I am reminded, again, as we file cloture, that the motion to invoke cloture is a motion to end debate. I am always amused by that phrase, “end debate.” How do you end debate that you haven’t even started? [1]

–Senator Tom Daschle (D-SD), Former Senate Majority and Minority Leader

Senator Chuck Grassley of Iowa recently introduced a resolution to change the rules of the Senate. In an effort to curb the practice of moving to cut off debate on the same day consideration of a bill starts, the Stop Cloture Abuse Resolution (S.Res.382) would require Senators to wait 24 hours before filing a cloture motion. Senator Grassley’s resolution, though unlikely to pass, would be an important step in ensuring that the Senate remains a place where political minorities have a fair hearing, and where legislation is slowly and thoughtfully considered.

The Role of the Senate

Much of Senator Grassley’s speech introducing the SCAR was actually not about the resolution itself. He spoke at length about the role the Senate is supposed to play in producing legislation. In the nearly 230 years since the Constitution went into effect, it has been understood that the popularly elected House, with its frequent elections, is a majoritarian institution – that is, it is deliberately designed to allow a well-organized majority to work its will. The Senate’s purpose in our constitutional system, with it’s perpetual quorum created by staggered, six-year terms, is to protect the rights of the political minority from being overridden by the will of the majority. When introducing the resolution, Senator Grassley argued that the Framers of the Constitution established the Senate to be a more thoughtful, judicious and deliberative body than the more briskly acting House. He quoted extensively from James Madison, who argued that a Congress with only a single, large, majoritarian body would “yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”  George Washington more famously explained to Thomas Jefferson why we have a Senate. As the story goes, Jefferson was abroad when the Constitution was drafted. So Washington told him that just as hot tea is poured into a saucer to cool it, so we send legislation from the House to the Senate for the same reason.

True to the intent of the Framers, the Senate has a long history of slow debate. Traditionally, this has included the right of Senators to debate and amend a bill as much as they please. As the old line goes, in the Senate, there are only two rules: unanimous consent and exhaustion. Senators either develop a consensus that it is time to vote on something or they get so tired of talking about it that they simply set it aside.

How to Stop a Debate: Cloture and Filling the Tree

Despite the tradition of unlimited debate and amendment, it is possible to limit debate without unanimous consent, principally through two ways: cloture and filling the amendment tree. Senate Rule XXII allows for the body to end debate on a bill, amendment or motion, by invoking cloture. The rule was adopted in March 1917, when the Wilson Administration wanted to pass a bill to arm merchant ships to protect them against German aggression during WWI. Since then, the rule has been modified a handful of times, and to obtain cloture today, 16 members may file a petition to invoke cloture to cut off debate. Once the petition is filed, it must “ripen” for 48 hours before it may be voted on. An hour after the Senate convenes on the second day after the filing, the body votes on the cloture motion. If the matter under consideration is a bill, it requires “three-fifths of the Senators duly chosen and sworn”—60. If the matter under consideration is a rules change resolution (like Senator Grassley’s SCAR), the cloture petition requires “two-thirds of the Senators who present and voting” on the matter; in practice, that would be 67, since rules changes are so momentous. Following a successful cloture vote, debate is limited to 30 hours, and only germane amendments may be considered after it is invoked. Non-germane amendments, even if they were submitted before cloture was invoked, become impermissible.

When the Senate votes on a cloture petition, the presiding officer announces the question: “Is it the sense of the Senate that the debate shall be brought to a close?” From that, it is fair to infer that the intent of the filibuster is to end a debate once an overwhelming majority of the body determines that enough is enough. However, that is not always the case. The current Senate Majority Leader Harry Reid of Nevada has made a regular practice of making a motion to proceed to a bill, filing a cloture petition, and then go on to other business while allowing the two-day waiting period for the cloture petition vote to expire. So much for unlimited debate and amendment. By going directly to a cloture vote, Reid is able to undermine the Senate tradition of unlimited debate and open amendments.

The practice of filling the amendment tree is another way the Majority Leader can curb curbing the tradition of open debate. Each bill may only carry so many amendments at one time, and they can be diagrammed on a chart that looks like a number of branches protruding from a tree. By precedent, the Majority Leader has the right of first recognition at the beginning of debate, and Senator Reid will often use that prerogative to offer a full complement of amendments, so each branch has an amendment, preventing others from offering amendments. Perhaps that would be all well and good if the amendments were worthwhile, but when a Majority Leader fills the tree, they are generally meaningless and simply designed to block all Senators from offering their own substantive amendments.

