beyond Build Back Better on spending and taxes would depend on the willingness of senators to the left of Manchin and Sinema to pump the brakes on the full Bernie Sanders budget.
Senate Democrats wouldn’t even need to scrap the filibuster to spend that extra $4 trillion — they could do it under existing rules with a simple majority — but they have made it clear they would get rid of the 60-vote rule if they held 52 Senate seats and a House majority in 2023. In January 2022, every Senate Democrat but Sinema and Manchin voted to override Senate rules in an attempt to pass a sweeping voting bill with a simple majority. Now, congressional Democrats and President Biden are campaigning on scrapping the Senate filibuster to enact a radical federal abortion bill. It’s simply untenable for Democrats to carve out exceptions in two areas of policy without effectively doing away with the 60-vote rule for all legislation.
“Whichever party was able to act without regards to the minority would be inclined to move towards their wing to get the support of their base, and America would move from guardrail to guardrail as policies flipped, depending on which party was in office,” Utah GOP senator Mitt Romney recently told me in the Capitol. “You’d swing from corner to corner, making it very difficult for individuals or investors to plan for the future.”
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What would happen in a filibuster-free Senate with Democrats in control in 2023? Let’s take a look at several issues, starting with one now at the center of many campaigns: abortion. Democrats are campaigning on “codifying Roe,” but the abortion bill they would actually enact if they held the House and removed the filibuster is even more extreme. The bill that every House Democrat but one and every Senate Democrat but one has voted for — the deceptively named “Women’s Health Protection Act” — creates an unrestricted national right to abort a baby until viability, and it would require all 50 states to allow abortion from viability to birth whenever a midwife, nurse, doctor, or other “health care provider” determined that the continuation of the viable pregnancy posed a risk to the mother’s mental health.
The same bill would strike down nearly every state limit on abortion — from parental-consent laws and 24-hour waiting periods to laws banning sex-selective abortion and even to some partial-birth-abortion bans. “Make no mistake. It is not Roe v. Wade codification,” Joe Manchin, the lone Democratic dissenter on the bill, said when it failed to advance in the Senate with 49 votes. “It wipes 500 state laws off the books. It expands abortion.”
The abortion bill also guts conscience and religious-liberty protections for health-care workers, and it would likely invalidate the Hyde amendment, thus providing unlimited taxpayer funding of elective abortions for Medicaid recipients. House Democrats have passed separate bills repealing the Hyde amendment — a measure that has been part of every appropriations bill enacted into law, regardless of partisan control of government, since the 1970s. Research conducted by the Charlotte Lozier Institute has found that the pro-life budget rider saves 60,000 human lives each year. A 2019 study by researchers from Middlebury College, the Guttmacher Institute, and the Bixby Center for Global Reproductive Health estimated that overturning Roe would result in 100,000 fewer abortions each year. It is not an exaggeration to conclude that 219 House Democrats plus 52 Senate Democrats could result in more than 300,000 human lives being deliberately destroyed in the womb from 2023 to 2024.
The attack on religious liberty and conscience rights in a filibuster-free Democratic Senate would not be limited to the issue of abortion in 2023. The LGBT movement’s top legislative priority — the Equality Act — has been passed by the House in 2019 and 2021, and the only Democratic senator who opposes it is Manchin.
From battered-women’s shelters to girls’ high-school sports teams and locker rooms, the Equality Act would make transgender ideology supreme in all 50 states. The bill adds “transgender status” and “sexual orientation” as classes protected under the 1964 Civil Rights Act and greatly expands the number of businesses that count as “public accommodations” — and it explicitly states that “an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.”
University of Virginia law professor Douglas Laycock, a liberal and a longtime supporter of gay marriage, has observed that the bill goes “very far to stamp out religious exemptions.” As Laycock told National Review when the bill first passed the House, the Equality Act “regulates religious nonprofits, and then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”
The likely details of a Democratic agenda in a filibuster-free Senate are a bit murkier on other issues. On immigration, an amnesty providing a path to citizenship for almost all 11 million illegal immigrants in the United States would probably be sought. That proposal was at the heart of a bill President Biden sent to Congress at the outset of his presidency, and every Democrat in the Senate voted for the comprehensive immigration bill that was bottled up in the House back in 2013. Democrats tried to give legal status to 7 million illegal immigrants in Build Back Better, but the Senate parliamentarian ruled the provision out of order under the Senate’s complex budget-reconciliation rules. It’s a good bet that, without the filibuster, some amnesty for almost all illegal immigrants, including those who arrived quite recently, would be enacted.
