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A Short History of the Filibuster

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A Short History of the Filibuster

Accidentally created and cynically exploited, the tactic nonetheless suits the Senate’s intended character. April 16, 2021
Politics and law

For a political tactic that sits at the center of a swirling controversy, the filibuster has humble origins. The Founding Fathers gave each house of Congress the power to set its own rules, but they clearly meant for most matters to be decided by majority vote, and they specified the exceptions: proposing amendments to the Constitution, overriding a presidential veto, expelling members of Congress, ratifying treaties, and convicting on an article of impeachment require a two-thirds vote in the relevant chamber. In the early days of the republic, Senate rules allowed a majority to end debate on legislation and move to a vote via a procedure called “moving the previous question.” But in 1804, Vice President Aaron Burr argued that the little-used rule was unneeded, and two years later, the Senate dropped it without replacing it. After that, a single senator (or a group of senators) could obstruct the legislative process simply by holding the floor. Thus the filibuster was born.

The word comes from the Spanish for “freebooter,” another name for pirate. In the mid-nineteenth century, it signified men, usually Americans, who tried to seize control of weak Central American countries. (The most famous of these was William Walker, the so-called “grey-eyed man of destiny,” who briefly became president of Nicaragua in 1856.) How the word came to be used as a name for dilatory legislative tactics is unknown; the first known example of this meaning dates to 1863.

The tactic was rarely deployed immediately after its creation. It was used once in 1837 to prevent a censure of President Andrew Jackson from being expunged, and once in 1841 to prevent the establishment of a new national bank. Ending legislative debate in the Senate required unanimous consent until 1917, when, after Germany declared unrestricted submarine warfare, 12 antiwar senators successfully filibustered a bill that would have armed merchant vessels. At the request of President Woodrow Wilson, the Senate voted 76–3 to establish a cloture rule that would allow two-thirds of senators present and voting to shut down debate. Senators first invoked cloture in 1919 to end debate on the Treaty of Versailles, which they then rejected.

In the next few decades, Southern Democrats made heavy use of the tactic to derail civil rights legislation, including anti-lynching bills. Back then, filibustering senators actually had to hold the floor and speak. Senator Strom Thurmond set a record in 1957 when he spoke for 24 hours and 18 minutes against that year’s civil rights bill—quoting from Shakespeare, reading all of George Washington’s Farewell Address, and citing, at length, the provisions of various laws.

But as the campaign for civil rights intensified, Southern senators’ obstructionism became increasingly controversial—and the filibuster came under increasing scrutiny. In 1949, a 54–42 Democratic-majority Senate had changed the cloture rule to require two-thirds of the entire upper chamber, not just those present and voting. (Proposals to change Senate rules, however, required unanimous consent.) But at the beginning of the 86th Congress, on January 5, 1959, Majority Leader Lyndon Johnson proposed to undo this rule and to remove the exemption for rules changes. Vice President Richard Nixon ruled that this proposal itself could not be filibustered, as it had been brought on the first day of the new Congress and the Senate had a constitutional right to set its rules. It passed. The significance became evident in 1964, when Southern senators filibustered that year’s historic civil rights bill for fully 75 hours before cloture was successfully invoked for only the second time since 1927.

Later changes led to the modern incarnation. Until 1970, a filibuster brought the Senate to a halt until either the motion was abandoned or cloture was invoked. That year, a rules change allowed the Senate to consider more than one motion at a time. In 1975, the number of votes needed to invoke cloture was reduced to three-fifths of the whole Senate: 60 votes. (Cloture for rules changes still requires two-thirds of those present and voting.) Naturally, when senators no longer needed to hold the floor to filibuster, the tactic became much more common. The effect was to require 60 votes to pass legislation or confirm nominations in the Senate, something not contemplated by the Founders—nor, of course, forbidden by them.

Deepening partisan divisions leave the filibuster’s future uncertain. In the 2000s, both parties began to threaten the “nuclear option” to eliminate filibusters for Senate-confirmed nominees. In 2013, the Democrats exercised it for all nominations except for the Supreme Court. Republicans finished the job four years later, removing the Supreme Court exception. Now many Democrats, having the most tenuous of majorities, want to eliminate the tactic altogether. Both President Biden and nearly every sitting Democratic senator have deplored the filibuster while in the majority and defended it while in the minority, a reminder that transitory political advantage can be a powerful motivation.

Though the Founders did not include it in their original constitutional design, the filibuster arguably reinforces the Senate’s character as the proverbial saucer in which to cool hot tea. The Founders believed that House members would tend to be sensitive to public passions, while more insulated senators would be better able to legislate wisely. Viewed through that lens, the legislative filibuster serves to dampen what might be violent swings in public policy as the fortunes of the two parties ebb and flow. Time will tell whether, in its absence, today’s tea kettle will boil over.

Photo: ilbusca/iStock

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