The Past, Present, and Future of the Senate Filibuster

By Oulai Pan

​Oulai "Audrey" Pan is a first-year student at the University of Pennsylvania's College of Arts and Sciences who plans to study political science and economics.

The filibuster, which refers to prolonged debate in the Senate, is perhaps one of the most discussed domestic political issues today.
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Though the filibuster is often seen as a tool which upholds the Senate’s tradition of unlimited debate, it actually originated from a simplification of Senate procedures in 1807. This included the deletion of a rule that would have allowed a simple majority to cut off debate on a bill. [1] Thus, from then onward, Senators could technically extend debate indefinitely to prevent the passage of a bill. However, there were few filibusters prior to the twentieth century, since Senators largely operated on a presumed majority rule. [2]

As the Senate grew larger and faced more controversial issues by the early twentieth century, obstructionist behavior became more prevalent—Senators revisited the lax rules regarding unlimited debate and began to use such loopholes to stop the passage of certain legislation. [3] As a result, prolonged debate has become a Senate fixture, differentiating it from the House, but frustration also mounted. 

In 1917, a cloture rule was adopted to end debate in the Senate, requiring a two-thirds supermajority (of present Senators) to do so. [4] The possibility of implementing cloture was brought up numerous times in prior decades, but it was simply filibustered by the minority. During World War I, the minority faced significant political pressure to aid the Allied powers, thus enabling the passage of cloture as a national security measure that allowed for the arming of U.S. merchant ships. [5]

However, due to the high threshold for ending debate, the filibuster became a tool frequently used to preserve segregationist laws in the twentieth century. Notably, half of the thirty bills obstructed by the filibuster between 1917 and 1994 involved Civil Rights [6], hence why opponents to the procedure now often refer to it as a ‘Jim Crow relic’. [7] Measures such as the anti-lynching bills of the 1920s and 1930s as well as legislation outlawing employment and housing discrimination were all derailed by the filibuster. [8] One of the longest filibusters in history, delivered by Senator Thurmond, was a twenty four hour endorsement of violent racism that blocked the Civil Rights Act of 1957. [9]

Since then, the cloture rule has been revised to only require sixty votes, or three-fifths of Senators. [10] Despite the revision, the filibuster is increasingly difficult to overcome considering the rising partisanship in Congress. In fact, about half of the approximately 2,000 filibusters since 1917 occurred within the last dozen years, drastically inhibiting Senate efficiency. [11]
In recent years, that has led to several erosions of the filibuster. In 2013, Senator Harry Reid, the Democratic Majority Leader at the time, led an effort that removed the filibuster for all presidential nominees, with the exception of ones for the Supreme Court. Reid cited ‘unprecedented obstruction’ as the reason behind reform, after several of President Obama’s federal court nominations failed due to insufficient Republican support. [12] This paved the way for further erosion of the filibuster. In 2017, Republican Senators voted to eliminate the filibuster for Supreme Court nominations as well, which led to the confirmation of Justice Neil Gorsuch, who otherwise may not have been confirmed. [13]

Despite the implementation of such limitations on the filibuster, its use has increased dramatically in recent years along with calls to completely eliminate it. Recently, it has been Democrats advocating for the filibuster’s end due to their frustration with Republican derailment of key priorities such as voting reform despite their control of the White House, the Senate, and the House of Representatives. [14] Historically, the majority party has always been the one pushing for the filibuster’s end, and the trend is not unique to a particular party.

This calls into question the legality of the ‘nuclear option.’ If a simple majority vote can eliminate a sixty-vote threshold, what enables the continued existence of such a threshold? The answer lies in the nature of the Senate. Unlike the House, which starts each two-year term with procedural votes, the Senate keeps its rules from previous terms, making reforms more difficult. At a surface level, all proposals can simply be filibustered, thus to eliminate the filibuster, sixty votes would be needed. This makes it impossible to eliminate: if the majority had sixty votes, they could simply invoke cloture to end debate. [15]

However, the Constitution presumes a majority rule in both legislative bodies unless otherwise specified (such as the two-thirds rule needed to override a veto). [16] Therefore, if a majority of Senators decide to completely rewrite Senate procedures one day, they technically have the power to do so. In a sense, the filibuster only exists because the majority allows it to.

Though ending the filibuster holds widespread Democratic support, many still caution against such action for good reason. For one, the Democrats are facing a difficult midterm election this year, and if they become the minority party, they may need the filibuster to block Republican legislation. From a less partisan perspective, the elimination of the filibuster may not be ideal for democracy. Though it may enable Democrats to pass critical packages such as voting reform, Republicans can just as easily undo such progress when they reclaim power in the Senate. 

