How the Filibuster Has Already Undermined Democracy

Speaker of the House Nancy Pelosi joined U.S. Rep. Lloyd Dogget, D-Austin, in Austin March 22, and admitted that with the filibuster she sees no hope for the Senate passing abortion protections (Photo by John Anderson)

"They can do anything we can't stop them from doing."

That's the bluntest formulation of "catch-22" – the illegitimate, naked power at the symbolic center of Joseph Heller's novel of that name, set during World War II and published in 1961.

It's a literary coincidence that catch-22 echoes "Rule 22" – the U.S. Senate procedural rule that enables filibusters. Under Rule 22 – first enacted in 1917 – a minority of senators can indefinitely obstruct the majority from taking action, while anointing themselves with an aura of wounded innocence (famously reinforced by the 1939 Jimmy Stewart movie, Mr. Smith Goes to Washington). In fact, the U.S. Senate's filibuster has primarily been employed as a weapon of tyranny by which democracy is undermined, government enfeebled, and an unrepresentative minority imposes its will on Congress and the nation as a whole.

Under Rule 22 and related Senate procedures, the filibuster is shrouded in a halo of manufactured myths:

• That it is enshrined in the Constitution. In fact, the U.S. founders, having experienced the failure of the Articles of Con­fed­eration, explicitly avoided empowering minority rule or allowing endless debate, and the filibuster didn't fully take form until the 19th century.

• That the filibuster encourages spirited debate and embodies the Senate's historical role of legislative "deliberation." Instead, the possibility of productive debate is stifled by obstructionism, recently degenerated into the backstage notice of a "hold" that blocks bills from even being introduced in the upper chamber.

• Most perniciously, that the filibuster protects the rights of minorities. In the U.S. Senate, the filibuster has historically been employed as a way to entrench slavery, to empower white supremacy, and to prevent Black Americans from exercising their constitutional rights or enjoying a modicum of the opportunities experienced by everyone else.

In Defense of Whiteness

All this is laid out in detail by Adam Jentleson in his 2021 book, Kill Switch: The Rise of the Modern Senate and the Crip­pling of American Democracy. Jentleson, formerly an aide to the late Senate Majority Leader Harry Reid, D-Nevada, traces the early development of the filibuster, despite the prevailing conviction of the founders that legislatures should act by reasonable debate concluded by majority vote. That belief became so reflexive (or "normative") that virtually no one noticed that a revision of the Senate rules in 1806 (inadvertently eliminating the "previous question" motion) had indirectly made it possible for unscrupulous senators to block and defeat any bill by delay.

The first champion of obstruction was Sen. John C. Calhoun of South Carolina, a fanatical defender of slavery who with his fellow Southerners employed what wasn't yet called the "filibuster" to block any bill (e.g., creating a central bank) that he believed would weaken Southern power. Calhoun was an enthusiastic racist, described slavery as "a positive good" for those enslaved, and always had sufficient allies (in an era that still required a "talking" filibuster) to maintain a firewall against reform. After the Civil War and the collapse of Reconstruction and well into the 20th century, a string of white supremacist senators proved happy to protect Southern apartheid and to defeat any attempt to defend the human rights of all Americans (even to outlaw lynching). These extremely committed racists, such as Georgia's Richard Russell, South Carolina's Strom Thurmond, and North Carolina's Jesse Helms, were helped along by other obstructionists, including Austin's own Lyndon Baines Johnson – less personally invested in racism but twice as ambitious as these old segregationists, and whose road to Senate leadership and the White House went through the South.

Jentleson acknowledges that liberal senators occasionally employed the filibuster, without much success in policy but serving to sustain the myth of "minority rights." From early on, Calhoun and his allies promoted the aura of solitary heroism surrounding a lonely speaker fighting long odds. In actual fact, Jentleson writes, "In the eighty-seven years between the end of Reconstruction and 1964, the only bills stopped by filibusters were civil rights bills. … Only on civil rights did cloture become a matter of grand principle." ("Cloture" was the process established in 1917 by Rule 22, requiring a supermajority – initially two-thirds, now three-fifths, or 60 votes – to end debate and allow a majority vote.)

In 1964, the international pressure on behalf of the civil rights movement and cooperation from now-President Johnson finally overcame the filibuster to enact that year's Civil Rights Act, followed the next year by the Voting Rights Act. It was progress toward justice that had been delayed for a century, enabling the continuing oppression of millions of people by the defiance of a white supremacist minority empowered by arcane, reactionary Senate rules. Most recently, the VRA has been effectively gutted by the Supreme Court, the GOP is engaging in a nationwide effort to suppress minority votes, and the filibuster has enabled a Republican minority (now led by Kentucky Sen. Mitch McConnell) to hold the line against further reform.

