Now that Donald Trump has shot himself in the foot and most polls and pundits are pointing to a Hillary Clinton victory in the presidential election, both major parties in the US are turning their attention to that other contest on November 8: the ballot for all 435 seats in the House of Representatives and 34 of the 100 seats in the Senate.
Presently, the Republican Party controls both chambers of Congress with a 58-seat majority in the House and an eight-seat majority in the Senate. With Trump failing badly, the fear amongst Republicans is that there will be a flow-on effect on Congressional voting and that their majority in both houses is at risk. They are now desperately channelling resources into congressional contests and using the argument, that in the interests of American democracy, a Clinton presidency must be balanced by a Republican-controlled Congress.
Divided government is a product of an inherently complex US Constitution. Even if Hillary Clinton wins the presidency, Republicans may still control Congress.Credit:Andrew Harrer
Although the Congressional elections have generated far less attention than the presidential election, they are just as significant. The Republicans have controlled the House for the last six years and both the House and the Senate for the last two, and that has had a profound impact on the Obama presidency.
Divided government – that is when one party wins the presidency and the other controls Congress – is not unknown in American history. During the past 50 years, Presidents Nixon, Ford, Reagan, both Bushes, and Clinton, in addition to Obama, have all had to put up with it for all or part of their presidencies. Only Presidents Kennedy, Johnson, and Carter have not had to face a Congress where one or both chambers have been in the hands of the opposing party.
Divided government is a product of an inherently complex US Constitution with its separation-of-powers fused with the doctrine of checks-and-balances and overladen by federalism. It establishes quite separate elections for the executive and legislative branches of government and, when this produces divided government, extraordinary skills of bargaining and compromise are required on both sides to make American government work.
That was what more or less happened in the past. Over two decades ago, a leading American political scientist, David Mayhew, produced a path-breaking study comparing the operation of American government under unified and divided government during the second half of the 20th century and concluded that divided government made little difference to lawmaking in America. Significant policies and laws have emerged from Congress under both circumstances and that government worked under either condition.
But that is not the case now and is unlikely to be so if divided government persists into a Hillary Clinton presidency. The Republican Party is different and has been so since the Tea Party infiltrated it in the first decade of this century.
It is now more ideologically driven than it ever has been in the past and hostile to the politics of compromise. The extremism of some Republicans in Congress has led them to holding the president and the country to ransom when they don't like what is being proposed, as they did with the debt-limit crisis in 2011. More recently it has taken to simply ignoring what comes out of the White House.
The refusal of the Republicans in the Senate to even consider President Obama's nomination of Merrick Garland to the vacancy on the Supreme Court, on the spurious grounds that it was Obama's last year in office, has no precedent. The same attitude towards Obama's policy initiatives has created a swathe of no-go issues – climate change is just one – and forced him to explore what can be achieved by unilateral executive action to by-pass Congress. And then Republicans in Congress attack him for acting unconstitutionally.
As two distinguished observers of Washington politics, Tom Mann and Norman Ornstein, argued in a recent book, the politics of extremism has collided with America's constitutional system. Congress has become the broken branch of government and Washington is dysfunctional. The book is titled It's Even Worse Than It Looks.
Should divided government prevail under a Clinton presidency, government may well deteriorate even further. Her presidency will likely be as shackled and as limited as the Obama presidency has been and the deadlock and obstructionism in American government will continue unabated.
For proof, one need look no further than Senator John McCain's outrageous statement on talk-back radio two weeks ago that the Republicans would be united in opposing any Supreme Court nomination made by Hillary Clinton during her presidency, or the recent comments from the mouth of Jason Chaffetz, the current Republican chair of the House Government Oversight Committee that Hillary Clinton is "a target-rich environment" and promising a full-term's worth of partisan and personal investigations of the new president.
The solution to this stalemate in Washington cannot be more divided government as Republican leaders are now urging on voters. Divided government no longer works because the willingness to compromise is non-existent. Ideology, extremism, polarisation and personality politics have taken over. The argument that split-ticket voting will bring balance to the system is disingenuous because the Republicans have no interest in balance. They are committed to obstruction and deadlock when there is a Democrat in the White House.
The disintegration of Donald Trump's campaign for the presidency has robbed them of the possibility of a period of unified Republican government but it has created the possibility, albeit remote, of unified Democratic government.
Although most pundits consider it unlikely that the Democrats will be able to win control of the House, the prospect of them taking back the Senate is real. That would at least provide some check on the Republicans in Congress. The alternative is a continuation of the status quo that doesn't bode well for Hillary Clinton, nor for the future of American government. American voters have more than one significant decision to make on Tuesday week.
John Hart is a Visitor in the School of History at ANU and a specialist on American politics.