Filibuster
A filibuster is a parliamentary means for blocking a legislative body’s vote on an issue. As Encyclopaedia Britannica explains, a filibuster is “used in the United States Senate by a minority of the senators—sometimes even a single senator—to delay or prevent parliamentary action by talking so long that the majority either grants concessions or withdraws the bill.” The strategy is only used in the Senate because “unlike the House of Representatives, in which rules limit speaking time, the Senate allows unlimited debate on a bill. Speeches can be completely irrelevant to the issue.” [1]Two tactics can be used to defeat the filibuster: by invoking cloture (thereby limiting or ending debate and mandating a vote on the issue at hand) or by maintaining around-the-clock sessions to tire those using the filibuster. Perhaps the most famous depiction of a marathon filibuster, and the various tactics used to fight it, is the climactic scene in the classic 1939 movie Mr. Smith Goes to Washington, when the star of the film, an idealistic freshman senator played by Jimmy Stewart, finally collapses on the Senate floor from exhaustion.[1][2]
The word “filibuster” itself emerged from piracy. Derived from Dutch and Spanish, the term first appeared in English in 1591 as “flee-booters,” referring to people who raided the Caribbean Spanish colonies. The word gained a syllable along the way, and by the 1850s “filibusters” were Americans who traveled to the Spanish West Indies and Central America to encourage revolution. When applied to Senate speechifying, as NPR host Melissa Block has explained, “Filibustering senators were, by extension, pirates raiding the Congress for their own political gain.” [3]
Ironically, the first instance of “talking a bill to death” happened during the very first session of Congress, on Sept. 22, 1789. As Anti-Administration Party Senator William Maclay of Pennsylvania wrote in his journal, the “design of the Virginians and the Carolina gentleman was to talk away the time, so that we could not get the bill passed.” Despite the proto-filibustering, the bill was passed 31-17.[4][5]
In 1789, both the House and Senate had a rule allowing for a simple majority to end debate: the “previous question motion.” The House rulebook still has that motion. The Senate eliminated it in 1805 when Vice President Aaron Burr (who had just been indicted for the murder of Alexander Hamilton) told the Senate to clean up their rulebook, specifically to get rid of this tactic. The Senate did so in 1806, eliminating the Senate’s ability to end debate with a simple majority, thereby enabling the filibuster. [6]
According to the Senate, the term “filibuster” first came into congressional use when Mississippi Democrat Senator Albert Brown noted his “friend standing on the other side of the House filibustering” on Jan. 3, 1853, and when North Carolina Whig Senator George Badger bemoaned “filibustering speeches” in February of the same year. Other sources state “filibuster” didn’t take on its Senate meaning until 1889 or 1890.[3][4]
The debate over eliminating the filibuster is almost as old as its appearance in the Senate. As early as 1841, Kentucky Whig Senator Henry Clay, frustrated with filibustering Democrats, threatened to limit debate. Alabama Democrat Senator William King countered that Clay might as well “make his arrangements at his boarding house for the [entire] winter” in preparation for even longer debates to maintain the filibuster. [4]
But as the Senate grew in members and the amount of work it had to do, so did frustrations with the filibuster, as long speeches could derail work for days. President Woodrow Wilson made his displeasure known when, at the end of the 64th Congress on March 4, 1917, the Senate’s work had not been completed: the “Senate of the United States is the only legislative body in the world 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.” [4][7][8][9]
At Wilson’s urging, in a special congressional session, Senate Rule 22 was adopted on March 8, 1917. The rule meant that senators could file a motion to invoke cloture, which would prompt a vote on whether to end the debate two business days after the motion was filed, allowing up to 30 additional hours of debate. Two-thirds of the Senate was required to end a filibuster with cloture until 1974 when the rule was changed to three-fifths (meaning 60 US senators). If the motion is approved during the cloture vote, then cloture has been invoked and the Senate will vote on the item in question without further delay and debate.[4][7][8][9]
