Sen. Joe Manchin (D-West Virginia) recently argued that eliminating the filibuster would lead to “serious problems.” According to Manchin, “the Senate is different” than the House, yet “for some reason, people are trying to make the Senate operate the same as the House,” even though “our founding fathers never intended that.”

First of all, eliminating the filibuster will not lead to serious problems. Most U.S. states and most democratic countries around the world don’t allow for legislation to be filibustered. Many such states and countries function just fine. Giving the minority party veto power over widely supported legislation is unnecessary when there are other strong checks and balances in place.

Second, while the Senate today operates much differently than the House thanks to the filibuster, that is not what the “founding fathers” intended. Notably, they did not include the filibuster in the U.S. Constitution, and in 1789, both the Senate and House rulebooks allowed a simple majority to end debate.

Eventually, the Senate decided to revise its rulebook upon the recommendation of Vice President Aaron Burr. One of the rules that was eliminated in 1806 at Burr’s behest was that which allowed a simple majority to end debate. This change was exploited in 1837 when the Senate endured its first filibuster.

Manchin argues that if “regular order in the Senate” is abandoned, “our nation may never see stable governing again.” One could argue that after former President Donald Trump lost the 2020 election and refused to concede, characterizing the U.S. system as unreservedly “stable” is perhaps overly generous.

Setting that point aside, it’s important to note that “regular order” in the Senate has evolved over time, as the rules related to the filibuster have changed on several occasions. For example, in 1917, 1974, 1975, 2013 and 2017 senators willingly voted to weaken the filibuster.

In other words, over the last 100 or so years, the Senate has been slowly trying to revert to the filibuster-free era that existed in 1789. Although conservatives frame attempts to abolish the filibuster as a progressive power grab, in reality, it moves the rules that govern the U.S. closer to the original intent of the framers of the Constitution.

Manchin asserts that, “[t]he filibuster is a critical tool to protecting … our democratic form of government,” and as such, “[t]here is no circumstance in which [he] will vote to eliminate or weaken the filibuster.”

Recall that, at present, 60 votes are needed for legislation to be filibuster-proof. This means that senators from the 21 least-populous states (which would together be 42 senators) could collectively prevent the passage of legislation. The population of the 21 least-populous states equates to only about 11 percent of the country. In essence, the filibuster allows for just over a tenth of the population to hold the rest hostage. This is not the protection of “the minority’s rights,” as Senate Minority Leader Mitch McConnell purports. Rather, this is tyranny of the minority.

Recently, the Senate parliamentarian ruled that the budget reconciliation process, which can be used to bypass the filibuster, may be able to be used more often than previously thought. Manchin’s refusal to consider abolishing the filibuster, or even simply weakening it by utilizing the budget reconciliation process, effectively means that McConnell wields a veto on Biden’s legislative proposals, even though Democrats control the presidency, the House and the Senate.

Given that the Senate is evenly divided 50-50 between Republicans and Democrats (along with independents that caucus with them), a common retort is that the country itself is also evenly divided, and as such, Biden’s slim majority shouldn’t be able to “ram through half-baked ideas.” However, because of the population differences between states, in actuality, the 50 Democrats (and their independent colleagues) represent roughly 40 million more Americans than the 50 Republicans. Furthermore, anything that’s dangerously undercooked would likely be ruled unconstitutional by the conservative-leaning Supreme Court.

An exasperated Woodrow Wilson once stated that the “Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.” Manchin likes to portray himself as a bipartisan warrior fighting to protect the world’s greatest deliberative body. Unfortunately, the Senate is not the world’s greatest deliberative body, nor will it ever be, as long as the inherently undemocratic filibuster remains.

 

 

This post was originally published on Truth Out