Amending Senate Rules at the Start of a New Congress, 1953-1975: An Analysis with an Afterword to 2015
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Amending Senate Rules at the Start of a New
Congress, 1953-1975: An Analysis with an
Afterword to 2015
(name redacted)
Senior Specialist in American National Government
February 23, 2016
Congressional Research Service
7-....
www.crs.gov
R44395
Amending Senate Rules at the Start of a New Congress
Summary
The filibuster (extended debate) is the Senate’s most well-known procedure. Hollywood even
highlighted its use in a famous 1939 movie entitled Mr. Smith Goes to Washington, starring actor
Jimmy Stewart in the title role of Senator Jefferson Smith. Lengthy debate has many virtues
(informing the public, for example) but the blocking potential of interminable debate has often
made the filibuster a target for change by reform-minded Senators. Rule XXII requires 60 votes
of Senators duly chosen and sworn to end debate on measures or motions—“except on a measure
or motion to amend the Senate rules, in which case the necessary affirmative vote shall be twothirds of the Senators present and voting.”
Real or threatened filibusters, along with cloture motions, have increased in recent Congresses.
One consequence has been unsuccessful efforts by change-oriented Senators to amend Rule XXII
without having to overcome the two-thirds supermajority hurdle. The contention of the reformers
is that at the start of a new Congress, the Senate can amend its rules by majority vote—as the
House does on its first day. They cite the U.S. Constitution (Article I, Section 5) as authority for
their claim: “Each House may determine the Rules of its Proceedings,” which implicitly means
by majority vote, state the reformers.
Opponents reject the so-called “constitutional” option. They point out that the Senate has adopted
rules and the Constitution says nothing about the vote required to adopt those rules. Moreover,
they contend that the Senate is a “continuing body”—a quorum to conduct business is always
present given the staggered terms of Senators—with continuing rules. The bottom line: a Senate
majority can always amend the chamber’s rules at any time during the two-year life of a Congress
so long as the existing rules are observed, such as Rule XXII. Proponents of change refute that
argument. They agree that a majority of the Members can change Senate rules at any time. Their
concern is Rule XXII’s two-thirds requirement for invoking cloture on proposals to amend Senate
rules, which can prevent a majority from altering Senate rules.
From 1953 to 1975, initiatives to reform Rule XXII at the start of a new Congress were biennial
rituals. They were instigated by Senators in each party frustrated by the chamber’s inability to
enact social and civil rights legislation because of opposition from other Members. The bulk of
this report examines each Congress where reform actions occurred on “opening day,” which
could extend for days, weeks, or months. Most of the reform attempts failed, but two efforts were
successful: in 1959 and 1975. An analysis of the successes and failures of this nearly quartercentury era of opening day reform efforts could inform contemporary efforts to revise Senate
rules by examining the controversies, conditions, and circumstances that produced the various
outcomes. The report discusses, for example, the roles of various Senate Presidents (the Vice
President) and party leaders, as well as the procedural strategies used by opponents and
proponents of amending Rule XXII by majority vote at the start of a new Congress.
The report also includes an “Afterword” that examines several subsequent and successful efforts
to change Rule XXII in 1977, 1979, 1986, and 2013. The 2013 case is noteworthy because it
created a new Senate precedent that allows majority cloture on most executive and judicial branch
nominees. This precedential approach is sometimes called the “nuclear” option because of the
likelihood of strong opposition and contentious parliamentary fallout from Senators opposed to its
use on consequential measures or matters. In brief, the nuclear option indirectly “amends” Senate
rules by majority vote through the creation of a new precedent that alters the application or
interpretation of a chamber’s rule, such as Rule XXII, without changing its formal text.
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Contents
Introduction ..................................................................................................................................... 1
Legislative Context.......................................................................................................................... 4
The Constitutional and Nuclear Options ......................................................................................... 6
Precedents and Senate Rules ..................................................................................................... 7
The Senate’s Rulemaking Authority ......................................................................................... 9
Attempts to Amend the Standing Rules of the Senate on Opening Day: 1953, 1957, and
1959 ............................................................................................................................................. 11
83rd Congress (1953) ................................................................................................................ 11
85th Congress (1957) ............................................................................................................... 13
86th Congress (1959) ............................................................................................................... 14
Cloture Reform Attempts: 1961 To 1975 ...................................................................................... 18
87th Congress (1961) ............................................................................................................... 19
88th Congress (1963) ............................................................................................................... 27
89th Congress (1965) ............................................................................................................... 35
90th Congress (1967) ............................................................................................................... 38
91st Congress (1969)................................................................................................................ 43
92nd Congress (1971) ............................................................................................................... 50
93rd Congress (1973) ............................................................................................................... 55
94th Congress (1975) ............................................................................................................... 56
Changing Senate Rules: Several Considerations ........................................................................... 73
The Presiding Officer .............................................................................................................. 74
The Majority Leader ............................................................................................................... 76
A Determined Majority ........................................................................................................... 77
Procedural Strategy ................................................................................................................. 77
“Opening Day” ........................................................................................................................ 79
Continuing Body Doctrine ...................................................................................................... 79
The Scope of Changes to the Senate Rulebook....................................................................... 79
Afterword ...................................................................................................................................... 80
The 1977 Post-Cloture Filibuster ............................................................................................ 81
1979 Revision.......................................................................................................................... 83
1986 Revision.......................................................................................................................... 84
A January 2013 Development ................................................................................................. 85
Historic Change in November 2013: Filibusters Curbed on Most Presidential
Nominees ............................................................................................................................. 87
The 114th Congress (2015-2016) ............................................................................................. 93
Concluding Observations .............................................................................................................. 94
Contacts
Author Contact Information .......................................................................................................... 96
Acknowledgments ......................................................................................................................... 96
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Introduction
At the beginning of the 112th, 113th , and 114th Congresses—in 2011, 2013, and 2015
respectively—a number of reform-minded Senators unsuccessfully urged the Senate to adopt its
rules on opening day by majority vote (as the House does on its first day) without having to
overcome a supermajority hurdle required under existing procedures. For example, on January 6,
2015, a reform-minded Senator stated, “It has been the tradition at the beginning of many
Congresses that a majority of the Senate has asserted its right to adopt or amend the rules. Just as
Senators of both parties have done in the past, we do not acquiesce to any provision of Senate
rules—adopted by a previous Congress—that would deny the majority that right.”1 The Senator’s
comments highlight a two-fold conundrum that suffuses this report: (1) a majority of the Senate
can amend the chamber’s rules; (2) however, before that may occur, reform advocates might be
required under existing Senate rules—which carry over from one Congress to the next (part of the
“continuing body” thesis)—to first muster a supermajority to bring interminable debate to a close
on proposals to amend Senate rules. Only then would Senators have the opportunity to vote
directly on proposals to alter the chamber’s rules. Contemporary attempts to change Senate rules
mirror similar opening day efforts that became biennial rituals nearly every new Congress from
1953 to 1975—the principal focus of this report. A major impetus for the repeated attempts at
filibuster reform during this period was the frustration of liberal Senators in winning enactment of
civil rights legislation. Prolonged debate and other procedural tactics by southern and other
Members often blocked passage of those measures.
The revival of the idea that the Senate has the constitutional right on the opening day of a new
Congress to change its procedures by majority vote regardless of entrenched rules or traditions
merits detailed analysis. Why? Because this topic addresses perhaps the most distinctive
procedural characteristic of the Senate: the filibuster (extended debate). An examination of the
1953 to 1975 initiatives to change Senate rules on the first day of a new Congress—unhindered
by supermajority voting requirements carried over from the previous Congress—might provide
useful context and analysis for today’s advocates and opponents of this approach. Then and now,
the procedural/political struggles associated with this idea focus less on rewriting many Senate
rules and more on making it somewhat easier to constrain obstructive filibusters. Worth brief
mention is that “filibustering,” in its broadest sense, refers to more than prolonged debate. It
encompasses a range of acts to delay and frustrate the Senate, such as objecting to a unanimous
consent request to end quorum calls, raising numerous points of order, or forcing repetitive roll
call votes.
Even so, the right of every Senator to engage in extended debate is probably the chamber’s most
famous feature. It is so well-known that Hollywood even made a classic movie in 1939 (Mr.
Smith Goes to Washington) that highlighted the filibuster’s educative and political value. A solo,
around-the-clock filibuster was launched by fictitious Senator Jefferson Smith (played by actor
James Stewart). Senator Smith/Stewart collapsed from exhaustion at the movie’s end, but his
filibuster mobilized public opinion and Member sentiment against a tawdry land deal. In short,
the Senator’s talkathon exposed wrongdoing, aroused public support, and, importantly, persuaded
his colleagues of the rightness of his views.
Senators value extended debate for many other reasons, such as preventing bills they disagree
with from becoming law, dramatizing issues for the public, protecting minority rights against
1
Congressional Record, vol. 161, January 6, 2015, p. S23.
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majority steamrolling, ensuring thorough analysis of legislation, and checking overzealous
Presidents. On the other hand, opponents contend that prolonged debate—its actual or threatened
use—thwarts majority rule, promotes gridlock, delays or kills legislation, exacts unwarranted
concessions on measures or matters backed by Senate majorities, and, at times, blocks
consideration of proposals that enjoy majority support in the country.
In the view of Senator Robert C. Byrd, D-WV, one of the most knowledgeable parliamentary
experts in Senate history: “The liberties of a free people will always be safe where a forum exists
in which open and unlimited debate is allowed.” He added: “The good outweighs the bad, and not
all filibusters have been bad, even though they may have been exasperating, contentious, and
perceived as iniquitous.”2 Senator Byrd’s views underscore that extended debate is the core
procedural feature that distinguishes the Senate from the House of Representatives, where almost
every second of debate time is limited by some rule, precedent, or practice.
Critics, by contrast, emphasize that filibusters contravene a fundamental principle of democratic
governance: majority rule. In Federalist No. 22, Alexander Hamilton wrote: “To give a minority a
negative upon the majority (which is always the case where more than a majority is requisite to a
decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.” Or as
Thomas Jefferson said in the parliamentary manual he prepared for the Senate when he served as
President of the Senate (1797-1801): “The voice of the majority decides. For the lex majoris
partis [law of the greatest part, or majority rule] is the law of all councils, elections, &c. where
not otherwise expressly provided.”3 In addition, the Framers did expressly provide in the
Constitution a limited number of instances where supermajorities are required, such as a twothirds vote of each chamber to override a presidential veto or two-thirds of the Senators voting to
win the Senate’s consent to a treaty.
Nothing in either the Constitution or Senate rules defines a filibuster, let alone what constitutes an
appropriate length of time for debating a measure or matter.4 From the First Congress, Senators
recognized that debates for dilatory purposes would occasionally be used, but “they were not used
frequently enough to give the Senate any trace of the notoriety which the filibuster later attached
to the Upper Chamber.”5 During much of the 19th century, unrestricted debate aroused rather little
senatorial concern, in large measure because the Senate’s smaller size and workload (compared to
today) made lengthy debates easier to accommodate. Once the motion for the previous question
disappeared from the Senate’s Standing Rules in 1806,6 it was not until 1917 that the Senate
2
Robert C. Byrd, The Senate, 1789-1989, vol. II (Washington, D.C.: U.S. Govt. Print. Off., 1991), pp. 162-163.
Thomas J. Wickham, Constitution, Jefferson’s Manual, and Rules of the House of Representatives, H. Doc. 113-181
(Washington, D.C.: U.S. Govt. Print. Off., 2015), p. 268.
4
Senate Rule XIX is titled “Debate” and addresses the right to speak in the chamber. Paragraph 1(a) identifies a key
principle that undergirds the ability of Members to engage in prolonged debate: “No Senator shall interrupt another
Senator in debate without his consent.” In sum, once a Senator is recognized by the presiding officer, the Senator may
speak for as long as he or she wants, which in the case of Senator Strom Thurmond of South Carolina was a recordsetting 24 hours and 18 minutes. He set the record for continuously holding the floor in debate on August 28-29, 1957,
on a civil rights measure.
5
Roy Swanstrom, The United States Senate, 1787-1801, S. Doc. 99-19 (Washington, D.C.: U.S. Govt. Print. Off.,
1985), p. 210.
6
The previous question is a debate-ending motion. Included as part of the Senate’s rules in 1789, it was deleted in 1806
when the Senate recodified its standing rules. Analysts have differed over its original purpose: Was it a rule to end
debate or to postpone consideration of matters? The Senate took the advice of Vice President Aaron Burr and
eliminated the rule because it had been used only once in four years, which was “proof that it could not be necessary,
and that all its purposes were certainly much better answered by the question of indefinite postponement.” See Martin
B. Gold, Senate Procedure and Practice (Lanham, MD: Rowman & Littlefield Publishers, 2004), p. 49. A study by
political scientist Joseph Cooper provides strong evidence that the Senate’s previous question motion was not used as a
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adopted a rule (Rule XXII) to allow a supermajority to bring debate to close. Over time, however,
lengthy debate, and its threat, evolved to become a potent obstructive practice for delaying or
preventing chamber consideration of measures or matters.
There is significant frustration in the present-day Senate with extended debate because it is
difficult to end talkathons. A key reason for the difficulty is that on most measures and matters, a
vote of three-fifths of the Senators duly chosen and sworn (60 if all 100 seats are filled) is
required to invoke cloture under Rule XXII, which imposes limits on overall consideration. Little
surprise that in a sharply divided and polarized Senate, the number 41 is stronger than 59. An
even higher threshold (two-thirds of those voting, a quorum being present)7 is required to end
debate on measures to amend the Standing Rules of the Senate.
The supermajority vote required to invoke cloture on both substantive issues and amendments to
Senate rules is among the major factors that explain why in recent years various Senators have
urged procedural revisions. Among current proposals are changes to limit opportunities for
prolonged debate on certain motions, to reduce the length of time required to end debate under
Rule XXII, to lower the 60-vote threshold to invoke cloture, or to require Senators to remain in
the chamber and engage in a so-called “talking filibuster”—as portrayed in the aforementioned
Mr. Smith Goes to Washington—rather than use other methods (repeated quorum calls, for
example) to stall Senate action.8
With heightened interest in revising Senate procedures that permit lengthy debate, this report has
several purposes.9 First, it provides a general overview of the Senate’s contemporary legislative
context that has triggered renewed interest in amending the Standing Rules of the Senate at the
beginning of—even during—a new Congress. Second, the report focuses mainly on issues
(...continued)
debate-ending motion. See Joseph Cooper, The Previous Question: Its Standing as a Precedent for Cloture in the
United States Senate (Washington, D.C.: U.S. Govt. Print. Off., 1962). Also see Sarah A. Binder and Steven S. Smith,
Politics or Principle? Filibustering in the United States Senate (Washington, D.C.: Brookings Institution Press, 1997).
Binder and Smith state, in part: “It seems the [previous question] motion was not used to limit debate but had become a
tactical means of postponing decisions.... The principles of free speech were hardly at stake in the 1806 decision to
eliminate the previous question rule.” pp. 38-39. In short, the Senate’s deletion of the previous question motion from its
rules did not give rise to filibusters because the 1806 motion was neither used to end debate nor bring the Senate to a
vote on the pending matter.
7
The language commonly used in referring to Senate votes, specifically the words “present and voting” as in “twothirds of those present and voting,” means “voting, a quorum being present.” Why? Because “present and voting” is
both imprecise and misleading. Consider this example. A vote of 66 yeas, 33 nays, and 1 response of “present” (not
technically a vote) is by precedent sufficient to override a veto or adopt a proposed constitutional amendment.
However, if you phrase the vote requirement as “two-thirds of those present and voting,” 66 yeas, 33 nays, and 1
response of present, the vote would fail. Although this report uses “present and voting” in various places, the more
precise language is “voting, a quorum being present.” The importance of “a quorum being present” is that at least 51
Senators must vote to comply with the constitutional quorum requirement: “a Majority of each [House] shall constitute
a Quorum to do Business” (Article I, section 5).
