We Already Got Rid of the Filibuster Once Before

By David Litt, The Atlantic

10 March 21

The House used to have a filibuster too. And when legislators got rid of it, the result was a more democratic, productive institution.

ast week the House of Representatives passed H.R. 1, a bill that would make voter registration automatic, end partisan gerrymandering, strengthen campaign-finance law, and bolster oversight of lobbyists. It’s the most sweeping package of democracy reforms in generations. Yet the mood among most democracy reformers was not giddy excitement but resigned dismay: Although H.R. 1 has passed the House, it remains in the pile of campaign promises—a higher minimum wage, an assault-weapons ban, comprehensive immigration reform, the John Lewis Voting Rights Act, and more—that under current Senate rules need 60 votes or more to pass, an essentially insurmountable requirement in today’s deeply polarized, evenly split legislature.

It’s hardly surprising that a growing number of Democratic politicians now want to end the legislative filibuster entirely, or that Minority Leader Mitch McConnell and his fellow Republicans are rallying to its defense. What is surprising, however, is how few Americans know that we’ve eliminated it before: 130 years ago, after a debate that makes today’s seem placid by comparison, Republican lawmakers got rid of the filibuster—not in the Senate, but in the House of Representatives.

The demise of the House filibuster ought to be better remembered, and not just because it’s one of the most dramatic episodes in American political history. The procedural battle that took place more than a century ago holds an important lesson for lawmakers of both parties today: Ending the filibuster may be messy, but it won’t destroy a legislative body. In fact, in a polarized age, the only guaranteed cure for political dysfunction is majority rule.

Like the Senate filibuster, which was created when then–Vice President Aaron Burr accidentally removed a rule permitting a majority of the chamber to force a vote on a bill, the House filibuster was at heart a procedural loophole. In this case, the trick involved the way that lawmakers took attendance. According to the lower chamber’s original rules, lawmakers who voted “yes” or “no” on a piece of legislation were marked present, but those who did not vote at all were marked absent, even if they were standing on the House floor.

This mattered because, like most lawmaking bodies, the House requires a quorum; without a majority of lawmakers present, the chamber grinds to a halt. If the majority party was able to summon a sufficient number of its own members to Washington, it could pass bills as it pleased. But in a pre-aviation age, when lawmakers were frequently days’ or even weeks’ travel from the Capitol, gathering a quorum was extremely difficult. In many cases, members of the minority party could decline to vote and be marked absent, denying the majority a quorum despite being in the chamber. Just as in the Senate presently, a minority of the House could kill a popular bill by denying it an up-or-down vote.

Political scientists today call this procedural trick “the disappearing quorum.” But in the early 1800s, Americans referred to it with a word derived from the flibustier and filibusteros who pirated the seas on behalf of France and Spain. They called the delaying tactic, or hijacking of the legislature, “the filibuster.”

The House filibuster, which began when the House itself did, lasted roughly a century. Then, in the 1888 elections, Republicans won control of the White House, the Senate, and the House for the first time in nearly two decades. In theory, the GOP could finally pass its ambitious agenda. But because its majority in the lower chamber was extremely small—just three votes—Democrats could deny a quorum nearly any time they chose. At the turn of the 20th century, partisan polarization was almost as bad as it is today, which meant that the assumption back then was the same as it is now: The minority party would use the filibuster to completely derail the majority’s legislative agenda.

What no one anticipated, however, was a legislator as devoted to getting rid of the filibuster as Speaker Thomas Brackett Reed. A 6-foot-3, 300-pound Civil War veteran who favored walrus mustaches and all-black attire, Reed first made his name in Congress as a spouter of witty one-liners during debates. But his real genius lay in understanding the House’s rules. Although Reed cherished the lower chamber as an institution, he became convinced that if a minority of lawmakers could kill a bill without allowing a vote on it, the House would become, in his words, “a tyranny.” He grew confident that, because the House rewrites its rules from scratch for every new legislative session, he could eliminate the filibuster with a single, bold stroke. Perhaps most important, he decided that ending the filibuster was worth risking his career over.

“I had made up my mind,” he later said, “that if political life consisted of sitting helplessly in the Speaker’s Chair and seeing the majority helpless to pass legislation, I had had enough of it and was ready to step down and out.”

So at the start of the 51st Congress, Reed did something radical: He took attendance. After introducing a controversial bill that he knew would be filibustered, Reed began a roll call of yeas and nays in alphabetical order, starting with Texas’s Joseph Abbott and ending with Ohio’s Samuel Yoder. This would have been unremarkable, except for one unprecedented change to House procedure: If a lawmaker was physically inside the chamber, Reed marked him as present, whether he voted or not.

