RSN: FOCUS: Robert Reich | The Filibuster Is Unconstitutional

 

09 September 21

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FOCUS: Robert Reich | The Filibuster Is Unconstitutional
Robert Reich, Robert Reich's Blog
Reich writes: "41 Senate Republicans, who represent only 21 percent of the American population, are blocking the 'For the People Act,' which is supported by 67 percent of Americans."

You’ve probably been hearing a lot about the filibuster these days. But here’s one thing about this old Senate rule you might not know: the filibuster actually violates the Constitution.

41 Senate Republicans, who represent only 21 percent of the American population, are blocking the “For the People Act,” which is supported by 67 percent of Americans. They’re also blocking an increase in the minimum wage to $15 an hour, supported by 62 percent of Americans. And so much else.

Even some so-called moderate Democrats, like Joe Manchin and Krysten Sinema, have outsized power to block crucial legislation thanks to the filibuster.

Many of those who defend the filibuster consider themselves “originalists,” who claim to be following the Constitution as the Framers intended.

But the filibuster is not in the Constitution. In fact, the Framers of the Constitution went to great lengths to ensure that a minority of senators could not thwart the wishes of the majority.

After all, a major reason they called the Constitutional Convention was that the Articles of Confederation (the precursor to the Constitution) required a super-majority vote of nine of the thirteen states, making the government weak and ineffective.

James Madison argued against any super-majority requirement, writing that “the fundamental principle of free government would be reversed,“ and “It would be no longer the majority that would rule: the power would be transferred to the minority.”

Alexander Hamilton, meanwhile, warned about “how much good may be prevented, and how much ill may be produced” if a minority in either house of Congress had “the power of hindering the doing what may be necessary.”

Hence, the Framers required no more than a simple majority vote in both houses of Congress to pass legislation. They carved out specific exceptions, requiring a super-majority vote only for rare, high-stakes decisions:

Impeachments.

Expulsion of members.

Overriding a presidential veto.

Ratification of treaties.

Constitutional amendments.

By being explicit about these exceptions where a super-majority is necessary, the Framers underscored their commitment to majority rule for the normal business of the nation.

They would have balked at the notion of a minority of senators continually obstructing the majority, which is now the case with the filibuster.

So where did the filibuster come from?

The Senate needed a mechanism to end debate on proposed laws, and move laws to a vote — a problem the Framers didn’t anticipate. In 1841, a small group of senators took full advantage of this oversight to stage the first filibuster. They hoped to hamstring the Senate and force their opponents to give in by prolonging debate and delaying a vote.

This was what became known as the “talking filibuster” as popularized in the film Mr. Smith Goes to Washington. But the results were hardly admirable.

After the Civil War, the filibuster was used by Southern politicians to defeat Reconstruction legislation, including bills to protect the voting rights of Black Americans.

In 1917, as a result of pressure from President Woodrow Wilson and the public, the Senate finally adopted a procedure for limiting debate and ending filibusters with a two-thirds vote (67 votes). In the 1970s, the Senate reduced the number of votes required to end debate down to 60, and no longer required constant talking to delay a vote. 41 votes would do it.

Throughout much of the 20th century, despite all the rule changes, filibusters remained rare. Southern senators mainly used them to block anti-lynching, fair employment, voting rights, and other critical civil rights bills.

That all changed in 2006, after Democrats won a majority of Senate seats. Senate Republicans, now in the minority, used the 60-vote requirement with unprecedented frequency. After Barack Obama became president in 2008, the Republican minority blocked virtually every significant piece of legislation. Nothing could move without 60 votes.

In 2009, a record 67 filibusters occurred during the first half of the 111th Congress — double the entire 20-year period between 1950 and 1969. By the time the 111th Congress adjourned in December 2010, the filibuster count had ballooned to 137.

Now we have a total mockery of majority rule. And it bears repeating that just 41 Senate Republicans, representing only 21 percent of the country, are blocking critical laws supported by the vast majority of Americans.

This is exactly the opposite of what the framers of the Constitution intended. They unequivocally rejected the notion that a minority of Senators could obstruct the majority.

Every time Republicans use or defend the filibuster they’re directly violating the Constitution — the document they claim to be dedicated to. How can someone profess to be an “originalist” and defend the Constitution while repeatedly violating it?

Senators whose votes have been blocked by a minority should have standing to take this issue to the Supreme Court. And the Court should abolish the filibuster as violating the U.S. Constitution.

