Filibustered

The U.S. Senator from Oregon who is leading the fight to restore the talking filibuster explains how changing just one rule could save our democracy In a compelling and powerfully argued book, Senator Jeff Merkley and his longtime chief of staff tell the insiders’ story of how the Senate used to work and how the filibuster came to cripple the self-styled “World’s Greatest Deliberative Body” with paralyzing gridlock. And they make the surprising case that restoring a modified version of the old-style, talking filibuster may just be our democracy’s path back from the brink. For nearly two centuries, the Senate designed by the Founders served the purpose they envisioned: it was a deliberative legislative body where the nation’s thorniest challenges were hashed out. Senators had the ability to speak at length and offer any manner of amendments to influence bills, and then when all had had a say, the Senate voted. Senators who objected to passing a bill could wage a defiant filibuster—in the spirit of fictional Senator Smith who talked until he collapsed in order to block a corrupt railroad deal in the classic 1939 film Mr. Smith Goes to Washington. But at the end of the day, nearly all legislation, amendments, and nominations went to a vote, and the majority prevailed. Today, however, thanks to abuse of a fifty-year-old reform intended to make it easier for the Senate to pass legislation, the exceedingly difficult, rare filibuster has morphed, plunging the Senate into dysfunction and threatening the very foundations of our democracy. Now, the minority party can simply declare a “no-talk” filibuster, insisting on a supermajority of sixty votes to pass nearly any bill or a lengthy process to confirm any of the president’s nominees—giving themselves a veto over the majority’s agenda. Wildly popular bills languish, judgeships and administrative posts remain unfilled, but ordinary citizens can’t see why because the obstruction all takes place behind closed doors. Filibustered! combines a marvelous romp through key moments in filibuster history—from the first filibuster in 1841 through Southern Dixiecrat filibusters of civil rights legislation, up through Mitch McConnell’s transformation of the filibuster into a routine tool of perennial gridlock—with firsthand accounts of recent high-profile legislative fights, and a compelling argument that the key to the Senate’s future may be found in its past.

This fascinating study sheds new light on antebellum America's notorious "filibusters--the freebooters and adventurers who organized or participated in armed invasions of nations with whom the United States was formally at peace. Offering the first full-scale analysis of the filibustering movement, Robert May relates the often-tragic stories of illegal expeditions into Cuba, Mexico, Ecuador, Nicaragua, and other Latin American countries and details surprising numbers of aborted plots, as well. May investigates why thousands of men joined filibustering expeditions, how they were financed, and why the U.S. government had little success in curtailing them. Surveying antebellum popular media, he shows how the filibustering phenomenon infiltrated the American psyche in newspapers, theater, music, advertising, and literature. Condemned abroad as pirates, frequently in language strikingly similar to modern American denunciations of foreign terrorists, the filibusters were often celebrated at home as heroes who epitomized the spirit of Manifest Destiny. May concludes by exploring the national consequences of filibustering, arguing that the practice inflicted lasting damage on U.S. relations with foreign countries and contributed to the North-South division over slavery that culminated in the Civil War.

The filibuster is widely viewed as one of the Senate's most characteristic procedural features. Filibustering includes any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote. The possibility of filibusters exists because Senate rules place few limits on Senators' rights and opportunities in the legislative process. In particular, a Senator who seeks recognition usually has a right to the floor if no other Senator is speaking, and then that Senator may speak for as long as he or she wishes. Also, there is no motion by which a simple majority of the Senate can stop a debate and allow itself to vote in favor of an amendment, a bill or resolution, or most other debatable questions. Most bills, indeed, are potentially subject to at least two filibusters before the Senate votes on final passage: first, a filibuster on a motion to proceed to the bill's consideration and, second, after the Senate agrees to this motion, a filibuster on the bill itself. Senate Rule XXII, however, known as the cloture rule, enables Senators to end a filibuster on any debatable matter the Senate is considering. Sixteen Senators initiate this process by presenting a motion to end the debate. In most circumstances, the Senate does not vote on this cloture motion until the second day of session after the motion is made. Then, it requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture. (Invoking cloture on a proposal to amend the Senate's standing rules requires the support of two-thirds of the Senators present and voting, whereas cloture on nominations other than to the U.S. Supreme Court requires a numerical majority.) The primary effect of invoking cloture on most questions is to impose a maximum of 30 additional hours for considering that question. This 30-hour period for consideration encompasses all time consumed by roll call votes, quorum calls, and other actions, as well as the time used for debate. Under cloture, as well, the only amendments Senators can offer are ones that are germane and were submitted in writing before the cloture vote took place. Finally, the presiding officer also enjoys certain additional powers under cloture such as, for example, the power to count to determine whether a quorum is present and to rule amendments, motions, and other actions out of order on the grounds that they are dilatory. The ability of Senators to engage in filibusters has a profound and pervasive effect on how the Senate conducts its business on the floor. In the face of a threatened filibuster, for example, the majority leader may decide not to call a bill up for floor consideration or to defer calling it up if there are other, equally important bills the Senate can consider and pass with less delay. Similarly, the prospect of a filibuster can persuade a bill's proponents to accept changes in the bill that they do not support but that are necessary to prevent an actual filibuster. This report concentrates on the operation of cloture under the general provisions of Senate Rule XXII, paragraph 2. It identifies modifications (including temporary ones) in rules governing debate agreed to at the beginning of the 113th Congress, but the detailed provisions of these changes are addressed in CRS Report R42996, Changes to Senate Procedures at the Start of the 113th Congress Affecting the Operation of Cloture (S.Res. 15 and S.Res. 16), by Elizabeth Rybicki. This report will be updated as events warrant.

