The word “filibuster” reminds many of the late Jimmy Stewart’s legendary performance in the 1939 Frank Capra classic, “Mr. Smith Goes to Washington.” Capra’s movie was fiction, but Stewart’s climactic filibuster was inspired by a real 10-hour Senate filibuster in 1935 from Louisiana’s Huey Long, who filibustered President Franklin Roosevelt’s National Industrial Recovery Act.
Yet, some would have you believe that the filibuster is “deeply rooted in racism,” a relic of the “Jim Crow” era. False.
The filibuster — a Dutch word for “piracy” — is based on a Senate rule that requires a super-majority three-fifth’s vote —60 votes in today’s Senate — to end debate and vote. The U.S. Senate was structured in part to cool the passions of the House, partially due to the requirement that senators have longer six-year terms. The filibuster emerged in the Senate to slow things down.
The House and Senate began work in Philadelphia’s Congress Hall in 1789 with the same rules. In 1806, Vice President Aaron Burr successfully “advised” the Senate to abolish from its rules the motion to call “the previous question,” then requiring a simple majority, to end debate and vote.
Around 1841, efforts began to curb the filibuster, but were met with. . . filibusters. It wasn’t until 1917, under pressure from President Woodrow Wilson, prompted by a filibuster over legislation to protect merchant ships from German submarines, that senators placed limits on the filibuster.
Again, not “racist.” They established a rule to end debates on a two-thirds vote, 67 votes.
Yes, the filibuster has been used by Southern Democratic senators to stop early civil rights legislation during the “Jim Crow” era, including several particularly odious filibusters to stop anti-lynching legislation from 1922 to 1949.
In 1975, a Democratic Senate reduced the standard to end filibusters to 60 votes. That still holds but only for legislation. The filibuster was eliminated by the “nuclear option” by Senate Majority Leader Harry Reid for executive nominations (other than Supreme Court nominations) in 2013. In 2017, Majority Leader Mitch McConnell followed suit with Supreme Court nominations when Democrats filibustered President Trump’s nomination of Neil Gorsuch.
What is the nuclear option? It takes a supermajority of two-thirds (67 votes) to amend Senate rules. But in 2005, Senate parliamentary experts rediscovered a way to surreptitiously amend the rules with a motion to “overrule” a ruling of the chair. It only requires a simple majority of 51 votes.
In a 50-50 Senate, with a Democratic vice president breaking ties, anyone can see the great temptation of Senate Democrats to end the filibuster to move on to pass aggressive, partisan legislation from the House. Yet four years ago, 33 Senate Democrats demanded the filibuster be protected.
What about the filibuster being “deeply rooted in racism” when Democrats voted to keep it? Then-Senate Majority Leader Mitch McConnell resisted pressure from President Trump and many conservatives to ditch the filibuster to advance their agenda.
It is true that the filibuster had evolved from non-stop speeches to little more than a threat to vote against a “motion to proceed” or invoke cloture, ending debate. Some senators talk of “reforming” the filibusters to require a “talking” filibuster. In the past, “talking filibusters” occurred alongside a 67- or 60-vote requirement to end debate. Now, they support replacing the super-majority vote requirement with their “talking filibuster.”
How are Democrats planning to “reform” the filibuster? With a required 67-vote rules change or the “nuclear option?” If it is the latter, it is another example of naked hypocrisy, no matter what kind of lipstick you put on it.
Eliminating the filibuster — especially through the “nuclear option” — would put the final nail in the coffin of a working Senate, at least one that functions the way our framers designed, and many Americans expect.
Of course, we are more divided as a nation than ever before. The Senate’s rules requiring some bipartisan cooperation are essential to its organizational purpose to cool passions, slow the process and ensure broad public support for the legislation. Terminating the Senate’s filibuster rule for legislation will turn the Senate into nothing more than a copy of the House. Worse, it will further divide the country and send us on wild, partisan swings every few years, with each party reversing each other. And party control changes fairly frequently in the U.S. Senate — more so than the House in recent years.
Several experts suggest fixes to the filibuster to minimize their abuse. That’s a better approach. Fix, but don’t break, the filibuster.
Kelly Johnston is a former secretary of the U.S. Senate. He blogs on Congress and politics at kellyjohnston.substack.com