In the aftermath of the election liberals have strained Twitter’s servers, debating how Senate Democrats—the last line of defense against Donald Trump’s agenda—should treat his proposals. Armies of self-styled Democratic strategists have condemned collaboration and demanded total resistance. But embedded in these diatribes is the assumption that Senate Republicans even want to get anything done.
Data point number one: The 115th Congress will initially leave the legislative filibuster, long expected to be dead, fully intact (though the one for Supreme Court justices is likely gone). Old GOP hands like Lindsey Graham and Orrin Hatch have vowed to maintain the filibuster, and Jeff Flake and Jim Inhofe are reportedly on board as well. That’s more than enough to deny the necessary votes to end the 60-vote threshold.
Smart students of legislative procedure will interject that Republicans can use budget reconciliation, a process requiring a mere majority vote. Any measure in a reconciliation bill must have a budgetary effect, but that’s enough to block grant Medicaid and food stamps or privatize Medicare or repeal much of the Affordable Care Act or, as George W. Bush did, lavish tax cuts on the wealthy.
But that notion of a Republican-led quick strike runs up against data point number two: Lamar Alexander, chair of the Health, Education, Labor and Pensions Committee, one of two with jurisdiction on Obamacare, cautioned it “will take several years” to repeal and replace the law. “We’ll need a consensus to complete it,” Alexander said, explicitly setting the bar at 60 votes. Alexander even downplayed reconciliation as a tactic, saying that it “only gives instructions to committees to go to work to solve the problem. A reconciliation package by itself doesn’t repeal anything.” (This is true, but the subsequent reconciliation bill can repeal items if they change outlays or revenues.) Hatch, chair of the other committee of jurisdiction (the Senate Finance Committee), also called for a bipartisan approach on any health care tweaks, and said that he would even need Democratic support for tax reform, which George W. Bush passed through reconciliation.
Things get more intriguing with data point number three: Mitch McConnell trying to stop a reconciliation bill from happening in early 2017. Currently, Congress faces a December 9 deadline to extend government funding. The incoming Trump team has requested a short-term extension to March 31, so they can immediately influence budget priorities next year. House Republicans acquiesced to this and prepared a short-term continuing resolution.
But Mitch McConnell hasn’t publicly agreed. In fact, he’s only said that he would like to finish the budget in the lame-duck session, and that “discussions are ongoing.” Key members of the Senate GOP caucus backed McConnell up, even after the House’s announcement.
The timing of the funding extension will dictate reconciliation. Congress can only pass one reconciliation bill per budget year. With a short-term extension, Republicans could pass a 2017 fiscal-year reconciliation bill when completing the budget, and then do another one later for the 2018 fiscal year (which starts next October). But if the Senate closes the books on the 2017 budget in the lame duck, they would eliminate the possibility of a 2017 reconciliation bill. You could theoretically supersize the 2018 reconciliation to incorporate every GOP priority, from Obamacare to tax reform. But with so many moving parts, it gets a lot harder. So by preferring a long-term funding bill, Senate Republicans want to limit opportunities to advance controversial legislation by an up-or-down vote.
Then there’s the fact that McConnell has already announced that term limits, a Trump priority, will not be on the Senate agenda. And that McConnell’s top deputies John Cornyn and John Thune threw cold water on Trump’s infrastructure plan, saying it was unnecessary and must be paid for. And that other Senate Republicans are threatening to block Trump’s foreign policy selections.
You can find some tensions between Trump and House Republicans too, mainly over deficits. But generally speaking, the House wants to blitz through legislation quickly, and the Senate appears to have no interest in that. You can rationalize some reasons for Senate Republicans’ decisions—they don’t want a budget fight to bog down the agenda early in 2017, or the Supreme Court nomination will take up precious floor time—but looked at in its entirety, it’s very curious.
The best way to make sense of it is to understand McConnell’s political philosophy, which he summarized five years ago to The Atlantic. Discussing Republican obstruction in the Obama era, McConnell said:
We worked very hard to keep our fingerprints off of these proposals… Because we thought—correctly, I think—that the only way the American people would know that a great debate was going on was if the measures were not bipartisan. When you hang the ‘bipartisan’ tag on something, the perception is that differences have been worked out, and there’s a broad agreement that that’s the way forward.
In the minority, McConnell preferred to let Democrats own the policies, and subsequently the consequences. So reverse-engineer the scenario for today. McConnell doesn’t want a great debate between the parties. He wants Democratic buy-in for anything with the potential to be unpopular, so his party members cannot be blamed. Cornyn, number two in the Senate leadership, out and out said it: “If you do things purely on the party line, then it’s unsustainable.”
McConnell has no use for power other than acquiring and maintaining it. The only policy issue he’s ever felt deeply about was eliminating campaign-finance laws—in other words, giving Republicans an advantage in elections. Getting nothing done, and painting Democrats as responsible, appeals to him. So does making bipartisan deals to neutralize Democratic strategy in the midterms. Ramming things through all alone does not.
This strategy has yet to come in contact with the Republican base. They are unlikely to accept as a given that Democrats are tying McConnell’s hands. If Trump’s agenda continually bogs down in the Senate, conservative activists, a handful of hard-right senators (think Ted Cruz), and likely Trump himself will have no problem pointing fingers directly at McConnell, wedging him between GOP voter rage and his own political instincts.
The 2018 Senate calendar insulates Republicans to some degree. Only eight Republicans are up for re-election, and one, Hatch, announced six years ago that this would be his last term (though more recently he seems to be wavering). There just aren’t many opportunities to hold Senate Republicans accountable for McConnell’s gambit. And senators who want to get their bills voted on and their committee assignments approved will back McConnell.
None of this should cause any liberal to exhale and think that gridlock will save the nation. Trump’s executive branch can and will do plenty of damage on their own simply by installing cronies and ideologues. Presidents have consistently pushed the boundaries of executive power, and Trump has if anything far less constraints than his predecessors. Reconciliation remains an option, even if some senators show reluctance. And how Senate leaders will react to fury from conservative hardliners remains to be seen. So there are no rose-colored glasses here.
But Senate Democrats should recognize their power next year. Republicans are all but telling them that they hold the keys to any non-trivial legislation. They could view that as leverage to work with Trump on discrete issues, or as a means to exploit Republican intraparty tensions. The path they choose won’t just affect the next election; it will affect every policy they purport to care about.