After absorbing a lot of Democratic gloom-and-doom about the midterms, I offered some silver lining at New York:

The 2022 midterms don’t look great for Democrats, who will try to buck history by hanging on to super-slim congressional majorities. Thanks to the particular lay of the land, Democrats have a decent chance of maintaining control of the Senate. But the House? Not so much: The two times since the New Deal when the president’s party won net House seats in a midterm (1998 and 2002), the president in question had sky-high job-approval ratings. Even if you believe Joe Biden’s plunge in popularity has been stemmed or even turned around a bit, he’s not going to have 60 percent-plus approval in November 2022 unless really crazy things happen. There’s just too much partisan polarization for that these days.

Thankfully for Democrats, even if they lose their congressional majorities next year, Biden himself won’t be an underdog for reelection in 2024. After all, the last two Democratic presidents were reelected after historically terrible midterms. Democrats lost 54 U.S. House seats in 1994 and 63 in 2010. Yes, they had bigger majorities going into those elections than Democrats have now. But they lost the national House popular vote by an identical 6.8 percent in both midterms, which is pretty bad, particularly since Democrats suffer from a voter-inefficiency problem in House elections (too many voters concentrated in too few districts).

It’s possible for a president’s party to lose a midterm so badly that bouncing back in the next cycle is all but impossible. Consider the man whose unique comeback accomplishment Donald Trump will be emulating if he runs in 2024, Grover Cleveland. The president Cleveland defeated in an 1892 rematch, Benjamin Harrison, was a Republican whose party lost an incredible 93 House seats in the 1890 midterms. This, mind you, was at a time when the House had only 332 members, which means the GOP lost over half their caucus in one cycle (an even worse percentage than in 1894, when Democrats lost a record 125 House seats during the midterm after Cleveland’s comeback triumph). In this era of polarization, nothing like that is going to happen to Democrats in 2022.

Looking more broadly at the power of incumbency, there have been 13 sitting presidents since World War II who were on the general election ballot. Nine of them won. The four losers all faced special circumstances. Gerald Ford had not previously been elected to anything more than the U.S. House; he ascended to the vice-presidency and then the presidency when disgraced predecessors resigned, and he pardoned the president who appointed him, the especially disgraced Richard Nixon. Jimmy Carter was caught up in a historical realignment that he had held off four years earlier by carrying his native South, which then resumed a massive Republican trend. George H.W. Bush suffered from a terrible economy but then also a party split (third-party candidate Ross Perot won a lot of previously Republican voters). And we all know about Donald J. Trump, who was impeached twice and seemed determined to offend swing voters.

In retrospect, what’s most remarkable is that Ford and Trump very nearly got reelected despite their handicaps, exhibiting not the weakness but the strength of incumbency. And it’s with that perspective that any early handicapping of a potential 2024 rematch should be considered. Trump benefited from incumbency in 2020, as will Biden in 2024. So the idea that the 45th president has some built-in advantage over the 46th — absent the renewed election coup so many of us fear — doesn’t make a lot of sense.

 

Listening to the back-and-forth among Democrats on what to include in a shrunken Build Back Better package, I offered a way out of the dilemma at New York:

It’s clear the price tag of the Build Back Better budget-reconciliation bill will have to come down from $3.5 trillion to the roughly $1.5 to $2 trillion their senatorial majesties Joe Manchin and Kyrsten Sinema will allow. The two ways to pare the package are pretty obvious: enact a few big things in their original glory and drop others, or enact the whole enchilada in some sort of bargain-basement form. The latter approach typically involves either means-testing to reduce the number of beneficiaries, which progressives and those who poll likely voters stoutly oppose, or providing shorter-term benefits and daring Republicans to kill them if they can, which some progressives and polling mavens do like.

My colleague Eric Levitz recently weighed these options and came down emphatically in favor of the few-things-done-well approach (or, as his headline put it, “against temporary half-assed reforms”). More important, it’s the strong preference of House Speaker Nancy Pelosi, as she wrote to her caucus over the weekend:

“Overwhelmingly, the guidance I am receiving from Members is to do fewer things well so that we can still have a transformative impact on families in the workplace and responsibly address the climate crisis: a Build Back Better agenda for jobs and the planet For The Children!”

