(Editor's Note: This piece first appeared at legbranch.com on November 15, 2017.)
Senate Rule XXII requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to invoke cloture, or end debate, on any “measure, motion, or other matter pending before the Senate…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.”
Consequently, cloture is typically understood today as making minority obstruction possible. 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. However, ending debate on presidential nominations only requires a simple-majority vote. (Democrats used the nuclear option to reduce the threshold to invoke cloture on most nominees in 2013 and Republican did the same for Supreme Court nominees earlier this year.)
Notwithstanding the recent use of the nuclear option, cloture remains a time-consuming process when the Senate is considering nominations and legislation. For most debatable measures, the entire process requires four calendar days to complete. This gives individual senators the ability to singlehandedly delay the consideration of the majority’s agenda on the Senate floor simply by withholding their consent to expedite the decision-making process. Given this, the number of cloture votes is frequently cited as evidence of minority obstruction.
But there is more to cloture than minority obstruction.
It is certainly not incorrect to view cloture motions and minority obstruction as related. However, such a narrow focus overlooks the many advantages that the cloture rule offers Senate majorities. In July 2012, then-Majority Leader Harry Reid, D-Nev., acknowledged these benefits in an exchange with then-Minority Leader Mitch McConnell, R-Ky. on the Senate floor in July 2012. “The filibuster was originally…to help legislation get passed. That is the reason they changed the rules here to do that.”
The majority, acting through its leadership, can use cloture to structure the legislative process to its advantage. When viewed from this perspective, the incidence of cloture votes also reflects an increase in the influence of the majority leader and, by extension, the majority party, in the Senate’s deliberations.
The evolution in the use of cloture during the second half of the twentieth century increased the influence of the majority leader. Cloture is now utilized preemptively on a routine basis to speed consideration of legislation regardless of time spent on the floor. In this process, the majority limits the minority’s ability to freely debate measures and offer amendments pursuant to the Senate rules. Such behavior may simply result from the anticipation of expected obstruction by the minority party. It could also represent a genuine effort to push the majority’s agenda through the Senate unchanged in a timely manner. The restrictive process could also be utilized to defend carefully negotiated legislation from killer amendments or to protect majority party members from having to take tough votes.
The majority leader frequently uses cloture as a scheduling tool when the Senate considers major legislation. While filing cloture is a time-intensive process, it provides the only clearly established procedure for the resolution of debatable questions in the Senate. Thus, the cloture rule provides a small degree of certainty in an otherwise uncertain environment. The majority leader can use such certainty to his advantage by scheduling votes at the end of the week and immediately prior to a long recess to force an issue. Obstructing senators are less likely to risk the ire of their colleagues by forcing a rare weekend session.
The cloture rule also gives the majority leader the ability to impose a germaneness requirement on amendments to legislation post-cloture. Such a requirement may spare majority party members from having to take tough votes on non-germane amendments. It also protects carefully crafted legislation from poison-pill amendments unrelated to the underlying issue.
Finally, cloture is often utilized by the majority leader for symbolic purposes. By triggering an up-or-down vote on legislation, cloture establishes a clearly defined line of demarcation between the majority and minority parties on controversial issues. Such votes can be presented as take-it-or-leave-it propositions. The proponents of such measures can often portray the senators who vote against them as not supporting the underling legislation.
Without the cloture process, the majority leader would not have these important, albeit limited, tools at his disposal, and he would thus be unable to structure the legislative process to the majority’s advantage using existing Senate rules. When combined with the practice of filling the amendment tree, the cloture process further allows the majority leader to limit the ability of individual senators to participate in the legislative process without having to change the Senate’s rules to reduce their procedural prerogatives.
The fact that the majority leader regularly files cloture early in the legislative process before any actual obstruction can be said to have occurred on a measure is illustrative of the benefits that Senate majorities derive from the cloture process. As the figure below demonstrates, the instances in which cloture has been utilized during the early stages of a measures consideration on the Senate floor have increased dramatically since 2001. This dynamic can be isolated and the majority’s preemptive use of cloture can be more readily discerned by comparing the total number of cloture motions filed in a Congress to the number filed when omitting those motions filed on the first day of a bill’s consideration or very early in the legislative process.
The takeaway from this is that the cloture process may benefit both the majority and the minority parties in the Senate today.