Wednesday, April 14, 2021

Manchin Channels Chamberlain: Will We Have Peace in Our Time in the Senate?

by Neil H. Buchanan

Last week, I laid out a plan to give Senator Joe Manchin some wiggle room regarding the filibuster, which he had defended up to that point with varying degrees of fervor.  The unremarkable premise of my column was that politicians who say, "I will never do X," can still do X at a later date, relying on any number of cover stories.  My specific suggestion was that Manchin could pull a trick play from Mitch McConnell's book and -- just as McConnell had done during the debt ceiling debacles during the Obama years -- vote to suspend and then reinstate the filibuster.  "See, I didn't vote to eliminate it, or even change it.  It still exists!"

At about the same time that I hit "Publish" on that column, The Washington Post was finalizing an op-ed written by Manchin, which they ran under the headline: "Joe Manchin: I will not vote to eliminate or weaken the filibuster."  It turns out that I am more of a cockeyed optimist than I knew, because my first thought was: "Hmmm, 'eliminate or weaken,' eh?  Well, that's easy enough.  He could support plenty of changes in the filibuster -- flip the present-to-vote requirements, change the supermajority threshold, expand reconciliation beyond budgetary matters, and so on -- and call it 'strengthening' the filibuster.  No problem."

Upon reading the piece, however, it became depressingly clear that Manchin is not at all interested in setting up escape hatches.  He is, by all evidence, fully convinced that his duty in life is to protect the filibuster as it currently exists -- which means in a form that has only been around for a few decades, and that has been further adjusted several times along the way -- and he thinks that this is the height of patriotism.

Indeed, Manchin even disparaged the reconciliation process, by which a very limited number of budgetary bills can pass with a simple majority vote.  To read Manchin's words, it appears that he might not even vote under current rules for those bills -- even if he favors them on the merits -- because he thinks that the current rules are too democratic.
 
It is true that the late Senator John McCain once waxed poetic about returning to "regular order" in the Senate, only to turn around almost immediately and vote for the Republicans' disastrous stroke-the-rich tax bill in December 2017, which had been rushed through without even a committee hearing or mark-up.  Maybe Manchin will do the same, but I have doubts.  What is happening?

I have nothing to add here to what I wrote last week about the political incentives that ought to be driving Manchin right now.  The most direct, and certainly the only guaranteed, way to stop Republicans from continuing to rig future elections is to pass H.R. 1 and H.R. 4, neither of which will receive even one Republican vote in the Senate (with at least 10 Republicans needed, if the filibuster remains in place), and neither of which can be run through reconciliation.  Manchin's future relevance is entirely premised on Democrats holding the Senate, but he is acting as if that does not matter to him.
 
I take him at his word.  Perhaps he thinks that his less-than-50 percent reelection win in 2018 means that he is doomed if he runs again in 2024, or maybe he simply has no problem with the Republicans' autocratic designs.  Maybe he thinks that the January 6 insurrection -- and especially the Trumpian revisionist history about that terrible day -- was not a warning that things could become infinitely worse by giving Republicans more minoritarian power.  In any case, unless Manchin changes his mind about the filibuster, he is not the only person who will become politically irrelevant starting in 2023.  Sixty percent of the country will be effectively disenfranchised, too.

In the title of this column, I invoke former British Prime Minister Neville Chamberlain, who famously negotiated a deal in 1938 with Adolf Hitler that made sense only if Hitler was a reasonable and trustworthy negotiating partner.  I say "famously" even though most people who have heard his name at all only know that Chamberlain and "appeasement" are politically synonymous.  Indeed, never having studied that era of history, I mostly knew about Chamberlain because of Elvis Costello's 1984 song, "Peace in Our Time."

I readily admit that this is one degree of separation from Godwin's Law, because although I am not calling Manchin a Nazi, I am certainly drawing an analogy between him and someone who enabled the Nazis.
 
