The statues are falling. On Monument Avenue in Richmond, Virginia, Confederate President Jefferson Davis has been yanked off his pedestal. In Philadelphia, the former mayor and virulent racist Frank Rizzo was transferred to a storage facility. Across the Atlantic, a crowd of protesters grabbed Edward Colston, a 17th-century slave trader, and dumped him into Bristol Harbor.
Yet there is another relic of the Jim Crow era that has, thus far, been largely overlooked. The Senate filibuster—the rule that allows a minority of senators to block nearly every piece of legislation—may not have the literal weight of stone or metal. But it, too, is a direct legacy of segregation, and it remains a tool for maintaining systemic racism. In this moment of long-overdue reckoning, it’s time for the filibuster to go.
In fairness, the filibuster was not explicitly designed as a tool for white supremacists. In fact, the filibuster was not “designed” at all. It was created by accident, part of a sloppy revision of the Senate rule book by Aaron Burr just a few months after his famous duel with Alexander Hamilton. In a careless effort to remove what he thought was redundant language, he cut the “previous question motion,” which would have allowed a majority of lawmakers to end debate and force a vote on a bill.
For more than a century, Burr’s mistake gave even a tiny handful of senators the power to block a bill indefinitely. But in 1917, Woodrow Wilson (himself an ardent segregationist) demanded reform. “The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action,” he complained. “A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.”
Many senators favored eliminating the filibuster altogether, but in the end they compromised and created a new Senate rule: If two-thirds of the upper chamber came together, a speaker could be cut off and a filibuster broken. This was the first appearance of the filibuster in its modern form, though the required number of votes was later reduced to three-fifths. A grumpy trio or quartet could no longer slam the brakes on the entire legislative process, but a faction of senators—a group larger than a handful but smaller than a majority—could still kill any bill it pleased.
One faction in particular was large and well organized enough to make good use of the new filibuster: southern segregationist Democrats. And the single issue on which they were most unified—and to which they were most adamantly opposed—was civil rights.
Consider what happened in the early 1920s, when the Massachusetts Republican Henry Cabot Lodge introduced a bill to combat lynching. At the time, most lawmakers were not pro-lynching. An anti-lynching bill had passed the House and enjoyed majority support in the Senate as well. But to take advantage of that majority support, the bill needed to be voted on.
To ensure that this never happened, southern senators executed what can best be described as a ballet of obstruction. First, to slow the proceedings, they demanded that the Senate journal be read out loud each day in full, something technically required by the chamber’s rules but rarely enforced. Then the filibusterers began offering amendments to the journal during the reading. These could be as meaningless as inserting a senator’s middle name or changing a single word in a speech. Yet the vote on each of these amendments could be filibustered.
After a week of fruitless exhortation, Lodge realized that he had only two options: abandon the rest of his legislative priorities or scuttle the anti-lynching bill. He scuttled the bill. Over the next few decades, Congress would consider nearly 200 anti-lynching measures. Thanks to the unique procedures of the Senate, and the unique enthusiasm with which they were exploited by Jim Crow’s supporters, not one became law.
In 2005, the Senate passed a resolution formally apologizing to lynching victims for its inaction. The text was brutally honest about the horrors of what it called “the ultimate expression of racism in the United States following Reconstruction.” Yet the apology made no mention of why lynching had been allowed to persist. Americans were left to conclude that the Senate had examined a half century’s worth of anti-lynching bills and, upon careful consideration, dismissed them as unwise. In fact, this wasn’t the case at all. The bills weren’t rejected by a majority of the sober, cautious Senate. There was nothing to reject. They never received a vote.
Nor were anti-lynching measures the only bills to fall victim to the filibuster. For nearly a half century after Wilson’s reforms created the modern filibuster, not a single substantial civil-rights bill became law. Even the “talking” filibuster—the marathon speech made famous in Mr. Smith Goes to Washington—is intertwined with racism. The longest filibuster on record, Strom Thurmond’s in 1957, was delivered to protest civil-rights legislation.
In fact, and somewhat ironically, it was precisely because the filibuster was such an effective tool for defending segregation, and because segregationists in turn became the filibuster’s staunchest defenders, that obstruction on other issues was relatively rare. Most senators didn’t want to legitimize Jim Crow’s favorite procedural tactic.
The result was a kind of bargain—or at least a reluctant acceptance—that shaped our democracy for decades. On the one hand, the Senate helped build the America we have today, passing the bulk of the New Deal, the Marshall Plan, the Interstate Highway System, and plenty of other big, ambitious bills. Yet, during that same time, the former Confederacy was allowed to maintain a system of autocratic, racist, one-party rule. Americans were murdered, unjustly imprisoned, denied the right to vote, and treated by their own country as subhuman—all because of the Senate’s unique and often venerated procedure.
Today, the filibuster continues to hold back progress on civil rights. Because the chamber’s two-senators-per-state structure favors smaller-population rural states, disproportionately white states have disproportionate power in the Senate. Combine this with the current 60-vote threshold for passing legislation, and it’s not hard to see why racial justice is a far more urgent priority for Americans than it is for senators. In fact, just two weeks ago, Kentucky Senator Rand Paul used a parliamentary delaying trick to hold up an anti-lynching bill. The segregationists of a century ago would be proud.
Yet there is a fundamental difference between the obstruction that frustrates leaders in our era and the obstruction that got the better of Henry Cabot Lodge. We don’t need to choose between having a democracy and allowing racist systems to continue. In fact, today, we face the opposite choice: self-government and anti-racism on one hand; autocracy and white nationalism on the other.
Doing away with the Senate filibuster would not, of course, mean the end of systemic racism. But it would make anti-racist policies far easier to pass than they are today, and it would help dismantle both the legacy and machinery of Jim Crow. Debates about long-venerated icons are never simple, and there will always be those who argue that “protecting our heritage” is more important than rising above the worst failings of our past. But with the prospect of change on the horizon, Americans should approach the potential collapse of the filibuster the same way they increasingly view the fall of Davis, Rizzo, Colston, and so many others. Tear it down. It’s time.
This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.