(Debating) Filibuster vs. (Optional) Cloture: The Self-Inflicted Catch-22 in Senate Rule XXII
This diary is intended – with limited technical detail, so as not to lose everyone in the weeds – to be a guidepost for deciphering this week’s (scheduled) public discussions, and reporting about those discussions, in the Senate – beginning today, Tuesday, January 25th – about how that federal legislative body operates, or should operate. [The 112th Senate met for the first time on January 5, 2011, and then “recessed” until 10 a.m. today – which, under its Standing Rules and precedents, continues the “legislative day” of the Senate’s first session into today’s session, and potentially future sessions, until the Senate formally “adjourns.” As a related aside, I question whether “Jefferson’s Manual” – guidance for a legislative body without any of its own rules – likewise provides that multiple “recessed” calendar day sessions of the Senate, separated by weeks, count as one “legislative day.”]
Included below are a number of facts, about existing Senate rules and practices, which starkly contradict the conventional wisdom generated by reflexively-partisan Senators themselves – as uncritically accepted and repeated by the national media – about what existing Senate rules do and don’t “require.” As most of us recognize, members of the American media today who have relatively easy access to Senators, and to other powerful national figures, rarely meaningfully challenge those privileged to hold such power. That evidently goes double when simplistic, widespread partisan myths have come to predominate and obscure the inconvenient, unspoken truths about the non-partisan institution in which United States Senators serve. . . .
This is one citizen’s informed attempt to publicly state those consequential, unspoken truths, however much they may continue to be studiously ignored by the wielders and courtiers of power in Washington, D.C. – people who are evidently very driven to protect abusive Party practice and privilege, even at the expense of the public, self-governing institution of our federal Senate itself. This diary mostly summarizes; my December diary about Congress focused at length on the alarming fundamentals of its operation today, in both the House and Senate, and further details the dramatic difference between a debating “filibuster,” under the Senate’s simple-majority regular order, and an optional “cloture motion” that seeks to supplant that order with a supermajority voting threshold; and – with regard to the undiminished ability today of a Senate majority, under existing Senate rules, to force the real (debating) filibuster – this technical comment capped an in-depth examination of Senate rules and precedents that selise and I conducted last year in three FDL working diaries.
There have been many misleading claims made, or dishonorably implied, about the Senate and its rules by Senators themselves in recent years, under both Republican (Bill Frist) and, especially, Democratic (Harry Reid) majorities, so it’s difficult to know which myth to address first, or at all. What follows, therefore, in brown text, more or less in order of their appearance, are three of what I consider to be the most prevalent and damaging myths, with the facts, in red and black text, that refute them – facts reported without fear of or favor to any political Party. [As I’ve repeatedly said, any evidence to the contrary about my assertions of fact – anything that I’ve overlooked or misstated – is welcome and invited.]
A crucial premise about the so-called “filibuster” that members of the Reid-led Senate have perhaps most successfully planted as widespread, unquestioned “truth,” is that a Senate majority can’t feasibly force a minority to actually filibuster (engage in extended, physically-taxing public floor debate) in today’s Senate. Or, at least, can’t do so without some sort of (unspecified) change to the Standing Rules of the Senate. Yet that Party-peddled, misleading “truth” is clearly false, on both counts. Again, our technically-detailed, researched “proof” of that is summarized here.
My sense is that, if the media would report and Americans understood that, in fact, forcing real, Mr. Smith Goes to Washington-style filibusters is still possible under the existing rules of the Senate, requiring a minority to actually conduct such filibusters, rather than merely threaten to filibuster, would be the clear preference of an overwhelming majority of Americans.
But, meanwhile, the media unhelpfully continues to convey to the public various versions of the myth, as illustrated by this example from an article by Paul Kane in Saturday’s Washington Post:
That [1970s cloture] rule change has led to the end of the old “Mr. Smith Goes to Washington”-style filibuster, as the onus is placed heavily on the majority to show up and deliver 60 votes. The minority no longer has to speak at length to stall legislation; it merely needs one senator on the floor to object to passing legislation or approving a nominee.
What Paul Kane neglects to point out in his reporting, as elaborated below, is that such a state of affairs for the majority Party is a voluntary state of affairs, brought about only if and when the majority Party elects to file – with the signatures of 16 Democratic Senators – a cloture motion, and refuses to lift its voluntary imposition of the pretend quorum call that prevents the Senate floor from going “live” without the micromanaging of Party leadership in the backrooms.
