President Obama chooses his words carefully. So last July, when he punctuated his eulogy to the civil rights legend John Lewis by calling the Senate filibuster “another relic of Jim Crow”, he wasn’t messing around.
Many others (myself included) had written about the historical link between the Senate rule allowing a minority of lawmakers to kill a bill and the preservation of white supremacy. But Obama’s speech sparked a wholesale rebranding. Today, among progressive politicians and activists alike, “End the filibuster” is out. “End the Jim Crow filibuster” is in.
Yet those who so bluntly tie Senate obstruction to southern segregation are missing an important piece of historical context. It’s not fair to suggest that the filibuster championed by defenders of Jim Crow decades ago is identical to the filibuster championed by Mitch McConnell today. Because today’s filibuster – McConnell’s filibuster – is actually much worse.
To understand how the filibuster became essential, first to southern Democrats and then later to nearly all Republicans, we have to start a little more than 100 years ago. Until 1917, the filibuster allowed any group of legislators, no matter how small, to pass speaking privileges among themselves, holding the Senate floor and indefinitely delaying any bill. But when Senate obstruction threatened to derail America’s military buildup ahead of the first world war, lawmakers changed the rules, allowing a supermajority of senators to break a filibuster and force a vote.
Overnight, the Senate’s balance of power shifted. Tiny handfuls of legislators were now powerless. But blocs of legislators – a few dozen senators willing to grind the body to a halt – could still derail nearly any piece of legislation by denying it an up-or-down vote. One cause in particular lacked majority support, yet consistently rallied a sizeable and passionate coalition: opposition to civil rights.
Thus, and largely by accident, 1917 was the start of what can rightfully be called the Jim Crow filibuster. For decades, not a single civil rights bill survived southern Democratic obstruction. Occasionally, Senate leaders would introduce such a bill, fail to overcome segregationist obstruction and then withdraw it. More often, though, senators wouldn’t seriously consider civil rights at all. Rather than encourage “the world’s greatest deliberative body” to debate the issue, the filibuster functioned as a kind of gag rule. Since ending segregation was dead on arrival, why even bring it up?
The Jim Crow filibuster had one obvious effect on the country – protecting white supremacy – but it also had two more subtle effects on the Senate itself. First, by forcing senators to ignore the country’s single most contentious issue, the gag rule created a cherished, albeit disingenuous, sense of decorum. With America’s fiercest battleground off limits, senators felt free to focus on common ground instead. Second, because the majority of senators didn’t want to legitimize Jim Crow’s most effective delaying tactic, they almost never used it. Precisely because civil rights bills were always filibustered, other bills were almost always not.
For much of the 20th century, then, the filibuster forced a corrupt bargain. In exchange for preserving one-party segregationist rule in the south, Americans could enjoy a functional democracy everywhere else. In the Senate, civil rights bills were doomed – but most bills could pass with a simple majority.
But as attitudes and politics changed, the detente became untenable. In 1964 and 1965, liberals overcame fierce obstruction to pass the Civil Rights Act and Voting Rights Act – and in the process broke the filibuster free from its Jim Crow associations. With obstruction no longer linked to segregation, senators became more comfortable obstructing all sorts of legislation. The number of filibusters shot up.
Among those present at the dawn of the filibuster’s new era was a young Senate intern named Mitch McConnell – and more than 40 years later, as Senate minority leader, McConnell would usher in a filibuster era all his own. Obstruction, from both parties, was on the rise before Barack Obama took office in 2009. But McConnell’s scorched-earth strategy, filibustering nearly anything that could be filibustered, was so different in degree as to be different in kind. In a body that runs by precedent rather than formal bylaws, McConnell essentially rewrote the rulebook. Under the new filibuster – the McConnell filibuster – it takes 60 votes to get almost any piece of legislation through Congress.
Which brings us to the essential difference between the obstructionists who defended white supremacy and the obstructionists of today. First, a similarity: just as was the case 75 years ago, the filibuster makes it impossible to pass meaningful civil rights laws. But unlike the Jim Crow filibuster, the McConnell filibuster makes it impossible to pass nearly all other meaningful laws as well.
There are a few exceptions, such as the once-a-year reconciliation process which allowed Trump’s 2017 tax cuts and Biden’s 2021 Covid relief to pass via up-or-down vote. But these outliers only underscore the way in which the McConnell filibuster is an act of legislative self-immolation. What is supposed to be the world’s most august lawmaking body has rendered itself able to pass major legislation either once a year or not at all. The Jim Crow filibuster’s great shame was that it divided America into two separate and unequal nations – one a functional democracy, the other a racist apartheid regime. The McConnell filibuster’s great shame is that it does away with functional democracy nationwide.
And while the Jim Crow filibuster was more morally reprehensible, McConnell’s is a far greater threat to our republic. The institutions essential to our democracy – from our courts to our voting systems to the peaceful transition of power – are under unprecedented assault. As long as the 60-vote threshold remains in place, the Senate provides no meaningful way to protect those institutions. Instead, senators will find themselves trapped in a vicious cycle: it takes a supermajority of senators to defend democracy, yet those attacks make a supermajority of pro-democracy senators ever harder to obtain.
Which is why, while Americans have debated Senate rules for centuries, the stakes are higher than ever. The threat to our democracy is greater. And the solution ought to be bolder. Unlike the pro-democracy activists of the civil rights era, we don’t have time on our side. If we don’t end the McConnell filibuster now, we may never get another chance.
Source: US Politics - theguardian.com
