The filibuster in the U.S. Senate has become an increasingly prominent feature of American politics. Once a rarely used parliamentary tactic reserved for the most contentious issues, it is now a routine hurdle that often brings Senate business to a standstill. This procedural move effectively requires a supermajority of 60 votes to pass most legislation, significantly impacting the Senate’s ability to address critical issues ranging from healthcare and climate change to gun control. Beyond the current political gridlock, the filibuster carries a deeply troubling historical legacy, having been frequently employed to obstruct civil rights legislation aimed at dismantling racial discrimination.
As calls for strengthening democratic processes intensify, the demand to eliminate or reform the filibuster has grown louder. During his eulogy for civil rights icon Congressman John Lewis in July 2020, former President Barack Obama powerfully labeled the filibuster a “Jim Crow relic,” advocating for its removal if it continues to impede crucial voting rights reforms. Others point out existing exemptions to the filibuster for certain types of legislation and argue persuasively for similar exemptions to safeguard voting rights.
The stakes were sharply highlighted in March 2021 with the House passage and Senate introduction of the For the People Act, a sweeping democracy reform bill whose fate hinges on the filibuster. Whether through outright elimination or meaningful reform, many argue that the filibuster must not be allowed to obstruct the progress of American democracy and the fundamental rights of all eligible voters.
Decoding the Filibuster: How it Works in the Senate
To understand the filibuster, it’s essential to first grasp the standard legislative process in the Senate. When a senator proposes a new bill, it is first reviewed by a relevant committee for discussion, hearings, and potential amendments. If a majority of the committee members vote in favor, the bill then proceeds to the Senate floor for debate.
Ordinarily, once a bill reaches the Senate floor for a vote, it requires a simple majority of 51 votes to pass, assuming the debate has concluded. However, this is where the filibuster comes into play. Before a bill can be voted on, a process called “cloture” must be invoked to end the debate. Crucially, invoking cloture requires 60 votes, not just a simple majority. This 60-vote threshold is why the filibuster effectively sets a supermajority requirement for most legislative action in the Senate. Without 60 votes to end debate, a determined minority can prevent a bill from even coming to a final vote.
A Brief History: Tracing the Filibuster’s Origins and Evolution
Interestingly, the filibuster as we know it today was not initially intended. Under the Senate’s original rules, ending debate simply required a motion passed by a simple majority. However, in 1806, Vice President Aaron Burr, in an effort to streamline Senate rules he deemed redundant, suggested removing a particular rule related to ending debate. The Senate adopted this change, inadvertently creating the potential for unlimited debate.
This seemingly minor rule change unintentionally granted senators the power to engage in unlimited debate. This meant that, without a mechanism to cut off debate with a simple majority, a minority of senators could indefinitely delay a vote on a bill, even if it had majority support. This tactic of prolonged debate to obstruct legislative action is what evolved into the filibuster.
It wasn’t until 1917 that the Senate took action to address this unintended consequence. In response to increasing frustration with obstructionist tactics, the Senate adopted Rule XXII, also known as the cloture rule. This rule established a process to break a filibuster, initially requiring a two-thirds majority vote to invoke cloture and end debate. Over time, this threshold was lowered. In 1975, the Senate further amended Rule XXII, reducing the cloture requirement to 60 votes. This 60-vote threshold has since become the practical minimum needed to pass most legislation in the Senate.
Despite the general 60-vote rule, there are notable exceptions to the filibuster. One significant recent example concerns presidential appointments. In 2013, Democrats in the Senate changed the rules to allow for the confirmation of executive branch positions (including cabinet secretaries) and non–Supreme Court judicial nominees with a simple majority vote. Four years later, Senate Republicans expanded this exception to include Supreme Court appointments. These changes were enacted using the “nuclear option,” a procedural maneuver to override existing Senate rules and overcome minority obstruction. The “nuclear option” is essentially a controversial method of changing Senate rules with a simple majority, despite the usual requirement for a supermajority to change Senate rules.
Furthermore, the Senate has historically exempted certain types of legislation from the cloture rule altogether. For instance, the annual budget reconciliation process, a tool used by Congress to expedite budget-related legislation, requires only a simple majority vote and is not subject to filibuster. Similarly, trade agreements negotiated under fast-track authority are also protected from filibusters. Other exemptions exist for measures related to military base closures and arms sales. According to an analysis by Molly Reynolds at the Brookings Institution, a total of 161 exceptions to the filibuster’s supermajority requirement were created between 1969 and 2014, indicating a long history of carving out areas where the filibuster does not apply.
Talking vs. Silent Filibusters: Evolution of the Tactic
Historically, filibusters were characterized by dramatic, lengthy speeches. In a “talking filibuster,” a senator would attempt to prevent a vote by continuously speaking on the Senate floor, refusing to yield the floor to anyone else. These speeches could last for hours, sometimes even overnight. The classic image of a senator holding the floor for hours to block a vote was famously depicted in the 1939 film Mr. Smith Goes to Washington. The longest recorded talking filibuster was delivered by Senator Strom Thurmond of South Carolina in 1957, lasting over 24 hours in opposition to the Civil Rights Act of 1957.
