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A filibuster in the United States Senate usually refers to any dilatory or obstructive tactics used to prevent a measure from being brought to a vote. The most common form of filibuster occurs when a senator attempts to delay or entirely prevent a vote on a bill by extending the debate on the measure, but other dilatory tactics exist. The rules permit a senator, or a series of senators, to speak for as long as they wish and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" (usually 60 out of 100 senators) brings debate to a close by invoking cloture under Senate Rule XXII.
According to the Supreme Court ruling in United States v. Ballin (1892), changes to Senate rules could be achieved by a simple majority. Nevertheless, under current Senate rules, a rule change itself could be filibustered, with two-thirds of those senators present and voting (as opposed to the normal three-fifths of those sworn) needing to vote to end debate. Despite this written requirement, the possibility exists that the Senate's presiding officer could on motion declare a Senate rule unconstitutional, which decision can be upheld by a simple majority vote of the Senate.
In 1789, the first U.S. Senate adopted rules allowing the Senate "to move the previous question", ending debate and proceeding to a vote. Aaron Burr argued that the motion regarding the previous question was redundant, had only been exercised once in the preceding four years, and should be eliminated. In 1806, the Senate agreed, recodifying its rules, and thus the potential for a filibuster sprang into being. Because the Senate created no alternative mechanism for terminating debate, the filibuster became an option for delay and blocking of floor votes.
The filibuster remained a solely theoretical option until the late 1830s. The first Senate filibuster occurred in 1837. In 1841, a defining moment came during debate on a bill to charter the Second Bank of the United States. Senator Henry Clay tried to end debate via majority vote. Senator William R. King threatened a filibuster, saying that Clay "may make his arrangements at his boarding house for the winter". Other senators sided with King, and Clay backed down.
Modern scholars point out that in practice, narrow Senate majorities would be able to enact legislation, by changing the rules, but only on the 1st day of the session in January or March. This could be done if the minority used it to prevent, instead of merely to delay, votes on measures supported by a bare majority.
In 1917, a rule allowing for the cloture of debate (ending a filibuster) was adopted by the Democratic Senate at the urging of President Woodrow Wilson after a group of 12 anti-war senators managed to kill a bill that would have allowed Wilson to arm merchant vessels in the face of unrestricted German submarine warfare. From 1917 to 1949, the requirement for cloture was two-thirds of those voting. Despite the formal requirement, however, political scientist David Mayhew has argued that in actual practice, it was unclear whether a filibuster could be sustained against majority opposition.
During the 1930s, Senator Huey Long used the filibuster to promote his liberal policies. The Louisiana senator recited Shakespeare and read out recipes for "pot-likkers" during his filibusters, one of which occupied 15 hours of "debate".
In 1946, Southern senators blocked a vote on a bill proposed by Democrat Dennis Chavez of New Mexico (S. 101) that would have created a permanent Fair Employment Practices Committee (FEPC) to prevent discrimination in the work place. The filibuster lasted weeks, and Senator Chavez was forced to remove the bill from consideration after a failed cloture vote even though he had enough votes to pass the bill. As civil rights legislation continued to loom, the Senate revised the cloture rule in 1949 to permit the Senate to invoke cloture on any measure or motion only if two-thirds of the entire Senate membership voted in favor of a cloture motion.
In 1953, Senator Wayne Morse set a record by filibustering for 22 hours and 26 minutes while protesting the Tidelands Oil legislation. Senator Strom Thurmond broke this record in 1957 by filibustering the Civil Rights Act of 1957 for 24 hours and 18 minutes, although the bill ultimately passed. In 1959, the Senate restored the cloture threshold to two-thirds of those voting.
One of the most notable filibusters of the 1960s occurred when southern Democratic senators attempted, unsuccessfully, to block the passage of the Civil Rights Act of 1964 by making a filibuster that lasted for 75 hours, which included a 14 hour and 13 minute address by Democrat Senator Robert Byrd. The filibuster ended when the Senate invoked cloture for only the second time since 1927.
