The left’s going to have a collective aneurysm.
Remember that when Harry Reid and the Dems curtailed the filibuster in 2013, and then Mitch McConnell and the GOP curtailed it again four years later, they each did so with simple majorities. That’s a paradox of the filibuster: Although it requires 60 votes for cloture on legislation, it can be limited or eliminated entirely with just 51.
…Can’t it? Under existing Senate rules, 67 votes are required to change a rule. Reid got around that by using a bit of procedural chicanery in which the majority leader raises a point of order challenging a rule, that point of order is denied, and then that ruling is appealed and overturned by a simple majority of the Senate — effectively establishing a new rule that overwrites the previous rule. Everyone has assumed that if and when the filibuster is nuked, that’s how it’ll be done. That’s the only way it could be done, realistically. Any Senate willing and able to provide 67 votes to eliminate the filibuster is a Senate that shouldn’t have trouble providing 60 votes to overcome a filibuster on legislation, in which case why would the majority need to eliminate it?
John McCormack cornered Joe Manchin in the Capitol today and asked him about that. Is he prepared to use procedural chicanery to overturn the filibuster if and when he decides that it needs to go or will he insist on an old-school following of the rules that requires 67 votes to do so? Manchin’s reply was shocking:
When asked that question in the Capitol on Thursday, Manchin told National Review: “Go read Rule XXII, and then tell me what you think.”
Rule XXII of the Standing Rules of the Senate says that in order to cut off debate on “a measure or motion to amend the Senate rules” the “affirmative vote shall be two-thirds of the Senators present and voting.”
I asked Manchin if he supports the Senate rule effectively requiring 67 votes to change the rules — rather than using the so-called “nuclear option” to override Senate rules with a simple majority.
“Let’s just use the rules we already have,” Manchin said.
That’s a classic Manchin filibuster answer in that it’s evasive yet provocative. He hates being pinned down on this subject because he knows he might need room to maneuver as the politics surrounding it change on the left. But he also doesn’t want to antagonize either side more than he needs to since left and right are pulling him in opposite directions. So here he is strongly implying that Schumer should demand 67 votes for a rule change, which would make ending the filibuster impossible, without quite saying that he’d refuse to go along if Schumer chose the 51-vote nuclear option instead.
I wonder if he’s sounded out other “nuclear” skeptics in his caucus, like Kyrsten Sinema and Jeanne Shaheen, on rallying together behind Rule XXII. In a way, it’s a natural response to the demand being made by Stacey Abrams and others for a special carve-out from the filibuster for voting-rights legislation. Both sides have already indulged in too many irregular procedures, Manchin might say, by using simple majorities to make a hash of a procedure that’s supposed to protect the minority. If we’re going to do something as momentous as ending the filibuster or adding major exceptions to it that’ll eventually and inevitably cannibalize the rule, we should have supermajority support. Sixty-seven votes, just like Rule XXII says.
If he dug in on that, it would mean progressives are much further away from eliminating the filibuster than they assumed and that there’s virtually no hope of getting it done before 2023. Convincing Manchin to change his mind on reforming the filibuster and then passing H.R. 1 is hard enough in isolation. Convincing him to also retreat from his (apparent) position that Rule XXII should govern the process now that he’s staked out that ground makes it that much harder. Manchin won’t even give them cover on their new favorite talking point, telling reporters today that he disagreed with the claim that the filibuster is a relic of the Jim Crow era. It wasn’t a racist relic last year when Dems were using it regularly, after all. Why would it be a relic now?
Speaking of which, two clips for you. Here’s the president this afternoon — and 16 years ago. Hoo boy.
.@kaitlancollins: "Do you agree that the filibuster is a relic of the Jim Crow era?"
BIDEN: "Yes."@kaitlancollins: "Why not abolish it if it's a relic of the Jim Crow era?"
BIDEN: "Successful electoral politics is the art of the possible." pic.twitter.com/MVCFoAHGZL
— Daily Caller (@DailyCaller) March 25, 2021
Then-SEN. BIDEN (5/23/2005): “At its core, the filibuster is not about stopping a nominee or a bill, it is about compromise and moderation. That is why the Founders put unlimited debate in. That is what it is about, engendering compromise and moderation.” pic.twitter.com/AnmfRsaKpk
— Senate Republican Communications Center (@SRCC) January 25, 2021
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