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How does the filibuster work?

The Democrats’ slim majority in the U.S. Senate, a 50-50 split, has reopened discussion about that most-hated, also-loved and often confusing instrument of American power: the filibuster.  

PBS NewsHour producer Kate Grumke noticed filibuster questions suddenly coming to her phone, from friends and family, including her mom, Theresa.  We decided we would ask who else had questions, turning to Twitter with an open invitation.

Within minutes, we had an avalanche.

As Congress kicks off the new session in earnest, we decided to take on the most-asked questions here, in a kind of filibuster primer, with some extra nerdy moments.  

 

It’s one of those situations where I want to be talked to like I’m 10 years old. Start from the beginning and talk slowly. From @ivonttobealone

Can you explain it like I would to my high school government students? From @SSSchnerer

Absolutely. I’ll aim for an audience somewhere between 10-year-olds and adults on Zoom. Let’s start with the basics. 

Filibuster. (fihl-ih-BUS’-ter). Noun.  

1. Broadly, any way a lawmaker slows down or blocks someone else’s bills or resolutions from getting a vote.
2. Specifically, a powerful and sometimes wacky practice in the U.S. Senate, where senators are allowed to talk as long as they want when recognized. Debate theoretically could go on forever, blocking a final vote on the issue.

But do they have to keep talking that whole time? No. Not anymore. We will explain that, and how to end a filibuster, below.

MORE: Senate reaches agreement on filibuster rule, but reform is still on the table

Why did it start in the first place?
From @peterspiers, with similar questions from Eleanor McClees, Andy Jensen, @captainjon29 and @Eileen Powers 

The filibuster goes back. Way back, to ancient Rome. In the United States, it has been a part of democracy since day one.

Senate historian Betty Koed has written and spoken about this. She pointed to a passage about the very first U.S. Senate session, in 1789, when “Pennsylvania senator William Maclay wrote in his diary, the ‘design of the Virginians … was to talk away the time, so that we could not get the bill passed.’” 

A Virginian myself, I will be more brief. At first, both the House and Senate had unlimited debate (the filibuster).  But the House ended it dramatically in 1811 after one member, NOT from Virginia, stretched everyone’s patience too thin.

The Senate went the other way, with the orators of the mid-1800s talking so much that the colorful term “filibuster” was born, from Dutch and Spanish words describing the troublesome actual pirates of the Caribbean. 

 

What happened to the talking requirement for the filibuster?
From Sean Kennedy with similar questions from @claryqueen, @Kbarthauer, @ginakenny13 and @GreenstoneScott among others.

How do the current rules differ from old times filibustering?
From Bob Mann with similar questions from @PitbullsforPete and @SeekOutWisdom.

Up until the 1970s, Senators had to speak on the chamber floor for a filibuster to happen. But in that decade, the Senate embraced the idea of multitasking.  

In order to allow other issues to keep moving forward while Senators waited for a filibuster to end, the chamber changed its rules. From that point on, senators could trigger a filibuster simply by announcing they wanted to block a bill..  

This was meant to help the Senate run more smoothly, but it resulted in making the filibuster, one of the greatest obstacles to legislation, incredibly easy to use. Thus began the rise of the modern filibuster.

 

I don’t understand the complexities of the filibuster, even when I Google. @3bros1sis 

Is the rule 60% or just the number 60? Nancy Moeller

“Complexities” is a good word.  But I think I can explain it somewhat simply.  *Rolls up sleeves*

Here is how the filibuster works now, in five steps.

  1. Any senator can launch a filibuster.  
  2. Senators need to give notice they intend to do this. Usually they first give their party leadership a heads up. Then the most frequent formal step is simple: The senator stands and says “I object” when other senators try to move forward on the legislation. 
  3. That senator can ask to speak, but does not have to speak, about their reasons for blocking.
  4. To end the filibuster, the full Senate must trigger a different super-weapon: “cloture.” Cloture closes debate, thus ending the filibuster. This is the 60-vote part. To get cloture, current Senate rules require a three-fifths vote of the Senate. (Which, with 100 senators currently, is 60, Nancy.)    
  5. If cloture passes, it dictates a maximum of 30 hours of debate and no more. Then there will be a vote on the actual measure the filibuster is seeking to block. If cloture does not pass, the bill remains in filibuster limbo as the Senate moves on to other business. 

Extra nerdy note: The filibuster and cloture can be used more than once on a single bill. Senators can first block something called the “motion to proceed,” which allows the Senate to bring up, or proceed to, a bill. After that lawmakers can then block any amendments to the bill. Finally, they can block the bill itself.

 

Exactly what legislation can pass with 51 [votes] and what must have 60? From Nancy Moeller. Related question from Bekah Curtis-Heald.

Another good question! 

Nearly all legislation in the Senate now faces the 60-vote hurdle. 

Some noncontroversial legislation can pass without it, by “unanimous consent.”  But that requires every senator to agree and is well above the 60-vote hurdle.

