Note 5. Reforming the Filibuster
Are There Reforms Short of Simple-Majority Cloture that Will Improve the Senate?
Perhaps the most controversial feature of congressional policy-making processes and parliamentary procedure is the Senate filibuster. We usually think of the filibuster as unending debate conducted by a minority of senators to prevent a vote on a bill, thereby killing it or forcing compromise. In practice, most “filibusters” simply involve refusal to agree to a time to vote on a motion or measure and forcing a cloture vote to move to action on that motion or measure. Under the Senate’s Rule XXII, cloture on most matters requires a three-fifths constitutional majority—if all 100 seats are filled, that’s 60 votes.
Since 1980, Senate majority parties have had less the 55 seats, on average, which has made the 60-vote threshold impossible for a majority party to achieve without minority votes. Only during the last half of 2009 did a Senate majority hold 60 seats in the Senate. Minority parties have exploited this obstructionist tactic with increasing frequency, leading the majority party to seek cloture votes more frequently.
Obstructionism has evolved from a rare tactic for minority coalitions to a general strategy of the minority party. Between the 1980s and most Congresses since 2007, the number of bills subject to at least one cloture vote doubled (Figure 4-1), up to over 50 measures per Congress and extending to all measures of more than modest importance. Republicans, led by Senator Mitch McConnell, the party floor leader since 2007, are more responsible for this fundamental change in the use of parliamentary weapons than Democrats.
Remarkably, cloture votes on presidential nominations to executive and judicial posts have skyrocketed since 2013 when the Senate minority and the president have been of opposite parties. In October 2013, Democrats forced a change in the cloture threshold for nominations from a three-fifths majority to a simple majority for all nominations except Supreme Court nominations. They did this without directly changing Rule XXII; instead, they imposed the lower threshold by backing a point of order. The point of order violated the plain meaning of the written rule, but a majority of senators can impose their own interpretation of the rules. This twisted logic of this parliamentary move is called the “nuclear option.” Using the nuclear option, Republicans extended simple majority cloture to Supreme Court nominations in 2017 after Donald Trump moved into the White House.
Republicans responded in 2013 and 2014 by refusing to allow most nominations from coming to a vote without cloture. This caused the spike in nominations subject to at least one cloture vote that can be seen in Figure 5-1. That number fell off in the next Congress with a new Republican majority. In the majority, the Republicans did not have to obstruct nominations from the Democratic president, Barack Obama, in order to slow action on them or block them altogether. In 2019-2020, the minority Democrats followed the Republican model and forced cloture votes on most of President Donald Trump’s important nominations. In 2019, the time spent on nomination cloture votes led Republicans to use the nuclear option to reduce the debate limit on nominations for which cloture was adopted from 30 to 2 hours.
The continuing ability of a Senate minority to force a cloture vote and consume 30 hour of debate, and now two hours on nominations, is not a minor matter. A roll-call vote takes a minimum of 15 minutes. When added to the two hours of debate that can be required before a vote on a nomination, the Senate could be required to be in session 225 hours for every 100 nominations that require cloture. In the 116th Congress (2019-2020), in which over 240 nominations required cloture votes, this could have forced over a quarter of all Senate floor time to be spent on nominations. Senators in the minority do not force use of the full two hours in many cases, but it is up to them. The cloture process on nominations—even with a simple majority threshold and two-hour debate limit—is now a central component of a minority strategy to slow Senate action and complicate the majority party’s ability to move its legislative agenda with reasonable efficiency.
The strategic use of obstruction as a general minority party strategy is reflected in the outcome of cloture votes. Since the late 1990s, most cloture motions related to legislation receive a large majority vote that exceeds the 60-vote threshold to invoke cloture. About a quarter of the cloture votes yielded a majority of more than 80 senators in favor of cloture. In the vast majority of cloture votes, these outcomes were fully expected. The major consequences were to use up valuable floor time and add to the number of party-line votes cast.
It is true that majority leaders have developed a quick trigger when it comes to filing cloture petitions and getting a cloture vote. Particularly for nominations, they are eager to waste little time listening to debate without any assurance that the minority will consent to a time to vote. This reaction, of course, reflects the majority leader’s expectation that the minority will slow action and likely deny a vote on a nomination without being forced to do so by successful cloture. The same expectation applies to major bills whenever there is a sign of a partisan division.
“Filibuster reform” continues to be advocated by senators and outsiders concerned about the ability of a minority to block Senate action on legislation. Democrats and liberals, more than Republicans and conservatives, would like to see action on legislation to provide new and expanded federal programs and tend to favor filibuster reform, particularly when they are in the majority. Many Democrats advocated simple majority cloture for legislation, although there always has been some opposition from moderate Democrats. It takes at least a majority vote in favor of a point of order—that is, the nuclear option—to imposed a change so even a Democratic majority cannot readily change the threshold for cloture.
The difficulty of lowering the cloture threshold has led reformers in and out of the Congress to propose alternative paths to easing the obstacles to legislative action in the Senate. Here is a short list of the major ideas that have been advocated:
forcing the minority to actually conduct debate on measures that it opposes;
expanding the range of measures or motions to which simple majority cloture (or another threshold) is applied;
reducing post-cloture debate limits;
requiring the minority to muster a certain number of votes (usually 41) at regular intervals to continue debate;
requiring the minority to muster a certain number of votes (usually 41) to prevent a vote.
Traditionalists quickly point to the fact that the Senate majority rarely forces the minority to take the floor and conduct lengthy debate. Instead, once it is clear that the minority is going to block a motion or measure, the majority moves on to another strategy, usually setting aside the matter and moving to something else. This “silent filibuster” makes obstruction easy. It is argued that forcing senators in the minority to stand on the floor and conduct debate could, over hours, days, or weeks, bring attention to their obstructionism and wear them down. The minority, it is said, would learn its lesson and stop its routine obstructionism.
