When former President Barack Obama eulogized Rep. John Lewis, he made an impassioned plea for a litany of voting rights measures, such as enacting automatic voter registration, ending partisan gerrymandering, and establishing statehood for Washington, D.C., and Puerto Rico. And he added, “If all this takes eliminating the filibuster — another Jim Crow relic — in order to secure the God-given rights of every American, then that’s what we should do.”
These proposals are meant to strengthen our democracy, but to achieve them by eliminating the legislative filibuster would destroy it.
Obama’s logic is reasonable and supported by many frustrated Democrats: The right to vote is fundamental tenet of our democracy, and it is untenable to allow one party to deny anyone that right. Fully enfranchising all Americans is more important than maximizing the power of the Senate minority through a musty procedural tool.
Yet for Democrats to change voting laws on a narrow party-line vote, after eliminating the legislative filibuster by exploiting a loophole in the Senate rules on a narrow party line, would invalidate their moral authority. What could be argued is a noble commitment to democracy would get portrayed as an underhanded partisan power grab. Republicans would charge Democrats, fairly or unfairly, as disingenuously changing the voting laws to help themselves at the ballot box.
And when Republicans return to power, as they eventually would, they would have every incentive to changes whatever rules they could to maximize their power. You think partisan gerrymandering is bad? Just wait until Republicans start carving up states to even the score after the partisan admission of Washington, D.C., and Puerto Rico to the union.
Such an arms race in the weaponization of rules is literally how democracies bring about their own demise, as explained by Harvard professors Steven Levitsky and Daniel Ziblatt, who co-authored the book “How Democracies Die.” "The erosion of mutual toleration may motivate politicians to deploy their institutional powers as broadly as they can get away with," they wrote. "Acts of constitutional hardball may then in turn further undermine mutual toleration, reinforcing beliefs that our rivals pose a dangerous threat. The result is politics without guardrails."
Obama portrays the filibuster as inherently illegitimate by deeming it a “Jim Crow relic.” But the filibuster was not created in the Jim Crow era, nor was it ever the sole province of white supremacists.
Before there was any codification of the filibuster, in 1790 Southern senators tried to prevent Congress from moving to Philadelphia through extended debate. As one senator in favor of the move recounted, their strategy was to “talk away the time, so that we could not get the bill passed.”
A Brookings Institution account places the first filibuster in 1837, when Whigs’ extended debate to try to stop the expunging of Andrew Jackson’s censure from the congressional record. A Stanford Law Review paper says the first was in 1841, when Democrats tried to prevent the Whigs from firing the publishers of the congressional record. And a six-decade-old analysis of the filibuster in Political Science Quarterly found that the Senate’s 1856 rejection of a proposed rule to “confine” floor remarks to “the question under debate” is what began “a century of virtually unlimited debate.”
Even when racist senators eagerly wielded the filibuster during the Jim Crow era, so did other factions. An 1893 filibuster united silver-standard supporters from both major parties in an unsuccessful attempt to stop repeal of a silver purchasing law. In 1908, progressive populist Sen. Robert La Follette, in an attempt to derail a currency bill he believed favored the wealthy, filibustered for 18 hours, during which someone tried to kill him with poisoned eggnog. (He became ill but kept going for another six hours.)
All of these historical examples show that the filibuster was not created by racists for racist purposes. It has been used for racist purposes, but also for legitimate ones.
Still, the filibuster is not in the Constitution. It wasn’t codified in the original Senate rules. If the filibuster was not created by the Founders, and is not inherent to our system of government, doesn’t that argue we should have no qualms about ditching it?
What the Founders did create is a republican system of government designed to avoid, in the words of John Adams, a “tyranny of the majority.” To turn the Senate into a strictly majoritarian body would undermine that intent.
Of course, one could still argue the filibuster needlessly thwarts the popular will. What is the benefit gained from allowing the political minority to prevent the political majority from passing legislation? Specifically, if Democrats overwhelmingly win this year’s election, why shouldn’t they have the power to tackle urgent problems as they see fit?
Sure, without the legislative filibuster, Democrats would find it easier to pass laws. But as soon as Republican regain congressional majorities, without the legislative filibuster they would find it easier to repeal those laws.
Consider the short life of the carbon tax in Australia. That nation's parliamentary government has no filibuster. So when the Labor Party enacted a carbon tax in 2012, the opposition Liberal Party fiercely opposed it. Thanks to popular backlash against the tax, the Liberals won the federal elections in 2013 and repealed it in 2014.
Getting rid of the filibuster won’t help Democrats solve problems if their solutions don’t stay on the books. And our entire government will lack stability if no one can be sure if laws and programs will carry over from one Congress to the next.
Abuse of the filibuster, paralyzing our government, should not be tolerated. But in that circumstance, the challenge for Democrats is to pursue policies that galvanize the public, so the filibusterers pay a political price and lack incentive for further gridlock. Sometimes, when you fight fire with fire, you burn the whole house down.