A History of Filibustering

By Gregory Koger

In his forthcoming book Going to the Mattresses: The History of Filibustering in Congress, assistant professor of political science Gregory Koger takes a closer look at how a new “veto player” emerged in American politics as senators have increasingly embraced talking out a bill to prevent a vote from taking place. In this excerpt, Koger examines how filibustering became a central, though increasingly subtle, feature of the lawmaking process.

Over the last 50 years there has been a quiet, though sometimes wordy, revolution in American politics. While members of the U.S. Senate have always had the ability to filibuster legislation— that is, to delay it through open-ended “discussion” —they rarely did so before 1960. Filibustering has skyrocketed since then, from an annual average of 3.2 filibusters during 1951–1960 to 16.5 between 1981 and 2004. This change has had far-reaching effects: filibustering empowers individual senators to pursue their personal agendas, and it gives the minority party the ability to block the majority party’s proposals.

EMERGENCE OF THE SUBTLE FILIBUSTER

Filibusters were rare in the Senate during the 19th century and the early 20th century. In order to block legislation, senators would usually have to stay on the Senate floor for hours or days on end, which was physically exhausting and could lead to retaliation from other senators in the future; these costs usually exceeded the benefits of obstruction. Nonetheless, in 1917 the Senate gave in to public pressure and adopted the “cloture” rule, which limited debate if a two-thirds majority vote of the senators agreed. Cloture was not often used because of the difficulty of mustering two-thirds of senators in favor of controversial legislation. Between 1927 and 1962 the Senate tried eleven times to invoke cloture but did not succeed. Instead, a filibuster could often be defeated by either striking a bargain or waiting for the obstructionist(s) to become exhausted.

A strategy of patience offered little hope for civil-rights legislation, however, which repeatedly failed in the face of determined, well-organized, and very public filibusters by Southern senators. The catalyst was a prolonged round-the-clock contest over the Civil Rights Act of 1960, when the Southerners easily outlasted an effort to wear them down. This failure led several senators to rethink the Senate’s tolerance for filibustering, given the body’s growing workload. After all, the federal government had expanded tremendously since the 1930s, and the United States had taken on the foreign-policy responsibilities of a world superpower. Moreover, with the growing availability and convenience of air travel, senators also enjoyed easier transportation to their home states, to speaking opportunities around the country, and to foreign travel. It was increasingly difficult for the legislature either to overcome or outlast a filibuster.

Senators gradually accepted the necessity of voting for cloture—first on the Communications Satellite Act of 1962, then on the 1964 Civil Rights Act. By the end of the 1960s, cloture votes had become a regular occurrence. In 1975, the Senate even changed the threshold for cloture to three- fifths of the entire Senate or 60 votes. But behind the scenes, Senate leaders had been developing systems for members to “hold” a bill until they had a chance to study it; this option quickly became a means to make explicit threats to filibuster the bill, or a nomination. These cloture and holding innovations meant that filibusters ceased to be “live” events: senators’ complaints were accommodated ahead of time, or threatened bills came to the floor for a cloture vote. From 1961 to the present, cloture votes have risen dramatically: there were two from 1951 to 1960, but 111 during the 110th Congress (2007-2008) alone.

Thus extended round-the-clock filibuster sessions have largely become things of the past, but with unintended consequences. Without the threat of such sessions, there is little reason for senators not to filibuster any bill they dislike, especially when the threat to filibuster is made covertly.

We have seen the effects of such threatening filibustering in recent events. Despite the election of Barack Obama, large majorities in the Senate and House of Representatives, and a campaign based on “change,” Democrats have struggled to pass key items of their agenda. In January, Senate Democrats were compelled to trim their first major bill—a “stimulus” package of spending and tax cuts—from $940 billion to about $780 billion ($787 billion in the final law) in order to gain the votes of a centrist bloc of moderate Democrats and three Republicans. And Democrats have taken unorthodox steps to protect another agenda item. This spring they reserved the option of considering health care reform through the filibuster-proof process of reconciliation which limits debate and amendments in 2009. They may not follow through on this plan, but the threat to do so is intended to bring Republicans to the negotiating table.

A SYSTEM BASED ON COOPERATION

While we think of filibustering as a strategy to block legislation, senators in fact use it to achieve a variety of goals. As with the stimulus bill, filibustering can be a way to encourage a majority to amend a bill so that it appeals to a broader (and, usually, bipartisan) coalition. More typically filibusters are simply a way for legislators to publicize their strong opposition to a bill or nomination. Finally, legislators may filibuster as part of a strategy of “hostage taking,” in which the obstructionists trade the passage of one bill, or approval of a nomination, for consideration of some unrelated bill or nomination.

This system of obstructionism has transformed the culture of the Senate. As a leader’s senior aide explained: “Obstructionism is woven into the fabric of things. The [party] leadership deals with it on a day-to-day, even a minute-to-minute basis. ... You can’t underestimate the importance of it. There are offshoots of obstructionism every day.”1 Modern senators are highly accustomed to operating by mutual agreement for fear that colleagues who feel that their positions have been disregarded will retaliate with further obstruction.

Overall, the true effect of filibustering has been to empower legislative minorities to pursue a range of interests. Some proposals are blocked as a result, but others advance. Just as important, the minority party has the power to defend its ability to participate in Senate debate and offer amendments, which are often denied by the majority party in the House. In the polarized era in which we live, filibustering provides an antidote to the tendency of majority parties to strong-arm their own members’ votes and deny minority party members a voice on the floor.