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robert byrd
Manchin's Filibuster Defense Betrays the Senate Legacy He Claims to Protect
The senator from West Virginia says he sees himself as a defender of the late Sen. Robert C. Byrd. If we review Byrd's legacy, however, it's clear Manchin is not doing that.
Apr 12, 2021
Joe Manchin of West Virginia is the Democrats' pivotal 50th vote in the Senate--the key to passing bills with a simple majority. (With the tiebreaking vote of Vice President Kamala Harris.) He is also pivotal for changing the filibuster rule.
His vote is pursued as decisive for President Joe Biden's infrastructure proposals and for passing S. 1, the For the People Act, to protect the right to vote and repair the corrupting campaign finance system.
Manchin's positions here go against a legacy the senator has long insisted he is committed to protecting.
So his party is forced to take notice when Manchin declares, as he did in a Washington Post opinion piece last week, "There is no circumstance in which I will vote to eliminate or weaken the filibuster." Manchin also challenges the use of reconciliation as not good for the future of the country, and he seeks a bipartisan solution to the democracy reforms in S. 1.
Yet Manchin's positions here go against a legacy he has long insisted he is committed to protecting.
When Manchin, then the governor of West Virginia, was first elected to the Senate in 2010, he took the seat of a historic figure, the late Majority Leader Robert C. Byrd, longest-serving senator in U.S. history, who was known for his mastery of the Senate and its rules. Manchin, in fact, has emphasized that he sees himself as "a person that's going to defend the legacy of Robert C. Byrd."
Manchin, in fact, has emphasized that he sees himself as "a person that's going to defend the legacy of Robert C. Byrd."
If we review Byrd's legacy, however, it is that clear Manchin is not doing that.
Byrd did not believe he was weakening the filibuster rule when he engineered successful revisions to it. He did not believe the reconciliation process was bad for the country when he played a key role in creating it. He fought hard for his campaign finance reform bill--and never believed that Sen. Mitch McConnell, R-Ky., and his Republican colleagues were interested in reaching a bipartisan solution.
We can see Manchin's conflict with Byrd's legacy in three specific areas.
The filibuster
Byrd's record demonstrates that he recognized that the Senate's filibuster rule--requiring that two-thirds of senators present vote to end filibusters--was not sacrosanct. He supported changing the rule when it had been abused or when the times demanded it.
The master of Senate rules said on various occasions that this would require only a simple majority vote. Any time 51 senators are determined to change the rule, Byrd said during a 1975 Senate floor debate, "that rule will be changed."
Byrd twice played a leading role in revising the filibuster rule in the 1970s: first, cutting to 60 the number of votes needed to invoke cloture, which ends a filibuster, and second, ending post-cloture filibusters, which took place on bills after cloture had been invoked to end the filibusters. (In 1985, he tried a third time to change the rule from 60 votes to three-fifths of those present, but he was unsuccessful.)
Byrd obviously believed revising the filibuster rule when abuses or circumstances called for it was good for the country and for West Virginia, the state he represented and loved.
Byrd obviously believed that revising the filibuster rule when abuses or circumstances called for it was good for the country and for West Virginia.
During the debate on Byrd's second successful change of the rule, he again said this required only a simple majority. As Byrd explained, "certain rules that were necessary in the 19th century and in the early decades of this century must be changed to reflect changed circumstances."
Byrd also supported a number of exemptions to the filibuster rule. He played the crucial role in the 1974 creation of the budget reconciliation process--which Manchin criticized in his opinion piece--and which the Senate just used to pass the Covid 19 relief bill and could use again for the coming infrastructure package.
Byrd also supported exemptions to the filibuster rule in voting to create fast-track trade authority and the defense base closing process.
In fact, it turns out that Congress created 161 exemptions to the filibuster rule in statutes enacted from 1969 to 2014, according to one study.
Campaign finance reform
Byrd deeply believed that the campaign finance system in Washington was doing grave damage to the country and the Senate, the institution he revered.
In 1987 and 1988, Byrd, as majority leader, fought a hard battle to enact his bill to create a public financing system for Senate elections, similar to the successful presidential system created in 1974.
Byrd decried the "money chase" of senators. "We spend countless hours," he said, "chasing campaign funds all around the country--to the detriment of our duties and our constituents."
