Harris Will Be McConnell’s Boss: Hardball Is Hard

by Neil H. Buchanan

More than anything else, Mitch McConnell's actions as Senate Majority Leader have demonstrated that he will do everything that the law allows him to do.  Everything.
It does not matter whether there is a standard, norm, or tradition that he is breaking.  It does not matter whether he loses a few news cycles to hostile coverage of his shamelessness.  It does not matter whether he completely contradicts something that he said or did in the past.  The only thing that matters is that he will maximize his side's advantage under the most extreme reading of the law's bare limitations.
Now, McConnell faces the prospect of serving under a President and Vice President who are Democrats.  McConnell and the Republicans are already making it clear that they will be as obstructionist as possible, gumming up appointments to Biden's cabinet and possibly blocking all of his judicial picks.  Democrats are understandably eager to win the two Georgia runoffs for U.S. Senate seats, which would give control over the Senate to the Democrats under new Majority Leader Chuck Schumer.  Without a Democratic Georgia sweep, McConnell would hold all the cards.

Actually, that is only true if the Democrats let it happen.  Under the McConnell Theory of the Political Universe, where only the most rock-solid legal principles are binding, Democrats could control the Senate even when they are in the minority.  How would that work?  More importantly, would Democrats do what is needed, and how would Republicans react?
Before getting there, consider the most obvious example of McConnell's approach to bare-knuckle power politics: his hijacking of the judicial appointments process.  The "advise and consent" clause of the Constitution (Article I, Section 2, Clause 2) states that the President 
"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law ... ."
Because only treaties require a two-thirds majority, it is possible within the Constitution to confirm judges and other officers with less than (or, for that matter, more than) a two-thirds vote.  What McConnell noticed, however, was that the Constitution does not define what "advice and consent of the Senate" means, and it certainly does not seem to require the Senate to hold hearings or take a vote on a president's nominees.  Hence, Judge Garland never became Justice Garland.  Pretty clever of ol' Mitch, eh?

As I have argued, however, that very ambiguity in the constitutional language could be read to undermine McConnell's position.  A president who is willing to join McConnell in playing what Mark Tushnet famously labeled "constitutional hardball" could say that the Senate's power to set up its own rules of procedure does not supersede the advice-and-consent clause, which merely gives the Senate the right to advise the president and then to express their consent or lack thereof.  If the Senate refuses even to take a vote, they can be deemed by their silence to have consented.  "Hey," says the President, "I would have listened if you had rejected my nominee, but you never did so.  I guess you have no problem with him."

Would that be an aggressive position?  Sure.  Is it obviously in tension with centuries of tradition?  No question.  Is it blatantly in contradiction with the text of the Constitution?  Not at all.  Even if we read the word "advice" to mean something informal (which might not be the best way to proceed, but whatever), "consent" can be implied by official inaction.

But as I suggested above, there is an even more straightforward way in which the Democrats can take control of the appointments process (and other Senate business as well) by throwing a different hardball at the Republicans.  A friend passed along a short op-ed from a regional newspaper that pointed out that the position of Senate Majority Leader appears nowhere in the United States Constitution.  Indeed, the position does not even exist under the rules of the Senate.  It is purely a matter of tradition dating to 1937, which means that we made it through almost a century and a half without even having a Senate Majority Leader to dictate -- and I use that word, "dictate," quite deliberately -- what happens on the Senate floor.

The only binding constitutional provision says that "The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."  By tradition, the Vice President does not preside, granting powers to the Senate's majority party to choose a leader and to pass rules that delineate his powers.  There is no reason why those powers have to include the ability to bottle up legislation, but current rules have allowed that travesty to continue.  It must stop.

Vice President Harris can give "priority recognition" to any senator to control the agenda and to schedule floor votes.  She could designate McConnell, but she could also designate Schumer, Tammy Baldwin, Mitt Romney, Lisa Murkowski, or even the newest Senator, Mark Kelly of Arizona.  (Susan Collins would surely be too "concerned" to accept the position.)  Notably, because any attempt to amend the Senate's rules to formalize McConnell's power would have to be brought up for a vote, Harris could prevent that from happening.

What of positive actions that require majority votes, such as judicial appointments?  A super-hardball tactic -- what fans of my generation might call the Goose Gossage high hard one -- would have Democrats refusing to take up judicial appointments and then invoking the silence-is-consent rule to deem the nominees to have been approved; but I am not going there.  What is the process by which a judicial nominee would actually be affirmatively and not passively approved?

The entire point of McConnell's blockade of Garland was to prevent Republicans from having to vote against a moderate, experienced, extremely likable nominee.  Harris could thus simply say that Biden's nominees will all receive votes, and if Republicans can muster 51 votes against any of them, so be it.  The point would be to hold that up-or-down vote, on the record.

This would also apply to extremely popular legislation, such as various gun-related laws (universal background checks, for example) or increasing the federal minimum wage.  McConnell has always blocked such legislation precisely because it might pass.

I can imagine various arguments saying that this strategy is somehow not allowed under even the hardball provisions of the Constitution, but if advice-and-consent can be obliterated, it is difficult to see how any of these other ideas are out of bounds.  But setting all of that aside, what would happen if the Democrats actually did this?  Would it cause so much blowback that it would not even achieve its immediate goals, much less pass some kind of cost-benefit test?

It is possible, even likely, that the so-called Republican moderates -- none of whom are moderate by any metric other than "not exactly as far right as Rand Paul," but I digress -- would be so enraged by Harris's hard pitch that they would simply refuse to vote in favor of anything, even things that they might otherwise support.  Indeed, right-of-center Democrats like Joe Manchin might join them.  This would not change the fact that Harris will be the President of the Senate, but it could make it impossible for the Democrats to get anything passed in in the Senate.

But Democrats are not going to get anything passed with McConnell in charge, so why is that the big concern?  More broadly, one thing we know from recent experience is that outrage fades, and people get back to normal surprisingly quickly.  After Bush v. Gore, Professor Bruce Ackerman argued that Democrats should refuse to vote for anything that would last beyond Bush's term in office, most obviously judicial appointments.  In 2018, people talked about impeaching Brett Kavanaugh for lying in his confirmation hearings.  None of that happened.  People grumble and move on.

Even so, this would be very off-brand for Joe Biden.  Would he agree to have Kamala Harris do something so unprecedented and divisive?  Not without being provoked.  But if we know one thing about Republicans, especially post-2016 Republicans, it is that they cannot stop themselves from abusing and exploiting any power that they can grab.  The would-be 2024 Republican presidential nominees are already falling all over themselves to prove that they can be completely uncooperative with Democrats.  Many will treat Biden as illegitimate, purely to ingratiate themselves with their fact-resistant voters.  If Biden can be pushed over the edge, these are just the guys who can gleefully do it.

In any case, there is a very good argument that the Senate's tradition of allowing one person to dictate (there is that word again) the agenda of half of the legislative branch must stop.  Difficult public votes are -- or should be -- part of a politician's life.  Biden surely does not want to upend political norms, but those norms are being trashed every day.  He seems to understand this, and even if he is hesitant to retaliate in kind, knowing that he has some fast-pitch choices of his own can strengthen his bargaining position.