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A filibuster in the United States Senate usually refers to any dilatory or obstructive tactics used to prevent a measure from being brought to a vote. The most common form of filibuster occurs when a senator attempts to delay or entirely prevent a vote on a bill by extending the debate on the measure, but other dilatory tactics exist. The rules permit a senator, or a series of senators, to speak for as long as they wish and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" (usually 60 out of 100 senators) brings debate to a close by invoking cloture under Senate Rule XXII. According to the Supreme Court ruling in U.S. v. Ballin (1892), changes to Senate rules could however be achieved by a simple majority.
Nevertheless, under current Senate rules, a rule change itself could be filibustered, and in this case votes from two-thirds of the Senators present and voting would be required to break the filibuster. Despite this written requirement, the possibility exists that the filibuster could be changed by majority vote, using the so-called nuclear option.
In 1789, the first U.S. Senate adopted rules allowing the Senate "to move the previous question," ending debate and proceeding to a vote. Aaron Burr argued that the motion regarding the previous question was redundant, had only been exercised once in the preceding four years, and should be eliminated. In 1806, the Senate agreed, recodifying its rules, and thus the potential for a filibuster sprang into being. Because the Senate created no alternative mechanism for terminating debate, the filibuster became an option for delay and blocking of floor votes.
The filibuster remained a solely theoretical option until the late 1830s. The first Senate filibuster occurred in 1837. In 1841, a defining moment came during debate on a bill to charter the Second Bank of the United States. Senator Henry Clay tried to end debate via majority vote. Senator William R. King threatened a filibuster, saying that Clay "may make his arrangements at his boarding house for the winter." Other Senators sided with King, and Clay backed down.
Contemporary scholars point out that in practice, narrow Senate majorities were able to enact legislation. Majorities were able to prevail because of an implicit threat that the filibuster could itself be changed by majority rule if the minority used it to prevent, instead of merely to delay, votes on measures supported by a bare majority.
In 1917, a rule allowing for the cloture of debate (ending a filibuster) was adopted by the Democratic Senate at the urging of President Woodrow Wilson after a group of 12 anti-war Senators managed to kill a bill to allow Wilson to arm merchant vessels in the face of unrestricted German submarine warfare. From 1917 to 1949, the requirement for cloture was two-thirds of those voting. Despite the formal requirement, however, political scientist David Mayhew has argued that in actual practice, it was unclear whether a filibuster could be sustained against majority opposition.
During the 1930s, Senator Huey P. Long effectively used the filibuster against bills that he thought favored the rich over the poor. The Louisiana senator frustrated his colleagues while entertaining spectators with his recitations of Shakespeare and his reading of recipes for "pot-likkers." Long once held the Senate floor for 15 hours.
In 1946, Southern Senators blocked a vote on a bill proposed by Democrat Dennis Chavez of New Mexico (S. 101) that would have created a permanent Fair Employment Practices Committee (FEPC) to prevent discrimination in the work place. The filibuster lasted weeks, and Senator Chavez was forced to remove the bill from consideration after a failed cloture vote even though he had enough votes to pass the bill. As civil rights loomed on the Senate agenda, this rule was revised in 1949 to allow cloture on any measure or motion by two-thirds of the entire Senate membership; in 1959 the threshold was restored to two-thirds of those voting.
One of the most notable filibusters of the 1960s occurred when southern Democratic Senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by making a filibuster that lasted for 75 hours, which included a 14 hour and 13 minute address by Robert Byrd (D-WV). After the series of filibusters in the 1960s over civil rights legislation, a "tracking" system devised by then Majority Whip Robert Byrd was put into place. Tracking allows the majority leader — with unanimous consent or the agreement by the minority leader — to have more than one bill pending on the floor as unfinished business. Before the introduction of tracking, a filibuster would stop the Senate from moving on to any other legislative activity. With a two-track system, the Senate simply puts aside the filibustered measure and moves on to other legislation.
Finally, in 1975 the Democratic-controlled Senate revised its cloture rule so that three-fifths of the Senators sworn (usually 60 senators) could limit debate, except on votes to change Senate rules, which require two-thirds to invoke cloture. Another type of filibuster used in the Senate, the post-cloture filibuster (using points of order to consume time, since they are not counted as part of the limited time provided for debate), was eliminated as an effective delay technique by a rule change in 1979.
The filibuster or the threat of a filibuster remains an important tactic that allows a minority to affect legislation. Senator Strom Thurmond (then D-SC, later R-SC)) set a record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes, although the bill ultimately passed. Thurmond broke the previous record of 22 hours and 26 minutes which Wayne Morse (I-OR) had established in 1953 protesting the Tidelands Oil legislation.
