A Lesson in Politics: The Filibuster
It’s our first filibuster, and I’m not a rules expert, but the rules of a filibuster are simple enough –you keep the floor as long as you hold the floor. What does that mean? It means you can’t stop talking, ever. You can’t eat, and you can’t drink, because you can’t leave the chamber to use the bathroom, either. But all that’s nothing compared to this: you’re not allowed to sit down — you’re not allowed to lean on anything or, for that matter, anyone. — Claudia Jean Cregg, “The Stackhouse Filibuster,” The West Wing
On Thursday, the Senate passed a budget resolution that ultimately protects a $1.5 trillion tax cut from the filibuster. How does it do this? It was passed via budget reconciliation, which I’ve written about in the past, which is a special process that allows the Senate to fast track legislation related to revenue, spending, and the federal debt limit. One element of the fast tracking is decreasing the number of votes needed to pass the legislation from 60 to 51 — and prohibiting the filibuster.
But what is the filibuster?
How It Works
The design of the procedure is simple — as long as you kept talking and held the floor, a piece of legislation could not move forward.
Put simply, it is a legislative procedure used to “delay or block legislative action.” It is an effort by the minority party or faction to delay or block legislation with which they disagree. The word “filibuster” comes from a Dutch word that translates to “pirate” or “buccaneer” — someone who was disrupting a process. In the case of the filibuster, a senator is stealing the floor from the vote, holding up the process and drawing attention to their cause.
The Senate typically operates under the parliamentary procedure “unanimous consent,” or a request for objections from the Senators present. If no one objects to the motion, the Senate moves forward. If someone objects to the motion, the Senate is required to hold a vote and obtain cloture, or the number of necessary votes to move forward. Cloture is currently three-fifths of the Senate, or sixty votes.
If the necessary sixty votes are not obtained, the legislation does not move forward — but before those votes are even cast, a senator can begin to filibuster and try to hold the floor for as long as possible to keep the vote from happening. All they have to do is stand up, start talking, and refuse to yield the floor.
However, under today’s Senate rules, you can filibuster without standing up to talk if the Senate can gather enough votes to move on to a different business item — you’d still be stalling the legislation you are filibustering, but also discussing other senate business.
Per Senate Rule 19, there are a variety of things that you are not allowed to do during a filibuster. While conducting a “talking filibuster,” the senator cannot stand or lean against anything.They aren’t allowed to leave the chamber to use the restroom (there is a procedural trick to allow a bathroom break, but many senators try to stick it out — and the Senate Parliamentarian’s office advises to not use the trick). Per Riddick’s Rules of Procedure, a parliamentarian’s guide to the Senate rules, Senators can only drink water or “sip milk” while filibustering. They technically aren’t supposed to eat anything, but the candy desk in the Senate is the worst, best kept secret. Technically, you can yield for questions whenever you want and another Senator can sermonize, so long as their speech ends with a question. Each person can speak two separate times on any one issue before they have to yield to a question or make a motion.
You just have to keep talking, but you can talk about anything. Senators have resorted to reading the phonebook, reading Dr. Seuss’s Green Eggs and Ham, and musical numbers. Senator Huey Long even recited Shakespeare and read shrimp and oyster recipes during his filibuster.
Crazy things have been done during filibusters. In 1917, one senator had to be physically restrained from throwing a brass spittoon at another senator. Senator Thurmond, who holds the record for longest filibuster, had his staff keep a bucket in the cloakroom in case he had to urinate. They kept the bucket in the cloakroom and he would maintain one foot on the Senate floor. Another senator had a case of accidental food poisoning after the Congressional kitchen sent up a drink with bad milk in it. The drink was later tested and was so toxic that drinking the entire thing would have killed him.
Can you imagine that? Death by an accidentally poisoned drink during a Senate filibuster. What a way to go.
History of the Filibuster
The original purpose of the filibuster was to ensure that minority opinions were heard before the Senate voted on a piece of legislation. When the filibuster was started in the mid-1800s, both the House and the Senate could filibuster in the beginning, but once the House began to grow in size, the House rules were revised to limit debate. The rules remained unchanged in the Senate, allowing the filibuster to live on.
Initially, when the filibuster ended was up to the senator who was filibustering. They could talk until they felt like their opinion was heard, until they felt like they gave their allies time to come up with an alternative, or simply decided they were done.
In 1841, Senator Henry Clay brought forth a bill with which the Democratic minority disagreed. Clay threatened to change the rules, allowing for a majority vote to close the debate and received backlash for his threats. Seventy six years later, the Senate would institute a rule, at the urging of President Woodrow Wilson, to allow the Senate to reach cloture — or to close a debate with a two-thirds majority vote. Today, this is known as Senate Rule 22. Despite the existence of Rule 22, the filibuster proved an excellent means to stonewall or significantly delay legislation, as a two-thirds majority was difficult to obtain in a divided chamber.
