The Republicans Are Solely Responsible For Political Dysfunction
The GOP decided if they couldn't govern the country, no one else should
Democrats are grappling with the reality that their one-in-a-generation chance at governing the country will soon come to an end, with very little to show for it. Sure, they passed the greatest investment bill in the economy since the New Deal, helped get 200 million plus people vaccinated for COVID and managed to end a quagmire of a war in Afghanistan – and helped Ukraine neuter the Russian threat in Eastern Europe, at least for the time being, but Democrats had been prepared for more. Going into the 2020 election, with the Trump Administration and the Republican Party in shambles thanks to COVID and civil unrest, it was taken, prematurely, at face value the Democrats would win a landslide in 2020 that would give them perhaps an unprecedented chance at enacting a transformative agenda, even if Joe Biden wasn’t the one progressives wanted to deliver it.
18 months later, much of the Democratic Party’s legislative agenda has collapsed, a victim of the filibuster, a 60-vote threshold required to pass legislation in the Senate. Democrats either need 10 Republicans to agree to pass a piece of legislation, an impossible feat, or they attempt to go around the filibuster via reconciliation.
Reconciliation is a process in which certain budget-related items can be put together into one bill and passed with 50 votes in order to keep the government funded and operational. Only one such bill is allowed per calendar year. Democrats used it in 2021 to pass COVID aid, and they hoped to use it in 2022 to pass the Build Back Better Act, but failed to secure Sen. Joe Manchin’s (D-West Virginia) vote, leaving them short.
So why didn’t it work? Well, in part because the Build Back Better Act is a hodgepodge of Democratic agenda items from childcare to education to environmental policies thrown together because each item would otherwise be filibustered if considered separately. It made the bill ridiculously expensive and complicated to understand, and thus easy for a moderate in a Trump state like Manchin to kill. It also made the government seem completely dysfunctional. Why was this bloated mess of legislation even necessary anyway? Why not just do all these things separately?
Well that, and frankly every single issue with the government functioning today, can be traced directly to Mitch McConnell's 2009 decision to deny unanimous consent to every single motion before the Senate. That decision single handily kept the Obama administration from being far more transformative.
When the dust settled after the 2008 Election, what was left was the biggest Democratic landslide since the post-Watergate era. Democrats had no only won the presidency and saw their House majority grow, but they picked up eight U.S. Senate seats outright, building their majority to 58-41 with one seat, Minnesota, still in doubt. Democrat Al Franken would end up winning the seat after several recounts. The Democrats were well beyond the number of seats they would need to pass most of their agenda with 50 votes, even with more moderate and conservative members of the party voting “no.” With Franken – and it was pretty much accepted Franken would emerge victorious in the end – Democrats could spare nine votes and still pass legislation in the Senate. It would be too easy for Democrats to pass legislation like a carbon tax, or an overhaul of healthcare, pro-labor legislation like card check and rollback of Bush-era economic policies.
The possibility that the Obama Administration would actually be transformative was terrifying for Republicans. They were at a generational nadir. The GOP had lost longtime red states like Indiana and Virginia, states Democrats had not won since 1964. Republicans were only 25 years out from Reagan’s 49-state landslide. Even 1990s-era blue states like California, Minnesota and New Jersey seemed winnable for Republicans, they were now completely off the map. There was only one way back to power – the Democrats HAD to fail.
The filibuster had long been an obscure Senate rule that only made its appearance during either extremely controversial and transformative legislative fights, like Civil Rights; obscure legislation where Senators wanted to make a show of their opposition toward, such as when former Senator Wayne Morse of Oregon filibustered a bill about oil leases; or for controversial presidential appointments, such as the appointment of Samuel Alito to the U.S. Supreme Court. At no point before 2008 were they commonplace.
That is until Senate Minority Leader Mitch McConnell figured out in 2009 that there was nothing in the Senate rules that stopped his party from filibustering every single piece of legislation and nomination that came before the body.
Traditionally we think of a filibuster as a Senator taking to the floor of the Senate and talking, about anything he or she wants, until a bill dies or is changed to his liking. We think of it in terms of Mr. Smith Goes to Washington or in Allen Drury’s Advise And Consent, perhaps for a more modern examples, the “Stackhouse Filibuster” in a 2001 episode of The West Wing or Sen. Mellie Grant, played by Bellamy Young, holding her bladder for 12 hours to stop an abortion law in a 2016 episode of Scandal. What a filibuster is actually is simply opposing unanimous consent to proceed to a final vote. According to Senate rules, all Senators present must agree to end debate and move to a final vote – as opposed to the House where there are time limits to debate – and if one Senator, just one, doesn’t agree, 60 votes are needed to end debate. Often this isn’t an issue. If just one Senator opposes ending debate (I’m looking at you Rand Paul), the other 99 vote to end it. But if 41 Senators back one Senator’s opposition to end debate, then the filibuster is upheld and the legislation is essentially dead. Since 2009, McConnell’s strategy has been to keep at least 41 Republican, if not the whole caucus, together on those votes as he or one of the members of the caucus oppose the motion to end debate.
