Order Code RL32149
CRS Report for Congress
Received through the CRS Web
Proposals to Amend the Senate Cloture Rule
November 14, 2003
Christopher M. Davis and Betsy Palmer
Analysts in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress

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Proposals to Amend the Senate Cloture Rule
Summary
Paragraph 2 of Senate Rule XXII, also known as the “cloture rule,” was adopted
in 1917. It established a procedure, amended several times over the intervening
years, by which the Senate may limit debate and act on a pending measure or other
matter.
Recently, concern by some Senators over an inability to halt consideration and
obtain a confirmation vote on several pending judicial nominations has led to a
renewed interest in amending the Senate cloture rule. One option, called the “nuclear
option” by some, would seek to use a ruling by the presiding officer or a majority
vote of the chamber to end debate. Also, several resolutions have been introduced
to amend the cloture rule to accomplish this end.
S.Res. 138, introduced by Senate Majority Leader Bill Frist on June 26, 2003,
would set up a diminishing threshold for invoking cloture on presidential
nominations that are subject to Senate approval. S.Res. 85, which Senator Zell
Miller introduced on March 13, 2003, applies the same idea to all Senate business,
with the exception of amendments to the Senate’s standing rules. A third proposal,
S.Res. 249, also authored by Senator Miller, and introduced on October 22, 2003,
calls for the elimination of the cloture rule altogether.
This report provides a brief history of the Senate cloture rule, outlines past and
present proposals to amend it, and presents arguments both in support of, and in
opposition to, the Senate’s tradition of unlimited debate. This report will be updated
as events warrant.

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Contents
Brief History of the Cloture Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Features of the Present Cloture Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Proposal Changes to Cloture Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The “Nuclear” Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Frist Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Miller Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statutes and Standing Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Additional Proposals to Limit Senate Debate . . . . . . . . . . . . . . . . . . . . . . . . 9
Arguments in Support of Extended Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Minority Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
No Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Unique Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Arguments in Favor of Strengthening Limitations on Debate . . . . . . . . . . . . . . . 11
Majority Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Efficient Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Speech Protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Additional Points . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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Proposals to Amend the Senate Cloture
Rule
Brief History of the Cloture Rule
Proposals to limit Senate debate are as old as the Senate itself. Over the 214-
year history of the body, numerous procedures have been proposed to allow the
Senate to end discussion and act.1 The most important debate-limiting procedure
enacted was the adoption in 1917 of the “cloture rule,” codified in paragraph 2 of
Senate Rule XXII. Under the current version of this rule, a process for ending debate
on a given measure or matter may be set in motion following a super-majority vote
of the Senate.
Since the Senate’s adoption of the cloture rule in 1917, proposals have been
advanced to repeal or amend it in almost every session of Congress.2 At times,
Senators of both political parties, as well as the parties themselves, have debated the
merits of the Senate’s tradition of free and unlimited debate and argued for and
against making cloture easier to invoke. These debates occurred at different times
and under different sets of circumstances, for example, as Senators attempted to
prevent filibusters of civil rights measures, pass consumer protection legislation, or
secure the confirmation of judicial or executive branch nominations.
Debates on the cloture rule have frequently focused on whether or not the Senate
must consider amendments to it under the body’s existing rules, including Rule XXII
itself. The argument that this situation applies rests on the principle that the Senate
is a “continuing body” which regards its rules as staying in force from one Congress
to the next. A contrary argument contends that this principle has the effect of
“entrenching” the existing rules against change, a situation which amounts to an
unconstitutional limit on the power of the body to set the terms of its own operation.
To overcome these difficulties, Senators attempting to change Rule XXII have
employed various procedural tactics, including seeking to invoke cloture by majority
vote, seeking opinions by the Vice President acting as presiding officer that the
cloture rule itself is unconstitutional, and arguing that the rules do not apply on the
first day of a Congress.
Although many attempts have been made to amend paragraph 2 of Rule XXII,
only six amendments have been adopted since the cloture rule was enacted in 1917,
1 U.S. Congress, Senate Committee on Rules and Administration, Senate Cloture Rule:
Limitation of Debate in the Congress of the United States, committee print, prepared by the
Congressional Research Service, 94th Cong., 1st sess. (Washington: GPO, 1975), p. 61.
2 U.S. Library of Congress, Congressional Research Service, Limitation of Debate in the
United States Senate, by George B. Galloway, (Washington: December, 1956) p. 5;