Throughout the twentieth century, the Senate called on the filibuster to delay the vote on the Treaty of Versailles (cloture was reached and the treaty did not pass). Southern Democrats liked to use the filibuster to block civil rights legislation — and successfully carried out a 60 day filibuster against the Civil Rights Act of 1964 before the Senate was able to reach cloture. Eventually, the Senate reduced the number of votes needed to reach cloture from 66 to 60, which is where it remains today. They also allowed for other business to be conducted during a filibuster, meaning that senators don’t have to necessarily hold the floor for a prolonged period of time like they used to. They are still “delaying the vote,” but not holding the floor continuously because the Senate has shifted to other business. When they come back to what is being filibustered, they will either have the votes to achieve cloture or they won’t. While a talking filibuster is not required anymore, many still do because the optics draw attention to the issue.
Since the Senate reduced the cloture threshold, there have been other attempts at limiting the filibuster or changing the rules all together. In 2005, a group of Republican senators argued that using the filibuster against judicial nominees was unconstitutional. Vice President Dick Cheney supported the argument. (The Vice President is constitutionally the president of the Senate and therefore the ultimate presiding officer.) The idea that a presiding officer calling into constitutional question a Senate rule or precedent, and therefore removing the filibuster as an option in a particular instance, is often referred to as the “nuclear option.”
While the concept of a “nuclear option” has been around since the early twentieth century, it has only been used twice — once in 2013 and again in 2017. In 2013, the nuclear option was used to eliminate the filibuster for executive branch nominees and judicial nominees (with some exceptions). In 2017, the Republicans used the nuclear option to prohibit the filibuster on Supreme Court nominees — basically, they instituted it to push Donald Trump’s Supreme Court nominee, Neil Gorsuch, through the Senate confirmation process.
In 2013, two amendment packages passed through the Senate, again altering how the filibuster could be used. In this instance, Senate Resolution 15 prohibited a filibuster on the motion to proceed, a procedural function that allows the Senate to consider a piece of legislation. Senate Resolution 16 changed the permanent rules of the Senate, providing for an expedited way to end debate on a piece of legislation with bipartisan cooperation. This means the Senate can move forward with cloture if both party leaders and at least seven senators from each party agree — it speeds up the waiting period by one day, allowing the Senate to consider the legislation faster.
Is it part of the Constitution?
No, the filibuster is not part of the Constitution. It is a relic of the Senate rules… but it’s not even specifically mentioned in the Senate rules. Its evolution and continued existence were an accident.
In an attempt at making the Senate more efficient, they voted to remove the “previous question motion” — which was used to limit debate on legislation — and did not realize the Pandora’s Box they were opening. Removing this little-used parliamentary procedure opened the Senate up to endless debate, but the filibuster was often considered an abuse of the Senate rules and was rarely used until the twentieth century. After its use in 1917 to prevent a debate on legislation that would arm U.S. merchant ships, Woodrow Wilson urged the Senate to institute the cloture rule.
…but none of this was codified anywhere. It was an accident of parliamentary procedure that stuck.
How long do filibusters last?
Filibusters last as long as a senator can hold the floor or until cloture is reached. The longest filibuster in history was conducted by Senator Strom Thurmond of South Carolina. He filibustered the Civil Rights Act of 1957 for twenty four hours and eighteen minutes! Alfonse D’Amato of New York has the second longest filibuster, clocking in at twenty three hours and thirty minutes. D’Amato is known for breaking out into song and reading the phonebook during his filibuster attempts.
Recent filibusters have gone on as long as twenty one hours. Senator Ted Cruz of Texas holds the record for longest filibuster in the twenty-first century, lasting twenty one hours and eighteen minutes. He is followed by Senator Jeff Merkley of Oregon, who filibustered Neil Gorsuch’s confirmation for fifteen hours and twenty eight minutes, and Senator Chris Murphy of Connecticut, who filibustered in support of gun control measures.
Why is this important now?
The budget reconciliation process is an exception to the filibuster. When spending and/or revenue legislation is passed through the Senate using reconciliation, only 51 votes are needed to proceed. Cloture is lower, and therefore much easier to attain. Senate Republicans want to cut taxes for the wealthy and are preventing Democrats from speaking out against it on the Senate floor. They are limiting debate and limiting the minority party’s ability to express their opinion.
In general, the filibuster is a useful tool for senators to have their voices heard. While it is not widely used, a number of senators have used it recently — and its use has continued to grow, despite the Senate limiting its functionality. It’s a nifty parliamentary tactic, but is is also an ingenuitive way to draw attention to issues the Senate is addressing. All nighters on the Senate floor gain media attention, showing the world that there are people fighting for their beliefs.
Regardless of whether or not you agree with the reason for the filibuster, it is a sight to behold — and it is democracy at work.*
*There are debates on whether or not the filibuster is democratic or even constitutional. I am on the side of it being a valuable aspect of the Senate procedure. Each party hates it when they’re in power and loves it when they’re not. Personally, I’m team exercise your free speech rights on behalf of the people, Senators. Godspeed.
