The origins of the filibuster—and how it came to exasperate the U.S. Senate

The concept of making marathon speeches to block legislation has been around since ancient Rome. But U.S. lawmakers have made this tactic notorious—and created a new form of "stealth" filibusters.

Appropriately, its name comes from a Dutch word for “pirate”—because the filibuster is, in essence, a hijacking of debate in the U.S. Senate. It’s also one of the most controversial traditions in American politics.

To win approval in the Senate, most legislation requires only a simple majority, or 51 votes. But to bring an end to the debate over a piece of legislation, the threshold is higher: the votes of three-fifths of the members present, or 60 senators, are required to cut off debate. If there aren’t enough votes for cloture, a single senator who refuses to yield the floor during a debate, or delays it with unnecessary parliamentary motions, can prevent the end of debate—and thus, the passage or defeat of the legislation.

Defenders of the filibuster argue that it protects the rights of the minority party and encourages consensus. Opponents complain that it subverts majority rule and creates gridlock. Both sides in the argument claim to have history—and the U.S. Constitution—on their side.

What’s there to know about the origins of the filibuster? Here’s a look at how it became so prevalent, why its use exploded during the civil rights era, and how it evolved into the present day’s so-called “stealth” filibuster.

The origins of the filibuster

The concept of the filibuster has been around since ancient Rome. The Roman senate didn’t limit how long its members could speak—a fact that historians believe was first exploited in 60 B.C. by Cato the Younger in a debate over contracts with private tax collectors. Cato also used the filibuster to thwart the agenda of his political enemy, Julius Caesar. His tactics would prove enduring, emerging more than two millennia later in the governing of a new republic.

The U.S. Constitution doesn’t specifically address the filibuster. Although some of the framers made clear that they supported majority rule—including Alexander Hamilton, who described the minority veto as “a poison” in the Federalist Papers—the Constitution left it up to lawmakers to set the rules that would govern their chambers.

The original rulebooks of both the Senate and the U.S. House of Representatives included a rule—known as the “previous question” motion—that allows a simple majority of voting members to end debate. It’s not entirely clear how the rule was understood at the time, as it was also used to postpone debates. But today the motion is understood as one that prevents the minority party from overruling the majority.

Though the lack of early records leaves much unknown about filibuster efforts, lawmakers clearly understood the power of speech as a dilatory strategy. In 1789, Pennsylvania Senator William Maclay decried Southern senators’ attempt to delay a vote establishing Philadelphia as the nation’s capital. As he noted in his journal, “the design of the Virginians and the Carolina gentlemen was to talk away the time, so that we could not get the bill passed.” (Why isn't Washington, D.C. a state? It started with a drunken mob.)

Still, early filibusters are thought to have been infrequent. By 1806, the Senate had invoked its “previous question” motion so rarely that the body deleted it in an effort to streamline its rulebook. But in the House, things took a different turn. In 1811, Barent Gardenier, a representative from New York, tried to filibuster a proposed trade embargo against Great Britain. His colleagues weren’t having it: They invoked the “previous question” rule—which they had only ever used to pause debate—to end his remarks. That precedent now prevents filibusters in the House.

Some political scientists argue that the Senate intentionally did away with the rule because they wanted to create the opportunity for unlimited debate. Others believe that legislators simply didn’t see the need for a specific tool to end debate since it had rarely been an issue. Either way, however, the absence of the “previous question” rule paved the way for the rise of an unchecked filibuster.

A need for cloture

One of the earliest coordinated attempts to block legislation occurred in 1837, when allies of Democratic President Andrew Jackson sought to expunge the Senate’s earlier censure of him. Members of the opposing Whig party mounted a filibuster to prevent the expungement, yet were unsuccessful.

By the 1850s, the practice became popular enough to earn its name, which was inspired by the mercenary sailors called “filibusters” who attempted to overthrow governments in South and Central America. In the decades that followed, senators on both sides of the aisle filibustered bills concerning economic issues as well as slavery and civil rights.