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those undertaken in 1949, 1959, 1975, 1976, 1979 and 1986. Each of these changes
was made within the framework of the existing or “entrenched” rules of the Senate,
including Rule XXII.3
In 1949, the cloture rule was amended to apply to all “matters,” as well as
measures, a change which expanded its reach to nominations and other executive
business as well as most motions to proceed to consider measures. A decade later,
in 1959, its reach was further expanded to include debate on motions to proceed to
consider changes in the Senate rules themselves. The threshold for invoking cloture
was lowered in 1975 from two-thirds present and voting to three fifths of the full
Senate except on proposals to amend Senate Rules. In a change made in 1976,
amendments filed by Senators after cloture was invoked were no longer required to
be read aloud in the chamber if they were available at least 24 hours in advance.4
In 1979, Senators added an overall “consideration cap” to Rule XXII to prevent
so-called post-cloture filibusters, which occurred when Senators continued dilatory
parliamentary tactics even after cloture had been invoked. In 1986, this
“consideration cap” was reduced from 100 hours to 30 hours to meet the demands of
a modern Senate whose proceedings were televised nationally.
Features of the Present Cloture Rule
In its current form, which was adopted in 1986, Rule XXII provides that a
cloture motion must be signed by 16 senators and presented on the Senate floor. One
hour after the Senate meets on the second calendar day after a cloture motion has
been filed and after a quorum has been ascertained, the presiding officer puts the
question, “Is it the sense of the Senate that the debate shall be brought to a close?”
The cloture motion is then subject to a yea-and-nay vote.
If three-fifths of Senators — 60 if there are no vacancies in the body — vote for
the cloture motion, the Senate must take final action on the matter on which it has
invoked cloture by the end of 30 total hours of additional consideration. Invoking
cloture on a proposal to amend the Senate’s standing rules requires a higher
threshold, approval by two-thirds of the Senators present and voting, or 67 senators
if there are no vacancies and all Senators vote. Once cloture has been invoked, the
clotured matter remains the pending business of the Senate until it is disposed of and
no Senator may speak for more than one hour. Senators may yield all or part of their
allotted hour to a floor manager or floor leader, who may then yield time to other
Senators. Each floor manager and leader, however, can have no more than two hours
in total yielded to him or her. As with most Senate procedures, any of these
requirements may be waived by unanimous consent.
3 U.S. Congress, Senate Committee on Rules and Administration, Senate Cloture Rule,
Limitation of Debate in the Congress of the United States and Legislative History of
Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule),
committee print, 99th Cong. 1st sess. (Washington: GPO, 1985), pp. 15-16.
4 Ibid, pp. 123-124.

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After cloture has been successfully invoked, no dilatory amendments or motions
are permitted, and all debate and amendments must be germane. Only amendments
filed before the cloture vote may be considered, and Senators may not call up more
than two amendments until every other Senator has had an opportunity to do
likewise. Printed amendments that have been available for at least 24 hours are not
read when called up.
Time for votes, quorum calls, and other actions is charged against the 30-hour
limit on consideration. This time limit may be extended by joint leadership motion
if three-fifths of all senators vote for a non-debatable motion to do so. Senators who
have not used or yielded ten minutes of their hour are guaranteed up to ten minutes
to speak. When all time expires, the Senate immediately votes on any pending
amendments and then on the underlying matter.5
Proposal Changes to Cloture Procedure
Concern by some Senators over an inability to halt debate and obtain a
confirmation vote on several pending judicial nominations has led to a renewed
interest in amending the Senate cloture rule and the introduction of several
resolutions on the subject. Proposals under discussion include:
The “Nuclear” Option
Media reports have focused on the possible use of what has been called,
primarily by its opponents, a “nuclear” parliamentary option to end debate and vote
on certain stalled nominations.6 Under such a scenario, the chair, perhaps occupied
by the Vice President serving as Presiding Officer or by the President Pro Tempore
of the Senate, would set aside the existing provisions of Rule XXII and rule that
cloture could be invoked by simple majority vote. Supporters of such an approach
argue that if such a ruling were appealed by opponents or submitted to the Senate for
decision, and then sustained by a majority vote, debate would end and the pending
business could then be brought to a vote. In another version of this scenario, a
Senator might raise a constitutional point of order against the decision that cloture
had not been invoked on a matter, and the same end achieved if the point of order
were sustained by a majority vote of Senators. Supporters argue that this proceeding
would be permissible because under the Constitution, the Senate has the express right
to make, or change, the rules of its proceedings at any time. They further point out
that such constitutional questions are traditionally submitted to a vote of the full
5 CRS Report 98-425, Invoking Cloture in the Senate, by Christopher M. Davis.
6 Geoff Earle, “‘Nuclear’ Option Retained to Break Filibuster,” The Hill, June 25, 2003, p.
1. Mike Allen, “GOP Plans ‘Marathon’ On Judges; Debate to Spotlight Blocked Nominees,”
The Washington Post, Nov 8, 2003. p. A.01. Charles Hurt, “Senate GOP Fuzzy on Tactics
to Handle Judicial Filibusters; Frist Dodges ‘Nuclear Option’ Query,” The Washington
Times, Sep. 7, 2003. p. A.06.

