Throughline - Pirates of the Senate

Episode Date: February 10, 2022

The fight over the filibuster brings up some deeper questions that we as a country are facing. How do we make space for disagreement without ending up at a stalemate? Can we use the tools given to us by previous generations without turning them into weapons? And how do we decide which parts of our system should be changed – and when it's time to change? The filibuster can hold legislation hostage, stop bills from ever reaching the Senate floor, and lead to hours-long speeches in Congress, but it can be hard to understand what a filibuster actually is, why we have it, and how it impacts the country. In this episode, we look at how the ongoing battle over the filibuster's future is in some ways a battle over its past.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from Autograph Collection Hotels, with over 300 independent hotels around the world, each exactly like nothing else. Autograph Collection is part of the Marriott Bonvoy portfolio of hotel brands. Find the unforgettable at AutographCollection.com. They began as shadows, drifting in the space where sky and sea meet. If you listened really closely, you could hear them, growing closer, wave by wave, growing faster. Before long, something would come into view. Two crossbones and a skull. An omen of death billowing in the wind.

And by then you'd know it was too late. The Freebooters, a.k.a. the Filibusteros, had arrived. The term was used mostly first apparently by the Dutch to describe looters and robbers who were living on other people's booty and spoils. The French took it and then the Spanish took it and by the 19th century we were using it to describe Americans who were going across Central America in the West Indies pirates and adventurers in other words welcome to the Caribbean think Jack Sparrow Pirates of the Caribbean it is my intention to commandeer one of these ships pick up a crew and tour to the great pillage plunder and otherwise bill from our Weasley Blackguards out it's not very noble.

I mean, it's like it's not, it's really kind of down and rough and dirty, if it were. You are without doubt the worst pirate I've ever heard of. But you have heard of me. Somehow, before long, by the middle of the 19th century, that same word, filibuster, would begin to be used in the halls of Congress.

People were applying it to what was going on in the U.S. Senate, right? Sort of rebellious techniques for holding up things they opposed. And ever since, we've had pirates in the Senate. You'd be forgiven if every time you heard the word filibuster, your eyes glaze over a little bit. Because filibustering these days, well, it's not quite as exciting as it was in those swashbuckling, sword-fighting days. But something that has stayed the same is that the filibuster still involves taking something hostage in the hopes that you get what you're after. The filibuster is really an effort to hold up the Senate, to block or delay momentarily or for a long time or forever from getting to a vote, right? Senators having a goal in deciding they're going to take the Senate hostage so they can

move legislation or block legislation. And look, this affects all of us because in recent decades, nearly every major piece of legislation that's come through the Senate on things like health care, gun control, climate change, and civil rights has been at the mercy of the filibuster. So let's quickly run through how a filibuster actually works these days. The Senate is made up of 100 senators, two from each state. You need just 41 senators to filibuster to take a piece of legislation hostage. And you need 60 senators to end a filibuster, technically called a cloture vote. Don't worry, we'll come back to that later. Main thing to know is that anything short of 60 senators and nothing moves forward. So it gives the minority party some power back.

Now, you might imagine a filibuster sounds something like this. Get up there with that lady that's up on top of this Capitol dome, that lady that stands for liberty. A senator talking and talking for hours and hours on end. And I'm going to stay right here and fight for this law's cause, even if this room gets filled with flies like these. If you were my age or somewhat older, the image you'd have in your head would be Jimmy Stewart, the actor in the movie Mr. Smith Goes to Washington. From, I guess, the 1930s.

He's okay, just painted. If that's not ringing any bells, maybe you'll recognize this. I remember the first time I voted. I was in my bedroom, and I was five. I voted for Mildred, my stuffed pig. But my cat Pancakes won. She had more funding. Politics, right?

Thing is, that approach... How long have I been talking? Three hours? No, eight minutes. Okay. ...known as a talking filibuster, it's kind of outdated. Since the 1970s, senators have been able to use something called the silent filibuster, which basically means a group of 41 or more senators can just say that they're going to filibuster, and the mere threat of it grinds everything to a halt, stopping a bill in its tracks. No long-winded speech necessary. That Sam I am, that Sam I am. I do not like that Sam I am. And sure, we still do occasionally get things like this. Do you like green eggs and ham? A monologue from Senator Ted Cruz that clocked in at a whopping 21 hours and 19 minutes. Would you

like them here or there? I Would you like them here or there? I would not like them here or there. I would not like them anywhere. I do not like green eggs. But it's not always what it seems. In this case, the Senate allowed Cruz to keep talking. But since there weren't actually enough votes for a filibuster, this essentially amounted to a symbolic one. Could this pseudo-filibuster actually hold up the bill?

