George Will’s Friday column has kicked up a stir by arguing that voters of all ideological stripes should hand majority control of the Senate and House to the Democrats in November. This is a profoundly bad idea, and Will makes nearly no effort to consider its actual consequences.
There are four main reasons why running Republicans out of Congress will not produce the results that Will is seeking. One, Democrats do not respect the values Will champions and cannot be counted on to advance them. Two, the recent history of divided government shows that it moves policy toward the out-party’s ideology and away from the in-party’s, but it does not actually restrain corruption or abuse of executive power; if anything, it tends to expand them. Three, if voters follow Will’s advice, it will make the Trumpist faction more, rather than less, powerful within the Republican party. Four, Will underestimates the importance of the judiciary and the administrative state and the extent to which Democratic control of Congress would empower them to further erode the constitutional powers of Congress as well as those of the presidency.
Congress in Decline
Will, perhaps the dean of conservative columnists at this point in his career, believes strongly in small government, the limitation and separation of powers, and the deliberative processes of the Senate — all essential ideas that have been sadly out of favor in Washington for many decades. Will’s case against the GOP Congress makes fair points about this — for example, the near-death of amendments on the Senate floor. But if Republican commitment to these ideas has been uneven over the years, Democratic enmity to them has been open and consistent, and grows only more so.
The watershed in the decline of the amendment process was not Donald Trump’s becoming president but Harry Reid’s becoming Senate majority leader in 2007 — the last time voters decided to check a Republican president by electing a Democratic Congress. It was Reid who dramatically expanded the process of “filling the amendment tree” to cut off the use of amendments on the Senate floor, and Reid expanded the tactic to the point where even Politico referred to his “iron grip on Senate floor” and Polifact had to concede that the Senate voted on more amendments in January 2015 than in all of 2014. Will does not even bother trying to argue that a Senate run by Reid’s protégés, Chuck Schumer and Dick Durbin, will suddenly be more reverential of senatorial independence. A similar story could be told of the decline of the budget process, in which complicit Republicans have played the supporting role and Democrats the lead. The Obama years saw the near-complete collapse of the regular process for passing a budget, starting under unified Democratic government and getting no better after Republicans took the House and then the Senate.
And what of executive powers? On one very important topic — trade — the Republican Congress has indeed been cowed into shameful inaction when they ought to be restraining Trump from economically ruinous tariffs. Would Democrats do better? Previous Democratic Congresses have tried to hobble free-trade agreements by imposing labor and environmental standards on our trading partners, and the Bernie Sanders movement was nearly as hostile to trade agreements as Trump is. The prospect of bipartisan action that effectively constrains Trump on trade is far from assured even with the Democrats in charge.
A page of history is worth a volume of logic, as Oliver Wendell Holmes Jr. once said.
Would Democrats improve the integrity of government? One of the poster boys for ethical problems in the Trump administration is EPA head Scott Pruitt, who has been embroiled in an endless series of controversies over remarkably petty perks he has squeezed out of his department and the people who do business with it. Pruitt’s case is most remarkably similar to that of Mike Espy, Bill Clinton’s agriculture secretary, who was ultimately indicted but acquitted by a sympathetic jury for receiving football tickets, a car lease, and luxury-hotel stays — more or less the same sort of thing. Where is Mike Espy today? He’s running as a Democratic candidate for the U.S. Senate in Mississippi. If you followed George Will’s advice, you’d vote for him.
Divided Government: A History
A page of history is worth a volume of logic, as Oliver Wendell Holmes Jr. once said. Will’s column offers no such historical perspective, and he treats this as a brand-new question on which we have no experience. In fact, it is worth reviewing the past four presidencies in which one or both houses of Congress were turned over to the opposing party in midstream: Barack Obama, George W. Bush, Bill Clinton, and Ronald Reagan. Their experiences do not support Will’s view of how this will all play out.
Barack Obama: House (2010), Senate (2014): Alarmed by Obamacare and other sharp turns to the left in 2009–10, voters gave Republicans control of the House in 2010. After several false starts due to bad candidates, they handed over the Senate as well in 2014.
