Filibuster in the United States Senate

Although not explicitly mandated, the Constitution and its framers clearly envisioned that simple majority voting would be used to conduct business. The Constitution provides, for example, that a majority of each House constitutes a quorum to do business.[3] Meanwhile, a small number of super-majority requirements were explicitly included in the original document, including conviction on impeachment charges (2/3 of Senate),[4] expelling a member of Congress (2/3 of the chamber in question),[5] overriding presidential vetoes (2/3 of both Houses),[6] ratifying treaties (2/3 of Senate)[7] and proposing constitutional amendments (2/3 of both Houses).[8] Through negative textual implication, the Constitution also gives a simple majority the power to set procedural rules: "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."[5]

Commentaries in The Federalist Papers confirm this understanding. In Federalist No. 58, the Constitution's primary drafter James Madison defended the document against routine super-majority requirements, either for a quorum or a "decision":

"It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.

"In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences."[9]

In Federalist No. 22, Alexander Hamilton described super-majority requirements as being one of the main problems with the previous Articles of Confederation, and identified several evils which would result from such a requirement:

"To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. ... The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.”[10]

In 1789, the first U.S. Senate adopted rules allowing senators to move the previous question (by simple majority vote), which meant ending debate and proceeding to a vote. But in 1806, the Senate's presiding officer, Vice President Aaron Burr argued that the previous-question motion was redundant, had only been exercised once in the preceding four years, and should be eliminated.[11] The Senate agreed and modified its rules.[11] Because it created no alternative mechanism for terminating debate, filibusters became theoretically possible.

Nevertheless, in the early 19th century the principle of simple-majority voting in the Senate was well established, and particularly valued by Southern slave-holding states. New states were admitted to the Union in pairs to preserve the sectional balance in the Senate, most notably in the Missouri Compromise of 1820.

Until the late 1830s, however, the filibuster remained a solely theoretical option, never actually exercised. The first Senate filibuster occurred in 1837.[12] 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 the debate via majority vote, and 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.[11]

At the time, both the Senate and the House of Representatives allowed filibusters as a way to prevent a vote from taking place. Subsequent revisions to House rules limited filibuster privileges in that chamber, but the Senate continued to allow the tactic.[13]

In practice, narrow majorities could enact legislation by changing the Senate rules, but only on the first day of the session in January or March.[14]

Headline in The Philadelphia Inquirer of November 16, 1919, reporting the first use of cloture by the United States Senate.

In 1917, during World War I, a rule allowing cloture of a debate was adopted by the Senate on a 76–3 roll call vote[15] at the urging of President Woodrow Wilson,[16] after a group of 12 anti-war senators managed to kill a bill that would have allowed Wilson to arm merchant vessels in the face of unrestricted German submarine warfare.[17]

From 1917 to 1949, the requirement for cloture was two-thirds of senators voting.[18] Despite that formal requirement, however, political scientist David Mayhew has argued that in practice, it was unclear whether a filibuster could be sustained against majority opposition.[19] The first cloture vote occurred in 1919 to end debate on the Treaty of Versailles, leading to the treaty's rejection against the wishes of the cloture rule's first champion, President Wilson.[20] During the 1930s, Senator Huey Long of Louisiana used the filibuster to promote his populist policies. He recited Shakespeare and read out recipes for "pot-likkers" during his filibusters, which occupied 15 hours of debate.[16] In 1946, five Southern Democrats — senators John H. Overton (LA), Richard B. Russell (GA), Senator Millard E. Tydings (MD), Clyde R. Hoey (NC), and Kenneth McKellar (TN) — blocked a vote on a bill (S. 101)[21] proposed by Democrat Dennis Chávez of New Mexico that would have created a permanent Fair Employment Practice Committee (FEPC) to prevent discrimination in the workplace. The filibuster lasted weeks, and Senator Chávez was forced to remove the bill from consideration after a failed cloture vote, even though he had enough votes to pass the bill.

In 1949, the Senate made invoking cloture more difficult by requiring two-thirds of the entire Senate membership to vote in favor of a cloture motion.[22] Moreover, future proposals to change the Senate rules were themselves specifically exempted from being subject to cloture.[23]^:191 In 1953, Senator Wayne Morse of Oregon set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands Oil legislation. Senator Strom Thurmond of South Carolina broke this record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes,[24] although the bill ultimately passed.

