A filibuster is a parliamentary means for blocking a legislative body’s vote on an issue. As Encyclopaedia Britannica explains, a filibuster is “used in the United States Senate by a minority of the senators—sometimes even a single senator—to delay or prevent parliamentary action by talking so long that the majority either grants concessions or withdraws the bill.” The strategy is only used in the Senate because “unlike the House of Representatives, in which rules limit speaking time, the Senate allows unlimited debate on a bill. Speeches can be completely irrelevant to the issue.” [1]

Two tactics can be used to defeat the filibuster: by invoking cloture (thereby limiting or ending debate and mandating a vote on the issue at hand) or by maintaining around-the-clock sessions to tire those using the filibuster. Perhaps the most famous depiction of a marathon filibuster, and the various tactics used to fight it, is the climactic scene in the classic 1939 movie Mr. Smith Goes to Washington, when the star of the film, an idealistic freshman senator played by Jimmy Stewart, finally collapses on the Senate floor from exhaustion. [1] [2]

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The word “filibuster” itself emerged from piracy. Derived from Dutch and Spanish, the term first appeared in English in 1591 as “flee-booters,” referring to people who raided the Caribbean Spanish colonies. The word gained a syllable along the way, and by the 1850s “filibusters” were Americans who traveled to the Spanish West Indies and Central America to encourage revolution. When applied to Senate speechifying, as NPR host Melissa Block has explained, “Filibustering senators were, by extension, pirates raiding the Congress for their own political gain.” [3]

Ironically, the first instance of “talking a bill to death” happened during the very first session of Congress, on Sep. 22, 1789. As Anti-Administration Party Senator William Maclay of Pennsylvania wrote in his journal, the “design of the Virginians and the Carolina gentleman was to talk away the time, so that we could not get the bill passed.” Despite the proto-filibustering, the bill was passed 31-17, wrote Maclay. [4] [5]

In 1789, both the House and Senate had a rule allowing for a simple majority to end debate: the “previous question motion.” The House rulebook still has that motion. The Senate eliminated it in 1805 when Vice President Aaron Burr (who had just been indicted for the murder of Alexander Hamilton) told the Senate to clean up their rulebook, specifically to get rid of this tactic. The Senate did so in 1806, eliminating the Senate’s ability to end debate with a simple majority, thereby enabling the filibuster. [6]

According to the US Senate, the term “filibuster” first came into congressional use when Mississippi Democrat Senator Albert Brown noted his “friend standing on the other side of the House filibustering” on Jan. 3, 1853, and when North Carolina Whig Senator George Badger bemoaned “filibustering speeches” in February of the same year. Other sources state “filibuster” didn’t take on its Senate meaning until 1889 or 1890. [3] [4]

The debate over eliminating the filibuster is almost as old as its appearance in the Senate. As early as 1841, Kentucky Whig Senator Henry Clay, frustrated with filibustering Democrats, threatened to limit debate. Alabama Democrat Senator William King countered that Clay might as well “make his arrangements at his boarding house for the [entire] winter” in preparation for even longer debates to maintain the filibuster. [4]

But as the Senate grew in members and the amount of work it had to do, so did frustrations with the filibuster, as long speeches could derail work for days. President Woodrow Wilson made his displeasure known when, at the end of the 64th Congress on Mar. 4, 1917, the Senate’s work had not been completed: the “Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” [4] [7] [8] [9]

At Wilson’s urging, in a special congressional session, Senate Rule 22 was adopted on Mar. 8, 1917. The rule meant that senators could file a motion to invoke cloture, which would prompt a vote on whether to end the debate two business days after the motion was filed, allowing up to 30 additional hours of debate. Two-thirds of the Senate was required to end a filibuster with cloture until 1974 when the rule was changed to three-fifths (meaning 60 US senators). If the motion is approved during the cloture vote, then cloture has been invoked and the Senate will vote on the item in question without further delay and debate. [4] [7] [8] [9]

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The first invocation of cloture occurred on Nov. 15, 1919, and ended debate on the Treaty of Versailles. Between 1917 and Aug. 8, 2022, US Senators have filed 2,591 cloture motions, voted on cloture 2,062 times, and successfully invoked cloture in 1,361 cases. At first used sparingly, cloture recently became a more popular tool during the 113th Congress (2013-2014) when its use jumped to 187 from 41 clotures in the 112th Congress (2011-2012). [10] [11]

The longest individual filibuster on record occurred in 1957, when US Senator Strom Thurmond of South Carolina talked for more than 24 hours as part of an unsuccessful attempt by Southern senators to obstruct civil rights legislation. [1]

Key to the current debate over filibusters is the political parity that exists in the US Congress. With the US Senate almost evenly split between Democrats and Republicans, at a time when the parties share little ideological overlap and seldom agree on anything, the filibuster has become a prime tool for hindering the presidential and congressional agendas of the majority party, whose control over the Senate is slight and tenuous and far from a large mandate, making legislation almost impossible to pass. [12]

