Proposals to Amend the Senate Cloture Rule

CRS Report for Congress
Proposals to Amend the Senate Cloture Rule
Updated February 17, 2005
Christopher M. Davis and Betsy Palmer
Analysts in American National Government
Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Proposals to Amend the
Senate Cloture Rule
Paragraph 2 of Senate Rule XXII, also known as the “cloture rule,” was adopted
in 1917. It established a procedure, amended several times over the intervening
years, by which the Senate may limit debate and act on a pending measure or matter.
Aside from unanimous consent agreements, cloture is the only way the Senate can
limit debate.
Recently, concern by some Senators over an inability to halt consideration and
obtain a confirmation vote on several pending judicial nominations has led to a
renewed interest in amending the Senate cloture rule. One option, called the “nuclear
option” by some and the “constitutional” option by others, would seek to use a ruling
by the presiding officer or a majority vote of the chamber to end debate outside of the
terms of Rule XXII. It is possible that this option may be attempted in the 109th
Several measures were introduced in the 108th Congress to amend the cloture
rule. S.Res. 138, which was introduced by Senate Majority Leader Bill Frist would
have established a diminishing threshold for invoking cloture on presidential
nominations that were subject to Senate approval. S.Res. 85, which was introduced
by Senator Zell Miller, would have applied the same idea to all Senate business, with
the exception of amendments to the Senate’s standing rules. A third proposal, S.Res.
249, also authored by Senator Miller, called for the elimination of the cloture rule
This report provides a brief history of the Senate cloture rule, outlines past and
present proposals to amend it, and presents arguments both in support of, and in
opposition to, the Senate’s tradition of unlimited debate.
This report will be updated as events warrant.

Brief History of the Cloture Rule......................................1
Features of the Present Cloture Rule...................................2
Proposed Changes to Cloture Procedure ................................3
The “Nuclear” or “Constitutional” Option...........................3
Frist Proposal.................................................5
Miller Proposals...............................................8
Statutes and Standing Orders.....................................9
Additional Proposals to Limit Senate Debate.......................10
Arguments in Support of Extended Debate.............................11
Minority Rights..............................................11
No Harm....................................................11
Unique Role.................................................11
Arguments in Favor of Strengthening Limitations on Debate...............11
Majority Rule................................................12
Efficient Action..............................................12
Speech Protected.............................................12
Additional Points.................................................12

Proposals to Amend the
Senate Cloture Rule
Brief History of the Cloture Rule
Proposals to limit Senate debate are as old as the Senate itself. Over the 216-
year history of the body, numerous procedures have been proposed to allow the1
Senate to end discussion and act. The most important debate-limiting procedure
enacted was the adoption in 1917 of the “cloture rule,” codified in paragraph 2 of
Senate Rule XXII. Under the current version of this rule, a process for ending debate
on a given measure or matter may be set in motion following a super-majority vote
of the Senate.
Since the Senate’s adoption of the cloture rule in 1917, proposals have been
advanced to repeal or amend it in almost every session of Congress.2 At times,
Senators of both political parties, as well as the parties themselves, have debated the
merits of the Senate’s tradition of free and unlimited debate and argued for and
against making cloture easier to invoke. These debates occurred at different times
and under different sets of circumstances, for example, as Senators attempted to
prevent filibusters of civil rights measures, pass consumer protection legislation, or
secure the confirmation of judicial or executive branch nominations.
Debates on the cloture rule have frequently focused on whether or not the Senate
must consider amendments to it under the body’s existing rules, including Rule XXII
itself. This argument rests on the principle that the Senate is a “continuing body”
which regards its rules as staying in force from one Congress to the next. A contrary
argument contends that this principle has the effect of “entrenching” the existing
rules against change, a situation which amounts to an unconstitutional limit on the
power of the body to set the terms of its own operation. To overcome these
difficulties, Senators attempting to change Rule XXII have employed various
procedural tactics, including seeking to invoke cloture by majority vote, seeking
opinions by the Vice President acting as presiding officer that the cloture rule itself
is unconstitutional, and arguing that the rules do not apply on the first day of a

