DECONSTRUCTING THE FILIBUSTER

Capitol Hill

By Akanksha A. Panicker

A filibuster is a parliamentary procedure that essentially blocks a measure from being brought to a vote, most commonly being used in an attempt to delay a bill or even stop it altogether by prolonging debate on it. The filibuster method is used in the U.S. Senate to keep an account from having a vote. The Senate filibuster is a traditional legislative pause method where one or more senators try to block a bill from voting by extending the proposal’s discussion. The Senate rules authorize a senator, or a sequence of senators, to talk for as long as required or desired, on just about any issue they prefer, until ‘three-fifths of the Senators duly chosen and sworn’ (currently sixty out of 100) agree to end the debate by triggering cloture under Senate Rule XXII(22).

The Senate cloture rule, which needs sixty votes to approve most bills, is a  formidable challenge for any new president’s legislative agenda. Opinions from both sides have lobbied for changes in the midst of partisan gridlock, and the filibuster has often been central in this battle. 

[1.0] BACKGROUND

The opportunity to discuss a bill indefinitely and thereby stop a measure from progress was a by-product of a rule reform in 1806 and was seldom used until the 20th century. In 1970, the Senate modified the previous ‘two-track’ method to prevent indiscriminate use of the filibuster from impeding Senate business. The minority felt safer threatening filibusters more often, and as a result, sixty votes rather than forty-one became the standard needed to avoid discourse on virtually any contentious topic. As a result, the contemporary Senate has been a sixty-vote legislature, a surprising extant standard for authorizing legislation or matters.

Efforts to restrict the tradition include legislation that renders it disallowed to discuss the Senate for more than a given amount of time, such as the Congressional Budget and Impoundment Control Act of 1974. In 2013 and 2017, the Senate reduced the threshold of achievement for triggering cloture to a simple majority, but most legislature requires sixty votes.

One or more senators may occasionally hold the floor for an extended period, sometimes without the Senate leadership’s advance knowledge. However, these ‘filibusters’ usually result only in brief delays. They 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. 

[1.2] HISTORY

Using the filibuster to delay or block legislative action has a long history. The term filibuster originated from a Dutch word for pirate. The name rose to popularity in the 1850s when applied to efforts to hold the Senate floor to prevent a vote on a bill.

It was only recently that the filibuster became an option for Senators alone. In the formative days of the Congress, both delegates and senators could become involved in a filibuster. However, when the House of Representatives included more members, the revision of the House’s laws contributed to the restricting of debate. The Senate continued discussing whether the tiny Senate should allow unrestricted discussion on any topic and whether any senator should also have the freedom to talk as long as possible on every issue.

By 1917, the Senate introduced legislation (Rule 22) relying upon President Woodrow Wilson’s support to bring an end to the debate with a two-thirds majority vote. Thus, this legislation birthed the cloture rule, the use of which was at its most historically significant when the Senate called for cloture to end the filibuster against the Treaty of Versailles. Even with the revised cloture law, filibusters remained an important way of blocking bills, as it is arduous to achieve a two-thirds majority in Senate voting.  For the next five decades, the Senate has periodically attempted to use cloture but has typically struggled to win the requisite two-thirds of the vote. Filibusters became especially beneficial to Southern senators who tried to block equal rights measures, including anti-lynching legislation, until, after a sixty-day filibuster against the Civil Rights Act of 1964, the closure was invoked. In 1975, the Senate lowered the number of votes needed to be closed from two-thirds to three-fifths, or sixty of the existing hundred senators. In 1979 and 1986, the Senate further limited debate once the Senate had imposed cloture on the pending business.

Consequentially, the discussion will only be suspended on specific Senate topics if at least sixty senators accept it. This rule is not uniformly accurate, however. Although the Senate laws now need only a simple majority to enact the law ultimately, some procedural measures along the way require a supermajority of sixty votes to conclude the discussion on the legislation. 

