Filibusters and cloture
The standard account of Senate obstruction goes something like this:
The Senate’s lax rules of procedure empower its increasingly polarized members to obstruct the majority party as it tries to enact its agenda and confirm presidential nominations over their objections. Minority-party senators filibuster legislation and nominations favored by the majority party. In response, the majority party tries to overcome minority-party filibusters by invoking cloture- ending debate- on the underlying question. But cloture also empowers the minority party because today’s Rule XXII- the cloture rule- requires a three-fifths majority of senators duly chosen and sworn (typically 60 senators) to end debate on legislation and nominations over its objections.
In 2013 and 2017, Senate majorities reduced the number of votes required to overcome a filibuster of presidential nominations from three-fifths of senators duly chosen and sworn to a simple majority of senators present and voting (typically 51 senators). In doing so, they limited a minority’s ability to obstruct presidential nominations by filibustering them. However, the Senate’s rules and practices still require a three-fifths majority of senators duly chosen and sworn to end debate on legislation.
Notwithstanding the reduction in the number of votes required to invoke cloture on nominations, Senate minorities are still able to obstruct the confirmation process. This obstruction results because Rule XXII stipulates that one calendar day must transpire between filing cloture and voting to invoke it. The entire process can consume days of scare floor time. Consequently, cloture slows floor business and limits the number and nature of legislation and nominations that the Senate can approve. Three respected political scientists have referred to cloture’s “60-vote requirement” as “a stranglehold on the Senate.”
Regardless of a senator’s motive for filibustering, the immediate effect of him or her doing so is to protect the status quo. The filibuster was seldom used during the 1940s and early 1950s because the conservative coalition that controlled the Senate wanted to preserve the status quo and used its power over the institution’s committee system to do so by refusing to move legislation to the floor that they opposed. However, senators in both parties filibustered legislation and nominations more often beginning in the late 1950s. Today’s senators filibuster most legislation and nominations that the Senate considers. We know this because the number of cloture votes has increased dramatically over the last several decades.
Most observers document the increase in Senate filibusters by tallying the number of cloture votes in a given Congress or during a presidential administration. For example, a recent Politico report on Democratic obstruction in the confirmation process points to the number of cloture votes as evidence that “the Senate’s confirmation process is nearly broken.” The report claims that “the numbers show it’s a race to the bottom.” And it asserts that the minority party is to blame.
“With Senate leaders gutting the chamber’s supermajority requirement for nominees, delaying an eventual confirmation is now the only tool the Senate minority has to fight nominees they oppose. Any one senator can do it, and there’s enormous political pressure from the opposition party to resist nominees of a sitting president — especially a controversial figure like Trump.”
— Politico (June 8, 2020)
Cloture votes are not an accurate measure of minority obstruction. The number of cloture votes is undoubtedly related to minority obstruction. And cloture votes have also increased significantly in recent years. But minority obstruction is not solely responsible for that increase. In suggesting otherwise, the standard account of Senate obstruction overlooks the many advantages that cloture gives to Senate majorities and the majority leader more specifically.
The Senate’s increased reliance on cloture to overcome filibusters has benefitted the majority leader considerably. In recent years, the majority leader has used cloture preemptively to speed consideration of legislation and nominations regardless of the debate time senators allocate for them on the floor. Cloture has also empowered the majority party- and its leader- to limit the ability of minority party senators to debate measures and offer amendments under the Senate’s rules. Senate majorities have used cloture in anticipation of expected minority obstruction. And they have used cloture to enact their agenda expeditiously and without changes. The majority leader may also use cloture’s restrictive procedures to protect carefully negotiated legislative deals from so-called poison-pill amendments and to protect fellow partisans from having to cast what they perceive to be politically damaging votes.
The majority leader has used cloture as a scheduling tool. While cloture is a time-consuming process, it provides the only clearly established procedure for the resolution of debatable questions on the Senate floor. Cloture, therefore, provides senators with a small degree of certainty in an otherwise uncertain environment. In the past, the majority leader has used that certainty to his party’s advantage by scheduling votes at the end of the week and immediately before a long recess to force action on controversial issues. Placed in such situations, opposition senators have consistently proven to be less likely to filibuster. This suggests that they do not want to inconvenience their colleagues by forcing a rare late-night or weekend session.
Cloture has also empowered the majority leader to limit the floor amendments senators may offer to legislation. It does so by imposing a germaneness requirement on all amendments proposed after senators have agreed to invoke cloture. A germaneness requirement may spare majority-party senators from having to take politically damaging votes on non-germane amendments. It also serves to protect carefully crafted legislation from amendments unrelated to the underlying issue.
The majority leader has also used cloture for illustrative purposes. When done so effectively, the procedure establishes a clearly defined line of demarcation between the majority and minority parties by triggering an up-or-down vote on legislation or a presidential nomination. The majority leader may cast such votes as take-it-or-leave-it propositions. In doing so, the majority party can portray the senators who vote against cloture as not supporting the underlying question.
Without the cloture process, the majority leader would not have these important, albeit limited, tools at his or her disposal. Consequently, the majority leader’s ability to structure the legislative process to the majority party’s advantage would be limited. Cloture is not merely a procedural tool that Senate majorities use to overcome minority filibusters. The increase in cloture votes also documents the effort of majority parties and majority leaders to expand their control over the Senate.