What Is a Filibuster, And Why Is It Such A Big Deal?

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The United States Senate has a long and storied tradition of extended debate. Yet in a misguided effort to make it easier for the majority to shut down debate, leaders from both major political parties have flirted with eliminating the Senate filibuster. This would be unwise. Any rule that makes it easier for Senate leaders to end debate and block the amendment process will lead to less transparency, rushed debate, and a diminution of Senators’ rights to participate in the legislative process.

filibuster is a parliamentary procedure used in the United States Senate to prevent a measure from being brought to a vote. The most common form of filibuster occurs when one or more senators attempt to delay or block a vote on a bill by extending debate on the measure. The filibuster is permitted by Rule 22 of the Senate Rules.[1] Traditionally, Senators have enjoyed the right to unlimited debate on legislation or a nomination unless the Senate votes to end debate. Rule 22 thus empowers ordinary Senators to make their voices heard and guarantees them the opportunity to offer amendments during Senate floor debates. The Senate 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” (currently 60 out of 100) vote to bring the debate to a close by invoking cloture under Senate Rule XXII.

The ability to block a measure through extended debate was a side effect of an 1806 rule change, and was infrequently used during much of the 19th and 20th centuries. In 1970, the Senate adopted a “two-track” procedure to prevent filibusters from stopping all other Senate business. The minority then felt politically safer in threatening filibusters more regularly, which became normalized over time to the point that 60 votes are now required to end debate on nearly every controversial legislative item. As a result, “the contemporary Senate has morphed into a 60-vote institution — the new normal for approving measures or matters — a fundamental transformation from earlier years”.

Efforts to limit the practice include laws that explicitly limit the time for Senate debate, notably the Congressional Budget and Impoundment Control Act of 1974 that created the budget reconciliation process. Changes in 2013 and 2017 now require only a simple majority to invoke cloture on nominations, although most legislation still requires 60 votes.

At times, the “nuclear option” has been proposed to eliminate the 60 vote threshold for certain matters before the Senate. The nuclear option is a parliamentary procedure that allows the Senate to override one of its standing rules, including the 60-vote rule to close debate, by a simple majority (51 votes if the Senators are equally divided and all 100 Senators are present – the Vice President casting the tie-breaking vote), rather than the two-thirds supermajority normally required to amend the rules.

One or more senators may still occasionally hold the floor for an extended period, sometimes without the advance knowledge of the Senate leadership. However, these “filibusters” usually result only in brief delays and do not determine outcomes, since the Senate’s ability to act ultimately depends upon whether there are sufficient votes to invoke cloture and proceed to a final vote on passage. However, such brief delays can be politically relevant when exercised shortly before a major deadline (such as avoiding a government shutdown) or before a Senate recess.

Accidental creation and early use of the filibuster

In 1789, the first U.S. Senate adopted rules allowing senators to move the previous question (by simple majority vote), which meant ending debate and proceeding to a vote. But Vice President Aaron Burr argued that the previous-question motion was redundant, had only been exercised once in the preceding four years, and should be eliminated, which was done in 1806, after he left office. The Senate agreed and modified its rules. Because it created no alternative mechanism for terminating debate, filibusters became theoretically possible.

Nevertheless, in the early 19th century the principle of simple-majority voting in the Senate was well established, and particularly valued by Southern slave-holding states. New states were admitted to the Union in pairs to preserve the sectional balance in the Senate, most notably in the Missouri Compromise of 1820.

Until the late 1830s, however, the filibuster remained a solely theoretical option, never actually exercised. The first Senate filibuster occurred in 1837. In 1841, a defining moment came during debate on a bill to charter a new national bank. Senator Henry Clay tried to end the debate via majority vote, and 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.

At the time, both the Senate and the House of Representatives allowed filibusters as a way to prevent a vote from taking place. Subsequent revisions to House rules limited filibuster privileges in that chamber, but the Senate continued to allow the tactic.

In practice, narrow majorities could enact legislation by changing the Senate rules, but only on the first day of the session in January or March.

The emergence of cloture (1917–1969)

Headline in The Philadelphia Inquirer of November 16, 1919, reporting the first use of cloture by the United States Senate

In 1917, during World War I, a rule allowing cloture of a debate was adopted by the Senate on a 76–3 roll call vote 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.

Rule 19 recognizes Senators’ right to debate:

When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.

