The Senate filibuster, in which a single senator can block a vote by holding the floor unless 60 votes are secured to end debate, has long been a major barrier to legislative policymaking. For decades, both parties have recognized the need to obtain 60 votes for most bills has made it extraordinarily difficult to address major challenges of our times such as climate change, voting rights, and immigration reform. Even government shutdowns have become a routinized part of the political process as the minority party can hold up spending bills using the filibuster. This forces Congress to rely on temporary continuing resolutions that leave federal agencies in a constant state of fiscal uncertainty, or results in draconian shutdowns that fall hardest on the most disadvantaged Americans.
During the most recent government shutdown, even U.S. President Donald Trump called for burning the process to the ground. “If we do terminate the Filibuster, we will get EVERYTHING approved, like no Congress in History,” he posted on Social Truth. Senate Majority Leader John Thune disagreed and showed little appetite for moving forward with the proposal. Interestingly, this argument had, until recently, been coming primarily from the left. As Oregon Sen. Jeff Merkley argued, “We want the Senate to be where every senator counts, but not a place that encourages partisanship and paralysis, which is what we have now in this current silent, secret filibuster where nobody even has to speak on the floor.”
The Senate filibuster, in which a single senator can block a vote by holding the floor unless 60 votes are secured to end debate, has long been a major barrier to legislative policymaking. For decades, both parties have recognized the need to obtain 60 votes for most bills has made it extraordinarily difficult to address major challenges of our times such as climate change, voting rights, and immigration reform. Even government shutdowns have become a routinized part of the political process as the minority party can hold up spending bills using the filibuster. This forces Congress to rely on temporary continuing resolutions that leave federal agencies in a constant state of fiscal uncertainty, or results in draconian shutdowns that fall hardest on the most disadvantaged Americans.
During the most recent government shutdown, even U.S. President Donald Trump called for burning the process to the ground. “If we do terminate the Filibuster, we will get EVERYTHING approved, like no Congress in History,” he posted on Social Truth. Senate Majority Leader John Thune disagreed and showed little appetite for moving forward with the proposal. Interestingly, this argument had, until recently, been coming primarily from the left. As Oregon Sen. Jeff Merkley argued, “We want the Senate to be where every senator counts, but not a place that encourages partisanship and paralysis, which is what we have now in this current silent, secret filibuster where nobody even has to speak on the floor.”
What is the historical basis for the filibuster? Given that there is some bipartisan support, could the Senate change this practice? Should it?
Filibustering emerged in the early 19th century largely by accident, as the political scientists Sarah Binder and Steven Smith explained in Politics or Principle? The term, originally used to describe pirates, came to refer to senators who held the floor as long as possible to prevent votes from taking place. In February 1853, according to the Senate historian’s office, North Carolina Sen. George Badger expressed frustration with “filibustering speeches.”
There is nothing that prevents the Senate from reforming or eliminating the filibuster. The procedure, allowing a single senator to hold up legislation unless opponents can obtain 60 votes, is not part of the Constitution.
It was not until 1917, when filibusters were becoming more frequent, that the upper chamber even imposed formal rules for bringing them to an end. A group of senators was filibustering President Woodrow Wilson’s proposal to arm merchant ships that were at risk from German U-boats. The president became extremely frustrated as Congress was unable to move forward. The “Senate of the United States is the only legislative body in the world,” he said, “which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” In response, the Senate adopted the “cloture” rule, which allowed for a two-thirds majority to bring debate to a close.
Between the 1920s and 1970s, filibusters were still generally reserved for high-profile debates. When filibusters occurred, the Senate came to a grinding halt. For many Americans, the most iconic image of the practice came from Frank Capra’s Mr. Smith Goes to Washington. Sen. Huey Long once spoke for more than 15 hours. In 1937, Southern Democrats filibustered to prevent passage of anti-lynching legislation that had passed the House of Representatives.
Indeed, during the 1940s and 1950s, the filibuster became associated almost entirely with the fight against civil rights. Although liberals sometimes used the procedure, it was the Southern Caucus, led by Georgia’s Richard Russell, that relied on it most aggressively and with dire consequences. The Leadership Conference on Civil Rights, the umbrella organization for the movement, considered filibuster reform to be as much of a priority as combating employment discrimination. “Until this obstacle is removed,” it said, “there can be no hope for congressional action against the forces of bigotry.”
Minnesota Sen. Hubert Humphrey, elected in 1948, denounced the filibuster as “undemocratic” and “evil.” In 1957, South Carolina Sen. Strom Thurmond held the floor for 24 hours and 18 minutes in an unsuccessful effort to block passage of the Civil Rights Act of 1957. In 1964, liberal Democrats on Capitol Hill, headed by Humphrey, mobilized to break another Southern filibuster aimed at protecting legal segregation.
