By a vote of 54-35, the US Senate voted to create a bipartisan commission to probe circumstances surrounding the January 6 Capitol insurrection. Those voting in favor represent more than 60 percent of US residents. However, a procedural weapon with a tarnished history of racism and subverting civil rights means that there will be no commission, because passage of that resolution required 60 votes in our undemocratic Senate. The case for abolishing the filibuster for matters related to civil rights and electoral procedures has never been greater.
Senate leadership is waiting to put up to a floor vote several reforms that would secure an equal right to vote for all, while limiting the harms of congressional district “gerrymandering” distortions. Even as majorities of Americans support enacting these measures, some members of Congress are pushing alternatives in hopes of furthering the big lie that President Biden wasn’t truly elected. Others are protecting the voter suppression tactics being advanced by members of their own party in many states in an effort to protect the status quo. Why might these senators succeed?
When a bill is being considered in the Senate, any senator can prevent a vote on the bill by taking (or simply registering intent) up time for debate, running out the clock and running down those seeking to advance change. This procedure has been used to kill anti-lynching bills, efforts to combat racial discrimination in employment or housing discrimination, and more than a dozen other civil rights bills.
Segregationists have been early and eager users of the filibuster. Of 30 measures that were supported by a majority of representatives in the House and the Senate, but killed by the filibuster between 1917 and 1994 when rules were changed to the procedure, half were bills attempting to advance civil rights. When considering the future of the filibuster and its impact on US law and society, nobody can ignore its profound historical impact on the politics of race. It is part of a larger set of mechanisms that thwart majority rule in the US.
A comparative perspective
Even if it operated under simple majority rule, the US Senate is one of the most undemocratic representative assemblies in the world. It is not just that the chamber has long been malapportioned, meaning that it under-represents some voters and over-represents others. This distortion of representation matters because both chambers are equally powerful in the US bicameral system. Indeed, the filibuster, combined with our strong bicameralism, federalism, and other separations of power, makes the US among the most “super majoritarian” constitutional systems. One of the reasons that social and racial inequalities are so persistent in our society is that the policymaking process greatly advantages one minority over others: the minority that supports the status quo over change.
Through the 20th century, the legislative power of upper chambers in most of the older bicameral democracies has been reduced or removed (such as the UK’s House of Lords) in response to growing demands for political equality. By contrast, the US Senate has grown more undemocratic. When it was established, the largest states were about 12 times as large as the smallest, and the malapportionment was even less among those who were not enslaved. Today, California has nearly 70 times the population of Wyoming. Moreover, those population disparities now produce deep inequalities in political power.
As non-college educated whites, and rural districts continue to trend toward support of the Republican Party, their over-representation in the Senate gives one party a massive advantage even when they do not control the chamber. Thanks to the filibuster, that party can stop legislation with only the support of about 20 percent of US voters. Even an adjustment like Washington D.C. becoming a state would not put much of a dent in overcoming the racial bias embedded in the Senate.
What’s at stake if we fail to act
In this exact moment in history, there’s a (brief) opportunity to take real action on the most pressing issues and policies that we face. Letting the anachronistic filibuster get in the way would squander that opportunity. Voting rights for all who are eligible, D.C. statehood, and several other pieces of legislation that address democratic procedures stand to be blocked if the filibuster is not abolished for that purpose.
To quote Georgia Senator Raphael Warnock, “it is a contradiction to say we must protect minority rights in the Senate while refusing to protect minority rights in the society.” The contradiction the senator refers to lays bare the exact issue with this arcane procedural rule—a white minority, adverse to voting rights and other pressing issues of our time, can kill legislation that would empower Black, Latinx, Indigenous, and other communities of color across the country.
We can no longer afford to stand idly by and allow the filibuster to reinforce a powerful minority, intent on restricting civil rights, as it historically has. If we fail to act in this moment, to seize on an opportunity to fully support measures to level the playing field for communities that have been historically marginalized, progress in strengthening our democracy will be stopped in its tracks.
The choice is ours to live out the values that we say we hold dear and build a country that is more inclusive and welcoming—to do this, we must abolish the capacity of the Senate to filibuster questions of civil rights and democracy once and for all.
This post was co-authored with Taofik Oladipo, Washington Representative for the Center for Science and Democracy