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| Published: | 2013-Jan-19 |
| Last Updated: | 2021-May-24 |
| Principal Writer: | Rob Dennis |
 | Understanding The Issue |
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The Senate
(Filibuster reform)
2013 (SR-4)
(2014) NLRB v. Noel Canning
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History of the Filibuster
The term "filibuster" is derived from the Spanish filibustero, which came from the Dutch vrijbuiter, meaning pirate, privateer or robber.
Supporters of the filibuster claim it is consistent with the Constitution's framers' intent to counter "the tyranny of the majority." They point to James Madison's description of the Senate as a "necessary fence" against a fickle majority, and to a series of constitutional checks and balances including the Electoral College and the design of the Senate itself.
"The Senate's smaller size, longer terms and state-wide constituencies all predispose the Senate to be a more moderate, measured body less impacted by the shifting winds of public opinion," Robert Dove, the Senate's parliamentarian for 13 years, told the Senate Committee on Rules.
However, the Constitution does not grant the Senate the right to unlimited debate. It merely says each house of Congress shall determine its own rules. And the emergence of the filibuster actually was an accident of history.
"The most persistent myth is that the filibuster was part of the Founding Fathers' constitutional vision for the Senate," Sarah Binder, senior fellow at the Brookings Institution, told the committee. "However, when we dig into the history of Congress, it seems that the filibuster was created by mistake."
The House and Senate rulebooks both initially contained a "previous question" motion allowing a simple majority to cut off debate. That changed in 1805, when Vice President Aaron Burr (under President Thomas Jefferson) advised the Senate to streamline its rules, and the motion was dropped.
Nobody at the time had used the rule to cut off debate. It took senators decades to exploit its absence. The first filibuster didn't take place until 1837. It remained a little-used tactic until the Civil War, when the Senate grew larger and became more polarized along party lines.
As the number of filibusters grew in the late 19th and early 20th centuries, Senate leaders repeatedly tried to ban the practice. It still wasn't widely used by modern standards. According to the Congressional Research Service, there was an average of fewer than three filibusters per Congress from 1907 to 1917, when the Senate reformed the filibuster by introducing cloture, requiring a two-thirds vote to end debate.
Between 1917 and 1975, though, filibusters became firmly entrenched as a strategy of obstructionism. During that period, the filibuster was used to defeat 16 pieces of legislation that had the support of the majority in the House and Senate, as well as the president, according to a study by Binder and Steven Smith. Southern Democrats used it to block for years the passage of Civil Rights legislation.
In 1975, the number of votes needed to invoke cloture was reduced to three-fifths of all senators - normally 60. While this would seem to have made it easier to pass legislation, since that time the Senate has become more gridlocked than ever before.
In 2013, the Democratic majority eliminated the filibuster for Cabinet appointments and judicial nominations (other than for the Supreme Court).
In 2017, the Republican majority eliminated the filibuster for Supreme Court nominees.
For more, read the History.com article.
Filibuster by the numbers
To end a filibuster, the majority must file a cloture motion. Three-fifths of all senators (60 if there are no vacancies) must vote in favor of the motion to bring debate to a close (meaning the bill can be voted on).
Since many filibusters in the modern Senate are "silent" filibusters or merely threats to filibuster, in a practical sense a cloture motion actually would allow debate to begin - rather than quashing it.
The Senate does not keep a count of filibusters. Even if it did, the count would be understated because of the number of bills that are stopped due to simple threats. Therefore, one measure of the number of filibusters is the number of cloture motions - which are recorded.
For the first 50 years after cloture was introduced in 1917, only a handful of motions were filed every year. That rose sharply in the 1970s, increased further in the 1980s and 1990s and exploded in the past several Congresses. During President Barack Obama's first term, 252 cloture motions were filed.
Click on the graph for more information about the sharp rise in cloture motions in recent years.
The numbers can be misleading, though. Different majority leaders have different styles of floor management, with some choosing not to call a cloture vote unless they're sure it will be successful.
Still, there is other evidence that obstructionism has risen sharply in recent years. A 2009 study by UCLA political scientist Barbara Sinclair found that only 8 percent of major legislation in the 1960s was affected by threatened or actual filibusters. That number had risen to 27 percent by the 1980s and 51 percent in the 1990s. It rose to 70 percent by 2007, after Democrats had taken control of Congress.
Silent filibuster is "lobbyist's dream"
Ending secret holds would "take a weapon out of the arsenal of lobbyists," Sen. Ron Wyden told the Senate Committee on Rules in 2010.
"A lobbyist's dream is to get some senator to put a secret hold on something. The lobbyist's fingerprints are not on it. There is no public debate. If you can get a United States Senator to put an anonymous hold on a bill, it is a lobbyist's jackpot."
Senators have voted unanimously several times over the years to ban anonymous holds, but the bills were changed in conference committee with the House - in secret.
The Senate again tried to abolish the practice in 2011 by requiring a senator who places a hold to be named or remove it within two days. But two or more senators can circumvent the new legislation by "tag-teaming" - alternately placing and removing holds.
The late Sen. Robert Byrd was an ardent proponent of the filibuster, arguing that the founding fathers intended the Senate to allow for "open and unlimited debate and the protection of minority rights." But he also said the "silent filibuster" is an abuse of the process.
"A true filibuster is a fight, not a threat or a bluff. For most of the Senate's history, senators motivated to extend debate had to hold the floor as long as they were physically able. ... Such undertakings required grueling personal sacrifice, exhausting preparation and a willingness to be criticized for disrupting the nation's business. Now, unbelievably, just the whisper of opposition brings the world's greatest deliberative body to a grinding halt."