Debate in the Senate Today

Amending legislation has become increasingly difficult in the Senate today. Senate Majority Leader Reid has filled the amendment tree more than any of his predecessors, including his Democratic colleagues. Senator Reid took control of the Senate during the 110^th Congress; by the end of the 111^th Congress, he had filled the amendment tree 44 times. The frequency of tree filling had steadily increased since the 1980s, but this number is off the charts. For instance, in the same length of time, Senate Majority Leader Bill Frist, a Republican from Tennessee, used the practice only 12 times (108^th and 109^th Congresses). Another Democratic Majority Leader, George Mitchell of Maine, filled the tree only 10 times in 6 years.[2]

The use of the tree has become so frequent that the Senate Republicans have made repeated, unsuccessful motions to table Senator Reid’s amendments. However, the amendment-forestalling tactics affect Democrats just as they do Republicans. This practice of blocking the minority from offering any amendments has an even more pernicious effect on members of the majority party in the Senate than a closed rule in the House does.  Under a modified rule in the House, the majority can make amendments offered by House members of the majority party.  Under Senator Reid’s system, minority members are blocked from offering amendments – but so are Senators from the majority party.  Many vulnerable Democrats Senators find themselves running for reelection without a record of accomplishment because Senator Reid has blocked any amendments he might offer with the tactics he is using to block the Republicans.

Senator Reid’s tactics are, arguably, harming Democrats that would like to amend legislation. Take, for instance, the National Defense Authorization bill. Two Democratic Senators, Claire McCaskill of Missouri and Kirsten Gillibrand of New York, had two conflicting proposals to reform how the military addresses sexual assault in its ranks. The plan was to have them vote on the proposals as amendments, but, in late November 2013, when Reid attempted to plan a vote for them, Republican Senators objected, saying that they would permit the votes if Republicans were allowed to offer amendments. Reid refused to guarantee GOP amendments on the bill, which is traditionally amended a number of times on the floor. Did Republicans want to block the sexual assault reforms? Certainly not. The National Defense Authorization eventually passed with a number of provisions to clean up problems with how the military handles sexual assault cases. Senator Gillibrand also proudly writes on her website that she has 11 Republican supporters of her legislation. Likewise, Senator Claire McCaskill touts her bipartisan credentials on the matter. In the end, what it came down to for these amendments was that the process was closed, meaning these two Democratic Senators were denied an opportunity for Floor votes that they had been anticipating.

Under Senator Reid, like with instances of filling the amendment tree, the number of first-day cloture votes has increased exponentially. According to Senator Grassley, since 1987, there has been on average 29 first-day cloture petitions per Congress. He concedes that in the years leading up to the Democratic takeover, when the Republicans were in control, there was a general uptick in the use of the practice, but under the current Majority Leader, the number of these filings has gone through the roof. In the 110^th Congress, there were 98. In the 111^th and 112^th Congresses, it fell back to 65 and 67, respectively, but this is still twice the average for the past 27 years. (Incidentally, we did rough estimate of the number of first-day cloture petitions from this Congress and that of the last Republican-controlled Senate, and we can confirm there has been a substantial increase in the number of first-day cloture petitions.)   In effect, the Majority Leader has destroyed the Senate’s traditional and hitherto almost-sacred right of open amendments by essentially using an offensive filibuster to block any amendment he does not like.  This has the same effect of a closed rule in the House.

Cloture petitions are traditionally a tool of the Majority Leader to end a subject that has been debated in full. “Cloture should not be used to prevent any meaningful deliberation from taking place”, as Grassley stated. Regrettably, first-day cloture petitions have become all too common under Senator Harry Reid.

Poison Pills? Or Just Bitter Pills?

The majority party leadership typically closes off the process to protect its members, particularly vulnerable Senators up for reelection, from having to make difficult votes on potentially embarrassing amendments or legislation that shows a lack of support for the party’s or the Administration’s policies. The majority charges that such motions are not serious attempts at legislating, but rather “November amendments” or poison pills. Or they charge that the minority just wants to filibuster anything. Or some combination of the above.

