Minority Rule – The Senate Hold & Closure Rule

Let’s start with a personal opinion, I have no problem with the “historic filibuster” where a Senator took the floor and held it to stop/delay a vote, ala Rand Paul’s 13 hour filibuster back in 2013 against the “danger of drone attacks” or his 10-½ hour filibuster against NSA in 2015.  The longest filibuster was Strom Thurmond’s (D-SC) filibuster of the Civil Rights Act of 1957.

But there are two Senate Rule that lead to Minority Rule:

Hold By A Senator

Sections 2 and 3 of Rule VII (Morning Business) of the Standing Rules of the Senate outline the procedure for bringing motions to the floor of the Senate. Under these rules, “no motion to proceed to the consideration of any bill…shall be entertained…unless by unanimous consent.” In practice, this means that a Senator may privately provide notice to his/her party leadership of intent to object to a motion. The leadership can more easily schedule business if they know in advance which unanimous consent requests are likely to receive objection.

The original intent of these sections was to protect a Senator’s right to be consulted on legislation that affected the Senator’s state or in which a senator had a great interest. The ability to place a hold would allow that senator an opportunity to study the legislation and to reflect on its implications before moving forward with further debate and voting.

According to Congressional Research Service research, holds were not common until the 1970s, when they became more common due to a less collegial atmosphere and an increasing use of unanimous consent to move business to the floor.

Holds, like filibusters, can be defeated through a successful cloture motion. However, the time required to bring around a cloture vote often allows fewer than 40 senators to block unimportant legislation when the majority is not willing to force the vote. The countermeasure to excessive holds may be increased determination on the part of the leadership to bring up measures despite holds, but the delay involved in cloture votes constrains the leader’s ability to do this.  [Wikipedia]

So by this rule a single senator can stop a bill from coming to the floor unless there is a cloture vote.

Senate Cloture Rule/Process

Cloture is the only procedure by which the Senate can vote to set an end to a debate without also rejecting the bill, amendment, conference report, motion, or other matter it has been debating.  [Congressional Research Service]

The process of Cloture (rule 22), it is a six step process:

  • First, at least 16 Senators sign a cloture motion (also called a cloture petition) that states: “We, the undersigned Senators, in accordance with the provisions of Rule XXII of the Standing Rules of the Senate, hereby move to bring to a close the debate upon [the matter in question].”
  • To present a cloture motion, a Senator may interrupt another Senator who is speaking.  When the motion is presented, the clerk reads it.
  • The cloture motion then lies over until the second calendar day on which the Senate is in session.  For example, if the motion is filed on Monday, it lies over until Wednesday, assuming the Senate is in session daily. If the motion is filed on Friday, it lies over until Tuesday unless the Senate was in session on Saturday or Sunday.
  • The Senate votes on the cloture motion one hour after it convenes on the second calendar day after the cloture motion was filed and after a quorum call has established the presence of a quorum. The time for the cloture vote may be changed by unanimous consent, and the required quorum call is routinely waived.
  • The presiding officer presents the cloture motion to the Senate for a roll-call vote at the time required by Rule XXII, even if the Senate had been considering other business between the time the cloture motion was filed and the time for voting on the motion arrives.
  • The majority required to invoke cloture for most business is three-fifths of the Senators duly chosen and sworn, or 60 votes if there are no vacancies in the Senate’s membership.  However, invoking cloture on a measure or motion to amend the Senate’s standing rules requires the votes of two-thirds of the Senators present and voting, or 67 votes if all 100 Senators vote.  Additionally, under a November 21, 2013, precedent established by the Senate, [Harry Reid’s nuclear option]  invoking cloture on presidential nominations to positions other than the Supreme Court of the United States requires a vote of a majority of Senators present and voting, or 51 votes if all 100 Senators vote.

