The End of Obstruction
The U.S. Senate majority can end routine obstruction — as the U.S. House majority did 130 years ago.
Representative Thomas Reed, Speaker of the House, had a problem a few weeks into the regular session of Congress in early 1890. His Republican Party was in control of the House, Senate, and Presidency for the first time in 16 years, elected on an ambitious legislative program. But the Democrats were prepared to use a quirk in the House rules to block his narrow majority. The stakes were high: would the new majority be able to pass the program it had been elected to implement?
During the prior decades, the minority party in the House had developed a highly effective means of obstruction that was far worse than any in the Senate at that time. The Constitution requires a majority of Representatives to be present to conduct business. The minority party would call for a quorum, and when called by the clerk, party members would remain silent — and be counted absent. This “disappearing quorum” technique had been used effectively to stall the previous Congress, with 400 roll call votes demanded.
In January 1890, Republicans had an eight-seat advantage, only three more than the quorum requirement — and one had died and several were ill.
Reed was determined to destroy the disappearing quorum — or quit politics. The first order of business was to resolve a claim that a Democrat was improperly occupying a House seat where Democrats had intimidated Black voters and stolen votes (there were four other similarly disputed seats). The Democrats called for a quorum count, but kept silent when called by the Clerk. The House could not continue due to lack of a quorum, even though almost all members were physically present. Reed began to read the names of the members, and told the Clerk to record the names of those present and refusing to vote. One Democrat complained, “I deny your right, Mr. Speaker, to count me as present!” Reed replied: “The Chair is making a statement of fact that the gentleman is present. Does he deny it?”
The opposition did not give in easily. Over four days of debate, Democrats called the new rule tyrannical, unconstitutional, corrupt, revolutionary, and a violation of “our ancient usages and customs,” and deployed multiple delaying tactics. Finally they left the chamber altogether. Reed was able to round up enough Republicans to make a quorum, and then with no Democrats present resolved the electoral dispute in favor of seating the Republican.
On Valentine’s Day, 1890, obstruction was squelched by the adoption of Reed’s Rules eliminating the disappearing quorum and, among other innovations, providing for a 100-person quorum when the House meets as the Committee of the Whole. Eventually all of the disputed House seats were resolved in favor of the challengers: three more Republicans (two Black) and a Labor Party member, all of whom had been supported by Black voters who had been subjected to intimidation and fraud.
Congress adopted much of the Republican program, including bringing two states into the union that might give Republicans extra representation in the Senate. The House also adopted a bill to permit Federal supervision of Congressional elections to prevent suppression of African-American voters, but the bill died with a Senate filibuster, and with it died the basic civil rights of millions of Americans for another 75 years.
The Republican economic program turned out to be unpopular, and they were punished at the polls, losing 89 of 176 House seats. The triumphant Democrats promptly re-instated the disappearing quorum. But two years later, Reed, in the minority, used the disappearing quorum with the explicit goal of ending the tactic, until finally the Democrats were compelled to re-adopt his rule — although only after enduring seven and a half months of delay and embarrassment.
The Evolution of Obstruction in the Senate
As in the House, minorities in the Senate have devised ways to obstruct the majority. These practices are the result of evolution, not design or “intent of the Framers,” as can be seen in these key events in the history of the “filibuster.”
- In 1806, the Senate streamlined its rules at the suggestion of Aaron Burr, in the process eliminating the Previous Question motion, thus inadvertently creating the possibility of obstruction via unending debate.
- Some 25 years later, John C. Calhoun and other southern senators staged a coordinated series of speeches intended to delay legislation, when nearing the deadline for adjournment. The President of the Senate sought to re-instate the Previous Question motion, but backed down in the face of accusations of “despotism of the gag” and trampling of minority rights. Calhoun succeeded only in delaying, not blocking, the bill.
- For many decades after Calhoun’s first coordinated dilatory speeches, attempts to block legislation by debating it to death were rare, and often accompanied by efforts by the majority to install rules to limit debate. At some point in the second half of the century, Senators using these tactics were likened to invasive pirates, or filibusterers. Their filibusters delayed debate, and perhaps forced changes to legislation, but rarely killed bills altogether.
- The 1891 filibuster of the Federal elections bill was distinctive. The majority came very close to passing a rule to limit debate, but ultimately both the proposed rule and the elections bill itself were killed due to filibustering.
