An Ideal Rule for the Age of Rage? Critics May Be Making the Best Argument For Keeping The Filibuster – Thelegaltorts

The Case For Internet Originalism – JONATHAN TURLEY

Below is my column in Hill on the future of the filibuster and why this might be the most believable time to apply such a compromise-enforcing rule. There have always been good faith arguments against the application of such a rule as the inhibition of democratic voting. After all, the rule blocks voting by mere majority. However, with a razor-thin margin in both houses, applying such a rule can help force more dialogue and compromise in Congress, which is what most voters indicate in polls. Now it appears that Senator Joe Manchin (D., WV) will block state voting legislation even without a filibuster. As a result, he was attacked by the left as a “not very clever” helper and a better and “cowardly, power-hungry white man”. Senator Dick Durbin’s press secretary on the Judiciary Committee even curiously declared that democracy should not “be in the hands of a man who lives in a houseboat.” The angry response explains why Manchin was one of only two Democrats willing to call for compromises. Republicans are roughly the same number ready to push from that side. Taken together, however, these senators are looking for bipartisan agendas in a deeply divided nation. Killing the filibuster will remove the crucial pressure to seek non-partisan approaches.

Here is the column:

“If you want a friend in Washington, buy a dog,” President Truman is often, perhaps incorrectly, attributed. When it comes to Sen. Joe Manchin, President Biden may consider offering his voracious dog Major to the West Virginia Democrat.

(Official White House Photo / Adam Schultz)

Biden trolled Manchin and Sen. Kyrsten cinema (D-Ariz.) In public speeches and denounced both of them as the “two members of the Senate who vote more with my Republican friends”. In reality, Manchin and Sinema have so far voted 100 percent with Biden, more than liberal icons like Sens. Elizabeth Warren (D-mass) or Bernie Sanders (I-Vt.). That’s why the Washington Post has given Biden three more “Pinocchios” to expand its growing collection.

However, both Manchin and Sinema support the preservation of the Senate filibuster rule and are portrayed in the press as fighters for the so-called “Jim Crow relic”. A reporter asked Sinema how she would react to what critics call a “choice between filibuster and democracy,” while the Los Angeles Times published a column entitled “What’s Wrong with Kyrsten Sinema?”

In truth, the filibuster is no more racist than any other procedural rule. The irony is that, despite its misuse in the past, this is arguably the most compelling time to have a filibuster rule.

While Democrats and the media portrayed anyone who supports the Filibuster as anti-democratic, even racist, they overwhelmingly supported rule when Democrats were in the Senate minority. As a senator, Biden condemned any termination of the filibuster as “catastrophic” and declared: “God save us from this fate … [since it] would change this fundamental understanding and the unbroken practice of the Senate. “

Majority leader in the Senate Chuck Schumer (DN.Y.) previously warned the Senate that it was “on the brink” of a constitutional crisis, as “the controls and contradictions that formed the core of this republic are about to be dissolved by a proposed elimination of the filibuster” . . Likewise then-Sen. Barack Obama (D-Ill.) Condemned those who tried to exterminate the filibuster when they tried to “change the rules in the middle of the game so they can make all decisions while the other party is told to sit down and be silent”. He added, “If the majority chooses to end the filibuster, change the rules and put an end to the democratic debate, the fighting, bitterness and stalemate will only get worse.”

Back then, the filibuster was the embodiment of “democratic debate” – and those words were repeated in the same newspapers and television programs that denounce the rule today. When Sinema recently carried out the same defense of rule as Biden, Schumer and Obama, she was attacked for exposing flimsy, racist or reactionary topics of conversation.

In reality, the rule did not emerge as a racist device. In fact, as I have already written, it is more of a “relic” of the Julius Caesar era than the Jim Crow era. In ancient Rome the filibuster was used to force the Roman Senate to hear dissenting voices; Cato the Younger used it to oppose Julius Caesar’s return to Rome and to denounce rampant corruption. It was seen as protecting minority issues in Senate proceedings. In the United States, this can be traced back to a procedural argument made by former Vice President Aaron Burr, which put an end to an automatic end to the debate on bills in the early 19th century. It wasn’t created in or for the Jim Crow era – and Cato the Younger wasn’t the junior senator from Alabama.

The rule has been used for a variety of purposes, including to oppose civil rights laws of the 1950s. It was modified over the years, such as in 1975 when the threshold for ending a filibuster was lowered to 60 votes. However, both parties agreed that the rule was needed to force a greater consensus in the Senate, which describes itself as “the largest advisory body in the world”.

There are bona fide arguments that filibusters thwart democratic votes. This is arguably a time when the value of the rule as a compromise-enforcing legislative tool is most evident and compelling. The Senate is split 50:50, reflecting the split in the country. (The House of Representatives is slightly better off with a majority of just a handful of votes, the smallest majority since World War II.) That makes Democrats struggle to pass bills on the basis of Vice President Harris’s tied vote.

The Democrats were able to bypass the filibuster rule to pass a $ 1.9 trillion relief bill without compromising by using a budget balancing tactic. Heavily laden with pork projects and few spending limits, this bill embodied the dangers of passing laws on simple “muscle voices”. But now they also want to enforce non-budget laws that cannot be put into a budget reconciliation framework.

For example, many senators want to add up to four new Supreme Court justices to give the Liberals an instant controlling majority on the court. There is also a call to make DC the 51st state. Notably, both steps are very unpopular with a majority of voters. And Democrats are pushing for unprecedented federalization of elections to prevent states from demanding popular forms of voter identification among voters.

Implementing such controversial measures with mere majorities and on straight party lines will only deepen the divisions and increase anger in this country. So this is precisely a time when the filibuster can play a positive role by enforcing laws passed with modest bipartisan support. It requires consensus and compromise in an age of growing, violent division.

Democrats, media representatives and activists are aware of the hypocrisy about filibuster rule and its long defense by the Democrats as a positive democratic tool. So there is a concerted effort to portray support for the filibuster as racist. It is a well-known pattern of silencing opposing opinions: making the rule racist and rejecting the consensus arguments that were accepted in defense of the rule just a few years ago. Then, on behalf of national unity, you will pass bills on straight-line votes.

The filibuster has seen historical controversy over the centuries, from resisting Caesar to resisting civil rights. But as a consensus-enforcing rule, their time may have come, to the chagrin of many.

Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.