The filibuster may be one of the biggest issues facing the current Congress, but filibusters aren’t as dull as they seem. In fact, Mae West, Jimmy Stewart, and Aaron Burr are all part of filibuster folklore.
In some ways, the filibuster is as significant an issue as gun violence and immigration. That’s because a filibuster controls which laws the Senate can vote on. And bills can’t become laws unless the Senate approves legislation, along with the House.
But how much do you know about this seemingly simple procedural rule?
Let’s start with a basic definition and look at some interesting facts related to filibustering.
According to Dictionary.com, here’s a filibuster in a nutshell:
a. the use of irregular or obstructive tactics by a member of a legislative assembly to prevent the adoption of a measure generally favored or to force a decision against the will of the majority.
b. an exceptionally long speech, as one lasting for a day or days, or a series of such speeches to accomplish this purpose.
c. a member of a legislature who makes such a speech.
The House of Representatives doesn’t use filibusters anymore. When the House got bigger, it moved away from filibusters in 1842.
In the current Senate, a member doesn’t need to speak on the floor, in a filibuster, to block a vote from happening. The filibuster can even be done by email.
The use of “silent” filibusters is one of the issues that Senate Majority Leader Harry Reid and his Republican counterparts are debating.
According to the current Senate rules, the opposing party can indicate that is has 41 out of 100 voters that will support a filibuster by defeating a vote to block it. The majority party then needs to get 60 votes together to approve a time limit for a debate about the bill.
So a senator doesn’t need to jump up and rant in public for hours to prevent a bill from passing. That senator just needs to issue a warning that there are enough votes to support a filibuster.
Senator Reid says a streamlined filibuster process will make the Senate run smoother. Reid’s opponents want a simpler process, too, but they don’t agree with Reid on the details.
One reason both sides want filibuster reform is that the prior 112th Congress passed the fewest number of bills, about 220, on record since 1947. In comparison, 115 cloture motions were filed to contest a silent filibuster.
The cloture motion dates back to President Woodrow Wilson, and it basically calls the minority party’s bluff by forcing a vote to see if 60 senators will approve a time limit on a debate about passing a bill.
One big issue Senator Reid and Senator Minority Leader Mitch McConnell are discussing is the return of the “talking filibuster" to replace the silent filibuster.
In its original form, a senator could “grab” the Senate floor and stall a bill by speaking for as long as he or she could stay awake.
The scene with Jimmy Stewart in Mr. Smith Goes to Washington is a famous example of a talking filibuster, where Smith’s character collapses after a 24-hour filibuster in the 1939 film.
A famous real-life filibuster involved Senator Strom Thurmond, who held the Senate floor for 24 hours in an attempt to block the Civil Rights Act of 1957.
According to the Senate website, a group of senators also staged at 57-day filibuster to protest the Civil Rights Act of 1964, until a successful cloture vote shut down the filibuster.
The filibuster also has a cousin called the “hold.”
A hold is a private communication to Senate leadership from a member who objects to, or wants more time to consider, a bill.
A hold can block legislative action for several days because the Senate will ask for the unanimous consent of its members to move some measures along, and the member asking for the hold won't agree.
One type of hold is called the Mae West hold, because of her famous movie line, “Come up and see me sometime.” A senator using a Mae West hold is indicating a desire for a closed-door meeting that could lead to a compromise.
Another is called the Tag Team hold, where multiple senators will take turns making hold requests. This will stall legislation or the approval of presidential appointments when a different senator files a hold request within 48 hours of a previous request.
Filibusters and similar tactics aren’t new in the world of politics. One of the first recorded masters of the filibusters was the ancient Roman politician Cato the Younger.
In Rome’s senate, Cato would speak until sunset, which was the official ending of a Senate session. One of his last filibusters was to oppose Julius Caeser’s return to Rome in 60 B.C.
Caeser found a political way around Cato’s filibuster and was able to grab power in Rome anyway.
In an article in The Atlantic, authors Rob Goodman and Jimmy Soni said that Rome’s problems with filibusters weren’t lost on the Founding Fathers, which is why the filibuster isn’t spelled out in the Constitution.
“Our Founders were deeply read in classical history, and they had good reason to fear the consequences of a legislature addicted to minority rule,” they said. “As Alexander Hamilton wrote in The Federalist No. 22, ‘If a pertinacious minority can control the opinion of a majority...[the government's] situation must always savor of weakness, sometimes border upon anarchy.’”
The Constitution does allow the Senate to make its own rules in Article I, Section 5.
And it turns out one of the most contentious Founding Fathers can claim to be the father of the filibuster: Vice President Aaron Burr.
Political scientist Sarah Binder testified before the Senate in 2010 about the origin of the filibuster.
Binder said Burr told the Senate in 1805 that it should eliminate a rule that automatically cut off floor debate, called the previous question motion, because he thought it wasn’t needed. (Basically, gentlemen yielded the floor in 1805.)
“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,” she said.
The first Senate filibuster took place in 1837, so it took the Senate about 32 years to figure out the procedure.
Binder said in her remarks that the filibuster was more of an accident than anything else.
“The history of extended debate in the Senate belies the received wisdom that the filibuster was an original, Constitutional feature of the Senate. The filibuster is more accurately viewed as the unanticipated consequence of an early change to Senate rules,” she said.
Scott Bomboy is the editor-in-chief of the National Constitution Center.
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