Today, Explained - The case for ending the filibuster

Episode Date: October 13, 2020

Even if Democrats win the White House, take the Senate, and hold the House, most of their legislation could be doomed because of the filibuster. Vox’s Ezra Klein says it’s filibusted. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Visit connectsontario.ca. Amy Coney Barrett's appearing before the Senate this week for confirmation hearings, and it's all but sure she'll be confirmed. More of a question of when than if at this point. But her inevitable confirmation and the Republicans about face on confirming a Supreme Court justice so close to an election has some Democrats seriously considering measures outside conventional political norms in this country. We've talked about one, packing the Supreme Court, but there's another you've probably heard about, ending the filibuster. I will speak until I can no longer speak. This is from a Senator Rand Paul filibuster back in 2013. But are you going to just drop a drone hellfire missile on Jane Fonda? He spoke for 12 hours straight.

And I would go for another 12 hours to try to break Strom Thurmond's record, but I've discovered that there are some limits to filibustering, and I'm going to have to go take care of one of those in a few minutes here. The filibuster has sort of this mythic reputation, but Ezra Klein recently argued that it's more of an impediment to democracy than a sacred tool. Ezra, for those who aren't really familiar with it, what exactly is the filibuster? You know, that's actually a harder question than you might imagine. The filibuster, the right to talk your head off,

the American privilege of free speech in its most dramatic form. I think what people think of when they hear the word filibuster is a lone senator or a group of senators talking, holding the floor, debating. I rise today to begin to filibuster John Brennan's nomination for the CIA. Madam President, I intend to speak in opposition to Obamacare until I am no longer able to stand. I mean, this was what happened in Mr. Smith Goes to Washington,

when Jimmy Stewart gave, like, a rollicking filibuster. President, will the senator yield? Senator, you yield. No, sir, I'm afraid not. I had some pretty good coaching last night, and I find that if I yield only for a question or a point of order or a personal privilege, that I can hold this for a Muslim's old doomsday. But what's happened in recent years is a filibuster has moved from being a talk-a-thon to simply a procedural maneuver. Nobody talks, nobody debates, you don't see anything happening on the floor

if you turn to C-SPAN 2. There's no like old filibuster of yore. The modern filibuster as I would define it is simply the fact that virtually everything the U.S. Senate does requires 60 votes to pass and not 51. Which takes away some of the magic. You know, there was a time when the Senate was a magical enchanted place, but not anymore.

Where did this thing come from? What was the sort of vision for this political tool when it was instituted? So there was no vision for it at all. It was a complete accident. What happens is that very early in the Senate's history, there is a speech given by then Vice President Aaron Burr. And you may remember Aaron Burr. He's the bad guy in Hamilton. He had killed Alexander Hamilton in the duel when this story takes place. And he's giving his farewell speech to the U.S. Senate. And Burr is not always a great speaker, gives this amazing speech in which he really talks about the Senate as like the citadel of liberty. This house is a sanctuary, a citadel of law,

of order, and of liberty. And it is here, if anywhere, will resistance be made to the storms of political frenzy and the silent arts of corruption. And he brings many senators to tears. But along the way, he says, look, you've got this rulebook that's full of rules you don't actually use. And if you're going to be as great an institution as you can be, then you got to get rid of these redundant rules. One of the rules to get rid of is a rule called the previous question motion. It basically just gives you a way to move off of the previous question with a vote. They get rid of it because it's never used. So the assumption is,

if we don't use it, we obviously don't need it, so let's get rid of it. And it takes literally decades until anybody realizes that now there is no way to move from one topic to another if some group of senators or some senator doesn't want you to. So as people begin to see that opportunity, that's where the filibuster comes from. The first filibuster in history is done, it is a fight on a printing contract. So early on, its history is a little weird, but slowly it becomes this important part of the Senate's self-conception and its self-mythology. Now, a really important thing to know is that initially, there's no way to end a filibuster at all. If 99 senators vote to end a filibuster, you can't do it because there's no mechanism with which to do that. Senators can talk all day and there's nothing you can do to stop it.