In 1959, anticipating more civil rights legislation, the Senate under the leadership of Majority Leader Lyndon Johnson restored the cloture threshold to two-thirds of those voting.[22] Although the 1949 rule had eliminated cloture on rules changes themselves, Johnson acted at the very beginning of the new Congress on January 5, 1959, and the resolution was adopted by a 72–22 vote with the support of three top Democrats and three of the four top Republicans. The presiding officer, Vice President Richard Nixon, supported the move and stated his opinion that the Senate "has a constitutional right at the beginning of each new Congress to determine rules it desires to follow."[25] The 1959 change also eliminated the 1949 exemption for rules changes, allowing cloture to once again be invoked on future changes.[23]^:193

One of the most notable filibusters of the 1960s occurred when Southern Democrats attempted to block the passage of the Civil Rights Act of 1964 by filibustering for 75 hours, including a 14-hour and 13 minute address by Senator Robert Byrd of West Virginia. The filibuster failed when the Senate invoked cloture for only the second time since 1927.[26]

After a series of filibusters in the 1960s over civil rights legislation, the Senate put a "two-track system" into place in 1970 under the leadership of Majority Leader Mike Mansfield and Majority Whip Robert Byrd. Before this system was introduced, a filibuster would stop the Senate from moving on to any other legislative activity. Tracking allows the majority leader—with unanimous consent or the agreement of the minority leader—to have more than one main motion pending on the floor as unfinished business. Under the two-track system, the Senate can have two or more pieces of legislation or nominations pending on the floor simultaneously by designating specific periods during the day when each one will be considered.[27][28]

Cloture voting in the United States Senate since 1917.[29]

The notable side effect of this change was that by no longer bringing Senate business to a complete halt, filibusters on particular motions became politically easier for the minority to sustain.[30][31][32][33] As a result, the number of filibusters began increasing rapidly, eventually leading to the modern era in which an effective supermajority requirement exists to pass legislation, with no practical requirement that the minority party actually hold the floor or extend debate.

In 1975, the Senate revised its cloture rule so that three-fifths of sworn senators (60 votes out of 100) could limit debate, except for changing Senate rules which still requires a two-thirds majority of those present and voting to invoke cloture.[34][35] However, by returning to an absolute number of all Senators (60) rather than a proportion of those present and voting, the change also made any filibusters easier to sustain on the floor by a small number of senators from the minority party without requiring the presence of their minority colleagues. This further reduced the majority's leverage to force an issue through extended debate.

The Senate also experimented with a rule that removed the need to speak on the floor in order to filibuster (a "talking filibuster"), thus allowing for "virtual filibusters".[36] Another tactic, the post-cloture filibuster—which used points of order to delay legislation because they were not counted as part of the limited time allowed for debate—was rendered ineffective by a rule change in 1979.[37][38][39]

As the filibuster has evolved from a rare practice that required holding the floor for extended periods into a routine 60-vote supermajority requirement, Senate leaders have increasingly used cloture motions as a regular tool to manage the flow of business, often even in the absence of a threatened filibuster. Thus, the presence or absence of cloture attempts is not necessarily a reliable indicator of the presence or absence of a threatened filibuster. Because filibustering does not depend on the use of any specific rules, whether a filibuster is present is always a matter of judgment.[40]

In 2005, a group of Republican senators led by Majority Leader Bill Frist proposed having the presiding officer, Vice President Dick Cheney, rule that a filibuster on judicial nominees was unconstitutional, as it was inconsistent with the President's power to name judges with the advice and consent of a simple majority of senators.[41][42] Senator Trent Lott, the junior senator from Mississippi, used the word "nuclear" to describe the plan, and so it became known as the "nuclear option".[43] However, a group of 14 senators—seven Democrats and seven Republicans, collectively dubbed the "Gang of 14"—reached an agreement to temporarily defuse the conflict.[44][45][46]

From April to June 2010, under Democratic control, the Senate Committee on Rules and Administration held a series of monthly public hearings on the history and use of the filibuster in the Senate.[47] During the 113th Congress, two packages of amendments were adopted on January 25, 2013, one temporary for that Congress and one permanent.[48][49] Changes to the permanent Senate rules (Senate Resolution 16) allowed, among other things, elimination of post-cloture debate on a motion to proceed to a bill once cloture has been invoked on the motion, provided that certain thresholds of bipartisan support are met. Despite these modest changes, 60 votes were still required to overcome a filibuster, and the "silent filibuster"—in which a senator can delay a bill even if they leave the floor—remained in place.[50]

