The Filibuster is Not a Veto
This post originally appeared on Legislative Procedure.
The filibuster is one of the Senate’s most recognizable features. The Washington Post recently called it “the most important rule in politics.” The filibuster is important, according to the Post, because it “essentially requires 60 votes to pass legislation.” Consequently, the filibuster empowers a minority of senators to veto legislation supported by a majority. It causes gridlock on Capitol Hill by making it harder for Democrats and Republicans to compromise. Ending that gridlock requires Senate majorities to use the so-called nuclear option to abolish the filibuster.
The filibuster is also one of the Senate’s most misunderstood features. Contrary to the Washington Post’s depiction of the practice, the filibuster is not a rule, and it does not require 60 votes to pass legislation. By extension, the filibuster is not a veto. It cannot level the playing field between a minority of senators and a majority in a debate. For that reason, the filibuster cannot cause gridlock on Capitol Hill over time. And a majority of senators do not have to abolish the filibuster to overcome it. The Senate’s existing rules already empower Senate majorities to end debate and proceed to an up-or-down vote on legislation.
AN OPPORTUNITY TO DEBATE
According to the Senate, a filibuster is an “informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.” The term is presently associated with a senator’s ability to speak on the Senate floor.
An examination of how the filibuster operates in practice demonstrates why it does not empower a minority of senators to veto legislation supported by a majority. The filibuster merely gives senators the opportunity to debate legislation on the Senate floor. A minority of senators may use that opportunity to temporarily delay a majority from passing legislation because the Senate’s presiding officer cannot call a vote on a bill when a senator is speaking or seeking recognition to speak. Senate precedents stipulate, “When there is a debatable matter before the Senate and debate is not limited, a Senator who has been recognized may proceed without interruption. Under those circumstances, a Senator may keep the floor as long as he or she remains standing and continues to debate.”
When that happens, a super-majority of senators may use the cloture process spelled out in Rule XXII to end debate on legislation. First adopted in 1917, Rule XXII empowers a super-majority of senators to end the debate over the objections of a minority that would like to continue speaking on a bill on the Senate floor. Rule XXII requires three-fifths of senators duly chosen and sworn (typically 60) to vote to invoke cloture; to end debate on legislation. The rule therefore empowers a minority of senators (typically 41) to prevent the majority from ending debate on legislation over their objections.
But cloture is not the only way that Senate majorities may end debate on legislation. A majority of senators may shorten a filibuster by enforcing the Senate’s existing rules. A senator cannot use the filibuster to prevent the presiding officer from calling an up-or-down vote on legislation in perpetuity because he or she cannot speak indefinitely. When a senator is no longer able to speak on the Senate floor, he or she has no choice but to yield the floor. At that point, the presiding officer is obligated to call a vote unless another senator seeks recognition and then speaks for as long as he or she is able. When no senator seeks recognition to speak, the presiding officer must call a vote (i.e., put the question to the Senate). Senate precedents stipulate that “when a Senator yields the floor, and no other Senator seeks recognition, and there is no order of the Senate to the contrary, the Presiding Officer must put the pending question to a vote.” While the delay in the Senate’s business is proportional to the number of senators who participate in a filibuster, there is no point at which it gets delayed indefinitely. This is because individual senators can only speak for a finite period.
UNANIMOUS CONSENT VETOES
A minority of senators are only able to veto legislation supported by a majority when the majority asks for their permission to schedule a vote. A majority does so by making a unanimous consent request on the Senate floor to waive the rules and set up an up-or-down vote on legislation. In doing so, a majority of senators is giving a minority the power to determine what legislation gets a vote without having to filibuster that legislation in the first place.
Senate majorities frequently use the cloture process to schedule votes on legislation whenever a senator objects to a unanimous consent request to do so. In those instances, Senate majorities almost always file cloture at the beginning of a debate, before senators have had an opportunity to debate, or filibuster the legislation in question.
The conventional view of the filibuster distorts how it operates in practice. It suggests the filibuster is a rule that gives a minority of senators a veto over legislation supported by a majority. But in reality, the filibuster reflects the opportunity that all senators have to engage in debate on the Senate floor. When senators veto legislation, they are not filibustering it. They are instead objecting to a unanimous consent request to schedule a vote on that legislation. The majority is, in essence, giving the minority a veto whenever it asks for permission to waive the Senate’s rules and schedule a vote on legislation. The majority should not ask for the minority’s permission to schedule a vote if it does not want senators who are opposed to the legislation to say no.