It’s no coincidence that this week, as we honored the legacy of Martin Luther King, Jr., the Democrats had hoped to make progress on passing the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. However, the Democrats’ efforts have been stymied by a Republican filibuster, resulting in a strategic shift from voting rights legislation to filibuster rule reform. Yet, with the rule change on the table, the Democrats failed to even secure sufficient party support, let alone the additional Republican support necessary to pass the change.
So why is there so much controversy over the filibuster? How is it impacting legislation? And is reform the answer? On Lawyer 2 Lawyer, host Craig Williams is joined by professor Michael J. Gerhardt, from UNC School of Law, as we spotlight the past, present, and possible future of the filibuster, and its impact on voting rights legislation.
Michael J. Gerhardt: Democrats unlike Republicans do not hang together very well and that is the source of the problem here. We’ve got two Democrats that don’t want to play by their party’s rules. Republicans seem to be very effective at remaining united; Democrats are notorious for being fractured, disorganized and ineffective.
J. Craig Williams: That’s quite an indictment.
Michael J. Gerhardt: It’s true
Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
J. Craig Williams: Welcome to the Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a blog named “May It Please the Court” and have two books out entitled “How to Get Sued” and “The Sled”.
This week as we honor the legacy of Martin Luther King Jr. the spotlight shifted to the controversial use of the Filibuster over voting rights legislation in the Senate. In a tweet calling out Senators McConnell, Manchin and Sinema mentioned Bernice King, who’s the daughter of Martin Luther King Jr., quoted her father’s comments from nearly 60 years ago, “I think the tragedy is that we have a Congress with a Senate that has a minority of misguided senators who will use the Filibuster to keep the majority of people from even voting,” so why is there so much controversy over the Filibuster? How is it impacting legislation and is reform the answer?
Well today on Lawyer 2 Lawyer will spotlight the Filibuster discussing the history of the Filibuster, the present impact and the power and the constitutionality of the nuclear option in the future of the Filibuster and to do that we are joined by Professor Michael J Gerhardt from UNC School of Law where his teaching and research focuses on constitutional conflicts between presidents and congress. Professor Gerhardt’s extensive public service has included his testifying more than 20 times before Congress including as the only joint witness in the Clinton impeachment proceedings in the house, he spoke behind closed doors to the entire House of Representatives educating them about the history of impeachment in 1998, he served as Special Counsel to the Senate Judiciary Committee for eight of the nine sitting Supreme Court Justices and is one of the four constitutional scholars called by the House Judiciary Committee during President Trump’s impeachment proceedings. You can check out Michael’s white paper: Is the Filibuster constitutional? for a great source on today’s topic. Welcome to the show, Professor Gerhardt.
Michael J. Gerhardt: Thank you for having me.
J. Craig Williams: Well if you don’t mind I’ll call you Michael.
Michael J. Gerhardt: Of course.
J. Craig Williams: Great, thank you. Can you give us a little bit of a history of the Filibuster? I mean it’s not in the Constitution but where did it come from?
Michael J. Gerhardt: Well it comes from the Senate. It is not, as you pointed out, in the Constitution instead what’s happened is the Senate over the years has developed rules pursuant to its own power that’s given to it in the Constitution to determine rules for its proceedings and the Filibuster that we know today didn’t really come into being until early in the 20th century and then it gets adopted as a formal rule within the Senate. The Senate has rules that govern how people may talk or how long they may talk during proceedings and that is now governed by what we call Senate Rule 22 and that has the different procedures that are available for governing the Filibuster.
J. Craig Williams: What is the reason that we have a Filibuster?
Michael J. Gerhardt: That’s a good question. A lot of people wonder. The basic reason we have the Filibuster is that it’s meant to empower a substantial minority within the Senate to encourage, compromise or to extend debate so that people may be able to hear more from the minority or substantial minority and that is supposed to lead people to brew some kind of compromise, which is actually been the case many times over the years, though because of developments in 1975 the Filibuster is no longer used as a device that really helps to produce compromise. In 1975, Mike Mansfield the senate leader created what’s called a two-track system. What that means is that if somebody threatens a Filibuster immediately whatever is threatened to be filibustered is put aside and instead the business of the Senate moves on to other things and that’s how we now handle it in the Senate and that has produced a real problem because nobody really has to Filibuster and therefore people threatened it all the time as a way to displace that item from the agenda.
