Can the Senate Restore Majority Rule?

We’ve known all along that, Joe Biden’s pleas for “unity” notwithstanding, he would get precious little cooperation from Republicans. Beyond the courtesy of confirming most of the new president’s appointees—one old norm that still obtains, more or less—congressional Republicans will give Biden nothing. And he seeks nothing. His campaign rhetoric was driven by polls showing that most Americans still want to hear their politicians, especially their president, talk about working across party lines. But he and his team aren’t naive enough to believe that he’ll usher in a new age of bipartisanship. Hence the decision to pursue a major Covid relief bill right away and to pass it via the reconciliation process, which limits what can be included in the legislation but requires only a majority to pass, obviating the need to corral any Republican votes.

The path toward passage of the historic American Rescue Plan, the $1.9 trillion relief bill, also revealed that Biden will have some difficulties with his own party. Yes, the bill passed, and yes, it was an enormous victory, both symbolically and substantively. It will provide money for vaccines and schools, it will help the unemployed (there are still about 10 million fewer jobs than there were before the pandemic hit), and it will put money in people’s pockets that, it is hoped and presumed, they will reinvest in the economy as the country opens back up. More than that, the aid plan represents the beginning of a potential shift to large-scale public investment without the overriding concern about deficits and inflation that free-market neoliberalism has imposed upon much of US economic policy-making for forty years.

But it wasn’t easy. Those on the left were livid that the Senate parliamentarian ruled that the minimum-wage provision be stripped from the bill because it had no direct budgetary impact, as required by the reconciliation provisions. And they were angry that the Biden administration immediately announced that it would not seek to challenge the ruling, which would have been possible: if Vice President Kamala Harris, in her capacity as president of the Senate, had decided to ignore it, sixty votes would have been required to overrule her, meaning that Biden could have muscled the minimum-wage increase through. He chose not to, because the administration believed—accurately, as it turns out—that there just aren’t fifty votes in the Senate for a $15-per-hour minimum wage.

The disagreement over this provision was a snag in what has otherwise been a pretty smooth relationship so far between the president and the Democratic left. This is generally credited to Ron Klain, Biden’s smart and approachable chief of staff—a mainstream liberal himself, but not at all contemptuous of those to his left, as Obama’s first chief of staff, Rahm Emanuel, was. Klain keeps lines of communication open. Further, on personnel and policy Biden has been more progressive than many expected. Here, for example, was Alexandria Ocasio-Cortez on Chris Hayes’s MSNBC show on January 27, after the new president signed a number of environment-related executive orders and John Kerry, Biden’s special presidential envoy for climate, and Gina McCarthy, the White House national climate adviser, laid out their green priorities:

Now, I’m feeling extraordinarily encouraged. And I think that the significance of President Biden’s executive orders communicates a lot. One is that it really communicates that he meant what he said on the campaign trail, that he would make climate change a central priority of his administration, and that he considers it not just a national security threat, but frankly, you know, the global matter that it is.

Good intentions, of course, only go so far. To satisfy the left, the administration will need to deliver this year or next on a long list of demands, from infrastructure to green jobs to immigration reform. On the minimum wage in particular, success will probably come by attaching it to a “must-pass” bill, like a defense appropriation. That’s how the last minimum-wage increase got through, in 2007. And it may be around $13 instead of $15. Whether the left will accept a lower figure is unclear, but Biden may have to try to convince them that $13 would constitute a significant progressive win, particularly if it’s indexed to inflation. For a forty-hour work week, $13 an hour would amount to an annual salary of $26,000 (assuming two weeks of unpaid vacation). Because the increase is phased in over time, the US minimum wage would eventually surpass that of most other developed nations. (France’s is at $12.20 an hour, the UK’s is at $12.13 and slated to rise slightly in April, and Germany’s is at $11.15.)

The left will keep up the fight over the minimum wage—and it should. But I would guess that Biden won’t lose many votes in Congress among progressives, so long as the administration treats them respectfully and accomplishes something. While the Senate was debating the Covid bill, Bernie Sanders introduced a stand-alone minimum-wage amendment. It lost badly, opposed by some Democrats who were concerned that if it passed and thus was reinserted in the overall bill, it would simply have to be removed again per the parliamentarian’s verdict. In the end, Sanders voted for Biden’s bill and praised it effusively, calling it “the most significant piece of legislation to benefit working families in the modern history of this country.” Given that endorsement from Sanders, it’s no surprise that no House progressives voted against the bill when the House passed it Tuesday.

