The Senate Filibuster And The Death of American Democracy By Appeasement

Americans like to believe that we live in a democracy, but in fact the Constitution created anti-democratic constraints on what the wealthy elites of the time feared was the unruly mob. (They were not entirely wrong; there was a series of rebellions and insurrections in the early Republic).

But now that we are the world’s oldest “democracy” – the United State will celebrate its 245th Independence Day in a few weeks – we should have matured as a democracy by now so that we no longer need these anti-democratic constraints.

Among the world’s democratic governments, only in the United States is the candidate who wins the popular vote for the presidency not necessarily the winner of the election. The Electoral College, the last vestige of the slavery provisions in the Constitution, is the most anti-democratic provision of all. It empowers sparsely populated states to band together to thwart the will of a majority of Americans living in populous states.

In a true democracy by popular vote election, there never would have been a president George W. Bush or a president Donald J. Trump. The country could have been spared so much trauma and grief, and the division caused by a popular vote loser serving as president, lacking legitimacy.

The U.S. Senate is also an anti-democratic institution, giving every state the same number of senators regardless of population. Again, it empowers sparsely populated states to band together to thwart the will of a majority of Americans living in populous states. Today, sparsely populated states tend to be whiter and more conservative than larger states. The lack of apportionment in the Senate gives Republicans an enormous advantage in the fight for control of the Senate. In the current 50-50 Senate, the Democratic half of the Senate represents 41,549,808 more people than the Republican half.

In a true democracy, with apportionment of seats in the Senate, Democrats would likely enjoy a substantial majority in the Senate.

Republicans have filed election lawsuits over the years on the theory of “vote dilution.” The Senate is the clearest example of vote dilution. The vote of a resident of a sparsely populated state like Wyoming carries much greater weight than the vote of a resident of California, the most populous state. This makes a mockery of the “one person, one vote” standard adopted in Reynolds v. Sims (1964).

Then there is the Senate filibuster rule. It is not part of the Constitution, nor did the Founding Fathers want a supermajority vote to pass legislation in regular order. That is why they expressly set forth the rare exceptions when a supermajority vote would be required in the Constitution.

And yet the Senate adopted a filibuster rule.

The current version of the Senate filibuster rule dates back to the Jim Crow segregation era after the Civil War, and was last revised from a two-thirds vote to 60 votes in 1975. Even then, it was rarely used, almost exclusively used by Southern white segregationists to block civil rights and voting rights legislation.

It has only been in the Mitch McConnell era of the Senate that the Senate filibuster rule has been weaponized, and abused to require a supermajority vote to conduct any business at all. No one in the history of the Senate has abused the filibuster rule more than Mitch McConnell.

McConnell is one of the true villains of the Senate in American history, on a par with John C. Calhoun, who expounded on theories of interposition, nullification and secession, which served as the intellectual justification for Southern states to secede from the Union and engage in a Cviil War.

Just how undemocratic is the Senate? As Philip Bump bluntly put it, Senate Republicans kill the Jan. 6 commission by a negative-19 vote margin:

It’s clear that a bipartisan majority of the House supports creating a bipartisan commission to investigate the attack on the U.S. Capitol that occurred on January 6. It passed a bill to do so earlier this month.

It’s clear that a bipartisan majority of the Senate supports the commission’s creation, too. On Friday, more than 50 senators — representing 32 states and well over half the country’s population — voted to move forward on doing so.

It’s clear that a majority of the public also supports such a commission. Polling has repeatedly demonstrated that, including a YouGov-Economist survey released this week.

But there will be no such commission. That vote in the Senate aimed at ending a Republican filibuster of the proposal to create a commission needed 60 votes. Instead, it only got 54 — 19 more votes than the opposition, but that doesn’t matter under the Senate’s filibuster rules. That there were three votes for ending the filibuster for every vote to maintain it doesn’t matter.

[B]ut there’s nothing set in stone about these rules. It’s not like they’re in the Constitution. Instead, the Senate made them up and can change them as they see fit. So if, for example, the standard set in 1975 had been 60 percent of those present, the cloture vote would have passed and consideration of a commission could have moved forward to a final vote.

