Why does it take, in practice, 60 votes for a bill to pass in the Senate? Why doesn't it seem like anyone is up there talking for days anymore? And why do we even have it in the first place?
Today is all about the filibuster; from its benign origins to its use and misuse, the arguments for and against it, and what it would take to eliminate it entirely. Our guest is Molly Reynolds from the Brookings Institution.
To learn about the tumultuous back and forth between the federal and state government in Little Rock, here's our episode on Federalism.
And here is the full, 88-page transcript of Strom Thurmond's day-long filibuster.
Transcript
Nick Capodice: Um. How long? How long do you think you could do it if you had to do it?
Hannah McCarthy: Well, if I were super, super dehydrated and had, like, a million blow pops. Mhm. Ten hours. Because I've gone three hours straight talking at conferences and stuff. Right.
Nick Capodice: Yeah. So what would you talk about if you had to just fill those hours?
Hannah McCarthy: Oh, I have so many monologues and poems memorized. [00:00:30] I would just I would just go through them all and then I would do that, uh, pilot trick where, like I would say, uh, in between.
Nick Capodice: I think that after I got through Kubla Khan and The Cremation of Sam McGee, I think it'd be kind of fun. Just sort of speak on any subject whatsoever. Just talking and talking in one long.
Speaker3: Unbroken sentence, moving from topic to topic so that no one had a chance to [00:01:00] interrupt. It was really quite hypnotic.
Speaker4: Would you like them in a house? Would you like them with a mouse?
Speaker5: I am not on China, G.
Speaker4: I do not like them in a house. I do not like them with a mouse.
Speaker5: China. China. China. China. China. Five, China.
Speaker6: I would go for another 12 hours to try to break Strom Thurmond's record. But I've discovered that there are some limits to filibustering. And I'm going to have to go take care of one of those in a few minutes here.
Nick Capodice: You're [00:01:30] listening to civics 101 Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we are talking about a uniquely American institution, the filibuster. What it is, its history, how it has changed over the last 200 years, and finally, arguments for and against it. And I gotta get it out of the way first. Hannah, we've got a little content warning today.
Hannah McCarthy: For the filibuster.
Nick Capodice: For the filibuster. This episode acknowledges the existence of urine and the need of all humans to get it out of their [00:02:00] system, sometimes using a bucket.
Speaker7: I don't think you need that.
Hannah McCarthy: All right, so before we get into the history, let's remind everyone what the filibuster is in the modern era. How does it work?
Nick Capodice: All right. We'll get the basic part out of the way before we dive into the tangles. And there are so many little tangles. So real quickly for a bill to pass in the House or the Senate, it needs a majority.
Hannah McCarthy: Which in the Senate is 51 votes.
Nick Capodice: Yes. But [00:02:30] in that time, between a bill coming to the floor for a vote in the Senate and the vote itself, there is a period of deliberation and debate, and that liminal space is where the filibuster lives.
Molly Reynolds: The idea here is that the Senate lacks a way to cut off debate, sort of stop talking about something and move on to a final passage vote. Um, with a simple majority of senators, there's no way under the [00:03:00] Senate's rules for that to happen. There's also when someone is speaking on the floor of the Senate. No way to get them to stop talking.
Nick Capodice: This is Molly Reynolds.
Molly Reynolds: My name is Molly Reynolds. I am the vice president and director of the governance studies program at the Brookings Institution in Washington, D.C..
Nick Capodice: So a rule was created in 1917. I'll get more into it later. This rule, though, is called cloture. If a certain number of senators agree, debate is ended, that Senator stops [00:03:30] talking and the bill comes to the floor for a vote.
Molly Reynolds: So two thirds is the original threshold in 1917. The current version of the rule, with 3/5 of the Senate chosen sworn. So it's 3/5 of the Senate's membership, which actually kind of important because it means that if you are in the majority and you're trying to invoke cloture, you actually need all 60 of your votes there. But if you're in the minority, there's not [00:04:00] the same pressure to sort of show up and vote no every time you're trying to, um, to deny, deny a cloture motion.
