As part of a good news agenda, I’ve got a post lined up about Bernie Sanders becoming chairman of the Senate’s Budget Committee. Sanders ascends to that powerful position because Kamala Harris is now the vice president and three new Democratic senators were sworn in yesterday. That means the Democrats get 51 votes in case of a tie and the Republicans only get 50.

But as of now, Sanders isn’t chairman of anything. The odious Republican senator from Kentucky, Mitch McConnell, is already up to his old tricks.

You see, the Senate requires something called an “organizing resolution”. According to the Senate’s official site:

At the beginning of a new Congress, the Senate adopts an organizing resolution listing committee ratios, committee membership, and other agreements between the parties on the operation of the Senate. Typically a routine matter approved by unanimous consent agreement, on occasions when the Senate has been closely divided, the organizing resolution has provoked fierce debate.

The Democrats have said they’re willing to organize the Senate the way it was organized the last time there were 50 Democrats and 50 Republicans. That was the situation in 2001, the only difference being that Republicans had the White House, giving them the ability to break ties in their favor.

But organizing the Senate the same way as last time isn’t good enough for Mitch McConnell now that Democrats have the edge. He wants to change the organizing resolution so that the Democrats agree to never require majority rule in the Senate, i.e. to never abolish the  filibuster. That’s the ability of a single Senator to stop vital legislation without even identifying himself in public.

In 2021, if a senator wants to filibuster legislation, they don’t even have to hold the floor by talking for hours, the way an exhausted Jimmy Stewart did in Mr. Smith Goes To Washington.

Today, senators can simply say “No” to a piece of legislation — without even publicly identifying themselves. To override a senator’s filibuster, it takes a supermajority of at least 60 senators (a 60-40 vote). So unless your party has 20 more senators than the opposition, a filibuster can kill important legislation, even though most senators (and a majority of Americans) want it.

So here’s what McConnell is doing: 

McConnell is threatening to filibuster the Organizing Resolution, which allows Democrats to assume the committee Chair positions. It’s an absolutely unprecedented, wacky, counterproductive request. We won the Senate. We get the gavels (Sen. Brian Schatz of Hawaii).

Because of McConnell’s new demand, the U.S. Senate’s organizing resolution is still the one they had last week when the Senate and White House were run by Republicans. That means they’re still in charge of the committees that approve legislation before it can go to the whole Senate for a vote (and before the Senate can approve many of Biden’s nominees). Bernie Sanders and his Democratic colleagues who are supposed to be in charge of those committees are as powerless as they were before the inauguration!

It sounds like Democrats have to agree to keep the filibuster or they (and we) are screwed.

Except for one thing. Kamala Harris can take the gavel whenever she wants. Being Vice President of the United States automatically makes her President of the Senate. And that makes Democratic Senator Charles Schumer of New York the Majority Leader of the Senate, instead of the odious Mitch McConnell. In other words, the Democrats can now tell Mitch McConnell to go to hell if they want to. Whoever is Majority Leader of the Senate gets to control the proceedings, deciding, for example, what legislation the Senate gets to vote on. It’s quite a system.

Of course, the Constitution doesn’t mention the Senate Majority Leader. The Constitution doesn’t even mention political parties. Nor does the Constitution mention the filibuster. Someone who’s written a book about the filibuster and used to work for a Democratic senator explains where the filibuster came from:

The filibuster was not part of the original Senate because the Framers knew exactly how it’d be used — they saw McConnell coming. The filibuster represents Calhoun’s vision, not Madison’s. Calhoun wanted a Senate where the minority could block the majority (Adam Jentleson).

That’s John C. Calhoun, the Southern senator who wanted to protect the South and slavery from the Northern majority.

Calhoun was profoundly racist. He was slavery’s leading defender in the Senate. He argued on the Senate floor that slavery was a “positive good.” And he was motivated to innovate the filibuster by the desire to protect slavery — to give the South veto power. Bad, bad guy.

The filibuster means that, in many cases, you need at least a 60-40 vote to get something done in the Senate.

The de facto supermajority threshold was first forged against civil rights. Jim Crow-era segregationist senators repurposed a 1917 Senate rule to force every civil rights bill to clear a supermajority threshold, blocking them all. Only civil rights bills were blocked in this way.

The authors of the Constitution favored majority rule, except in a few special cases, like overruling a president’s veto or removing a president from office. Mr. Jentleson quotes an article in The New York Times:

The supermajority threshold of today flies in the face of the framers’ intent. They wanted the Senate to be a place where debate was thorough and thoughtful, but limited, and where bills passed or failed on majority votes when it became clear to reasonable minds that debate was exhausted. Originally, Senate rules included a provision allowing a majority to end debate, and an early manual written by Thomas Jefferson established procedures for silencing senators who debated “superfluous, or tediously.” Obstruction was considered beneath them.

The reason the framers set the threshold at a majority is that they wrote the Constitution to replace the Articles of Confederation, which they saw as a disaster because it required a supermajority of Congress to pass most major legislation. As Alexander Hamilton wrote in Federalist 22, the idea that a supermajority encouraged cooperation had proven deceptive: “What at first sight may seem a remedy, is, in reality, a poison.” Rather than encourage cooperation, he prophesied, the effect of requiring “more than a majority” would be “to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice or artifices” of a minority to the “regular deliberations and decisions of a respectable majority.”

So here we are. The Democrats can now make any rules they want for the Senate and adopt those rules by a 51-50 vote, as long as those rules don’t conflict with the Constitution. They could then pass any legislation they want and get President Biden’s signature on it. That would include things like Biden’s massive Covid relief bill, elements of the Green New Deal and statehood for Washington D.C. and Puerto Rico (giving the Democrats four more votes in the Senate). They could even expand the Supreme Court to cancel out the Republican majority’s ability to find reasonable laws unconstitutional.

Will they use their authority to defang Mitch McConnell, get rid of the filibuster and restore majority rule to the Senate? Before today, it was doubtful, because there are conservative or “traditionalist” Democrats who worry about changing Senate rules (see “Fear vs. the White Male Effect”). Back to Twitter:

The fact that Mitch McConnell can use the filibuster to prevent the majority from taking control of the Senate is a pretty good argument against the filibuster (Dan Pfeiffer).

McConnell makes mistakes and this may have been one. His obstruction playbook relies on stringing Dems along and keeping them believing a bipartisan deal is just around the bend. Filibustering the organizing resolution to prove he won’t filibuster Biden was too clever by half (Adam Jentleson).

Democrats who want to save the filibuster claim it encourages the two sides to work together for the common good. But they’re wrong:

To those who say the filibuster encourages bipartisanship, Hamilton addressed this directly in Federalist 22: “What at first sight may seem a remedy, is, in reality, a poison,” he wrote of a supermajority threshold. It doesn’t encourage cooperation, it encourages obstruction (Jentleson). 

The fact is that the Democrats are the party of Yes and the Republicans are the party of No. It’s time to stop making it so easy for them to say No to the majority, especially today when we face so many crises that require urgent action.