What is the connection between the Republican takeover of the Senate in the midterm elections and the grand jury decision in Ferguson, Missouri not to indict the policeman who shot Michael Brown?  I would not have made any myself, if I did not happen to be reading Robert Caro’s series on Lyndon Johnson.  Reading Caro helps draw lines from the two events back to the 1930s when they intersect with earlier obstructionist Senators blocking efforts to pass anti-lynching legislation, that festered grievances against racial bias in our criminal justice system.   This newly strengthened Congress has made clear it will obstruct issues on the national agenda, but which ones will continue to fester for years to come?

In his third volume on Johnson’s Senate years, Master of the Senate, Caro sets up Johnson’s rise to positions of leadership with an extended history of that body, its deliberative function and the slow procedural mechanisms.  The author maneuvers through several Senate eras, from its original establishment in the Constitutional as a deliberative body of six-year tenured aristocrats in order to check not only the power of the executive, but also the transitory sentiments of the popular will, as represented in the House of Representatives.  The golden age of deliberation and compromise during the Senate of Webster, Calhoun and Clay gave way to an all-out brawl with the executive during reconstruction.  Then, the Gilded Age ushered in an extended era of obfuscation and obstruction, broken only by a flurry of progressive bills that passed during Woodrow Wilson’s early years in the White House and then later during FDR’s first term.  The rules established in the Senate allowed for a handful of leaders to manipulate parliamentary procedure and prevent bills that might reign in the excesses of business or that would ratify the Treaty of Versailles ending the “Great War,” effectively keeping the U.S. out of the League of Nations.

These precedents of delay and obstruction in the Senate paved the way for the battleground over civil rights.   The procedure was the filibuster and the related provisions of cloture to cut off debate.   When Congress used these tactics to obstruct a measure to integrate the armed forces following the Second World War, President Harry Truman turned to an executive order in 1948 to accomplish this, much like Obama is using his executive authority in the failure of Congress, in this case the House, to act on immigration reform.

NAACP protest in 1937 against lynching. Photo, Library of Congress

Yet, it was the inability of Congress to outlaw lynching that the connection reaches to Ferguson, Missouri.  On its face, the horrifying practice of lynching would seem to be one issue that would be easy to muster up a majority to make illegal.   However, during the period between 1882 and 1968 when almost 3500 African-Americans were murdered by lynching, over 200 times bills were introduced in Congress to outlaw the extrajudicial killing.  Presidents repeatedly asked Congress to pass a law, but only  three times did a bill pass the House.  Caro focuses on those three in his book, in 1922, 1935 and 1938, describing the use of the filibuster and the cloture rule to prevent passage of those bills in the Senate.  He describes in detail the tactics of Richard Russell, the powerful Democratic Senator from Georgia, whose home town of Winder was the site of several prominent such murders.  Russell couched his opposition to the lynching bill in the Constitutional prerogatives of the Senate, including the need to protect the filibuster and cloture as mechanisms to ensure checks and balances.  He wanted to ensure no civil rights bill, of any ilk, would pass.

This history of extrajudicial killings weighs heavily on what has transpired in Ferguson, Missouri.  While no one is calling the killing of Michael Brown a lynching, the number of protests since his death does seem to make such a link, though, at least into the extended past of unpunished killings of African-Americans.  For many, what happened to Michael Brown had more to with a history of bias in the criminal justice system than the actual facts of this individual case, however tragic it was.  That past that reaches back even beyond the refusal to outlaw lynchings is not even that distant, certainly well within the lifetimes of many alive today.

It can be debated what the impact on race relations today would have been if Congress had not obstructed efforts to outlaw lynching in 1938, or 1922, or even earlier.  What did happen, though, in 2005, was a recognition that more should have been done.  That year, the Senate adopted a resolution apologizing for its history of refusing to pass such a law.  It was a non-binding resolution to correct “inaction on what were great injustices,” according to then White House Press Secretary Scott McClellan.  One of the bill’s sponsors noted that “the Senate failed you and your ancestors and our nation,” in remarks before families of victims.  That Senator was Mary Landrieu, a Democrat from Louisiana, who will likely lose her seat this week in a run-off election, on December 6.

The mid-term elections strengthened a Congress that has made clear it will use all its powers and procedures available to obstruct action on any number of issues of national urgency – health care for millions of uninsured, climate change, closing Guantanamo prison, immigration reform.  This is not about exceeding its Constitutional authorities.  Congress, over 80 years, used its own rules of filibuster and cloture to obstruct anti-lynching legislation.  However, as Caro and Landrieu point out, it used its deliberative rules as an excuse for inaction, to protect narrow interests.  “Failing the nation,” the Senate kept alive a bias in the criminal justice system that many see played out again in 2014 in Ferguson Missouri.  On which issue will its obstruction require an apology for failing to act 50, 80, 100 years from now?