Picture by Hilary Stone Ginsberg

Republican obstructionism is making it harder and harder to defend the filibuster.

Still, Democratic Senator Kyrsten Sinema of Arizona tried to do just that earlier this week in an opinion piece in The Washington Post. Sinema’s argument can be summed up simply: Democrats will not always have a majority in the Senate, so if we Democrats overturn the filibuster in pursuit of the “For the People Act” (which Sinema co-sponsors), what would stop a Republican-controlled Senate from rescinding the Democratic law to pass a GOP ban on mail-in voting and/or to impose a draconian GOP voter-ID law? Or worse?

Sinema wrote her piece before Republicans filibustered the sweeping voting rights bill. The vote was on a procedural proposal to start debating the measure, and it went down on a straight party vote of 50 to 50, failing to achieve the supermajority required to move legislation forward in the modern Senate. Sinema, and other Democratic defenders of the filibuster, argue the tool is needed to encourage bipartisanship, but if Republicans unanimously will not even allow discussion of the “For the People Act,” it is hard to understand how moderate Democrats hope to reach a bipartisan agreement. If your adversary will not even discuss the issue, what room is there for compromise?

It is, of course, true that Republicans could turn the tables on Democrats and ram an undemocratic voting bill through the Senate. But, it is not always easy for a subsequent Congress to undo what a previous Congress did. Republicans tried numerous times for 10 years to repeal the Affordable Care Act, failing to muster support for what became a very popular public health measure. A comparison between the ACA and the “For the People Act” may not be entirely apt, as the ACA provides millions with healthcare, while Republican attempts to restrict voting is less tangible to many Americans. Still, a bill to insure voting rights for often disenfranchised groups, in part by making voting easier and more accessible, is likely to enjoy widespread support, making it difficult for Republicans to repeal it. 

But, that is speculative. Now, the truth should be obvious to everyone who cares about democracy: If Democrats do not find a way around the filibuster, it does not matter what a subsequent Republican-dominated Senate might do because Republicans in states they control are imposing the very measures Sinema fears a Republican-controlled Congress might impose in the future. Republicans at the state level are undermining democracy by passing strict voter ID laws, restricting mail-in and early voting, replacing bipartisan local election officials with Republican loyalists and political operatives, and threatening to allow state legislatures to determine the outcome of future elections by overriding the will of the people. A potential voter denied the right to vote does not care if he or she is disenfranchised by the federal government or by his or her state. The voter simply cares that he or she has been disenfranchised, period! The sad reality in 2021 is that America cannot have both democracy and the filibuster.

Sinema has allies among Democrats who object to eliminating or revising the filibuster to pass a sweeping voting rights law. Senator Joe Manchin of West Virginia has been outspoken in his defense of supermajorities. Not all moderate Democrats agree, however. Senator Jon Tester of Montana says, “I think the filibuster’s important, but I think [protecting democracy] is fundamental to our country and who we are. And so I would take another look at the filibuster, if that’s what we need to move forward on this.”

The ancient Senate of the Roman Republic was the first legislature to use the filibuster. It was the favorite tool of Cato the Younger, the leading voice of the optimates, derived from the Latin word for best and applied to Rome’s conservative elite. Its role in frustrating popular measures was not lost on the Framers, who did not put it in the Constitution. It is, instead, an artifact of Senate rules, and an erroneous one at that. It came into being in the early 19th century when Vice President Aaron Burr mistakenly applied it to a procedural motion. It languished for several decades until senators realized that they could actually delay a motion by filibustering. 

The Framers disapproved of minorities running roughshod over majorities (and their opposite, which is why they built minority protections into the structure of government). Alexander Hamilton wrote in Federalist 22, “If a pertinacious minority can control the opinion of a majority…. [Then the] situation must always savor of weakness, sometimes borders upon anarchy.” James Madison, always concerned about protecting minority rights, nevertheless wrote in Federalist 10, “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” Yes! “Regular vote!”

Madison would, no doubt, have argued that requiring supermajorities to pass most legislation violates “regular” voting. And, a majority of Americans agreed with that view for most of our history, as the filibuster was used sparingly, mostly by segregationists to prevent civil rights legislation. It once required senators to actually talk a bill to death. Today, a senator can indicate his or her intent to oppose a bill, causing its delay. In other words, just one senator, by his or her opposition, can sideline a bill.

As Senator Sinema would say, what one Senate does, a subsequent Senate can undo. The filibuster exists by a Senate rule; the Senate can vote it out of existence by a simple majority. And, it should do so. The right to vote is intrinsic to democracy, and a minority cannot, and ought not, to be able to use minority obstruction to deny millions of Americans the right to vote. Especially when that minority, the Republican Party in this case, would reap partisan benefit from its exercise of minority power.

Posted June 25, 2021

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