The Senate Has Used the Filibuster to Block Civil Rights Bills for Decades. That’s Another Reason for Dems to Ditch It

Sen. Jeff Merkley (D-Ore.) has a pair of priorities as his party assumes control of the Senate for the first time in six years. One is sweeping legislation that tackles every facet of democracy reform, from gerrymandering to dark money and voter suppression. Senate Majority Leader Chuck Schumer (D-N.Y.) designated the bill as one of the first the new Democratic majority will likely take up.

But standing in the way is the Senate filibuster, which de facto raises the number of votes required to pass legislation in the Senate to 60 instead of the simple majority of 51. The filibuster enables the minority party to block legislation, and it had primarily been used to halt the consideration of civil and voting rights bills. That changed a decade ago under Sen. Mitch McConnell (R-Ky.), the Senate’s top Republican, when the filibuster was used for nearly all legislation and “absolutely paralyzed this place,” Merkley tells me. And Merkley warns that as Senate minority leader, McConnell will surely use it to stymie democracy reform.

“I do not think that it’s acceptable for us to say, ‘We’re going to let Mitch McConnell have a veto over Americans fundamental rights,’” he says. Hence another priority for Merkley: reforming the filibuster so his bill can be put on the Senate floor, amended and debated by his colleagues of both parties and put to a simple majority vote.

Ending the 60-vote filibuster has been Merkley’s hobby horse for some time. In 2012, he proposed a less radical step with a call to restore the “talking filibuster,” which would force debate to block legislation. For years, his push had been a lonely one. More than a dozen of his Senate Democratic colleagues joined Republicans in signing a letter that promised to “preserve existing rules, practices, and traditions” in the Senate. Since last summer, he has been meeting privately with colleagues to discuss possible filibuster reforms, and nearly all of those remaining Democratic signatories have sided with him. So, too, has former President Barack Obama, who called the practice a “Jim Crow relic” in a eulogy for civil rights icon Rep. John Lewis (D-Ga.) last summer. Like President Joe Biden, Obama began his presidency with unified Democratic control but witnessed the minority party railroad his agenda at every possible opportunity when he lost that filibuster-proof majority in 2010.

There’s a lot Democrats want to achieve in this window of opportunity. At the top of the list is Biden’s $1.9 coronavirus relief package and a jobs and infrastructure package to follow. But the party is already at war with itself over how to govern with such narrow majorities, particularly in the Senate, where Vice President Kamala Harris gives the Democrats a one-vote edge. Biden, who spent more than three decades in the Senate brokering bipartisan deals, has signaled a preference for the parties to work together to come to a consensus. He told the New York Times last fall that he opposes overturning the filibuster, and White House Press Secretary Jen Psaki told reporters last week that his position “hasn’t changed.” Others have staked their hopes on the budget reconciliation process, which allows for certain tax- and spending-related legislation to pass with a simple majority of 51 votes.

But the Democrats’ democracy reform bill doesn’t have a single Republican co-sponsor, and it likely doesn’t qualify for the reconciliation process. And so Democrats and activists who support Merkley’s push see only two available options: “We see this as the choice between keeping the filibuster and fixing our democracy,” Leah Greenberg, a co-founder of the progressive grassroots group Indivisible, tells me. “We need the Democratic caucus to view it that way, as well.”