The Filibuster

In this first episode of Why and Why Not, Dr. Gregory Koger joins Brad to look into the history of the US Senate's filibuster. We look at how the rule developed, what it actually means for today's Senate, and how we could move to change it. 

If you'd like to continue the conversation, you can find Brad on twitter here: https://twitter.com/BradleySFallon

If you have an episode suggestion, reach out at podcastwhyandwhynot@gmail.com. 

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Transcript

THE FILIBUSTER

INTRODUCTION OF THE PODCAST

We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

This was said by Thomas Jefferson, founding father and author of the Declaration of Independence. I’m Brad Fallon and after a recent trip to DC where I found this quote etched into the side of the Jefferson Memorial, I felt that it perfectly summed up my reason for making this podcast.

It seems to me that we get sold this idea that the defining characteristics of our government stem from an airtight design by a group of infallible founding fathers. 

And while they should be commended for many of the ideas that they put forth, they were pretty clearly far from a perfect group and there is plenty of reason to question whether they got everything right. I mean, Benjamin Franklin thought he could take “air baths” by walking around his house naked, they thought the answer to the question “what do women want?” was no voting rights and a man in a powdered wig, and they collectively allowed slavery to exist in the United States.

Actually, forget the other stuff, they let slavery exist in the United States and be the foundation of large parts of our economy. If that doesn’t tell you that not everything they did was perfectly reasoned or stands to uphold our values today, then frankly this podcast is not going to be for you. 

But, honestly, so much of what we now consider to be foundational characteristics of our democracy weren’t even set or considered by the founding fathers. And it’s clear that many Americans think there is something lousy about the way our democracy is working. Afterall, Congress currently has an approval rating of 20% and that’s not even an all-time low. So maybe its time to take a page from Jefferson;s book and take a look at making some changes. But to do that, we need to figure out how we got here in the first place.

This is the goal of my show, Why and Why Not? But enough introduction because this first episode centers on the Senate filibuster. And if you’re like me and are fascinated by government structure and legislative procedure, then I’m going to assume that you're not too busy with a booming social life to take a look at this with me.  So - let’s dig in. 

[Music transition here]

COLD OPEN

Congratulations, a year ago today, you went from podcast listener to President of the United States. 

And not only are you the current resident of the White House, but your party also holds slight majorities in both the House and the Senate. 

You beat your opponent in the election by millions of votes. And most attribute your win to your promise to enact your signature policy.

–

And in the year since you took office, this policy has become the focus of your administration.

You and your staff have spent long nights negotiating with stakeholders and members of Congress. You’ve held countless rallies and town halls around the country to build support.

–

Polling on the issue clearly shows that a majority of Americans want this bill to pass, and good news, just yesterday it passed the House of Representatives. 

You weren’t surprised, though disappointed, that it passed on a party-line vote. However, the bill is now headed to the Senate where a clear majority of 55 Senators fully support it. 

Finally, feel that you are going to deliver on this mandate by the American people when [“You’ve got mail.”]. – 

A member of the minority party has just emailed to inform the Senate that she and her most partisan colleagues will be filibustering your bill in any form. And just like that: your signature policy, the vision that a majority of Americans voted for, is dead by filibuster.

[Theme song] 

INTRODUCTION TO THE FILIBUSTER

At the time of this recording, there’s been a lot of talk about the Senate filibuster as President Joe Biden seeks to pass his voting rights agenda despite a one-vote majority in the Senate. This has prompted Biden to support a move away from this senate rule. 

[Clip of Joe Biden filibuster remark]

And this call for reform isn’t unique to Biden or to Democrats for that matter. Here’s Donald Trump as President:

[Clip of Donald Trump on filibuster]

And here’s Obama before him:

[Clip of Obama on the filibuster]

But despite the leaders of both major parties calling for the end of the filibuster because they claim that it blocks any real work from getting done, we’ve been unable to significantly change it.

And while you hear certain politicians calling for an end to the filibuster as it currently stands, you hear others relentlessly defending it.

