Ending The Filibuster: Eli Zupnick


Hey everyone it's coming up as a special bonus episode unrelated to our season on racism. In america we thought the topic of the filibuster is timely. And important for everyone to hear and understand in fact. We think it's so important that you should be able to read the transcript to now. Normally transcripts are only available with a paid subscription to our six club overrun patriotic. But this is a special treat. We wanted to share with you. Head over to patriot. Dot com backslash future hindsight to access the transcript. See you there and enjoy the show. Welcome to future hindsight. I'm your host miller atmos. Each week i speak with citizen change bakers who spark civic engagement in our society. Our guest today is elliott zip nick. He's the spokesperson for fix our senate. A group dedicated to ending the senate filibuster. Even though democrats won the white house gained a narrow majority in the senate and held onto the house of representatives there's plenty of room for republicans to obstruct the biden agenda this episode. We'll explain how the senate filibuster actually works. Why it's anti-democratic and hence why the time has come to eliminate the filibuster has never been used more and bipartisanship and compromise has never been seen less clearly. There is something wrong clearly. We need to make changes. I'm hoping that the conversation ultimately is not going to be about some arcane parliamentary procedure. It's going to be about things that people care about. It's going to be about. The voting rights act is going to be about covert relief. It's going to be about raising the minimum wage. Let's listen in. Thank you for joining us. It's great to be on so to get us started. What is the filibuster. How does it work. That's a great question. The filibuster is the rule in the senate that allows bills to pass only when they can get sixty votes. It gets a little bit more complicated than that. It actually allows bills to pass when they have fifty votes but it only allows the bill to come to a vote. If it has sixty votes you may hear people talk about a bill needing sixty votes to pass the senate that means that it needs sixty votes to clear the filibuster hurdle not fifty votes to pass so if any senator wants to say stop a bill or slow down a bill they can put a hold on it. They can say they're going to filibuster it. They can actually filibuster by going to the floor but the bottom line is that in order to clear a her for many senator. That wants to stop a bill. They're going to need sixty votes to stop it. Maybe it's easiest to have an example and illustrate how it works. So let's say i'm a senator and i bring a bill to the floor and you wanna filibuster it. How do you do it. So if a senator wants to bring a bill to the floor you know. Let's say it's a bill to raise the minimum wage right now. The minimum wage hasn't been raised in many years. It's at seven twenty five. An hour needs to be raised. A number of people are talking about raising it to fifteen dollars an hour. If a center brings a bill to the floor to raise the minimum wage. There would be a debate on it. There would ultimately be a vote on it and if the coach vote the vote actually end the debate and get to the passage doesn't hit sixty. The vote doesn't get to move. The voters filibuster the bill is filibustered and usually in the senate these days that means the bill is dead so this is a new phenomenon. It used to be the case that bills could pass in the senate like in the house. If they have fifty votes if they have a majority that would be debated they would be voted on. And if there's more yeas than as the bill would pass and if it passes the house it could get signed into law but these days the senate has become a defacto super majoritarian institution where a minority of senators just forty one centers can stop anything and everything by using this tool called the filibuster. That was never intended to be used this way. So the filibuster is a tool to prevent a vote in a way so basically if you go to closer you need sixty votes to then vote on it. Did i get that right. That's right and there's two ways that the word filibuster gets us. And i think it's worth breaking it down a little bit so when most people. Say of senators filibustering a bill. They are saying that they are on the floor talking about the bill like you would see in the movie. Mr smith goes to washington or like people think about when they think about which trump thurman did with the civil rights bills and other southern democrats did to stop civil rights. Bills would go to the floor. Talk for twenty four hours. What senator sanders did at one point in the during the trump administration. What senator cruz has done a couple times. During the obama administration sit on the floor and talk for hours and hours. that's the common conception of filibuster. That's what most people mean when they say. A senator is filibustering but the filibuster as a rule itself really refers to a rule in the senate rules of procedure called rule twenty two. And that's the rule that establishes coacher the rule. That says that you can only end debate. If you have either unanimous consent to end debate every senator saying it's okay to move to the final vote or you do what's called a coach vote and rule twenty two says that you need sixty votes. In order to get culture. It used to be sixty seven votes in the seventies that was brought down to sixty votes. I can go back even further because it used to not exist at all until nineteen seventeen when it was instituted in order to have some mechanism for ending debate altogether but the filibuster rule itself is more of a silent insidious rule that establishes that sixty vote threshold. That doesn't allow anything to pass. Unless it could get there tell us why was implemented in the first place so it's important to note that the founders the framers of the constitution had absolutely no intention of creating a filibuster a supermajority requirement in fact when they were writing the constitution. There was a lot of conversation that we know from their notes and writings at the time that they specifically wanted to move away from some of the super majoritarian requirements from the articles of confederation. They talked about how it would not be a good thing if they super majority were required or as they would put it if a minority were able to stop the will of the majority so we know that they do not intend to have supermajority requirements. In fact in the constitution lays out a number of cases that do need supermajority requirements impeachment expulsion of other members from the senate overriding. A veto is another one. We know that there are some cases that they expressly wanted supermajority requirements but for regular legislation they