Filibuster, Cloture and the Nuclear Option

The Filibuster

A Senator can debate an issue for as long as he or she wants. There are no time limits. But each Senator may rise to debate an issue only once.

The filibuster is a neat little procedural trick that allows the minority party in the Senate a chance to block legislation and presidential appointees even if they do not have sufficient numbers to oppose that legislation or appointment on a straight up or down vote.

While most business on the Senate floor can be passed by a simple majority vote (51 Senators), Senate rules provide that it takes a vote of 60 Senators to end debate. Therefore, the filibuster allows a minority of 41 senators to stall, and potentially to stop, the enactment of legislation or the appointment of an individual with whom they disagree.

The filibuster in modern times has most frequently been used to block presidential appointments to cabinet positions and to the judiciary. (The President appoints federal judges for the District and Circuit Courts of Appeal, as well as to the U.S. Supreme Court.)

Here’s How it Works:

Keith Hennessey, who spent 14 years in Washington, DC advising a President and two Senators on a wide range of economic policy issues, explains how filibusters work in his blog.

Essentially, a Senator who is recognized by the Presiding Officer, stands to speak–and doesn’t stop. He or she can go on as long as he or she wants, but there are a few rules, like:

  • You can’t sit down. If you do, you have yielded the floor and the Chair will recognize someone else to speak.
  • You can’t eat on the Senate floor. You can drink water or milk, nothing else.
  • You can’t leave the Senate floor, even for a bathroom break. If you do you have yielded the floor and the Chair will recognize someone else to speak.
  • You don’t have to discuss the pending question. You can talk about anything you want. You can read a book aloud if you like.
  • You can only speak once on any particular question.

The speaker can yield to questions from friendly Senators, and the asking of the question itself can consume several hours, allowing the original Senator to rest a bit. Eventually, the original Senator can yield the floor to another Senator who is friendly to his cause and so forth, thereby allowing the process to continue for hours or days.

Cloture: How to End a Filibuster

Actually, cloture can be used to end debate on anything, regardless of whether a filibuster is in progress.  The process for ending debate is called cloture. The process for a cloture vote is set forth in Senate Rule XXII, which in essence says that 16 members of the Senate may file a motion to end debate which must be approved by a 3/5 vote (60 members) of the Senate. (If the motion is for amendment of the Senate Rules a 2/3 vote (67) is required.) If the cloture vote passes, debate is ended and the matter under discussion is moved to a vote of the Senate.

But what happens when a party can’t get the 60 votes necessary to end debate? Usually nothing. Literally. The matter dies on the floor of the Senate. Unless . . . 

The Nuclear Option

In a nutshell, Wikipedia defines the nuclear option as:

“. . . a parliamentary procedure that allows the U.S. Senate to override a rule or precedent by a simple majority of 51 votes, instead of by a supermajority of 60 votes.”