Senate Procedure: The Filibuster and More

Procedure in the U.S. Senate is a complicated subject. Yet, several aspects of it have been in the news lately because of the nomination of Judge Neil Gorsuch to be the next associate justice of the Supreme Court. Democrats in the Senate tried to prevent the Senate from confirming Gorsuch by filibustering his nomination. In response, Senate Republicans used a technical procedure called the nuclear option to invoke cloture and defeat the Democrats’ filibuster. Let’s take a closer look at what all this means.

Filibuster

A filibuster can take many forms, but when most people think of a filibuster, they probably imagine a lone senator keeping command of the Senate floor by talking for hours on end. This tactic was memorably depicted by Jimmy Stewart in the 1939 film, Mr. Smith Goes to Washington. But today, a filibuster is usually much less dramatic than that. As long as some senators refuse to allow a vote on a bill or nomination, the Senate must first take a vote about whether it should vote on the bill or nomination. (See? Senate procedure is complicated!) If enough senators vote no, they can prevent a vote indefinitely, unless enough senators on the other side invoke cloture.

Cloture

To end a filibuster, 16 senators can team up to file a cloture petition with the Senate clerk. Two days after the petition is filed, it becomes “ripe” and can be voted on. How many senators it takes to invoke cloture depends on the matter up for a vote. If it’s legislation, it takes the affirmative vote of at least 60 senators to invoke cloture. But for nominations, only 51 votes are required. After cloture is invoked in this way, senators can only debate the issue for 30 more hours. Once that 30 hours expires, they’ll have to take a vote.

The Nuclear Option

The nuclear option is a tactic that is rooted in the constitutional power of a simple majority in the Senate (i.e., 51 senators) to change Senate rules. The nuclear option has been used twice in recent history. The first time was in 2013. Before then, invoking cloture on a lower-court or executive nomination required 60 votes, just like it still does for legislation. But in November 2013, Democrats in the Senate used the nuclear option to change that requirement to 51 votes. The second time was this year, when Republicans in the Senate used the same approach to change the required cloture vote for Supreme Court nominations. Now, cloture can be invoked on any nomination if 51 senators vote for it. Thanks to the increasing partisanship among senators, it may be only a matter of time before a Republican or Democratic majority decides to use the nuclear option to change the required cloture vote for legislation, too. But for now it remains fixed at 60.

Of course, Senate procedure is even more complicated than this brief blog post lets on. Really, we’ve only scratched the surface. But hopefully you now have a better understanding of this little slice of procedure in the Senate that’s been so prominent in the news lately.