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The Filibuster, Explained

The procedure, whose use has increased dramatically in recent decades, has troubling implications for democracy.

Published: April 26, 2021

Tradi­tion­ally, the Senate fili­buster was reserved for only the most contro­ver­sial issues, but its use has escal­ated in recent years, often slow­ing busi­ness in the cham­ber to a halt. Some lawmakers acknow­ledge that the fili­buster, which has effect­ively set a 60-vote super­ma­jor­ity require­ment for passing legis­la­tion in the Senate, could doom many of the propos­als they have cham­pioned, includ­ing mean­ing­ful reforms on issues ranging from health care to climate change to gun control. Behind this dysfunc­tion, the fili­buster also has a troub­ling legacy: it has often been used to block civil rights legis­la­tion inten­ded to combat racial discrim­in­a­tion. 

As advoc­ates push for pro-demo­cracy legis­la­tion, calls for elim­in­at­ing the fili­buster have grown louder. In his remarks at the funeral of civil rights hero and congress­man John Lewis in July 2020, former Pres­id­ent Barack Obama called the fili­buster a “Jim Crow relic,” arguing that the proced­ure should be elim­in­ated if it is used to block voting reforms. Others note that certain types of legis­la­tion are already exempt from the fili­buster’s super­ma­jor­ity require­ment and argue that a similar exemp­tion should be made for voting rights.

The stakes were raised in March 2021, when the For the People Act — a compre­hens­ive demo­cracy reform bill — was passed by the House of Repres­ent­at­ives and intro­duced in the Senate, where the fili­buster may determ­ine its fate. Whether through elim­in­a­tion or reform, the fili­buster cannot be allowed to impede the expan­sion of Amer­ican demo­cracy or the rights of all eligible voters.

What is a fili­buster? 

In the Senate, a fili­buster is an attempt to delay or block a vote on a piece of legis­la­tion or a confirm­a­tion. To under­stand the fili­buster, it’s neces­sary first to consider how the Senate passes a bill. When a senator or a group of senat­ors intro­duces a new bill, it goes to the appro­pri­ate commit­tee for discus­sion, hear­ings, and amend­ments. If a major­ity of that commit­tee votes in favor, the bill moves to the Senate floor for debate.

Once a bill gets to a vote on the Senate floor, it requires a simple major­ity of 51 votes to pass after debate has ended. But there’s a catch: before it can get to a vote, it actu­ally takes 60 votes to cut off debate, which is why a 60-vote super­ma­jor­ity is now considered the de facto minimum for passing legis­la­tion in the Senate.

What’s the history of the fili­buster and its super­ma­jor­ity require­ment?

Under original Senate rules, cutting off debate required a motion that passed with a simple major­ity. But in 1806, after Vice Pres­id­ent Aaron Burr argued that the rule was redund­ant, the Senate stopped using the motion.

This change inad­vert­ently gave senat­ors the right to unlim­ited debate, mean­ing that they could indef­in­itely delay a bill without super­ma­jor­ity support from ever getting to a vote. This tactic is what we now know as a fili­buster.

In 1917, the Senate passed Rule XXII, or the cloture rule, which made it possible to break a fili­buster with a two-thirds major­ity. In 1975, the Senate reduced the require­ment to 60 votes, which has effect­ively become the minimum needed to pass a law.

There are, however, excep­tions to the fili­buster rule. Perhaps the most notable recent example pertains to pres­id­en­tial appoint­ments. In 2013, Demo­crats changed the Senate rules to enable the confirm­a­tion of exec­ut­ive branch posi­tions — includ­ing the cabinet — and of non–Su­preme Court judi­cial nomin­ees with a simple major­ity. Four years later, Senate Repub­lic­ans expan­ded the change to include Supreme Court appoint­ments. Both changes invoked what is known as the nuclear option, or an over­ride of a rule to over­come obstruc­tion by the minor­ity.

At times, the Senate has also exemp­ted certain types of legis­la­tion from the cloture rule. For example, Congress’s annual budget recon­cili­ation process requires only a simple major­ity vote and cannot be fili­bustered. Like­wise, trade agree­ments that are nego­ti­ated using fast-track rules cannot be fili­bustered. Other exemp­tions apply to meas­ures that involve, for example, milit­ary base clos­ures or arms sales. In total, 161 excep­tions to the fili­buster’s super­ma­jor­ity require­ment have been created between 1969 and 2014, accord­ing to an analysis by the Brook­ings Insti­tu­tion’s Molly Reyn­olds. 

What’s the differ­ence between “talk­ing” and “silent” fili­busters?

Fili­busters tradi­tion­ally involved long speeches in which a senator attemp­ted to block a vote from proceed­ing by refus­ing to yield the floor. To stage such a “talk­ing” fili­buster, a senator would hold the floor by stand­ing and talk­ing for as long as they could, some­times overnight. This was popular­ized in the 1939 film Mr. Smith Goes to Wash­ing­ton. The longest fili­buster ever recor­ded, by South Caro­lina Sen. Strom Thur­mond in oppos­i­tion to the Civil Rights Act of 1957, lasted for more than 24 hours.

