How long do you think you could do it if you had to do it? Well, if I were super, super dehydrated and had like a million blowpops, maybe ten hours. Because I've gone three hours straight talking at conferences and stuff, right? Yeah. So what would you talk about if you had to just fill those hours? Oh, I have so many monologues and poems memorized. I would just go through them all. And then I would do that pilot trick where like, I would say, in between. I think that after I got through Kublai Khan and the cremation of Sam McGee, I think it'd be kind of fun just sort of speak on any subject whatsoever. Just talking and talking in one long, incredibly unbroken sentence. Moving from topic to topic so that no one had the chance to pinter-project was really quite hypnotic. Would you like them in a house? Would you like them with a mouse? I am a nut on China. Gee! I do not like them in a house. I do not like them with a mouse. China, China, China, China, China. Five times. I would go for another 12 hours to try to break Stoneman's record, but I've discovered that there are some limits to filibustering, and I'm going to have to go take care of one of those in a few minutes here. You're listening to Civics 101. I'm Decapitice. I'm Hannah McCarthy. And today we are talking about a uniquely American institution, the filibuster. What it is, its history, how it has changed over the last 200 years, and finally, arguments for and against it. If you could save on car insurance, progressive casualty insurance company and affiliates, potential savings will vary, not available in all states or situations. Springs Blooming at Starbucks. A new season calls for new discoveries, like our iced uber vanilla matcha latte. Smooth, creamy and nutty, balanced with notes of vanilla. It's a treat for the eyes too, with vibrant lilac hues to brighten your spring mood. Hot or iced, there are so many ways to love this stunning serve. Uber vanilla, pouring now at Starbucks. Subject to availability while stocks last. Gotta get it out of the way first, Hannah. We've got a little content warning today. For the filibuster? For the filibuster. This episode acknowledges the existence of urine and the need of all humans to get it out of their system, sometimes using a bucket. I don't think you need that. Alright, so before we get into the history, let's remind everyone what the filibuster is in the modern era. How does it work? Alright, we'll get the basic part out of the way before we dive into the tangles, and there are so many little tangles. So real quickly, for a bill to pass in the House or the Senate, it needs a majority. Which in the Senate is 51 votes. Yes. But in that time, between a bill coming to the floor for a vote in the Senate and the vote itself, there is a period of deliberation and debate. And that liminal space is where the filibuster lives. The idea here is that the Senate lacks a way to cut off debate, sort of stop talking about something and move on to a final passage vote with a simple majority of senators. There's no way under the Senate's rules for that to happen. There's also, when someone is speaking on the floor of the Senate, no way to get them to stop talking. This is Molly Reynolds. My name is Molly Reynolds. I am the Vice President and Director of the Governance Studies Program at the Brookings Institution in Washington, DC. So a rule was created in 1917. I'll get more into it later. This rule though is called cloture. If a certain number of senators agree, debate is ended, that senator stops talking, and the bill comes to the floor for a vote. So two-thirds is the original threshold in 1917. The current version of the rule with three-fifths of the Senate chosen sworn. So it's three-fifths of the Senate's membership, which is actually kind of important, because it means that if you are in the majority and you're trying to invoke cloture, you actually need all 60 of your votes there. But if you're in the minority, there's not the same pressure to sort of show up and vote no every time you're trying to deny cloture motion. Wait, so the minority, the side doing the filibuster, they don't all need to be there, but the very hard to achieve supermajority wanting to stop the filibuster does. Yes, and this has led to a lot of theatrics over the years. You know that scene in Mr. Smith Goes to Washington where Jimmy Stewart is filibustering, and the room is pretty empty, and he calls for a quorum? Of course. Bring the call to the quorum. Call the quorum. No hurry, Mr. President. I got plenty of time. Quorum call! If a majority of the Senate isn't there in the room, a senator may call a quorum. Senate rules are that they do a roll call to make sure, and if the bodies aren't there, they, quote, may direct the sergeant at arms to request, and when necessary, to compel the attendance of the absent senators. What exactly does compel entail? Like, how far could that go? It's rare for it to get really physical, but it has happened. Republican Senator Bob Packwood was a dodge and quorum during a filibuster in the 1980s. He locked the doors of his office. The sergeant at arms unlocked it using a skeleton key. Then Packwood held his body against the door. The sergeant busted the door open, injuring Packwood's hand, and eventually a bandaged Packwood was carried in feet first to the Senate chamber. Did it work? Did cloture get invoked after he was dragged in there? No! Funnily