The Power of 41: GOP Senate Minority Frustrates Democrats

In May, Mitch McConnell, the Senate Minority Leader, told the Wall Street Journal:

When I woke up after the election in November 2006 ... I realized I was going to be the Republican leader and not the majority leader. That was the bad news ... The good news is that 49 is not a bad number in a body that requires 60. The United States Senate is the only legislative body in the world where a majority is not enough ... My goal from the very beginning, which my Republican colleagues have supported without exception, basically, is to use the power of 41 – or more – to do one of two things: either to stop things that are totally awful . . . or more frequently, to use the power of 41 to shape ... Really bad ideas die in the Senate, and in that sense it has protected America from extremes throughout our history.

Thank goodness for the filibuster, I say. It works to frustrate the formation of permanent majorities, and the mechanism is an ultimate example of Madisonian safeguards for the protection of minority rights.

McConnell's in the news today, it turns out, as the Washington Post reports in its story, "Political Maneuvers Delay Bill After Bill in Senate":

The Senate went home yesterday for the Fourth of July holiday to face voters, having failed repeatedly to address critical economic issues from skyrocketing gas prices to climate change to the nation's housing crisis.

Leaders in both parties have vowed to tackle those problems. Yet the Senate has been unable to move forward even when there is broad agreement about what to do.

Take the housing rescue bill that collapsed this week: On a test vote, 83 senators supported provisions intended to halt the steepest slide in home prices in a generation. Still, the measure stalled, undone by a dispute over whether to add tax breaks for renewable energy production, an idea supported by 88 senators.

Lawmakers, lobbyists and independent analysts say that bill and other major legislation have been derailed by political maneuvering for an election likely to consolidate Democratic control over Congress and in which the sputtering economy tops the agenda. With each side using the Senate's byzantine rules to gain advantage, work in the upper chamber, always balky, has ground to a halt.

Senate Democrats accuse Republicans of adopting intransigence as a strategy to produce a "do-nothing" Congress. Senate Republicans acknowledge using delay tactics but say they are reacting to a heavy-handed Democratic majority that has denied them a voice on the Senate floor.

"Members recognize this is going to be a critical election. There's potential for dramatic change in the Senate and the House and the presidency. So both sides aren't willing to give an inch on messaging," said Brian Darling, director of Senate relations at the Heritage Foundation. "Both Republicans and Democrats have dug in their heels."

The Senate has managed to pump out a few big bills this year, including an economic stimulus package, which gave tax rebates to millions of Americans, and the farm bill, which directs agricultural spending. Late Thursday, the Senate approved a bill to fund the wars in Iraq and Afghanistan that also increases educational funding for veterans and extends unemployment benefits.

But the war spending bill was the sole victory in a week that otherwise dissolved in a frenzy of futility. In addition to delaying the housing bill until next month, the Senate left town without approving a long-awaited electronic surveillance measure and legislation to prevent physicians who accept Medicare from getting hit with a 10.6 percent pay cut.

The Medicare bill was a particular disappointment; it passed the House 355 to 59. But Senate Republicans used the filibuster rule, which requires 60 votes to end debate, to block the measure because of a dispute over small cutbacks in a program run by private insurers called Medicare Advantage. Doctors and advocates for the elderly were furious.

"A group of Republican senators followed the direction of the Bush administration and voted to protect health insurance companies at the expense of America's seniors, disabled and military families," American Medical Association President Nancy H. Nielsen said in a statement. "These senators leave for their 4th of July picnics knowing that the most vulnerable Americans are at risk because of the Senate's inability to act."

Housing advocates, consumer groups and business organizations have been equally frustrated by the glacial pace.

"It's a delay-of-game Congress," said R. Bruce Josten, executive vice president of the U.S. Chamber of Commerce. "This Congress isn't addressing the issues that are foremost in the public's mind such as gasoline prices, economic anxiety and the housing crisis."

Senators in both parties say the logjam is the worst they've seen, largely due to copious use of the filibuster. Since January 2007, motions to end debate -- cloture motions -- have been filed 119 times. The previous record for any two-year session was 82.

Meanwhile, Senate Majority Leader Harry M. Reid (D-Nev.) has used a procedural tactic to prohibit GOP amendments 13 times since January 2007, more than any Senate leader since 1985.

Republicans point to those statistics and accuse Reid of using cloture to deny them the ability to amend legislation often chosen for its political message. That is why, they say, Sen. John Ensign (R-Nev.) has slowed the housing bill with his renewable-energy amendment. The housing bill is one of the few measures moving through the Senate that has a chance to become law.

"Substantive bills have simply been abandoned," said Sen. Judd Gregg (R-N.H.). "Therefore, when a vehicle does appear that, like the housing bill, has some consensus behind it, people throw baggage on that immediately derails it."

Democrats say that Republicans are using the filibuster to block legislation and that their demand for amendments is an effort to turn every bill, no matter the subject, into a debate over GOP issues, such as the estate tax or offshore drilling.

"I think it's really unfair to say no one's compromising," said Sen. Charles E. Schumer (D-N.Y.), noting that Republicans have blocked even bipartisan measures. "And they're hurting themselves politically. They've been doing this for a year now. As they keep doing it more and more, the number of voters who say they prefer Democrats to Republicans keeps going up."

The low point in Senate relations may have come during debate on a climate-change bill sponsored by Sens. John W. Warner (R-Va.) and Joseph I. Lieberman (I-Conn.). Senate Minority Leader Mitch McConnell (R-Ky.) forced the entire 492-page bill to be read aloud, an exercise that took nearly nine hours. McConnell said the move was payback for Reid's failure to act on President Bush's judicial nominees. Frustrated, Reid moved to end debate and bring the bill to the floor. The vote failed, killing the bill.

Many partisans blame the Republicans for congressional ineffectiveness and unpopularity over last 18 month. The fact is, however, Harry Reid's perhaps the most inept Majority Leader in history, and the GOP is skillfully deploying institutional rules to slow action or kill disastrous Democratic-sponsored legislation.

The Senate results on election night will be some of the most significant to watch, and so far expert opinion suggests the Democrats will fall short of winning a filibuster-proof majority (see, for example, "Sabato Puts Senate race in Democratic Corner").