Aside from imposing that approach on unhappy progressives favoring a broader if less permanent agenda and on “centrists” who want means-testing or other limitations on the “transformative” items remaining, there’s the question of choosing what’s in and what’s out. It won’t be easy to achieve consensus, and any resolution will leave significant elements of the Democratic coalition unhappy.

But a lot of the angst involved in this set of decisions depends on a bit of dogma that really needs to be reexamined: Congress cannot do anything important in an election year.

Yes, it’s true that members of Congress up for reelection in any given cycle, as well as their Senate colleagues whose majority status is at risk, are less likely to favor perilous votes in an election year — particularly for the party controlling the White House in a midterm election where they are likely to lose ground in any event. But how about votes on genuinely popular initiatives that may actually improve the reelection odds of incumbents supporting them while giving that party’s challengers a strong and united message?

This could be one way out of the current Democratic dilemma: Remove from the FY 2022 budget-reconciliation package and reserve for a FY 2023 follow-on measure — to be debated and enacted in 2022 — some tasty, poll-tested initiatives that aren’t central to any short-term economic-stimulus strategy. A very good candidate for this treatment is the expansion of Medicare to include dental, vision, and hearing benefits. It’s very popular (a June 2021 Kaiser Family Foundation survey found 90 percent of respondents called it a “top” or “important” priority for Congress). It’s also pretty expensive (the enhancement was “scored” by the Congressional Budget Office as costing $358 billion in 2019).

Delaying, rather than dropping, the initiative could reduce the price tag of the Build Back Batter package significantly without infuriating its progressive proponents (such as Senate Budget Committee chairman Bernie Sanders). The delay may also accommodate dubious but strongly expressed centrist fears that too big a spending package right now could escalate inflation and/or make Democrats look fiscally irresponsible.

A shift from 2021 to 2022 for the most popular spending initiatives may be even more effective if matched with the most popular revenue-raising measures to pay for them, which might include higher taxes on the very wealthy or Medicare drug-price-negotiating authority.

For this gambit to work, of course, Democratic leaders would need to be resolute about their willingness to move another big reconciliation bill in 2022. The centrists who forced down the size and shape of the Build Back Better package would also need to be open to it. They should be since they say they’re just hesitant to commit to more spending before we know the future direction of the economy.

As for the impact on Democratic prospects in the midterms, it’s hard to see how a united party advancing a clear, highly popular agenda just as voters begin to focus on their 2022 preferences (presumably late next summer or even in the early fall) could fail to benefit. The Democratic base would be gratified by a promise delayed yet still fulfilled, while persuadable swing voters are precisely those boosting the poll numbers of the most popular initiatives like the Medicare expansion. If you’re like me and figure that Democrats will probably lose the House next year no matter what they do and that they need to accomplish all they can before 2023, splitting the original Build Back Better wish list into sequential pieces of legislation makes perfect sense.

So it’s possible for Democrats to have their cake and eat it, too, while remaining unified. The first step is to stop assuming their ability to legislate ends with 2021.

After months of reading and writing about Democratic congressional battles over infrastructure and reconciliation, I offered a bit of a historical corrective at New York:

If you follow the buzz in Washington, you would think there are massive divisions in the Democratic Party between “progressives” and “centrists” that threaten to blow up Joe Biden’s agenda. The “centrists” in particular have been troublesome by insisting on the shrinkage of said agenda, both quantitatively (various demands to reduce the price tag on the Build Back Better budget-reconciliation package) and qualitatively (complaints about too much climate-change activism or too many new entitlements or too little means-testing or too many taxes).

But lost in all the bickering and hostage taking is the fact that Democrats in Congress are almost certainly more united than they’ve ever been. And there are a lot more “centrists” working quietly in harness with party leaders and progressives than are out there making demands at press conferences.

