An Open Letter to Kyrsten Sinema

The Filibuster, Democracy, and Our Right to Vote

April 1, 2021

Dear Senator Sinema:

Thank you for your prompt reply to my letter regarding the filibuster. As you recall I asked that you consider a compromise. The current Senate rules enable 41 senators to kill any and all proposed legislation by threatening to filibuster. The original Senate rules allowed 51 senators to invoke cloture and kill all debate. The compromise would allow a majority vote by senators to limit debate to one week. I appreciate your providing me with your arguments in favor of the current Senate rules:

I have long said that I oppose eliminating the filibuster for votes on legislation. Retaining the legislative filibuster is not meant to impede the things we want to get done.” The legislative filibuster enabled the Ku Klux Klan to hang black people from poplar trees. For 100 years it allowed Scottsdale to outlaw black people after dark. It prevented black Georgians from voting unless they knew how many bubbles were in a cake of soap. You’re right, the filibuster wasn’t “meant to” impede the fight against lynching, Jim Crow, and voter suppression, but it did. The Dyer Anti-Lynching Bill passed the House in 1922 and was blocked by a Senate filibuster. It wasn’t until last year that the Emmett Till Antilynching Act finally passed both the House and Senate.

You say the filibuster “was meant to protect what the Senate was designed to be. With all due respect, that simply isn’t true. The US Constitution was ratified in 1781 and it quickly proved to be a miserable failure. Nothing got done because the states had all the power. The central government was virtually powerless. The first Congress following the Revolutionary War was barely able to assemble a quorum to ratify the peace treaty. The constitution wasn’t working, so a new one was drafted and ratified in 1788.

The founders weren’t much concerned about what the constitution was designed to be, their focus was on results. Thomas Jefferson mused that a new constitution should be enacted every 19 years, because each new generation faces new challenges. Of course we’re not talking about something as momentous as a new constitution here. We’re also not talking about dropping a hydrogen bomb, even though you used the phrase “nuclear option” three times in your letter. We’re just talking about a change in the Senate rules to protect the most fundamental right in any democracy, the right to vote.

The Senate wasn’t designed to advance the interests of the people, it was designed to advance the interests of the states. Senators were selected by state legislatures. By design, debate could be shut down with a simple majority vote. States with small populations had the same say in the Senate as states with large populations.. As James Madison explained in the Federalist #62, the design of the Senate was “… the result of compromise between the opposite pretensions of the large and the small States…

Lincoln described a “government of the people, by the people, for the people…”, but the Senate is the least proportionally representative legislative body in the free world. Wyoming has 67 times more representation in the Senate, per person, than California. The filibuster makes the Senate even less representative. Legislation for 328 million Americans can be blocked by 41 Senators, representing as few as 38 million Americans.

In your letter you pledge to “continue working across the aisle with my colleagues in the United States Senate to ensure our legislative process upholds the integrity of our democracy.” However, as Fareed Zakaria has pointed out, because of the filibuster, “The Senate doesn’t observe the founding tenant of a democracy, majority rule.” The filibuster isn’t democratic and upholding the filibuster only perpetuates an undemocratic anachronism, born of an unintended consequence.

Contrary to your misreading of history the filibuster wasn’t “meant to” do anything. The first filibuster was the exploitation of a loophole. In testimony before the US Senate Committee on Rules and Administration, Sarah Binder explained that, “In 1805, Vice President Aaron Burr was presiding over the Senate… and said something like this. You are a great deliberative body. But a truly great Senate would have a cleaner rule book. Yours is a mess. You have lots of rules that do the same thing. And he singles out the previous question motion…When they met in 1806, they dropped the motion from the Senate rule book.” The elimination of the previous question motion created a loophole that enabled unlimited debate. As you point out, this unintended loophole was first exploited 1837.

The filibuster issue isn’t a trade-off between “some short-term legislative gains,” and “the long-term health of our government,” as you frame it. The best way to ensure the health of our democracy is to ensure the health of our elections. The health of our democratic government isn’t threatened by a modification of the Senate rules, the big threat comes from the attacks by states on our right to vote. At last count 166 voter restriction bills have been introduced in 33 state legislatures. Here in Arizona, where 80% voted by mail in the November election, ballots would be mailed to voters just before election day and have to be recieved by the state before election day. Ballots would be rejected unless they included a copy of the voter’s driver’s license and a signed, witnessed, affidavit. There wouldn’t be near enough notary publics to certify all of the affidavits. The intent is clear, voter suppression.

Passage of the For the People Act by the Senate won’t merely be “a short term legislative gain,” it will save our system of free, fair elections from those who violently attacked it two months ago. That attempt failed, but without a modification of Senate rules and passage of a voter’s rights bill, the current attempt will succeed. The best way for you to help insure the integrity of our elections to is to negotiate across the aisle to eliminate or fix the unworkable parts of the current 800 page bill. Some of these potential problems were recently cited in the New York Times: the small-dollar public financing plan, national voting requirements, the regulation of voting machines, and the provision that mail-in ballots can arrive as long as 10 days after an election.

You say, “Regardless of the party in control of the Senate, respecting the opinions of senators from the minority party will result in better, commonsense legislation. My position remains exactly the same now that I serve in the majority.” Limiting debate wouldn’t disrespect the opinions of the minority, it would ensure that both the minority and majority are heard. Speaking of being heard, 31% of Arizona voters are now registered as “other,” disdain for the two major political parties grows, in large part because the Senate filibuster enables gridlock. It prevents us from, to use one of your favorite catchphrases, “getting things done.”

Senator Sinema, this is only the fourth time in history that the Senate has been equally split between the major parties. You only need to find one Republican, or Joe Manchin, to form a gang of two. Using Rule XX, a compromise could be reached that would enable Senators to, as you say, “put politics aside and fully consider, debate, and reach compromise on legislative issues that will affect all Americans.” They’d have a full week to do it. Every business in America works within deadlines, why shouldn’t the business of the Senate?

Limiting Senate debate isn’t new or untried. Just last month the Senate limited debate in the impeachment of a President, one of the most important actions it can undertake. Allowing a simple majority of Senators to limit debate for one week in legislative matters won’t “deepen partisan divisions,” it will focus arguments as it did in the impeachment trial. An endless impeachment trial wouldn’t have benefited anyone. Allowing a majority of senators to limit debate to a week is a compromise that will benefit everyone, including you. This is an opportunity for you to show that you can do what leaders do, which is to lead.

Thank you for your time, Jerry Joslyn, jj@zevway.com