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Why do we need a filibuster rule? Just look at today's political divisions

Why do we need a filibuster rule? Just look at today's political divisions
© Greg Nash

“If you want a friend in Washington, buy a dog,” is a quote often attributed, perhaps erroneously, to President Truman. When it comes to Sen. Joe ManchinJoe ManchinDelaware set to raise minimum wage to by 2025 Overnight Health Care: Takeaways on the Supreme Court's Obamacare decision | COVID-19 cost 5.5 million years of American life | Biden administration investing billions in antiviral pills for COVID-19 Manchin calls on Biden to nominate permanent FDA commissioner MORE, President BidenJoe BidenChinese apps could face subpoenas, bans under Biden executive order: report OVERNIGHT ENERGY:  EPA announces new clean air advisors after firing Trump appointees |  Senate confirms Biden pick for No. 2 role at Interior | Watchdog: Bureau of Land Management saw messaging failures, understaffing during pandemic Poll: Majority back blanket student loan forgiveness MORE may be thinking of offering his oft-biting dog, Major, to the West Virginia Democrat.

Biden has trolled Manchin and Sen. Kyrsten SinemaKyrsten SinemaThe Hill's Morning Report - After high-stakes Biden-Putin summit, what now? Tensions grow between liberals and centrists on infrastructure Manchin rebuffs progressive push for infrastructure guarantee MORE (D-Ariz.) in public speeches, denouncing both as those “two members of the Senate who vote more with my Republican friends.” In reality, Manchin and Sinema have voted 100 percent with Biden so far, more than such liberal icons as Sens. Elizabeth WarrenElizabeth WarrenOvernight Health Care: Takeaways on the Supreme Court's Obamacare decision | COVID-19 cost 5.5 million years of American life | Biden administration investing billions in antiviral pills for COVID-19 Democratic senators press PhRMA over COVID-19 lobbying efforts  Schumer vows to only pass infrastructure package that is 'a strong, bold climate bill' MORE (D-Mass.) or Bernie SandersBernie SandersOVERNIGHT ENERGY:  EPA announces new clean air advisors after firing Trump appointees |  Senate confirms Biden pick for No. 2 role at Interior | Watchdog: Bureau of Land Management saw messaging failures, understaffing during pandemic Overnight Health Care: Takeaways on the Supreme Court's Obamacare decision | COVID-19 cost 5.5 million years of American life | Biden administration investing billions in antiviral pills for COVID-19 Democratic senators press PhRMA over COVID-19 lobbying efforts  MORE (I-Vt.). That’s why the Washington Post gave Biden three more “Pinocchios” to add to his growing collection.

However, both Manchin and Sinema support preserving the Senate’s filibuster rule, and they are portrayed in the press as fighting for what is being called a “Jim Crow relic.” One reporter asked Sinema how she would respond to what critics are calling a “choice between the filibuster and democracy,” while the Los Angeles Times ran a column titled, “What's the matter with Kyrsten Sinema?

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In truth, the filibuster is no more racist than any other procedural rule. The irony is that, despite its abusive use in the past, this is arguably the most compelling time for a filibuster rule.

While Democrats and the media have painted anyone supporting the filibuster as anti-democratic, even racist, they overwhelmingly supported the rule when Democrats were in the Senate minority. As a senator, Biden denounced any termination of the filibuster as “disastrous” and declared: “God save us from that fate … [since it] would change this fundamental understanding and unbroken practice of what the Senate is all about.”

Senate Majority Leader Chuck SchumerChuck SchumerFive takeaways on the Supreme Court's Obamacare decision Senate confirms Chris Inglis as first White House cyber czar Schumer vows to only pass infrastructure package that is 'a strong, bold climate bill' MORE (D-N.Y.) previously warned the Senate that it was “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 a proposed elimination of the filibuster. Likewise, then-Sen. Barack ObamaBarack Hussein ObamaObama on Supreme Court ruling: 'The Affordable Care Act is here to stay' Appeals court affirms North Carolina's 20-week abortion ban is unconstitutional GOP senator: I want to make Biden a 'one-half-term president' MORE (D-Ill.) denounced those seeking to eradicate the filibuster as trying to change “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.”

Back then, the filibuster was the embodiment of “democratic debate” — and those words were echoed in the same newspapers and on the same television programs that now denounce the rule. When Sinema recently made the same defense of the rule as Biden, Schumer and Obama, she was attacked as mouthing specious, racist or reactionary talking points.

In reality, the rule did not originate as a racist device. Indeed, as I have previously written, it is more a “relic” of the Julius Caesar era than the Jim Crow era. In ancient Rome, the filibuster was used to force the Roman senate to hear dissenting voices; Cato the Younger used it to oppose Julius Caesar’s return to Rome and to denounce rampant corruption. It was viewed as protecting minority viewpoints in senate proceedings. In the United States, it can be traced to a procedural argument by former Vice President Aaron Burr to get rid of an automatic end to debate on bills in the early 1800s. It was not created in or for the Jim Crow era — and Cato the Younger was not the junior senator from Alabama.

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The rule has been used for different purposes, including, most infamously, to oppose 1950s civil rights legislation. Over the years, it has been modified, as in 1975 when the threshold to end a filibuster was reduced to 60 votes. However, both parties agreed that the rule was needed to force greater consensus in the Senate, which fashions itself “The world’s greatest deliberative body.”

There are good-faith arguments that filibusters frustrate democratic voting. However, this is arguably a time when the value of the rule is most evident and most compelling as a compromise-forcing legislative device. The Senate is split 50-50, a reflection of the country’s division. (The House is little better off, with a majority of just a handful of votes, the smallest majority since World War II.) That leaves Democrats struggling to pass bills based on the tie-breaking vote of Vice President Harris.

Democrats were able to circumvent the filibuster rule to pass a $1.9 trillion relief bill, with no need to compromise, by using a budget reconciliation tactic. Heavily laden with pork projects and few spending limits, that bill embodied the dangers of enacting legislation on simple “muscle votes.” Now, though, they want to push through non-budget bills that cannot be shoehorned into a budget reconciliation framework.

For example, many senators want to add as many as four new Supreme Court justices to give liberals an instant, controlling majority on the court. There also is a demand to make D.C. the 51st state. Notably, both moves are highly unpopular with a majority of voters. And Democrats are pushing an unprecedented federalization of elections to prevent states from requiring forms of voter identification that are popular with voters.

Pushing through such controversial measures with bare majorities and on straight party lines will only deepen the divisions and increase the rage in this country. So this is precisely a time when the filibuster can play a positive role, by forcing legislation to pass with a modest level of bipartisan support. It requires consensus and compromise at a time of growing, violent division.

Democrats, media figures and activists are aware of the hypocrisy over the filibuster rule and its long defense by Democrats as a positive democratic device. That is why there is a concerted effort to portray support for the filibuster as racist. It is a familiar pattern in silencing an opposing view: Frame the rule as racist, and dismiss the consensus arguments accepted just a few years ago in defense of the rule. You then pass bills on straight party line votes in the name of national unity.

The filibuster has gone through historic controversies through the centuries, from opposing Caesar to opposing civil rights. But as a consensus-forcing rule, its time may have arrived, to the chagrin of many.

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