The Senate filibuster, with its long and often shameful history of anti-democracy, has spilled out into the country at large.
Whether or not, and by what means, the filibuster is done away with, or at least minimized, in the Senate, the “filibuster culture” must be done away with in our society, or else the poison of Trumpism and the insurrection it spawned will only strengthen and grow, until the forces of anti-democracy, for whom the Senate filibuster is the best friend, ultimately win.
And before anyone raises the objection of “well what about the Democrats?” yes, of course, both sides have overused, abused and perverted the filibuster, plenty of blame to go all around for those of you who like to keep blame-game score cards at home, and while I argue that Trumpism is the Republican societal offshoot of “filibuster culture,” the worst and most extreme excesses of cancel culture are the Democrat contribution to societal “filibuster culture.” But I am getting ahead of myself.
Let me take one step back from punditry to go over a little bit of history. Trust me, this is not boring history, like you suffered through in history class where they made you memorize dates and made you yawn your way through the heartwarming story of George Washington and the cherry tree and the “I cannot tell a lie.” No, not that kind of history. The true story history of the filibuster is stranger, sillier, stupider, and tragically dangerously amusing, in much the same way Trumpism was tragically dangerously amusing.
The “filibuster,” as you probably know, is the name given to the process where a small number of Senators (with present rules, precisely 41 of them) can block, delay, and ultimately kill a piece of legislation in the Senate. Technically, in terminology, what we are really talking about is the need for a “cloture” vote, meaning if somebody objects to legislation (and in the modern Senate, somebody is going to object to any legislation), there needs to be enough votes for cloture (60 Senators) to end debate (or now in practical terms end the mere threat of a filibuster) and allow an actual opportunity for an actual vote on the floor for a piece of legislation, where it is then majority rules (you know, that thing called “democracy,” remember that?) and 51 votes is all that is needed to pass it into law.
Now here is the strange/silly/stupid fact of history:
The filibuster was not created by the Founders, is not in the Constitution, was not in any way a part of the thought process when the Senate was created and began its work. The filibuster came into existence not by design but by accident due to a clerical oops. Only in America right?
In 1806, Vice President Aaron Burr noted that Senate rules were a mess and many rules were redundant, and he remarked that the Senate should get rid of the “previous question motion” since it seemed to be never used and never needed, so clean the books up and get rid of it. And that is what they did, they got rid of that provision in the Senate rules. The “previous question motion” was the means to formally and officially put an end to debate by a simple majority vote. Rule gone. Door open to unlimited debate, and eventually it much later occurred to some Senators that they could make use of unlimited debate as a means to block a measure: You just talk it to death. The filibuster was born of a bit of clerical housekeeping creating an exploitable loophole. The word filibuster, by the way, derived from the Spanish “filibustero” which means “pirate,” and the Dutch “vrijbuiter” “freebooter.” I’m not making any of this up.
Throughout the 1800s, Senators from both parties tried to ban the filibuster, only to have others filibuster the motion to ban the filibuster.
In 1917, there was some legislation that needed to be passed preparatory to entering World War I, but anti-war Senators filibustered it, so the Senate finally created the first version of the cloture rule (Rule 22, for those geeks who like to take notes) that allowed two-thirds of Senators present to vote to end debate. In 1975, the number of votes needed for cloture was lowered to three-fifths, where it stands now, 60 Senators. It should be noted there are a couple of exceptions to the cloture rules. There is the exception for nominations of federal judges, requiring only a simple majority to end debate, and there is the exception that was written into law limiting the amount of debate on the budget reconciliation process. I am not going to dive too deep into the weeds on this, but I do note one strategic tactic some Senators use to dodge a filibuster is to piggyback a bit of legislation that has nothing to do with budget reconciliation onto the budget reconciliation and thus slip it by. However, there also came to be the Byrd Rule, which limits just how much sneaky piggybacking you can do. Did I mention this was all strange, silly, and stupid? Oh, yes I did mention that.
It is important to note that the history of the filibuster is not just sad, but plainly despicable. The obviously anti-democratic filibuster was the weapon used adroitly and repeatedly for decades to block civil rights legislation. The filibuster was the cornerstone for keeping Jim Crow alive.
In “A Short History of the Filibuster” by Peter Carlson, he notes:
For decades, the House passed bills to outlaw discrimination and protect the right of black citizens to vote, only to watch the bills killed by filibusters in the Senate. In an era when white mobs frequently lynched black people with impunity, Southern senators used filibusters to defeat anti-lynching bills in 1922, 1935, 1938, 1948 and 1949.
He also notes the fact that the longest filibuster in history came in 1957, delivered by Senator Strom Thurmond of South Carolina, a tour de force in which he spoke for 24 hours and 18 minutes. It was, of course, a filibuster against civil rights legislation.
Over its history, and even still today, there are many who still trumpet the filibuster as some wonderful thing devised to protect us from the tyranny of the majority, meant to give a voice to “the little guy” in the minority. History belies the hollow irony of such a claim when far from a tool to protect minority voices, it has been an effective anti-democratic tool to keep black and Hispanic voices down. The filibuster is just as anti-democratic as the Electoral College, which gives more weight and power to small pockets of white voters out of proportion to their overall numbers. And the filibuster is a tool in the Senate, whose membership of course is apportioned in such a way as to grant over-representation to voices who do not speak for the majority of the American population.
But let us take one battle at a time, and leave the discussion for the need to abolish the Electoral College to another day. Today the topic is the filibuster, or more precisely the abuse and perversion of the filibuster.