No. But did it score Cruz some brownie points with his supporters? Probably. And that gets to something important. Filibusters, even the symbolic ones, are a powerful political tool, a tool meant to help maintain our democracy, at least in theory. We have this notion that the filibuster is like this principle of unlimited debate to protect minority interests and so forth. But as we discovered, it's really just politics.

It's brute force politics of senators abusing, exploiting the filibuster long over this long history of the Senate. I do so like green eggs and ham. Thank you. Thank you. Sam, I am. I'm Sarah Binder. I am a political scientist. I share my time between George Washington University and the Brookings Institution, a public policy think tank in Washington, D.C. Sarah co-wrote a book on the history of the filibuster back in 1996 called Politics or Principle?

Filibustering in the United States Senate. Back then, when the book came out, the Senate was kind of tied up in knots and it was pretty partisan, right? If the Democrats were for something and if President Clinton was for something, the Republicans were against it, right? And vice versa. Given that, I could never imagine how much more partisan things would become and how much more the filibuster would be exploited by both parties in the minority.

There were calls to reform or even eliminate the filibuster at the time, and those calls have grown louder since. Sadly, the United States Senate, designed to be the world's greatest deliberative body, has been rendered a shell of its former self. In recent weeks, facing opposition to the voting rights bill, President Biden has been pushing to get rid of the filibuster. President Biden lambasted the Senate for not taking action and framed this issue as one for the history books. Do you want to be on the side of John Lewis or Bull Connor? Do you want to be on the side of Abraham Lincoln or Jefferson Davis? This is a really significant reversal for President Biden, who spent decades in the Senate and for years now has said he opposes changes to the filibuster.

But he said things are different now. I believe that the threat to our democracy is so grave that we must find a way to pass these voting rights bills. But it seems he's lost the battle for now. The filibuster is what makes the Senate hopefully work when it's supposed to work. There's no need for me to restate my longstanding support for the 60-vote threshold to pass legislation. Some Democrats refuse to vote to eliminate the filibuster for legislation, fearing what that could mean when Republicans are back in the majority, which could happen later this year in the midterm elections.

The fight over the filibuster brings up some deeper questions that we as a country are facing. How do we make space for disagreement without ending up at a stalemate? Can we use the tools given to us by previous generations without turning them into weapons? And how do we decide which parts of our system should be changed and when it's time to change? So, like with many things in our current political environment, the ongoing battle over the filibuster's future is in some ways a battle over its past. I'm Randa Abdel-Fattah. I'm Ramteen Arablui. And on this episode of

ThruLine from NPR, it's the ghost of filibuster's past. We'll revisit some key moments from the life of the filibuster that shaped it into what it is today and that factor into debates about what it might become. Hi, this is Aubrey. I'm calling from the high plains of Laramie, Wyoming, and you're listening to ThruLine from NPR. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today or visit WISE.com. T's and C's apply. Support for NPR comes from Newman's Own Foundation,

working to nourish the common good by donating all profits from Newman's Own food products to charitable organizations that seek to make the world a better place. More information is available at newmansownfoundation.org. Part one, the mistake. The hearing will come to order. We'll do opening statements and then we'll go to the witnesses. So I testified as part of a set of hearings that the rules committee in the Senate held. This is back in 2010. In order to learn more about the filibuster. The filibuster used to be the exception to the rule.

In today's Senate, it's becoming a straitjacket. Presumably with the idea that the Senate might reform rules over filibustering. At the time, Barack Obama was the president, his first term in office, and Democrats had the majority in the Senate. In the decades leading up to this hearing, the use of filibusters had skyrocketed, from single digits in the early 1900s to dozens during the civil rights era to hundreds in the 1990s and 2000s. Since I joined the Senate in 1999, I have seen the use of filibuster continue to increase under both Republican and Democratic majorities.

