The Case Against the Filibuster

At the funeral service for Rep. John Lewis, President Barack Obama called on elected leaders to fulfill the civil rights legend’s vision of expanding and protecting our democracy for all Americans. He recognized the obstacles — partisan gerrymandering and a weakened Voting Rights Act among them — but insisted that we move forward to challenge failed practices and old policies that have stood in the way. “And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American,” said Obama, “then that’s what we should do.” footnote1_fnwdhba 1 Max Cohen, “Obama Calls for End of ‘Jim Crow Relic’ Filibuster If It Blocks Voting Reforms,” Politico, July 30, 2020, https://www.politico.com/news/2020/07/30/barack-obama-john-lewis-filibuster-388600.

President Obama was right. The filibuster was designed and used for decades to thwart civil rights legislation. In recent years, its use and abuse has only grown. Sixty votes are routinely needed in the Senate for even the most minor matters, making it nearly impossible to legislate in the national interest or find common ground. An obstreperous minority has the ability to grind the Senate, and Congress more generally, to a halt. To a greater degree than is commonly realized, this is a relatively new phenomenon.

During the Obama administration, Senate Republicans took obstruction to a new level, using the filibuster more than ever in history. But the use of the tactic had been climbing even before Obama became president, prompting recent presidents of both parties to use executive orders and other administrative tools to circumvent Congress. The Senate is already minoritarian because of the overrepresentation of small and rural states in the body. For example, California, with 39 million people, gets two senators in Washington, the same as Wyoming, Vermont, and Alaska, each of which is home to fewer than a million people. footnote2_hlctuc6 2 Jonathan M. Ladd, “The Senate Is a Much Bigger Problem Than the Electoral College,” Vox, April 9, 2019, https://www.vox.com/mischiefs-of-faction/2019/4/9/18300749/senate-problem-electoral-college. And by 2040, given projected population growth, two-thirds of Americans will be represented by just 30 percent of the Senate. footnote3_6fbjh1f 3 Philip Bump, “By 2040, Two-Thirds of Americans Will Be Represented by 30 Percent of the Senate,” Washington Post, November 28, 2017, https://www.washingtonpost.com/news/politics/wp/2017/11/28/by-2040-two-thirds-of-americans-will-be-represented-by-30-percent-of-the-senate/. Given that the executive branch has increasingly moved away from legislative initiatives because of Senate obstruction, the filibuster continues to undermine a real democracy.

Today, our country has urgent needs. The struggle for democracy and racial justice must be at the heart of our politics. Chief among these goals must be repair of our democratic systems, which, this pandemic has revealed, are so evidently in need of renewal. Millions of Americans are calling for major reforms to ensure our democracy continues to function — overhauling our elections, creating stricter ethics rules for elected and appointed officials, limiting the poisonous influence of money in politics, and ensuring that voters choose their elected officials rather than the reverse. These reforms will make our institutions responsive to the popular will.

Under current Senate rules, however, a minority can stymie efforts to fix our broken system. Not slow those reforms, not deliberate, not debate, but simply block them. For that reason, democracy advocates and their elected champions must demand that the filibuster be eliminated. If we are to take the steps that are urgently needed to save our democracy, we at long last must abolish the filibuster.

For over a decade, the Brennan Center has supported reform of the filibuster. In January 2010, we launched a special, year-long project to address procedural dysfunction in the Senate. Our ultimate goal was to restore legislative accountability by reforming rules that incentivize relentless and unprincipled obstruction. That year, our experts testified several times before the Senate Committee on Rules and Administration, the organization submitted general testimony to the same committee, and we put out our first report on filibuster abuse. footnote1_t6t4x5i 1 Examining the Filibuster: History of the Filibuster 1789–2008, Submitted to the U.S. Senate Committee on Rules & Administration, 111th Cong. (2010) (testimony of Mimi Marziani, counsel at the Brennan Center for Justice, and Diana Lee, researcher at the Brennan Center for Justice); Examining the Filibuster: Silent Filibusters, Holds and the Senate Confirmation Process, Submitted to the U.S. Senate Committee on Rules & Administration, 111th Cong. (2010) (testimony of Mimi Marziani, counsel at the Brennan Center for Justice, and Diana Lee, researcher at the Brennan Center for Justice); Examining the Filibuster: Legislative Proposals to Change Senate Procedures, Submitted to the U.S. Senate Committee on Rules & Administration, 111th Cong. (2010) (testimony of Mimi Marziani, counsel at the Brennan Center for Justice); Examining the Filibuster: The Filibuster Today and Its Consequences, Submitted to the U.S. Senate Committee on Rules & Administration, 112th Cong. (2010) (testimony of the Brennan Center for Justice at NYU School of Law); and Mimi Marziani, Filibuster Abuse, Brennan Center for Justice, 2010, https://www.brennancenter.org/sites/default/files/2019–08/Report_Filibuster%20Abuse.pdf. Its recommendations included the following:

• Allowing the minority party ways to meaningfully participate, including the right to offer germane amendments
• Making it difficult for obstructionists to delay action preferred by the majority, such as placing the burden upon filibustering senators to sustain a filibuster and instead forcing filibustering senators to stay on the Senate floor and actually debate
• Bringing every measure or nomination to a yes-or-no vote in a timely manner once all senators have had a reasonable opportunity to express their views

