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ISSUE
Understanding Senate Filibusters

Published:2013-Jan-19
Last Updated:2013-Jan-19
Principal Writer:Rob Dennis

Issue Sections

Understanding The Issue
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Reported News

Gov: Senate Filibuster

Related Bills

(Filibuster reform)

2013 (SR-4)

Related Court Cases

(2014) NLRB v. Noel Canning

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The Filibuster

In recent years, senators have used the filibuster at unprecedented levels to block legislation which otherwise would have passed easily. But negotiations now are under way to reform the process.

The filibuster is a stalling tactic in which a senator (or group of senators) talks at length to delay or prevent a vote. Senate rules permit senators to speak for as long as they want on any topic unless three-fifths of them vote to bring debate to a close (known as invoking cloture).

For the past two Congresses, the filibuster has been used by the Republican minority to stall or block a slew of legislation, including a health care reform bill containing a "public option," a cybersecurity bill, a bill to increase the federal minimum wage, a bill providing job security for veterans, a bill to help prevent terrorist bombings in the United States and a bill tackling the negative effects of elder abuse.

Many of these bills already had been overwhelmingly approved by the Republican-controlled House of Representatives. In some cases, Senate Republicans actually filibustered their own legislation.

When the Democrats occupied the minority in the 108th Congress, they filibustered 10 of President George W. Bush's nominees to the court of appeals, as well as major legislation.

Proponents say the filibuster protects the rights of the minority, distinguishing the Senate from the House, which operates by majority rule.

In reality, only a threat is needed

In the popular imagination, the filibuster has taken on a romantic hue thanks largely to its portrayal in the 1939 Frank Capra film Mr. Smith Goes to Washington, in which Jimmy Stewart's character, Sen. Jefferson Smith, is falsely accused of corruption and filibusters an appropriations bill for more than 23 hours to prove his innocence.

More recently, in a 2001 episode of The West Wing, an elderly senator with an autistic grandson filibusters a family wellness bill after his request for $47 million to combat autism is refused - stalling proceedings by reading Dickens and the rules of cards on the Senate floor.

The modern reality, though, is very different from the Hollywood version. Generally, the minority merely threatens filibusters to stop bills even coming to the floor for debate.

The foundations of this modern filibuster were laid in the early 1970s, when the Senate introduced a system allowing filibustered bills to be placed on a separate "track" for later consideration. This allowed the Senate to move on with other business when a filibuster was threatened, but it also allowed obstructionism without public consequences. Any senator can place a "hold" on a bill to prevent it from proceeding by unanimous consent - a so-called "silent filibuster." And he or she can do so anonymously.

Because of this, it effectively takes a 60-vote "supermajority" (three-fifths of the 100 senators) to pass legislation or confirm presidential appointments.

Bills defeated

The Patient Protection and Affordable Care Act (commonly referred to as Obamacare) included a "public option" - a health insurance plan that people could choose to purchase from the government instead of from a private insurance company. (You can read more about the act and Lobby99's position on the issue here)

The DISCLOSE Act, introduced in response to the Supreme Court's Citizens United ruling, would have required corporations to disclose their political expenditures. It also would have banned such spending by government contractors, foreign firms and recipients of Troubled Asset Relief Program (TARP) funds - part of the 2008 bailout of financial institutions.

These are just two of the 17 bills from the 111th Congress that likely would have become law if it weren't for the filibuster. Read about all of them in this Washington Post summary.

House members of both parties have repeatedly expressed frustration with the number of their bills that are dying in the Senate.

In 2010, approximately 400 bills had passed the House but had not been considered by the Senate. Almost a third of those (121), passed with at least 90 percent in favor. Most of the others passed with strong bipartisan support, according to OpenCongress.org.

The bills included the Elder Abuse Victims Act, the Wounded Veteran Job Security Act, the Vision Care for Kids Act, the Student Internet Safety Act, the Improved Financial and Commodity Markets Oversight and Accountability Act, and the Stop Child Abuse in Residential Programs for Teens Act.

They had been been stalled in the Senate an average of 10 months.

Appointments blocked

The U.S. Constitution states in Article 2, Section 2...

(The president) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

There has been debate throughout the country's history on exactly which officials this requirement applies to. All judicial nominations require Senate confirmation.