[2.0] PROCEDURE FOR THE FILIBUSTER

Senators possess two alternatives when the time comes to cast a vote on a measure or resolution. Quite commonly, the majority leader (or another senator) requests ‘unanimous consent,’ addressing a hundred senators to identify if any one of the objects to the debate’s conclusion and a vote. If no objection has been raised, the Senate shall proceed to an option. When the majority leader cannot gain all hundred senators’ consent, the Senator who brought forth the motion for conclusion typically considers a cloture motion, which then allows Sixty votes to be taken. If less than sixty senators, the chamber’s supermajority, favor cloture, that’s when the filibuster is said to have occurred.

The extended debate is only one technique for delaying legislative action. A filibuster could also allow for [A.]anonymous holds that would allow senators to block bills or nominations that require unanimous consent of senators to be voted on [B.] continual introduction of amendments with filibustering senators reading each amendment in full, rather than waiving the right to do so, as is customary to take up time, [C. ]  lengthy roll-call votes on each amendment and other issues, using up time, [D.] quorum calls, which ascertain the number of senators present, used to delays and forced senators to return to chamber and [E.] delay of the bill’s final passage for up to two weeks even after cloture is passed. 

[2.1] EXCEPTIONS TO THE FILIBUSTER

The function of the Senate currently entails the submission of cloture motions; there are few significant exceptions. The most notable among these include promotions to executive offices and federal judgeships. Due to two constitutional amendments introduced in 2013 2017, only a simple majority is needed to complete the discussion. The second covers specific policy categories on which the Congress has hitherto adopted special procedures penned in the statute itself that restrict the time for discussion. There is no real reason to invoke cloture to circumvent the debate as there is a set period of time for discussion in these situations. Special budget laws, known as the budget reconciliation process,  are most commonly thought of when considering this self-timed legislation debated. These budget processes mandate a clear majority to pass such bills concerning entitlement expenditure and revenue requirements, thus preventing the filibuster from occurring in the first instance. 

Additionally, Congress has periodically provided a  supposed ‘fast track’ authority for the President to negotiate international trade agreements. After the President submits a deal, Congress can then approve or deny the agreement but cannot amend it nor filibuster.

[3.0] CONSEQUENCES AND PROCEDURE IN THE EVENT OF ELIMINATING THE FILIBUSTER

Indeed, the most direct approach to abolishing the filibuster would be to officially modify the text of Rule 22 of the Senate since it exists as the sanctioning cloture rule responsible for the mandate of sixty votes to conclude the parliamentary debate. However, a major issue with amending Rule 22 is that shelving the debate on a motion to amend the Senate’s standing rules cannot move forward without the approval of two-thirds of the Senate members in their full legislature capacity ( being present and voting). In the absence of a broad, bipartisan Senate majority favoring a restriction in the right to debate, a formal amendment to Rule 22 is exceedingly dubious, although the most comfortable way forward on paper.

The development of a new Senate precedent to ban the filibuster will likely be a more grueling journey. In addition to its formal guidelines, the Chamber’s precedents give further insight into how and why the rules have been implemented in different ways. Crucially, in certain cases, that solution to eliminating the filibuster- colloquially recognized as the ‘nuclear option’ but more formally classified as the ‘reform by the ruling’- can only be deployed by using the help of a simple majority of senators.

The nuclear choice integrates the premise that a new precedent may be set by a senator introducing a point of order or arguing that a Senate law is being abrogated in its effect. Upon approval by the president officer (usually a member of the Senate), the vote sets a new precedent. If the president officer disagrees, their decision may also be d challenged. If the majority of the Senate votes to revoke the Chair’s decision, the reverse of the Chair’s decision will become a new precedent.

In a procedural twist, the Senate used this approach in 2013 and 2017 to reduce the number of votes needed to debate nominations.  Through an ingenious use of the point of order system, the majority leader put forth the nominations via non-debatable motions. However, they thereinafter vocalized the point of order, citing that the cloture vote needed the majority vote that violated the principle of the non-debatable movements. The presiding officer ruled against the end of the charge, but the ruling was overturned on appeal. Interestingly, the request that overturned the ruling also required only a majority in support. The parliamentary procedure can thereinafter be used in a manner to phase out the filibuster procedure. 

