Joe Manchin Is Right: Reform the Filibuster

Congress, intended to be the most important body of government, is less relevant as real policy is made by administrative rules

President Biden’s $1.9 trillion COVID relief package passed by a razor-thin majority in the Senate. Because of the current 50-50 makeup of the Senate—with Vice President Kamala Harris serving as a tie breaking vote when necessary—Democrats had to use the budget reconciliation process, which allows a bare majority to pass certain legislation. However, the rest of his legislative agenda is very much in doubt, given that it can’t be passed using the same method. This has led to some to call for the complete elimination of the filibuster, which necessitates 60 votes for the passage of most bills.

Biden himself has resisted calls to end the filibuster, but they are mounting. Even West Virginia Democrat Joe Manchin, the “King of the Senate,” recently floated “reforming” the filibuster, rather than ending it. His reasoning is simple: “The filibuster should be painful … and we’ve made it more comfortable over the years,” but that it should also preserve the “involvement of the minority.”

Manchin is right. The modern filibuster was the result of happenstance and it creates perverse incentives that degrade our institutions. It ought to be reformed to preserve the ability of the minority’s voice to be relevant, and to inflict political cost on the majority, without permanently thwarting the majority’s will. Intelligent conservatives ought to support him.

The history of the filibuster fills entire books. But the essentials aren’t difficult: The filibuster came about in what amounted to a mistake when rules changes in the Senate inadvertently allowed for endless debate. Using endless debate to derail legislation became a rarely used, but still lionized, tradition. Most Americans probably recognize it from the classic film Mr. Smith Goes to Washington, in which Jimmy Stewart played an idealistic freshman senator who held forth on the Senate floor for a full 24 hours to prevent a vote on a bill that he deemed corrupt.       

In reality, its history is more sordid and messier. In 1935, Huey Long spoke for 15 hours in hopes of requiring Senate confirmation of more jobs in FDR’s National Recovery Administration. Strom Thurmond famously held the floor for more than 24 hours to oppose civil rights legislation in 1957. More recently, in 2013, Rand Paul “filibustered” (the technicalities are disputed) President Obama’s CIA director nominee for nearly 13 hours. 

But this type of filibuster is mostly gone. First, the rules were changed so a supermajority could end a filibuster. Then, in the 1970s, rules were changed to allow for the Senate to acknowledge the filibuster and to move on to other business. 

But much like the unintentional creation of the filibuster, this rules change had an      unintended side effect. The filibuster became less painful, as Manchin noted, allowing a minority to block legislation but requiring neither personal willpower, nor sacrificing other priorities. Just announce a filibuster and business would move on to something else.

For decades, this was largely unimportant as filibusters were not often used as partisan weapons. In such an environment, any talk of filibuster reform would seem quizzical. What would be the point?

Things changed during George W. Bush’s Presidency with the 2003 filibuster of Miguel Estrada for a federal judgeship, along with numerous other judicial nominees. This years-long filibuster by a partisan minority was unprecedented, and began to unravel the system.

What had started out as a tool to manage the filibuster devolved to allow an irresponsible minority to permanently block the will of the majority.

The situation inevitably got worse, with the minority increasingly being obstructionist and the majority chipping away at the minority’s rights. Particularly with the judicial filibuster, the Democrats have overwhelmingly been the villains, but both parties have adopted to the new obstructionist norm. Filibuster rules now allow a simple majority to pass any nomination, but not any legislation. That leads us to our current situation.

We can be relatively sure, from history, recent events, and common sense, that the current situation will not last. Former Senate Marjority leader Harry Reid’s 2013 decision to “nuke” the filibuster for most nominations, a maneuver that, essentially, allowed a bare majority to break the rules to change the rules, crossed the Rubicon and it cannot be uncrossed. Leader Mitch McConnell expanded Reid’s rule to include Supreme Court nominees, and Manchin is now responding to pressure to end it, period.

Constitutionalists should not want the current situation to continue.

As Justice Scalia opined, the core of the Constitution is the separation of powers and federalism. When any part of the constitutional machinery doesn’t work, it breaks down this carefully crafted balance. And that’s precisely what the modern filibuster does.

Obama’s “pen and phone” strategy, essentially finding administrative work arounds to Congress, was partly born out of the fact that he was well to the left of the majority of the country. But it was also born out of the fact that Republicans found it much easier, politically, to confront him rather than moderate his proposals. As Ramesh Ponnuru points out Republicans under Obama were simply building on the same political strategy used by Democrats in 2005 when they  refused to work with Bush on his social security reform proposals. Of course, Trump copied the “pen and phone” strategy, and President Joe Biden is second only to Franklin Roosevelt in terms of executive orders signed in his first two weeks.

While the filibuster is not the only piece of this puzzle, it is a significant piece. Complicated questions of social, economic and environmental policies will be decided not by legislative compromise in the public eye but by bureaucratic workarounds, largely behind closed doors. Congress, intended to be the most important body of government, is less relevant as real policy is made by administrative rules, and the courts, which tell the bureaucrats if they’ve gone too far.

As centrist commentator David Brooks recently said, “In theory I support the filibuster. But in these circumstances two more years of government paralysis would be a disaster.” He makes a point. Longtime conservative Quin Hillyer once asked, “Why should just two-fifths of one-half of a single branch be able to override a majority and the prerogative of the executive?” Further, he declares it an “affront to the Constitutional spirit.” He’s right.

Moreover, it creates instability. Businesses can’t make long-term plans and people never know when the rules on sensitive social issues will change with the flick of a wrist. This is to say nothing of politicians overspending: It’s one of the few tangible things members of Congress can actually deliver for their constituents.

The one other thing politicians can deliver, in large part due to the filibuster, is endless grandstanding on issues important to their base, that have no hope of passing. 

Here’s an example: The Equality Act, which purports to codify the Supreme Court ruling in Bostock v. Clayton County decision that said employment discrimination against gay or transgender people is a violation of Title VII of the Civil Rights Act, but really goes much further, recently passed in the House on a party-line vote. It would eviscerate religious liberties, to the delight of single-issue activists, and would undoubtedly cause a massive backlash and endless litigation were it to become law. This would cause significant problems for swing-district Democrats if it ever was actually implemented. But here’s the dirty little secret: Both sides know it doesn’t really matter. It will never overcome a Senate filibuster.

A compromise bill, the Fairness for All Act, would grant additional protections to LGBTQ individuals but also protect religious liberties. However, Democrats can ignore a reasonable compromise because they know it has no chance of overcoming a Senate filibuster. In the meantime, nobody is sure what rights they really have, and lawsuits and administrative actions will fly back and forth.

This is just one example, each situation is different, and the filibuster isn’t the only part of the dynamic, but it’s a significant part. This creates both bad behavior among elected officials, who never really have to confront the consequences of their stances, and cynicism on the part of the public.

Manchin didn’t mention specific reforms, but good proposals have previously been championed by both parties. Former Sens. Tom Harkin (D-Iowa) and Joe Lieberman (D-Connecticut) introduced a proposal in the 1990s that would allow for filibusters to occur, but to require a lower threshold of votes to overcome a filibuster over time, i.e. first it would take 60 votes, then 57, then 54, until ultimately just a bare majority. This concept was later championed by Senate Majority Leader Bill Frist of Tennessee as well. Some version of this sensible proposal, giving the minority plenty of time to make its case, but eventually, giving way to a clear majority, should be embraced.

The real issue is not if the filibuster will change, it will. The current situation is unsustainable. It will either change deliberately and wisely, along the lines of the Harkin/Lieberman proposal, or suddenly as part of the current disastrous downward spiral.

I’m hoping for the former.