Under the minority leadership of Sen. Mitch McConnell, the already-flawed Senate has been turned into a chamber of pure partisanship, gridlock, and dysfunction that stands as a barrier to any meaningful change.
The filibuster, an outdated Senate tool that gives veto power to a fraction of senators representing as little as 11% of the American population cannot be allowed to continue standing in the way of progress.
Whatever one thought of the value of the filibuster in years past, it is clear that the filibuster has been weaponized and abused by Sen. McConnell to allow a partisan minority to block overwhelmingly popular legislation and to advance his partisan and ideological interests.
Put simply, the filibuster is a Senate rule that allows a minority of Senators — just 41 out of 100 — to prevent a bill from even getting an up-or-down vote.
The Senate, like the House of Representatives, only needs a simple majority to pass legislation. But the problem is that to end debate – and end a filibuster – you need 60 votes or more.
The filibuster has been defended as a tool that senators can use to extend and promote discussion and debate. However, after decades of use as a weapon to block civil and voting rights bills, it is now used as a partisan weapon to create gridlock and obstruction. Instead of encouraging bipartisan consensus, it pushes both parties to retreat into their partisan corners and incentivizes the minority party to obstruct the majority knowing that the public will blame the party in control.
Requiring a supermajority of senators to advance legislation gives Republicans a natural advantage because they already have a structural advantage when it comes to the Senate.
Currently, the Senate over-represents white, especially rural, voters and underrepresents nonwhite and urban ones. For example, there are roughly 40 million Californians and fewer than 600,000 Wyomingites. Each state has two senators. According to analysis by Michael Ettlinger, “the average state has a population of 6.5 million, making the average American one of 6.5 million constituents for each of their two senators. Californians are, however, one of 39.5 million constituents for their two senators. That makes Californians 83 percent less important in the Senate than the average” and “people in Wyoming are each one of 579,000 constituents, making them matter 10 times more than the average.”
In the last Congress, when Republicans held 53 seats compared to the Democrats’ 47, that “majority” represented 15 million fewer people than the Democratic “minority.” Put another way, 53 senators represented 48 percent of the population, and 47 Democratic senators represented 52 percent of the population. And just 16 percent of the population gets half the representation in the US Senate. And, separately, 16 senators represent half of this country's population.
This problem is growing larger, as Americans move away from smaller states in favor of larger states like California and New York. Data for Progress estimates that these demographic shifts give Republicans a three percent advantage in the contest to control the Senate. That is a massive head start, and it makes it difficult to even gain control of the body with a majority of the vote, let alone enough of a coalition to overcome a filibuster.
One method both parties have used to get around the filibuster is budget reconciliation, a process that protects the considered legislation from a filibuster, and only requires a simple majority to pass, but also limits what the bill can do.
Budget reconciliation can only be used on bills that make changes to spending and the tax code. Republicans have used reconciliation to pass their massive tax cuts for the rich, while Democrats have used it to increase federal investments in COVID relief and other priorities.
The recent passage of the American Rescue Plan through reconciliation highlights that the Senate can work well on major legislation that passes with a simple majority. But while reconciliation is a powerful tool to avoid the filibuster on budget-related bills, it is useless when it comes to key priorities like voting rights, raising the minimum wage, gun safety, and much more.
The Senate rules in general and the filibuster in particular have been updated and reformed many times of the years.
In 2013, led by former Senate Majority Leader Harry Reid, the Senate approved a historic rule change by eliminating the filibuster's use on all presidential nominees except those to the U.S. Supreme Court. The rules governing the filibuster changed once again in April of 2017, when Senate Republicans led by Senate Majority Leader Mitch McConnell extended the nuclear option to Supreme Court nominations to end debate on the nomination of Neil Gorsuch.
Despite what some filibuster-defenders will say, the filibuster is not written into the constitution, was not a part of the original Senate, has been changed many times over the year, and can be changed again.
Many proponents of retaining the filibuster make the mistake of assuming that this legislative tactic is a fundamental part of our system of government, something that’s been part of our Senate since its inception and crucial to its function. They portray the filibuster as a dignified act of dissent, one that requires principle (and stamina) to pull off, and one that is used to protect the will of the minority as a last resort.
