Although not inscribed in the US Constitution, the filibuster has become institutionalized as a longstanding Senate tradition. Derived from a Dutch word meaning “pirate,” filibuster refers to the practice of unlimited debate used by senators to block legislation they do not favor.
Heeding the warning that in democracy, 51 fools can combine and rule over 50 intelligent and discerning persons, America’s insightful legislators shrewdly devised debate rules which compel opposing views to come together or face the certainty of death of a controversial bill.
In the spirit of checks and balances, filibustering helps to neutralize the ability of a slim majority to entirely ignore and overrule the views and concerns of the minority. Sadly, partisan minds do not see the failure of their proposed legislation as a sacrifice rendered at the altar of democracy but rather as unacceptable unprincipled sabotage.
Incorporated in Senate procedural rules in 1806 and first used in 1837 by some senators to prevent others from expunging a resolution of censure against President Andrew Jackson, the filibuster has survived the ravages of time.
As the singular way to hold the Senate floor – physically by continuously speaking for hours on end in earlier years but now only symbolically (by notifying the intent to do so) – filibustering has been an effective way to prevent action on a bill. Senators consider it indispensable to their duty to debate, with some even venerating it as ‘The Soul of the Senate.’
To prevent indefinite shutdowns of Senate’s business, in 1917, a new Senate rule allowed a two-thirds majority to vote to end a filibuster. In 1975 this “cloture” procedure was changed, lowering the requirement from two-thirds to three-fifths (i.e., from 66 to 60 votes). Even so, as stalling of bills continues, so do calls for ending the filibuster.
But with all its warts, filibuster’s value seems to hold steady.
Understandably, angry calls to retain or abolish the practice have engaged both parties in a blood sport in which each party shifts its stance on ending or defending filibustering to further its partisan interest.
Blatantly hypocritical, Republicans and Democrats aggressively seek to exterminate the filibuster rule when in a slim majority and facing an impending collapse of their legislative proposals. Conversely, when in the minority, they never fail to applaud and uphold filibustering as the best safeguard against the unrestricted autocratic manner of legislating.
Most recently, faced with Republican determination to block the passage of their cherished bill on voting rights and electoral reform, enraged Democrats led by Biden, Pelosi, and Schumer have used angry rhetoric and fear-mongering over the collapse of democracy and the suppression of majority rule by an obstructionist minority’s abuse of the debating rule. They argue that voters’ choice must prevail over an archaic unprincipled procedure that negates democracy’s basic criterion that power must rest with numbers.
Determined to proceed unilaterally on their controversial, comprehensive, and costly agenda, which in some instances lacks the support even of two of their own Senators, Democrats have chosen election and voter protection as the hill to die on. Exploiting Martin Luther King Jr.’s holiday as a fertile date to advance their proposal for election reform, they chose to debate the bill on January 19.
After it failed to garner the required votes, Majority leader Schumer moved to end the filibuster rule contending that unless the 60-vote threshold is lowered to 51, their seminal piece of legislation – Freedom to Vote Act (FVA)- is doomed.
Facing declining popular support in poll after poll for Biden and his failed policies, Democrats have chosen to hang their hat on the peg of racism. Thus, anyone opposed to the Biden agenda, in this case – FVA, and ending the filibuster, is both a racist and an enemy of the state.
In their defense, Republicans argue that Democrats prioritize FVA’s passage through eliminating filibuster as the singular most efficient way for Democrats to retain their Congressional majority by making voting widespread and more accessible (not necessarily fairer).
Covid’s long-lasting restrictions on movement have had many negatives for people, but they have proved a bonanza for politicians. They could legislate by zoom, and when required to vote in person, delegate a colleague to act on their behalf, with instances of legislators vacationing while using the Covid related health risks to justify their absence!
Voters, likewise, benefited from more flexible voting modalities and eligibility criteria intended to facilitate voter access in a highly restrictive socially distanced Covid environment.
But the most significant impact of Covid was on the 2020 election, which enabled more loosely structured voting systems. Easier voter registration, greater vote by mail and early voting options, installing drop boxes in greater numbers and locations, permitting door to door canvassing and vote harvesting, delayed deadlines for receipt and counting of votes and release of outcomes, and a plethora of other changes made in the name of Covid, but for long favored or implemented in democrat led states and counties, presumably led to record-breaking pro-Biden turnout and Democrats take-over of both chambers of Congress along with the White House.
The proposed FVA seeks to perpetuate the above mechanisms. By ending the filibuster, Democrats get to bake their pie and eat it too. Ensuring higher voter turnout can only favor them as it enlarges the vote bank of voters indebted to Democrat giveaways.
By implicating Republicans of racism for wanting to roll back the advances that made voting easier in 2020, they get to reap the benefits, once again, of playing the race card. Biden, in fact, referred to Republican obstruction of the bill to Jim Crow-era racism, causing Minority Leader Mitch McConnell to slam Biden’s comments as “profoundly, profoundly un-presidential”- a “rant” that was “incorrect and beneath his office.”
Luckily for us, but most of all for American Democracy, Senate Democrats lost their bid on January 19 to get the crucial but controversial voter bill passed, as well as their bid to scrap the filibuster rule.
In the minds of impartial observers and voters, that date will be celebrated each year as the day when not just the filibuster but American democracy’s fundamental tenet of legislation by consensus dodged a bullet.
Neera Kuckreja Sohoni
Neera Kuckreja Sohoni is a published author and opinion writer. The views expressed here are solely those of the author.