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Whether or not you like the filibuster probably depends on whether your “team” has control of the Senate. If your team has control of the upper chamber, you’re likely frustrated by this procedural motion. If you’re in the minority, you’re happy that the filibuster exists because it stops what you view as bad policy from advancing.
Democrats and Republicans have expressed frustration with what we commonly call the filibuster when they have the majority in the Senate.
Democrats proposed changes to the filibuster in 2012 and 2013. Sen. Jeff Merkley (D-OR) proposed placing a heavier emphasis on the “talking filibuster,” similar to Jefferson Smith’s filibuster in the 1939 movie Mr. Smith Goes to Washington. Merkley’s proposal would’ve left the procedural vote to move to final passage in place, but the threshold would’ve been lower from three-fifths of the Senate present and voting (60 votes if all senators are present) to a simple majority. Others have proposed lowering the threshold from three-fifths of senators present and voting. None of these proposals were implemented.
In 2017 and 2018, then-President Trump urged Republicans to eliminate the filibuster. Even Sen. Ted Cruz (R-TX), who had previously opposed getting rid of the filibuster, changed his tune and wanted to remove the procedural hurdle. However, a bipartisan group of more than 60 senators signed a letter in April 2017 in support of the filibuster, and it remained intact.
In January 2022, Sen. Chuck Schumer (D-NY) attempted to eliminate the filibuster for the Freedom to Vote: John R. Lewis Act, H.R. 5746. House progressives had urged Schumer and Senate Democrats to eliminate the filibuster. Up until that point, Schumer had resisted. The proposal to eliminate the filibuster was only for this single piece of legislation.
After Republicans blocked the bill from advancing, Schumer made a point of order to essentially bypass the filibuster. Following the Standing Rules of the Senate, the point of order wasn’t sustained. Schumer appealed the ruling of the presiding officer. Appealing the ruling of the chair requires only a simple majority. Although Democrats had 51 seats, Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) voted to keep the filibuster in place. (Manchin and Sinema were affiliated with the Democratic Party at the time of the vote.)
Democrats have since backtracked on nixing the filibuster. Rep. Pramila Jayapal (D-WA), who co-chairs the Congressional Progressive Caucus, said the quiet part out loud at a recent press conference. “Am I championing getting rid of the filibuster now, when the Senate has the trifecta? No,” Jayapal said. “But had we had the trifecta, I would have been, because we have to show that government can deliver.”
The debate over the filibuster is more about power than anything else. It’s hard to say it’s about legislative wins because those same legislative wins can be reversed by a simple majority vote in a filibuster-less Senate just as easily as they were passed. Americans will be caught in a world of uncertainty as Congress passes and repeals laws enacted by the other party each time control changes hands. It’s a ping-pong game no one wins.
For now, the filibuster remains in place, and it should stay in place because it requires senators to reach across the aisle and build consensus. Bipartisan legislation is, after all, what has the most credibility with voters, particularly independent voters.
What Is the Filibuster?
The filibuster has existed in some form in the Senate since the 1st Congress in 1789. The journal of William Maclay, a senator from Pennsylvania in the 1st Congress, tells us that Virginians in the Senate sought to “talk away the time” to block legislation aimed at making Philadelphia the nascent United States’ capital city.
Filibusters became more common in the 19th century Senate, and there wasn’t a mechanism to end debate on pending legislation. Henry Clay of Kentucky made at least one attempt in 1841 to create such a motion, but he abandoned the effort. The Senate created the motion to limit debate in 1917 ahead of the United States’ entrance into World War I after a group of senators blocked legislation to arm American merchant ships. The first usage of the motion was on the Treaty of Versailles. Although debate was limited, the treaty wasn’t ratified by the Senate.
Typically, when people talk about the filibuster, they refer to what we know as a cloture (a procedure to end debate and take a vote) motion on legislation and nominees. This is found in Rule XXII of the Standing Rules of the Senate. Rule XXII requires that a motion signed by 16 senators be submitted to bring debate on legislation or a nomination to a close. The Senate considers that motion. If three-fifths of senators present and voting agree to limit debate, then the Senate goes into 30 hours of post-cloture time before a vote on final passage. This post-cloture time can be avoided if there’s a time agreement to limit it.
Typically, there are two cloture motions that are filed on legislation in the Senate. The first is on the cloture motion to the motion to proceed, which, again, requires a three-fifths affirmative vote. This is often a critical test vote to determine whether legislation has enough bipartisan support for the Senate to position itself to begin debate. After cloture on the motion to proceed, debate is limited to 30 hours on the motion unless there’s a time agreement. After the 30 hours have elapsed, the Senate votes on the motion to proceed, for which a simple majority is required. This is known as “getting on the bill.”
After the motion to proceed has been agreed to, the Senate begins debate on the legislation until there’s a cloture motion filed to limit debate. If cloture is invoked, debate is limited to 30 hours, absent a time agreement. Usually, during this time, the Senate will also vote on amendments. Although amendments can require cloture motions on their own, the Senate has generally avoided this practice, requiring three-fifths to adopt an amendment instead. After post-cloture time has ended and all amendments presented have been processed, the Senate moves to a final vote.