actively did not so for a good chunk of the initial history of our constitution of our senate. There was no such thing as a filibuster. If a bill gop majority in the house it would pass. If a bill got majority in the senate it would pass. It wasn't until the mid eighteen hundreds a little bit before the civil war that there was a rule change. Actually that's a good story. So it's most people know that. Aaron burr they know are bir for his famous duel with alexander hamilton. But one of the other things that i remembered did that was damaging. A different way was when he was vice president right before he killed hamilton he oversaw a rules change process in the senate that according to the lower. This isn't known for sure. But the laura is that this was an accident he accidentally left out the provisions in the senate rules that allowed them to move to final passage with a simple majority and from that point forward there was no way to stop debate in the senate from the early eighteen hundreds or so from this rule change so it took about thirty years after that for senators to kind of realize that this happened. There still were debates. There still were votes. Nobody took advantage of the fact that there was no longer way to actually end debate. Intil this got pulled into the civil rights. Conversation and the pre-civil war debate between the north and the south and it was actually on a banking bill that was introduced that a southern democrat. I filibuster to. Bill wasn't called filibuster back then. Took a little while for the name. Filibuster to even be used but the filibuster. They realized that they can use that to just debate forever and stop bills in their tracks. That would either prevent the expansion of slavery or black commerce involving slavery which is what the north was trying to do at some point before the civil war. That was when the filibuster really started. It didn't change much for thirty years. Forty years civil war kind of put a hold on southern democrats use of the filibuster until afterwards then it came out full force to stop civil rights legislation. Again and again there were over two hundred anti lynching bills that were introduced in congress. None of them were able to pass. They were all filibustered if they ever made it to. The senate there's famous. Filibusters from trump thurmand from senator russell from senator byrd and it wasn't until the fifties and the sixties that they were finally able to get some civil rights legislation across the finish line. The one thousand nine hundred fifty seven civil rights bill was passed only when they watered down and the filibuster was dropped. It wasn't until the sixties and lbj that he was finally able to pass a civil rights bill by overcoming a filibuster that was the first time in senate history that a filibuster had been overcome on a civil rights bill and kind of squash that southern democratic filibuster. It's clear that the filibuster is anti-democratic. Can you explain what the differences between a supermajority and a simple majority. Because i think that deserves some fleshing out. There's a lot of ways to get at this question. I care a lot about accountability for our politicians when politicians go around the country or or they go around their home district and their state and they tell voters they're going to do something. They should be held accountable for that. But what a supermajority requirement creates is. It allows these politicians to win office to take trove government and then to be able to just blame the other side for not getting anything done. I think a perfect example of this is what we saw in two thousand nine president obama and he didn't attempt to do this. This was forced on him. But president obama won the white house. The democrats control the senate. They had time sixty votes at times. Fifty nine votes. The democrats control the house but there was a lot that president obama couldn't do when he didn't have sixty votes and couldn't overcome a filibuster but people across the country. It's not their jobs to follow the ins and outs of senate procedure. They're not necessarily gonna be thinking every day. Who has the ability to block something from the minority. They think democrats are in control. They promised us something if we see government in disarray. If we see gridlock and dysfunction we're gonna point our finger at the democrats. And senator mcconnell understood that senator mitch. Mcconnell was the minority leader at the time. He's the minority leader. Now he's been the leader of the senate republicans for a long time. That was one of his great innovations in realizing that it was the majority that was going to get blamed. Even if the minority had the ability to block everything so senate democrats and ultimately president obama had all of the accountability for getting things done but they ultimately did not have the power to do the things that they promised to do. Senator mcconnell was able to block a whole lot. The bills that passed the house on clean energy waxman markey would have taken a big step forward on climate change passed. The house saw the light of the day in the senate because it would get filibustered. Of course i'm sure many listeners. Remember what happened with the affordable care. Act where they had to do. A whole dense to push the final pieces through the budget process called reconciliation which allows them to pass certain pieces of legislation with a simple majority. But they couldn't do it in the normal way because they had lost their sixty vote supermajority after the tragic passing of senator kennedy and republican scott brown will on that seat in massachusetts but it will it really allowed republicans and allows republicans to prove their thesis. That government can't work whenever democrats are in charge and make it seem like those disarray and and gridlock and then when they take charge they're able to do a whole lot of the things they want to do with a simple majority and this is also not something that is talked about a lot. But there's a reason that senator mcconnell didn't really care too much about getting rid of the filibuster when he was in charge when republicans controlled the white house the senate and the house in two thousand seventeen in two thousand eighteen. Their agenda really consisted of cutting taxes for the wealthy and confirming supreme court judges and a whole lot of other circuit and district court judges. And what's not well known is that they can do those things with a simple majority. They can confirm judges because the rules were changed. Leader read and twenty thirteen. Got rid of the filibuster for nominees because of republican obstruction wouldn't let any obama. Nominees get confirmed. Senator mcconnell then got rid of the rule that allowed filibuster on supreme court nominees and