8
See CRS Report R41342, Proposals to Change the Operation of Cloture in the Senate, by (name redacted) and
(name redacted) . Worth mention is that some House Members have a negative view of the filibuster. As former
Representative David Obey, D-WI, once said: “The filibuster and the threat of the Senate filibuster impacts virtually
everything that happens in both bodies. When senators tell me to keep my damn nose out because it’s Senate rules, my
response is, ‘Hell it is.’ It has a huge impact on our ability to produce, and we get tarred by the Senate’s impotence.”
See Susan Davis, “A Different Place,” National Journal, October 16, 2010, p. 10.
9
See, for example, Carl Hulse, “G.O.P. Senator Seeks To Forge Path for Change,” New York Times, November 10,
2015, p. A15; Seung Min Kim, “Republicans Weight Battle Over Filibuster Rules,” Politico, November 5, 2015, p. 1;
and Emma Dumain and Niels Lesniewski, “McConnell Faces More Calls for ‘Nuclear Option’ in Senate,” Roll Call,
September 18, 2015, online edition.
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associated with what some call the “constitutional option,” as distinguished from the “nuclear
option.” Proponents of the constitutional option cite Article I, Section 5, of the Constitution—
“Each House may determine the Rules of its Proceedings”—as granting them the authority to
amend the rules of the Senate on opening day by majority vote and without filibusters. Senate
rules require a supermajority vote to end debate on proposals to amend chamber procedures. The
nuclear option refers to the creation by majority vote of new precedents to curb filibusters of
specific measures or matters.
Third, the report reviews three Congresses (1953, 1957, and 1959) where various Senators
professed that a complete rewrite of Senate rules was in order at the start of a new Congress.
Fourth, an analysis of the 1961 through 1975 cloture revision proposals is presented. These
initiatives focused principally on amending Rule XXII rather than adopting a new Senate
rulebook. As with the reform attempts of the 1950s, this analysis summarizes several of the key
parliamentary and political considerations or challenges likely to confront contemporary
advocates who would like to change Senate rules at the opening of a new Congress. Fifth, the
report examines several issues that emerged during these past attempts to change Senate rules that
might affect contemporary efforts to revise Senate rules. The report concludes with an afterword
that highlights significant cloture developments post-1975, especially the November 21, 2013,
precedent that established majority cloture on most presidential nominations (see the discussion
in Part VI).
Legislative Context
The legislative work of the contemporary Senate is regularly influenced by at least two key
procedural and political factors. First, the Senate remains at its core a “minority rule” institution.
The chamber’s rules, precedents, and practices accord extraordinary procedural prerogatives to
every Senator. No other democratic legislative assembly worldwide, so far as is known, grants its
Members such wide-ranging freedom as are accorded to U.S. Senators to debate and to offer
amendments, including amendments unrelated to the pending question. Restrictions can be
imposed on each of these freedoms, but both are mostly available to all Senators to employ as
they personally determine. One consequence is that any Senator is well-positioned to stall or
frustrate chamber action on measures or matters, sometimes temporarily, sometimes permanently.
Procedural actions by Senators who oppose a measure are particularly potent when time is at a
premium near the close of a session. As a frustrated Senate majority leader lamented: “Only in the
United States Senate and only in the last few days of a session can 85 Senators vote one way: Yes,
for this bill; 12 Senators vote another way: No against the bill—and the no’s prevail.”10
Second, the Senate is currently highly polarized. Collaboration and compromise across the party
divide can be much harder to attain than in the post-Depression and World War II eras. Many
factors account for this development. For example, Members of the two Senate parties hold
sharply divergent views on many of the major issues of the day (the proper role of government,
for example). Another factor that inhibits biparty cooperation is intense electoral competitiveness
of the two parties as each struggle to win governing power. Bipartisan coalitions, as a result, are
very difficult to forge on consequential measures and matters. Recent Senates also have witnessed
minority party Senators, whether Democratic or Republican, using an array of parliamentary tools
to make governance by the majority party extraordinarily difficult. In response, Senate majority
10
Congressional Record, vol. 138, October 5, 1992, p. 16577. The statement is by Senate Majority Leader George
Mitchell, D-ME.
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party leaders have employed parliamentary countermoves to try to advance their policy and
political priorities.11
Aggressive use of chamber rules and practices—such as routine threats to filibuster legislation or
nominations—has triggered calls for procedural reform. The filibuster is perhaps the prime target
for change because its goal is often to delay or prevent votes on measures or matters that might
otherwise pass the Senate with majority support. As former Senate Republican Whip Thomas
Kuchel of California explained: “What is a filibuster? My definition would be that it is irrelevant
speechmaking in the Senate, designed solely and simply to consume time, and thus to prevent a
vote from being taken on pending legislation.”12 Of course, extended debate serves a variety of
purposes, as previously noted, such as to inform and enlighten colleagues and the attentive
citizenry; inflame public opinion; focus attention on emerging issues; foster reasoned deliberation
on legislation; influence lawmakers’ votes; or highlight the strengths and weaknesses of
legislative proposals and presidential nominations. A filibuster marathon by one or more Senators
is not easy to stop, however.13
The Senate has only one formal rule (Rule XXII) to terminate prolonged debate on measures or
matters. It is a time-consuming, multi-step procedure that impacts at least three session days. This
salient fact compounds the difficulty of managing a deadline-driven and workload-packed
institution; further, as noted earlier, Rule XXII requires a three-fifths vote of the Senators duly
chosen and sworn to bring debate to a close. Even then, Rule XXII commonly allows for up to 30
more hours of post-cloture consideration on most matters before a vote could occur on the
clotured measure or matter. The procedural reality is that the mere threat of extended debate—
perhaps foreshadowed by objections to unanimous consent requests—is often enough to block
action on measures or matters, not because proponents lack majority support but because the 60vote threshold is beyond reach barring, perhaps, various concessions to opposition lawmakers.
Even if a party has 60 or more Members, chamber leaders may not want to consume valuable
time to go through the cloture process, thus empowering smaller minorities.
Significantly, Rule XXII stipulates that a two-thirds vote of Senators present and voting
(interpreted to mean two-thirds of the Senators voting, a quorum being present) is required to
invoke cloture on proposals to amend the Standing Rules of the Senate. The proposals themselves
only need the support of a majority—even a simple majority, 26 of 51—of Senators to pass the
Senate. The conundrum for reform-minded Senators: if they mobilize at least a majority of
Members who favor altering Rule XXII, they cannot accomplish their objective under the terms
of the rule they want to change. In short, the reformers face a “Catch-22” parliamentary dilemma.
As Senator Jacob Javits, R-NY, pointedly noted: “True, the Senate by a majority [even a simple
majority] at any time can work its will on any piece of legislation, including a change in the rules,
but the question is: What does it take to get to the point where the majority can manifest its
will?”14 In the case of rules changes, the answer is that it could first require the support of a two11
Two relevant articles on contemporary changes in the Senate are Steven S. Smith, “The Senate Syndrome,” Issues in
Governance Studies, No. 35, June 2010, The Brookings Institution, Washington, D.C.; and George Packer, “The Empty
Chamber,” The New Yorker, August 9, 2010, pp. 38-51.
12
Congressional Record, vol. 107, January 4, 1961, p. 82.
13
Senator Strom Thurmond of South Carolina holds the filibuster record, speaking on the Civil Rights Act of 1957 for
24 hours and 18 minutes.
14
Congressional Record, vol. 105, January 8, 1959, p. 124. Another reform-minded Senator, Democrat Paul Douglas
of Illinois, expressed a view similar to that of Senator Javits: “[T]he only safe method of establishing clearly the right
of the Senate to adopt rules is to do so at the beginning of the session, when the Senate would not be crippled by the
straitjacket for which there was no key; namely, rule XXII.” See p. 127. On the other hand, Majority Leader Lyndon
Johnson, D-TX, made it abundantly clear, “At every session of the Congress the rules are amended. They are amended
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thirds supermajority of Members voting to bring to an end, as Rule XXII states, a filibuster
against “a measure or motion to amend Senate rules.” Only then could a Senate majority vote on
the revision itself.
The Constitutional and Nuclear Options
The “constitutional” and “nuclear” terms are often used interchangeably because at their heart
each seeks to change Senate Rule XXII (or any Senate rule) by majority vote, circumventing the
two-thirds cloture requirement to bring debate to an end on proposals to alter Senate rules. The
term “nuclear” can apply to both options in this specific sense: the success of either the
constitutional or nuclear option might trigger a parliamentary meltdown, an explosion of dilatory
and obstructive tactics by Senators who vehemently oppose limitations on their ability to
filibuster measures or matters.15 Both options might also use novel procedures to achieve their
objectives. For ease of comparison, this report considers the two options separately, which
emulates a study by two acknowledged Senate procedural experts.16
The “constitutional” option refers to efforts at the start of a new Congress to amend Senate rules
by majority vote, without regard to Rule XXII’s two-thirds requirement for ending debate.
Proponents of this approach cite the constitutional provision that “Each House may determine the
rules of its proceedings.” Opponents exclaim that “the Constitution says nothing of the sort. It
merely says ... that both Houses can make their own rules.”17 Opponents also emphasize that the
Senate has rules that require a supermajority vote to end debate on proposals to amend chamber
procedures.
The nuclear option refers to the creation of new precedents that prevent filibusters of specific
measures or matters. As Senate precedents state: “Any ruling by the Chair in response to a point
of order made by a Senator is subject to an appeal. [If there is an appeal, a majority vote of the
Senate upholds the decision of the Chair.] If no appeal is taken, the ruling of the Chair stands as
the judgment of the Senate and becomes a precedent for the guidance of the Senate in the
future.”18 In the view of two Senate procedural experts, the nuclear option is “essentially a variant
(...continued)
with respect to the constitution of our committees and the ratio of majority and minority members. That is usually done
by unanimous consent. But I point out again for the Record that the majority of the Members of the Senate can rewrite
the rules, each one of them, all 40 of them. Substitutes may be submitted for each of the 40 rules. The Senate can
amend them in any respect it may desire, at any time a majority of the Senate shall so decide…. [T]he Senate of the
United States, by majority vote, can amend any of its rules or rewrite all its rules.” See pp. 105-106. Senator Javits
responded: “All the argument to the effect that the majority can change the rules at any time is so much dust thrown in
the eyes of those who wish to reach the end of the rule XXII question. The dust arises because of the fact that the
question is not whether a majority can vote a change—there is no question about that; it can vote a change at any
time—but a question of when the majority can reach a vote.” See p. 125.
15
An attorney, Jeffrey Tobin, wrote about a 2005 plan to circumvent the 60-vote requirement of Senate Rule XXII to
end judicial filibusters by majority vote. He titled his article “Blowing Up the Senate,” The New Yorker, March 7, 2005,
pp. 42-46.
16
Richard A. Arenberg and Robert A. Dove, Defending the Filibuster (Bloomington, IN: Indiana University Press,
2012. Chapter 10 of this book is titled “Reforming the Filibuster: The Constitutional Option;” Chapter 11 is titled
“Reforming the Filibuster: The Nuclear Option.” Arenberg and Dove quote Senator Trent Lott, R-MS, the former
Majority Leader (1996-2004), as the originator of the “nuclear option” term. He later called it the “constitutional plan,”
which, he said, was “inspired by prose about appointing judges found in both the Constitution and the Federalist
Papers.” p. 136.
17
Congressional Record, vol. 121, March 4, 1975, p. 5080.
18
Alan S. Frumin, Senate Procedure: Precedents and Practices (Washington, D.C.: U.S. Govt. Print. Off., 1992), p.
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of the ‘constitutional option.’ The difference is that this parliamentary maneuver would be
applied [during] a congressional session” rather than at the beginning of a new Congress.19
Senators often turn to one or the other option in their attempt to amend the Standing Rules of the
Senate by majority vote, bypassing the supermajority impediment. The use of either option to try
to amend a major rule of the Senate is almost certain to rile many Members as being outside the
conventional legislative process: proposals to amend Senate rules are typically referred to the
Committee on Rules and Administration for study and review. Attempts to amend Rule XXII can
arouse considerable notice by the media, outside groups, and the attentive public.
To summarize: the nuclear option involves the creation of new debate-ending precedents using
proceedings that may require actions in contravention of existing precedents or rules. Precedents
are the common law of the Senate and govern scores of chamber proceedings. As freshman
Senator Jeff Flake of Arizona noted in his maiden speech, the Senate is “an institution bound by
tradition and precedent.”20 Former Senator Judd Gregg of New Hampshire, a four-term veteran of
the Senate, underscored Senator Flake’s observation. “To the extent that there are precedents,” he
said, “they’re extraordinarily important. In the parliamentary process, precedent is what
controls.”21 Precedents do not change the formal text of Senate rules, but they do affect their
interpretation and application in Senate proceedings.
The other route to amending the Standing Rules of the Senate by majority vote emphasizes the
Senate’s constitutional rulemaking authority under Article I, Section 5. This approach has often
occurred biennially at the beginning of a new Congress. It is the principal focus of this report.
Remember that a Senate majority can amend the Standing Rules at any time. At issue is Rule
XXII’s two-thirds vote requirement to invoke cloture before the Senate might adopt by majority
vote a pending amendment to its Standing Rules. A further review of the two reform options—
creating precedents or amending Senate rules—merits additional discussion because each option
can provoke contentious floor struggles.
Precedents and Senate Rules
A feature of precedential change is that the text of a formal rule remains unchanged, such as Rule
XXII, but the new precedent effectively alters all or part of its application and interpretation in
chamber proceedings. A good on-point illustration of how a precedent could change Rule XXII
was considered in May 2005.22 Majority Leader Bill Frist, R-TN, was frustrated by Democratic
filibusters against judicial nominees of President George W. Bush. The majority leader realized
that in a polarized Senate with 55 GOP Senators and partisan tensions high, he was unlikely to
attract the 60 votes required to invoke cloture to end extended debate on a nomination. However,
he believed he could win majority approval of these nominees by employing the nuclear option,
establishing by majority vote a Senate precedent that would end the ability of a minority party to
filibuster these nominees and permit a Senate majority to overcome these filibusters. One version
(...continued)
145.
19
Arenberg and Dove, Defending the Filibuster, p. 135.
20
Senator Jeff Flake, Congressional Record, vol. 159, June 4, 2013, p. S3927.
21
Joseph J. Schatz, “Debate Turns to Precedents Already Established and Those in the Making,” CQ Today, March 24,
2010, p. 7.
22
For an analysis of several examples of changing Senate procedures by precedent, as well as useful background on the
filibuster, see Martin B. Gold and Dimple Gupta, “The Constitutional Option To Change Senate Rules and Procedures:
A Majoritarian Means To Overcome the Filibuster,” Harvard Journal of Law & Public Policy, Fall 2004, pp. 205-272.
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of the parliamentary strategy he devised to create this precedent outlines a sequence of actions
like the following:
Bring a controversial judicial nominee to the floor, which Democrats would
filibuster.
After a failed cloture vote to end debate on confirming the nominee, Senator Frist
would raise a point of order that further debate was dilatory and that a majority
vote was sufficient to invoke cloture on the nominee.
The ruling by the presiding officer, perhaps the President of the Senate, Vice
President Dick Cheney, would sustain the point of order. This ruling might not
comport with established precedents and be contrary to the advice of the Senate
parliamentarian. As one news account stated, Cheney “almost certainly will
oversee [as the presiding officer] any deployment of the so-called ‘nuclear
option’ on judges.”23 If the Chair’s ruling at this point went unchallenged, it
would set a new Senate precedent.
However, the strong likelihood was that the minority leader would appeal the
decision of the Chair on the grounds that it contravenes existing rules governing
Senate procedure.
The majority leader would then make a non-debatable motion to table (kill) the
appeal.
A Senate majority would agree to the tabling motion, which would have two
immediate consequences: (1) affirming the Chair’s ruling, thus ending further
extended debate on the pending judicial nomination, and (2) establishing a new
precedent—as defined by the point of order—that allows Senators to end judicial
filibusters by majority vote.