After a series of filibusters in the 1960s over civil rights legislation, the Senate put a "two-track system" into place in the early 1970s under the leadership of Senate Majority Leader Mike Mansfield and Byrd, who was at that time serving as Senate Majority Whip. Before the introduction of tracking, a filibuster would stop the Senate from moving on to any other legislative activity. Tracking allows the majority leader – with unanimous consent or the agreement by the minority leader – to have more than one bill pending on the floor as unfinished business. Under the "two-track system", the Senate can have two or more pieces of legislation pending on the floor simultaneously by designating specific periods during the day when each matter or measure will be considered.
In 1975 the Democratic-controlled Senate revised its cloture rule so that three-fifths of the senators sworn (usually 60 senators) could limit debate, except on votes to change Senate rules, which require two-thirds to invoke cloture. The Senate experimented with a rule to remove the need to speak on the floor to filibuster ("talking filibuster"), thus allowing for "virtual filibusters". Another type of filibuster used in the Senate, the post-cloture filibuster (using points of order to consume time, since they are not counted as part of the limited time provided for debate), was eliminated as an effective delay technique by a rule change in 1979.
The filibuster or the threat of a filibuster remains an important tactic that allows a minority to affect legislation. The perceived threat of a filibuster has tremendously increased since the 1960s, as suggested by the increase in cloture motions filed. A motion for cloture is filed not only to overcome filibusters in progress, but also to preempt ones that are only anticipated. In the 1960s, no Senate term had more than seven votes on cloture. By the first decade of the 21st century, the number of votes on cloture per Senate term had risen to no fewer than forty-nine. The 110th Congress broke the record for cloture votes, reaching 112 at the end of 2008.
Budget bills are governed under special rules called "reconciliation" which do not allow filibusters. Reconciliation once only applied to bills that would reduce the budget deficit, but since 1996 it has been used for all matters related to budget issues.
A filibuster can be defeated by the majority party if they leave the debated issue on the agenda indefinitely, without adding anything else. Indeed, Thurmond's attempt to filibuster the Civil Rights Act of 1957 was defeated when Senate Majority Leader Lyndon B. Johnson refused to refer any further business to the Senate, which required the filibuster to be kept up indefinitely. Instead, the opponents were all given a chance to speak, and the matter eventually was forced to a vote. Thurmond's aforementioned stall holds the record for the longest filibuster in U.S. Senate history at 24 hours, 18 minutes.
Even if a filibuster attempt is unsuccessful, the process takes floor time. In recent years the majority has preferred to avoid filibusters by moving to other business when a filibuster is threatened and attempts to achieve cloture have failed.
In 2005, a group of Republican senators led by Senate Majority Leader Bill Frist, responding to the Democrats' threat to filibuster some judicial nominees of President George W. Bush to prevent a vote on the nominations, floated the idea of having Vice President Dick Cheney, as President of the Senate, rule from the chair that a filibuster on judicial nominees was inconsistent with the constitutional grant of power to the president to name judges with the advice and consent of the Senate (interpreting "consent of the Senate" to mean "consent of a simple majority of Senators," not "consent under the Senate rules"). Senator Trent Lott, the junior Republican senator from Mississippi, had named the plan the "nuclear option." Republican leaders preferred to use the term "constitutional option," although opponents and some supporters of the plan continued to use "nuclear option."
On May 23, 2005, a group of fourteen senators was dubbed the Gang of 14, consisting of seven Democrats and seven Republicans. The seven Democrats promised not to filibuster Bush's nominees except under "extraordinary circumstances," while the seven Republicans promised to oppose the nuclear option unless they thought a nominee was being filibustered that was not under "extraordinary circumstances." Specifically, the Democrats promised to stop the filibuster on Priscilla Owen, Janice Rogers Brown, and William H. Pryor, Jr., who had all been filibustered in the Senate before. In return, the Republicans would stop the effort to ban the filibuster for judicial nominees. "Extraordinary circumstances" was not defined in advance. The term was open for interpretation by each senator, but the Republicans and Democrats would have had to agree on what it meant if any nominee were to be blocked.
On January 3, 2007, at the end of the second session of the 109th United States Congress, this agreement expired.
In the 2007–08 session of Congress, there were 112 cloture votes and some have used this number to argue an increase in the number of filibusters occurring in recent times. However, the Senate leadership has increasingly utilized cloture as a routine tool to manage the flow of business, even in the absence of any apparent filibuster. For these reasons, the presence or absence of cloture attempts cannot be taken as a reliable guide to the presence or absence of a filibuster. Inasmuch as filibustering does not depend on the use of any specific rules, whether a filibuster is present is always a matter of judgment.