enough, no. Cloture is really hard to enact. It only gets invoked about half of the time. And before we leave quorum, there's a story of a young state legislator who famously jumped out of the window to dodge quorum after they'd locked the chamber doors. Do you have any guesses who would do this, Hannah? I'm going to give you a hint. Reporters said he wasn't injured in the fall because, quote, his legs reached nearly from the window to the ground. Was it Abe Lincoln? Honest Abe! And apparently he did it again a few years later. Alright, so the filibuster is just a little bit odd. Notwithstanding the jumping out of windows, this idea that someone can stop legislation by talking and talking, where did that come from? Is it in the Constitution? So the filibuster was not, it's not in the Constitution, it was not part of the Founder's original vision for the Senate. The emergence of the filibuster was made possible in the early 19th century. When the Senate, it was actually a simple housekeeping matter, removed from its rules a provision that would allow a simple majority to end debate. This was not sort of purposeful or strategic. They were simply trying to streamline the rules. And so when they took out this option for ending debate with a simple majority, no one really thought that this is what was going to happen. This provision was removed at the behest of one Aaron Burr, who was the vice president in 1805, and he just thought it wasn't needed. He had no idea that it would evolve into the stickiest sticking point in the legislative process. Where does that word come from, by the way, filibuster? Yeah, it comes from the Dutch rebooter, which basically means freebooter, like a pirate. Wait, like a pirate? How like a pirate? Someone who plunders and robs with no regard to the law, just freebooting all over the place. And the practice of filibustering is old. So no other country does the filibuster the same way we do. They do have filibusters, but they operate differently. But this idea of stalling legislation by talking and talking, it goes back to ancient Rome. Cato would talk until the sun went down to infuriate Julius Caesar. But initially, in the United States, it was very rarely done. But then during the 19th century, filibusters started to become a regular feature of the Senate. It's a way for opponents of particular things that were on the Senate's agenda to try and engage in obstruction. First famous one was in 1837, the Whigs filibuster to prevent Andrew Jackson from expunging a censure. And then in 1841, there was a battle of filibusters on the topic of creating a national bank. Whig Senator Henry Clay moved to make a rule to end debate. And then Democratic Senator William King said he would filibuster that rule until the cows came home, and that Clay, quote, may make his arrangements at his boarding house for the entire winter, end quote. So filibustering had caught on. It had. And after half a century, we finally get some closure. In 1917, so the early 20th century, it sort of reached a point where you had a majority in the Senate with the backing of President Wilson, who were sufficiently frustrated by an obstinate minority that they adopted the first version of what we now call the cloture rule, which at that point allowed two-thirds of all senators present and voting to cut off debate on a pending measure. This is where cloture comes from. This is it. And initially it was two-thirds of the Senate, not three-fifths. Yeah. And again, chosen and sworn, they had to be there in the chamber. So it would have been 64 out of 96 senators, as we were only 48 states back then. Did they successfully invoke cloture to arm those ships? Nope. The first successful cloture wouldn't be invoked until a couple years later, 1919. Then this whole period from the 1920s leading up to the 1970s, it's sort of when the filibuster had its day in the sun. And it's not surprising that it is tied to one of the most contentious eras in U.S. history. This is Little Rock Central High School. Approximately two hours before the school is scheduled to open its doors for the fall semester. There are approximately 200 National Guardsmen. The Eisenhower sends 500 troops of the 101st Airborne Division of the United States Army to Little Rock by night. They are to keep order and to see that the law of the land is obeyed. By the way, if anyone wants to know more about Little Rock, Governor Fowbis, President Eisenhower and all that, we have got a link to our episode on federalism in the show notes. So in the wake of the court's ruling in Brown v. Topeka Board of Education, a group of Southern Democrats fervently opposed the desegregation of schools. And one of the most ardent opponents to desegregation was South Carolina Senator Strom Thurmond. In 1957, the Senate proposed a Civil Rights Act. This is the first civil rights act since 1875 to protect the voting rights of black Americans. Now, this bill was assured to pass, it had the votes, but Thurmond objected and filibustered the bill. Were there enough senators who were for the bill to invoke cloture? There were not. At this time, cloture needed 66 votes and they just didn't have them. So how long did he talk? Strom Thurmond talked for 24 hours and 18 minutes. How? Well, the guy prepped. This guy filibusters. He took steam baths leading up to it to dehydrate himself. There you go. You got to be dehydrated. And when