Filibuster Reformology, Part 2: The 67-Vote Option
This is the second post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate (it doesn’t) and categorized three options for reform: the 67-vote option, the 51-vote option, and the 60-vote option.
Before we dig into the mechanics, we need a general introduction to the seamy underworld of Senate procedure. The Congressional Research Service (pdf) will ferry us in:
The Senate is governed by the Constitution, the Standing Rules of the Senate, permanent Standing Orders of the Senate (adopted in prior Congresses), temporary Standing Orders of the Senate (adopted at the beginning of each Congress), and statutes. It is also governed by precedents, which are decisions made by the presiding officer of the Senate, or the body itself, concerning how its rules operate in practice. [...] Precedents have tremendous weight in deciding parliamentary questions in the Senate, and the presiding officer, whether the Vice President or a majority party Senator, is expected to be guided by these precedents when ruling on a pending question.
The Standing Rules of the Senate would seem to be the obvious place to start if a Senator desired to change that chamber’s procedures. If there is no substantial opposition, the Standing Rules of the Senate can be changed by a simple majority vote; there is no supermajority requirement for changing the rules. If, however, there is opposition to the proposed rules change and if opponents seek to prevent a final vote on the proposal by extended debate and amendment, known as a filibuster, a supermajority requirement does exist for invoking cloture, or ending debate, on a rules change. Senate Rule XXII, which sets out the process for invoking cloture, requires that two-thirds of those present and voting (67 if all Senators participate) vote to invoke cloture on a rules change.
Okay, let’s unpack that a little. First, note that the filibuster is a consequence of the fact that, in its default mode, the Senate allows unlimited debate (and amendment) on any measure. If you want to get to a vote, you have to ask for one. If no senator objects, you can have a vote right away. But if even a single senator objects, you get nothing. At that point you can either give up, try again later (with no guarantee of different outcome), or petition for cloture under Rule XXII.1
“Cloture,” for the uninitiated, means bringing debate to a close. In most circumstances, it is achieved (or “invoked” in the lingo) by an affirmative vote of 3/5 of senators “duly chosen and sworn,” or 60 votes. Invoking cloture on a given measure (a bill, amendment, or whatever) has the effect of breaking a filibuster (on that measure) and allows the Senate to proceed to an “up-or-down” vote, decided by simple majority.
Reforming the filibuster means changing the requirements for cloture; and that means amending, superseding, or sidestepping Rule XXII.
A motion to amend the Senate’s rules can be filibustered like anything else that isn’t specifically exempt from the normal rules (as is the budget reconciliation process). But cloture on a motion to amend the rules requires 2/3 of Senators “present and voting,” or 67 votes.
So, under the normal rules and precedents of the Senate as they are currently understood, it would take 67 votes to change the cloture rule. That’s pathway number one to reform—the most straightforward of the three: the “Rule-22 Option.” Get 67 votes in the U.S. Senate, and you can rewrite the rules.
Obviously that’s a tall order. Next we’ll look at reform options with lower thresholds for votes, but much higher thresholds for intrigue. Head for the shelter, everyone. We’re going nuclear.
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[...] Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate. In Part 2, I looked at the 67-vote option for reform under Senate Rule XXII. In Part 3, I canvassed the [...]