No, senators do not have to talk to filibuster a bill

The U.S. Senate’s debate on changing the filibuster came to a head on Jan. 19 when the Democratic majority put the issue up for a vote in an attempt to get voting rights legislation past Republican opposition. The Senate voted against making any changes to the filibuster 52-48, with two Democrats crossing party lines to oppose changing the practice.

Some senators proposed changing the filibuster so a senator has to talk to actually filibuster a bill. Spoken filibusters, made up of long, drawn-out speeches, are how filibusters are often portrayed in the media, most famously in the 1939 movie “Mr. Smith Goes to Washington.”

“When I first got to the Senate, I thought you had to talk to filibuster a bill,” Sen. Mark Warner, D-Va. said in a tweet. “But that’s not the case. You can do it without even appearing on the Senate floor.”

THE QUESTION

Do senators have to talk to filibuster a bill?

THE SOURCES

• U.S. Senate
• Constitution Center
• Former U.S. Senator Walter Mondale
• Dr. Gregory Wawro, chair of Columbia University’s political science department
• Gerard Magliocca, University of Indiana law professor
• Brennan Center

THE ANSWER

No, senators do not need to talk to filibuster a bill. Since the 1970s, senators have had the option to use a “silent filibuster,” which means they can delay a bill by saying they intend to filibuster the bill.

WHAT WE FOUND

The filibuster is a tactic senators can use to prolong debate in an effort to indefinitely delay a bill. It is only ended by a vote of cloture from three-fifths of the Senate. Traditionally, this was accomplished by “talking a bill to death” — quite literally keeping debate on the bill going.

But the Constitution Center says that the “old-style speaking filibuster” has mostly gone into retirement since the 1970s, replaced with the “silent filibuster.”

“Today’s system is much more about the threat of a filibuster blocking a measure from consideration by the full Senate­, and not the act of a senator taking the floor and speaking for hours,” said Scott Bomboy in an article for the Constitution Center. 

The shift from talking filibusters to silent filibusters occurred because of a new “two-track system” the Senate instituted in the early 1970s, according to Congressional testimony from former Democratic Sen. Walter Mondale.

Dr. Gregory Wawro, chair of Columbia University’s political science department, wrote in a historical review he used in Congressional testimony that the two-track system allowed for obstructed bills to be placed on a separate legislative “track.” Before this system, a filibuster didn’t just delay a single bill, it halted all Senate business. By moving filibustered bills to a separate “track,” Wawro said, the Senate could move on to other business.

Wawro said the reason the Senate instituted this system was because senators’ schedules had become increasingly packed, making it impractical to try to outlast filibusters.

The Brennan Center said the Senate would move filibustered bills to the “back burner” until a cloture vote could be held, while it focused on other bills it could actually make progress on. But the Brennan Center said this had the consequence by giving the minority party the power to kill a bill before it could ever reach the Senate floor by simply indicating its desire to filibuster the bill.

University of Indiana law professor Gerard Magliocca wrote in a review of the filibuster that because a threat of a filibuster shoves a bill aside until enough votes for cloture can be rounded up, the two tracks exist only as a formal matter.

But this practice, Magliocca wrote, is not mandated by a rule. The majority party can still choose to bring a bill threatened with a filibuster to the floor and can choose to keep the bill on the floor once it has been filibustered. At that point, the minority party would be forced into endless debate — talking filibusters — Magliocca said. But this almost never happens today, he said.

More from VERIFY: No, the filibuster isn’t something the Senate has ‘always had’