Order Code RL30360
Report for Congress
Received through the CRS Web
Filibusters and Cloture in the Senate
Updated March 28, 2003
Richard S. Beth
Specialist in the Legislative Process
Government and Finance Division
Senior Specialist in the Legislative Process
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Filibusters and Cloture in the Senate
The filibuster is widely viewed as one of the Senate’s most characteristic
procedural features. Filibustering includes any use of dilatory or obstructive tactics
to block a measure by preventing it from coming to a vote. The possibility of
filibusters exists because Senate rules place few limits on Senators’ rights and
opportunities in the legislative process.
In particular, a Senator who seeks recognition usually has a right to the floor if
no other Senator is speaking, and then may speak for as long as he or she wishes.
Also, there is no motion by which a simple majority of the Senate can stop a debate
and allow the Senate to vote in favor of an amendment, a bill or resolution, or any
other debatable question. Almost every bill actually is subject to two potential
filibusters before the Senate votes on whether to pass it: first, a filibuster on a motion
to proceed to the bill’s consideration; and second, after the Senate agrees to this
motion, a filibuster on the bill itself.
Senate Rule XXII, however, known as the “cloture rule,” enables Senators to
end a filibuster on any debatable matter the Senate is considering. Sixteen Senators
initiate this process by presenting a motion to end the debate. The Senate does not
vote on this cloture motion until the second day after the motion is made. Then it
usually requires the votes of at least three-fifths of all Senators (normally 60 votes)
to invoke cloture. Invoking cloture on a proposal to amend the Senate’s standing
rules requires the support of two-thirds of the Senators present and voting.
The primary effect of invoking cloture on a question is to impose a maximum
of 30 additional hours for considering that question. This 30-hour period for
consideration encompasses all time consumed by rollcall votes, quorum calls, and
other actions, as well as the time used for debate. During this 30-hour period, each
Senator may speak for no more than one hour apiece (although several Senators can
have additional time yielded to them). Under cloture, the only amendments that
Senators can offer are amendments that are germane and that were submitted in
writing before the cloture vote took place. The presiding officer also enjoys certain
additional powers under cloture: for example, to count to determine whether a
quorum is present, and to rule amendments, motions, and other actions out of order
on the grounds that they are dilatory.
The ability of Senators to engage in filibusters has a profound and pervasive
effect on how the Senate conducts its business on the floor. In the face of a
threatened filibuster, for example, the majority leader may decide not to call a bill up
for floor consideration, or to defer calling it up if there are other, equally important
bills that the Senate can consider and pass without undue delay. Similarly, the
prospect of a filibuster can persuade a bill’s proponents to accept changes in the bill
that they do not support, but that are necessary to prevent an actual filibuster.
This report will be updated as developments in practice warrant. For further
information on filibusters and cloture, see CRS Report RL30850, Minority Rights
and Senate Procedures and CRS Report RS20801, Cloture Attempts on Nominations.
The Right to Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Right to Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Right to Speak at Length and the Two-Speech Rule . . . . . . . . . . . . . . . 3
The Motion to Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Conduct of Filibusters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Germaneness of Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Yielding the Floor and Yielding for Questions . . . . . . . . . . . . . . . . . . . . . . . 6
Quorums and Quorum Calls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Roll Call Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Scheduling Filibusters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Invoking Cloture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Matters on Which Cloture May be Invoked . . . . . . . . . . . . . . . . . . . . . . . . . 11
Timing of Cloture Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Effects of Invoking Cloture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Time for Consideration and Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Offering Amendments and Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Germane Amendments Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Amendments Submitted in Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Multiple Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Dilatory Amendments and Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Reading and Division of Amendments . . . . . . . . . . . . . . . . . . . . . . . . 18
The Authority of the Presiding Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Business on the Senate Floor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The Impact of Filibusters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Impact on the Time for Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
The Prospect of a Filibuster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Holds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Linkage and Leverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Consensus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
List of Tables
Table 1. Time That May Be Required for Senate Action
in a Typical Cloture Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Filibusters and Cloture in the Senate
The filibuster is widely viewed as one of the Senate’s most distinctive
procedural features. Today, the term is most often used to refer to Senators holding
the floor in extended debate. More generally, however, “filibustering” includes any
tactics aimed at blocking a measure by preventing it from coming to a vote.
As a consequence, the Senate has no specific “rules for filibustering.” Instead,
possibilities for filibustering exist because Senate Rules deliberately lack provisions
that would place specific limits on Senators’ rights and opportunities in the
legislative process. In particular, those Rules establish no generally applicable limits
on the length of debate, nor any motions by which a majority could vote to bring a
debate to an end.
The only Senate Rule that permits the body, by vote, to bring consideration of
a matter to an end is paragraph 2 of Rule XXII, known as the “cloture rule.”
Invoking cloture requires a super-majority vote (usually 60 out of 100 Senators), and
does not terminate consideration, but only imposes a time limit. It also imposes
restrictions on certain other potentially dilatory procedures. In recent years, as a
result, cloture has increasingly been used to overcome filibusters being conducted not
only by debate, but through various other delaying tactics.
This report discusses major aspects of Senate procedure related to filibusters and
cloture. The two, however, are not always as closely linked in practice as they are
in popular conception. Even when opponents of a measure resort to extended debate
or other tactics of delay, supporters may not decide to seek cloture (although this
situation seems to have been more common in earlier decades than today). In recent
times, conversely, the Senate leadership has increasingly utilized cloture as a routine
tool to manage the flow of business, even in the absence of any apparent filibuster.
For these reasons, the presence or absence of cloture attempts cannot be taken
as a reliable guide to the presence or absence of a filibuster. Inasmuch as
filibustering does not depend on the use of any specific rules, whether a filibuster is
present is always a matter of judgment.
The following discussion focuses chiefly on the conduct of filibusters through
extended debate, and on cloture as a means of overcoming them. The discussion
does not encompass all possible contingencies or consider every relevant precedent.
Authoritative information on cloture procedure can be found under that heading in
Riddick’s Senate Procedure.1 Senators and staff also may consult the Senate
U.S. Congress, Senate, Riddick’s Senate Procedure: Precedents and Practices, S.Doc.
101-28, 101st Cong., 2nd sess., by Floyd M. Riddick, Parliamentarian Emeritus, and Alan S.
Frumin, Parliamentarian, rev. and ed. by Alan S. Frumin (Washington: GPO, 1992), pp. 282-
Parliamentarian on any question concerning the Senate’s procedural rules,
precedents, and practices.
The Right to Debate
The core rule of the Senate governing floor debate is paragraph 1(a) of Rule
XIX, which states that:
When a Senator desires to speak, he shall rise and address the Presiding
Officer, and shall not proceed until he is recognized, and the Presiding Officer
shall recognize the Senator who shall first address him. No Senator shall
interrupt another Senator in debate without his consent, and to obtain such
consent he shall first address the Presiding Officer, and no Senator shall speak
more than twice upon any one question in debate on the same legislative day
without leave of the Senate, which shall be determined without debate.
This is essentially all that the Senate’s rules have to say about the right to speak on
the floor, so the rule is just as important for what it does not say as for what it does
say. The lack of discretion by the chair in recognizing Senators, and the lack of time
limits on debate, combine to create the possibility of filibusters by debate.
The Right to Recognition
Rule XIX affords the presiding officer no choice and no discretion in
recognition. As a general rule, if a Senator seeks recognition when no other Senator
has the floor, the presiding officer must recognize him or her. The presiding officer
may not decline to recognize the Senator, whether for reasons of personal preference
or partisan advantage, or to enable the Senate to reach a vote on the pending matter.
