No procedural rule in American politics generates more heat and less light than the Senate filibuster. Defenders call it the guardian of minority rights and deliberative democracy. Critics call it a tool of obstruction that empowers the minority at the expense of the majority. Both sides are partially right, and the full story is far more complicated and fascinating than either side's talking points suggest.
To understand the filibuster's current role, we must first understand its accidental origins, its evolution through two centuries of American politics, and the many times it has been used, for both noble and deeply ignoble purposes.
The Accidental Origin: Aaron Burr's Gift to Obstructionists
The filibuster was never intended to exist. The original Senate rules, adopted in 1789, included a "previous question" motion that allowed a simple majority to end debate and force a vote, identical to the rule that still exists in the House of Representatives. In 1805, Vice President Aaron Burr, in one of his final acts before fleeing to the western territories after killing Alexander Hamilton in a duel, advised the Senate to clean up its rulebook by eliminating redundant provisions.
Burr argued that the previous question motion had been used only once in the Senate's history and was therefore unnecessary. The Senate, following his advice, eliminated it in 1806, apparently without anyone realizing that they had just removed the only mechanism for ending debate by majority vote. For the next several decades, no senator exploited this gap, largely because the Senate operated on norms of collegiality and restraint that made such exploitation unthinkable.
The First Filibusters: 1837-1917
The first recognizable filibuster occurred in 1837, when a group of Whig senators held the floor to prevent President Andrew Jackson's allies from expunging a censure resolution from the Senate record. The tactic worked for a time, but the Jacksonians eventually prevailed through sheer persistence. The episode established a pattern that would repeat throughout the 19th century: the filibuster as a delaying tactic rather than an absolute veto.
The most dramatic early filibuster came in 1841, when Senator Henry Clay attempted to pass a bank charter over the objections of a small group of Democratic senators. The debate consumed 14 consecutive days, with senators sleeping on cots in the cloakrooms and taking turns holding the floor through the night. Clay eventually abandoned the effort, establishing the filibuster's potency as a weapon of legislative warfare.
"The Senate is a body which cannot be reduced to order except by its own consent. Each Senator is a sovereign, and sovereignty submits to no control but its own will." -- Senator John C. Calhoun, 1841
Rule XXII and the 1917 Reform
The watershed moment came in 1917, when a group of 11 senators filibustered President Wilson's proposal to arm American merchant ships against German submarine attacks. Public outrage was intense, and Wilson himself declared that "a little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible." The Senate responded by adopting Rule XXII, which created the concept of "cloture," a procedure allowing two-thirds of senators present and voting to end debate. It was the first time in over a century that the Senate had any formal mechanism to overcome a filibuster.
The Filibuster and Civil Rights: The Darkest Chapter
The most shameful chapter in the filibuster's history is its systematic use to block civil rights legislation for nearly a century. From the 1920s through the 1960s, southern senators used the filibuster to kill anti-lynching bills, voting rights protections, and employment discrimination measures. The filibuster became, in practice, the most effective tool of white supremacy in the federal government.
The 1957 Civil Rights Act passed only after its enforcement provisions were gutted to avoid a filibuster. Senator Strom Thurmond's legendary 24-hour, 18-minute filibuster against the bill remains the longest by a single senator in history. The 1964 Civil Rights Act required 60 days of debate and a bipartisan coalition of 71 senators to invoke cloture, the first time in history that the Senate had successfully overcome a civil rights filibuster.
The Modern Filibuster: From Mr. Smith to the 60-Vote Senate
The transformation of the filibuster from a dramatic, physically demanding act of dissent into a routine procedural hurdle is perhaps the most consequential institutional change in modern Senate history. In 1970, the Senate adopted the "two-track" system, which allows other business to proceed while a filibuster is nominally in progress. This seemingly innocuous reform had a radical consequence: it eliminated the physical cost of filibustering. Senators no longer had to hold the floor around the clock. They simply had to signal their intention to filibuster, and the majority leader, unwilling to tie up the entire Senate, would move to other business.
The result has been an exponential increase in the use of the filibuster. In the entire 19th century, there were approximately 23 filibusters. In the 2019-2020 Congress alone, there were over 300 cloture votes. The Senate has become, in practical terms, a body that requires 60 votes to do almost anything, a supermajority requirement that exists nowhere in the Constitution and was never intended by the framers.
The Nuclear Options
The term "nuclear option" refers to changing the Senate's filibuster rules by a simple majority vote, rather than the two-thirds vote normally required for rule changes. The metaphor is apt: it is a drastic, norm-shattering action with unpredictable long-term consequences. The nuclear option has been invoked twice in recent history. In 2013, Senate Democrats, frustrated by Republican obstruction of judicial nominees, eliminated the filibuster for all executive branch and lower court judicial nominations. In 2017, Senate Republicans extended that precedent to Supreme Court nominations, clearing the way for the confirmation of Justice Neil Gorsuch.
Where Do We Go from Here?
The debate over the filibuster's future is really a debate about two competing visions of democracy. Those who defend the filibuster argue that it forces compromise, protects minority rights, and prevents the "tyranny of the majority" that the framers feared. Those who oppose it argue that it enables minority rule, makes governance impossible, and has historically been used most effectively to block the rights of the most vulnerable Americans.
Both arguments have merit. The challenge for the modern Senate is to find a way to preserve the deliberative character of the institution while allowing a functional majority to govern. Whether that means returning to the talking filibuster, lowering the cloture threshold, or creating carve-outs for specific categories of legislation, the current status quo, in which 41 senators can silently veto any piece of legislation without even showing up, is democratically unsustainable.
"The framers created the Senate to cool the passions of the House. They did not create it to freeze the entire government into permanent paralysis." -- Former Senate Parliamentarian Robert Dove
Prof. Linda Chen teaches constitutional history at Georgetown University Law Center and is the author of "The Accidental Veto: How the Senate Broke American Democracy."