Synopsis: Systemic racism is alive and well in the South, the part of the country where I have lived my life. My educated opinion is that racism permeates our entire country, but everywhere may not be like Georgia where I saw it first-hand for seven years and which attempts to normalize racism with its voter suppression laws. Here’s the short version of Professor Heather Cox Richardson’s article: When Ronald Reagan talked about the “Welfare Queen (a Black woman who stole tax dollars through social services fraud), when tea partiers called our first Black president a “socialist,” when Trump voters claimed to be reacting to “economic anxiety,” they were calling on a long history. Today, Republicans talk about “election integrity,” but their end game is the same as that of the former Confederates after the war: to keep Black and Brown Americans away from the polls to make sure the government does not spend tax dollars on public services.
Since the Civil War, voter suppression in America has had a unique cast.
The Civil War brought two great innovations to the United States that would mix together to shape our politics from 1865 onward:
First, the Republicans under Abraham Lincoln created our first national system of taxation, including the income tax. For the first time in our history, having a say in society meant having a say in how other people’s money was spent.
Second, the Republicans gave Black Americans a say in society.
They added the Thirteenth Amendment to the Constitution, outlawing human enslavement except as punishment for crime and, when white southerners refused to rebuild the southern states with their free Black neighbors, in March 1867 passed the Military Reconstruction Act. This landmark law permitted Black men in the South to vote for delegates to write new state constitutions. The new constitutions confirmed the right of Black men to vote.
Most former Confederates wanted no part of this new system. They tried to stop voters from ratifying the new constitutions by dressing up in white sheets as the ghosts of dead southern soldiers, terrorizing Black voters and the white men who were willing to rebuild the South on these new terms to keep them from the polls. They organized as the Ku Klux Klan, saying they were “an institution of chivalry, humanity, mercy, and patriotism” intended “to protect and defend the Constitution of the United States… [and] to aid and assist in the execution of all constitutional laws.” But by this they meant the Constitution before the war and the Thirteenth Amendment: candidates for admission to the Ku Klux Klan had to oppose “Negro equality both social and political” and favor “a white man’s government.”
The bloody attempts of the Ku Klux Klan to suppress voting didn’t work. The new constitutions went into effect, and in 1868 the former Confederate states were readmitted to the Union with Black male suffrage. In that year’s election, Georgia voters put 33 Black Georgians into the state’s general assembly, only to have the white legislators expel them on the grounds that the Georgia state constitution did not explicitly permit Black men to hold office.
The Republican Congress refused to seat Georgia’s representatives that year—that’s the “remanded to military occupation” you sometimes hear about– and wrote the Fifteenth Amendment to the Constitution protecting the right of formerly enslaved people to vote and, by extension, to hold office. The amendment prohibits a state from denying the right of citizens to vote “on account of race, color, or previous condition of servitude.”
So white southerners determined to prevent Black participation in society turned to a new tactic. Rather than opposing Black voting on racial grounds—although they certainly did oppose Black rights on these grounds– they complained that the new Black voters, fresh from their impoverished lives as slaves, were using their votes to redistribute wealth.
To illustrate their point, they turned to South Carolina, where between 1867 and 1876, a majority of South Carolina’s elected officials were African American. To rebuild the shattered state, the legislature levied new taxes on land, although before the war taxes had mostly fallen on the personal property owned by professionals, bankers, and merchants. The legislature then used state funds to build schools, hospitals, and other public services, and bought land for resale to settlers—usually freedpeople—at low prices.
White South Carolinians complained that members of the legislature, most of whom were professionals with property who had usually been free before the war, were lazy, ignorant field hands using public services to redistribute wealth.
Fears of workers destroying society grew potent in early 1871, when American newspaper headlines blasted the story of the Paris Commune. From March through May, in the wake of the Franco-Prussian War, French Communards took control of Paris. Americans read stories of a workers’ government that seemed to attack civilization itself: burning buildings, killing politicians, corrupting women, and confiscating property. Americans worried that workers at home might have similar ideas: in italics, Scribner’s Monthly warned readers that “the interference of ignorant labor with politics is dangerous to society.”
