Explain the Actual Application of a Filibuster

I think I’m in need of a thoroughly detailed explanation of how a filibuster actually works. I’m aware of how it works in theory, or rather, how the threat of a filibuster works in theory.

In particular, I’m interested in its application in the health care debate. One excuse offered by Democrats for all the compromises on health care reform is that they want to draft a bill that is palatable to at least a few Republicans, so that if a bill is filibustered, they will have the requisite 60 votes to invoke cloture.

Here’s where things get tricky in my mind. The threat of a filibuster is obviously enough to cause some legislative contortions. What if the Democrats called the Republicans’ bluff on this and pushed forward a bill knowing that it would be inevitably filibustered.

Wouldn’t a Republican senator then have to actually deliver a refutation, or at the very least, read from a dictionary? Just how relevant to the topic of discussion does this have to be?

Is there a time limit on filibusters? What if the Democrats waited the GOP senator out? Could said GOP senator “tag-team” with another GOP senator to prolong the filibuster while allowing the first one to rest, or must each filibuster be performed by only one senator after submitting the appropriate motion?

Does a filibuster obstruct all other items on the legislative agenda?

Perhaps this is straying into Great Debates here, but assume three things for the sake of my next question. (1) Certain GOP senators maintain a legislative gridlock via filibuster, (2) the Democrats had the wherewithal to wait this out, and (3) there are at least 51 votes in the Senate in favor of the bill. Wouldn’t this be a PR nightmare for the obstructing senator, and possibly the senator’s party as a whole?
To recap:
[ol]
[li]How germane does a filibuster have to be to the issue at hand?[/li][li]Is there a time limit on a filibuster (clearly not in the short term [would defeat the purpose], but it must be less than 6 years, right)?[/li][li]Can senators perform a “relay” filibuster, or does each filibuster have to start anew (with new proceedings, etc.) for each new speaker?[/li][li] How obstructive to the legislative process are filibusters?[/li][li] What all this is more or less getting at is, is a determined group of 51 senators really prevented from passing a bill by a filibuster?[/li][/ol]
I realize that’s a lot to throw at you, so thanks for making it this far. Any erudition would be greatly appreciated.

  1. A filibuster need not be related to the issue at hand. There is no Senate rule on what a filibuster is, so there are very few bounds on what can be filibustered (the only exceptions are a handful of non-debatable motions) and zero bounds on why something can be filibustered.
  2. No. The whole point of a filibuster is that is takes advantage of the Senate’s tolerance for unlimited debate – unless there are sufficient votes to invoke cloture, which forces an end to a filibuster after 30 hours of additional debate. Cloture requires the assent of 3/5 of the serving senators, typically 60 votes.
  3. “Relay” filibusters are not a problem.
  4. No legislative business whatsoever can be conducted during a true filibuster in which someone is speaking the whole time. Passage of routine bills and nominations require someone to have the floor before they can be approved, but if someone or groups of someone are speaking continuously, that doesn’t happen.
  5. A determined group of 41 senators can block a bill until one of two things happen: 1) the bloc breaks apart and there are sufficient votes to invoke cloture or 2) physical exhaustion sets in to the point at which the beleaguered legislators simply throw in the towel.

I should add one more thing: there is a rare procedure called “reconciliation” which carries with it a certain set of rules, that is, that a bill can be called up and a time limit enforced on it so that it cannot be filibustered and could be passed with 51 votes.

This procedure is infrequently used because it was established as a means to allow the Senate to take difficult votes on tough measures to reduce the deficit. It was not originally intended to be used for passing controversial legislation, however, due to the way the rule was written, it is possible to sneak certain types of bills with certain budgetary impacts in under the rule.

Doing so is controversial because it eliminates the right of the minority party to filibuster. Even senators who are in the majority understand, what with their long terms and high rates of re-election, that if they pursue the “reconciliation” tactic unwisely, there will be a day when the shoe is on the other foot, and they may find themselves in the minority and unable to stop a bill they think is very bad.

In practice, though, if there is a “real” filibuster, there’s probably not going to be much reading from the dictionary. What you’re more likely to see are endless quorum calls.