1 U.S. Congress, Senate Committee on Rules and Administration, Senate Cloture Rule:
Limitation of Debate in the Congress of the United States, committee print, prepared by thethst
Congressional Research Service, 94 Cong., 1 sess. (Washington: GPO, 1975), p. 61.
2 U.S. Library of Congress, Congressional Research Service, Limitation of Debate in the
United States Senate, by George B. Galloway, (Washington: December, 1956), p. 5; U.S.
Congress, Senate, Debate in the United States Senate: Extracts from the Journal of the
United States Senate Pertaining to Limitation of Debate in the Senate of the United States,
(Washington: GPO: 1917), pp. 1-10.

Although many attempts have been made to amend paragraph 2 of Rule XXII,
only six amendments have been adopted since the cloture rule was enacted in 1917:
those undertaken in 1949, 1959, 1975, 1976, 1979 and 1986. Each of these changes
was made within the framework of the existing or “entrenched” rules of the Senate,
including Rule XXII.3
In 1949, the cloture rule was amended to apply to all “matters,” as well as
measures, a change which expanded its reach to nominations, most motions to
proceed to consider measures and other motions. A decade later, in 1959, its reach
was further expanded to include debate on motions to proceed to consider changes
in the Senate rules themselves. The threshold for invoking cloture was lowered in
1975 from two-thirds present and voting to three fifths of the full Senate except on
proposals to amend Senate Rules. In a change made in 1976, amendments filed by
Senators after cloture was invoked were no longer required to be read aloud in the
chamber if they were available at least 24 hours in advance.4
In 1979, Senators added an overall “consideration cap” to Rule XXII to prevent
so-called post-cloture filibusters, which occurred when Senators continued dilatory
parliamentary tactics even after cloture had been invoked. In 1986, this
“consideration cap” was reduced from 100 hours to 30 hours to meet the demands of
a modern Senate whose proceedings were televised nationally.
Features of the Present Cloture Rule
In its current form, which was adopted in 1986, Rule XXII provides that a
cloture motion must be signed by 16 senators and presented on the Senate floor. One
hour after the Senate meets on the second calendar day after a cloture motion has
been filed and after a quorum has been ascertained, the presiding officer puts the
question, “Is it the sense of the Senate that the debate shall be brought to a close?”
The cloture motion is then subject to a yea-and-nay vote.
If three-fifths of Senators — 60 if there are no vacancies in the body — vote for
the cloture motion, the Senate must take final action on the matter on which it has
invoked cloture by the end of 30 total hours of additional consideration. Invoking
cloture on a proposal to amend the Senate’s standing rules requires a higher
threshold, approval by two-thirds of the Senators present and voting, or 67 senators
if there are no vacancies and all Senators vote. Once cloture has been invoked, the
clotured matter remains the pending business of the Senate until it is disposed of and
no Senator may speak for more than one hour. Senators may yield all or part of their
allotted hour to a floor manager or floor leader, who may then yield time to other
Senators. Each floor manager and leader, however, can have no more than two hours

3 U.S. Congress, Senate Committee on Rules and Administration, Senate Cloture Rule,
Limitation of Debate in the Congress of the United States and Legislative History of
Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule),thst
committee print, 99 Cong. 1 sess. (Washington: GPO, 1985), pp. 15-16.
4 Ibid, pp. 123-124.