Building on this fear, in May 1871, a so-called taxpayers’ convention met in Columbia, South Carolina. A reporter claimed that South Carolina was “a typical Southern state” victimized by lazy “semi-barbarian” Black voters who were electing leaders to redistribute wealth. “Upon these people not only political rights have been conferred, but they have absolute political supremacy,” he said. The New York Daily Tribune, which had previously championed Black rights, wrote “the most intelligent, the influential, the educated, the really useful men of the South, deprived of all political power,… [are] taxed and swindled… by the ignorant class, which only yesterday hoed the fields and served in the kitchen.”
The South Carolina Taxpayers’ Convention uncovered no misuse of state funds and disbanded with only a call for frugality in government, but it had embedded into politics the idea that Black voters were using the government to redistribute wealth. The South was “prostrate” under “Black rule,” reporters claimed. In the election of 1876, southern Democrats set out to “redeem” the South from this economic misrule by keeping Black Americans from the polls.
Over the next decades, white southerners worked to silence the voices of Black Americans in politics, and in 1890, fourteen southern congressmen wrote a book to explain to their northern colleagues why Democrats had to control the South. Why the Solid South? or Reconstruction and its Resultsinsisted that Black voters who had supported the Republicans after the Civil War had used their votes to pervert the government by using it to give themselves services paid for with white tax dollars.
Later that year, a new constitution in Mississippi started the process of making sure Black people could not vote by requiring educational tests, poll taxes, or a grandfather who had voted, effectively getting rid of Black voting.
Eight years later, there was still enough Black voting in North Carolina and enough class solidarity with poor whites that voters in Wilmington elected a coalition government of Black Republicans and white Populists. White Democrats agreed that the coalition had won fairly, but about 2000 of them nonetheless armed themselves to “reform” the city government. They issued a “White Declaration of Independence” and said they would “never again be ruled, by men of African origin.” It was time, they said, “for the intelligent citizens of this community owning 95% of the property and paying taxes in proportion, to end the rule by Negroes.”
As they forced the elected officials out of office and took their places, the new Democratic mayor claimed “there was no intimidation used,” but as many as 300 African Americans died in the Wilmington coup.
The Civil War began the process of linking the political power of people of color to a redistribution of wealth, and this rhetoric has haunted us ever since. When Ronald Reagan talked about the “Welfare Queen (a Black woman who stole tax dollars through social services fraud), when tea partiers called our first Black president a “socialist,” when Trump voters claimed to be reacting to “economic anxiety,” they were calling on a long history. Today, Republicans talk about “election integrity,” but their end game is the same as that of the former Confederates after the war: to keep Black and Brown Americans away from the polls to make sure the government does not spend tax dollars on public services.
Notes: I don’t link to my own books usually, but if anyone is interested, the argument and quotations here are from my second book, “The Death of Reconstruction: Race, Labor, and Politics in the Post-Civil War North,” (Harvard University Press, 2001).
The Senate does not speak for you. Photo: Greg Nash/Pool/Getty Images
As we wait for the Senate parliamentarian to let us know if 41 senators will be able to block a minimum-wage increase that a comfortable majority of Americans supports, it’s as good a time as any to be reminded of the non-representative nature of the Senate Republican Conference.
Daily Kos Elections has come up with a chart displaying the percentage of the population represented by senators from each party since 1990, along with the percentage of Senate votes each party captured (displayed in three-cycle averages, since only one-third of the Senate is up for reelection every two years):
Republican senators haven’t represented a majority of the U.S. population since 1996 and haven’t together won a majority of Senate votes since 1998. Yet the GOP controlled the Senate from 1995 through 2007 (with a brief interregnum in 2001–02 after a party switch by Jim Jeffords) and again from 2015 until 2021.
As Stephen Wolf observed in his write-up of the results, there have been consequences for this disconnect:
Five Supreme Court justices (and many more lower court judges) were confirmed by senates where the GOP majority was elected with less popular support than Democrats. Those right-wing hardliners are now poised to use their control over the court to attack voting rights and preserve Republican gerrymanders while striking down progressive policies. This same minority rule has also paved the way for massive tax cuts for the rich under George W. Bush and Donald Trump that have facilitated an explosion in economic inequality.
Thanks to the filibuster, of course, on many key measures, the 43.5 percent of voters represented by a Republican minority in the Senate have as much clout as the 44.7 percent represented by a Republican majority when the GOP won a trifecta four years ago. That’s why Democrats are trying to cram as much legislation as they can into a budget-reconciliation bill that cannot be filibustered and why the parliamentarian’s ruling on the scope of that bill is such a big deal for Americans trying to survive on minimum wage.
