A Silver Lining, Perhaps

The arguments Democratic senators made last night to reform the filibuster, e.g. by returning to the “talking” filibuster that can delay legislation as long as the minority keeps arguing against it, meaning that a bill can’t be stopped in its tracks by email, were so good that the refusal of two “Democratic” senators to vote for reform is either the result of stupidity or base motives.

If they truly believe the filibuster fosters bipartisan solutions, they are stupid. If they think the country will be better off with Republicans having total electoral control in various states, possibly resulting in the return of the worst president in history — whether he wins or not — they are horrible people. (We shouldn’t rule out the likelihood that they’re both stupid and horrible.)

Anyway, Paul Waldman of The Washington Posts looks on the bright side:

For years, Democrats have been waiting for Republicans to have their “epiphany,” to realize that scorched-earth politics and implacable opposition to anything a Democratic president might suggest are not good for the country. The epiphany has arrived — but it’s the Democrats who have finally come to understand reality, and are prepared to act accordingly.

This might seem like a moment of Democratic defeat [it sure as hell does]. But it could be a turning point, one that leads to more progress in the future.

At his Wednesday news conference, President Biden was asked whether he had over-promised and what he planned to change in the remainder of his term. In response, he said, “I did not anticipate that there’d be such a stalwart effort to make sure that the most important thing was that President Biden didn’t get anything done.”

Lots of people anticipated it — it has been a topic of debate for years, and Biden took a lot of criticism in the 2020 campaign from those who thought his claim that he could persuade Republicans to work with him was disingenuous or naive. Every reasonable observer knew that [Republicans] would approach his presidency with the same strategy it used with Barack Obama: Oppose almost everything the president proposes, and do everything in the party’s power to make him fail.

But what matters at the moment isn’t whether Biden ever believed [Republicans] would act differently. It’s that he seems ready to stop pretending that a dawn of bipartisan cooperation is about to break.

Now consider what happened that night, when Democratic Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) joined with every Republican to shoot down a rules change that would have allowed two voting rights bills — bills Manchin and Sinema claim to support — to receive an up-or-down vote.

It was absolutely a defeat, for Biden, for his party, and most of all for voters. But it also represented a significant shift within the Democratic Party. That’s because every single Democrat apart from Manchin and Sinema supported setting aside the filibuster.

A variety of factors led them there. The obstructionism and radicalism of today’s [Republican Party] certainly played a part. Perhaps just as important, we’ve had our first real, detailed debate about the filibuster, and all the arguments in its defense were revealed to be so preposterous that it has become almost impossible for any honest person to oppose reforming it.

As Sen. Amy Klobuchar (D-Minn.), a more moderate Democrat, explained in a passionate plea, the Senate has adjusted filibuster rules to allow majority votes more than 160 times, including for such pressing matters as “approving compensation plans for commercial space accidents.”

So with two exceptions, every member of the Democratic caucus, from progressives such as Bernie Sanders (I-Vt.) and Elizabeth Warren (Mass.) to moderates such as Jon Tester (Mont.) and Angus King (I-Maine), agreed that the filibuster has to change here as well.

There was nothing like that kind of unanimity even a year ago. That glass is now 48/50ths full.

And the defeat of these voting rights bills, which is extremely painful for both Democratic legislators and their party’s base, might actually hasten the filibuster’s demise.

As I’ve noted, in every state where Democrats have a chance to take a Republican Senate seat, all Democratic primary candidates favor scrapping the filibuster. That includes both moderates and progressives. Though there are many things that divide, for instance, Rep. Conor Lamb and Lt. Gov. John Fetterman in Pennsylvania, they agree the filibuster should go.

Democrats, including the president who has spent so much time insisting that he can achieve bipartisanship, are simply done waiting for Republicans to see the light. The next step is for them to get mad enough to do something about it.

Which might happen. Even though the most likely outcome in 2022 is a Republican sweep (following the usual midterm election pattern), Democratic voters can and should be angry enough about the death of these voting bills — among many other things, including the Supreme Court’s likely overturning of Roe v. Wade this year — to organize, register and overcome Republican voter suppression to get to the polls in November.

If you’re a Democrat and you’re mad at Manchin and Sinema — and you should be — the answer is to make them irrelevant by electing a few more Democrats to the Senate.

Besides, they’ll probably be around for only a few more years. Manchin might not run for reelection in 2024, and if he does, he’ll probably lose, as long as Republicans find a halfway decent candidate in deep-red West Virginia. And after this, Sinema couldn’t win a Democratic primary for dogcatcher; if she runs again the same year, she’ll face a strong primary challenge [the latest poll shows she has an 8% — eight percent — approval rate among Arizona Democrats].

