The Senate Filibuster Explained

The filibuster gets treated like an ancient feature of the U.S. Senate, but the version that drives today’s gridlock is surprisingly modern. We sit down with Dr. Sean Beienberg to unpack how a procedure that’s not even named in the Constitution ends up acting like a standing 60-vote requirement for most legislation.

We start with the basics: what a filibuster is, what it is supposed to do, and why the classic image of someone heroically talking for hours is more myth than daily reality. From Aaron Burr’s rule change that helped create unlimited debate to the Senate’s 1917 cloture rule, the story is really about Senate procedure and incentives. Then we hit the turning point: two-tracking in the 1970s, when the Senate began treating an intent to filibuster as enough, dramatically lowering the cost of obstruction and sending filibuster use through the roof.

From there, we follow the consequences. Why can the budget move when other bills cannot? How did fights over executive branch nominees and judicial nominations escalate from up-or-down votes into procedural warfare, with ripple effects that shape Supreme Court confirmations? We also explore the argument that the filibuster may be constitutionally suspect because the Constitution calls for supermajorities only in specific situations, plus realistic reform ideas like ending two-tracking or forcing debate to actually happen.

If you’ve ever wondered why “just pass a bill” is rarely that simple in Congress, this conversation connects the dots. Subscribe for more clear, practical civics, share the episode with a friend, and leave a review with your take: should the Senate keep the filibuster, restore the talking filibuster, or scrap it entirely?

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Transcript

0:01

Welcome back to Civics in a year. Today we're talking with Dr. Sean Beierberg about filibusters, which was always something fun for me to teach. My favorite filibuster to show students was Senator Ted Cruz reading Green Eggs and Ham. And longest filibuster for a while was Strom Thurman filibustering the Civil Rights Act. And until recently it became Senator Corey Booker. So, Dr. Beinberg, welcome back. First of all, what is a filibuster? Yeah. So the filibuster, there's actually an older version or an older thing that was also called a filibuster, which was uh in the 19th century, Americans trying to go overthrow Latin American countries and get them to join the United States. A thing called the filibuster war, where a guy named

Famous Filibusters And The Big Question

0:48

William Walker, I think, tried to take Nicaragua. A very bizarre movie with Ed Harris was made in the 80s about this, that the first two-thirds of it shot as a period piece, and then suddenly like an Apache helicopter and a tank roll by. Why is this happening? So that's that's like the old, that's one kind of old-timey filibuster. But for our purposes, the filibuster is a product of Senate rules. The Constitution allows there it's a the

What A Filibuster Really Is

1:17

filibuster is effectively a debating, I'll call it a tactic that ostensibly is used to maintain debate. That's its sort of official definition. It's not in the like the word filibuster is not in the constitution. So the constitution allows each of the uh houses to set the rules for their procedures, how they're operating. Okay. Um so that is the nominal constitutional justification for it. That the Senate basically says you can have unlimited debate in its own rules. That's not a constitutional requirement. Uh I'll come back to what the constitution has to say about this uh in a second. But so the filibuster, as most folks know it, is effectively a member of the Senate talking in turn talking in a way to basically stop

Aaron Burr And Unlimited Debate

2:05

consideration or particularly passage of a bill. How it happens is in some sense a weird artifact. In 1805, when Aaron Burr is vice president, he eliminates a motion for a previous question, which is an old parliamentary procedure that just says we can stop debate. So for some reason they just take that out. And so they the Senate can basically just keep debating. And eventually folks figure out that this could be potentially a way to, in fact, either stall legislation or particularly if you're running into the end of a legislative session, kill it all together. So we'll just buy a little extra, uh a little extra time. And so there I'm not gonna list off every sort of example of them, obviously. Uh the the classic version actually is like I suppose Ted Cruz Green Eggs in hand may have displaced it in popular culture. But everybody has the understanding that it's like Jimmy Stewart in Mr. Smith goes to Washington. Yes, where he wants to keep it talking so that he can buy time. And so this is like the heroic version that defenders of the filibuster will say, see, this is what we want. So the filibuster in 1917, when there's an effort to get the United States into World War I. Like they're trying to get a declaration of war, basically, after you know the Lusitania gets sunk in the Zimmer and Telegram and all that stuff, right? And so members of the Senate that are anti-war, we talked about this, we were talking about Henry Cabot Lodge. He is not one of them, but there are others that are trying to filibuster this. And so the Senate sets a rule saying if two-thirds of us say shut up, you have to shut up. And they call this cloture. And this is the this is the rule for a while. This is the rule that, as you alluded to, some of the the you know, the efforts to obstruct the Civil Rights Act and other some of the other southern obstruction of civil rights laws, they use uh this. Now, the problem with that before is if you're filibustering,