The U.S. Senate is an esteem elite club that often doesn’t have hard rules because Senators are expected to act with respect for the institution. That means you don’t abuse privileges, or engage in political gamesmanship with the rules. No one had ever expected a Senate leader to do something as audacious as McConnell. The Senate was never designed for the type of naked raw cynical politics the Republicans have brought to the body in the last 15 years.
The Republicans defended their need to escalate by blaming Democrats for killing the 1986 nomination of Robert Bork and nearly killing the 1991 nomination of Clarence Thomas to the Supreme Court, and for filibustering the Supreme Court nominees of George W. Bush, though both were ultimately confirmed. Democrats, in their view, already started the gamesmanship, they were just fighting on their turf. That argument, however, doesn’t hold water. Though Bork was defeated, the Senate’s role is to confirm OR reject a presidential nominee. The first Supreme Court justice rejected by the Senate was appointed by George Washington, our first president. The Senate rejecting a judicial appointee is not a new thing. Further, though Bush’s nominees were filibusters, a bipartisan coalition, including many Democrats, defeated those filibusters, allowing confirmations to go forward by simple majority vote.
In reality, the post-Civil Rights years of Reagan landslides and Southern Democrats and Gingrich’s Contract With America gave Republicans the idea that they were the natural governing coalition of the country. Even today, you very often hear conservatives suggest that liberals control academia, journalism and culture, so all conservatives have is the government. This sense of entitlement is what gave McConnell the feeling that he no longer had any reason to respect the integrity of the Senate. The institution was marred by the very election of a Democratic majority. Occurring concurrently with the election of the first Black president, something many conservative-leaning Americans felt “tarred” and “ruined” the country – these are things I heard people say after Obama’s election, I didn’t invent them – Republicans felt the Senate comity had to be broken, if not for the good of their party, then for the good of the country.
And so McConnell decided Democrats would need a 60-vote threshold to get any legislation or nomination through the body. Just like that, the Democratic majority became in name only. Once Franken was declared the winner in Minnesota and took his seat, something that did not happen until July 2009, Democrats would only have 59 Senators to Republicans’ 41.
The victorious party did get a reprieve for a short time when Arlen Specter, the longtime Republican Senator from Pennsylvania, announced he would switch parties, giving them 60 needed votes, but that was disrupted by the death of Sen. Ted Kennedy of Massachusetts and the loss of his seat to Republican Scott Brown in a January 2010 special election. All in all, Democrats had a 60-vote majority for about six months.
It was in that time that Obamacare passed, but a much slimmed down bill that didn’t include the public option, a high priority for the Democratic base, thanks to the opposition to it by several Democratic senators. Had only 50 votes been needed to pass the Affordable Care Act, it is likely the public option would have made it through.
At the time, many progressives felt McConnell’s decision to break the Senate would backfire on his party. A number of 2010 Senate candidates, like Jennifer Brunner of Ohio, Robin Carnahan of Missouri, Joe Sestak of Pennsylvania and Paul Hodes of New Hampshire, all states Obama won, ran against McConnell’s “obstruction” in their campaigns. All lost.
Republicans swept back into power in the 2010 midterm elections, a victory that was perfectly timed with redistricting, a process Republicans controlled in most key states now. The GOP took their 2010 victory, their largest win since the 1920s, as a sign that their obstructionist ways not only worked, but was sanctioned by the American people; so they took it further.
In several swing states like Wisconsin, Michigan and North Carolina, they redrew district lines to make it impossible for Democrats to win a majority even if they win more votes. Republicans were able to hold Congress for the rest of the decade, and further won the presidency in 2016 with Donald Trump running, in part, a cynically populist campaign against government disfunction.
In the minority under the Trump administration, Democrats had no choice but to employ the McConnell “filibuster everything” tactics, but Democrats did make at some attempts to work with Trump. In 2018, Senate Democratic leader Chuck Schumer offered to drop Democratic opposition to funding a border wall if Trump would agree to a version of the DREAM Act. Further, Democrats worked with Trump on some aspects fo criminal justice reform, rather than cynically obstructing any progress. That move may have backfired somewhat on Democrats, giving Trump enough credibility in communities of color that he increased his margin with them in 2020 over 2016.
Complicit in all this is the national media, who at no time in 2009 and 2010 asked why Republicans were suddenly filibustering every legislation and nomination before the Senate and why
The 60-vote threshold is treated as how its always been rather than how one political party on the ropes decided it had to be in their cynical quest for power. The tactic acceptance to this new normal has led many casual observers of politics to believe that the 60-vote threshold is how the Senate has always worked and therefore exists for genuine reasons. After all, we wouldn’t have gotten this far as a nation with it if it were bad? It also leads casual observers to think those who want to get rid of it, those who seek to “abolish the filibuster” are trying to break a sacred institution rather than repair an already broken one.
The Senate is already an undemocratic institution that is way more powerful that it should be. Other democracies have undemocratic upper houses in their bicameral legislature, but they are far less powerful and typically non capable of killing legislation that has popular support and strong support in the democratic legislative body.
Weakening the power of the Senate will not break it. It will not take away the rights and representation of the States, which the body was designed to protect. Simply returning it to the pre-2009 status quo would be enough.
First though, we must recognise what that status quo was, and who was responsible for destroying it.