It’s like solving a Rubik’s cube, Mitch McConnell says.
Turn the bill this way, turn it that way, plead, persuade, threaten, bargain — until 50 out of 52 Republican senators are won over.
If he can pull off that fiendishly difficult task, he wins.
His prize? The federal government will spend hundreds of billions less on health care. Spending on Medicaid, the main program covering low-income Americans, will fall dramatically. Millions of people — tens of millions, by the latest estimates — will lose their health insurance. Years more instability and bitter political conflict over health care will ensue.
And the Senate majority leader would get a historic legislative achievement to his name. “Every Republican senator has been elected or reelected on repealing Obamacare. And he’s a guy who wants to win,” one McConnell insider told me.
But the cost will be that the legislative body he leads and has long claimed to deeply value will be changed forever.
That’s because the tactics McConnell is using to get his win — which have entailed previously unimaginable amounts of secrecy, speed, and utter disregard for public opinion — are a blueprint that future Senate majorities will surely use for their own purposes.
“McConnell has unleashed a whole series of forces that ultimately could really transform the Senate in a bad way,” says Norm Ornstein of the American Enterprise Institute. “And if these tactics succeed, they’re going to be emulated.”
This is ironic because McConnell has long claimed to have deeply held beliefs about the unique role the Senate should play in American politics.
Because a simple majority is not enough to get things done in the Senate, the chamber is a “moderating institution” that should “keep the government from swinging between extremes as one party loses power and another gains it,” he wrote in his memoir, The Long Game.
“When the Senate is allowed to work the way it was designed to, it arrives at a result that’s acceptable to people all along the political spectrum,” McConnell argued in a major 2014 speech. But if it is used as “an assembly line for one party’s partisan legislative agenda,” then the consequence would be “instability and strife” rather than “good, stable law.”
The speech was titled “Restoring the Senate.” Instead, McConnell’s legacy may be breaking it.
What does Mitch McConnell want?
If you ask his critics on both the left and right, there’s no mystery to what ultimately drives the Senate majority leader.
“The cardinal rule of McConnell is he will do anything to acquire more power, or to achieve an outcome he thinks achieves his political interest,” says Adam Jentleson, a former aide to ex-Democratic leader Harry Reid.
“I don’t think he’s a conservative; I think he’s a transactionalist. I think he wants to keep the title of majority leader,” says Jason Pye of the conservative activist group Freedomworks. “His vested interest is taking power.”
As for McConnell’s own view? In his memoir, he’s surprisingly candid: He mainly got into politics because of ambition.
“The truth is that very few of us expect to be at the center of world-changing events when we first file for office, and personal ambition usually has a lot more to do with it than most of us are willing to admit,” McConnell writes. “That was certainly true for me, and I never saw the point in pretending otherwise.”
Indeed, he writes that very quickly after he joined the Senate representing Kentucky in 1985, he set one main “goal” for himself: “It was the majority leader’s desk I hoped to occupy one day.”
A gig as head of the GOP’s Senate campaign committee in the late 1990s helped get him close to the party’s major donors, and helped ensure many senators owned him favors. An outspoken stance against new campaign finance restrictions won him gratitude from many Republicans who feared such restrictions would hurt their party’s fundraising.
And a fortunate sequence of events — GOP Whip Don Nickles being term-limited out of that job in 2002, GOP Leader Trent Lott blowing up his career by speaking nostalgically about a racist presidential campaign that same year, and Lott’s successor Bill Frist’s decision not to run for reelection — cleared a path for McConnell, putting him in line to take over his party’s Senate leadership after 2006.
But there was a problem: The Republican Party’s image had been badly damaged by President George W. Bush and his Iraq War, and the GOP was in danger of losing its Senate majority.
In public, McConnell remained a loyal partisan, and publicly excoriated Democrats for wanting to “retreat.” In private, though, he sought a one-on-one meeting with Bush, warned him that Republicans were headed for defeat in the midterms, and urged the president to start withdrawing troops from Iraq to help the party’s chances.
That’s according to Bush’s own memoir, Decision Points, and the former president’s decision to include such an unflattering anecdote about his own party’s Senate leader is remarkable. “I made it clear I would set troop levels to achieve victory in Iraq, not victory at the polls,” Bush writes.
McConnell badly wanted to climb that last rung and become majority leader, and he was willing to go very far indeed to make that happen. But it didn’t happen — his party lost the Senate, and he would start his stint as top Senate Republican with only a minority to lead.
Over the next eight years, McConnell would struggle with another Rubik’s cube of sorts: How could he best use his powers in the minority to win the majority?
