Did civil rights bills account for ‘half’ of the bills successfully filibustered over 77 years?

A North Carolina congresswoman says a tool for blocking legislation in the Senate has been used a significant number of times against civil rights measures.

Democratic Rep. Alma Adams tweeted on Jan. 11: "From 1917 to 1994, half of the bills that were successfully filibustered in the Senate were Civil Rights legislation."

Democrats have had trouble advancing their agenda in the U.S. Senate. Now many of them are calling on senators to eliminate the filibuster, a procedure that effectively raises the bar for bill approval from a simple majority to 60 votes. 

Former President Barack Obama has referred to the filibuster as a "Jim Crow relic" and PolitiFact has written about how it was used to thwart civil rights legislation. We wondered if Adams was right about how frequently the filibuster was used against civil rights measures.

Adams’ quote comes from one expert’s article in the Washington Post. However, tracking the use of the filibuster isn’t simple. While Adams’ stat is based on a credible analysis, some scholars take issue with it, saying that much depends on how one defines a filibuster and measures its success.

The filibuster is a term that generally refers to a rule allowing a minority of senators to hold up legislation. Lawmakers can delay consideration of a bill by speaking on the Senate floor for hours at a time to state their opposition or to try to influence other senators. In some cases, the speeches go down as merely performative, having no influence on legislation.

These days, senators don’t actually need to speak for hours on the floor to effectively use the filibuster. They can simply say they object to the legislation under consideration. Then, to end debate on the bill, the Senate must trigger what’s known as "cloture," which requires 60 votes in favor of proceeding to a final vote. Republicans effectively used the tool last year to block Democrats’ voting rights legislation, known as the For The People Act. They also used it last week to defeat legislation that combined the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act.

There’s no official government tally for how many bills the filibuster has blocked. When it comes to civil rights, the U.S. Senate Historical Office says on its website:

"Filibusters proved to be particularly useful to Southern senators who sought to block civil rights legislation, including anti-lynching bills. Not until 1964 did the Senate successfully overcome a filibuster to pass a major civil rights bill."

The historical office has not tried to count the total number of filibusters used, said Daniel S. Holt, an assistant historian in the historical office. That is partly "because the definition of a filibuster and what constitutes a filibuster is a matter of interpretation," Holt said. 

Some bills have died under threat of filibuster, even if it wasn’t officially employed. Holt said scholars who have tried to count the total number of filibusters have used different criteria and come up with different counts over the years. 

When we reached Adams' office for comment, her spokesman cited an analysis published last year in The Washington Post. It was written by Sarah Binder, a professor of political science at George Washington University and a senior fellow at the Brookings Institution.

Binder looked into how the filibuster was used against civil rights for a book she wrote with Steven Smith of Washington University in St. Louis titled, "Politics or Principle? Filibustering in the U.S. Senate." Binder said she and Smith used historical sources to try to generate the list of measures that were killed by filibuster despite having support from a majority of members in both the House and Senate, as well as the White House. 

"Of the 30 measures we identified between 1917 and 1994, exactly half addressed civil rights — including measures to authorize federal investigation and prosecution of lynching, to ban the imposition of poll taxes and to prohibit discrimination on the basis of race in housing sales and rentals," she wrote for The Post.

Binder acknowledged that other scholars have reached different conclusions. "Ultimately, all these counts need an asterisk to make sure that readers understand the difficulty of recreating a comprehensive historical record," she said in an email to PolitiFact NC.

Eric Schickler, a political science professor at the University of California, Berkeley, thinks Binder’s sentiment is generally accurate. Schickler co-authored the book, "Filibuster: Obstruction and Lawmaking in the U.S. Senate."

"If you just say, ‘What were the measures that likely had the majority in favor of it, that were defeated because of minority instruction?’ I think it's right to say that about half of them, in that period, were civil rights-related bills," Schickler said.

If Binder’s count of bills defeated by the filibuster seems low, Schickler notes that it was unusual for the tool to be used to permanently kill a bill until the 1970s. The exception was civil rights, he said.

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Pat McCrory

stated on March 28, 2016 in a speech in Clayton, N.C.

"We have not taken away any rights that have currently existed in any city in North Carolina" with the passage of HB2.

"The senators who were opposed to [a particular civil rights measure] tended to be much more committed than the senators in favor of it," he said. "So in other words, the Southern senators who opposed civil rights in, let’s say ’20s, ’30s, ’40s and ’50s, they were willing to pull out all the stops and use obstruction to the kill." 

There’s not a consensus on Binder’s count.

The percentage of filibusters that affected civil rights is probably lower than half, says Gregory Koger, chair of the University of Miami’s political science department. Koger wrote, "Filibustering: A Political History of Obstruction in the House and Senate."

Koger said it may be easier to track the fate of civil rights bills because, between the 1930s and 1960s, senators were more likely to call for cloture votes on them than on other filibustered legislation. "This enabled them to create a public record of their position for the press and interest groups, knowing that the votes would fail," he told PolitiFact NC in an email.

Koger says his thorough and "systematic" approach to finding defeated bills "identified many more instances of non-civil rights filibusters, so the overall proportion was much less than one-half."

Gregory Wawro co-authored "Filibuster: Obstruction and Lawmaking in the U.S. Senate" with Schickler and has a slightly different opinion. "My sense is that (Binder’s) number is probably too high, but I don't know that we should get too hung up on that," said Wawro, chair of the political science department at Columbia University.

"The general point that (Binder and Smith) are making still holds: the class of bills most successfully targeted during this period were civil rights bills. I don't think whether it was half or less than half really matters that much," Wawro said.

Adams said: "From 1917 to 1994, half of the bills that were successfully filibustered in the Senate were civil rights legislation." 

Her claim is supported by an analysis by a political scientist who has co-authored a book on the history of the filibuster. However, some scholars aren’t in agreement on this issue.

At least two other experts say civil rights bills probably accounted for less than half of bills successfully filibustered during the highlighted time period.

The statement is partially accurate: some experts do support Adams' claim. However, it leaves out important details: other experts say the stat is off. We rate this claim Half True.