Election 2020: The Battle for the Senate

Whatever happens to the White House, control of the Senate will be crucial.

Today, I’ll look at how key races have shifted in the past six month, and why this matters for environmental law.

We’ve just finished the Democratic Convention, and the GOP Convention is underway. But control of the Senate may be equally important.It’s crucial to any president’s legislative agenda and judicial appointments. Senate control gives an opposition party a lot of power to hamstring a President.  

In order to control the Senate, the Democrats need a net gain of four seats unless they win the White House.  (Because of the Vice President’s tie-breaking vote, the Democrats would only need three net pickups to control the Senate if they win the White House.)  Starting six months ago, I’ve been tracking some key races. It’s useful to get a sense of how the situation has shifted over time based on the views of two prognosticators, Larry Sabato and Cook Political.

Playing Defense.

Begin with the seats that Democrats need to defend:

Alabama. In February,  Sabato and Cook rated Doug Jones’s seat as either leaning Republican or a toss-up.  It has now moved a notch toward the Republicans, with the ratings now likely Republican or leaning Republican.

New Hampshire.  In February, Sabato viewed the race in New Hampshire as leaning in favor of the Democratic incumbent. This race has moved toward the Democrats, with Sabato saying likely Democratic and Cook saying solidly Democratic.

Pickup Opportunities.

What seats could the Democrats flip? These were the most promising in February and where the races are today:

Arizona. Sabato and Cook agreed six months ago that Arizona (McSally’s seat) was a toss-up. Both now rate the seat as “leans Democratic.”

Colorado.  Gardner’s seat also looked like a toss-up in February. Cook still thinks so, but Sabato now thinks it leans Democratic.

MaineSix months, Cook also viewed Maine (Collins) as a toss-up while Sabato said “Leans Republican.”) Now both think it’s a toss-up.

Iowa. Sabato thought in February that the race leaned in Joni Ernst’s favor. Now Sabato and Cook both think it’s a toss-up.

North Carolina. In February, Cook rated this race as leaning in Thom Tillis’s favor, while Sabato thought it was a toss-up.  Now they both think it’s a toss-up.

Georgia.   Six months ago, both Cook and Sabato rated Georgia as “Leans Republican.” There are actually two Senate elections in Georgia, which makes things complicated. There’s a special election to replace a retiring Senator. Cook views that one as leaning Republican, whereas Sabato sees  as solidly Republican.” There’s also a regularly scheduled Senate election, which Sabato Rates as leaning Republican and Cook says is a toss-up.

In short, in the past six months, there’s been an incremental shift toward the Democrats in some key races, but control of the Senate could still go either way.  A lot will depend on the toss-up races.

Environmental Policy Implications

Why does Senate control matter for environmental law? If Biden wins, there will be little or no chance of passing significant legislation without control of Congress.  It seems very likely that the Democrats will keep the House, but that won’t give them a lot of legislative leverage if Mitch McConnell is calling the shots in the Senate. Forget about passing climate change legislation then!

A Republican Senate can also block Biden’s appointments to agencies like EPA positions or lower federal courts, and perhaps impossible to fill vacancies even on the Supreme Court.  So Biden would be shackled from the outset by a Republican Senate.

On the other hand, if Trump wins, a Democratic Senate would be the only safeguard against a continuing slew of anti-regulatory judges.  If one of the remaining liberals on the Supreme Court were to leave the bench, Trump would be in a position to secure a 6-3 conservative majority on the Court for at least 10-20 years.  That could be a near-permanent barrier  to vigorous environmental regulation.

We now have a little more than two months until Election Day. Keep an eye on these Senate races as we get closer.

 

 

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About Dan

Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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