As a result, when the Senate is considering any debatable question, it cannot vote on
the question so long as any Senator wants to be recognized to debate it.
If more than one Senator seeks recognition, Rule XIX directs the presiding
officer to recognize whichever is the first to do so. The result is that, although no
Senator can be sure that he or she will be recognized promptly for debate on a
pending question, each can be sure of recognition eventually. As Senate rules
provide for no motions that could have the effect of terminating debate, a Senator can
do nothing while she or he has the floor that would preclude another Senator from
being recognized afterwards. (The motion to table and time agreements by
unanimous consent, both of which represent partial exceptions to this statement, are
By well-established precedent and practice, the Senate does not comply strictly
with the requirement that the first Senator addressing the chair be recognized. All
Senators accept that the majority leader and then the minority leader must be able to
secure recognition if they are to do some of the things the Senate expects them to do:
to arrange the daily agenda and weekly schedule, and to make motions and propound
unanimous consent agreements necessary for the relatively orderly conduct of
business on the floor. In practice, the party leaders receive preference in recognition.
This means that, if two Senators are seeking recognition at more or less the same
time, and one of them is a party floor leader, the presiding officer recognizes the
leader (and the majority leader in preference to the minority leader). Next after these
two leaders, the majority and minority floor managers of legislation being debated
also generally are accorded preference in recognition. They receive this preference
because they also bear responsibilities for ensuring an orderly process of considering
The Right to Speak at Length and the Two-Speech Rule
Under Rule XIX, unless any special limits on debate are in effect, Senators who
have been recognized may speak for as long as they wish.2 They usually cannot be
forced to cede the floor, or even interrupted, without their consent. (There are some
exceptions: for example, Senators can lose the floor if they violate the Senate’s
standards of decorum in debate, or, as discussed later, they may be interrupted for the
presentation of a cloture motion.)
Rule XIX places no limit on the length of individual speeches or on the number
of Senators who may speak on a pending question. It does, however, tend to limit the
possibility of extended debate by its provision that “no Senator shall speak more than
twice upon any one question in debate on the same legislative day without leave of
the Senate, which shall be determined without debate.” This provision, commonly
called the “two-speech rule,” limits each Senator to making two speeches per day,
however long each speech may be, on each debatable question that the Senate
considers. A Senator who has made two speeches on a single question becomes
ineligible to be recognized for another speech on the same question on the same day.
The “day” during which a Senator can make no more than two speeches on the
same question is not a calendar day, but a legislative day. A legislative day ends only
with an adjournment, so that, whenever the Senate recesses overnight, rather than
adjourning, the same legislative day continues into the next calendar day. A
legislative day may therefore extend over several calendar days. The leadership may
continue to recess the Senate, rather than adjourning, as a means of attempting to
overcome a filibuster by compelling filibustering Senators to exhaust their
opportunities of gaining recognition.
Senators rarely invoke the two-speech rule because they generally do not believe
that there is any need to do so. Sometimes, however, they may insist that the twospeech rule be enforced, as a means of attempting to overcome a filibuster. On such
occasions, nevertheless, Senators often can circumvent the two-speech rule by
making a motion or offering an amendment that constitutes a new and different
The record for the longest single speech remains that made by Sen. Strom Thurmond of
South Carolina on Aug. 28-29, 1957, which consumed 24 hours and 18 minutes. U.S.
Senate, Committee on Rules and Administration, Senate Cloture Rule, committee print, 99th
Cong., 1st sess., S.Prt. 99-95 (Washington: GPO, 1985), p. 40.
debatable question. For example, each Senator can make two speeches on each bill,
each first-degree amendment to a bill, and each second-degree amendment to each
of those amendments as well.
In recent practice, the Senate considers that being recognized and engaging in
debate constitutes a speech. The Senate, however, does not consider “that
recognition for any purpose [constitutes] a speech.” Currently effective precedents
have held that “certain procedural motions and requests were examples of actions
that did not constitute speeches for purposes of the two speech rule.” These matters
include such things as making a parliamentary inquiry and suggesting the absence of
a quorum.3 Nevertheless, if a Senator is recognized for a substantive comment,
however brief, on the pending question, that remark may count as a speech.
The Motion to Table
There is one way in which the Senate can end debate on a question even though
there may be Senators who still might want to speak on it. During the debate, it is
normally possible for a Senator to move to table the pending question (more
formally, to lay the question on the table). The motion is not debatable, and requires
only a simple majority vote to be adopted. In the Senate, to table something is to kill
it. So when the Senate votes to table a matter, it thereby disposes of the matter
permanently and adversely. The Senate frequently disposes of amendments by voting
to table them, rather than by taking what often are called “up or down” votes to agree
to (or not agree to) the amendment itself.
If there is a unanimous consent agreement in effect that limits the time for
debate, the motion to table may not be offered until the time is consumed. Also, in
order to offer the motion, a Senator must first be recognized; another Senator who
has already been recognized may not be interrupted for a motion to table, no matter
how long he or she has been speaking. Within these limitations, if a majority of
Senators oppose a matter, the motion to table may enable them to prevail at a time
of their choosing. By this means, Senators can prevent a debate from continuing
indefinitely, if they are prepared to reject the amendment, motion, or bill that is being
debated. (If, on the other hand, opponents of a matter do not command enough
support to table it, they may decide to extend the debate by conducting what
supporters of the matter might well characterize as a filibuster.)
The motion to table, however, offers no means for supporters of a matter to
overcome a filibuster being conducted against it through extended debate. If the
Senate agrees to a motion to table, the debate is brought to an end, but only at the
cost of defeating the matter. If the Senate votes against the tabling motion, the matter
remains before the Senate, and Senators can resume debating it at length.
Instead, for purposes of overcoming filibusters, the chief use of the motion to
table arises when the filibuster is being conducted through the offering of potentially
dilatory amendments and motions. For example, supporters of a filibuster may offer
“Therefore, the two speech rule requires not a mechanical test, but the application of the
rule of reason.” Riddick’s Senate Procedure, pp. 782-783.
amendments in order to renew their right to recognition under the two-speech rule.
Each time the Senate tables such an amendment, it can continue debate on the
underlying bill, or at least can go on to consider other amendments.
The Conduct of Filibusters
Conducting a filibuster by extended debate is simple, though it can be physically
demanding. A Senator seeks recognition and, once recognized, speaks at length.
When that first Senator concludes and yields the floor, another Senator seeks
recognition and continues the debate. The debate can proceed in this way until all
the participating Senators have made their two speeches on the pending question.
Then it usually is possible to offer an amendment, or make some other motion, in
order to create a new debatable question, on which the same Senators can make two
There is no need for the participating Senators to monopolize the debate. What
is important is that someone speak, not that it be someone on their side of the
question. Although one purpose of a filibuster is to try to change the minds of
Senators who support the question being debated, the purpose of delay is served by
Senators speaking, no matter which side of the question they take.
Germaneness of Debate
More often than not, there is no need for the debate to be germane to the
question being considered, with one important exception. Paragraph 1(b) of Rule
XIX (often called the “Pastore rule” in recognition of former Senator John Pastore
of Rhode Island) requires that debate be germane each calendar day during the first
three hours after the Senate begins to consider its unfinished or pending legislative
business. In other words, the time consumed by the majority and minority leaders,
and any speeches during “routine morning business,” at the beginning of a daily
session is not included in this three-hour period. The Senate can waive this
germaneness requirement by unanimous consent or by agreeing to a non-debatable
motion for that purpose.