His twists and turns of that cube would reshape how American politics worked.
In 2008, with Democrats controlling every lever of power, he quickly calculated he had little to gain from helping his opponents’ agenda become law.
The sympathetic view of his actions is that he concluded Democrats were exploiting the crisis to ram through a liberal agenda the country didn’t support — and decided to fight back.
A more cynical interpretation is that he realized that in a political system increasingly polarized along party lines, the GOP had nothing to gain from helping the Democrats successfully govern the country — and much to gain from his electoral opponents’ failure.
Whatever the case, he had the perfect tool with which to slow Democrats’ work to a crawl: the Senate filibuster.
McConnell’s minority filibustered to try to block not only controversial bills and nominations but also uncontroversial ones. The filibuster became an omnipresent threat through which McConnell could extract concessions, delay action, or waste precious Senate floor time. “He ramped up the tactics of mass obstruction in a way we had never seen before,” says Ornstein.
To prevent Democrats from getting the 60 votes they needed to override a filibuster, McConnell had to keep his Republicans unified in opposition — especially once the Affordable Care Act began moving through the chamber.
McConnell writes in his book that he “didn’t want a single Republican to vote for” the bill because “it had to be very obvious to the voters which party was responsible for this terrible policy.” For months, he continued, his efforts to ensure every Republican voted no “consumed nearly all of my time.”
From Democrats’ perspective, McConnell forfeited the opportunity to help shape, and did everything he could to block, legislation that would help millions of uninsured Americans — all to align himself with the energized conservative base that had come to loathe Barack Obama. “The single most important thing we want to achieve is for President Obama to be a one-term president,” McConnell infamously said in October 2010.
And yet some conservatives still wondered whether he could have done more to stop the bill from becoming law. “We negotiated unanimous consent agreements [to let the Senate function] every day” rather than trying to “aggressively disrupt Reid’s process,” says James Wallner, a former Senate and Heritage Foundation staffer. “All McConnell cared about, it seemed to me, was keeping all Republicans against the bill. He is focused primarily on elections.”
The Affordable Care Act passed during a brief window of opportunity when Democrats had 60 senators. It also helped contribute to sweeping Republican gains in the 2010 midterms — albeit gains that weren’t large enough to give McConnell has long-coveted majority just yet. That Rubik’s cube wasn’t yet solved.
Managing a more extreme party
Republicans got part of what they wanted. They controlled the House of Representatives starting in 2011. But the new class of conservatives was more extreme than the ones McConnell had worked with over the years — and this presented him with a problem.
Despite lacking control of the presidency and the Senate, these new conservatives and the activists backing were demanding sweeping change — demands that, in McConnell’s views, were often unrealistic. So McConnell took on a new legislative role, of managing his party’s extreme elements, so he could better help them win the next election.
Trey Grayson, a former Kentucky secretary of state who was allied with McConnell, sums it up this way: “I think with him, there’s this realization: ‘Okay, the Republican electorate is here. I’m gonna have to adapt to these folks. I’m gonna give them some rope to run with. And I’ve got to make sure they don’t hang themselves with it.”
It was a complicated dance, because McConnell also wanted to remain on the good side of conservative base elements that had flexed their muscles in several recent primary fights. So often — in the debt ceiling fight of 2011, the fiscal cliff of 2012, and the government shutdown of 2013 — he’d hang back in the opening rounds of conflict. Only later would he step in to cut deals that preserved the status quo after the House’s hardline tactics had clearly failed.
“He knew it would be a disaster to breach the debt ceiling. He knew it would be a disaster to go over the fiscal cliff. He knew it would be a disaster to shut down the government, though he was unable to avoid that one,” says Jentleson, the former Reid aide. “He thought making deals in those cases were good politics.”
But though his tactics on legislation shifted, his approached to nominations remained the same. Since only the Senate gets to approve appointees, Republican filibusters remained the only tool the GOP had to block any nominees they found objectionable. McConnell therefore ramped up his use of holds and filibusters ever further.
According to a 2013 Congressional Research Service report, the Senate had attempted to overcome a filibuster on nominations 168 times since 1949 — and 82 of those attempts, nearly half of the total, had occurred during Obama’s presidency alone. For the DC Circuit Court of Appeals in particular — which has jurisdiction on many regulatory cases impacting businesses, and which the GOP therefore very much wanted to keep in conservative hands — Republicans made clear they’d block any Obama nominee.
