1964, without a doubt, marked a major turning point in the history of the filibuster as a procedural tactic in the United States Senate. Whereas, for the forty years preceding, it had been the sole means by which the chamber’s Southern contingent succeeded in staving off the passage of once piece of civil rights legislation after another, 1964 ushered in a new – if brief – era wherein the cloture motion entirely lost its opprobrium in the face of rigorous media scrutiny and a rapidly shifting national mood.
President John F. Kennedy (1917-1963) initially recommended the adoption of new federal civil rights legislation in the summer of 1963 in the aftermath of major protests – and an associated crackdown – that had occurred that spring in the city of Birmingham, Alabama. Seeking to expand upon the relatively anemic Civil Rights Act of 1957, Kennedy was supported and spurred along by the organizers and attendees of the March on Washington for Jobs and Freedom in August of that same year – among them activists like Bayard Rustin (1912-1987), John Lewis (1940-2020), James Farmer (1920-1999), and Dr. Martin Luther King Jr. (1929-1968) and labor leaders like A. Philip Randolph (1889-1979) and Walter Reuther (1907-1970) – and by October had begun the process of lining up support in the House. His assassination the following month did bring these efforts to a definite standstill as the nation paused to mourn the first death of a sitting President since 1945. But within a few days, in the form of an address to a joint session of Congress, the newly minted President Lyndon Johnson (1908-1973) called for them to swiftly resume. “No memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest possible passage of the civil rights bill for which he fought so long” said Johnson to his former colleagues in the House and the Senate. The gauntlet, effectively, had just been thrown down.
Public opinion began to shift decisively in favor of the bill as it began to make its way through the House of Representatives. Having been referred – as per procedure – to the Rules Committee in November of 1963, the draft legislation thereafter spent several months languishing under the influence of Chairman Howard W. Smith, a Virginia Democrat and staunch segregationist whose overt intention was to keep the measure from ever receiving a vote on the House floor. New York Democrat Emmanuel Celler (1888-1981) responded by filing a discharge petition in an attempt to force the bill to the floor, but such a maneuver required overall majority support to succeed, and by the beginning of the chamber’s winter recess the document was still fifty signatures short. There were those among the holdouts who definitely supported the civil rights bill – or who at least felt it ought to be given an up or down vote in the House – but many of them remained reluctant to take such aggressive action in its favor. Discharge petitions both were and remain very rare and are generally seen as a rebuke to the leadership of the majority party. Rather than risk embarrassing those with whom they would otherwise seek to curry favor, many Democrats accordingly opted to simply let the bill die quietly in committee. That is, until the House returned to its business in January of 1964. It had by then become clear to those wavering members of the majority that the American public had come to favor the bill as well. Not all of the public, to be sure, for there were still – and would remain – rabid segregationists in the South. But the more populous North wanted the bill to come to a vote. In the face of the potential usurpation of his leadership – for the petition now seemed almost certain to receive enough signatures to pass – Chairman Smith finally relented and allowed the draft bill to leave his committee and proceed to a vote on the House floor. It was thereafter passed on February 10th by a majority of 290 to 130.
Passage in the Senate, of course, was another matter entirely. Under normal circumstances, as in the House, the bill would at some point in its consideration be placed at the mercy of a committee chairman. And in the Senate, as in the House, there was no shortage of segregationist Southern Democrats in overall control of key committees. Majority Leader Mike Mansfield (1903-2001) managed to avoid a repeat of the drama in the lower chamber by way of some cunning procedural maneuvers – bypassing the scrutiny of Judiciary Chairman and Mississippi Democrat James Eastland (1904-1986) by essentially forgoing a second reading – but there still remained one essential means at the disposal of the chamber’s Southern contingent by which they could conceivably have held up the bill in perpetuity. That was, of course, the filibuster. When the civil rights bill arrived on the floor of the Senate on March 30th, 1964, Democrat and former Governor of Georgia Richard Russell (1897-1971) accordingly led a group of nineteen Senators – among them seventeen of Russell’s fellow Democrats and one Republican, John Tower (1925-1991) of Texas – in a bid to hold the floor continuously until such time as the offending legislation was withdrawn. “We will resist [,]” said Russell, “To the bitter end any measure or any movement which would tend to bring about social equality and intermingling and amalgamation of the races in our [Southern] states.”
