Next week the Senate is poised to debate critical democracy reform legislation, the Freedom to Vote: John R. Lewis Act, which would set national baseline standards to protect voting access, end partisan gerrymandering, safeguard elections from sabotage, restore the critical protections of the Voting Rights Act of 1965, and much more. The bill has majority support in the Senate. The only thing that stands in its way is the Senate filibuster.
In this crucial moment, it is important to consider the filibuster’s history. Far from being an immovable impediment, the filibuster has been modified hundreds of times to ensure that critical Senate business can move forward — including just last month to raise the debt ceiling. This history demonstrates that there is ample precedent for future changes to allow the Senate to function as the Framers intended, allowing for substantial debate, deliberation, and ultimately passage of essential legislation to secure American democracy.
In the Beginning: The Public Business Must Go Forward
- Confronted with the failure of supermajority rule under the Articles of Confederation, the Framers of the United States Constitution intentionally created a system based on majority rule. The Founders designed the legislative branch with the idea that simple majorities would prevail.
- In Federalist No. 22, Alexander Hamilton called minority rule a “poison.” He wrote:
“The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. . . . It is often . . . kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.”
- The Constitution empowered each chamber of Congress to set its own rules. In the Senate’s early days, its norms and customs discouraged endless debate.
- While the Senate’s first rules in 1789 included a “Previous Question” motion that a majority could theoretically use to end debate, in practice it was seldom needed. When Vice President Aaron Burr recommended scrapping the rule as a housekeeping matter in 1805, the Senate obliged.
The 1800s Through the Civil Rights Era: Experiments in Obstruction
- Without a formal rule on the books to end debate by majority vote, it became possible for Senate proceedings to drag on indefinitely.
- In 1834, the Senate censured President Andrew Jackson. In 1837, Jackson’s allies muscled through the Senate a resolution expunging his censure, but not until opposing senators mounted a lengthy floor debate — the Senate’s first “filibuster.”
- While myriad delay tactics flourished on the floor, before the late 1800s, nearly every measure that senators filibustered still eventually passed the chamber.
- At the turn of the century, pressure built as endless debates began to block the Senate from actually voting and passing important measures. After senators successfully stymied a proposal from President Woodrow Wilson during World War I, the Senate adopted a new rule enabling formal limits on floor debate. The 1917 “cloture” rule permitted a two-third supermajority to vote to close debate on a given matter.
- From Reconstruction through the passage of landmark civil rights legislation in the 1960s, a powerful bloc of senators relied heavily on filibuster tactics to obstruct progress on racial justice for Black Americans and others.
- Sen. Strom Thurmond infamously held the floor for over 24 hours before the Senate handily passed the Civil Rights Act of 1957. The filibuster against the Civil Rights Act of 1964 went on for 74 days before a Senate supermajority ultimately voted to end debate and easily passed the bill.
- Most other matters that passed the Senate did so without requiring a supermajority vote. Needing to file for cloture in order to end debate and secure a matter’s passage was still relatively rare.
The Modern Era: Gridlock Takes Over
- Starting in the 1970s, the practice of requiring a supermajority in order to end debate skyrocketed. What was once the exception became the new norm.
- In response to calls for reform, the Senate in 1975 lowered the supermajority threshold required to end debate from two-thirds (67 votes) to three-fifths (60 votes). Then-Sen. Biden voted for this reform. In 1976, 1979, and 1986, he also supported other successful reforms designed to expedite floor debate and deliberation.
- Sen. Robert Byrd also played a key role in these reforms. As Majority Leader in 1977, he spearheaded another effort to curb delays taking place in the period after a supermajority had already voted to end debate. Byrd also helped design the budget reconciliation process, creating a pathway for major legislation to pass the Senate by simple majority.
- Over this same timeframe, the Senate created a system allowing a bill facing a filibuster to be placed on the back burner so that other Senate business could still continue. Under this dual-tracking setup, filibusters proliferated without senators being required to hold the floor.
- By the 2000s, needing a supermajority to end debate transformed into a de facto requirement. In the 10-year period between 2011 and 2020, there were more cloture motions filed (1,024) than in the 60 years from 1947 to 2006 (960).
Where We Are Today: Restoring the Senate’s Ability to Debate and Decide
- Over 350 historians and other scholars note that the Senate “is now the world’s only legislative body with an effective supermajority requirement for common legislation.” This has “impaired legislative policymaking, aggrandized executive power, worsened partisan polarization, and decreased policymaking continuity.” As they indicated, “we share a common concern that today’s filibuster is, on balance, weakening Congress — while creating the very supermajority requirement the Founders clearly sought to avoid. We fear it is also weakening democracy….”
- The modern-day filibuster prevents real deliberation by essentially requiring a supermajority for the Senate to begin even debating legislation. As senators don’t have to hold the floor to block either debate or a vote, obstruction is a frequent occurrence. The result is that the Senate conducts few real debates and little public deliberation.
- The Senate was originally designed as a majority rule body. Between 1969 and 2014, at least 161 changes to the filibuster’s supermajority requirement were created. Many of these changes created a way to pass legislation through a simple majority, privileged vehicle. The privileged matter moves to the top of Senate business, allows for a set time period for debate, and can then pass by majority vote.
- The Senate will always be unique. Senators are elected to represent entire states, making them accountable to broad constituencies, and they serve for six-year terms, making them less susceptible to cyclical fads. The Senate will always be a place of deliberation, consensus building, even delay — a chamber marked by fierce and lengthy debate. But sooner or later, there must be a path for the nation’s business to get done.
Related Resources from the Brennan Center
- Fixing the Senate Filibuster by Mira Ortegon and Colleen Olson (August 2021)
- The Filibuster, Explained by Tim Lau (April 2021)
- The Case Against the Filibuster by Caroline Fredrickson (October 2020)
- Why Voting Rights Isn’t (Usually) Bipartisan by Michael Waldman (January 2022)
- Breaking Down the Freedom to Vote Act by Wendy R. Weiser, Daniel I. Weiner, and Emil Mella Pablo (September 2021)