Byrd held a record eight cloture votes over nine months to break the Republican filibuster against his bill. The GOP was not interested in compromise, though. As Byrd said during debate, "the problem is that the distinguished senator from Kentucky [Mr. McConnell], and I say this with all due respect, insists that we can compromise if the compromise is on his terms."
Senate Republicans succeeded in killing Byrd's campaign finance reform bill--using the filibuster.
Byrd made it clear just how important he believed campaign finance reform was:
"The integrity of this institution is at stake. The integrity of the electoral and political process is at stake. The integrity of representative democracy is at stake."
Manchin and S. 1
S. 1 (the For the People Act), now pending in the Senate, includes a small-donor, public matching funds proposal similar to Byrd's reform legislation.
Like his predecessor, Manchin has expressed strong concerns about "the disturbing role money plays in our democracy." In fact, when Manchin was governor of West Virginia, he proposed and signedlegislation to create a public financing system for state Supreme Court elections.
Manchin echoed Byrd when he recently endorsed campaign finance reform, saying, "More and more lawmakers spend their time dialing for dollars, instead of legislating for their constituents," and he explained, "That is why I have and will continually support changing our campaign finance rules."
However, on the day Manchin's op-ed called for bipartisan solutions on voting rights and campaign finance reform, The New York Times described McConnell--the country's longtime leading opponent of campaign finance reforms--as the "No. 1 foe" of S. 1 and noted that he "seems to enjoy the full support of his Republican colleagues."
Manchin has created a classic Catch-22 situation. He says he wants a bipartisan solution to voting rights and campaign finance legislation. Yet there is no basis to believe that any Republican senator, let alone the 10 needed to break a filibuster, will support a bipartisan solution to real campaign finance and voting rights reforms. Led by McConnell, the GOP wants to kill the reform bill--just as it killed Byrd's reform bill in 1988.
McConnell is a serial, record-setting abuser of the filibuster. He used it to block major parts of President Barack Obama's agenda, and he now appears headed down the same path with Biden's agenda. Yet McConnell had no problem being the last senator to orchestrate a big exemption to the filibuster rule--which was used to confirm three Supreme Court justices by majority votes.
If Manchin wants to honor Byrd's legacy, he should complete the legendary senator's mission for campaign finance reform and support revising the filibuster rule, greatly abused in recent years, to pass S. 1. Manchin also needs to adopt Byrd's clear-eyed understanding that Senate Republicans have no interest in compromising to create real campaign finance reform. So he needs to join the 49 co-sponsors of the For the People Act and support an exemption to the filibuster rule so S. 1, vital to repairing our democracy, can become law.
The alternative is to join with McConnell and the GOP as they use a filibuster to kill S. 1--just as the GOP killed Byrd's campaign finance reform bill. This result would protect Republican efforts across the country to suppress voting, particularly by people of color, allow the corrupting campaign finance system to grow even worse and permit extreme partisan gerrymandering in many states.
Manchin's choice here is not about the interests of Republicans or Democrats in Congress. It is about the interests of the American people--in a fair and honest system of representative government.
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Book Excerpt: The Assault on Reason
Not long before our nation launched the invasion of Iraq, our longest-serving Senator, Robert Byrd of West Virginia, stood on the Senate floor and said: "This chamber is, for the most part, silent--ominously, dreadfully silent. There is no debate, no discussion, no attempt to lay out for the nation the pros and cons of this particular war. There is nothing. We stand passively mute in the United States Senate."
Why was the Senate silent?
May 17, 2007
Not long before our nation launched the invasion of Iraq, our longest-serving Senator, Robert Byrd of West Virginia, stood on the Senate floor and said: "This chamber is, for the most part, silent--ominously, dreadfully silent. There is no debate, no discussion, no attempt to lay out for the nation the pros and cons of this particular war. There is nothing. We stand passively mute in the United States Senate."
Why was the Senate silent?
In describing the empty chamber the way he did, Byrd invited a specific version of the same general question millions of us have been asking: "Why do reason, logic and truth seem to play a sharply diminished role in the way America now makes important decisions?" The persistent and sustained reliance on falsehoods as the basis of policy, even in the face of massive and well-understood evidence to the contrary, seems to many Americans to have reached levels that were previously unimaginable.
A large and growing number of Americans are asking out loud: "What has happened to our country?" People are trying to figure out what has gone wrong in our democracy, and how we can fix it.