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chamber for decision.7 Under this latter scenario, however, the chair would likely
have to also overrule the precedent that constitutional questions are debatable,
perhaps by stating that the body has a right to “get to the question” at hand.
Opponents have used the term “nuclear” to describe these scenarios because of
their belief that its use would destroy the comity and senatorial courtesy necessary
in a body that operates largely by unanimous consent. They further argue that such
an approach might destroy the unique character of the Senate itself, making it more
like the House of Representatives, where a majority has the ability to halt debate any
time it wishes.8
Observers point out that such a parliamentary proceeding is not unprecedented.
On several occasions, Vice Presidents acting as presiding officer, including Vice
Presidents Richard Nixon, Hubert Humphrey and Nelson Rockefeller, offered
advisory opinions from the chair that the provisions of Rule XXII can be changed by
a majority vote of the Senate at the beginning of a Congress.9 In 1975, a ruling to
this effect, submitted to the chamber by Vice President Nelson Rockefeller, was
sustained by a vote of the Senate.10 The Senate later reversed itself by recorded vote,
but whether this obliterated the precedent permitting cloture by majority vote has
been a source of disagreement. For example, Senator Robert C. Byrd, the architect
of the 1975 cloture amendment, observed that the reversal vote “erased the precedent
of majority cloture established two weeks before, and reaffirmed the “continuous”
nature of Senate rules.”11 Others argued that such a precedent was established and
was not overturned. Senator Walter F. Mondale observed, “...the Rule XXII
experience was significant because for the first time in history, a Vice President and
a clear majority of the Senate established that the Senate may, at the beginning of a
new Congress and unencumbered by the rules of previous Senates, adopt its own
rules by majority vote as a constitutional right. The last minute votes attempting to
undo that precedent in no way undermine that right.”12
Frist Proposal
Another proposal to amend the cloture rule was introduced on May 9, 2003, by
Senate Majority Leader Bill Frist. His resolution (S.Res. 138) would add a new
section to the end of Rule XXII, and create a cloture process applicable only to the
7 Chuck Lindell, “GOP Girds for Filibuster War; Senators Threaten to Use Last Resort to
Clear Judicial Nominees,” Austin American Statesman, Nov. 9, 2003, p. A1.
8 Ibid.
9 U.S. Congress, Senate Committee on Rules and Administration, Senate Cloture Rule,
Limitation of Debate in the Congress of the United States and Legislative History of
Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule),
committee print, 99th Cong. 1st sess. (Washington: GPO, 1985), pp. 23-32.
10 David Miller, “Panel OK’s Measure that Would Change Rules For Approving Judicial
Nominees,” CQ Committee Coverage, June 24, 2003.
11 Robert C. Byrd, “The Senate, 1789-1989, Addresses on the History of the United States
Senate,” vol. 2 (Washington: GPO, 1991), p. 132.
12 Walter F. Mondale, “The Filibuster Fight,” The Washington Post, Mar. 18, 1975, p. A16.

