Filibustering in the U.S. Senate By Lauren C. Bell

it can be difficult to identify procedural markers that indicate when a filibuster is occurring. One marker that some scholars have attempted to use in the past in order to identify filibusters is the cloture vote. Cloture refers to the process of ending debate; a cloture vote is taken to determine whether the chamber wishes to end debate on an item of pending business. But as Beth (1995) and others have pointed out, the cloture vote, perhaps the most obvious marker of a filibuster, is at best only a poor proxy for identifying filibusters, as some filibusters are subject to multiple cloture attempts,³ whereas other filibustered measures are never subjected to even a single attempt. This is especially true since “tracking” became part of the Senate's floor procedure in the 1960s. Tracking is the practice of permitting several items of Senate business to be pending simultaneously. If a senator filibusters an item in one “track,” the Senate leadership can simply turn to another pending item and continue to prosecute the Senate's legislative agenda. Because of tracking, filibusters no longer bring the work of the Senate to a halt. With filibustered measures on one track in the chamber and non-controversial measures on another track, the Senate can complete significant amounts of work without ever turning to a filibustered measure. Thus, some measures being filibustered might never be subject to a cloture vote.

There are several additional reasons that using cloture votes to identify filibusters is inappropriate. First, cloture did not exist until 1917; thus, this method makes it impossible to identify pre-1917 filibusters. Second, since 1997, Majority Leaders Lott, Daschle, Frist, and Reid all have engaged in the practice of filing a cloture petition simultaneously with calling up a piece of controversial legislation in order to preempt opponents from engaging in a filibuster. Such preemptive cloture votes, if counted as actual filibusters, would dramatically overrepresent real instances of filibustering in the Senate. To be sure, preemptive efforts may be aimed at legitimate filibuster threats. However, in many cases, there is no actual filibuster or filibuster threat pending against a particular piece of legislation for which a preemptive cloture motion is brought. For this reason, among others, it is important to distinguish among filibusters, filibuster threats, and preemptive cloture motions. Finally, cloture