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Elizabeth Warren’s historically sound case against the filibuster

The Senate rule has long been used as a weapon against civil rights and other progressive legislation.

Sen. Elizabeth Warren (D-Mass.) affirmed her opposition to the filibuster at the National Action Network's annual convention in New York. (Justin Lane/EPA-EFE/Shutterstock)

Presidential candidate Sen. Elizabeth Warren (D-Mass.) this month called for a fundamental change to the rules of the Senate: She wants to eliminate the filibuster, the procedure that allows a minority of the chamber to tie up legislation by continuing debate indefinitely. The minority can do so because, under filibuster rules, 60 senators must vote to end debate on legislation.

“When Democrats have the White House again, if Mitch McConnell tries to do what he did to President Obama and puts small-minded partisanship ahead of solving the massive problems facing this country, then we should get rid of the filibuster,” Warren said in New York.

Many Democrats oppose this change or at least have significant qualms. “Having just lived through being in the minority and how destructive the 51-vote threshold has been for Supreme Court justices, I just want to think long and hard about it,” Sen. Kirsten Gillibrand (N.Y.) has said. And Sen. Cory Booker (N.J.) has argued that “we should not be doing anything to mess with the strength of the filibuster” — although he recently opened the door to changing his mind. Sen. Bernie Sanders (I-Vt.) is a skeptic, while South Bend, Ind., Mayor Pete Buttigieg sides with Warren.

Protectors of congressional “norms” will oppose Warren’s proposal, but the truth is that the filibuster — a 19th-century invention unmentioned in the Constitution — is an anti-majoritarian tool within an institution that already favors the minority.

While both parties have benefited from the maneuver over the course of U.S. history — Democrats used it in 2005 to check Republicans on Social Security privatization, for instance — by and large the measure has been more harmful to progressives who seek large-scale policy innovations. Today, many Democratic policies command majority support, but given Republican strength in rural areas, plus structural features of Congress that give those regions outsize power, Republicans are able to keep those policies at bay.

Toxic levels of polarization and gridlock mean there is a strong case to be made that it’s time for the filibuster to go. And as Warren suggested in her speech this month, nothing demonstrates its reactionary bias more than its long, ugly history as a tool to block progress on racial justice. Democrats today who think of the filibuster as a neutral parliamentary rule should think harder about that history.

In the 1920s and ‘30s, a conservative coalition of Southern Democrats and Republicans depended on the filibuster to stop anti-lynching bills, and they continued to use it to slow progress on civil rights. Warren was spot on when she observed this month that the filibuster had led to “an entire century of obstruction because a small group of racists stopped the entire nation from doing what was right.” The policies being obstructed have changed, but the structural problem remains the same.

The filibuster was already doomed before the 'nuclear option' vote

The filibuster is not inscribed into the Constitution: It emerged as a tradition in the early years of Congress. Senators could keep talking to prevent voting on a bill, until colleagues agreed to drop the matter. Whereas the House adopted rules allowing a majority to close off debate, the Senate did not. And although the Senate did uphold in that era the idea that a vote could not occur until all senators chose to stop debating, in truth the filibuster was not used very often even into the early decades of the 20th century. Most bills were decided based on a majority vote.

At first, senators who wanted to forestall a vote had to hold the floor with nonstop speeches. It took until 1917 for the Senate to adopt a “cloture” rule: According to Rule 22, passed that year, two-thirds of the Senate “present and voting” could bring a filibuster to an end and allow for a vote on legislation.

Filibusters could still be effective, though, since a two-thirds vote remained hard to obtain. Older Americans will remember the heroic filibuster portrayed in the film “Mr. Smith Goes to Washington” (1939), mounted to block a corrupt appropriations bill. But it was more commonly known in Washington as the central tool of those Democrats and Republicans on Capitol Hill who wanted to block civil rights. As support for anti-discrimination and desegregation laws grew among northern legislators, Southerners could take comfort that they had the filibuster in their back pocket. In 1938, Sen. Allen Ellender (D-La.) stopped anti-lynching legislation by mounting a six-week filibuster.