Majority Leader Frist never had the chance to execute his planned procedural maneuver. He was
blocked by a bipartisan accord reached by an ad hoc Senate group, the so-called “Gang of 14,”
seven Democrats and seven Republicans. This bipartisan group had been meeting quietly for
weeks, trying to devise a compromise to break the political stalemate on judicial nominations and
avert use of the nuclear option. They were successful. For example, in their Memorandum of
Understanding, the seven Republicans promised not to support “any recommendation to or
interpretation of the Rules of the Senate that would force a vote on a judicial nomination by
means other than unanimous consent or Rule XXII.” In return, the seven Democrats promised not
to filibuster certain pending judicial appointments, and agreed that judicial nominees “should
only be filibustered under extraordinary circumstances, and each signatory must use his or her
own discretion and judgment in determining whether such circumstances exist.”24 Thus, a highstakes parliamentary showdown over ending filibusters on judicial nominations by majority vote
was averted. Nevertheless, the basic concept of this form of action generally provided the
structure for the successful use of a “nuclear option” eight years later by Majority Leader Harry
Reid, D-NV (see Part VI).
Four strategic considerations are important to note about Senator Frist’s unrealized plan. First, it
is especially useful for advocates of procedural change to have the support of the majority leader,
because he sets the schedule of floor proceedings, enjoys priority of recognition from the Chair,
and engages in the vote-gathering process. Second, it is essential to have a supporter presiding, so
23
24
Geoff Earler, “The Veep Is Heading To Disclosed Location,” The Hill, April 28, 2005, p. 1.
The Memorandum of Understanding can be found in the Congressional Record, vol. 151, May 24, 2005, p. 10931.
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that he/she will follow an agreed-upon procedural script—including the issuance of rulings
contrary to precedent—that bolsters the objectives of the reformers. Third, the majority leader
should expect an appeal of the Chair’s ruling, either by the minority leader or his designee.
Fourth, once the appeal is made, the majority leader would immediately offer a non-debatable
motion to table (kill) the appeal, which would be agreed to by majority vote. Thus, the new
precedent would end filibusters on judicial nominees.
Important to emphasize in the Frist example is the favorable ruling of the Chair. Without it, the
majority leader cannot secure the desired precedent by moving to table the appeal. If the presiding
officer rejects the majority leader’s point of order, an appeal of that ruling would place the
majority leader in an untenable parliamentary situation for two reasons. First, appeals normally
are subject to unlimited debate that may require a supermajority vote to limit, outcomes
diametrically opposed to the preferences of the majority leader. Second, a motion to table the
appeal, if one should be made, is not an effective option for the majority leader because it upholds
the Chair’s ruling. Failure to table means the appeal remains open to extended debate.
The Senate’s Rulemaking Authority
Champions of filibuster reform contend that the Senate may, like the House, adopt its rules by
majority vote when a new Congress convenes. Among the inter-connected principles asserted by
reform-minded Senators are as follows: (1) A Senate majority has the constitutional right at the
start of a new Congress to create or amend procedural rules, unhindered by Senate rules inherited
from earlier Congresses. (2) All Senate rules continue from one Congress to the next except those
viewed as being unconstitutional. The cloture rule, therefore, is unconstitutional to the extent that
it inhibits the Senate from exercising its constitutional power to amend its rules. (3) Even if
Senate rules continue from one Congress to the next, this continuity cannot extend to rules
viewed as being unconstitutional. As asserted in 1969 by Democratic Senator Frank Church of
Idaho, the start of a new Congress is a special constitutional time that permits the Senate to
change its procedures by majority vote unencumbered by chamber rules adopted by a previous
Congress.
Experience over the past two decades makes it perfectly clear that there is no escape
hatch once the Senate binds itself to rule XXII at the beginning of a new Congress. After
rule XXII is acquiesced in by a new Congress, it becomes self-perpetuating until the next
Congress is elected, since it has proven impossible to obtain the required two-thirds vote
to close debate on any proposal to change the rule. This means that modification of [Rule
XXII] will either be won at the opening of a new Congress, when the majority can make
the decisions, or it will not be won at all.25
Many lawmakers, then and now, challenge Senator Church’s view as being contrary to Senate
rules, traditions, and the long-standing “continuing body” doctrine. Senator Church argues that
the Senate that convenes after an election is a new Senate; others emphasize that it is a continuing
body, which has been the unbroken tradition since the Second Congress.
The basic idea of the continuing body is that from its beginning in 1789, the Senate always has a
quorum (a majority under the Constitution) of Senators to conduct official business. Proponents
of this doctrine state that because only one-third of the Senate’s membership stands for election
every two years, the Founding Fathers enabled the other two-thirds of the chamber’s membership
to operate as a functioning continuing body. Moreover, long-standing practices bolster the
credibility of the doctrine, such as Senate officers have no set term of office and serve until their
25
Congressional Record, vol. 115, January 13, 1969, p. 528.
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successors are named; standing committees and their membership, as well as standing orders,
simple Senate resolutions and concurrent resolutions (such as budget resolutions), and unanimous
consent agreements continue from one Congress to the next until they are changed; treaties
submitted to the Senate and articles of impeachment from the House of Representatives remain
before the Senate from one Congress to the next; and “the uniform practice from the time of the
organization of the Second Senate until the present time has been to treat the rules of the Senate
as continuing.”26 Further, a 1959 amendment to Senate Rule V states explicitly that the chamber’s
rules continue from one Congress to the next “unless they are changed as provided in these
rules,” which include the supermajority cloture requirements of Rule XXII. Rule V was adopted
as part of a package amending Rule XXII. It was not voted on separately.
Senate history also reveals that there is not universal adherence to the continuing body thesis. In
1959, prior to the aforementioned Rule V addition to the Standing Rules of the Senate, Senator
Hubert Humphrey of Minnesota referred to “the misguided theory that the rules of the Senate are
continuing.” He contended that the theory was of “doubtful validity.”27 His point was two-fold:
first, simply because two-thirds of the Senate’s Members carry over from one Congress to the
next does not mean that the Senate cannot change its rules by majority vote;28 and, second,
because the Senate’s rules carry over does not imply that a new Senate necessarily favors the old
rules.
In short, a fundamental question is this: Do the rules of the Senate automatically carry over from
Congress to Congress and govern proposals to change Senate rules at the start of a new Congress?
Senate Rule V—chamber rules carry over unless changed according to the procedures outlined
therein—answers the question affirmatively.29 Senate reformers assert that the Constitution
(Article I, Section 5) takes precedence over Senate Rule V. As Democratic Senator Joseph S.
Clark of Pennsylvania said:
The fact is that the Senate is a continuing body for some purposes but not for others. The
question is accordingly entirely irrelevant to the issue of the constitutional right of each
newly elected Senate to change its rules at the beginning of each session, as authorized by
the Constitution. For that purpose the Constitution overrides any fine spun theory about a
continuing body.30
Three times in the 1950s—1953 (the 83rd Congress), 1957 (the 85th Congress), and 1959 (the 86th
Congress)—Senate reformers stated the case for the Senate’s right to adopt its Standing Rules at
the start of a new Congress without facing a possible supermajority hurdle. If successful, their
goal also would do away with the continuing body doctrine. The historical record suggests that
the principal focus of the 1950s reformers was to amend Rule XXII rather than to readopt the
Senate’s Standing Rules every two years. Yet they had to argue for revising chamber rules
because of two 1949 changes to Rule XXII that made any effort to amend only that rule highly
problematic, if not impossible. This reality heavily conditioned the 1950s efforts.
First, the number required to invoke cloture was changed in 1949 from the original 1917 cloture
rule—two-thirds of those voting—to two-thirds of the Senators duly chosen and sworn. Saddled
with mobilizing a higher threshold of support for invoking cloture, the 1950s reformers knew the
26
Congressional Record, vol. 99, January 7, 1953, pp. 165-178.
Congressional Record, vol. 105, January 8, 1959, p. 119.
28
Left unaddressed by Senator Humphrey is whether the carryover of a quorum means that the rules carry over.
29
The continuity provision in Senate Rule V was adopted as part of the package amending Rule XXII. It was not voted
on separately.
30
Congressional Record, vol. 109, January 31, 1963, p. 1504.
27
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odds of that happening were quite slim. Second, and more significant, the 1949 change to Rule
XXII disallowed cloture on motions to proceed to the consideration of proposals to alter Senate
rules. This feature of Rule XXII remained in place until it was changed in 1959.
In short, the reformers had no real or effective way to stop filibusters on Senate rule changes. As a
result, reformers—led by Senator Clinton Anderson, D-NM—believed that the only way they
could alter Rule XXII by majority vote without provoking a filibuster was to invoke the
constitutional option: assert their right to adopt new Senate rules by majority vote, rejecting any
supermajority requirement to achieve that goal. (They did not consider the nuclear option.) Until
new rules were adopted, the presumption of the reformers was that the Senate would follow
general parliamentary procedures that would permit a majority to cut off extended debate, such as
the previous question motion. Their plan, if agreed to, would shatter the continuity doctrine. (In
later years, reformers emphasized that their primary focus was to revise Rule XXII rather than all
Senate rules).
Attempts to Amend the Standing Rules of the
Senate on Opening Day: 1953, 1957, and 1959
It is useful to note that several parliamentary topics discussed herein vary in their salience in the
debates of different years. Even so, they are subjects that have been raised repeatedly over the
decades during debates on revising Senate rules. The topics include such matters as the role of the
majority leader and the Vice President as presiding officer; the continuing body doctrine; interim
procedural rules pending adoption of new Senate rules (or amendments thereto); the “opening
day” concept; parliamentary strategies; and ending debate. To be sure, many of these general
issues also orient much of the cloture reform discussion in subsequent decades.
83rd Congress (1953)
On January 6, 1953, Senator Clinton Anderson, D-NM, moved “that the Senate take up for
immediate consideration the adoption of rules for the Senate of the Eighty-third Congress.” As he
stated, “I am contending that we are operating without rules at the present time.”31 Senator
Anderson’s view was that the Senate’s rules had expired, which would mean that new ones could
be adopted by majority vote of the membership without the requirement for a supermajority
cloture vote to end debate on their proposal. A reform advocate, Democratic Senator Paul
Douglas of Illinois, contended that, in the absence of Senate rules, “general parliamentary law
governed in the Senate” until a majority adopted new Senate rules.32 Anderson’s fundamental
goal was to retain the Senate’s previous rules with one exception: amend Rule XXII to reduce the
number required to invoke cloture.
Majority Leader Robert Taft, R-OH, noted that he could deal with Senator Anderson’s motion in
several ways: by extended debate, by a non-debatable motion to table (or kill) the motion, or by
raising a point of order. He then said that, after sufficient debate on Anderson’s motion, he would
either move to table or make a point of order that the motion contravened the continuing rules of
the Senate. Senator Taft noted that no “Senate has undertaken at the beginning of a Congress to
adopt its rules. It has been assumed that the Senate is a continuing body and that it has continuing
31
32
Congressional Record, vol. 99, January 6, 1953, p. 118.
Ibid., January 7, 1953, p. 220.
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rules.”33 He added: “It is now said that the Senate must now operate under Robert’s Rules of
Order, or some other rules of parliamentary law. But surely there must be rules of some kind. It
seems obvious to me that those should be the [existing] rules of the Senate.”34 Senator Taft was
suggesting that Senate rules have been continuously in effect since the First Congress, with later
amendments, without any explicit requirement that they must be readopted at the start of every
new Congress. Since the Senate already had rules, there was no need to proceed to adopt
biennially a set of new rules.
Opponents of the continuing body thesis recognized its “Catch-22” feature: how can the Senate
amend Rule XXII when the practical effect of that rule is to prevent its amendment? To overcome
this obstacle, supporters of majority cloture (or some other change in the number needed to
invoke that procedure) contended that every new Senate can amend its rules by majority vote
under the Constitution. The continuing body argument, reformers said, is simply not relevant,
because any new Senate on opening day can adopt its own rules. As Senator Humphrey put it: “I
think the question before the Senate is whether we have the right to adopt rules, be they good,
bad, or indifferent. Do we, as Members of this body, lose our right to have anything to say about
its rules, by reason of the fact that we are elected to a Senate which adopted rules years and years
ago?”35 Moreover, Members who voted for those rules probably no longer serve in the
institution? Acquiescence in repeatedly accepting the rules of previous Senates did not mean,
according to Senator Humphrey, that “the Senate has … renounced its constitutional right to
make its own rules. It cannot, in fact, renounce this constitutional power.”36
Majority Leader Taft, who doubtless knew he had the votes to table Anderson’s motion,
responded to these issues in various ways. For one, he stated that the continuing body theory is
supported by tradition and precedent and enhances the Senate’s “prestige and power. I believe
that it adds to the influence we have with the people in performing the duties which we have to
perform.” For another, it is a “radical step” to declare “that the Senate is not a continuing body,
that we have no rules, and that at the first of every session we are to debate all the practices and
rules of the Senate.” Third, Senator Taft noted that, if reformers can mobilize the votes and with
favorable rulings from the presiding officer, “it is always possible for the Senate to protect itself
against a filibuster.” He added: “I submit that the rules of the Senate permit a change by a
majority vote at any time the Senate wishes to make a change.”37 Majority Leader Taft also made
clear that he would not prejudice the right of Senator Anderson to offer his rules-revamping
resolution. In the end, after three days of debate (January 3, 6, and 7), the Senate voted by a wide
margin (70 to 21) to table Senator Anderson’s motion.38 That decision meant that existing Senate
rules continued to govern chamber proceedings.
33
Ibid., January 6, 1953, p. 108.
Ibid., pp. 111-112. Senator Richard Russell of Georgia, the acknowledged leader of the informal “Southern Caucus,”
inquired of Vice President Alben Barkley under what rules was the Senate operating. He received this response from
the Chair: “The organization of the Senate is an inherent right of the Senate, as it is of any sovereign body, and all that
has taken place up to date has been under that inherent right.” Ibid., January 3, 1953, p. 10.
35
Congressional Record, January 6, 1953, p. 114.
36
Ibid., Jan. 7, 1953, p. 220.
37
Ibid., January 7, 1953. The first and second points are found on p. 112, the third on p. 113.
38
Ibid., p. 232.
34
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85th Congress (1957)39
On January 3, Senator Anderson made the same motion that he proposed four years earlier. Citing
Article I, Section 5, of the Constitution, Senator Anderson said: “I now move that this body take
up for immediate consideration the adoption of rules for the Senate of the 85th Congress.”
Majority Leader Lyndon Johnson, D-TX, exercising his leadership prerogative of first recognition
by the Chair, planned to offer a motion to table Anderson’s proposal. However, after some
discussion with Anderson and his supporters, Johnson proposed a unanimous consent agreement
that provided six hours of debate, equally divided, with a vote on the tabling motion to occur the
next day at 6 p.m. There was no objection to the accord. During discussion of the unanimous
consent agreement, Senator Wayne Morse, D-OR, suggested that the Senate ought to face the
issue head-on of whether a new Senate can adopt new rules. He suggested that the Senate follow
these parliamentary steps:
First entertain a motion [that Senator Anderson] proposes to make to the effect that the
Senate proceed to adopt Senate rules binding upon the 85 th Congress. Second, the Senate
and the Presiding Officer should then consider a point of order raised by some Senator
asking for a determination as to whether or not the motion calling for the adoption of new
rules is in fact in order. Third, the Senate should then consider an appeal from the
decision of the Chair on the point of order.40
Senator Johnson disagreed with Morse’s recommendation. He pointed out that a vote on the
motion to table was used in 1953 and, furthermore, “when any Senator votes on the motion to lay
on the table, he really is voting on the question of whether new rules for the Senate should be
adopted at the beginning of the 85th Congress.”41
The next day the Senate voted 55 to 38 for Senator Johnson’s tabling motion.42 Nonetheless,
reform advocates won a favorable and detailed advisory opinion from the President of the Senate,
Vice President Richard Nixon, concerning the Senate’s constitutional right by majority vote to
change its rules at the beginning of a new Congress. Nixon’s advisory opinion addressed how to
reconcile two constitutional mandates: (1) the constitutional provision that only one-third of the
Senate is up for election every two years, implying that the Framers intended the Senate to be a
continuing body “for at least some purposes;” and (2) the constitutional provision providing that
“each House may determine the rules of its Proceedings.” Responding to a parliamentary inquiry
from Senator Humphrey, Vice President Nixon said in part:
Any provision of Senate rules adopted in a previous Congress which has the expressed or
practical effect of denying the majority of the Senate in a new Congress the right to adopt
the rules under which it desires to proceed is, in the opinion of the Chair,
unconstitutional.
