No, the filibuster isn’t something the Senate has ‘always had’

President Joe Biden issued his strongest endorsement yet for changing the Senate filibuster on Jan. 11, saying the Senate rules should be changed to “prevent a minority of senators from blocking action on voting rights.” Most Democratic senators support a change to the filibuster, but all 50 Democrats need to be on board for the party to push a change in Senate rules.

Sen. Joe Manchin (D-W.Va.), who has long voiced support for the filibuster, claimed the filibuster has been a “tradition of the Senate” for “232 years now” that the Senate has “always had.” The Senate’s first session was 233 years ago, in 1789.

Some social media users countered Manchin’s assertion that the filibuster is something the Senate has “always had.” Journalist Ashton Pittman claimed the filibuster was actually first used 185 years ago, in 1837.

THE QUESTION

Has the Senate always had the filibuster? 

THE SOURCES

• Historical review of filibuster origins by historian Richard Beeman
• Historical review of filibusters by law professors Catherine Fisk and Erwin Chemerinsky
• Senate Rules Committee
• Brookings Institute
• The Senate

THE ANSWER

No, the Senate has not always had the filibuster. The Senate did not officially establish a right to unlimited debate until 1856. The practice of unlimited debate, which later became known as filibustering, developed gradually in the Senate, beginning in the 1820s and the first filibuster was in 1841.

WHAT WE FOUND

The filibuster, the Senate explains, is a loosely defined term for prolonging debate and delaying action in the Senate. Filibusters are often used by the minority party in the Senate to ultimately prevent the majority from bringing a legislative item to a vote.

While senators occasionally used extended speeches to delay votes for short times from the Senate’s founding, historians say the Senate did not establish the right to unlimited debate until 1856. The practices of extended debate in the Senate, which later became known as filibustering,  started in the 1820s.

There is no mention of the filibuster in the Constitution. It wasn’t mentioned in the first set of rules the Senate adopted back in 1789, either. 

A rule that could bring a pending question to an immediate final vote, called the “previous question” motion, was a part of the original Senate ruleset. The House of Representatives still uses this; it’s one reason the filibuster doesn’t exist there.

In 1801, Thomas Jefferson wrote a manual suggesting the Senate outright forbid using speeches as delay tactics. But in 1806, the Senate removed the one tool they could use to end such speeches from their rules: the previous question motion. Proponents of the filibuster, such as Republican Sen. Chuck Grassley and the Senate Republican Policy Committee, cite this rule change as the birth of the Senate filibuster. The reason the rule was removed was because it was believed to be unnecessary.

Even so, filibustering did not develop in the Senate overnight. In a historical review of the filibuster, law professors Catherine Fisk and Erwin Chemerinsky said the filibuster developed gradually between the 1820s and 1840s, and several other historians cite examples of tactics in that era that resembled the filibuster. 

Fisk and Chemerinsky identify a debate in 1841 as the first filibuster, when the Democratic minority tried to stop a vote by the Whig majority. Fisk and Chemerinsky explained each senator in the minority took turns speaking to block the vote entirely, but ultimately wound up unsuccessful after 10 days of delay.

Fisk and Chemerinsky said it wasn’t until 1856 that the Senate established a right of unlimited debate. Historian Richard Beeman explained after years of confusion over calls of order — at the time, senators could attempt to call a colleague to order for irrelevancy — the Senate attempted to amend its rules in 1856 so that every member “shall confine himself to the question under debate.”

That amendment was overwhelmingly shot down, in large part because senators decided they did not want to put limits on their debate. But that changed in 1917, when the Senate established cloture, a motion to end a filibuster that today requires three-fifths of the Senate’s vote, the Senate says. The Senate has filed more than half of all of the cloture motions in its history since 2007.

That is in part because filibustering is easier now than it was when cloture was first added to the Senate rules. Fisk and Chemerinsky said a change in the Senate process in the 1970s allowed for the “silent filibuster,” which meant a group of senators could prevent a vote with a filibuster indefinitely without actually speaking.

Fisk and Chemerinsky concluded the modern filibuster “is not part of a long Senate tradition” of unlimited debate. 

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