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confirmation of nominees. Any nomination requiring Senate confirmation would be
subject to this new procedure, including nominees to the U.S. Supreme Court, the
U.S. Court of Appeals, District Courts, members of the President’s cabinet, and
lower-level agency executives.13
As under the current rule, the new cloture procedure envisioned by Senator
Frist’s S.Res. 138 would begin with the filing of a written cloture petition that
contains the signatures of 16 Senators, which would lie over before being considered
on the following calendar day plus one. However, under S.Res. 138, the number of
votes needed to invoke cloture on a nomination would diminish steadily over time.
Under the procedure proposed by Senator Frist, as with current practice, the first
cloture petition filed on a nomination would need the votes of 60 Senators for cloture
to be invoked. If 60 Senators did not vote for cloture, a second petition could then
be submitted. When the Senate voted on that petition, just 57 Senators would be
required to invoke cloture. On the third petition, the required vote would fall to 54
Senators, and on a fourth petition the votes of 51 Senators would invoke cloture. The
cloture threshold would never drop below a majority vote of the full Senate.
Senator Frist’s proposal is similar to a proposal to amend Rule XXII offered in
1995 by Senators Tom Harkin and Joseph I. Lieberman. Under that proposal, the
majority required to close debate on all measures on the executive and legislative
calendars (not just nominees as in the Frist proposal) would decline on successive
cloture votes from 60, to 57, to 54, and finally to 51.14 Additionally, the Frist
resolution would prohibit the filing of a further cloture petition on a nomination until
the Senate disposed other pending cloture motions on that nomination. Currently,
cloture petitions can be filed on successive days, or even on the same day, without
first disposing of the previous petition. In addition, the Frist resolution would require
that no cloture petition could be filed until a nomination had been pending in the
Senate for 12 hours.
The Senate Committee on Rules and Administration held a hearing on the Frist
resolution on June 5, 2003 and ordered the resolution reported by voice vote on June
24.15 On November 12, 13 and 14, 2003, the Senate debated the Frist resolution and
cloture motions on several judicial nominations for a period of 40 hours.16
Supporters of Senator Frist’s resolution have argued that extended debate in the
Senate is particularly troubling when it comes to presidential nominations. John C.
Eastman, constitutional law professor at the Chapman University School of Law, told
13 For more information on nominations needing Senate confirmation, see CRS Report
RL31346, Presidential Appointments to Full-time Positions in Executive Departments
During the 107th Congress, 2001-2002, by Henry B. Hogue.
14 Text of S.Amdt. 1, Congressional Record, daily edition (Jan. 4, 1995), p. S422.
15 Press reports indicate that no Democrats were present at the meeting. See John Cochran,
“Senators Uneasy with Proposal to Alter Filibuster Rule on Judicial Nominations,” CQ
Weekly, vol. 61 (June 28, 2003), p. 1605.
16 Congressional Record, daily edition (Nov. 12, 2003), p. S14528.

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the Senate Rules and Administration Committee on June 5 that inherent in the
Constitution is the requirement that nominations be confirmed only by majority vote.
“The advice and consent role envisioned by the Constitution’s text,” Eastman argued,
“is one conferred on the Senate as a body, acting pursuant to the ordinary principle
[sic] of majority rule.”17 Because it takes 60 votes to invoke cloture, the process of
filibustering a nomination is inherently unconstitutional,18 he argued.
Supporters of the Frist resolution contend that the filibuster of nominations takes
power away from the President. “Obstructionist delay in the consideration of either
executive or judicial nominations harms the separation of powers,” said Douglas W.
Kmiec, Dean of The Catholic University of America School of Law. “There is a
constitutional duty to provide timely advice and consent on judicial nominees.”19
While there are other avenues for a Senator trying to get a bill that is being
filibustered through the process (such as by amending some other measure or with
the aid of a House colleague), Senator Frist has also explained, there is no other way
to have a nomination confirmed except by a vote of the full Senate. “There is no
safety valve. Filibustering nominations is filibustering in its most potent and virulent
form, and even if a majority of Senators stand ready to confirm, such filibusters can
be fatal,” he said.20
Those who oppose the Frist resolution argue that it would tilt the balance of
power too heavily toward the President in the nomination and confirmation process.
They also maintain that there is not enough evidence of a problem to merit changing
one of the basic features of the Senate, the potential for unlimited debate. Finally,
they assert that such a change could challenge the Senate’s ability to exercise its
constitutional and institutional right to independently assess the qualifications of
nominees.
“If we cede power to the President, I don’t think we’ll ever get it back,” said
Christopher J. Dodd (D-CT), ranking Democrat on the Senate Rules Committee at
the June 5 hearing. “[The Frist] resolution ... would fundamentally undermine the
Senate’s role in our constitutional democracy, cede enormous powers to the
Executive and upset the deliberate system of checks and balances intended by the
17 Testimony of Professor Eastman, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,
1st sess., June 5, 2003. The testimony is available online at
[http://rules.senate.gov/hearings/2003/060503Eastman.htm], visited Oct. 27, 2003.
18 For a broader discussion of constitutionality, see CRS Report RL 32102, Constitutionality
of a Senate Filibuster of a Judicial Nomination, by Jay R. Shampansky.
19 Testimony of Dean Kmiec, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,
1st sess., June 5, 2003. The testimony is available online at
[http://rules.senate.gov/hearings/2003/060503Kmiec.htm], visited Oct. 27, 2003.
20 Testimony of Senator Frist, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,
1st sess., June 5, 2003. The testimony is available online at
[http://rules.senate.gov/hearings/2003/06050], visited Oct. 27, 2003.