There is one way to pass major legislation with just a majority vote and it involves another arcane tool: budget reconciliation.  Here’s a more full explanation of this procedural monster. What’s important is that reconciliation can only be used for bills that impact the federal budget and it can only be used once a year. So it is limited.

 

Would throwing mashed potatoes at each other be more effective and cleaner than a filibuster? From Brian Rashap

Unlikely to be more effective. The Senate chamber is 9,040 square feet in area. It would take giant vats of mashed potatoes to impact that space. However, potatoes could be used strategically to unite or divide delegations from, say, Maine and Idaho.

It would certainly be messier. Needless to say, mashed potatoes are delicious and should not be wasted.

 

I’ll have a fill-a-buster with cheese and extra mayo to go! From @Teli_guy

I also am hungry now.  

 

What filibuster is being discussed–all kinds? From Parker Schnell

The discussion now is about reforming the “legislative filibuster,” meaning the use of it to block legislation. What else would it block? Nominations. See below.

 

Could you explain the nuclear option. Can the party in power extend it at will? From Al Anderson. @Shinesomelight2 and Meg Lamme had related questions.

We are now at the heart of the matter. The “nuclear option” is the term used for removing or significantly changing the filibuster.  

It is so named because the nuclear option blows up the filibuster rule and destroys some of the basic structure of the Senate. It is the ultimate procedural bomb.  

In 2013, Democrats deployed the nuclear option, after being frustrated by Republicans’ use of the filibuster against then-President Barack Obama’s administration and federal court nominees. They removed the 60-vote threshold and moved to majority votes for most nominees, except to the Supreme Court. Republicans followed suit in 2017, triggering the nuclear option for Supreme Court nominees as well.  

Can the party in charge use it at will? 

Technically, yes. But it is a precarious move, especially in years of closely divided Senates. While the party in power now may gain enormously from the nuclear option, they would lose their main tool in the Senate down the road if they find themselves  in the minority again.

In addition, it is seen as breaking faith with the members of the other party, something that has profoundly raised tension and led to further divisions in the chamber.  Proponents of the nuclear option have pointed out that it restores majority rule, which they feel was the idea envisioned in the Constitution. 

 

How certain is it that the two Democrat senators won’t vote to eliminate the filibuster? Any chance that two or more Republican senators might so vote? From @A36Roger. Related question from @1TonUpstate.

Now we come to where things stand.

Senators Joe Manchin, D-W.V., and Kyrsten Sinema, D-Ariz., have said unequivocally that they will not vote for “eliminating” or “doing away with” the filibuster.

There is no indication that any Republicans would vote the opposite way, which means Democrats don’t have the votes to go nuclear. 

BUT, note the wording here. Some would-be reformers argue that the filibuster need not be eliminated but could simply be lowered or changed. 

Perhaps 55 votes instead of 60? After all, the threshold was two-thirds, or 67 votes, until 1975. The move to 60 votes was a compromise between 67 votes and 50. Another option: return to the requirement that senators must speak for an entire filibuster a la “Mr. Smith Goes to Washington.”  

Here is the rule to remember. The party in power always has the ability to change the filibuster but is unlikely to do so until it finds itself with a critical bill or issue that its members all agree on, but which cannot muster 60 votes. That will be the moment when the next, real conversation about the filibuster happens. 

 

What is the history with regards to racism and Jim Crow politics? Did southern senators guide the use and goals? From @CarmenSilva_SF and @copeaceticinva.

Yes.

According to information from the Senate Historical Office, for the first half of the 20th century the filibuster was used most prominently by Southern Democrats to oppose civil rights and voting protections for people of color. By the 1960s, it was well-known as a tool of segregationists aiming to preserve racist power structures.

 

What are the most notable examples of the filibuster? From Derek Aupperlee

The record for the longest individual filibuster in U.S. history remains with Sen. Strom Thurmond, R-S.C., who spoke for more than 24 hours starting on Aug. 28, 1957. As above, it is an example of a segregationist opposing civil rights legislation. It was one of many filibusters by white Southern Democrats, including one by Sen. Robert Byrd, D-W.V., which he later said publicly he regretted.

In 1992, New York Sen. Al D’Amato staged a 15-hour filibuster over a tax issue that included reading from the phone book and singing. It ended the next morning when he learned that the House of Representatives had adjourned for the year.

The colorful Sen. Huey Long of Louisiana spoke for 15 hours in 1935, aiming to protect the Senate’s power, and his own, over some government jobs. He read from the Bible and provided recipes, including one for fried oysters. 

In more recent years, Sen. Rand Paul, R-Ky., spoke for 13 hours in 2013 in opposition to an Obama nominee for director of the CIA.  

And while it is often cited, Sen. Ted Cruz, R-Texas, was actually NOT filibustering in 2013 when he spoke for 21 hours against the Affordable Care Act. The remarks were prearranged and did not delay any legislation. But it was an impressively long speech that included a reading of Dr. Seuss’ “Green Eggs and Ham.” OK, now my editor and I are both really hungry.

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