By Peter Montague
After the Civil War ended in 1865, white people conducted a public campaign of intimidation – torturing and murdering thousands of people in public (73% of them Black), a practice called lynching.
Lynching was so common that we still have no accurate count of those public murders. According to the Jim Crow Encyclopedia, 4,760 people were lynched between 1882 and 1930. A recent report from the Equal Justice Initiative has documented an additional 2,000 lynchings between 1865 and 1877, bringing the known total to 6,760 victims, an average of two public murders each week for those 60 years. No one believes this is a complete count. And of course lynching continued after 1930, as we know from the nightly news.
The main purpose of lynching has always been to send Blacks a warning: “You are sub-human and you will accept your social inferiority forever. Or else.” Because the purpose was to send a message, there was nothing secret or clandestine about most lynchings. In many cases, a Black man or woman accused of some social infraction like voting, or competing for a job against a white person, would be immediately hanged or burned at the stake by a white mob.
In other cases, a lynching would be advertised in advance, special excursion trains would bring hundreds of spectators from distant cities and towns to enjoy the spectacle of white men cutting off the ears, then each finger, and finally the penis and testicles of a Black man, then dousing him with kerosene and burning him alive. Body parts of the victim could then be sold to eager white buyers as mementos of the public torture — Black knuckles, toes, whole fingers displayed for sale at pharmacies or country stores. Photo-postcards of charred bodies, surrounded by white faces, including children, smiling or looking smug, would soon be available for mailing to friends and relatives to memorialize one’s participation in these festivals of white dominance.
To bring lynchers to justice, federal jurisdiction was necessary because local and state authorities often participated actively in lynchings, or cooperated with lynch mobs, or refused to prosecute, or to convict, or to mete out punishment upon conviction.
Between 1882 and 1963, Congress considered nearly 200 separate bills to make lynching a federal crime. Between 1890 and 1952, seven presidents petitioned Congress to end lynching, unsuccessfully. Between 1920 and 1940, the House of Representatives passed three strong anti-lynching measures, but they all failed in the Senate. In 2019, an anti-lynching law finally passed the Senate, then went to the House. The House passed the bill, but changed its name, which required another vote by the Senate, where Rand Paul (R-Ky.) opposed the bill he had approved in 2019, thus ending the Senate’s most recent fruitless effort to make lynching a federal crime.
If the Senate operated the way it was originally designed and intended — by majority rule — there is little doubt that lynching would have become a federal crime in the early 20th century. But the Senate no longer actually operates as the framers intended, by majority rule.
The Senate is an especially powerful body. Every proposed law must be approved by the Senate, and the Senate must ratify Supreme Court appointments, plus federal circuit and district judgeships, plus more than 1,000 presidential appointments (cabinet officials, ambassadors, and much more).
The Constitution says the Senate will make most decisions by majority rule. Still today, with few exceptions, in principle only 51 votes out of 100 are needed to enact a law or approve a presidential appointment. However, in reality, the modern filibuster changes the requirement to 60 votes, instead of 51, to enact most laws or ratify most appointments. This gives 41 senators the power to control decisions.
The filibuster changes the Senate from a majority-rule institution to a minority-rule institution, which has traditionally allowed racists to rule.
Long ago, in the 1830s, when the movement to abolish slavery was gaining support, senators from the southern states learned to manipulate Senate rules to enable a minority of senators to block legislation. The technique became known as “the filibuster” (after a Dutch word meaning “to pirate,” because the filibuster allows a minority of senators to “pirate” the majority’s right to make decisions).
The filibuster has a long, complicated history, explained in Adam Jentleson’s excellent new book, Kill Switch, subtitled “The Rise of the Modern Senate and the Crippling of American Democracy.”
Many people only know about the filibuster from Jimmy Stewart’s performance in the 1939 movie “Mr. Smith Goes to Washington.” That’s how it used to be — a lone senator could delay a vote on a proposed law by speaking for many, many hours; eventually, this “talking filibuster” would kill the proposed law unless 67 senators voted to invoke “the cloture rule,” which ends a filibuster.
In 1975 the Senate amended its cloture rule to require only 60 senators to end a filibuster instead of 67. If a cloture vote fails to gain 60 votes, the filibuster stops a bill from becoming law.
For 126 years (1837 to 1963) the filibuster killed every effective civil rights proposal and kept Blacks poor, powerless, and preyed upon. Today, the filibuster can prevent the Senate from enacting S.1, the pending bill that would guarantee everyone the right to vote, outlaw gerrymandering, and make other major steps toward real democracy.
During Roosevelt’s New Deal and Harry Truman’s Fair Deal (1932–1953), it was the Senate that denied Black veterans of World War II the benefits of the G.I. Bill of Rights. And it was the Senate that denied social security benefits to agricultural workers and domestic servants — occupations held predominantly by Blacks. Federal housing officials denied housing mortgages to Blacks, then banks devised “redlining” to deny loans in Black neighborhoods, and finally loan sharks swooped in, making loans to Blacks at double-digit interest and then foreclosing when owners could not keep up the exorbitant payments. Until 1968, the Senate refused to outlaw these discriminatory housing practices, which prevented millions of Black families from acquiring a “nest egg” of wealth — their own home. (And today, housing discrimination continues, though it is supposedly illegal.)
In 1964, when Lyndon Johnson was leader of the Senate, a southern-senator filibuster was “clotured” (stopped) and, for the first time, a modern civil rights law was enacted. However, the Supreme Court, under the leadership of racist John Roberts, soon invented ways to weaken or disable civil rights protections for Blacks. Now, because of the modern filibuster, the Senate has failed to enact new civil rights laws crafted to gain approval from the Roberts court. The fight against the filibuster has always been, and still is, a civil rights fight.
