- Charlize Cruger
The Origins of the Filibuster
The filibuster is often criticized throughout American political history and especially when popular legislation is held up in the Senate. The filibuster might seem like a unique pain to modern times, but it has been around since the first Senate meeting (“About Filibusters and Cloture”). Since then, it has endured few changes over time, meaning that it still holds the same power to halt the legislative process in many cases.
The term ‘filibuster’ refers to blocking a bill in the Senate by talking long enough to prevent a vote from ever occurring. In other words, it means to talk a bill to death. This phenomenon is exclusive to the Senate and “is generally recognized as an accident of Senate rules” (Hickey) that made it possible for senators to hold the floor indefinitely. The first recorded filibuster occurred during the first Senate meeting in 1789 (“About Filibusters and Cloture”). For years since this meeting, there was no measure that allowed for the majority to end debate and force a vote. The filibuster, however, wasn’t as disruptive to the Senate as it seems to be today. Filibuster frequency increased around the 20th century, which caused senators to seriously consider a rule to end debate (“About Filibusters and Cloture”). In 1917, senators added a cloture rule which allowed the debate over a bill to end if two-thirds of the Senate agreed. Cloture doesn’t mean that the bill is voted on, it just means that debate can end. In 1975, the threshold dropped such that only 60 - as opposed to 67 - of the 100 senators needed to vote in favor of ending debate.
In the past, the filibuster was a special tool used to hold particularly controversial bills in Senate debate and, as a result, cloture was barely invoked. Back then, the filibuster existed as a talking filibuster, meaning that a senator or group of senators would need to talk for extended periods to successfully kill a bill. In fact, the longest talking filibuster conducted by an individual occurred in 1957 when Senator Strom Thurmond (D-SC) spoke for 24 hours and 18 minutes when trying to kill the Civil Rights Act of 1957 (“About Filibusters and Cloture”). When decreasing the cloture vote threshold in 1975, however, the Senate also made a two-track system that prevents filibusters from completely halting business by dedicating a fixed time during which filibusters can occur (Bomboy). This inadvertently created what is known as a silent filibuster, as a group of at least 41 senators could filibuster a bill without having to hold the floor continuously and disrupt Senate business (Lau). Hardly any bill, then, can be passed without invoking cloture as a result of this easier way to filibuster (Hickey). To an outsider looking in, this phenomenon may seem unnecessary, unproductive, and in need of change.
In fact, there have been changes made to the filibuster. There have been around 161 exceptions carved out between 1969 and 2014 in attempts to limit the paralyzing effects of the filibuster (Lau). Bills pertaining to arms sales or military base closings are among the legislation that cannot be filibustered. Furthermore, in 2013, Senate Majority Leader Harry Reid (D-NV) exempted non-Supreme Court judicial nominations from the filibuster. In 2017, Senator Mitch McConnell (R-KY) extended this exemption to Supreme Court nominees as well (“Filibuster and Reconciliation”). Additionally, spending bills passed through a process called reconciliation also avoid being filibustered. Despite these limitations, however, an array of policy issues are still left subject to the filibuster.
One such issue is voting rights, which is seen in the failure of the current Senate to pass the Voting Rights Act, among other popular pieces of legislation. Due to the Senate’s current 50/50 split between Democrats (including the independents who caucus with them) and republicans plus the increasing distrust between opposing party members, getting the 60 votes needed to end debate can often seem impossible. Therefore, despite the Democrats having the numbers to pass legislation (Vice President Kamala Harris providing the 51st vote), they do not have enough support to move legislation out of the debate. This predicament has inspired democratic senators to try further increasing limitations to the filibuster by adding voting rights to the list of exempted issues, however, two centrist democrats are staunchly against any changes to the longstanding tool.
Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) are adamant in their support for the filibuster, which leaves Democrats in a difficult situation. Amending the cloture rule is the most straightforward way of altering the filibuster, but to change rules in the Senate requires the support of ⅔ of senators. This means Democrats would need all of their senators plus 17 Republicans to change or eliminate the controversial tool. (Reynolds) Considering how problematic the filibuster seems to be, one might wonder why anyone would want to protect it. Senator Joe Manchin has spoken many times on this topic and continues to reiterate the same idea: “The filibuster plays an important role in protecting our democracy from the transitory passions of the majority and respecting the input of the minority in the Senate.” (“Manchin”) Thus, the filibuster is considered as an important protection against a tyranny of the majority in which the ruling party can bulldoze over the minority party’s interests. The filibuster gives the minority party some power in the legislative process by forcing the majority to cross party lines to overcome the cloture threshold. Without the filibuster, therefore, there would be little to no need for bipartisanship in the Senate so long as one party gains a simple majority.
Overall, the filibuster has a history as long as and closely tied to that of the Senate. It is a unique tool that grants powers to the minority party to prevent a bill from being voted on. The frustration that comes with important legislation being trapped in the Senate has inspired many to call for its abolishment or, at least, its reform. This seems very unlikely, however, since Democrats are currently 19 votes short of the 66 required to change Senate rules