The possibility that Democrats might win the presidency and the Senate in the next election, and then actually pass some laws, is concerning enough to Mitch McConnell that the Senate majority leader is trying to talk them out of it. McConnell has an op-ed in the New York Times, a venue selected to speak to Democratic Party elites, urging them not to eliminate the Senate’s legislative filibuster.
McConnell would obviously love to have the power to stymie the next Democratic agenda. Why, though, would Democrats allow McConnell to do this to them, when it lies within their power to change the Senate rules? McConnell offers several contrived explanations.
First, he says Senate Democrats made a mistake by eliminating the filibuster on judges in 2013. Here he is recycling a familiar taunt. Under the Bush administration, Senate Republicans made clear that they would not permit Democrats to filibuster judicial nominations except in the most rare circumstances. Then, under the Obama administration, McConnell undertook a complete blockade of several judicial vacancies. Democrats carried out the rule change Republicans had threatened under the previous administration, eliminating the judicial filibuster and filling the slots. When Republicans regained the Senate, McConnell reimposed the blockade. He has since used his majority powers to fill the vacancies he created.
McConnell’s argument is that Democrats allowed him to appoint all of these judges. “This is the legacy of the procedural avalanche Democrats set off: Justice Neil Gorsuch, Justice Brett Kavanaugh and 43 new lifetime circuit judges — the most ever at this point in a presidency,” he gloats. But if Democrats had allowed McConnell to maintain his blockade under Obama, there would have been even more judicial vacancies for McConnell to fill. And the idea that Democrats would have the power to block the vacancies is silly.
Second, McConnell piously insists that he is somehow abnegating his own power as majority leader by preserving the legislative filibuster. “I recognize it may seem odd that a Senate majority leader opposes a proposal to increase his own power,” he suggests modestly. But what is McConnell actually sacrificing by keeping the legislative filibuster? Since Democrats control the House, nothing, since he can’t pass any laws without bipartisan support anyway. Even before Democrats won the House, Republicans simply didn’t have much of a policy agenda they wanted to pass. The filibuster didn’t stop them from passing the health-care law they wanted — they just had no plan that could do what they promised.
The things McConnell wants to do, like appointing judges and cutting taxes, can be done with 50 votes. The things he doesn’t want to do — enacting new social reforms — need 60 votes.
Cleverly, he warns that eliminating the filibuster will open the door to “the far left” and “socialist policies.” But a prospective Democratic majority is not going to pass socialist bills. The 50th Senator is going to be a red-state moderate like Joe Manchin or Kyrsten Sinema, not Bernie Sanders. McConnell is playing off the Democratic moderate fear of its left wing, but the left will not be anywhere close to exercising the decisive vote. The question is whether McConnell will have the power to block even the modest incremental reforms Democrats want to pass.
Finally, and most gallingly, McConnell appeals to the Constitution as a source of legitimacy for the filibuster. No, he admits, the Constitution does not actually create a filibuster. Still, he argues, the filibuster “echoes James Madison’s explanation in Federalist 62 that the Senate is designed not to rubber-stamp House bills but to act as an ‘additional impediment’ and ‘complicated check’ on ‘improper acts of legislation.’”
It’s true that the framers deliberately created a system with multiple veto points. Enacting new laws requires a majority to simultaneously control the House, the Senate, and the presidency. That is already a high barrier to passing laws. Why should there be another, even higher barrier? McConnell doesn’t give any answer, except to reason that if barriers to passing laws are good, then even higher barriers must be better.
But the fact is that the Constitution specifically designates certain things that require a supermajority — treaties, constitutional amendments, impeachment — and does not include legislation, a fact that implies that a legislative supermajority requirement is contrary to the framers’ intent. And even the framers somehow intended for the Senate to have a supermajority, and forget to mention that anywhere, what possible logic is there to the status quo? Why allow a judge with supreme powers of judicial review to be given a lifetime appointment by a majority, while requiring a supermajority to pass basic bills like keeping the federal government open? Nobody would ever design a system like that.
McConnell’s attempt to wrap himself in fastidious constitutional principle may appeal to the vanity of Senate Democrats. But anybody who has witnessed his performance in the Trump era can see what a sick joke this is. This is a man who at the moment is blocking every bill to protect the elections from foreign attack, even bipartisan bills that experts warn are desperately needed. He is willing to risk exposing his own country to a potential systemic meltdown, which is what would occur if hackers manage to throw enough votes into question to change the outcome. And he’s doing it because he understands that the hackers are probably going to be helping his own party.
And now his insurance policy against the possibility that he loses anyway is to persuade Democrats to allow him to veto anything they want to do. And he’s wrapping this appeal in the language of principle. The thing about being Mitch McConnell is, your total lack of public morality may be highly effective, but the cost is that you give up the ability to claim that you’re acting on principle.