What is a Filibuster?
While the big news of the week has been the historic election of Barack Obama as the first African American President of the United States, there was another compelling story going on election night, and that was whether or not the Democrats would pick up enough seats in the Senate to gain a filibuster-proof supermajority, or a total of 60 Senate Seats. While the election night commentators kept Americans up-to-date on various Senate races in key states, they never really explained why having a filibuster-proof majority was important or what exactly a filibuster was anyway. This post will attempt to answer all those questions regarding the filibuster, and more.
First off, the Senate has long been famous for the filibuster, which quite simply is the deliberate use of prolonged debate and procedural delaying tactics to block action supported by a majority of the Senate members. Filibusters have been used on issues ranging from peace treaties to internal Senate seating disputes. Editorial writers have condemned them, cartoonists have ridiculed them, and satirists have caricatured them. But filibusters also have admirers, who view them as a defense against hasty or ill-advised legislation and as a guarantee that minority views will be heard.
Filibusters are permitted by the Senate’s tradition of unlimited debate, a characteristic that distinguishes it from the House of Representatives. In the early years of Congress, representatives as well as senators could filibuster. As the House of Representatives grew in numbers, however, revisions to the House rules limited debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue. The term filibuster is derived from a word for pirates or soldiers of fortune. The term originated in the House, although the modern House seldom experiences delay arising from a prolonged debate.
The Senate also proudly claims to be a more deliberative body than the House. Initially, the filibuster was used to delay voting so that the issues could be considered more carefully over a longer period of time. Wherein representatives may be quick to bring issues to the attention of Congress that are important in a single congressional district, the Senate usually considers broader implications that affect a state or the nation as a whole. George Washington described the Senate as the saucer where passions cool. But many people believe the modern filibuster impedes rather than encourages deliberation. Once reserved for the bitterest and most important battles—over slavery, war, civil rights—critics say filibusters today have been trivialized over petty issues.
Historically the rare filibuster provided the Senate’s best theater: participants had to be ready for days or weeks of free-wheeling debate, and all other business was blocked until one side conceded or a compromise acceptable to all was found. In the modern era the number of filibusters have increased but drama is rare. Disappointment awaits visitors to the Senate gallery who expect a real-life version of actor Jimmy Stewart’s climactic oration in the 1939 classic film Mr. Smith Goes to Washington. They are likely to look down on an empty floor and hear only the sound of a clerk reading absent senators’ names in a mind-numbing succession of quorum calls. Often the filibusterers do not even have to be on the floor, nor do the bills they are opposing.
Despite the lack of drama, filibusters and threats of filibusters remain a common weapon of senators hoping to spotlight, change, delay, or kill legislation. Frequent resort to the filibuster, real or threatened, often impedes Senate action on major bills. Success is most likely near the end of a session, when a filibuster on one bill may threaten action on other, more urgent legislation. Since a motion to end the filibuster by unanimous consent is by definition out of the question, a filibuster can be ended only by negotiating a compromise on the disputed matter or persuading a supermajority of senators to vote for a cumbersome cut-off procedure known as cloture. Achieving such a supermajority entirely within the Democratic Party was what the democrats were hoping for in their attempts to pick up Senate seats on Election Day. With a Democratic supermajority in the Senate, and thus the ability to end any Republican filibusters by a vote for cloture, the Democrats would have had no impediments to pushing through their legislative agenda 100% of the time.
Dramatic filibusters do still occur on occasion, as demonstrated by a 1987–1988 Republican filibuster against a campaign finance reform bill. To counter Republican obstruction Senate Majority Leader Robert C. Byrd of West Virginia forced round-the-clock Senate sessions that disrupted the chamber for three days. When Republicans boycotted the sessions, Byrd resurrected a little-known power that had last been used in 1942: he directed the Senate sergeant-at-arms to arrest absent members and bring them to the floor. In the resulting turmoil, Oregon Republican Bob Packwood was arrested, reinjured a broken finger, and was physically carried onto the Senate floor at 1:19 a.m. Democrats were still unable to break the filibuster, and the campaign finance bill was pulled from the floor after a record-setting eighth cloture vote failed to limit debate.
A Tradition as Old as the Senate
Delaying tactics were first used in the Senate in 1789, by opponents of a bill to locate the nation’s capital on the Susquehanna River. The first full-fledged filibusters occurred in 1841, when Democrats and Whigs squared off, first over the appointment of official Senate printers and then over the establishment of a national bank.
Slavery, the Civil War, Reconstruction, and blacks’ voting rights were the catalysts for increasingly frequent and contentious filibusters of the nineteenth century. Opponents had no weapon against them, since the only way to terminate debate was through a vote of unanimous consent, and proposed rules to restrict debate were repeatedly rejected.