For the next seventy-fours days, the obstructionists essentially held the Senate hostage in an attempt to force their colleagues to give up their support for the bill in question. The likes of Strom Thurmond (1902-2003), J. William Fulbright (1905-1995), and Sam Ervin (1896-1985) each took their turns. By day fifty-four, Senator Mansfield finally hit upon a potential solution. With the cooperation of his Republican opposite number, Illinois’s Everett Dirksen (1896-1969), the Majority Leader and his fellow Democratic supporters of the civil rights bill introduced a compromise draft somewhat weaker in its enforcement powers than that which had been passed by the House but not so weak that the House would need to take very long to reconsider it. As West Virginia Senator Robert Byrd (1917-2010) wound down the fourteen-hour oration which formed the bulk of his contribution to the filibuster on June 10th, 1964, Senator Dirksen then formally submitted a vote for cloture on the pending motion. When the votes were finally tallied – among them that of California Democrat Clair Engle (1911-1964), whose terminal illness prevented him from speaking and who accordingly pointed to his left eye to signal his affirmation – the ayes carried the day by a margin of 71 to 29. For only the second time since 1927, the Senate had voted in favor of cloture, and for the first time in its history it voted for cloture on a bill affecting civil rights. Nine days later, the full Senate approved the measure.
The national mood – and the Senate’s awareness of the same – had certainly helped to make this outcome possible. Not only had President Johnson succeeded in tying public perception of the bill to the legacy of the recently departed and much-beloved President Kennedy, but news coverage of the aforementioned filibuster also helped to focus public attention upon the intransigence of the Southern obstructionists and built up a wellspring of popular support for the bill. Of particular note was the coverage provided by CBS reporter Roger Mudd (1928-2021), who had previously anchored the network’s coverage of the aforementioned March on Washington. Every day for the length of the incident, Mudd updated the American television viewer on the ongoing state of affairs in the Senate, marking the comings and goings of the participants and interviewing Senators on all sides of the issue. As the filibuster neared its conclusion, the very nature of this coverage became a topic of conversation in turn. Writing for the New York Herald Tribune, journalist John Horn (1917-1993) observed at the time that Mudd’s, “Continued presence at the scene of Washington inaction has personalized and dramatized the halting process of our government to the average viewer in a way no amount of words or secondary reports could have.” Never before had a Senate filibuster been so closely scrutinized by such a large share of the population. Forced into a position of self-consciousness as a result of having to publicly defend their position whenever they left the Capitol and ran into some relentless reporter like Mudd, the Southern obstructionists steadily lost ground in terms of public relations and public support. Meanwhile, as the general mood of the nation turned steadily against the bill’s opponents, wavering Senators who might previously have hesitated to cut debate short came to realize that they no longer had anything to fear by voting for cloture.
As significant as these developments were, however, in consolidating popular support for further federal ani-discrimination laws, the failure of the filibuster of the Civil Rights Act of 1964 did not mark the death of the tactic as a whole. On the contrary, while the era in which the Senate’s Southern contingent had been able to consistently defeat federal civil rights laws by way of the filibuster was well and truly over, the next several years of American legislative history would nevertheless be defined by further attempts by Southern Senators to talk civil rights bills to death. In 1965, for example, when the Voting Rights Act was submitted to the scrutiny of the Senate on April 22nd – and after Majority Leader Mansfield once more ensured that Senator Eastland could not use his authority over the Judiciary Committee to kill the bill by inaction – Southern Senators spend over a month offering amendment after amendment in an attempt to weaken the legislation until the chamber finally voted for cloture on May 25th. The bill was approved by the Senate the following day by a margin of 77-19. Three years later, when the text of another civil rights bill came before the Senate in January of 1968, the result was yet another filibuster led by the same group of Southern obstructionists. Granted, in this particular case the fate of the legislation was tied up with more than just overcoming Southern recalcitrance. The mid-term elections of 1966 had brought a number of liberal Republicans into the Senate – perhaps most notable among them one Edward Brooke (1919-2015) of Massachusetts, the first Black Senator to serve since the 1881 – and the Republican caucus thereafter became split between those in favor of federal housing protections and those who felt that such an intervention by Congress into the conduct of private businesses represented an unconscionable federal overreach. Thanks to a great deal of public and private negotiation, however, the Republican votes necessary to invoke cloture and defeat the filibuster were ultimately secured on March 4th, albeit by the thinnest possible margin. One week later, on March 11th, 1968, the bill itself was approved by the Senate by a final tally of 71-20. For the third time in four years, filibuster had failed to serve its accustomed purpose.