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Framers.”21 Senator Dodd noted that the bulk of President Bush’s nominees have
been confirmed, pointing out that in the 107th Congress, President Bush submitted
347 nominations, of which 297 were confirmed, two were withdrawn and 48 were
returned to him.22 During the 106th Congress, President Clinton submitted 136
nominations and made 18 recess appointments to full-time positions requiring Senate
confirmation. The Senate confirmed 108 nominations and returned 24; the President
withdrew four nominations.23
“Our paramount and overriding concern should be to protect the role of the
Senate under the Constitution,” argued Senator Edward M. Kennedy. “Under the
[Frist] proposal now before us, the number of votes required to terminate debate on
nominations would be reduced from 60 to 51. A simple majority of the Senate would
be able to end debate, and the Senate would put itself on a course to destroy the very
essence of our constitutional role.” The proposal, “would inevitably lead to pressure
to make the same change for ending debate on legislation.”24
William and Mary law professor Michael J. Gerhardt testified that a filibuster
of a nominee does not completely block the President from filling the vacancy at
issue, pointing out that the President can fill the seat by making a recess appointment,
which would not require Senate confirmation (although the office would be filled
only until the end of the next session) or appointing an acting official under the
Federal Vacancies Reform Act.25
Miller Proposals
Two other proposals to amend the cloture rule have been introduced by Senator
Zell Miller. On March 13, 2003, Senator Miller introduced a resolution (S.Res. 85)
that would alter the cloture procedure for all measures, motions, or matters to come
before the Senate. The new process would be identical to that proposed by Senator
Frist in S.Res. 138, except where the Frist resolution would only apply to presidential
nominations, Senator Miller’s proposal to have a gradually declining threshold for
21 Testimony of Senator Dodd, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,
1st sess., June 5, 2003. The testimony is available online at
[http://rules.senate.gov/hearings/2003/06050], visited Oct. 27, 2003.
22 CRS Report RL31346, Presidential Appointments to Full-time Positions in Executive
Departments During the 107th Congress, 2001-2002, by Henry B. Hogue.
23 CRS Report RL30524, Presidential Appointments to Full-Time Positions in Executive
Departments During the 106th Congress, 1999-2000, by Rogelio Garcia.
24 Testimony of Senator Kennedy, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,
1st sess., June 5, 2003. The testimony is available online at
[http://rules.senate.gov/hearings/2003/06050], visited Oct. 27, 2003.
25 Testimony of Professor Gerhardt, in U.S. Congress, Senate Committee on Rules and
Administration, Senate Rule XXII and Proposals to Amend This Rule, hearings, 108th Cong.,
1st sess., June 5, 2003. The testimony is available online at
[http://rules.senate.gov/hearings/2003/060503Gerhardt.htm], visited Oct. 27, 2003.