Reed’s gambit was a leap into the parliamentary unknown. The disappearing quorum had always been a feature of the House of Representatives, and many members believed, or claimed to believe, that the filibuster was essential to the chamber. When Democrats realized what Reed was attempting—not just to pass a piece of legislation, but to impose majority rule upon the entire legislative body—they rushed to object.

“I deny your right, Mr. Speaker, to count me as present,” protested Kentucky’s James McCreary.

“The Chair is making a statement of fact that the gentleman is present,” replied Reed. “Does he deny it?”

One reason Reed remained calm throughout the exchange was that he knew he was on firm procedural ground—his critics could condemn him, but they lacked the parliamentary power to stop him. Democrats soon figured this out as well. With the disappearing quorum suddenly unavailable to the minority party, its desperate members tried denying a quorum the old-fashioned way: by fleeing the House floor en masse. One lawmaker, Constantine B. Kilgore of Texas, kicked down a door and escaped. But the rest of his Democratic colleagues were blocked by locked exits or found hiding under their desks. After order was restored in the chamber, debate resumed. The furious denunciations that followed make today’s filibuster debate look measured by comparison; one member called Reed’s roll call an act “as violent as was ever witnessed in any parliament.” But after four days of furious speechmaking, Democrats had no choice but to move on. The procedural battle of the century was over. Reed had won.

The filibuster’s defenders warned that the end of the filibuster would fundamentally change the House, and they were right. With partisan control of the chamber no longer threatened by obstruction, party leaders became far more influential. Speakers—not just Reed, but his successors as well—consolidated power at the expense of individual members.

The House also took a populist turn. When tabloid-fueled jingoism swept the country a few years later, America declared war on Spain. This likely would not have happened if anti-war lawmakers, Reed among them, had been able to deny their pro-war colleagues a quorum. It seems likely that eliminating the Senate filibuster today would have similar effects, consolidating power in the hands of the majority leader and making the chamber more susceptible to the fickleness of public opinion.

But despite these caveats, it’s hard not to view the end of the House filibuster as anything but a success for democracy. The 51st Congress, expected to accomplish next to nothing, instead became one of the most productive in history. With full control of government, Republicans passed the Sherman Antitrust Act to rein in big business; established land-grant colleges for Black students in the South; expanded pensions for Civil War veterans and their families; laid the foundation for the National Parks Service; created the beginnings of the federal immigration system; granted statehood to the Dakotas, Montana, Washington, and Idaho; and much more.

Even more telling than the accomplishments of the 51st Congress were the decisions made by the Congresses that immediately followed. In 1891, Democrats regained control of the House and reversed Reed’s rule changes—but Reed, now minority leader, used the reinstated filibuster to such frustrating effect that his opponents had no choice but to re-abolish it two years later. As Reed himself described it, Democrats’ about-face was “a more effective address than any I could make.”

With that full capitulation, the existence of the House filibuster, once so crucial to the chamber, began its slide into obscurity. Today, the laws passed by the 51st Congress continue to shape American life. Yet the procedural debate that made those laws possible—and sent lawmakers running for the exits—is forgotten, even to many of the filibuster’s staunchest defenders today.

Perhaps this is the most important lesson a 130-year-old parliamentary battle holds for lawmakers in 2021: If we end the Senate filibuster, our descendants are unlikely to find themselves longing for its return. If anything, they’ll be surprised that such a bizarre and anti-democratic practice was allowed to hold back progress for so long.

We May Be One Election From Permanent Minority Rule

By Peter Certo, In These Times

10 March 21

Donald Trump has been defeated, but American democracy remains in peril. Here’s how we can reverse the trendline.

resident Donald Trump was impeached for inciting a mob to violently overturn the 2020 election. He failed. Now, Republican officials across the country are openly radicalizing against democracy by attempting to codify Trump’s efforts.

In dozens of states, with little media scrutiny or public debate, the GOP is introducing bills with the express intent of rigging elections, disempowering voters and setting itself up for minority rule. And given how creaky our political institutions have become, the GOP is well on its way to stealing the next election?—?and perhaps every one after that.

This effort is perhaps an even greater emergency than Trump’s attacks on the 2020 election results. Unless social movements pressure Democrats to act now, both could be locked out of power for generations to come.

Republicans are accelerating their crackdown on voters

The Republican Party has been rolling back voting rights at a state level for years, but those efforts have accelerated since the Supreme Court gutted the Voting Rights Act in 2013. Following that decision, Republican-controlled states have enacted wave after wave of strict voter ID laws, closed thousands of polling sites, and as one federal judge put it, targeted voters of color with “almost surgical precision.”