The first invocation of cloture occurred on Nov. 15, 1919, and ended debate on the Treaty of Versailles. Between 1917 and Aug. 8, 2022, U.S. Senators have filed 2,591 cloture motions, voted on cloture 2,062 times, and successfully invoked cloture in 1,361 cases. At first used sparingly, cloture recently became a more popular tool during the 113th Congress (2013-2014) when its use jumped to 187 from 41 clotures in the 112th Congress (2011-2012). [10][11]
The longest individual filibuster on record occurred in 1957, when U.S. Senator Strom Thurmond of South Carolina talked for more than 24 hours as part of an unsuccessful attempt by Southern senators to obstruct civil rights legislation. [1]
Key to the current debate over filibusters is the political parity that exists in the U.S. Congress. With the Senate almost evenly split between Democrats and Republicans, at a time when the parties share little ideological overlap and seldom agree on anything, the filibuster has become a prime tool for hindering the presidential and congressional agendas of the majority party, whose control over the Senate is slight and tenuous and far from a large mandate, making legislation almost impossible to pass.[12]
Additionally, senators no longer have to actually talk for hours to filibuster. Just the threat of a filibuster (also called a “virtual filibuster”) is enough to effectively block legislation. William Galston, Cofounder of the Congressional reform group No Labels, describes the tactic as a “sort of a ‘Look ma, no hands’ way of avoiding accountability” and the sweat equity that once required senators to talk for hours. [47][48]
An April 29, 2021, Monmouth University poll found 38% of Americans want to keep the filibuster with no changes, 38% believe the Senate should reform filibuster rules, and 19% would get rid of the filibuster. However, only 19% of Americans stated they were “very familiar” with how the filibuster functions, while 12% were “not too familiar” or “not at all familiar” with the strategy and 29% had never heard of the filibuster. [13]
Unfamiliarity with the filibuster makes it difficult for the public to imagine how to reform the Senate procedure. According to the Brennan Center for Justice, the filibuster has been modified more than 160 times since its introduction. Recently, the “nuclear option” has been used in 2013 and 2017 to eliminate the use of the filibuster for presidential executive and judicial appointments and U.S. Supreme Court nominees. The “nuclear option” allows senators to change Senate rules with a simple majority vote. Following this option, senators could mandate the elimination of the filibuster for specific key party platform legislation such as voting rights.[14][15]
Another possible reform would be to change the threshold for invoking cloture from 60 to a higher or lower number of senators in order to strengthen or weaken the filibuster. One version is an “inverted filibuster” in which only 41 votes (instead of 60) would be needed to invoke cloture and end a filibuster, thereby shifting the burden to the dissenting senators instead of the senators promoting the legislation in question. Also suggested is to require three-fifths of “present and voting” senators to invoke cloture and end a filibuster instead of the current requirement of three-fifths of “duly chosen and sworn” senators, many of whom may not be present or voting, thereby making it easier to kill a filibuster. [14][16]
| PROS | CONS |
|---|---|
| Pro 1: The filibuster promotes compromise and protects the voice and mandate of the minority party. Read More. | Con 1: The filibuster promotes obstructionism and partisanship, allowing the minority party to rule without a national mandate. Read More. |
| Pro 2: The filibuster protects the intended purpose of the Senate: purposeful debate. Read More. | Con 2: The filibuster prevents meaningful debate and slows the work of the Senate. Read More. |
| Pro 3: The filibuster is an important safeguard against political extremism and corporate influence. Read More. | Con 3: The filibuster is a Jim Crow relic used to block meaningful legislation. Read More. |
Pro Arguments
(Go to Con Arguments)Pro 1: The filibuster promotes compromise and protects the voice and mandate of the minority party.