Special rules enable the Senate to act despite the filibuster. Sometimes. Most people believe that, in today's partisan environment, the filibuster prevents the Senate from acting on all but the least controversial matters. But this is not exactly correct. In fact, the Senate since the 1970s has created a series of special rules—described by Molly Reynolds as “majoritarian exceptions”—that limit debate on a wide range of measures on the Senate floor. The details of these exemptions might sound arcane and technical, but in practice they have enabled the Senate to act even when it otherwise seemed paralyzed. Important examples include procedures used to pass the annual congressional budget resolution, enact budget reconciliation bills, review proposals to close military bases, attempt to prevent arms sales, ratify trade agreements, and reconsider regulations promulgated by the executive branch. Reynolds argues that these procedures represent a key instrument of majority party power in the Senate. They allow the majority—even if it does not have the sixty votes needed to block a filibuster—to produce policies that will improve its future electoral prospects, and thus increase the chances it remains the majority party. As a case study, Exceptions to the Rule examines the Senate's role in the budget reconciliation process, in which particular congressional committees are charged with developing procedurally protected proposals to alter certain federal programs in their jurisdictions. Created as a way of helping Congress work through tricky budget issues, the reconciliation process has become a powerful tool for the majority party to bypass the minority and adopt policy changes in hopes that it will benefit in the next election cycle.

In the modern Congress, one of the highest hurdles for major bills or nominations is gaining the sixty votes necessary to shut off a filibuster in the Senate. But this wasn’t always the case. Both citizens and scholars tend to think of the legislative process as a game played by the rules in which votes are the critical commodity—the side that has the most votes wins. In this comprehensive volume,Gregory Koger shows, on the contrary, that filibustering is a game with slippery rules in which legislators who think fast and try hard can triumph over superior numbers. Filibustering explains how and why obstruction has been institutionalized in the U.S. Senate over the last fifty years, and how this transformation affects politics and policymaking. Koger also traces the lively history of filibustering in the U.S. House during the nineteenth century and measures the effects of filibustering—bills killed, compromises struck, and new issues raised by obstruction. Unparalleled in the depth of its theory and its combination of historical and political analysis, Filibustering will be the definitive study of its subject for years to come.

The U.S. Senator from Oregon who is leading the fight to restore the talking filibuster explains how changing just one rule could save our democracy If we want to fix what ails America, we have to fix the Senate. And if we want to fix the Senate, we must fix the broken filibuster. Now, in a compelling and powerfully argued little book, Senator Jeff Merkley offers a concise and eye-opening history of how the present-day version of the filibuster has crippled the self-styled "World's Greatest Deliberative Body" with paralyzing gridlock, and makes the surprising case that restoring the old-style filibuster may just be our democracy's path back from the brink. Once, Senators who objected to passing a bill waged a defiant filibuster, in the spirit of fictional Senator Smith who talked until he collapsed in order to block a corrupt railroad deal in the classic 1939 film Mr. Smith Goes to Washington. Now, however, thanks to Senator Mitch McConnell's abuse of a fifty-year-old reform intended to make it easier for the Senate to pass legislation, the minority party can simply insist on sixty votes to pass most bills--and then refuse to provide them. Wildly popular bills languish, but ordinary citizens can't see why because the obstruction all takes place behind closed doors. Filibustered! combines a marvelous romp through key moments in filibuster history, with a compelling argument for restoring this key tool of American governance.

Filibusters are often covered by the news media, but what is their purpose? How long can they last, and what are the rules that must be followed during a filibuster? Readers discover the answers to these and other common questions about this unique part of American politics as they explore some of the most famous filibusters in U.S. history, including recent filibusters by Wendy Davis and Nancy Pelosi. Sidebars encourage readers to become more active citizens, and discussion questions allow young people to examine their own opinions about the American political process.

With a new epilogue on filibuster battles under the Biden administration THE CASE FOR ENDING THE FILIBUSTER "A truly excellent book… blistering and persuasive.” —Ezra Klein, New York Times An insider’s account of how politicians representing a radical white minority of Americans have used “the world’s greatest deliberative body” to hijack our democracy. Our democracy is under assault from homegrown authoritarians, with most observers blaming Donald Trump and the Republican Party that submitted to him. Yet as Adam Jentleson shows, the problem not only goes back to the nineteenth century, but is less about the presidency than it is about our nation’s most venerated institution: the United States Senate. A revelatory history of minority rule in America as expressed through the Senate filibuster, Kill Switch shows that white conservatives have long relied on the filibuster—which is not featured in the Constitution, and which, as Jentleson demonstrates, the Framers would have opposed—to shut down attempts to create a multiracial democracy. Featuring a new epilogue on filibuster battles under the Biden administration, Kill Switch will remain an essential warning about the costs of empowering this nation’s right-wing minority. • “Jentleson understands the inner workings of the institution, down to the most granular details, showing precisely how arcane procedural rules can be leveraged to dramatic effect.” —Jennifer Szalai, New York Times • “Careful and thorough and exacting.” —Michael Tomasky, New York Review of Books • “[An] excellent, surprising new book.” —Benjamin Wallace-Wells, The New Yorker