The filibuster was never the great tool to encourage bipartisan cooperation that its supporters in Congress profess it to be. Even Alexander Hamilton, in The Federalist Papers, saw that.
Though empowering small minorities to thwart decision-making was hailed as an instrument to protect minority interests, Hamilton wrote of its use in Congress under the Articles of Confederation: “[I]ts real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”
He added: “The public business must, in some way or other, go forward.”
The same is true today — particularly with crucial voting rights legislation at stake that would, among other things, stop state-level voter suppression efforts, expand access to the polls, and end partisan gerrymandering. And Republican senators have made clear they’ll use the filibuster — which requires 60 votes to end debate on a bill in order to send it to a vote — to kill it.
What should die is the filibuster itself, a vestige of efforts by senators from Southern states to block crucial civil rights legislation, and which nearly defeated the Civil Rights Act of 1964. But that might not be possible in today’s Senate, with some Democrats still opposed to eliminating it. At the very least, given its history of obstructing progress for members of marginalized communities, Senate Democrats should carve out an exception that keeps members of the minority party from using the filibuster as a tool to stop civil rights legislation, much as exceptions already exist for presidential nominations and certain budgetary matters. Even Democratic senators like Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who want to protect the filibuster in principle, could have a harder time rejecting an exception for civil rights bills without facing consequences from their constituents when they’re up for reelection.
Tuesday, Senate minority leader Mitch McConnell took to the floor to display the same type of obstruction that Hamilton condemned 233 years ago. If the Democrats try to end the filibuster, McConnell warned, it would lead to “a completely scorched-earth Senate,” in which Republicans would use every procedural tool at their disposal to mire legislation in endless gridlock.
Meanwhile, crucial civil rights bills await Senate attention. Those include not just voting rights legislation but also bills to protect LGBTQ people from discrimination in jobs and public accommodations and to implement crucial reforms to counter racial profiling and boost accountability in policing. They could all be thwarted if enough members of the minority block them from going to a vote.
Most Democrats seem to realize that the filibuster has only been effective as a hammer to defy the will of the majority of the upper chamber as well as the majority of the American public. Even President Biden this week softened his previous opposition to changing filibuster rules.
“I don’t think that you have to eliminate the filibuster, you have to do . . . what it used to be when I first got to the Senate back in the old days,” Biden said in an ABC News interview Tuesday. “You had to stand up and command the floor, you had to keep talking.”
Biden’s change in position is welcome, but his solution is flawed. Republicans have shown no compunction about using long-winded political stunts in the name of partisan opposition, from Texas Senator Ted Cruz reading “Green Eggs and Ham” in a bid to stop a vote on Obamacare, to Kentucky Senator Rand Paul’s 13-hour effort to delay CIA Director John Brennan’s confirmation. McConnell’s own move to block Obama’s final Supreme Court nominee, now-Attorney General Merrick Garland, shows that if there is a way to obstruct, GOP senators will find it.
Rashawn Ray, a governance studies fellow at the Brookings Institution and a professor at the University of Maryland, College Park, said creating a filibuster exception for civil rights bills would be especially appropriate given the Senate’s history of using the filibuster to block them.
The narrative that the filibuster is a tool to protect minority views and encourage bipartisanship, embraced by Republicans and even Democrats like Manchin and Sinema, belies its true allure as a tool of obstruction.
“If we look over the past couple of decades, (Republicans) have overwhelmingly been in the minority when it comes to the popular vote,” Ray said. “So in the Senate, with their control of states with lower populations that are conservative and majority white and rural, the filibuster is a way for them to connect with their voters to say: ‘Look, you put us in office, it might not be a lot that we can get done, but we’re not going to let them get things done either.’ ”
The stakes are too high for political games. The filibuster must no longer be allowed to stand in the way of progress.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.