39
No attempt was made at the start of the 84th Congress to revise Senate Rule XXII. As Senator Anderson explained,
Senate reformers “assembled once more to consider challenging Rule XXII…. But in the [1954] elections, the
Democrats had regained control of the Senate by a slim margin and Lyndon Johnson had thereby gone from Minority
Leader to Majority Leader. Johnson approached one of our strongest allies, [Senator] Hubert Humphrey, and pleaded
with him to forget the rules fight for the time being…. Humphrey came back to us and asked us to desist from
embarrassing his friend Lyndon. He also communicated Johnson’s entreaty that we not shatter party harmony on the
eve of our resuming control of the Congress. So in 1955, we deferred to the wishes of our Majority Leader and skipped
the biennial assault on the seemingly impregnable fortress of Rule 22.” See Clinton P. Anderson, Outsider in the Senate
(New York: The World Publishing Co., 1970), p. 137.
40
Congressional Record, vol. 103, January 3, 1957, p. 11.
41
Ibid., p. 11.
42
Ibid., Jan. 4, 1957, p. 215.
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The Chair emphasizes that this is only his own opinion, because under Senate precedents,
a question of constitutionality can only be decided by the Senate itself, and not by the
Chair.
[U]ntil the Senate at the initiation of a new Congress expresses its will otherwise, the
rules in effect in the previous Congress in the opinion of the Chair remain in effect, with
the exception that the Senate should not be bound by any provision in those previous
rules which denies the membership of the Senate the power to exercise its constitutional
right to make its own rules.43
Nixon also stated that if Johnson’s tabling motion prevailed (as it did), he would view that as the
Senate’s approval of the previous rules of the chamber; if the motion to table failed, that would
mean that “the Senate can proceed with the adoption of rules under whatever procedures the
majority of the Senate approves.”44 Senator Richard Russell, D-GA, the leader of the southern
lawmakers and Senator Johnson’s mentor and patron, made it known informally that, if
Anderson’s motion prevailed, he would offer changes to every Senate rule and filibuster every
proposed alteration, forcing an endless number of separate cloture votes.45 Although Anderson’s
motion was rejected on a procedural vote, reformers garnered a favorable advisory opinion from
the Vice President that bolstered their commitment to changing Senate rules by majority vote.46
86th Congress (1959)
The legislative context for the constitutional option seemed especially favorable in the 86th
Congress.47 One reason was the large Democratic election victory in 1958. The Senate’s lineup
went from 49 Democrats to 47 Republicans in the previous Congress to 64 Democrats to 34
Republicans in the 86th Congress. Of 15 Democratic freshmen Senators, at least half were
sympathetic to rules changes. Moreover, with Vice President Nixon presiding over the Senate, it
was expected that he would offer advisory opinions favorable to Senator Anderson and his
supporters. Majority Leader Lyndon Johnson, who opposed the constitutional option, recognized
the favorable climate for change and proposed a bipartisan filibuster rules change that the Senate
in the end adopted unchanged: the first major change of filibuster rules in a decade.
On January 7, the opening day of the 86th Congress, Senator Johnson, using the priority of
recognition accorded majority leaders by Senate precedents, asked unanimous consent for the
immediate consideration of his reform resolution (S. Res. 5), co-sponsored by nearly every top
43
Ibid., pp. 178-179.
Ibid., p. 179.
45
Robert A. Caro, Master of the Senate (New York: Alfred A. Knopf, 2002), p. 856.
46
Senator Anderson wrote that he and Nixon lived only a few blocks from each other in Northwest Washington.
“[O]ccasionally, when I was out walking [my] terrier, I would drop by for a talk…. When I talked to Nixon, I found
that his position was far different from what Taft’s had been only four years before. He seemed persuaded by the
rightness of the cloture amendment,” and seemed ready to assist. See Anderson, Outsider in the Senate, p. 144. A noted
biographer of Lyndon Johnson said that Nixon welcomed the opportunity to preside “in hopes of burnishing his civil
rights credentials and winning the support of African Americans for an expected run for the White House in 1960.” See
Caro, Master of the Senate, p. 856.
47
It is worth emphasizing that the Senate successfully amended Rule XXII in both 1949 and 1959. On March 17, 1949,
the Senate adopted S. Res. 15, which toughened the vote required for cloture from two-thirds voting to two-thirds duly
chosen and sworn. The Senate also agreed to make Rule XXII applicable to motions to proceed generally, except for
motions to proceed to proposals to amend the Standing Rules of the Senate. On January 12, 1959, S. Res. 5 dropped the
necessary vote for cloture to two-thirds voting, removed the prohibition against motions to proceed to measures to
amend the Standing Rules of the Senate, and added language stating that the Senate’s rules continue from one Congress
to the next.
44
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Democratic and Republican leader. S. Res. 5 proposed to change the number required to invoke
cloture on measures and matters from two-thirds of the entire membership to two-thirds of those
present and voting. That standard would also apply to motions to proceed to rules changes. In
addition, S. Res. 5 would also add a new clause to Senate Rule V (then Rule XXXII) stating that
the rules of the Senate continue from one Congress to the next unless changed as provided in the
rules. The new clause, according to two legal scholars, was “a concession to Senator Russell” of
Georgia and the other southern Senators.48 Importantly, Senator Johnson’s action preempted
Senator Anderson’s motion to have the Senate take up for immediate consideration “the adoption
of rules for the 86th Congress,” as he had done in 1953 and 1957. Senator Johnson’s objective was
to have his reform initiative and not Anderson’s considered first by the Senate.
During his opening remarks on S. Res. 5, Senator Johnson referred to the Senate’s one-day rule,
“which entitles the Senate to a day’s notice in writing of motions to amend or modify a rule and
that any Senator may insist upon compliance with the rule.”49 If a Member objected to his request
for the immediate consideration of S. Res. 5, Senator Johnson said he would comply with the
one-day written notice requirement and then call up S. Res. 5 the next session day (January 8).
Subsequent to Johnson’s asking unanimous consent for the immediate consideration of S. Res. 5,
Senator Jacob Javits, who supported Anderson, asked Presiding Officer Nixon: “Under what rule
will the resolution submitted by the Senator from Texas be considered?” The Chair replied: under
the rules of the Senate “which have been adopted previously by the Senate,” but not any Senate
rule that restricts the constitutional right of a majority of Senators “to cut off debate in order to
exercise the right of changing or determining the rules.” The Vice President elaborated:
If, for example, during the course of debate on the motion of the Senator from Texas,
which deals with changing the rules, a Senator believes that action should be taken and
debate closed, such Senator at that time could, in the opinion of the Chair, raise the
constitutional question by moving to cut off debate. The Chair would indicate his opinion
that such a motion was in order but would submit the question to the Senate for its
decision.50
After further discussion, Senators Javits and Clifford Case, R-NJ, objected to Johnson’s request to
call up S. Res. 5. Two things quickly happened back-to-back. First, Senator Johnson sent to the
desk his written notice to amend certain Senate rules. Second, Senator Anderson “moved that the
Senate proceed to adopt its rules.” (Senator Anderson’s motion had the bipartisan support of
thirty-two other Senators). However, Senator Johnson insisted that he had not yielded the floor
and, therefore, Senator Anderson could not offer his motion. The outcome: Senator Johnson
adjourned the Senate but not before he declared that “I do not want my motion [S. Res. 5]
48
Gold and Gupta, “The Constitutional Option To Change Senate Rules and Procedures: A Majoritarian Means To
Overcome the Filibuster,” p. 231; and Ivan Hinderaker, “From the 86th to the 87th Congress: Controversy over
‘Majority Rule’,” in American Government Annual, 1961-1962 (New York: Holt, Rinehard and Winston Inc., 1961), p.
89. As is the case with numerous legislative provisions, lawmakers have their own reasons for voting for or against
such matters. For example, Democratic Senator Joseph O’Mahoney, WY, said he supported Senator Johnson’s
continuous rules provision in S. Res. 5 for these reasons: “I am supporting [the binding] provision in the Johnson
resolution in order to prevent future Senates of the United States from being tied up at the beginning of the Congress
with debates on the floor about the rules. The proposals should be sent to the Committee on Rules and Administration,
where such changes could be considered and, if need be, subsequently made in order.” Congressional Record, January
12, 1959, p. 452.
49
Congressional Record, January 7, 1959, p. 8.
50
Ibid., January 7, 1959, pp. 8-9.
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supplanted by any other motion.”51 Significantly, the adjournment prevented Senator Anderson
from giving written notice of his intent to propose revisions to Senate rules.52
The next day, January 8, there was considerable discussion about the procedural state of play in
the chamber. Three events are worth noting. First, after the Vice President presented S. Res. 5 to
the Senate, Majority Leader Johnson stated, “I will be glad to ask unanimous consent that it be in
order to consider [Senator Anderson’s] motion today.” The Senate agreed to Johnson’s consent
request, and Anderson—citing Article I, Section 5 of the Constitution—moved to adopt new rules
51
Ibid., p. 11.
There are a number of procedural issues that sometimes assume a prominent role in efforts to change Senate rules, as
illustrated in Senator Johnson adjourning the Senate. Three things merit mention. First, Senate rules distinguish
between a “calendar day” and a “legislative day,” and this distinction can impact when or whether a resolution
proposing to amend Senate rules might reach the floor. A “calendar day” is the commonly understood 24-hour time
period. A “legislative day” refers to the period when the Senate convenes after an adjournment and ends when it next
adjourns. If the Senate recesses at the end of a daily session rather than adjourns—which motion is the prerogative of
the majority leader to make—the legislative day is carried over into the next calendar day. For example, if the Senate
recesses on July 8 and continues to recess from day to day until July 23, the legislative day still remains July 8.
However, as soon as the Senate adjourns, the calendar day and legislative day become the same. Efforts in future years
to revise Rule XXII also provoked concern about whether moving to a new legislative day negated the alleged special
conditions associated with continuing the first day.
Second, simple resolutions (S. Res.)—a usual vehicle for amending Senate rules—can be called up for immediate
consideration only by unanimous consent. It is quite common for noncontroversial Senate resolutions (for example,
designating September as “National Prostate Cancer Awareness Month”) to be introduced and adopted by unanimous
consent on the same day they were introduced. If Senate resolutions are introduced, referred, and reported by the
appropriate committee(s) of jurisdiction—remember that committees might refuse to take any action on these
measures—they could be called up for chamber consideration by unanimous consent or by a debatable motion to
proceed. Absent unanimous consent, as in Senator Johnson’s case, simple resolutions are placed on a special section of
the legislative calendar entitled “Resolutions and Motions over, under the rule.” This verbiage means that the
resolutions go over to this section of the calendar to be called up—at least positioned to be called up—per the terms of
Rule XIV: “When objection is heard to immediate consideration of a resolution or motion when submitted, it shall be
placed here [the appropriate section of the legislative calendar], to be laid before the Senate, on the next legislative day
for consideration, unless by unanimous consent the Senate shall otherwise direct.” Notice the inclusion of “legislative
day” in this Senate rule. A majority leader could prevent any resolution from being taken up by successfully moving to
recess the Senate for numerous session days, inhibiting any chance for the resolution to be called up.
Moreover, motions to call up resolutions (called “motions to proceed to a measure or matter” in official Senate
parlance) are debatable as are the resolutions themselves, requiring a vote of two-thirds of Senators voting, a quorum
being present, to invoke cloture on a resolution to amend the Standing Rules of the Senate. In addition, Senate Rule
VIII states that any resolutions that have lain over one legislative day, having gone over, under the rule, are laid before
the Senate in the order in which they went over, under the rule during a two-hour Senate period called the “Morning
Hour.” The morning hour is the first two hours after the Senate convenes following an adjournment. If the resolution is
not completed during this period, it is placed on the Calendar of General Orders where it could be called up again by
unanimous consent or a debatable motion to proceed to its consideration. And under Senate Rule V, motions to amend
Senate rules require one calendar day’s notice in writing, as Senator Johnson provided for S. Res. 5.
Third, by adjourning the Senate on January 7, Senator Johnson not only blocked Senator Anderson’s effort to call up
his reform resolution for at least two session days—assuming Johnson did not recess the Senate—but he ensured that S.
Res. 5 was in compliance with Rule V and Rule XIV. The procedural complexities noted in the previous paragraph did
not come to pass. As noted in the text, Senator Johnson said on January 8 that he was amenable to having Senator
Anderson’s resolution considered before his own. The Senate agreed to Johnson’s request despite Senator Anderson’s
resolution not meeting the requirements of Rules V and XIV. Senator Johnson’s action no doubt indicated that he had
the votes to defeat Senator Anderson’s motion, which did in fact occur.
There is little doubt that filibuster fights can give rise to procedural hardball tactics where Senate rules and precedents
are employed by both opponents and proponents of rules changes. Importantly, it is often the case that the actual rules
may be ignored or waived as informal understandings and unanimous consent requests shape the parliamentary
maneuvering over rules changes. Senate party leaders understand that if Senate reformers are not given reasonable
opportunity to make their case for change on the Senate floor, they have ample procedural means to frustrate Senate
action on numerous other matters and measures.
52
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for the 86th Congress. Johnson then propounded a unanimous consent request, which was agreed
to, that Anderson’s motion be considered as a substitute for S. Res. 5.53 Johnson made it clear that
he would consult at some point during the day with Minority Leader Everett Dirksen, R-IL,
before offering a motion to table Anderson’s proposal.54 Making Senator Anderson’s motion
immediately in order was certainly a strong indication that Johnson had the votes to defeat his
colleague’s proposal and to win adoption of S. Res. 5.
Second, because the Senate was now in the second calendar day of the new Congress, Senator
Javits asked the Vice President whether “the Anderson motion and the Johnson of Texas motion
are both within the confines of motions made at the beginning of a new Congress.” The Vice
President replied: “The Senator from New York is correct.”55 The Vice President emphasized
again the distinction between the procedural position of the Senate at the beginning of a new
Congress and during a Congress. At the start of a new Congress, a majority has the constitutional
authority to amend its rules; during a Congress, once the initial decision is made about chamber
rules, the Senate commits to them whether by acquiescence or formal action.56 Senator Javits
tried unsuccessfully to strike the continuity of rules provision from S. Res. 5.57
Third, Vice President Nixon’s judgment that the Senate would follow the old rules except for
Rule XXII, which he viewed as unconstitutional, led to considerable discussion of what rules the
Senate was observing pending adoption of new ones. Senator Mike Monroney, D-OK, spoke at
length about the perils of “throwing out the rule book,” saying “there are no rules which would
apply. The Anderson proposal would take us into a blind area.” It would open a “Pandora’s box”
of parliamentary misery. He went on to state: “We are asked, by the Anderson motion, to throw
overboard the precedents which have been carefully developed since 1790, and to say that on the
opening day of a Congress we shall rewrite the entire book of rules and make them subject to
adoption. Thus any group of Senators having a strong majority behind them could write rules
which could gag the minority.” Senator Monroney urged his colleagues “not to vote to throw
away the entire rule book and open the way for a bargain day for crackpots [who would tear up
the rule book] in some future Senate.”58
Remarks by South Carolina Senator Strom Thurmond supported the sentiments of Senator
Monroney. The South Carolinian asked which form of “general parliamentary law” would serve
as temporary rules until the Senate agreed to adopt permanent rules? He listed nine parliamentary
manuals (Robert’s Rules of Order, for example) as possibilities. “The Senate could easily spend
several months debating and deciding on temporary rules,” exclaimed Thurmond. “After that
would come the more difficult and more time consuming task of debating and agreeing on each of
the permanent rules.”59
Sensitive to the issues raised by Senators Monroney and Thurmond, Senator Anderson modified
his original motion (the adoption of new rules for the Senate), specifying that all Senate rules
would remain in effect except Rule XXII.60 In short, what was not subject to amendment was
accepted by the Senate. Other reform-minded Senators largely dismissed the concerns of Senators
53
Congressional Record, January 8, 1959, pp. 98-99.
Ibid., p. 103.