This rule allows a Senator to request recognition by the chair of the Senate to engage in extended debate. To start the process of ending debate, 16 Senators present a motion to invoke cloture or end debate. A Congressional Research Service report summarized the cloture process:

Senate Rule XXII…known as the “cloture rule,” enables Senators to end a filibuster on any debatable matter the Senate is considering. Sixteen Senators initiate this process by presenting a motion to end the debate. The Senate does not vote on this cloture motion until the second day of session after the motion is made. Then, for most matters, it requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture….

The primary effect of invoking cloture on a question is to impose a maximum of 30 additional hours for considering that question. This 30-hour period for consideration encompasses all time consumed by roll call votes, quorum calls, and other actions, as well as the time used for debate. During this 30-hour period, in general, no Senator may speak for more than one hour…. Under cloture, as well, the only amendments that Senators can offer are amendments that are germane and that were submitted in writing before the cloture vote took place.

From 1917 to 1949, the requirement for cloture was two-thirds of senators voting. Despite that formal requirement, however, political scientist David Mayhew has argued that in practice, it was unclear whether a filibuster could be sustained against majority opposition. The first cloture vote occurred in 1919 to end debate on the Treaty of Versailles, leading to the treaty’s rejection against the wishes of the cloture rule’s first champion, President Wilson. During the 1930s, Senator Huey Long of Louisiana used the filibuster to promote his populist policies. He recited Shakespeare and read out recipes for “pot-likkers” during his filibusters, which occupied 15 hours of debate. In 1946, five southern Democrats — senators John H. Overton (LA), Richard B. Russell (GA), Millard E. Tydings (MD), Clyde R. Hoey (NC), and Kenneth McKellar (TN) — blocked a vote on a bill (S. 101) proposed by Democrat Dennis Chávez of New Mexico that would have created a permanent Fair Employment Practice Committee (FEPC) 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 he had enough votes to pass the bill.

In 1949, the Senate made invoking cloture more difficult by requiring two-thirds of the entire Senate membership to vote in favor of a cloture motion. Moreover, future proposals to change the Senate rules were themselves specifically exempted from being subject to cloture. In 1953, Senator Wayne Morse of Oregon 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 Johnson restored the cloture threshold to two-thirds of those voting. Although the 1949 rule had eliminated cloture on rules changes themselves, Johnson acted at the very beginning of the new Congress on January 5, 1959, and the resolution was adopted by a 72–22 vote with the support of three top Democrats and three of the four top Republicans. The presiding officer, Vice President Richard Nixon, supported the move and stated his opinion that the Senate “has a constitutional right at the beginning of each new Congress to determine rules it desires to follow”. The 1959 change also eliminated the 1949 exemption for rules changes, 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 75 hours, including a 14-hour and 13 minute address by Senator Robert Byrd of West Virginia. The filibuster failed when the Senate successfully invoked cloture for only the second time since 1927.

From 1917 to 1970, the Senate took a cloture vote nearly once a year (on average); during this time, there were a total of 49 cloture votes.

The two-track system, 60-vote rule and rise of the routine filibuster (1970 onward)

After a series of filibusters in the 1960s over civil rights legislation, the Senate put a “two-track system” into place in 1970 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 majority leader—with unanimous consent or the agreement of the minority leader—to have more than one main motion pending on the floor as unfinished business. Under the two-track system, 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 on particular motions 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.

In 1975, the Senate revised its cloture rule so that three-fifths of sworn senators (60 votes out of 100) could limit debate, except for changing Senate rules which still requires a two-thirds majority of those present and voting to invoke cloture. However, by returning to an absolute number of all Senators (60) rather than a proportion of those present and voting, the change also 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.

The Senate also experimented with a rule that removed the need to speak on the floor in order to filibuster, thus allowing for “virtual filibusters”. Another tactic, the post-cloture filibuster—which used points of order to delay legislation because they were not counted as part of the limited time allowed for debate—was rendered ineffective by a rule change in 1979.

As the filibuster has evolved from a rare practice that required holding the floor for extended periods into a routine 60-vote supermajority requirement, Senate leaders have increasingly used cloture motions as a regular tool to manage the flow of business, often even in the absence of a threatened filibuster. Thus, the presence or absence of cloture attempts is not necessarily a reliable indicator of the presence or absence of a threatened filibuster. Because filibustering does not depend on the use of any specific rules, whether a filibuster is present is always a matter of judgment.

Exceptions

The only bills that are not currently subject to effective 60-vote requirements are those considered under provisions of law that limit time for debating them. These limits on debate allow the Senate to hold a simple-majority vote on final passage without obtaining the 60 votes normally needed to close debate. As a result, many major legislative actions in recent decades have been adopted through one of these methods, especially reconciliation.