Cloture motions have become routine in the Senate, but that hasn’t always been the case. As hyper-partisanship has seeped into the Senate, the number of cloture motions filed each Congress has increased. In the 107th Congress (2001-2002), 71 cloture motions were filed in the Senate. Cloture was invoked roughly 48 percent of the time. In the 117th Congress (2021-2022), 336 cloture motions were filed, and it was invoked a little more than 80 percent of the time.
Most of the legislation cleared in the Senate in the 118th Congress passed through unanimous consent, meaning there weren’t recorded votes. Rule XXII didn’t apply. A single senator can block a unanimous consent request to pass a measure out of the Senate.
Now, going through the process of considering legislation on the floor with cloture motions isn’t the only way to get it through the Senate. The majority party can enforce Rule XIX, and its leaders can do that without eliminating the three-fifths threshold required under Rule XXII, under which no senator can give more than two speeches in the same legislative day. (A legislative day isn’t a calendar day. As long as the Senate recesses rather than adjourns, it’ll stay in the same legislative day.)
The minority party can still delay consideration of the legislation under Rule XIX, but any senator wishing to do so would have to speak without yielding the floor. This is a talking filibuster. The longest filibuster in the Senate’s history lasted just over 24 hours. When senators in the minority who wish to speak against the legislation have given two speeches each, the Senate moves to the question of whether to approve the motion to proceed or final passage.
Sounds easy enough, right? Not exactly. Enforcement of Rule XIX could take a lot of time. Potentially, we’re talking weeks, depending on how long senators wishing to speak against the legislation have control of the floor. Some, though, would consider this a feature, not a bug of Senate rules, myself included.
There are, of course, some expedited procedures that bypass the cloture motion. The most common fast-track procedures are the budget reconciliation process provided under the Budget Act of 1974 and the Congressional Review Act, although there are others that are even more limited and less frequently used. Consideration of a bill with a message from the House can avoid the initial cloture motion on the motion to proceed. Only bills that have passed the Senate and have been subsequently amended by the House and sent back to the Senate with a message can avoid the cloture motion to the motion to proceed. The cloture motion to limit debate still applies.
What Changes to the Filibuster Have Already Happened?
When the cloture motion was made part of the Standing Rules of the Senate, the threshold to limit debate was two-thirds of senators present and voting. If all 100 senators under this threshold were present and voting, the threshold was 67 votes. The Senate lowered the threshold in 1975 to the current three-fifths of senators present and voting.
Since 1975, there have been two significant changes to the cloture motion. The first change occurred in November 2013. The three-fifths threshold also applied to individuals nominated by the president to serve in posts that required confirmation by the Senate. Although Democrats had the majority in the Senate, Republicans successfully blocked three nominees to the U.S. Court of Appeals for the District of Columbia Circuit. This circuit court is often considered the second most powerful federal court because it hears a high number of administrative law cases.
Known as the “nuclear option,” Senate Majority Leader Harry Reid (D-NV) made a point of order to lower the threshold for cloture to a simple majority for all nominees, excluding only those nominees to the Supreme Court. The presiding officer rejected the point of order. Reid appealed the ruling, and the Senate voted to overturn the ruling. Three Democrats voted with Republicans–Sens. Carl Levin (D-MI), Joe Manchin (D-WV), and Mark Pryor (D-AR).
Senate Majority Leader Bill Frist (R-TN) floated the “nuclear option” in 2005 after Democrats continuously blocked several circuit court nominees. Cooler heads–the bipartisan “Gang of 14”–agreed to move circuit court nominees, except when there were “extraordinary circumstances.” Absent a similar group of cooler heads in November 2013, Reid did what Frist wasn’t able to do.
In April 2017, Senate Majority Leader Mitch McConnell (R-KY) and Republicans took the next step by lowering the cloture threshold to a simple majority for Supreme Court nominations.
Democrats, of course, opposed the change. Schumer’s unsuccessful attempt to change the threshold for the cloture motion regarding the Freedom to Vote: John R. Lewis Act was the only attempt since April 2017.
The Senate Isn’t Supposed to Operate Like the House
The escalation we’ve seen in congressional politics is taxing. Hyper-partisan politics incentivize Democrats and Republicans to continue one-upping each other or otherwise retaliate against each other. That’s what causes coalition building and consensus to break down.
The House is the chamber where partisan politics thrives. It’s the nature of the institution. Most legislation that passes in the House isn’t controversial and doesn’t get much, if any, real opposition. The House doesn’t have the same procedural hurdles that the Senate does, so even if a bill has to come to the floor under a special rule to provide for its consideration, a simple majority is all that’s required to get it through. The House is closer to the people, and thus, members’ voting habits tend to reflect their respective communities more accurately.
Since the ratification of the Seventeenth Amendment, senators have been directly elected. Prior to ratification, senators were chosen by their state legislatures. Still, each state has two senators, and each state has diverse communities and concerns. The Senate is supposed to be the “world’s most deliberative body.” It was intended to be thoughtful in its approach to the issues that come before it: to develop consensus, not to be reactive and hasty.
The current approach to cloture motions and the filibuster can still help forge consensus. For that consensus to be formed, senators need to learn a) that they’re not going to get all of what they want on legislation that comes to the floor for a vote, and b) that the base of their party quite often doesn’t reflect the sentiment of a majority of Americans.
Ultimately, that’s what independent voters want. They want elected officials to reach across the aisle and work together to solve America’s problems and put themselves and the next generation on a path to prosperity so that they too can live the American Dream.
