InsideSources

The 2018 midterm elections are finally over. Democrats gained control of the U.S. House of Representatives.  Republicans increased their narrow majority in the Senate. And Democrats picked up seven new governor positions, narrowing the Republican advantage to 27-23. All agree we are a divided nation.

But you would not know it from the victory celebrations of most of the winners.  Invariably it is proclaimed that “the people have spoken” and now it is time to get on with the “people’s business.”

But what have the people said and what is the people’s business when the victors in most elections have prevailed by something less than 60 percent of the vote, many have won by less than 1 percent of the vote, and a few have been elected with less than 50 percent of the vote? Of the 35 elections for senator, 17 were won with less than 55 percent of the vote and eight with less than 52 percent of the vote. Do the votes for the losing candidate count for anything in the minds of the winners and their supporters?

Consider the just concluded elections in Florida and Georgia. Ron DeSantis defeated Andrew Gillum for governor by a margin of 32,463 votes from a total of more than 8 million. Rick Scott defeated Bill Nelson for senator by an even narrower margin, 10,033 votes. In Georgia, Brian Kemp was victorious over Stacey Abrams by 54,723 votes out of nearly 4 million. What is the message the victors should take from these results?

Recent history suggests that the message will be, to quote President Barack Obama from a 2010 meeting with Republican congressional leaders, “Elections have consequences, and I won.” Or, to quote President Donald Trump in a speech to Ohio Republicans last August, Democrats need to “get used to it — we won the election.”

In other words, ours is a winner-takes-all democracy. Get 50 percent plus one of the vote, or even lose the popular vote in Trump’s case, and you are entitled to implement your policies lock, stock and barrel. As Obama instructed GOP leaders in 2013, “If you don’t like a particular policy … go out and win an election.”

Surely that is not what the framers had in mind in the founding of our democratic republic. In the brief 13 years between the Revolution and drafting of our Constitution in 1789 they had experienced in most of the states the hazards of majoritarian tyranny. They devoted much thought and discussion to controlling what James Madison in Federalist 10 called majority factions. Federalism, separation of powers, bicameralism, enumerated powers, the presidential veto and judicial review were all intended, in part, to constrain those wielding power at the moment — to make compromise and collaboration necessary.

But constitutional structure cannot do all the work of resisting the tyranny of the majority. Those elected to public office must appreciate that a narrow victory at the polls is just that — a narrow victory. Winning with even as much as 60 percent of the vote means that 40 percent of the people preferred someone else. Are those who voted for the loser to have no representation until the next election?

If so, their only plausible choice is resistance. And that is where we seem to have arrived, particularly in our national politics. Republicans resisted the Obama administration at every turn. Democrats pronounced themselves The Resistance as soon as President Trump was elected.

To succeed as a system of peaceful governance, representative democracy cannot be a winner-takes-all contest. Rather it requires humility on the part of the elected and their supporters, and respect for the views of those who supported the losing candidate.

When it takes two recounts to determine a winner, as in the Florida Senate election, the people have spoken not that to the victor belongs the spoils but that to the victor goes the difficult challenge of representing a closely divided electorate.

There can be no surer guarantee of a deeply divided electorate in the next election than having those in power declare that “we won, you lost, get over it.”

Leading up to the 2018 midterms, net neutrality-supporting think tank Fight for the Future (FFTF) highlighted thousands of selfies of voters who said they were “voting for net neutrality” — i.e., Democratic candidates who they hope will either push the Federal Communications Commission (FCC) to reinstate net neutrality rules, or legislate net neutrality themselves.

But now that Democrats have won the House, tech experts both for and against net neutrality rules are unsure how the net neutrality debate will pan out, and they don’t expect any net neutrality bill to gain traction in Congress.

A few days before the midterm elections, net neutrality supporters got a boost from the Supreme Court of the United States’ (SCOTUS) refusal to hear US Telecom’s appeal regarding the Obama administration’s 2015 net neutrality rules. Several think tanks called the denial, issued Friday, a win for net neutrality.

But it’s more a technical and legal win for agency independence because by declining to hear the case, SCOTUS deferred to the Federal Communications Commission’s (FCC) expertise and upheld its authority to issue rules regarding net neutrality, the American Enterprise Institute’s (AEI) visiting fellow Roslyn Layton told InsideSources.

