The Senate Filibuster & Democracy

By Alan Shapiro

To the Teacher:

Many Americans have become aware that "the world's greatest deliberative body," the U.S. Senate, has gradually been slowed to a crawl and, at times, to a complete halt. The Senate is frequently unable to pass legislation or approve appointments because of the filibuster: Passing virtually anything controversial--for instance, the recent health insurance bill--often takes 60 votes.

The introductory exercise below simulates a Senate filibuster to help students get a feel for this legislative-delaying device. The first student reading that follows discusses several ways in which the majority does not rule in the American system of government and examines the role of the filibuster in the Senate's recent lengthy stalemate over health insurance reform. The second reading considers the origins and development of the Senate filibuster and possible methods for reforming it. Discussion questions, writing and citizenship activities, and a reexamination of the outcome of the introductory simulation follow.

Introductory exercise:
A simulated Senate filibuster

In this exercise, the class will simulate the US Senate, debating an issue (a "bill") and voting on it (or, in this case, not voting on it). You might consider one of two issues to debate: 1) have the class consider changing one of the class rules or creating a new one, or 2) have the class consider one law they would want to pass if they were in the US Senate.

Unbeknownst to a majority of the students, you will instruct a cloture-proof minority of students (exactly two-fifths of the class plus one), to oppose closing debate on the issue. As a result, the measure will never come to a vote. You might either have a whispered caucus with these students before the debate begins, or give them written instructions that they are not to share with their classmates. Tell them that their instructions are to be kept a secret from the other students.

In your verbal or written message to the "filibustering" students, explain that in the class discussion, they must either remain silent about, or state their opposition to whatever rule change or new law the class is debating. Explain that at a certain point, you will call for a cloture vote (a vote to end debate) - and these students must vote against cloture and against ending the debate--thus killing the proposal.

Begin the discussion with the full class by having them decide on what class rule -- or piece of national legislation -- they agree is most important to pass. Facilitate the debate, and at a certain point, announce that you are going to call to end the debate and to vote on the issue. Explain that under Senate rules, there must be a three-fifths vote to end debate. This is called a "cloture" vote.

Your minority will (presumably) prevent the measure from ever coming to a vote.

After the class exercise is completed, tell students about the minority caucus. Explain that this is very similar to what happens in the Senate, when a minority of senators, usually from a particular party, agree in advance to prevent a bill from passing. Then ask students to assess their experience.

a. How worthwhile was the class discussion for you?
b. Were you satisfied with the class vote? Why or why not?
c. Do you think that the three-fifths requirement for cloture is fair? Why or why not?

Student Reading 1:
The majority rules?

In a democracy the majority rules, Americans agree. But in reality, it isn't necessarily so.

In four previous presidential elections--most recently in the 2000--the winner of the popular vote has lost the electoral vote and with it the presidency. In 2000, George W. Bush lost to Al Gore by more than a half million popular votes but won by five electoral votes and became president.

One hundred senators are in the US Senate--two from each of the fifty states. But consider these population figures from the last census in 2000:

Montana……......902,195
Nebraska….....1,711,263
Texas…….....20,851,820
California.......33,871,648

Montana's population is less than 5% that of Texas. Nebraska's is less than .5% of California's, but these four states all have the same number of senators.

However, in the House of Representatives, the number of a state's lawmakers is determined by the size of its population--that is, the majority rules. Montana has 1 representative, Nebraska 3, Texas 32, and California 53.

The Senate's 60-vote rule

For months Congress has debated the very important issue of health insurance reform. The House of Representatives passed a bill. But in what has often been called the "world's greatest deliberative body," the Senate, the deliberation was turtle-like.

Unlike the House, the Senate operates under a self-imposed rule of cloture, or a vote to end debate, that requires 60 votes. Traditionally, those who have wanted to block a bill would engage in a "filibuster"--nonstop floor speeches demonstrating that the "debate" continued. Today, Senate rules don't require a filibuster unless the Senate Majority Leader insists on one.

In the case of health insurance reform, the Senate's 40 Republicans were united, not only in opposition to the bill, but also even to a vote on it. It was crunch time, and the Democrats needed the votes of all 58 of their senators, as well as those of two Independents. With all 60 votes, the Democrats could get cloture and pass the legislation.