Filibusters were abhorred by pro-civil-rights liberals. Writing in the New Republic, Sen. Paul Douglas (D-Ill.) observed that the filibuster might seem to be “a barren and arid matter of parliamentary procedure,” yet on its existence turned “the whole question as to whether Congress will ever be able to pass civil rights legislation.” As a freshman senator, Hubert Humphrey (D-Minn.), who had angered Southerners during the 1948 Democratic National Convention by calling on the party to “walk forthrightly into the bright sunshine of human rights,” called the filibuster “undemocratic” and “evil.”

Faced with the possibility of civil rights legislation to end segregation and employment discrimination in 1949, the conservative coalition raised the threshold needed to achieve cloture from two-thirds of the Senate present and voting to two thirds of the entire chamber. Liberals walked away defeated.

In 1951, the NAACP placed filibuster reform as high on its list of priorities as fighting employment discrimination. (There was a Catch-22 lurking in the proposals: Because the Senate required two-thirds support to change the rules, in effect Southerners could filibuster reform.)

In 1957, Sen. Strom Thurmond conducted the longest-ever filibuster, 24 hours and 18 minutes, against a watered-down civil rights bill. It eventually passed under Senate Majority Leader Lyndon Johnson’s direction, but the filibuster gave Southerners enough leverage to pressure Johnson into abandoning vital elements of the legislation, such as strong enforcement mechanisms for voting rights. It was for reasons like these that, in 1956, the journalist William White called the Senate the “South’s unending revenge upon the North for Gettysburg.”

Unable to eliminate filibusters, liberal Democrats focused on organizing and mobilizing. To defeat the conservative coalition, in 1964, they used all of the resources at their disposal to round up enough votes to end the filibuster against the Civil Rights Act of 1964. “Cloture at Last!” the Leadership Conference on Civil Rights wrote to its members.

Filibuster reform remained a rallying cry for liberal Democrats throughout the 1960s and early 1970s, with Sen. Walter Mondale (D-Minn.) among the loudest voices calling for change. Filibusters, he said, had been “used repeatedly by a small group of senators as a method for stopping action and avoiding compromise on measures which have been carefully considered and which were favored by . . . an overwhelming majority of the people of this Nation” — an observation that remains apt. In 1975, the Senate agreed on a compromise, lowering the proportion needed to achieve cloture from two-thirds to three-fifths (67 to 60) — “virtually no change,” as the New York Times put it.

Despite that modification, the use of filibusters exploded after 1975, a trend that has continued to this day. The adoption of a “two-track system” — senators were allowed to work on other legislation while a filibuster took place — decreased the disincentives to employ this tool. Senators took to simply announcing a filibuster, no longer going through the ceremony of holding the floor with long windy speeches. Both Democrats and Republicans accepted filibusters as a routine mechanism to use against all legislation, major or minor. Outside budget reconciliation measures, excluded from filibusters under rules set in 1974, senators simply came to accept the idea that 60 votes were needed to pass legislation.

Why it took a century to pass an anti-lynching law

In recent years, there have been changes, which have often been criticized, wrongheadedly, as attacks on long-standing Senate tradition. In particular, both parties have become frustrated with the way presidential nominees have become tied up. Senate Majority Leader Harry M. Reid (D-Nev.) was the first to move, in 2013: Democrats, frustrated with Republicans’ filibustering of so many of President Barack Obama’s appointments, changed the rules to allow for a majority vote on executive branch nominations and federal judicial appointments (other than to the Supreme Court). Sen. McConnell (R-Ky.) followed by invoking the “nuclear option” in 2017 to get Judge Neil M. Gorsuch onto the Supreme Court with a majority vote. (In each case, Senate leaders allowed for a majority to vote on the rules changes: no more filibustering the filibuster.)

Now, Warren has brought bolder, broader filibuster change back to the center of political debate — where it belongs.

The idea of eliminating the filibuster is frightening for some Democrats, because it would grant their opponents immense power should Republicans obtain united government. But in the long-term, it could be extremely beneficial to the country, and for the progressive agenda, to have a more efficient upper chamber. The filibuster is not a neutral “norm” that automatically deserves to be preserved. Rather, on balance, it has been a reactionary tool in American politics — as its use as a ruthlessly effective weapon against civil rights makes clear.