Hanging in the Balance
Last week there were several articles reporting that Senators Krysten Sinema and Joe Manchin are continuing to voice their opposition to modifying the Senate’s filibuster rule to facilitate the passage of the “For the People Act” discussed in my previous article. In addition, they are now also voicing their concern over the use of the budget reconciliation process to pass the Biden administration’s infrastructure proposal. Their position seems illogical as they are not expressing any concern over the contents of those legislative proposals. Moreover, while they are perhaps justified not giving full credence to Mitch McConnell’s proclamation that the “For the People Act” will receive not a single Republican vote in the Senate, they have absolutely no reason to believe that a cloture motion relating to the bill will even receive a handful of Republican votes, much less the ten votes needed to overcome a Republican filibuster.
These senators seem to be saying that they don’t want to pass legislation with a wholly-partisan vote. That could be important in the case of laws imposing legal restrictions on the nation’s citizens that might not engender a high level of public compliance if passed solely along partisan lines. That’s because bipartisan support in the legislature is generally (but not always) a good measure of whether a statute will enjoy widespread public support. Bipartisan support, however, seems of little (or at least lesser) importance with respect to laws that do not require compliance by the public or with respect to laws that that already enjoy a high level of public support. Both the “For the People Act” and President’ Biden’s infrastructure proposal seem to fall into the categories of legislation that should not require bipartisan legislative support.
Still, Senators Simena and Manchin are not wrong in lamenting the fact that the Congress has become highly partisan; and there is a real danger that circumventing the filibuster rule will heighten the highly partisan atmosphere that already pervades the Senate. As things now stand, an unmitigated crisis has become a requisite for passing any legislations in the Senate that must satisfy the 60-vote requirement imposed by the filibuster rule. Indeed, the passage of new budget bills have become so difficult that in the last Congress the government was only able to keep going as a result of its passing “continuing resolutions” (i.e., budget bills that made no changes in spending allocations). Correspondingly, over the past year there were only two pieces of important legislation that passed in the Senate with a bipartisan vote. One was the CARES Act which was enacted last spring enabling the nation to continue to function as the COVID pandemic laid waste to much of its economy. The other was the supplemental COVID relief bill enacted last December which enabled the nation to continue to function during the third surge of the pandemic. The problem is that it shouldn’t require a full-fledged crisis to get significant legislation enacted.
While bipartisanship is a worthy goal, there is an inherent inconsistency in the positions being taken by Senators Manchin and Sinema. They wish to preserve the filibuster rule in order to assure that the views of the minority members of the Senate will not be ignored. That position, however, will permit Republican controlled states to adopt statutes that will prevent minority voters from having any meaningful say in the election of their legislators and government officials. While life is full of trade-offs, the essence of a democracy is that every citizen is guaranteed an unrestricted voice in the selection of those who will manage the affairs of the nation. The adoption of a law which assures that states cannot thwart free and fair elections as called for in our Constitution should easily take precedence over a procedural rule not protected in the Constitution. This is particularly true in the case of a rule that not only does not achieve its intended purpose, but also tends to contribute to legislative gridlock.
Despite their apparent idealism in longing for the return to a time when congressional representatives and senators regularly worked with members of the opposing party to address the nation’s problems, Sinema and Manchin cannot have any illusions as to the source of the high level of partisanship that is now undermining congressional action. For the past three decades the Republican party has led the march toward governmental paralysis. The Republican Party is dedicated to “low taxes and small government.” It, therefore, has a bias against enacting legislation giving the federal government the power to tax and regulate people and businesses. The Democratic Party, on the other hand, sees government as a vehicle for improving the lives of the nation’s citizens and this provides Democrats with a built-in bias in favor of governmental action.
