How Joe Manchin Can Fix the Filibuster 1

It’s easy to sympathize with the liberal desire to bury the Senate filibuster forever. The 60-vote threshold for Senate legislation is a choke point in a political system defined by gridlock, sclerosis and futility. It provides an excuse for policy abdication, encouraging the legislative branch to cede authority to the presidency and the courts, and the Republican Party to decline to have a policy agenda at all. Its history is checkered, its pervasive use is a novelty of polarization, and its eventual disappearance seems inevitable — so why not adapt now?

At the same time, it’s also easy to see why Joe Manchin, a Democratic senator from a conservative state, might have some doubts about his party’s confident filibuster-busting ambitions.

Listen to Manchin’s fellow Democrats talk about their political position and the constitutional structures impeding them, and you would be forgiven for thinking that they have been winning commanding majorities for years, of the sort enjoyed by Franklin Roosevelt or Lyndon Johnson, while being thwarted again and again by a much smaller reactionary faction.

But in reality the Democrats have a relatively thin majority, opposed by a very large minority. The national presidential vote in 2020 was roughly 51 percent to 47 percent; the national vote for the House of Representatives was about 51 to 48 percent. These are clear victories, but not the margins of a transformative majority.

Four years earlier, in the 2016 election that Democrats invoke as a case study in the thwarting of the public will, Republicans actually won the popular vote for the House, and in the presidential election the combined vote for Donald Trump and the Libertarian Party edged out Hillary Clinton’s support, even with Jill Stein’s votes thrown in. Trump was certainly a countermajoritarian president, but there was no clear mandate for the Democrats in ’16, let alone a sweeping one.

Combine this reality with the anxiety that’s radicalizing conservatives, the sense that America’s nonpolitical institutions are increasingly arrayed against them, and you can make sense of Manchin’s filibuster stance. The 60-vote threshold is a curb on his own party’s overstated sense of its own popularity; it protects Democrats from acting more aggressively than their narrow majorities would justify. It is also a curb against further conservative radicalization, reassuring the right that even if liberalism controls the commanding heights of American culture, it can’t legislate all its preferences without buy-in from the G.O.P.

Since those radicalizing conservatives include many of Manchin’s own constituents, you can see how the two ideas inform his own self-understanding. Maybe abolishing the filibuster would eventually lead to Democratic senators from Puerto Rico or Washington, D.C. But in the short term it might make the prospects of the few remaining red-state Democratic senators even dimmer than today.

But there is a half measure available that Manchin should consider as an alternative to abolition: weakening the filibuster by taking its threshold to 55 votes instead of 60.

As a practical matter a 55-vote threshold puts a lot of things that the West Virginia senator favors more in play — from the gun-control measure he hashed out with Pat Toomey in the Obama years to infrastructure spending and the Jan. 6 commission in this presidency — while still throwing up a strong impediment to ideological legislating. It gives the kind of Republicans he’s most inclined to work with more power in the Senate, without creating a situation where activists can expect moderate Democrats to constantly join 51-49 votes. It adapts the filibuster in a reasonable way to our age of heightened polarization, maintaining protections for the minority, while making some deals that used to be possible available again.

Then more broadly, beyond just the Senate rules, the idea of 55 percent as a threshold for dramatic reforms sets a plausible target for both parties to hit, as they try to break out of gridlock and create more durable majorities.

Under polarized conditions the days of 60-percent landslides aren’t coming back, nor (save under emergency conditions) are the days of sweeping, 70-Senate-votes bipartisanship. But expecting our political parties to legislate like New Deal or Great Society Democrats with margins like John F. Kennedy in 1960 doesn’t seem like the wisest idea either.

Maybe there’s a middle ground. In a country so large, diverse and deeply divided, a system that encourages the two parties to aim for 55 percent instead of 51 percent, whether in the Senate or on the presidential hustings, might work against polarization and toward consensus without expecting our divisions to magically disappear.

That larger escape from 50-50 politics isn’t within Joe Manchin’s power to create. But in mending rather than ending the filibuster, he might get us a little closer, pleasing neither party but offering both new opportunities to actually govern once again.

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