Understanding the realities of our constitutional system means recognizing its injustices, too — along with injustices like the filibuster, which cannot be attributed to the Founders.
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(CNN) — It wasn’t until Yusuf Nur was inside the execution chamber, standing next to a condemned man strapped to a gurney, that he understood why he’d been asked to be present.
The inmate, Orlando Hall, had asked Nur to be his Muslim spiritual adviser in the weeks leading up to his execution by the United States government and to serve as the minister of record when he was put to death on Thursday, November 19, 2020.
“At the beginning, it was not clear to me that being a spiritual counselor would entail being there in the death chamber,” Nur told CNN, “and be there only a few feet from the gurney where they execute the person.”
“But the day of the execution, standing there right beside his gurney where he’s lying, in that death chamber, that’s when I realized why he needed me there,” Nur said. Even with the inmate’s family in an adjoining witness room, “I was the only person he knew there.” Between July 2020 and January 2021, 13 federal death row inmates were executed by the US government in the final months of the Trump administration — the first federal executions since 2003, when an informal moratorium halted the death penalty for 17 years. It was a historic series of executions. Prior to the hiatus, only three federal inmates had been executed since 1988, making this schedule of executions the most prolific in decades. The 10 executions that took place in 2020 alone were the most federal civilian executions in a calendar year since the 1800s, according to the Death Penalty Information Center.
Many of the inmates had spiritual advisers like Nur, who ministered to them in the weeks before they were executed and stood next to them inside the execution chamber at the Federal Correctional Complex in Terre Haute, Indiana.
Four advisers who served as ministers of record for six of the 13 inmates recently spoke to CNN. They described their relationship with the inmates, however brief, and what it was like to watch them be put to death. Despite coming from different faiths and walks of life, they described similar experiences and a confluence of emotions — both a sense of duty to be there for the inmates and an undercurrent of anger or sadness at what they witnessed.
And while they were clear they did not condone the violent crimes of which the inmates were convicted, each of the spiritual advisers who spoke to CNN believe the death penalty is wrong.
For Father Mark O’Keefe, a Catholic priest and a professor of moral theology, being the minister of record for Dustin Honken’s execution only affirmed that belief.
“I witnessed them killing someone, and I knew him, and I had a connection with him,” O’Keefe said. “It made the death penalty very, very real to me, and the moral wrong of it clear to me at a deeply personal level.”
Could I stand there and watch somebody being killed and not want to stop it?
Sister Barbara Battista
“The Justice Department upholds the rule of law — and we owe it to the victims and their families to carry forward the sentence imposed by our justice system,” Barr said in a statement at the time.The death penalty remains legal in 28 states, though governors in California, Oregon and Pennsylvania have imposed moratoriums on executions in their states. But the federal government has the authority to pursue capital punishment in all 50. A series of legal challenges pushed the first executions back until last July, when Daniel Lewis Lee, who’d been convicted of three murders, was put to death. A dozen executions followed over the next six months, culminating with the execution of Dustin Higgs on January 16, just days before Donald Trump left office.
“I wasn’t surprised at all that Trump did it,” said Rev. Bill Breeden, a retired Unitarian Universalist minister who’s been the spiritual adviser to death row inmate Chadrick Fulks for more than a decade. “I was surprised at the number of the ones he did and the persistence of it.”
Breeden has been working with prisoners since the 1990s. That work, he said, eventually led to a relationship with Fulks, who Breeden said was “like a son” to him. When the death penalty was set to resume, he feared Fulks would be executed.
Fulks was spared, but Breeden, a vocal opponent of the death penalty, knew he’d be at the prison gates, protesting as many executions as he could. And that was before he became the minister of record to Corey Johnson, who was executed in January for murdering seven people during a 1992 killing spree.
Sister Barbara Battista of the Sisters of Providence, a congregation in nearby Saint Mary-of-the-Woods, Indiana, felt similarly. As her congregation’s justice promoter, capital punishment became a focus of her work soon after the executions were announced. She and others formed the Terre Haute Death Penalty Resistance and committed themselves to “making as much noise as we possibly could,” she said. As each execution was carried out, the group stood near the prison, carrying signs and protesting.
“There was a sadness in me, and an anger, too,” said Battista. “It was like, we have to make sure people know this is happening.”
