The closing weeks of 2021 concluded a year of significant Senate accomplishments amid continued intense partisanship and dysfunction. On December 18, Senator Joe Manchin of West Virginia declared his opposition to President Joe Biden’s $1.7 trillion Build Back Better “social infrastructure” legislation, bringing a months-long drama—“will he or won’t he?”—to a crashing end. Manchin’s decision, announced on Fox News Sunday, ended Biden’s first year with a crippling defeat, leaving the president’s historic agenda of social legislation and measures to combat climate change unrealized.1 Manchin’s decision also cast doubt on Biden’s reputation for political leadership, negotiating skill, and special relations with the Senate. It was likewise a grave blow to Senate Majority Leader Chuck Schumer, who had brought Manchin into the Senate Democratic leadership team and spent countless hours in discussions with the West Virginia senator about what he wanted and needed in the legislation to bestow his support.
This outcome was unexpected. In early November, Biden, Schumer, and Speaker of the House Nancy Pelosi had worked intensively to broker a difficult deal between moderate and progressive Democrats to break the logjam that had prevented the infrastructure bill, which passed the Senate in August, from being considered in the House.2 The House progressive caucus had refused to advance the infrastructure bill to a floor vote without a guarantee that the Build Back Better legislation would get through the Senate. After weeks of agonizing deliberation, the progressives changed their position and consented to the infrastructure bill being passed by the House. They put their trust in Biden and Schumer, who had expressed confidence that they could unite all fifty Senate Democrats to pass this bill that covered the progressives’ key priorities. A remarkable—and probably unprecedented—situation followed. Manchin, holding the decisive vote, made a series of statements blasting virtually every aspect of the bill, while Biden and Schumer expressed confidence that the Senate would pass the legislation by Christmas.
Biden, Schumer, and the Senate Democrats understood that Manchin (and, to a similar extent, his Arizona colleague Kyrsten Sinema) would use the power of their position to force changes in the legislation, but they also expected that once this was done, Manchin would endorse the package. “He has made some dramatic changes in this bill and its contents and its total,” observed Senator Dick Durbin, the Democratic whip. “I’ve told him ‘Joe, you’ve got your mark on this bill, now close the deal.’ I still feel that way.”3 Unfortunately for the Democrats, Manchin was not playing by the rules of politics as usual.
At a critical juncture, the Democrats found the deciding vote in the hands of the most conservative Senate Democrat, from a state that voted for Donald Trump by thirty-nine points in 2020, and who was not only the chairman of the Senate Energy Committee but also a representative of coal and natural gas interests (West Virginia’s and his own personal holdings). Manchin demanded, and got, the elimination of the centerpiece of Biden’s proposals to meet America’s climate objectives: the clean energy standard, which would have required electric power plants to begin converting from fossil fuels to renewables. He then went on to attack three other major climate provisions: the curb on methane emissions, the tax credit for the buyers of electric vehicles, and the ban on offshore drilling.4 He also objected to the child tax credit and the provision of leave for family medical care.5 Manchin repeatedly questioned the cost of the package—certainly a reasonable concern given the soaring rate of inflation and the fact that Congress had already committed to spend more than $4 trillion since the onset of the COVID-19 pandemic.6 But he seemed oblivious to the arguments of prominent economists and policy experts that the legislation would not contribute to inflation and that it would improve the lives of millions of working families, particularly those at or near the poverty line, including many of his constituents in West Virginia, one of the poorest states in the nation.7
Although the press often described him as a “moderate Democrat,” Manchin’s positions and his rhetoric clearly establish him as an extremely conservative Democrat. Months before, he had expressed his opposition to the legislation because he believed it would move America toward becoming “an entitlement society . . . no additional handouts,”8 terms that evoked memories of Republican attacks on welfare recipients. In a statement issued shortly after the Fox News Sunday interview, Manchin said he could not support “this mammoth piece of legislation. . . . I cannot take that risk with a stagging debt of more than $29 trillion and inflation taxes that are real and harmful to every hard-working American at the gasoline pumps, grocery stores and utility bills with no end in sight.”9
History shows that the political stars align only very rarely to allow a Democratic president to push through a far-reaching agenda. Both Franklin D. Roosevelt in 1933 and Lyndon B. Johnson in 1965 had overwhelming congressional majorities, which made the New Deal and the Great Society legislation possible. Joe Biden’s majority was three seats in the House and Vice President Kamala Harris’s deciding vote in the 50–50 Senate. It is fair to ask whether he and Schumer should have recognized this reality and pursued an alternative strategy, breaking the omnibus legislation in separate pieces that would have focused public attention on its popular features, rather than on endless squabbling among Democrats.