So it's not just one party doing it. The hearing that I participated in was to talk about the history of the filibuster. And Charles Schumer, who was chair of the committee at that time, this is before he became majority leader as he is now, opened the hearing basically saying, you know, this is a hearing that we're going to use to gather some information about the history of the filibuster. Only by carefully exploring these issues can we answer the question, should we change the Senate rules? And if so, how and when? Knowing the history of debate in the Senate and the efforts to limit it is the first step. As a political scientist, you often think that politicians don't care about your work.

So I was thrilled to be there, and it was quite an experience. This is Gregory Warrow, chair of the Department of Political Science at Columbia University, and... He's the co-author of the book, Filibuster, Obstruction and Lawmaking in the U.S. Senate. On that day in 2010, Gregory was called to testify before a panel of Democratic and Republican senators, along with three other experts. I think we'll proceed from my left to my right. Including. So you may begin, Ms. Binder. Sarah Binder. Chairman Schumer, ranking member, Alexander, members of the committee, I appreciate the opportunity to testify today about the filibuster.

I want to offer three arguments. So, yeah, a little nerve wracking. I mean, you are sitting there and a fair number of senators showed up. But, you know, you boil it down to very simple terms, which sometimes is hard with the filibuster. But I boiled it down enough that I think, you know, calms the nerves. Sarah and Gregory were there to help create a kind of roadmap to Senate filibuster history for the senators themselves. And since those senators are the ones deciding its future, we thought it made sense for us to follow that same roadmap into the past. We'll start at the beginning.

What does the Constitution say about the Senate? OK, so let's turn back the clock to 1787. It's the starting point for a lot of our stories about American government. The year the Constitution was written, the year the founders laid out a vision for the country. And Senator Schumer's question suggests that it's the starting point for this story, too. The idea that the filibuster was part of the original design of the Senate, right, that the founders in writing the Constitution foresaw this. Former Republican Senator Pat Roberts, who was one of three members of the minority party

asked to speak at the hearing, made that point outright. The founding fathers had the foresight to create an institution that was based not on majority rule, but where each state, regardless of size or population, had two senators to speak out on their behalf. It is that power to speak,

the right to unlimited debate, that is the hallmark of this body. Only problem is, it turns out that's not true. The filibuster doesn't actually appear anywhere in the Constitution. In fact, some of the founders seem to have been opposed to the idea of a filibuster, including Alexander Hamilton. Senators themselves have been instrumental in perpetuating the myths because it serves their political purposes and their policy aims to be able to rely on the notion of the filibuster. And so the more mythic it is, I think it's harder to reach and harder to take down.

The real version of events is a lot less mythical. When the first House and Senate meet for the very first time and they have to adopt their own set of rules, they basically adopt what looks like roughly the same rulebook. And the rulebook in both chambers had a previous question motion. A previous question motion basically meant that if a debate felt like it was going on too long, a member of the House or Senate could end the debate by asking everyone if they were ready to put the bill in question to a vote. If a majority agreed, debate would end, members would cast their votes, and a decision would be made about the bill, thereby shutting down minority opinions. The House has kept this previous question motion to this day.

So we don't see filibusters in the House because a majority that sticks together moves the previous question and cuts off debate. And that takes you to the vote on whatever you were pursuing. But the Senate took a different path. The Senate gets rid of their previous question motion. So our question here is, how did the Senate, why did the Senate get rid of the previous question motion? The answer to that question can be found in the year 1805. The vice president is Aaron Burr. Pardon me, are you Aaron Burr, sir? That depends who's asking.

Broadway musical star. I'm Alexander Hamilton. I'm at your service, sir. I have been looking for you. I'm getting nervous, sir. As vice president, he's the presiding officer of the Senate. He has already murdered Alexander Hamilton in 1804. The Senate doesn't seem to care, which is also kind of funny for people who said,

they don't care, fine. The indicted murderer is going to give us advice, great. In his final speech to the Senate, Burr laid out a new approach for how the Senate should operate. He's giving sort of this ode to the Senate and complimenting them on their great ways of deliberation. And then he says, paraphrasing here, you're a great Senate, but a great Senate has a good rule book and yours, paraphrasing, is a mess. And he proceeds to walk through all these rules that he wants and thinks should be changed. And the one he highlights in particular is the previous question motion.