he was in the third hour, Senator Barry Goldwater asked to interrupt the filibuster for a procedural diversion in which Thurmond ran out to use the bathroom real quick. After that, just in case, a bucket was reportedly kept in the cloakroom of the Senate, so Thurmond could technically hold the floor with one foot in the Senate and the other in the cloakroom. But apparently the bucket wasn't necessary. Okay. So he did not have to use the bathroom again, is what you're saying? No, he didn't. He didn't have to use the bucket. So what did he talk about? Well, after initially talking about why he opposed this bill, he went on to read the Declaration of Independence George Washington's letters, and in what might be the least clicked on link I've ever put in the show notes, I've got one down there for the full 88 page miniscule font transcript from the Congressional record. So I know you have to stay standing and you can drink water. Are there any other rules for filibustering? Technically, you're allowed to have water or milk, but honestly, the rules aren't really strictly enforced. Strom Thurmond was brought glasses of orange juice, and he munched on little pieces of cooked hamburger and eight malted milk drops. Also, senators slept on cots during his filibuster to avoid a call to quorum, and then a day later, a full day later, it was done. And the Civil Rights Act of 1957 was passed. It was. But this happened again. Southern Democrats joined up to filibuster the Civil Rights Act of 1964, stopping all business in the Senate for over 75 hours. So when did the big change happen from cloture requiring two thirds to three fifths? That would not happen until the 1970s. The current way that the rule works dates to 1975. And that's also about the point that we started to see the filibuster used really routinely. There's a longer, for more of American history, it was used more sparingly. In 1975, in part because in a separate rule change, the Senate also basically allowed for what we call dual tracking, which is the idea that more than one thing can be pending at once. It sort of reduced the cost of engaging in a filibuster because you weren't actually holding up all of the other business if you were demanding that the majority get to 60 votes. In the current moment, we don't really see senators actually have to go to the floor and hold the floor in order to engage in a filibuster. Wait, so if filibuster does not need someone talking anymore? No, not at all. Once the Senate agreed to this dual track procedure, you're not stopping the business of the Senate when you filibuster. So it's kind of pointless. So what happens now? We've gotten to a point where both sides see the kind of most effective way to navigate this tension is to have one side say, we're going to demand that you get 60 votes and the other side say, OK, we're going to try and get 60 votes. Either we're going to succeed or we're going to fail. And the demands on senators time has led us to a place where everyone feels like they're better off with a system where we expect the supermajority, but we don't actually force the filibustering senator or senators to hold the floor. OK, so let me make sure I have the new process. A bill is proposed in the Senate. Someone in the minority party threatens a filibuster, but they don't actually do it. Nope, they don't. If any senator wishes, they just tell the head of their party that they want to hold a bill. And is that public information? Do we know which senators are responsible for stopping particular bills? I do not know. It is usually anonymous. It is a silent filibuster. And once that happens, debate stops, consideration of the bill stops, and if there aren't 60 votes to pass cloture, the bill just kind of goes away. This is the norm now. We have gone from a few cloture invokings every year to hundreds. So why, Nick? Why do we continue to do it this way? Well, I'm going to lay out the arguments for and against the filibuster, as well as breaking down exactly how it can be changed if it gets changed, including the nuclear option. But first, we're taking a quick break. So food delivery services have been around for a while, and I've tried a lot of them, and I loved some, and I hated others. 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Just head to GreenChef.com slash 50 Civics, that's 50 C-I-V-I-C-S, and use code 50 Civics to get 50% off your first month, and then 20% off for two months with free shipping. Again, that is code 50 Civics at GreenChef.com slash 50 Civics. So you want to start a business. You might think you need a team of people and fancy text kills, but you don't. You just need GoDaddy Arrow. I'm Walton Goggins, and as an actor, I'm an expert in looking like I know what I'm doing. GoDaddy Arrow uses AI to create everything you need to grow a business. It'll make you a unique logo. It'll create a custom website. It'll write social posts for you and even set you up with a social media calendar. Get started at GoDaddy.com slash Arrow. That's GoDaddy.com slash A-I-R-O. Okay, Nick, so is there anything that cannot be filibustered, as in it is so important that it kind of dodges the whole thing? Yes, there is. There is one major kind of bill, a reconciliation bill. These are bills that change mandatory spending and revenues. Reconciliation bills are not subject to the filibuster. And our procedure-knowing friend, the Senate parliamentarian, is