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A People's History Of The Filibuster And Budget Reconciliation, Part 1

Max Kennerly
Max Kennerly
Raising the minimum wage requires just 51 votes in the Senate. But it will require 60 votes to get to that vote because—deep breath—the Senate Parliamentarian ruled the $54 billion in changes to outlays and revenues caused by the Raise the Wage Act are merely incidental to the non-budgetary components and so under the Byrd rule the provision is extraneous to budget reconciliation and thus subject to a permanent Republican filibuster in which no one is actually speaking but which cannot be ended without 60 votes for cloture.
The same fate awaits most of the Democrats’ agenda that can’t be passed through reconciliation: major legislation stalled by the 60-vote threshold to end nominal “Senate debates” that aren’t actually occurring. Yet, the next time Republicans are in power they’ll be able to easily pass legislation using reconciliation with merely 51 votes, just as they did with the 2017 tax cuts and opening up the Arctic National Wildlife Refuge to oil and gas drilling.
This situation is ludicrous and it has nothing to do with the Constitution nor the traditions of the Senate: the current “60-votes for all legislation unless the Parliamentarian says it complies with the Byrd rule, in which case 51 votes” framework arose in 1993. It’s younger than Taylor Swift.
People who defend this system routinely jump to vague abstractions about “deliberative process” and “minority rights” because the actual history is squarely against them. Senator Byrd, for whom the Byrd rule is named, was quite sure that a filibuster could not stop a determined majority: “I wish to say again that in such a situation in the future, if 51 Senators were to vote to uphold the ruling of the Chair, we would have majority cloture.”
But we’ll come back to him. Let’s see how minor rule changes and mythmaking created our broken system, and some possible ways to restore the Senate—so long as all 50 Democratic Senators are willing to do it.

The Framers Made The Senate Majority-Rule
In Federalist #22, Hamilton addressed whether Congress should pass national legislation through a simple majority or a supermajority, such as with two-thirds concurrence. He was blunt: a supermajority system is a terrible idea.
[W]hat at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. …
The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.
The “Polish diet” he refers to was the Sejm of the Polish–Lithuanian Commonwealth, which but in the later part of the 17th century adopted the liberum veto empowering any legislator to nullify the whole legislature’s work. Rather than promote unanimity, the liberum veto provoked a civil war and enabled a foreign invasion. Hamilton and the rest of the Framers were keen not to repeat that mistake. (The Sejm scrapped it in 1791.)
Accordingly, under the Constitution, everything the Senate does is by majority rule except:
  1. overriding presidential vetoes, Article I, Section 7, clause 2;
  2. convicting and removing Federal officers through impeachment proceedings, Article I, Section 3, clause 6;
  3. ratifying treaties, Article II, Section 2, clause 2;
  4. expelling members, Article I, Section 5, clause 2; and
  5. proposing constitutional amendments, Article V.
Otherwise, all of the federal government’s powers, like declaring war, raising armies, imposing taxes, taking on public debts, coining money, promoting the general welfare, and creating or altering federal courts, are exercised by a mere majority vote. That’s still the case today. The only changes have been two new powers that require two-thirds vote: expelling insurrectionists (14th Amendment) and declaring the President incapacitated (25th Amendment).
Similarly, in actual practice in the early Senate, there was no filibuster. Thomas Jefferson’s Manual of Parliamentary Practice made clear that “no one is to speak impertinently or beside the question, superfluously or tediously,” as well as a requirement that a member called to order “sit down until the President [of the chamber] shall have determined whether he is in order or not.” The first Senate’s rules also included a “previous question” motion that allowed a simple majority to end debate.
The closest that the Founding generation came to anything remotely like a “filibuster” was in 1790, and it was in the House. The issue was moving Congress to Philadelphia. Two days after a failed vote in the Senate, proponents of the move noticed it was raining, so they tried to force a quick vote in the House with the hopes of immediately sending the bill to the Senate, because they figured the rain would make it impossible for a bedridden anti-Philadelphia Senator to get to the Senate. To ensure the Senator could be there for the vote, two anti-Philadelphia House members blathered on for a few hours until Congress adjourned for the day. This “filibuster” lasted less than a day, and it wasn’t the minority preventing the majority from accomplishing their goals, it was the majority preventing the minority from taking advantage of an absence.
