Note 9. Professional Partisan
McConnell and Partisan Gridlock in the Senate
Party leaders, more than most other members of Congress, have been professional legislators. By “professional”—or even “a legislator’s legislator”—observers have long meant someone who makes things happen, works out the difficult compromises, and keeps the institution running. This did not mean ignoring partisan interests, but it did mean recognizing limits to partisanship, taking the lead in finding pragmatic and negotiated outcomes rather than moving to radical parliamentary strategies, showing some diplomatic skills in working with the other party, and blending partisan and institutional interests gracefully. Among senators of recent decades, Democrats Bob Byrd (D-WV) and George Mitchell (D-ME) and Republicans Howard Baker (R-TN) and Bob Dole (KS) were described this way.
When he was rising in Republican ranks in the 1990s, Republican leader Mitch McConnell’s (R-KY) appeared to be a professional legislator, too. At the same time, his conservatism deepened and eventually McConnell slid from a professional legislator to a professional partisan. Something changed—McConnell, his party, or both. I favor “both”—but cause and effect are difficult to sort out. I use this essay to make a few observations about McConnell’s years as Republican leader, the longest serving Republican leader.
Ambition
Before McConnell was elected Republican floor leader in late 2006, he was known as a state-oriented senator with a strong ambition to be party leader. He also was recognized as a “Washington insider,” “behind-the-scenes operator,” and parliamentary expert. He gained such a reputation for years of service on the Appropriations Committee, chairman of the Committee on Rules and Administration, and four years as whip. McConnell was known as a dealmaker and as a guardian of Kentucky interests on Appropriations rather than as a leading conservative. He took pride in being a coauthor of bipartisan legislation on election reform and of controversial legislation that allowed the Food and Drug Administration to regulate tobacco products in exchange for federal buyouts of tobacco farmers. For many years, McConnell referred to Henry Clay, the Great Compromiser, as his model senator.[i] Nevertheless, he was always more-or-less in line with his party and became particularly well known for championing opposition to restrictions on campaign fundraising, for which he always received rave reviews among movement conservatives. He combined conservatism, partisanship, and pragmatism in a way that was fairly typical of a senator seeking a leadership post.
McConnell became leader in 2006 with a little bit of luck. The floor leader’s job was an ambition for McConnell from the day he entered the Senate 22 years earlier. In an interview with me in 2018, he recalled sitting in the rear corner of the Republican side of the Senate chamber during his first year in the Senate at a time when Byrd and Dole were the parties’ floor leaders and thinking that he could do their jobs. It is no exaggeration to say that McConnell made every major move within his party’s organization—working to fight campaign finance reform during his service on the Rules and Administration committee, taking the chairmanship of the party campaign committee, gaining the whip’s job—with the hope that he would eventually be positioned to become floor leader.
However much he wanted to be Republican floor leader, McConnell temporarily gave up much hope of doing so when Bill Frist (R-TN) became leader in 2003. Frist was elected leader at only 55 years of age. Frist had promised Tennesseans that he would serve only two terms in the Senate, but few observers believed he would abide by the commitment once he was elected leader. Frist had presidential ambitions, though, and may have believed that it was better to work on his presidential plans for 2008 without the burden of Senate leadership duties. Still, his announcement in 2006 that he would not run for reelection to the Senate that year surprised most observers. McConnell was whip when Frist made his announcement and, having a reputation for service to his party colleagues, hard work, and parliamentary skills, readily won the top post. In time, he became the longest serving Republican leader.
My view, shared by many others, is that McConnell loves being leader and the power that comes with the post. He attempts to lead his party and often does effectively. However, if his party appears to be moving in a certain direction—on policy or political strategy—he quickly repositions himself to stay with his colleagues and appear to be out in front on the issue. This desire to be leader—and to retain the confidence of his party colleagues—drives his behavior. As partisan polarization—and partisanship—have intensified since his election as leader, McConnell’s behavior became more extreme, his interest in bipartisanship dwindled, and his rhetoric about Democrats turned harsher.
