Understand the big picture
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| Published: | 2013-Jan-19 |
| Last Updated: | 2021-May-24 |
| Principal Writer: | Rob Dennis |
 | Understanding The Issue |
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(Filibuster reform)
2013 (SR-4)
(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. Discussions to reform the practice have been getting louder and louder over the years - by whichever party is in power.
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).
When Democrats controlled Congress from 2007 - 2015, the filibuster was used by the Republican minority to stall or block bills addressing health care, cybersecurity, the federal minimum wage, job security for veterans, domestic terrorism, campaign financing, and elder abuse.
Many of these bills already had been overwhelmingly approved by the Republican-controlled House of Representatives.
Democrats have used the filibuster as well. While in the minority from 2003 - 2007, they filibustered several 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.
Let's not, but say we did
In the popular imagination, the filibuster has taken on a romantic hue thanks largely to its portrayal in the 1939 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.
In real life, Sen. Strom Thurmond filibustered for more than 24 hours in 1957 in an (unsuccessful) attempt to stop the Civil Rights Act from being passed.
The modern reality, though, is different. 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 political consequences. Any senator can place a "hold" on a bill to prevent it from proceeding - a so-called silent filibuster. And he or she can do so anonymously.
Because of this, it effectively has taken a 60-vote "supermajority" (three-fifths of the 100 senators) to pass most legislation or confirm presidential appointments.
Bills defeated
The 2009 - 2011 Congress was an example of the Senate minority party using the filibuster to obstruct virtually all meaningful legislation rather than merely to block some particularly controversial bill.
The Republican minority used it to block 17 major bills that likely would have otherwise become law.
They included...
o The DISCLOSE Act, which 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.
o The DREAM Act, which would have provided protections for undocumented immigrants who were brought to the U.S. when they were children.
o The Paycheck Fairness Act, which would have made it more difficult for companies to pay women less than men for the same job.
o The American Jobs Act, which would have cut payroll taxes in half for workers and small businesses. It also would have provided money for public education.
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. Others passed with strong bipartisan support. 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.
In 2021, a Republican minority blocked the formation of an independent commission to investigate the Jan. 6 attack on the U.S. Capitol. The commission had received bipartisan support in the House and was supported by a majority of senators.
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. Until recently, nominees also faced extensive vetting, and the prospect of anonymous holds or filibusters to block their confirmation. As a result, nominees waited longer and longer to be confirmed.
In 2009, the Republican minority in the Senate filibustered more of President Obama's nominations than those of all previous presidents combined.
Many other nominees for courts or agencies faced "holds" by individual Republican senators, resulting in an average time of more than 100 days for Obama appointments to be approved. This weakened agencies, which cannot act decisively without a head.
From the late 1970s to the Obama administration, the confirmation rate of circuit court appointments declined from more than 90 percent to less than 50 percent.
In 2013 the Democratic majority changed the rules so that Cabinet appointments and judicial nominations (other than for Supreme Court justices) could be approved by a simple majority.
The filibuster gives special interest groups great influence
The silent filibuster offers an easy avenue for large special interest groups to influence nominations.
For example, the Bureau of Alcohol, Tobacco and Firearms did not have a permanent director from 2006 (when the Senate began requiring confirmation 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, Obama 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
In order to avoid minority filibustering, both parties over the years have used the Senate budget 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 tax cuts, welfare reform, the Patient Protection and Affordable Health Care Act, the 2021 COVID-19 Relief Bill, 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).
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