The United States Senate is possibly the most recognizable legislative body in the world, known for its members which are held in high esteem around the globe. The Senate is known as a stepping stone to the Presidency of the United States of America. Some of its most famous members are public figures that will grace the pages of history books for centuries to come. However, for all the star power that the Senate is able to amass, they often fall short of the publicity created by the Senate’s most prominent star: the filibuster. Unlike the House of Representatives – which is bound by volumes of procedures, rules, norms and majority rule – the Senate is governed by rules that could be printed on approximately 78 pages. (Palmer 1) The Senate’s most prominent features are defined more by what the rules do not say than what they expressly outline. According to Senate Rule XIX: “When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer.” This rule lends itself effectively to the Senate’s most famous tradition, unlimited debate. Under the provisions of Rule XIX, a Senator can speak as long as they wish unless the Senate is under special limits. It is difficult to force a Senator to cede the floor, or even interrupt them without their consent. (Beth & Bach 3) This lack of wording creates the loophole through which the filibuster can be exploited. Through the proper use of parliamentary tactics, party strategy and individual stamina, a group of Senators can hold the floor hostage for hours or days. A panel from the
American Enterprise Institute. discusses the filibuster.

Some may be wondering how you stop this endless debate. Does the Senate just go on forever? The answer is no. The Senate adopted means to close off debate and bring the chamber back to the tasks that are before it. Minority power is an extremely important ideal in the upper chamber, the ability of a small amount of Senators to seize the operations of the Senate from the majority is one of the defining differences between the House and Senate. While the minority does have more clout in the Senate, the majority can step in and take full control if they have the votes necessary to do so. The Senate adopted Rule XXII, the Cloture Motion, to facilitate the closing of debate. While invoking cloture does not mean debate has stopped, it is limited to a set amount of time, usually thirty hours. In order to invoke cloture, sixteen Senators must sign a Cloture motion and present it to the presiding officer while the bill or amendment to which it applies is being debated on the floor. (Oleszek 240) This is one of the only circumstances in which a Senator may be cut off during debate. From then on, the bill has two more days for amendments before the cloture vote is held. However, it must be noted that a cloture motion may not pass with a simple majority. Unlike most motions in the chamber, this motion must pass with a “super-majority” of sixty votes. The creation of the “super-majority” can sometimes be difficult if the majority party does not reach that number on its own. These leave open the possibility of compromise – which will be discussed more later – or the complete collapse of the measure. Following the confirmation of a cloture vote, debate on the measure is limited to thirty hours and debate must be germane. In order to further limit the power of the filibustering Senators, each senator is limited to only one hour of floor time during the thirty hours of cloture debate time. (Oleszek 243)



Rule XXII has become one of the most important rules of the Senate, possibly more recognizable than Rule XIX. The ability to invoke cloture is extremely useful to the majority party in the Senate. While the cloture motion is an extremely important means by which to bring debate to a close, it should be noted that it is not the only course of action to stop debate. Like all political processes, the Senate is not immune to compromise and deal making. Depending on the importance of the measure that is being filibustered and the partisan make up of the chamber, compromise can sometimes be an efficient means to bring a filibuster to an end. Generally these deals are struck behind closed doors and may contain promises to eliminate key parts of the legislation. If a deal cannot be reached, the filibustering Senators have come that much closer to killing the legislation. (Oleszek 240) On the level, the advent of the Cloture Motion has transformed the way the Senate operates. No longer can the minority completely dominate the floor of the Senate without as method by which the majority can regain control. The effects of Rule XXII will be discussed more later, for Senators are no longer using it to just stop endless debate on the floor.
On occasion, situations will arise that cause Senators to attempt to change the structure of Rule XXII. Such a circumstance occurred during 2005. President Bush was in the process of nominating a series of justices for various courts around the nation. These nominations met a fury of filibusters from the Democrat minority in the Senate. Majority leader Bill Frist was growing frustrated with the slow process of the confirmations. Many Republican leaders felt that the dilatory tactics of the Democrats had little to do with the nominees themselves, but rather with partisan differences. This period of filibustering gave rise to a new loophole that could be exploited if dire circumstances arose. This new option came to be known as the “nuclear option.” This tactic would allow the majority party to circumvent the filibustering of federal judicial nominations. The parliamentary procedure employed is beautiful for its simplicity and effectiveness. The process would call for Senator Frist to make a point of order that continued debate on the judicial nominee is dilatory and out of order. The president of the Senate would sustain the point of order, thereby effectively circumventing Rule XXII. The Democrats would have likely challenged the decision, and Frist would motion to table the appeal. If the motion to table had been successful, the Republicans would have established a new method to circumvent Rule XXII on judicial nominations. (Oleszek 244) The term “nuclear option” was coined by Senator Trent Lott, while other conservatives have referred to it as the “constitutional option.” The term constitutional option is more effective at deriving the roots of this method. It is not entirely a parliamentary loophole; it does have a foundation in the Constitution. Republicans claim a filibuster on judicial nominations runs contrary to what the Constitution expressly states about the confirmation of justices. Article II, Section 2 of the Constitution states that, “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other officers of the United States.” This implies that only a simple majority of the Senate is required to approve a justice, where invoking cloture requires a “super-majority.” The requirement of a “super-majority” is contrary to the Constitution, according to certain members of the Senate. The “nuclear trigger” has never been pulled, so the effectiveness of this strategy cannot be established, to date. By even advocating this sort of method, a fire storm of controversy and debate was sparked on Capitol Hill between the GOP and Democrats. Democrats threatened to grind to Senate to a halt on even the most mundane issues of the GOP ever pulled the trigger on their new found method. (Oleszek 245)