Like the two-speech rule, the Pastore rule usually is not enforced because
Senators do not see the need to enforce it. During filibusters, however, Senators may
be called upon to comply with the germaneness requirement on debate when it is in
effect. In practice, this does not put much extra burden on participating Senators,
because most speeches made during filibusters today tend to be germane anyway.
In earlier times, filibustering Senators were known to speak about virtually
anything. In his 1940 study of filibusters, Franklin Burdette reported that Senator
Huey Long of Louisiana–
would dictate for the benefit of the Congressional Record recipes for cooking
upon which his authoritative advice had been regularly in demand in Washington
social circles .... He then proceeded to tell the Senate at great length and in
meticulous detail how to fry oysters. Nor did he omit a rambling discourse on
the subject of ‘potlikker.’4
At that time, the Senate had no rule of germaneness in debate, even during the first
three hours of each day, but even at the time to which Burdette referred, a discourse
such as Senator Long’s was unusual.
Yielding the Floor and Yielding for Questions
A Senator who has the floor for purposes of debate must remain standing and
must speak more or less continuously.5 Complying with these requirements
obviously becomes more of a strain as time passes. However, Senators must be
careful when they try to give some relief to their colleagues who are speaking.
Senate precedents prohibit Senators from yielding the floor to each other. To gain
the floor, a Senator must seek recognition from the presiding officer. Thus, if a
Senator simply yields to a colleague, he or she has yielded (relinquished) the floor,
however inadvertently. This is another one of those Senate procedures that often is
not observed during the normal conduct of business on the floor. But during
filibusters, Senators are much more likely to insist on it being observed.
A Senator may yield to a colleague without losing the floor only if the Senator
yields for a question.6 With this in mind, a colleague of a filibustering Senator may
give that Senator some relief by asking him or her to yield for a question. The
Senator who retains control of the floor must remain standing while the question is
being asked. The peculiar advantage of this tactic is that it sometimes takes Senators
quite some time to ask their question, and the presiding officer is reluctant to force
them to state their question before they are ready to do so. In this way, participating
Senators can extend the debate through an exchange of what sometimes are long
questions followed by short answers, rather than by relying exclusively on a series
of long, uninterrupted speeches.
Quorums and Quorum Calls
There are ways other than debate by which Senators can delay and sometimes
even prevent the Senate from voting on a question that it is considering. For
example, each amendment that is offered on the Senate floor must be read in full
before debate on it can begin, although the Senate usually agrees by unanimous
consent to waive the reading. In addition, quorum calls can be demanded not for the
purpose of confirming or securing the presence of a quorum, but in order to consume
Franklin Burdette, Filibustering in the Senate (New York: Russell & Russell, 1965; reprint
of 1940 Princeton University Press edition), p. 4.
Riddick’s Senate Procedure, p. 755.
Senators sometimes ask unanimous consent to yield to a colleague for something other than
a question without losing their right to the floor. Any Senator can object to this request.
A Senator who has been recognized can “suggest the absence of a quorum,”
asking in effect whether the Senate is complying with the constitutional requirement
that a quorum—a majority of all Senators—be present for the Senate to conduct
business. The presiding officer normally does not have the authority to count to
determine whether a quorum actually is present (which is rarely the case), and so
directs the clerk to call the roll.
Senators usually use quorum calls to suspend the Senate’s floor proceedings
temporarily, perhaps to discuss a procedural or policy problem or to await the arrival
of a certain Senator. In those cases, the clerk calls the roll very slowly and, before
the call of the roll is completed, the Senate agrees by unanimous consent to call off
the quorum call (to “dispense with further proceedings under the quorum call”).
Because the absence of a quorum has not actually been demonstrated, the Senate can
resume its business. Such quorum calls can be time-consuming and so can serve the
interests of filibustering Senators.
During a filibuster, however, the clerk may be directed to call the roll more
rapidly, as if a rollcall vote were in progress. Doing so reduces the time that the
quorum call consumes, but it also creates the real possibility that the quorum call may
demonstrate that a quorum in fact is not present. In that case, the Senate has only two
options: to adjourn, or to take steps necessary to secure the presence of enough absent
Senators to create a quorum. Typically, the majority leader or the majority floor
manager opts for the latter course, and makes a motion that the sergeant at arms
secure the attendance of absent Senators, and then asks for a rollcall vote on that
motion. Senators who did not respond to the quorum call are likely to come to the
floor for the rollcall vote on this motion. Almost always, therefore, the vote
establishes that a quorum is present, so the Senate can resume its business without
the sergeant at arms actually having to execute the Senate’s directive.
This process also can be time-consuming because of the time required to
conduct the rollcall vote just discussed. Nonetheless, the proponents of the bill (or
other matter) being filibustered may prefer that the roll be called quickly because it
requires unanimous consent to call off a routine quorum call, in which the clerk calls
the roll very slowly, before it is completed. A filibustering Senator has only to
suggest the absence of a quorum and then object to calling off the quorum call in
order to provoke a motion to secure the attendance of absentees and (with the support
of at least 10 other Senators) a rollcall vote on that motion. If this motion is likely
to be necessary, one way or the other, it is usually in the interests of the bill’s
proponents to have the motion made (and agreed to) as soon as possible.
When Senators suggest the absence of a quorum, however, they lose the floor.
Also, “[i]t is not in order for a Senator to demand a quorum call if no business has
intervened since the last call; business must intervene before a second quorum call
or between calls if the question is raised or a point of order made.”7 These restrictions
limit the extent to which quorum calls may be used as means of conducting
Riddick’s Senate Procedure, p. 1053. On what constitutes intervening business, see pp.
Roll Call Voting
As the preceding discussion indicates, rollcall votes are another source of delay.
Any question put to the Senate for its decision requires a vote, and a minimum of 11
Senators can require that it be a roll call vote. Each such vote consumes at least 15
minutes unless the Senate agrees in advance to reduce the time for voting.8
The Constitution provides that the “yeas and nays” shall be ordered “at the
desire of one-fifth of those present” (Article I, Section 5). Because a quorum is
presumed to be present, the Senate requires at least 11 Senators (one-fifth of the
minimal quorum of 51) to request a rollcall vote on the pending question.
When a Senator wants a rollcall vote, other Senators frequently support the
request as a courtesy to a colleague. During a filibuster, however, the supporters of
the bill or amendment sometimes try to discourage other Senators from supporting
requests for time-consuming rollcall votes. Also, the proponents sometimes can
make it more difficult for their opponents to secure a rollcall vote. When the request
for a rollcall vote is made immediately after a quorum call or another rollcall vote,
Senators can insist that the request be supported by one-fifth of however many
Senators answered that call or cast their votes.9 Since this is almost certainly more
than 51 and, in practice, is much closer to 100, the number of Senators required to
secure a roll call can increase to a maximum of 20.
The time allowed for Senators to cast roll call votes is a minimum of 15
minutes, unless the Senate agrees, before the vote begins, to a reduced time. When
the 15 minutes expire, the vote usually is left open for some additional time in order
to accommodate other Senators who are thought to be en route to the floor to vote.
Thus, the actual time for a roll call vote can extend to 20 minutes or more. During
filibusters, however, a call for the regular order can lead the presiding officer to
announce the result of a roll call vote soon after the 15 minutes allotted for it.
Senators usually can secure two votes in connection with the disposition of each
bill, amendment, motion, or other question. The first is the vote on the question itself
or on a motion to table it. The second is the vote on a motion to reconsider the vote
by which the first question was decided (or on a motion to table the motion to
reconsider). With sufficient support, roll call votes can be ordered on each motion.
so that completing action on both of them consumes at least 30 minutes.
