Filibuster and reconciliation in the United States Congress

Features of Congress

Background Federal Election Commission • Democratic Congressional Campaign Committee • National Republican Congressional Committee • Filing requirements for congressional candidates • Classes of United States Senators • Filling vacancies in Senate • Filling vacancies in House • President Pro Tempore of the Senate • United States Speaker of the House • Filibuster • Key votes • Vote-a-ramas • Parliamentarian • Christmas tree bill • Presidential addresses

Sessions 118th Congress 117th • 116th • 115th • 114th • 113th • 112th • 111th • 110th

Analysis Lifetime voting records • Net worth of United States Senators and Representatives • Staff salaries of United States Senators and Representatives • National Journal vote ratings

Filibuster is a term for any attempt to block or delay Senate action on a bill or other matter by speaking at length on a proposal, introducing multiple procedural motions, or engaging in other obstructive actions. In short, a filibuster occurs when debate is extended, allowing one or more senators to delay or entirely prevent a vote on a given proposal. A filibuster can be used as a technical tool to prevent an actual vote or action from proceeding.

Though the earliest use of filibusters required a senator to hold and keep the floor through an extended period of speaking, the aim of filibusters - extending debate indefinitely - could later be attained without the need to hold the floor. Under the Senate's two-track system, which was adopted in the 1970s, any one senator can filibuster one action while the Senate continues to proceed on other business. Sometimes referred to as a silent or stealth filibuster, this method was designed to keep Senate business moving, but it has also increased the number of filibusters used. Senators can simply threaten to use a filibuster and the effect is the same, but without any of the political costs in being seen as delaying action on Senate business by speaking for an extended period on the floor of the Senate.

Usage

The Senate operates on the principle of unlimited debate. Senate rules allow any member or group of senators to speak as long as they feel is necessary on an issue. This, in theory, would allow debate on an issue to continue indefinitely. To prevent this, Senate rules allow for the invocation of cloture. Cloture is a motion that closes debate on an issue and proceeds to a vote. It takes 60 votes in the Senate to invoke cloture, which ends a filibuster. Without the 60 votes needed for cloture, a filibuster can go on indefinitely, effectively blocking a vote on a proposal.

According to the Congressional Research Service, "[F]ilibustering does not depend on the use of any specific rules, whether a filibuster is present is always a matter of judgment. It is also a matter of degree; filibusters may be conducted with greater or lesser determination and persistence." Because of changes to the Congress in the 21st century, many filibusters never truly happen. It is not easy to label and identify filibusters in a strict manner, precisely because a filibuster need not be the standard depiction of a public official standing at a podium and talking endlessly. This makes comparing the number of filibusters to happen by decade somewhat of a complicated matter.

The U.S. House of Representatives does not use filibusters. In the lower chamber, a simple majority can end debate on a proposal.

Types of filibuster

The filibuster is a means by which to extend debate, and subsequently prevent a vote, on matters before a legislative body. In the U.S. Senate, the filibuster is used in one of three contexts. A legislative filibuster is used to prevent a vote on issues on the legislative calendar, such as proposed legislation, while an executive fiilbuster and a judicial filibuster are used to forestall a chamber vote on nominations to fill vacancies in those respective branches of government.

In a December 2016 interview with Politico, outgoing Democratic leader Harry Reid (D-Nev.) "predicted it’s just a matter of time before the filibuster is done away with altogether," however, when asked if he would modify Senate rules to allow senators to end debate on legislation by a simple majority, Senate Majority Leader Mitch McConnell (R-Ky.) said that he would not. In an April 4, 2017, press conference, McConnell said, "who would be the biggest beneficiary of that right now? It would be the majority, right? ... There’s not a single senator in the majority who thinks we ought to change the legislative filibuster. Not one." McConnell went on to promise that he would not modify the rules for the legislative filibuster during his tenure as majority leader.

