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'Throughline': The battle over the filibuster's future is a battle over its past

LEILA FADEL, HOST:

In recent decades, nearly every major piece of legislation that's come through the Senate has been at the mercy of the filibuster. And the only way to end a filibuster is to get 60 senators to actually agree with each other. From our podcast Throughline, Rund Abdelfatah and Ramtin Arablouei guide us through how the filibuster landed on this number.

RAMTIN ARABLOUEI, BYLINE: You'd be forgiven if every time you heard the word filibuster, your eyes glaze over a little bit.

RUND ABDELFATAH, BYLINE: So let's quickly run through how a filibuster actually works these days.

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ABDELFATAH: The Senate is made up of 100 senators, two from each state. You need just 41 senators to filibuster, to take a piece of legislation hostage. And you need 60 senators to end a filibuster, technically called a cloture vote. Main thing to know is that anything short of 60 senators, and nothing moves forward. So it gives the minority party some power back.

ARABLOUEI: And these partisan arguments have surrounded the filibuster for over a century now. Back in the early 1900s, there were people making the same argument that Republican Senator Mitch McConnell frequently makes, which is to defend the filibuster as a bastion of democracy and a way of protecting minority views in our government - an argument, by the way, that many Democrats, including Senator Chuck Schumer, have made when they were in the minority.

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CHUCK SCHUMER: I am sure my colleagues could quote me opposing filibuster reform just as I could quote them in favor of such reform.

ARABLOUEI: But there were also arguments being made to rein in the filibuster. Difference is, in the early 1900s, there were no limits at all. Any senator could just hold up a bill by taking as long as they wanted. Senators had been pushing for decades for a cloture rule. That's a rule that allows a set number of senators to end a filibuster. And decades went by without progress.

ABDELFATAH: But then, in 1917, something changed.

GREGORY WAWRO: We're on the eve of World War I.

ARABLOUEI: This is Gregory Wawro, chair of the department of political science at Columbia University, who's written a book about the filibuster.

WAWRO: And there are deep divisions in the country about whether the United States should get involved in the war or not.

ABDELFATAH: These divisions had been brewing for several years, both in the public squares and the chambers of the Senate, as flames and bullets and trenches engulfed Europe. And one piece of legislation kept coming up, the armed ship bill.

WAWRO: There were some who were concerned that this is basically going to put the U.S. on a path to war because this will be seen as provocation.

ABDELFATAH: The armed ship bill got to the Senate floor and was filibustered by 11 senators who opposed U.S. entry into the war.

WAWRO: A little group of willful men.

ABDELFATAH: At least that's what Woodrow Wilson called them, who was U.S. president at the time. And he decided if he couldn't make any progress playing by the rules, then the rules needed to change. Wilson's anger began to spread like wildfire, literally. Effigies of the little group of willful men were burned around the country.

WAWRO: It seems like the writing is on the wall that the U.S. is going to get involved in this war. Passions are inflamed. And this is one of the times where the filibuster really is a focus of public attention.

ARABLOUEI: Wilson managed to twist the Senate's arm so that it had no choice but to reform the filibuster. Some senators wanted it to be a simple majority, meaning anything more than half ends debate. But they were forced to compromise.

WAWRO: So the Senate adopts Rule 22. That establishes a two-thirds cloture rule.

ARABLOUEI: OK, a two-thirds cloture rule. Cloture ends debate. Let me break down the two-thirds part for you. At the time, there were only 48 states. So two senators from each state equals 96 senators. And two-thirds of that equaled 64 senators. And if they got together and agreed to invoke cloture, then a filibuster would end. Debate would stop. And voting would begin. Now, you might remember that today, we have a little lower threshold - three-fifths, 60-vote cloture rule. I know, it's a lot of math. If you're wondering how he landed at that version, we need to fast forward from debates about World War I to civil rights.

ABDELFATAH: During Jim Crow, local and state laws were put in place to keep white and Black people segregated in public spaces across the American South. As senators in favor of civil rights reform took the majority in the Senate, southern senators opposed to those reforms used the filibuster more and more against all kinds of civil rights legislation, including anti-lynching laws that would have made lynching a federal crime. Over the next few decades, Congress debated almost 200 anti-lynching measures. Not a single one passed.

WAWRO: So the filibuster had become more of a central part of the strategy that Southern politicians engaged in in order to preserve the existing system of the South - right? - to maintain Jim Crow in the South.

ABDELFATAH: In 1957, as a civil rights bill made its way to the Senate, Lyndon Johnson, who was the Senate majority leader at this time, put a lot of time and energy into building enough bridges with Southern senators to convince them not to filibuster the bill. As a Southern Democrat himself, he was able to speak to their concerns. And it probably also helped that the bill had been heavily watered down.

WAWRO: The fact that they were able to forge this compromise, I think, is very instructive about how the Senate operated even up to this point, right? It's sort of like, you could forge this informal compromise, and it would largely hold.

ARABLOUEI: But a few years later, when Lyndon Johnson was in the White House, he faced a much bigger filibuster battle over the Civil Rights Act of 1964.

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ARABLOUEI: Southern senators banded together and filibustered the bill for 54 days. It was a grueling process to get over the cloture vote threshold to end the filibuster. And according to political scientist Gregory Wawro, the struggle required to pass it and the years of filibustered civil rights reforms leading up to it sparked a renewed push to reform the cloture rule. And eventually, in 1975, the vote count was changed from two-thirds to three-fifths, lowering the amount of votes needed to end the filibuster to 60.

ABDELFATAH: A messy, imperfect process that would only get messier in the 21st century.

WAWRO: The history of the filibuster is one where the obstructionists try new things. And they see what they can get away with. And oftentimes, there's a response from those who are trying to move the Senate forward, to use different maneuvers to crack down on what the obstructionists are doing.

FADEL: That was Gregory Wawro speaking about the filibuster with Throughline hosts Rund Abdelfatah and Ramtin Arablouei.

(SOUNDBITE OF RAMTIN ARABLOUEI'S "ELECTORAL COLLEGE - WIGS") Transcript provided by NPR, Copyright NPR.