As the Senate majority prepared to abolish the filibuster in order to advance its political agenda, a long-tenured member of the chamber issued a stern warning.
"We should make no mistake. This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power-grab by the majority party," then-Sen. Joe Biden (D–Del.) said during a speech delivered on May 23, 2005, from the Senate floor.
Calling it "the single most significant" vote he would cast in more than three decades as a member of the Senate, Biden admonished Republicans for trying to blow up the filibuster to get judicial nominees confirmed with a simple majority. "Folks who want to see this change want to eliminate one of the procedural mechanisms designed for the express purpose of guaranteeing individual rights and they also, as a consequence, would undermine the protections of the minority point of view in the heat of majority excess," he said.
The times, they sure have changed.
During a Thursday press conference, now-President Joe Biden indicated publicly what he has reportedly been saying behind closed doors for a while: that the Senate's filibuster rules should be changed—perhaps even abolished, allowing legislation to pass with a simple majority, though he continues to hedge on that point.
"It's being abused in a gigantic way," Biden said of the filibuster, before suggesting that the Senate ought to return to the pre-1971 rules that required senators to actually stand on the floor and speak if they wanted to prevent a vote on a bill.
But, moments later, Biden suggested that he'd be willing to go further if the Senate's Republican minority blocks the passage of legislation—including a possible $3 trillion infrastructure bill, a gun control bill, and other progressive agenda items. "If there's complete lockdown and chaos as a consequence of the filibuster, then we'll have to go beyond what I'm talking about," he said.
Far from being a procedural mechanism meant to protect individual rights and guard against the tyranny of the majority, Biden says he now agrees with former President Barack Obama that the Senate's filibuster rules are "a relic of the Jim Crow era"—a line that has become the go-to explanation for progressives who would like to see the 60-vote requirement swept aside. (Obama, by the way, also defended the filibuster during the 2005 debate over the so-called nuclear option.)
But the history of the filibuster predates the Jim Crow era by several decades. In fact, the filibuster was accidentally invented by none other than America's first political villain: Aaron Burr. As vice president in 1805, Burr suggested that the Senate abolish a rule that allowed a simple majority to cut off debate on a bill. That same rule—technically a "motion to previous question"—still exists in the House today. Without that rule, however, the Senate could not pass any bill until every senator agreed to move forward.
That's an untenable arrangement for obvious reasons. The Senate used a variety of different mechanisms to stop debate and allow a vote over the years, but the current system of invoking "cloture"—the thing that requires 60 votes today, even though the number was originally higher—dates back to 1917.
The idea that the filibuster is a holdover from the Jim Crow era—an idea that is suddenly popping up all over left-wing politics and media—stems from the fact that filibusters were relatively rare until the past few decades. "It was used rarely and almost always for the purpose of blocking civil-rights bills," explains New York magazine's Jonathan Chait. "The filibuster exception to the general practice of majority rule was a product of an implicit understanding that the white North would grant the white South a veto on matters of white supremacy."
There is no question that the filibuster has been wielded for racist purposes. Sen. Strom Thurmond (D–S.C.) spoke on the Senate floor for more than 24 hours—still the longest filibuster on record—in a failed attempt to block a final vote on the Civil Rights Act of 1957, for example. The bill passed anyway.
But the filibuster is better understood as the product of the Senate's arcane procedural rules. As such, it is not inherently racist (and, by extension, abolishing it won't make the Senate as an institution anti-racist). If it was used by racists to advance racist goals, the racists are to blame. Presidents have used the annual State of the Union address to advance all manner of terrible policy, but we rightfully blame them (and the Congress that eventually votes to enact such policies) and not the speech itself.
The debate over the filibuster, like all of the tedious debates over procedural mechanisms in legislative chambers, is really about power. That power can manifest itself in the perpetuation of racist and discriminatory systems, of course, but not exclusively.
"Short-term, pragmatic considerations almost always shape contests over reform of Senate rules," Sarah Binder, a historian and senior fellow at the Brookings Institution, told the Senate Committee on Rules and Administration last year. She was referring to the history of the filibuster and its evolution over the decades, but the same lesson applies to what's happening right now.
Today, the filibuster is also something of a scapegoat. As James Wallner, a senior fellow at the R Street Institute, wrote for Reason in January, there are plenty of other ways for the minority to use the Senate's rules to hold up legislation. Abolishing the filibuster will merely change the dynamics of this debate, but it won't end it.
The better question to be asked is whether allowing the Senate to pass bills with a simple majority would improve government. Considering that Democrats are trying to shove it out of the way to speed through questionably constitutional gun control bills and even more spending, it's difficult for anyone who believes in limited government to cheer the filibuster's potential demise. But this is a debate that requires clarity, not misplaced accusations of racism.
For what it's worth, Biden and the Democratic minority won the debate over the filibuster in 2005. A bipartisan group of senators—the Gang of 14 led by then-Sens. John McCain (R–Ariz.) and Ben Nelson (D–Neb.)—reached a deal in which the Republican members agreed not to deploy the nuclear option while Democratic members agreed not to block confirmation votes for future judicial nominees.
It was an agreement that held up until 2013, when Democrats nuked the judicial filibuster to push through some of Obama's picks. When Republicans retook control of the Senate in 2014, they happily used the new rules to push through dozens of conservative appointees to the federal bench—something that Democrats and progressives now routinely complain about.
There's a lesson here for Democrats in 2021. Nuking the legislative filibuster—especially when you have a majority so slim that a single election could flip control of the Senate back to the GOP—seems like a decision Democrats will regret sooner rather than later.
It's a lesson Biden should know well.
"Whenever you're in the majority, it's frustrating to see the other side block a bill or a nominee you support. I've walked in your shoes. And I get it," Biden said in that same 2005 speech. "There's one thing I've learned in my years here. Once you change the rules and surrender the Senate's institutional power, you never get it back."