twenty seventeen when he wanted to confirm gorsuch in the face of a democratic filibuster. And as i mentioned that reconciliation process allows them to cut taxes for the rich so he never felt any need to get rid of the legislative filibuster and what we ended up with is a senate where it's very easy to do. Things like cut taxes and maybe raise some spending in some areas and confirm judges. But if you want to do anything. Like democracy reforms or immigration reform more commonsense gun safety expanding the affordable care act. Those are still subject to a sixty vote supermajority requirement. And those just can't get done in less that's fixed okay. So how do we fix it. How can you actually removed the filibuster. Because is that going to be subject to a filibuster. That's a great question and there are actually many years when it wasn't exactly clear their conversation for years Senator merkley was leader in the senate and driving these conversations trying to figure out exactly what they can use procedurally to get rid the filibuster because in order to formally change senate rules need two thirds of the senate to agree which is an even higher bar than the filibuster and there was no way that would happen. The consensus that eventually emerged in ultimately became a bipartisan consensus. Which i'll get into in a minute is that you don't need to formally changed the rules with two thirds of the senate. The senate is a precedent driven institution. Unlike the house they don't vote on the rules. Every single congress the rules carry over from senate to senate and the presiding officer of the senate at the time is bound to interpret the precedent that's been set and make rulings according to that he or she uses the guidance of the parliamentarian. Who if you're ever watching c. span. You'll see a parliamentarian often whispering into the ear of the presiding officer telling him or her. What the president is what the rule is had rule and the presiding officer then makes a ruling based on what that precedent is so the consensus that emerged. Was that even. If you can formally changed the rule with sixty seven votes. What you can do is you can challenge the ruling of the chair on a precedent and then overturned that ruling with a simple majority. And i can give an example. I think that makes it a little bit clear. so twenty. thirteen majority leader reid and president obama. We're getting increasingly frustrated. That republicans had a wholesale blockade on president obama's nominees both for judges for the administration even sub cabinet level positions and even for boards like the national labor relations board that were understaffed and couldn't make decisions to protect workers and republicans very happy to keep it that way. At some point the frustration bubbled over and senator reed decided to do something about it. He went to the senate floor and he tried to confirm one of these nominees. He held of culture vote. The coach got fifty two fifty three votes. Something short of sixty and then. The presiding officer asked the parliamentarian. What's the ruling here. parliamentary said. This vote fails because you didn't get sixty. and then. The presiding officer then reported that out to the full senate senator reid than challenge the ruling of the parliamentarian and said have a point of order i would like to overturn your ruling. That was only subject to fifty vote threshold. So all the democrats were then able to vote with senator reid. To overturn the ruling of the chair therefore creating an whole new precedent and he created that precedent narrowly. He said only for nominees and not counting supreme court nominees for those nominees. We only need fifty votes for coacher no longer. Do we need sixty votes so from that moment because there was a new precedent set filibusters. Were only available to us on supreme court nominees and legislation and then of course the exact same thing happened when the shoe was on the other foot with senator mcconnell. He was frustrated. That democrats were holding up gorsuch nominee for supreme court at the time so he went through the exact same song and dance with the parliamentarians than eliminate that final barrier on supreme court. Nominees to set a new precedent there to it's convoluted. It's very deep in the parliamentary weeds. But that's the mechanism they used so then this would also be the mechanism to end the filibuster. Potentially that's exactly right majority leader schumer and his democratic caucus if he had fifty votes of his full caucus pasta vote of vice president harris. She would tie. He would be able to do the same procedure where he would challenge the ruling of the chair. Call a vote to overturn the ruling of the chair. And if he won that vote then that would set a new precedent on the legislative filibuster. And we assume it would be to eliminate the sixty vote majority requirement and turn it into a simple majority. So why is now the time to do this. There have been a number of people who have been saying. The time was long ago. I mentioned senator merkley before. He's been a leader on this real forward thinker. Many years ago he wrote a memo ascended to the caucus explaining wife. The filibuster needed to go. He spoke to issues. You alluded to about the already undemocratic nature of the senate how it's so skewed toward smaller states more rural states more conservative states and especially as people move into cities. It's going to be skewed. Even further given republicans and conservatives in advantage the filibuster something that turbochargers that you can't do anything necessarily at this point about the senate side from potentially adding additional states became fundamentally change the undemocratic nature of the senate's enshrined in the constitution. But we can do is take away the filibuster that turbochargers that that makes it that a tiny minority can stop everything so he's been working at it for years. What really has fired. People operate now is how much needs to get done. And we have a climate crisis we have growing inequality we saw over the past year. What happens when an incompetent administration tries to manage a pandemic. We have more people crying out for racial justice and police reform and immigration reform. And then of course our democracy we have serious issues with our elections with trust that people have in government with the systems that we have generally just people losing faith in them and for good reason. There's so much that needs to happen and not a lot of time. I personally think. I think a lot of people agree especially those on the left of center side of the spectrum that we may not have another opportunity for a long time. We're heading into a redistricting period. Democrats didn't do as well as they had hoped in the twenty twenty elections at the