Brent Budowsky: An epic battle for the future of Congress

As Hillary Clinton and Donald Trump conduct a brutal struggle to define the future of America, there is also an epic battle underway to define the future of Congress, which is already one of the most disapproved institutions in America.

At the presidential level, while Hillary Clinton remains a prohibitive favorite, if she wins — which is probable but not certain — the size of her margin will have huge impact on Senate and House elections. 

{mosads}In the Senate elections, I would make Democratic candidates a significant favorite to win seats in Wisconsin, Illinois and Indiana. Democratic candidates are making a strong run for GOP Senate seats in New Hampshire, Pennsylvania, North Carolina, Missouri and potentially Florida, and have a slightly better than even chance to hold the Democratic seat in Nevada.

In races for the House of Representatives, Democrats are likely to gain somewhere between 12 and 18 seats. However — and this is a huge however — if Clinton wins a wave landslide victory for president, she will carry along with her not only most of the Democratic Senate candidates in close battles but some additional House Democratic candidates who are not on the political scene today.

Presidential polls today vary widely. Some suggest a narrow Clinton victory, while others find a Clinton landslide. The final result is wildly unpredictable. It is also unlikely but possible that Trump outperforms his polls and wins a surprise victory.

The Clinton campaign is now urging donors to pour money into congressional races, which is important and wise. Clinton has a huge advantage in surrogates, with President Obama, first lady Michelle Obama, Vice President Biden, Sen. Bernie Sanders (I-Vt.), and Sen. Elizabeth Warren (D-Mass.) criss-crossing the nation on behalf of Clinton and Democratic congressional candidates.

The range of Senate election outcomes is that Democrats could begin the new Congress in January with as few as 49 Democratic senators, or as many as 54 or 55 Senate Democrats. With the final victory margin of the presidential campaign so unpredictable, it is impossible to predict the outcome of the battle for control of Congress.

There is a second epic battle underway for the future of Congress, in the Republican Party, to define the future of the GOP in Congress and nationally.

Even if Clinton wins big and Democrats enter the new Congress with 54 senators, Senate Republicans will have to decide whether to employ repeated filibusters, which would leave Democrats often short of 60 votes and turn the Senate into an institution of perpetual gridlock.

Even if House Republicans maintain institutional control by a smaller margin, they will have to decide whether to continue to use the power of House committees to engage in perpetual partisan investigations and inquisitions against a newly elected president.

In short, the epic battle for winning control of Congress will coincide with an epic intra-party debate among Republicans that will shape the future of the GOP. Will House Republicans become a small-tent, Trump-like party, viewing congressional committees as instruments of never-ending political war? Or will they act like a traditional Republican governing party in opposition, offering conservative ideas and reaching out to Republicans and independents who are alienated by the party of Trump, especially women, young voters and Hispanics?

Sen. Ted Cruz (R-Texas) is now raising the possibility of permanently obstructing the pending nomination of Judge Merrick Garland to the Supreme Court, and any potential Clinton nominations to the court. Cruz argues it would be fine to leave the Supreme Court with only eight justices. If other vacancies arise, would Cruz argue it would be fine to leave the court with only seven justices, or six? 

Meanwhile Rep. Jason Chaffetz (R-Utah), who has changed his position on whether he supports Trump several times — this week he supports Trump — has announced his intention to use the House Oversight Committee as a partisan weapon against Clinton for the next two years.

It would be a huge mistake for the GOP to follow a Trump defeat by acting like a permanent party of congressional Republican Trumps.

A wiser course for Republicans would be to confirm the Garland nomination to the Supreme Court in the lame-duck session. If the GOP continues to obstruct Supreme Court nominations, President Hillary Clinton should name instead a widely respected and more progressive nominee and take her case to the country.

It would be wise for Democratic and Republican Senate leaders to seek a bipartisan long-term agreement to reform Senate rules to protect the legitimate interests of both parties. It would be equally wise for House Speaker Paul Ryan (R-Wis.) to reject the Chaffetz plan and not allow the GOP to look like a congressional party of Trumps.

You can be certain that a President-elect Clinton and Democratic leaders in Congress will welcome any moderate Republicans and independents to join the Democratic fold if Republicans make the wrong choices.

Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and Rep. Bill Alexander (D-Ark.), then chief deputy majority whip of the House. He holds an LL.M. in international financial law from the London School of Economics. He can be read on The Hill’s Contributors blog and reached at brentbbi@webtv.net.