Want to really get Mitch McConnell’s blood pumping? Pick your favorite cliché about time being the enemy. (Go ahead. I’ll wait.) Feel free to quote anyone from Charlie Chaplin to Evita Peron to Jim Croce. Now text or tweet that nugget right on over to the Senate Majority Leader’s office. The unflappable McConnell may not show his agita, but I guarantee you the swift and ruthless running of the clock is among his least favorite topics these days.
Of all the hurdles confronting lawmakers with big plans, time may be the most vexing. President Trump is all over the Republican Congress to Make America Great Again right now. (“Enough all-talk no-action,” he reportedly told his members Wednesday at their retreat in Philly.) But no matter how much the new president fancies himself a Man of Action––and no matter how fired up the majority is to realize its conservative vision––there is only so much anyone can do to speed things through Congress, especially in the Senate. (Witness the not-so-swift progress of Trump’s Cabinet picks.) Talking with Republican folks on the Hill in recent weeks, they invariably cited time as the biggest impediment to getting stuff done.
This is, to some degree, the way the Senate was designed to roll. The rules of the upper chamber aim to keep the legislative process slow and de-li-ber-a-tive. (Just moving a bill into conference committee requires three separate motions, any or all of which can be filibustered.) This means that savvy minority leaders who know how to work the rules have a near-infinite array of tools for bogging down Senate operations. The big question then for Chuck Schumer & Co. is how aggressively they are willing to drag their feet––and how much they can get away with before the majority hits back.
“Everyone always underestimates the power of the calendar,” said Jim Manley, a former Senate Democratic leadership aide who spent more than two decades on the Hill. “Under the rules of the Senate, days quickly turn into weeks, which can turn into months, with not a lot of action being taken.”
“It’s such a morass,” said Ian Millhiser, a senior fellow with the left-leaning Center for American Progress, who has written much on the mechanics of congressional obstructionism. “It makes you want to cry.”
By far the most infamous stalling mechanism is the filibuster, which prevents the Senate from voting on an issue without the support of at least 60 members. Senators really love the filibuster––possibly more than they love their spouses, their children, their donors. (OK. Maybe not their donors.) But in some cases, a filibuster is not allowed (as with the confirmation of most presidential appointees), too politically fraught (think: Ted Cruz reading Green Eggs and Ham), or otherwise unadvisable. No matter. Lesser-known foot-dragging tactics include:
Forcing a roll call vote (versus a quickie voice vote) on even routine business.
Demanding extra paperwork for nominees, along with extra time to peruse said paperwork.
Introducing multiple “points of order” claiming that the majority is somehow acting in violation of Senate rules. (Even totally meritless points of order are terrific time sucks.)
Requiring bills or amendments to be read aloud (a rule routinely waived to keep the entire body from grinding to a halt). In 2009, the Republican minority in both chambers used this gimmick on a couple of memorable occasions. Millhiser recalled, “One of the most bonkers parts of the Affordable Care Act debate was when Republicans threatened to, every time a new amendment to the bill came up, require the whole thing to be read aloud on the senate floor.” (Senate clerks got about three hours into a 767-page amendment by Bernie Sanders before Sanders pulled it.) That spring, when Republicans on the House Energy and Commerce Committee threatened to demand the reading of a 900-page climate change bill, Democrats hired a professional speed-reader to stand by, just in case.
Committees can be monkeyed with as well. Senate committees cannot conduct business without a quorum of members present. (What constitutes a quorum varies by committee.) If they get desperate, Democrats could start skipping out on meetings, stalling the progress of nominees and legislation alike.
Alternatively, Minority Leader Chuck Schumer could upend the scheduling of all such meetings. There has long been a rule stipulating that, without the express consent of both the majority and minority leaders, neither committees nor subcommittees can meet “after the conclusion of the first two hours after the meeting of the Senate commenced and in no case after the two o’clock postmeridian.” (Once upon a time, important debates actually took place on the Senate floor, so members were discouraged from missing the action.) If Schumer wanted to be a stickler about scheduling, he could throw the system into chaos.
Of course, for every delay the minority attempts, the majority leader has an available countermove. If Schumer shut down afternoon committee meetings, McConnell could have the Senate convene later so that the committees could meet in the morning. Likewise, if Democrats play around with the filibuster too much, McConnell could get bent enough to put restrictions on it, as Democratic Leader Harry Reid did in 2013. (Most of those limits lasted only through the end of that Congress, but the ban on filibustering most presidential nominees endures.)
Sure enough, lately McConnell has been talking about extending the Senate work week to include more late nights and Fridays, as a way to combat Democrats’ stalling. (Currently, a typical Senate week runs from late Monday afternoon through Thursday evening.) Of course, McConnell made similar noises when he took over as majority in 2014, and nothing much changed. (Senators don’t want their weekends wrecked any more than the next schmuck.) But McConnell’s threat to Democrats is clear: You want to play with the clock? Let’s play.
For all the tools at their disposal, Democrats do need to be strategic with their foot-dragging. Not so much out of fear that the opposition will accuse them of obstructionism. (“The lesson from Mitch McConnell is that you can be pretty close to maximally obstructionist and get away with it,” said Millhiser.) But because they don’t want to provoke a damaging backlash, direct or indirect, from the majority.
“One danger in making it too hard to engage in formal processes is that things wind up getting shifted to informal processes,” cautioned Millhiser. For instance, if Democrats started “mucking around with the committees,” majority members might start holding private, unofficial meetings to make many of their decisions about bills.
The higher profile the obstructionism, the greater the risk of serious blowback. Even if McConnell (who knows that no team’s majority lasts forever) didn’t much want to curtail the minority’s privileges, he could nonetheless come under crushing pressure to do so from conservative voters, interest groups, and/or Trump.
But while occasional high-profile battles will be required, for the most part Democrats don’t need to be flashy to run down the clock. Again, Millhiser pointed to the GOP’s 2009 playbook. “For the really high profile stuff, the Republicans weren’t always maximally obstructionist. Most cabinet secretaries got through. Sonia Sotomayor wasn’t filibustered.” Instead, they targeted “appointments like lower court judges and assistant secretaries.” It’s harder to get people “riled up” over that type of low-level stalling, said Millhiser.
Green-eggs-and-ham-type stunts are for lawmakers looking to get famous. But for Democrats serious about stopping the GOP juggernaut, slow––very, very slow––and steady may be the best policy. Forcing extra hours of debate over this low-level appointee or a pointless roll-call vote on that routine motion can chip away at floor time and prevent the Majority Leader from moving on to more significant business without ever rising to the level of genuine outrage.
“Day in day out,” said Jim Manley, “the idea is to gum things up and slow things down.”