Particularly since Republicans lost the House, the Senate GOP has shied away from trying to advance legislation, which can still face a 60-vote filibuster threshold. Instead, Republicans have concentrated on approving influential Circuit Court of Appeals nominations that they can win on a simple majority.
Obama faced brutal resistance to his legislative agenda, resulting in large numbers of filibusters that impeded his administration’s goals. A Senate Democratic aide said: “This is the Senate McConnell wanted and designed when he decided to obstruct for no reason other than achieve his top priority of denying President Obama a second term.”
Senate Republicans have made incremental changes to Senate rules to speed confirmation of nominees, but it’s become essentially impossible for Trump to fully staff his administration. Still, there are plenty of positions for which Trump has declined to nominate a permanent nominee anyway, and by his own admission the president is comfortable with the media vetting — and occasionally tanking — his nominees.
But in the new normal for Trump nominees, five Cabinet secretary positions, the director of national intelligence and the budget director have all faced filibusters for the first time in their history, Republicans point out.
Since the Senate returned from a coronavirus-inflected recess in May, it’s passed legislation to renew federal surveillance powers, held a veto override vote on a War Powers resolution and approved the House’s bill to ease restrictions on small-business loans. But mostly, the focus has been on nominees: John Ratcliffe to be director of national intelligence and Brian Miller to be inspector general for pandemic recovery, along with five district judges. All faced filibusters.
“As Mitch McConnell said he wants to leave no vacancy unfilled, and especially if it’s a judicial vacancy, so he is really delivering on that promise,” said Sen. Mazie Hirono (D-Hawaii). “But he’s filling the judiciary with all of these ideologically right-wing people.”
It’s not only about judges. Democrats also view many of Trump’s executive branch nominees as unqualified. Every Democrat except Sen. Doug Jones (D-Ala.) voted against Miller’s confirmation.
“Even though I have questions and concerns like everybody else does, I thought he had at least in the past demonstrated his independence in the role of inspector general,” said Jones, who declined to criticize his party for forcing so many procedural votes. “That position needs to be filled.”
But procedural votes have consumed the Senate: The current Congress has held the most ever, with seven months to go. Meanwhile, amendment votes continue to lag previous Congresses. Most big bills are written behind closed doors behind party leaders.
Despite evidence to the contrary, senators in both parties deny that the Senate is fundamentally broken, and Democrats say things will be different under Biden. They point to the bipartisan coronavirus rescue package passed 96-0 in March to highlight that Democrats and Republicans still work together when they need to.
But the steady increase in cloture votes is only the latest example of decline in a body that historically has prided itself on bipartisanship. While Biden has pledged for a return to working across the aisle, senators nevertheless expect that Republicans may exact retribution if Democrats win in November.
“Sometimes when you do stuff like that, you could expect it dished out in return,” said Sen. Mike Braun (R-Ind.). “I don’t like that about the place in general, but sadly that’s the way it works.”
That could lead to greater retaliation. If Biden faces the same delays to his nominees and legislative agenda that Trump has faced, Democrats could change the Senate forever — eliminating the legislative filibuster or upending other rules to overcome GOP obstacles.
“Democrats would be insane to allow this to continue. We have to level the playing field for the people,” said Sen. Jeff Merkley (D-Ore.). “We’re absolutely not giving McConnell a veto against the priorities of Americans.”