BY MICHAEL S. JOHNSON | MAR 28, 2021
There is a strong political wind blowing against the filibuster in the Senate.
The filibuster is a practice that arguably protects the rights of the minority in the Senate by allowing unlimited debate on most measures—talking a bill to death—unless the bill gets 60 votes, a practice known as cloture, to shut off debate. Some contend the threat of filibuster also encourages bipartisanship, which is good.
The debate over the filibuster is one that has always generated more heat than light, but in today’s climate where civility is a sign of weakness and timidity, the debate generates even more hypocrisy, hyperbole, disingenuousness, and nasty partisanship.
Senate Democrats, along with the President, who used to support the filibuster, are now taking the debate to new heights, or lows, by accusing those supporting the filibuster of racism. The race card is being played by Senator Elizabeth Warren, among others, and her friends in the media. They contend that the filibuster was created as a parliamentary procedure for blocking anti-slavery legislation and is a “relic of the Jim Crow era.”
A little history sometimes clears the air of hyperbolic pollutants. The use of the tactic can be traced back to the Roman Republic and a debate in the Senate over tax collectors pitting Marcus Cato against rival Julius Caesar in 48 BC. It’s an interesting tale but not relevant.
The history of the tactic in our modern Republic, from accounts of the Senate Historian and National Geographic, does not suggest that it was intended as a tool of segregation or racism.
The filibuster—not labeled that until 1841—was used in the first Congress in 1789 in the debate selecting Philadelphia as the new capital. In 1811, a filibuster was used in the House to thwart the passage of a trade embargo against Great Britain. In 1837 a Senate filibuster was employed to prevent the ‘expungement’ of censure of President Andrew Jackson over the elimination of the national bank. Jackson won.
The filibuster was used to stop the passage of a number of pieces of legislation in the ensuing years on a wide variety of issues, including those dealing with slavery and civil rights. In 1919, after Senator Robert LaFollette of Wisconsin filibustered a bill to arm merchant ships during World War I, with pressure from President Woodrow Wilson, the Senate adopted a rule that provided for a procedure called cloture to shut off debate with a 2/3rds vote of the Senate. That number was reduced to 3/5ths in 1975.
There is no question it became a tool of Southern segregationists. In 1957 and 1964 the filibuster was used to fight civil rights legislation, but was unsuccessful both times, thanks in part to bipartisan consensus.
The filibuster has been abused, as have most legislative procedures, most often in the past two decades, since it is no longer required that a Senator actually stay on the Floor and speak against a measure. But abuses can be fixed, without throwing the baby out with the bathwater. The procedure is one important distinction between the Senate and the House, which is and should be more reactionary and spontaneous. The Senate, as George Washington described it to Thomas Jefferson should be more deliberate. It is, he said, like a saucer intended to cool the tea before consuming it.
There is today a lot of flaming rhetoric heating up the debate over its future. Support and opposition flow back in forth between the parties, depending upon which is in the minority and which is in the majority. It’s the Democrats’ turn in opposition. Both Senate Majority Leader Chuck Schumer and Senate Democratic Whip Dick Durbin are vociferously advocating for its termination. But that wasn’t the case when they were in the minority.
In 2017, Schumer declared:
“The legislative filibuster is the most important distinction between the Senate and the House. Without the 60-vote threshold for legislation, the senate becomes a majoritarian institution just like the House, much more subject to the winds of short-term electoral change. No senator would like to see that happen.”
Senator Durbin, who now says the filibuster “is making a mockery of American democracy” told ABC in 2018:
“I can tell you that would be the end of the Senate as it was originally devised and created going back to our founding fathers,” Durbin said at the time. “We have to acknowledge a respect for the minority and that is what the Senate tries to do in its composition and in its procedure.”
It is no surprise that the future of the filibuster floats untethered in the high winds of political parochialism and not in the calm air of common sense or bipartisan consensus. The atmosphere in which governing, or the lack of it, takes place in these times, does not lend itself to dealing honestly with issues such as this one that has many sides, rich history, and solid arguments for and against.
“Oh what a tangled web we weave when first we practice to deceive.”
— 19th Century Scottish author Sir Walter Scott
Editor’s Note: Mike Johnson is a former journalist, who worked on the Ford White House staff and served as press secretary and chief of staff to House Republican Leader Bob Michel, prior to entering the private sector. He is co-author of a book, Surviving Congress, a guide for congressional staff, co-founder and member of the Board of the Congressional Institute, and a participant in the Congress of Tomorrow congressional reform project. Johnson is retired. He is married to Thalia Assuras and has five children and four grandchildren.