On November 21, 2013, Senate Democrats used the so-called "nuclear option," voting 52–48 — with all Republicans and three Democrats opposed — to eliminate the use of the filibuster on executive branch nominees and judicial nominees, except to the Supreme Court.[51] The Democrats' stated motivation was what they saw as an expansion of filibustering by Republicans during the Obama administration, especially with respect to nominations for the United States Court of Appeals for the District of Columbia Circuit[52][53] and out of frustration with filibusters of executive branch nominees for agencies such as the Federal Housing Finance Agency.[52]

In 2015, Republicans took control of the Senate and kept the 2013 rules in place.[54] On April 6, 2017, Senate Republicans eliminated the sole remaining exception to the 2013 change by invoking the "nuclear option" for Supreme Court nominees. This was done in order to allow a simple majority to confirm Neil Gorsuch to the Supreme Court. The vote to change the rules was 52 to 48 along party lines.[55]

Budget reconciliation is a procedure created in 1974 as part of the congressional budget process. In brief, the annual budget process begins with adoption of a budget resolution (passed by simple majority in each house, not signed by President, does not carry 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, relying always (as of 2017) on the opinion of the Senate parliamentarian, determines whether an item is extraneous, and a 60-vote majority is required to include such material in a reconciliation bill.

During periods of single-party control in Congress and the Presidency, reconciliation has increasingly been used to enact major parts of a party's legislative agenda by avoiding the 60-vote rule. Notable examples of such successful use include:

• Omnibus Budget Reconciliation Act of 1993, Pub.L. 103–66 (1993) -- the Clinton budget bill, passed the Senate 51-50. Raised taxes on some high earners.
• Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), Pub.L. 107–16 (2001) -- first set of Bush tax cuts, passed the Senate 58-33.
• Jobs and Growth Tax Relief Reconciliation Act of 2003, Pub.L. 108–27 (2003) -- accelerated and extended Bush tax cuts, passed the Senate 51-50.
• Deficit Reduction Act of 2005, Pub.L. 109–171 (2006) -- slowed growth in Medicare and Medicaid spending and changed student loan formulas, passed the Senate 51-50.
• Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA), Pub.L. 109–222 (2006) -- extended lower rates on capital gains and relief from the alternative minimum tax, passed the Senate 54-44.
• Health Care and Education Reconciliation Act of 2010, Pub.L. 111–152 (2010) -- second portion of Obamacare, passed the Senate 56-43. This law made budget-related amendments to the main Obamacare law, the Patient Protection and Affordable Care Act which had previously passed with 60 votes. It also included significant student loan changes.
• Tax Cuts and Jobs Act of 2017 (2017) -- the Trump tax cuts, passed the Senate 51-48.

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, Congress has from time to time provided so-called "fast track" authority for the President to negotiate international trade agreements. After the President submits an agreement, Congress can then approve or deny the agreement, but cannot amend it nor filibuster. On the House and Senate floors, each body can debate the bill for no more than 20 hours,[57] thus the Senate can act by simple majority vote once the time for debate has expired.

The Congressional Review Act, enacted in 1995, allows Congress to review and repeal administrative regulations adopted by the Executive Branch within 60 legislative days. This procedure will most typically be used successfully shortly after a party change in the presidency. It was used once in 2001 to repeal an ergonomics rule promulgated under Bill Clinton, was not used in 2009, and was used 14 times in 2017 to repeal various regulations adopted in the final year of the Barack Obama presidency.

The Act provides that a rule disapproved by Congress "may not be reissued in substantially the same form" until Congress expressly authorizes it.[58] However, CRA disapproval resolutions require only 51 votes while a new authorization for the rule would require 60 votes. Thus, the CRA effectively functions as a "one-way ratchet" against the subject matter of the rule in question being re-promulgated, such as by the administration of a future President of the opposing party.

The National Emergencies Act, enacted in 1976, formalizes the emergency powers of the President. The law requires that when a joint resolution to terminate an emergency has been introduced, it must be considered on the floor within a specified number of days. The time limitation overrides the normal 60-vote requirement to close debate, and thereby permits a joint resolution to be passed by a simple majority of both the House and Senate. As originally designed, such joint resolutions were not subject to presidential veto. However, following the Supreme Court's decision in INS v. Chadha (1983) which ruled that the legislative veto was unconstitutional, Congress revised the law in 1985 to make the joint resolutions subject to presidential veto.

