In a Senate that is now split 50-50, newly minted Minority Leader Mitch McConnell and his counterpart, Majority Leader Chuck Schumer, are negotiating a power-sharing agreement. Although Vice President Kamala Harris wields the tie-breaking vote for Democrats on the Senate floor, the two parties must negotiate how they will manage the day-to-day operations of the institution.
What McConnell agrees to in the upcoming days will tell us a lot about how the Senate GOP plans to comport itself during the next two years. That is particularly true of committees. While committee ratios and budgets are always negotiated between the parties at the beginning of a Congress, the 50-50 split requires the presence of an operating agreement that will determine, for example, how and if President Joe Biden’s nominees are reported from committee.
Under a normal process of consideration, nominees must receive a majority vote to be reported favorably for floor consideration. In a tied Senate, however, where committees are equally divided, a majority vote is far less reliable — the vote could either be tied or not receive a majority of votes. In a normal scenario, this would result in the nomination not moving forward (Unlike legislation, nominees have never been forcibly “discharged” from committee consideration via petition, or bypassed committee consideration in other ways).
Schumer is going to want to clear the path for Biden nominees to be considered on the Senate floor. This will require an agreement with McConnell that nominations that do not receive a majority vote — including those that are tied — will move to the floor, anyway.
If McConnell is going to make this major concession to the narrowest of Democratic majorities, he shouldn’t do so for free.
Why the Legislative Filibuster Matters
Enter the legislative filibuster. For the last year, Senate Democrats have indicated both their willingness and intent to blow up the institution by overturning (or “nuking”) the legislative filibuster, packing the Supreme Court, and adding Puerto Rico and the District of Columbia as states (with four new Democrat senators).
These are not threats to be taken lightly, nor should they be brushed off as merely the hot rhetoric of the campaign trail. Without the legislative filibuster — which requires 60 votes to overcome — the Senate becomes a minor league House of Representatives, ruled by the mercurial whims of a majority, where minority voices and causes have no procedural way in which to matter.
While the filibuster is often decried for slowing down, hamstringing, or blocking the legislative process, it was actually designed as a way to facilitate it. Generally speaking, passing legislation in the Senate requires the participation of more than just the majority.
Ending a filibuster — that is, getting to 60 votes in the Senate — requires consensus. It forces the parties to work together, to engage in negotiation, and to perform the give-and-take of legislating. This deliberation is what distinguishes the Senate from the House, where the majority has the full authority to crush the minority, and frequently does.
Furthermore, the filibuster performs an additional important function: it gives individual senators — and the causes that lack support of the majority — a voice they otherwise wouldn’t have. Because overcoming a filibuster requires a large consensus, causes can’t simply be steamrolled.
The concerns of individual senators, or groups of senators, must be given both credence and credibility. Voices and causes that would otherwise be ignored in a majoritarian body like the House receive consideration in the Senate — but only because the filibuster, or threat thereof, makes them matter.
The filibuster, in other words, amplifies otherwise voiceless causes and makes certain that they are taken seriously. For conservatives, as well as the far left of the Democratic Party, who are generally always in the minority even when their party is in the majority, the filibuster is a powerful tool.
Because senators have largely forgotten the art, and work, of legislating, the filibuster shoulders a lot of blame for the Senate’s dysfunction. The Senate rarely considers amendments or engages the levers and pulleys of the parliamentary process, whose function is to facilitate and structure the process of lawmaking.
In Senates of years past, leaders who have allowed for robust debate and ample consideration of amendments have found themselves facing far fewer filibusters. Senators, just like the rest of us, respond favorably — and far less obstructively — when their voices are heard in the legislative process.
McConnell Has the Means to Protect the Filibuster
The Senate was intended to be the chamber where minority voices, parties, and causes have substantial power. This is why threats from Democrats to fundamentally transform the Senate from a deliberative body into a majoritarian one cannot and should not be ignored.
McConnell seems to understand this. “I believe we need to also address the threats to the legislative filibuster,” he said in a memo circulated to his conference, referencing the power-sharing agreement he is negotiating with Schumer.
Still, it’s unclear how (or if) he intends to use the substantial leverage he possesses. McConnell can trade easier processing of Democratic nominees for a standing order, or a written understanding — a set of rules governing the Senate for the length of the Congress — which would bar any attempt by the Democrats to overturn the legislative filibuster or other attempts to fundamentally change how the Senate functions.
In other words, if McConnell is going to concede to easier processing of Democratic nominees, something Schumer surely wants, he should get something for it: in this case, a procedural commitment that nuking the legislative filibuster would be barred. If Democrats break their word, the concession from Republicans for easier committee processing of their nominees will likewise evaporate.
The opportunity McConnell has in this negotiation broadly reflects the power the Senate Republican conference possesses in a 50-50 Senate. Much of what Democrats want to do in the next two years, before the 2022 midterm elections, will require either their consent to expedite the process or their votes (at least 10 Republicans will have to vote with Democrats to overcome a filibuster on most legislation). Despite facing constant obstruction of Trump nominees for the last four years, Republicans have already conceded to the passage of Biden’s national intelligence director without much of an argument.
Far from being a helpless minority, Senate Republicans are in a powerful position to leverage their consent for key priorities, be they policy or institutional. How McConnell handles these early negotiations will signal what kind of party the Senate GOP intends to be: a party that trades away their leverage for nothing and feigns helplessness as they willingly give Senate Democrats everything they want, or a party interested in using their power to give as much voice and representation as possible to the voters who sent them there.