In tweets dated May 2, 2017, however, President Donald Trump (R) stated that "we....either elect more Republican Senators in 2018 or change the rules now to 51%. Our country needs a good 'shutdown' in September to fix mess!" These comments were seen as Trump giving support to the idea of getting rid of the legislative filibuster. In response, Senator McConnell said "there is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar" and that such a move would "fundamentally change the way the Senate has worked for a very long time. We're not going to do that." Democratic leader Chuck Schumer (D-N.Y.) agreed with McConnell, saying "I think the idea of using the nuclear option for legislative stuff is pretty much dead."

Meaning

The term filibuster comes from a Dutch word vrijbuiter, according to the Senate Historical Office. This word was later adopted into French (flibustier), English (fleebooter), and Spanish (filibustero). The word translates as freebooter or, simply, pirate. The word was originally used to describe someone who stole booty, loot, or treasure. According to National Public Radio, the first instance of a legislator personally being called a filibuster as a means of accusing the legislator of being an obstructionist was in 1889; the first use of filibuster to describe a delay tactic on legislation was in 1890.

Background

Early history

Article I of the United States Constitution describes the powers of the legislative branch. Article I, Section 5 states that "each House may determine the rules of its proceedings." In April 1789, the House and the Senate adopted joint rules to guide both houses. The rules allowed for a simple majority to call for a vote without further debate on the previous question, but no rule prevented a member of either the House or Senate to speak without end. To do so, however, was considered unseemly. Thomas Jefferson, in his manual of parliamentary practice for the Senate, which he composed during his time as vice president, required under Section 17, Rule 9, that "[n]o one is to speak impertinently or beside the question, superfluously or tediously."

Though the original rules of the Senate allowed a simple majority of legislators to make a motion to end debate, in 1805, Vice President Aaron Burr urged the Senate to eliminate this rule. In 1806, the Senate amended its rules to allow for unlimited debate. According to Brookings Institution senior fellow Sarah A. Binder, "Deletion of the rule made possible the filibuster because the Senate no longer had a rule that could have empowered a simple majority to cut off debate. It took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837."

Matthew Yglesias of The Atlantic wrote about the early use of the filibuster, stating "no one actually attempted to use it until 1837, when a minority block of Whig senators prolonged debate to prevent Andrew Jackson’s allies from expunging a resolution of censure against him." The Senate formally adopted a rule of unlimited debate in 1856, but there was no mechanism to stop debate under the rules. Yglesias noted that "the unlimited-debate rule eventually became so cumbersome that senators made attempts at reform in ... 1873, 1883, and 1890, all unsuccessful." In 1892, the U.S. Supreme Court held in United States v. Ballin that, as a parliamentary body, the Senate was free to amend its procedural rules by simple majority; however, a rule change could be prevented by a filibuster in the Senate.

The adoption of cloture

According to Tonja Jacobi and Jeff VanDam, World War I provided the impetus needed to change the rules on unlimited debate. They note

“

At the outset of American involvement in World War I, Democrats had initiated an organized series of filibusters against a bill to arm American ships against German submarines at the end of the Senate session — more or less guaranteeing the bill would not pass. A furious President Woodrow Wilson referred publicly to these senators as a 'little group of willful men,' and a 'wave of indignation at their action ... stirred the country.' The public burned senators in effigy and sent them death threats. It was then that '[p]ublic pressure to change the rules of the Senate was probably greater than at any other time in Senate history.'

”

As a result of these actions, the Senate amended its rules to allow debate to be shut off by a two-thirds vote of those senators present to vote. This process is known as cloture. The two-thirds requirement was in effect from 1917 until 1949. The cloture rule provided little deterrent during this period. From the 65th to the 81st United States Congress, that is from 1917-1950, there were 21 motions to invoke cloture in the Senate; in only four instances was cloture invoked. Those motions that passed are listed below.

• November 13, 1919: Cloture was invoked to end debate over the Treaty of Versailles (S.139).
• January 22, 1926: Cloture was invoked to end debate of the World Court protocol (S.Res. 5).
• February 12, 1927: Cloture was invoked to end debate on the Branch Banking Act (H.R. 2).
• February 26, 1927: Cloture was invoked to end debate on the Prohibition Bureau (H.R. 10729).