The Senate, unlike the House, does not use an electronic voting system.
“[T]he sufficiency of the number of Senators demanding a rollcall is based on the last
preceding rollcall. The Chair, noting that 81 Senators had just voted, denied the yeas and
nays when only 16 Senators responded to a request for a sufficient second. A demand for
the yeas and nays immediately following a call of the Senate is seconded by one-fifth of
those answering such call, or immediately following a yea and nay vote, seconded by onefifth of those voting.” Riddick’s Senate Procedure, p. 1417.
Contemporary filibusters usually are fairly courteous affairs. The Senate’s daily
schedule normally is arranged so that filibusters are not unduly disruptive or
inconvenient to Senators. One way to make conducting a filibuster more costly and
difficult is to keep the Senate in session until late at night, or even all night, requiring
the participating Senators to speak or otherwise consume the Senate’s time. During
some contentious filibusters of the 1950s, cots were brought into the Senate’s
anterooms for Senators to use during around-the-clock sessions.
Today, all-night sessions are very unusual. The Senate may not even convene
earlier or remain in session later when a filibuster is in progress than it does on other
days. One reason may be that filibusters are not the extraordinary and unusual
occurrences that they once were. Another may be that Senators are less willing to
endure the inconvenience and discomfort of prolonged sessions.
The latter point is important because late-night or all-night sessions put as much
or more of a burden on the proponents of the question being debated than on its
opponents. The Senators participating in the filibuster need only ensure that at least
one of their number always is present on the floor to speak. The proponents of the
question, however, need to ensure that a majority of the Senate is present or at least
available to respond to a quorum call or roll call vote. If, late in the evening or in the
middle of the night, a Senator suggests the absence of a quorum and a quorum does
not appear, the Senate must adjourn or at least suspend its proceedings until a
quorum is established. This works to the advantage of the filibustering Senators, so
the burden rests on their opponents to ensure that the constitutional quorum
requirement always can be met.
The procedures for invoking cloture are governed by paragraph 2 of Rule XXII
(which also governs procedures under cloture, as discussed later in this report).
The process begins when a Senator presents a cloture motion that is signed by
16 Senators, proposing “to bring to a close the debate upon [the pending question].”
The motion is presented to the Senate while it is in session, and must be presented
while the question on which cloture is sought is pending. For example, it is not in
order for a Senator to present a motion to invoke cloture on a bill that the Senate has
not yet agreed to consider, or on an amendment that has not yet been offered. A
Senator does not need to be recognized by the chair in order to present a cloture
petition. The Senator who has the floor may be interrupted for the purpose, but
retains the floor thereafter and may continue speaking.
The motion is read to the Senate, but the Senate then returns to whatever
business it had been transacting. The Senate does not act on the cloture motion in
any way on the day on which it is submitted, or on the following day. Instead, the
next action on the motion occurs “on the following calendar day but one”—that is,
on the second day after it is presented. So if the motion is presented on a Monday,
the Senate acts on it on Wednesday.
During the intervening time, the Senate does not have to continue debating the
question on which cloture has been proposed, but can turn to other business. One
hour after the Senate convenes on the day the cloture motion has “ripened” or
“matured,” the presiding officer interrupts the proceedings of the Senate, regardless
of what is under consideration at the time, and presents the cloture motion to the
Senate for a vote.
At this point the presiding officer is required to direct that an actual (or “live”)
quorum call take place. (The Senate often waives this quorum call by unanimous
consent.) When the presence of a quorum is established, the Senate proceeds,
without debate, to vote on the cloture motion: “the Presiding Officer shall, without
debate, submit to the Senate by a yea-and-nay vote the question: ‘Is it the sense of the
Senate that the debate shall be brought to a close?’ “10 The terms of the rule require
an automatic roll call vote.
Invoking cloture usually requires a three-fifths vote of the entire Senate—“threefifths of the Senators duly chosen and sworn.” If there are no vacancies, therefore,
60 Senators must vote to invoke cloture. In contrast, most other votes require only
a simple majority (that is, 51%) of the Senators present and voting, assuming that
those Senators constitute a quorum. In the case of a cloture vote, the key is the
number of Senators voting for cloture, not the number voting against. Failing to vote
on a cloture motion has the same effect as voting against the motion: it deprives the
motion of one of the 60 votes needed to agree to it.
There is an important exception to the three-fifths requirement to invoke cloture.
Under Rule XXII, an affirmative vote of two-thirds of the Senators present and
voting is required to invoke cloture on a measure or motion to amend the Senate
rules. This exception has its origin in the recent history of the cloture rule. Before
1975, two-thirds of the Senators present and voting (a quorum being present) was
required for cloture on all matters. In early 1975, at the beginning of the 94th
Congress, Senators sought to amend the rule to make it somewhat easier to invoke
cloture. However, some Senators feared that if this effort succeeded, that would only
make it easier to amend the rule again, making cloture still easier to invoke. As a
compromise, the Senate agreed to move from a maximum of 67 votes (two-thirds of
the Senators present and voting) to a minimum of 60 votes (three-fifths of the
Senators duly chosen and sworn) on all matters except future rules changes, including
changes in the cloture rule itself.11
If the Senate does vote to invoke cloture, that vote may not be reconsidered. On
the other hand, it is in order to reconsider the vote by which the Senate voted against
invoking cloture. On a few recent occasions, supporters of cloture have moved to
reconsider a vote against cloture, so that a second vote on cloture vote occurs without
a second petition being filed.
Rule XXII, paragraph 2.
Committee on Rules and Administration, Senate Cloture Rule, pp. 119-121.
The Senate sometimes agrees by unanimous consent to alter the way in which
various requirements of the cloture rule apply to consideration of a specified matter.
In particular, Senators by unanimous consent sometimes permit a cloture motion to
be filed on a matter that is not then pending. Also, as mentioned, the required
quorum call preceding a cloture vote is often waived by consent. In addition, the
Senate may give unanimous consent to adjust the time when the cloture vote will take
place. On some occasions, the Senate has even agreed, by unanimous consent, to
vote on cloture at a specified time even though no cloture motion is formally filed.
Matters on Which Cloture May be Invoked
Any debatable question that the Senate considers can be filibustered and,
therefore, may be the subject of a cloture motion, unless the time for debate is limited
by the Senate’s rules, by law, or by a unanimous consent agreement. Consequently,
Senators may present cloture motions to end debate on bills, resolutions,
amendments, conference reports, and various debatable motions.
In relation to the Senate’s initial consideration of a bill or resolution, there
usually can be at least two filibusters: first, a filibuster on the motion to proceed to
the measure’s consideration; and second, after the Senate agrees to this motion, a
filibuster on the measure itself. If the Senate cannot agree to take up a measure by
unanimous consent, the majority leader’s recourse is to make a motion that the
Senate proceed to its consideration. This motion to proceed, as it is called, usually
is debatable and, consequently, subject to a filibuster.12 Therefore, the Senate may
have to invoke cloture on this motion before being able to vote on it. Once the
Senate adopts the motion to proceed and begins consideration of the measure itself,
a filibuster on the measure then may begin, so that cloture must be sought anew on
the measure itself. Except by unanimous consent, cloture cannot be sought on the
measure during consideration of the motion to proceed, because cloture may be
moved only on a question that is pending before the Senate. Threatened filibusters
on motions to proceed once were rare, but have become somewhat more common in
Sometimes an amendment provokes a filibuster even though the underlying bill
does not. If cloture is invoked on the amendment, the operation of cloture is
exhausted once the amendment is disposed of. Thereafter, debate on the bill
continues, but under the general rules of the Senate. On occasion, cloture has been
invoked, in this way, separately on several amendments to a bill in succession.
