Filibuster

Is the Senate Filibuster a 'Jim Crow Relic'?

The filibuster is not inherently a tool of oppression simply because segregationist politicians in the 1950s and '60s found it useful.

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During his July eulogy for Rep. John Lewis (D–Ga.), a leading figure in the civil rights movement, former President Barack Obama expressed support for eliminating the Senate filibuster, which he called a "Jim Crow relic." That position contradicted the one Obama took as a senator in a chamber controlled by Republicans, and his historical framing was more than a little misleading.

In its current form, the filibuster prevents a vote on legislation without 60 votes to cut off debate. The maneuver, which was accidentally authorized by a rule change the Senate approved in 1806, was first used in 1837 during the controversy over the Second Bank of the United States. It has been deployed many times since for reasons having nothing to do with government-enforced white supremacy.

Segregationists did use the filibuster to oppose civil rights legislation in the 1950s and '60s. But just as the principle of federalism does not qualify as a "Jim Crow relic" simply because segregationists invoked it, the filibuster is not inherently a tool of oppression simply because they found it useful. Like other restraints on the majority's will—including those mandated by the Constitution, such as requiring bicameral approval of legislation and the president's assent in the absence of a congressional supermajority—the filibuster is an ideologically neutral obstacle that makes it harder to pass laws.

When they are in the majority, senators may complain that the filibuster is undemocratic. But the same could be said of many constitutional provisions that prevent a legislative majority from doing whatever it wants, including the restrictions imposed by the Bill of Rights, not to mention the basic principle that Congress may exercise only those powers it has been explicitly granted.

Senators have used the filibuster for causes as varied as resisting U.S. involvement in World War I, protesting a presidential policy of "targeted killing" by drone, and opposing the extension of federal tax cuts. Both Democrats and Republicans have used or threatened filibusters to block the nominations of judges whose records they found alarming.

That last option was largely foreclosed in 2013, when a Democrat-controlled Senate, frustrated by Republican opposition to Obama's judicial picks, approved a rule that allowed a simple majority to end debate on almost all presidential nominations. An exception for Supreme Court justices was eliminated four years later, after Republicans regained control of the Senate in 2014 and Donald Trump was elected president in 2016.

Majority Leader Harry Reid (D–Nev.), who had opposed new filibuster limits as a threat to venerable Senate norms when George W. Bush was president and Republicans ran the Senate, switched positions in 2013. So did Minority Leader Mitch McConnell (R–Ky.), who as the majority whip during the Bush administration threatened to make the rule change that Reid was then resisting.

McConnell warned Democrats they would regret their shortsighted move. And presumably they did once McConnell, converting again, greased the skids for Trump's Supreme Court nominees and the president began reshaping the federal judiciary. As the Cato Institute's Gene Healy noted in 2013, "Serious political movements shouldn't try to knock down all the barriers to power whenever they temporarily enjoy it, because nothing is permanent in politics save the drive for more federal power, and the weapons you forge may someday be detonated by the other side."

When politicians are in the mood to defend filibusters (i.e., when their party is not in charge of the Senate), they often say the tactic helps ensure that the minority's views receive adequate consideration as legislation is crafted. Former Vice President Joe Biden, who served in the Senate for 36 years, used to think so. But as he contemplated a victory over Trump that looked increasingly likely this summer, he decided it might be time to remove this impediment to presidential agendas. "It's going to depend on how obstreperous [Republicans] become," he said.

These filibuster flip-flops could be seen as evidence that the time-honored tradition is nothing more than a tricky maneuver that members of both major parties praise when it's convenient and condemn when it's not. But the relevant question is whether that tricky maneuver, on balance, gives us better or worse government. When you think about the gratuitous, pernicious, and blatantly unconstitutional legislation that Congress manages to pass even when the filibuster option is available, it is hard to imagine that eliminating this obstacle would improve the situation.

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  1. The left just can’t understand that we are not a democracy but a representative republic. Anything that slows down laws being made I’m for.

    1. I’m not sure that they don’t understand it, but they definitely hate it.

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      3. Democrats belong to the Party of slavery. They support enslaving Americans to lies.

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    2. It is legitimate to ask if our representative republic should be democratic in nature. What we are seeing is not a respect for the minority but in some cases control by the minority. We have seen a President with minority support, remember he lost the popular vote, and a Senate representing a minority of citizens install a third of the justices on SCOTUS.

      1. The answer to your question is a resounding “no.”

        1. Yeah but I’m retarded.

          1. These parody accounts are really tiresome. Please stop.

            1. How ‘bout nooooo?

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          2. We all are that’s why we comment

      2. It is legitimate to ask. And the answer is ‘no’. Because we aren’t a place where the majority can tyrannize the minority.