Hannah McCarthy: Wait, so the minority, the side doing the filibuster, they don't all need to be there. But the very hard to achieve supermajority wanting to stop the filibuster does.
Nick Capodice: Yes. And this has led to a lot of theatrics over the years. You know that scene in Mr. Smith Goes to Washington where Jimmy Stewart is filibustering and the room is pretty [00:04:30] empty and he calls for a quorum?
Hannah McCarthy: Of course.
Speaker9: Bring the call to quorum. Call the quorum.
Speaker10: No hurry, Mr. President. I got plenty of time.
Nick Capodice: If a majority of the Senate isn't there in the room, a senator may call a quorum. Senate rules are that they do a roll call to make sure. And if the bodies aren't there, they may direct the sergeant at arms to request and, when necessary, to compel the attendance of the absent senators.
Hannah McCarthy: What [00:05:00] exactly does compel entail? How far could that go?
Nick Capodice: It's rare for it to get really physical, but it has happened. Republican Senator Bob Packwood was dodging quorum during a filibuster in the 1980s. He locked the doors of his office. The sergeant at arms unlocked it using a skeleton key. Then Packwood held his body against the door. The sergeant busted the door open, injuring Packwood's hand, and eventually a bandaged Packwood [00:05:30] was carried in feet first to the Senate chamber.
Hannah McCarthy: Did it work? Did cloture get invoked after he was dragged in there?
Nick Capodice: No. Funnily enough, no. Cloture is really hard to enact. It only gets invoked about half of the time. And before we leave quorum, there's a story of a young state legislator who famously jumped out of the window to dodge quorum after they'd locked the chamber doors. Do you have any guesses who would do this, Hannah? I'm going to give you a hint. Reporter [00:06:00] said he wasn't injured in the fall because, quote, his legs reached nearly from the window to the ground.
Hannah McCarthy: What was it, Abe Lincoln?
Nick Capodice: Honest Abe. Uh, and apparently he did it again a few years later.
Hannah McCarthy: All right, so the filibuster is just a little bit odd. Notwithstanding the jumping out of windows, this idea that someone can stop legislation by talking and talking, where did that come from? Is [00:06:30] it in the Constitution?
Molly Reynolds: So the filibuster was not. It's not in the Constitution. It was not part of the founders original vision for the Senate. The emergence of the filibuster was made possible in the early 19th century, when the Senate and sort of it was actually a simple housekeeping matter removed from its rules, a provision that would allow a simple majority to end debate. This was not sort of purposeful or strategic. They were simply trying to streamline the rules. And so when they took [00:07:00] out this option for ending debate with a simple majority, no one really thought that this is what was going to happen.
Nick Capodice: This provision was removed at the behest of one Aaron Burr, who was the vice president in 1805. And he just thought it wasn't needed. He had no idea that it would evolve into the stickiest sticking point in the legislative process.
Hannah McCarthy: Where does that word come from, by the way? Filibuster?
Nick Capodice: Yeah, it comes from the Dutch freebooter, which basically means freebooter. [00:07:30] Like a pirate.
Hannah McCarthy: Like a pirate? How? Like a pirate.
Nick Capodice: Someone who plunders and robs with no regard to the law, just freebooting all over the place. And the practice of filibustering is old. So no other country does the filibuster the same way we do. They do have filibusters, but they operate differently. But this idea of stalling legislation by talking and talking, it goes back to ancient Rome. Cato would talk [00:08:00] until the sun went down to infuriate Julius Caesar. But initially in the United States it was very rarely done.
Molly Reynolds: But then, during the 19th century, filibusters started to become a regular feature of the Senate as a way for opponents of particular things that were on the Senate's agenda to try and engage in obstruction.
Nick Capodice: First famous one was in 1837. The Whigs filibustered to prevent Andrew Jackson from expunging a censure. And [00:08:30] then in 1841, there was a battle of filibusters on the topic of creating a national bank. Whig Senator Henry Clay moved to make a rule to end debate. And then Democratic Senator William King said he would filibuster that rule until the cows came home, and that Clay, quote, may make his arrangements at his boarding house for the entire winter. End quote.
