Wednesday Reader: The Filibuster
A brief history and overview of the filibuster in the United States Senate.
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Every Wednesday, we provide an informational newsletter about various aspects of government.
This week, we are talking about the filibuster in the United States Senate.
What is the filibuster?
By definition, a filibuster is “a tactic used in the United States Senate to delay or block a vote on a measure by preventing debate on it from ending” [1,2]. Why does this matter? Per Senate rules, the Senate has to “invoke cloture” on a measure (a bill, resolution, etc) before proceeding to the vote itself, meaning they have to vote on ending the debate. In other words, the senators are voting on whether or not they are done discussing the order of business, signaling that they are ready to vote on it.
Like we touched on last Wednesday in our post about supermajorities, the Senate requires a 3/5 vote, or 60 out of 100 votes, to invoke cloture on a measure before bringing it to a simple-majority final vote. Because neither party possesses a 60 seat majority, this often results in the minority delaying or blocking the cloture vote, and if the cloture vote doesn’t come to pass, then the measure is not voted on. And thus, the filibuster.
Are there ways around the filibuster in some circumstances? Yes. In some ways the filibuster is being dissolved. In other ways, however, the filibuster remains an immensely powerful tool.
More on that in a bit.
First, let’s talk about some history.
Abridged Filibuster Origin Story
References to filibuster date back to the very first meeting of the Senate on September 22, 1789, where, according to Pennsylvania Senator William Maclay, the “design of the Virginians…was to talk away the time, so that we could not get bills passed” [2]. In 1811 precedent was introduced in the House of Representatives to limit debate, but this did not definitively come to the Senate for another 100 years, when, in 1917, the rule of cloture was adopted by a yea-and-nay vote of 76 YEAS to 3 NAYS. This came at the urging of then-President Woodrow Wilson after twelve antiwar Senators filibustered a bill that would have allowed the arming of merchant vessels so that they could defend themselves against German submarines [1].
Just because cloture became a Senate rule in 1917 does not mean it ended the filibuster, however, since a supermajority of votes was still needed to invoke cloture and end debate. In the two party system of the United States, this meant (and still means today) that one party inevitably needed votes from the other, and if the vote was for something controversial, this could prove very difficult. Filibustered legislation clogged the Senate chamber for weeks sometimes, and there were some EXTREMELY long floor speeches. Check the end of this article for a filibuster leaderboard.
In the 1970s the “two track” system was introduced, meaning filibustered bills did not quite literally bring the Senate to a halt and could be considered simultaneously alongside other legislation [1,4]. Since this removed the need for a senator to physically hold the floor for debate to filibuster something, it eventually evolved into the form we see today.
How has the filibuster taken shape over the past few presidencies? What may become of it in the years ahead?
The Filibuster Currently
The modern filibuster, sometimes known as “the silent filibuster,” allows a Senator to deliberately delay a bill or other measure through various procedures while simultaneously allowing the Senate to conduct other business [1, 4].
While the act of performing a filibuster in person is still in use (as can be seen on the leaderboard below), the two track system rendered holding the floor and making absurdly long speeches unnecessary. According to The Constitution Center, “Today’s system is much more about the threat of a filibuster blocking a measure from consideration by the full Senate, and not the act of a Senator taking the floor and speaking for hours” [5].
For example, Senators know that, because of the 3/5 requirement to invoke cloture, they will need 60 votes to pass legislation. When another Senator warns that they may filibuster the legislation being considered, the Senator or Senators sponsoring the measure begin searching for the 60 votes before the cloture vote is even called [5]. In some ways, the threat of an actual filibuster has become a filibuster in itself, and for this reason many people refer to 60 vote requirement as “The Senate Filibuster.”
But what happens if Senators really want to do something and they don’t have the 60 votes needed to invoke cloture? Are they doomed? It depends. For legislation, probably, as 60 votes are still needed to end debate.
For various nominations, however, Senators can now confirm judicial picks via a simple majority due to a little something called…
The Nuclear Option
What is the nuclear option in the United States Senate?
Several times in recent years, Senators have sidestepped the 60 vote requirement via changing the rules. Here’s how it works:
Senator A wants to confirm his party’s favorite judicial nomination but he doesn’t have the votes; let’s say he has 54 votes, more than half but still not enough to end debate. So he raises a point of order, basically a Senator saying, “hey, I think a rule has been broken.” Except in this case a rule has not been broken; the Senator raising the point of order is actually attempting to change the rules.
The president pro tempore, i.e. the acting chair of the Senate while the Vice President is away (the VP is the President of the Senate), says “that’s not a thing here,” and they rule as such, basically stating the the point of order is wrong (which in this case, it technically is).
Senators are allowed to appeal the president pro tempore’s ruling and Senator A does so. This brings a vote to the Senate floor to “uphold the ruling of the chair.” Interestingly, this is a simple majority vote, meaning just over one half of Senators are needed to vote in favor.
Let’s say the Senate votes on whether or not to uphold the ruling of the chair and they vote 43 YEAS to 56 NAYS, meaning that the Senators voted to not uphold the ruling. If the Senate votes that they don’t want to uphold the ruling, then the point of order raised effectively changes the Senate rules and becomes acting precedent.