In 1949, the Senate modified its rules to require a two-thirds vote of the entire chamber to invoke cloture. Ten years later, in 1959, the Senate returned to its previous rule of requiring a two-thirds vote of those present to vote.

The two-track system

In 1964, during debate over what became the Civil Rights Act, southern Democrats filibustered for over 75 hours in an attempt to prevent the bill's passage. In an effort to remedy the issue of future filibusters, Senate Majority Leader Mike Mansfield (D-Mont.) instituted two modifications. The first was to force cloture votes on filibuster threats; the second was to implement a two-track system. This system, instituted in 1972, provided senators the option to filibuster while the chamber considers other legislation. In 1975, the Senate again revised its rules to allow for cloture to be invoked by a vote of 60 senators, with the exception of Senate rules, which then required a two-thirds vote. Some argue that the two-track rule has lead to an increase in the use of silent filibusters. During a silent filibuster, a member does not need to speak on the floor to block a vote from happening and can even filibuster by email. A senator is not required to speak in public to prevent the passage of a bill. The senator simply needs to issue a warning that there are enough votes to support a filibuster.

Impact of the two-track system

According to Jacobi and VanDam, the impact of the two-track system has been profound. They write,

“

The adoption of two tracks 'changed the game profoundly.' It was followed fairly immediately by a period in which there are more filibusters than ever before. There have been nearly twice as many Senate actions to defeat filibusters ... in the last ten sessions of Congress than in the previous thirty-eight sessions combined. The number of motions to defeat filibusters from the 103rd Congress to through the 112th was 888; the number from the 65th through the 102nd was 483. That the number exploded after the two-track system was adopted is not coincidental. The system of stealth filibustering 'allows [senators] to obstruct Senate business but without paying much, if any, political cost for doing so.' It has led to a Senate where an invisible filibuster by default hangs over any controversial legislation ... a Senate, in other words, where minorities reign.

”

The nuclear option

The nuclear option, also known as the constitutional option, is a procedure that allows the majority party to change a Senate rule or precedent with a simple majority vote. Normally, the Senate needs a two-thirds vote to invoke cloture on a resolution to change its standing rules. In 1917, Senator Thomas J. Walsh (D-Mont.) proposed using the constitutional option for the first time. Changing Senate rules in this way was later nicknamed the nuclear option because senators have said that it should only be used as a final option. According to The Wall Street Journal, "Former Sen. Trent Lott (R., Miss.) was the first to use it in this context, and the name has stuck for several reasons. First, changing the Senate rules breaks longstanding precedent. Also, the Republicans — and the Democrats previously — know that when the majority party becomes the minority party, as inevitably happens, that party would be stripped of most of its leverage, thanks to its own rule change."

Members of the Senate have threatened to use the nuclear option on multiple occasions, but it was not used until November 2013 when Senate Majority Leader Harry Reid (D-Nev.) used it to allow judicial nominations to be approved with 51 votes instead of 60, with the exception of nominees to the U.S. Supreme Court.

Reid invoked nuclear option, 2013

On November 21, 2013, Senate Majority Leader Harry Reid (D-Nev.) invoked the nuclear option in the Senate. The option was used to change the vote requirement for executive nominee confirmations to be considered on the floor. Prior to the rule change, senators could filibuster until a cloture motion requiring 60 votes was passed in the chamber. The nuclear option changed the requirement to a simple majority. The threat of the nuclear option occurred in many previous sessions of Congress, but none had invoked the procedure.

The nuclear option was invoked in response to Senate Republicans blocking the nomination of three D.C. Circuit Court judges. The rule change passed by a vote of 52-48, with Carl Levin, Joe Manchin and Mark Pryor being the only Democrats to vote in opposition. According to the Congressional Research Service, of the 67 times between 1967 and 2012 that the filibuster was used on a judicial nominee, 31 were during the Obama administration. The change in rules did not apply to legislation or Supreme Court nominees.