All this eventually proved to be a bridge too far for Democrats. In 2013, Harry Reid used the “nuclear option” to ram through a Senate rules change that would eliminate the filibuster for all nominations except Supreme Court picks. McConnell still had certain tactics he could use to delay appointments, but he had been stripped of his best tool for blocking them outright.
It was this that spurred McConnell to deliver his January 2014 speech on “Restoring the Senate.” In it, he made his case for the chamber’s importance as a consensus-building institution and laid out what he’d do differently if he were in charge. “When the majority leader decided a few weeks back to defy bipartisan opposition by changing the rules that govern this place with a simple majority vote, he broke something,” McConnell said.
In contrast, he vowed to restore the Senate to its former glories should the GOP win the majority. Under his leadership, bills would go through the traditional committee process. If he proposed a sweeping bill and couldn’t get any Democratic support, he’d conclude that “maybe this isn’t such a great idea.”
He finished with a stirring exhortation. “Restoring this institution is the only way we’ll ever solve the challenges we face. That’s the lesson of history and experience. And we would all be wise to heed it.”
The Garland gamble
Republicans finally took the Senate in the 2014 midterms, and at long last made McConnell majority leader — just in time for a crisis.
That crisis was the death of Justice Antonin Scalia during Obama’s final year as president. If Obama got to fill that vacancy, liberals would get their first majority on the Court in decades. Conservative activists who’d long deeply cared about the Court’s makeup — some for religious reasons, others because they disliked big government — were terrified.
McConnell’s audacious response — preventing the Senate from even holding hearings on Obama’s nominee, Merrick Garland, and then ramming through a rules change to confirm Donald Trump’s nominee, Neil Gorsuch — will play a central role in his legacy.
“The best of McConnell’s legacy from my perspective is probably going to be Gorsuch,” says Jason Pye of Freedomworks. “He took a lot of pressure on [blocking Garland], and I commend him for it.”
But though many liberals believe McConnell pulled off a masterful heist here, in many ways he was merely accelerating the inevitable.
If the Senate did vote on Garland in 2016, Republican senators almost surely would have voted him down — just as Democrats would have should a similar situation have arisen in a GOP president’s final year. This was, after all, a monumentally important swing vote seat that could tip the balance on the Court on a host of issues. Both parties faced immense pressure to secure it.
And as far as eliminating the filibuster for Supreme Court nominations, Democrats were preparing to do just that while they expected to win the 2016 election. (Indeed, blockading Garland was a risky gamble for this reason, since Hillary Clinton was expected to appoint a more liberal choice if she won.) In reality, judicial nominations had become so polarized and politicized that the supermajority requirement couldn’t last.
Still, McConnell managed to overdeliver for his base by refusing to even hold hearings on Garland’s nomination. Many other politicians in his position would have at least gone through the motions of considering the president’s pick. McConnell didn’t bother to pretend.
His legacy here is a further politicization of the judiciary — he has set the precedent that if the Senate and presidency are controlled by opposite parties, the Senate doesn’t even have to consider the president’s pick. But that may be a legacy he can live with, considering he successfully kept the Supreme Court of the United States in conservatives’ hands, perhaps for decades.
The biggest test yet: the health care bill
All this time, however, McConnell has still lacked a transformative legislative achievement to his name — which brings us to the Senate health care bill.
Sold as a “repeal and replacement” of Obamacare (a slogan invented by one of McConnell’s staffers back in 2010), the core of the latest version of the Better Care Reconciliation Act would cuts of hundreds of billions of dollars of federal government spending from the health care system. Medicaid, the program covering millions of low-income Americans, would be hit hardest.
McConnell would also reveal many of Republicans’ promises on health reform to be utterly fraudulent. He himself has criticized Obamacare for failing to cover enough Americans, and for sending premiums and deductibles soaring. Yet according to the Congressional Budget Office’s analysis, the Senate’s bill would lead to 22 million fewer Americans being insured by 2026, and send premiums and deductibles so high that “few low-income people would purchase any plan.”
Meanwhile, many conservatives are disappointed with the GOP bill for a different reason — they believe it leaves far too much of Obamacare in place. That’s because, despite the dramatic Medicaid cuts, the bill leaves in place much of the individual insurance market structure the Affordable Care Act created, complete with regulations on what plans can be sold and income-based subsidies.
“I don’t think anybody can honestly call this bill Obamacare repeal,” Pye told me after McConnell released his initial discussion draft (which has since been changed). “At most it’s a Medicaid modernization bill. But he said we’re gonna repeal Obamacare ‘root and branch’; that was the promise for the better part of a decade. That’s not what we’re doing here. We’re fiddling around the edges.”