In the wake of Manchin’s announcement, Biden and Schumer quickly tried to regroup; the president reached out to Manchin in a phone call that was described as “productive and cordial.”10 Schumer promised that Build Back Better would be debated on the Senate floor early in 2022, after federal voting rights legislation, which would be the Senate’s first order of business. Both the president and the majority leader tried to project optimism, since the centerpiece of Biden’s legislative agenda was at stake; per Schumer’s frequently used refrain, “Failure is not an option.” Tough decisions would have to be made about whether to rewrite the legislation to focus on a few priority areas—supporting working families, securing affordable health care, combating climate change—and funding them long term.11 But the president, the majority leader, and the speaker would face the challenge of keeping the progressives on board if many of their priorities were jettisoned.
As 2021 came to an end, there was only one clear winner: Mitch McConnell. During the summer, the minority leader had led his caucus in helping the Democrats pass the infrastructure bill; with his blessing, eighteen other Republicans joined him along with all fifty Democrats in a major bipartisan accomplishment.12 Later, in an even more challenging situation, McConnell produced fourteen Republicans to adopt a complicated solution negotiated with Schumer by which the Democrats would be allowed to raise the debt ceiling to prevent the government from defaulting, though without any Republican votes.13 And he also won plaudits for allocating some of his own campaign funds to pay for ads encouraging Kentuckians to get vaccinated against COVID-19.14
Former president Donald Trump blasted McConnell for cooperating even in this limited way with Senate Democrats, calling him a weak leader, a RINO (“Republican in name only”), and a “broken old crow” who repeatedly missed chances to block the Democratic agenda.15 Lindsey Graham continued his own incessant commentary, warning McConnell that Republican leaders had to make peace with Trump.16 Yet McConnell followed the course he believed would maximize the chances of Republican success. He wanted examples to show voters that the Republicans were not totally obstructionist. He also believed that when Biden, Schumer, and the Democrats were floundering, he should not get in their way. In an angry, divided country, reeling from nearly two years of COVID-19, where dissatisfaction with the government was at record levels, the party out of power had enormous advantages. And passing major legislation is enormously difficult; obstructionists always have a much easier task. As Sam Rayburn of Texas, probably the most powerful House speaker until Nancy Pelosi, once said, “Any jackass can kick down a barn, but it takes a good carpenter to build one.”17
McConnell had multiple constituencies, but the one that mattered most were the forty-nine other Republican senators, whose loyalty to him seemed unshaken by Trump’s blasts or Graham’s sniping. He worked successfully to maintain unity on the issues of overriding importance to him. On the Build Back Better legislation, Manchin and Sinema became “the deciders” because the Republicans maintained a stone wall of opposition. The “moderate” Senate Republicans such as Susan Collins, Lisa Murkowski, and Rob Portman evinced no interest in legislation that represented the most ambitious effort to counter child poverty and put in place policies that would respond to the increasingly unmistakable, existential threat of climate change. Those Republicans were clearly not “Trumpists,” but they joined McConnell in opposing legislative efforts that would improve conditions in the country, starting with the American Rescue Plan and continuing with Build Back Better, and even Biden’s federal mask mandate.
Similarly, Biden and Schumer struggled to advance federal voting rights legislation, because Manchin and Sinema continued to oppose changing the filibuster rule (or even a narrow carve-out for voting rights). Again, the two Democrats assumed such importance because exactly one Republican—Lisa Murkowski—showed any interest in protecting the right to vote or the integrity of the process of counting the vote.18 Susan Collins, for example, was unmoved by a surge of Republican legislation enacted to restrict access to voting in nineteen states (including efforts to replace nonpartisan election officials with Trump allies) and to allow state legislatures to invalidate election results.19 In Collins’s view, the federal voting rights legislation under consideration by the Senate would constitute a “vast federal takeover of state elections” and was not necessary because Maine conducted clean elections, including early adoption of the innovation of “ranked voting.”20 This was a disappointing response from a senator who had just been comfortably reelected to her fifth term in the United States Senate, with national responsibilities, not the state legislature of Maine.
McConnell found himself on familiar terrain in obstructing a Democratic president with an ambitious agenda during a time of great national need. He was in his element denouncing “the socialist surge that has captured the other side.”21 After Joe Manchin’s break with his Democratic colleagues over the Build Back Better legislation in December, McConnell publicly invited the West Virginia senator to join the Republican caucus, observing that “he is clearly not welcome on that side of the aisle.”22 Republicans attacked Biden for the worst inflation since the 1980s and for mismanaging the pandemic, despite the clear evidence that its spread resulted mostly from unvaccinated populations in states that had voted for Trump and had Republican governors. In a tumultuous political environment, nothing was certain, but from McConnell’s standpoint Biden’s failures would produce Republican victories in the midterm elections, which almost always favored the party out of power.
