A filibuster threatens to block Trump’s Supreme Court pick. Here’s how that works.

So what now?
So what now?
Image: Reuters/Joshua Roberts
We may earn a commission from links on this page.

This item has been updated following today’s vote in the Senate.

The Republicans currently running the US senate want nothing more than a vote on Donald Trump’s Supreme Court nominee Neil Gorsuch to happen on April 6. But a majority is no guarantee they will get their way: Democrats have voted to filibuster, a procedural move that could typically delay or even block a vote.

But what is a filibuster?  To a foreigner like myself, the practice—a parliamentary stalling procedure employed in many democratic countries, including the United Kingdom, Canada, and South Korea—seems remarkably theatrical in the US. In my home country of Italy, political obstructionism is typically done in a procedural, bureaucratic way (for instance by presenting an unreasonable numbers of amendments to a proposed law). Rarely do our politicians speak openly about their strategy.

In comparison, US politicians have embraced the public spectacle of the filibuster in a way I find fascinating. On the one hand, their brazenness regarding the strategy seems to contrast with America’s cult of efficiency. On the other, however, it aligns with the country’s romantic perception of democracy. Politics is almost never black and white, and there are few true heroes in the US Congress. Yet a filibuster here still conjures up the image of an underdog, valiantly fighting against a bigger, more powerful foe. This romantic association is reinforced by cultural depictions of the filibuster, including in pop culture.

But Hollywood portrayals aside, it’s helpful to understand what a filibuster actually does and how it works in the US. Here’s a quick primer in advance of the Gorsuch showdown today:

The origins

The term filibuster originates from the French filibustier, or pirate, which in turn is connected to the Dutch vrijbuiter—literally meaning someone who takes a free bounty. In English, however, the word is used in another, metaphoric sense: The pirates don’t take a ship, they take the senate floor.

Gregory Kroger, a professor at UCLA and author of Filibustering: A Political History of Obstruction in the House and Senate, defines a filibuster as wasting time in order to delay a proceeding.

While initially more common in the House of Representatives, filibusters became more frequent in the US senate in the second half of the last century, as Southern politicians worked to stop civil-rights legislation. The Civil Rights Act of 1964 was blocked for 60 days until enough senators were present to call for an end to debate and the start of a vote (the law passed).

In the 100-member US senate, filibusters are regulated by rule XXII, also known as the cloture rule, which allows discussion to be ended by a super-majority of 60 senators. This means debate can continue ad libitum until 60 senators vote for it to be ended, a higher hurdle than the simple majority of 51.

How it’s done

The best known type of filibuster is a never-ending speech, depicted most famously by the actor Jimmy Stewart in Frank Capra’s 1939 drama, Mr. Smith Goes to Washington:

One of the most recent (and real) examples of a filibuster occurred at the state level, however. Texas state senator Wendy Davis held the floor for nearly 13 hours, speaking uninterruptedly in an effort to stop an anti-abortion law. The Texas senate requires senators who want to hold the floor to continue without food, drinks, or other means of support in order to keep the filibuster going. Davis’ pink sneakers became a national symbol of political resistance.

At a national level, however, things are a lot less dramatic.

More commonly, the discussion subject to filibuster is left hanging and another matter is introduced for debate. Senators operate under the understanding that if the original discussion is revived, it can continue until 60 members are present in the chamber to vote to end it.

Other popular stalling techniques include making a series of motions to adjourn the proceeding (for example a motion asking to count how many senators are present to vote), or to ask for a recess. It doesn’t take much, Kroger says “to chew up the whole day.”

In other cases, the senate majority leader, notified of the intention of a filibuster—in this case Democrats have already notified Senate majority leader Mitch McConnell of their intent to filibuster Gorsuch—can even decide not to open the debate and move on to other matters entirely. “The senators make a threat to [filibuster],” says Koger, and the majority acknowledges “that it’s a valid threat, and tries to work around it,” by changing the bill, for instance, or postponing the vote.

Going nuclear

In response to this most recent filibuster, however, Republicans are getting ready to change the rules and make it much easier for the majority party to break a filibuster, rendering it ineffective. Called the “nuclear option,” even senior Republicans acknowledged that this strategy will have serious consequences. If senate Republicans do decide to go nuclear, they will be following a precedent set by senate Democrats in 2013. The majority in the Senate at the time, Democrats changed the rules so that a simple majority was enough to bring about a cloture vote on most issues. Notably, Democrats exempted debates on new laws and Supreme Court nominees from the change in procedure.

In oder to exercise the nuclear option, senate majority leader Mitch McConnell would have to make a so-called “point of order,” demanding that the filibuster is taken to a cloture vote with a simple majority of 51. Whoever is presiding over the vote will strike the point down, because at the moment the rule is that 60 votes are required for cloture. At that point McConnell could ask for a vote against the decision to strike down his request, and would only need 51 votes to win his appeal. That would create a precedent, and from then on cloture for Supreme Court justice nominations would be achieved with a simple majority. (Filibustering on legislation would still need 60 votes for cloture, although that requirement could eventually be changed as well.)

McCain, who has pledged to support the nuclear option, has said that he thinks the change represents “a dark day in the history of the United States Senate.” McCain’s dramatic rhetoric aside, however, lowering the requirement for cloture effectively gets rid of an instrument that has become a trademark of America’s democracy. This politically strategic tool may soon become little more than a symbol of partisanship run amok.