Oh, the Laws You’ll Filibuster!

by Brett Hall

Illustration by Gabriela Sibilska

Speaking to the point of collapse? Reading Green Eggs and Ham? Relieving yourself in a bucket? Believe it or not, all of these things have happened on the floor of the United States Senate in the name of blocking legislation from becoming law. With the results of the 2020 election, Democrats control the House of Representatives, the White House, and (with Vice President Kamala Harris’ tie-breaking vote), the Senate. But Democratic activists warn that as long as the filibuster remains in place, the legislative agenda of the Biden Administration will hit a dead-end. 

What is a filibuster? It’s a procedural technique where members of the Senate use any tactic to prevent a bill from coming to a vote. While bills that go to the House and Senate can both pass with a simple majority, the procedural rules in each chamber of Congress create different political roadblocks. In the House, a simple majority vote will end debate of a bill and put the bill up for a formal vote. In the Senate, however, there is a 60-vote threshold to end debate—a process known as cloture. This means that Senators of the minority party can halt progress of a bill indefinitely and potentially block other bills from being voted on until the bill in question is removed from consideration, as long as they hold 41 votes to prevent cloture.

So how did the filibuster come about? Its origins are murky. The often recounted story goes something like this: the Senate is the cooling saucer to the hot and partisan legislation coming from the House of Representatives. The filibuster forces the political parties to work together to temper the passions of the House and find common ground. The idea is that the Senate is the bastion for debate, and that by having the voices of the minority party fully heard, better legislation can be crafted. 

There is no truth to this story, however, as there is no mention of the filibuster in any of the US founding documents, including the Federalist papers and the personal writings of any of the framers of the Constitution. The more commonly accepted belief among historians is that the filibuster was created procedurally by accident by then-Vice President Aaron Burr, when rules were crafted regarding how the Senate would function during the early years of our new system of government. Historians often point to the fact that the first use of the filibuster was not until 1841 as evidence that it was not created on purpose. 

As the filibuster became more popular during the early 1900s, the narrative became that its employment was an act of courage and honor because of the exposure and physical toll required for a senator to attempt to stall a bill. The idea was that the filibuster protected the rights and views of the minority party in the Senate. For decades, Southern senators used this reasoning as justification to deploy the filibuster to block legislation that would have improved the lives of Black Americans. 

Thousands of Black Americans silently march on Washington to demand the passage of a federal anti-lynching bill, June 14, 1922

Take the Dyer Anti-Lynching Bill, for example. In 1921, President Warren G. Harding and the Republican majority backed a bill that would have made lynching a felony and forced the county to pay $10,000 to victims’ families if it was determined that law enforcement was deemed responsible for an individual’s death. Southern Democrats fired back at the effort, stating that the bill was “the most daring and destructive invasion of states’ rights in history,” and blocked all other legislation from going through the Senate until the bill was removed from consideration. The tactic worked; to this day, there is no federal anti-lynching legislation. 

In 1956, Republican Strom Thurmond attempted to block civil rights legislation using the filibuster by speaking for a record 24 hours and 18 minutes on the Senate floor. He had a Senate aide with a bucket in a nearby cloak room, so he could relieve himself during the speech while still keeping a foot on the Senate floor, as was required by rule. His effort ultimately failed, and the Civil Rights Act of 1957 passed both chambers of Congress.

In the 1970s, the Senate rules concerning the filibuster were changed as a way to give more power to the legislature in the post-Watergate Era. In order to save time and streamline some of the processes in the Senate, both Republicans and Democrats agreed that the filibuster no longer required marathon speeches on the floor in order to block legislation. The threshold to end cloture was dropped from 67 votes to 60, making it easier to end a filibuster and move towards voting on legislation. 

Although this move was designed to end the filibuster, ultimately it did not. The new rule changes stipulated that a filibuster on a bill could now continue while the Senate carried on conducting its other business simultaneously. As a result, the filibuster is more common than ever before

Texas Senator Tom Connally (left) who started a filibuster aimed at a 1937 anti-lynching bill confers with Nebraska Senator George Norris (right), November 17, 1937. Library of Congress

In recent years, the filibuster has gained more public attention. In 2013, Texas Senator Ted Cruz attempted to filibuster legislation concerning the Affordable Care Act by reading Bible verses, messages from Twitter, and Dr. Seuss’ Green Eggs and Ham on the Senate floor. Cruz even changed some of the lines in the children’s book in an attempt to make his filibuster seem relevant: 

“When Americans tried it, they discovered they did not like green eggs and ham and they did not like Obamacare either. They did not like Obamacare in a box, with a fox, in a house or with a mouse. It is not working.”

Over the past 20 years, the filibuster has become a political football. When Republicans are in power, Democrats defend the need for the filibuster. When Democrats are in power, Republicans defend it. Both parties have used the filibuster to fit their respective political narratives, though the hypocritical party of late has been the GOP. Last week, Senate Minority Leader Mitch McConnell emphatically defended the filibuster, warning that its removal would lead to a “scorched earth Senate.” Four years earlier, though, McConnell himself nuked the filibuster in Senate procedures related to the Supreme Court Justices in order to elevate conservative Justice Neil Gorsuch to the bench.

It is even more unlikely that the filibuster would be removed at this particular moment in time. Axing it would only require a simple majority of votes in the Senate, but a number of moderate Democrats, including Joe Manchin (West Virginia), Kyrsten Sinema (Arizona), and Dianne Feinstein (California) have defended the arcane practice. 

While removing the filibuster seems improbable, reforming it could be an option. Manchin has recently expressed interest in rolling back some of the reforms of the 1970s and reinstating the “talking filibuster,” which would require the minority party to hold the floor by speaking for the entire duration of the filibuster. President Biden has also signaled his support for the change. 

Reinstating the talking filibuster could bring legislation in the Senate to a grinding halt; yet, it would also once again make the filibuster a battle of wills, where a determined majority can outlast a recalcitrant minority. One way or another, it seems gridlock will continue in Washington for the foreseeable future. 

Brett Hall is a high school history and government teacher in Marion, Ohio, where he also volunteers as a Staff Researcher with the Harding Presidential Sites.

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