Shade your eyes. This next Congress could get ugly. (Photo by Mark Wilson/Getty Images)

If, as widely predicted, the GOP captures the Senate in today’s elections, what difference will it make for Congress’s legislative performance in the coming two years? Gerald Seib argues that legislative agreements will become more likely since, “When power is evenly split in Washington, both parties have to temper their policies.” Jonathan Chait suggests that “the race to control the Senate is not about … passing legislation of any kind. … It is possible, though highly unlikely, that some bills will pass in the next Congress.”

How likely are such outcomes? Based on past patterns of party control and legislative performance, both of these predictions are likely wide of the mark. Still, as I explore below, it is worth probing past patterns and considering whether “this time” might be different in any notable ways.

First, there is little reason to believe that the coming Congress will be markedly more productive than recent Congresses. Using a measure from Stalemate that taps the frequency of legislative deadlock on the more salient issues of the day, the figure below compares legislative performance by party control over the postwar period. Periods of divided governments are on average more deadlocked than periods of unified control (although not measurably so of late).

Party control has mattered less over the past decade in shaping the frequency of deadlock as congressional politics has become more partisan and more ideologically charged. Still, only twice over the last quarter century has a divided Washington proven more productive than the most recent bout of unified control in 2009-10. In short, there’s little reason to expect, as Seib suggests, that the two parties will regularly put aside their differences to legislate together in the coming two years.


Second, I suspect that predictions that a GOP Senate will completely refuse to seek common ground with Democrats overestimate Republican incentives to shut down the legislative process. Even in the most recently completed Congress (2011-12), Congress and the president reached agreement on roughly a quarter of salient issues. That’s hardly a record to trumpet, but it does suggest that both parties retain some incentive to come to the bargaining table.

On most issues, Republicans and their party leaders are unlikely to pay a cost for refusing to negotiate. But given the need to defend Republican seats in blue states in 2016, I wouldn’t be surprised to see Republicans meet at the table over small but electorally useful issues, say on student loans or a small increase in the minimum wage.

Third, is it possible that the presidential election in 2016 will nudge the GOP to become a more constructive opposition? After four years of deadlock, will House and Senate Republicans feel compelled to show voters that they can govern? (And if compelled, will they be capable of getting senators from Susan Collins to Ted Cruz to sing from the same song sheet?) As the chart above suggests, divided governments in the run-up to a presidential election are typically more deadlocked than unified governments — but not especially so. Sometimes an approaching election raises the costs to the opposition party for refusing to negotiate over policy.

The push to legislate in 1996 after the GOP was blamed for government shutdowns that previous winter is a case in point. But other times, approaching presidential elections simply encourage the parties to bring issues, not laws, to the voters — as happened most recently in 2012. In the coming Congress, it seems doubtful that ideologically charged parties in a highly competitive electoral environment will want to share credit for big-ticket items or to share blame for unpopular legislative moves in the run-up to a contested presidential campaign.

The Fix's Chris Cillizza breaks down how close the battle for the Senate really is. (The Washington Post)

Fourth, predictions abound that “a Republican Senate would shut the door on confirmations.” The prospects of complete deadlock on executive and judicial nominations bear more careful consideration (for starters, see @Mansfield2016 here). But for now, consider again past patterns. Over the postwar period, confirmation rates for periods of unified control outpaced rates for divided control 87 to 79 percent — both high rates. Granted, a more apt analogy might be the past decade or so (before the nuclear option): 57 percent of appellate court nominees were confirmed during unified control, just 46 percent during divided governments.

My point is that even in recent periods of divided control, the opposition party has been willing to confirm roughly half of a president’s appointees to the bench — not least because such nominees are often favored candidates of opposition party senators. (And as I noted here, even after Democrats banned judicial and executive filibusters, Republican senators voted to confirm most judges even after opposing them on cloture.) This fall, for example, Obama nominated a Utah judge to a federal district court bench with the glowing support of Republican Sen. Orrin Hatch of Utah.

Perhaps a Republican Senate will leave advice and consent in tatters, seeing little gain to filling seats better left open for a Republican president. Still, I wouldn’t be surprised to see Republicans leverage their majority power to continue to secure lifetime spots on the bench for judicial candidates well known back home.

Ultimately, most predictions about how Republicans will behave if they capture control of the Senate assume that Republicans’ disciplined opposition in the minority will continue to guide their party in the majority. But it’s easier to rally behind a leader when the job is solely to oppose.

When today’s electoral outcomes become clear, we should keep an eye both on Senate Republicans’ willingness to legislate, but also their capacity to do so. As Dick Fenno said of House Republicans in 1995, learning to govern can be hard for a party not used to responsibly exercising power.