Is It Time to Abolish the Filibuster?
Archival Recording: Point of order. The councilwoman wishes to speak on this issue.
Archival Recording: Will the councilwoman yield her time?
Archival Recording: No. I will not yield.
Archival Recording: A filibuster?
Archival Recording: Will the senator yield?
Archival Recording: No, sir, I will not yield.
Joe Biden: The filibuster. The filibuster.
Barack Obama: The filibuster, another Jim Crow relic.
Biden: With regard to the filibuster, I believe we should go back to the position of the filibuster that existed just when I came to the United States Senate 120 years ago.
Trymaine Lee: The filibuster. It's part of the legislative process that most of us think we understand. Maybe you've seen a version of it in a movie.
Archival Recording: Will the senator yield?
Archival Recording: Will the senator yield?
Archival Recording: No sir, I'm afraid not. And we might as well all get together on this yielding business right off the bat now. (LAUGHTER)
Lee: A U.S. senator tries to derail a vote by standing in the chamber and talking and talking and talking until they bore their colleagues into submission. Or maybe even pulling something like this.
Alfonse D'amato: So when we get up and we talk about jobs remember, you know what it is? (MAKES NOISE) It's a parrot. It just talks. (MAKES NOISE) That's what it is. (MAKES NOISE) Yeah? Parrot. Parrot.
Lee: That's former New York State Senator Alfonse D'Amato in 1992, trying to block legislation that would've allowed hundreds of jobs to move from New York to Mexico.
D'amato: Whoever's watching this show now, they've gotta be nuts. It's 2:00. What time is it? (LAUGHTER)
Archival Recording: 2:00.
D'amato: 2:00, my gosh, you should go home, go to bed. If you have a job to get up to tomorrow there's something, you know, you may not have a job.
Lee: In reality, the filibuster is serious political business with a dark past as one of the most powerful legislative hammers used to break the back of racial progress. But the history of the filibuster as a cudgel of Jim Crow isn't exactly history.
We're seeing that right now, as the threat of a filibuster is colliding with the fight over the future of voting rights in this country. Today, a bill called H.R. 1 is sitting before Congress. It protects voting rights for Black folks and other minorities, and addresses things like voter access, election integrity and security, and reform of campaign finance laws.
Archival Recording: House Democrats are rethinking the entire U.S. voting system. They're pushing massive legislation, 791 pages to be exact, full of major changes to our elections.
Lee: After passing the House, H.R. 1 is now before the Senate. And some would argue the country's democracy is at stake. We're just months out from a contentious presidential election that was rife with false claims of voter fraud and stolen ballots.
And it was only a few weeks ago that Georgia passed some of the most restrictive voting laws in the country, aimed squarely at Black voters. Other states have similar plans in the works. At this point, the only way H.R. 1 can pass is without the option for Republicans to filibuster. There's a fierce debate on whether it's time to get rid of one of white supremacy's favorite legislative weapons.
Archival Recording: It's becoming essentially an existential question for Democrats, because as Republicans pass legislation across the country that makes it harder to vote, Democrats are looking at, "Do we wanna keep the filibuster? Or do we want to run in districts that we may never win again?"
Lee: Forty six Democrats are open to the idea of at least reforming it. But when it comes to getting rid of the filibuster, there's more hesitancy. President Joe Biden was cautious in a press conference last month.
Kaitlan Collins: At John Lewis's funeral, President Barack Obama said he believed the filibuster was "a relic of the Jim Crow era". Do you agree?
Collins: If not, why not abolish it, if it's a relic of the Jim Crow era?
Biden: Successful electoral politics is the art of the possible. Let's figure out how we can get this done, and move in the direction of significantly changing the abuse of even the filibuster rule first. It's been abused from the time it came into being, by an extreme way in the last 20 years. Let's deal with the abuse first.
Collins: It sounds like you're moving closer to eliminating the filibuster. Is that correct?
Biden: I answered your question.
Lee: Meanwhile, Republicans like Senate Minority Leader Mitch McConnell aren't letting go of the filibuster without a fight.
Mitch Mcconnell: This is a power grab. It's all about trying to take over the American election system.