Yes. But here's the thing. There is a very heavy level of restraint in how it is used. It is, in fact, centered or speechifying for hours and days on end. But the minority almost never uses it to actually kill anything the majority wants to do. The filibuster is understood as a way to make sure you are heard, make sure you can make your points, make sure you can make passing this bill painful for the majority. But it is not used to kill legislation. And it's a really important point. So that brings us to 1917. And people are always trying to stop me from talking about 1917, but I just, I love it. I'm more of a marriage story guy myself.

1917, a group of senators filibusters a bill that would begin to involve us in World War I functionally. It has to do with German submarines and arming merchant ships and so on. So they actually use a filibuster to kill that bill. President Woodrow Wilson, a former political scientist, says this is ridiculous. 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. We need a way to end filibusters, and that leads to the creation of what's now

called the cloture rule. And the cloture rule gives a supermajority the capacity to end a filibuster. At that point, you needed a two-thirds supermajority of the Senate. Now you need, as of 1975, a three-fifths supermajority. So that is three-fifths to 60 votes. At what point does it become sort of this quirky device that has a sort of reputation for hijinks? I wouldn't call it hijinks or quirky because I think the story is actually much more sinister. So what happens is functionally in the 20th century, the filibuster moves from being a tool of individual senators or small groups who come together on an ad hoc basis to oppose something they really don't like to a tool of a particular group of senators. And that's the Southern Bloc. The Southern revolt against President Truman reaches its climax at Birmingham

under the state's right banner. So in the 20th century, you have this very big faction of the Democratic Party called the Dixiecrats. These are Southern Democrats. They range from being quite conservative to quite liberal, but where they all are together is on maintaining white supremacy and segregation

and white violence in the American South. And so the filibuster in this period is routinely and consistently used to block anti lynching bills, civil rights bills, voting bills. It isn't used to kill almost anything else, but it is used to kill anything that is pushing towards racial equality. And if you look at the most famous filibusters in American history, they're all on this topic. So the longest filibuster to this day is Strom Thurmond's filibuster. It's over 24 hours. And so he prepared himself in terms of his diet, did not hydrate a lot, had malted milk to kind of give him some energy, and spoke for 24 hours and 18 minutes in August of 1957.

So the filibuster becomes a tool of an organized group then, but you still have, as we've talked about on the show before, a depolarized party. So it's still a couple decades before it becomes an organized tool of parties, which is sort of its modern incarnation. The Senate now runs completely differently. It runs on the 60-vote threshold, constant filibustering, constant slowdown. And it's really nothing like the Senate of yore. You just didn't have these thresholds, these kinds of tactics being employed in a consistent way for most of American history. So, all told, throughout this sort of long and complicated history of the filibuster. How has the current iteration of this political tool diverged from whatever origin it had? The Senate just didn't used to be a 60-vote institution. And when it becomes a 60-vote institution, particularly in an era of closely divided politics, it becomes non-functional.

I'll give you a good example of this. There is a memo that somebody sent me once that comes from right after the 1964 election. And it's talking about the Medicare bill. And it says that if all of the new senators are here and present and accounted for, the Medicare bill will pass with 55 votes. Now think about that. Something as big as Medicare, right? Single-payer health insurance for the elderly passing.

And there's no filibuster expected. And none happens. That's how things used to work. You used to pass most things. Again, race was the big exception here in the 20th century. But aside from that, most things passed with a majority. If you had 51 votes, you could pass most things. Again, race was the big exception here in the 20th century. But aside from that, most things passed with a majority. If you had 51 votes, you could pass a bill. And now you can't, which means you really can't pass anything.

