The Filibuster Heat Shield

Joe Manchin’s opposition to killing the filibuster seems to have more to do with protecting other Democrats than bipartisanship.

Yesterday, I was scanning the headlines about the filibuster again. I know, I’m kind of obsessed about it. I’ve been piecing together a puzzle about it. I’m studying the filibuster because I want to understand why anyone would be in favor of something that was so deeply opposed and even feared, by the people who wrote the Constitution. The filibuster seems to be a ruse for something much deeper, and more onerous than the headlines suggest.

So I started an informal review of some very powerful Republicans and their comments about the filibuster. I live in Utah, so I found a few choice press releases from Senator Mike Lee (Mitt Romney didn’t have much to say). I’ve also been very interested in the dire warnings of Mitch McConnell. Of those that I have reviewed, they are all uniform in their distaste for killing the filibuster. But there is something here that just doesn’t add up.

First, there is Mike Lee. He didn’t seem to like Trump, but he made a point of getting to know Trump during the last administration. Trump was adamant about killing the filibuster during the debate over funding for The Wall. During a meeting in 2018, Trump was characterized by Politico as follows:

But a big chunk of the lengthy meeting was spent on one of Trump’s favorite topics: railing against the filibuster. The filibuster and its 60-vote threshold on legislation has been a major source of tension in today’s GOP. Trump and House Republicans hate it, arguing it is archaic and abused by the minority. But many Senate Republicans defend it as a key weapon in fending off liberal priorities like cap and trade and single-payer health care.

Notice the emphasis on fending off liberal priorities. There was a clear sense of urgency about keeping the filibuster in 2018 when the GOP still had control over both houses and the White House. Here is Mike Lee in a January 27th press release:

The belief that such checks are necessary for “them” but not for “us” because “our” ideas are so obviously correct is the very self-righteous folly the Founders had in mind when they created those checks. The Constitution intentionally diffuses power horizontally among three branches of the federal government and vertically between the federal government and the states, specifically to prevent small majorities from abusing temporary power to stick it to their minority opponents. The legislative filibuster is not a check on “progress;” it’s a check on our fallen human nature.

But the Founders never created the filibuster in its current form. The filibuster evolved into its current form by an accidental change in the rules. The Founders believed that debate should be stopped in either house with a majority vote. They never intended for a minority to wield so much power upon the majority. Mr. Lee goes on to issue a very dire warning:

Because in the medium term, Democrats nuking the Senate filibuster would be [the] greatest gift conservative policy has been given since Ronald Reagan decided to quit acting. For Democrats, it would be the most self-destructive miscalculation in the history of American politics, a voluntary surrender of the legislative high ground in almost every domestic policy debate. And it would swing a giant wrecking ball into the taxpayer-subsidized interest groups that constitute the Democrats’ political and fundraising coalition.

Notice a glaring omission. What he doesn’t say is this: if the Democrats ever get a majority again after conservatives use the “wrecking ball”, Democrats can fix whatever the Republicans do to break the government if there is no filibuster. This is the fraud of the filibuster.

Mitch McConnell continues perpetuating that fraud in a speech he made in Congress, turned into this press release dated March 23rd, 2021. Once again he issues dire warnings about what would happen if the filibuster were killed:

“Three years ago, the Assistant Democratic Leader was asked about a Senate majority going ‘nuclear’ and killing the legislative filibuster. Here’s what he said. ‘I can tell you that would be the end of the Senate, as it was originally devised and created, going back to our Founding Fathers.’ End quote.

Oh, yes, and in that same speech, McConnell had the gall to say this:

There is fake history swirling all around this discussion.

As if what he has to say is the gospel. But in my research and in the esteemed research of many historians which I have cited in previous articles on the topic, the Framers never intended for the country to be ruled by supermajorities or minorities. Never. That is the real history that McConnell and other defenders of the filibuster would like to obscure. Here’s a sample of that history from David RePass at the Atlantic, from an article way back in 2011:

During the Constitutional Convention, the Founding Fathers had considered supermajority quorums but rejected the idea. Federalist Paper №58 says that “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 if quorums of more than a majority were required. It would be no longer the majority that would rule: the power would be transferred to the minority.”

