The Senate’s Cloture Cop-Out
Republican leaders say the Senate cannot debate the SAVE America Act because they lack the votes to invoke cloture. But the Senate can still advance legislation without a cloture vote by forcing opponents to hold the floor and sustain their obstruction. And if Republicans believe Rule XXII - the cloture rule - makes it too difficult to pass the election overhaul bill, they can always try to change it.
Republicans have options. They can use the Senate’s existing rules, or they can try to change them to make it easier to invoke cloture. Yet Majority Leader John Thune, R-SD, has dismissed the talking filibuster strategy as unworkable, and Republicans have made no serious effort to change the cloture rule.
That is a stark contrast with the Senate’s past. For most of its history, the chamber passed major legislation without relying on cloture. And when senators concluded that cloture made it too difficult to act, they fought to change the rule. Today’s leaders treat the cloture rule as an excuse for inaction rather than a constraint to be overcome.
The Cloture Rule
Senators can use the process spelled out in Rule XXII to invoke cloture, or end debate, and advance legislation. The first step is filing a cloture motion signed by 16 senators. The Senate votes on the motion one hour after it convenes, after an intervening day. For legislation, cloture requires three-fifths of senators duly chosen and sworn, typically 60 votes. Proposals to change the Senate rules require two-thirds of senators present and voting, typically 67 votes. After the Senate votes to end debate, it enters a post-cloture period. Debate is capped at 30 hours, amendments must be germane and timely filed, and dilatory motions are prohibited.
The Senate adopted the first cloture rule in 1917 after a filibuster blocked President Woodrow Wilson’s proposal to arm merchant ships before the United States entered World War I. Before that, the Senate had no formal procedure to cut debate short. But the original cloture rule differed from today’s rule in several ways. For example, the 1917 rule allowed senators to file cloture petitions on fewer questions, required two-thirds of senators present and voting to end debate, and did not cap the total time allowed after the Senate invoked cloture.
Changing the Cloture Rule
The 1917 rule became today’s rule because of senators’ efforts to make it more workable. The first major change came in 1949. Majority Leader Scott Lucas of Illinois sought to amend Rule XXII to overcome repeated filibusters of President Harry Truman’s civil rights agenda, including proposals to combat employment discrimination and to outlaw the poll tax. Lucas wanted cloture to apply not only to bills, but also to motions to proceed to bills. Under the original rule, a bill’s opponents could block the Senate from taking up the legislation by filibustering the motion to proceed to its consideration. During the debate over Lucas’ proposal, the presiding officer ruled that Rule XXII applied to the motion to proceed. The Senate reversed the ruling on appeal before negotiating a compromise that raised the cloture threshold from two-thirds of senators present and voting to two-thirds of the entire Senate.
During the 1950s, Senator Clinton Anderson of New Mexico repeatedly argued that a Senate majority could change the rules at the beginning of a new Congress without invoking cloture. In 1953 and again in 1957, Anderson tried to use this so-called constitutional option to make it easier to invoke cloture. While Anderson was unsuccessful, his efforts led the Senate to change the cloture rule in 1959. In that year, the Senate lowered the cloture threshold from two-thirds of senators duly chosen and sworn to two-thirds of those present and voting.
The Senate next changed Rule XXII in 1975. That year, a bipartisan coalition led by senators Walter Mondale and James Pearson tried to reduce the cloture threshold to three-fifths of senators present and voting. The Senate briefly went nuclear during the subsequent debate. On February 20, it voted 51-42 to table Majority Leader Mike Mansfield’s point of order against Pearson’s motion, effectively establishing that a majority could change the rules at the beginning of a Congress. But opponents, led by Senator James Allen of Alabama, retaliated. They divided Pearson’s motion and filibustered the portion that did not present a constitutional question under the new precedent. The result was another compromise. The Senate lowered the cloture threshold to three-fifths of senators duly chosen and sworn.
After the 1975 change, Allen exploited the new rule by mounting post-cloture filibusters, using repeated motions to delay final votes even after the Senate voted to end debate. In response, the Senate capped the total amount of post-cloture time at 100 hours in 1979. And the Senate reduced post-cloture time to 30 hours in 1986, when 100 hours proved unworkable.
In recent years, the Senate has used the nuclear option to circumvent the cloture rule instead of changing it formally. Democrats first used the nuclear option in 2013 to lower the cloture threshold to a simple majority for executive branch nominations and lower-court judicial nominations. In 2017, Republicans extended that precedent to Supreme Court nominations during the fight over Neil Gorsuch. Republicans again used the nuclear option in 2019 to circumvent the cloture rule, reducing the total post-cloture debate time to 2 hours for most executive nominations and district court nominees.
The Takeaway
Cloture’s history shows that senators have tried to change the cloture process whenever they found it unworkable. When senators believe the cloture rule prevents them from advancing legislation, they can use other Senate rules to make it harder for a bill’s opponents to filibuster it. They can also try to change Rule XXII. The lesson is simple: the lack of 60 votes is not the end of the matter.
That is what makes Republican leaders’ current posture on the SAVE America Act so revealing. They are not merely saying they lack 60 votes. They are acting as if the absence of sixty votes ends the matter, even though the Senate can still debate the bill and force its opponents to hold the floor and talk to stop it. And they aren’t trying to change the cloture rule. That is the real problem.