That’s not true. The filibuster was not part of the original Senate, and it is antithetical to the Framers’ vision for it. The Senate was conceived to be a majority-rule institution where debate was meant to be thoughtful but limited. In its current form, the filibuster is an invention of the modern era of the Senate that, over time, has been misused and abused to the detriment of our democracy.
The Constitution was drafted in the shadow of the Articles of Confederation, and many provisions were in direct response to mistakes written into the Articles. For example, the Articles of Confederation allowed for a minority to block the majority, which caused constant gridlock. The Framers did not want to repeat that mistake.
The Framers stated repeatedly that majority rule was the “first principle” of a Republic. In the words of James Wilson, one of the first members of the Supreme Court, “the majority of the people wherever found ought in all questions to govern the minority.” Thomas Jefferson repeatedly argued in favor of majority rule, at one point saying “It is my principle that the will of the majority should always prevail.”
One of Jefferson’s greatest rivals, Alexander Hamilton, also foresaw the damage that could be done by supermajority requirements. In the Federalist Papers, he wrote that if “a pertinacious minority can control the opinion of a majority,” the result would be “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”
To put it plainly, protecting the minority was not a prized feature of the Senate.
To that end, the original rules of the Senate gave strong preference to the will of the majority. Five of the original 19 Senate rules placed limits on debate, and the presiding officer’s role was to call senators to order if they became obstructionist. In Jefferson’s manual on Senate procedure, he wrote: “No one is to speak impertinently or beside the question, superfluously or tediously.”
Martin Gold, an expert on Senate procedure and a former Republican Senate staffer, makes it most clear when he says: “The possibility that a minority of senators could hold unlimited debate on a topic against the majority’s will was unknown to the first Senate.”
We know that the filibuster was not born in the Constitution or any other founding document. Where did it come from? In short, the filibuster came about as the result of a drafting error.
In 1805, shortly before assassinating Alexander Hamilton, Vice President Aaron Burr took it upon himself to suggest several changes to the Senate rules, finding them overly cumbersome. One such rule that fell by the wayside was the motion on ordering the previous question. This procedural motion is a vote to proceed to a vote on a bill already being considered.
However, by not replacing it within any alternate rule, Burr accidentally removed the ability of a majority of senators to end debate and proceed to a vote. Without the motion on ordering the previous question or a suitable replacement, there was no way to prevent a never-ending debate. How do we know being unable to end debate was a mistake? We know this because nobody took advantage of this loophole until three decades after the fact! The first filibuster was not conducted until 1837, and many senators, immediately recognizing the obstacle this represented to majority rule, tried and failed to restore the motion on ordering the previous question. However, small groups of senators blocked these reforms out of their own self interest in blocking policy that they opposed.
Far from being treated as sacrosanct, the filibuster has been neutered and reformed several times in order to allow the Senate to function as originally intended.
Realizing that allowing a small group of senators to grind the American government to a halt was a disaster waiting to happen, and needing Congress to quickly pass his wartime measures, President Woodrow Wilson brought immense public pressure on the Senate to revise its rules to include a “cloture” motion, which would allow the Senate to end debate with 67 votes. Far from being meant as a de facto threshold for the passage of a bill, cloture was intended as a rule to “terminate successful filibustering,” according to the committee that wrote the rule.
This threshold of 67 was almost entirely arbitrary and the result of a compromise. Most Democratic members of the committee establishing the rule wanted the threshold to be a simple majority. One Republican insisted on supermajority rule, and one wanted no cloture rule at all. They settled on 67.
The threshold for a cloture vote went from 67 to 60 in the 1970s, further showcasing just how amenable to change this threshold can be.
Another change in the 1970s enabled what we think of as the “silent filibuster” – where the opposition party announces their intention to filibuster, forcing the majority party to find 60 votes or to not pass their legislation. They don’t need to hold the floor or talk for hours on end to prevent a vote. They just need to say they will and it has the same effect. Their obstruction can be accomplished simply with the threat of a filibuster.
