democratic impasse.com

January 6 is going to leave a scar. For two hundred and twenty years one of the most beautiful things about America has been our peaceful transfer of power.

But what Americans saw three weeks ago was ugly: shameful mob violence to disrupt a constitutionally-mandated meeting of the Congress to affirm that peaceful transfer of power. It happened because the President lied to you. He lied about the election results for sixty days. Despite losing sixty straight court challenges, many of them handed down by wonderful Trump-appointed judges. He lied by saying that the Vice President could just violate his constitutional oath and declare a new winner. That wasn’t true.

He then riled a mob that attacked the Capitol – many chanting, “Hang Pence.” If that president were a Democrat, we both know how you’d respond. But, because he has Republican behind his name, you’re defending him.

Something has definitely changed over the last for years, but it’s not me.

Personality cults aren’t conservative. Conspiracy theories aren’t conservative. Lying that an election has been stolen is not conservative. Acting like politics is a religion – it isn’t conservative. -- Senator Ben Sasse, Message to Nebraska Republican Party State Central Committee

I don't find much to dispute in the Nebraska senator's statement. Either his Republican critics subscribe to alternate facts, or they value loyalty to Donald Trump more highly than any appeals Sasse makes either to conservative values or to traditions that serve as democracy's guardrails. 

Sasse's vision is not at this moment in the Grand Old Party a popular view, at least one not often expressed openly. This is:

And when I tell you Republican voters support him still, the party is his. It doesn't belong to anybody else. -- Representative Marjorie Taylor Greene on Donald Trump

Is the Republican Party a personality cult, embracing conspiracy theories and the lie that the 2020 election was stolen, and above all else exhibiting obeisance to a revered leader? Based on the ascendancy of Marjorie Taylor Greene, her defenders, and her reticent enablers in the party, the answer is, Yes, on all counts.

Certainly few Republican leaders in Washington are willing to say aloud what Sasse has said. Since they fear repudiation by Trump-Republicans (as Sasse is experiencing and Liz Cheney and Adam Kinzinger), their messages are feeble or inconsistent, if they speak out at all. Most hide behind silence or words that, while failing to articulate the lies, do not refute them.

That's the tact Mitch McConnell has taken. He refrained until December 15 from contradicting Trump's big lie that he had won the election in a landslide, abruptly changing course as the then-president's unflagging disinformation campaign threatened the reelection of two Georgia Republicans. Since then, McConnell has found occasion to push back against the view that the GOP is still Trump's and "doesn't belong to anybody else."

On February 1, the Minority Leader criticized MTG's "loony lies and conspiracy theories" as a "cancer for the Republican Party." Bill Kristol noted: "Classic McConnell—at once true and disingenuous, a clever way to please donors while paying no price, avoids taking on Trump but tough on a first-termer. But most amusing is that it’s such a knifing of McCarthy." McConnell, scurrying to get behind 44 other GOP Senators, had already cast a vote against moving forward with impeachment.

Meanwhile, Kevin McCarthy embraced the big lie more wholeheartedly than McConnell; voted with 137 other GOP Congressman to overturn the election; said, "The President bears responsibility for Wednesday’s attack on Congress by mob rioters"; took it back, after a pilgrimage to Mar-a-Lago; and declined to sanction Marjorie Taylor Greene for her nutty conspiracy theories, racist and anti-Semitic videos, and allusions of violent retribution against political opponents.

The Republican Party has confronted extremism before, as Ronald Brownstein reminds us, after the John Birch Society -- founded and led by Robert Welch -- had become embedded in the party in the early '60s. William F. Buckley regarded Welch's views as a threat to the conservative movement.

Compared with the Birch era, thinkers on the right are doing “less policing of the borders” between conservatism and extremism, as Bill Kristol, the longtime conservative political strategist, put it succinctly. Buckley’s successors at National Review have condemned QAnon and Greene (even if they’ve blunted that message by relentlessly insisting that conservatives are being unfairly persecuted for their views, as Kabaservice notes). Right-leaning anti-Trump outlets such as The Bulwark have been unequivocal. But the most powerful voices on the right—Fox News and talk-radio hosts—have done backflips to avoid disowning Greene and other radical voices. Tucker Carlson has suggested that criticism of QAnon’s bizarre beliefs represents a step toward “tyranny … and dictatorship.”

Of course, the biggest difference between now and the Birch era is that today’s far-right extremists are operating under an umbrella of protection from a former president who remains the most popular figure to the GOP’s base.

The GOP continues to be in thrall to Donald Trump. The most powerful voices in the party are all-in with radical figures and noxious fables. This political extremism, which continues to thrive in the Republican Party, poses a threat to democracy.