He says, look, you know, you're not really using it. And when you use it, it postpones action. And sure enough, in 1806, senators come in, they adopt a new set of rules, and that previous question motion is gone. Without the previous question motion, there was no longer a way to end debates in the Senate. They could, theoretically, go on forever. I'm convinced they did it because the understanding was that they didn't really need it. The Senate was a very small body. It was very clubby. Keep in mind, there aren't very many people in the Senate in that period. There's just 17 states, two senators a state, 34 senators total. And so senators could engage in the kind of back and forth that even fierce rivals would be able to basically reach

agreement on things. And if you lost, you accepted that and you moved on. So you didn't push things to the limit. That space, that unlimited potential for debate created by getting rid of the previous question motion, that space is what would become the filibuster. It's created not because they're great senators dedicated to free speech and not because the framers created an institution where minorities could talk all day and block majorities. It's created, I think, by mistake. I think Aaron Burr sets in motion a set of procedural steps that nobody could have anticipated at the time leading to today's filibusters. Since there was no procedural rule to cut off debate for most of the 19th century, how did that affect decision-making in the Senate?

This was Senator Schumer's second big question in the hearing. And it's a logical one. Because after Ehrenberg convinced the Senate to get rid of the previous question motion, there was basically nothing preventing a senator from debating a bill indefinitely. That cloture rule we mentioned at the top, where 60 senators can end a filibuster and vote on a bill, it didn't exist yet. So if you have no legal way of limiting debate, you might assume, especially as a modern-day senator, that people would just go on arguing forever. But for a while...

It's kind of business as usual. You don't see much obstruction happening in the Senate. We don't really see a lot of filibusters until late 1830s, early 1840s. There's a number of reasons for that. By the 1840s, the nation was no longer in startup mode. The economy and military were expanding, the number of states had doubled, and political parties were finally becoming influential. We begin to get real political parties, meaning that we have not just senators who have a party label after their name, but they're voters who think of themselves as, as it were, Democrats and Whigs, those first sort of what we call electoral or mass political parties.

And the Senate began facing some bigger problems. Managing the country's finances, growing partisanship, and of course, the biggest issue of all, what to do about slavery. Senators who were in the minority began to use more left-field tactics to get their way. And talking for hours on end to delay a bill was the perfect tactic.

They could be impassioned, insubordinate, even insulting, and no one could stop them. And it's around this time when the word filibuster begins to appear in Senate records. Suddenly, this tool that Aaron Burr had haphazardly carved out decades earlier was not only being used, but was given a name equating

it to piracy, which could be interpreted as meaning, wow, that's badass, or wow, that's a mess. Either way, these filibusters were pretty rare before the Civil War. It was really only after the war, as the country absorbed millions of newly emancipated black Americans and faced new questions about its identity, that the filibuster started to be used more. The Senate grew larger, more polarized. It had more work to do, and people started paying attention to it. By the 1880s, almost every Congress began to experience at least one bout of obstructionism over civil rights, election law, even appointment of Senate officers,

these great issues of the day. And that's when some senators began to sound the alarm about the filibuster. When filibusters did occur, leaders tried to ban them. Senate leaders tried and failed repeatedly over the course of the 19th and early 20th centuries to reinstate the previous question motion. More often than not, senators gave up on their quest for filibuster reform because it would put the majority's other priorities at risk. When we come back, the battle to rein in the filibuster heats up. This is Jeanette Stewart from Atlanta, Georgia, and you're listening to Thru come from the NPR Wine Club, which has generated over $1.75 million to support NPR programming. Whether buying a few bottles or joining the club, you can learn more at nprwineclub.org slash podcast. Must be 21 or older to purchase.

Support for this podcast and the following message come from Kay Buxbaum in support of the David Gilkey and Zabiula Tamana Memorial Fund, established to strengthen NPR's commitment to training and protecting journalists in high-risk environments. Part 2. A Little Group of Willful Men. Before giving my prepared comments, I would point out, I believe it was Washington, it certainly was one of our founders, who was quoted as saying at the Constitutional Convention, the Senate was going to be like the saucer under the teacup, and the tea was going to slosh out

and cool off. And the Senate, he anticipated, would be a place where passions would be reined in and presumably progress would be made in the political center. And it seems to me, if you look back over the 200-year history of our country, the Senate has certainly forced solutions to the middle. And most observers would argue that that's been good for the country. In the 2010 hearing on the history of the filibuster, Senator Mitch McConnell, the Republican minority leader in the Senate then and now, gave an opening statement on behalf of his party. I submit that the effort to change the rules is not about democracy at all. It's not at all about doing what a majority of the American people want. It is about power.

