Democrats in the United States Senate are poised to put forward a bill this week to codify the right to an abortion in federal law – a move that will almost certainly fail because of rules in the legislature.
President Joe Biden’s Democratic Party holds a majority in the US Congress, so why have many of the president’s proposals – ranging from police reform to voting rights – failed to win passage?
The reason is that rules in the US Senate generally require a 60-vote margin to pass most legislation because of a weapon called a “filibuster”. A filibuster is simply a tactic for keeping debate open indefinitely on a measure, thus preventing it from coming to a vote.
Once an uncommon feature of American politics, the filibuster is now routinely used by the minority party in the Senate to block, or slow down the majority party’s agenda. Breaking a filibuster requires a majority of at least 60 senators to vote for “cloture”, a motion that brings an end to debate and moves a bill forward to a separate vote on passage.
Biden’s problem is that Democrats’ narrow margin of control in the Senate falls in the middle – a kind of nether zone – where Republicans can easily block legislation using the filibuster and Democrats do not have enough votes to overcome it.
Senate Democratic leader Chuck Schumer on Monday is expected to file a motion to invoke cloture on the abortion rights bill. How the opposition Republicans vote on that will indicate where they stand on abortion, Democrats have said.
Al Jazeera explains how this works:
The House and Senate
For a bill to become law under the US Constitution, identical versions must first pass by majority votes in both the House of Representatives and the Senate. The House has 435 members and the Senate has 100.
Unlike the US House of Representatives, however, where the rules give the majority party control over the debate process, the Senate operates largely by principles of unlimited and unanimous consent.
“It was the intent of the framers of the Constitution that the Senate would be a more thoughtful and deliberative body,” Michael Traugott, a professor of politics at the University of Michigan, told Al Jazeera.
What is a filibuster?
The word filibuster comes from a Dutch word for “freebooter”, meaning pirate, and came into use in the 1850s to refer to the Senate’s rules that allowed any senator to capture floor debate and prevent action on legislation.
“Going back to the 19th century, the rule in the Senate was they could go on as long as the senator wanted. There was no restriction on how long you could talk. Debate could go on forever,” said David Schultz, a professor of politics at Hamline University.
“Now, what’s happened over time is, the filibuster has become a tool for some senators to prevent issues from even being brought up for a vote,” Schultz told Al Jazeera.
Rights of senators
Senate rules place few limits on the right of senators to speak on the Senate floor, which means a senator, or group of senators, can talk at great length to keep debate open and prevent a vote.
“The Senate has this problem that it lacks a rule that allows a simple majority to end debate. A minority can prevent a bill from coming to a vote,” Steven Smith, a professor of politics at Washington University in St Louis, told Al Jazeera.
In that respect, “the Senate is really unique in American government and around the world”, Smith said.
How the Senate debates
The core Senate rule governing debate provides that once a senator is recognised to speak, he or she may hold the floor for as long as desired.
Senators cannot be interrupted without their consent and there are no time limits, although in order to hold the floor a senator must remain standing and may not yield the floor to a colleague except for a question.
What is Rule 22?
Rule 22, the cloture rule, is one of the most important rules of the Senate. It was adopted in 1917 as the US was on the brink of entering World War I to allow the Senate to overcome opposition by a few vocal, anti-war senators.
The 1917 rule provided that debate on a bill could be brought to a close by an affirmative vote of two-thirds of senators present and voting in the chamber. In 1975, the number of votes needed was reduced to three-fifths of the Senate, or 60 votes.
The 100-seat Senate is presently divided 50-50 between Democrats and Republicans with Vice President Kamala Harris casting a tie-breaking vote that gives Democrats control of the agenda.
But because they only have 50 senators, Democrats cannot win a cloture vote without support from 10 Republicans. That means any meaningful legislation must be bipartisan.
When was the longest filibuster speech?
The longest single filibuster speech came in 1958 and lasted 24 hours and 18 minutes. It was given by the late Senator Strom Thurmond of South Carolina who was leading southern Democrats in a bid to stop a federal voting rights measure. A compromise bill passed by a vote of 71-18 within hours of the end of Thurmond’s speech.
Filibuster of the Civil Rights Act
One of the most notorious filibusters in US history lasted 60 days as a group of influential senators from southern states sought to prevent passage of the Civil Rights Act of 1964.
The bill extended civil, legal and political rights to African Americans and was eventually passed after the Senate invoked cloture in a 71 to 29 vote after the filibuster failed.
Judges, budgets excepted
In a major revision to the Senate’s norms in 2013, the threshold for cloture on federal judges was reduced to a simple 51-vote majority.
Faced with an overt blockade by Republicans of former President Barack Obama’s judicial nominees, Democrats changed the rules to allow more than 100 federal judges to be confirmed.
In 2017, Republicans struck back, lowering the confirmation threshold for Supreme Court justices from 60 votes to 51, allowing former President Donald Trump to name three conservatives to the US high court.
Annual budget measures that set spending and tax levels like Biden’s “Build Back Better” proposal are also exempted from the filibuster and cannot be used to make major policy changes.
Filibuster suspended recently
In late 2021, Republicans agreed with Democrats to waive the filibuster in order to pass an increase in the US Treasury debt limit with only Democratic votes.
The procedural trick allowed Congress to avoid a default on US Treasury debt while giving Republicans political cover to say they opposed the increase and did not vote for it even though a number had voted for the rules exception.