Gridlock is endemic to the Senate, thanks in large part to the filibuster, which requires 60 votes to end debate on any bill in order to proceed to a vote on the bill itself. The 60-vote threshold is virtually impossible to achieve in the current hyper-polarized Senate, ergo gridlock is assured.
It wasn’t always this way. Greasing the wheels of the Senate to facilitate legislation is theoretically easy.
The filibuster is a procedural rule, originally intended to protect the vulnerable minority from being steamrolled by the majority (even though today the minority protected by the Republicans consists of the wealthy and the privileged). As it was first written, any senator could call for an end to debate when it became an obstructionist or delaying tactic. Since then, the procedure has been modified many times; most significantly, when restrictions on the length of debate were removed, allowing the speaker to continue unhindered for as long as he wanted, unless 60 senators could agree to cloture, i.e., to close the debate and move on to the vote. But a simple majority of the senators can do away with the filibuster altogether.
Mitch McConnell really likes being Majority Leader in the Senate. He wants his old job back and knows how to get it. He’s done it before.
In 2009, Obama entered the Oval Office with a huge approval rating and robust majorities in both House and Senate. The common wisdom held that Republicans had to work with the Democrats in order to keep the GOP from fading into history. But McConnell’s wickedly brilliant insight was to do the opposite. He bet that by relentlessly opposing the Democrats he would cripple their ability to govern, thus eroding their popularity with the voters. His tactics were hugely successful. Though McConnell didn’t succeed in his stated goal of making Obama a one-term president, the Democrats suffered what Obama called a “shellacking” in the midterms. Republicans took back the House and Senate with large margins.
In 2020, Republicans cut into the House majority achieved by Democrats in the 2018 midterm. The Senate seats are evenly divided, though the Democrats have the edge by dint of Vice President Harris’s tie-breaking vote. McConnell, however, has his eyes firmly fixed on the prize. Right off the bat, he blackmailed Chuck Schumer, the Democratic leader, in their first negotiation as they formed the Senate. McConnell gave Schumer an ultimatum: agree not to touch the filibuster, which is essential for Republican control of the Senate agenda, or renounce any hope of Republican cooperation. Schumer had to capitulate because he lost two Democratic senators, Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, who vowed to keep the filibuster, perhaps in the vain hope that it would promote bipartisanship.
McConnell also knows that bipartisanship in a polarized Senate is not merely fantasy; it is a hallucination. Bipartisanship helps the majority, not the minority. The majority leader doesn’t allow bills to reach the floor that will split his own caucus. If Republicans help Democrats to pass the Covid relief bill, its success will be attributed to Biden and the Democrats. If the bill fails, by the time the election rolls around, the public will be primed to remember the Democratic failure, not the Republican responsibility for it.
There is a workaround for the filibuster, but only for bills that address fiscal issues. They can be passed with reconciliation, which requires only a simple majority. Assuming no Democrats defect, the Covid relief bill could be passed with VP Harris’s tie-breaking vote. But other initiatives, like those related to climate change or immigration or civil rights, that might pass with a majority, will fall on the 60-vote threshold. The filibuster ensures that they can no longer pass, even with a majority in the House and Senate, the president’s signature and no danger from judicial challenge.
Initially, I was floored by McConnell’s diatribe against Trump delivered minutes after he voted to acquit Trump on a technicality. A little later I realized that McConnell, apart from playing to both sides, was actually taking another step toward his goal of restoring the Republican majority and his leadership of the Senate with it. Some commentators have observed that McConnell was trying to appease his corporate donors who closed their purses after the Jan. 6 insurrection and coax them back into the fold. Republicans need money for their campaigns; they win back their seats and McConnell consolidates his power.
The choice for Schumer and the Democrats is clear: eliminate (or modify) the filibuster or get very little done in the 19 months left before failure guarantees defeat in the midterms.
Note: It is well worth listening to Ezra Klein’s conversation with Adam Jentleson about these matters in his podcast, The Ezra Klein Show.
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