Biden’s bigger problem for the foreseeable future emanates from the middle—from Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. They have made it manifestly clear that the Biden White House will have to work to get their votes. They—Manchin especially—insist that they will support only genuinely bipartisan bills and have little taste for reconciliation (though they did both vote for the Covid bill). It is the “Byrd Rule” that restricts what can be included in reconciliation bills, and Manchin holds the seat once occupied by Robert C. Byrd.

In fairness, Manchin’s seat is precarious. Donald Trump carried West Virginia last year by 39 points, his second-highest victory margin in the country, after Wyoming. It’s a stunning number, and a formidable one for a statewide Democrat to contemplate. Manchin will be up for reelection (assuming he chooses to run) in 2024, and he must already know how many voters for the GOP presidential candidate he’ll have to persuade to vote for him, in this era when ticket-splitting is all but dead. (Back-of-envelope calculation: probably at least 80,000—more than 10 percent of the state’s electorate.)

I grew up in West Virginia in the 1960s and 1970s. It was a reliably Democratic state then, thanks in large part to the heavy presence of the United Mine Workers union. Today, coal-mining employs a fraction of what it did when I was a child. Class consciousness of the old New Deal sort is gone, replaced by an anger, stoked by Fox News and others, at the snooty elites who want to stop burning coal and destroy those jobs that do remain. During the Obama years, the state swung hard to the right: Republicans now control both houses of the state legislature, which would have been unthinkable twenty years ago. This year, for the first time in decades, Republican voter enrollment outpaced Democratic, according to figures released by the West Virginia secretary of state’s office three weeks into the Biden presidency.¹

Sinema would seem to have less of an excuse than Manchin for her aggressive centrism. Biden carried Arizona, however narrowly (three tenths of one percentage point). But Republicans control the governor’s mansion and both state houses; it’s certainly not a blue state, though it does appear to be getting bluer. Sinema is a rather enigmatic figure. Once affiliated with the state’s Green Party, she wrote a letter to the editor of The Arizona Republic in 2002 that included the sentence: “Until the average American realizes that capitalism damages her livelihood while augmenting the livelihoods of the wealthy, the Almighty Dollar will continue to rule.” As a state senator, she was mostly progressive, although cautious on immigration issues. (She opposed the successful effort to recall GOP state senator Russell Pearce, a hard-line anti-immigration figure.) When she first ran for the House, in a town-and-gown Tucson district, she campaigned to the left of her two opponents, both men.

Whatever motivates her—the dream that the presidency may one day be hers is a safe guess—she will be a constant annoyance for Biden. Sinema and Manchin have carved out for themselves considerable leverage. If their votes are the ones that can put Biden over the top, when a simple majority is needed during the reconciliation process, legislation can be only as progressive as they wish it to be. They are practically copresidents already.

Manchin had been using his leverage adroitly—until, in the final hours before the Senate voted on the relief bill, he appeared to overplay his hand. Democrats had reached broad agreement on the relief bill’s main aspects—the income levels to which direct payments would extend, and the size and duration of unemployment benefits—when Manchin suddenly decided that he wanted more limits on unemployment benefits. He said that if people are vaccinated by the summer and ready to go back to work, the government shouldn’t be paying them to stay home. “It’d be awful for the doors to open up and there’s no one working,” he said. “That’s the problem.” One Democratic source in the Senate told me that Manchin has long been concerned about fraud with respect to unemployment and disability benefits.

Manchin had spoken those words on Tuesday, March 2, and won a significant concession afterward: monthly unemployment benefits were cut from $400 to $300. It therefore shocked his fellow Democrats when he said on Friday, March 5, that the new numbers still weren’t good enough. He held up the Senate for ten hours. Even his fellow West Virginia senator, Shelley Moore Capito, a Republican, was perplexed. “I have no idea what he’s doing, to be quite frank,” she told Politico.²

In the end, President Biden called him and talked him down. Manchin voted for the final bill—and voted with his fellow Democrats to oppose some twenty Republican amendments. This is part of a pattern; he is usually there when his party genuinely needs him (he opposed the repeal of Obamacare, for example). But he knows how much power he holds, and he will use it. Given the nature of West Virginia politics, he is impervious to pressure from the left, which lacks the numbers in the state to threaten him. Stephen Smith, the dynamic leader of the West Virginia Can’t Wait movement, ran a left-populist campaign for governor in 2020 and finished a respectable second to a more standard-issue Democrat. Smith thinks that only a certain kind of localized pressure could get Manchin to support more progressive policies. “When outsiders sprinkle last-minute Facebook ads and action alerts on our state, he laughs,” Smith told me. “Because they pose no credible threat. To win, our threat must be local, fearless, permanent, and owned by the working-class West Virginians who’ve been robbed by generations of politicians.”

