What is a Filibuster?

Liam Heffernan: 00:00:01

Have you ever heard of the saying, if you can't say anything constructive, don't say anything at all? Well, this doesn't seem to apply to politicians, as this week we're talking about one of the most bizarre and long winded practices in government.

What it is, how they started, and why they're still a thing. As I ask, what is a filibuster? Welcome to America A History Podcast.

I'm Niamh Heffernan and every week we answer a different question to understand the people, the places, and the events that make the USA what it is today.

To discuss this, I am joined by a professor of political science at the University of Miami who specializes in legislative politics and political parties.

His book Filibustering A Political History of Obstruction in the House and Senate is available to buy right now and we'll link to that in the show notes as well. A big welcome to the podcast, Gregory Koja.

Gregory Koger: 00:01:12

Thank you for having me.

Liam Heffernan: 00:01:14

Thank you, Gregory. It's wonderful to have you on the podcast.

I was going to say it was obvious to have you on the podcast, but, you know, you're in a small club of people who are interested enough in filibusters to write a whole book on it.

Gregory Koger: 00:01:26

Well, it's been my life's pleasure.

I've always found it fascinating to understand how legislators change the rules or keep in place rules that allow a majority to be defeated by a minority and then the fights that they've had over the years. While filibustering are just some of the more fascinating episodes of American congressional history.

Liam Heffernan: 00:01:50

Yeah, I mean, the more I've dug into this when researching this episode, the more fascinated I am with them. So I'm just hoping we could start with you giving us some sort of clear definition of what a filibuster is, or at least what it's supposed to be.

Gregory Koger: 00:02:08

Let me start with this. A filibuster is a strategic use of delay in a parliamentary setting.

So anytime you've got somebody who's trying to slow down the decision making process to try to maybe block something or to extract some concession from the majority, then that is a filibuster.

And so one of the moves I make in my book is to try to develop like a general understanding of what filibustering is, that it's not tied to any particular tactic, because from place to place, from time to time, filibuster legislators use lots of different methods to filibuster, but the underlying intent is what makes it obstruction, with the intent of gaining something from the majority so how.

Liam Heffernan: 00:02:54

Does someone go about invoking a filibuster?

Gregory Koger: 00:02:58

Most filibustering takes the form of the extraordinary use of ordinary legislative rights. So an ordinary legislator is allowed to speak, to make motions, and they might not have to be in the chamber at any given time.

Maybe they have to go home, maybe they have to go to the bathroom. And legislators start to filibuster when they begin to use these ordinary rights in extraordinary ways. So everybody's got a right to speak.

But what if they speak for 24 hours or 48 hours straight? Well, then they're actually slowing it down.

And if they're followed by a teammate who's then giving another 24 hour speech and so on and so forth, or they make a motion that requires a vote and then another motion and then another motion, things that by themselves are perfectly normal, but they're used in such volume, perhaps, or in such a way that they slow down the process. So that's, that's the abstract answer.

If you're talking about the United States Senate, then we switch to a game where they're used to doing this and they've become so accustomed to it that it's just routine.

And one starts to filibuster by notifying the leader of your party, hey, I don't want to give up any of my floor rights for that, for a particular nomination or bill.

That means please don't shorten the amount of time that is available for that bill or keep me from offering any amendments that I might want to offer. And in the modern Senate parlance, that is equivalent to threatening a filibuster. But it's done in the early stages.

It's usually done behind closed doors. You're just communicating something to your party leader who won't tell the rest of the Senate necessarily who's making that threat.

Liam Heffernan: 00:04:49

So I guess it's just a way to ensure that people from your own party aren't going to step in and kind of inadvertently block you from filibustering something.

Gregory Koger: 00:04:59

Right, that's right. That's right.

So in the absence, so in the state of nature, in the absence of any sort of agreement, Senators have these extraordinary rights to speak as much as they want, to offer as many amendments as they want on each. Anything they want. And the way the Senate normally works is they give away some of those rights.

So the chamber can actually move towards a decision on something.

So if the Senate wanted to bring up, let's say, just like an ordinary appropriations bill to provide funds for, I don't know, the Department of education. The majority leader could bring that to the floor at any time. But in theory, then anybody could speak on that bill for, for days.

