FILIBUSTER REFORM REVISITED, OR HOW I LEARNED TO STOP WORRYING ABOUT THE SUPER MINORITY AND LOVE THE NUCLEAR OPTION
"[T]he most fundamental characteristic of democracy - the idea that majority rule is the fairest way to decide the outcome of elections and determine which bills become law - is baked into our founding ideas and texts." Adam Jentleson, Former Deputy Chief of Staff to Senator Harry Reid
I. Background
My December 26, 2012, blog was captioned "It's Time for Filibuster Reform". In my blog of October 30, 2020, I wrote, in contemplation of the November election, that if the Democrats won the White House and the Senate they "should aggressively propose meaningful legislation in several of the areas . . . which are most popular with the public. If the Republicans persist in their opposition to all things progressive, as they did with Obama, then the Democrats should threaten to eliminate the filibuster in the Senate. If that gets no results, then the filibuster should go".
In my December 13, 2020, blog, after the Presidential election but before the Senate run-off elections in Georgia, I wrote, "If . . . the Democrats win both Senate seats in Georgia, [passing legislation which provides something tangible to everyone, regardless of color or identity] should be easier to accomplish, but it may require filibuster reform. Total elimination of the filibuster is probably not possible (even some Democrats would not support it), and may not even be desirable. Democratic Senators Merkley and Udall put together a reasonable and fair proposal to mitigate the abuse of the filibuster a few years ago (discussed in my blog of December 26, 2012) which the Democrats should revisit".
Much has happened with the filibuster since the first of the above mentioned blogs. In November 2013, Senate Democrats used the "nuclear option" to eliminate the three-fifths vote rule on executive branch nominations and federal judicial appointments in order to overcome Republican obstructionism. Supreme Court appointments were exempted and still subject to the filibuster. In April 2017, Senate Republicans led by Mitch McConnell extended the nuclear option to Supreme Court nominations as well in order to end debate on the nomination of Neil Gorsuch (to fill the seat for which President Obama had nominated Merrick Garland for whom McConnell refused to hold hearings much less debate and a vote), although McConnell apparently sees no contradiction in his current opposition to elimination of the filibuster.
Given the immediate total 100% resistance by Senate Republicans (and House Republicans as well) to the initial significant legislation proposed by Democrats to cope with the effects of the Covind virus, although favored by a majority of the public, including Republicans, and to H.R.1, the voting rights bill, also favored by a majority of the public and again including Republicans, the time has come to recognize that only through elimination or reform of the filibuster will there be any likelihood that Republican obstructionism can be overcome. It is also likely that the labor rights bill, "Protecting the Right to Organize Act", which the House passed with only 5 Republican votes, and the gun control bills increasing background checks (with 8 Republican votes), which has overwhelming public support, and increasing time for background checks (with 2 Republican votes) will run into a brick wall of opposition in the Senate where Republicans are unanimously opposed (It is already clear that Atlanta, Boulder and Indianapolis, et al, will not change their minds as has been the case in their past failures to act after similar incidents. In April 2013, four months after the Newtown massacre, a bill enacting background checks on gun purchases introduced by Democrat Senator Manchin and Republican Senator Toomey was defeated by filibuster 55-45; The 45 Senators represented 38% of the people; the bill was supported by nine in ten Americans. Since Newtown on December 14, 2012, through July 2020, more than 2,600 have been killed in mass shootings, including Pulse Nightclub in Orlando, 49, Las Vegas, 58, and Marjorie Stoneman Douglas in Parkland, Florida, 17. When is enough, enough?).
An infrastructure bill which the Biden administration is preparing, and which is vital to long term economic growth is facing similar lock-step Republican legislative opposition in the form of a pathetically inadequate "counter proposal", notwithstanding broad support among both Republican and Democratic voters for substantial infrastructure legislation. The same fate likely faces the two bills passed by the House that would establish paths to citizenship or legal status for millions of undocumented immigrants, including those brought to the country unlawfully as children and workers in the agriculture sector. Likewise the bill to restore a key enforcement provision in the Voting Rights Act of 1965 that made it harder for states to target voters of color which was struck down in 2013 by the Supreme Court. And don't forget the bill to make the District of Columbia, with its 700,000 disenfranchised taxpayers, a state (DC has a larger population than either Vermont or Wyoming and almost as many as North Dakota and Alaska. Do you think that Republican opposition to this bill might just have something to do with the fact that DC is 53% Black and Hispanic?).