The fundamental question of the filibuster, and I cannot emphasize this point enough, is do we fear the problems of governing or the problems of paralysis more? Are we more afraid of what will happen if our side can govern, but also when they win, the other side can govern? Or do we prefer this idea that basically nobody can govern? Nobody is able to run on agenda, convince the American people of that agenda, get elected on that agenda, then deliver that agenda, and then get judged by the American people on that agenda, get elected on that agenda, then deliver that agenda, and then get judged

by the American people on that agenda. Instead, everything is an endless debate over why nothing happened. And so the voters keep voting people into office who promise them solutions to their problems and then don't deliver. It's unbelievably frustrating. It's unbelievably disillusioning. More with Ezra in a minute. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family. And Aura says it's never been easier thanks to their digital picture frames.

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or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Ezra, it sounds like there's lots of reasons to get rid of the filibuster. It was an accident to begin with.

It's not being used as it originally was. Are there any people out there arguing that they should keep this thing around? Yes. If you're hearing me and you think the only thing that's out there are arguments for getting rid of the filibuster, no. Most senators tend to want to keep it. The important thing for our Democratic friends to remember is that you may not be in total control in the future. And any time you start fiddling around with the rules of the Senate, I think you always

need to put yourself in the other fellow's shoes and just imagine what might happen when the winds shift. And there are a bunch of arguments. Some of them make sense, some of them don't. I did a big piece for Vox going through virtually every one of them. But I went through a couple of the very basic ones. The single biggest one you'll hear is the filibuster encourages compromise. And the logic of that is very straightforward. If you need 60 votes to pass anything, then of course, you're going to need votes from the other side to pass anything. And that means you're going

to need to compromise with them. Now one answer to this is look around we have more filibusters than ever and less compromise than ever so how's that actually working out for you? But there's a reason that this theory doesn't actually work in practice and that's that the minority understands and particularly under Mitch McConnell has understood that compromise isn't something the majority gives to the minority. It's something the minority gives to the majority, and that it is often against their political self-interest to do so. Say you work in an office and you hate your boss. Terrible guy, your boss.

And you hate what your boss does. You think his projects are bad. You really disagree with him. And in order for your boss to do anything, he needs your help. And if you help him, he gets a promotion, and you may lose your job. But if you don't help him, he may lose his job, and you may become the boss. Would you help him? Is this a trick? That is how American politics actually works. That is the actual rules we have set up. It is crazy. But so it doesn't encourage compromise. What it

encourages at this point in the age of very, very polarized parties is for the minority to sabotage the majority's ability to govern. That is what it does. But is there a counter argument that if our politics were less polarized, the filibuster could be a critical tool? Yes. And if I had wings, I could fly. This argument gets made. It gets made a lot. You know, it's not the filibuster that is a problem. Look, it's worked at other times. It's hyper-partisanship that is a problem. And they say, you know, like the logic of getting rid of the Senate was going to be drunk for the foreseeable future, I would tell you not to let them drive. Hyper-partisanship is the rule of the day. Nobody has a way of undoing it. It's not going away. At some point in the future, we might be in a different political situation, and then we should change the rules to fit that situation. But having rules built for an era of non-polarized parties, of very bipartisan politics, in an era of hyper-polarized parties and very partisan politics, is a mismatch

that is killing our ability to govern. It's making it impossible for us to do anything on climate change, on gun control, on a million issues that are unbelievably important, not just to the future of the American people, but to the world. And so, yes, it would be nice if American politics worked more smoothly. But as James, I think it was James Madison who said, you know, if men were angels, we'd have no use for government. We do not need these rules if these rules are not needed. But the issue is in the reality of how American politics works right now, the filibuster is a tool of minority sabotage. And I want to say, because I keep using minority, but I want to be very clear, because sometimes people will say the important thing about the filibuster is it protects minority rights, and it drives me

fucking crazy. I think it is appropriate at this point for me to admonish both the House managers and the President's Council in equal terms to remember that they are addressing the world's greatest deliberative body. Its members avoid speaking in a manner and using language that is not conducive to civil discourse. When I say minority here, I mean the U.S. Senate minority, right? The minority party. But the filibuster has endlessly been a tool through which the white majority tramples racial minority rights. And it is happening not just in the 20th century on civil rights bills, but today. The reason D.C. is not going to get offered statehood is the filibuster. And so you have a mostly black and brown city of 700,000 people that is bigger than some states that deserves representation in Congress, just like every other American resident does, and will not get it because of the filibuster. Because the Republican Party, an overwhelmingly white party, believes if D.C. got statehood, it would vote against the Republican Party and put in Democratic senators. And the same, by the way, for Puerto Rico.