If it were truly about doing what a majority of Americans wanted, the Democratic majority in the Senate would not have muscled through a health spending bill that a majority of Americans opposed. He's referring to Obamacare, which had become law about a month before this hearing. It's about a political party or a faction of a political party that is frustrated that it cannot do whatever it wants, whenever it wants, precisely the way it wants to do it. That's what this is about. The hearing devolved into partisan bickering. And for me, it was incredibly illuminating about the dynamics

of American politics, where I was expecting to participate in largely an academic discussion, but immediately it got into a partisan argument. Partisan arguments have surrounded the filibuster for over a century now. Back in the early 1900s, there were people making the same argument that McConnell was making, defending the filibuster as a bastion of democracy and a way of protecting minority views in our government. An argument, by the way, that many Democrats, including Senator Schumer, have made when they were in the minority. There were also arguments being made to rein in the filibuster. Difference is, in the early 1900s, there were no limits at all.

Senators had been pushing for a cloture rule, that rule that allows a set number of senators to end a filibuster for decades. And decades went by without progress. The filibuster wasn't used that often, so it wasn't usually at the forefront of people's minds. But then, in 1917, something changed. Which brings us to Senator Schumer's third big question of the hearing. What eventually prompted adoption of the cloture rule in 1917

that for the first time in the Senate allowed senators by a two-thirds supermajority to vote and end debate. So in 1917, we're on the eve of World War I, and there are deep divisions in the country about whether the United States should get involved in the war or not. These divisions had been brewing for several years, both in the public squares and the chambers of the Senate, as flames and bullets and trenches engulfed Europe. And there was one bill in particular that keeps coming up. A piece of legislation called the Armed Ship Bill. That Woodrow Wilson, Democratic president wanted to see enacted. There was a Democratic majority after 1912.

And the Armed Ship Bill is an attempt to arm merchant marine ships who were over in Europe so that they would be sort of caught. They could defend themselves if they were caught in skirmishes during the war. There are some who are concerned that this is basically going to put the U.S. on a path to war because this will be seen as provocation. And then these ships will be attacked. And if our ships are attacked, then we will have no choice but to declare war and get involved. The armed ship bill got to the Senate floor and was filibustered by 11 senators who opposed U.S. entry into the war.

What came to be called a gang of willful men. A little group of willful men. At least that's what Wilson called them. In a speech, Wilson let his anger be known, saying, quote, the Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible. And he decided if he couldn't make any progress playing by the rules, then the rules needed to change.

And he basically goes around the country, pillorying the senators, right, to kind of fuse in the public's mind the filibuster and the issue of national security. Wilson's anger began to spread like wildfire. Literally. Effigies of the little group of willful men were burned around the country. He was speaking directly to the American public, who were naturally on high alert. There was a war raging after all, and every day it seemed to be inching closer. It seems like the writing is on the wall that the U.S. is going to get involved in this war.

Passions are inflamed. And this is one of the times where the filibuster really is a focus of public attention. Wilson may have lost the battle over the arms ship bill, but he managed to twist the Senate's arm so that it had no choice but to reform the filibuster. Some senators wanted it to be a simple majority, meaning anything more than half ends debate, but they were forced to compromise.

So the Senate adopts Rule 22 that establishes a two-thirds cloture rule. Okay, a two-thirds cloture rule. Let me break that down for you. At the time, there were only 48 states, so two senators from each state equals 96 senators, and two-thirds of that equals 64 senators. And if they got together and agreed to invoke cloture, then a filibuster would end. Debate would stop and voting would begin. This cloture rule was similar to the previous question motion that the Senate originally had, except it made it way harder to end debate because you needed way more votes.