But the 60-vote rule made it possible for two Democratic senators, Max Baucus of Montana and Ben Nelson of Nebraska, to hold out for and get changes in the bill before they would agree to support it. For his vote, Senator Baucus demanded the elimination of a health insurance "public option." (This measure, strongly supported by many Democrats, would have allowed some people receiving government subsidies to buy health insurance to choose a government plan instead of only private plans.) For his part, Senator Nelson insisted that Medicaid expansion costs not be covered by taxpayers from his state of Nebraska. He also insisted that the bill to make it very difficult for low-income women to get insurance that would cover abortion. Several other Democrats and one Independent from small population states held out for smaller concessions.

Senator Baucus is chairman of the Senate Finance Committee. He has received more contributions from the health insurance industry,than any other member of the Senate (www.consumerwatchdog.org). Insurance companies opposed the public option because it would cost them customers and money. Senator Nelson's win means that Americans in every state but Nebraska will pay the Medicaid bill for their own states as well as for Nebraska--an extra $45 million during the next decade (www.politico.com).

If any one senator had held out for special concessions that the Democratic leadership and majority could not stomach, then the Republican filibuster in the Senate would have prevented passage of a health insurance reform bill. The majority would not have ruled, for a minority of just 40 Republican senators plus one Democrat or Independent could have blocked even a vote on a bill favored by an 18-vote majority.

The Nation magazine editorialized before the Senate vote: "This is not what democracy looks like….Yet this is where America, a nation often inclined to tell other nations how to practice democracy, finds itself as the debate about healthcare reform reaches its critical stage….We have a Senate in which a majority is ready to vote for what could be even better reform. Unfortunately, that majority is sidelined as a few wavering senators game the system." (12/14/09)

In a recent PBS interview, President Obama said that frequent filibusters like the one on healthcare results in "an inability to deal with big problems." "I'm frustrated," he said.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. In what ways does the majority not rule in the US? Do you know of any other ways than those mentioned in the reading?

3. Why are the representation rules for the Senate and the House different? If you don't know, how might you find out?

4. Were health insurance contributions to Senator Baucus responsible for the stand he took? How can you be sure? How would you explain Senator Nelson's motivation? If, in either case, you need more information, where would you look for it?

5. What is your reaction to The Nation editorial? To the president's reaction to filibusters?

Student Reading 2:
The rise of the 'filibustero'

The Oxford English Dictionary states that "filibuster" has Dutch, Spanish and French origins and derives from the Spanish word filibustero, literally freebooter. Freebooters were also called buccaneers, pirates or even obstructionists. "Filibuster" came into the English language in 1591, but its meaning was extended in 1890 to describe the tactic of talking as long as possible to obstruct Senate business. Filibustering senators were like pirates who obstructed public business.

In the entire 19th century, there were fewer than two dozen filibusters in the Senate. During the first eight years of President Franklin D. Roosevelt's administration (1933-1941), there were two filibusters--both of them led by white Southerners who succeeded in blocking anti-lynching legislation. White southerners continued this pattern of filibustering legislation aimed at ending segregation and discrimination until the 1960s, during the administration of President Lyndon Johnson. Even so, it wasn't until 2005 that the Senate voted to apologize for its treatment of African-Americans.

Under the presidencies of Jimmy Carter and Ronald Reagan, filibusters came to be seen as useful weapons on other issues, and they increased. "Filibusters are a necessary evil," argued Senator Robert Byrd of West Virginia, a Democrat, in 1988. "They must be tolerated lest the Senate lose its special strength and become a mere appendage to the House of Representatives."

"It was during the Clinton years that the dam broke," biographer Jean Edward Smith wrote in the New York Times. "In the 103rd Congress (1993-1994), 32 filibusters were employed to kill a variety of presidential initiatives ranging from campaign finance reform to grazing fees on federal land. Between 1999 and 2007, the number of Senate filibusters varied between 20 and 37 per session, a bipartisan effort….

"The routine use of the filibuster as a matter of everyday politics has transformed the Senate's legislative process from majority rule into minority tyranny," charges Smith. "Leaving party affiliation aside, it is now possible for the senators representing the 34 million people who live in the 21 least populous states--a little more than 11 percent of the nation's population - to nullify the wishes of the representatives of the remaining 88 percent of Americans….

