Debate and Cloture RECENT DEVELOPMENTS IN THE SENATE
At the convening of almost every Congress from 1961 until 1975, attempts were made to reduce the vote required to invoke cloture to three-fifths of Senators present and voting. On most of these occasions, opponents mounted a filibuster against a motion to proceed to consider a measure to change the rule. Supporters attempted to overcome these filibusters by asking the chair to rule that the Senate's constitutional power to make its rules required it to be able to reach such questions by majority vote. Although they sometimes obtained favorable rulings, they were never able to achieve a change by using this argument.
During this time, several compromise proposals were developed, including: (1) applying the reduced requirement only to appropriation bills and conference reports; (2) reducing the majority required on each successive cloture vote; (3) requiring the needed majority to include a majority of each party; and (4) substituting a requirement of three-fifths of the full Senate (60 votes).
In 1975, this last proposal, originated by then Majority Whip Robert C. Byrd, was adopted for most measures, but the two-thirds requirement was retained to limit debate on measures changing the Senate's standing rules. In addition, since 1959 motions to proceed to consider rules changes have been debatable even if offered during the ``morning hour'' when other legislative proposals can be brought up without a debatable motion. These provisions are intended to protect Senators against rules changes that might further restrict their prerogatives.
Since the 1970s, Senate leaders have used cloture increasingly to overcome filibusters, and the Senate has accepted it increasingly as a normal tool for the management of the floor agenda. Leadership started moving for cloture (1) multiple times on the same measure, (2) immediately when a measure was called up, or (3) as a means of excluding non-germane amendments to a measure. Leadership success in achieving cloture, however, did not increase notably until after the rules change of 1975 made cloture easier to obtain. Several Senate observers contend that the leadership's greater readiness to seek cloture and the greater ease of obtaining it inspired opponents, in response, to resort earlier and more readily to dilatory tactics, so that filibusters and threats of filibusters became more frequent.
In 1976, the cloture rule was further changed to make amendments eligible for consideration under cloture even if they had not been presented and read before it was invoked. The new provision only required that such amendments be submitted to the desk before the vote. This change may have facilitated the emergence of the ``post-cloture filibuster,'' conducted by means of numerous motions and amendments rather than chiefly by debate.
A series of key parliamentary rulings issued by Vice President Walter Mondale during 1977-78 filibusters on initial consideration of the Senate bill and later on the conference report on national energy policy imposed some constraints on post-cloture filibusters. The rulings provided that, after cloture, any Senator could call up any amendment filed by another Senator in order to have it ruled dilatory by the chair; that the chair on his or her own authority could refuse to entertain a motion or an amendment if the chair viewed it as dilatory; and that a quorum call would not be in order if no business had transpired since the Senate last established its presence.
Further clarifications were made in the cloture rule by amendments adopted in 1979. Among other things, they elaborated the filing deadlines for amendments eligible to be called up under cloture, and gave Senators preference in offering amendments to a measure under cloture if they had previously offered fewer than two. The 1979 change also imposed an overall cap of 100 hours on total consideration of a matter under cloture, in addition to the limitation on each Senator of one hour for debate. A further amendment in 1986, in conjunction with the authorization for television broadcast of Senate floor proceedings, reduced the cap on overall consideration once cloture was invoked to 30 hours.
The majority leadership's shift in countering filibusters from endurance tactics to greater use of cloture may also have fostered other noted recent changes in the filibuster itself. Today, Senators often need not conduct filibusters through actual extended debate, pursuing them instead through procedural devices and the threat of delay. The Senate may even agree to consider other matters while a disputed matter is delayed, which might be viewed as a form of filibuster by accommodation.
Finally, the Senate altered other procedural rules in 1986 as part of its decision to permit television coverage of Senate Chamber activity. It streamlined its floor procedures by permitting a nondebatable motion to waive the reading of the Journal, and by abolishing the practice of considering treaties in a committee of the whole. In addition, it also altered the rules on Senators' access to legislative information, reducing the requirement for committee reports to be available before measures could be considered from 3 to 2 days. Conference reports had to be available on each Senator's desk when called up. Finally, the Senate's leadership has attempted to maintain a time limit of twenty minutes (now reduced to fifteen) for roll call votes.