Battista said protesters had tried to honor pain on all sides of the executions, including the families of the inmates’ victims. While they stood vigil outside the prison, they tried to recite the victims’ names to acknowledge their families’ suffering. Another group, she said, had signs printed that included the victims’ names.
‘I can’t pass this cup’
When Keith Nelson first asked Battista to be the minister of record at his execution, she prayed about it, she told CNN.
That afternoon, she’d learned her oldest brother was killed in a car accident, she said. Despite her grief, she wanted to say yes. Still, as a physician’s assistant, she wondered if standing by as someone was killed would be “unnatural.”
“Could I stand there,” she wondered, “and watch somebody being killed and not want to stop it?”
Nelson was sentenced to death for the kidnapping, rape and murder of 10-year-old Pamela Butler in 1999. Nelson abducted her while she was rollerblading in front of her Kansas home, according to the Justice Department, and Nelson confessed to strangling her with a wire.
Battista did not condone the inmate’s actions, she said. But she ultimately accepted Nelson’s request, because, she said, “As a Catholic Christian, I firmly believe that all persons deserve my compassion, deserve to be treated with dignity, no matter what.”
Nur, a business management professor, first received the request to be Orlando Hall’s spiritual adviser through Breeden, who’d reached out to Nur’s Bloomington mosque searching for one on Hall’s behalf.
The two met at Breeden’s home, in a stretch of forest in southern Indiana, and discussed what the role would involve.
“I said, as you take this on, he’s very likely going to ask you to be in the death chamber with him,” Breeden recalled. “And I said if you don’t feel like you can do that, I won’t respect you any less.”
Nur couldn’t understand. “I kept thinking, what will he get of me being there? In the back of my mind, I was hoping that he would not ask me to be there.”
Hall was sentenced to death for the 1994 kidnapping, rape and murder of 16-year-old Lisa Rene. Hall, along with several accomplices in a marijuana trafficking operation, kidnapped her from her Arlington, Texas, home while searching for her brother. After repeatedly raping her, they dug a grave in an Arkansas park, beat her with a shovel and buried her alive, according to the Justice Department.
Hall embraced Islam after his conviction, Nur said, and they spent a lot of time discussing the Quran. But it was “surreal” and “awkward,” Nur said, to talk to Hall about dying. At 49, he was in good shape and looked much younger, Nur said, and it was strange to discuss his impending death.
Just as Breeden predicted, Hall asked Nur to be with him during the execution. Nur still didn’t understand why, but he said yes.
The execution chamber
Father O’Keefe, the Catholic priest, regularly offered mass at the Terre Haute prison, but he generally did not do so on death row. It wasn’t until he filled in for another priest that he first met Dustin Honken.
Honken was sentenced to death for killing five people in 1993 — including Lori Duncan, a single mother, and her daughters, Kandi and Amber, ages 10 and 6 — in an effort to hide his multistate methamphetamine drug operation.
The two only met about four times, O’Keefe said, but he was struck by Honken’s “sincere faith,” and he thought Honken “wanted a deeper relationship with God.” But their own relationship was short lived, and when they said goodbye for what O’Keefe believed would be the last time, Honken had been scheduled to be executed.
About two weeks before Honken’s execution, Father O’Keefe received a request from the inmate through his lawyers that he be the minister of record at his execution. O’Keefe didn’t hesitate to say yes.
“It’s the ministry of priests to accompany the dying,” he said. He also recognized “spiritual depth” in Honken, and said the inmate believed a priest “would give him a sense that God was present to him in that final moment.”
“I couldn’t deny that to him,” O’Keefe said.
O’Keefe acknowledged the suffering of the families of Honken’s victims. He said he agreed to be Honken’s minister of record because the inmate was a human being who deserved to have someone with him at the end.
“It doesn’t change the crime he committed, and it doesn’t change the terrible suffering of that family,” he said. “Those families — what a horrible thing to live with all these years.”
“But killing Dustin didn’t change that…his death changed nothing,” he said.
The day of the execution, O’Keefe said he had expected to spend a significant amount of time with Honken, but in the end they only had a few minutes, with a piece of glass between them.
“We were both upset about that, but both of us knew, don’t fight this because there’s not enough time,” he said.
O’Keefe heard Honken’s confession, and they spoke briefly. Honken was mostly concerned about his family.
“He told me he was at peace,” O’Keefe said, “and that he was more concerned about his daughter,” who had come to visit her father but would not attend the execution.