The filibuster provides a way for minority opinions (and therefore the voices of the constituents of the minority parties) to be heard on the Senate floor, fulfilling the senators’ mandate to govern. [17]
“Far from being simply a weapon of obstruction, the filibuster actually forces compromise. The framers designed the Senate to be a consensus-driven body. If a majority party knows they need to garner 60 votes to end debate on a bill, the necessity of working across the aisle, negotiating, and finding areas of agreement becomes imperative, rather than optional. Without the filibuster as a tool of negotiation, the Senate becomes little more than a smaller version of the House of Representatives where legislation reflects the priorities of the majority, with little regard to concerns of the minority,” explained Rachel Bovard of the Heritage Foundation. [18]
Without the filibuster, the crucial tradition of debate is quashed, leaving the majority party to enact its will without checks or balances. As Thomas Jipping of the Heritage Foundation explained, “World history is full of examples of governments that unless they have limits and controls and checks get really out of control. And the extended debate, the filibuster, that’s part of that system of checks and balances. So it’s a very important part of limiting government at least in the Senate…. [A]fter the 2020 election, the Senate is 50/50. Even before that, it was very closely divided. That narrow majority should not be able to force its will on the very large minority anytime that it wants. So it’s part of that design for our government and I think it’s a very important one.”[17]
Protecting the filibuster is also a case of “what comes around, goes around.” While one party has a slim majority, they may want to eliminate the filibuster to enact their policies. However, as Senator John Thune (R-SD) pointedly remarked, “I encourage my colleagues to think about that time when they will be in the minority again – and to ask themselves whether they really want to eliminate their voices, and the voices of their constituents, in future policy battles.”[19]
Pro 2: The filibuster protects the intended purpose of the Senate: purposeful debate.
The intentionally slow movement of legislation through the Senate not only creates a mandated space for deliberation, but it also allows American citizens to read the bills and communicate their policy views to their Senators, who can then write and pass legislation that best represents the will of their constituents. [20]
Eliminating the filibuster would fast-track legislation, making the Senate operate like the House, which is neither what the chamber is intended to do nor a productive part of the democratic process. [20]
As Supreme Court Justice Joseph Story wrote in 1833, “[Division of legislative power into two houses] is of little or no intrinsic value, unless it is so organized, that each can operate, as a real check upon undue and rash legislation. If each [chamber] is substantially framed upon the same plan, the advantages of the division are shadowy and imaginative; the visions and speculations of the brain, and not the walking thoughts of statesmen, or patriots…. Each will act, as the other does; and each will be led by the same common influence of ambition, or intrigue, or passion, to the same disregard of the public interests, and the same indifference to, and prostration of private rights. It will only be a duplication of the evils of oppression and rashness, with a duplication of obstructions to effective redress. In this view, the organization of the senate becomes of inestimable value…. No system could, in this respect, be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation.”[21]
According to Senate history, George Washington remarked to Thomas Jefferson that the Senate was created to “cool” House legislation, as a saucer cools hot tea. To extend the metaphor, without the Senate and rules including the filibuster, the American people would be burned by hot, rash legislation. [23]
Pro 3: The filibuster is an important safeguard against political extremism and corporate influence.
The Senate has always purposefully been the slower chamber of Congress, the one that “was not going to simply ride popular waves when considering legislative action.” The filibuster “frankly is one of the last safeguards against extremist legislators from either side of the aisle pushing through laws that the vast majority of the country would oppose,” according to Pete Weichlein, CEO of The Former Members of Congress Association.[24]
Eliminating “the filibuster would only ramp up partisan acrimony and increase the level of fear and anxiety around American elections,” argued David French, Senior Editor of The Dispatch. The filibuster protects against both minoritarian rule, in which the minority party takes and keeps control contrary to the wishes of the majority of citizens, and majoritarian domination, in which the voices and liberties of the minority of citizens could be eliminated. In both cases, the more extreme end of each party would likely be in control, rather than those willing to work across the aisle. While working through compromise may be more difficult, that is the work of democracy. [25]
David Super, Law Professor at Georgetown University, explained another advantage of maintaining the current rule: “The filibuster also serves as a crucial counterweight against big-money politics. Holding a majority to block legislation backed by the corporate elite is difficult when millions of dollars in campaign contributions tempt legislators to vote with irresponsible banks, avaricious petrochemical companies or reckless lumber interests. Forty-one votes to block radical deregulation [by preventing a block of 60 senators from enacting cloture and ending a filibuster] is a much more achievable goal.” Thus, the filibuster protects citizen voices against powerful corporations and unscrupulous Senators who might bow to the influence of corporate lobbyists rather than represent their constituents faithfully.[26]
Con Arguments
(Go to Pro Arguments)Con 1: The filibuster promotes obstructionism and partisanship, allowing the minority party to rule without a national mandate.
