The History of the Senate Filibuster

NOTE: This article appeared in Washington Report to Presbyterians, Fall 2021

By Naomi McQuiller

The filibuster is a Senate procedure that allows a minority group of senators to block legislation from going to a floor vote. Typically, a bill needs unanimous consent from all 100 senators to end the debate and move it to a floor vote. If consent is not unanimous, then a cloture motion must be filed. The cloture motion requires support from 60 senators to end debate on any bill and proceed to a floor vote. A filibuster rule applies when fewer than 60 senators support the cloture motion, effectively blocking a floor vote.

Prior to the “modern” filibuster, the Senate used the talking filibuster. Individual senators were able to prevent the vote from moving forward by speaking on the floor for as long as they liked to prevent a vote on the bill. Before modern technology came about, a talking filibuster prevented the Senate from moving on to other business. This strategy of stopping the progress of legislation has consistently been used to perpetuate racist and discriminatory practices.

In the 1840s, John Calhoun of South Carolina used an early version of the filibuster to protect the institution of enslavement and the interests of southern plantation owners.¹ In the 1920s, when Henry Cabot Lodge (R-Mass) introduced an anti-lynching bill, southern senators offered objections and amendments—each requiring a separate vote—to prevent a floor vote.² At that time, the filibuster prevented the Senate from undertaking any other business. To save the rest of his legislative goals and priorities, Lodge was forced to abandon the anti-lynching bill. During the next several decades, Congress considered almost 200 pieces of legislation to prevent lynching,³ but not one of them became law.⁴ This shameful outcome is explicitly connected to the use and abuse of the filibuster in the Senate. In 2021, we still do not have an anti-lynching bill.

In 1970, the modern filibuster came about with a new procedure of legislative tracking. New legislative tracking made it possible for multiple bills to be considered on the floor at the same time. This allows a single senator to “filibuster” or hold up the progress of a bill without holding up the floor. This is an imbalance of power, which allows a minority group of senators to block nearly every piece of legislation that they do not support.

The filibuster has been used to prevent progressive legislation that protects or provides aid to Black, Indigenous and People of Color (BIPOC), women and immigrants.⁵ For example, the Paycheck Fairness Act would have been a step toward pay equity for women. Unfortunately, this bill was filibustered twice, in 2010 and 2012.⁶ The Dream Act, which would have provided a pathway to citizenship for undocumented people who arrived in the United States before their 16^th birthday, was filibustered once in 2007 and twice in 2010.⁷

The Senate filibuster has been used to perpetuate racist and discriminatory practices. It is often referred to as a relic of the Jim Crow era, and an ode to white supremacy.⁷ This term highlights the horrific use of the filibuster to oppress already marginalized populations. At this time, there are three proposed alternatives to the modern filibuster. The Senate can choose to maintain the filibuster as it currently is, reform it or abolish it completely. There are two options for reforming the filibuster. First, the Senate could put into place additional carveouts for issues that a majority of senators agree should not be subject to a filibuster. Second, the Senate could change the workings of the filibuster itself. Whichever option is chosen, the Senate must put a system of checks and balances in place to combat the abuse of this procedure.

FOOTNOTES

1. https://nytimes.com/2021/01/27/briefing/vaccines-trump-impeachment-trial-hong-kong.html.
2. David Litt, “The Senate Filibuster Is Another Monument to White Supremacy,” The Atlantic (Atlantic Media Company, June 27, 2020), https://theatlantic.com/ideas/archive/2020/06/senate-filibuster-monument-white-supremacy/613579.
3. Ibid.
4. Keisha N. Blain, an MSNBC Opinion Columnist, “Mitch McConnell Is Wrong on Filibusters: They Are, In Fact, Racist,” MSNBC (NBCUniversal News Group, March 26, 2021), https://msnbc.com/opinion/mitch-mccconnell-wrong-filibuster-fact-racist-n1262117.
5. https://americanprogress.org/issues/democracy/reports/2019/12/05/478199/impact-filibuster-federal-policymaking.
6. Ibid.
7. Ibid.