These rulings were achieved in much the same way as senators enforce or revise their rules because the members of the House could not and did not invoke an already-enforceable cloture rule
(58) When extended debate finally morphed into blind obstruction, a cloture rule
was adopted for the first time in 1917, (59) which may have had the perverse effect of enshrining the notion of supermajority rules in the Senate for the first time.
proposal to reform the cloture rule
by ratcheting down the number of
But what if the current Senate cloture rule
is not binding?
Having abandoned the "previous question" in 1806, there were no motions by which Senators could end debate and call for a vote prior to the first cloture rule
in 1917.(1) As the long-winded orators of the late 19th century began to make their mark on Senate proceedings and began filling the pages of the Congressional Record, criticisms of the filibuster became more frequent.
[T]he anti-entrenchment objection to the cloture rule
is really a wholesale objection to constitutionalism as such.
The latter rule says that sixty votes are needed to effect cloture--the end of debate on an issue subject to filibuster (76)--while the former rule, employing self-reference, says that "[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." (77) Their joint effect is to entrench the supermajority cloture rule
against change by any simple majority in subsequent Senates, because a motion to change Rule XXII would itself be considered (by virtue of Rule V) in compliance with Rule XXII's supermajority cloture requirement; similarly, Rule V itself could not be first amended by a simple majority.
For further information, see CRS Report RL32684, Changing Senate Rules: The "Constitutional" or "Nuclear" Option, by Betsy Palmer; CRS Report RL32843, 'Entrenchment' of Senate Procedure and the 'Nuclear Option' for Change: Possible Proceedings and Their Implications, by Richard Beth; CRS Report RL32149, Proposals to Change the Senate Cloture Rule
, by Christopher Davis and Betsy Palmer; and CRS Report RL32874, Standing Order and Rulemaking Statute: Possible Alternatives to the "Nuclear Option"?, by Christopher Davis.
In fact, the first filibuster was attempted in the First Congress.(64) Indeed, until 1917, the Senate did not have a cloture rule
at all; the ability of members to hold up majoritarian legislation was limited only by their endurance.(65) Even the House of Representatives did not use effective mechanisms to limit debate until Speaker Reed's reforms of the late-nineteenth century.(66) While the Open Letter declines to endorse the rules permitting filibusters,(67) the continuous use of filibusters since the early Republic provides compelling support for their constitutionality.(68)
By making it hard to stop filibusters, the cloture rule
encourages more fully informed discussion and thus falls within the rationale of the Constitution's grant of rulemaking power to both houses.
Another aspect of congressional procedure that has been the subject of numerous reforms is the Senate cloture rule
, Senate Rule XXII.(284) The history of the passage of the 1964 Civil Rights Act leaves no doubt that cloture was an essential tool in moving civil rights legislation forward to a vote.(285) In 1963, six Senators, including Senator Humphrey, wrote to President Kennedy that:
For Trump, the final tally and legacy will be heavily influenced by a host of wildcards, which include, as examples, possible House impeachment proceedings, RBG's health, likely amendment of Senate cloture rules
, and the 2020 Presidential campaign.