These differing views of the role of government are evidenced in the specific actions of the two parties in carrying out the legislative function. For example, it was the Republican Party that opposed President Clinton’s tax increase as a means of curbing fiscal deficits even though such deficits were routinely condemned by Republican politicians. During the administration of George W. Bush, both House and Senate Republicans opposed their party’s party’s TARP legislation to rescue the nation’s financial sector as the nation’s economy plummeted into the Great Recession of 2008-9. During the Obama administration, it was the Republican Party that provided not a single vote for the Affordable Care Act that enabled 27 million Americans to obtain health insurance or for the bailout of the nation’s automobile industry which prevented the destruction of millions of American jobs. It was also the Senate Republicans who invoked the filibuster over 160 times during the Obama administration and refused to even consider the Supreme Court nomination of Merrick Garland in the final year of the Obama administration—though they had no hesitancy in confirming the Supreme Court nomination of Amy Coney Barrett only days before the last election in which Donald Trump lost the Presidency by over 7 million votes.
To be sure, Republicans will contest the allegation that they are the source of the current legislative paralysis with a few choruses of “Whataboutism.” They will assert that it was the Democrats who stood solidly against the Reagan, Bush and Trump tax cuts (all of which were based on the false premise that they would be revenue neutral). They will also point out that it was the Democrats who brought two impeachment proceedings against Donald Trump (the first of which was based upon his naked abuse of presidential authority in violation of a Congressional mandate and the second of which was based upon his incitement of a riot to prevent the Congress from performing its Constitutionally mandated function in the transition of government). These are false equivalents designed to appeal to their own political base which should have little influence on the thinking of Senators Manchin and Sinema.
This raises the question as to what is the best way to move the Congress back to acting in a bipartisan fashion: (a) rewarding the Republicans for their obstructionism by allowing them to continue to block measures which both Manchin and Sinema have stated they believe would be beneficial to the nation or (b) moving forward with actions which polling shows a significant majority of the nation’s voters (including Republicans) favor? While this is a serious question, the answer is not even a close one. This situation is a little reminiscent of Senator Collin’s assertion following President Trump’s first impeachment proceeding that Trump would feel chastened as a result of his having been subjected to the threat of being removed from office. The reality was that following his acquittal he felt fully empowered to continue to abuse the powers of his office. In short, there is no reason to believe that Congressional Republicans who were outspoken in their defense of President Trump in his second impeachment proceeding would act any differently from him if allowed to continue to benefit from their own bad behavior. The sad fact is that Republican opposition to the Democratic agenda is not based on any belief that it will adversely affect the nation, but rather is largely motivated by a desire to deny Democrats an opportunity to demonstrate that their actions improve the lives of average Americans.
Another frequently voiced rationale for preserving the filibuster rule is that the protection it offers for the minority party will be available for the party wishing its abolition when it no longer holds a majority position. There is no denying the validity of this argument as the Republicans in the last Congress took full advantage of the fact that the Democrats had relaxed the filibuster rule during the Obama administration to facilitate the appointment of lower court judges. In fact, over the four years of the Trump administration, the Republican majority in the Senate confirmed the nominations of over 200 federal District and Circuit Court judges, over a dozen of whom were deemed unqualified by the American Bar Association. In politics “turn-about” is clearly deemed “fair play” and the Democrats had every reason to expect that Republicans would take advantage of the relaxation of the filibuster rule that they had engineered.
This brings us to a corollary reason for not altering the filibuster rule voiced by Senator Manchin; namely, that one erosion of a governing principle invites another. This, in fact, happened when the Republicans extended the judicial confirmation exclusion to the filibuster rule adopted by the Democrats to also apply to Supreme Court nominees. Ultimately, this could lead to all rules designed to facilitate order in the legislative process being abandoned. Admittedly, this is a serious consideration that should not be lightly dismissed. There are, however, two countervailing considerations. The first is that the U.S. Congress operating under its current rules is essentially already dysfunctional. In the last Congress the Democratic-controlled House of Representatives passed over 200 bills that were never even bought up for consideration in the Republican-controlled Senate. In a very real sense, lack of action can be worse than even ill-advised action. The result of this burgeoning deadlock has been that no meaningful additions have been made to the nation’s infrastructure in the last 30 years which has severely hampered the nation’s current rate of economic growth.
