The Rise and Fall of the Filibuster

By Gabriel Maliha
Gabriel Maliha is a senior at the University of Pennsylvania studying criminology.

The recent consideration by the Senate of Supreme Court nominee Neil Gorsuch and other important priorities by the new administration has brought to the fore a renewed debate about the Senate filibuster. The procedure was originally conceived as an opportunity for the upper chamber and its members to entertain open and unlimited debate on a particular bill or nominee to convince colleagues of the validity of a particular view. Over the years, it has become a parliamentary obstructive device used by minorities in the Senate to prevent votes and ultimately decisions on specific business before the chamber. [1]

The filibuster was not part of the  original 1789 Senate rules but became so shortly thereafter in 1806. Former Vice President Aaron Burr suggested eliminating limits on debate as would be worthy of a “great deliberative body” and the Senate obliged. [2] The dilatory process was used sparingly until a Democratic minority tried to block a banking bill in 1841. The sponsors threatened but failed to eliminate the filibuster. In 1917, a Republican minority blocked a bill supported by President Wilson to arm merchant marine vessels during WWI. The Senate, under popular pressure, created rule 22, the cloture motion, which allows ending debates if 2/3 of Senators present and voting concur. [3] The 1960’s witnessed a number of highly charged filibusters by Senate Democrats, including attempts to block the 1964 Civil Rights Act. In 1975, the Senate lowered cloture requirements to 3/5 of Senate membership. [4,5]

The filibuster rules remained unchanged until 2013, when the Senate Democrat majority, frustrated by minority filibusters for executive appointees and Federal District Judges, practically did away with the filibuster for all nominees except for those to the Supreme Court. It remains available to block legislation except budgetary resolution, which is not amenable to filibuster by statute. To get around the 2/3 supermajority required to amend Senate rules, Democrats appealed to Senate president (former Vice President Biden) on a point of order and he ruled the filibuster unconstitutional. The Democrat majority affirmed the ruling with a simple majority.

In 1892, the Supreme Court in United States v. Ballin ruled that the Senate may change its rules by a simple majority. [6] Still, the Senate is empowered under Article I, Section 5 of the Constitution to determine the rules of its own proceedings. It elected to continue the filibuster for 225 years until the fundamental changes introduced in 2013. [7]

Opponents of the filibuster charge that minorities in more recent Senates have abused the rules by using the filibuster frequently to block the agenda and nominees of opposing administrations. They cite the fact that 600 of the 1300 filibusters mounted since 1917 have occurred between 2001 and 2013. [8] Therefore, a device meant to uphold minority rights in blocking fundamental legislation is no longer a last ditch effort, but a routine undertaking. Further, with the rule change in 1975 supplanting the “talking filibuster” for the “virtual filibuster,” filibustering senators do not even have to address the floor or be present physically in the chamber. [9] They conclude that the filibuster is no longer a tactic meant to allow senators to convince colleagues of the validity of specific positions by advancing arguments and debate.

Proponents of the filibuster maintain that the filibuster was part of the early Senates in the young republic. It is consistent with the Founding Fathers’ persistent concern that majorities not trample minority rights, especially on important issues. The filibuster is, also, consistent with constitutional design for the upper chamber to “cool down” the enthusiasm of the people’s house. It is important to note that in that regard, only one third of the Senate membership is up for election every two years, while the entire House has to come before the electorate every time. Further, the filibuster is sound public policy, as it encourages bipartisanship in the Senate to produce greater consensus support for legislation and nominees of the President. It encourages legislative compromise enabling the minority to influence legislation and choice of nominees by the executive branch and therefore enables long term stability for statutes and greater confidence in public servants in the executive branch.

On April 6, the Senate abolished the supermajority requirement for cloture on Supreme Court nominees and confirmed Judge Gorsuch to the high bench on April 7. This was not a dramatic or unexpected step, as it was clear that once the Senate had broken with the long standing tradition of accommodating minority rights in 2013, the next step became much easier. Wise senators on both sides of the aisle have understood for more than two centuries that minority and majority status is far from permanent and is always one election away from potential change. Short term advantage is always more gratifying than taking the long view but not necessarily better in the long term.


[1] “Precedence of motions (Rule XXII).” Rules of the Senate. United States Senate.
[2] Binder, Sarah. “The History of the Filibuster.” Brookings Institution (April 22, 2010). https://www.Brookings.edu/testimonies/the-history-of-the-filibuster/
[3] “Filibuster and Cloture.” United States Senate. http://www.senate.gov/artandhistory/history/common briefing/filibuster-cloture.htm.
[4] “Party Division in the Senate, 1789- present.” United States Senate.
[5] O’Keefe, Ed and Kane, Paul. “A brief history of the Senate filibuster fight.”  The Washington Post. (Nov. 21, 2013).
[6] US v. Ballin 144 U.S. 1 (1892).
[7] O’Keefe and Kane, 2013.
[8] Barry, Rick. “Understanding the Filibuster.” U.S. Senate. http://www.brookings.edu/research/tetimony/2010/04/22-filibuster-binder.
[9] “Understanding the Filibuster: Purpose and History of the Filibuster.” http://www.nolabels.org/understanding-filibuster.
Photo Credit Flickr User: Wally Gobetz

The opinions and views expressed through 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.