Understanding the Senate filibuster — and why so many want to get rid of it

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PRINT: What’s going on with the filibuster?

By Car­son Swick

April 30, 2021

Newswrit­ing II, Uni­ver­si­ty of Connecticut

On Aug. 28, 1957, Strom Thur­mond of South Car­oli­na took a long steam bath to deprive his body of flu­ids before head­ing to work at the Unit­ed States Senate. 

Upon his arrival, Thurmond’s aides arranged for a buck­et to be set up in the cloak­room adja­cent to the Sen­ate floor. This was not just anoth­er day at the office for Thur­mond, who took com­mand of the floor at 8:54 p.m. to rail against a civ­il rights pro­pos­al that would autho­rize the pros­e­cu­tion of those who inter­fered with African Amer­i­cans’ right to vote. When his speech was over at 9:12 p.m. on Aug. 29, Thur­mond had spo­ken for 24 hours and 18 min­utes — he paused only to uri­nate in that cloak­room buck­et while keep­ing one foot on the Sen­ate floor.

Sen. Strom Thur­mond (D‑South Car­oli­na) leaves the U.S. Sen­ate on Aug. 29, 1957, after speak­ing for over 24 hours against a civ­il rights pro­pos­al that would crim­i­nal­ize inter­fer­ing with African Amer­i­cans’ right to vote. Pho­to / Bettmann Archive / Get­ty Images

In tak­ing these dras­tic mea­sures, Thur­mond was engag­ing in the prac­tice of fil­i­bus­ter­ing, a con­tro­ver­sial Sen­ate tra­di­tion that has come under fire today. Guid­ed by the prece­dent of “unlim­it­ed debate,” the fil­i­buster allows a sen­a­tor to com­mand the floor for as long as he or she wish­es to stall a vote on a giv­en leg­isla­tive mea­sure. Fil­i­busters have also been used to stall con­fir­ma­tion votes on nom­i­nees to both fed­er­al courts and pres­i­den­tial cab­i­net positions.

Since the Demo­c­ra­t­ic Par­ty regained de fac­to con­trol of the Sen­ate in Jan­u­ary (Vice Pres­i­dent Kamala Har­ris has the pow­er to break ties in her party’s favor), the calls to reform — and even elim­i­nate — the fil­i­buster have grown sig­nif­i­cant­ly loud­er. Ear­li­er this month, Sen. Tina Smith (D‑Minnesota) claimed the fil­i­buster is “doing dam­age” to Amer­i­can democ­ra­cy and is respon­si­ble for the public’s per­cep­tion of the Sen­ate as a “bro­ken” institution.

Smith’s sen­ti­ment rings true to stu­dents at the Uni­ver­si­ty of Con­necti­cut, includ­ing Mason Hol­land, pres­i­dent-elect of the university’s Under­grad­u­ate Stu­dent Government.

Mason Hol­land, pres­i­dent-elect of Under­grad­u­ate Stu­dent Gov­ern­ment at the Uni­ver­si­ty of Con­necti­cut. Pho­to / UConn USG

“I think that the fil­i­buster has become anti­quat­ed in a nation seek­ing to address the equi­ty and wel­fare of its cit­i­zens,” Hol­land said. “When there is an impor­tant bill going to the floor, it seri­ous­ly impedes the abil­i­ty of the leg­is­la­ture to car­ry out a vote.”

Oth­ers in the UConn com­mu­ni­ty, such as polit­i­cal sci­ence pro­fes­sor and con­gres­sion­al schol­ar Paul Her­rn­son, have not­ed that the prac­tice of fil­i­bus­ter­ing has been abused by mem­bers of both par­ties in recent years.

“I think the most impor­tant point to make is [that] now we have a lot of fil­i­busters we don’t see,” said Her­rn­son. “It used to be [that] you had to stand and read ‘Green Eggs and Ham’ or a tele­phone book … Now, the threat of a fil­i­buster is enough to hold things up. That’s where the big abuse is, I believe.”

Dr. Paul Her­rn­son, Pro­fes­sor of Polit­i­cal Sci­ence at the Uni­ver­si­ty of Con­necti­cut. Pho­to / UConn Depart­ment of Polit­i­cal Science

Herrnson’s men­tion of “Green Eggs and Ham” is a nod to Sen. Ted Cruz (R‑Texas), who in Sep­tem­ber 2013 deliv­ered a 21-hour fil­i­buster — the fourth longest in Amer­i­can his­to­ry — to stall a vote on the Con­tin­u­ing Appro­pri­a­tions Act (CAA). The CAA pro­posed a solu­tion to the fis­cal gov­ern­ment shut­down of 2013–14, as well as fund­ing increas­es for the Afford­able Care Act, also known as Obamacare.

