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A Case for Getting Rid of the Filibuster

Elections and Politics Policy Brief # 26 | By: Ryan Campbell | August 20, 2021

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Policy Summary

After recent Supreme Court rulings against the Voting Rights Act, many want to pass new voter rights laws, however, the path is blocked by the filibuster.

The filibuster is a political procedure in the US Senate (as well as other governmental bodies) where a Senator or Senators may speak for as long as they want on any topic that they choose (i.e. Senator Ted Cruz (R-TX) once filibustered by reading from Green Eggs and Ham).  This will allow the party (or individual) to essentially run out the clock and deny the party moving in favor of the legislation an opportunity to ever have said legislation voted on.  This can only be broken if 60 senators vote for “cloture,” or a motion to bring debate to an end. 

A cloture motion can only be used for budgetary matters, and so does not apply to every bill.  Should this threshold not be met and cloture not be available, any Senator objecting to the legislation could bring the business of the Senate to a halt by invoking the filibuster, never allowing a vote on the legislation to happen. 

This occurs in an age when laws can be increasingly tailored to look nondiscriminatory on the surface, but in reality be sophisticated attempts to undermine voting in indirect ways.  This can be most clearly seen in the issue of the “poll tax.”

Considering how a vote on voter rights legislation would not be eligible for cloture and would be all but impossible to get around a filibuster in these divided times, the only realistic way of preventing continued voter discouragement is by doing away with the filibuster.

Policy Analysis

Currently, the hottest topic in legislation is essentially building on the Voting Rights Act, a law which has been drastically weakened recently by the Supreme Court.  This law was previously used to prevent discrimination, and after the Supreme Court weakened the Voting Rights Act by removing “pre-clearance,” the US saw a wave of laws passed that would have previously have gone through a rigorous Justice Department test.

This weakening happened in two recent cases where Arizona law banned the collection of absentee ballots by anyone other than a relative or caregiver and threw out any ballots cast in the wrong precinct.  The question of enforcing the Voting Rights Act came before the Supreme Court, and the Court held that states with a  history of discrimination no longer had to get advanced clearance from the Justice Department for changes in how their elections are run.

Photo taken from: Georgia Recorder

The filibuster has a long history of being the result of a race to the bottom of those who are the last holdouts against civil rights: it lets one Senator take the heat, often on an issue wouldn’t affect them, and the rest of the Senators in their party to not deal with the issue.  Although the filibuster is, as lawyers would call, “facially neutral” (that is, not intended to benefit or hinder a group within the language of the law) the way in which it has been used has been incredibly slanted against civil rights. 

The filibuster has a long history of being the result of a race to the bottom of those who are the last holdouts against civil rights: it lets one Senator take the heat, often on an issue wouldn’t affect them, and the rest of the Senators in their party to not deal with the issue.  Although the filibuster is, as lawyers would call, “facially neutral” (that is, not intended to benefit or hinder a group within the language of the law) the way in which it has been used has been incredibly slanted against civil rights. 

A particularly relevant example of a facially neutral law would be the “poll tax.”  A poll tax, which began in the 1890’s, was a way to use the law to keep Black voters from voting essentially as a voting fee.  There would often be carve outs to allow poor southerners (and these laws were typically in the part of the South that would later be covered by the Voting Rights Act) to still vote.  This would include clauses that grandfathered in anyone who had voted before the Civil War, which, while again facially neutral, heavily discriminates against Blacks who were enslaved and not registered to vote prior to the Civil War.

Photo taken from: Eisenhower Presidential Library

As an example of how a facially neutral procedure is used to cover facially neutral laws, the record holder for longest filibuster, made at a time when you had to be on your feet speaking the entire time, was South Carolina Senator Strom Thurmond.  He was filibustering the Civil Rights Act of 1957, a law that has become a cornerstone of American civil rights legislation. 

States are still continuing to pass restrictive voting laws, and there seems to be no change in the stances in the Senate to allow for updated voter rights legislation to be passed.  With mounting political pressure to act and the near certainty of a filibuster in the senate, the question now is whether voter rights legislation will be the pressure needed to attempt to change or do away with the filibuster.

A particularly relevant example of a facially neutral law would be the “poll tax.”  A poll tax, which began in the 1890’s, was a way to use the law to keep Black voters from voting essentially as a voting fee.  There would often be carve outs to allow poor southerners (and these laws were typically in the part of the South that would later be covered by the Voting Rights Act) to still vote.  This would include clauses that grandfathered in anyone who had voted before the Civil War, which, while again facially neutral, heavily discriminates against Blacks who were enslaved and not registered to vote prior to the Civil War.

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