McConnell invoked nuclear option, 2017

See also: Supreme Court vacancy, 2017: An overview

On April 3, 2017, Senate Democrats announced that they had a sufficient number of votes to sustain a filibuster against the nomination of Judge Neil Gorsuch to the U.S. Supreme Court. In anticipation of an expected filibuster, Senate majority leader Mitch McConnell (R-Ky.) indicated that he was prepared to restrict the use of filibusters on Supreme Court nominations. Essentially, McConnell said that Republicans would change the rules to allow a Supreme Court nominee to be confirmed with 51 votes instead of 60. On April 6, 2017, the Senate failed to invoke cloture on Gorsuch's nomination. McConnell then raised a point of order that the cloture vote should be upheld under the precedent established in 2013 and applied to all nominations. That precedent called for a simple majority vote to close debate on all nominations. That point of order was denied. McConnell appealed the ruling of the chair. The question was whether to retain the 60-vote threshold for ending debate on Supreme Court nominations. A 52-48 majority along party lines voted against retaining the 60-vote threshold to end debate on Supreme Court nominations, opting instead for a simple majority being required to end debate—the nuclear option. Under the new threshold, the Senate subsequently voted to end debate on Gorsuch's nomination. Gorsuch was confirmed to the U.S. Supreme Court the next day.

Senate limits post-cloture debate on presidential nominees, 2019

On April 3, 2019, the Senate voted to change the body's precedent and reduce post-cloture debate allowed on executive nominees below the Cabinet-level and federal district court nominees from 30 hours to 2 hours. Two separate votes on executive nominees and judicial nominees passed 51-48. All but two Senate Republicans—Susan Collins (R-Me.) and Mike Lee (R-Ut.)—voted for the changes, while all Senate Democrats who voted opposed the changes. To enact the changes, the Senate used the nuclear option rather than changing its standing rules.

Senate Majority Leader Mitch McConnell (R-Ky.) said his caucus pursued the change due to obstruction by Senate Democrats. He said, "The all-encompassing, systematic nature of this obstruction is not part of the Senate’s important tradition of minority rights. It is a new departure from that tradition. And this break with tradition is hurting the Senate, hamstringing our duly elected president, and denying citizens the government they elected." He also said that many Democrats privately supported the change and would certainly favor it if they controlled the White House.

Senate Minority Leader Chuck Schumer (D-N.Y.) criticized the change, particularly with regard to judicial nominees. He said, “Two hours for a lifetime appointment is unacceptable. Two hours for a lifetime appointment with huge influence on people’s lives is unacceptable. It’s ridiculous.”

Senate Democrats also said McConnell pursued similar tactics while in the minority. Sen. Michael Bennet (D-Colo.) said, “[McConnell] seems to have completely forgotten the Obama administration. He led the most famous blockade that’s ever happened in the Senate. And that was the blockade of Merrick Garland … it was shameful.”

McConnell responded by criticizing Senate Democrats for using the nuclear option to lower the cloture threshold from 60 votes to 51 votes in 2013. He said, “I said at the time I didn’t like the way it was done. And I thought maybe the other side would rue the day they did it. Amazingly enough, about a year and a half later I’m majority leader. Funny how these things change, isn’t it?”

Ballotpedia analysis

On April 5, 2019, Ballotpedia released an analysis of the changes in debate rules and the possible effects on federal judicial vacancies.

To see our full analysis, click here.

Cloture motions in history

Below are two data tables presented to show the frequency with which the Senate has taken action on cloture. The data are sorted into the number of motions filed for cloture, the number of votes on cloture held, and the number of times that cloture was invoked, meaning that 60 senators agreed to pass the cloture motion and end debate, effectively killing an ongoing filibuster.

The Senate adopted rules for cloture beginning in 1917. The data in this chart below show Senate actions on cloture from the first Congress in which the cloture rule was adopted (the 65th Congress) to the 117th Congress. All data are taken from the U.S. Senate website.

This line chart depicts the same data above. Consistent with the changes made by Senator Mansfield described above, Senate actions on cloture have increased significantly since the 1970s, indicating that the attendant use of the filibuster has increased during that time.