J. Craig Williams: Well how is that any different than the Robert’s rules of procedural order of tabling something?
Michael J. Gerhardt: In effect it may not be, it’s just the mechanisms within the Senate that allow a Filibuster to be formally recognized and to formally therefore allow business to be pushed aside and instead there won’t be any debate on the issue being filibustered instead that issue is tabled.
J. Craig Williams: So the old Hollywood version of Mr. Smith goes to Washington and saves the boy scouts in the Filibuster is no longer the case?
Michael J. Gerhardt: It is no longer the case and nobody even if they do undertake a Filibuster is nearly as articulate as Jimmy Stewart.
J. Craig Williams: What’s the role of the Filibuster with respect to the Civil Rights Act and Martin Luther King?
Michael J. Gerhardt: It is actually, it’s quite significant the Filibuster was the primary device that was used before 1975 to prevent any real opportunity for that to come to a vote or to be approved. There were senators from Georgia and other places Strom Thurmond famously from South Carolina, they use the Filibuster as a way to defeat the Civil Rights Act and therefore there really wasn’t any major civil rights legislation that even came close to coming to a vote until the late 50s, eventually Senate Majority Leader Lyndon Johnson was able to allow for a relatively weak Civil Rights Act to get through and then it was only until the 1960s that we have the opportunity to get the 1964 Civil Rights Act, which was successfully not filibustered and that became law.
J. Craig Williams: So this is almost like history repeating itself?
Michael J. Gerhardt: It is. The fact that if Filibuster is available for people to threaten it will displace the Voting Rights Act or really take it off the agenda and that’s how it gets defeated.
J. Craig Williams: What’s the response to the people that say, “Well, have we really learned anything?”
Michael J. Gerhardt: From the Filibuster?
J. Craig Williams: Right. From the Filibuster and the Civil Rights Act, I mean how long did we put off the Civil Rights Act with the Filibuster and here we are doing it again?
Michael J. Gerhardt: Apparently, we haven’t learned that much. The Filibuster has often times has been viewed as really servicing sort of bad interest. It doesn’t really, occasionally, it has helped produce some kind of compromise but like I said after 1975 it’s just there to defeat things.
J. Craig Williams: And it seems to be doing a pretty good job of it at the current rate.
Michael J. Gerhardt: Unfortunately.
J. Craig Williams: Let’s take a look at the Constitutional aspects of it. I mean there’s certainly an argument that the rule of the Filibuster has elevated itself to a constitutional mandate for the supermajority requirements that the Constitution requires.
Michael J. Gerhardt: Well, the Constitution doesn’t require anything as it relates to the Filibuster. Everything that relates to this under the Constitution begins and ends with Article 1 Section 5 which empowers each chamber of Congress to adopt its own rules for their proceedings so that’s the key Article 1 Section 5 therefore allows the Senate to adopt its rules, they did and Rule 22 says that a procedure and that that rule requires only a simple majority really to change the rules of the Senate as they might pertain to the Filibuster but here’s the key, the rules also provide under Rule 22 that if there may be a Filibuster of a motion to amend the rules and that is what requires a supermajority to defeat.
J. Craig Williams: There are things in the Constitution that requires supermajorities does the Filibuster now equate itself with those supermajority requirements in the Constitution because of this?
Michael J. Gerhardt: Well it’s only rule the supermajority requirement in the Constitution or just that the Constitutional rules, the Filibuster is not formally a constitutional rule but it does have the effect. I mean, its effect is real and it can terminate discussion or debate or even a chance to vote on something.
J. Craig Williams: So do we have a solution to the current situation in terms of either getting rid of the Filibuster or keeping it in place forever or is this something we’re going to be living with?
