As Democrats mull a reform or even an abolition of the hoary and disreputable institution of the Senate filibuster, it’s easy to confine the stakes of the debate to desirable legislative items that are currently front-and-center: reforming democracy, fighting climate change, and reforming health care, and other progressive goals that simply cannot get through Congress to Joe Biden’s desk because 41 senators can and will veto every one of them.
Fundamentally, the filibuster (which really didn’t exist in a meaningful sense until the late 19th century) allows any determined Senate minority to resist and in many cases kill legislation it dislikes. Until 1917, with the invention of “cloture,” there was no way to force the end to a filibuster. Still, the filibuster didn’t achieve its full evil flowering as the favored tool for preservation of Jim Crow until between the world wars, and then the late stages of segregation. And it didn’t become a de facto supermajority requirement until a 1970s “reform,” designed to let the Senate function during a filibuster, relieved those using it of the exhausting chore of actually holding down the floor and gabbing incessantly.
But in weighing the value of zapping the filibuster in part or in whole the moment it becomes possible, it’s important to take a longer look at what it has cost the country over the years. While it has been fully available to progressive as well as conservative senators, it has most often been used to defend reactionary institutions and practices, especially those aimed at preserving white supremacy.
In most of the period prior to the Civil War, the desire of Whigs and Democrats alike to maintain southern support, and fears of disunion, forced serial compromises over slavery and the admission of slave and free states without the kind of tactics a real filibuster entailed. But once white southerners regained control of Senate seats from their states after Reconstruction, the filibuster was the instrument for putting a final end to congressional measures to vindicate Black voting and civil rights, as the University of Miami’s Gregory Koger observes:
[D]uring the Reconstruction and post-Reconstruction eras, senators launched filibusters against civil rights bills, deployment of federal troops in southern states, and repayment of income taxes from the Civil War, Koger said.
“The last gasp of Republican efforts to ensure the political rights of southern blacks was the 1890-91 elections bill, which died in a Senate filibuster,” Koger said. “The Republicans were chastened after this last effort. They were surprised by the vehemence of Southern opposition to the bill, and found that northern interest in civil rights was low.”
It wasn’t until 1957 — when southern senators abandoned a filibuster to help their friend Lyndon Johnson take credit for a toothless bill — that the Senate addressed voting rights. They wouldn’t be actually guaranteed until 1965.
White Southern determination to use the filibuster to kill anything remotely like civil-rights legislation became manifest in the interwar period, when on two occasions federal legislation to outlaw lynching, for many decades a prevalent form of racist terrorism, succumbed to the filibuster. The first time was in 1922, when the Dyer anti-lynching bill passed the House and was reported to the floor by the relevant Senate committee before southern Democrats talked it to death. And again in 1938, the Wagner-Van Nuys anti-lynching legislation was filibustered for 30 days before a cloture vote (then requiring two-thirds of senators) failed. Cynically enough, many Republican senators who allegedly favored the legislation opposed cloture.
The End of Jim Crow
By the 1950s, southern Democratic senators (with some support from conservative Republicans) had created a well-oiled filibuster machine against civil-rights legislation under the leadership of Georgia’s racist Richard Russell — for whom one of the Senate’s office buildings is still named. In 1957, they succeeded in stripping the first civil-rights bill they allowed to pass of most of its most significant features (though creation of the Civil Rights Division of the Justice Department remained). This bill was the object of the longest filibuster in history, a 24-hour marathon undertaken by former Dixiecrat presidential candidate (and future Republican) Strom Thurmond of South Carolina.
Russell and his men waged the longest filibuster war ever against the landmark Civil Rights Act of 1964, which ended segregation in public places and banned discrimination on the basis of race, color, sex, or national origin. The filibuster lasted 60 working days and was broken through the determined leadership of Russell’s former protégé LBJ, now president, who swore to dedicate the legislation to John F. Kennedy’s memory, with future vice-president Hubert Humphrey leading the fight on the Senate floor and Republican leader Everett Dirksen supplying crucial late support.
By the time the Voting Rights Act of 1965 came to the Senate floor, 70 votes were available for cloture and a filibuster never really materialized. As late as 1982, however, long after opposition to civil-rights legislation had moved decisively into the Republican Party, Jesse Helms of North Carolina briefly filibustered a Voting Rights Act extension that strengthened its provisions after a Supreme Court decision had required proof of discrimination by the jurisdictions the act covered.
