How can McCarthy filibuster in the House?

Kevin McCarthy somehow managed to perform a talking filibuster against the Build Back Better act in the House last night. How was he allowed to do that since the House has never had a filibuster?

You’re right, there is no true filibuster in the House, but apparently there is an exception for the leader of each party (Majority Leader, Minority Leader, and Speaker of the House), who is allowed to speak for as long as he or she wants. This is, as I understand it, called the “magic minutes” or “leadership minutes.”

A big difference between that, and the Senate’s filibuster, appears to be that it can only last for as long as that leader is able to and willing to continue to speak.

I seem to recall that you had to have someone speaking to maintain a filibuster in the Senate. How did they change that?

I believe the rules didn’t change, it’s just that the majority party never forces someone to actually stand and talk. They just agree that something is not going to pass a cloture vote and don’t bring it to one.

My understanding (possibly flawed) is that, at some point, between the 1950s (when there were some epically long filibuster speeches) and the past decade, the Senate changed their rules around filibusters, and it simply requires that cloture vote to invoke, and effectively block any legislation, without the need for actually conducting a speech to stop the Senate’s business.

And, like many of the Senate’s rules, it’s something that could be changed again, by a vote. That’s the “nuclear option” that gets discussed – it would only take a simple majority to remove the filibuster option entirely, but with the Senate’s current make-up, this would require every Democrat to vote for it, and my understanding is that Manchin (and maybe Sinema, too) have said that they would not vote for it.

Yes, this is simply a custom of the House and one that has been used by both parties on occasion. Nancy Pelosi herself utilized the same tactic in 2018 when she was Minority Leader.

And in fact held the record at over eight hours until McCarthy broke it.

Did she read the phone book, or recite Shakespeare?

I hear this repeated, but it just isn’t true. The Senate could require talk-a-thons but they don’t for practical reasons. If a side cannot get 60 votes for cloture, then at least 41 Senators are willing to filibuster. That means (spitballing here) that even if they hold the Senate in session 24/7, a filibustering Senator only needs to speak for about 1 hour every 2 days, or 2 hours in 4 days. Plus they can insist on a quorum so at least ten of the supporters must be present at all times.

As the filibustering Senators could easily last forever, and business of the Senate will come to a halt, why mandate that the talking continue when nothing will change and it will be inconvenient for everyone? Just withdraw the bill and move to something that can get the votes.

Because the purpose of the filibuster is to force discussion of the bill before passing. And because the more work you have to put in, the less likely you are to do it.

It’s supposed to be inconvenient. It’s supposed to take effort to do, and it’s supposed to slow everything down so people will inevitably vote for cloture so that they can move on and get things done.

I see no reason to make it easy on the filibusters. Make 'em stand and talk ala Mr. Smith Goes to Washington.

The minority doesn’t care if nothing gets done. In the current Senate, the GOP would be glad to run the clock until after 2022 and hope they take it back. Letting a filibuster go on and on would just play into their hands.

Jefferson Smith was a single Senator against all of the others. In a failed cloture vote, there are at least 41 Senators who can speak. With that many, you don’t need to have one guy talking until he collapses. It is trivially easy to see how 41 people can rotate and speak indefinitely.

Are you sure? The votemaster talks about reviving the talking filibuster as though it would require Manchin and Sinema to agree.

I found this article about the talking filibuster, which points to this article about the 1975 change in Senate rules as the beginning of the end, but that was just switching from requiring a 2/3rds vote for cloture to 60 votes.

As far as I can tell all the suggestions for a “talking” filibuster are just pining for a time (that may or may not exist) when the Senate had more class and party discipline was weaker and Senate culture would let one isolated Senator (rather than a voting block of 41-50) block something he really truly felt strongly enough about (like civil rights) to stand there and blather on for hours.

I believe this is correct too. The majority party could force the the minority party to hold the floor and bring all Senate business to a standstill at any time. They don’t do so because that would be counter the majority party’s interest, which is to at least pass something while they have the majority.

The difference between the talking filibuster and what we have today is tactics and culture, not Senate rules.

Ok, I read those articles more completely and they say that the real change that did away with the talking filibuster was that the Senate could have multiple bills in consideration on the floor at at time (up from one), so business on other things can proceed while some are “being debated” (not being debated).

But that doesn’t strike me as something that requires a rule change to fix either. The majority party decides what is pending, so they could just… not move past the “filibustered” bill and require talking.

But they don’t because it is not in their interests to do so.

Because a Senator who is on the floor speaking isn’t meeting with donors. A Senator who is on the floor speaking isn’t working the cameras for more money. A Senator who is on the floor speaking has been forced to make a real choice in their lives and in their constituents lives in how they are going to spend their limited time and political capital.

By removing that requirement, it just allowed Senators to do two things at once; to have their cake and eat it too.