Sh*t To Help You Show Up October 1, 2021

We Interrupt Our Regular Programming For This Important Message

Happy Friday, friends! Today we’re going to take a break from our regularly scheduled programming and talk about the filibuster.

“I didn’t subscribe to read about politics!”, some of you may reply. Tough cookies. This is important. Like, more important than any other social issue currently on the table. Why? Because until we end the filibuster, no other substantial and meaningful legislation will advance through the U.S. Senate to address gun violence, climate change, police brutality, infrastructure (the legislative conundrum of the moment), poverty, abortion rights, or voting rights. Period. It all hinges on this one outdated, misunderstood, misrepresented rule.

So, today we’re going to talk about it, and after you’re done reading I hope you will take action, repeatedly, until the filibuster is ended. Integrity demands that we discern what is right and then stand for up for it publicly, so consider this particular newsletter integrity in action.

What is the filibuster?

The filibuster is a Senate rule that prevents debate on any piece of legislation that the minority party wishes to obstruct. The name originates from a Dutch word, which then became a Spanish word, for a particular brand of pirate. These pirates were primarily United States citizens who fomented insurrections in Latin America in the mid-19th century for “financial gain, political ideology, or the thrill of adventure,” often with the unofficial approval of the U.S. government. Rampant individualism and covert imperialism, all in one tidy package!

The Senate filibuster was not a part of the Constitution but arose 129 years after the country’s founding due to a loophole unintentionally created by Aaron Burr. Whoops! Way to go, Aaron.

When the filibuster emerged it was a way for any senator to gum up the works of the Senate and prevent legislation he objected to from proceeding by literally talking until he couldn’t talk anymore. Nothing else could happen while this dramatic oration was occurring because, at that time, the Senate was only allowed to do one thing at a time. If dude could manage to convince other senators to his cause while he endlessly blustered, great! If not, he’d eventually run out of steam and the Senate would wearily move on.

Both the obligation to hold the floor, the inevitability that if the legislation was strongly enough supported by a simple majority that it was going to pass anyway, and senators’ desire to get on with the next item of business kept the use of the filibuster to a relative minimum until the 20th century. Still, its use was increasing over time, especially in the era of the Civil war and Reconstruction, when filibusters were used to obstruct the entry of states into the Union depending on legal slavery status, civil rights bills, and bills aiming to enfranchise black voters.

But the straw that broke the camel’s back, ironically, was the action of a dozen anti-war senators during WWI, who opposed arming a group of merchant vessels to fight German submarines. In response, at President Wilson’s urging, the Senate introduced a cloture rule in 1917, Senate Rule XXII, which allowed filibusters to be shut down with the support of a 2/3rds majority.

Rule XXII did not prevent use of the filibuster to advance a white supremacist agenda, however. White supremacist legislators utilized the filibuster to block anti-lynching legislation, civil rights legislation, and voting rights legislation for decades. According to researchers, half of the legislative measures killed by the filibuster from 1917 to 1994 focused on civil rights and racial justice.

Following the Watergate scandal, there was a push for various government reforms, including addressing the filibuster, but proponents were unsuccessful at full elimination. Instead, a compromise was struck in 1975 and the cloture threshold was reduced to 60 votes, which is where it still stands today.

At the same time, however, senators shot progress in the foot by allowing the Senate to advance more than one item at a time, the two-track rule. This killed the talking filibuster. Now, senators didn’t have to stand up and actually obstruct business publicly, risking disagreement with their constituents for their views. They could just let their party leadership know that they opposed a bill privately, and Senate leadership could justify moving the bill to the back-burner. The bill was still theoretically “under discussion”, except for the fact that no one was actually usefully discussing it.

This move to allowing filibusters to happen behind closed doors means that it is impossible to know exactly how many pieces of legislation have been killed over the years due to the practice. However, cloture measures have to be formally filed with the Senate and their filing has skyrocketed in direct relationship to the rise of hyper-partisanship in Washington. They’ve become practically all the Senate does anymore.

What do you mean, all they do?

