Five Myths about the Filibuster
`It's not a long-winded speech, and it's not unconstitutional.
Carlos Abarca puts sheets on a cot in the Strom Thurmond Room at the U.S. Capitol on May 23, 2005 for Republican senators prepared to spend all night discussing judicial nominees and the use of a filibuster with Democrats. (Joe Raedle/Getty Images via Washington Post)
The procedural rule requiring 60 votes, in most cases, to end a filibuster — to cut off debate and proceed to a vote on a pending bill — is a defining, frequently maligned feature of the Senate. But while most of us have heard of the filibuster, myths about what it is, and isn’t, abound. Here are five.
MYTH NO. 1
The filibuster is unconstitutional.
Lawyer Thomas Geoghegan, writing for the New York Times in 2010, argued that the current filibuster rules are unconstitutional. As law professor Burt Neuborne put it in a Stanford University law journal, the legislative tactic allows 41 senators to thwart the will of 59 senators, making the minority’s votes “approximately 1.5 times more powerful” than the majority’s, “in flat violation of Article V” and the 17th Amendment’s one-vote-per-senator principle. No less a figure than President Barack Obama described the filibuster as “extra-constitutional,” which suggests that the rule runs counter to our founding document.
But there’s nothing in the Constitution that proscribes a filibuster. Article I, Section 5 says, “Each House may determine the Rules of its Proceedings.” In Common Cause v. Biden (2012), the plaintiffs argued that the Constitution lists only five situations requiring supermajority votes (more than a simple majority) — ratification of a treaty, removal of a member of Congress, conviction of an impeached president, a constitutional amendment and a veto override — and therefore it’s implied that all other votes must be by simple majority. But U.S. District Court Judge Emmet Sullivan found that the Constitution contains no “requirements regarding the proper length of, or method for, the Senate to debate proposed legislation.”
MYTH NO. 2
A filibuster is a long-winded speech.
We often think of a filibuster as one legislator rambling along, alone on the Senate floor, in symbolic defiance of the majority. In the Frank Capra classic “Mr. Smith Goes to Washington,” Jimmy Stewart plays freshman senator Jefferson Smith, who is asked repeatedly by his colleagues to yield the floor and insists, “No, sir, I will not yield!” In 1957, Sen. Strom Thurmond (S.C.), then a segregationist Democrat, later a Republican, spoke for more than 24 hours in opposition to the Civil Rights Act of 1957, which ultimately became law.
But such speeches are often aimed at dramatizing the stakes more than blocking passage of a law. In 2010, Sen. Bernie Sanders (I-Vt.) famously held the floor for more than eight hours in opposition to a tax cut deal struck between Senate Republicans and Obama — but it wasn’t technically a filibuster, since his marathon didn’t actually stall a vote.
A speech isn’t necessary to filibuster. When the 100-member Senate faces a cloture vote to end debate, if 41 or more senators decide to vote no, they can deny the necessary 60 votes. There are a few exceptions, such as budget reconciliation (today, an oft-misused loophole), a process that permits legislation on budgetary matters to proceed with time-limited debate, without the possibility of a filibuster — the process used by Republicans in 2017 to pass a tax cut over Democratic opposition.
MYTH NO. 3
Ending the filibuster would end gridlock.
Making her case against the filibuster in 2017, the New Yorker’s Amy Davidson Sorkin argued that a 60-vote requirement “led to gridlock, not to governance. Instead of pushing Senators to compromise, it protected them from the consequences of their rhetoric and their extremism.” President Trump agrees: During the 2017 congressional debate on the fate of Obamacare, he tweeted, “Get rid of Filibuster Rule!”
But leaving most questions to a simple majority vote would render the Senate much like the House of Representatives, with tightly controlled debate time and restrictions on amending legislation. Once the majority no longer needed to negotiate with the minority to pass bills, compromise would become more elusive, not less, unless one party controlled both houses and the White House.
And even when bills pass in the Senate, opportunities for gridlock remain. The filibuster played no role, for instance, in the partisan gridlock that killed the “Gang of Eight” immigration bill in 2013. A bipartisan majority passed it in the Senate, but the Republican speaker, John Boehner, refused to take it up in the House.
