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A basic fact of modern American lawmaking at the federal level is that most bills can only pass if they have 60 or more votes in the Senate—unless the bill is subject to special procedures. Without 60 votes, any senator can block most bills using a procedure known as the filibuster.

At its core, the filibuster is a rule that makes it harder for Congress to pass laws. For senators in the minority, this is an advantage; they can prevent their opponents from passing bills that they do not like or force the majority to negotiate changes, provided they have the 41 votes needed to sustain a filibuster.

But with the country persistently split along party lines, today there is often a vast, unbridgeable divide between the 51st and 60th vote in the Senate. And that means that the filibuster effectively stymies most major legislation. When coupled with the rapid increase in its use, the filibuster has had a substantial effect on policymaking over the past few decades.

This report looks at the impact of the filibuster on legislative policymaking, describing how the filibuster came to be; its increased use; the disproportionate power it provides to a small segment of society; and what legislative priorities it has been used to derail.

There is a stubborn myth that the filibuster is part of the Founders’ vision of government.¹ However, not only does the U.S. Constitution make no mention of the filibuster, it also appears to assume that legislative decisions would be made by majority vote.² The evidence suggests that the filibuster arose not out of any founding principles but instead out of “tenuous precedents and informal practices.”³

In fact, for much of early U.S. history, the Senate operated essentially by majority rule. Until 1806, a Senate rule allowed a simple majority to end debate on a bill and move to a vote.⁴ And when that rule was eliminated, in 1806, it appears that it was by mistake—senators were merely cleaning up their rulebook, on the advice of Vice President Aaron Burr, and did not realize that they had opened the door to unlimited obstruction.⁵ The first filibuster did not occur until more than 30 years later in 1837.⁶

The term filibuster entered use even later, in the 1850s, when it described the practice of senators giving lengthy speeches to delay a vote on a bill.⁷ Still, the filibuster was not commonly used—”in general, legislation passed by majority rule.”⁸ One reason may have been that, in order to sustain a filibuster, senators had to actually stand on the Senate floor and continue to speak—not an easy exercise to maintain indefinitely. When senators did so, it served more to delay legislation than to defeat it. In fact, “almost every filibustered measure before 1880 was eventually passed.”⁹

The modern-day filibuster is largely the product of two significant reforms: one in 1917 and another in 1974. During World War I, before the United States had entered the war, a group of 11 senators filibustered a bill that would have armed American merchant ships to protect them from attacks by German U-boats.¹⁰ Shortly thereafter, President Woodrow Wilson made a statement, published in The New York Times, stating that “[t]he Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.”¹¹ Referring to the 11 senators as “a little group of willful men,” Wilson stated, “The only remedy is that the rules of the Senate shall be so altered that it can act.”¹²

Days later, the Senate met in a special session to consider rules that would break the logjam and allow the Senate to act. The new rules included what the senators termed a cloture motion, which allowed senators, by a vote of two-thirds of those present, to limit debate to one hour before proceeding to a majority vote on a bill.¹³ For almost 50 years after the adoption of the new rules, cloture votes to end debate were exceedingly rare.¹⁴

The one issue for which the filibuster proved a major obstacle in the decades that followed was civil rights. From the late 1920s through the 1960s, the filibuster was primarily used by Southern senators to block legislation that would have protected civil rights¹⁵—anti-lynching bills; bills prohibiting poll taxes; and bills prohibiting discrimination in employment, housing, and voting.¹⁶ These anti-civil rights filibusters were often justified with “inflated rhetoric about an alleged Senate tradition of respecting minority rights and the value of extended debate on issues of great importance.”¹⁷ But belying this rhetoric, conservatives during this period generally refrained from engaging in filibusters on issues other than civil rights.¹⁸

Some of the most notorious filibusters in American history were against the Civil Rights Acts of 1957 and 1964. During the filibuster of the 1957 Civil Rights Act, then-Democratic Sen. Strom Thurmond set a record by holding the Senate floor continually for 24 hours and 18 minutes.¹⁹ Seven years later, the ultimately unsuccessful effort to obstruct the Civil Rights Act of 1964 lasted a total of 74 days and received major ongoing news coverage—ultimately helping to galvanize the public and break through the Southern opposition to civil rights.²⁰