55
Ibid, p. 101.
56
Ibid., pp. 101-102.
57
Ibid., pp. 452-453. Each amendment was rejected on a division (standing) vote.
58
Ibid., p. 108.
59
Ibid., p.146.
60
Ibid., January 9, 1959, p. 201.
54
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Monroney and Thurmond. “Over in the other body of Congress,” stated Senator Javits, “this
whole job [of amending and adopting the rule book] was done in 3 minutes. The House does it
every 2 years.... They have made it work for decades.”61 Senator Humphrey added that reasonable
Senators “know that most of the rules would be reenacted time after time, as is the case in the
House of Representatives.”62 Senator Paul Douglas said he was astounded that several of his
colleagues believed that the Senate could not adopt new rules very quickly at the start of a new
Congress, as occurs in the House. “I do not claim we are superior to the House,” he said. “But I
do say we are at least as sensible as the House and as coordinated as the House, and that if the
House can adopt new rules at every [new Congress], the Senate can also do it.”63
When debate ended, Majority Leader Johnson moved “to lay on the table the modified
amendment of the Senator from New Mexico, in the nature of a substitute for Senate Resolution
5.” Johnson’s tabling motion carried by a vote of 60 to 36.64 Subsequently, on January 12, the
Senate adopted S. Res. 5, as introduced, by a 72 to 22 vote. To reiterate: S. Res. 5 made two
changes to Rule XXII and one to Senate Rule V: (1) two-thirds of the Senators present and voting
could invoke cloture (previously, cloture required a vote of two-thirds of the entire membership);
(2) cloture could be applied to motions to proceed to consider a change in Senate rules;
heretofore, this was not a feature of Rule XXII; and (3) a provision was added to Rule V
affirming that Senate rules continue from one Congress to the next, “unless they are changed as
provided in these rules.”
The 1950s debate on “opening day” rules changes featured issues that were also prominent in the
1960s and 1970s. The reformers of 1953, 1957, and 1959 encountered little difficulty in having
the Senate debate their proposals to change Senate rules. However, bringing the reformer’s ideas
to an affirmative vote proved to be a procedural and political road too far. This reality also
underscores the difficulty of amending Senate rules on opening day by majority vote. On the
other hand, history also indicates that, given the right set of political circumstances—
determination, patience, adroit leadership, favorable rulings from the Chair, and a committed
majority willing to shatter customary ways of proceeding—the unlikely or seemingly unattainable
can become a real possibility.
Cloture Reform Attempts: 1961 To 1975
During the 1960s and 1970s, the reformers’ strategic purpose shifted from the broad goal of
rewriting the Senate’s rulebook to a specific focus on amending Rule XXII. All their attempts at
revision failed during this era except for the 1975 change. The political context for these
initiatives, especially during the 1960s, was shaped to a large extent by the civil rights struggle of
African Americans. Later, with enactment of civil rights legislation, many Senators who
previously opposed attempts to curb extended debate began to vote for cloture; they realized that
prolonged debate could be employed to achieve their policy/political objectives.
Noteworthy is that the filibuster itself was undergoing change. In the decade from 1961 through
1971, there were more cloture votes (40) than in the period from 1917—the year the cloture rule
was adopted—through 1971. Double and even triple digit cloture votes became the norm in
61
Ibid., January 8, 1959, p. 117.
Ibid., p. 119.
63
Ibid., p. 127.
64
Ibid., January 9, 1959, pp. 207-208.
62
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subsequent Congresses.65 Significantly, for the first time ever, cloture was invoked to end a
southern-led filibuster against the landmark Civil Rights Act of 1964. Gradually, the public’s
strong association of filibusters with southern Senators against civil rights bills waned as
filibusters became a procedural tool for Senators of all ideological stripes. In 1970, for example,
liberal Democratic Senator William Proxmire of Wisconsin and his supporters talked to death a
bill to fund development of a supersonic transport plane.
Along with the usual arguments against changing Rule XXII (protection of minority rights and
small state interests, for example), there were others that emerged during this era. For example,
heightened concern among many Members with the growth of executive power, particularly in
the defense and foreign policy arenas, bolstered support for extended debate as a means to
challenge presidential initiatives and protect congressional power. The willingness of Members to
filibuster also increased during this period for other reasons, such as the decline of informal
folkways (for example, newcomers should be seen and not heard) and the election of assertive
Senators who were not averse to using chamber rules to achieve their personal, policy, and
political goals.66 Thus, efforts continued during the 1961-1975 period (and beyond, of course) to
revise the Senate’s cloture procedure. For each year discussed—1961, 1963, 1965, and so on—
this section will highlight the political context and the major parliamentary/procedural issues that
influenced the eventual outcome.
87th Congress (1961)
Overview
The issue of civil rights was not much in evidence during the 1961 effort to revamp Rule XXII.
However, everyone was mindful that the enactment of the Civil Rights Act of 1960 required
enormous effort on the part of proponents to overcome the dilatory tactics of the opposition. For
example, the Senate debate began February 15, 1960, and ended April 8 with around-the-clock
sessions from February 29 through March 8. Both the Democratic and Republican presidential
platforms of 1960 endorsed filibuster reform. The Democratic platform urged “that action be
taken at the beginning of the 87th Congress to improve congressional procedures so that majority
rule prevails and decisions can be made after reasonable debate without being blocked by a
minority in either house.” The GOP platform supported “efforts to change present rule XXII of
the Senate.”
A bipartisan group of Senators sought to amend Rule XXII rather than try to rewrite de novo the
rules of the 87th Senate. Concern about opening “Pandora’s box”—lengthy argumentation over
every conceivable rules change—led the reformers to opt for a narrower reform approach. There
were two major proposals to change the cloture rule. Senator Anderson and his GOP sponsor,
Thruston Morton of Kentucky, wanted to permit cloture by three-fifths of those present and
voting. Majority Leader Mike Mansfield of Montana backed this idea.67 Senator Hubert
65
The number of cloture votes reached triple digits (112) in the 110th Congress (2007-2009). For a review of Senate
cloture votes, see Senate Cloture Rule (U.S. Govt. Print. Off., 2011), pp. 113-158. The Senate Committee on Rules and
Administration is responsible for preparing this document on a periodic basis.
66
Barbara Sinclair, The Transformation of the U.S. Senate (Baltimore, MD: The Johns Hopkins University Press,
1989).
67
Congressional Record, vol. 107, January 10, 1961), p. 520. Senator Mansfield stated: “I am persuaded that ... a
change [in Rule XXII] sought in the proposal of the distinguished Senator from New Mexico [Mr. Anderson] is
desirable.”
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Humphrey and Republican Whip Thomas Kuchel of California recommended that after 15
calendar days (exclusive of Sundays and legal holidays) of debate, the presiding officer would
submit to the Senate the question of whether the prolonged discussion should be brought to a
close. The vote on this question would be decided by a majority of the Senators chosen and
sworn.
With the November 1960 election of John F. Kennedy as President, there were many Senate
Democrats who were not keen on starting the 87th Congress with a party-splitting debate over
revising the cloture rule. A fractured Senate Democratic Party could jeopardize the new
President’s “New Frontier” program. Contrarily, reform-minded lawmakers argued the
importance of revising Senate rules at the start of the new Congress to protect JFK’s program
from obstructionism. However, after five days of debate, the majority leader offered a motion to
refer the proposed cloture proposals (and other Senate reform resolutions) to the Committee on
Rules and Administration, which Mansfield chaired. Upset with Mansfield’s motion, many
reformers voted against the January 11 referral motion, which prevailed by a 50 to 46 vote.68 This
vote damaged reformers’ prospect for change. Why? Outgoing Vice President Nixon was still
presiding but only until the President Kennedy and Vice President Lyndon Johnson took office on
January 20. The reformers knew that Johnson, unlike Nixon, was not sympathetic to their cause.
Senator Mansfield did promise, however, that he would bring the Anderson three-fifths cloture
reform proposal (S. Res. 4) to the floor in September. The majority leader delivered on his
promise.
Still, there were complaints from various reformers that it was not a propitious time so late in the
session to bring a controversial rules change to the floor when Members were anxious to depart
the capital. Moreover, the Senate would operate under the existing features of Rule XXII
requiring a two-thirds vote of the Members voting, a quorum being present, to end prolonged
debate. On Saturday, September 16, the majority leader moved to proceed to the consideration of
S. Res. 4.69 Immediately, Senator Mansfield and Republican Leader Everett McKinley Dirksen of
Illinois submitted a cloture motion signed by 21 Senators to bring debate on the motion to
proceed to the resolution to a close. On Tuesday, September 19, the Senate failed to invoke
cloture (37 yeas to 43 nays). The Senate then voted (47 to 35), on a request by the majority leader,
to table his motion to consider S. Res. 4.70 The tabling motion ended the effort to amend Rule
XXII.
Calling Up the Anderson/Morton and Humphrey/Kuchel Resolutions
The bipartisan Senate leadership supported the goal of the four reformers to bring their
resolutions before the Senate.71 On opening day (January 3), soon after the traditional proceedings
(swearing in of newly elected Senators, adopting resolutions notifying the President and the
House that the Senate is ready to proceed to business, and so on), Senator Anderson stated that
“in accordance with article I, section 5, of the Constitution, which declares that each House may
determine the rules of its proceedings, on behalf of myself and the [GOP] Senator from Kentucky
[Mr. Morton], I send to the desk a resolution [S. Res. 4] and ask that it be read.” After the
68
Ibid., January 11, 1961, p. 625.
Ibid., September 16, 1961, p. 19838.
70
Ibid., September 19, 1961, pp. 20146-20148.
71
Other Senators also advocated institutional reforms, such as Democratic Senator Joseph Clark of Pennsylvania. He
recommended such changes as the adoption of a previous question motion (emulating the House’s procedure), a
germaneness requirement for debate, and a committee “bill of rights” that would allow, for example, a majority of
panel Members to convene meetings and take up legislation.
69
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resolution was read, Senator Anderson quickly asked unanimous consent for the immediate
consideration of S. Res. 4, reducing cloture from two-thirds to three-fifths of those voting, a
quorum being present. Senator Russell of Georgia objected. Citing Senate Rule V requiring one
day’s notice in writing of proposals to amend Senate rules, Senator Anderson submitted his
“Notice of Motion to Amend Rule XXII.” The same procedure occurred with the
Humphrey/Kuchel recommendation (S. Res. 5), providing for majority cloture after 15 session
days of debate. Senator Russell also objected to S. Res. 5’s immediate consideration. Senator
Russell emphasized “that there is no question that it would be necessary for the Senate to adjourn
to ever get the Anderson motion before the Senate, because the rule requires [a layover of] 1
legislative day.”72 The Vice President added: “The [Anderson] resolution [S. Res. 4] will lie over
[upon objection], under the rule.”73
To comply with Senate Rule V, Majority Leader Mansfield adjourned the chamber so that the
reform resolutions would be placed on the section of the Senate’s Calendar of Business entitled
“Resolutions and Motions Over, Under the Rule.” The presiding officer lays them before the
Senate on the next legislative day during the so-called morning hour, the first two hours of a
session day following an adjournment of the Senate. Under Senate Rule VII, the resolutions are
laid before the Senate only after all other routine morning business, such as the introduction of
bills and resolutions, had been conducted. Morning business, in brief, is a component of the
morning hour. If consideration of S. Res. 4 was not concluded within the two-hour period, it
would be returned to the General Orders calendar unless the Senate agreed to a unanimous
consent request to continue debate or a Member offered a debatable motion to proceed to consider
S. Res. 4.74
With the adjournment of the Senate on January 3, S. Res. 4 met the one-day advance notice
requirements of Senate Rule V, having lain over one legislative day between the time of its
introduction and its presentment to the Senate the next legislative day (January 4). As Vice
President Nixon, who was presiding, stated on January 4: “The Chair lays [Senate Resolution 4]
before the Senate, which will be read for the information of the Senate.” Subsequently, Senators
discussed a variety of issues until Vice President Nixon declared: “The hour of 2 o’clock has
arrived and [the morning hour] is concluded; and the resolution [S. Res. 4] goes to the calendar,
under the rule.”75 (The Senate convened at noon on January 4).
Senator Javits then asked the Chair whether the Senate was proceeding under the Constitution.
Specifically he asked whether consideration of new chamber rules by majority vote was in order
notwithstanding inherited procedures “that inhibit that process?” Senator Javits further inquired:
“Is it not then proper that the 2 o’clock rule [the two-hour morning period] shall not apply in this
instance to this situation?” The Vice President replied: “Under the usual rule and the precedents
of the Senate, a resolution of this type is, at the conclusion of the morning hour, placed upon the
calendar, subject to being called up at a later time. However, it would be proper to request
72
Congressional Record, January 3, 1961, p. 13.
Ibid., p. 16. See footnote 53 for a detailed discussion of the “over, under the rule” procedure.
74
GOP leader Dirksen raised a parliamentary inquiry worth noting. He asked the Vice President: “Two independent
motions have been filed under [Senate Rule V]. Do they enjoy a status of priority, by virtue of the fact that the
Anderson motion was filed first; or is it a question of recognition when [each resolution is] called up?” The Vice
President responded: “Priority generally is determined by whichever Senator gets recognition when the motions are
called up.” Senator Dirksen further asked of the Vice President: “So the fact that one motion was offered prior to
another does not give it any preferred status when the matter is finally considered.” The response: “It does not.” The
Vice President did note that the majority leader receives priority of recognition.
75
Congressional Record, January 4, 1961, p. 82.
73
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unanimous consent to proceed without regard to that rule.”76 Senator Humphrey offered a motion
to proceed to the consideration of S. Res. 4.
Debate continued that day on filibuster reform, along with discussion of other matters. When the
day’s debate was largely concluded, Majority Leader Mansfield stated that there would be the
usual morning hour on January 5. He asked and eventually received unanimous consent that
“morning hour” would occur on January 5 despite the fact that he recessed rather than adjourned
the Senate. Senator Javits wanted to know if “such an arrangement” would “effect any change in
the pending business, which is the motion to take up these resolutions?” Senator Mansfield
explained that an adjournment would return the reform resolutions to the legislative calendar.
“But by taking a recess,” he said, “they will remain, in their present form, in order in the morning
hour.” Vice President Nixon responded: “That is correct.”77
What Constitutes “Opening Day”?
“Opening day” is a flexible and imprecise term. Consider these three points. First, it is the
calendar day on which the new Congress officially convenes following a biennial election.
Second, opening day in the view of various reform advocates is a timely and favorable period
under the Constitution for amending Senate rules by majority vote. Third, the Senate can remain
in the same legislative—or opening—day for many calendar days if the majority leader
successfully moves after each daily session to recess rather than moving to adjourn the Senate. In
short, opening day could extend over many days, weeks, months, or the entire two-year life of a
Congress.
Understandably, reform Senator Kuchel posed this question to Vice President Nixon: “Would the
Vice President rule that if we go over to a new legislative day, we will still have ‘the opening of a
new Congress’ before us, so that we can apply our rights under the Constitution?” Nixon
responded as follows: “It is the opinion of the Chair that so long as no substantive business is
undertaken by the Senate the opening of a new Congress still is in effect, so that the Senate would
be able to adopt its rules under the majority procedure which the Chair has described.”78 Nixon
also made clear that it would take unanimous consent to preserve this situation if other business
intervened. For example, Majority Leader Mansfield proposed to call up a privileged resolution
(H. Con. Res. 1) creating a joint committee to make the necessary arrangements for the
inauguration of the President-elect and Vice President-elect. Asked by Senate reformers if such an
action would change the procedural situation, Vice President Nixon said:
[I]t would change the situation in regard to the rules of the Senate, unless there is a
unanimous consent agreement entered into that it shall not do so. The present occupant of
the Chair must in frankness inform the Senate that for the first time in his 6 years of
service he is making a ruling from the Chair which is not entirely in accord with the
advice of the Parliamentarian, who is inclined to believe that because this resolution is in
the nature of a privileged resolution … it might not have that effect. However, the
occupant of the Chair does not dare to make that ruling. The ruling of the occupant of the
Chair, unless it is overruled by the Senate, is that, in the absence of an agreement, this
would change the situation.79
76
Ibid.
