Did you know the Senate filibuster as it is currently comprised came to exist because of a sloppy mistake made by an iconic killer some 207 years ago?
It’s true. A few months after putting Alexander Hamilton into the ground with a shot from a Wogdon & Barton dueling pistol, Aaron Burr decided the Senate rule book required revision. “In a careless effort to remove what he thought was redundant language,” writes David Litt for The Atlantic, “he cut the ‘previous question motion,’ which would have allowed a majority of lawmakers to end debate and force a vote on a bill.”
Not until Woodrow Wilson raised a ruckus in 1917 were any changes made to Burr’s calamitous alteration, and those changes proved to be marginal at best. The filibuster remains the same dangerous tool Burr blundered into existence more than two centuries ago.
How perfectly American, that: A dodgy power move behind closed doors unleashes centuries of galling consequences. It puts one in mind of another perfectly American legal calamity from the same century. The granting of personhood rights to corporations in the 1886 Santa Clara v. Southern Pacific Railroad Supreme Court decision only came to pass because of recklessly unethical behavior by some railroad lawyers, journalists and a justice.
Put them together and what do you get? Corporations with the same 14th Amendment rights as breathing humans able to buy senators who can filibuster to death any and all legislation vital to the people merely by saying, “I object.” Perfect.
That really is all there is to it these days. People think “filibuster” and Jimmy Stewart in Mr. Smith Goes to Washington might come to mind. For me, it’s “The Stackhouse Filibuster” episode of The West Wing: A politician stands alone in the Senate, holding forth on the righteousness of their cause, or maybe reads aloud some recipes for dip. It doesn’t matter, so long as they hold the floor, do not stop speaking, and do not sit down.
In 2013, Ted Cruz graced us with a faux filibuster against the Affordable Care Act which involved his very public failure to comprehend the moral behind Green Eggs & Ham. A more proper version of what people think the filibuster is came that same year from another Texas politician named Wendy Davis. Seeking to derail a ruinous abortion bill, Davis deployed a catheter and stood the gaff for 11 hours non-stop to shout the bill down. Though it went on to passage, the bill did not pass that day.
Another prime example of the practice came in 2010, when Bernie Sanders rose in opposition to a deal between then-Vice President Biden and then-Majority Leader McConnell to extend the massively damaging Bush-era tax cuts. “You can call what I am doing today whatever you want. You can call it a filibuster. You can call it a very long speech,” Sanders said that day. “I am simply here today to take as long as I can to explain to the American people the fact that we have to do a lot better than this agreement provides.” Sanders spoke for almost nine hours before yielding the floor, and his performance made him a politician of national standing.
That is the filibuster as I understand it from TV and movies, but the Senate ain’t TV and movies. In the Senate, all you have to do is notify the leadership of your party that you intend to “filibuster” a bill. When the moment arrives, you speak the magic words: “I object.”
If the bill is not being passed by way of reconciliation, as this most recent COVID relief bill was, everything stops. If there are not 60 votes for “cloture” to shut down the filibuster, that’s the ballgame. Worse, the senator doing the filibuster does not even have to be in the room, much less be required to hold the floor. They can simply drop the ‘buster, walk out the door, and grab a steak at the Capital Grille.
The filibuster — gruesomely abused by senators laying siege to the civil rights movement for decades, then abused again to tie down virtually every piece of legislation offered by the Obama administration — has come under intense scrutiny of late. Democratic President Joe Biden has a thin but very real Democratic majority to work with in the House and Senate, a gift from the great state of Georgia that could not be timelier in the aftermath of the Trump administration.
Beyond the vivid horror of an ongoing pandemic that has killed more than half a million people in this country alone, Biden is faced with an unprecedented avalanche of immediate crises. The ocean is coming, the right to vote is under national assault, cops are still regularly murdering people of color, people need jobs and our national infrastructure needs rebuilding, the crisis at the southern border will never end without a radically different immigration policy, and that’s just the first page of a very long to-do-NOW list.
The filibuster as it currently exists cannot be allowed to stand if real progress in these great struggles is to be made. Minority Leader Mitch McConnell and his cohort of Trump hostages simply cannot be allowed to wield such unspeakable power from the minority, and a growing chorus of Senate voices is rising to agree.
“The filibuster must go,” said Sen. Ed Markey in January. “It’s something that’s rooted in a racist past, and it’s used today as a way of blocking the progressive agenda which President Biden is proposing — [including] environmental justice, racial justice, economic justice.”
