Two days ago, Senator Joe Manchin published a revealing op-ed in the Washington Post, explaining why he would never vote to weaken or eliminate the filibuster and why he does not favor additional use of hte reconciliation process to pass legislation with a simple majority vote. The piece fails as a work either of history of of constitutional theory. Manchin begins by pointing out correctly that the Founders created the Senate to protect the rights of small states like West Virginia, to make sure that they "would always have a seat at the table." "The filibuster," he continues, "is a critical tool to protecting that input and our democratic form of government." That makes no sense. The equal representation in the Senate alone gives small states ample protection against majority rule. The smallest 26 states send a majority of the Senate today, even though they send only 84 out of the 435 members of the House of Representatives to Washington. But with the filibuster, the smallest 21 states can block any legislation--and they send only 57 members of the House to Washington. In the very first Congress, the seven smallest states (out of thirteen total) sent 22 out of 65 total seats to Washington--a full third of the total. There is no evidence that the Founders had any intention of giving a legislative veto to as little as 20 per cent of the population, must less 13%. In addition, the Constitution, by requiring a 2/3 vote for the ratification of treaties in the Senate, clearly indicates that a simple majority should suffice for any other legislative purpose. Manchin clearly wants, and intends, to paralyze our democracy to an extent that the Founders never contemplated.
Manchin, however, is likely to make his position stick, with enormous consequences for the country. As his article goes on, he suggests that no major legislation--no "sweeping, partisan legislation"--should pass without substantial support from both parties. I can't help but wonder why he didn't write a comparable op-ed in 2017, when he and every other Democrat opposed the enormous Republican tax cut that passed on a 51-48 party line vote under the reconciliation process. That, however, is a secondary issue. What Manchin is arguing, in effect, is that the nation is so evenly divided that we must emasculate the federal government and make it impossible for it to take effective, positive action to resolve our problems. And given the extraordinary power that he and Senator Kyrsten Sinema of Arizona hold in the 50-50 Senate, there is an excellent chance that he will get his way.
Thanks to the research I've been doing over the last 18 months or so, I can say that the situation which Manchin as frankly advocated, and in which we have been stuck since 2011 in any case, has a great deal in common with US history roughly from 1865 to 1896, in the wake of the Civil War. The country was equally evenly divided between the victorious Republicans and the Democrats, who included all the ex-Confederates and who had opposed some of the key results of the war, such as the enfranchisement of former slaves, even if they had supported war for the Union. In the immediate wake of the war, the Republicans didn't have to cope with Democratic filibusters, but they faced a hostile President, the Democrat Andrew Johnson, whom they had picked as Vice Presidential candidate in 1864 to to broaden their support. They passed the key Reconstruction acts that allowed them to set up Republican governments in the southern states only after securing veto-proof majorities in the 1866 Congressional elections, and by keeping the South out of Congress until those governments had been established. But because the Republican governments in most of the southern states did not enjoy majority voter support, they lasted only a few years. Meanwhile, the panic of 1873 allowed the Democrats to regain control of the House of Representatives in 1874. The Democrats actually won a narrow victory in the disputed 1876 election, but Rutherford B. Hayes, the Republican candidate, took office as part of a compromise that ended Reconstruction in the last three states where it still continued, as well. The partisanship of the era had led to many of the tactics we have become familiar with today, including fiddling with the number of Supreme Court justices to secure favorable outcomes; suppressing hostile voters (ex-Confederates in the early years of Reconstruction, black voters after that); and threatening to shut down the government to get Congress's way on particular issues, as the Democrats did under Hayes.
Then as now, the Republicans were the preferred party of big business, although the Democrats were hardly economic revolutionaries. The tariff was the main source of revenue, and the Republicans kept it high throughout this period. It was their main issue the way low taxes are today. The rival administrations of Grover Cleveland (1885-89, 1893-97) and Benjamin Harrison fought a tug-of-war over the tariff comparable to that between Bush II, Obama, Trump, and now Biden over taxes, abortion rights, and many other issues. Cleveland definitely came out for much lower tariffs late in his first term, but could not get them through Congress. Harrison promptly raised them again in 1890, and used the money to make a huge giveaway to a key Republican constituency, Civil War veterans. That proved unpopular, and the Democrats (as in 2006 and 2018) won a sweeping victory in the Congressional elections of 1890, and returned Cleveland to power two years later. Then the panic of 1893 and the subsequent Depression led to a Republican sweep in 1894. The radical, free silver wing of the Democratic Party selected William Jennings Bryan--only 36 years old, the AOC of his time--as its candidate in 1896. William McKinley defeated him soundly, beginning 16 years of continuous Republican rule, and even higher tariffs. A new era did not begin until 1912, when, significantly, new progressive ideas had become very strong in both parties and had adherents in all sections.
President Biden has already put a transformative agenda on the table. I cannot rule out the possibility that he will work a miracle and pass most of it, but the odds seem to me against it. If he cannot--and especially if the Democrats cannot maintain their razor-thin majority in the House in 2022--that will finally confirm the view that I first posited here in July 2010, when I realized that the last Democratic president was not going to be transformative. That would tend to confirm that the truly transformative moment in American politics was the Bush II administration and Obama's first term.. It would even suggest that our crisis--in the sense of a turning point in American politics--has been over for some time.