Senator Manchin, the Filibuster, and the Loss of a Glorious Political Tradition

By Luis Fleischman

Much has been said that Democrats could get their way and advance their ambitious legislative plans, but only if they were to eliminate the Senate Filibuster. The elimination of such a device would enable the Democrats to pass legislation by a simple majority. Without its elimination, most bills require 60 votes, or 3/5 of the Senate, to become law. 

Indeed, Democrats want to take advantage of their slimmest of possible majorities in Congress and their control of the White House to pass significant legislation such as voting rights, gun control, health care, and environmental legislation. Democrats expect no flexibility on these issues from the Republican side.    

The two -trillion-dollar American Rescue Plan Act of 2021 was passed because Congress voted to adopt the budget reconciliation process. This legislative mechanism process expedites the passage of specific budget legislation while avoiding the Filibuster (although not completely, as the minimum wage provisions needed to be stripped as they fell afoul of the narrow exception to the Filibuster). 

Senators Joe Manchin (D- West Virginia) and Krysten Sinema (D- Arizona) oppose the removal of the Filibuster. Manchin clearly stated that his main objective is to restore bi-partisan consensus to Congress. Indeed, the Filibuster was designed to enable minority parties to have a say in the final legislation. Although it has reflected a problematic history of Southern intransigence to civil rights legislation, it has, for many years been considered a mechanism of inclusion and consensus, a way to solve problems and get to the end Lately, however, the Filibuster turned into a method simply of blocking rather than negotiating with the majority party.

Manchin is correct in that eliminating such procedure could turn against the Democrats in the future. On the other hand, those who criticize Manchin for being naïve and predict that Republicans will use the Filibuster to block legislation are also correct. 

Manchin’s words may be annoying to some, but I must express my admiration for Senator Manchin for attempting to restore the old consensus.  

While it is true that the Filibuster has a historical dark, it , it is not simply a relic of the Jim Crow era, (despite that criticism leveled against it by former President Barack Obama and more recently, President Biden). Richard Arenberg, former senior staff for Democratic Senators Carl Levin and former Majority Leader George Mitchell, argues that the fact that the Filibuster once served an evil cause does not make it inherently evil. It only makes it functional. The Filibuster, according to Arenberg, gives the minority the chance to raise issues or propose amendments that can satisfy the greater number of Senators to fulfill the will of the people. 

The fact that the Filibuster fosters negotiation and compromise is welcome. However, it can only survive if there is an appropriate political culture that can support it. That is, its justification becomes reality if negotiation, not obstruction, is the actual goal of the minority. The jury is still out on that.

Because all states, large and small, have two senators, it is possible to give veto power to a minority in the Senate. On the other hand, given the lack of proportion between Senate representation and population, it is possible in the future, as it happened in the past, that this minority may turn into a majority. Therefore, the absence of Filibuster could backfire. 

For example, in 2013, then-Senate Majority leader Harry Reid (D-Nevada) orchestrated a move, the so-called nuclear option, to lower the Senate vote threshold to 51 to confirm most presidential appointments and judges (not including nominees for the Supreme Court).

The use of the nuclear option opened up the door a few years later to then-Majority Leader Mitch McConnell (R- Kentucky) to use the nuclear option to confirm Supreme Court nominee Neil Gorsuch. 

This “nuclear” precedent later enabled the confirmation of the more controversial Supreme Court Justice nominee Amy Coney Barret. Given the irreversibility of long-term lifetime appointments, it seems that the Filibuster, if it has validity anywhere, would be useful in judicial appointments. Yet these were the first to go.

President Biden stated that there were five times more Filibusters in the last year than in the five decades between 1917 and 1971, perhaps a sign of our increasingly bipolar society. 

But will the elimination of the Filibuster exclude minority input? If yes, how can this be remedied? 

While the Filibuster was already reformed a number of times – as to the number needed, the availability of cloture, the necessity for a speaking Filibuster, reconciliation, and judges – it has survived. I am not sure either its elimination or the return to unending talk is the right solution. What is needed is a larger political move: a conscious decision for the majority to accept compromise and for the minority to recognize the majority’s temporary upper hand.

Historically, in the United States, compromise was the name of the game. Although the Senate has a right to veto cabinet members or Supreme Court justices, it has traditionally tended to approve them. Even someone like Justice Antonin Scalia, considered controversial to many, was approved with support from senators who profoundly disagreed (98-0). From the end of the Civil War to 2016, the Senate rarely directly denied a Supreme Court nominee, (although a number of nominations were withdrawn, but generally because they were unfit). The two famous rejections, John Parker and Robert Bork, fell by the sword of racial equality, the first as himself a racist, the second as endorsing an agenda that woud allow a return to segregation, as he wanted to overturn Brown v. Board of Ed. It is easy to argue that the Filibuster rule was generally a sucess for 150 years in terms of nominations. As scholars Steven Levitsky and Daniel Ziblat point out, the constitutional system of checks and balances worked because people adopted mutual toleration norms and what they call “forbearance ” or self-limitation (with the notable exception of the McCarthy era).

The current political polarization results from extreme partisan politics, sharp ideological differentiation, cultural and identity wars, and a concept of politics that blindly distinguishes between friend v. foe. When adversaries become enemies, the Madisonian consensus disappears. The parties dictate the agenda. They turn more ideological and less responsive to societal needs. Political polarization leads to further and more radical social polarization exacerbated by an intense marketing campaign and propaganda.

I do not see how elimination or maintenance of the Filibuster could change this fundamental problem. Removal of the Filibuster will enable the Democrats to pass their large-scale agenda, unacceptable to Republicans. On the other hand, keeping the Filibuster will allow the Republicans to block any legislation. In any case, if the Republicans returned to be a majority party, the situation will repeat the cycle with an additional quota of resentment.

In other words, as in the past, the restoration of compromise and political tolerance depends only on political will.   The Filibuster was generally not an instrument of obstruction in history.. The Filibuster itself has had modest and a too rarely recognized benign minimal impact.

The challenge is to restore the culture of negotiation to set the pace for our future and the future of new generations. Senator Manchin should be commended for having that vision in mind. 

About Luis Fleischman

Luis Fleischman is a professor of Sociology at Palm Beach State College, the co-founder of the think-tank the Palm Beach Center for Democracy and Policy Research. He is also the author of “Latin America in the Post-Chavez Era: The Threat to U.S. Security,” and the author of a forthcoming book, “The Middle East Riddle: The Arab-Israeli Conflict in Light of Political and Social Transformations in the Arab World,” to be published by New Academia.”