The broader point is that the Democratic Party, which stretches from AOC to Joe Manchin (not to mention a number of House moderates), is something of an anachronism, dating back to the era when both parties were ideologically diverse—when, in the Senate, the GOP caucus included the New York liberal Jacob Javits and the Arizona conservative Barry Goldwater, and the Democratic gamut ran from the Michigan liberal Philip Hart to the Dixiecrat James Eastland. Among developed democracies, this heterogeneity was unique to the United States. Now, as our politics has become completely polarized, our parties have become more ideologically homogenous, and more parliamentary-style in matters of discipline. Comparative political science will tell you that “Westminster”-like parties don’t have Manchins and Sinemas—legislators vote for the party platform, period. The Republican Party has become that kind of party (although, with Mitt Romney in the Senate, not quite as predictably; he follows the party line on policy but was willing to buck President Trump). The Democrats may have moved in that direction, but there is no Manchin of the GOP.

One question of the Biden era, then—perhaps the question—is whether this still fairly big-tent, American-style party can function (and deliver) in an age when parliamentary-style discipline is required. With a Senate split 50–50 and a nine-seat margin in the House, there is little to no room for error. Which brings us to the issue that the Democrats absolutely cannot avoid confronting during this congressional term: what to do about the filibuster.

Adam Jentleson’s Kill Switch is the most exquisitely timed book I’ve encountered in years. Jentleson’s explanation of the filibuster’s ignominious roots, and of the mendacious arguments made today by its defenders, is careful and thorough and exacting. Every senator should be forced to read it and then reread it.

If they did, they would know that the notion of “unlimited debate”—the claim that the Senate is a special institution because it accommodates endless discussion of legislation—is a lie. They would know that the idea that the Senate was somehow designed to defend the rights of the minority is also a lie, and a particularly pernicious one, as the filibuster was invented by John C. Calhoun to uphold slavery and white supremacy. They would know how the Senate, sometimes by unhappy accident and sometimes by the malevolent design of those who exploited its rules, has become the graveyard of progressive legislation.

Jentleson, a former aide to Democratic senator Harry Reid, begins Kill Switch by emphasizing that the Founders were opponents of supermajorities, precisely because they gave a minority the power of a majority. In today’s Senate, the “cloture” procedure, which ends debate and calls for a final-passage vote, requires sixty votes, which in essence means that forty-one senators can block legislation. Jentleson demonstrates that, with very few exceptions, “whenever proposals for supermajority thresholds were raised at the [constitutional] convention they were summarily dismissed.” James Madison, the father of the Constitution and its leading theorist, was a firm opponent of minority rule from 1787 (the year of the convention) until his death. “To establish a positive and permanent rule giving such a power, to such a minority, over such a majority,” he wrote, “would overturn the first principle of free government, and in practice necessarily overturn the government itself.”

Originally, the Senate had a rule, called the “previous question” rule, that held that after sufficient debate, the president of the Senate could decide to force a vote. It was the precursor to today’s cloture vote—the crucial difference being that a simple majority could then call the question. By design, debate in the Senate was allowed to carry on, but with firm limits. Five of the original nineteen Senate rules placed limits on debate. And a certain decorum obtained such that senators—gentlemen all, in those days—agreed when it seemed about time to vote. So in 1806, in an effort to clear away some rules that were thought unnecessary, the Senate ended the previous question motion.

With this stroke, there was no way to cut off debate—but no one really exploited this change until Calhoun, representing South Carolina, did so in 1841. His opposition was to a bank bill, though the fight, as Jentleson notes, “was really about slavery” and the southern planters’ fear that a national bank would erode the power of the slave states. Calhoun organized the southern senators to speak and speak and speak, hoping to run out the clock until a scheduled summer adjournment. Henry Clay of Kentucky moved to restore the previous question rule, and Calhoun, in Jentleson’s words, “erupted. He invoked the loftiest of principles to cast Clay as a tyrant, and himself as the oppressed minority guarding Senate tradition.” The bank bill ultimately passed, but the filibuster, even though it had no name yet, was born.³ After an (also unsuccessful) 1848 filibuster against a bill banning slavery in the Oregon territory, Calhoun wrote a treatise making an unapologetic case for minority rule, all in the name of defending slavery and white supremacy.