Hannah McCarthy: So filibustering had caught on.
Nick Capodice: It had. And after half a century we finally get some closure. [00:09:00]
Molly Reynolds: In 1917. So the early 20th century, it sort of reached a point where you had a majority in the Senate with the backing of President Wilson, who were sufficiently frustrated by an obstinate minority that they adopted the first version of what we now call the cloture rule, which at that point allowed two thirds of all senators present and voting to cut off debate on, [00:09:30] um, a pending measure.
Hannah McCarthy: This is where cloture comes from.
Nick Capodice: This is.
Hannah McCarthy: It. And initially it was two thirds of the Senate, not 3/5.
Nick Capodice: Yeah it was that's 64 out of 96 senators as we were only 48 states back then.
Hannah McCarthy: Did they successfully invoke cloture to arm those ships?
Nick Capodice: Uh, nope. The first successful cloture wouldn't be invoked until a couple years later in 1919. Then this whole period from the 1920s leading up to the 1970s, it's sort of [00:10:00] when the filibuster had its day in the sun, and it's not surprising that it is tied to one of the most contentious eras in US history.
Speaker11: This is little Rock Central High School, approximately two hours before the school is scheduled to open its doors for the fall semester. There are approximately 200 National Guardsmen.
Speaker12: State troopers sends 500 troops of the 101st Airborne Division of the United States Army to Little Rock by night. They are to keep order and to see that the [00:10:30] law of the land is obeyed.
Hannah McCarthy: By the way, if anyone wants to know more about little Rock, Governor Faubus, President Eisenhower and all that, we have got a link to our episode on federalism in the show notes.
Nick Capodice: So in the wake of the court's ruling in Brown versus Topeka Board of Education, a group of Southern Democrats fervently opposed the desegregation of schools and one of the most ardent opponents to desegregation was South Carolina Senator Strom Thurmond. [00:11:00] In 1957, the Senate proposed a Civil Rights Act. This is the first civil rights act since 1875 to protect the voting rights of Black Americans. Now, this bill was assured to pass. It had the votes. But Thurmond objected and filibustered the bill.
Hannah McCarthy: Were there enough senators who were for the bill to invoke cloture?
Nick Capodice: There were not. At this time cloture needed 66 votes and they just didn't have him.
Hannah McCarthy: So how long did he talk?
Nick Capodice: Strom [00:11:30] Thurmond talked for 24 hours and 18 minutes.
Speaker7: How?
Nick Capodice: Well, the guy prepped this guy. Filibusters. He took steam baths leading up to it to dehydrate himself.
Hannah McCarthy: There you go. You got to be dehydrated.
Nick Capodice: And when he was in the third hour, Senator Barry Goldwater asked to interrupt the filibuster for a procedural diversion in which Thurmond ran out to use the bathroom real quick after that, just in case a bucket was reportedly [00:12:00] kept in the cloakroom of the Senate so Thurmond could technically hold the floor with one foot in the Senate and the other in the cloakroom. But apparently the bucket wasn't necessary.
Hannah McCarthy: Okay, so he did not have to use the bathroom again, is what you're saying?
Nick Capodice: No, he didn't he didn't have to use the bucket.
Hannah McCarthy: So what did he talk about?
Nick Capodice: Well, after initially talking about why he opposed this bill, he went on to read the Declaration of Independence, George Washington's letters. And in what might be the least [00:12:30] clicked on link I've ever put in the show notes, I've got one down there for the full 88 page minuscule font transcript from the Congressional Record.
Hannah McCarthy: So I know you have to stay standing and you can drink water. Are there any other rules for filibustering?
Nick Capodice: Technically, you're allowed to have water or milk, but honestly, the rules aren't really strictly enforced. Strom Thurmond was brought glasses of orange juice, and he munched on little pieces of cooked hamburger and ate malted [00:13:00] milk drops. Also, senators slept on cots during his filibuster to avoid a call to quorum. And then a day later, a full day later, it was done.
