Legal expert dismantles Manchin’s false claims about the filibuster 'tradition of the Senate'

Legal expert dismantles Manchin’s false claims about the filibuster 'tradition of the Senate'
Joe Manchin in 2008, Wikimedia Commons

A legal expert is pushing back against Sen. Joe Manchin's (D-W.Va.) recent remarks suggesting the filibuster is a centuries-old "tradition of the Senate."

According to Manchin, the filibuster is “the tradition of the Senate here in 232 years now. … We need to be very cautious what we do. … That’s what we’ve always had for 232 years. That’s what makes us different than anyplace else in the world.”

However, The Washington Post's Glenn Kessler has a detailed argument to refute Manchin's claims. He began with clear facts breaking down the meaning of the word "filibuster."

"Without saying so, the statement concedes Manchin was wrong to cite a 'tradition' of 232 years," Kessler wrote.

"The word 'filibuster' is derived from a Dutch word for pirate. In the Senate, filibuster generally refers to extended debate that delays a vote on a pending matter," Kessler wrote, later adding, "The filibuster, contrary to Manchin’s statement, is not mentioned in the U.S. Constitution, which went into effect 232 years ago."

Kessler went on to note the lay out the controversial history of the filibuster.

Pointing to the actions of Former Vice President Aaron Burr, Kessler detailed where support of the filibuster derived from. According to Burr, "the chamber’s rule book was a mess and should be cleaned up." Burr also argued that "the body should eliminate a rule that allowed a majority of the Senate to automatically cut off floor debate, called the “previous question” motion, because he thought it was unnecessary."

However, historians argue otherwise. In a piece published by the Stanford Law Review back in 1997, legal scholars Catherine Fisk and Erwin Chemerinsky, Kessler noted, "uncovered that in 1790, senators from Virginia and South Carolina relied on extended speeches in a failed effort to block a vote to temporarily move Congress to Philadelphia."

Over the years, the laws have changed but even with the establishment of cloture, Fisk and Chemerinsky noted that filibusters were commonly used to thwart civil rights-related pieces of legislation. In a 2011 piece, Cornell Law School professor Josh Chafetz also discussed the premise of cloture.

“The effect of the tracking system is that a filibuster no longer ties up the business of the Senate,” wrote Chafetz. “Once a Senator announces an intention to filibuster a measure, the issue is simply kept on the back burner unless the majority can muster the sixty votes for cloture.”

In response to queries from The Post, Manchin's spokesperson released a statement. "Prior to 1917, there was no mechanism for ending debate in the Senate, effectively allowing one member to block any action on any bill. While the threshold for invoking cloture has been modified over the years, there has never been majority cloture in the Senate.”

In conclusion, Kessler assessed Manchin's false claim with three Pinnochios.

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