Thus, that Party-comforting myth is very much intertwined with another pernicious myth, which is that the parliamentary debating tactic of the “filibuster,” and the optional “cloture” process, refer to the same thing, and that the minority Party in the Senate is responsible for both. In fact, however, a Senate minority (rarely) engages in parliamentary debating “filibusters,” but only the Senate majority Party (now routinely) engages in filing “cloture” motions (which alone can trigger a supermajority voting threshold in the Senate for legislation and nominations). That fact is why this is the present state of affairs in our public discourse:
No Democratic Senator today can publicly admit that “filibuster” as they’re using the word actually means “cloture,” because the Democrats, as the current majority Party, are responsible for filing the record-breaking number of cloture motions in recent years, despite the absence of obstructive debating filibusters by a Senate minority.
So there you have the self-inflicted “Catch-22” of Rule XXII‘s cloture motion, for the Senate Democrats: Only the majority Party files optional Rule 22 cloture motions in the Senate (and yes, the Democrats have their unspoken reasons for doing so, as explained below – avoiding public debate, and reverse-engineering legislation through Congress without meaningful debate or amendment high among them). In turn, only cloture motions can impose a supermajority threshold (and debate-free delay) on the Senate, in place of its simple-majority regular order, for the passage of legislation or confirmation of nominees. Despite, or because of, those truths, incumbent Democrats are desperate to pin the blame for their own actions, as the Senate majority Party, on the minority Republicans.
Remember that cloture, created as an option in 1917 at the behest of an imperious Woodrow Wilson, who was eager to see the United States enter the World War over a principled Senate minority resisting his efforts, was designed to be a method to bring ongoing, debating filibusters to a predictable end, in an era when the Senate was out of session a good part of the year. Yet cloture was rarely attempted and rarely invoked until the last couple of decades – a time during which Senate floor debate (in “the world’s greatest deliberative body”) has become an endangered species, and the aggrandizement of the American presidency ever more acute.
That “Catch-22” state of affairs in turn raises important questions:
1. Why don’t minority Republican Senators point out this inconvenient truth (which they’d have to, of course, if ever challenged about it by a knowledgeable member of the media), to expose the deceit inherent in the Democratic Senate’s incessant talking point about minority “filibuster” abuse and obstruction?
Answer: Even a generally-principled Senate minority Party would hesitate to look such a supermajority-cloture, action-blocking gift horse from the majority Party in the mouth. At a minimum, the present minority Party probably sees no merit in volunteering such information about the voluntary cloture rule, and thus putting their comfortable ability to direct the Senate majority from the backroom, without debate, at risk of being rescinded (knowing full well that no rule changes or violations are needed to effect that rescinding), due to a resultant public outcry. Especially now that the Senate Republican minority apparently has the Democratic President on its side in this cloture/filibuster/obstruction fairy tale, which, if past is prologue, happens to neatly help the minority end-run the Democratic majority of the Senate – whose leaders and private caucus are still busy pathetically bowing and scraping to that President in his power-usurping role of Chief Backroom Legislator.
2. Why don’t the majority Democrats simply force minority Republicans to take the floor to filibuster, instead of turning immediately to supermajority cloture at a mere threat to filibuster (or at a refusal to grant unanimous consent to some private majority request to waive regular order, also a primary cause of the “secret hold” problem)?
Answer: This, I think, is the real source of both Party conflict and (bipartisan) incumbent myth-making about the Senate, and I doubt that I can identify all of their private, unspoken reasons. But here are some that I perceive:
a. Senators enjoy their three-day work weeks (with travel days on Monday and Friday), and can’t be bothered to wait around in Washington, in case a minority debating filibuster should materialize and intrude on the weekend, or otherwise call them from their backroom activities to the Senate Chamber (for a live quorum call, for example) more than is usual. [“Usual” today is almost never, except when a vote is underway, or a scripted speech is ready for delivery to the C-SPAN television camera in an empty Senate Chamber. A Chamber in which formal Senate floor business is generally recessed or suspended during daily sessions, in all but name, by the Majority Leader, by means of the place-holding “quorum call” that doesn’t call the (Constitutionally-required simple-majority) quorum, and may only be lifted by unanimous consent or by the unseen direction of the Majority Leader.] Since attendance at desultory committee hearings (now routinely scheduled to overlap with Senate floor “sessions” on those same three days) is spotty at best in the Senate, what Senators are in fact spending most of their time in Washington doing out of public view (when not being “hotlined” by the Party to say yes or no in private to some leadership-designed end) bears much closer public examination than the Capitol Hill media has provided.
