Cloture and filibusters in the U.S. Congress

In the Senate, a filibuster is an attempt to extend debate on a proposal in order to delay or completely prevent a vote on its passage. The term first came into use the Senate, where rules permit a senator or a series of senators to speak for as long as they wish and on any topic they choose, unless a supermajority group of 60% of senators brings debate to a close by invoking cloture. Filibustering, for many years, was the primary tactic by which southern senators were able to block civil rights and anti-lynching legislation from coming to the floor. More recently, the filibuster received attention when the Republican-controlled 109th Congress threatened to end it in an attempt to stop Democrats from blocking President Bush’s judicial nominations.

110th Congress (2007-2008)
Following the 2006 congressional elections, Democrats held a 51-49 Senate majority in the 110th Congress. The Republican minority used the filibuster frequently in the first month of the session.

Legislative Transparency and Accountability Act
On January 17, an attempt to change ethics laws and rules failed after forty-five Republicans blocked it from coming to the floor for a vote. Several days later, the measure passed 96-2 after Senate leaders were able to compromise on their differences.


 * See Congresspedia page on the Legislative Transparency and Accountability Act of 2007.

Raising the minimum wage
On January 23, forty-three Republicans blocked an attempt to raise the federal minimum wage from $5.15 to $7.25 over two-years.

Several days later, the increase was passed 94-3 after several amendments allowing for small business tax breaks were added to the bill.


 * See Congresspedia page on minimum wage legislation.

Opposing the "surge"
On February 5, 2007, forty-six Republicans blocked an attempt by Democrats to consider a resolution opposing President Bush's plan to send an additional 21,500 troops into Iraq.


 * See Congresspedia page on the Iraq troop "surge".

Reid forces traditional filibuster
During the summer of 2007, Senate Republicans were successfully filibustering the Levin-Reed amendment to the FY 2008 Defense Department authorization bill that would set a timetable for withdrawal from Iraq. Senate Majority Leader Harry Reid (D-Nev.) issued a statement saying:

It would be one thing for Republicans to vote against this bill. If they honestly believe that “stay the course” is the right strategy — they have the right to vote “no.” But now, Republicans are using a filibuster to block us from even voting on an amendment that could bring the war to a responsible end. They are protecting the President rather than protecting our troops. They are denying us an up or down — yes or no — vote on the most important issue our country faces. I would like to inform the Republican leadership and all my colleagues that we have no intention of backing down. If Republicans do not allow a vote on Levin/Reed today or tomorrow, we will work straight through the night on Tuesday. The American people deserve an open and honest debate on this war, and they deserve an up or down vote on this amendment to end it.

What ensued was an all-night debate on the Iraq war. In the morning, the Democrats still fell short of the votes required for cloture, though they won over four Republican defectors.

History
Using the filibuster to delay or block legislative action has a long history. The term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.

In the early years of Congress, representatives as well as senators could filibuster. As the House of Representatives grew in numbers, however, revisions to the House rules limited debate. In the smaller Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue.

Origin
There is no mention of the filibuster in the Constitution. Rather, the document provided both chambers the right to set their own rules for procedure. In the original Senate, there were no filibuster provisions. Following the common practice of the time, including the Continental Congress and the British House of Commons, a simple majority was able to end debate and bring anything to the floor for a vote.

In 1806, the Senate re-codified its standing rules for the first time. Acting on the advice of former Vice-President Aaron Burr, the Senate determined that the motion to end debate (by a majority vote) and bring a bill to the floor was not necessary (it had been used only once in four years) and should therefore be eliminated from the rules. It removed the motion, and added no other provision by which debate could be ended to bring a vote to the floor. This created the possibility for a filibuster, whereby a member(s) could continue debating endlessly to block a vote.

First use
It was not until the 1830s that the filibuster was used as a tactic by a minority in the Senate. It was first seen in the 1830s by Democrats who sought to prevent a Whig-supported bill involving the Bank of the United States from coming to the floor. Though it did not become a common tactic, the ability of any one senator to stop a vote remained intact until 1917.

