Whether through elimination or reform, the filibuster cannot be allowed to impede the expansion of American democracy or the rights of all eligible voters. In the Senate, a filibuster is an attempt to delay or block a vote on a piece of legislation or a confirmation. When a senator or a group of senators introduces a new bill, it goes to the appropriate committee for discussion, hearings, and amendments.
If a majority of that committee votes in favor, the bill moves to the Senate floor for debate. Once a bill gets to a vote on the Senate floor, it requires a simple majority of 51 votes to pass after debate has ended. Under original Senate rules, cutting off debate required a motion that passed with a simple majority. But in , after Vice President Aaron Burr argued that the rule was redundant, the Senate stopped using the motion.
This change inadvertently gave senators the right to unlimited debate, meaning that they could indefinitely delay a bill without supermajority support from ever getting to a vote.
This tactic is what we now know as a filibuster. In , the Senate passed Rule XXII , or the cloture rule, which made it possible to break a filibuster with a two-thirds majority. In , the Senate reduced the requirement to 60 votes, which has effectively become the minimum needed to pass a law. There are, however, exceptions to the filibuster rule. Perhaps the most notable recent example pertains to presidential appointments. In , Democrats changed the Senate rules to enable the confirmation of executive branch positions — including the cabinet — and of non—Supreme Court judicial nominees with a simple majority.
Four years later, Senate Republicans expanded the change to include Supreme Court appointments. Both changes invoked what is known as the nuclear option, or an override of a rule to overcome obstruction by the minority. At times, the Senate has also exempted certain types of legislation from the cloture rule.
If the Senate agrees to the motion to reconsider, the new vote on the cloture motion then occurs immediately, and cloture is invoked if three-fifths of the full Senate or other majority, as appropriate now votes for it. The Senate sometimes agrees by unanimous consent to alter the way in which various requirements of the cloture rule apply to consideration of a specified matter.
In particular, Senators by unanimous consent sometimes permit a cloture motion to be filed on a matter that is not then pending. Also, as mentioned, the required quorum call preceding a cloture vote is often waived by consent. In addition, the Senate may give unanimous consent to adjust the time when the cloture vote will take place.
On some occasions, the Senate has even agreed, by unanimous consent, to vote on cloture at a specified time even though no cloture motion is formally filed. Any debatable question the Senate considers can be filibustered and, therefore, may be the subject of a cloture motion, unless the time for debate is limited by the Senate's rules, by law, or by a unanimous consent agreement. Consequently, Senators may present cloture motions to end debate on bills, resolutions, amendments, conference reports, motions to concur in or amend amendments of the House, executive business nominations and treaties , and various other debatable motions.
In relation to the Senate's initial consideration of a bill or resolution, there usually can be at least two filibusters under the Senate's standing rules: first, a filibuster on the motion to proceed to the measure's consideration; 19 and second, after the Senate agrees to this motion, a filibuster on the measure itself. If the Senate cannot agree to take up a measure by unanimous consent, the majority leader's recourse is to make a motion that the Senate proceed to its consideration.
This motion to proceed , as it is called, usually is debatable and, consequently, subject to a filibuster. Once the Senate adopts the motion to proceed and begins consideration of the measure itself, a filibuster on the measure then may begin, so that cloture must be sought anew on the measure itself.
Except by unanimous consent, cloture cannot be sought on the measure during consideration of the motion to proceed, because cloture may be moved only on a question that is pending before the Senate.
Threatened filibusters on motions to proceed once were rare but have become more common in recent years. In such situations, it has become common for the majority leader to move to proceed to consider the measure, immediately submit a motion for cloture on his motion to proceed, and then immediately withdraw the motion to proceed.
This proceeding permits the Senate to consider other business while the petition ripens rather than having to entertain extended debate on the motion to proceed. On the second following day, if the Senate defeats the motion for cloture, it continues with other business; if cloture is invoked, the action automatically brings back the motion to proceed as the pending business but under the restrictions of cloture. Sometimes an amendment provokes a filibuster even though the underlying bill does not.
If cloture is invoked on the amendment, the operation of cloture is exhausted once the amendment is disposed of. Thereafter, debate on the bill continues, but under the general rules of the Senate. On occasion, cloture has been invoked, in this way, separately on several amendments to a bill in succession.