Alternatively, cloture may be invoked on the bill itself, so that debate on the
amendment continues under the restrictions of cloture on the overall measure. If the
amendment is not germane to the bill, however, its supporters will oppose this
approach, for (as discussed later) the cloture rule requires that amendments
Senate Rule VII, paragraph 2, and Senate Rule VIII, paragraph 2. Although Senate Rules
do not restrict who may offer a motion to proceed, the Senate normally accords the majority
leader the prerogative of doing so, in pursuance of his functions of arranging the floor
agenda. Riddick’s Senate Procedure, p. 655. Even in the equally divided Senate of the 107th
Cong., the “power-sharing agreement” (S.Res. 8, adopted Jan. 5, 2001) affirmed this
considered under cloture be germane. If cloture is invoked on a bill while a
nongermane amendment is pending, the amendment becomes out of order and may
not be further considered. In such a case it may be necessary instead to invoke
cloture on the amendment, so as to secure a final vote on it, and then, after the
amendment is disposed of, move for cloture on the bill as well.
After the Senate has passed a measure, additional action may be necessary in
order that the Senate may go to conference with the House on the legislation. The
motions necessary for this purpose are debatable, and as a result, supporters of the
measure have occasionally found it necessary to move for cloture thereon.
Conference reports themselves, unlike measures on initial consideration, are not
subject to a double filibuster, because they are privileged matters, so that motions to
proceed to their consideration are not debatable.13 Inasmuch as conference reports
themselves are debatable, however, it may be found necessary to move for cloture on
a conference report.
Occasionally, cloture has also been sought on other debatable questions, such
motions to waive the Budget Act,
motions to recommit a measure with instructions that it be reported
back forthwith with an amendment, or
overriding a Presidential veto.
Timing of Cloture Motions
The relation of cloture motions to filibusters may depend on when the cloture
motions are filed. Prior to the 1970s, consideration of a matter was usually allowed
to proceed for some days or even weeks before cloture was sought, or cloture might
not be sought at all. In more recent decades it has become common to seek cloture
on a matter much earlier in the course of consideration, even immediately after
consideration has begun. In some cases, a cloture motion has been filed, or has been
deemed to have been filed, even before the matter in question has been called up.
(Because the rules permit filing a motion for cloture only on a pending question,
either of these actions, of course, requires unanimous consent.) When cloture is
sought before any dilatory action actually occurs, the action may be an indication that
the threat of a filibuster is present, or at least is thought to be present.
When cloture is filed at the time the Senate commences to consider a matter (or
earlier), the Senate may then sometimes also lay the matter aside (or omit to take it
up) until the time for the cloture vote arrives. If cloture is then invoked in such a
situation, the entire active floor consideration of the matter may occur under cloture.
In the early months of the 107th Congress (2001-2002), when the Senate was equally
divided between the major parties, the so-called “power-sharing agreement” provided
A nomination also is subject to only one filibuster, because no debate is allowed on a
motion that the Senate go into executive session to consider a particular nomination.
that no cloture motion be filed on any amendable matter during its first 12 hours of
Senate debate.14 This arrangement was intended to preclude situations in which
Senators would have no opportunity to debate and, especially, offer amendments to,
a measure, except under the restrictions of cloture.
There often has been more than one cloture vote on the same question. If and
when the Senate rejects a cloture motion, a Senator then can file a second motion to
invoke cloture on that question. In some cases, Senators even have anticipated that
a cloture motion may fail, so they have filed a second motion before the Senate has
voted on the first one. For example, one cloture motion may be presented on
Monday and another on Tuesday. If the Senate rejects the first motion when it
matures on Wednesday, the second motion will ripen for a vote on Thursday. (If the
Senate agrees to the first motion, there is no need, of course, for it to act on the
second.) There have been instances in which there have been even more cloture
votes on the same question. During the 100th Congress (1987-1988), for example,
there were eight cloture votes, all unsuccessful, in connection with a campaign
finance reform bill.
Effects of Invoking Cloture
Invoking cloture on a bill (or on any other question) does not produce an
immediate vote on it. The effect of invoking cloture is only to guarantee that a vote
will take place eventually.
Time for Consideration and Debate
Rule XXII imposes a cap of no more than 30 additional hours for the Senate to
consider a question after invoking cloture on it. This 30-hour cap is a ceiling on the
time available for post-cloture consideration, not just for debate. The time used in
debate is counted against the 30 hours, but so too is the time consumed by quorum
calls, roll call votes, parliamentary inquiries, and all other proceedings that occur
while the Senate is operating under cloture. The 30-hour period can be increased if
the Senate agrees to a non-debatable motion for that purpose. Adopting this motion
also requires a three-fifths vote of the Senators duly chosen and sworn.
During the period for post-cloture consideration, each Senator is entitled to
speak for a total of not more than one hour. Senators may yield part or all of their
time to any of four others: the majority or minority leaders or the majority or minority
floor managers. None of these Senators can accumulate more than two hours of
additional time for debate; but, in turn, they can yield some or all of their time to
S.Res. 8, 107th Cong., adopted Jan. 5, 2001.
Hypothetically, therefore, one Senator could control a maximum of 13 hours for debate.
This would require eight Senators to yield all of their time to the four designated party
leaders and floor managers (two Senators yielding their time to one of the four), giving each
There is insufficient time for all Senators to use their allotted hours for debate
within the 30-hour cap for post-cloture consideration. This disparity results from a
recent amendment to the cloture rule. Before 1979, there was no cap at all on postcloture consideration; the only restriction in Rule XXII was the limit of one hour per
Senator for debate. The time consumed by reading amendments and conducting roll
call votes and quorum calls was not deducted from anyone’s hour. As a result,
Senators could (and did) engage in what became known as post-cloture filibusters.
By offering one amendment after another, for example, and demanding roll call votes
to dispose of them, Senators could consume hours of the Senate’s time while
consuming little if any of their allotted hour for debate. In reaction, the Senate
amended Rule XXII in 1979 to impose a 100-hour cap on post-cloture consideration.
In theory, at least, this time period could accommodate the one hour of debate per
Senator (but only if Senators used all of the 100 hours only for debate). Then, in
1985, the Senate agreed, without significant dissent, to reduce the 100 hours to 30
hours, while leaving unchanged the allocation of one hour for each Senator to debate.
The result is that there is not enough time available under cloture for each
Senator to speak for an hour.16 In principle, 30 Senators speaking for one hour each
could consume all the time for post-cloture consideration. However, Rule XXII does
provide a limited protection for all Senators by providing that, when the 30 hours
expire, “any Senator who has not used or yielded at least ten minutes, is, if he seeks
recognition, guaranteed up to ten minutes, inclusive, to speak only.”17
Under these conditions, Senators may still be able to pursue a post-cloture
filibuster, but it can last no longer than the 30 hours available for consideration under
cloture. As a result, once cloture has imposed its definitive limit on further
consideration, opponents may see little benefit in the limited delay they might still
obtain, and may instead permit a final vote well before the available 30 hours expires.
Sometimes, the Senate agrees by unanimous consent that the 30 hours be considered
to run continuously, even when the Senate is not actively considering the measure or
even remains in session.
There is one other notable difference in the Senate’s debate rules before and
after cloture is invoked. As discussed above, Senate floor debate normally does not
have to be germane, except when the Pastore rule applies. Under cloture, debate
must be germane. This requirement derives from the language of Rule XXII that
allows each Senator to speak for no more than one hour “on the measure, motion, or
other matter pending before the Senate ....” Senate precedents make clear that
Senators should not expect the presiding officer to insist on germane debate at his or
party leader and floor manager control of three hours apiece. If the four designated Senators
then yielded all of their combined 12 hours to a fifth Senator, who controls one hour in his
or her own right, that Senator would control 13 hours.
