Updated at 2:45 p.m. ET on July 30, 2020.
Through the mid-20th century, southern segregationists relied on the Senate filibuster as their ultimate legislative weapon to block equal rights for Black Americans. Now the renewed struggle over those rights may doom the filibuster itself, perhaps as soon as next year—as former President Barack Obama signaled when he dramatically endorsed ending the filibuster at Representative John Lewis’s funeral today.
With Donald Trump struggling in the polls, Democrats now are eagerly contemplating the possibility that the November presidential election could deliver the party unified control of the White House, the Senate, and the House of Representatives for the first time since 2009. But that excitement is tempered by the recognition that under any scenario, Republicans will almost certainly still control enough Senate seats to block most of the Democrats’ ambitious agenda through sustained filibusters.
That prospect raises alarms among advocates for a broad range of causes, including climate change and immigration reform. But after this spring’s nationwide outpouring of protest following the killing of George Floyd in Minneapolis, many Democrats believe that if the party wins unified control, issues of racial inequity and civil rights may create the greatest pressure yet to eliminate the filibuster. At Lewis’s funeral in Atlanta, Obama previewed how intense that pressure could grow when he described the filibuster as a “Jim Crow relic” and flatly declared it should be eliminated if it is used to block a new Voting Rights Act—which Democrats have already named after Lewis—and other electoral reforms.
Leaders of the burgeoning racial-justice movement are unequivocal in warning Senate Democratic leaders that they risk an eruption if they achieve unified control yet allow Republican filibusters to kill civil-rights initiatives that pass the House, as bills on police reform, voting, and other issues have in this session.
That “will be unacceptable,” Rashad Robinson, the executive director of Color of Change, a leading racial-justice organization, told me. “It will be unacceptable to people who have waited a long time. It will be unacceptable to people who are already skeptical of electoral politics. It will be unacceptable that a body that is deeply unrepresentative of a diverse America is telling people to wait more time.”
Aimee Allison, the founder of She the People, an organization that mobilizes women of color, sends the same blunt warning. “It’s unacceptable to say there is nothing we can do, that we must be held hostage by Republicans who have enabled a Trump presidency and a set of policies that have hurt us,” she told me. “We can’t be held hostage by the filibuster.”
Democrat Jeff Merkley of Oregon, the Senate’s chief advocate for ending the filibuster, agrees that civil-rights concerns (along with climate change) may be the issue that forces the party to roll back or eliminate the tool if they win the majority. “I think it’s unacceptable to campaign on issues and to say you care about them, and then hand [GOP Majority Leader Mitch] McConnell the ability on behalf of powerful special interests to block those efforts,” Merkley told me. On racial-equity policies in particular, Senate Democrats can’t allow “one person the veto to stop them from happening.”
The filibuster, which traces back to the 19th century, allows the minority party to block action on Senate bills by extending debate. In 1917, the Senate required a two-thirds vote to end a filibuster; in 1975, that threshold was lowered to three-fifths, or 60 members in the current Senate. But the upper chamber can restrict or eliminate the filibuster itself with only a simple majority. A Democratic-controlled Senate voted in 2013 to end the filibuster for presidential appointees, including lower-court judges; four years later, after Trump took office, Republicans abolished it for Supreme Court nominees too. “The Senate seems to be on a very steady march towards majority rule,” Sarah Binder, a senior fellow at the Brookings Institution, told me.
But the filibuster, for now, endures for legislative proposals. While the budget “reconciliation” process could allow Democrats to pass bills related to federal spending—likely including plans to expand the Affordable Care Act—with a simple majority, that tool cannot be stretched to encompass many other party priorities, such as immigration, gun control, LGBTQ rights, much of the climate agenda, and racial-equity issues.
Democrats, both inside and beyond the Senate, have been sharply divided on whether to try to end the filibuster; several senators have expressed concern about losing their ability to stop Republican policies if and when the GOP next achieves unified control. Joe Biden, who was mostly a conformist during his 36 years in the Senate, has never expressed much enthusiasm for elimination, though earlier this month he did say he’d “take a look at” ending the filibuster if Republicans become too “obstreperous” in opposition.
Merkley says his conversations with colleagues about the filibuster “are different” now than before—partly because the prospect of seizing Senate control is within sight, partly because they’re more and more frustrated by the erosion of open debate in the chamber. In addition to eliminating or restricting the filibuster, Merkely wants to restore senators’ ability to offer unlimited amendments on pending legislation, something that McConnell and his predecessor, the Democrat Harry Reid, severely limited.
For most of the Senate’s history, “amendments have been common and supermajority votes have been rare,” Merkley says. “Now it’s the opposite. The Senate has really deviated from its historic tradition … [of] every senator being able to put ideas on the table, force votes on those ideas, and therefore create accountability on those issues.”
Several factors are converging to propel civil-rights concerns to the center of the growing debate over the filibuster’s future.
One is that Democrats are unlikely to win unified control in the first place without big turnout in November and big margins among voters of color. Another is that this spring’s protests galvanized attention on racial inequality for voters across the Democratic coalition. Adding to the pressure is the widening racial gap between the parties and the diverging Americas they represent. Republican senators largely represent the least racially diverse states, and almost all of them rely preponderantly on white votes even in states that are more diverse, particularly in the South. And because Republicans dominate less-populated states, the current Republican majority in the Senate won about 14 million fewer total votes than the Democratic minority, according to calculations by Molly Reynolds, a senior fellow in governance studies at Brookings. (That tabulation excludes the two Republican senators appointed to their positions, Kelly Loeffler of Georgia and Martha McSally of Arizona.)