Yet in shying away from full repeal, McConnell is merely going along with the desires of most of his Republican senators — who fear doing away with popular Obamacare planks such as its protections for people with preexisting conditions.
In describing how McConnell legislates, his former aide Josh Holmes recently told CNN: “The product is always a direct reflection of the views of his conference — not his own dictation.”
McConnell appears to have calculated that the only way he can pass such a controversial bill is using a remarkable process in which he relies on stealth and speed. He’s bypassed the two committees with jurisdiction over health issues, crafted the first (and now the second) Senate bill behind closed doors, is ignoring the bill’s dramatic unpopularity, and hopers to quickly bring it to a vote and strong-arm his senators into passing it on party lines.
“I don’t think the process in and of itself is good for the institution,” Wallner, the conservative former Senate and Heritage Foundation staffer, says. “I think it’s doing long-lasting damage to the institution as part of an ongoing trend where things are getting worse.”
Indeed, all this violates promise after promise McConnell made in his 2014 speech about how he’d run the Senate — that he’d restore the traditional committee process, and that he doesn’t think major, transformative legislation should be written behind closed doors and passed with only partisan support.
Regardless of how things turn out, he’s already matched and indeed far exceeded all of his criticisms of the process Democratic senators used to pass the law in the first place. And he’s set new precedents that future Senate majorities could use to justify ramming their own controversial new laws through budget reconciliation.
“To be a statesman, you have to win the election”
And yet except for Gorsuch’s confirmation and the as-yet-unresolved fight over the health care bill, the Senate in the six few months of Donald Trump’s presidency has been surprisingly sleepy.
Republicans have spent time confirming President Trump’s nominees, which they can do without Democratic support. They’ve used a special filibuster-proof process to strike down several regulations that were passed late in President Obama’s term, the window for which has now expired. And they’ve worked on bipartisan bills, like an omnibus spending package and a toughening of sanctions on Iran and Russia.
“That’s not a lot to go on in six months,” admits the McConnell insider. “It has been a very kind of monotonous and thin slice of stuff this year.”
This is the case for one main reason: the filibuster, which is still entirely intact for legislation.
Because the GOP only controls 52 Senate seats, they cannot beat a filibuster, unless they use the special limited budget reconciliation process — or unless they win the votes of at least eight Democrats.
As a consequence, major conservative bill after major conservative bill has passed the House, only to go nowhere in the Senate — hamstringing Republican ambitions for sweeping legislative change in this rare period of unified party control of Washington. Trump, for one, is frustrated:
either elect more Republican Senators in 2018 or change the rules now to 51%. Our country needs a good “shutdown” in September to fix mess!
— Donald J. Trump (@realDonaldTrump) May 2, 2017
The U.S. Senate should switch to 51 votes, immediately, and get Healthcare and TAX CUTS approved, fast and easy. Dems would do it, no doubt!
— Donald J. Trump (@realDonaldTrump) May 30, 2017
But McConnell has shown no inclination to ditch the filibuster for legislation. “That will not happen,” he said in May, after Trump first tweeted on the topic. “It would fundamentally change how the Senate has worked for a very long time.”
Perhaps McConnell is preserving the legislative filibuster because he or his backers think doing so better serves conservatives’ interests in the long term — either by blocking liberal laws in times of Democratic majorities or by forcing whatever gets through a Republican House to moderate. Or perhaps he simply knows he couldn’t win enough support for this rules change.
Whatever the case, this is one important example where McConnell has defied the cynical liberal caricature of him — for now, at least. (Many liberals long predicted that as soon as Republicans had unified control again, they’d eliminate the filibuster.) Instead, his Senate has ended up as the only bulwark against controversial conservative bills, and forced the GOP to rely on a reconciliation-or-bust strategy for major change.
Despite all this, McConnell’s flouting of so many Senate norms to advance Republicans’ sweeping health bill may be doing irrevocable damage to the chamber. Whether he succeeds or fails in passing the health bill, future majorities have a precedent for ramming partisan legislation crafted in secret through the budget reconciliation process quickly. That is one major legacy he has already cemented. The loss of health insurance for tens of millions of Americans may yet be another.
In many ways, though, the majority leader is merely following his party. “If the Republican Party were composed of different elements today — let’s say it looked more like the GOP of the 1980s — I think McConnell would be a different kind of leader,” says Trey Grayson, the former Kentucky secretary of state.
“He wants to be known as a great leader. And he knows to be remembered as a great leader in history, he probably has to achieve some things in a bipartisan manner to solve big problems.
“But he’s also a realist. And he told me once, ‘To be a statesman, you have to win the election.’”