“In 1805, fresh off the duel where he killed Alexander Hamilton, Vice President Aaron Burr returned to the Senate and proposed streamlining the body’s rules by eliminating something called the “previous question motion,” a process that was rarely invoked in the early years of the Senate.
As Sarah Binder, a Brookings Institution expert on Congress and a professor at George Washington University, explained in 2010 testimony to the Senate Rules Committee, Burr’s intent was to produce a “cleaner rule book” that wasn’t too thick with duplicative procedures. And he thought the previous question motion was the kind of superfluous rule that could be eliminated.
Unfortunately for the nation, the previous question motion wasn’t the least bit superfluous. This motion turned out to be the only way to force the Senate to move off a particular topic. When the Senate took up Burr on his call, it allowed senators to lock the Senate into endless, pointless debate — halting progress even if a majority of the Senate wished to move forward to a vote.
The filibuster was born.
Since then, the rules permitting filibusters have been changed many times — and with increasing frequency.
In 1917, President Woodrow Wilson successfully urged the Senate to create a process, known as “cloture,” which would allow a two-thirds majority of the Senate to break a filibuster and bring a matter to the Senate for a final vote. The number of votes necessary to end a filibuster, whether on a piece of legislation or on a confirmation vote, was reduced to three-fifths of the Senate (ordinarily 60 votes ) in 1975.
In the 1970s, Congress created a process known as “budget reconciliation,” which allows many taxing and spending bills to become law with a simple majority vote, bypassing the filibuster. In 1996, Congress enacted the Congressional Review Act, which allows Congress to overturn recent federal agency regulations without having to deal with the filibuster.
And in the present-day Senate, filibuster reforms have been enacted fairly often. In 2011, a narrow Senate majority voted to strip away some of the minority’s power to force votes on amendments to a bill. In 2013, the Senate enacted a temporary measure that limited the minority’s ability to delay confirmation votes once the Senate agreed to end debate on a particular nominee, and a version of this rule was made permanent in 2019 (though nothing is truly permanent because a future Senate could always change this rule again). The Senate voted to allow non-Supreme Court nominees to be confirmed with a simple majority vote in 2013, and it voted to allow Supreme Court justices to be confirmed by a simple majority in 2017.
Indeed, this brief account of the filibuster’s history drastically undersells how often Congress creates exceptions. In her book Exceptions to the Rule: The Politics of Filibuster Limitations in the US Senate, the Brookings Institution’s Molly Reynolds writes that “a careful review of the historical record has identified 161” provisions of law that prevent “some future piece of legislation from being filibustered on the floor of the Senate.” This includes legislation fast-tracking votes on trade negotiations, expediting votes on military base closures, and allowing Congress to bypass the filibuster for certain regulatory and budgetary matters.”
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“there are four broad ways that senators can weaken the filibuster without eliminating it altogether.”
“Make fewer bills subject to the filibuster”
“Reduce the power of individual rogue senators: The Senate could make it harder to initiate a filibuster. Right now, unanimous consent is required to hold a vote without invoking the time-consuming cloture process. But the rules could be changed to allow an immediate vote unless a larger bloc of senators — perhaps two or five or 10 — objected to such a vote, instead of just one.”
“Make it easier to break a filibuster”
“Reduce or eliminate the time it takes to invoke cloture: The Senate could reduce the amount of time necessary to invoke cloture and conduct a final vote. This could be done by allowing a swifter vote on a cloture petition, by reducing or eliminating the time devoted to post-closure debate, or both.”
“Senate Minority Leader Mitch McConnell is no longer holding up the Senate organizing resolution — after two Democrats confirmed that they won’t be blowing up the legislative filibuster any time soon.
In the past few weeks, Senate Majority Leader Chuck Schumer and McConnell have been working to negotiate the organizing resolution — which governs committee membership and funding allocation — in the 50-50 Senate. The leaders had previously been at an impasse because McConnell had demanded that Democrats commit to keeping the legislative filibuster intact as part of the resolution — something Schumer was unwilling to do, since it would reduce the party’s leverage in negotiations over future legislation.
Since the organizing resolution could be filibustered — and would need 60 votes to pass — McConnell’s opposition effectively allowed him to block the measure from advancing.
And while he didn’t get the changes to the organizing resolution he wanted, McConnell’s approach still worked, in a way: Amid the impasse over the agreement, two Senate Democrats — Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) — publicly restated that they would not vote to eliminate the filibuster. Without their backing, Democrats simply won’t have the numbers to do a rules change: All 50 members of the caucus would need to get behind a change to the filibuster for it to happen. (This position is consistent with stances both lawmakers have vocalized before.)”
“The filibuster, which in its current form prevents a vote on legislation without 60 votes to cut off debate, was first used in 1837 during the controversy over the Second Bank of the United States, and it has been deployed many times since for reasons having nothing to do with government-enforced white supremacy.
It is true that segregationists used the filibuster to oppose civil rights legislation in the 1950s and ’60s. Most famously, Sen. Strom Thurmond, then a Democrat representing South Carolina, spoke for more than 24 hours to impede passage of the Civil Rights Act of 1957, which aimed to protect the voting rights of African Americans in the South. Southern legislators—including Sen. Robert Byrd (D–W.Va.), an ardent defender of Senate traditions—also used the filibuster in an unsuccessful attempt to block the Civil Rights Act of 1964, which banned segregation in public schools and racial discrimination in voting requirements, employment, and places of public accommodation.
But that is just a snapshot of the filibuster’s potential uses, which can be either malign or beneficial, depending on the target and one’s view of the legislation’s merits. Just as the principle of federalism does not qualify as a “Jim Crow relic” simply because segregationists invoked it, the filibuster cannot be deemed irredeemable simply because they found it useful. Like other restraints on the majority’s will—including those mandated by the Constitution, such as requiring bicameral approval of legislation and the president’s assent in the absence of a congressional supermajority—the filibuster is an ideologically neutral obstacle that makes it harder to pass laws. Whether you think its net impact is good or bad is apt to depend not only on which party happens to be in power but also on your general view of the work that Congress does.
The filibuster was not part of the original constitutional design. It arose from a rule change that Vice President Aaron Burr urged in 1805. As George Washington University political scientist Sarah Binder explained during a 2010 Senate hearing, Burr thought the chamber’s rule book was cluttered with unnecessary provisions, including what was known as the “previous question” motion, which it turned out could be used to close debate with a simple majority. Unlike the Senate, the House of Representatives retained that rule.
“Today, we know that a simple majority in the House can use the rule to cut off debate,” Binder said. “But in 1805, neither chamber used the rule that way. Majorities were still experimenting with it. And so when Aaron Burr said, ‘Get rid of the previous question motion,’ the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book.” In other words, “the filibuster was created by mistake.””
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“In 1917, Woodrow Wilson, outraged by Republican senators’ filibustering of his proposal to arm merchant ships as a deterrent to German U-boats, demanded reform to disempower this “little group of willful men.” The Senate responded by adopting Rule 22, which empowered a two-thirds majority to cut off debate—a compromise between Democrats who favored a simple-majority rule and Republicans who resisted any change. In 1975, the Senate reduced the majority required for cloture from two-thirds to three-fifths, or from from 67 to 60 votes in a chamber with 100 members.”