If Only Mitch McConnell Could Show Joe Manchin How to Foil Mitch McConnell

by Neil H. Buchanan

Although Republicans in 2021 have taken "performative politics" into uncharted territory (just ask Mr. Potato Head), politics has always been in large part about form and not substance.  The point is arguably best illustrated with an extreme counterexample.
In 2009-10, the Obama Administration committed what in hindsight looks like political malpractice by giving everyone a tax cut but designing it specifically so that it would be all but invisible.  Why?  Some convincing economic research suggested that many people are likely to save big chunks of a tax cut, whereas the entire point of the Obama stimulus plan was to get people to spend.  We did not want people saying, "Oh, I'm getting $300 from the government, so I'll stick that in the bank for a rainy day," or "I'll use it to pay off some debts."  Instead, the maximum impact would come from having a few extra dollars show up in every paycheck, which people would then spend without even thinking about it, goosing the economy.  The same logic further suggested that Obama could not brag about the money that he was adding to paychecks, because that would tip people off to the virtuous ruse.  Good economics, bad politics.

Often, politicians want to vote against bills that they actually favor (or vice versa).  Prior to the bloody political battles over the debt ceiling from 2011-16, for example, a smattering of politicians would often put on a big show of voting against occasional (and completely necessary) increases in the statutory debt limit.  Senator Barack Obama himself once did so, accompanied by an operatic denunciation of the (nonexistent) evils of the national debt.  Obama knew full well that the increase would pass, but he also knew that he (an obscure Freshman in the U.S. Senate) could get some press by promoting himself as a deficit scold.

Sometimes, people paint themselves into a corner, repeating again and again something like, say, "Read my lips.  No new taxes!"  Unlike George H.W. Bush, however, most politicians apparently believe that a foolish consistency is the path to political success.  What do we do when a politician makes a very public commitment to a foolish position and would be embarrassed to be seen as a flip-flopper?  Enter Senator Joe Manchin.

Manchin is, of course, the most conservative Democrat in Congress.  He also is enjoying his career moment, suddenly being the one man who potentially stands in the way of President Biden's agenda.  This is already the case for those bills that are not subject to the filibuster, including the already-passed COVID relief bill and the new infrastructure and public investment plan from the Biden team.

Even though Manchin leans right on a lot of issues (opposing a phased increase in the minimum wage to $15, for example), he is not merely a performative anti-Democratic Party Democrat, along the lines of Joe Lieberman late in this career or the triangulating Bill "New Democrat" Clinton.  Manchin, for example, voted to convict Donald Trump in both of his impeachment trials, which is especially notable for a senator from a deep red state like West Virginia.  Although he voted to confirm Brett Kavanaugh to the Supreme Court, he voted against Amy Coney Barrett.  He is not a Democrat in name only.

Manchin is, however, genuinely conservative.  I was not surprised to learn, for example, that he is against increasing the statutory corporate tax rate to 28 percent, as Biden has proposed.  There is no good reason to oppose Biden's proposal, but being pro-corporation and anti-tax -- and wanting to look that way -- all but guarantees that someone like Manchin will make noises and insist on an arbitrarily lower number than Biden has proposed -- which was itself a compromise, with Biden having split the difference between the old rate of 35 percent and the 21 percent rate that Republicans rammed through in December 2017.  Even though Manchin voted against the 2017 Act (further proof that he is no Republican stooge), he now wants to preserve the corporate giveaway.

And this is precisely the type of situation in which politicians can find wiggle room.  Manchin could, for example, stand firm on his demands for a lower statutory rate but then push for an end to the various provisions that make it possible for so many companies not even to pay the 21 percent rate.  The usual line about "lowering the rate and broadening the base" had been perverted in 2017 into "lowering the rate and ... Look, a squirrel!"  Any politician knows that the top-line number will get the headlines, which in any complicated legislative situation (most definitely including tax policy) leaves plenty of room to maneuver.

What about issues on which Manchin is not necessarily be out of step with his party?  Manchin might or might not honestly (though indefensibly) oppose statehood for Washington, D.C., but even if he does, he surely understands that his current pivotal role will end the second that Democrats lose their one-seat majority in a 51-50 Senate.  Although D.C.'s addition of two liberal Democrats would immediately reduce Manchin's power, they would be a good insurance policy against Manchin's possible loss of power in the Senate after the 2022 midterms.
Even if he were to favor making D.C. the 51st state, however, there is no backdoor way for Manchin to accomplish that goal.  He either is for it or against it.  By contrast, even though Manchin has surprisingly announced that he opposes elements of the For the People Act and the John Lewis Voting Rights Act, he could surely find a way to demand relatively mild changes and use those changes to justify his vote.  And he surely knows that -- beyond the whole "this is the future of democracy on the line" thing -- his own political future and relevance hinge on Democrats passing something like those two bills.

