Please explain your Senate rules to me

Right, Senator Manchin says he’s not prepared to end the traditions of the Senate and kill the fillibuster.

But why is the filibuster so important to him? Why is supporting minority rule in the Senate essential to democracy?

As far as I can tell he seems sincere. So I’m not interested in allegations of bad faith.

What is the principle behind the filibuster? It means that a bill that has majority support may not pass. I just don’t get it.

(Putting this in P&E because although I’m not proposing a debate, it’s an intensely political issue. )

Some discussion in a similar thread I started last year:

Senator Manchin purports to believe that the Senate filibuster – which effectively requires 60 out of 100 Senators to agree in order to move forward with almost all legislation (there are exceptions) – promotes bipartisanship by forcing the majority party (who is unlikely to have 60 seats) to seek compromise with the minority party.

There is very little evidence that he is right. It’s worth noting that the filibuster is an unplanned anomaly that the Senate accidentally created by changing some rules early in its history. It’s use throughout history has almost always been for a recalcitrant minority to kill legislation – I can’t off the top of my head think of a single example where a filibustered bill was later passed because the two sides reached a compromise.

There are at least two possible reasons Manchin could be against ending the filibuster:

One, because maintaining it requires some degree of consensus in order to pass anything. The idea is that anything that can’t get 60% of votes shouldn’t be pushed through and imposed on the entire country by a bare majority.

While right now it would advantage the Democrats to kill the filibuster, if they find themselves in the minority later it would be a huge advantage to the Republicans.

The problem with that is that recently (as in, since approximately 2008), it’s been pretty much the official policy of the Republican party to oppose anything significant that the Democrats want, just because the Democrats want it. This has sometimes included things that individual Republican Senators favored when they thought the Republicans would get the credit. Also, the Republicans have shown themselves willing to ditch the filibuster any time it advantages the Democrats (by removing it, for instance, for Supreme Court nominations); so if they’re going to do it anyway next time they get the chance, the Democrats might better do it now.

The other reason is because he might well think that his constituents want him to keep it, and that they’ll vote him out of office if he votes to kill it.

The Senate was designed to act as a brake on the House.

Representatives are elected to 2-year terms. Even 200 years ago, that meant that they would spend considerably more time campaigning compared to Senators, and more time considering how votes would be perceived by their constituents. Because Senators have 6-year terms, they are somewhat insulated from fads, waves of popular emotion, etc.

The filibuster is part and parcel of the Senate’s more deliberative function. The Senate was explicitly designed to move slower than the House.

The idea that the Senate is more “deliberative” than the House has never really been true and is even less so today. As I mentioned above, the filibuster was not deliberately engineered – it was accidentally created when the Senate thought they were just cleaning up their rules and only later realized they’d eliminated the ability to terminate debate. The first filibuster didn’t occur until 1837 and was rare until the early-to-mid 20th Century.

Why does moving slowly require minority control over legislation?

The main purported benefit of it is to prevent a majority party from just rushing a bill through both chambers of congress and stifling public debate on it. Filibustering was not supposed to be indefinite. With the old rules (where someone actually had to be up there reading the dictionary) this worked better than it does now where the possibility has existed since the rule change for McConnell-style blanket filibustering.

Up until the last couple of decades, it was viewed by senators as either a speed bump for somewhat partisan legislation or appointment, or something you could use every once in a while to completely kill something that was so bad (as you saw it) it was worth grinding everything to a halt. I don’t think anyone including Manchin thinks the current status quo is a good way of doing things.

I think how we ended up with a completely dysfunctional legislature is a complicated question but part of it I think is that the non-talking filibuster only really worked when congress was largely a private club. Since then, we’ve had C-SPAN broadcast it to the world, and in some ways turn it into entertainment. We’ve seen primary campaigns unseat more and more politicians favored by the party bosses. Nowadays the media and advocacy/lobbying groups get involved in the nitty gritty of legislative process and will report a vote to invoke cloture as a vote for a bill. A politician who lets a gun control bill get to a vote and then votes against it isn’t going to be able to explain that to the NRA. We’ve also just seen that playing hardball in a lot of areas has been effective, and politicians are going to keep returning to a strategy that works. Not to mention if you replace two white guys who both went to an Ivy League school and have been going to the same dinner parties for decades with two people who come from completely different backgrounds and got into politics for completely different reasons, cutting a deal, trading votes etc. just isn’t going to come as naturally. Whether this is a net positive or a net negative it’s already happened and I don’t see how we go back.

I’m both anti-Senate and very anti-filibuster but one thing that I would say is that there is always some danger to getting rid of norms - even stupid norms. The biggest practical effect (which I generally think is negative) of the filibuster is that it is nearly impossible for a party to have enough of a majority to enact their entire agenda unimpeded. I think this is a bad thing because ultimately voters are a better check against bad policy than obstruction from the opposition. However even I’d have some concerns about the realignment period where parties can do whatever they promise and now have to pay the piper for the things they said they would do if they didn’t have to worry about the other party (or at least some of them anyway).

