By Jennifer Nicoll Victor, Ph.D., George Mason University
The Cloture Rule was created to force the movement of bills from the committees to the Senate floor. However, over the years, it has gone through some changes. How have the political parties used this to their strategic advantage?
The Cloture Rule
Back in the early 20th century, some senators became frustrated that many bills were stalling in the committees. To fix this, they sought a mechanism to force bills to come to the floor for a vote on their merits, so they created Senate Rule 22, known as the cloture rule.
In Senate-ese, cloture means to end debate and vote on a bill. The establishment of the cloture rule initially alleviated some gridlock in the Senate and provided a mechanism to bring bills to a vote or to force a vote on a presidential nominee for office.
As the 20th century went on, use of the cloture rule evolved considerably. In its current form, dating back to the 1970s, it says that for a bill or nominee to receive cloture it must have the approval of three-fifths of senators. This means that 60 senators must agree to cloture in order for that bill or nominee choice to come to the floor for a vote.
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Filibustering of the Bills
During the middle of the 20th century, senators began to use the cloture rule as a tool to stop legislation. If a bill came to the floor for debate, someone who opposed the bill could filibuster by speaking about the bill and refusing to yield the floor to any other senator.
In fact, the speech didn’t need to be about the bill, it could be about anything, just so long as the speaker did not yield.
Unless 60 votes existed to invoke cloture and force an end to the debate, the filibustering senator could essentially talk a bill to death. Supporters who did not have the supermajority of senators required to invoke cloture would accept defeat and it would be said that the bill was filibustered.
The record for the longest filibuster in US history belongs to Senator Strom Thurmond, a senator from South Carolina, who was a well-known racial segregationist. Senator Thurmond held the Senate floor for a full 24-hours and 18 minutes in his successful attempt to filibuster the Civil Rights Act of 1957.
Learn more about the civil rights.
Winning Cloture in Modern Times
Today, no one talks bills to death anymore. Senators gauge the support for bills and estimate whether or not a bill has enough support to win cloture.
If a bill does not have enough support to invoke cloture, Senate leaders will typically not bring that bill to the floor, knowing that if they do, the chamber’s time will be wasted.
Bills in the modern Senate are still filibustered, but only in this entirely passive and non-dramatic way.
Changes in the Cloture Rule by Democrats
In the fall of 2013, Democrats held the majority of seats in the Senate chamber and were frustrated with their inability to bring President Barack Obama’s judicial nominees to a vote, because Republicans had enough votes to deny the 60-vote limit needed for cloture on the appointments.
In a move of desperation, Democrats dramatically changed the rules of the Senate so that judicial and executive nominees, but not Supreme Court justices, would no longer be subject to the cloture rule.
Changing the rules in this way was called the ‘nuclear option’ because changing the Senate rules through a majority vote was seen as a significant departure from the longstanding norms of the chamber and one that would have major downstream effects.
In the short term, the rule change allowed Democrats to approve a number of judicial appointments in the Obama administration.
Changes in the Cloture by Republicans
Then, as predicted by many, in April 2017, a Republican controlled Senate dramatically changed the rules again to allow for the confirmation of Neil Gorsuch, President Donald Trump’s first nominee to the Supreme Court.
Democrats opposed the nomination and had enough votes to prevent reaching the 60 votes needed for cloture. After a contentious and controversial debate over the nomination, under the direction of Senate Majority Leader Mitch McConnell, a majority of senators voted to change the rules so that even Supreme Court appointments would not be subject to the cloture rule.
Number of Votes needed to get through Senate
From the 1970s until 2013, any bill or nomination required three-fifths support, or 60 senators, to get through the Senate. Now only 51 votes are needed to force a confirmation vote.
The bill or nomination did not require 60 votes to pass, but they required 60 votes to come up for a vote that would allow the Senate to pass or reject them. The actual vote on bills and nominees was, and is, decided by simple majority, or 50% plus one.
From November 2013 to April 2017, judicial and executive nominees, but not Supreme Court nominees, no longer needed to pass the 60-vote threshold to come up for a vote, and since 2017, that now includes Supreme Court nominees.
However, all regular legislation is still subject to the three-fifths cloture rule and can be passively filibustered.
Learn more about how congressional elections are structured.
Effects of the New Cloture Rule
Ultimately, the cloture rule protects minority interests in the Senate. By design, the Senate is supposed to be a body that shows greater deliberation and willingness to protect minorities from the tyranny of the majority.
By allowing a minority of senators, just 41 of them, to prevent a bill from coming up for a vote, a meaningful barrier can be set in place for all kinds of legislation that will come to the floor in the Senate.
The ramifications of this are a mixed bag. On one hand, the Senate considers less legislation than it probably would if it didn’t have the cloture rule, and so the Senate plays the role of stalling or slowing down legislative processes. On the other hand, in a system where so many elected representatives are ideologically polarized, the cloture rule prevents the party with the majority to run roughshod over the party with fewer seats.
In the last decade, both the political parties have used this to their strategic advantage.
Common Questions about the Cloture Rule
The establishment of the cloture rule initially alleviated some gridlock in the Senate and provided a mechanism to bring bills to a vote or to force a vote on a presidential nominee for office.
The record for the longest filibuster in US history belongs to Senator Strom Thurmond, a senator from South Carolina, who was a well-known racial segregationist. Senator Thurmond held the Senate floor for a full 24-hours and 18 minutes in his successful attempt to filibuster the Civil Rights Act of 1957.
From the 1970s until 2013, any bill or nomination required three-fifths support, or 60 senators, to get through the Senate.