In the early 1970s, the filibuster became more common and was used to block a broader range of legislation.²¹ There had never been more than five filibusters in a single year prior to 1966, but there were 10 each year from 1971 to 1973 and 18 filibusters in 1974.²² This created renewed pressure for reform. Some reformers, including Democratic Sen. Walter Mondale of Minnesota, wanted a cloture rule that required only a majority vote.²³ Mondale, however, along with Kansas Republican Sen. James Pearson, ultimately proposed a bipartisan compromise to reduce the threshold for cloture from a vote of two-thirds of the chamber to a vote of three-fifths—the current 60-vote threshold.²⁴

Importantly, around the same time, an innovation in Senate procedure allowed senators to filibuster without bringing the entire Senate to a halt.²⁵ Under the new system of tracking legislation, implemented without any formal changes to the rules, multiple bills could remain pending on the Senate floor at one time, so legislation facing a filibuster threat could now simply be “kept on the back burner” until the majority managed to get 60 votes in favor of cloture.²⁶ To the extent that senators had any qualms about holding up Senate business the tracking system smoothed their path for unlimited use of the filibuster. Senators no longer physically occupy the Senate floor and speak in order to block a vote—they simply announce their intent to filibuster a bill, and the Senate either holds a cloture vote or moves on to other business.

On occasion, a senator may vote for cloture in order to allow a debate on a bill, even if they do not support its passage. But in practice, such instances are rare and senators who vote to allow debate on a bill usually support its passage.

This is largely the filibuster as it exists today: The only way to end debate and proceed to a vote is a cloture motion, which requires 60 votes to pass. Senators can filibuster simply by expressing their intention to do so, and if a filibuster is expected, then a bill will often not be brought to a vote. In 2003, political scientist David Mayhew summarized the status quo as “[a]utomatic failure for bills not reaching the 60 mark.”²⁷

Not all modern filibusters can be easily identified because even the mere threat of a filibuster can be enough to prevent consideration of a bill, and there’s no easy source of data on threatened filibusters. However, the Senate does publicly report the number of cloture votes held—votes to break a filibuster in progress. Those numbers, captured in the table below,²⁸ tell a clear story: The number of filibusters has skyrocketed. From 1917, when the cloture rule was put in place, to 1970, there were fewer than 60 cloture motions; the most notable filibusters where those blocking civil rights legislation.²⁹ Between 1970 and 2000, cloture votes increased to an average of about 17 per year. Finally, starting in the 2000s, minority parties in the Senate began to routinely filibuster substantive legislation proposed by the other party. During this period, from 2000 to 2018, an average of 53 cloture votes were held every year, with a continuing trend upward.

Cloture votes reached a high of 218 for the two-year period under the 113th Congress (2013–2014). In the most recent full session, the 115th Congress (2017–2018), there were 168 cloture votes. This was a Congress that the conservative R Street Institute described as “more dysfunctional than ever”—only 52 pieces of legislation were passed in the Senate by a recorded vote.³⁰

The filibuster empowers a minority of senators who may represent a surprisingly small percentage of Americans. Each state is assigned two senators regardless of population, so the most populous state, California—home to nearly 40 million people—has the same number of senators as Wyoming, which has fewer than 600,000 residents. That means that Wyoming voters have 68 times as much representation in the Senate as Californians. By comparison, when the Constitution was ratified, Virginia had almost 13 times as many people as Delaware—the largest disparity at the time.³¹

Consider that the 21 states with the fewest residents, who collectively have enough Senators to filibuster legislation, make up only 11 percent of the total population. Of course, in most cases, it is unlikely that the smallest states would all band together to filibuster because some small states predominantly elect Democratic senators and others predominantly elect Republicans. But the problem is not alleviated by taking into consideration the partisan leanings of states.

For example, the 21 least-populous states currently represented by two Republican senators—enough to sustain a filibuster—represent less than 25 percent of the U.S. population. Democrats currently have two senators in 18 states, and those states represent about 41 percent of the U.S. population.³² If you include five additional Democrats from the least populous states that have one Democratic senator—enough to sustain a filibuster—then they would represent about 46 percent of the population.³³ Also, consider that many voters do not support the winning candidate in their state. The implication is that, at any time, a very small percentage of the population can elect enough senators to block the will of a much larger majority of Americans.

Note that because senators represent uneven numbers of Americans, even the majority in the Senate may not quite represent a majority of Americans. In those cases, the filibuster can be used by a minority of senators to prevent an outcome that itself lacks majority support among the American people.

