The filibuster has never been the great tool for promoting the bipartisan collaboration that its supporters in Congress profess to do. Even Alexander Hamilton saw this in The Federalist Papers.
Although the ability of small minorities to thwart decision-making has been hailed as a tool to protect minority interests, Hamilton wrote of its use in Congress under the articles of the Confederation: “[I]The real job is to embarrass the administration, destroy the energy of government, and replace the pleasure, whimsy, or skill of an insignificant, turbulent, or corrupt junto with the regular deliberations and decisions of a respectable majority. “
He added, “Public business needs to move forward one way or another.”
The same is true today – especially given critical voting rights legislation that would, among other things, stop efforts to suppress voters at the state level, expand access to elections, and end the gerrymandering of partisans. And Republican senators have made it clear that they will use the filibuster – which requires 60 votes to end the debate on a bill to get him to vote – to kill him.
What should die is the filibuster itself, a holdover from efforts by southern senators to block major civil rights laws and who nearly defeated the 1964 Civil Rights Act. But that might not be possible in today’s Senate as some Democrats are still opposed to getting rid of it. At the very least, given their history of hindering progress for members of marginalized communities, Senate Democrats should work out an exception that will discourage members of the minority party from using the filibuster as a tool to end civil rights legislation, just as there are exceptions to presidential nominations and certain budgetary matters. Even Democratic senators like Joe Manchin from West Virginia and Kyrsten Sinema from Arizona, who want to protect the filibuster as a matter of principle, might have a harder time rejecting an exception to civil rights laws without consequences for their voters if they stand for re-election.
On Tuesday, Senate minority leader Mitch McConnell went down to display the same type of disability that Hamilton convicted 233 years ago. If the Democrats attempt to end the filibuster, McConnell warned, it would result in a “totally burned Senate,” in which Republicans would use every procedural tool at their disposal to bring legislation to an endless standstill.
Meanwhile, important civil rights laws are awaiting the Senate’s attention. This includes not only voting rights legislation, but also bills to protect LGBTQ people from discrimination in workplaces and public shelters, and to implement critical reforms to tackle racial profiles and strengthen accountability in policing. They could all be thwarted if enough members of the minority prevent them from going to the vote.
Most Democrats seem to realize that the filibuster was only effective as a gavel to defy the will of the majority of the upper chamber as well as the majority of the American public. Even President Biden this week tempered his previous opposition to the filibuster rule change.
“I don’t think you have to eliminate the filibuster, you have to. . . What it used to be when I was in the Senate for the first time, “Biden said in an interview with ABC News on Tuesday. “You had to get up and speak up, you have to keep talking.”
Biden’s change of position is welcome, but his solution is flawed. Republicans have shown no concern about using lengthy political stunts on behalf of the partisan opposition, from Texas Senator Ted Cruz reading “Green Balls and Ham” to stop a vote on Obamacare, to the Senator’s 13-hour effort of Kentucky, Rand Paul delaying confirmation from CIA Director John Brennan. McConnell’s own attempt to block Obama’s final Supreme Court nominee, now Attorney General Merrick Garland, shows that if there is some way to stop him, GOP Senators will find him.
Rashawn Ray, a fellow governance studies fellow at the Brookings Institution and professor at the University of Maryland, College Park, said the creation of a filibuster exception to civil rights laws was given the Senate’s history where the filibuster was used to handle it to block, especially appropriate.
The narrative that the filibuster is a tool for protecting minority views and promoting bipartisanism, embraced by Republicans and even Democrats like Manchin and Sinema, belies its true appeal as a disability tool.
“If we look at the past few decades, (Republicans) have been mostly in the minority in the referendum,” said Ray. “In the Senate, with their control over lower-populated states that are conservative and white and rural-majority, the filibuster is a way for them to connect with their constituents and say, ‘Look, you have us put in office, maybe not. It’s a lot we can do, but neither are we going to let them do things. ‘”
Too much is at stake for political games. The filibuster must no longer stand in the way of progress.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter @GlobeOpinion.
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