Budget reconciliation

Budget reconciliation is a procedure created in 1974 as part of the congressional budget process. In brief, the annual budget process begins with adoption of a budget resolution (passed by simple majority in each house, not signed by President, does not carry force of law) that sets overall funding levels for the government. The Senate may then consider a budget reconciliation bill, not subject to filibuster, that reconciles funding amounts in any annual appropriations bills with the amounts specified in the budget resolution. However, under the Byrd rule no non-budgetary “extraneous matter” may be considered in a reconciliation bill. The presiding officer, relying always (as of 2017) on the opinion of the Senate parliamentarian, determines whether an item is extraneous, and a 60-vote majority is required to include such material in a reconciliation bill.

Trade promotion authority

Beginning in 1975 with the Trade Act of 1974, and later through the Trade Act of 2002 and the Trade Preferences Extension Act of 2015, Congress has from time to time provided so-called “fast track” authority for the President to negotiate international trade agreements. After the President submits an agreement, Congress can then approve or deny the agreement, but cannot amend it nor filibuster. On the House and Senate floors, each body can debate the bill for no more than 20 hours, thus the Senate can act by simple majority vote once the time for debate has expired.

Congressional Review Act

The Congressional Review Act, enacted in 1995, allows Congress to review and repeal administrative regulations adopted by the Executive Branch within 60 legislative days. This procedure will most typically be used successfully shortly after a party change in the presidency. It was used once in 2001 to repeal an ergonomics rule promulgated under Bill Clinton, was not used in 2009, and was used 14 times in 2017 to repeal various regulations adopted in the final year of the Barack Obama presidency.

The Act provides that a rule disapproved by Congress “may not be reissued in substantially the same form” until Congress expressly authorizes it. However, CRA disapproval resolutions require only 51 votes while a new authorization for the rule would require 60 votes. Thus, the CRA effectively functions as a “one-way ratchet” against the subject matter of the rule in question being re-promulgated, such as by the administration of a future President of the opposing party.

National Emergencies Act

The National Emergencies Act, enacted in 1976, formalizes the emergency powers of the President. The law requires that when a joint resolution to terminate an emergency has been introduced, it must be considered on the floor within a specified number of days. The time limitation overrides the normal 60-vote requirement to close debate, and thereby permits a joint resolution to be passed by a simple majority of both the House and Senate. As originally designed, such joint resolutions were not subject to presidential veto. However, following the Supreme Court’s decision in INS v. Chadha (1983) which ruled that the legislative veto was unconstitutional, Congress revised the law in 1985 to make the joint resolutions subject to presidential veto.

War Powers Resolution

The War Powers Resolution, enacted in 1973 over Richard Nixon‘s veto, generally requires the President to withdraw troops committed overseas within 60 days, which the President may extend once for 30 additional days, unless Congress has declared war, otherwise authorized the use of force, or is unable to meet as a result of an armed attack upon the United States. Both the House and Senate must vote on any joint resolution authorizing forces, or requiring that forces be removed, within a specified time period, thus establishing a simple-majority threshold in the Senate.

The modern-era filibuster — and the effective 60-vote supermajority requirement it has led to — have had significant policy and political effects on all three branches of the federal government.

Congress

The supermajority rule has made it very difficult, often impossible, for Congress to pass any but the most non-controversial legislation in recent decades. The amount of bills passed by the Senate has cratered: in the 85th Congress in 1957-59, over 25% of all bills introduced in the Senate were eventually passed into law; by 2005, that number had fallen to 12.5%, and by 2010, only 2.8% of introduced bills became law—a 90% decline from 50 years prior. During times of unified party control, majorities have attempted (with varying levels of success) to enact their major policy priorities through the budget reconciliation process, resulting in legislation constrained by more narrow, budgetary rules (e.g. any legislation that includes provisions on social security may be filibustered, so the Senate cannot address it). Meanwhile, public approval for Congress as an institution has fallen to its lowest levels ever, with large segments of the public seeing the institution as ineffective. Shifting majorities of both parties – and their supporters – have often been frustrated as major policy priorities articulated in political campaigns are unable to obtain passage following an election. Famously, despite the Democratic Party holding a substantial majority in the 111th Congress, the “public option” provision in the Affordable Care Act was removed because one Senator – Joe Lieberman of Connecticut – threatened to filibuster the bill if it remained.

