Your weekly source for analysis and insight from experts at the Brennan Center for Justice
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The Briefing
Overnight, Sens. Charles Schumer and Mitch McConnell agreed on a plan for how the Senate will run with its slim Democratic majority. What held them up was McConnell’s insistence that the Democrats forswear filibuster reform for two years.
That’s high-level chutzpah, of course. McConnell himself ended the filibuster for Supreme Court nominees in 2017, so he could swiftly add two new conservative justices. Previously, Democrats had done the same for other nominees. Changes to Senate rules — even abolishing the filibuster — is not only something that has been done, but done recently, and by both sides.
All this preserves for another day the question of what to do with the broken U.S. Senate.
It’s important to understand that the current status quo — that 60 votes rather than a simple majority are needed for everything, from major legislation to naming a post office — is not required, time-tested, or wise. It’s a relatively new, bad thing. And it gives extraordinary, destructive power to minorities to thwart needed action.
Many mistakenly assume the filibuster originated in the Constitution. In fact, the framers considered and rejected the idea of requiring supermajorities to pass legislation. It was used throughout the 20th century especially as a way to thwart civil rights legislation. Then, as parties grew more polarized, it became used to block... well, almost anything.
At the Brennan Center, we have argued it’s time to abolish the filibuster altogether
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. Should the Senate slow things down, find a way to deliberate and cogitate over legislation? Sure. But today’s filibuster abuse has made that a fanciful notion.
As Brennan Center Senior Fellow Caroline Fredrickson writes, “The filibuster has made the Senate a graveyard of new ideas.” It doesn’t spur cooperation or centrist dealmaking. It just lets a fraction of the minority party stop anything from happening. We saw it, for example, after the Sandy Hook school massacre, when a strong majority of the Senate (and 9 out of 10 voters) supported universal background checks for gun purchases, but the filibuster doomed action on the bipartisan Manchin-Toomey bill.
As framers including James Madison and Alexander Hamilton were well aware, the Senate itself challenges majority rule. They only agreed to giving states equal representation to stop small states such as Delaware from breaking off and making military alliances with European powers.
The imbalance is even worse now. California’s 39 million residents get two senators in Washington — the same as Wyoming’s 579,000. That has stark racial implications: in Wyoming residents are 16 percent people of color, while in California they hold a wide majority. As the country changes, its institutions must find a way to change with them. A permanent, unbreakable filibuster makes that even harder. (And don’t get us started on the Electoral College.)
Former President Barack Obama was right when, at Rep. John Lewis’s funeral, he called the filibuster a “Jim Crow relic.” It played a shameful role in blocking Black progress six decades ago. We must make sure it does not reprise that role in today’s struggles for voting rights, democracy reform, criminal justice reform, and the other steps the country needs.
Democracy
Corporations and Fixing Campaign Finance
In the wake of the insurrection at the Capitol, some of the nation’s biggest corporations announced they will pause or end corporate PAC contributions to lawmakers who voted against certification of the election. For powerful companies to shun elected officials like this is noteworthy, but direct contributions represent only one of the channels through which corporate money flows, legally, to campaigns. “If we want our campaign finance system to promote true accountability, we must change the law to make it so,” write Lawrence Norden and Daniel Weiner. // Read More
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Biden Gave the Inauguration Speech America Needed
With plain language, President Biden’s inaugural address was just right for the place and moment. As in many inaugural addresses, there were pledges for unity, progress, and action. But never before have these ideas felt more relevant. “The context transformed the speech,” writes Michael Waldman, a former chief presidential speechwriter himself. // Read More
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Constitution
The ‘Muslim Ban’ Is Gone. Now What?
On his first day in office, Biden reversed Trump’s bans on immigrants from predominantly Muslim and African countries. It’s an important action, but only a first step: the damage stemming from the past administration’s concerted targeting of immigrants won’t be undone overnight. Harsha Panduranga walks through what needs to happen next, such as devoting resources to addressing the status of people held up in backlogs, reversing social media screening for visa applicants, and rejecting policies that have stigmatized Muslim and Arab people. // Read More
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How Congress Can Rein in the Abuse of Presidential Emergency Powers
Trump’s presidency revealed a fatal weakness in the law governing national emergencies. Under the National Emergencies Act, the president has near-total discretion to declare a national emergency, and while the law used to allow Congress to terminate emergency declarations, its role has been gutted. “The time to fix that law is precisely when the White House is occupied by someone who is unlikely to abuse it,” writes Elizabeth Goitein. // Politico
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Coming Up
VIRTUAL EVENT: Bad Partners: Why Local Law Enforcement Should Leave FBI Joint Terrorism Task Forces
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Thursday, February 11 | 5:00 p.m.–6:00 p.m. ET
FBI Joint Terrorism Task Forces (JTTFs) inflict harm on local communities through racial profiling, harassment, suspicionless surveillance and investigations, and exploitation of immigration enforcement, all of which are authorized under federal guidelines loosened after 9/11. The FBI relies on the labor of state and local law enforcement officers assigned to the JTTFs, who agree to follow federal guidelines even if they conflict with state and local law. Civil rights advocates and community groups have organized successful campaigns to demand that their city governments hold local police accountable to local laws and ultimately withdraw from the JTTFs. Advocates from these campaigns, including Zahra Billoo (executive director, CAIR-SFBA), Javeria Jamil (staff attorney, Asian Americans Advancing Justice/Asian Law Caucus), and Brandon Mayfield (Oregon lawyer and activist), will share their experience with Brennan Center Fellow Michael German. RSVP today
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This event is produced in partnership with New York University’s John Brademas Center.
VIRTUAL EVENT: America’s Broken Legal System
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Wednesday, February 17 | 6:00 p.m.–7:00 p.m. ET
Too often, the criminal justice system compels innocent people to plead guilty. It disproportionately incarcerates Black and brown Americans, often for relatively minor offenses. Meanwhile, high-level executives are rarely prosecuted or held accountable for much more serious crimes. Jed S. Rakoff, a federal trial judge and an expert on white-collar crime, examines these and other paradoxes in a new book, Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System
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He will be joined by Hernandez Stroud, counsel in the Brennan Center’s Justice Program, to discuss the shortcomings of the country’s legal system and propose paths to reform. RSVP today
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This event is produced in partnership with New York University’s John Brademas Center.
News
Caroline Fredrickson on abolishing the filibuster // Philadelphia Inquirer
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Michael German on why “War on Terror” tactics aren’t the solution to address white supremacist violence // Daily Beast
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Michael Li on how gerrymandering will protect the Republicans who challenged the election results // New York Times
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Harsha Panduranga on Biden’s reversal of the Muslim ban // BuzzFeed News
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Faiza Patel on why Congress shouldn’t expand domestic terrorism legal authority // Newsweek
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Michael Waldman on Biden’s inaugural address // CNBC
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Wendy Weiser on court decisions that have rolled back voting rights // Mother Jones
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Have an issue you'd like us to cover? Feedback on this newsletter? Email us at
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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.
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