Without the filibuster, every senatorial transfer of power may be accompanied by political whiplash and retaliation. Hints of such partisanship are already evident in the House, where a simple majority vote can reverse prior initiatives or remove Congresspeople from key committees. [17] Thus, the filibuster’s elimination may only serve to further partisanship. For example, on the issue of Supreme Court nominations, presidents are now more likely to nominate overtly partisan justices because they know that merely fifty-one votes are necessary to seat their nominee. [18]

Nonetheless, the filibuster as it is today is undoubtedly a flawed procedure; the mere threat of one is enough to completely block legislative proposals. [19] Thus, reforms are necessary for the Senate to remain a functioning legislative body. Though little discussed in mainstream media, scholars have developed several potential revisions which may preserve the filibuster but reduce the extent of its obstructionism.

One relatively straightforward option is to reduce the cloture threshold to fifty-five votes, which would necessitate some compromise between the two-parties but is easier to overcome compared to the sixty vote barrier. [20]
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Another option would be to “flip the numbers,” which essentially refers to changing the rules so that forty votes are necessary to continue debate, instead of sixty being needed to end it. [21] When the minority can no longer keep forty Senators in session to vote in favor of prolonging debate, then cloture would be invoked and a vote on the legislation would be called. This makes it far more difficult for the minority to filibuster, since they will need to keep forty Senators on the Senate floor at all times during filibusters. Therefore, this might be one of the only ways to return the filibuster to a seldom used tool reserved for truly controversial measures, and not one casually invoked to block any legislation the opposing party brings.

Despite the proposal of numerous reforms, the filibuster is unlikely to change in the near future. For one, procedural policy issues tend to only enter political discourse when it severely hinders the majority’s legislative goals. Given how senatorial power shifts between the two parties relatively often, deadlocks can easily outlast a party’s time in the majority. Moreover, advocacy on behalf of more radical positions on the filibuster, such as its complete abolishment, tend to be louder than ones for reform. As a result, anti-filibuster Senators have a greater incentive to introduce bills to end the filibuster, which are less likely to garner broader support within the chamber. Nevertheless, the Senate has always been an evolving legislative body; thus, there is reason for optimism regarding the eventual implementation of filibuster reform.

[1] Binder, Sarah A. “The History of the Filibuster.” Brookings Institute, January 17, 2020. https://www.brookings.edu/testimonies/the-history-of-the-filibuster.
[2] Amar, Akhil Reed, and Gary Hart. “How to End the Filibuster.” Slate Magazine, January 6, 2011. https://slate.com/news-and-politics/2011/01/how-to-end-the-filibuster.html. 
[3] Binder, “The History of the Filibuster.”

[4] “About Filibusters and Cloture: Historical Overview.” U.S. Senate, June 3, 2021. https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm. 
[5] Ibid.
[6] Lau, Tim. “The Filibuster, Explained.” Brennan Center for Justice, March 22, 2022. https://www.brennancenter.org/our-work/research-reports/filibuster-explained. 
[7] Snell, Kelsey. “In Push to End Filibuster, Democrats Point to Its Civil Rights-Era History.” NPR, March 30, 2021. https://www.npr.org/2021/03/30/982411563/in-push-to-end-filibuster-democrats-point-to-its-civil-rights-era-history. 
[8] Lau, “The Filibuster, Explained.”
[9] Hockenberry, John. “The Racist Filibuster We Can't Afford to Forget: The Takeaway.” WNYC Studios, August 30, 2016. https://www.wnycstudios.org/podcasts/takeaway/segments/racist-filibuster-we-cant-afford-forget. 
[10] “About Filibusters and Cloture: Historical Overview.”
[11] Lau, “The Filibuster, Explained.”
[12] Everett, Burgess. “Senate Goes for 'Nuclear Option'.” Politico, November 22, 2013. https://www.politico.com/story/2013/11/harry-reid-nuclear-option-100199. 
[13] Seitz-Wald, Alex. “The Nuclear Option: What It Is and Why It Matters.” NBC News Group, April 6, 2017. https://www.nbcnews.com/politics/congress/nuclear-option-what-it-why-it-matters-n742076. 
[14] Hagen, Lisa. “Republicans Block Voting Rights Bill Again, Triggering ...” U.S. News, January 19, 2022. https://www.usnews.com/news/politics/articles/2022-01-19/republicans-block-voting-rights-bill-again-triggering-action-on-filibuster-reform. 
[15] Reynolds, Molly E. “What Is the Senate Filibuster, and What Would It Take to Eliminate It?” Brookings Institute, December 28, 2021. https://www.brookings.edu/policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/.
[16] Amar and Hart, “How to End the Filibuster.”
[17] ​​Blake, Aaron. “Marjorie Taylor Greene Would Be in Rare Company If She Is Kicked off Her Committees.” The Washington Post, February 3, 2021. https://www.washingtonpost.com/politics/2021/02/03/congress-comittees-removed/. 
[18] Seitz-Wald, “The Nuclear Option: What It Is and Why It Matters.”
[19] Ornstein, Norm. “The Smart Way to Fix the Filibuster.” The Atlantic, September 3, 2020. https://www.theatlantic.com/ideas/archive/2020/09/fix-filibuster/615961/.
[20] Ibid.
[21] Ibid.
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The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.