End The Filibuster

Jonathan Chait on Sen. Sinema’s history of filibuster: ‘None of that is true’
Duration: 02:03 6-4-2021

Jonathan Chait, a columnist for New York Magazine, tells Lawrence O’Donnell that Senator Kyrsten Sinema is wrong when she argues that the filibuster was created by the Founding Fathers. Chait says, “The filibuster emerged by accident. It was a rules glitch … no one created it for any reason.”

“It is a tool that protects the democracy of our nation. Rather than allowing our country to ricochet wildly every two to four years back and forth between policies, the idea of the filibuster was created by those who came before to create comity and to encourage bipartisanship and work together,” Sinema told reporters at an event with Sen. John Cornyn (R-Texas) in Tucson, according to The Arizona Republic.

“To those who say that we must make a choice between the filibuster and ‘X,’ I say, this is a false choice,” Sinema added.

Senator Edward J. Markey, Democrat of Massachusetts: “If we want to protect the right to vote, we have to repeal the filibuster. If we want gun safety legislation, we have to repeal the filibuster. If we want to save the planet from climate change, we have to repeal the filibuster.”

Kyrsten Sinema could do something about the filibuster, but she won’t. The filibuster, the senator recently told reporters in Tucson, protects democracy. It fosters “comity” and exists “to help senators find bipartisanship and work together,” she said. Holding herself up as an example of bipartisanship in action, she added: “To those who say that we must make a choice between the filibuster and x, I say, this is a false choice.” The Senate isn’t working, she conceded, but said the “way to fix that is to fix your behavior, not to eliminate the rules or change the rules, but to change the behavior.” Asked why she missed the vote to create a bipartisan January 6 commission, the senator said only that she had to attend to a “personal family matter.”

Sinema’s reticence isn’t unusual, and as The 19th recently reported, the trait extends to more than her personal life. When the senator curtsied as she voted against including a $15 minimum wage in the last stimulus bill, she had a reason. She’d brought a chocolate cake for Senate staffers to share, and was acknowledging them as they thanked her. That doesn’t explain her jaunty thumbs-down gesture, or absolve her for the vote itself. Rather, the incident seems quintessentially Sinema: conservative ideology, overlaid with a cultivated flippancy. If Sinema cares about anything at all, it can be difficult to tell.

Constituent service may not be a top concern, for example. “Outside of calling her general office number, I don’t know how to get ahold of this woman,” a Tucson-area labor leader told The 19th. The leader, Trish Muir of the Pima Area Labor Federation, said that the senator’s Tucson office appeared unoccupied. Her opposition to filibuster reform begs other questions. Sinema co-sponsored S.1, a comprehensive voting-rights bill that earned its designation as a marker of its perceived importance. Yet Sinema steadfastly clings to an obstacle in the bill’s path to passage: the filibuster. The answer she gave reporters in Tucson on Tuesday is nearly identical to comments she made in April, when she suggested that “the solution is for senators to change their behavior and begin to work together, which is what the country wants us to do.”

Sinema’s commitment to bipartisanship may be proof the senator possesses a coherent ideology after all. But her filibuster comments in Tucson are proof that ideology is based on an alternative history and a false set of facts. Far from being a way for the Senate to discover “comity,” the filibuster was used historically to block major civil-rights bills from passage. As a tool it was useful principally to the defenders of Jim Crow and their allies, not to dewy-eyed bipartisan dreamers. By co-sponsoring S.1, Sinema has thrown her support to the opposing side of history — in theory. If she’s really serious about voting rights, however, she’s trapped herself in an uncomfortable position. If she wants to keep the filibuster in place, she empowers the modern-day descendants of the old segregationists.

Perhaps she’d like to think such descendants do not exist, that today’s GOP is not the party of Jim Crow. The failure to create a January 6 commission — an endeavor she had backed, and had urged Republicans to support — ought to tell her something else. The GOP’s decision to rebrand the January 6 Capitol riot as a simple protest, marred by a handful of agitators, is as inevitable as it is disturbing. The party had been moving to the right before Donald Trump ran for office, and his presidency obviously accelerated its trajectory. Now it can hardly admit the rot in its heart. There will be no reckoning, no penance, no truth and reconciliation. Bipartisanship might still be possible, but only if a Democrat concedes significant ground to a party that opposes voting rights for liberals as a matter of course.

Sinema’s constituents may understand this, even if she doesn’t. Sixty-one percent of Arizonans polled by Data for Progress in March said they prioritize passing legislation over keeping the filibuster. That may help explain why Sinema’s favorability ratings have begun to drop. The same month, the Arizona Public Opinion Pulse poll found that 50 percent of Democratic voters held favorable views of the senator. By contrast, 79 percent of the party’s voters reported favorable views of Arizona’s other Democratic senator, Mark Kelly, who hasn’t endorsed ending the filibuster but hasn’t been vocally defending it either. Those polling results indicate something about the broad appeal of Sinema’s moderate approach, though on some issues, she and Kelly aren’t far apart. Neither senator has endorsed the PRO Act, for example, despite the urging of labor groups.