The second countervailing consideration is that the Republicans have already proven that they don’t need an excuse to take actions heretofore deemed inappropriate. This was amply demonstrated in their refusal to consider President Obama’s nomination of Merrick Garland to serve on the Supreme Court on the rationale that a president shouldn’t be allowed to nominate a Supreme Court justice in the final year of his term. That rationale proved to be a total mockery when Senate Republicans confirmed President Trump’s nomination of Amy Coney Barret to the Supreme Court only a few days before he was voted out of office. When asked why they violated their own principle, their answer was simply, “Because we held the power to do so.” Thus, the current standard for taking action in the Senate has already been reduced to simply whether the party taking the action has the power to do so.
It must be remembered, however, that we are dealing with politicians and politicians are not always candid about what is motivating them. That means that it is entirely possible that maintaining congressional collegiality may not be the principal reason for Senators Manchin’s and Sinema’s reluctance to circumvent the filibuster rule. It’s usually a safe bet that the principal motivation underlying the actions of politicians is the likely impact of their actions on their chances of being re-elected. In this case, Senator Manchin has already telegraphed at least two pieces of evidence that indicate his current actions might be so motivated.
The first indication is that he has stated that he will not support the use of the budget reconciliation process to enact President Biden’s infrastructure proposal. The budget reconciliation process has been in existence for more than 40 years and has clearly defined rules which can accommodate essentially everything in the President’s infrastructure proposal. Therefore, employing it to enact a rebuilding program that enjoys widespread popular support is hardly an erosion of the rules designed to assure bipartisanship in the Senate. Indeed, it is equally consistent with the passage of the recently enacted COVID Rescue legislation which both Senators Sinema and Manchin supported. This is a clear sign that something else must be motivating their recently expressed reticence to support that proposal.
The second and more direct piece of evidence is that Senator Manchin stated that he would support the administration’s agenda insofar as it had the support of “Trump voters.” This is a clear admission that Senate collegiality is not his deciding factor when considering proposed legislation. Moreover, his reference to “Trump voters” is no accident. He represents the State of West Virginia, a state in which Trump defeated Biden by a whopping 39 percentage points (68.6% to 29.7%) notwithstanding the fact that Democratic registered voters there actually outnumber Republican registered voters (36.68% to 36.41%). Indeed, Trump proved so popular among West Virginia voters that Biden only received the votes of 80% of the state’s registered Democrats. Accordingly, Senator Manchin’s ability to win his next election will require that he appeal to a large portion of those individuals who voted for Trump.
Senator Sinema faces a similar problem in her State of Arizona. There, registered Republicans continue to outnumber registered Democrats despite a major voter registration drive conducted by Democrats last year which enabled Biden to defeat Trump by a very narrow margin (0.4% of the total vote). Almost a third of the voters in her state have no party affiliation which means that her re-election will depend on the popular approval in her state for the legislation that she supports.
What this reveals is that the support of these two senators for circumventing the filibuster rule to enable the passage of both the “For the People Act” and the President’s infrastructure proposal is not out of reach. It will first require an attempt by the Biden administration to achieve bipartisan support in the Senate (which, in all likelihood, will not be forthcoming). This is an important safeguard as it will prevent Republicans from implying that the legislation contains some detrimental provisions requiring it to be rammed through the Senate over their objections. More importantly, the Democrats must undertake an all-out campaign (especially in the States of Arizona and West Virginia) to win popular support for these bills. This important step was not taken by the Obama administration allowing Republicans to vilify the Affordable Care Act for several years. It was only when the Republicans in 2017 sought to repeal the ACA that Americans actually came to understand its importance. Winning popular support for the infrastructure bill may not prove difficult. As The New York Times reported this morning, a recent national poll reveals that over 70% of Americans approve of the President’s infrastructure proposal, including 57% of registered Republicans.
No corresponding polling currently exists for the “For the People Act.” At this point, however, there is a building groundswell of corporate opposition to Republican efforts in the states to suppress voting. If that opposition does not discourage Republican state legislators from proceeding with their plans to enact such restrictions, it may serve to engender the popular support needed to convince Senators Sinema and Manchin to suspend the filibuster rule to enable the passage of the “For the People Act.”