For most of American political history, the use of Senate filibusters, and efforts to kill them, were rare, obscure, and mostly uninteresting. Prior to 1964 (the year the Civil Rights Act passed), the Senate had voted only five times to “invoke cloture,” the maneuver requiring a supermajority, which cuts off debate. Then in the 1950s and early 1960s, as pressure for civil-rights legislation steadily rose, the Senate’s southern members (led by Georgia’s Richard Russell) regularly deployed the filibuster to stop civil-rights legislation. The notoriety of this obstructionist device (enhanced by such sensation-grabbing moments as Strom Thurmond’s record 24-hour filibuster in 1957) made it increasingly unsavory.
The South’s filibuster-based veto power over civil rights ended when bipartisan Senate leaders, spurred by President Lyndon Johnson and public opinion, managed to muster the votes needed to invoke cloture on the 1964 bill. But the memory of this rules-based resistance lingered, leading in 1975 to a reduction in the number of votes needed to end a filibuster from 67 to 60.
But the use of the filibuster (or the threat thereof) metastasized in recent decades, reaching its peak as a de facto supermajority requirement for all Senate activity during the Obama administration, as Republican leader Mitch McConnell chose a strategy of total obstruction. Because the country cannot function without executive and judicial personnel, the two parties, in sequential phases, allowed for cloture by simple majority for confirmations. But with narrowly defined exceptions (notably budget legislation and its important by-product, “reconciliation” bills to implement the budget, which is how Republicans passed their tax bill in 2017 and tried to repeal Obamacare) the filibuster still stands athwart all sorts of very popular legislation that simply can’t pass.
We are in an era, though, when popular pressure for action in some areas blocked by the filibuster is becoming sufficiently urgent that Democrats, at least, are seriously considering killing it off once and for all. In an important contribution to this debate, Ron Brownstein demonstrates exactly how a small entitled minority of the population via its Republican senators is able to use the filibuster to halt any significant action on three issues that are growing to near-existential importance: gun violence, climate change, and immigration. He ranks states according to their levels of gun ownership, their carbon emissions (typical of energy-producing and manufacturing states), and their immigrant populations. Turns out the states with lots of guns, lots of emissions, and few immigrants, have a hammerlock on the Senate:
Of the 30 states that emit the most carbon per dollar of economic activity, 26 also rank in the bottom thirty for immigrant population. Twenty-three of the high carbon states also rank in the top 29 for gun ownership.
In all, 20 states meet each of these thresholds as high carbon, low immigrant, and high gun-places: Wyoming, Montana, Utah, North Dakota, South Dakota, Kansas, Oklahoma, Iowa, Indiana, Wisconsin, Kentucky, West Virginia, Tennessee, Louisiana, Arkansas, Alabama, Mississippi, South Carolina, and Alaska.
Of the 40 Senate seats across these states, Republicans now hold 36 of them, which comes close to the 41 votes needed to sustain a filibuster on any of these issues.
Republicans also hold all four Senate seats in two other solidly GOP states that meet the criteria for low immigration and high carbon output but not high gun ownership — Nebraska and Missouri.
The 22 states with 40 Republican senators who are unlikely to let the majority (even if it’s backed by the House and the president) have its way on such issues “contain only about 70 million people, only about one-fifth of the national population.” It just doesn’t matter what the other four-fifths of Americans want.
Now, it’s entirely possible that even if Democrats get rid of Donald Trump and hang onto control of the House, Mitch McConnell will remain the implacable master of the Senate, in which case any effort to kill the filibuster will probably go nowhere. But if Democrats do pull off a trifecta and control the Senate, too, any hopes they have for legislation on gun violence, climate change, or immigration almost certainly depend on radical filibuster reform.
This is why the Senate’s rules have become a presidential campaign issue for Democrats. As I noted recently, the candidates are all over the place on filibuster reform:
According to a Washington Post analysis, candidates committing to radical filibuster reform include Elizabeth Warren, Steve Bullock, Jay Inslee [who has since withdrawn from the race], and Seth Moulton. Michael Bennet, John Delaney, Bill de Blasio, Tim Ryan, and Joe Sestak want to keep things as they are. Six of the seven senators (Cory Booker, Kirsten Gillibrand, Kamala Harris, Amy Klobuchar, and Bernie Sanders) are “open” to killing the filibuster, but haven’t committed to doing so. And Joe Biden is listed as “unclear,” though he did say in Iowa last week that getting rid of the filibuster would be “very dangerous,” which sounds like a “no” to me, particularly given his anachronistic belief that the Senate just needs some loving care to resume its old bipartisan ways.
Those who want action on guns, climate change, and immigration need to pay very close attention to Senate races next year, and then start raising holy hell for filibuster reform in 2021 if Democrats win the Senate. It may well require the same combination of moral outrage and raw political will that was necessary to crush segregationist resistance to civil rights in the Senate over a half-century ago. But if large-D Democrats aren’t willing to take this step, then we might as well admit this country is not a small-d democracy.