Filibuster

Fall 1999
Towson University
Department of Political Science

The United States Senate, often thought of as the world’s greatest deliberating body, has an interesting idiosyncrasy that can hold up the entire process of debating and passing legislation. This potential clog in the plumbing of legislating is called the filibuster. Basically, the filibuster is the ability of one or more senators to hold the floor and refuse to yield it to another senator from the opposing view. The senator or group continuously talk until the bill is dropped, the senators become tired of talking, or a supermajority votes to stop them. This paper will explore the filibuster, taking special care in exploring its origins, the growth of its use, types of bills it’s used on, and if reforms of Senate rules regarding the filibuster are necessary and possible.

What is the filibuster?

It might be easiest to start with where the word filibuster came from. In the book Politics and Principle, Sarah Binder and Steven Smith set forth the history of the word in a section they call “From Freebooters to Filibusters .” The word filibuster only actually came into play in the senate in the late nineteenth century. According to Binder and Smith, the origin of the word appears to be a cross between the English and Dutch for free booty, a term to describe looters who lived on others’ booty and spoils. The Dutch was translated into English as flibutor, and then became freebooter. The word slowly became filibuster and was used in the Senate to describe Senators who had developed techniques for holding up legislation that they were opposed to.

The ability to filibuster has its roots in the founding period and in the Standing Rules of the Senate. It is important to note that filibusters are not the normal occurrence, and in fact they are rarely employed. Filibusters can only be used when a Unanimous Consent Agreement is not in place, meaning that all Senators have not agreed to limit debate. If all the Senators do agree to limit debate through the Unanimous Consent Agreement, which most often is the case, the filibuster is no longer an option. The ability to filibuster is drawn from the rule of unlimited debate. The senate is permitted to debate on a bill unlimitedly, unless before debate, all Senators agree to limit their ability to debate that issue. Thus, on non-controversial matters, Senators will usually waive their right to unlimited debate.

“Generally characterized in the public mind as a non-stop speech, a filibuster in the fullest sense employs every parliamentary maneuver and dilatory motion to delay, modify, or defeat legislation. ” So, the filibuster is not just one senator rambling on and on to hold up the floor of the Senate, as is characterized by Jimmy Stewart, in “Mr. Smith goes to Washington.” Although, this can be an integral part of it. The filibuster also employs a full arsenal of motions and objections. For example, one senator could add an unlimited amount of amendments to the bill, despite germaneness , and debate them all. In addition he can continually ask that a quorum call be in effect, keeping senators there at all hours. The key to the filibuster is to continually hold the floor and refuse to yield it to anyone but your supporters. If you are the only one filibustering, than you must keep the floor by yourself. One Senator said about invoking a filibuster, “if it takes unanimous consent, object. If not, you make a little speech, suggest and absence of quorum, then…use parliamentary procedures…motions to adjourn, motions to recess… ”

The filibuster is the last resort when it comes to stopping legislation. Most Senators do not want to start a filibuster because it virtually stops all floor action on any legislation, tying the floor up on one bill. Although on the floor it is the last resort, sometimes threatening a filibuster can be a powerful bargaining chip. By threatening to filibuster, Senators are able to give their input on a bill, possibly changing it, or preventing it from even being scheduled. Senator Byrd once said, “In many instances, it’s the threat of the filibuster that keeps a bill from coming up. ”

The Founders and The Filibuster

As I have already stated, the word filibuster was not used in the Senate until the late nineteenth century, thus the founders never had this concept. “There is nothing to suggest that the right to filibuster was a feature of the original Senate. ” It is obvious though, that the founders did want a legislating body that would carefully consider all bills and debate at length on them. In Washington’s words, “we pour legislation in the senatorial saucer to cool it. ” The Senate’s original purpose was to be the stable house in Congress, to take legislation from the House of Representatives and make sure that it was good law, not emotional majority will. 