Additionally, senators no longer have to actually talk for hours to filibuster. Just the threat of a filibuster (also called a “virtual filibuster”) is enough to effectively block legislation. William Galston, Cofounder of the Congressional reform group No Labels, describes the tactic as a “sort of a ‘Look ma, no hands’ way of avoiding accountability” and the sweat equity that once required senators to talk for hours. [47] [48]

An Apr. 29, 2021, Monmouth University poll found 38% of Americans want to keep the filibuster with no changes, 38% believe the Senate should reform filibuster rules, and 19% would get rid of the filibuster entirely. However, only 19% of Americans stated they were “very familiar” with how the filibuster functions, while 12% were “not too familiar” or “not at all familiar” with the strategy and 29% had never heard of the filibuster. [13]

The unfamiliarity with the filibuster creates a difficulty among Americans in thinking about how to reform the Senate procedure. According to the Brennan Center for Justice, the filibuster has been modified more than 160 times since its introduction. Recently, the “nuclear option” has been used in 2013 and 2017 to eliminate the use of the filibuster for presidential executive and judicial appointments and US Supreme Court nominees. The “nuclear option” allows senators to change Senate rules with a simple majority vote. Following this option, senators could mandate the elimination of the filibuster for specific key party platform legislation such as voting rights. [14] [15]

Another possible reform would be to change the threshold for invoking cloture from 60 to a higher or lower number of senators in order to strengthen or weaken the filibuster. One version is an “inverted filibuster” in which only 41 votes (instead of 60) would be needed to invoke cloture and end a filibuster, thereby shifting the burden to the dissenting senators instead of the senators promoting the legislation in question. Also suggested is to require three-fifths of “present and voting” senators to invoke cloture and end a filibuster instead of the current requirement of three-fifths of “duly chosen and sworn” senators, many of whom may not be present or voting, thereby making it easier to kill a filibuster. [14] [16]

Should the US Senate Keep the Filibuster?

Discussion Questions

1. Should the US Senate eliminate the filibuster? Explain your answer.

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2. If the Senate keeps the filibuster, should the rules be reformed? If yes, how and why? If no, why not?

3. Consider a cloture motion from the Senate’s history. If you were a Senator, would you have filibustered the bill or nomination? Would you have submitted a cloture motion? Do you agree with the outcome of the cloture motion and the final fate of the bill or nomination? Explain your answers.

Take Action

1. Consider the Brady Center’s position that “the filibuster is killing us.”

2. Examine Mira Ortegon’s suggestions to “fix” the filibuster.

3. Analyze Senator Mike Lee’s position that the filibuster “protects America from bad law.”

4. Consider how you felt about the issue before reading this article. After reading the pros and cons on this topic, has your thinking changed? If so, how? List two to three ways. If your thoughts have not changed, list two to three ways your better understanding of the “other side of the issue” now helps you better argue your position.

