the national interest

Mitch McConnell’s Not-Very-Threatening Filibuster Threat

U.S. Senate Minority Leader Sen. Mitch McConnell (R-KY) listens during a news briefing after the weekly Senate Republican Policy Luncheon December 11, 2012 on Capitol Hill in Washington, DC. McConnell discussed various topics with the media including the fiscal cliff issue saying
Fear the turtle? Photo: Alex Wong/Getty Images

Harry Reid has been threatening to change the Senate rules on nominations, so that a minority of senators can’t prevent a president from filling vacancies in the judiciary or his own administration. Today Mitch McConnell responded with a threat of his own: If Reid does that, whenever McConnell gets the majority, he’ll change the rules to allow a straight majority rule on everything.

McConnell’s counter-threat is meant to cow Democratic Senators, a handful of whom have shied away from changing the Senate’s rules for fear of just this scenario taking place. What’s prompted the talk of a rule change is that Senate Republicans under Obama have used the filibuster not only with dramatically increased frequency but also in dramatically innovative new ways. In the past, the Senate confirmed the president’s executive branch nominees except in cases of scandal or wild incompetence. Senate Republicans have, in some cases, pelted nominees with a thousand written questions or refused to confirm any nominee at all unless Obama agreed to change the laws the agencies are supposed to carry out.

On judges, Republicans had threatened to eliminate the filibuster for judicial nominees under Bush, until Democrats agreed never to filibuster a judicial nominee except under “extraordinary circumstances.” Now Republicans have taken to filibustering Obama’s nominees under the most ordinary circumstances, having blocked Caitlin Halligan because she represented her state in a gun lawsuit as Attorney General, and are now threatening to block any nominees at all for the D.C. Circuit Court.

McConnell’s counter-threat is notable for a couple reasons. First, he is not promising to respond in kind to Reid, but to escalate. Reid is threatening to impose majority rule for executive branch and judicial nominations. If McConnell replied that such a rule change would prevent Democrats from blocking a future Republican president from staffing his agencies or filling judicial vacancies, they’d yawn.

Second the frightening specifics of McConnell’s threat turn out to be … not very frightening:

The minority leader sketched out what a Republican-led Senate would do with 51 votes. Job No. 1, he said, would be to repeal Obamacare. He also mentioned lifting the ban on oil drilling in the Arctic National Wildlife Refuge, approving the Keystone XL pipeline and repealing the estate tax (which he called the “death tax”).

Ooh, he’d repeal Obamacare with just 51 Senate votes! Except McConnell was already planning to do that anyway! His plan was to repeal Obamacare through budget reconciliation, a method that only requires 51 votes. He admitted it a few months ago:

The Kentucky Republican called a handful of top aides into his office and told them, “Figure out how to repeal this through reconciliation. I want to do this.” McConnell ordered a repeal plan ready in the event the GOP took back control of the Senate in November…

By Election Day, Senate Republicans were ready to, as McConnell put it, “take this monstrosity down.”

We were prepared to do that had we had the votes to do it after the election.

That’s your No. 1 threat? “If you change the rules, I’ll do exactly what I told everybody I was planning to do anyway”?

McConnell’s other threats are to abolish the inheritance tax — they already passed that with only 51 votes in 2001 — and allow drilling in ANWR. Which, okay, sure — that sounds like a bad idea, but if the argument to Democrats is, let the Republican minority effectively repeal large swaths of environmental, financial, and health-care laws and prevent Obama from nominating anybody to numerous court seats, or else risk the increased chance that one day a small piece of national parkland will be opened to drilling. How long do I get to mull over this choice?

Now, to be sure, a majority-rule Senate would surely benefit Republicans someday in ways McConnell isn’t delineating. That’s fine. If one party wins a majority of the House, the Senate, and the presidency, it should be able to pass laws. The system was not designed to give the minority a veto. Three elected bodies with staggered terms is a lot of veto points.

McConnell is trying to scare Democrats into preserving an arrangement that effectively gives his party more power. Democratic Senators could decide to keep the rules in place and respond in kind — say, holding up President Rubio’s nominees for key positions unless Rubio agrees to tighten up emission standards, crack down on Wall Street, and make it easier for unions to organize. That would be the mirror image of what Senate Republicans are doing. But there’s zero evidence that Senate Democrats (perhaps owing to their much greater need to hold unfriendly ground in the red-state-tilted Senate) have the internal party discipline to deploy those kinds of hardball tactics. They’re being asked to preserve minority powers that are used against them but that they’ll never use. It’s a really easy choice.

McConnell’s Not-Very-Threatening Threat