Lest’s start of with clarity about the filibuster: that’s the procedural rule in the United States that as currently crafted allows a minority of 40% pls one of Senators— without debate or even saying a word except “no” — to prevent the majority of Senators from even debating or voting to approve a proposed legislation or other action. It has been said by Senator Joe Manchin of West Virginia that the filibuster has been with us as long as the Constitution. He is wrong. Actually, as we shall see below, the Constitution itself makes no mention of a filibuster, by name or otherwise. The Senate itself initially required only a simple majority to proceed on ‘the previous question.’ But Vice President Aaron Burr in 1803 suggested elimination of that rule since it was so seldom needed to come to a vote, and the Senate agreed and dropped dropped that provision from its rules, but replaced it with nothing else. As a result, a talking filibuster or threat one one became theoretically possible without any rule as to how to to end debate.
Actual filibusters or threats did not come into use until the late 1830’s in the context of debates about a National Bank. In the ensuing years various Senates adopted differing rules requiring that some form of super-majority — commonly but not always by a two-thirds vote — would be required to end debate and vote on the legislative question at hand.
In modern times, Majority Leader Lyndon Johnson, with strong support from Southern Democrats who saw potential for major civil rights legislations supporting Black citizens’ voting and other rights coming down the road, restored in 1959 a 2/3 super majority to overcome a filibuster. Ironically, then President Lyndon Johnson fought eloquently and successfully to ‘overcome’ his own filibuster rule to secure passage of the Voting Rights Act of 1965 — a refresh of which is one of the current subjects before the Senate but not yet being allowed to be debated.
Senator Mitt Romney, a GOP opponent of any change in the filibuster rule like all current GOP Senators, said on TV on January 14 this year that such a refresh of the Voting Rights Act is not needed as the US Justice Department can bring and has brought lawsuits challenging the most invidious voting rights restrictions adversely affecting racial minorities being imposed by state legislatures in nineteen states controlled by his party. Romney is being disingenuous at best. He must know that the conservative majority of the Supreme Court has already effectively gutted the key pre-clearance and “discriminatory effect’’ enforcement aspects of that Act, essentially holding that things aren’t as bad for Black voters as in 1965, and thus they no longer need such special protections that whites do not also enjoy.
Tell that to the residents of mostly Black precincts in those nineteen states who wont be approved for mail-in ballots and thus will have to wait in diapers in workday-long lines at their under-resourced polling places while allowed no food or drink unless they bring their own breakfast, lunch and dinner, while voters in predominantly white precincts are in-and-out as fast as as California burger joint order. If they do manage to survive re the GOP voting gauntlet and newly-empowered poll watcher challenges to actually cast ballots, those votes can now by law be discarded by a simple majority vote of their state legislatures who can send in their own folks to ‘find’ enough votes to disregard the non-partisan official vote count and send their own Electoral College slates to Congress. Today’s Supreme Court may be poised to rule that despite such travesties, the Constitution makes legislatures the final authority on state votes in federal elections. Thus only an act of Congress — in this case, the Senates’s ’ call since the House has already acted, can assure that this sort of blatantly un-democratic, racially-discriminatory outcome does not come to pass in 2022 or 2024. Only the filibuster stands in the way of accomplishing this goal. Off-and-on since the Civil War right up to now, the filibuster rule itself thus has a strong connection with our nation’s original sin, and in abetting its residue of discrimination against Black citizens.
Yet has been said that the Senate should not in principle carve out an exception to such a long standing rule. But there have been many exceptions, especially this 21st century. The late Senate Democratic Majority Leader Harry Reid of Nevada succeeded in creating an exception for the purpose of confirming presidential nominations to the Federal judiciary up to but not including the Supreme Court. Those nominations had been stonewalled by filibuster by a united GOP opposition to all things Obama under the Minority Leadership of Senator Mitch McConnell, as part of trying without success to make our first Black chief executive a “one-term president.”