But since the early 1970s, senat­ors have been able to use a “silent” fili­buster. Anytime a group of 41 or more senat­ors simply threatens a fili­buster, the Senate major­ity leader can refuse to call a vote.

How has the fili­buster been used to block civil rights progress?

Crit­ics of the fili­buster have poin­ted to its racist history — includ­ing its early uses in the 19th century by pro-slavery senat­ors includ­ing John C. Calhoun of South Caro­lina, who used it to protect the interests of South­ern white landown­ers who depended on slave labor.

The enact­ment of Rule XXII in 1917 gave rise to the modern fili­buster, which has also been used to block civil rights legis­la­tion, espe­cially during the Jim Crow era. In fact, this was one of the primary uses of the fili­buster during the 20th century. Accord­ing to a study conduc­ted by polit­ical scient­ists Sarah Binder and Steven Smith, of the 30 meas­ures that were derailed by the fili­buster between 1917 and 1994, exactly half of them involved civil rights. Fili­busters blocked meas­ures such as anti-lynch­ing bills proposed in 1922 and 1935; the Civil Rights Act of 1957; and legis­la­tion that would have prohib­ited poll taxes and outlawed discrim­in­a­tion in employ­ment, hous­ing, and voting.

How has the fili­buster changed over time?

The use of the fili­buster, once reserved for only the most contro­ver­sial issues, has increased dramat­ic­ally in recent years along­side grow­ing polar­iz­a­tion in Wash­ing­ton. There have been more than 2,000 fili­busters since 1917; about half have been in just the last 12 years. Crit­ics argue that this increased use has slowed busi­ness in the Senate to a halt, often entangling the cham­ber in proced­ural maneuv­er­ing instead of substant­ive debate and, ulti­mately, lawmak­ing.

What has been the impact of increas­ing fili­buster use?

The ongo­ing dead­lock on certain issues has led to the use of the budget recon­cili­ation rules to bypass the cham­ber’s proced­ural hurdles. Designed to exped­ite Congress’s budget process, recon­cili­ation bills can pass with only 51 votes, compared to the de facto 60-vote require­ment imposed by the fili­buster. However, the budget recon­cili­ation process is limited in scope, and analysts argue that it was not designed to handle the sweep­ing scale of legis­la­tion that marks its current use.

Crit­ics of the modern fili­buster have argued that the maneuver under­mines the Senate as a govern­ing body and its repu­ta­tion as a consensus-build­ing cham­ber. The mere threat of a fili­buster silences debate and removes incent­ives to work toward comprom­ise.

Over­use of the fili­buster magni­fies prob­lems of repres­ent­a­tion endemic to the Senate, where small and large states alike are each repres­en­ted by two senat­ors. However, the popu­la­tion dispar­ity between the largest and smal­lest states has increased signi­fic­antly since the found­ing. Today, the 26 least popu­lous states are home to just 17 percent of the U.S popu­la­tion. This means that a group of senat­ors repres­ent­ing a small minor­ity of the coun­try can use the fili­buster to prevent the passage of bills with broad public support.

Fili­buster abuse also threatens checks and balances between the branches of govern­ment. The relat­ive stag­nancy of Congress — which is in large part due to the fili­buster — has pushed pres­id­ents to increase their use of exec­ut­ive power, which in turn often goes unchecked because of Congress’s inab­il­ity to act.

Some legal schol­ars argue that the fili­buster may not even be consti­tu­tional, citing Article I, Section 5, which states that “a major­ity of each House shall consti­tute a quorum to do busi­ness.” 

What options are avail­able for fili­buster reform?  

As Senate grid­lock persists, calls for elim­in­at­ing the fili­buster alto­gether have grown louder, espe­cially given its histor­ical compli­city in perpetu­at­ing Jim Crow laws and thwart­ing civil rights legis­la­tion and voting reforms. Chan­ging the Senate rules — partic­u­larly, Rule XXII — would be the most straight­for­ward way to elim­in­ate the fili­buster, although such a change would require a two-thirds super­ma­jor­ity. The nuclear option is another way to elim­in­ate the fili­buster. Under this method, the Senate major­ity leader would use a nondebat­able motion to bring a bill for a vote and then raise a point of order that cloture can be invoked with a simple major­ity.

Some advoc­ates argue that voting rights legis­la­tion warrants an exemp­tion from the fili­buster, even if the proced­ure is not elim­in­ated alto­gether. Stacey Abrams, the voting rights cham­pion and former minor­ity leader in the Geor­gia House of Repres­ent­at­ives, has called on senat­ors to lift the fili­buster for elec­tion reform legis­la­tion such as the For the People Act. “Protec­tion of demo­cracy is so funda­mental that it should be exempt from the fili­buster rules,” she said, noting that the fili­buster has already been suspen­ded for judi­cial and cabinet appoint­ments, among other meas­ures.