Filibusters and Cloture

And why the Senate majority can't force a talking filibuster

Before we dive into Senate Democrats’ deployment of the filibuster in 2003 against Miguel Estrada’s D.C. Circuit nomination, it’s useful to lay some groundwork.

I’m going to discuss the filibuster and cloture generally in this post. In my next post, I will address the state of the judicial filibuster—the use, that is, of the filibuster against judicial nominees—at the outset of 2003.

* * *

The word filibuster does not appear in the Senate’s rules and does not have a strict technical meaning. It evidently derives from a Dutch word for “freebooter” and from the Spanish filibusteros—terms used to refer to pirates who took loot—and began being used in this country in the mid-19th century to refer to the pirating of legislative proceedings.

As parliamentary expert Martin B. Gold and Dimple Gupta explain, the Senate generally

operates on the principle of unfettered debate. In fact, for 111 years [1806 to 1917], the Senate rules provided no limit on debate. A Senator could speak for as long as he wished on nearly any topic he chose, and the majority had no recourse to stop him.

In what we think of as the classic form of filibuster—talking without end and refusing to yield the floor to other senators—a senator could “delay Senate business in order to prevent legislation from ever coming to a vote, or to convince unwilling Senators to vote for amendments as a price for ending the filibuster and preserving time for debate on other bills they deem more important.” (I continue to draw here and in the following paragraphs on Gold and Gupta.)

At various times during the 19th century, the practice of filibustering legislation triggered efforts to establish a method of cloture—a way to cut off a talking filibuster and bring a matter to a vote. In 1917, the Senate finally adopted its first cloture rule. Under that rule, a cloture motion signed by 16 senators with respect to a “pending measure” would be voted on at a set time—irrespective whether the senator then speaking wanted to yield the floor—and an affirmative vote of two-thirds of senators voting would bring the debate on the pending measure to an imminent close and to a vote.

Thirty years later (and here we’re really getting into the weeds), a dispute arose over whether the cloture rule’s linkage to a “pending measure” meant that cloture was available only on the bill or amendment itself and not on motions to proceed to the consideration of the legislation (in which case motions to proceed could be filibustered). To make a longer story (Gold & Gupta, pp. 227-230) short, the Senate in 1949 ended up amending its cloture rule to provide that it applied expansively to “any measure, motion, or other matter pending before the Senate.” At the same time, it changed the denominator for the two-thirds threshold for an affirmative vote from senators voting to all senators (whether or not they voted).

For our purposes, what is most significant about the 1949 cloture revision is, as Gold and Gupta observe, that nominations “were swept into the rule” (within the umbrella term “other matter pending”), “but only by happenstance”: “The Senate debates include not a single mention of filibusters of nominations, likely because the concept was so alien to the Senate of 1949.”

Under the Senate’s current cloture rule (Rule XXII.2, as last revised in in 1975), the number of affirmative votes needed to adopt a cloture motion is three-fifths of all senators. That means 60 votes when all 100 Senate seats are filled (and also 60 when there is one vacancy). So a failure to vote (because, say, a senator is out of town or ill) has the same effect as a no vote.

But, to jump way ahead, since November 2013, notwithstanding the text of the cloture rule, the Senate requires only a simple majority of senators voting in order to get cloture on lower-court and executive-branch nominations and, since April 2017, the same simple majority on Supreme Court nominations. (Be assured that the Senate’s momentous actions in November 2013 and April 2017 will receive thorough attention in future Confirmation Tales posts.)

* * *

I sometimes hear people ask why the Senate majority doesn’t require opponents to do the hard work of an old-fashioned talking filibuster: “Why not make them talk all night? Why not grind them into exhaustion?”

In “Mr. Smith Goes to Washington,” Senator Jefferson Smith filibusters

The basic answer is that when those trying to defeat a filibuster can’t muster the 60 votes needed for cloture, a talking filibuster would impose a wildly asymmetrical burden on them and would, in all but the most extraordinary case, be impossible to defeat.

To illustrate the point, let’s assume that there are 59 senators who want to force a talking filibuster. (Again, if there were any more than that, they could defeat the filibuster by a simple cloture vote.) In order to satisfy the Senate’s quorum rule, at least 51 of those 59 senators would need to be present on the Senate floor at all times. By contrast, the 41 filibustering senators would need to have only one senator on the floor at any particular time—to take and hold the floor when necessary and to contest the presence of a quorum. (That senator wouldn’t even count against the quorum requirement, as he wouldn’t have to respond to the quorum call.)

So if the 59 senators want to force the filibusterers to talk all night, 51 of them would have to be present on the floor all night. The 41 filibusterers, meanwhile, could have, say, six or eight of their number share the overnight duty while more than thirty of them have a nice night’s sleep.

The same massive disproportion would continue day after day. So over the course of a week (168 hours), the average senator trying to defeat the filibuster would have to be present on the Senate floor for more than 145 hours. By contrast, even if the filibusterers played it safe by having two senators present at all times, they would average barely 8 hours apiece per week. So it’s the opponents of the talking filibuster, not those doing the filibustering, who would quickly be ground into exhaustion.

As the Congressional Research Service puts it:

Given [the quorum requirement and other lesser] procedural conditions, a majority of the Senate is unlikely to extend the effort to force an opponent to remain physically present on the floor to filibuster because the cost is so great and the benefit so uncertain. The cost to the majority of requiring so many Senators to remain near the floor, away from their other legislative and representative responsibilities, and the cost of preventing the Senate from conducting any other business while it forces an opponent to conduct an overt filibuster, are very high and are nearly certain to occur. The potential benefit— that the opponents eventually tire, make some mistake, or give up their efforts, and allow a measure to come to a vote—is unlikely if more than a handful of Senators are willing to engage in such tactics.

Perhaps you can imagine a sort of reverse “Mr. Smith Goes to Washington” scenario in which the talking filibuster triggers such an intense nationwide reaction against the filibusterers that they surrender. But in the absence of any plausible reason to hope for that, it would be a gross and futile folly for senators in the majority to try to force a talking filibuster.

To state the same point another way, when a large number of senators is needed to defeat a cloture motion, that same large number of senators should easily be able to wear out the majority through a talking filibuster.

* * *

As the Congressional Research Service explains, the term filibustering can be understood broadly to include “any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote.” Further, “[i]nasmuch as filibustering does not depend on the use of any specific rules, whether a filibuster is present is always a matter of judgment.”

Filibusters and cloture motions are linked, but imperfectly. A cloture motion is the standard means by which a majority seeks to end a filibuster, and the failure of a cloture motion is ordinarily (but not always) a strong sign that the opponents of cloture aim to defeat the underlying matter being debated.

By contrast, the mere filing of a cloture motion is a weak and unreliable sign that a filibuster is underway. As CRS warns:

Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is that cloture is sought by supporters of a matter, whereas filibusters are conducted by its opponents. [P. 2 (emphasis added).]

* * *

When Senate Democrats opposed cloture on Miguel Estrada’s nomination, there would be no question that they were filibustering him—and making a stunning departure from Senate practice on lower-court nominations in doing so.