To take another example, for the first time in American history, the Executive Branch of our government has not only condoned but actively promoted the treatment of captives in wartime that clearly involves torture, thus overturning a prohibition established by General George Washington during the Revolutionary War.
It is too easy--and too partisan--to simply place the blame on the policies of President George W. Bush. We are all responsible for the decisions our country makes. We have a Congress. We have an independent judiciary. We have checks and balances. We are a nation of laws. We have free speech. We have a free press. Have they all failed us? Why has America's public discourse become less focused and clear, less reasoned? Faith in the power of reason--the belief that free citizens can govern themselves wisely and fairly by resorting to logical debate on the basis of the best evidence available, instead of raw power--remains the central premise of American democracy. This premise is now under assault.
American democracy is now in danger--not from any one set of ideas, but from unprecedented changes in the environment within which ideas either live and spread, or wither and die. I do not mean the physical environment; I mean what is called the public sphere, or the marketplace of ideas.
It is simply no longer possible to ignore the strangeness of our public discourse. I know I am not alone in feeling that something has gone fundamentally wrong. In 2001, I had hoped it was an aberration when polls showed that three-quarters of Americans believed that Saddam Hussein was responsible for attacking us on Sept. 11. More than five years later, however, nearly half of the American public still believes Saddam was connected to the attack.
At first I thought the exhaustive, nonstop coverage of the O.J. Simpson trial was just an unfortunate excess--an unwelcome departure from the normal good sense and judgment of our television news media. Now we know that it was merely an early example of a new pattern of serial obsessions that periodically take over the airwaves for weeks at a time: the Michael Jackson trial and the Robert Blake trial, the Laci Peterson tragedy and the Chandra Levy tragedy, Britney and KFed, Lindsay and Paris and Nicole.
While American television watchers were collectively devoting 100 million hours of their lives each week to these and other similar stories, our nation was in the process of more quietly making what future historians will certainly describe as a series of catastrophically mistaken decisions on issues of war and peace, the global climate and human survival, freedom and barbarity, justice and fairness. For example, hardly anyone now disagrees that the choice to invade Iraq was a grievous mistake. Yet, incredibly, all of the evidence and arguments necessary to have made the right decision were available at the time and in hindsight are glaringly obvious.
Those of us who have served in the U.S. Senate and watched it change over time could volunteer a response to Senator Byrd's incisive description of the Senate prior to the invasion: The chamber was empty because the Senators were somewhere else. Many of them were at fund-raising events they now feel compelled to attend almost constantly in order to collect money--much of it from special interests--to buy 30-second TV commercials for their next re-election campaign. The Senate was silent because Senators don't feel that what they say on the floor of the Senate really matters that much anymore--not to the other Senators, who are almost never present when their colleagues speak, and certainly not to the voters, because the news media seldom report on Senate speeches anymore.
Our Founders' faith in the viability of representative democracy rested on their trust in the wisdom of a well-informed citizenry, their ingenious design for checks and balances, and their belief that the rule of reason is the natural sovereign of a free people. The Founders took great care to protect the openness of the marketplace of ideas so that knowledge could flow freely. Thus they not only protected freedom of assembly, they made a special point--in the First Amendment--of protecting the freedom of the printing press. And yet today, almost 45 years have passed since the majority of Americans received their news and information from the printed word. Newspapers are hemorrhaging readers. Reading itself is in decline. The Republic of Letters has been invaded and occupied by the empire of television.
Radio, the Internet, movies, cell phones, iPods, computers, instant messaging, video games and personal digital assistants all now vie for our attention--but it is television that still dominates the flow of information. According to an authoritative global study, Americans now watch television an average of 4 hours and 35 minutes every day--90 minutes more than the world average. When you assume eight hours of work a day, six to eight hours of sleep and a couple of hours to bathe, dress, eat and commute, that is almost three-quarters of all the discretionary time the average American has.
In the world of television, the massive flows of information are largely in only one direction, which makes it virtually impossible for individuals to take part in what passes for a national conversation. Individuals receive, but they cannot send. They hear, but they do not speak. The "well-informed citizenry" is in danger of becoming the "well-amused audience." Moreover, the high capital investment required for the ownership and operation of a television station and the centralized nature of broadcast, cable and satellite networks have led to the increasing concentration of ownership by an ever smaller number of larger corporations that now effectively control the majority of television programming in America.
