Roots of the Filibuster– surprise, defending the rights of slaveholders

History often provides the answers to those WTF?!! questions in our political system. The dirtiest things in American politics often seem to have their roots in slavery. How can a presidential candidate win by millions of votes and still lose the election? Biden could have easily lost, in spite of winning by 7,000,000 votes, if about 50,000 votes had been changed in just the right places. What? How? The Electoral College, of course, where 55 Electors go to the winner of California whether the candidate wins by 5 votes or 5.1 million votes, as Biden did in 2020. WTF? The Electoral College was designed, in large part, to give slave states an equal say and final veto power over a bullying majority in states whose economies did not depend on human bondage.

During a century of unpunished lynching of countless American citizens, intended to terrorize them into submission (both the brutal killing and the lack of punishment for the killers), how is it that bills to make lynching a federal crime were blocked and killed in the Senate decade after decade?

A little thing called the filibuster, of course, employed by Dixiecrats (today’s solid southern Republicans) over and over to block legislation that would infringe on sacred States’ Rights to treat certain of their damned citizens however they damned well pleased. A technique once requiring stamina and deliberate, public obstruction for as long as one wanted to block a vote, the modern filibuster does not even require a long speech on the floor of the Senate, an email from any opposition senator now blocks “cloture”, an invention requiring 60 votes that allows a filibuster override and a straight vote on the bill in question [1].

The filibuster was first imagined and employed by Senator John C. Calhoun [2], “The Great Nullifier”, America’s most famous public champion of the Peculiar Institution. It was used over the next almost two hundred years by men like Calhoun to fight laws that would have benefitted those ungrateful former slaves, freed from bondage and still complaining, no matter how many of them were strung up [3]. If you call such men racist, mind you, you’re playing right into the Progressive propaganda exposed in the 1776 Report — calling racists racists is like calling Blacks the “n-word”. John C. Calhoun is laughing in his grave.

But leaving race, and arguments over who is a racist and who is a “nigger,” aside, the filibuster has primarily been a tool of obstruction used, more often that not, by minority defenders of an unjust status quo. Picture Ted Cruz in 2013 reading Dr. Seuss on the floor of the Senate, “I do not like them in a box,” delivered in his famous whining drawl, with that patented shit sniffing grin, to block some bill or a presidential appointment, back in the days when a senator actually needed to actively “filibuster”. Would you be surprised to learn that nobody has made more consistent use of the filibuster than the adorable ageless obstructionist tortoise of the Senate Mitch McConnell?

The incomparable Terry Gross did a recent interview with Adam Jentleson, author of a book setting out the history of the filibuster:

“Kill Switch: The Rise Of The Modern Senate And The Crippling Of American Democracy” is a history of how the filibuster started as a tool of Southern senators upholding slavery, and then later was used as a tool to block civil rights legislation. The book concludes with Senator Mitch McConnell’s advances in the use of filibuster as an obstructionist tool…

(talking to Jentleson later in the broadcast) … we’ve established that needing a supermajority to pass legislation was not what the founders wanted. They wanted simple majorities. You’ve talked about how the filibuster was initiated in the mid-19th century and the ways it was used to enable slave owners and to keep the institution of slavery. But you write that the only time the filibuster was used during Jim Crow with any consistency was to block any form of civil rights legislation and that this happened through the 1960s.

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Check out the interview with the presently ubiquitous Jentleson and then write to your senators and tell them to weigh in against minority leader’s McConnell’s shameless ploy to preserve his right to block anything his party of Trump finds objectionable. He and his Republican colleagues are already attacking Biden as a hypocrite who calls for unity while his party refuses to cave to GOP demands to fairly share power with them in a way Trump’s party sneered at for four years during Mitch’s “51-49, ram it down your throats, suck it cucks” reign as the Grim Reaper.

Senator Ron Johnson of Wisconsin (as good a rhyme as Carl Sandberg’s folksy Yahn Yohnson from Wisconsin) a member of the block of Republican zealots (the Senate branch of the Sedition Caucus) that voted to obstruct certification of the election on January 6, recently smacked weak Democrats with a hard (if also false) choice between getting cabinet positions filled or illegally impeaching Trump [4]. For my money, Johnson, Hawley, Cruz, Tuberville, et al should be expelled using section 3 of the 14th Amendment [5] that bars those giving aid or comfort to an insurrection from serving in Congress, absent a two-thirds vote to let them stay in power.

