By Evelyn Li
The United States government is predicated on a system of checks and balances. But one such check appears nowhere in the Constitution and is the biggest hindrance to a productive federal government.
The filibuster is a procedural rule in the Senate that allows senators to delay or prevent voting on a piece of legislation, traditionally through a prolonged speech that extends the debate until the filibustering Senator yields the floor — which never actually happens without the vote of a supermajority of other Senators. Senators in opposition to a bill are motivated to filibuster when they know a majority intends to pass it into law. Though the specific mechanisms of the filibuster have changed greatly over time, the filibuster has retained its core anti-democratic function: to empower a deep minority in the Senate to slow down, and even stop, movement on legislation.
At the start of the republic, there was no filibuster. But in 1805, Vice President Aaron Burr gave a farewell address in which he exalted the Senate, though he recommended the body streamline its rules. Burr advocated the elimination of the “motion to move to the previous question” procedure, which allowed any senator to propose an end to debate and call senators to a vote. In 1806, the Senate followed his advice and eliminated the only way to prevent a senator from continuing debate.
It took senators decades to realize that unlimited discourse was now permitted. The first official filibuster did not occur until 1841, and it was over the largely trivial matter of hiring different Senate printers. For the rest of the 19th Century, there was technically no formal way for the Senate to end a debate without a speaking Senator voluntarily yielding the floor. So even one single Senator could, in theory, grind an entire branch of government to a halt.
Despite its power, the filibuster was little-noticed for a century, until it nearly caused a crisis. In 1917, ahead of World War I, eleven senators filibustered a bill approving President Woodrow Wilson’s decision to arm American merchant vessels for twenty-three days. An increasingly-desperate Wilson called a special session of the Senate during which senators, at the president’s urging, wrote a cloture rule allowing debate to be stopped by two-thirds of the senators in attendance voting to end debate.
Still, for the most part, the filibuster was very rarely used. But then segregationists began employing it against civil rights legislation. South Carolina Senator Strom Thurmond holds the record for the longest filibuster; he spoke for 24 hours and 18 minutes in an unsuccessful attempt to block the Civil Rights Act of 1957.
In 1975, Senators Walter Mondale and James Pearson advocated to lower the percentage of Senators needed to shut down a filibuster from two-thirds to three-fifths. This threshold applies to the entire chamber, not just those present and voting. The proposal was adopted and is what is in place today: 60 senators have to agree to end debate and call for a vote.
Modern-day filibusters no longer require long, showy speeches. Multiple bills can remain pending on the Senate floor at a time, so someone merely needs to indicate their intention to filibuster and unless the majority can whip 60 votes to end debate, Senate leadership will merely move on to another topic.
The underlying mechanisms of the filibuster are worth repeating: Senators wishing to impede the passage of a certain piece of legislation do not need to convince 51 of their colleagues (a simple majority) to vote against it.They simply need to coordinate 41 senators to prevent a vote from ever taking place.
Effectively, every piece of legislation that passes in the Senate can only do so with supermajority approval.
A supermajority requirement to pass legislation in any legislative body is undemocratic. But a supermajority requirement in the United States Senate can be particularly undemocratic. With each state, regardless of population, having two senators, some senators represent hundreds of thousands of voters while others represent millions. The skew is so pronounced that it is possible for 41 senators, elected by 18 percent of the population, to invoke a filibuster, overriding the will of 59 senators elected by the other 82 percent.
The frequency of filibusters has increased astronomically. Between 1917 and 1970, Senate records show 60 cloture votes to break a filibuster. Between 2009 and 2015 alone, there were more than 500 cloture votes. And these votes have had major consequences.
In 2009, for example, Senate Democrats were in the midst of writing and whipping votes for the Patient and Affordable Care Act (“Obamacare”). The party held a supermajority of seats: 59 seats. Senator Joe Lieberman of Connecticut, an Independent who caucused with the Democrats, effectively served as the 60th Democrat. Lieberman, however, strongly objected to any version of the healthcare bill that included a public option and threatened to join Republicans in filibustering such a bill: “I can’t see a way in which I can vote for cloture on any bill that contained a creation of government-operated and run insurance company,” he said. Needing his crucial vote to prevent a filibuster, the Democrats submitted a compromised bill. One person, representing a state of 3 million people, held hostage 59 other senators and ultimately decided the current state of healthcare in this country.
The filibuster continued to define the Obama presidency. Soon after voting on healthcare, the Senate had to scale down energy reform meant to mitigate climate change because leadership couldn’t break the filibuster. Cap-and-trade, originally on the agenda, was deemed too ambitious. Then majority-leader Harry Reid said, “It’s easy to count to 60. I could do it by the time I was in the eighth grade. My point is this, we know where we are. We know we don’t have the votes [for a bill capping emissions].”
One of the most infamous filibusters took place in 2013. In the wake of the mass shooting at Sandy Hook Elementary School, Senators Joe Manchin, a Democrat of West Virginia, and Pat Toomey, a Republican of Pennsylvania, co-sponsored a “common sense” universal background check gun control measure. This bipartisan effort fell six votes short of the 60 needed for cloture. It would have passed 54 to 46 if not for the filibuster. According to a Pew Research Center poll from the same year, such background checks had the support of 73% of Americans.
The Framers intended the House majority, the Senate majority, and the President to serve as the veto points in our legislative process. These three should be enough to check and disperse power. By a historical quirk, the filibuster gave another veto to a group as small as 41 senators. And we suffer the consequences: popular ideas are blocked at every turn. The government consistently fails to enact the will of the people.
Some defend the filibuster as a bulwark against the “tyranny of the majority”, a way to ensure change happens slowly and deliberately. But the filibuster is not saving us from “the tyranny of the majority.” The protection of minority opinions is already embedded in the design of the Senate, with smaller states having as much power as bigger states. Instead, the filibuster transforms the Senate from a body in which minorities have rights to a minority-rule system unable to accomplish anything.
Not only is the filibuster inherently undemocratic, it also prevents other aspects of democracy from being improved upon. Last year, the House passed H.R.1, the For The People Act, an omnibus bill to address big money special interests, gerrymandering, voter suppression, and more. HR 1 has no chance to become law as long as the filibuster exists. Mitch McConnell has publicly stated as much. But with the filibuster out of the way, a pro-democracy Senate could finally pass these fundamental reforms next year.
The best reform would be to get rid of the filibuster completely. However, many people, including sitting Senators, are unwilling to go that far. Fortunately, there are other intermediate reforms that could greatly improve the process. Building on Mondale and Pearson’s successful resolution, the votes needed for cloture could be lowered again — to 55, for example.
Alternatively, the filibuster could be eliminated for certain situations (though this would be a weak reform). In 2017, Mitch McConnell rewrote the Senate rules to prevent Democrats from filibustering the confirmation of Neil Gorsuch to the Supreme Court. This came after Harry Reid made a similar move in 2013. Both set a precedent for expanding the kinds of decisions that can be fast-tracked and protected from a filibuster.
Lastly, to keep the tradition of the filibuster alive, the Senate could merely bring back the talking filibuster, in which a Senator has to be speaking on the floor of the Senate to continue a filibuster. This way, legislation will likely only be delayed instead of obstructed entirely, and the culture of valuing all opinions on which the Senate prides itself can be upheld.
Any of these changes would be preferable to the status quo: a Senate rendered weak and ineffective.
Evelyn Li is an Equal Citizens Fellow and incoming student at the University of Chicago.