Rule 22 Is a Catch 22: Understanding the Senate Cloture Rule

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Robert Brescia 
January 31, 2022

Senate Rule 22 stipulates that a supermajority of the Senate (60 votes) is needed to end debate on most pieces of legislation. The proverbial catch is that if senators want to change Senate rules, that would also require a supermajority of all present and voting members. That’s a fairly high bar to reach. In a practical sense, therefore, unless there is substantial bipartisan support for such a change, the status quo will remain, well, the status quo. Most senators know this, especially those that have been around for a while. It is unknown if members of the House, or other branches of government (Executive, Judicial) realize this, given the recent clamor about eliminating the filibuster. If you knew what the relative chances were of being successful in adopting significant change in the Senate, you could use a lot more discretion in publicizing initiatives, especially if they are ideological in nature. It usually happens that the Senate “filibusters the filibuster.” Therefore, if senators know that there will be a significant opposition against a cloture motion, they typically will not schedule it for full floor consideration.

Let’s remember that the U.S. Senate is, by design, a more reflective legislative body. It is widely considered as more deliberate than the House. Occasionally, some might wonder how any legislation gets passed at all given the various hurdles that the Senate must jump over to get these bills to the finish line. In fact, these hurdles and traffic lights are there for a good reason: to ensure that the citizenry is protected against fast-moving, legislative whims; to ensure that only durable, well-considered and deliberated legislation gets to the winners’ circle.

The Senate has both rules and precedents:

Playing with the Rules (Filibuster).

Even the mere mention of the word filibuster can bring shrugs and rueful head-shaking. The filibuster is not a constitutional provision. Vice President Aaron Burr advised senators to get rid of a rule that required just a simple majority to stop deliberations and force a vote on a bill. After the Civil War, filibustering picked up a little speed in the Senate. There were some motions to eliminate the practice, but they never gained any serious traction. In the early twentieth century, it took two-thirds of present and voting members to stop a filibuster, forcing cloture on any particular pending bill. That two-thirds requirement was subsequently changed to three-fifths (60 members).

In years past, filibustering included a lot of antics displayed on the Senate floor. Senators no longer have to go to those extents. The majority leader simply starts by trying to achieve unanimous consent. If there are dissenting senators, then a cloture motion is filed. Next, if there are fewer than 60 senators who are ready to vote, then there is an automatic filibuster.

Playing with the Precedents (Nuclear Option).

By now you may be thinking that it is near to impossible to change a Senate rule if it is one that would be hotly contested. Let’s assume for the sake of argument that it is indeed extremely hard to modify these rules. One could resort to a workaround—playing with Senate precedent and creating, well, a new precedent. Enter the Senate’s so-called “nuclear option.” Basically someone calls the Senate equivalent of “shenanigans”—raises a point of order related to an existing rule. The presiding officer disagrees, followed by another senator appealing that disagreement. If a simple majority of the Senate also votes to disagree, then the presiding officer’s decision is null and the disagreement position become a precedent. Gosh, can you see how clear and straightforward this is?

There are other maneuvers that can thwart filibusters but these are somewhat beyond the scope of our present discussion. Senators might make a move to modify the rule’s effectiveness by changing the broad field of its application. Yet others might think of reigning in the potential of the precedent by insisting that if a senator opposes a particular decision that he/she be physically present.

Conclusion.

It is very hard to change Senate rules—and even harder when you have a divided legislature—one chamber of Democrats and the other Republican. More than likely, the Senate tends to be the more conservative body—slower to act, longer incumbencies and much more deliberate than the House. The House is full of legislators that want to make something happen in their two-year stints. Therefore, it is understandable that it should be harder to change rules in the Senate than it would be in the House. I believe in the standard of “Never vote to replace something unless you have a suitable solution to take its place.” Let’s remember also that political wins are often fleeting. It may be shortsighted to discard the filibuster for a one-time win—and then regret it for years to come.

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Author: Dr. Robert Brescia respects the wisdom of generations, promotes the love of learning, teaches ethics to university students, government & politics to AP seniors, and leadership to organizations. The Governor of Texas recently appointed him to the State Board for Educator Certification (SBEC). Bob has a doctoral degree with distinction in Executive Leadership from The George Washington University. Contact him at [email protected].

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