“I think Ted Cruz’s recent fil­i­buster was … pathet­ic,” Her­rn­son said. “He didn’t accom­plish any­thing. It was a waste of time, he offend­ed his col­leagues and didn’t have a cause.”

Sen. Ted Cruz (R‑Texas) pre­pares to read Dr. Seuss’ “Greeen Eggs and Ham” dur­ing his fil­i­buster of the Con­tin­u­ing Appro­pri­a­tions Act on Sept. 25, 2013. Screen­shot / C‑SPAN

Today, Cruz and oth­er Repub­li­cans are staunch­ly opposed to fil­i­buster reform, as they fear mak­ing changes will allow Democ­rats to steam­roll Pres­i­dent Joe Biden’s agen­da through Congress.

“What would be total­ly unac­cept­able would be a uni­lat­er­al move by one par­ty to sig­nif­i­cant­ly weak­en the leg­isla­tive fil­i­buster,” said Sen. Pat Toomey (R‑Pennsylvania), who not­ed that Repub­li­cans nev­er pushed for fil­i­buster reform while hold­ing the Sen­ate major­i­ty from 2015 to 2020. The fil­i­buster “has neces­si­tat­ed work­ing across par­ty lines, and the fact that that has been nec­es­sary results in more durable leg­is­la­tion. It’s not in anybody’s inter­est to have laws that bounce back and forth depend­ing on which par­ty is in pow­er … That kind of volatil­i­ty in our laws is ter­ri­ble, and we avoid it.”

Sen. Pat Toomey, a sec­ond-term Repub­li­can from Penn­syl­va­nia. Pho­to / toomey.senate.gov

Despite what the fil­i­buster has become, it was not orig­i­nal­ly intend­ed to waste valu­able time on the Sen­ate floor. In its guide­lines for both the Sen­ate and the House of Rep­re­sen­ta­tives, the U.S. Con­sti­tu­tion estab­lished a “pre­vi­ous ques­tion motion.”

For the first two decades of the repub­lic, just a sim­ple major­i­ty was need­ed for leg­is­la­tors to cut off debate and bring a mea­sure up for a vote. But this changed dur­ing the pres­i­den­cy of Thomas Jefferson.

In an April 6 Brook­ings Insti­tu­tion Zoom pan­el on fil­i­buster reform, Sarah Binder, senior fel­low in gov­er­nance stud­ies at the insti­tu­tion, explained that Jefferson’s vice pres­i­dent, Aaron Burr, was the first to sug­gest that the Sen­ate could abol­ish its pre­vi­ous ques­tion motion.

“It’s 1805, Aaron Burr is giv­ing a farewell speech to the Sen­ate,” Binder said. “He says, ‘You are a great delib­er­a­tive body, but your rule­book is a lit­tle messy … You could drop the pre­vi­ous ques­tion motion.’ And in 1806, the Sen­ate cod­i­fied its rules, and the pre­vi­ous ques­tion motion was gone.”

Sarah Binder (right) dis­cuss­es fil­i­buster reform in a Brook­ings Insti­tu­tion pan­el mod­er­at­ed by Mol­ly Reynolds (left), April 6, 2021. Screen­shot / Brook­ings Insti­tu­tion YouTube

Though sev­er­al influ­en­tial 19th-cen­tu­ry sen­a­tors actu­al­ly favored some lim­its on debate, the fil­i­buster grad­u­al­ly trans­formed into the time-con­sum­ing mea­sure it is today.

“We can go back [to] the 19th cen­tu­ry and find 19th-cen­tu­ry lead­ers try­ing to get the Sen­ate to impose and cre­ate lim­its on debate,” Binder said. “The great Sen­ate lead­ers who we rec­og­nize and cel­e­brate as great debaters — Hen­ry Clay, Daniel Web­ster … They all favored lim­its on debate.”

After the elim­i­na­tion of its pre­vi­ous ques­tion motion, it took 111 years for the Sen­ate to address the fil­i­buster. In 1917, it passed Sen­ate Rule XXII, also known as the “clo­ture rule.” The rule estab­lished the num­ber of votes need­ed to invoke clo­ture, the process that for­mal­ly ends a filibuster.