SCOTUS’ refusal to hear the case means the 2015 rules may still be valid, even though the FCC repealed them last year. Whether or not those 2015 rules still stand will be decided in the D.C. Circuit Court of Appeals, in the Mozilla v. FCC case. And then there’s the United States v. California case, in which the Department of Justice (DOJ) is suing the state of California for overriding federal law and passing its own net neutrality rules.

Until those cases are decided, experts say, Democrats probably won’t try to legislate net neutrality.

“I think it’s hard to see a path forward with net neutrality legislation,” Public Knowledge’s Senior Policy Counsel Philip Berenboick told InsideSources.

However, Democrats will probably try to keep the FCC on a tight leash and bring commissioners up to the hill for a lot more oversight hearings, according to House Energy and Commerce Committee ranking member Rep. Frank Pallone Jr. (D-N.J.), in a statement to The Hill.

But other experts think there’s potential for some kind of bipartisan legislation to pass, depending on how the various net neutrality lawsuits evolve.

“We’re going to see in the early part of the year the arguments of the net neutrality case, Mozilla v. FCC,” Layton said. “And that could get people to move. What I expect is going to happen is the courts are going to say, the agencies have deference to change their mind and say whoever is in power gets to change the rules. I actually think that the court rulings could drive some bipartisan legislation.”

Ryan Radia, a research fellow at the Competitive Enterprise Institute (CEI), however, thinks compromise between Democrats and Republicans is unlikely because the pending lawsuits over net neutrality rules are so contentious.

“I don’t think the odds of any meaningful legislative change are going to go up with a Democratic House,” he told InsideSources.

But it’s possible Democrats could pass a net neutrality bill through the House to force a debate on the topic and send a message to the voters focused on the issue–many of them young activists important to the party. Even if the bill eventually dies in the Senate or on Trump’s desk, the Center for Democracy and Technology’s Vice President for Policy Chris Calabrese said it could set the stage for future success.

“I’m sure they’ll want to push legislation, it’s very popular and very popular among their base, but the Democrats are pushing back against a regulatory landscape where there is no regulation, and I think everyone things eventually there will be legislation,” Calabrese told InsideSources. “So I think what we’ll probably see in this Congress is two years getting strong net neutrality legislation shaped and passed in the House and then in 2020 or 2022, a concerted push to get something passed.”

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Fight for the Future (FFTF), a left-leaning think tank that supports net neutrality, believes the issue will drive voters to the polls next week. But they don’t appear to have data on their side.

FFTF is partnering with local groups to host net neutrality town halls in 24 swing districts across the nation the week before midterm elections. Their goal is to get out the vote for candidates (overwhelmingly Democrats) who support overruling the FCC and the reinstating Obama-era net neutrality rules.

Anthony Damore, a Florida resident who plans to attend a local town hall hosted by Palm Beach Tech and other groups said in a FFTF press release, “I plan to attend the Tele-town hall and make sure Congressman [Brian] Mast (R-FL) knows why supporting net neutrality means supporting an Internet that prioritizes people over corporate interest, that videos and music aren’t subject to fast lanes and slow lanes ensuring only those with money get heard. Without net neutrality smaller companies would be helpless trying to keep their businesses afloat and turn a profit. Net neutrality ensures we all have a voice.”

But there is no data to indicate that net neutrality is a priority for midterm voters. In fact, the Brookings Institution found that the top three issues for Floridians this year are health care, immigration and guns, respectively. Net neutrality didn’t even make the list.

Furthermore, the American Enterprise Institute’s (AEI) Roslyn Layton, a visiting fellow specializing in tech policy, recently released a study finding that net neutrality rarely, if ever, motivates voters to go to the polls.  “Surveys and conventional wisdom on elections suggest that voters focus on top line issues such as the economy, education, health care and security,” Layton found.

A recent poll by the Henry J. Kaiser Family Foundation (KFF), which focuses on health care policy, found that health care, gun policy and immigration are the top three issues for voters this year respectively, followed closely by tax reform and foreign policy. Neither net neutrality nor tech policy in general have emerged as key issues, despite recent scandals surrounding Silicon Valley’s handling of personal data.

Part of the reason for this, Layton argues, is that net neutrality and privacy issues are difficult to define.

“When asked open-ended questions, such as how to define net neutrality and how to regulate it, a leading poll suggests that as many as 75 percent of Americans have not heard of the topic or cannot explain it,” Layton says, citing a 2015 Hart Research study. “While there may be general support among Americans to protect the internet … and specific support for net neutrality among millennials, there is not necessarily an agreed definition or preferred policy instrument.”

