Filibusters
What is a filibuster?
What are its rules and the consequences of its use?
A filibuster1 is a tactic available to any Senator or group of Senators who wish to slow a bill’s passage, or to prevent it from receiving a floor vote by the entire Senate, thereby killing it. The filibuster does not appear in the Constitution; rather it flows from the nature of the Senate itself.2 The Framers intentionally designed the Senate to be the more deliberative chamber of the legislature. Because it is the smaller body (only 100 members today), it has less need for many procedural rules to regulate discussions. Its members serve six-year terms, giving them greater job security and insulating them from public pressure, which affords them time to delve more widely and deeply into the issues that come before Congress.3 In the Senate’s earliest days, it was assumed that Senators could speak without any time limit or until a motion to end debate was passed by a simple majority vote. In 1806, Vice President Aaron Burr argued that the tradition to end debate by a vote was unnecessary, and the Senate stopped the practice of voting to halt debate. Thus, the Senate floor became open to unlimited debate. In 1917, President Wilson’s bill to arm US commercial ships against attacks by German warships was filibustered by Republican isolationists. Wilson pressed his party’s Senators to adopt a rule to end filibusters, which they did. Senate Rule XXII established that debate must end when two-thirds of the Senators (67) voted on a motion to do so. The motion, called a cloture (also spelled closure) petition, is similar to “calling the question.” (Details on the cloture process appear below). The percentage was lowered to three-fifths of the Senate (60) in 1975.
Originally, anything before the Senate could be and was filibustered: bills, executive appointments, treaties, and judicial appointments. Over time, however, exceptions were created.4 For example, in the 1970s, budget reconciliation bills, an important step in funding the federal government, were made off-limits to filibusters. In the 1990s, as Congress moved to close and consolidate military installations in the US using recommendations from the Base Realignment and Closure Commission (BRAC), filibusters were made unavailable to those opposing the closures. In 2013, Democrats used the nuclear option4 to ban filibusters of executive branch appointments and non-Supreme Court judges. Republicans extended the ban to Supreme Court nominees in 2017.
There are two types of filibusters: the talking filibuster and the
silent filibuster. The talking filibuster is what a typical
American probably thinks of, but it has been rarely used. In
a talking filibuster, one Senator gains recognition to speak by the
presiding officer and holds the floor for as long as
possible. While engaged in a filibuster, the Senator may
not leave the floor, eat, drink or lean against a chair or
desk.5 The Senator should
speak about the bill on the floor or subjects related to it, but
filibustering Senators have read from the Constitution,
newspapers, and even Dr. Seuss’
Green Eggs and Ham.6
The Senator may entertain questions from other Senators, but only
the filibusterer may recognize another member to speak. If
one or more other Senators participate in a filibuster, the person
speaking may recognize a collaborator, who can then speak at length
while the first speaker leaves the floor to eat, drink, sleep or use
the restroom, not unlike tag-team wrestling.
Another ploy available to the filibustering Senator is to make a
motion to adjourn the Senate until a day and time specified by the
Senator. If a quorum (51 Senators) is not present, the
motion carries, hence the filibuster stops but then resumes on the
day and time chosen by the Senator, which could be days or weeks in
the future. To prevent this sequence of steps from
occurring, the majority party must assure that at least 51 of its
members are available to reach the Senate floor quickly should a
motion to adjourn be made. (The majority party has had cots
delivered to the Senate lobby where members could sleep during a
filibuster, but at least one member must be seated in the chamber as
an observer.)
Prior to the 1970s, all business on the Senate floor stopped during
a filibuster, but in the 1970s, Senate Democrats adopted a two-track
system that allowed bills and other business, but not the bill being
filibustered, to proceed. This compromise removed a bit of
the sting of a filibuster, but still effectively slowed or stopped
its targeted bill.
A silent filibuster occurs when at least 41 Senators inform the majority leader that they intend to filibuster a particular bill. Rather than permit Senate business to grind to a halt, the majority leader tables the bill until the leader can gain enough votes to successfully invoke Rule XXII — cloture. Note that no floor speeches are delivered with this type; it is essentially a form of intimidation by threatening to filibuster.
To initiate a cloture petition, 16 Senators or more must sign the petition, which is a motion to end debate on a bill, and deliver it to the Senate clerk. Once the petition is filed, the vote on it is held on the second subsequent day of the Senate calendar. Three-fifths of the Senators present and voting (60, assuming all 100 Senators are present) are required to approve cloture.7 If the cloture vote is successful, debate ends and the presiding officer is recognized to call for a vote on the bill that was filibustered.