And in theory, they could offer any amendment they wanted.

And so usually the majority doesn't want to proceed with that sort of open debate, open ended debate, because it could take, as, you know, take a very long time and expose the members of the Senate to a lot of amendments that they don't want to vote on.

So what happens 99.9% of the time is that a majority leader will usually try to get a unanimous agreement among all the senators that they will give up a lot of those rights so they can actually make progress on a piece of legislation. And that is called obviously unanimous consent agreement.

So the beginning stage of a filibuster is again, communicating to a leader, I don't want to give up any of my rights even. It would mean making progress on this bill that we, you know, that many other people might think is a good idea.

Instead, I want to block it until I'm satisfied or I want to block it until it's dead.

Liam Heffernan: 00:06:43

So is there any limit to how long someone can actually talk, like uninterrupted floor on the floor or, or is it literally for as long as they're willing to talk?

Gregory Koger: 00:06:57

There's no procedural limit. There is the limit of human, just, just human bodies.

Like how long could you actually stand in one place or you know, stand up and talk without having to go to the bathroom? So the longest Senate speech was 24 hours and 18 minutes. And that was with a surreptitious body bathroom break.

I've read in other legislatures of filibusters going as long as three days, but I don't know exactly what, you know, how strictly the standing and the no bathroom was enforced in that case. But it's just, it's the limit of human endurance in the US Senate that keeps somebody from speaking literally forever.

Liam Heffernan: 00:07:43

So literally, as soon as you walk away from the floor, like to go to the bathroom or if you needed water or something like, that's it, it's over.

Gregory Koger: 00:07:54

That's right.

Liam Heffernan: 00:07:54

And is there any other way that it can be stopped?

Gregory Koger: 00:07:58

f course, of course. So since: 1917

ried over the years. So since: 1975

And you know, and the Senate rule lays out a whole process for how you can do this. You gotta get 16 signatures, put it on a piece of paper, file it, wait two days, then you can vote. And then there's 30 hours of debate afterwards.

So that's a normal courtship process.

Liam Heffernan: 00:08:46

So even with that process, that still allows for what, three days? Ish.

Gregory Koger: 00:08:55

Well, that depends on two things. One is just how forceful the majority is willing to be.

And if any members of the majority, if members of the majority party request their time or not, for example, there could be 30 hours of debate time, but that could be 30 consecutive hours. So you start at noon on one day and it's 6pm the next day. If you're willing to go all night, keep this, keep the Senate open all night.

And then there's a question like how that debate time gets divided. So the, maybe they start out by dividing the 30 hours between the two parties and then nobody in the majority party wants to speak.

So it's just a 15 hour filibuster after the cloture has been approved.

Liam Heffernan: 00:09:43

The one thing that isn't quite clear to me from all this is regardless of how long someone speaks for or how however long the filibuster goes on, what stops that same thing just being discussed or passed by the majority after someone's done doing their filibustering?

Gregory Koger: 00:10:02

Well, so what my book gets into is how for most of Senate history, that was the answer. And what's changed is how much senators value their own personal time and how much they value the time of the chamber.

,: 1935

But he's, he's trying to make a nuisance of himself so that President Roosevelt will give in. And so he just stands up and starts talking. And the other senators, they've seen this act before and they're really frustrated with him.

So they say, dude, we're just gonna watch and we're not going to let you take a break for the bathroom or read anything. You're just gonna have to talk until you fall down.

And he did, you know, he made it like 15 hours, but at the end he just like shrugged and sat down and then they passed the bill. They were going to pass anyway. And this was the traditional answer, right?

If you just wait someone out, if you have the time and you Just wait them out. Then they're gonna feel stupid. They've wasted everybody else's time.

And so like the other senators will, will resent them for it and their own constituents and the media will think they're kind of stupid for wasting the Senate's time this way and they won't get anything from it.

And during the, the, the time when the senators could afford to wait out that sort of behavior, then other senators would say, well, I'm not going to do that because I won't get anything from it. And so it was fairly rare.

It's only, you know, by the: 1950

And so they can't afford to just wait a couple weeks for Senator so. And so to, to figure out that he can't win it.