Presidency

Presidents of both parties have increasingly filled the policymaking vacuum with expanded use of executive power, including executive orders in areas that had traditionally been handled through legislation. For example, Barack Obama effected major changes in immigration policy by issuing work permits to some undocumented workers, while Donald Trump issued several significant executive orders after taking office in 2017, along with undoing many of Obama’s initiatives. As a result, policy in these areas is increasingly determined by executive preference, and is more easily changed after elections, rather than through more permanent legislative policy.

Judiciary

The Supreme Court’s caseload has declined significantly, with various commenters suggesting that the decline in major legislation has been a major cause. Meanwhile, more policy issues are resolved judicially without action by Congress — despite the existence of potential simple majority support in the Senate — on topics such as the legalization of same-sex marriage.

Impact on major presidential policy initiatives

The implied threat of a filibuster — and the resulting 60-vote requirement in the modern era — have had major impacts on the ability of recent Presidents to enact their top legislative priorities into law. The effects of the 60-vote requirement are most apparent in periods where the President and both Houses of Congress are controlled by the same political party, typically in the first two years of a presidential term.

Bill Clinton

In 1993–94, President Bill Clinton enjoyed Democratic majorities in both chambers of the 103rd Congress, including a 57–43 advantage in the Senate. Yet the Clinton health care plan of 1993, formulated by a task force led by First Lady Hillary Clinton, was unable to pass in part due to the filibuster. As early as April 1993, a memo to the task force noted that “While the substance is obviously controversial, there is apparently great disquiet in the Capitol over whether we understand the interactivity between reconciliation and health, procedurally, and in terms of timing and counting votes for both measures….”

George W. Bush

In 2001, President George W. Bush was unable to obtain sufficient Democratic support for his tax cut proposals. As a result, the Bush tax cuts of 2001 and 2003 were each passed using reconciliation, which required that the tax cuts expire within the 10-year budget window to avoid violating the Byrd rule in the Senate. The status of the tax cuts would remain unresolved until the late 2012 “fiscal cliff,” with a portion of the cuts being made permanent by the American Taxpayer Relief Act of 2012, passed by a Republican Congress and signed by President Barack Obama.

Barack Obama

In 2009–10, President Barack Obama briefly enjoyed an effective 60-vote Democratic majority (including independents) in the Senate during the 111th Congress. During that time period, the Senate passed the Patient Protection and Affordable Care Act (ACA), commonly known as “Obamacare,” on December 24, 2009 by a vote of 60-39 (after invoking cloture by the same 60-39 margin). However, Obama’s proposal to create a public health insurance option was removed from the health care legislation because it could not command 60-vote support.

House Democrats did not approve of all aspects of the Senate bill, but after 60-vote Senate control was permanently lost in February 2010 due to the election of Scott Brown to fill the seat of the late Ted Kennedy, House Democrats decided to pass the Senate bill intact and it became law. Several House-desired modifications to the Senate bill — those sufficient to pass scrutiny under the Byrd rule — were then made under reconciliation via the Health Care and Education Reconciliation Act of 2010, which was enacted days later following a 56–43 vote in the Senate.

The near-60-vote Senate majority that Democrats held throughout the 111th Congress was also critical to passage of other major Obama initiatives, including the American Reinvestment and Recovery Act of 2009 (passed 60–38, three Republicans voting yes) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (passed 60–39, three Republicans voting yes, one Democrat voting no). However, the House-passed American Clean Energy and Security Act, which would have created a cap-and-trade system and established a national renewable electricity standard to combat climate change, never received a Senate floor vote with Majority Leader Harry Reid saying, “It’s easy to count to 60.”

In protest of the extraordinary powers granted to the Executive in the Patriot Act, Senator Rand Paul staged a 13 hour filibuster, during the Senate confirmation hearings for CIA director John Brennan. He demanded a written confirmation that the executive would not engage in extrajudicial killings of American citizens on US soil. Attorney General Holder wrote a letter, which secretary Carney read at a press conference, indicating president Obama‘s support, “The president has not and would not use drone strikes against American citizens on American soil.”

Donald Trump

In 2017, President Donald Trump and the 115th Congress pursued a strategy to use an FY17 reconciliation bill to repeal the ACA, followed by an FY18 reconciliation bill to pass tax reform. A budget reconciliation strategy was pursued since nearly all Democrats were expected to oppose these policies, making a filibuster threat insurmountable due to the 60-vote requirement.

