The Majority Leader’s Quest for Narrow Partisan Advantage Could Save American Democracy
By Jacob Fass
Although there are many culprits in the rise of party polarization and Congressional gridlock that have driven Americans’ faith in government to record lows, there are few individuals more responsible for this sad state of affairs than Senate Majority Leader Mitch McConnell. In the early days of the Obama administration, then minority leader McConnell made the insidious, if completely accurate, observation that Republican cooperation with the President would provide the administration with the warm glow of bipartisan agreement.
If Obama could present his initiatives to the American people as the products of cross party negotiation, his popularity would increase, which in turn would hurt the electoral fortunes of McConnell’s fellow Republicans. With this insight in mind, McConnell embarked on an unprecedented strategy of absolute obstruction. He punished his Republican colleagues who considered cooperating with Obama, used every procedural obstacle to block the Democrats’ legislative initiatives, and more generally created the kind of gridlock and dysfunction that he knew would sow voter disgust with Washington and benefit the minority party.
The strategy worked well enough to send Obama’s approval ratings plummeting and spark the Tea Party wave that led to the election of a Republican House in 2010. In 2011 McConnell, along with Eric Cantor in the House, was one of the lead proponents of a scheme to use the federal debt ceiling to extract large spending cuts from President Obama. These hostage negotiations, which nearly led to a catastrophic default and did lead to a stock market collapse and a downgrade on U.S. government debt, were an international embarrassment. McConnell, however, was unfazed by the outcome of the debt ceiling debacle, claiming that, “some of our members may have thought the default issue was a hostage you might take a chance at shooting…What we did learn is this—it’s a hostage worth ransoming.” The Americans whose stock portfolios, pensions, and wages were damaged in the economic aftermath of McConnell’s antics probably would not agree.
As minority leader, McConnell has either cynically empowered the most extreme members of his caucus or, in cases like the 2013 government shutdown, been unable to stop them. His main conviction seems to be the elimination of special interest money in federal elections, a cause that he has pursued passionately since his early days as a Senator. Needless to say, the election results of 2014, which resulted in McConnell’s accession to the powerful position of Majority Leader, were disappointing. But if recent news reports are to be believed, then McConnell, along with senior Republicans like Judiciary Committee Chair Chuck Grassley, are prepared to make major positive changes to senate procedure. Specifically, the GOP leadership is considering eliminating the filibuster for Supreme Court nominees and allowing justices to be confirmed with a simple majority on the Senate floor.
What led the GOP leadership to consider this change and why is it potentially so important? The filibuster, a once obscure procedural tactic memorialized by James Stuart, in the 1939 film Mr. Smith Goes to Washington, requires a supermajority of 60 senators to move legislation forward. Although it was used infrequently throughout the 20th century—with Strom Thurmond’s 14-hour jeremiad against the Civil Rights Act serving as a notable exception—over time senators have made greater use of the filibuster, making it harder and harder to get legislation through the upper house.
During the Obama administration, McConnell used the filibuster to bring the Senate to a grinding halt, spearheading over 413 during his time as minority leader, more than twice as many as when the Democrats were in the minority from 1995 to 2006.
In the early 2000s, Senate Democrats began using the filibuster to block President Bush’s judicial nominations. Republicans threatened to use the so-called “nuclear option” and eliminate the judicial filibuster. Ultimately an agreement was reached and the nuclear option was taken off the table but the problems of the filibuster did not go away. During the Obama administration, McConnell used the filibuster to bring the Senate to a grinding halt, spearheading over 413 during his time as minority leader, more than twice as many as when the Democrats were in the minority from 1995 to 2006. Every major piece of legislation was subjected to a 60-vote requirement. Even when it was obvious that a bill would have enough support to move forward, McConnell would insist on a cloture vote anyway, in order to slow down the Senate calendar and thwart the agenda of the majority. McConnell and his fellow Republicans also used the filibuster to block dozens of executive and judicial branch nominees, leading to vacancies in some of the government’s most important courts and agencies. Fed up with this state of affairs, Democratic Majority leader Harry Reid used the nuclear option in the fall of 2013 and ended filibusters for executive and judicial branch confirmations with a simple majority vote. The only exception was Supreme Court confirmations, which would continue to proceed under the old filibuster rules.