At least once upon a time, to filibuster you had to stand and speak for hours and hours. Now, you needn’t trouble yourself with that. Anti-democracy has been streamlined and made easy. A bit of legislation is proposed that somebody somewhere in the Sentate doesn’t like, all that is needed is for a Senator to whisper in the hallway “I’ll filibuster it” and unless leadership feels 60 Senator will support the legislation (and what 60 Senators are going to support anything now?) the legislation is dead before it even has a chance to come up for any debate at all, let alone be voted on by our representatives and either pass or fail by majority vote, otherwise know as democracy. Remember democracy?
Many Americans may not know all the nitty gritty of parliamentary procedures, probably never heard of Rule 22, and don’t give a damn about “budget reconciliation” and other parliamentary magician tricks that make possible to sneak a few slightly helpful but mostly weak little bits of legislation by in the dead of night on a Friday. What many Americans do know is that Congress does not work for them, and has not worked for them for decades. Congress does not deliver for them. Congress promises the world….and delivers a small little $600 check, gee thanks. Congress is just an arena where games are played, with lots of speeches, lots of grandstanding, lots of promises they know are not going to be delivered on, and mostly lots of “gotcha” games to try and get the perfect soundbite to run in an ad against somebody to beat them in the next election.
The legislative process in America is now, to borrow the line from Shakespeare “a tale told by an idiot, full of sound and fury, signifying nothing.” And every Founding Father is rolling in his grave at this disgusting paralyzed anarchy in Congress that not a single one of the Founders intended or wished. Checks and balances, yes. Legislative paralysis in the midst of national crisis and a mob desecrating the Capitol, no. That riotous mob and the former President who egged them on to it, they were attempting their own sort of filibuster, to delay and block the certification of a free and fair election.
This “filibuster culture” having spilled out of our petty, dysfunctional and shameful Senate into the society at large must be dealt with. Trump and Hawley and Cruz and others have encouraged the filibuster culture for Republicans. And there are Democrats who encourage filibuster culture via cancel culture.
I don’t want to get into a debate on who is “more to blame.” Emotions get too heated. Because of January 6, and the votes that 147 Republicans cast even after that murderous riot, I admit I am casting a far more angry eye at Republicans right now, but I have never looked with particular fondness upon game-player extraordinaire Pelosi or argument-of-convenience Schumer, either. Plenty of blame to go around, but it is true that filibuster-culture-turned-insurrection rests squarely and unambiguously at the feet of Republicans, while all that lays at the feet of Democrat cancel culture is the occasional person losing their job because they uttered opinions Democrats have unilaterally decreed are unacceptable to be uttered (ummm, free speech? Ah well, nevermind). I do think a filibuster insurrection trumps all other crimes, at least equals the crime of the decades of use of the filibuster to hold down black Americans into a systemic racist ditch that they are still trying to climb out of.
It is time to put an end to anti-democracy. It is a tall order to put an end to anti-democracy in society writ large, but can we at least begin by putting an end to it in the Senate? Get back to the concept that a majority vote carries the day, 51 votes, and not the impossible-to-attain 60 votes? Can we just do that?
Well, technically, no, we cannot. Because a proposal to end the filibuster will be filibustered.
We are not without hope, however. There was something else that happened on January 6 that taught me there is always hope, and that was the news I saw that morning that the State of Georgia elected a Black and Jew to be their representatives in the Senate. To quote Biden in his Inaugural address, “Don’t tell me things can’t change!”
So, even though we cannot completely abolish the filibuster, we can chip away at it, so I am urging our Senate to continue to do just that.
There are Senate rules and then there are things called “Senate precedent” which function effectively like rules of the moment, so there are some parliamentary gymnastics that can sometimes be used by clever people like Schumer (and whatever else he may be, I do grant he is wonderfully clever, just as McConnell was wonderfully diabolically clever) to at a given moment reduce the number of votes needed to end debate. It is tricky, and I will not bore you with any details (although the note-taking geeks are welcome to click that link and then go from there as far down that rabbit hole as they like) but it is possible.
Also there are options to weaken the strength of the filibuster, even if it is not totally eliminated. One could try and propose a ban on filibusters on certain things, and let it be an option on other things. One could try to get rid of the Byrd Rule which limits how much extraneous legislative policy can be piggy-backed into the “budget reconciliation” and let that be used more to do an end run around the filibuster. Also, perhaps requiring a Senator who wishes to filibuster to actually be physically present and talking to prevent an end to debate might decrease how often a filibuster is used or threatened. That has the added bonus of possibly providing amusing entertainment to CSPAN viewers to watch to see how long before he or she collapses from exhaustion. It would at least exact a heavier price, and greater commitment to their supposed cause, if the Senator was required to keep speaking in order to block a vote.
In his Inaugural Address, President Biden said democracy had prevailed. I am sorry, but I beg to differ. Democracy prevails only if the voters, a majority of whom voted for Biden/Harris, who put Democrats at 50 plus 1 in the Senate, who still kept more Democrats than Republicans in the House, get the policy enactments they wished for voted upon and enacted. And down the road, when Republicans secure a winning number of votes from the public, then those voters should likewise get the policies they thereby voted for.
That is what Democracy is. Winners get what they won, and losers accept that they lost and strive to fight another day, in a future election, but do not strive to fight to block the functioning of democracy itself.
Democracy has not yet prevailed in America. Democracy has been ill for several decades, and has been in the intensive care unit since January 6th. Let all who support the concept of Democracy, Republicans, Democrats, Independents, all of us, do all we can to help the patient pull through, and at least be discharged from the ICU, even if the patient must remain in the hospital for a long time yet.