When one Senator yields to another for a question, the time required to ask the question
comes out of the hour controlled by the Senator who yielded.
When a Senator has consumed all of his or her hour for debate, that Senator may continue
to offer amendments, but has no time to explain them. At the end of the 30 hours for postcloture consideration, no further amendments may be offered.
her initiative. Senators wishing to enforce the requirement that debate be germane
can do so by making points of order from the floor.
Offering Amendments and Motions
There are several key restrictions governing the amendments that Senators can
propose under cloture that do not apply to Senate floor amendments under most other
circumstances. Some of these restrictions also apply to other motions Senators may
offer, or actions they may take, under cloture.
Germane Amendments Only. Only germane amendments are eligible for
floor consideration under cloture.18 This germaneness requirement applies to the
amendments that Senators offer after cloture is invoked, and the requirement applies
as well to any amendments that were pending (that is, amendments that had been
called up for consideration but were not yet disposed of) at the time that the Senate
votes for cloture. Thus, immediately after a successful cloture vote, the presiding
officer may announce at his own initiative that one or more amendments that were
pending when the vote began now must “fall” because they are not germane to the
matter on which the Senate just invoked cloture.
This germaneness requirement helps explain why the Senate may have to invoke
cloture on an amendment to a bill, and then invoke cloture again on the bill itself.
It is quite common for a Senate committee to report a bill back to the Senate with an
amendment in the nature of a substitute—a complete alternative for the text of the
bill as introduced. The Senate almost always adopts this substitute immediately
before voting to pass the bill as amended by the substitute. However, it also is not
unusual for the committee substitute to be nongermane to the bill in some respect.
Thus, if the Senate invokes cloture on the bill before it votes on the committee
substitute, the substitute becomes out of order as nongermane, so that the Senate
cannot agree to it. To protect the committee substitute (or any other nongermane
amendment that the Senate is considering), the Senate can first invoke cloture on the
amendment. Doing so limits further consideration of the amendment to no more than
30 more hours. If the Senate then adopts the amendment, cloture no longer is in
effect, and Senators can filibuster the bill as amended. However, inasmuch as the
previous nongermane amendment is now part of the text of the bill, it therefore
cannot now be nongermane to the bill. At this point, therefore, the Senate may again
vote to invoke cloture, this time on the bill as amended.
With respect to amendments offered after the cloture vote, the presiding officer
may wait for a Senator to make a point of order against an amendment before ruling
that it is not germane. Sometimes, however, the presiding officer has taken the
initiative to rule amendments out of order as nongermane. In fact, “when obviously
nongermane the Chair may rule the amendment out of order even before it has been
read or stated by the clerk.”19 (Similarly, presiding officers have taken the initiative
On what constitutes a germane amendment, see Riddick’s Senate Procedure, pp. 291-294.
Riddick’s Senate Procedure, p. 291.
to rule amendments out of order—sometimes even before they were read—because
the amendments sought to change a bill in two or more noncontiguous places.)
Any Senator can appeal the chair’s ruling that a certain amendment is
nongermane, allowing the Senate to overturn that ruling by simple majority vote.
However, the Senate is unlikely to take this action because doing so could
fundamentally undermine the integrity and utility of the cloture procedure. In a
sense, the decision to invoke cloture constitutes a kind of treaty by which Senators
relinquish their right to filibuster in exchange for a guarantee that no nongermane
amendments will be offered under cloture that some of those Senators would want
to filibuster. Unless a Senator could be confident that, under cloture, his colleagues
could not offer amendments on unrelated subjects that the Senator would insist on
filibustering, that Senator would have serious qualms about ever voting for cloture.
Although there are some Senate rules that Senators sometimes choose not to
enforce when enforcing them would be inconvenient, the requirement for germane
amendments under cloture is not one of them. On some occasions when a Senator
did appeal a ruling of the chair under cloture that an amendment was not germane,
Senators who may have supported the amendment on its merits nonetheless voted to
sustain the ruling of the chair with the long-term viability of the cloture procedure in
Cloture is sometimes sought not for the purpose of overcoming a filibuster by
debate, but primarily to trigger the requirement for germaneness of amendments.
One way in which this situation can occur may arise when Senators wish to secure
floor consideration for a bill that the majority party leadership is reluctant to schedule
for floor consideration. Supporters of the bill may offer the text of that bill as a
nongermane amendment to another bill that the majority party leadership is eager to
pass. Opponents of the amendment may respond by moving for cloture on the bill,
then prolonging the debate so as to prevent a vote on the amendment until the time
comes for voting on the cloture motion. If the Senate votes to invoke cloture, the
presiding officer announces that the nongermane amendment is no longer in order.
In this way, its opponents can dispose of the amendment adversely without ever
having to vote on it, or even on a motion to table it—but only, of course, if they can
mobilize three-fifths of the Senate to vote for cloture. This possibility, which is more
than hypothetical, illustrates that not every cloture vote takes place to overcome a
filibuster that is already in progress.
Amendments Submitted in Writing. To be in order under cloture,
amendments must be submitted at the desk in writing (and for printing in the
Congressional Record) before the cloture vote takes place.20 There are different
requirements for first-degree amendments (amendments to change the text of a bill
or resolution) and second-degree amendments (amendments to change the text of a
pending first-degree amendment). Under Rule XXII,
A Senator can call up an amendment that another Senator had submitted in writing, though
Senators rarely do so. Also, a Senator may recall amendments that he or she submitted in
writing before a cloture vote. By recalling an amendment, the Senator removes it from
potential consideration under cloture.
Except by unanimous consent, no amendment shall be proposed after the vote to
bring the debate to a close, unless it had been submitted in writing to the Journal
Clerk by 1 o’clock p.m. on the day following the filing of the cloture motion if
an amendment in the first degree, and unless it had been so submitted at least one
hour prior to the beginning of the cloture vote if an amendment in the second
Senators sometimes submit a large number of amendments to a bill for printing in the
Congressional Record even before a cloture motion is presented. This often is
intended and understood to be a clear signal that the Senators who submitted the
amendments for printing are contemplating a filibuster.
In practice, the deadline in Rule XXII usually gives Senators most or all of a day
after cloture is proposed to draft germane amendments to the bill. Senators then
usually have most or all of the next day to review those first-degree amendments and
to decide what second-degree amendments, if any, they might offer to them. In this
way, Senators can be fully aware of all the amendments they may encounter under
cloture before they vote on whether or not to invoke cloture. (Submitting an
amendment in writing does not exempt that amendment from the restriction that only
germane amendments are in order under cloture.)
Rule XXII establishes no separate deadline for submitting amendments in the
nature of a substitute (i.e., substitutes for the full text of a measure), which are
amendable in two degrees—that is, an amendment to an amendment in the nature of
a substitute is a first-degree amendment.21 An amendment in the nature of a
substitute might be submitted at any time up to the deadline for first-degree
amendments. If it were submitted just before that deadline, Senators might have
essentially no time to prepare amendments to it.
One result of these requirements is that, whenever cloture is proposed, Senators
and their staffs must decide whether they need to prepare and submit amendments to
the measure. When the Senate has voted to invoke cloture on a bill, it is too late for
a Senator then to think about what amendments to the bill he or she might want to
propose. When a cloture motion is filed, Senators often conclude that they need to
proceed with drafting whatever amendments they might want to offer, on the
assumption that the Senate will approve the motion two days later. One result is that
there often are more amendments submitted for printing in the Record than Senators
actually offer after cloture is invoked.
