After weeks of wrangling, Senate party leaders Chuck Schumer and Mitch McConnell are close to a power sharing agreement for the 50-50 Senate that retains the legislative filibuster requiring 60 votes for the passage of most legislation. Here are five facts on the history and use of the filibuster.
1. The filibuster is not mentioned in the U.S. Constitution.
The filibuster is a legislative tool that allows a single U.S. senator to hold the Senate floor in order to slow or block a vote on a bill, and under current Senate rules, it can be “broken” only by a vote of 60 or more senators.
The filibuster evolved almost by accident – a strategy born from the absence of a rule. According to the website AllGov, “an obscure rule change pushed by Vice President Aaron Burr in 1805 and adopted in 1806 unintentionally created the possibility that a single Senator could stop passage of legislation by refusing to yield the floor and preventing unanimous consent to proceed to a vote.” The first time the filibuster was used was in 1837.
2. In 2017, a bipartisan group of 61 senators wrote a letter to Leaders Schumer and McConnell asking them to preserve the filibuster.
Specifically, the letter asked Schumer and McConnell “to preserve the ability of members to engage in extended debate when bills are on the Senate floor.” Most of the 61 signatories—which included 28 Republicans, 32 Democrats and one independent— remain in the U.S. Senate today.
3. One of the most famous filibusters in U.S. history was fictional.
The 1939 film Mr. Smith goes to Washington stars Jimmy Stewart who launches a one-man 25-hour filibuster. Around the same time, Sen. Huey P. Long grew famous for filibustering bills with which he disagreed. During Long’s filibusters, he gave extensive monologues about out-of-scope discussions like oyster recipes and personal stories, often reading from books, just to buy time and draw out the debate.
However, this famous “standing filibuster” has, in recent years, been replaced by the much more common “silent filibuster.” According to the Congressional Institute, this occurs when individual senators place a hold “on an item of business. A Senator does this by notifying their party leader that they intend to object to a unanimous consent request, and the party leader typically will prevent the consideration of the measure. Essentially, a hold is a threat to object to a unanimous consent request that prevents a bill from being called up for consideration. It is a silent filibuster when the Majority Leader is not convinced he can get 60 votes to invoke cloture on a bill should a Senator follow through on his or her intention to object, forcing the Senate to consider the legislation through regular order.”
4. The rules governing the filibuster have been changed several times.
Cloture, adopted as Rule 22 in 1917, required a two-thirds majority vote (67 votes) to break a filibuster. In 1974, the Senate dropped the cloture vote threshold to 60. In November 2013, Senate Democrats led by Harry Reid used the “nuclear option” to eliminate the 60-vote rule and implement a simple majority rule of 51 votes on executive branch nominations and federal judicial appointments by President Barack Obama. Then, in April 2017, Senate Majority Leader Mitch McConnell eliminated the 60-vote rule for Supreme Court nominations, which ended debate on the nomination of Neil Gorsuch and allowed him to be confirmed with only 54 votes. Today, the filibuster cannot be utilized for any nominations or appointments, but can still be utilized for most legislation.
5. The use of the filibuster has skyrocketed in recent years.
According to Senate.gov, from 1917 to 1970, the Senate voted 49 times in total to end filibusters. Since 2010, it has taken an average of more than 80 votes per year to break filibusters. From January 3, 2019 through January 3, 2021, 328 cloture motions were filed. This dramatic increase in cloture motions might be due to the 1970 “two-track” procedure implemented by the Senate, which prevents filibusters from disrupting all other Senate responsibilities.