in total yielded to him or her. As with most Senate procedures, any of these
requirements may be waived by unanimous consent.
After cloture has been successfully invoked, no dilatory amendments or motions
are permitted, and all debate and amendments must be germane. Only amendments
filed before the cloture vote may be considered, and Senators may not call up more
than two amendments until every other Senator has had an opportunity to do
likewise. Printed amendments that have been available for at least 24 hours are not
read when called up.
Time for votes, quorum calls, and other actions is charged against the 30-hour
limit on consideration. This time limit may be extended by joint leadership motion
if three-fifths of all senators vote for a non-debatable motion to do so. Senators who
have not used or yielded ten minutes of their hour are guaranteed up to ten minutes
to speak. When all time expires, the Senate immediately votes on any pending
amendments and then on the underlying matter.5
Proposed Changes to Cloture Procedure
Concern by some Senators over an inability to halt debate and obtain a
confirmation vote on several pending judicial nominations led to a renewed interest
in the 108th Congress and the 109th Congress in amending the Senate cloture rule. Inth
the 108 Congress several resolutions were introduced on the subject. Proposals
currently under discussion include:
The “Nuclear” or “Constitutional” Option6
Media reports have focused on the possible use of what has been called a
“nuclear” parliamentary option to end debate and vote on certain stalled
nominations.7 Under such a scenario, the chair, perhaps occupied by the Vice
President serving as Presiding Officer or by the President Pro Tempore of the Senate,
would set aside the existing provisions of Rule XXII and rule that cloture could be
invoked by simple majority vote. Supporters of such an approach argue that if such
a ruling were appealed by opponents or submitted to the Senate for decision, and then
sustained by a majority vote, debate would end and the pending business could then
be brought to a vote. In another version of this scenario, a Senator might raise a
constitutional point of order against the decision that cloture had not been invoked
on a matter, and the same end achieved if the point of order were sustained by a

5 CRS Report 98-425, Invoking Cloture in the Senate, by Christopher M. Davis.
6 For more information, see CRS Report RL32684, Changing Senate Rules: The
“Constitutional” or “Nuclear” Option, by Betsy Palmer.
7 Geoff Earle, “‘Nuclear’ Option Retained to Break Filibuster,” The Hill, June 25, 2003, p.

1. Mike Allen, “GOP Plans ‘Marathon’ On Judges; Debate to Spotlight Blocked Nominees,”

The Washington Post, Nov 8, 2003. p. A.01. Charles Hurt, “Senate GOP Fuzzy on Tactics
to Handle Judicial Filibusters; Frist Dodges ‘Nuclear Option’ Query,” The Washington
Times, Sept. 7, 2003. p. A.06.

majority vote of Senators. Supporters argue that this proceeding would be
permissible because under the Constitution, the Senate has the express right to make,
or change, the rules of its proceedings at any time. They further point out that such
constitutional questions are traditionally submitted to a vote of the full chamber for
decision.8 Under this latter scenario, however, the chair would likely have to also
ignore the precedent that constitutional questions are debatable, perhaps by stating
that the body has a right to “get to the question” at hand.
Those concerned about the filibuster of judicial nominations have also argued
that the inability of the Senate to reach a final vote on a nomination represents an
abdication of the Senate’s duty to perform a constitutional duty, that of advising and
consenting to nominations.
Majority Leader Bill Frist told his Senate colleagues on January 4, 2005, that he
was willing to take steps to use one of the “nuclear” or “constitutional” options in the

109th Congress, if he felt it was necessary.

So let me say this: If my Democratic colleagues exercise self-restraint and do not
filibuster judicial nominees, Senate traditions will be restored. It will then be
unnecessary to change Senate procedures. Self-restraint on the use of filibuster
for nominations—the very same self-restraint that Senate minorities exercised
for more than two centuries—will alleviate the need for any action. But if my
Democratic colleagues continue to filibuster judicial nominees, the Senate will
face this choice: Fail to do its constitutional duty or reform itself and restore its
traditions, and do what the Framers intended. Right now, we cannot be certain
that judicial filibusters will cease. So I reserve the right to propose changes to
Senate Rule XXII and do not acquiesce to carrying over all the rules from the last9
Opponents have used the term “nuclear” to describe these scenarios because of
their belief that its use would destroy the comity and senatorial courtesy necessary
in a body that operates largely by unanimous consent. They further argue that such
an approach might destroy the unique character of the Senate itself, making it more
like the House of Representatives, where a majority has the ability to halt debate any
time it wishes.10
Observers point out that such a parliamentary proceeding is not unprecedented.
On several occasions, Vice Presidents acting as presiding officer, including Vice
Presidents Richard Nixon, Hubert Humphrey and Nelson Rockefeller, offered
advisory opinions from the chair that the provisions of Rule XXII can be changed by
a majority vote of the Senate at the beginning of a Congress.11 In 1975, a ruling to

8 Chuck Lindell, “GOP Girds for Filibuster War; Senators Threaten to Use Last Resort to
Clear Judicial Nominees,” Austin American Statesman, Nov. 9, 2003, p. A1.
9 Senator Frist, remarks in Senate, Congressional Record, daily edition, vol. 150 (Jan. 4,

2005), p. S14.