The result? Ideologically, Republicans provided a check on Obama, shifting policy to the right. The runaway growth of federal spending was modestly restrained. New liberal legislation, including a bipartisan initiative on gun control, was quashed. Obamacare got no new help from Congress, which defunded the “risk corridor” insurer bailout. Obama’s effort to nominate a liberal replacement for Justice Scalia was thwarted, ultimately resulting in a conservative replacement under Trump.
But did Republicans effectively check Obama on issues of government integrity or executive overreach? Not so much. Eric Holder was cited for contempt but stayed on as attorney general. Thomas Perez was cited for official misconduct but still became secretary of labor and is now the chairman of the Democratic National Committee. The endless Benghazi investigations did eventually bring an end to Hillary Clinton’s four-decade corruption spree by spawning the email investigation, but only after she had long been out of office and only because she was going back before the voters.
Did Republican control of the House and, later, the Senate restrict Obama’s executive overreach? Quite the contrary; it drove him to justify ignoring the lawmakers’ role in lawmaking (“I have a pen and a phone”) on scores of issues from health care to immigration to guns. He took us to war in Libya without congressional approval. True, he stepped back from airstrikes in Syria when Congress wouldn’t sign on — but as Ben Rhodes later admitted, his goal in doing so was to “drive a stake through the heart of neoconservatism” and spread to Congress the blame for his own failure to do anything to stop ISIS atrocities or Assad’s genocidal policies. And Bob Corker, the hero of Will’s piece, was the architect of Congress’s abdication from the Iran deal, enabling Obama to sign an agreement with a monstrous terror-supporting tyranny while ignoring the Senate’s constitutional role in approving treaties.
Meanwhile, Obama used divided government to his own advantage. In 2012, with the initial wave of anger at Obamacare defused, he ran against the Republican Congress — a strategy he copied from Clinton, and that led him to reelection.
George W. Bush: Senate (2001), House & Senate (2006): Bush faced a shift to divided government twice, albeit only once at the hands of the voters. In 2001, Democrats took control of the Senate when Jim Jeffords switched parties to protest the Bush tax cuts. What followed was, at times, a constraint on conservative policy: For example, conservatives were told that No Child Left Behind needed to jettison its school-choice provisions to win liberal votes from senators such as Ted Kennedy. But the overall picture while the Democrats held the Senate was a march of growth for big government and executive power: NCLB, the Patriot Act, Sarbanes-Oxley, McCain-Feingold, and congressional approval for the wars in Afghanistan and Iraq.
What did Republicans accomplish by winning Congress in a landslide two years into Clinton’s term? Ideologically, quite a lot.
In 2006, voters handed control of both houses to the Democrats. Leaving aside the economic collapse that followed this (was America really that much better off in November 2008 than in November 2006?), what were the policy implications? Again, things moved left domestically: a minimum wage hike, the TARP, auto, and other bailouts, the end of many conservative judicial nominations. Bush fought for the “surge” strategy in Iraq, but the cost was a crippled presidency that had no political capital on many foreign-policy fronts: status quo diplomacy in North Korea, a weak response to Putin’s invasion of Georgia, the inability to push for a long-term Status of Forces Agreement in Iraq. To the extent Bush was constrained, it left him unable to pursue the interests of the United States abroad.
Bill Clinton: House & Senate (1994): What did Republicans accomplish by winning Congress in a landslide two years into Clinton’s term? Ideologically, quite a lot. Clinton’s liberal agenda on taxes, health care, energy, and guns was dead in the water, and Republicans got Clinton to sign both conservative bills (capital-gains tax cuts, welfare reform, Defense of Marriage Act) and big, bipartisan centrist bills and spending initiatives (on immigration, crime, telecommunications).
