Outside the Beltway

The Power of Mythology

It does not create better deliberation.

Steven L. Taylor · Saturday, October 9, 2021 · 17 comments

So here’s Joe Manchin, yet again, defending the filibuster:

He went on to say “it keeps us the body that we are” (which is true, but is a slam, not the compliment he intends it to be) and then argued that the outcome (a temporary extension of the debt ceiling) proves that the current rules lead to deliberation and without them, there would be “total chaos.” He even described the outcome of the current debate as a “return to civility.”

This is all a combination of a belief in the mythology of the filibuster and, quite frankly, a host of classification errors.

Let me go in reverse order and note that classifying an outcome in which the minority (both in terms of seats and very much in terms of the number of citizens they represent) can have this much influence on outcomes as “keep[ing] democracy alive and well” requires a distorted definition of democracy. Indeed, to paraphrase what I said elsewhere: a system that induces a game of chicken over the health of the US economy (and, really, the global economy) and then only produces a short term solution is hardly a hallmark of decision-making and is not the way to “keep American democracy alive and well.”

Beyond that, how would democracy be damaged if the majority party was able to come to a solution that the voters could then judge them on? How would that be anti-democratic? How would democracy be harmed if majorities were allowed to govern? (As is the case in basically all the other democracies around the world).

How about categorizing a game of chicken as “deliberation?” While I understand that sometimes the severity of an outcome is needed to motivate a solution, when I think about deliberating over a problem, I don’t think of barrelling straight at another automobile in the hopes that the other guy swerves first. Yes, such contests produce outcomes, but they are hardly the stuff of careful deliberation.

To pick (and mix) another common metaphor, I don’t think that kicking the can down the road so that we can play chicken again in December certifies the US Senate as the vaunted great deliberative body Manchin sees it as.

Not driving off a cliff is usually not considered a feat of intellectual prowess (especially if you promise to drive really, really close to the edge again in early December just to see if you can avoid falling off one more time).

Look, to get back to the mythology point, I fully understand the Manchin is moderate ideologically and that there are interests in his states that influence his behavior. I also think, whether consciously or unconsciously, he likes the power and attention being the pivotal vote is giving him (but that would be true without the filibuster, I should note). But I honestly think that the fundamental problem with Joe Manchin is that he believes in the mythology of the Senate. See, for example, this discussion about Manchin and his reverence for Robert Byrd, a mythologizer of the Senate, from The Daily in June.

I think he actually thinks that the filibuster leads to deliberation and compromise and actually makes the Senate special. The problem is the evidence he is using (like in the clip above) is simply the Senate passing something. Somehow the quality of the outcome is escaping his calculus. He appear to value the patina of bipartisan compromise over a clear-eyed assessment of the outcome. By any objective standard, wasting as much time as was wasted over this matter only to come to a couple of months’ worth of pause is hardly a success. Further, a dispassionate look suggests that all this process does is enhance the leverage of the minority party so that they can use blackmail to achieve preferred outcomes. Where is the actual deliberation and compromise? All I see is a replay of not solving a real problem.

The reality is, as I noted in my review of Adam Jentelson’s book Kill Switch, the filibuster is neither the heroic act portrayed by Jimmy Stewart in Mr. Smith Goes to Washington, nor is it some special ingredient that makes the Senate the Senate. It is pure and simply a tool that developed first to allow southern states to promote slavery and fight civil rights legislation and has evolved into an all-purpose tool to allow minorities to thwart majorities. It does not produce fancy deliberative compromise for the good of the country. Mostly it just blocks things the minority doesn’t like.

From that review:

According to Jentleson, “From the end of Reconstruction in 1877 until 1964, the only bills that were stopped by filibusters were civil rights bills” (108). Indeed, despite a lot of mythologizing (that continues to the present day) about deliberation and the rights of Senators to be heard, the filibuster has its origins as a tool for squelching the rights of the Black minority in the United States. This is not hyperbole and paves the way for some serious reevaluation of the procedure from 1964 back.

The current story of the filibuster is a more recent one linked to simple obstruction by the minority party, more often by the Republicans than by the Democrats. This stands to reason from a partisan POV, as “The modern Senate creates a structural advantage for conservatives because its rules have evolved to make it incredibly easy to stop legislation” (124).

[…]

This situation is, it should be noted, a paradise for any party who doesn’t want change and is content with the status quo, especially if that party represents a minority of the overall population. Along those lines, “In the twenty-first century, Senate Republicans have represented a minority in the population every year, despite holding as many as fifty-five seats, as they did from 2005 to 2006. at their low point this century, in 2009, Senate Republicans represented just 35 percent of the population” (126).