Eventually, both sides were able to reach a compromise that was known as the “Gang of Fourteen.” As the name implies the deal was between fourteen Senators, seven Republican and seven Democrats. GOP members of the gang would not support the nuclear option and the Democrat half would no support continued filibusters of judicial nominees. The invention of the “nuclear option” is much like the invention of nuclear weapons; the repercussions of pulling the trigger would be staggering on the legislative process. Both parties would feel the pressure from its use for decades to come. However, the advent of such a tactic is another way of showing just how unique the Senate is.
While the Senate has its share of famous filibusters – the Civil Rights Legislation and Justice Nominations of President Bush – most filibusters are not nearly as public or long winded. It is much more common for a filibuster to last hours or just serve as a means to slow debate on a piece of legislation for party purposes. There is no definitive way to show the exact number of filibusters, for no exact method exists to track or monitor “filibuster activities.” However, there exists an indirect method of tracking the number of filibusters: the number of cloture motions that are presented before the body. Over the years the filibusters have been steadily rising to reach a current average of 17.6 session. (Oleszek 238) However, as mentioned earlier the cloture motion is no longer just used to bring debate to a close in the Senate. The cloture motion at times has been morphed into a completely different parliamentary tool. Majority leaders have started to file cloture motions on bills as soon as they reach the floor to give more time to other legislation and also provide a timetable for debate on the clotured bill. It also limits the number of amendments that can be attached to the bill. Minority leaders have also begun to file cloture motions to force a vote on politically potent measures. Minority leader Reid used such tactics during the Bush presidency. Thus, using the cloture vote as a method to track filibusters can be ineffective. During the 107th Congress, there was a high water mark of 61 cloture motions filed. (Oleszek 243) This expanded use of the cloture motion has drawn criticism from both parties. While the methods of the cloture motion and filibusters themselves are heavily debated, they are not likely to change any time soon, for both parties use them to their advantage far too often.
The filibuster has become a staple on Capitol Hill, even the mention of a talkathon gets the attention of media outlets all around the world. While we no longer see the record breaking filibusters similar to the 1960’s, where Senator Strom Thurmond once spoke for 24 hours and 8 minutes, we have seen a marked increase in filibusters per session. What causes this? Is it our highly divided political scene where bipartisanship is frowned upon? Or is it simply the result of greater workload and more legislation? Whatever the answer, the filibuster shall remain a singularity on the Hill. It shall also continue to attract debate and controversy as the stakes on the Hill rise and the filibuster is used in new and more controversial ways. Until then, we should enjoy the action in all its glory and appreciate the beauty of our legislative process at work.



Bibliography
Beth, Richard and Bach, Stanley. “Filibusters and Cloture in the Senate”. Congressional Research Service. March 28,2003. Accessed April 13,2010.

Oleszek, Walter J. Congressional Procedures and the Policy Process. CQ Press. 2007.

Palmer, Betsy. “Changing Senate Rules: The ‘Constitutional’ or ‘Nuclear’ option”. Congressional Research Service. April 5, 2005. Accessed April 13, 2010.