Vice President Aaron Burr, on July 11, 1804, aimed his dueling pistol at Alexander Hamilton, one of the great thinkers among our Founding Fathers, and shot Hamilton in the stomach. Hamilton suffered for a day before dying.
Two years later, Aaron Burr would again wound our democracy, and it remains uncertain if the wound will prove fatal.
The Founding Fathers created the U.S. Senate to be a majority-rule institution. Burr, in 1806, was cleaning up some Senate rules, and apparently by accident eliminated the rule that debate could be ended by a majority vote. For bills to receive an up or down vote, debate has to close. This created a loophole where a bill could be defeated if Senators could just talk long enough for supporters of the bill to give up. Decades later this would be called a filibuster.
It appears neither Burr nor his fellow Senators fully realized the consequences of what they’d done. Thirty years passed before this loophole would be used to defeat legislation. In 1841, Sen. John Calhoun, one of the staunchest supporters of slavery, spoke on and on, successfully defeating legislation that would restrict slavery.
Today many people have a sanitized view of the filibuster from the 1939 film starring Jimmy Stewart, “Mr. Smith goes to Washington.” In the film, Stewart plays the role of a Senator who in moral indignation talks for as long as he can to defeat a corrupt bill.
The filibuster’s historical reality is far more sinister. After the Civil War, Southern segregationists used the filibuster to defeat civil rights and anti-lynching bills.
In 1890, a civil rights law was filibustered to death. In 1957, segregationist Strom Thurmond would set the filibustering record, talking for 24 hours and 18 minutes to kill a civil rights bill. Thurmond called civil rights a “cruel and unusual punishment.”
The filibuster stopped progress on protecting African-Americans’ right to vote until 1964.
The filibuster is not what used to be. Originally the filibuster was a talking protest that could extend debate to the point the majority would give up on passing a bill. The Senate, after all, has much other work to do.
But in 1917, the Senate changed the filibuster rule to a rule requiring two-thirds of Senators to vote to shut down debate because Senators did not want to enter World War I unless a supermajority agreed.
In 1970, the rule was changed again to three-fifths of the Senators. With 100 Senators, this meant 60 votes were required to end debate. These changes made the talking filibuster/protest obsolete and changed the filibuster to a rule requiring 60 votes to pass a law.
Now talking filibusters are rare, and only done for dramatic effect. Today, to filibuster, all a Senator has to do is email the Senate Majority Leader he wants 60 votes for a bill to pass. With there being 100 Senators, if 59 Senators support a bill and 41 oppose it, the bill can’t pass.
There are many ideas supported by large majorities of Americans that never come up for a vote because of the filibuster. Low population states are over-represented in the Senate because every state gets two senators regardless of population. Twenty-one of our states, being rural, have just 11% of the USA’s population, but they have 42 of our 100 Senators, and it only takes 41 senators to prevent a bill from becoming law. A California senator represents 68 voters for every 1 voter represented by a Wyoming senator. For this reason, 50 Republican senators represent 41 million fewer voters than the 50 Democratic senators. Today’s filibuster gives 11% of Americans a veto over legislation. Minority rule is undemocratic and creates gridlock.
However, the filibuster does not apply to all legislation. The COVID-19 relief bill (American Rescue Plan) has bipartisan support by about three-fourths of Americans. Fortunately, the filibuster doesn’t apply to budget bills, and so the bill passed with 51 votes. If a filibuster were allowed, it never would have become law as not one Republican voted for it.
Our filibuster rules don’t make sense. A tax cut for billionaires can become law with 51 votes, but 60 votes are required to pass a minimum wage increase or a voting rights bill.
If there is one place where a super-majority should be required, it would be for lifetime appointments to the Supreme Court. If a party passes unpopular laws, there’s a remedy in midterm elections every two years, but Supreme Court judges serve life terms. Nevertheless, the GOP did away with the 60-vote requirement for the Supreme Court judges when Trump was elected. They weren’t concerned about minority input for democracy’s lifetime appointed referees.
Defenders of the 60-vote filibuster claim it increases debate, forces bipartisanship, and prevents tyranny of the majority. In reality, it kills debate, bipartisanship, and creates a tyranny of the minority. It’s supposed to make the majority consider the minority, but ironically, the filibuster has largely been used by a racist minority to deprive racial minorities of their civil rights.
Recently I attended an Indivisible townhall with Sen. Patty Murray. The Washington Senator stated the longest lasting bills are those that have bipartisan support. True, but Obama said “the filibuster has made it effectively impossible for us to govern when at least one party is not willing to compromise on issues.”
The Caucus Room Conspiracy is the conspiracy you might not have heard about. The night Obama was inaugurated in 2009, all the big names of the GOP met in the “Caucus Room” of a D.C. restaurant to plan their strategy to prevent Obama’s re-election. They decided to slow, weaken and filibuster everything Democrats proposed. It wasn’t a criminal conspiracy, but reveals their attitude toward bipartisanship.
The GOP’s goal was not to improve the lives of the American people, but to prevent Dems from helping Americans so Dems would be defeated in the midterms. The data on the filibuster tells the story. Between 1965 and 1967 there were 7 filibusters, but between 2009 and 2011, there were 137. The Caucus Room conspiracy resulted in a 20-fold increase in filibusters. Today’s GOP isn’t interested in compromise.
The GOP strategy worked. Obama tried to get bipartisan support for his healthcare and his economic recovery plan. But the GOP negotiated in bad faith. They weakened and stalled both bills, and then voted for neither. In 2010, Dems faced the voters with a weakened, unimplemented healthcare plan, and an economy still in trouble. With no improvement in American lives, the Dems received a “shellacking” and the GOP regained control of Congress. The 60-vote filibuster is the perfect tool for an obstructionist party bent on preventing the majority party from making progress.
There are several ways the filibuster fiasco could be fixed. It could be simply ended and the Senate would become majority-rule as the Founding Fathers intended. Or you could limit it. One suggestion is to not allow civil rights and voting rights laws to be filibustered. Another suggestion is to return to the original talking filibuster and require filibustering senators to be present during all the speeches.
Americans hate gridlock. They want progress on popular bills. But the GOP will fight for the filibuster because it works to their benefit. Their main concern is putting judges on the Supreme Court and tax cuts for the rich, and the 60-vote filibuster doesn’t apply to those any longer. The truth is the GOP isn’t interested in passing much legislation. They don’t even have a platform. Mostly they want to keep Dems from passing bills. The filibuster gives the GOP a veto over progressive legislation.
Democracy is under attack. Republican controlled states have over 250 laws proposed to suppress the Democratic vote. In Georgia, some laws passed this week go beyond suppressing the vote. They give Republican partisans the power to throw out Democratic votes. We need to pass HR-1/S-1, the “For the People Act,” and the “John Lewis Voting Rights Act” to save our democracy. The 60-vote filibuster will kill these bills. Burr’s Senate rule change may yet prove fatal to our democracy.
If you look at all the democracies in the world, not a single one has a filibuster, and we shouldn’t either.
Roger Ledbetter is a politically-active resident of the Valley. He and his family have lived in Snoqualmie since 1979. Contact him through the editor by email: email@example.com.