The steadfast opposition of a pair of willful Senate Democrats to filibuster reform has imperiled their party’s entire political program and set the stage for what could be a massive defeat in the 2022 off-year elections. That’s not exactly news, but it encompasses a cautionary tale and an expression of extreme irony.
First, let’s consider the players. The recalcitrance of West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema is well known. Their willingness to be water carriers for Senate Minority Leader Mitch McConnell, who cherishes the filibuster, can be explained but not justified. In Manchin’s case, it can be argued his stance is necessary for survival in a conservative state, though his desire to succor favor with West Virginia’s fossil-fuel industry seems equally motivating. As for opportunist Sinema, she simply appears to revel in being an unpredictable wild card, necessitating constant high-profile courting by her party leadership.
Each of these publicity hounds has chosen to put personal gratification and self-interest above their party and their country. Apparently, all that matters is that they preserve their independent “brand” and retain their donors, no matter what else happens. Manchin and Sinema are not alone, of course. Rumor has it that several other corporate Democrats — we’re looking at you, Dianne Feinstein — share their view, but are reluctant to say so publicly, letting political divas Manchin and Sinema speak for them.
The fact that all the Democratic names bandied about as being pro-filibuster are so-called moderates says a lot. It’s necessary to nominate moderates or centrists, we’re told, in order to win swing states and thereby control Congress. But if those successful moderates end up supporting GOP positions and voting against progressive legislation, what’s the point? As of the moment, it’s Democratic fence-straddlers, allied with Republicans, who are preventing anything meaningful from being accomplished. That’s the cautionary tale behind the filibuster stalemate.
There’s also a major irony involved here. Sinema, Manchin and company probably don’t know it, but in championing the filibuster, they’re endorsing an institution created to serve the antidemocracy interests of the conservative South. (See my previous column: “Southern Discomfort,” 10/15/21 TPP.)
The Constitution says nothing about the filibuster; it’s an extra-constitutional device that grew like Topsy due to the Senate’s tradition of unlimited debate. Fittingly, the first Senate filibuster (a word of dual Dutch and Spanish derivation meaning freebooter or pirate) was employed in 1825 by a Southerner, Virginian John Randolph, to block federal legislation thought inimical to the South’s agrarian interests.
This first filibuster (and all those up until the 1970s) was a “talking” filibuster like the one portrayed in the movie “Mr. Smith Goes to Washington,” in which Jimmy Stewart, as an idealistic young senator, holds the floor to the point of exhaustion on behalf of a good cause. That’s no longer the case. Today, the “silent” filibuster prevails, allowing a minority of 41 like-minded senators to merely announce a permanent virtual filibuster on any piece of legislation they oppose, thereby killing it without actually speaking at length to block enactment; exceptions include annual budget reconciliation, fast-track trade agreements, and military-base closures.
The silent, or virtual, filibuster is, of course, the source of the 60-vote supermajority threshold required to pass legislation in Mitch McConnell’s Senate and the source of McConnell’s power. Virtual filibusters, like all filibusters historically, can be ended by votes of cloture. Up to 1806, a simple majority vote shutting off debate would do the job, but from that time until 1917, unlimited debate became the rule, and cloture was suspended for a century.
Then, in 1917, Senate Rule 22 was adopted, permitting senators to break a filibuster with a two-thirds majority that was subsequently reduced to three-fifths (a still-formidable 60 votes) in 1975. Liberal reformers want to reduce it further to the simple majority (presently 51 votes) intended by the Republic’s founders.
Numerous attempts have been made to get around the virtual filibuster since the arbitrary 60-vote requirement superseded the need for strenuous, histrionic singular performances. In 2013, Democrats invoked the “nuclear option,” ending silent filibusters of executive appointments and lower-court judicial nominees. Majority Republicans responded tit-for-tat fashion in 2017 by eliminating filibusters of High Court nominees. But for virtually everything else, the filibuster reigns supreme, producing what recently retired Sen. Tom Udall (D-N.M.) called “deep paralysis” in government.
So, where does the South fit into the picture? The first thing to understand is that deep paralysis is what the South, historically the force behind the filibuster, had in mind from the beginning in terms of protecting its perceived interests, namely, the institution of slavery. The Senate, home of the filibuster, was itself a Southern institution designed to protect a besieged-minded conservative section of the country through overrepresentation of low-population states (largely Southern at the time) and the acquired ability to slow down national legislation through arcane rules and procedures. Senate historian William S. White (“Citadel,” 1957) called the purported world’s greatest deliberative body the South’s enduring revenge for Gettysburg.
Robert A. Caro, another chronicler of Senate history and mores (“The Years of Lyndon Johnson: Master of the Senate,” 2002) also views it as an essentially Southern institution in flavor and structure, one created in fact by Southerners, principally Virginian James Madison, at the founding. Southerners subsequently used the Senate’s seniority system and tradition of unlimited debate, Caro points out, to dominate legislation and block liberal initiatives. This included, above all, employing the filibuster to counter anything thought threatening to their section, such as civil-rights proposals.
The upshot is that by the modern era, the filibuster had become the primary political tool against civil rights. In 1922 and 1935, it served to prevent passage of the first federal anti-lynching bills, and according to the Brennan Center for Justice, half of all successful filibusters between 1917 and 1994 involved stoppage of civil-rights measures.
Kentuckian Mitch McConnell is carrying on the great Senate antidemocratic tradition and broadening its scope to frustrate liberal lawmaking in general. Of the 2,000 filibusters held since 1917, fully half have taken place in just the last 12 years, the period of McConnell’s senatorial dominance and mastery of tactical filibustering.
Sens. Manchin and Sinema need to be asked why they insist on helping to perpetuate the continued existence of an instrument whose main purpose is (and always has been) to hold back progress.
Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He holds a doctorate in American history and is the author of two prizewinning books.
From The Progressive Populist, November 1, 2021
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