Now, you might remember that today we have a little lower threshold for this. Three-fifths or 60-vote cloture rule to end a filibuster. I know, it's a lot of math. But if you're wondering how we landed at that version, you're not alone. Senators had the same question for Gregory Warrow in the hearing. I've been asked to discuss the period from 1917 to 1975, a critical period in the history of the filibuster that is bookended by two major reforms in the Senate. The first being the adoption of the cloture rule in 1917, and the second being the reform in 1975 that lowered the cloture threshold to three-fifths of the Senate. Between 1917 and 1975, the filibuster became deeply embedded in the fabric of the institution and became accepted by senators as a legitimate tactic for shaping the course of

lawmaking. Its repeated use against civil rights legislation prompted numerous attempts to change Rule 22 to lower the threshold required for cloture. In fact, the passage of civil rights reform became deeply entwined with cloture reform. During Jim Crow, local and state laws were put in place to keep white and black people segregated in public spaces across the American South. As senators in favor of civil rights reform took the majority in the Senate, Southern senators opposed to those reforms used the filibuster more and more against all kinds of civil rights legislation, including anti-lynching laws that would have made lynching a federal crime. The December 3, 1922 front page of the New York Times read, in all caps,

FILIBUSTER KILLS ANTI-LYNCHING BILL. Over the next few decades, Congress debated almost 200 anti-lynching measures. Not a single one passed. So the filibuster had become more of a central part of the strategy that Southern politicians engaged in in order to preserve the existing system of the South, right, to maintain Jim Crow in the South. In the forefront of the move are Alabama and Mississippi delegates. Alabama's got me so upset. Tennessee made me lose my rest.

And everybody knows about Mississippi gone down. Your technique of leadership is considerably different. If I may, I'd like to quote from a chap here who one observer has quoted one of your biographies. Being won over by Johnson is a rather overwhelming experience. The full treatment is an incredibly potent mixture of persuasion, badgering, flattery, threats, reminders of past favors and future advantages. How does this... I would say that the appellate was more interested in the Senate structure than he was accuracy. In 1957, as a civil rights bill made its way to the Senate, Lyndon Johnson, who was the Senate majority leader at this time, put a lot of time

and energy into building enough bridges with Southern senators to convince them not to filibuster the bill. As a Southern Democrat himself, he was able to speak to their concerns. It probably also helped that the bill had been heavily watered down. The fact that they were able to forge this compromise, I think is very instructive about how the Senate operated, even up to this point, right? It's sort of like you could forge this informal compromise and it would largely hold. Well, for the most part. Strom Thurmond, a senator from South Carolina, remained hellbent on stopping the civil rights bill in its tracks.

I tell you, the American people from one side or the other had better wake up and oppose such a program, and if they don't, the next thing will be a totalitarian state in these United States. Thurmond was a staunch segregationist. He'd run for president in 1948 as a so-called

Dixiecrat, and on the campaign trail reportedly said, quote, there's not enough troops in the army to force the Southern people to break down segregation and admit the Negro race into our theaters, into our swimming pools, into our homes, and into our churches. And he was determined to kill the Civil Rights Bill of 1957, even if no one else was with him. In the days leading up to the filibuster, he did some conditioning to help his body get ready for it, taking long steam baths, which dehydrated his body, in the hopes that he wouldn't have to leave the Senate floor to pee. On August 28, 1957, at 8.54 p.m., Thurman took the Senate floor

and declared the civil rights bill to be, quote, cruel and unusual punishment. He then went on to talk for 24 hours and 18 minutes, a Senate record that hasn't been broken to this day. The reason that Thurman set the record was because no other senators would help him. That he basically engaged in a solo effort because he reneged on the deal that Johnson had struck with the Southerners. In other words, Thurmond was just grandstanding, staging what basically amounted to a symbolic filibuster. The votes just weren't there. And the Civil Rights Bill of 1957 passed without a problem.

But a few years later, when Lyndon Johnson was in the White House, he faced a much bigger filibuster battle over the Civil Rights Act of 1964. The act was much more robust, more threatening to the Jim Crow Act of 1964. The act was much more robust, more threatening to the Jim Crow way of life, and it was harder for Johnson to sell. When the Senate begins consideration of this obnoxious power grab legislation in another week, it will be the aim of our small band of Southern senators

to make certain that every facet of this legislation is discussed, considered, and expanded at great length, even indefinitely, if necessary. Southern senators banded together and filibustered the bill for 54 days. It was a grueling process to get over the closure vote threshold. Congress passes the most sweeping civil rights bill ever to be written into the law and thus reaffirms the conception of equality for all men that began with Lincoln and the Civil War 100 years ago. This is a proud triumph. Yet those who founded our country knew that freedom would be secure only if each generation thought to renew and enlarge its meaning.

