Joe Manchin, Kyrsten Sinema & John C. Calhoun Walk Into A Bar…

Joe orders a Black Russian, Kyrsten orders a White Russian, and John C. Calhoun orders a filibuster.

Nobody got any drinks.

West Virginia U.S. Senator Joe Manchin, a Democrat in his 2nd term has an illustrious history as a public servant which began with election to the state’s House of Delegates, then to the State Senate, and from there to statewide office as WV Secretary of State, and then as Governor.

In a June 6, 2021 Op-Ed published in the Charleston Gazette-Mail, he announced his opposition to H.R.1 – the “For the People Act of 2021” – ostensibly because of a wholesale lack of Republican support for it, including opposition to the idea of eliminating the filibuster.

Among other things, the bill would unify election law throughout the 50 United States by establishing uniform standards for federal elections, establish non-partisan independent state redistricting commissions in all 50 states, establish a Federal Judicial Code of Conduct, outlaw any action that would “corruptly hinder, interfere with, or prevent another person from registering to vote” or assisting another to register to vote, mandate “motor voter” registration when applying for a driver license, prohibit partisan voting registration “dirty tricks” to cull voters without their knowledge, require voter-verified permanent paper ballots, mandate early voting, as well as numerous other significantly beneficial improvements to national security and election law.

Relatedly, Arizona Senator Krysten Sinema, a Democrat two years into her first term, has announced her opposition to eliminating the filibuster – a procedural tool most often used by the minority to thwart legislation, by requiring at least 60 votes to proceed, thereby preventing it from even being discussed, in order to effectively kill the prospective measure.

The Senate’s 2 Independents – Bernie Sanders of Vermont, and Angus King of Maine – caucus with the Democrats, and in the case of now-rare tie votes, the Vice President Kamala Harris would cast any tie-breaking vote… if it weren’t for the filibuster – which has now degenerated into a mere threat, with no real “action” required to “activate” it, per se. It has become the quintessential model, and most public example of, pathological passive-aggressive behavior – doing nothing (the passive behavior) to control, or manipulate others (the aggressive behavior).

Back To The Future

At one time, or another, Republicans and Democrats have separately expressed desire to eliminate the obstructionist tactic of the filibuster, which was not supported by the Founders, but rather, was a response to Vice President Aaron Burr’s criticism (shortly after his indictment for the murder of Alexander Hamilton) that the Senate’s rules were a mess, with numerous rules that duplicated each other, and in particular, singled out the “previous question” motion. So, when the Senate met the next year in 1806, they eliminated the “previous question” motion of parliamentary procedure, which functionally ceased debate using a simple majority vote… because Aaron Burr told them to.

Deleting that rule did not immediately cause filibusters to break out all over, but merely made it possible for them to happen — because there was no longer a Senate rule that could have enabled a simple majority to cut off debate. It was only several decades later in 1837 that the minority exploited the insufficient limits on rules of debate, and had the first filibuster.

There were three essential reasons why the filibuster was so rare, and infrequently used before the Civil War, because:

1.) The Senate operated by majority rule, and Senators expected that matters would be brought to a vote;
2.) The Senate had little work to do in that era, and there was plenty of time to wait out any opposition, and;
3.) Voting coalitions in the Senate were not as polarized as they later became.

Catch-22

As our nation grew, and added states, so did the Senate add more members. With growth, came increased work. And by 1880, every Congress had at least one episode of filibustered obstructionism, most of which were unconcerned with important matters of the day, and instead were focused upon trivial, inconsequential matters.

So, when filibusters did occur, Senate leaders tried to ban them. Throughout the 19th and early 20th centuries Senate leaders tried to reinstate the “previous question” motion – but they failed repeatedly – and ever since, have long sought a procedure to end debate on any given matter.

More often than not, senators gave up any hope for reform when they became aware that opponents to the elimination of the filibuster would kill any such effort at changing the rules to eliminate the filibuster — ironically, by filibustering — thereby putting the majority’s other priorities at risk. Because they were unable to reform the Senate’s rules, leaders developed other innovations such as unanimous consent agreements, which measures were an option of second resort for managing a chamber which by then, was prone to filibusters.

In response, the Senate changed… but not by much.

“Unanimous Consent” agreements emerged like mushrooms after a springtime rain shower. And then, cloture was created in 1917 during the waning days of World War I. Not “simple majority” cloture, but “supermajority” cloture. The Senate filibustered for 23 days following President Woodrow Wilson’s proposal to arm merchant marine ships during WWI. It also ground to a halt all other work in the Senate. The President criticized the Senate by saying it was

“the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.”