There are parliamentary maneuver frequently used:

“Although not explicitly provided for in Senate rules, it has become common practice for the majority leader to make a motion to proceed to consider a measure, immediately file cloture on that motion, and then withdraw the motion to proceed. This allows the Senate to conduct other floor business while the cloture petition is “running” in the background. At the time appointed by Rule XXII, the cloture petition on the motion to proceed is automatically laid before the Senate for a vote.” [op. cit.]

“Should a cloture motion be defeated, the majority leader may enter a motion to reconsider the cloture vote. This allows the majority leader to call up the motion at a subsequent time when he feels he has the votes and thereby obtain an immediate second vote on cloture.” [op. cit.]

On January 24, 2013, the Senate amended Senate Rule XXII to establish an additional, optional process of invoking cloture on a motion to proceed that differs in some respects from the procedures described above.  Under this process, if a cloture motion filed on a motion to proceed to consider a measure or matter is signed by both floor leaders, seven additional Senators not affiliated with the majority party, and seven additional Senators affiliated with the minority party, it will be eligible for a vote on the next session day (as opposed to the second day of session, as would otherwise be the case). If cloture is invoked, the vote will immediately be put on the motion to proceed without the usual 30 hours of post-cloture consideration.  [op. cit.]

History

… in 1917, senators adopted a rule (Rule 22), at the urging of President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as “cloture.”  The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain. Over the next five decades, the Senate occasionally tried to invoke cloture, but usually failed to gain the necessary two-thirds vote. Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, including anti-lynching legislation, until cloture was invoked after a 60 day filibuster against the Civil Right Act of 1964. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the current one hundred senators.  [US Senate]

Conclusion

In the best of all worlds the cloture rule would simply require a bi-partisan agreement to invoke cloture.  But in today’s partisan environment we have situations like:

… hours after Justice Antonin Scalia’s death last February, Senate Republican leader Mitch McConnell announced that there would be no hearings, no votes, no action whatsoever, on any Supreme Court nomination until the American people got to vote on a new president.  [NPR]

This wasn’t technically a “hold” but had the same effect, except there was no option of cloture.

The Washington Post found seventeen bill that had passed the House would likely have passed the Senate (2009 – 2012) except for filibuster/cloture:

111th Congress [Senate (57-D, 41-R, 2-I) – House (255-D, 179-R)

  • DREAM Act (56 – 43)
  • DISCLOSE Act (57 – 41)
  • Employee Free Choice Act (EFCA) (51 – 48)
  • Public option (filibustered)
  • Paycheck Fairness Act (58 – 41)
  • Permanent middle-class Bush tax cut extension (53-36)
  • Rescinding of the upper-income Bush tax cuts (53 – 37)
  • Public Safety Employer-Employee Cooperation Act (55 – 43)
  • Emergency Senior Citizens Relief Act (53 – 45)
  • Creating American Jobs and Ending Offshoring Act (53 – 45)

112th Congress [Senate (51-D, 47-R, 2-I) – House (198-D, 241-R)]

  • American Jobs Act (50 – 49)
  • The Buffett rule (51 – 45)
  • Teachers and First Responders Back to Work Act of 2011 (50 – 50)
  • Repeal Big Oil Tax Subsidies Act (51 – 47)
  • “Shared Sacrifice”  resolution (51 – 49)
  • Withholding Tax Relief Act of 2011 (57 – 43)

Filibuster by year (1991 – 2012)

Filibusters Majority
Republican Democratic House Senate
1991-92 60 Dem Dem
1993-94 80 Dem Dem
1995-96 82 Rep Rep
1997-98 69 Rep Rep
1999-2000 71 Rep Rep
2001-02 71 Rep Dem
2003-04 62 Rep Rep
2005-06 68 Rep Rep
2007-08 139 Dem Dem
2009-10 137 Rep Dem
2011-12 104 Rep Dem

In this age of hyper partisanship this will likely remain the situation until the rules are changed, allowing majority rule, or a third party evolves with more that 10 members.

 

 

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