The Filibuster Was A Murderer's Mistake
The years of 1799-1806 were quite eventful for Aaron Burr: he founded a bank by fraudulently claiming it would be a water company (it’s still around as JPMorgan Chase), got elected Vice President, killed Alexander Hamilton, and accidentally invented the filibuster.
Yes, accidentally. As Sarah Binder recounts, nobody at the time thought anything of it, they were just cleaning up their rules:
In 1805, Vice President Aaron Burr was presiding over the Senate (freshly indicted for the murder of Alexander Hamilton), and he offered this advice. He said something like this. You are a great deliberative body. But a truly great Senate would have a cleaner rule book. Yours is a mess. You have lots of rules that do the same thing. And he singles out the previous question motion. Now, today, we know that a simple majority in the House can use the rule to cut off debate. 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.
By 1836, every signatory to the Constitution had died, and there still had not been a single instance of a minority using a filibuster to block the majority from passing legislation. The worst obstruction the Senate had to offer was some dilatory motions, like on the evening of March 2, 1831, when a handful of Senators filed five motions to adjourn rather than deal with a bill to alter a drawbridge across the Potomac.
They didn’t even have a word for “filibuster,” much less any rule recognizing a right to unlimited debate. If anything, the Senate had the opposite, at least when it came to slavery: a “gag rule” in the form of a complicated procedural hurdle to prevent debate on petitions to abolish slavery in the District of Columbia. The Senate doesn’t have a tradition of unlimited debate, it has a tradition of the majority doing what it wants to do.
The Golden Age of the Senate
High school textbooks are enamored with “the Great Triumvirate,” the “Immortal Trio” of Henry Clay, Daniel Webster, and John C. Calhoun, who ruled the “Golden Age” of the Senate in the period after the Founding but before the Civil War.
During that whole time, the Senate was a majority-rule body, and there was no supermajority requirement just to hold a vote.
The first attempted filibuster, though not called that, was in 1837, and it was over something stupid: President Jackson’s allies were trying to expunge from the Senate record a censure resolution that Whigs had passed three years prior. The Whigs’ proto-filibuster failed in the end, the expungement was ordered, and the Senate devolved into pandemonium which included a Senator being dragged into the Senate by the Sergeant-at-Arms then dragged back out again when he got saucy with the presiding officer. “Am I not permitted to speak in my own defense?” he cried, and the answer was no.
In 1841, another filibuster (still not called that) happens over something similarly stupid: patronage jobs at the Congressional Globe. It lasts 10 days and fails. Later that year there’s finally a filibuster over something important, the creation of a national bank, and it also fails after 14 days. There are also filibusters over how to share the proceeds from the sale of public land, and they also fail.
Around this time, the 1840s & 1850s, is when Senators start grumbling over what the rules on debate should be. Henry Clay, “the Great Compromiser,” did not think dilatory behavior was consistent with compromise, and he wanted a one-hour debate limit and to restore the previous question motion to terminate debate, as did Stephen Douglas. John C. Calhoun is, no surprise, an enormous hypocrite about it: he had pushed the gag rule on abolition petitions and had voted to limit debate in the House, but now he opposed limits. Willie Mangum had the wittiest view: “this desire for much speaking has become almost a complete nuisance in this body,” which needed “some mode of arresting this eternal talking.”
Still, the eternal talking was a nuisance, not the permanent blockade on legislation that we have today. In 1846, during the filibuster over the Oregon territory, the Senate still unanimously agreed to set a date in the future when the vote would be taken with no further debate. In 1854, the Kansas-Nebraska Act was extraordinarily controversial (not least because it reversed the Missouri Compromise), and the Senate had no rule for cloture, and yet it passed two months after being introduced.
The first time the Senate implicitly recognized the possibility of unlimited debate was in 1856, when the Senate voted down an amendment to the rules which would’ve required a Senator “confine himself to the question under debate.” Yet, even with this theoretically unlimited debate, total obstruction was still rare.
