This week, the Senate unanimously passed legislation to make lynching — extralegal execution by mob action — a federal hate crime, less than a month after the House passed the bill. The Emmett Till Antilynching Act is named after Emmett Till, a 14-year-old African American boy who in August 1955 was lynched in Mississippi for allegedly whistling at a White woman. Introduced in the House by Rep. Bobby L. Rush (D-Ill.), the bill passed 422 to 3, with only Republicans Andrew S. Clyde (Ga.), Thomas Massie (Ky.), and Chip Roy (Tex.) voting in opposition.
Congress first considered an anti-lynching bill in 1900, when it was introduced by Rep. George White (R-N.C.) — the only African American then in Congress. It was unsuccessful.
Since then, members of Congress have introduced more than 240 anti-lynching bills, most recently in 2018 and 2020. All have failed.
Usually, that’s because a powerful Senate minority blocked the bill — until this week.
History of anti-lynching bills in the United States
During the Reconstruction era, a Republican Congress passed constitutional amendments and laws ensuring African Americans had citizenship, voting rights and civil rights protections. African Americans became loyal GOP voters, and Republicans, for a time, ran successfully in the South.
By the late 1870s, however, Democrats took back the Southern state governments and threatened African Americans with violence and intimidation when they tried to vote. National Republican leaders initially resisted these Democratic-backed terror tactics, but by the 1890s — as we show in our research — they gave up actively supporting African American civil rights.
Lynching was one terror tactic frequently used against African Americans to maintain white supremacy in the Jim Crow South. Tuskegee University, which collected data on lynchings, estimates that 4,723 people were lynched between 1882 and 1968. More than 70 percent were African American.
Republican neglect of Black citizens would begin to change after World War I, when several million Southern Black people migrated to Northern cities for work. Noticing these newly important voting blocs, Republican lawmakers regained interest in representing African Americans.
In the 1920s, Rep. Leonidas Dyer (R-Mo.), whose Missouri House district comprised a heavily Black area of St. Louis, became the new anti-lynching champion. After Whites rioted against Black residents in East St. Louis, killing dozens of people, Dyer sponsored a federal anti-lynching bill that passed the House in January 1922, with a large majority of Republicans opposing nearly all Democrats.
Later in the year, the Republican-controlled Senate took up the Dyer bill, but it was blocked by Southern Democrats. Rather than continue to fight as agenda time dwindled, Senate Republicans eventually moved on to other legislation.
The filibuster and the oversized power of small Senate minorities
Southern Democrats were determined to block Dyer’s bill, and they were willing to run out the clock to do it.
Anti-lynching resurfaced again in Congress more than a decade later, as the parties were beginning to switch sides on race. As president, Franklin Delano Roosevelt’s New Deal policies helped move African Americans into the Democratic column by 1936. As a result, national Democrats — almost exclusively from the North — now championed Black civil rights while Republicans slowly became opponents.
House Democrats passed federal anti-lynching legislation twice, in 1937 and 1940. As our research shows, both times, Senate filibusters blocked the bills, with Southern Democrats now joined by Northern Republicans.
The lesson from this era was clear: a small, intensely committed Senate minority was able to use Senate rules to block change and maintain the Jim Crow system in the South.
The Democrats’ 1940 House bill was the last time federal anti-lynching legislation passed either congressional chamber for more than three-quarters of a century.
Anti-lynching reemerges in Congress
In June 2018, after a white-supremacist rally in Charlottesville, Va., a car attack killed one woman and injured several others. Three African American senators — Kamala D. Harris (D-Calif.), Cory Booker (D-N.J.), and Tim Scott (R-S.C.) — sponsored a new federal anti-lynching bill that would classify lynching as a federal hate crime. In December 2018, the Senate adopted it unanimously during the lame-duck session. But with only a few days left before the Congress adjourned, the House didn’t take it up.
But the Harris-Booker-Scott bill generated some momentum. In January 2019, at the start of the new Congress, Rep. Bobby Rush first introduced the Emmett Till Antilynching Act. The House passed it in February 2020, on a 410-to-4 vote.
Several months later, while the country was roiled by civil rights protests after the murder of George Floyd, the Democrats who controlled the Senate brought the Emmett Till bill to the floor for consideration, attempting to pass it by unanimous consent. Rand Paul rejected that, arguing that the bill’s language was overly broad and would make the crime of lynching too encompassing. As Paul said at the time, “I don’t think it’s a good idea to conflate someone who has an altercation, where they had minor bruises, with lynching. … That’s a disservice to those who were lynched in our history.”
Now in 2022, a federal anti-lynching bill will finally be presented to the president and signed into law. Paul co-sponsored the bill after having worked with Booker and Scott to modify the bill’s language to address his concerns.
The century-long effort to pass federal anti-lynching legislation highlights the power the Senate affords intense legislative minorities. Anti-lynching advocates have been battling to enact a federal law for more than 100 years. Each time a committed Senate minority has successfully opposed it — until this week’s landmark breakthrough.
Jeffery A. Jenkins (@jaj7d) is the provost professor of public policy, political science, and law, the Judith and John Bedrosian chair of governance and the public enterprise, director of the Bedrosian Center, and director of the Political Institutions and Political Economy Collaborative at University of Southern California. He is co-author of “Republican Party Politics and the American South, 1865-1968” (Cambridge University Press, 2020) and “Congress and the First Civil Rights Era, 1861-1918” (University of Chicago Press, 2021).
Justin Peck is assistant professor of government at Wesleyan University. He is the co-author of “Congress and the First Civil Rights Era, 1861-1918” (University of Chicago Press, 2021).