The idea that the filibuster and other protections of minorities were created for racist purposes is bizarre and ahistorical.
In a nation where all of us may find ourselves in a minority from time to time and place to place, that is a protection we may all come to rely on.
P rogressives and Democrats have decided that something that gets in the way of their agenda is — stop me if you’ve heard this one before — racist. This time, it’s the filibuster, the rule by which the votes of 60 senators (thus representing a minimum of 30 states) are required to end debate on new laws in the Senate and bring them to a vote. The spin machine is in overdrive:
- Elizabeth Warren: “The filibuster has deep roots in racism, and it should not be permitted to serve that function, or to create a veto for the minority. In a democracy, it’s majority rules.”
- Zachary Wolf’s “analysis” at CNN is unsubtly titled: “What’s a filibuster? Democrats may finally ax a relic of our racist past.”
- USA Today ran an op-ed by Rashad Robinson entitled: “The Senate filibuster has a racist past and present. End it so America can move forward.”
- David Litt wrote an article last year in The Atlantic entitled: “The Senate Filibuster Is Another Monument to White Supremacy.”
Democrats such as Warren have happily deployed the filibuster to block new laws themselves hundreds of times in recent years. Perhaps nobody alive today has participated in more filibusters than has Joe Biden, who was a vocal defender of the practice for decades. Warren, for example, participated in filibustering a COVID-relief package in the fall of 2020, and was not heard at the time to be complaining that she was acting in a racist fashion. Why did congressional Republicans eliminate the monetary penalty for violating Obamacare’s individual mandate, but not repeal the mandate itself? Because it required 60 votes in the Senate to overcome a Democratic filibuster and change the law. Indeed, while Republicans may never have had the votes to entirely repeal Barack Obama’s signature health-care bill, many of its provisions survive today because of the 60-vote threshold in the Senate.
Even leaving aside the recent use of the filibuster, the Democrats’ history is tendentious. Of course, the Senate filibuster has been used to protect segregation and slavery. Lots of the tools of American democracy were used at one point or another to protect segregation and slavery: popular elections, the presidency, the House of Representatives, the courts, free speech, the Constitution, the administrative state, and — perhaps more than any other American institution — the Democratic Party. One could recount many examples of progressivism, economic populism, and the New Deal being deployed to reinforce racist practices. In progressive history, however, these are treated as simply an endless series of aberrations and coincidences.
For that matter, the Democrats only just passed their own $1.9 trillion spending package with 50 votes in the Senate by using the reconciliation process as modified by the “Byrd rule” — a budgetary exception to the filibuster, for passing spending without the inclusion of new laws, named after a former Klansman who led their Senate caucus for twelve years between 1977 and 1988 after filibustering the Civil Rights Act of 1964. It also seems odd that Democrats are now siding with Donald Trump (who wanted the filibuster abolished in 2017), and that progressive scholars are invoking Richard Nixon’s opinions about how easy it is to change Senate rules. Such lineage would be damning to a position favored by Republicans.
At the same time, the idea that the filibuster and other protections of minorities were created for racist purposes is both bizarre and ahistorical, as even the proponents of this argument largely concede. Wolf, for example, contradicts the headline of his own “analysis”:
Why are the filibuster and cloture built into Senate rules?
Unlimited debate by filibuster appears to be something of an accident, according to some experts. Brookings fellow Molly Reynolds wrote that a provision allowing for a simple majority to force votes such as the one utilized in the House of Representatives was removed on the advice of then-Vice President Aaron Burr to simplify the rules, not to create a supermajority test for all legislation. Filibusters came into common use around the Civil War, causing headaches and slowing things down. Cloture was adopted around World War I as a check on filibusters, when a few senators held up efforts by President Woodrow Wilson during the war in Europe.
Consider this, too, from Wolf:
What’s the filibuster been used for?