10 Ibid.
11 U.S. Congress, Senate Committee on Rules and Administration, Senate Cloture Rule,

this effect, submitted to the chamber by Vice President Nelson Rockefeller, was
sustained by a vote of the Senate.12 The Senate later reversed itself by recorded vote,
but whether this obliterated the precedent permitting cloture by majority vote has
been a source of disagreement. For example, Senator Robert C. Byrd, the architect
of the 1975 cloture amendment, observed that the reversal vote “erased the precedent
of majority cloture established two weeks before, and reaffirmed the “continuous”
nature of Senate rules.”13 Others argued that such a precedent was established and
was not overturned. Senator Walter F. Mondale observed, “...the Rule XXII
experience was significant because for the first time in history, a Vice President and
a clear majority of the Senate established that the Senate may, at the beginning of a
new Congress and unencumbered by the rules of previous Senates, adopt its own
rules by majority vote as a constitutional right. The last minute votes attempting to14
undo that precedent in no way undermine that right.”
Frist Proposal
In the 108th Congress, Senator Frist introduced another proposal to amend the
cloture rule. His resolution (S.Res. 138) would have added a new section to the end
of Rule XXII, and created a cloture process applicable only to the confirmation of
nominees. Any nomination requiring Senate confirmation would have been subject
to this new procedure, including nominees to the U.S. Supreme Court, the U.S. Court
of Appeals, District Courts, members of the President’s cabinet, and lower-level
agency executives.15
As under the current rule, the new cloture procedure envisioned by Senator
Frist’s S.Res. 138 would have begun with the filing of a written cloture petition that
contains the signatures of 16 Senators, which would lie over before being considered
on the following calendar day plus one. Under S.Res. 138, however, the number of
votes needed to invoke cloture on a nomination would have diminished steadily over
Under the procedure proposed by Senator Frist, as with current practice, the first
cloture petition filed on a nomination would need the votes of 60 Senators for cloture
to be invoked. If 60 Senators did not vote for cloture, a second petition could then
be submitted. When the Senate voted on that petition, just 57 Senators would be

11 (...continued)
Limitation of Debate in the Congress of the United States and Legislative History of
Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule),thst
committee print, 99 Cong. 1 sess. (Washington: GPO, 1985), pp. 23-32.
12 David Miller, “Panel OK’s Measure that Would Change Rules For Approving Judicial
Nominees,” CQ Committee Coverage, June 24, 2003.
13 Robert C. Byrd, The Senate, 1789-1989, Addresses on the History of the United States
Senate, vol. 2 (Washington: GPO, 1991), p. 132.
14 Walter F. Mondale, “The Filibuster Fight,” The Washington Post, Mar. 18, 1975, p. A16.
15 For more information on nominations needing Senate confirmation, see CRS Report
RL31346, Presidential Appointments to Full-time Positions in Executive Departmentsth
During the 107 Congress, 2001-2002, by Henry B. Hogue.

