Since the end of the 19th century, the filibuster—a political procedure used in the U.S. Senate by one or more members to delay or block legislation—has emerged as a preeminent institutional tool used to deny rights and liberties to tens of millions of Black and brown Americans. Over the past two centuries, it has been abused repeatedly during some of the darkest periods of America’s history to prevent the passage of legislation that would protect the civil rights and voting rights of Black Americans, including to block anti-lynching legislation.
This legacy, however, is not a relic of the past; it is alive and well today through the repeated use of the filibuster to prevent the passage of critical voting rights legislation, including the Freedom to Vote Act (FTVA) and the reauthorization of the monumental Voting Rights Act of 1965 (VRA). This latest chapter in the filibuster’s history comes at a time when many states are enacting targeted measures to prevent historically disenfranchised communities from accessing the ballot box.
This issue brief provides an overview of the ways the filibuster has historically been used to suppress the rights of Black and brown Americans before detailing recent voter suppression efforts. It then describes the Senate’s use of the filibuster, as well as the filibuster’s monumental influence on the legislative process, today.
History of the filibuster to block civil and voting rights protections
There is disagreement among historians as to when the filibuster was first used. However, there is widespread consensus that the filibuster was not created by the Founding Fathers to regulate debate or force consensus; rather, it was created and modified over the decades, now centuries, to serve the specific and often cynical aims of sitting senators. Put simply, the filibuster is nothing more than a self-imposed institutional procedure.
The first time the filibuster was used to specifically deny Black and brown Americans their civil rights was in the 1890s, when it prevented the passage of legislation to counter the severe and violent voter suppression taking place across the American South in the aftermath of the Civil War and the ratification of the Reconstruction amendments. Only a few decades later, in the 1920s, the filibuster was used again at a critical juncture to block the passage of anti-lynching legislation meant to curb the extreme violence perpetuated against Black communities and the torture and murder of thousands of Black Americans.
Then, during the 1950s and 1960s—a pinnacle moment in the struggle for civil rights in American history—the filibuster was abused repeatedly by Southern Democrats to obstruct the passage of the Civil Rights Act of 1957, the Civil Rights Act of 1964 (CRA), and the VRA. The Senate had to overcome multiple filibusters to pass these landmark pieces of legislation, including the longest individual speech filibuster, which lasted more than 24 hours in 1957, and a record-breaking 60-day filibuster in 1964. Now regarded as some of the most monumental pieces of legislation passed by Congress, these bills nearly failed to become law due to a handful of senators wielding the filibuster.
Voter suppression today
In the minds of many Americans—primarily white Americans—the struggle for civil rights is over, but as millions of other Americans know, the fight continues. Renewed efforts over the past decade by courts and state legislatures to restrict the right to vote make clear that civil rights are under attack. True to historical precedent, many of these voter suppression efforts have specifically been aimed at restricting the rights of communities of color, to the point that one North Carolina law was struck down on the grounds that it “target[ed] African-Americans with almost surgical precision.”
Some of the most devastating impacts have been at the hands of the U.S. Supreme Court’s ongoing erosion of VRA. For almost 50 years following the passage of the VRA, the racial voting gap across the United States was shrinking. However, in the 2013 Shelby County v. Holder decision, the Supreme Court invalidated the critical preclearance measure of the VRA, which required states with a history of racial discrimination to receive federal approval before changing voting laws and procedures. Following this ruling, many states that were previously subject to the VRA’s preclearance requirements almost immediately began changing their voting laws. Since then, and as a result of state changes following the Shelby County decision, the racial voting gap has widened over the past decade.
This latest wave of voter suppression efforts unleashed by the Shelby County decision only accelerated following the 2020 presidential election cycle, which precipitated efforts by many states to restrict voting practices that helped tens of millions of Americans cast ballots during the coronavirus pandemic. The FTVA and the John Lewis Voting Rights Advancement Act (JLVRAA) would counter and prevent the further erosion of voting rights today, but the filibuster stands in the way of progress.
Since the 2020 election cycle, half of all states have enacted laws that have made it more difficult for Americans to cast their ballots, including by placing restrictions and limitations on mail-in voting, ballot drop boxes, early in-person voting, and voter registration. In 2023 alone, 10 states enacted restrictions on vote by mail, and five enacted stricter voter ID requirements. Many of these changes specifically target and will disproportionately affect communities of color, who already face more barriers to casting their ballot and disproportionately have their ballots rejected due to minor errors.