Still, until the 1970s most legislation passed by majority vote. It was during that decade, as partisanship intensified, that the filibuster became a normalized tool of political combat. The number of cloture votes increased from six in 1969-70 to 20 in 1971-72. Whereas there were 18 filibusters in 1974, the year that President Richard Nixon resigned from office, there had never been more than five in one year before 1966. There were 10 filibusters each year from 1971 to 1973.
Most importantly, Senate Majority Whip Robert Byrd instituted a two-track system, which allowed the Senate to proceed to other business while a filibuster was underway. The reform was intended to make the Senate more efficient but ultimately increased the incentive to filibuster by lowering the costs to the chamber.
In 1975, a bipartisan coalition of liberals, supported by Republican Vice President Nelson Rockefeller, reformed the practice by lowering the threshold for cloture from two-thirds (66) to three-fifths (60). The reform fell short of the simple majority vote that Democrats such as Humphrey championed, but it was nonetheless significant. The Senate also eliminated the “present and voting” standard, which had required the minority to remain physically in the chamber around the clock in order to sustain the talk-a-thon.
However, the filibustering only intensified. The two-track system freed senators from having to hold the floor while filibustering and both parties started to filibuster on all legislation, big and small. Senators even filibustered to settle personal vendettas against colleagues. As partisan polarization deepened in the 1990s, the sixty-vote supermajority became a norm on most legislation.
The main exception was the budget reconciliation process, created by the Budget and Impoundment Control Act of 1974, which prohibited the use of a filibuster for provisions included in a reconciliation bill.
The filibuster turned into a partisan weapon of mass destruction. The 60-vote requirement for legislation became the new normal. With neither party able to secure a large and long-term majority since the 1990s, the majority party has not found itself with a filibuster-proof Senate. “The filibuster is a tool to preserve the status quo and make it harder to change,” noted Adam Jentleson, the former deputy chief of staff for former Senate Majority Leader Harry Reid.
Many issues are never tackled at all, as the majority rationally perceives them to have no chance of passing. Presidential candidates make big promises that will never see the light of day. The filibuster generally hurts Democrats, a party that has built its agenda around expanding government, more than Republicans, who are content for government to be frozen into place or to shrink. This is why filibuster reform has been taken up more fervently on the left than on the right until Trump’s recent social media post.
The gridlock in Congress has also increased the incentives and tolerance for presidents to deploy executive power with greater abandon. Leaders from both parties have relied on executive action to advance policy across a wide range of issues, from immigration to education, to voting rights to spending cuts. In recent years, concerns have grown about how far presidents are willing to go and about the fragility of policies that can be rather easily reversed by their successors. At the same time, parties have increasingly tried to pack policies into reconciliation bills, leading to distorted policy designs to satisfy the procedural requirements of this filibuster-free process.
Reform remains possible—and filibuster reform has been common. The imposition of cloture rules in 1917 and the lowering of the threshold for ending debate in 1975 were major changes. The budget reform of 1974 exempted certain spending legislation from the filibuster altogether. In 2013, Reid invoked the “nuclear option,” ending the filibuster for executive branch and lower federal court appointments (other than the Supreme Court). In 2017, Republican Senate Majority Leader Mitch McConnell returned the favor, once the GOP was in control and Trump was in the White House, by eliminating the filibuster for Supreme Court appointments.
In other words, even if the filibuster survives, reforms that make it easier for majorities to act have been accomplished and can be done again. One proposed change, endorsed by Merkley, would require senators to once again hold the floor and speak when they filibuster. Jettisoning the “silent filibuster” would impose greater costs on senators seeking to block action.
A second reform would require 10 senators to start a filibuster. A third, building on recent procedures regarding federal nominations, would expand the number of exemptions for issues such as democratic reforms. Between 1969 and 2014, according to the Brennan Center, the Senate adopted 161 carve-outs.
A fourth proposal would flip the burden of action away from the majority by requiring the Senate minority to vote to continue filibustering. Finally, the Brookings Institution has proposed reducing the number of senators needed to invoke cloture. An incremental approach that has been floated would reduce the number for cloture from 60 to 57 after several days, then to 54, and then to a simple majority.
Reforming the filibuster is essential. Filibusters have not functioned as tools of deliberation and negotiation; they have been mechanisms of obstruction and gridlock. In an institution that already favors less populated states by granting each two senators, the filibuster provides yet another avenue for minority coalitions to block legislation.
While both parties recognize the risk of making it easier for the other to pass legislation, a Senate that produces more bills and allows Congress to function more effectively would ultimately benefit the entire nation in the long run and be an important step forward to shoring up the strength of the democracy.