In response to President Wilson’s withering criticism, a bipartisan Senate committee was formed to negotiate the form of the rule. Five of the six Democrats supported a simple majority rule; one Republican supported a supermajority rule; and one Republican preferred no rule. Negotiators then struck a compromise:

1.) Cloture would require two-thirds of senators voting;
2.) Opponents promised not to block or weaken the proposal, and;
3.) Supporters promised to drop their own proposal for simple majority cloture — a proposal which was supported by at least 40 senators.

Rule 22 – the cloture rule, to cease filibuster by a two-thirds majority vote – was adopted 76-3, on March 8, 1917.

Just Say No

Without Senators Manchin and Sinema’s support on vital bills forwarded from the narrow Democratic majority House, it’s practically assured that Republicans – who control 50 Senate seats – will once again, control movements of all legislation, despite the fact that when they were in control as the majority, they “circled their wagons” and got things done, even with Democratic opposition.

And, at a recent press event in his home state on May 5, 2021, Senate Minority Leader Kentucky Republican “Moscow” Mitch McConnell said,

“One hundred percent of our focus is on stopping this new administration.”

So, it very much looks like the Senate’s legislative “Grim Reaper” is back to his old manipulative tricks, despite being in the minority – just because he can.

Prophecy Fulfilled

As many political scientists, politicians, and analysts have observed, increasingly, the formerly Grand Old Party is losing grassroots support on a broad basis. But, it’s not as if such problems weren’t predictable. On February 1, 1993 Washington Post Reporter Michael Weisskopf wrote that:

“The gospel lobby evolved with the explosion of satellite and cable television, hitting its national political peak in the presidential election of Ronald Reagan in 1980.

“Unlike other powerful interests, it does not lavish campaign funds on candidates for Congress nor does it entertain them. The strength of fundamentalist leaders lies in their flocks. Corporations pay public relations firms millions of dollars to contrive the kind of grass-roots response that Falwell or Pat Robertson can galvanize in a televised sermon. Their followers are largely poor, uneducated and easy to command.

““The thing that makes them powerful, is they’re mobilizable. You can activate them to vote, and that’s particularly important in congressional primaries where the turnout is usually low. Some studies put the number of evangelical Americans as high as 40 million, with the vast majority considered politically conservative,” said Seymour Martin Lipset (d.2006), professor of public policy at George Mason University.”

What Michael Weisskopf wrote caused such an outrage and an uproar, so much so to the extent that the Post was moved to write some type of retraction as a “correction.”

It’s always easier to ask forgiveness, than permission.

But, what Weisskopf wrote about the predominately Rural, Republican-voting, White Protestant Evangelicals – that “Their followers are largely poor, uneducated and easy to command” – was true then, and it’s even more true now.

Folks don’t get mad because of falsehoods, or scurrilous accusations.

They get mad because of truth.

While campaigning for the Republican party’s nomination, after winning Nevada’s Republican caucuses on February 23, 2016, the later-45th President exclaimed, “I love the poorly-educated!”

Of course he does — because they’re too stupid to know when they’re being played for a fool. And he played them like a fiddle – like Nero, while Rome burned.

The once-Grand Old Party has demonstrably become the Party of Poorly-Educated, Low-Skilled, Poorly-Paid and Often-Impoverished, Rural Working Class Whites who watch and believe Fox News like religion – especially men – who twice voted for Trump, still believe his Big Lie, earn well under $50K annually, and increasingly vote Republican – against their own best self-interest.

They support candidates whose exclusive guiding political philosophy is to refuse endorsing higher wages, healthcare, education, and other matters of direct concern to them and their families, and magically believe that a privatized, laissez-faire free market everything will solve all problems. They are becoming, or have become, a minority voting bloc whose interests are not represented by the political party for which they increasingly vote.

They are, in essence, deluded.

We’re Going Down

In the few days before the January 6 insurrectionist attack upon Congress at the Capitol, led by far right-wing extremist Kentucky Republican Representative Thomas Massie CD-4, seven House Republicans issued an extraordinary joint statement dated January 3, 2021 entitled “Joint Statement Concerning January 6 Attempt to Overturn the Results of the Election” that warned about the demise of the Electoral College.

In part, it read:

“From a purely partisan perspective, Republican presidential candidates have won the national popular vote only once in the last 32 years. They have therefore depended on the electoral college for nearly all presidential victories in the last generation. If we perpetuate the notion that Congress may disregard certified electoral votes—based solely on its own assessment that one or more states mishandled the presidential election—we will be delegitimizing the very system that led Donald Trump to victory in 2016, and that could provide the only path to victory in 2024.”

