Monday, November 21, 2016

Republican unified government and the Constitution

If you were surprised by the results of the United States elections, you are not alone. The unexpected election of Republican candidate Donald Trump to the Presidency, and the somewhat less surprising retention of both houses of Congress by the party, could give the Republican Party great control over the agenda in Washington for at least the next two years.

The current count gives Mr Trump 290 electoral votes to 223 for Democrat Hillary Clinton, with Michigan yet to be declared (Mr Trump has a narrow lead). This margin of victory in the College is comfortable enough that one or two 'faithless electors' (members of the Electoral College who do not vote with the candidate they were affiliated with on the ballot paper) could not deny Mr Trump victory. This is despite Mrs Clinton being likely to receive the most votes nationwide.

In the Senate, the Republican Party held marginal seats in Wisconsin, Indiana, Florida, Pennsylvania and North Carolina. The Democrats picked up Illinois and New Hampshire, but this was not enough to defeat the 54-44-2 (independents caucusing with Democrats) majority the Republicans held going in to the election.

Louisiana's Senate seat is yet to be decided; this state holds an election in which all candidates from all parties participate on Election Day; if no candidate secures a majority, a runoff will take place on December 10. This runoff will be between Republican John Kennedy, who won 25% of the vote in the first round, and Democrat Foster Campbell, who won 17%. In total, Republican candidates won 61% of the vote, so it looks likely that Mr Kennedy will win the seat, and the Republican majority will be 52-46-2.

In the House of Representatives, the Republicans appear to have lost seats, going from 247 to a current estimate of 239. Nonetheless, this is still a fairly comfortable majority. It is unclear how many votes the Republicans will end up winning; their House majority in 2012 of was off 47% of the vote compared to 48.4% for the Democrats; the politicised nature of drawing districts for House seats in the United States, combined with strong Republican control over state governments, means that congressional districts in several states have been drawn to apparently favour the Republican Party.

With such an apparently strong position, the Grand Old Party has defied expectations of doom. And now, some have expressed their concern that the Republican Party's strong hold over state legislatures could allow them to amend the Constitution.

How is the United States Constitution amended?

The United States has been noted for having a rigid, hard-to-amend Constitution. The most common method of amendment is approval by two-thirds of both houses of Congress, followed by ratification by 75% of state legislatures.

In this sense, Mr Chu and those expressing similar concerns are correct. Only thirteen state legislatures are controlled by Democrats. Thirty-eight states are needed for ratification (since 75%*50=37.5, and 37 is less than this), and thirteen legislatures failing to ratify would indeed be the minimum required to block legislation. However, most states have bicameral legislatures, and one house would be sufficient to block ratification of an amendment. In this case, the Democrat position looks more secure. Democrats control one chamber in a further three states, meaning that an amendment on purely partisan lines would be somewhat more difficult than simply overturning the one most marginal Democratic legislature.

However, before the amendment process gets to the point of ratification by the States, approval by Congress is required. This would be the point where the content of an amendment would become somewhat relevant.

What sort of amendment would the Republicans wish to pass?

There are a number of amendments that senior members of the Republican Party, as well as Mr Trump, have either suggested their support for or implied their support for. Nonetheless, it is important to note at this point that unlike in Westminster countries, United States political parties are not nearly as internally disciplined. In most cases, registration and identification as a Republican or Democrat is done on voter registration forms, and there is relatively little control by party organisations over who is nominated. This means that there are substantial ideological differences between members of political parties. Various organisations compile 'ideology scores' that show these differences; as can be seen here.

One briefly popular idea for an amendment was the 'Federal Marriage Amendment', which would have required that all marriages in the United States be between a man and a woman. At the time when this amendment was most popular, several states had introduced same-sex marriage, and socially conservative federal Republicans were opposed to this. In the time since then, however, same-sex marriage has been legalised for the entire United States in the Obergefell v. Hodges case, and same-sex marriage has also earned public approval. The President-Elect, too, has expressed disinterest in the issue, describing it as "settled".

