Origins of the Filibuster
The filibuster was never an intentional design element of the US Senate. It came about accidentally due to a rule change implemented in 1806. In that year, the Senate changed its rules to do away with the “motion on the previous question.” In standard parliamentary procedure, the motion of the previous question is a vote used to end debate on a bill. To pass a bill, a legislative body would normally first vote to end debate on a bill, and then vote on passage of the bill. By doing away with the motion on the previous question, Senators were then able to have an unlimited amount of time to debate a bill. Any Senator may hold the floor and speak as long as they like.
It took some time before a Senator found a creative use of their privilege of unlimited debate. In 1841, a group of Senators successfully held the floor of the Senate until the end of the session to prevent a vote on establishing a national bank (a vote they would have otherwise lost.). This was the first filibuster. After that, filibustering, or holding the floor to prevent passage of a bill, became more frequent.
Rule 22: The Cloture Vote
In 1917, the Senate decided that it needed a way to end filibusters and it passed Rule 22. Rule 22 would allow a “cloture” vote to end a filibuster. Originally, two-thirds of the Senators present would be required for cloture. This meant that Senators who supported the filibuster, or wanted to kill the bill, would have to remain present in the chambers, in case a cloture vote was called. This led to situations where Senators would stay all night in the chambers, and sometimes sleep on cots placed in the lobby. This type of filibuster was dramatically depicted in the film, Mr. Smith Goes to Washington (1939).
Many often wonder why Senators are not required to filibuster like that anymore. David E. RePass, Emeritus Professor of Political Science at the University of Connecticut, recently argued in a New York Times editorial (March 2, 2009) that Senate Majority Leader Harry Reid (D-NV) should force Republicans to actually filibuster if they try to obstruct a bill. He writes, “The phantom filibuster could be done away with overnight by the Senate majority leader, Harry Reid. All he needs to do is call the minority’s bluff by bringing a challenged measure to the floor and letting the debate begin.” What Dr. RePass, and many others, fails to understand is that the reason Senators do not filibuster anymore has to do with a rule change that took place in 1975.
Changing Rule 22
In 1975, the Senate changed the cloture requirement to three-fifths of the entire body. (This would actually be the third time that Rule 22 was amended.) Since cloture would now require a proportion of the entire body, rather than of those present, it is now incumbent upon the majority to get the required votes to pass a bill, regardless of whether or not someone is holding the floor of the Senate or not. So, if the majority does not have 60 votes (3/5 of 100), it cannot pass a bill. If Sen. Reid did as Dr. RePass suggests and started debate on a bill, there would still be no need for Republicans to hold the floor indefinitely because Reid would still need 60 votes to end the debate. In order to have a more traditional filibuster, Rule 22 would again need to be amended to allow cloture only for a proportion of the senators present, rather than a proportion of the entire body.
Resources:
Binder, Sarah A. and Steven S. Smith. 1997. Politics or Principle? Filibustering in the United States Senate. Washington D.C.: Brookings Institution Press.
Napp Nazworth - I am a political scientist who specializes in American politics, religion and politics, political parties, interest groups, social ...
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