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Copyright 2021 Dan Cofran

A Filibuster is an endless speech by a legislator to talk a bill to death by not surrendering the floor until the other side gives up or a legislative session ends.

“Filibuster” is from the Dutch and Spanish words for “freebooter or “pirate,” as in one who hijacks a legislative session.

The Senate filibuster isn’t in the Constitution. It’s an arcane Senate rule dating back to the nation’s founding. The House does not have a rule allowing filibusters.

Senate Rules were amended in 1917 to limit filibusters, but only if 2/3rds (67%) of the Senate voted to limit and close debate (called “cloture”), even though the approval vote to approve a bill needed only a simple majority to pass.  The 2/3s majority was reduced to 3/5s (60%) in 1975.

Senate filibusters are used to oppose bills for new laws and presidential appointments for federal court judges and top agency officials.

Filibuster supporters claim it is necessary to preserve a long-standing tradition for “unlimited debate” in the Senate.  They also claim it forces a bill’s supporters to compromise with opponents.

Filibuster opponents, on the other hand, claim it is a parliamentary tactic used to defeat bills and presidential appointments.  They contend it converts the Senate into a minority rule institution in direct opposition to the Constitution’s bedrock principle for majority rule.  They also note that the Senate filibuster has been weaponized almost exclusively to defeat civil rights legislation for nearly 100 years.

What’s this all about?  What’s the filibuster’s history? What does the Supreme Court say?  What are the facts?  Is it time to keep, eliminate or modify the Senate filibuster?

Filibuster History

The filibuster isn’t in the Constitution.  When the first Senate began meeting in 1789, it adopted its rules for parliamentary procedure.  These rules didn’t include the filibuster.  Instead, the rules included the now familiar motion to “call the question” to end debate and vote.  A motion to call the question, if seconded, was non-debatable and proceeded to an immediate simple majority vote for passage.  This is the procedure the House used in 1789 and still uses today.

There are no Supreme Court decisions directly on point for guidance. Under the Constitution, the House and Senate get to set their own procedural rules.  The Supreme Court stays out of rule disputes unless a rule violates the Constitution.  These are considered “non-justiciable” legislative or “political” questions.  They are off-base for the courts under the Constitutional principle for separation of powers among the three branches of the federal government.

The 1800s

Historians agree the early Senate was considered something of an elite body.  Senators were elected by their state legislatures as respected, successful gentlemen (sorry, ladies). Senators were not voted on by the people until over 100 years later when the 17^th Amendment was passed in 1913 (to disrupt special interests control of Senator selection in state legislatures).

As a result, early Senators saw the Senate as a collegial body, governed by courtly politeness. As a matter of courtesy and respect, Senators were not cut off in debate.  It was considered rude not to let a colleague have his (again, sorry, ladies) full say.

This may be the source of today’s claim for a tradition of unlimited debate in the Senate.  There is no other authority or tradition for unlimited debate.  It was a matter of professional courtesy, not partisan obstruction.

In fact, when Aaron Burr retired from the Senate as Vice President in 1806, he proposed several amendments to the Senate rules.  One was to eliminate the motion to call the question to end debate because it was used so infrequently. The motion was repealed with little discussion or consideration of consequence.  Senators kept on droning or shouting for many years while their colleagues waited patiently.

To be sure, Senators fought a number of highly significant legislative battles in the 1800s, e.g., national banking and the extension of slavery into the territories and states as the nation expanded to the west.  But these battles were fought primarily with states’ rights legal arguments, not procedural motions.  For example, southern Senators claimed that states had the legal right to “nullify” federal laws within their boundaries if they desired.

The 1900s

By the 1900s the nation had grown dramatically in population, size, wealth, power and social complexity.  The Senate workload increased dramatically.  Debates were getting long-winded and testy, particularly over U. S. involvement in World War I.  The Senate had other pressing business.

Debates were purposely prolonged as an obstacle to wear the other side down or run out of time before adjournment to prevent voting.  This was called the “talking” filibuster. A Senator had to speak and hold the floor for many hours for it to work.  As long as he or she (Hattie Caraway, D-Ark., the first woman Senator, was elected 1932) held the floor, no other Senators could be recognized to speak or end a debate.  All Senate business halted.

In 1917, a group of Senators blocked a bill to arm U.S. merchant ships exposed to German submarine attacks.  An overwhelming majority (over 3/4s) of the Senate supported the bill.  At President Wilson’s urging (he described the filibustering Senators as a “little group of willful men”), the Senate amended the Senate Standing Rule for motions to allow a “cloture” motion to limit (one hour per Senator) and close debate on a 2/3s (67%) super majority vote of those present and voting (not the full Senate membership in office).  The bill passed without opponents launching another filibuster.