required to invoke cloture. On the third petition, the required vote would fall to 54
Senators, and on a fourth petition the votes of 51 Senators would invoke cloture. The
cloture threshold would never drop below a majority vote of the full Senate. As with
current cloture procedure, there would be no guarantee that the Senate would actually
debate the nomination during the time that the cloture petitions must lay over.
Instead, as is current practice, the Senate could chose to consider other measures or
Senator Frist’s proposal was similar to a proposal to amend Rule XXII offered
in 1995 by Senators Tom Harkin and Joseph I. Lieberman. Under that proposal, the
majority required to close debate on all measures on the executive and legislative
calendars (not just nominees as in the Frist proposal) would decline on successive
cloture votes from 60, to 57, to 54, and finally to 51.16 Additionally, the Frist
resolution would have prohibited the filing of a further cloture petition on a
nomination until the Senate had disposed of other pending cloture motions on that
nomination. Currently, cloture petitions can be filed on successive days, or even on
the same day, without first disposing of the previous petition. In addition, the Frist
resolution would have required that no cloture petition be filed until a nomination
had been pending in the Senate for 12 hours.
The Senate Committee on Rules and Administration held a hearing on the Frist
resolution on June 5, 2003 and ordered the resolution reported by voice vote on June
24.17 On November 12, 13 and 14, 2003, the Senate debated the Frist resolution and
cloture motions on several judicial nominations for a period of 40 hours.18
Supporters of Senator Frist’s resolution have argued that extended debate in the
Senate is particularly troubling when it comes to presidential nominations. John C.
Eastman, constitutional law professor at the Chapman University School of Law, told
the Senate Rules and Administration Committee on June 5 that inherent in the
Constitution is the requirement that nominations be confirmed only by majority vote.
“The advice and consent role envisioned by the Constitution’s text,” Eastman argued,
“is one conferred on the Senate as a body, acting pursuant to the ordinary principle
[sic] of majority rule.”19 Because it takes 60 votes to invoke cloture, the process of
filibustering a nomination is inherently unconstitutional,20 he argued.

16 Text of S.Amdt. 1, Congressional Record, vol. 141 (Jan. 4, 1995), pp. 434-435.
17 Press reports indicate that no Democrats were present at the meeting. See John Cochran,
“Senators Uneasy with Proposal to Alter Filibuster Rule on Judicial Nominations,” CQ
Weekly, vol. 61 (June 28, 2003), p. 1605.
18 Congressional Record, daily edition, vol. 149 (Nov. 12, 2003), p. S14528.
19 Testimony of Professor Eastman, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,st
1 sess., June 5, 2003. The testimony is available online from the committee web site at
[], visited Feb. 14, 2005.
20 For a broader discussion of constitutionality, see CRS Report RL32102, Constitutionality
of a Senate Filibuster of a Judicial Nomination, by Jay R. Shampansky.

Supporters of the Frist resolution contend that the filibuster of nominations takes
power away from the President. “Obstructionist delay in the consideration of either
executive or judicial nominations harms the separation of powers,” said Douglas W.
Kmiec, Dean of The Catholic University of America School of Law. “There is a
constitutional duty to provide timely advice and consent on judicial nominees.”21
While there are other avenues for a Senator trying to get a bill that is being
filibustered through the process (such as by amending some other measure or with
the aid of a House colleague), Senator Frist noted, there is no other way to have a
nomination confirmed except by a vote of the full Senate. “There is no safety valve.
Filibustering nominations is filibustering in its most potent and virulent form, and
even if a majority of Senators stand ready to confirm, such filibusters can be fatal,”
he said.22
Those who oppose the Frist resolution argued that it would tilt the balance of
power too heavily toward the President in the nomination and confirmation process.
They also maintained that there is not enough evidence of a problem to merit
changing one of the basic features of the Senate, the potential for unlimited debate.
Finally, they asserted that such a change could challenge the Senate’s ability to
exercise its constitutional and institutional right to independently assess the
qualifications of nominees.
“If we cede power to the President, I don’t think we’ll ever get it back,” said
Christopher J. Dodd, ranking Democrat on the Senate Rules Committee at the June
5 hearing. “[The Frist] resolution ... would fundamentally undermine the Senate’s
role in our constitutional democracy, cede enormous powers to the Executive and
upset the deliberate system of checks and balances intended by the Framers.”23
Senator Dodd noted that the bulk of President George W. Bush’s nominees have been
confirmed, pointing out that in the 107th Congress, President Bush submitted 347
nominations, of which 297 were confirmed, two were withdrawn and 48 were
returned to him.24 During the 106th Congress, President William Jefferson Clinton
submitted 136 nominations and made 18 recess appointments to full-time positions

