The Context

Going into last night, there were 17 competitive Senate seats, six held by Republicans and 11 held by Democrats. Although the Senate race in Alaska is yet to be finalized, the new balance appears to be 53-47 with Harry Reid of Nevada remaining as Majority Leader. These results signal a return to the close party division that was the hallmark of the Senate prior to the 2008 elections, and a further movement away from 2009, when Sen. Reid had as many as 58-60 Democratic Senators and could count on a few moderate Republicans (Sens. Snowe, Collins, Specter at the time) to provide the 60 votes needed to curtail a filibuster and to help get landmark stimulus legislation passed.

For the first time since 1994, there were more than 100 competitive House races going into last night, and Democrats were defending 93 of them.

The Republicans have picked up a net of more than 60 seats in the House, recapturing the majority after four years in the minority. As of Friday afternoon, November 5, the Republicans had a 239-187 majority with 9 races still not finalized. Their net gain eclipsed their historic 1994 gain of 52 seats and included the defeat of committee chairmen such as Ike Skelton, D-Mo. from Armed Services, John Spratt, D-SC from the Budget Committee and James Oberstar, D-Minn. from Transportation and Infrastructure. The carnage knocked off fiscal conservative Democrats (“Blue Dogs”) as well as more liberal members of the Democratic Caucus, with health care reform, TARP, and climate change votes coming back to haunt many Members.

Not to be overlooked, there were 30 competitive governors’ races, with Republicans picking up 11 of them and with another two still to be decided. Also 11 state legislatures have flipped and three more remain too close to call. Republicans now control 25 statehouses and may wind up with 28. This has importance at the federal level because the 2010 Census results will necessitate a redrawing of US Congressional districts for future elections.

Where did these results come from? Polling and less scientific research suggests that what drove voters in this cycle to be more anti-incumbent and more anti-Democrat than usual were the jobless recovery, lingering recession, a perceived lack of focus on job creation and preservation as well as the perception of government overreaching (health care reform) and wasteful spending (bailouts, stimulus). It should be noted that the Tea Party movement embraced these themes and when one looks at the incoming Republican freshman class, although not homogenous, it will generally be large, eager, and opposed to the size and intrusiveness of government.

As noted below, our collective experience tells us that the increased polarization in Congress and the specter of divided government mean that gridlock may be an unfortunate byproduct of Election Day but there will be plenty of new policy initiatives offered and debated.

There is some faint hope for increased bipartisan action in the 112th Congress. The voters have clearly indicated that they want results – not partisan bickering and political gamesmanship. The most likely incoming Speaker of the House, Rep. John Boehner, R-Ohio, is a mainstream Republican with a long track record of working with Democrats on those issues where they can find common ground. The most likely new House Majority Leader, Rep. Eric Cantor, R-Va., has disavowed any prospect that the House would shut down the government in a showdown with President Obama. Both new Republican leaders, however, will have to deal with a freshman class that is not likely conciliatory.

Looking ahead, one group of Members who are waking up to a potentially new troubling reality are “marginal” Democrats running in the 2012 Congressional elections (those with a margin of victory that is fairly small). With 50 states having to analyze their congressional district boundaries now that the 2010 Census is complete, and with a total of 29 Republican governors (with 2 more gubernatorial races still undecided), we expect that new district lines will be drawn to create new Republican seats in the US House of Representatives in time for the next election.

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Jon S. Bouker
bouker.jon@arentfox.com
202.857.6183

Amy J. Demske
demske.amy@arentfox.com
202.857.6484

Craig Engle
engle.craig@arentfox.com
202.775.5791

Philip S. English
english.philip@arentfox.com
202.857.6031

Brett G. Kappel
kappel.brett@arentfox.com
202.857.6494