The secret to getting around the filibuster

The secret to getting around the filibuster

Sen. Joe Manchin speaks to Navy Vice Adm. Michael M. Gilday, director of the Joint Staff, before his confirmation hearing for the position of Chief Naval Operations at the U.S. Senate Dirksen Building in Washington, D.C., July 31, 2019.

DOD photo by U.S. Navy Petty Officer 1st Class Dominique A. Pineiro

The biggest story in politics right now is about the filibuster. That's the rule in the United States Senate requiring legislation to garner at least 60 votes to pass. Because of this, the big news this morning comes from Joe Manchin, who is, for all intents and purposes, the senator who will determine the filibuster's fate. Here's what he said:

There is no excuse for any Republican to vote against this commission since Democrats have agreed to everything they asked for. Mitch McConnell has made this his political position, thinking it will help his 2022 elections. They do not believe the truth will set you free, so they continue to live in fear (my italics).

The commission, as you know, is the bipartisan commission (half Republicans, half Democrats) proposed to investigate the January 6 insurrection against the United States government that was planned, organized and incited by the former president with the goal of disrupting the transfer of power. Some of the insurgents had political assassination in mind. This is one of those things that should not be uncontroversial.

That's how Manchin is playing it. He's a Democrat from West Virginia. It voted overwhelmingly for Donald Trump. He knows the filibuster gives the minority a veto on the president's agenda. He knows it can't endure in its current form. Whatever he does, however, has to be seen as nowhere near being partisan. That's why he's leaning into God and country. On hearing news of the Republicans preparing to block the bill, he told reporters: "So disheartening. It makes you really concerned about our country … I'm still praying we've still got 10 good solid patriots within that conference."

The hoped-for "10 good solid patriots" do not exist in the current conference. There might be seven. Those would be the Republicans who voted to convict the former president on crimes against his country. One of them was Richard Burr. Burr now says there's almost no change to the legislation that would make him support it. That leaves Mitt Romney and Lisa Murkowski, and probably Susan Collins and Bill Cassidy. (Ben Sasse and Pat Toomey, who also voted to convict Trump, now appear to be wild cards.) GOP senators keep saying the proposed commission is biased, but that's a lie. It also flies in the face of the House Republicans who already voted in support of the bill.

So we have Manchin leaning into patriotism while all but four Republicans are leaning away from patriotism, filibustering the legislation, probably today. At the same time, Manchin said, "There is no excuse for any Republican to vote against this commission." Hell, he's got on his side the mom of a dead Capitol cop, who said: "I suggest that all congressmen and senators who are against this bill visit my son's grave" (my italics). This is one of those rare moments after which we might see some clarity. If there's a time to act on the filibuster—in the name of God and country—now might be that time.

But the Democrats do not need to kill the filibuster in order to get around it, underneath it, over it and otherwise neutralize it. Manchin almost certainly has this fact in mind when he tells reporters, who keep asking if he's ready to support killing the filibuster, that he's never going to support killing the filibuster. You have to remember that he's a senator. The Senate has rules. It has rules on top of rules. It has cake layers of rules. Manchin knows, and certainly Chuck Schumer knows, there are ways to enfeeble the filibuster while maintaining the appearance of having defended it. Indeed, if Manchin is ever going to come out for reform, that's how it's got to be.

Just in time are Jonathan Gould, Kenneth Shepsle and Matthew Stephenson. In the Post, these professors of law and government said Wednesday that the Senate majority, which would be the Democrats, should add a rule requiring the end of debate to be determined by senators representing a majority of the American people. The filibuster would remain in place but this new rule would "allow a bare majority of senators to overcome a filibuster—if those senators together represented a majority." They call this democratizing the filibuster, just what you'd want to hear if you're a Democratic senator from a red state doing everything you can to avoid looking like a partisan.

How to reform the filibuster is one thing. When is probably more important. Timing, as Joe Biden said, in a very different context, is everything. During his first presser in March, the president said: "As you've all observed, the successful presidents better than me have been successful in large part because they know how to time what they're doing. Order it. Decide priorities. What needs to be done." The same can be said for the filibuster. Senate Majority Leader Chuck Schumer all but says as much when he insists "failure is not an option" and "everything is on the table." The fate of the filibuster is not a matter of if. It's a matter of when, of timing. Will today's filibuster of the January 6 commission be that time? Stay tuned, my friend.

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