Notice & Comment

Examining Procedures for How the Senate Filibuster Could Be Eliminated

The days of the Senate filibuster are likely numbered. Recently, President Obama called for eliminating the filibuster as a relic of Jim Crow. Likewise, President Trump has repeatedly called for eliminating the filibuster, and Joe Biden has indicated openness to eliminating the filibuster.

If the Senate were to eliminate the filibuster, this is not the first time in history that a house of Congress would overturn an unintended, super-majority requirement. The Senate’s decision to eliminate or otherwise modify the filibuster is also not as simple as eliminating the super-majority requirement. The Senate would have to consider whether to change the time required to break a filibuster and which procedural method to use in eliminating the filibuster.

History of the House of Representatives’ Rules

Like the Senate today, the U.S. House of Representatives used to require a super-majority to pass any legislation. Surviving to today, the House has a rule that “[a House] rule may not be suspended except by a vote of two-thirds of the Members voting.” Originally, the House also had a rule that bills would be considered generally in the order that they were placed on the House calendar (e.g., when committees approved the bill). While this was not a problem when the House was only 68 members, the growing size of the House and the complexity of a growing international economy caused massive increases in proposed legislation.

As more controversial and/or complex bills took more time to craft, they usually took more time to reach the House calendar. Further, the minority party could often require delaying votes on motions that would limit the time the House had to consider legislation. By the late 1800s, there was not enough time for the House to consider any bills that were placed later on the calendar. As such, to even consider a controversial or complex bill, the House effectively had to suspend the rules by a two-thirds vote.

The effort to eliminate the super-majority requirement was largely spearheaded by eventual Speaker of the House, Thomas Brackett Reed. He believed that the only right of the minority party was “to draw its pay.”

The elimination of this two-thirds requirement was a gradual process. First, with Reed just as the chairman of the House Committee on Rules, the House in 1883 considered a “special rule” to eliminate the calendar requirements for considering a bill. For the special rule, the House Committee on Rules created a special rule specifying that a tariff bill supported by the majority leadership may be considered out of the order required by the House Rules. The full House, through only a simple-majority vote, passed the special rule.

When Reed became speaker in 1889, he further used this process of approving special rules to limit times for debate and to prevent amendments. By 1935, nearly any important issue for debate was decided under a special rule that limited how the bill would be considered.

This practice has continued into the present. Before the House considers any important legislation, it will first pass by a simple-majority vote a special rule (i) limiting debate, (ii) limiting the amendments to be considered, and/or (iii) waiving any violations of the House Rules.

The Filibuster Rule

The filibuster is not a rule, but an absence of a rule to end debate. Specifically, Rule XXII of the Senate Rules only allows the Senate to vote on limited matters without debate:

[T]he motions relating to adjournment, to take a recess, to proceed to the consideration of executive business, to lay on the table, shall be decided without debate.

Additionally, statutes proscribe that several issues, such as the Congressional Review Act, have limited time for debate in the Senate and thus cannot be filibustered. For all other matters, including passing legislation and considering amendments, the Senate allows unlimited debate.

A Filibuster in Practice

As long as at least one senator wishes to debate an issue, the senator can prevent a vote. However, the senator can only exercise the right by actually speaking on the floor. Needing to eat, sleep, or go to the bathroom would require the senator to vacate the floor.

While the Senate could easily wait out one member, as in Mr. Smith Goes to Washington, a group of senators filibustering essentially could speak indefinitely. Theoretically, Rule XIX of the Senate Rules places a limitation on this practice by allowing the Senate to limit senators from speaking more than twice on an issue during a legislative day (the day is not based on a calendar day and the Senate could extend the day indefinitely), but that would be a practical impossibility. Assuming numbers based on the current composition of the Senate with 47 minority-party members each speaking for a modest five hours (individual filibuster speeches have lasted up to 24 hours), they could speak for 470 hours of debate, which is nearly 20 days if the Senate met 24/7.

While it may initially seem like a pain for the minority party to filibuster this long, it is actually much more painful for the majority to overcome a filibuster. To filibuster, the minority only needs one senator to speak at a time. The rest can relax and do whatever they want (e.g., eat, sleep at their homes, or travel to their states). However, the majority needs 50 senators present near the Senate chambers at all times. If they are not present, the minority filibustering can note that a quorum is not present and request that the Senate recess for the day, further delaying Senate action. As such, when the Senate has previously tried to overcome a filibuster, majority-party senators have had to sleep on cots in the Capitol. Thus, the threat of a filibuster is itself enough to effectively kill consideration of an issue. Consequently, all recent examples of talking filibusters have not been actual filibusters to delay consideration of an issue, but messaging tools to express a senator’s strong dislike of an issue.

Cloture Rule to Break a Filibuster

In response to the pains of breaking a filibuster, Senate Rule XXII has a cloture rule that allows the Senate to limit debate to 30 hours with a three-fifths vote:

[A]at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate . . . . And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of. . . . After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before the final vote begins. 

Although not talked about as much as the 60-vote requirement, the 30-hours of debate requirement to overcome a filibuster is almost as important. This time requirement is where the individual power of most senators comes from. The Senate only has a limited amount of floor time to consider matters. While the 30-hours of debate on a major issue may not be a big concern to the Senate, the ability to force multiple 30-hours of debate on several issues, even on otherwise non-controversial issues, can effectively prevent the Senate from passing more than two or three issues per week. Senators have traditionally most effectively used this time requirement to obtain policy concession from the president by “holding” up nominations.