NOTE: That statement/claim made by the 7 House GOPers is WRONG.
Since 1988, there have been TWO Presidential elections in which Republican candidates have won the National Popular Vote.
1.) 1988 GHW Bush-R v Dukakis-D
Electoral vote = 426 – 111
Popular vote = 48,886,597 – 41,809,074
Percentage = 53.4% – 45.6%

2.) 2004 GW Bush-R v Kerry-D
Electoral vote = 286 – 251
Popular vote = 62,040,610 – 59,028,444
Percentage = 50.7% – 48.3%

However, the truth of that remark is 100% spot-on, which is that:
1.) The GOP is not winning national popular votes in presidential elections because the people don’t like what Republicans have to say, or do when they get in office, and;
2.) Acting on the BIG LIE from the BIG LIAR will destroy our democratic republic.

The GOP is, in essence, out of touch with the very people whose interests they purport to represent.

In the Senate, the 2 Independents – Bernie Sanders of Vermont, and Angus King of Maine – caucus with the Democrats, and in the case of now-rare tie votes, the Vice President Kamala Harris would cast any tie-breaking vote… if it weren’t for the filibuster – which has now degenerated into a mere threat, with no real “action” required to “activate” it, per se. It has become the quintessential model, and most public example, of pathological passive-aggressive behavior – doing nothing (the passive behavior) to control, or manipulate others (the aggressive behavior).

Back to the Future Part II

A cursory examination of the goings-on and political machinations in this modern era, particularly most recently, are nothing new, per se, and rather, hearken back to an initial, founding time in our nation’s history.

Reflective of that, are the events of January 6, 2021, in Washington, D.C., in which violently murderous insurrectionists attacked not merely the Capitol building, but rather, attacked the Congress of the United States as they were performing their Constitutionally-mandated duties, governing functions, and responsibilities of office, in the process of a requisite, if not seemingly symbolic, though uniquely official, joint session of Congress – a combined meeting of the House and Senate to certify the Electoral College results.

And then, there is at least one other modern, similarly common, widespread, and ever-increasing, example that typifies the nullification case in point, which has been, and continues spreading, throughout the United States, state-by-state. It is the increasing number of states where the legalization, taxation, and regulation of cannabis (“marijuana”) for either medical, or adult recreational use has occurred.

By now, most everyone likely knows that John C. Calhoun (1782-1850) was a virulent proponent of slavery, in addition to being:

• U.S. Representative from South Carolina from 1811-1817;
• U.S. Secretary of War from 1817-1825;
• Creator of the Bureau of Indian Affairs 1824;
• Twice Vice President – to John Quincy Adams (1767-1848) from 1825 to 1829, and to Andrew Jackson (1767-1845) from 1829 to 1832;
• U.S. Secretary of State from 1844-1845, and;
• Two-term U.S. Senator from South Carolina from 1832-1843, and 1845 until his death in 1850.

In 1804, he graduated Yale as valedictorian and Phi Beta Kappa – the nation’s oldest academic honor society – was an advocate of limited government, and later of nullification – the concept that states have a right to invalidate (nullify) any Federal laws which they deem unconstitutional by the U.S. Constitution’s standards. Federal Courts have never upheld any effort to practice nullification.

During his time at Yale, Calhoun was mentored by college President Timothy Dwight IV (1752-1817), a Congregationalist minister, theologian, academic, educator, and author, who was elected Fellow of the American Academy of Arts and Sciences in 1797, and an early member of the American Antiquarian Society elected in 1813, and was the 8th university president from 1705 until his death in 1817.

Politically, Dwight was a Federalist whose oratorical skills Calhoun almost revered. However, in classroom lectures, Dwight was known to have repeatedly denounced Jeffersonian democracy, and could not assail Calhoun’s ardor for republicanism.

Once, when Calhoun challenged him on the topic during didactic instruction, Dwight replied to him, “Young man, your talents are of a high order and might justify you for any station, but I deeply regret that you do not love sound principles better than sophistry — you seem to possess a most unfortunate bias for error.”

And, it was in Dwight’s classroom that Calhoun first heard the ideology of secession, and nullification via states’ rights, which Dwight proposed as a solution for the numerous disagreements the New England states had with the Federal government.