Lee: I'm Trymaine Lee, and this is Into America. Today we take a look at how the filibuster has been weaponized and racialized over time. And ask whether American democracy might just be better off without it. Jelani Cobb is a staff writer at The New Yorker and a professional of journalism at Columbia University. He writes a lot about the collision of race, politics, and the right to vote. And let's just start with a little refresher course here, in case you were asleep during civics class. The Senate filibuster.
Jelani Cobb: Allows people in the Senate to hold up votes on legislation until you have the number of votes required to get cloture to close debate.
Lee: In order to get cloture, or in other words, stop consideration of a bill, Senate rules say you need three fifths of the Senate on board.
Cobb: And that is 60 people. If you have 50 votes plus the vice president, you can get what you want passed, but you don't have the votes to get past a filibuster.
Lee: So just because Democrats have the majority in the Senate right now with a tie-breaking vote of Vice President Harris, it doesn't mean they can get the bills they want signed into law, which leads us back to the stalled H.R. 1, the For the People Act.
Cobb: First off, H.R. 1 is kind of an omnibus bill. It's a real grab bag of Democratic reforms, some of which, oddly enough, it doesn't seem like there should be much political opposition to, but there is. One of the things that H.R. 1 does that I think is most important is establish standards for voting machines. (LAUGH)
Lee: Right. It shouldn't be a partisan issue.
Cobb: It should not be a partisan issue. Nobody wants-- voting machines that can be hacked. But this has run into a buzzsaw of opposition. And Mitch McConnell has decried as essentially a Democratic ploy. You know, other people on the Republican side have said that, you know, if this passes, they won't be able to win elections.
And they have a powerful tool in their arsenal, which is the filibuster. So effectively, we are at a crossroads. We have this hugely important Democratic reform bill and a Senate minority, or at least an equal partner in the Senate, who is not interested in allowing that to happen.
Lee: Can you give us a sense of where the filibuster actually came from?
Cobb: So, (LAUGH) the filibuster is part of a series of minoritarian aspects of American democracy, which in theory are good. So there are things that we normally do that give minorities more political power than they would have otherwise. One of the best examples of it is in order to change the Constitution or ratify an amendment, we have to have three quarters of the states vote along with it.
It's not a simple majority. The old joke is that, you know, democracy is three foxes and two chickens voting on what to have (LAUGH) for dinner, right? But that's not actually democracy, actually. Democracy would be that we need four votes out of five before we eat anything, meaning that the foxes then have to politic with one of the chickens and say, "Well, what do you think we can go for? Maybe we can get a vegan takeout thing," or something like that.
And so that's what it's meant to do, to give minorities a bit more political leverage than they would have otherwise, which hypothetically is a good thing. But in the case of the filibuster, it shows exactly how that can be abused. It's one of those other aspects of the rules which, on their face seem fair enough, and people don't necessarily understand what the implications are.
Lee: Is the filibuster part of the Constitution? And, like, was it always part of Senate rules?
Cobb: No. So the filibuster is not part of the Constitution, it's just an old Senate tradition. And it effectively evolved out of the lack of rules, actually. (LAUGH) It's not explicit in the Constitution. But for decades, the Senate did not even have formal strong rules about cloture, because they didn't really need any.
And the presumption was that you would, with a simple majority, close debate and move on to voting. But it wasn't until the late 19th century that you began to see senators using the open floor of debate to prevent a bill from ever coming to a vote.
And the filibuster's history is inextricable from the history of civil rights legislation. This comes to a head, really for the first time you see it in the context that it is notorious for, in 1922 with the Dyer Anti-Lynching Bill. The anti-lynching bill would've imposed penalties on counties where lynchings happened and law enforcement did nothing to prevent it from taking place.
They actually got this to pass the House of Representatives, but it was killed by a Senate filibuster in 1922, and it just kind of goes on from there. Notably, of course, famously in 1957, Strom Thurmond, South Carolina senator, does the 24 hour, I think 17 minute filibuster of the 1957 Civil Rights Act, which at that point was the longest filibuster in American history.
Lee: And I think that's the filibuster, or the kind of filibuster that people have in their mind, that there is this standing filibuster, you have to keep talking and running your mouth.
Lee: How often has that been the play? How has that changed, like, the standing filibuster compared to what we have today?