It’s impossible to measure the damage the filibuster did over the years to the causes of equal rights and racial justice, and to innumerable Americans suffering from discrimination and outright oppression. Suffice it to say that the filibuster was the institutional handmaiden of Jim Crow from start to finish, and the old reliable friend of bigots past and present.
A Functioning Senate
A reform of the filibuster in 1974 reduced the the two-thirds vote needed for cloture to a smaller supermajority of 60 votes, but also provided that the Senate could continue to function when facing a filibuster threat (simply putting aside the legislation being filibustered). Since then filibuster has evolved from an occasionally utilized weapon aimed at select areas of progressive legislation to a virtual 60-vote supermajority requirement for major legislation. The number of cloture motions that have proved necessary to keep the Senate functioning has skyrocketed.
And now filibusters are being used to kill not only controversial but highly popular legislation, as Jonathan Chait noted recently: “After the horrifying Newtown massacre, pro-gun Democrat Joe Manchin and Republican Pat Toomey negotiated a handful of concrete steps that had overwhelming public support (including among gun owners), such as background checks for purchasing firearms. The bill died of a Republican filibuster, the brief debate a mere afterthought.”
The surge in items subject to the filibuster has placed a huge premium on the limited avenues available for getting around filibusters. One stratagem has been to package enormous amounts of legislation into must-pass omnibus appropriations bills necessary to keep the federal government functioning. But as more and more controversial “riders” have been attached to such measures, the risk of actual government shutdowns has risen, with disruptions of services occurring in 2013 and 2018-19.
For truly controversial legislation, however, the go-to stratagem forced by the filibuster has been the use of budget reconciliation bills that require only a Senate majority, beginning back in 1981 when Ronald Reagan used the device to package and enact much of his legislative agenda. The process, which also has streamlined rules on debates, was subsequently used by George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and Donald Trump, and Democrats are currently in the process of making it available to Joe Biden as well.
While reconciliation has proved to be an effective and indeed indispensable way to get around the filibuster in recent years, it severely limits legislative options, and has a distorting effect on the provisions that do make it into such bills. Under rules bearing the name of longtime senator Robert Byrd, reconciliation bills cannot include items that aren’t germane to the federal budget. This has excluded broad areas of legislation, including, during Barack Obama’s initial legislation blitz, a climate-change bill that passed in the House but never saw the light of day in the Senate. The “Byrd Rule” currently means that a vitally important package of election-reform legislation is likely a dead letter in the Senate. But even widely popular legislation like modest bipartisan gun-safety measures have succumbed to recent filibusters.
Reconciliation hasn’t just excluded types of legislation; it has had a bad effect on the legislation it includes, thanks to the Byrd Rule and the necessity of demonstrating fiscal impact at all costs.
The much-discussed complexity of many federal programs owes a lot to the process necessary to enact or adjust them. It’s not the only reason that Obamacare, for example, is so confusing, but it didn’t help that the final version of the Affordable Care Act was enacted via reconciliation when Democrats lost a Senate supermajority in 2010.
What price can you place on years of failure to address climate change? And given the perilous lack of confidence in our democracy, how much blame for a near-slide into authoritarianism in 2020 do we assign to the filibuster that has made national election reform impracticable?
A Huge and Avoidable Price to Pay
There’s no way to add up all the costs associated with the filibuster over the decades, and it’s obviously harder to assess the bad legislation the dilatory tactic and its theoretical availability has prevented from enactment. Had Republicans been able to repeal Obamacare in 2017 via a straightforward piece of legislation rather than jumping through the hoops required by reconciliation, they might have succeeded.
But all in all, the filibuster has been used to halt progress more often that it has been useful to facilitate it or defend it from attacks. And it remains incontestable that limited reforms — such as restrictions on the measures subject to the filibuster, or a return to the days when “talking filibusters” were required — are available short of its outright abolition which could preserve minority rights in the Senate without thwarting majority rule. Filibuster reform should remain at the top of every progressive legislative agenda. Those center-left or center-right politicians who always find excuses to oppose reform need to be regularly asked: How much damage to America and Americans are you willing to accept to maintain this terrible tradition?