Ibid., p. 92.
78
Congressional Record, January 4, 1961, p. 74.
79
Ibid.
77
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The outcome: the majority leader withdrew the resolution. Clearly, the Vice President’s ruling
was important to the reformers. They did not want the intervention of “business”80 to mean that
they had inadvertently acquiesced in all the Senate’s rules from the previous Congress. If that
occurred, reform Senators would be bound by Rule XXII’s supermajority requirement to end
debate on proposals to amend new Senate rules by majority vote. Thus, various lawmakers
periodically asked the presiding officer whether certain actions of the Senate would constitute
substantive business. To reemphasize: the reformers did not want opponents to claim that their
failure to raise any objections to chamber proceedings meant that they had consented to having
the rules of the 86th Senate automatically carry over to the 87th Senate. (In recent years, it has
become common for the Senate to operate on the opening day of a new Congress pursuant to a
unanimous consent agreement obtained in the previous Congress.)
Continuing Body
Senator Richard Russell put this direct question to Vice President Nixon: “Does the Chair hold
that the provision [stating that Senate rules continue from one Congress to the next] is
unconstitutional?” Nixon said: “The Chair does.”81 However, the Vice President went on to
explain at some length his view of whether the Senate is a continuing body. He said:
The Chair in his [1957] advisory opinion did hold that the Senate was a continuing body
and that the rules of the Senate did continue except for any rule adopted by the Senate
which, in the opinion of the Chair, would inhibit the constitutional right of a majority of
the Members of the Senate to change its rules or adopt new rules at the beginning of a
new session of the Senate. This was the basis of the Chair’s advisory opinion. The
Chair’s opinion was not that it was not a continuing body and that it began with no rules
at all at the beginning of a new Congress. It is the opinion of the Chair, that, at the
beginning of each new session of Congress, the Senate does operate under and begins its
business with the rules adopted in previous sessions of the Senate; but the Chair holds
that any provisions of the rules previously adopted which would restrict what the Chair
considers to be the constitutional right of the majority of the Members of the Senate to
change Senate rules, or to adopt new rules, would not be applicable.82
Senator Russell observed that it was “most unusual” for the “Vice President, representing the
Executive, to select one rule of the Senate and hold it unconstitutional and to hold the other rules
constitutional.”83
A question by Senator Humphrey prompted a brief discussion of the previous question motion (a
non-debatable way to end debate, commonly used in the House). Humphrey asked the Vice
President how might debate be ended on a reform resolution, “by a motion to table or the
previous question?” Nixon responded: “That would be the Chair’s opinion.” To make sure he
heard the Vice President correctly, Senator Russell asked if the “previous question could be
applied on something brought up” under Senate rules? And Nixon said: “That would be the
Chair’s ruling, because, in the Chair’s opinion, the right of a majority of the Members of the
80
Senate precedents define what constitutes substantive business, such as the offering of an amendment, adoption of a
motion, or the Chair’s ruling on a point of order. See Floyd M. Riddick and Alan S. Frumin, Senate Procedure:
Precedents and Practices (Washington: U.S. Govt. Print. Off., 1992), pp. 1042-1046. Precedents also indicate what
does not constitute business.
81
Congressional Record, January 3, 1961, p. 11. See Aaron-Andrew P. Bruhl, “Burying the ‘Continuing Body” Theory
of the Senate,” Iowa Law Review, vol. 95, September 2010, pp. 1401-1465.
82
Ibid.
83
Ibid., p. 12.
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Senate to adopt its rules at the beginning of a session would include the right to bring the matter
to a vote by moving the previous question.” Perhaps taken aback by the Chair’s position, Senator
Russell asked if the “previous question ruling [would] be under Roberts Rules of Order?” The
Chair replied that Roberts Rules “would be applicable to the extent they might apply, but also
having in mind the previous procedures of the Senate.” Senator Russell then informed the Chair
that Roberts Rules of Order “provide for a two-thirds vote in moving the previous question.”84
The Vice President made it clear, however, that he would couple Roberts Rules of Order with
Jefferson’s Manual, which contains a section (XXXIV) on the previous question motion along
with a footnote that emphasizes that its use in modern times is to end debate. According to the
Vice President, a majority of Senators would have the right at the start of a new Congress to end
debate and “bring the matter [rule changes] to a vote by moving the previous question.”85
Throughout the several days of debate, proponents and opponents shared divergent opinions on
the continuing body doctrine. Both sides also acknowledged that the Senate has both continuous
and discontinuous features. For example, Senator Russell quoted part of the first paragraph of
Senate Rule XXV (naming the standing committees and identifying their jurisdiction), which
states that the panels “shall continue and have the power to act until their successors are
appointed.” A reform advocate, Senator Joseph Clark, cited the exact same rule only highlighting
different language therein: “The following standing committees shall be appointed at the
commencement of each Congress.”
Such disagreements between and among Senators reflected a change in the reformers’ strategy. In
the 1950s, reformers wanted to amend Rule XXII to reduce the potency of the filibuster by the
procedural artifice of adopting a new Senate rulebook every two years. In 1961 (and thereafter),
right from the outset, it was clear that the reformers’ principal goal was limited to adoption of a
new filibuster rule by majority vote at the start of a new Congress. To make their case, the
reformers relied on the rulemaking authority granted the Senate by the Constitution; the advisory
opinions of Vice President Nixon in 1957 and 1959; and the existing rules of the Senate, except
those that, in their judgment, foiled the majority’s will. On the latter point, the Vice President’s
position that all Senate rules applied except those that the Chair believed were unconstitutional
did not, as noted earlier, sit well with Senator Russell. He exclaimed:
In my judgment, either all of the rules go over or none of the rules go over. Either, under
the exercise of the rule-making power as provided in the Constitution, the Senate makes
its rules and, as a continuing body, the rules apply until changed in the manner described
therein, or else in the beginning of each Congress the Senate should adopt all new rules,
as is done in the House of Representatives. 86
In response, Senator Clark noted that, if the Vice President was unable to explain adequately his
rationale to Senator Russell, “I suppose this is one of those little things we had better agree to
disagree on.”87
84
Ibid., January 3, 1961, p. 12.
Ibid.
86
Ibid., January 9, 1961, p. 391.
87
Ibid, p. 392. In another context, Senator Kuchel stated that “the continuing nature of the Senate is irrelevant if its
rules conflict with the Constitution. To assume that the rules carry over because two-thirds of the Senate does is to
assume that the two-thirds carryover would always carry a majority in favor of the existing rules.” Ibid., January 4,
1961, p. 85.
85
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Procedural Strategy
During these proceedings, reform Senator Douglas outlined a procedural pathway to change
Senate rules at the opening of a new Congress.88 Worth underscoring is a key assumption of the
reformers: they believed they had the votes—at least a majority or close to it—and the support of
the Chair, Vice President Nixon, to accomplish their objective. They also believed, correctly, that
the new majority leader, Senator Mike Mansfield of Montana, would not act to frustrate the
reformers’ opening day parliamentary intentions. Their procedural plan included several of the
following key features:
88
At the beginning of a new Congress, a Member of the reform group would seek
recognition from the Chair. Upon receiving recognition, he would say: “Mr.
President, on behalf of the following Senators and myself, and in accordance
with Article I, Section 5 of the Constitution and the advisory rulings of the Chair
at the opening of the 85th and 86th Congresses, I send to the desk a resolution and
I ask that the Clerk read it.”
After the Clerk read the resolution changing Rule XXII, the Senator would ask
unanimous consent for its immediate consideration. If there was no objection, the
resolution would be on the floor for debate.
Most likely, there would be an objection. Senate rules require one legislative
day’s notice in writing to amend or modify a Senate rule. The Senator who
offered the motion would then address the Chair and send to the desk a motion in
writing to amend a Senate rule and ask that the written notice be read. [Recall
that the reformers’ prime focus was on Rule XXII; they saw no contradiction in
observing other Senate rules. They cited the earlier Nixon advisory opinions that
all Senate rules carried over, except those that have the practical effect of
denying a majority its constitutional right to determine its rules.]
Presumably, the Senate would adjourn, rather than recess, so the reformer’s
resolutions would comply with the one legislative day notice rule. [The Senate
majority leader, as noted previously, determines whether the Senate recesses or
adjourns at the end of a day.]
Reform Senators would need to object to any attempt to transact substantive
business or, alternatively, seek unanimous consent to provide that any such
business would not affect the status of “opening day” proceedings. The purpose
would be to ensure that the reformers do not waive any rights to amend Senate
rules on opening day by majority vote. “Opening day” could extend for an
indefinite period until it was terminated by a Senate adjournment.
Opponents could (a) defeat the motion to call up the resolution; (b) move to refer
the resolution to the Committee on Rules and Administration; (c) table the
reformers’ resolution, reaffirming the continuity of Senate rules; or (d) raise a
constitutional (or other) point of order against the resolution.
The constitutional challenge would likely come if a filibuster is launched against
either the motion to call up the resolution or on the resolution itself. After a
reasonable period of debate, a reform Senator would move to cut off debate,
perhaps even by moving the previous question. A constitutional point of order
against such a motion would likely be made by a Member of the opposition.
Ibid., January 5, 1961, pp. 213-237.
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Under well-established precedents, the Chair would submit such a point of order
to the Senate.
It is at this stage where things would become problematic for the reformers because they confront
again the aforementioned “Catch 22” situation. Unless they had 67 votes, the reformers would be
unable to invoke cloture to bring an end to prolonged discussion on the debatable constitutional
point of order. Long-standing Senate precedents obligate the Chair to submit constitutional points
of order to the Senate for its consideration. To be sure, the reformers would expect the Chair to
make favorable rulings—even if Senate precedents were broken—that facilitated their goal of
changing Rule XXII (or any other Senate rule for that matter) by majority vote. Fundamentally,
this meant a favorable ruling that supported the implementation of what has come to be called the
constitutional option.
For example, if the Chair ruled on his own authority in favor of the constitutional option—
specifically, that debate would end by majority vote on a motion to proceed to the reform
resolution, ignoring long-standing precedents that constitutional points of order are to be
submitted to and decided by the Senate—an appeal of that controversial decision would surely be
made by an opponent of change. The appeal is debatable, which would require cloture to end, but
the Chair might immediately recognize a reformer (perhaps the majority leader) to table the
appeal. If the tabling motion was successful, the Senate would have established a precedent that
arguably would terminate filibusters by majority vote on rule changes proposed at the start of a
new Congress. Accordingly, Senate reformers could close extended debate by majority vote on
both the motion to call up their reform resolution and on the resolution itself.
This parliamentary scenario highlights why favorable rulings from the Chair are among the key
elements that sometimes could advantage the “opening day” objectives of Senate reformers. By
contrast, if the Chair submitted the debatable constitutional point of order to the Senate—as
precedents and practices dictate—it would be unlikely that the reformers could muster the 67
votes required to invoke cloture to end the filibuster.
Ending Debate
On September 15, 27 Democratic Senators and 10 GOP Senators each issued nearly identical
press releases. Each release lamented the timing of bringing S. Res. 4 to the floor when
“adjournment fever” was high with Senators anxious to return home or to fulfill other
commitments. Majority Leader Mansfield responded by saying that the “leadership is not
permitted the luxury of considering rule XXII in a vacuum.”89 Several measures required
consideration, Mansfield said, before the scheduled end of the first session (September 27).
Besides the issue of timing, Senate reformers were unhappy because an unsupportive Vice
President Lyndon Johnson was presiding—so favorable rulings from the Chair aiding the
reformers could not be expected—and the lapse of the pretense of “opening day” meant, as
Senator Javits pointed out, that “a proposed change in rule XXII can be closed only by the votes
of two-thirds of the Members present and voting.”90
On Saturday, September 16, Majority Leader Mansfield moved that the Senate proceed to the
consideration of S. Res. 4 (providing for cloture by three-fifths of those voting, a quorum being
present), which the Committee on Rules and Administration reported without recommendation.
89
90
Ibid., September 16, 1961, p. 19829. The Democratic and GOP press releases can be found on p. 19830.
Ibid., p. 19831.
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(Recall that the Senate on January 10 had referred the resolution to that panel.) Senator Mansfield
explained to Senators why S. Res. 4 was not favorably reported. He said:
In my opinion, Senate Resolution 4 could not have been reported favorably by the Rules
Committee because the votes simply were not there for a favorable report. The Rules
Committee, despite what I think was the inherent opposition of many of its members,
nevertheless, in the interest of helping the leadership to keep its word, subordinated
personal feelings on this most important matter and allowed the resolution to be reported
without recommendation.91
With the motion to proceed to S. Res. 4 made, Senator Mansfield and Minority Leader Dirksen
filed cloture to end debate on the measure. Senator Mansfield also received assurances from the
Chair that, given the pendency of the cloture motion, “the Senate cannot consider any other
motion or measure except conference reports and other privileged matters, unless unanimous
consent is obtained.”92 On September 19, the Senate voted (37 yeas, 43 nays) not to invoke
cloture on the motion to proceed. Mansfield then moved immediately to table the motion to
consider S. Res. 4, which the Senate agreed to by a 47 to 35 vote. Senator Mansfield’s successful
tabling motion ended filibuster reform in the 87th Congress.
88th Congress (1963)
Political Context
The constitutional option once more came into play at the start of the 88th Congress. A bipartisan
group of change-oriented lawmakers tried again unsuccessfully to amend Rule XXII to permit
three-fifths of the Senators voting, a quorum being present, to invoke cloture. Senator Anderson
was the prime sponsor of this resolution (S. Res. 9), with Senators Humphrey and Kuchel
planning to propose a majority cloture resolution (S. Res. 10) as a complete substitute for S. Res.
9. Southern Senators, along with their allies in the chamber, conducted a 24-day filibuster that
blocked the liberals’ hope for change. Part of the reformers’ strategy was to try to persuade Vice
President Johnson to rule that, under the Constitution, dilatory debate on the proposed rules
change could be cut off by majority vote.
Specifically, the reformist Senators devised an optimistic strategy to change Rule XXII. Among
its basic features were the following:93
During the expected filibuster against revising Rule XXII, Senator Anderson
would move to end further debate on the pending motion by majority vote.
The Vice President would rule that the motion was in order because, under the
Constitution, debate on a proposed rules change at the start of a new Congress
could be terminated by majority vote.
No doubt a Senator, perhaps from the South, would appeal the ruling of the Vice
President.
A reform Senator would then offer a nondebatable motion to table the appeal,
which would be agreed to by majority vote. This vote would uphold the Chair’s
91
Ibid.
Ibid., p. 19838.
93
“Senate Cloture Rule,” Congressional Quarterly Almanac, 1963, vol. xix (Washington, D.C.: Congressional
Quarterly Inc., 1963), p. 375.
92
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ruling and create a new Senate precedent that would allow a majority at the
beginning of a new Congress to cut off debate on both the motion to proceed to a
rules change and on the rules revision itself.
With the precedent in place, a Senate majority would vote to end debate on the
pending motion to proceed and then on the rules change.
Further filibuster attempts by opponents of reforming Rule XXII could be ended
under the new majority vote precedent.
To focus the Senate’s attention on the rules debate and induce the membership to reach a decision
on the matter, Majority Leader Mansfield served notice “that vacancies on the Democratic policy
and steering committee will not be filled, nor assignments to the standing committees made, until
we have resolved the rules controversies. Further, I shall object to any committee meeting during
sessions of the Senate, because it seems to be quite unfair to transact business, whether legislative
or executive, in committees to which no new Member has been assigned.”94
Later in the debate, and to force a conclusion, Senator Mansfield informed lawmakers that the
Senate would meet six days a week; daily sessions, if necessary, would be lengthened; live
quorums would be called; and “Members should be prepared to cancel out-of-town engagements,
in order that we may quickly secure these quorums.”95 Once more, the key question was whether,
at the start of a new Congress, Senate rules—with their supermajority requirement for cloture—
automatically carried over from the previous Congress and governed consideration of proposals
to change Senate rules.
