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The Case Against the Filibuster

Summary: The procedural maneuver, long used by Senate minorities to block civil rights legislation, is now poised to stop democracy reforms supported by broad majorities. If the Senate is to be responsive to the popular will, the filibuster must go.

Published: October 30, 2020
Senate Gavel
Photo Credit: U.S. Senate/Public Domain

Introduction

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_h1h7ma6 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_q16l78j 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_im92hz5 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.

End Notes

The Brennan Center and Filibuster Reform

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_7ngeo81 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_bqs9mhn 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_z9mhljj 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_hmmhzd8 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.

End Notes

The Need to Abolish the Filibuster

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.

The Filibuster’s History

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_qdm3108 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_uxgrs5y 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_u8f8thz 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_5dts­ja5 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_1xqawed 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_mti5bie 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_ty3g89w 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_qf74j3f 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_2njh31l 9 “The Senate’s New Rule,” Wash­ing­ton Post, Decem­ber 28, 1890. Edmund­s’s proposal did not pass. foot­note10_jfmxuob 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_bjc31h9 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_pdu9mz5 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_37g74s9 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_183qjsk 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_edef377 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_fzq6hz2 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_lld4k34 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_zoqm5n7 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_by3h­m0q 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_yfi1t39 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_9ost98o 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_p3cmx6n 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_cnjk­wjk 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_xbxm97p 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_wg9jagd 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_73ir­axi 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_lryqop4 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_mxhr­qal 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_fbxt­pef 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_23nyyew 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_uy7yksw 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.

End Notes

The Senate’s Declining Productivity

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.

Recent Changes in Senate Rules

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_1b9gcdm 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_oz82tds 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_geb410c 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.

End Notes

The Filibuster’s Thwarting of Key Democracy Reforms

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_12p03wl 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_2u23s1q 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_86p1xei 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_27i0f8s 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_805m55e 5 Fisk and Chemer­insky, “The Fili­buster,” 199. It took a consti­tu­tional amend­ment adop­ted in 1964 to finally end poll taxes in federal elec­tions. foot­note6_a1fp1n0 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_0noilm3 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_ittpxql 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_sk6hjcq 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_cgxw39t 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_uwyy8tz 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_qj425f9 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_s5f48yj 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.

End Notes

An Antidemocratic Tool in an Undemocratic Body

Due to the struc­ture of the Senate, there is a major imbal­ance in the number of Amer­ic­ans each party repres­ents in the cham­ber. foot­note1_q0l4cha 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.

End Notes

What’s at Stake Now

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.

Is Reform Risky?

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_b22up2g 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_th6gxjh 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_ihucoyj 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.

End Notes

How Can the Filibuster Be Ended?

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_cp391js 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.

End Notes

Other Proposed Reforms

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_n0s4xz4 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_tl4y44i 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_e0wta02 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_i2th­p1f 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_s541pgh 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.

End Notes

Conclusion

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.

Acknowledgments

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.