Trump’s war on the 2020 election supercharged this process. Since November, the Brennan Center for Justice calculates that Republican lawmakers in 33 states have introduced at least 165 new bills to curtail voting rights in dozens of states.

In Pennsylvania, Georgia, and Arizona, where Biden narrowly beat Trump on the strength of absentee ballots, the GOP has moved to end no-excuse absentee voting altogether. Republicans in these and many other states are also demanding more stringent voter ID and signature matching, even though evidence of voter fraud is virtually non-existent.

Because historic mobilizations allowed Democrats to recapture the Senate, Georgia Republicans have systematically targeted Black voters, as Ari Berman reports in a crucial new feature for Mother Jones. In a state that already had 10- and 11-hour lines to vote in Black precincts, lawmakers are seeking to greatly restrict early voting?—?measures that include closing polls on the Sundays before elections, days many Black churches lead get-out-the-vote drives.

As Common Cause Georgia Director Aunna Dennis tells Berman, “This bill is Jim Crow with a suit and tie.”

The Electoral College makes voter suppression much more effective

President Joe Biden won 7 million more votes than Trump in 2020, but Biden’s real margin of victory was much, much narrower. Why? Because the popular vote doesn’t decide presidential elections?—?the Electoral College does. And most states award their entire slate of electoral votes to whichever candidate comes out ahead, no matter the margin.

The way these votes are counted privileges smaller, whiter and predominantly Republican-leaning states. A vote in lightly populated Wyoming, for instance, carries far more weight than a vote in densely populated California. Meanwhile, a razor-thin victory in swing states like Wisconsin or Pennsylvania means the losing candidate walks away with nothing.

Over the past three decades, this system has overwhelmingly favored Republicans, who have held the White House for 14 years despite winning the popular vote only once. But even these numbers understate the Democrats’ structural disadvantage. Biden’s 7 million-vote victory in 2020 won him no more electoral votes than Trump’s popular vote defeat of 3 million in 2016.

Just over 40,000 votes in Arizona, Wisconsin and Georgia determined the 2020 election. With margins this narrow, voter suppression in even a few states can have a massive impact.

Some Republicans want to toss out election results altogether

Republican authoritarianism goes well beyond voter suppression. When the GOP lost gubernatorial races in North Carolina in 2016, and Wisconsin and Michigan in 2018, state officials used gerrymandered majorities to strip newly elected Democrats of their powers.

In other cases, Republicans used these rigged majorities to undermine or overturn voter-decided election reforms, such as enfranchising former convicts in Florida and redrawing legislative districts in Michigan. Now, after losing the White House in 2020, the GOP is growing increasingly brazen.

In states like Wisconsin, GOP lawmakers want to split state’s electoral votes by congressional districts, which have been drawn in their favor. That means that, even if Biden were to win Wisconsin again in 2024, he might lose several electoral votes to the Republican candidate. At the same time, GOP lawmakers are pushing to abandon this system in Nebraska—because Biden won a single electoral vote there in 2020.

Perhaps most outrageously, one Arizona bill would let Republican state lawmakers throw out the popular vote altogether and cast the state’s presidential votes themselves. In Pennsylvania, where judges rejected a Republican effort to toss Biden’s 2020 state victory, lawmakers in a gerrymandered GOP legislature are pushing for more control over judge appointments—a clear sign they hope to try again with a friendlier court.

Similar types of bills are likely to surface in more states. Should these bills pass, Republicans could lose the same states they lost in 2020 and win in 2024.

Republicans are already absurdly overrepresented in Washington

How could Biden or another Democrat overcome these handicaps? They would need to run up even bigger popular vote margins and win even more states. To do that, they would have to rebuild the base of their party by increasing union membership and creating a pathway to citizenship for immigrants.

Ending the pandemic, raising wages and improving healthcare would improve the standing of the Democratic Party. But even good governance may not be enough to reverse the country’s anti-democratic trendlines.

Consider the Senate, where 50 Democrats represent 40 million more people than the 50 Republicans. Thanks to the arcane filibuster, it takes just 41 of those Republicans?—?representing just over 20% of the U.S. population?—?to block Democrats from passing most legislation.

Republican Sen. Minority Leader Mitch McConnell (Ky.) spent weeks using the filibuster to block newly elected Democrats from their committee seats, and there’s every indication he will use the same tactic to quash new laws regulating everything from labor conditions to carbon emissions.

