Filibuster in the United States Senate

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A filibuster in the United States Senate usually refers to any dilatory or obstructive tactics used to prevent a measure from being brought to a vote. The most common form of filibuster occurs when a senator attempts to delay or entirely prevent a vote on a bill by extending the debate on the measure, but other dilatory tactics exist. The rules permit a senator, or a series of senators, to speak for as long as they wish and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn"^[1] (usually 60 out of 100 senators) brings debate to a close by invoking cloture under Senate Rule XXII. This means that as few as 41 senators can make a filibuster happen.

According to the Supreme Court ruling in United States v. Ballin (1892), changes to Senate rules could be achieved by a simple majority. Nevertheless, under current Senate rules, a rule change itself could be filibustered, and in this case votes from three fifths of Senators would be required to break the filibuster filibustering a bill to remove filibusters.^[1] Despite this written requirement, the possibility exists that the filibuster could be changed by majority vote, using the so-called nuclear option. (Proponents also refer to it as the constitutional option.)

Unlimited debate and cloture

Early experience

In 1789, the first U.S. Senate adopted rules allowing the Senate "to move the previous question," ending debate and proceeding to a vote. Aaron Burr argued that the motion regarding the previous question was redundant, had only been exercised once in the preceding four years, and should be eliminated.^[2] In 1806, the Senate agreed, recodifying its rules, and thus the potential for a filibuster sprang into being.^[2] Because the Senate created no alternative mechanism for terminating debate, the filibuster became an option for delay and blocking of floor votes.

The filibuster remained a solely theoretical option until the late 1830s. The first Senate filibuster occurred in 1837. In 1841, a defining moment came during debate on a bill to charter the Second Bank of the United States. Senator Henry Clay tried to end debate via majority vote. Senator William R. King threatened a filibuster, saying that Clay "may make his arrangements at his boarding house for the winter." Other Senators sided with King, and Clay backed down.^[2]

Contemporary scholars point out that in practice, narrow Senate majorities were able to enact legislation.^[3] Majorities were able to prevail because of an implicit threat that the filibuster could itself be changed by majority rule if the minority used it to prevent, instead of merely to delay, votes on measures supported by a bare majority.^[3]

20th century and the emergence of cloture

In 1917, a rule allowing for the cloture of debate (ending a filibuster) was adopted by the Democratic Senate^[4] at the urging of President Woodrow Wilson^[5] after a group of 12 anti-war Senators managed to kill a bill to allow Wilson to arm merchant vessels in the face of unrestricted German submarine warfare. From 1917 to 1949, the requirement for cloture was two-thirds of those voting. Despite the formal requirement, however, political scientist David Mayhew has argued that in actual practice, it was unclear whether a filibuster could be sustained against majority opposition.^[6]

During the 1930s, Senator Huey Long effectively used the filibuster against bills that he thought favored the rich over the poor. The Louisiana senator frustrated his colleagues while entertaining spectators with his recitations of Shakespeare and his reading of recipes for "pot-likkers." Long once held the Senate floor for 15 hours.^[5]

In 1946, Southern Senators blocked a vote on a bill proposed by Democrat Dennis Chavez of New Mexico (S. 101) that would have created a permanent Fair Employment Practices Committee (FEPC) to prevent discrimination in the work place. The filibuster lasted weeks, and Senator Chavez was forced to remove the bill from consideration after a failed cloture vote even though he had enough votes to pass the bill. As civil rights legislation continued to loom, the Senate revised the cloture rule in 1949 to permit the Senate to invoke cloture on any measure or motion only if two-thirds of the entire Senate membership voted in favor of a cloture motion.^[7]

In 1953, Senator Wayne Morse set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands Oil legislation. Senator Strom Thurmond broke this record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes,^[8] although the bill ultimately passed. In 1959, the Senate restored the cloture threshold to two-thirds of those voting.^[7]

One of the most notable filibusters of the 1960s occurred when southern Democratic Senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by making a filibuster that lasted for 75 hours, which included a 14 hour and 13 minute address by Senator Robert Byrd. The filibuster ended when the Senate invoked cloture for only the second time since 1927.^[9]

