Obama: The filibuster is a “Jim Crow relic”

Former President Barack Obama delivered a passionate and deeply political tribute to the late Rep. John Lewis (D-GA) at Lewis’s funeral service on Thursday. Lewis was one of the nation’s foremost civil rights leaders beginning in the 1960s, and Obama spoke of how even as a very young man, Lewis endured beatings and other violence to advance the cause of voting rights for Black Americans.

Obama called for legislation restoring the Voting Rights Act, much of which was gutted by the Supreme Court’s decisions in Shelby County v. Holder (2013) and Abbott v. Perez (2018). He also endorsed other democratic reforms, including an end to partisan gerrymandering, extending statehood to Washington, DC, and Puerto Rico, and making Election Day a national holiday.

And then he called upon the Senate to remove an obstacle that has consistently stood in the way of civil rights legislation throughout American history.

“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,” said Obama.

The filibuster typically allows a bloc of 41 senators to prevent legislation from passing, and Republican filibusters stymied much of Obama’s policy agenda during his presidency.

A common metric used to measure how frequently filibusters occur is the number of “cloture” motions filed by the majority in order to break a filibuster. The number of such cloture motions more than doubled after Sen. Mitch McConnell (R-KY) became the Senate Republican leader in 2007, and McConnell continued to use the filibuster aggressively after Obama took office two years later.

Obama has criticized the widespread use of the filibuster in the past. He told Vox’s Ezra Klein in 2015 that the Senate should eliminate “the routine use of the filibuster in the Senate,” for example. But Obama’s remarks at Lewis’s funeral — in which he didn’t just oppose the filibuster but also noted the role it played in preserving Jim Crow — is probably his strongest statement in opposition to the filibuster to date.

The filibuster itself predates Jim Crow and was created entirely by accident. In 1805, shortly after he killed Alexander Hamilton in a duel, Vice President Aaron Burr returned to the Senate to deliver a farewell speech and suggested that the Senate make changes to its rules. Burr proposed eliminating the “previous question motion,” a process that was rarely used prior to his speech, and the Senate followed Burr’s advice in 1806.

But the previous question motion was hardly superfluous. Indeed, this motion was the only process allowing the Senate to cut off debate among members. No one recognized Burr’s error for 35 years — until 1841, when the first filibuster occurred. Without a way to end debate, rogue senators could delay Senate action indefinitely by insisting on “debating” a proposal forever.

Since then, the Senate has changed the rules many times to make it easier to break a filibuster, but most legislation still cannot pass over a filibuster unless 60 senators join together to invoke cloture. That means that unless Democrats win an absolutely crushing majority in November — they would have to gain 13 seats in the Senate, a nearly impossible feat — Republicans will be able to block nearly any voting rights bill through the filibuster.

Unless, of course, the filibuster is eliminated, something the Senate could do at any time with just 51 votes.

If Republicans were to use the filibuster to stop legislation expanding voting rights, they would join a long and inglorious tradition of illiberal senators filibustering civil rights legislation. From 1875 until 1957, Congress did not enact a single civil rights bill, even as Jim Crow flourished in the South.

Congress could not even pass civil rights legislation that enjoyed majority support. Between the end of World War II and 1957, when a modest bill finally became law, the House passed five civil rights bills. But white supremacist senators were able to block each of these five bills using the filibuster.

It took Democrats more than four agonizing years to realize just how severely the filibuster had hobbled their ability to govern while Obama was president, and even then they made only modest reforms to the filibuster — allowing most presidential nominees to be confirmed with just 51 votes but leaving the legislative filibuster largely intact.

Indeed, just a few years ago, much of the Democratic caucus appeared committed to maintaining the filibuster. In April 2017, Sens. Chris Coons (D-DE) and Susan Collins (R-ME) organized a letter calling on Senate leadership to “preserve existing rules, practices, and traditions” that allow senators to filibuster legislation. More than two dozen Democrats joined this letter, and a total of 61 senators signed it.

And yet, even Coons — once one of the Senate’s most outspoken opponents of eliminating the filibuster — is now singing a different tune. “I will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn,” Coons told Politico in June. “I am gonna try really hard to find a path forward that doesn’t require removing what’s left of the structural guardrails, but if there’s a Biden administration, it will be inheriting a mess, at home and abroad. It requires urgent and effective action.”

Likewise, presumptive Democratic presidential nominee Joe Biden recently signaled support for eliminating the filibuster if Senate Republicans are too “obstreperous.”

There is a very real chance, in other words, that the incoming Senate will have 51 votes to eliminate the filibuster — or to at least pare it back sufficiently to allow voting rights legislation to become law. If Democrats do win control of the federal government, the chances of such law becoming a reality will almost certainly hinge on whether Senate Democrats are willing to target the filibuster.