On the House side, a fresh round of gerrymandering this year could put that chamber out of reach for Democrats even if they earn millions more votes nationally than the GOP. Democrats currently hold a nine-seat advantage, but Republicans will get to redraw at least 188 districts this year. Many are in vote-rich states like Texas, Florida, Georgia and North Carolina, all of which have long histories of voter suppression.

It’s not difficult to envision McConnell and company easily blocking Biden’s agenda and Republicans retaking the House, Senate and White House in the next two election cycles. And thanks to gerrymandered state legislatures and Trump’s packing of the federal courts, the GOP could be well on its way to near-permanent minority rule.

Eliminate the filibuster. Expand voting. Curb gerrymandering. Add new states

We may not be able to change the Republican Party, but we can change the political institutions it has deftly exploited.

Ideally, we’d toss out the Electoral College and restructure the Senate. Both have their constitutional roots in compromises designed to protect slaveholders, and both have warped our democracy. But amending the Constitution would require votes from the GOP, the very party that’s currently gaming the system.

So what to do?

An obvious first step is to eliminate the filibuster, which is not mentioned anywhere in the Constitution. With a simple majority vote (plus Vice President Kamala Harris), Senate Democrats could set a new Senate precedent.

The demand to end the filibuster is growing in popularity among progressive groups, 60 of which recently wrote Senate Majority Leader Chuck Schumer (D?N.Y.), calling on him to scrap it. The only obstacle may be the Senate Democrats themselves.

While progressives like Sen. Bernie Sanders (I?Vt.) now support ending the legislative procedure, more conservative Senators like Kyrsten Sinema (D?Ariz.) and Joe Manchin (D?W.V.) have vowed to oppose such efforts (although the latter recently expressed an openness to filibuster reform.)

Biden is also said to be reluctant to end the filibuster.

Democrats might, then, consider weakening the filibuster, without eliminating it. As it stands, 60 votes are required to stop a filibuster; this number could simply be reduced. Or, perhaps the filibuster could be suspended for votes on expanding voting rights or admitting new states. Senators already can’t filibuster court nominees or budget reconciliations (such as the most recent Covid-19 relief package), so there is plenty of precedent for this move.

With the filibuster gone or limited, the next priority must be passing the For the People Act.

Already passed this year in the House, the For the People Act would greatly modernize voter registration, restrict the voter purges that have become commonplace in GOP-controlled states, expand mail-in voting and restore the civil rights-era Voting Rights Act, among many other measures.

The bill would also restrict the partisan gerrymandering that’s become the norm across the country—particularly in Republican-controlled districts. The practice has already rendered many states essentially non-democracies. (In my home state of Ohio, Democrats typically win between 40% and 50% of the statewide vote, but hold just four of 16 congressional seats?—?and may lose one of those after redistricting.)

The bill also contains a laundry list of reforms that social justice activists have promoted for years. Because it has virtually no Republican support, it will only pass the Senate if the filibuster is successfully neutralized.

Getting more voters to the polls will help, but Republicans will still remain vastly overrepresented in both the Senate and the Electoral College. The only solution, then, may be to add more states to the union.

While a few creative thinkers have proposed breaking California up into seven states, it might be more realistic to offer statehood to the millions of U.S. citizens living in different districts and colonial territories without federal representation. These include the approximately 700,00 residents of the District of Columbia (which does have three electoral votes, thanks to the 23^rd Amendment) and the more than 3 million U.S. citizens in Puerto Rico.

The same is true of other overseas territories such as the Virgin Islands, American Samoa, Guam and the Commonwealth of the Northern Mariana Islands, none of which are represented in Congress or can vote in a presidential election. (Virgin Islands Delegate Stacey Plaskett helped manage the Democrats’ last impeachment proceedings despite being unable to vote in the trial itself.)

If the residents of these islands vote to join the union, Democrats should welcome their entry. A basic commitment to democracy demands it. (As colonial territories, they should also be allowed to choose independence, a subject for another column.)

If Republicans succeed in imposing minority rule, it won’t just make addressing crises like climate change and economic inequality through democratic means impossible. It will also presage a massive crackdown on activism of all kinds. Republican state officials have already passed laws making it a felony to nonviolently protest new fossil fuel infrastructure, as my colleagues at the Institute for Policy Studies have documented. In these states and others, the GOP has also pushed laws protecting drivers who ram their cars into Black Lives Matter protesters.

The future of elections and the future of social movements are in grave jeopardy. Given the stakes, grassroots activists must push Democrats to swiftly and decisively fight back?—?if not for their constituents, then for their own political prospects.

If Democrats fail to act now, American democracy?—?and millions of lives?—?could be at stake.