A Few Words About…the Cloture Rule

With all the uproar lately over the recent fight in Congress over funding the government, once again the government is shut down because the Senate is paralyzed by infamous Rule XXII. That rule sets out the Cloture Rule, which is a parliamentary procedure to limit debate on a bill. In the Senate, it is possible to indefinitely keep the floor to stop a bill by continuously debating it, which came to be known as the filibuster. The filibuster impedes the orderly operation of the government unless the super-majority votes to limit debate on a bill. As a result, the nation’s business is impeded unless the super-majority vote is attained.

Under Rule XXII, which was enacted in 1917 and really made it possible to approve the controversial Versailles Treaty that ended World War I in 1919, a vote of a three-fifths (3/5) majority (60 votes) would limit unlimited debate on a bill to an additional 30 hours, thereafter resulting in a vote up or down on the bill.

Originally, the Cloture Rule required a two-thirds (2/3) majority. However, the difficulty in obtaining that level of super-majority vote permitted Senate Democrats to hold off passage of the civil rights legislation for about 20 years. The required vote to cut off debate was reduced in 1975 to the current three-fifths (3/5) majority because the members complained that the super-majority required vote was too difficult to obtain.

At one time early in our country’s history, members of the House of Representatives also could filibuster. However, the Cloture Rule was eliminated in the House of Representatives as the body kept growing larger as the country expanded westward. Given that the House of Representatives eliminated the Cloture Rule long ago, could the Senate do the same thing? Should the Senate eliminate the Cloture Rule?

Frustrated by the failure to muster 60 votes to cut off debate in the most recent government funding fight, even though he had a majority, 53 votes, President Trump exhorted the Senate Republicans to eliminate the Cloture Rule, which would enable a simple majority to effectively cut off debate on any bill. This change has been referred to as the ” Nuclear Option.” Should the Senate Republicans do what President Trump wants them to do? Has the time for Rule XXII run out?

Obviously, the Senate Republicans know that their slim 51-49 (after the disastrous Roy Moore loss in one of the safest Republican havens, leaving a Democrat as a senator in Alabama) could disappear as soon as the fall elections. One day, it’s highly likely that the Democrats will once again control the Senate. Do the Republicans risk evoking the Nuclear Option with the knowledge that they might be in the minority again one day?

It’s clear to me that it is time to consign Rule XXII to the dustbin of history because the interests of the country getting its business done outweighs protecting the interests of the minority party. The public holds the Congress in very low regard presently because it is perceived as being constantly snarled in political gridlock, meaning that the business of the country doesn’t get done. I maintain that there is no magic in a three-fifths (3/5) majority, given that the required voting percentage for cutting off debate has been changed over time. If three-fifths is okay, why not a simple majority?

I posit that if the Senate can move legislation more rapidly, more of the country’s business will get done. I acknowledge that many will disagree, because the Cloture Rule may have the effect of forcing cooler heads to prevail by requiring the super-majority vote. However, I will acknowledge that the determination on the Cloture Rule requires a consideration of competing factors in a balancing act. I believe that the need to conduct the country’s business outweighs any other countervailing factor.


About lpaulhoodjr

I am an inactive lawyer who practiced almost 20 years as a tax and estate planning lawyer. Today, I am a speaker, author and consultant on tax and estate planning. In the recent past, I was the Director of Planned Giving for The University of Toledo Foundation. I am the co-author of six books, the sole author of another book and a frequent speaker and writer on estate planning, planned giving and business valuation.
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