Introduction of the cloture vote
In 1917, isolationist Republicans threatened to use the filibuster to make it more difficult for President Woodrow Wilson to prepare for U.S. entry into World War I. A compromise change in the rules (Rule 22) was reached whereby two-thirds of the members of the Senate could vote on “cloture” to end a filibuster and bring votes to the floor. The new rule was first applied in 1919 when the Senate invoked cloture to end a filibuster against the Treaty of Versailles.

Early use
During the 1930s, populist Sen. Huey Long (D-La.) used the filibuster against bills that he felt favored the wealthy over the poor. The rules did not require that one debate about a subject germane to the bill being filibustered, and Long often read passages from Shakespeare or cookbooks to fill time on the floor.

Filibustering civil rights
During the rest of the 20th century, the filibuster was used most frequently by southern Democrats to block civil rights and anti-lynching legislation. In those days, motions to invoke cloture often did not occur immediately after debate on a bill began (as they often do today). This allowed for many long filibusters whereby one or more members would speak for hours. Sen. Strom Thurmond, a Democrat (who later became a Republican) from South Carolina, set the still-standing record for the longest filibuster when he spoke for 24 hours and 18 minutes to stop a vote on the 1957 Civil Rights Act. In 1964, southern senators filibustered the much stronger Civil Rights Act of 1964 for fifty-seven days.

Weakening the filibuster
Beginning in the 1950s, Senate liberals (such as Hubert Humphrey and Walter Mondale) and liberal interest groups (such as Americans for Democratic Action, the American Jewish Congress, and the National Association for the Advancement of Colored People), began attacking the filibuster as anti-democratic and inefficient. In addition, several civil rights organizations placed committee and filibuster reform at the top of their political agenda. In 1951, the NAACP listed filibuster reform as an important step to ending lynching and "equally important as fighting employment discrimination." The Leadership Conference on Civil Rights (LCCR) "ranked filibuster reform with criminalizing lynching and ending segregation." The Conference stated, "Until this obstacle is removed, there can be no hope for congressional action against the forces of bigotry." Writing for the New Republic, Sen. Paul Douglas explained that while filibuster reform seemed to many “a barren and arid matter of parliamentary procedure,” it was a determining factor into whether Congress would ever pass civil-rights legislation. In 1959, in response to these criticisms, Senate rules were slightly modified to allow for cloture with 2/3 present as opposed to 2/3 of the entire Senate.

Prior to the Senate's commencement in 1975, Senate Majority Leader Mike Mansfield (D-Mont.) stated his support for further reducing the requirements for cloture. Since the passage of civil rights legislation in the 1960s, the issue of the filibuster had waned, but after a filibuster of campaign finance reform led by Sen. James Allen, the Democratic majority returned to the issue. Senate liberals, including Mondale, pushed for a "majoritarian" system whereby cloture would require only 50 votes. Mansfield, along with Sen. Robert Byrd (D-W.Va.), preferred to compromise and make the cloture limit 3/5 (60 votes) rather than 2/3. When the Senate came into session, Sens. James Pearson and Mondale accepted the compromise and proposed to change cloture rules to require 3/5 of the Senate who were present and voting.

The proposal by Mondale and Pearson was contentious and was in fact filibustered itself. During the filibuster, Vice President Nelson Rockefeller, acting as President of the Senate, ruled that the debate over a rule change could be ended with a simple majority. Mansfield opposed Rockefeller's ruling and introduced a motion that was quickly tabled, 51-42, thus endorsing the majoritarian decision of Rockefeller. Conservatives were outraged and Mansfield, Byrd, and Minority Leader Robert Griffin attempted to overturn the precedent. Ultimately a proposal by Sen. Russell Long to change the cloture limit to 3/5 for two years and then revert back to the original 2/3 limit led to a compromise between the two factions to overcome Rockefeller's ruling. The Senate accepted the 3/5 cloture limit by a vote of 56-27.