Alternatively, cloture may be invoked on the bill itself, so that debate on the amendment continues under the restrictions of cloture on the overall measure. If the amendment is not germane to the bill, however, its supporters will oppose this approach, for as discussed later the cloture rule requires that amendments considered under cloture be germane.
If cloture is invoked on a bill while a non-germane amendment is pending, the amendment becomes out of order and may not be further considered. In such a case it may be necessary instead to invoke cloture on the amendment to secure a final vote on it and then, after the amendment is disposed of, move for cloture on the bill as well. After the Senate has passed a measure, additional action may be necessary so the Senate may go to conference with the House on the legislation. The motions necessary for this purpose are debatable, and as a result, supporters of the measure have occasionally found it necessary to move for cloture thereon.
Inasmuch as conference reports themselves are debatable, however, it may be necessary to move for cloture on a conference report. Occasionally, cloture has also been sought on other debatable questions, such as: motions to waive the Budget Act, overriding a presidential veto, or motions to recommit a measure with instructions that it be reported back forthwith with an amendment. The relation of cloture motions to filibusters may depend on when the cloture motions are filed.
Prior to the s, consideration of a matter was usually allowed to proceed for some days or even weeks before cloture was sought or cloture might not be sought at all. In more recent decades, it has become common to seek cloture on a matter much earlier in the course of consideration, even immediately after consideration has begun.
In some cases, a cloture motion has been filed, or has been deemed to have been filed, even before the matter in question has been called up. Because the rules permit filing a motion for cloture only on a pending question, either of these actions, of course, requires unanimous consent.
When cloture is sought before any dilatory action actually occurs, the action may be an indication that the threat of a filibuster is present, or at least is thought to be present. There often has been more than one cloture vote on the same question. If and when the Senate rejects a cloture motion, a Senator then can file a second motion to invoke cloture on that question. In some cases, Senators anticipate that a cloture motion may fail and file a second motion before the Senate has voted on the first one.
For example, one cloture motion may be presented on Monday and another on Tuesday. If the Senate rejects the first motion when it matures on Wednesday, the second motion will ripen for a vote on Thursday. If the Senate agrees to the first motion, of course, there is no need for it to act on the second. There have been instances in which there have been even more cloture votes on the same question. During the th Congress , for example, there were eight cloture votes, all unsuccessful, on a campaign finance bill.
It also may be necessary for the Senate to attempt cloture on several different questions to complete consideration of a single measure.
The possibility of having to obtain cloture first on a motion to proceed to consider a measure and subsequently also on the measure itself has already been discussed. Cloture on multiple questions may also be required when the Senate considers a bill with a pending amendment in the nature of a substitute. As already mentioned, once cloture has been invoked on a question, Rule XXII requires amendments to that question to be germane. As with other amendments, accordingly, if a pending amendment in the nature of a substitute contains provisions non-germane to the underlying bill, and the Senate proceeds to invoke cloture on the bill, further consideration of the substitute is rendered out of order.
In such a case, bringing action to a conclusion may require obtaining cloture first on the substitute and then, once the substitute has been adopted, also on the underlying bill.
In current practice, it is not unusual for the majority leader to move for cloture on the underlying bill immediately after filing cloture on the amendment in the nature of a substitute. Under these circumstances, the two-day layover required for each cloture motion is being fulfilled simultaneously for both. The first cloture motion filed on the amendment in the nature of a substitute ripens first, at which point the Senate votes on that cloture motion.
If cloture is invoked and after the Senate votes on adopting the substitute—after the possible 30 hours of post-cloture consideration—the second cloture motion on the bill is automatically pending, having already met the two-day layover.
In most cases, invoking cloture on a bill does not produce an immediate vote on it. In general, the effect of invoking cloture on a bill is only to guarantee that a vote will take place eventually. In general, Rule XXII imposes a cap of no more than 30 additional hours for the Senate to consider a question after invoking cloture on it.
The time used in debate is counted against the 30 hours, but so too is the time consumed by quorum calls, roll call votes, parliamentary inquiries, and all other proceedings that occur while the matter under cloture is pending before the Senate.