In November 2012, we issued a follow-up report, Curbing Filibuster Abuse, that provided empirical evidence of how rampant filibuster abuse was causing an unprecedented lack of legislative productivity. For example, it showed that the 110th Senate (2007–2009) passed a record-low 2.8 percent of bills introduced, a 66 percent decrease from 2005–2006 and a 90 percent decrease from 1955–1956. And it endorsed the recommendations of the first report. footnote2_4dlnl7p 2 Mimi Marziani, Jonathan Backer, and Diana Kasdan, Curbing Filibuster Abuse, Brennan Center for Justice, 2012, https://www.brennancenter.org/sites/default/files/2019–08/Report_Curbing_Filibuster_Abuse.pdf. In December 2012, a group of leading academics and constitutional scholars, including Brennan Center board member Burt Neuborne, sent a letter to the Senate in support of changing filibuster rules. We endorsed and circulated it. That same month, we urged the public to call their senators to express their support for changing filibuster rules and urged them to emphasize the importance of a talking filibuster. In November 2013, Brennan Center President Michael Waldman put out a statement praising the Senate’s rule changes to limit filibusters for presidential nominees. And over the years, our staff and experts have written extensively on the subject. Frederick A. O. Schwarz Jr., “The Filibuster Myth,” Brennan Center for Justice, January 15, 2013, https://www.brennancenter.org/our-work/analysis-opinion/filibuster-myth; Victoria Bassetti, “In Filibuster We Trust,” Brennan Center for Justice, July 27, 2015, https://www.brennancenter.org/our-work/analysis-opinion/filibuster-we-trust; Alicia Bannon, “Filibuster Fight Isn’t Over,” Brennan Center for Justice, December 3, 2013, https://www.brennancenter.org/our-work/analysis-opinion/filibuster-fight-isnt-over; and Elizabeth Goitein, “Fixing Justice: Don’t Filibuster the Rule of Law,” Brennan Center for Justice, April 9, 2009, https://www.brennancenter.org/our-work/research-reports/fixing-justice-dont-filibuster-rule-law.

The Senate did make changes to the filibuster rules subsequent to those reports and testimony. Although a cloture motion — the formal process to bring an end to a filibuster — is still necessary for legislation, the Senate adopted changes to its rules governing nominations to executive branch positions and federal judgeships. In 2013, Democrats altered filibuster rules so that only a simple majority is required to end debate on nominees to lower courts and administration positions. footnote3_mk9f6xe 3 Jeremy W. Peters, “In Landmark Vote, Senate Limits Use of the Filibuster,” New York Times, November 21, 2013, https://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster.html. In 2017, Republicans extended that change to Supreme Court nominations. footnote4_toakcm0 4 Matt Flegenheimer, “Senate Republicans Deploy ‘Nuclear Option’ to Clear Path for Gorsuch,” New York Times, April 6, 2017, https://www.nytimes.com/2017/04/06/us/politics/neil-gorsuch-supreme-court-senate.html.

The last several decades have shown that our democracy is on shakier ground than many had believed. The pandemic has made it all the more clear that our system does not function well, with many avenues for delaying and hindering legislation. This dysfunction has prompted a multifaceted effort by academics, advocacy organizations, and bipartisan alliances of political leaders to shape a reform agenda to bolster our institutions. With an election in November, democracy advocates believe we must be ready to fight to achieve some, if not all, of these reforms.

On this agenda are many legislative initiatives that will need to pass through Congress. The Senate has been described as the world’s greatest deliberative body. That hokum has been proven false over the past decades as “deliberative” has become “dysfunctional.” Right now, the filibuster has made the Senate a graveyard of new ideas. The ability of a small group to derail legislative action has prevented senators from working across party lines to engage in bipartisan deliberation and policymaking. Without reform, if not abolition, of this rule, advocates for democracy will not be able to move their agenda into action.

The filibuster is a procedural tool used to delay or derail entirely the ability to conclude debate on legislation and thus come to a vote to pass or defeat it. Under Senate rules, a cloture petition is the mechanism by which a filibuster can be overcome. The cloture motion was once rarely used but has come to characterize how the Senate operates, making it difficult to enact laws without a 60-vote supermajority.

Defenders of the filibuster claim it is a central aspect of the unique culture of the Senate, allowing for longer debate and deliberation than a simple-majority rule. Without it, they claim, the minority would no longer be able to influence the process. But for decades, the filibuster has ceased to serve the purpose of allowing contrary ideas to be aired and promoting debate. The simple threat of objection simply ends all discussion. Rare is the day when senators actually take the floor to discuss their opposition to a bill and to explain the basis for their filibuster. For those who worry about the right of the minority to speak, other mechanisms allow for more fruitful participation.

In the past, the Brennan Center has suggested reforming the filibuster to address its most significant abuses and obstruction. In 2020, however, we are beyond the stage of tinkering. It is time to abolish the filibuster altogether.

Absent from the Constitution and Early Congresses

Some Americans mistakenly believe the filibuster originated with the 1789 Constitution and was part of the framers’ plan for how the Senate should function. footnote1_lzra0mg 1 Sarah A. Binder, “The History of the Filibuster,” Brookings Institution, April 22, 2010, https://www.brookings.edu/testimonies/the-history-of-the-filibuster/; and Ezra Klein, “7 Myths About the Filibuster,” Vox, May 27, 2015, https://www.vox.com/2015/5/27/18089312/myths-about-the-filibuster  It plainly was not. The Constitution leaves it up to each house of Congress to set its own rules. Indeed, the framers considered and rejected the idea of requiring supermajorities for legislation. As Alexander Hamilton wrote in Federalist 22, “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.” They knew such built-in obstruction could doom a republic.

Tellingly, the filibuster did not become a rule or practice of the Senate until 129 years after the Constitution was ratified. Moreover, not only is the Constitution silent on the matter, but it prescribes supermajority votes only for very specific subjects, such as treaties, making clear that a simple majority is the expectation for other circumstances, including legislation. This indicates that supermajorities, as required by the filibuster, are otherwise disfavored. footnote2_7bwxyf3 2 In fact, some legal scholars have argued that the filibuster is unconstitutional because it is inconsistent with the Constitution’s “implicit premise” of majoritarianism. Josh Chafetz, “The Unconstitutionality of the Filibuster,” Connecticut Law Review 43 (2011): 1003–1027; and Burt Neuborne, “One-State/Two-Votes: Do Supermajority Senate Voting Rules Violate the Article V Guaranty of Equal State Suffrage?” Stanford Journal of Civil Rights and Civil Liberties 10 (2014), http://online.wsj.com/public/resources/documents/Neuborne.pdf.