The perceived threat of a filibuster has tremendously increased since the 1960s, as suggested by the increase in cloture motions filed. A motion for cloture is filed not only to overcome filibusters in progress, but also to preempt ones that are only anticipated. In the 1960s, no Senate term had more than seven votes on cloture. By the first decade of the 21st century, the number of votes on cloture per Senate term had risen to no fewer than forty-nine. The 110th Congress broke the record for cloture votes, reaching 112 at the end of 2008.
Budget bills are governed under special rules called "reconciliation" which do not allow filibusters. Reconciliation once only applied to bills that would reduce the budget deficit, but since 1996 it has been used for all matters related to budget issues.
A filibuster can be defeated by the majority party if they leave the debated issue on the agenda indefinitely, without adding anything else. Indeed, Thurmond's own attempt to filibuster the Civil Rights Act was defeated when Senate Majority Leader Mike Mansfield refused to refer any further business to the Senate, which required the filibuster to be kept up indefinitely. Instead, the opponents were all given a chance to speak, and the matter eventually was forced to a vote. Thurmond's aforementioned stall holds the record for the longest filibuster in U.S. Senate history at 24 hours, 18 minutes.
Even if a filibuster attempt is unsuccessful, the process takes valuable floor time. In recent years the majority has preferred to avoid filibusters by moving to other business when a filibuster is threatened and attempts to achieve cloture have failed.
In the modern filibuster, the senators trying to block a vote do not have to hold the floor and continue to speak as long as there is a quorum. In the past, when one senator became exhausted, another would need to take over to continue the filibuster. Ultimately, the filibuster could be exhausted by a majority who would even sleep in cots outside the Senate Chamber to exhaust the filibusterers. Today, the minority just advises the majority leader that the filibuster is on. All debate on the bill is stopped until cloture is voted by three-fifths (now 60 votes) of the Senate. Some modern Senate critics have called for a return to the old dramatic endurance contest but that would inconvenience all senators who would have to stay in session 24/7 until the filibuster is broken.
In 2005, a group of Republican senators led by Senate Majority Leader Bill Frist (R-TN), responding to the Democrats's threat to filibuster some judicial nominees of President George W. Bush to prevent a vote on the nominations, floated the idea of having Vice President Dick Cheney, as President of the Senate, rule from the chair that a filibuster on judicial nominees was inconsistent with the constitutional grant of power to the president to name judges with the advice and consent of the Senate (interpreting "consent of the Senate" to mean "consent of a simple majority of Senators," not "consent under the Senate rules"). Senator Trent Lott, the junior Republican senator from Mississippi, had named the plan the "nuclear option." Republican leaders preferred to use the term "constitutional option," although opponents and some supporters of the plan continued to use "nuclear option."
On May 23, 2005, a group of fourteen senators was dubbed the Gang of 14, consisting of seven Democrats and seven Republicans. The seven Democrats promised not to filibuster Bush's nominees except under "extraordinary circumstances," while the seven Republicans promised to oppose the nuclear option unless they thought a nominee was being filibustered that was not under "extraordinary circumstances." Specifically, the Democrats promised to stop the filibuster on Priscilla Owen, Janice Rogers Brown, and William H. Pryor, Jr., who had all been filibustered in the Senate before. In return, the Republicans would stop the effort to ban the filibuster for judicial nominees. "Extraordinary circumstances" was not defined in advance. The term was open for interpretation by each Senator, but the Republicans and Democrats would have had to agree on what it meant if any nominee were to be blocked.
On January 3, 2007, at the end of the second session of the 109th United States Congress, this agreement expired.
In the 2007-08 session of Congress, there were 112 cloture votes and some have used this number to argue an increase in the number of filibusters occurring in recent times. However, the Senate leadership has increasingly utilized cloture as a routine tool to manage the flow of business, even in the absence of any apparent filibuster. For these reasons, the presence or absence of cloture attempts cannot be taken as a reliable guide to the presence or absence of a filibuster. Inasmuch as filibustering does not depend on the use of any specific rules, whether a filibuster is present is always a matter of judgment.
On July 17, 2007, Senate Democratic leadership allowed a filibuster, on debate about a variety of amendments to the 2008 defense authorization bill, specifically the Levin-Reed amendment. The filibuster had been threatened by Republican leadership to prompt a cloture vote.
Usually proposals for constitutional amendments are not filibustered. This is because a two-thirds majority is needed to pass such a proposal, which is more than the three-fifths majority needed to invoke cloture. So usually a filibuster cannot change the outcome, because if a filibuster succeeds, the amendment proposal would not have passed anyway. However, in some cases, such as for the Federal Marriage Amendment in 2006, the Senate did vote on cloture for the proposal; when the vote on cloture failed, the proposal was dropped.
The 111th Congress again broke the record for the amount of filibusters in a session, passing one-hundred cloture votes in the first eleven months. In March 2010, freshman senator Al Franken (D-MN) attacked the majority of the filibusters—some on matters which later passed with little controversy—as a "perversion of the filibuster".