OFF TO THE RACES

The GOP Fails To Make the Case for Its Own Success

Republicans have a struggled with their legislative priorities, but they have rolled back costly regulation and are changing the balance of the judiciary.

Supreme Court Associate Justice Neil Gorsuch speaks at the Federalist Society's 2017 National Lawyers Convention in Washington on Thursday.
AP Photo/Sait Serkan Gurbuz
Charlie Cook
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Charlie Cook
Nov. 20, 2017, 8 p.m.

One of the perks of being a political columnist is that from time to time you can step into the shoes of a campaign strategist and offer some unsolicited advice. While it is doubtful that anyone has ever taken my advice, it scratches an itch for an armchair campaign manager. In that spirit, I would suggest that, in the event that Republicans are unable to get a major tax-reform or tax-cut bill enacted into law in the coming months, that they come up with a Plan B if they fall short.

We keep hearing Republican members of Congress and their staffs saying that passage of a big tax bill is essential to retaining their congressional majorities, one even saying that it was an “existential” moment for the GOP. Should they fail, they would be 0-4 on their stated objectives for this Congress, having already failed to repeal Obamacare, approve a $1 trillion, five-year infrastructure program, and build a border wall. It would be a pretty sorry record for a party that controlled all three levers of national policy—the White House as well as majorities in the House and Senate.

Senate passage of a big tax bill, whether it is actual reform, as House Speaker Paul Ryan and many other conventional Republicans want, or just a huge tax cut, as President Trump and many of his backers are urging, is highly problematic. Keeping 50 of the 52 Republicans on board for anything, which would allow Vice President Mike Pence to break a tie, is quite a challenge even under the best of circumstances. The GOP may be one party, but it is composed of ideological factions that often have antithetical interests. There are the hard-line conservatives: Ted Cruz of Texas, Ron Johnson of Wisconsin, Mike Lee of Utah, and Rand Paul of Kentucky. There are the three moderates: Shelly Moore-Capito of West Virginia, Susan Collins of Maine, and Lisa Murkowski of Alaska. And then there are the 45 in between, many from purple swing states and more than a few from states that would be hit hard if Congress ended the deduction for state and local taxes. Talk about herding cats. Then these scratchy cats would have to reconcile their fragile bill with the delicately constructed House version.

So how can Republicans justify their occupancy of the White House and control of the two chambers of Congress if they whiff on all four of their legislative priorities? I would argue that Republicans should already be building a case that the 2016 election did matter and that they have accomplished big things.

First, they could point to the major changes in the regulatory and enforcement regime. One can agree or disagree with the merits of these changes, but it’s hard to argue that they’re not having an impact. The conservative American Action Forum, headed up by Douglas Holtz-Eakin, the highly regarded director of the Congressional Budget Office under President George W. Bush, estimates that the average regulatory burden during the last four years of the Bush administration was $41 billion, which rose to $109 billion annually during President Obama’s eight years. In August, the AAF estimated that the total rule cost during the first six months under Obama was $24.4 billion, compared to a paltry $1.2 billion under Trump. As AAF research analyst Dan Goldbeck writes, “New regulatory burdens are a fraction of those established under President Obama’s first six months; overall regulatory volume has slowed to historically low levels; and a number of notable deregulatory measures have been initiated.”

Second, the Republicans can point to the differences in federal enforcement of laws and regulation. There is a new sheriff in town, and his deputies share his aversion to red tape. Anyone who thinks that the change at the top of the Environmental Protection Agency, from Obama’s Gina McCarthy to Trump’s Scott Pruitt, isn’t a big deal in terms of enforcement, please raise your hand.

Finally, the GOP can point to a change in the direction of judicial appointments under Trump compared with Obama. Prior to the death of Justice Antonin Scalia, the Supreme Court was split between four liberals, four conservatives, and one swing vote, Anthony Kennedy. Had Obama’s choice of U.S. Circuit Court of Appeals Judge Merrick Garland filled the vacancy, the split would have been five liberals, three conservatives, and one swing vote. Trump changed the balance by picking another Circuit Court of Appeals judge, Neil Gorsuch, who is just 50. If he stays on the Court until he’s the same age as Justice Ruth Bader Ginsburg is today, he will have served 34 years by 2051.

What if another vacancy occurs while Trump is in office? The oldest current member is Ginsburg, one of the most liberal members, who is 84. The next oldest is the swing vote on many issues, Anthony Kennedy, 81. Next oldest is another liberal, Stephen Breyer, 79. You have to go back a decade to find the next two oldest justices, Clarence Thomas, 69, and Samuel Alito, 67. Both are conservatives, as is Chief Justice John Roberts, 62. If there’s another high-court vacancy and Trump appoints someone in the mold of Gorsuch, the Supreme Court could have a conservative majority for a decade or more. Then think of the vacancies to be filled over the next three years on the 13 U.S. Circuit Courts of Appeal and 94 U.S. District Courts. Like it or not, this is a very big deal.

In short, Republicans have a story to tell that would rally their supporters, but it isn’t being told now. Instead the GOP is playing roulette, putting all their chips on the tax bill.

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