However, since the early 1970s, the Senate has transitioned to what is known as the “silent filibuster.” In the modern Senate, a senator or group of senators no longer needs to hold the floor with a marathon speech to initiate a filibuster. Instead, if at least 41 senators indicate their intention to oppose cloture (the motion to end debate), it is generally understood that a bill faces a filibuster. In practice, this means that the Senate majority leader often will not even bring a bill to a vote if they know there are not 60 votes to overcome a potential filibuster, making the threat of a filibuster as effective as the act itself.
The Filibuster’s Troubling History: Blocking Civil Rights Progress
Critics of the filibuster frequently highlight its deeply problematic history, particularly its use to obstruct civil rights advancements. Even in the 19th century, senators who supported slavery, such as John C. Calhoun of South Carolina, employed obstructionist tactics that resembled the filibuster to protect the interests of Southern landowners who relied on enslaved labor.
The formalization of the modern filibuster with the adoption of Rule XXII in 1917 unfortunately coincided with the Jim Crow era, a period of intense racial segregation and discrimination in the United States. During this time, the filibuster became a primary tool to block civil rights legislation. In fact, a study by political scientists Sarah Binder and Steven Smith found that of the 30 measures filibustered between 1917 and 1994, half were related to civil rights. Key civil rights measures blocked by filibusters include anti-lynching bills in 1922 and 1935; the Civil Rights Act of 1957 (initially weakened due to filibuster threats); and legislation aimed at prohibiting poll taxes and outlawing discrimination in employment, housing, and voting.
The Escalating Use of the Filibuster: A Shift Over Time
While initially intended for rare and highly controversial situations, the use of the filibuster has dramatically increased in recent decades. This surge in filibuster usage is often attributed to the growing political polarization in Washington. Since 1917, there have been over 2,000 filibusters in the Senate. Alarmingly, approximately half of these have occurred in just the last 12 years, demonstrating a significant escalation in its use. Critics argue that this overuse of the filibuster has effectively paralyzed the Senate, hindering its ability to function effectively and often trapping the chamber in procedural gridlock instead of engaging in meaningful debate and lawmaking.
The Consequences of Filibuster Proliferation: Impact on Governance
The persistent gridlock caused by the increased use of the filibuster has led to the growing reliance on alternative legislative tactics, such as budget reconciliation rules, to circumvent procedural obstacles. Budget reconciliation, originally designed to expedite the budget process, allows certain budget-related bills to pass with only 51 votes, bypassing the 60-vote filibuster threshold. However, budget reconciliation has limitations in scope and was not intended to handle the broad range of complex legislation for which it is now being used.
Critics contend that the modern filibuster, with its frequent use, fundamentally undermines the Senate’s role as a governing body and its reputation as a forum for consensus-building. The mere threat of a filibuster can stifle debate and diminish incentives for bipartisan compromise, as reaching 60 votes becomes an increasingly difficult and often insurmountable hurdle.
The overuse of the filibuster also exacerbates existing representational imbalances within the Senate. The Senate’s structure, granting equal representation to each state regardless of population size, inherently favors smaller states. While this was a deliberate design of the founders, the population disparity between the largest and smallest states has drastically widened since the nation’s founding. Currently, the 26 least populous states are home to only 17 percent of the U.S. population. This means that a relatively small group of senators representing a minority of the population can utilize the filibuster to block legislation that enjoys broad public support nationwide.
Furthermore, the filibuster’s impact extends to the balance of power between the branches of government. The legislative stagnation in Congress, significantly fueled by the filibuster, has arguably pushed presidents to expand their use of executive power. This expansion of executive authority can then go unchecked due to Congress’s diminished capacity to act, further disrupting the intended checks and balances.
Some legal scholars even question the constitutionality of the filibuster, pointing to Article I, Section 5 of the U.S. Constitution, which states that “a majority of each House shall constitute a quorum to do business.” They argue that the 60-vote requirement for many Senate actions contradicts this constitutional principle of majority rule.
Paths to Reform: Options for the Filibuster’s Future
As Senate gridlock persists and intensifies, calls for filibuster reform, and even outright elimination, are growing more insistent. This is especially true given the filibuster’s historical role in perpetuating Jim Crow laws and obstructing civil rights and voting rights legislation. Changing the Senate rules, particularly Rule XXII, would be the most direct way to eliminate or significantly reform the filibuster. However, changing Senate rules typically requires a two-thirds supermajority vote, presenting a significant hurdle in itself.
The “nuclear option,” as described earlier, represents another potential avenue for filibuster reform or elimination. Using this approach, the Senate majority leader could employ a non-debatable motion to bring a bill to a vote and then raise a point of order arguing that cloture can be invoked with a simple majority for that particular issue. This controversial tactic, while procedurally complex, has been used in the past to create exceptions to the filibuster.
Beyond complete elimination, some advocates propose targeted exemptions to the filibuster, particularly for crucial issues like voting rights. Stacey Abrams, a prominent voting rights advocate and former minority leader in the Georgia House of Representatives, has urged senators to lift the filibuster for election reform legislation such as the For the People Act. She argues that “Protection of democracy is so fundamental that it should be exempt from the filibuster rules,” drawing a parallel to existing exemptions for judicial and cabinet appointments and other specific legislative areas. The debate over the filibuster and its future in the Senate remains a critical and evolving discussion in American politics, with significant implications for the functioning of government and the advancement of key policy issues.
