The Filibuster Is a Jim Crow Relic

The Biden/Harris administration has ambitious plans that enjoy the approval of a majority of Americans that range from the Covid-19 relief package just passed to infrastructure spending, to tax increases on the very wealthy and large corporations, to expanded voting rights protections.  They all face the prospect of Republican obstruction given the design defects of the U.S. Constitution which give undo power to rural, sparsely populated states which each have two senators and which have disproportionate weight in the Electoral College.  The third obstacle is the Senate filibuster which appears nowhere in the Constitution and which is merely a Senate rule fabricated in the 19th century and used in the 20th century to block civil rights legislation that would benefit southern blacks in particular.  Currently Republicans at the state level are seeking to restrict voting rights and in the Senate Republicans seek to block federal legislation that would prevent states from enacting new Jim Crow style laws to maintain white voting power. The only thing missing in the Senate are flat out admissions to the racist agenda driven by Mitch :Moscow Mitch" McConnell.  A piece in New York Magazine reminds us of the racist history of the filibuster.  Here are excerpts:

Senate minority leader Mitch McConnell is palpably desperate to preserve the Senate’s legislative filibuster. Last week, he warned that a majority-rule Senate would permit such horrors as the enactment of his own party’s platform. On Tuesday, he returned to the Senate to denounce what he called “a new, coordinated, and very obvious campaign to get liberals repeating the claim that the Senate rules are a relic of racism and bigotry.”

In response to this “coordinated and very obvious campaign” to associate the filibuster with racism, several Republicans are insisting just the opposite. National Review’s Dan McLaughlin and Senator Ben Sasse are echoing McConnell’s talking points.

[T]here is a huge difference between wanting to change the rules and refusing to follow the rules as constituted. Baseball managers may wish to abolish the designated-hitter rule, but pointing out that they continue to use a designated hitter rather than sending their pitchers to the plate hardly invalidates their argument. The objection to the filibuster is not that people who use it are immoral but that the rule itself is bad for the country.

McConnell’s allies likewise insist that the filibuster wasn’t created specifically for racist purposes but is merely one tool that was used to protect white supremacy.

This completely misunderstands the link between racism and the filibuster. The Founders rejected a supermajority requirement in either chamber of Congress, but the filibuster emerged by accident later in the 19th century. At first, it required unanimous consent; the threshold was later reduced to 67 votes and then to 60. But by custom, it was used rarely and almost always for the purpose of blocking civil-rights bills.

This is not merely coincidental. A routine supermajority requirement would have been completely intolerable. Only because it was reserved for bills protecting black people did the majority tolerate its periodic use. The filibuster exception to the general practice of majority rule was a product of an implicit understanding that the white North would grant the white South a veto on matters of white supremacy.

Opponents of even the most massive pieces of New Deal and Great Society legislation did not dare use the filibuster to thwart them. That was the norm. It survived because northern whites believed that social unity and national peace required special deference to the white South.

As Adam Jentleson, a former Senate aide and author of Kill Switch, points out, southern Democrats specifically defended the filibuster on the grounds that it would be reserved exclusively to block civil-rights laws: Don't take it from me. Here is [Senator Richard] Russell himself, the self-avowed white supremacist and leading defender of the filibuster, testifying in a 1949 Senate hearing that the filibuster debate was really about civil rights: "nobody mentions any other legislation in connection with it."

When Barack Obama called the filibuster a “Jim Crow relic,” that is the history he meant: a supermajority hurdle that was once permitted only because it would be wielded to suppress black Southerners had evolved into a tool against all kinds of legislation. To be sure, the Senate has carved out several exceptions; budget bills and court appointments can now be passed with a majority.

This means McConnell can accomplish most of what he wants with a majority — tax cuts, judges, and defunding social programs — while his opponents need a supermajority. It took 60 votes to create Obamacare, but the law would have been defunded with just 50.

McConnell and his party have very rational reasons to keep the legislative filibuster in place; those reasons are not racist. But the filibuster is a Jim Crow relic because, if it were not for racism, it would have disappeared generations ago.