Analysis: Why The Filibuster Rules Must Be Revised In Order To Protect Voting Rights And Save The Senate
By: Fred Wertheimer, President, Democracy 21
The filibuster is again at the center of an ongoing battle in the Senate over civil rights.
Since June, four filibusters have blocked pending voting rights legislation that would protect millions of eligible Americans from losing their ability to vote in federal elections.
The right to vote is the heart and soul of our democracy. Legislation to protect this threatened fundamental right is being blocked by obstructionist filibusters being conducted by Senate Republicans.
The Senate filibuster is not found in the United States Constitution. Instead, in the early 19th century, historians agree, it was created by mistake.[1]
Vice President Aaron Burr suggested cleaning up the Senate rule book by removing sections he considered unnecessary. Among the rules removed: the “previous question motion” which had empowered a simple majority to end debate on a measure.
That act of “housekeeping” in 1806 has brought us to the point in 2021 where the Senate is all too often paralyzed by Senators using the filibuster to hold issues hostage. In recent years, the use of the filibuster has affected nearly every major issue facing our country.
The filibuster rules must be revised, not only to protect voting rights, but to save the Senate and restore its ability to function.
Revisions To The Filibuster Rules Have Been Routine
The Senate filibuster rules have never been written in stone.
As Senator Robert C. Byrd, the acknowledged master of the Senate rules, said in successfully leading a change in the filibuster rules in 1979, rules that were necessary in earlier times “must be changed to reflect changed circumstances.”[2]
In fact, between 1969 and 2014, the Senate passed bills that included 161 exceptions to the supermajority requirement of the filibuster rules.[3] The most significant exception was the creation of the budget reconciliation process in the 1970s which continues today to allow massive federal budgets to be passed in the Senate by majority vote. Senator Byrd played a lead role in creating that exception.
A revision to the filibuster rules today to allow voting rights legislation to pass by a majority vote does not mean eliminating the filibuster – a proposal that would not pass in the Senate.
Instead, a change to the filibuster rules can be made that would permit passage of landmark voting rights legislation by a majority vote, while continuing to provide the protections for the minority in the Senate that the filibuster rules are proclaimed to provide.
The last time this kind of change took place was in 2017, when then-Senate Majority Leader Mitch McConnell, the king of obstructionist filibusters, changed his stripes.
Senator McConnell led a successful effort to bypass the filibuster rules to allow Supreme Court Justice nominees to be confirmed by a majority vote. This resulted in the confirmation of three Trump Supreme Court nominees by a majority vote.
With voter suppression efforts in the states threatening to eliminate the ability of millions of eligible Americans to vote and take us back to the ugly days of Jim Crow, the need to revise the filibuster rules to protect our democracy is of paramount importance. It is more urgent than ever.
The Civil Rights Filibuster Returns With A Vengeance
While Senator Strom Thurmond’s 24-hour filibuster of the Civil Rights Act in 1957 is among the most memorable filibusters, it was only one of many anti-civil rights filibusters in our history.
Filibusters derailed anti-lynching legislation, poll tax bans, and numerous other civil rights and voting rights measures over the years. If the measures weren’t killed outright, they were significantly weakened by filibusters led by southern Senators.
In 1964, a 60-day filibuster of the Civil Rights Act was finally ended with a successful cloture vote. It was a historic moment – marking the first time the Senate was able to muster the votes needed to cut off a filibuster on a major civil rights bill.[4]
The 1964 Act was a civil rights breakthrough, and it was quickly followed the next year by passage of the landmark Voting Rights Act of 1965. The Voting Rights Act has been reauthorized five times since 1965, most recently in 2006 by a 98-0 vote in the Senate.
But, today, the civil rights filibuster has returned with a vengeance.
This year, Republican-led state legislatures around the country have enacted an unprecedented wave of voter suppression laws, primarily aimed at preventing Black and brown Americans, as well as other minorities and the disabled, from exercising their right to vote.[5] These state legislatures also have enacted laws to politicize the administration of elections and have set the stage for partisan election officials to rig the outcome of federal elections.
At the same time, Republicans in Washington are conducting a frontal attack on the integrity of our elections by using the filibuster to block Senate passage of the civil rights bills that would prevent the state voter suppression laws from applying to federal elections.
Washington Post columnist E.J. Dionne Jr. has rightly called the voting rights fight in Congress this year “the pivotal civil rights battle of our time.”[6]
Since June, filibusters have blocked any consideration of three voting rights bills – the For the People Act, a revised version of that legislation called the Freedom to Vote Act, and the John Lewis Voting Rights Advancement Act.
The Freedom to Vote Act is the compromise civil rights measure, engineered by Senator Joe Manchin this summer, that would establish new voting standards for federal elections and override state voter suppression laws. It would also establish fair standards to govern the extreme partisan gerrymandering that is underway in a number of states and would prevent partisan election officials from hijacking federal elections.
