Nothing gives the Senate its distinctive character more than the filibuster.  Being able to conduct filibusters and thus prevent legislation from becoming law makes the minority a force that has to be reckoned with (unless the majority is large enough to have enough votes to end a filibuster), and ensures that legislation passed by the Senate will have at least a tinge of bipartisanship.  But just as the filibuster is the mightiest weapon in the arsenal of the minority, it is the biggest thorn in the side of the majority. 
            In recent years, the number of filibusters has increased – cloture votes to end filibusters were held at nearly twice the rate in the last five Congresses as they were held in Congresses stretching from 1975-1994.  The frustration of the majority has grown correspondingly.  In particular, the use of filibusters to block judicial nominations has become the focus of controversy in recent years.  Republicans claim that Democrats in the 108^th Congress violated what had been a longtime unwritten understanding in the Senate when they began filibustering nominations to the U.S. Courts of Appeal.
            Majority Leader Bill Frist (R-TN) responded by introducing a proposal to change Senate rules regarding filibusters of nominations.  Currently, 60 votes are needed to invoke cloture and cut off debate, thereby ending a filibuster.  Frist’s proposal would have lowered the number of votes required for passage on successive votes to invoke cloture.  The first time cloture would be attempted on a debate, 60 votes would be needed to pass it.  But the second time cloture would be attempted; only 57 votes would be necessary; the third time would require only 54 votes for passage; and the fourth time would require only a simple majority of 51 votes.
 
Nuclear Fallout on the Senate Floor?
            Frist’s proposal was not adopted, so the Senate rules did not change.  However, the issue remains contentious, and the focus has now switched to talk of the Republicans utilizing the “nuclear option.”  The objective of this option is similar to Frist’s earlier proposal:  to change Senate rules, so that only 51 votes would be required to break a filibuster of a judicial nomination.  What makes this alternative so potentially explosive is the way that change would be implemented. 
            The Senate is normally very reluctant to change its rules.  Any proposal to do so is debatable, and therefore open to being filibustered.  To ensure that any change in the rules has widespread support, Senate rules specify that to invoke cloture and cut off debate on a proposal to change a Senate rule, not just 60 votes are needed, but 67.  If the Republicans introduced a proposal to change the rules so that only 51 votes would be needed to end a filibuster of a judicial nomination, the Democrats would likely filibuster that proposal.  The nuclear option would ensue if a Republican were then to raise a parliamentary objection, claiming that filibusters against judicial nominations are unconstitutional.  If the presiding officer ruled in favor of the objection, the Democrats would probably appeal that decision.  However, it would only take a majority vote to sustain the presiding officer’s ruling.  The bottom line, according to former longtime Senate parliamentarian Bob Dove, is that, contrary to what a lot of people think, a determined majority in the Senate together with the vice-president can change the body’s procedures.
            It is called the nuclear option because it is thought the use of it would so enrage the Democrats that it would destroy any cooperation between the parties and bring everything in the Senate to a standstill.  Anything else the Senate needed to pass, whether Social Security reform or limits on medical malpractice lawsuits or energy policy, would presumably not survive the aftermath of the battle over filibuster rules.
 
A Little Background on Filibusters
            Most people’s image of a filibuster is Jimmy Stewart in the movie “Mr. Smith Goes to Washington”: a single individual speaking on the Senate floor and not yielding the floor until exhaustion makes him or her physically unable to continue.  (The record for the longest continuous speech by one person is held by Senator Strom Thurmond (then D-SC), who spoke against civil rights legislation in 1957 for 24 hours and 18 minutes.  Second place goes to Senator Alphonse D’Amato (R-NY), who spoke on military funding for 23 hours and 30 minutes in 1986.)
            In fact, just the threat of the use of such tactics can keep a piece of legislation from being brought to the Senate floor until the concerns of the senator or senators threatening to conduct the filibuster are addressed.  This is how legislation can be filibustered for months even though no debate on the matter is being conducted on the Senate floor.
            As important as filibusters are to Senate procedures, the term “filibuster” never appears anywhere in Senate rules.  From its very beginning, Senate rules have precluded restrictions on debate.  Originally, debate ended only when there was a unanimous consent agreement to end it or when exhaustion overtook the debater.  It wasn’t until 1917 that the Senate adopted Rule XXII which established cloture as a means of ending debate.  Cloture could not be invoked unless two-thirds of all Senators present voted for it.
            Rule XXII was amended in 1975 to reduce the number of votes needed to 60 in order to cut off debate on any motion except one to change Senate rules.  That change was originally accomplished by a procedure very similar to the “nuclear option” being discussed today.  That also generated a great deal of outrage, and brought things to a halt in the Senate for three weeks, until debate on the issue was ended by a cloture vote of 73-21.
            Filibusters have long frustrated the lives of the majority, and there have been a number of attempts by both parties to reduce the disruption they cause.  Senators Tom Harkin (D-IA) and Joe Lieberman (D-CT) introduced a proposal at the start of the 104^th Congress that was similar to the proposal Frist introduced in the 108^th.  It would have reduced the number of votes needed for passage on successive attempts to invoke cloture on any filibuster from 60 votes to 51.
            Almost all attempts in the past to limit the effectiveness of filibusters have failed, perhaps because those in the majority realize that they may someday be in the minority and may need the filibuster to protect their rights and achieve their objectives.  As Senator Pete Domenici (R-NM) said last year of Frist’s proposal, “I’m going to have to think it through.  What’s going to happen when we have the shoe on the other foot?”  Senators may heed the words of Senator Robert Byrd (D-WV)when Rule XXII was changed in 1975: “May I say to those of us on our side, that the day may come – although I hope it will not be in my time – when we will be in the minority, and it will take only 51 senators from the other side of the aisle to stop debate immediately, without one word, on some matter which we may consider vital to our states or to the nation.”
 
Howard Stevens
Senior Fellow