An “Opening Day” Accord
When the 88th Congress convened on January 9, Majority Leader Mansfield, in cooperation with
Minority Leader Dirksen, informed the Senate that “the rights of every Member of this body with
respect to the question of [cloture reform] which will be pending before the Senate next week will
be fully protected. [W]e have consulted the Parliamentarian and have been assured that that is the
case.” Senators Anderson and Humphrey also announced on that day that they would submit to
the Senate on January 14 a notice in writing of their intent to amend Rule XXII, and that they
would introduce their respective reform resolutions.
“Opening day” was kept alive from a parliamentary perspective through the majority leader’s
prerogative of deciding whether to recess or adjourn at the end of a Senate session. On January 9,
the Senate recessed, as it did on Thursday (January 10). When it reconvened on the calendar day
of January 14 (Monday)—the legislative day of January 9—Senators Anderson and Humphrey
introduced their respective reform resolutions and provided written notice of their intent to amend
Senate Rule XXII. Upon objection to the immediate consideration of the resolutions, the Chair
directed that resolutions lie over one legislative day as required by chamber rules. The Senate
adjourned on January 14, which ensured the resolutions’ compliance with the layover
requirement.
Beginning the next calendar day, the Senate recessed continuously—thus remaining in the
legislative day of January 15—until it adversely disposed of the motion to proceed to the
consideration of S. Res. 9 several weeks later (on February 7). By recessing, the motion to
proceed to S. Res. 9 automatically remained the pending business of the Senate until disposed of
or until the Senate displaced it with other business. As the Chair said in response to a
94
95
Congressional Record, vol. 109, January 28, 1963, p. 1181.
Ibid., February 5, 1963, p. 1788.
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parliamentary inquiry: “If the Senate adjourns tonight (January 15) without having taken any
action on the motion [to proceed], the motion will die. It will have to be taken up anew [although]
the motion [to proceed] can be renewed.”96
Calling Up Anderson’s Resolution (S. Res. 9)
On January 15, the Chair presented S. Res. 9 to the Senate during the morning hour. Senator
Russell then asked three questions (parliamentary inquiries) of Vice President Johnson to clarify
the procedural situation. The three questions were (1) “As I understand [chamber rules], this
matter [S. Res. 9] is laid down automatically as business coming over from yesterday?” (2) S.
Res. 9 “is now before the Senate and is a debatable issue? and (3) “If the resolution is debated
until 2 o’clock [the Senate convened at noon], it then will be the duty of the Chair to send the
resolution to the calendar?” Each question received an affirmative response from the Vice
President. Subsequently, Senator Willis Robertson of Virginia, a lead opponent of filibuster
reform, yielded time to Senator Humphrey, so he could offer without debate a complete substitute
amendment to S. Res. 9, which was the text of Humphrey’s S. Res. 10 (majority cloture). Senator
Robertson yielded time to Senator Humphrey with the understanding that he would not lose his
right to the floor.
With the expiration of the morning hour, Senator Anderson’s resolution was placed on the
Calendar of General Orders.97 He was prepared at some point to offer a motion to proceed to its
consideration. However, Senator Robertson held the floor and discussed at some length the
demerits of filibuster reform. Regularly, he deferred to his leader, Senator Russell of Georgia,
before he would yield to a colleague for a question or agree to a unanimous consent request
propounded by a reform Senator. For example, Senator Anderson interjected during Robertson’s
lengthy discourse, “I wish to move the adoption of [my] resolution.” Senator Robertson
responded that he was serving on a team led by Senator Russell. “He is my general; and,
therefore, I now yield to him.” In a display of collegiality, Senator Russell requested that his
southern colleague, without losing his right to the floor, yield to Senator Anderson so he could
offer his motion. Senator Anderson then stated: “I now move that the Senate consider my
resolution.”98 In response, the Chair stated: “The question is on agreeing to the motion of the
Senator from New Mexico that the Senate proceed to the consideration of his resolution.” That
motion remained pending for the next several weeks of debate on filibuster reform until it was
tabled.
Worth underscoring is the role of Majority Leader Mansfield in filibuster reform. Senator
Mansfield supported cloture reform, and provided the Anderson-led lawmakers with ample time
to make their case for reform, ensured parliamentary fairness to both sides, and made the issue of
extended debate the top priority of the Senate for a number of weeks. In brief, Senator Mansfield
made sure that the Senate’s focus was nearly always on changes to Senate rules, even to the
extent of preventing chamber consideration of legislative and executive business. To be sure, a
majority leader who opposes filibuster reform can erect parliamentary roadblocks—refusing to
schedule reform resolutions or moving to table them after minimal debate, for example—that
make revisions to the cloture rule difficult or impossible to accomplish.
96
Ibid., January 15, 1963, p. 370.
Once the resolution was laid before the Senate during the morning hour on January 15, and the morning hour then
expired, the resolution would (under current practice) be placed on the Calendar of General Orders, and not returned to
the specific place on the Calendar designated for matters that had gone over, under the rule.
98
Congressional Record, January 15, 1963, p. 369.
97
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The Continuing Body Debate
Senate debate was replete with references to the continuing body doctrine. Senator Robertson, for
example, went on at length to explain that the Senate has always been a continuing body. He cited
the Constitution, Senate rules, history, the intent of the Framers, the Federalist Papers, the
statements of eminent former Senators, Supreme Court decisions, and much more.99 The Senate
that organized in 1789, concluded Senator Robertson, “has never died.”100 In the view of Senator
Russell, the entire procedure of the reformers was “predicated on the theory that the Senate is not
a continuing body and has no rules to continue.”101 He went on to say:
There is no question that the Senate is a continuing body. All of us know that one-third of
the Members of the Senate are elected every 2 years, and two-thirds of the Members
carry over. That is what makes the Senate a continuing body, and until a few years ago no
one had the temerity to claim that the Senate is not a continuing body. 102
Senator Anderson argued that the continuing body thesis had no bearing on the right of the Senate
to amend its rules. “The pending question,” he said, “is not in any way predicated on the theory
that the Senate is a continuing body. The pending question is on agreeing to my motion to have
the Senate consider Senate Resolution 9.”103 GOP Senator Javits endorsed Anderson’s judgment:
“So whether one holds to the view that the Senate is a continuing body or does not hold to that
view, that question is not involved in the question of whether we have a right to change the rules”
at the start of a Congress by majority vote.104 Added Senator Humphrey:
The Anderson constitutional motion has nothing to do with whether or not the Senate is a
continuing body. The Senate has both continuous and discontinuous aspects. The
arguments for the carryover of rules comes down to this: since two-thirds of the Senators
carry over, the Senate is a continuous body; because the Senate is a continuous body, the
rules carry over. Striking the words ‘continuous body’ from this equation, the argument
reads: since two-thirds of the Senators carry over, the rules carry over. But this is a patent
non sequitur. It assumes that the carryover of two-thirds of the Senate always carries over
a majority in favor of the rules.105
Senator Humphrey also identified a number of discontinuous features of the Senate, such as that
all bills die at the end of a Congress and that the Senate selects its own officers every new Senate
even if there is a continuing majority. “If the Senate is a continuing body, why did we have to
reelect our beloved friend Carl Hayden” as President pro tempore?106
Clearly, there was a wide gap between the Russell and Anderson supporters on the continuity of
Senate rules. Senator Russell pointedly noted that the reformers stressed that they support all the
Senate’s rules, except Rule XXII. Moreover, said Russell, the reformers plan to close debate on S.
Res. 9 “in some fashion unknown to the Senate ... That is a most extraordinary situation.”
Replying to Senator Russell, Senator Anderson explained that the reformers “are willing to abide
by all the rules of the Senate which we believe to be constitutional; but we do not wish to abide
99
Ibid., pp. 362-378
Ibid., p. 362.
101
Ibid., January 28, 1963, p. 1222.
102
Ibid., Jan. 14, 1963, p. 184.
103
Ibid., Jan. 28, 1963, p. 1187.
104
Ibid., Jan. 31, 1963, p. 1500.
105
Ibid., p. 1511.
106
Ibid., January 14, 1963, p, 188.
100
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by rules which are not constitutional.” So, said Senator Russell, you are the judge of which
Senate rules are constitutional? “No,” stated Senator Anderson, but “I reserve the right to vote on
the question of constitutionality” when that question is submitted to the Senate.107
The Presiding Officer
Recall that the reformers hoped that Vice President Johnson would support the constitutional
option when, as planned, Senator Anderson would move to close debate by a simple majority on
the motion to proceed to S. Res. 9. It was not to be, however. On January 28, debate on the role of
the presiding officer was joined in a significant way. On that date, Senator Anderson, employing
the constitutional option, said: “I move under the Constitution that without further debate the
Chair submit the pending question [the motion to proceed to S. Res. 9] to the Senate for a
vote.”108 The phrasing of the motion was of strategic importance to the reformers. They knew that
Johnson would submit the constitutional question to the Senate, as he had stated earlier, but they
wanted the Vice President to submit the question for a vote with no debate. That was not to be,
however.
Once Anderson’s motion was read by the legislative clerk, Johnson emphasized that the
“Presiding Officer does not have the authority to rule on a constitutional point of order …
because the Vice President cannot make a decision for 100 Senators, unless he has previously
been granted the authority to make that decision.” The Vice President submitted the following
question to the Senate:
Does a majority of the Senate have the right under the Constitution to terminate debate at
the beginning of a session and proceed to an immediate vote on a rule change
notwithstanding the provisions of the existing Senate rules? 109
Johnson also informed the lawmakers that the “Senate is now operating under the rules as shown
in the Senate Manual,” a view generally endorsed by Senator Anderson but with some exceptions.
What no Senator should ignore, said Senator Anderson, “is that the first order of business after the
proper organization of the Senate was a motion to amend the Senate rules,” particularly Rule
XXII. “Is not that the situation this year? In this Congress? At this time? At this hour?”110
During the debate, reform Senator Kenneth Keating, R-NY, posed a number of questions to the
Chair. One question, restated in several different forms, was particularly telling. “If during the
debate on the [Anderson] motion it were to appear to the Chair that dilatory tactics are being
employed to prevent the Senate reaching a decision,” inquired Keating, “would the Chair have the
power to rescind the submission and render a ruling on the motion [subject to an appeal of the
Chair’s decision]?” Vice President Johnson then asked Senator Keating what Senate rule or
constitutional provision gives such authority to the Chair? In response, Keating stated that he had
no quarrel with the Chair submitting the motion to the Senate. He simply wanted to learn
“whether there is any way to bring the motion to a vote?” The Vice President noted: “Since 1803
every Presiding Officer of the Senate has held that constitutional questions must be submitted to
the Senate.” He further asked Senator Keating if he knew of any Senate rule granting presiding
107
Ibid., January 15, 1963, p. 369. Reformers understood the important role of precedents in the Senate but, so far as is
known, they did not consider using a precedential approach—the so-called “nuclear” option—to try to establish
majority cloture on measures or matters. Their focus was fixed on the idea that the Constitution grants a new Senate the
right to establish its own rules by majority vote.
108
Ibid., January 28, 1963, p. 1214.
109
Ibid.
110
Ibid.
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officers the authority to rule on constitutional questions? Majority Leader Mansfield interjected
that, if the Chair responded in the affirmative to Keating’s parliamentary inquiries, “it would in
effect mean that the Vice President, who is a member of the executive branch, could at his
discretion become dictator of the Senate.”111
Senator Keating continued to press the point. He rephrased his question and asked if the Presiding
Officer “knows of any way whereby debate on this subject can be terminated so long as there are
any Senators who wish to speak on the subject?” Johnson identified four ways: “first, it could be
terminated by majority vote; second, it could be terminated by a motion to table; third, it could be
terminated by an agreement among Senators; fourth, it could be determined in accordance with
the cloture rule, Rule XXII.”112 Senator Keating then inquired how a majority could cut off
debate, and Johnson responded: that is a matter the “100 Senators have within their control, and
which is not within the control of the Chair.”
Senator Keating then wanted to know if either the Constitution or Senate rules grant the Chair
“inherent power” to curb dilatory tactics. Johnson responded in the negative. Senator Russell of
Georgia, however, was far more direct than Johnson in rejecting Keating’s inherent power
suggestion. “I have never heard of a procedure so violative of every facet of democracy, of free
institutions, of our free government,” he said, “as to imply that the Vice President of the United
States has the right … to tell Senators to ‘Sit down; we are going to vote now. I am tired of
hearing all this debate. Clerk, call the roll. Senators, you will now vote.’”113
Senator Humphrey joined the debate. He contended that the whole argument was about “whether
a majority has the right to change the rules without being stymied by a cloture rule which permits
a minority to block a change in the rules.”114 It is most unusual, exclaimed Senator Humphrey,
that “we find ourselves in a situation in which we can debate a motion to end debate and can kill a
motion to end debate with debate.”115 Is there not, Humphrey asked, some point where dilatory
actions become unconstitutional “by reason of the debate, which has no further meaning in logic
or reasons, is it not then the unquestioned right of the members of the Senate—either through the
method suggested by Jefferson of moving the previous question or by calling again on the Vice
President to invoke the constitutional right of a majority to change the Senate rules—to bring the
matter to an end?”116 Senator Humphrey underscored that there was ample precedent for the Chair
to make a unilateral ruling. “On the basis of Jefferson’s Manual, a sound and solemn case can be
made for insisting that the Vice President hand down a ruling.” According to Jefferson,
The Senate have accordingly formed some rules for its own government; but those going
only to a few cases, they have referred to the decisions of their President, without debate
and without appeal, all questions of order arising either under their own rules, or, where
they have provided none.117
Senator Keating added: “There is danger in giving a Presiding Officer too much power—but there
is danger, too, in his having too little power. The Presiding Officer cannot be a passive observer
of tactics which make a mockery of debate.” He argued that the presiding officer must have
111
Ibid.
Ibid.
113
Ibid., p. 1219.
114
Ibid., p. 1229.
115
Ibid., p. 1232.
116
Ibid.
117
Ibid., p. 1230. Jefferson’s statement is from the preface to Jefferson’s Manual of Parliamentary Practice, prepared
by Vice President Thomas Jefferson between 1797 and 1801, when he was President of the Senate.
112
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implied authority under the Constitution “to bring a constitutional question to a vote in the
Senate.”118 Moreover, as suggested by various reformers, the Chair’s authority to end debate and
bring a matter to a vote would apply only at the start of a new Congress and only on matters
involving Senate rule changes.
Other Senators participated in the debate on the Vice President’s responsibility as presiding
officer. Senator Javits argued that the “Chair does not by law have to submit a constitutional
question to the Senate. Although the precedents may say so, we have shattered many
precedents.”119 GOP Senator Case of New Jersey urged the Vice President to “help the Senate
come to a conclusion which will permit a majority of Senators to exercise their constitutional
function.”120 The Vice President remained firm in his view that he would not “exercise authority
he does not believe he has merely because other men are unwilling to exercise the authority they
do have.”121 Majority Leader Mansfield emphasized that “what is the Senate’s business the Senate
will attend to and attend to alone.”122
Ending Debate
Ending debate on the motion to proceed to S. Res. 9 proved to be a lengthy process. Day after day
Senators voiced their strong support or opposition to the constitutional option. As the prolonged
debate continued, a number of Senators urged its end so the Senate could consider other business.
A close friend of the majority leader, GOP Senator George Aiken of Vermont, expressed a view
shared by a number of Members. “I consider the business and the defense of the country and our
relationships with other countries of vastly more importance [than filibuster reform]. As far as I
am concerned, I am ready to table the original motions and all motions pertaining to it and
proceed with the essential business of the Senate.”123 In response to this sentiment, and concern
about the public’s negative view of the proceedings, the chamber’s two party leaders (Mansfield
and Dirksen) propounded on January 30 the following unanimous consent agreement (UCA):124
Ordered, That on Thursday, January 31, 1963, at the conclusion of routine morning
business, the Senate resume consideration of the following question submitted on the 28 th
instant by the Vice President to the Senate for its decision, namely, “Does a majority of
the Senate have the right under the Constitution to terminate debate at the beginning of a
session and proceed to an immediate vote on a rule change notwithstanding the
provisions of the existing Senate rules?”
And that after debate of 3 hours, to be equally divided and controlled, respectively, by
Mr. Russell and Mr. Humphrey, the Senate proceed to vote on the issue of tabling the
said question. Furthermore, that there be a live quorum before the debate limitation starts
and after it ends.