MYTH NO. 4
The filibuster came about by accident.
Last month, New York magazine’s Jonathan Chait wrote that the filibuster “evolved out of a weird historical glitch.” It “arose largely as a historical accident,” wrote New York Times columnist David Leonhardt in February. He was referring to an oft-cited theory of political scientist Sarah Binder, who traced the origin to Vice President Aaron Burr’s 1805 recommendation to, in her words, “Get rid of the previous question motion,” as part of his attempt to streamline Senate rules. Today, we understand such a motion on the floor of a legislative body — the House, let’s say — as requiring, if adopted by simple majority, an end to debate and triggering a vote on the pending matter. So when the Senate, in 1806, followed Burr’s suggestion, it presumably left no way to end debate without the concurrence of all senators.
It’s a stretch to say this accidentally created the filibuster, particularly when the Senate has hung onto that “accident” for more than two centuries. And there’s evidence that from its earliest days, the Senate simply had no tradition of cutting off debate until senators were ready to vote: “The design of the Virginians and of the South Carolina gentlemen was to talk away the time, so that we could not get the bill passed,” Sen. William Maclay (Pa.) recalled in 1789, describing a de facto filibuster during the first Congress.
A 1962 Senate report based on the work of Harvard University professor Joseph Cooper concluded that the previous question rule “was not in practice used as a cloture mechanism.” Until the adoption of the cloture rule in 1917, there was no way to end debate until all senators were prepared to vote.
MYTH NO. 5
The 'nuclear option' changed Senate rules.
The Democrats “voted along strict party lines to change the rules of the Senate, deploying what had become known in Washington as ‘the nuclear option,’ ” the Atlantic’s Russell Berman wrote in 2017 to explain how a 2013 tweak had eased the path for Trump nominees. Last month, Politico’s Burgess Everett reported on the “third time the ‘nuclear option’ — changing Senate rules by a simple majority — has been triggered in just six years.”
It’s true that in 2013, then-Senate Majority Leader Harry Reid (D-Nev.) used a maneuver dubbed the “nuclear option” to reduce the number of votes needed to invoke cloture and end debate on nominees, other than for the Supreme Court, from 60 to a simple majority. In 2017, Senate Majority Leader Mitch McConnell (R-Ky.) did the same for Supreme Court nominations. And in April, McConnell used the gambit to shorten the debate permitted after cloture on most executive-branch nominees and federal district court nominees from 30 hours to two. But no formal Senate ruleswere rewritten. The rule in question, Rule 22, still states that the votes of “three-fifths of the Senators duly chosen and sworn” are required to invoke cloture and end debate.
What Reid and McConnell did in each instance amounted to parliamentary sleight of hand: They raised a point of order on the floor deliberately misstating the rule, leading to the presiding officer denying that point of order and the Senate, by simple majority, overturning the presiding officer’s ruling on appeal, creating a new precedent reinterpreting the application of the rule for practical purposes — but not changing any words in the rule book — which, under the Senate’s byzantine procedures, has the same effect.
Richard A. Arenberg is a Visiting Professor of the Practice of Political Science and a Senior Fellow at the Watson Institute for International and Public Affairs at Brown University. He worked for Sens. Paul Tsongas (D-MA), Carl Levin (D-MI), and Majority Leader George Mitchell (D-ME) for 34 years. He served on the Senate Iran-Contra Committee in 1987. Arenberg is the author of Benjamin Franklin Award winning "Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress." He was co-author of the award-winning "Defending the Filibuster: Soul of the Senate" named “Book of the Year in Political Science” by Foreword Reviews in 2012. A 2nd edition was published in 2014. The U.S. Senate Historical Office published “Richard A. Arenberg: Oral History Interviews” in 2011. He serves on the Board of Directors of Social Security Works and the Social Security Education Fund. He is an affiliate at the Taubman Center for American Politics & Policy. His work has appeared in The New York Times, The Washington Post, the Providence Journal, and The Boston Globe. He is a Contributor at Newsmax and The Hill. Follow him on Twitter @richarenberg.