Filibuster Reform Seen Crucial for Voting Rights Bill

If Democrats in the U.S. Senate manage a carve-out of the filibuster rule to allow passage of the John Lewis Voting Rights Advancement Act, it would be poetic justice given that the rule has most famously been used to block civil rights laws, according to Adam Jentleson, author of Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. 

Jentleson spoke recently via Zoom for our Chicago in Focus event “Fix or Nix the Filibuster.” The event was the first this year in the discussion series, cosponsored by the League of Women Voters of Chicago and the Union League Club. Watch the program recording.

Jentleson lauded the League of Women Voters of the United States for its recent expanded call for reform of the filibuster in light of challenges to voting rights throughout the U.S. LWVUS’ action “puts it in good company, including the framers of the Constitution,” he said. Despite the “received wisdom” that the filibuster is part of the Constitution, Jentleson noted that the framers were concerned about protecting minority views, encouraging compromise and consensus, but not at the expense of the will of the majority. 

“There is no ambiguity about this,” said Jentleson, a policy researcher and former deputy chief of staff to Henry Reid (D-Nev). The filibuster, a term that wasn’t even in use until the 1850s, was not written into the Constitution and was not intended by the framers, who worried that extended debate on an issue would create gridlock. 

During the process of writing the Federalist Papers, the framers were “very much against a super majority threshold.” And for more than 200 years, the rule that permitted the filibuster went unused. “For its entire history, from the founding to the 1960s, the Senate was a majority rule institution” with the exception of civil rights legislation. 

Jentleson detailed the long and tangled history of the filibuster and the notion of a super majority for the passage of laws, noting the political machinations behind the use of the filibuster.

Southern senators used the Senate Rule 22 to block anti-lynching and anti-poll tax legislation for decades. President Johnson outmaneuvered opponents to push through civil rights legislation despite virulent objection by southern senators. More recently, Senate Republicans used the filibuster to block President Barack Obama’s legislative agenda. To push through judicial appointments, both parties have used carve-outs, exceptions that require only a majority vote.

Jentleson asserted that getting rid of the filibuster is essential to democracy. Responding to concerns that the filibuster has been strategically used to block judicial appointments that progressives have viewed disfavorably, Jentleson acknowledged that either side may find advantage in the occasional use of the filibuster.

Because both sides can use it for good or ill, Jentleson thinks that reform is inevitable and is encouraged by recent comments by President Biden in favor of reform, something considered crucial to passage of voter support legislation in the current political climate. Beyond Biden’s change of heart, Jentleson is encouraged by remarks by Sen. Krysten Sinema (D-Ariz) in favor of a minimum corporate tax rate. Sinema and Joe Manchin (D-WVa) have been hold-outs on the Democratic legislative package, threatening the ability of Democrats to get a majority vote in the Senate.

Sinema’s softening on corporate taxes shows that pressure works, said Jentleson. He advised League members to apply pressure to senators in support of voting rights legislation and, for those who are already supporters, to ask that they advocate on behalf of the legislation. 

As for the filibuster, given the occasional carve-outs and the current political polarization, Jentleson thinks it’s very likely on its way out. “It’s just a matter of who does it.” 

Reform would only require a majority vote. “It’s a simple answer to a hard problem,” he said. But getting the votes is difficult. “When in power, you do what you can to secure as much as you can for the things you believe in because you don’t know what the future holds.”