II. History of the Filibuster
Before we get to discussion of the source of the current intransigence and dysfunction of the Republican Party let me restate the substance of my 2012 exegesis of the history of the filibuster since it no longer seems to be accessible on my blog website. It is perhaps best summed up in my letter (unpublished) to the New York Times of earlier this year:
"This is just putting off the inevitable [the need for the elimination of the filibuster] given the obstructionist approach of the Senate Republicans. However, there is reluctance on the part of a few Democrats to pull the plug entirely on the filibuster. To reflect for a moment, the idea behind the filibuster is to ensure that there is ample opportunity to debate when a bill is introduced in the Senate. No one can disagree with the premise that the majority should not be able to ram legislation down the throat of the minority with no chance to discuss the merits. However, in recent years the filibuster has been used by the minority, principally Republicans, for purposes never intended, in effect as a veto power. It is now the primary tool of the Republican Party to block any legislation with which it does not agree. From a defensive weapon meant to ensure debate it has become [in its present form] an offensive weapon to foreclose debate. We have reached the point where the mere threat of a filibuster is often sufficient to stop a measure."
We now have an untenable situation where the minority can dictate to the majority. Today it is standard procedure that if you want to pass any legislation in the Senate a simple majority is not sufficient; as a matter of practice, a de facto 60 vote supermajority requirement applies to all legislation (with the exception of the complex and extremely limited reconciliation process). That hardly seems what the Founders had in mind. This is not democracy. It has been calculated that forty-one Senators from states with as little as 11% of the national population can effectively veto legislation. The 21 states represented by two Republican Senators contain less than 25% of the population. Even on the basis of the present 50-50 split Democratic Senators represent over 41 million more people than Republican Senators, that is, Republican Senators represent approximately 38% of the population. Since 2000, Senate Republican share of the population has never exceeded 50%. Their high water mark was in 2005-06, when they had 55 seats, at 49%. In 2009, their share was 35%, yet they were still able to to block much of President Obama's agenda when Democrats represented 65% of the population. (Without trying to push the analogy to its extreme, it should be noted that in the German parliamentary election shortly after Hitler was appointed Chancellor in 1933 his party only received 43.9% of the vote, and we know how that played out.)
Certainly minority rights need to be protected. However, we have the Bill of Rights and the Reconstruction Amendments and the Supreme Court (although lately the Court has not been of much comfort to minority groups) to do that (and we have not yet reached the point where losers of elections fall into the category of protected minorities, Donald Trump and his acolytes to the contrary notwithstanding). We are a nation of minority rights, not minority rule. The Founders also recognized the need to protect minority rights through the checks and balances which they incorporated into our constitutional structure. To pass legislation you need to get a majority in each of the House and Senate and the signature of the President, all elected by the people. That makes it hard enough to pass any legislation even without the filibuster.
The right to filibuster is not provided for in the Constitution. Where in democratic theory or in our revolutionary history does it say, "the minority rules"? In fact, one of the principal driving forces behind the convocation of the Constitutional Convention in 1787 was to replace the Articles of Confederation with its supermajority requirement of approval of 9 of the 13 States for military, tax or spending legislation, which effectively paralyzed the government.
If a minority was allowed to block a majority, then, to quote Madison in Federalist 58, "in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority." Jefferson, who was in Paris at the time of the Convention, wrote to Madison, who served as the informal secretary of the Convention, "It is my principle that the will of the majority should always prevail". In 1834, in a letter written shortly before he died, Madison concluded "The vital principle of Republican Government is the lex majoris partis, the will of the majority".
In fact the filibuster is not part of the original design of the Senate but is a historical anomaly. The first House and the first Senate had nearly identical rule books, both of which included a motion to move the previous question. In legislative procedure, such a motion is used to end debate and bring a matter to a vote. In the beginning days of the House and Senate it apparently was not used much at all. In any event, the House has retained it, and it is now used to end debate and to bring the matter in question to a vote. The motion can be approved by a simple majority. In the Senate, in 1805, Aaron Burr, presiding in his capacity as Vice President, recommended a pruning of the Senate's rules, and singled out the previous question motion as unnecessary. In 1806, when the Senate met to re-codify the rules, they deleted the previous question motion from the Senate rulebook. They did so not because they sought to create the opportunity to filibuster; they abandoned the motion as a matter of procedural housekeeping. Deletion of the motion took away one of the possible avenues for cutting off debate by majority vote but did not constitute a deliberate choice to allow obstruction. The first documented filibuster did not occur until the 1830s, and in the following years filibusters were rare. Thus it stood until 1917, when, prodded by President Wilson who was unable to overcome a filibuster by a "little group of willful men" in the Senate to a vote on his bill to arm merchant ships against German U-boat attacks, the Senate adopted Rule XXII, the supermajority rule which at that time required a two-thirds vote to end debate (it was dropped to 60 votes in 1975), a process known as cloture. It represented a compromise between those who wanted no cloture rule at all and those who wanted a simple majority cloture rule. Thus it does not reflect a Senate uniformly committed to the filibuster but only the fact that a minority blocked more radical reform. The purpose of the 1917 cloture rule was not to protect the right of a minority in the Senate to block legislation by engaging in unlimited debate, but to fill the gap in the Senate rules by giving the Senate some power to limit debate for the first time since 1806.
