The Filibuster's Ugly History and Why It Must Be Scrapped

By Sean Wilentz, Rolling Stone

19 March 21

The filibuster is no cornerstone of senatorial greatness. It is an accident that has spun out of control

he case for ending the Senate filibuster rule is based not on simple partisanship but out of concern for American democracy. Partisanship becomes a problem when normal political parties place narrow self-interest so far above all other considerations that the nation obviously suffers as a result. And, in truth, both parties have long deployed the filibuster — the provision in the Senate’s rules that effectively requires a supermajority of senators to guarantee passage of most legislation — when they find themselves in the minority. In normal times, the parties have normalized the filibuster, to the point where it appears to be a natural feature of the Senate’s operations.

In fact, however, there is nothing natural about the filibuster, and, even more important, the United States long ago ceased to have two normal political parties. For at least 25 years, the Republican Party has been in the grip of a radicalization that had led it from Reaganism — already a departure from the party’s mainline traditions — to Newt Gingrich’s scorched-earth right-wing politics and then to the authoritarian putsch-prone personality cult of Donald Trump. Instead of believing in its own appeal to a majority of voters with anything resembling ideas, the GOP relies on themes of culture-war demagogy, conspiracy mongering, and racial division. Yet even that is insufficient: Lacking confidence in that repertoire of dog whistles, Republicans have now become utterly dependent on gerrymandering and brazen voter suppression.

The Republican Party is a “normal” party only in the sense that the segregationist wing of the Southern Democratic Party before the modern civil rights era was “normal.” Sen. Lindsey Graham of South Carolina, the Trump worshipper, has stated that his idol has some sort of “magic.” The “magic” Graham couldn’t define was the same old dark “magic” that was practiced by his predecessor, Strom Thurmond. Indeed, Republican strategy and tactics, although national rather than sectional in scope, are strikingly similar to those of the old Dixiecrats, reviving and updating the old Jim Crow politics, with restrictive ID laws and election-roll purges taking the place of the poll tax and the grandfather clause — Jim Crow 2.0.

So, these are the stakes at the heart of the current debate over the filibuster. With the tiniest possible majority in the Senate — achieved only by overcoming voter suppression in Georgia — and just a razor-thin majority in the House, the Democrats have a very small window for achieving reforms that might reverse the greatest attempted subversion of American democracy since the violent overthrow of Reconstruction. To say that killing the filibuster will come back to haunt the Democrats, as Republicans are wont to do, is to miss the severity and immediacy of the crisis. As the party of a sitting president usually suffers losses in midterm congressional elections, there’s certainly a strong possibility that the Republicans will regain the House or the Senate, or both, in 2022. But unless checked right away, Republican-controlled state legislatures will be hell-bent on curtailing voting rights and turning probability into certainty — and then imposing Jim Crow 2.0 as the law of much of the land. To paraphrase Abraham Lincoln at another moment of maximum danger for democracy, the tug has to come, and better that it should come now instead of later.

Without losing his cool, President Joe Biden has learned from the wishful thinking of Barack Obama, who believed Republicans would listen to reason only to discover they were determined to wreck him. Republicans, in their lockstep opposition to the historic $1.9 trillion pandemic relief and stimulus bill, have proved true once again to their obstructionist nihilism. This time, of course, their obstruction failed, but only because the bill, a revenue measure, was open to a process known as reconciliation, whereby simple majorities in both houses of Congress are sufficient to win passage. With the filibuster intact, most of the rest of Biden’s program will require a 60-vote supermajority to pass the Senate. And although some important measures might conceivably win the backing of the required 10 Republican senators (assuming Democratic unanimity), others plainly will not, above all the crucial measures H.R.1 and the John Lewis Voting Rights Bill.

H.R. 1 is a large piece of legislation, known as an omnibus bill, which provides numerous fundamental reforms in our voting system: easing, not restricting, voter registration; protecting the system from hacking and outside interference; and shining a light on the dark-money contributions concealed by current laws. The Lewis Voting Rights Bill authorizes targeted review of voting changes in jurisdictions across the country, focused on eliminating methods deliberately aimed at discriminating against racial minorities. It would be a formidable obstacle to the wave of pending Republican-sponsored voter-suppression legislation, amounting to, at the latest count, some 253 separate proposals in 43 states.

Together, H.R. 1 and the John Lewis Bill would bring the most sweeping reform of our electoral laws since the Voting Rights Act of 1965. Yet far from radical, the proposals seek mainly to correct for the regression on voting rights and open elections in recent years, as inscribed in the retrograde Supreme Court Shelby County and Citizens United decisions that have gutted both the original Voting Rights Act and public accountability for private megadonors. The reform bills should be properly viewed as truly conservative measures, taking voting rights back to where the civil rights movement of the 1960s had taken them. Not surprisingly, though, Republican pseudo-conservatives have blasted the reforms as “a threat to American democracy” (the Heritage Foundation) and “a power grab” designed to create “a permanent partisan majority” (Texas Republican Sen. John Cornyn). The word “conservative” has lost its meaning when Republicans use it.

In short, so long as the filibuster remains in place, the bills are almost surely D.O.A. in the Senate. Remove the filibuster, however, and the chances for passage are strong.