Minor curbs on the filibuster were adopted early in the twentieth century. But they did not hinder Republican filibusterers from killing two of President Woodrow Wilson’s proposals to prepare the nation for World War I: a 1915 ship-purchase bill and a 1917 bill to arm merchant ships. As a political scientist in 1882, Wilson had celebrated “the Senate’s opportunities for open and unrestricted discussion.” After the 1917 defeat he railed, “The Senate of the United States is the only legislative body in the world which cannot act when the majority is ready for action. A little group of willful men… have rendered the great government of the United States helpless and contemptible.”
Public Influence and Cloture Votes
Public outrage finally forced the Senate to accept debate limitations. On March 8, 1917, it adopted a rule under which a filibuster could be halted if two-thirds of the senators present voted to do so. The framers of this first cloture rule predicted it would be little used, and for years that was the case. The first successful use of the rule, in 1919, ended debate on the Treaty of Versailles following World War I.
Nine more cloture votes were taken through 1927, and three were successful. The next successful cloture vote did not occur until 1962, when the Senate invoked cloture on a communications satellite bill.
Only sixteen cloture votes were taken between 1927 and the successful 1962 vote, most of which involved civil rights. Southern Democrats were joined by westerners and some Republicans in an anticloture coalition that successfully filibustered legislation to stop poll taxes, literacy tests, lynching, and employment discrimination.
Many filibusters turned into grueling endurance contests. Strom Thurmond of South Carolina set a record for the longest speech in the history of the Senate. Thurmond, a Democrat who later switched to the Republican Party, spoke for twenty-four hours and eighteen minutes during a 1957 filibuster of a civil rights bill. Speakers did not always confine themselves to the subject under consideration, and in the Senate, there is no requirement to do so. Democrat Huey P. Long of Louisiana entertained his colleagues during a fifteen-and-a-half-hour filibuster in 1935 with commentaries on the Constitution and recipes for southern “pot likker,” turnip greens, and corn bread. A Senator could have opened up War and Peace and read that to the Senate if he or she wanted to.
During a 1960 filibuster of a civil rights bill, eighteen southerners formed into teams of two and talked nonstop in relays. Supporters of the bill had to stay nearby for quorum calls and other procedural moves or risk losing control of the floor. Then majority leader Lyndon B. Johnson kept the Senate going around the clock for nine days in an effort to break the filibuster. That was the longest session ever, but Johnson ultimately had to abandon the bill. Later in the year a weaker version passed.
“We slept on cots in the Old Supreme Court chamber near the Senate floor and came out to answer quorum calls,” recalled William Proxmire, a Wisconsin Democrat who supported the bill. “It was an absolutely exhausting experience. The southerners who were doing the talking were in great shape, because they would talk for two hours and leave the floor for a couple of days.”
Changing the Rule
Proponents of the right to filibuster gained a further advantage in 1949, when they won a change in the rules to require a two-thirds vote of the total Senate membership to invoke cloture, instead of just those present and voting. But the civil rights filibusters in the 1950s stimulated efforts to make it easier to invoke cloture.
The 1949 cloture rule had banned any limitation of debate on proposals to change the Senate rules, including the cloture rule itself. Since any attempt to change the cloture rule while operating under this stricture appeared hopeless, Senate liberals devised a new approach. Senate rules had always continued from one Congress to the next on the assumption that the Senate was a continuing body because only one-third of its members were elected every two years. Liberals now challenged this concept, arguing that the Senate had a right to adopt new rules by a simple majority vote at the beginning of a new Congress.
The dispute came to a head in 1959, when a bipartisan leadership group seized the initiative from the liberals and pushed through a change in the cloture rule. The new version permitted cloture to be invoked by two-thirds of those present and voting, as the original cloture rule adopted in 1917 had, and it also applied to proposals for changes in the rules.
Once cloture was invoked, further debate was limited to one hour for each senator on the bill itself and on all amendments affecting it. No new amendments could be offered except by unanimous consent. Non pertinent amendments and motions intended to delay action were not permitted.
Although they did not address the continuing-body question directly, Senators added new language to the rules stating that “the rules of the Senate shall continue from one Congress to the next unless they are changed as provided in these rules.”
The Modern Filibuster
In 1964 the Senate for the first time invoked cloture on a civil rights bill, thus ending the longest filibuster in history after seventy-three days of debate. Other civil rights filibusters were broken in 1965 and 1968. Liberal supporters of civil rights legislation, who had tried repeatedly to tighten controls on debate, became less eager for cloture reform in the wake of these victories. By the 1970s they themselves were doing much of the filibustering—against Vietnam War policies, defense weapons systems, and anti-busing proposals.
