I think it is telling that the word filibuster is derived from the Dutch word “vribuyter” meaning “pirate”. That is exactly the function of the filibuster, the taking of something that doesn’t belong to you by force.

A bit of history is needed for context. The Senate was designed to have open-ended debate on bills until all had had their say on the issue at hand. In the 18th and early 19th century the minority party became very aware of the usefulness of this quirk in the Senate rules to prevent a disagreeable measure to come to a vote. Speeches could be drawn out ad nauseum preventing any resolution to the issue at hand. As early as 1789 the tactic was being employed and criticized by the victimized majority, but it wasn’t until the 1850’s that the filibuster earned its name, passing into the national lexicon.

There were no rules that prevented the endless speechifying, no way to take the podium away and move legislation forward. As early as 1841 calls for a rules change began. While Democrats tried to prevent the passage of the establishment of a national bank, Whig Senator Henry Clay threatened a rules change that would limit Senate debate. He failed in the effort, but the idea would never completely go away. As the country exploded in size and the Senate became larger and busier as the turn of the century approached, the need to shorten the legislative time frame became more critical for it to be in the least bit efficient and calls for limiting debate began to grow louder. The endless speeches could bring the business of the Senate to a grinding halt allowing the minority to extort concessions from the majority simply to get anything done at all.

In 1917 under President Woodrow Wilson the first cloture rule passed. Senate Rule 22 stated that with a two thirds vote the Senate could end debate and move forward to a vote on a given legislation. The rule would not be invoked until 1919 when a small minority of senators objected to the Treaty of Versailles. That successful use of cloture would prove to be an outlier in the extreme, as it would be used effectively only five times in the next four decades. The filibuster was still an effective tool for delaying legislation and carving out concessions by the minority.

In 1975 the number of votes required for cloture was reduced to three fifths, or 60 senators, but it still proved a largely unrealistic threshold and cloture was relatively rare. Because the filibuster effectively shut down all Senate business, a two-track concept became the norm. The threat of a filibuster was all that was needed to require a cloture vote so the Senate was not tied up with the endless speeches and other business could be addressed in the interim. It was a sea change, as now the filibuster had no cost to the minority, no real effort required and it effectively raised the threshold on all legislation to 60 votes to pass instead of the simple majority that the Founders had designed. A carve-out came to allow federal nominations to go forward with a simple majority, but legislation was watered down to things that were uncontroversial, challenging the idea that elections had consequences.

Today, a party that has been brought to power by a very significant percentage of the electorate can find the ideology that brought them to power impossible to implement. The effect of this is the majority party is the majority in name only unless voted in by numbers so overwhelming they are completely unrealistic in a country as divided as ours. As party increasingly becomes the driving force in politics over policy, a 7% win is an insignificant margin. The majority party has very little more power than the minority that blocks their agenda.

This is why the filibuster has become the most important issue in American Democracy today. While the idea of unlimited debate in the Senate was a seminal concept to its formation, the evolution of the concept has undermined the idea of democracy itself. Before the two-track system became the norm, there was a political cost to standing before the Senate and railing on and on against a bill that had widespread public support. While eliminating the filibuster altogether seems like an idea that is dead in the water, the reinstatement of the talking filibuster is gaining some momentum.

The idea is that if you commit to a filibuster that ties up the Senate for your pet grievance and stops the legislative process in its tracks, this may have political consequences that you may not want to bear. Once the speechifying is abandoned a simple majority is all that is required to pass the legislation. It is only when cloture is invoked to end debate that the 60 vote threshold is required. A senator will then have to make the political calculation of whether their grandstanding obstruction benefits their long term political objectives. In other words, it re-institutes a cost to the filibuster. Currently there is none. In the current Senate mode one need only threaten a filibuster and cloture is automatically invoked. It is an unrealistic standard that was never foreseen by the Founding Fathers. Though in fact a representative republic, not a democracy, policy no longer represents the majority of voters. Policy requires what is now referred to as a “super majority” that effectively ends progress toward what the public has found to represent their wants and needs.

Currently the Republicans object to any change to Senate rules that would require political courage to pursue minority obstruction. This effectively makes the United States a country of minority rule, and Republicans have a vested interest in that balance. Republicans are the minority in this country and have been for some time, currently numbering approximately 25% of the electorate according to the Pew Research Center. They have held that distinction for about the last two decades, and their numbers are dwindling. They have managed to maintain as much power as they have largely through rigging the deck with voter suppression and gerrymandering, the outcomes not representative of the total votes being cast. North Carolina as one example regularly casts more votes for Democrats than Republicans and yet wind up with Republican representation.

Any threat to minority rule is a threat to the Republican Party, the threat being that they will then be held to a universal standard that will have them appropriately representative of the number of Americans that support them. That would be a political disaster for them, and they will fight this with everything they have.