Hannah McCarthy: And the Civil Rights Act of 1957 was passed.
Nick Capodice: It was, but this happened again. Southern Democrats joined up to filibuster the Civil Rights Act of 1964, stopping all business in the Senate for over 75 hours.
Hannah McCarthy: So [00:13:30] when did the big change happen from cloture requiring two thirds to 3/5?
Nick Capodice: That would not happen until the 1970s.
Molly Reynolds: The current way that the the rule works dates to 1975. And that's about that's also about the point that we started to see the filibuster used really routinely. There's a longer for more of American history. It was used more sparingly and in 1975, in part because in [00:14:00] a separate rule change, the Senate also basically allowed for what we call dual tracking, which is the idea that more than one thing can be pending at once. It sort of reduced the cost of engaging in a filibuster, because you weren't actually holding up all of the other business. If you were demanding that the majority get to 60 votes in the current moment, we don't really see senators actually have to go to the floor and hold the floor in order to engage in a filibuster.
Hannah McCarthy: Wait, [00:14:30] so a filibuster does not need someone talking anymore?
Nick Capodice: No, not at all. Once the Senate agreed to this dual track procedure, you're not stopping the business of the Senate when you filibuster, so it's kind of pointless.
Hannah McCarthy: So what happens now?
Molly Reynolds: We've gotten to a point where both sides see The most effective way to navigate this tension is to have one side say, we're going to demand [00:15:00] that you get 60 votes and the other side say, okay, we're gonna try and get 60 votes. Either way, we're going to succeed or we're going to fail. And the demands on senator's time has led us to a place where everyone feels like they're better off with a system where we expect the supermajority, but we don't actually force the filibustering senator or senators to hold the floor.
Hannah McCarthy: Okay, so let me make sure I have the new process. A bill is proposed [00:15:30] in the Senate. Someone in the minority party threatens a filibuster, but they don't actually do it.
Nick Capodice: Nope. They don't. If any senator wishes, they just tell the head of their party that they want to hold a bill.
Hannah McCarthy: And is that public information? Do we know which senators are responsible for stopping particular bills?
Nick Capodice: We do not know. It is usually anonymous. It is a silent filibuster, and once that happens, debate stops. Consideration of the bill stops. And [00:16:00] if there aren't 60 votes to pass cloture, the bill just kind of goes away. This is the norm now. We have gone from a few cloture invoking every year to hundreds.
Hannah McCarthy: So why, Nick, why do we continue to do it this way?
Nick Capodice: Well, I'm going to lay out the arguments for and against the filibuster, as well as breaking down exactly how it can be changed if it gets changed, including the nuclear option. But first, we're taking a quick break. We're [00:16:30] back here on Civics 101 talking about the filibuster. And I'm not going to take steam baths to opine on it for 24 hours. But our show exists because of listener support. So please consider making a tax deductible year end gift to keep us running at civics101podcast.org.
Hannah McCarthy: Okay, Nick. So is there anything that cannot be filibustered, as in, it is so important [00:17:00] that it kind of dodges the whole thing?
Nick Capodice: Uh, yes, there is. There is one major kind of bill, a reconciliation bill. These are bills that change mandatory spending and revenues. Reconciliation bills are not subject to the filibuster. And our procedure knowing friend, the Senate parliamentarian is the one responsible for sniffing out those non-budgetary elements of a bill and having them removed before they continue. But there are other [00:17:30] things that can't be filibustered, and these additions are relatively new. Here again is Molly Reynolds.
Molly Reynolds: We have seen over the full sweep of history, a real kind of slow chipping away at the filibuster. And a couple of really pivotal points in this history came in first in 2013, when Democrats held the majority in the Senate, and they were sufficiently frustrated by sustained Republican obstruction over judicial [00:18:00] nominees to the the lower courts that they used the nuclear option to reduce the number of votes needed to end debate on judicial nominees to the district courts and the circuit courts.
Hannah McCarthy: Can we just go over the term nuclear option? Where did that come from?