Until relatively recently the filibuster was rarely used and mainly only by white supremacist Southern Senators obstructing civil rights legislation in order to maintain Jim Crow rules and racial segregation in the South. From the end of Reconstruction in 1877 until 1964 the only bills that were ever stopped by filibusters were civil rights bills. Now it has become the rule rather than the exception. Between 1917 and 1971 no session of Congress had more than 10 cloture motions, a rough measure of filibuster threats. In the 92nd Senate, which met in 1971 and 1972, the number of cloture motions filed jumped to 24, from an average of fewer than 2 per Congressional term between 1917 and 1970. In the 97th Congress (1981-82), 31 cloture motions were filed; in the 102nd Congress (1991-92), 60; in the 107th Congress (2001-02), 71; in the 112th Congress (2011-12), 115; in the 116th Congress (2019-20), 328. Not only does this reflect the level of partisanship between the Parties, it also suggests that it is far too easy to call for and carry out a filibuster.
The modern filibuster has an impressive list of victims in addition to civil rights bills - electoral college reform in 1970 which had broad bipartisan backing and the support of 81% of the American people, a paycheck fairness bill to reduce wage disparity between men and women, the DREAM Act to protect undocumented immigrants who came to America as children, the DISCLOSE Act to expose the anonymous donors pumping millions of dollars into the political system, a bill to allow public safety officers to collectively bargain and form unions, a bill to close tax loopholes that reward corporations for sending American jobs offshore and an expansion of social security benefits, all Democratic bills. In addition, some bills or provisions in them never get voted upon due merely to the threat of a filibuster and the requirement of 60 votes; for example, the public option for health care included in the ACA until the very end, even though it enjoyed majority support.
Republican Senators are much more united by what they want to stop than what they want to pass; their incentive to act is weaker since they can accomplish much of their agenda by doing nothing. Democrats, on the other hand, are traditionally the force for social change, and their agenda tends to rely on passing major legislation.
Aside from obstructing almost all progressive legislation, the filibuster has turned the Senate into a totally dysfunctional body which passes little legislation of any kind. Is it any wonder that as recently as December 2020 82% of the public disapproved of the way Congress is handling its job? Over the last 12 months approval has never been higher than 35%. Under its present rules it is incapable of governance. Of course, this works heavily in favor of the Republicans as they are congenitally indisposed to government and governance in the first place. They are the Party of the status quo or even of the status quo ante. Or as Henry Adams described the reigning conservatives of his time, they zealously believed that "what had ever been must ever be".
III. Current Filibuster Practice
To review how the filibuster works today:
1. An individual Senator can prevent the Senate from holding a vote on a particular issue until 60 of his colleagues finally tell him or her "no". Since, as described below, a filibuster would paralyze the Senate for days and perhaps weeks and make it impossible to carry out other business, today a Senator merely has to advise that he is going initiate a filibuster and the legislation in question is dropped or put to a vote requiring 60 votes for passage without requiring the opposing Senator or Senators to even debate the legislation, thus destroying the supposed purpose of the filibuster.
2. Not only can Senators use the filibuster to force endless imaginary debate, but they can also use it to prevent debate from starting in the first place, since the motion to proceed which is required to start debate is subject to filibuster.
3. In order to resolve differences between similar but not identical bills passed by the House and the Senate through the conference committee process, the Senate must pass three motions, a motion formally disagreeing with the House bill, a motion expressing the Senate's desire to conference and a motion enabling a small group of Senators to be designated as negotiators, each of which motions can be filibustered.
4. Even after 60 Senators break a filibuster, the dissenters can still force up to 30 hours of post-cloture debate per broken filibuster, with the result that to pass a single bill the Senate may need to spend 30 hours on additional debate after breaking the filibuster on the motion to proceed, another 30 hours after breaking the filibuster on the cloture motion to end debate and possibly another 90 hours after breaking three filibusters if the bill has to go to a conference committee.
