Government, Bound: The Silence of the Senate

Where legislation goes to die.

November 17, 2019

Senate Majority Leader Mitch McConnell doesn’t mind being called the “Grim Reaper.” In fact, it’s a nickname he gave to himself when assuring supporters that he intended to block a variety of proposals by Democrats, ranging from the Green New Deal to Medicare for All. In fact, you can purchase a Grim Reaper t-shirt for $35 on his campaign website.

McConnell has drawn blame for blocking all kinds of legislation, including bills to improve election security, stop foreign interference in our elections, and mandate universal background checks for gun purchases (that last one has support from 90 percent of Americans, including 89 percent of Republicans). Back in 2016, he infamously refused to hold confirmation hearings on President Obama’s Supreme Court pick, Merrick Garland.

How is it possible that one person can wield so much power, ensuring that absolutely any bill he or she opposes is dead on arrival? In reality, it’s only possible because enough other senators allow it.

There’s nothing in the Constitution – or even in formal Senate rules – giving the Senate Majority Leader so much power over the legislative process. Any senator can propose that a bill receive a vote, and if that senator can round up a simple majority to agree, they can make it happen. Senate custom, however, is that senators – from both parties – yield their power to the majority leader.

According to James Wallner, a former Republican Senate staffer, this practice began in the 1940s and went into hyperdrive under “Master of the Senate” Lyndon Johnson. In a 2018 interview with David Leonhardt of The New York Times, Wallner explained why the practice lives on:

Senators have kept up the practice because it helps keep their party unified, rather than enduring votes that divide it. But this centralization of Senate power has an enormous downside. It makes bipartisan compromise harder to achieve. Coalitions that could pass a bill — but that don’t include the majority leader — don’t get the chance to form. As Wallner says, the practice makes our political system less freewheeling and open. “By stopping the legislative process before it starts,” he told me, “it makes compromise harder.”

That last part is critical. By putting party above all else, our senators are making it impossible to find common ground on some of the biggest issues facing Americans today. There’s less discussion about specific bills and fewer opportunities for senators to hash out a deal.

The current Senate has 53 Republican members, 45 Democratic members, and two independent members who generally vote with the Democrats. Based on those numbers, it would seem that Republicans would have little difficulty pushing through their agenda.

As it turns out, however, a procedural rule of the Senate offers some protection to the minority party. The filibuster allows a minority of senators to block the vote on a bill or a presidential appointment. Breaking a filibuster on a bill requires a vote of sixty senators. A minority of just 41 senators therefore can bring the Senate to a halt. So, even with 53 senators, a Republican Senate needs some Democratic votes to pass a bill. (Breaking a filibuster on approval of presidential appointments, including Supreme Court Justices, used to require sixty votes as well, but now requires only a simple majority vote.)

It’s worth considering what the Senate could look like without party power at the helm. In the British Parliament, for example, the Speaker of the House of Commons (roughly the equivalent of our House of Representatives) is a non-partisan position. In fact, once elected, the rules dictate that the Speaker resign from his party and enforce the rules in an impartial way.

What does this look like in practice? When the Speaker of the House of Commons is called on to break a tie, for example, custom dictates that he or she vote “no,” the idea being that the non-partisan Speaker should not enable legislation to pass if it doesn’t have a genuine majority. In the U.S., the vice president has the power to break a tie in the Senate, and can usually be counted on to vote with his party. Vice President Mike Pence is a frequent tiebreaker, as was John Adams back in the late 1700s.

It’s also worth considering what Congress could accomplish if Mitch McConnell cast himself in a role other than the Grim Reaper, or if other senators started pushing back. If the Senate began operating in a different way, with bills reaching the floor for debate, compromise, and a possible vote, some might actually pass into law. As James Wallner noted, however, stopping the legislative process before it can even start makes any kind of progress impossible.

The authors of the Constitution warned against the dangers of “factionalism.” They believed in the benefits of opposition and designed a system of checks and balances to channel it for the common good. The idea that one senator, based on nothing more than party affiliation, could turn the Senate into a legislative graveyard would have been as alien to them as restoring the monarchy.

 

Learn More:

Fix the Gridlock: Leaders from across the political spectrum weigh in on breaking the gridlock in Congress, from coalition-building to national ballot initiatives – via Politico

McConnell’s Journey: One reporter spends months reporting on powerful Senate Majority Leader Mitch McConnell, and says that while voters may think they know him, he’s a complicated figure – via NPR

The Senate Graveyard: Democratic House Speaker Nancy Pelosi sent a letter to her colleagues in the House that listed legislation her chamber had passed but which hadn’t seen the light of day in the Senate – via The Hill

Abolish the Filibuster: Former Senate Majority Leader Harry Reid argues that senators are abusing the filibuster and we should kill it if we want to pass meaningful legislation – via The New York Times

Master of the Senate: Want to really understand how the Senate works? No one tells it better than Robert Caro, who wrote about Lyndon Johnson’s tremendous power as Senate Majority Leader. It’s 1,232 pages so we recommend heading straight to the audiobook – via Audible

Congress: Rules, Customs, and History: How many votes does it take to stop a filibuster? What is the Hastert Rule? Test your knowledge with our quiz – via Common Ground Solutions

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This article originally appeared in the November 17, 2019 issue of Wide Angle, our regular newsletter designed, we hope, to inform rather than inflame. Each edition brings you original articles by Common Ground Solutions, a quiz, and a round-up of news items — from across the political spectrum — that we think are worth reading. We make a special effort to cover good work being done to bridge political divides, and to offer constructive information on ways our readers can engage in the political process and make a difference on issues that matter to them.

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