For instance, Senator Shelby previously placed holds on all executive nominees so that President Obama would address two issues related to Alabama. Even members of the president’s party have used this authority. Senator Landrieu placed a hold on an Obama cabinet nominee so that the Obama Administration would allow oil drilling in the Gulf of Mexico. Likewise, Senator Gardner placed a hold on Department of Justice nominees from the Trump Administration to prevent the Department of Justice from prosecuting legalized (under state law, but not federal law) marijuana.

Recent Changes to the Filibuster

The use of the filibuster has increased almost exponentially over the previous two decades. In response, Senate Democrats in 2013 reduced the cloture requirement for non-Supreme Court nominees to a simple majority. In 2017, Senate Republicans also included Supreme Court nominees in the lower cloture requirement. However, these changes still kept the 30-hours of debate for cloture, which effectively prevented “lower-level” nominees from getting cloture votes as the Senate did not have enough time to consider all the nominees. As such, in 2019 Senate Republicans lowered the time requirement for debate on nominees.

Ways to Eliminate the Filibuster

The Senate has three procedural ways it could eliminate the filibuster. First, it could follow its previous practice of changing Senate precedent. Second, it could directly amend the Senate Rules. Third, it could use the House process of passing special rules.

Senate Precedent

The Senate acts by precedent. As such, an interpretation of a Senate Rule will hold as an interpretation in future instances of a rule. While the non-partisan Senate parliamentarian traditionally makes interpretations of a rule based on prior precedent (and absent prior precedent, uses her best understanding of a rule), the Senate president pro tempore or the Senate by majority vote may disagree with her determination and instead use its own interpretation.

The Senate used this process to create the recent changes to the cloture rule. For instance, in 2013 the majority leader said that except for nominations to the Supreme Court, cloture only required a simple majority. The Senate president pro tempore, on the advice of the parliamentarian, disagreed with the interpretation. The majority leader then appealed the issue to the Senate floor. The Senate voted that the parliamentarian was incorrect.

The advantage of this method is that it is simple and quick, requiring a single vote that can happen at any time. One disadvantage is that this precedent change cannot be that complex because the change is limited by the practical limitations of an oral description of the new precedent. A second disadvantage is that the change creates a confusing rulebook as the actual use of a rule would differ from how it is described in the Rules.

Amend the Senate Rules

Senate Rule XXII specifies that any amendment of the Senate Rules requires two-thirds support for a cloture vote, effectively requiring 67 votes to change the filibuster and/or cloture rules. While this may seem like an impossible task given that the minority party would likely object to curtailing of its rights, a rules change is not as impossible as it may seem.

First, a change to the filibuster rule could come at a time that would not necessarily benefit either party. Over 67 senators would likely support eliminating the filibuster when their party is in power. If any rules change were to go into effect in the future, then senators could compromise to pass the rules change now. For instance, Democrats could call for an immediate change to the Senate Rules. As any new legislation would require House Democrats to agree, the rules change would not effectively eliminate Democrats’ rights. Each party, hoping to win in 2020, could see the rules change as benefiting their party in the long term. This could especially be accomplished if President Trump continues to pressure Senate Republicans to eliminate the filibuster.

Second, a change to the filibuster rule could come through a compromise. The minority party, realizing that the Senate was about to eliminate the filibuster, could come to a compromise to lower the threshold for cloture and/or limit the time for debate. This deal would still preserve some form of the filibuster, but maintain some minority rights. The minority could even use a unilateral offer of a compromise to make the majority party seem more unreasonable.

The big advantage of changing the Senate Rules is it would create a clear, understandable set of rules. The big disadvantage to using this method would be the difficulty in getting 67 votes.

Use Special Rules

The Senate could use the House’s method of having a fairly robust rulebook with extensive restrictions and minority rights, but effectively ignoring the rulebook by passing special rules before considering legislation.

The Senate has even already quasi begun this process. When considering the 2019 change to reduce the time for cloture on nominations, the Senate Committee on Rules passed a resolution to lower the time allowed for debate on a nomination. The resolution would have set a new permanent precedent, but not changed the rulebook itself. However, when setting a new precedent, the Senate continued to use an oral interpretation of the rules and ignored the Senate Rules Committee’s resolution.

Using special rules would have advantages for the majority party of being much more robust and also potentially more politically appealing. First, using special rules would set the precedent of allowing the Senate not only to avoid filibusters, but ignore other rules. Second, the majority party could try to politically frame an issue as an important policy issue they were elected to enact. Thus, they want to eliminate the filibuster for only that bill, but keep it for other bills. This could appear as a more limited change to the Senate Rules. Specifically, all recent changes to the Senate Rules regarding filibusters have also tried to politically appear as a more limited change.

The major disadvantage of this change would be instead of just eliminating the Senate rule on filibusters, it would effectively eliminate the Senate Rules as the basis for Senate procedures.

Conclusion

While politicians of both parties have talked about eliminating the filibuster, it is not a straightforward decision. The Senate would need to consider whether to also reduce the time requirements on debate and decide how to eliminate the filibuster. If the history of the House is any indication, a future change in the filibuster is likely just a step in an already begun gradual process of the Senate seeking Thomas Bracket Reed’s goal of the only minority-party right being to draw its pay.