5. As unanimous consent is required to avoid a filibuster and post-cloture debate, a single Senator can place a "hold" on any Senate business by indicating a willingness to withhold such consent by doing so through his or her party leader and without revealing his or her name to other Senators.
6. In most cases Senators can offer any amendment to any bill under consideration, regardless of whether the amendment is germane to the underlying legislation, thus overwhelming the amendment process or effectively destroying the bill's chances of passage by filing "poison pill" amendments.
7. Perhaps most significantly, a filibustering Senator (or group of Senators) does not need to speak continuously on the floor of the Senate to sustain his or her objection.
8. In effect, following the initial objection, the majority must assemble 61 votes to end the filibuster rather than the minority having to assemble 41 votes to continue debate.
IV. Suggested Filibuster Reform
It's time for a change. The last 12 years have seen the culmination of the scorched-earth partisanship initiated by Newt Gingrich (and again threatened by Mitch McConnell) which has led to unresponsiveness by Congress to the needs of the people of this country, Democrats and Republicans alike, and the widespread distrust of government. Filibuster reform is a necessity if this course of legislative paralysis is to be reversed. It can be done by changing the rules of the Senate which can be done by a simple majority vote which the Democrats now have if all 50 Democratic Senators support it with Vice President Harris' vote.
The following suggestions for filibuster reform are derived from the proposal of Senator Merkley of Oregon and former Senator Udall from New Mexico referred to in my 2012 blog:
1. Eliminate the filibuster on motions to proceed.
2. Eliminate filibusters on amendments since Senators would still have the right to filibuster the final vote. All amendments would have to be germane to the underlying legislation.
3. Eliminate filibusters on the conference committee process.
4. Require a substantial number of Senators, say, 10, to file a filibuster petition to block a simple majority vote on a bill.
5. Require a specific number of Senators, say, 5, for the first 24 hours, 10, for the second 24 hours, 20, for the third 24 hours, and 41, thereafter, to be on the floor to sustain the filibuster. If the count falls below the required level, the regular order prevails, and a majority vote is held.
6. Require debate to be continuous. If, when a Senator concludes speaking, there is no Senator who wishes to speak, the regular order is immediately restored, debate is concluded and a simple majority vote is held. Debate must be germane to the bill in question.
7. Limit post-cloture debate to, say, 8, hours.
8. A motion for cloture could be initiated at any time and would still require 60 votes.
Such a procedure would seem to provide a reasonable amount of time for the minority party to debate the merits of any bill without totally upsetting the schedule of the Senate and yet keep the debate on course and ensure legitimate debate instead of merely being a tactical device to kill the bill.
It should satisfy those Democrats who are committed to the Senate as a debating forum (as delusional as that may be today) and are reluctant for that reason to eliminate the filibuster entirely. Although not the ideal solution (which would be total elimination), it should make it possible to move deserving legislation through the Senate, albeit somewhat inefficiently, and a vast improvement over the current situation. As a practical matter, it may be the only alternative which has any chance of success. Other reform possibilities include establishing carve-outs for certain types of critical legislation, as has already been done with executive branch nominations and federal judicial appointments including those for the Supreme Court (a carve-out for the new voting rights bill, which goes to the heart of our democracy, being a first priority candidate), lowering the threshold for cloture from 60 votes to, say, 57, then 54, and finally, 51, after specified periods as the debate on the bill goes on, or requiring the minority to provide 41 votes to continue the debate as opposed to having the majority provide 60 votes to end debate.
V. Recent Examples of Failure of Bi-Partisanship
For those moderate or conservative Democrats who may still view this as an extreme remedy, there really is no other recourse if Democrats hope to enact any part of President Biden's program. Bi-partisanship with today's Republican Party is off the board no matter how desirable and preferable it would be. Bi-partisanship requires compromise and open-mindedness to which Republicans are opposed, not just tactically but ideologically. This is not part of the Republicans' DNA. The Republican battle cry is, "If it comes from the Democrats, just say 'no'". Let's look at some recent examples in addition to the pending legislation:
a. Original Obamacare in 2009 - 1 Republican vote in the House (only after 218 aye votes were already recorded) and none in the Senate.
b. From 2009 to 2013, before then Majority Leader of the Senate Harry Reid exercised the "nuclear option", President Obama faced 86 filibusters against his executive branch nominees. All other Presidents before then combined had endured only 82 filibusters against their nominees.
