A few weeks ago, Republicans launched a vigorous defense of the filibuster against the charge that it is a Jim Crow relic. Sure, they conceded, it was used to block some civil-rights bills here and there, but lots of tactics were used to block civil-rights bills. Are they all racist too? Huh? (Yes, that really was their argument.)
But now, apparently dissatisfied with merely making a defensive case for the filibuster’s history, the Wall Street Journal has a column defending it as an active contributor to the triumph of civil rights. The article’s thesis is captured by this surreal headline: “The Filibuster Made the Civil Rights Act Possible.” The author, David Hoppe, is a longtime Republican who has worked for Republicans like Paul Ryan and Trent Lott, and who has been lobbying his party behind the scenes to maintain the supermajority requirement for more than a decade and a half.
Hoppe’s bizarre history begins with a very brief concession. “There were several successful filibusters of civil-rights legislation between 1917 and 1964.” Hoppe quickly moves on to the end, but it is worth dwelling on what happened here. During this period that spanned nearly 50 years, the filibuster prevented almost all civil-rights measures from coming to a Senate vote. Even extremely modest bills to prevent lynching were routinely blocked.
This was the period when the filibuster took shape. Jim Crow was the essential backdrop to its formation. The Senate never would have tolerated a two-thirds requirement for all legislation for so long. The filibuster was only able to survive this long because of a broad understanding that the white South had a special interest in blocking civil-rights laws, and the filibuster would be reserved principally for this purpose. That understanding was an outgrowth of the implicit peace between white northerners and white Southerners, which rested on the latter being permitted to disenfranchise and oppress its Black population without interference from the former.
This half-century period of Senatorial disgrace finally ended when northern liberal Democrats gained control of the Democratic party, which then used overwhelming supermajorities to sideline its Dixiecrat contingent.
Hoppe presents the story differently. In his telling, it was worth waiting decade after decade through a violent regime of white supremacy, because the civil-rights bill finally passed the Right Way, by amassing a supermajority and holding extensive debate. The 1964 Civil Rights Act:
began with Mansfield meeting with Georgia Democrat Richard Russell, the leader of the senators opposed to the Civil Rights Act. Mansfield promised there would be no tricks and he would keep Russell fully informed of Mansfield’s actions as he guided the bill through floor debate. …
Most importantly, the Senate and the country saw an open process that allowed the minority every opportunity to debate and offer amendments. They saw the leaders of both parties in the Senate work to gather the 67 votes then needed to cut off debate and pass a bill that extended civil rights to black Americans across the U.S.
The main point to understand is that Hoppe’s account doesn’t show that the filibuster “actually played a crucial role in passing civil-rights legislation.” It simply shows that civil-rights advocates managed to win enough votes to overcome the filibuster.
If you had suggested at any time during these decades either to civil-rights advocates or to segregationists that the filibuster was somehow helpful to the civil-rights cause, they’d have laughed you out of the room. Hoppe’s argument is ludicrously ahistorical.
If the Senate had worked on a majority basis, and Calvin Coolidge or Franklin Roosevelt had been allowed to sign an anti-lynching bill into law, Hoppe implies that somehow the result would have been worse for civil rights. He doesn’t make this case directly, perhaps because making his position explicit would reveal how preposterous it is.
Instead, he asserts that civil-rights advocates simply had to wait until the moment was right and argues that the filibuster enabled lengthy debate:
that had something to do with the way the act passed—not by a simple majority forcing its will on the minority but by allowing the two sides to argue their case at length, by allowing the legislative process of debate and amendment to proceed unhindered, by gathering the votes needed to show the country that it must change the law, by carrying the country along through the months of discussion and compromise, by fulfilling the highest expectations of the Founders, Mansfield, Dirksen and other senators built support for a law the country needed.
Hoppe’s assertion that civil-rights bills needed many decades to build public support is false. As Adam Jentleson points out, many civil-rights bills that were blocked by the the filibuster had enjoyed overwhelming public support: In 1941, 63 percent of the American public favored ending the poll tax. In 1937, 72 percent supported anti-lynching laws. The filibuster didn’t force advocates to build a clear mandate, it simply allowed opponents of civil rights to defy the public.
Hoppe’s argument also repeats the hoary Dixiecrat propaganda that the purpose of the civil-rights filibusters was to permit debate. As Jentleson’s book also shows, the Dixiecrats preferred method of blocking civil-rights laws was to bury them before they came to the Senate floor, preventing any debate from ever beginning. The method of stopping them with endless talking was a final resort when the usual methods failed. They didn’t care about debate; they wanted to kill civil rights by whatever method they could.
Some filibuster-reform advocates have suggested measures to allow extended debate without the supermajority requirement. But today’s reactionary filibuster advocates oppose any such reforms. They, too, are using debate as a pretext for what they really care about: maintaining the supermajority requirement as a lever to block progresisve change.