The longest filibuster by a lone senator clocked in at 24 hours and 18 minutes.
It was 1957 and the filibuster was fast becoming associated with Southern Democrats set on blocking civil rights legislation. Sen. Strom Thurmond took to the Senate floor at 8:54 p.m. on Aug. 28 and began a nearly nonstop monologue on everything from the Declaration of Independence and states’ voting laws to Supreme Court decisions and newspaper editorials. His efforts failed to change a single vote, and the Civil Rights Act of 1957—aimed at ensuring all Americans had the right to vote—passed.
It was just one chapter in the filibuster’s controversial history.
This week, the filibuster is back in the spotlight as Senate Democrats ignited a fierce debate when they triggered the “nuclear option” to eliminate filibusters on presidential nominations.
To understand more about the current dispute and the history of the filibuster, George Washington Today talked to Sarah Binder, professor of political science and expert on Congress and legislative politics.
Q: What is the origin of filibusters? When did they become prevalent in the Senate?
A: The Constitution says nothing about the filibuster, and the original rules in the Senate did not allow for them either. In fact, I have long suspected that filibusters arose in the Senate by mistake. How so? The House and Senate rulebooks in 1789 were nearly identical. Both rulebooks included what is known as the “previous question” motion. The House kept their motion, and today it empowers a simple majority to cut off debate. The Senate no longer has that rule on its books, and that’s what allows a minority of the chamber to filibuster.
What happened to the Senate’s rule? In 1805, Vice President Aaron Burr was presiding over the Senate (freshly indicted for the murder of Alexander Hamilton), and he suggested that the Senate clean up its rulebook. He singled out the previous question motion since it was rarely used. 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 Senate rules. And that’s how the Senate got its filibuster: Senators got rid of the one rule that can be used to prevent filibusters.
There were an awful lot of filibusters in the 19th- and early 20th-century Senate. But filibustering declined when Southern senators began using the filibuster to block civil rights legislation in the Senate in the middle of the 20th century. Once civil rights measures were enacted in the 1960s, the taboo against using filibusters melted away. As the government grew in the 1970s and the parties became increasingly polarized in the 1980s and 1990s, filibustering grew exponentially.
Q: What is cloture? How was it introduced in the Senate?
A: Cloture is the process for cutting off debate in the Senate and bringing the Senate to a vote on a pending matter. The cloture rule was created in 1917 in the run up to the nation’s entry into World War I. A small group of obstructionist senators were blocking a bill deemed essential for the security of the United States on the cusp of war. President Woodrow Wilson went on a warpath against that little group of senators, and the opposition eventually folded. The end result was the creation of the Senate cloture rule that, at the time, required two-thirds of senators to vote to break a filibuster.
Q: Senate Democrats have triggered the “nuclear option” for filibusters. What does that mean? How significant will this change be to how the Senate functions?
A: The “nuclear option” is the name given to a particular way in which a majority of the Senate can change the rules of the chamber. The formal process for changing Senate rules requires a two-thirds vote of the Senate to break a filibuster of the rule change. (Yes, you can filibuster a change to the filibuster rule.) But the nuclear option circumvents the formal rules by empowering a majority to declare that a majority can end debate on a contested matter. In this case, the majority argued that it only took a majority to cut off debate on nominations.
This is a landmark change in how the Senate will function because senators have lost their right to filibuster executive and judicial nominations (except for the Supreme Court). When the president’s party controls the Senate, there will be little reason for the president to consult with the opposition party over who to put on the federal bench—freeing the president to stack the bench with judges who are likely to share the president’s legal and policy priorities.
Q: Does the nuclear option break Senate rules?
A: The nuclear option as it played out Thursday creates a new precedent against filibustering nominees, which amounts to a new way of interpreting Senate rules. Democrats didn’t exactly “break the rules” to do so, because majorities have always had the ability to set new precedents by majority vote. That said, past majorities haven’t tackled quite such an important change via the nuclear option.
Q: Have there been more and/or longer filibusters in recent years?
A: There has been an exponential increase in the number of filibusters in recent years. Filibusters haven’t gotten any longer though, because senators are almost never expected to go to the chamber floor to carry out their filibusters. Instead, the mere threat to filibuster has been sufficient to derail the measure or nomination at hand. The ease with which senators can filibuster has certainly helped to fuel their rise.