So to better understand this dynamic, I think we need to get a grasp on exactly what the filibuster is and how we got here.

When most hear the term, they think of long speeches. Just take Mr. Smith Goes to Washington where, in a show of patriotism, Jimmy Stewart’s character gives an impassioned speech on the floor of the Senate until he passes out from exhaustion. But is this what a filibuster is all about?

[Koger clip defining a filibuster] 

That’s Dr. Gregory Koger. The Chair of the Department of Political Science at the University of Miami and author of the book Filibustering: A Political History of Obstruction in the House and Senate. And while that’s very important to understand if real change is going to be made, I’m talking about something a little more specific. The Senate Filibuster, as it stands today, is essentially a requirement for there to be at least 60 votes in favor of having a debate or a vote on a bill itself. So while a bill in the Senate only takes 51 votes to actually pass, it most often takes at least 60 votes to approve the motion to actually hold the vote on the bill itself. So with the filibuster, it takes more votes to have a vote on a bill than it takes to pass the bill that you want to vote on!

Many say that this is an undemocratic system that blocks progress from being made. Books with scary titles like “Kill Switch” or a video from Vox titled “The Weird Rule that Broke American Politics” make their position clear on the filibuster and its impact on government. 

On the other hand, proponents of the rule often make the case that the Senate was designed to be a cooling saucer and the world’s most deliberative body and that the filibuster is an essential component of that design. In an interview with the Federalist Society, Utah Senator Mike Lee claimed that the rule leads to debate and ultimately forces compromise in order to reach that 60 vote threshold. In the mind of supporters, this ensures that, at least most of the time, the minority party has a seat at the table. And that sounds great! But is this how things have actually played out? Let’s take a look at the history of the filibuster to determine whether 1) it was a component of the original design of the Senate and 2) whether it truly helps the senate be deliberative with robust debates and eventual compromise. 

We’ll take a look at that history, right after the break.

HISTORY OF THE FILIBUSTER

The most common origin story of the Senate filibuster puts the blame on Vice President Aaron Burr. The story goes that Aaron Burr delivered his farewell address to the Senate after deciding to leave office at the end of his term following his controversial killing of Alexander Hamilton in a duel. Now, that duel is not important to the broader story here but I have to mention that a sitting Vice President shot and killed a founding father. That’s setting the bar so low that Dick Cheney actually looks alright considering that the lawyer he shot in the face at least survived. 

During his speech, Burr called on the Senate to change their rules which allowed debate on an issue to be ended despite there being Senators who still had something to say. You see, per the Constitution, the Senate is governed by a set of rules created by the senate and for the senate known as, the Senate Rules.  These basically dictate procedure and what senators may or may not do. And when Aaron Burr called for the changes to these rules, the Senate decided to follow suit. And by doing so, they forfeited their ability to make a senator or group of senators stop talking. This, the story goes, is how the Senate filibuster came to be.

But while Hamilton fans love this story, others argue that the blame really can’t fall with Aaron Burr. Here’s Dr. Koger.

[Interview Clip]

But whether or not Aaron Burr was to blame, the Senate filibuster did arise. And the method used was to refuse to end debate in order to prevent a vote from taking place. This is the basic idea of the filibuster used today, but back then Senators had to just keep speaking on the floor in order to delay or prevent a vote.

And we often today think of one Senator going on and on as long as they can or until they faint in dramatic fashion. But in order for a filibuster to be effective in the long-term, what is truly required is a group of filibusterers. This was the case because even though a senator had to be continuously speaking on the floor of the Senate in order to keep the filibuster going, senators could take turns doing the speaking. So since all members needed a chance to eat and rest and use the bathroom, they needed enough filibustering partners to take turns with and keep the obstruction going sustainably. And while this was not necessarily often used, this was the rule of the game. And there was no way for the Senate to actually force these obstructionist Senators to shut up. But as frustration built, this eventually changed. 