To allow a vote on D.C. statehood or to save democracy, however, would require changing or eliminating the filibuster, which Manchin has definitively and repeatedly said that he is committed to protecting.  The issue thus becomes much more complicated, because Manchin would not only need to perform his political role with regard to those proposals themselves but first to explain why he changed his mind about the filibuster.

The irony is that Minority Leader Mitch McConnell -- the person most responsible for abusing the filibuster -- is probably the person in Washington who could most help Manchin find a way around Mitch McConnell.  When it comes to finding fig leaves to justify even insanely unjustifiable positions, much less to change positions that are merely no longer convenient, McConnell has a track record of squaring the performative circle.

Consider the stratagem that McConnell himself considers his greatest hit: holding a Supreme Court seat open for a year, in the hope that a Republican president would fill the seat.  He came up with a complete lie -- that there was a "Biden rule" that prevented the Senate from voting on Supreme Court nominees during an election year -- and he stuck to his story in the face of mockery and criticism.  McConnell, of course, ultimately filled that seat by changing the filibuster rule to exempt Supreme Court nominations.  Surely, then, he could give Manchin some ideas for explaining why altering the filibuster -- or even eliminating it completely -- is somehow fully consistent with Manchin's previous position that the filibuster is an essential bulwark of bipartisanship.

Recall that McConnell is the man who is now telling -- no, "warning" -- corporations to stay out of politics, even as he has spent his entire political career making sure that corporations overwhelm the political system with dark money.  If someone with his toxic skills could be brought over to the other side, we can only imagine how many ways he could find for Manchin to claim not to be backing away from his defense of the filibuster.

Perhaps McConnell's finest hour (both strategically and substantively) was when he steered the country out of the debt ceiling crises that I mentioned above.  As cynical and as conservative as he is, McConnell knew that the debt ceiling had to be increased.  The problem was that many, many hyper-conservative Republicans had vowed never to vote to increase the debt ceiling.  For McConnell, however, that was no problem at all.

I still marvel at McConnell's ability to understand that even the most silly cover story would be enough to convince his colleagues to change their positions.  They had vowed never to vote to increase the debt ceiling, and he made it possible for them to keep that promise.  How?  Readers who have never heard this story will think that I am making it up, but I guarantee that this is truly what happened.  McConnell structured the bills such that the debt ceiling would first be suspended for some number of months or years, after which the debt ceiling would come back into existence and be reset at the level to which the debt had risen in the meantime.

Considering that McConnell had previously argued vociferously (as if he has any other mode) that not having a debt ceiling would allow the debt to rise "literally without limit," this approach was especially hypocritical, even for him.  But because he knew all along that the debt ceiling is not necessary to limit debt, he was not worried.  He figured out a way to allow his colleagues to say: "I promised that I would never vote to increase the debt ceiling, and I kept that promise."  To the objection that the bill all but guaranteed that the reinstated debt ceiling would be higher than it was prior to being suspended, the answer was, "That's not guaranteed, and I never voted to increase the debt ceiling from $x trillion to $y trillion.  Promise made.  Promise kept."

Could a McConnell-like figure suggest, say, that the filibuster be suspended and then reinstated?  Manchin could then say that he promised not to vote to eliminate the filibuster, and indeed the filibuster lives!  We have merely decided to put it on occasional hiatus, not to eliminate it.

Of course, it would actually be better if Manchin were to say simply that he has changed his mind about the filibuster.  Or, along the lines of (but by no means limited to) suggestions from people like Burt Neuborne and Erwin Chemerinsky, there are a zillion ways that the Senate could alter the filibuster.  Manchin could then say, quite reasonably: "The filibuster is a time-honored Senate tradition, but it has been changed in fundamental ways on multiple occasions in response to new challenges.  We need to do so again."

I hope that Manchin will do that, at least.  But honestly, if he is worried about being accused of breaking his promise to preserve the filibuster, the suspend-and-reinstate gambit could be his McConnell-like way to save political face.
As I noted above, Manchin might oppose on substantive grounds some bills that are currently subject to the filibuster, which means that he might in fact not want to find a way out of his very public commitment to "save" the filibuster.  But if he does want to save democracy, and if he is not willing to admit that he has changed his mind, it is not difficult to find examples of politicians sliding away from their own promises.  For the good of the country, Manchin needs his own McConnell moment.