When he became Majority Leader, moreover, McConnell first turned the tables on the Democrats by refusing to hold hearing on the Black president’s third Supreme Court nomination in eight years in office by inventing a new “rule” — never codified in Senate procedural rules like the filibuster — that when the Presidency and Senate majority are not held by the same parties in the President’s final year office, any SCOTUS vacancy must await the inauguration of the next chief executive. Then, after President Trump was elected, McConnell changed the rules to eliminate the possibility of employing the filibuster in the case of Supreme Court nominees — allowing Trump to get three nominees confirmed in only four years in office.
Thus, both parties have, by simple majority vote when they are in power, carved out exceptions to the filibuster rule when it suits their political purposes. In the past year, the GOP’s McConnell ultimately allowed a de-facto exception to the filibuster rule by standing down on the vote to extend the hot potato known formally as the debt ceiling — which in fact is simply a legislative overdraft privilege allowing the US Treasury to pay for Congressional appropriations which have survived the filibuster rule and been enacted into law, plus an estimate of going-forward due bills for a particular period (in this latest case, about two years).
We know that the filibuster is neither viewed as sacrosanct by either major political part, nor was it Constitutionally or otherwise sanctioned by the Founding Fathers. They had a different way of using the Senate for protecting the minority from unchecked majority rule (which can be the way things get done in the House of Representatives — all of whose members must stand for election every two years/. Such short terms are at least a theoretical check on rampant radicalism by ay political party. The framers provided a Senate with two members from each state regardless of each state’s population relative to others, unlike the House, where relative population sets the number of Representatives from each state. thus the Senate is a Constitutional exception to the principle of “one person one vote” that is also Constitutionally derived. Even a majority of a Senators — elected for more-extended 6-year terms — may routinely represent a minority of the US population.
The Founding Fathers nowhere in their document provided for a filibuster, whereas they obviously knew how to write a clause about special super-majority voting on certain issues went they believed such was necessary: conviction of an impeached president requires a two-thirds majority of the Senate’s members — as we have recently witnessed twice, that is a hard number to achieve in a two-party system. A two-thirds vote is likewise required to approve a treaty, expel a member, or override a presidential veto (by both Houses of Congress in this case). Likewise, Article Five of the Constitution provides that amendments to the Constitution may be initiated directly by Congress, but only with a two-thirds approval of both Houses. And the much more contemporary Twenty-Fifth Amendment to the Constitution, adopted in 1967, provides that a vacancy in the office of the vice president shall, upon nomination by the sitting President, take effect on confirmation by a simple majority vote of both Houses of Congress. In effect, this is an explicit Constitutional exception to the Senate’s filibuster rule. — with a matter as important as presidential succession being decided by a modern congress and 3/4ths of the states to require only a simple majority vote, why are voting rights held subject to a 60 vote threshold?
The Framers clearly concluded that, except in such a momentous case where the Senate performs a singular quasi-judicial rather than legislative role and other very special circumstances, the pre-balanced, two-to-each-state Senate was enough structural bias to provide minorities sufficient leverage in terms of the lawmaking function. If they had wanted to require 60 Senate votes even to debate any proposed legislation, as is now the case, the Founding Fathers certainly knew hoe to write that language and kept such thoughts to themselves, despite their documented acute sensitivity to concerns about tyranny of majority factions.
Recently, in defending her resistance to a simple-majority rule change to create and a filibuster carve-out for proposed voting rights legislation, Senator Kyrsten Sinema has argued that what a 2022 Senate simple majority giveth, a post-2022 Senate could taketh away (or make even worse) when it comes to rights of minority voters. But she seems to forget that President Biden owns a veto pen on any such reversal of fortune at least until noon January 20, 2025. As noted above, moreover, only a two-thirds vote would suffice to nullify such a veto. So there are two forward federal elections for her fears could realistically come to pass — as they say, a lifetime in politics.
As currently functioning, the overvalued antique known as the filibuster does not in any way, shape or form support minority speech rights or deliberate and fulsome debate: precisely the opposite, it cuts off deliberation and precludes debate. Meanwhile, as it was actually intended as recently in 1959, it actually inhibits minority rights in terms of voting and other civil rights.
Case closed.