Can Amendments Escape The Filibuster?

The filibuster is a procedural tactic used in the United States Senate to delay or prevent a vote on a bill, resolution, amendment, or other debatable questions. While the filibuster itself can be used to stall an amendment to a law, the rules pertaining to the filibuster state that a filibuster-proof majority is required to change it. However, there are other mechanisms by which Senate rules can be changed with a simple majority. One such mechanism is the nuclear option, where the Majority Leader proposes a point of order that goes against the rules, triggering a vote that requires only a simple majority to pass. Additionally, the silent filibuster is a custom that has been used since the 1970s, allowing the Senate to schedule multiple pieces of business and switch between them. While this doesn't eliminate the filibuster, it requires any filibuster to be an actual standing and speaking filibuster.

The filibuster's role in blocking civil rights legislation

The filibuster has been used to block civil rights legislation in the US Senate. The filibuster is a procedural tactic used to delay or prevent a vote on a bill, resolution, amendment, or other debatable questions. Traditionally, it involved long speeches in which a senator attempted to block a vote by refusing to yield the floor, but since the early 1970s, senators have been able to use a "silent" filibuster, where a group of 41 or more senators threatens a filibuster, causing the Senate majority leader to refuse to call a vote.

The filibuster has a long and complex history, dating back to the enactment of Rule XXII in 1917, which established the modern filibuster. One of its primary uses during the 20th century was to block civil rights legislation, especially during the Jim Crow era. Between 1917 and 1994, half of the measures derailed by the filibuster involved civil rights, including anti-lynching bills proposed in 1922 and 1935, the Civil Rights Act of 1957, and legislation that would have prohibited poll taxes and outlawed discrimination in employment, housing, and voting.

The Civil Rights Act of 1964, in particular, was subject to a lengthy filibuster that lasted 60 working days. Opponents of the bill, such as Senator Richard Russell of Georgia, pledged to fight it to the bitter end and used the filibuster to delay its passage. Proponents of the bill, led by Majority Leader Mike Mansfield, employed counter-strategies such as holding the Senate in round-the-clock sessions to exhaust the bill's opponents. Ultimately, the filibuster was broken, and the Civil Rights Act of 1964 was passed, marking a significant legislative achievement.

In recent years, the use of the filibuster has escalated, slowing down business in the chamber and impeding progress on critical reforms. It has been used to block voting rights legislation and other pro-democracy measures, such as the For the People Act. As a result, there have been growing calls for its elimination or reform, with advocates arguing that the protection of democracy should be exempt from filibuster rules.

The cloture rule and its exceptions

The cloture rule, also known as Rule XXII, is a procedure used in the U.S. Senate to end a filibuster and force a vote on a pending matter. Adopted in 1917, the rule initially required a two-thirds majority to end debate, with each member permitted to speak for an additional hour after invoking cloture before voting on the bill's final passage. This rule was established at a time when deliberations in the Senate had stalled, causing frustration among senators, particularly during a time of war.

In 1975, the threshold for invoking cloture was lowered to 60 votes, which has become the effective minimum for passing legislation. This change was made to address the filibuster's effectiveness in blocking civil rights legislation. More recently, in 2013, the Senate changed the rules to allow a simple majority of 51 votes to confirm federal judges, Cabinet members, and Supreme Court justices.

While the cloture rule generally requires a supermajority of 60 votes, there are several exceptions where a simple majority is sufficient. One notable exception pertains to nominations, where Senate precedent dictates that only a simple majority is needed to invoke cloture on a nominee. Additionally, certain types of legislation, such as budget resolutions and reconciliation bills, can be passed with a simple majority, bypassing the need for cloture.

Furthermore, the Senate has, at times, exempted specific legislation from the cloture rule. For example, in 2021, the Senate passed a resolution increasing the public debt limit by $2.5 trillion through a simple majority vote. Similarly, the Senate can pass a resolution to disapprove of major arms sales, limited to 10 hours of floor debate, without requiring a cloture vote.

The cloture rule remains a crucial mechanism in the Senate's parliamentary rules, providing a means to end filibusters and bring matters to a vote. However, the exceptions to this rule highlight the dynamic nature of Senate procedures and the potential for adapting rules to address specific circumstances.