c. 2010 - Mitch McConnell: "The single most important thing we want to achieve is for President Obama to be a one-term president."
d. First Trump impeachment - no Republican votes for impeachment in the House and 1 for conviction in the Senate on one of two counts.
e. Second Trump impeachment - 10 Republican votes for impeachment in the House (197 voted against impeachment) and 7 for conviction (43 voted to acquit) in the Senate on what should have been a "no-brainer" (although Constitutionally mandated a clear example of the danger of super majority voting; the vote for conviction was 57-43).
f. Objection to State electoral college certification for 2020 Presidential election in Arizona - 121 Republican votes in the House and 6 in the Senate.
g. Objection to State electoral college certification for 2020 Presidential election in Pennsylvania - 138 Republican votes in the House and 7 in the Senate.
h. 2021 $1.9 trillion American Rescue Plan - no Republican votes in the Senate or House.
i. 2021 Biden cabinet appointments - of 21 appointments voted on as of this writing, Hawley has opposed 19, Cruz and Scott have opposed 18, Cotton has opposed 17, Tuberville has opposed 15; 23 of the 50 Republican Senators have opposed one-half or more of the appointees; Collins has voted for all, Murkowski, Portman and Romney have each voted for 19.
Does this look like bi-partisanship? Democratic Senators Manchin and Sinema argue that by requiring a supermajority the filibuster forces bi-partisan compromise. Really? Good luck with that. The truth is that the two Parties no longer hold a shared version of reality or a shared vision of ideals. The Republicans draw primordial energy from the dark side of human nature and represent white supremacy, fundamentalist evangelical faith and volkish nationalism versus the Democratic ideas of reason, skepticism, humanitarianism, democracy, faith in progress, scientific secularism and modern concepts of individual liberty. It is a sectarian divide not unlike a religious sectarian split. Partisanship has become a "mega-identity", in the words of the political scientist Liliana Mason, representing both a division over policy and a broader clash between white, Christian conservatives and a liberal, multiracial, secular elite.
Simply put, there is no chance whatsoever for President Biden's program to be enacted in any recognizable form given the present state of the filibuster rule. And if these programs are not enacted, aside from the harm to the country, the Democrats run a significant risk of losing both the House and the Senate in 2022 and the Presidency in 2024.
VI. The Republican Party And Democratic Values
Why is the Republican Party incapable of the bi-partisanship which is implicit in democratic systems? It is because the Republican Party, with or without Trump, is the party of supporters of white (by 2020 81% of Republican voters were white) male supremacy, anti-feminism, patriarchy, homophobia, ethnocentrism and evangelical fundamentalism/Christian nationalism who are motivated by their fear of losing what they deem as their deserved traditional privileges. In more polite terms these supporters are generically referred to as the Trump base, but this fails to identify its composition which the Republican Party has embodied and enabled and obscures what drives the Party's political program. Forget about the self proclaimed ideologies of traditional conservatism - small government, fiscal discipline and family values - those are smoke screens and are no longer emphasized by Republican politicians as they don't resonate with voters in today's economic and cultural environment, not that they were ever viable policies or more than propaganda to enhance the position of the Republican Party's wealthy benefactors. Today, for the Republicans, it's all cultural or social issues which they have come to see as their sole route to power. Governance is beside the point. To quote the NY Times in discussing the actions of Marjorie Taylor Greene as illustrating the attitude of the new ranks of Republicans in Congress, "A growing number of lawmakers have demonstrated less interest in the routine passing of laws and more in using their powerful perches to build their own political brands and stoke outrage among their opponents".
Each of these components of the Party's supporters incorporates anti-democratic values, as does the filibuster itself. These Republicans were for democratic values, i.e., the majority decides, as long as they represented the majority, or at least considered themselves as such. They believe in faux democracy only. Now that such a privileged position is contested, they are unwilling to rely on the Bill of Rights (which they claim to revere) and the courts (although they have stooped to the most abject charlatanism to establish the Supreme Court as an anti-democratic bastion) to protect their imagined rights, that is, their ability to continue to govern as a majority even when they don't have the votes, but instead attack democracy itself in an effort to enable the Republican Party to wield power, even if it does not speak for majority views, through gerrymandering and voter suppression or overthrowing the votes of the feared new majority, even, as we saw on January 6, by resort to violence. When they saw themselves as speaking for the majority they had no inhibitions about touting popular sovereignty (as advocated, for instance, by Stephen Douglas a Democrat when that was the racist party, in arguing that the white majority should be allowed to decide whether to permit slavery in the territories in the lead-up to the Civil War), but with the fear of becoming a voting minority they are now whining that they need the filibuster to protect their minority rights (as they similarly did when defending Jim Crow legislation, again as racist Democrats). They are now relying upon it to defeat H.R.1 which would foreclose their attempts to reimpose Jim Crow through red state voter suppression and gerrymandering. The majority which they wish to preserve today is the majority of the 19th century, the establishment that then dominated public life. With the present composition of the Republican Party congenitally indisposed to tolerance and compromise and consensus, there is an increasing disdain for democratic institutions and norms. The very natures of racism, anti-feminism, patriarchy, homophobia and religious fundamentalism represent inherent rejections of the democratic values which rely upon and compel bi-partisanship.