On guns, it’s not clear what exactly Democrats would do. The House narrowly passed an “assault weapons” ban this summer, but there are a handful of senators in the upper chamber who voted against the ban in 2013 — including Manchin, Jon Tester (D., Mont.), and Angus King (I., Maine) — and others who are noncommittal. Arizona Democratic senator Mark Kelly, who is up for reelection in November, told me he hadn’t seen the text of a ban but would be “willing to take a look.” While Kelly said magazine capacity “shouldn’t be unlimited,” he wouldn’t say whether he’d support a limit at ten or 15 rounds of ammunition. Getting 50 Senate votes on an assault-weapons ban would still be a challenge with 52 Democratic senators, but it’s a possibility.
In a filibuster-free Senate, Democrats would also pass legislation strengthening their grip on power. The “For the People Act” — also known as H.R. 1 — is a 791-page bill that amounts to a federal takeover of elections and includes every item on progressives’ wish list, from banning state voter-ID laws to restricting political speech. (See National Review’s March 8, 2021, editorial “H.R. 1 Is a Partisan Assault on American Democracy.”) How much of H.R. 1 would Congress pass with 52 Democratic senators? “All of it,” says Elizabeth Warren. “In fact, we should go stronger than that. H.R. 1 was the minimum necessary to try to keep voting operational in 2024, but we need to do a lot more on that front.” Warren is probably right that H.R. 1 is the minimum Democrats would do: The bill passed the House in 2021 and had the support of every senator but Manchin.
Without the filibuster, the Democratic power grab wouldn’t stop at H.R. 1. The Democrats would also likely award themselves at least two extra U.S. Senate seats plus three extra House seats (and those extra House seats mean three more Electoral College votes) by granting statehood to the District of Columbia. The House passed the D.C.-statehood bill in 2021, and it would likely have majority support in a filibuster-free Senate. If Democrats also made Puerto Rico a state, they would probably double the number of additional Democratic senators, congressmen, and electoral votes.
Some parts of the Democratic 2023 agenda are likely unconstitutional, and that is where the most extreme Democratic proposal of all — packing the Supreme Court — comes into play. This is one legislative proposal where the threat may be stronger than the execution. Several Democratic senators have vowed they will never support increasing the number of justices on the Supreme Court, and it would be irrational for Democrats angry about Dobbs to do so: If they can accomplish what they want on abortion through their federal bill, they would not need or want to set a precedent on the Supreme Court that guarantees Republicans would respond in kind the next time they controlled Congress and the White House. But if the Court began overturning laws passed by a Democratic Congress, you can be sure that at least some Democrats who have said they’d oppose Court-packing would switch to supporting it. In any event, efforts to intimidate the Court would increase.
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There are, of course, two sides to the political ledger. The predictable practical consequences of divided government over the next two years would mainly involve two things: (1) a stop to additional trillion-dollar social-welfare bills and (2) a bunch of congressional investigations into the executive branch, some of them necessary and others embarrassing and politically motivated (with some overlap between the two).
That future doesn’t seem particularly scary to many people, so President Biden has decided to argue that American voters must hand Democrats unchecked power in 2023 because “Donald Trump and the MAGA Republicans represent an extremism that threatens the very foundations of our republic.”
Biden has not limited this attack against “MAGA Republicans” to politicians such as Arizona gubernatorial candidate Kari Lake and Pennsylvania gubernatorial candidate Doug Mastriano, whose conspiracism and contempt for the rule of law would make them uniquely dangerous in an office that plays a key role in certifying the results of elections. In recent days, Biden has indicated that pro-lifers and advocates of Medicare or Social Security reform are counted among the ranks of the MAGA Republicans who must be defeated to protect democracy. This is nonsense. Mitch McConnell and the overwhelming majority of Senate Republicans opposed efforts to challenge the votes of the Electoral College in 2021. A majority of House Republicans went along with the shameful effort to try to reject the counting of some electoral votes: Some congressional Democrats had pulled the same reckless stunt before, and it was destined to fail in 2021, but it was a stunt made dangerous by Trump’s refusal to accept the results of the Electoral College. That majority of House Republicans would not, however, constitute a majority of the whole House even after a red wave in 2022 (and in any event, it is the Congress elected in 2024 that will count electoral votes, likely under a revised and clarified Electoral Count Act).
Biden and his congressional allies do not seem to appreciate the irony of arguing that democracy depends on unchecked Democratic power in 2023 at the same time as the Democratic Party seeks to pass laws that would tip the scale in favor of Democrats in elections, award the Democratic Party extra Senate seats, and turn the judicial branch into an appendage of the Democratic Party. Nor do Biden and his allies seem to have considered the possibility that, while letting progressives run wild from 2023 to 2024 would be a disaster for conservatives — in both the short run and the long run — it would also make more likely the one thing they say we must avoid at all costs. The backlash to unchecked Democratic governance in 2023 would likely be a boon for Donald Trump in 2024.
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