Beyond her record, however, Sinema’s failures include her public persona. In this, she is not alone. Senator Joe Manchin of West Virginia is a match for Sinema in terms of his commitment to the filibuster, and his statements in its defense are equally ahistorical and ill-considered. There’s no question, either, that women in power are held to different, inequitable standards of conduct. Yet for any senator the bar is necessarily high. That’s the bargain a politician strikes with the public. In exchange for power, a senator is accountable not only to her peers in office but to the press and to voters. Instead, the public gets Sinema wearing a “Fuck Off” ring. If the public opinion doesn’t matter to her, and if passing S.1 doesn’t matter either, then what does? What makes the filibuster so attractive to any Democrat right now? In lieu of answers, Sinema leaves onlookers to assume an ugly truth. She isn’t in office to pass legislation. She’s there for herself.

FILIBUSTER NOT IN THE CONSTITUTION

It is a centuries-old Senate practice whereupon Senators in the minority could take the floor and talk endlessly, never agreeing to formally end debate so the majority could vote. They’d talk the legislation to death, in the process shutting down all other Senate business. The House never permitted it, always allowing a simple majority to shut down debate.

In the Senate, the idea was to make sure the minority was heard. But over the years, the rule was exploited to actually stop legislation altogether.

Southern Democrats used it to block anti-lynching legislation in the 1930s and civil-rights laws in the 1950s. Not until June 10, 1964, were anti-segregationists able to muster enough votes under Senate rules to cut off a filibuster on a major civil-rights bill — after a staggering 60 days of debate.

Then in 1975, the Senate modified the filibuster. Senators could now close debate and bring legislation to the floor if they had 60 votes to do it. Since then, the minority doesn’t have to monopolize the floor and debate endlessly, shutting down all business. Threatening to do so is enough to hold up a bill.

Call it a fake filibuster.

In recent years, Republicans have benefited from the 60-vote rule. During President Barack Obama’s first two years in office, the Republican Senate minority used it to kill pro-union legislation, the Dream Act, gun control and a federal minimum-wage hike.

Minutes after Trump announced his Supreme Court nominee, Schumer proclaimed that “on a subject as important as a Supreme Court nomination,” there have to be 60 votes to move forward.

That’s politics. But DC insiders talk about the 60-vote rule as if it were sacrosanct, the holy grail of democracy. “It’s the way our founding fathers set it up,” says Sen. Bill Cassidy (R-La.).

Sorry. That’s not the case.

The framers designated five circumstances requiring a supermajority: convicting an impeached president or other high officer, amending the Constitution, ratifying a treaty, overturning a presidential veto or expelling a member of Congress. That’s the whole list, and passing laws and confirming nominees aren’t on it.

At the Constitutional Convention, the framers considered requiring a supermajority in the Senate to pass laws, but repeatedly rejected the idea.

James Madison explained in Federalist No. 58 that it would give the minority control over the majority. The “principle of free government would be reversed.” Requiring laws to pass two houses of Congress and giving the president a veto were better ways to promote wise lawmaking.

Alexander Hamilton warned that a supermajority requirement would cause “tedious delays,” as it had under the failed Articles of Confederation. Just what we’re facing now.

Meanwhile, McConnell, a Senate lifer first elected in 1984, defends the 60-vote rule, telling colleagues not to “act as if we’re going to be in the majority forever.”

NYU law professor Burt Neuborne deplores these “rules that scratch my back today and yours tomorrow.” They protect career politicians more than the public: The 60-vote threshold dashes voters’ hopes that an election can produce real change.

Some call dropping the filibuster “going nuclear.” Actually, it would be a return to what the framers envisioned — “going original.”

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NEW YORK TIMES

Before the Civil War, the filibuster was used to protect the interests of slaveholding states. And in the 20th century, conservative Southern Democrats repeatedly used filibusters to block civil-rights legislation, including an anti-lynching bill.

Since then, senators from both parties have used marathon speeches to challenge majority rule on issues including gun control, judicial nominees and health care.

But colorful, marathon speeches are increasingly rare. The Senate began modifying the rules in the 1970s, when senators became concerned that talking filibusters reflected poorly on the Senate and endangered the health of older members. Today, the mere threat of a filibuster is enough: Senators can keep contentious measures from reaching the floor just by registering their objections privately.

It can be a test of stamina.
An early practitioner of the dramatic filibuster was Huey Long, the Louisiana Democrat, who fought against provisions of Franklin Roosevelt’s New Deal.

In one 1935 speech, lasting more than 15 hours, Long read from the Constitution and shared recipes for fried oysters and pot liquor. He was foiled by a 4 a.m. bathroom break. (To hold the floor, you have to be present on the floor.)

In 2010, when Mr. Sanders used a filibuster to protest the Obama administration’s plan to continue the tax policies of George W. Bush, his monologue lasted eight hours. Mr. Sanders, fueled by oatmeal and coffee, felt his legs cramping and his speech growing hoarse.

“I was afraid that after two or three hours I’d have nothing more to say or I’d be tired or have to go to the bathroom,” he said afterward. “But I was pleased.”

