By Paige Scobee
Throughout U.S. history, senators wanting to delay action on legislation have resorted to hours-long debates through a tactical move called the filibuster.
The first filibuster in the U.S. Senate occurred in 1841 and the maneuver became increasingly common throughout the 20th century, but its future is uncertain as lawmakers and constituents alike question its effectiveness and efficiency.
The “filibuster” (from a Dutch word meaning “pirate”) is a stalling technique, often used by the minority party to take over the floor and delay or block a vote on a particular bill. While the House limited the length of debate in 1842, the Senate has unlimited debate, allowing senators to take the floor for as long as they deem necessary on any issue.
This June, Senator Chris Murphy (D-Conn.) took the floor in an almost 15-hour-long speech, taking ninth place on the list of longest filibusters. The late Senator Strom Thurmond of South Carolina set the record for longest filibuster when he spoke for 24 hours and 18 minutes against the Civil Rights Act of 1957.
For a senator to hold the floor, he or she must continuously remain standing and speaking. However, a senator may yield to a colleague for a question, so fellow senators will often ask prolonged questions to relieve the filibusterer for a few minutes.
The only way to stop a filibuster is through a procedure called cloture, which requires a three-fifths majority vote. Sixteen senators must initiate the motion to end the filibuster. The vote then occurs the second day after the motion is made, giving senators a maximum of 30 additional hours to speak and consider the bill.
As even the threat of a filibuster can be a powerful tool in preventing the consideration and passage of legislation, filibusters have become more and more rare. The majority leader may simply decide not to call a bill to the floor for consideration, or a bill’s proponents may accept changes from their opponents to avoid a filibuster.
As a general rule, states do not use stalling tactics like the filibuster. Approximately 10 states have a cloture rule that requires more than a simple majority. However, in March, Missouri Democrats led a record-setting 39-hour filibuster to block the passage of a religious protections amendment on a same-sex marriage bill. Meghan Reilly, a legislative analyst for the Connecticut General Assembly, created this table comparing state filibuster rules, based on NCSL data.
Some U.S. senators are pushing to eliminate the congressional filibuster altogether. Republicans and Democrats alike complain that the time wasted by such tactical measures contributes to the growing dysfunctionality of the Senate. House members have also expressed frustration that filibusters prevent their bills from moving through the Senate.
However, Senate rules are not so easy to change. An attempt to eliminate the filibuster would need votes of a two-thirds majority to prevail, and the minority is often strongly opposed to giving up one of their few power moves on the floor. Some majority members also remain hesitant to take away these minority rights, wary that they might return to the minority in the next election. Senators have also cited the dangers of changing fundamental Senate procedures and claim that changes in senators’ attitude and behavior would be more successful in increasing productivity and compromise in the chamber.
Changing filibuster rules is challenging and rare. The last change occurred in 2013 when the then-Majority Leader Harry Reid (D-Nev.), invoked the “nuclear option,” which changed the rules to require only a simple majority vote to eliminate filibusters for executive branch and judicial nominations, except for U.S. Supreme Court nominations.
Last fall, Majority Leader Mitch McConnell (R-Ky.) hoped to pass all 12 appropriations bills through regular order. To speed up the process, he set up a task force to explore ending filibusters on appropriations bills, but the committee has since made little progress.
With the 2016 election leaving control of the chamber up for grabs, Republicans are not likely to make any more moves to end the filibuster this term. As the public and members of Congress grow more and more frustrated with the unproductivity of Congress, only time will tell whether the Senate decides the filibuster tool is worth keeping.
Paige Scobee is an intern in NCSL’s Washington, D.C., office.