Under cloture, a Senator may not modify an amendment that he or she has
offered. Permitting modifications would be inconsistent with the principle implicit
in the cloture rule that Senators should be able to know what amendments may be
offered under cloture before the Senate decides if it will invoke cloture. Rule XXII
permits only one limited circumstance in which Senators are allowed to change the
amendments they offer under cloture. If a measure or other matter is reprinted for
some reason after the Senate has invoked cloture on it and if the reprinting changes
page and line numbers, amendments that otherwise are in order will remain in order
and can be reprinted to make conforming changes in page and line numbering.
Riddick’s Senate Procedure, p. 88.
Multiple Amendments. Rule XXII states that “[n]o Senator shall call up
more than two amendments until every other Senator shall have had the opportunity
to do likewise.” The evident purpose of this provision is to prevent some Senators
from dominating the Senate’s proceedings under cloture. This restriction, which
Senators have rarely if ever chosen to enforce, does not create a significant problem
for those wishing to consume the time available for post-cloture consideration. From
their perspective, what is most important is that amendments be offered, not who
Dilatory Amendments and Motions. Rule XXII provides that no dilatory
motion or amendment is in order under cloture. Furthermore, the Senate has
established precedents that empower the presiding officer to rule motions and
amendments out of order as dilatory without Senators first making points of order to
that effect from the floor. Presiding officers rarely have exercised this authority. On
occasion, however, and whether at their own initiative or in response to points of
order, presiding officers have ruled amendments and various kinds of motions to be
dilatory and, therefore, not in order.22 For example, motions to adjourn, postpone,
recess, and reconsider have been held to be dilatory. There also is precedent
supporting the authority of the presiding officer to rule that a quorum call is dilatory.
Under normal Senate procedures, appeals from rulings of the chair usually are
debatable (though they also are subject to tabling motions). Under cloture, however,
appeals are not debatable. In extraordinary circumstances, appeals from rulings of
the chair have even been ruled out of order as dilatory.23
Reading and Division of Amendments. Under normal Senate procedure,
each amendment that is offered must be read before debate on it may begin, unless
the reading is waived by unanimous consent, as it usually is. Under Rule XXII,
however, the reading of any amendment automatically is waived if it “has been
available in printed form at the desk of the Members for not less than twenty-four
hours.” This requirement usually is satisfied because amendments considered under
cloture must have been submitted for printing before the cloture vote.
Also, under normal Senate procedure any Senator can demand that an
amendment be divided into two or more component parts if each part could stand as
an independent proposition (but amendments in the form of motions to strike out and
insert are not divisible). Under cloture, however, a Senator cannot demand as a
matter of right that an amendment be divided.24
Amendments that only express the sense of the Senate or the sense of Congress (and,
therefore, would not have the force of law if enacted) have been considered dilatory per se
under cloture. No other type of amendment has been held to be dilatory per se under
In 1982, the presiding officer stated that “the right to appeal is a basic right of each
Senator and would be held dilatory only in the most extraordinary circumstances.”
Riddick’s Senate Procedure, p. 312.
An amendment that was offered and divided before the cloture vote continues to be
considered as divided after cloture is invoked.
The Authority of the Presiding Officer
When the Senate is operating under cloture, the Senate’s presiding officer has
powers that he or she does not have under the Senate’s regular procedures. As
already noted, the presiding officer may rule amendments and motions out of order
at his or her own initiative, without waiting for Senators to make points of order from
the floor, and even without waiting for the amendments to be read. Under the
Senate’s precedents, “[o]nce cloture has been invoked, the Chair is required to take
the initiative to rule out of order dilatory amendments, and the Chair makes the
determination regarding dilatory intent.” Also “under cloture, the Chair has taken the
initiative to rule out of order amendments that were dilatory, nongermane or
improperly drafted as each was called up and before the amendment could be
There is one other potentially important authority that the presiding officer
exercises after the Senate votes to invoke cloture. Under normal Senate procedure,
the chair is not empowered to count whether a quorum is present on the floor. When
a Senator suggests the absence of a quorum, the chair’s only response is to direct the
clerk to call the roll. Under cloture, however, the presiding officer can count to
ascertain the presence of a quorum.
Business on the Senate Floor
Cloture also affects the consequences of a filibuster for other legislative and
executive business that the Senate could conduct. Rule XXII provides that once the
Senate invokes cloture, “then said measure, motion or other matter pending before
the Senate, or the unfinished business, shall be the unfinished business to the
exclusion of all other business until disposed of.” If the Senate invokes cloture on
a bill, in other words, the rule requires the body to continue to consider that bill until
it completes action on it.
The Rule provides no mechanism for the Senate to set aside the matter being
considered under cloture, even temporarily, in order to consider other matters, even
those that are of an emergency nature or far less contentious. As a result, a filibuster
can affect the fate not only of the matter that provokes it, but also other matters that
the Senate may not be able to consider (or at least not as soon as it would like)
because of the filibuster. In practice, however, the Senate often provides by
unanimous consent for the consideration of other matters. Arrangements of this kind
permit the Senate to accomplish necessary routine business, or make progress on
other matters, at the same time as it continues to move toward a final resolution of
the matter on which it has invoked cloture.
Riddick’s Senate Procedure, p. 287.
The Impact of Filibusters
Obviously, a filibuster has the greatest impact on the Senate when a 60-vote
majority cannot be assembled to invoke cloture. In that case, the measure or other
matter that is being filibustered is doomed unless its opponents relent and allow the
Senate to vote on it. Even if cloture is invoked, however, a filibuster can
significantly affect how, when, and even whether the Senate conducts its legislative
and executive business. In fact, it is not an exaggeration to say that filibusters and
the prospect of filibusters shape much of the way in which the Senate does its work
on the floor.
Impact on the Time for Consideration
In principle, a truly determined minority of Senators, even one too small to
prevent cloture, usually can delay for as much as two weeks the time at which the
Senate finally votes to pass a bill that most Senators support. Table 1 summarizes
a hypothetical example. In this example, a motion to proceed to the bill’s
consideration is made on a Monday (Day 1). If a filibuster on that motion is begun
or is anticipated, proponents of the motion and the bill can present a cloture motion
on the same day. However, under Rule XXII, the cloture vote on the motion to
proceed does not take place until Wednesday (Day 3). Assuming the Senate invokes
cloture on Wednesday, there then begins the 30-hour period for post-cloture
consideration of the motion. If the Senate is in session for eight hours per day,
Monday through Friday, the 30-hour period, if fully consumed, will extend over
almost four full days of session, or at least until the end of the Senate’s session on the
following Monday (Day 6). If, at that time, the Senate votes for the motion to
proceed, the bill’s opponents then may begin to filibuster the bill itself, requiring
another cloture motion, another successful cloture vote (on Day 8), and the expiration
of another 30-hour period for post-cloture consideration. Under these conditions,
Rule XXII would require that the vote on final passage occur on the 11th day of
consideration, or the 15th calendar day after the motion to proceed was made.
Table 1. Time That May Be Required for Senate Action
in a Typical Cloture Situation
Cumulative Days Consumed
Motion to proceed made
Cloture motion filed on motion to proceed
Vote on invoking cloture on motion to proceed
Vote on motion to proceed
Cloture motion filed on measure
Vote on invoking cloture on measure
Vote on final passage of measure
How long an actual filibuster can delay final Senate action may be affected by
the answers that can be given, in the individual case, to many questions. These
Is cloture proposed as soon as the motion to proceed is made, and
then again as soon as possible after the Senate takes up the bill (after
having agreed to the motion to proceed)?