A November amendment, as you might guess, is designed to embarrass a vulnerable Senator in the next election by forcing them to take a difficult vote.  Forcing a Democrat to vote on a repeal of Obamacare would be an example.  A “poison pill” amendment is one that if passes, makes a bill so onerous to its sponsors that they typically withdraw the underlying bill.  An example was a 2011 measure that would have repealed the District of Columbia’s gun laws, attached to a bill designed to give the capital’s citizens a full voting representative in Congress.

The problem with locking out the minority on the grounds that they are offering “November amendments” or “poison pills” is that so often, like so much else in politics, it is simply a matter of perspective.  Who is to say an amendment is a poison pill or November amendment and not a serious attempt at legislating? And to be somewhat puckish, we’ll also point out that winning the majority is the minority’s business. It’s awfully hard to lead the country from the minority. We make this point somewhat in jest—obviously, offering poison-pill amendments does enrage the majority, which then shuts down the process, which enrages the minority, which retaliates, which enrages the majority, and so on. Even the minority should do its best to be constructive. But the congressional majority needs to be ready to deal with a certain degree of politicization of the process. If a majority is so vulnerable to political maneuvers in the legislative process, they probably need to do some work on growing their support among their constituents.

Aside from poison pills, another major reason cited for closing the process is filibusters. If there is to be a body where minority rights are protected, there must be a way for the minority Members to prevail upon the process. The filibuster is the way the Senate satisfies that requirement. Even if the filibuster were being abused—which is a highly subjective judgment and one that people of good will can disagree about—it would not invalidate the proper use of the practice. Unfortunately, we are also not in an era where there will be much agreement on what is considered an abuse of the filibuster. The two political parties have drifted further and further apart from each other over the past few decades, making one’s opponents seem less and less reasonable. If each party sincerely thinks that its policies are correct and that the opposition’s will be harmful for the country, then it makes perfect sense for them to do what they can to prevent bad laws from being passed. Voters might be receptive to this argument. A March 2014 USA Today/Bipartisan Policy Center Poll found, “54% of Republicans and 51% of Democrats say blocking bad laws should be [Members’] priority.” Incidentally, the poll also found that increasing numbers of Americans—40 percent—think that it is a good thing that the two parties are so divided. If support for divided parties increases, the frequency of filibusters will probably increase as well.

It’s often objected that the filibuster allows Senators who represent a tiny minority of the country thwart the will of the overwhelming majority of the population. This may not be a bad thing. In fact, at times it could be rather good. The United States is a massive country with phenomenally diverse communities. Each of these communities depends on the others. If not for the rural, farming states, the more densely populated, urban states on the coasts would find it a lot harder to get by. And the urban areas provide plenty of benefits to the rural areas. Their needs and interests are sometimes different, sometimes flat out contradictory, but they must be met somehow or another. Yet the smaller communities would be steamrolled by the larger ones if not for the equal representation of the Senate. So whichever party is in power, whether it be the Democrats or Republicans, needs to move beyond the idea of simple majoritarianism; instead, a more consensual legislative process is necessary.

Regular Order: The Healthy Alternative to Closing the Process

If the majority party wants to avoid the poison pill amendments and filibusters, perhaps one of the best ways to do it is to secure bipartisan support from the get-go. It is a nearly inescapable phenomenon in every legislative body in the world that if you do not allow the minority to participate in the shaping of legislation, you leave them with no option but to obstruct. Senator Reid’s actions blocking minority participation in the amending of legislation are perversely self-defeating: They just invite more obstruction from Republicans, not less. Paradoxically, the answer to more obstructionism is more bipartisanship, not less.

Start the legislative process at the committee level, not from the leadership offices. Get the buy-in of the committee’s Ranking Member. Work the bill slowly. Invite input from the minority both on and off the committee. Develop consensus, and then bring it to the Floor when it is apparent a sizeable chunk of the minority will support it. Yes, permit the minority to offer amendments. Don’t fill the tree.

Securing the support of a considerable portion of the minority is crucial to protecting against politically charged amendments. At the risk of stating the obvious, Members who’ve who have participated in shaping legislation in committee and through constructive amendments won’t want to see it derailed, least of all by their colleagues from their own party. Those who would like to see the measure go through would put immense pressure on those who would otherwise hijack the process. The number of minority Senators needed is not huge—only 5, although 7 or 10 would be great.