It is easy to demonstrate that the filibuster has increased in use and that it allows a small minority to frustrate the will of the majority. It is not easy, however, to quantify the actual impact of the filibuster. To provide a sense of the filibuster’s impact, this report first examines significant bills that were blocked by filibusters. Second, it provides examples of legislation that never made it to a vote in the first place because senators assumed these bills would be blocked by the filibuster.

The list of bills is intended to capture significant policy changes that would have gone into effect if not for the filibuster. It is composed of bills considered since the beginning of the Clinton administration that: 1) had the support of a majority of senators; 2) were subject to a filibuster but lacked the 60 votes to overcome it; and 3) would likely have become law if passed by the Senate.

The last criteria is important because many bills that pass one chamber of Congress do not become law, particularly in periods of divided government. Consider, for example, Senate Democrats’ 2012 effort to pass the Buffett Rule, which would have set a 30 percent minimum tax for individuals with an annual income of more than $2 million, phasing in gradually for individuals with an income of more than $1 million.³⁴ The bill was supported by 51 senators—all Democrats—but failed to overcome a Republican filibuster.³⁵ However, even if it had passed in the Senate, it almost undoubtedly would have failed in the House of Representatives, which the Republican Party controlled by a substantial margin. Therefore, the filibuster did not really stop the Buffett Rule from becoming law, as it never stood a chance from the start. This is not to say that passage of a bill through the Senate under divided government cannot affect the political dynamics in the House but simply that virtually all bills that could have garnered 51 votes in the Senate likely would still not have become law under divided government.

In order to exclude filibusters of bills that would be unlikely to pass in divided government, the list below is limited to periods of trifecta government—where one party had majority control of the House and Senate as well as control of the presidency. Since at least the 1990s, most major legislation with divided support in Congress has split along party lines. This means that, even if it has passed the Senate, it would have been unlikely to win the support of the opposing party in the House—or the White House. But, in conditions of trifecta government, a filibuster in the Senate can be fatal to a bill that likely would have passed the House and received the president’s signature.

Note that, in some cases, filibustered bills were eventually passed but with substantial concessions to the senators blocking the original bill.

Bills that the Senate filibuster blocked

The bills listed below were collected primarily from the Senate’s database of cloture votes,³⁶ although some bills were identified from a database of filibusters assembled by political scientist Gregory Koger³⁷ or media sources. Each bill is followed by a brief description intended to provide a sense of the bill’s contents, but by no means should these be considered comprehensive summaries. The list reflects to the following periods of trifecta government: 1993–1995, 2003–2006, 2009–2010, and 2017–2018 (the 103rd, 108th, 109th, 111th, and 115th congresses). It is organized into periods of trifecta Republican control and periods of trifecta Democratic control.

Note that this list of filibustered bills includes major progressive priorities, such as efforts to strengthen labor unions, protect the environment, create high-paying jobs, reduce pay discrimination, improve campaign and lobbying disclosures, and provide a pathway to citizenship for Dreamers. It also includes major conservative priorities, such as eliminating access to reproductive health care, limiting access to public benefits, reducing taxes for the very wealthy, and limiting the ability of consumers to sue corporations.

While this report focuses on the impact of the filibuster, it is important to note that nonlegislative means have been used to advance many conservative priorities. These efforts have been aided by an increasing number of far-right judges who have been put on the bench in recent years. While any discussion of the filibuster must be clear-eyed as to how both conservatives and progressives have used this procedural tool, it is equally important to consider the judicial branch’s role in shaping national policy by ruling on state and federal legislation that is brought before federal courts.

108th Congress (2003–2004): Bush administration, Republican trifecta

• S.1751—Class Action Fairness Act of 2003 (10/22/2003; vote: 59–39³⁸). This bill would have made it much harder to bring successful class action lawsuits. It easily passed the House³⁹ and fell one vote short of overcoming a Senate filibuster.
• H.R.6—Energy Policy Act (11/21/2003; vote: 57–40⁴⁰). This 2003 energy bill was filibustered because of a provision that would have protected companies from liability for producing and distributing MTBE, a gasoline additive that can contaminate drinking water. Oil companies have since paid hundreds of millions of dollars in settlements to clean up water contamination.⁴¹
• H.R.4—PRIDE Act (“Welfare reform”⁴²) (4/1/2004; vote: 51–47⁴³). This bill would have placed substantial restrictions on the Temporary Assistance for Needy Families (TANF) program.