Political parties and their leaders have a special role to play in safeguarding democratic institutions.

Potential demagogues exist in all democracies, and occasionally, one or more of them strike a public chord. But in some democracies, political leaders heed the warning signs and take steps to ensure that authoritarians remain on the fringes, far from the centers of power. When faced with the rise of extremists or demagogues, they make a concerted effort to isolate and defeat them. Although mass responses to extremist appeals matter, what matters more is whether political elites, and especially parties, serve as filters. Put simply, political parties are democracy’s gatekeepers.  -- Steven Levitsky and Daniel Ziblatt, How Democracies Die

After the chaos and corruption of the past five years, the sixty days of POTUS's big lie following the election, and the January 6 assault on the Capitol, the leaders of the Republican Party continue to defer to Donald Trump. Their path of least resistance is to evade the truth and suppress all better angels, rather than to take a principled stand for democracy.

A concluding observation from How Democracies Die:

Isolating popular extremists requires political courage. But when fear, opportunism, or miscalculation leads established parties to bring extremists into the mainstream, democracy is imperiled.

The Republican Party is awash in fear, opportunism, and miscalculation, whereas, political courage is virtually always in short supply (in any party at any time). It is not the coin of the political realm.

Ben Sasse, Liz Cheney, Adam Kinzinger, and a number of other Republicans have rejected the authoritarian turn their party has taken. Instead of drifting away with a whimper, they have taken a stand for our democratic institutions.

These commitments, while representing small steps in a long, uncertain journey, are commendable. They also bring a welcome unity of purpose to Democrats, Republicans, and independents willing to defend democracy.

“Republicans understand you don’t destroy the Senate for fleeting advantage.” So saith Mitch McConnell while defending the filibuster in remarks on the Senate floor on January 26, 2021.

But then, to “make this a little more tangible,” the minority leader presents a nightmarish vision of a dystopian Senate that constitutes a ruthless threat: McConnell will destroy the Senate in retaliation for a decision by the Democratic majority to change a rule. He (and the Republican minority) will bring the Senate to a grinding halt, creating unprecedented gridlock, and will blame the Democrats for the chaos Republicans inflict on the Senate.

If the Democratic majority were to attack the filibuster, they would guarantee themselves immediate chaos, especially in this 50-50 Senate. This body operates every day, every hour, by consent. And destroying the filibuster would drain comity and consent from this body to a degree that would be unparalleled in living memory.

The threat, if Democrats dare end the filibuster, is barely veiled:

"Taking that plunge would not be some progressive dream. It would be a nightmare. I guarantee it."

The setup for McConnell’s remarks is the unique situation of an evenly divided Senate. The Kentucky senator, a master of the rules, observes that the majority in a 50-50 Senate (presided over by a tie-breaking vice president) is enfeebled relative to a majority composed of at least 51 senators. The difference between 50 and 51+ senators lends credibility to McConnell’s threat.  

The Constitution requires the Senate to have a quorum to do any business. Right now, a quorum is 51. And the Vice President does not count to establish a quorum. The majority cannot even produce a quorum on their own and one could be demanded by any senator at almost any time.

Our committees need quorums to function as well and will also be evenly split. If this majority went scorched-earth, this body would grind to a halt like we’ve never seen. Technically it takes collegiality and consent for the majority to keep acting as the majority at any time they do not physically, physically, have a majority.

In a scorched-earth, post-nuclear Senate that’s 50-50, like we have today, every Senate Democrat and the Vice President could essentially just block-out the next two years on their calendar. They’d have to be here all the time.

It takes unanimous consent to schedule most votes. To schedule speeches. To convene before noon. To schedule many hearings and markups. As Democrats just spent four years reminding us, it takes consent to confirm even the lowest-level nominees at anything beyond a snail’s pace.

None of us have ever seen a Senate where every single thing either happens in the hardest possible way or not at all. Heck, Mr. President, once or twice every day, the Majority Leader reads through an entire paragraph of routine requests. Objections could turn each one into multiple, lengthy roll-call votes.

None of us on either side want to live in a scorched-earth Senate. The institution and the American people deserve a lot better. But there is no doubt -- none -- that’s what we’d see if Democrats tear up this pivotal rule." 

In the final paragraph McConnell poses as someone taking the high road. No one wants “to live in a scorched-earth Senate,” but in blaming Democrats, he effaces his role in this nightmarish scenario.

McConnell has sketched the picture of a legislative body malevolently stripped of its capacity to engage in deliberation. In his telling, a vote by the majority to change a rule would create this dysfunctional chaos, but of course that’s not true. Blaming the Democrats is a rhetorical sleight of hand. It would be McConnell’s (and minority Republicans’) retaliation that created the promised chaos that McConnell insists would “destroy the Senate.”

