In the United States Senate, there is a procedural rule which is very uncommon among legislative bodies.
According to the Senate rules, senators may speak for as long as they wish on any subject until 3/5ths of the members of the body vote to end debate.
While this might seem like a rather innocuous rule, the implications of it have been wide-ranging.
Learn more about the filibuster, how it came to be, and how it has been used on this episode of Everything Everywhere Daily.
Filibustering actually has a long history, and the version that is practiced in the US Senate is not the only kind.
The English word “filibuster” comes from the Spanish word filibustero which basically means “freebooter,” which was basically a type of pirate. The Spanish word may itself have come from the Dutch word “vrijbuiter.”
This word became used to describe someone who obstructs legislation. A filibuster is, generally speaking, an attempt to block a vote using procedural means.
In the late Roman Republic, the Roman Senate had a rule that all debate and discussion had to end at dusk. Cato the Younger would often take advantage of this by speaking all day until sunset, ensuring that a vote on something couldn’t take place.
Likewise, legislators have used parliamentary tactics in countries all over the world to try to delay legislation.
The Canadian Parliament has seen filibusters where one party will try to extend discussions on the floor of parliament. In June 2011, members of the New Democratic Party spent 58 hours taking turns speaking and asking questions to delay a vote on a bill on postal worker wages.
Likewise, in Ontario in 1997, the New Democratic Party submitted 11,500 amendments to a bill that would expand the size of the city of Toronto.
In 2011, Labor party Members in the House of Lords in the UK had a go-slow campaign to delay the implementation of a law that would put a referendum on the bottom, but it had to be passed by a specific date for it get on the ballot. They managed to keep the debate going for 17 days.
There are many other cases of individual lawmakers using marathon speeches to delay votes. In 1963, Roseller Lim gave an 18-hour speech in the Philippines Senate to wait for one of his colleagues to arrive who was on a flight from the United States. He had to stand in place the entire time and relieved himself where he was standing.
In 2010, Werner Kogler of the Austrian Green Party spoke for 12 hours and 42 minutes.
While these legislative attempts at delaying votes have taken place all over the world, none of them compare to the United States Senate, where filibusters, or at least the threat of filibusters, are constantly hanging over every piece of legislation.
There is nothing in the US Constitution about filibusters. The only thing that is relevant is under Article 1, Section 5, which simply says, “Each House may determine the Rules of its Proceedings…”
So, the rules which allow for filibusters are created by the Senate and can be changed by the Senate.
The rules that allow for filibusters were never intended with that in mind.
When the first congress met in March 1789, there were no rules about the length of speeches or ending debate on a subject. Almost immediately, this caused a problem. In September 1789, Senator William Maclay of Pennsylvania wrote in his diary about a piece of legislation to establish Philadelphia as the nation’s capital. He noted that the “design of the Virginians […] was to talk away the time, so that we could not get the bill passed.”
So, the Senate passed a rule that allowed for calling the previous question, aka, ending debate. However, a motion to call the previous question could itself be debated, so it couldn’t guarantee an end to debate.
In early 1805 the Vice President of the United States was Aaron Burr….yeah, that Aaron Burr that killed Alexander Hamilton in a duel. The Vice President is constitutionally the President of the Senate. While today, the Vice President tends only to show up to break tie votes, back then, the Vice president was usually in the Senate chamber all the time leading the proceedings.
The Senate in 1805 was also very small, with only 34 members.
Burr believed that because the Senate was supposed to be collegial, they didn’t need so many procedural rules, so in 1806, the Senate dropped the rule, which allowed for calling the previous question.
This seemed innocent enough, but the Senators who passed this rule didn’t think through the implications.
Nothing much happened until 1837. A group of senators from the Whig Party conducted a filibuster to block attempts by the Democrats to remove a censure that was placed on President Andrew Jackson.
In 1841, the Democrats ran a filibuster against the Whigs during a debate on the charter of a new national bank. During the debate, the Whig Senator from Kentucky, Henry Clay, threatened to change the rules to limit discussion. In response, the Democratic Senator from Alabama, William King, threatened an even longer filibuster, and the proposed rule change was dropped.
Surprisingly, during and leading up to the Civil War, the most contentious period in the history of Congress, the filibuster was seldom used by either side.
The inability to close debate remained a rule in the Senate throughout the 19th century. The issue didn’t come to a head again until 1917.
During the First World War, twelve anti-war senators managed to kill a proposal that would have armed US merchant vessels that were encountering German submarines in the Atlantic.
Led by Wisconsin Senator Rober La Follette, the group managed to tie up debate for 26 hours until the session of Congress ended on March 3, preventing the bill from being voted on.
President Woodrow Wilson was incensed at what happened. He said, “The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible…”
As soon as the new congress began on March 4, Wilson encouraged the Senate to pass a rule allowing cloture. Cloture is just the ability to close debate to bring a bill to a vote. This became one of the top priorities of the new Senate in the first days of the session.
Unfortunately, the rule to allow for cloture was itself subject to debate, so intense negotiations took place.
The compromise was known as Rule 22. To summarize Rule 22, because it would be way too long and boring to read:
It required sixteen senators to bring forward cloture on a bill. It then took 2/3rds of the sitting senators to vote in favor or cloture. If a vote on cloture passes, then there is an additional 30 hours when debate can take place. After that, a vote on the bill will promptly proceed.
The requirement of a supermajority instead of a simple majority was the compromise.
I should note that cloture doesn’t have to be invoked on every bill. In fact, there have been many entire congresses where there were no motions to invoke cloture at all.