In Filibustering: A Political History of Obstruction in the House and Senate, Gregory Koger counted up the amount of obstruction in the first century of the Senate. His definition of “filibuster” was deliberately broad, stretching beyond what we typically think of as a filibuster to include tactics like dilatory motions to adjourn and disappearing quorums. His definition of success is similarly broad: if a bill was obstructed and failed, it was counted, even if the failure had nothing to do with the obstruction. As he says, “readers are encouraged to treat these results as suggestive.”
Yet, even with such a broad method of counting, from the ratification of the Constitution to the Civil War, there were fewer than a 40 attempted obstructions and the underlying measure still passed in all but a handful of circumstances. When we dive into the details, as best we can tell from the historical record, there is not a single instance of the minority in the Senate using procedural methods like the filibuster to indefinitely block legislation favored by the majority—which is today the default situation for every bill in the Senate.
The First Filibusters Mostly Failed: 1880-1917
The first Congressional use of the word “filibustering” to mean legislative obstruction is in the House in 1853, when one representative uses “filibustering” to mean “mercenary activities in Central and South America” and another representative rises and uses it as a quip against the Whigs to mean endless talking to obstruct legislation. “Filibustering” was used in the Senate in 1863, again with the understanding that it was an insult.
Despite our current politics, it is historically unusual for the Senate to be a “graveyard” for legislation. By and large, “there was more obstruction in the House than the Senate from 1789 to 1901.” The first time we begin to see an obstructionist Senate is in the 1880s and 1890s.
Yet, even those filibusters were unlike our present day endless-blockade, because they forced political compromises. The 1890 filibuster against a bill to provide federal supervision of Southern congressional elections succeeded in large part because the Southerners offered to support a silver bill in exchange for Northerners dropping the election bill.
That limited compromise of course meant another election supervision bill came back in 1891. Northerners like Henry Cabot Lodge and Nelson Aldrich had seen enough obstruction, and they set about restoring the “previous question” motion, which as we saw was present in the original Senate and was removed by accident. An early procedural vote passed 36 to 32.
Aldrich’s opponents used their weekend differently. They “spent Sunday in planning a coup,” according to the Washington Post. Word got around that Aldrich had let one of the senators in his camp leave town without securing a “pair,” or proxy, which would have ensured that his vote could still be counted even if he was not physically present. On Monday, Aldrich’s opponents pounced, carrying one ally, Senator Daniel Voorhees of Indiana, “from his sick bed to the Capitol,” while another, Senator James Eustis of Louisiana, “was brought from home,” the Post reported. …
Aldrich had not been expecting any important votes until later, and his allies—including the one who had left town—were not all present. But his opponents were, and they won the vote to scuttle Aldrich’s previous question bill by a single vote. Aldrich was unable to get his bill back to the floor, and his reform proposal was defeated, along with the Lodge bill to combat poll taxes.
That is to say, the filibuster survived (just barely) the proposed reforms of the 1890s not because Senators respected it as some sort of hallowed tradition, but because of partisan maneuvering and the raw exercise of power. As Henry Cabot Lodge said in 1893 while arguing for majority cloture:
There is another right more sacred in a legislative body than the right of debate, and that is the right to vote. … To vote without debating may be hasty, may be ill considered, may be rash; but to debate and never vote is imbecility.
Still, even in the broken Senate of 1880-1917, with filibusters but no cloture, it was exceedingly rare for the minority to thwart the majority’s efforts to pass new legislation. An 1893 filibuster on a silver bill went on for 46 days and failed.
In 1908, Robert LaFollette set a Senate record by speaking 18 hours straight through the night while filibustering a currency bill, surviving on turkey sandwiches and eggnog, until declaring one of his glasses of eggnog adulterated—which it might have been, or deliberately left out to spoil, because it was so toxic with the products of bacterial decay that it likely would’ve killed him. The filibuster ultimately failed, too, by way of an accidental yielding of the floor to a Senator who had just stepped out. That was the reality of the filibuster for most of its existence: any mistake, no matter how trivial, meant it was over. Today a filibuster somehow lives on indefinitely even when no one is doing anything.
