Sinema out, Warnock in – Democrats narrowly control the Senate and Republicans the House, but gridlock won’t be the biggest problem for the new Congress
In the wake of the 2022 U.S. midterm elections, a general sense of the political landscape in the upcoming 118th Congress has taken shape. With Sen. Kyrsten Sinema’s announcement that she is leaving the Democratic Party and Sen. Raphael Warnock’s victory in Georgia’s runoff, Democrats will maintain control in the Senate, while Republicans will take control of the House.
Divided government sparks fears of gridlock, a legislative standstill. At face value, this makes sense. Given the different policy priorities of the two major parties, you might expect to see each party passing legislation out of the chamber it controls that has little chance in the other chamber – and thus no chance of becoming law.
Logically, this means a less productive legislature than one in which a single party with a unified agenda controls both chambers and the presidency.
But as a political scientist who studies partisanship, I believe that divided government – including during the upcoming legislative session – will not produce greatly different legislative results than unified government.
This isn’t exactly a hopeful story, though.
Not much passes
The first reason that divided government isn’t less productive than unified government is because unified government isn’t very productive in the first place. It’s really hard to get things done even when the same party controls both chambers and the presidency.
Most legislation only clears the Senate if it has the 60 votes needed to break a filibuster. Neither party has come close to a so-called “filibuster-proof majority” of 60 seats since 2010, when Democrats briefly held 60 seats prior to Massachusetts Sen. Ted Kennedy’s death and the election of Republican Scott Brown to that seat. Thus, even a unified government is likely only passing measures that have some degree of minority party support.
There are ways to force passage of legislation when one party doesn’t want it to pass. A process called budget reconciliation is not subject to filibuster, but it can only be used on provisions that deal directly with changes in revenues or spending. This is what happened with the Inflation Reduction Act of 2022, which Democrats were able to pass via reconciliation, with Vice President Kamala Harris casting the tiebreaking vote.
Further, legislative success under unified government assumes that the majority party is united. There is no guarantee of this, as seen in 2017 when Republican senators John McCain, Lisa Murkowski and Susan Collins joined Democrats in blocking the repeal of the Affordable Care Act.
Between 2011 and 2020 the vast majority of new laws clearing the House – roughly 90% – and the Senate – roughly 75% –did so with a majority of minority party members in support.
Even landmark legislation usually has support from most minority party members in at least one chamber. For example, the substantial 2020 revision of the North American Free Trade Agreement, or NAFTA, passed the House and Senate with overwhelming bipartisan support, as did the defense bill that created the Space Force.
Rewards – and risks – in crossing lines
On a more positive note, divided government may still provide opportunities for legislative breakthroughs.
The reason? The local orientation of Congress – lawmakers need to respond to their district’s voters.
In the House, according to a New York Times analysis, Republicans won 10 of the most competitive districts, including five in New York state alone. But the Cook Partisan Voting Index, which measures how strongly a district leans in favor of one party or the other, scores some of these districts as tilting Democratic – potentially giving these Republican members of Congress reason to reach across the aisle. The same goes for Democratic lawmakers whose districts tilt Republican.
But these kinds of mixed districts can also make it hard for sitting lawmakers to vote with their own party. While parties will work to keep a united front, research suggests that voters may punish those members of Congress who toe the party line too closely – providing a potential incentive for crossing party lines. Democratic legislators in Republican-leaning districts who voted for the Affordable Care Act, the Dodd-Frank financial regulation bill, or the stimulus bill, all Democratic Party priorities, suffered electorally in the 2010 midterms, receiving a lower vote share than those who voted against the legislation. In many cases, these lawmakers lost their seats.
Still, defections may be more likely given weak leadership, and currently it’s not certain who will fill the speaker’s role in the next Congress.
More consequential aspects
You don’t have to search for long to see examples of large legislative achievements produced during periods of divided government.
Divided government produced welfare reform in the 1990s and Social Security reform in the 1980s. The Coronavirus Aid, Relief and Economic Security (CARES) Act passed a Republican Senate and a Democratic House overwhelmingly in March 2020.
Certainly, there have been times during which unified governments have pushed legislation through with little minority party support. The Affordable Care Act and the Trump tax cuts were among them. But bipartisan legislative victories are much more common.
There are probably more consequential aspects to the GOP’s takeover of the House of Representatives than concerns over legislative gridlock.
House Republicans have already talked about using the investigatory powers of the chamber to investigate everyone from Hunter Biden to Anthony Fauci. A debt ceiling showdown, in which the GOP might use the threat of default on the U.S. government’s debt to force spending cuts, looms for what feels like the dozenth time in the past several years.