Cloture And The Talking Filibuster

3:58

it's hard. You have to stand up there. You can't say, hey, I'm going to go to the bathroom, I'll be back, or anything like that. Right. The closest you can get to relief is calling on one of your friends to like ask you a question. And then they can sort of get away. They can ask like a long question, long, long question to basically give you time to like drink water or whatever. But you can't step out to like the bathroom or anything like that. You're sort of stuck there. And I I'm trying to remember, I don't even think you can sit down. But nope, you cannot sit down. But you're supposed to basically you know keep going, so you can sort of get a little bit of relief, but you had to stay there. And so there was a cost to this, like literally a physical cost of uh there's literally a physical cost to this. So you only could really do it on a couple of things. And so this was it had sort of its own ability to police itself in the sense of you have to pick, because if you're filibustering, you're also stopping the Senate from everything else. So you and your crew can't pass anything else, you can't pass the budget, you can't pass whatever, right? So there was an incentive to pick all right, what are like the two things this year that we're gonna filibuster? So if you're the South, it makes strategic sense. You're gonna filibuster the Civil Rights Act because this is a big deal for you politically. But otherwise, there's other stuff that again, I'm not endorsing the merits of the South and saying that for the rec relevant of that, but like that was a big important thing. You're gonna filibuster only a couple big important things in the 1970s. The United States Senate under uh Democratic Senator Mike Mansfield says, What if we lower the cost of the filibuster in some ways and raise it in others? And so they create a phenomenon called two tracking. And this is actually what the modern filibuster is. So I will admit I have little patience when I hear people in the Senate defend and say, we've had the filibuster forever. Now, whether you think there's a case to be made for the filibuster, but the case is not, it's been here forever. Because the one from the 70s is so radically different than the one before. Because in the 70s, they basically say,

Two Tracking Creates The Modern Filibuster

6:09

we will now treat an intent to filibuster as the same as a filibuster, and then we will move on to other legislation. So effectively, again, oversimplifying a little bit because you good listeners do not care about all the arcana of Senate procedure, but effectively they say, Do we want to proceed to consider bill number one this year? And somebody will say, I'm going to filibuster that. Are there three-fifths votes to stop that? So they drop the number from two-thirds to three-fifths. So in theory, that makes it easier. But no longer, if no longer do you have to then keep talking. It's like, oh, there's not three-fifths here. If you're the Senate majority leader, now you say, all right, we're just moving on from that piece of legislation and we're moving on to something different. So the practical effect of the modern 1970s filibuster is to basically turn the Senate into requiring three-fifths vote to proceed on any legislation. It creates a de facto supermajority requirement that is limited now by did you get 60% of the Senate, not do you have to go to the bathroom, right? Like which was the check before. Yeah. And so unsurprisingly, you can look at like little charts of how many times the filibuster was used, and it's a couple times a year, and then it just explodes, starts to explode in the 70s, and then the line is almost like exponential where it just keeps increasing really, really, really aggressively. And members of the Senate start using it for more and more things. So historically, you did not filibuster uh executive branch nominees. You voted them up, you voted them down. Like, you know, Clarence Thomas was confirmed by like 5248 or 5149 or something, right? So they didn't even think to filibuster at that point. The Democrats didn't think to filibuster because you just didn't do that. The nomin, so you get basically Republicans filibustering more legislation.

Filibusters Explode And Budgets Slip Through

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Democrats begin filibustering executive branch nominees under the George Bush administration, and judicial nominees, again, which also wasn't done. So then that could sort of moves it into a new category, arguably a qualitatively different category. I did jump over one thing. Sorry. In the 1980s, they recognize and think, ooh, maybe we don't want to be able to filibuster the budget. So we're gonna say you can't filibuster that one. So they pass Robert Byrd, who himself had been a fan of the filibuster on civil rights against civil rights legislation back in the day. Now he's majority leader from West Virginia, says you can't filibuster the budget stuff anymore. So this is why there's this insane, deranged effort every year to tuck everything that you can into the budget, the big omnibus budget in the Senate, because you can't filibuster that. So this is this is like why the only thing that ever happens in the Congress anymore is the budget or completely like renaming post offices stuff. Because the filibuster basically, I'm being a little exaggerated, but the filibuster basically blocks everything else. But you got your one shots, pass your legislation, you stuff everything you can in it, and you can't filibuster that. So but jumping back ahead, so Democrats have begun filibustering executive branch and judicial nominees. Is this the one that starts with Robert Bork? No, Bork Bork doesn't get filibustered. Bork does get voted down. But he his like hearing becomes this like circus, essentially. His hearing becomes his hearing becomes a circus about basically judicial qualifications because everybody, everybody recognizes in terms of like intellectual qualifications, etc., Bork is qualified. He's like one of the five most influential law professors in the country. He had been the solicitor general, he had been a federal circuit court judge for a long time, right? Well respected on just the competence. But Bork had was one of the early sort of and most aggressive defenders of constitutional originalism.