This is seldom done, as, according to the Congressional Research Service, its a risky move that challenges the very institution of the Senate:
Although it is not unusual for Senators to appeal the rulings of the chair, the Senate only rarely overturns the rulings of its presiding officer. To routinely do so would undermine the continuity of Senate rules and the consistency of rule interpretation essential to legislative work [3].
When has this been accomplished recently?
In 2013, Democratic Majority Leader Harry Reid used the nuclear option to push through some of President Obama’s judicial nominees, effectively changing the Senate rules to allow for executive nominees (not including the Supreme Court) to be confirmed via a simple majority. However, 60 votes were still needed to invoke cloture on Supreme Court Nominees [6].
In 2017, Republican Majority Leader Mitch McConnell used the nuclear option to extend this precedent to Supreme Court nominees in an effort to confirm President Trump’s pick Neil Gorsuch, and was successful. After this use of the nuclear option, the Senate can now invoke cloture on Supreme Court nominees via a simple majority [6].
In 2019, after Senate Democrats filibustered several of Trump’s lower-level nominations, Senate Republicans again used the nuclear option to limit the amount of post-cloture debate on such nominations to two hours [6].
As can be seen above, the nuclear option is becoming more and more common, though it has not yet been used to abolish the 60 vote threshold required to end debate on legislation. Could this happen? Definitely. Senators have tried several times in recent years, most notably Senate Democrats trying to sidestep Republican filibustering of voting rights reform during President Biden’s tenure.
Effects of the Filibuster
In closing, how has the filibuster affected our current Congress? Quite a lot, actually.
The amount of legislation successfully clearing Congress and becoming law has significantly decreased in the past few decades. For example, in the 85th Congress (late 1950s), around 25% of bills introduced in the Senate were enacted [1]. By 2010, this number had decreased to 2.8% [7]. This is a massive reduction in productivity.
Since the supermajority requirement to invoke cloture has created a legislative bottleneck in Congress, there are more opportunities for the executive branch to fill the gap via executive orders and other policy procedures, thus reducing the influence of Congress both practically and in the eyes of the American people [7].
And now to the best part.
Filibuster Leaderboard
These guys make long speeches! I got this information here.
1.) Strom Thurmond (D-SC) unsuccessfully filibustered The Civil Rights Act of 1957 for 24 hours and 18 minutes. He apparently read a bunch of laws and writings of George Washington.
2.) Alfonse D’Amato (R-NY) unsuccessfully filibustered a 1987 amendment to The Defense Authorization Act for 23 hours and 30 minutes. D’Amato was apparently known for being a funny guy during his filibusters, reading the phone book during this one. He also one time stabbed a poster of a “taxasaurus rex” with a giant pencil.
3.) Wayne Morse (I-OR) unsuccessfully filibustered the 1953 Submerged Lands Act for 22 hours and 26 minutes.
4.) Ted Cruz (R-TX) unsuccessfully filibustered the Continuing Appropriations Act, giving a 21 hour and 18 minute floor speech to hold up the budgeting bill and, as a result, defund the Affordable Care Act. He read Green Eggs and Ham by Dr. Seuss (hopefully not the whole time).
5.) Robert M. La Follette Sr. (R-WI) unsuccessfully filibustered the Aldrich-Vreeland Act of 1908 for 18 hours and 23 minutes.
6.) William Proxmire (D-WI) unsuccessfully filibustered the 1981 debt ceiling increase for 16 hours and 12 minutes.
7.) Huey Long (D-LA) unsuccessfully filibustered an amendment to the National Industrial Recovery Act in 1935 for 15 hours and 30 minutes.
8.) Jeff Merkely (D-OR) unsuccessfully filibustered the nomination of Neil Gorsuch to the United States Supreme Court with a 15 hour and 28 minute floor speech in 2017.
9.) Alfonse D’Amato (R-NY) filibustered an amendment to the Revenue Act of 1992 15 hours and 13 minutes. Thanks to some help from sixmorecharacters, I learned that he was eventually unsuccessful due to the House of Representatives recessing for the year.
10.) Chris Murphy (D-CN), along with other senate democrats, filibustered for gun control measures in the wake of the horrific Pulse nightclub mass shooting of 2016 for 14 hours and 50 minutes. After the filibuster, senate republicans agreed to vote on two proposals from democrats: banning gun sales to people on terrorist watch lists and extending background checks to gun show and internet gun sales. Unfortunately, both of these measures failed at vote.
That wraps up this week’s Wednesday post!
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Works Cited
1.) https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate#cite_note-13
2.) https://web.archive.org/web/20220928043227/https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm
3.) Heitshusen, Valerie. Congressional Research Service Report: Points of Order, Rulings, and Appeals in the Senate, 2018.
4.) https://www.brennancenter.org/our-work/research-reports/filibuster-explained
5.) https://constitutioncenter.org/blog/filibustering-in-the-modern-senate
6.)https://en.wikipedia.org/wiki/Nuclear_option#2017:_Cloture_on_Supreme_Court_nominations