Mitch McConnell was elected to the US Senate in 1985. He was named Senate minority leader in 2007, and Senate majority leader in 2015. It was, for McConnell, the culmination of decades of planning, labor, and, when necessary, self-abasement. “The ultimate goal of many of my colleagues was to one day sit at the desk in the Oval Office,” McConnell writes in his memoir, The Long Game. “That wasn’t my goal. When it came to what I most desired, and the place from which I thought I could make the greatest difference, I knew deep down it was the majority leader’s desk I hoped to occupy one day.”
And oh, what a difference McConnell has made. He will go down as one of the most consequential Senate leaders in history. But his legacy isn’t defined by bills passed or pacts struck. McConnell’s legislative record, in terms of both his accomplishments and those he’s shepherded through as leader, is meager. He has passed tax cuts, cut regulations, and confirmed judges. He failed to repeal Obamacare, shrink or restructure entitlements, or pass infrastructure or immigration reform. Historians will not linger long over the laws McConnell passed. As McConnell himself has said, his most consequential decision was an act of negation: blocking Merrick Garland from being appointed to the Supreme Court.
McConnell’s legacy, rather, will be in transforming the United States Senate into a different institution, reflecting a different era in American politics. Historically, the Senate has been an institution unto itself, built around norms of restraint and civility, run according to informal understandings and esoteric rituals, designed around the interests of individuals rather than the stratagems of parties. This is the Senate McConnell claimed to revere, naming Sen. Henry Clay — known as “the Great Compromiser” — as his model and promising a restoration of the old traditions.
This is the Senate McConnell has eviscerated, through his own actions and those he has provoked in the Democrats. Despite his theatrical embrace of sobriquets like “Darth Vader” and “the Grim Reaper,” McConnell isn’t an evil genius. He is a vessel for the currents and forces of his time. What sets him apart is his fulsome embrace of those forces, his willingness to cut through the cant and pretense of American politics, to stand athwart polarization yelling, “Faster!”
Under McConnell, the Senate has been run according to a simple principle: Parties should use as much power as they have to achieve the outcomes they desire. This would have been impossible in past eras, when parties were weaker and individual senators stronger, when political interests were more rooted in geography and media wasn’t yet nationalized. But it is possible now, and it is a dramatic transformation of the Senate as an institution, with reverberations McConnell cannot control and that his party may come to regret. Indeed, McConnell’s single most profound effect on the Senate may be what he convinces Democrats to do in response to his machinations.
“What makes McConnell successful is he gets his party colleagues and the Democrats to buy into his vision of the Senate rather than trying to change it,” says James Wallner, a fellow at the R Street Institute and a former executive director of the Senate Steering Committee under Sens. Pat Toomey (R-PA) and Mike Lee (R-UT).
I will confess to a deep pessimism about American politics right now. We stand on the precipice of a legitimacy crisis — minoritarian rule has become the norm, an unpopular president has all but promised to refuse to accept a loss at the polls, and a political system that has only ever worked with weak parties is proving unable to govern amid the collisions of strong ones. But there is a glimmer of an optimistic tale that can be told, too. And, to my surprise, it revolves around McConnell, and the vision of the Senate that he is convincing Democrats to embrace, the reforms he might, at last, convince them to make.
What did Mitch McConnell do wrong?
Rewind the clock to 2016. Justice Antonin Scalia has died. President Barack Obama has nominated Merrick Garland, a moderate Democrat whose confirmation would end conservative dominance over the Court, to replace him. Mitch McConnell commands a 54-vote Senate majority, lifted into office by conservative voters who loathe the idea of a liberal Supreme Court.
McConnell does two things here, and they are worth separating. One is philosophical, and even principled. He decides to treat Supreme Court nominations as what they are: one of the most ideologically consequential votes the Senate takes. The other is cynical: He refuses to even hold a hearing on Garland, instead inventing an absurd rule, one that he will later break, that states that Supreme Court seats shouldn’t be filled in presidential election years.
McConnell’s calculation was simple: If Garland was permitted to testify, some Senate Republicans might revert to treating the nominee on his merits and swing to support Garland. McConnell needed Republicans to act like a caucus, not individual senators. And so he froze the process on a vote that united his party rather than one that divided them. “It’s a question of power and only secondarily of explanation,” says Steven Smith, author of The Senate Syndrome: The Evolution of Procedural Warfare in the Modern US Senate. “But politicians need to talk, so they need explanations.”
Liberals focus on the wanton hypocrisy of McConnell’s comments. “The American people should have a voice in the selection of their next Supreme Court justice,” he said at the time. “Therefore, this vacancy should not be filled until we have a new president.” But focusing on what McConnell said obscures the underlying logic of what he did: Republicans didn’t want Obama to fill Scalia’s seat, they had the power to stop him, and so they did. All the rest of it was just mouth noises.