Look, the logic sounds good: make decisions require more participants and you will get compromise outcomes. But the fatal flaw in that logic is that it assumes everyone involved in said decision-making wants to make a decision. But this is manifestly not the case in legislative bodies. There is a reason that parties exist: because we don’t all agree on political outcomes. As such, Majority Party A wants to do X, and Minority Party B doesn’t, so why in the world would more deliberation make B agree to do X? As such, super-majority rules give the minority a veto over what the majority wants.

To take a non-US Senate set of examples: there was a period of time wherein in California the state legislature needed a 2/3rd super-majority to pass the budget and to raise taxes. So, compromise all around, right? Well, it meant to get the budget passed you had to lard the thing up to get support from both parties. It also meant that to raise taxes to pay for stuff, success was unlikely. Consider: if the CA GOP was opposed to taxes, what was their incentive to go along with those taxes? Now, spending they could get on board with. The point being: super-majority requires only work (at least if “work” means”leads to legislation”) if all parties involved want an outcome (but it still empowers the minority well beyond their electoral significance). But super-majority requirements give minorities vetoes for things they don’t want, even if the majority is unified in wanting them.

Super-majority requirements, therefore, are great for parties that don’t want to do things. If your party is effectively anti-governance, then super-majority rules are awesome. This is made all the truer in a system of separated powers. Why? Because to be specific, Senate Republicans can only get the legislative outcomes they really want when their party controls the White House, the House, and the Senate. In those cases, they can get, say, tax cuts (especially since they can use reconciliation for that). But as soon as they lose any of those institutions, the filibuster allows them to book a whole heck of a whole lot, which is their legislative goal: inaction. When one party wants inaction, then super-majority requirements are not going to produce deliberation and compromise, then are going to produce inaction.

To reiterate: Republicans currently can get what they want by 1) controlling the legislature and the executive, 2) controlling one veto point in divided government, or 3) by controlling none of the key institutions, but using the filibuster to make the Senate a veto point even though they are in the minority.

(And yes, option #1 gives the Reps the most, but options 2 and 3 still give them the lion’s share of what they want, and this is not to be underestimated).

Democrats can only really get want they want by controlling all three key institutions and having 60 votes in the Senate (something that barely ever happens, and the deck is stacked against them due to the way Senate seats are allocated). Yes, Democrats can get some of what they want via controlling all three key institutions and using reconciliation, but that route is limited.

This is why I do not think that the Republcians will ever get rid of the legislative filibuster when they regain the majority because people like Mitch McConnell know that it gives the GOP a pathway to substantial success under all but a 60-vote Democratic super-majority.

This is also why I would argue (indeed, have been arguing) that the Democrats should abolish the filibuster and allow themselves to govern in those times when they can, which are also rare when they can control all three institutions.

I think, in fact, McConnell blinked on the current compromise deal because he knew that the only other viable option for the Democrats going alone on the debt ceiling was to carve out an exception to the filibuster. He cannot afford that. He understands its value to his party.

(And, BTW, setting aside my normative preference for better representativeness, and my disdain for the debt ceiling, the reality is that it makes utterly rational sense for McConnel to be behaving as he is and for Republicans to want to maintain the filibuster)).

Consider: there was no time for the reconciliation process and so the Democrats were faced with only three options: get Republican votes (which they had been withholding), let the country default, or find a way around the filibuster. If Manchin and Sinema were convinced that in the game of chicken that McConnell really was willing to crash his car and send the country into economic chaos, I think they would have voted to suspend the filibuster for this issue. What choice would they really have had? (Indeed, If Mitch really was willing to have a head-on collision, I expect some Republicans, like Mitt Romney, would have wanted out of the car).

So, the Greatest Deliberative Body in the World^TM came to the rousing solution of stopping the game of chicken for now, so as to resume it in December, as one might expect Great Statesmen to do.

So, for anyone who is missing my tone: this is foolish and stupid. It is not grand deliberation nor is it the boosting of the health of our democracy.

It is a situation in which a rule that makes no sense (the debt ceiling) couples with a supermajority requirement in the Senate to allow the party with fewer seats in the chamber to threaten to create a global economic crisis so that it can get its ways/create fodder for the next election.

(BTW, if Manchin really wants a system that requires real deliberation and compromise, he should work towards creating a multi-party parliamentary system in the US, but that’s its own discussion).