From there, O’Keefe was escorted into a viewing room. He waited there until he was taken into the execution chamber itself, where Honken was already strapped to the gurney.
“It was sterile,” said O’Keefe, a statement echoed by all the ministers of record. “The color, the tile — it could have been an old hospital room. And all the accoutrements of trying to heal somebody were there — the oxygen monitor, what appeared to be the heart monitor, the IV.”
“But none of that was to save him,” the priest said. “It was all to kill him.”
All the spiritual advisers who spoke to CNN described largely the same experience, with slight deviations. Each was told to stand next to a piece of tape by the gurney. They were given an opportunity to speak with the inmate, pray, give last rites, read scripture or recite a declaration of faith. Prison officials, witnesses from the media, the inmates’ family and friends, and the victims’ family watched from adjacent viewing rooms.
Corey Johnson, who didn’t read well, according to Breeden, had asked Breeden to read his last words, the minister said. But Breeden said he was not allowed to and that an official said Johnson had to read the words.
Johnson’s lawyers released the inmate’s final words after the execution.
“I would have said I was sorry before, but I didn’t know how. I hope you will find peace,” he said. “To my family, I have always loved you, and your love has made me real. On the streets, I was looking for shortcuts, I had some good role models, I was side tracking, I was blind and stupid. I am not the same man that I was.”
And then the lethal injection began.
The ministers of record mostly described silence as the executions they each witnessed were carried out.
Breeden said Johnson turned to the witness room used by his family and said, “I love you.” Breeden said he heard Johnson’s brother yelling, “I love you, bro. I love you, bro!”
The inmate’s breathing slowed until someone came from an adjacent room and used a stethoscope to check Johnson’s pulse before he was declared dead.
In their statement, Johnson’s attorneys said they saw him as a “gentle soul” who had tried to earn his GED.
“We wish also to say that the fact Corey Johnson should never have been executed cannot diminish the pain and loss experienced by the families of the victims in this case,” they said. “We wish them peace and healing.” The executions gave some families the opportunity to close a painful chapter of their lives. After William LeCroy was executed for the 2001 murder of Joann Lee Tiesler in Georgia, her father said in a statement, “justice was finally served.”
“I regret that it took nineteen years to get to this point, but it has brought some needed closure to Joann’s family and friends,” Tom Tiesler said. Not all the victims’ families supported the executions. Despite then-Attorney General Barr’s statement the US was seeking justice for the victims and their families, Earlene Peterson, whose daughter, granddaughter and son-in-law were tortured and killed by Daniel Lewis Lee, told CNN prior to his execution that she didn’t want it done in her name.
“It would shame my daughter,” she said, “that someone has to die for her.”
Nur and Battista would both end up going back to the execution chamber to serve as the ministers of record for two other inmates: Dustin Higgs and LeCroy, respectively.
“To tell you the truth, I really didn’t want to go back there,” Nur said of receiving the request from Higgs, the last inmate to be executed. “But what can you do? That’s the least you can do for somebody in that position.”
Like the other spiritual advisers, Nur had always been opposed to capital punishment. After witnessing Hall’s execution, however, something shifted.
“From the moment I realized what was happening, that the death penalty issue is no longer on my periphery, that I am facing it, I became committed to the abolition of the death penalty,” he said. “This horror has to stop.”
Nur tested positive for Covid-19 about a week after Hall was put to death, and while he was asymptomatic, Nur believes he contracted the virus during the execution. He later lent his account to a complaint in which other inmates at Terre Haute argued for halting the remaining executions, citing the risk posed by Covid-19. The effort was unsuccessful.The executions drew additional scrutiny because of the fact they were carried out during the pandemic. Robert Dunham, the executive director of the Death Penalty Information Center, previously told CNN the executions were possible super spreader events because of the number of people involved.
“The decision to move forward with all these super spreader events in the midst of a pandemic…is historically unprecedented,” Dunham said.After Hall’s execution, at least six members of the execution team and more than a dozen Terre Haute prison staffers tested positive for Covid-19, according to a motion filed in court. Attorneys for Johnson also called on the Justice Department to withdraw his execution date after he tested positive for Covid-19 and said proceeding exhibited “reckless disregard for the lives and safety of staff, prisoners and attorneys alike.”
In his confirmation hearing before the Senate, Biden’s pick for Attorney General, Judge Merrick Garland, said the death penalty had given him “great pause.”