But was Bill Clinton constrained on ethical issues? Congress couldn’t stop him from diddling interns, abusing the pardon power, or shaking down foreigners for campaign cash. Did the rebuke of Clinton-supporting legislators weaken his position within his party? Did Bill Clinton have less influence within the Democratic party in 1995–2001 than in 1993–95? Quite the contrary! As with Obama after 2010, the Democratic base rallied around him because he was the only one left.
Ronald Reagan: Senate (1986): Reagan lost control of the Senate in 1986, due to Democrats’ filling an inside straight in close Senate races. The change in control didn’t have a major effect on investigations (the House was already ready to probe Iran-Contra), but it ended up having a massive effect on the future of the Supreme Court, as Senate Democrats used their majority to reject conservative Robert Bork and wear down President Reagan until he compromised with the moderate Anthony Kennedy, author of many milestone social-liberal opinions.
In short: Anti-Trump conservatives don’t want a check on conservative legislation, but a check on Trump’s freelancing on matters of executive power, rhetoric, and ethics. The recent history of divided government suggests that electing Democrats would do a lot to check conservative policy and conservative judges, but not very much to check Trumpism.
Empowering the Trumpists
The next problem with Will’s analysis is that he completely misreads how a wipeout for congressional Republicans would affect the internal dynamics of the party. It won’t lead to Trump’s hold on Republicans being weaker — like Obama in 2012 and Clinton in 1996, he’ll be the only game in town.
Just look at the map. The Republican party has a bewildering array of factions and ideologies and overlap among the two, although typically the divisions are not as obvious as they have been since 2010, and particularly since 2015. You have your pure Establishment Republicans such as McConnell, your “Reformicon”/Kemp types such as Paul Ryan and Marco Rubio, your tea-party conservative types such as Ted Cruz and the House Freedom Caucus, your moderate and liberal Republicans such as John Kasich, and of course the true-believing Trump enthusiasts.
If you look at who the most vulnerable Republican House and Senate members are, you’ll quickly notice that they are dominated by the McConnell, Kasich, and Ryan/Rubio factions, and to some extent the Cruz-style ideological conservatives. Far fewer of the real Trumpist Republicans are really on the chopping block. Wipe out the other factions, the way the Blue Dog Democrats were decimated in 2010, and the Trump faction is suddenly ascendant within the party.
Wouldn’t they be chastened by defeat for the party as a whole? If you’ve followed this element of the party at all, you know the answer. Trump ran behind down-ticket Republicans across the country in 2016, and in places like Wisconsin, he actually got fewer votes than Mitt Romney had — yet his devoted fans retain an unshakeable conviction that only he could have beaten Hillary. Make no mistake: The Steve Bannons of the world are ready with their preferred narrative for losses in 2018. They will argue that Paul Ryan led Republicans to defeat due to too much timidity, too much politeness, too much playing by the rules. They will argue that only Trump on the ballot can rally his base. They will press for “Let Trump Be Trump.” And their supporters will buy it all.
Both Obama and Clinton drew their parties closer to them with every confrontation with Congress. That was never truer than when Clinton faced impeachment, which is why Obama and his team spent much of 2014 trying to convince Democratic voters and donors that he was about to be impeached by Republicans. If you think Trump won’t follow the path of confrontation and escalation to pursue the same effect, you haven’t watched him for very long.
Trump in the White House has had to balance his natural instinct for provocation with the need to be something like a team player with Ryan, McConnell, and other Republicans. That has produced a variety of checks on his behavior, which are no less real for being implicit and backstage. The Trump campaign, unlike the Trump administration, would probably not have backed down so quickly and ignominiously from the family-separation fight. If Trump no longer has meaningful, powerful political allies to consider on Capitol Hill, look out.
The Third and Fourth Branches
Underlying Will’s argument is a hugely unrealistic assumption: that the great separation-of-powers issues of the day are solely between Congress and the president. But this has not been true for quite some time, and indeed it is questionable how much power either branch has left these days.