The "nuclear option"
During President Bush’s first term (2001-2005), Democrats filibustered 10 of 229 of his judicial nominations. In 2005, then-Senate Majority Leader Bill Frist (R-Tenn.) threatened to use the “nuclear option” to stop these filibusters. In this scenario, Republicans could seek a ruling from the chamber's presiding officer, Vice-President Dick Cheney, that filibusters against judicial nominees are unconstitutional. Under this procedure, it would take only a simple majority of 51 votes to uphold the ruling, and only 51 votes to confirm a nominee. Republicans held a 55-45 majority at the time, and this would have almost guaranteed approval of most, if not all, of Bush’s nominees.

Ultimately, a compromise was reached by a group of fourteen moderate senators (seven Republicans, seven Democrats). Under the pact, Republicans agreed to abandon the "nuclear option," while Democrats agreed not to block all but two of Bush's existing judicial nominees. In addition, Democrats promised not to filibuster future judges (including Supreme Court ones) unless "extraordinary circumstances" were present. The fourteen senators who struck the compromise soon became known as the "Gang of 14." The following members were part of the group:

Republicans


 * John McCain (R-Ariz.)
 * Lindsey Graham (R-S.C.)
 * John Warner (R-Va.)
 * Olympia Snowe (R-Maine)
 * Susan Collins (R-Maine)
 * Mike DeWine (R-Ohio)
 * Lincoln Chafee (R-R.I.)

Democrats


 * Joe Lieberman (D-Conn.)*
 * Robert Byrd (D-W.Va.)
 * Ben Nelson (D-Neb.)
 * Mary Landrieu (D-La.)
 * Daniel Inouye (D-Hawaii)
 * Mark Pryor (D-Ark.)
 * Ken Salazar (D-Colo.)

* Lieberman became an independent member of the Senate in the 110th Congress.

Procedural filibuster
In current practice, Senate Rule 22 permits procedural filibusters, in which actual continuous floor speeches are not required, although the Senate Majority Leader may require an actual traditional filibuster if he or she so chooses. This threat of a filibuster can therefore be as powerful as an actual filibuster. Previously the filibustering senator(s) could delay voting only by making an endless speech. Currently they need only indicate that they are filibustering, thereby preventing the senate from moving on to other business until the motion is withdrawn or enough votes are gathered for cloture. Since this change, the procedural filibuster is used frequently, and the traditional filibuster has become increasingly rare.

Prolonging a filibuster after successful cloture vote
While sixty votes is enough to bring a measure to the floor, a determined minority of senators can still delay a vote for about two weeks. Once a motion to invoke cloture passes, a group can still filibuster the bill itself, requiring an additional cloture motion. At that point, the Senate has another thirty hours to consider the bill again. Rule XXII limits the use of this tactic, however, for a vote must occur on either the 11th day of consideration or the 15th day after a motion to proceed was made.

External resources

 * "Filibuster and Cloture in the Senate," U.S. Senate.
 * "Filibuster and Cloture," U.S. Senate.

External articles

 * Julian E. Zelizer, "Why Getting Rid of the Filibuster Is Still a Good Idea," History News Network, May 2, 2005.
 * Carolyn Lochhead, “Senate filibuster showdown averted,” San Francisco Chronicle, May 24, 2005.
 * Garry Gamber, "What Is The Filibuster All About? Got Links, December 9, 2005.
 * Martin Gold and Dimple Gupta, "The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster," Harvard Journal of Law and Public Policy, 2005.
 * Jonathan Weisman, "Republicans Halt Ethics Legislation," Washington Post, January 17, 2007.
 * Thomas Ferraro, "Senate Republicans block minimum wage hike," ABC News, January 24, 2007.
 * Carl Hulse and Brian Knowlton, "Senate expected to approve — eventually — resolution on Iraq," International Herald Tribune, February 6, 2007.