The Case for Cloture

By Habib Olapade

Habib Olapade is a rising senior at Stanford University studying political science.

The framers designed the Senate so that it would provide a check on the House of Representatives by engaging in careful deliberation over measures passed by the lower chamber. The six year terms, equal state representation, and per capita voting scheme set out in Article I, Section 3 of the constitution ensured that senators would take a more far sighted perspective on national issues and protect state’s rights while preventing senators from becoming too beholden to the legislative bodies that elected them. Today, however, none of these institutional characteristics are the primary means by which a disgruntled senator prolongs debate on a pending measure. Instead, Senate Rule XXII, a parliamentary procedure whereby the consent of 60 senators is necessary to end debate on a piece of legislation, has taken center stage. Several constitutional law scholars have argued that Rule XXII is repugnant to the fundamental charter because it is not specifically authorized in the document, violates the norm of majority rule, impedes the president’s nominating authority, and impermissibly binds future Senates. A close inspection of each of these arguments, though, reveals serious flaws.
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The first argument that detractors of Rule XXII regularly propound is that the procedure is unconstitutional because the document specifically sets forth seven situations where the Senate can act only with a supermajority: impeachment, expulsion of a Senator, overriding vetoed legislation, ratification of treaties, constitutional amendments, declarations of presidential disability, and removal of individual disability to serve in Congress. In other words, the expression of one thing, is the exclusion of the other. For instance, if I asked someone to purchase fruits for me, a necessary implication of my request would be that I was not asking the same person to purchase vegetables because those articles were not included in the request. If the framers wanted to authorize the Senate to adopt more supermajority requirements such as Rule XXII, the argument runs, they would have explicitly provided such a mechanism instead of painstaking enumerating seven scenarios where a supermajority vote was required.

The problem, though, is that the constitution does contain such a provision. Indeed, article I § 5 provides in part that “each House may determine the rules of its proceedings.”  Moreover, the detractors’ argument assumes that Rule XXII and the seven supermajority requirements are of the same genus. To the contrary, the seven specified scenarios all deal with specific substantive matters such as impeachment or presidential disability while Rule XXII is a procedural hurdle that applies to all forms of legislation. The detractors treat the seven requirements and Rule XXII as if they are both fruits when in reality the latter is a vegetable.

In response, detractors insist that Rule XXII is still unconstitutional because it violates the requirement that only a majority is needed to pass regular legislation in the Senate. Again, however, the detractors confound substantive and procedural votes. The cloture vote mandated by Rule XXII is not a vote on the substance of the bill itself but rather, a vote on whether the Senate should hold a vote on the substance of the bill. A brief thought experiment will demonstrate this distinction. A senator, for example, who is hostile to a piece of legislation, may vote in favor of cloture simply because she or he wishes to go on record as opposing the measure when the actual substantive vote is held. A vote in favor of, or against cloture, tells one nothing about the voter’s opinions on the merits of a bill. The substantive vote only requires the constitutionally mandated majority. The procedural vote, by virtue of the Senate’s legitimate preference, does not.

On their heels, detractors counter that Rule XXII nonetheless cannot stand because it applies to presidential appointments and interferes with the commander-in-chief’s obligation to take care that the laws are faithfully executed by fully staffed the executive and judicial branches. There are three responses to this claim. First, the Senate’s reinterpretation of Rule XX in November of 2013 now allows a simple majority to invoke cloture on, and confirm, the vast majority of executive and judicial appointees. The appointments claim, therefore, is far from robust. Second, the Senate has the constitutional prerogative to go about confirming nominees in whatever manner it wishes once the president has submitted her or his selection. Indeed, the appointments clause does not contain a specified time limit for confirmations, nor does the clause spell out the manner in which nominees are to be confirmed. So long as the Senate does not physically intrude on the president’s selection and vetting process, which is quite onerous, the president’s nomination power is preserved intact. Finally assuming that Rule XXII does intrude on the president’s nominating authority, it is not clear that this intrusion is any more invasive than other measures which all concede to be constitutional.

​For example, it is customary for a president appointing an official who will act in a given state to solicit the advice of that state’s senators when selecting an official. This tradition of senatorial courtesy is almost always respected by both executive officials and senators. Indeed, it is common practice that nominees, who have not been approved by their state’s senator, will almost never have their nomination reported favorably out of the relevant committee. The greater power includes the lesser. If senators can exercise this level of control over the president’s selection of nominees, which is admittedly at the core of the executive’s prerogative, it is hard to believe that Rule XXII, which applies only to internal senate deliberations, violates the constitutional separation of powers.

Pushed into a corner, Rule XXII’s detractors pull out their trump card: the cloture vote cannot be constitutional they say, because it can only be amended by a two-thirds vote. This super-majority requirement allows a past senate to freeze its procedural preferences for a prolonged period of time by making it close to impossible for a future senate to repeal Rule XXII. To the detractors, this stasis makes the cloture requirement unconstitutional because past legislatures may not bind future ones to any given course of action. For example, the members of the First Congress, therefore, had no ability to dictate how future Congresses should vote on issues.  

This argument, while facially attractive, must fail because it proves too much. If legislative assemblies may not be bound by the previous procedural deliberations of past bodies why are they bound to respect the previous substantive decisions of past Congresses as well? Taken to its logical conclusion, the detractors’ argument would call into question the very idea of a written constitution and dictate that every law passed by a previous legislature must be repealed upon the election of a new legislature. It follows that the charges of Rule XXII’s unconstitutionality are hollow, indeed.   
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To say that Rule XXII is constitutional is not to say that it is a desirable procedure. At the end of the day the constitution cannot save a populace that is willing to forgo wise counsel. If a popular movement to amend Rule XXII is going succeed, however, reformers must come to grips with the fact that the courts will not play a pivotal role in this matter. Instead, the burden is left where it should be – with the people themselves.

Photo Credit: Flickr User US Capitol   

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