Filibuster in the United States Senate

A filibuster is a tactic used in the United States Senate to delay or block a vote on a measure by preventing debate on it from ending. The Senate's rules place few restrictions on debate. In general, if no other senator is speaking, a senator who seeks recognition is entitled to speak for as long as they wish. Only when debate concludes, whether naturally or using cloture, can the measure be put to a vote.

Rule XXII of the Standing Rules of the United States Senate allows the Senate to vote to limit debate by invoking cloture on the pending question. In most cases this requires a majority of three-fifths of the senators duly chosen and sworn (60 votes if there is no more than one vacancy), so a minority of senators can block a measure, even if it has the support of a simple majority.

Once cloture has been invoked, in most cases debate can continue for a further 30 hours, and most major bills are subject to two or three filibusters before the Senate can vote on passage. Even bills supported by 60 or more senators (as well as nominations) may therefore be delayed by a filibuster. A filibuster can also be conducted through the use of other delay tactics, such as proposing amendments or making motions.

Throughout the Senate's history, senators have frequently made efforts to curtail the use of the Senate's filibuster. Notably, in 2013 and 2017, the Senate used the nuclear option to set a series of precedents that reduced the threshold for cloture on nominations to a simple majority. Since then, nominations can be confirmed without the support of 60 senators, though they may nonetheless be delayed by a filibuster. A number of rulemaking statutes have been enacted to limit the scope of the filibuster by imposing an automatic time limit on Senate debate of certain questions. These include the Congressional Budget Act of 1974 (which created the budget reconciliation process), the Congressional Review Act and the District of Columbia Home Rule Act. Since debate on such measures ends without cloture being invoked, they are not subject to the 60-vote threshold.

History

Constitutional design

Only five supermajority requirements were explicitly included in the original United States Constitution, including conviction on impeachment (two-thirds of senators present), agreeing to a resolution of advice and consent to ratification of a treaty (two-thirds of senators present), expelling a member of Congress (two-thirds of members voting in the house in question), overriding presidential vetoes (two-thirds of members voting of both houses), and proposing constitutional amendments (two-thirds of members voting of both houses). Through negative textual implication, the Constitution also gives a simple majority the power to set procedural rules.

In Federalist No. 22, Alexander Hamilton described supermajority requirements as being one of the main problems with the previous Articles of Confederation, and identified several evils which would result from such a requirement:

"To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. [...] The necessity of unanimity in public bodies, or something approaching it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, destroy the government's energy, and substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, so that something may be done, must conform to the views of the minority; thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings—hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy."

Early use of the filibuster

Originally, the Senate's rules did not provide for a procedure for the Senate to vote to end debate on a question so that it could be voted on, which opened the door to filibusters. Indeed, a filibuster took place at the very first session of the Senate. On September 22, 1789, Senator William Maclay wrote in his diary that the "design of the Virginians [...] was to talk away the time, so that we could not get the bill passed."

Although between 1789 and 1806 the Senate's rules provided for a motion for the previous question, this motion was itself debatable, so its effectiveness as a cloture mechanism was limited. Rather, it was used by the Senate to reverse its decision to consider a measure, much like today's motion to postpone. Beginning in 1811, the House of Representatives set a series of precedents to make the previous question a way of limiting debate. Throughout the 19th century, some senators unsuccessfully attempted to introduce this version of the previous question into the Senate's rules.

During most of the pre–Civil War period, the filibuster was seldom used to block measures, as northern senators desired to maintain southern support over fears of disunion and secession, and made compromises over slavery in order to avoid confrontation with new states admitted to the Union in pairs to preserve the sectional balance in the Senate, most notably in the Missouri Compromise of 1820.

One of the early notable filibusters occurred in 1837 when a group of Whig senators filibustered to prevent allies of the Democratic President Andrew Jackson from expunging a resolution of censure against him. In 1841, a defining moment came during a filibuster on a bill to charter a new national bank. After Whig Senator Henry Clay proposed a rules change to limit debate, Democratic Senator William R. King threatened an even longer filibuster, saying that Clay "may make his arrangements at his boarding house for the winter". Other senators sided with King, and Clay backed down.

Narciso Lopez filibustering expeditions to Cuba in the 1850s set the context for the word to employed to connote legislative obstruction on the floor of the US Congress, the word first used in this sense on 3 January 1853 (Fisk and Chemerinsky 1997, 192). In a debate on Cuba, a Democrat, Abraham Venable of North Carolina, denounced filibusters as freebooters who were transforming the United States into "a nation of buccaneers" and the "brigands of the world" (Lazo 2005, 21). Venable crossed party lines to endorse the Whig position of nonintervention, although he argued that should Spain relinquish Cuba the US could acquire it, "but the acquisition should not be achieved through filibustering" 193).

The emergence of cloture (1917–1969)

In 1917, during World War I, at the urging of President Woodrow Wilson, the Senate adopted a rule by a vote of 76–3 to allow cloture to be used to limit debate on a measure. This took place after a group of twelve anti-war senators managed to kill a bill that would have allowed Wilson to arm merchant vessels in the face of unrestricted German submarine warfare.

Under the new rule, at any time while a measure was pending, a senator could present a cloture motion signed by 16 senators. One hour after the Senate convened on the second calendar day of session following the filing of the cloture motion, the business then pending would be set aside, and the presiding officer would put to the Senate the question, "Is it the sense of the Senate that the debate shall be brought to a close?" If two-thirds of senators present and voting voted in favor of cloture, the measure would become unfinished business to the exclusion of all other business; no dilatory motions or amendments would be allowed; all amendments would be required to have been submitted before the cloture vote; and each senator would be limited to one hour of debate (which must be relevant to the clotured measure).

The first cloture vote occurred in 1919 to end debate on the Treaty of Versailles. Although cloture was invoked, the treaty was then rejected against the wishes of the cloture rule's first champion, President Wilson. In the 1930s, Senator Huey Long of Louisiana used long filibusters to promote his populist policies. He recited Shakespeare and read out recipes for "pot-likkers" during one of his filibusters, which occupied 15 hours of debate.