ANALYSIS — When Senate Minority Leader Mitch McConnell relented from his demand that the new Democratic majority agree to preserve the filibuster on Jan. 25, it gave hope to Democrats who want Congress to reshape America along progressive lines. But the dynamics of the Senate still make the sort of transformative agenda they’d like to see unlikely.
Progressives hope that this Congress, the first one with Democrats fully in control since 2010, can finally pass laws to curtail climate change, racial injustice and gun violence, and also take steps to establish a stable liberal regime by adding Washington, D.C., and Puerto Rico as states and new justices on the Supreme Court.
The new Senate majority leader, Charles E. Schumer, has fed this desire. “We’re all energized by the opportunities that are ahead with the new Senate majority. Our entire caucus agrees: We must have big, strong, bold action,” he said on Jan. 26, echoing a theme he’s stressed since before Election Day.
But progressive dreams are still far from fulfillment and, a month into its new term, the Senate is approaching a crucial intersection. In one direction is more bipartisan cooperation than it’s seen in years; in the other, continued partisan gridlock. If there’s a road to the sort of legislation progressives want, it’s not yet in sight.
For starters, Schumer has not ended the filibuster. McConnell’s pullback means Schumer retained the ability to try to end it. But two Democratic senators, West Virginia’s Joe Manchin III and Arizona’s Kyrsten Sinema, have pledged to retain it, while others, including President Joe Biden, are only a bit less adamant about keeping the 60-vote threshold for most Senate legislation.
Schumer at a minimum would like to use the threat of ending or changing the filibuster as a sword of Damocles to prompt more GOP cooperation. But if he succeeds in that, Democrats will have to give a little, and progressives are likely to be disappointed by the moderate proposals that emerge.
Even Schumer has said that his priorities, for the foreseeable future, are limited. He wants to confirm Biden’s Cabinet, pass more coronavirus relief and try former President Donald Trump for inciting the mob that raided the Capitol on Jan. 6.
Schumer’s suggestion on Jan. 27 that Biden declare a national climate change emergency to redirect funds that Congress has appropriated for other things to combat global warming will please progressives. But it also suggests that Schumer doesn’t see an avenue for far-reaching legislation on the issue.
Schumer says he’d like bipartisan cooperation on coronavirus relief but otherwise will use budget reconciliation’s expedited processes, which allow passage of budget-related legislation with a simple majority vote once per fiscal year. There is nothing groundbreaking in this. It is the playbook majority parties have used for years. It was used by Democrats in 2010 to expand health insurance enrollment and Republicans in 2017 to cut taxes.
So if there’s a fight over the filibuster, it is now forestalled to some future date over some as yet unforeseen logjam. If Republican recalcitrance at that moment prompts Democrats to allow additional legislation to proceed with fewer than 60 votes, it will mean that Manchin and Sinema broke their promise.
That will come at great political risk to them, and they will want some protection in return. Their crucial votes will ensure that legislation coming out of the Senate fits their centrist worldview. Again, progressives will be disappointed.
And there’s still plenty of reason to believe that Democrats will not break the filibuster for fear of the precedent it would set. Even as McConnell backed down from his demand, he explained on Jan. 26 that he retains his own sword of Damocles. In fact, he said he holds more than one.
If Democrats end the 60-vote requirement, “this body would grind to a halt like we’ve never seen,” he threatened. McConnell went on to explain that Republicans would require Democrats to establish a quorum to proceed on all business, that Republicans would demand roll call votes to advance routine matters now agreed to by unanimous consent, that they would drag out every judicial and executive branch confirmation to the maximum extent.
And then there’s the threat that Republicans would use the rule change in their favor when they return to power. McConnell was explicit: “We would be able to repeal every bill that had just been rammed through,” he said, adding that Republicans would then proceed with all the new laws they’ve wanted but Democrats have blocked with the filibuster: restricting abortion, increasing fossil fuel exploration, cracking down on illegal immigration and making life difficult for labor unions. “You get the picture,” he said.
Also working against a major shift leftward, it’s easy to forget that Schumer’s win over McConnell on the filibuster came alongside his offer to model the Senate organizing rules on the power-sharing agreement adopted the last time the chamber was divided 50-50, in 2001. That agreement was so generous to the minority party that many Congress watchers doubted Schumer would abide by the precedent after Democrats secured the majority with their two wins in Georgia on Jan. 5.
Indeed, if McConnell had not requested the additional assurances on the filibuster, the adoption of the 2001 rules would have been seen as a victory for the Republicans. Those rules gave the minority equal representation on committees and the possibility of bringing bills to the floor in the event of tie panel votes. They curbed the majority leader’s ability to fill the “amendment tree,” a tactic used to limit amendments to bills to save time and prevent tough votes. (As of Jan. 28, the text of the new agreement between the leaders had yet to be released, however, including final details on the amendment process.)
So will it be gridlock or cooperation? The decision to go right, or left, remains. On the one hand, Republicans have dismissed Biden’s $1.9 trillion coronavirus relief proposal as too much too soon after December’s $900 billion law. Then again, some in the Democratic Conference, from Manchin to Maine’s Angus King (an independent who caucuses with Democrats), have wondered whether it should be smaller and more targeted. Whatever passes, whether bipartisan or via a partisan budget reconciliation process, undoubtedly will be.
Elsewhere, there are signs of cooperation. As yet, none of Biden’s nominees to reach the Senate floor have faced more than nominal GOP opposition. By contrast, more than half of the Democratic senators voted against 10 of Trump’s 15 principal Cabinet nominees in 2017.
Having spent much of his floor time since the election demanding quick confirmation of Biden’s nominees, Schumer pronounced himself pleased. “We’re off to a decent pace,” he said on Jan. 26, even offering a kind word to McConnell for his cooperation.
By the end of the week, the Senate had confirmed four of Biden’s picks.
Still, this is the calm before the storm. Starting next week, Schumer will have to pursue his plans for “big, bold action” while also trying Trump for high crimes.