Filibusters: The Debate Goes On
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 108th 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
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
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
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 104th Congress that was similar to the
proposal Frist introduced in the 108th. 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.”
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