The Debate Over the Filibuster, Explained

Written by: Ashley Teo (23-U1)

Designed by: Ng Le Kang (23-I2)

What is the Filibuster?

The filibuster is a parliamentary procedure in the United States Senate that allows a minority of Senators to delay or block a vote on a piece of legislation or nomination by speaking for an extended period. Once a Senator begins speaking on the Senate floor, they can continue speaking for as long as they wish, provided they remain standing and do not leave the Senate chamber. The Senate cloture rule requires a three-fifths supermajority (60 votes) to end a filibuster and proceed to a vote on the legislation or nomination. While the filibuster is not explicitly mentioned in the U.S. Constitution, it has been used by Senators since the Senate's inception.

The History of the Filibuster 

Filibusters traditionally involved long speeches in which a senator attempted to block a vote from proceeding by refusing to yield the floor. To stage such a filibuster, a senator would stand and speak for as long as they could, sometimes overnight. A 1939 film, “Mr. Smith Goes to Washington” popularised this.

However, since the early 1970s, senators have been able to use a “silent” filibuster. Under current Senate rules, Senators can filibuster by simply notifying their leadership of their intent to do so.  Anytime a group of 41 or more senators threatens a filibuster, the Senate majority leader has the authority to refuse to call a vote.

Here are some interesting historical examples of the filibuster being used in the United States Senate:

In 1957, Senator Strom Thurmond of South Carolina gave a 24-hour filibuster against the Civil Rights Act of 1957, which was aimed at protecting the voting rights of African Americans. Thurmond's speech remains the longest filibuster ever delivered by a single Senator.

In 1964, Senator Robert Byrd of West Virginia gave a 14-hour filibuster against the Civil Rights Act of 1964, which he opposed on the grounds that it infringed on states' rights. Byrd would later renounce his opposition to civil rights and become a staunch advocate for racial equality.

In 2013, Senator Ted Cruz of Texas gave a 21-hour filibuster against the Affordable Care Act, which he opposed on ideological grounds. Cruz's speech included a reading of the children's book "Green Eggs and Ham" by Dr. Seuss.

In 2016, Senator Chris Murphy of Connecticut led a 15-hour filibuster to push for stronger gun control measures in the wake of the mass shooting at the Pulse nightclub in Orlando, Florida. Murphy's filibuster helped to spur a national conversation on gun violence prevention.

The use of the filibuster has varied over time, and both Democrats and Republicans have used it to block legislation or nominations when they were in the minority. 

During the Obama administration, Senate Republicans used the filibuster to block several high-profile bills and nominees, including legislations on gun control, immigration reform, and climate change, as well as several judicial and executive branch nominations. For instance, In October 2021, Senate Republicans used the filibuster to block a voting rights bill known as the Freedom to Vote Act, which would have made it easier to vote, expanded early voting and absentee voting, and protected against voter suppression efforts. Such usage of the filibuster led to accusations that Republicans were obstructing the legislative process and preventing important policy initiatives from moving forward.

Under the Trump administration, Senate Democrats used the filibuster to block some of President Trump's more controversial nominees, including his nomination of Neil Gorsuch to the Supreme Court. In one case, the filibuster was used to block a series of Republican-backed bills in 2019 that aimed to restrict abortion access and funding. 

It's worth noting that the use of the filibuster has been relatively infrequent in recent years, as both parties have increasingly relied on other means of obstruction, such as holds and procedural delays. Nonetheless, when the filibuster has been employed, Republicans have historically used it more often than Democrats.

Why there are calls for reform

Essentially the debate over the filibuster centres on whether it should be reformed or eliminated. In either case, a majority of Senators would need to vote to change the Senate rules, a process known as "going nuclear" or "the nuclear option". This would require a simple majority vote, which means that the majority party would need to have at least 51 votes in the Senate. However, going nuclear would be a controversial move, as it would fundamentally change the way the Senate operates and could have long-term consequences for the institution.

Supporters of the filibuster argue that it protects the rights of the minority and encourages compromise and bipartisanship. They argue that eliminating the filibuster would lead to a tyranny of the majority, where the majority party could pass any legislation it wanted without the need for bipartisan support.

On the other hand, opponents of the filibuster argue that it has been abused in recent years to obstruct important legislation and nominations and that it has become a tool of partisanship and obstructionism. They argue that eliminating or reforming the filibuster would allow the Senate to function more effectively and pass legislation that has the support of the majority of the American people. Some have called for a return to the original requirement of continuous speaking, while others have proposed reforms such as reducing the number of votes needed to end a filibuster or requiring Senators to speak on the floor to maintain a filibuster.

One possible change that has been advocated by President Biden is to do away with the two-track model and return to the talking filibuster. Restoring the talking filibuster would require the minority to be present and actively hold the Senate floor for the duration of a filibuster. This modification would raise the stakes for using a filibuster and potentially increase the incentive for bipartisan compromise. During the debate over the Civil Rights Act of 1964, senators overcame a talking filibuster when Democratic Senate whip Hubert Humphrey collaborated with Republican colleague Everett Dirksen to modify the bill to make it more appealing to the Republican minority, the majority of whom subsequently voted for it.

A return to a talking filibuster should be accompanied by a reduction in the number of votes required to invoke cloture. One approach would be to implement a "step-down" process, similar to the one proposed by Senators Tom Harkin and Joe Lieberman in 1995, which would allow for successive votes gradually reducing the number of senators required to close debate until it reaches 51. In other words, opponents could stall legislation supported by a majority, but the majority's will would ultimately prevail.  

In today's polarised, closely divided Senate, an unattainable 60-vote threshold for major legislation does not incentivize compromise because the minority has no actual incentive to come to the bargaining table. A step-down procedure would provide such an incentive while also allowing for more time for deliberation and compromise. It would keep the filibuster while allowing for a majority vote on time-consuming but important legislation.

These are not the only reforms that could be implemented. Another suggestion is to shift the voting burden for cloture to the minority that wants to extend debate rather than the majority that wants to end it. Under current rules, it is the responsibility of the majority to invoke cloture, a time-consuming procedure that requires all members voting in favour to be physically present. Flipping the voting burden to the minority, like restoring the talking filibuster, would raise the stakes for filibustering legislation, incentivizing senators to do so less frequently and to be more open to compromise. Another widely debated option is to create a new limited exception to the filibuster for certain types of bills, such as those protecting voting rights or constitutional rights in general.