The most important vote that the Republican Senate takes next year may be a procedural vote.  If the Senate continues last session’s cloture rule, Senate Democrats will be given the power to keep the Republican agenda off President Obama’s desk.

But if senators return to the earlier version of the Senate cloture rule that was in place until the early 1970s, they will be able to put legislation on President Obama’s desk that would be popular with the Republican base in particular and with the majority of the American people as well.

The filibuster was created (at Thomas Jefferson’s behest) when the motion to “call the previous question” was struck from Senate rules, leaving no way to force a final vote on legislation.  A cloture rule was added in 1917 that permitted two thirds of senators present and voting to draw debate to a close.  Although in the 1950s senators experimented with requiring two thirds of all senators to support cloture, Lyndon Johnson’s Senate ultimately returned to the more workable present and voting standard. 

Until the early 1970s, ending a filibuster required a supermajority among senators present and voting.  Since then, ending a filibuster (cloture) has required the support of 60 of 100 senators, regardless of how many are absent.  

Late in 2013 Harry Reid and the Senate Democrats amended the 60-vote rule so that a simple majority could end debate on a judicial nominee.  They did so in order to take away Republican leverage with the executive branch.

Reid opened the filibuster rule to amendment; Senate Republicans should continue the process.  Returning to the old present and voting cloture rule, as we propose, would not only give the Republican Senate a chance to succeed, but also improve the functioning of the U.S. government and add drama to Senate debates.

Purpose of the Filibuster

To understand what ought to be done with the filibuster, it is important to understand the filibuster’s advantages and limits.  Consider the following two cases: 

• Bill 1: A bill that will provide small and modest benefits to a majority of senators, while imposing extremely high costs for a minority.  Victory by the majority would reduce overall welfare. 
• Bill 2: A bill that will provide large and substantial benefits to a majority while imposing small and modest costs on minority.  Victory by the majority would increase overall welfare. 

A well-designed filibuster can allow the minority to protect itself from Bill 1 without sacrificing the interests of the majority in the case of Bill 2. 

We do not currently have such a well-designed filibuster.  The requirement of 60 votes for cloture lets a minority of 41 or more win in both cases, blocking a bill that should be blocked (Bill 1) but also a bill that shouldn’t (Bill 2).  Harry Reid’s rule change, and those like it, would pass a bill that should not be passed (Bill 1), which is similarly suboptimal. 

Under current rules the minority need not bear any costs to block legislation – the majority must achieve 60 votes, or the filibuster stands.  By bringing back the war of attrition through a present and voting cloture requirement, the filibuster could be rendered informative – it could improve welfare by differentiating Bill 1 cases from Bill 2 cases, and it would force those seeking to block legislation to argue their case. 

When the minority cared much more about the policy in question, it would be able to block a vote (so Bill 1 would be defeated).  When the majority cared much more about the policy in question, it would prevail, because the minority would eventually back out of the war of attrition (so Bill 2 would pass). 

The Informational Value of the Filibuster

Another advantage of returning to the old filibuster rule is that it would bring drama to Senate debates, permitting them to inform the American people.  The ever-present threat of a lost cloture vote, three fifths among those present and voting, forces minority members to be ever vigilant, potentially around the clock, for fear of a surprise vote called by the majority. 

Frank Capra's 1939 classic Mr. Smith Goes to Washington illustrates the potential informational value of battle of attrition filibusters.  Jefferson Smith's willingness to engage in an individual filibuster even in the face of broad opposition signaled the credibility of his case, and ultimately prevented the expulsion vote Smith (played by Jimmy Stewart) opposed. 

Bringing back present and voting cloture can preserve the filibuster as a guarantor of minority rights while allowing the majority to advance its most critical legislative priorities.  By restoring this hallowed Senate rule, the Republican Senate would save itself from almost certain failure.

Jesse Richman is associate professor of political science at Old Dominion University.  His research on legislative politics has appeared in the American Political Science Review, Legislative Studies Quarterly, and State Politics and Policy Quarterly, among other journals.  With his father (Howard) and grandfather (Raymond), he is coauthor of the 2008 book Trading Away Our Future and the 2014 book Balanced Trade.