Why GOP Leaders Oppose Talking Filibuster

Proponents of the SAVE America Act want Majority Leader John Thune, R-SD, to bring the bill to the floor and challenge its opponents to filibuster it. Thune has so far refused, arguing that the strategy is unworkable because Republicans don’t have the votes needed to invoke cloture (i.e., end a filibuster) on the election overhaul bill.

Thune’s implicit assumption is that the Senate can’t pass major legislation without first invoking cloture on it. In other words, Democrats are holding up the SAVE America Act because they won’t vote for cloture.

Yet the Senate’s present reliance on the cloture to pass legislation is a recent development. And a closer look at how cloture works in practice suggests that the majority party is responsible for its increased use - not just the minority.

Cloture 101

The Senate adopted Rule XXII - the cloture rule - in 1917. The rule states that a motion to invoke cloture, or end debate, on any "measure, motion, or other matter pending before the Senate" requires an affirmative vote of "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 is two-thirds of the senators who are present on the floor and voting.

The Senate created the rule because it previously had no way to end debate over the objection of any senator. Outside of the cloture process, if a senator has the floor, the chamber’s presiding officer may not put the pending question to a vote. Senate precedents stipulate, "When there is a debatable matter before the Senate and debate is not limited, a Senator who has been recognized may proceed without interruption. Under those circumstances, a Senator may keep the floor as long as he or she remains standing and continues to debate.”

Cloture created a process that allows the Senate to end debate and proceed to a final passage vote, even if a senator is speaking or seeking recognition to speak. According to Senate precedent, "When the time arrives for a cloture vote, a Senator who has the floor will lose the floor and that Senator is not entitled to the floor after the cloture vote.” Once cloture is invoked, the Senate enters a post-cloture period - today capped at 30 hours - at the end of which it votes on final passage.

The Conventional Wisdom

Most observers treat cloture as a synonym for the filibuster. They cite the total number of cloture motions as evidence of minority filibusters. This leads to gridlock in the present polarized environment because Democrats and Republicans are too far apart to compromise on important issues, and one party rarely has the 60 votes needed to invoke cloture without some minority support.

According to this view, cloture empowers the minority to slow or defeat the majority’s agenda. This is because invoking cloture is a time-consuming process. It takes four calendar days to file a cloture motion, vote on it, and vote on final passage. The Senate’s present reliance on cloture means that a single senator can delay a bill’s passage simply by withholding their consent to schedule a vote on it. Cloture also raises the number of votes needed to pass legislation. As the Senate operates today, a three-fifths vote is effectively required to schedule an up-or-down vote on most questions absent the unanimous agreement of all 100 senators.

What’s Really Happening

But the conventional take on cloture isn’t the whole story. Cloture doesn’t just empower the minority. It also empowers the majority to control the Senate’s agenda and make the legislative process more predictable. That is why the majority leader routinely files cloture preemptively - often on the same day a bill reaches the floor - to speed its consideration regardless of how much time senators have spent debating - or filibustering - it.

Cloture gives the majority leader a way to schedule the Senate’s business and make the legislative process more predictable. While it is a time-intensive process, it is the only clearly established procedure in the Senate rulebook for scheduling votes in advance without unanimous consent. According to the Senate’s precedents, “when a Senator yields the floor, and no other Senator seeks recognition, and there is no order of the Senate to the contrary, the Presiding Officer must put the pending question to a vote.” The majority leader can use cloture to bring senators back to Capitol Hill after they go home for the weekend and to force action by scheduling votes at the end of the week or before a long recess. Rank-and-file senators are typically less likely to vote against ending debate if it means they must stay in Washington instead of going home.

Cloture also empowers the majority leader to protect the underlying bill from poison-pill amendments and to prevent majority-party senators from having to cast politically difficult votes. The rule prohibits senators from offering non-germane amendments to a bill after cloture has been invoked. And when used alongside filling the amendment tree, it allows the majority to prevent amendments altogether and set up take-it-or-leave-it votes. The majority tries to use such votes to create the impression that minority party senators are unified in opposition to issues supported by the American people.

The Takeaway

The Senate’s present reliance on cloture to pass legislation does not establish that Republicans cannot pass the SAVE America Act without 60 votes. Nor does it tell us how long a Democratic filibuster would last. What it does suggest is that Thune’s reluctance to put the bill on the floor and force Democrats to filibuster reflects a different concern: doing so would make it harder for Republican leaders to manage the debate and prevent unwanted votes.

Cloture is not just a procedural tool for overcoming minority obstruction. As the majority party has sought to expand its control over the Senate by structuring the floor process to its advantage, the Senate’s reliance on cloture has increased. The rise in cloture filings - and the decline in minority amendments offered on the floor - reflects the extent to which majorities now use cloture not only to limit both the minority’s ability to filibuster bills, but also its ability to amend them. In short, cloture has become a tool for majority control as much as minority obstruction.