Joe Biden

The 117th United States Congress began with Republican control of the Senate on January 3, 2021. Two days later, Georgia Senators Jon Ossoff (D) and Raphael Warnock (D) were elected in runoff elections, resulting in a 50-50 tie; when Vice President Kamala Harris was sworn-in on January 20 and Ossoff, Warnock, and Alex Padilla (D-CA) on the 21st, Democrats became the majority party. However, reorganization of the Senate and Democratic control of committees (hence confirmation of Biden Administration nominees) and hearings on legislation was delayed until February 3. The agreement meant that committee votes that ended in ties would go to the full Senate; Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) promised not to vote to end the filibuster.

Alternatives

In addition to elimination (either wholly or for certain matters), several procedural alternatives have been proposed to modify or reform the filibuster rule.

Talking filibuster

Some reformers argue that the filibuster should be returned to its origins, in which senators were required to hold the floor and speak at length to delay a bill. Since obstruction would be more visible, the reform might benefit major bills that the minority “is willing to block covertly but not overtly”. For example, a 2012 proposal by Sen. Jeff Merkley (D-OR) would require that if between 51 and 59 senators support a cloture motion, debate would continue only until there is no opposing Senator speaking. At that point, another cloture vote would be triggered with only a simple majority to pass.

Gradually lowering the 60-vote threshold

In 2013, Sen. Tom Harkin (D-IA) advocated for steadily reducing the cloture threshold each time a cloture vote fails. The number of votes required would be reduced by three on each vote (e.g. from 60 to 57, 54, 51) until a simple majority was required. Harkin envisioned that this rule would still allow the minority to bring visibility to and slow down a bill, and since the whole process would take eight days the majority would have incentive to compromise with the minority. The Senate defeated the idea by voice vote in 2013.

Minority bill of rights

As an alternative to blocking the majority’s agenda, some proposals have focused instead on granting the minority the right to have its own agenda considered on the floor. For example, in 2004 then-House Minority Leader Nancy Pelosi (D-CA) proposed a “minority bill of rights” for the House of Representatives that would have guaranteed the minority the right to offer its own alternatives to bills under consideration. The House Republican majority did not endorse her proposal, and Pelosi in turn did not grant those rights when Democrats took control of the House in 2007.

Process for limiting or eliminating the filibuster

According to the Supreme Court‘s ruling in United States v. Ballin (1892), Senate rules can be changed by a simple majority vote. Nevertheless, under current Senate rules, a rule change could itself be filibustered, requiring two-thirds of senators who are present and voting to end debate. (This differs from the usual requirement for three-fifths of sworn senators.)

Nuclear option

Despite the two-thirds requirement described above being written into the Senate rules, any Senator may attempt to nullify a Senate rule, starting by making a point of order that the rule is unconstitutional or just that the meaning of the rule should not be followed. The presiding officer is generally expected to rule in favor of the rules of the Senate, but under rule XX, “every appeal therefrom shall be decided at once, and without debate” and therefore by a simple majority as there is no need for a vote on cloture.

This happened in 2013, when Harry Reid of the Democratic Party raised a point of order that “the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote”. The presiding officer overruled the point of order, and Reid appealed the ruling. Mitch McConnell of the Republican Party raised a parliamentary inquiry on how many votes were required to appeal the chair’s ruling in that instance. The presiding officer replied, “A majority of those Senators voting, a quorum being present, is required.” Reid’s appeal was sustained by a 52–48 vote, and the presiding officer then ruled that the Senate had established a precedent that cloture on nominations other than those for the Supreme Court requires only a simple majority.

On April 6, 2017, that precedent was further changed by McConnell and the Republican majority, in a 52–48 vote, to include Supreme Court nominations.

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 can be as long as a day. However, because this is a legislative day, not a calendar day, the majority can mitigate it by briefly adjourning.

In many cases, an objection to a request for unanimous consent will compel a vote. While forcing a single vote may not be an effective delaying tool, the cumulative effect of several votes, which take at least 15 minutes apiece, can be substantial. In addition to objecting to routine requests, senators can force votes through motions to adjourn and through quorum calls. Quorum calls are meant to establish the presence or absence 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 for unanimous consent to dispense with the quorum call. If another senator objects, the clerk must continue to call the roll of senators, just as they would with a vote. If 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 by 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 is to filibuster the motion to proceed to a bill, then filibuster the bill itself. This forces the majority to go through the entire cloture process twice in a row. If, 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 chambers to merge the bills). Normally, the majority asks for unanimous consent to:

  • Insist on its amendment(s), or disagree with the House’s amendments
  • Request, or agree to, a conference
  • Authorize the presiding officer to appoint members of the special committee

If the minority objects, those motions are debatable (and therefore subject to a filibuster) and divisible (meaning the minority can force them to be debated, and filibustered, separately). Additionally, after the first two motions pass, but before the third does, senators can offer an unlimited number of motions to give the special committee members non-binding instructions, which are themselves debatable, amendable, and divisible. As a result, a determined minority can cause a great deal of delay before a conference.