Liam Heffernan: 00:12:18

It seems odd to me though that besides the threat of some personal shame in kind of wasting yours and everyone else's time, there's no like formal controls around the filibuster. Like why, why is that? It just feels like a really obstructive thing to do that doesn't really benefit anyone.

Gregory Koger: 00:12:38

So let me back up. So the filibustering is the unusual use of ordinary rights. Very rarely do legislators actually sit down and say, let's create a right to filibuster.

The, I will say the Korean assembly recently did. They actually just said, you know, it might be better for us to have a super majority requirement to pass legislation. But normally they don't.

Normally legislators don't. They don't. They don't. They just.

Situations arise where somebody starts to filibuster and the other senator, the other legislators just don't stop them for a variety of reasons. And you know, I'm trying to be a political scientist, so I normally don't take sides on whether I think filibustering is good or bad.

But the, the things that senators or legislators say when they're trying to defend the filibuster do kind of hit home. One is it can be a way just to preserve the right to deliberate. You know, I also studied the US House of Representatives and it's short version.

ce night something. Since the: 1890

And they nowadays they rarely allow a real debate on bills. You know, they don't let legislators offer amendments on the floor.

They don't allow more than say a couple hours or three hours of general conversation about even the most major legislation.

They're just like, hey, we're ready to pass this thing and we don't want to waste our time or you know, suffer any political grief, so we're just going to do it.

And what senators have told themselves and the world for a while is since that's the way the House works, we should have at least to have one chamber where there is open debate and deliberation and the minority has a chance to offer amendments. Now I will go on and say that the modern Senate doesn't actually work like that. And so that argument is kind of weak.

It just over the last like 15 years, but for, you know, but for a good hundred years that was a fairly decent justification. And the other one of there's lots of other arguments, but the other one that I think has some merit to it. Two others that have some merit to it.

One is in the abstract it can make sense to allow a minority to block legislation when that minority is affected much more than the majority that's winning. So I'm left handed. So I use a lot of left hand examples in class.

If Congress was going to take all the left handed people and you know, seize their property for the state and put us all on an island, I would want the left handed legislators to be able to filibuster because you know, our loss would be so much bigger than the right handed people's gains.

And there are a lot of situations like, like that in the real world where the losers are affected much more deeply and profoundly than the winners are winning. And a filibuster is a way to sort of incorporate that, that intense loss into the process.

Liam Heffernan: 00:15:52

I mean, as a fellow lefty, I can relate to the example you used entirely.

But it strikes me as concerning a little bit that politicians can't consider both sides of an argument and make an informed decision based on the, the overall kind of weight of something that's being discussed in that it's just sort of a majority versus minority game, which is kind of what it's coming across like. And it feels like filibuster shouldn't be needed if everyone just considered things properly.

Gregory Koger: 00:16:27

Properly is a word that's doing a lot of work there.

er and this goes Back to like: 1915

And that is that filibustering in practice allows the minority party to block a majority party that itself does not sincerely support the legislation that they are trying to pass. And, you know, American political parties are constructed as coalitions. They're, they're, they're pre electoral coalitions. Right.

So there's, there's lots of different groups, both regionally or interest groups, if you want to think of it that way, or segments of the population that go into the Democratic Party and the same on the Republican side.

And what can happen in a political party structured that way is, you know, one group, say an interest group, can say to the party that, that it is allied with, hey, this is with the legislation that you need to pass, or else you will be a. Will try to replace you in the primaries or we'll withdraw our support in the next election. And I don't care that it's unpopular.

I don't care that it adversely affects a lot of your constituencies. You have to do this or else there will be real electoral consequences.

And so for the members of the majority party, that is an intense conflict going on within their political calculations. I mean, there's some group to which they're beholden or, you know, don't want to fight in their next party primary.

And on the other hand, passing that legislation would be bad for the, let's say, for them personally or for the national reputation of their party. And so they're kind of stuck.

And the filibuster has often been defended as a way out of that situation, that what the minority party is doing when they're filibustering these, you know, sort of bad ideas coming out of the majority party is they are saving the majority party from its worst self from pandering to a subset of the party that is pressuring the party to do something that is not in the national interest and, or in the interest of the, the overall party.