According to Gregory Warrow, while the act eventually passed, the struggle required to pass it and the years of filibustered civil rights reforms leading up to it sparked a renewed push to reform the cloture rule. And eventually, in 1975, the vote count was changed from two-thirds to three-fifths, lowering the amount of votes needed to end a filibuster to 60. The history of the filibuster is one where the obstructionists try new things, and they see what they can get away with.

And oftentimes, there's a response from those who are trying to move the Senate forward to use different maneuvers to crack down on what the obstructionists are doing. A messy, imperfect process that would only get messier in the 21st century. When we come back, the Senate goes nuclear. Hi, my name is Dan Drake from Verona, Wisconsin, and you're listening to ThruLine from NPR. Support for this podcast and the following message come from the American Jewish World Service. Working together for more than 30 years to build a more just and equitable world. Learn more at AJws.org.

Part 3. The Nuclear Option Right now, we are on the precipice of a constitutional crisis. We're about to step into the abyss. The ideologues in the Senate want to turn the founding fathers, what the founding fathers called the cooling saucer of democracy, into a rubber stamp of dictatorship. The Senate is not a majoritarian body. Every word of my speech today was originally spoken by our esteemed colleague, the senior senator from New York, Chuck Schumer. I am sure my colleagues could quote me opposing filibuster reform just as I could quote them in favor of such reform.

But that is not the point of these hearings. The fact is that all of us on both sides of the aisle struggle with the same questions. Both parties have a love-hate relationship with the filibuster, depending on if you're in the majority or in the minority at the time. But this is not healthy for the Senate as an institution. It makes sense that most senators have a love-hate relationship with the filibuster these days. Because whereas the filibuster was a tool of last resort for much of its history, it's become a tool of first resort in the last few decades.

Both parties, one in the minority, have used it more and more to obstruct the majority from getting things done. It's a seesaw in perpetual motion. Majority, majority not. Majority, majority not. Majority... President Biden and most Senate Democrats recently pushed to get rid of the filibuster for their voting rights legislation. But some want it gone altogether, a.k.a. the nuclear option. Experts call the nuclear option a drastic move. So what exactly is it? In short, it's annihilation of the filibuster. If a simple majority, that's 51 senators, decided to use the nuclear option, then from that point on,

all that would be needed to end debate and pass bills would be a simple 51 vote majority. At the moment, there are a lot of individuals who want to see the Democrats be able to push through Biden's agenda, right? Push through a more liberal agenda. And they see the filibuster as a tool to obstruct them from doing that, right? The Democrats have unified control of the federal government. They should be able to work their will. The filibuster is preventing them from doing that

on very important piece of legislation. But your view of the filibuster today may not be the view of your filibuster tomorrow. That is one of the great conundrums that the country faces. You know, if you get rid of the filibuster, what are the consequences going to be? It's obviously impossible to know for sure, but we do have a preview of what might happen because we've seen the nuclear option play out before. The filibuster has been eliminated for judicial nominations, right, from the Supreme Court on down.

It was the culmination of years of tit-for-tat politics in the Senate. Filibusters of judicial nominations were still pretty rare. We didn't really see them become prominent until... On this day prescribed by law and marked by ceremony... The administration of George W. Bush... We celebrate the durable wisdom of our Constitution and recall the deep commitments that unite our country... There were a set of nominees that the Democrats were unified against, and they were able to prevent them from getting to the bench. There were some compromises and some of the nominees that they opposed got through.

But for the most part, the Democrats were successful on a small scale in preventing these nominees from getting through. Now, the Republicans responded when they were relegated to the minority in the Senate by ramping up the obstruction of nominees, especially... Good afternoon, everybody. ...Barack Obama's nominees. It's no secret that the American people have probably never been more frustrated with Washington. And so things really escalated. You know, this is part of the history that we've been talking about where... Over the past five years, we've seen an unprecedented pattern of obstruction in Congress

that's prevented too much of the American people's business from getting done. There's innovations in the filibuster and then you push the limit on things and then you see how the majority responds. Senate Democrats voted to lower the threshold to break a filibuster from 60 votes to 51 votes, a simple majority. It strips the minority party's ability to block a president's nominees. It's called the nuclear option for good reason. So Democrats use the nuclear option to get rid of the filibuster for all presidential nominations, except those to the Supreme Court.