One of the most memorable performances of the past decade came from Senator Ted Cruz, Republican of Texas, in 2013. It was a procedural tactic and not technically a filibuster, but it might hint at things to come with so many presidential aspirants in the chamber.

In a bid to defund the Affordable Care Act, Mr. Cruz spent 21 hours blasting politicians in “cheap suits” and “bad haircuts,” praising the hamburgers at White Castle and even reading some of his daughters’ favorite stories, including “Green Eggs and Ham” by Dr. Seuss.

That same year, Senator Rand Paul, Republican of Kentucky, used a real filibuster to delay the nomination of John O. Brennan to lead the Central Intelligence Agency. Mr. Paul said his real goal was to get the Obama administration to say that it would not use drone strikes against American citizens on United States soil.

After 13 hours, he yielded the floor. “I’ve discovered that there are some limits to filibustering,” he said, “and I’m going to have to go take care of one of those in a few minutes here.”

Tradition? Or a ‘Jim Crow relic’?

Critics of the filibuster note that its most significant use was to impede progress on civil rights for Black people. Last year, former President Barack Obama called the tactic a “Jim Crow relic” as he gave a eulogy for John Lewis, the Georgia congressman and civil-rights pioneer who died in July.

Southern Democrats used the filibuster to block or delay anti-lynching measures in the 1930s, bills outlawing employment discrimination in the 1940s and other civil rights legislation in the 1950s and ’60s.

“The fights over filibuster reform for most of the 20th century were intricately tied to its impact on Civil Rights,” said Sarah A. Binder, a senior fellow at the Brookings Institution and a professor of political science at George Washington University.

The record-holder for the longest solo filibuster remains Strom Thurmond, the segregationist senator from South Carolina who gave a 1957 speech lasting more than 24 hours, sustaining himself on sips of orange juice, pieces of hamburger meat and bits of pumpernickel.

Thurmond and other Southern Democrats failed in that attempt to block the bill, but they used their clout on other occasions to stall other civil-rights changes. In 1964, despite a 14-hour filibuster by Senator Robert C. Byrd, Democrat of West Virginia, President Lyndon Johnson won passage of a civil-rights bill with bipartisan help. Mr. Thurmond became a Republican, but Mr. Byrd remained a Democrat, serving 51 years.

His successor, Mr. Manchin, counted Byrd as a mentor and said he would do his best to follow in his footsteps in preserving Senate traditions. Today, he wields outsize influence as a centrist Democrat in an evenly divided chamber, making his position on filibuster rules critical.

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Harry Reid, center, the Senate majority leader, with Senator Charles Schumer, left, and Senator Dick Durbin during a 2013 discussion on filibuster rules.
Harry Reid, center, the Senate majority leader, with Senator Charles Schumer, left, and Senator Dick Durbin during a 2013 discussion on filibuster rules.Credit…Stephen Crowley/The New York Times
How the filibuster started as a loophole and evolved.
The filibuster was not something the founding fathers of the United States had envisioned.

In the late 18th century, both the Senate and the House had rules allowing majorities of their members to cut off debates and bring measures to a vote. But in an 1806 effort to clean up its rule book, the Senate scrapped that regulation.

The filibuster was an unanticipated outcome of that procedural change, Professor Binder said.

In 1917, amid bitter debates over U.S. participation in World War I, the Senate adopted the cloture rule, allowing two-thirds of the senators to close debates and bring a measure to a vote.

The Senate made further changes in the 1970s, including reducing the supermajority requirement to 60 votes, from 67, and allowing more than one pending bill on the floor simultaneously. The changes permitted the Senate to move on to other business while theoretical debates on blocked items continued indefinitely and essentially rendered talking filibusters obsolete — except for dramatic effect.

At the time, Democrats held a commanding majority, but the margins have narrowed, with Republicans taking control for extended periods.

In 2013, Senate Democrats had the upper hand, 53 to 45, and ended the minority party’s ability to filibuster most presidential nominees after years of frustration over Republicans’ blocking of Mr. Obama’s choices for federal judgeships and cabinet posts. They left the filibuster for Supreme Court nominees untouched.

Then they lost control of the Senate. Four years later, when Republicans held both the presidency and the Senate, they voted to lower the threshold for advancing Supreme Court nominations from 60 votes to a simple majority.

But the supermajority rule remained unchanged for legislation, to the frustration of President Donald Trump, who unsuccessfully lobbied Senator Mitch McConnell of Kentucky to use his power as majority leader to scrap the filibuster.

In the first months of Mr. Biden’s administration, Republicans have yet to use the rules to block any of his legislation, but battles are on the horizon. Some Democrats argue that filibuster reform is the only way to overcome united Republican opposition to pass a voting-rights bill or laws to bolster labor rights or to reform immigration policy.

Mr. McConnell, who in January tried and failed to extract a pledge from Democrats to leave the filibuster alone, defended the status quo in dramatic terms on Tuesday, warning of a “scorched earth” response if Democrats should dare to “break the Senate.”