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Can Mitch McConnell repair the Senate?

- November 12, 2014

Sen. Mitch McConnell of Kentucky: Heir apparent to Henry Clay? (Michael Reynolds/EPA)
The Senate’s incoming majority leader, Mitch McConnell (R-Ky.), has pledged to return the Senate to “regular order.”  As  McConnell put it the day after the elections, “First thing I need to do is get the Senate back to normal.” What would a “normal” Senate look like, and can McConnell make it happen?
McConnell is not the first leader to bemoan the state of the Senate.  Like Democratic and Republican leaders before him (for starters, Democrats Harry Reid, Tom Daschle and George Mitchell and Republicans Bill Frist, Trent Lott and Bob Dole), McConnell now advocates a Senate that strikes a balance between debate and action, as opposed to a chamber perpetually tied in knots by the parties’ parliamentary warfare. As McConnell argued on the Senate floor last January, after admitting just a smidgen of culpability for the Senate’s sorry state of affairs, “It just can’t be the case that senators — on either side — are content with the theatrics and the messaging wars that go on here day after day.”
What would a “normal” Senate look like?  Keep in mind that there is no such thing as “regular order” in the Senate.  This is not the House with a well-scripted rulebook and majority party stacked Rules Committee that empowers a simple majority to determine floor proceedings.  In fact, “regular” order in the Senate might better be characterized as irregular order: a collegial and deliberative floor process that places few (if any) limits on debate or on the number or content of amendments.
With a crowded floor agenda, intensely competitive and polarized parties and 100 ambitious senators, truly unlimited debate and amendment are things of the past.  Indeed, as Sen. Harry Reid (D-Nev.)  explained late one night on the Senate floor in 2011, “I have found over the last Congress and nine months that when I try to have an open amendment process, it is a road to nowhere.” Instead, party leaders attempt to negotiate unanimous consent agreements (UCAs) to bring measures to the floor — requiring that the parties whittle down the list of amendments on which they seek floor votes.   Even these agreements often proved out of reach for Reid, who decried Republicans’ demands to offer “unending amendments that are not germane or relevant.”   When the parties balked at each other’s demands, Reid would often block all amendments (“filling the tree”) and file for cloture; when Republicans voted en masse against cloture, measures went nowhere, even in some cases when a bipartisan bill was at stake. Even informal agreements between Reid and McConnell in recent years to get the Senate back on track failed to take hold.  In one such agreement early in 2011, Reid promised to stop filling the tree if Republicans would stop filibustering the motion to call up legislative measures.  Neither happened.
McConnell has vowed to allow the Senate to debate and vote on amendments on the Senate floor, presumably waiting until senators have exhausted themselves before moving to invoke cloture (requiring 60 votes).  Coupling floor changes with an invigorated committee process (to help the Senate generate bipartisan bills) and a longer work week (aka votes on Fridays), McConnell promises a return to normalcy — no matter the political cost imposed on Republicans by casting votes on potentially divisive issues.
Repairing the Senate may be McConnell’s first order of business, and he may well have some early successes.  But for several reasons, it will also be a tall order.
First, the partisan and electoral conditions that have collided to produce the Senate’s parliamentary arms race did not disappear with the election of a Republican-controlled Senate.  As Steven Smith notes in his new book on the Senate, various tactics of obstruction have become standard fare for Senate minorities, leading majority parties to respond with procedural shortcuts — including tough limits on minority amendments.  These developments on both sides of the aisle have produced changes in the way the Senate operates, changes both parties decry.  As Sen. Charles Schumer (D-N.Y.) argued on the Senate floor in 2011, “If we are going to bring this place back to a place where we can legislate, both sides have to back off.”  The question for McConnell is whether his promise to restore normalcy is conditional on the cooperation of Democrats.  If Democrats adopt the tactics honed by the Senate GOP in recent years, will McConnell still keep the Senate amendment and debate floodgates open?
Second, even if Democrats restrain from aggressive obstruction of GOP priorities, McConnell will inevitably face the type of decisions that confronted Reid. For example, what if more conservative Republican senators demand floor votes on amendments that would impose punitive measures against illegal immigrants or would promote a personhood amendment to the Constitution — two amendments that might put Republicans senators up for reelection in blue states in a tough spot (particularly if they face a primary threat from the right)?  Or what if Democrats offer amendments to raise the minimum wage or address pay equity for women, amendments on which blue state Republicans could feel both electoral pressures to support and party pressures to oppose? McConnell argues that senators should be willing to cast tough votes.  Will he keep his promise if such votes could impose an electoral cost on Republicans seeking to hold their Senate majority in 2016?
Third, McConnell can try to cajole his colleagues to work on Fridays.  But it won’t be easy.  Senate leaders, as Howard Baker used to say, herd cats.  Without the consent of rank and file senators, the new majority leader’s ability to keep the Senate at work will be taxed, not least by GOP colleagues anxious to hit the presidential campaign trail.
Fourth, encouraging committees to get back to work could also prove challenging.  My hunch is that we’ll see variation across committees in their members’ abilities and incentives to secure bipartisan support for their measures.  Committee jurisdictions matter: Sen. Jeff Sessions at the helm of the Budget panel, for example, is unlikely to see eye-to-eye with Democrats (particularly if Bernie Sanders takes the ranking seat).   At Environment and Public Works, Barbara Boxer has worked on infrastructure measures successfully with Republican Jim Inhofe, but incentives to cooperate will be slim if Inhofe uses his chairmanship to wage war on the EPA.  The banking panel could find bipartisan ground on reining in big banks, but cooperation could be undermined if the panel also seeks to eliminate key features of D0dd-Frank.  More generally, resuming “regular order” in the Senate requires some underlying incentives for cooperation.  Those might be increasingly hard to come by as an election draws near.
Finally, keep in mind that the incoming leader’s parliamentary promises do not explicitly address how the Senate will handle judicial and executive nominations.  I doubt McConnell will completely shut down advice and consent.  But the question arises: Will McConnell’s promise to restore normalcy to the Senate apply equally to legislative and executive business?  And how will the new majority handle the Democrats’ nuclear move to ban nomination filibusters?  As McConnell has said, “it’s hard to unring a bell” — especially, we might add, if one’s party stands to benefit when it regains the White House.
Ultimately, like his role model, fellow Kentuckian Henry Clay, McConnell seems to understand the value of a Senate better adept at balancing debate and action — at least now that Republicans are poised to assume the majority with McConnell at the helm.  I take McConnell at his word that the Senate can and should do better and that he’s committed at least to trying to get the Senate back to work.  That said, even “the Great Compromiser” Henry Clay knew the limits of free and open Senate debate: Clay was one of the first senators to call for a majority rule Senate.  Democrats, beware!