At that time, invok­ing clo­ture required a two-thirds (67 sen­a­tors) vote, but a 1975 amend­ment to Rule XXII low­ered this require­ment to three-fifths, or 60 of the 100 pre­sid­ing sen­a­tors. Many of today’s reform pro­pos­als call for a return to the sim­ple major­i­ty (51 sen­a­tors), sim­i­lar to the pre­vi­ous ques­tion motion out­lined by the orig­i­nal Constitution.

Advo­cates for fil­i­buster reform are quick to point out that the prac­tice has been rel­a­tive­ly unsuc­cess­ful in pre­vent­ing leg­is­la­tion from being passed. Of the six longest fil­i­busters in Amer­i­can his­to­ry, only one — Al D’Amato’s “phone­book fil­i­buster” against Pres­i­dent Ronald Reagan’s 1987 defense bud­get — has blocked the pas­sage of a bill in its final form. How­ev­er, an amend­ed ver­sion of this bud­get act was ulti­mate­ly passed.

As such, the afore­men­tioned fil­i­busters of Thur­mond and Cruz were both unsuc­cess­ful. The civ­il rights bill that Thur­mond stood against ulti­mate­ly passed the Sen­ate in a 72–18 vote, and it was signed into law by Pres­i­dent Dwight D. Eisen­how­er less than two weeks lat­er. Like­wise, the Con­tin­u­ing Appro­pri­a­tions Act passed the Sen­ate in an 81–18 vote and was signed by Pres­i­dent Barack Oba­ma less than a month after Cruz’s filibuster.

Pro­gres­sives have also argued that, since the fil­i­buster has been used by seg­re­ga­tion­ists like Thur­mond to stall votes on impor­tant civ­il rights leg­is­la­tion, it is an inher­ent­ly racist practice.

“I don’t believe that those who first began the fil­i­buster did so with the thought of sti­fling progress, but it mor­phed into that very quick­ly,” Hol­land said. “It has been used to racist ends, whether I think it is fun­da­men­tal­ly racist or not.”

But while schol­ars gen­er­al­ly acknowl­edge its his­to­ry of being employed by racist sen­a­tors, most agree that the fil­i­buster is not a fun­da­men­tal­ly racist tool.

“Using a fil­i­buster to pre­vent … leg­is­la­tion from going for­ward clear­ly has racial over­tones, but it’s not the tool itself that is racist,” said Her­rn­son. “The tool is anti-majoritarian.”

Pro­po­nents of the fil­i­buster like Toomey have also point­ed fin­gers at Democ­rats and their pro­gres­sive allies for their per­ceived incon­sis­ten­cies. In 2017, more than 30 Demo­c­ra­t­ic sen­a­tors signed the Bipar­ti­san Fil­i­buster Pre­serve Let­ter, a pledge intend­ed to do exact­ly as its name sug­gests. How­ev­er, Toomey point­ed out that only a hand­ful of today’s Demo­c­ra­t­ic sen­a­tors have main­tained this view.

“I’m a lit­tle sur­prised and dis­ap­point­ed, espe­cial­ly with how few of them have pub­licly come out and con­demned the idea [of elim­i­nat­ing the fil­i­buster],” he said.

Though the polit­i­cal pen­du­lum has seem­ing­ly swung the oth­er way, any fil­i­buster reform — par­tic­u­lar­ly a reduc­tion to the num­ber of sen­a­tors required to invoke clo­ture — is unlike­ly in the cur­rent ses­sion of Con­gress. Sen. Joe Manchin (D‑West Vir­ginia) has pub­licly opposed all reform efforts, which ensures that a major­i­ty of sen­a­tors will vote against weak­en­ing the fil­i­buster for now. Even bring­ing such a motion up for debate pos­es a chal­lenge, as Repub­li­cans could “fil­i­buster the fil­i­buster” and kill any pro­pos­al opposed by par­ty leaders.

“Leg­is­la­tion requires bipar­ti­san con­sen­sus, because then there’s no com­pelling inter­est in repeal­ing it,” said Toomey. “I think that’s the main rea­son that we should keep the fil­i­buster and peo­ple should care.”

 

Inter­views conducted:

  • April 6, Sarah Binder (Brook­ings Insti­tu­tion) Zoom Pan­el
  • April 8 with Paul Her­rn­son, via WebEx, paul.herrnson@uconn.edu
  • April 13 with Mason Hol­land, via Insta­gram, @masonh0lland
  • April 15 with Pat Toomey, via tele­phone, (610) 914‑3800