Nick Capodice: Trent Lott Mississippi Senator Trent Lott coined the term nuclear option in 2003. And here is how the nuclear option works. First, let me say again, there is nothing in the Constitution about the filibuster [00:18:30] or pretty much anything we've talked about today. It is all in the rules of the Senate.
Hannah McCarthy: So theoretically, the Senate could change those rules at any time.
Nick Capodice: They could honestly eliminate the filibuster tomorrow if they wanted.
Hannah McCarthy: How many votes does it take to change the rules, though?
Nick Capodice: Two thirds have to agree to do that, which is 66 votes.
Hannah McCarthy: That's a.
Nick Capodice: Lot. It is. But there is a workaround. A simple majority can raise a point of order and say, for this kind of bill or nomination, [00:19:00] 51 means 60. And the presiding officer says, no, that's against the Senate rules. And the majority says, well, we're going to appeal that. It's against the rules. And that appeal only needs a majority to win. And a new precedent is set. This is the nuclear option. And again, it was first used to confirm lower court appointees.
Speaker13: Senate Democrats voted yesterday to change the rule that allowed Republicans to block presidential appointments. Senators [00:19:30] will only be allowed to filibuster Supreme Court nominations.
Molly Reynolds: So that happened in 2013. And then in 2017, Republicans in the majority and wanting to confirm Neil Gorsuch to the Supreme Court, made a similar change using a similar tactic.
Speaker14: Senate Republicans have changed the way the chamber confirms Supreme Court nominees from the 60 vote threshold to a simple majority, saying they're going back to business as usual. Before Democrats started requiring that 60 vote threshold [00:20:00] for judges years ago. Republicans insist the Democrats effort to block the confirmation of Neil Gorsuch is all about payback. Democrats say Gorsuch is a nominee for a stolen Supreme Court seat, citing Republican refusal to consider then President Obama's choice last year.
Molly Reynolds: So one thing that happened this year, um, again, sort of working through this same, uh, basic setup of changes to the precedence, is the Senate made it easier to confirm a whole bunch of nominees all [00:20:30] at once. The overall story here about procedural change in the Senate is one of kind of tit for tat. So one party is in the majority wants to do something, gets really frustrated by the minority for long enough that then they're willing to change the way the Senate works to get the thing that they want.
Hannah McCarthy: And Nick, the shutdown that we just got through this October, was that tied to a filibuster?
Nick Capodice: It was because the shutdown was about an appropriations bill. And while they sound similar appropriations [00:21:00] bills, which are discretionary spending, not mandatory spending, are not the same as reconciliation bills.
Molly Reynolds: One really important thing that Congress does every year is pass appropriations bills. That's what funds large parts of the federal budget, lots of really important services that Americans rely on paychecks for active duty service members, scientific research funding, lots and lots of things that Americans associate with with the federal government to pass those bills in the Senate does require [00:21:30] getting over that 60 vote threshold. You can filibuster appropriations bills. And so when we had the government shutdown starting on October 1st, and Democrats position was for most of the shutdown, that they were not going to negotiate with Republicans unless Republicans were willing to make a certain change to health insurance subsidies under the Affordable Care Act, something that was sort of separate from the appropriations process itself. Republicans said, we're not going to do that.
Speaker15: But on the short term issue of the people who [00:22:00] with the subsidies and that's going to expire at the end of the year, will you have a vote on the issue as you're 13 Republicans, frontline Republicans, people that are that you're the speaker because of them? Yes. They're in districts that are vulnerable. Sure. Will you have a vote so they can vote?
Speaker16: The very people that you were citing in the letter believe we have to have real reform. So what I'm what I'm committed to and I have all along this has never changed.
Nick Capodice: And all of this, all this has led to the discussion that comes up every few years. What if what [00:22:30] if we just got rid of the whole thing?
Molly Reynolds: And so there was some pressure, honestly, from folks both on the right. So from President Trump.
Speaker17: It's time for Republicans to do what they have to do. And that's terminate the filibuster. It's the only way you can do it. And if you don't terminate the filibuster, you'll be in bad shape. We won't pass any legislation.
