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Fact Sheet

Restoring the Senate: Key Facts as the Senate Considers Rules Reform

History demonstrates that there is ample precedent to changing the rules around the filibuster to allow the chamber to function as the Founders intended.

Last Updated: January 19, 2022
Published: January 14, 2022
U.S. Capitol
Michael Godek

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 19761979, 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