The filibuster is one of the grand old traditions of the Senate, an ingenious tool to protect minority rights form the tyranny of the majority, and vital to ensuring democratic debate. Let’s take a tour through some of its greatest achievements.
How about the time that Southern Democrats filibustered anti-lynching legislation to death? There wasn’t just one time, of course, because they did this at least three separate times: in 1922, 1938, and 1940, all presumably storied victories for minority rights.
The filibuster didn’t protect minority rights just by killing anti-lynching bills, though. It also did so by killing a 1942 bill repealing the poll tax, Harry Truman’s civil rights legislation, and a 1980 bill erecting protections against housing discrimination. This isn’t counting the times a filibuster was tried and failed in defeating civil rights measures, such as the 1957, 1960, and 1964 civil rights bills, the 1968 Fair Housing Act, or the 1972 measure to give the Equal Employment Opportunity Commission enforcement powers for the first time. Nor the times it was used to water down such legislation, as with the 1957 bill.
One minority group that has richly benefited from the filibuster are “people of means,” known to the rest of us as the rich. From 1965–66, Evertt Dirksen led successful filibusters against Lyndon Johnson’s attempt to repeal the section of the Taft-Hartley Act that allowed states to pass right-to-work laws. A three-day filibuster in 1979 succeeded in protecting more of the oil industry’s profits from a new tax. In the 1990s, Senate Republican leader Bob Dole first turned the threat of filibuster from an extraordinary occurrence to a virtually de rigueur maneuever, killing a stimulus package, health care overhaul, and lobbying and campaign finance reform, all in the first two years of the Bill Clinton presidency. And we can probably all remember the way Mitch McConnell further escalated even that radical strategy in the Obama years.
So the filibuster has been good for minority rights, as long as the minority you’re talking about is a tiny band of legislators far to the right of the US public, representing a disproportionately small number of voters (the current Republican majority represents less than half of the population) and the coterie of wealthy donors and corporations that fund them. This isn’t to say the filibuster has never been used for good; but taken in total, it has overwhelmingly been a tool wielded against justice and progress.
This history is relevant because all but one of the current Democratic front-runners opposes getting rid of the filibuster should they win the presidency in 2020. That politician is not, as one might assume, Bernie Sanders, who recently said he’s “not crazy” about doing so. Rather, it’s Elizabeth Warren, who believes “we’ve got to keep all the options on the table.”
There’s really no way around it: the continued existence of the filibuster will mean the stillbirth of even the mildest, most compromised versions of the ambitious legislation Democrats need to pass. Infrastructure spending to transition from fossil fuels? Higher taxes on the rich? Free college? Republican obstruction will kill or mortally water down each one.
Same thing goes for Medicare For All, arguably the flagship program of the newly energized Democratic base. There is no chance that the same GOP that decided a Heritage Foundation policy first implemented by a Republican governor was a radical threat to American freedom will ever allow a bill that will annihilate the profits of health insurers, hospitals, and drug companies to move forward. Many of the same Republicans who embraced Obamacare in the 1990s as an alternative to Clinton’s health care reform viciously turned on it once it became a Democratic policy. The GOP cannot be won over.
In fact, the Republican Party has made it very clear their only concern is winning political power. Mitch McConnell candidly said in 2010 that the “single most important thing” the party wanted to achieve was for Obama “to be a one-term president” if he refused to bend to their will. He and his party spent eight years waging one of the most aggressive campaigns of obstruction in US history, including blocking economic recovery so that voters would turn on Obama and the Democrats, and all despite Obama’s futile attempts at outreach. This is a party whose administration privately acknowledges but doesn’t actually care about the ecological doom humanity faces, an administration that is not just stymying and dishonestly fearmongering about measures to prevent it, but actively accelerating its arrival. There is no negotiating or reasoning with these people.