There is evidence that before the Civil War the Senate routinely agreed by unanimous consent to take votes on pending matters at a time certain, and that these agreements were generally held to be binding on the Senate. It was not, however, until the emergence of the floor leaders as the key agenda-setting agents of the Senate before World War II that time agreements expanded routinely to cover more aspects of Senate floor action on a particular bill in a more explicit fashion.
To gain greater predictability in floor scheduling, time agreements have become increasingly structured as circumstances appeared to require. It is now not uncommon for a time agreement to specify the subject of each permissible floor amendment, the name of the Senator sponsoring such amendment (and controlling debate time in support of such amendment), and the total time permitted for debate on such an amendment. The growing complexity of these agreements increases the amount of Senatorial and staff time which must be devoted to the attendant negotiations. These more complex agreements typically are required for the most contentious legislative matters. Simpler time agreements are often entered into extemporaneously to regulate debate on an amendment or series of amendments to a bill in which debate is otherwise uncontrolled.
A key issue in all time agreements is whether the permitted debate or amendments must be germane. In earlier years, evidence suggests that party leaders were much more insistent on requiring germaneness of debate and amendments under time agreements than they are now. By failing to insist on a germaneness clause in a time agreement, leaders no doubt expedite time agreement negotiations and still have the ability to offer a tabling motion to try to remove a contentious non-germane issue from the floor. An importance issue in Senate scheduling is whether the concerns of all Senators necessarily be addressed and accommodated (as they are in a time agreement), or whether the concerns of only a single Senator or a small group of Senators ought not to inconvenience a substantial majority.
Standing Orders The formal rules of the Senate are supplemented by long standing customs and by established ``standing orders'' of the Senate. These latter are unanimous consent agreements entered into either for the duration of a Congress or until superseded or set aside by a subsequent unanimous consent agreement.
In certain instances, these standing orders alter the operation of Senate rules. For example, the standing rules require that bill introductions and committee reports occur only during specified periods for the transaction of so-called Morning Business. Under a special order routinely agreed to at the beginning of each new Congress, however, the Senate now permits bill introductions and report filings anytime while the Senate is in session. Although the Senate is reluctant to change its rules except for the most pressing of reasons, some have proposed amending the rules to reflect current Senate practices where daily operations differ from rules provisions.
Holds Other informal practices are governed purely by custom. The precise origins of ``holds'' in the Senate is not clearly known. They are understood to have been an established practice as far back as the 1950s, if not much earlier. As commonly understood, a ``hold'' is a request from an individual Senator that floor action be delayed to allow a concerned Senator sufficient time to prepare his arguments, amendments, or other tactics. Holds are premised on the recognition that any Senator could object to a unanimous consent request to proceed to the consideration of a measure on the calendar. Rather that to precipitate avoidable debate on a motion to proceed (data on the disposition of motions to proceed is contained in Table 4 at the end of this chapter), or to escalate controversy by encouraging the leadership to use a non-debatable motion in the morning hour, holds evolved as a reasonable accommodation to the conflicting needs of Senators.
However, the hold process now allows Senators of both parties to attempt to delay floor action for relatively inconsequential reasons. The resultant ``powder-puff'' filibuster allows opponents to delay a bill without imposing any of the pressures or costs associated with a formal, public process of extended debate under the formal rules of the Senate.
Clearance on Both Sides of the Aisle The hold process also now serves additional informal purposes. Measures upon which no hold requests are received (after being available for a reasonable period of time) are presumed to have ``cleared'' the Senate. When the Majority and Minority Leaders can agree that a specific measure has ``cleared both sides of the aisle,'' the measures are then processed routinely by unanimous consent, often without any floor debate or amendment. This informal usage has now entirely supplanted a Senate rule directing the occasional call of the calendar to take up unobjected to bills.