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What is a Filibuster and Why Reform is Good

The filibuster has had two forms.

TALKING FILIBUSTER

The original filibuster—known as the talking filibuster—required Senators to stand up for their principles through real debate and ensured the minority had their voices heard.

SECRET FILIBUSTER

The secret filibuster, which emerged later on, is a "pocket veto" for the Senate minority—allowing them to block legislation without ever engaging in open debate.

Originally, the filibuster existed as a mechanism for those whose conscience demanded they take a stand – literally – for their principles.

For most of our history, a filibuster required commitment. Senators had to keep speaking (individually or as a team) all day and night.  It required a real belief in a cause, and often would end with one side giving up or a compromise.

But in recent years, the rules were changed so that Senators could “filibuster” without needing to hold the floor or even defend their position.  Rather than being a tool to ensure debate and standing on principle, the filibuster became a way for popular legislation to be blocked from the shadows, for reasons that had nothing to do with conviction.  

Snapshot from the film Mr. Smith goes to Washington

The movie, Mr. Smith Goes to Washington, depicts an idealistic Senator's filibuster that allows the People's interests to overcome special interests.

Because of this, the filibuster has been changed by both parties in recent years.  The Senate recently considered a return to the original filibuster rules that require a Senator to keep talking for the filibuster to continue, but that reform was blocked by 52 Senators. 

What is a Filibuster? 

At the most basic level, a filibuster is when a Senator – alone or with party support – prolongs debate in order to avoid voting on an issue on which they will likely lose, even if it is supported by a majority of Americans. 

 

The filibuster was created to give the minority a chance to draw attention to its priorities, and it helped ensure important bills would be fully and openly debated.

 

The filibuster is not a part of the American Constitution, nor was it a part of the original Senate rules. It technically became possible in 1806, when Vice President Aaron Burr removed the rule which allowed a simple majority to force a vote. 

 

Decades later, the Senate minority realized now that the majority could not force a vote, the minority could slow down and even prevent votes on legislation they cared deeply about if they were going to lose.

 

Filibuster Goes Out of Control 

Although filibustering originally required the minority to stand up for their principles and actively engage in debate— without pause —if they wanted to delay the vote, over time Senators relaxed their interpretation of those unwritten rules to permit them to avoid a vote without verbally justifying their views.

The filibuster has a mixed history, but the most famous and longest filibusters came during the Civil Rights era to prevent the end of Jim Crow.

 

Infamously, Senator Strom Thurmond holds the record for the longest individual filibuster to demonstrate his opposition to the Civil Rights Act of 1957. Sen. Thurmond spoke for 24 hours and 18 minutes to stall passage of the Civil Rights Act of 1957. 

It happened again a few years later, when Democrats led by Richard Russell Jr. famously held up the passage of the Civil Rights Act of 1964 for 60 working days.

Since that time, it has gotten easier and easier to filibuster, to the point that it has gotten out of control. Though the filibuster was originally used to debate a bill, over time it became used to dispute judicial nominations too.

 

When the filibuster became a default tactic to essentially "pocket veto" bills and nominations, it was used rampantly. There were more filibusters during President Obama's time in office than in the 50s, 60s, and 70s combined. In the history of the Senate before 2009, just 68 judicial nominees ever required a vote to end the filibuster ("cloture"). In contrast, 79 nominees between 2009-2013 required cloture, (ultimately leading the Senate to change its rules so judges could no longer be filibustered.)

Graph depicting increasing cloture votes in the Senate from Brookings.

Use of the filibuster has increased dramatically over the years. Brookings.

Reforming the Filibuster throughout History

The first major change to the filibuster was introduced in 1917 to overcome the tactic being used to stall important votes around World War I.  The Senate created the cloture rule, allowing a vote of 67 Senators (later reduced to 60) to end debate and force a vote.

 

Over the past several decades, the Senate has changed its filibuster rules many times, passing more than 161 pieces of legislation from 1969 onward under exceptions to the established filibuster rules. 

The Nuclear Option

After more than a century of failed clotures and haggled exceptions, the last decade has pushed Senators to reevaluate their own rules. Because the filibuster has become such a common and easy tactic for the minority to block the will of the elected majority in the Senate, both parties have increasingly moved to reform and limit the filibuster.  

 

The most famous of the recent reforms was the so-called “nuclear option” that then-Republican Senate Majority Leader McConnell finally used in 2017 to override the Democrats’ filibuster to confirm Supreme Court justices by a simple majority vote — requiring only 51 votes to the previous 60.  

 

The term “nuclear option” was coined by former Republican Senate Majority Leader, Trent Lott.  It was seen as an unthinkable step to do away with the filibuster completely for judges because each party knew that such a change would undermine the historic precedent of appointing judges that could draw consensus from both parties.

After decades of different changes, carve-outs, and exceptions, the secret filibuster continues to undermine the will of the majority in America and weaken Congress' ability to pass needed legislation in a timely manner. Most recently, it blocked the John Lewis Freedom to Vote Act, which has broad majority support by the American public and majority of votes in the Senate. 

This has many Americans wanting filibuster reform, not through the “nuclear option” which President Biden opposes, but by restoring it to the original talking filibuster that encourages debate, voting, and provides protections to the Republican minority.