But, of course, that’s not the standard.

Philip Bump continues:

We will hear a lot over the next few days about how the filibuster preserves the rights of less populous states. This is the long-standing argument on both the filibuster and the electoral college: Each allows for states with fewer residents to have skin in the game.

The vote on the Jan. 6 commission makes clear what that means in practice. There’s nothing small-state-specific to opposition to such a commission except that those states are often heavily Republican, and Republicans, worried about the obvious connection between Trump and the riot, aren’t excited about spending a lot of time adjudicating the issue. It’s a great example of how the claim that “small states need to have a voice” is often just a proxy for “we prefer that the national Republican Party enjoy the weighting advantage that accompanies being popular in those small states.”

That’s how the rules work, given how they were rewritten in 1975. And it seems clear that those rules aren’t likely to change soon.

The world’s democracies look at America and shake their heads in in disbelief. “This is insanity.” A democracy cannot long survive when it enables a radical anti-democratic, anti-majoritarian domestic terrorist organization that tried to overthrow the government to now prevent an investigation into its heinous crime of sedition and insurrection against the government in a failed coup d’etat.

Anywhere else in the world, the coup leaders would be facing one of three punishments for their crime: life in prison, execution, or exile. In America, no one has yet been held accountable for what is an ongoing and continuing insurrection. This filibuster vote was a vote for a coverup of the crime. This is the only correct way to view it.

Senator Joe Manchin, who had convinced himself that there were “ten patriotic” Republican senators who would vote for the January 6 Commission, was nonplused after the vote.

Excerpt:

This commission passed the House with a bipartisan vote. The failed vote in the Senate had six brave Republicans, but that was four short of the ten necessary to advance the legislation. Choosing to put politics and political elections above the health of our Democracy is unconscionable. And the betrayal of the oath we each take is something they will have to live with.

To the brave Capitol police officers who risk their lives every single day to keep us safe, the Capitol and Congressional staff that work around the clock to keep Congress running, even the reporters who work hard to deliver Congressional news to the American people and every American who watched in horror as our Capitol was attacked on January 6th – you deserve better, and I am sorry that my Republican colleagues and friends let political fear prevent them from doing what they know in their hearts to be right.

Nevertheless, having been proven horribly wrong, Joe Manchin persists – he has not announced that he will reconsider his indefensible position in favor of the Senate filibuster. He is oblivious to his own complicity.  He also took an oath of office to defend this nation against all enemies, both foreign and domestic. So why won’t he honor his oath and “do what he knows in his heart to be right”? Sanctimonious hypocrite.

The man should be held up to ridicule and mockery, or in this case, political satire from the Washington Post’s Alexanda Petri. Joe Manchin and the Ten Good Republicans:

Joe Manchin was absolutely sure that there were Ten Republicans who could be found to vote in support of important legislation and that, consequently, there was no urgent need for filibuster reform.

“It’s time to come together,” he said, confidently. “I think there’s 10 good people.”

“Ten Republicans!” Joe’s friends said, when he told them. “Wow, Joe! That’s a large number! Are you sure that you saw them? Where did you see them?

“I will tell you,” Joe said. “I was out hiking in the woods and I saw them there. They seemed very friendly and very real, and much taller than I would have imagined. I shouted to them in greeting. I said, ‘Stay there, Ten Republicans, and I will bring you a bipartisan piece of legislation!’ I began running toward them, waving my arms in greeting. But on the way toward them, I stepped on something that made a loud cracking sound, and it must have startled them, because when I got to them with the bipartisan legislation, they were nowhere to be found.”

“Oh,” Joe’s friends said.

“But I have some pictures I managed to take of them,” Joe said. He held up a photograph of some large trees and something blurry in the midst of them that might have been a thumb.

Just like Bigfoot in North Carolina!

“But then I saw more evidence!” Joe said. “I found a little ring of 10 toadstools in the middle of the woods, arranged just so. Everyone who studies these matters knows that is the sign that the Ten Republicans have been there. So I left some bipartisan legislation for them, as an offering, but when I came back several days later, nobody had signed onto it and it had been torn in half for some reason. I am sure it was a misunderstanding.”