On July 17, 2007, Senate Democratic leadership allowed a filibuster, on debate about a variety of amendments to the 2008 defense authorization bill, specifically the Levin-Reed amendment. The filibuster had been threatened by Republican leadership to prompt a cloture vote.
Usually proposals for constitutional amendments are not filibustered. This is because a two-thirds majority is needed to pass such a proposal, which is more than the three-fifths majority needed to invoke cloture. So usually a filibuster cannot change the outcome, because if a filibuster succeeds, the amendment proposal would not have passed anyway. However, in some cases, such as for the Federal Marriage Amendment in 2006, the Senate did vote on cloture for the proposal; when the vote on cloture failed, the proposal was dropped.
In December 2009, Senator Sheldon Whitehouse claimed there were over 100 filibusters and acts of obstruction during the 111th Congress. In March 2010, freshman senator Al Franken attacked the majority of the filibusters—some on matters which later passed with little controversy—as a "perversion of the filibuster".
From April to June 2010, the Senate Committee on Rules and Administration held a series of monthly public hearings entitled "Examining the Filibuster" to examine the history and use of the filibuster in the Senate. The Committee held the first such hearing, entitled "History of the Filibuster 1789–2008" on April 22. It held the second hearing, entitled "The Filibuster Today and Its Consequences", on May 19. On June 23, the Committee held the third hearing, entitled "Silent Filibusters, Holds and the Senate Confirmation Process".
On December 10, 2010, self-described "democratic-socialist" Senator Bernard Sanders, I-VT, began a "Tax Cut Filibuster" at 10:25 am and finished at 6:59 pm later that day on the floor of the Senate. Sanders' office said the intention was to "speak as long as possible against a tax deal between the White House and congressional Republicans."
In response to the use of the filibuster in the 111th Congress, all Democratic senators returning to the 112th Congress, signed a petition to Senate Majority Leader Harry Reid, requesting that the filibuster be reformed, including abolishing secret holds and reducing the amount of time given to post-cloture debate.
On December 6, 2012, another milestone in filibuster history was erected when Senator Mitch McConnell (R-KY), Senate Minority Leader, became the first senator to filibuster his own proposal. He did not give a lengthy speech, instead he merely invoked the rules of filibuster on his bill to raise the passage threshold to 60 votes. McConnell had attempted to force the opposition Democrats, who had a majority in the Senate, to refuse to pass what would have been a politically costly measure, but one that would nonetheless solve the current ongoing debt ceiling deadlock. When Senate Majority Leader Harry Reid (D-NV) chose to call a vote on the proposal regardless, McConnell immediately invoked the rules of filibusters on his own proposal, effectively doing the first self-filibuster in Senate history. 
||This paragraph may be confusing or unclear to readers. (January 2013)|
On March 6th, 2013, Senator Rand Paul launched a talking filibuster to stall John Brennan's nomination confirmation vote for the position of Director of the CIA, demanding an answer from the Obama Administration to the question: "Should a President be allowed to target, and kill an American by drone attack, on American soil, without due process?" John Brennan was considered to be the main architect of the drone program. After 12 hours and 52 minutes of talking, it became the 9th longest filibuster in U.S. history.
Negotiations between the two parties resulted in two packages of amendments to the rules on filibusters being approved by the Senate on January 25, 2013. Changes to the standing orders affecting just the 2013-14 Congress were passed by a vote of 78 to 16, allowing the Senate majority leader to prohibit a filibuster on a motion to begin consideration of a bill. Changes to the permanent Senate rules were passed by a vote of 86 to 9. The changes occurred through Senate Resolution 15 and Senate Resolution 16; Senate Resolution 15 applies only to the 113th session, while Senate Resolution 16 changed two standing rules of the Senate.