And yet, she notes, Democratic insiders and left-leaning think tanks are still trying to make net neutrality a key midterms issue.  Layton quotes Senator Chuck Schumer, who said “If our Republican friends don’t wise up and join us, Democrats will be making net neutrality a major issue in the 2018 elections, and we will.”

“Democrats are out of touch with what the electorate cares about. What Democratic voters do care about is health care,” Layton told InsideSources.

The Center for Democracy and Technology, which also supports net neutrality, thinks FFTF’s town halls are sending a message to Congress and encouraging voters to vote their values.

“The vast majority of people across the political spectrum support net neutrality and understand that access to the internet plays a critical role in their daily lives,” Open Internet Counsel Stan Adams told InsideSources. “Net neutrality is good for individuals, small business, and the broader economy. These town halls are an excellent opportunity to remind members of Congress that Americans expect it to take action to protect net neutrality.”

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The Democratic Congressional Campaign Committee is sending mixed signals about U.S. Rep. Annie Kuster. They must believe the Democratic representative from New Hampshire’s 2nd Congressional District can hold on to her seat next year because they named her chair of the Frontline Program, which provides congressional candidates with extra fundraising and campaign infrastructure support. However, they also listed her as one of the 19 initial candidates for the program.

DCCC Chairman Ben Ray Luján announced the 19 members for the 2017-2018 Frontline Program on Monday. The roster is about half of freshman members. Eight of the candidates won in districts that President Donald Trump carried in November, and all of them, except for one, are listed on the National Republican Congressional Committee initial targets list.

Seven of the members on this year’s list were also on the DCCC’s initial 2016 Frontline list, but they have a good track record, because out of the 12 Frontline members on the 2016 list, only one candidate lost and that was Nebraska Rep. Brad Ashford.

“Each of these Democrats knows how to win tough races — proven by their success in a difficult national environment in 2016,” Luján said in a statement.

The DCCC announced in February that Kuster would chair the vulnerable incumbents program, which is her first time at the helm. This is Kuster’s third term in Congress, and she’s been elected in the more Democratic-leaning district of New Hampshire, which includes cities like Nashua and Concord. The DCCC should be confident she can deliver a fourth term. Inside Elections by Roll Call is ranking the 2nd Congressional District as a “currently safe Democrat.”

Despite being chair of the Frontline Program, she is also one of the vulnerable incumbents that is expected to receive DCCC assistance in the 2018 midterm elections. Of course, the list can change over time and she could be removed if it looks like she doesn’t have a serious Republican challenger.

Yet, previous chairs of the program were not also on the list of vulnerable incumbents. For example, for the 2015-2016 Frontline Program, Michigan Rep. Dan Kildee was chair, but he was not a candidate on the list. In the 2013-2014 program, Minnesota Rep. Tim Walz was chair, but not considered a vulnerable candidate for that election cycle. He was a previous member of the program for the 2011-2012 program under the leadership of Florida Rep. Debbie Wasserman Schultz, who was also not listed as a vulnerable incumbent when she chaired it.

It could make sense for a previously vulnerable incumbent to chair the program since they could bring the knowledge and experience the knowledge and experience with them to share with other representatives across the country, but it is still an interesting choice to have Kuster chair the Frontline Program, while also listing her as a vulnerable incumbent.

“The Frontline Program will help these members again build strong campaigns, maximize resources and take advantage of the energy from the grassroots, so that they can continue to fight on behalf of the hardworking people in their districts,” Luján added.

Kuster enters the 2018 midterms with a decent amount in the bank, approximately $1 million, actually. The median amount of cash on hand that lawmakers who won their races in 2016 have is about $367,000, or about $361,000 for House candidates, putting Kuster well above the average.

However, Kuster spent nearly $2.2 million against Republican challenger Jim Lawrence. He spent less than $100,000, yet, Kuster only defeated Lawrence by 5 percent, 50-45 percent, respectively, with Libertarian John Babiarz receiving 5 percent. Perhaps, that close winning percentage in a relatively safe Democratic district is why she is listed in the incumbent protection program.

Democrats need to gain 24 seats to take control of the House, which is expected to be a difficult task for Democrats in 2018. Even though it’s a midterm election and the incumbent party of the White House tends to lose seats, midterms also don’t favor Democrats when voter turnout is less favorable for them, making protecting their incumbents a high priority.