Will’s only mention of the judiciary is the dismissive closing line, “to those who say, ‘But the judges, the judges!’ the answer is: Article III institutions are not more important than those of Articles I and II combined.” But the reality in the 21st century is that Congress and the president have only as many powers as the courts will allow them — and no weapons at all to retaliate if those powers are taken away. One need only look at how Trump has been tied down by nationwide injunctions from the country’s bluest precincts, like Gulliver in Lilliput, to be reminded of this. And the courts have all too often been just as dismissive of acts of Congress, in cases such as United States v. Windsor and Boumediene v. Bush.
The courts have all too often been just as dismissive of acts of Congress, in cases such as United States v. Windsor and Boumediene v. Bush.
Judicial appointments are the sole remaining way for the elected branches to fight back — and there is no doubt that giving control of the Senate to Democrats would strip the one power that Trump has mostly exercised responsibly, the power to appoint judges who respect the rule of law and a government of enumerated and separated powers.
Then there is the administrative state, which has grown like Topsy in recent years, and which has erupted in a multifaceted rebellion against Trump. Professional civil servants, like every other class of Trump critics, have their share of reasonable complaints about Trump, but they also need to be reminded that the executive branch is supposed to be run by the man elected by the people to control its powers under Article II. Democrats have cheered on the so-called Deep State resistance and would only encourage it.
Reining in the bureaucracy is one area where the Republican Congress has been on the same wavelength as Trump, in a good way. One of the busiest areas of the Ryan/McConnell legislative agenda has been passing bills under the Congressional Review Act, which allows Congress to repeal overreaching executive and administrative regulations. This was a longstanding conservative pet project going back to Newt Gingrich’s tenure as speaker, but only unified control of government has allowed it to actually be put to use against Obama-era regulations, since you need a veto-proof majority to pass CRA bills against regulations that the president actually supports.
Conclusion: Cutting Off Conservatism’s Nose to Spite Its Face
George Will’s diagnosis of failures in Washington is always worth reading, but he has long had an idiosyncratic view of where voters should draw the lines between principle and practicality. In the fall of 2008, for example, he spent most of his energy attacking the McCain-Palin ticket rather than Barack Obama and Joe Biden. His criticisms may not have been entirely misguided, but the sense of proportion compared to the threat posed by Obama was out of whack.
For conservatives who don’t like Trump — the Never Trump Republicans who didn’t vote for him in the 2016 general election, and the Reluctant Trump Republicans who opposed him in the primary but held their noses in November — it would be ideal to replace Trump with Mike Pence or, really, any other Republican, but that is not the choice on the ballot this fall. Most of what the Republican Congress has actually done under Trump — legislation, judges — has been conventional conservative policy. Will is asking conservatives to give that up, surrender the consolation prizes for being stuck with Trump. In exchange, he is offering nothing: just yet another promise that more time in the wilderness will cure everything while the Democrats take the wheel. After watching the Trump phenomenon, or the descent of the Virginia Republicans into the madness of nominating Corey Stewart after multiple years of reasonably competitive defeats, it is hard to think of a less realistic cure. To the contrary, if you want to build a case for getting rid of Trump in 2020, you should want a strong party apparatus of un-Trump-like Republicans to reassure voters that the party and its causes will endure.
The idea that this is just a temporary prescription is especially unrealistic with regard to the Senate. Senators elected in 2018 won’t be back up for reelection until 2024. And because Democrats have a far higher share of senators in the 2018 class than the 2020 or 2022 classes, a majority built in 2018 will be exceptionally hard to dislodge for the next six years. This is a recipe for the kinds of wilderness congressional Republicans faced from 1954 to 1980.
If Will wants to clean out the Republican caucus and start with a bunch of fresh faces, he’s in luck: That will happen anyway. Retirements are at a recent-historical high, led by Ryan himself, who at age 48 might have been expected to head the Republican House for many years. And some of this year’s Republican candidates, such as Stewart, are indeed undeserving of a vote.
But at the end of the day, divided government will give us less conservative policy and more liberal policy. It will not give us less of the things that many conservatives dislike about Trump, and it may give us more of them. That’s a bad deal.