“The Filibuster: An Obstacle to Progress”

“The Filibuster: An Obstacle to Progress”

I. Introduction 

The filibuster has been described as an obstructionary tactic used to defeat bills and motions, traditionally employed by speaking indefinitely to delay voting on an issue. The term itself comes from Dutch, Spanish, and French words used to describe pirates, plunderers, and more literally, “freebooters.” Once characterized by marathon speeches, reading recipes aloud, singing Sinatra’s “South of The Border” or reading Green Eggs and Ham, the filibuster has now changed course. Instead of hours-long speeches requiring catheter bags and sleeping in the chamber, modern Senate rules in place since the early 1970s allow the so-called “silent filibuster” which merely requires a member to announce an intent to filibuster to, in effect, create a minority veto. The net result is a virtual end to the simple majority rule since any piece of legislation that does not involve budget reconciliation now requires a 60-vote supermajority in the Senate before the Senate can vote on the legislation itself.

Once upon a time, a filibuster on a single bill would bring the entire government to a halt since the Senate considered one bill, or one nomination, at a time. This was both good and bad as though it stopped everything, it also put pressure on all sides to resolve the issue so that the Senate could move forward. That all changed in 1975, when Senator Robert Byrd, the then majority whip, announced dual tracking. This rule change, designed for efficiency, allowed the majority leader to set aside a slow-moving bill to consider other matters and has thus made filibusters largely “pain free.” Going further, some might say that dual tracking, combined with the silent filibuster, has allowed democracy to die in the darkness.

The evolution of the filibuster must be viewed in the context of the current 50/50 split Senate with a tie-breaking vote by the Vice President, combined with Mitch McConnell’s announcement that “100 percent” of his focus as minority leader is “on stopping this administration.” Thus, without some change in circumstance, the country can expect little progress on important matters such as climate change or voting rights. The most prominent bill currently being blocked, the For the People Act, is intended to expand voting rights, change campaign finance laws, limit partisan gerrymandering, and create new ethics rules for federal office holders. The House passed the bill in 2019, but it was later blocked under then Senate Majority Leader, Mitch McConnell. House Democrats reintroduced the bill in 2021 and the bill passed in the House of Representatives on a near party-line vote before advancing to the Senate. Senate Republicans have since blocked the bill from proceeding to a vote with a silent filibuster. This has brought the filibuster into everyday conversation, raising questions about what it is, how it is used, and what it means for a President, like Joe Biden, who received a popular vote majority—by more than 7 million people in the 2020 Presidential election—but whose agenda is stalled by a minority veto.

This article will address a few important points, including an overview of the history of the filibuster, the most notable historical examples of its use, its prominence in blocking civil rights legislation, its modern use today, and what we should do now. It is only when examined through a historical perspective that we can decide as a nation if the filibuster should be a permanent feature of our government.

II. History of the Filibuster 

While not a part of the Constitution of the United States, the filibuster dates back to ancient Rome and some form of filibustering has existed since the inception of our Constitutional democracy. Senate historian Betty Koed, who has written and spoken extensively on the subject, points to a passage from the very first U.S. Senate session, in 1789, when Pennsylvania Senator William Maclay wrote in his diary, the “design of the Virginians . . . was to talk away the time, so that we could not get the bill passed.”

Initially, both the Senate and the House had unlimited debate. During the 51st Congress, the House ended what was called the “disappearing quorum,” where members could kill a bill by absenting themselves and denying the House a quorum. The elimination of the disappearing quorum effectively killed the filibuster in the House more than 130 years ago. While many predicted dire consequences for the House, the 51st Congress, which had been expected to accomplish little or nothing, became one of the most productive in history with Republicans in full control. Action taken by the 51st Congress included the Sherman Antitrust Act designed to rein in big business; the establishment of land grants for colleges serving Black students in the South; the expansion of pensions for Civil War veterans; the creation of the foundation for the National Park Service; and the granting of statehood to the Dakotas, Montana, Washington, and Idaho. The House now has limited how much individual members can speak, and effectively eliminated the filibuster. Instead of taking the example from the House, the Senate has gone in the opposite direction, making the filibuster more routine and easier to use.

According to the Public Broadcasting Service (PBS), the record for the longest individual filibuster in U.S. history remains with Senator Strom Thurmond who spoke for more than 24 hours in August of 1957 opposing Civil Rights legislation. It was one of many filibusters by white, Southern Democrats, including one by Senator Robert Byrd, which Byrd later said he regretted.