state level which means that there's a whole lot of republican control over redistricting and in states that have a history of gerrymandering or slicing districts in ways that advantage their side politically both parties. Do it but in the past few years we've seen republicans. Do it a whole lot more their prime to do that. There's a very good chance that democrats could lose the house in two thousand twenty two. There's a chance they could lose the senate and twenty twenty two. We don't know how much longer democrats are gonna hold the white house. There could be a two year window now not to cheat not to do anything extreme but to fix the problems that are glaringly obvious in our system and put the country on a better track. And if we don't do it now not only could the window close for those electoral reasons. I laid out. But we're at a point now where people are really unhappy really frustrated with their government. Not working. I personally believe that. That's a part of what led to president trump's ascent part of what led to people thinking that they had nothing to lose because nothing was working. Well so they may as well hand government to someone who is gonna blow it all up and just turn the table over. And i worry personally very much that if we can restore some faith in government if we can show people that they put government in the hands of democrats who made certain promises the and then have them deliver on those promises and then fix the systems that are failing us restore faith that we're gonna see someone even worse than trump down the line that we're gonna see even more deterioration of people's faith in our democracy. And i think that's a bad thing. i know. A lot of people agree. yeah. I definitely agree. So let's take it a little bit step by step. I want to get to the idea of how eliminating the filibuster would deepen american democracy by really think this goes hand in hand with proving that we can actually deliver better governance. What is the first bill that you think would be most effective to pass. Let's say in the absence of filibuster so the break now. Democrats have introduced and will be holding hearings and moving on a bill before the people act. H r one has a senate companion. That's s one. This is a bill that would tackle money in politics. It would try and take money out of politics. That would tackle some of these gerrymandering issues. It's not the whole way but it would at least take some real steps to cut down on the influence of money in politics and make this redistricting process. More fair not have members of the house choose their district's but have voters choose representatives in a much more fairway so i think that's step one for lots of reasons. The assumption is and i'm pretty confident in this. Republicans will filibuster this. They don't want to see this happen. They want to press their advantage right now while they think they have it. They want to engage in gerrymandering. They benefit often. There have been some shifts in recent years but they benefit from big money in politics more than democrats do and so they would filibuster that and if the filibuster were eliminated. There's a very good chance at that. Passes pretty quickly passed the house. Already and the expectation is that it would move with fifty votes potentially pick off some republicans as well possibly but it certainly would not get to sixty so it could pass. If the filibusters eliminated cannot pass the filibuster exists. But then there's other bills the john lewis voting rights act. That's something that needs to pass. We saw this past election the serious problems with voter suppression across the country. We saw in georgia leading up to the twenty eighteen election. We saw stacey. Abrams has really shined a spotlight on that and did so much work in georgia to get people registered to help people get to the polls. But it's a major structural issue in georgia and across the country where there's significant voter suppression. Were seeing states now across the country take advantage of the supreme court ruling in shelby that gutted the voting rights act to further keep people away from the polls often. It's minority communities often. It's people who are losing the most and could gain the most from the kind of policies that could be implemented if those better representation and stronger democracy in our country. I would say the voting rights act as another real serious policy that if the filibuster exists conventional wisdom is democrats would not be able to move that despite everything that has happened. Republicans would still filibuster. Wouldn't be able to move in the senate if the filibuster were eliminated. I think he would see that. Pass as well so in terms of the order they already put forward. Hr one think. Then let's say it gets filibustered and then we'll schumer say okay. I'm going to challenge this. And then set a new precedent and this way limit the filibuster i mean in an ideal world is this the way the union it we are pushing for from our fix our senate coalition with a number of people on the progressive side right now in the good government world are pushing for is for the filibuster to be eliminated as quickly as possible. I think that democracy reforms the voting rights act would be a great way to do it. I personally think that the voting rights act specifically has some poetry to it given how the filibuster has been used so often over the years to block civil rights legislation and with the passing of representative lewis so recently and at his funeral president obama specifically talked about the filibuster called a jim crow relic. That shouldn't be eliminated if it got in the way of equality and progress in our country. I can't control. What present agenda is how he wants to sequence that none of us can control. Exactly how senate. Democrats want a sequence these votes we can make our voices heard we can weigh in we can push them to make sure that as soon as that obstruction happens. They're ready to move quickly to push through it. We're not there yet. There are a number of democrats who are still not quite comfortable with getting rid of the filibuster. It's not going to be easy. It's not going to be simple. There's not unanimity and with fifty votes in the senate for democrats there needs to be unanimity on the democratic side to do it. I'm confident that republicans are going to show fairly quickly that it's necessary and to us president biden's words they will be obstreperous and stop things from happening and what he said before his election was. If they prove to be obstreperous he would be ready to examine the filibuster. he's been a longtime supporter of the filibuster is something that he believes increases bipartisanship or forces more compromise. But he wants to get some big both things done. So