For all these reasons, many racial-justice advocates include the filibuster in their list of structural barriers that perpetuate white-conservative minority rule and unfairly impede the nation’s nonwhite communities from acquiring political influence commensurate with their growing size. (Also on that list are the Electoral College, voter-suppression laws, and the constitutional requirement that each state have two senators regardless of population.)
Democrats can’t cede control on civil-rights and racial-equity issues to a “group of senators who are less and less representative” of the country, Allison told me. The “filibuster is a tool that they use to impede progress. We have got to think about the broader structure in order to enable a multiracial-reflective democracy. If we don’t have those conversations—one protest to the next, one campaign fight to the next—it’s harder to gain traction and to craft a government that is more responsive to the people.”
Another reason racial equity could be the issue that breaks the filibuster is the mechanism’s history. It is routinely used by the Senate minority to block action on almost any issue that cannot be shoehorned into the reconciliation process. But for most of the last century, the filibuster was deployed primarily by southern segregationist Democrats, in many cases with support from Republican conservatives, to prevent action on civil-rights measures such as fair housing and anti-lynching laws. When the Senate approved the Civil Rights Act in 1964, after a titanic four-month struggle on the floor, it was the first time the body ever broke a southern filibuster on civil rights.
If a Republican minority blocks civil-rights legislation again in 2021, “the pressure to get rid of the filibuster would be unbearable, and [Democrats] would have to get rid of it,” predicts Adam Jentleson, a former deputy chief of staff to Reid and the author of an upcoming book about the Senate, Kill Switch. Starting next year, Democrats “simply could not explain” to their coalition and the broader public alike that they would fail “to pass a new civil-rights agenda in deference to the procedural tool that was invented by segregationists to uphold Jim Crow and white supremacy. That is an unsustainable argument for Democrats to make.”
Signals from the current Congress suggest this debate could gel very quickly in 2021, because Democrats appear much more likely than in the past to generate simple-majority support for the biggest elements of the modern racial-equity agenda.
Long after the 1960s, the House Democratic caucus included a large number of members from southern and rural districts dominated by culturally conservative non-college-educated and non-urban white voters. Race-related policies often split the caucus in two. But especially since the 2018 midterms, House Democrats predominantly represent the nation’s major metropolitan centers, and they’ve shown extraordinary unity in passing a suite of civil-rights measures whose scale has generally been overlooked.
House Democrats have passed H.R. 1, a sweeping election-reform bill that would vastly expand access to voter registration, mail balloting, and early voting; reform the congressional-redistricting process and campaign-finance laws; and undo some of the laws Republican-controlled states have passed to impede voting access. They’ve passed a new Voting Rights Act that would undo the Supreme Court’s 2013 Shelby County v. Holder decision, which opened the door to the wave of voter-suppression laws approved in GOP states in recent years. They’ve passed far-reaching police-reform legislation drafted in response to the Floyd protests. And they’ve passed legislation to make Washington, D.C., with its large Black population, a state. House Democrats, incredibly, supported all four bills unanimously, except for a single “no” vote on D.C. statehood from Representative Collin Peterson, who’s running for reelection in a Minnesota district Trump won by 30 points.
If they retain their majority next year, House Democrats would unquestionably pass all of these bills again. And the companion bill to each of these has widespread support in the Senate. For instance, all 47 senators who now caucus with the Democrats have endorsed a new voting-rights act sponsored by Leahy, the former Judiciary Committee chairman, as well as the Senate companion to H.R. 1.
In a world where Democrats achieve unified control, the filibuster will be the final obstacle for most, and perhaps all, of these proposals—not to mention sweeping immigration reform, gun control, workplace protections for the LGBTQ community, and other issues that the House would likely approve. And Democrats will know that control could be tough to maintain. The last four times a president—of either party—went into a midterm with unified control, voters have revoked it. (That list includes Trump in 2018, Barack Obama in 2010, George W. Bush in 2006, and Bill Clinton in 1994.) No party has controlled all the levers of government for more than four consecutive years since 1968. In all likelihood, Allison says, unified government would provide Democrats “a short window” of opportunity after 2020.
A Senate Democratic majority could vote to eliminate the filibuster immediately after it takes control, before any legislative action begins. But most political observers I’ve spoken to believe they may resist taking that step until they face a Republican filibuster blocking them on a specific bill they want passed—as Biden suggested in his comments earlier this month.
That means one of the most important choices facing Democrats may be picking the issue that forces the filibuster’s future to a head.
Merkley predicts that even if Democrats can’t agree to end the filibuster on all legislation, they might be willing to eliminate it for measures such as H.R. 1 and the new voting-rights act. “There’s such a sense that protecting and taking on the gerrymandering, voter suppression, and dark money is so important, it could well be a case … where every Democrat would come together to support a simple-majority” vote requirement, he told me.
That would be a momentous step. But it likely wouldn’t satisfy civil-rights activists, who are impatient for action on other issues with more immediate effects on day-to-day life than changes to the underlying electoral rules. Which is why some observers believe police reform is the issue most likely to crystallize the debate over the filibuster.
Such people think a Republican Senate minority, conscious of history, might look to cut a deal on police reform, because they wouldn’t want that to become the dispute that potentially ends the filibuster—and positions them as the modern heirs to southern segregationists such as Richard Russell and Strom Thurmond. Yet few signs suggest that many Republicans would accept the reform measures that the House has already passed and might build on next year. And that could make police reform the crucible that ultimately cracks the weapon of the filibuster, forged into its modern form through decades of “massive resistance” to civil rights.
“I do think it’s going to take a substantive issue to provide the motivation for senators to get rid of the filibuster,” Jentleson says. “In this environment, it is probably better to do it on an issue like police reform. There would be some serious historical continuity there that would add an extra layer of poetic justice to it.”