In practice, what television's dominance has come to mean is that the inherent value of political propositions put forward by candidates is now largely irrelevant compared with the image-based ad campaigns they use to shape the perceptions of voters. The high cost of these commercials has radically increased the role of money in politics--and the influence of those who contribute it. That is why campaign finance reform, however well drafted, often misses the main point: so long as the dominant means of engaging in political dialogue is through purchasing expensive television advertising, money will continue in one way or another to dominate American politics. And as a result, ideas will continue to play a diminished role. That is also why the House and Senate campaign committees in both parties now search for candidates who are multimillionaires and can buy the ads with their own personal resources.
When I first ran for Congress in 1976, I never took a poll during the entire campaign. Eight years later, however, when I ran statewide for the U.S. Senate, I did take polls and like most statewide candidates relied more heavily on electronic advertising to deliver my message. I vividly remember a turning point in that Senate campaign when my opponent, a fine public servant named Victor Ashe who has since become a close friend, was narrowing the lead I had in the polls. After a detailed review of all the polling information and careful testing of potential TV commercials, the anticipated response from my opponent's campaign and the planned response to the response, my advisers made a recommendation and prediction that surprised me with its specificity: "If you run this ad at this many 'points' [a measure of the size of the advertising buy], and if Ashe responds as we anticipate, and then we purchase this many points to air our response to his response, the net result after three weeks will be an increase of 8.5% in your lead in the polls."
I authorized the plan and was astonished when three weeks later my lead had increased by exactly 8.5%. Though pleased, of course, for my own campaign, I had a sense of foreboding for what this revealed about our democracy. Clearly, at least to some degree, the "consent of the governed" was becoming a commodity to be purchased by the highest bidder. To the extent that money and the clever use of electronic mass media could be used to manipulate the outcome of elections, the role of reason began to diminish.
As a college student, I wrote my senior thesis on the impact of television on the balance of power among the three branches of government. In the study, I pointed out the growing importance of visual rhetoric and body language over logic and reason. There are countless examples of this, but perhaps understandably, the first one that comes to mind is from the 2000 campaign, long before the Supreme Court decision and the hanging chads, when the controversy over my sighs in the first debate with George W. Bush created an impression on television that for many viewers outweighed whatever positive benefits I might have otherwise gained in the verbal combat of ideas and substance. A lot of good that senior thesis did me.
The potential for manipulating mass opinions and feelings initially discovered by commercial advertisers is now being even more aggressively exploited by a new generation of media Machiavellis. The combination of ever more sophisticated public opinion sampling techniques and the increasing use of powerful computers to parse and subdivide the American people according to "psychographic" categories that identify their susceptibility to individually tailored appeals has further magnified the power of propagandistic electronic messaging that has created a harsh new reality for the functioning of our democracy.
As a result, our democracy is in danger of being hollowed out. In order to reclaim our birthright, we Americans must resolve to repair the systemic decay of the public forum. We must create new ways to engage in a genuine and not manipulative conversation about our future. We must stop tolerating the rejection and distortion of science. We must insist on an end to the cynical use of pseudo-studies known to be false for the purpose of intentionally clouding the public's ability to discern the truth. Americans in both parties should insist on the re-establishment of respect for the rule of reason.
And what if an individual citizen or group of citizens wants to enter the public debate by expressing their views on television? Since they cannot simply join the conversation, some of them have resorted to raising money in order to buy 30 seconds in which to express their opinion. But too often they are not allowed to do even that. MoveOn.org tried to buy an ad for the 2004 Super Bowl broadcast to express opposition to Bush's economic policy, which was then being debated by Congress. CBS told MoveOn that "issue advocacy" was not permissible. Then, CBS, having refused the MoveOn ad, began running advertisements by the White House in favor of the president's controversial proposal. So MoveOn complained, and the White House ad was temporarily removed. By temporarily, I mean it was removed until the White House complained, and CBS immediately put the ad back on, yet still refused to present the MoveOn ad.