The Context
Among the many people who dislike McConnell (mostly Democrats), there is a natural tendency to attribute what is wrong with the Senate to McConnell. His personality, drive for power, deep partisanship, political skills—whatever—are largely to blame for the sharply polarized parties and gridlock that characterize the Senate, it is said. If McConnell chose to lead differently, the Senate could function more effectively. The extreme version of this account was that all that Congress needs to reduce partisanship and get the legislative process back on track is to put better people in leadership positions.
In the view of most scholars of congressional politics, this is an incorrect interpretation. Instead, important features of party politics more broadly and drive the strategies of Senate floor leaders. In fact, many of the relevant developments occurred during McConnell’s years in the Senate—he arrived in 1985. I reviewed these forces in our politics in another Note, but three developments of the McConnell years particularly important:
Elections put into office legislators with policy preferences that were more and more polarized, with the Republicans moving more to the right than Democrats moved to the left.
Inter-party competition for control of the Senate intensified and shifted party leaders’ priorities from legislating to public relations.
Senators, particularly conservative Republicans, chose to more fully exploit parliamentary procedure to pursue their legislative objectives.
The result has been a transformation in the role of congressional party leaders, including Senate leaders. Since early in the 20th century, Senate floor leaders have managed their party organizations, devised floor strategy, built floor coalitions to win votes, served as intermediaries with the president, and acted as the leading spokespersons for their parties. After the New Deal Congresses of the 1930s and until the 1980s, Senate floor leaders took a backseat to committee chairs as the designers of major legislation and builders of majority coalitions. Known as the “era of committee chairman” and as the “textbook Congress,” most policy initiative and responsibility for finding votes rested with committee chairs who managed nearly all important legislation. Party leaders served those chairs by arranging floor consideration for their bills and assisting chairs when requested, but leaders took the lead on only a few issues, usually those most important to a party’s reputation, and had tiny whip organizations that often went unused.
It is different today. With the changing expectations of the party colleagues, floor leaders have become the chief strategists and agenda setters for the Senate. More than at any time since floor leadership in the early New Deal Congresses of the 1930s, party strategy drives the floor agenda and the minority response, floor leaders devise the legislative strategy and implement it, and those top leaders assume responsibility to sell the party’s policy positions and parliamentary moves to the general public. Committee chairs take a backseat to the floor leaders.
The emphasis on the importance of context in explaining this transformation on the broader political context is justified by the evidence, but I am not ready to dismiss the importance of a leader who so conspicuously chooses to fan the flames of partisanship as McConnell has done. Beyond managing the policy differences between the two Senate parties, McConnell has pursued consequential strategies that have made the partisanship of Senate policy making more intense and pervasive.
McConnell and the 60-Vote Senate
For McConnell, the fit to his party was never a problem. He was slightly to the conservative side of his party and followed the conservative shift of his party (Figure 9-1). Over time, this shift made McConnell considerably more conservative than his mentor, Senator John Sherman Cooper (R-KY), for whom McConnell was an intern while in college. His positioning is what we would expect from a senator who had his sights set on top leadership positions. (As majority leader 2015-2020, McConnell often switched his vote away from his party to be eligible to make a motion to reconsider a vote that his party did not carry, often a cloture vote, which should not be read as McConnell siding with Democrats.)
Feeling quite at home leading his party, McConnell made minority obstruction the norm for most legislation. While minority obstruction had become commonplace by the time McConnell became minority leader in 2007, he made obstruction a nearly standard operating principle. McConnell adopted the view that the Senate ran with 60 votes, the number required for cloture, and claimed that was the Senate’s traditional standard. This was not true—historically, Senate minorities filibustered sparingly and few cloture votes were cast, as Figure 9-2 reflects—but McConnell was making it true.
One immediate result is that the majority leader at the time, Harry Reid (D-NV), sought cloture about twice as often to get action on legislation than had been common in the previous two decades (blue line in Figure 9-2). To get some idea of how frequent that is, it involved about one cloture vote related to legislation (setting aside nominations) for every four days of Senate session in 2007-2008. As McConnell intended, refusal to allow the Senate to move forward on a measure without invoking cloture had a cumulative effect—the majority party Democrats struggled to set the floor agenda and accomplished less. Even when cloture could be invoked, the cloture procedure consumed valuable floor time.
