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Where the action really is: control of the Senate, and the Supreme Court

Reuters/Gary Cameron

The big-money political actions committees (PACs) on both sides are shifting their spending away from the presidential race and toward contests for “the world’s greatest deliberative body” for good reason.

Barring a game-changing “black swan” event or unimaginable revelation from the Kremlin via WikiLeaks, the presidential race is being called as over three weeks out.

Not only does Hillary Clinton lead in most national polls by margins of around 10%, but the state polls (which typically lag behind by a week or so) have begun to shift her way as well. Traditionally conservative states like Arizona, Georgia, Alaska, and even the big enchilada of Texas now poll as toss-ups or even show Clinton slightly ahead.

And it is no longer valid to say that polls three weeks ahead of election day are meaningless because, in many critical states like Florida and North Carolina, early voting is already underway.

No matter what happens in the future, many votes are being cast at a time when polls show Clinton pulling ahead into a major victory. With the tilt of the playing field, attention has shifted to Congress, where Democrats have the opportunity to reverse the gains Republicans made during the Tea Party election of 2010.

The House of Representatives was thought to be out of play because it is so affected by partisan redistricting as to require a seven-plus-point swing to Democrats for them to net the more than 30 seats required to recapture the chamber. That now looks like a possibility, and million-dollar Democratic investments are now pouring into key races. If the Clinton margins hold up it will be worth examining the fate of the House.

But most of the money and attention is on the Senate, currently controlled by Republicans with a 54-vote majority. If Clinton wins and a Vice-President Tim Kaine serves as the tiebreaking vote (as Dick Cheney did during the first half of 2001), then Democrats need only net a gain of four seats to retake the chamber.

The Senate, which has two members representing each state, has staggered elections so that only one-third of senators are up every two years. This cycle’s Senate seats were last contested in 2010, when an anti-Obama wave saw Republicans net seven seats (counting a special election earlier that year). There are therefore a number of now-contested in Democratic-leaning and swing states that Republicans picked up during the wave.

Because Democrats lost several seats in 2010 (and also lost several the previous cycle in 2004) there aren’t many targets left for Republicans to try to knock off. The only real opportunity has been in Nevada, where Senate Minority Leader Harry Reid is retiring and Republican Congressman Joe Heck has had a slim lead in polls. But Heck has criticised Donald Trump’s behaviour and been booed at Republican rallies, so his numbers have slipped and former Nevada attorney-general Catherine Cortez Masto has pulled ahead.

If the trend in Nevada continues, Democrats will be entirely on offence on election day. Polls have shown them leading in Illinois and Wisconsin all year, consistently in Pennsylvania and Indiana recently, and in a dead heat in North Carolina and New Hampshire. In Florida, polls show failed presidential candidate Marco Rubio down to a two-point lead in his re-election battle.

And in Republican-leaning Missouri, Democratic Secretary of State Jason Kander has pulled ahead in recent polls with what has been characterised as the best political ad of the year – in which the Army veteran responds to charges that he’s soft on gun rights by assembling an assault rifle blindfolded while reiterating his support for background checks, and saying that he would like to see incumbent Republican Senator Roy Blunt do the same.

Clinton-supporting PAC Priorities USA has decided to divert money to spending on some of these Senate races, signalling that the candidate is now focused on winning a governing majority in at least the upper chamber next Congress.

Rather than “mission creep”, this is critical early work for any Clinton re-election campaign in 2020. Both her husband and Barack Obama suffered the loss of their political capital early in the first terms even though their party controlled both houses of Congress because of obstructionism in the Senate.

To avoid this fate, Clinton needs a Senate full of new Democrats grateful for her electoral coat-tails.

The prime obstacle presidents Clinton and Obama faced was a Senate procedural rule that calls for a 3/5 supermajority to end debate and proceed to a vote on legislation (cloture). This rule is not in the Constitution – it is simply an operating procedure that evolved in the gentleman’s club that the Senate has traditionally been.

Given today’s extreme partisanship, a rule obliging stating that there cannot be a vote on a bill if 41 senators say they need more time to consider the matter (usually indefinitely) might be considered quaint. Usually a “filibuster” of senators talking in marathon sessions to prevent a vote is not even required. And studies have shown Republican senators voting down cloture motions during the Obama years at historic rates.

A new crop of Democrats might be willing to follow the advice of activists and scrap the supermajority requirement. All that is necessary is to include this provision during the vote on the organising rules during the opening session on the first day of the Senate term (which would be by majority vote).

In 2013, Democrats already took a step toward this end by exercising the so-called “nuclear option” that eliminated the 3/5 requirement for cloture for many judicial and executive branch appointments. Very quickly, Obama went from having far fewer Federal judges appointed than his predecessor to a greater total.

The rule change did not apply to the Supreme Court, but given the deadlock over Republican refusal to schedule hearings or votes on Obama’s nominee for a seat that has been vacant for nearly a year, there will certainly be pressure to consider this change.

Some conservative activists who dislike Trump still plan to vote for him because they cannot stomach the prospect of Clinton making lifetime appointments to the Supreme Court, which is currently divided 4-4 between progressives and the conservatives who have controlled it for a generation. If Obama or Clinton fill the currently empty seat the balance will tip to progressives will into the 21st century.

That’s why, despite the spectacle of the presidential race, the real drama at this point is in the battle for control of the Senate and who will vote for the Supreme Court and whether they will have the filibuster. A half-dozen Senate races will determine the answers to these questions. They will be the epicentre of the action over the remaining three weeks of the campaign.

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