In the years immediately following ratification of the Constitution, the Senate functioned under majoritarian rule. Before 1806, the Senate followed a rule allowing debate to be brought to a close by a simple majority of the body. footnote3_kqut4le 3 Kristi Oloffson, “Filibusters,” Time, November 2, 2009, http://content.time.com/time/politics/article/0,8599,1933802,00.html.  Apparently by mistake, the Senate eliminated the rule shortly after but nonetheless did not experience a filibuster for 30 years, indicating that it was not a practice of the early Senate. footnote4_hog7nwz 4 Binder, “The History of the Filibuster.”

It was not until the 1850s that the term filibuster was employed in reference to stem-winding speeches by senators intending to push back the timing of a vote, either because they sought to kill a bill or gain other leverage. footnote5_982chlc 5 Lewis L. Gould, The Most Exclusive Club: A History of the Modern United States Senate (New York: Basic Books, 2005), 8. But even then the filibuster was rarely used, as it required senators to physically stay on the Senate floor and continue their speechmaking, a tactic difficult to sustain for any great length of time. Its impact was therefore limited, perhaps causing some delays but not derailing legislation opposed by the filibustering senators — which might explain why “almost every filibustered measure before 1880 was eventually passed.” footnote6_bmi8hbd 6 Catherine Fisk and Erwin Chemerinsky, “The Filibuster,” Stanford Law Review 49 (1997): 181–199.

An Innovation for Obstruction

It was only at the close of the 19th century that filibusters began to make a difference in legislative outcomes. footnote7_p5b28g7 7 Sarah Binder and Steven Smith, Politics or Principle? Filibustering in the United States Senate (Washington, DC: Brookings Institution Press, 1997), 161–197. Senators realized that the filibuster could thwart disfavored bills. In turn, other senators and outside reformers demanded that Senate rules be changed to allow a simple majority to determine legislative outcomes.

This conflict came to a head in 1891 after a series of filibusters by Democrats threatened to derail legislation authorizing federal troops to supervise federal elections — an early use of the tool to block civil rights protections for Black Americans. Seeking to cut off debate, Republican leaders appealed to Vice President Levi Morton to rule on whether a majority could bring debate to a close and proceed to a vote. footnote8_0gngefq 8 Gregory J. Wawro and Eric Schickler, Filibuster: Obstruction and Lawmaking in the U.S. Senate (Princeton, NJ: Princeton University Press, 2006), 62–87.  At that time, the Senate had yet to adopt any provision to end debate — in other words, to bring a filibuster to a close — because the filibuster’s use had been so rare. Sen. George Edmunds (R-VT) defended what would become the cloture rule, explaining, “The Constitution . . . necessarily implies that no minority, whether of one or any other number, should or could unduly obstruct the expression of the will of the majority. footnote9_y214mtr 9 “The Senate’s New Rule,” Washington Post, December 28, 1890. Edmunds’s proposal did not pass. footnote10_yradjfn 10 Key Republicans backed away from both the civil rights initiative and the proposed procedural reform, viewing them as inextricably linked. Wawro and Schickler, Filibuster, 76–86. But during World War I, a filibuster by what President Woodrow Wilson decried as a “little group of willful men” against legislation seeking to arm U.S. merchant ships against German attacks caused an outcry for reform. footnote11_qqla0c6 11 “In a formal statement to the country that bristled with the indignation he felt,” President Woodrow Wilson chastised the group of senators standing in his way as a “little group of willful men representing no opinion but their own.” According to President Wilson, their actions “rendered the great Government of the United States helpless and contemptible.” “Sharp Words by Wilson,” New York Times, March 5, 1917, https://timesmachine.nytimes.com/timesmachine/1917/03/05/issue.html.  Wilson made clear his strong support for a change to Senate rules, lamenting that “the Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.” footnote12_iwcpr8t 12 Fisk and Chemerinsky, “The Filibuster,” 197.

Proponents of reform continued to make the point that the Constitution left it to the Senate to set its own rules by a majority vote at the beginning of each new Congress — allowing members to change the rule so that a mere majority could win a vote. footnote13_jdlhbw3 13 55 Cong. Rec. 17 (1917); Martin B. Gold and Dimple Gupta, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster,” Harvard Journal of Law and Public Policy 28 (2005): 208. Sen. Thomas Walsh (D-MT) explained to the chamber that the Constitution gave each house the power to set its own rules, something done by the House of Representatives each Congress via a majority vote. Indeed, he argued, the case was even stronger for the Senate, since it is a “continuing body,” whereby some senators remain even while others are up for reelection. “A majority may adopt the rules, in the first place. It is preposterous to assert that they may deny future majorities the right to change them.” footnote14_drcfp0g 14 55 Cong. Rec. 17, 18 (1917); and Gold and Gupta, “The Constitutional Option,” 225–226. It would be unconstitutional, Walsh argued, for a Senate rule to thwart the ability of future Senates to set their own rules. footnote15_2zemx4d 15 55 Cong. Rec. 18 (1917); and Gold and Gupta, “The Constitutional Option,” 225–226. Soon afterward, in 1917, the Senate adopted the cloture rule, allowing a vote to bring debate to a close and end a filibuster. footnote16_q73pa7f 16 55 Cong. Rec. 18 (1917); and Gold and Gupta, “The Constitutional Option,” 225–226. While Walsh’s arguments were never formally considered, the idea that the Senate could rule by majority no doubt had an impact on the adoption of the cloture rule. At that time, the Senate chose not to adopt a strict majority rule, instead requiring two-thirds of the senators present to vote for cloture to end debate. Nonetheless, the adoption of the cloture vote demonstrated the Senate could change its rules to prevent obstructive tactics. footnote17_u7f7bn4 17 Fisk and Chemerinsky, “The Filibuster,” 198. Cloture votes were quite unusual for the next half century, with just 37 between 1917 and 1967. footnote18_x1nfqpx 18 Fisk and Chemerinsky, “The Filibuster,” 198–99.