The first two attempts to invoke cloture took place during the 65th Congress in 1917 and 1918, both attempts failed.
Ironically enough, the first time a cloture motion was successful was in 1919, and it was on the ratification of the Treaty of Versailles which was promoted by Woodrow Wison. However, in the subsequent vote, the treaty failed to be ratified, primarily because of stipulations in the treaty that allowed the League of Nations to declare war without the consent of Congress.
Rule 22 was seldom invoked over the next 40 years. That wasn’t to say there weren’t filibusters that occurred, however. Several senators used filibusters just to bring attention to issues, or to themselves.
In the 1930s, Senator Hewy Long from Louisiana would often have personal filibusters to delay any bills that he thought favored the rich over the poor.
In the 1950s Oregon senator Wayne Morse would often filibuster bills that he wanted to bring attention to, as he knew his filibuster would get media coverage. In 1953, he set a then record of speaking for 22 hours and 26 minutes on oil drilling legislation.
I should note, at the time, these filibusters shut down all activity in the Senate. Nothing could move forward so long as someone kept debate open on a bill.
Very serious and long filibusters began taking place when Civil Rights legislation began being proposed in the 1950s and 1960s.
Southern Democrats were adamant about stopping civil rights legislation and went to extreme measures to block such legislation from coming to a vote.
In 1946, a group of five Southern Democratic senators blocked legislation on the Fair Employment Practice Committee that was intended to stop workplace discrimination.
In 1957, South Carolina Senator Strom Thurmond set the filibuster record, which still stands today, when spoke for 24 hours and 18 minutes against the 1957 Civil Rights Bill.
He read voting laws from all 48 states, Washington’s Farewell address, various Supreme Court rulings, and even from Democracy in America by Alexis de Tocqueville.
His entire speech took up 96 pages in the Record and cost over $7,000 in printing costs, which would be over $73,000 today.
All his efforts were for naught because two hours after his filibuster ended, the bill was passed by the Senate.
The 1964 Civil Rights Act also saw an organized attempt by Southern Democrats to block the bill, which otherwise had a clear bipartisan majority in support of it.
The Southern Democrats managed to hold up the bill for 60 days, including a 14-hour and 13-minute speech by Senator Robert Byrd of West Virginia.
It ended with only the second successful cloture vote since 1927, when 71 senators voted to end debate.
These attempts to derail Civil Rights legislation led to calls to change the cloture rules in the Senate.
There were two major changes which took place in the 1970s.
In 1972, both the Republican and Democrat leaders in the Senate pushed through a rules changed which allowed for a two-track system of legislation.
Previously, when a filibuster took place, everything in the Senate stopped.
Under the new system, any bill that was being filibustered could be put aside by unanimous consent so other legislation could be voted on.
While this was good insofar as a filibuster didn’t mean stopping all the activity in the Senate, it also made filibustering much easier. There wasn’t as much pain inflicted on the rest of the Senate as everything else could just flow around whatever was being blocked. A Senator didn’t have to physically stand on the floor of the Senate to block legislation.
The other major change took place in 1975 when the number of votes required for cloture was reduced from ? to ?. Instead of 67 senators, you now only need 60. However, the number of votes required to end debate on a rule change remained at ?.
These two changes resulted in an explosion of filibusters as well as an increase in cloture votes.
The 92nd Congress, which sat in 1971 and 1972 saw 20 motions for cloture, almost tripling the previous record, with 4 success votes for cloture. There had never been a congress that had more than one.
From there, the numbers kept climbing dramatically.
In the most recently completed congress, the 117th, which sat from 2021 to 2022, there were 336 motions for cloture, with 289 votes taking place and 270 of the votes being successful.
The success rate of cloture votes was 93%, a figure that most people probably don’t realize is that high.
There is a technical way around the cloture rules, which is known as the nuclear option. It is done by raising a point of order to a standing rule that can be overridden with a simple majority.
This was done by the Democrats in 2013 to allow a simple majority to approve cloture on non-Supreme Court presidential nominations.
The Republicans also did this in 2017, extending it to Supreme Court nominations.
It is thought that something similar could be done to end the 3/5ths cloture rule generally, but so far, as of the time of this recording, nothing has been done.
The filibuster remains a controversial thing, and every few years, the subject pops up about changing the rules to get rid of it.
The filibuster is probably the single issue for which politicians of both parties have changed sides the most. You can find an ample number of quotes from both Republicans and Democrats who have both defended and attacked the filibuster over time.
Shockingly, almost every time a Senator defends the filibuster it is when their party is in the minority, and every time they attack the filibuster is when their party is in the majority.
There have been several times since 1806 when one party had supermajority control in the Senate. At some point, the majority party could have changed the Senate rules to make it easy to close debate and end the filibuster as we know it.
Likewise, some party could use the nuclear option to eliminate the filibuster, but no one has.
The reason probably has to do with the fact that the balance of power in the Senate is always close, and that balance can easily change in the next election. Whatever temporary gain can be had by the majority party by getting rid of the filibuster could easily come back to haunt them after the next election.
The Executive Producer of Everything Everywhere Daily is Charles Daniel.
The associate producers are Thor Thomsen and Peter Bennett.
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Hello, My name is Max and I am 12 years old. I love everything everywhere daily, and it’s my favorite podcast. I started listening in March and just joined the completionist club in San Mateo. (Near San Francisco) I would be really happy if you read this on the show. I don’t know how to leave a review on Apple podcasts, so I am just sending this email. My favorite episode was the one about The greatest blowouts in sports and I hope to hear an episode about Star Wars or volleyball. Thank you for your time.
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