[Access The Judicial Nominations: Part 1. Filibuster, here.]
For 111 years the rules of the U.S. Senate provided no way to bring debate to an end. In 1917, a "curb on the practice" of unlimited debate was adopted.
Cloture. Robert Caro asserts [p. 93] that Rule XXII, the cloture rule, was passed at the instigation of President Wilson, after a bill the President wanted had failed due to a filibuster. (This of course invokes comparisons to recent efforts to satisfy President Bush's call for an "up or down vote" by the full Senate on all judicial nominees.) Unfortunately I have been unable to find details of exactly HOW this change was accomplished in 1917. Was it done at the beginning of a session, or not? Was it done as an amendment to the rules, pursuant to the first paragraph of Rule V, which apparently requires only a majority vote, and which reads:
No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.Presumably, the proposal to put in place a closure rule in 1971 was not filibustered. [Note: I have since located a dissertation containing details of the 1917 rule change. See the end of this entry for information.]
According to information provided on the U.S. Senate's website, cloture has not been very effective:
The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to evoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.Another Senate report on cloture states:
The only procedure Senate rules provide for overcoming filibusters is cloture, which cannot be voted until two days after it is proposed in a petition signed by 16 Senators. Cloture requires the support of three-fifths of Senators (normally 60), except on proposals to change the rules, when cloture requires two-thirds of Senators voting. If the Senate invokes cloture on a bill, amendment, or other matter, its further consideration is limited to 30 additional hours, including time consumed by votes and quorum calls, during which each Senator may speak for no more than one hour.Efforts to effectively evade the filibuster. Moving forward to the 1957 session of Congress, Caro recounts the efforts of liberals to find a way to evade the southern filibuster and enact a civil rights bill:
At a January 2 meeting in Paul Douglas' office * * *, the liberals had decided that Clinton Anderson would offer the same motion he had introduced in 1953, and would have reintroduced in 1955 had not Johnson [not yet a liberal] tricked the liberals out of doing so: that deceptively simple motion to have the Senate adopt rules for the current session. And this year the liberals had a new ally, a very shrewd one. [Vice President Nixon had agreed to take the presiding officer's chair at the crucial moments.] It had therefore been agreed that as soon as Anderson made his motion, Douglas and other liberal senators would ask Nixon to rule on whether it was in order -- on whether, in other words, the adoption of new senate rules was permissible. And Douglas would also ask Nixon, "Under what rules is the Senate presently proceeding?" Nixon would then rule that the motion was in order, because it would be in order under normal parlimentary rules -- and he would rule further that the Senate was at that moment proceeding under standard parlimentary rules because it was not a continuing body but a new Senate which had not yet adopted any rules of its own. [p. 856, emphasis supplied]However (read the details in Chapter 36 of Caro's excellent book), Johnson outsmarted the liberals once again, forcing Nixon to recognize him rather than Anderson, by "demanding the prior recognition that was the Majority Leader's prerogative."
In the end, the liberals could not ask for the ruling
as they had planned to do, but could make only a "parlimentary inquiry" as to what would happen if it became the pending business, and Nixon could not give a ruling but only an "advisory opinion." In his opinion, the Vice President came down strongly on the side of civil rights. The Constitution, he stated, said that each House could determine its own rules, "and this constitutional right . . . may be exercised by a majority of the Senate at any time. When the membership of the Senate changes, as it does upon the election of each Congress, it is the Chair's opinion that there can be no question that the majority of the existing membership" can "determine the rules." Therefore, he said, any "Senate rule adopted in a previous Congress" which denied the right of a majority of a new Senate to adopt rules "is, in the opinion of the Chair, unconstitutional." [p. 858]Under this approach, a majority may determine the rules at the beginning of a session. At the time they do so, they are operating "under normal parlimentary rules," rather than the Senate rules which permit unlimited debate. This would not appear to me to be the case during the course of a session, when a majority of the the Senate might attempt to amend its rules, but such an effort likely would become the subject of a filibuster.
In either case, a "point of order" -- a claim made by a Senator from the floor that a rule of the Senate is being violated -- likely would result. If the Chair sustains the point of order, the action in violation of the rule is not permitted. However, when the Chair rules on a point of order, any Senator may appeal the ruling, in which case the full Senate makes a final decision on the point of order by voting whether to sustain or reverse the ruling. In the current judicial confirmation battles, presumably the Senate majority and the Chair (presiding officer/vice president) are in accord. [Source: U.S. Senate glossary See also Rule XX.]
[Updated 5/12/03] Details on the adoption of the cloture rule in 1917 are available in a 2002 dissertation by Gregory Koger titled "Obstruction in the House and Senate: a Comparative Analysis of Institutional Choice." Access the dissertation here. Of particular interest is chapter 7, "Party Government and Cloture in the Senate, 1913-1919." Mr. Koger's summary: "This chapter explains institutional choice in the Democratic-controlled Senate from 1913-1919. During this period, (1) the Democrats had a strong party caucus; (2) the Senate adopted its first cloture rule in 1917, allowing a two-thirds majority to limit debate; and (3) senators had several opportunities to adopt simple majority cloture but rejected them. I found that strong party organization per se is not sufficient to achieve reform. The 1910s Democrats lacked strong incentives to suppress obstruction and were not especially unified on procedural votes. The 1917 cloture rule was adopted primarily for the act-contingent benefits of adopting cloture reform rather than for any significant change in outcomes or political gain."
Posted by Marcia Oddi at May 10, 2003 10:02 PM