It is “not especially controversial among scholars that the modern filibuster is inextricably bound up with Jim Crow” (emphasis original), writes the journalist Zack Beauchamp, in a recent Vox explainer. Leading filibuster critic and former Harry Reid aide Adam Jentleson, in response to President Joe Biden’s support for a “talking filibuster” rule, said, “President Biden’s willingness to reform the Senate filibuster suggests he will not let a Jim Crow relic that has no place in the Constitution stand in the way of the results he promised to deliver.”
Such reinforcing of the Jim Crow-filibuster link has become a common talking point. Barack Obama made the connection in his eulogy for Congressman John Lewis in 2020. And following Biden’s cue, filibuster opponents like Jentleson have accepted as their near-term goal the reforming of the filibuster, requiring Senators to hold court on the Senate floor continually for a filibuster to be sustained.
Their belief is that a bevy of all-nighters would be a deterrent to the promiscuous use of the debate tool under Mitch McConnell and, to a much lesser extent, under Democrats. In its place, we would get the good kind of filibuster, the kind depicted by Jimmy Stewart in Frank Capra’s iconic, Mr. Smith Goes to Washington, where a lone honest Senator holds the floor to save a Boy Scout camp from a greedy developer.
But it’s not the modern filibuster that’s bound up with Jim Crow. It’s the talking filibuster that’s bound up with Jim Crow.
Jentleson wrote in his recently published anti-filibuster polemic, Kill Switch, “In the eighty-seven years, between the end of Reconstruction and 1964, the only bills that were stopped by filibusters were civil rights bills.” Political science professors Sarah Binder and Steven Smith, in their 1996 book, Politics or Principle? Filibustering in the United States Senate, offer different numbers. Between Reconstruction to 1994, they identified “twenty-six measures that would directly change public law” which were “clearly killed because of the ability of a minority of senators to prevent action.” Only nine of those 26 were related to civil rights. And before 1949, “the number of non-civil rights measures blocked by filibuster [was] about as large as the number of civil rights measures killed by filibuster.”
Still, even though civil rights wasn’t always the target of filibusterers, Binder and Smith concluded “by the mid-twentieth century it is clear that civil rights measures as a class were the dominant subject of measures that can be reasonably claimed to have been killed by filibuster.
These anti-civil rights filibusters were talking filibusters.
The era of the post-talking, modern filibuster begins in 1970 when Senate Majority Leader Mike Mansfield, the legendary Montana Democrat who succeeded Lyndon Johnson, began a “two-track” system. Under Mansfield’s change, if a filibuster is launched, the Senate floor remains available for other business. Senators filibustering a bill couldn’t grind the Senate to a halt, blocking all legislation and confirmations.
By 1970, when Mansfield’s plan kicked in, the 1964 Civil Rights Act the 1965 Voting Rights Act and the 1968 Fair Housing Act had passed ending the Jim Crow era de jure if not de facto. The New York Times reported in 1975, as the Senate was debating whether or not to lower the threshold for cloture, that “civil rights legislation is not an issue now. Filibusters are most often used not to protect some regional tradition [sic] but to acquire leverage in the shaping of economic or social legislation.”
However, the creation of a “silent” or “stealth” filibuster made filibustering easier, which is quantifiable by how much the number of cloture votes has risen. Before 1970, the Senate never held more than seven cloture votes over a two-year term. In the 1971-1972 term, the number jumped to 20. The last Senate held a record number of cloture votes: 298, with cloture successfully invoked 270 times. (When Biden said at his press conference that the filibuster was “being abused in a gigantic way,” the example he used was the number of cloture votes from “last year”—when Democrats were in the Senate minority.)
Binder, in the Washington Post, notes that Mansfield didn’t have to hold a vote and change the rules in 1970 to usher in the modern, silent filibuster. He just got unanimous consent to allow other Senate business to proceed on a separate track. In turn, the National Review’s Fred Bauer argues, “No rules change would be required to bring back the ‘talking filibuster.’ All it takes is the majority leader waiving double-tracking.” (Binder says it’s “probably” the case that no formal vote for a new rule is needed.)
So what is Chuck Schumer waiting for? Perhaps he is hesitating because he knows his history. What we know from the Jim Crow era is that a fervently committed political minority can be perfectly willing to talk—not only to directly kill hated legislation, but to gum up the Senate floor, disrupting the ability of the majority to pass other bills and confirm judges.
With a talking filibuster, would there be fewer filibusters than today? Almost definitely. But those filibusters may be more potent. And a Republican Party more inclined to follow the public opinion of its base than of the broader electorate will be comfortable wielding such power.
Newer Republican senators seem to view their job description as providing bombastic content for social media, rather than mastering legislation or constituent services. Witness Ted Cruz during the recent Texas power outage and spike in border crossings. With the Senate full of camera-hogs like Rand Paul, Josh Hawley and Tom Cotton, senators may be more eager to filibuster for the camera than in the days before C-SPAN, when the cantankerous Strom Thurmond and his fellow segregationists filibustered for 60 days in a desperate attempt to stop the 1964 Civil Rights Act.
In a talking filibuster environment, a spate of intense and dramatic floor clashes, dragging on for days and weeks, could well serve the broader interest of those Democrats who want the filibuster gone. The few Senate Democrats who have been supportive of the filibuster may get exasperated enough by the incessant talking and the increased gridlock to conclude the procedural tool has outlived its usefulness and use the nuclear option to vaporize the filibuster altogether. But the opposite may occur: Democrats representing red-to-purple constituencies may decide that partisanship has gotten out of hand and seek restoration of the silent filibuster system.
So if folks are going to push for a talking filibuster, they should understand the history and the risks. They won’t be junking a Jim Crow relic. They will be resurrecting one.