Notwithstanding the irrelevance to which the events of the late 1960s seemed to have relegated the filibuster, the year 1970 witnessed yet another rules change that brought about its almost total rejuvenation. In large part, this rules change was the brainchild of the aforementioned Senator Mansfield, whose experience of successive filibusters led him seek some means of keeping the Senate’s schedule from being so frequently disrupted. The solution which he ultimately hit upon – and which remains extant to this day – was the adoption of the so-called “two track” system. Whereas, up to that point, only one piece of legislation could be considered by the Senate at any given time – the result of which was that a filibuster brought the business of the chamber to a halt – Mansfield’s reform would allow up to two pieces of legislation to be considered on any given day. Different portions of the daily schedule would be allocated to each of the relevant bills, the results of which – Mansfield claimed – would be a boon to both the supporters and detractors of a filibuster. Its opponents, on the one hand, would no longer be forced into the position of having to unexpectedly scrape together a two-thirds majority just to keep the chamber from becoming indefinitely bogged down. Faced with a sudden filibuster, they could simply decide to wait out the obstructionists while continuing to put in work on whatever bills came up in the second track. And on the other hand, the instigators of a filibuster would no longer be forced to hold the floor for every hour of the legislative day. For one half of the daily schedule, they would make their speeches, and read aloud their cookbooks, and do all that was in their power to prevent whatever bill it was they didn’t like from coming to the floor for a vote. And for the other half of the day, while a different piece of legislation was being debated in the upper chamber, they could rest, reconsider their strategy, shore up potential weaknesses, or seek desirable amendments. In either case, a two-track system would take pressure off of the membership of the Senate and allow its business to be transacted more smoothly.
Unsurprisingly – given that Mansfield tailored his proposal to appeal to both sides of the issue – the two-track system was ultimately adopted in the Senate by unanimous consent. From 1970 onward, no filibuster would again be able to effectively shut down the upper chamber until cloture was achieved or the affected bill was withdrawn. Filibusters could still happen – and would still remain a powerful tool in the hands of the minority – but they would no longer affect the daily business of the chamber in quite so dramatic a fashion as they once had. But while the purpose of this reform was most assuredly to make the filibuster somewhat less painful for the Senators involved – specifically within the political context of repeated clashes between a conservative, bipartisan minority and a reformist, bipartisan majority – its legacy has actually been one of facilitating obstructionism in the Senate rather than meaningfully reigning it in. The reasons for this, broadly speaking, are threefold.
First, the very nature of the various pieces of legislation which ultimately succeeded in breaking the back of the Southern, anti-civil rights filibuster augured tremendous changes in terms of ideology and composition for the political parties involved. Having been defeated – repeatedly and publicly – in their attempts to preserve racial segregation chiefly as the result of efforts made by more liberal members of their own party – thus forcing them to confront the fact that theirs was increasingly no longer the party of states rights and limited government – Southern Democrats began slowly but surely drifting into the Republican fold over the course of the latter 1960s and into the 1970s. The result was a realignment of the political divide that had characterized American political culture since the age of Andrew Jackson (1767-1845). Increasingly lacking a very large, influential, and conservative Southern wing, the Democratic Party became the largely unalloyed supporter of liberalism and liberal policy. And having become a mixture of small-government fiscal conservatives and small-government social conservatives, the Republican Party slotted itself into the role of opposing most significant expressions of federal power and supporting greater discretion on the part of the states. The central impetus for significant internal conflict among their respective memberships thus largely ameliorated – at least from the perspective of the turbulent 1960s – the two parties instead found themselves clashing more often with each other on most high-level issues. The filibuster – having been ostensibly robbed of its least desirable aspects – was ripe for deployment in these newly-energized clashes, and their frequency accordingly increased as the parties gradually settled into their newly consolidated personas.