The War Powers Resolution, enacted in 1973 over Richard Nixon's veto, generally requires the President to withdraw troops committed overseas within 60 days, which the President may extend once for 30 additional days, unless Congress has declared war, otherwise authorized the use of force, or is unable to meet as a result of an armed attack upon the United States.[59] Both the House and Senate must vote on any joint resolution authorizing forces,[60] or requiring that forces be removed,[61] within a specified time period, thus establishing a simple-majority threshold in the Senate.

The supermajority rule has made it very difficult, often impossible, for Congress to pass any but the most non-controversial legislation in recent decades. During times of unified party control, majorities have attempted (with varying levels of success) to enact their major policy priorities through the budget reconciliation process, resulting in legislation constrained by budget rules. Meanwhile, public approval for Congress as an institution has fallen to its lowest levels ever, with large segments of the public seeing the institution as ineffective.[62] Shifting majorities of both parties — and their supporters — have often been frustrated as major policy priorities articulated in political campaigns are unable to obtain passage following an election.

Presidents of both parties have increasingly filled the policymaking vacuum with expanded use of executive power, including executive orders in areas that had traditionally been handled through legislation. For example, Barack Obama effected major changes in immigration policy by issuing work permits to some undocumented workers,[63] while Donald Trump has issued several significant executive orders since taking office in 2017 along with undoing many of Obama's initiatives.[64] As a result, policy in these areas is increasingly determined by executive preference, and is more easily changed after elections, rather than through more permanent legislative policy.

The Supreme Court's caseload has declined significantly, with various commenters suggesting that the decline in major legislation has been a major cause.[65] Meanwhile, more policy issues are resolved judicially without action by Congress — despite the existence of potential simple majority support in the Senate — on topics such as the legalization of same-sex marriage.[66]

In 1993–94, President Bill Clinton enjoyed Democratic majorities in both chambers of the 103rd Congress, including a 57–43 advantage in the Senate. Yet the Clinton health care plan of 1993, formulated by a task force led by First Lady Hillary Clinton, was unable to pass in part due to the filibuster. As early as April 1993, a memo to the task force noted that "While the substance is obviously controversial, there is apparently great disquiet in the Capitol over whether we understand the interactivity between reconciliation and health, procedurally, and in terms of timing and counting votes for both measures...."[67]

In 2001, President George W. Bush was unable to obtain sufficient Democratic support for his tax cut proposals. As a result, the Bush tax cuts of 2001 and 2003 were each passed using reconciliation, which required that the tax cuts expire within the 10-year budget window to avoid violating the Byrd rule in the Senate. The status of the tax cuts would remain unresolved until the late 2012 " fiscal cliff," with a significant portion of the cuts being made permanent by the American Taxpayer Relief Act of 2012, passed by a Republican Congress and signed by President Barack Obama.

In 2009-10, President Barack Obama briefly enjoyed an effective 60-vote Democratic majority (including independents) in the Senate during the 111th Congress. During that time period, the Senate passed the Patient Protection and Affordable Care Act, commonly known as the ACA or "Obamacare," on December 24, 2009 by a vote of 60-39 (after invoking cloture by the same 60-39 margin). However, Obama's proposal to create a public health insurance option was removed from the health care legislation because it could not command 60-vote support.

House Democrats did not approve of all aspects of the Senate bill, but after 60-vote Senate control was permanently lost in February 2010 due to the election of Scott Brown to fill the seat of the late Ted Kennedy, House Democrats decided to pass the Senate bill intact and it became law. Several House-desired modifications to the Senate bill — those sufficient to pass scrutiny under the Byrd rule — were then made under reconciliation via the Health Care and Education Reconciliation Act of 2010, which was enacted days later following a 56-43 vote in the Senate.

The near-60-vote Senate majority that Democrats held throughout the 111th Congress was also critical to passage of other major Obama initiatives, including the American Reinvestment and Recovery Act of 2009 (passed 60-38, two Republicans voting yes) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (passed 60-39, three Republicans voting yes, one Democrat voting no). However, the House-passed American Clean Energy and Security Act, which would have created a cap-and-trade system and established a national renewable electricity standard to combat climate change, never received a Senate floor vote with Majority Leader Harry Reid saying "it's not easy to count to 60."[68]

In 2017, President Donald Trump and the 115th Congress pursued a strategy to use an FY17 reconciliation bill to repeal Obamacare, followed by an FY18 reconciliation bill to pass tax reform. A budget reconciliation strategy was pursued since nearly all Democrats were expected to oppose these policies, making a filibuster threat insurmountable due to the 60-vote requirement.