There are two major groupings of Democratic centrists (or “moderates,” a term used almost interchangeably) in the U.S. House: the Blue Dog Coalition and the New Democrat Coalition. The Blue Dogs have eternally made “fiscal discipline” a signature issue for their membership and have in the past been more than willing to stand up to party leaders. Of the nine “rebels” led by Josh Gottheimer who insisted on a vote on the bipartisan infrastructure bill before they would countenance a reconciliation bill in the big blowup in September, eight were Blue Dogs (plus, Blue Dog co-chair Stephanie Graham made some sympathetic noises). But ten Blue Dogs stayed out of the rebellion.

The minority status of the rebels becomes even clearer if you look at the New Democrat Coalition, a newer group that was once considered close to the now-defunct Democratic Leadership Council (the famously controversial organization that coined the “New Democrat” brand). There are 95 NDC members in the House. Nine of them (ten if you count Murphy) were among Gottheimer’s rebels. Fully 85, including all the group’s leadership, were not.

In the Senate, every member is a caucus, so you don’t tend to have factional groups. Joe Manchin and Kyrsten Sinema have been the hostage takers and naysayers among “centrist” Democrats. But think about all the other “centrists” who haven’t been issuing demands or kicking and screaming about the Build Back Better package. I would count a lot of Senate Democrats as conspicuously moderate over the years: Michael Bennet, Tom Carper, Chris Coons, Dianne Feinstein, Maggie Hassan, Jeanne Shaheen, John Hickenlooper, Tim Kaine, Mark Kelly, Amy Klobuchar, Jon Tester, and Mark Warner. Maybe some of them sympathize with Manchin and Sinema on this or that issue. But they aren’t out there disrupting Democratic unity, are they?

In fact, if you look back at legislative challenges faced by recent Democratic presidents, the relative loyalty of today’s brand of “centrists,” becomes plainer. In 1993, Bill Clinton, himself a stalwart of the DLC who would drive some progressives batty, pushed a budget-reconciliation bill through Congress that had already been significantly pared of progressive provisions before it was introduced. In the end, though, Clinton lost 41 House Democrats and six Senate Democrats (nearly all of them conspicuous moderates or conservatives) who joined Republicans in voting against the legislation.

In 2009, Barack Obama had to deal with well-organized centrist Democrats in both chambers to get his budget enacted; the complex structure of Obamacare was one legacy of the compromises he had to accept after Joe Lieberman, among others, killed the “public option” before it was even incorporated into legislation. Fifteen Senate Democrats worked together to reduce the overall cost of the budget. In the end, 20 House Democrats voted against the package despite a host of accommodations.

The bigger picture is that in recent decades, ideological polarization has consolidated left-of-center voters and pols in the Democratic Party while right-of-center voters and pols have gone Republican. And partisan polarization has greatly reduced the number of ticket splitters. Both forces tend to enhance party unity in Congress. In 2008, despite Obama’s big national victory, 48 Democrats were elected in House districts carried by John McCain. In 2021, there are only seven House Democrats representing districts Trump won last year and only three from districts Trump carried by more than two points. The real outlier among House Democrats is Jared Golden of Maine, whose district went for Trump by seven points. Is it any wonder he’s one of the most vociferously adamant rebels against Biden’s budget bill? Or could anyone be surprised that Manchin isn’t “loyal to Biden” when Biden got less than 30 percent of the vote in West Virginia?

The real problem for Democrats in 2021 isn’t ideological disunity: It’s their shaky control of both chambers, which tempts individual House and Senate members to set themselves up as power brokers and posture for swing voters and wealthy and powerful interests back home.

After the 1992 elections, Clinton’s Democrats held 257 House seats and 57 Senate seats. After the 2008 election, Obama’s Democrats held 257 House seats and 59 Senate seats (which would soon become 60 when Arlen Specter changed parties). Now, Biden’s Democrats control 220 House seats and 50 Senate seats. Even a very unified party will have problems with such a small margin for error and that much incentive for factional or individual demands. And those who treat the current tensions as some sort of inherent “Democrats in Disarray” problem may be forgetting how much trouble Republicans had managing small congressional margins in 2017 and 2018. Remember the Obamacare repeal that never happened?

