Filibuster in the U.S. Senate
Encyclopedia
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 two-thirds of those senators present and voting (as opposed to the normal three-fifths of those sworn) needing to vote to end debate. Despite this written requirement, the possibility exists that the filibuster could be changed by majority vote, using the so-called nuclear option
, also sometimes called the constitutional option by proponents.
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. 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.
Contemporary scholars point out that in practice, narrow Senate majorities were able to enact legislation. 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.
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 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.
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.
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 Senator Robert Byrd
. The filibuster ended when the Senate invoked cloture for only the second time since 1927.
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.
Finally, 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. 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.
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. The 110th Congress broke the record for cloture votes, reaching 112 at the end of 2008.
" 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.
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"). 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, specifically the Levin-Reed amendment. 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 Senate Republicans of the 111th Congress
again broke the record for the number of filibusters in a session, passing 100 cloture votes in the first eleven months. 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".
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. The Committee held the first such hearing, entitled "History of the Filibuster 1789-2008" on April 22. It held the second hearing, entitled "The Filibuster Today and Its Consequences", on May 19. On June 23, the Committee held the third hearing, entitled "Silent Filibusters, Holds and the Senate Confirmation Process".
On December 10, 2010, Senator Bernard Sanders
, I-VT, began a "Tax Cut Filibuster" at 10:25 am and finished at 6:59 pm later that day 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."
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 hold
s and reducing the amount of time given to post-cloture debate.
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
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. As a result, a determined minority could cause a great deal of delay before a conference.
Filibuster
A filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
in the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
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
Standing Rules of the United States Senate
The Standing Rules of the Senate are the rules of order adopted by the United States Senate that govern its procedure. The Senate's power to establish rules derives from Article One, Section 5 of the United States Constitution: "Each House may determine the rules of its proceedings..."There are...
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
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
under Senate Rule XXII
Standing Rules of the United States Senate, Rule XXII
Rule XXII of the Standing Rules of the United States Senate, established by the Senate Committee on Rules and Administration, governs the precedence of motions in the Senate.-Motions and pending questions:...
.
According to the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
ruling in United States v. Ballin
United States v. Ballin
United States v. Ballin, is a decision issued on February 29, 1892 by the United States Supreme Court, discussing the constitutional definition of "a quorum to do business" in Congress...
(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 two-thirds of those senators present and voting (as opposed to the normal three-fifths of those sworn) needing to vote to end debate. Despite this written requirement, the possibility exists that the filibuster could be changed by majority vote, using the so-called nuclear option
Nuclear option
In U.S. politics, the "nuclear option" allows the United States Senate to reinterpret a procedural rule by invoking the argument that the Constitution requires that the will of the majority be effective on specific Senate duties and procedures...
, also sometimes called the constitutional option by proponents.
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 BurrAaron Burr
Aaron Burr, Jr. was an important political figure in the early history of the United States of America. After serving as a Continental Army officer in the Revolutionary War, Burr became a successful lawyer and politician...
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. In 1841, a defining moment came during debate on a bill to charter the Second Bank of the United States
Second Bank of the United States
The Second Bank of the United States was chartered in 1816, five years after the First Bank of the United States lost its own charter. The Second Bank of the United States was initially headquartered in Carpenters' Hall, Philadelphia, the same as the First Bank, and had branches throughout the...
. Senator Henry Clay
Henry Clay
Henry Clay, Sr. , was a lawyer, politician and skilled orator who represented Kentucky separately in both the Senate and in the House of Representatives...
tried to end debate via majority vote. Senator William R. King
William R. King
William Rufus DeVane King was the 13th Vice President of the United States for about six weeks , and earlier a U.S. Representative from North Carolina, Minister to France, and a Senator from Alabama...
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.
Contemporary scholars point out that in practice, narrow Senate majorities were able to enact legislation. 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.
20th century and the emergence of cloture
In 1917, a rule allowing for the clotureCloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
of debate (ending a filibuster) was adopted by the Democratic
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
Senate at the urging of President Woodrow Wilson
Woodrow Wilson
Thomas Woodrow Wilson was the 28th President of the United States, from 1913 to 1921. A leader of the Progressive Movement, he served as President of Princeton University from 1902 to 1910, and then as the Governor of New Jersey from 1911 to 1913...
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
David Mayhew
David R. Mayhew is a political scientist and Sterling Professor in the Political Science Department at Yale University. He is the author of several influential books on American politics....
has argued that in actual practice, it was unclear whether a filibuster could be sustained against majority opposition.
During the 1930s, Senator Huey Long
Huey Long
Huey Pierce Long, Jr. , nicknamed The Kingfish, served as the 40th Governor of Louisiana from 1928–1932 and as a U.S. Senator from 1932 to 1935. A Democrat, he was noted for his radical populist policies. Though a backer of Franklin D...
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.