Another proposal, though much more on the fringe, is a constitutional amendment to ban abortion. This proposal has not been substantially discussed, but has occasionally been introduced into Congress as a means to overrule the decision of the Supreme Court in Roe v. Wade in 1974 that the United States Constitution protects abortion rights regardless of federal or state law. Nonetheless, such a proposal would be difficult to pass compared to the easier option of appointing judges to the Supreme Court that would rule in favour of abortion restrictions (approval of a judge requires only a majority in the Senate, compared to the sixty-six votes needed for an amendment). The President-Elect has declared himself in favour of this course of action.

A proposal supported less by the Republican Party than by Mr Trump is the idea that libel laws in the United States should be "opened up". Constitutional amendment could be required to achieve this aim, but other members of the Republican Party do not appear to have expressed views on the subject, implying that it is a pet project of Mr Trump's. This would make it very difficult indeed to amend the Constitution, given the non-existent institutional role the President is given in the amendment process.

Partisan ability to amend

Ignoring the actual content of any amendment, what would it take, however, for Republicans to win enough seats in Congress to theoretically amend the Constitution? In the Senate, Republicans would need to gain fourteen seats; in the House, fifty-one.

It has been noted before that in the Senate, the Democrats face a difficult map. Two United States Senators are elected from each state for six-year terms, with staggered terms meaning that a different group of States vote for Senators every two years. Below is a table showing the different Senators that will be up at the 2018 midterm elections for Congress.

As you can see, more than half of the Democratic caucus will be up for election in 2018. This is because 2012, when these Senators were last up for election, was a successful year for the Democrats, as Senators from the same party as the victorious presidential candidate (that year, Democrat Barack Obama) generally do well. Ten Democrats (assuming Mr Trump's narrow lead in Michigan survives) will be up for election in states Mr Trump won; only one Republican is in a similar position.

Nonetheless, a fourteen-seat gain would be a tough ask for the Republicans. That would involve unseating every single Democrat in a state Mr Trump won, as well as four from states won by Mrs Clinton (most of whom are relatively safe) and holding all of their incumbents. Democrats in red states, like Senators Manchin and Heitkamp, also tend to use the internal ideological flexibility given to them allows them to express views more attuned to the views of their states (both are considered to be on the right-wing of their party, which is reflected by the aforementioned ideology scores); Mrs Clinton had to appeal to more mainstream Democratic voters.

In the House, current counting has the fifty-first most marginal seat (assuming a uniform swing, the most Democratic district the Republicans would need to win) as Massachusetts' 9th district, won by Democrat Bill Keating with 56% of the vote with 34% for his Republican opponent. House members are elected for two-year terms, and will all be up for election in 2018. Now, this way of measuring the likelihood of such an upset has its flaws; it does not take into account potential changes in districts, and assumes a uniform anti-Democratic swing, which given internal ideological diversity would probably not happen. But it nonetheless represents the difficulty inherent for such a swing.

All this would be presumably expected to happen in a midterm election. Midterms are generally bad for the party holding the Presidency, since voters may view it as a way to punish or restrain an existing President without throwing them out of office.

Now, clearly, the Republicans could hold on to their unified government at the 2020 presidential and general election. However, more Republicans in the Senate need to be defended at this election, based on a stronger Republican result in 2014. The best prospect for large gains for the Republicans remains the 2018 midterms.


The 2016 election unexpectedly resulted in unified government for the Republican Party, under a controversial and radical leader. A Democratic weakness in the states that developed under Barack Obama's presidency has led some to conclude that this result can not only allow the Republicans to make their preferred legislation, but to amend the Constitution. Nonetheless, these claims are somewhat exaggerated, even at the state level. The likelihood of an amendment passing would depend on its content, but assuming complete Republican unity on such an amendment, the party would need to gain an unfeasible number of seats in order to make changes.

1 comment:

  1. Other amendments favoured by Republicans in recent years include 'balanced budget' clauses, Congressional term limits, and abolition of birthright ('ius soli') citizenship. - JD


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