The second reason why the 1970s witnessed the beginnings of a dramatic increase in the use of the filibuster – notwithstanding Senator Mansfield’s attempt to render the practice less disruptive – had to do with the moral significance of the “filibuster craze” of the mid-to-late 1960s. Whereas, over the course of the first half of the 20th century, the filibuster tended to be deployed quite sparingly, was almost always the result of Southern Senators seeking to defeat civil rights legislation, and almost always succeeded – all according to the aforementioned Southern strategy – the broader social and political circumstances surrounding the filibusters of the Civil Rights Era (1954-1968) helped to break any lingering taboos concerning either their frequent use or the invocation of cloture as a means of defeating them. On three notable occasions between 1964 and 1968, Southern Senators had attempted a filibuster in response to the immanent passage of civil rights legislation and on all three occasions they had failed. Not only did this surely rob the filibuster itself of whatever prestige with which the aforementioned Southerners had sought to imbue it, but it entirely de-stigmatized the notion of invoking cloture. From something which had been attempted very rarely and which succeeded even less often than that, cloture – like the filibuster itself – had simply become another useful tool in the Senate’s procedural toolbox.
The third reason for the proliferation of the filibuster that followed the adoption of the two-track system in 1970 is what one might simply call a matter of time. Unlike during the era of the “heroic” filibuster of the early 20th century – or during the interwar period when Southern-led anti-civil rights filibusters almost invariably succeeded – the Senate which emerged out of the New Deal, WWII, and the major domestic reforms of the 1960s had far more to do during any given session than had ever been the case at any previous point in American history. That is to say, a far larger swath of domestic policy now fell within the ambit of the United States Senate. But while the responsibilities of the Senate substantially expanded as the federal government took on an increasingly active role in the life of the average American citizen, the amount of time within which these responsibilities could feasibly be discharged could not be increased indefinitely. Senators, as a result, became more protective of their time and more sensitive to the notion of having it disrupted. The two-track system, in theory, would seem to present an obvious counterweight to this sense of urgency. The rules change may have made it much easier to sustain a time-wasting filibuster, but it also made it possible to essentially lay a filibuster to one side without defeating it. Senators who were especially keen on preventing a given bill from reaching the floor could do so without also delaying every other piece of business on the schedule. But what if, as this collective sense of urgency increased, Senators also became less cautious in their use of the filibuster? What if, as a result of both the de-stigmatization that had occurred over the course of the late 1960s and the creation of a mechanism by which the filibuster was ostensibly rendered less troublesome than ever before, Senators actually became more willing to filibuster any given piece of legislation? And what if an increased sense of partisan polarization also made members of both parties serving in the Senate feel as though they had no choice but to oppose their opponent’s agenda with a greater sense of ruthlessness than at any point since the Civil War?
The answer to all of these questions, of course, is that the present status of the filibuster would effectively be achieved. Beginning in the 1980s and 1990s and continuing – seemingly unabated – into the present day, Senators have collectively brought themselves to a place wherein filibusters are the norm and virtually every piece of legislation that comes to the floor will do so only once it has been guaranteed the support of a two-thirds majority. The reasons for this, as aforementioned, are threefold. In the midst of increasing partisan polarization, Senators now feel compelled to oppose any action on the part of their opponents that even vaguely appears to convey some manner of advantage. At the same time, Senators in the current era are far less judicious in their use of the filibuster than their forbears had been prior to the 1960s and are also far less concerned about the supposed moral implications of cutting off debate by imposing cloture. The adoption of the two-track system in 1970 is one of the primary causes of this particular development, though the defeat of several prominent filibusters between 1964 and 1968 made an important contribution as well. And finally, as the Senate’s responsibilities have expanded almost beyond what its calendar can reasonably accommodate, even the threat of a filibuster has become as good as one which is actually carried out. Senators have become so eager to avoid having a sudden and unexpected delay dropped into the middle of their collective schedule that they now refrain from introducing legislation at all unless they know that it has the support of a two-thirds majority. Gone are the cookbooks, the rambling monologues, and the trips to the Senate commissary; wannabe obstructionists need no longer even speak. All that they must do in order to get what they want – that is, to prevent a given bill from coming to the floor for a vote – is indicate, in so many words, that they would filibuster it if it did.