21 Testimony of Dean Kmiec, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,st
1 sess., June 5, 2003. The testimony is available online from the committee web site at
[], visited Feb. 14, 2005.
22 Testimony of Senator Frist, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,st
1 sess., June 5, 2003. The testimony is available online from the committee web site at
[], visited Feb. 14, 2005.
23 Testimony of Senator Dodd, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,st
1 sess., June 5, 2003. The testimony is available online from the committee web site at
[], visited Feb. 14, 2005.
24 CRS Report RL31346, Presidential Appointments to Full-time Positions in Executive
Departments During the 107th Congress, 2001-2002, by Henry B. Hogue.

requiring Senate confirmation. The Senate confirmed 108 nominations and returned

24; the President withdrew four nominations.25

“Our paramount and overriding concern should be to protect the role of the
Senate under the Constitution,” argued Senator Edward M. Kennedy. “Under the
[Frist] proposal now before us, the number of votes required to terminate debate on
nominations would be reduced from 60 to 51. A simple majority of the Senate would
be able to end debate, and the Senate would put itself on a course to destroy the very
essence of our constitutional role.” The proposal, “would inevitably lead to pressure
to make the same change for ending debate on legislation.”26
William and Mary law professor Michael J. Gerhardt testified that a filibuster
of a nominee does not completely block the President from filling the vacancy at
issue, pointing out that the President can fill the seat by making a recess appointment,
which would not require Senate confirmation (although the office would be filled
only until the end of the next session) or appointing an acting official under the
Federal Vacancies Reform Act.27
Miller Proposals
Two other proposals to amend the cloture rule were introduced in the 108th
Congress by Senator Zell Miller. Senator Miller introduced a resolution (S.Res. 85)
that would have altered the cloture procedure for all measures, motions, or matters
to come before the Senate. The new process was identical to that proposed by
Senator Frist in S.Res. 138, except where the Frist resolution would have applied
only to presidential nominations, Senator Miller’s proposal to have a gradually
declining threshold for invoking cloture would have applied to all Senate business
except changes to the Senate’s standing rules. Changes to the standing rules would
have still required the votes of two-thirds of those present and voting to stop debate.
On October 22, 2003, Senator Miller introduced a second resolution (S.Res.
249) that would delete paragraph 2 of Rule XXII entirely. Senator Miller argued that
by removing provisions within Senate rules for invoking cloture, it would then
require a simple majority to end a filibuster.28 The cloture rule, however, is the only

25 CRS Report RL30524, Presidential Appointments to Full-Time Positions in Executive
Departments During the 106th Congress, 1999-2000, by Rogelio Garcia.
26 Testimony of Senator Kennedy, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,st
1 sess., June 5, 2003. The testimony is available online from the committee web site at
[], visited Feb. 14, 2005.
27 Testimony of Professor Gerhardt, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,st
1 sess., June 5, 2003. The testimony is available online from the committee web siteat
[], visited Feb. 14, 2005.
28 Editorial, “'Piracy' Allows The Minority To Rule In U.S. Senate,” Tampa Tribune, Oct.

27, 2003, p. A12.

