Manchin: No, I won't nuke the filibuster even if Republicans nuke the January 6 commission

AP Photo/Manuel Balce Ceneta

I guess that answers the question posed by Friday’s post. Lefties have been hammering Manchin for believing that Republicans will compromise under the right circumstances and thus eliminating the filibuster isn’t necessary. That belief is now being tested with infrastructure talks suddenly hanging by a thread and a filibuster of the House’s January 6 commission bill looming. (Police reform still stands a fair chance of happening.) Manchin sounded almost distraught last week when asked about the commission going down in flames. “So disheartening. It makes you really concerned about our country,” he told reporters. “I’m still praying we’ve still got 10 good solid patriots within that conference.”

That last comment seemed to hint that if Republicans blocked the commission, he’d have no choice but to conclude that there aren’t 10 good solid patriots in the Senate GOP. After all, if the two sides can’t come together on something as nonpartisan as investigating an attack on the Capitol, they can’t realistically come together on anything. In which case Manchin’s theory that Republicans are capable of reasonable compromise would be disproved.

And suddenly all bets on the filibuster would be off.

Reporters confronted him about that today. Was he hinting that he’d reconsider his support for the filibuster if the commission bill is blocked? Uh, no, Manchin said today:

He’s certainly consistent. But it’s weird to take the threat of ending the filibuster off the table at the very moment that he and his centrist partner on the left, Kyrsten Sinema, have taken to openly begging Republicans to compromise with them on this bill:

We implore you to show that you’re taking the insurrection seriously enough to join us in investigating it. And if you refuse, then … nothing will happen. I’m not sure a pitch like that is going to make recalcitrant Republicans think twice.

But there *is* some movement towards bipartisanship on this matter from the usual GOP suspects:

All four voted to convict Trump at his trial in February. Ben Sasse and Bill Cassidy, two more who voted to convict, are presumably also in play. But Richard Burr, the seventh vote for conviction, said earlier that he believes an investigation should be handled by standing committees, not a special commission. That leaves Schumer with six GOP votes potentially and needing four more to beat a filibuster.

Where do those other four come from?

Collins is trying to get Dems to agree to a year-end deadline for the commission (which, er, the bill already contains) as well as granting each commissioner the power to hire their own staff without the approval of the commission chair. Given what Democrats have already given up — the panel would be evenly divided by party instead of tilted towards Dems and at least one Republican would need to support any subpoena for it to issue — those seem like minor changes. If Schumer and Pelosi give in, that might get them the six Republicans who voted to convict minus Burr. But again: Who are the other four? Who wants to “betray” Trump by supporting a commission now after staying in his good graces in February by voting to acquit?

Republican rationales for opposing the bill have shifted throughout the legislative process. There’s no reason to think they wouldn’t shift again to justify voting no notwithstanding Collins’s changes.

The tricky part of this for Republicans is keeping in mind that there’ll be an investigation one way or another. It’s purely a matter of whether they want it to happen via a bipartisan commission or via a Democrat-led select committee in the House. Each has its advantages and disadvantages for the party, as this Just Security piece from yesterday notes. Republicans would have more influence over a commission but its findings would be harder to demagogue than those of a select committee and the subpoenas it issues would be harder to fight politically. Democrats would have more influence over a select committee but its findings would be dismissed as partisan nonsense and its subpoenas would be tied up in court forever. A select committee would be a decent alternative, though, argues Just Security:

Third, congressional committees have special access privileges to Trump administration documents, including White House documents, that have been sent to the National Archives. Under the Presidential Records Act (PRA), most Trump White House documents are effectively under seal for several years. But Congress can break that seal right away based on a low showing of need. What happened in the White House during the insurrection remains one of the biggest gaps in our understanding. And unlike the subpoena fights during the Trump administration, now former President Trump does not control what happens to his documents. He has lost what William Rehnquist, as head of the Office of Legal Counsel, called a “head start” in oversight disputes. Instead of Congress needing to sue to enforce a subpoena, President Trump would need to sue to block releases. President Biden would also have final say over executive privilege claims. (The PRA access is critical for any investigation. If a commission is created legislatively, the bill should give it access to Trump-era documents.)

There’s no universe where an investigation doesn’t happen. The GOP just needs to decide what sort of body ends up conducting it.

David Strom 6:41 PM on September 26, 2022