To quote Jennifer Horn, the former chair of the New Hampshire Republican Party who left the Party, the GOP, in its current incarnation, is "the most open embrace of an anti-democracy movement that we have seen in our country in a very long time.... We tried to disenfranchise American voters. We targeted minority voters in Georgia and Michigan and Pennsylvania, trying to overturn democracy in America". But she is a rare Republican exception; see the recent statement by the Arizona state representative who chairs the state's Government and Elections Committee explaining that Republicans were happy to create measures that kept people from voting because "everybody shouldn't be voting.... Quantity is important, but we have to look at the quality of votes, as well".
Echoes of Paul Weyrich, conservative political activist and co-founder of the Heritage Foundation, a conservative think (oxymoron?) tank, and, with Jerry Falwell, the Moral Majority, in remarks to the Religious Roundtable in August 1980: referring to what he calls the "goo-goo syndrome: good government", "They want everybody to vote. I don't want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down."
VII. The Republican Base Versus Bi-Partisanship
It has been noted by Jelani Cobb that the modern Republican Party has been built upon the "Southern beachhead" established by Goldwater in 1960. He further notes that in 2018 some 70% of "safe" or "likely Republican" districts were in Southern states. Prior to the 2020 elections Southerners composed 48% of House Republicans and 71% of the Party's ranking committee members. The South, he contends, remains the nation's most racially polarized region and also the most religious - two dynamics that factor largely in the Party's political culture.
It is instructive to reflect on the historic use of the filibuster by Southern Senators to maintain their Jim Crow anti-democratic political, economic and social structure, an obvious link to what has become the Republican Party's anti-democratic use of the filibuster today, and, in the case of its opposition to H.R.1, its present racist bias which was imported lock, stock and barrel with the migration of the Dixiecrats to the Party as part of its Southern Strategy after the Civil Rights legislation of the 1960s. These people wouldn't compromise then, and they won't compromise now that they dominate the Republican Party with its willing accomplices.
The filibuster is intimately tied to white supremacy and the anti-majoritarian, anti-democratic policy of the slave holding South. The current Republican reliance on the filibuster can be traced back to South Carolina Senator John C. Calhoun, albeit a Democrat, in whose footsteps the Republican Party with its present southern heritage is following. Calhoun, in the years prior to the Civil War, was the most articulate spokesman for slavery and its extension into the Territories and the leading proponent of nullification or "concurrent majorities" whereby any State legislature could exercise veto power over the application of any federal law in such State. Calhoun was determined to pull the United States back toward a form like the one which existed under the Articles of Confederation - one in which a minority could impose its will on the majority. The issue then was slavery and ostensibly state's rights, and although the term "filibuster" and the filibuster itself was not yet in common use, the principle is the same - the right of the minority to veto the decisions of the majority.
Underlying the origins of the filibuster in the 19th century and to this day is the issue of the balance of power in Congress; then between the slave South and the free North and now between rural (white evangelical) and urban (diverse secular) America. The fear then was that the addition of Senators from new (free) states would overwhelm the South in the Senate - something of the same type of fear motivating the rural white evangelical South and Plains states today; thus the fear of majority rule.
Let's explore the religious right element for a moment. In doing so it is important to distinguish between mainstream Protestantism and the evangelical Christian nationalism of the religious right. Nor is this a matter of questioning the theological beliefs of the right or any other religious grouping; it is about the application by the religious right of these beliefs to the political arena when the law no longer reflects conservative fundamentalist beliefs about proper social policy, their attempts to impose such beliefs on others and the implications thereof for reaching bi-partisan accommodation or consensus with their political agency and protector, the Republican Party, on issues of governance; that is, Christian nationalism as a political theology the religious right embraces in order to baptize their political ends with the support of the transcendent.