As an associate deputy attorney general, Garland was involved in the decision to seek the death penalty in the case against Oklahoma City bomber Timothy McVeigh. During his February confirmation hearing, Garland said he supported capital punishment in that case and he did not regret pursuing it.
But he had developed concerns over the death penalty in the last two decades, he said. He pointed to the exonerations of wrongfully convicted people, the arbitrary nature with which the death penalty is applied and its “disparate impact on Black Americans and members of other communities of color.”Garland said he expected Biden would be “giving direction in this area” and indicated it was “not at all unlikely” the Department would return to the “previous policy.”
“We need to abolish capital punishment,” Battista said. “Yes, we need President Biden to affect a moratorium, but that’s just a stop gap measure.” She’s hopeful, pointing to states like Virginia, which is on the verge of outlawing capital punishment. “It gives me great hope,” she said. According to the Death Penalty Information Center, legislators in a number of states, including California and Kansas, among others, have recently introduced bills to abolish the death penalty in their states.
I was honored to be there. But I was also ashamed to be there, because this is done with my taxes.
Rev. Bill Breeden
O’Keefe has also experienced a shift after witnessing Honken’s execution. He’d always believed the death penalty was wrong. But as an academic, he said it was something he’d largely only thought about in theory.
“Intellectually, I know the Catholic Church’s arguments against the death penalty and I adhere to those. I am against the death penalty,” he said. “But I must admit, for me, it was always kind of abstract.”
But witnessing Honken’s execution changed something. The next day, his emotions caught up to him, and he realized what he had seen.
“It struck me that being present when another human being is killed just ought not to be,” he said. “That’s when my belief against the death penalty became real.”
Following Johnson’s death, Breeden said he turned to the execution team and told them, “I would be remiss in my role as a minister if I did not advise you to find another line of employment before you lose your souls.”
Outside, Breeden spoke to reporters and the group of protesters who’d held vigil nearby.
“I was honored to be there,” he told them, according to a video of his remarks that was streamed live on Facebook. “But I was also ashamed to be there, because this is done with my taxes.”
CNN’s Christina Carrega contributed to this report.
Democrats can’t kill the filibuster. But they can gut it.
Three reforms Manchin and Sinema might consider
Democrats won both Georgia Senate seats in January’s runoffs, giving them control of both houses of Congress and the White House for the first time in a decade. But their ability to advance legislation — from raising the federal minimum wage to democracy reforms in the John Lewis Voting Rights Advancement Act — can be thwarted by the Senate’s 60-vote supermajority filibuster rule.
Progressives’ anger at Minority Leader Mitch McConnell (R-Ky.) and his caucus, who use the filibuster to block every initiative they can, is nearly matched by their frustration with Democratic Sens. Joe Manchin III (W. Va.) and Kyrsten Sinema (Ariz.), whose opposition to getting rid of the filibuster means Democrats are stuck with it, since they’d need all 50 votes in their caucus, plus Vice President Harris as a tiebreaker, to do it. Last month, the progressive No Excuses PAC, whose leaders helped elect Rep. Alexandria Ocasio-Cortez (N.Y.) in 2018, said Manchin and Sinema “stand in the way of progress” by abetting Republican efforts “to shrink their own party’s pandemic relief, climate, and economic investment plans.” The political action committee has talked up primary challenges to both of them to show “‘how angry Democratic primary voters are going to be’ if they continue to support the filibuster.”
Manchin hasn’t budged, though. Monday, when asked if he’d reconsider his stance on eliminating the filibuster, he shot back: “Jesus Christ, what don’t you understand about ‘never’?”
Democrats are right to see the urgency: Republican state lawmakers around the country are moving to enact voter suppression measures that will, if passed, put the slender Democratic majorities in the Senate and House of Representatives in jeopardy in 2022 and beyond. Without democracy reform, and with the Supreme Court’s recent assaults on the Voting Rights Act, sticking with the filibuster could make it nearly impossible for the Biden administration to pursue its agenda.
But Democrats should proceed with caution: In 2001, I warned that if Republicans harangued Sen. Jim Jeffords (Vt.) over his apostasy on their party’s policy priorities, they would regret it. He would switch parties and, in a 50-50 Senate, shift the Senate majority. The next month, it happened. The same concern now applies to Democrats with Manchin. Push too far, and the result could be Majority Leader McConnell, foreclosing Democrats’ avenue to pursue infrastructure, tax reform and health reform legislation.
