FILIBUSTER - RELIC OR TACTIC

Former President Barack Obama made news when he delivered a eulogy for civil rights icon John Lewis last year. He punctuated his remarks by declaring he was open to ending the Senate filibuster, referring to it as "another relic of the Jim Crow era." Ever since the inauguration of the 117th Congress on January 3rd, followed by the outcome of the run-off election in Georgia a few weeks later, which resulted in splitting the senate's partisan power structure right down the middle, Senate Democrats have carried the "Jim Crow era relic" mantra forward with conviction. With the longstanding rule of the U.S. Senate that allows a minority of 41 senators to block action on a bill, an opposition party can prevent the majority from advancing its legislative agenda. Today the threat to make use of this tactic is most apparent in the debate over a national voting rights bill, passed by the House and stuck in the Senate. Considering Georgia's newly enacted voting law, which heavily favors Republicans by tending to restrict minority access to the polls, majority Democrats are intent on passing legislation to neutralize moves by state legislatures exhibiting similar intent, no matter what. This includes eliminating filibuster rules, so they can pass legislation by a simple majority, along a straight party-line vote, if need be. Senate Minority Leader Mitch McConnell, who, in effect, now has a pocket veto, has argued that the senate filibuster "has no racial history at all. None. There's no dispute among historians about that." It is clear that the debate is less about racial connotations linked to the use of filibuster, and predominantly about majority rule in the Senate. Yet, the immediate conversation will inevitably remain focused on its history. The filibuster, the tactic of talking a bill to death to prevent its passing, cannot be found anywhere in the U.S. Constitution. Its emergence had nothing to do with racial legislation, and it has been used against a variety of bills. However, as Reconstruction, the post Civil War attempt to redress the inequities of slavery, ended in 1877, the efforts of former slaves to assert their rights began to be repressed. Whites succeeded in passing so-called Jim Crow laws that segregated and disenfranchised African-Americans, which they enforced with violence. Historians agree that, for more than a century, the filibuster was closely intertwined with anti-civil rights efforts in the Senate, thanks to repeated efforts by southern senators to filibuster civil rights bills. So, even though the tactic was not created for specific racist purposes, it has been used as a tool to protect white supremacy. Its use grew significantly during the 19th century. Early on, the Senate did not have a formal process for the majority to end debate and force a vote on legislation or nominations. In 1917 senators finally adopted a rule, Senate Rule 22, which allowed for cloture and limit debate with a two-thirds majority. This was first put to the test in 1919, when the Senate invoked cloture and limited debate to end a filibuster against the Treaty of Versailles. However, a two-thirds majority was difficult to attain. For four decades after 1919 the Senate managed to invoke cloture only five times. The cloture threshold was changed to 60 in 1975, and entirely eliminated for executive branch and judicial nominations in 2013. In 2017 Republicans eliminated the 60 vote threshold for Supreme Court nominations. In the interim, filibusters remained particularly useful for southern senators seeking to block civil rights legislation. Two political scientists, Sarah Binder and Steven Smith, identified every bill between 1917 and 1994 they believed failed because of use of the filibuster. Among these, half were civil rights bills, including those proposing anti-lynching legislation. The "Dyer Anti-Lynching Bill of 1922," intended to establish lynching as a federal crime, was passed by the House, but died in the Senate being filibustered by southern Democrats. Similar legislation proposed in 1935 and 1938 suffered the same outcome. Southern Democrats justified opposition to these b ills by arguing that lynchings were a response to rape, and proclaiming they were an issue left best to states to deal with. During the 1940s and much of the 1950s it was virtually impossible for civil rights legislation to get past the Senate. Southern senators frequently launched filibusters to kill any legislation challenging the southern states' status quo. Notable during this time was a record-setting filibuster by South Carolina Senator Strom Thurmond during the debate on the "Civil Rights Act of 1957," which lasted 24 hours and 18 minutes. The "Civil Rights Act of 1964" finally managed to be approved after an 83 day filibuster and significant political maneuverings behind the scenes. Democrats will likely refer back to history to support their contention that the filibuster is a Jim Crow relic and should be removed. Minority Leader McConnell insists that the filibuster is neither racist nor unfair. He contends that its racial framing is about Democrats trying to push an election-law power grab. Conservatives insist that the filibuster rule is needed to protect minority rights and to protect states from interference by the federal government. To advance their legislative agenda, including voting rights, infrastructure, minimum wage and immigration, without Republican support, Democrats can't continue to rely on using the "reconciliation procedure" they used to pass the "American Rescue Plan Act." That option has largely been tapped out. Eliminating the threat of a filibuster, controversial in its own right, may be their last resort. Theo Wierdsma