- There were on average only two filibusters per session of Congress in the decade before 1917. However in March of that year, in the face of a successful filibuster to prevent the passage of a measure to arm merchant ships, President Wilson called for a rules change. The next day, the Senate met in special session, and faced a problem: would a rule change to limit debate be itself filibustered? Senator Walsh argued that, per the Constitution, the new Senate could adopt new rules, and quoted House Speaker Reed: “Such changes can be made by a majority. This is true even if the rules already adopted provide that two-thirds or any larger number alone shall make changes. The assembly can not deprive itself of power to direct its method of doing business. It is like a man promising himself that he will not change his own mind.” Three days later the Senate adopted a compromise rule to end debate with the approval of ⅔ of those voting, those who favored a simple majority having been outvoted.
- From 1917 to 1964, the filibuster was used primarily by Southern Senators to block civil rights bills, including extremely popular ones such as anti-lynching laws. Many other pieces of legislation passed by majority vote only, and the need to invoke “cloture” was rare. After an epic 74-day filibuster, the Civil Rights Act was finally adopted by the Senate in 1964.
- In 1948, the Majority Leader ruled that the 1917 reform applied only to measures such as bills, not to motions to consider those bills — and thus the rules were effectively returned to the pre-1917 situation. The following year, the Senate agreed to extend the cloture rule to all debatable motions, but with the change that it would apply to ⅔ of the total membership, not ⅔ of those present. This change inadvertently added nominations to the scope of things that could be filibustered. In 1959, a compromise returned the rule to ⅔ of those present.
- Between 1917 and 1960, fewer than two motions to invoke cloture were filed per biennial session. But between 1965 and 1970, each session had 6 or 7 cloture motions filed, as the practice was no longer limited to civil rights bills. From 1961, at the start of every new session of Congress, reformers attempted to lower the threshold to invoke cloture, often invoking the “constitutional option” as Senator Walsh had in 1917.
- In 1972, the Majority Leader, frustrated that the increased use of filibusters were slowing business, created a two-track process so that the Senate could consider other matters while filibustered bills were pending. Because this made filibustering less disruptive — and easier, since no actual speech-making was required — it increased their frequency: there were 24 cloture motions in 1971–72 and 44 in 1973–74.
- At the beginning of the 1975 session, with heightened awareness of the the problem and after weeks of parliamentary maneuvering, reformers were finally able to reduce the cloture requirement from ⅔ to ⅗. This hard-won reform did not eliminate obstruction. The compromise agreement applied the ⅗ cloture threshold to the total membership, not just those present and voting. This change, combined with the two-track policy, inadvertently created the “silent filibuster:” opponents could insist that they wanted to continue debate, and then not even be present on the Senate floor, while forcing proponents to find 60 votes. By the 1990s, the 60 votes became the de facto requirement for any legislation — many in the public didn’t realize that this was completely unlike the situation in 200 years of Senate history. The Democrats enjoyed a 61-vote majority in the post-Watergate Senate of 1975–76. However in the following 45 years, no party has ever held a majority of at least 60 votes with the exception of a period of 72 working days in late 2009 and early 2010.
- In May 2005, Democrats intended to use the cloture rule to block seven judicial appointments, and in response the Republican majority threatened to remove the use of filibusters for judicial nominees. One day before the scheduled vote that would have established a new binding precedent, a bipartisan group of 14 senators announced a deal: they would not filibuster judicial nominations except in extraordinary circumstances, nor would they vote to change the Senate rules. In 2013, the situation was reversed: the Republican minority in the Senate was continually obstructing votes on President Obama’s judicial nominees. In response, the Democrats eliminated the supermajority requirement for judicial nominees except for nominees to the U.S. Supreme Court. In 2017, it was the turn of the Republican majority: they broadened the precedent to include Supreme Court nominees. In both 2013 and 2017, the cloture rule was changed through parliamentary slight-of-hand. Lacking the ⅔ majority to officially change the rules, the Majority Leader raised a point of order declaring that only a simple majority was needed to end debate on judicial nominations. When the Chair overruled the point of order, the Majority Leader appealed the ruling. A majority of the full Senate voted to overrule the overruling, thus creating a new precedent — effectively amending the rules without changing the text.
Reconciling the Filibuster
In 1980, Congress modified the Congressional Budget Act, originally adopted in 1974, to expand the window in which budget reconciliation bills could be adopted. Alert Senators noticed that the Act limited debate on reconciliation bills to 20 hours — therefore eliminating the possibility of obstruction via unlimited debate. Starting in 1980, Congress used the reconciliation process almost every year to pass many significant pieces of legislation. At the instigation of Minority Leader Robert Byrd, the Senate in 1985 adopted rules to prevent non-budgetary (“extraneous”) matters from being included in reconciliation bills, in order to preserve the possibility of obstructing most legislation.