What finally prompted the cloture rule was the wartime footing of World War I, when eleven Senators blocked a bill to arm merchant ships. The bill in question died when Congress adjourned on March 4, 1917, Woodrow Wilson blasted the Senators, and literally the next day the Senate held a special session and adopted the first cloture rule, which would end debate if two-thirds of Senators agreed.
Cloture Was Rarely Needed Before The 1950s
Even after 1917, filibustering remained an extreme measure and it rarely succeeded. From 1917 to 1933, 40% of all bills passed were by a margin too small to obtain cloture—bills which, under our current system, would likely be blocked indefinitely. There were zero cloture motions during FDR’s first term, even though Democrats didn’t have a filibuster-proof majority.
Mr. Smith Goes To Washington was released in 1939, and it included, of course, an extended filibuster. In the actual 76th Congress (1939-40), there were a mere nine filibusters (per Koger’s method, which defines filibuster broadly). One of them was to block a follow-up to the Hatch Act. A contemporary article in The New York Times is revealing:
The bill, designed to lay the same limitations on political work by State employees supported wholly or partially by Federal funds as are imposed on Federal workers, has the obvious support of a slim but firm majority composed of a non-partisan coalition in the Senate. However, twoscore Democrats, ranging from the most radical type of “liberals” to iron-clad conservatives, have demonstrated that, since they cannot defeat the bill, they have no inclination to permit a final vote on it, for the present at least.
The deadlock is comparable in many respects, as far as political strategy is concerned, to the impasse always reached over the Anti-Lynching Bill which, in successive sessions, has failed for many years to reach a final vote in the Senate.
Thus, as of 1940, using the filibuster to block a vote was still considered extraordinary, an unusual practice except when it came to blocking anti-lynching legislation. The filibuster of the Hatch Act amendment lasted two weeks and was then abandoned. Cloture wasn’t invoked, and the final vote in favor (58-28) was less than the two-thirds that would have been needed for cloture (64).
From 1917 to 1947, a thirty-year period covering from WWI to the Depression to the New Deal and through WWII, and when cloture required a two-thirds supermajority to succeed (rather than the present day 60 votes), there were a mere 15 instances in which a filibuster survived a cloture motion.
To put it another way to show just how recent the “tradition” of an obstructionist Senate is: when Joe Manchin was born in 1947, the Senate still operated almost entirely by majority-rule. No one claimed that legislation should be permanently blocked until a supermajority of Senators agreed to hold a vote. Obstructing legislation with a filibuster was by then a recognized procedure, but it was still highly unusual, and it only really worked once or twice during each two-year Congressional session, typically to block civil rights legislation.
Cloture was rarely needed, not least because of the numerous ways filibusters could fail. In 1948, when Manchin was a baby, Glen Taylor from Idaho (“The Singing Cowboy”) was filibustering a bill to extend the military draft when he read a telegram praising him as “the one honest Senator who respects his duty to represent the desires and interests of the people instead of the special interests of enemies of peace.” The presiding officer ruled that he had impugned the other Senators in violation of Rule 19 (the same rule Republicans used against Elizabeth Warren in 2017) and he was therefore out of order, which meant the floor had been yielded and the filibuster was over. The bill passed.
Yet, by the time Joe Manchin joined the Senate in 2010, filibusters were the rule, and points of order were irrelevant, because the filibuster didn’t require anyone actually filibuster. During Barack Obama’s eight-year Presidency, there were 154 failed cloture motions. In Manchin’s lifetime, the use of the filibuster to defeat legislation in the Senate went from happening once every two years to happening nearly twenty times a year.
The Filibuster Was Primarily Jim Crow's Shield
So what was being filibustered? You probably know this part already. Anti-lynching legislation was filibustered in 1922, 1935, and 1938. Anti-poll-tax legislation was filibustered in 1942, 1944, 1946, 1948, and 1962. Civil rights legislation was filibustered in 1946, 1950, 1957, 1960, 1962, 1964, 1965, 1966, 1968, 1972, and 1975, everything from the Civil Rights Acts to the Voting Rights Act to the Fair Housing Act to the Equal Employment Act.