The hour period can be increased if the Senate agrees to a non-debatable motion for that purpose. Adopting this motion also requires a three-fifths vote of the Senators duly chosen and sworn.
During the period for post-cloture consideration, each Senator is entitled to speak for a total of not more than one hour. Senators may yield part or all of their time to any of four others: the majority or minority leaders or the majority or minority floor managers. None of these Senators can accumulate more than two hours of additional time for debate; but, in turn, they can yield some or all of their time to others.
There is insufficient time for all Senators to use their entire hour for debate within the hour cap for post-cloture consideration. This disparity results from a amendment to the cloture rule. Before , there was no cap at all on post-cloture consideration; the only restriction in Rule XXII was the limit of one hour per Senator for debate. The time consumed by reading amendments and conducting roll call votes and quorum calls was not deducted from anyone's hour.
As a result, Senators could and did engage in what became known as post-cloture filibusters. By offering one amendment after another, for example, and demanding roll call votes to dispose of them, Senators could consume hours of the Senate's time while consuming little if any of their allotted hour for debate. In theory, at least, this time period could accommodate the one hour of debate per Senator but only if Senators used all of the hours only for debate. Then, in , the Senate agreed, without significant dissent, to reduce the hours to 30 hours, while leaving unchanged the allocation of 1 hour for each Senator to debate.
The result is that there is not enough time available under cloture for each Senator to speak for an hour. However, Rule XXII does provide a limited protection for all Senators by providing that, when the 30 hours expire, "any Senator who has not used or yielded at least ten minutes, is, if he seeks recognition, guaranteed up to ten minutes, inclusive, to speak only.
Under these conditions, Senators may still be able to extend post-cloture consideration, but it typically would last little, if any, longer, than the 30 hours available under cloture.
Once cloture has imposed its definitive limit on further consideration, opponents sometimes see little benefit in the limited delay they might still obtain, and rather than insist on the use of the full 30 hours, they may instead permit a final vote well before the full time expires. In this case, the Senate may agree by unanimous consent that the 30 hours be considered to run continuously, even when the Senate is not actively considering the measure or even does not remain in session.
There is one other notable difference in the Senate's debate rules before and after cloture is invoked. As discussed above, Senate floor debate normally does not have to be germane, except when the Pastore rule applies.
Under cloture, debate must be germane. This requirement derives from the language of Rule XXII that allows each Senator to speak for no more than one hour "on the measure, motion, or other matter pending before the Senate. Senators wishing to enforce the requirement that debate be germane can do so by making points of order from the floor. There are several key restrictions governing the amendments that Senators can propose under cloture that do not apply to Senate floor amendments under most other circumstances.
Some of these restrictions also apply to other motions Senators may offer, or actions they may take, under cloture. Thus, immediately after a successful cloture vote, the majority leader or another Senator typically makes a point of order that one or more amendments that were pending when the vote began now must "fall" because they are not germane to the matter on which the Senate just invoked cloture. This germaneness requirement helps explain why the Senate may have to invoke cloture on an amendment to a bill and then invoke cloture again on the bill itself.
It is quite common for a Senate committee to report a bill back to the Senate with an amendment in the nature of a substitute—a complete alternative for the text of the bill as introduced.
The Senate almost always adopts this substitute as it has been amended on the floor immediately before voting to pass the bill as amended by the substitute. However, it also is not unusual for some provisions in the committee substitute to render it non-germane to the bill. Thus, if the Senate invokes cloture on the bill before it votes on the committee substitute, the substitute becomes out of order as non-germane, so that the Senate cannot agree to it.
To protect the committee substitute or any other non-germane amendment the Senate is considering , the Senate can first invoke cloture on the amendment. Doing so limits further consideration of the amendment to no more than 30 more hours. If the Senate then adopts the amendment, cloture no longer is in effect and Senators can filibuster the bill as amended.
However, inasmuch as the previous non-germane amendment is now part of the text of the bill, it therefore cannot now be non-germane to the bill. At this point, therefore, the Senate may again vote to invoke cloture, this time on the bill as amended. Any Senator can appeal the chair's ruling that a certain amendment is non-germane, allowing the Senate to overturn that ruling by simple majority vote. However, the Senate is unlikely to take this action because doing so could fundamentally undermine the integrity and utility of the cloture procedure.
