How Filibusters Work

Don’t Fear the Nuclear Option

The word “filibuster” sounds silly, like the name of a pompous but ultimately well-meaning character in a Dickens novel. The phrase “nuclear option,” on the other hand, sounds terrifying.

So when we hear that the Republicans may use the nuclear option to kill the poor filibuster and confirm Judge Neil Gorsuch as a Supreme Court justice, we can lose perspective. In truth, eliminating the filibuster would be a minor change compared with the problem that such a move would solve: the recent rise of a system based on supermajority rule rather than majority rule.

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Filibusters at the Fore Once Again

Senators Richard J. Durbin of Illinois, left, and Sheldon Whitehouse of Rhode Island are among the Democrats planning to filibuster the nomination of Judge Neil M. Gorsuch.
Gabriella Demczuk for The New York Times

WASHINGTON — The Supreme Court nomination of Judge Neil M. Gorsuch is now going to the Senate floor. The Senate minority leader, Chuck Schumer of New York, has pledged to lead Democrats in a filibuster of the nomination. If he does, the majority leader, Mitch McConnell of Kentucky, has vowed to change Senate rules to clear the way for Judge Gorsuch. The potential showdown has raised interest in the peculiar Senate filibuster rule.

What is a filibuster?

A filibuster is an effort by a minority of lawmakers to delay or block the Senate from voting on a bill or a confirmation. By exploiting the chamber’s rules for full debate on an issue, the minority can indefinitely obstruct something that has majority support. According to the Senate Historical Office, the term traces back to a Dutch word meaning “pirate.”

How does it work?

The Senate generally operates by unanimous consent. If any senators refuse to consent to holding an up-or-down vote on Judge Gorsuch’s nomination, the Senate has to decide whether to overrule them. It would do so by holding a “cloture” vote on whether to end debate and proceed to a final vote. It takes 60 votes to invoke cloture, so 41 senators can indefinitely block a confirmation by refusing to vote for cloture.

What is the ‘nuclear option’?

This is what Mr. McConnell has threatened if Democrats muster enough votes to filibuster Judge Gorsuch. By a simple majority, Republicans would change the Senate’s rules to abolish the ability of a minority to filibuster Supreme Court confirmation votes. The term was apparently coined by Senate Republicans around 2003, when they threatened to use the tactic to defeat Democrats who were blocking votes on some of President George W. Bush’s appeals court nominees. It was meant to evoke horror, because the power play would undermine the Senate’s purported character as a collegial and debate-friendly body, making it more like the rough-and-tumble House of Representatives.

Would that be unprecedented?

No. It would be an expansion of a precedent set by Democrats in 2013, when they had a Senate majority and used the nuclear option to eliminate some other types of filibusters. Both parties have been engaged in a tit-for-tat escalation of partisan warfare over judgeships for a generation, from the Senate’s defeat of President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court in 1987 through its refusal to take up President Barack Obama’s nomination of Judge Merrick B. Garland last year.

As part of that story, back in 2013, Senate Republicans were obstructing Mr. Obama’s nominees to executive branch positions and lower-court judgeships. Under Harry Reid of Nevada, the majority leader, Democrats used a simple majority vote to change the rules, abolishing the need to muster 60 votes to proceed to an up-or-down vote on such nominations. But they left the filibuster rule intact for Supreme Court nominations and for legislation.

Notably, Senate Republicans are not threatening to eliminate the ability of 41 senators to block new laws, although adherents of Senate tradition fear that each erosion of the rule makes that prospect more likely.

Are filibusters part of the Constitution?

No, they are only an artifact of Senate rules. Originally, the chamber had a tradition that members could stay on the floor and talk as long as they wanted. But in 1917, amid acrimonious arguments over whether the United States should take part in World War I, it created the cloture rule to provide a mechanism for a supermajority of 67 senators to cut off debate and proceed to a final vote. In 1975, the Senate reduced the supermajority requirement to 60 votes.

Do senators have to keep talking in order to filibuster?

No. That’s called a talking filibuster, and it is the image created by the 1939 Frank Capra movie “Mr. Smith Goes to Washington,” in which an idealistic senator played by Jimmy Stewart holds the floor to prevent a corrupt bill until he collapses.

Filibusters took on less saintly overtones during the civil rights era, when Southern Democrats used them to block civil rights legislation, including an anti-lynching bill. The record for the longest such filibuster speech is held by Senator Strom Thurmond of South Carolina, who was then a Democrat but later became a Republican. He held the floor for 24 hours and 18 minutes to delay and protest the enactment of the Civil Rights Act of 1957, the first voting rights bill to become law since the post-Civil War Reconstruction era.

Talking filibusters have essentially been obsolete since the early 1970s, when the Senate changed its rules to permit more than one bill or matter to be pending on the floor simultaneously. That has permitted the Senate to move on to other business while theoretical “debate” on the blocked item continues indefinitely, although occasionally a senator holds a lengthy talking filibuster anyway to attract attention to an issue.

FILIBUSTER UPDATE MAY 2017

Trump Gets a Win He Wasn’t Counting On: He Saved the Filibuster

WASHINGTON — President Trump may have lost the spending fight, but he can celebrate at least one significant congressional accomplishment this week: He single-handedly saved the Senate filibuster.

By demanding in two Twitter posts on Tuesday morning that the Senate change one of its signature legislative rules, Mr. Trump created an uncharacteristic cause for bipartisan unity. Senators in both parties rushed on Tuesday to categorically embrace the filibuster and profess that it would remain untouched.

“There is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar,” Senator Mitch McConnell, Republican of Kentucky and the majority leader, declared, sounding like he meant it. “And that will not happen.”

Mr. McConnell and his colleagues say that eliminating the supermajority threshold on legislation would change the very nature of the chamber, diminish American democracy and make the dignified Senate too much like the unruly House.

All that might be true. But there are other, less obvious reasons for Republicans to want to hold fast to the filibuster given the current state of play in Washington. As the bipartisan budget agreement on Sunday showed, the filibuster also provides a check on Mr. Trump by giving Democrats a voice in legislation.

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