After a series of filibusters in the 1960s over civil rights legislation, the Senate put a "two-track system" into place in the early 1970s under the leadership of Senate Majority Leader Mike Mansfield and Byrd, who was at that time serving as Senate Majority Whip. Before the introduction of tracking, a filibuster would stop the Senate from moving on to any other legislative activity. Tracking allows the majority leader — with unanimous consent or the agreement by the minority leader — to have more than one bill pending on the floor as unfinished business. Under the "two-track system", the Senate can have two or more pieces of legislation pending on the floor simultaneously by designating specific periods during the day when each matter or measure will be considered.^{[10][11][12][13][14][15]}

Finally, in 1975 the Democratic-controlled Senate^[4] revised its cloture rule so that three-fifths of the Senators sworn (usually 60 senators) could limit debate, except on votes to change Senate rules, which require two-thirds to invoke cloture.^[16][17] Another type of filibuster used in the Senate, the post-cloture filibuster (using points of order to consume time, since they are not counted as part of the limited time provided for debate), was eliminated as an effective delay technique by a rule change in 1979.^[18][19][20]

Cloture Voting, United States Senate, 1947 to 2008.^[21]

The filibuster or the threat of a filibuster remains an important tactic that allows a minority to affect legislation. The perceived threat of a filibuster has tremendously increased since the 1960s, as suggested by the increase in cloture motions filed.^[22] A motion for cloture is filed not only to overcome filibusters in progress, but also to preempt ones that are only anticipated.^[23] In the 1960s, no Senate term had more than seven votes on cloture.^[21] By the first decade of the 21st century, the number of votes on cloture per Senate term had risen to no fewer than forty-nine.^[21][24] The 110th Congress broke the record for cloture votes, reaching 112 at the end of 2008.^[25]

Current U.S. practice

Budget bills are governed under special rules called "reconciliation" which do not allow filibusters. Reconciliation once only applied to bills that would reduce the budget deficit, but since 1996 it has been used for all matters related to budget issues.

A filibuster can be defeated by the majority party if they leave the debated issue on the agenda indefinitely, without adding anything else. Indeed, Thurmond's attempt to filibuster the Civil Rights Act of 1957 was defeated when Senate Majority Leader Mike Mansfield refused to refer any further business to the Senate, which required the filibuster to be kept up indefinitely. Instead, the opponents were all given a chance to speak, and the matter eventually was forced to a vote. Thurmond's aforementioned stall holds the record for the longest filibuster in U.S. Senate history at 24 hours, 18 minutes.^[8]

Even if a filibuster attempt is unsuccessful, the process takes floor time. In recent years the majority has preferred to avoid filibusters by moving to other business when a filibuster is threatened and attempts to achieve cloture have failed.^[23]

Recent U.S. Senate history

In 2005, a group of Republican senators led by Senate Majority Leader Bill Frist, responding to the Democrats' threat to filibuster some judicial nominees of President George W. Bush to prevent a vote on the nominations, floated the idea of having Vice President Dick Cheney, as President of the Senate, rule from the chair that a filibuster on judicial nominees was inconsistent with the constitutional grant of power to the president to name judges with the advice and consent of the Senate (interpreting "consent of the Senate" to mean "consent of a simple majority of Senators," not "consent under the Senate rules").^[26] Senator Trent Lott, the junior Republican senator from Mississippi, had named the plan the "nuclear option." Republican leaders preferred to use the term "constitutional option," although opponents and some supporters of the plan continued to use "nuclear option."

On May 23, 2005, a group of fourteen senators was dubbed the Gang of 14, consisting of seven Democrats and seven Republicans. The seven Democrats promised not to filibuster Bush's nominees except under "extraordinary circumstances," while the seven Republicans promised to oppose the nuclear option unless they thought a nominee was being filibustered that was not under "extraordinary circumstances." Specifically, the Democrats promised to stop the filibuster on Priscilla Owen, Janice Rogers Brown, and William H. Pryor, Jr., who had all been filibustered in the Senate before. In return, the Republicans would stop the effort to ban the filibuster for judicial nominees. "Extraordinary circumstances" was not defined in advance. The term was open for interpretation by each Senator, but the Republicans and Democrats would have had to agree on what it meant if any nominee were to be blocked.

On January 3, 2007, at the end of the second session of the 109th United States Congress, this agreement expired.

In the 2007-08 session of Congress, there were 112 cloture votes^[21] and some have used this number to argue an increase in the number of filibusters occurring in recent times. However, the Senate leadership has increasingly utilized cloture as a routine tool to manage the flow of business, even in the absence of any apparent filibuster. For these reasons, the presence or absence of cloture attempts cannot be taken as a reliable guide to the presence or absence of a filibuster. Inasmuch as filibustering does not depend on the use of any specific rules, whether a filibuster is present is always a matter of judgment.^[23]

On July 17, 2007, Senate Democratic leadership allowed a filibuster, on debate about a variety of amendments to the 2008 defense authorization bill,^[27] specifically the Levin-Reed amendment.^[28] The filibuster had been threatened by Republican leadership to prompt a cloture vote.