Starting in the late 1950s, senators began to use the filibuster to thwart passage of civil rights legislation intended to address the deeply entrenched racism that affected so many areas of American life. footnote19_9358gtu 19 Fisk and Chemerinsky, “The Filibuster,” 181–199. Anti–civil rights Dixiecrats obstructed anti-lynching bills; bills prohibiting poll taxes; and bills prohibiting discrimination in employment, housing, and voting. footnote20_rath4uf 20 Fisk and Chemerinsky, “The Filibuster,” 181–199. Most notable were their filibusters of the most significant civil rights bills in United States history: the Civil Rights Acts of 1957 and 1964. Then-Democratic Sen. Strom Thurmond held the floor against the 1957 act without a break for 24 hours and 18 minutes. footnote21_8me0lhh 21 Chafetz, “The Unconstitutionality of the Filibuster.” Even longer, the filibuster against the Civil Rights Act of 1964 went on for 74 days, although it was ultimately unsuccessful. footnote22_a95cql5 22 Fisk and Chemerinsky, “The Filibuster.”

Despite this shameful track record, the Senate did not reform the filibuster again until 1974. By that time, its use had become more widespread as senators sought to delay and derail an array of bills that went beyond civil rights. footnote23_tyeqo7c 23 Chafetz, “The Unconstitutionality of the Filibuster.” Before 1966, there was an average of five filibusters per year. That number grew to 10 between 1971 and 1973, and reached 18 by 1974. footnote24_qupi9qe 24 Julian E. Zelizer, On Capitol Hill: The Struggle to Reform Congress and Its Consequences, 1948–2000 (New York: Cambridge University Press, 2004), 173–175. As part of a post-Watergate demand for reforms, including changes to ethics laws and campaign finance limits, senators adopted a new cloture rule. While not the straight majority vote favored by some reformers, footnote25_crz8wxm 25 Zelizer, On Capitol Hill, 173.  Democratic Sen. Walter Mondale of Minnesota compromised with Republican Sen. James Pearson of Kansas to decrease the necessary vote for cloture from two-thirds to three-fifths of the body — in other words, from 67 votes to 60, the current rule for legislation. footnote26_t3pp5e5 26 Zelizer, On Capitol Hill, 173. The move required a sympathetic vice president (Nelson Rockefeller) and a majority willing to uphold his ruling. The push took a month and eventually prevailed by 56–27. footnote27_ntiiwap 27 David E. Rosenbaum, “Filibuster Rule Reformed in Senate in 56–27 Vote,” New York Times, March 8, 1975, A1.

Undercutting this reform, however, the Senate contemporaneously adopted a rule that gave the filibuster new strength. No longer would a filibuster delay all Senate business. Instead, new Senate procedure would create a dual-tracking system that allowed the body to toggle between different bills so that a bill facing a filibuster was “kept on the back burner” until a vote for cloture could be successful. footnote28_u3qtewc 28 Zelizer, On Capitol Hill, 173. This meant that no one observing the Senate would likely realize that a bill was being filibustered, since no one had to take the floor and stay there. This significantly reduced the public relations disincentive to filibuster and made it practically invisible to the public and the media. The talking filibuster had died; all a senator needed to do was indicate an intention to filibuster in order to move a bill to the end of the queue or “the back burner.”

Another reason the filibuster remained a forceful tool despite a reduction in the number of votes required to invoked cloture is that breaking a filibuster takes time. The Senate moves legislation through a series of motions, each of which can be filibustered. The first motion, the “motion to proceed,” allows the first bite at the apple. By filibustering a motion to proceed — the motion that begins consideration of a measure — an obstructionist can kill a bill early, avoiding all public debate. What’s more, one successful cloture vote does not clear the way for passage. Senators committed to killing a bill can filibuster a given bill at six different points in the legislative process. footnote29_cfg7unl 29 Valerie Heitshusen and Richard S. Beth, Filibusters and Cloture in the Senate, Congressional Research Service, 2017, https://fas.org/sgp/crs/misc/RL30360.pdf. Each cloture petition must sit for two days before a vote, and if cloture is invoked with the 60 votes required, debate on the bill can take up to 30 hours subsequent to the cloture vote. Senate leaders have found that the risk of losing so much time spent waiting for cloture to “ripen” is reason to avoid debating legislation. footnote30_w6n4tiq 30 Walter J. Oleszek, Cloture: Its Effects on Senate Proceedings, Congressional Research Service, 2008, https://fas.org/sgp/crs/misc/98–780.pdf. In fact, most bills are blocked long before they even reach the Senate floor.

In today’s Senate, any bill in practice, if not formally, requires 60 votes to proceed.

Gross Obstruction in the 21st Century

Since the 1970s, use of the filibuster has mushroomed and become the normal practice of the Senate, not the exception. Cloture motions have skyrocketed since 2006, doubling from that year to the next and reaching an all-time high in the current Senate. footnote31_a0r0c6j 31 “Senate Action on Cloture Motions,” accessed August 26, 2020, https://www.senate.gov/legislative/cloture/clotureCounts.htm. There have been as many cloture motions in the last 10 years (959) as there were during the 60-year period from 1947 to 2006 (960).

