Mitch McConnell took plenty of grief last weekend for the Patriot Act fiasco, after the Senate failed late Friday night to adopt any option for reauthorizing several of the law's provisions. They are set to expire on Sunday night unless Congress acts.
At issue is whether these parts of the act will be retained as is, or whether the Senate will go along with House-passed “USA Freedom Act” reforms (see here for details on the bills). McConnell, knowing he didn’t have the votes for a full ”as is“ extension, sought a two-year patch. Opponents of the current Patriot Act, however, pushed for a vote on the House's USA Freedom Act, which McConnell and most Republicans then blocked by filibuster.
McConnell’s subsequent option for keeping the law as it stands now failed to get a simple majority. His attempts to get even shorter extensions by unanimous consent were blocked as well.
As a result, the Senate will cut short its weeklong Memorial Day recess and return for a session this Sunday to try to sort out the mess before the provisions expire.
Did this chain of events constitute ”a wreck of promises made by McConnell on how a renewed Senate would operate,” as the New York Times summarized it?
It isn't that simple. What the episode demonstrated is that a chamber in which everything is filibustered just doesn’t work. The option in this case of accepting the House’s bill had plenty of votes (57) to pass. But it didn't have the supermajority of 60 votes needed to defeat a filibuster.
True, the Senate has traditionally been run in part by supermajority, requiring senators to compromise and cut deals to get anything done. Until 1993, plenty of bills and amendments passed with only simple majorities. A 57-42 margin for the USA Freedom Act would have been more than enough. The idea that all major bills would need 60 votes to succeed dates to the beginning of Bill Clinton’s presidency. And McConnell, when he was minority leader, was the one who proclaimed and enforced a 60-vote Senate after Barack Obama was elected in 2008.
In the long run, this system won’t hold. If the minority insists on fully exercising its right under current rules to require 60 votes for everything, the majority will eventually impose new rules – as Democrats did in October 2013 on executive-branch and judicial nominations. And it’s hard to blame the now minority Democrats for using the rules the same way McConnell did. Unilateral disarmament isn’t a winning parliamentary strategy.
In other words, McConnell as majority leader isn’t at fault for Senate dysfunction now, just as Harry Reid wasn’t responsible for Senate dysfunction in the previous few years. But McConnell can be blamed for abusing the rules when he was in the minority.
On Twitter, Congress scholar Steven Smith put it well: “McConnell blamed for chaos in Senate. Chaos expected; blame justified for his promise that his Senate would be different than Reid's.”
Expect the chaos to continue as long as an unreformed 60- vote Senate continues.
To contact the author on this story: Jonathan Bernstein at firstname.lastname@example.org