The process of amending the US Constitution

There are two pathways to adding an amendment to the US Constitution. The first pathway involves the proposal and vote on a constitutional amendment by two-thirds of both the House of Representatives and the Senate. This proposal is then sent to the states for ratification, where three-fourths of the states must ratify the amendment through their legislatures or special ratifying conventions.

The second pathway begins with two-thirds of state legislatures requesting Congress to call a convention for proposing amendments. States send delegates to this convention, where they can propose amendments to the Constitution. After an amendment is approved by the convention, it is sent back to the states, where three-fourths of the states must ratify it, either through their legislatures or special ratifying conventions.

The filibuster, a procedural tactic used in the Senate, can be a significant obstacle to the process of amending laws and the US Constitution. It allows a minority of senators to delay or block a vote on legislation, confirmation, or amendment by requiring a supermajority of 60 votes to pass. While there is a cloture rule to end a filibuster, it still requires a significant number of votes, and reforms to lower this threshold have been proposed.

The filibuster has a controversial history, often being used to block civil rights and democracy reform legislation. As a result, there have been increasing calls for its elimination or reform to ensure it does not impede progress and the expansion of American democracy.

The use of amendments as a filibuster tactic

The filibuster is a procedural tactic used by Senate minorities to delay or block a vote on a piece of legislation, resolution, amendment, or other debatable questions in the U.S. Senate. It has been used throughout history to block civil rights legislation and has recently been used to impede democracy reforms. Traditionally, the Senate filibuster was reserved for only the most controversial issues, but its use has escalated in recent years, slowing down the Senate's business.

In 1977, during a filibuster on the Natural Gas Policy Act, the Senate set a series of precedents to restrict filibusters after cloture had been invoked. One of these precedents was that if cloture had been invoked, the presiding officer must rule nongermane amendments out of order. This meant that amendments that were not relevant to the measure being debated could be ruled out of order and not allowed.

In addition to restricting nongermane amendments, the Senate also imposed time limits on debates after cloture had been invoked. Initially, each senator was limited to one hour of debate, but this was later reduced to 30 hours for the total time available for consideration of a clotured measure. These rule changes made it more difficult for senators to use amendments as a filibuster tactic because they limited the time available for debate and restricted the types of amendments that could be offered.

While the use of amendments as a filibuster tactic has been restricted in certain ways, it is still possible for senators to propose amendments as a delay tactic. This is considered a form of filibuster because it can slow down the legislative process and prevent a bill from coming to a vote. However, there are now more limitations on this tactic, such as the requirement to submit all amendments before the cloture vote and the restriction on nongermane amendments.

The filibuster in other countries

The filibuster is a political procedure that allows one or more members of a legislative body to prolong the debate on a proposed piece of legislation, with the aim of delaying or entirely preventing a decision from being made. The term is derived from the Dutch "vrijbuiter", meaning "freebooter", a pillaging and plundering adventurer. While the filibuster is most commonly associated with US politics, it has also been employed in other countries, including Canada, Iran, South Korea, and India.

In Canada, the filibuster has been used by opposition MPs to challenge the government. For example, in 2017, Conservative and NDP Opposition MPs united to filibuster a motion from the Liberal Government House Leader, arguing that it was an attempt to limit the ability of opposition parties to hold the government accountable.

In Iran, Hossain Makki, a National Front deputy, used a four-day filibustering speech to stall a vote on oil nationalisation, highlighting the country's negative experiences with the AIOC and the shortcomings of the bill.

South Korean opposition lawmakers also employed the filibuster in 2016 to stall the Anti-Terrorism bill, which they believed would give too much power to the National Intelligence Service and infringe on citizens' privacy. The filibuster lasted for a total of 193 hours, ending with the passing of the bill.

The Indian legislative system provides some interesting variations on the filibuster process. The Rajya Sabha, the upper house of the Indian bicameral legislature, allows for a debate to be brought to a close with a simple majority decision on a closure motion introduced by any member. On the other hand, the Lok Sabha, the lower house, leaves the closure of the debate to the discretion of the speaker once a motion to end the debate is moved by a member.

While the filibuster can be a strategic tool for delaying or preventing decisions, its overuse can have negative implications for democracy, representation, and the balance of power between different branches of government.

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