The Illegality of "Cloture"

The current brouhaha in the U.S. Senate over the refusal of democrats, using the “cloture rule,” to allow up-or-down votes on Bush nominees to Federal Appeals Courts makes one wonder if the Senators actually understand the U.S. Constitution and whether their forerunners understood it back in 1917 when the notion of cloture took hold. The provision for the president’s nominating of and the Senate’s “advice and consent” component regarding judges is found in Section 2 of Article II of the Constitution: He [president] shall have Power, by and with the Advice of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law… .

It is noteworthy that the only restriction as to the number needed to approve a matter is that which applies to the making of treaties. Notable by the lack of such provision is that which applies to judges, the obvious inference being that a simple majority is all that’s necessary for the approval of a judge to any court, including the Supreme Court. Depending on the political climate, senators are likely to dredge up this paragraph in Section 5 of Article I of the Constitution: Each House may determine the Rules of its Proceedings, punish its members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member. Democrats at this time will claim that the cloture rule is valid since each house may determine its rules of proceedings. Rules of proceedings, however, have to do with such things as parliamentary procedure or how a vote is to be conducted or how committees are set up, and are not to be confused with laws of government. There is a difference between the business of the Senate (rules of procedures) and the business of government (laws).

The Senate of 1917 confirmed the “rule” (not law) regarding the privilege of “cloture,” the closing down of a filibuster, a word derived from the term pirate. Without such an instrument, notwithstanding the obvious violation of the Constitution (or at least its spirit) with regard to the right of anyone anywhere under normal circumstances to be free to speak, especially in an official capacity such as that of senator, senators opposing a bill could presumably speak until the end of time in order for the bill not to be handled (voted up or down) or the makeup of the Senate to be changed in their favor, whichever should come first, in which case the new minority party could return the favor. In 1917, the new Senate “rule 22” designed to shut down a filibuster required that a two-thirds vote (64 Senators at that time) would be necessary to engage cloture. The Senate of 1975 replaced the two-thirds requirement with a three-fifths requirement, thus making it possible for 60 Senators to stop endless rambling designed to thwart the will of the majority. They did this with a simple-majority vote.

With respect to the hypocrisy connected to the filibuster, it must be said that both the democrats and republicans use it for advantage when in the minority and holding the three-fifths of the body hostage. The record for a single filibuster speech belongs to the late Strom Thurmond, who spoke for 24 hours and 18 minutes in opposition to the Civil Rights Act of 1957 and functioned as both a democrat and republican while in the Senate. Today, the democrats are using the filibuster, so it might be interesting to see how their flip-flops register. This is from the Congressional Record of 20 February 1975 and is a statement by Senator Robert Byrd, perhaps, along with Senator Ted Kennedy, the most adamant purveyors of the principle of filibuster at this time:

“This Congress is not obliged to be bound by the dead hand of the past. . . . . The first Senate, which met & in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . . . . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.”

So much for Senator Byrd, who completed on the morning of 10 June 1964 a filibuster speech that had run on for 14 hours and 13 minutes – an all-nighter of the first water – against the Civil Rights Act of 1964. That filibuster lasted 57 working days, including six Saturdays. Disgusting! How about Senator Ted Kennedy? As also noted in the Congressional Record of 20 February 1975, the senator had this to say:

“But the Constitution enshrines no prohibition on action by the people’s representatives in Congress that may be construed as justifying the filibuster rule. Under our fundamental constitutional scheme, the rights of the minority are protected by a series of specific provisions, none of which has any relevance to the general rules by which the House and Senate perform their legislative functions.” As late as 1995, Kennedy voted in favor of a proposal to eventually allow a majority of senators to end debate. So much for Kennedy’s hypocrisy.

Majority Leader Frist should garner the intestinal fortitude to bring about the resolution of the filibuster problem, knowing full well that when the Senate is again dominated by democrats he will be unhappy. He is elected to do a job and do it well. Both parties have engaged in the hypocritical posturing of the filibuster-cloture business long enough. The time has come for some actual statesmanship to be exercised by both parties, and it is to their detriment that they portray to the public an unwillingness to be both lawful and sensible. The notion that the minority party somehow must be protected, especially in judicial appointments, represents a moot point. The Constitution clearly indicates that the “tyranny of the minority” is unacceptable, and that representative government is designed so that the ever changing majority sets the tenor of form and reform in each era. A solution is as simple as inculcating a “rule of proceeding” that sets reasonable time limits for debate. That can be done under Article I(5) and will not violate Article II(2). Then, a vote is in order.