So it’s not hard to imagine the Senate considering voting rights again in the near future — and this time, there will be 50 votes to pass it.

Thanks to Manchin and Sinema, and to Republicans who remain just what they’ve been all along, Democrats can no longer afford to delude themselves about how politics works today. And for a change, they all know it.

The Best Argument Against the Filibuster: It’s Unconstitutional!

There’s a rumor that Krysten Sinema (“Dem” – AZ) thinks her career — including being elected to the Senate — has been so impressive that her logical next step is to run for president. That’s why she doesn’t care that protecting the filibuster is killing the Democratic agenda and that, as a result, Democrats in Arizona hate her. She’s planning to run for president in 2024 under the banner of “bipartisanship”. It’s a ludicrous idea, but her big money donors are willing to fuel her fantasies. 

Filibuster reform may be dead for now but Thomas Geoghagen explains why the filibuster is  unconstitutional. From The New Republic: 

Over the course of many years and many think pieces, the case against the filibuster has been laid out. Typically, critics of the Jim Crow relic invoke various historical facts (some of which have apparently been lost on, or willfully ignored by, certain critical members of the Senate), as well as an array of practical and prudential bases. Onto the pile, however fruitlessly, let us add another: The filibuster is a plot against Vice President Kamala Harris—to take away her constitutional right to vote.

Article I, Section 3 of the Constitution makes it plain: Harris, as chair of the Senate, is given the responsibility to vote “when the Senate is equally divided.” In all the furor over the filibuster blocking voting rights legislation, keep in mind it is blocking Harris from this constitutional right, as well. The supermajority rule that ran counter to the Founders’ desires, now upheld by the filibuster’s status quo, is not just aiding in the disenfranchisement of voters by blocking meaningful voting rights legislation from passage—it’s also disenfranchising the woman sent to Washington to resolve the disputes of a divided Senate.

It would be fitting if Harris, given the chance to gavel the filibuster out of existence to pass the Freedom to Vote Act, reclaimed her rights at the same time. She can put that to the Senate on January 17 when any rules changes are being considered—by starting with a declaration that the filibuster is not just unfair or undemocratic but unconstitutional, as well.

The filibuster is not just a technical violation of Article I—though it is precisely that—it’s also a repudiation of its original design. That design created a bicameral legislature, with each house operating by majority rule, to replace the single legislative chamber that operated under the Articles of Confederation by supermajority or unanimous consent. By sneaking in a supermajority rule on the sly, as a procedural rule of debate, the Senate has essentially brought back a form of the obsolete Articles of Confederation. It shouldn’t really come as any surprise that the republic now faces a similar impetus toward disunion to the one it faced when the Articles were in place. The plot against Kamala Harris is not just a plot against the Constitution—it’s a force that threatens the existence of the United States itself.

It is without doubt a fact that the Framers wanted a deliberative legislative body. That’s why they divided the Congress into two houses—to provide a vital check and balance. Supermajority rule in the Senate upends the Framers’ intentions: It places too great a check on the House—without the House’s consent. More specifically, it inflicts an institutional injury on the House, as the “active principle of government” that the House is unable to redress. This is exactly what worried James Madison, Alexander Hamilton, and others who bitterly criticized supermajority rules.

Yes, as defenders of the filibuster point out, the Senate has a right to make rules as to its own proceedings, but trifling with majority rule crosses textual red lines. Beyond the aforementioned Vice President Voting Clause in Article 1, Section 3, there is also the “Presentment Clause” of Article I, Section 7, which says in two places—yes, twice—that any bill or resolution passed by the House and Senate, “shall, before it becomes law, be presented to the President,” and if sent back, then it must be “approved by two thirds of each House.” The Presentment Clause would make no sense if the Senate required more than a majority to send it to the president in the first place. Finally, there is the Enumeration of Super Majority Rules, the seven times in the text of the Constitution that specifically lay out where and when a supermajority is expressly required.

One might nevertheless ask, why not by majority rule permit Congress [to institute] rule by supermajority? Of course this is an academic question—for Congress, by vote of both Houses, has never adopted a supermajority rule. The filibuster is simply a rule of the Senate, which has the effect of limiting the ability of the Congress to act. But Congress itself has never approved it. Yes, there has long been a cloture rule for the so-called “talking” filibuster. In 1917, the Senate adopted such a rule, which then required a two-thirds vote—now reduced to three-fifths. And while this rule did have a disgraceful and pernicious effect in race-related matters, the talking filibuster of old only on rare occasions held up a majority vote, maybe once or twice a year or not at all. But in our time, the talking filibuster for which the rule was intended is gone; no one has to talk to block a bill. And what was a procedural rule to get to a vote faster is now a rule that stops a vote from happening at all.