Reconciliation nevertheless remains a key vehicle used to adopt legislation, including the two major initiatives of the Trump era: the 2017 tax cuts and the (ultimately unsuccessful) attempt to repeal the Affordable Care Act.
The newly elected Democratic majority is using the reconciliation process for its first major legislative effort, the American Rescue Plan Act of 2021. Many policy priorities cannot be included due to the Byrd Rules. For example, the Senate Parliamentarian, a senior staffer, ruled that a change to the minimum wage is extraneous. Senators Bernie Sanders and Elizabeth Warren called on the Vice President to overrule the decision of Parliamentarian in order to include the minimum wage, and possibly other items, in reconciliation. But the Democratic leadership has nixed this option.
In addition to limiting the scope of legislation, the reconciliation procedure limits its timing. Because no budget resolution was adopted in 2020, the current Congress will have a second opportunity to adopt legislation through the reconciliation process this year — but then not again until the following year.
During the Obama administration, Senate Republicans decided that vetoing all legislative efforts — no matter how “bipartisan” — was the best way to gain political advantage, and their effort was rewarded by voters. Following that experience, no one today believes that the needed 10 Republican Senators will agree to end debate on any substantial piece of legislation in the current Congress. The Democrats’ legislative agenda, outside of reconciliation bills, is thus completely dead — unless they force a rules change.
An End to Obstruction in the Senate?
More and more Democrats are coming around to the belief that they have no choice except to restore majority rule in the Senate. With each additional bill adopted by the House but obstructed in the Senate, even reluctant Democratic Senators will be forced into supporting rules reform. Obstruction threatens almost all of the agenda that Democrats were elected to pursue. As Republican state legislatures seek tighter voting restrictions and gerrymandered districts, the For the People Act, recently adopted by the House, becomes an even more vital piece of legislation for the Democrats’ political future — and for democracy.
The 2013 and 2017 stealth rule changes provide a path to finally re-establish the majority-rule Previous Question motion that was eliminated in 1806. The Republicans will use every parliamentary tactic to prevent that outcome. Minority Leader Mitch McConnell threatens that if the Democrats eliminate the supermajority requirement he will create a “scorched-earth” Senate via delaying tactics such as refusing consent on routine items and frequent quorum calls to keep business to “a snail’s pace.”
Yet more radical action may be necessary in the face of this obstruction. The President of the Senate could entertain a non-debatable constitutional point of order to suspend the rules. If a majority votes in favor, the Senate would operate under default standard parliamentary rules while it develops revised rules to prevent obstruction— which is exactly what Speaker Reed did in 1890.
Today’s de facto 60-vote supermajority requirement to get almost any legislation through the U.S. Senate is a recently created by-product of two centuries of struggles, compromises, and unintended consequences. It is not part of the original design of the senate — or any other design. The “allow the minority to debate” argument has always been a smokescreen — and a particularly obvious one today since Senators prevent debate from ending without actually debating or even being present. Yes, Senators were supposed to be few in number and were given very long terms. But decisions were intended to be made by majority rule, “the vital principle of Republican Government” per Founder James Madison.
President Wilson’s statement of 1917 is still germane 100 years later:
The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible. The remedy? There is but one remedy. The only remedy is that the rules of the Senate shall be so altered that it can act.
Congressional Research Service. 2011. Senate Cloture Rule: Limitation of Debate in the Congress of the United States and Legislative History of Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule)
Catherine Fisk & Erwin Chemerinsky. 1997. The Filibuster, 49 Stanford Law Review 181–254.
Caroline Fredrickson, October 2020. The Case Against the Filibuster. The Brennan Center for Justice.
Gold, Martin B. and Dimple Gupta. 2004. “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster.” Harvard Journal of Law & Public Policy 28,(1) Fall: 205–272
Koger, Gregory. 2010. Filibustering: A Political History of Obstruction in the House and Senate. U. of Chicago Press.
Barbara W. Tuchman. December 1962. Czar of the House. American Heritage. Volume 14. Issue 1.
Professor Gregory J. Wawro, Columbia University. April 22, 2010. “The Filibuster and Filibuster Reform in the U.S. Senate, 1917–1975.” Testimony Prepared for the Senate Committee on Rules and Administration.