When Barack Obama called the Senate filibuster a “relic of the Jim Crow era,” he was off by only a few thousand years.
The requirement for a supermajority to advance legislation actually is a relic of the Julius Caesar era, points out constitutional expert Jonathan Turley in a column on his website.
“In ancient Rome, the filibuster was used to force the Senate to hear dissenting voices, including an opposition of Cato the Younger to Julius Caesar returning to Rome,” said Turley, a professor of law at George Washington University.
“The foundation for the filibuster today can be traced to an argument by former Vice President Aaron Burr that led to a change in the early 1800s. The minority has used versions of the rule to block or force consensus on controversial legislation, ranging from war actions to oil mandates. It was not created in the Jim Crow era.”
The filibuster, which requires 60 votes to advance legislation, is white hot now because it stands in the way of the Democrats’ radical agenda.
But as a senator, Joe Biden defended the filibuster.
“The Senate ought not act rashly by changing its rules to satisfy a strong-willed majority acting in the heat of the moment,” he said in 2005.
“Proponents of the ‘nuclear option’ argue that their proposal is simply the latest iteration of a growing trend towards majoritarianism in the Senate. Gad save us from that fate, if it is true,” Biden said. ” … Adopting the ‘nuclear option’ would change the fundamental understanding and unbroken practice of what the Senate is all about. Senators would start thinking about changing other rules when they became ‘inconvenient.’ … Altering Senate rules to help in one political fight or another could become standard operating procedure, which, in my view, would be disastrous.’
Turley pointed out that “some of the most abusive uses of the filibuster” were by segregationists in the 1950s, especially Democratic Sen. Strom Thurmond of South Carolina, who “set the record with filibustering the Civil Rights Act for over 24 hours.”
NPR reported Sen. Chuck Schumer, D-N.Y. is “threatening” the Republicans, insisting they either compromise or Democrats will eliminate the filibuster. In response, Minority Leader Mitch McConnell, R-Ky., has warned that Republicans would bring a “nuclear winter” on the Senate floor.
“Nobody serving in this chamber can even begin — can even begin — to imagine what a completely scorched earth Senate would look like,” McConnell said.
The rule has been changed several times. The threshold was reduced from 67 votes to 60 in 1975. Democrats eliminated it in 2013 for votes on executive branch and judicial nominations. In 2017, the GOP expanded the Democrats’ changes to include Supreme Court justices.
NPR noted opponents of the legislative filibuster don’t have the 50 Democratic votes they need to end it, with West Virginia Sen. Joe Manchin, Arizona Sen. Kyrsten Sinema possibly open to changes but not to eliminating the filibuster altogether.
Biden complained it was “being abused in a gigantic way,” but his party used it hundreds of times in recent years when the GOP held the majority.
Turley explained the filibuster “was designed as a protection for the minority in what is often called ‘greatest deliberative body.'”
“It is not inherently racist. If that were the case, every majority rule would be racist because all of our racist legislation was passed by majority votes, including bills that supported slavery or target minority groups.”
In fact, he said, when Democrats recently were in the minority they claimed the filibuster was the heart of the Senate and that threatening it put the Senate “on the precipice” of a constitutional crisis.
Democratic activists even has threatened to paint Manchin and Sinema as “racist” for opposing the filibuster.
“So members are now on notice that the rule designed to protect minority rights in the Senate will now be viewed as trying to deny minority votes in elections,” Turley said. “It is that simple. Yet a great irony is that this original purpose of the filibuster has never been more essential. While one can make the case against the rule on purely democratic or majority grounds, such concerns previously raised by Obama and others are magnified today.”
Obama, when his party was in the minority, warned that without the filibuster, “the fighting and the bitterness and the gridlock will only become worse.”
“We are worse off when there is little need for consensus.”
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