America is difficult to govern by design – that was the point. The constitutional drafters wanted to minimize any chance of tyranny, even if it was carried out by the majority. This does not mean that they deliberately wanted paralysis – a misreading that is often advanced. Even if it was their purpose, which it was not, they would have been wrong. No country can remain a country for long if it ceases to be governable.
To paraphrase Henry David Thoreau, government is the best that governs well – not the least. Thursday, January 13, 2022 should be remembered as a milestone on America’s journey to ungovernability. It was supposed to be the day President Joe Biden would try to convince the two faltering Democratic attitudes – Senators Joe Manchin and Kyrsten Sinema – of the need to dilute the filibuster to carry out suffrage reform. An hour before Biden took the ride down Pennsylvania Avenue, Sinema shot down the hope of passing any bill by saying she would refuse to change the filibuster. Manchin had already made his goal clear earlier this week when he said he would not sacrifice 232 years of political tradition to pass the bills. A few hours later, the Supreme Court voted 6-3 to scrap Biden’s workplace vaccine mandate as unconstitutional. It’s been a great day for Covid – and polio for that matter. It was also a bonanza for constitutional dupes and quacks.
I have no idea if Manchin or Cinema believe their own arguments about the filibuster or are deliberately misleading. Either way, they are wrong. The current filibuster dates back to 1975 when the Senate changed the rules to require three-fifths of the body to end debate, replacing the previous two-thirds “present and vote” rule. As Capitol Hill historian Norm Ornstein writes, ‘The’ present and voting ‘standard, by requiring senators to show up, places the burden on the minority; the absolute standard has completely shifted the burden to the majority. ” Even then, the more difficult version was only rarely used until the Clinton era, when today’s more obstructionist politics took hold.
Prior to 1975, the blocking device was only sparingly and almost always deployed by southern senators to block civil rights measures – both before and after the Civil War. Even then, the “present and voting” rule meant that there were usually ways to circumvent the blocking minority. One of these was to exhaust the obstructors by forcing them to be present at all times. The only areas where the constitution requires the Senate’s majorities are to ratify treaties, prosecute someone, or amend the constitution. All the others were ordinary majority votes. Manchin and Cinema hide behind what I call “bipartisan talk” – folk historical historicism that deals with their audience’s ignorance. Unless they can get a quick course in history (and agree with it), most of Biden’s domestic agenda is dead.
The ruling of the Supreme Court was even more ominous. Six judges, five of them appointed by Republican presidents who did not win the popular vote, two of whom were confirmed in a process that transmitted many more years of Senate traditions, have the elected US president’s main instrument to end a pandemic fight what claimed nearly 900,000 American lives. According to the six judges, Biden was wrong to treat the virus as a safety issue in the workplace. Covid-19 was, in fact, a public health issue. On that drag of semantics, the judges not only deactivated the federal government’s ability to fight the pandemic, but the court’s own precedent of upholding vaccine mandates (dating from its 7-2 polio ruling more than a century ago) overthrown. No amount of rent of clothes and gnashing of teeth will push the Supreme Court to change its mind. They were appointed for life and therefore immune to politics.
The ruling is “ominous” because the large margin to scrap the vaccine mandate indicates that conservative judges will pay little attention to public opinion about Roe vs Wade, which I wrote about in a recent Swamp Note, or about the Biden Administration’s treatment of carbon dioxide as a pollutant under Environmental Protection Agency. Both rulings are expected in the coming months. Recent courts have destroyed the Voting Rights Act, significantly expanded the gun rights interpretation of the Second Amendment, and given big money free rein in politics. Now we can expect assaults on the federal government’s ability to tackle global warming and on women’s right to choose.
It all flies against fairly established majority of American public opinion and in the face of elected Democratic majorities in America’s two other branches of government. If a Democratic president can not govern now, when would it be? Rana, maybe you have a better answer to that question than I do. In his statement this week, Manchin said the filibuster “makes us different from anywhere else in the world”. He was right. He should have added it also makes America different from its own past. “Bipartisanity” as an excuse for lack of action should never be entertained. America’s 15th Amendment, which gave exempt slaves the right to vote, was implemented along biased lines.
Speaking of history, my column this week look at echoes of the 1970s in today’s America – rising inflation and murder rates, political dysfunction and Russian military drone. Despite what I wrote in today’s note, Biden must beware of Jimmy Carter’s trap of talking about American malaise.
My colleague Simon Kuper has a wonderful piece on the toll of anti-vaxxers on society and their own families. Avoid some of the rabid comments below. I try to stay healthy by turning a blind eye.
Also read Joe Nye in Project Syndicate why gentle power still matters – something the Chinese have yet to master. The secret sauce of American soft power is that it does not rely on American politics to be effective, which, all things considered, is just as good. . .
To conclude a grim note on a light note, feel free to check out my colleagues’ “Places of joy” in the cities where they are based in this FT globetrotter’s piece. Please do not take my choice too seriously – Washington’s Café Milano, which was meant to be a bit of a tongue in cheek. In retrospect, I should have chosen Rock Creek Park.
Rana Foroohar responds
Ed, I wonder if America will just become more governing, whether by Democrats or Republicans, when the Boomers are gone and a new generation of Americans is in power. Biden was referred to by his own party as a “transitional figure”, and this is certainly true. He came of age in a totally different political era.
The problem is that the people who could possibly succeed him, for example a Pete Buttigieg or a Stacey Abrams, seem a little too young to take up the presidential mantle at this stage. It’s like there’s a generation missing in Washington. I often think of our own profession of journalism, and how it was disrupted in the 1990s when the internet came along. Suddenly there were all these very smart, seasoned people in their 50s and 60s who could pull off polished, stylish prose, and lots of very talented young journalists who could work across mediums but no smart, working 30s and 40s to do the senior editing do. They all moved to LA or San Francisco to work in the New Economy.
It feels that way in politics now. There is no remedy, in any sense. I think Democrats might be able to find more unity within their own party once we abandon the old division between those who focus on class versus race – my sense is that among my daughters’ generation the two things are thought of in tandem, and not as polarizing as they are among older people. I also think it would help if the party as a whole would stop sending so many messages to people like Joe Manchin, which would be easier once the transition to clean energy is over. Republicans have bigger problems, I think, because it’s like they’re not just missing a generation, but a whole definition of what it means to be considerate and conservative. I wonder if people like Ross Douthat show the way – as you will see here, he is much more optimistic about America’s future.
My last thought here – I honestly think we might be able to look back on Covid in a few years, after inflation has stabilized (which I think it will eventually go as we move to an economy where production and consumption are more balanced), to a new and more regionalized world taking shape, and after the new geography of work and life has been established and says, hey, maybe things are not so bad. A lot of seed is currently being planted politically (Biden is actually doing a lot with executive orders, as I will mention in my next column), and it takes time for them to realize.
But I’m getting ready for the post that says what Panglossian sounds like.
And now a word from our Swampians. . .
In response to ‘What do I think for 2022‘:
“Ed referred to the American voters’ lack of interest in January 6; the French Revolution also happened because many middle and upper middle class people lost respect for the king, to Versailles accessories and mysterious rules that were totally separated from their daily lives and interests. In 1848, Tocqueville summed up why the July monarchy of King Louis Philippe fell into a trap he had not seen. While parliament discussed an increase in the ‘lists’ generously, the money voted for the king every year, they did not notice that poverty was spreading fast. . . ” – Francis Ghiles, Barcelona, Spain