The John Lewis Voting Rights Advancement Act would restore key provisions of the Voting Rights Act of 1965 that were gutted by the Supreme Court’s decision in 2013 in Shelby County v. Holder. This vital law requires certain states and local jurisdictions to “preclear” any new voting rights laws with the Justice Department before they can take effect.
In the four cloture votes on these bills, just one Republican Senator, Lisa Murkowski, voted to end just one of the filibusters.
Senator Mitch McConnell – The Self-Described “Grim Reaper” – Is The Senate’s Filibuster King
To understand the state of Senate paralysis that, among other things, is currently sending us back into the grip of Jim Crow discrimination, it’s important to understand how Senate Republican Leader Mitch McConnell has weaponized the filibuster.
Cloture motions to end filibusters have skyrocketed since 2006. As the Brennan Center for Justice has documented, there have been as many cloture motions in the last 10 years (959) as there were during the 60-year period from 1947 to 2006 (960).[7]
Those filibusters in the last 10 years have been used to block almost every type of measure.
And the leader of using filibusters to paralyze the Senate is Mitch McConnell.
As Professors Jacob Hacker and Paul Pierson aptly described him in The Atlantic earlier this year: “No one presently – or perhaps ever – in the Senate has practiced the dark art of obstruction as relentlessly as Mitch McConnell.”[8]
Senator McConnell’s record use of the filibuster during the Obama Administration was not governed by policy. Instead, McConnell made clear his goal was purely partisan, saying in 2010: “The single most important thing we want to achieve is for President Obama to be a one-term President.”[9]
The filibuster was McConnell’s weapon of choice. While he failed to block Obama’s reelection, McConnell’s relentless obstructionism clouded Obama’s entire presidency.
McConnell’s singular goal for the Biden Administration is the same. “One hundred percent of my focus is standing up to this Administration,” he said earlier this year.[10]
The filibuster, again, is his weapon of choice.
Today, nearly every part of President Biden’s agenda, including voting rights, immigration reform, family leave, lowering prescription drug prices, and tax reform faces a Republican filibuster or threat of filibuster, unless it can be included in a reconciliation bill which can be passed by majority vote.
Senator McConnell’s use of the filibuster has created a Senate that can no longer even debate the most basic voting rights measures – measures that were easily passed before with strong bipartisan support and, ironically, in the case of the Voting Rights Act reauthorization, with McConnell’s own “yes” vote.
This is the kind of “changed circumstances” that Senator Byrd said requires changes in the filibuster rules.
Pending Voting Rights Legislation Will Only Be Passed If The Senate Revises Its Filibuster Rules
To put it simply, the Senate today is a dysfunctional institution. Once known as the world’s greatest deliberative body, it all too often neither deliberates nor acts.
In its current state of paralysis, the Senate can’t even respond to widespread voter suppression laws that are attacking the most fundamental right in our political system – the sacred right to vote.
The Senate must act to protect the right to vote and the integrity of our elections. The Senate must act to restore itself as a functional institution.
Both goals require a revision of the Senate filibuster rules. There are various ways this can be accomplished without eliminating the filibuster rules.[11] But, it must be accomplished.
Our democracy requires fair and honest elections, and demands the ability of every eligible American to exercise the right to vote. The Freedom to Vote Act and the John Lewis Voting Rights Advancement Act must be passed.
Failure is not an option for the United States Senate.
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[1] Senate Rules Committee, Testimony of Professor Sarah A. Binder, U.S. Senate (4/22/2010)
[2] Congressional Record (1/15/1979)
[3] Exceptions To The Rules: The Politics of Filibuster Limitations in the U.S. Senate, Molly E. Reynolds, Brookings (7/18/2017)
[4] Civil Rights Filibuster Ended, Senate Historical Office, U.S. Senate
[5] Voting Laws Roundup: October 2021, Brennan Center for Justice (10/4/2021)
[6] Democrats have only themselves to blame, E.J. Dionne Jr., The Washington Post (11/3/2021)
[7] The Case Against The Filibuster, Brennan Center for Justice (10/30/2020)
[8] Why McConnell Gets Away With Filibustering, Jacob S. Hacker, Paul Pierson, The Atlantic (3/21/2021)
[9] The GOP’s no-compromise pledge, Politico (10/28/2010)
[10] McConnell Says ‘100%’ of His Focus Is on Blocking Biden Agenda, The Wall Street Journal (5/5/2021)
[11] Filibuster reform is coming—here’s how: Seven ideas for change, Mel Barnes, Norman Eisen, Jeffrey A. Mandell, Norman Ornstein, Brookings (9/13/2021)
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