However, Democrats are also on the offensive in 2018, hoping to capitalize on any anti-Trump voters. In their target list, they narrowed in on 59 GOP-held seats, focusing on districts that Hillary Clinton carried or that were narrowly won by Trump. Twenty-three Republican lawmakers come from Clinton districts, which is almost the number of seats Democrats need to win in order to get a House majority.

In turn, the National Republican Congressional Committee identified 36 Democratic incumbents, including Kuster, for the midterms, with approximately one-third of their targets coming from districts Trump won. Yet, several of those members were not identified on the initial Frontline roster. The NRCC has also named 10 members to its incumbent protection program, who mostly come from districts Clinton won.

U.S. Rep. Carol Shea-Porter is also a candidate for the DCCC’s Frontline Program, which is expected for anyone running in New Hampshire’s 1st Congressional District. The NRCC also listed Shea-Porter as one of its incumbents on its target list for 2018. Inside Elections ranks it as one of five “purely toss-up” seats for 2018. Shea-Porter defeated former Republican Rep. Frank Guinta, but it’s been a back-and-forth contest between the two candidates for the last six years.

Shea-Porter enters the 2018 midterms with less of an advantage than Kuster — money-wise at least. She only has approximately $3,800 in the bank after a tight race between Guinta and Independent candidate Shawn O’Connor. Out of the 435 representatives in the House, Shea-Porter has the fifth lowest cash on hand total.

Even though the election is more than a year away, the political attacks are already happening.

“It’s a no-brainer to choose Annie Kuster as the leader of the DCCC’s Frontline Program since she can draw on her own embarrassing political blunders as examples of what not to do,” said NRCC spokesman Chris Pack in a statement to NH Journal. “Rest assured, the NRCC is aggressively working to recruit viable candidates in both Granite State congressional seats to hold Annie Kuster and Carol Shea-Porter accountable for their blind hyper-partnership.”

The NRCC points to 2013 when Kuster was late paying for her property taxes. It came up during her 2014 reelection campaign against Republican Marilinda Garcia as an example of one of her “embarrassing political blunders” during her term, and when it appeared that she couldn’t answer a question about the Benghazi attacks or know that the Libyan-city was in the Middle East.

The DCCC did not respond to a request for comment from NH Journal on NRCC’s statement. Kuster’s office also did not respond to a request for comment.

The NRCC is hoping to recruit strong candidates for New Hampshire’s Congressional districts, with the hopes that it will knock Kuster and Shea-Porter out of their seats.

Earlier this week, the NRCC blasted Shea-Porter for sending a press release condemning the the GOP’s replacement for Obamacare quickly after it was released to the public.

“That means Carol started immediately complaining instead of fully digesting the bill, sleeping on it, getting input from her constituents, speaking to advocacy groups, health care experts, etc,” Pack wrote in a NRCC blog post. “But this should come as no surprise since Carol has always put knee-jerk partisan politics ahead of actual legislating. Maybe that’s why Granite State voters have repeatedly shown buyer’s remorse by booting her out of office on multiple occasions.”

When asked for a comment about the NRCC’s statements, Shea-Porter’s office referred to the same press release she sent out when the GOP’s plan was released.

“House Republicans should be ashamed of their new bill to repeal the Affordable Care Act, which would hurt New Hampshire workers and families by ending Medicaid expansion, driving up premiums, leaving fewer people with coverage than before the law passed, and setting us back in the fight against the heroin, fentanyl, and opioid epidemic,” she said in her statement.

Although no candidates have officially declared their intent to run against Kuster or Shea-Porter, there are several Republicans who have indicated they are interested in potentially challenging them for their seat.

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It’s never too early to be thinking about the 2018 midterm elections. For the incumbent party in the White House, it usually means losing seats. However, Republicans are poised to retain control of the House and Senate, barring any major catastrophe, which would give Democrats the advantage.

In New Hampshire, it could mean tough races for Democratic incumbent Reps. Carol Shea-Porter and Annie Kuster, and their final campaign finance filings for the 2016 election cycle can provide clues on what to expect for their reelection campaigns.

Assuming they run again for their seats, Kuster and Shea-Porter enter the 2018 contests with a significant difference between them in their total cash on hand.

Shea-Porter only has approximately $3,800 in the bank as a result of a tough election against former Republican Rep. Frank Guinta and Independent candidate Shawn O’Connor. Out of the 435 representatives in the House, she has the fifth lowest cash on hand total.

Kuster, on the other hand, sits modestly with just over $1 million stashed away.

The median amount that lawmakers who won their races in 2016 have in the bank is about $367,000, according to the Center for Responsive Politics (CRP), a nonpartisan research group tracking money and lobbying in elections. Specifically for House candidates, it’s about $361,000.