When Charlie Dent was first elected to the US House of Representatives in 2004, he did not spend much time thinking or worrying about the US Senate filibuster, a rule invoked by the minority party to delay the passage of a bill or confirmation of a federal appointment. Yet, during the 2005-2006 session of Congress, when Republicans controlled the White House and both chambers of Congress, he regularly heard fellow House GOP members lambast obstructionist Senate Democrats, as they demanded abolition or extreme changes to the Senate filibuster rules. Back then, Democrats — like then-Sen. Joe Biden — opposed eliminating the filibuster, saying it would be “a fundamental power grab by the majority party.”

Fast forward in time, and now it is Democrats who are decrying the filibuster. Democratic Rep. Ro Khanna of California, in a letter to President Biden and Vice President Kamala Harris, recently wrote, “There is an institutional deference that maybe would have been fine in times past, but a defense of the status quo is inadequate to the challenges of our time. We have to follow the rule of law, but we don’t have to defer to norms and traditions. “After four years of former President Donald Trump indiscriminately swinging his wrecking ball at all sorts of norms, customs and traditions, he was surprised to hear Democrats make such statements. But, more importantly, he thought when he entered Congress, that eliminating the filibuster — despite its flaws — would be disastrous. The filibuster is the last and best mechanism available to compel some level of bipartisan cooperation to advance meaningful, durable legislation in Congress. It’s important to note that some of the biggest opponents of the filibuster have been the most radical and extreme voices — not the leaders who strive for moderation. In 2010, the Tea Party’s electoral victories brought an aggressive, merry band of hard-right conservatives to Congress who, with great zeal, further turbocharged the filibuster abolition movement. Those GOP House voices grew even louder and angrier after the 2014 midterm election delivered a Republican majority to the Senate.

In 2016, Trump was elected president and, predictably and in short order, said the Senate should get rid of the filibuster. The GOP had the White House and Congress at the time, so why not use that majority power to deliver a conservative agenda for the American people? Then-Senate Majority Leader Mitch McConnell drew the scorn of some of his House GOP colleagues for objecting and telling them such a change will not happen because, someday, they would not be in the majority and then they’d lose whatever voice the filibuster had given them.

So, here we are. The GOP is back in the minority in Congress — and if not for the objections of Democratic moderates like Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, the filibuster would be in grave danger. But like he suspected these moderate Democratic senators, understood the value of the filibuster in shaping better legislation. During his congressional tenure, He witnessed how the filibuster empowered the Senate to engage in bipartisan negotiations to finalize critical budget agreements, spending bills, debt ceiling increases, the Troubled Asset Relief Program (TARP) after the 2008 financial crash, Hurricane Sandy disaster relief and other measures essential to the stable functioning of government. In addition to killing bipartisanship, eliminating the filibuster would increase the likelihood of sweeping, draconian laws being enacted on a purely partisan basis. The filibuster gives the Senate the capacity to check the excesses of the House, since a 60-vote threshold (rather than a simple majority) requires compromise with the other party — even when one party controls both the legislative and executive branch.

If the filibuster is eliminated — and when Republicans regain control of the White House and Congress someday — Democrats should expect attempts by the GOP to strike back. McConnell said as much this week, warning “a completely scorched earth Senate” should the filibuster rules change. He argued, “We wouldn’t just erase every liberal change that hurt the country — we’d strengthen America with all kinds of conservative policies with zero, zero input from the other side,” highlighting how the GOP would move to defund Planned Parenthood, take away support from sanctuary cities, etc. Some Democrats are now arguing that to retain the filibuster is to support a racist rule because Southern segregationists deployed the tactic many decades ago. But it should be noted that both the landmark Civil Rights Act of 1964 and the Voting Rights Act of 1965 became law in spite of the Senate filibusters each bill faced. And, with GOP control of Washington in 2006, the Voting Rights Act was reauthorized with a strong bipartisan vote — a vote that was among my proudest moments in the House of Representatives. In this highly divided Senate, there still may be room for common sense electoral reform that can win over enough moderate Republicans to become law — even if the current piece of legislation, the For the People Act, misses the mark. In a closed-door House GOP Conference, I periodically gave this speech to my colleagues: If you want the Senate to be a smaller version of the House, then eliminate the filibuster. The way to do it is to announce your Senate candidacy, raise several millions of dollars, get elected and then, once seated, vote to change the Senate rules. But, until then, stop complaining and let’s get back to business here in the House.

