I’ve been thinking more than usual about the filibuster lately, for a lot of obvious reasons. I think one of the things at the root of current political unrest is persistent government failure and obstructionism. The US Constitution already makes it pretty difficult to pass legislation, but the filibuster makes it that much more so. Does abolishing the filibuster makes sense from a constitutional perspective, given the fact that it has been part of normal legislative procedure for so long now? What implications would abolishing it have for bi-partisanship? And how much does the origin and history of the filibuster matter?
I found this conversation between Adam Jentleson and Ezra Klein valuable and engaging, especially when it comes to that last question. Jentleson has recently written a book called Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. In the podcast, he makes a powerful case for eliminating the filibuster. There are a number of strong arguments from the perspective of constitutional design (and the fact that the Founders knew about supermajorities and decided against them for normal legislation, partly because of their experiences with the Articles of Confederation), but in addition to that there are pragmatic arguments for getting rid of it (namely the need to pass some legislation, and to restore some competence to the government), and then there’s also a strong moral argument for getting rid of it. The moral argument concerns the origin of the filibuster – as Jentleson explains, it’s got a pretty sordid past. As they put it in the blurb: “For much of its history, the filibuster was used primarily to prevent civil rights legislation from becoming law. But more recently, Republicans have refined it into a tool for imposing their will on all issues, wielding it to thwart an increasingly progressive American majority represented by Barack Obama’s agenda and appointees.”
The discussion – which you can also find summarized here – acknowledges that both parties now use the filibuster all the time (and it’s worth noting that under Trump the filibuster was used to guard the will of the majority), but Klein and Jentleson make a compelling case that ending or reforming the filibuster could actually wind up promoting bi-partisanship.
Today, in response to a reporter’s question about how it would look for the GOP to use the filibuster to block HR1 – the House’s new voting rights bill, Mitch McConnell claimed that the filibuster “has no racial history at all. None. There’s no dispute among historians about that.” Maybe McConnell missed the Jentleson book and the podcast – or maybe he senses just how much this history actually matters.
2 thoughts on “On nuking (or reforming) the filibuster”
Try Gregory Koger’s book Filibustering for more info. This is a much more complicated issue than most realize. The racial-history angle is nearly entirely unenlightening for us today–as our choice concerns super-majoritarianism, Senate functioning, party-rule over member-independence, etc. And our choice concerns partisan calculations of advantage.
It is a plausible hypothesis to say the ability of Democrat segregationists to use to the filibuster for their purposes, particularly in the 30s to mid-60s window, may have been one factor among several others for the Senate adopting the rules that facilitated filibustering from the early 1900s on, even as the House, which in the 1870-1900 window was the chamber more likely to feature filibustering, began eliminating most rules-avenues for it. McConnell’s statement is super-crude, assuming context wasn’t provided in his full statement, but Jentleson’s assertion about how filibustering has been “primarily used” is not at all backed up by the numbers, as the fact that there were far more Senate filibusters in the 1970s-2000s period than in any earlier ones should suggest. Her statement rests on some of the famous and well-known uses of Senate filibustering, but not upon the data about all filibusters. (But again, why on this, is it so vital to get into the racially-messy political history of the Democrat coalition circa 30s-mid-60s? FDR, and note well, the majority of blacks who swung behind him, made a calculated deal with the devil in allowing Dixiecrat strength to continue and flourish as part of a coalition that could deliver New Deal policies, and circumstances meant that messy deal rested a bit on various features of our system, with the post-1901 rise of Senate filibustering being one of them. And morally, that should mean exactly what to us today? Should we oppose New Deal programs or those like them, on the basis of that history? So why is that history relevant to evaluating the use of Senate filibustering in our time?) Scholars like Koger show you what the here-and-now and future issues regarding filibustering-enabling-rules, or efforts to eliminate them, are and will be.
Thanks for this, I”ll try to check out the book. To be clear, Jentleson doesn’t ignore the data or make the argument you’re attributing to him. His point is narrower, having to do with the origins and earlier use of the filibuster.
I don’t think the questions you raise about the messy history here tell us much about the question of whether it makes moral sense for a counter-majoritarian institution to act in a still more counter-majoritarian way. Just because a messy compromise was deemed useful and necessary to pass New Deal legislation doesn’t tell us much about the merits of the tool – strikes me more as a commentary on just how bad things were.
Here’s a review that gives a little more detail about the relevant era.
“Jentleson’s great modern villain, the politician who figured out how to use this rule, is the Georgia Democrat Richard Russell, “a handsome man with an aquiline nose and a patrician gaze,” who made it his lifework to defend racial segregation, proposing a bill that would have provided financial incentives for Black Americans to leave the South. During the postwar period, Russell weaponized Rule 22 to kill federal anti-lynching and anti-poll-tax legislation, and, perhaps most significantly, to gut a comprehensive civil-rights bill that, as Jentleson puts it, “a majority of the House, a majority of the Senate, and a popular Republican administration supported.” The method became so effective that, according to a 1951 account of civil rights by a writer for the Saturday Evening Post, Washington reporters called the Southern caucus “Dick Russell’s Dixieland Band.” The Post also noted the Georgia senator’s insistence on euphemism: “The Negro, who is at the heart of the Civil Rights issue, is never mentioned.””