First, some statistics: The share of white Protestants identifying as evangelical was 56% in 2020. White evangelical backing for Republican presidential candidates has hovered around 75-80% for decades. About 80% of white evangelicals supported Trump in 2016 and at least 75% did so in 2020; in a poll conducted after January 6, 66% of white evangelicals agreed that Trump was a true patriot. Roughly half of evangelicals embrace Christian nationalism to some degree (this kind of nationalism believes that non-Christian Americans are unable ever to be truly American). 28% of white evangelicals believe in QAnon.
By 1996 the Southern Baptist Convention had adopted what has been called the "civic gospel": the view that America had been founded as a Christian nation, but had fallen away, and that Christians had to take aggressive political action to protect their own rights, to buttress public and private morality, and to restore the American Constitution; conservative activists argued that there was only one Christian view on political issues and that political liberals could not be true Christians.
Frances Fitzgerald has written, "According to fundamentalist tenets, obedience to constituted authority was the cardinal principle of Christian society: children were to obey their parents, wives their husbands, and citizens the state, just as all humans were to obey God". There is no room for egalitarian gender roles, which is considered incompatible with the inerrancy of the Scriptures.
Andrew L. Whitehead and Samuel L. Perry, Professors of Sociology, describe Christian nationalism as:
" [A]n ideology that idealizes and advocates a fusion of American civic life with a particular type of Christian identity and culture. It includes assumptions of nativism, white supremacy, patriarchy and heteronormativity, along with divine sanction for authoritarian control and militarism. It is as ethnic and political as it is religious. Understood in this light, Christian nationalism contends that America has been and should always be distinctively 'Christian' from top to bottom - in its self-identity, interpretations of its own history, sacred symbols, cherished values and public policies - and it aims to keep it this way."
Katherine Stewart, who writes frequently about religious nationalism, describes Christian nationalism in "The Power Worshippers", as follows:
"It is a political movement, and its ultimate goal is power. It does not seek to add another voice to America's pluralistic democracy, but to replace our foundational democratic principles and institutions with a state grounded on a particular version of Christianity, answering to what some adherents call a 'biblical worldview' that also happens to serve the interests of its plutocratic funders and allied political leaders.
"Christian Nationalism is not a religious creed but, in my mind, a political ideology. It promotes the myth that the American republic was founded as a Christian nation. It asserts that legitimate government rests not on the consent of the governed but on adherence to the doctrines of a specific religious, ethnic and cultural heritage. It demands that our laws be based not on the reasoned deliberations of our democratic institutions but on particular, idiosyncratic interpretations of the Bible. Its defining fear is that the nation has strayed from the truths that once made it great."
Religious fundamentalists believe in the inerrancy of the Bible including the historical accuracy of all of the events which are recorded in it such as the Adamic account of creation; that the Bible is the word of God and revealed truth through divine revelation. Truth depends on revelation and faith, not reason. The Christian right rejects the modernism of their fellow mainstream religionists and secularism in general. There is only one right way and followers of other religions are indulging in heresy. From the perspective of a fundamentalist religious believer divine commands take precedence over all other needs and obligations. Believers who comply with laws which flout such commands risk eternal damnation.
For the evangelical church, membership is no longer based in religion. The litmus test for religious belonging comes via one's political beliefs.
How is it possible to work together with such true believers who leave no room for compromise? Fundamental religionists accept an authoritarian and hierarchical source of governance which cannot be questioned. It is strictly top-down; there is no room for democratic rules. God's law overrules man's law; and who is to decide what God's law is? Certainly not the people. If such fundamentalists form the backbone of the Republican Party, as is the case, there is no room for bi-partisanship. Consensus is beyond reach. As Katherine Stewart comments, "Today it makes more sense to regard the Republican Party as a host vehicle for a radical movement that denies that the other party has any legitimate claim to political power. . . .[F]ew Republican politicians can achieve influence without effectively acting as agents for Christian nationalism, and almost no Democratic leaders can realistically cede enough ground to earn the movement's support."
The idea of trying to negotiate with white supremacists is too absurd to even discuss. They deny democracy on its face. They are fighting back against challenges to their historically dominant position in American culture, society and government. They are driven by a fear of the "Great Replacement", the theory that holds that minorities are progressively replacing white populations due to mass immigration policies and low birthrates. Projections of a "majority minority" by around 2045, with white population then making up only 49.7 % of the population (24.6% Hispanic, 13.1% Black, 7.9% Asian), only compound this fear and further motivate white supremacists. These are not people who are open to bi-partisanship, and the Republican Party has chosen to become their party.