One wild card was the increasingly focused and intense efforts by the House Select Committee to investigate the January 6 attack on the Capitol. Although McConnell had killed the idea of an independent commission, Speaker Pelosi, undaunted, responded by establishing a select committee, funding it generously, and giving it some bipartisan credibility by including two House Republicans who were unwavering critics of Trump’s role in the insurrection: Liz Cheney of Wyoming and Adam Kinzinger of Illinois. By December, it was clear that the Select Committee, chaired by Benny Thompson of Mississippi and co-chaired by the indomitable Cheney, was deadly serious and conducting a far-reaching and carefully considered investigation. Its work focused not only on the events of January 6 but also on the weeks and months leading up to the insurrection, during which Trump and his allies spread the “big lie” that the presidential election results were illegitimate and took actions to undermine public acceptance of Biden’s victory. Having interviewed more than 250 witnesses, the Select Committee sought criminal penalties for contempt of Congress against Steve Bannon and Roger Stone, two of Trump’s closest outside advisers, and against Mark Meadows, Trump’s former chief of staff, for failure to comply with congressional subpoenas.23
Meadows appeared to be both pivotal and vulnerable, having turned over nine thousand pages of documents (including texts) and published a book about his time with Trump, before deciding that he would refuse to comply with the Select Committee’s subpoena. In riveting hearings on whether to seek charges against Meadows, Cheney read texts that had been sent to Meadows on January 6 by various Republicans, including Donald Trump Jr. and Fox News anchors Sean Hannity and Laura Ingraham, pleading with him to get President Trump to stop the attack. Cheney pointedly read the language of a federal criminal statute, 18 U.S.C. §1512, which makes it a felony to “corruptly obstruct or impede” an official proceeding, such as Congress’s certification of the Electoral College vote.24 Cheney also announced that there would be “weeks of public hearings” in 2022.25 It seemed increasingly likely that the Select Committee report would detail a wide-ranging conspiracy to keep Donald Trump in the White House, despite Joe Biden’s victory in the election. Such findings could well lead the Select Committee to recommend to the Justice Department criminal referrals for numerous people, including Trump’s closest allies, Republican members of Congress, or even the former president himself.26
“We’re watching the investigation that is occurring in the House. Reading about it like everyone else,” McConnell said in an interview in mid-December, calling the January 6 attack “a horrendous event” and adding, “I think what they are seeking to find out is something the public needs to know.”27 This was, of course, consistent with the anger he had expressed at Trump’s second impeachment trial in February, in which he pointedly noted that impeachment was not the end of the road for the former president. “He didn’t get away with anything yet. We have a criminal justice system in this country. We have civil litigation, and former presidents are not immune from being accountable by either one,” McConnell had lectured sternly.28 Nothing would please McConnell more than Trump’s removal from national politics, either by being sent to prison or through permanent exile to Mar-a-Lago. But the paramount question for McConnell would always be whether this result could be brought about without taking down the whole Republican Party, including Republicans running for the Senate.
With 2022 already destined to be a combustible political year, the right-wing Supreme Court majority that McConnell had engineered turned up the heat further when oral argument in the case Dobbs v. Jackson Women’s Health Organization showed that the court was likely to eviscerate Roe v. Wade, erasing the nearly fifty-year-old precedent that had established the right for women to choose an abortion during the first two trimesters of pregnancy, or until fetal viability.29 Despite their professed commitments to stare decisis, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett seemed fully prepared to do what they were chosen to do by Trump, McConnell, and the Federalist Society. Other far-reaching rulings, reversing established law concerning the regulation of guns, church-state relations, affirmative action, and environmental protection, seemed likely to follow. As Linda Greenhouse, the former New York Times Supreme Court correspondent and the most respected analyst of the court, grimly observed, “Over history, change has tended to come to the Supreme Court incrementally. But in the Trump years, it arrived in a torrent. . . . The resulting path of destruction of settled precedent and long-established norms is breathtaking.”30
McConnell loved to relive his confirmation triumphs; it served to remind the Republican right of his indispensability and to infuriate the Democrats. In 2019, he stated that “blocking a vote on [Merrick] Garland was the single most consequential thing I’ve done in my time as Majority Leader,” since it saved Justice Antonin Scalia’s seat for Neil Gorsuch.31 In June 2021, he warned the Democrats that Biden could not count on confirmation of a Supreme Court justice in 2024 if the Republicans regained a Senate majority in the 2022 midterm election.32
In November, McConnell published an op-ed in the Washington Post in which he castigated Democrats for considering radical proposals to expand the Supreme Court or establish term limits for justices. “For decades, Americans across the political spectrum agreed that Franklin D. Roosevelt’s attempt in 1937 at Court packing was an embarrassment,” McConnell observed accurately.33 Left unsaid was that this consensus had been broken by McConnell’s own court packing: the theft of the seat that should have gone to Merrick Garland and the hurried confirmation of Amy Coney Barrett to deprive Joe Biden of the opportunity to nominate a justice to succeed Ruth Bader Ginsburg.
