Article of the Day: April 16, 2021

The filibuster can be conquered: I know — I helped do it

It’s now conventional wisdom that the filibuster — or just the threat of a filibuster — will likely raise havoc with the core of President Biden’s legislative agenda: voting rights, immigration reform, gun control and climate change. Pundits of all stripes are wringing their hands at the prospect of senatorial deadlock. But only a handful have proposed any concrete actions to avoid this legislative cataclysm.

There is one shining example, however, when the filibuster — against all odds — was conquered.

The historic Civil Right Act of 1964 never would have survived in its final form unless the bipartisan pro-civil rights coalition found a way to defeat Sen. Richard Russell (D-Ga.) and his band of 18 Southern Democrats. More to the point, what happened then — 57 years ago — provides a useful roadmap for today.

A few basic facts:

All the smart money in 1964 said the filibuster, led by Sen. Russell, could not be defeated. The reasons were obvious. In 1964, Senate Rule XXII provided that 67 senators were needed to limit debate. Optimistic nose-counts indicated the bipartisan pro-civil rights forces lacked 12 “critical” votes to reach 67.

These votes could only be found from among traditional mid-western Republicans and conservative western Democrats. In their wildest imaginings, these conservative senators never considered supporting legislation to expand federal authority over personal property rights in granting equal access in restaurants, hotels, and jobs.

Worse yet, if the pro-civil rights forces seriously weakened these provisions as the price for ending the filibuster — the traditional strategy that Sen. Lyndon Johnson had used in 1957 to pass that civil rights legislation — the pro-civil rights allies in the House, especially Rep. William McCullough (R-Ohio), would revolt. The legislation would then likely perish in conference.

One could not escape the reality that breaking the filibuster was simply impossible.

The strong bill passed by the House (H.R. 7152) and supported by President Lyndon Johnson would fall victim to various weakening amendments and either die outright or be rendered toothless.

That was the well-established pattern. And that was what most observers forecast when the legislation finally cleared the House in February 1964.

Sen. Russell was expected to divide his 18 senators into three teams that would alternate holding the floor, thus permitting the other two to rest. The pro-civil rights senators, on the other hand, had to produce 51 senators at any time, day or night, to defeat southern quorum calls or motions to adjourn. This was expected — to erode pro-civil rights resolve over time and make likely weakening amendments or outright defeat.

Majority Leader Mike Mansfield (D-Mont.) asked his assistant leader, Sen. Hubert Humphrey (D-Minn.) to serve as the floor leader of the House-passed bill. As Sen. Humphrey’s principal assistant for domestic issues, I ended up coordinating with the staff of other senators, communicating with the Department of Justice, and working with outside allies.

Working together, we hammered out a detailed strategy that we believed could eventually force Senator Russell to surrender:

  • Make the Southern Democrats hold the floor and debate the bill itself. Don’t let them read from the Chicago phone book or discourse on Auntie Sue’s fried chicken. Pro-civil rights senators, both Democratic and Republican, were assigned responsibility for major titles of the legislation. These “captains” would force Southern Democrats to debate, not just ramble on.
  • Deal fairly and openly with the Southern Democrats so no one — especially undecided conservative Republicans — could claim that the filibusterers  had been denied a fair shot.
  • Establish and enforce a whip system that would ensure 51 pro-civil rights senators were present whenever Southern Democrats “suggested the absence of a quorum.” In 60 days of debate, the whip system failed but once.
  • Never schedule a cloture vote until victory was assured. No “test votes.” No amendments prior to cloture. A premature loss could only weaken the pro-civil rights forces. 
  • Organize and focus outside groups supporting the bill. The Leadership Conference on Civil Rights served as the coordinating body. Actively seek support among the three mainline religious denominations to make racial justice a compelling moral issue.
  • Operate an intelligence system that focused in detail on developing leverage with undecided senators. One example: We telephoned “talking points” each morning to the wife of a conservative mid-western senator so she would be well-armed for their nightly dinner conversation.
  • Publish a daily mimeographed “Pro-Civil Rights Newsletter” that would be delivered each morning to every senator and the media, outlining what to expect each day and to refute Southern Democratic arguments.

The recounting of what happened in 1964 points the way in 2021.

Force the opposition to hold the floor and talk. No more premature “test votes.” No weakening amendments prior to cloture. Get organized by assigning senators to monitor the floor and be ready to defeat likely quorum calls. Coordinate closely with outside support groups and the media. Stay on the offensive.

Make a special effort to get religious denominations fully involved. Protecting the right to vote in 2021 has the same potential to become a moral issue as compelling as the defeat of Jim Crow was in 1964.

Force a rules change — using the nuclear option, if necessary — that shifts the load to those filibustering. Norm Ornstein of the American Enterprise Institute has suggested amending Rule XXII to provide that filibusterers would have to produce 41 votes to maintain the floor. Having to produce 41 votes at all hours, day or night, possibly for weeks, shifts the burden to those wanting to block action.

This approach has the compelling advantage of preserving the filibuster itself, thus recognizing the concerns of Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) and, I’m willing to bet, a handful of moderate Republicans.

The moral imperative of the struggle to preserve the right to vote as the foundation of American democracy must be hammered home relentlessly. As the filibuster drags on, and if the forces for passage hang tough, pressure for positive action will grow.

This battle can be won. And it surely is worth waging.

John G. Stewart, of Knoxville, Tenn., was legislative director for Hubert Humphrey (D-Minn.) when Humphrey was a senator and vice president. He is the author of “When Democracy Worked: Reflections on the Passage of the Civil Rights Act of 1964” and “Witness to the Promised Land.”