New laws in Georgia and Texas have been aimed at restricting voting practices in predominantly urban areas, even going as far as targeting specific and demographically diverse counties, such as Fulton and Harris counties. Conversely, many of these same laws have expanded voting opportunities in less diverse areas of the state.
For example, Georgia’s new law limited the number of mail-in ballot drop boxes to one drop box for every 100,000 active registered voters, restricting the number of drop boxes in the Atlanta metropolitan area to approximately 20, compared with approximately 100 during the 2020 election. Analysis by NPR, WABE, and Georgia Public Broadcasting that compared travel times to drop boxes across the state during the 2022 midterms found that the time to get to a drop box increased for approximately 1.9 million voters—one-quarter of Georgia’s voters. The vast majority of voters who now face increased travel times to drop boxes live in urban and suburban areas, while the same analysis found that travel times to drop boxes in many rural counties decreased.
Similarly, Texas’ law established a standardized window for early voting hours, which greatly limited hours of early voting in Harris County—home to more than 2.5 million registered voters. It also banned the county’s drive-through voting practice, which allowed Texans—including those with disabilities—to fill out ballots in their car at a polling location. While the state law directly targeted voting practices in Harris County, the same new standardized window for early voting hours conversely increased the required number of days and hours of early voting in rural communities.
In Montana and Arizona, new laws and legal challenges have banned or rolled back voting practices on which Native American communities depend. These states have specifically targeted ballot collection practices, which allow family and community members in isolated and rural areas, such as reservations, to return each other’s ballots. Challenges to these practices went all the way to the Supreme Court in 2023 and resulted in an even further weakening of some of the remaining protections of the VRA.
In other instances, states have enacted and promoted disenfranchisement and voter intimidation tactics reminiscent of the Jim Crow era that in some instances directly overturned the democratic will of the people. For example, in 2018, Florida voters overwhelmingly approved a constitutional amendment to reenfranchise formerly incarcerated individuals. The amendment would have ensured that approximately 1.5 million Floridians with past felony convictions regained their right to vote—making it one of the most significant voting rights reforms in recent history. However, the state legislature intervened and enacted a new law that in effect nullified the amendment. Many experts have compared the new law to poll taxes of the Jim Crow era since it requires disenfranchised voters to pay fines and fees to vote. One federal judge even ruled that the policy amounted to a “pay-to-vote” system.
To make matters worse, the Florida Legislature also approved the creation of an election police unit to investigate allegations of voter fraud, leading to Floridians facing charges. In 2022, the state allowed 20 people with prior felony convictions, including 15 Black Floridians, to register to vote and confirmed their eligibility with voter information and ID cards, despite Florida’s altered law barring people with prior convictions from voting. These voters were ultimately prosecuted for “good-faith” mistakes and are suffering the consequences of the state’s administrative errors. Due to the punitive and disproportionate impact of the election police unit on Black Floridians, many experts have labeled these tactics as blatant state-sponsored voter intimidation that will discourage Black and brown Americans from registering to vote and casting a ballot.
While voter suppression is concentrated in the American South, these efforts are in no way isolated to this region. America is facing a voter suppression crisis at large that transcends geography and is focused on suppressing the votes of historically disenfranchised communities across the country. At a time when states are passing laws that target the right to vote for millions of Americans of color, progress is once again at the mercy of the Senate filibuster.
The Senate’s continued abuse of the filibuster
America is facing another critical moment in its civil rights history, and the right to vote is under attack, particularly for Americans of color. Since 2018, Congress has been working to pass critical voting rights legislation. However, as has been the case many times during critical chapters in civil rights history, the filibuster is once again being abused to obstruct progress and prevent Americans from exercising their constitutional rights.
Together, the FTVA and the JLVRAA would undo many of the voter suppression measures detailed above and prevent further backsliding. The FTVA would establish national standards for voting to ensure baseline access to the ballot box for all voters, regardless of which state they call home or what ZIP code they live in. Meanwhile, the JLVRAA would restore critical components of the VRA and modernize many protections, including preclearance requirements, to better respond to the voter suppression landscape today.
The U.S. House of Representatives has passed the FTVA and the JLVRAA with the simple majority of votes that would ordinarily be necessary for the Senate to approve the final passage of legislation. However, the Senate has filibustered both pieces of legislation, and supporters of the bills have yet to muster the 60 votes needed to overcome the filibuster. In fact, over the past few years, the filibuster has been used five times to block the passage of the FTVA in the Senate.
The outsize power of the filibuster today
The playing field facing today’s voting rights legislation is not the same as that facing the CRA and VRA. When Congress passed those monumental bills in the 1960s, the filibuster had much less institutional and practical power than it does today.