In the current Senate, senators are no longer even required to hold the floor in order to block progress. An aide submits a "hold," and legislation intended to protect human rights – for example, the John L. Lewis Voting Rights Advancement Act, passed by the House – is automatically tabled in the Senate, via the "kill switch" of the filibuster, without a word of "debate" or deliberation. The historical result is the same: White minority rule is sturdily reinforced. This is where not only the John Lewis Act has been put on ice, but also many other vital efforts to safeguard human rights and individual freedom, including the Women's Health Protection Act designed to finally codify Roe v. Wade as federal law.

Let's See What Happens Now

When Kill Switch was published early last year, Jentleson could still believe that while "the outlook for democracy is grim … fixing the Senate itself is comparatively easy. … All it takes is 51 votes, political will, and a reasonable plan." In the 16 months since, the political will to deliver those 51 votes remains unattainable.

Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., decline to alter Senate rules to eliminate the supermajority requirement for cloture. As of Tuesday, May 3, both had issued statements that their views remained unchanged in the wake of the leak of the draft Dobbs v. Jackson ruling the night before, although Sinema did make clear she supports reproductive rights (Manchin is silent on that point). Activists in West Virginia and Arizona are currently organizing a May 23 "Sit-In to Save America," targeting Manchin and Sinema, but chances of progress this year are slim. Putative moderate GOP Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, have no interest in helping Democrats kill the filibuster even if they truly do care more about reproductive rights than voting rights. It's as though John C. Calhoun had never died.

The lack of federal protections for Americans' civil rights has allowed state legislatures to do whatever can't be stopped to restrict those rights, starting with those of minority voters. According to the non­partisan Brennan Center for Justice at New York University School of Law, since the 2020 election "legislators in at least 27 states have introduced, pre-filed, or carried over 250 bills with restrictive provisions … [that] would disproportionately impact voters of color." Texas gerrymanders, for example, have diminished the right to representation of both Black and Hispanic voters, while voting law procedural changes have already led to valid votes not being counted in the March party primaries (and perhaps this Saturday's local elections as well).

Earlier this year, I asked Doggett to discuss the effects of the Senate's filibuster on Congress as a whole, in the context of narrow Democratic majorities in the U.S. House and Senate.

"I think it's doing great harm," Doggett said. "It has no constitutional basis, and it borders on being unconstitutional, particularly in regards to voting rights. [And the filibuster] provisions have allowed two Democratic senators to hold up much of our agenda: voting rights, reproductive freedom, gun background checks, etc. It passes in the House, but none of it can move in the Senate, where majority rule is not the rule."

Some work, said Doggett, has been accomplished through budget reconciliation – which allows certain legislation (e.g., last fall's infrastructure bill) to be approved in the Senate by a simple majority. But reconciliation is subject to the rulings of the Senate parliamentarian; bills not strictly budget-related – e.g., immigration reform – fail by default, and unrelated legislation gets crafted into single stand-alone reconciliation bills, making them difficult to construct and harder to explain to voters.

When we spoke in February, Republican senators were blocking passage of the appropriations bill needed to avert a government shutdown in mid-March. They only relented after changes to the legislation – including provision of more COVID relief – that would not have been necessary without the threat of a filibuster. "That means we've been restricted to Trump-level appropriations, with the threat of a filibuster blocking any changes to the budget." Doggett criticized Manchin and Sinema for acting in "bad faith" – indicating their support for voting rights, budget changes, or other progressive legislation while refusing to support the rule changes that would make enacting them possible. Other Dem­o­cratic senators, he said, are now beginning to worry that if the Republicans regain the majority, Democrats will need the filibuster to block even worse legislation.

Some senators speak of the few current "exceptions" to the filibuster rules, such as reconciliation, as sufficient for most purposes – but that hasn't included expanding voting rights. "They say they're worried about being in the minority in the next Congress," said Doggett. "They ought to be worried about the future of democracy."

In sum, Doggett continued, "I can't say anything very hopeful about changes to the filibuster or the Senate rules. The filibuster has been used to deny the rights of Americans – it has a racist history." And on voting rights reform, he's not optimistic: "I can't see that happening."

He noted that Republican federal judges have been ruling against expanded voting rights, and he expects that to continue, especially in the short term. "If we passed the John Lewis Voting Rights Act tomorrow," he said, "the courts would say it's too close to the fall election to take effect this year."

For Doggett, the legislative and legal obstacles dictate that if anything is to be done, voters themselves will have to do it. "We need to use what we've got, and redouble our efforts in voting," he said. "It still can be done, and as bad as things are in Texas, for example, we still have more opportunity for voting than has been true of previous decades. We need to use it."

To put it in literary terms: If the Senate and the federal courts are against us, it remains for voters to turn out in historic numbers to alter the equation and defy the catch-22: "They can do anything we can't stop them from doing."

It will be up to us to stop them.