Say It Ain't So, Joe

What is Senator Manchin up to?

Apr 09, 2021

It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.
-Statement attributed to Mark Twain

On Wednesday, Senator Joe Manchin (D-WV) took to the op-ed page of The Washington Post to explain why he would not support the elimination of the filibuster, the esoteric Senate rule which allows a bill to be blocked by requiring 60 votes to end debate and move to a vote. For good measure, he added his opposition to the Senate’s budget reconciliation process, an exception to the filibuster for bills that deal with spending and taxation. In an ahistoric screed, Manchin makes a tenuous case for continuing to allow minority veto power over legislation.

He opens by stating that, because “the Founding Fathers understood that the challenges facing a rural or small state would always be very different from a more populous state… [Giving each state] the same number of senators — regardless of the population — ensured that rural and small states and the Americans who live in them would always have a seat at the table.” From this, he concludes “the filibuster is a critical tool to protecting that input and our democratic form of government.”

The actual history is different. The Framers of the Constitution, led by James Madison and Alexander Hamilton, were firm believers in majority rule. The more populous states at the time of the Constitutional Convention wanted Senators selected proportional to their population in much the same way as the Representatives in the lower House. Obviously, the small states pushed for equal representation in the Senate. The manifest fear these states might refuse to join the Union led to the so-called Connecticut Compromise which assigned each state two Senators regardless of population. With Convention rules giving each state one vote, it passed 5 votes to 4. Writing in The Federalist No. 62, Madison accepted the compromise as “the lesser evil”.

As for the filibuster itself, Manchin not only conveniently ignores history again but clumsily reverses cause and effect. “Every time the Senate voted to weaken the filibuster in the past decade, the political dysfunction and gridlock have grown more severe,” he writes, conveniently omitting the fact that when Senate Majority Leader Harry M. Reid (D-Nev.) engineered a rules change in 2013, it was out of frustration in dealing with incessant Republican filibusters calculated to obstruct the legislative initiatives of the Democrats.

Like MAGA nostalgia for the good old days that never were, Manchin wants us to believe that good legislation can only be crafted in a bipartisan manner. That ship has sailed. The Tax Cuts and Jobs Act of 2017, the large tax cut signed into law by Donald Trump in December of that year, passed both Houses of Congress on a party-line vote. In the same way, the Biden Administration’s American Rescue Plan Act of 2021 passed through Congress in March without one Republican vote. In the strange irony we’ve come to expect from our politicians, in January Senate Minority Leader Mitch McConnell (R-KY) threatened to filibuster the Organizing Resolution, a routine piece of Senate business dealing with items such as committee assignments, unless the Democrats promised not to attempt to eliminate the filibuster.

Of course, the filibuster was not part of the vision of the men who drafted the Constitution. In his recently-published history of the Senate, Kill Switch (Liveright Publishing, 2021), former Senate staffer Adam Jentleson claims “the Framers would have abhorred the filibuster”. He describes the emergence of the filibuster in the 19th Century as a tactic used by Senators to protect the slave-based economy of southern states:

Over two centuries, they were able to shape the Senate and thereby the nation, retrofitting the Framers’ vision to give themselves, a factional minority, veto power over every law the nation passes.
Conceived as a delaying tactic in the mid-nineteeth century and endowed with the power to impose a supermajority in the early twentieth, the only issue it was deployed against was civil rights… But in our own era, senators began using the filibuster to impose a supermajority threshold on every bill’s path to becoming a law, stopping the many that cannot clear it in their tracks and bringing the Senate itself to a grinding halt.

Facts don’t lie. Writing in The Atlantic in December, 2012, constitutional law professor Garrett Epps pointed out:

The number of actual or threatened filibusters has increased dramatically since 1970, and now dominates the business of the Senate. In 2009, there were a record 67 filibusters in the first half of the 111th Congress -- double the number that occurred in the entire 20-year period between 1950 and 1969.
By the time the 111th Congress adjourned in December 2010, the number of filibusters had swelled to 137 for the entire two-year term of the 111th Congress. During the 111th Congress, over 400 bills that had been passed by the House of Representatives -- many with broad bipartisan support -- died in the Senate without ever having been debated or voted on because of the inability to obtain the 60 votes required by Rule XXII.

It is difficult to discern Manchin’s motivation other than perhaps being re-elected as a conservative Democrat in a solid red state. He entered the Senate in 2010, so he experienced first-hand the Republicans’ frequent use of the filibuster. But no matter the reason, he has positioned himself, along with Senator Krysten Sinema (D-AZ), as an obstacle to getting President Biden’s bold agenda passed into law. It could be the very boldness that elicits caution from the man who believes “legislating was never supposed to be easy”.

Or Senator Manchin may simply be a man in the wrong time and place. Change- social and political- is already happening. It would behoove our leaders to plan and prepare expediently. As Jennifer Rubin put it The Washington Post today:

When nothing happens… responsibility is diffused. When something happens, each politician has to face controversy and the potential for electoral defeat. It is for this reason that the filibuster is despised by those who want bold action and beloved by politicians who do not want the ball as time runs out in the game.

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