How Mitch McConnell broke Congress

Measured by how many bills he successfully ushered into law, Senate Minority Leader Mitch McConnell (R-KY), who announced Wednesday that he will step down as Republicans’ Senate leader in November, was extraordinarily ineffective.

He famously failed to deliver on the GOP’s years-long promise to repeal the Affordable Care Act in 2017, and more recently clashed with hardline House Republicans who refuse to pass bipartisan legislation supported by McConnell. During his time as majority leader, McConnell’s primary legislative accomplishment is the tax law former President Donald Trump signed his first year in office, and not much else.

And yet, McConnell is likely to be remembered as one of the most consequential leaders in the Senate’s history, and for good reason.

McConnell’s legacy is not that he passed historic laws that transformed American society. It’s that he relegated Congress to second-tier status when it comes to deciding some of the biggest issues of our time. And he did it all while still empowering his Republican Party to dominate the policymaking process.

McConnell achieved this outcome in two ways. The first was a dramatic escalation in filibusters. The second is by filling the federal judiciary with movement conservatives who would bypass Congress altogether and implement Republican policies from the bench.

His legacy will be lasting.

How McConnell ground Congress to a halt

The filibuster allows a minority of senators to veto virtually any legislation, unless the majority can convince 60 of the Senate’s 100 members to break that filibuster. Because it is quite rare for either party to control 60 seats in the Senate — the last time it happened was a seven-month period in 2009–10 — this means that the minority party can block nearly all bills.

Filibusters used to be exceedingly rare. One common method used to measure the frequency of filibusters is to count the number of “cloture” votes, the process used to break a filibuster, taken every year. And from 1917 until 1970, the Senate held less than one a year.

That number started to rise well before McConnell became his party’s Senate leader. But the rate of cloture votes doubled in 2007, when McConnell first became minority leader. And it has grown rapidly since then. Between 2010 and 2020, the Senate took more than 80 cloture votes every year.

This escalation in filibusters, a tactic spearheaded by McConnell, has transformed the role of Congress in society. And it’s similarly transformed what kind of legislation governing parties even attempt to pass.

In the two years when President Joe Biden had a Democratic majority in Congress, for example, all of his major legislative accomplishments — the Inflation Reduction Act, the infrastructure bill, the CHIPS Act, and the American Rescue Plan — were spending bills and not regulatory legislation such as a minimum wage hike or a new voting rights law.

A major reason why is that it is sometimes possible to bypass a filibuster of spending legislation through a process known as “budget reconciliation,” but reconciliation cannot be used to regulate. So presidents who wish to accomplish anything at all in Congress must limit their ambition to taxing and spending unless they can convince their opposition to play ball. Parties try their best to get creative within those categories (and sometimes succeed), but it is a huge constraint on policymaking.

Yet, while McConnell essentially eliminated Congress’s ability to regulate, the Republican Party has still enjoyed tremendous regulatory policymaking success over the last decade or more. And the reason why is that Republicans don’t need a functioning Congress to set policy, so long as they control the courts.

The Supreme Court is the new legislative branch

While McConnell was busy cutting Congress out of the policymaking process, a Supreme Court dominated by Republican appointees racked up an impressive array of conservative policy victories.

The Court dismantled much of America’s campaign finance law. It neutralized key provisions of the Voting Rights Act, allowed red states to opt out of Obamacare’s Medicaid expansion, gave religious conservatives a sweeping new right to defy federal and state laws, sabotaged unions, laid waste to US gun laws, abolished affirmative action at nearly all universities, and eliminated the constitutional right to abortion.

Perhaps most significantly of all, the Court has rapidly consolidated power within itself, at the expense of the two elected branches of government. In many existing federal laws, for example, Congress delegated significant policymaking authority to federal agencies such as the EPA or the Department of Labor. But the Supreme Court gave itself a largely limitless veto power over any of those agency regulations — as long as five justices deem an agency’s action to be too significant.

And so the Supreme Court is now the locus of policymaking in the United States.

This happened in no small part because of McConnell’s Senate leadership. Under President Barack Obama, McConnell’s Republican caucus aggressively blockaded judicial nominees, including holding a Supreme Court seat open for more than a year until Trump could fill it with the archconservative Justice Neil Gorsuch.

Then, once Trump came into office, McConnell transformed the Senate into a factory that rolled out newly confirmed judges almost as fast as the Trump White House could find conservatives to nominate to the bench. The result is a judiciary that routinely engages in political hardball to advance the GOP’s policy priorities.

With the 2024 election looming, there is good reason to fear that Trump may prevail and do irreparable damage to US democracy during a second term. But McConnell deserves as much credit for America’s democratic decline as Trump.

It was McConnell, after all, who enabled a wholesale transfer of power away from the people’s representatives, and toward GOP-appointed officials who serve for life.

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