As an aside, I should note that even a little bit of online research reveals that there is some disagreement among historians about Chamberlain's legacy, with the original brutal judgments against him now being challenged by the argument that he did not have any better options at the time.
 
In short, this might be one of those many situations in which the waggish retort follows this pattern: "I called Mr. X a sleazy rat.  I'd like to apologize to sleazy rats everywhere."  Likening a person to Chamberlain when that person has real power and nothing stopping him from using it might indeed be unfair to Chamberlain, not the other way around.

Harsh?  Absolutely.  But because I continue to believe that our constitutional system is hanging by a thread, and that we have only a few years (at most) to save it, it is essential to be clear-eyed about the stakes.  Manchin has every reason in the world to agree to eliminate or pare back the filibuster, and if he were to agree to do anything along those lines, it would happen.  (Other semi-wavering senators would surely view Manchin's approval as dispositive.)

So Manchin has the power, and thus the responsibility, to act.  Having chosen not to step in to stop the destruction of our political system, he asks The Post to allow him to explain his reasoning to a puzzled world.  With so much on the line, this had better be good.

Never mind.  I initially considered writing a line-by-line rebuttal to the Manchin op-ed, but I chose not to do so for two reasons: (1) Even though he is a U.S. Senator, it would still feel like "punching down" to unload on him in the way that his op-ed deserves; and (2) Even as a former competitive debater, I find this kind of thing more depressing than engaging.

Certainly, plenty of the usual high-profile commentators have already skewered Manchin.  The Post's Jennifer Rubin, for example, had a particularly fun time of it.  She quoted her colleague Ashley Parker's comments about Manchin on "Meet the Press":
"[O]ne of the challenges sometimes in understanding and parsing exactly what he’s saying is that he is often not looking at sort of the holistic picture. … [H]e often says things that seem very contradictory because he’s answering one question or another and not necessarily answering the broader thing of, he wants bipartisanship."
 Rubin then added:
"Instead of trying to make sense of Manchin’s impulsive answers and contradictory statements, the White House should enlist him in this project: Find 10 Republican senators who will support a bill that all 50 Democrats will still support. Manchin obviously has a completely different conception of the GOP than most of the political world. So let him have a crack at it."
Finally, she argues that "he should be compelled to tell us if he wants to give up on infrastructure, voting rights and more to preserve the filibuster."  The problem is that he has already told us that this is exactly what he wants to do.  Her colleague Paul Waldman offered a more cynical view of Manchin's moves, describing them as a way for him to hold center stage.  Jonathan Capehart mocked Manchin, likening him to the apocryphal boy who sees a pile of manure and is sure that there is a pony nearby, with bipartisanship being Manchin's imaginary pony.

Even though I have chosen not to provide a detailed rebuttal to Manchin's op-ed, I can offer this limited response to the premise of his piece.  He begins with a whopper:
It’s no accident that a state as small as West Virginia has the same number of senators as California or Texas. It goes to the heart of what representative government is all about. The Founding Fathers understood that the challenges facing a rural or small state would always be very different from a more populous state. Designating each state with the same number of senators — regardless of the population — ensured that rural and small states and the Americans who live in them would always have a seat at the table."

Yes, it truly is "no accident" that small states have the same number of senators as large ones.  That is not because of a principled argument in favor of democratic distortion, however, but merely a historic compromise forced on the nascent country in order to achieve unanimity.  No one was going to deny the smaller states a seat at the table.  They simply demanded bigger seats than they deserved, based on the arbitrary lines that had been drawn by the empire against which they had recently rebelled.

Over-representation of small states in the Senate does not "go to the heart of what representative government is all about."  If it did, we would make accommodations every time that a minority of people face "challenges" that are different from the majority's challenges.  Police forces target racial minorities?  Give disproportionate representation on city councils to minority neighborhoods.  Confederacy dead-enders in southern states perpetuate Jim Crow laws?  Give minorities and white liberals extra votes.