        1. Anything where the minority can pump the brakes on the majority is a good thing.

          1. Mindless comment. Putting the brakes on bad legislation is good. Putting the brakes on good legislation is bad. Context is everything.

            If the founders had intended for legislation to require more than 50% support, they would surely have done so, as they did with the requirement of 2/3 the Senate to convict in cases of impeachment.

            I don’t see why either party would put up with it, insofar as it is very easy to remove from the rules of the House/Senate if it becomes an actual inconvenience to the majority party. The Democrats were stupid to hold off so long on appointing their judges, as they learned to their cost during the present administration.

            1. What good legislation is left to do?

              1. If one is a statist, all legislation is good legislation, and the more the better.

                Personally I think all legislation should automatically sunset unless explicitly renewed, and congress should be in session half-time.

              2. This. There is very little the government can do for libertarians by legislating. There is much they could do by repealing legislation.

          2. What about when the minority gain massive control because the majority won’t stop them? A few examples, Moscow 1916, Germany 1930, China 1938, Portland now

      3. No he didn’t. There’s no such thing as “the popular vote”. There is a simple aggregation of total votes cast, but those votes were cast under a particular set of rules. Rules that all candidates know and understand. Rules that voters know and understand. Votes in California do not hold any sway over how Georgia allocates its Electoral College electors, nor vice versa. Knowing how blue California is, how many Republicans simply stay home on election day rather than engaging in an exercise of futility? How many Democrats in West Virginia stay home in similar fashion?

        Claiming to have won “the popular vote” is like a football team saying you scored more points than we did, but we had more yards of offense than you did.

        I’ve noticed that all the folks who want to do away with the EC to make things more democratic never once propose allocating their EC votes in a proportional fashion. If California allocated their EC votes in accordance to the voters wishes instead of in winner-take-all, Trump would have received 21 EC votes and Clinton 34. Change from a winner-take-all to a proportional allocation of EC electors would far more readily approximate the “popular vote” but not a single Democrat wants to do that.

      4. Keeping with a football analogy…

        The popular vote is meaningless. States are not even required to have a popular vote for President. They are free to appoint their electors however they chose to do so. It just so happens that right now most states use a winner-take-all vote. Article II, Section 1: “Each state shall appoint, in such manner as the Legislature thereof may direct…”. If California passed a law that allowed the Governor to simply appoint all of the states 55 electors however he (or she) likes–presumably on party lines–about 10M “popular votes” go poof.

        It is true that Sec. Clinton received more total votes than Trump. But not a majority (as many have claimed), at 65.8M to 62.9M with about 6M “other”.

        And again, so what? EC votes are all that count, in the rules of the game. Which she knew going in. She lost 5 states that Obama carried twice.

        If this were a football game, an analogous case might be: Clinton had 658 yards of total offense while Trump had 629 yards, but Clinton lost by 4 touchdowns after having 5 turnovers. She simply failed to do the things necessary put points on the board.

        The rookie Trump strategically and tactically outplayed the veteran–her, the master politician and most qualified person to ever run for the office,?!

        And he is perhaps the most vilified person (and not without cause) ever to run for the office and before the election Mr. Obama had campaigned more for Democrat Hillary Clinton than any modern sitting president had for his party’s nominee.

        And she still couldn’t muster the win?

        Do you *really* want to console yourself by crying about the fact that she had 29 more yards of total offense?

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      5. Or maybe a baseball team that outhits the opponent, but leaves men stranded and never scores?

        The rules require you to get EC electors on the board, not to pump up mythical “popular votes” with 3M people who all live in LA and NYC.

      6. After 250 years maybe we should think carefully about the need for MORE laws.

      7. “It is legitimate to ask if our representative republic should be democratic in nature”

        Rather than asking maybe you should read the constitution and the history behind it. Every fear the framers had about majoritarian tyranny has proved true, and then some. They were much, much, smarter than you.

    3. The difference between the two is 10 votes?

    4. The left just can’t understand that we are not a democracy but a representative republic. Anything that slows down laws being made I’m for.

      The left has already succeeded in confusing the right into thinking that we live in a “representative republic”, instead of what the US was actually founded as and what the Constitution says, namely a loose “confederation of representative republics”.

      Give it another few decades, and easily confused people like you will actually think that the US was founded as the mobocracy Democrats want it to be.

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  2. There is nothing in the Constitution about ‘filibuster’. This is a Senate rule, and nothing more than that. The Senate can (and has) voted on several occasions to amend the rule.

