First, let me preface this by saying that modern usage of the term “filibuster” has diverged from its traditional definition, largely in response to changes in the practice. If you google “filibuster” you’ll get something akin to “using unlimited debate to delay or block a proposed bill.” This rarely happens in modern Senate practice. Today, a filibuster generally refers to the de facto three-fifths requirement to advance most legislation (60 votes in the full Senate). How we got here was mostly a series of accidents and compromises.

You might have heard politicians argue that the modern 60-vote requirement was the Founders’ way of ensuring that the Senate would respect minority rights, prevent tyranny of the majority, and force compromise among members. This is a fairly common belief in what I like to call American folk civics. It is also almost certainly retconned. While the Founders designed the Senate to be less democratic than the House, with longer, staggered terms and indirectly-elected members, they very clearly established the Senate as a majoritarian body. The original Constitution makes no mention of any sort of supermajority threshold except for specific scenarios: overriding presidential vetoes, ratifying treaties, proposing constitutional amendments to the states, expelling members of the Senate, and convicting federal officers through impeachment. These actions require two-thirds (currently 67 votes) of the Senate, but the assumption was that all other business would be undertaken through a simple majority. In fact, in Federalist #22, Alexander Hamilton explicitly warns of minority rule:

“The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”

Instead of being part of the grand constitutional plan, the filibuster’s origins can be traced to a seemingly innocuous rule change in the early days of the republic. In 1805, Vice President Aaron Burr—having only just killed Hamilton in a duel the previous year—presided over the Senate and proceeded to murder the previous question motion. Or, rather, he suggested that the Senate eliminate the rarely-used rule, which would have otherwise provided a simple parliamentary procedure to end debate and move to a final vote. It’s likely that Burr had no grander purpose for this change beyond cleaning up the Senate rules, and nothing came of it for several more decades. But by the late 1830s and early 1840s, senators realized that the lack of a rule to cut off debate meant that they could hold the floor indefinitely and halt all business.

It should be noted that while traditional talking filibusters were possible, at the outset they were still relatively rare. When they did occur, they generally served to delay legislation, rather than block it altogether. Holding the floor meant holding the floor, and while groups of senators could, and did, team up to keep their blockades going, if they accidentally yielded the floor to the wrong senator for any reason, it was over.

For the first successful effort curtail the filibuster, you have to fast-forward a bit to World War I. In 1917, a group of senators filibustered a bill to arm merchant ships. This was apparently a step too far as the country prepared to enter the war, and soon after they convened a group to propose reform. Eventually, the senators who wanted to completely end the practice and those who wanted to preserve it compromised by creating the cloture rule. By a two-thirds vote (67 senators today, 64 senators in 1917), the Senate could immediately end debate. Obviously, this was still a high bar. But because filibusters were still considered a rare practice at the time, cloture was infrequently invoked.

To answer your question regarding the AFL-CIO, I think Trumka is wrong in fact, but perhaps correct in spirit. As a technical matter, the filibuster predates Jim Crow. But it is true that the practice was repeatedly used to stymie civil rights legislation, perhaps more than any other kind. From the 1920s through the 1970s, the scope of legislation delayed or outright blocked includes anti-lynching and anti-poll tax bills, various civil rights bills, and the Voting Rights Act and the Fair Housing Act. South Carolina Senator Strom Thurmond set the record for the longest single-person speaking filibuster on record when he spoke for 24 hours and 18 minutes in opposition to the Civil Rights Act of 1957. To our modern eyes, the image of Southern senators forming procedural blockades to stop civil rights legislation that otherwise had the majorities to pass is especially galling. This is why I think modern critics of the practices have tried to Fram it as the Jim Crow filibuster.

The Silent Filibuster

In the 1970s, the Senate made a simple rule change that had profound consequences (this might be the unofficial motto of the Senate at this point). Previously, during a filibuster all other floor business came to a halt until the filibuster ended or could be resolved. Floor time is precious in the Senate, and obviously members were looking for a way to speed things up. They came up with the practice of dual-tracking.

If you have ever wondered why filibusters are common in the modern Senate, but talking filibusters are practically nonexistent, this is why.

Under dual-tracking, the Senate operates with multiple legislative “tracks.” If a particular bill is filibustered, the Senate can move on to other business rather than sit there and deal with it. In practice, this means that Senators no longer have to hold the floor to block legislation. It should go without saying that this made filibusters much more appealing. Around this same period of time, the Senate also modified cloture to only require a three-fifths vote (currently 60 senators) to end debate. This made cloture somewhat more achievable than it was before under the two-thirds rule, but still difficult. The 1970s also saw the birth of budget reconciliation, a practice that was initially meant to give the Senate a quick, filibuster-free way to make budgetary fixes, but has since evolved into yet another workaround. Thanks to reconciliation, certain strict taxing-and-spending matters (such as the recently passed COVID relief package) only require a simple majority, though the Senate can only do this a handful of times per session.

