A history of the filibuster and why it should be tougher to mount

constitution law

(© Daniel Thornberg – stock.adobe.com)

The filibuster, a measure to block or delay legislative action in the Senate often through a prolonged speech, was not an integral component of the founding fathers’ constitutional vision.

This is a popular myth, but the truth is that senators were only permitted the opportunity to invoke a filibuster in 1806, after the Senate dropped what was known as the “previous question” motion, at the request of Vice President Aaron Burr. The previous question motion had empowered a simple majority of the body to cut off debate and force a vote. The decision to scrap this motion was not strategic or politically motivated—the Senate was just conducting a little housekeeping with its rules.

Still, the first-ever filibuster didn’t occur until 1837, and it wasn’t commonly used in the Senate until the late 19th century. Below are five key points regarding the filibuster and its evolution throughout history.

Filibusters in the 19th century

Filibusters were hardly used by senators prior to the Civil War due to a number of reasons. Because the Senate employed majority rule, it was often the expectation among senators that contentious matters would eventually be brought to a vote. The Senate also had limited responsibilities relative to today, which left plenty of time for the party that controlled the Senate to wait out the opposition. Moreover, voting coalitions weren’t as polarized as they are now.

Much of this changed during the 1850s. The Senate expanded and Republicans and Democrats became more polarized on major issues. As a result, filibusters occurred in almost every Congress as of the 1880s. These were invoked by senators to delay legislation regarding election law, civil rights, and the appointment of Senate officers.

Even still, many Senate leaders unsuccessfully attempted to ban filibusters in the 19th and early 20th centuries. The unanimous consent agreement, which typically limits allotted time for debate of specific issues, was instead developed as an alternative solution by opponents of the filibuster.

Implementation of the Cloture Rule in 1917

Cloture, or Rule 22, was another device created for Senate reform. Implemented at the urging of President Woodrow Wilson in 1917, this rule allows the Senate to effectively put an end to any debate so long as the motion receives a two-thirds supermajority vote. President Wilson was moved to enact the rule after Republican senators filibustered his proposal to arm merchant ships during World War I. It was adopted by the Senate in large part due to its framing as a national security matter among Democrats.

The Senate first invoked cloture in 1919 to halt a filibuster against the Treaty of Versailles. However, the device has since been relatively ineffective at ending filibusters because of the difficulty of obtaining the two-thirds supermajority vote. Perhaps most famously, cloture was invoked following a 60-day filibuster designed to delay the Civil Rights Act of 1964.

Popular filibusters throughout history

Sen. Strom Thurmond invoked one of the most well-known filibusters in Senate history. The South Carolina Democrat, in defense of Jim Crow, sought to block the Civil Rights Act of 1957. In doing so, he commanded the Senate floor for 24 consecutive hours. He even went so far as to take a steam bath beforehand to remove liquid from his system, so he wouldn’t have to leave the floor to use the restroom.

More recently, Sen. Jeff Merkley spoke for 15 hours straight in opposition to the nomination of Judge Neil Gorsuch to the U.S. Supreme Court. This, however, was just performative as it didn’t delay legislative action.

In addition to Thurmond, Sen. Huey Long and Sen. Rand Paul led memorable filibusters in 1935 and 2013, respectively. The latter spoke for 13 consecutive hours to delay the nomination of John Brennan as head of the CIA. Senators have also sung songs and read the phone book to delay legislation.

Democrats call for change

Should the Democrats win the presidency as projected by the media and take back the Senate majority, some within the party have pondered the idea of eradicating the filibuster to prevent Senate Republicans from blocking major legislative changes.

Sen. Jon Tester of Montana, for instance, has said that he is in favor of the idea of senators from both parties coming together to create bipartisan solutions, but will reconsider his stance on the filibuster if Republicans use it excessively to stifle a Democratic president’s agenda. Maine independent Sen. Angus King shared the similar view that the power of the filibuster should not be abused.

Why it shouldn’t be removed

The filibuster, argues bipartisan think tank No Labels founder Nancy Jacobson, is an important legislative device that has value when applied correctly. However, the filibuster has changed significantly over the years. Now, senators no longer need to show passion and resolve by delivering lengthy speeches on the floor for hours on end. Instead, senators can simply indicate privately that they are invoking a filibuster, at which point the onus is on the sponsor of the bill to find 59 other senators to support the cloture motion.

“Rather than enhance bipartisanship, as the talking filibuster served to do, the procedure today simply nurtures obstruction,” notes Jacobson. “That’s a problem that deserves a remedy.”

“But by eliminating the filibuster altogether, the Senate will also lose the impetus to collaborative leadership. If a simple majority can work its will without even the threat of opposition, the Senate becomes a mirror of the House, where the minority is almost entirely locked out of power and where huge changes to the rules and regulations that govern our lives and our economy could happen every two or four years depending on who is in power.”


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