The majority party leadership realizes that approach is unlikely to work. They are reminded of the failed 1987 Byrd experiment. In 1987, a frustrated Byrd was willing to try the “real filibuster” approach to get action on a high-priority measure—and probably regretted that he did. Byrd already had shown much less patience with filibusters than Mansfield and had a quick trigger when filing cloture petitions. The subject of the real-filibuster trial was a campaign finance reform bill, authored by Senator David Boren (D-OK), that would have capped the total donations a Senate candidate could receive from political action committees and provided public financing to a Senate candidate who accepted spending limits. The bill faced obstruction after the bill was taken up on the Senate floor. Over ten days, Byrd forced five cloture votes, gaining a majority of senators voting each time but never receiving more than 52 votes. Byrd moved to other business and returned to the issue in September when he arranged for two more cloture votes, one of which attracted 53 votes, still far short of the 60 required. He gave up.
No majority leader has constructed a serious endurance test since 1987. We have since had two measures that involved eight cloture votes on two or more specific motions related to them. And the Senate took seven cloture votes on the Miguel Estrada nomination to the D.C. Court of Appeals during the first term of President George W. Bush. In none of these cases did the majority leader make the same effort as Byrd did in 1987 to wear down the opposition.
Including those three items, 22 bills and nominations generated at least five cloture votes since 1989 (through May 2021). In most cases, the number of votes in favor of cloture was no more at the end of the episode than at the start. In the Estrada nomination, for example, there were 56 votes for cloture in early March, 2003, and the same number four-and-a-half months later when Estrada withdrew from consideration. Of course, the Senate conducted other business while the nomination was pending. Estrada was an outlier for nominations, but extended consideration and multiple cloture votes happen several times in many most recent Congresses and seldom produce a switch from cloture failure to cloture success for the majority party.
The idea that the majority can make the minority pay a higher price for obstruction appeals to many observers, even some senators. Most majority leaders, however, recognize two facts. First, the burden of maintaining a quorum during a filibuster falls to the majority. In order to force senators to conduct debate, the Senate must remain in session, which can only happen if a quorum can be mustered when required. The absence of a quorum forces adjournment, which gives everyone a chance to go home without action on the matter at hand. Second, as a debate continues week-after-week, the backlog of other legislation waiting for action, some of which is time sensitive and important to the nation and key constituencies, can build pressure on the majority to set aside the filibustered legislation.
The Senate has accepted debate limits for important categories of legislation. Most notably, budget measures (budget resolutions and reconciliation bills) cannot be filibustered. One approach to reform that is sometimes suggested is to apply debate limits to other kinds of measures (for example, appropriations bills or a bill to increase the debt limit) or motions (for example, a motion to proceed to the consideration of a bill or a motion to go to conference). Other approaches are to reduce the threshold for cloture to a lower number, say 55, to ratchet down the cloture threshold from 60 to a simple majority in steps separated by a few days, or to simply require a three-fifths majority of senators present and voting. Such approaches have received serious discussion but have never made their way into reform proposals that were backed by majority leaders.
An approach backed by many reformers is to transform the majority’s burden of acquiring 60 votes for cloture into a requirement that the minority muster 41 votes to continue debate and avoid cloture. As it is, Rule XXII requires a three-fifths majority of the whole Senate even if no senator shows up to vote nay. On a Friday in May 2021, for example, cloture was defeated on a 54-35 vote on a motion to consider a bill providing for a bipartisan commission to study the January 6 resurrection at the U.S. Capitol—35 senators in the minority defeated a majority and 11 senators had left for Memorial Day weekend.
Requiring the minority to produce at least 41 votes (one more than two-fifths) would increase the burden on the minority to be available to vote. Such a reform would have a marginal effect at most. Since 1989 (and through May 2021), only about 18 percent of all rejected cloture votes (15 percent of cloture votes on legislation) resulted in fewer than 41 senators voting nay. Requiring 41 senators to actually vote against cloture would inconvenience the minority, but my bet is that they would muster the required number most of the time.
A related approach with more bite is to require 41 senators to vote to continue a debate—say, on a daily or more frequent basis. Failure to reach 41 would automatically impose some debate limit or even end the debate.[1] There is no experience with such an approach, but it is reasonable to think that, if the majority should choose to force a live filibuster, the burden on the minority would be much greater than it is under the current rule. Again, the majority would have to shoulder the burden of producing a quorum and delaying action on other matters so this reform, by itself, is unlikely to significantly reduce the tradeoffs for the majority.
Reformers who favor simple majority cloture are reticent to endorse half-way approaches. Many of them do not want to undercut their own normative arguments for majority rule. Moreover, half-way measures have mixed and uncertain support. Designing a new rule (or point of order) would require substantial care in writing the procedures to replace the relevant provisions of Rule XXII and considerable effort to find support for any one plan, even among majority party senators.
The Senate may need a “constitutional convention” of its own to consider how to rebalance majority rule and minority rights, but there is nothing like that in sight. In any such discussions, the minority would insist on guarantees about its ability to debate and have its amendments considered. The entire matter becomes complicated and the outcome quite uncertain, which leaves the reformers concluding that a direct approach—simple majority cloture—is the best approach.
[1] Norman Ornstein, “Democrats Can’t Kill the Filibuster; But They Can Gut It,” Washington Post, March 2, 2021, https://www.washingtonpost.com/outlook/2021/03/02/manchin-filibuster-never-sinema/.