To understand the final reason why the news marketplace of ideas dominated by television is so different from the one that emerged in the world dominated by the printing press, it is important to distinguish the quality of vividness experienced by television viewers from the "vividness" experienced by readers. Marshall McLuhan's description of television as a "cool" medium--as opposed to the "hot" medium of print--was hard for me to understand when I read it 40 years ago, because the source of "heat" in his metaphor is the mental work required in the alchemy of reading. But McLuhan was almost alone in recognizing that the passivity associated with watching television is at the expense of activity in parts of the brain associated with abstract thought, logic, and the reasoning process. Any new dominant communications medium leads to a new information ecology in society that inevitably changes the way ideas, feelings, wealth, power and influence are distributed and the way collective decisions are made.
As a young lawyer giving his first significant public speech at the age of 28, Abraham Lincoln warned that a persistent period of dysfunction and unresponsiveness by government could alienate the American people and that "the strongest bulwark of any government, and particularly of those constituted like ours, may effectively be broken down and destroyed--I mean the attachment of the people." Many Americans now feel that our government is unresponsive and that no one in power listens to or cares what they think. They feel disconnected from democracy. They feel that one vote makes no difference, and that they, as individuals, have no practical means of participating in America's self-government. Unfortunately, they are not entirely wrong. Voters are often viewed mainly as targets for easy manipulation by those seeking their "consent" to exercise power. By using focus groups and elaborate polling techniques, those who design these messages are able to derive the only information they're interested in receiving from citizens--feedback useful in fine-tuning their efforts at manipulation. Over time, the lack of authenticity becomes obvious and takes its toll in the form of cynicism and alienation. And the more Americans disconnect from the democratic process, the less legitimate it becomes.
Many young Americans now seem to feel that the jury is out on whether American democracy actually works or not. We have created a wealthy society with tens of millions of talented, resourceful individuals who play virtually no role whatsoever as citizens. Bringing these people in--with their networks of influence, their knowledge, and their resources--is the key to creating the capacity for shared intelligence that we need to solve our problems.
Unfortunately, the legacy of the 20th century's ideologically driven bloodbaths has included a new cynicism about reason itself--because reason was so easily used by propagandists to disguise their impulse to power by cloaking it in clever and seductive intellectual formulations. When people don't have an opportunity to interact on equal terms and test the validity of what they're being "taught" in the light of their own experience and robust, shared dialogue, they naturally begin to resist the assumption that the experts know best.
So the remedy for what ails our democracy is not simply better education (as important as that is) or civic education (as important as that can be), but the re-establishment of a genuine democratic discourse in which individuals can participate in a meaningful way--a conversation of democracy in which meritorious ideas and opinions from individuals do, in fact, evoke a meaningful response.
Fortunately, the Internet has the potential to revitalize the role played by the people in our constitutional framework. It has extremely low entry barriers for individuals. It is the most interactive medium in history and the one with the greatest potential for connecting individuals to one another and to a universe of knowledge. It's a platform for pursuing the truth, and the decentralized creation and distribution of ideas, in the same way that markets are a decentralized mechanism for the creation and distribution of goods and services. It's a platform, in other words, for reason. But the Internet must be developed and protected, in the same way we develop and protect markets--through the establishment of fair rules of engagement and the exercise of the rule of law. The same ferocity that our Founders devoted to protect the freedom and independence of the press is now appropriate for our defense of the freedom of the Internet. The stakes are the same: the survival of our Republic. We must ensure that the Internet remains open and accessible to all citizens without any limitation on the ability of individuals to choose the content they wish regardless of the Internet service provider they use to connect to the Web. We cannot take this future for granted. We must be prepared to fight for it, because of the threat of corporate consolidation and control over the Internet marketplace of ideas.
The danger arises because there is, in most markets, a very small number of broadband network operators. These operators have the structural capacity to determine the way in which information is transmitted over the Internet and the speed with which it is delivered. And the present Internet network operators--principally large telephone and cable companies--have an economic incentive to extend their control over the physical infrastructure of the network to leverage control of Internet content. If they went about it in the wrong way, these companies could institute changes that have the effect of limiting the free flow of information over the Internet in a number of troubling ways.
The democratization of knowledge by the print medium brought the Enlightenment. Now, broadband interconnection is supporting decentralized processes that reinvigorate democracy. We can see it happening before our eyes: As a society, we are getting smarter. Networked democracy is taking hold. You can feel it. We the people--as Lincoln put it, "even we here"--are collectively still the key to the survival of America's democracy.
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