When can you filibuster

A filibuster can only be stopped if a supermajority of 60 senators vote to end debate in a process called cloture. With just 50 senators, Democrats are currently not able to overcome filibusters unless at least 10 Republicans vote with them. But the rules limit the use of that process.

Senate Minority Leader Mitch McConnell has blocked a vote to lift the debt ceiling, raising the risk of a catastrophic default. That changed the stakes for Biden. Although the U. Constitution makes no mention of filibusters, long-winded Senate speeches became an increasingly common tactic in the 19th century. By most senators had had enough, agreeing that a vote by a two-thirds majority could end debate.

But getting two-thirds of the Senate was hard, so filibusters continued. Notoriously, they were used by southern senators who sought to block civil rights laws. In , the Senate reduced the requirement for limiting debate to three-fifths of the Senate - currently 60 senators. In that decade, the Senate leadership began agreeing to allow measures that were facing a filibuster to be put aside while the chamber acted on other bills.

The move was intended to prevent opposition to a single bill bringing all work in the chamber to halt, but it also meant that the filibuster changed from an energy-draining maneuver involving lengthy speeches to a mere objection, or threat to object. The move was intended to prevent opposition to a single bill bringing all work in the Senate to halt, but it also meant that the filibuster changed from an energy-draining maneuver involving lengthy speeches to a mere objection, or threat to object.

Over time the number of filibusters skyrocketed. There is no sure-fire way of counting how many bills are filibustered in a year because of the nebulous nature of the threats.

But a count of votes to try to overcome a filibuster, the nearest reliable proxy, shows such votes in the legislative session. In there were six. There have already been changes, in addition to changing the number of votes required for cloture. In , Democrats removed the vote threshold for voting on most nominees for administration jobs, apart from the Supreme Court, allowing them to advance on a simple majority vote.

In , Republicans did the same thing for Supreme Court nominees. Recently some centrist Democrats have joined ranks with liberals including Senator Jeff Merkley, who has long favored reforming the vote threshold for legislation. McConnell, for one. They write, [12] [22] [23]. The adoption of two tracks 'changed the game profoundly. There have been nearly twice as many Senate actions to defeat filibusters The number of motions to defeat filibusters from the rd Congress to through the th was ; the number from the 65th through the nd was That the number exploded after the two-track system was adopted is not coincidental.

The system of stealth filibustering 'allows [senators] to obstruct Senate business but without paying much, if any, political cost for doing so. The nuclear option, also known as the constitutional option, is a procedure that allows the majority party to change a Senate rule or precedent with a simple majority vote. Normally, the Senate needs a two-thirds vote to invoke cloture on a resolution to change its standing rules.

Walsh D-Mont. Trent Lott R. First, changing the Senate rules breaks longstanding precedent. Also, the Republicans — and the Democrats previously — know that when the majority party becomes the minority party, as inevitably happens, that party would be stripped of most of its leverage, thanks to its own rule change. Members of the Senate have threatened to use the nuclear option on multiple occasions, but it was not used until November when Senate Majority Leader Harry Reid D-Nev.

Supreme Court. The option was used to change the vote requirement for executive nominee confirmations to be considered on the floor. Prior to the rule change, senators could filibuster until a cloture motion requiring 60 votes was passed in the chamber. The nuclear option changed the requirement to a simple majority. The threat of the nuclear option occurred in many previous sessions of Congress, but none had invoked the procedure. The nuclear option was invoked in response to Senate Republicans blocking the nomination of three D.

Circuit Court judges. The rule change passed by a vote of , with Carl Levin , Joe Manchin and Mark Pryor being the only Democrats to vote in opposition. According to the Congressional Research Service , of the 67 times between and that the filibuster was used on a judicial nominee, 31 were during the Obama administration. On April 3, , Senate Democrats announced that they had a sufficient number of votes to sustain a filibuster against the nomination of Judge Neil Gorsuch to the U.

Essentially, McConnell said that Republicans would change the rules to allow a Supreme Court nominee to be confirmed with 51 votes instead of On April 6, , the Senate failed to invoke cloture on a Gorsuch's nomination. McConnell then raised a point of order that the cloture vote should be upheld under the precedent established in and applied to all nominations. That precedent called for a simple majority vote to close debate on all nominations.

That point of order was denied. McConnell appealed the ruling of the chair. The question was whether to retain the vote threshold for ending debate on Supreme Court nominations. A majority along party lines voted against retaining the vote threshold to end debate on Supreme Court nominations, opting instead for a simple majority being required to end debate—the nuclear option. Under the new threshold, the Senate subsequently voted to end debate on Gorsuch's nomination. Gorsuch was confirmed to the U.

Supreme Court the next day. On April 3, , the Senate voted to change the body's precedent and reduce post-cloture debate allowed on executive nominees below the Cabinet-level and federal district court nominees from 30 hours to 2 hours.

Two separate votes on executive nominees and judicial nominees passed To enact the changes, the Senate used the nuclear option rather than changing its standing rules. It is a new departure from that tradition.

And this break with tradition is hurting the Senate, hamstringing our duly elected president, and denying citizens the government they elected. Senate Democrats also said McConnell pursued similar tactics while in the minority. Michael Bennet D-Colo. And that was the blockade of Merrick Garland … it was shameful. McConnell responded by criticizing Senate Democrats for using the nuclear option to lower the cloture threshold from 60 votes to 51 votes in And I thought maybe the other side would rue the day they did it.

On April 5, , Ballotpedia released an analysis of the changes in debate rules and the possible effects on federal judicial vacancies.

To see our full analysis, click here. Below are two data tables presented to show the frequency with which the Senate has taken action on cloture. The data are sorted into the number of motions filed for cloture, the number of votes on cloture held, and the number of times that cloture was invoked, meaning that 60 senators agreed to pass the cloture motion and end debate, effectively killing an ongoing filibuster.

The Senate adopted rules for cloture beginning in The data in this chart below show Senate actions on cloture from the first Congress in which the cloture rule was adopted the 65th Congress to the most recently completed Congress the th Congress.

All data are taken from the U. Senate website. This line chart depicts the same data above. Consistent with the changes made by Senator Mansfield described above, Senate actions on cloture have increased significantly since the s, indicating that the attendant use of the filibuster has increased during that time. There are some who argue that, in an effort to circumvent the usage of the filibuster, an increasing preference is being given to the process of using budget reconciliation.

They write, "in contrast to ordinary bills, which are subject to a filibuster that requires 60 votes to overcome through cloture, debate on reconciliation bills in the Senate is limited to twenty hours. We maintain that it is no coincidence that reconciliation emerged as a majoritarian alternative to the filibuster during the exact time period when the filibuster became most prevalent. Budget reconciliation was created by the Congressional Budget Act of Under the act, reconciliation can be used on legislation that changes the federal debt limit, revenue, or spending.

As it relates to spending, reconciliation can be used to consider changes in spending on entitlement programs with the exception of Social Security. Because appropriations under mandatory spending are typically codified, amendments to those laws are often required. Reconciliation has not been used to change 'discretionary' spending because the process to modify discretionary spending is typically addressed through the annual budgetary process.

For reconciliation measures to be considered by the Congress, both chambers must agree on a budget resolution. This resolution must include resolution instructions.