Michael J. Gerhardt: The primary solution as developed in the form of what is called the Nuclear Option and that is another procedural mechanism available in the Senate and that simply allows for somebody to appeal to the presiding officer of the Senate for a vote on whether or not the Filibuster is being used properly under the circumstances and that’s how the Filibuster got defeated for judicial nominations and other business.
J. Craig Williams: Does that require a supermajority vote? Is that just simply a —
Michael J. Gerhardt: No, that’s just a simple majority vote and all you really need is a simple majority to adopt what’s called the Nuclear Option but Democrats may not have that civil majority.
J. Craig Williams: So it is more of a political gamesmanship than anything else.
J. Craig Williams: I mean it depends on how they need Republicans there in office and it depends on how many Democrats are in office at any given time?
Michael J. Gerhardt: Right, it is purely a numbers game.
J. Craig Williams: So it seems as if people want get past the Filibuster then their solution is to vote their party in?
Michael J. Gerhardt: Correct. If there were more than — right now Democrats have a majority because the Vice President is a Democrat, if there were more Democrats than let’s say 50 then it would be very easy to adopt the Nuclear Option and that allows for the rule to be in a sense reconstructed or reconsidered or reinterpreted in a way that would disallow Filibusters of let’s say the Voting Rights.
J. Craig Williams: And it seems like we have two Senators, Manchin and Sinema who or democrats who are standing in the way of the voting rights legislation that we currently have using the Filibuster is the tool.
Michael J. Gerhardt: Yeah, that’s right.
J. Craig Williams: Is Filibuster the type of thing that should be wielded as a sword by one or two people?
Michael J. Gerhardt: That was not the original idea behind the use of something like the Filibuster but that’s what it has become under the current rules and practice of the Senate.
J. Craig Williams: Now you hear that there’s the parliamentarian who has some things to say about this, what role is the parliamentarian play in all of this discussion?
Michael J. Gerhardt: The parliamentarian is given the opportunity to issue a ruling on whether or not the Filibuster is being properly used or not or whether or not the Filibuster’s is constitutional and so typically the parliamentarian rules that the Filibuster is constitutional under Article 1 Section 5 of the Constitution but the problem in turn may be overruled by a simple majority of the Senate.
J. Craig Williams: We have Bernice King, who’s the daughter of Martin Luther King who is said that there is a Congress with a Senate that has a majority of what she calls misguided senators who use the Filibuster to keep the majority people from even voting, is that hyperbole or is that actually what’s happening?
Michael J. Gerhardt: I think that’s an apt description of the current process.
J. Craig Williams: So really the only way we’re going to solve our way out of this is a political solution in the long run, is that your —
Michael J. Gerhardt: Yes, that seems to be the only way out of this, you’re not able to go to court to do anything about this and the courts won’t hear it and never really have heard it and it simply is left in the hands of the Senators and the Senators therefore are responsible for coming up with a solution.
J. Craig Williams: So there a trading going on? You know we’ve seen Biden go over and meet with Sinema and meet with Manchin and try to get these Voting Rights passed but he hasn’t been successful, it seems pretty dismal at the prospects of it, what kinds of things can these people want in terms of trade?
Michael J. Gerhardt: Well, you’re absolutely right that a trade is what is theoretically possible with a Filibuster but the Senators, Manchin and Sinema are wrong that anybody on the Republican side wants to negotiate. Republicans act as a block therefore they have 50 votes to do nothing which is what requires Democrats to be United and therefore to be able to use the Vice President to break that tie.
J. Craig Williams: You know you had the opportunity amazingly so to sit before Congress in a wide variety of roles, what’s your personal impression of how the Senators are handling this? Is their strife within the senate or is this something that is just the exercise of procedure among good friends?
Michael J. Gerhardt: Oh no, there is tremendous strife within the Senate. The world has changed even since 1975. There’s not really the good humor or the collegiality that would allow for any kind of compromise to be done particularly under then Senate Majority Leader, Mitch McConnell, the Republicans have become very effective operating as a block, they have no defectors and that tells us that you have 50 Republican senators who do not want any new voting rights legislation.
