Filibustering in the Modern Senate

In the first two parts of Constitution Daily’s series on the filibuster, we looked at its origins in the earliest sessions of the Senate and the age of unlimited speech in the Senate until 1917. In part three, the filibuster enters the silent era in the 1970s after a half-century of controversy.

In March 1917, the Senate ended its long tradition of unlimited speech by allowing a floor vote to end filibusters. However, the rules change did little to curb obstruction in the Senate until 1975, when a new system allowed Senators to block a floor vote without spending hours on their feet speaking on various topics.

On March 9, 1917, the Senate approved Senate Rule XXII, following public backlash against a filibuster from 11 Senators that prevented the arming of merchant ships on the eve of World War I. The new “cloture” rule allowed two-thirds of the members present and voting on Senate the floor to end floor debate by limiting speaking times for Senators. In 1940, historian Franklin Burdette noted that the Senators understood that the super-majority requirements were intended to be used infrequently—in particular, to prevent “congressional paralysis” caused by one or a handful of Senators.

At least one Senator, George W. Norris, was convinced that a constitutional change also would limit the filibuster’s effectiveness. Norris campaigned to change the starting date of Congress from March 4 to January 3, eliminating the “short session” that made it much easier for filibusters to run out the clock on legislation.

Before the 20th Amendment, Congressional elections were held in November, as they are today. But Congress resumed on the first Monday in December, and a new Congress began on March 4th of odd-numbered years. This guaranteed that the last session of a Congress would be a lame-duck session that lasted from December 1st until March 4th. Norris’s efforts came to fruition with the amendment’s ratification in 1935, but the new constitutional amendment did little to stop delaying tactics.

The first successful cloture vote was in 1919 to stop a filibuster against a vote on the Treaty of Versailles that concluded World War I. Over the next 40 years, only five other cloture votes would prevail in the Senate due to the two-thirds vote requirement. Filibusters were used extensively in that time period to block civil rights bills, including anti-lynching laws. In late 1937 and early 1938, Southern members used the filibuster and delaying tactics over 29 days to defeat a cloture vote and block the Costigan-Wagner Anti-Lynching Bill.

Other prominent modern filibusters included several self-promotional efforts from Louisiana Senator Huey Long in the 1930s, including a 15 ½ hour filibuster in 1935 that supported patronage powers for Senators. Also noteworthy was a marathon 22 ½ hour filibuster from Senator Wayne Morse in 1953 about oil legislation.  But it was Strom Thurmond’s 1957 filibuster for 24 hours, in a failed effort to block a civil rights bill, that set the record for the longest one-person filibuster. Thurmond’s effort was a preview of perhaps the most significant group filibuster in Senate history. In April 1964, a group of Southern Senators led by Richard Russell, Strom Thurmond, Robert Byrd, William Fulbright and Sam Ervin started a 60-day filibuster to block the landmark Civil Rights Act of 1964. The effort ultimately failed. Despite more than 100 hours added floor debate, the Senate passed the act in June 1964.

The Age of the Silent Filibuster

Through the 1960s, other traditional filibusters failed, including a one-month effort to block the Voting Rights Act, a filibuster against the Fair Housing Act of 1968, and an effort to defeat the Voting Rights Act’s extension in 1970. But the Senate grew more concerned about the time spent on the filibuster process. Reforms introduced by Senator Mike Mansfield in 1972 introduced a “two-track” legislative system to the Senate. From then on, the Senate could divide its schedule to consider a filibuster at one time during the day, and then conduct its regular business at a different time. This effectively ended the power of one Senator or a group of Senators to obstruct all business in the chamber during a filibuster effort.

Then a Rule XXII change in 1975 reduced the number of Senators needed to invoke cloture, or end a filibuster, to 60 members from the old requirement of two-thirds of the members present and voting on the floor. Combined with the new two-track legislative system that allowed the Senate to conduct business without obstruction from a filibuster, the old-style speaking filibuster mostly went into retirement.

Scholars Catherine Fisk and Erwin Chemerinsky have noted that the “adoption of the two-track system changed the game profoundly. It created the silent filibuster—a Senator could filibuster without uttering a word on the Senate floor.” Today’s system is much more about the threat of a filibuster blocking a measure from consideration by the full Senate­, and not the act of a Senator taking the floor and speaking for hours.

When a Senator signals the intent to filibuster, an informal cloture process starts to determine if 60 votes exist to move a measure forward in two ways. One cloture vote is to approve a motion to consider a measure; the second vote is on the actual measure. If either cloture vote fails, the measure remains in limbo. In recent years, the Senate also used parliamentary procedures to eliminate the 60-vote cloture requirement for votes on executive and some judicial nominees in 2013 and Supreme Court nominees in 2017, and to use a simple majority vote instead.

And there are also important legislative measures and votes in the Senate exempt from cloture requirements and immune from the filibuster. Congress approved the Budget Reconciliation Act of 1974, which allows it to add programs related to spending, revenue or the debt limit in a combined Omnibus bill. The Senate Budget Committee and the Parliamentarian determine if any of the proposed programs don’t meet budget guidelines. Once the reconciled bill gets through the committee, it is subject to a simple majority vote in the Senate and can’t be blocked by a filibuster threat.

There are still other ways the Senators can stall votes on bills and other measures. For example, the Congressional Record reported in 2017 that Senators in the minority of a cloture vote can force a process that lasts 15 days to get a measure to a final vote. And the CRS says the timing of a silent filibuster can be important as a negotiating point if it comes close to the end of the term of the sitting Congress. “Toward the end of each session . . . and especially as the Senate approaches sine die adjournment at the end of the second session, time becomes increasingly scarce and precious,” the service observed in 2017.

Scott Bomboy is the editor in chief of the National Constitution Center.