Let’s jump to the 1910s. Here’s Dr. Koger to help set the stage:

[SCRIPT 1: 1917 Context]

So given his view of himself as the leader of the party, Woodrow Wilson began setting the agenda and demanding that Democrats in the Senate pass it. But not all Democratic Senators agreed with every proposal that the President sent over. Afterall, these are two separate branches of government and the executive can’t just tell legislators what to do. But after filibustering yet another one of Wilson’s priorities, the President demanded that the Senate create a rule known as cloture. 

Cloture is a vote taken to end debate on a given issue and move towards a final vote. But, unlike a vote on a bill or nomination which only takes a simple majority to pass, a cloture vote has a higher threshold for passage. And Wilson wanted this mechanism in place so that he could end filibusters and move through his agenda with the majority of Democrats. 

But Senate Democrats came back with a counterproposal: 

[Koger Clip] 

So without a way to truly stop the filibuster, the ship subsidy bill died. But Wilson didn't give up on his desire to control his party. And not long after, the President's party filibustered another one of his priorities. 

[Koger Clip]

Now, to me, this piece is so fascinating. Because not only did the cloture come out of a political process due to Democratic infighting but it wasn’t even designed to actually have an impact on the legislative process. But as we’ll see, this rule changed overtime with significant impact. 

But as of 1917, the Senate had a cloture rule that required ⅔ of Senators to vote to end debate and move on to a final vote. As mentioned before, this wasn’t really all that impactful since at least about a third of the Senate was needed anyway to keep a filibuster active. And this was put on display as civil rights for Black Americans became one of the most contentious issues of the day. In order to block civil rights legislation, Southern Senators organized their schedules so that 15 or 20 of them could take turns speaking on the floor to prevent a vote from ever taking place. And even though they were far outnumbered in their opposition to civil rights, they were able to block legislation from passing. 

And in true Twitter troll fashion, this group of racist assholes ruined things for everyone else. 

Overtime, this created public pressure for the cloture vote threshold to be lowered so that southern filibusters could be ended and civil rights could be passed. In fact, news reporting at the time shows that people began directly tying support for civil rights to support for a change to the cloture rule. And this feels so similar to where we are again today with Joe Biden seeking to change the cloture rule in order to pass his voting rights agenda in light of restrictive laws put into place in many states at the behest of Donald Trump. 

So, over decades, more and more Senators went on the record in favor of cloture reform. And even once civil rights legislation passed, this push remained. And ultimately, in the 1970s, after a series of various changes to the rules, cloture ended up being dropped from ⅔ of senators present to ⅗ of the Senate as a whole. Or in other words, 60 votes were now needed to end a filibuster and move on to a vote.

But also in this time, Mike Mansfiled of Montana became the new Senate Majority Leader. And  as Leader, he presided over many time-consuming filibusters. And he quickly realized that this was a completely inefficient way for the Senate to spend its time and that the Senate needed to do things differently. Or as Dr. Koger more eloquently put it - 

– koger clip calling this stupid –

So Mansfield implemented what is known today as the two-track system or the dual track system. And this is an incredibly important piece because this meant that if there were not 60 votes to end debate through cloture, the Senate could just move on to other business without actually ending debate on the issue at hand. So the Senate still can’t vote on whatever was being filibustered, but they don’t have to actively keep the debate going through speeches on the floor. 

But since you are a highly intelligent and may I say particularly attractive audience,  you might be asking “Brad, I get why Senators would want to avoid sitting through long speeches on the floor as a team of filibusterers talked for days to block a vote. But what if there are only 1 or a few Senators filibustering? Couldn’t the Senate just invoke cloture and move on?”

To answer this I have to clarify two things. First, filibustering isn’t always just speeches. If there is a cloture-proof block of Senators, that’s all that is really needed. But if there are fewer than 41 obstructionists, Senators can delay a vote by repeatedly offering amendments to a bill that the Senate would need to vote on before ending debate. And a single Senator could do this.

Which brings us to the other piece that I’ve left out so far: the unanimous consent rule. Here’s Dr. Koger to explain it. 