While I know you said you don’t want to consider him talking in bad faith, I don’t think that means we have to assume that Manchin is giving the full story on why he opposes it. The thing is, Manchin was willing to hear arguments on modifying or eliminating the filibuster. So clearly what he is saying now isn’t his only concern.

For some reason, he seems to be against the bill that would prevent the vote suppression the Republicans are working on. I could get him being against some parts of it, but the basic parts of ensuring that certain tactics cannot be used to try and disenfranchise people of color seems like a no-brainer, and that, if it can’t get bipartisan support, it’s clear that the Republicans are in fact trying to overturn democracy. The only way to maintain the principles he keeps on mentioning is to make sure elections remain fair.

Since he’s against this law, then it makes sense that he sees no advantage in removing or reforming the filibuster to get it passed. For him, it’s all downside and no upside.

I mean, there is a huge downside no one has mentioned: all it takes right now is for one Democrat to defect and the Republicans win. If he eliminates the filibuster and then can’t pass legislation, he did something really controversial without any benefits. So he needs all 49 other people in his caucus (including the two independents) ready to vote for the bill (or some other important bills that can’t be passed currently) or else it amount to nothing.

But that still doesn’t explain him saying he’d vote against the bill. That’s the part that got me mad at him. It’s one thing to not want to nuke the filibuster, but another to go against the bill his party in general does support, and to call it partisan to try and stop voter suppression and disenfranchisement.

Sure, modify the bill to take some things out you don’t approve of, but he needs to get with the program on stopping Republicans from fixing the vote. You can’t have bipartisanship if one party is cheating.

As far as Manchin himself is concerned, the inescapable fact is that he represents a state that went for Trump by 42 percentage points. It would be hard for him to side with the Democrats on this one.

As far as the Senate filibuster itself, it’s basically a short-term gain vs. long-term drawback thing. Getting rid of it now would benefit the Democrats, but invites retaliation from the Republicans down the road when it’s “their turn.”

Personally, I think the filibuster is anti-democratic. If a party has a majority, it has a majority. A 51% majority ought to be able to get things done just like a 60% majority. It simply requires tighter party discipline. The whole point of having a majority, no matter how slim, is that you ought to be able to run roughshod over your opponents with it (I wish there were a more delicate way to put it but there isn’t.)

I would disagree that the Senate has never been more deliberative. In its early history, especially the period roughly 1800-1835 or so, it definitely was. The thing is the concept of the Senate being deliberative was not tied to the filibuster, as you mention the filibuster is a rules quirk, didn’t emerge until decades after the constitution was ratified, and was used extremely sparingly for the first 200 or so years of our country’s history.

Reading the writings of the Founders, it is explicitly stated, by using that exact term, that the Senate be the “more deliberative” body. The Founders who spoke to this believed it would be more deliberative for a few reasons:

  • Its smaller membership meant that its members would know one another better and be better able to discuss things rationally and civilly

  • Its longer terms meant that its members would not be constantly in fear of their next election, somewhat insulated from any immediate consequence of their actions, they would be free to discuss the merits of issues versus simply being a proxy for a specific political passion of the moment.

  • The fact that the Senators were selected by State Legislatures, meant they were further insulated from public passion. It was again, felt that the more separated one was from the people, the more one was free to argue and discuss things on their merits.

The core conception was that the House as designed would be the “raucous chamber of democracy”, where short-termed men, directly elected, would be acting with haste and vigor. The Senate was to be the genteel club of debaters, older men, more temperate in their passions and removed from public scrutiny.

I’m simply explaining the literal musings of the Founders in things like the Federalist Papers and a few other early documents–some of their assumptions about both the Senate and the House ended up being wrong. But in general I would say the Senate was actually more deliberative. Oddly though, the Senate actually typically moved faster in passing legislation than the House in the first decade or so, largely because its numbers were so small that it resolved issues fairly quickly, while the House had lots more members jockeying for various things.

But if you actually look at the direction the rules of the Senate vs the House went, the Senate really did follow a path of being more intentionally deliberative. For years the Senate met in true secrecy, with no gallery of observers. Some famous Senate debates were conducted in Secret and only recorded for posterity in text form. The Senate established far more genteel rules for speaking, the Senate vested more power in its individual members, while the House afforded the Speaker much more power to move things along.

By the 1830s the Senate really was in many ways that count, a more deliberative body than the U.S. House. The modern view that this is because of the filibuster is not correct, it is more about the culture in the Senate and the broader rulers of procedure in the Senate.

Something of note about Senate and House rules, is in he early days they were heavily informed by British Parliamentary rules. While Thomas Jefferson was Vice President (which is also, of course, President of the Senate), one thing he did to make himself useful was write the Jefferson Manual, the Manual was not intended to be a direct rules of procedure for the Senate. What it instead was intended to be, was Jefferson’s professional “review” of the British Parliamentary rules of procedure that governed the Westminster Parliament, with specific notations added linking those rules, where applicable and possible, to U.S. Constitutional mechanisms and the U.S. Senate.