Liam Heffernan: 00:18:44

Yeah. And all of those arguments that you've just given feel very rational.

However, US Government, I think it's in a particular place right now where I'm not sure it's really lauded for being that compromising. And both sides aren't exactly willing to reach across the aisle very much.

So is there not a risk that when you have a tool like the filibuster available, that if one party's bill gets blocked because the others filibuster it, that it just ends up in this kind of game of Ping pong where they're both petulantly filibustering each other's bills.

Gregory Koger: 00:19:23

Yes, there is a risk and I'd say that's where we are. I mean, it's one thing when you have a minority party that says, all right, we have worked constructively with you on 9/10 of your agenda.

This 10th bill is like bad for us and let's be honest, bad for America. And so we're going to save you by blocking it like that. Those were the old days, but that's not where we are now.

Now we are in a situation where the Americans and especially organized groups are fairly, are intensely aware that it's possible to filibuster in the senate. And so they have an expectation the minority party will block everything that can be blocked.

And senators themselves are frustrated by the inertia that they have experienced in the past. And so they're not in a giving mood.

And so now it is just like everything is blocked intensely all the time and there isn't much of a consequence for the minority party for doing this.

And so as much as, as much as, you know, senators might still remember the day when filibustering was a good way to promote, promote deliberation to prevent the majority party from doing something that was not in the national interest. We're past that point.

And now it's just every piece of legislation faces opposition that is so intense that is impossible to pass if it is subject to a filibuster. The only exceptions really are legislation that can't be filibustered at all, such as budgetary legislation in, in the u. S.

Senate or legislation that is just so necessary to pass by cert by a time certain that senators, the individual senators can be convinced to allow it to pass. And that would be just like ordinary spending bills or maybe like responding to a disaster.

If Canada were to invade, a declaration of war would probably pass the congress, you know, reasonably quickly, but just ordinary legislation to, you know, improve say, the farm policies of the United States.

It's really hard to get through the senate because it's hard to get 100 people to agree on the bill itself, on all the other things that they want to bring up, but they can't. And so just the negotiations to bring a piece of legislation to the floor usually bogged down at some point.

They can't get around that and they need a more streamlined process, but they can't do that either.

Liam Heffernan: 00:22:00

It feels like for the next four years at least, the Democrats, because they've lost control of Both Houses. And they really don't have an awful lot of power at the moment at all. The filibuster is kind of their saving grace right now.

Gregory Koger: 00:22:16

It is, but it's not as valuable to Democrats as it is to Republicans. And here's where we get to the fact that they're different coalitions and the two parties emphasize different branches of government.

Republicans are very much, they're geared towards executive action. They like a president who just shows up and you know, signs a bunch of executive orders.

And they like having the judiciary, especially supreme, the US Supreme Court stands, act with like minded individuals.

And for Republican members of Congress, then if Congress doesn't do anything, that's basically fine because a lot of their policy goals are being achieved by the executive branch and the judicial branch.

The only thing that they need Congress for is to lower tax rates and that they can do with through budgetary legislation which requires simple majorities in the House and Senate. So the filibuster doesn't affect them as much as it affects Democrats because Democrats are very much a legislative party.

What they want to do is get into power. And sure it's, you know, they want the White House.

That's because that there's lots of policy benefits to having a president who can issue executive orders.

But what they really want to do is pass legislation that transforms sections of a public policy and expands new areas of say, social, social benefits. And they can't do that through the courts and they can't do it through the executive branch.

They need Congress to proactively make progress on the Democratic agenda. And so for them, the filibuster is much more costly than it is for the Republicans.

Liam Heffernan: 00:24:01

And I guess just to wrap a little bit of history around everything we've, that we've discussed, when did the filibuster really start being used?

And, and sort of following on from that, are there any particularly famous examples of how they've been used either very effectively or very ineffectively?

Gregory Koger: 00:24:21

Okay, let's start with the win.

What my book does is it actually traces the history of filibustering in the House and Senate and it finds that the first congressional filibusters were in the House.

