You wouldn’t know it by looking at him, but Senate Republican Leader Mitch McConnell is panicking, and with good reason. After years of tolerating his abuse of the filibuster, Democrats are finally moving to put an end to the legislative strategy on which the 79-year-old Kentuckian has built his political career.
After months of resisting fellow Democrats who want to end or reform the filibuster, a procedure which forces the Senate to have at least 60 votes to conduct business, West Virginia Democratic Sen. Joe Manchin has begun moving in the direction of reform. He seems to be following a similar trajectory to President Joe Biden who opposed changes to the legislative blockading method for years, until finally realizing that McConnell and his co-partisans have been using the filibuster to hold America hostage.
“It’s getting to the point where democracy is having a hard time functioning,” Biden said in a March 16 interview with ABC’s George Stephanopoulos in which he endorsed proposals that would force senators to speak continuously in order to conduct a filibuster.
The idea, which has also been endorsed by Manchin, would be a return to the original practice of the “talking filibuster” which held up all chamber business and required recalcitrant senators to hold the floor of the Senate. Since 1975, the Senate has allowed “virtual filibusters” which permit members to stymie motions without having to speak actively against them.
The result has been a drastic decline in the upper chamber’s productivity compared to the U.S. House, where a filibuster does not exist. It’s exactly what McConnell has wanted, however; he’s even boastfully referred to himself as the “Grim Reaper,” referencing his intent to wield the filibuster to kill any bills he opposes. As to which bills those will be, he left no doubt. In May, he proclaimed that “100 percent of my focus is on stopping this new administration.”
The dutiful propagandists at Fox News Channel, who once joined then-president Donald Trump in calling for the elimination of the filibuster, are now telling viewers that America will end if it’s reformed. In March, Ainsley Earhardt, a co-host of “Fox and Friends,” warned her viewers in dire terms: “If they end the filibuster, Democrats will rule our country forever. We will become a socialist country. […] The country’s gone, it’s a free-for-all if this happens.”
It isn’t surprising that McConnell and the GOP would seek to preserve the Senate minority’s most useful parliamentary tool. Democrats used the filibuster frequently when they were in the minority while Republicans controlled both congressional chambers. But it’s notable that McConnell also refused to eliminate the filibuster when his own party controlled Congress and the White House. There are several reasons why.
The first is that the issues which McConnell cares about most are not subject to the filibuster. Under current Senate rules, the filibuster cannot be used on fiscal matters (through a loophole called budget reconciliation); judicial and executive nominations; international trade agreements; and repeals of executive orders under the Congressional Review Act, (a heretofore rarely used law which became one of the most significant tools that Republicans used to overturn actions taken by former president Barack Obama).
McConnell’s hand has also been strengthened by the filibuster because it has served as a check on far-right senators pushing legislation that would be popular at Tea Party meetings, but would be politically disastrous for Republicans as a whole. For many years, polling has consistently shown that the public is not interested in cutting federal spending and actually wants to increase it in the areas of education, infrastructure, health care, environmental protection, and veterans benefits. Understanding the implications of these poll numbers, McConnell has used the threat of the filibuster against radical co-partisans in a way that House Republican leaders can only envy.
The one time where McConnell did use budget reconciliation to push an unpopular bill, the 2017 attempt to repeal the Affordable Care Act, the GOP was saved from electoral ruin by negative votes from Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), and John McCain (Ariz.).
In short, while the filibuster prevents Republicans from significantly slashing the budget or further rolling back the social safety net, it also stops Democrats from expanding the welfare state or voting rights. This dynamic is inherently conservative, preserving, for instance, the United States’ infamous distinction as the only industrialized nation without universal health coverage. It has also been the main barrier to passage for important bills dealing with environmental protections and LGBT equality.
Since the failed 2017 Republican attempt to repeal Obamacare, opposition to repealing the law has only declined. Only 20 percent of adults surveyed in December by the Kaiser Family Foundation agreed with the far-right view that the ACA should be entirely scuttled.
Faced with such anemic numbers, the GOP never again tried to repeal the healthcare law, relying instead on hopes that legions of conservative judges will find a way to invalidate a law that the public supports.
Under McConnell’s aegis, judicial activism has become the preferred method of achieving right-wing policy goals, not just because they can invalidate popular proposals on legal technicalities but also because judges’ lifetime appointments give them the impunity to gut social programs or curtail civil rights without facing the wrath of voters.
While the Supreme Court has, thus far, refused to completely strike down the Affordable Care Act, it substantially curbed its reach by blocking the law’s state Medicaid expansion requirements. Even the most recent SCOTUS decision, technically in favor of the ACA, isn’t exactly a full-throated defense of it. Crucially, the conservative justices on the court have also paved the way for the scores of voter suppression bills that Republicans in numerous states are pushing after the 2020 election by invalidating federal oversight of election regulations and limiting access to the ballot.