Usually proposals for constitutional amendments are not filibustered. This is because a two-thirds majority is needed to pass such a proposal, which is more than the three-fifths majority needed to invoke cloture. So usually a filibuster cannot change the outcome, because if a filibuster succeeds, the amendment proposal would not have passed anyway. However, in some cases, such as for the Federal Marriage Amendment in 2006, the Senate did vote on cloture for the proposal; when the vote on cloture failed, the proposal was dropped.

The 111th Congress again broke the record for the number of filibusters in a session, passing one-hundred cloture votes in the first eleven months.^[29] In March 2010, freshman senator Al Franken attacked the majority of the filibusters—some on matters which later passed with little controversy—as a "perversion of the filibuster".^[30]

From April to June 2010, the Senate Committee on Rules and Administration held a series of monthly public hearings entitled "Examining the Filibuster" to examine the history and use of the filibuster in the Senate.^[31] The Committee held the first such hearing, entitled "History of the Filibuster 1789-2008" on April 22.^[32] It held the second hearing, entitled "The Filibuster Today and Its Consequences", on May 19.^[33] On June 23, the Committee held the third hearing, entitled "Silent Filibusters, Holds and the Senate Confirmation Process".^[34]

On December 10, 2010, Senator Bernard Sanders, I-VT, began a "Tax Cut Filibuster" at 10:25 a.m. and finished at 6:59 p.m. later that day^[35] on the floor of the Senate. Sanders' office said the intention was to "speak as long as possible against a tax deal between the White House and congressional Republicans."^[36]

Other forms of filibuster

While talking out a measure is the most common form of filibuster in the Senate, other means of delaying and killing legislation are available. Because the Senate routinely conducts business by unanimous consent, one member can create at least some delay by objecting to the request. In some cases, such as considering a bill or resolution on the day it is introduced or brought from the House, the delay could be as long as a day.^[37] However, because the delay is a legislative day, not a calendar day, the majority can mitigate it by briefly adjourning.^[38]

In many cases, the result of an objection to a unanimous request will be the necessity of a vote. Forcing votes may not seem an effective delaying tool, but the cumulative effect of several votes, which are at least 15 minutes, can be substantial. In addition to objecting to routine requests, votes can be forced through dilatory motions to adjourn and through quorum calls. The intended purpose of a quorum call is to establish the presence of a constitutional quorum, but senators routinely use them to waste time while waiting for the next speaker to come to the floor or for leaders to negotiate off the floor. In those cases, a senator asks unanimous consent to dispense with the quorum call. If a member objects, the clerk must continue to call the roll of senators just as is done with a vote. When a call shows no quorum, the minority can force another vote by moving to request or compel the attendance of absent senators. Finally, senators can force votes by moving to adjourn or raising specious points of order and appealing the ruling of the chair.

The most effective methods of delay are those force the majority to invoke cloture multiple times on the same measure. The most common example of this is to filibuster the motion to proceed to a bill, then filibuster the bill itself. The result is to force the majority to go through the entire cloture process twice in a row. Where, as is common, the majority seeks to pass a substitute amendment to the bill, a further cloture procedure is needed for the amendment.

The Senate is particularly vulnerable to serial cloture votes when it and the House have passed different versions of the same bill and want to go to conference (i.e., appoint a special committee of both houses to merge the bills). Normally, the majority asks unanimous consent to

• Insist on its amendment or amendments (or disagree to the House's amendments);
• Request (or agree to) a conference; and
• Authorize the presiding officer to appoint conferees (members of the special committee).

However, if the minority objects, each of those motions is debatable, and therefore subject to a filibuster, and are divisible, meaning the minority can force them to be debated (and filibustered) separately.^[37] What's more, after the first two motions pass, but before the third does, senators can offer an unlimited number of motions to give the conferees non-binding instructions, which are debatable, amendable, and divisible.^[39] As a result, a determined minority could cause a great deal of delay before a conference.

See also

• Filibuster
• Obstructionism
• Cloture
• Nuclear option
• Reconciliation (United States Congress)
• Mae West hold

References