Cobb: We now have a system where you don't have to stand on the Senate floor. You know, Strom Thurmond, he was able to filibuster for 24 hours because Barry Goldwater, a senator from Arizona, would step in and hold the floor while Strom Thurmond ran to the men's room.
You know, they had a kind of last-minute, last-ditch strategy, which was that there was a bucket in a closet which would've (LAUGH) allowed him to keep one foot on the Senate floor while, you know, relieving himself in the closet. And that was the kind of emergency plan that they had for him. (LAUGHTER)
Lee: That's crazy.
Cobb: But these are the things that people had to consider, the contingencies that they had to consider at that point. Now you don't have that. (LAUGH) You know, a filibuster is--
Lee: What happens now? I was about to say, what do you do now? Do you just say, "Filibuster"? Like, how does it work--
Cobb: You simply raise an objection and you can prevent a bill from coming to the floor.
Lee: And that's it.
Cobb: It doesn't require any feats of, you know, stamina, or physical endurance, or (LAUGH) anything of the sort. And so it's become rote. It's also, over the course of its history, become increasingly deployed. And so the filibuster now is the default, as opposed to something that would happen on rare and particularly weighty and significant pieces of legislation.
As the Senate stands now, virtually nothing can get done. And the last time we saw Senate reform on this was around appointees, when the Democrats gained the majority in the Senate and really saw the way that the Republicans had abused the filibuster option in preventing Barack Obama's nominees from being appointed to their positions.
And so we had reform there. The Republicans, as a kind of tit for tat, removed the filibuster from Supreme Court nominations, which has kind of opened the floor for people saying that you should get rid of the filibuster all together. And that's the kind of conversation we're having now, you know, whether or not the filibuster really has any place in American democracy right now.
Lee: But I wonder if the filibuster has ever been used for good, either upholding our rights, empowering voters of color, anything?
Cobb: Offhand I can't think of, (LAUGH) I can't think of one. It doesn't mean that there wasn't.
Lee: People like Kentucky Senator Mitch McConnell argue that the filibuster does have a place, and have pushed back on arguments like Jelani's.
Mcconnell: Yeah, actually historians do not agree. It has no racial history at all, none. So there's no dispute among historians about that.
Lee: But that's unequivocally false. And the problem with the filibuster started way before the 1922 anti-lynching bill.
Cobb: It was one of the many mechanisms that people used to try to undo the advances that were coming out of the Civil War and Reconstruction, and, you know, with gaining momentum into the 20th century. And so, you know, that's what we're really looking at now.
We've kind of done ourselves a disservice by the way we've talked about the history, and that we've talked about the Civil Rights Movement by and large in the past tense, as a product of attitudes, that attitudes have changed, people's hearts have been opened, their sensibilities on matters of race have by and large broadened.
And there's public polling data to suggest that that's true. But what we have not talked about is the cold, transactional nature of interests. And we look at the ties between the filibuster and the voting legislation that we've talked about right now.
People who were disenfranchising Black voters in Mississippi, in Louisiana, in Georgia, in South Carolina, we've talked about that as an expression of racism, which it was. But it was also an expression of political interests. Those were the states that had the largest Black populations.
They didn't want Black people to vote because there were enough of us there to actually swing the direction of an election. That was why Jim Crow instituted these laws that, in their byzantine way, went about stripping the ability of Black people to vote.
Political self-interest. If we look at the changing demography of the United States, and, you know, the direction where we're headed, in terms of our population growth, and where people are coming from into the country, those same sorts of political self-interests have been resurrected.
And people have gone back to the historical playbook. Perhaps their hearts have been changed. Perhaps their sensibilities have been broadened. But their interests have not changed. And so that is why so much of the present looks so much like the distant past, so much like things that we thought were in the graveyard of bad history.
Lee: So there's something that struck me as I was getting ready for my interview with Jelani. Between 1917 and 1994, half of all successful filibusters were deployed against civil rights legislation. Half. Things like housing protections and laws against poll taxes and lynching. Half. So I asked Jelani, what progress could we have accomplished without the filibuster?
Cobb: I think that if the filibuster didn't exist, those legislative situations would've turned out differently. I don't know that they would've necessarily turned out successfully. (LAUGH) But I think that at least that tactic--
Lee: There is a difference.
