Filibuster in the United States Senate
1
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"[] (usually 60 out of 100 senators) brings debate to a close by
invoking cloture under Senate Rule XXII.
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, with the
votes of two-thirds of those senators present and voting (as opposed to the normal three-fifths of those sworn)
needed to end debate.[] Despite this written requirement, the possibility exists that the Senate's presiding officer
could on motion declare a Senate rule unconstitutional, which decision can be upheld by a simple majority vote of
the Senate.
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.[] In 1806, the Senate agreed, recodifying
its rules, and thus the potential for a filibuster sprang into being.[] 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.[1]
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.[]
Modern scholars point out that in practice, narrow Senate majorities would be able to enact legislation, by changing
the rules, but only on the 1st day of the session in January or March.[2] This could be done if the minority used it to
prevent, instead of merely to delay, votes on measures supported by a bare majority.[2]
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[] at the
urging of President Woodrow Wilson[] after a group of 12 anti-war senators managed to kill a bill that would have
allowed 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.[3] Despite the formal requirement, however, political
scientist David Mayhew has argued that in actual practice, it was unclear whether a filibuster could be sustained
Filibuster in the United States Senate
3
against majority opposition.[4]
During the 1930s, Senator Huey Long used the filibuster to promote his liberal policies. The Louisiana senator
recited Shakespeare and read out recipes for "pot-likkers" during his filibusters, one of which occupied 15 hours of
"debate".[]
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.[]
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,[] although the bill ultimately passed. In 1959, the Senate restored the cloture
threshold to two-thirds of those voting.[]
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 Democrat Senator Robert Byrd. The filibuster ended when the
Senate invoked cloture for only the second time since 1927.[5]
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.[6][7][8][9][10][11]
In 1975 the Democratic-controlled Senate[] 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.[12][13] The Senate experimented with a rule to remove the need to speak on the floor to filibuster ("talking
filibuster"), thus allowing for "virtual filibusters".[14] 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.[15][16][17]
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.[] A motion for cloture is filed not
only to overcome filibusters in progress, but also to preempt ones that
are only anticipated.[] In the 1960s, no Senate term had more than
seven votes on cloture.[] 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.[][18] The 110th Congress broke the record for cloture votes,
reaching 112 at the end of 2008.[19]
Cloture Voting, United States Senate, 1947 to
[]
2008.
Filibuster in the United States Senate
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 Lyndon B. Johnson 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.[]
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.[]
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").[20] 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[] 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.[]
On July 17, 2007, Senate Democratic leadership allowed a filibuster, on debate about a variety of amendments to the
2008 defense authorization bill,[21] specifically the Levin-Reed amendment.[22] The filibuster had been threatened by
Republican leadership to prompt a cloture vote.[citation needed]
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
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Filibuster in the United States Senate
cloture for the proposal; when the vote on cloture failed, the proposal was dropped.[citation needed]
In December 2009, Senator Sheldon Whitehouse claimed there were over 100 filibusters and acts of obstruction
during the 111th Congress.[23] 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".[24]
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.[25] The
Committee held the first such hearing, entitled "History of the Filibuster 1789–2008" on April 22.[26] It held the
second hearing, entitled "The Filibuster Today and Its Consequences", on May 19.[27] On June 23, the Committee
held the third hearing, entitled "Silent Filibusters, Holds and the Senate Confirmation Process".[28]
On December 10, 2010, Independent democratic socialist Senator Bernard Sanders of Vermont began a "Tax Cut
Filibuster" at 10:25 am and finished at 6:59 pm later that day[29] 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."[30]
In response to the use of the filibuster in the 111th Congress, all Democratic senators returning to the 112th
Congress, signed a petition to Senate Majority Leader Harry Reid, requesting that the filibuster be reformed,
including abolishing secret holds and reducing the amount of time given to post-cloture debate.
