Supriya Ghosh

Filibuster in the United States Senate

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Filibuster in the United States Senate

A filibuster in the United States Senate is a dilatory or obstructive tactic used in the United States Senate to prevent a measure from being brought to a vote. The most common form of filibuster occurs when a senator attempts to delay or block a vote on a bill by extending debate on the measure. 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" (usually 60 out of 100) bring the debate to a close by invoking cloture under Senate Rule XXII. The only bills that cannot be filibustered are those few considered under provisions of law that limit time for debating them.

Contents

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.) Despite this written requirement, the Senate's presiding officer could, on motion, declare a Senate rule unconstitutional, and that decision could be upheld by a simple majority vote.

The concept of the filibuster emerged in the Senate in the 1850s. 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 continues to allow the tactic.

Early use of the filibuster

In 1789, the first U.S. Senate adopted rules allowing senators to move the previous question, which meant ending debate and proceeding to a vote. But in 1806, former 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. The Senate agreed and modified its rules. Because it created no alternative mechanism for terminating debate, filibusters became possible.

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 the Second Bank of the United States. 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.

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.

20th century and the emergence of cloture

In 1917, during World War I, a rule allowing cloture of a debate was adopted by the Democratic-majority Senate, at the urging of President Woodrow Wilson, after a group of 12 anti-war senators managed to kill a bill that would have allowed Wilson to arm merchant vessels in the face of unrestricted German submarine warfare. From 1917 to 1949, the requirement for cloture was two-thirds of 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.

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, Southern senators 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. Anticipating more civil rights legislation, the Senate revised its rules in 1949 to permit the invocation of cloture only if two-thirds of the entire Senate membership voted in favor of a cloture motion.

In 1953, Senator Wayne Morse of Oregon set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands Oil legislation. 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, 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 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 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 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 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 one will be considered.

In 1975, the Democratic-controlled Senate revised the cloture rule so that three-fifths of sworn senators could limit debate, except on votes to change Senate rules, which required a two-thirds majority to invoke cloture. The Senate also experimented with a rule that removed the need to speak on the floor in order to filibuster (a "talking 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.

21st century

In 2005, a group of Republican senators led by Majority Leader Bill Frist floated the idea of having Dick Cheney—who, as vice president, was also president of the Senate—rule 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 a simple majority of senators. This was a response to the Democrats' threat to filibuster some judicial nominees of President George W. Bush. Senator Trent Lott, the junior senator from Mississippi, used the word "nuclear" to describe the plan, and so it became known as the "nuclear option".

On May 23, 2005, a group of 14 senators—seven Democrats and seven Republicans, collectively dubbed the "Gang of 14"—reached an agreement to defuse the conflict. 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 under non-extraordinary circumstances. Specifically, the Democrats promised to stop filibusters against Priscilla Owen, Janice Rogers Brown, and William H. Pryor, Jr. In return, the Republicans would stop their effort to ban the filibuster for judicial nominees. This agreement was successful in the short term, but it expired in January 2007, at the end of the second session of the 109th United States Congress.

In the 2007–08 session of Congress, there were 112 cloture votes, and some have used this number to argue that filibusters have become more common. However, the Senate leadership has increasingly used cloture as a routine tool to manage the flow of business, even in the absence of a filibuster. Thus, the presence or absence of cloture attempts is not a reliable indicator of the presence or absence of a filibuster. Because filibustering does not depend on the use of any specific rules, whether a filibuster is present is always a matter of judgment.

In December 2009, Senator Sheldon Whitehouse (D-Rhode Island) claimed that there had been more than 100 filibusters and acts of obstruction during the 111th Congress. In March 2010, freshman senator Al Franken (D-Minnesota) attacked the majority of the filibusters—some on matters that 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 on the history and use of the filibuster in the Senate.

In response to the use of the filibuster in the 111th Congress, all Democratic senators returning to the 112th Congress signed a petition to Majority Leader Harry Reid (D-Nevada) requesting that the filibuster be reformed, including abolishing secret holds and reducing the amount of time allotted for post-cloture debate.

Changes in 2013

Negotiations between the two parties resulted in the approval of two packages of amendments to the Senate's filibuster rules on January 25, 2013. Changes to standing orders affecting just the 2013–14 Congress (Senate Resolution 15) were passed by a vote of 78 to 16, allowing Reid, the majority leader, to prohibit a filibuster on a motion to begin consideration of a bill. Changes to the permanent Senate rules (Senate Resolution 16) were passed by a vote of 86 to 9.

The changes represented a compromise between the major reforms proposed by some Democratic senators and the smaller changes preferred by Republicans. Those seeking major reform, including Democrats and liberal interest groups, had originally proposed a variety of measures, including ending the filibuster completely; banning the use of filibusters on motions to proceed; re-introducing the "talking filibuster", thus requiring the minority to remain on the Senate floor and speak in order to impede a vote; banning the use of filibusters on House-Senate conferences; and forcing the minority to produce 41 votes in order to block cloture. These changes could only have been implemented with a declaration from the Senate's presiding officer that the filibuster was unconstitutional.