J. Craig Williams: So there’re 50 states that are the ones that are left to deal with or not 50, half the states because it’s two senators per state so we have half the state one side and half the state is the other side, sounds like an impasse that isn’t going to get solved?
Michael J. Gerhardt: It’s not going to get solved except by politics and ironically by voters going to the polls to elect different people as senators and so the irony here is extremely tragic.
J. Craig Williams: And it’s tragic in the sense that there seems to have been more COVID deaths to Republicans than to Democrats and the basis being thinned out as another political divide in terms of whether it’s a hoax or not.
Michael J. Gerhardt: Yes and the fact is that COVID is a reality, it’s not any kind of hyped up thing and COVID really kills people and unfortunately many Republicans are sort of party to or complicit with allowing misinformation about COVID and the vaccine in particular to proliferate and that really is tragic, it’s deadly.
J. Craig Williams: Right and it seems from the statistics that I’ve read there are more Republicans than there are Democrats that are dying, there is a an uptick in the number of young Millennials and Generation Zs that are turning Democrat, do you see a political shift on the horizon?
Michael J. Gerhardt: Well, I suppose it’s theoretically possible but we’re talking huge numbers and unfortunately, the Senators that really are responsible for road blocking this are coming from what we call Red States and so they are rather secure in remaining Republicans because of the states from which they come.
J. Craig Williams: Can we dive into the differences between the 1964 Voting Act and the legislation that we see in front of us? I mean, what is the reason that we’re passing new legislation? Why isn’t what we have good enough?
Michael J. Gerhardt: Well, the 1965 Voting Rights Act was historic and that really provided a number of different protective mechanisms that were designed to do just that protect people’s ability to gain access to the polls so that they could vote. The problem is that the Supreme Court led by Republican appointees have struck down key mechanisms within the Voting Rights Act of 1965 to turn it into basically a piece of paper that means very little and that’s why we need a new Voting Rights Act in order to put together real and meaningful mechanisms to protect people’s access to be able to go to the polls and cast their votes.
J. Craig Williams: So the Supreme Court has essentially gutted the Voting Rights Act and almost in the same way that they’ve gutted down the Miranda rulings?
Michael J. Gerhardt: Exactly, they’ve got the Voting Rights Act even more so.
J. Craig Williams: Voting is done by individual states and counted and so forth, how is it that the states cannot pass this legislation?
Michael J. Gerhardt: Because the states themselves are or at least many key states are governed by Republican majorities and those Republican majorities are largely doing the bidding of former President Trump and sort of the hardcore members within the party who don’t want as many people to be able to go to the polls to be able to cast their votes instead, Republican majorities in very many states want fewer people to be able to get to the polls that is to say they just want their voters to be able to get to the polls when it’s possible or convenient for them and they want to make it harder for Democratic voters to get to the polls when it would be convenient for them.
J. Craig Williams: And gerrymandering plays a huge role in all of this?
Michael J. Gerhardt: Yes, gerrymandering is the key thing, so gerrymandering essentially entails a state legislature developing the districts through which people vote and those districts have been in a sense gimmicked in such a way to allow for Republican incumbents to remain securely in office and we just get into a vicious cycle of incumbents winning and therefore voting against Voting Rights Act instead of the state level voting to restrict access to voting.
J. Craig Williams: You’ve also had some strong relationships with the nine sitting Supreme Court Justices and worked as special counsel, what role do you see the Supreme Court playing in any future voting rights legislation that comes before that or are they going to do the same as they’ve done with the 1965 Act?
Michael J. Gerhardt: Yes, in fact those Justices who have gutted the Act are currently on the Supreme Court and they will likely gut anything else that looks like the original Voting Rights Act so there is a problem in that the Republican Party particularly under President Trump and the current Republicans in the Senate, they are all united in trying to restrict access to voting so it would enable them to be able to maintain their power and make it virtually impossible for Democrats to get elected in their respective states.