5. Push for the position and policies you support by writing US national senators and representatives.

Sources

1.The Editors of Encyclopaedia Britannica, “Filibuster,” britannica.com, Sep. 12, 2019 2.Lee Pfeiffer, “Mr. Smith Goes to Washington,” britannica.com, June 6, 2019 3.All Things Considered, “History of the Word Filibuster,” npr.org, May 18, 2005 4.US Senate, “About Filibusters and Cloture | Historical Overview,” senate.gov (accessed Apr. 20, 2022) 5.William Maclay, “Journal of William Maclay: United States Senator from Pennsylvania, 1789-1791,” books.google.com, 1789-1791 6.Sarah Binder, “The History of the Filibuster,” brookings.edu, Apr. 22, 2010 7.Government Affairs Institute at Georgetown University, “Filibuster Rules Changes Epitomize the Senate,” gai.georgetown.edu (accessed Apr. 20, 2022) 8.US Senate, “Cloture,” senate.gov (accessed Apr. 20, 2022) 9.US Senate, “Cloture Rule,” senate.gov (accessed Apr. 20, 2022) 10.US Senate, “Cloture Motions,” senate.gov (accessed Apr. 20, 2022) 11.US Senate, “Cloture Motions – 66th Congress,” senate.gov (accessed Apr. 20, 2022) 12.Heather Timmons and Eshe Nelson, “What Is Cloture and Why Is the Senate Using It More Often?,” qz.com, Oct. 4, 2018 13.Monmouth University, “Public Divided on Filibuster Reform, but Few Want to Dump It Entirely,” monmouth.edu, Apr. 29, 2021 14.Democracy Docket, “What Is the Filibuster and How Can the Senate Reform It?,” democracydocket.com, Nov. 16, 2021 15.Brennan Center for Justice, “Filibuster Reform: A Short Guide,” brennancenter.org, Jan. 19, 2022 16.Danielle Brian, “A Practical Way Forward on Filibuster Reform,” pogo.org, June 17, 2021 17.Heritage Explains, “The Role of the Filibuster,” heritage.org, Jan. 4, 2021 18.Rachel Bovard, “Why Preserving the Legislative Filibuster Is Critical for Conservatives,” heritage.org, Apr. 11, 2017 19.John Thune, “Thune: Republicans Will Continue to Defend Minority Party’s Rights to Forge Bipartisanship, Compromise,” thune.senate.gov, Mar. 23, 2021 20.Brian Darling, “The Filibuster Protects the Rights of All Senators and the American People,” heritage.org, Jan. 3, 2011 21.Joseph Story, “Commentaries on the Constitution of the United States,” resources.utulsa.edu, 1833 22.US Senate, “The Idea of the Senate,” senate.gov (accessed July 11, 2022) 23.US Senate, “Senate Created,” senate.gov (accessed July 11, 2022) 24.Pete Wichlein, “The Filibuster Is Unbearable, Odious and Infuriating. We Better Not Get Rid of It.,” thefulcrum.us, Jan. 17, 2022 25.David French, “Keep the Filibuster, There Are Better Ways to Reform a Broken System,” time.com, Mar. 23, 2021 26.David Super, “Keep the Filibuster. It Could Save Progressive Legislation in the Future.,” washingtonpost.com, June 22, 2021 27.US Senate, “Party Division,” senate.gov (accessed July 12, 2022) 28.Peter Certo, “We May Be One Election From Permanent Minority Rule,” inthesetimes.com, Mar. 8, 2021 29.Ian Millhiser, “America’s Anti-Democratic Senate, in One Number,” vox.com, Jan. 26, 2021 30.Ari Berman, “The Insurrection Was Put Down. The GOP Plan for Minority Rule Marches On.,” motherjones.com, Mar.-Apr. 2021 31.Li Zhou, “Kyrsten Sinema’s Opposition to Filibuster Reform Rests on a Myth,” vox.com, Jan. 13, 2022 32.Tom Murse, “The 5 Longest Filibusters in US History,” thoughtco.com, Apr. 11, 2022 33.GovTrack, “HR. 6127. Civil Rights Act of 1957. Motion That Senate Concur in House-Approved Provision Permitting a Jury Trial in Some Criminal Contempt Cases Involving Voting Rights.,” govtrack.us (accessed July 13, 2022) 34.Adam Clymer, “Strom Thurmond, Foe of Integration, Dies at 100,” nytimes.com, June 27, 2003 35.James Lardner, “And Then There Was Proxmire,” washingtonpost.com, Sep. 30, 1981 36.Zeeshan Aleem, “A Study Shows the Filibuster Doesn’t Actually Increase Debate,” msnbc.com, Jan. 31, 2022 37.Shu Fu and William G. Howell, “The Filibuster and Legislative Discussion,” uchicago.app.box.com, Jan. 18, 2022 38.Bill Chappell, “Transcript: ‘What a Gift John Lewis Was’: Obama Eulogizes His Friend and Hero,” npr.org, July 30, 2020 39.Sarah Binder, “Mitch McConnell Is Wrong. Here’s the Filibuster’s ‘Racial History.,’” washingtonpost.com, Mar. 24, 2021 40.Tim Lau, “The Filibuster, Explained,” brennancenter.org, Apr. 26, 2021 41.Peter Granitz, “Senate Passes Anti-lynching Bill and Sends Federal Hate Crime Legislation to Biden,” npr.org, Mar. 8, 2022 42.Jeffery A. Jenkins and Justin Peck, “Congress Finally Passed a Federal Anti-lynching Bill — after 120 Years of Failure,” washingtonpost.com, Mar. 9, 2022 43.Congress.gov, “H.R.55 – Emmett Till Antilynching Act,” congress.gov (accessed July 13, 2022) 44.Mel Barnes, Norman Eisen, Jeff Mandell, and Norman Ornstein, “Filibuster Reform Is Coming—Here’s How: Seven Ideas for Change,” brookings.edu, Sep. 2021 45.Alex Tausanovitch and Sam Berger, “The Impact of the Filibuster on Federal Policymaking,” americanprogress.org, Dec. 5, 2019 46.Zack Beauchamp, “The Filibuster’s Racist History, Explained,” vox.com, Mar. 25, 2021 47.Mark Roth, “Senate Filibuster No Longer Requires Long Floor Speech,” post-gazette.com, Apr. 9, 2012 48.Mitchell Scacchi, “Ask Civics 101: Why Do We Have A ‘No-Talk Filibuster’ Rule?,” nhpr.org, June 17, 2021

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