Those who defend the use of filibusters claim that they protect the Senate’s minority party from being steamrolled by the majority — in other words, it protects the interests and rights of the minority. Filibusters can also be used to call attention to dangerous bills introduced by the majority party, which might go unnoticed by the public. Moreover, filibusters are a way to force the majority party to compromise with the minority party. The most often cited argument against filibusters is that they thwart the will of the majority, for example, in achieving civil rights legislation.8 They also contribute to gridlock and make obstructing Congress from doing its work too easy. The use of filibusters, mostly silent ones, has increased in the 21st Century.
Additional Information
For even more information, see:
- Oleszek, Walter J.; Oleszek, Mark J.; Rybicki, Elizabeth E.; and Heniff, William A. 2019. Congressional Procedures and the Policy Process, 11th edn. Washington: Congressional Quarterly Press.
- Binder, Sarah A. 2010. “The History of the Filibuster.” Brookings Institution, April 22.
- Reynolds, Molly E. 2017. Exceptions to the Rules: The Number of Filibuster Limitations in the US Senate. Washington: Brookings Institution Press.
Notes
- The word filibuster derives from the Dutch word vribuiter, which means free-booter or pirate, and the Spanish word filibustero, pirate. It found its way into the English language in the 1840s when the British described Americans who attempted to incite revolutions in their Caribbean colonies. It subsequently appeared in the US on March 6 and 12, 1841, when someone described the firing of Senate employees as a filibuster. In the 1850s, it was used in Congress to characterize lawmakers who sought to hijack the legislative process for personal benefit using unlimited debate, and by the 1850s, it became associated with the general practice of legislative obstruction. ⇧
- The larger size of the House necessitated detailed procedural rules in addition to its version of Robert’s Rules of Order. The House’s first rules were written by Thomas Jefferson and have been amended many times. Though House rules do not permit unlimited or extended debate, namely a filibuster, the minority party, if conditions favor it, may use House rules to allow it to slow House floor business to a snail’s pace, frustrating the majority party. The best time to do this is when the House votes on the “rules” under which a bill is considered on the floor. See Congressional Procedures and the Policy Process for a full explanation of this tactic. ⇧
- There is an unconfirmed anecdote that Washington viewed the Senate as the saucer to the House’s teacup. When the House, which is closer (two-year terms) and more responsive to the people’s demands, considers all types of bills, some incendiary, it is like having scalding hot tea poured into a teacup. As was the custom at the time, a person poured some of the tea into the saucer to cool before returning it to the cup. Thus, the Senate, as the saucer, cooled the heated passions of the House by taking time to leisurely discuss the bills. Madison employed a different analogy: the Senate was a “necessary fence” to restrain the “fickleness and passion” of the House and the public. He understood the Senate to be the more experienced and stable body to check the excesses of the House. ⇧
- In 2003, Majority Leader Bill Frist, Republican from Tennessee, announced that he was considering changing filibuster rules using what he called the “nuclear option” to overcome Democrats who were stalling GOP judicial nominees, but a compromise was reached with Democrats to avoid its use. Reforming the filibuster was viewed as such a dramatic change to a storied Senate tradition that it was like using a nuclear bomb to destroy it. To detonate the nuclear option, the majority leader introduces a non-debatable motion (ie, a motion that must be voted upon immediately, without discussion) to bring a bill to the floor for a vote but then raises a point of order that cloture can be invoked with a simple majority (rather than 60%). At that moment, the Senate’s presiding officer (also referred to as the chair), who could be the V.P. or a junior Senator, can agree or disagree with the point of order. The chair will most likely uphold the existing 60-vote cloture rule. The majority leader appeals the chair’s ruling, which is a non-debatable question, and a vote is taken immediately. The Senate votes to support or overturn the chair’s decision with a simple majority necessary to do so. Because the majority leader knows the votes are in the bag, the Senate overturns the chair’s ruling and proceeds to vote to change the cloture rule. ⇧ ⇧
- The record for the longest speech during a filibuster is held by Strom Thurmond, Democrat from South Carolina, arguing against the Civil Rights Act of 1957: 24 hours and 8 minutes, from August 28 to August 29, 1957. Senator Cory Booker, Democrat from New Jersey, holds the record for the longest speech at 25 hours and 5 minutes, from March 31 to April 1, 2025. He defended the First Amendment’s free speech guarantee. Note that, because he was not speaking on a bill, this was technically not a filibuster. ⇧
- On September 13, 2013, Senator Cruz spoke against the Affordable Care Act. ⇧
- Prior to changes adopted in 2013, the requirement for the cloture vote was ³⁄₅ of all Senators, ie, 60 votes. The change to “those Senators present and voting” made it somewhat easier to end debate. ⇧
- A detestable example was its use to block the passage of laws to make hanging a black person a federal crime several times during President Franklin Roosevelt’s administration. ⇧