i think the next couple of weeks and months are going to be critical. Democrats and some republicans are going to have to face a really tough decision. Is it more important for them to deliver on the promises they made to the country to their constituents when they ran for office in when voters handed them full control of government or are they going to prioritize a senate rule that has changed multiple times of the year. That's not enshrined in the constitution. Certainly not carved in stone and that has been abused by the minority to block anything and everything and that choices going to be really important it could determine the future of our country and our democracy so talk to us a little bit about the democrats who are reluctant to get rid of the filibuster. Most notably of course senators mansion and cinema have expressed that they want to preserve the filibuster. Now why would they want to do that. So are mentioned. I because i'm a little bit more familiar. He's been around the senate longer. He has a longer history on this. But i think centre cinema is agreements. They believe that the filibuster is something that promotes bipartisanship and forces. More compromise their position. Is that if you only need fifty votes than it will be easier for majority to pass legislation and not have to turn to the minority. Not take their input not compromise and just jam things through and they think that if the filibuster exists it would force the party in the majority to have to reach out to the other side and get results and i think that there was a period of time when they were right. There was a period of time when the filibuster was not often used when it wasn't the defacto supermajority requirement that became it was sadly used to park almost all civil rights bills and that's a huge but but for the most part it was not used it was not a part of the senate so i in the senate in two thousand nine right when senator mcconnell i had this innovation where he realized that he could and it would help him politically if he did block anything and everything but when i got in the senate people were still talking about needing fifty votes to pass a bill and especially on things like appropriations bills spending bills. The assumption was that if you could get a majority. There wasn't an automatic assumption that there would be filibuster that came later so there was a time when the threat of the filibuster. And the fact that any senator when they deemed it to be very important. Pull out this tool and say no stop. You can pass this with fifty. You need sixty. That could have promoted bipartisanship and compromise when the filibuster was used that way however in the version of the filibuster that exists. now where it's defacto supermajority requirement and critically where the minority has realized that they can use it to block anything and everything. And i should add as the parties have become more sorted an ideological where there's no longer that overlap where you have. The most conservative democrat is may be more conservative than the most liberal republican and vice versa. That doesn't exist anymore. The most conservative democrat. Joe manchin is still more liberal than the most liberal republican susan collins. Lisa murkowski potentially. There's no longer any sorting. there's no longer any overlap. I know druckman and others have talked about how they're used to be four parties and having four parties southern democrats northern democrats and then conserve democrats and liberal democrats and liberal republicans and conservative republicans allowed different coalitions to form and compromises to come together that got to that sixty threshold fairly easily. That doesn't exist anymore. Partisanship rules the day. And it is no longer the case that you can get the minority to come to the table just because they need to just because that's the only thing that passes. This is something that more and more people are talking about. The filibuster actually stops bipartisanship for the reasons articulated but also because when the minority realizes that they can stop a bill in its tracks when they don't let the train leave the station and senator mcconnell go to his caucus and say if you stand with me and we don't give democrats a single vote and we don't let this bill pass. We're gonna win the elections in a year. Then we're going to get a better bill in two years if he can say that to them that's a pretty good argument for his caucus staying together and even those members who may want something from a bill they may want a particular provision or they want tweak a certain provisions they feel okay sitting back. And saying we're gonna win because we're going to obstruct so much that voters are going to be sick of the ruling party. They'll put us power. We'll get something better but if the majority party is able to say to the minority. You can't stop this from happening. The train is leaving the station members. The minority are not going to be okay letting that train leave without them. They're going to want to go home to their constituents and tell them what they got. Tell them what they did. A popular bill raising the minimum wage or or an even better is probably background checks. Background checks something. Supported by ninety two percent of the country. Commonsense background checks. That was a bipartisan. Bill senator manchin of west. Virginia senator toomey of it got fifty three votes. I believe when it came up during the obama years would pass the house would have been signed into. Law was filibustered. If the filibuster didn't exist i can't prove this it's counterfactual but if it came up again we'll see if i'm right. I think it would crack sixty because once the minority knows. It's going to pass. it's a popular piece of legislation politicians or politicians. They like popular pieces of legislation. They would jump on knowing that they're gonna wanna take credit ford and they're not going to have another crack at their version of it because it will pass and we'll get signed into law so paradoxically. And i think almost counter intuitively. I believe getting rid of the filibuster would lead to more bipartisanship. More compromise better functioning senate and i think more effective government great. Actually that was going to be my next question. You know how will eliminating the filibuster actually changed. Senate philosophically will be more functional place than you. Just answer that question. But i have a little bit of a technical question about the filibuster now which is do have to announce that you are doing buster the example that you just used fifty three votes for the mansion to me bill. How did he get filibuster after he got fifty three votes. Unfortunately you don't have to announce it it has evolved to become something that is silent