What is the filibuster, and why does it matter in Nebraska?

A group of lawmakers is continuing this week to filibuster all bills that come before the Nebraska Legislature — even the ones they support — in protest over a bill that would ban gender-affirming treatments for minors.

Supporters of that bill say they’re trying to protect children from making body-altering decisions they may later regret. Opponents say it's an unconstitutional overreach meant to marginalize LGBTQ+ people.

Filibusters are rare in most U.S. state legislatures, but common in Nebraska. Lawmakers use the tactic in each session of the unique one-chamber Nebraska Legislature to try to force compromise on contested bills. This streak of filibusters is the longest in the state's history and lawmakers behind them vow to block every bill through the end of the 90-day session. Here's a look at how it could play out:

WHAT'S A FILIBUSTER?

It's a political maneuver that extends debate on a bill in an effort to delay or block its passage. Burning that debate time can also delay votes on other bills and can force lawmakers to work longer days.

While filibuster rules vary across the U.S., they bring to mind a lawmaker giving lengthy speeches on the legislative floor to stop a bill, as Jimmy Stewart's character did in the 1939 classic movie, “Mr. Smith Goes to Washington."

In 2013, Texas state Sen. Wendy Davis, a Democrat, drew national attention by speaking for 13 hours straight to try to stop legislation restricting access to abortion.

In Nebraska, lawmakers can seek to delay bill votes by introducing amendments and motions to it, which are debated by the entire body.

WHAT'S HAPPENING IN NEBRASKA?

For weeks, a single Omaha Democrat has filibustered nearly every bill to come before the Nebraska Legislature.

The move from Sen. Machaela Cavanaugh makes good on a threat she made to conservative lawmakers promising to stonewall all legislation if they advanced a bill out of committee that would outlaw gender-affirming therapies for those under 19. It is one of roughly 150 bills targeting transgender people that have been introduced in state legislatures this year.

Now, she's got backup. Cavanaugh paused her filibuster for a day earlier this month after the bill was scheduled for debate, believing it did not have the votes to advance. But after eight hours of debate over three days, the bill passed, thanks to a Democratic legislator who voted with Republicans. That led other lawmakers to pledge they would join Cavanaugh in filibustering every bill for the rest of the session.

HOW DOES THE FILIBUSTER WORK IN NEBRASKA?

Nebraska’s filibuster rules are less severe than in other states, some of which forbid lawmakers from sitting, taking a bathroom break or speaking on anything other than bill being filibustered.

The Nebraska rules also allow them to discuss pretty much whatever they want, as evidenced by Cavanaugh's monologues on everything from her favorite Girl Scout cookies to the plots of animated movies her children have watched.

Nebraska rules, instead, place time limits on filibusters. Bills must go through three rounds of debate to pass, and up to eight hours of debate is allotted for the first round before a cloture vote — or a vote to end debate — is taken. If the bill is uncontested, it can get through that process and be voted on much sooner. But if it’s filibustered, it usually takes the full eight hours.

The second round gets up to four hours of debate, and the final round gets up to two hours. If a cloture vote gets 33 or more votes, debate ends and a vote is taken on the bill. If cloture gets less than 33 votes — in any round — the bill is considered dead for the year.

Former Sen. Ernie Chambers, a left-leaning former lawmaker from Omaha, served 46 years as a state senator and mastered the use of the filibuster to try to tank bills he opposed and force support for bills he backed. But he had a knack for convincing lawmakers to change their minds, often within days.

The Nebraska Legislature is also the only one in the U.S. that is officially nonpartisan. But each of its 49 lawmakers self-identify as Republican, Democrat or independent and tend to propose and vote for legislation along party lines.

Republicans hold 32 seats, while to Democrats hold 17 seats. Although bills can advance with a simple majority, it takes a supermajority — 33 votes — to end debate to overcome a filibuster. That's more than the 30 votes needed to override a governor's veto.

WILL IT WORK?

It remains to be seen whether filibustering lawmakers can run out the clock before the session ends or sway other lawmakers to vote down the trans health bill.

The effort has succeeded in stunting the work of the Legislature this session. Speaker of the Legislature Sen. John Arch acknowledged last week that the effort has already stymied the number of bills lawmakers will be able to pass, even though he added nighttime debates starting this week.

Nearly 200 bills passed in the last 90-day session in 2021. This year, the Legislature is on track to pass only a fraction of that before it adjourns in early June. Not a single bill has passed, and only 32 have advanced from the first round of debate.

The minority has had some success in filibustering bills. Last year, progressive lawmakers used it to block an abortion ban and a law allowing people to carry concealed guns without a permit.

The effort has not derailed the trans health bill, which advanced from the first round of debate last week.

The filibuster is getting some pushback from other Democrats.

“I don't have the luxury to blow up everything,” said Omaha Sen. Justin Wayne, adding he wants to tackle bills related to criminal justice and improvement of school and child services.