The cure for Democratic “disunity” isn’t expulsions or an imposed ideology; it’s to win bigger margins in Congress or to lose majorities altogether. Difficult as the status quo undoubtedly is, all Democrats would prefer the turbulent exercise of power to no power at all.

Got far down in the weeds of an obscure but important issue at New York this week:

The now-notorious Eastman memo — the script Donald Trump gave to Mike Pence for overturning the election results on January 6, 2021 — was potentially more dangerous to our nation than the rioters he incited to storm the building. The document provided a spurious, but convenient, constitutional rationale for Pence to abuse the authority granted to him in the 12th Amendment to tabulate electoral votes as part of a pro forma process for confirming Joe Biden’s election. According to Eastman, a lawyer on the president’s legal team, Pence had the lordly power to disregard state-certified electors, ignore the procedures spelled out in the “unconstitutional” Electoral Count Act, and either hand an unearned victory to his own ticket or kick the election into the House. Pence decided not to go there, though he seems to have strongly considered it.

I have feared that the attempted 2020 electoral coup may have been a dress rehearsal for Trump. But no matter what happens in the 2022 and 2024 elections, there will be one important change in the scenery when a joint session of Congress convenes to count electoral votes in January of 2025: Instead of Republican Pence, Democrat Kamala Harris will preside. As Russell Berman notes in The Atlantic, there’s a quiet debate underway as to what role she might play if Trump is the Republican nominee and tries again to steal the election:

“Should Trump or his acolytes try to subvert the 2024 election, the last Democrat with any power to stop the steal — or at least try to — would be Harris. ‘She’s certainly going to have quite a job on her hands on January 6, 2025,’ Laurence Tribe, a Harvard law professor and liberal constitutional scholar, told me. Nine months ago, Tribe and other Democrats praised Pence for interpreting his authority narrowly, but the next time around, they might ask Harris to wield the same gavel more forcefully.”

This does not mean there is significant support in liberal legal circles for some sort of reverse-Eastman memo, with Kamala Harris refusing to acknowledge electors that Trump won, relying on some outlandish constitutional argument. As Matthew Seligman of the Campaign Legal Center told me, election lawyers are unwavering on this point.

“It’s critical to be clear that the Constitution does not vest the vice-president (as president of the Senate) with any unilateral authority at all to reject electoral votes or to resolve disputes about competing slates of electors,” he said. “That theory was the basis of the Eastman memo, and it is absolutely incorrect — whether it’s Vice-President Pence, Vice-President Harris, or any other politician of any political party.”

But the Electoral Count Act (which Eastman wanted Pence to disregard) does give some powers to the vice-president, while leaving certain potential issues maddeningly unclear, with virtually no court precedents to govern the sort of scenarios that could conceivably emerge in future elections. Distinguished Harvard emeritus professor Laurence Tribe told Berman it was clear the ECA gave the vice-president the power to reject “ungrounded challenges to state certifications.”

So if, hypothetically, a Republican-controlled Congress was tempted to supplant electors certified by the appropriate officials under a given state’s laws with some self-appointed alternative slate (like the fake Trump electors Eastman wanted Pence to recognize), Harris might be able to gavel such a move out of order. But as Seligman told me, the ECA does not give the veep “freewheeling authority to pick and choose how to count electoral votes, for good reasons or for bad reasons, and it would be dangerous if it did so.”

If a 2024 Team Trump (or anyone else) gets its act together enough to organize more regularly constituted electoral vote larceny — either by an entirely legal certifying authority that chooses to ignore or distort the popular vote, or by muddying the waters with a conflicting certification by a legitimate state body such as the legislature — there may be nothing Harris can do about it short of asserting powers she doesn’t have, and which a Republican Congress could formally deny her by challenging her decisions. But here’s the thing: The operations of the ECA in such uncharted territory are murky at best, as one might expect from an 1887 statute developed under the shadow of the very different disputed presidential election of 1876.

