Democracy, Voting Rights and the Filibuster

Twelve years ago I wrote a piece for the Nieman Watchdog chastising my former news colleagues for laziness in writing that it took 60 votes to pass a bill in the Senate. My point was that by writing that, rather than saying it took 51 votes to pass a bill, they were misleading readers. Then, as now, it takes 60 votes to bring most bills to the floor of the Senate to then vote for their passage.

I went on to say that because of Senate rules, 41 senators could—-and still can—-defeat a bill by voting against ending—-or threatening to end—-debate on the bill. And, by the way, those senators might represent no more than 12 percent of the American population.

Now, thanks to pressure from an informed citizenry, a movement in the Senate to abolish, or change the rules concerning, the filibuster, the media now sometimes explain why it takes 60 votes.

I’m happy about that turn of events, but now I want to talk about the filibuster itself. Remember that our vaunted Founding Fathers provided for a bicameral legislature so that more populous states would get more representation in the House of Representatives and smaller states would get equal representation in the Senate. There was also something about the Senate being the saucer to cool the hot coffee coming from the House, and also protecting the institution of slavery.

So smaller states already have equality with larger states because of the makeup of the Senate. The existence of the filibuster, which was neither considered nor included in the Constitution, gives them more power.

Minority rights should be protected, of course, but that gets me to the larger point. Which minority’s rights? It’s no secret that Republicans have undertaken a campaign to “reform” election procedures to eliminate nonexistent “fraud” in our elections. Another way of putting it is that Republicans want to make it more difficult to vote for African Americans and other persons of color, along with poorer Americans. And the United States Senate with the filibuster in play is the first line of defense.

Back in the good old days of the 1970s through the 1990s and perhaps a little beyond, the Supreme Court could be counted on to uphold the power of the federal government, under the 1965 law, to block attempts to deny voting rights to whole classes of citizens. Those days are gone thanks to a change in the makeup of the court. It’s not even clear that if Congress were to pass legislation to protect expanded voting rights against the contrary efforts of states that the Supreme Court would uphold the legislation.

For those of us who lived through the Civil Rights Movement back in the ’60s there’s more than a little touch of deja vu to all of this. People died to secure voting rights for American citizens who happened to be black. Passage of the Voting Rights Act in 1965 went a long way toward transforming politics in the South. Access to the franchise has been an issue in American politics for more than a century. After Reconstruction, southern Blacks were denied the right to vote by a variety of measures. In the late 19th Century, when immigration surged, the Democratic Party opened its arms to new immigrants and fought with Republicans over making the franchise widely available.

John C. Calhoun of South Carolina was instrumental in introducing the filibuster to the Senate before the Civil War as a tool to prevent legislative attempts to curb slavery. Now, with Republicans taking over the obstructionist role played for decades by southern Democrats, the filibuster is again an essential weapon in the GOP’s quiver to prevent measures that would increase the power of Democrats.

Foregoing the obstructive potential that the filibuster gives both parties holds dangers for both, which is one reason why it’s stayed around as long as it has. Democrats, as well as Republicans, have employed the filibuster–or more recently the threat of it–to block legislation they consider obnoxious. And anything that can be enacted by a simple majority can be revoked by a simple majority. As Maine’s Sen. Angus King wrote in The Washington Post, “. . . as succeeding Congresses swing dramatically between opposing ideological visions, so, too, would our laws. The Affordable Care Act could be eliminated or crippled, Medicare voucherized, social lifeline programs gutted or environmental protections compromised —-only to have these policies reversed a few years later by a change in a handful of seats.” That’s one argument for maintaining the requirement of a super majority to do anything.

But the unimpeded right to vote is fundamental to democracy. Do we want to permit states to discriminate against an identifiable group that already, with justice, sees itself suffering from unequal treatment? If African Americans can’t improve their situation peacefully at the polls, where would the blame lie if they took to the streets to state their grievance? Do we really want to prolong the  all too apparent racial divisions in America? How do we maintain the idea that we are a nation of laws, not men (persons) if the laws are unfair and discriminatory? Where is the fairness in giving a small minority the right to restrict a fundamental right of another minority? If we were sensible, we would want everyone to believe that they had equal access to power—naive as that may sound.

I don’t have a solution, but I do believe that until we can find a way around the filibuster and a way to convince the Supreme Court that the intent of these restrictive laws is to prevent certain groups from voting, our democracy remains imperiled.

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