Understanding Our Constitution - Part 28 - A Filibuster

A fililbuster, or “speaking or talking out a bill” is a form of obstruction in a legislative body - where an attempt is made to delay or entirely prevent a vote by extending a debate on that proposal.

The term filibuster was first used in 1851, It was derived from the Spanish “filibustero” meaning pirate or freebooter - as filibustering was seen as a tactic for pirating or hijacking debate.

The tactic is usually employed by a group that does not have enough votes to defeat a bill. Filibustering is possible in the US Senate because Senate rules allow unlimited debate on a bill. The speech does not have to be related to the bill under discussion.

Three-fifths of the Senate - 60 Senators - can bring debate to a close by invoking cloture. Holding around the clock sessions - to tire the speakers - is another tactic used to defeat filibusters. A filibuster can be defeated by the majority if they leave the debated issue on the agenda indefinitely, without adding anything else.

According to the Supreme Court ruling in US v Ballin (1892), changes to Senate rules can be achieved by a simple majority:

“The constitution empowers each house to determine its rules of proceedings...The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house...”

Currently, Senate rules state that 67 votes are required for future rule changes.

Senate Rule 22 permits filibusters in which actual continuous floor speeches are not required. The Senate Majority Leader may require an actual traditional filibuster if he/she so chooses.

Budget bills are governed under special rules called “reconciliation” which do not allow filibusters. Before 1996, it only applied to bills that would reduce the budget deficit, but is now used for all matters related to budget issues.

Usually proposals for Constitutional Amendments are not filibustered. This is because a two-thirds majority is needed to pass the proposal - which is more that the three-fifths majority needed to invoke cloture. If there are not 60 votes to stop the filibuster, it would be impossible to get the required 67 votes to pass the amendment.

Another favorite device of filibustering senators is simply to absent themselves from the chamber. If the minority party does not answer quorum calls, then the majority has to stay near the chamber at all times, day or night, to establish a quorum and keep business moving.

The Senate majority leader may order the Sergeant-at-Arms to arrest absent senators. They would then go to the senators' offices and homes and accompany them to the chamber. On some occasions, they have even physically carried senators in the door.

Even if a filibuster attempt is unsuccessful, the process takes valuable floor time. In recent years, when a filibuster is threatened and attempts to achieve cloture have failed, the majority has preferred to avoid filibusters by moving to other business.