What defenders of the filibuster want is minority rule – and a government unable to deliver anything meaningful to its people
On Joe Manchin’s US Senate website, you can click on “Help from Joe”. American democracy (not to speak of another Joe) desperately needed his help this week. What it got instead was notes cribbed from constitutional law 101, selective and self-serving worship of a distant deity known as “the Founders”, and sanctimonious invocations of bipartisanship.
The battle to secure free and fair conditions for voting through a simple Senate majority seems lost for the moment; and Republicans – who call for bipartisanship only when they happen to be in the minority – are gloating. But we should not move on so quickly. Otherwise, like dirt, the deeply misleading claims about the filibuster preventing a “tyranny of the majority”, advanced by Manchin and commentators thinking the point of politics is moderation for its own sake, might come to stick.
The authors of the US constitution did indeed fear a tyranny of the majority. And they were agitated by the thought of decisions taken without proper deliberation; after all, even these men of the Enlightenment could not shake longstanding prejudices about the great unwashed masses falling victim to their “passions wresting the sceptre from reason”, as James Madison put it (adding for good measure that “had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob”.)
Yet the framers worried no less about a tyranny of the minority. While they built in plenty of checks and balances, they did not seek to give veto powers to a minority within the Senate. After all, the latter was already through other designs the place for what Jefferson called a “natural aristocracy” to cogitate and deliberate. The chamber was not directly elected by the people before 1913, but both before and after, it has had an inbuilt bias for minorities, since every state, no matter how small, gets two senators. Never mind the filibuster: we have long been in a situation where Republicans can rule without a majority of the country behind them (for instance, by ramming through appointments to the US supreme court).
Politicians like their constitutional legacies a la carte: what better than having the imperative to preserve your personal power be directly deduced from the wisdom of the framers? Yet an honest reckoning with history must face up to the fact that much we take to be indispensable for democracy was not only unforeseen in the 18th century, but positively abhorrent to the men meeting in Philadelphia.
A supermajority requirement is not somehow neutral. It means opting for the status quo
Most important, the Framers sought to avoid the very thing that today makes Manchin’s calls for consensus an act of bad faith: political parties, and an uncompromising spirit of partisanship (or what the Founders called “faction”) in particular. Evidently, Manchin himself does not quite believe in deliberation; why else have a huge placard with big, shouting letters next to him while delivering his speech? And just as evident: were he really so concerned about policies always having “input from all corners of the country”, why not require unanimity? If 51 can constitute a tyranny of the majority, why can’t 60?
Biden asks what Republicans are for, and what McConnell wants, but the answer has been obvious for a decade or so: make his presidency fail. After all, the present minority leader honed his dark arts of political destruction during the Obama years. Of course, there is nothing wrong with an opposition opposing. In fact, that’s its job: it is supposed to offer a systematic alternative to what those who gained a majority are trying to do and hold those in power accountable. But that’s really as far as it goes, when it comes to what Manchin calls “the opportunity for the minority to participate”.
A minority should have its say – but a majority must get its way. To enact what you have been empowered to enact does not mean, as Manchin puts it, “abandoning our Republican colleagues on important national issues”. It means not abandoning the people who put their trust in your ability actually to get stuff done.
What defenders of the filibuster want is for the minority de facto to hold power. A supermajority requirement is not somehow neutral. It means opting for the status quo in a political system that its defenders, from the ancient Athenians onwards, always admired for its capacity to learn and innovate. Innovation does not mean you rush headlong into things – again, ancient prejudices echo when Manchin associates abolishing the filibuster with encouraging “volatility”, “haste” and “transitory passion”.
The Trump tax cuts were the most rushed legislation in recent years; the measure was as incomprehensible to many senators voting for it as it was a delight for the lobbyists who had written it. Conversely, laws to reduce gun violence have been debated for years and have enormous, well-considered support among the supposedly fickle and irrational people – and yet something like the bipartisan Manchin-Toomey Bill, agreed after the Sandy Hook massacre, died in a political institution that makes some more equal than others.
Plenty of historians have pointed out the use of the filibuster to preserve white supremacy. But even if the filibuster were not what Obama called a “Jim Crow relic”, the willful misunderstanding of legitimate minority input as minority rule is unacceptable: it disrespects the majority of citizens. There is no evidence that it leads to more bipartisanship; and there is no reason to believe that, as the master of mixing the maximum number of metaphors from West Virginia says, its end would “pour fuel on to the fire of political whiplash and dysfunction that is tearing this nation apart”.
Even if one is not particularly concerned with the finer points of democratic theory (such as: if you get fewer votes, you lose the election), one should find the filibuster unacceptable because it disables government. As Biden keeps saying, democracy has to deliver for citizens. A system that turns into what Francis Fukuyama – not exactly a raving lefty radical – calls a vetocracy cannot do so.
Jan-Werner Mueller teaches at Princeton and is a Guardian US columnist. His most recent book is Democracy Rules