Taken together, this gridlock could imperil Biden’s entire early presidency, making it impossible for him to deliver on key promises as he contends with duelling crises.
This reality could force Democrats to choose within a matter of weeks whether they will continue to pursue the sort of bipartisan cooperation that Biden – and many senators of both parties – have preached, or whether to pursue procedural shortcuts or rule changes that would sideline the GOP but also are likely to divide their caucus.
“Things move faster and faster nowadays,” said Republican Senator John Hoeven, commenting on the rising tensions. “It doesn’t seem like there’s a honeymoon period.”
Much of the current conflict over the Senate rules comes courtesy of veteran Republican Senator Mitch McConnell, who transitioned to minority leader last week after six years as majority leader.
Just hours after Biden’s inauguration, moments after a smiling Democrat Senator Chuck Schumer was first recognised as majority leader, McConnell pointedly noted on the Senate floor that the country elected a smaller House Democratic majority, an evenly split Senate and a “president who promised unity.”
“The people intentionally entrusted both political sides with significant power to shape our nation’s direction,” he said. “May we work together to honour that trust.”
Two days earlier, he had notified his Republican colleagues in the Senate that he would deliver Schumer a sharp ultimatum: agree to preserve the legislative filibuster, the centrepiece of minority power in the Senate or forget about any semblance of cooperation – starting with an agreement on the chamber’s operating rules.
The calculations for McConnell, according to Republicans, are simple. Not only is preserving the filibuster a matter that Republicans can unify around, it is something that potentially divides Democrats, who are under enormous pressure to discard it to advance their governing agenda.
“Republicans very much appreciate the consistency and the rock-solid fidelity to the norms and rules that make the Senate a moderating force in policymaking,” said Scott Jennings, a former McConnell aide. “The legislative filibuster is the last rule driving bipartisanship in Washington.“
The Senate filibuster has evolved over the course of its history into a de facto super majority requirement, requiring 60 votes to end debate and advance legislation. Rarely has one party held enough votes to defeat filibusters without at least some cross-aisle cooperation.
The rule has been eroded over the past decade. After McConnell led a broad blockade of president Barack Obama’s nominees, Democrats under then-Senate Majority Leader Harry Reid, in 2013 allowed executive appointees and lower-court judges to be advanced with a simple majority vote.
McConnell, in turn, eliminated the filibuster for Supreme Court nominees when Democrats threatened to block the nomination of Neil Gorsuch in 2017 and two years later changed the rules to more quickly confirm presidential nominees.
McConnell and other Republicans last week reminded Democrats that many of them praised the filibuster in the past – particularly in the two-year period in 2017 and 2018 where the GOP controlled the House, Senate and White House. Twenty-seven Senate Democrats who now serve signed an April 2017 letter calling on Schumer to preserve the status quo.
But most of those Democrats – who watched McConnell exempt Republican nominees from filibuster rules where he saw fit under Trump, after using them to the GOP’s advantage for six years before that to block Obama’s legislation and nominees – now find his early power move to be infuriating.
“We’re not going to go along with it,” said Democrat Senator Mazie Hirono, who was among those who signed the 2017 letter. “There will be some kind of resolution that does not involve Mitch McConnell getting what he wants.”
Schumer said as much on Friday on the Senate floor, telling McConnell that he considered any guarantee surrounding the filibuster to be an “extraneous demand” departing from the arrangement that the two parties worked out the last time there was a 50-50 Senate, in 2001.
“What’s fair is fair,” Schumer said, noting that McConnell changed Senate rules twice as majority leader. “Leader McConnell’s proposal is unacceptable, and it won’t be accepted.“
While the two leaders later that day cut a deal delaying Trump’s impeachment trial by two weeks – with a nudge from Biden, who wants to see progress on Cabinet confirmations – there is no visible progress on structuring the Senate.
Without an organising accord, Republicans remain in the majority of most Senate committees – veteran GOP lawmakers such as Senators Charles Grassley of Iowa, Richard Shelby of Alabama and James Inhofe of Oklahoma continue as chairs of key panels while veteran Democrats eager to seize the gavels and advance their long dormant agendas can only wait and wonder.
Panel budgets and staff hiring also remain frozen pending a deal.
Demoract Senator Richard Durbin, for instance, is in line to be chairman of the Senate Judiciary Committee and thus oversee Biden’s appointments to the Justice Department and federal bench, as well as key legislative items including an immigration overhaul and police reforms. Asked last week about the status of the panel’s chairmanship, he said, “I have no idea.”
Biden’s least controversial Cabinet nominees have moved forward in the first days of his administration, thanks to the unanimous consent of Republicans: Avril Haines was confirmed as director of national intelligence and Lloyd Austin was confirmed as defence secretary last week, while Janet Yellen is set to be confirmed as treasury secretary on Monday. But other, more controversial nominees could remain in limbo while McConnell and Schumer remain at an impasse.
Many senators and aides believe the matter can be settled quickly with Schumer acknowledging reality – that many Democrats, including Biden, are not convinced that the filibuster needs to be scrapped.
Biden, who spent 36 years as a senator before becoming vice-president in 2009, said in July that he’d “take a look” at filibuster elimination if Republicans bogged his agenda down in the Senate: “It’s going to depend on how obstreperous they become.”
But White House press secretary Jen Psaki indicated Biden had not yet reached that point, saying he intended to work with both Schumer and McConnell to advance his pandemic relief proposal: “He wants it to be a bipartisan bill”.
The Washington Post