Of course, for party leaders they have the biggest war chests since they are expected to raise money to help their colleagues. House Speaker Paul Ryan had the highest cash on hand in the House with $9.1 million.

“The typical pattern is that campaigns that are in tough reelections or open seat battles will almost never have any money left,” said Caleb Burns, a partner at Wiley Rein LLP, to the CRP. “But conversely, the opposite is also true, where members of Congress have extraordinarily safe seats and don’t feel the pressure of having to raise a lot of money.”

That’s especially true for New Hampshire’s representatives. Kuster was assumed to have a relatively safe seat in the Granite State’s 2nd Congressional District, while Shea-Porter in the 1st Congressional District was always going to have a tough time ousting Guinta.

So what does this mean going into next year’s race?

Well, it shouldn’t come as a surprise, but the National Republican Congressional Committee (NRCC) included Shea-Porter and Kuster in their initial 36-member target list.

Kuster spent nearly $2.2 million against Republican challenger Jim Lawrence. He spent less than $100,000, and yet, Kuster only defeated Lawrence by 5 percent, 50-45 percent, respectively, with Libertarian John Babiarz receiving 5 percent. The NRCC figures that if they can recruit a decent candidate and put a little money into the race, they could have a chance at ousting Kuster.

For Shea-Porter, the 1st Congressional District is always a toss up, mostly because it’s been a Shea-Porter versus Guinta contest every two years since 2010. The NRCC and the Democratic Congressional Campaign Committee usually throw a decent amount of funds toward the district’s candidates. It also helps the NRCC that Shea-Porter has been kicked out by voters before and she defeated Guinta in a crowded field. She won by a margin of 162,080 to 156,176, while independents O’Connor and Brendan Kelly and Libertarian Robert Lombardo garnered a total of 46,316 votes among them, possibly to the detriment of Guinta.

However, Republicans swept the 1st District in every other federal race. Donald Trump defeated Hillary Clinton by about 6,000 votes, former Sen. Kelly Ayotte beat Sen. Maggie Hassan also by about 6,000 votes, and Gov. Chris Sununu defeated former Executive Councilor Colin Van Ostern by about 18,000 votes. With the right candidate, the NRCC believes they can flip the district again.

Any ideas on who’s going to run against Shea-Porter or Kuster?

As recently as Wednesday, one Republican has indicated that he’s “seriously” interested in challenging Shea-Porter in the 1st District.

John Burt, a four-term New Hampshire House member from Goffstown, told WMUR that he has spoken with conservatives throughout the state and region about running for Congress. He said he hopes to make a final decision in the coming weeks.

“I have no doubt that I can beat Carol Shea-Porter,” he said. “In 2018, it’s going to be another 2010-type sweep of Republicans heading to D.C. and also to the New Hampshire State House.”

Other Republicans being talked about as possible candidates include state Sen. Andy Sanborn from Bedford and former state commissioner of the Department of Health and Human Services John Stephen, who is also a former gubernatorial and congressional candidate.

Don’t be surprised if Guinta makes another run for the seat he lost. Neither Shea-Porter nor Guinta ruled out running again in 2018 if they lost.

Earlier this month, the DCCC made Kuster the chair of its “Frontline” incumbent retention program, which gives special attention to vulnerable Democratic incumbents, so they must feel confident that she can win again in 2018.

However, former state Rep. Joe Sweeney of Salem previously told WMUR that he is “in the very early portion of exploring a run” for the 2nd District against Kuster.

“I firmly believe that Congresswoman Kuster does not adequately represent the district, and her performance and voting record presents a winnable path,” he said.

Senate President Chuck Morse could also be a potential candidate. The Salem senator is listed on the National Governors Association’s website as a former governor of New Hampshire. He served as acting governor for two days from January 3 to 5, when former Gov. Hassan resigned early to be sworn in as U.S. Senator. The New Hampshire Union Leader sees him as an option for Republican Party operatives still looking for a candidate.

Voters shouldn’t rule out seeing the two Republican frontrunners from the 2nd District GOP primary on the ballot either. Former House Majority Leader Jack Flanagan from Brookline indicated that he was hearing from supporters to run again in 2018. He lost the GOP primary to Lawrence by about 5,000 votes. Also, with Lawrence’s close finish to Kuster in the general election, he heard calls from supporters to consider yet another run. If he did, this would be his third congressional bid in six years.

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