Why Mitch McConnell Didn’t Kill the Filibuster
Mitch McConnell has spent a lifetime manipulating Senate rules for partisan advantage. But now, with his favorite tool for obstruction under unprecedented attack, he would like you to know he’s a man of principle.
“My colleagues and I have refused to kill the Senate for instant gratification,” McConnell proclaimed, during a recent speech defending the legislative filibuster. “In 2017 and 2018 I was lobbied to do exactly what Democrats want to do now. A sitting president leaned on me to do it. I said no.”
McConnell playing the committed institutionalist is what scholars of political rhetoric refer to as “complete horseshit.” But when it comes to his facts, rather than his tone, he’s not wrong. The last time the GOP had full control of government, President Trump urged McConnell to end the filibuster and allow bills to pass with a simple majority vote. He refused.
But McConnell’s choice has nothing to do with principle. The reason he didn’t end the filibuster is that he could pass the bulk of his agenda without it.
There are currently three ways to bypass the 60-vote threshold for legislation in the Senate—and all three of them are far more useful to conservatives than to progressives. The first is to attach a legislative priority into a larger “must-pass bill,” such as a continuing resolution to keep the government running. This works reasonably well if you want to make small, unambitious tweaks to existing law without disrupting the status quo. It also allows Senators to deliver federal aid and funding to their home states—when Kentucky’s agriculture commissioner wanted to legalize hemp, for example, Mitch McConnell tucked a provision allowing research on the crop into the 2014 Farm Bill.
But precisely because must-pass bills are must-pass, it’s very hard for Senators to use them as a vehicle for sweeping change—and sweeping change is often what Democrats are fighting for. Provisions that fundamentally maintain the status quo have a reasonable chance of piggybacking their way to the president’s desk. But provisions that carry even a whiff of controversy, such as demilitarizing law enforcement, reforming our immigration system, or ending the gun-show loophole, are too risky to include in must-pass legislation. In other words, the first major route around the legislative filibuster—the must-pass bill—is available to some conservative priorities and almost no progressive ones.
The second way to bypass the filibuster—the loophole known as “budget reconciliation”—strongly favors conservative priorities as well. And although Democrats just used reconciliation to pass Joe Biden’s $1.9 trillion COVID relief bill with a simple majority vote, it’s far more attractive to McConnell than to his opponents.
Budget reconciliation began in the 1970s as a narrow, efficiency-minded administrative procedure, but by the 1980s it had expanded into a kind of senatorial hall pass. Once per year, the upper chamber can ignore the filibuster and advance a bill with a majority vote. But this bill must follow a strict set of rules. It must deal directly with taxes, spending, or the debt ceiling. It can’t touch Social Security. It can add to the deficit for a few years, but not indefinitely.
As it happens, the Republican Party’s top priorities—shrinking government and cutting taxes for rich people—pass the reconciliation test. The GOP used reconciliation to slash spending under Reagan. They used it to lower top-bracket tax rates under George W. Bush. In the Trump era, Republican senators came within a single vote of using reconciliation to repeal Obamacare; when that failed, they used it to pass Trump’s $2 trillion tax cut instead.
Democrats’ top priorities, on the other hand, aren’t allowed under the reconciliation rules. From fighting climate change to banning assault weapons to expanding voting rights, the most ambitious elements of the Biden agenda can’t be passed with reconciliation alone.
This is especially damaging for Democrats because Republicans, with their gerrymandered districts, now control so many state governments. In the absence of new federal law, the country will move rightward even though most Americans don’t want it to.
There’s another way for McConnell to advance his agenda that didn’t require passing legislation at all: packing the courts. In fact, legislating from the bench is far more politically savvy for Republicans than legislating from Congress, because so much of their agenda is unpopular. Rather than, say, strike down environmental regulations, voting rights, or abortion rights directly, it’s far easier to confirm judges who never have to worry about re-election, and who can do the dirty work for them.
This last point casts McConnell’s moment of seeming restraint in a new light. True, he didn’t end the 60-vote requirement for legislation. But he did end the 60-vote requirement to confirm Supreme Court Justices. In other words, the last time the filibuster presented a serious obstacle to the GOP agenda, Mitch McConnell killed the filibuster and got things done.
Which is just one reason to suspect that McConnell will eliminate the legislative filibuster the next time the GOP has full control of government, regardless of what Democrats do today. While the party of Reagan placed tax cuts above all else, the party of Trump is more interested in culture wars and voter suppression. In Republican-controlled states, the top legislative priorities are currently preventing likely Democrats from casting ballots and preventing transgender athletes from playing women’s sports. If Republicans reclaim government in 2022 and want to take those priorities nationwide, they won’t be able to do so via reconciliation or judicial activism.
It may soon be conservative activists, rather than progressive ones, demanding that their Senate allies value results more than procedure. And if recent history is any guide, it suggests Republican Senators will do exactly that.
After hundreds of years of debating and reforming the filibuster, we’ve reached the endgame. Mitch McConnell can posture and grandstand all he likes, but the United States Senate is going to become a majority-rules body. The only big question remaining is who will be in charge when it does. And with only one of our two parties committed to fair elections and a functioning system of government, the answer, for our democracy, may be a matter of life and death.
David Litt is a former Obama speechwriter and author of “Thanks, Obama: My Hopey Changey White House Years.” He is currently a head writer at Funny or Die.