Reforms in the 1970s to Senate procedure allowed senators to filibuster without bringing the entire Senate to a halt, as was the case with filibusters blocking the passage of civil rights legislation in the 1950s and 1960s. These changes made it possible for multiple pieces of legislation to remain pending on the Senate floor simultaneously, and legislation under threat of filibuster could be indefinitely postponed for a vote until the majority managed to muster the 60 votes needed to achieve cloture and end a filibuster. This change led to what some refer to as the 60-vote Senate.
Since the 1970s, senators no longer need to physically occupy the floor or continually speak to prevent a bill vote. Instead, they can simply announce their intent to filibuster and force the bill’s sponsors to choose between a likely failed vote to end a filibuster or moving to other Senate business. This change in many ways created the congressional graveyard Americans are frustrated with today and ensured senators’ filibustering receives far less attention and national pressure to allow votes on critical issues.
Prior to the filibuster reforms of the 1970s, a Congress averaged approximately three cloture motions to end a filibuster. That number stands in shocking contrast to the 85 cloture motions under each Congress during President George W. Bush’s presidency, the 158 under each Congress during President Barack Obama’s presidency, the 265 under each Congress during President Donald Trump’s presidency, and the 293 during the first Congress under President Joe Biden.
Although long and tedious, the filibusters used to block the passage of the CRA and VRA ultimately placed a substantial onus on the Southern Democrats to block the legislation. At the same time, news coverage focused on the filibustering Southern Democrats preventing the Senate from taking up other business. Today’s mostly silent filibuster used to block current voting rights legislation, on the other hand, can float by without being in the national spotlight for weeks, placing far less pressure on senators who are preventing civil rights legislation from passing. Moreover, the Senate can essentially continue its business while these critical pieces of civil rights legislation are added to the ever-growing list of legislative priorities that Congress has failed to pass.
On top of the changes to the rules and use of the filibuster, the filibuster’s distorted effect of granting a veto to a block of senators representing, in some instances, a small minority of the country is only increasing. The U.S. Constitution granted each state two senators, regardless of population. When the United States was founded, the population difference between the most and least populous states was 13 to 1.48 Today, the population difference between the most and least populous states—California and Wyoming—is 68 to 1. The proportional power of senators representing less populous states is far greater today than when the Senate was founded.
Understanding these massive disparities in representation are vital for understanding the outsize power that the filibuster holds today. Senators from the 21 least populous states—representing only 11 percent of the country’s population and only 7 percent of the country’s Black population—can abuse the filibuster to prevent almost any legislation from being passed by Congress. These inequalities in representation will only grow in the future as population differences between states become even greater, further growing the filibuster’s power. Representation inequality will grow so great that by 2040, more than two-thirds of the U.S. population—70 percent—will likely be represented by less than one-third of the Senate—only 30 senators.
This means that critical policies widely supported by many Americans on both sides of the aisle will face even more difficulties overcoming obstructions by a minority of senators who represent a continually shrinking portion of the population.
Reforming the filibuster to allow key votes on legislation is critical to restoring an operational and responsive Senate that has been increasingly dysfunctional and paralyzed in its ability to carry out the people’s will. While the filibuster has had a long history of standing in the way of progress, today’s filibuster has gained such outsize power that progress is practically impossible. Congress’ inability to meet the needs of the majority of Americans will only grow as population dynamics shift, and the Senate and its self-imposed rules and procedures bring the nation ever closer to minority rule.
Conclusion
In many ways, the filibuster has defined the history of accessing the ballot box for Black and brown Americans. Just as it has done over the past two centuries, the filibuster continues to be used to obstruct major legislation necessary to advance racial justice and voting rights in the United States.
Historically, both parties have used the filibuster to prevent the realization of Americans’ civil rights. That is why the heart of this issue is not a partisan one; party ideologies and positions change, but the fight to ensure that the civil rights of all Americans are upheld and protected continues. What has remained constant is the use of the filibuster to obstruct advances in civil rights and ensure that the rights and liberties of all Americans are protected and upheld.
Democracy rests on all citizens’ ability to have their voices heard through their ability to cast a ballot, duly elect their representatives, and ensure their interests are represented in the halls of government. Yet that is not the experience for too many Americans, who are losing faith in Congress, government, and even American democracy. A critical step to regaining this trust and reviving a government that is of the people, by the people, and for the people rests with reforming the Senate filibuster. Doing so will allow the Senate to be a truly deliberative body that legislates based on the will of the people.
This article was published by the Center for American Progress.
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