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invoking cloture would apply to all Senate business except changes to the Senate’s
standing rules, which would maintain the current two-thirds of those present and
voting to stop debate.26
On October 22, 2003, Senator Miller introduced a second resolution (S.Res.
249) that would delete paragraph 2 of Rule XXII entirely. Senator Miller argued that
by removing provisions within Senate rules for invoking cloture, it would then
“require a simple majority to end a filibuster.”27 The cloture rule, however, is the
only mechanism by which debate can be stopped in the United States Senate28 and
before the cloture rule was enacted in 1917 it was not possible to stop debate without
achieving unanimous consent.
Statutes and Standing Orders
Another option that has been suggested is to establish procedures to limit debate
by means other than changing Senate standing rules.29 One example of this might
be to amend the standing orders of the Senate, instead of its standing rules. Another
possible example of such an approach would be to pass an expedited procedure
statute. Expedited procedure statutes, often called “fast track” statutes, are laws that
establish special procedures for the consideration of measures in one or both
chambers of Congress. These laws frequently mandate timely floor scheduling, limit
time for committee consideration, floor debate, and amendment, and establish
mandatory ‘hookup’ procedures to ensure that both chambers act on the same
measure.30 Numerous expedited procedure statutes are currently in effect and act as
the equivalent of standing rules of the House and Senate, including such well-known
examples as the Congressional Budget Act, the War Powers Act, the Nuclear Waste
Policy Act, the Trade Act of 1974 and the Congressional Review Act, by which the
Senate can vote on resolutions to disapprove proposed agency regulations.31
A potential advantage of an expedited procedure statute is that it presumably
would only require 60, rather than, 67 Senators normally required to invoke cloture
on such a proposal. This would presumably also apply to amendments to the
Senate’s standing orders. This is because the special provision for cloture on rules
proposals is understood to apply only to amendments to the standing rules.

26 “Miller Seeks to End Senate Gridlock With Bill to Change Filibuster Rule,”
[http://miller.senate.gov/press/2003/031303-cloture-bill.html], visited Nov. 11, 2003.
27 “Miller to Senate: Let the Majority Prevail,” Oct. 22, 2003. Available at
[http://miller.senate.gov/press/2003/102203filibuster.html], visited Nov. 3, 2003.
28 CRS Report 98-425, Invoking Cloture in the Senate, by Christopher M. Davis.
29 John Cochran, “Lott Has a Better Idea to Stop Senators From Anonymously Blocking
Bills and Nominations,” CQ Today, July 9, 2003.
30 CRS Report RL30599, Expedited Procedures in the House: Variations Enacted Into Law,
by Christopher M. Davis.
31 CRS Report RS20234, Expedited, or “Fast Track” Legislative Procedures, by
Christopher M. Davis.

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By relying on statute, provisions of this type might be passed as a freestanding
measure, or attached to another piece of legislation. If supporters thought it aided
them, an expedited procedure statute limiting debate might even originate in the
House of Representatives where they could be attached by special rule to one or more
pieces of ‘must pass’ legislation, creating momentum for their consideration in the
Senate.
Why would it be appropriate for procedures governing nominations to be placed
in statute? Supporters might argue that it is precisely because they deal with a power
in which both the legislative and executive branches of government are involved.
Such an approach might also offer proponents political arguments over attempts to
change standing Senate rules. For example, supporters might argue, “If it is the law
that the Senate must vote on disapproving government regulations on arcane subjects
like migratory birds or the content of upholstered furniture, shouldn’t it be the law
of the land that something as important as nominations for our federal courts receive
an up or down vote?”
Opponents of using expedited procedures or changes in the standing orders
might argue that it violates the spirit of Senate tradition by changing Senate rules
outside the regular process for amending them. Opponents might also argue that
while expedited procedures are fine for a few individual pieces of legislation or
functions, such as disapproving agency regulations, they are not appropriate for an
important constitutional function like the confirmation of presidential nominees.
Additional Proposals to Limit Senate Debate
In its 214-year history, numerous proposals have been put forth to limit Senate
debate.32 These include the following:
! amending Rule XXII to provide for cloture by majority vote;
! adopting a rule providing for the use of a motion for the previous
question, of the type used in the U.S. House of Representatives to
end debate;
! adopting a rule that debate and amendment must be germane to the
subject under consideration, either to all business at all times, or
only to specific business or only at limited times. (For example, to
appropriations and revenue bills, or in the closing days of a
congressional session.);
! limiting the duration of debate by special rule, as in the House;
! enforcing the existing rules of the Senate by requiring a speaking
Senator to stand and not sit or walk around;
! enforcing the rule that “no Senator shall speak more than twice upon
any one question in debate on the same day without leave of the
Senate, which shall be determined without debate”;
! taking a Senator “off his feet” for using unparliamentary language;
32 U.S. Congress, Senate Committee on Rules and Administration, Senate Cloture Rule:
Limitation of Debate in the Congress of the United States, committee print, prepared by the
Congressional Research Service, 94th Cong., 1st sess. (Washington: GPO, 1975), p. 61.