    We should understand clearly what it means to do away with the filibuster. For starters, it will convert the Senate into a majoritarian institution, like the House. I am not sure I want an ‘Upper House’; I want a deliberative body. That is what the Founders intended.

    The second thing it will do is solidify tribal politics for all time. Everything will come down to: Are there 50%+1 votes to pass a bill into law? This is not how the Senate was intended. The Senate, I thought, operated on consensus. Doing away with the filibuster will destroy any incentive to achieve consensus.

    The third thing it will do is exponentially increase corruption. I think we have seen just how politicized and corrupt the federal bureaucracy has become. A majoritarian Senate will absolutely launch endless investigations for questionable purposes, and cynically manipulate the bureaucracy to corrupt ends.

    So no, there is no constitutional mandate regarding filibusters. But I’ll tell you what…there are very good reasons to have it. On balance, we should keep it. And restore it to where it was before Harry Reid.

    1. The founders were all racist slave holders so who cares what they intended.

    2. ” On balance, we should keep it. ”

      Your opinion might be worth something if your side wins control of the Senate. Otherwise, it will be irrelevant.

      1. Kind of like your side’s opinion right now then?

        1. Do your damnedest in the few months you have left, clingers.

          Then brace yourselves for long-term diminution of the three pillars of Republican-conservative electoral strategy — GOP gerrymandering, voter suppression, and structural amplification of yahoo votes involving the filibuster, the size of the House (and Electoral College), and the admission of states.

          #13Justices
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          #NoFilibuster
          #OpenWiderClingers

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      2. I remember when Tim Kane was promising to eliminate the filibuster for SCOTUS picks, anticipating a Clinton victory. He and other Democrats cried bitter tears when McConnell’s Senate went ahead and did just that after Trump won.

        Would be a riot if Trump wins again and McConnell’s Senate says that adding 4 new Justices sounds like a terrific idea! Just to troll the left, not to actually intend to do it.

    3. Senators used to be picked by state legislatures or governors to represent states’ interests.

      With direct election, they’re just congressmen with more job security.

      That’s what really ruined the senate.

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  4. Of course the Senate filibuster isn’t just a relic of the Jim Crow era, it’s only a relic of the Jim Crow era when Republicans want to use it. It’s the backbone of American democracy when the Democrats want to use it.

    But I am certainly in favor of repealing the 17th Amendment allowing for the direct election of Senators, the Senate is not supposed to represent the interests of the people, it is supposed to represent the interests of the states qua states. The United States should be plural, not singular.

    1. Why is a Senator selected by the population of a state less representative of that state than on appointed by the state’s legislature? They should in theory be the same. I don’t think the problem is that the Senator is not representing their state, it is that party is overruling state interests. Would this be different if Senators were appointed, I not really sure.

      1. Why is a Senator selected by the population of a state less representative of that state than on appointed by the state’s legislature?

        The House already represents the population of a state. The Senate is supposed to represent the concerns of the executive branch of that state. Since we live under a system of representative government, the two are not necessarily the same, since the state executive may reach different conclusions from the direct representatives.

        1. This is too complicated for me because I’m retarded.

        2. Why the Executives of the States? States have appointed Senators by votes of their legislatures. Let each state set up the system they like to choose Senators. There was the problem, before the 17th, of an effective representative losing support because he was pledged to vote for a Senate candidate his constituents disliked. Quite a few members of state legislatures welcomed uncoupling the choice of Senators from their other duties.

      2. “Why is a Senator selected by the population of a state less representative of that state than on appointed by the state’s legislature?”

        Because out-of-state money heavily finances many of these races (see SC, where Harrison is killing Graham in fundraising and a lot of it is not from SC). If the state legislatures ran this, we’d be more assured the Senator represents his state and not some wealthy donors from out of state.

      3. They should in theory be the same.

        You ask a question that you recognize as being (obviously/potentially) untrue “in practice”.

        In theory, whether you’re actually stupid or just playing stupid is an important distinction. In practice, it doesn’t much matter.

    2. While the 17A was not such a good idea, the real problem were the incorporation doctrine and the 16A.

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  6. Democrats are liars. They will say and do anything to stay in power or obtain more of it. Don’t play their game and try to rationalize everything they say as legitimate. Just pound them hard.

    1. REpublicans are liars. They will say and do anything to stay in power or obtain more of it. Don’t play their game and try to rationalize everything they say as legitimate. Just pound them hard.

      1. Politicians are liars. They will say and do anything to stay in power or obtain more of it. Don’t play their game and try to rationalize everything they say as legitimate. Just pound them hard.

    2. Yup. As we see from the Lefty replies they lie and cannot even come up with good reasons to pick them over the GoP or Libertarians.