“Americans should not be robbed of a living wage by archaic Senate rules and procedures — including the filibuster,” said Sen. Chris Van Hollen last month. “We must increase the minimum wage, and I’ll keep pushing until we get it done.”
“The sort of filibuster usage we see makes it impossible to do some very basic things that the American people demanded of us,” said Sen. Martin Heinrich last week.
“I’m in favor of abolishing the filibuster,” said Sen. Alex Padilla this past Sunday. “There are a couple Democratic senators who have said they are not there yet. If we continue to see obstruction from our Republican colleagues as we saw through this COVID relief package, I think the patience is going to wear thin, even on moderate Democrats. But we will see.”
“We must pass a comprehensive agenda to guarantee the rights and dignity of everyone in this country,” said Sen. Bernie Sanders in July. “And that means, among other things, reauthorizing and expanding the Voting Rights Act, for which Congressman John Lewis put his life on the line. As President Obama said, if that requires us to eliminate the filibuster, then that is what we must do.”
The fate of this effort lies squarely in the hands of two Joes: Manchin and Biden. The senator from West Virginia has sworn a mighty oath to keep the filibuster because, he says, it inspires bipartisanship. “I’m not going to change my mind on the filibuster,” Manchin told Meet The Press on Sunday. “I will change my mind if we need to go to a reconciliation to where we have to get something done, once I know they have process into it. But I’m not going to go there until my Republican friends have the ability to have their say also. And I’m hoping they will get involved to the point where we have 10 of them that will work with 50 of us.”
And as for President Joe? “His preference is not to make changes to the filibuster rules,” White House Press Secretary Jen Psaki said of Biden’s wishes on the matter. “And he believes that with the current structure that he can work with Democrats and Republicans to get work and business done. He’s also happy to hear from Sen. Manchin and others who have ideas about how to get the business done for the American people.”
Kinda makes you want to roll around in some broken glass for a while, doesn’t it? Even now, after everything that has gone down, after the Republican Party has shown the world exactly what it really is more times than can be counted, even now, calcified Democrats like Manchin and Biden still cling to the long-departed dream of bipartisan glory.
They do so at their own expense. Absent filibuster reform or outright abolition, none of President Biden’s priorities will see the light of day. Every Republican senator just voted against a bill that a massive majority of the country favors — true bipartisanship among the people, that! — and reconciliation was the only reason that bill survived the process. They can’t do everything that way, and with the filibuster as easy as an “I object” to deploy, that relief bill may well be the only legislation that gets passed this year.
Worst of all, lawmakers nuzzle up to the departed fiction of possible bipartisanship at the deep expense of the people. I’m so old, I remember when a mob of Republican voters sacked the Capitol and sought to murder the House speaker and vice president because they didn’t like the outcome of an election. These are the voters McConnell and his ilk cleave to now, because they feel they have to in order to survive the ongoing influence of Trump. The ongoing, infuriating futility of these attempts to “reach out” to the unreachable must stop. Most Republicans are not going to compromise, not now and not ever. Progress requires they be defeated by simple majority vote, and eliminating the filibuster is the only way that can happen.
In the face of increasing pressure, Manchin threw out an interesting lifeline over the weekend. He will not support the elimination of the filibuster, but he could be convinced that it needs to be more “painful” to use. To wit: No more “I object” and out the door nonsense. If you’re going to filibuster a bill, you have to do it the old-fashioned way. You have to want it, and you have to stay there and do it until you’re done.
Manchin’s idea received some tepid support from colleagues. “I think a common refrain that you’ve heard from so many members is: ‘If there’s going to be a filibuster it needs to actually be a filibuster that those who want to obstruct actually should make their case before the American people,’” said Sen. Jeff Merkley on Monday. “They should have to spend the time and energy to show up and hold the floor.”
It’s a mildly fun idea, if only because it forces McConnell’s caucus to sing for its supper for a change. Manchin’s idea does not eliminate the 60-vote threshold created by a filibuster, however, and an already sludgy process would be slowed even further if everything had to stop for interminable speeches from intolerable people.
No, the filibuster must be destroyed if any good is going to come from this Congress. Can it happen? Can Manchin and his cohort be convinced to change that old, bloody error of a rule?
“I feel like things change on a dime here,” said Rep. Pramila Jayapal on Monday. “And when we have several defeats of things that President Biden has promised and that we must deliver, like HR 1 voting rights, I think that that will move him. And we’re keeping up the pressure.”
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