In 1992, New York Senator Alphonse D’Amato staged a 15-hour filibuster over a tax issue, that famously included reading from the phone book and singing. Senator Huey Long of Louisiana spoke for 15 hours in 1935, during which he read from the Bible and read food recipes aloud, regarding a controversy over government jobs. In more recent years, Senator Rand Paul of Kentucky spoke for 13 hours in 2013 in opposition to an Obama nominee for the Director of the Central Intelligence Agency. Senator Ted Cruz gave a 21-hour speech against the Affordable Care Act in 2013, including the now infamous readings from Dr. Seuss’s Green Eggs and Ham.          

Some of the most infamous uses of the filibuster were against the Civil Rights Act of 1964.  Opponents of the Act filibustered for a record-breaking 60 working days while CBS and other major news agencies reported from the steps of the Capitol. Years earlier, the filibuster was used to defeat the Dyer Anti-Lynching Bill. Lynch mobs had murdered more than 4,000 Black people between the end of Reconstruction and the middle of the 20th Century. Activists and organizations such as the NAACP worked to expose the savagery of lynching and to debunk the myth that lynch mobs existed to avenge the rape of white women as the anti-Black violence rose to grim levels. Notable examples of this violence included a massacre in Elaine, Arkansas where 500 heavily armed soldiers, law enforcement and white vigilantes killed hundreds of Black sharecroppers, and the Tulsa Race Massacre in the area famously known as Black Wall Street.  

Despite what was substantial backing for the Dyer Anti-Lynching Bill, the bill ultimately died a procedural death at the hands of a filibuster led by Southern Democrats. This filibuster turned highly theatrical as Senators schemed strategies to delay debate, stretching parliamentary procedures into lengthy ordeals, reading from stacks of books, pamphlets, and newspapers, sometimes for hours at a time.  

Ultimately, on December 2, 1922, the Republicans surrendered. A leading Republican, Senator William Borah of Idaho, had refused to invoke cloture, citing objections to the bill’s constitutionality. Some later suggested that the Republicans, such as Borah, who refused to invoke cloture, were secretly angling for the Bill’s defeat. Years later, a cynical Borah would brag to W.E.B. Du Bois that the handling of Dyer Bill had been “one of the finest illustrations of how we play politics with the negro that I know of.”  

Civil Rights leaders later said that the bill “was not killed by majority vote but was lynched by a filibuster.” Eight days following the Bill’s collapse, vigilantes lynched another four Black Americans. Later in the 1930s, southern white Senators filibustered the Costigan-Wagner Anti-Lynching Act, even though the bill’s sponsors were members of the Southerners’ own party.  

These early filibusters proved to be precursors of what would come later. While Strom Thurmond’s 24-hour one-man filibuster of the Civil Rights Act of 1957 still holds the record for this obstructionary tactic, as recently as last year, Senator Rand Paul of Kentucky conducted a one-man blockage against a 21st Century attempt to enact a new version of the federal anti-lynching law that the House first passed more than a hundred years ago.

The dual tracking rule change that occurred in the 1970s has changed the filibuster substantially. While the rule was intended to allow the Senate to run more smoothly, it made the filibuster an even more effective obstacle to legislation. Though it is not used in all cases, any Senator can launch a filibuster simply by announcing that they object when other Senators try to move forward on legislation. While the objector can specify their reasons for the objection, doing so is not necessary.

To end the filibuster, the full Senate must trigger a different superweapon – cloture – which closes the debate. Under current rules, this requires a 60 percent, or three-fifths, vote of the Senate. If cloture passes, it mandates a maximum of 30 hours of debate and no more. Only at the conclusion of the debate will there a be a vote on the actual measure that the filibuster was intended to block. If cloture does not pass, the bill remains in filibuster as the Senate moves on to other business. The practical effect is that all legislation requiring Senate action must now face an initial 60-vote hurdle. The only exceptions are so-called budget reconciliation bills, which allow for a simple majority vote in the Senate for bills that impact the Federal budget. However, only up to three budget reconciliation bills may be considered each year.

III. Conclusion: What to do About the Filibuster

In 1917, with filibuster frustrations mounting and at the urging of President Woodrow Wilson, the Senate adopted Senate Rule 22 which allowed the Senate to invoke cloture and limit debate with a two-thirds majority vote. However, filibusters remained an effective means to block legislation, since a two-thirds majority vote was difficult to obtain. After cloture was first used to end the filibuster against the Treaty of Versailles, the Senate managed to invoke cloture only five times over the next four decades.

In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the 100 senators. Frustrated with the Republicans’ continued efforts of to stall the nominations of President Barack Obama, Democrats eliminated the filibuster for non-SCOTUS judicial nominees in 2013. In turn, the Republicans eliminated the filibuster requirement for United States Supreme Court nominations in 2017 when they had the majority, leading to the current 6-3 conservative majority.       