  7. REpublicans have blown up political norms, over and over.

    They blocked a huge number of Obamas nominees
    There is zero reason to think they would have kept the fillibuster

    Zero

    1. You mean in the absence of the Democrats having blocked Reagan nominees beforehand?

      Tit-for-tat has been going on since the beginning of time. Anyone who thinks it began with Republicans, or Democrats, or any politicians, is just plain ignorant.

      1. it goes back to Adams (2) and the “Midnight judges.”

    2. Did the republicans get rid of e filibuster already?

    3. Before Obama, the federal judiciary was split about evenly between R and D appointees. Obama shifted that to 2/3 D, 1/3 R even with the Senate putting on the brakes. Despite all his efforts, Trump didn’t even quite get back to the pre-Obama ratio.

    4. “There is zero reason to think they would have kept the fillibuster”

      …except they did, even after Dems (such as Obama) filibustered SCOTUS nominees.

    5. Um, who got rid of the filibuster for federal judge nominations again? Oh yeah, it was Harry Reid and Democrats. They didn’t think it would ever come back to bite them…probably because they were stupid.

    6. Poor Leefties have lost and are not competitive nationally any more. That is what Trump represents.

      Biden will lose and the Democrats will split into factions fully embracing their socialist handlers.

  8. While I like the idea of a filibuster in theory, I believe it has outlived its usefulness in practice. The filibuster should be a tool to stop legislation that a minority party seriously questions, not a tool to stop all legislation from the majority. It could be useful if we were a less divided country where Senate members were loyal to their states more than they are loyal to their party.

    1. It depends on how one views the value of legislation. My opinion is that the vast majority of federal legislation is value-destroying. Even a 60% majority is too low, given the increase lately in the “what’s in it for me?” attitude of citizens.

      1. I’m stupid enough to think that more legislation is good for the country.

      2. Anti-government cranks are among my favorite culture war casualties.

        Open wider, clingers.

    2. I would say the ability to stop legislation is more important now than it ever was at the beginning.

    3. What if the minority party seriously questions all legislation from the majority – as it should?

  9. As a general rule, if democrats start disliking something, it automatically becomes racist.

    1. Gerrymandering is a good example of something that used to serve the Democrats but now is ‘racist.’

      1. I laugh every time someone says gerrymandering helped Trump win.

  10. Most laws and appointments should require a 2/3 majority in both the House and the Senate. If you can’t convince at least some members of the opposite party that something is worth doing, it shouldn’t be done.

    It’s the simple majority rule that has turned politics into a zero-sum game of competing interests looking for government favors and handouts.

    1. “It’s the simple majority rule that has turned politics into a zero-sum game”

      Correct

  11. ‘Which he called a “Jim Crow relic,”‘ he isn’t known for his honesty, former POTUS Obama.

    1. Compared to the current piece of shit in charge Obama was a fucking saint. I have seen Trump lie fucking 5 times IN ONE FUCKING SENTENCE. Yet you Trump boot lickers eat it up like biscuits and gravy.

      1. You’re a leftist imbecile.

      2. “You can keep your doctor”, lefty shit.

      3. Sure, compared to Trump he’s a saint. Compared to, you know, ethical people, he’s not exactly know for his honesty.

    2. To be fair, Biden and the Democratic party are both “Jim Crow” relics themselves.

  12. The filibuster needs to go. It was fine when it was used sparingly. Now it’s a basic tactic and holds up the purpose of government as defined by the Constitution. Both parties have abused it relentlessly the past 20 years. It used to serve a purpose now it’s just a tool for abuse.

    1. “holds up the purpose of government as defined by the Constitution”

      Bribing voters with borrowed money?

    2. The fact that you only come to this realization when it is being used against you argues against your sincerity and/or self-awareness.

      For those of us who are not dogmatically loyal to one party or the other, the filibuster’s effect of blocking legislation is a feature, not a bug.

      That said, I would make one change to the filibuster rules. I’d go back to the requirement that a Senator actually stay at the podium to keep a filibuster going. Filibuster-by-proxy is just a shade too easy.

  13. The reason the left is attacking the filibuster is because they plan to stack the Supreme Court and add both Puerto Rico and the District of Columbia as new states–increasing their seat count in the Senate by 4 seats. We shouldn’t dignify their charges of racism with any more of an answer when the only appropriate answer is, “Fuck off, Slaver!”

    1. You will comply, Ken. You may not like it. You may whine about it as much as you want. But you you can’t stop it and you will comply.

      Enjoy the future and the progress, clinger.

      1. The Rev’s theme song:

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        Patriots will oppose you, Rev, whatever the odds might seem to be.