Can the bill’s supporters secure the 60 votes needed to agree to the
first cloture motion on the motion to proceed, or is more than one
attempt necessary before the Senate votes for cloture on the motion?
Similarly, does the Senate adopt the first cloture motion on the bill
itself, or is cloture invoked on the bill only on a second or
Can the Senate agree by unanimous consent to expedite the process
by providing for votes on cloture before the time specified in Rule
Are the bill’s opponents willing and able to consume the entire 30hour period for post-cloture consideration of the motion to proceed,
and also the same amount of time for post-cloture consideration of
After the Senate invokes cloture, for how many days, and for how
many hours per day, is the Senate in session to consider the bill?
Does the Senate meet late into the evening, or all night, or on the
weekend, in order to consume both 30-hour periods more quickly
than it otherwise would? Or can unanimous consent be obtained that
the 30-hour periods run continuously?
Although the actual time consumed varies from case to case, clearly filibusters
can create significant delays, even when there are 60-vote majorities to invoke
cloture. How much delay the Senate experiences depends in part on how much time
the Senate, and especially its majority party leadership, is prepared to devote to the
bill in question. If the bill is particularly important to the nation and to the majority
party’s legislative agenda, for example, the majority leader may be willing to invest
the days or even weeks that can be necessary to withstand and ultimately end a
Another consideration is the point in the annual session and in the biennial life
of a Congress at which a filibuster takes place. In the first months of the first session,
for example, there may be relatively little business that is ready for Senate floor
consideration. In that case, the Senate may be able to endure an extended filibuster
without sacrificing its ability to act in a timely way on other legislation. Toward the
end of each session, however, and especially as the Senate approaches sine die
adjournment at the end of the second session, time becomes increasingly scarce and
precious. Every hour and every day of floor time that one bill consumes is time that
is not available for the Senate to act on other measures that will die if not enacted
into law before the end of the Congress. Therefore, the costs of filibusters increase
because their effects on the legislative prospects of other bills become greater and
Even at early stages of a Congress, 30 hours for post-cloture consideration is a
long time for the Senate to devote to any single matter. In fact, the Senate never has
actually consumed the entire 30-hour period for considering any measure or motion
under cloture. As noted earlier, the Senate voted in 1985 to reduce from 100 to 30
hours the time permitted for considering a matter on which cloture has been invoked.
This change in Rule XXII provoked little if any controversy, probably because the
Senate had never even come very close to consuming the entire 100 hours. Cutting
that time by more than two-thirds was not expected to have much practical effect on
the ability of Senators to delay final floor votes.
The Prospect of a Filibuster
However much effect filibusters have on the operations of the Senate, perhaps
a more pervasive effect is attributable to filibusters that have not taken place—at
least not yet. In many instances, cloture motions may be filed not to overcome
filibusters in progress, but to preempt ones that are only anticipated. Also, the
prospect of a filibuster often affects when or whether the Senate will consider a
measure on the floor, and how the Senate will consider it.
Holds. A Senator who does not want the Senate to take up a certain measure,
whether temporarily or permanently, can monitor the Senate floor and then object if
and when the majority leader proposes to call up the bill for consideration. The
practice of placing holds on measures, however, has developed informally as a way
for Senators to interpose such an objection in advance and without having to do so
in person on the floor. For a Senator to place a hold on a bill or resolution is for the
Senator to request that the majority leader not even try to call up the measure for
consideration, at least not without giving advance notice to the Senator who has
placed the hold.
This request has no formal standing in Senate rules, and is not binding on the
leader. Fundamentally, however, when a Senator places the hold, he or she is
implicitly registering his or her intention to object to any unanimous consent request
for the measure’s consideration. In turn, the majority leader and the measure’s
prospective floor manager understand that a Senator who objects to allowing the bill
or resolution to be called up by unanimous consent may back up his or her objection
by filibustering a motion to proceed to its consideration. Recent majority leaders
have accordingly tended to honor holds, both as a courtesy to their colleagues, and
in recognition that if they choose not to do so, they may well confront filibusters that
they prefer to avoid.
In this way, the threat of a filibuster often is sufficient to prevent a bill from
coming to the Senate floor. At a minimum, the bill’s supporters may discuss with the
Senators making the threat (frequently but not necessarily by placing a hold on it)
whether the bill can be amended in a way that satisfies their concerns and removes
any danger of a filibuster. Even if the bill’s proponents are satisfied that they could
invoke cloture on the bill, they still may be willing to accept unwelcome amendments
to the bill in order to avoid a protracted process of floor consideration. In fact,
depending on the importance of the bill and the other measures that await floor
action, the majority leader may be reluctant to schedule the bill unless he is assured
that the Senate can complete action on it without undue delay.
Linkage and Leverage. As noted above, sometimes a filibuster or the threat
of a filibuster can affect the prospects of other bills simply by compelling the Senate
to devote so much time to the filibustered bill that there is insufficient time available
to take up all the other measures that it otherwise would consider and pass. Senators
also have been known to use their rights under Rule XXII to delay action on one bill
as leverage to secure the action (or inaction) they want on another, unrelated measure.
Suppose, for example, that a Senator opposes S. 1, but knows that he or she
lacks the support to filibuster against it effectively. A Senator in this situation may
not have enough leverage to prevent Senate floor consideration of S. 1 or to secure
satisfactory changes in the bill. So the Senator may seek to increase his or her
leverage by delaying, or threatening to delay, the Senate’s consideration of other bills
that are scheduled for floor action before S.1. By threatening to filibuster S. 2, S. 3,
and S. 4, for example, or by actually delaying their consideration, the Senator may
strengthen his or her bargaining position by making it clear that more is at stake than
the prospects and provisions of S. 1. In this way, Senators’ opposition to one bill can
affect the Senate’s floor agenda in unexpected and unpredictable ways.
Consensus. More generally, the possibility of filibusters creates a powerful
incentive for Senators to strive for legislative consensus. The votes of only 51
Senators are needed to pass a bill on the floor. It can, however, require the votes of
60 Senators to invoke cloture on the bill in order to overcome a filibuster and enable
the Senate to reach that vote on final passage. Knowing this, a bill’s supporters have
good reason to write it in a way that will attract the support of at least three-fifths of
all Senators. Since 1980, neither party has ever held 60% of all the seats in the
Senate. Thus, as long as this situation persists, every bill that the Senate passes must
enjoy at least a minimal degree of bipartisan acceptance.
What is more, there often are more bills that are ready to be considered on the
Senate floor than there is time available for acting on them. Under these
circumstances, the majority leader may be reluctant, especially toward the end of a
Congress, even to call up a bill unless he can be assured that it will not be filibustered
at all. The threat of a filibuster may be enough to convince the majority leader to
devote the Senate’s time to other matters instead, even if all concerned agree that the
filibuster ultimately would not succeed in preventing the Senate from passing the bill.
In such a case, a bill’s supporters may not be content with securing the support
of even 60 Senators. In the hope of eliminating the threat of a filibuster, the
proponents may try to accommodate the interests of all Senators, or at least to
convince them that a good faith effort has been made to assuage their concerns. At
best, opponents can become supporters. At worst, opponents may remain opposed,
but may decide against expressing their opposition through a filibuster. While true
consensus on major legislative issues may be impossible, the dynamics of the
Senate’s legislative process do promote efforts to come as close to consensus as the
strongly held beliefs of Senators permit.