December 10, 2017 37th and O

In Today’s Crazy Politics, 51 > 52


by Jonathon Marek

Ask any five-year-old to explain democracy, and they’ll probably say something along the lines of, “Whoever gets the most votes wins.” And yet, as anyone who knows anything about the 2016 Presidential election will tell you, this isn’t necessarily true. Fewer votes can get you what you need.

And now that up is down, down is up, covfefe is covfefe, and we’re handwriting amendments to major legislation, I hold that this counterintuitive proposition, even beyond the oddities of the Electoral College, is even more relevant. As ridiculous as this may sound, I think it’s quite possible that the Republicans would have made more progress on their agenda (especially repealing Obamacare) with 51 Senate votes as opposed to the 52 they have now.

There are several reasons for this: first, I think it’s quite possible that with only 51 votes, GOP leadership would have been more conservative, seeking to attack tax reform or infrastructure—both major Trump campaign promises, the former a common GOP specialty, and the latter a bill that could easily have attracted red state Democratic support—before moving on to healthcare.

Passing one of these pieces of major legislation around the time that healthcare failed over the summer would likely have given Trump and Congressional Republicans a major popularity boost, rather than the massive hit the healthcare failure gave them, spurring them on to further legislative success (for what it’s worth, it likely would also have mitigated Trump’s ranting and raving that has undermined his popularity).

This conservatism would also have extended to the process by which GOP leadership went about passing their legislation. It would have slowed them down and made leadership pay more attention to the concerns of individual members—especially moderates like Susan Collins and Lisa Murkowksi on healthcare—before bringing a bill up to a vote. This might have resulted in a bill that would have earned their support, but it definitely would have resulted in a bill passed through sufficiently normal procedures to satisfy John McCain, allowing it to pass.

We saw this with the tax bill: Mitch McConnell and other senior Republicans held off on bringing anything up for a vote—and made significant changes to the bill in the process—and, as a result, were able to get enough votes to pass a bill even with 51 GOP Senators. This stands in stark contrast to the healthcare bill, where plan after plan was thrown at the wall, and none stuck. A process designed to address various Senators’ concerns and pet issues, rather than rolling the dice repeatedly to find a coalition of 50 votes, would likely have found more success.

Alongside this, having only 51 votes would reduce what I’d call “orneriness” on the part of Republican Senators—that is, indicating opposition to a bill to extract concessions with no real intention of being the decisive vote against the final bill. Having 52 GOP Senators allows 2 of them to be ornery without killing the bill, strengthening their negotiating position, spreading out and dissipating blowback from the right, and therefore making orneriness more productive. Furthermore, a sole Senator being ornery with 51 GOP Senators would be a much greater target for opposition from the conservative base than if there were 52 GOP Senators—that Senator would be seen as more significantly imperiling the bill.

Ron Johnson and Rand Paul are quintessential examples of orneriness. Both indicated opposition to healthcare bills at some point of the process, preferring more conservative options, but neither ended up voting against the final skinny repeal plan, and they only indicated opposition to bills (not procedural motions to proceed—orneriness definitely allows delaying bills to get one’s concerns addressed) when it was clear that the bills weren’t going to succeed.

Something similar occurred with “deficit hawks” like John McCain (who voted against the Bush tax cuts), Jerry Moran and Jeff Flake (who had both indicated concern about the bill’s impact on the debt) on this tax bill—threats to oppose the bill if it added significantly to the deficit were issued, some changes were made (but the bill still will significantly increase the deficit), and yet all 3 still supported it.

So, if orneriness is a bluff, then what is the benefit for GOP leadership of mitigating this orneriness by having only 51 Senators? Quite simply, it would reduce the amount of pressure they’re facing to change the bill. Leadership has either had to substantively change their bills due to ornery Senators, or has had to waste valuable time negotiating with these Senators.

Some might assume that an issue with orneriness is that it creates a public position of disunity and, as a result, a low chance of success. I think there is an opposite problem: Republicans are a victim of their own expectations. Throughout both the healthcare and tax reform processes, when the “conventional wisdom” in the media and elsewhere is that the bills will succeed, it’s run into hangups, and when “conventional wisdom” says that the obstacles are insurmountable, the bills have regained momentum.

With tax reform, when the “trigger” proposed by Bob Corker and Flake was struck down by the Senate Parliamentarian, conventional wisdom was that the bill didn’t have the votes. And yet, this past Thursday, it regained momentum in spite of this. Following this, the bill regained “momentum” when John McCain announced his support for it...until Johnson, Flake, and Corker threatened to send the bill back to committee if their changes weren’t met, delaying the final vote to Friday and reversing the momentum. As of Friday morning, conventional wisdom was that the trigger-free bill was in serious trouble. In spite of this, wavering Senators were brought on board through a series of amendments, and the bill ultimately passed with a vote to spare. Something similar happened with healthcare reform, which was repeatedly resurrected from the dead after plan after plan was killed either before making it to the floor, or on the floor itself.

These aren’t just random, meaningless fluctuations or media overreactions. Public perception still matters, as does how Senators perceive public perception. When the media thought the bill was unlikely to pass, they’d focus on the downside to Republicans if they didn’t get a legislative accomplishment with control of both houses of Congress and the White House and the conservative base’s anger. When the media thought it was likely to pass, they’d focus on the bill’s low popularity, liberal opposition to the bill, and the numerous analyses that pointed out the negative effects of the bill. Therefore, there is and was a natural method that pushed toward an uncomfortable stasis where the bill was in limbo between passing and failing, making it harder for Republicans to either build momentum and pass something or admit defeat and move on.

If there were only 51 Republican Senators, it’s quite possible that the media would’ve consistently presumed a lower chance of success, counterintuitively increasing the chance of something actually passing. Would public perception really be significant to change votes if the substance of the bill remained the same? I think so—Collins identified public support for her opposition to the healthcare vote “heartwarming and affirming.” Furthermore, Senators consume a lot of the same media that the general public does, and it’s unreasonable to think that media coverage impacts us but not them.

Politics is a strange business, and, especially in these times, things don’t always make sense. This, in my estimation, is one of them. This is really a counterfactual, but especially if the modified tax bill can’t be passed after conference between the House and Senate, I think Mitch McConnell will seriously rue the fact that he didn’t have more votes—or one less.

One final note: while Doug Jones has a chance to defeat Roy Moore in the Alabama special election on December 12th, this unfortunately won’t provide us with a good read on this. First, Corker has already planted himself firmly in the no column on tax reform, giving the GOP essentially 51 Senators moving forward. If Roy Moore wins and the GOP is able to pass their bill after conference, that will ironically give a slightly better signal of how the GOP might have functioned more successfully with 51 Senators. However, regardless of this, the situation has already changed drastically. The 52-Senator GOP caucus is already facing serious threats from their donors, so the impact of a drop down to 51 Senators would be masked by this and other confounding variables that arise over the course of a legislative session (Trump’s standing as a result of the Russia investigation, and the resultant decline in popularity of the GOP agenda, comes quickly to mind). This will remain a thought experiment that is interesting, possibly informative, and ultimately largely disconnected from reality—in other words, perfect material for us politicos.

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