And this is true on a bunch of issues. Why H.R. 1 or any bill like it that would re-establish the Voting Rights Act and make America more of a democracy where you cannot bar people from voting as easily and where people have more assurance that their vote will actually be counted, why won't it pass? Because it will be filibustered. And so black and brown voters in particular, though not only, are going to see their right to vote degraded. That's why Barack Obama at John Lewis's memorial service said, if you want to honor John Lewis, you pass the bills and you re-empower the bills he fought and bled for. And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that's what we should do. It feels like we're talking about this more than we ever have before. This idea of getting rid of the filibuster is more plausible now than it's been in at least decades. Will the Democrats definitely do it if they win enough seats in the Senate?

They definitely will not definitely do it. They definitely will not definitely do it. The odds are that they won't do it. But they are thinking about it in a way I've never seen them consider before. It's very telling that Joe Biden, when asked if he would get rid of the filibuster or disavow getting rid of the filibuster in the first presidential debate, refused to answer. Whatever position I take on that, that'll become the issue. The issue is the American people should speak. You should go out and vote. I asked Joe Biden this question on a call not long ago, and he said, it depends on how obstreperous the Republicans are. The reason we are talking about it much more is that in the Obama era, Mitch McConnell proved

to Senate Democrats that the old ways of legislating were dead. They came into that period hoping they could reinvigorate the bipartisan governance of the 1980s and to some degree early 1990s. And Mitch McConnell proved to them they were wrong. And he did this on 100 pieces of legislation. And then Merrick Garland and now Ruth Bader Ginsburg or Amy Coney Barrett, to name the nominee, have shown that to Democrats even more. And so in a world where the Republican Party is not going to be a governing partner for them, it will use all the power it has to do anything it wants when it is in the majority, but it will use all the power it has in the minority to keep Democrats from governing when

they're in the majority. They're recognizing that if they're going to accomplish anything that they have promised, they're going to have to get rid of the filibuster. Now, there are a number of Democrats who still don't want to do it, and they may not do it, but they are closer to doing it than they ever have been before. What do you think our politics looks like in this hyper-polarized moment under a President Joe Biden or a President Donald Trump without the filibuster? If you assume that either party in that scenario has full control of government, What it permits is that we move from it being functionally impossible to govern, even in those rare circumstances where one party has enough power to govern, to it being possible to govern reasonably ambitiously.

And so that creates a possibility for the feedback loop in American politics to become much more straightforward. The public votes in a party, the party does what they promised or what they think is the right thing to do. The public judges the results of that legislating, and then they decide whether or not to return that party to power. And it is 100% true that in the absence of a filibuster, the parties will be able to do more. And that means the party you don't like will be able to do more. But that also means that if you think the things the other party wants to do are unpopular and the American people wouldn't like them, then they will be punished for that.

So it is not that you end up in some utopia of American politics. Most of the time, governing will be very, very hard. And even in those rare occasions when one party has the power to govern, you may get things you really don't like. But that's democracy, or some version of democracy at least. And it at least gives us the chance to govern. In the end, I'm not telling you that my reforms here are utopian and the others are dystopian. I am telling you that I prefer the problems and opportunities of governance to the problems and opportunities of paralysis, and I think you should too.

Ezra Klein is editor-at-large at Vox.com, where you can find his piece on the filibuster. It's titled, The Definitive Case for Ending the Filibuster. I'm Sean Ramos for him. This is Today Explained.