Of particular interest in terms of this latest development – though it might fairly be said of the entire concept of the filibuster – is the extent to which it seems to both gives rise to and stems from a kind of doublethink on the part of the membership of the Senate. The entire reason that the present version of the filibuster – what one might call the “stealth filibuster” or the “implicit filibuster” – has proven so successful and enduring is that most Senators – and certainly those in a position of leadership – perceive a sudden slowdown in the upper chamber’s business to be a very serious threat. Doubtless, this is due in large part to the punishment which they imagine they would receive on the part of their constituents if they were to allow the Senate’s legislative calendar to be unexpectedly disrupted by successive attempts at minority obstruction, but the mere fact of it is what matters just now rather than an examination of its cause. Senators, by and large, don’t want to have to vote for cloture. They want bills to be introduced, to debate them, and then to cast their votes. And they certainly don’t want to spend any more time actually on the Senate floor than is absolutely necessary. But while, in key moments of peak partisan desperation, the leadership of the upper chamber has consented to carve out a few exceptions to the two-thirds threshold for cloture – specifically when voting on cabinet appointments and on nominations to the federal courts – they have persistently refrained from simply doing away with the filibuster entirely. They could do so, without question, so long as their party holds a simple majority in the chamber. Provided that the President is also of their party, they could even accomplish the rules change with a Senate split evenly with their opponents. The fact that they do not is rather easily explained.
Senators, by and large, have divided feelings on the filibuster. This is not a particularly novel state of affairs – as the preceding narrative has sought to make clear – but it is both a persistent and significant one. When they are in the majority, Senators rail against the filibuster, calling it a mockery of the basic principles by which the American republic is supposed to function. But when these same Senators are in the minority, they cherish the filibuster, calling it a vital safeguard against the tyranny of the majority. They could, while in power, do away with it entirely, but they refrain from doing so because they know that this fact will change. Someday – owing to the ineffable churn of democratic politics – they will lose the favor of the American people and find themselves in the minority. And on that day, they don’t want to be in a position to curse themselves for dispensing with what has proven to be an extremely powerful tool in the hands of the minority party. They know that this benefits their opponents – that when they eventually return to the majority, they will curse themselves for every bill that their opponents defeat without a vote – but they still cannot bring themselves to make the all-important change.
Because the filibuster, by and large, is both the bane and the salvation of every serving Senator. Liberals – Democrats and Republicans, both – suffered at its hands over the course of the 1960s as they sought to advance a series of extremely consequential civil rights bills only to be stymied by so much reactionary hot air. They succeeded, in the end, but not without a good deal of struggle. And then, in the 1970s, the Senate’s liberals became the obstructionists. Over the course of that decade – particularly during the presidency of Richard M. Nixon (1913-1994) – liberal Senators filibustered against legislation which sought to advance American military involvement in Vietnam and which attempted to undo or roll back previous achievements in the field of civil rights. A number of conservative Southerners who had previously asserted – during the ascendency of their faction in the 1930s, 1940s, and 1950s – that voting for cloture under any circumstances was unacceptable notably found themselves doing exactly that for the first time in their careers during debate on a bill to extend the military draft in 1971. In that moment the filibuster, which had once been the cornerstone of their entire approach to legislation, became a headache to be dispended with. Such would seem to be the very nature of the thing. Senators have almost always held contradictory opinions as to the value of the filibuster. Sometimes they have called it an insult to the Senate’s dignity; a gesture of disrespect; legislative guerilla warfare. And at other times they have treated it with reverence; called it heroic; defended its existence as though their very lives depended on it. They’ve even taken to telling themselves stories about the filibuster and its purpose. It exists to protect the rights of the minority, they say. It serves to prevent the emergence of a tyrannical majority, they say. And while nearly all of them, at some point, suffered at its hands, hardly any of them openly countenanced its wholesale elimination. For the filibuster, they all seemed to have agreed, is as august a tradition as the upper house of Congress has ever known. To imagine the Senate without it is to imagine something other than the Senate.