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My op-ed on the future of our democracy

 

On this day 56 years ago, President Lyndon Baines Johnson signed the 1965 Voting Rights Act into law, expanding the right to vote to tens of millions of disenfranchised Americans and setting our country on a path toward establishing its first true multiracial democracy.

That momentous win for democracy and voting rights happened because people protested, sacrificed, and put their lives on the line to engage the conscience of the nation, and because President Johnson was willing to use the full force of his office to pass federal voting rights legislation.

Today, as we face a weakened Voting Rights Act, and as state legislatures across the country erect new barriers to the ballot box, it’s going to take another historic movement and strong leadership from President Biden to pass new federal voting rights legislation and save our democracy before it’s too late.

I have shared below an op-ed I authored for CNN that expresses my hope that President Biden will rise to the occasion to pass the For the People Act — and why I believe Texas will be central to the fight to save our democracy.

You can also find the op-ed here.

I hope you’ll take a few minutes to read it,

Beto

 

***

There have been three critical moments where Texas has proved decisive for democracy and voting rights in this country. The first two, in 1890 and 1965, afford us key insights into how we can make the most of the third one — taking place right now.

After Reconstruction, states throughout the South were rife with White supremacist terrorism, racial injustice and attacks on Black voting rights — and by the late 19th century, Texas was among the most brutal. Whites-only Democratic clubs and their armed militias had "purified" the ballot box in one Texas county after another. Political violence, assassinations and lynchings enforced White rule throughout much of the state at the expense of Black lives and Black voting rights.

In the Washington County election of 1886, for example, ballot boxes in Black precincts were stolen at gunpoint by agents of a Whites-only political ring known as the "People's Party." When Black poll workers dared to fight back at one of the precincts, they were arrested, and three of them — Shad Felder, Alfred Jones and Stewart Jones — were lynched by a mob. No one was ever brought to justice.

The national outrage this produced compelled Congress to hold hearings on the troubled voting practices that plagued Texas and much of the South. The resulting Federal Elections Bill of 1890 promised greater federal intervention to protect the right to vote in any state where it was threatened.

Like the Democratic Party today, the Republican Party of 1890 had recently won majorities in the US House and Senate, and, with the election of Benjamin Harrison in 1888, controlled the presidency, too. And like today's Democratic Party, those Republicans publicly resolved to use that power to secure voting rights, especially for the Black targets of voter suppression efforts in the South. The Federal Elections Bill duly passed the House of Representatives that year and debate on its passage soon began in the Senate.

But unfortunately for that bill and for millions of Black Americans, the Senate Republicans were unable — or perhaps unwilling — to overcome a filibuster threat led by the Democrats. It didn't help that Harrison, who had campaigned on a platform of restoring voting rights, remained on the sidelines for much of the action.

So, after all the righteous indignation over the election outrage in Texas had been spent, the majority party meekly gave up the fight for voting rights. They blinked in the face of the filibuster and denied America the chance to establish a true multiracial democracy.

In the aftermath, state legislatures throughout the former Confederacy imposed Whites-only primary laws and additional forms of Jim Crow voter suppression, including poll taxes, literacy tests and extraordinary residency requirements (all of which Whites could bypass thanks to the "grandfather clause" that exempted those whose grandfathers had been registered voters).

It took 75 years, a relentless voting rights movement and the first president from Texas to provide another opportunity to reestablish the right to vote in the South. Soon after Congress passed the Civil Rights Act of 1964, civil rights leaders like Dr. Martin Luther King, Jr. pressed President Lyndon B. Johnson to work on an accompanying voting rights bill. After Johnson told activists that he just didn't have the power to move Congress, King resolved to "get the President some power."

Over the following months, civil and voting rights leaders brought the issue to the forefront of the national conversation. Through protests and marches, direct action and extraordinary courage, they successfully engaged the conscience of the country. And when John Lewis was beaten within an inch of his life leading a march from Selma to Montgomery on March 7, 1965, Johnson finally had the power he needed.

Just eight days after Bloody Sunday, the President convened a joint session of Congress and told the assembled members that no other issue was as important as securing the country's democracy. "Should we defeat every enemy, should we double our wealth and conquer the stars, and still be unequal to this issue," he said, "then we will have failed as a people and as a nation."

As far as Johnson was concerned, no short-term political interest would compromise the intensity of this fight for the most important of American rights. By using the full power of the presidency, he helped move Congress to pass the Voting Rights Act on August 5, 1965 and signed it into law the next day.