b. Lobbyists (whose foreign and domestic corporate clients indirectly fund the re-election campaigns of our Senators) prefer that the Senate do its business in the backrooms. Both the fake quorum call and the optional supermajority cloture rule facilitate such backroom, top-down, Party-directed business “negotiating,” in place of public legislating. (Note that both of those means of conducting the Senate’s business are controlled by the majority Party in the Senate.) And Senators no doubt prefer the lack of accountability and scrutiny that such a Backroom Senate provides. Corporate lobbyists have probably also grown used to and now depend on the make-believe 60-vote threshold that Harry Reid and the Democrats have chosen to impose on the Senate over the last four years.
c. Cloture means a fairly predictable schedule of voting – which is basically the only public duty that today’s Senators bother to stay in Washington to fulfill. No voting means no attendance necessary in Washington. An unpredictable (because democratically-derived, without a foregone conclusion) voting schedule thus harshes their mellow (as Majority Leader Reid – who assiduously caters to the irresponsible sense of entitlement displayed by the pampered charges of both Parties – would be the first to attest)…
d. There is a general fear and loathing of public debate among a large majority of members of the Senate of both political Parties. Which makes preventing a return to real filibusters, and the associated “live” Senate floor, a primary, if unadmitted and unstated, objective of the current Senate “rules” or “filibuster” reform proposals. Never mind the fact that the longest one-man filibuster in Senate history lasted only about 24 hours (or that one-man filibusters have been possible since day one of the Senate, before the 1806 rule changes that a committee appointed to study the rules favorably reported). Furthermore, successfully-invoked cloture requires no public debate from the minority, even as it imposes a supermajority threshold on a measure, and delays Senate action for days or weeks, with or without further debate. [Important related note: The core of the pending Democratic rule changes in the Senate tinkers with that optional supermajority cloture rule, rather than recognizing or urging a reinstatement of the default, simple-majority regular order of the Senate that the Democratic Party has effectively abandoned.]
e. If 60 Senators agree, cloture makes it easy to shut down public legislating and meaningful debate on amendments on the Senate floor. With or without invoking cloture, so do the fake quorum call and “filling the tree” (which Harry Reid has abused more than any of his immediate predecessors) – a Party-driven practice that prevents any Senator from offering an amendment to a measure when it’s before the full Senate. The only check on Harry Reid’s abuse of those practices, or of the potent Motion to Table, or of the practice (enabled by the fake quorum call) which allows only a select number of amendments pre-screened by majority and minority Party leadership – with the unanimous consent of their members – to receive floor consideration, is his privately-convened, off-the-record Democratic Caucus – now filled with Senators busily serving their own interests at the expense of the nation. No Senate rule requires or contemplates such abusive, undemocratic practices by the Senate Majority Leader.
f. Senators prefer to let their Party leaders do their thinking for them, by and large. Self-directed, independent legislating conflicts with the agendas of the unseen power-brokers who finance Congressional and Presidential campaigns, and would otherwise rock the boat in Washington – itself an obvious necessity for the passage, or even active promotion, of legislation, and for diligent oversight of the Executive Branch (and its dangerous, ongoing abuse of the war power, which Congress continues to countenance), that together could, for example, lessen the destructive impact of unchecked Global Corporate predation on many Americans. Otherwise, existing Senate rules that provide for non-debatable (meaning they can’t be filibustered…) Motions to Proceed (to “any matter”) offered by any Senator, during the two-hour “Morning Hour” of each legislative day, would not be routinely and without fail waived by unanimous consent, in advance, at the conclusion of the preceding Senate day, every day. Senate Standing Rule VIII:
2. All motions made during the first two hours of a new legislative day to proceed to the consideration of any matter shall be determined without debate, except motions to proceed to the consideration of any motion, resolution, or proposal to change any of the Standing Rules of the Senate shall be debatable. Motions made after the first two hours of a new legislative day to proceed to the consideration of bills and resolutions are debatable.
I note again that the various proposals now on offer to “reform” the Senate rules, from some power-hungry, debate-hostile (or simply ill-informed) Democratic Senators, appear to be designed to continue the routine, abusive Democratic deployment of the supermajority cloture motion (in one form or another), to the exclusion of the simple-majority regular order of the Senate.
