One of the most important things we have learned about our political system over the last few years is that very little of it is actually enshrined in law – or the Constitution. Some of it rests on “rules” in the House and Senate, which can be changed on a whim. Look no than the federal judiciary for the wreckage of McConnell’s elimination of cloture and the filibuster.

But some things are merely tradition, like Presidents consistently disclosing their tax returns and personal finances for decades. As it turns out, the Senate Majority Leader position does not exist in either the Constitution or Senate rules. It is merely a tradition and the VP, as President of the Senate, can recognize anyone to lead that body.

She could say, but shouldn’t, that she is doing because she can. Instead she should say that she is doing because Mitch McConnell has failed the country and has created a completely dysfunctional Senate. There have been hundreds of matters that should have been brought to the Senate floor over the last decade that have died, silently, and without debate.

The “world’s greatest deliberative body” needs to start deliberating again. Dems win some, Republicans win some. But bills passed by the House and issues important to the American people must get a hearing in the Senate.

McConnell’s greatest success for the GOP was a tragedy for America; he simply completely stopped the legislative process and limited the role of the Senate to denying Democratic appointments and approving Republican ones. If a bill lowering taxes or trying to kill the ACA came along, he might give that a hearing too.

As the article points out, this needn’t be a partisan move. She could recognize a Republican who is willing to actually conduct the Senate’s business – replace them if they don’t.

It is much better to get the 50 votes and not have to play hardball. The victory in Georgia is still important. But the conventional wisdom is that without a Democratic Georgia sweep, McConnell would hold all the cards…

“Actually, that is only true if the Democrats let it happen.  Under the McConnell Theory of the Political Universe, where only the most rock-solid legal principles are binding, Democrats could control the Senate even when they are in the minority.  How would that work?  More importantly, would Democrats do what is needed, and how would Republicans react?”

“The only binding constitutional provision says that ‘The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.’  By tradition, the Vice President does not preside, granting powers to the Senate’s majority party to choose a leader and to pass rules that delineate his powers.  There is no reason why those powers have to include the ability to bottle up legislation, but current rules have allowed that travesty to continue.  It must stop.

“Vice President Harris can give ‘priority recognition’ to any senator to control the agenda and to schedule floor votes.  She could designate McConnell, but she could also designate Schumer, Tammy Baldwin, Mitt Romney, Lisa Murkowski, or even the newest Senator, Mark Kelly of Arizona.  (Susan Collins would surely be too “concerned” to accept the position.)  Notably, because any attempt to amend the Senate’s rules to formalize McConnell’s power would have to be brought up for a vote, Harris could prevent that from happening.

“What of positive actions that require majority votes, such as judicial appointments?  A super-hardball tactic — what fans of my generation might call the Goose Gossage high hard one — would have Democrats refusing to take up judicial appointments and then invoking the silence-is-consent rule to deem the nominees to have been approved; but I am not going there.  What is the process by which a judicial nominee would actually be affirmatively and not passively approved?”
[bpfb_link url=’http://www.dorfonlaw.org/2020/12/harris-will-be-mcconnells-boss-hardball.html’ title=’Dorf on Law: Harris Will Be McConnell’s Boss: Hardball Is Hard’ image=”]by Neil H. Buchanan More than anything else, Mitch McConnell’s actions as Senate Majority Leader have demonstrated that he will do everythin…[/bpfb_link]