In 1946, Southern senators blocked a vote on a bill proposed by Democrat Dennis Chavez
Dennis Chavez
Dionisio "Dennis" Chavez was a Democratic politician from the U.S. State of New Mexico who served in the United States House of Representatives, and in the United States Senate from 1935 to 1962.-Early life:...
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
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
vote even though he had enough votes to pass the bill. As civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
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
Wayne Morse
Wayne Lyman Morse was a politician and attorney from Oregon, United States, known for his proclivity for opposing his parties' leadership, and specifically for his opposition to the Vietnam War on constitutional grounds....
set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands Oil legislation. Senator Strom Thurmond
Strom Thurmond
James Strom Thurmond was an American politician who served as a United States Senator. He also ran for the Presidency of the United States in 1948 as the segregationist States Rights Democratic Party candidate, receiving 2.4% of the popular vote and 39 electoral votes...
broke this record in 1957 by filibustering the Civil Rights Act of 1957
Civil Rights Act of 1957
The Civil Rights Act of 1957, , primarily a voting rights bill, was the first civil rights legislation enacted by Congress in the United States since Reconstruction following the American Civil War.Following the historic US Supreme Court ruling in Brown v...
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
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
by making a filibuster that lasted for 75 hours, which included a 14 hour and 13 minute address by Senator Robert Byrd
Robert Byrd
Robert Carlyle Byrd was a United States Senator from West Virginia. A member of the Democratic Party, Byrd served as a U.S. Representative from 1953 until 1959 and as a U.S. Senator from 1959 to 2010...
. The filibuster ended when the Senate invoked cloture for only the second time since 1927.
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
Party leaders of the United States Senate
The Senate Majority and Minority Leaders are two United States Senators who are elected by the party conferences that hold the majority and the minority respectively. These leaders serve as the chief Senate spokespeople for their parties and manage and schedule the legislative and executive...
Mike Mansfield
Mike Mansfield
Michael Joseph Mansfield was an American Democratic politician and the longest-serving Majority Leader of the United States Senate, serving from 1961 to 1977. He also served as United States Ambassador to Japan for over ten years...
and Byrd, who was at that time serving as Senate Majority Whip
Assistant party leaders of the United States Senate
The Assistant Majority and Minority Leaders of the United States Senate are the second-ranking members of the party leadership of the United States Senate....
. 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.
Finally, 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. Another type of filibuster used in the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
, the post-cloture filibuster (using points of order
Point of order
A point of order is a matter raised during consideration of a motion concerning the rules of parliamentary procedure.-Explanation and uses:A point of order may be raised if the rules appear to have been broken. This may interrupt a speaker during debate, or anything else if the breach of the rules...
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.
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. The 110th Congress broke the record for cloture votes, reaching 112 at the end of 2008.
Current U.S. practice
Budget bills are governed under special rules called "reconciliationReconciliation (United States Congress)
Reconciliation is a legislative process of the United States Senate intended to allow consideration of a budget bill with debate limited to twenty hours under Senate Rules...
" 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
Agenda (meeting)
An agenda is a list of meeting activities in the order in which they are to be taken up, by beginning with the call to order and ending with adjournment. It usually includes one or more specific items of business to be discussed. It may, but is not required to, include specific times for one or...
indefinitely, without adding anything else. Indeed, Thurmond's attempt to filibuster the Civil Rights Act of 1957
Civil Rights Act of 1957
The Civil Rights Act of 1957, , primarily a voting rights bill, was the first civil rights legislation enacted by Congress in the United States since Reconstruction following the American Civil War.Following the historic US Supreme Court ruling in Brown v...
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 RepublicanRepublican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
senators led by Senate Majority Leader Bill Frist
Bill Frist
William Harrison "Bill" Frist, Sr. is an American physician, businessman, and politician. He began his career as an heir and major stockholder to the for-profit hospital chain of Hospital Corporation of America. Frist later served two terms as a Republican United States Senator representing...
, responding to the Democrats' threat to filibuster some judicial nominees of President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
to prevent a vote on the nominations, floated the idea of having Vice President Dick Cheney
Dick Cheney
Richard Bruce "Dick" Cheney served as the 46th Vice President of the United States , under George W. Bush....
, 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"). Senator Trent Lott
Trent Lott
Chester Trent Lott, Sr. , is a former United States Senator from Mississippi and has served in numerous leadership positions in the House of Representatives and the Senate....
, the junior Republican senator from Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
, had named the plan the "nuclear option
Nuclear option
In U.S. politics, the "nuclear option" allows the United States Senate to reinterpret a procedural rule by invoking the argument that the Constitution requires that the will of the majority be effective on specific Senate duties and procedures...
." 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
Gang of 14
The Gang of 14 was a term coined to describe the bipartisan group of Senators in the 109th United States Congress who successfully negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called nuclear option over an organized use of the filibuster by Senate...
, 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
Priscilla Owen
Priscilla Richman Owen is a federal judge on the United States Court of Appeals for the Fifth Circuit. She was previously a Justice on the Texas Supreme Court.-Early life:...