This development has occurred without it being apparent to observers, as the end of the talking filibuster means a senator can derail legislation simply by indicating that he or she will raise an objection to the motion to proceed, which triggers the need for 60 votes for cloture. Since each cloture vote consumes valuable time in the Senate, the mere threat of an objection is often enough to remove a bill from the queue. As a result, the increasing use of the filibuster has diminished the productivity of the Senate and also shaped its legislative agenda — all at the expense of democracy.

Tracking the use and effect of the filibuster is difficult, as the mere threat of objection to a bill often ends debate before it has even begun. But two sets of data help tell the story: the number of cloture motions filed and the number of bills adopted (as measured both in absolute terms and as a percentage of bills introduced).

Cloture Motions Filed

Since the adoption of the first cloture rule in 1917, there have been 2,221 motions for cloture filed in the Senate. The number of cloture motions filed remained below 8 per year from 1917 to 1970. It spiked in 1971 and 1972 to 24 and floated between 23 and 80 until 2006. That is when use of the filibuster rose dramatically; the number of cloture motions filed doubled in a single year.

The 89-year period between 1917 and 2006 saw 44.5 percent of all cloture motions, with an average of 11 filed per year; the 14-year period since 2006 has seen 55 percent, with an average of 88 per year.

Bills Passed

The productivity of the Senate has steadily declined over time, not only in terms of the total number of bills passed but also in terms of bills passed as a percentage of bills introduced.

In the 84th Congress (1955–1956), the Senate passed 2,410 bills, a high for the chamber. By the 92nd Congress (1971–1972), the number of bills passed dropped below 1,000 to 927. Now, with just 278 bills passed in the last year and a half, the current Senate is on track to be the least productive in history. 

As the number of bills passed by the Senate has declined, so has its overall productivity. Official records only reach back to 1947, when the Senate passed just over 52 percent of bills introduced. By 1971–1972, that number dropped to just over 11 percent. The current Senate has passed just under 4 percent of bills introduced.

Although a cloture motion — the formal process to bring an end to a filibuster — is still necessary for legislation, the Senate did adopt changes to its rules governing nominations to executive branch positions and federal judgeships. In 2013, Democrats altered filibuster rules so that only a simple majority would be required to end debate on nominees to lower courts and administration positions. footnote1_jxka5iw 1 Jeremy W. Peters, “In Landmark Vote, Senate Limits Use of the Filibuster,” New York Times, November 21, 2013, https://www.nytimes.com/2013/11/22/us/politics/reid-sets-in-motion-steps-to-limit-use-of-filibuster.html. In 2017, Republicans extended that change to Supreme Court nominations. footnote2_0fkudy7 2 Matt Flegenheimer, “Senate Republicans Deploy ‘Nuclear Option’ to Clear Path for Gorsuch,” New York Times, April 6, 2017, https://www.nytimes.com/2017/04/06/us/politics/neil-gorsuch-supreme-court-senate.html. Some argue that the Democrats’ decision to abolish supermajority requirements to confirm federal lower court judges set in motion the Republicans’ move to apply that same rule to Supreme Court justices and gave President Trump the ability to fill the courts with his picks in an overly speedy manner. In reality, however, it is hard to believe that Senate Majority Leader Mitch McConnell would not have taken the initiative to abolish the supermajority requirement had Trump’s nominees been filibustered. One need only look at Senate Republicans’ stonewalling of Judge Merrick Garland’s nomination to the Supreme Court in 2016 — and now their support for Judge Amy Coney Barrett’s nomination — to recognize their determination to secure a conservative majority on the Court by any means necessary. More significantly, Trump would have had even more vacancies to fill on the federal bench had the filibuster remained in place; Obama’s nominees had already faced so much obstruction that a large number of vacancies remained at the end of his presidency.

The Senate has the power to exempt certain types of legislation from being subject to cloture and has done so in two areas, one involving specific types of policy reforms and the other involving oversight of the executive branch. One of the more significant examples of the first type involves the budget process. Reconciliation, which requires a simple majority vote, is supposed to resolve differences between the spending targets in 12 appropriations bills and the nonbinding overall budget that is supposed to be passed every year. In practice, it can be a sweeping legislative amalgam, so long as its provisions principally concern spending and taxation rather than substantive legislation. The Congressional Budget and Impoundment Act of 1974 limits floor debate on such measures to 20 hours and restricts options for amendment. The oversight exception includes expedited procedures to disapprove a regulatory or other executive branch decision. Here too, debate time and amendments are usually limited. Similarly, trade agreements governed by “fast track” rules (which require separate enactment) go before the Senate intact and cannot be amended or filibustered. Altogether, according to Brookings Institution scholar Molly Reynolds, the Senate or statute has created 161 exceptions to the filibuster’s supermajority requirement, often narrow, between 1969 and 2014. footnote3_ix8fnel 3 Molly Reynolds, Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate (Washington, DC: Brookings Institution Press, 2017), 9–38.

Throughout its history — during a time when it was rare, and during the current era of constant filibusters — the device has been used above all to block legislation to advance civil rights and democracy reforms.