and at times. You don't even know who is the person who demanded that the coach vote. B a sixty vote threshold who objected to the consent agreement to go to final passage with a simple majority. When there's a vote that comes up there's something that's called a hotline that goes out to every member's office used to be an actual phone hotline that the leadership on each side call every office and say the majority wants to move to a background check. Bill say are there any objections and members offices usually the legislative director. The chief of staff would say no objections. Here no objections here. No objections here and if nobody objected that bill could move to final passage the leaders can go to the floor. Ask for unanimous consent. Know that nobody who may not be on the floor at that moment would like to object because they represent the people who are not on the floor when they go to the floor and their leadership capacity and then things can move to final passage but if any one person objects usually in the minority the minority leader will come to the floor and he will object to the unanimous consent agreement. He will say there's an objection on my side. We object often. There won't even be a unanimous consent agreement. That comes up often. the majority doesn't force the minority to object. It just becomes the case that they moved to a coach vote that requires sixty. So you often don't even know who's leading the whole doubt you don't even know who is slowing down the process. It just happens and what has evolved is members just got used to this. It started happening so often that there were objections to bills that in previous senates would never have been objected to would have moved right through the process. Maybe it failed. Maybe a past but it would happen on a majority requirement. It became the case that every single one of them was seeing an objection so it just moved to become a sixty vote threshold and they started just assuming that there was going to be an objection somewhere so that they were going to move to a culture. Vote that required sixty so guests to what i was saying before that people think of a filibuster as an action but the more insidious part of it is just the fact of its existence creates the sixty vote requirement so that everything gets slowed down and hits that barrier unless you can cross sixty votes. There's an understanding that the bill cannot move beyond a certain point. All of these misconceptions like you said that it was an active act to go out there and say okay. I object but actually it's just like oh somebody in my caucus objects and so then we can't go forward. You could make it up. Almost one person one hundred could say. I don't want to do this. I think we should stop discussing this than not. Bring to a vote. that's totally anti-democratic. Did i get it right. That's exactly right. Any one person can object to unanimous consent needed to move to vote that requires fifty and in today's senate. When you look at the senators there. I'm sure you can think of three or four. Who are going to object every single time. That's right so it's sounds like the filibuster really does have to go. Let me ask you this. This is of course. Totally speculative what do you think would change senators mansions or senators cinemas mind. So they could get onto the bandwagon and eliminate the filibuster. I mean i'm hoping that they the republican obstruction and they changed their minds on their own. First of all these are both members who are moderate members in center mentions case. He comes from a pretty red state. Tom president trump won by huge margins in two thousand sixteen and twenty twenty. When it comes to senator cinema. She comes from more purple state estate. Where that's trending blue but is still not certainly not a blue state quite yet. They're both moderate pragmatic members. I think there's nothing more moderate and pragmatic than working to fix the senate breakthrough the gridlock and dysfunction and deliver results for your constituents. So my hope is that they do care about getting results for their constituents. I think they do. They have a legislative agenda. They wanna get things done when it comes to west. Virginia there's a whole lot of needs from economic development highways sewer systems ends. You know there's healthcare money that needs to go there. Especially as as the country moves away from coal and moves into more clean energy technology that that west virginia could benefit a whole lap from a whole lot is happening and arizona of course also has a whole lot of needs in their people need economic growth in jobs and comprehensive immigration reform and these are members wanted deliver results. Who want to get things done. In fact i know. Senator manchin has talked about how when he was governor. He likes getting things done and one of the things he doesn't like about being a senator is how it's all talk and no action. So i'm hoping that when push comes to shove and they face the decision do we spend ten years doing nothing but bickering and fighting and pointing fingers at each other. Absolutely nothing getting done or do we not say that we were wrong about the filibuster. They don't need to say they were wrong. About the filibuster. They can credibly. And honestly say i was right about the filibuster before i thought it was a tool that promoted bipartisanship and compromise. But it clearly isn't doing that. The filibuster has never been used more and bipartisanship and compromise has never been seen less so clearly. There is something wrong clearly. We need to make changes. Hopefully center mentioned center's cinema will now support these policies and getting them across the finish line. And i'm not gonna let this rule stop that from happening. So i'm hoping that can happen but i think that you know even even beyond what they can say and what they could think i. I'm hoping that it's going to be about issues that it's going to be about the things they care about. I'm hoping that the conversation ultimately is not going to be about some arcane parliamentary procedure. It's canoeing about things that people care about. It's going to be about the voting rights. Act it's going to be about covid relief. It's going to be about raising the minimum wage and the conversation. Then this is going to have to be. Are you going to get that done with the majority of support and of supermajority support among the population among voters. Or are you not an in the end. They're going to do the right thing and choose to get things done. I get the sense. That president biden wants to do that from the way he's talking from what he saying in the public and what his team is saying about the need to pass big bold legislation. they have a robust agenda. They wanna do big things. Senator schumer has been