Leading up to the War of: 1812

It's, it's a filibuster over bridge that Congress was Passing a bill to, you know, create a corporation that could build a bridge over the Potomac, except to repair a bridge over the Potomac. Except as they were bringing. Coming. As the bill was coming up in the Senate, the. The bridge had actually washed away. So there's nothing to repair.

And I don't know why they didn't just vote it down. But. But some senators took upon themselves to filibuster that legislation. And that is what first shows up in the record first.

, in the House is that by the: 1880

Republican party, elected in: 1889

ow it begins to emerge in the: 1960

And this is the point where it's not so much a rules change as a change in the way the majorities respond to filibusters.

They stop asking legislators to actually consume time on the floor of the Senate because time is more valuable to individual senators and to the chamber than to the people who are willing to filibuster.

And so realizing that they'll never win one of these fights, they just say, all right, fine, let's accept the fact that you're probably going to win and instead will just go straight to filing a cloture vote.

And that's how you get the modern Senate, where senators just have to threaten, and then the majority party's choice is to concede, to negotiate, or see if they have enough votes for cloture. All right? Especially successful or unsuccessful filibusters.

a good place to start is the: 1964

But in terms of filibustering, one of the reasons that it had been very difficult to break a filibuster up to that point is that a lot of senators were in the back of their minds thinking about what they would say or what they would do if there was a major civil rights bill and they had decided on cloture.

So a lot of, a lot of times Southern senators wouldn't filibuster things they didn't like because they didn't want to create momentum for filibuster reform. And a lot of, you know, a lot of more conservative senators from outside the south wouldn't vote for cloture because they didn't want to be in a put.

his finally came to a Head in: 1964

What the Civil rights advocates in the Senate decided to do was to put the bill on the floor and just keep it there until they can get enough senators to vote for cloture. They're not going to try to exhaust anybody because they would lose that fight. Right. So it's not 24 hour sessions, it's just.

All right, Southern senators, why don't you say what you want to say against this bill? Oh, but what's different is you're not just going to get 10 hours of free floor time where you can, you know, express your talking points.

When you say things that we consider to be untrue, we're going to challenge you on the floor of the Senate, like, argue back.

So when senator Southerners would stand up and say, look, there's no problem in the south, we're treating each other just fine, the civil rights advocates would stand up and say, actually, that's a lie. I mean, they wouldn't use a lot the word lie, but like, let me inform you about what's actually going on in your state.

You know, there was this bus full of civil rights activists that were. The bus was turned on its side and set on fire. So actually, no, it's not a peaceful situation in the South.

But underlying this was the commitment of civil rights senators to just keep the pill on the floor forever until every other senator had to say, all right, we can't make this go away except by actually voting for cloture. And long story short, that they eventually got a super majority to vote for cloture on a civil rights bill for the first time ever.

And that's how you got his historic piece of legislation. But just the, the length of it, the length of it was extraordinary.

The tactics were this interesting turning point of like, we're not going to try to exhaust you, but we are going to put the bill on the floor forever just to dramatize that this is a major piece of legislation. We are not going anywhere until it passes. I'll stop there. But, like, I mean, there's, there's, there's innumerable stories, but.

But that, I think, is one of the most important fights in congressional history.

Liam Heffernan: 00:30:17

Yeah, that's an incredible story. And I'm wondering, kind of on the other end of that spectrum, have there been any particularly kind of bizarre filibusters or.

Because it feels like the very nature of it kind of opens up the opportunity for some fairly odd scenarios to present themselves.

Gregory Koger: 00:30:36

Bizarre filibusters, just off the top of my head.

So in: 1988

But the majority leader at the time, Harry Bird of West Virginia says, I'm sorry, Robert Byrd of West Virginia decides, well, let's just, let's just try to drag out the floor fight at least, and at least make it look like we're trying and run continuous sessions.

And the Republicans responded by trying to break a quorum, that is to make sure that there's less than a simple majority of the Senate available for business, by not being on the floor, but also by hiding from the sergeant at arms so that Robert Byrd can't send the sergeant at arms to round them up and bring them to the floor and provide a quorum. So in particular, one senator from Oregon, Robert Packwood, was hiding in his, in his office, and the sergeant arms came, knocked on the door.