This is the true McConnell rule: What parties have the power and authority to do, they should do. And to give him his due: It is much stranger, by the standards of most political systems, for the reverse to be the case, for senators to refuse to use their power to pursue their ideological ends on a question as important as a lifetime appointment to the Supreme Court. But that’s how American politics has traditionally worked.
It worked that way because the parties, and their Supreme Court nominees, were different than they are now. The parties were ideologically mixed rather than ideologically polarized, and Supreme Court nominees were ideologically unpredictable rather than heavily vetted and ideologically consistent. From the 1950s through the 1990s, knowing the party that nominated a justice told you little about how that justice would vote. All of that lowered the stakes on each nomination.
Today, we have ideologically disciplined coalitions naming their most reliable foot soldiers to lifetime appointments to the most powerful judicial body in the land. Those changes predate McConnell; his contribution was taking them to their logical conclusion in the Senate: Treat Supreme Court nominees like any other major ideological vote, and do whatever you need to do to win.
This attitude also drove McConnell’s record-breaking use of the filibuster during the Obama era. The Senate has long had a filibuster, and it was technically more powerful in the past than today. Until 1917, there was no procedure by which any number of senators could vote to end a filibuster. From 1917 to 1975, it took a two-thirds supermajority to close a filibuster. Even so, filibusters were rare in this period — with the gruesome exception of the Southern bloc of Dixiecrats who used them to block civil rights legislation. But as the Dixiecrats proved, it was relatively easy for a united group of senators to block any and all legislation, if they so chose. The rules gave them that power, and the minority party could’ve used it with abandon. The norms, and the diffuse nature of the parties themselves, kept them from routinely using it.
What’s changed the US Senate isn’t changes to the rules, and it’s not just McConnell. It’s been the sorting of the parties into ideologically and demographically distinct coalitions. And it’s this trend that McConnell has, depending on how you look at it, harnessed for his ends or embraced because of his weaknesses. Either way, he has wrenched the Senate away from its traditional role as an institution unto itself, governed by norms of restraint and civility, and midwifed its transformation into another forum for party combat. He has created a parliamentary environment in an institution where the rules were designed for comity and cooperation. The result has been gridlock, fury, and confusion.
“I am not sure that any majority leader in history has had less regard for the institution than Mitch McConnell,” says Sen. Michael Bennet (D-CO). “He claims he’s an institutionalist, but that’s a lie. Instead of having any shred of responsibility for the institution, he simply has done what he believes he can get away with and still win. And up until now, that’s been true. But I think the cost of that is going to turn out to be extraordinary.”
What McConnell has wrought
Over the past few months, I’ve been talking to Senate Democrats about the future of the filibuster. To my surprise, something had cracked in the ice. Moderate members who used to dismiss calls to abolish the filibuster were taking them seriously, predicting or even advocating its fall. And the reason they gave me was always the same: Mitch McConnell.
The singular lesson Senate Democrats learned from the Obama years was McConnell simply wouldn’t let them govern if they retook the majority. The hope that their cross-aisle friendships, technocratic compromises, open committee processes, or informal “gangs” could break McConnell’s obstruction had dissolved. And with the world warming, and the virus raging, and millions unemployed, they knew that if they retook power, they would have to govern. “We’re not going to pass on a historic set of opportunities to allow garden-variety obstruction,” says Sen. Ron Wyden (D-OR). “We’re going to get this done.”
I want to note, here, that both sides have their narratives of persecution and blame. Republicans believe Democrats broke norms, abused rules, corroded traditions. In 2013, for instance, Democrats nuked the filibuster on executive branch appointees and non-Supreme Court judicial nominations. They argue, I think correctly, that McConnell forced their hand, filibustering an unprecedented number of appointments and making it functionally impossible for Obama to govern. Republicans argue that Democrats changed the rules rather than naming more moderate choices to key positions and have reaped what they sowed.
I think Democrats have the better of this argument, but it doesn’t really matter. It’s the underlying dynamic that’s important. Smith calls it “Senate syndrome.” In a 2010 paper that is all the more useful for predating the past decade of escalation, he wrote, “In today’s Senate, each party assumes that the other party will fully exploit its procedural options — the majority party assumes that the minority party will obstruct legislation and the minority assumes that the majority will restrict its opportunities.”
What Democrats now believe is McConnell won’t let them govern if they win, and in the aftermath of Garland and of Ruth Bader Ginsburg’s death, he won’t show them any quarter if he wins. Republicans, to be fair, believe the same about Democrats. Compared to the Senates of yore, both sides are right. McConnell has gone further, faster, than the Democratic leaders in torching old precedents and making the realpolitik principles of the new era clear. But in doing, he’s potentially done something that liberal activists and pundits were never able to achieve: convince Senate Democrats that the Senate is broken, and that new rules are needed.