Legislation Stopped by the Filibuster

• Anti-lynching legislation: During the first half of the 20th century, Southern senators successfully blocked many efforts to pass anti-lynching legislation, including in 1922, 1923, 1924, and 1935. footnote1_ii5hxbm 1 House Judiciary Committee, Emmett Till Antilynching Act (to accompany H.R.35) (H.Rpt.116–267), https://www.congress.gov/116/crpt/hrpt267/CRPT-116hrpt267.pdf. That year, the New York Times wrote, “One could hardly have witnessed the Senate scene this week and failed to notice the determination of the group of ‘willful’ Southerners to prevent action.” Knowing the bill would pass if brought for a vote before the entire Senate, they turned to the liberal rules of the body to block it. “Their one recourse was to filibuster — to talk, to use parliamentary trickery, and to delay in every way allowable under the Senate procedure — until the weight of other matters should push the anti-lynching issue aside.” footnote2_965da7s 2 “Anti-lynching Measure Meets Dogged Hostility,” New York Times, April 27, 1935, https://timesmachine.nytimes.com/timesmachine/1935/04/28/95069848.pdf?pdf_redirect=true&ip=0. In 1938, Southern senators again shelved an anti-lynching bill with a 30-day filibuster. footnote3_yp4dxcl 3 Andy Lanset, “When Anti-lynching Legislation Was Discussed on WNYC in 1938,” WNYC, June 11, 2020, https://www.wnyc.org/story/when-anti-lynching-legislation-was-discussed-wnyc/. Some Senate Republicans continue to filibuster legislation that would designate lynching as a federal hate crime, even now in 2020. footnote4_ms6oq3b 4 House Judiciary Committee, Emmett Till Antilynching Act (to accompany H.R.35) (H.Rpt.116–267).
• Anti–poll tax legislation: Filibusters mounted by Southern senators stopped anti–poll tax legislation in 1942, 1944, and 1946. footnote5_f7oco4k 5 Fisk and Chemerinsky, “The Filibuster,” 199. It took a constitutional amendment adopted in 1964 to finally end poll taxes in federal elections. footnote6_gk5e6db 6 U.S. Const. amend. XXIV.
• Permanent Fair Employment Practices Commission (FEPC) bill: Southern Democrats staged a filibuster in the Senate, killing the bill in 1946. This legislation called for minority rights in the workplace.
• Civil Rights Act of 1966: Senate Minority Leader Everett McKinley Dirksen led the opposition to the bill. With the support of a dozen Republican senators, Dirksen’s filibuster ultimately killed the bill because the Democratic leadership in the Senate failed to rally the two-thirds majority needed to invoke cloture. This legislation would have barred racial discrimination in the renting and sale of all housing. footnote7_mxy7pnj 7 Fisk and Chemerinsky, “The Filibuster,” 199.
• National Popular Vote Amendment: Southern political leaders had long resisted any attempts to replace the Electoral College with the national popular vote. After Reconstruction, southern states benefited disproportionately from the Electoral College, since African Americans were now fully counted for purposes of representation but frequently could not vote (despite the formal protections outlined in the 15th Amendment). The national popular vote would have eliminated that benefit. When an amendment to abolish the Electoral College finally came to the floor of the Senate in September 1970, it was greeted by a filibuster led by Democratic segregationists Sam Ervin and Strom Thurmond (with help from the Nebraska Republican Roman Hruska). footnote8_6j9u09l 8 Alexander Keyssar, “How Has the Electoral College Survived for This Long?” New York Times, August 3, 2020, https://www.nytimes.com/2020/08/03/opinion/electoral-college-racism-white-supremacy.html.

Legislation Delayed by the Filibuster

• Civil Rights Act of 1957: Infamously, Thurmond filibustered against this bill in 1957, footnote9_s26z7wc 9 “Eliminate the Filibuster to Save Democracy,” Indivisible, https://indivisible.org/resource/congress-101-filibuster. though it was eventually passed and signed into law, setting the stage for important civil rights legislation to come. Relying on throat lozenges and dehydration, Thurmond held the floor for 24 hours and 18 minutes. footnote10_hjk1l0z 10 “Filibuster,” History, August 21, 2018, https://www.history.com/topics/us-government/history-of-the-filibuster. After 12 hours, Sen. Paul Douglas of Illinois tried to speed matters along by placing a pitcher of orange juice on Thurmond’s desk, from which Thurmond drank a glass before an aide removed it. footnote11_4mbqm2s 11 “Filibuster,” History, August 21, 2018, https://www.history.com/topics/us-government/history-of-the-filibuster. This legislation created the Civil Rights Section of the Department of Justice and gave the department’s lawyers greater authority to protect the right to vote.
• Civil Rights Act of 1960: Despite the fact that Southern Democrats staged a 125-hour filibuster, Congress passed this legislation on May 6, 1960. This act guaranteed qualified voters the right to register to vote in any state and the right to sue a state official or acting state official who prevents them from voting. footnote12_3mt2hx7 12 Fisk and Chemerinsky, “The Filibuster,” 199.
• Civil Rights Act of 1964: Southern senators launched a filibuster that held up this bill from February through June 1964, taking up 60 Senate working days, including 7 Saturdays. The filibuster ended when the Senate voted 71 to 29 for cloture. This major piece of civil rights legislation prohibited discrimination based on race, color, religion, sex, and national origin (and later sexual orientation) in employment, public accommodations, voter registration, and education. footnote13_211bm3s 13 Fisk and Chemerinsky, “The Filibuster,” 199; and “Civil Rights Filibuster Ended,” United States Senate, https://www.senate.gov/about/powers-procedures/filibusters-cloture/civil-rights-filibuster-ended.htm.

Due to the structure of the Senate, there is a major imbalance in the number of Americans each party represents in the chamber. footnote1_kxqcst3 1 Ari Berman, “GOP Senators Representing a Minority of Americans Are Preventing a Fair Impeachment Trial,” Mother Jones, January 22, 2020, https://www.motherjones.com/politics/2020/01/gop-senators-representing-a-minority-of-americans-are-preventing-a-fair-impeachment-trial/. The equal suffrage of states in the Senate gives disproportionate representation to people living in small states, an imbalance that has grown tremendously since 1787. Senators representing a minority of Americans can achieve majority control of the chamber. Democrats and independents, who control 47 seats in the 116th Congress, represent 168 million Americans. Republicans, who control 53 seats, represent just 153 million Americans — 15 million people fewer. Beyond this numeric imbalance, larger states represent a more diverse coalition of voters.