J. Craig Williams: Do the Democrats have any hope or if they’ve just been out procedure?
Michael J. Gerhardt: They’ve been out procedure. Democrats unlike Republicans do not hang together very well and that’s the source of the problem here. We’ve got two Democrats that don’t want to play by their party’s rules
Michael J. Gerhardt: Republicans seem to be very effective at remaining united; Democrats are notorious for being fractured, disorganized and ineffective.
J. Craig Williams: That’s quite an indictment.
Michael J. Gerhardt: It’s true.
J. Craig Williams: So the only real hope I guess it is that it lies in the hands of the voters themselves to put somebody in office that’s going to pass this type of legislation and what’s the window that we expect to see for any kind of changes in the architecture of the Supreme Court?
Michael J. Gerhardt: Oh I don’t think there’s going to be any changes on the Supreme Court for the foreseeable future and probably beyond that. President Trump for example got three appointees kind of ran through the Senate and that’s allowed the creation of or the establishing of a very rigid six to three majority on the Supreme Court of Republicans versus Democratic appointees. The six Republican appointees to the Supreme Court are largely voting as a block. Occasionally they might be one defector perhaps the Chief Justice John Roberts but that still leaves five who are very firmly committed to doing whatever the Republican Party wants them to do on voting rights legislation.
J. Craig Williams: There has been some discussion in some circles that were seeing the end of democracy as it used to exist or certainly as many people wish it would be, what are your thoughts on where we’re headed?
Michael J. Gerhardt: Well the reason why we say this is tragic is because voting is essential for democracy to thrive but if people have difficulty getting access to the vote, then voting becomes less effective as a mechanism for allowing for any change in the voting mechanisms and that’s the ironic and tragic problem we have right now which is too many states are governed by too many people who don’t want people to have access to voting and it’s really hard to remove any of those people who are opposed to changing the system.
J. Craig Williams: Has anyone offered any estimates on the number of people that are not voting as a result of all of this effort?
Michael J. Gerhardt: Well here’s the thing, many of the people actually were able to vote this last go around which is why we have a President Biden and why we have two Democratic Senators from the State of Georgia but the State of Georgia is still led by Republicans in the legislature and they have now kind of retooled their electoral system, other states are making it harder for people to vote so that what Republicans view as mistakes in 2020 will not be repeated in 2024.
J. Craig Williams: Michael, it looks like we just about reached the end of our program so I’d like to take this opportunity to let you share your final thoughts as well as your contact information so our listeners can reach out to you if they have more questions.
Michael J. Gerhardt: Oh sure. I appreciate that. Well, we are talking about the most important, the central issue in not just constitutional law but in politics right now and that is the right to vote or which really depends on access to voting and access to voting right now is being governed by the Republican Party in such a way across so many states that trying to change any kind of system that relates to voting is very difficult if not impossible as a practical matter. People are welcome to email me questions at [email protected].
I would however prefer no hate mail, if that could be prevented, I have often gotten a lot of hate emails when I’ve testified including the circumstances you’ve mentioned in your very kind introduction, I don’t need the hate mail. I’m willing to engage in any kind of constructive conversation.
J. Craig Williams: Well I’m hopeful that you’ll find our listeners a little bit more erudite than that.
Michael J. Gerhardt: I’m sure, I’m sure I will.
J. Craig Williams: Well Michael, thank you very much for joining. It has been a pleasure having you on the show.
Michael J. Gerhardt: It’s really been terrific, thank you.
J. Craig Williams: Overall, I think we’re witnessing the fall of the Roman Empire were in this instance, the fall of Democracy when there is only one party that’s voting it’s not a two-party system and it certainly not democracy. This is a clearly call for action, Filibuster is just a minor part in the great scheme that exists from the Supreme Court to Congress to the state legislatures as you’ve heard and if we don’t do something about it, this is the end of it. Well, if you like what you’ve heard today please rate us on Apple Podcast as your favorite podcasting app. You can also visit us at the legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. When you want legal think Lawyer 2 Lawyer.
Outro: Thanks for listening to Lawyer 2 Lawyer produced by the broadcast professionals at Legal Talk Network. Subscribe to the RSS feed on legaltalknetwork.com or on iTunes.
The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
Podcast transcription by Tech-Synergy.com