Backgrounder: The Filibuster

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What it is: Filibuster is the term used to refer to Senators holding the floor in an extended debate, but it also includes a variety of other tactics to stop a measure by preventing it from coming to a vote.

The Senate has no specific rules for filibustering and filibusters exist because Senate rules purposefully lack provisions that would place limits on a Senator's rights to control the floor during the legislative process. Current rules establish no generally accepted limits on the length of debate and also provide no way for the majority to vote to bring a current debate to an end.

Bills are potentially subject to two filibusters before the Senate votes on its passage:

  • a filibuster on the motion to proceed to its consideration by the Senate; and
  • once the Senate agrees to the motion to proceed, there can be a filibuster on the bill itself.

Purpose: Filibusters can serve a variety of purposes, including:

  • blocking a bill's passage;
  • getting the majority leader to delay or avoid calling a bill to the floor; and
  • providing leverage to make proponents change or amend the bill to avoid an actual filibuster.

Current practices: The Senate has long moved away from the process of bringing cots into its anterooms for Senators to use during around-the-clock sessions caused by filibusters, such as those in the 1950s. Today, the Senate rarely stays in session late into the night, which would require those filibustering to continue to speak. Previously, bill opponents only needed a Senator to occupy the floor while the proponents needed to keep a majority on hand to respond to quorum calls and roll call votes.

Holds: The threat of a filibuster can also be found in holds placed on legislation by members of the Senate--again an area where there are no standing rules to address the practice but it has been honored by recent majority leaders, says (.pdf) the Congressional Research Service--which allows the effect of a filibuster without a Senator needing to be on the floor actively speaking.

When a Senator places a hold on a measure, they do so in advance by making a request to the majority leader that they not bring up the measure for consideration without giving the Senator advance notice. It is understood that the Senator placing the hold objects to a measure being called up by unanimous consent and will likely filibuster a motion to proceed.

Here, it is only the threat of a filibuster that prevents a measure from coming to the floor.

Current ways to stop a filibuster: Cloture, provided under Senate Rule XXII, allows Senators to end a filibuster on any debatable matter the Senate is considering, but not immediately. Cloture is started when 16 Senators present a motion to end a debate, and then the Senate votes on cloture on the second day of its session after the motion is made. Cloture typically requires a three-fifths majority, but when amending the Senate's standing rules, this rises to a two-thirds majority of the Senators present and voting.

Cloture caps consideration at a maximum of 30 additional hours. This timeframe covers all activity, including debate, quorum calls and roll call votes. Senators are limited to one-hour time slots for speaking, though they may have additional time yielded to them.

Since filibusters have become more common, the majority leader often goes through a filibuster-cloture dance. He can move to proceed to consider a measure; immediately submit a motion for cloture on the motion to proceed; and then immediately withdraw the motion to proceed. "This permits the Senate to consider other business while the petition ripens, rather than having to extend debate on the motion to proceed," says the CRS.

Potential reform: Senate Majority Leader Harry Reid (D-Nev.) has proposed eliminating the filibuster vote needed to formally begin debate on legislation and make filibustering senators actually talk on the floor, and will likely use the "constitutional option" (.pdf), that would only require a 51 vote majority at the beginning of the next congress.

Senate Minority Leader Mitch McConnell (R-Ky.) accused Reid of  "breaking the rules to change the rules," reports the Washington Post. However, the Post notes that McConnell tried the same process in 2005 and was opposed by Reid who made the same rule-breaking claim at the time.

President Obama has come out in support of the filibuster change by Reid, says White House Communications Director Dan Pfeiffer said in a statement to the Huffington Post.

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