The filibuster only worsens the undemocratic nature and function of the Senate: even when the democratic will is reflected in which party controls the Senate, the minority party can still halt all legislation it opposes. California, for example, has 40 million inhabitants, while Wyoming, with barely half a million, has the same number of senators. Even more so, however, the filibuster allows minority control to block popular legislation by allowing a scant 41 senators to derail it, even though their constituents may make up far less than 40 percent of Americans. Currently, the 47 senator Democratic minority represents a far larger share of the population than that number would indicate.

Those interested in substantial democracy reforms might find a receptive majority in the Senate. Nonetheless, recent history indicates that they will be unable to pass any meaningful legislation as long as the filibuster remains in place. What is already arguably tyranny of the minority will become tyranny of the tiny minority.

Last year, the House of Representatives passed H.R. 1, the For the People Act of 2019, legislation that would update our democracy for the 21st century and enact key reforms to protect the right of “we the people” to form a more perfect union. Included in this vital legislation are necessary elements of a revitalized democratic system, including automatic voter registration, small donor public financing, redistricting reform, and a commitment to restore the Voting Rights Act. It would make voting easier and more accessible, lower barriers to running for office, and empower voters to choose their representatives rather than let representatives choose their voters. H.R. 1 would be the most sweeping reform of our democracy in a half century. It has secured cosponsorship from every Democratic senator. The major obstacle to passing this important legislation is Senate Majority Leader Mitch McConnell, who has steadfastly refused to bring the bill to the Senate floor for a vote.

Even in the face of a worldwide pandemic that has required substantial changes to election procedures and other reforms to provide all Americans with the ability to register and vote safely and securely, McConnell has stood in the way. The public deserves action. H.R. 1 responds directly to Americans’ hunger for real solutions to ensure that each of us can have a voice in the decisions that govern our lives. Congress must pass this historic set of reforms.

Defenders of the filibuster argue that the mechanism is necessary to retain the Senate’s place as a chamber where majoritarian passions can be tempered by debate and time. They cite an apocryphal quote from George Washington about the purpose of the upper house. Thomas Jefferson had upbraided the general for the creation of the Senate. “Why,” asked Washington, “did you just now pour that coffee into your saucer, before drinking?” “To cool it,” came the reply. “Even so,” rejoined Washington, “we pour our legislation into the senatorial saucer to cool it.” footnote1_b5c757l 1 The quote was attributed to Washington long after his death. See Theo Lippman Jr., “‘David Broder: The Senate Is Now Working …’,” Baltimore Sun, May 11, 1995, https://www.baltimoresun.com/news/bs-xpm-1995–05–11–1995131097-story.html.

By that light, the senatorial filibuster imposes a bulwark against ill-considered or demagogic legislation emanating from the House of Representatives. In 2018, for example, a national ban on abortion after 20 weeks passed the House but failed to gain cloture in the Senate. footnote2_7ajhlmo 2 Jessie Hellmann, “Dems Block 20-Week Abortion Ban,” The Hill, January 29, 2018, https://thehill.com/homenews/senate/371269-dems-block-20-week-abortion-ban. The filibuster has also prevented passage of harmful legislation originating in the Senate. In the 1970s and 1980s, consumer champions such as Howard Metzenbaum (D-OH) patrolled the Senate floor and used the filibuster to single-handedly stop egregious special-interest legislation. And in the mid-2000s, filibustering senators twice defeated a proposed constitutional amendment banning same-sex marriage. footnote3_79d5t3a 3 Laurie Kellman, ”Gay Marriage Ban Falls Short of Majority,” Washington Post, June 7, 2006, https://www.washingtonpost.com/wp-dyn/content/article/2006/06/07/AR2006060700929_pf.html; ”Roll Call Vote 109th Congress — 2nd Session,” accessed October 20, 2020, https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00163; Federal Marriage Amendment, S. Res. 40, 108th Cong. (2004); and Richard Simon, ”Senate Says No to Marriage Amendment,” Los Angeles Times, July 15, 2004, https://www.latimes.com/archives/la-xpm-2004-jul-15-na-gaymarry15-story.html. No doubt, there are other similar examples. But it is far more common for the filibuster to be used to thwart needed legislation, from gun safety laws to environmental measures to voting rights.

In addition, filibuster proponents argue that the supermajority requirement forces lawmakers to compromise and find at least enough common ground to win over the needed handful of senators from the other party. That may have once accurately described the legislative process on most matters. But in the now fully polarized world of the Senate, the filibuster no longer incentivizes consensus. The Senate has come to resemble the House in its relentless partisanship. (Many of its members learned their skills in the highly partisan House of the post–Newt Gingrich era.)

Ultimately, these arguments fail to reckon with what the Senate has become. Washington said the chamber would cool the coffee, not throw it on the floor. The filibuster today does not improve, or slow, or cushion needed laws. It simply stops them.

Beyond that, there are other protections for political minorities embedded in the Senate’s rules and structures: equal representation for states large and small; six-year terms; only one-third of members facing voters at any one time. In addition, there are myriad ways to give the minority greater opportunity to participate without enabling obstruction. The most effective mechanism would be limitations on “filling the tree,” the main tactic used to block the minority from offering amendments. Such a reform would go much further to enable the minority to be heard than the filibuster, which has been used more as a tool to stifle debate than to enhance it.

None are equivalent to a de facto supermajority vote requirement, with its harmful impacts.

