America is hard to govern by design — that was the point. The constitutional framers wanted to minimise any chance of tyranny, even if it were carried out by the majority. That does not mean they intentionally wanted paralysis — a misreading that is often advanced. Even if that had been their aim, which it wasn’t, 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 best which governs well — not least. Thursday, January 13 2022 should be remembered as a milestone on America’s journey to ungovernability. It was supposed to be the day that President Joe Biden would try to convince the two wavering Democratic holdouts — Senators Joe Manchin and Kyrsten Sinema — of the need to dilute the filibuster to enact voting rights reform. An hour before Biden made the trip down Pennsylvania Avenue, Sinema shot down whatever lingering hope there was of passing either bill by saying she would refuse to change the filibuster. Manchin had already made his aim clear earlier in the week when he said he would not sacrifice 232 years of political tradition to pass the bills. A couple of hours later, the Supreme Court voted 6-3 to strike down Biden’s workplace vaccine mandate as unconstitutional. It was a great day for Covid — and polio for that matter. It was also a bonanza for constitutional dupes and quacks.
I have no idea whether Manchin or Sinema believe their own arguments about the filibuster or are being deliberately misleading. Either way they are wrong. The current filibuster dates to 1975 when the Senate changed the rules to require three-fifths of the body to end debate, which supplanted the previous two-thirds “present and voting” rule. As Capitol Hill historian Norm Ornstein writes, “The ‘present and voting’ standard, by requiring senators to show up, put the burden on the minority; the absolute standard shifted the burden entirely to the majority.” Even then, the tougher version was only used rarely until the Clinton era, when today’s more obstructionist politics took hold.
Prior to 1975, the blocking device was deployed only sparingly and almost always by southern senators to block civil rights measures — both before and after the civil war. Even then, the “present and voting” rule meant there were usually ways round the blocking minority. One of these was to exhaust the obstructionists by forcing them to be present at all times. The only areas where the constitution requires Senate super-majorities are to ratify treaties, impeach someone or amend the constitution. Everything else was simple majority vote. Manchin and Sinema are hiding behind what I call “bipartisanspeak” — folksy historicism that trades on their audience’s ignorance. Unless they can be given a crash course in history (and agree with it) the bulk of Biden’s domestic agenda is dead.
The Supreme Court ruling was more ominous still. Six justices, five of them appointed by Republican presidents who did not win the popular vote, two of whom were confirmed in a process that traduced far more longstanding Senate traditions, overturned the elected US president’s main tool for fighting a pandemic that has claimed almost 900,000 American lives. According to those six justices, Biden was wrong to treat the virus as a workplace safety issue. Covid-19 was in fact a public health matter. On that sleight of semantics, the justices not only disabled the federal government’s ability to fight the pandemic but overturned the court’s own precedent of upholding vaccine mandates (dating from its 7-2 polio ruling more than a century ago). No amount of renting of garments and gnashing of teeth will pressure the Supreme Court to change its mind. They are appointed for life and thus immune to politics.
The ruling is “ominous” because the big margin to strike down the vaccine mandate indicates that conservative justices will pay little heed to public opinion on Roe vs Wade, which I wrote about in a recent Swamp Note, or on the Biden administration’s treatment of carbon as a pollutant under Environmental Protection Agency. Both rulings are expected in the coming months. Recent courts have gutted the Voting Rights Act, greatly 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.
All of which flies against fairly settled majorities of US public opinion and in the face of elected Democratic majorities in America’s two other branches of government. If a Democratic president cannot govern now, when would that be? Rana, perhaps you have a better answer to that question than I do. In his statement this week, Manchin said the filibuster “makes us different to any other place in the world”. He was right. He should have added it also makes America different from its own past. “Bipartisanship” as an excuse for inaction should never be entertained. America’s 15th amendment, which gave freed slaves the right to vote, was enacted along partisan lines.
Talking of history, my column this week looks at echoes of the 1970s in today’s America — rising inflation and homicide rates, political dysfunction and Russian military rumblings. In spite of what I have written in today’s note, Biden should beware Jimmy Carter’s trap of talking about American malaise.
My colleague Simon Kuper has a great piece about the toll of anti-vaxxers on society and their own families. Avoid some of the rabid comments beneath. I try to keep sane by turning a blind eye.
Do also read Joe Nye in Project Syndicate on why soft power still matters — something the Chinese have yet to master. The secret sauce of US soft power is that it does not rely on American politics to be effective, which, all things considered, is just as well . . .
To end a grim note on a light one, do look at 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 little tongue in cheek. In retrospect I should have chosen Rock Creek Park.
Rana Foroohar responds
Ed, I wonder if America will only become more governable, be it by Democrats or Republicans, when the Boomers are gone and a new generation of Americans is in charge. Biden has been 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 might conceivably succeed him, a Pete Buttigieg or a Stacey Abrams, for example, seem a bit too young to take up the presidential mantle at this point. It’s like there’s a generation that’s 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 really clever, seasoned people in their 50s and 60s who could churn out polished, stylish prose, and lots of really talented young journalists who could work across mediums, but no smart, workhorse 30 and 40-year-olds to do the senior editing. They’d all moved to LA or San Francisco to work in the New Economy.
It feels like that in politics right now. There’s no middle, in any sense. I think Democrats will perhaps be able to find more unity within their own party once we’ve let go of the old divisions between those who focus on class versus race — my sense is that amongst my daughters’ generation the two things are thought of in tandem, and not as polarising as they are amongst older people. I also think it would help if the party as a whole would stop messaging so much to people like Joe Manchin, which will be easier once the transition to clean energy is over. Republicans have bigger problems, I think, because it’s like they are missing not only a generation but an entire definition of what it means to be both thoughtful and conservative. I wonder if people like Ross Douthat are showing the way — as you’ll see here, he’s a lot more optimistic about America’s future.
My final thought here — I honestly think we may look back in a few years, after Covid, after inflation stabilises (which I think it ultimately will as we transition to an economy in which production and consumption are more balanced), after a new and more regionalised world takes shape, and after the new geography of work and life settles out and say, hey, maybe things aren’t so bad. There are a lot of seeds being planted right now politically (Biden is doing a lot with executive orders, actually, as I’ll mention in my next column), and it takes time for them to come to fruition.
But I’m bracing myself for the mail saying how Panglossian that sounds.
And now a word from our Swampians . . .
In response to ‘What’s on my mind for 2022’:
“Ed referred to the US electorate’s lack of interest in January 6; the French Revolution also happened because many middle and upper middle class people had lost respect for the king, to paraphernalia of Versailles and arcane rules totally divorced from their daily lives and interest. In 1848 Tocqueville summed up why the July Monarchy of King Louis Philippe walked into a trap it did no see. While the parliament was debating an increase of the ‘liste’ royale, the money voted for the king every year, they did not notice that poverty was spreading fast . . .” — Francis Ghiles, Barcelona, Spain
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