Senators Nuked the Filibuster in 1975. Then They Changed Their Minds.
On March 7, 1975, the Senate lowered the number of votes needed to overcome a filibuster. The effort consumed weeks of continuous debate. A closer look how that debate unfolded underscores the challenges Senate majorities face when opposed by a determined minority. The debate also illustrates how procedural conflict makes compromise between senators possible.
The Majority Goes Nuclear
A bipartisan coalition led by senators Walter Mondale, D-Minn., and James Pearson, R-Kan., introduced a resolution (S. Res. 4) at the beginning of the 94th Congress that reduced the threshold to invoke cloture from two-thirds of the entire Senate to three-fifths of those senators present and voting. The debate began on February 19 when Pearson made what was essentially a non-debatable motion to proceed to the consideration of S. Res. 4 in violation of the Senate’s rules. Pearson’s motion consisted of three separate parts. First, it specified that the Senate begin consideration of the resolution. Second, it stipulated that the Senate vote immediately on the motion to proceed and that cloture be invoked if supported by a simple majority of senators. Third, it required that the Senate vote on whether or not to proceed to S. Res. 4 immediately after cloture was invoked. On February 26, Majority Leader Mike Mansfield, D-Mont., raised a point of order that Pearson’s motion was out of order. After some debate, the Senate successfully voted to table the Mansfield point of order (51 to 42), even though it was consistent with the Standing Rules. In doing so, a senator majority used the nuclear option to create a precedent that a simple majority could change the rules at the beginning of a new Congress over the objections of a minority.
The Minority Retaliates
In response, James Allen, D-Ala., immediately retaliated by calling for a division of the three separate parts included in Pearson’s motion and began a filibuster of the first question (i.e., that the Senate begin consideration of S. Res. 4). Allen argued that the precedent just established did not apply because this part of the motion did not contain a constitutional question. Using Pearson’s own logic against him, Allen asserted that forcing a vote on the first part of the motion did not touch on a constitutional question and instead would violate the Standing Rules of the Senate. While a majority had just supported efforts to establish majority cloture on constitutional questions on the first day of a new Congress, some of the senators who supported doing so were nevertheless unwilling to go even further and establish majority cloture for questions that did not raise constitutional issues. Allen’s maneuver illustrates the ability of senators to define the question pending before the Senate in such a way as to make it more difficult for reformers to maintain a majority in support of their efforts. As a consequence, Allen’s maneuver prevented reformers from winning the day. The Senate eventually adjourned and the motion to proceed to S. Res. 4 was defeated.
Senators Get Frustrated
For several weeks, reformers continued their efforts to force the Senate to begin consideration of S. Res. 4 over the objections of their opponents. The Senate considered a similar three-part motion to proceed made by Mondale on February 24. During the subsequent parliamentary maneuvering that ensued, rank-and-file senators grew frustrated with the heavy-handed way in which the Vice President was managing the floor. For example, Harry Byrd Jr., I-Va., stated,
“I want to protest the rapidity with which the chair is putting these questions and refusing to recognize some of us who have been seeking recognition.”
Senators’ frustration reached a boiling point two days later when Rockefeller refused, on several occasions, to recognize Allen on several occasions. This triggered a rebuke from Russell Long, D-La.
“The Presiding Officer presides over the Senate…He does not own this body. I have never in my life seen it happen in the Senate that a man can be standing trying to seek recognition and not be recognized by the chair.”
Long warned his colleagues, “You have one man cloture right now.” Other senators came to the floor to criticize Rockefeller throughout the day, eventually leading the Vice President to apologize to Allen for not recognizing him.
Opponents of S. Res. 4, led by Allen, filibustered the resolution for weeks. In doing so, they delayed the Senate’s consideration of other business. Minority Whip Robert Byrd, D-WV, expressed concern about the impact of these dilatory tactics on the majority’s ability to process other important legislative priorities. From January to mid-March, Byrd wanted to proceed with “other responsibilities, one of which is to get urgent legislation disposed of.” Yet he acknowledged that the Senate’s leadership was worried that senators would exercise their ability to obstruct the majority’s agenda.
“The leadership does not want this thing to develop in an all-out struggle as to who knows most about the rules and who can utilize the rules to the fullest extent. We can all play that game, and I hope we will not get into that business.”
A Compromise Emerges
Mounting frustration soon precipitated negotiations to end the debate in a way acceptable to senators on all sides of the issue. Those negotiations produced a compromise agreement, introduced on February 28 by Majority Leader Mansfield, Majority Whip Byrd, Minority Leader Hugh Scott, R-Penn., and Minority Whip Robert Griffin, R-Mich. The compromise reduced the votes needed to invoke cloture to three-fifths of the entire Senate (instead of the three-fifths of those members actually present and voting, as sought by the reformers). In another significant concession to Allen and his allies, the compromise also maintained the higher threshold of two-thirds of those senators present and voting to end debate on measures to change the Standing Rules. Finally, the compromise formally reversed the precedent created by the Senate when it went nuclear on February 26.
After the debate, Allen emphasized the importance of minority retaliation in preventing a pro-reform majority from ultimately prevailing.
“If the idea is prevalent that members of the Senate will lie down, roll over and play dead to this type of action- unauthorized and not countenanced by the rules- then you can certainly look for that effort to be made.”
Had Allen not retaliated after the majority went nuclear, the precedent it created would have remained in effect.
Proponents of reform made similar observations about the role played by minority retaliation in preventing the establishment of majority cloture on the first day of a new Congress. That is, the minority’s behavior encouraged some pro-reform senators to negotiate a solution to the conflict instead of holding out for absolute victory. For example, Dick Clark, D-Iowa, acknowledged that he “reluctantly agreed” to negotiate in response to the minority’s retaliation. Clark recalled,
“the crucial votes to end debate had been won, and it was possible to move ahead and pass Senate Resolution 4 as originally introduced. But the leadership felt that an explosive situation existed in the Senate, so the proponents of a change in rule XXII have cooperated in their efforts to resolve this dispute.”
In the absence of minority retaliation, the pro-reform majority would not have had a reason to agree to a sub-optimal outcome to the debate.
Lessons for Today
The 1975 debate to reform the cloture rule demonstrates how compromise emerges out of procedural conflict between senators. It also underscores the importance of effort in regulating Senate decision-making. When today’s debates over the Senate’s rules are juxtaposed to it, the absence of both conflict and effort is striking. The 1975 debate demonstrates that senators are not victims and that they retain the ability to influence how the Senate makes decisions, even when they are outnumbered.