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 20th 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 110th Con­gress (Janu­ary 4, 2007 through Janu­ary 2, 2009). The 111th 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.

  1. Much of this in­form­a­tion comes cour­tesy of Wiki­pe­dia and Sen­ate Pro­ced­ure and Prac­tice by Mar­tin Gold. 

  2. Dur­ing this de­bate, after talk of re­viv­ing pre­vi­ous ques­tion had aris­en, Sen­at­or Wil­li­am King of Alabama fam­ously said to Sen­at­or Henry Clay of Ken­tucky, “I tell the Sen­at­or, then, that he may make his ar­range­ments at his board­ing house for the winter.” 

  3. It is worth not­ing that un­like clo­ture in oth­er bod­ies, a suc­cess­ful vote for clo­ture in the United States Sen­ate does not end de­bate im­me­di­ately. In­stead, de­bate is lim­ited to a fur­ther 30 hours and cer­tain oth­er pro­ced­ur­al delays are pro­hib­ited. 

  4. Robert’s Rules of Or­der, the de facto stand­ard for par­lia­ment­ary pro­ced­ure, re­quires two-thirds ma­jor­it­ies for such mo­tions to pass as does its com­pet­it­or, The Stand­ard Code of Par­lia­ment­ary Pro­ced­ure

  5. Rule XIX does pro­hib­it any one Sen­at­or from speak­ing twice in the same day on the same top­ic. This, however, is eas­ily cir­cum­ven­ted by speak­ing as long as pos­sible dur­ing one of those two op­por­tun­it­ies or by of­fer­ing an amend­ment which would then be con­sidered a sep­ar­ate top­ic of de­bate.