Throughout the nineteenth century, senators occasionally attempted reform. One fateful Friday in 1891, the powerful senator Nelson Aldrich of Rhode Island left work thinking that he had the votes to restore the previous question rule. But his opponents—again, chiefly racist southerners—spent the weekend organizing, and Aldrich’s motion failed by one vote. Another pivotal moment came in 1917, when President Woodrow Wilson, in the waning days of the Sixty-Fourth Congress, sought a bill to arm American merchant ships. This time it was progressives who filibustered, led by Wisconsin senator Robert LaFollette, running out the clock on the session. This inspired Wilson’s famous remark that “a little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” It led the Senate to pass Rule 22, a formal procedure through which to end filibusters. However, whereas the old previous question motion could be invoked by a simple majority, the 1917 Senate decided that all debate could be ended by a two-thirds majority (reduced in 1975 to the three fifths of today). Ironically, a majority of the committee that wrote Rule 22 wanted the threshold to be a simple majority, but they compromised with the minority.

The more recent villain of the story is master of Senate rules Richard Russell of Georgia, like Calhoun an avowed white supremacist. In 1949 Russell fought an attempt by President Harry Truman’s administration to pass an anti–poll tax bill by expanding and strengthening Rule 22 and making it almost impossible to change. Russell, Jentleson writes, “had not just won a skirmish over an obscure rule, he had chosen the Senate’s future.”

The filibuster had chiefly been used to block civil rights legislation. But once the 1964 Civil Rights Act was passed, something odd and important happened. The filibuster lost much of its stigma as a tool of white supremacy. Jentleson quotes the CBS News reporter Roger Mudd, who passed away on March 9: “The filibuster began to lose its mystique, and without its mystique it slowly became just another run-of-the-mill legislative tactic of delay, no longer the exclusive weapon of the South.” As a result of other rule changes, senators no longer had to execute a real, “talking” filibuster. Now the mere threat is enough, and it can be made by Senate aides: “All you have to do,” writes Jentleson, “is call the cloakroom, tell them the senator you work for intends to place a hold on the bill, and the bill is filibustered.”

This dysfunctional system has been exploited to certain degrees by both parties, but by no one so expertly as Senate Minority Leader Mitch McConnell. Reid, Jentleson’s old boss, will be remembered for having invoked the “nuclear option”—that is, using parliamentary procedure to change standing Senate rules—to eliminate the sixty-vote threshold for presidential appointees and federal judges, but he did so only after McConnell had taken filibustering to unprecedented extremes: “By the time Reid went nuclear, half of all filibusters against nominees in the history of the United States were waged by Senate Republicans against Obama’s [appointees].”

So here we are. The Democrats’ options are not merely to maintain the status quo or eliminate the filibuster altogether. In mid-February the Vox legal affairs correspondent Ian Millhiser wrote what may be the most comprehensive examination of the Democrats’ options, which boil down to four: make fewer bills subject to the filibuster, make it harder to initiate one, make it easier to break one, and reduce the amount of time required to invoke cloture.⁴

Many observers think the Democrats will ultimately pursue one of these, or some other reform, like making Republicans carry out a real filibuster and hold the floor for hours. Some who know Manchin’s thinking believe that even he—after a few months of watching McConnell say no to everything and hearing his friend Susan Collins of Maine explain to him that she’d like to vote for such-and-such a bill but McConnell wouldn’t let her—will come around. On March 7, on Meet the Press, Manchin opened the door just a crack to reform, saying, “And now, if you want to make it a little more painful? Make ’em stand there and talk? I’m willing to look at any way we can.”

Biden’s success may well depend on it. If the administration brings us out of the pandemic successfully, it will generate enormous goodwill. But then there’s the rest of the agenda: climate, jobs, infrastructure, immigration, the minimum wage—and most important of all, protecting voting rights and democracy. If the Democrats can’t stop the Republican assault on voting, which the GOP has taken up with increased ferocity this year, they will lose future elections to the party that represents a minority in this country and that will then further change the rules to solidify its power.

It looks like Calhoun and Russell all over again. Still today, the struggle comes back to race, and to the same debate we’ve been having since the beginning of the republic: whether to establish the simple democratic principle of majority rule and crush the pernicious lie that majority rule leads to tyranny, when our history amply shows that the opposite is the case.

—March 11, 2021