Think of it this way, with the filibuster intact, McConnell and his less than principled ilk still win. Biden needs 60 votes (not the simple majority needed to get Kavanaugh — 50-48, and Coney-Barrett — 52-48, on the now openly partisan 6-3 Supreme Court for life) to do anything positive legislatively (or even to have his cabinet confirmed– after months of Trump’s historic denial of basic transition courtesies). If the Biden administration needs to find ten votes among the party united in opposition to impeaching a president for planning and inciting an insurrection, an actual deadly attack on Congress (Hang Mike Pence!), to get anything done, you can kiss any kind of progress away from outright cult of personality fascism goodbye. You will need not 51 votes (the margin for most of Trump’s appointees) but 60 to move anything on to the Senate floor for debate and vote.

How do you like them green eggs and ham, Sam I am?

[1] Adam Jentleson on Fresh Air:

But in the modern Senate, the filibuster looks nothing like that. And actually, speaking is not even required. All you have to do when a bill comes to the floor is have a member of your staff send an email to what’s called the cloakroom, which is sort of the nerve center of action on the floor, saying that your member, your – the senator you work for, has an objection to this bill. That single email could be a phone call, could be a conversation in the hallway. That single objection raises the threshold from passing a bill from the simple majority, where technically the rules still have the threshold today, to a supermajority of what is now 60 votes.

And that is a filibuster. There’s no speaking required. No one has to take the floor. No one has to explain themselves. If a senator raises this objection and increases the threshold from a majority to a supermajority, they never actually have to explain themselves at any point. They just do it. And it’s become accepted. And that is why it’s become normalized that most bills in the Senate require 60 votes to pass.

But I just want to emphasize that this is not actually a matter of the rules themselves because the rules still state that a simple majority is what’s required to pass. This is a matter of a procedural hurdle that’s come to be developed over the last few decades and become routinized. The reason bills need 60 votes to pass is that they can’t clear that procedural hurdle to get to the final vote. And that is the problem that is paralyzing the Senate today.

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[2]

So the progenitor of the filibuster, its main innovator, was John C. Calhoun, the great nullifier, the leader, father of the Confederacy. And Calhoun innovated the filibuster for the specific purpose of empowering the planter class. He was a senator from South Carolina. His main patrons were the powerful planters. And he was seeking to create a regional constituency to empower himself against the march of progress and against – what was becoming clear was a superior economic model in the North. So Calhoun started to innovate forms of obstruction that came to be known as the filibuster...

…Calhoun took it upon himself to argue that there was nothing evil about [slavery]. In that same speech that you quoted, he went on to explain that slavery was not a necessary evil, but, quote, “a positive good.” He was such an ardent defender and such a vehement racist that he couldn’t even accept the sort of antebellum acknowledgement that there were parts of the institution that were evil. So it was very clear what his motivations were. He wanted to preserve slavery. And the filibuster was what he deployed to achieve that goal.

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[3]

So what Southern senators faced starting in the 1920s was majority support for civil rights bills. These were rudimentary civil rights bills. These were anti-lynching bills and anti-poll tax bills, but they were civil rights bills nonetheless. These bills started passing the House with big majorities. They had presidents of both parties in the White House ready to sign them, and they actually had enormous public support. Gallup polled the public on anti-lynching bills in 1937 and found 70% of Americans supporting federal anti-lynching laws. And they polled anti-poll tax laws in the 1940s and found 60% support. So Southern senators started to block these bills in the name of minority rights, deploying the supermajority threshold and talking about it as a vaunted, lofty defense of minority rights, just as John Calhoun had done in his time.

This continued to be the case against every single civil rights bill that came before Congress from the time that Reconstruction ended all the way up until 1964, when President Lyndon Johnson finally was able to rally a supermajority of senators of both parties together to break a Southern filibuster against civil rights. But from the 87 years between when Reconstruction ended until 1964, the only category of legislation against which the filibuster was deployed to actively stop bills in their tracks was civil rights legislation.

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[4] As hardball playing insurrection-supporter Senator Ron Johnson put it the other day:

[5]

Fourteenth Amendment 

Section 3 No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

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