Below is my column in the Hill on the future of the filibuster and why this may be the most credible period for the use of such a compromise-forcing rule. There have always been good-faith arguments against the use of such a rule as inhibiting democratic voting. After all, the rule blocks bare majority voting. However, with a razor-thin margin in both houses, the use of such a rule can help force greater dialogue and compromise in Congress, which most voters indicate that they want in polls. It now appears that Sen. Joe Manchin (D., W.V.) will block the federal voting rights legislation even without a filibuster. As a result he was attacked as a “not very bright” aider and abetter and “cowardly, power-hungry white guy” by the left. Sen. Dick Durbin’s press secretary on the Judiciary Committee even curiously declared that democracy should not be “in the hands of a man who lives in a house boat.” The furious response explains why Manchin has been one of just two Democrats willing to demand compromise. The Republicans have roughly the same number willing to push from that side. However, combined these senators are seeking bipartisan agendas in a deeply divided nation. Killing the filibuster will remove the key pressure to seek bipartisan approaches.
Here is the column:
“If you want a friend in Washington, buy a dog,” is a quote often attributed, perhaps erroneously, to President Truman. When it comes to Sen. Joe Manchin, President Biden may be thinking of offering his voracious dog, Major, to the West Virginia Democrat.
Biden has trolled Manchin and Sen. Kyrsten Sinema (D-Ariz.) in public speeches, denouncing both as those “two members of the Senate who vote more with my Republican friends.” In reality, Manchin and Sinema have voted 100 percent with Biden so far, more than such liberal icons as Sens. Elizabeth Warren (D-Mass.) or Bernie Sanders (I-Vt.). That’s why the Washington Post gave Biden three more “Pinocchios” to add to his growing collection.
However, both Manchin and Sinema support preserving the Senate’s filibuster rule, and they are portrayed in the press as fighting for what is being called a “Jim Crow relic.” One reporter asked Sinema how she would respond to what critics are calling a “choice between the filibuster and democracy,” while the Los Angeles Times ran a column titled, “What’s the matter with Kyrsten Sinema?”
In truth, the filibuster is no more racist than any other procedural rule. The irony is that, despite its abusive use in the past, this is arguably the most compelling time for a filibuster rule.
While Democrats and the media have painted anyone supporting the filibuster as anti-democratic, even racist, they overwhelmingly supported the rule when Democrats were in the Senate minority. As a senator, Biden denounced any termination of the filibuster as “disastrous” and declared: “God save us from that fate … [since it] would change this fundamental understanding and unbroken practice of what the Senate is all about.”
Senate Majority Leader Chuck Schumer (D-N.Y.) previously warned the Senate that it was “on the precipice” of a constitutional crisis as “the checks and balances which have been at the core of this republic are about to be evaporated” by a proposed elimination of the filibuster. Likewise, then-Sen. Barack Obama (D-Ill.) denounced those seeking to eradicate the filibuster as trying to change “the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet.” He added: “If the majority chooses to end the filibuster and if they choose to change the rules and put an end to democratic debate, then the fighting and the bitterness and the gridlock will only become worse.”
Back then, the filibuster was the embodiment of “democratic debate” — and those words were echoed in the same newspapers and on the same television programs that now denounce the rule. When Sinema recently made the same defense of the rule as Biden, Schumer and Obama, she was attacked as mouthing specious, racist or reactionary talking points.
It does not matter that Democrats have used this now racist and undemocratic rule hundreds of times, including filibustering bills 327 times just last year.
In reality, the rule did not originate as a racist device. Indeed, as I have previously written, it is more a “relic” of the Julius Caesar era than the Jim Crow era. In ancient Rome, the filibuster was used to force the Roman senate to hear dissenting voices; Cato the Younger used it to oppose Julius Caesar’s return to Rome and to denounce rampant corruption. It was viewed as protecting minority viewpoints in senate proceedings. In the United States, it can be traced to a procedural argument by former Vice President Aaron Burr to get rid of an automatic end to debate on bills in the early 1800s. It was not created in or for the Jim Crow era — and Cato the Younger was not the junior senator from Alabama.
The rule has been used for different purposes, including, most infamously, to oppose 1950s civil rights legislation. Over the years, it has been modified, as in 1975 when the threshold to end a filibuster was reduced to 60 votes. However, both parties agreed that the rule was needed to force greater consensus in the Senate, which fashions itself “The world’s greatest deliberative body.”
There are good-faith arguments that filibusters frustrate democratic voting. However, this is arguably a time when the value of the rule is most evident and most compelling as a compromise-forcing legislative device. The Senate is split 50-50, a reflection of the country’s division. (The House is little better off, with a majority of just a handful of votes, the smallest majority since World War II.) That leaves Democrats struggling to pass bills based on the tie-breaking vote of Vice President Harris.
Democrats were able to circumvent the filibuster rule to pass a $1.9 trillion relief bill, with no need to compromise, by using a budget reconciliation tactic. Heavily laden with pork projects and few spending limits, that bill embodied the dangers of enacting legislation on simple “muscle votes.” Now, though, they want to push through non-budget bills that cannot be shoehorned into a budget reconciliation framework.
For example, many senators want to add as many as four new Supreme Court justices to give liberals an instant, controlling majority on the court. There also is a demand to make D.C. the 51st state. Notably, both moves are highly unpopular with a majority of voters. And Democrats are pushing an unprecedented federalization of elections to prevent states from requiring forms of voter identification that are popular with voters.
Pushing through such controversial measures with bare majorities and on straight party lines will only deepen the divisions and increase the rage in this country. So this is precisely a time when the filibuster can play a positive role, by forcing legislation to pass with a modest level of bipartisan support. It requires consensus and compromise at a time of growing, violent division.
Democrats, media figures and activists are aware of the hypocrisy over the filibuster rule and its long defense by Democrats as a positive democratic device. That is why there is a concerted effort to portray support for the filibuster as racist. It is a familiar pattern in silencing an opposing view: Frame the rule as racist, and dismiss the consensus arguments accepted just a few years ago in defense of the rule. You then pass bills on straight party line votes in the name of national unity.
The filibuster has gone through historic controversies through the centuries, from opposing Caesar to opposing civil rights. But as a consensus-forcing rule, its time may have arrived, to the chagrin of many.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.