The frequency of filibusters was starting to become a problem. Things came to a head on March 3, 1917, when the Senate was considering arming merchant ships to protect them from German attacks during World War I. Fearing the bill would lead the U.S. into the war, Republican Senator Robert La Follette launched a filibuster with only 26 hours to go until the Senate’s term ended.

Fed up with the Senate’s successful filibuster, President Woodrow Wilson demanded that the body adopt a rule to prevent “[a] little group of willful men, representing no opinion but their own” from hijacking future legislation. After intense negotiations, on March 8 the Senate adopted a “cloture” rule that would allow a two-thirds majority of lawmakers to cut off debate.

It was a high bar, however. The Senate would successfully invoke cloture only five times in the next 46 years—including in 1919 to defeat the ratification of the Treaty of Versailles, which Wilson had negotiated to end World War I. (This rebel lawmaker often breaks into song while filibustering in Nebraska.)

Filibustering the civil rights movement

Rather than die out, however, filibusters ballooned in the 20th century—and were used more systematically than ever before to block civil rights legislation. As Columbia University political science professor Gregory Wawro testified in a 2010 Senate hearing, “it is undeniable that such reforms became the first type of legislation where filibusters were perennially anticipated.”

Intent on keeping the white supremacist status quo of the Jim Crow era, Southern senators formed a minority faction powerful enough to prevent cloture. They successfully filibustered several bills that would have made lynching a federal crime as well as those that would have outlawed the poll taxes that kept Black people from voting.

In 1957, South Carolina Senator Strom Thurmond set the current record for the longest continuous filibuster: He talked for 24 hours and 18 minutes to try to prevent passage of the Civil Rights Act of 1957. Thurmond’s efforts failed, however, and the bill became law, creating a federal commission on civil rights and some voting rights protections.

Seven years later, a coalition of Southern senators filibustered for 60 working days against the landmark Civil Rights Act of 1964, which offered more robust voting rights protections and banned racial discrimination in public places and in the workplace. Ultimately, the Senate majority cobbled together 71 votes to invoke cloture and pass the bill.

As the use of filibusters grew, so did a movement to reform cloture. Wawro notes that “numerous proposals” were introduced throughout the 1960s to make it easier to end debate. In 1975, after an intense battle, reformers finally succeeded in reducing the cloture threshold to three-fifths—a slightly smaller supermajority that remains the standard today.

The ‘stealth’ filibuster of the modern era

The turmoil of the civil rights filibusters opened the floodgates for all types of legislation to become subject to filibuster. But with an increasing workload, the Senate began to look for a way to handle filibusters that wouldn’t tie up other legislation. Rather than the stemwinders of the past, the Senate is now plagued by the “stealth” filibuster.

Today, senators can delay or block a bill simply by signaling their intent to filibuster, write legal scholars Catherine Fisk and Erwin Chemerinsky: “A credible threat that 41 senators will refuse to vote for cloture on a bill is enough to keep that bill off the floor.” Instead of risking a protracted debate, the Senate majority often waits to introduce legislation until it has enough support for cloture.

As a result, modern presidents have struggled to pass legislation. Former President Bill Clinton reportedly hoped to eliminate filibusters after they stymied his healthcare initiative. Filibusters have also often held up political appointments—leading both parties to take action. In 2013, Democrats used a procedural tactic called the “nuclear option” to lower the cloture threshold to 51 for confirming lower-level nominees. Although Republicans decried it at the time, four years later they went nuclear too by reducing the confirmation threshold for Supreme Court nominees. (Here's why the Supreme Court has nine justices—and how that could change.)

Calls for reform have grown alongside the “stealth” filibuster. Some suggest rewriting the Senate’s rules to lower the cloture threshold; others suggest requiring lawmakers to conduct old-school “talking” filibusters instead of merely threatening them. (These have occasionally occurred in recent years. In 2010, independent Bernie Sanders filibustered a bipartisan tax deal for eight and a half hours. A few years later, Republicans Ted Cruz and Rand Paul each mounted lengthy filibusters against Obama Administration priorities.)

It’s unclear if the push to reform the filibuster will have any effect. After all, the filibuster still has its supporters—particularly among lawmakers who find themselves in the minority party after an election swings the Senate’s balance of power.

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