Opinion: McConnell's Defense Of The Filibuster Is A Farce

Democrats, who hold 50 seats in the Senate along with Vice President Kamala Harris’ tie-breaking vote, are eager to push through big-ticket items on President Joe Biden’s agenda, from legislation that tackles climate change to Covid-19 relief. Wary that Republicans will use the filibuster to block everything they bring to the floor, a growing number of Democrats now support doing away with this “Jim Crow relic,” as former President Obama once called it.

McConnell, who is eager to hold on to power, is now defending the filibuster, arguing that the Senate should maintain the rule in the name of deliberation and building consensus. On Tuesday, he tweeted, “I made clear that if Democrats ever attack the key Senate rules, it would drain the consent and comity out of the institution. A scorched-earth Senate would hardly be able to function.” For the senator who has mastered the art of scorched-earth politics, the statement was the height of hypocrisy.

For now, McConnell is counting on the fact that moderate Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona have said they do not support jettisoning this rule.

Regardless of how the battle over the filibuster plays out, it is important to see why McConnell’s arguments don’t hold water. The notion that the filibuster is a source of comity couldn’t be further from the truth. The rule, which is not written into the Constitution, but something that the upper chamber gradually adopted in the 19th century, has been used as a bludgeon against vital measures throughout much of American history. In 1917, the Senate adopted the cloture rule which allowed two-thirds of the Senate to cut off debate (Senate reformers in 1975 lowered the number to three-fifths of all senators, or 60 votes).

The filibuster, which was originally used only sparingly in high-profile battles, became a prominent strategy for southern Democrats — during this time Democrats deeply divided between northern liberals and southern conservatives — to block civil rights bills in the 1950s and 1960s. Liberal senators at that time considered the rule anti-democratic, and the Leadership Conference on Civil Rights listed ending the filibuster as one of its key goals in 1951, alongside criminalizing lynching and ending segregation. South Carolina Sen. Strom Thurmond, a segregationist, famously set the record for the longest individual speech when he filibustered the Civil Rights Act of 1957 for more than 24 hours, and a well-organized filibuster almost derailed the landmark Civil Rights act of 1964.

Since the 1970s, the filibuster became a regular tool of partisan combat. In his new book “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy,” Adam Jentleson, who previously worked for former Senate Democratic Majority Leader Harry Reid, provides a powerful historical account of the ways the 60-vote threshold for legislation has had devastating effects on the Senate’s ability to govern. Instead of allowing the Senate to flourish into a great deliberative chamber, it has paralyzed the legislative process and rendered Congress ineffectual. Now senators don’t even have to filibuster anymore — the mere threat of a filibuster can delay legislation.

Since Republicans are not interested in a robust federal government, tying the Senate up in knots fulfills their political goals. Under McConnell, the GOP accelerated the use of this political weapon during the Obama administration, blocking judicial nominations and stifling attempts to achieve immigration reform and gun control. It was this kind of obstruction that led Reid to finally opt for the so-called “nuclear option” and in 2013 do away with the filibuster on nominations made by presidents except those to the US Supreme Court. McConnell, who warned Democrats that they would come to regret this decision, and demonstrated why when Senate Republicans won the majority in 2017 — and ended the filibuster for Supreme Court nominations, clearing the path for Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

The cost of the filibuster has been immense. Congress has lost its ability to legislate. Republicans — who already have disproportionate power in the Senate because the upper chamber gives smaller states the same number of representatives as larger ones — abused the filibuster. As a result, Democrats have not been able to push reforms on issues like climate change — even though a majority of Americans support them. And so, serious problems continue to fester in this country.

The inability to get major legislation through the Senate is an important reason why presidents have expanded the use of executive orders. The problem is that executive action is always limited in nature. Presidents can’t make laws; they have to work within existing laws. Executive action is also transitory. Presidents can make changes with the stroke of a pen, but their successor can reverse those decisions just as easily. This results in a transitory approach to government that is not suited to handling long-term, systemic problems, like racial injustice or the climate crisis. It also results in policy changes that lack the legislative imprimatur that is at the heart of our democratic process and has led to enduring programs like Social Security and Medicare.

There is no evidence that the filibuster helps create comity. In fact, the expanded use of the filibuster coincides with the most divisive and polarized periods in American political history. Over the last few decades, bipartisanship has collapsed on Capitol Hill in part because the filibuster has encouraged lawmakers to take the easy way out and double down along party lines instead of working together to compromise.

As the debates over the filibuster unfold, nobody should take McConnell’s arguments very seriously. He’s certainly within his rights to defend the filibuster as a tool of partisan obstruction, but he should at least be honest about it, rather than espousing some fantastical notion that he is acting in the name of unity. But maintaining the filibuster in its current state comes at a high cost. Obama was right. It is a “Jim Crow relic,” and one that today keeps us decades behind where we need to be in public policy.