The Filibuster, its History, and the Profoundly Undemocratic Present

The Senate will likely pass the $1.9 trillion Covid Relief Bill in the next few days through budget reconciliation. Later in the year, the Dems will come back to do a second bill — an infrastructure bill — also on the reconciliation line. That’s a rare opportunity, as you normally only get one a year, but the last Congress punted on doing a budget for fiscal year 2021, so technically — this one is really THAT one, and the next one, in the fall, will be for fiscal year 2022. Then in calendar year 2022, we’ll do a third before the election for fiscal 2023.

That means a few things politically.

First, it means that the Dems — provided everyone stays healthy, and the party can keep Manchin in the tent — will get three good cracks at the ball going into the midterms, which isn’t all that bad, particularly if we see decent economic recovery, the vaccines hold, and we get kids back in school by September. But it also means that that is ALL we’ll be able to do for the next two years, as every other bill will have to face the filibuster threshold of 60 votes.

So, as it stands, that means no minimum wage hike, no voter protection, no gender equality legislation, no police reform. The John Lewis Voting Rights Act will die this spring. The George Floyd Justice in Policing Act will die this summer. Other solid bills that make it out of the House will die in the winter and spring of next year. We’ll get the three budget bills before the election, and that’s it.

Everything else will be theater.

That, obviously, sucks. It sucks so much that it got me wondering precisely how much it sucks — and wanting to measure it.

If you’re reading this, you likely need no lecture on the anti-democratic nature of the United States Senate — but I’ll give you one anyway.

The reporting around the nature of that particular beast has been pretty good. So good, that it’s become common knowledge — at least on our side of the fence — that the 50 Democratic Senators represent 184,541,791 Americans, where as the 50 Republican Senators represent only 142,991,983 Americans. That’s absurd, but it’s also in the Constitution — so, it’s not going to change.

What could change, of course, is the filibuster.

The filibuster has a long and dumb history. It started, almost literally, as a mistake. It exists nowhere in the Constitution, and any claims that it is an essential part of the Founders’ vision for America is ahistorical, stupid, and wrong. What happened is that Vice President Aaron Burr, in 1805, was presiding over the Senate and he got a little anal about the Senate rule book. There was rule on voting to end debate called the “previous motion” regulation. In short, the rule book said that whenever a majority of Senators wanted to stop talking about one issue, so they could start talking about the next issue, someone could cite the “previous motion” question and hold a vote.

Simple majority stopped debate. In the previous several years, however, the Senate only had to do that a handful of times, largely because Senators at the end of the 18th and beginning of the 19th centuries had a whole lot of time on their hands to let their colleagues talk themselves blue in the face. If they couldn’t get to the tariff issue on Wednesday because Gouverneur Morris liked the sound of his own voice, fine. You could wait until Thursday. Or Friday. Or the following Monday. One of my favorite bits of history about the Senate is that in 1789, shortly after its first quorum call, that Chamber voted to hire a doorkeeper — literally someone to guard the door so the public and the press would be kept in the dark about what went on inside, and given that in those years the average American consumed, on average, 5 GALLONS of pure alcohol annually — about two-and-a-half times more than today — you can be sure those guys were constantly sauced, and very comfortable.

So ramble away!

Anyway, Burr didn’t like there being a rule that was never used, so he had it removed. Thus eliminating the “legal” route settle an “previous motion” question.

In the 19th century, the Senate started getting busier, as the nation expanded. As such, the job of being a Senator became more complex and individual Members realized they could gum up the works by simply never giving up the floor. There was no way to make them shut up, due to the Burr rule change. Since, during that era, the Senate could only consider one issue at a time, any Senator could essentially prevent the body from functioning via “the filibuster,” a word derived from the Dutch that means “pirate” or “robber.”

Several efforts were launched to end the filibuster in the 19th century, but they all failed when they were filibustered. Of course.

See! I told you this history was dumb!

Amway, from the middle of the 19th century until the 1917, that was the state of play, when a small band of Republican Senators prevented Woodrow Wilson from passing a law to arm merchant ships for the Atlantic crossing. That brought out a pique of anger in Woody, and he railed against the Senators as anti-American and harming the war effort. Across the nation, there were Senatorial likenesses burned in effigy, and the body got the point. A commission was established to figure out how to resolve the “previous issue” question, and the “vote for cloture” was born.

Originally, it was to be just a majority vote, essentially reestablishing the rule that Burr had removed a 112 years before, but a Republican on the committee filibustered the reform, and they compromised on a supermajority. The limit cut off has wandered since then, and now stands at three-fifths, or 60 votes to end debate and bring a bill to the floor.

The filibuster was a nightmare in the middle of the 20th century, particularly in the realm of Civil Rights legislation. There were enough Dixiecrats to crash the Senate on virtually any legislation. They succeeded for years, until LBJ’s towering presence looming over reluctant Senators — combined with the manifest injustice of American Apartheid — forced a successful cloture vote on the Civil Rights Act of 1964. At the time, cloture required 67 votes. It received 71, including that of Clair Engle from California, who — suffering from brain cancer, paralyzed, and unable to speak when his name was called in the roll, lifted a crippled hand to his face, and pointed to his left eye — his “aye” — to signal in his vote in the affirmative.

A few years later, the Senate — largely crippled by the burden of the filibuster — changed the rules again, but they did not vote to eliminate it. Instead, they allowed the Senate to conduct other business in parallel, thus giving us the worst of both worlds: A bill can now be filibustered, but at no cost. The Senate can continue its other work. A Senator no longer need to hold the floor. They can just threaten a filibuster, and the bill never moves to cloture, while the rest of the body continues to function with committee meetings, confirmation hearing, and all the rest.

But that’s the history. Here’s where the rubber hits the road in 2021.

As noted above, most folks who pay attention to this stuff know that the Senate is a dysfunctional, disastrous mess. They know about the 60 vote filibuster, and how Democrats already represent 41,549,808 more Americans with half of the chamber, but I don’t think its really sunk in for most people how badly anti-democratic the body has become.

To try and get a handle on it myself, I built a database using the 2019 US Census estimates, cross-referenced for Political Party and State Population. Here are the highlights of what I found:

Some of these number have been previously mentioned.

Total US Population: 327,553,774

Pop. Dem Senators Total: 184,541,791 (56.3%)

Pop. Rep Senators Total: 142,991,983 (43.6%)

Dem Senators Represent: 41,549,808 (12.9%) more voters than Rep Senators.

But here is the kicker:

If you total the populations of the states represented by the 41 Republican senators from the smallest states in the Union, you get 66,418,627 Americans, or just 20.3%.

That means, if all 50 Democratic Senators, plus the 9 Republican Senators from the most populated Red States joined together to support a bill, they would STILL be unable to bring it to the floor. The will of 261,135,147 Americans (79.7% of the country), can still be thwarted by the filibuster.

It is madness to consider, but the Senate is so wildly undemocratic, that the representatives of only 1 in 5 Americans hold an effective veto over any meaningful change in our nation. The Senate, in short, has become the kill switch of Democracy, perhaps even the nation, and until that changes, we are truly and deeply screwed.

It’s almost enough to make you want to burn some Senatorial effigies. I’d propose we start with one shaped like Joe Manchin’s fat head.

Once a history teacher in Brooklyn, Mike took a sabbatical in 2004 to travel through Latin America. He never returned. He lives and works in Guatemala.