The filibuster and its awful history
This rule has long been used to thwart civil rights laws, as it is being used now.
When President Biden this week recalled his old friend Sen. Strom Thurmond and the former segregationist’s record-setting filibuster against the 1957 Civil Rights Act, my mind flashed back to 1987, when Thurmond, who died in 2003 at 100, schooled me about his feat.
The South Carolina Democratturned-Republican by the 1980s had retreated from his racist views and, as Biden said in his speech in Atlanta on Tuesday, “even Strom Thurmond” supported voting rights bills. Yet Thurmond remained proud of his record for the longest filibuster ever by a lone senator — 24 hours, 18 minutes of standing, literally, against racial justice. He told me he had spent two days sweating in a Senate steam room, dehydrating himself to delay needing a bathroom break that would force him to leave the Senate floor and end his talkathon.
The point of the story for which I interviewed him was that the filibuster had evolved from the rare endurance test into a relatively easy routine, and — unlike Thurmond or the protagonist of “Mr. Smith Goes to Washington” — a bill’s opponents didn’t even need to come to the Senate floor.
Just their threat was enough to block action, forcing a bill’s supporters to muster a 60-vote supermajority to end the nondebate. A Republican parliamentary advisor predicted to me that the trend toward routine filibusters “carries with it something that is not good for the Senate: A bill that doesn’t have 60 votes can’t pass.”
That trend reached fruition some time ago, alas. Which is why, in a polarized Senate of 50 Democrats and 50 Republicans, a pillar of Biden’s agenda — voting rights legislation — all but surely died Thursday.
You don’t have to agree with every provision of the combined Freedom to Vote Act and John R. Lewis Voting Rights Advancement Act to recognize that both the bill’s likely demise and the broader issue of how it was blocked are bad for democracy. First the bill. It was doomed when two pro-filibuster Democrats — Sens. Kyrsten Sinema of Arizona and Joe Manchin III of West Virginia — made plain they wouldn’t back a filibuster exception for the voting rights package, even though they supported the bill itself. Sinema, in a Senate speech echoing Manchin, said doing so over Republicans’ opposition would worsen the “disease of division infecting our country.”
Both senators ignore that it’s Republicans who are spreading the antidemocratic disease, which incidentally the bill was intended to address.
That the legislation is controversial reflects just how radical the Republican Party has become. Five times after the Voting Rights Act became law in 1965, Republicans voted with Democrats to reauthorize and strengthen it. Five Republican presidents, all except Donald Trump, signed the bills. Sixteen current Republican senators supported the most recent reauthorization, in 2006, when the Senate passed it unanimously.
But Republican support has evaporated. In 2013, a conservative majority of the Supreme Court all but gutted enforcement of the Voting Rights Act. It struck down a requirement that the federal government give prior approval to election law changes by state and local governments that have a history of voting discrimination. The justices invited Congress to rewrite the formula for deciding which states should be subject to “preclearance.” Republicans were uninterested.
Since then, and especially since Trump’s Big Lie claim that he was defrauded of reelection, red states have rushed to pass laws restricting access to voting — more in 2021 than any time in the last decade.
As Sen. Angus King of Maine, an independent who caucuses with Democrats, appropriately lamented, “it’s ironic in the extreme” that Republicans in the states enacted their partisan laws by majority votes, yet Democrats in Congress must get supermajority support to “repair damage done to the democracy,” and “to enshrine the principle of bipartisanship here in the Senate.”
But there is no bipartisanship in today’s Senate, which, more broadly, is all the more reason to eliminate the filibuster for the sake of democracy.
Manchin says the threat of a filibuster encourages the parties to compromise. Yet the voting rights bill was his compromise, and he could find just one Republican supporter. Because of the filibuster rule, he needed 10.
The senator also gets the history wrong, telling reporters that the filibuster has been “the tradition of the Senate” from its start. Wrong: Filibusters date to the mid-1800s, and for more than a century were mostly used to thwart anti-slavery, anti-lynching and civil rights bills. Some tradition.
Republican Sen. Mitt Romney of Utah argues that without the filibuster, each party could easily pass its priorities when it had a majority, only to see the laws changed when the other party took control. That sounds like democracy to me. And how better to hold parties accountable for their promises than to judge them on the results rather than partisan gridlock?
Filibuster supporters also say ending it would destroy the Senate’s reputation as “the world’s greatest deliberative body.” Leave aside that only senators think of the Senate that way. Filibusters generally occur on what’s called the motion to proceed to a bill, so a minority of senators prevents it from being debated at all. That’s not how a deliberative body should work.
Some Senate-watchers propose going back to the old filibuster ways, like when Thurmond was forced to talk nonstop.
As it happened, Thurmond did skip out for a bathroom break, the former parliamentarian confided to me three decades later. But no one objected. “The Senate is a clubby place,” the parliamentarian said.
Not anymore. That 1950s Senate is long gone, and now the filibuster should follow.