The filibuster, part 4: countermeasures

This post is part of a multi-post series on the filibuster in the U.S. Senate. An index to all other posts in the series, as well as a list of main sources that have informed this series, is included in the first post.

A filibuster can kill a bill, but often it motivates changes to it and causes a delay of its passage. So, filibusters end, but in different ways. Gregory Koger classifies the three main methods of countering the filibuster: cloture (a vote to end debate), attrition (waiting it out), and reform (changing the rules). I think there’s a fourth: concede (as in giving the opposition something it wants).

No doubt the route of concession is widely used and harder to detect. That’s exactly what Max Baucus was trying to do on the Senate Finance Committee last summer. His process of crafting a health reform bill was explicitly designed to attract the votes of Republican committee members (he got one) in order to decrease opposition and likelihood of filibuster.

These days Senate filibuster is closely associated with cloture (Senate Rule XXII), the invocation of which promises a specified degree of delay. Once a motion for cloture is presented, it is not voted upon for two days (the “ripening period”). Then, if passed (requiring 60 votes), it allows for 30 hours of debate on the bill to which it pertains. However, cloture is not employed only to counter a filibuster, but also as a tool to manage the Senate’s schedule and amendments process (more on this later in the series). Hence, a cloture motion cannot be taken as an indicator of the presence or absence of a filibuster.

Opposing a filibuster by attrition was more common before the 1970s. (An amusing historical fact: the longest single speech was made by Sen. Strom Thurmond of South Carolina on Aug. 28-29, 1957, lasting just over 24 hours.) More recently Mr. Smith Goes to Washington force-them-to-speak style filibuster opposition has been superseded by other countermeasures. Reasons were covered in the second post of the series. Attrition is just too disruptive to Senators’ schedules. Moreover, it provides the opposition an opportunity to create a spectacle, which is often what it seeks. Interestingly, however, Republicans backed down in response to the Democratic threat of opposition by attrition during the April 2010 debate over financial regulation reform.

Efforts to reform the rules that shape or limit filibuster are rare. One notable reform is the budget reconciliation process, included in The Congressional Budget Act of 1974. Budget reconciliation can be used to obviate the need for a cloture vote, but the purpose for which it is used must be anticipated in the budget resolution bill that Congress passes early in the year. The Center on Budget and Policy Priorities explains,

[A] reconciliation directive [included in the budget resolution] instructs a committee to produce legislation by a specific date that meets certain spending or tax targets. … The Budget Committee then packages all of these bills together into one [budget reconciliation] bill that goes to the floor for an up-or-down vote, with only limited opportunity for amendment.

Budget reconciliation was the legislative procedure used to amend the Affordable Care Act and, therefore, received a lot of attention. One of its peculiarities is the requirement that budget reconciliation provisions directly affect federal revenue or else they are ruled out of order (the so-called Byrd rule, first introduced in 1985). Reconciliation has been employed for major legislation, including that pertaining to health care, for decades.

The next post in the series will present current proposals to reform the filibuster.

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