In 1975, however, the liberals tried again to tighten restrictions on debate. They succeeded in easing the cloture requirement from two-thirds of those present and voting (a high of sixty-seven votes, if the full Senate was there) to three-fifths of the Senate membership (a flat sixty votes, if there were no vacancies). The old requirement still applied for votes on changes in Senate rules.
The 1975 revision made it easier to invoke cloture with a supermajority of 60 votes. But the revision’s success relied on the willingness of senators to abide by the spirit as well as the letter of the chamber’s rules. When cloture was invoked, senators in the past had generally conceded defeat and proceeded to a vote without further delay. But minorities soon found other ways to obstruct action on measures they opposed. The most effective tactic was the post-cloture filibuster, pioneered by Alabama Democrat James B. Allen, a frequent obstructionist. In 1976, when the Senate invoked cloture on a bill he opposed, Allen demanded action on the many amendments he had filed previously. He required that each be read aloud, sought roll-call votes and quorum calls, objected to routine motions, and appealed parliamentary rulings. Other senators soon adopted Allen’s tactics.
As filibusters changed in character, the Senate’s enthusiasm for unlimited debate eroded. At the mere threat of a filibuster it became a routine practice to start rounding up votes for cloture—or to seek a compromise—as soon as debate began. Most of that action occurred behind the scenes. If the first cloture vote failed, more were taken. Meanwhile, leaders often shelved the disputed bill temporarily, with members’ unanimous consent, so that the Senate could turn to other matters. That tactic, known as double-tracking, “kept the filibuster from becoming a real filibuster,” as one senator said.
In 1979 the Senate agreed to set an absolute limit of one hundred hours on post-cloture delaying tactics. The television era prompted additional restraints on debate. When live televised coverage of Senate proceedings began in 1986, members gave new thought to their public image. Senators shied away from several proposals designed to quicken the pace and sharpen the focus of their proceedings for television viewers. But they did agree to one significant change in Senate rules. They reduced to thirty hours, from one hundred, the time allowed for debate, procedural moves, and roll-call votes after the Senate had invoked cloture to end a filibuster.
Despite these restrictions, filibusters continue to be an effective tool to obstruct Senate action. And, in fact, the number of filibusters has increased in recent decades. Several factors account for the increase. More issues come before the Senate making time an even scarcer commodity than in the past. More issues are controversial, and there is greater partisanship. In addition, constituents and special interest groups put more pressure on Senators, and Senators are more apt to pursue their political goals even if it means inconveniencing their colleagues.
With this increase in filibusters has come an increase in cloture votes as well. From 1961 to 2001, there were more than 500 cloture votes in the Senate, with more than one-third being successful in cutting off debate. While some senators have called for additional restrictions on filibusters, many members are reluctant to curb the hallowed Senate tradition—a tradition cherished by Democrats as well as Republicans.
During President Bill Clinton’s second term, a particularly partisan period from 1997 to 2001, more than 35 percent of cloture votes were decided by a majority of 70 votes or more in favor. This higher success rate than during previous decades suggested that cloture was being used less to close debate on far-reaching national issues, as often had been the case in the past, and more for political and legislative maneuvering. That is largely because, when invoked, cloture requires amendments to be pertinent to the legislation being debated. Under normal procedures, senators may offer non-pertinent amendments to get a vote on proposals that were blocked in committee or advocated by only a few senators. In some cases, a non-pertinent amendment may be aimed at advancing a political agenda or requiring senators to take a position that can be used against them in the next election. Those types of amendments can be avoided by invoking cloture even if a true filibuster is not expected. Thus, increasingly, cloture votes have come to be used by the majority party to control the Senate agenda.
Thanks for reading.
-Matthew S. Urdan
Binder, Sarah A., and Steven S. Smith. Politics or Principle? Filibustering in the United States. Washington, D.C.: Brookings Institution, 1997.
Burdette, Franklin L. Filibustering in the Senate. Princeton, N.J.: Princeton University Press, 1940.
Whalen, Charles, and Barbara Whalen. The Longest Debate: A Legislative History of the 1964 Civil Rights Act. Washington, D.C.: Seven Locks Press, 1985.
“Filibuster.” CQ Electronic Library, CQ’s Congress A to Z Online Edition, coaz4d-179-8936-501102. Originally published in Congress A to Z, 4th ed., edited by David R. Tarr and Ann O’Connor (Washington: CQ Press, 2003). http://library.cqpress.com/congressaz/coaz4d-179-8936-501102 (accessed May 29, 2008).
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