Use of the filibuster by Senate minorities to prevent passage of popular legislation has exploded in recent years, going from a last-ditch option used about once a year to a routine tactic used about twice a week. As a result, popular legislation is stymied, the counter-majoritarian character of the Senate is worsened, and public opinion about Congress has dropped to unprecedented low levels. Although the Senate passed a package of rules intended to reform the filibuster, the failure to require an actual, talking filibuster means that little will change.

In the beginning days of the Senate there was no filibuster, but 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.

From that time until the 91st Congress of 1969-1970, filibusters were rarely used. The first filibuster did not occur until 1837, and it was not until the 65th Congress in 1917 that the Senate found it necessary to adopt a rule allowing a supermajority of 2/3 to end a filibuster on a “cloture” vote. For the 54 years through 1970, the Senate conducted only 49 cloture votes, an average of 0.9 per year.

In the 1970s, however, the Senate changed its rules in ways that had the unintended consequence of fueling an increase in filibusters by no longer requiring senators to physically hold the floor via marathon speeches (also called a silent filibuster) and reducing the supermajority needed to invoke cloture to 3/5. As a result, from 1971 to 1994, the Senate held 342 cloture votes, for an average of 14.25 per year—nearly 16 times the average of the previous 50 years.

Growing partisan polarization has contributed to the sharp increase in filibusters starting with the elections of 1994. From 1994 to 2005, the Senate held 325 cloture votes or 27 per year—almost double the previous period’s average. And since the off-year elections of 2006 put a Democratic majority in power in the Senate, the Republican minority has used the filibuster simply as a matter of course. Over the past three sessions of Congress, there were 276 cloture votes, or 46 per year. Given a typical Senate calendar of about 140 days in session per year, that is about 2 cloture votes every week, which has brought the Senate to a standstill on virtually all controversial legislation, from tax hikes on the wealthy to limits on greenhouse gas emissions.

Last week, despite the apparent support of 51 Democratic Senators for a package of reforms that would have eliminated the silent filibusters allowed since the 1970s or required the minority to bear the burden of mustering 40 votes to sustain a filibuster, Majority Leader Harry Reid (D-Nevada) made a more limited deal with Minority Leader Mitch McConnell (R-Kentucky). Under the new rule, filibusters can be used only when the Senate begins debating a bill and when it writes compromise legislation with the House, and the amount of debate allowed after the Senate has voted for cloture will be limited.

Liberal and progressive critics were disappointed, especially with the retention of the silent filibuster.

“This country faces major crises in terms of the economy and unemployment, the deficit, global warming, health care, campaign finance reform, education and a crumbling infrastructure,” said Senator Bernie Sanders (I-Vermont), who voted against the new rules. In my view, none of these problems will be effectively addressed so long as one senator can demand 60 votes to pass legislation. The rule changes adopted today...are not enough….Most Americans grew up believing that in America the majority rules.  That is not the case in the Senate.”

-Matt Bewig

To Learn More:

What’s a Filibuster Look Like? Not Jimmy Stewart (by Alan Fram, Associated Press)

Progressives Trash Senate's Failure to Get Meaningful Filibuster Reform (by Jon Queally, Common Dreams)

Current Congress Has Passed Fewer Bills than any Since at Least the 1940s (by Matt Bewig, AllGov)

The Case for Criminalizing Filibusters (by Noel Brinkerhoff, AllGov)