Filibuster in the United States Senate
A filibuster is a tactic used in the United States Senate to delay or block a vote on a measure by preventing debate on it from ending. The Senate's rules place few restrictions on debate. In general, if no other senator is speaking, a senator who seeks recognition is entitled to speak for as long as they wish. Only when debate concludes, whether naturally or using cloture, can the measure be put to a vote.
Rule XXII of the Standing Rules of the United States Senate allows the Senate to vote to limit debate by invoking cloture on the pending question. In most cases this requires a majority of three-fifths of the senators duly chosen and sworn, so a minority of senators can block a measure, even if it has the support of a simple majority.
Once cloture has been invoked, in most cases debate can continue for a further 30 hours, and most major bills are subject to two or three filibusters before the Senate can vote on passage. Even bills supported by 60 or more senators may therefore be delayed by a filibuster. A filibuster can also be conducted through the use of other delay tactics, such as proposing amendments or making motions.
Throughout the Senate's history, senators have frequently made efforts to curtail the use of the Senate's filibuster. Notably, in 2013 and 2017, the Senate used the nuclear option to set a series of precedents that reduced the threshold for cloture on nominations to a simple majority. Since then, nominations can be confirmed without the support of 60 senators, though they may nonetheless be delayed by a filibuster. A number of rulemaking statutes have been enacted to limit the scope of the filibuster by imposing an automatic time limit on Senate debate of certain questions. These include the Congressional Budget Act of 1974, the Congressional Review Act and the District of Columbia Home Rule Act. Since debate on such measures ends without cloture being invoked, they are not subject to the 60-vote threshold.
History
Constitutional design
Only five supermajority requirements were explicitly included in the original United States Constitution, including conviction on impeachment, agreeing to a resolution of advice and consent to ratification of a treaty, expelling a member of Congress, overriding presidential vetoes, and proposing constitutional amendments. Through negative textual implication, the Constitution also gives a simple majority the power to set procedural rules.In Federalist No. 22, Alexander Hamilton described supermajority requirements as being one of the main problems with the previous Articles of Confederation, and identified several evils which would result from such a requirement:
Early use of the filibuster
Originally, the Senate's rules did not provide for a procedure for the Senate to vote to end debate on a question so that it could be voted on, which opened the door to filibusters. Indeed, a filibuster took place at the very first session of the Senate. On September 22, 1789, Senator William Maclay wrote in his diary that the "design of the Virginians was to talk away the time, so that we could not get the bill passed."Although between 1789 and 1806 the Senate's rules provided for a motion for the previous question, this motion was itself debatable, so its effectiveness as a cloture mechanism was limited. Rather, it was used by the Senate to reverse its decision to consider a measure, much like today's motion to postpone. Beginning in 1811, the House of Representatives set a series of precedents to make the previous question a way of limiting debate. Throughout the 19th century, some senators unsuccessfully attempted to introduce this version of the previous question into the Senate's rules.
During most of the pre–Civil War period, the filibuster was seldom used to block measures, as northern senators desired to maintain southern support over fears of disunion and secession, and made compromises over slavery in order to avoid confrontation with new states admitted to the Union in pairs to preserve the sectional balance in the Senate, most notably in the Missouri Compromise of 1820.
One of the early notable filibusters occurred in 1837 when a group of Whig senators filibustered to prevent allies of the Democratic President Andrew Jackson from expunging a resolution of censure against him. In 1841, a defining moment came during a filibuster on a bill to charter a new national bank. After Whig Senator Henry Clay proposed a rules change to limit debate, Democratic Senator William R. King threatened an even longer filibuster, saying that Clay "may make his arrangements at his boarding house for the winter". Other senators sided with King, and Clay backed down.
Narciso Lopez filibustering expeditions to Cuba in the 1850s set the context for the word to employed to connote legislative obstruction on the floor of the US Congress, the word first used in this sense on 3 January 1853. In a debate on Cuba, a Democrat, Abraham Venable of North Carolina, denounced filibusters as freebooters who were transforming the United States into "a nation of buccaneers" and the "brigands of the world". Venable crossed party lines to endorse the Whig position of nonintervention, although he argued that should Spain relinquish Cuba the US could acquire it, "but the acquisition should not be achieved through filibustering"
193).
The emergence of cloture (1917–1969)
In 1917, during World War I, at the urging of President Woodrow Wilson, the Senate adopted a rule by a vote of 76–3 to allow cloture to be used to limit debate on a measure. This took place after a group of twelve 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.Under the new rule, at any time while a measure was pending, a senator could present a cloture motion signed by 16 senators. One hour after the Senate convened on the second calendar day of session following the filing of the cloture motion, the business then pending would be set aside, and the presiding officer would put to the Senate the question, "Is it the sense of the Senate that the debate shall be brought to a close?" If two-thirds of senators present and voting voted in favor of cloture, the measure would become unfinished business to the exclusion of all other business; no dilatory motions or amendments would be allowed; all amendments would be required to have been submitted before the cloture vote; and each senator would be limited to one hour of debate.