[3.1] REDUCING THE EFFECTIVENESS OF THE FILIBUSTER

The Senate could still try to undermine the filibuster before wholly banning it. A Senate majority may trigger a less-radical version of the nuclear plan that prohibits filibusters on individual motions but otherwise retains the sixty-voting law unaffected. A majority in the Senate might prohibit senators from filibustering a motion responsible for a  bill to commence (known as the motion to proceed).  Hence, senators’ ability to filibuster the new account or amendment will be retained while essentially shutting out the supermajority hurdle for beginning a vote on a statutory proposal.

The principle of supermajority has made it extremely difficult, frequently inconceivable, for Congress to implement anything but the least contentious bills in recent years. The quantum of bills approved by the Senate has significantly plummeted. Meanwhile, voter acceptance of Congress as an entity has nosedived, with major components of the community viewing the institution as ineffective. Changing majorities of both parties and their supporters have also been unsuccessful in achieving core legislative goals expressed in electoral campaigns since these goals cannot be realized after the election. An example that most clearly highlights the situation was when the Democratic Party, despite their substantial majority in the 111th Congress, still had to withdraw the Affordable Care Act’s ‘public option’ clause because senator-Joe Lieberman of Connecticut had threatened to filibuster the bill if it stayed.

There is also no objective formula to quantify the extent to which the filibuster is still employed through the years. Senators are not allowed to officially register their opposition to the conclusion of the debate until a cloture resolution is finally put to the ballot. If Senate leaders recognize that at least 41 senators expect to reject a cloture vote on a particular bill or motion, they frequently opt not to schedule it for debate on the floor. But the number of cloture movements filed is a convenient metric for the calculation of filibusters. The number of such activities has risen dramatically in the 20th and 21st centuries after the popularisation of the filibuster’s second life.

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Sources

1. At times, the ‘nuclear option’ has been proposed to eliminate the sixty 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 sixty-vote rule to close debate, by a simple majority (51 votes if all 100 senators are present) than the two-thirds supermajority typically required to amend the controls.

2. On November 21, 2013, by overturning a ruling of the chair on appeal, the Senate set a precedent that lowered the vote threshold required by Senate Standing Rule XXII for invoking cloture on most presidential nominations. The precedent did not change the text of Rule XXII of the Standing Rules; instead, the Senate established a precedent reinterpreting the provisions of Rule XXII to require only a simple majority of those voting, rather than three-fifths of the full Senate, to invoke cloture on all presidential nominations except those to the U.S. Supreme Court.

3. “Vote on S. Con. Res. 3, 115th Congress”. U.S. Senate.

The Senate passed the FY17 budget resolution that included reconciliation instructions for health care reform by a 51–48 vote on January 12, 2017, and by the House on a 227–198 option the following day. The House later passed the American Health Care Act of 2017 as the FY17 budget reconciliation bill by a vote of 217–213 on May 4, 2017

4. Budget reconciliation is a procedure created in 1974 as part of the congressional budget process. In brief, the annual budget process begins with adopting a budget resolution (passed by a simple majority in each house, not signed by the President, does not carry the 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, always relying (as of 2017) on the Senate parliamentarian’s opinion, determines whether an item is extraneous, and a sixty-vote majority is required to include such material in a reconciliation bill.

5. 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,

6. The Senate’s Standing Rules are the parliamentary procedures adopted by the United States Senate that govern its operation. The Senate’s power to establish rules derives from Article One, Section 5 of the United States Constitution: ‘Each House may determine the management of its proceedings…

7. At the 85th Congress in 1957-59, more than 25 percent of all bills proposed by the Senate were eventually enacted; by 2005, the number had fallen to 12.5 percent, and by 2010, only 2.8 percent of the bills introduced became law—a 90 percent decline from the previous 50 years

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