It is also quite apparent under current rules of cloture, that it would take a supermajority of sixty members of the Senate to pass controversial legislation under Senate rule 22. The framers intent was for a majority to pass legislation, not a supermajority because of the failings of the supermajority with the Article of Confederation. It is apparent in Hamilton’s Federalist number 22 that he was opposed to the need of a supermajority to pass legislation: “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is in it’s tendency to subject the sense of the greater number to that of a lesser number. ”

Also, it is seen that during the founding period that the right of unlimited debate was neither the expectation nor the approved practice. The political scientist Lloyd Cutler points out that they adhered to the precedent of the English parliament that allowed a simple majority to cut off a debate by a motion for “the previous question.” This device was included in sections eight and nine of the rules adopted by the first Senate in 1789, and was in effect until it was removed in 1806 . It appears that the previous question rule was not eliminated to take a stance on unlimited debate but rather because it was unnecessary. Vice President Aaron Burr urged the Senate to remove the rule in his farewell speech because it was being used to postpone decisions, and in his time in the Senate it had only been used once. However, there are other historians who argue that the Senate in 1806 wished to ensure unlimited debate in the Senate despite the original intent by the framers. Edward Kearny and Robert Heineman say in their paper on the filibuster that “the right of unlimited debate in the Senate goes back to 1806, but it was not initiated and not intended by the framers. ”

There, however, is no constitutional framework that says that senators should not have the right to unlimited debate. But, the filibuster which permits a small minority and even one Senator to stop a piece of legislation, was not intended by the framers at all. In fact, it has been argued by some that because the Constitution does lay down the times when a supermajority is needed, (e.g. 2/3 vote for convicting an impeached president and for signing treaties), therefore, only a majority should be needed to pass any legislation. This is further backed up by the Supreme Court Decision in United States v. Ballin, 1892. In this case, Justice David Brewer, speaking for the majority says, “the general rule of all parliamentary bodies is that when a majority is present, the act of the majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case, the terms of the organic act under which the body is assembled have prescribed specific limitations. ”

Thus, I believe it to be shown that despite no explicit constitutional references, the framers did not have in mind the filibuster in the Senate during the founding period. The concept came later as a result of the expulsion of the previous question rule and eventually the adoption of Rule twenty-two.

Why Filibuster?

The original use of the filibuster was employed by senators who believed that the passage of a bill would violate the constitution or was just not a well-written law. Historically, civil rights issues have been the single most common filibustered issues. “Overall, 45 civil rights measures and 289 non-civil rights measures were the targets of filibusters through 1992. ” The range of issues that the non-civil rights measures cover is enormous. The use of the filibuster in today’s political climate has changed significantly since it was originally employed. The measures that are being filibustered are often being held up due to very narrow or parochial concerns.

There are also examples where items are threatened with filibuster for unrelated reasons. These threatened filibusters show up on no charts, but are still sometimes recorded. For example: 

Senator Nathaniel Dial (D-South Carolina) threatened to hold up senate action on a bill that provided for the mergers of the meat packing industry if his separate bill concerning the compensation of an Internal Revenue collector was not considered. One senator indicated that he would object to Dial’s bill, so Dial objected to the consideration of the meat packer’s merger bill. Dial’s threat appears to have been taken seriously because the meat packer’s bill was pulled from the floor. 

It is obvious that Senator Dial was only using the threat of the filibuster for his own personal gain in his state on an unrelated parochial concern.

It should also be noted that filibusters are often a result of partisan interests, and with the civil war period, sectional interests. Now, this is not a change since the earliest filibusters as some might think, but instead it represents a continuation of party lines throughout the history. The chart in Appendix A from the book Politics or Principle, shows some of the issues filibustered or threatened and shows that the majority of them were on partisan or sectional grounds. This trend reflects what we see in filibusters in the modern era, that they are most often partisan in nature.

Thus, traditionally the filibuster was used only in cases of constitutionality but as time has progressed we see a trend in the misuse and trivializaton of the filibuster.

The Move Towards Cloture

As we pointed out earlier in the essay, the supermajority concept is important when talking about filibusters. What is cloture? In simple terms, it is the ability of a supermajority to shut off debate thus ending a filibuster. Any senator may file a motion of cloture providing that sixteen senators have signed it. Two days after a cloture motion is presented to the presiding officer, it is available for a vote one hour after the senate convenes. After cloture has been invoked, the Senators have thirty hours to debate, add amendments, and raise points of order . Once the thirty hours are completed, a vote on the pending legislation will be taken. Also it is important to note that once cloture is invoked, senators are only allowed to introduce germane amendments.