An FY17 budget resolution that included reconciliation instructions for health care reform was passed by the Senate by a 51-48 vote on January 12, 2017,[69] and by the House on a 227-198 vote the following day.[70] 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. In July, the Senate Parliamentarian ruled that certain provisions of the House bill must be stricken (as "extraneous" non-budgetary matter) under the Byrd rule before proceeding under reconciliation.[71] The Parliamentarian later ruled that an FY17 reconciliation bill must be adopted by end of FY17, establishing a September 30 deadline.[72] Senate Republicans were unable to obtain 51 votes for any health care reconciliation bill before the deadline, and the FY17 budget resolution expired.

An FY18 budget resolution that included reconciliation instructions for tax reform was passed by the Senate by a 51-49 vote on October 19, 2017,[73] and by the House on a 216-212 vote on October 26, 2017.[74] It permitted raising the deficit by $1.5 trillion over ten years and opening drilling in the Arctic National Wildlife Refuge, the latter to help secure the eventual vote of Alaska Sen. Lisa Murkowski who voted against FY17 health care reconciliation legislation. The Senate later passed the Tax Cuts and Jobs Act of 2017 (unofficial title) as the FY18 reconciliation bill by a 51-48 vote on December 20, 2017,[75] with final passage by the House on a 224-201 vote later that day.[76] Due to the budget resolution's cap of $1.5 trillion in additional deficits over 10 years, plus Byrd rule limits on adding deficits beyond 10 years, the corporate tax cut provisions were made permanent while many of the individual tax cuts expire after 2025.

Some reformers argue that the filibuster should be returned to its origins, in which senators were required to hold the floor and speak at length to delay a bill. Since obstruction would be more visible, the reform might benefit major bills that the minority bill "is willing to block covertly but not overtly."[77] For example, a 2012 proposal by Sen. Jeff Merkley would require that if between 51 and 59 senators support a cloture motion, debate would continue only until there is no opposing Senator speaking. At that point, another cloture vote would be triggered with only a simple majority to pass.[78]

In 2013, Sen. Tom Harkin advocated for steadily reducing the cloture threshold each time a cloture vote fails. The number of votes required would be reduced by three on each vote (e.g. from 60 to 57, 54, 51) until a simple majority was required. Harkin envisioned that this rule would still allow the minority to bring visibility to and slow down a bill, and since the whole process would take eight days the majority would have incentive to compromise with the minority. The Senate defeated the idea by voice vote in 2013.[79]

As an alternative to blocking the majority's agenda, some proposals have focused instead on granting the minority the right to have its own agenda considered on the floor. For example, in 2004 then-House Minority Leader Nancy Pelosi proposed a "minority bill of rights" for the House of Representatives that would have guaranteed the minority the right to offer its own alternatives to bills under consideration.[80] The House Republican majority did not endorse her proposal, and Pelosi in turn did not grant those rights when Democrats took control of the House in 2007.[81]

Despite the two-thirds requirement described above being written into the Senate rules, any Senator may attempt to nullify a Senate rule, starting by making a point of order that the rule is unconstitutional or just that the meaning of the rule should not be followed. The presiding officer is generally expected to rule in favor of the rules of the Senate, but under rule XX, "every appeal therefrom shall be decided at once, and without debate" and therefore by a simple majority as there is no need for a vote on cloture.

This happened in 2013, when Harry Reid of the Democratic Party raised a point of order that "the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote." The presiding officer overruled the point of order, and Reid appealed the ruling. Mitch McConnell of the Republican Party raised a parliamentary inquiry on how many votes were required to appeal the chair's ruling in that instance. The presiding officer replied, "A majority of those Senators voting, a quorum being present, is required." Reid's appeal was sustained by a 52–48 vote, and the presiding officer then ruled that the Senate had established a precedent that cloture on nominations other than those for the Supreme Court requires only a simple majority.[1][82] On April 6, 2017, that precedent was further changed by McConnell and the Republican majority, in a 52–48 vote, to include Supreme Court nominations.[83][84]