This year, the filibuster has kneecapped voting rights and derailed a wide range of legislation, from changes to policing to a minimum-wage increase. Much has been written about the filibuster’s antidemocratic and racist past and present. But it has also been used as a tool of the antilabor right to weaken labor unions. As a result, the United States hasn’t had comprehensive labor reform in more than seven decades, leaving workers subject to a set of antiquated and restrictive labor laws.
The filibuster is not an original feature of the Senate. Until the early 19th century, a simple majority of senators could end debate and call for a vote. For the next century, although there were few formal rules about the filibuster, chamber norms prevented senators from delaying votes indefinitely. These norms began to break down in the early 20th century, when a small group of senators effectively blocked President Woodrow Wilson’s proposed military arms bill, leading to the creation of the first cloture rule. This new rule outlined a process for ending debate and forcing a vote. Notably, the 1917 cloture legislation required a two-thirds vote to break a filibuster; only in 1975 did the vote requirement change to three-fifths, or the 60 votes required today.
Once senators realized the potency of the filibuster, they deployed it with abandon to thwart liberal initiatives like anti-lynching, anti-discrimination and voting rights legislation.
Liberal labor law bills did not escape this treatment either.
Support for collective bargaining was a pillar of the New Deal. In 1935, the Supreme Court struck down President Franklin D. Roosevelt’s first attempt at codifying worker and union rights, the National Industrial Recovery Act (NIRA) of 1933. But, Roosevelt’s broad personal popularity and wide Democratic majorities in both chambers of the Congress — majorities that widened in the 1934 midterms — helped allow for quick passage of a follow-up attempt at worker rights: the 1935 National Labor Relations Act (NLRA), which guaranteed the right of private-sector employees to organize into unions, engage in collective bargaining and take collective action like strikes. The NLRA also accounted for one of the major failings of the NIRA by establishing the National Labor Relations Board (NLRB) to enforce labor law and adjudicate disputes. Energized by a short period of expanded labor rights via the NIRA, and angered by its invalidation, workers mobilized in full support of the NLRA.
Republicans saw the new legislation as an intrusion by the federal government into areas best left to the free market. In 1946, Republicans retook the majorities in both the House and the Senate for the first time since 1929 and 1931, respectively. Shortly after this new Congress was sworn in, it set about dismantling the victories workers had achieved in the New Deal era with new legislation that, among other measures, excluded independent contractors from the meaning of the term “employee” and banned closed union shops.
Despite President Harry S. Truman’s veto and a 10-hour filibuster, the Taft-Hartley Act passed in 1947. The new legislation also prohibited unions from engaging in certain practices like secondary boycotts, required union officers to sign affidavits asserting that they were not communists and allowed states to pass so-called right-to-work laws. While the provision regarding anti-communist affidavits has since been repealed, most of the provisions remain on the books. In 2021, 27 states have right-to-work laws that undermine labor unions and result in lower wages (as much as $1,500 per year) for workers.
After a single term, Democrats retook control of Congress following the 1948 elections. Ever since then, the filibuster has prevented numerous attempts to undo some of the damage to workers and unions Taft-Hartley has caused. In particular, three crucial labor reform bills probably would have been enacted if not for filibusters in the Senate.
A 1966 labor reform bill would have repealed the section of Taft-Hartley that allows states to pass right-to-work laws. Such a repeal had been Democratic Party priority since at least 1960, and the leaders of the major unions at the time — including that of the AFL-CIO and the International Brotherhood of Electrical Workers (IBEW) — considered it their “top legislative priority.” Though he had voted for Taft-Hartley as a congressman, as president, Lyndon B. Johnson strongly supported this repeal — so much so that he publicly affirmed support for it in his 1965 State of the Union address. The bill passed a Democratic-majority House, but the Senate failed to invoke cloture after Senate Minority Leader Everett Dirksen (R-Ill.), long labor’s foe, led Republicans and Southern Democrats in a filibuster.
In other words, the bill died because of the filibuster.
The filibuster also spelled the downfall of the 1977 Labor Law Reform Act, a bill that would have sped up the union recognition process and imposed stricter penalties on employers who interfered with — or retaliated against — workers attempting to unionize. Though the bill was considered only a fine tuning of existing labor law, organized labor, cognizant of their slipping public opinion as the economy atrophied and American society became increasingly conservative heading into the 1980s, was strongly supportive of it. The bill had the support of the House, labor unions and President Jimmy Carter.
But the Senate narrowly failed to invoke cloture and the bill died — once again, because of the filibuster.
And, in 1994, the Labor Relations and Railway Act Amendment would have strengthened worker protections during disputes, including by prohibiting employers from hiring permanent replacements (“scabs”) for strikers. After President Ronald Reagan fired more than 11,000 striking air traffic controllers in 1981, unions said the practice of hiring replacements for striking workers rose sharply, and turned the issue into a contested one in the Congress.
Though business interest and trade groups, including the U.S. Chamber of Commerce, aggressively lobbied to stop the bill, a clear majority of Americans endorsed the bill’s aims: nearly three-quarters supported workers’ right to strike, and two-thirds believed that companies should not be able to permanently replace striking workers. It passed the House and had President Bill Clinton’s enthusiastic support. And yet, the bill died after the Senate failed to end a filibuster.
Under current federal law, employers are allowed to hire strikebreakers to undermine collective bargaining efforts.
For over a century, the filibuster has been wielded to block legislation that would make our economy and politics more democratic. Labor Day recognizes the fact that a robust and equitable economy and democracy requires empowered workers. But for almost three-quarters of a century, the filibuster has blocked measures that would help workers organize. Today, it is directly obstructing numerous pro-worker bills that have already passed the House, including the PRO Act to expand labor protections for workers seeking to organize and the Paycheck Fairness Act to rectify gender wage discrimination.
The filibuster’s antilabor history should be understood as part of the story of how this procedural rule has undermined American democracy and fostered inequality for decades.