The anti-feminists are much the same (remember Phyllis Schlafly successfully campaigning against the ERA). It should be noted also that religious fundamentalism in America has historically been deeply tied to white supremacy as well as to the anti-feminist patriarchal mentality which lies at the heart of the anti-abortion movement. There has been a marriage of evangelical morality to the Republican Party - all in the service of maintaining white conservative male leadership.
A recent poll conducted by a Republican pollster showed that, when asked if they believed politics was about enacting good public policy or about ensuring the country's survival as we know it, only 25% of Republicans said it was about the former and almost 50% said it was about the latter. According to the pollster, there is a real sense among many in the Republican coalition today that they are under siege. Whether it's a sense of losing cultural power or losing economic power, many people who have gravitated to the right don't see what's happening in Washington these days as really about such things as top marginal tax rates or what government spending should look like but rather as about the way of life they have known is changing rapidly. And that makes them anxious and drives a lot of their views accordingly. She goes on to suggest that for a lot of Republicans to relieve this sense of siege would mean some combination of feeling like they're able to practice their religion freely. According to her, some recent research has shown that one of the most unifying beliefs of the Trump coalition was the idea that there is religious persecution of Christians in the U.S. these days (see recent speeches by Justice Alito and Attorney General Barr).
For them, Trump seemed as though he was somebody who was going to defend their right to practice their religion as they saw fit and not be told by the government that they couldn't, or be told - not just by the government, but by other institutions - by schools that their children go to, or by the media, or by their employers - that they're not allowed to hold certain beliefs. They're reacting not necessarily to things that the government is doing, but what they feel is an encroachment on their values coming from government, Hollywood, big tech, the media, universities, whatever. It is not so much a matter of economic libertarianism as get the government out of my life libertarianism. They're more willing to accept an extreme candidate because "he fights".
According to the NY Times, "Recent party polling indicates that, more than any issue, Republican voters crave candidates who 'won't back down in a fight with the Democrats'". Further, " . . . it's the willingness to engage in brass-knuckle political combat that's most important in the party right now". According to Ralph Reed, now a Republican strategist, that " . . . has become the overarching virtue Republicans look for in their leaders. . . . Now we just dig in."
So, if you're a Republican politician, how do you wield power to deal with the problems your base sees? As one commentator has pointed out, there aren't a lot of policy solutions to the problems the base is concerned about. There is not a lot of policy they can offer. There is more a posture of fighting, and that's what appeals to the base, not bi-partisanship.
VIII. The Future of Liberal Democracy Requires Filibuster Reform
So there you have it. The Republican Party in its present form has demonstrated that it is incapable of participating in a bi-partisan dialogue on a legislative program as it would be suicidal. It has entrapped itself for short term political gain - a Faustian bargain. Such being the case, if the Democrats wish to achieve their legislative goals there must be filibuster reform. There is no other way.
It actually goes deeper than that. There is much more at stake than a legislative program, important as that may be. Due to the desperate situation the Republicans have created for themselves, their only recourse is to destroy democracy through gerrymandering and voter suppression. At the state level they are capable in many states of doing just that (see Georgia and Texas and many others) and they are working on it (not even the opposition of usually Republican corporate America can discourage them). For them, it is to be decision not by election but by assertion, made not by a simply numerical majority but by "we", the patriots, the real Americans. They have fused the idea of an entitlement to privilege - which is being stolen from white Americans by traitors, Blacks, immigrants, and socialists - with the absolute distinction between real and and unreal Americans. The concern is not that there are bogus votes, but that there are bogus voters, that much of the US is inhabited by people who are, politically speaking, counterfeit citizens. Unlike "us", they do not belong; they cannot be among the "we" who get to choose. Which is why as a matter of self preservation as well as good government policy, to say nothing of the democratic ideals in which our country professes belief, H.R.1 must be enacted into law, and that is not going to happen without filibuster reform, as Republicans have made clear that they are dead set against it.
Passage of H.R.1 should be seen as an existential issue, not only for the Democratic Party but for the future of this country, as it goes to the heart of liberal democratic government. For that reason alone there must be filibuster reform, if not filibuster elimination, now. It may well be a matter of "now or never". If state voting laws are changed as contemplated in "red" states, there may be no second chance. There will be minority government, and it will not be a benevolent minority. It is time to take a page from the Republican handbook and play "hard ball". We have finally come to the fork in the road, or, if you prefer, the Rubicon. There is no via media. We faced this once before at Fort Sumter, and now again on this past January 6.