There are several ways to address the current obstruction system:

• Change the rules: The most direct approach would be to amend Senate Rule XXII. footnote1_5rom14a 1 “Rule XXII: Precedence of Motions,” Rules & Administration of the Senate, accessed October 20, 2020, https://www.rules.senate.gov/rules-of-the-senate. The Senate, unlike the House, is deemed a continuing body. Since two-thirds of its members carry over from one Congress to the next, its rules do as well. Senate rules can most easily be changed on the first legislative day, typically in early January. However, a two-thirds supermajority (66 votes) would be required.
• The “nuclear option”: The majority leader can employ the so-called nuclear option, using a nondebatable motion to bring a bill for a vote and then raising a point of order that cloture can be achieved with a majority vote. The presiding officer would then rule against the point of order, but that could be overturned by a simple majority vote, the effect being that filibusters of legislation would no longer be the rule. Under this approach, all motions and votes could then pass with a simple majority. This is how the Senate ended the 60-vote cloture requirement for judicial nominations.

Over the years, lawmakers and political thinkers have proposed a number of reforms that stop short of eliminating the filibuster entirely. These address some of the most significant challenges posed by the current abuse of the system and might lead to a better-functioning Senate. But they still would let a minority thwart important legislation, and some might in fact exacerbate the problem by increasing the amount of time required to bring debate to a close. These reforms fall into three main categories:

• Shifting the burden to the minority: Current Senate rules require 60 votes to invoke cloture and end debate on a bill. A well-known proposal for reform would instead require a minority of the Senate to sustain debate with 40 votes. This would mark a marginal improvement over the status quo: opponents of legislation would have to do the challenging work of rustling up votes, a burden that now falls on the majority. However, a disciplined minority party (such as the one forged by McConnell) would frequently find this easy to do.
• Lowering the threshold to invoke cloture: Another proposal would reduce the number of votes required to end debate. One option in this vein is to lower the cloture threshold to a number less than 60 but more than a simple majority. Some have proposed that the threshold be equal to the number of senators in the majority caucus. footnote1_fweus2n 1 Mark Strand and Tim Lang, “The U.S. Senate Filibuster: Options for Reform,” Congressional Institute, September 9, 2017, https://www.congressionalinstitute.org/2017/09/25/the-u-s-senate-filibuster-options-for-reform/. Others have suggested it be 55 votes, the average size of the majority in the Senate since it was expanded to 100 seats in 1959. footnote2_cuii4jx 2 The average is the the statistical mode based on calculations of data from “Party Division,” United States Senate, accessed October 20, 2020, https://www.senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm.
  A more substantive change to the cloture threshold would progressively lower the number of required votes each time a motion to end debates fails. In 1995, Sens. Tom Harkin (D-IA) and Joe Lieberman (D-CT) proposed setting an initial cloture threshold of 60 votes, to be reduced by three votes after every failure until reaching the number required for a simple majority. footnote3_ds7zu6l 3 Karen Hosler, “Senators Vote 79–19 to Maintain Filibuster,” Baltimore Sun, January 6, 1995, https://www.baltimoresun.com/news/bs-xpm-1995–01–06–1995006015-story.html. Harkin put forth the same proposal in a Senate resolution in 2013. footnote4_eo72jip 4 159 Cong. Rec. S233,297 (2013), https://www.congress.gov/113/crec/2013/01/24/CREC-2013–01–24.pdf.
  Opponents could then slow but not stop a measure backed by a majority. A majority party would have to choose which bills merited the lengthy floor time required under this approach. Perversely, the less consequential (and thus controversial) a measure is, the easier it would be to block. A progressive lowering of the cloture threshold might have the unintended consequence of making a filibuster more difficult to overcome. It could significantly extend the timeframe of the cloture process, making it that much more of an obstructive tool.
• Requiring senators to hold the floor: Today, a senator can filibuster by simply announcing the intention to do so, affecting outcomes as surely as if debate had dragged on. Some have urged that senators be required to actually filibuster — to speak and remain standing for the duration on the Senate floor. (This has been called the “Mr. Smith Goes to Washington plan.”) footnote5_f8zge00 5 Diana Lee and Mimi Digby Marziani, “Filibuster Reform’s Small Steps,” Politico, January 27, 2011, https://www.politico.com/story/2011/01/filibuster-reforms-small-steps-048280. As mentioned earlier, when the Senate lowered the cloture threshold from 67 to 60 votes in 1975, it also adopted a rule allowing the body to consider multiple bills simultaneously. This eliminated the requirement that a senator hold the floor in protest of a bill. Instead, the mere threat of a filibuster became sufficient to stop a bill. This proposal, if implemented, would raise the cost of filibustering. Lawmakers would only do so if they were willing to clog the Senate calendar and drag out debate. Presumably, this would diminish the number of measures that required cloture. It would expose more directly to public view the fight for the underlying legislation and the nature of the obstruction. It would also require opponents to tightly coordinate with each other, for even a small gap in the speaking schedule could let a bill’s proponents end debate. But a determined minority could still block legislation that garnered strong majority support.

Partial steps to reform the filibuster might improve Senate operations or raise the cost of obstruction. But they would not address the principle flaw of the filibuster, which is that it denies the majority the ability to address national problems free of obstruction. These proposals still require legislation to overcome a supermajority requirement in a body that is already undemocratic.

With so much riding on the ability of Congress to strengthen our democracy, the Senate cannot be allowed to stand in the way. In the coming months and years, we must anchor our electoral practices and anticorruption tools more firmly in law. We must ensure voting rights for all Americans, along with a system of representative government that is responsive to people, not just financial interests. For any of these initiatives to stand a chance of passing, the Senate must abolish the filibuster once and for all.

The author is incredibly grateful to the numerous Brennan Center colleagues who provided instrumental support throughout the project. Alan Beard provided critical research, writing, and editing assistance. Michael Waldman, John Kowal, Lisa Benenson, Jeanine Chirlin, Wendy Weiser, Alicia Bannon, Spencer Boyer, Kirstin Dunham, Dan Weiner, Jeanne Park, Alden Wallace, and Zach Laub provided editorial input and helped shape the project. Emily Eagleton, Clio Morrison, and Spencer LaFata provided essential research assistance.