The most famous filibuster is the most distasteful: Southern Democrats held up civil rights legislation until 1964, when support was literally overwhelming. Both sides have engaged in filibusters. Why was President George W. Bush unable to enact an immigration overhaul? Filibuster. Why was President Barack Obama unable to enact climate change legislation? Filibuster. Why can’t Democrats today pass a voting rights bill? Filibuster.
Litt has to admit the same thing:
In fairness, the filibuster was not explicitly designed as a tool for white supremacists. In fact, the filibuster was not “designed” at all. It was created by accident, part of a sloppy revision of the Senate rule book by Aaron Burr. . . . In a careless effort to remove what he thought was redundant language, he cut the “previous question motion,” which would have allowed a majority of lawmakers to end debate and force a vote on a bill.
In 1917, Woodrow Wilson (himself an ardent segregationist) demanded reform. “The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action,” he complained. “A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.”
One would expect Wilson — who segregated the federal government, interned German Americans, and authorized the Palmer Raids — to be contemptuous of limitations on his power. As historian Nancy Beck Young wrote in yet another anti-filibuster op-ed in the Washington Post, key early uses of the filibuster were by anti-war voices in the Senate:
Not until 1846 did a senator use the filibuster to successfully kill a bill, in this case an appropriations bill funding the Mexican War. . . . After a filibuster against a measure to arm merchant ships during World War I not only prevented its passage, but also sunk essential appropriations bills, the majority rebelled. Senators enacted the cloture rule, enabling a vote of two-thirds of the Senate to break a filibuster.
Why did the Founders give us a Senate that guarantees each state equal suffrage? Partly because we had a more extreme version of that in the Articles of Confederation, which had a unicameral Congress in which each state had one vote and many significant items required unanimity to actually carry them into practice. But also because smaller states feared the overwhelming power of the larger states. These were not divided neatly on regional lines: The smaller states included free states such as Rhode Island, Connecticut, and New Hampshire as well as major slave states such as Georgia and South Carolina, and states with smaller slave-owning populations such as Delaware and New Jersey. The most populous state was slaveholding Virginia, which proposed a plan in which both Houses of Congress would be apportioned by population. Another of the big northern states (New York) still had slavery in 1787. The Senate, the Electoral College, and the “three-fifths” rule — which prevented slave states from having their slaves counted fully in their representation in the House — all served to protect the minority from the dominating power of the slave states.
The filibuster was unnecessary for the defenders of slavery for most of the years before the Civil War because they already had a functioning majority in the Senate: Slave states made up a majority of the Senate from 1788 to 1804, and at least half of the Senate from 1819 to 1850. The anti-slavery Republicans did not gain their first Senate majority until February 1861, when seceding southern states took their senators with them:
History aside, at bottom, what the enemies of the filibuster are arguing is that the American political system should contain fewer protections for minorities against popular majorities. If you were designing a political system from scratch knowing that it would contain unpopular minority groups that require protection from oppression, wouldn’t you want more protections against pure majority power?
One of the brilliant things about the American system is its overlapping majorities. The president, the Senate, and the House are all elected by different electorates, and at different intervals. The same is true of the state and local governments. One consequence of this is that many Americans are simultaneously part of a political majority at some levels of their government, and a political minority at others. That constrains how swiftly and sweepingly a majority at any level can enact measures that oppress any minority. Moreover, the really fundamental rules are set down in a written Constitution that requires a supermajority to change. Under current Senate rules, a majority of the Senate can tax and spend, and confirm presidential appointees. What it cannot do, however, is pass new laws.
Of course, in our system, a really broad and determined majority can always prevail if it is sustained over time. That is one reason why John C. Calhoun was wrong in thinking that “concurrent majorities” in the states could nullify the work of even a supermajority at the federal level. But there is nothing wrong with wanting the rights of a minority to be something greater than zero. In a nation where all of us may find ourselves in a minority from time to time and place to place, that is a protection we may all come to rely on.
This article has been edited since publication to better describe the Byrd rule.