As American politics has grown more partisan, the temptation to filibuster everything the majority party proposes has only increased. By the beginning of the Obama Administration, it was clear that the de facto 60-vote rule had become the norm. Despite having between 59 to 60 votes during the 111th Congress, Democrats frequently struggled to translate their overwhelming majority into policy because of persistent Republican filibustering. And, of course, when Democrats were forced back into the minority several years later, they gave as good as they got. Cloture, which was once only needed sparingly, is now filed hundreds of times per session.

Two more important changes occurred in the 2010s. In 2013, frustrated by a Republican blockade of Obama’s lower court nominees, Senate Democrats changed cloture rules for these positions. At the risk of getting bogged down in procedural minutiae, I’ll try to briefly summarize the important bits in a few sentences. Generally, Senate rules may only be amended with a two-thirds vote. However, there is a separate Senate rule that allows a question of order to be raised at any time, and then decided by the presiding officer without debate. This decision can, in turn, be appealed by the Senate without debate. In plain English, this means that a simple majority of the Senate can challenge the existence of the 60-vote cloture threshold and effectively override it with only 51 votes, thus setting precedent going forward. Because it’s a rather drastic interpretation of Senate rules, this became known as the “nuclear option.” Republicans used the same procedure in 2017 to appoint Supreme Court justices with a simple majority.

As a consequence of these changes—as well as reconciliation rules—the Senate is in a strange spot. Lifetime judicial appointments and certain budgetary measure can be approved with only 51 votes, but all other legislative business requires 60.

Part 1 of 2

Here’s my first attempt at a response on this subreddit!

The filibuster did not begin in the U.S. as many might think. It originated in the Roman Republic, developed by Cato the Younger to obstruct legislation (Wilfried 48). This was first used in U.S. history in 1790 “...when senators from Virginia and South Carolina filibustered to prevent the location of the first Congress in Philadelphia” (Fisk et al. 187). However, it can be argued that the filibuster truly “began” in 1806 “...when the Senate accepted the advice of Aaron Burr and eliminated the “previous question” motion from its rules” (Emmet 468).

The “previous question” was a rule in the Senate that made it so that if the majority favored a certain course of action, that would end all debate and force a vote. Burr is called the “father of the filibuster” for this reason, although he did not do this for malicious reasons. Burr only wanted the “previous question” rule to be removed because he argued it was redundant. This was because it was only used once in the last four years. So he argued: “...that it could not be necessary, and all its purposes were certainly much better answered by the question of indefinite postponement.” (Adams 365), which the Senate inevitably agreed upon. So in a way, he "accidentally" allowed the filibuster to become a thing.

It was not until 1841 that actions like the modern filibuster would first take place. John Tyler attempted to pass the Whig legislative program during this year but was opposed by Democrats. It was here that the Democrats enacted the filibuster. According to Senator Thomas H. Benton's memoir, “We kept their measures upon the anvil, and hammered them continually; we impaled them against the wall, and stabbed them incessantly” (Fisk et al. 191). Henry Clay attempted to oppose this, but Democrats decided “...to resist its introduction and trample upon the rule if voted.” Although this attempt was unsuccessful, it set a precedent for other filibusters to follow.

In the same year, another filibuster was attempted to prevent the formation of a national bank, this one lasting for two weeks. In 1863, the act would finally be called the filibuster by Democratic Senator Lazarus Powell. Although the filibuster is not an “artifact of Jim Crow”, it was used repeatedly in the civil rights era by southern politicians to oppose bills targeting “...lynching, segregation, or the denial of voting rights to African-Americans.” (Magliocca 312-313). This would eventually change as southern senators “...wanted to avoid cloture reform, and so they refrained from filibustering anything else.” and liberals thought that “...they should not legitimize filibusters and therefore never joined one.” but after the passing of the Civil Rights Act and Voting Rights Act, the filibustering would continue. So the statement that the filibuster was an artifact of Jim Crow and white supremacy is false, althought it was used very often to obstruct legislation during the Civil Rights Era.

Works Cited:

Nippel, Wilfried. Public Order in Ancient Rome (Key Themes in Ancient History). Cambridge University Press, 1995. Google Books, books.google.com/books/about/Public_Order_in_Ancient_Rome.html?id=YkSCtairYG4C&source=kp_book_description.

Bondurant, Emmet. “The Senate Filibuster: The Politics Of Obstruction.” Harvard Journal on Legislation, vol. 48, no. 2, 2011. Harvard Law School Journal on Legislation, harvardjol.com/wp-content/uploads/sites/17/2013/10/Bondurant_Article1.pdf.

Adams, John Quincy, 1767-1848, and Charles Francis Adams. Memoirs of John Quincy Adams, Comprising Portions of His Diary From 1795 to 1848. Freeport, N.Y.: Books for Libraries Press, 1969.

Fisk, Catherine, and Erwin Chemerinsky. “The Filibuster.” Stanford Law Review, vol. 49, no. 2, 1997, pp. 181–254. JSTOR, www.jstor.org/stable/1229297. Accessed 12 Mar. 2021.

Magliocca, Gerard. “REFORMING THE FILIBUSTER.” Northwestern University School of Law, vol. 105, no. 1, 2010, pp. 312–13. Northwestern University Law Review, scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1185&context=nulr.