Filibuster / Cloture

Resolutions to change the rule for cloture (Senate Rule XXII), the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster, were introduced at the beginning of every first session of Congress but one since 1953.[1] The resolutions varied from providing cloture by a three-fifths vote of those present and voting, to providing cloture by a simple majority vote, to providing cloture by a constitutional majority vote. Accompanying each resolution was the debate as to whether the Senate was a continuing body bound by the rules of earlier Senates, or whether each new Congress brings with it a new Senate, thus enabling it to amend its rules at the beginning of a new session.[2] As Senator Mondale pointed out, "the effort to end the filibuster takes on an 'Alice in Wonderland' quality, as the majority's desire to change the rule is thwarted by the rule itself. As a result, the argument over a change in the rules soon becomes an argument over the nature of the Senate...."[3] In order to even consider changing Senate Rule XXII, the cloture rule, the Senate first had to overcome the inevitable filibuster that accompanied the proposed rule change with the very vote for cloture it was trying to change. After a long and sometimes rancorous debate, Senate Rule XXII was changed from requiring two-thirds of those present and voting to invoke cloture to a constitutional three-fifths to invoke cloture, or 60 votes. Senators Mondale and Pearson (R-KS) were the cosponsors of Senate Resolution 4, the catalyst for the rule change.

Early in his Senate career, Walter Mondale supported resolutions amending Rule XXII by providing for cloture by a majority vote. He eventually changed that position: "When I first came to the Senate, I cosponsored a measure to close off debate with 51 percent of the vote of the Senate. The longer I am here, the more I feel that this would be an unwise policy, and I will no longer support a rule which allows a simple majority to close off debate. As I see it, it is an issue between the ability to paralyze, on the one hand, and the ability to require full ventilation of an issue, on the other. In my opinion, there are crucial issues which demand full consideration by the Senate—the kind of full consideration that no other institution in this country is capable of giving. Such consideration requires extended debate."[4]

In 1975, Senator Mondale spearheaded the fight to change Senate Rule XXII, introducing his and Senator Pearson's Senate Resolution 4 on the first day of the new Congress. Senate Resolution 4 proposed to amend Rule XXII by reducing the number of Senators present and voting for cloture from two-thirds to three-fifths. Senator Mondale argued that "Rule XXII, in its present form, has protected the right of debate at the expense of the right to decide. Rule XXII has significantly impaired the ability of this body to function, and its inhibitions on the legislative process promise to increase, rather than diminish, during the 94th Congress." He urged his colleagues to vote to change the rule, asserting that "we may take no more important action during the 94th Congress than the steps we are now taking to reform Rule XXII of the Standing Rules.[5]

The debate on Senate Resolution 4 was fervent, long, and at times absurd. Senator Byrd (D-WV) delayed action on the resolution for three weeks; Senator Allen (D-AL) argued that changing the rule would limit the minority's right to debate and called it a "gag rule." He refused to yield several times to Senator Mondale and used many dilatory tactics to filibuster the resolution: suggesting the absence of a quorum (thus forcing a time-consuming roll call), having the journals from previous days read, reading articles out loud and moving to have the Senate recess for hours at a time. At one point, Senator Allen introduced an amendment to amend the journal for March 3 by inserting "A Prayer of Saint Francis of Assisi" at the start of the day's proceedings.[6]

Despite dilatory tactics, animated debate, and criticism, Senator Mondale maintained his sense of humor. Before one of several votes for cloture, he stated:

Tomorrow the Senate will have an opportunity to vote on cloture, on the question of voting on the merits of the revised resolution. It should be recognized by all that, under the rules, once cloture is invoked, if it is, every Senator still has remaining rights to have pending amendments considered under the rules, and the opportunity to argue his point of view.

I understand that the Senator from Alabama already has thought of 20 changes that he thinks would strengthen Rule XXII. As a matter of fact, the Senator from Alabama has been so creative, his mind so fertile, his stamina so unremitting, that the Legislature of Alabama, we are told, passed a resolution so glowing in praise that the modesty of the Senator from Alabama prevented him from requesting that the resolution be printed in the record. I hope that when these proceedings are over, the Senator from Alabama will permit me to introduce that resolution, so that our colleagues will know what the Legislature of Alabama thinks of him and the high regard they have for him.

I also hope that the International Parliamentary Union might review this record and, perhaps, shape a new medal, a new award of some kind, which would confer upon him some international award for the fertility of his mind, which I think is without any effective comparison in this body or in any other parliamentary body in the world. . . .

I doubt that any other member of any parliamentary body in the world today is creative enough to move that their journals recite, verbatim, the prayer of St. Francis of Assisi or the Lord's Prayer. . . .

Coming from the family of a minister, where one of the first things we learned to do was recite those prayers, I was moved by the leadership of the Senator from Alabama. However, I was somewhat hurt that the 23d Psalm, which certainly deserves great recognition, was not included in his amendments. But, I am sure that was an oversight and that, if the occasion arises, the Senator from Alabama will strengthen his position by adding the 23d Psalm, perhaps to Rule XXII, as a reform measure." [7]

In the final days of the debate, Senator Robert Byrd (D-WV) introduced an amendment to Senate Resolution 4. The amendment, Senate Resolution 93, changed Senator Mondale and Senator Pearson's initial resolution by requiring three-fifths of the entire Senate to vote for cloture, rather than three-fifths of those present and voting. After seven weeks of delay and debate, Senate Resolution 4, as amended, was passed on March 7, 1975. While it is considered "the Byrd rule" today, Senators Mondale and Pearson are credited with the change. Senator Nelson (D-WI) states, "Much of the credit for this important change in Senate procedures goes to the chief sponsors of Senate Resolution 4—the distinguished Senator from Minnesota and the distinguished Senator from Kansas. Despite formidable opposition, these Senators steered Senate Resolution 4 through the parliamentary thicket and to final passage. They are to be congratulated and to be thanked." [8]

To this day, three-fifths of the entire Senate, or 60 votes, are required to end a filibuster.