The “nuclear option” is the term used for “blowing up” or eliminating the filibuster. While this could be done with a simple majority vote for a rule change, many, reportedly including President Biden, are reluctant to change the rules of the Senate. Some consider eliminating the filibuster a precarious move, especially in circumstances with a closely divided Senate, as the majority party could lose their main tool in the Senate not very far down the road if they find themselves in the minority again. Like any “nuclear” option, eliminating the filibuster carries consequences for all concerned.         

According to legend, while Robert Byrd was on his deathbed, the Senate was considering the Affordable Care Act. Senator McConnell insisted that all 60 Democrats had to be present to overcome the filibuster and move the Act forward. McConnell declined to allow Robert Byrd “a pass” by finding a Republican to vote for cloture so that Byrd’s actual appearance could be avoided. Instead, Byrd was forced to physically come into the Senate in a wheelchair, and in a very feeble state, to cast his vote for cloture. Though every Senator, presumably including Mitch McConnell, applauded Byrd and gave him a standing ovation, the only thing that Byrd would say was “shame, shame.”One of the dire warnings of the Founding Fathers was factionalism, which had led to bloody civil wars in England during the 17th Century. Political parties were seen as a necessary evil, but Alexander Hamilton called them “the most fatal disease” of popular governments. In Federalist PaperNo. 10, James Madison wrote that one of the main functions of a well-constructed union should be its ability “to break and control the violence of faction.” With the modern-day filibuster, the minority “faction” has a death grip on progress. To escape the tyranny of the minority in the Senate, the nuclear option may be the only way forward.

