Senate's Capitol commission vote highlights Manchin's filibuster ignorance

May 28, 2021

UPDATE (May 28, 2021, 12:30 p.m.): On Friday, 35 Senate Republicans voted against opening debate on an independent bipartisan commission to investigate the Jan. 6, 2021 attack on the U.S. Capitol, effectively killing the commission. It was the first filibuster of this year.

As Senate Republicans line up to block a bipartisan commission to investigate the Capitol insurrection, it seems increasingly likely that they will use the filibuster to prevent passage of the measure.

A “filibuster,” in the language of the day, was a plunderer or a pirate.

Democrats could do away with this resistance with a simple party-line vote to end the filibuster, but they have been hamstrung by the stubborn resistance of Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.

Manchin, asked Thursday whether he might finally vote to end the filibuster if Republicans used it to block the commission, responded reflexively: "I'm not willing to destroy our government, no."

But the senator has it exactly backward — it is the filibuster that is destroying our government.

The Founding Fathers, who designed Congress to be run on simple majorities, would have seen the filibuster as a perversion of their vision for the Senate. Despite recent claims about its centrality in the Senate's working, the filibuster was not a product of the founders' work, and it has never been enshrined in the Constitution. It came about after the fact, largely by accident, enabled by a loophole in the Senate's rules and a willingness of some members to exploit it.

The name given to the new practice in the mid-19th century showed what contemporary Americans thought of it at the time. A "filibuster," in the language of the day, was a plunderer or a pirate. Those who employed the newly invented scheme to block legislation and prevent progress in the Senate were seen, metaphorically, as exactly that — pirates who had hijacked the legislative chamber and steered it to their own ends.

Half of all successful filibusters between 1917 and 1994 were employed to block civil rights measures.

We only need to look at the senators who used the filibuster most often to understand why that word was so well-chosen.

The most prominent champion of the filibuster in the 19th century was Sen. John C. Calhoun, D-S.C. An outspoken defender of slavery, Calhoun advanced a number of novel constitutional rationales and legal propositions to protect, preserve and expand the enslavement of African Americans. His most famous measure, the theory of "nullification," the idea that states could effectively opt out of national developments they didn't like, set the stage for secession and the Civil War (and, in a few years, the creation of Manchin's state of West Virginia).

Before that cataclysm, Calhoun was instrumental in introducing and institutionalizing the filibuster. Taking advantage of the Senate's rules, which then allowed for virtually unlimited debate, he repeatedly stole the Senate's time and energy, like a pirate, to prevent passage of any legislation that threatened the ability of his fellow Southern whites to keep men, women and children in chains.

Not surprisingly, Calhoun's political heirs in the 20th century — segregationist Southern Democrats — followed his lead. They cribbed his discredited theories of "nullification" with their own theories of "interposition," in which they, too, claimed that states had a right to opt out of federal mandates, referring here to court decisions like Brown v. Board of Education.

But segregationists also copied Calhoun's use of the filibuster, which they employed with even greater regularity and ruthlessness.

Ellender wasn’t alone in using the filibuster to fight for white supremacy.

To give just one example of many, when anti-lynching legislation advanced to the Senate in 1937 after a horrific wave of bloody murders and graphic mutilations in the South, Southern Democrats banded together to filibuster the bill for six straight weeks. "I believe in white supremacy!" Sen. Allen Ellender of Louisiana shouted, "and as long as I am in the Senate, I expect to fight for white supremacy!"

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Ellender wasn't alone in using the filibuster to fight for white supremacy. According to one study, half of all successful filibusters from 1917 to 1994 were employed to block civil rights measures. The filibuster's frequent use by segregationists has increasingly led observers, including former President Barack Obama, to denounce it as a "Jim Crow relic."

There's nothing inherently racist in the filibuster itself, of course. But racists regularly relied on it. And they did so precisely because it reflected their underlying belief that America was not a true democracy and, more important, because it enabled them to ensure that America did not become a true democracy.

Defenders of slavery and defenders of segregation refused to accept any compromise when it came to the fight for white supremacy; naturally, they used the legislative tool that was designed to prevent compromise. Like pirates, they commandeered the political system, held its regular order hostage and demanded that everyone else, no matter how large the majority, bend to their minoritarian demands. They were willing to break our government to get their way, and the filibuster afforded them the chance.

Today, the filibuster stands in the way of an investigation into the insurrection, when an unruly mob invaded the Capitol and threatened our government, including members of the Senate itself. If that body cannot back a bipartisan commission to explore the causes and costs of that insurrection, then it will be clear that our government is in worse shape than we might think. It will be well on its way to destruction, and the filibuster — and the senators who defend it at all costs — will be to blame."

Senate's Capitol commission vote highlights Manchin's filibuster ignorance