He's not here. Seriously, open the door. And, and, and then they tried to, like, push the door in, and Bird is on the other.

Packwood's on the other side of the door, like, pushing back.

And reportedly what happened then is he, Paul Pocketbook got shoved aside and, and hurt his arm, like, maybe broke it, and then went to the floor of the Senate dragged by the, the sergeant at arms, but also, like, holding his wounded wing for the, for all the cameras of the world to see. Like, look what they did by trying to make me come to the floor and do my job. They.

So they did succeed in getting Packwood to the floor and providing quorum, but they did lose that. The Democrats did lose that fight.

Liam Heffernan: 00:32:30

So there you go, all of that, and they ended up losing.

Gregory Koger: 00:32:33

Yes. Oh, yeah.

Liam Heffernan: 00:32:34

That's. Wow. Bad day. Bad day for that guy. I'm curious to know, after all we've discussed, if there have been any attempts to reform the filibuster.

And how far that's ever gone?

Gregory Koger: 00:32:48

form the filibuster since the: 1870

e first got a cloture rule in: 1917

point, at that time. Then in: 1959

And then in between, of course, just lots, lots, lots of failed attempts to simplify the rule to lower the threshold or even get it to simple majority.

And short version is that there's just never been a simple majority of the Senate that was willing to take the measures necessary to change a cloture rule any further than that.

Then a big theme of my research, though, is that when you're going to try to get rid of filibustering, the way to do it is not by changing the rules of the chamber per se, but usually by invoking a point of order that changes the precedence of the chamber. And that can be done by a simple majority and can get around attempted filibusters against the rules change.

ture on nominations, first in: 2013

It means a simple majority on these types of nominations that we think are really important. So it can be done and it can be done at any time, but it takes a majority that's willing to go that, that far.

Liam Heffernan: 00:35:11

I mean, do you think that it's ever likely that there'll be major reform or not?

Gregory Koger: 00:35:17

I think it's most likely to be the Democratic Party and sooner rather than later, because it takes a while to convince an entire sort of party caucus that the change is needed.

sed to the old, you know, the: 1970

And I don't want to hear about the good old days because they're not here, here anymore. My, all I see are the current present day when we don't do anything, and my constituents are suffering because of it.

So I, I think it takes a generational shift and I think the Democrats are getting there.

The other thing it takes, and this is even harder, is, is, is still like a majority of the Senate that feels like they'd be better off politically getting rid of the rule. And, and for Democrats and, and the 117th Congress. They were close, right? But they were, they were two votes short.

And you had one senator from Arizona and one senator from West Virginia who said, I see how we could pass more legislation under simple majority rule. And I don't actually want to pass all that legislation.

I mean, they made an excuse about how great it would be if to pass legislation through bipartisan coalitions.

But what it boiled down to is they didn't want to be the 50, the 49th and 50th vote for a lot of legislation that other Democrats were ready to vote for, but they didn't want to be responsible for it or, and so politically they didn't want to be responsible to their constituents. And, you know, and personally, they might have thought those weren't good proposals.

And that's why, you know, that's why they voted against culture reform.

And, you know, because the Senate overweight sort of agricultural areas in its representation, it may, even when the Democrats have a majority, it may be difficult to get a majority of Democrats who are fully committed to the legislative agenda of the Democratic Party.

Liam Heffernan: 00:37:37

That's fascinating.

And Gregory, everything you've said today has been, has been really enlightening for someone living on the other side of the Atlantic who knows absolutely nothing about filibusters. But we're going to have to wrap up the conversation there. Gregory, thank you so much for joining me for this episode.

And to anyone listening if you found this conversation interesting and you want to find out more, we're going to leave links to everything we mentioned in the show notes, as well as to Gregory's book as well. And on that note, if anyone does want to connect with you directly, where can they do that?

Gregory Koger: 00:38:14

Right now I'm on blue sky@gregory.coger, you know, Blue sky. So that's a good way to do it. And I'm also available on the University of Miami website.

Liam Heffernan: 00:38:24

Awesome. And yeah, I'm also on Bluesky, and I'm on LinkedIn as well, but just search for my name and I'll come up somewhere.

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