Cobb: Right. I think that tactic would've been unavailable to people. People have been very ingenious and very committed about the preservation of white supremacy in the United States. And, you know, even with things like the white primary, which is something we don't really talk about anymore, but when it became impossible to prevent Black people from voting in the South, people developed tactics called the white primaries, where you would only prohibit Blacks from voting in the primary elections.
Texas often did that with Black people and Latinos, Hispanics. And so you have a choice, you can vote in the general election between two candidates that you probably have no interest in. And so I think that there are many tricks, many tools in this toolkit, the filibuster being one valuable one.
But if this is a fight, and you take away the left hook from your opponent, you still have to worry about the right hand. You still have (LAUGH) to worry about the upper cuts and jabs and all those other things. It doesn't mean that it's not important to have that off the table, but it means that the fight's not over.
Lee: I think it's amazing, whether talking about the filibuster or, you know, gerrymandering, or any number of political tactics that have been weaponized against Black folks, it's always striking to me just how powerful anti-Blackness actually is, and the many ways it manifests itself in our politics and every other institution in America. But just as a political motivator, economic anxiety, blah, blah, blah, it's anti-Blackness. And it continues to rear its head.
Cobb: Look, I talk to my students all the time about the Lincoln-Douglas debates, you know, which is significant, 1858, you know, Senate seat in Illinois, between two of the finest, most thoughtful statesmen that the country had produced to that point.
But they had seven whole debates essentially around the question of who America was for, whether America was ever intended to include Black people within the democratic fold. And when we look at, you know, just a year earlier, that Dred Scott decision and, you know, the famous words of Justice Taney, where he said, "A Black man has no rights that a white man is bound to respect."
And we've heard that quote all the time. You know, we see it everywhere. It's one of the most oft-cited quotes. But it's mis-quoted, because Taney is not expressing his own opinion. Taney is saying that, as far as he can discern, from the intent of the Founders, Black people were never intended to have any rights that white people were bound to respect. Meaning that democracy was never meant to include us. And so if you have that fundamental a question, we would be surprised if people had not deployed this kind of energy on the other side of it. (LAUGH)
Cobb: You know?
Lee: I feel like we haven't answered that question yet. I feel like it's still--
Lee: --the big question underpinning us.
Cobb: No, we haven't. And so I mean, I think there's thing that, you know, the status of Black people in this country is best described as a kind of contingent citizenship. That your citizenship and your access to the power and privileges of being a citizen are contingent upon where we are at that particular moment in the debate.
Cobb: As opposed to your citizenship being a state, a reality, it's more like the stock market. (LAUGH) I mean, you look at it and you see fluctuations, and it's up one week, down the next week, you know, plummeting. But it's never the kind of default presumption that we see in white America.
Lee: With that in mind, are we having the wrong kind of conversation and debate? Does the filibuster even matter? Given that kind of framing context that you just laid out there, does it even matter? If we're not gonna shift in any meaningful way in, (LAUGH) you know, forward, that long arc, if we're not bending the proper way, does any of it matter anyway?
Cobb: Yeah, I think it does matter. I think it matters even more. Because when we're looking at the way some people have construed their interests, and the way that they have understood their political prerogatives, it means that we really have to have the rules in place that shore up democracy.
Now, having people adhere to those rules is a whole other thing, you know? Of course, African Americans were given the right to vote by the 15th and 19th Amendments, then nothing for half a century. So that's a different thing. But I do think that it is important that the beginning phase of this is always creating the kinds of democratic regulations that, at least on paper, say, "This is how the society should function in the pursuit of equality."
Lee: So Jelani Cobb says this whole debate about the filibuster does actually matter. After the break, we'll talk about what it would take to change the rules, and what's at stake if they don't.
Lee: We're back with New Yorker staff writer Jelani Cobb, talking about the past and present of the Senate filibuster. Like we said, 46 Democrats in the Senate said they're open to reforming the filibuster. One option is to get rid of the 60 votes needed for cloture, to lower that number so it's a little easier to break a filibuster.
There are also some calls to return to the standing filibuster we talked about earlier, to make senators actually be there on the floor. It would take 50 senators plus Vice President Harris to get rid of it. Democrats just need a simple majority and it could be done at any time.