Cloture has not always been like this. When rule twenty-two was adopted in 1917, it took 2/3 of the Senate who was present to vote for cloture providing there was a quorum. In 1949, rule 22 was amended to state that 2/3 of the entire senate, or 67 members were required to vote to end debate. In 1959, rule 22 was amended again lowering the required number of senators to 2/3 of those who were present and voting. In 1975, cloture was lowered to 3/5 of membership or 60 members to vote for it. Since the drop in the number of members needed to invoke cloture, cloture votes were twice as successful then in the period from 1959. 

The other major reform that took place in cloture was the time allotted to debate after cloture was invoked. Originally rule 22 never specified the amount of time that was permitted for debate after cloture was invoked, senators began to exploit the rule in the late 1970s. They started what became known as the post-cloture filibuster, where after debate had been supposedly ended, they would continue to tie up the floor with more debate, amendments, and points of order. For example, Senator X would have control over the floor and ask for every amendment to be read, despite relevance or necessity. This post-cloture filibuster would eat up a large amount of time. 

Thus, in 1979, the Senate amended rule 22 to state that post-cloture debate would be limited to one hundred hours or one hour per Senator. The only problem with this reform was that the one hundred hours did not include points of order or readings of amendments, so the post-cloture filibuster still worked in delaying the passage of a bill. Again in 1986, the senate voted to amend rule 22 to limit post-cloture debate to 30 hours including all points of order. This recent amendment has pretty much eliminated the post-cloture filibuster.

Another somewhat less looked at cloture reform is that of dealing with procedural motions and rules. In 1948, the chair decided that cloture cannot be applied to procedural motions applying to pending legislation. One year later, the senate voted to overturn that decision, saying that cloture could be applied to procedural motions except those motions to change the standing rules of the senate. One decade later in 1959, the senate again changed rule 22 to say that cloture may be invoked in motions considering changes in senate rules. In 1975, along with the lowering of cloture votes to 3/5, the senate mandated that 2/3 of senators present and voting must vote cloture on senate rules. This is the ruling that remains today.

So why is rule 22 cloture reform so important to the passing of legislation? It is pretty simple. It is almost impossible for a majority in the senate to have 3/5 or 60 votes. So in order to pass a partisan bill, one party must get a number of votes from their opponents in order to shut off the minorities ability to filibuster. There have been talks about lowering the amount of votes needed to invoke cloture but due to the fact that you need a 2/3 vote to change senate rules, it is unlikely that the minority will want to give up their ability to block unfavorable legislation.

The Little-Harm Thesis

“Many supporters of unrestricted debate argue that the use of the filibuster has done little harm to the public welfare and has sometimes done much good. ” This thesis takes to heart the major ideas in reform in senate rules. The belief is that the filibuster has done more good than bad: has prevented more bad laws, than eliminating good laws. There is a great deal of argument on both sides of this issue and we shall examine both.

Perhaps the greatest support in favor of the little-harm thesis is the fact that it is hard to prove the point otherwise. Included in Appendix C is a list of the measures killed by filibuster from 1789-1994. If you look, the list is extremely short only containing only forty-one bills. The reason the number is so small is because it is impossible to generate a list that would show bills that were dropped due to threatened filibusters. It goes almost without saying that there are probably countless measures that were dropped by their supporters or committee chairs due to the thought that it would die on the floor of the senate due to filibuster. In 1949, three senators supporting the little-harm thesis observed:
In the testimony favoring legislation on debate in the Senate presented to the committee, a great deal of theoretical handicaps and weaknesses of the present rules were presented, but the proponents of change failed to present one single example of any real injury to the American people caused by the delay on legislation due to extended debate. The opponents to change in the rules extend a challenge to the proponents to show such injury at any time since the free debate rule was instituted in the Senate in 1806. This challenge was made early during the hearings on the subject, and was unanswered throughout that period. 

These senators continued by saying that of all the filibustered bills only five may have caused harm to the American public: the force bill of 1890 , the armed ship bill of 1917, the antilynching bills, the anti-poll tax bills, and the Fair Employment Practices Commission bill of 1946. The three senators above believed that the enactment of those bills would have been unconstitutional regardless of their passage and benefit to the American people: “Each one…that has reached the floor of the Senate has been gravely doubtful constitutionality. Even some of the most present and ardent sponsors of the antilynching law agree that the early Dryer Act and the later versions of this bill contained unconstitutional provisions. ”

However and despite these arguments for the little-harm thesis, there is quite a bit of evidence that points to the contrary. In addition to the constitutional argument laid out earlier in this paper, the reformers believe that harm has come to the American people due to unrestricted debate. 