Reid and the Democrats responded in other ways, but their moves could not overcome dedicated obstruction from McConnell, who was usually backed by almost all Republicans on cloture votes. That did have the effect of changing the nature of Senate floor deliberations. Three of them are worth brief mention.
First, the majority leader simply sought to reduce the number of opportunities for minority filibusters. In the case of appropriations bills, this meant packaging the bills into omnibus measures or simply gaining agreement on continuing resolutions (CRs) that merely extended last year’s funding without change (see Figure 7-2 in Note 7). In some cases, the majority leader simply would not bring a bill to the floor on which a filibuster seemed inevitable. The end of an annual session of Congress then would involve a crush of activity. The effect was to reduce opportunities for senators to offer and debate amendments on important issues, which generated complaints about the demise of “regular order” (see Note 10). It also meant negotiating clean bills behind the scenes with House leadership, when possible, and having both houses act on them, thereby avoiding a conference and related cloture votes.
Second, the majority leader “filled the amendment tree” with greater frequency. The term refers to offering a set of first- and second-degree amendments so that no other amendments may be offered until the Senate disposes of one or more of those amendments. The majority leader’s right to be recognized to make a motion before other senators are recognized creates an opportunity for the leader to fill the tree, thereby preventing other amendments from being offered.
Like the filibuster, filling the tree was rare until recent decades. It is done by the majority leader, or sometimes by a bill manager, to freeze action on amendments. At a minimum, filling the tree temporarily prevents the consideration of amendments, which often includes minority senators’ amendments that the majority party wants to avoid. The majority leader reasons that minority amendments should not be considered until the minority agrees that the bill will receive a vote. In most Congresses since early 2007, the number of times the amendment tree has been filled has been over 20—ten times the number typical of Congresses in the 1980s and 1990s. Filling the amendment tree limits the subjects coming to a vote and the opportunities for senators to participate meaningfully in the policy-making process.
Third, when floor amendments are considered, they are more likely to be considered under unanimous consent agreements that require 60 votes for an amendment to be adopted. In 2007, for example, McConnell insisted that a Democratic senator’s amendment to a defense authorization bill be allowed only if Democrats agreed that 60 votes would be required to pass it:
What we have frequently done is simply negotiated an agreement to have the 60 votes we know we are going to have anyway, and the reason for that is—well, there are several reasons. No. 1, if a cloture vote were invoked, it would further delay consideration of the bill because potentially 30 more hours could be used post cloture on an amendment. So what we have done, in a rational response to the nature of the Senate in this era, is to negotiate 60-vote votes… We are perfectly happy to enter into an agreement, as I suggested yesterday, for a vote on the Webb amendment and the alternative that we would have, the Graham amendment, by consent, two 60-vote requirements. That is not unusual in the Senate; it is just common practice in the Senate, certainly for as long as I have been here.[1]
McConnell was greatly exaggerating how customary 60-vote thresholds had become in unanimous consent agreements by that time, as Reid was quick to observe: “It appears to me we are arriving at a point where, even on the Defense authorization bill, amendments leading up to a final vote on the Defense authorization bill, which is so important, are going to be filibustered. It is really wrong. It is too bad. We don’t have to have this 60-vote margin on everything we do. That is some recent rule that has just come up in the minds of the minority.”[2] But, as cloture and 60 votes became the standard requirement for getting a vote on a bill, it became commonplace to require 60 votes for an amendment as a condition for considering any amendments.
I once labeled the flow of minority obstruction and majority countermoves in the McConnell years a “Senate syndrome.” Each party quickly resorts to parliamentary moves that prevent the other party from gaining an edge either in the legislative process or in public relations. While bipartisan compromise is sometimes stimulated, stalemate is a common outcome. It almost always limits the traditional opportunities that senators enjoyed to participate in the process by offering amendments and negotiating with colleagues in a meaningful way. Floor activity is closely supervised and orchestrated by the floor leaders with party interests given the highest priority. Frequently, sometimes several times in a day, senators references to the other party are filled with acrimony and often bitterness.