Filibusters and reconciliation

There are some who argue that, in an effort to circumvent the usage of the filibuster, an increasing preference is being given to the process of using budget reconciliation. According to the Center on Budget and Policy Priorities (CBPP), "reconciliation allows for expedited consideration of certain tax, spending, and debt limit legislation. In the Senate, reconciliation bills aren’t subject to filibuster and the scope of amendments is limited." Tonja Jacobi and Jeff VanDam argue that there is a strategic convergence in the use of reconciliation. They write, "in contrast to ordinary bills, which are subject to a filibuster that requires 60 votes to overcome through cloture, debate on reconciliation bills in the Senate is limited to twenty hours. ... such stringent restrictions on debate were only intended to apply to budgetary procedures, but the very fact of their stringency made them more broadly appealing to avoid the across-the-board de facto supermajority requirement that the institutionalization of the filibuster had created. We maintain that it is no coincidence that reconciliation emerged as a majoritarian alternative to the filibuster during the exact time period when the filibuster became most prevalent."

History and use of reconciliation

Budget reconciliation was created by the Congressional Budget Act of 1974. Under the act, reconciliation can be used on legislation that changes the federal debt limit, revenue, or spending. As it relates to spending, reconciliation can be used to consider changes in spending on entitlement programs with the exception of Social Security. Because appropriations under mandatory spending are typically codified, amendments to those laws are often required. Reconciliation has not been used to change 'discretionary' spending because the process to modify discretionary spending is typically addressed through the annual budgetary process.

Process

For reconciliation measures to be considered by the Congress, both chambers must agree on a budget resolution. This resolution must include resolution instructions. Resolution instructions contain four elements:

• 1. the relevant committee(s) to which the instruction is directed,
• 2. the deadline by which committee compliance must be achieved,
• 3. the specific change to either revenues, spending, or the debt (in dollars), and
• 4. the time period over which those budgetary changes must be achieved.

Once both chambers agree on a budget resolution, committees have until their specified deadlines in the resolution guidelines to produce reconciliation measures. Per the Congressional Research Service, committees are generally timely, but instances when committees have responded after their deadlines have occurred. Typically, there is no consequence in failing to meet deadlines. Once a committee develops reconciliation measures, the committee then votes on whether to report the resolution. Once a measure is reported to the chamber, and the measure passes, resolution of differences between the chambers is typically addressed in conference. The Senate, however, limits debate time on a conference budget resolution.

Congress is limited to using reconciliation for only one bill for each of the fiscal changes provided for in the reconciliation instructions, that is, changes to revenues, spending, and the debt limit. A single bill may make changes to all three, or two of three, but Congress cannot consider multiple bills satisfying the same instruction in a budget resolution. Thus, "Congress may not consider multiple tax bills under reconciliation procedures, or a bill that includes revenue and outlays and then another tax bill under the same budget resolution."

The Byrd Rule

In the Senate, reconciliation measures are subject to the Byrd Rule, named for the sponsor of the rule, Sen. Robert Byrd (D-W.Va.). The Byrd Rule permits senators to block provisions of reconciliation bills that are considered extraneous. According to the Congressional Research Service, "broadly speaking, the rule prohibits inclusion in reconciliation of matter unrelated to the deficit reduction goals of the reconciliation process. A provision is considered to be extraneous if it falls under one or more of the following six definitions:

• it does not produce a change in outlays or revenues or a change in the terms and conditions under which outlays are made or revenues are collected;
• it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
• it is outside of the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
• it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision;
• it would increase the deficit for a fiscal year beyond the 'budget window' covered by the reconciliation measure; and,
• it recommends changes in Social Security."

Senators may raise parliamentary objections against any provision they believe to be extraneous under the Byrd rule. If sustained, the extraneous material is deleted and consideration of the legislation continues without the extraneous material. In considering a conference agreement, a successful challenge under the Byrd rule obligates the Senate to send the legislation (minus the extraneous provisions) back to the House for further action. An objection by a senator is required, however, otherwise material that is extraneous may remain in reconciliation legislation if no senator makes an objection. The Congressional Budget Act permits the Senate to waive the Byrd rule if 60 senators agree to do so.

