The filibuster is once again in the news, as Republican Senators plan to meet behind closed doors on Tuesday to discuss its future. The filibuster is a peculiar and undemocratic practice of the United States Senate. It doesn’t exist in the House of Representatives. While the term has been broadly used to describe any kind of dilatory tactic that prevents a measure from being passed, in the Senate it specifically describes the practice by a determined group of Senators to deliver lengthy speeches and use parliamentary procedures to “run the clock out” on a Senate session and prevent a vote on the measure, killing the measure when the Senate session ends. By means of the filibuster, a determined group of Senators can prevent the majority from passing legislation. Defenders of the practice claim it is integral to the traditions of the Senate, and a necessary check against hasty legislation. In truth, the filibuster was the accidental byproduct of two Senate rules. And its fortunes reflect a conflict in the Senate between the privileges of individual Senators and the majority’s need to conduct business.
The filibuster was neither a feature of the Constitution, nor part of the Founding Fathers’ plan for the government. The Constitutional Convention did expect the Senate to “cool” hasty legislation passed by the House, but it hoped to achieve that by designing the Senate to be a more stable body, its members selected by the state legislatures for longer, overlapping terms of office. Except in a few cases, such as ratifying treaties when a two-thirds majority is needed, the Constitution requires only a simple majority to pass measures in the Senate.
The Constitution also requires both chambers to adopt rules for their proceedings. In its early days, Congress needed no rule to force the end of a debate and take a vote. The House and Senate were both small bodies; the First Congress ended with only 65 Representative and 26 Senators. Members could talk all they wanted and still leave plenty of time to consider every bill. It was the common expectation across both chambers that eventually members would stop talking and a vote would be taken on every bill.
By 1811, the House had grown to 141 members, and had become difficult to manage. So the House reformed its rules to limit debate and speed up business. Thereafter, a majority could use a motion called the “previous question:” this ends debate and forces a vote on the measure under consideration.
Being a smaller body, it wasn’t until the 1830s that the Senate began to have problems managing debate. Members discovered that they could kill a measure supported by the majority simply by taking the floor and talking until the Senate adjourned or the measure was withdrawn. Thus the filibuster was born. It was a weapon used by a minority of Senators to prevent the majority from passing legislation.
Reformers who hated the filibuster discovered two quirks in the Senate rules that prevented them from abolishing it. Back in 1806, the Senate had abandoned the “previous question” motion because it was rarely used. So it was unavailable. The more important obstacle was that the Senate’s standing rules required a two-thirds majority to change them, unlike the House, where a simple majority sufficed. And there were always at least a third of the Senators, usually in the opposition, who opposed abolishing the filibuster.
Over time, Senators came to view the filibuster as part of the Senate’s tradition of courtesy to individual members, as opposed to the majoritarian spirit of the House. They rationalized the filibuster’s existence as part of the checks and balances integral to Constitutional government. With both tradition and the interests of the minority against it, all efforts to reform the filibuster failed until 1917.
In that year, a small group of Senators filibustered a bill President Woodrow Wilson regarded as essential to prepare for America’s entry into World War I. The President decried the undemocratic nature of the filibuster and appealed to the people. With both the President and popular opinion against it, the Senate reluctantly adopted a procedure to end filibusters: a complicated process called cloture, which would stop debate, but only after several more days had passed. The Senate also required a two-thirds majority to invoke cloture. Not surprisingly, over the next several decades, cloture usually proved ineffective in ending filibusters.
In the years between 1917 and 1964, the filibuster assumed its modern form. Filibusters were few, and reserved for major issues. While they were portrayed as the last defense of the rights of a minority against the tyranny of the majority, in fact, many of the filibusters were staged against civil rights bills designed to protect racial minorities’ rights. Far from the heroism of a Jimmy Stewart staging a filibuster to expose corruption in Mister Smith Goes to Washington (1939), the typical filibuster was more like segregationist Senator Strom Thurmond’s record-setting twenty-four hour speech against the 1957 Civil Rights Act.
The struggle over civil rights bills gave new energy to reformers’ efforts to curtail the filibuster. Their first major success was in using cloture to end a filibuster and force a vote on the 1964 Civil Rights Act. In 1975, they succeeded in lowering the threshold for cloture from two-thirds of the members present to three-fifths of all members, which effectively reduced the number of votes needed to invoke cloture from 67 to 60.
It was not reformers, though, but the press of the Senate’s business that ended the classic talking filibuster. With the number of measures rising every year, the Senate could no longer afford to tie up the floor in futile debate. Procedural innovations in the 1960s and 1970s, such as “holds,” universal consent agreements, and a tracking system paradoxically made it easier for individual members to block some measures without resorting to lengthy floor speeches, while allowing the leadership to expedite the voting on bills they deemed important. Starting in 1973, the Senate also passed legislation making certain kinds of critical measures, such as budget resolutions, immune to filibusters by setting sharp limits on allowed debate. Cumulatively, these measures have eliminated the talking filibuster by making it unnecessary to block legislation, and also reducing the opportunities for it.
The Senate further limited the use of the filibuster in 2013 through the “Constitutional” or “nuclear” option. Since the Constitution requires only a majority vote to pass most measures in the Senate, Senators frustrated with the filibuster have argued since 1917 that the supermajority required to overcome one is unconstitutional. They insist that a filibuster can be stopped by a simple majority of the Senate sustaining a point of order to that effect. But since Senators hated to challenge existing Senate procedure, they were reluctant to embrace this idea until 2013, when anger over minority filibustering of judicial nominees led Majority Leader Harry Reid to use the Constitutional option to prohibit filibusters on certain Executive Branch and judicial nominees.
While some, such as Senator Lindsey Graham, have called for restoring the filibuster to include nominations once again, the trend is clearly in the other direction. It would be surprising if a majority of Senate Republicans support a restoration of the filibuster this Tuesday. And now that it has been used, the Constitutional option will be a tempting possibility for any future Senate majority frustrated by filibusters. We have already seen the demise of the talking filibuster. We may soon see the end of the filibuster altogether.