Incessant demands, for instance, to confirm the presence of a quorum. Refusal to consent to simple, but essential procedural steps. Multiply these and other obstructionist tactics, each day, day after day -- directed by the vengeful Republican minority -- and the Senate would “grind to a halt like we’ve never seen.”  That this would inevitably follow a rule change makes sense only if McConnell is committed to taking vengeance. He is. Of the nightmare to come, he declares: “I guarantee it.”

McConnell’s Legacy as Majority Leader

Mitch McConnell has distinguished himself as both majority leader and minority leader. He has boasted of his historical accomplishments as majority leader (as he did in October after confirmation of Amy Coney Barrett):

“I certainly didn’t expect to have three Supreme Court justices,” Mr. McConnell said in an interview on Tuesday as he savored an accomplishment he said had placed him in the top tier of Senate leaders in history. “At the risk of tooting my own horn, look at the majority leaders since L.B.J. and find another one who was able to do something as consequential as this.”

He is right, of course. But it is a legacy of brutal partisanship, certainly inconsistent with his remarks this week: “The Senate exists to require deliberation and cooperation”; “the Senate exists to produce broad agreements on controversial issues that become laws most of us have voted for and that a diverse country will accept”; the references to “comity,” “collegiality,” “guardrails,” a commitment “to respect the framers’ design and the Senate’s structure”; and finally, his invocation that “we have a higher calling than endless partisan escalation. We place our trust in the institution itself in a common desire to do the right thing.”

What has distinguished Majority Leader Mitch McConnell is his willingness (sometimes expressed gleefully) to trample democratic norms. It is his determination to violate the spirit of parliamentary rules to score partisan victories. He has boasted of his legislative stratagems focused on winning the next election cycle, not on doing the right thing, or enacting legislation to make Americans’ lives better, or living up to any of the remarks (in the paragraph above) extolling a higher calling than partisanship. He is committed to winning at all costs.

McConnell’s Legacy as Minority Leader

As minority leader McConnell is widely regarded as a supremely accomplished obstructionist. Traditionally the filibuster has been used on rare occasions to express intense opposition. McConnell escalated its use to uncontroversial proposals and nominees, in many cases where there was virtually no opposition at all – simply to gum up the works. As Norman Ornstein has observed, McConnell escalated use of the filibuster so it became “a pure tactic of obstruction.”

By making the filibuster routine, along with other delaying tactics permitted by Senate rules, McConnell sandbagged the Democratic majority. The obstacle course he created limited the majority’s ability to generate any achievements that could be touted in the next election cycle. This strategy, in other words, sought to ensure that “every single thing either happens in the hardest possible way or not at all.”

McConnell’s brazen threat this week suggests that “the hardest possible way” -- for a master of the rules willing to wreak havoc -- would become even harder in a 50-50 Senate.

I regard this threat as credible. McConnell is savvy enough to back down (when changing circumstances dictate a strategic retreat) and willing to go back on his word (with a tale that revises history, when presented with an irresistible partisan advantage). But the man is not known for bluffs or bluster. I assume he is prepared to deliver on his threat (if, when the occasion arises, he believes it will serve his interests). He won’t hesitate to bring down the hammer to score a win.

What has distinguished Minority Leader Mitch McConnell is his willingness to trample democratic norms; to violate the spirit of parliamentary rules; to focus on the next election, not the public interest; to enshrine partisanship as his north star. McConnell is committed to winning at all costs.

Trashing the democratic norm of forbearance

The Kentucky senator’s repeated appeals -- which continue nearly 34 years after the fact -- of the defeat of Ronald Reagan’s nominee, Robert Bork, to the Supreme Court suggests a source of his insight regarding the trampling of democratic norms. Democrats, in the eyes of Republicans, violated a governing norm by pulling out all the stops to block the Bork nomination. Less partisan observers agree with this assessment. The battle was noteworthy in 1987; it diverged from the general pattern for nominations to the federal bench. It was arguably a violation of governing norms.

McConnell would appear to have learned a lesson from this episode: If Democrats can violate a governing norm on one occasion, then Republicans are free henceforth to violate governing norms at every opportunity when circumstances suggest they will gain a partisan advantage in doing so.

Note that Democrats, in the majority, did not filibuster the Bork nomination; they held hearings, reported the nomination out of committee, and defeated it by a vote of 42 in favor (including two Democrats) and 58 opposed (including six Republicans). Reagan followed up by nominating Anthony Kennedy, who was confirmed 97-0. McConnell, of course, has taken defiance of norms well beyond anything Ted Kennedy ever considered. The Republican leader is especially proud of his innovative theft of a Supreme Court nomination: "... I thought the decision I made not to fill the Supreme Court vacancy when Justice Scalia died was the most consequential decision I’ve made in my entire public career."