As long as the law stood, states would be forced to tear down barriers to the ballot box and guarantee equal voting access to every eligible American.

But it turned out that the law could not stand forever.

When the US Supreme Court stripped critical protections from the Voting Rights Act in its 2013 Shelby County v. Holder decision, Southern legislatures responded in much the same way that they did following the end of Reconstruction and the defeat of the Elections Bill of 1890: they moved to dramatically restrict the ability to vote. This time, voter suppression would come in the form of new voter ID laws, polling place closures and racially gerrymandered districts designed to reduce the voting power of Black and minority voters, the poor, the very young and the very old.

This anti-democratic movement aggressively metastasized following former President Donald Trump's Big Lie about widespread election fraud in the 2020 election. In just the first six months of this year, more than a dozen states enacted new laws to make it easier to restrict access to the ballot box.

In Texas, the Republican-led legislature's voter suppression bill was bad enough for Democratic lawmakers to leave the state for Washington, D.C. in an effort to block its passage and plead for federal action in the form of the For the People Act.

Much like the Federal Elections Bill of 1890, the For the People Act's provisions are commensurate with the scope of the current threat to American democracy. The bill would ensure equal access to early voting and mail-in voting, establish automatic voter registration, make election day a national holiday and end gerrymandering (redistricting used to "draw" people of color out of voting power in states like Texas). In March, the House passed the For the People Act on a party-line vote, just like with the 1890 elections bill.

But the For the People Act has been stopped by the threat of a filibuster in the Senate, in a manner quite similar to the 1890 elections bill. Though Democrats have the power to overcome this procedural vestige of segregation, they have been paralyzed by intra-party disagreements and an unwillingness to take seriously the challenges faced by Black and brown voters. Their inaction risks dooming the bill to failure.

That defeat doesn't have to be America's fate.

Just as civil rights leaders and everyday Americans successfully pushed Johnson to use the power of his office to pass voting rights, we can do the same to push President Joe Biden to make voting rights his number one priority — and to place all of his political capital into urging the Senate to carve out an exception to the filibuster. (Exceptions already exist for federal judges, Supreme Court justices, budget deals and fast-track trade agreements.)

Those Texas Democratic legislators who took the fight to the nation's capital are pushing the President to do just that. Their quorum break, which will end on August 6, exactly 56 years after the signing of the Voting Rights Act of 1965, has bought us some time to save free and fair elections before it's too late.

The question is, what will the President do with it?

Biden is certainly no Harrison, who campaigned for office on a platform of voting rights but then allowed the matter to languish once in office. In fact, Biden gave an extraordinarily powerful speech in Philadelphia earlier this month, describing in the starkest of terms the existential threat our democracy faces. If he follows that up by using the tremendous power of his office to help change the rules of the filibuster to save our democracy, he will stand alongside Johnson as a champion and savior of American democracy.

But he must take to heart the lessons of Texas: when we fight for the right to vote, we can expand democracy to include everyone. But when we give up without a fight, we can lose democracy itself.

Op-Ed in CNN: https://www.cnn.com/2021/07/30/opinions/joe-biden-texas-voting-rights-lesson-orourke/index.html

Photo 1: U.S. Library of Congress
Photo 2: Bettman Archive/Getty Images

RSN: FOCUS: Ezra Klein | The Rest of the World Is Worried About America

 

 

04 July 21

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FOCUS: Ezra Klein | The Rest of the World Is Worried About America
Ezra Klein, The New York Times
Klein writes: "This weekend, American skies will be aflame with fireworks celebrating our legacy of freedom and democracy, even as Republican legislature after Republican legislature constricts the franchise and national Republicans have filibustered the expansive For The People Act. It will be a strange spectacle."

his weekend, American skies will be aflame with fireworks celebrating our legacy of freedom and democracy, even as Republican legislature after Republican legislature constricts the franchise and national Republicans have filibustered the expansive For The People Act. It will be a strange spectacle.

It is hard to view your own country objectively. There is too much cant and myth, too many stories and rituals. So over the past week, I’ve been asking foreign scholars of democracy how the fights over the American political system look to them. These conversations have been, for the most part, grim.

“I’m positive that American democracy is not what Americans think it is,” David Altman, a political scientist in Chile, told me. “There is a cognitive dissonance between what American citizens believe their institutions are and what they actually are.”

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