the one responsible for sniffing out those non-budgetary elements of a bill and having them removed before they continue. But there are other things that can't be filibustered, and these additions are relatively new. Here again is Molly Reynolds. We have seen over the full sweep of history a real kind of slow chipping away at the filibuster, and a couple of really pivotal points in this history came in first in 2013, when Democrats held the majority in the Senate, and they were sufficiently frustrated by sustained Republican obstruction over judicial nominees to the lower courts that they used the nuclear option to reduce the number of votes needed to end debate on judicial nominees to the district courts and the circuit courts. Can we just go over the term nuclear option? Where did that come from? Trent Lott, Mississippi Senator Trent Lott coined the term nuclear option in 2003. And here is how the nuclear option works. First, let me say again, there is nothing in the Constitution about the filibuster, pretty much anything we've talked about today. It is all in the rules of the Senate. So theoretically, the Senate could change those rules at any time. They could honestly eliminate the filibuster tomorrow if they wanted. How many votes does it take to change the rules, though? Two-thirds have to agree to do that, which is 66 votes. That's a lot. It is. But there is a workaround. A simple majority can raise a point of order and say, for this kind of bill or nomination, 51 means 60. And the presiding officer says, no, that's against the Senate rules. And the majority says, well, we're going to appeal that it's against the rules, and that appeal only needs a majority to win. And a new precedent is set. This is the nuclear option. And again, it was first used to confirm lower court appointees. Senate Democrats voted yesterday to change the rule that allowed Republicans to block presidential appointments. Senators will only be allowed to filibuster Supreme Court nominations. So that happened in 2013. And then in 2017, Republicans in the majority and wanting to confirm Neil Gorsuch to the Supreme Court made a similar change using a similar tactic. Senate Republicans have changed the way the chamber confirms Supreme Court nominees from the 60-vote threshold to a simple majority, saying they're going back to business as usual before Democrats started requiring that 60-vote threshold for judges years ago. Republicans insist the Democrats' effort to block the confirmation of Neil Gorsuch is all about payback. Democrats say Gorsuch is a nominee for a stolen Supreme Court seat, citing Republican refusal to consider then President Obama's choice last year. So one thing that happened this year, again, sort of working through this same basic setup of changes to the precedence is the Senate made it easier to confirm a whole bunch of nominees all at once. The overall story here about procedural change in the Senate is one of kind of tit for tat. So one party's in the majority wants to do something, gets really frustrated by the minority for long enough that then they're willing to change the way the Senate works to get the thing that they want. And Nick, the shutdown that we just got through this October, was that tied to a filibuster? It was because the shutdown was about an appropriations bill. And while they sound similar, appropriations bills, which are discretionary spending, not mandatory spending, are not the same as reconciliation bills. One really important thing that Congress does every year is pass appropriations bills. That's what funds large parts of the federal budget. Lots of really important services that Americans rely on, paychecks for active duty service members, scientific research funding, lots and lots of things that Americans associate with the federal government. To pass those bills in the Senate does require getting over that 60-vote threshold. You can filibuster appropriations bills. And so when we had the government shutdown starting on October 1st, and Democrats' position was for most of the shutdown, that they were not going to negotiate with Republicans, unless Republicans were willing to make a certain change to health insurance subsidies under the Affordable Care Act. So something that was sort of separate from the appropriations process itself. Republicans said, we're not going to do that. But on the short-term issue of the people with the subsidies, and that's going to expire at the end of the year, will you have a vote on the issue as you're 13 Republicans, frontline Republicans, people that are... You're the speaker because of them. Yes. They're in districts that are vulnerable. Sure. Will you have a vote so they can vote? The very people that you're reciting in the letter believe we have to have a real reform. So what I'm committed to and I have all along, this has never changed. And all of this, all of this, Hannah, led to the discussion that comes up every few years. What if, what if we just got rid of the whole thing? And so there was some pressure, honestly, from folks both on the right, so from President Trump. It's time for Republicans to do what they have to do, and that's terminate the filibuster. It's the only way you can do it. And if you don't terminate the filibuster, you'll be in bad shape. We won't pass any legislation. And there were a number of sort of Democrats on the left who would also like to see