Although some suggested that the change would lead to a catastrophic breakdown in the legislative process, life in the Capitol went on much as it had before. Although the phrase “nuclear option” is more suggestive of a post-apocalyptic meltdown than an arcane change to the legislative process, the world did not end in November of 2013. The only difference is that now a duly elected President and a majority of Senators can actually fill positions that are crucial to the proper functioning of government.
Although McConnell strongly denounced Reid’s decision at the time, as Majority Leader he has shown no inclination to return to the old regime where 60 votes were required to win confirmation, and he may go even further than Reid by changing the rules for Supreme Court Justices. Although there has never been a filibuster for a Supreme Court justice, in our era of rising ideological polarization around legal issues like abortion, campaign finance, and health care, it would be foolish to rule out the possibility.
By keeping Reid’s reform and expanding its scope, McConnell is essentially making a bet on the outcome of the next Presidential election. He is wagering that Republicans will win the White House and keep their narrow majority in the Senate. In that case, a change to the rules will make it much easier for a Republican president to appoint a Justice with very conservative views and get that Justice confirmed with a narrow partisan majority. This would only exacerbate the Roberts court’s turn to the right, a shift that has gutted campaign finance restrictions, voting rights legislation, and affirmative action programs. Still, McConnell should make the change and go even further by ending the filibuster for legislation as well.
Supporters of the filibuster often argue that it is necessary to protect minority rights and that without it the Senate would be transformed from a respectable body into a populist mob, no better than the lowly House. The reality is that even without the filibuster the Senate is already an extremely undemocratic institution. Diane Feinstein and Barbara Boxer, who represent almost forty million Californians, have no more power than John Barrasso and Mike Enzi who represent half a million Wyomingites. There is no need to add to this disparity by giving the minority additional power to block the wishes of a popular majority. During the middle of the 20th century—an era when the filibuster was used sparingly and there was large ideological overlap between the parties—this was probably not an issue of serious concern. But in today’s age where the most conservative Democrat is more liberal than the most liberal Republican, Congressional productivity has fallen to historic lows and the legislative branch seems unable to complete the most basic tasks of governance. Although differences between the Republican House and President Obama account for much of this breakdown, the filibuster surely accounts for some of this acrimony.
Eliminating the filibuster entirely would help return a modicum of democracy and efficiency to our legislative process. Over the next two years the reform would not have any real impact. A bill that could pass the Senate with only 51 votes, such as the repeal of the Affordable Care Act, would likely be vetoed by President Obama. But if Republicans are able to win the White House in 2016 or Democrats somehow manage to take control of both houses of Congress, then a return to majority rule in the Senate could have significant consequences. The party in control of Washington would be able to pass their agenda with limited obstruction from the minority. Depending on the election results and your political affiliation, this system could lead to bad policy outcomes about half the time. But this would be far superior to our current dynamic of legislative gridlock, in which almost nothing is accomplished and each party blames the other for the resulting standstill.
Unfortunately many Senate institutionalists like John McCain and Lindsey Graham are staunchly opposed to even limited changes to the filibuster, arguing that they will increase partisan acrimony and limit the rights of individual Senators. Removing the filibuster for legislation or Supreme Court nominations will certainly limit the power of the minority and will do nothing to increase goodwill between parties. It would, however, provide incentives for the parties to behave responsibly, by giving them the tools to govern the country without obstruction from the minority.
The last six years has seen the minority use the tools of obstruction to behave in an incredibly irresponsible manner, hurting our economic recovery and diminishing our standing in the world. Every American, regardless of ideology or party, should want to avoid repeating that disaster. So while I certainly hope that Mitch McConnell is not majority leader in 2016, if he is he should be able to pass his legislative program and have the American people judge it on its results. This would help solve the problems of legislative gridlock that threaten to poison our democracy, not by bringing the two parties together but by allowing the system to work in the absence of partisan cooperation. In our age of hyper-polarized parties, this may be the best path forward for our legislative process and the American people who rely on it to serve their interests.