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Divided government presents unique challenges to the new Congress

By Joel D. Kassiday
HillStaffer Vice President

Never before in our history has a new Congress started while part of the federal government was closed because of an impasse over spending bills. Yet that was the case Jan. 3 when Democrats took a 235-199 majority in the House of Representatives and Republicans added two seats to their 53-47 Senate majority.

While negotiations continue in order to overcome sharp differences between Democrats and Republicans over border security, the resulting government shutdown, which has closed one-third of the federal government, may foreshadow many of the difficulties ahead from divided government.

No matter what legislation passes the House, despite which party nominally controls that chamber, unless it can pass the Senate it will never become law. The House and Senate superficially are similar in structure but are fundamentally different legislative bodies.

The House represents the people, while the Senate represents the states. A majority in the House is everything. With 218 of the 435 possible votes, almost anything is possible. This year the House will experience a period of adjustment as Democrats take the majority for the first time since 2010. Many House Democrats have never served in the majority. Conversely, many Republican House members have never served in the minority.

In the Senate, there are 100 equal members, with each senator being able to stop or hold up any bill. A supermajority of 60 senators can limit any filibuster or extended debate, but it is very rare when any party controls 60 or more votes.

The new House has a large enough Democratic majority to stay effective unless conflicts between progressives and more moderate members boil over. The 53 GOP senators, however, will always be at least seven votes shy of the 60 votes needed to proceed with most legislation, and getting the support of seven Democrat senators and keeping all 53 Republicans on board will never be easy.

In the last Congress, most of the legislation passed in the House never was considered by the Senate, when the Republican majority was only 51. All it took was two GOP defections to stop the Republican majority from moving forward, as happened with Obamacare reform.

With the Democrats controlling the House this year and the Republicans having only a slightly larger Senate majority, it is even less likely for consensus to be reached.

There are a few topics, however, that may lend themselves to bipartisan, bicameral agreement, just like late agreement last year brought final passage of a farm bill reauthorization and landmark criminal justice reform.

Foremost this year is the possibility for a substantial infrastructure bill to restore the nation’s aging and dilapidated roads, bridges, and airports. An infrastructure bill is nevertheless not certain because of disagreements within and between the two parties on priorities and how to pay for it all.

Another area for possible agreement is health care, where both parties want to respond to constituent demands for changes to curtail rapidly rising healthcare costs.

There may also be successful efforts to establish limits on the Trump Administration, such as the Senate resolution passed Dec. 13 with bipartisan support trying to withdraw U.S. support for the war in Yemen and to condemn the Saudi crown prince for the murder of Jamal Khashoggi.

Other than a few possibilities, it is difficult to see how the Democratic House  and the Republican Senate can come to terms on even the most basic legislative responsibilities, such as adopting a budget resolution or passing the 12 appropriation bills needed to fund the government each year.

The Democratic House is likely to spend a great deal of time trying to investigate President Trump and his Administration, and may even try its hand at impeachment, when only a simple House majority is needed to start a trial in the Senate. Even if the House acts, it is unlikely that the 67 senators needed to convict the President will vote to do so unless the impeachment charges are astoundingly clear-cut and egregious.

Rather than proceeding with further tax reductions, the Democratic House may try to reverse some of the cuts made last year. Such reversals will almost certainly be stopped in the Republican Senate, backstopped by a potential presidential veto. Extending expiring tax provisions may be one limited avenue for bicameral agreement. As it is every two years, the new Congress will be predictably unpredictable and will offer unexpected twists and turns. One thing is certain, the new Congress will continue an already bumpy ride, so buckle your seatbelt and keep your eyes peeled.