“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.