“Hmm,” Joe’s friends said. “What else gives you confidence in them?”

“I will tell you,” Joe said. “I was riding on a plane and I happened to look out the window and —”

“You saw Ten Republicans clinging to the wing of the plane?” Joe’s friends asked.

“No!” Joe said. “Do not be ridiculous! They cannot survive at that altitude. I saw a craft of a mysterious sort, moving by a propulsion I could not identify. It was kind of a saucer, kind of a cigar. It seemed to be covered all over in flashing lights like eyes. I shouted out the window, ‘The Ten Republicans! I know that it is you! What an advanced vehicle you have made! We in West Virginia would be pleased as punch to help you manufacture one! Flash your lights to signify that you understand me, and that you would like to work on some bipartisan legislation together that will keep the Senate functional!’”

“Unidentified aerial phenomena,” fka “unidentified flying object.”

“And then?” Joe’s friends asked.

“Then,” Joe said, “well, I think a bird may have hit their craft, or something, because — nothing happened, and all the lights went abruptly dead.”

“Oh,” Joe’s friends said.

“But I have a picture of them!” Joe said, holding up another photograph of an airplane window and something blurry in the middle that looked like a thumb.

“Is that all?” Joe’s friends asked. “We have a lot of important legislation that really needs to get through, like the Jan. 6 commission, and I wish there were just a little more proof that the Ten Republicans, for lack of a better word, existed.”

“Here I am walking on the beach with them,” Joe said. “You can tell they were there because there is only one set of footprints.” Joe reached into his pocket. “Here is a best friends necklace that I got them. They let me keep both halves of it, which shows extra consideration! Here is our text history — you can see that they’ve received every single message!”

“Well, as long as they show up and vote for the Jan. 6 commission, as you hope they will do, I will gladly believe in them.”

“They absolutely will,” Joe said. “They will not fail entirely to materialize and allow the commission to fail on a 54-to-35 vote, for which 11 senators weren’t present at all!” He sighed. “Or if they do, I’m sure they have their reasons.” He reached into his pocket again. “Here is a picture of the filibuster working as it was designed to and making government more functional at any point over the past two decades!”

His friends looked very closely at it, but, once again, it appeared to be a thumb.

This damn fool hillbilly may be responsible for the death of the Republic by appeasing a radical anti-democratic, anti-majoritarian domestic terrorist organization engaged in an ongoing and continuing insurrection. (And don’t think I have forgotten about you, Senator Sinema. You are much brighter than this damn fool hillbilly, so you have no good excuse for your indefensible position in favor of the filibuster).

Elie Mystal, the Justice correspondent at The Nation, offered one possible explanation for the appeasement by these Democratic senators on MSNBC’s All In With Chris Hayes.

My Manchin impression sounded better in my head. https://t.co/pzGaIUQxZ5

— Elie Mystal (@ElieNYC) May 29, 2021

Rough transcript (h/t Crooks And Liars):

MYSTAL: Most of us know what to do. We have to end the filibuster. That’s it. Nothing can go forward until that happens.

And there are two Democrats who won’t let us do that.

And so until those two Democrats get out of the way, what can I do?

Like, I mean, there’s an aspect here, right? Where whatever you’re doing right now is what you would be doing in the antebellum south, or during the Jim Crow era, or in apartheid South Africa. You, right now, are doing what you would have done in apartheid South Africa. So, what are our leaders doing?

What is Joe Manchin doing? What is Joe Manchin thinking about telling his grandkids about how he rose to this moment? And, when you get your head into that, you see why there’s so much enervation.

Because right now, all Joe Manchin is going to have to say to his grandkids is, “Son, I gave the Republicans a veto on anything that could stop them. Because sometimes you have to show the fascists your belly in order to stay alive.”

Like, that’s his tombstone.

* * *

But that’s all he’s got. And that’s why Democrats at a base level are so – it’s not a lack of passion, it’s an enervation from ramming your head into the same wall over and over again.