On December 6, 2012, Senator Mitch McConnell (R-KY), Senate Minority Leader, became the first senator to
filibuster his own proposal. Without giving a lengthy speech, he invoked the rules of filibuster on his bill to raise the
passage threshold to 60 votes. McConnell had attempted to force the opposition Democrats, who had a majority in
the Senate, to refuse to pass what would have been a politically costly measure, but one that would nonetheless solve
the current ongoing debt ceiling deadlock. When Senate Majority Leader Harry Reid (D-NV) chose to call a vote on
the proposal regardless, McConnell immediately invoked the rules of filibusters on his own proposal, effectively
doing the first self-filibuster in Senate history.[31]
At the conclusion of the 112th Congress, the Senate debated filibuster reform. Negotiations on changes to the rules
for filibustering were set to take place during January 2013.[32]
On March 6, 2013, Senator Rand Paul launched a talking filibuster to stall John Brennan's nomination confirmation
vote for the position of Director of the CIA,[] demanding an answer from the Obama Administration to the question:
"Should a President be allowed to target, and kill an American by drone attack, on American soil, without due
process?"[33][34] John Brennan was considered to be the main architect of the drone program.[] After 12 hours and 52
minutes of talking, it became the 9th longest filibuster in U.S. history.[35]
Negotiations between the two parties resulted in two packages of amendments to the rules on filibusters being
approved by the Senate on January 25, 2013.[] Changes to the standing orders affecting just the 2013-14 Congress
were passed by a vote of 78 to 16, allowing the Senate majority leader to prohibit a filibuster on a motion to begin
consideration of a bill.[] Changes to the permanent Senate rules were passed by a vote of 86 to 9.[] The changes
occurred through Senate Resolution 15 and Senate Resolution 16; Senate Resolution 15 applies only to the 113th
session, while Senate Resolution 16 changed two standing rules of the Senate.[36]
The series of changes to the filibuster rules announced represented a compromise between the major reforms put
forward by some Democratic senators and the changes preferred by Republican senators.[] Those seeking reform,
including Democrats and liberal interest groups, had originally proposed a variety of strong reforms including:
ending the filibuster completely; banning the use of filibusters on the motion to proceed; re-introducing the "talking
filibuster" where the minority would have to remain on the Senate floor and speak in order to impede passage of a
vote; banning the use of filibusters on House-Senate conferences; and forcing the minority to produce 41 votes in
order to block cloture.[][] These more extensive reforms of the filibuster could only have been implemented by a
decision from the Senate's presiding officer declaring it unconstitutional.
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Filibuster in the United States Senate
The new rules remove the requirement of 60 votes in order to begin debate on legislation and allow the minority two
amendments to measures that reach the Senate floor, a change implemented as a standing order that expires at the
end of the current term.[][] In the new rules, the amount of time to debate following a motion to proceed has been
reduced from 30 hours to four. Additionally, a filibuster on the motion to proceed will be blocked if a petition is
signed by eight members of the minority, including the minority leader.[] For district court nominations, the new
rules reduce the required time before the nominee is confirmed after cloture from 30 hours to two hours.[] Under the
new rules, if senators wish to block a bill or nominee after the motion to proceed, they will need to be present in the
Senate and debate.[][] Following the changes, 60 votes are still required to overcome a filibuster to pass legislation
and confirm nominees and the "silent filibuster"—where senators can filibuster even if they leave the
floor—remained in place.[][]
Following the announcement of the new rules, Senator Dick Durbin, who was involved in the negotiations, stated
that the deal reached was true agreement between the majority and minority leaders, and was overwhelmingly
supported by Senate Democrats.[] However, the agreement was negatively received by liberal interest groups
including CREDO,[] Fix the Senate Now, a coalition of approximately 50 progressive and labor organizations, and
the Progressive Change Campaign Committee, both of whom had advocated for eliminating the "silent filibuster" on
the grounds that it allows Republicans to filibuster progressive bills.[] Liberal independent Senator Bernie Sanders
argued that the requirement for 60 votes to pass legislation makes it "impossible" to deal with the crises faced by the
United States.[] Conservatives also criticized the reforms, arguing that the changes negatively impacted the minority
party. In particular, Heritage Action for America argued that reducing the length of time for debate allows senior
lawmakers to "avoid accountability". Additionally, Senator Rand Paul criticized the rules change for limiting the
"ability of Senators to offer amendments".[]
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.[] However, because the delay is a
legislative day, not a calendar day, the majority can mitigate it by briefly adjourning.[37]
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 that 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
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Filibuster in the United States Senate
• 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.[] 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.[38] As a result, a determined
minority could cause a great deal of delay before a conference.
References
[2] Discussing
[11] Note: Senator Robert C. Byrd wrote in 1980 that he and Senator Mike Mansfield instituted the "two-track system" in the early 1970s with
the approval and cooperation of Senate Republican leaders while he was serving as Senate Majority Whip. ().
[14] Understanding the Filibuster: Purpose and History of the Filibuster (http:/ / www. nolabels. org/ understanding-filibuster). No Labels.
[36] Rybicki E. (2013). Changes to Senate Procedures in the 113th Congress Affecting the Operation of Cloture (S.Res. 15 and S.Res. 16) (http:/
/ www. fas. org/ sgp/ crs/ misc/ R42996. pdf). Congressional Research Service.
[37] to S1821, where a brief adjournment was used for a similar reason.
[38] Riddick's Senate Procedure (http:/ / www. gpoaccess. gov/ riddick/ 449-493. pdf), "Instruction of Conferees", p. 479.
7
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