        1. You dumbasses get to whine and whimper, mutter and stutter, rail and flail as much as you want.

          But you will comply, clinger.

          1. You’re nonplussed that I just called you a National Socialist. They demanded lots of compliance from the clingers.

      2. Are you trying to persuade people to vote Republican this election, too?

        Thanks for the help, Reverend!

        1. He’s a troll.

          A very effective one.

          The commenters are suckers.

          1. It’s a pleasure to talk back to Lord Haw-Haw and his defeatist propaganda.

        2. Yup. The rev is more trump/2020 than lc1789.

    2. Puerto Rico legitimately should be a state. DC no, not at all, ever. It’s separate for a reason.

      1. Let’s see whether you can assemble enough votes in Congress to prevail on D.C. statehood.

    3. They’ll never get PR as a state as the PR’s simply don’t want it. Most of them are aware that they’ve slid into that in between zone where they have all the advantages of being part of the US without a lot of the restrictions that states have.

      Other possessions might jump at the chance for statehood given their lesser status, but not PR.

    4. The DC area is all that keeps MD and VA from being red states. If DC area separate from Maryland and Virginia, those states would be red and have 4 R senators. So DC +2 D senators, it’s a net loss for the D.

      1. You misapprehend what is about to occur. Maryland and Virginia will be unchanged. Most of the current District of Columbia (residential and commercial portions) will become a new state. The ‘seat of government’ section will remain the District of Columbia.

        Republicans’ task — to avoid two new and durable Democratic senatorial positions — would be to persuade citizens of the new state to vote for Republicans.

        Good luck, clingers!

      2. I’m not so sure. Much of the DC area would still be in those states.

  14. I really don’t care if the filibuster is removed, but I don’t want to hear any whining when the GOP retakes the Senate.

    1. The Dems plan to avoid that danger with Senate-packing, new voters (immigrants, felons, etc.), and other devices to Californicate the country.

      1. Yeah, if it were only the Senate at stake, that would be one thing.

        If they have the White House, the House of Representatives, the Senate, and there’s no filibuster, then what’s to stop them from packing the Supreme Court and stomping their boot on our faces?

        They have no respect for the Bill of Rights, in fact they take pride in violating them, and they’ve made their hatred of average Americans readily apparent.

        In short, getting rid of the filibuster isn’t happening in a vacuum. This isn’t like all the other times.

        1. > what’s to stop them from packing the Supreme Court and stomping their boot on our faces?

          Live in a state that tells them to fuck off?

          1. Like we did with Real ID?

            You can keep telling them to fuck off but their strategy is little compromises and to keep voting until they get the right result.

          2. “Live in a state that tells them to fuck off?”

            Are you talking about secession?

            Do you imagine that challenges to the Green New Deal will be upheld in a packed Supreme Court–by a state that tells the Supreme Court and the federal government to fuck off?

            Are you talking about secession?

    2. The Dems are adding two states and 4 permanent Democratic senators…so the GOP won’t retake the Senate.

  15. Interesting, not a single word about how the Democrats in the 1970’s changed the filibuster from a complete halt on business until the important issue could be resolved or the people who disliked it keeled over from exhaustion to the current “I don’t like this legislation, if you want it passed get 60 votes while we vote on all this other stuff” deal it is today. Or how that change massively increased the size and pork stuffed inside major appropriations bills. I thought this was a libertarian website.

    1. I was never foolish enough to think you had two brain cells.

  16. Hilarious they want to get rid of the filibuster entirely when removing it from judicial nominations has them in the current predicament.

  17. “When they are in the majority, senators may complain that the filibuster is undemocratic. But the same could be said of many constitutional provisions …” No. Filibuster/cloture is not a constitutional provision; filibuster/cloture is plainly unconstitutional since it makes some senators’ votes count for more or less than one vote, and it deprives the vice president of his tiebreaking vote.

    “… the filibuster is an ideologically neutral obstacle that makes it harder to pass laws …” If new policies (and repeals) can pass quickly, then good policies work and cement new political support, and bad policies harm and provoke pushback. Preventing this natural selection favors the growth of Progressive coercion.

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  19. The principle of federalism came in damned handy when abolitionists wanted to nullify the Fugitive Slave Act. That’s one of the things that the Confederacy complained about the most when they seceded.

    -jcr

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  21. I remember back when getting rid of the filibuster was called the “nuclear option.”

    Those were the days.

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  23. ideologically neutral obstacle that makes it harder to pass laws Well that’s not very progressive…..

    /sarc

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  25. The US Constitution allows both houses of Congress to make their own rules. They made the filibuster, then they unmade it. Seems pretty simple.

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