Barring something unexpected, this Tuesday will mark two months since the U.S. Senate held a roll call vote on passage of any type of legislation. That was a joint resolution to nullify President Donald Trump’s declaration of a national emergency at the Mexican border (which Trump later vetoed).
It’s been three months, as of Sunday, since the Senate last took yeas and nays on a genuine, full-fledged bill: the John D. Dingell Jr. Conservation, Management, and Recreation Act. It passed, 92 to 8, and was later signed into law.
So there was some eye-rolling last week when Senate Majority Leader Mitch McConnell harshly criticized House Democrats, telling them to “move on” from investigating the Trump administration, and get back to the business of legislating for the country. When, some Democrats mused, will McConnell allow the Senate to move on to that business?
The United States Senate, that great deliberative body, has effectively ceased legislating this year. It has shut down. Closed for business until 2021.
Occasionally, McConnell allows the passage of a bill deemed sufficiently uncontroversial and of minimal importance. In those cases, he generally eschews the normal process of committee consideration, floor debate, amendment, and roll call vote.
Instead, he does what he did last week with a bipartisan bill introduced by Massachusetts Democrat Elizabeth Warren and Arkansas Republican Tom Cotton, providing for more frequent display of the POW/MIA flag at certain federal properties. Just prior to the end of the day’s session, McConnell moved to have the bill brought forward, to waive the various normal procedures, and to consider it passed by unanimous consent. In just a few moments, in a mostly-empty chamber, the bill was passed and sent to the House of Representatives.
That was just the 27th bill or joint resolution passed by the U.S. Senate — including those naming post offices — a little more than four months into the two-year session.
A total of 17 have become law; the most recent, signed by Trump on Friday, gives states flexibility to spend money on public target-shooting ranges. Only two of the 17 received a roll call vote in the Senate: the Dingell Act, mentioned above; and an 1100-page, $330 billion appropriations bill, ending the contentious funding battle, that the Senate passed 83 to 16 less than 24 hours after it was released. The others were all agreed to by unanimous consent or voice vote.
Even the more significant bills have been ushered through without serious process or debate. Those unanimous consent and voice votes include measures relating to Medicaid, Temporary Assistance to Needy Families (TANF), and the Colorado River drought.
McConnell has his eyes, presumably, on the 2020 election; he wants to preserve the Republican majority in the Senate — and his own re-election in Kentucky — and apparently thinks the path lies in criticizing Democrats’ proposals, not in promoting Republican or even bipartisan ones.
There might also be a trust issue between McConnell and the White House.
You may recall that the year began with the partial government shutdown. That impasse began in late December, when Trump declared his intention to veto a short-term funding extension — after McConnell passed the compromise measure through the Senate by unanimous consent and sent his members home for the holidays.
McConnell, feeling backstabbed, subsequently refused to participate in the budget negotiations. He essentially told the White House and House of Representatives to let him know when they had worked something out.
He and his team are now reportedly taking a similar approach to discussions on potential immigration reform and infrastructure legislation.
That wariness of Trump’s unpredictable fluctuations might be adding to McConnell’s obstructionist political instincts; whatever the reasons, the bottom line is that law-making is dead in the United States Senate.
With little hope of seeing legislation actually reach the floor, Senators on both sides of the aisle have largely given up on trying to craft bills in committee.
Senate committees have held hearings on just a dozen bills this year, according to Library of Congress data at congress.gov; there are typically hearings on at least a couple hundred in a two-year session. On average, over the past 10 sessions, nearly 600 bills go through “markup,” a key step in finalizing the contents. Just 57 bills have been marked up in the Senate so far.
Perhaps the most telling statistic, showing the dearth of deliberation and debate in this Senate, is the number of amendments considered to the legislation moving through.
Over the previous 10 years, the Senate has seen an average of 443 amendments proposed on the floor each year, ranging from technical fixes to complete replacement bills. Many were adopted by voice vote, and others were ultimately tabled or withdrawn. But on average, 113 of those amendments received full roll call votes.
So far this year, just 28 amendments have even been allowed on the floor. Only eight of them have received roll call votes. The last action of any kind taken on an amendment in the Senate was six weeks ago, on April first.
Yes, it’s still early in the two-year session. But one thing almost everybody agrees on is that moving legislation will only get tougher next year, as the Presidential and congressional elections draw near.
While the Senate stands still, the House of Representatives has kept busy. Roughly 100 bills passed by the House of Representatives are awaiting Senate action.
The latest, passed on Thursday, relates to health insurance coverage for people with pre-existing conditions. It was the first of a series of health care bills House Democrats plan to vote on this month.
Senate Minority Leader Chuck Schumer has been publicly calling the Senate a graveyard for House bills. Some of those, to be sure, are liberal wish-list items of limited interest in the Republican-led Senate. But many are relatively uncontroversial measures, with bipartisan support.
One bill, to help veterans get skills and jobs in STEM and computer science fields, had bipartisan House sponsors and passed by voice vote in February. Another, the Financial Technology Protection Act, was introduced by Republican Ted Budd of North Carolina, passed the House unanimously in late January. Both now sit in the Senate, assigned to committees along with many others like them, receiving no attention or action.
“McConnell is treating anything that comes from the House as a non-starter,” said Senator Ed Markey of Massachusetts.
Democrats fully intend to make political use of the dynamic. Pre-existing conditions joins six other pieces of legislation, passed by the House and buried in the Senate, in a slate of issues that Democrats plan to use as a “referendum on whether Donald Trump should return as President, and Mitch McConnell should return as leader of the Senate,” Markey said.
That includes a good-government reform bill; reauthorization of the Violence Against Women Act; expanded gun background checks; the Paycheck Fairness Act; net neutrality; and a resolution to re-join the Paris climate agreement.
All poll well, including in states with potentially vulnerable Republican senators. McConnell has said none will be voted on in his Senate.
“The only place these don’t have Republican support is in Mitch McConnell’s office,” Markey quips.
Conveyor belt for nominations
In lieu of legislating, the chamber now keeps busy confirming nominations; McConnell has taken to saying that the Senate is in the “personnel business.”
That includes some high-profile positions, such as Supreme Court Justice, Interior Secretary David Bernhardt,
But mostly, they are district court judges and sub-secretary administration posts.
In the past, almost all of those nominations were uncontroversial enough to be bundled together and approved in a pro forma manner — largely because of procedural barriers that deterred more extreme picks. The “blue slip” tradition allowed senators to block nominee for positions in their home states. It took 60 votes to proceed to a confirmation vote, and floor debate on the nomination could then go on for 30 hours.
McConnell killed the blue slip tradition last session, and Democrats lowered the cloture rule to require a simple majority of 51 for most nominees during the Obama administration. A little over a month ago, Senate Republicans changed the debate limit from 30 hours to just two.
Since that change, “we have become a conveyor belt for these nominees,” Markey says. “Two hours of debate, and 51 votes. Two hours of debate, and 51 votes.”
He’s not wrong. In the 17 days it has met in session since that April 2 change, the Senate has held 49 roll call votes. All but one — an unsuccessful attempt to override Trump’s veto of a resolution on Yemen — was on cloture or confirmation of a nominee. A dozen of those nominees were confirmed with fewer than 60 votes in favor.
More judicial confirmations are scheduled for this week. No votes on bills are on the calendar as of this writing.