The first cloture vote occurred in 1919 to end debate on the Treaty of Versailles. Although cloture was invoked, the treaty was then rejected against the wishes of the cloture rule's first champion, President Wilson. In the 1930s, Senator Huey Long of Louisiana used long filibusters to promote his populist policies. He recited Shakespeare and read out recipes for "pot-likkers" during one of his filibusters, which occupied 15 hours of debate.
In 1946, five Democratic senators, John H. Overton, Richard Russell Jr., Millard Tydings, Clyde R. Hoey and Kenneth McKellar, filibustered a bill proposed by Democrat Dennis Chávez that would have created a permanent Fair Employment Practice Committee to prevent discrimination in the workplace. The filibuster lasted weeks, and Senator Chávez was forced to remove the bill from consideration after a failed cloture vote, even though a majority of senators supported the bill.
In 1949, in response to filibusters of amendments to the Journal and motions to proceed to the consideration of bills, the cloture rule was amended to allow cloture to be filed on "any measure, motion, or other matter pending before the Senate, or the unfinished business". The Senate simultaneously made invoking cloture more difficult by requiring two-thirds of senators duly chosen and sworn to vote in favor of a cloture motion. Future proposals to change the Senate rules were specifically exempted from being subject to cloture.
In 1953, Senator Wayne Morse set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands oil legislation. Then-Democratic senator Strom Thurmond of South Carolina broke this record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes, during which he read laws from different states and recited George Washington's farewell address in its entirety, although the bill ultimately passed.
In 1959, anticipating more civil rights legislation, the Senate, under the leadership of Majority Leader Lyndon B. Johnson, restored the cloture threshold to two-thirds of senators present and voting. Although the 1949 rule had eliminated cloture on rules changes themselves, the resolution was not successfully filibustered. On January 5, 1959, the resolution was agreed to by a 72–22 vote. The 1959 change also eliminated the 1949 exemption for amendments to the rules, allowing cloture to once again be invoked on future changes.
One of the most notable filibusters of the 1960s occurred when southern Democrats attempted to block the passage of the Civil Rights Act of 1964 by filibustering for a continuous 75 hours, including a 14-hour-and-13-minute address by Senator Robert Byrd of West Virginia. After 60 days of consideration of the bill, cloture was invoked by a 71–29 vote on June 10, 1964. This was only the second successful cloture vote since 1927.
From 1917 to 1970, the Senate took a cloture vote nearly once a year, on average. During this time, there were 49 cloture votes.
The two-track system, 60-vote rule and rise of the routine filibuster (1970 onward)
In 1972, after a series of filibusters in the 1960s over civil-rights legislation, the Senate began to use a two-track system introduced under the leadership of Majority Leader Mike Mansfield and Majority Whip Robert Byrd. Before this system was introduced, a filibuster would stop the Senate from moving on to any other legislative activity. Tracking allows the Senate, by unanimous consent, to set aside the measure being filibustered and consider other business. If no senator objects, the Senate can have two or more pieces of legislation or nominations pending on the floor simultaneously by designating specific periods during the day when each one will be considered.The notable side effect of this change was that by no longer bringing Senate business to a complete halt, filibusters became politically easier for the minority to sustain. As a result, the number of filibusters began increasing rapidly, eventually leading to the modern era in which an effective supermajority requirement exists to pass legislation, with no practical requirement that the minority party actually hold the floor or extend debate.
Since then, a measure could be delayed simply by a senator placing a hold on it. In this case, the leadership will generally not attempt to advance the measure unless cloture is invoked on it, usually by a 60-vote majority. In particular, as a courtesy to senators who have holds on a bill or nomination, senators generally suggest the absence of a quorum after they finish their speeches, which has the effect of preventing the presiding officer from putting the pending question to the Senate, even though no senator seeks recognition. This is commonly regarded as the "silent filibuster."
In 1975, the Senate revised its cloture rule so that three-fifths of senators duly chosen and sworn could limit debate, except for measures amending the Standing Rules, on which a two-thirds majority of those present and voting is still needed to invoke cloture. By returning to an absolute number of all senators, rather than a proportion of those present and voting, the change made any filibusters easier to sustain on the floor by a small number of senators from the minority party, without requiring the presence of their minority colleagues. This further reduced the majority's leverage to force an issue through extended debate.
In 1977, during a filibuster on the Natural Gas Policy Act, the Senate set a series of precedents to restrict filibusters after cloture has been invoked. For instance, the Senate held that if cloture has been invoked on a measure, the presiding officer must take the initiative in ruling nongermane amendments out of order.
At first, the only effect of cloture on the time available for debate was to limit each senator to one hour of debate. In 1979, the Senate imposed a 100-hour limit on the total time available for consideration of a clotured measure. The tactic of using points of order to delay legislation because they were not counted as part of the limited time allowed for debate was rendered ineffective by this rule change. In 1986, this time limit was reduced to 30 hours.
Generally, motions to proceed are debatable and can be filibustered. However, on March 5, 1980, the Senate voted 54–38 against sustaining a decision of the chair, and thus set a precedent that a nondebatable motion to proceed to executive session to consider a specific nomination is in order. Therefore, nominations can now be brought up without the threat of a filibuster on the motion to proceed.