The Rules of the United States Senate

[…] the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

[…]

After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof[.]

—from Rule XXII of the Standing Rules of the United States Senate

A Brief History of the Filibuster¹

The filibuster first became a possibility in the United States Senate in 1806, when the Senate, after having been so advised by Vice President Aaron Burr, abolished the “previous question” procedure from the Standing Rules of the Senate. “Previous question” is a common parliamentary procedure for ending debate early and bringing the matter currently being considered to an immediate vote. When this rule was eliminated, it became impossible for the Senate to close debate of a particular topic so long as at least one Senator still had something to say.

The use of this procedural vacuum to stall or kill legislation first began in the 1830s but took on new significance during the contentious debates about chartering the Second Bank of the United States in 1841². Despite periodic attempts at revival, the Senate would remain without a previous question procedure for 111 years. Finally, in 1917, after the Senate’s session expired without having voted on a popular war bill, the Senate’s rules were amended to permit cloture³ (another term for previous question, often used in the context of legislative bodies). Typically⁴ for a motion to end debate early, this cloture motion required the consent of two-thirds of all senators present and voting. The current practice of requiring a smaller three-fifths majority of all senators duly chosen and sworn (i.e. present or not) was established in 1975.

In spite of repeated frustration with protracted debates in the Senate, for most of the Senate’s history—including those years when no cloture procedure existed—filibusters remained a rarity until the late 20^th century. The 1960s saw a dramatic proliferation in the number of filibusters as southern Democrat Senators attempted to block civil rights legislation. In spite of the failure of those attempts, the proliferation of filibusters has continued unabated ever since with every Senate term from 2000 to 2009 having no fewer than 49 filibusters. In 2005, Republicans, then in the majority, began talking about reducing the majority needed to pass cloture to a simple majority but ultimately dropped the proposal as it became clearer that the Republicans were likely to lose their majority status in the 2006 elections. With the Democrats now in power and with Republicans using filibusters to block virtually every aspect of the Democrat agenda, the Democrats are now the ones to talk about easing cloture votes.

Why the Senate?

Inevitably, all deliberative bodies with formal rules will be subject to those rules being used to delay or block the work of that body. And delay isn’t necessarily a bad thing; laws affect the lives of everyone living under their jurisdiction and time should be taken to consider them carefully. So why is it that the United States Senate, in particular, has so much trouble with delaying tactics like the filibuster while others, such as the United States House of Representatives, do not?

Not all of this difficultly can be attributed to the cloture rule and its requirement of a three-fifths majority. As I alluded to earlier, requiring supermajority votes to end debate early is typical for deliberative bodies, with most actually requiring a larger, two-thirds majority. Indeed, for 111 years the Senate operated without a cloture rule of any kind and yet was still able to bring legislation to a final, up or down vote.

Remember that a vote for cloture is not a vote to end debate per se; it is a vote to end debate early. Early means different things to different people but in this context it means ending the debate sometime before what the rules would otherwise have allowed. And herein lies the Senate’s particular vulnerability to delay by means of debate: the Senate’s Rule XIX, which governs debates, imposes no limits on how long a Senator may speak once he has been recognized by the presiding officer. Nor is a speaking Senator required to speak about the topic at hand (“germane” debate in legislative parlance). Unlimited speech is often seen as a special privilege of the Senate; debates in the House of Representatives are always subject to strict time limits. Thus, under the traditional rules of the Senate, debate continues so long as any Senator has something that he or she wishes to say⁵.

This rule is the source of the classic filibuster depicted in Mr. Smith Goes to Washington where one Senator simply talks for as long as he or she can possibly manage. Senator Strom Thurmond set a rather dubious record in this regard in 1957 by speaking for 24 hours and 18 minutes in a failed attempt to block the Civil Rights Act of that year. The aforementioned filibuster by southern Democrat Senators of the 1964 Civil Rights Act lasted 75 hours. Ultimately, however, the debate in each of these cases did end without invoking cloture.

Why Now?

Today, the “classic” filibuster almost never actually happens. Even the “classic” filibuster’s much more staid cousin—where the minority ensures a quorum is not present and thus prevents a vote without having to actually speak endlessly—rarely happens any more. Instead, the mere threat of a filibuster is enough to stop the majority party in its tracks. Why is that today’s filibusters are almost never played out?