None of this is true, of course, if the facts are any indication. The filibuster, as it currently exists, is more an accident than a particularly well-founded tradition. It is not grounded in the Constitution, notwithstanding claims to the contrary, and came into existence, piece by piece, over a period of almost two centuries. There was no guiding hand, only a series of tactical decisions. First, in 1806, the previous question rule was done away with. Not, it bears noting, in order to create space for the filibuster, but rather because the contemporary Senate leadership decided to take a respected comrade’s advice. Then, some forty years later in the midst of a period of extreme partisan rancor, certain Senators hit upon the concept of weaponizing debate. Without any means to force a bill to go to a vote, they reasoned, the majority could do nothing if a handful of determined Senators simply refused to yield the floor. Over the next several decades, the resulting tactic became increasingly formalized and gained a name. To go against the majority was to be a freebooter or a brigand, stubborn but admirable; selfish but heroic. Senators became filibusters. During the Progressive Era, the practice reached something of a sentimental peak, as Senators in favor of both reform and reaction took to it as the last means of making a public stand on matters of principle. And then, during the heightened circumstances which surrounded the American entry into WWI, the American public turned against it. The filibuster was forced to transform itself in order to survive.
But while this transformation now placed limits upon the ability of Senators to hold the floor indefinitely – thus seemingly weakening its effectiveness – the filibuster itself did not lose favor as a result. Southern conservatives in particular took the tactic to their hearts, building an entire strategy around it in their efforts to preserve the legality of racial discrimination. But though they met with unparalleled success for the next several decades between the 1920s and the 1950s, the 1960s heralded yet another transformation on the part of the Senate filibuster. Owing – not unlike during WWI – to shifting public sentiment and the actions of a particularly canny chief executive, filibusters undertaken with the aim of defeating civil rights legislation during the latter half of the 1960s all failed to achieve their common goal. In the immediate, this changed very little. Bills were filibustered and filibusters were defeated, only for the same thing to happen again. But then, in 1970, this brief churn elicited a response. In an attempt to stop filibusters from becoming quite so difficult both to sustain and to defeat, the contemporary leadership of the Senate enacted yet another fateful reform. A kind of “passing lane” was created whereby the filibuster was to be rendered harmless. A bill could be held up in the morning while another went to a vote after lunch. Obstructionists could take a breather. Everyone could get on with their work. Ideal though such an arrangement may have seemed at the time, however, the adoption of the “two track” system has arguably made the filibuster more of a headache than ever before. Now every bill of political consequence needs the support of a two-thirds majority to succeed. All but the most inoffensive bills are held back until their passage can be guaranteed. The Senate has become infamous for its inability to achieve results.
Bearing all of this in mind, it would seem fair to draw several conclusions. First – and this absolutely bears emphasizing – the filibuster is not the product of any single person or party. A decision created a loophole, the loophole gave way to a particular tactic, and the tactic evolved and became formalized. Important decisions were made by certain individuals at various points along with process, but no one could be said to be “the creator” of the filibuster. Not the Framers, not Thomas Hart Benton, not Woodrow Wilson, and not Mike Mansfield. Bearing this fact in mind, one would seem bound to further acknowledge the fact that the filibuster does not have a so-called “intended purpose.” As it was not created, whole cloth, by a particular person or group to serve a particular end or intention, it cannot be said to possess a singular, objective significance. Rather, it has served the needs of whomever was wielding it at the time. It is not the means by which the minority protects itself against majoritarian tyranny – except in the stories that Senators tell themselves – but rather the tool through which the minority seeks to frustrate the aims of their opponents. It is a tactic, not a hallowed tradition. And if it is just that – not a law, not a defining principle, but a species of strategic chicanery – then the filibuster can also be altered or abolished. It is, after all, just the product of a series of past decisions. For that reason, it can also be changed or eliminated as the result of future decisions. If a given Senate majority decides that the filibuster no longer serves a useful purpose, they will have as much right to do away with it as their various forbears had to create it. Indeed, they already have done, at least in part. As aforementioned recent political impasses have brought about the elimination of the filibuster in the contexts of both federal judicial nominees and executive department nominees. Doubtless, such an outcome would once have been considered inconceivable. But as it happened in those specific instances, the Senate leadership of the moment made a tactical decision. Only someone blind to the facts could conclude that the same will never happen again.
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