Cloture has only been around since 1917, but it has become an important tool in ending filibusters and bringing votes to the Senate floor. Its purpose has changed over the years and it has quickly grown into a versatile tool. While not being around as long as its counterpart, the filibuster, it has made its impact and in many ways exceeded the filibuster. By exploring the history, process, uses, ways in which it has changed, examples, and problems of cloture, one can begin to fully get a grasp of the impact that it has brought about.
Originally, in 1841, when the democrats were blocking a bank bill, Senator Henry Clay threatened to change senate rules so that a majority vote could end debate on the Senate floor. He ended up chastised for trying to limit debate on the senate floor (www.senate.gov). This was the first attempt of what would later be passed and eventually become cloture. Cloture was first introduced on March 8, 1917 behind the strong backing of President Woodrow Wilson. Adopted as Rule XXII, cloture was pushed through after a bill to arm U.S. merchant ships from attacks by German submarines was filibustered and died (Oleszek, 240). Even though it was passed in 1917, the first successful attempt wasn’t until 1919 during the filibuster attempt for the Treaty of Versailles (www.senate.gov). The Senate received the necessary two-thirds votes to invoke cloture and end debate. For the next 50 years cloture was invoked a handful of times, although it usually failed to get the necessary two-thirds vote. This led to the ruling in 1975 that changed the number of votes needed from two thirds to three fifths or 60 people (www.senate.gov). It was also used to end filibusters for federal circuit court nominations, and more recently as a way for a new bill to get voted on without much debate. According to Oleszek, the number of cloture votes has risen dramatically over the years. From 1961-1971 only 5.2 cloture votes per congress happened; whereas, during the 107th Congress from 2001-2003 there were 61 cloture votes (Oleszek, 243).
Although a successful cloture vote can end a filibuster or debate, it does take time and support. To invoke a cloture at least three days are needed from the beginning to the end. On the first day a petition must be signed by at least sixteen Senators, if not more, and be presented to the floor while the bill or amendment is being debated. The bill or amendment is then left alone for 24 hours. First-degree amendments are required to be submitted by 1 p.m. the following day. During the third day, second-degree amendments can be filed up to one hour until the cloture vote. The vote for cloture is then presented to the Senate after a quorum call using the language, “Is it the sense of the Senate that the debate shall be brought to a close?” For the vote to succeed, three-fifths of the one hundred senators are needed unless it is a vote for cloture on proposals to change Senate rules, where two-thirds would be necessary. After a successful vote of cloture, thirty hours of debate are allowed. This includes counting votes and quorum calls. Senators are allowed up to one-hour of debate, and all of their amendments must be pertinent to the issue. Lastly, once the cloture has been invoked it takes priority over all of the other business conducted by the Senate (Oleszek, 243).
There are three main uses for cloture. To end a filibuster on a bill or amendment, to end a filibuster during a nomination and, more recently, it has become a way for the majority leader to push forward a bill without any debate or amendments (Oleszek, 241). There is also no limit on the number of times cloture can be pursued on the same legislation. In the C-Span video of Majority Leader Bill Frist, he discusses a cloture petition that was put forth the night before his speech for the nomination of Eric Edelman to be the Under Secretary of Defense for Policy. This speech was given on day two of the cloture process and the vote would have taken place the next day. It, however, was conceded by the democrats that only one senator was holding up the process and they forwent the cloture vote in favor of a voice vote that evening. This shows one of the ways cloture can be invoked to stop a filibuster of a nomination that had been going on for several months. Even though the cloture vote was not needed, it had the power to make the other side admit defeat, and eventually Edelman did become the Under Secretary of Defense.
Another video, separated into two parts shows the beginning and ending of a cloture vote. This vote was to end discussion on a trade policy bill. This video is a good example of the procedures for the actual voting of a cloture motion. It shows the petition being read, part of the roll call, and the final vote which was successful. Both of these videos are excellent examples of two of the ways cloture can be successfully used as a tool to end delaying tactics and bring debate to an end, other than the up to thirty hours that can now be used before a vote on the measure.
The last, and more recent, way that cloture can be used is when a measure or motion is presented and the majority leader immediately ask for cloture soon after presenting it to the Senate. This is a very different reason than its original intent of stopping filibusters. According to one minority leader, “There is a time and place for cloture, but that time and place is not as soon as the bill is laid down (Oleszek, 241).” This quote signifies that this use was never the intent of cloture, but a loophole that was left open and favors the majority. Along these lines, it can also be used to help gauge the support of a measure and keep unwanted amendments from being included (Oleszek, 241). Because of these reasons it is difficult to measure the amount of filibusters simply by looking at how many times cloture was petitioned.
In the video posted featuring Senator Benjamin Cardin, Cardin explains how the republicans were filibustering, and why other senators should vote to invoke cloture. He stated why it shouldn’t even come to a cloture vote, how in the past the same issue hasn’t had to come to this, and why people should support the cloture petition when it does come up for a vote. This is a good example of the debate that can happen before a motion for cloture proceeds. A famous example of a motion to cloture was during the 100th Congress when a bill that limited the amount of campaign expenditures in Senate general elections was voted for cloture a record eight times (Oleszek, 241). Another one of the more famous examples of cloture was the Civil Rights Act of 1964. Southern senators succeeded for many years in filibustering civil rights acts until cloture was invoked after 57 days of filibustering (www.senate.gov).
There are however, problems that come along with cloture. One of the problems is how long it takes to pass and be invoked. From start to finish it could take up to five days and be required to pass up to six times depending on the bill. These include, “on the motion to proceed with the bill, on the committee substitute, on the bill itself, and three times to get to conference with the house (Oleszek, 244).” There is also the problem some senators addressed in the Harkin, Klobuchar, Merkley, Udall filibuster reform proposal about the length of debate lasting for thirty hours for nomination clotures. They requested that this number be shortened to two hours. Next, if possible, before cloture the minority part can load the measure with amendments because they will have extra time to debate these. This is also handled a little differently than post-cloture amendments which must be germane to the argument (Oleszek, 241).
The last major problem is the threat of a “nuclear option”. This was invented in 2005 by Majority Leader Frist when he tried to end a democratic filibuster of a judicial nominee. Through a series of steps that included senators filibustering, the majority leader raising a point of order to vote, and the Vice President sustaining it, the “nuclear option” begins to form. The next step is a minority senator appealing the decision. After this a majority senator moves to table the appeal. Since the vote is procedural, it only needs a majority vote to pass. This, in effect, ends the filibuster by a simple majority (http://www.constitutioncenter.org). The “nuclear option” threatened to bring the Senate to a standstill if it occurred. Recently, according to thehill.com, in October Senator Reid used this option to change senate rules and end repeated filibusters.
The act of cloture has changed and adapted in many ways since it was first introduced in 1917. It has become easier to invoke, more broad, and used more often. Since it began as a way to end filibusters, it has quickly become a way to end discussion, even if there is yet to be any debate. It will continue to remain a way for the Senate to be more efficient, and allow senators to be more complex in the way they approach measures.
