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5 Things That Could Get Done in a Divided Government

A scene from the McConnell victory party in Louisville, Ky. (Tom Williams/CQ Roll Call)

Congratulations, all you members-elect. Now, about your freshman years: What is it you expect might actually get accomplished with the help of your “Yes” votes, or despite your presence in the “No” column?

Orientations for the newest senators and representatives, which begin in six days, are the time every two years when the giddy memories of election night celebrating begin to get pushed aside by the sober realities of legislating. And given the certainty that divided government will continue through 2016, most efforts at making meaningful change to federal policy will quickly prove themselves to be Sisyphean tasks.

After four years of gridlock and dysfunction that even the nuclear option could not much dislodge, the Republican gains in the House and the party's trouncing takeover of the Senate are way short — by themselves — of providing an antidote for the fundamental inability of Congress and President Barack Obama to agree on anything for the history books.

Instead, newcomers may soon enough realize their most fruitful lawmaking pursuits in the 114th Congress won’t get chronicled that often on the home pages and front pages of the media, but might make significant changes in the lives of many Americans nonetheless.

Yes, the most conservative GOP bloc will be emboldened to force Obama to pick up the veto pen as often as possible in the final quarter of his presidency — and a handful from those ranks will become especially confrontational as they move into their presidential campaigns. But the stated preference of Republican leaders is to put the party in the best light for 2016 by demonstrating it can govern. And if they get their way in both the Senate and House, they may yet find a partner in a president eager to build his legacy at the margins — even if that means breaking his old habits that have limited his congressional outreach and collaboration.

If that happens, here are five of the most consequential issues where deals are likeliest to come together:

Trade Liberalization: If Obama is willing to try for a relatively big victory that portrays him as a bipartisan player, he could do no better than legislation reviving the power of the president to strike international trade agreements that Congress must either approve or reject, but may not amend. The business community would rush to help him out and a lopsided majority of Republicans would embrace the effort — even as a clear majority of his fellow Democrats on the Hill would disdain the proposal.

Reviving so-called trade promotion authority is essential to finalizing two big deals lowering tariffs, one with a bloc of nations in Asia and the other with much of Europe, that corporate America says will will boost U.S. economic growth and bolster business confidence. Many Democrats fear such pacts will end up doing two things they abhor — hurt labor and harm the environment abroad. But if Obama promises to bring along even a quarter of his party from each chamber, he’ll have willing partners in GOP leadership and almost all Republican lawmakers outside the “hell no” caucus.

Corporate Taxes: Few are expecting the most comprehensive rewrite of the entire IRS rulebook in three decades, but the impenetrably complex section devoted to business income is being eyed intently by the White House and Hill Republicans.

A deal to revive and extend many of the recently expired, but routinely maintained corporate tax breaks are possible in the lame-duck session. But after that, both sides say it’s way past time to eliminate hundreds of deductions, exclusions and industry-specific loopholes in return for lowering corporate rates. What they don’t agree on so far is whether the tradeoffs should be declared a zero-sum game from the outset or should be structured to generate billions of dollars during the coming decade.

Republicans say a revenue-neutral corporate tax simplification would provide sustained benefit to the economy. Obama says what the economy needs even more is the jobs that would be created from generous and reliable long-term federal investment in rebuilding roads, repairing bridges, modernizing the air-traffic control system and upgrading rail service.

Public Works: The laws governing highway, aviation and Amtrak projects are all up for renewal in the next Congress, when GOP senators in half a dozen of the most heavily traveled — and politically blue or purple states — expect to be running competitive re-election races. If they get behind insisting that businesses bear more of the cost of an improved transportation network, that could spur a deal on a corporate tax rewrite.

Corporate revenue is unlikely to pay the whole price for any public works package. Some of the highway spending could come from creating a new public-private fundraising system and from supplanting or even replacing the federal gasoline with a levy on each mile a vehicle moves instead of how much fuel it uses.

Criminal Sentencing : At both ends of the ideological spectrum, the view is solidifying that too many people have been imprisoned for too long for crimes that society has concluded aren’t too bad —and once they’re released it’s too difficult for them to re-enter the mainstream. Long sentences mandated during the War on Drugs are coming under intensified scrutiny in a year when Washington, D.C., Alaska and Oregon voted to legalize recreational marijuana usage or possession. Budget pressures are helping fuel the argument that federal prisons are too crowded.

All this suggests a political sweet spot for bipartisan legislation that would reduce federal criminal penalties, partly by ending mandatory minimum incarceration for some drug offenses, while making it easier for some categories of inmates to win earlier releases. Non-violent offenders would be the main beneficiaries. Any deal on a sentencing overhaul might include provisions to help ex-cons get work — by restoring some eligibility for government benefits and smoothing the process for having a criminal record expunged.

Citizen Surveillance: Lawmakers got tantalizingly close this year to a deal setting new limits on how the nation’s intelligence community scoops up information about private citizens’ telephone habits and sifts the records for evidence of terrorism. Congress and Obama will be under pressure to settle their differences early in the new year, because several laws governing the National Security Agency and its once-secret bulk data collection efforts expire at the end of May.

The heart of any deal would be the central provision of a bill the House passed overwhelmingly last summer after an Obama endorsement. So-called telecommunications metadata for domestic calls would remain the property of the phone companies, but the government would be permitted to query the files — usually after receiving the approval of a secret intelligence court, or with an after-action court review in emergencies. Left unresolved, so far, is how to alter a different part of the law governing the collection of phone and Internet records on people outside of the United States, which inevitably sweeps up the communications of U.S. citizens in the process.

Civil libertarians and other advocates for personal privacy worry their interests in shaping these extraordinarily complicated ground rules will be brushed aside by the now strongly Republican Congress — and by a president eager to bend his past positions in order to declare victory and put behind him one of the more contentious and nettlesome controversies of his presidency.

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