Judicial Fights From Bork To Gorsuch

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And very famously, Kennedy and Biden, uh, even though Biden had actually quietly promised Bork he'd leave him alone, switches actually. We have there's an interview that Biden does the year before saying, like, I hope Reagan doesn't nominate Bork because that guy's way too smart for us to be able to vote him down and way too qualified. Kennedy has, I might, as far as I know, doesn't say that. But Biden basically has a switch. But yeah, Kennedy goes after him really hard and says, in Robert Bork's America, insert this long list of policy consequences he thinks would happen. And so Bork goes down quite bitterly. And then they nominate Douglas Ginsburg afterward, who doesn't go down to a filibuster. He gets yanked by Ronald Reagan after it turns out he smoked pot, and Nancy Reagan got mad about that. So that's how Anthony Kennedy ends up on the Supreme Court as the third choice. But yeah, so Robert Bork's failure makes Senate conf makes judicial confirmations a lot more contested, which then interacts with the Democrats beginning to like, oh, we don't want to let dang, we let Clarence Thomas on the court. We don't want that to happen again. So they start filibustering judicial nominees, which then leads Republicans to uh filibuster nominees. And then Democrats, uh anyway, Democrats say we're going to eliminate it for one kind of judge, and Republicans say, well, if you do it for one kind of judge, then when we're back in power, we're gonna eliminate it for the other kind of. That's how Neil Gorsuch ends up in the Supreme Court, is they're gonna start filibustering him. And so at that point, and I mean I I I think that that outcome that you can't filibuster nominees is probably a good one. So that has been has sort of that old norm has now been institutionalized. That you don't, that neither side can filibuster nominees, vote them up or vote them down. On the rest of legislation, the filibuster still exists, or on legislation, the filibuster still exists. There were some people that said we should end the filibuster for, like the Democrats were saying, we should end the filibuster, I think, for abortion and voting rights. And then Republicans have said, no, well, we can we should end the filibuster for X, Y, and Z limited things, but we can preserve it otherwise. But that idea that you can eliminate it only partway is obviously like you either got to do it or you you're not gonna do it. So yeah, and this is one where it actually is quite funny to see the rank, the rank hypocrisy of the partisans. Like you line them all up. The the the the journals are the journalists and their sort of attend opinion people are even worse on that. But yeah, watching all the Democrats a few years ago and demand the end of the filibuster to then switching it is super important, and Donald Trump's now calling for the end of the filibuster.

Partisan Flip Flops And Constitution Questions

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And it's that is I think I tend to think people are a little too cynical sometimes about politics, which if you know me, I'm very cynical. That's one where we probably aren't cynical enough. Like the filibuster positioning just literally turns on a dime on that one. So that's that's the sort of the mechanics of it. Now, there is an argument that some make that it's unconstitutional as well. Oh, the constitution actually bans it because to the extent that the filibuster creates a de facto supermajority to pass, everywhere that the constitution actually requires a supermajority, it says so. You need to have a supermajority for treaties, you have to have a different uh supermajority for ratifying and proposing or ratifying constitutional amendments and so on. And so the argument is that if the constitution doesn't say a supermajority, that it needs to basically be a majority. I'm I I I like that argument. I find it probably wishful thinking, but it's a kind of a gray area. It's one that the courts will never get involved in because they're gonna say, like, Senate, you take it up with yourself. But I figured I'd throw that out there uh as something that is is worth considering. The more realistic possibility, I think, rather than completely ending the filibuster, to my mind, probably the better version would be ending the two tracking and going back to the ancient filibuster of 1973 in ancient history. Back in the 1900s. Yeah, but at least I you know, I I get there's a case to be made. So Senator John Kyle and I used to co-teach a class. He was a political hero of mine, and this was one of the places that we that we disagreed because he was very much for the filibuster because he argued by forcing something closer to a consensus, this basically means that you you you're not getting bad legislation, you're forcing buy-in and deliberation. And he argued for various technical reasons, and also from personal experience, he said actually it creates a sort of perverse way to make us talk to each other. So he thought it was actually useful. So again, I don't mean to deny that. I'm only disparaging the this is how it's always been argument. Like the filibuster is a product of 19 the mid-1970s. There are many things from the mid-1970s that we have happily forgotten. There are some that are fine, but debate the filibuster sort of on its own merits, not saying the filibuster is not the electoral college, right? In terms of being like a core constitutional feature from time immemorial. The filibuster, as practice, is a product of legislative protocols 50 years ago. So take it or leave it on its own merits. And then so the last one, Corey Booker's, was 25 hours. The whole purpose of it is to prevent a vote. Well, you can fill you can, yeah. So usually what you do is you can even filibuster not just the vote, but even proceeding to take the issue up. So you can stop either one. So I've even seen the more the most moderate version is you should not be able to filibuster the initial effort to even talk about the thing. Oh. Because if you think that the purpose of the filibuster is in fact to have unlimited debate, then if you can't even debate the thing. But you can, according to Senate rules, filibuster even the motion to proceed to debate, not just the final vote itself. So again, in practice, it's in it is effectively just

Filibustering The Motion To Proceed

16:04

you can't get legislation through if it's two fifths. But technically you can filibuster it either part, either the final vote or the motion to even take it up for debate. And the only entity that can get rid of the filibuster is the one that uses the filibuster. Correct, yes. Okay. Okay. That is correct. Yes. Well, nobody said that the US Constitution or politics was boring. Dr. Beinberg, thank you.