McConnell, who has been in the Senate since 1985, seems to have realized that Americans won’t tolerate right-wing attempts to roll back the welfare state, but they will ignore Republicans slowly asphyxiating it through inaction, cynicism, and judicial fiat.
It is no coincidence that public trust in the federal government has never exceeded the levels it once reached since McConnell became the top Senate Republican in 2007. The wily Kentuckian’s mastery of parliamentary procedure to skew government rightward has ensured his place as the longest-serving leader in history of a party that has been repeatedly fractured by internal dissent everywhere except the congressional upper chamber.
The one problem with McConnell’s strategy of suffocating legislation in the Senate is that the larger contours of it cannot be discussed publicly. When your entire method of operating is to get the public not to notice what you’re doing, you can’t even let your activist base in on the plan. That’s why despite decades of blocking scores of progressive bills, appointments, and policies, McConnell has remained a despised figure among far-right activists.
During my former life as a conservative activist, I observed numerous meetings in which politicians like then-senator Jim DeMint and current Rep. Louie Gohmert (R-Texas) would rail endlessly about how moderate squishes like McConnell and the filibuster were all that stood in the way of not just drowning government in the bathtub but throwing it into the wood chipper. They had no idea that the he was using them in a triangulation strategy of portraying his staunch conservative views as an essential component in a bipartisan consensus that would always exclude progressives.
McConnell nearly gave the game away to Fox News Channel viewers in a March 24 interview in which he repeatedly called the filibuster “the essence of the Senate” and said that it “keeps America in the political center.”
“They’re going hard-left, they misread the election,” McConnell warned co-host Bill Hemmer. “It’s a 50-50 Senate and a very narrow Democratic majority in the House. Not a mandate to turn America into Bernie Sanders’s view of what America ought to be.” (Never mind that Republicans have not represented a majority of voters in Senate elections since 1996.)
Despite McConnell’s pretense that the filibuster keeps policy stable, however, his historic abuse of the procedure has been the ultimate destabilizing factor in American politics.
Not only has it made the federal government unable to address critical policy issues, it has also been the primary factor in keeping the Republican Party drifting further and further to the right. That’s because in a healthy political environment, parties advocating unpopular policies that somehow get elected pay significant political consequences if they try to enact them. This is the reason why conservative parties in other nations similar to the U.S. are not constantly trying to roll back universal health care and various worker protections.
Even the vehemently anti-government Margaret Thatcher, who spent more than a decade as the U.K. prime minister tearing down state-owned enterprises, had to explicitly promise that she would not eliminate the country’s National Health Service in order to win election. She kept that promise.
In the United States though, the filibuster has made it so that far-right politicians can get elected and stay in office for decades because their unpopular policies are never passed. As a result, instead of learning that voters don’t support their ideas and being forced to move toward the center, Republican voters have become increasingly radicalized by the fact that their legislators fail to make the conservative paradise of their dreams a reality.
For more than a decade, new GOP politicians have run for office vowing to slash the budget only to be prevented from doing so by McConnell’s strategy of deliberate Senate inaction. This has generated an enormous amount of anger in the GOP electorate, not just among the anti-government minority but also among the majority of Republican voters who have centrist or even liberal economic views. Tapping into that anger, which also existed among some Democratic voters and disaffected non-voters, was the key to Donald Trump’s primary and general election wins in 2016. The former game show host’s sales pitch of repeatedly praising single-payer health care, railing against hedge fund billionaires, and promising to raise taxes was effective.
As we all know, Trump promptly abandoned most of the centrist things he said as a candidate and went along with the anti-government agenda set up for him by the House GOP. To distract from this, he doubled down on conspiracies and bigoted rhetoric as a means of getting supporters to focus on cultural complaints like Confederate memorials instead of the fact that he had adopted an entirely different political program from the one he talked about during his campaign. Many once “Never Trump” right-wing media figures noticed the switch, however, and have been firmly in his camp ever since.
“The biggest surprise about Trump is that he has turned out to govern as a conservative, even more than Reagan did,” historian Steven Hayward told the New Yorker’s Nicholas Lemann. “And he doesn’t know Friedrich Hayek from Salma Hayek. He sold out—to us!”
That Trump was able to work so well with GOP congressional leaders is no surprise. Long before he incited a violent mob to invade the Capitol in an attempt to force Congress to overthrow the 2020 presidential election, Republican elites, led by McConnell, had already been working to make democracy obsolete. Trump and McConnell have vastly different means, but their goal is the same: to make democracy completely dysfunctional and distribute wealth upward.
It’s ironic that American conservatism was founded on the idea of stopping “judicial activists” from making policies contrary to the public will, because since the end of the Cold War, the GOP has operated on doing the very same. That Trump sought to motivate a mob to violently overthrow a free and fair election that didn’t go his way isn’t vastly different from what the U.S. right wing had already been doing for decades.
The pace with which Republicans seem to be moving to restrict American democracy has drastically increased since Trump’s eviction from the White House, however, and not only in the areas of electioneering over which the ex-president obsesses.