The threat of cloture frequently avoided filibusters, but not always.  The Treaty of Versailles formally ending the war was successfully filibustered in the Senate and never approved.

Between World War I and Word War II, Senate filibusters were rare.  However, civil rights started moving to the national stage after World War I.  Lynchings of African Americans started hitting the national news in the 1920s and 1930s.  Anti-lynching bills were introduced, but Senators from southern states filibustered all the bills.  None passed.

Civil Rights Legislation

Public pressure for civil rights laws increased after World War II.  Filibuster defenders, mostly from southern states, consistently opposed them with filibusters.  According to one count, there were 49 filibusters from 1917 through 1970.  Fully one half opposed civil rights bills.

In 1946, five southern state Senators teamed up and successfully filibustered a civil rights fair employment practices bill for 54 days.  The bill’s sponsor finally withdrew the bill.  Even though a simple majority supported the bill, he couldn’t muster 2/3rds to end the filibuster.

Marathon filibuster speeches in the 1950s and 1960s were the norm.  They were often televised on national networks.  Senate filibuster speeches lasting over 20 hours were not uncommon.  Senator Strom Thurmond (R-SC) spoke for over 24 hours to filibuster the Civil Rights Act of 1957.  A marathon filibuster opposing the landmark Civil Rights Act of 1964 went on for over 75 hours, including a 14-hour speech by Sen. Robert Byrd (D-WV).

There were modest efforts to reform the Senate filibuster from 1949 through 1959. While the Senate kept the 2/3rds cloture requirement, it went back and forth between being based on 2/3rds of the full Senate membership vs. 2/3rds of those present and voting.  The Senate rules were amended in 1959 to require a 2/3rds super majority vote to amend any Senate rule, including the 2/3rds cloture motion.

The cloture percentage vote requirement finally was reduced to 3/5 (60%) following the 1970s Watergate scandal.  Democrats took over control of the Senate in 1972 and passed a number of reforms, including reducing the super majority for limiting (30 hours total) and closing Senate debate from 2/3rds to today’s 3/5ths (60%), based on the full Senate membership in office. However, Senate rules require 2/3rds (67%) of those present and voting to amend a Senate rule (as opposed to ending debate and voting on legislation or a presidential appointment).

The Silent Filibuster

Filibusters continued into the 1970s.  A “two track” system was informally agreed to in 1975 allowing other Senate business to continue.  Mornings were used for filibuster speeches.  Afternoons were used for other Senate business.

This informal arrangement soon morphed to include the “silent” filibuster.  By this time, the simple threat of a filibuster was enough to stop a bill or nomination in its tracks.

A Senator could simply tell the majority or minority leader of his or her intent to filibuster a bill or nomination.  The minority or majority leader would inform the other party of the intent to filibuster, often without naming the objecting Senator.  That would stop the bill from even coming up.  It would not to see the light of day unless and until its sponsors could rustle up 60 votes to pass a 3/5ths cloture motion to limit and end debate to proceed to a vote.

This informal notice took the place of a Senator’s having to take the floor and speak in public interminably.  The “silent” filibuster replaced the “talking” filibuster. Senators no longer had to filibuster in public view.  Stealth now rules to this day.

In the 1980s and 1990s filibusters were used increasingly by both parties on a wide range of subjects, but civil rights remained the principal target.

After 2000, what at one time had been a once-a-year last resort used for only the most controversial legislation, the filibuster became a standard measure for blocking the other party’s bills and nominations.  There were only two cloture votes during the eight-year Eisenhower presidency in the 1950s.  There were 505 during the eight-year Obama presidency, an average of 63 per year.

The “Nuclear Option”

Filibusters met a new high following President Obama’s election in 2008.  Senate filibusters blocked votes on 36 of his federal judge and federal agency nominees during the first five years of his presidency.

Senate Majority Leader Harry Reid (D-NV) in 2013 decided to use the “nuclear option,” an obscure parliamentary measure used to reduce the cloture requirement from 3/5ths to a simple majority for top federal agency officials and federal judges other than the Supreme Court Justice.  It worked.

When Republicans took control of the Senate in 2015, they used the nuclear option to get Supreme Court Justices approved with a simple majority.  They used it for all three of the Gorsuch, Kavanaugh and Coney-Barrett Supreme Court Justice nominations.

So far, the nuclear option has not been used for legislation.

Conclusion

The weight of history and the record should send the Senate filibuster to the dust bin.  It is not in the Constitution.  There is no long-standing Senate tradition for “unlimited debate.” Indeed, Senate debate has been limited by cloture rules to limit and close debate since 1917.

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© 2021, Dan Cofran. All rights reserved.