mechanism by which debate can be stopped in the United States Senate.29 Before the
cloture rule was enacted in 1917, it was not possible to stop debate without achieving
unanimous consent.
Statutes and Standing Orders
Another option that has been suggested is to establish procedures to limit debate
by means other than changing Senate standing rules.30 One example of this might
be to amend the standing orders of the Senate, instead of its standing rules. Another
possible example of such an approach would be to pass an expedited procedure
statute. Expedited procedure statutes, often called “fast track” statutes, are laws that
establish special procedures for the consideration of measures in one or both
chambers of Congress. These laws frequently mandate timely floor scheduling, limit
time for committee consideration, floor debate, and amendment, and establish
mandatory ‘hookup’ procedures to ensure that both chambers act on the same
measure.31 Numerous expedited procedure statutes are currently in effect and act as
the equivalent of standing rules of the House and Senate, including such well-known
examples as the Congressional Budget Act, the War Powers Act, the Nuclear Waste
Policy Act, the Trade Act of 1974 and the Congressional Review Act, by which the
Senate can vote on resolutions to disapprove proposed agency regulations.32
A potential advantage of an expedited procedure statute is that it presumably
would only require 60, rather than, 67 Senators normally required to invoke cloture
on such a proposal. This would presumably also apply to amendments to the
Senate’s standing orders. This is because the special provision for cloture on rules
proposals is understood to apply only to amendments to the standing rules.
By relying on statute, provisions of this type might be passed as a freestanding
measure, or attached to another piece of legislation. If supporters thought it aided
them, an expedited procedure statute limiting debate might even originate in the
House of Representatives where they could be attached by special rule to one or more
pieces of ‘must pass’ legislation, creating momentum for their consideration in the
Why would it be appropriate for procedures governing nominations to be placed
in statute? Supporters might argue that it is precisely because they deal with a power
in which both the legislative and executive branches of government are involved.
Such an approach might also offer proponents political arguments over attempts to
change standing Senate rules. For example, supporters might argue, “If it is the law
that the Senate must vote on disapproving government regulations on arcane subjects

29 CRS Report 98-425, Invoking Cloture in the Senate, by Christopher M. Davis.
30 John Cochran, “Lott Has a Better Idea to Stop Senators From Anonymously Blocking
Bills and Nominations,” CQ Today, July 9, 2003.
31 CRS Report RL30599, Expedited Procedures in the House: Variations Enacted Into Law,
by Christopher M. Davis.
32 CRS Report RS20234, Expedited, or “Fast Track” Legislative Procedures, by
Christopher M. Davis.

like migratory birds or the content of upholstered furniture, shouldn’t it be the law
of the land that something as important as nominations for our federal courts receive
an up or down vote?”
Opponents of using expedited procedures or changes in the standing orders
might argue that it violates the spirit of Senate tradition by changing Senate rules
outside the regular process for amending them. Opponents might also argue that
while expedited procedures are fine for a few individual pieces of legislation or
functions, such as disapproving agency regulations, they are not appropriate for an
important constitutional function like the confirmation of presidential nominees.
Additional Proposals to Limit Senate Debate
In its 214-year history, numerous proposals have been put forth to limit Senate
debate.33 These include the following:
!amending Rule XXII to provide for cloture by majority vote;
!adopting a rule providing for the use of a motion for the previous
question, of the type used in the U.S. House of Representatives to
end debate;
!adopting a rule that debate and amendment must be germane to the
subject under consideration, either to all business at all times, or
only to specific business or only at limited times. (For example, to
appropriations and revenue bills, or in the closing days of a
congressional session.);
!limiting the duration of debate by special rule, as in the House;
!enforcing the existing rules of the Senate by requiring a speaking
Senator to stand and not sit or walk around;
!enforcing the rule that “no Senator shall speak more than twice upon
any one question in debate on the same day without leave of the
Senate, which shall be determined without debate”;
!taking a Senator “off his feet” for using unparliamentary language;
!making a point of order against frequent quorum calls that no
business has intervened since the last roll call;
!having the chair rule against dilatory motions on points of order
raised from the floor;
!objecting to the reading of papers;
!enforcing the provision of Jefferson’s Manual that “No one is to
speak impertinently or beside the question, superfluously, or
!letting the chair reverse the precedent, established in 1872, that
Senators may not be called to order for irrelevancy of debate;
!letting the chair make use of the power of recognition;
!letting there be objection to yielding, even though the Senator who
has the floor consents to an interruption; and

33 U.S. Congress, Senate Committee on Rules and Administration, Senate Cloture Rule:
Limitation of Debate in the Congress of the United States, committee print, prepared by thethst
Congressional Research Service, 94 Cong., 1 sess. (Washington: GPO, 1975), p. 61.