Pulitzer prize-winning Calhoun biographer Margaret Louise Elwell Coit (1919-2003), whose 1950 work “John C. Calhoun, American Portrait” won the 1951 Pulitzer Prize for Biography or Autobiography, wrote this of Calhoun:

“Calhoun was learning more than law at Litchfield. The startling fact is that every principle of secession or states’ rights which Calhoun ever voiced can be traced right back to the thinking of intellectual New England in the early eighteen-hundreds. Not the South, not slavery, but Yale College and Litchfield Law School made Calhoun a nullifier. In the little classroom, Reeves at white heat and Gould with cold logic argued the ‘right’ of secession as the only refuge for minorities. Logically, their argument was unimpeachable. Messrs. Dwight, Reeves, and Gould could not convince the young patriot from South Carolina as to the desirability of secession, but they left no doubts in his mind as to its legality.”

— Coit, Margaret L. (1950). John C. Calhoun: American Portrait. p42, Boston: Houghton, Mifflin. ISBN 0-87797-185-4.

How Did We Get Here?

The nullification argument, its rationale, and the premises upon which it was based, emerged circa the era of the 1787 Constitutional Convention in Philadelphia, PA when the delegates were in the process of determining if the emerging union, and states, were to be either a confederacy, or a nation. A confederacy differs from a federation, insofar as a confederacy is a conglomeration of voluntarily affiliated, or allied states, which have a weak central government, with significantly greater power given to individual member states, whereas with a federal system of government (or federation), the government is central, with power over the member states – as a central, unifying authority. Organizing as a confederation is often the first step in becoming a nation.

And in the course of that greater discussion, a debate ensued between Senator Daniel Webster (1782-1852) of Massachusetts, and Senator Robert Y. Hayne (1791–1839) of South Carolina, across a broad range of topics, which occurred over the period of January 19–27, 1830, and which later became known as the Webster–Hayne Debate.

The debate topics varied, though it started as a disagreement over westward expansion, the sale of Western lands, internal improvements, and morphed into a much broader discussion of protectionist tariffs, and finally, nationalism versus states’ rights. The Webster-Hayne debate series is considered by many to be one of the most eloquent discourses ever given in the Senate – especially Webster’s 2nd reply to Hayne. And yet, behind those, and other arguments of the day, were two very different opinions of the origin and nature of the emerging American union.

“The reply to Hayne settled in the minds of all reasonable men the question of State Rights and Nullification, then broached in Congress, to the great danger of the Union.”
– Wilbur M. Hayward, “Eulogy,” in “The Life, Eulogy, and Great Orations of Daniel Webster,” p61, 1854, Rochester, W.M. Hayward & Co.; Boston, French & Co.

Webster argued that the American people had created the Union to promote the good of the whole. Hayne argued that the sovereign and independent states had created the Union to promote their particular interests. Hayne maintained that the states retained the authority to nullify federal law, Webster held that federal law expressed the will of the American people, and could not be nullified by a minority of the people in a state.

As a governing document, the Articles of Confederation (in effect 1781–89) preceded the Constitution of the United States, and established a Congress of the confederation as a unicameral assembly of ambassadors from the 13 states, with each possessing a single vote. The Congress was then authorized to appoint an executive committee of states.

The drafters of the Articles of Confederation deliberately established a confederation of sovereign states because the memory of British oppression in its many forms was fresh in their imaginations.

Written from 1776–77, the Articles of Confederation were adopted by the Congress on November 15, 1777, but were not fully ratified by the states until March 1, 1781.

Caleb William Loring (1819-1897) wrote a history of the proceedings of the Constitutional Convention in a 1893 work entitled “Nullification, Secession: Webster’s Argument And The Kentucky And Virginia Resolutions Considered In Reference To The Constitution And Historically,”

“The vital question is whether a national union was established by the States, or a confederacy of independent nations formed with the right of each to decide upon the validity of the acts of the General Government and leave it at its pleasure.”
– preface from: “Nullification, Secession, Webster’s Argument And The Kentucky And Virginia Resolutions Considered In Reference To The Constitution And Historically,” by Caleb William Loring, 1893

John C. Calhoun was a fairly smart fellow. And yet, he’s “dinged” almost exclusively for his stance upon slavery, and practically no other. And if you asked most folks if they’ve heard about John C. Calhoun, the only thing they could tell you is that he was a racist. Talk about being narrow-minded, and throwing the baby out with the bathwater!

To be certain, this is not an attempt to lionize the man, nor to make excuses for his wretched position upon slavery, nor his advocacy of it. Rather, it’s simply an examination of some principles that today, many take for granted, and their origins.