For the first 130 years, confirmation hearings were rare. Now they are held even for the lowest-ranking nominees to all agencies. Nominees also face extensive (and often redundant) vetting, and the prospect of anonymous holds or filibusters to block their confirmation. As a result, nominees must wait longer and longer to be confirmed, if they are confirmed at all.

Although obstructionist tactics have been used by both houses of Congress since the country's early days, the Republican minority in the Senate has filibustered more of President Obama's nominations than those of all other presidents combined.



Many other nominees for courts or agencies have faced "holds" by individual Republican senators, resulting in an average time of more than 100 days for Obama appointments to be approved. This has weakened agencies, which cannot act decisively without a head.

Two measures approved during the last Congress eliminated or expedited Senate confirmation requirements for 435 positions. As of Nov 2013, however, the backlog of executive positions that still require Senate confirmation exceeds 900.

In the late 1970s, the confirmation rate of circuit court appointments was more than 90 percent. In recent years, that rate has plummeted to less than 50 percent, according to Thomas Mann of the Brookings Institution.

From George H.W. Bush to Barack Obama, the percentage of presidential nominations confirmed in the first year of each president's administration declined from 80 percent to 65 percent, according to Mann.

G. Calvin MacKensie, professor of governance at Colby College, who has studied the presidential appointments process for 40 years, said the filibuster now "undermines the very purposes it was designed to serve."

"It does not welcome talented people to public service; it repels them," he told Congress. "It does not smooth the transition from the private to the public sector; it turns it into a torture chamber. It does not speed the startup of new administrations elected by the American people; it slows that process to a standstill."

The filibuster gives special interest groups great influence

The silent filibuster offers an easy avenue for large special interest groups to influence nominations.

In one particularly egregious example, the Bureau of Alcohol, Tobacco and Firearms did not have a permanent director from 2006 (when the Senate began requiring conformation for the position) through 2013. Three senators placed a hold on Pres. George W. Bush's nominee, U.S. Attorney Michael Sullivan, who was criticized by pro-gun groups. Pres. Obama nominated Andrew Traver to the position in November 2010, but the Senate never scheduled confirmation hearings.

In Jan 2013, the president nominated B. Todd Jones, who had been serving as acting director since 2011. He was confirmed as permanent director in July 2013.

Reconciliation - Sidestepping the filibuster

Frustrated by minority filibustering, leaders from both parties over the years have used the Senate reconciliation process to push through some legislation.

Budget reconciliation was created in 1974. At the time, Congress passed a budget at the beginning of the year and an updated version at the end, and the idea was to reconcile the two more quickly.

Reconciliation limits debate to 20 hours, so such bills cannot be filibustered and thus can be approved with a simple majority vote.

Although it was narrowly designed, reconciliation has expanded well beyond its intended purpose over the years. It has been used to pass the three Bush-era tax cuts, welfare reform, the Patient Protection and Affordable Health Care Act, and many other policies.

Reconciliation's usefulness is limited, however. Elements not directly related to the federal budget can be removed on points of order, and such bills expire after 10 years at most (future Congresses can renew them).

Reforms proposed

Sens. Jeff Merkley, D-Ore., and Tom Udall, D-N.M., pushed for reform in 2011, but Majority Leader Harry Reid, D-NV and Minority Leader Mitch McConnell, R-KY cut a handshake deal to make the Senate more workable. Reid later said the deal was ineffetive, and vowed to change the rules in 2013.

On the first day of the new Congress, Merkley, Udall and Sen. Tom Harkin, D-Iowa, introduced Senate Resolution 4, which would re-establish old-school filibusters, forcing senators who want to use the tactic actually to speak on the floor. It also would limit debate on motions to proceed, which determine whether a bill can be brought to the Senate floor for debate and a vote.

Reid said he will allow the Senate to approve the new rules by a majority (51 votes) rather than the two thirds approval (67 votes) the Senate typically requires. Although the Constitution allows for such a change, the majority party typically has resisted it out of fear that it would be used against them should they return to being the minority party.

Meanwhile, a bipartisan group of eight senators led by Sens. Carl Levin, D-Mich., and John McCain, R-Ariz., have proposed a compromise. The two-year agreement would block filibusters on proceeding to legislation and guarantee the minority party at least two amendments on the floor (some Republicans say their increased use of the filibuster is a response to Reid?s efforts to prevent the minority from offering amendments). It also would make it easier for a bill to go to conference with the House and to confirm certain presidential nominations.

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