The 117th Senate (2021–2023) is composed of 50 Republicans, 48 Democrats, and 2 Independents who caucus with the Democrats, making the Senate split evenly in terms of broad politics. The tiebreaker is Vice President Kamala Harris, a Democrat. [27][28][29]
However, the 50 liberal senators represent 41.5 million more Americans than the 50 conservative senators.[27][28][29]
Because ending a filibuster requires a 60-senator majority vote, just 41 conservative senators (the number of senators needed to protect a filibuster) in the 117th Senate who represent just over 20% of the American population can kill any and all legislation brought by the party voted in to control the Senate, House, and White House.[27][28][29]
One estimate predicts that by 2040, about 30% of the American population will live in 35 states represented by 70 senators, while about 70% of the population will live in 15 states represented by 30 senators. That 30% will be older, less racially diverse, and more rural than the majority of the country. Therefore, the possibility of a stark minority of senators filibustering and killing legislation supported by the majority of the country only stands to grow worse. [30]
That dynamic is exacerbated when the venom of partisanship is factored into the equation. “We’re finally seeing, I think, a level of frustration, over the misuse of the filibuster, not as an infrequently applied tool by a minority on an issue about which they feel very, very strongly, but as a cynical weapon of mass obstruction…. And it means if you don’t have more than 60 of your own party members, you’re just dramatically limited in what you can do in policy terms. And it’s basically because you have a minority party that’s not looking to solve problems, but to figure out how to block anything of significance in… [the majority party’s] agenda, and make sure problems fester so that they have more traction to gain political advantage,” according to Norm Ornstein, political scientist at the American Enterprise Institute. [31]
Con 2: The filibuster prevents meaningful debate and slows the work of the Senate.
In 1957, Senator Strom Thurmond (then D-SC, though he would switch to the Republican party in 1964) filibustered for 24 hours and 18 minutes on Aug. 28 and 29, the longest filibuster on record. Thurmond spent valuable Senate time reciting the Declaration of Independence, the Bill of Rights, and President George Washington’s farewell address, among other historical documents and state election laws. The effort was in vain: no senator changed their vote, and the act passed 60-15 a mere two hours after Thurmond stopped speaking. [32][33][34]
In Sep. 1981, Senator William Proxmire (D-WI) filibustered for 16 hours and 12 minutes (the fifth-longest filibuster), halting debate about raising the debt ceiling, an action he opposed. His filibuster kept the senate chambers open overnight, costing taxpayers “$47,500 for the extra Congressional Record, $6,500 in police overtime and $10,500 in building maintenance costs,” over $64,500 in 1981 dollars (about $205,065.02 in 2022 dollars). Those figures did not include “incalculable extra man hours from personnel on fixed salaries.” The Senate passed the debt ceiling increase the next day in a 64-34 vote. [32][35]
Moreover, a Jan. 2022 study found that not only do filibusters not increase meaningful debate as defenders claim, but they serve to dampen debate. The study showed that in 2007 when Senate Republicans increased use of the filibuster, there was a fairly immediate 14% decline in debate. Three legislative sessions later, debate had declined 28%. [36][37]
Study co-author William Howell, Chair of the Political Science department at the University of Chicago, explained the filibuster use “was not because those who were using the filibuster were particularly interested in scrutinizing the merits of policy changes to a greater extent, it’s because they wanted to block policy change. What they wanted to do was grind things to a halt.” [36][37]
Con 3: The filibuster is a Jim Crow relic used to block meaningful legislation.
