Putting Cloture in Perspective
Much of the calculation and intrigue of the health care debate this fall centers around the magical number 60 - the number of senators needed to vote to end debate on legislation and move to up-or-down passage. The 60-vote threshold has outsize influence in the inner workings of the chamber, especially as Democrats, now at 59, heighten their search for a few votes on the Republican side to get over the hurdle, known in parliamentary parlance as invoking cloture. It's worth knowing some of the curious history of cloture as Democrats pursue it.
For one, there is no mention of it in the U.S. Constitution. The Founding Fathers never considered or envisioned that anything more than a simple majority (50% of the Senate plus one) would rule the Senate or govern its legislative duties and debates.
They had already provided plenty of rights for the minority, giving any senator the right to hold up legislation by holding the floor with a lengthy, stemwinder speech, for instance, or allowing the minority, if it wanted, to slow up work through a variety of means and procedural tactics. There was little such latitude provided the minority in the House of Representatives, and that was by design, too, reflecting the Constitutional Convention's intent that the House be more of a pulse or thermometer of the public's feelings but not a final crafter and polisher of legislation to become law.
The ability of the Senate to invoke cloture and end debate never existed until 1917 when the Senate, at the request of President Woodrow Wilson, agreed to amend its rules to allow a determined majority to end long debates and delays and move to up-or-down recorded roll calls. The rule as adopted allowed cloture to be invoked if two-thirds of senators "present and voting" agreed to end debate. In today's Senate, that would be 67 if all were present and voting.
The first time the new tool was employed was two years later in 1919 to end debate on the Treaty of Versailles that ended World War I.
It was a rarely used tool for decades after that, a reflection of the now almost quaint "Senate courtesy" that allowed the minority or a single senator to express discontent until changes might be made to reach a more unanimous consensus. If not, the legislation or nominations or treaties were shelved, or "tabled" in Senate language.
Cloture motions are filed frequently now, as we know -- almost by reflex, and as a matter of course, not debate.
The Senate has changed the cloture rule only once since 1917. In 1975 it voted to lower the threshold for invoking cloture and stopping debate, setting it at three-fifths of the Senate (60 today with the 50 states) and specifying that it only would be invoked if three-fifths of senators "elected and duly chosen" voted so, meaning the entire Senate, not only those present at the time.
Invoking cloture in past times was intended to stop actual filibusters -- the hours-long floor speeches by someone deep in opposition and not short of will. This isn't the case anymore. The mere threat of a filibuster is enough to persuade the majority to file a cloture motion and see if they have the 60 votes to stop debate. That may prove true again this fall in the health care debate. There probably won't be hours-long stemwinder speeches on the floor attempting to stop health care reform.
It's a little unfortunate that the theater and drama is the number 60 instead of the spectacle of the true filibusters of days past when a determined senator would hold the floor speaking with all the fuel he had to stop something he didn't like.
Some of the more memorable include:
Sen. John C. Calhoun, in 1841, held the floor for the better part of a day, in long rebuttal of a banking bill by Sen. Henry Clay. Calhoun is regarded by historians as the progenitor of what we call the filibuster.
Sen. Huey Long, in 1935, spoke for 15 hours and 30 minutes in opposition to the Depression-era National Recovery Act (NRA), opposing elimination of language in the bill requiring Senate confirmation of NRA employees. Historians say Long didn't want rivals from his home state getting big jobs at the NRA unless he agreed. At times during this legendary filibuster, Long read Shakespearean plays, recited recipes for shrimp and oyster dishes and entertained the sleepy chamber and public galleries with home-spun tales of early times growing up in New Orleans, Baton Rouge and Cajun towns.
Sen. Wayne Morse, in 1953, spoke for 22 hours and 26 minutes against tideland oil exploration legislation. He also used the time to express dissatisfaction, even distaste, for President Eisenhower's post-World War II domestic agenda and for his choice of Richard Nixon as vice president, of whom Morse thought very little.
Sen. Strom Thurmond, in 1957, spoke for 24 hours and 18 minutes against voting rights legislation. Hours before, he spent a long period in the Senate steam-bath room, according to the Senate Historian's office, dehydrating himself so he would absorb all the water he drank during the epic filibuster without having to go to the restroom (and thereby losing command of the floor). His pockets were packed with throat lozenges and malted milk tablets. For hours on end, he read and expounded upon the Declaration of Independence, the Bill of Rights and Washington's Farewell Address and certainly much more. His wife was present in the family gallery through the night and had steak sandwiches and pickle relish for him. At the end of the longest filibuster in Senate history, Thurmond concluded his remarks, saying: "I expect to vote against this bill."
Sen. Robert C. Byrd, in 1964, spoke for 14 hours straight against the Civil Rights Act, and, like Thurmond, often read Shakespeare. Byrd later said his vote against the bill was one of two votes he regretted in his long (and still continuing) career. The other regretted vote, by the way, was legislation deregulating the airlines. He voted for it, and later said it short-changed his home state of West Virginia.
A joint filibuster was held on the nomination of Justice Abe Fortis to be chief justice. In 1968, President Lyndon Johnson withdrew the nomination after a long filibuster in the Senate, participated in by many senators, as speaking rights on the floor were passed from one to another who opposed the nominee, saying Fortis worked too closely and in concert with the Johnson White House.
Sen. Alfonse D'Amato, in 1992, spoke for 15 hours and 14 minutes, in opposition to North American trade legislation that, in his view, would result in the loss of jobs at a Corona Typewriter Co. plant in his state of New York. (Typewriters were on the way out then, anyhow. But it hardly mattered. D'Amato was in a tough re-election campaign, and his filibuster was his showcase effort at constituent service.)
There are other filibuster snapshots, for sure. And the Senate is known for long and less-than-enthralling speeches. Senate Majority Leader Harry Reid, for instance, spoke for 8 hours and 30 minutes in 2003 on the right of the Senate to filibuster judicial nominees. His was not a filibuster, technically, since there was not a nominee as a pending matter. It was just a very long, at times impassioned, speech.