To be clear, the Senate filibuster is an overused, imperfect tool and there is certainly room for improvement. As a former senior member of the House Appropriations Committee, I was frequently annoyed with the Senate’s inability to proceed on appropriations bills. These bills provide critical funding for programs that support the armed forces, medical research, small business, infrastructure, border security, agriculture, housing, education and more. And yet, senators would frequently launch filibusters on motions to proceed on these bills — thus delaying floor debate and final votes. Perhaps, if the Senate were to make a change, it could rewrite the rules so senators would not be able to filibuster until the bill is actually being debated on the floor for final passage? Without a bipartisan consensus on changes to the filibuster, however, Congress will become even more tragically divided than it already is. And an outright repeal of the filibuster will lead to more partisan legislation that can be overturned by the minority party when it once again gains the majority — adding more fuel to fire the kilns of national hostility, grievance and resentment. So, before pulling the trigger on the filibuster, Democrats should think hard about future ramifications.

Conclusion

On the whole, the filibuster has been used roughly twice as much by Senate Republicans to prevent Democratic legislation from passing than Senate Democrats have used it to prevent Republican legislation. It is also important to note that a number of the conservative Senate majority’s current priorities, including the confirmation of judges and cutting taxes for the wealthiest Americans, are not subject to the filibuster, meaning that a larger part of their agenda can be accomplished on a majority-vote basis. And, in the last Congress, congressional Republicans attempted to utilize fast-track procedures in their failed effort to repeal the Affordable Care Act, so as to avoid a filibuster in the Senate.

The filibuster has also been used to prevent significant conservative priorities, including efforts to undermine reproductive rights. Should elected officials decide to modify the filibuster, they must be firmly committed to upholding hard-won legal rights of critical importance, such as reproductive rights, and taking concrete steps to prevent their erosion.

In addition, it is important to keep in mind that because the full impact of the filibuster is difficult to measure, this report cannot describe the entire range of progressive or conservative proposals that might have been enacted into law by majority vote.

Nonetheless, it is clear that the filibuster has had a substantial effect on the legislative landscape. It shapes what lawmakers of both parties view as possible and constrains the types of legislation that are brought to the floor for consideration—let alone passed. Moreover, over time, the filibuster has provided senators representing a smaller and smaller segment of the population the ability to stop legislation from moving forward—trends that seem likely to continue, and even accelerate, in the coming years.

A change in this procedure could dramatically change the legislative and nomination processes. If the Senate completely abolishes the filibuster, the Senate would likely become a smaller version of the House, effectively surrendering its unique constitutional role of cooling the hot tea coming from the House of Representatives.

Besides court expansion, many Democrats see the elimination of the filibuster as the most expeditious way to accomplish important legislative priorities in the areas of gun control, health care, climate change, and immigration—among others. Measures addressing many of these issues have been approved by the Democratic majority in the House during 2019 and 2020, but the Senate under Republican control has not moved forward on them. Majority Leader Mitch McConnell has proudly proclaimed himself the “Grim Reaper” for progressive legislation.

But Biden, whose political career was steeped in the old folkways of the Senate, so far hasn’t been willing to commit to eliminating the filibuster. He has been cagey about his views, initially suggesting that he opposed the elimination of the filibuster, then hinting that he was warming up to it, and lately signaling a reluctance to endorse abolishing the practice. And while the progressive wing of the Democratic party is agitating for an end to the procedure, even if Biden were to embrace eliminating the filibuster, it is not a foregone conclusion that a majority of Senate Democrats would agree—although an influx of new Democratic senators, should it materialize, might force the veterans’ hands. It is also far from clear that most Democrats would support such a step, with relatively small numbers of rank-and-file partisans embracing the abolition of the tactic.

The wholesale elimination of the Senate filibuster seems unlikely; reforms are much more probable. So far, Biden’s evasiveness on the issue of abolishing the filibuster has served him well; should he win election, he is certain to find himself embroiled in a debate over the future direction of his former institution, and he has left all his options open. But what he must know from his decades of service in the Senate, and what the Gorsuch and Barrett confirmations reveal, is that if Democrats abolish the filibuster, they will realize short term legislative gains but will leave themselves vulnerable if their majority does not last.