I mean, they don’t actually legislate, which is theoretically what we elect them for, isn’t it? The explosion of the use of the filibuster to effectively kill public debate on the Senate floor means that the Senate’s ability to actually move legislation forward has effectively disappeared. They pass less than 5% of the bills that are introduced every year. If you or I had those kinds of productivity levels multiple years in a row we’d get fired, and rightfully so.

Here are the bills passed in hard numbers since 1947.

And here are the percentages in the same time period.

You might ask, what are those assholes doing all day? They’re not governing, that’s for sure. They’re “debating” the crucial issues of our time via their siloed news media outlets and shoring up their respective party’s power.

In an excellent, exhaustive unpacking for Vox of all the arguments in support of the filibuster, Ezra Klein points out that the filibuster is no longer a tool of individual senators to stand on their conscience, but the tool of political parties:

the modern filibuster is not primarily, or even importantly, the tool of individual senators, and is instead the tool of parties. The mechanism through which they act isn’t debate, but the simple communication of intent: The minority leader’s office informs the majority leader’s office that they will not allow a given bill to move forward without 60 votes, and so if the majority does not have 60 votes, the bill does not move forward. Parties use the filibuster to stop their opponents from passing legislation, not to encourage discussion.

Not only is the filibuster the means for the minority party to obstruct the agenda of the majority at all costs, but the minority also acquiesces because obstruction from either side is easier than actually governing:

Members of both parties prefer the problems of paralysis to those of governance. They are more eager to block the other party from governing than they are committed to governing themselves. Or, to put it even more directly, given the choice between keeping the promises they made to the American people and sabotaging their opponents’ ability to keep their promises, they choose the latter.

In other words, the Democrats right now do not get off the hook for this problem. They clearly would prefer to make endless campaign promises about their agenda and then blame the GOP for blocking them, rather than take the necessary steps to honor those promises and actually enact that agenda.

But isn’t it good to protect minority views?

Theoretically, yes. But the structure of the Senate itself already “protects minority views”. The representation for each state, regardless of population, is set at two senators. This means that as the U.S. population has increasingly moved to urban areas (a worldwide trend), the minority rural, primarily White, largely Republican populations of the country have an increasing degree of influence over policy. As of this year, for instance, California has a population of 39 million. How many senators represent them? Two! Wyoming has a population of 579,000. How many senators represent them? Two!

According to the Brennan Center, “by 2040, given projected population growth, two-thirds of Americans will be represented by just 30 percent of the Senate.” And there are serious racial implications to Senate representation skewing to primarily rural states as well. In the New York Times, author David Leonhardt argued that the Senate is essentially “affirmative action for white people.” He calculated that White Americans get 0.35 senators per million people; Black Americans get 0.26; Asian Americans are right behind them, with 0.25; and Hispanics are last in the race to the bottom, with 0.19. We, White folks, are the current racial majority, but according to the Census Bureau’s projections, we will be in the minority by 2045.

Okay, but won’t the GOP just enact all sorts of horrible legislation when they regain the majority?

Now is when we need to talk about HR 1, the For the People Act. Democrats in the Senate need to end the filibuster, and then they need to immediately move to pass HR 1. HR 1 was already passed by the House of Representatives in March 2021. Author Caroline Frederickson summarized it for the Brennan Center as containing:

necessary elements of a revitalized democratic system, including automatic voter registration, small donor public financing, redistricting reform, and a commitment to restore the Voting Rights Act. It would make voting easier and more accessible, lower barriers to running for office, and empower voters to choose their representatives rather than let representatives choose their voters.

The Republican party has effectively gerrymandered the hell out of as much of the country as they could over the last decade and a half, and they are continuing that effort right now based on the 2020 Census. Only the For The People Act will actually prevent them from doing more of the same, thus controlling electoral politics for the next ten years and likely beyond. It is crucial that HR 1 gets passed before the 2022 midterms.

