The Senate Filibuster

April 27, 2021

For over 40 years, Alliance for Justice, a national association representing over 120 public interest and civil rights organizations, has fought for a fair judiciary that advances core constitutional values, preserves human rights and unfettered access to the courts, and adheres to the even-handed administration of justice for all Americans.

During that time, AFJ has championed legislation that protects civil rights, women and LGBTQ equality, workers, consumers, immigrants, and the environment. Over the past four decades, we have advocated for the Senate to confirm judicial nominees with a demonstrated commitment to equal justice and to defeat those that would turn back the clock on our rights and freedoms.

Through our advocacy, we have seen first-hand how the Senate functions. And, unfortunately, we have witnessed how the body has increasingly failed to address the needs of the American people.

When the Republican minority turned the existing rules into weapons of mass obstruction against President Obama’s highly-qualified judicial nominees, by 2013 AFJ was left with no choice but to fight with other activists to demand an end to outdated rules that empower tyranny by the minority. We joined Majority Leader Harry Reid, champions of Senate rules reform like Senators Tom Harkin, Jeff Merkley and Tom Udall, and scores of other advocates, to support changes to rules that allowed a majority vote to end filibusters on executive branch and almost all judicial nominee. It was not until 2017 that Mitch McConnell ended the filibuster for Supreme Court justices.

This was not a decision made easily or taken lightly. But there was no choice. Most notably, Republicans acknowledged that they had no grounds to oppose on the merits President Obama’s supremely qualified nominees for the D.C. Circuit. Yet, they filibustered those nominees anyway. In other words, unless rules changed, Republicans – whom the American people had chosen not to govern – had made clear they would block President Obama from even having the ability to fill vacancies.

The change in 2013 was the only way to ensure that the Senate could put the rights and legal protections of the American people ahead of the political interests of an extreme minority. Yet, nearly a decade later, it is clear that more reforms are needed. It is time to complete the unfinished business of making our government functional again.

The obstruction of nominees a decade ago is matched now by the blind obstruction of legislation even in this moment of compounding health, economic, and equity crises. In too many critical areas, an extreme minority is trying to prevent the American people, through their elected officials, from responding effectively to the most urgent challenges of our time. We must end the filibuster to pass legislation to protect the right to vote and to restore our democracy, to enact critical legislation to protect workers and expand the minimum wage, expand access to health care, keep our communities safe, protect civil rights and help Dreamers.

Moreover, for all of us who care deeply about courts that protect the constitutional rights and legal protections of all Americans, we need to end the filibuster to pass much needed reforms. We need to apply ethics rules to the Supreme Court. We need to create new lower court judgeships, as the Judicial Conference recognizes, to ensure justice delayed is not justice denied. And we need to expand the Supreme Court to ensure a majority of justices appointed by presidents receiving a minority of votes do not turn back the clock on equal justice and the rule of law for generations.

Because of the abuse of the filibuster, the character of the Senate and our entire system of government has been fundamentally changed. The filibuster was once a tool used only in rare instances – most shamefully to block civil rights legislation, including over 200 anti-lynching bills. This is why President Obama called the filibuster a “Jim Crow relic” that should be eliminated if it gets in the way of legislation to protect and strengthen our democracy.

Used sparingly for hundreds of years, the regular use of the filibuster, frequently by mere threat rather than deployment, today has turned effective legislative control of the Senate – and in turn national public policy – to the minority resoundingly repudiated at the polls. It has stripped the power to govern effectively from the majority that has been elected by the American people. The notion that 60 votes are required to pass any measure not involving revenue (e.g. through reconciliation) until recently would have been considered a ludicrous idea, flying in the face of constitutional norms and any definition of government by democracy.

Alexander Hamilton wrote in Federalist Paper No. 22: “The fundamental maxim of republican government . . . requires that the sense of the majority should prevail.” This nation faces a health and economic crisis that cost too many lives and put too many out of work and struggling to make ends meet. We must restore our democracy and make progress on the major challenges facing our nation. However, the filibuster too often renders the already-flawed Senate into a chamber of gridlock and dysfunction that stands as a barrier to any meaningful change. To fix this, we have to eliminate the filibuster so that our elected officials can deliver on the promises they made to voters and make the progress our country desperately needs.