The series of changes to the filibuster rules announced represented a compromise between the major reforms put forward by some Democratic senators and the changes preferred by Republican senators. Those seeking reform, including Democrats and liberal interest groups, had originally proposed a variety of strong reforms including: ending the filibuster completely; banning the use of filibusters on the motion to proceed; re-introducing the "talking filibuster" where the minority would have to remain on the Senate floor and speak in order to impede passage of a vote; banning the use of filibusters on House-Senate conferences; and forcing the minority to produce 41 votes in order to block cloture. These more extensive reforms of the filibuster could only have been implemented by a decision from the Senate's presiding officer declaring it unconstitutional.
The new rules remove the requirement of 60 votes in order to begin debate on legislation and allow the minority two amendments to measures that reach the Senate floor, a change implemented as a standing order that expires at the end of the current term. In the new rules, the amount of time to debate following a motion to proceed has been reduced from 30 hours to four. Additionally, a filibuster on the motion to proceed will be blocked if a petition is signed by eight members of the minority, including the minority leader. For district court nominations, the new rules reduce the required time before the nominee is confirmed after cloture from 30 hours to two hours. Under the new rules, if senators wish to block a bill or nominee after the motion to proceed, they will need to be present in the Senate and debate. Following the changes, 60 votes are still required to overcome a filibuster to pass legislation and confirm nominees and the "silent filibuster"—where senators can filibuster even if they leave the floor—remained in place.
Following the announcement of the new rules, Senator Dick Durbin, who was involved in the negotiations, stated that the deal reached was true agreement between the majority and minority leaders, and was overwhelmingly supported by Senate Democrats. However, the agreement was negatively received by liberal interest groups including CREDO, Fix the Senate Now, a coalition of approximately 50 progressive and labor organizations, and the Progressive Change Campaign Committee, both of whom had advocated for eliminating the "silent filibuster" on the grounds that it allows Republicans to filibuster progressive bills. Liberal independent Senator Bernie Sanders argued that the requirement for 60 votes to pass legislation makes it "impossible" to deal with the crises faced by the United States. Conservatives also criticized the reforms, arguing that the changes negatively impacted the minority party. In particular, Heritage Action for America argued that reducing the length of time for debate allows senior lawmakers to "avoid accountability". Additionally, Senator Rand Paul criticized the rules change for limiting the "ability of Senators to offer amendments".
While talking out a measure is the most common form of filibuster in the Senate, other means of delaying and killing legislation are available. Because the Senate routinely conducts business by unanimous consent, one member can create at least some delay by objecting to the request. In some cases, such as considering a bill or resolution on the day it is introduced or brought from the House, the delay could be as long as a day. However, because the delay is a legislative day, not a calendar day, the majority can mitigate it by briefly adjourning.
In many cases, the result of an objection to a unanimous request will be the necessity of a vote. Forcing votes may not seem an effective delaying tool, but the cumulative effect of several votes, which are at least 15 minutes, can be substantial. In addition to objecting to routine requests, votes can be forced through dilatory motions to adjourn and through quorum calls. The intended purpose of a quorum call is to establish the presence of a constitutional quorum, but senators routinely use them to waste time while waiting for the next speaker to come to the floor or for leaders to negotiate off the floor. In those cases, a senator asks unanimous consent to dispense with the quorum call. If a member objects, the clerk must continue to call the roll of senators just as is done with a vote. When a call shows no quorum, the minority can force another vote by moving to request or compel the attendance of absent senators. Finally, senators can force votes by moving to adjourn or raising specious points of order and appealing the ruling of the chair.
The most effective methods of delay are those that force the majority to invoke cloture multiple times on the same measure. The most common example of this is to filibuster the motion to proceed to a bill, then filibuster the bill itself. The result is to force the majority to go through the entire cloture process twice in a row. Where, as is common, the majority seeks to pass a substitute amendment to the bill, a further cloture procedure is needed for the amendment.
The Senate is particularly vulnerable to serial cloture votes when it and the House have passed different versions of the same bill and want to go to conference (i.e., appoint a special committee of both houses to merge the bills). Normally, the majority asks unanimous consent to
However, if the minority objects, each of those motions is debatable, and therefore subject to a filibuster, and are divisible, meaning the minority can force them to be debated (and filibustered) separately. What's more, after the first two motions pass, but before the third does, senators can offer an unlimited number of motions to give the conferees non-binding instructions, which are debatable, amendable, and divisible. As a result, a determined minority could cause a great deal of delay before a conference.
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