Below is my column on the ongoing Democratic efforts to get rid of the Senate filibuster. There are bona fide arguments against filibusters, but there is a new campaign to declare the rule racist. Once again, many media outlets are ignoring both the history and hypocrisy surrounding the filibuster, including last week’s press conference with President Joe Biden. On several questions about the filibuster, Biden was not asked about his defense of a rule he is now dismissing as a racist relic. In 2005 he stated:
The Senate should not act rashly by changing its rules to satisfy a strong-willed majority acting in the heat of the moment. Proponents of the “nuclear option” argue that their proposal is simply the latest iteration of a growing trend towards majoritarianism in the Senate. God save us from this fate if it is true … Adopting the “nuclear option” would change that basic understanding and unbroken practice of what the Senate is about. Senators would start thinking about changing other rules when they got “impractical”. … Changing the Senate rules to aid in one or the other political struggle could become standard practice, which I believe would be catastrophic. “
Here is the column:
President Biden spoke out against the Senate filibuster this week as a “relic” of the Jim Crow era. In these times, it’s a virtual mantra on Capitol Hill that the filibuster is synonymous with racism and the people who support it are believed to be racist. This is exactly what cable news host Al Sharpton noted, who threatened to denounce members as racist if they support the rule. The only thing more dramatic than such historical revisionism is the political revisionism that underlies this new national campaign.
The filibuster 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 Senate to hear dissenting voices, including an opposition from Cato the Younger to Julius Caesar, who was returning to Rome. The basis for today’s filibuster can be traced back to an argument by former Vice President Aaron Burr, which led to a change in the early 19th century. The minority have used versions of the rule to block or enforce consensus on controversial laws ranging from acts of war to oil mandates. It wasn’t created in the Jim Crow era.
But Biden is right that some of the most abusive uses of the filibuster in the 1950s were carried out by segregationists, as embodied in Strom Thurmond, a South Carolina Democrat who set the record for filibustering the Civil Rights Act for over 24 hours Has.
The filibuster was designed to protect the minority in what is often referred to as the “largest advisory body”. It’s not inherently racist. If so, any majority rule would be racist as all of our racist laws have been passed by majority vote, including bills promoting slavery or targeting minority groups.
A few years ago, the Democrats wept over the idea of eliminating the filibuster. They did not argue that the rule was the embodiment of racism, but the heart of the Senate. Biden spoke out in the Senate in 2005 against the termination of the filibuster. So did Charles Schumer, who said he had brought the Senate “onto the brink” of a constitutional crisis, since “the checks and balances that formed the core of this republic are evaporated by the nuclear option”. Now as the Senate majority leader, Schumer rejects the same filibuster as the racist rule forged by segregationists.
Other leading Democrats also denounced earlier moves to end the rule as they shattered hopes for political consensus. Barack Obama denounced the rule as a racist tool when he was a member of the Senate and condemned its removal as an obvious effort to establish party control by “moving the rules in the middle of the game so they can make all decisions while they die the other party should sit down and be silent. “He added,” If the majority decides to end the filibuster and change the rules and end the democratic debate, the fighting, bitterness and stalemate will only get worse. “
Obama served in a Senate where Republicans had a clear majority. The Senate is now split in half to create a split that will allow Vice President Kamala Harris to break ties. This is, in fact, the party control that Obama dreaded. Harris denounced the idea only a few years ago and asked Mitch McConnell, then Senate Majority Leader, to keep the filibuster to protect the “rules, practices and traditions” that the minority members support. She opposed “any effort to limit the existing rights and privileges for members in order to have a robust and extensive debate as we consider future legislation in this body.”
Jim Crow or the Filibuster were not mentioned as racist. However, it has become a rule that only Bull Connor, the enforcer for segregation in Birmingham, would, at least from Sharpton’s perspective, adopt. Referring to Joe Manchin and Kyrsten Sinema, who support the filibuster as a traditional minority protection rule, Sharpton has vowed to “call the pressure we will put on them” to label the filibuster as “racist” and to say that they are there effect to support racism. “
Members are now advised that the Senate’s minority rights protection rule is now being viewed as an attempt to deny minority votes in elections. It’s as simple as that. One great irony, however, is that the filibuster’s original purpose has never been more important. While the rule can be cracked down on purely democratic or majority reasons, concerns previously voiced by Obama and others are only heightened today.
The rule of consensus provides a crucial balance between political interests that oppose work across the aisle. It gives the Democrats a much-needed excuse to engage the Republicans and find the middle ground. Without it, as Obama noted, “the fighting and the bitterness and the stalemate will only get worse.” For a country with violence on both sides, this struggle is now a literal and increasing danger. It is no accident that the filibuster played the dominant role in our periods of greatest division. It was used to try to reach consensus despite the increasing lethality of political rhetoric.
Ultimately, the rule doesn’t save us from ourselves. Caesar made it to Rome only to be murdered by some men who discussed his arrival. Jim Crow’s laws were state laws, but the Senate allowed this nefarious era of discrimination. In the end, our laws are no better than we are, but we do worse when little consensus is required.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.