Many Americans have a romantic view of the filibuster based on the 1939 movie Mr. Smith Goes to Washington, but it is important to learn the real history of the filibuster. The filibuster was not in the original design of the US Senate and the Constitution. In fact, the Founders were, with just a few exceptions (override of a veto, passage of treaties, expel members of Congress, propose amendments to Constitution, and conviction during impeachment), opposed to the creation of supermajorities. In Federalist #58, James Madison argued that, "in all cases when justice or the general good might require new laws to be passed or active measures to be pursued, the fundamental principle of free government would be reversed if quorums of more than a majority were required. It would be no longer the majority would rule: the power would be transferred to the minority." Article 1, Section 5 of the US Constitution states that a majority of each House constitutes a quorum to do business.
The filibuster came about largely due to a mistake or oversight according to Professor Sarah Binder (George Washington University). Prior to 1806 both the House and the Senate used a simple majority vote, via a motion to call or move the previous question, to end debate. Then Vice-President Aaron Burr believing that the Senate should not be burdened by too many procedural rules moved to eliminate several procedures, including the motion to move the previous question. The rules were eliminated and this paved the way for unlimited debate or the filibuster in which the majority lacked the ability to prevent. The filibuster was first used in 1837 and there were very few uses of it prior to the Civil War. Yet, the Senate tried but failed to limit the filibuster in the 1840s. After the Civil War, the filibuster was not typically used. Woodrow Wilson wanted to arm US merchant ships to protect them from German submarines during WWI. In 1917 this was defeated by a Republican filibuster in the Senate. Wilson and the Democrats went on a public relations campaign and framed the issue as a matter of national security. As a result, Rule 22 was passed which allowed the Senate to invoke cloture or to end a filibuster with a two-thirds vote of the Senate. Rule 22 was used successfully in 1919 to end the filibuster on the vote for the Treaty of Versailles. It should be noted that achieving 67 votes in the Senate is not easily done.
From 1917 through 1965, the filibuster became a tool for segregationists to oppose civil rights legislation. It became known as the Jim Crow filibuster. There was an implicit agreement with the segregationist south that the filibuster would only be used on issues involving civil rights. Majority rule worked on all issues except civil rights legislation. Thus, civil rights legislation required 67 votes to pass, almost all others needed a simple majority. To put it another way, “in exchange for preserving one party segregation rule in the south, America could enjoy a functional democracy everywhere else.” (David Litt). During this period, the filibuster was rarely used against non-civil rights legislation. It was the civil rights movement of the 50s and 60s that eventually ended the Jim Crow filibuster. The 1964 Civil Rights Act and the 1965 Voting Rights Act faced extensive filibusters, but eventually the most important civil rights laws of the 20th century were passed. But, this opened the door for the filibuster to now be used on all issues, simply as a tool for the minority to oppose and obstruct the majority on any issue up for debate.
There were a few procedural changes in the 70s such as allowing more than one bill to be discussed on the Senate floor at the same time (thus, a filibuster on one bill did not prevent discussion on the other bill). This effectively ended the “talking” filibuster. Today, the "silent" filibuster rules with any member of the Senate simply stating or notifying the majority leader that there are 41 votes opposed to the legislation. The Senator need not even speak on the floor. The Senate reduced the necessary votes for cloture from two-thirds to three-fifths or 60 votes. With partisanship increasing in the 1990s, the use of the filibuster increased dramatically. In 2013, the rules were changed to prevent a filibuster of Cabinet appointments and lower court nominations. Other exceptions to the use of the filibuster were carved out creating odd situations such as the fact that Obamacare needed 60 votes to pass, but only 50 to defund. The vast majority of legislation in the Senate still faces a filibuster and 60 votes to pass and it was Mitch McConnell who weaponized the filibuster during the Obama administration using it to block virtually every piece of legislation.
The filibuster can be viewed in different ways. Opponents see it as an obstacle to majority rule or the “tyranny of the minority” as some have called it, especially in an era of strong partisanship. In other words, it is viewed as undemocratic. It gives the minority a veto over the majority, something the Founders never intended. Supporters believe that it empowers the minority which would otherwise have little say about legislation in the Senate and forces compromise/bipartisanship.
See the following scholars for more information: Sarah Binder (GWU and Brookings), David Litt, David Brady, Matthew McCubbins, Gregory Wawro, and Eric Schickler
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