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! making a point of order against frequent quorum calls that no
business has intervened since the last roll call;
! having the chair rule against dilatory motions on points of order
raised from the floor;
! objecting to the reading of papers;
! enforcing the provision of Jefferson’s Manual that “No one is to
speak impertinently or beside the question, superfluously, or
tediously;”
! letting the chair reverse the precedent, established in 1872, that
Senators may not be called to order for irrelevancy of debate;
! letting the chair make use of the power of recognition;
! letting there be objection to yielding, even though the Senator who
has the floor consents to an interruption; and
! resorting to prolonged or continuous sessions to make it more
difficult on those who want to stage a filibuster.
Arguments in Support of Extended Debate33
Minority Rights
It is a key safeguard of the American system of government that the Senate so
strongly protects the rights of a block of Senators who do not command a majority
(51). Supporters of this argument believe that legislative minorities have rights
which no majority should be able to easily override. Further, they argue, obstruction
is justified to prevent a majority from trampling upon the rights of a minority until
a broad political consensus has developed on an issue. The structure of the Senate
was intended to protect the rights of smaller states, and it is asserted that such a
change would undermine this intent.
No Harm
Defenders of extended debate also contend that, in the long run, matters that are
truly in the nation’s best interest have not been permanently blocked by extended
debate. Nearly every important bill blocked by a filibuster, they maintain, eventually
has been enacted and those bills which ultimately failed because of an extended
debate would have been bad for the country. Likewise, the Senate’s tradition of
debate has protected both political parties at different times in history. The cloture
rule has been in effect for nearing 100 years with little ill effect, they contend.
33 Several arguments from this and the following section are drawn from U.S. Congress,
Senate Committee on Rules and Administration, Senate Cloture Rule: Limitation of Debate
in the Congress of the United States, committee print, prepared by the Congressional
Research Service, 94th Cong., 1st sess. (Washington: GPO, 1975), pp. 55-58.

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Unique Role
Supporters of extended debate believe that the ability of any Senator to speak
at length about virtually any topic at any time is a unique characteristic of the Senate
which allows the chamber to play a vital role in the legislative process, cooling
passions and forcing deliberation. Furthermore, supporters argue, this feature was
one that was intended by the Framers, differentiating the Senate from the House.
Removed of this deliberative function, the Senate would become a shadow of the
larger House of Representatives, they say. In addition, because the Senate alone has
the right to act on executive business, nominations and treaties, the function of
extended debate can act as a check on the executive branch.
Arguments in Favor of Strengthening
Limitations on Debate
Majority Rule
The ability of a Senate minority to block actions supported by a clear majority
thwarts one of the basic premises of American government, majority rule.
Supporters of changing the system argue that it is undemocratic to allow a
determined minority to prevent an institutional majority from working its will — the
current process, they say, gives too much power to the minority at the expense of the
majority. Further, they believe, it undermines public accountability of the majority,
which is in charge of running the chamber, if they cannot get their agenda considered
and passed by the Senate because of procedural problems.
Efficient Action
The Senate is a legislative body and should be able to act on matters before it
in a timely and efficient manner. Extended debate by one Senator or a small group
of Senators is to waste time and money, supporters of changing debate rules argue,
and brings public disrepute because the Senate cannot act in a timely fashion on
important issues. Much legislation and several qualified nominations have been
delayed or defeated by extended debate, they contend.
Speech Protected
Changing the rules would not inhibit freedom of speech in the Senate. Current
proposals to change the rules would provide those who oppose a bill or matter
significant time to discuss the proposal, but would not allow them to block action on
it if a majority of the Senate supported it. All a limitation on debate demands,
supporters say, is the ability to have a fair up or down vote; it does not mandate a
particular outcome.

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Additional Points
Other points raised during discussion of the cloture issue include:
! Some argue that a number of Senators might view proposed changes
to the cloture rule as a diminution of their rights, by making it much
more difficult to block confirmation of a nominee. As a result, if the
rules change is adopted, it raises the question whether it would
increase pressure to require Senate confirmation for more executive
branch positions, so as to allow the Senate to retain a robust role in
the confirmation process.
! The rule change proposed by the Frist and Miller resolutions would
apply to all presidential nominations. Some have wondered whether
nominations for the courts, the third branch of government, should
be treated the same as those to the executive branch or whether the
two groups of nominations should have different thresholds for
approval or different procedures for stopping debate.
! Could stronger enforcement of existing rules — such as the two
speech rule — and disallowing informal but time consuming
practices — such as suggesting the absence of a quorum — permit
more efficient action on nominations or other matters?

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