To provide one deplorable example of the half-truths, at best, being used in this partisan campaign by incumbent Senators to limit the future right to debate in the Senate (even though public floor debate in the Senate is increasingly rare), here’s how one of the most ardent Democratic proponents of “reforming” Senate rules deliberately misstates the existing rules and options available to a Senate majority – from a footnoted paper published on January 9, 2011 by Tom Udall, a member of the Senate Rules Committee (see the “follow in the footsteps” link below):
In order to call up business on the floor, the Majority Leader must make a “motion to proceed.” Normally, the motion is agreed to by a unanimous consent agreement. The problem is that the motion to proceed is debatable under the Rules, meaning that it can be filibustered. Therefore, if a single senator threatens to filibuster the motion to proceed, denying the Majority Leader the unanimous consent agreement, the Senate must go through the lengthy Rule 22 cloture process in order to move to debate the underlying measure.
And we’re supposed to trust Udall’s word about what his drastic Nuclear Constitutional Option “reforms” will, or won’t, do to the United States Senate…??
That statement was part of Udall’s description of the abusive practice of “secret holds.” [To their credit, there is a credible, honestly-bipartisan move in the Senate, lead by Senators Ron Wyden and Chuck Grassley, to end the corrupt practice (no Standing Rule changes needed) of anonymous holds, with or without the blessing of Party leadership.]
The “secret hold” in Udall’s statement is the mere “threat to filibuster.” Or, to put it another way, the denial of “unanimous consent” to Majority Leader Reid’s private requests to waive regular order (that is, to bypass any debate on a motion to proceed). Regular order which would simply mean a period of public floor debate on the motion to proceed in advance of a simple-majority vote on final passage of the motion to proceed. Except that the regular order is blocked by the (unmentioned by Udall) modern Senate custom of convenience and Party leadership control, in which the Majority Leader imposes the make-believe quorum call on the Senate Chamber to prevent the Presiding Officer from putting the pending question, absent floor debate, to a simple-majority vote of the Senate – in order that the leadership of the majority Party can privately reverse-engineer Senate action, and otherwise preordain legislative ends, in private. Whereas, without the make-believe quorum call holding the Senate hostage, if a real, physically-taxing debating filibuster did not actually materialize, the Senate would soon be passing the motion to proceed without any need to file for cloture, and the measure in question would be in front of the Senate for its consideration and the offering of amendments, minority “threat” to filibuster or no threat to filibuster. Alternatively, as I just indicated, under existing Senate rules, any Senator could refuse to give consent to the daily request to “deem expired” the “Morning Hour,” and then at the appointed hour, make a motion to proceed which would not be open to debate at all.
“Constitutional (simple-) majority rule” has been repeatedly invoked by those now asserting the need for Senate rule changes to reform corrupt Party practices – apparently in furtherance of continuing, with greater ease, the majority’s abuse of supermajority cloture process, irony be damned. That misdirection in turn helps promote the destructive myth that Senate rules may be changed by simple majority on the first legislative day of a new Congress, but otherwise only by a supermajority of 67. Whereas, in fact, nothing in Senate rules “requires” that Senate rules be changed (or legislation passed or nominees confirmed) by supermajority vote. Ever – so long as the Senate majority declines to file a cloture motion in the absence of (or during) any debating filibuster that can otherwise simply be waited out, and also withdraws its pretend, Senate-suspending quorum call order, thereby forcing legislative business back onto the public, “live” Senate floor.
Every Senate, therefore, already has the right to change its rules by Constitutional simple majority, “as provided in [those] rules,” if and when it pleases, while in session, at any time (as this comment further details). Those claiming otherwise, in order to quash full and fair debate, and to avoid the remote risk of a debating filibuster, include, as indicated, Senator Tom Udall of New Mexico, who is on a reckless, ill-advised mission to follow in the footsteps of President Wilson (whose contempt for Constitutional checks and balances Udall apparently shares), and of another debate-hostile Senator from New Mexico who preceded him, and, more recently, Majority Leader Bill Frist.
