No, the Filibuster Isn't Racist | Opinion

As part of a larger campaign arguing for federal reforms, Congressional Democrats and their allies in the progressive movement have aggressively argued that the Senate filibuster is a tool that is fundamentally rooted in America's racist past. Until recently, the highest profile Democrat who made this argument was former President Barack Obama, who said last year that the filibuster is a "Jim Crow relic."

This week, President Biden gave his stamp of approval to this framing, saying that he agreed with Obama. Biden did not go as far as some in his party, who have called for the filibuster to be eliminated altogether, but suggested it is in need of some kind of reform.

It is not surprising to see the Democrats associate the filibuster with racism. It's an understandable tactic, because Americans belong to one of the world's most tolerant societies; most of us do not want to be associated with overt racial discrimination in any way, shape, or form. Thus, if the filibuster is simply a product of racism, why shouldn't we get rid of it?

But we should slow down and examine whether this claim is true.

To begin with, let's define what a filibuster is. The term comes from the Dutch word for pirate or "freebooter"—someone who forcibly seizes loot. In the 19th century, American politicians began to use the word to refer to the tactic of talking for long lengths of time in order to obstruct the business of the Senate.

Many Americans likely think of "Mr. Smith Goes to Washington" when they imagine the filibuster; they imagine a senator who is holding the floor by going on a righteous rant. For much of early American history, that's basically what filibusters consisted of.

Despite the claims that the filibuster is inextricably tied up with racism—we'll get to that in a minute—these early filibusters took place on all sorts of issues that aren't nearly as hot-button today. The very first extended filibuster was over an objection to the hiring of Senate printers. Later that year, the Democratic minority engaged in an extended filibuster to try to block legislation that would establish a national bank.

In 1917, senators frustrated at the common use of this tactic adopted the first cloture rule, which allowed the Senate to "invoke cloture" and end debate with a two-thirds majority vote. A couple years later, the Senate used this cloture rule for the first time to end a filibuster against the Treaty of Versailles. The cloture rule was later changed to allow debates to be ended with sixty votes, which is the rule today.

Of course, "the filibuster was created over Senate printers" doesn't have quite the same punch as "the filibuster was created so that slave holders could hold power over our government," the false claim made by Massachusetts Democratic Senator Ed Markey.

But what about the argument that it was at least used against civil rights legislation?

It's true that a number of marquee civil rights bills were filibustered. The most infamous of these filibusters did indeed occur during the Jim Crow era, when then-South Carolina Democratic Senator Strom Thurmond used it to try to block the Civil Rights Act of 1957. Thurmond set the record for a single-person filibuster, talking for 24 hours and 18 minutes straight.

But at the end of Thurmond's stubborn floor remarks, in which he read the voting laws of each of 48 different states and the U.S. criminal code to fill up the time, he didn't actually change a single vote. The bill passed anyway.

Vox's Zack Beauchamp, who is sympathetic to the Democratic arguments, notes that a pair of political scientists studied legislation that was actually killed by filibusters between 1917 and 1994; what they found was that half of the bills that were defeated were related to civil rights in some way.

This isn't super surprising, as civil rights legislation was highly controversial at the time, and the current cloture rules ensure that you need a strong consensus to pass the most controversial legislation.

But the filibuster's usage has actually gone way up in the post-Jim Crow era. As Brookings's Molly Reynolds has documented, the use of the Senate cloture rule has become far more common in the last two decades. "More cloture motions have been filed in the last two decades than in the 80 years prior," Reynolds found.

In other words, the filibuster is a "Jim Crow era relic" because it's not a relic at all. It's being used more and more.

That includes by Democrats. When South Carolina Republican Tim Scott proposed a policing reform bill last year, Democrats used the filibuster to kill it. Scott, who is an African American man, probably finds it quite amusing that the Democratic Party used what it now refers to as a racist relic to defeat his legislation.

Still, though the Democrats' latest filibuster message may be factually unsound, the case for changing filibuster rules isn't necessarily all that bad. The modern filibuster has become a tool that doesn't even require Senators to actually hold the floor and speak in order to keep debates open and prevent a vote on legislation. As long as there are 41 votes to hold off cloture, nobody needs to take the floor at all, whether they're on the right side of history like Mr. Smith or the wrong side like Thurmond.

Biden and others have suggested that one way to reform the filibuster might be to require Senators to actually hold the floor and give speeches in order to prevent a vote from taking place. There's a straightforward case to be made that the minority party should be allowed to make its case against legislation to their colleagues and the general public for as long as it wants—as long as it's willing to put the work into doing so.

But we should try to situate our debate about the filibuster in reality, rather than cynically deploying charges of racism in order to assuage a public that is often terrified of being accused of racial insensitivity. Racial prejudice is a real issue that we should address with the seriousness and sensitivity that it deserves; the topic should not be reduced to a cheap political weapon.

Zaid Jilani is a journalist who hails from Atlanta, Georgia. He has previously worked as a reporter-blogger for ThinkProgress, United Republic, the Progressive Change Campaign Committee, and Alternet. He is the cohost of the podcast "Extremely Offline."

The views in this article are the author's own.