What Sinema, Manchin, and Democrats Fail to Grasp about the Filibuster
Democrats possess a problem with the filibuster. That point is hardly new, but the real nature of the problem — one that affects both progressive Democrats seeking to eliminate the filibuster and moderate Democrats desiring to preserve it — often goes unsaid. And the unstated point speaks to a larger defect that Democrats suffer from, which is their failure with language and their inability to speak in the kind of vernacular and lexicon that resonate with most American citizens, a point that James Carville recently made to Vox (https://www.vox.com/22338417/james-carville-democratic-party-biden-100-days).
Earlier this month, Arizona senator Kyrsten Sinema, a moderate Democrat, stated that the filibuster “protects the democracy of our nation” (https://thehill.com/homenews/556587-sinema-defends-filibuster-sparking-progressive-fury?rl=1). Aging California senator Dianne Feinstein, also something of a moderate, has also defended this Senate tool being used by Mitch McConnell to veto majority power and the will of the American voter in the 2020 elections. Meanwhile, West Virginia senator Joe Manchin — essentially a conservative Democrat — has proved famously adamant in his support of the filibuster (https://www.washingtonpost.com/opinions/joe-manchin-filibuster-vote/2021/04/07/cdbd53c6-97da-11eb-a6d0-13d207aadb78_story.html).
These three Democrats, along with some of their moderate and traditionalist brethren in the Senate, have deservedly drawn the ire of progressive party members — inside and outside Congress — who correctly view the filibuster as a wanton impediment to both democracy and President Biden’s agenda. Yet in voicing their opposition, they make the same mistake as the moderates and traditionalists clinging to this archaic rule: failing to mention that it is not part of the United States Constitution and thus the epochal vision of the Founding Fathers.
Republicans and conservatives have long wrapped themselves in the Constitution, even while their embrace of America’s governing document has proved selective and dubious at best. Even Donald Trump and his minions will embrace constitutional rhetoric while simultaneously betraying that document and promoting anti-American autocracy instead. They seem to understand that most Americans view the Constitution as a sacred text and that clinging to it rhetorically — even while ignoring or subverting the document in reality — works for them politically.
Contemporary Democrats and liberals, conversely, struggle to offer a similar constitutional embrace, even when the Constitution is on their side. Perhaps the reason lies in how many of the Founding Fathers were slaveholders and the Constitution includes the unfortunate “three-fifths” compromise, which counted slaves as three-fifths of a person in order to boost the heft of slaveholding southern states in the House of Representatives and the electoral college. Indeed, modern progressives sometimes seem loathe to embrace anything that smacks of America’s racist and sexist past.
They should remember, however, that the Founding Fathers wisely allowed for amendments to the Constitution, a process that eventually abolished slavery (the Thirteenth Amendment), enshrined birthright citizenship irrespective of race and created “the equal protection of the laws” (the Fourteenth Amendment), granted black men the right to vote (the Fifteenth Amendment), and enfranchised women as well (the Nineteenth Amendment). The Constitution also fostered the federal income tax (the Sixteenth Amendment) in 1913, finally giving the federal government a lever to address gross income inequality. Moreover, the Founding Fathers’ original vision famously created three co-equal branches of government, specifically to prevent a demagogue like Donald Trump from perverting our democracy into an autocracy.
For all these reasons, Democrats and liberals should embrace rhetoric pertaining to “the Constitution” and “constitutionality,” much as Republicans and conservatives have done for decades. Not only do the Constitution’s governmental structure and amendments process mesh with liberalism, but the document offers easy entry into the psyche of American voters. Mention that something is “constitutional” or “unconstitutional,” and you will be on safe ground, able to efficiently deflect criticism and win converts.
So it is with the filibuster. If Sinema, Feinstein, or Manchin claim that it is a tool of “democracy,” progressive Democrats can easily point out that the filibuster is not part of the Constitution and not part of the Founding Fathers’ vision for the Senate. The framers structured a government where a majority vote would rule in the Senate and the potential “check-and-balance” within the legislative branch would simply be one congressional chamber vis-à-vis the other. Beyond that, of course, there are the checks-and-balances of the presidency and the Supreme Court. Never, however, did the Founding Fathers want the Senate minority to enjoy its own veto. If that was what they had sought, they would have written the filibuster into the Constitution. They did not, and the Senate did not embrace the practice until some fifty years after the writing of the Constitution in 1787 (https://www.brookings.edu/testimonies/the-history-of-the-filibuster/).
Indeed, if the framers had actually believed that legislation should require sixty percent of senatorial votes in order to pass through the Senate, they would have detailed that point in the Constitution. Instead, they believed that legislation should simply pass with a majority — and with the vice president casting tiebreaking votes. That was what they wrote. (Article 1, Section 3: “The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.”) Needless to say, designating the vice president as a tiebreaker would have been moot had the Constitution’s authors desired senatorial legislation to only pass with at least sixty percent of the votes.
If progressive Democrats would simply state, therefore, that the filibuster is “unconstitutional” and not what the framers wanted, they could easily thwart the claims and arguments offered by Sinema, Feinstein, and Manchin, to say nothing of Mitch McConnell. And if Sinema and Manchin are worried that eliminating the filibuster would harm their respective chances of reelection in Arizona (a swing state) and West Virginia (a heartily pro-Trump state), they could simply note that the filibuster is not in the Constitution, is therefore “unconstitutional” or “anti-constitutional,” not part of the Founding Fathers’ conception, and thus worthy of abolishment. Most voters know or care nothing about the filibuster and the Senate’s arcane legislative procedures, and the few swing voters who do — or who could be influenced by a Republican/Fox News talking point along these lines — could easily be converted by correctly invoking the Constitution.
Again, the US Constitution is a holy text for most Americans, and if the Constitution is on your side, you reside in safe waters, politically. Democrats — whether liberal or moderate — need to understand the nature of American vernacular and the American lexicon. Once they do so, they will at least start running downhill in terms of the issue’s political discourse, influencing the media’s framework and placing much greater pressure on their recalcitrant members, the likes of Manchin and Sinema. After all, who will seem like more of an authority on constitutional democracy, Kyrsten Sinema or James Madison, Alexander Hamilton, Benjamin Franklin, and the other legendary visionaries who inked the Constitution?