Ravenman, thanks for the in-depth reply. I suppose what I’m getting at is whether a filibuster can really, ultimately prevent a bill from being passed by a slim majority. Certainly there are indications that the founders preferred super-majorities in particular circumstances (e.g. Constitutional amendment), but a bill only requires 51 votes to pass in the Senate. Understandably, a filibuster is a method to avoid the “tyranny of the majority”, but it seems to me that a majority is a majority. If a filibuster fails to sway enough votes, it seems like a majority should still be able to pass a bill. Clearly my understanding is incomplete.

I may be wrong, but what I think you may be thinking of is that if a filibuster is going on, then 60 votes is needed to pass a bill. That’s not the case. 60 votes are needed to bring debate to a close on something. There are only two common ways the Senate is allowed to vote on anything: 1, cloture is invoked and debate is forced to an end, or 2) senators no longer wish to debate the matter.

To say it another way, it still takes a majority to pass a bill in the Senate, whether or not a filibuster has taken place. However, it takes a 3/5ths vote to get to the point where a vote can be taken on the matter. I hope I’m explaining that clearly.

All budgets are passed under the reconciliation process AFAIK. Over the past several years, the majority has threatened to pass other bills under the reconciliation process. Bush’s tax cuts were successfully passed using the 50 vote method.

http://www.prospect.org/cs/articles?article=the_fifty_vote_senate
http://www.brookings.edu/articles/2009/0420_budget_mann.aspx

How is cloture invoked while someone is staging a filibuster? Does a senator just stand up, interupt the speaker and say, “All right, I want to take a vote on cloture,” forcing the speaker to pause just long enough for them to take the vote? And if the vote fails, does the speaker just go back up and keep on talking?

Right. From Senate Rule XXII:

Rule XXII also limits motions while a question is pending – only certain motions may be made: to adjourn, to recess, to proceed to the consideration of executive business, to lay on the table, to postpone, to commit, or to amend.

No, budget bills are not always passed through reconciliation. In fact, it is fairly rare for reconciliation to be used for substantive policy measures.

The federal budget is made up of many pieces. The “budget” is a non-binding blueprint passed by Congress (and not sent to the President) generally in May each year. The budget resolution gives a general outline of how much money will be spent and how much revenue to expect. The budget itself doesn’t spend any money or increase taxes. The budget resolution may direct congressional committees to draft legislation to change entitlement spending or change tax policy. In the past, these “reconciliation” instructions were intended to fine tune entitlement spending and tax policy to allow the government to hit deficit reduction goals.

During the Republican control of Congress during Clinton’s term, the scope of reconciliation was expanded from a kind of budgetary housekeeping process into a means to pass major legislation. Bush’s tax cuts are pretty much the only thing that has been brought up under reconciliation since then.

Other budgetary bills, such as appropriations bills, are guided by the budget resolution, but do not enjoy protection from filibuster.

While someone is talking, a cloture petition may be signed by 16 senators indicating that they want to have a cloture vote. Once received by the presiding officer, a vote is automatically scheduled for two days later. If someone is speaking during that time, they are interrupted for the vote.

If the vote fails, the debate continues. If cloture is invoked, then there are 30 hours of debate, followed by a vote on whatever matter is at hand.

It can take multiple cloture votes to pass a controversial bill. For example, there could be a filibuster on the motion to call up a bill, a filibuster on any amendment to the bill (meaning many amendments may be filibustered), and a filibuster on final passage of the bill.

Never mind…

That’s not necessarily the case. It is a question of tactics.

The Majority Leader may end any quorum call by compelling the Sergeant at Arms to arrest senators and bring them to the Floor. If senators wished to filibuster by putting the Senate into quorum call after quorum call, then all senators could be spending an awful lot of time on the Senate floor.

Never mind…

Also note that filibusters no longer require anyone to speak at all. All you need to do is threaten to filibuster, and suddenly the side supporting the bill needs 60 votes to pass it.

That’s the practical effect of threatening a filibuster, yes. Of course, it still takes only 51 votes to pass a measure – but that means being able to bring it to a vote. The threat of a filibuster has replaced the actual filibuster in revising tactics, so that the majority intent on forcing a law through must not only assure itself of 51 votes to pass it, but also of the 60 votes needed to pass cloture in case the minority does decide to filibuster.

