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Could Vice President Harris Take a Page From Nixon and Challenge the Filibuster?

The filibuster is not in the Constitution. It’s not part of any law. And it’s damaging the U.S.

Vice President Kamala Harris is pictured in the South Court Auditorium at the Eisenhower Executive Office Building on June 2, 2021.

Yesterday Senate Majority Leader Chuck Schumer held a vote in the Senate to simply open a discussion on the Freedom To Vote Act, authored by Senator Amy Klobuchar and co-authored by Senator Joe Manchin. After the failure of the For The People Act to get even one single vote from any Republican, Manchin told his fellow Democrats that he could tweak the legislation to both protect the vote and get Republican votes. Clearly, he failed.

But the bill did functionally get 50 votes and, with the Vice President’s tie-breaking vote as President of the Senate, that’s enough to make it into law according to the Constitution.

But it was stopped by the filibuster.

The filibuster is not in the Constitution. It’s not part of any law. And it’s damaging America.

The Founding generation were almost universally opposed to anything resembling the filibuster; James Madison fought against (political) minority rule right up until his death in 1836.

Today’s filibuster was fine-tuned into its current form by the “Grandfather of the Confederacy” John C. Calhoun, and its only purpose then was to block discussion of legislation that involved slavery in the South. After the Civil War, it was still used to prevent equal rights for African Americans and other minorities…as it was yesterday.

Historian Adam Jentleson notes, “[F]rom the 87 years between when Reconstruction ended until 1964, the only category of legislation against which the filibuster was deployed to actively stop bills in their tracks was civil rights legislation.”

The filibuster is just a rule the Senate has decided to impose on itself and that it can change anytime it wants.

And it’s an unconstitutional rule, although senators have found it such a convenient place to put blame for inaction (rather than on themselves) that nobody has challenged it as such.

But the Constitution is clear. Each state has two senators who represent it (Article I, Section 3). And, wrote the Framers in Article V of the Constitution, “[N]o state, without its consent, shall be deprived of its equal suffrage in the Senate.”

Democrats in the Senate represent 41 million more people than Republicans and hold 51 out of 101 Senate votes (including the VP), yet they’re told that under the senate rules they can’t exercise or adequately represent either of their majorities. Instead, a mere 41 Republican senators can block their actions through the filibuster.

That is a clear and egregious loss of states’ “equal suffrage” guaranteed in the Constitution. Most Americans know of the principle as “one person, one vote”: the concept that no citizen’s vote has more power than anothers’. Or, in this case, no state has more power in the Senate than any other state.

But in the Senate right now, 41 Senators have the power to block the votes of 59 others and thus kill any legislation they don’t like — including urgently needed laws like the Freedom To Vote Act, the John Lewis Voting Rights Act or the For The People Act. That is not “equal suffrage.”

Back in January of 1957, Vice President Richard Nixon and President Dwight Eisenhower had just been re-elected in the 1956 election. Nixon was presiding, as President of the Senate, over the opening session of the 85th Congress, and an issue of amending the Senate filibuster rule came before him.

Nixon opined that the supermajority requirement then needed to change the filibuster was unconstitutional under the concept of equal suffrage.

The Senate should be able to change its rules, he said, by a simple majority vote because the power of the Senate to change its own rules was authorized by the Constitution and the Constitution didn’t specify it was one of the three special issues (impeachment, ratification of Constitutional amendments, and treaties with other countries) that required supermajorities.

Nixon’s challenge was later cited by both Vice Presidents Humphrey (1967) and Rockefeller (1975) and became the basis by which Senate Majority Leaders Harry Reid and Mitch McConnell carved holes into the filibuster (for approving cabinet officers, federal judges and Supreme Court justices) with simple majority votes in 2013 and 2017.

Challenging the filibuster on a constitutional basis is not a new or unique idea, although it’s gotten far too little coverage in the press (probably because most Americans don’t even understand what the filibuster is). I last ranted here about it in March of this year including a dive into its racist history, as well as in January.

The Brennan Center for Justice did a deep dive into this topic a full year ago and came to the same conclusion: the filibuster is a relic and almost certainly violates the spirit, if not the text, of the Constitution. As they noted, “[T]he filibuster continues to undermine a real democracy.”

Constitutional law professors Erwin Chemerinsky and Burt Neuborne similarly proposed in a LA Times op-ed in March of this year that Harris expand on the example of Nixon and simply declare the filibuster unconstitutional, forcing the Senate to deal with the issue on a constitutional rather than a purely political basis.

The fear cited by Democrats for eliminating or substantially changing the filibuster is that the Senate may end up in Republican hands and then they’d have a hard time blocking legislation to which they object.

But isn’t majority rule the essence of democracy?

Instead, since the 1960s, the filibuster has become the favorite anti-democratic tool of well-funded special interests like the American Petroleum Institute, the US Chamber of Commerce, and Big Banking to prevent any sort of meaningful action on climate change, labor rights and consumer protections (among other things).

For example, after the brutal 2012 slaughter of 20 first-graders and 6 adults at Sandy Hook, Senators Joe Manchin (D-WV) and Pat Toomey (R-PA) put together a modest bill to increase the use of background checks to purchase weapons.

Fully 55 senators supported the legislation, as did 80–90% of the American public, but Republicans beholden to the gun industry launched a filibuster, killing the legislation by requiring 60 votes for passage.

Given the demographic and political changes in America today — including the substantial shift in the Overton Window defining what’s politically normal or acceptable to discuss in the media (who could have imagined five years ago that Bernie Sanders would be driving the mainstream of the Democratic Party?) — ending Republican obstruction and doing the people’s business that’s overwhelmingly supported in poll after poll is essential to preserve Americans’ faith in our system.

In large part because of the filibuster that faith has collapsed in the past few decades; it’s one of the bigger factors that led to Trump, charging that “the system is rigged,” winning the White House in 2016. We have to restore faith in American democracy, or he or someone like him will be back in power in 3 years.

Democrats must stop being afraid of their own shadow (Carl Jung pun intended) and get things done for the American people.

The disaster of Democrats being, once again, seen as hapless and impotent will do far more to advance the Republicans’ antidemocratic crusade (by causing Democrats to lose elections in 2022 and 2024) than any rule in the US Senate.

And wouldn’t it be extraordinary to have our first African American and female Vice President puncture the weapon used by mostly-male white supremacists to fight civil rights in the US Senate for over 200 years?

Blow up, or at least substantially modify, this unconstitutional filibuster now!

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