By: Dr. Anne Cizmar, associate professor, EKU Department of Government & Economics
What is the filibuster?
The filibuster is the right of extended debate in the Senate. Essentially, it is the ability to talk a bill to death. In the U.S. Senate, a senator (or group of senators) can take the floor and continue speaking on a bill under consideration to block the measure from being voted on. A senator can talk and talk so that the Senate cannot vote on the bill, and nothing else can happen on the floor of the Senate. Filibusters can go on for hours. Senators can talk about virtually anything during this time. They can tell stories, read the Constitution, read a bedtime story to their kids…the commentary isn’t limited to germane statements related to the topic of the bill.
Is there any way to stop the filibuster?
A filibuster can be stopped, and a senator can be made to yield the floor, by invoking cloture. Cloture requires that 60 of 100 senators agree that a filibuster should stop. After that time, the senator who is filibustering is given a limited amount of time to finish up his/her speech and the filibuster ends. The Senate can then go forward with a vote and other activities.
Is the filibuster in the U.S. Constitution?
The filibuster isn’t specified in the U.S. Constitution. It exists based on Senate rules and procedures. It is a political maneuver to block legislation that a senator strongly disagrees with.
The ability to filibuster can be eliminated at any time by a rules change in the Senate. In fact, recent rule changes have eliminated the filibuster for judicial appointments. As per the Constitution, the president makes appointments to the federal judiciary, including justices for the U.S. Supreme Court, with the advice and consent of the Senate. Until recent years, the Senate rules permitted the filibuster to block judicial nominees. In November 2013, Senate Democrats eliminated the right to filibuster for federal judges except the Supreme Court. Senate Republicans, once taking back majority control of the chamber, then eliminated the filibuster for Supreme Court justices as well in 2019. Now, nominees to the federal judiciary cannot be blocked by a filibuster. This is called the “nuclear option.”
Why do people support/oppose the filibuster?
The filibuster is usually championed by the minority party (the one with the second most seats in the Senate) because it allows the party to stop appointees or legislation that they strongly oppose. It is a way for the minority party to still exercise some control over the legislative process. The majority party (the one with the most seats in the Senate) is usually frustrated by the filibuster because it stops them from getting nominees and legislation that they want, and could otherwise have the votes to obtain with a simple majority vote. The power of government goes back and forth between the parties, and eventually the majority party will be in the minority again. Each party has recognized when it’s in the minority, it likes knowing that it could block legislation it finds particularly unpleasant. This explains why the filibuster, which requires a super majority 60 votes to overcome, but could easily be eliminated as a rule change with a 50 vote simple majority, has persisted.
Why “go nuclear” now?
It’s worth noting that the filibuster, or at least the threat of a filibuster, has become more prevalent in recent years. Although senators don’t always come to the floor of the Senate and talk for hours, the number of cloture votes (to stop a potential filibuster) have greatly increased in the past few decades. This may explain why the Senate has invoked the “nuclear option” recently, because otherwise the work of government may grind to a halt.
What will happen to the filibuster?
It’s hard to say conclusively whether the filibuster will remain in the Senate. The name “the nuclear option” demonstrates that senators consider eliminating the filibuster entirely to be a pretty serious change to the Senate rules, and not something that would be undertaken lightly. However, with increasing partisan polarization in the Senate, and with the elimination of the filibuster to block judicial nominees, it’s possible that the filibuster may be eliminated.