For example, look at the federal lynching bills of 1922, 1935, and 1938, all which were supported by a majority in the House and Senate, and if passed would have been most likely signed into law by the president, in 1922 Franklin D. Roosevelt and in the other Warren G. Harding. Both presidents probably hoped the issue would not arise but neither would have had a problem supporting the legislation. “Thus the Senate filibuster delayed federal action against lynching and no doubt extended the life of the practice, particularly in the rural south. ” No one with a conscience could say that this was not a harm to the American people.

Other examples can come from measures that were killed by threatened filibusters and were not even brought up in the actual Senate but are still on record. For example, in 1968, “a filibuster forced open-housing advocates to reduce the coverage of their anti-discrimination bill and to drop key enforcement provisions—greatly changing the import of the bill—in order to gain cloture on an amendment and pass the bill. ” Thus, the argument of the reformers is that, especially in antidiscriminatory legislation, important civil rights bills were blocked as a result of filibusters.

What Types of Reform have already been established to the filibuster?

I have already discussed for you the major changes in rule twenty-two that have taken effect over the years but it might also be helpful to look at some of the other rule changes and decisions that have been made effecting the filibuster since its inception . The first rule change that occurred was already discussed and that was the omission of the previous questions motion from Senate rules in 1806. This is the first time that unrestricted debate enters the rules of the Senate. Notice again that this idea of unrestricted debate comes from the senate rules and procedures, not from the Constitution or the first Senate. In 1870, the Senate decides to allow the chair to read papers in debate that are irrelevant to subject matter. This is key to one of the filibustering techniques I have discussed; having amendments read despite their germaneness to the current debate as a stalling tactic. 

In 1908, many decisions were made by the chair that have effected the ability to filibuster. Debates can not be considered intervening business and that more than just a debate must take place between quorum calls. This means that a Senator could not have a quorum call every five minutes unless some order of business has transpired. Also, it was decided that Senators may be prevented from speaking on the same subject more than once on a given day. The implication of this is that Senators who yield the floor to another Senator and then return to the floor, may not take back over the filibuster on the same day. This means that the fewer people that are actually holding the floor, the longer each one of them must talk continuously.

A ruling from the chair in 1935 says that Senators who yield twice for a quorum call while the same question is on the floor lose control of the floor. This means that you can only use one quorum call as a stall technique without losing the floor. This is the final real limit on ways to filibuster. Senators and groups of Senators who filibuster must be careful to observe these procedures and precedents in order for their filibuster to be successful. If one mistake is made and they lose the floor, then the filibuster is unsuccessful.

Should There be Future Reform and is it Possible?

This entire essay has tried to show both points of each argument. There are many people who support reform but in different ways. Let’s explore the two major reformist and the status-quo points of view. 

First, look at the point of view that a simple majority should be all that is necessary to invoke cloture. There are many people who would like to see this happen, because of, first the constitutional reasons, and second because it would make legislation pass through smoother. Those arguing both points believe that the constitutional framework set up provides for a simple majority to pass legislation through Congress. I have already laid the groundwork for this proposal earlier in the paper. Those arguing against this usually worry that a majority could force its will on the people if they controlled both houses. Of course the Constitutionalists will argue that you have other checks to prevent this, both the presidency and the courts. Even if the President and both houses were controlled by the majority, the court system would still be there to strike down unfair and unconstitutional laws.

The other major type of reformist wishes to lower the cloture supermajority but not make it a simple majority. Most of these people argue that fifty-five would be suitable to invoke cloture and move on to passing legislation. In addition to this reformer there is one more who believes that the supermajority should be raised back to original 2/3. The reason they possess to believe that the 3/5 is too small was during the last election where Republicans could have broken the supermajority mark currently instituted. “A key fact in doing business in the U.S. Senate is this: It takes sixty votes to break a filibuster. With the upcoming election the Republicans could break the 55-45 majority in the senate and be able to pass partisan bills without problem. This is the reason ‘the magic senate number’ must be changed back to 67. ”
Still there is one other major point of view: the Senate cloture vote should remain at sixty. The people with this viewpoint believe that it provides the proper check and that if a bill is important enough to be passed, it will receive the necessary sixty votes. Also, many of the believers of the status-quo support the “little-harm thesis” described above.