working for a long time to win the senate and become majority leader with a democratic president to do big things. And i'm pretty hopeful and confident that in the end when push comes to shove they're going to put their constituents i and they're gonna do what has been done many many times over the years when it comes to the rules and update the rules to match the moment and to make the senate work when something in the rules stopped working. You fix it. And i'm hoping that they can do that. Yeah me too. So what is the downside of removing the filibuster. What do you foresee. Maybe an unintended consequence the primary concern. That many people on the left have is that. It's what i like to think of as the shoe is on the other foot arguments. There's concern that if you get rid of the filibuster now than maybe in four years. Republicans win the presidency. Maybe they win the senate and the house too and then with the filibuster gone. There's legitimate concern about what an unleashed republican party would do in government when it comes to women's health and rights when it comes to civil rights when it comes to workers rights labor issues you know special interest and that there's a whole lot that should concern anyone about what republicans would do with full power and no filibuster to stop the worst of the legislation that they want to pass. That's a legitimate concern. That is something that people in very good faith argue and i think it's it's an argument or a concern that needs to be taken seriously. I've a few response. That's so first and foremost. I think that there's no reason to believe that. Not that not getting rid of the filibuster. Now protects you from mitch mcconnell. Getting rid the filibuster later. If he thinks it's in his interest the best evidence for this. I think is what i mentioned before that senator reid in two thousand thirteen specifically excluded supreme court nominees from his elimination of the filibuster on nominees. Generally under the assumption or expressing the hope that when republicans took power they would preserve that and they would make it so that supreme court nominees is the highest court in the land. A lifetime appointment would still be subject to a sixty threshold. But the moment senator mcconnell took control in two thousand seventeen he waited i i believe it was three days of democrats filibustering gorsuch before he changed the rules and said no. I'm eliminating the filibuster on supreme court nominees to he would do the exact same thing. I am quite confident. If he sought in his interest p believed it was something that would expand his power or advances ideological interests in twenty twenty five. So that's number one any kind of forbearance on the part of democrats in this moment not only does not guarantee forbearance republicans in three to four years. It doesn't even help in my view. The other thing i would say this gets a little bit to what i mentioned before about. The window of opportunity is four. Years is a long time. There are some major issues facing our nation when you listen to scientists and hear them talk about the climate crisis and what needs to happen now. How far behind we already our democracy reform and fixing our broken democracy and finding ways to restore that faith that people have lost in the past few decades making sure that voting rights are protected. We don't have much time to fix those issues and things are bad but they could get worse and if we don't do it now because of a concern even a legitimate concern about what republicans can do in four years. I think we're making a big mistake. I think we're missing a big opportunity. The final thing. I would say on that point. Is that making some of these democracy reforms and forcing republicans to actually cater to the needs. The desires the interest of the actual majority of the country will make them a more reasonable party and will make it less dangerous when they do take control and the filibuster is eliminated. Republicans right now don't have to cater to the majority. They are a minority -tarian party. They haven't won the popular vote in a long time. And this is a shocking number but democrats won forty one million more votes than republicans in the senate. Republicans are slipping into a minority party and they are right now intent on protecting their power while being a minority party. What we need to do by making some of these democracy reforms is forcing them to really become a normal party actually win by cheating not by preventing voters from going to the polls or by gerrymandering. So that they could choose their districts or by having unlimited money and politics but by actually catering to the needs of the majority and having an agenda that the majority of voters actually supports and being able to exist in this multi-racial democracy that we have right now and we'll hopefully continue to have. That is the way that we make sure that that we take some of the fangs out of the threat that republicans could take power. They will take power. Republicans will win once again in the future and my hope is that when they do win when that does happen it will be in a system that is fair voters actually decide what they get the majority of votes and by having to do so they have moderated their policies at are actually can do things that are not as scary to a lot of these people who have concerns about the shoe potentially being on the other foot so as an everyday citizen. What are two things. I could be doing to end the filibuster. Because you know we're not serving in the senate so we could not participate in these votes. So the first thing is talk to your senator reach out and don't make it about the filibuster. Make it about the issue. You care if you care about. Climate change reach out to your senator and talk to them or their staff about why you believe. The climate change needs to be tackled and then connect the dots when they say they're center supports climate change legislation. Say okay. we'll do you support getting rid of the filibuster to many them. Thankfully right now. We'll say yes those that don't should be asked to explain. Why not same thing with gun safety. There's a whole lot of people across the country who've seen what happened and parkland schools and just cities across the country and who desperately want commonsense gun safety legislation and who know that that that won't get done who are frustrated that that can't get done. Ask your senator do support this if yes. Do you support getting rid of the filibuster. The tool the nra and the republican allies us to stop this connecting. Those dots is going to be so important. And that's i think the most important thing that people can do that senators realize that they can't just get away with saying they support legislation. They actually have to account