President Barack Obama, in his July 30, 2020, eulogy for Representative John Lewis (D-GA), referred to the filibuster as “another Jim Crow relic.” [38]
Between 1917 and 1995, half of the 30 bills killed in the Senate, despite support from majorities in the House and Senate and White House support, were civil rights protections including those to ban poll taxes, employment and housing discrimination, and lynching. [39][40]
In fact, an anti-lynching bill, despite over 240 attempts in 122 years, was not passed until Mar. 7, 2022, when it passed the Senate unanimously. [41][42][43]
Southern Democrats, unable to kill legislation with votes, delayed civil rights progress for years with filibusters, even though the legislation was supported by a majority of Americans, including those living in the South. [44]
The threat of filibuster has also killed several contemporary initiatives that disproportionately impact communities of color, including climate change, universal healthcare, and gun control. [45]
For example, the American Clean Energy and Security Act passed the House but was never brought up in the Senate for certainty the bill would be quashed by filibuster. The act “would have set new renewable fuel standards and established a cap-and-trade system for reducing greenhouse gas emissions.”[45]
Kevin Kruse, historian of race and American politics at Princeton University, stated that the filibuster has “been a tool used overwhelmingly by racists…. It is the preferred choice of Southern conservatives, in whatever era and whatever party, who are trying to slow down civil rights and trying to deny equal protection for African Americans.” [46]
Discussion Questions
- Should the Senate eliminate the filibuster? Explain your answer.
- If the Senate keeps the filibuster, should the rules be reformed? If yes, how and why? If no, why not?
- Consider a cloture motion from the Senate’s history. If you were a Senator, would you have filibustered the bill or nomination? Would you have submitted a cloture motion? Do you agree with the outcome of the cloture motion and the final fate of the bill or nomination? Explain your answers.
Take Action
- Consider the Brady Center’s position that “the filibuster is killing us.”
- Examine Mira Ortegon’s suggestions to “fix” the filibuster.
- Analyze Senator Mike Lee’s position that the filibuster “protects America from bad law.”
- Consider how you felt about the issue before reading this article. After reading the pros and cons on this topic, has your thinking changed? If so, how? List two to three ways. If your thoughts have not changed, list two to three ways your better understanding of the “other side of the issue” now helps you better argue your position.
- Push for the position and policies you support by writing U.S. senators and representatives.
Sources
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- Lee Pfeiffer, “Mr. Smith Goes to Washington,” britannica.com, June 6, 2019
- All Things Considered, “History of the Word Filibuster,” npr.org, May 18, 2005
- U.S. Senate, “About Filibusters and Cloture | Historical Overview,” senate.gov (accessed Apr. 20, 2022)
- William Maclay, “Journal of William Maclay: United States Senator from Pennsylvania, 1789-1791,” books.google.com, 1789-1791
- Sarah Binder, “The History of the Filibuster,” brookings.edu, Apr. 22, 2010
- Government Affairs Institute at Georgetown University, “Filibuster Rules Changes Epitomize the Senate,” gai.georgetown.edu (accessed Apr. 20, 2022)
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- U.S. Senate, “Cloture Motions - 66th Congress,” senate.gov (accessed Apr. 20, 2022)
- Heather Timmons and Eshe Nelson, “What Is Cloture and Why Is the Senate Using It More Often?,” qz.com, Oct. 4, 2018
- Monmouth University, “Public Divided on Filibuster Reform, but Few Want to Dump It Entirely,” monmouth.edu, Apr. 29, 2021
