Fri. Dec 2nd, 2022

The filibuster is a term used frequently by people in Washington, but few Americans understand it, at least according to recent polling. The procedural tactic has been used by Democrats and Republicans at key moments in modern U.S. history to prevent legislation from being considered in the Senate. 

In popular culture, the most famous example of a filibuster came from Hollywood, when fictional Sen. Jefferson Smith, played by Jimmy Stewart, staged one in the 1939 film, “Mr. Smith Goes to Washington.” That was the traditional filibuster, in which a senator monopolizes the floor for as long as he or she can talk while standing. A sympathetic Senate colleague might give the filibustering senator some relief by asking the senator to pause for a question, enabling the filibusterer to make a quick run to the bathroom.

Sen. Huey P. Long of Louisiana filibustered several times in the 1930s over economic matters, and Sen. Strom Thurmond of South Carolina famously staged one for 24 hours and 18 minutes — still the record — against civil rights legislation in 1957.  

The filibuster is grounded in the tradition of unlimited debate, the basis of the U.S. Senate’s  claim to being “the world’s greatest deliberative body.” Its defenders note that the ability to talk at length is designed to protect minorities from potential overreach of the majority, or to at least slow down consideration of sweeping legislation. It could ostensibly also give parties time to forge a compromise, though the most prominent recent example of this is probably also fictional — from the second season of “The West Wing” (it has a terrific explanation of the filibuster).

Congress Filibuster Explainer
 In this Aug. 29, 1957, file photo, Sen. Strom Thurmond, R-S.C., waves as he leaves the Senate chamber at end of his 24 hour, 18 minute filibuster against the Civil rights Act. 

/ AP


Trying to cut off unlimited debate was a real issue back in the 19th and early 20th centuries. At different times, senators sought to prolong debate indefinitely — over establishing a national bank, or ratifying treaties, or, perhaps most famously, over civil rights legislation in the 1950s and 1960s — in order to prevent those measures from becoming law.

In 1917, frustrated by the extended debate of several issues, senators took steps to stop filibusters by passing a rule allowing two-thirds of members to invoke “cloture,” which would bring an end to debate and allow a bill to receive a Senate vote. But frustrations persisted because it was so difficult to get that many senators to agree to end debate, so in 1972, senators voted again to lower the threshold to three-fifths of all senators — 60 out of 100.  

That’s why there’s so much talk about a “super majority” and the need to secure 60 votes to pass certain pieces of legislation and why in the modern era, having 50 senators plus the vice president’s tie-breaking vote — as Democrats currently do — isn’t nearly enough to achieve certain legislative goals. 

The rise of the silent filibuster

You won’t see much actual filibustering on the Senate floor anymore, thanks to a 1972 rule instituted by the Senate that made filibustering far easier: the two-track system. This enabled senators to filibuster while considering other legislation, ushering in what’s known as the “silent” filibuster. Instead of talking on the floor for hours on end, a senator may stop a bill from being considered merely by notifying Senate leaders that he or she intends to block a vote — with the support of at least 40 other senators. That rule remains in effect today.

In more recent times, Sen. Ted Cruz of Texas held the Senate floor for hours at a time in opposition to budget legislation, but it was not considered a formal filibuster, since he didn’t have the support to stop the bill from passing — eventually. And in 2013, Sen. Rand Paul of Kentucky and others held the floor for a day over concerns over the use of unmanned aerial drones.  

Can a filibuster be used to block presidential nominees? 

Not anymore. A series of rules changes adopted in the 2010s allow a simple majority of senators to end debate on legislative and judicial nominees. That takes much of the political drama out of fights over Cabinet or U.S. Supreme Court nominees — if the party that controls the White House also controls the Senate. What happens when the White House and Senate are controlled by different parties? 

Ask Attorney General Merrick Garland. After the death of Supreme Court Justice Antonin Scalia in Feb. 2016, Garland, then the chief judge on the D.C. Court of Appeals, was nominated to the Supreme Court by Democratic President Barack Obama. At the time, the Senate was controlled by Republicans, and GOP Sen. Mitch McConnell was majority leader. He never allowed Garland to receive a confirmation vote, arguing at the time that the American people should weigh in on the next Supreme Court justice.  The seat remained open until then-President Donald Trump selected Judge Neil Gorsuch to fill the vacancy.

Who supports a filibuster? Who doesn’t? 

Most Democrats say they’d end it, as a general matter, according to a CBS News poll from Jan. 2022. Two-thirds of Republicans say they’d keep it.  

But the partisan split appears strongly connected to more immediate policy concerns. Of the Democrats who feel it’s very important to pass a federal voting rights bill, an even higher portion, seven in 10, would generally end the filibuster. That, of course, is the measure over which some Democratic leaders have discussed ending it.  

President Joe Biden has called on the Senate to make an exception to its filibuster rules to allow Congress to codify abortion protections and privacy rights previously afforded under Roe v. Wade

In March, he voiced his support for temporarily changing Senate rules to allow a simple majority to pass the bill, something he generally opposes. 

“The most important thing to be clear about is, we have to change — I believe we codify Roe v. Wade in the law, and the way to do that is to make sure Congress votes to do that,” Mr. Biden told reporters at a news conference at the NATO conference in Madrid. “And if the filibuster gets in the way, it’s like voting rights, it should be — we provide an exception for this. We require an exception to the filibuster for this action.”   

But there appear not to be enough votes in the Senate to allow for such a rule exception.   

Do most Americans even know what a filibuster is? 

Well, it isn’t exactly on every American’s mind: Our January poll found a third of Americans haven’t heard enough about it to say whether it should be kept or ended.  That shouldn’t be surprising, since outside of the most politically engaged, most Americans don’t closely follow Senate procedure. 

Younger people under 30 are the most likely to have not heard enough about it to offer an opinion; older Americans mainly have, the poll found. 

By the way, where does the word filibuster come from? 

According to the Senate Historian’s Office, the term began appearing in American legislative debates in the 1850s. It’s derived from the Dutch word for “freebooter” and the Spanish word “filibusteros,” pirates who raided Caribbean islands.  The historian notes one early usage of the term by Mississippi Senator Albert Brown, in 1853, who observed “my friend standing on the other side of the House filibustering.” 



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