McConnell’s legacy is found in his pattern and practice of violating one of the two basic norms, identified by political scientists Steven Levitsky and Daniel Ziblatt in their 2017 book, How Democracies Die, as essential for democracy: institutional forbearance. In their words (from a 2020 article):

Forbearance means refraining from exercising one’s legal right. It is an act of deliberate self-restraint—an underutilization of power that is legally available to us. Forbearance is essential to democracy.

. . .

Forbearance—politicians’ shared commitment to exercise their institutional prerogatives with restraint—is what prevents democracies from descending into a destructive spiral of constitutional hardball.

Mitch McConnell has distinguished himself as a champion serial violator of forbearance. Whenever he believes that crashing through institutional restraints will yield a partisan advantage, he will do so. For that, he will be remembered by history. And, regarding that distinction, he will always be linked with Donald Trump.

Monday, commenting on Mitch McConnell's demand that Chuck Schumer pledge not to end the filibuster, I suggested that "the filibuster appears highly vulnerable and, in my view, isn’t likely to survive unscathed in the near term." Why not? Because the stakes are so high for Joe Biden and Congressional Democrats that they can't afford to let McConnell -- the master of obstruction -- stand in the way of Biden's agenda.

Now McConnell has relented (or caved or thrown in the towel, depending on the source), but in any case, has relinquished the gavel without getting Schumer's pledge. But did McConnell really lose anything? He relented only after two Democratic senators (Joe Manchin and Kyrsten Sinema), having watched the standoff for the better part of a week, reiterated their categorical opposition to ending the filibuster. So, while the minority leader is no longer blocking an organizing resolution, he did expose in real time a divided Democratic caucus.

Even more concerning for Democrats with ambitious goals -- such as passing Biden's $1.9 billion relief package, the first in a long list of priorities that Republicans are unlikely to favor -- at least one of those Democrats has his eyes on a smaller package and is intent on compromising with Republicans to reach an agreement.

“I’ll guarantee you I can sit down with my Republican friends and find a pathway forward,” said Sen. Joe Manchin (D-W.Va.), who said it was “horrible” how Republicans evaded the filibuster to try and pass their agenda on tax cuts and health care when they held the majority. “Let me try first.”

Horrible? He's referring to a procedure that preserved the filibuster. Budget reconciliation is an established exception to the rule, not a partisan escalation. The West Virginia senator may be signaling his disfavor of the fallback plan that many Democrats have anticipated relying on, if (as expected) McConnell insists on 60-votes to move legislation, and the Senate majority can’t muster 51 votes to abolish the filibuster altogether.

Most Democrats recall with frustration the protracted negotiations on ACA (when Max Baucus was convinced he could find a pathway forward to gain Republican votes). McConnell, convinced that the longer negotiations dragged on, the less popular the bill would become, encouraged Chuck Grassley to keep talking with Democrats (while the Iowa senator made no commitment to support the legislation). The result? A bill based on a Republican plan and watered down to draw GOP support, yet failing to gain a single Republican 'Yea.' Not, McConnell boasted, a single GOP fingerprint.

Democrats, intent on making a mark while they have both the White House and extraordinarily narrow majorities in Congress, see the filibuster as McConnell's key tool in obstructing their agenda. The new president faces multiple crises. His success and Democrats' success in 2022 and 2024 depend on delivering on his agenda.

Moreover, as Greg Sargent notes,

successful McConnell obstruction would also continue undermining faith in democracy itself, making voters susceptible to another Trumpist demagogue.

In this telling, Democrats are now operating from the premise that hopes for restored faith in our democratic system —  hopes for the defeat of Trump and the capture of the Senate by popular majorities leading to genuine civic renewal —  rest less on achieving bipartisan cooperation for its own sake, and more on the scale of the program that Democrats deliver upon.

Democrats are the party of government. Republicans win when faith in government declines. McConnell and the GOP are masters of gridlock, capable of ensuring dysfunction while stoking frustration and anger -- and blaming the other side. Aside from a tax cut that benefited corporations and the wealthiest Americans, four years of a Republican White House produced few significant legislative accomplishments and virtually nothing that tangibly touched the lives of regular folks (including the Trump-Republican base).

The GOP relinquished the House majority in 2018, and the White House and Senate majority in 2020. McConnell's foremost goal is to watch Democrats fail in 2022 and 2024. We have every reason to expect him to employ the filibuster to that end.