[1] See e.g., Conservative Partnership Institute, Shutdown State of Play: What’s Really Going On, CPI Blog (Jan. 19, 2018), https://www.cpi.org/post/shutdown-state-of-play-whats-really-going-on (“Though the filibuster is considered an obstructionary tactic, it is a critical feature of minority rights in the Senate, and one that’s historically been used by both parties to protect their interests.”).
[2] Merriam-Webster, The Piratical History of ‘Filibuster’, https://perma.cc/4S8X-SK62 (last visited Aug. 4, 2021).
[3] See Jada Yuan, No standing, no marathon speeches, no catheter bags: How filibustering got way too easy,  Wash. Post (July 5, 2021), https://perma.cc/P2CK-ANU7 (“Where silent filibusters now land with a thud, talking filibusters once had their own entertaining, even transcendent, way of making history.”).
[4] Luke Savage, If Democracy Is Dying, Why Are Democrats So Complacent?, The Atlantic (May 24, 2021), https://perma.cc/KCW8-JBKE (“Due to the [Senate’s] filibuster rules, most legislation requires 60 votes to pass—an impediment that effectively empowers lawmakers representing only a tiny sliver of the electorate to block policies they dislike at will, including those designed to make American democracy fairer and more inclusive.”); see also Tim Lau, The Filibuster Explained, Brennan Ctr. for J. (Apr. 26, 2021), https://www.brennancenter.org/our-work/research-reports/filibuster-explained (“Anytime a group of 41 or more senators simply threatens a filibuster, the Senate majority leader can refuse to call a vote.”).
[5] Yuan, supra note 3.
[6] “Democrocy Dies in Darkness” is the official slogan of the Washington Post.
[7] Donald Judd and Caroline Kelly, Biden dismisses McConnell’s pledge to focus ‘on stopping this new administration’, CNN (May 5, 2021), https://www.cnn.com/2021/05/05/politics/biden-mcconnell-100-stopping-new-administration/index.html.
[8] See H.R. 1/S. 1.
[9] Ballotpedia, HR1, “For the People Act of 2021”, https://ballotpedia.org/HR1,_%22For_the_People_Act_of_2021%22 (last visited Aug. 4, 2021) (“The United States House of Representatives approved HR1 on March 3, 2021, by a vote of 220-210, with all but one present Democrat voting in favor and all present Republicans voting against it. The Senate companion bill, S1, was introduced in that chamber on March 17. On June 22, the Senate voted 50-50 to allow debate on the bill, shy of the 60 votes needed to proceed.”).
[10] See Barbara Sprunt, Senate Republicans Block Democrats’ Sweeping Voting Rights Legislation, NPR (June 22, 2021) https://www.npr.org/2021/06/22/1008737806/democrats-sweeping-voting-rights-legislation-is-headed-for-failure-in-the-senate.
[11] Federal Election Commission, Official 2020 Presidential General Election Results (Feb. 1, 2021) (showing 81,268,924 votes for Biden and 74,216,154 votes for Trump).
[12] Lisa Desjardins, How does the filibuster work?, PBS News Hour (Jan. 27, 2021) https://www.pbs.org/newshour/politics/how-does-the-filibuster-work.
[13] Id.
[14] David Litt, We Already Got Rid of the Filibuster Once Before,  The Atlantic (Mar. 8, 2021) https://www.theatlantic.com/ideas/archive/2021/03/we-already-got-rid-filibuster-once-before/618201/.
[15] Id.
[16] Id.
[17] Id. (stating that Republican lawmakers got rid of the filibuster in the House of Representatives 130 years ago).
[18] Desjardins, supra note 12.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Magdalene Zier and John Fabian Witt, For 100 years, the filibuster has been used to deny Black rights, Wash. Post (Mar. 18, 2021), https://www.washingtonpost.com/outlook/2021/03/18/100-years-filibuster-has-been-used-deny-black-rights/.
[25] Id.
[26] Id.
[27] Id.; see also Tulsa Historical Society and Museum, 1921 Tulsa Race Massacre, https://www.tulsahistory.org/exhibit/1921-tulsa-race-massacre/ (last visited August 4, 2021).
[28] Zier and Witt, supra note 24.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Desjardins, supra note 12.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Cong. Research Serv., R44058, The Budget Reconciliation Process: Stages of Consideration 3 (2021), https://fas.org/sgp/crs/misc/R44058.pdf (discussing the number of reconciliation bills allowed under the Senate’s interpretation of the Congressional Budget Act); see also Richard Kogan and David Reich, Introduction to Budget “Reconciliation”, Ctr. on Budget and Pol. Priorities (Jan. 21, 2021), https://www.cbpp.org/research/federal-budget/introduction-to-budget-reconciliation (“Under Senate interpretations of the Congressional Budget Act, the Senate can consider the three basic subjects of reconciliation — spending, revenues, and the debt limit — in a single bill or multiple bills, but a budget resolution can generate no more than one bill addressing each of those subjects. In practice, however, a tax bill is likely to affect not only revenues but also outlays to some extent (for example, via refundable tax credits). Thus as a practical matter a single budget resolution can probably generate only two reconciliation bills: a tax-and-spending bill or a spending-only bill and, if desired, a separate debt limit bill.”).
[46] United States Senate, About Filibusters and Cloture | Historical Overview, https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm (last visited Aug. 4, 2021).
[47] Id.
[48] Id.
[49] Id.
[50] See Camille Caldera, Fact Check: Republicans, not Democrats, eliminated the Senate Filibuster on Supreme Court Nominees, USA Today (Oct. 1, 2020), https://www.usatoday.com/story/news/factcheck/2020/10/01/fact-check-gop-ended-senate-filibuster-supreme-court-nominees/3573369001/ (“Senate Majority Leader Harry Reid, D-Nev., was not responsible for lowering the vote threshold to confirm Supreme Court nominees to 51. Rather, he orchestrated that change for judicial nominees and presidential appointments, excluding the Supreme Court. When control of the Senate changed parties, it was Republican Majority Leader Mitch McConnell, R-Ky., who extended the rule change to apply to nominees to the Supreme Court in 2017.”).
[51] See e.g., Laura Barron-Lopez, Biden won’t embrace filibuster reforms even as the rest of his party does, Politico (Mar. 8, 2021), https://www.politico.com/news/2021/03/08/biden-filibuster-reform-474503 (“President Joe Biden isn’t budging from his desire to keep the filibuster in place; at least not yet. And activists demanding reforms are growing increasingly befuddled by the administration’s hesitance.”); but see Grace Segers, Biden signals he’s open to eliminating Senate filibuster over GOP “abuse”, CBS News (Mar. 26, 2021) https://www.cbsnews.com/news/filibuster-reform-senate-biden-republican-abuse/ (explaining that President Biden has expressed some support for eliminating the silent filibuster, and has indicated that he may be open to further reforms “if there’s complete lockdown and chaos as a consequence of the filibuster”).
[52] See Brent Baker, CBS Leads with Byrd’s ‘Shame, Shame’ in Story on GOP ‘Delaying Tactics’, Media Research Ctr. (Dec. 19, 2009), http://archive2.mrc.org/bias-alerts/cbs-leads-byrds-shame-shame-story-gop-delaying-tactics.
[53] Sarah Pruitt, The Founding Fathers Feared Political Factions Would Tear the Nation Apart, History (Mar. 7, 2019), https://www.history.com/news/founding-fathers-political-parties-opinion.
[54] Id.
[55] Id.