Nowhere in the Constitution does it specify that a vote needs to be taken in the Senate to impose cloture. Nowhere in the Constitution does it specify how many senators need to vote to impose cloture on a debate. Nowhere.
Cloture was first introduced to the Senate during the Woodrow Wilson administration. Before then, there was no restriction on the length of debate designed to obstruct passage of a bill, the practice we know as the filibuster. The opposition party could force debate on a bill for as long as it could stand. After cloture was adopted into Senate rules in 1917, a supermajority of two-thirds of all senators present and voting was required to stop a filibuster of a bill (67 votes in today’s Senate). This was a solid rule. In order to continue debate on a bill, a senator would have to hold forth on the floor of the Senate and debate the bill, or simply fill the air with words, in an attempt to make passage of a bill so painful that its sponsors would give in. The filibuster was a drastic measure of last resort, only used by senators who had exhausted all other options.
In the 1970s, cloture was modified, reducing the supermajority requirement to the consent of three-fifths of sworn senators (60 votes today). This would seem, on its face, to be an advantageous turn of events for legislators actually trying to get things done in the Senate. But this is not so. This newest set of rules do not require an actual filibuster to be undertaken. The threat of a filibuster is enough to invoke the cloture rules, meaning that if the minority party objects to a bill, by threatening a filibuster, without ever having to do one, the threshold for passage of said bill is raised from a mere majority to the three-fifths requirement for imposing cloture.
The Senate has been called the saucer that cools the coffee, the bulwark against the tyranny of the majority, etc. But while such perambulations are fine and dandy, the reality of current Senate rules mean that the will of the majority is not just being checked in order that cooler heads may prevail or that compromise may be reached, but is being fully thwarted by a coalition of senators that has no mandate to dictate so thoroughly the course of legislation. If they did have such a mandate, they would be the majority.
The new Senate, still under the control of Majority Leader Harry Reid, has the opportunity to change the rules of cloture, and for the sake of the country, he should do all he can to pass new rules regarding cloture and the filibuster.
First, a rule should be passed requiring senators to actually conduct the filibusters they threaten. Filibustering is an exhausting physical and mental exercise that should consist of real effort on the floor of the Senate, not merely a thirty second phone call from the comfort of an office or an aside while attending a Washington cocktail party. The current lax rules of filibustering allowed the minority party in the last two Senates, the Republicans, to bring forth 275 filibusters, an historically astounding amount. Not one of those filibusters resulted in a senator actually holding the floor of the senate and blocking a bill.
Second, the rule allowing anonymous objection to a bill, thereby forcing a cloture vote, needs to be removed. In fact, there is no situation at all when an elected official should be allowed to obstruct legislation in secret. Those people need to be made to stand on their records.
Others have suggested the threshold for cloture be lowered to 55 votes. This is not necessary if the Senate does adopt a rule requiring real filibustering.
The Republicans are understandably howling mad about any rule change that would curb their power in the Senate. As well they should be. They have used the threat of filibuster so effectively the last two sessions that despite being in the minority, they have dictated debate (with the exception of the last lame-duck session, when the Democrats looked down and discovered their stones). The thought of spending the next two years actually being the minority party must be sickening. But a change to the cloture rules does not just have short-term consequences. Someday, maybe in 2015, the Republicans will be in control of the Senate. When they are, if the Democrats are threatening to filibuster every bill that comes across Mitch McConnell’s desk, they may wish that sensible cloture reform had been enacted.
Reforming cloture rules will always benefit the party in power, while adversely affecting the minority party. There is no way around that. But reforming cloture is pragmatic and necessary. The Senate is no longer just a check against the abuses of the majority, but a check against getting legislation passed, regardless of value. Such a hedge would be sensible were it not for the expert way in which today’s politicians can and are willing to manipulate Senate procedure. Since they are so willing to cripple the nation’s business so easily, it is time for the rules to change. Though lord help us, only senators can change the rules of the Senate.