We do not replicate the Senate's unrepresentative format anywhere else in the United States, and for good reason.  It is unrepresentative government at its worst.  Even more egregiously, Manchin compounds his historical ignorance (and simple illogic) by following up that paragraph with this kicker: "The filibuster is a critical tool to protecting that input and our democratic form of government."
 
So it is not even sufficient that small states are over-represented in the Senate in the first place.  To "protect[] that input," we also have to have a filibuster.  And the filibuster's super-majority requirement thus protects "our democratic form of government"?  Right.  (Side note: I am convinced that Manchin himself wrote the piece, because no staffer would write anything so transparently bad, knowing that it would reflect poorly on the boss.  Only Manchin could have come up with this mess.)
 
And all of that comes before he claims that the filibuster is necessary to force senators to act in bipartisan good faith and to compromise.   When facts contradict theory, ignore the facts.

I certainly join those who hope that Manchin might yet change his mind.  If I were to meet him in person, I would try to cajole him rather than leading with, "Don't be another Neville Chamberlain!"  Even so, this is truly one of the most perversely fascinating moments in history.  With the survival of the republic obviously on the line, one confused man holds all the power.  What could go wrong?

7 comments:

Michael A Livingston said...

I think the personal nature of these attacks discredits Dorf on Law. They are also unlikely to be effective. Like similar attacks from outside her home state on Susan Collins, they make him less likely to change his opinion, and more likely to be reelected should he choose to run.

Michael Byrnes said...

100% off topic, but: I just listened to part of Kristen Clarke's conformation hearing, and Ted Cruz was exactly as you described in your recent post. The Chair asked that he allow the witness to respond and he immediately flipped into performative outrage mode.

Michael Byrnes said...

The most frustrating fact about Manchin is this: his own bipartisan bill (Manchin-Tilley background check bill) was killed by the filibuster. If anyone should understand that the filibuster DISINCENTIVIZES bipartisan legislation, it should be him.

Someone on twitter pointed out that more than half of the cloture votes held during the whole history of the US Senate have occurred during Manchin's tenure (he arrived in the Senate in 2010).

Michael C. Dorf said...

I think Michael Livingston's inability to distinguish forceful criticism from personal attacks discredits Michael Livingston. His comments are also unlikely to be effective at changing the mind of Professor Buchanan or me. But I'm delighted to learn that Professor Livingston thinks that anything I or one of my co-bloggers writes here will affect the outcome on an election, in West Virginia no less!

kotodama said...

I think it's just hard to take Prof. Livingston seriously when he can't even identify one specific item he claims is a "personal attack". Unless that claim just applies to the *entire piece*, in which case I think it's also hard to take seriously.

Michael Byrnes' comments are much appreciated. I hadn't realized how relatively short Manchin's tenure has been. It seems quite bizarre to me that Manchin and Sinema are so invested in the filibuster—presumably based on "tradition"—but one hasn't even been through 3 full terms, and the other is just a freshman. For example, Schumer in contrast has been around just about twice as long as Manchin, and he's not particularly wedded to the filibuster. That seems rather backwards.

CJColucci said...

Have there ever been issues on which the small states-big states divide is truly relevant? On what issues, other than representation itself, would New Jersey, Rhode Island, Delaware, and North Carolina have been on one side and Massachusetts, New York, Pennsylvania, and Virginia been on the other?

Greg said...

Leaving aside the quality of Manchin's response:

What makes you think any lasting progress can be made after eliminating the filibuster? Won't the other party undo everything you've done the moment they are back in power?

This is why requiring a legislative supermajority has a big advantage in any 2-party system: it tends to produce laws that have staying power. Arguably, it's a problem that the house *doesn't* have a similar supermajority requirement.

As long as both sides honor the supermajority requirement, government tends to preserve the status quo. Once one side eliminates it, it's gone for both sides, and hard to get back. Preserving the supermajority requirement probably IS more important than passing any specific bill, if you believe there is value to continuity of government.