A False Equivalence
Plainly, it takes two to tango in the legislative process so it is easy to blame Reid and the Democrats as much as McConnell and the Republicans. To do so, however, would misread the sequence of events and the underlying motivations of the key players. As minority leader during the 2007-2014 period, McConnell adopted the same view of the minority party strategy that Newt Gingrich (R-GA) had advocated in the House of the late 1980s and early 1990s and Trent Lott (R-MS) had pursued in 2002 as Senate minority leader. That strategy placed a higher priority on winning elections and gaining a Senate majority and a low priority on short-term legislative accomplishment. It turned the legislative process into a messaging machine about the failures of the other party, which minority obstructionism facilitated.
Moreover, McConnell, in contrast to the Democratic leaders with which he has served, has articulated the view that the Senate was intended to protect minority rights at the expense of rule by a simple majority. This is a very misleading interpretation of the intentions of the framers of the Constitution and the early decades of the Senate. McConnell is more responsible for perpetuating the myth than any other current senator. The myth that serves the purposes of McConnell and conservatives who want to limit the creation of new federal programs and recognize that a high threshold for Senate action serves that interest over the long term.
McConnell promised a “scorched earth” response from Republicans if Democrats move the Senate to simple-majority cloture on legislation. As a wave of interest in filibuster reform hit the Senate after Democrats gained a technical majority in 2021 (50 Democrats plus the vice president), McConnell made two speeches that detailed his intentions.[3] He expected that his party would become more obstructionist, demanding time-consuming votes on the most routine matters and bringing the Senate action to a crawl. McConnell’s threat: “Everything that Democratic Senates did to Presidents Bush and Trump and everything the Republican Senate did to President Obama would be child’s play compared to the disaster that Democrats would create for their own priorities if—if— they break the Senate.”[4] Of course, the Senate would “break” only if McConnell followed through on his threats as minority leader to make his party even more obstructionist.
McConnell has been successful in changing expectations about the Senate—so much so that knowledgeable editors and reporters have routinely said that 60 votes are required for a measure to pass the Senate. That is not true. A simple majority is required to adopt a motion to pass most legislation unless the minority refuses to allow a vote. Minority obstruction, once rare, has become commonplace, but media acceptance of the inevitability of a filibuster has made it much easier for McConnell to redefine that Senate and avoid blame when obstructing.
Supreme Court Nominations
In addition to inventing the “60-vote Senate,” McConnell fabricated a norm about the Senate’s obligation to advise and consent to presidential nominations to the Supreme Court. In February 2016, when Justice Antonin Scalia died unexpectedly and Republicans held a Senate majority, McConnell immediately announced that the Senate would not consider any nominee named by President Barack Obama, a Democrat, before the elections that fall and the end of the Congress. Over the next few weeks, McConnell insisted, incorrectly, that tradition allowed the Senate to ignore a Supreme Court nomination in the last year of a presidential term. McConnell hoped, and he was correct, that a Republican would win the White House and nominate a conservative to fill the Scalia vacancy. Obama nominated Merrick Garland and, as McConnell promised, took no action on the nomination and let it expire at the end of the Congress. Eventually, President Donald Trump nominated Neil Gorsuch, who was confirmed in April 2017.
In June 2021, when McConnell was asked about his intentions to act on a Supreme Court nomination that President Joe Biden might make in 2024, the last year of Biden’s first term, he responded that the Republicans would not act on a nomination if the party was in the majority. Moreover, McConnell said, he and the Republicans might not act on a nomination made in 2023—one-to-two years before the end of the president’s term. Observers properly observed that this was an exceptionally partisan use of the Senate prerogatives.
An Elected Leader
McConnell, of course, is the elected leader of his party and has been since he became the party floor leader in 2007. In fact, his leadership role has never been seriously threatened. The only reasonable inference is that his behavior is largely consistent with the expectations of his colleagues. Not all Republicans are happy with the McConnell’s partisan strategies, but only a few have expressed displeasure publicly. If anything, some of his colleagues stand ready to go on their when their floor leader contemplates a bipartisan approach from time to time. It isn’t obvious that any successor to the leadership post—likely John Cornyn (R-TX) or John Thune (R-SD)—would pursue floor strategies that were much different.
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[1]Congressional Record, July 10, 2007, S8918.
[2]Ibid.
[3]Congressional Record, January 26, 2021, S134; Congressional Record, March 16, 2021, S1532.[4]Ibid., S1532.