Immediately, proponents and opponents of cloture reform sought to determine the consequences
and implications of the UCA if it was adopted or rejected. The Vice President noted that if the
UCA was adopted, the Senate would be agreeing to a specific time to vote on a motion to table
the question specified in the consent agreement. During the discussion, Senator Javits asked the
118
Ibid., January 31, 1963, p. 1506.
Ibid., January 30, 1963, p. 1411.
120
Ibid., p. 1412.
121
Ibid., January 31, 1963, p. 1506.
122
Ibid.
123
Ibid., January 30, 1963, p. 1413.
124
Ibid., p. 1407.
119
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Chair, if the question was tabled, “then it will no longer be before the Senate, and there will no
longer be debate on that question?” The Vice President responded: “The Chair has twice ruled or
twice stated ... that the Senate would revert to the original question, which is the motion to
proceed to the consideration of Senate Resolution 9.” On the other hand, remarked Senator Javits,
if the tabling motion is not rejected, “debate would continue ... upon the constitutional question
framed by the Chair and put to the Senate. Is that correct?” Johnson’s response: “That would be
the question. Senators might discuss many topics, but that would be the question.”125 In the end,
no Senator objected to the leadership-crafted UCA.
The next day, January 31, the crucial vote occurred on the Vice President’s question contained in
the UCA. After three hours of debate, the determination of a quorum, and a request for the yeas
and nays, the Senate voted 53 to 42 to table the question submitted by the Vice President. The
Vice President then stated: “The question now recurs on the motion submitted on January 15 by
the Senator from New Mexico that the Senate proceed to the consideration of Senate Resolution 9
to amend the cloture rule of the Senate.”126
Debate on filibuster reform continued into early February. Senator Mansfield expressed doubt
about the Senate ever reaching a direct vote on S. Res. 9. If the Senate did adopt the motion to
proceed, there were simply too many dilatory motions that opponents could use to prevent a vote
on S. Res. 9 itself, such as motions to refer with diverse instructions, to postpone to various days,
or to amend S. Res. 9, not to mention raising numerous points of order, calling for live quorums,
and proposing motions to adjourn.
To expedite action and to further test the sentiment of Senators, Majority Leader Mansfield
announced on February 5 that he would offer a motion the next day to table the motion to proceed
to S. Res. 9. (Senator Mansfield also announced that he would vote against his own motion to
table the pending question). The majority leader anticipated the failure of his tabling motion
because many opponents of filibuster reform, such as Senator Russell, stated before the vote that
they would oppose Mansfield’s motion because it would cut off debate. Accordingly, Senator
Mansfield also introduced a cloture motion on February 5 to end debate on the motion to proceed
to S. Res. 9. He outlined his rationale for cloture: “If the motion for cloture does not receive
approximately 60 votes in its favor—that the first cloture motion will mark the end of this debate,
so far as I am concerned; and I will then make a motion to adjourn.” If the cloture vote is “fairly
close—say 60 or more—it will be my intention to offer a second motion on cloture” to end debate
on the motion to proceed to S. Res. 9.127
On February 6, as Senator Mansfield expected, his tabling motion failed by a vote of 5 yeas and
92 nays.128 The next day, the vote on cloture occurred to close debate on the motion to proceed to
S. Res. 9. Before the vote, Senator Mansfield reiterated that “if the vote in favor of cloture is less
than 60, I shall immediately, upon the conclusion of the vote, move that the Senate adjourn until
Monday.” The vote for cloture was 54 ayes and 42 nays. After the Chair announced the defeat of
the cloture motion, Senator Mansfield immediately moved that the Senate adjourn; he asked for
the yeas and nays on that question. The Senate voted 64 to 33 for adjournment, ending filibuster
125
Ibid., p. 1408.
Ibid., p. 1516.
127
Ibid., February 5, 1963, pp. 1787-1788.
128
Ibid., February 6, 1963, p. 1921.
126
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reform for the 88th Congress.129 (Motions to proceed to a matter, such as S. Res. 9, die with an
adjournment of the Senate.)
A New Procedural Tactic
During debate on February 5, two reform Senators spoke about a matter that is relevant for the
contemporary Senate. They wondered if a new Senate precedent was being established:
filibustering the motion to proceed. Senator Humphrey declared that it is “most unusual for any
Senator to object to a motion to consider in this body.”130 Normal procedure, he said, is to adopt
the motion to proceed and then debate the substance of the measure. As he stated: “To take up a
motion or a bill in a parliament or the Congress is as normal as the Fourth of July, and to deny
people the opportunity even to take up a bill for debate and consideration is unusual, abnormal,
and the burden of proof rests upon those who take that position.” Senator Anderson elaborated on
Humphrey’s observations. In 1953, 1957, and 1959, said Anderson, Members who opposed the
reformers did not prevent a debate on the substance of their proposals. “Now we have established
a precedent in this Congress whereby every time the majority leader moves to proceed to the
consideration of a measure, an attempt will be to engage in a 2- to 3-week filibuster. This
procedure will come back to plague the Senate.”131
89th Congress (1965)
Political Context
A bipartisan group of reform-minded Senators, as in previous Congresses, proposed to change
Rule XXII by employing the constitutional option. They were unsuccessful. After only three
session days of intermittent consideration, the two main reform resolutions were referred to the
Committee on Rules and Administration by unanimous consent. The panel reported the
resolutions adversely, ending the effort to revise Rule XXII.
Two factors largely changed the reform dynamic. First, the Senate demonstrated in 1964 that it
could mobilize the two-thirds vote (71 to 29) required to invoke cloture on the landmark Civil
Rights Act of that year.132 It was the first time that cloture was invoked on a civil rights measure.
Senate reformers recognized that they could muster cloture on civil rights legislation—an issue
that energized their earlier attempts at filibuster reform. As a result, the intensity for revising Rule
XXII was not as strong as in other years. Second, Lyndon Johnson was now President, and
Senators wanted to focus on considering the “Great Society” program of the new administration.
Lawmakers did not want to delay action on the President’s agenda—such as passage of Medicare,
the Voting Rights Act, or the Elementary and Secondary Education Act—with a lengthy and
divisive filibuster reform fight.
129
Ibid., February 7, 1963, p. 2058.
Ibid., February 5, 1963, p. 1790.
131
Ibid., p. 1795. Both the Anderson and second Humphrey quotes are found on this page.
132
Among the many factors that contributed to passage of the landmark civil rights bill was the large Democratic
majority in the Senate (67D, 33R) and the procedural and political skills of bipartisan leaders. See Charles and Barbara
Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act (Cabin John, Md.: Seven Locks Press,
1985).
130
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Calling Up the Reform Resolutions
On opening day, January 4, Senator Anderson provided notice to all Senators that he would soon
submit a resolution to amend Rule XXII. Immediately, Senator Javits wanted assurances from
Anderson that “no business will intervene, before the proposed action is taken [introduction of
Anderson’s resolution], that will prejudice the legal basis for which we have always contended
for this move.” Senator Anderson replied that he had discussed the question with the majority
leader, the minority leader, and Senator Russell, and all agreed that any subsequent action on
Senate business would not prejudice the reformers’ aims. As Senator Russell, the anti-reform
leader, stated: “I know that the [Anderson resolution] will be submitted. I do not propose to
quibble over the time of its submission. The question will be settled on the floor of the Senate at
the appropriate time.”133
Two days later, Senator Anderson introduced his resolution (S. Res. 6) providing for cloture by
three-fifths of the Senators voting, a quorum being present, and asked for its immediate
consideration. When GOP leader Dirksen objected, the presiding officer (the President pro
tempore) stated that S. Res. 6 would go over, under the rule. Senator Anderson immediately sent
to the desk his written notice of his motion to amend Rule XXII. Senator Douglas of Illinois also
introduced during the morning hour S. Res. 8 providing for majority cloture. When Senator
Douglas asked for the immediate consideration of his resolution, there was an objection. He then
submitted, as required under chamber rules, a notice of his intent to amend Senate rules.
On January 7, as one of the first orders of business, Majority Leader Mansfield clarified the intent
of a consent agreement entered into the previous day. He stated that the introduction and referral
of measures and the transaction of routine business during the morning hour would not prejudice
“the rights of any Senator as regards the parliamentary situation affecting any proposed
amendment to Senate rules.”134 Later in the morning hour, the President pro tempore stated that S.
Res. 6 automatically “comes over from the previous day.” Immediately, Senator Dirksen moved
that S. Res. 6 be referred to the Committee on Rules and Administration. Senator Douglas asked
Senator Dirksen, before he began to speak, if he could offer his proposal. Senator Dirksen refused
on the ground that he wanted to focus exclusively on S. Res. 6. A period of debate then ensued
between opponents and proponents of filibuster reform. When Senator Anderson was recognized
to speak on the subject, he offered an amendment to Dirksen’s motion to commit:
That the resolution be referred to the Committee on Rules and Administration, which
shall make its report on said resolution and any other proposed amendments of rule XXII
of the Senate on January 25, 1965, and all rights in existence at the opening of the
Congress shall be deemed preserved.135
Considerable debate followed as to the intent of Anderson’s motion. Senator Russell raised two
points of order against it. First, he argued that instructions to committees “cannot apply to
anything except a measure before the Senate.” Anderson’s motion “aims to instruct the committee
with respect to resolutions that have not yet been offered,” which is contrary to Senate rules and
precedents. Second, Senator Russell contended that language in Anderson’s motion—“all rights
in existence at the opening of the Congress shall be preserved”—is not in order because it is
133
Congressional Record, vol. 111, January 4, 1965, p. 13.
Ibid., January 7, 1965, p. 364.
135
Ibid., p. 401.
134
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instructing the Senate itself. Senator Russell wanted to know, he said, how the Chair construes the
clause—“with respect to preserving constitutional rights.”136
President pro tempore Carl Hayden of Arizona ruled the instruction to the committee in order but
not the instruction to the Senate itself. Specifically, Hayden said, “The first part of the resolution
were instructions to the committee [and in order] and the last part is instructions to the Senators
and not in order.”137 He then said: “The hour of 2 o’clock having expired, and the morning hour
having expired, the resolution under consideration now goes to the calendar under the uniform
rules of the Senate.” Senator Mansfield then asked if a motion to call up S. Res. 6 from the
calendar was in order. The Chair responded that the majority leader was correct. Without delay,
Senator Anderson said: “Mr. President, I move that the Senate proceed to the consideration of
Senate Resolution 6.” Republican leader Dirksen noted that the motion to proceed is debatable.
After the Senate proceeded to a matter unrelated to filibuster reform, several Senators engaged in
a discussion of the Chair’s earlier ruling. For example, Senator Douglas explained that he and
other Senators could not hear the President pro tempore’s ruling because he spoke in an inaudible
voice. If he had heard the decision, said Senator Douglas, he would have appealed the ruling
because it implied the end of “opening day.” Because “this matter is getting a little out of hand,”
the majority leader recessed the Senate until the next day (January 8).
Preserving “Opening Day”
Controversy surrounding the Chair’s inaudible ruling continued on January 8. That ruling upheld
a point of order that ostensibly undermined the idea that the reformers’ “opening day” rights are
preserved during subsequent session days even if other business intervenes. Senator Russell
pointed out that various lawmakers and floor staff heard the decision, no reform Senator appealed
the ruling of the Chair, and, therefore, “there is no question in my mind that the ruling is
binding.”138 Senator Douglas called the ruling unfair and said that reform proponents would have
appealed the ruling if they had heard it. He added:
If the Senate appoints committees during this time [referring to Anderson’s reporting
deadline of January 25 for Rules and Administration], it can be maintained with a great
deal of strength that we have adopted the previous rules in toto, including Rule XXII and
that therefore a motion to change Rule XXII is not in order.139
Senator Douglas then asked the Chair: if the Senate is organized would the advocates of reform
be viewed as tacitly accepting all of the Senate’s rules, including Rule XXII? The Chair
responded: “The parliamentarian advises me that the Senator will not lose any of his
constitutional rights, and furthermore if amendments must be made to rules, they can be made at
any time.”140 Senator Douglas advised his reform colleagues not to view as binding the Chair’s
ruling with respect to their opening day constitutional rights. Senator Russell argued to the
contrary. He declaimed that “there is no doubt that the ruling of the Chair is the ruling of the
Senate as of this hour.”141
136
Ibid., pp. 401-403.
Ibid., p. 403.
138
Ibid., January 8, 1965, p. 452. Also see E. W. Kenworthy, “Unheard Ruling Confuses Senate,” New York Times,
January 8, 1965, p. 30. By unanimous consent, the Dirksen and Anderson motions were withdrawn.
139
Ibid., p. 405.
140
Ibid., p. 406.
141
Ibid., p. 450.
137
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In the end, the outcome of the discussion was murky, but it appeared that the Chair’s inaudible (to
some Senators and parliamentary staff) ruling was not overturned. In the judgment of Senator
Javits, “we are discussing a matter of great importance in terms of whether Senators hear the
ruling or not, so that they can appeal. But I see no permanent jeopardy or loss of rights which has
been done so far.”142 The Senate recessed, ending that session day.
Ending Debate
On January 11, the Senate resumed consideration of Senator Anderson’s pending motion to call
up S. Res. 6. Majority Leader Mansfield received unanimous consent to refer the Anderson and
Douglas (S. Res. 8) resolutions to the Committee on Rules and Administration with instructions
“to make its report on said resolutions to the Senate on March 9, 1965.”143 Senator Anderson
asked if the majority leader’s request “would protect all existing rights?” Senator Mansfield
responded: “Yes, of course.” Asked later what accounted for senatorial agreement to Mansfield’s
unanimous consent request, Senator Anderson said, “We just got reasonable, all of us.”144 The
committee issued a negative report on the two resolutions; the Senate did not resume
consideration of either resolution in the 89th Congress.
90th Congress (1967)
Political Context
A bipartisan group of liberal and moderate Senators, led by George McGovern, D-SD, and
Thruston Morton, R-KY, proposed to amend Rule XXII by permitting cloture by three-fifths—
rather than two-thirds—of those voting, a quorum being present. The reformers were optimistic
that conditions were favorable for change because Vice President Hubert Humphrey would be
presiding—recall that as a Senator he was a strong advocate of filibuster reform—and these
Members believed a majority of their colleagues were sympathetic to their cause. Their effort was
unsuccessful. Nonetheless, what made this attempt noteworthy is that a parliamentary procedure
was devised—a “compound motion”—that might permit Rule XXII to be amended by majority
vote at the beginning of a Congress.
The reformers met soon after the November 1966 elections to plan their strategy. Similarly,
Senator Russell, the opposition leader, convened meetings with his group. When the new Senate
opened on January 10, Majority Leader Mansfield stated that he would follow established
practice: “no bills or resolutions will be introduced and no routine business will be transacted
prior to the President’s delivery tonight” of the State of the Union message. Two reform Senators
then sought and received assurances from the majority leader and Vice President Humphrey that
the rights of every Senator with respect to amending Rule XXII would be protected.
Once more, reformers wanted to establish the principle that each new Congress could adopt its
own rules by majority vote, unfettered by entrenched rules of previous Congresses. As a result,
reform Senators regularly sought assurances that revisions of Senate rules by majority vote at the
start of a new Congress would not be nullified by the transaction or intervention of legislative
business. Otherwise, such a development might give rise to points of order that the “opening day”
142
Ibid., pp. 452-453.
Ibid., January 11, 1965, p. 470.
144
“Senate Cloture Rule,” Congressional Quarterly Almanac, 1965. vol. xxi (Washington, D.C.: Congressional
Quarterly Inc., 1966), p. 592.
143
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window had closed and reformers had tacitly accepted chamber rules, including Rule XXII,
inherited from previous Congresses. The reformers also wanted to terminate filibusters on rule
changes without using Rule XXII and its supermajority requirements. Their well-settled
approach: emphasize that Article I, Section 5, of the Constitution takes precedence over Rule
XXII and allows a majority both to end prolonged debate and to revise Senate rules. Senator
Russell, the leader of the opposition, viewed the matter differently: “I do not understand what
rights could be prejud
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