February 2, 2022 Update: One of the points this post makes is that corporate special interests support senators that abuse the "silent" filibuster. Found out yesterday from independent journalist Judd Legum that a number of corporations that sent out celebratory "Black History Month" tweets have actually given big sums of $$$ last year to Senators who silent filibustered the recent voting rights legislation. Examples:
February of 2022 marks the eleventh anniversary of fourteen Wisconsin Senate Democrats fleeing to Illinois rather than allow then-Governor Scott Walker's union busting "budget repair" bill to move forward. Though the bill ultimately passed and the Democrats' actions technically weren't a filibuster, as a practical matter the Senators' Illinois sojourn was filibusteresque in impact: a final vote on [what most Democrats perceived to be] a horrible piece of legislation was delayed, allowing citizens across the state more time to learn about and speak out against it. Delay tactics also enabled a massive protest movement to occupy the city of Madison, and generated needed attention toward labor issues in the national media. In other words, the filibuster/delay tactics were an act of civic responsibility. Most Democrats loudly cheered.
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| Jimmy Stewart's legendary fictional filibuster in "Mr. Smith Goes to Washington" (1939) is a far cry from the "silent" filibuster that now rules the Senate |
I bring this up because the Democrats' current mantra that we should "end the filibuster" in the United States Senate in order to pass voting rights legislation is somewhat disingenuous, not well argued, and would rob the Democrats of a responsible tactic that will probably be needed to delay Republican zaniness if and when the GOP regains the Senate majority. What the Democrats REALLY want--and what in fact ALL citizens should want--is an end to the "silent" filibuster that has been deployed repeatedly and mastered by Republican Senate leader Mitch McConnell. McConnell's filibuster management, which makes a mockery of Senate parliamentary rules and is the opposite of civic responsibility, only requires the opponents of a bill to announce that not enough of them are willing to join the supporters to meet the 60 vote threshold necessary to end debate. This sham of a filibuster--which does not require Senators to speak on the floor of the Senate for even a minute to defend their position and delay a vote, effectively kills most legislation without those allegedly "filibustering" even having to break a sweat.
From the fact that McConnell's abuse of the filibuster is anti-democratic and robs the US Senate of any claim it might have to being the "greatest deliberative body in the world," IT DOES NOT FOLLOW that all uses of the filibuster are created equal. Let me give a hypothetical example:
Suppose the Republicans take control of the House of Representatives and attain a 51-49 majority in the Senate. Without Democrats being able to filibuster, the Republicans could do pretty much anything with a simple majority. Let's say they put forward a hypothetical bill S.2025; the "Rescuing America's Environment Act" which abolishes the Environmental Protection Agency and defunds the Superfund program that helps pay for cleanup of contaminated industrial sites. Without a filibuster, the Democrats would have to hope that the White House is occupied by a Democrat who could veto the legislation. But what if the Republicans control the Congress AND the White House? The option then might be to go the Supreme Court and get S.2025 voided on Constitutional grounds (good luck with that given the makeup of the current Court.).
Be honest Democrats: in the scenario I just raised, is it really unreasonable to require the Republicans to get nine Democrats to vote for "cloture" (thus having the 60 votes necessary to close debate) before a monstrous piece of legislation like S.2025 could become law? Of course not. But the problem is that under the current system, Democratic Senate leader Chuck Schumer would only have to mimic McConnell, announce that there are not enough votes to get to 60, and effectively kill the legislation. Not one Democrat would have to take to the floor of the Senate to offer a passionate plea against the bill. At that point, the same people outraged at McConnell's use of the silent filibuster to kill voting rights would PRAISE Schumer for doing the exact same thing on the environmental legislation.
The silent filibuster allows elected members of the House and Senate to grandstand on bills that will never pass, and then go into their districts or states and accuse the other side of not allowing anything to get done. Worse, the entire process is exploited by wealthy special interests to maintain control over elected officials. Case in point: the US Chamber of Commerce explicitly endorses the silent filibuster and sends a not-so-subtle warning to Senators that any vote to reform the filibuster rules will appear on a Chamber "scorecard." (Translation: "Hey Senator, you better keep the silent filibuster in place if you want direct payments and dark money to keep flowing to your campaign.").
We need to replace the silent filibuster with what I call the "civic." The civic filibuster combines the Senate Chamber drama of Jimmy Stewart in "Mr. Smith goes to Washington" with the turbulence of the Wisconsin Senate's excursion to Illinois. Even a filibuster opposing decent legislation has positive civic impact. Think of the filibuster over the Civil Rights Act of 1964: Southern Senators prevented the Act from becoming law for sixty days. During that time, Martin Luther King, Jr. and other Civil Rights movement leaders were able to bring awareness to the proceedings, grow their activist pool, and convince large numbers of White Americans of the moral bankruptcy of the most vocal filibusterers. Meanwhile, the overt racists and "moderates" opposing the Bill discovered during the filibuster that their support was not quite as strong across the nation as they thought.
Contrast that with the silent filibuster we just experienced in relation to voting rights legislation. Republican Senators--every bit as morally bankrupt in 2022 as their forefather Civil Rights Act filibusterers were in 1964--only had to follow Mitch McConnell's order to refuse to vote to close debate. All but the most extreme Trumpist fringe will now agree that the opponents of the Civil Rights Act of 1964 were wrong, but AT LEAST those who filibustered at that time displayed the courage of their convictions. They took to the floor of the Senate in open defiance of civil rights legislation; they made no attempt to hide behind obscure parliamentary rules. Today's voting rights opponents, in contrast, are mere cowards, silently killing legislation while giving a wink and nod to their corporate masters.
President Biden has opined that the Senate should return to the old fashioned "talking filibuster" in which a single senator holds the floor for hours at at time. What I am calling the "civic" filibuster requires the talking component, but it also has an intentional small-d democratic component. That is, it seeks not just to delay passage of a bill, but to empower citizens outside the Senate chambers to raise their voices and rally in their own communities. A good example of what I am talking about is former Texas State Senator Wendy Davis' 2013 filibuster of an anti-abortion bill in the state legislature. While Davis held the floor for 13 hours, citizens rallied in and outside of the legislative chambers, on social media, and in locations across the state. Even Republican Senator Bob Deuell, one of the sponsors of the legislation Davis was working to defeat, called her filibuster the "music of democracy."
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| In 2013 Texas State Senator Wendy Davis' 13-hour filibuster against anti-choice legislation inspired activism inside and outside the chamber, becoming the "music of democracy." |
In short, Democrats err when they call for the total elimination of the Senate filibuster. Yes, the silent filibuster needs to be eliminated. President Biden is right that the talking filibuster must be returned, but it must be more than a partisan game; it must be transformed into a civic event. Let's close by highlighting the differences between the silent filibuster and the civic filibuster:
*The silent filibuster is anti-democratic, rooted in hyper-partisan politics, secretive, and fully endorsed by wealthy special interests that rule Washington.
*The civic filibuster is pro-democracy, places principle over partisanship, is maximally transparent, and is a nightmare for Washington's wealthy special-interest overlords.
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