It is without a doubt possible to secure at least 5 minority votes on most legislation by slightly moderating a bill. In the Senate, we are most familiar with the majority that is made up of the party that controls the Chamber. But in reality, there are other majorities based on regional, industrial and other interests-in-common.  These two types of majorities do not always coincide.  For instance, since there are no Democratic cows or Republican corn stalks, agricultural interests can work together across party lines to create working majorities in the interest of farm states.  Energy-producing states might band together to defeat amendments proposed by states that are net energy consumers.  And so on.  The Senate’s partisan majority need not win every vote—sometimes the natural, cross-party interest-based majority should have its day. For instance, many Republicans and Democrats agree that Obamacare’s tax on medical devices is bad policy. According to USA Today, even lawmakers from the liberal states like Massachusetts and Minnesota have supported the repeal, but Congress still has not managed to pass legislation doing so. This would be an excellent policy matter on which to try a more open process. A number of Democrats might appreciate it. Earlier this year, one of the main proponents of repeal, Democratic Senator Amy Klobuchar of Minnesota, was quoted as saying, “I would like to take one of the bipartisan bills and allow for a more open amendment process.”

If you don’t think that would work, just consider that Senator Grassley’s speech took place on a day when the Senate voted on S. 1086, the Child Care and Development Block Grant Act of 2014, which was considered under regular order, where there was no cloture vote at all. This bill was drafted in a bipartisan manner and when it came to the Floor, it was open to amendments—without being subject to poison pills or extraneous matter. For instance, Senator Tom Coburn of Oklahoma said, “Now I don’t want to put the Senate through a timely vote when I know what the outcome is going to be, so I won’t call up that amendment” (Congressional Record, March 13, 2014, page S1607).

S. 1086 passed overwhelmingly, 96-2. Tea Party favorites Senators Ted Cruz of Texas and Rand Paul of Kentucky voted on the same side as liberal lions Senators Elizabeth Warren of Massachusetts and Patrick Leahy of Vermont. The Democratic sponsor of the bill, Senator Barbara Mikulski, said during the course of the debate:

I think it is a great victory for the Senate to show that we could govern ourselves with an open amendment process. We could do it diligently, we could do it deliberatively, and we could do it with courtesy and civility. This is the way the Senate should be. Within 2 days we have arrived at a great bill, with cooperation and civility on both sides of the aisle. I hope this becomes a model for the way the Senate will conduct itself for the rest of the session. [Congressional Record, 13 March 2014, S1616]

And once the bill was laid before the Senate by unanimous consent, the Members completed their consideration of the matter in about 24 hours or so.

Conclusion

The debate on S.1086 shows that the Senate can still work, at least when it wants to. However, it would still be worthwhile for the Senate to consider Grassley’s resolution. In the face of the increased use of the first-day cloture, the effect of Senator Grassley’s resolution is obvious. It is an attempt to preserve the Senate as a place where lawmakers can examine legislation without imprudent haste. Although Senator Grassley’s resolution tries to preserve the traditional character of the Senate, practically speaking, the matter will go nowhere as long as Harry Reid is the Majority Leader. “I am quite disappointed in my friend, the senior Senator from Iowa”, The Hill reported Reid as saying. He derisively continued, “He has a view of reality that only exists in fairy tales…My friend from Iowa is living in a dream world.” Senator Reid would not even consider advancing Senator Grassley’s petition, and even if Senator Grassley could get a vote, a rules change would require a two-thirds vote to end debate, which is an incredibly high threshold for a controversial measure.

Senator Grassley’s 24-hour cloture petition layover resolution would never pass as long as Harry Reid is the Majority Leader, as he himself as admitted. But there is an election looming and even Democrat prognosticators are suggesting that the voters might have a mind to turn the Senate over to a Republican majority next year and end the reign of Reid.  Perhaps now Senator Reid should reconsider his refusal to entertain Senator Grassley’s resolution—the change might come in handy for him next year if he’s in the minority.

(This post has been updated from a previous version.)

Works Consulted

• Arenberg, Richard A. and Robert B. Dove. Defending the Filibuster: The Soul of the Senate. Bloomington: Indiana University Press, 2012.
• Davis, Christopher M. Invoking Cloture in the Senate. Washington: Congressional Research Service, 2013.
• Oleszek, Walter.  Congressional Procedures and the Policy Process. 9^th Ed. Los Angeles: Sage-CQ Press, 2014.

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