Frist Proposes Rule Change on Filibusters     5/14/2003
By Thomas L. Jipping, J.D.

The minority is obstructing senators' constitutional duty to vote on judicial nominees.

In May 9, 2003, Senate Majority Leader Bill Frist (R-Tennessee) introduced S.Res. 138 to amend Senate Rule XXII relating to invoking cloture, or ending debate, on judicial nominations.

The traditions of the U.S. Senate favor deliberation, and its rules allow unlimited debate on legislation or nominations. Only two methods exist to end debate so the Senate can vote. The informal method is a “unanimous consent” agreement limiting debate to a specific number of hours and scheduling a vote. The formal method is a motion to “invoke cloture” under Rule XXII. Under the current rule, invoking cloture requires 60 votes.

A filibuster occurs when these methods for ending debate fail, either by a senator’s objection to a request for unanimous consent or by more than 40 senators voting against a motion to invoke cloture. It is a powerful tool for a minority of senators, and most often is used for such legitimate purposes as ensuring sufficient time for debate, encouraging negotiation, or even as leverage for achieving other legislative goals. Each of these purposes is temporary.

In recent years, however, the minority has used the filibuster as a permanent weapon to defeat legislation or nominations that the majority would otherwise approve. That is, the filibuster has become a method not for slowing the exercise of majority rule, but for abolishing it altogether. The filibusters against the appeals court nominations of Miguel Estrada and Priscilla Owen are good examples. A majority of the Senate supports them and would vote to confirm them, so a minority is using the filibuster to win what it would otherwise lose.

Sen. Frist’s proposal is intended to preserve extended debate, even through filibusters for legitimate purposes, but to prevent permanent filibusters aimed at abolishing majority rule. Under S.Res. 138, the majority required to invoke cloture would decline on successive votes from 60, 57, 54, to 51. On a fifth vote, a majority of senators present and voting – the same majority that can pass legislation or ultimately confirm a nominee – can end debate.

S.Res. 138 is not the first attempt to change the cloture rule. Nearly eight years ago, several senators introduced a very similar proposal. It would have used the same declining scale for successive cloture vote majorities, though it would have stopped at 51 votes. In addition, that proposal would have applied to both legislation and nominations. Another important difference is that Democrats introduced and supported this proposal.

Sens. Tom Harkin (D-Iowa) and Joseph Lieberman (D-Connecticut) introduced their proposal on January 4, 1995. Sen. Harkin emphasized that, while preserving the Senate tradition of extended debate, they wanted to eliminate filibusters designed to kill legislation or nominations that have “a majority of support.” He urged the Senate to “embrace the vision of [the Senate] that our Founding Fathers had” as “a place to … deliberate and discuss, but not as a place where a handful … can totally stop legislation or nominations.”

The Senate voted 76-19 to table the Harkin/Lieberman proposal at that time. The 19 senators voting against the motion to table were all Democrats, and 10 serve in the Senate today. This might lead some to believe that Sen. Frist already has the support of these senators.

Regrettably, these senators’ actions have not matched their words. Though most people would probably expect senators who want to limit filibusters to generally oppose cloture, these senators’ voting records reveal otherwise. On motions to invoke cloture on judicial nominations, these 10 senators who had supported the Harkin/Lieberman proposal have voted for cloture, on average, less than 40 percent of the time. Sen. Lieberman actually has the best record in the group, voting for judicial nominee cloture 58.33 percent of the time. Sen. Harkin, however, has voted for judicial nominee cloture less than 30 percent of the time.

It is true that voting against cloture does not necessarily mean support of an improper permanent filibuster. Sadly, however, each of these 10 senators voted against cloture six times on the Estrada nomination and twice on the Owen nomination. These are clearly improper permanent filibusters, and supporting them is inconsistent with these senators’ past support for filibuster reform.

Sen. Frist’s proposal is focused narrowly on preventing the kind of improper filibusters designed permanently to abolish majority rule. Since Rule XXII, the very one S.Res. 138 would amend, requires not just 60, but 67, votes to amend

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