Even with all of the rule changes and reforms, the filibuster was rarely ever used in the 20th century! Invoking cloture, the process of getting 60 votes to end debate, is required when attempting to overcome a filibuster. Because few bills were filibustered, cloture – the vote to proceed to a vote – was typically only invoked between 10-20 times each Congress until the McConnell Era, as evidenced in the chart below.
The massive increase in cloture invocations during the Obama administration proves that the filibuster was rarely used until McConnell decided to weaponize this obscure tool.
In his eulogy for Rep. John Lewis, President Barack Obama surprised many when he attacked the filibuster as a “Jim Crow relic.” While the filibuster hasn’t been exclusively used for racist purposes, it is inextricably linked with racism and our nation’s painful opposition to civil rights legislation. In the 19th century, John Calhoun, who called slavery a “positive good,” was a strong proponent of the filibuster.
The filibuster was one of several ways in which he advanced his view of the “concurrent majority,” the idea that a minority of the country should have the power to nullify the will of the majority; in the 20th century, it was Richard Russell, the Georgia senator who led the opposition to the civil rights movement in the 1950s and 60s, who said that “any southern white man worth his salt should give his all to maintain white supremacy.” And the racist legacy of the filibuster remains to this day.
In its modern form, the filibuster requires a supermajority of senators to invoke cloture and end debate in order to proceed to a vote on a bill. This gives a small organized group of senators the power to grind proceedings to a halt whenever they want. Now, it is typically used by the minority party to block the majority party’s legislative priorities. However, in earlier eras, when there was reduced polarization, party-line votes were not nearly as common, and the minority party was not always able to hold enough members in line to block cloture.
There was one group that did consistently organize to take advantage of this procedural weapon: southern segregationists.
According to an article in the Stanford Law Review, law professors Catherine Fisk and Erwin Chemerinsky point out that in the early decades of the 20th century, the filibuster was considered to be a serious problem, and “among the filibusters that gave rise to this perception were the 75 years of successful Southern filibusters against civil rights legislation.” They continue and note that “during a 40 year period from the late 1920s until the late 1960s, the filibuster became almost entirely associated with the battle over civil rights.”
There is a long and shameful history of segregationists and racists using the filibuster to block necessary progress on key civil rights issues. From 200 anti-lynching bills to broad civil rights packages, segregationists constantly abused the rules in order to prevent much needed progress. The longest talking filibuster in Senate history, 24 hours and 18 minutes, was Strom Thurmond’s filibuster against the Civil Rights Act of 1957.
For the 87 years between the end of Reconstruction and the passage of the 1957 Civil Rights Act, the filibuster prevented civil rights bills from passing – including several civil rights bills that had majority support in the House, majority support in the Senate and support from presidents of both parties. Until 1964, civil rights bills were the only category of bills routinely stopped by the filibuster. As Ezra Klein notes, “Filibusters were rare in the midcentury Senate, but when they happened, it was primarily for one purpose: the preservation of racial segregation, hierarchy, and violence in the South.”
Even the Civil Rights Act of 1964, one of the most important pieces of civil rights legislation in American history, was blocked by a filibuster for more than two months before enough Republicans crossed the aisle to break the minority party’s blockage. This was the first time that cloture had ever been successfully invoked to bring up a vote on civil rights legislation. But the attempts at filibustering civil rights legislation did not end there. The Fair Housing Act of 1968 was also delayed by the filibuster, as was the extension of the Voting Rights Act in 1970.
It is also why leading Black advocates like Dorian Warren, president of Community Change, often draw connections between the past racist history of the filibuster and the obstruction of today. He said, “The continual blockage of civil rights and labor law reforms by Southern Democrats led to the elevation of “filibuster reform” as a legislative priority for both the civil rights and labor movements.” It is also why President Obama invoked this past at the funeral for Rep. John Lewis, a civil rights icon. When arguing for voting rights reform, he said, “and if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that's what we should do.”
This is not political opportunism. This is a recognition from those most involved in the fight for civil rights, past and present, that the filibuster is a bulwark against liberty. They knew then and now know that giving a small group of racists the ability to block legislation is a major impediment to progress for any oppressed people.