The Democrats, who hold 50 Senate seats with Vice President Kamala Harris, are eager to push President Joe Biden’s big issues, from climate change bills to the Covid-19 relief effort. Fearing that Republicans will use their filibuster to block anything they introduce, a growing number of Democrats are calling for the repeal of this Jim Crow relic, as former President Obama once called it.
McConnell, who wants to retain his power, is now defending filibustering, arguing that the Senate should retain its power in the name of debate and consensus building. On Tuesday, he tweeted that if Democrats ever attacked key Senate rules, it would rob the institution of its approval and civility. A destroyed Senate has no chance of functioning. For a senator who mastered the art of scorched earth, that statement was the height of hypocrisy.
For now, McConnell is counting on moderate Democratic sentences. Joe Manchin (West Virginia) and Kirsten Sinema (Arizona) said they would not support repeal of the rule.
Regardless of how the obstruction battle plays out, it’s important to understand why McConnell’s arguments don’t make sense. The idea that obstruction is the source of civility could not be further from the truth. It is a rule that is not in the Constitution, but it is a rule that the House of Lords applied in the 19th century. This rule gradually took hold in the 20th century and was used throughout much of American history as a pun against vital measures. In 1917, the Senate adopted a shutdown rule that allowed two-thirds of the Senate to end debate (Senate reformers reduced this number to three-fifths of all Senators, or 60 votes, in 1975).
Obstruction, first used sparingly in high-level battles, became a striking strategy of Southern Democrats – then deeply divided between Northern liberals and Southern conservatives – to block civil rights legislation in the 1950s and 1960s. Liberal senators of the time considered this system undemocratic, and the 1951 Leadership Conference on Civil Rights made the eradication of obstructionism one of its main goals, along with the criminalization of lynchings and the end of segregation. Senator Strom Thurmond, a racialist from South Carolina, famously set the record for the longest speech by filibustering the 1957 Civil Rights Act for over 24 hours, and a well-organized filibuster nearly derailed the historic 1964 Civil Rights Act.
Since the 1970s, obstruction has become a common tool of guerrilla warfare. In his new book Kill Switch: The Rise of the Modern Senate and the Overthrow of American Democracy Adam Jenlson, who worked for former Democratic Senate Majority Leader Harry Reid, provides a powerful historical account of how the 60-vote threshold for legislation had a devastating effect on the Senate’s ability to run the country. Instead of allowing the Senate to flourish as a great deliberative chamber, it has paralyzed the legislative process and rendered Congress ineffective. Now senators don’t even have to filibuster – just the threat of filibustering can delay legislation.
Since Republicans have no interest in a strong federal government, immobilizing the Senate serves their political goals. Under McConnell, the GOP accelerated the use of this political weapon during the Obama administration, blocking judicial nominations and stifling attempts at immigration reform and gun control. It was these obstacles that led Reid to finally opt for the so-called nuclear option in 2013 and end the filibuster for presidential appointments, with the exception of appointments to the U.S. Supreme Court. McConnell, who warned Democrats they would regret the decision and showed why when Republicans won a majority in the Senate in 2017 – and put an end to filibustering of Supreme Court nominees by clearing the way for Judge Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
The cost of obstruction was enormous. Congress has lost the ability to pass laws. The Republicans, who already have disproportionate power in the Senate because the House of Lords gives small states as many representatives as large ones, have abused the filibuster. As a result, Democrats have failed to pass reforms in areas like climate change – even though a majority of Americans support those reforms. So the serious problems of this country will only get worse.
The inability to get major legislation through the Senate is one of the main reasons presidents have increased their use of executive orders. The problem is that executive action is always limited. Presidents cannot make laws, they must work within the framework of existing laws. The enforcement measures are also of a temporary nature. Presidents can make changes at the stroke of a pen, but their successors can just as easily reverse those decisions. This leads to a superficial approach to government that fails to address long-term systemic issues such as racial injustice or the climate crisis. It also leads to policy changes without the legislative imprimatur that is at the heart of our democratic process and has led to long-term programs like Social Security and Medicare.
There is no evidence that obstruction contributes to civility. Indeed, the increased use of the filibuster coincides with the most divisive and polarized periods in American political history. The two-party system on Capitol Hill has collapsed in recent decades, in part because filibustering has encouraged lawmakers to take the easy way out and stick to party positions rather than work together to reach a compromise.
As long as the filibuster debate is going on, no one should take McConnell’s arguments seriously. He certainly has the right to defend his filibustering as partisan, but he should at least be honest about it instead of harboring a fantasy that he is acting in the name of unity. But it’s expensive to keep the filigree bastion in its current state. Obama was right. It’s a Jim Crow legacy that still puts us decades behind what we should be today in public policy.