But the votes aren't there. Just last week, Senator Joe Manchin, a Democrat from West Virginia, wrote an op-ed in The Washington Post, saying he would never vote to abolish the filibuster. I asked Jelani why Senator Manchin won't budge on this.
Cobb: Well, I mean, I think it's where Joe Manchin sits and more specifically where he's from. He's a West Virginia Democrat, which is a very different thing from being a Democrat from other places. I don't know, actually. I don't know. I mean, I think there's, the Senate always has an institutional reluctance to change.
You know, that's generally, you know, it's known to be this deliberative body for a reason, and not inclined toward rapid change. The other part of it, I think, is that there are lots of outmoded aspects. The Senate itself, the logic of the Senate itself is outmoded.
If we look at where the populations are, the, you know, famous example of, you know, Wyoming having about as many people as the District of Columbia, and having two senators and at the same time California, which has I think it's 40 million people or something, some such, has the same number of senators.
And so it rewards geography over population in these ways. And so effectively multiplies the power of minority populations in those small states, or in those sparsely populated states. And so, I mean, that's part of it. But looking at why there are other particulars of people's reluctance, you know, goes into I think the psychology and the political calculations of those senators. And, you know, if you go down that rabbit hole, who knows where you come out.
Lee: So Jelani, if we do end up getting rid of the filibuster and the Republicans are restored to power, is there any legitimate concern that there might be a backlash?
Cobb: Sure. One of the reasons I think people are hesitant is the fact that the Senate map looks favorable for Republicans, and typically presidential party loses seats in the House and the Senate in the mid-term elections. And so those things are to the advantage of the Republicans.
But I think that if you're looking at the long game here, it really does suggest that over the course of maybe not just this year, or not just next year, but that decade and decade and decade-long history of Senate obstructionism to prevent civil rights bills ultimately outweighs, and the idea of that extending into the future, outweighs the kind of individual fluctuations that you'll see if, you know, Republicans take the Senate back in 2022, or if Democrats get it in '24 or '26 or however this plays out. I think that we're not talking about absolute wins and losses, but we're talking about the net benefit still warranting getting rid of the filibuster.
Lee: Do you think a bill like H.R. 1 has any chance to pass if the filibuster still exists in its current form?
Lee: No chance. (LAUGH)
Cobb: I don't think so.
Cobb: There's no incentive for Republicans to vote for anything that a Democrat sponsors. Because, and you know, this partly goes to the media ecosystem that were operating in, and the belief that, you know, the Democrats are, and liberals, are evil incarnate. And so the reward incentives for Republican elected officials is pure obstructionism.
And if we look at the kind of data around productivity as we have gotten into these kind of wildly and asymmetrically polarized moments in American politics, we've seen less and less productivity in the Senate, that people would rather grind the entire Senate to a halt than see anything that could be construed as progress from forces that they think are purely evil.
Lee: You know, I guess my last question on the filibuster is, you know, does the public, do voters, do the American people get better representation in the Senate without the filibuster? Like, getting rid of that, would that get us closer to the ideals of true democracy and connecting the power to the people?
Cobb: So I'm hesitant to make predictions, but I think absent the filibuster, there at least is an incentive for people to legislate, or for people to hold out their vote in exchange for something. Whether it's the Post Office in your hometown, whether it is that you want something to go along with you on a bill that you have about military expenditures, whatever it is, if you can't obstruct just on the basis of prerogative, it at least begins to incentivize people doing what the Senate was actually created for.
Lee: Jelani Cobb, thank you so much for your time, good brother, and your insight. I really appreciate it.
Cobb: Thank you.
Lee: Jelani Cobb is a staff writer for The New Yorker and a journalism professor at Columbia. We wanna hear from you. You can tweet me @trymainelee, that's @trymainelee, my full name, or write to us at IntoAmerica@nbcuni.com, IntoAmerica@nbc, and the letters, uni.com.
Tell us what you love about the show and maybe what you don't. We wanna hear it all, and your story ideas, and issues you would like us to cover. Into America is produced by Isabel Angell, Allison Bailey, Aaron Dalton, Max Jacobs, Aisha Turner, and Preeti Varathan. Original music by Hannis Brown. Our executive producer is Ellen Frankman. I'm Trymaine Lee. Catch us again next Thursday.