"In the most recent Congress, 112 filibusters were mounted, and 51 were successful."
("Filibusters: The Senate's Self-Inflicted Wound," www.100days.blogs.nytimes.com, 3/1/09)

"Some people will say that it has always been this way," New York Times columnist Paul Krugman wrote, "and that we've managed so far. But it wasn't always like this. Yes, there were filibusters in the past--most notably by segregationists trying to block civil rights legislation. But the modern system in which the minority party uses the threat of a filibuster to block every bill it doesn't like is a recent creation." ("A Dangerous Dysfunction," New York Times, 12/21/09)

The first successful effort to weaken filibuster power came in 1917 when the Senate agreed to cloture (the closing off of debate) if two-thirds of the senators agreed. In 1975, following years of difficulties with cloture, the Senate amended this rule to allow three fifths of that body to impose cloture, the regulation in force today.

Krugman wrote that a political scientist, Barbara Sinclair, found that in the 1960s, threatened or actual filibusters affected 8 percent of the most important legislation. That figure rose to 27 percent in the 1980s and to 70 percent by 2006. Krugman warned that "the Senate--and, therefore, the US government as a whole--has become ominously dysfunctional."

Senator Tom Harkin, an Iowa Democrat, is one lawmaker who was fed up years ago with endless debate by a minority who prevent Senate action. In 1995, as a freshman senator, he introduced legislation that would have ended filibusters. But the Senate voted it down 76-19.

More recently, commenting on the protracted healthcare debate, Harkin said, "I think there's a reason for slowing things down ... and getting the public aware of what's happening and maybe even to change public sentiment, but not to just absolutely stop something….

"I did a lot of research on this back in the '90s, and it turned out the filibuster is just a Senate rule, not the Constitution or anything like that," Harkin said. "The reason, as best as I can ascertain it from historians that I talked to, Senate historians, was that it came into being when the Senate ... would meet and they would pass a bill before other senators could get there." The rule allowed lawmakers to hold up the bill until more senators were there to vote on it or until the public became more aware of the proposed legislation.

"Today, in the age of instant news and internet and rapid travel -- you can get from anywhere to here within a day or a few hours -- the initial reasons for the filibuster kind of fall by the wayside, and now it's got into an abusive situation," Harkin said.

Harkin's proposal 15 years ago would have kept the three-fifths, or 60-vote, rule for the first vote but reduce the number of votes required after that. After a week or so of a filibuster, cloture would require three votes fewer. If that failed, the number of votes required would continue to be reduced until it reached a simple majority of 51.

"You could hold something up for maybe a month, but then, finally you'd come down to 51 votes and a majority would be able to pass," Harkin said. "I may revive that." (Christina Crippes, "Harkin Considers Raising Bill to End Filibuster," (www.thehawkeye.com/story/harkin-filibuster-121209, 12/12/09)

If the senator does reintroduce that filibuster-busting legislation, it will almost certainly be filibustered. But a 2005 Congressional Service report suggested several ways to abolish the filibuster, in addition to the process Harkin proposed. For instance, senators could act on the Senate rule that authorizes rule changes on the first day of a new session by a majority vote of 51.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What is a filibuster? Cloture? What makes both possible in the Senate but not the House?

3. How did white Southern senators use the filibuster? With how much success?

4. Why does Senator Byrd support filibusters?

5. What is Paul Krugman's view of the upsurge of filibusters? Why does he think they are used differently today than in the past?

6. Why is it so difficult to curb filibusters? How does Senator Harkin think it might be accomplished? What other approach is possible?

7. Why do you think the Senate opposed the Harkin proposal and has never supported a rules change on the first day of a new session? If you don't know, how might you find out?

For writing and citizenship

1. Assignment: Ask each student to write an email to his or her two senators about the class study of filibusters. What conclusions has the student reached about them? Why? What is each senator's view of the effect of filibusters on Senate's work? What, if anything do the senators think needs to be done?

2. Divide the class into groups of three or four students. Ask each student to read their letter to the others in the group. Then have each group decide on which letter is best.

3. Reconvene the full class, and ask each group to read the letter it has selected, and send those to the senators.

4. Alternatives: You might have all students send their letters. Or you might ask the class to reach a consensus on one letter they want to send, which would then be signed by everyone.

On the class rule

Consider returning to the introductory exercise. Might it be worth a second discussion and a democratic decision on changing a class rule, or supporting a certain piece of national legislation?

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at his new email address: lnshapiro07@gmail.com

Back to top