The narrower compromise rules removed the requirement of 60 votes in order to begin debate on legislation, and allowed the minority two amendments to measures that reached the Senate floor. This change was implemented as a standing order that expired at the end of the term in which it was passed. The new rules also reduced the amount of time allowed for debate after a motion to proceed from 30 hours to four hours. Additionally, they stated that a filibuster on a motion to proceed could be blocked with a petition signed by eight members of the minority, including the minority leader. For district court nominations, the new rules reduced the maximum time between cloture and a confirmation vote from 30 hours to two hours. Finally, if senators wished to block a bill or nominee after the motion to proceed, they had to be present in the Senate and debate.

Despite these changes, 60 votes were still required to overcome a filibuster, and the "silent filibuster"—in which a senator can delay a bill even if they leave the floor—remained in place.

Following the announcement of the new rules, Senator Dick Durbin (D-Illinois), who was involved in the negotiations, said the compromise was a true agreement between the majority and minority leaders, and was overwhelmingly supported by Senate Democrats. However, it was negatively received by liberal interest groups, including CREDO; Fix the Senate Now, a coalition of approximately 50 progressive and labor organizations; and the Progressive Change Campaign Committee, which had pushed to eliminate the "silent filibuster" on the grounds that it allowed Republicans to block progressive bills. Senator Bernie Sanders of Vermont, a liberal independent, argued that the 60-vote requirement to pass legislation made it "impossible" to deal with the crises facing the United States. Conservatives also criticized the reforms, arguing that they hurt the minority party. In particular, Heritage Action for America argued that reducing the time allowed for debate would let senior lawmakers "avoid accountability". Senator Rand Paul (R-Kentucky) criticized the new rules for limiting the "ability of senators to offer amendments".

On March 6, 2013, Senator Paul launched a talking filibuster to stall a vote on John O. Brennan's nomination for the position of director of the Central Intelligence Agency. Brennan was considered the main architect of the Obama administration's drone strikes program in the Middle East, and Paul demanded an answer from the administration to the question: "Should a president be allowed to target and kill an American by drone attack on American soil without due process?" After 12 hours and 52 minutes of talking, it became the ninth-longest filibuster in U.S. history (a distinction that held until October 2013). However, Paul's filibuster was widely considered a publicity stunt, since Attorney General Eric Holder had answered "no" when the same question was posed by Senator Ted Cruz (R-Texas) in a Senate Judiciary Committee hearing hours earlier.

On November 21, 2013, the Senate used the so-called "nuclear option", voting 52-48—with all Republicans and three Democrats voting against—to eliminate the use of the filibuster on executive branch nominees and judicial nominees, except to the Supreme Court. At the time of the vote, there were 59 executive branch nominees and 17 judicial nominees awaiting confirmation.

The Democrats' stated motivation was what they saw as an expansion of filibustering by Republicans during the Obama administration, especially with respect to nominations for the United States Court of Appeals for the District of Columbia Circuit. Republicans had asserted that the D.C. Circuit was underworked and cited a need to cut costs by reducing the number of judges. Democrats responded that Republicans had not raised these concerns earlier, when President Bush had made nominations to the court, and argued that the size of the court needed to be maintained because of the complexity of the cases it hears.

As of November 2013, 79 officials nominated by President Barack Obama had received cloture votes, compared with 38 in the eight years of the Bush administration. However, most of the cloture votes on Obama's nominees successfully ended debate, and the nominees cleared the filibuster. Ultimately, Obama won Senate confirmation for 30 out of 42 federal appeals court nominees (71.4%), compared with Bush's 35 out of 52 (67.3%). As of November 2013, the Senate had also approved 143 out of 173 (82.7%) of Obama's district court nominees, compared with George W. Bush's 170 of 179 (95%), Bill Clinton's 170 of 198 (85.9%), and George H. W. Bush's 150 of 195 (76.9%). Filibusters were used to block or delay 20 of Obama's district court nominations—compared with three under all previous U.S. presidents combined—but Republicans ultimately allowed the confirmation of 19 of the 20.

Senate Democrats who supported the "nuclear option" also did so out of frustration with filibusters of executive branch nominees for agencies such as the Federal Housing Finance Agency.

Post-2013

In 2015, Republicans took control of the Senate and kept the 2013 rules in place. Senators Lamar Alexander (R-Tennessee) and Mike Lee (R-Utah) proposed ending the use of the filibuster for Supreme Court nominees, while other senators favored the status quo. A third camp favored restoring the filibuster for all nominations. In October 2015, Majority Leader Mitch McConnell (R-Kentucky) convened a task force to consider eliminating filibusters on motions to proceed.

Following the 2016 Orlando nightclub shooting, Senator Chris Murphy (D-Connecticut) launched a filibuster on the Senate floor on June 15, 2016, to push for gun control measures, including universal background checks and legislation that would prohibit firearm sales to suspected terrorists. The Senate was scheduled to vote on H.R. 2578 (the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016), but the vote was delayed by the filibuster, which lasted 14 hours and 50 minutes. Murphy was joined on the floor by his fellow Democrats and two Republicans, Ben Sasse and Pat Toomey.

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.

    Longest filibusters

    Below is a table of the ten longest filibusters to take place in the United States Senate since 1900.

    References

    Filibuster in the United States Senate Wikipedia


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