Molly Reynolds: And there were a number of sort of Democrats on the left who would also like to see the filibuster go away, who said, you know what? Let's just do [00:23:00] it. Let's just rip off the band aid, get rid of the filibuster, have the government reopen with a simple majority of votes, eliminate the ability to filibuster these kinds of spending bills. That's, in fact, not what happened. President Trump has been sort of beating the drum on eliminating the filibuster since his first term. I think this is in large part because there are things that he would like to see Congress do that they can't do with, with filibuster in place, even when Republicans control both the House and the Senate. [00:23:30] I think on the Democratic side of the aisle, there are some folks who see the filibuster as really limiting what Democrats can do when they have unified control of Washington. And so they would also ultimately like to see it go away.
Speaker18: I don't want to hear any Democrat clutching their pearls about the filibuster. We all ran on it. I ran on that in my so like, that's yeah.
Molly Reynolds: But there were enough senators sort of still in the middle, uh, who said, no, no, we don't want [00:24:00] we don't want to change the way the Senate works. Certainly not worth changing the way the Senate works to do this particular thing. If we're going to do if we're going to make this change, it's got to be for something that's more important to us than just reopening the government.
Hannah McCarthy: This brings me to my last question, Nick. Why do we still have it? I've heard the arguments that the filibuster forces consensus. It makes people reach across the aisle to get something done. But here we are, as we so often say, in an era of hyper polarization, [00:24:30] there's not a lot of acquiescence to the other side. So what's stopping the Senate from ripping off the Band-Aid?
Molly Reynolds: I think the reason we still have the filibuster is because individual senators find it useful to their own sort of power and policy goals. So particularly if you are a more moderate member of the Senate in the majority, having the filibuster allows you to sort of shift blame and say, you know, there are things that the more [00:25:00] extreme members of my party want to do, and we can't do them because the filibuster is in place.
Nick Capodice: Let's say you're a senator who lives in a state, and that state is really opposed to marijuana legalization. And the head of your party says, come on, buddy, you're going to vote for this. We're going to make it legal, and you know that you will get primaried in the next election if you vote yes on legalization, because your state's against it and the filibuster saves you here. You don't have to answer to anybody. [00:25:30] You just wash your hands of it and say, well, filibuster. Nothing I can do.
Molly Reynolds: One thing that the filibuster creates is a scenario where you have parties that go out and campaign for election and say to voters, if you elect me, if you elect other members of my party, we're going to do X, Y and Z, and they make these promises and then they get into office. And the filibuster is really limiting what they can do, and they can't deliver on to their voters in the same [00:26:00] way that they said they would be able to when they were running for election. So it creates this sort of democratic legitimacy question, and it it makes it harder for parties to actually do the things they've promised voters that they said they would do.
Hannah McCarthy: Does Molly think we're stuck with it?
Molly Reynolds: I do think it's going to go away someday. I think the story of the filibuster over American history is that we're on a long, slow march to majority rule in [00:26:30] the Senate, and it's a case of at some point in the future, a party is going to have unified control in Washington. There's going to be something it really wants to do that it can't do with the filibuster. And that will be sort of the moment that it's willing to make a change, and we just haven't quite reached that point yet.
Nick Capodice: Well, [00:27:00] that is the filibuster. Wait, before we end, I've always wanted to do this. There are strange things done in the midnight sun by the men who moil for gold. Wait, what's the one you know that you have memorized?
Hannah McCarthy: The winter evening settles down with smells of steaks and passageways. 6:00.
Nick Capodice: Yours is much better. This episode was made by me. Nick Capodice with You Hanna McCarthy. Thank you.
Hannah McCarthy: Thank you. Our staff includes Rebecca LaVoy, our executive producer, and Marina Henke, our producer.
Nick Capodice: Music. In this episode from Epidemic [00:27:30] Sound blue Dot sessions, Azura and the musician. Loved by a supermajority of podcast makers Chris Zabriskie.
Hannah McCarthy: Civics one one is a production of New Hampshire Public Radio.