The repeal of the filibuster should thus be a no-brainer for Democrats. Why hand Republicans the cudgel to protect red-state legislators’ efforts to secure and entrench GOP control built on minority rule? As repeal involves changing the rules of the Senate and not a piece of public legislation, it requires only a simple majority to pass. Yet at least two Democratic senators, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have so far resisted, claiming they want to encourage bipartisan cooperation in a hyper-polarized time. Repealing the filibuster, Sen. Sinema says, “runs contrary to the deliberative nature of the Senate, and would afford too much power to the majority party.” Senator Manchin, meanwhile, has stated he wants to make the filibuster “painful” to use. So, the door to change slowly opens.

The claim that without the filibuster the majority party would have too much power is bizarre on its face: Getting rid of the filibuster would not be giving the majority any more power beyond the power it enjoys by virtue of being the majority. The other complaint, that the filibuster is somehow fundamental to the Senate’s institutional core, is historically groundless. The filibuster is no cornerstone of senatorial greatness. It is an accident that has spun out of control.

The framers of the Constitution made absolutely clear that they favored strict majority rule in legislative matters. In “Federalist 22,” Alexander Hamilton described making a supermajority “requisite to a decision” as a kind of “poison” that subjected “the sense of the greater number to that of the lesser.” Still, the Constitution left it to the members of the House and Senate to devise their own rules for their respective chambers. At first, both houses heeded Hamilton’s wisdom, adopting what was known as the “previous motion” rule that permitted a simple majority of voting members to end debate. For nearly 20 years, the Senate got along well enough under the rule. Senators sometimes turned tactically verbose to delay action on a bill, but not so much that the previous motion was invoked very often. Then Hamilton’s archrival Aaron Burr, the vice president of the United States, got into the act.

In March 1805, Burr, under indictment for killing Hamilton in a duel a year earlier, stepped down from the vice presidency and delivered an emotional and highly praised farewell speech to the Senate. Along the way, reflecting on his years overseeing the Senate, he described the body’s rule book as a mess, filled with redundant and otherwise needless regulations, and he singled out the little-used previous-motion rule. The following year, the Senate abandoned the rule, not because the members wanted to find a way to become more deliberative, nor because they wanted to enable the minority to obstruct the majority, but because Aaron Burr, in a digression on housekeeping, told them they should, with no motive beyond the procedural.

The Senate now lacked any means to cut off debate, but the rise of the filibuster — the word derived from the Spanish filibustero, or “pirate” — came only in the years preceding the Civil War, when individual members would attempt to hold the Senate hostage by refusing to yield the floor for hours on end. At one critical moment, in July 1841, the powerful Henry Clay of Kentucky attempted to halt a debate over a bill he favored to charter a new national bank with a simple majority vote, provoking William King of Alabama to threaten a grandstanding filibuster: Clay, he remarked, should “make his arrangements with his boarding house for the winter.” The threat worked, and Clay backed down.

After the Civil War, Senate leaders from both parties tried to get rid of the practice but failed, as those opposed would simply filibuster the proposal to death. In 1917, when filibusterers threatened a bill supported by President Woodrow Wilson that would arm merchant vessels in the run-up to America’s entry into World War I, the Senate instituted the first so-called cloture rule, requiring two-thirds of all members present to close debate. Thereafter, though, the cloture rule could not stop southern Democrats from mounting the most notorious filibusters of all, blocking anti-lynching bills and every-other-variety civil rights measure from the 1930s until 1964, when President Lyndon Johnson finally engineered the breaking of the filibuster that threatened passage of his landmark Civil Rights Act, resorting to every legislative trick in the book to force unwilling senators into line. (Not that the filibustering of civil rights measures has ended: Sen. Rand Paul of Kentucky, for example, sidelined the Emmett Till Anti-Lynching Bill in 2020.)

Several modifications of the filibuster have followed since the 1960s, most importantly, in 1975, a reduction of the number to three-fifths (or 60 members in the current Senate if all senators are present). Most recently, exceptions have been carved out regarding spending bills and the approval of executive-branch positions and federal judges. Yet even as the Senate has relaxed the means to get around a filibuster, the practice itself has become easier to undertake, requiring a simple request from any member, bypassing the need to grandstand on the floor of the Senate for hours on end. Not surprisingly, the number of filibusters, as measured by the number of cloture motions, which began rising fairly steadily in the mid-1960s, has skyrocketed in the deeply polarized 21st century. By grinding action to a virtual halt, the easily-invoked filibuster has virtually robbed the Senate of its legislative function. Thanks to the gridlock, the august job of U.S. senator has never before been so useless.

In all, there is nothing especially deliberative about the filibuster, which has always been a tool of obstruction. Calls for its elimination are nothing new. As politics have become toxic with the radicalization of the Republicans and asymmetrical polarization, its destructive anti-democratic power has intensified, even after the Trump catastrophe that culminated in the January 6^th insurrection at the Capitol. In the current crisis of democracy, with so many of our basic constitutional and majoritarian norms under attack — including the right to vote, the most fundamental democratic right of all — it is absurd to protect the filibuster as some sort of venerable guardian of sound government. In reality, the filibuster is nothing more than Aaron Burr’s haphazard folly, a well-intentioned mistake that for far too long has impeded the majority will in the name of deliberative democracy. It is time to get rid of the filibuster and allow Alexander Hamilton to finally triumph over his nemesis Burr, freeing the Senate once and for all from the “poison” of minority rule. There may not be a next time.