Let's start with the premise that neither party will achieve a filibuster-proof 60 votes in the Senate. Nate Silver's last prediction had the Senate at 50R/49D/1I. The Democrats currently hold an effective 53 seats (including two Independents who caucus with them); they will be really lucky to hold this majority as 21 of 33 seats up for grabs this fall are theirs. Unless Mitt Romney is revealed to like live boys or dead girls, the Senate will not return to the 2009 60-vote Democratic majority. On the other hand, Republicans would need to win every closely-contested race to get to 57 votes. It's hard to imagine where they'll find three more; the GOP would have to win all the lean-Democrat seats (FL, OH, NM), the likely-Democrat seats (WA, NJ, WV, MI, CT, HI), then somehow find one more from the safe-Democrat seats (CA, PA, NY, MN, MD, DE, VT, RI). Very unlikely, barring death, retirement, or scandal; and even then, not likely.
It's therefore safe to stipulate that the Senate will be gridlocked once again. Nothing important from either party will get to the President's desk. We'll see another session like the last one: brave lawmakers reached across the aisle to name post offices and reaffirm pizza's status as a vegetable. And that's about it.
What difference does it make, then: Obama or Romney? Here are the things that the President can do, with or without Congress:
- Foreign policy. Before Harry Truman, Congress and the President took the War Powers Clause of the Constitution seriously. The country would not go to war without a Declaration of War by Congress. Faced with a recalcitrant Congress, Truman set a regrettable precedent by involving us in a "Police Action" in Korea. Since then, the U.S. hasn't declared war, but has been involved in multiple foreign adventures: Vietnam, Kuwait, Kosovo, Grenada, Iraq, Afghanistan. And maybe some that I'm forgetting. Each of these has been initiated and driven by the White House, with cover from a timid Congress in the form of non-binding resolutions. Here's a nice piece by Michael O'Hanlon detailing how a Romney foreign policy might differ from Obama's. And here's an analysis by George Friedman (via John Mauldin) on the intellectual differences between the two.
- Regulation. The President has considerable discretion to set government regulations. For example, Obama has expanded fuel economy standards to cover trucks, and set lofty new goals for passenger cars going forward. Aggressive environmental and financial regulations are liable to be casualties of a Romney administration.
- Law Enforcement. President Obama has set a dangerous precedent by choosing which laws to enforce, and which to ignore. Congress was unable to reach agreement on the Dream Act, so the president acted unilaterally and decided to stop deporting young illegal immigrants. The Democrats will live to regret this precedent, in a Romney administration and down the road.
- Supreme Court nominations. This is the big one. There's a really good chance that the next president will appoint at least one justice. Ruth Bader Ginsburg is the oldest, unhealthiest, and most liberal of The Nine. Were she to die or resign in the next four years, her replacement would be absolutely critical. Obama would appoint a replacement who would hold the liberal line and preserve the center-right orientation of the court. Romney, on the other hand, would appoint a conservative who would swing the court even further to the right, conservative to overturn Roe vs. Wade if they chose to fight that battle. For this reason, Ginsburg's replacement is likely to elicit a filibuster, no matter who our next president is.
Don't be fooled by the millions of words wasted on taxes, social security, Medicare, Medicaid, welfare, the economy, education, defense spending, gay marriage, trade, and health care reform. The Executive Branch can do little to directly affect these issues. When voting for President, this short list is the only thing you need to worry about.
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