No, Congress has not adopted and never would adopt such a rule. Why would the House consent? As it now exists, it lets the Senate place a much greater check on legislation passed by the House than the Framers ever intended. It’s bad enough that this upsets the balance of power between the Senate and House, but it also upends the balance of power between the federal government and the states. The Senate, representing the states, is blocking the House, representing the people.

For the sake of argument, let us assume the text of the Constitution is less explicit than it actually is. Allowing Rule 22, which bars a vote by the majority without even active debate, still violates two fundamental canons of constitutional interpretation. The first canon, or rule, is the expressio unius principle—listing the exceptions for supermajority implies the exclusion of all others. That principle is basic in constitutional interpretation. In the case of Powell v. McCormack, the Supreme Court barred the U.S. House from excluding Adam Clayton Powell as a member because of “unethical conduct.” That was not one of the bases listed in the Constitution, and the listing of those bases implied the exclusion of others.

Additionally, to allow the Senate to add a supermajority rule would violate a second canon, the so-called Federalism Canon—which calls for the balance between federal and state power to be left alone. The filibuster changes the relative balance of power between the Senate, representing the states, and the House, representing the people. It is no accident that in blocking voting rights legislation, it is being used to protect the states from being regulated.

Harris, as chair, could reach the same conclusions. Rather than just hope a Senate majority uses the “nuclear option” to rid us of the filibuster, she could press the button. For the reasons above, she could declare the supermajority for cloture to be in conflict with Article I.

She may fail in the attempt. A majority can overturn a ruling of the chair. It is not so easy even for some Democrats in the Senate to give up the filibuster. There are many, many other bills that the senators take up other than voting rights legislation. So individual senators are caught in a dilemma worthy of a class in game theory—though glad to remove it for A, they do not want to remove it for B, or maybe C, or maybe D, or maybe an unknown X that will arrive later in their six-year terms. So the filibuster remains in place forever—except now for the budget and for nominations to judgeships and political positions. In these two cases, the budget and nominations, there is no choice but to get rid of the filibuster or there would be institutional collapse of the courts and of the executive branch.

However, with the John Lewis Act and Freedom to Vote Act, we are speaking about the institutional collapse of democracy itself. Protecting the integrity of federal elections from state interference is necessary to the integrity of the federal government—it is an obligation that is set forth in the original Elections Clause, Article I, Section 4. It is the only clause, the only text, that says Congress can override any state regulation of a federal election. Ever since 1787, Article I, Section 4 has been in there, the original nuclear option, to protect the national government from institutional collapse. It is an outrage to use the filibuster to block even the power of the national government to save itself. Surely that must have at least the same priority as enacting a budget by majority rule.

Let the vice president show some muscle in defense of her country. Let the debate start on January 17 with a ruling from the chair that Rule 22 is in conflict with her own right to cast a vote when the Senate is evenly divided. Then let her dare the Senate to overrule her. To reclaim the right to vote in the blocked legislation, she should begin with reclaiming her own right to vote, as well.

By a quirk of history, the plot against America is now also a plot against a Black woman’s right to vote. Who says the vice president has nothing to do?

Manchin, Manchin, Manchin, Maybe, Maybe, Maybe

Since all 50 Republican senators are opposed to even debating voting rights legislation, the only way for the current Senate to protect democracy is for all 50 Democrats to agree to change the filibuster. One “Democrat” who hasn’t agreed yet is the Maserati-driving, coal-loving senator from West Virginia. Greg Sargent of The Washington Post says there might still be a glimmer of hope regarding Sen. Manchin and voting rights:

By now, you’d be forgiven for concluding the chances of Sen. Joe Manchin III supporting a filibuster carve-out to pass democracy protections are somewhere between nonexistent and extremely nonexistent.

The West Virginia Democrat has spent many months chasing after Republican support for legislation protecting voting rights and democracy, and virtually none has materialized. Yet he continues to insist he won’t support any sort of filibuster reform, even to pass legislation he himself champions that would accomplish something he himself says is essential [it’s not clear he knows the meaning of “essential”].