Unless a Senator could be confident that, under cloture, his colleagues could not offer amendments on unrelated subjects that the Senator would insist on filibustering, that Senator would have serious qualms about ever voting for cloture.
On some occasions when a Senator appealed a ruling of the chair under cloture that an amendment was not germane, Senators who may have supported the amendment on its merits nonetheless voted to sustain the ruling of the chair with the long-run viability of the cloture rule in mind. Cloture is sometimes sought not for the purpose of overcoming a filibuster by debate, but primarily to trigger the requirement for germaneness of amendments.
One way in which this situation can occur may arise when Senators wish to secure floor consideration for a bill that the majority party leadership is reluctant to schedule for floor consideration.
Supporters of the bill may offer the text of that bill as a non-germane amendment to another bill that the majority party leadership is eager to pass. Opponents of the amendment may respond by moving for cloture on the bill, then prolonging the debate so as to prevent a vote on the amendment until the time comes for voting on the cloture motion. If the Senate votes to invoke cloture, the non-germane amendment is subject to a point of order.
In this way, its opponents can dispose of the amendment adversely without ever having to vote on it, or even on a motion to table it—but only, of course, if they can mobilize three-fifths of the Senate to vote for cloture. This possibility, which is more than hypothetical, illustrates that not every cloture vote takes place to overcome a filibuster that is already in progress. Under the general cloture procedures of paragraph 2 of Rule XXII, to be in order after cloture has been invoked, amendments must be submitted at the desk in writing and for printing in the Congressional Record before the cloture vote takes place.
Except by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close, unless it had been submitted in writing to the Journal Clerk by 1 o'clock p. Senators sometimes submit a large number of amendments to a bill for printing in the Congressional Record even before a cloture motion is presented. In some cases, this may be understood or intended as a signal that the Senators who submitted the amendments are contemplating a filibuster.
In practice, the deadline in Rule XXII usually gives Senators most or all of a day after cloture is proposed to draft germane amendments to the bill.
Submitting an amendment in writing does not exempt that amendment from the restriction that only germane amendments are in order under cloture. Senators then usually have most or all of the next day to review those first-degree amendments and to decide what second-degree amendments, if any, they might offer to them.
In this way, Senators can be fully aware of all the amendments they may encounter under cloture before they vote on whether or not to invoke cloture. Rule XXII establishes no separate deadline for submitting amendments in the nature of a substitute i. If it were submitted just before that deadline, Senators might have essentially no time to prepare amendments to it, because they, as first-degree amendments, would be subject to the same deadline as the substitute.
One result of these requirements is that, whenever cloture is proposed, Senators and their staffs must decide whether they need to prepare and submit amendments to the measure.
When the Senate has voted to invoke cloture on a bill, it is too late for a Senator then to think about what amendments to the bill he or she might want to propose. When a cloture motion is filed, Senators often conclude that they need to proceed with drafting whatever amendments they might want to offer, on the assumption that the Senate will approve the motion two days later.
One result is that there often are significantly more amendments submitted for printing in the Record than Senators actually offer after cloture is invoked. Under cloture, a Senator may not modify an amendment that he or she has offered. Permitting modifications would be inconsistent with the principle implicit in the cloture rule that Senators should be able to know what amendments may be offered under cloture before the Senate decides if it will invoke cloture.
In addition, if an amendment is submitted and called up after a cloture motion is filed, is then modified while the cloture motion is pending, and is still pending when cloture is invoked, then the amendment is no longer in order and falls, because the amendment, in its modified form, did not meet the filing deadline for an amendment to be considered under cloture.
Rule XXII permits only one limited circumstance in which Senators are allowed to change the amendments they offer under cloture. If a measure or other matter is reprinted for some reason after the Senate has invoked cloture on it and if the reprinting changes page and line numbers, amendments that otherwise are in order will remain in order and can be reprinted to make conforming changes in page and line numbering.
