Victory Into Defeat

Of all the factors contributing to yesterday’s gun legislation fiasco, I only have eyes today for the one that so many others writing about the “crushing defeat” of the Manchin-Toomey background check bill keep strangely forgetting about: the current way the U.S. Senate operates. Ezra Klein, however, nails it:

The gun vote didn’t fail because a couple of red-state Democrats bolted, or even because too many senators are afraid of the National Rifle Association, or even because Sen. Pat Toomey couldn’t bring along more Republicans. Those factors help explain why the gun vote didn’t clear the extraordinary bar set for it to succeed. But they’re not the main reason it failed.

The gun vote failed because of the way the Senate is designed. It failed because the Senate wildly overrepresents small, rural states and, on top of that, requires a 60-vote supermajority to pass most pieces of legislation.

The Manchin-Toomey bill received 54 aye votes and 46 nay votes. That is to say, a solid majority of senators voted for it. In most legislative bodies around the world, that would have been enough. But it wasn’t a sufficient supermajority for the U.S. Senate. Of the senators from the 25 largest states, the Manchin-Toomey legislation received 33 aye votes and 17 nay votes — a more than 2:1 margin, putting it well beyond the 3/5ths threshold required to break a filibuster. But of the senators from the 25 smallest states, it received only 21 aye votes and 29 nay votes.

It’s typical to say that this is how the Senate’s always been. It’s also wrong. The filibuster didn’t emerge until decades after the first congress, and its constant use is a thoroughly modern development.

Yes, it’s true that the legislation would have probably expired in the Republican-controlled House, as a lot of us pointed out when a lot of Beltway pundits were treating Manchin-Toomey as some sort of miracle of wonder-working proportions. But what’s maddening to me is the easy acceptance by so many people (Democratic senators as well as media observers) of the radical idea of a Senate that requires super-majorities for every legislative act–other, ironically, than budget measures. Had Mitt Romney been elected president and Republicans had taken the Senate, the Ryan budget with all its vast implications would have almost certainly cleared the Senate on a straight 50-vote majority thanks to special rules for “reconciliation.” But a bill as meek and mild as Manchin-Toomey? No, it can be dealt a “crushing defeat” by 46 senators.

I would normally say “this has to change.” But for this to change, the first step is for political actors and political media to recognize and draw attention to the problem. I noted late yesterday that in a long report on the Manchin-Toomey vote in The Hill, the words “filibuster” and “cloture” do not appear, even though the vote in question was actually on a motion for cloture to end a filibuster. The defeat of the measure by a Senate minority was treated as just the way things are done. That is what has to change first, before real change can come to the Senate. And frankly, any post-mortem on the failure of gun legislation, however well-meaning, that doesn’t prominently mention the horrifically anti-democratic set-up of the current Senate is missing a crucial point.

Filibuster Delenda Est.

UPDATE: As at least a couple of commenters have noted, the vote on Manchin-Toomey was not, as I suggested, technically a “cloture vote,” but rather a vote on an amendment subject to a unanimous consent agreement requiring 60 votes for passage, executed to avoid what would otherwise have been a filibuster followed by an unsuccessful cloture vote. I regret the error, but would note this is a distinction without a difference, since the “right” to filibuster made the UC necessary. I guess I could amend my cri de couer to say “Filibuster (and unanimous consent agreements providing for supermajority requirements) Delenda Est,” but I think I’ll stick with the original formulation.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.