[Unanimous Consent]

And this is essentially where we are today. Although, this is worsened by how partisan Congress has become. Now, in almost every instance, the minority party will refuse to vote for cloture as a block when it comes to a Majority party’s priority. So unless the Majority party has 60 reliable votes, the minority can stop their agenda from ever taking place without ever actually having to stand on the floor in opposition. They can just silently stop anything from happening without real scrutiny from the American people. 

To visualize this, let’s revisit your presidency from the episode opening. You have the support of 55 Senators, a clear majority. But one member has sent an email to the minority leader informing them that they and a group of others will filibuster the bill to prevent a vote. This is communicated to the Majority Leader who immediately realizes that his party is 5 votes short of the 60 needed to invoke cloture and end the filibuster. So, the cloture vote fails and the actual vote on the bill is prevented. And, using the two-track system, the Senate just moves on with not doing their jobs. 

And the irony is that when Aaron Burr delivered his farewell address to the Senate back in 1805, his intention was to allow for robust debate. But instead, centuries of politicians gradually changed the Senate rules to ultimately skip debate entirely on nearly every bill. So adhering to today’s rules achieves the exact opposite of what an early Senate had intended. And this decades-old tradition gets confused for something that the founding fathers intentionally designed. 

So let’s revisit the two questions that I started out with: First, whether today’s filibuster was a component of the original design of the Senate. As we’ve seen, it absolutely was not and really only dates back decades. 

Second, whether today’s filibuster truly helps the senate be deliberative with robust debates and eventual compromise. Again, we’ve seen that this rule allows debate to be skipped entirely. 

So with these two myths busted, I think we need to evaluate whether today’s system is still better than an alternative or whether it's time for change.

That coming up, after the break.

MOVING FORWARD

Welcome back, before the break we discussed the history of the filibuster and how it impacts the legislative process today. But what would the Senate even look like without it? If you ask proponents of the filibuster, they’ll say that this would be a radical change in government. In 2021, Republican leader Mitch McConnell equated abolishing the filibuster to creating a quote “entirely new system of government”.  

And it’s hard to picture what this would look like. But fortunately, we can actually look at the House of Representatives to get some idea of what this change could look like. Because while the filibuster is primarily associated with the Senate today, the House actually had the filibuster for over a century. And, over a hundred years ago, they got rid of it.  

*Music picks up*

In 1888, Republicans won a slim majority in the House to govern a highly divided country still healing from the wounds of the Civil War. And while Republicans had won a majority in Congress, they didn’t expect to accomplish much of anything. And, you guessed it, the reason for their pessimism was the filibuster.

But then came in Speaker Thomas Brackett Reed.

This guy was larger-than-life. A Republican Civil War veteran, he had risen to the top post in the House but felt that his party’s majority meant almost nothing when the Democratic minority could easily block any initiatives by filibustering. 

But Reed was an institutionalist. And as such, he possessed an unmatched understanding of the House rules. And he understood how he could change the lower chamber to make the Republican majority actually impactful. 

So when the 51st Congress convened, Reed took the radical step to abolish the filibuster and brought upon majority rule. This was a highly controversial decision and it was unclear how the public would react.  But this unprecedented gamble paid off. The House abruptly changed gears from gridlock to sweeping reforms. During the term, Republicans passed the Sherman Antitrust Act, established land-grant colleges for Black students in the South, expanded pensions for Civil War veterans and their families, laid the foundation for the National Parks Service, created the beginnings of the federal immigration system, and granted statehood to the Dakotas, Montana, Washington, and Idaho. 

That’s right, if Reed hadn’t abolished the filibuster we never would have gotten North Dakota. And that’s just not a world I want to live in. 

Today, the idea of a House filibuster has all but disappeared and the House definitely has majority rule. But what can this tell us about how this would play out in the Senate? I mean, there are clear differences between the two chambers. Just look at how their members are elected. While the House is inherently more majoritarian in that the number of representatives a state has is based on population, each state gets 2 Senators regardless of how many people live there. It’s why Texas has the same number of Senators as Wyoming, despite having over 28 million more people. To find out how the chambers compare here, I asked Dr. Koger. 