But prospects for fixing the ECA in the near term have been stalled by the lack of interest of congressional Republicans determined to “move on” from the embarrassing events of January 6. Perhaps the realization that Kamala Harris will be in the chair in 2025 will sink in enough to make them reconsider that hands-off stance toward placing clear limits on her power — power she will be strongly encouraged to exercise to the maximum extent if she’s defending not just another Democratic victory but democracy itself. For that matter, lawmakers in both parties need to understand the ECA is going to be a problem in future elections after which we have no way of knowing who will be sitting in the vice-president’s chair when the deal goes down, or which party will control Congress.

It’s true congressional Republicans may fear the wrath of Trump should he decide an otherwise non-controversial ECA fix could tidy up the muddy track he prefers in order to keep his legal and extralegal options open for a post–Election Day reversal of fortune. But if they value the Constitution and the rule of law, they may be forced to cast a very difficult vote to stop a Trump coup in 2025. Precluding at least some of this risk by clarifying the ECA at this early juncture might be an easier vote, and they can always tell their MAGA constituents they are just reining in Kamala Harris.

Watching all the arguing and fighting among Democrats over the infrastructure and reconciliation bills, it occurred to me we should count some blessing, so I did so at New York:

September was a tough slog for the Democrats whose trifecta control of Congress and the White House has made it essential, but hardly easy, to reach internal agreement on the Biden priorities of an infrastructure and budget reconciliation bill. As of Thursday night, it is entirely possible the Build Back Better reconciliation bill will get a severe haircut thanks to the demands of centrist Democrats like Joe Manchin and Kyrsten Sinema, and that the package will be significantly less progressive than originally envisioned. Totally aside from this set of problems, Democrats are presently stymied by the Senate filibuster on other key priorities ranging from voting rights to abortion rights to a path to citizenship for immigrants.

But these frustrated and sometimes battling donkeys should stop kicking and braying long enough to count their blessings. They came very close to not having a trifecta at all. And the narrow margins Democrats have to work with now could have been less than zero.

Most obviously, Donald Trump’s efforts to illegally reverse the presidential election outcome based on the Big Lie that he won should not make us forget that a shift of just over 77,000 votes in four states (Arizona, Georgia, Nevada, and Wisconsin) would have given him a Electoral College majority, despite Biden’s large win (which would have nearly reached seven million votes even with the above-stipulated shift) in the national popular vote. You have to reach a little deeper to come up with a hypothetical Republican conquest of the House, since the GOP won eight of the closest ten House races and still fell five seats short.

It’s pretty easy, by contrast, to see how Democrats might have fallen short in the Senate long after November 3: Had the two Republican incumbents won those January 5 U.S. Senate runoffs in Georgia, as most observers initially thought they would do, then Mitch McConnell would still be Majority Leader rather than the ranking obstructionist. Indeed, the most common explanation of those pivotal Democratic victories over David Perdue and Kelly Loeffler is that Trump made the runoffs all about his grievances while continuing to undermine Republican voter confidence in the electoral system.

Democrats were fortunate as well that new senators Jon Ossoff and Raphael Warnock were solid progressive Democrats, not the sort of Blue Doggy centrists wary of the national party that Georgia and other southern states once routinely sent to Washington.

In any event, life in America would obviously be very different if Trump were still in the White House. And had Republicans hung on to control of the Senate, there would be no Democratic-designed FY 2022 budget reconciliation bill for Manchin and Sinema to undermine. In all likelihood, Congress might have still enacted a significantly pared-down version of the American Rescue Plan, but would have probably called it a day. It’s doubtful McConnell would have felt any real pressure to let a significant number of Senate Republicans back a bipartisan infrastructure bill that Donald Trump loudly opposed. And all the developments that have depressed Joe Biden’s job approval ratings in recent months would still have likely happened anyway, with no countervailing public appreciation for what he may yet accomplish with his congressional allies.

The Democratic trifecta of the 116th Congress will leave a massive or modest legacy depending on what happens between now and November of 2022 — and obviously on what happens in the 2022 midterms. But the situation could be so much less promising and so much more depressing, and Democrats, especially disappointed progressives hoping for a new New Deal, should keep that in mind.