the filibuster go away, who said, you know what? Let's just do it. Let's just rip off the bandaid, get rid of the filibuster, have the government reopen with a simple majority of votes, eliminate the ability to filibuster these kinds of spending bills. That's in fact not what happened. President Trump has been sort of beating the drum on eliminating the filibuster since his first term. I think this is in large part because there are things that he would like to see Congress do that they can't do with the filibuster in place, even when Republicans control both the House and the Senate. I think on the Democratic side of the aisle, there are some folks who see the filibuster as really limiting what Democrats can do when they have unified control of Washington. And so they would also ultimately like to see it go away. I don't want to hear any Democrat clutching their pearls about the filibuster. We all ran on it. I ran on that in my... But there were enough senators sort of still in the middle who said, no, no, we don't want to change the way the Senate works. Certainly not worth changing the way the Senate works to do this particular thing. If we're going to make this change, it's got to be for something that's more important to us than just reopening the government. This brings me to my last question, Nick. Why do we still have it? I've heard the argument that the filibuster forces consensus. It makes people reach across the aisle to get something done. But here we are, as we so often say, in an era of hyperpolarization. There's not a lot of acquiescence to the other side. So what's stopping the Senate from ripping off the Band-Aid? I think the reason we still have the filibuster is because individual senators find it useful to their own sort of power and policy goals. So particularly if you are a more moderate member of the Senate, in the majority, having the filibuster allows you to sort of shift blame and say, you know, there are things that the more extreme members of my party want to do and we can't do them because the filibuster is in place. So let's say you're a senator who lives in a state and that state is really opposed to marijuana legalization. And the head of your party says, come on, buddy, you're going to vote for this. We're going to make it legal. And you know that you will get primaried in the next election if you vote yes on legalization because your state's against it. And the filibuster saves you here. You don't have to answer it, anybody. You just wash your hands of it and say, well, filibuster, nothing I can do. One thing that the filibuster creates is a scenario where you have parties that go out and campaign for election and say to voters, if you elect me, if you elect other members of my party, we're going to do X, Y and Z. They make these promises. And then they get into office and the filibuster is really limiting what they can do. And they can't deliver on to their voters in the same way that they said they would be able to when they were running for election. So it creates this sort of democratic legitimacy question. And it makes it harder for parties to actually do the things they have promised voters that they said they would do. Does Molly think we're stuck with it? I do think it's going to go away someday. I think the story of the filibuster over American history is that we're on a long, slow march to majority rule in the Senate. And it's a case of at some point in the future, a party is going to have unified control in Washington. There's going to be something it really wants to do that it can't do with the president, the filibuster. And that will be sort of the moment that it's willing to make a change. And we just haven't quite reached that point yet. Well, that is the filibuster. Wait, before we end, I've always wanted to do this. There's strange things done in the midnight sun by the men who moil for gold. Wait, what's the one you know that you have memorized? The winter evening settles down with smells of stakes and passageways. Six o'clock. Yours is much better. This episode was made by me and a capodiche with you, Hannah McCarthy. Thank you. Thank you. Our staff includes Rebecca Levoie, our executive producer, and Marina Henke, our producer. Music in this episode from Epidemic Sound, Blue Dot Sessions, Azira, and the musician loved by a super majority of podcast makers, Chris Zivrisky. Zivix 101 is a production of NHPR, New Hampshire Public Radio. Not all darkness is dangerous. Sometimes it's the doorway to becoming whole. On the brand new podcast, The Shadow Sessions, hosted by me, Hibbabal Fakhe, a psychologist and trauma expert, we shed light on the hidden corners of the human experience. Through raw, unfiltered conversations from the edge of healing, The Shadow Sessions invites you to do the deeper work that leads to real change. Follow The Shadow Sessions wherever you're listening now. Sometimes it feels like red and blue states are just as divergent as post-World War II, East and West Germany. So what can the US learn from German political history in order to create a more perfect union? Find out on the new season of The Future of Our Former Democracy, the Signal Award-winning podcast from more equitable democracy and large media, hosted by me, Colin Cole and Heather Villanueva. It's time to rethink democracy, so follow The Future of Our Former Democracy wherever you get your podcasts. Thank you.