To succeed in his scheme, Senator Udall must first pretend, and get others to pretend (an effort in which he’s been quite successful), that “minority filibuster” has the same definition as “majority cloture motion,” and that Senate rules may only be changed by 67 votes (even when 16 members of the majority haven’t filed a cloture motion, before or during an actual filibuster). Once those myths are accepted as fact, it is, in Udall’s mind, suddenly both “constitutional” and wise to violate existing Senate rules carried over from the previous Senate (and from every preceding Senate since the Senate was established), in order to “change” them by way of the Nuclear Constitutional “point of order” Option. That Option would destructively enlist the President of the Senate (the neutral Presiding Officer of the Chamber) in the dishonest, partisan use of a “point of order” to permanently overturn and upend fair, established Senate “order,” while ignoring clear Senate rules and precedent making such an Option “out of order.” Such a power-abusing, fraudulent abuse of the vital role of points of order in enforcing the parliamentary procedures of the Senate, if employed with Vice President Biden’s connivance, would dissolve all Senate rules this year, and every two years from here on out. [In contrast, actual rule changes made as the Senate rules provide – which means at any time by simple majority, debate and potentially-extended debate included – remain in force until the next time that the Senate decides to revise that rule.] And all of that proposed disorder and unpredictable partisan chaos for the Senate is apparently simply a dishonest means to an end that would further entrench the present majority Party’s abuse of the optional supermajority cloture rule in the Senate (abuse that a 1975 cloture-rule revision helped spawn).
For the record:
1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day’s notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.
2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.
The opening paragraph, on Page 1217 [PDF Page 1 of 12], of the “Rules” PDF of Riddick’s Senate Procedure:
The Senate has readopted or made only seven general revisions of its rules since 1789 – on March 26, 1806; January 3, 1820; February 14, 1828; March 25, 1868; January 17, 1877; January 11, 1884; and November 14, 1979. The rules of the Senate, however, are subject to amendment at any time and have been amended regularly in part in most, if not in all, Congresses since 1884, and on occasions several times in the same Congress.
From Page 935 [PDF Page 2 of 4] of the “Motions” PDF of Riddick’s Senate Procedure:
“A motion directing the Chair to put to the Senate without further debate the consideration of a resolution to change the rules under his [claimed – pow wow] constitutional right to get a vote on changing the rules at the opening of a new Congress [by first dissolving or violating the carried-over rules of the preceding Senate – pow wow] is not in order.“
Helping to shield Democrats from the criticism that the radical “constitutional option” deserves, is a common failure – even among some Senate researchers who irresponsibly cater to the whims of powerful partisans, despite characterizing versions of the nuclear/constitutional option as akin to a “bold-faced coup” – to understand or appreciate the role and importance of “regular order” in a non-partisan legislative body like the Senate. If an existing “order,” once established, is not honored during floor proceedings by the Senate’s members and its President (when, for example, those members desire to change that order), then raising “points of order” – whose purpose is to ensure that the Presiding Officer/Vice President, with the assistance of non-partisan advice from the Senate Parliamentarian, enforces the established order in a fair, unbiased way – becomes an exercise in futility for members, and an arbitrary charade and mockery of process by a power-abusing majority and/or Senate President, that’s worse than having no order of procedure at all.
So as the debate presumably proceeds in some fashion in the Senate this week, in the shadow of the media hype about tonight’s State of the Union address, I hope that this information about three widespread Senate myths will provide, for those trying to follow the debate, a yardstick against which to measure and interpret the claims and counterclaims that Senators and the media will be making.
And as I hope this diary helps illustrate, there is little or nothing “required” by the current Senate rules themselves that can be held responsible for the failures of the modern Senate. If I were to single out a Standing Rule (rather than corrupt Party practice) to be held somewhat responsible for the present, deplorable state of the Senate, it would be the abuse of Rule 22’s 1917-created optional cloture motion, as revised in 1975 – a cloture rule whose continued abuse is apparently favored by both Parties. That rule enables a Senate supermajority to silence a debating Senator – or, rather, these days, to just ignore a Senate minority, whether it debates or not, with 60 votes in hand – after a set period of time. Since that was and is an optional rule, it doesn’t appear that a Rule XXII supermajority cloture motion can be said to be unConstitutional, even when, as now, it’s routinely deployed in the absence of obstructive debate. But the rigidly-partisan way in which supermajority, debate-foreclosing cloture motions are now being wielded in the Senate by the Democratic majority – to the detriment of deliberate, democratic public legislating, despite the absence of obstructive minority debate, and often in response to the mere withholding of unanimous consent for majority requests to waive public debate entirely – is an absolute disgrace, which none of the rule changes proposed by incumbent Senators, or their allies, seem designed to address or remedy, or even to acknowledge.