- Democracy Docket, “What Is the Filibuster and How Can the Senate Reform It?,” democracydocket.com, Nov. 16, 2021
- Brennan Center for Justice, “Filibuster Reform: A Short Guide,” brennancenter.org, Jan. 19, 2022
- Brennan Center for Justice, “Filibuster Reform: A Short Guide,” brennancenter.org, Jan. 19, 2022
- Heritage Explains, “The Role of the Filibuster,” heritage.org, Jan. 4, 2021
- Rachel Bovard, “Why Preserving the Legislative Filibuster Is Critical for Conservatives,” heritage.org, Apr. 11, 2017
- John Thune, “Thune: Republicans Will Continue to Defend Minority Party’s Rights to Forge Bipartisanship, Compromise,” thune.senate.gov, Mar. 23, 2021
- Brian Darling, “The Filibuster Protects the Rights of All Senators and the American People,” heritage.org, Jan. 3, 2011
- Joseph Story, “Commentaries on the Constitution of the United States,” resources.utulsa.edu, 1833
- U.S. Senate, “The Idea of the Senate,” senate.gov (accessed July 11, 2022)
- U.S. Senate, “Senate Created,” senate.gov (accessed July 11, 2022)
- Pete Wichlein, “The Filibuster Is Unbearable, Odious and Infuriating. We Better Not Get Rid of It.,” thefulcrum.us, Jan. 17, 2022
- David French, “Keep the Filibuster, There Are Better Ways to Reform a Broken System,” time.com, Mar. 23, 2021
- David Super, “Keep the Filibuster. It Could Save Progressive Legislation in the Future.,” washingtonpost.com, June 22, 2021
- U.S. Senate, “Party Division,” senate.gov (accessed July 12, 2022)
- Peter Certo, “We May Be One Election From Permanent Minority Rule,” inthesetimes.com, Mar. 8, 2021
- Ian Millhiser, “America’s Anti-Democratic Senate, in One Number,” vox.com, Jan. 26, 2021
- Ari Berman, “The Insurrection Was Put Down. The GOP Plan for Minority Rule Marches On.,” motherjones.com, Mar.-Apr. 2021
- Li Zhou, “Kyrsten Sinema’s Opposition to Filibuster Reform Rests on a Myth,” vox.com, Jan. 13, 2022
- Tom Murse, “The 5 Longest Filibusters in US History,” thoughtco.com, Apr. 11, 2022
- GovTrack, “HR. 6127. Civil Rights Act of 1957. Motion That Senate Concur in House-Approved Provision Permitting a Jury Trial in Some Criminal Contempt Cases Involving Voting Rights.,” govtrack.us (accessed July 13, 2022)
- Adam Clymer, “Strom Thurmond, Foe of Integration, Dies at 100,” nytimes.com, June 27, 2003
- James Lardner, “And Then There Was Proxmire,” washingtonpost.com, Sep. 30, 1981
- Zeeshan Aleem, “A Study Shows the Filibuster Doesn’t Actually Increase Debate,” msnbc.com, Jan. 31, 2022
- Shu Fu and William G. Howell, “The Filibuster and Legislative Discussion,” uchicago.app.box.com, Jan. 18, 2022
- Bill Chappell, “Transcript: ‘What a Gift John Lewis Was’: Obama Eulogizes His Friend and Hero,” npr.org, July 30, 2020
- Sarah Binder, “Mitch McConnell Is Wrong. Here’s the Filibuster’s ‘Racial History.,’” washingtonpost.com, Mar. 24, 2021
- Tim Lau, “The Filibuster, Explained,” brennancenter.org, Apr. 26, 2021
- Peter Granitz, “Senate Passes Anti-lynching Bill and Sends Federal Hate Crime Legislation to Biden,” npr.org, Mar. 8, 2022
- Jeffery A. Jenkins and Justin Peck, “Congress Finally Passed a Federal Anti-lynching Bill — after 120 Years of Failure,” washingtonpost.com, Mar. 9, 2022
- Congress.gov, “H.R.55 - Emmett Till Antilynching Act,” congress.gov (accessed July 13, 2022)
- Mel Barnes, Norman Eisen, Jeff Mandell, and Norman Ornstein, “Filibuster Reform Is Coming—Here’s How: Seven Ideas for Change,” brookings.edu, Sep. 2021
- Alex Tausanovitch and Sam Berger, “The Impact of the Filibuster on Federal Policymaking,” americanprogress.org, Dec. 5, 2019
- Zack Beauchamp, “The Filibuster’s Racist History, Explained,” vox.com, Mar. 25, 2021
- Mark Roth, "Senate Filibuster No Longer Requires Long Floor Speech," post-gazette.com, Apr. 9, 2012
- Mitchell Scacchi, "Ask Civics 101: Why Do We Have A ’No-Talk Filibuster’ Rule?," nhpr.org, June 17, 2021