Over the objections of the chamber’s Republicans, Senate Democrats voted in November 2013 to alter its rules to let a simple majority advance nominees for appointment to courts and federal agencies. It ended a practice that effectively required a supermajority of 60 votes to cut off debate and approve presidential picks. For the time being, Republicans who took control of the chamber in January are keeping this rules change. The Senate takes history seriously and tends to change its rules by consensus. That’s why senators dubbed the 2013 filibuster vote “the nuclear option.” Senate Majority Leader Harry Reid, a Nevada Democrat, had warned for months that the increasing use of the tactic was harming the government’s ability to function. Supreme Court nominees can still be filibustered, as can legislation: Last spring, Republicans blocked Democratic bills to change how the military investigates sexual assaults and to raise the minimum wage. Some cloture votes, like those two, are designed to score political points. Many more bills simply never make it to the floor if leaders don’t see 60 votes in favor.
A visit to the Senate public gallery can dispel a few popular notions about how Washington operates. Most senators don’t even show up to hear their colleagues debate a bill. Another myth is that vote-blocking requires senators to talk to the point of exhaustion, as Jimmy Stewart did in the film “Mr. Smith Comes to Washington.” Though Hollywood portrayed the filibuster as democracy in action, it has often been deployed to frustrate majority rule, or simply to rally supporters, as when Senator Strom Thurmond of South Carolina stood on the floor for 24 hours and 18 minutes in 1957 in an unsuccessful bid to stop a civil rights bill. He has been followed more recently by Kentucky Senator Rand Paul, who held the floor for 12 hours and 52 minutes in 2013 to slow the vote appointing John Brennan as director of the Central Intelligence Agency to protest the use of drones. (Texas Republican Ted Cruz’s 21-hour-and-19-minute philippic against Obamacare in 2013 wasn’t technically a filibuster because it didn’t block Senate business.) Since the 1970s, the mere threat to filibuster has been enough to bring things to a halt. The notion of requiring a supermajority of senators to proceed to a vote, the so-called cloture rule, dates to President Woodrow Wilson in 1917. Since then there have been more than 1,600 filibusters, half of them taking place since 2000. Before the change in rules, Reid said that half of the 168 nominees delayed in the Senate since the nation’s founding were chosen by President Barack Obama.
Obama applauded Reid’s move to change the voting rules, repeating the Senator’s charge by saying that Republicans had engaged in an “unprecedented pattern of obstruction” in the upper chamber. The blocking mechanism isn’t part of the Constitution’s provision requiring the Senate’s “advice and consent” on nominations, as it says in Article II. Republicans said that Reid’s 2013 action set a dangerous precedent, allowing the majority party to run roughshod over the minority. Tennessee Senator Lamar Alexander, who is among the less partisan Republicans, called the curbing of the filibuster the biggest change in Senate rules since Thomas Jefferson wrote them more than two centuries ago. In 2015, with the Senate back in Republican control, the filibuster no longer seemed so sacrosanct to some Republican senators, who urged Senate Majority Leader Mitch McConnell to use the same voting rules change to stop Democratic filibusters.
The Reference Shelf
- A report from the Congressional Research Service on filibusters and cloture.
- The Senate’s page on the history of the filibuster.
- A report from the Brennan Center for Justice examines what it calls “Filibuster Abuse.”
- Sara Binder of the Brookings Institution looks at the history of filibuster fights.
- Video of a Heritage Foundation talk with the co-authors of “Defending the Filibuster.”
- A 2005 Harvard law journal article gives a detailed account of the filibuster’s evolution as well as methods of reining it in.
- A New York Times article from 1891 compared cloture rules in the U.S. Senate and the British Parliament.