Last April, in his first State of the Union address to the nation, President Biden made the case for sweeping reforms. His speech called for an array of initiatives, including universal preschool, free community college, expanded health care, paid family and medical leave, and childcare subsidies. These reforms are widely supported across the country, and largely enjoy majority support in both the House and Senate. Despite this fact, however, it is entirely possible that Democrats will not be able to accomplish their legislative agenda. The Senate filibuster — a rule that allows a minority of senators to block nearly any piece of legislation — often renders Congress unable to act on crucial issues, even if they enjoy majority support from both the House and Senate.
Contrary to persistent myths, the filibuster was not part of the founding fathers’ vision for the Senate. The filibuster was actually created by accident; it can be more accurately described as an unanticipated consequence of a hasty attempt to edit the Senate rulebook for clarity. In 1789, the House and Senate rulebooks both included the “previous question” motion, which today empowers a simple majority to cut off debate. In 1805, Aaron Burr, presiding over the Senate, remarked that the Senate’s rulebook was repetitive and should be revised. He singled out the “previous question” motion, which in 1805 was not used by a simple majority in either chamber to cut off debate, as it is today. As a result, in 1806, without much thought, the Senate dropped this motion from its rulebook.
Without the “previous question” motion, a simple majority of senators could no longer bring a debate to end. As a result, a minority of senators now had the ability to hold the floor indefinitely, thus preventing a vote on a bill. While not explicitly designed to allow the former Confederacy to derail attempts at racial progress, the filibuster would nonetheless become among one of their most effective strategies. Once established, the southern segregationist Democrats — a well-organized minority faction — took full advantage of the filibuster to obstruct the legislative process. And the issue on which they were most unified and most determined to sabotage with unparalleled tenacity, was civil rights.
The first filibuster occurred in 1837, beginning a centuries-long assault on racial progress. To name a few instances: In the pre-Civil War era, filibusters were used against the admission of anti-slavery states. Later on, during the Reconstruction and post Reconstruction era, filibusters were used against civil rights bills, deployment of federal troops in southern states, and repayment of income taxes from the Civil War. In the early 1890s, the filibuster was used to kill a last-ditch Republican effort to save the political rights of southern blacks. From the 1920s on, nearly 200 anti-lynching measures considered by Congress were filibusterd, and not one became law.
For decades, groups of senators tried to both reform and end the filibuster, but it wasn’t until 1917 that they made any progress. At the outset of World War I, several senators successfully filibustered President Wilson’s proposal to arm merchant ships. Frustrated, Wilson responded by demanding that the Senate create a cloture rule, a procedure for ending a debate and thereby overcoming a filibuster. He famously stated, “The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action… A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.”
Taking advantage of the war, Wilson framed cloture as a matter of national security and used his spotlight to pressure senators into reform. A bipartisan committee was eventually formed to negotiate the form of the rule. While many senators favored eliminating the filibuster altogether, they eventually settled for a compromise: if two-thirds of the Senate came together, a speaker could be cut off and a filibuster broken. (This number would be reduced to three-fifths in 1975.)
The 1917 creation of the modern filibuster, however, would prove insufficient in preventing the southern segregationist Democrats from blocking racial progress. To ensure that civil rights bills were never voted on, southern segregationist senators did everything they could to obstruct and delay proceedings, with the filibuster being a preferred tactic. While a handful of senators could no longer derail the entire legislative process, a faction of senators — still smaller than a majority — could still kill any bill they desired.
Consequently, pro civil rights senators were left with two options: either abandon civil rights bills or abandon the rest of their legislative priorities. They chose the former, in no small part because northern senators had a much smaller proportion of African American constituents. As a result, for nearly a half century after the Senate’s reforms, not a single substantial civil rights bill became law.
Because of the filibuster and a handful of senators, the former Confederacy was essentially allowed to continue its horrific abuses against African Americans for a century after the Civil War’s end.
The effects of the Senate’s 1805 mistake have haunted the country for centuries, wreaking havoc on the American people and democracy. Today, the filibuster continues to obstruct progress on crucial legislative agendas — a fitting, and sinister, nod to its Jim Crow legacy. If we are to repair our democracy, allow Congress to become a functional and representative body again, enact justice for all, and bring America into the 21st century, we can no longer ignore the issue of the filibuster.