As discussed in a prior post, Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII) was unconstitutional.
On July 20, 2012, the defendants provided the U.S. District Court for the District of Colombia and the plaintiffs with a history of Rule XXII as part of the motion to dismiss the complaint on jurisdictional grounds. This post will summarize that historical record.
Majority Ability To Halt Debate, 1789-1806
From the First Session of the First Congress in 1789 through 1806, the Senate provided for a motion for the “previous question,” which permitted a majority to determine whether a matter should be immediately considered on the merits or postponed.
No Ability To Halt Debate, 1806-1917
From 1806 through 1917, there was no mechanism for the Senate to close debate over the objection of a single Senator who wished to speak. There, however, was only one instance in the first half of t he 19th century when a minority of the Senators sought to block the Senate’s consideration of a matter on the merits. That concerned a resolution to expunge from the body’s journal its 1834 vote to censure President Andrew Jackson, but that attempt failed after the opponents had “talked and talked.”
In the early 20th century there was increased use, intensity and success of what came to be called filibusters. In 1917 such a filibuster prevented Senate passage of a bill authorizing President Woodrow Wilson to arm American merchant ships.
Adoption of Cloture Rule, 1917
Immediately after the blockage of the bill to authorize arming American merchant ships, the Senate held a special session, and on March 8, 1917, adopted a cloture rule. Under that rule, whenever 16 Senators moved to close debate on any pending measure, after a two-day hiatus, the Senate would vote on the question, “Is it the sense of the Senate that the debate should be brought to a close?” If that motion were approved by two-thirds of those voting, the underlying measure would be the pending business until it was voted up or down. Such a vote would come after each Senator had spoken for up to one hour or waived that right. This rule also restricted amendments and prohibited dilatory motions and non-germane amendments.
Experience with the Cloture Rule, 1917-1949
Although cloture was invoked four times between 1917 and 1927, the rule was circumvented by filibustering a procedural motion.
Amending the Cloture Rule, 1949
In 1949 the rule was amended to cover motions and other pending matters, but the number of votes necessary to invoke cloture was increased from two-thirds of those voting to two-thirds of the total Senate membership. The rule also continued to exclude resolutions to amend the rules.
Experience with the Amended Cloture Rule, 1949-1959
During this period filibusters were used to block civil rights legislation. As a result, public pressure increased to change the rule.
Amending the Cloture Rule, 1959
In 1959 the rule was amended to reduce the number of votes necessary to invoke cloture from two-thirds of the total Senate membership to two-thirds of those voting. In addition, the rule was expanded to cover motions to proceed to amend the Senate rules and expressed the Senate’s understanding that its rules continued from one Congress to the next.
Amending the Cloture Rule, 1975
In 1975, the Senate again amended the rule to change the number of votes to invoke cloture from two-thirds of those voting to three-fifths of the Senate membership (now 60 of 100) while maintaining a two-thirds vote of those present and voting to change the rules.
Experience with the Amended Cloture Rule, 1975-Present
Since 1975 there has been an increasing number of cloture votes and various proposals to change the rule regarding filibusters. But no additional changes in the rule have been adopted.
 Memorandum of Points and Authorities in Support of Defendants’ Motion To Dismiss at 3-11, Common Cause v. Biden, No. 12-cv-0075 (D.D.C. July 20, 2012). Subsequent posts will discuss (a) the plaintiffs’ legal argument as to why Senate Rules XII and V are unconstitutional; and (b) the jurisdictional issues.
 Plaintiffs have pointed out that at the time of the adoption of the Constitution in 1789, filibusters had been prevented in the English Parliament by its adoption in 1604 of the previous question motion and in the Second Continental Congress by its adoption of the same rule for such a motion. (Brief of Plaintiffs in Opposition to Motion To Dismiss at 9-10, Common Cause v. Biden, No. 12-cv-0775 (D.D.C. Aug. 27, 2012).)
 The plaintiffs say that the Senate’s elimination of the previous question rule in 1806 was a “quirk.” Its elimination apparently was due to comments by Vice President Aaron Burr that the Senate rules had become too complicated and that the previous question motion could be eliminated because it had only been used once in his four years acting as President of the Senate. (Id. at 11.)
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