Americans frequently have a positive view of the filibuster, their only real exposure to the workings of it being presented by a plucky assistant to a wet-behind-the -ears Senator caught up on the wrong side of a nefarious scandal in the movie “Mr. Smith Goes to Washington”. Jimmy Stewart is over his head and Jean Arthur uses her years of experience that have left her jaded but capable enough to guide the neophyte in his fight against Claude Raines and the big money that moves policy.

It’s a charming tale as only Frank Capra can tell one, with just enough grit to make the fantasy seem plausible. Capra had brilliantly navigated the motif in “It’s A Wonderful Life”. The grit was supplied in a number of scenes, but none more memorably than a close up of the beaten Stewart at a local bar, praying to a God he doesn’t know well to show him a way. Stewart, just back from the war flying combat missions against the Nazis, brings a new gravitas to his screen persona not seen before and is deeply moving in the scene. It’s powerful, but in the end the movie is a fantasy about a sweet but clumsy guardian angel guiding Stewart’s character back to the land of the living, fulfilling the role of the Ghost of Christmases Past. All will end well, and “Mr. Smith…” is no different. A fantasy it most assuredly is. In the movie the filibuster is really the star, the mechanism through which powerful people gone bad can be held to account, but the actual use of the filibuster has a much grimmer past.

The longest filibuster in Senate history occurred in 1957. Strom Thurmond was a senator from South Carolina representing a Southern Democratic Party very different from today. The legislation in Thurmond’s sights was the Civil Rights Act of 1957 designed to protect minority rights to the vote. Southern Democrats opposed it characterizing it as an attack on their states rights to conduct elections in the ways they saw fit. In the end the southern states came to an agreement not to filibuster the new law as an attempt to send it back to committee had failed 66-18 and it was clear it would pass. Thurmond went rogue and chose to go solo. He took his filibuster very seriously, taking multiple steam baths prior to his one man show to eliminate fluids from his body, allowing him to go without restroom breaks for the long stretch that would be necessary. He ate a large steak dinner beforehand and had snacks prepared and available to him throughout his assault. He read the Declaration of Independence, the Bill of Rights, each states election laws, George Washington’s Farewell Address and ultimately set the longevity record for filibusters at 24 hours and 18 minutes. Two hours later the legislation passed.

Civil rights were also the intended target of the longest coordinated filibuster in Senate history. President Lyndon Johnson had used his considerable powers of persuasion to craft and push the Civil Rights Act of 1964. This time the southern Democrats were united in opposition as the bill was far more sweeping and powerful, representing a serious attack on the Jim Crow status quo they had come to expect and enjoy. The bill easily passed the filibuster-free House, but when it landed on the Senate schedule it ran smack into a coordinated filibuster, well planned and well manned. The southern Democrats kept the filibuster going for sixty days, including seven uncharacteristic Saturday work days. During the public assault by the southerners, Senate Democratic Whip Hubert Humphrey along with his Republican counterpart Thomas Kuchel worked mercilessly behind the scenes building the consensus necessary to find the 67 votes that would be required to pass the bill. They would succeed, marking the first time a filibuster aimed at preventing civil rights for minorities had been defeated. The bill was seen as so important that Senator Engle of California, approaching a certain death from an inoperable brain tumor and unable to speak raised a weakened arm and pointed to his right eye, indicating his vote in the affirmative. The bill passed 71 to 29.

Civil rights have often been the target of the filibuster, and the defense of it is once again an assault on our brothers and sisters of color.

Mitch McConnell has promised an all out war if the filibuster is threatened in any way. This is completely appropriate as it is McConnell who has taken the filibuster from the occasional tactical parry to an unpleasant piece of legislation to the standard response to every piece of legislation by the opposition. From 1980 -1990 the Senate averaged 10 cloture invocations per session (2 years). Between 1990 and 2000 it ticked up to about 11. In the sessions between 2000 and 2010 it jumped to almost 30. Then came 2010 to 2020. Cloture invocations averaged over 125 per session.

Mitch McConnell became the Senate Majority Leader in 2015. Prior to that he was the Senate Minority Leader starting in 2006.

This past Tuesday McConnell threatened a “scorched earth” policy in the Senate as the minority would create every obstacle possible to a functional legislature if the Democrats dared to touch the filibuster in any way. The now expected hypocrisy by the Republicans is inherent in this declaration, as it was McConnell who was able to end the practice of the filibuster as it applied to all nominations other than those for the Supreme Court, enabling the grotesque parade of unqualified cabinet appointments and federal judgeships that Trump installed for his own purposes.

A threat of a scorched earth policy by the minority leader seems largely redundant. He has pursued that very idea for well over a decade, and largely been successful at it. The Senate has not been a functional part of our government for a very long time, and the biggest impact has been the filibuster, and its biggest champion has been Mitch McConnell.

While Joe Biden is at his core a creature of the Senate, his reticence to support the deconstruction of the filibuster is starting to break as it becomes clear that it has turned into a weapon against democracy itself. With Joe starting to crack, and even the likes of Joe Manchin of West Virginia considering modifications to the practice, it seems possible that the United States might be saved after all. Nothing less than that is at stake.

This, however, is not a done deal.

We can still lose it all.