, Janice Rogers Brown
Janice Rogers Brown
Janice Rogers Brown is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. She previously was an Associate Justice of the California Supreme Court, holding that post from May 2, 1996 until her appointment to the D.C. Circuit.President George W. Bush...
, and William H. Pryor, Jr.
William H. Pryor, Jr.
William Holcombe "Bill" Pryor, Jr. is a federal judge on the United States Court of Appeals for the Eleventh Circuit. Previously, he was the Attorney General of the State of Alabama from 1997 to 2004.-Background:...
, 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
109th United States Congress
The One Hundred Ninth United States Congress was the legislative branch of the United States, composed of the United States Senate and the United States House of Representatives, from January 3, 2005 to January 3, 2007, during the fifth and sixth years of George W. Bush's presidency. House members...
, 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, specifically the Levin-Reed amendment. The filibuster had been threatened by Republican leadership to prompt a cloture
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
vote.
Usually proposals for constitutional amendments
Article Five of the United States Constitution
Article Five of the United States Constitution describes the process whereby the Constitution may be altered. Altering the Constitution consists of proposing an amendment and subsequent ratification....
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
Federal Marriage Amendment
The Federal Marriage Amendment H.J. Res. 56 was a proposed amendment to the United States Constitution which would have limited marriage in the United States to unions of one man and one woman...
in 2006, the Senate did vote on cloture for the proposal; when the vote on cloture failed, the proposal was dropped.
The Senate Republicans of the 111th Congress
111th United States Congress
The One Hundred Eleventh United States Congress was the meeting of the legislative branch of the United States federal government from January 3, 2009 until January 3, 2011. It began during the last two weeks of the George W. Bush administration, with the remainder spanning the first two years of...
again broke the record for the number of filibusters in a session, passing 100 cloture votes in the first eleven months. In March 2010, freshman senator Al Franken
Al Franken
Alan Stuart "Al" Franken is the junior United States Senator from Minnesota. He is a member of the Minnesota Democratic-Farmer-Labor Party, which affiliates with the national Democratic Party....
attacked the majority of the filibusters—some on matters which later passed with little controversy—as a "perversion of the filibuster".
From April to June 2010, the Senate Committee on Rules and Administration
United States Senate Committee on Rules and Administration
The Senate Committee on Rules and Administration is responsible for the rules of the United States Senate, with administration of congressional buildings, and with credentials and qualifications of members of the Senate, including responsibility for dealing with contested elections.The committee...
held a series of monthly public hearings entitled "Examining the Filibuster" to examine the history and use of the filibuster in the Senate. The Committee held the first such hearing, entitled "History of the Filibuster 1789-2008" on April 22. It held the second hearing, entitled "The Filibuster Today and Its Consequences", on May 19. On June 23, the Committee held the third hearing, entitled "Silent Filibusters, Holds and the Senate Confirmation Process".
On December 10, 2010, Senator Bernard Sanders
Bernie Sanders
Bernard "Bernie" Sanders is the junior United States Senator from Vermont. He previously represented Vermont's at-large district in the United States House of Representatives...
, I-VT, began a "Tax Cut Filibuster" at 10:25 am and finished at 6:59 pm later that day 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."
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 hold
Secret hold
In the United States Senate, a hold is a parliamentary procedure permitted by the Standing Rules of the United States Senate which allows one or more Senators to prevent a motion from reaching a vote on the Senate floor....
s and reducing the amount of time given to post-cloture debate.
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.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
- 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. As a result, a determined minority could cause a great deal of delay before a conference.
See also
- FilibusterFilibusterA filibuster is a type of parliamentary procedure. Specifically, it is the right of an individual to extend debate, allowing a lone member to delay or entirely prevent a vote on a given proposal...
- ObstructionismObstructionismObstructionism is the practice of deliberately delaying or preventing a process or change, especially in politics.-As workplace aggression:An obstructionist causes problems. Neuman and Baron identify obstructionism as one of the three dimensions that encompass the range of workplace aggression...
- ClotureClotureIn parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
- Nuclear optionNuclear optionIn U.S. politics, the "nuclear option" allows the United States Senate to reinterpret a procedural rule by invoking the argument that the Constitution requires that the will of the majority be effective on specific Senate duties and procedures...
- Reconciliation (United States Congress)Reconciliation (United States Congress)Reconciliation is a legislative process of the United States Senate intended to allow consideration of a budget bill with debate limited to twenty hours under Senate Rules...
- Mae West hold
- Mr. Smith Goes To WashingtonMr. Smith Goes to WashingtonMr. Smith Goes to Washington is a 1939 American drama film starring Jean Arthur and James Stewart about one man's effect on American politics. It was directed by Frank Capra and written by Sidney Buchman, based on Lewis R. Foster's unpublished story. Mr...
(a filibuster is a major plot element in the film)