Vote on Motion to Invoke Cloture — H. Vote on H. Vote on Machin Amendment No. A more expansive version of the bill was brought up for a vote in and was voted down 44— But some of those votes may have been lost because the bill stood no chance of passing the Republican-controlled House. Bipartisan Background Checks Act of , H. Nomination of Neil M. Gorsuch to the U. Supreme Court, th Cong. Megan S. This is true for other policy arenas as well, such as in immigration.
For example, S. Michele L. In this article. InProgress Stay updated on our work on the most pressing issues of our time. How the filibuster empowers a small segment of America. The impact of the filibuster on legislative outcomes. This bill would have made it much harder to bring successful class action lawsuits. It easily passed the House 39 and fell one vote short of overcoming a Senate filibuster. This energy bill was filibustered because of a provision that would have protected companies from liability for producing and distributing MTBE, a gasoline additive that can contaminate drinking water.
Oil companies have since paid hundreds of millions of dollars in settlements to clean up water contamination. Although the Patriot Act was eventually reauthorized in , one day before it was due to expire, 45 the final version of the bill contained several new protections for civil liberties—concessions that were won due to a filibuster of the version of the bill. This bill would have permanently repealed the estate tax. This bill would have significantly weakened and reduced the estate tax.
This bill would have made it illegal to perform an abortion after 20 weeks of pregnancy. The bill was drastically scaled down after a Republican filibuster, joined by one Democrat, Sen. This bill would have made it illegal for an employer to threaten or take steps to replace an employee who exercised collective bargaining rights.
This bill would have created a voluntary partial public-financing system for federal campaigns. The LDA tightened weak and outdated rules requiring lobbyists to register and disclose their clients and lobbying activity.
Although the final Dodd-Frank bill imposed new, far-reaching financial regulations, it also contained some compromises. Democrats were one short of the 60 votes they needed to pass a bill along party lines, and therefore made some significant concessions in order to win Republican votes in the Senate—perhaps most notably, a weakening of the Volcker Rule, which aimed to separate the banking system from the hedge funds, private equity funds, and proprietary trading activities that take bets on the ups and downs of the market.
The DISCLOSE Act sought to substantially increase disclosure requirements for money spent to influence elections, including payments for election-related advertisements run by nonprofit organizations. It was blocked twice, coming within one vote of overcoming the second filibuster. This bill would have given tax breaks to businesses that returned jobs from overseas to the United States and eliminated tax benefits for companies that moved jobs overseas.
This bill would have made it easier for women to raise discrimination claims against their employer if they were paid inequitable wages. It would also have increased penalties and strengthened protections against retaliation for employees that raised complaints.
The bill was filibustered again in , when it received 52 votes. Senate Democrats attempted to pass two amendments to this bill. This bill would have extended, through , stimulus bill benefits to recipients of Social Security, Supplemental Security Income, railroad retirement benefits, and veterans disability compensation or pension benefits, as well as a tax credit for government retirees.
The bill was intended, in part, to make up for the fact that, due to congressional inaction, recipients of Social Security had not received the usual cost of living adjustment in This bill would have allowed public safety officers—for example, police and firefighters employed by state and local governments—the right to collectively bargain and form a union.
The DREAM Act would have provided a path to citizenship for undocumented immigrants who arrived in the United States before their 16th birthday, provided that they attended college or served in the military.
It was first filibustered as a part of a defense appropriation bill and then as an amendment to the Removal Clarification Act that had already passed the House during a lame-duck session of Congress. Placed in such situations, opposition senators have consistently proven to be less likely to filibuster. This suggests that they do not want to inconvenience their colleagues by forcing a rare late-night or weekend session.
Cloture has also empowered the majority leader to limit the floor amendments senators may offer to legislation. It does so by imposing a germaneness requirement on all amendments proposed after senators have agreed to invoke cloture. A germaneness requirement may spare majority-party senators from having to take politically damaging votes on non-germane amendments. It also serves to protect carefully crafted legislation from amendments unrelated to the underlying issue.
The majority leader has also used cloture for illustrative purposes. When done so effectively, the procedure establishes a clearly defined line of demarcation between the majority and minority parties by triggering an up-or-down vote on legislation or a presidential nomination.
The majority leader may cast such votes as take-it-or-leave-it propositions. In doing so, the majority party can portray the senators who vote against cloture as not supporting the underlying question.
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