And of course it’s during this time when Strom Thurmond set the record for filibustering, 24 hours and 18 minutes, against the already-toothless 1957 Civil Rights Act. He prepared by taking steam baths every day to dehydrate himself so he wouldn’t have to use the bathroom. In one of the many great examples of Senatorial trolling, fourteen hours into Thurmond’s one-man filibuster, Paul Douglas, the liberal Senator from Illinois, cheerfully strolled into the nearly-empty Senate chamber with a large pitcher of orange juice, poured a tall glass of it, and set them both at the lectern. One of Thurmond’s aides snatched it away. (The aide went on to be one of Richard Nixon’s dirty tricksters.)
I don’t need to tell you these filibusters were all a bunch of racist garbage. What’s critical here is how civil rights legislation was filibustered precisely because it was the most important issue to Southern Senators. The only other issue anywhere close in the frequency of filibusters were perceived threats to electoral advantage, hence filibusters of Alaska and Hawaii statehood and campaign finance reform. But there was no supermajority “threshold” that all legislation had to pass before it got a vote; instead, Senators had to carefully choose which matters they felt warranted a filibuster.
That rarity also made it possible to negotiate compromises to get through particular filibusters, such as when Lyndon Johnson exchanged support for the central Arizona water project to secure Carl Hayden’s vote for cloture on the 1964 Civil Rights Act. Between 1950 and 1970—the heyday of using the filibuster to block civil rights legislation, and while the two-thirds cloture rule was still in place—there were a mere 26 instances in which a filibuster prevailed over a cloture vote. It happened, on average, a little more than once a year.
In Obama’s second term, there were 94 such instances, more than twenty times every single year.
The Nightmare Of The Stealth Filibuster
We’ve already made it to 1970, and yet we still don’t have the current 60-votes-just-to-actually-vote Senate.
In 1972, after a failed cloture vote on employment discrimination legislation, Majority Leader Mike Mansfield devised the “two-track system,” in which the Senate spent the morning on filibustered legislation and the afternoon on other business. Catherine Fisk and Erwin Chemerinsky correctly call this “the stealth filibuster.”
The stealth filibuster is one of the primary sources of our problems today. As Josh Chafetz explains:
Several reasons have been suggested for the rise of the “sixty-vote Senate.” One major culprit is likely the introduction of separate legislative “tracks” in the early 1970s by Senate Majority Leader Mike Mansfield. “Tracking”—which did not involve any formal change to the Senate rules—is a procedure by which the Majority Leader, acting with the approval of the Minority Leader, can keep more than one bill pending on the Senate floor as unfinished business. The effect of the tracking system is that a filibuster no longer ties up the business of the Senate. Once a Senator announces an intention to filibuster a measure, the issue is simply kept on the back burner unless the majority can muster the sixty votes for cloture. This, of course, significantly decreases the costs of filibustering—no longer must a filibusterer justify his tying up the entire business of the Senate to his constituents or colleagues, and no longer must a filibusterer summon the physical endurance to hold the Senate floor. With such reduced costs, there was no longer any reason to treat the filibuster as an extraordinary measure, used in cases in which the minority had very intense preferences.
Chafetz’s chart sums it up:
Note how the stealth filibuster produces not just more filibustering, but also more successful filibustering, more instances in which a filibuster prevails over a cloture vote and thereby obstructs legislation. Remember how, between 1950 and 1970, there were a mere 26 instances in which a filibuster prevailed over a cloture vote? In just the 93rd Congress, 1973-1974, there were 22 such instances.
The numbers get even worse after 2009. From 2009 to 2020 (the 111th to 116th Congresses), there were 1,161 cloture motions, 971 votes on cloture, and 778 instances of cloture being invoked.
In part two, I’ll cover reconciliation, the Byrd rule, the rise of the Senate Parliamentarian, and how to move forward. Read part two here.
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Max Kennerly
Max Kennerly @maxkennerly

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