The filibuster is not a relic of the Jim Crow era

Among the falsehoods Joe Biden mouthed at his press conference yesterday was the claim that the Senate filibuster is “a relic of the Jim Crow era.” This line originated with Barack Obama. Biden said he agrees with Obama’s assertion.

As many have pointed out, Biden defended the Senate filibuster for decades. And Obama himself defended it when he was a Senator.

Thus Biden and Obama are both hypocrites.

To make matters worse, both are peddling a false claim. The Jim Crow era extends from the mid-1870s, following the abandonment of Reconstruction by President Hayes, to 1964, when landmark civil rights legislation finally was enacted.

The filibuster predates that era. It was used before the civil war and on issues unrelated to race. For example, Democrats employed the filibuster in 1841 when they opposed legislation to create a national bank. That same year, there was a filibuster over the firing of the Senate printers.

Four years earlier, Whigs had used the filibuster against Democrats who moved to expunge from the record a Senate resolution censoring Andrew Jackson.

In reality, the filibuster was very rarely used against civil rights legislation until near the end of the Jim Crow era. It wasn’t needed for that purpose because only in the late 1940s did Congress muster much enthusiasm for passing such legislation.

Arguably, the most significant use of the filibuster until at least the 1950s occurred in 1917 and had nothing to do with race. That year, a dozen antiwar senators, led by the progressive leader Robert La Follette, filibustered legislation to arm American merchant ships against German submarines. This filibuster led, understandably, to a rule authorizing cloture (the cutting off of debate) by a two-thirds vote.

There was, however, a notable and sickening use of the filibuster against civil rights legislation in the early 1920s. Republicans, at the urging of President Harding, sought to enact an anti-lynching law. Democrats filibustered. Harding eventually had the legislation pulled so that other items on his agenda could get a vote. (In those days, filibusters were of the talking variety and thus held up the Senate.)

The filibuster was used against anti-lynching legislation in the 1930s, as well.

Civil rights legislation was filibustered routinely, and largely without success, in the 1950s and early 1960s. However, it should be clear from the foregoing discussion that the filibuster is not a relic of the Jim Crow era.

In fact, the continued existence of the filibuster owes nothing to race. It persists so that parties can’t parlay thin majorities (or in the present circumstances, no Senate majority) into the enactment of sweeping, society-transforming legislation.

Imagine what Donald Trump could have accomplished in 2017, absent the filibuster. Note, as well, that all or most of it would have been reversed, absent the filibuster, this year. That’s another argument in favor of the filibuster — it prevents wild oscillations in policy.

In sum, Biden and Obama are being dishonest about the filibuster on two levels. Their historical claim is bogus, and their opposition to the filibuster is inconsistent with their past positions on this practice.

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