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The Filibuster- Obstruction of the Senate


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With Democrats being the majority in the Senate along with Vice President Kamala Harris, many are calling for abolishing the filibuster, so the Democrats can pass laws without obstruction from Republicans. Is this possible? What even is the filibuster?


What is the Filibuster?


The filibuster is another name for the Senate cloture rule. The cloture rule is included in the 22nd rule of the Senate and states that at least three-fifths of the senators present must vote to end the debate session of a bill to actually be able to vote on it. This means that senators must have at least 60 other senators who agree that a bill should go to a vote. The cloture rule effectively sets the number of votes needed to pass a bill into law at 60 instead of a simple majority because a simple majority is not enough to pass the cloture vote. The filibuster allows for the Senate minority to delay, often permanently, the votes on many bills. Since 1990, the filibuster has been used over 887 times to stop a vote. While this procedure is intended to give power to the minority, it often results in delaying any efficiency in the Senate.


Where Did It Originate?


The filibuster was not always a part of Senate procedure. It first became possible in 1806 when, with the advice of Vice President Aaron Burr, the Senate removed the motion formerly known as the “previous question." This motion allowed a simple majority to force a vote on a bill, so when it was abolished, it opened up the opportunity for a minority of senators to withhold a vote from the majority. At first, the filibuster was utilized by individual senators through the unlimited amount of time that senators are granted for talking. Senators would spend hours speaking on the Senate floor to prevent a vote because a vote could not commence while one or more senators talk. This method of filibustering was used in 1837. Filibusters became common before and after the time of the Civil War. The House of Representatives also had filibusters, but its large number of members led to the adoption of specific amounts of time for speaking based on a majority vote. Thus, the House no longer has filibusters.


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Changes to the Filibuster


Filibustering first became regulated in 1917 when the Senate passed a rule for cloture. This first version of cloture stated that at least two-thirds of the senators present must vote to end debate and vote on “any pending measure”. Then, in 1975, the cloture rule was changed to three-fifths of Senators voting to end the debate rather than two-thirds. This is the current amount needed to end the debate. Filibusters became particularly popular after 1970 when the Senate implemented the “two-track system” which allowed for the Senate to continue working on aspects of a measure or bill that faced a filibuster. Before this rule, filibustering would halt any progress made on the measure at all. These changes of convenience to the filibuster led to it being a frequent practice of the current Senate.


Ways Around the Filibuster


While filibusters are extremely effective at preventing a bill from moving forward, there are a few options to bypass the cloture procedure:

  1. Unanimous Consent- When senators wish to vote on a measure or bill, the majority or minority leader will often seek “unanimous consent” to end debate and vote on the bill. This motion to vote on the bill will be granted unanimous consent if none of the 100 senators present objects to voting. However, the measure will not go to a vote if even a single object is heard. If that happens, then the leader or another senator must file a cloture motion that requires 60 or three-fifths votes to pass. If this cloture motion does not pass, then the measure’s vote has been filibustered.

  2. Limited Debate Time- Certain types of legislation written by Congress are impervious to filibusters. This special legislation has debate procedures written into it. This type of legislation often happens to be budget bills, so these rules are often called special budget rules. Because the government budget needs to be approved by Congress every year, the Senate MUST vote on it. To avoid filibustering the budget, Congress writes in rules of debate for this specific kind of bill. When the Senate goes to approve this bill for the next fiscal year, the written-in rules of debate limit the amount of time for debate on the bill. This gets rid of the possibility of a filibuster because after the allotted time expires, the bill must be voted on. This way around the filibuster is used infrequently because the original bill with the written-in debate procedures must pass a cloture procedure to become law. Once it is officially law, it will then ensure that no filibusters occur on that bill next year.

  3. The Nuclear Option- This option around the filibuster only applies to the confirmation of federal judges and justices. This option, called the “Nuclear Option”, allows a bypass of the cloture procedure and allows a simple majority of Senators to bring a measure to a vote. It was established by parliamentary precedent rather than officially changing the Senate rules. The precedent that established this option occurred in 2013 and 2017. In 2013, the Democratic majority in the Senate were frustrated by the Republican filibuster on confirming federal judges, so they invoked the nuclear option. This option was used again in 2017 by the Senate Republicans to confirm Justice Gorsuch.

The Nuclear Option involves a Senator bringing up a point of order (which does not need to be voted on to be brought up) that establishes the cloture vote as simple majority rather than three-fifths for this specific occurrence. The presiding officer can rule against this, but their ruling can be overturned by a simple majority. This option bypasses the 60 cloture vote by establishing a point of order to change the number of votes needed for cloture and changing the cloture rule in the middle of a session required only a simple majority. Although, because the Nuclear Option has only been used for judicial confirmations, precedence has only been established for this matter, so the nuclear option can not be used for any measures other than judicial confirmations.


Options for Changing the Filibuster


There are also 3 options possible for changing or eliminating the filibuster:

  1. Changing Senate Rule 22- The most direct way of eliminating the filibuster would be to formally remove it from Senate Rule 22. This option is becoming more of a reality as the Democrats have taken a majority of the 117th Senate (with VP Kamala Harris) though it is still unlikely because a vote to change this rule must pass a cloture procedure, and the Republican Minority which holds 50 seats is strongly opposed to removing it. There are also several Democrats opposed to removing the filibuster such as Senator Kyrsten Sinema and Senator Joe Manchin.

  2. Expanding the Nuclear Option- This would work the same as the Nuclear Option, bypassing the 60 cloture vote by bringing up a point of order or question. However, this option would establish precedent outside of judicial confirmations. Once this option is used on a measure that is not a confirmation, it will set the precedent that the Nuclear Option can be used in general. If the Nuclear Option can be used for any measure, then the filibuster would practically be eliminated. There has always been hesitation towards either party to use the Nuclear Option regularly for fear of the other party abusing it.

  3. The Byrd Rule- The Byrd Rule restricts what can be included in reconciliation legislation in the Senate. Reconciliation legislation has specifically written-in rules about limited debate time. This is what eliminated filibusters in the House. The rule restricts what can be included in reconciliation legislation to phrases and clauses necessary to a budget/bill. It is applied by the Parliamentarian, a non-voting, non-member advisor in the Senate who assists the Presiding Officer in Senate procedures. To utilize this method, Democrats could appoint a Parliamentarian that is lax in applying the Byrd Rule and more often allows phrases about limiting the time of future debate inside of bills. This method is not the most effective as it tends to only be applied to budget bills. The Presiding Officer can always dismiss the Parliamentarian's advice and disregard any application or non-application of the Byrd Rule.


Consequences of Changing the Filibuster


If the Democratic majority is successful in removing the filibuster, the Senate will undergo many more votes on a vast amount of measures. The most foreseeable consequence would be the Democratic majority passing bills on many divisive topics like health care, civil rights, minimum wage, environmental concerns, or taxing the rich. Passing bills would become more streamlined, and any party in control of the Senate, House, and White House (like Democrats currently) would be able to create any laws at its own discretion.


How You Can Help


The best way to help ameliorate the filibuster fiasco is to call or write to your Senators. Expressing your concerns about the filibuster and its fate to your Senator is important because they are serving you, and their vote could be the deciding vote on the issue. If you live in Arizona, write to Senator Kyrsten Sinema who is still unsure on the filibuster, or if you live in Texas, write to Senator Ted Cruz who is strongly opposed to removing the Filibuster. Whatever you believe is best for the filibuster, expressing the political concerns of the youth is crucial for a politically active and healthy society.


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