We can find similar history again from former Senator Tom Udall from New Mexico:

There is no constitutional limit on the length of time that a senator may debate a measure. Therefore, the Senate generally relies on its rules and other internally adopted mechanisms to control what otherwise could be endless debate. The Senate uses four methods to control debate. First, the “motion to table” is a non-debatable motion used to halt debate and bring about an immediate up or down simple majority vote on whether to table a measure. While the “motion to table” is an efficient tool for limiting debate, is has limited utility for those in favor of a measure because it may only be used to “table,” or kill, a measure. Second, the Senate also utilizes debate-limiting provisions within previously adopted legislation that supplement the Senate Rules for actions pursuant to that legislation. The debate-limiting provisions contained within the Congressional Budget Act of 1974 are an example. The final two methods, the “unanimous consent agreement” and Rule 22’s cloture mechanism, are the most important to understanding the mechanics of the filibuster. The unanimous consent agreement is a commonly used method for ending non-controversial debate and moving to further action. However, as its title suggests, a unanimous consent agreement requires a unanimous vote. Finally, Rule 22’s cloture mechanism requires a supermajority vote, generally a three-fifths vote, to end debate and proceed with definitive action.

To put it simply, the Founders had never intended for a minority to have that much power over either house. Tom Udall isn’t the only scholar to notice that the modern filibuster runs afoul to everything that the Founders had envisioned in the Senate. Deliberative body? Sure. Stuck in the mud? Not so much.

So all this talk about how the Founders would have wanted the modern filibuster is a flat-out lie. In all of the history that I’ve read on this topic, I have not once seen any quote or any citation that definitively shows that any author of any of the founding documents was in favor of a 60-vote requirement to end debate. Zero. None. Nada.

The dire warnings from Republicans, and from Democrats in the not too distant past have nothing to do with the see-saw effect that they predict if the filibuster were to be outed for the fraud that it really is. The dire warnings can be interpreted as follows: “If we pass legislation that our faction really likes, next year, the opposition can reverse our work.” For some reason, I never hear anyone talking about that. If Congress passes a terrible law, the next Congress can fix it. That’s the point of killing the filibuster and that is true of both parties.

Legislation is an iterative process. A bill is passed into law. With the practice of that law, mistakes and errors are found. With experience, the law is amended to fix the mistakes or abolished altogether if it is found to be unworkable. I’ve had the chance to read the code, like the United States Code, and I’ve seen the sea of footnotes indicating the legislative history of a section of code. It really is interesting to see how laws evolve to fix problems.

So I have no fear of killing the filibuster. Yes, there will be a see-saw effect for some time, but all systems seek a state of equilibrium. And if one side passes a bad law, elections can fix that, too. Besides, everything that is permanent is dead. This is another reason I want to get rid of the filibuster.

But there was one point I wanted to make on the way out. Joe Manchin isn’t protecting the filibuster to promote bipartisanship. He’s never offered any proof that the filibuster promotes bipartisanship. Nobody has. Do you know what promotes bipartisanship? Knowing that if you pass a bill that is totally partisan, and you lose your majority next term, that the new majority made up of the opposition can change what you just did. That’s what bipartisanship is about.

Joe Manchin is not protecting the filibuster for bipartisanship. He’s protecting fellow Democrats who are moderate and that represent purple states. He probably doesn’t want progressives taking notice and pressuring them to kill the filibuster.

So let's say we do kill the filibuster this year. Are you worried that the GOP will get a majority in 2024 and blow up progressive legislation that was just passed? Maybe. But if the GOP knows that they can’t hold their majority forever, they may exercise more caution with their ambitions. They may propose more gradual changes. They might even propose laws with a wider appeal. The last time I checked, that’s how elections are won.

Write on.

Husband, father, worker, philosopher, and observer. Plumbing the depths of consciousness to find the spring of happiness. Write on.

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