filibuster—an action such as a prolonged speech that obstructs progress in a legislative assembly while not technically contravening the required procedures.

cloture—the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and therefore end a filibuster.

The word filibuster does not appear in the Constitution. The word is originally from the Dutch vrijbueter (freebooter), with contributions from the Spanish and French. The genesis of the filibuster is arcane and the history voluminous.

Filibusters were uncommon in the nineteenth century. In 1917, the Senate created Rule 22, which allowed cloture to bring a bill or other matter to a vote. Between 1917 and 1975, cloture required only a supermajority (two-thirds) of senators who were present and voting. “Present and voting” was defined as being in or near the Senate chamber. This meant that cloture could be invoked by a small number of senators (e.g., two out of three who were present and voting). In 1975, the cloture requirement was changed to three-fifths of all senators, none of whom needed to be in Washington to count. Cloture became very difficult to invoke with that rule, making the simple threat of a filibuster enough to stall legislation.

Filibusters increased after 1951 as Southern senators worked to block civil rights legislation. Strom Thurmond infamously conducted the longest filibuster on record, twenty-four hours and eighteen minutes, in opposition to the Civil Rights Act of 1957. This was not what the Framers intended when they wrote the Constitution. James Madison and the other Framers viewed the Senate as a body that would debate measures in meaningful ways, rather than reading from the Bible or recipe books. When the membership of the Senate was smaller and communications slower, the idea made sense. But the rise of political parties in the early nineteenth century and the splits over policy resulting from the Civil War and Reconstruction—not to mention our more recent political polarization—have enabled a minority party to drive the federal legislative agenda. The simple threat of a filibuster is now enough to kill prospective legislation and nominations; tweets and emails suffice to sink important agendas. The Senate today is anti-majoritarian.

Is the filibuster good or bad? Mostly, it is a mistake that was allowed to grow for partisan purposes over two centuries. Those who believe the filibuster resembles anything like Jimmy Stewart’s version in Mr. Smith Goes to Washington are mistaken. Republicans, currently the minority in the Senate, have threatened that elimination of the filibuster will be paid back in full if and when they regain a Senate majority. The reality is that there have been more than twenty years of legislative gridlock, in large part due to the threat of filibusters.

There is so much to be done to move our nation forward that requires passing laws: voting rights, solving inequality, healthcare, climate change, and dealing with over 400 years of racism. The answer is not abolishing the filibuster but deciding that a minority that wants to preserve it must endure pain. Senators should have to stand and deliver their objections, on their feet, yielding the floor only because of fatigue or calls of nature. Senate work may grind to a halt, but honest debate—not obstruction by the minority—was why the Framers created the Senate. The filibuster as it stands impairs governance.

References:

▪         We Already Got Rid of the Filibuster Once Before (The Atlantic)

▪         The History of the Filibuster (brookings.edu)

▪         The Senate Filibuster Is a Monument to White Supremacy (The Atlantic)

—Thad Zajdowicz, Book Corner Co-editor