McConnell has seen changes in Senate rules (by the majority) and practices (by the minority) as control of each house of Congress and of the White House have shifted over time. He has seldom been caught flatfooted. The minority leader hardly seems chastised by Democrats’ threat to nuke the filibuster in 2021. I suggest that Senator McConnell's ability to paralyze the Senate during much of Biden’s first week in office, after Democrats won a tenuous majority in the chamber, served as an object lesson for Democrats, not in any sense a defeat for Republicans. After watching McConnell 'cave' as Senators Manchin and Sinema weighed in, I find it less likely, not more, that Democrats will succeed in killing the filibuster.

Note: McConnell's remarks in agreeing to an organizing resolution offer further evidence of these conclusions. His statement to the Senate, which includes a remarkable threat, also illustrates the erosion of governing norms that weaken our democracy. This will be the subject of another post.

Mitch McConnell wants Chuck Schumer’s commitment to preserve the filibuster before he will permit the Senate to reorganize with the new Democratic majority.

“Republicans very much appreciate the consistency and the rock-solid fidelity to the norms and rules that make the Senate a moderating force in policymaking,” said Scott Jennings, a former McConnell aide. “The legislative filibuster is the last rule driving bipartisanship in Washington.”

Jennings, a savvy political-operative-turned-commentator, who knows McConnell well, also knows well that the Minority Leader hasn’t the least interest in driving bipartisanship. (Never mind the ridiculous appeal to “the rock-solid fidelity to the norms and rules that make the Senate a moderating force in policymaking,” which have hardly been of interest to McConnell or the GOP.) During the Obama presidency, a key to McConnell’s scorched-earth obstructionism was snuffing out every vestige of bipartisanship:

“We worked very hard to keep our fingerprints off of these proposals,” McConnell says. “Because we thought—correctly, I think—that the only way the American people would know that a great debate was going on was if the measures were not bipartisan. When you hang the ‘bipartisan’ tag on something, the perception is that differences have been worked out, and there’s a broad agreement that that’s the way forward.”

McConnell is driven to win, to beat his opponents at all costs, not to overcome differences or find common ground, as shown after Obama’s election in 2008: “The single most important thing we want to achieve is for President Obama to be a one-term presidentOpens in a new window.”

We have every reason to believe that McConnell is equally driven to ensure that a Democratic White House will not survive past the 2024 election. Democrats recall with anger McConnell’s history: both his prodigious use of the filibuster as Minority Leader, and later (as Majority Leader) his willingness to change Senate rules when it advantaged Republicans. Doyle McManus observes: "That history is what McConnell wants to repeat in the Biden era: politics as guerrilla warfare, battling the majority to an impasse."

For more than half a century, the filibuster served primarily to preserve Jim Crow. We can credit Mitch McConnell, after his elevation to Minority Leader in 2006, with employing the tool for unprecedented obstruction across the board. As Norman Ornstein noted:

In 2007, with a new Democratic majority in Congress for the final two years of the Bush presidency, it was Republican filibusters that stymied Democrats trying to send legislation to Bush that he would be forced to veto. And with Barack Obama’s presidency, Republican filibusters or threats of filibuster escalated in ways the Senate had never seen before. The rule had not changed, but the norms were blown up. Filibusters were used not simply to block legislation or occasional nominations, but routinely, even on matters and nominations that were entirely uncontroversial and ultimately passed unanimously or near-unanimously. The idea of a filibuster as the expression of a minority that felt so intensely that it would pull out all the stops to try to block something pushed by the majority went by the boards. This was a pure tactic of obstruction, trying to use up as much of the Senate’s most precious commodity—time—as possible to screw up the majority’s agenda.

The filibuster served, in 2007, to protect George W. Bush from vetoing popular bills pushed by the Democrats. In the future, it might serve to protect vulnerable Democratic incumbents in the Senate, such as Joe Manchin, from taking unpopular votes. So, it would be politically handy from time to time (for one party or the other, depending on the circumstances) to have this tool at their disposal. Eliminate it, and they’ve lost that tool.

I don’t have a crystal ball. I don’t know how things will play out. But the stakes are so high now for the new president and the tenuous Democratic majorities in both chambers, that they can’t let McConnell stand in the way of Biden’s agenda — and that most likely means a change in the rules.

Short of eliminating the filibuster altogether, Democrats might, for instance, limit the scope of the filibuster, or stretch the use of the Byrd Rule. But the filibuster appears highly vulnerable and, in my view, isn’t likely to survive unscathed in the near term.

(Barring something out of the blue, that is, such as a Democratic senator switching parties. After the events of the past year, who knows what else might appear out of the blue?)