What Would a Divided Congress Do After the Midterms?

Kevin McCarthy and Chuck Schumer, who may control a branch of Congress each in 2023. Photo: Ron Sachs-Pool/Getty Images

Thanks to an improved electoral landscape for Democrats generally and some unfortunate GOP candidate selections for the Senate specifically, the odds of Democrats hanging on to control of the upper chamber have improved significantly of late. At present, FiveThirtyEight gives Democrats a 63 percent probability of maintaining a Senate majority when Congress reconvenes in January 2023.

Democratic odds of winning the House again have also improved but not enough to make it a good betting proposition: FiveThirtyEight gives Republicans a 78 percent probability of flipping the House, as one would expect in a midterm with the party controlling the White House holding a narrow four-seat majority. On the three occasions since World War II when a president’s party has lost less than five House seats in a midterm election (1962, 1998, and 2002), the president’s job-approval rating was over 60 percent. While Joe Biden’s approval rating has finally stopped dropping and is slowly improving, he’s miles away from that kind of popularity.

This means the fragile governing trifecta Democrats held during Biden’s first two years in office will soon come to an end and, as in 45 of the 77 years since World War II, we will have divided government in Washington. So what will that be like?

In the previous century, when the country was less ideologically polarized, presidential parties could often assemble bipartisan coalitions even without a governing trifecta. But in recent decades, particularly with the rise of the Senate filibuster as a routine obstructionist device, divided government has often meant gridlock and discord. The 117th Congress of 2019 to 2020 provided a good example. It began with the longest government shutdown ever, the GOP-run Senate became a machine for approving Trump’s judicial nominees, and the Democratic-led House absorbed itself with Trump investigations, culminating in impeachment proceedings. There was little legislative activity until the COVID epidemic exploded and the White House and Congress were frightened into enacting the $2 trillion CARES Act.

The next two years probably won’t be as wild a ride even if the midterms deliver a divided Congress, but here are some factors we can anticipate with some surety.

The Senate filibuster will be safe for a while longer.

In the current Congress, all but a few Senate Democrats were resolved to kill or significantly restrict the filibuster, which lets 41 senators stop any legislation that’s not part of a budget-reconciliation bill. If Republicans take over the House, there will be no real point in killing the filibuster since the House will be able to stop any legislation Senate Republicans would want to filibuster. So Congress still won’t have true majority rule until Democrats or Republicans regain a trifecta.

There won’t be any big budget-reconciliation bills.

Budget-germane legislation that requires only a majority vote is the quickest path around the filibuster. That’s how Republicans enacted tax cuts in 2017 before they lost control of the House and how Democrats enacted both the American Rescue Plan stimulus legislation in early 2021 and the Inflation Reduction Act President Biden signed into law earlier this month. You can forget about that in a divided Congress, in which each chamber’s leadership sets the agenda and controls the floor.

The Senate will keep confirming Biden’s appointees.

If Democrats keep the Senate, Biden will continue to benefit from timely confirmation of his appointments to high-level administration and federal judicial posts, as those types of nominations are already exempt from the filibuster. So if Democrats should find themselves with another Supreme Court vacancy in Biden’s first term, they shouldn’t have a problem filling it.

The House investigations will be wild.

Anyone who remembers the Benghazi mess and other obsessive investigations the House undertook during the last six years of the Obama administration can get a sense of how Kevin McCarthy and his troops will spend their time in the next two years if they control the chamber. Following the recent FBI operation at Mar-a-Lago, McCarthy promised more or less to go nuts the minute he grabs the gavel:

The Trump-dominated House GOP will have no problem at all rationalizing a menu of investigations as payback for what House Democrats did to the former president in the past few years. In fact, the narrower McCarthy’s margin of control winds up being, the more he may be vulnerable to a revolt from his caucus’s ultra-MAGA faction, which would push him to back all sorts of outrageous House probes. It wouldn’t take much pressure for Biden-impeachment sentiment to bubble up.

A closely divided Congress could make 2024 even more intense.

Party control of the House rarely changes in a presidential election year, but if Congress comes out of this year’s midterms closely divided, 2024 could be an exception. Meanwhile, the Senate landscape in 2024 is very pro-Republican: Democrats will be defending 23 Senate seats, six in states formerly carried by Trump, while Republicans will be defending just ten seats, all in states Trump won twice.

The overriding contest, of course, will be for the presidency, and whether Trump or one of his protégés is the GOP nominee, Democrats need badly to win. If they don’t, then hanging on to divided government could be critical for democracy, as well as for Democrats.