But in an interesting twist, some Senate Democrats still haven’t given up on Manchin. Though the story all over Twitter is that Waiting For Manchin is utterly hopeless, they’re still trying to win him over.

I’m told Manchin and a dozen other Senate Democrats met with an expert on Senate rules and discussed various ways of carving out a filibuster exception or otherwise reforming it to allow passage of voting rights legislation. . . . 

The ideas included looking at how to change the rules specifically to pass voting rights protections by a simple majority threshold, a Senate Democratic source who shared details of the meeting told me. The source added: “Manchin is engaged.”

The expert whom Manchin and other Democrats met with is Martin Paone, who has three decades of experience in Senate staff positions, the source tells me. Paone will also attend Friday’s caucus meeting among Senate Democrats, where this will get further discussion.

These meetings are separate from another set of meetings going on among Senate Democrats that doesn’t involve Manchin.

Manchin supports a reasonably good package of democracy protections, including things such as automatic voting registration, various curbs on voter suppression and election subversion, limits on partisan gerrymandering, and baseline standards to facilitate voting by mail. Elections expert Richard L. Hasen has declared a package like this worth supporting.

The dynamics on Manchin and the filibuster are more complicated than it seems from the outside. According to a voting rights advocate who has been in discussions with Manchin and other Democratic senators, the basic contours of the situation are as follows.

First, Manchin remains reluctant to support anything seen as a “slippery slope” to ending the filibuster entirely. So it’s more likely he’d support reforms that stop short of a full carve-out of the filibuster to pass voting legislation. Such reforms could include requiring the minority to hold the floor to sustain a filibuster . . . 

The advocate says Manchin is more open to ideas [that] can legitimately be described as “restoring the filibuster” [to what it used to be, i.e. a way to delay a vote, not block it].

This would be a good argument. After all, a filibuster can now be executed simply via an emailed statement from a single senator. That’s obviously a ridiculous state of affairs that allows the minority to render the Senate dysfunctional for bad-faith purposes while escaping procedural difficulties in doing so, and even evading public accountability for it.

Still, . . .  pulling the trigger on broad reforms [that would increase] the burden on the minority is complicated. Manchin could decide a carve-out just on voting rights is simpler in the interim, the advocate says.

Here’s another nuance. A second source who has been informed about discussions between Manchin and other senators tells me Manchin seems open to arguments that cast filibuster reform as a response to partisan procedural abuses.

In this conception of the situation, that source says, the fact that the Senate can’t pass voting rights legislation “shows that the institution is fundamentally failing,” precisely because it “used to do so on a broad bipartisan basis.”

What’s more, this source says, this sort of filibuster reform wouldn’t be about “passing the left’s priorities,” but instead about “passing changes that are basic to the functioning of democracy.”

Manchin appears open to these arguments as a longtime advocate for bipartisanship in the Senate, the source says, because here it’s obvious the filibuster is being used to further partisan efforts to close down pro-democracy reforms that used to be a bipartisan no-brainer.

And of course, this really is the essence of the matter. Manchin really has spent months in a good-faith effort to win over GOP support for democracy protections that he really does believe are essential to making the system function better.

The only [Republican] senator who has appeared marginally interested in participating is Lisa Murkowski of Alaska. The fact that virtually the entire GOP is uninterested — while GOP state legislatures are passing restrictions on voting everywhere by simple majority — should have weight for Manchin.

Because after all, if democracy reform must be bipartisan, as Manchin says — yet virtually no Republicans will participate, no matter how earnestly Manchin seeks their support — then sticking to that notion is tantamount to allowing Republicans to single-handedly remove democracy reform from the agenda entirely, on a purely partisan basis.

That can’t be acceptable, by Manchin’s own lights.

To be clear, there are still reasons for extreme skepticism that Manchin will ever get to yes. But if he somehow does, these routes might be the way he gets there.

The Disappointing State of Play in the Senate

The Brookings think tank has a page that explains the US Senate’s filibuster. This is a key section:

“Senators have two options when they seek to vote on a measure or motion. Most often, the majority leader (or another senator) seeks “unanimous consent,” asking if any of the 100 senators objects to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader can’t secure the consent of all 100 senators, the leader (or another senator) typically files a cloture motion, which then requires 60 votes to adopt. If fewer than 60 senators—a supermajority of the chamber—support cloture, that’s when we often say that a measure has been filibustered” [meaning the measure won’t be debated, voted on or adopted].

