ANALYSIS — It’s all but inevitable now that a confrontation is coming over the filibuster. And Democrats laid out their case in sharp relief this past week, arguing that the current 60-vote threshold for passage of most Senate legislation enables racism.
When Majority Whip Richard J. Durbin became the first Democratic party leader to advocate changing the rules to require a filibustering senator to hold the floor, he began with an example that tied the obstruction tactic directly to America’s long resistance to racial equality.
Durbin told the story of the 24-hour speech delivered by Strom Thurmond, then a Democratic senator from South Carolina, to delay passage of a civil rights law in August 1957. His point, Durbin said, was to illustrate how the filibuster was used “to defend Jim Crow racial discrimination and deny equality to African Americans.”
On the one hand, the connection between Thurmond’s one-man crusade and the current Senate’s problem — a rigidly partisan 50-50 split — seemed tangential. Thurmond had held the floor after all. And while Thurmond lost in the end, that would have been the case under current rules too. The 1957 law had broad bipartisan support and the Senate passed it on a 72-18 vote shortly after Thurmond gave up, in agony and exhaustion. Today, the problem is how hard it is to assemble such bipartisan coalitions.
Still, Durbin’s intention in recalling Thurmond’s filibuster was buttressed two days later when Senate Majority Leader Charles E. Schumer made the case for a sweeping election law, campaign finance and ethics bill that is sure to die absent a change to the filibuster procedures, which allow 41 senators to block debate with no need for anyone to stand and speak.
Schumer recalled the ghosts of Thurmond. “Throughout America’s history, we’ve seen a continuous cycle of expansions in our democracy being met all too often by vehement backlash against those who wish to maintain an exclusionary status quo,” the New York Democrat said.
Schumer then flew into a rage, as he pointed to GOP-controlled states that are moving to limit their citizens’ ability to vote by mail or to cast ballots on days before Election Day. “These bills, sadly, are aimed at Americans of color,” he said. “Efforts to target these historically disenfranchised communities have become a central component of the electoral strategy of one of America’s major political parties. Shame on them. Shame.”
The message could not have been clearer: If Republicans try to preserve the filibuster, Democrats will call them out as racists.
Durbin’s and Schumer’s speeches came a week after their fellow Democratic senator, Joe Manchin III of West Virginia, said on “Fox News Sunday” that he was open to making it “more painful” for the minority party to filibuster, and they coincided with an ABC News interview with President Joe Biden in which Biden said he would support a return to the “talking filibuster” of yore. Those were crucial concessions from two people Republicans had hoped would join them in resisting any such change.
Ironically, Democrats are contemplating weakening the filibuster at a time when they are also arguing that everything is going swimmingly in the Senate. Schumer recently called his first two months in charge “extremely productive,” noting the chamber had made quick work of an impeachment trial, would soon have Biden’s Cabinet in place and had passed the “most significant federal recovery effort in decades.”
But even if Democrats are able to fit a lot into a second bill this year that can’t be filibustered under expedited-budget procedures, which they intend to use to boost infrastructure spending, House-passed bills are starting to stack up. Foremost among those is HR 1, the elections, campaign finance and ethics bill that is subject to the 60-vote threshold, along with measures to overhaul police practices, expand background checks for gun sales, make it easier for labor unions to organize and broaden civil rights protections for LGBTQ people.
Senate Minority Leader Mitch McConnell said that if Democrats move against the filibuster, Republicans would shut down the Senate by denying Democrats the quorum of 51 senators they need to conduct business. “Even the most basic aspects of our colleagues’ agenda, the most mundane tasks of the Biden presidency, would actually be harder,” the Kentucky Republican said.
That raised the possibility that Schumer could order the Senate’s sergeant-at-arms to bring recalcitrant Republicans to the floor by force, as Majority Leader Robert C. Byrd did in 1988 when he needed a quorum to bring up a campaign finance measure. Byrd got his way when Oregon Republican Bob Packwood was carried from his office.
Durbin noted the frustration driving Democrats, raising the dim prospects facing his bill to grant a path to citizenship for immigrants who were brought to the United States illegally when they were children.
The Senate passed that measure on a bipartisan 68-32 vote just eight years ago, only to see it die in the GOP-controlled House, but Durbin apparently doesn’t see room for a deal now.
The same year, 2013, a bipartisan gun background check measure, sponsored by Manchin and Pennsylvania Republican Patrick J. Toomey, won a majority but failed to get past the Senate’s filibuster threshold partly because four Democrats voted against it. Last year, the Senate fell five votes short of 60 on a policing measure sponsored by South Carolina Republican Tim Scott.
That Schumer would choose to test McConnell rather than pursue these past bipartisan efforts indicates just how inflexible politics has become on Capitol Hill, and how Democrats see political gain in taking a stand on the filibuster.
Democrats see their best shot at beating the odds in the 2022 midterm elections, and either maintaining or expanding their majorities, by keeping their coalition of progressive whites and minority voters engaged.
While Democrats’ share of the former grew in the 2020 presidential race, their share of the minority vote shrank. Donald Trump took 12 percent of African American ballots, up from 8 percent in 2016, and 32 percent of the Latino vote, also 4 points higher than he did in his victory over Hillary Clinton.
Democrats plan to use their elections bill, which would require states to permit early and mail-in voting and, for states with voter ID laws, to accept a sworn statement in lieu of an ID card, and the coming fight over the filibuster, to appeal to minority voters.
But only time will tell if it resonates. A Pew Research Center survey taken just after the election raises doubts. It found that 60 percent of Black voters said the balloting had been run very well, along with 29 percent who said it had been run somewhat well. A plurality of Latinos, 38 percent, said it was run very well, with 29 percent in the “somewhat well” camp.