How the U.S. Senate Doesn’t Function

Nearly the only thing Sen. Mitch McConnell will allow to come to the floor of the Senate are judicial nominations (if he weren’t required to take up impeachment, that surely wouldn’t come to the floor either). The judicial candidates are put forward by the Federalist Society, many of them rated as “unqualified” by the American Bar Association. Mr. McConnell, Senator from Kentucky since 1985, is exceedingly proud of his role in first stonewalling nominations that legitimately should have made by President Obama, and then enabling his party to fill those judicial vacancies with Republican/Libertarian nominees who will influence the judiciary for a generation or more. They are all lifetime appointments.

McConnell holds the U.S. Senate hostage as a rubber stamp of judicial nominations. Meanwhile, only the bare minimum of other legislation reaches the floor of the Senate—simply because McConnell will not allow anything that might contradict Trump’s drumbeat of “Do Nothing Democrats.”

It was with this background in mind that a group of us sat in the gallery of Senate, the same Senate that now hosts the impeachment trial, on November 13th. We watched as a legislative mini-drama played out on the floor below.

First, understand there is a procedure, “unanimous consent,” that can be used to pass a bill in the Senate, an action that is outside of McConnell’s control.  A Senator or Senators bring a “Unanimous Consent Request” to the floor and, If no one in the room objects, it passes. Slick, simple…and a long shot.

On November 13 we watched as a bipartisan “Unanimous Consent Request” concerning drug costs came to the floor.

We all recognize, I think, that drug prices in this country are absurdly high. Furthermore, most understand that there is no such thing as a “free market” in drugs. Drug companies charge any amount they think they can get away with short of becoming the object of a damning media expose, e.g. Martin Shkreli raising the price of Daraprim by a factor of 56 overnight. The object of the game is for drug companies to enrich their shareholders, although they profess the money is essential for research and development.

We watched from the Senate gallery as Senator Blumenthal (D-Connecticut) together with co-sponsoring Senator Cornyn (R-Texas) presented the Affordable Prescriptions for Patients Act for passage by unanimous consent (Unanimous Consent Request—S. 1416). This bill would have put limits on one of the games drug companies use to keep control of a medication and its pricing by extending its patent. The Affordable Prescriptions for Patients Act had already been carefully considered and passed by the Senate Judiciary Committee (in which Committee Republicans are in the majority). It seemed to us like this would be a slam-dunk.

Imagine our surprise when Senator Durbin (D-Illinois), a supporter and cosponsor of the Affordable Prescriptions for Patients Act, stood to object—not because he didn’t want it passed, but because he wanted to add to the bill an amendment that would require drug companies to simply disclose the cost of a drug every time they advertise it. (This amendment is referred to as the Durbin-Grassley amendment or S. 1437.) Note that Mr. Grassley is a Republican Senator from Iowa, i.e. this amendment also has bipartisan support both in the Senate and among voters.

Ah, we thought, now this is logical. Surely there won’t be any objection, we’ll get this reasonable amendment and then we’ll also get the patent legislation.

But: From under the gallery Senator Patrick Toomey (R-Pennsylvannia, serving since 2011) rose to object.

I am sympathetic with the idea of requiring greater transparency on healthcare costs generally…It doesn’t strike me, obviously, as a good idea to mislead people, including in this context. Why do I say it is misleading? It is because the legislation requires the list price or the wholesale acquisition price of a drug to be the price that is put in the ad, despite the fact that almost no one ever pays either of those prices. There are huge rebates that are built into the system. 

And this is a reason not to demand the drug companies disclose their pricing on their ads? It is hard for me to imagine a more bogus, disingenuous argument. Nonetheless, Mr. Toomey’s objection served the purpose of McConnell’s leadership and power trip: Never let legislation sneak by that could 1) threaten Republican protection of corporate power and 2) never let anything come to the floor that might result in an embarrassing recorded vote, regardless of how bipartisan the support.

Mitch McConnell has worked hard to earn his rank as the least popular legislator in Congress, both nationally and in his home state of Kentucky. He changes his talk to suit an audience faster than a chameleon changes color to match its background. For Kentucky audiences on public television he “brings home the bacon” and allows Kentucky to “punch above its weight.” For the Hannity listenership on Fox, McConnell is working hand in hand with Trump’s lawyers on impeachment defense. He crows about his senatorial power politics.

McConnell faces a credible challenger this November, Amy McGrath, a former Marine fighter pilot. As a resident of Eastern Washington, I am reminded of the razor thin vote margin by which George Nethercutt unseated Tom Foley, then Speaker of the U.S. House of Representatives, in the tumultuous political times of 1994. May such a surprise await McConnell this fall. While McConnell remains in power we are assured of partisan dysfunction in Congress, dysfunction that prevents even the most reasonable bipartisan legislation like these drug bills from becoming law.

On the lighter side, McConnell’s reign has sparked some ingenious lyrics and song. (Watch and listen to “Song for McConnell” on youtube. It will make you smile.)

Keep to the high ground,