For most of the Senate’s history, only one bill could be considered at a time. Filibusters would therefore not only prevent progress on the current bill but indeed on all bills pending before the Senate. The only alternative was to table the bill, which, thanks to the Senate’s rules on tabled motions, effectively kills the bill. Halting all progress in the Senate is a politically costly move and most Senators are reluctant to go quite that far. During the civil rights filibusters of the 1960s, however, the Senate began to allow more than one bill to be “on the floor” at a time. Thus, the debate in the Senate could switch from a filibustered bill to a non-filibustered bill without having to officially table the filibustered bill. In so doing, the political costs of filibusters were greatly reduced as filibusters no longer halted all progress in the Senate.

With the political costs of filibuster all but gone, they have become much more common. The majority party, eager to move forward with its agenda and unwilling to waste valuable floor time, rarely limits debate to only filibustered bills. This, in turn, has reduced the barriers to filibusters even more as mere threats are enough to persuade the majority party to move on to other matters. This has created a kind of positive feedback mechanism where the easier each filibuster becomes, the more likely a filibuster is to happen and the more filibusters happen, the easier they become. We have now reached a point where filibusters are essentially costless and completely effective unless the majority party can muster the necessary 60 votes for cloture.

Is That Legal?

There is a school of thought, recently espoused by Thomas Geoghehan in a New York Times op-ed piece, that the requirement of a supermajority to pass a motion of cloture is unconstitutional. The thinking goes something like this: the Constitution specifies certain votes which require a supermajority to pass—ratifying treaties, amending the Constitution, overriding the President’s veto, etc.—and in all other cases a simple majority vote is sufficient to pass any measure. By requiring a supermajority of 60 votes to end debate, Rule XXII creates an unconstitutional supermajority requirement for all bills. Therefore, the Constitution essentially requires Rule XXII to be changed to require only a simple majority to invoke cloture.

Unfortunately for proponents of simple majority cloture in the Senate, that line of thinking does not stand up to scrutiny. In the first place, it represents a fundamental misunderstanding of what cloture is: it is a procedure to end debate early. Debate in the Senate can, and often does, end without invoking cloture when the Senators run out of things to say; such bills can pass the Senate without ever having commanded a 60-vote supermajority. Generally, only controversial bills are subject to filibuster.

Secondly, the Constitution clearly allows the Senate to set its own rules: “Each House may determine the rules of its proceedings[.]” (Article I, Section 5) Implicit in the determination of “the rules of its proceedings” is the power to determine by what fraction procedural motions, such as cloture, must pass. Indeed, there are other rules which require something other than a simple majority: Rule X on special orders, for example, requires a two-thirds majority. No one questions their constitutionality and no one should for the Senate has the power to set its own rules.

The Modern Senate

With the question of the cloture rule’s constitutionality safely put aside, there remains nevertheless an obviously growing paralysis in today’s Senate. Whereas cloture was once considered unnecessary in the Senate and indeed was not possible for 111 years, 139 motions for cloture were filed in the Senate during the 110^th Congress (January 4, 2007 through January 2, 2009). The 111^th Congress has been similarly stymied, unable to pass legislation about health care reform, financial reform or carbon emissions reductions. Many who observe this ineffectiveness correctly blame the now-overused filibuster. Many of those same individuals, then, call for simple majority cloture.

Normally, simple majority cloture would be a terrible idea. Remember that cloture is a motion to end debate early; if only a simple majority is needed to end debate then the majority party could end debate within 5 minutes of it having started. Should the rest of the rules regarding cloture in the U.S. Senate remain, however, simple majority cloture in that house would not have such an undesirable effect. The Senate’s version of cloture, after all, merely limits debate to a further 30 hours rather than ending debate immediately. Simple majority cloture might, therefore, be a reasonable solution.

There are, however, other solutions which I find preferable. The most obvious solution, to me, is to introduce time limits on debates in the Senate. This is, after all, what the House of Representatives did to great effect. Granted, the time limits in the House are a little severe, often 5 minutes or less. Since the Senate is a smaller body it could use limits that are far less draconian; say one hour per senator per debate. While unlimited debate is an honored tradition of the Senate, it is clear to me that today’s Senators simply aren’t worthy of that tradition.