Advantages of reconciliation over filibusters

Though senators are limited at the number of bills that can be passed via budget reconciliation for any given Congress, scholars Tonja Jacobi and Jeff VanDam note a political advantage for a partisan majority in the Senate to using reconciliation. They write,

“

as we consider reconciliation today, the defining feature of a reconciliation bill is its self-imposed limitation on floor debate, the element that brings reconciliation bills into conflict with the filibuster. In most matters in the modern Senate, 60 votes are needed to invoke cloture, or the end of debate. Any one senator can force a bill’s proponents to find 60 votes for their proposal, as any senator can threaten to filibuster any matter. But that is not so with reconciliation. As adopted, the reconciliation law provides that '[d]ebate in the Senate on any reconciliation bill ... and all amendments thereto and debatable motions and appeals in connection therewith, shall be limited to not more than 20 hours.' Because debate by definition on a reconciliation bill is not unlimited, there can be no filibuster to hold it up. ... In the absence of strengthened party discipline, then, change to the filibuster will come not through reform, but through the continued ascension of reconciliation. What began as a ... budget balancing mechanism has become one of the primary means by which majorities pass important controversial legislation — both financial and substantive legislative policies.

”

Reconciliation usage

Reconciliation was created through the Congressional Budget Act of 1974. The data below indicate the total number of reconciled bills that were passed out of the Congress since budget reconciliation was adopted. In four instances, the reconciled bill was vetoed by the president. President Bill Clinton vetoed three of those bills and President Barack Obama vetoed the fourth. None of the vetoes were overridden by the Congress. All other reconciled bills were signed into law by the president.

Timeline

Below is an abbreviated timeline of events related to the filibuster, cloture, and reconciliation.

• 1806: Senate rules were modified to allow for unlimited debate.
• 1837: The first filibuster was used in the Senate.
• 1856: The Senate formally adopted its rule for unlimited debate.
• 1873: An attempt to reform the filibuster rule failed.
• 1883: An attempt to reform the filibuster rule failed.
• 1890: An attempt to reform the filibuster rule failed.
• 1917: The Senate adopted the cloture rule. The rule required a two-thirds vote of senators present to vote in order to invoke cloture.
• 1919: Cloture was invoked for the first time.
• 1949: The Senate modified its rules to require a two-thirds vote of the entire chamber in order to invoke cloture.
• 1957: U.S. Sen. Strom Thurmond (D-S.C.) staged the longest filibuster in U.S. history—24 hours and 18 minutes—to delay a vote on the Civil Rights Act of 1957.
• 1959: The Senate returned to its previous rule requiring two-thirds of senators present to vote in order to invoke cloture.
• 1972: The Senate adopted a two-track system for legislation, permitting the Senate to consider other legislation while a filibuster was ongoing.
• 1974: Congress passed the Congressional Budget Act, introducing provisions for budget reconciliation.
• 1975: The Senate modified its rules to reduce the number of senators present to vote needed to invoke cloture from two-thirds to 60.
• 1980: Congress used reconciliation for the first time to pass the Omnibus Reconciliation Act of 1980.
• 1985: Senator Robert Byrd (D-W.Va.) introduced a point of order to strike extraneous matter from reconciliation bills.
• 1990: The Senate permanently adopted the “Byrd rule” for reconciliation bills.
• 2005: Senate Majority Leader Bill Frist (R-Tenn.) threatened to remove the use of filibusters for federal judicial nominees except for nominees to the Supreme Court. A bipartisan group of senators called the Gang of 14 reached an agreement to move nominations forward without invoking this maneuver, which had been dubbed the nuclear option.
• 2013: Senate Majority Leader Harry Reid (D-Nev.) modified Senate rules to prohibit the use of filibusters on federal judicial nominees except for nominees to the U.S. Supreme Court.
• 2017: Senate Majority Leader Mitch McConnell (R-Ky.) modified Senate rules to prohibit the use of filibusters on any federal judicial nominees, including nominees to the Supreme Court.

See also

• United States Senate
• Supermajority
• United States Congress
• Cloture
• Nuclear option

External links

• U.S. Senate: Filibuster and Cloture
• U.S. Senate: Cloture Rule