There seem to be a lot of people who think the Senate filibuster was a creation of our Founding Fathers, and some even believe it is in our Constitution. Neither of those are true. To counter all the misinformation about the filibuster, here is a short history of it from the Brennan Center for Justice:
Some Americans mistakenly believe the filibuster originated with the 1789 Constitution and was part of the framers’ plan for how the Senate should function. It plainly was not. The Constitution leaves it up to each house of Congress to set its own rules. Indeed, the framers considered and rejected the idea of requiring supermajorities for legislation. As Alexander Hamilton wrote in Federalist 22, “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.” They knew such built-in obstruction could doom a republic.
Tellingly, the filibuster did not become a rule or practice of the Senate until 129 years after the Constitution was ratified. Moreover, not only is the Constitution silent on the matter, but it prescribes supermajority votes only for very specific subjects, such as treaties, making clear that a simple majority is the expectation for other circumstances, including legislation. This indicates that supermajorities, as required by the filibuster, are otherwise disfavored.
In the years immediately following ratification of the Constitution, the Senate functioned under majoritarian rule. Before 1806, the Senate followed a rule allowing debate to be brought to a close by a simple majority of the body. Apparently by mistake, the Senate eliminated the rule shortly after but nonetheless did not experience a filibuster for 30 years, indicating that it was not a practice of the early Senate.
It was not until the 1850s that the term filibuster was employed in reference to stem-winding speeches by senators intending to push back the timing of a vote, either because they sought to kill a bill or gain other leverage. But even then the filibuster was rarely used, as it required senators to physically stay on the Senate floor and continue their speechmaking, a tactic difficult to sustain for any great length of time. Its impact was therefore limited, perhaps causing some delays but not derailing legislation opposed by the filibustering senators — which might explain why “almost every filibustered measure before 1880 was eventually passed.”
It was only at the close of the 19th century that filibusters began to make a difference in legislative outcomes. Senators realized that the filibuster could thwart disfavored bills. In turn, other senators and outside reformers demanded that Senate rules be changed to allow a simple majority to determine legislative outcomes.
This conflict came to a head in 1891 after a series of filibusters by Democrats threatened to derail legislation authorizing federal troops to supervise federal elections — an early use of the tool to block civil rights protections for Black Americans. Seeking to cut off debate, Republican leaders appealed to Vice President Levi Morton to rule on whether a majority could bring debate to a close and proceed to a vote. At that time, the Senate had yet to adopt any provision to end debate — in other words, to bring a filibuster to a close — because the filibuster’s use had been so rare. Sen. George Edmunds (R-VT) defended what would become the cloture rule, explaining, “The Constitution . . . necessarily implies that no minority, whether of one or any other number, should or could unduly obstruct the expression of the will of the majority. Edmunds’s proposal did not pass. But during World War I, a filibuster by what President Woodrow Wilson decried as a “little group of willful men” against legislation seeking to arm U.S. merchant ships against German attacks caused an outcry for reform. Wilson made clear his strong support for a change to Senate rules, lamenting that “the Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.”
Proponents of reform continued to make the point that the Constitution left it to the Senate to set its own rules by a majority vote at the beginning of each new Congress — allowing members to change the rule so that a mere majority could win a vote. Sen. Thomas Walsh (D-MT) explained to the chamber that the Constitution gave each house the power to set its own rules, something done by the House of Representatives each Congress via a majority vote. Indeed, he argued, the case was even stronger for the Senate, since it is a “continuing body,” whereby some senators remain even while others are up for reelection. “A majority may adopt the rules, in the first place. It is preposterous to assert that they may deny future majorities the right to change them.” It would be unconstitutional, Walsh argued, for a Senate rule to thwart the ability of future Senates to set their own rules. Soon afterward, in 1917, the Senate adopted the cloture rule, allowing a vote to bring debate to a close and end a filibuster. While Walsh’s arguments were never formally considered, the idea that the Senate could rule by majority no doubt had an impact on the adoption of the cloture rule. At that time, the Senate chose not to adopt a strict majority rule, instead requiring two-thirds of the senators present to vote for cloture to end debate. Nonetheless, the adoption of the cloture vote demonstrated the Senate could change its rules to prevent obstructive tactics. Cloture votes were quite unusual for the next half century, with just 37 between 1917 and 1967.
Starting in the late 1950s, senators began to use the filibuster to thwart passage of civil rights legislation intended to address the deeply entrenched racism that affected so many areas of American life. Anti–civil rights Dixiecrats obstructed anti-lynching bills; bills prohibiting poll taxes; and bills prohibiting discrimination in employment, housing, and voting. Most notable were their filibusters of the most significant civil rights bills in United States history: the Civil Rights Acts of 1957 and 1964. Then-Democratic Sen. Strom Thurmond held the floor against the 1957 act without a break for 24 hours and 18 minutes. Even longer, the filibuster against the Civil Rights Act of 1964 went on for 74 days, although it was ultimately unsuccessful.
Despite this shameful track record, the Senate did not reform the filibuster again until 1974. By that time, its use had become more widespread as senators sought to delay and derail an array of bills that went beyond civil rights.
Undercutting this reform, however, the Senate contemporaneously adopted a rule that gave the filibuster new strength. No longer would a filibuster delay all Senate business. Instead, new Senate procedure would create a dual-tracking system that allowed the body to toggle between different bills so that a bill facing a filibuster was “kept on the back burner” until a vote for cloture could be successful.
Another reason the filibuster remained a forceful tool despite a reduction in the number of votes required to invoked cloture is that breaking a filibuster takes time. The Senate moves legislation through a series of motions, each of which can be filibustered. The first motion, the “motion to proceed,” allows the first bite at the apple. By filibustering a motion to proceed — the motion that begins consideration of a measure — an obstructionist can kill a bill early, avoiding all public debate. What’s more, one successful cloture vote does not clear the way for passage. Senators committed to killing a bill can filibuster a given bill at six different points in the legislative process.
In today’s Senate, any bill in practice, if not formally, requires 60 votes to proceed.