Can We Look Around A While?

So, let’s examine a few things. First let’s examine the concept of minority rights. Most would agree that minorities have rights, and that those rights are equal to those in the majority. Minorities should not be discounted or “trampled upon” in the course of legislation, or process. The minority’s voice is equally important.

That concept – of minority rights – was promoted by Calhoun, while he advocated maintaining the antebellum slavery/human chattel system then entrenched in the South. It was later known as the filibuster. Before the Civil War, opposition to slavery in Northern states was quickly outnumbering the few in the South which advocated continuing slavery. The discussion spread to Congress, where Northern abolitionists had the numerical upper hand. But as a Senator from South Carolina, Calhoun devised using a little-known weakness in the Senate’s parliamentary procedure to stop debate – a procedural method in which the minority Southern states could still had a voice in the matter, even though they were outnumbered – the filibuster.

But, recall also, that the Northern states were the creators of the notoriously infamous “Three-Fifths Compromise.” Specifically, Roger Sherman of Connecticut, with the support of James Wilson of Pennsylvania, created by proposing to the Southerners, a plan in which enslaved persons and other non-White people were counted as less than a full human being for statistical, voting, and legal purposes, when census enumeration occurred every 10 years.

Simply put, because Southerners were outnumbered by Northerners, Southerners desired (and schemed of) a plan to give themselves greater numbers (and thereby, greater Congressional power in the House of Representatives) – by counting slaves, and other non-White folks who then were not considered equal under law, neither could own property, nor could vote. But the Three-Fifths Compromise was that slaves and other non-White persons would not count as a “whole person,” but instead, were counted as 3/5ths (60%) of a person.

That was the compromise – to include slaves, and other non-White persons, in the Census count, as the Southerners requested (which they did so that they might have greater representation, and therefore, more power) – but not to count them as “whole” persons. Again, it was the idea of Roger Sherman of Connecticut, with the support of James Wilson of Pennsylvania, to not count slaves and other non-White persons as “whole” persons.

Deja Vu All Over Again

And what about nullification?

Ever been to a state where cannabis (marijuana) is legal in any form – for adult recreational, or medical use?

That’s a modern example of the practical side of nullification, in which states have “nullified” federal law. It hasn’t been tried in the courts, and indeed, every court of jurisdiction has always refused to hear such cases, simply because is a settled matter by virtue of the Constitution.

The reason the federal government is ignoring the states that have enacted some type of marijuana legalization program, is because of the “Cole Memo,” which was authored by United States Deputy Attorney General James M. Cole of the United States Department of Justice and issued August 29, 2013.

It offered prosecutorial guidance to United States District Attorneys who sought to negotiate the differences between states’ laws which had legalized cannabis, and federal law, which maintained its illegality through the Controlled Substances Act, and stated eight priorities which federal prosecutors should consider before initiating any cases involving cannabis:

1.) Preventing the distribution of marijuana to minors;
2.) Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
3.) Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
4.) Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
5.) Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
6.) Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
7.) Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
8.) Preventing marijuana possession or use on federal property.

And the “Connecticut Compromise”?

It was a deal struck with, and offered by Roger Sherman and Oliver Ellsworth, both of Connecticut, to have a bicameral legislature, with representatives apportioned according to population in a House of Representatives, and an equal representation in a Senate from all states, regardless their population. Up to that point, a unicameral legislature had been established by the Articles of Confederation, and a dispute arose among the larger, more populous states, and smaller, less populous ones about equality of representation. The Connecticut Compromise resolved that matter.

Though presently, Democrats now hold but a sliver of a majority in both Congressional chambers – House and Senate – the balance of power remains tenuous, and may likely change at mid-term elections. Presently, there are 5 vacancies in the House, which will soon be filled.

In the House, there are 211 Republicans, 219 Democrats, and 5 vacant positions. The 5 vacant seats in the House are:

• TX-6, formerly held by late Republican Ron Wright, district voted for Republican House candidates since 1983
• OH-11, formerly held by Marcia Fudge who was appointed as Secretary of Housing an Urban Development, district voted for Democrat since 1983
• NM-1, formerly held by Deb Haaland, who was appointed as Secretary of the Interior, has been held by a Democrat since 2009
• FL-20, formerly held by late Democrat Alcee Hastings, held by Democrats since creation in 1993
• OH-15, formerly held by Republican Steve Stivers, who resigned to become President and CEO of the Ohio Chamber of Commerce, special election November 2, 2021, has been held by Republicans since 1967, with the exception of 2009-2011.