President Joe Biden called Tuesday for a limited exception to overcome Republican opposition to the John Lewis Voting Rights Advancement Act and other voting protection bills.
Senate Democrats need all 50 senators who caucus with their party on board to enact a change — a task that seems unlikely given West Virginia Sen. Joe Manchin and Arizona Sen. Kyrsten Sinema's opposition.
The filibuster, once an obscure procedure, has been increasingly used to stall priorities of the majority coalition, most notably on issues relating to race and civil rights. When senators have been at their most intransigent, majority parties have created filibuster exceptions for key areas of legislating, including for executive and judicial appointments.
Defenders, including Manchin, Sinemaa and Iowa Sen. Chuck Grassley argue the supermajority rule requiring at least 60 votes to overcome a filibuster encourages bipartisan compromise and general decorum of the Senate. Republicans, including Senate Minority Leader Mitch McConnell, R-Ky., say the filibuster protects the rights of the minority party.
What is a filibuster?
A filibuster is a practice whereby any lawmaker can stall action by extending debate or using other tactics. Such strategies are as old as representative democracy – in 60 B.C., Cato the Younger effectively filibustered the Roman Senate.
The word "filibuster" has its origins in piracy. Dutch, French and Spanish all share words referring to "vribuyter," "flibutier" and "filibustero," or pirates who would plunder ships and colonies. The word was eventually imported into English as "flee-booter," meaning a pirate who steals loot or "booty."
By the 19th century, flee-booters had become "filibusters." The word became an insult in Congress, where politicians accused lawmakers who held up legislation with a filibuster of effectively raiding the Senate.
The American filibuster is 215 years old
The filibuster as a legislative tool was accidentally created in 1806, when the Senate, at the urging of Vice President Aaron Burr a year before, eliminated the "previous question" motion, a rarely used rule that allowed the Senate to vote to move on from an issue being debated. That unexpectedly opened the door for senators to continue debate on a topic indefinitely – the filibuster.
It wasn't regularly used until the mid-19th century, when senators used the tactic to stonewall debate over the limiting or abolition of slavery. There was no procedure to end a filibuster, so pro-slavery politicians such as Sen. John Calhoun of South Carolina stifled abolitionist and "free soil" measures against slavery's expansion with impunity.
The filibuster was effectively limited only by Senate norms and the personal relationships between lawmakers until 1917, when the Senate enacted the cloture rule. The rule, passed to support the American war effort in World War I, allowed two-thirds of senators to end debate on a topic.
The filibuster was infrequently used and often overruled by the governing coalition. The exception during the 20th century was civil rights law. Southern senators supportive of the Jim Crow system of racial segregation and white supremacy used the filibuster to vehemently oppose any expansion of educational, economic or voting rights for Black Americans.
The longest filibuster in U.S. history was South Carolina Sen. Strom Thurmond's filibuster of the Civil Rights Act of 1957; he spoke for 24 hours and 18 minutes in opposition. Thurmond and other Southern senators stalled the bill's passage from March to June 1957.
Senators also filibustered the Civil Rights Act of 1964 for two months until 71 senators came together for a cloture vote.
The evolution of the modern filibuster
Recent decades have seen the filibuster's influence over all types of legislation grow, causing frustrated majorities to create exceptions for when the practice can be used.
In 1975, the number of votes needed to invoke cloture was brought down to 60 votes. Later years brought minor limits on debate after a filibuster was ended.
The 1970s also saw the Senate adopt rules that allowed a senator to filibuster one topic while the chamber moved on to different business. The change, on top of the growing policy divisions between the two major parties and the increasing fragility of congressional majorities, caused the filibuster to be used for all types of Senate proceedings.
Starting in the 1990s, the filibuster progressively became a tool of the minority party to thwart the policy ambitions of the majority.
President Bill Clinton's health care package was stalled by filibusters, frustrating the White House so much it debated ending the rule. During the George W. Bush administration, Democrats used the filibuster to stop judicial nominees they saw as too radical.
In 2013, after Republicans stonewalled any judicial nominee from President Barack Obama, the Democratic Senate eliminated the filibuster's 60-vote threshold for the confirmation of lower court judges. Obama said the move was necessary to overcome "an unprecedented pattern of obstruction" from the opposition.
In 2017, Republicans expanded the judicial carve-out for the filibuster to include Supreme Court confirmations, clearing the way for Justice Neil Gorsuch to ascend to the high court.
The Senate has two ways to get around the modern filibuster: a "unanimous consent" motion and budget reconciliation. For a unanimous consent vote, all senators are asked if there are any objections to any debate on a given bill. If any senator objects, debate continues.
In budget reconciliation, a bill may be passed with a simple majority if all its provisions relate to the federal budget. This process was used to pass the American Rescue Plan, Democrats' $1.9 trillion spending package to help people struggling during the coronavirus pandemic.
Future of the filibuster
At the start of 2021, McConnell pressured Senate Majority Leader Chuck Schumer, D-N.Y., to promise to protect the legislative filibuster before Republicans would approve the rules to govern the new Congress. McConnell did so by effectively filibustering the rules package.
Manchin and Sinema allayed McConnell's concerns, when they promised they would not vote to abolish the supermajority threshold.
The episode summed up the current dynamic: Senior Democratic leaders see the rule as a stranglehold on their agenda, and governing in general. The pressure to pass at least some of the party's top priorities pushes Democratic leaders to call for filibuster changes.
“There’s no way under the sun that in 2021 that we are going to allow the filibuster to be used to deny voting rights. That just ain’t gonna happen. That would be catastrophic,” Democratic Whip James Clyburn, D-S.C., said March 7, directly calling out Manchin and Sinema.
Moderates have been difficult to read on the issue. Manchin, who briefly expressed openness to changing the filibuster, quickly backtracked and emphasized he would "never" change the rule.
Some Democrats on Capitol Hill are biding their time, assuming Republicans will force the issue by not compromising on any of Biden's policy priorities. “If the Republicans block S. 1, that will turn up the heat on taking away Mitch McConnell's veto," Sen. Elizabeth Warren, D-Mass., claimed, referring to the For the People voting rights bill.
Though the highly polarized Senate and anxious desire among many Democrats to fulfill their campaign promises point to a dim future for the filibuster, some senators have begun trying to pull the chamber back from the brink.
“It’s something the group of 20 of us, 10 Republicans and 10 Democrats, will discuss tomorrow and decide whether we take this up. Or whether instead, we focus on the minimum wage,” Sen. Mitt Romney, R-Utah, told Politico in his outline of a new centrist coalition trying to cooperate on bills.
Whatever senators conclude is the best path forward regarding the filibuster, the upper chamber has entered a political era reflective of the nation its lawmakers represent: closely divided, hyper-polarized and anxious about its future.
Contributing: Mabinty Quarshie
This article originally appeared on USA TODAY: Filibuster, explained: What it is and how does it work in Congress?