Even in the best case scenario where Democrats win a sixty seat supermajority in the Senate again, the next president would face monumental hurdles pushing any of this through. Besides a united Republican bloc and his own, perennially unanswered faith in bipartisanship, Obama was constantly thwarted by a small number of conservative Democrats like Max Baucus, who watered down virtually anything he tried to do. A Democratic president in 2021 would face a similar problem.
Democrats are understandably scared that gutting the filibuster would endanger any gains the next time the Republicans hold power. There are two reasons why they shouldn’t be.
One is that this how virtually every other democratic government in the world operates: laws are passed by parliamentary majority, and they can be undone by a different majority later on. While governments in other countries are known to undo policies set by their predecessors, this hasn’t led to an epidemic of wholesale, back-and-forth legislative overhauls across the world. Besides, the filibuster hasn’t prevented rollbacks from happening in the US anyway — just look at the gradual dismantling of the New Deal, or the way laws like the Voting Rights Act and, more recently, Dodd-Frank, have been gradually chipped away at.
The second is that democratic systems offer built-in safeguards. As Republicans well know, it is extremely hard to get rid of popular programs that make tangible improvements to people’s lives. The New Deal was so popular that it shifted the political center of gravity, forcing even its opponents to go along with much of it. While the last few decades have seen partially successful attempts to take it apart, Social Security has endured, as have later expansions like Medicare and Medicaid, precisely because the improvements they’ve made to the lives of a broad base of the population have made them difficult to touch. As Dwight Eisenhower once remarked about Republicans eager to topple what Franklin Roosevelt had built: “Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history.”
The goal of the next Democratic administration, whether it’s led by Sanders or someone else, should be to pass a similar flurry of transformative legislation that would not only become politically entrenched through its popularity, but force the GOP to move leftward in order to stay competitive, just as Roosevelt made his opponents shift leftward, and just as the Democrats lurched right after the Reagan revolution.
Just think of the far-reaching programs that could be passed by a simple majority without the filibuster: Medicare For All; a federal job guarantee; tuition-free college; universal childcare; campaign finance reform; a new Voting Rights Act; statehood for D.C. and Puerto Rico. The first four would guarantee the Democrats electoral victories through their popularity; the last three would drastically rebalance the electoral calculus away from big money and small, conservative states. None of them will happen if the filibuster is left in place.
If you’re worried ending the filibuster will start a tit-for-tat escalation with Republicans, that ship sailed long ago. The GOP is a single-minded organization that will instantly drop its own past positions and violate any commitment to “norms” in order to pursue its political goals, as its theft of Obama’s Supreme Court appointment and subsequent gutting of the judicial filibuster has shown, not to mention its nationwide voter suppression efforts and gerrymandering. In fact, they’re already talking about it: as early as 2017 Trump was advocating for ending the filibuster, while at the very beginning of his term, some Congressional Republicans were pressuring McConnell to do so. If the Democrats don’t, then sooner or later, the Republicans will.
The Right will no doubt paint any such effort as some sort of authoritarian power-grab. But the public will be reminded that weakening the filibuster is a tradition firmly in the US mainstream. Virtually every decade of the twentieth century saw Senate battles to change it, usually due to Southern obstinacy over civil rights. The rule for cloture — or ending debate — once required two-thirds of the whole Senate, or sixty-six senators; it was later lowered to two-thirds of all those present; then, eventually, three-fifths, as it stands now.
Democrats wouldn’t even need to eliminate the filibuster entirely. They could simply advance a variant of what some Democrats tried to do in the 1960s, when they sought to allow cloture by a majority of the full Senate, or fifty-one members, after fifteen days of debate.
Go back to the 1940s, and pro-civil rights senators even then were decrying the filibuster as undemocratic, complaining that “all of the rules of the Senate, work into the hands of those who seek to obstruct legislation,” to quote Sen. Alben Barkley. The crazy thing isn’t that a few Democrats, obsessed with the procedures and “norms” their opponents don’t care a thing for, are finally talking about getting rid of the filibuster; it’s that they’ve allowed it to survive for as long as they have.