109th (2005-2006): Bush administration, Republican trifecta

• H.R.3199—USA PATRIOT Improvement and Reauthorization Act of 2005 (12/16/2005; vote: 52–47⁴⁴). Although the Patriot Act was eventually reauthorized in 2006, one day before it was due to expire,⁴⁵ the final version of the bill contained several new protections for civil liberties—concessions that were won due to a filibuster of the 2005 version of the bill.⁴⁶
• H.R.2863—Department of Defense Appropriations Bill (funding for drilling in the Artic National Wildlife Refuge) (12/21/2005; vote: 56–44⁴⁷). Republican leaders in the Senate attempted to pass a measure to allow oil drilling in the Arctic National Wildlife Refuge (ANWR) by making it a part of “a popular defense spending bill [to pay] for the war in Iraq and Hurricane Katrina relief.”⁴⁸ Though they received the support of four Democratic senators, the bill failed to overcome a Senate filibuster and was eventually passed with the ANWR drilling provision removed.⁴⁹
• H.R.8—Death Tax Repeal Permanency Act of 2005 (6/8/2006; vote: 57–41⁵⁰). This bill would have permanently repealed the estate tax.
• H.R.5970—Estate Tax Reduction and Extension of Tax Relief Act of 2006 (8/3/2006; vote: 56–42⁵¹). This bill would have significantly weakened and reduced the estate tax.
• S.403—Child Interstate Abortion Notification Act (9/29/2006; vote: 57–42⁵²). This bill would have applied parental consent laws across state lines by making it a criminal offense to transport a minor to another state for an abortion without providing notice to the parent (and requires out-of-state doctors to give 24-hours’ notice to parents of such minors).

115th (2017-2018): Trump administration, Republican trifecta

• S.2311—Pain-Capable Unborn Child Protection Act (1/29/2018; vote: 51–46⁵³). This bill would have made it illegal to perform an abortion after 20 weeks of pregnancy.

103rd Congress (1993–1995): Clinton administration, Democratic trifecta

• H.R.1335—Emergency Supplemental Appropriations Act (“Economic stimulus bill”⁵⁴) (4/2/1993; vote: 55–43⁵⁵). At President Bill Clinton’s urging, the Senate attempted to pass an appropriations bill that contained billions of dollars for programs intended to create jobs and provide benefits for the unemployed. The bill was drastically scaled down after a Republican filibuster, joined by one Democrat, Sen. Richard Shelby (D-AL), who switched party affiliation and became a Republican the following year.⁵⁶
• S.55—A bill to amend the National Labor Relations Act and the Railway Labor Act to prevent discrimination based on participation in labor disputes (7/13/1994; vote: 53–46⁵⁷). This bill would have made it illegal for an employer to threaten or take steps to replace an employee who exercised collective bargaining rights.
• S.3—Campaign Spending Limit and Election Reform Act (9/27/1994; vote: 57–43⁵⁸). This bill would have created a voluntary partial public-financing system for federal campaigns.⁵⁹ Although the bill was substantially weakened to pass the House of Representatives, it ultimately failed to move forward due to a filibuster in the Senate.⁶⁰
• S.349—Lobbying Disclosure Act (LDA) (10/7/1994; vote: 55–42⁶¹). The LDA tightened weak and outdated rules requiring lobbyists to register and disclose their clients and lobbying activity. In 1994, the bill was “all but killed” by a Republican-led filibuster, joined by eight Democrats.⁶² However, after persistent campaigning and threats by LDA supporters to filibuster other bills, the LDA finally passed more than a year later.⁶³

111th Congress (2009-2010): Obama administration, Democratic trifecta

• H.R. 4173—Dodd-Frank Wall Street Reform and Consumer Protection Act (Senate version of the bill, S.3217,⁶⁴ was filibustered three times—4/26/2010, vote: 57–41⁶⁵; 4/27/2010, vote: 57–41⁶⁶; 4/28/2010, vote: 56–42⁶⁷). Although the final Dodd-Frank bill imposed new, far-reaching financial regulations, it also contained some compromises. Democrats were one short of the 60 votes they needed to pass a bill along party lines, and therefore made some significant concessions in order to win Republican votes in the Senate—perhaps most notably, a weakening of the Volcker Rule, which aimed to separate the b