Resources

en.wikipedia.org, “Filibuster in the United States Senate,” By Wikipedia Editors; cnn.com, “The dangerous ramifications of killing the filibuster,” By Charlie Dent; americanprogress.org, “The Impact of the Filibuster on Federal Policymaking,” By Alex Tausanovitch and Sam Berger; blogslse.ac.uk, “Primary Primers: Why the Senate Filibuster is so important in this presidential election,” By Lauren C. Bell; heritage.org, “The Filibuster Protects the Rights of All Senators and the American People,” By Brian Darling;

Addendum

How the filibuster empowers a small segment of America

The filibuster empowers a minority of senators who may represent a surprisingly small percentage of Americans. Each state is assigned two senators regardless of population, so the most populous state, California—home to nearly 40 million people—has the same number of senators as Wyoming, which has fewer than 600,000 residents. That means that Wyoming voters have 68 times as much representation in the Senate as Californians. By comparison, when the Constitution was ratified, Virginia had almost 13 times as many people as Delaware—the largest disparity at the time.

Consider that the 21 states with the fewest residents, who collectively have enough Senators to filibuster legislation, make up only 11 percent of the total population. Of course, in most cases, it is unlikely that the smallest states would all band together to filibuster because some small states predominantly elect Democratic senators and others predominantly elect Republicans. But the problem is not alleviated by taking into consideration the partisan leanings of states.

For example, the 21 least-populous states currently represented by two Republican senators—enough to sustain a filibuster—represent less than 25 percent of the U.S. population. Democrats currently have two senators in 18 states, and those states represent about 41 percent of the U.S. population. If you include five additional Democrats from the least populous states that have one Democratic senator—enough to sustain a filibuster—then they would represent about 46 percent of the population. Also, consider that many voters do not support the winning candidate in their state. The implication is that, at any time, a very small percentage of the population can elect enough senators to block the will of a much larger majority of Americans.

Note that because senators represent uneven numbers of Americans, even the majority in the Senate may not quite represent a majority of Americans. In those cases, the filibuster can be used by a minority of senators to prevent an outcome that itself lacks majority support among the American people.

The impact of the filibuster on legislative outcomes

It is easy to demonstrate that the filibuster has increased in use and that it allows a small minority to frustrate the will of the majority. It is not easy, however, to quantify the actual impact of the filibuster. To provide a sense of the filibuster’s impact, this report first examines significant bills that were blocked by filibusters. Second, it provides examples of legislation that never made it to a vote in the first place because senators assumed these bills would be blocked by the filibuster.

The list of bills is intended to capture significant policy changes that would have gone into effect if not for the filibuster. It is composed of bills considered since the beginning of the Clinton administration that: 1) had the support of a majority of senators; 2) were subject to a filibuster but lacked the 60 votes to overcome it; and 3) would likely have become law if passed by the Senate.

The last criteria is important because many bills that pass one chamber of Congress do not become law, particularly in periods of divided government. Consider, for example, Senate Democrats’ 2012 effort to pass the Buffett Rule, which would have set a 30 percent minimum tax for individuals with an annual income of more than $2 million, phasing in gradually for individuals with an income of more than $1 million. The bill was supported by 51 senators—all Democrats—but failed to overcome a Republican filibuster.35 However, even if it had passed in the Senate, it almost undoubtedly would have failed in the House of Representatives, which the Republican Party controlled by a substantial margin. Therefore, the filibuster did not really stop the Buffett Rule from becoming law, as it never stood a chance from the start. This is not to say that passage of a bill through the Senate under divided government cannot affect the political dynamics in the House but simply that virtually all bills that could have garnered 51 votes in the Senate likely would still not have become law under divided government.

In order to exclude filibusters of bills that would be unlikely to pass in divided government, the list below is limited to periods of trifecta government—where one party had majority control of the House and Senate as well as control of the presidency. Since at least the 1990s, most major legislation with divided support in Congress has split along party lines. This means that, even if it has passed the Senate, it would have been unlikely to win the support of the opposing party in the House—or the White House. But, in conditions of trifecta government, a filibuster in the Senate can be fatal to a bill that likely would have passed the House and received the president’s signature.

Note that, in some cases, filibustered bills were eventually passed but with substantial concessions to the senators blocking the original bill.

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