In this, McConnell’s strengths are also his weaknesses. He possesses a brazenness about American politics, a cynicism about the use of power, that lets him execute stratagems other leaders would be constrained by their reputations or fear of backlash from attempting. But that same comfort with the dark side, that willingness to play the Grim Reaper of politics, robs his opponents of their excuses for inaction, of their comforting belief that comity and compromise waits around the corner.
“It is a little bit frustrating when liberals complain, because McConnell is not doing anything wrong per se, he’s just using his power very aggressively in ways that are permitted by the rules,” says Adam Jentleson, a former staffer for Senate Majority Leader Harry Reid and author of the forthcoming book Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. “You can complain about that all you want, or you can respond by doing the same thing when you have power. And Democrats are starting to realize they have a responsibility to the health of our democracy to pass the structural reforms that will make the Senate, and thus the government, more reflective of the country.”
In the long run, McConnell may reshape the Senate more completely through what he compels Democrats do than through what he himself does.
Could McConnellism lead to democratization?
I began this piece by saying my optimistic vision for politics revolves around McConnell, and it’s time I made good on that argument. Before I do, let me state the obvious: Crisis is not always opportunity. Sometimes, it is just crisis. And America may simply fall into fracture or illegitimacy. If it is to avoid these fates, it will require actions that few politicians enjoy contemplating, and the safest bet is always that politicians will duck hard choices. What follows here, then, is not a prediction but a possibility.
Representative democracy is a good system, provided it is both sufficiently representative and sufficiently democratic. America, in 2020, is neither. The Senate gives the Republican party a 6- to 7-point advantage. The Electoral College gives the Republican Party a 65 percent chance of winning elections in which it narrowly loses the popular vote. Because of these advantages, the Republican Party has managed to secure startling dominance of the Supreme Court, despite rarely winning a majority in national elections. And that same Supreme Court then delivers rulings that further help Republicans win elections; in fact, President Trump has said explicitly he is counting on the Court to help him challenge mail-in ballots.
"We need 9 justices. You need that. With the unsolicited millions of ballots that they're sending ... you're gonna need 9 justices." -- Trump suggests he's counting on SCOTUS to have his back when he makes claims of election fraud following November's election pic.twitter.com/Ju8ShMe8MN— Aaron Rupar (@atrupar) September 22, 2020
Democracy works because it disciplines politicians and parties: It forces them to hew closer to what the voters want, and punishes them when they diverge too far. But that disciplining function dissolves when the pathway to minoritarian rule strengthens. That’s broadly understood. What’s less understood is that it also dissolves when the mechanisms of governance weaken, when government begins routinely failing to deliver voters the change that has been promised.
“It’s very difficult right now for Americans to see why it is that they go to the polls and — maybe — the people they vote for get elected, but then not much seems to change,” says Suzanne Mettler, co-author of Four Threats: The Recurring Crises of American Democracy. “They don’t follow the fact that, well, there weren’t 60 votes for cloture in order to bring something to the floor in the Senate.”
The Senate sits at the center of both these currents of dysfunction, and its toxic role in American politics, and American life, has been protected by the thick shroud of mythos and tradition that surrounds it. It is why American citizens in DC and Puerto Rico remain disenfranchised. It is why reforms to make democracy more responsive, to protect it from the flood of cash and the perversions of gerrymandering and voter suppression, have no chance of passage. It is why, even on the occasions when one party holds both chambers of Congress and the White House, so little gets done.
“One of the worst things about the filibuster is it allows senators to say they support something without ever having to stand behind a vote,” says Stasha Rhodes, director of the 51 for 51 campaign, which advocates for a DC statehood vote free from the filibuster. “It’s one thing to say you support DC statehood and another to say you support bypassing the filibuster to see it actually happens. It is one thing to talk about the need to reduce gun violence in America. It’s another to say you’re going to remove the hurdles that stand in that bill’s way. The difference between removing the filibuster and not is the difference between theory and action.”
McConnell’s use of the filibuster, and his approach to Supreme Court nominations, is heightening the contradictions. Democrats are now considering reforms that are, from the standpoint of democratic governance, overdue, but that were, from the standpoint of Senate traditions and mores, unthinkable: eliminating the filibuster, adding DC and Puerto Rico as states, even changing the composition of the Supreme Court. To Republicans, these reforms would represent escalation. To Democrats, they would represent the only path forward. Perhaps both are right.
The fundamental conflict in American politics is whether we will, going forward, be a true multiethnic democracy, or whether we will backslide into something closer to minoritarian rule. The crisis McConnell has forced can play out in many ways, some of them terribly destructive. But the certain path to backsliding is simple inaction, in which the status quo persists, minoritarian rule perpetuates itself, and the 20th-century understanding of the US Senate is used to choke off multiethnic democracy in the 21st century.
“When I got to the Senate, people used to say, ‘If anyone can do it, Mitch can do it,’” recalls Wallner. “They stopped saying it after he failed a lot.” But in this case, it may be true: If anyone can get the Democrats to take the urgency of reinvigorating democracy seriously, Mitch can do it.