So, what can Democrats do?Senate Majority Leader Charles E. Schumer (D-N.Y.) demurred when asked on March 2 if he would support ending the legislative filibuster. (The Washington Post)
For a West Virginia Democrat, heavy criticism from key members of his own party, up to and including President Biden, might wind up working to Manchin’s advantage. That was true of an earlier apostate, Sen. Richard C. Shelby (Ala.), who’s been reelected several times after switching from Democrat to Republicanin 1994, after butting heads with President Bill Clinton.
Instead of naming and shaming them, Democrats might consider looking at what Manchin and Sinema like about the filibuster. Sinema recently said, “Retaining the legislative filibuster is not meant to impede the things we want to get done. Rather, it’s meant to protect what the Senate was designed to be. I believe the Senate has a responsibility to put politics aside and fully consider, debate, and reach compromise on legislative issues that will affect all Americans.” Last year, Manchin said, “The minority should have input — that’s the whole purpose for the Senate. If you basically do away with the filibuster altogether for legislation, you won’t have the Senate. You’re a glorified House. And I will not do that.”
If you take their views at face value, the goal is to preserve some rights for the Senate minority, with the aim of fostering compromise. The key, then, is to find ways not to eliminate the filibuster on legislation but to reform it to fit that vision. Here are some options:
Make the minority do the work. Currently, it takes 60 senators to reach cloture — to end debate and move to a vote on final passage of a bill. The burden is on the majority, a consequence of filibuster reform in 1975, which moved the standard from two-thirds of senators present and voting to three-fifths of the entire Senate. Before that change, if the Senate went around-the-clock, filibustering senators would have to be present in force. If, for example, only 75 senators showed up for a cloture vote, 50 of them could invoke cloture and move to a final vote. After the reform, only a few senators in the minority needed to be present to a request for unanimous consent and to keep the majority from closing debate by forcing a quorum call. The around-the-clock approach riveted the public, putting a genuine spotlight on the issues. Without it, the minority’s delaying tactics go largely unnoticed, with little or no penalty for obstruction, and no requirement actually to debate the issue.
One way to restore the filibuster’s original intent would be requiring at least two-fifths of the full Senate, or 40 senators, to keep debating instead requiring 60 to end debate. The burden would fall to the minority, who’d have to be prepared for several votes, potentially over several days and nights, including weekends and all-night sessions, and if only once they couldn’t muster 40 — the equivalent of cloture — debate would end, making way for a vote on final passage of the bill in question.
Go back to the “present and voting” standard. A shift to three-fifths of the Senate “present and voting” would similarly require the minority to keep most of its members around the Senate when in session. If, for example, the issue in question were voting rights, a Senate deliberating on the floor, 24 hours a day for several days, would put a sharp spotlight on the issue, forcing Republicans to publicly justify opposition to legislation aimed at protecting the voting rights of minorities. Weekend Senate sessions would cause Republicans up for reelection in 2022 to remain in Washington instead of freeing them to go home to campaign. In a three-fifths present and voting scenario, if only 80 senators showed up, only 48 votes would be needed to get to cloture. Add to that a requirement that at all times, a member of the minority party would have to be on the floor, actually debating, and the burden would be even greater, while delivering what Manchin and Sinema say they want — more debate.
Narrow the supermajority requirement. Another option would be to follow in the direction of the 1975 reform, which reduced two-thirds (67 out of a full 100) to three-fifths (60 out of 100), and further reduce the threshold to 55 senators — still a supermajority requirement, but a slimmer one. Democrats might have some ability to get five Republicans to support their desired outcomes on issues such as voting rights, universal background checks for gun purchases or a path to citizenship for Dreamers. A reduction to 55, if coupled with a present-and-voting standard would establish even more balance between majority and minority.
In a 50-50 Senate, and with the GOP strategy clearly being united opposition to almost all Democratic priorities, Biden and Majority Leader Charles E. Schumer (N.Y.) need the support of Manchin and Sinema on a daily basis. They won’t be persuaded by pressure campaigns from progressive groups or from members of Congress. But they might consider reforms that weaken the power of filibusters and give Democrats more leverage to enact their policies, without pursuing the dead end of abolishing the rule altogether.
Correction: An earlier version of this story referenced 40 senators as “two-thirds” of the full Senate. Forty senators equal two-fifths.