Jonathan P. Baird

There is no doubt that Senator Mitch McConnell is a shrewd political operator. Winning at all costs is his signature approach to politics. But I have to say I was surprised by his response to a reporter’s question on March 23 about the filibuster. McConnell responded:

“It has no racial history. None. There’s no dispute about that.”

Possibly McConnell was talking about the origins of the filibuster but what he said was absolutely misleading. Historically, the filibuster has been the primary device used by Southern senators to block civil rights legislation dating back 100 years.

The filibuster, a Senate rule that now creates a 60 vote threshold for major legislation, is a procedural maneuver which allows a minority to stop almost all legislation. It is highly ironic that Republicans now tout the filibuster as protecting minority rights because its history is as a racist tool of white supremacy.

The most famous filibuster ever was the filibuster over the Civil Rights Act of 1964. It went on for 60 days. The Civil Rights Act protected voting rights, banned discrimination in public facilities and enforced equal opportunity in employment.

In the debate, Senator Robert C. Byrd of West Virginia spoke for over 14 hours. At the time, the Senate needed a two-thirds vote to cut off a filibuster on a civil rights bill. That was one of the very rare occasions where the Senate obtained a vote for cloture to end a filibuster so there could be a vote on the bill itself.

In 1957, Senator Strom Thurmond of South Carolina staged the longest continuous filibuster in U.S. history. He spoke for over 24 hours to prevent the passage of the Civil Rights Act of 1957, a bill designed to protect the rights of African Americans to vote. In this instance, Thurmond failed, as the bill passed two hours after his speaking marathon.

Probably the most insidious racist use of the filibuster was its use against anti-lynching bills that came before Congress. Over several decades, starting just before 1920, Congress would consider nearly 200 anti-lynching bills. Not one bill ever passed nor did they get votes on the merits. The filibuster was the main tool preventing a vote on all civil rights bills. Writing in the Atlantic, David Litt described the Senate obstruction:

“First, to slow the proceedings, they demanded that the Senate journal be read out loud each day in full, something technically required by the chamber’s rules but rarely enforced. Then the filibusterers began offering amendments to the journal during the reading. These could be as meaningless as inserting a senator’s middle name or changing a single word in a speech. Yet the vote on each of these amendments could be filibustered.”

The problem for the anti-lynching side was that the filibuster sidetracked all other legislative priorities. Consistently, senators ended up caving in and giving up on anti-lynching bills. They did not want to sacrifice all other priorities.

There was awareness in Congress about lynching. Thousands of African-Americans were lynched in the 1890’s. Between 1901 and 1929, more than 1200 African-Americans were lynched in the South. The NAACP led the anti-lynching legislative campaign. Their report, “Thirty Years of Lynching in the United States, 1889-1919”, educated the public.

The anti-lynching campaign was led by NAACP Executive Secretary James Weldon Johnson and Atlanta civil rights activist Walter White. Rep. Leonidas Dyer, a Congressman from St. Louis, first brought an anti-lynching bill forward in 1918. Dyer argued that lynching and state’s refusal to prosecute the perpetrators violated victims’ Fourteenth Amendment rights.

Advocates were never able to overcome Southern parliamentary maneuvers, including threats that the filibuster would shut down all Senate business.

In 2005, the Senate formally apologized for its failure to enact anti-lynching legislation. The resolution noted that 99% of all perpetrators of lynching escaped from punishment by state or local officials. The resolution did not mention the role of the filibuster which was the procedural mechanism utilized to avoid even a vote on anti-lynching bills.

The filibuster was also used to obstruct bills outlawing use of the poll tax in Southern states. Millions of African-Americans and poor whites in the South were disenfranchised. In the 1940 election, in the states of Mississippi, Alabama, Georgia and South Carolina 264,419 votes were cast out of a population of 9,300,000. Huge numbers could not afford to vote.

In 1946, the Senate came close to passing anti-poll tax legislation but a cloture vote on the filibuster which then required a two-thirds supermajority failed. The bill never got a vote.

The poll tax lasted until 1964 when it was ended by a constitutional amendment.

The filibuster idea goes back to 1790 when Senators from Virginia and South Carolina filibustered to prevent the location of the first Congress in Philadelphia. Possibly this is what Sen. McConnell was referring to because the filibuster had use beyond race. It is also possible that McConnell was referring to Sen. John Calhoun’s actions in 1841 when Calhoun organized opposition to the chartering of the U.S. Bank. Still, Calhoun, a staunch defender of slavery, used the filibuster to protect Southern interests.

The fact that the filibuster had other utilities beyond race does not erase its extensive use for over 100 years to reinforce racism in the American way of life. It has been used in the service of our most dishonorable tradition.

The Democrats should ignore McConnell’s threats about how filibuster reform would produce “nuclear winter”. The filibuster has an ignoble history, thwarting civil rights legislation. It has zero constitutional foundation. It is simply a clever device blocking majority rule. The idea Democrats could get 60 votes for any of their legislative goals is an impossible dream. If the Democrats want to realize any part of their agenda beyond the Rescue Plan, they must end the filibuster.