And, yes, I know that Sen. Joe Manchin (D-WV) is doing his Republican-lite damndest to kill the possibility of moving any voting rights legislation forward, all in the name of the chimera of “bipartisanship”, but, seriously. Fuck that guy. Also fuck Mitch McConnell, who has said that if Democrats eliminate the filibuster he will pursue a “scorched-Earth” policy to obstruct every bit of business:

Nobody serving in this chamber can even begin to imagine what a completely scorched-earth Senate would look like. I want our colleagues to imagine a world where every single task … requires a physical quorum, which, by the way, the vice president does not count in determining a quorum.

Between those two old, White men our ability to do what needs doing to protect civil rights, abortion rights, election integrity, and the fate of the planet will amount to nothing. But, you’ll notice that what ol’ Mitch threatened was to use parliamentary rules to require all Senators to be present in the chamber. So, what? Why shouldn’t they be in the chamber where we pay them to work? If they have to jump through a whole mess of hoops while they’re there in order to move forward necessary legislation? Fine by me. Bring it, Mitch.

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Furthermore, the idea that if we simply accept the partisanship of the moment and proceed with doing what needs doing the American public will revolt is not supported by recent history. Ezra Klein beautifully describes the progression of the Affordable Care Act, which passed through budget reconciliation exclusively along party lines:

The basic ideas in the bill were quite popular before they were rolled into a legislative package and endured months of Republican attack. At the time of its passage, the bill was unpopular…But after the Affordable Care Act became law, it slowly regained popularity, and ultimately withstood Republican efforts to kill it. Today, a majority of Americans approve of the law — a recent poll found more than 60 percent of Americans in favor — a sharp swing from the polling at passage.

The answer to the conundrum of partisanship is not the filibuster. The answer is to pass legislation that delivers for the majority of the American people and trust that it will, as a result, endure. Legislate, people!

But couldn’t they just reform the filibuster?

There are a variety of ideas floating around of how to reform the filibuster, from lowering the cloture threshold again outright to making the threshold successively lower as a bill moves through the process, putting the burden on the minority to sustain debate, or (my personal favorite) requiring senators to actually commit to talking filibusters again, which would presumably mean removing the Senate’s two-track rule.

Another option that’s gaining steam is to add to the list of exceptions to the filibuster requirement certain kinds of bills. Voting rights could be one. But, seriously, there are already 161 exceptions to the filibuster rules. If you need that many exceptions to a rule to get any business done at all, maybe the rule stinks? Just a thought.

And though the sort of theatrics that would ensue if Sen. Ted Cruz (R-TX) broke out his Dr. Seuss again would be potentially both entertaining and sure political suicide for many, I personally don’t believe that reform is the answer. I think the filibuster needs to go. Senators need to be fully, publicly accountable for their individual stances, and they need to get some work done for the American people.

How do we change it?

There are two methods for changing the rule in the Senate. The first would involve getting 2/3rds of the chamber to vote in favor of changing Rule XXII. That’s not going to happen. The second option is for the Majority Leader to use parliamentary procedure to change the rule with a simple majority vote. This was previously done in 2013 by Harry Reid, the Democratic Majority Leader, and then again by Mitch McConnell, the Republican Majority Leader, in 2017.

Folks call this the “nuclear option”, but that’s only a colloquialism invented by Mississippi Republican Senator Trent Lott to scare and implicitly threaten people. Also, fuck that guy. There’s nothing inherently scary about it. It’s just parliamentary procedure.

Neither of those options is going to happen if your representatives aren’t pressured to make them happen, however, so now’s where action comes in.

Call your Senators EVERY DAY! (202) 224-3121

Put ‘em on speed dial!

When you can’t call, an email will do. You can find those on your Senator’s website, or you can write them a real letter. The address is here. There are also a host of petitions online, but that should be your last choice because it’s the easiest for Senators to ignore.

Please, folks, this is so important. Stand. Up. If you have any other issues that matter deeply to you— climate change, abortion rights, immigration, civil rights, voting rights— this must be taken care of first.

And while you’re at it, tell ‘em to pass HR 1. THANK YOU!

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We’ll be back to our regularly scheduled programming on Monday, but I hope you all enjoyed this brief return to my political reporting days. I enjoyed researching and writing it tremendously.

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XO, Asha