[Majority Rule in Senate]

Okay, so maybe this won’t work in the Senate exactly as it did in the House. And it’s up for you to decide whether that is a good or a bad thing. I mean the House isn’t exactly the most functional group in America either. But this would result in elections having more immediate consequences which is just not how it seems today. And with growing pressure to do something to change the Senate filibuster, we should take a look at how this could look in practice.

A fairly simple option would be to reduce the cloture vote threshold down from 60 votes to a simple majority of 51 votes, commonly referred to by opponents as the nuclear option. This would ensure that the Majority of the Senate could always end debate and move on to a final vote. This would, however, revoke the minority party’s ability to truly influence what happens in the Senate. This is the way it works in the House and most state legislatures. So given that we have this currently in America, surely supporters of the filibuster don’t think it could be too bad, right?

[Scorched Earth Senate] Scorched Earth at 5:50

Oh uh hmm okay well what exactly would you do? 

[List of Republican policies] List of what he would do at around 9:30

Okay, I’m not trying to be a political hack here but framing your agenda as the scary story you tell Democrats to get them to behave may not be the best way to sell your platform as the ideal direction for the country. That’s like voting for Krampus. 

But... he is right that all of these things would be possible if the filibuster were abolished and Republicans had a majority. And clearly, this is not what Democrats want. Just as Republicans don’t want to see Democratic priorities passed through without any input from the minority party. 

So it’s not surprising that Senators of both parties fear a majority rule Senate when they are in the minority. I mean, it takes a lot of work to become a member of the Senate and no one wants to do that just to be a minority member with little to no impact on the process. That’s rational and I think most people can understand it. 

I should point out that this majority rule scenario is already possible if any party has a 60+ vote majority in the Senate however. So while he’s right about what's possible, he’s completely wrong that this would be a new system of government. 

But I should also note that, as Dr. Koger mentioned earlier in the episode, the structure of the Senate is such that a minority of the country could be represented by a majority of Senators. So without a filibuster, if say, 51 Senators represent states that collectively make up only 35% of the country’s population, there would be majority rule in the Senate provided by a significant minority of Americans. In other words, the 35% would control the government of the remaining 65%. 

And let's look at how this relates to Democrats who are talking the most about abolishing the filibuster. The structure of the Senate gives a competitive advantage to less-populated rural states. And since Republicans dominate in rural areas, the Democrats can expect to be in the minority more times than not. So, for many, today’s progress just isn’t worth giving up minority rights in the future. 

Given this, abolishing the filibuster altogether seems incredibly unlikely. But, fortunately, that’s not the only thing that can be done. President Joe Biden recently called for a reduction in the cloture vote a simple majority for only legislation that relates to voting rights. This follows other changes to cloture in the past decade by both Republicans and Democrats who have reduced the cloture vote for nominations. 

Other proposals include getting rid of the two-track system and requiring that Senators once again actually have to hold the floor in order to filibuster. This would raise the cost of filibustering by requiring Senators to do it in a highly visible and time-consuming way. Personally, I think this would be a great step in the right direction even though it sets the stage for the most tired sort of political theater. 

And of course, there are many other proposals that weaken the stranglehold that the filibuster currently has on the Senate. And each of them come with some political risk. But ultimately, Americans need to decide whether ensuring that elections have consequences would be worth the other issues that could arise.

As you’ve no doubt been able to tell, in my opinion, it is. While none of these potential changes will entirely fix Congress - I believe it would be an important step towards a government that is more responsive to the people. But the point of this podcast isn’t for me to tell you my opinion, it’s to help provide you with the information needed to develop or build on your own . So, what do you think? Let me know by leaving a review and commenting or by tweeting me @bradleysfallon on Twitter.

And that's it for the first episode of Why and Why Not! A special thanks to Dr. Koger who agreed to let me pick his brain for this episode. If you’re interested in learning more, be sure to check out his book Filibustering: A Political History of Obstruction in the House and Senate. You can find citations for this episode in the show notes. If you enjoyed this episode, be sure to let us know by subscribing and leaving us a review which will help us reach more listeners! 

Until next time, thanks.