“While much of the Senate’s business now requires the filing of cloture motions, there are some important exceptions. One involves nominations to executive branch positions and federal judgeships on which, thanks to two procedural changes adopted in 2013 and 2017, only a simple majority is required to end debate. A second includes certain types of legislation for which Congress has previously written into law special procedures that limit the amount time for debate. Because there is a specified amount of time for debate in these cases, there is no need to use cloture to cut off debate. Perhaps the best known and most consequential example of these are special budget rules, known as the budget reconciliation process, that allow a simple majority to adopt certain bills addressing entitlement spending and revenue provisions, thereby prohibiting a filibuster.”

Unquote. The upshot is that senators cannot filibuster the two things Republicans most care about, appointing judges and cutting taxes (odd how that worked out). 

To avoid a Republican filibuster, the Democrats are trying to use the budget reconciliation process to pass Biden’s very important Build Back Better act by a simple majority (meaning 50 Democratic “yes” votes, followed by Vice President Harris voting “yes” to break the 50-50 tie). But one Democratic senator still won’t provide the 50th vote the Democrats need. 

They also want to pass voting rights legislation to protect what’s left of American democracy. They can’t use the budget reconciliation process for voting rights, so they need a different way to get around a Republican filibuster. The only way to do that is for the 50 Democrats (and VP Harris) to change Senate rules to make voting rights legislation an exception to the filibuster (in the same way judges and tax cuts are exceptions). But one or two Democratic senators still won’t provide the 49th and 50th vote the Democrats need. 

From today’s Crooked Media “What a Day” newsletter:

With Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) blocking passage of the Build Back Better Act, Senate Democrats have gamely pivoted to the voting-rights legislation also blocked by Manchin and Sinema. Get in, loser, we’re going nowhere in a different direction! 

  • Final negotiations on the reconciliation package appear to have ground to a halt, as Manchin’s objections to temporary programs (including the temporary child-tax-credit extension) and overall price tag thwart Senate Majority Leader Chuck Schumer’s plan to get it passed by Christmas. The final monthly payment authorized under the current expanded child tax credit went out on Wednesday; Congress would need to extend the program by December 28 to keep the payments on track in January. 
  • Anxious to get something done, some Senate Democrats have announced a new push to pass their elections bill, despite still needing unanimous agreement on changing filibuster rules to do so. Schumer said on Thursday that he hopes to get voting legislation passed “in time for the 2022 elections,” tacitly acknowledging that there’s no way a bill makes it to President Biden’s desk before the end of the year. 
  • On the one hand, Sen. Raphael Warnock (D-GA) made a terrific point on the Senate floor this week, after lawmakers approved a filibuster [exception] to raise the debt ceiling: “I believe that it is misplaced to change the Senate rules only for the benefit of the economy when the warning lights on our democracy are flashing at the same time. I happen to believe that our democracy is at least as important as the economy.” Hard to fault that logic!

On the other hand, there’s no indication that Manchin and Sinema have come around to the rule changes necessary to pass the bills they say they support. 

  • Manchin indicated on Tuesday that he’s still not open to reforming the filibuster to pass voting-rights legislation unless there are Republican votes to do so, to the gleeful cackles of Republicans everywhere. A Sinema spokesperson ruined everyone’s holidays by announcing Wednesday that she “continues to support the Senate’s 60-vote threshold,” though Democrats are discussing narrow filibuster reforms and not outright abolition, so it’s worth noting that Sinema’s office also called for “the Senate to publicly debate its rules, including the filibuster, so senators and all Americans can hear and fully consider such ideas, concerns, and consequences.” It’s not, like, a lot of hope, but at this point we’ll settle for vaguely hope-scented. 
  • Schumer may not have an obvious plan to get voting bills passed before the midterms, but he’s right to want to. Democrats may have owned themselves out of their House majority by refusing to gerrymander as aggressively as Republicans in the handful of states where they had the chance, in the absence of redistricting reforms. The decision of just five blue states—California, Colorado, New Jersey, Virginia, and Washington—to switch over to nonpartisan redistricting commissions will cost House Democrats 10-15 seats, according to trusted redistricting nerd Dave Wasserman. It’s entirely possible that Republicans will gain control with a smaller margin than that.

To quote Sen. Mazie Hirono (D-HI) this morning, “a 50-50 Senate sucks and we can’t get things done.” Rather than unconvincingly pretending otherwise until it’s time for another vacation, Senate Democrats might as well be clear about the fact that two of their members are abetting the GOP assault on democracy, and at some point make them go on the record about it.