The other major question about reform is if it is possible or not? Again this has two major viewpoints. Exploring the first option, that reform may be possible, you encounter arguments that relate to management of the Senate. Most party leaders in recent years would agree that the senate has become increasingly unmanageable. Binder and Smith say that: “Fundamental reform of the senate is in order: reform that will simultaneously protect the Senate’s comparative advantages over the House and ensure that majorities are able to secure final votes on measures they prefer. ”

Reform of Rule twenty-two would be well taken if it allows for lengthy deliberation over controversial bills, but still permitted final action on the bill to take place. More thought out plans for reform permit the threshold amount of votes to be taken down to fifty-one, but the notice of cloture vote must be longer, perhaps as long as twenty days. Also, other reformers have suggested that reform to rule twenty-two be done in a fashion that limits debate in the last month of the legislative session.

In Conclusion

Rule twenty-two lends itself to criticism just in its very nature. The idea of a supermajority being needed in order to do the business of the country upsets a lot of reformers who wish to see what the founders pictured: a majority driven legislature. I believe that despite what the reformers want, reform of senate rules is very difficult considering the 2/3 majority necessary for such reform. 

It is hard to see the minority in the Senate giving over their ability to stop partisan action, and basically lose their effectiveness in Congress. It seems that despite the help it would be in passing legislation, and despite the fact that parliamentarian systems lend themselves to majority driven systems rather than supermajorities, reform towards a majority cloture is highly unlikely. It seems rather, that, a filibuster reform in congress would be filibustered, causing a filibustered filibuster. And with that, any hope of reform ends.

Binder, Sarah A. and Steven S. Smith. Politics or Principle. Brookings Institution Press, 1997, p. 3.
Ibid, p. 8.
Germaneness—In the Senate, unless the rule has been created in the Unanimous Consent Agreement, senators may propose non-germane or unrelated amendments to the bill.
“Filibustering.” New York Times, 12 Dec 1982, 4e. Portion rpnt. Walter J. Oleszek. Congressional Procedures and the Policy Process. CQ Press, 1996.
“Coal-Mine Filibuster.” Washington Times, 17 Nov 1987, A6. Portion rpnt. Walter J. Oleszek. Congressional Procedures and the Policy Process. CQ Press, 1996.
Binder, p. 29
Ibid, p. 4.
Madison, James. “Federalist No. 62.” Rpnt. Benjamin Ginsberg, Theodore J. Lowi, and Margaret Weir. We The People: Document in U.S. History. W. W. Norton and Co., 1987: p.363.
Cutler, Lloyd. “The Way to Kill the Senate Rule XXII.” Washington Post, 19 April 1993: A23.
Kearny, Edward N. and Robert A. Heineman. “The Senate Filibuster.” Perspectives in Political Science, Winter 1997, vol 26 issue 1, p. 5-9.
U.S. v. Ballin. U.S. Supreme Court Case. Rpnt. Lloyd Cutler. “On Killing Senate Rule XXII.” Washington Post, 3 May 1993: A19.
Binder, p. 85.
Burdette, Franklin L. Filibustering in the Senate. Princeton University Press, 1940: p. 105.
Points of Order—This is one element used in filibustering but can also be used at any time during debate. One example of a point of order is a quorum call.
“Limitation on Debate in the Senate.” U.S. Senate Committee on Rules and Administration. GPO, 1951, p. 294.
Ibid.
See Appendix C
Force bill of 1890—Bill which would have put elections in the South under federal control with the use of federal troops.
Limitation, p. 137.
Binder, p. 139.
Ibid, p. 141.
See Appendix B for a timeline on reform of Senate Procedures relating to the filibuster
“Magic Senate Number, The.” U.S. News and World Report. 2 Nov 1998. Vol 125 Issue 17, p.23.
Binder, p. 209.

Appendix A
Political Division on Issues with Filibusters or Threatened Filibusters before Adoption of Rule 22, 1837-1917

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