State-level Republicans also seem to have decided that democracy is overrated. On March 25, Republicans on the Missouri House Budget Committee refused to allocate funds for a Medicaid expansion that voters had passed in a referendum with a 53 percent majority.
“Even though my constituents voted for this lie, I am going to protect them from this lie,” State Rep. Justin Hill said in a floor debate. “I am proud to stand against the will of the people who were lied to.”
Just days earlier, the same committee held a hearing in which the GOP chair, Cody Smith, touted a bill that would not only block an initiative passed by 62 percent of voters to gradually increase the minimum wage to $12 per hour, but also roll back Missouri’s hourly minimum from $10.30 to the current federal floor of $7.25. Smith later relented on lowering the wage and said he would settle for postponing the increases until 2026.
Republicans in other states have made similar moves to overturn the will of voters. Missouri Republicans’ Medicaid action was an echo of an earlier law passed by Utah Republicans to override a 2018 Medicaid expansion and of former Maine governor Paul LePage’s defiant insistence that he would “go to jail” rather than increase healthcare spending that voters had mandated in a 2017 initiative. And of course most recently, Biden’s victory in the 2020 presidential election and Trump’s cavalcade of lies about it has inspired a wave of laws making it more difficult to vote in states like Georgia, Pennsylvania, Arizona, Iowa, South Carolina, and Florida.The effort by Republicans in Arizona to pay conspiracy theorists to run a ballot examination in Maricopa County in the hopes of casting doubt on the Grand Canyon State’s Electoral College votes has been closely observed by far-right conservatives in other states Trump lost. GOP legislators in Georgia, Texas, and elsewhere are pushing laws to allow state lawmakers or judges to simply invalidate vote counts that they dislike, making it possible for Republican-controlled states to send GOP delegations to the Electoral College in 2024, even if their voters chose a Democrat.
Despite the very serious prospect that far-right Republicans are building the machinery to steal the next presidential election in plain sight, not everyone opposed to their agenda seems to realize the gravity of the situation. Arizona Democratic Sen. Kyrsten Sinema is the biggest case in point. On Tuesday, she published a lengthy column in the Washington Post arguing that while the filibuster made legislating more difficult, it ensured “lasting results” because it necessitates bipartisan cooperation.
There is some truth to Sinema’s assertion that bipartisan bills are not often overturned but, as documented earlier in this essay, it is also the case that the filibuster has given conservatives the effective balance of power in the U.S. Senate. Americans do not have a healthcare guarantee because of GOP abuse of the filibuster. Anti-discrimination bills that would protect bisexual people like Sinema have also not become law because of the filibuster. It should also be remembered that reactionary Republicans have been trying for decades to roll back Social Security, Medicare, and Medicaid, all programs which were enacted on a bipartisan basis. And as the Obamacare experience showed, the filibuster provides no protection to these programs. The unpopularity of right-wing dogma has been enough.
In her essay, Sinema also claims that “the filibuster compels moderation and helps protect the country from wild swings between opposing policy poles.” This could not be further from the truth. As noted above, the filibuster is the primary legislative reason that the Republican Party is the most extreme right-wing party among major world nations. Partisan gerrymandering is a significant factor as well, but here, too, the filibuster is preventing electoral reformers from eliminating it.
Elsewhere in her essay, the Arizona senator warns that while filibuster restrictions are making it harder to pass federal voting protections, the procedure makes it harder for Republicans to pass their own party-line election regulations. She writes:
“To those who want to eliminate the legislative filibuster to pass the For the People Act (voting-rights legislation I support and have co-sponsored), I would ask: Would it be good for our country if we did, only to see that legislation rescinded a few years from now and replaced by a nationwide voter-ID law or restrictions on voting by mail in federal elections, over the objections of the minority?”
The incompleteness of Sinema’s question is its own answer: these hypothetical Republican voting restrictions have already become reality in a number of GOP-dominated states, and furthermore, most of these laws have passed on purely party-line votes since almost no states allow a legislative filibuster. National-level Democrats could move to protect the affected citizens and ensure a consistent national standard if they follow their state-level Republican rivals and refuse to be constrained by filibusters
Mitch McConnell has seen to it that the filibuster cannot be used to obstruct his beloved tax cuts, repeals of progressive executive orders, and the appointment of judicial ideologues. Keeping it in place allows him to not only to stymie Democratic priorities, it also allows far-right Republicans to evade voter anger by agitating for extremist laws they know will never pass. It’s undoubtable that as the filibuster became more common, Republicans began lurching to the extreme right.
If Kyrsten Sinema truly wants to attain bipartisan compromises, she should work overtime to eliminate or restrict the filibuster and give the few moderate Republicans who remain an ability to cross over and support Democratic legislation instead of being held hostage by their far-right flank. Moderate Democrats could presumably do the same and voters would have a clearer picture of what their Senators of either party are truly doing.
Reforming the filibuster won’t just save American democracy from the GOP’s radical 2024 plans, it will give Republican moderates the freedom they need to begin pushing back against the far-right.