The Filibuster

Ins and Outs of Supermajority Rule

By | Updated Jan 10, 2017 4:07 PM UTC

The filibuster has its origins in the formative years of a nation fearful of majority tyranny. It allowed any U.S. senator to speak for as long as he chose, effectively letting individuals postpone legislative votes. By some accounts the practice grew out of a conviction that minority opinions should be guaranteed a hearing in a quintessentially deliberative body. By others, it was a rule-making mistake with consequences the founders never imagined. By the 21st century the filibuster had turned Senate democracy on its head, upending the principle that most disagreements should be settled by majority vote.

The Situation

Senate Minority Leader Chuck Schumer says he now regrets his party’s decision to alter Senate rules in 2013 to let a simple majority advance nominees 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. Republicans were outraged by the rules change, made when Democrats were the majority in the Senate and a Democratic president, Barack Obama, was in the White House. Now Republicans control the Senate and expect easy confirmations of Republican President-elect Donald Trump’s cabinet nominees. 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.” Supreme Court nominees can still be filibustered, as can legislation. In 2014, Republicans blocked Democratic bills to change how the military investigates sexual assaults and to raise the minimum wage. And in 2015, Democrats stopped a Republican-backed resolution to disapprove the Iran nuclear deal.

The Background

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. Since the 1970s, the mere threat to filibuster has been enough to bring things to a halt. Many bills simply never make it to the floor if leaders don’t see 60 votes in favor. 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 2013 rule change, then Senate Majority Leader Harry Reid, a Nevada Democrat, had warned for months that Republicans’ increasing use of the blocking tactic was harming the government’s ability to function. Reid said that half of the 168 nominees delayed in the Senate since the nation’s founding were chosen by President Obama. 

The Argument

The supermajority of 60 votes 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. Once the Senate came back into Republican control, the filibuster no longer seemed so sacrosanct to some Republican senators. In fact, they’ve hinted that they might end the filibuster for Supreme Court nominees if Democrats use the gambit against Trump picks.

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.

Jim Snyder contributed to the original version of this article.

First published Nov. 21, 2013

To contact the writer of this QuickTake:
Laura Litvan in Washington at llitvan@bloomberg.net

To contact the editor responsible for this QuickTake:
Anne Cronin at acronin14@bloomberg.net