Mitch McConnell is wrong. Here’s the filibuster’s ‘racial history.’

Mitch McConnell is wrong. Here’s the filibuster’s ‘racial history.’

By 

Sarah Binder

March 25, 2021 at 7:36 a.m. GMT+9

From defending slavery to protecting segregation, the filibuster has been heavily used to block civil rights

Senate Minority Leader Mitch McConnell (R-Ky.) listens Tuesday as Republican leaders talk to the media after their weekly lunch at the Capitol. (Tasos Katopodis/Getty Images)

Senate Republican leader Mitch McConnell (Ky.) argued Tuesday that the Senate filibuster “has no racial history at all. None. There’s no dispute among historians about that.”

That’s false. Historians know the filibuster is closely intertwined with the nation’s racial past and present. To be sure, senators have filibustered issues other than civil rights over the Senate’s history. But it is impossible to write that history without recognizing the centrality of race.

Here’s what you need to know about the filibuster’s racial past.

First, some history

The Constitution empowers each chamber of Congress to select its own rules. When the House and Senate adopted their respective rule books in 1789, both sets of rules included a motion known as the “previous question motion.”

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Today, when a House majority is ready to vote on a pending matter, a member moves the previous question. If a majority votes in favor of the motion, debate ends and the chamber advances to a vote on the underlying measure.

But that’s not the way “the previous question” worked in the first years of the House and Senate. Back then, lawmakers had not yet weaponized the rule into a parliamentary tool for empowering a simple majority to cut off debate. As such, in 1805, Vice President Aaron Burr in his final address to the Senate advised senators to eliminate the previous question motion from their procedural arsenal. Senators heeded his advice and dropped the rule in 1806.

Did issues affecting race, civil rights or slavery drive that 1806 decision? No. But keep in mind: It is highly unlikely that any senator in 1806 anticipated, let alone understood, the consequences of eliminating the previous question motion.

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House lawmakers figured it out. Just a few years later, a House majority in 1811 voted to set a new meaning of the rule: If a simple majority voted to move the previous question, debate ended and the House moved to a vote on the underlying matter. When 19th-century Senate leaders tried to adopt the new House version of the previous question motion, filibusters blocked their moves. In other words, senators kept talking to avoid a vote — and the Senate lacked any procedural move to shut them down.

Segregationist senators were early and frequent adopters of the filibuster

Foremost among filibustering senators in the 19th century were the proslavery faction, led by John C. Calhoun of South Carolina, who exploited the Senate’s lax rules of debate to block measures that threatened Southern White landholders’ ability to depend on slave labor.

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When Steven Smith and I dug up the history of the filibuster in “Politics or Principle? Filibustering in the U.S. Senate,” we identified 40 filibusters (at least those that left footprints for historians to record) between the first one in 1837 and the creation of the cloture rule in 1917, which enabled the Senate to shut down debate with the support of two-thirds of senators present and voting. Of those 40, at least 10 targeted racial issues — including filibusters over statehood for California and Kansas and, after the Civil War, protecting Southern Blacks’ voting rights.

The filibuster as a ‘Jim Crow relic’

To study filibusters after the Senate created cloture in 1917, Smith and I counted up measures “killed” by a filibuster. We sought evidence that a majority of the House, a majority of the Senate, and the president favored a measure — and yet it still died after debate on the Senate floor.

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In doing so, we found that, of measures derailed by filibusters in the 20th century, civil rights measures dominated. Of the 30 measures we identified between 1917 and 1994, exactly half addressed civil rights — including measures to authorize federal investigation and prosecution of lynching, to ban the imposition of poll taxes and to prohibit discrimination on the basis of race in housing sales and rentals.

Keep in mind, the 20th century filibuster scorched many civil rights measures beyond those that it killed outright. Senators secured passage of several celebrated measures to addressing racial equity — such as the Civil Rights Act of 1964 — after defeating filibusters by segregationist senators. That history is surely why former president Barack Obama last year called the filibuster a “Jim Crow relic.”

Attitudes on race continue to color contemporary Senate filibusters. Just last year, Sen. Rand Paul (R-Ky.) temporarily halted passage of a measure that would make lynching a federal hate crime.

Opposition to civil rights also influences fights over reforming Senate rules

Battles over reforming the Senate’s cloture rule have also often been proxy wars over civil rights. Smith and I identified a key vote associated with each of the dozen major efforts to reform Senate debate rules between 1918 and 1994. In three-quarters of the reform efforts, senators’ positions on civil rights shaped their votes on reform — even after taking account of other forces that might influence their votes. Only after senators defeated civil rights filibusters in the 1960s did attitudes toward rule reform become less tied to attitudes on civil rights.

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Today, senators’ positions on racial matters tend to fall along party lines. That means legislative battles over measures to address racial equity — including police reform and voting rights — invariably divide senators along party lines.

To be sure, not every filibuster today — let alone historically — touches on racially charged issues. But it is impossible to recount the history of the filibuster without recognizing its profoundly racial history.

Update, March 24, 2021:

Doug Andres, the GOP leader’s press secretary, later clarified that McConnell was referring specifically to the origins of the filibuster, and McConnell himself noted the next day, “The filibuster predates the debates over civil rights.” That’s factually accurate, as this post noted above: The procedural move that made the filibuster possible was not directly tied to a policy question, civil rights or otherwise.

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But the GOP leader was responding to a reporter’s question about the senator’s previous statement that “Multiple fact-checkers have torn into this simplistic notion that the rules of the Senate are rooted in racism,” and he explicitly responded that the filibuster had “no racial history. None.”

“Roots” could be interpreted to mean more than “origins,” as could “no racial history.” A look at history shows that conflict over race and slavery shaped how the filibuster developed, which the GOP leader’s press secretary acknowledged when speaking with TMC.