From very early on, both Houses actually would keep copies of Jefferson’s manual around to help decide on proper procedural paths to take. It was not their procedure, but it was a sort of “guidebook” to good/proper procedure, that informed the development of procedure. While he wrote it for the Senate, much of his Manual pertains to the procedures of the House of Commons in Britain, and both Houses ended up drawing from it quite a lot. The manual was revised in 1812 by Jefferson, and the House actually incorporated the revised manual as part of its official rules in 1837 (the Senate actually never has, but publishes a version of the manual and considers it an important source document for its rules.)

I mention Jefferson’s manual because this is a thread asking about the rules of the Senate, and it’s worth understanding that a lot of our rules that seem really weird in our Congress actually have direct linkage to 18th century British parliamentary rules, specifically through the medium of Jefferson’s Manual.

I think Senators are in general better legislators in that they must win statewide elections and can’t be cut from the Crazy Marjorie cloth. That plus the 6 years between elections mean they should in theory be more sober and deliberate in their actions. The filibuster, or more accurately- cloture, served well until the Republican hyperpartisanship began in the 1980s. Used to be rare that cloture votes didn’t pass easily. Now Republicans will block absolutely everything possible because they’ll happily steer the ship of state into the reef as long as it means they’ll get to control the wreckage. It’s long past time to get rid of this antiquated rule since modern politics has turned it into a lethal weapon.

If that really is the issue, then it would seem to make the most sense for the states that are more blue not to let him stay in charge. If the only way to get someone to help out the Democrats is for them to be from a state that went for Biden, get them in there. If you can’t, then compromise by having it be a state that was close to call.

But don’t leave the guy who is worried about Republican voters kicking him out if he supports his own party’s goals in charge of the Democratic caucus.

No, his actions better be based on what’s best for his party (and the country).

The problem is that the alternative to Joe Manchin is a Republican, not a more liberal Democrat. There’s really very little room for the Democrats to make. gains in the senate. There are only 6 states with a purple senate makeup and WV is one of them. Montana is another, and that Republican seat is highly unlikely to flip. Ohio’ Republican seat is only slightly more likely to flip than Montana’s. That leaves the seats in Wisconsin (Ron Johnson), Maine (Susan Collins), and Pennsylvania (Pat Toomey) as the only seats available from blue or purple states. The only only two other remotely likely seats that might flip are the North Carolina seats. Fortunately 3 of those seats are coming up in 2022. This means the best Democrats can hope for after 2022 is 53-47. Short of a massive political realignment (i.e. the death of the Republican Party as it currently exists) there’s no way the Democrats will ever reach 60 seats. That’s the extent of. my wildest hope.

He doesn’t have a leadership position in the senate, other than chairing the Energy Committee. He’s just the 50th vote, and the most conservative Democratic senator. As such, he has the power to stop any proposed legislation or rule change by not voting for it. Democrats would love to have an additional vote, or have a different, less conservative person from a less conservative state be their most conservative member. But Manchin is who they have to deal with now.

I think, if they can’t get Manchin on board with eliminating the filibuster, they should ask him to support reverting to the talking filibuster. If nothing can get passed anyway, make it painful for the party doing the filibustering. If it’s going to exist, it should be painful in the hopes that it will be rare.

Right, a big issue is the party was well positioned to end up with a 51-53 seat majority, and ended up only winning 50. That is a position of “fundamental weakness” and Manchin is actually more a symptom of that versus a cause. I really think the party could have beaten Collins, but failed badly, and I think they could’ve won the Senate race in North Carolina but had similar issues. Iowa was a stretch goal so not super surprised they lost there. They actually almost lost Gary Peters seat in Michigan which most pundits thought was “strong lean Dem” before election day.

Basically the Dems underperformed across the board in the 2020 Senate races. They also underperformed in Florida in 2018, which had the effect of costing them what was potentially a possible additional term for Bill Nelson and control of the Governor’s Mansion. Nelson has been specifically cited as having ran a very lackluster and anemic campaign operation in Florida that year, which is just not what was needed.

I don’t believe that is correct. I believe there never was a “Previous Question” in the Senate Rules. I’ve heard two reasons:
1: Gentlemen would control their own debate and should not be limited in their discussion.
2: There was a misunderstanding over the motion “Previous Question”.

BUT another issue is that rules contain built in limitations to debate. For example in Robert’s Rules each member can only speak twice for 15 minutes at a time. Since these were not built in to begin with, I think #1 is the real reason.

I’m really not that interested in Senator Manchin, thanks.

What was the rule change in the 1830s that created the filibuster?

Two things where I guess I differ, at least on my bad days. A worst case scenario where the Republicans control all three houses with narrow majorities is always highly possible in the U.S. (we could see it again in less than four years) and I am apprehensive about that party’s current lack of restraint. Particularly in this modern age of hyper-polarization.

Two, these last few election cycles have soured me on any hope for sensibility out of a large chunk of the electorate. Which is a depressingly anti-democratic point of view to have, but one I struggle with nonetheless. On my bad days, anyway.

You are incorrect. Moving the previous question was part of the Senate rules from the start, but was removed at the urging of Vice President Aaron Burr in 1806. The motion was rarely used and thought to be unnecessary, it was only later that Senators realized that it was necessary to cut off debate.