Say to my friends on the other side of the aisle, you'll regret this, and you may regret it a lot sooner than you think. And then in 2017, after Donald Trump is elected president, after Republicans have their majority in the Senate, and they're able to pick a replacement for Antonin Scalia. Last night, President Trump nominated federal appeals court judge Neil Gorsuch of Colorado. The Democrats could have filibustered that nomination, and there's no doubt that they would have filibustered that nomination.

But before they could do that... Today, the president told the Republican leadership to confirm his nominee to the Supreme Court. If you can, Mitch, go nuclear. Even if they have to change the rules of the Senate and vote with no Democratic support. Therefore, I raise the point of order that the vote on cloture under the precedent set on November 21st, 2013, is a majority vote on all nominations.

Republicans ended the filibuster for Supreme Court nominees. And we've seen the consequences of that, right? We have seen that the inability to obstruct certain nominees means that the bench is going to look like what the majority party in the Senate and what the president wants it to look like. As a result, President Trump was able to appoint three Supreme Court justices and a lot of federal court judges who might not have been approved had the filibuster still been in place. And President Biden was able to confirm the most federal judges in the first year of a presidency since Kennedy. And so the minority no longer has this tool to prevent judges

from getting to the bench that they view as extreme. When it comes to legislation, Republicans and Democrats have been in a kind of cold war over this nuclear option for years now. Whenever your party is in the majority, you have your finger on the trigger. But once you're back in the minority, well, the other party has their finger on the trigger. President Trump suggested that Senator McConnell pull the trigger like he did for the Supreme Court nominations so they could repeal Obamacare. But McConnell refused. President Biden called on Senator Schumer and Senate Democrats to pull the trigger in order to pass voting rights legislation.

But they didn't have the votes they needed. And while neither party has managed to nuke filibusters for legislation yet, Gregory Waro thinks it'll happen eventually. I don't think it'll happen anytime soon, but I do think that the filibuster for legislation will be eliminated probably in my lifetime. Because I think polarization is going to intensify more. We are incredibly polarized right now. The parties are incredibly polarized and I think that

will probably get worse before it gets better. I think that there will be more frustration over the inability of the majority in the Senate to get through their agenda, and they will end the filibuster. I see this long arc in the Senate actually marching slowly, very slowly, towards majority rule. And it was Senator Shelby from Alabama, Republican from Alabama, he says, you know, you can't get the toothpaste back in the tube. Like, once you squeeze it out, you can't get it back in. And

that's what's happening with the filibuster here. You limit the times it can be used. You make it harder to use. You make it easier for majorities. And there's really no turning back. If history is a lesson, moments like the one we're in, of intense division, are the moments when the filibuster is most vulnerable, when its rules are molded and remolded in response to the pressures of the moment. The only constant in this story, really, is change.

Kind of like the life of a pirate at sea. Unpredictable. Sometimes dangerous. Sure, in an ideal world, a pirate would roll up to a ship, get the booty and spoils thereafter, and drift away without any damage done. But if people fought back, they had to bring out the heavy guns. And if the fighting got too intense, the pirates might end up sinking the ship.

So I guess the question is, what kind of ship are we on? That's it for this week's show. I'm Ramteen Arablui. I'm Randa Abdel-Fattah. And you've been listening to ThruLine from NPR. This episode was produced by me. And me. And.

Lawrence Wu. Lane Kaplan-Levinson. Julie Kane. Victor Ibeyes. Yolanda Sanguini. Monsi Corona. Camila. Dana.

Skylar Swenson. Fact-checking for this episode was done by Kevin Vocal. Thanks also to Adriana Tapia, Miranda Mazzariegos, Arnie Seipel, Deirdre Walsh, Tamara Charney, and Anya Grunner. This episode was mixed by

Andy Uther. Music for this episode was composed by Ramteen and his band, Drop Electric, which includes Anya Mizani, Naveed Marvi, Cho Fujiw band, Drop Electric, which includes... Anya Mizani. Naveed Marvi. Sho Fujiwara. And finally, if you have an idea or like something you heard on the show, please write us at ThruLine at NPR.org or hit us up on Twitter at ThruLine NPR. Thanks for listening. Thank you. That's what happens when you give Grammarly to your entire team. Grammarly is a secure AI writing partner that understands your business

and can transform it through better communication. Join 70,000 teams who trust Grammarly with their words and their data. Learn more at Grammarly.com. Grammarly. Easier said, done.