Honestly, I’m a romantic and a movie buff, and I like nothing more than watching Jimmy Stewart play the newly elected Senator Jefferson Smith, in Frank Capra’s 1939 film, Mr. Smith goes to Washington, where Smith stages a talking filibuster. The filibuster is a loosely defined term for action designed to prolong debate and delay or prevent a vote on a bill, resolution, amendment, or other debatable question.1 And, yes, over the decades we have had real life talking filibusters. Some were effective, others were not.2
In the talking filibuster, in order to prevent the majority from voting, a senator, or a bunch of senators, had to actually hold the floor, which meant they were exhausted, and they had to bear the political consequences of preventing the Senate from doing anything at all. In 1972, then Senate Majority Leader Mike Mansfield inaugurated a new method of approaching Senate procedure. He instituted a two-track procedure that gave the filibuster new strength. This system allowed the body to toggle between different bills so that a bill facing a filibuster was kept on the back burner until a vote to end debate could be successful. This meant that no senator had to take the floor and stay there, making the filibuster practically invisible to the public and the media. The talking filibuster of Senator Jefferson Smith, and his real life counterparts, was effectively gone. All a senator needed under the two-track system was to indicate an intention to oppose cloture3 in order to move a bill to the end of the line - a silent filibuster.
Now mix the silent filibuster with the heightened partisanship that exists today, and it’s hard to see a through line to accomplishing big important legislation. If your party is in the majority, the filibuster is an obstacle to passing the policies the majority party was elected to pass. If your party is in the minority, its handy.
To some extent, the Senate has gotten around the cloture rule when seeking to vote on a measure or motion by seeking “unanimous consent” asking if any of the 100 senators object to ending debate and moving to a vote. If no objection is heard, the Senate proceeds to a vote. If the majority leader or another senator can’t secure the consent of all 100 senators, the leader or another senator typically files a cloture motion, which then requires 60 votes.
As cloture has been more frequently used as a tactic than for allowing longer debate and deliberation, critics of the filibuster have voiced frustration for the resulting gridlock that has resulted. If 60 votes are routinely needed in the Senate for even the most minor matters, it makes it nearly impossible to legislate in the national interest and find common ground.
So what’s next? Maybe budget reconciliation - a process which does not require a cloture vote, only a simple majority to adopt certain bills addressing entitlement spending and revenue provisions, thereby prohibiting a filibuster.4 Watch for the Senate to pass President Biden’s infrastructure bill using this process.
One option includes returning to the talking filibuster. Another is to allow a carve out for important legislation like federal voting rights legislation. Another just might be kicking the filibuster to the curb.
See senate.gov “About Filibusters and Cloture.”
Senator Robert La Follette used the filibuster to demand free speech during wartime. Senator Huey Long effectively used the filibuster against bills that he thought favored the rich over the poor. Strom Thurmond effectively filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957. But, the filibuster of the Civil Rights Act of 1964 that went on for 74 days was ineffective.
In 1917 the chamber adopted the first version of its cloture rule - the Senate rule which requires 60 votes to cut off debate on most measures. It allowed 2/3 of all senators present and voting to end debate on “any pending measure.” Then, in 1975, the number of votes needed to invoke cloture on legislative matters was reduced to 3/5, or 60, if the Senate was at full strength.
Congress has previously written into law special procedures that limit the time for debate. Because there is a specified time for debate in these cases, there is no need to use cloture to cut off debate. One such example is budget reconciliation.