“Judicial independence is as fragile as it is important,” McConnell went on, despite having done unique damage to the court’s standing. (Justice Barrett herself felt the need to reassure the country in September 2021 that the Supreme Court is “not comprised of a bunch of partisan hacks,” doing so in a speech at the McConnell Center in Louisville, of all places.34) McConnell concluded his article with a reminder that “the Senate exists to defeat short-sighted proposals and protect our institutions from structural vandalism”—this coming from the greatest judicial vandal of all.
The Democrats’ bitter disappointment as 2021 ended made it hard to recall that the Senate racked up major legislative accomplishments during the year: the American Rescue Plan, the infrastructure legislation, and a sweeping bill to bolster America’s ability to compete with China. Learning from past mistakes, the Democrats took a page from the Republican playbook and confirmed forty federal judges, allowing Biden to match the record for a first-year president, set by Ronald Reagan in 1981.35 But the Senate’s paralysis between big accomplishments took a continuing toll. “Welcome to the United States Senate. I’ve been here 25 years and I’ve seen the decline of this institution to the point where we no longer function as we once did,” Dick Durbin observed. “Until we change the rules of the Senate and get serious about legislating on behalf of the American people, we’re going to continue to suffer this frustration.”36
During the year, intense discussions focused on the filibuster and the changes that could be made to this rule that is so central to the nonfunctioning of the Senate. Yet, as the veteran Washington Post congressional correspondent Paul Kane observed, “there’s one place the debate hasn’t happened: on the Senate floor itself.”37 This situation continues the decades-long unwillingness of the Senate to face up to the fact that its rules and precedents are not working and are not workable. Repeatedly, particularly in the last twelve years, senators have expressed frustration, but the Senate has done nothing. The last serious examination of the Senate rules took place in 1979, when Jimmy Carter was president, and only one of those one hundred senators—Patrick Leahy of Vermont—still serves in the body today.
As far back as 2005, Senator Trent Lott of Mississippi, a former Republican majority leader, wondered how “holds” (which had begun as temporary courtesies to allow interested senators to participate in a debate) had transformed into the power of a single senator to block consideration of a piece of legislation or a presidential nomination. Senator Lott wrote in his memoir, Herding Cats, “The Senate in my view had become increasingly dysfunctional. . . . It was time we gave the rules a thorough and fair review. How many of them were simply archaic? And were there new rules that we could adopt in the interest of efficiency and consensus?”38 No such review occurred, and in 2021, sixteen years after Senator Lott’s plaintive observation, we had the spectacle of Ted Cruz blocking, for months, consideration of the nominations of virtually every ambassador nominated by President Biden.39 Should any single senator have that power? Shouldn’t the question at least be asked?
The Senate’s rules should be carefully reviewed, perhaps by a group of former senators and outside experts, with necessary changes agreed to take effect in a subsequent Congress, so that is not clear which party would be in the majority or the minority. But as important as the rules are, they pale in significance to the one thing that would transform the Senate and reverse the rising anti-democratic tide in America: breaking Mitch McConnell’s long stranglehold on the Senate. The Senate elections of 2022 provide the opportunity for a real debate regarding the direction in which McConnell’s leadership has taken the country.
McConnell and his Republican enablers hope to nationalize the midterm elections, to capitalize on widespread unhappiness about inflation and the continuing effects of COVID-19. The Democrats need a powerful counternarrative; they should hammer home Biden’s achievements, and they should charge McConnell and his colleagues with prolonging the pandemic, stacking the Supreme Court, opposing needed progressive legislation, and jeopardizing our democracy by failing to put any kind of check on Donald Trump. The map favors the Democrats; of the thirty-four Senate seats up for election, the Republicans must defend twenty, the Democrats only fourteen, and Republican senators have retired in the key states of Pennsylvania, Ohio, and North Carolina, as well as Missouri and Alabama. Nothing would change the direction of our politics more than a Senate with fifty-three or fifty-five Democratic senators, where the majority would not be blocked by one or two of its most conservative members. Joe Manchin was on the mark when he told progressive Democrats that if they didn’t like his positions, they should “elect more liberals.”40
Senate Republicans need to be held accountable for their catastrophic failure during the Trump presidency, the impact of which continues in the resurgent pandemic and the threats to our democracy. As he turns eighty, McConnell has reached an unusual position: enormously powerful, widely known, and intensely disliked. A recent national poll found that McConnell’s personal approval raters were 18 percent favorable, with 4 percent very favorable, and 60 percent unfavorable, with 41 percent very unfavorable.41 The 2022 Senate elections should deliver what America needs: a referendum on whether to extend or end Mitch McConnell’s destructive reign.