Good News, Yes, Good News

There might be good news coming from Washington. The obvious good news should be the passage of the Build Back Better Act in some form or other. Last month, Reuters used seven categories to summarize what’s in the bill (the details of which are all subject to change):

  1. Climate
  2. Education
  3. Family Benefits
  4. Healthcare
  5. Housing
  6. Immigration
  7. Taxes
  8. Other

Its passage after months of negotiation between the best and worst Democrats in Congress will be a very good thing (Republicans are opposed to progress and fairness so will all vote against it).

Meanwhile, Senate Democrats are working on changes to the filibuster. That would allow them to pass some kind of voting rights legislation over the usual Republican opposition. From Politico:

The latest attempt is taking place among a group of Senate Democrats who have gone back to the drawing board. Rather than the draconian step of tossing out the filibuster, they’re debating other possible rule changes to the chamber that could pave the way for election reform bills that are viewed by Democrats as paramount to combatting restrictive new voting laws and preserving democracy.

Sen. Tim Kaine (D-Va.), who is a member of the group drafting the reforms, said it would be “premature” to share specifics of the possible rule changes at this stage because “there’s no handshake deal yet.” But he did express a level of cautious optimism, stressing that abolishing the filibuster, which requires 60 Senate votes to advance legislation, is not under consideration this time.

“We’re not going to abolish the filibuster. Joe Manchin (D-W.Va.) has made [it] very plain we’re not abolishing the filibuster,” Kaine said in an interview. “We’re looking at a number of complaints that Democrats and Republicans have had about the way the place operates to see if we can restore it to operating better and do it in a way that would facilitate passage of voting rights.”

Kaine said the group is “analyzing potential rule reforms” by “putting the shoe on the other foot” and asking “If we’re in the minority, how would we feel about this? Can we live under this? Would this make the Senate work better for either party under a president of either party?”

The latest conversations come after four failed attempts by Democrats to pass voting or election reform bills in the Senate due to a [Republican] blockade. The hope within the party is that once President Joe Biden’s social spending plan is passed, they can prioritize voting rights and present a pathway to get it through the Senate. . . . 

The effort is expected to come to a head as early as January, according to multiple senators involved. . . . 

Ideas being floated . . . include changes to the amendment process and how the Senate debates legislation and nominations. . . . Other options raised by Democrats — and Manchin himself — include a standing filibuster which would require senators to continue debating on the floor rather than needing 60 votes to end debate on a bill. . . . 

Biden has urged Congress to pass legislation that expands ballot access, ends partisan gerrymandering and would restore the pre-clearance authority of the 1965 Voting Rights Act gutted by the Supreme Court. . . . Biden has characterized the moment as an inflection point that poses the “most significant test of our democracy since the Civil War”, as civil rights advocates press the administration to match the president’s rhetoric with urgent action . . .

For months, Democrats have repeatedly run into a brick wall as every GOP senator but one has refused to offer votes for even a restoration of key sections of the Voting Rights Act, a reform Democrats see as a modest step. Republicans have voted for such reauthorizations in the past but their opposition has led an increasing number of Democrats to either endorse a carveout to the filibuster, if not an outright elimination. . .

But Democrats will need buy-in from Manchin and Sen. Kyrsten Sinema (D-Ariz.) — who both oppose nixing the legislative filibuster — if they want to change the chambers’ rules. . . .

Tester said Tuesday that he thinks Manchin and Sinema are “absolutely” open to some of the changes being considered. . . .

Unquote.

On another front, the five most reactionary Republicans on the Supreme Court decided it’s fine to let states ignore the Supreme Court and the Constitution. This is how Chief Justice Roberts, the least reactionary Republican, described the majority’s ruling on Texas’s anti-abortion bounty hunter law:

The clear purpose and actual effect of [the Texas law] has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Justice Sonia Sotomayor wrote:

The Court should have put an end to this madness months ago, before [the law] first went into effect. It failed to do so then, and it fails again today. . . . The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.

Given that a Supreme Court majority has gone renegade, reform is clearly necessary. A former federal judge and a law professor published a column in The Washington Post explaining why they now favor a major change:

We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly. . . . We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court. . . . 

Sadly, we no longer have [confidence in the Court], given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.

Those judicial decisions haven’t been just wrong; they put the court — and, more important, our entire system of government — on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster . . . [We cannot look] other way when the court seeks to undo decades of precedent relied on by half the population to shape their lives just because, given the new majority, it has the votes.

Unquote.

Republicans go too far when they have power. Their overreach invites a Democratic response. Perhaps they’ve done it this time as well. I sure hope so.