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Democrats cannot erase the history or hypocrisy of the Senate filibuster

Democrats cannot erase the history or hypocrisy of the Senate filibuster
© Greg Nash

President Biden has come out this week against the Senate filibuster as a “relic” of the Jim Crow era. In these times, it is a virtual mantra on Capitol Hill that the filibuster is synonymous with racism and people supporting it are presumptively racist. That very point was noted by cable news host Al Sharpton, who threatened to denounce members as racist if they support the rule. The only thing more dramatic than such historical revisionism is the political revisionism underlying this new national campaign.

The filibuster is more a “relic” of the Julius Caesar era than the Jim Crow era. In ancient Rome, the filibuster was used to force the Senate to hear dissenting voices, including an opposition of Cato the Younger to Julius Caesar returning to Rome. The foundation for the filibuster today can be traced to an argument by former Vice President Aaron Burr that led to a change in the early 1800s. The minority has used versions of the rule to block or force consensus on controversial legislation, ranging from war actions to oil mandates. It was not created in the Jim Crow era.

But Biden is correct that some of the most abusive uses of the filibuster was by segregationists in the 1950s, as embodied in Strom Thurmond, a South Carolina Democrat, who set the record with filibustering the Civil Rights Act for over 24 hours. The filibuster was designed as a protection for the minority in what is often called “greatest deliberative body.” It is not inherently racist. If that were the case, every majority rule would be racist because all of our racist legislation was passed by majority votes, including bills that supported slavery or target minority groups.

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A few years back, Democrats cried foul over the notion of eliminating the filibuster. They did not argue the rule was the embodiment of racism but rather the heart of the Senate. Biden spoke in the Senate in 2005 against ending the filibuster. So did Charles Schumer, who said it put the Senate “on the precipice” of a constitutional crisis, as “the checks and balances which have been at the core of this republic are about to be evaporated by the nuclear option.” Now as Senate majority leader, Schumer decries the same filibuster as the racist rule forged by segregationists.

Other leading Democrats also denounced prior moves to end the rule as destroying any hopes for political consensus. Barack Obama denounced the rule as a racist device back when he was a member in the Senate and condemned its elimination as an obvious effort to establish party control by shifting “the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet.” He added, “If the majority chooses to end the filibuster and if they choose to change the rules and put an end to democratic debate, then the fighting and the bitterness and the gridlock will only become worse.”

Obama served in a Senate where Republicans had a clear majority. The Senate is now divided right down the middle for a split that allows Vice President Kamala Harris to break ties. That is in effect the party control feared by Obama. Harris denounced the idea just a few years back and asked Mitch McConnell, at the time Senate majority leader, to preserve the filibuster to protect the “rules, practices, and traditions” supporting members in the minority. She opposed “any effort to curtail the existing rights and prerogatives for members to engage in robust and extended debate as we consider legislation in this body in the future.”

There was no mention about Jim Crow or the filibuster as racist. Yet it has transformed into a rule that only Bull Connor, the enforcer for segregation in Birmingham, would embrace, at least according to the perspectives by Sharpton. In reference to Joe Manchin and Kyrsten Sinema, who back the filibuster as a traditional rule protecting the minority, Sharpton has vowed “the pressure that we are going to put on” them is for calling the filibuster “racist and saying that they are, in effect, supporting racism.”

So members are now on notice that the rule designed to protect minority rights in the Senate will now be viewed as trying to deny minority votes in elections. It is that simple. Yet a great irony is that this original purpose of the filibuster has never been more essential. While one can make the case against the rule on purely democratic or majority grounds, such concerns previously raised by Obama and others are magnified today.

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The rule of consensus offers a vital balance to political interests opposed to working across the aisle. It hands Democrats a badly needed excuse to engage Republicans and seek middle ground. Without it, as Obama noted, “the fighting and the bitterness and the gridlock will only become worse.” For a country with violence on both sides, that fighting is now a literal and increasing danger. It is no accident that the filibuster has played the more dominant role during our periods of greatest division. It was used to try to forge consensus despite rising lethality of political rhetoric.

Ultimately, the rule does not save us from ourselves. Caesar made it into Rome, only to be murdered by some of the men debating his arrival. Jim Crow laws were state laws but the Senate allowed that disgraceful era of discrimination to happen. In the end, our laws are no better than we are, but we are worse off when there is little need for consensus.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.