The filibuster is a Senate rule that has been modified many times. During the 1970s and 1980s the old “talking filibuster” morphed into the modern “silent filibuster.” The silent filibuster works like this: No talking is required; a single senator, whose name is typically not revealed, places one phone call or sends one email to “place a hold” on any proposed law. The instant that secret “hold” has been placed, the proposed law can no longer be enacted by a 51-vote majority of senators; instead, a 60-vote majority is now required to remove the “hold” from the proposed law, giving any group of 41 senators the power to kill any proposed law.
These days, Senate minority leader Mitch McConnell (D-Ky.) can gather 41 votes just from the states that Donald Trump won by at least 20 percent in 2016. As journalist T.P. O’Neill noted recently, “As our population increasingly concentrates in fewer states, less than 20 percent of Americans are thinly spread through 26 states that can — and do — control the Senate to the detriment of the other 80 percent of us.”
The framers of the Constitution explicitly warned that minority rule might develop in the Senate and they spoke and wrote at length about the importance of maintaining majority rule. The filibuster is not mentioned in the Constitution; it is a rule of the Senate invented to prolong slavery, which has been used since then mainly to oppress, disempower, and deny civil rights to people of color.
A few liberals argue we should keep the filibuster because Democrats can use it to stop Republicans from doing bad things, which is true, but the fact is, Republicans use the filibuster twice as often as Democrats because it operates mainly to Republicans’ advantage. As U.S. politics have become more partisan and divided, use of the filibuster has increased dramatically. In the 29 years between 1941 and 1970, the filibuster was used 36 times, or 1.2 times per year. In 2009–2010 the filibuster was used 91 times, or about 45 times per year.
Eliminating the filibuster by amending the rules of the Senate would definitely help progressives enact their agenda. That is why business trade groups like the American Petroleum Institute are lobbying hard to keep the filibuster.
Minority rule in the Senate is the main obstacle to real democracy in the U.S. According to the Pew Research Center, as of May 2019, the U.S. public leans decisively Democrat. Among U.S. adults, 48% identify as Democrats or as Democrat-leaning independents while only 39% identify as Republicans or as Republican-leaning independents, with only 7% holding truly independent political views. (The remaining 6% answered “I don’t know” or identified with a third party.)
With progressives outnumbering conservatives 48% to 39%, the only way conservatives can win national elections is by suppressing the votes of people of color, recent immigrants, young people, and anyone with disabilities. Several times in the recent past, Republicans have openly acknowledged that, to win elections, they must suppress votes.
Therefore, if we had one-person-one-vote-no-exceptions and majority rule in the Senate (no filibuster), then progressives would be able to enact their agenda.
If the Senate changed its rules to eliminate the filibuster, then we could finally protect everyone’s civil rights, including everyone’s right to vote; outlaw gerrymandering; enact public funding for elections to reduce the influence of big money in our political system; take the steps needed to control climate change and create good jobs now in every zip code in the country; strengthen and broaden the social safety net for those afflicted by sickness, old age, disability, mental illness, homelessness, joblessness, or who are simply down on their luck; make sure corporations and the super-rich pay their fair share of taxes; enact at least a $15 minimum wage (and perhaps improve on that); reform immigration law because immigration has always strengthened the nation; buttress and enforce the right to form and join a union, bargain collectively, and , if all else fails, strike without fear of losing jobs to strikebreakers; grant statehood to Washington, D.C. and Puerto Rico (if they still want it); enact laws and policies to combat racial injustice in law enforcement; reform criminal justice and prison policies; roll back the privatization of public goods and services, which has made government more expensive, less efficient, and less accountable; strengthen anti-trust and financial-control legislation to rein in big banks, hedge funds, and big tech; upgrade the nation’s infrastructure (bridges, tunnels, highways, energy systems including storage and smart grid build-out); cut energy consumption at least 50% by modernizing every of use of heat, light and motors, and insulating every building, saving every family at least $1000 each year on their energy bills; make education available and free, pre-K through at least community college and trade school, plus make state universities affordable, as they were intended to be; guarantee paid family leave; avail families of child-care if they want it; make mass transit more convenient and affordable; abolish the death penalty; protect endangered species; and more….
The good news is that a simple majority vote can change the Senate rules and eliminate the filibuster. Today, Democrats hold 50 Senate seats and Vice President Harris could cast the winning vote. Presto! All progressive proposals would suddenly be subject to a true 51-vote majority not a filibuster-created 60-vote majority. The U.S. would become more democratic and more progressive overnight.
So why don’t Democrats just vote to eliminate the filibuster? Because two Democrat senators say they want to keep the filibuster: Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. Evidently, they have their own reasons for wanting President Joe Biden’s agenda to fail.
If Manchin and Sinema continue to support the filibuster, President Biden’s agenda will fail. We know what happens then: if the party in power fails to accomplish anything, voters turn against them in the next Congressional election. This happened to President Obama. Republicans filibustered his agenda to death during 2009–2010 and in late 2010 Republicans gained 63 seats in the House and 7 in the Senate. As Obama said, Democrats took a “shellacking.”
Experience now shows that the filibuster does not promote bipartisanship, which some liberals like to think it might. The plain truth is, the filibuster discourages bipartisanship because it enables the minority to stymie the majority, who then get voted out of office for being ineffective. The filibuster is a pernicious, racist, and destructive distortion of democracy. The time is right for it to go.