Dreaded filibuster
Debate rolls on over this outdated Senate rule. Reform is needed, and the time to act is now.
The left is furious that Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) say they refuse to change the Senate rules to enable the slim Democratic majority to pass initiatives ranging from police reform to voting rights protections to a $15 minimum wage with a simple majority.
This debate has spotlighted the Senate’s super-majority requirement under which 60 votes are necessary to pass most legislation.
The fate of President Joe Biden’s bold agenda depends on the outcome of this arcane procedural debate. In an era of gridlock and polarization, it seems unlikely that 10 Republican senators will support Biden’s key proposals. Democrats can either wage a procedural war or risk a presidency with little reform legislation.
Manchin recently expressed openness to incremental filibuster reform, but the lesson of Senate history is that filibuster reform only has worsened the obstruction of the popular will.
The Founders understood the problem of minority rule. Under the Articles of Confederation, Congress couldn’t act unless nine of the 13 states agreed to legislation, which left the federal government unable to address pressing national problems ranging from trade to the military to creating a court system.
According to Alexander Hamilton, “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.” This rationale in Federalist No. 22 explains why Hamilton and his fellow Founders set up both houses of Congress to work by simple majoritarian rules.
One key procedural way to enforce this vision was the “previous question rule.” The Constitution provided in Article 1, Section 5 that each chamber could construct its own rules, and both chambers included the previous question rule in 1789.
But in 1806, at the behest of Vice President Aaron Burr, the Senate eliminated
its previous question rule. Burr wanted to streamline the Senate’s rules to make it a truly important deliberative body. Majorities had not yet used the previous motion rule to squelch debate, so senators did not understand the consequences of its elimination.
In the ensuing decades, however, they learned that without it, a member could talk incessantly until the time to vote on a particular measure had expired. The result: the slow birth of the filibuster, first with a variety of delaying tactics and eventually the emergence of filibuster by extended floor debate.
One of the earliest filibusters occurred in 1841 when Sen. John C. Calhoun (D-S.C.) used a mixture of extended debate and countless amendments to try to kill legislation chartering the Bank of the U.S.
The majority had no way to cut off the debate, much to the chagrin of Sen. Henry Clay (Whig-Ky.) who had tried but failed to change the rules to limit debate in the Senate. In the end, Calhoun slowed the process for several weeks, but the legislation passed anyway.
Calhoun’s new tactic of obstruction didn’t come into common usage immediately. Not until 1846 did a senator use the filibuster to successfully kill a bill, in this case an appropriations bill funding the Mexican War.
With the coming of the Civil War in the late 1840s and the 1850s, lawmakers became much more likely to use floor speeches to obstruct. By 1863, they started calling such tactics the filibuster.
Yet for another half-century lawmakers remained willing to pass even significant legislation on party-line votes. For example, in 1913, the Senate passed the Federal Reserve Act, a major piece of President Woodrow Wilson’s agenda, by a vote of 54-34, with only six of the chamber’s Republicans in favor. Despite near uniform Republican opposition, the minority did not try to talk the bill to death.
Shortly thereafter, however, the filibuster became more commonplace, capable of defeating not only the targeted bill but also other bills that did not get votes because the filibustering senators were occupying the floor.
After a filibuster against a measure to arm merchant ships during World War I not only prevented its passage but also sunk essential appropriations bills, the majority rebelled. Senators enacted the cloture rule, enabling a vote of two-thirds of the Senate to break a filibuster.
This new tool failed to prevent Southern senators from turning the filibuster into an indispensable tool for obstruction and the Senate into a graveyard for civil rights legislation. In 1942, when the chamber was debating an anti-poll-tax bill, Southerners absented themselves to prevent a cloture resolution.
Majority Leader Alben Barkley (D-Ky.) directed the sergeant-at-arms to arrest senators in Washington, D.C., who had not answered a quorum call. Lawmakers dragged from their apartments were furious that Barkley had called their bluff.
In the 1950s, a new majority leader, Lyndon B. Johnson (D-Texas) made it more difficult for filibustering colleagues by requiring the Senate to remain constantly in session during such exercises. He relied on attrition plus unwelcome conditions—senators napping on cots, senators in bathrobes—to break legislative logjams.
Even so, Sen. Strom Thurmond of South Carolina, then still a Democrat, set the single-person record for the longest filibuster at 24 hours and 18 minutes when he spoke against the Civil Rights Act of 1957. Thurmond prepared by taking a sauna in advance to dehydrate his body so that all water consumed during the filibuster would be absorbed. Some have also hypothesized that he wore a catheter to solve the issue of bathroom breaks.
While the legislation passed, doing so required removing crucial enforcement measures to avoid death by filibuster. Sen. Paul Douglas (D-Ill.) assessed the near-meaningless final product with a line from Abraham Lincoln: “It was like soup made from the shadow of a crow which had starved to death.”
The arduous nature of filibustering discouraged senators from using the tool, reinforcing the filibuster as an institutional tool of racism and segregation. The most infamous filibuster, against the Civil Rights Act of 1964, lasted 60 working days, including seven Saturdays, before a bipartisan coalition was able to cut it off.
This extended filibuster included cots for napping senators and long-winded speeches, including a 14-hour one from Sen. Robert C. Byrd (D-W. Va.) Nonetheless, for the first time the Senate invoked cloture on racial justice legislation.
Subsequently, the filibuster remained an infrequent tactic until the 1990s, when national politics grew more polarized and senators became more interested in obstructing than compromising and legislating. They took advantage of the implementation of a tracking system in 1970, which enabled senators to impose a filibuster without taking to the floor to talk incessantly.
This system allowed the Senate leadership to put controversial legislation on a separate track, preventing collateral damage to non-filibustered bills. By lowering the costs of obstruction, the rule change gave birth to the silent filibuster, laying bare the obstructionist tactic for what it is.
Statistics illustrate the explosion in filibusters: There were 357 cloture motions between 1975 and 1992, compared to 1,803 since 1993.
In recent decades, senators only use talking filibusters to grab the spotlight, as Sen. Ted Cruz (R-Texas) did with a 21-hour filibuster in 2013 that included a reading of “Green Eggs and Ham.” Cruz’s verbal marathon was meaningless since a deal had already been cut to preserve Obamacare, which he was demanding the Senate defund.
In the past decade, senators eliminated the filibuster for judicial confirmations (by setting the number needed for cloture at 51 senators), as first Democrats (for lower court nominations) and then Republicans (for Supreme Court nominees) sought to overcome a new area of obstruction by the minority.
Before the 1980s, there had only been two filibusters against judicial nominees, and the 26 such filibusters in the first decade of the 21st century were more than double the total number that had taken place before that decade. The numbers continued to soar until the elimination of the judicial filibuster.
It remains in place for legislation, which is why Senate Democrats used special budget rules to pass the covid-19 relief bill without a filibuster threat. But those rules have limitations on what sorts of measures can be included and can only be used on one tax-and-spending bill per fiscal year and, if separated out, one debt limit bill per fiscal year.
From this context, then, it becomes clear that without changing the rules, key elements of Biden’s agenda are unlikely to make it into law, regardless of how popular they are. This procedural situation turns an already anti-majoritarian institution (because all states get two senators regardless of population) into a graveyard for democracy.
The filibuster was an unintended consequence that warped the Founders’ vision for the Senate. It has evolved into a commonplace tool used for obstructing the will of democratic majorities, ultimately heightening polarization, distrust and frustration with government. Eliminating it would not be a partisan maneuver.
At some future point a Republican president and a Congress narrowly controlled by the GOP will also benefit from the elimination of the filibuster. That’s how democracy should work.