Note that the effect of a filibuster is to delay all business before the Senate until after it ends. That means that part of the effect of a filibuster is not merely to delay but to eat away at a majority by attrition – if Senator X is a lukewarm supporter of bill A, now being filibustered, but a sponsor and with much of his political capital invested in bill B, being held up behind it, he is likely to sooner or later say, “Hey, let’s let A lie over until next term so we can get down to the rest of the pending business, like my B.” Filibuster long enough, and the cumulative effect on the ‘other’ supporters of A, the ones that the Senators it matters most to lined up to help them, will be to erode away the majority – they’ll want to get down to passing B, C, D, and E, on which their own political future may well rest, and while they may favor A, they’re willing to play a waiting game and let it die until the following term, rather than wait out the filibuster to get their own pet measures passed after A.

Ok, I disavow any direct knowledge of this topic but…

  1. My brookings link listed 19 bills passed by the Senate under reconciliation since 1980. I’m not saying that’s a large number, I’m just saying it’s – well, it’s 19.

  2. Wikipedia, an insufficiently reliable source in this murky context states: “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.”

  3. TPM, a more reliable source, said this March:

Emphasis added. So the evidence indicates that budget resolutions are protected from filibuster in some way.

  1. Here’s an article on how filibusters do not necessarily involve extemporaneous speaking by the minority party. In practice they involve quorum calls. The Myth of the Filibuster. I assume that if the majority does not have a quorum, then the speaker won’t bother to have the Senators rounded up. That’s a pretty good article by the way: it’s clear that the version taught in high school civics isn’t true today and indeed probably never was.

Very briefly –

  1. Of the 19 measures passed under reconciliation, only four have been passed into law in the last ten years, compared to nine in the first 10 years. Reconciliation was supposed to be done every year, and now it’s increasingly rare.
  2. Surprise, Wikipedia is wrong. “Budget bills” isn’t a sufficiently precise term to mean anything. There’s a host of “budget bills” being passed into law NOT using reconciliation – for example, the Medicare prescription drug benefit and the annual extensions of the Alternative Minimum Tax patch. Again, the budget resolution has to specify which pieces of legislation have reconciliation protection – it isn’t “any” budget bill.
  3. The bill was an appropriations bill which never has reconciliation instructions. The non-filibusterable thing referenced in the article was the budget resolution, which isn’t part of the reconciliation process, it ESTABLISHES the reconciliation process each year. Law requires that the budget resolution be considered under a strict time limit.

What’s more, there is a reference that a climate change bill could be considered under reconciliation. There was debate about whether or not to include climate change in the budget resolution as a matter that would be protected under reconciliation. Ultimately, it was not included, so if a climate change “budget” bill were to come to the floor this year, it’d have to have 60 votes to end a filibuster.

  1. Again, I said it’s a question of tactics. As in, not a question of rules, really. If a party wanted to stage a filibuster by quorum call, there are tactics that could be used to counter that; but there’s no rule to be enforced that would require someone to speak. There have also been filibusters by amendment and by endless roll call votes, and both have been countered (and eliminated) by the Majority Leader who opposed those efforts. There’s no reason to expect that procedural filibustering by quorum call or any other method wouldn’t be countered by other procedures.

Howabout if all 60 Democrats and one Republican are in the chamber, can that one Republican still insist on quorum call after quorum call? And how would that work? After the presiding officer finishes calling roll, does that one Republican immediately just ask for another quorum call?

If cloture has been voted on and approved, then no, the one senator could not do that. Dilatory motions are not permitted under cloture.

If the Senate is not under cloture, then it is possible that that could be done, though not as described. After a quorum is established, the Senate must transact some type of business before another quorum call can be asked for… and the definition of “business” is pretty broad, but not unlimited.

Seems like eventually there would be some point at which it would be clear to any sane, rational individual, that a repeated quorum call would not result in a different outcome, and that the senator calling for it is either in contempt of the proceedings or is bereft of his mental faculties.