for how they're going to get it done. And even more specifically they have to account for the thing that is stopping it. It is not enough to promise. You'll do something and will you can say you're willing to take the steps needed to actually get it done. The second thing i would say is to educate your friends. It's not an easy issue. It's a procedural issue. It's not on top of people's minds. It's a tough issue to explain but you can explain it and keep it simple post these stories on facebook and on twitter. Reach out to friends when you see a story about republicans filibustering something and sometimes you see in the media. It's reported as if this were just the way it is and this is the way it always will be. Tell your friends. Hey did you know that. The filibuster didn't actually exist until relatively recently do know that the filibuster was only used to block civil rights bills until mcconnell started using it to block literally everything. Do you know that democrats can change that. All they need fifty votes to change it. People just don't know these things yet and because people don't know that yet there's not nearly enough pressure on members of the senate to change it and they're able to keep going. The status quo is working for some of them. It's not working for many of them. There's increasing frustration. But the more people talk about this the more people connect the dots between the issues they care about and the procedural hurdle the brick wall that stands in the way of action. Getting them done the closer. We can get to actually having the centers that tough choice to change the rules and fix the problem. Well said last question looking into the future. What makes you hopeful. What makes me hopeful as that more and more people across the country and more and more senate democrats specifically are seeing this for what it is. Ten years ago this was a truly obscure issue. That was relegated to the wong the parliamentary geeks and maybe some lawyers and activists who were super engaged. Now it's something that mitch. Mcconnell was so worried about that. His first action as minority leader was to try to guarantee that democrats would never take the filibuster away. He is worried about this. It hasn't yet reached the level of public consciousness that we need but it is getting closer to that. More people are understanding. This more people are getting angry about it. More people are worried about what happens if we don't fix the problems that need to fix. Our democracy in our country and more people are willing to take action. I spent two months very worried that democrats were not gonna win the senate which would have slammed the door on reforms for two years but the people of georgia had a very different idea. And that gave me a lot of confidence and hope that that final push in georgia to get fifty votes in the senate for democrats. The white house for president biden the house for speaker pelosi and her democratic caucus. The door is now unlocked. And it's on all of us it's on activists and advocates an ordinary citizens to make your voice heard and make it so that that unlocked door gets opened a little wider and we could see some of these reforms get pushed through we could fix our democracy and restore that faith that people want to see restored and start getting things done and making a country work again here here. I hope you're right. Thank you very much for being on future hindsight and thank you very much for your advocacy on this issue. It's great to be here and thank you so much for covering these issues for everything you do on this podcast. We've heard so many times that the senate is considered the world's greatest deliberative body that i was genuinely surprised to hear that the parliamentary weeds as ellie calls. It are so unfair. Like many people. I did think that the filibuster is the action of a senator. Talking all night to prevent vote like when strom thurmond famously filibustered for over twenty four hours to block the passage of the civil rights act of nineteen fifty seven the fact that one anonymous senator can actually scuttle any and every piece of legislation brought before the senate is an astounding travesty. And i don't know what's worse that this has been allowed to happen. Unchecked for more than one hundred years or that everyday people don't really understand that it's happening at all. Whether or not the filibuster may have been a mistake a whether it really has fostered by partisanship here and there was clear today. Is that in. its history. It was primarily used to serve as a tool of obstruction. It's truly mind blowing to realize this senate rule has had such a damaging impact on our country although the trump administration and the republican majority under mitch mcconnell. I thankfully behind us. It's painfully clear. That the obstructionist ways of the opposition are not over as of this recording. Mcconnell has blocked the organizing resolution in the senate means that republicans are still running senate committees and therefore the agenda. If you agree that it's time to end the filibuster call your senator and let them know what legislation you want to see accomplished and why they must remove the filibuster to make that happen next week. Our guest is richard rothstein. He's the author of the color of law of forgotten. History of how our government segregated america it uncovers how federal state and local policy explicitly created racially homogeneous neighborhoods that violate the constitution and require mediation. We have a myth that the reason we're segregated every metropolitan area. This country is because of private activity. It's not just income differences. We think of this. Because private actors like banks real estate agencies and developers would sell to african americans or maybe big white homeowners and landlords wouldn't rented them. The reality is that the reason we are. Segregated is because of a set of racially explicit federal state and local policies they were designed to ensure that african americans and whites could not live near one another in any metropolitan area of the country. We discussed the indisputable proof that african americans have been the subject of discrimination by the government through public policy in all aspects of life well beyond housing and the continued marginalization of african american communities. Today until next time stay engaged. I'm mila atmos. Thank you for continuing to listen to feature hindsight. our executive producer is meal atmos the audio producers. peter fetig our associate producers are medium zoo and brookside. Be sure to listen to us on apple. Podcasts future hindsight dot com or wherever you enjoy podcasts. Every week to this podcast is part of the democracy group.

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