Written by Harry Burke

Joe Manchin Is Wrong About The Filibuster.

Senator Joe Manchin (D-WV)

It happened again. The Democratic Party tried to do something good and the Republicans filibustered it. They were condemned by Senators like Joe Manchin (D-WV) who came out with “strongly worded statements” accusing Mitch McConnell of putting party before country. 

I’m speaking of course about last week’s failure to create a bipartisan commission to investigate the January 6th capitol riots. Democrats in congress—along with a handful of Republicans—pushed a bipartisan commission through the House of Representatives and Senate Republicans filibustered it.

This ordeal once again shows why the filibuster needs to go and why arguments for keeping it—arguments people like Joe Manchin espouse—are completely wrong.

Let’s take a closer look at why.

Joe Manchin’s filibuster misses reality

For those of you that don’t know, the 60 vote filibuster is a long-time quirk of the US Senate. In order to get virtually anything passed Senators need 60 votes. This is to enact something called cloture: the procedural vote used to close debate on something. If you don’t reach 60 votes, debate would continue without the bill in question coming to a vote.

If you’re scratching your heads at this, you’re not alone. I’ve written before on how unnecessary and counterproductive the filibuster is. But people like Joe Manchin love it. To Joe Manchin, the filibuster is a unifying procedure ensuring the country’s cohesion. To abolish or even alter it is to go against the founding fathers and their vision of the Senate. 

While Joe Manchin defends the filibuster based on this false interpretation of history and politics, the Republican Party is passing laws across the nation making it more difficult for Black and Brown people to vote. The one thing that could help alleviate the horrible effects these state laws will have on our democracy is to pass national legislation like HR 1 and the John Lewis Voting Rights Act. The only problem of course is getting 10 Republicans to vote for them. That won’t happen so long as the filibuster is in place, good democracy reforms are doomed. 

I’m not sure if Joe Manchin will ever budge on the filibuster to get voting rights through, but I am sure of one thing: his arguments for keeping the filibuster are wrong. 

Joe Manchin thinks the filibuster promotes bipartisanship. That is not true.

Within Joe Manchin’s defense of the filibuster is a deeply held belief in bipartisanship as the ultimate goal. It’s not one I happen to share, but it is there nonetheless. I understand why he holds it, but what I can’t comprehend is why he thinks promoting the filibuster means promoting bipartisanship. This is a dangerously false idea of what the filibuster actually does. We can look back as recently as last week for an example.

The bipartisan January 6th commission

January 6th was one of the darkest days in American history. A right-wing mob fueled by hatred and conspiracy theories overpowered law enforcement and stormed the United States Capitol Building. Their goal was obvious: to overturn the results of the 2020 presidential election and install Donald Trump as president. This horrible stain on American history needs to be investigated in an honest and fair way. Members of congress sought to do just that. 

Talks between Congressman and Homeland Security Chairman Bennie G. Thompson (D-MS) and ranking member John Katko (R-NY) culminated in a framework for a bipartisan commission to investigate the January 6th capitol riot. But shortly after this agreement was announced, Senate Republicans made it clear that they would filibuster it. Not every Republican voted to filibuster the commission, in fact a decent few—6 Senate Republicans—voted for the commission. But because of the 60 vote filibuster, the commission died.

The filibuster was not used by Mitch McConnell to negotiate the commission’s framework or suggest changes. It was used to stop this commission from forming. Republicans literally used the filibuster—the tool Joe Manchin thinks protects bipartisanship—to veto a bipartisan commission negotiated between a Democrat and a Republican in the House. It was then voted on in the House and even the Senate with bipartisan support. It still did not pass the upper chamber. 

If this example doesn’t convince you that the filibuster actually hinders bipartisanship, I’m not sure what will. 

The Framers would have some disagreements with Joe Manchin

If you haven’t read Adam Jentleson’s book Kill Switch, you should. It’s an insightful account of the history of the filibuster: its accidental creation, its usage, attempts at reform, and why it is one of the worst procedural inventions in the history of the democratic world. 

For those of you that don’t know, the Senate filibuster was created by accident when Vice President Aaron Burr—then President of the Senate and its presiding officer—suggested that the upper chamber get rid of a rule called the previous question motion. That rule ended debate with a simple majority vote, not the 60 vote threshold we have today. In Burr’s view, it was a redundant rule and therefore unnecessary. The Senate voted to eliminate it, paving the way for the filibuster. It wasn’t until years later that obstruction innovators like John C Calhoun realized the loophole: if they could keep debate going on a piece of legislation, they could ensure it never got to a vote.

Today’s filibuster is somewhat different and much easier to wield than in Calhoun’s day, but the main goal is still there. A minority of Senators can stop a bill they don’t like from becoming law.

You would not have known any of this history if you listened to Joe Manchin defend the filibuster, oftentimes using historical gymnastics to make his points. For Manchin, the filibuster is in keeping with how the framers viewed the national legislature. The House would propose legislation laced with the “hot passions” of the masses while the Senate was the “cooling saucer” that tempered them. The filibuster helps to achieve this outcome and is therefore in keeping with the framer’s vision.

This was not what the framers believed.

Here’s a quote from James Madison in Federalist 58 on instituting a supermajority threshold for legislation—which is what the filibuster effectively is:

In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed [with a supermajority threshold]. It would be no longer the majority that would rule: the power would be transferred to the minority.

Alexander Hamilton was even more explicit—and quite frankly brutal—in his takedown of a filibuster like threshold:

The necessity of unanimity in public bodies, or of something approaching towards it [emphasis added], has been founded upon a supposition that it would contribute to security. But it’s real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.

Madison, Hamilton, and the founding generation are subject to their own justified criticisms—slavery and a narrow interpretation of who gets suffrage just to name a few. But people like Joe Manchin who protect the filibuster under the guise of furthering the genius of the founding fathers should think again. If Hamilton or Madison were alive today, they would not agree with Joe Manchin.

The Republican Party has lost its mind

While Joe Manchin dances around spouting myths about how the filibuster promotes bipartisanship (it doesn’t) or is in keeping with the vision of the framers (it isn’t) the Republican Party is busily passing laws making it harder for people to vote. The only way we can ensure that democracy is protected for all Americans is to pass national legislation like HR 1 and the John Lewis Voting Rights Act. Unfortunately, the one thing standing in the way of their passage is not popular opinion or good faith counter arguments. It is the Senate filibuster. 

So far, Joe Manchin has made it perfectly clear that he will not abolish the filibuster or even alter it to make it harder to use, not even for voting rights or democracy legislation

He has proposed strong new voting rights protections with Lisa Murkowski, which I applaud. But I’m certain that it will not get the 10 Republican votes necessary to become law.

If we want to truly make America a free and fair democracy and combat Republican attempts to shrink the electorate, we have to get rid of the filibuster. 

Joe Manchin can protect democracy or he can protect the filibuster. He can’t do both.

Photo of Joe Manchin from Senate Democrats Flickr account. In no way does this imply implicit or explicit endorsement of this article.