Filibuster in the United States Senate
A filibuster is a tactic used in the United States Senate to delay or block a vote on a measure by preventing debate on it from ending.
Even once cloture has been invoked, in most cases debate can continue for a further 30 hours, and most major bills are subject to two or three filibusters before the Senate can vote on passage.
Notably, in 2013 and 2017, the Senate used the nuclear option to set a series of precedents that reduced the threshold for cloture on nominations to a simple majority.
On September 22, 1789, Senator William Maclay wrote in his diary that the "design of the Virginians [...] was to talk away the time, so that we could not get the bill passed.
[21] In 1917, during World War I, at the urging of President Woodrow Wilson,[22] the Senate adopted a rule by a vote of 76–3 to allow cloture to be used to limit debate on a measure.
[23] This took place after a group of twelve anti-war senators managed to kill a bill that would have allowed Wilson to arm merchant vessels in the face of unrestricted German submarine warfare.
[17]: 191 In 1953, Senator Wayne Morse set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands oil legislation.
[32][33] The notable side effect of this change was that by no longer bringing Senate business to a complete halt, filibusters became politically easier for the minority to sustain.
For instance, the Senate held that if cloture has been invoked on a measure, the presiding officer must take the initiative in ruling nongermane amendments out of order.
[17]: 220 The tactic of using points of order to delay legislation because they were not counted as part of the limited time allowed for debate was rendered ineffective by this rule change.
However, on March 5, 1980, the Senate voted 38–54 against sustaining a decision of the chair and thus set a precedent that a nondebatable motion to proceed to executive session to consider a specific nomination (or treaty) is in order.
[52][53] Firstly, during the 113th Congress, debate on certain motions to proceed to bills would be limited to four hours, and the minority would be guaranteed the opportunity to offer amendments.
[56] On April 6, 2017, Senate Republicans eliminated the sole exception to the 2013 change by invoking the nuclear option to extend the 2013 precedent to include Supreme Court nominees.
[70] 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.
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 margin).
[74] 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.
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.
In July, the Senate Parliamentarian advised that certain provisions of the House bill must be stricken (as extraneous non-budgetary matter) under the Byrd rule before proceeding under reconciliation.
[78] Senate Republicans were unable to obtain a simple majority for any health care reconciliation bill before the end of the fiscal year, and the budget resolution expired.
[83][84] In January 2021, following a shift to a 50–50 Democratic majority supported by Vice President Harris' tie-breaking vote, the legislative filibuster became a sticking point for the adoption of a new organizing resolution when Mitch McConnell, the Senate Minority Leader, threatened to filibuster the resolution unless it included language committing to a 60-vote threshold to invoke cloture.
[91] In addition to reducing the cloture threshold to a simple majority (either wholly or for certain matters), several procedural alternatives have been proposed to modify or reform the filibuster rule.
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.
The presiding officer, relying always on the opinion of the Senate parliamentarian, determines whether an item is extraneous, and a 60-vote majority is required either to overrule the decision of the chair or to waive the Byrd rule, and thus include such material in a reconciliation bill During periods of single-party control in Congress and the Presidency, reconciliation has increasingly been used to enact major parts of a party's legislative agenda by avoiding the 60-vote rule.
[101]: 13–14 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.
Minority Leader Mitch McConnell raised a parliamentary inquiry on how many votes were required to appeal the chair's ruling in that instance.
Reid's appeal was sustained by a 48–52 vote, and the Senate thus established a precedent that cloture on nominations other than those for the Supreme Court requires only a simple majority.
*** Under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority.
[109] A new precedent was thus established allowing for cloture to be invoked by a simple majority on executive nominations, excluding those to the Supreme Court of the United States.
Because the Senate routinely conducts business by unanimous consent, one member can create at least some delay, and in many cases effectively kill a measure, by objecting to the request.
This prevents the chair from fulfilling their duty to put the pending question to a vote and means that senators do not need to hold the floor to filibuster a measure.