!resorting to prolonged or continuous sessions to make it more
difficult on those who want to stage a filibuster.
Arguments in Support of Extended Debate34
Minority Rights
It is a key safeguard of the American system of government that the Senate so
strongly protects the rights of a block of Senators who do not command a majority
(51). Supporters of this argument believe that legislative minorities have rights
which no majority should be able to easily override. Further, they argue, obstruction
is justified to prevent a majority from trampling upon the rights of a minority until
a broad political consensus has developed on an issue. The structure of the Senate
was intended to protect the rights of smaller states, and it is asserted that such a
change would undermine this intent.
No Harm
Defenders of extended debate also contend that, in the long run, matters that are
truly in the nation’s best interest have not been permanently blocked by extended
debate. Nearly every important bill blocked by a filibuster, they maintain, eventually
has been enacted and those bills which ultimately failed because of an extended
debate would have been bad for the country. Likewise, the Senate’s tradition of
debate has protected both political parties at different times in history. The cloture
rule has been in effect for nearing 100 years with little ill effect, they contend.
Unique Role
Supporters of extended debate believe that the ability of any Senator to speak
at length about virtually any topic at any time is a unique characteristic of the Senate
which allows the chamber to play a vital role in the legislative process, cooling
passions and forcing deliberation. Furthermore, supporters argue, this feature was
one that was intended by the Framers, differentiating the Senate from the House.
Removed of this deliberative function, the Senate would become a shadow of the
larger House of Representatives, they say. In addition, because the Senate alone has
the right to act on executive business, nominations and treaties, the function of
extended debate can act as a check on the executive branch.
Arguments in Favor of Strengthening
Limitations on Debate

34 Several arguments from this and the following section are drawn from U.S. Congress,
Senate Committee on Rules and Administration, Senate Cloture Rule: Limitation of Debate
in the Congress of the United States, committee print, prepared by the Congressionalthst
Research Service, 94 Cong., 1 sess. (Washington: GPO, 1975), pp. 55-58.

Majority Rule
The ability of a Senate minority to block actions supported by a clear majority
thwarts one of the basic premises of American government, majority rule.
Supporters of changing the system argue that it is undemocratic to allow a
determined minority to prevent an institutional majority from working its will — the
current process, they say, gives too much power to the minority at the expense of the
majority. Further, they believe, it undermines public accountability of the majority,
which is in charge of running the chamber, if they cannot get their agenda considered
and passed by the Senate because of procedural problems.
Efficient Action
The Senate is a legislative body and should be able to act on matters before it
in a timely and efficient manner. Extended debate by one Senator or a small group
of Senators is to waste time and money, supporters of changing debate rules argue,
and brings public disrepute because the Senate cannot act in a timely fashion on
important issues. Much legislation and several qualified nominations have been
delayed or defeated by extended debate, they contend.
Speech Protected
Changing the rules would not inhibit freedom of speech in the Senate. Current
proposals to change the rules would provide those who oppose a bill or matter
significant time to discuss the proposal, but would not allow them to block action on
it if a majority of the Senate supported it. All a limitation on debate demands,
supporters say, is the ability to have a fair up or down vote; it does not mandate a
particular outcome.
Additional Points
Other points raised during discussion of the cloture issue include the following:
!Some argue that a number of Senators might view proposed changes
to the cloture rule as a diminution of their rights, by making it much
more difficult to block confirmation of a nominee. As a result, if the
rules change is adopted, it raises the question whether it would
increase pressure to require Senate confirmation for more executive
branch positions, so as to allow the Senate to retain a robust role in
the confirmation process.
!The rule change proposed by the Frist and Miller resolutions would
apply to all presidential nominations. Some have wondered whether
nominations for the courts, the third branch of government, should
be treated the same as those to the executive branch or whether the
two groups of nominations should have different thresholds for
approval or different procedures for stopping debate.

!Could stronger enforcement of existing rules — such as the two
speech rule — and disallowing informal but time consuming
practices — such as suggesting the absence of a quorum — permit
more efficient action on nominations or other matters? Is the greater
use of filibusters a sign that traditional checks and balances in the
nomination and confirmation system, such as the blue-slip which
affords home-state Senators a great deal of say in selecting
individuals for the federal bench, are no longer working as they were
intended or have in the past?