The power of 41: senator McConnell fights for the filibuster

National Review, April 7, 2008 by Ramesh Ponnuru

MITCH MCCONNELL, the Kentucky Republican who leads his party in the Senate, has a number on his mind. It's not 51, the number of Republican senators he would need to become the Senate majority leader. It's 41. If he can count on 41 senators to vote with him on filibusters, he has a say in the country's government. If he doesn't, Senate Republicans are largely irrelevant.

"The power of 41," he says, "is the power to shape or to block." He's right. The Democrats do not have much to show for having taken control of Congress in 2006--and the main reason is that McConnell has had the votes he needs.

When they took power, the Democrats wanted to let unions organize companies without winning secret-ballot elections. The party got its way in the House, where the majority party usually wins. In the Senate, though, the minority party can filibuster. Republicans did so, and the bill died.

Senate Republicans have reshaped bills more often than they have killed them. Congress wanted to pass a one-year "patch" to keep the Alternative Minimum Tax from hitting more families. Democrats, especially in the House, wanted to raise other taxes to offset the patch, having run on pledges of fiscal responsibility. Senate Republicans held firm, and the Democrats ended up passing a patch with no tax increase--infuriating Rahm Emanuel, who had guided the House Democrats to victory in 2006.

A Republican filibuster in the Senate, or the threat of one, has forced the Democrats to back down on issue after issue. They had to drop a tax increase from their energy bill. They had to adopt President Bush's position on the minimum wage, pairing an increase with small-business tax cuts. They had to accept Bush's demand on the level of discretionary domestic spending. Harry Reid wanted a stimulus bill with more spending, but McConnell said no and got enough Republicans to vote with him to make it stick. The stimulus is almost entirely made up of tax cuts.

Senate Democrats held 34 votes on the Iraq War in 2007. At the start of the year, the conventional wisdom was that Republicans were going to start abandoning the president on the issue. But almost every time, Republicans stopped the Democrats by keeping them from getting a 60-vote supermajority. (The one exception was a war-funding bill, which Republicans did not want to filibuster. They let Bush veto it instead.) By the end of the year, 22 Democrats were joining with McConnell on an amendment to give Bush the war funding he wanted with no strings attached. The success of the surge has helped to make the politics of the war more favorable for Republicans, but the power of 41 kept political support for the war from collapsing when the public was most against it.

On one big issue, Senate Republicans were not able to hold their 41 votes: legislation to expand the children's health-insurance program, which passed both the House and the Senate before President Bush vetoed it. But without McConnell and the Senate Republicans, Bush would have had to cast many more vetoes. Democrats would have liked to fight an unpopular president over vetoes of poll-tested legislation, instead of explaining that, thanks to McConnell, they couldn't get their bills through Congress.

The ability of a minority of the Senate to filibuster legislation has, in short, made the last two years of the Bush presidency much more successful for Bush and his party than they would otherwise have been. And the filibuster could become even more important if Barack Obama or Hillary Clinton wins in November. At that point, Republicans will no longer have vetoes and veto threats as a backstop against liberal legislation.

"If Obama has a filibuster-proof majority in the Senate, he will take this country farther left than it has gone since the Great Society," warns McConnell. If Democrats control the White House and the Congress, only a Republican filibuster will stop a great leap forward in government control of health care.

Republicans can lose eight seats and still have 41 members, but the closer they get to that number, the more they need to stick together. Right now, McConnell can sustain a filibuster if a few Republicans side with the Democrats, and can even tell a Republican in a tight spot that he doesn't need his vote. McConnell isn't sure this will be the case after the November elections. Some of the filibuster votes have been close enough to give him ample reason to worry.

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On a bill to extend congressional voting rights to the District of Columbia, McConnell lost seven Republicans, and only one Democrat sided with him, leaving him a margin of two votes to sustain a filibuster. He also had only a two-vote margin to defeat a bill to impose price controls (in all but name) on drug companies that participate in Medicare. The Democrats had 59 votes, one short of what they needed, on their big-spending stimulus bill and their tax-increasing energy bill.

If the number of Republican senators drops by four or five this fall, McConnell will lose such votes. He would have to hold almost all of the remaining Republicans to prevail, and that wouldn't happen very often: All it would take to lose would be for a few Republicans to agree with the Democrats, or to decide that getting along with the majority party is in their political interest. Democrats might be able to pick off an additional Republican or two by making side deals.