If you pay enough attention to such matters, you already know much of what follows. But as long as the will of the majority of Americans is being held hostage by the inability of Senate Democrats to get votes on many important matters, and as long as the filibuster question is constantly being willfully distorted by those who benefit from it, a few basics about the filibuster and its history are worth reviewing.
The filibuster rule was not intended nor foreseen by the sainted framers of the Constitution, nor is it, of course, written into the Constitution. There was no filibuster in the early years of the republic. There was, in fact, under Senate rules that applied when many Framers of the Constitution were actually serving in the Senate, a motion to cut off further debate and call a question to a vote in the U.S. Senate.
That motion could be and often was adopted by a simple majority vote. There were no filibusters and no demand for one as a way for the Senate minority to frustrate the will of the majority.
In 1806, during an overall updating of Senate rules, the rule allowing a motion to end debate and take a final vote was left out, apparently on the grounds that the rule was seldom if ever invoked. And, in fact, for another 30 years no one filibustered and no one noticed.
The first filibuster, as we now use the term to utilize endless non-debate “debate” to prevent a vote on a bill, occurred in 1837 on a minor matter. But the real birth of the filibuster occurred in 1841 when a minority of senators who opposed the chartering of a new national bank promised to continue debating indefinitely, forcing the majority to back down.
A Senate rule, allowing a two-thirds vote of the Senate to end debate and force a final vote on a bill, was adopted by an overwhelming, bipartisan 76-3 vote in 1917. Filibusters remained rare for several more decades, until the 1960s when they became a favorite tactic of southern senators to prevent final passage of civil rights bills. Filibusters remained relatively few until the hyper-partisanized 21st century, when they have become routine.
In 1975, the Senate lowered the threshold necessary to end debate and force a vote from two-thirds to three-fifths. Still the number of filibusters continues to climb.
(This link will show you the number of cloture votes taken by Senate session. It never exceeded seven in any two-year Senate session until the 1970s then rocketed upward, broke 100 for the first time in 2007-8, hit 298 in the last full Senate session ending in 2020, and is on track to break that record in the current session. The same link will show that, more than half of the time, cloture votes fail, which means the filibuster remains in effect and the underlying bill doesn’t advance to a final pass-or-fail vote.)
You could argue that it hardly matters whether bills come to a vote in the Senate, because of the Joe Manchin-Kyrsten Sinema barrier. But Manchin and Sinema have not come out against many of the bills in question. They have focused their reluctance on changing the filibuster rule to allow the bills to come to a vote at all.
We are talking about bills that, polls show, have substantial majority support in the country, have a House majority ready to pass them, a president anxious to sign them, but can’t them through the Senate because a senator from the 14th (Sinema) and a senator from the 40th (Manchin) most populous states are unwilling to vote to change a rule that allows a minority to prevent a bill from even from coming to a vote.
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