Cloture
From dKosopedia
In parliamentary procedure, cloture (pr: KLO-cher) (also called closure) is a motion or process aimed at bringing debate to a quick end.
The procedure originated in the French National Assembly, from which the name (originally clôture) in French is taken. It was introduced into the United Kingdom Parliament by William Gladstone to overcome the obstruction of the Irish nationalist party and was made permanent in 1887. It was subsequently adopted by the United States Senate and other legislatures.
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History
In the United States a similar procedure was adopted in the United States Senate in 1917 in response to the actions of isolationist senators who attempted to talk out, or filibuster, a bill to arm U.S. merchant ships. President Woodrow Wilson urged the Senate to change its rules to thwart what he called a "little group of willful men", to which the Senate responded by introducing cloture in the form of Rule 22.
This originally required a supermajority of two-thirds of all senators (i.e. 67 out of 100). However, it proved very difficult to achieve this; the Senate tried eleven times between 1927 and 1962 to invoke cloture but failed each time. It was particularly heavily used by senators from Southern states to block civil rights legislation. In 1975, the supermajority was reduced to three-fifths ( 60 out of 100). Some senators wanted to reduce it to a simple majority (51 out of 100) but this was rejected, as it would greatly diminish the ability of the minority to check the majority.
The procedure for "invoking cloture," or ending a filibuster, is as follows:
- A minimum of sixteen senators must sign a petition for cloture.
- The petition may be presented by interrupting another Senator's speech.
- The clerk reads the petition.
- The cloture petition is ignored for one full day during which the Senate is sitting (If the petition is filed on a Friday, it is ignored until Tuesday, assuming that the Senate did not sit on Saturday or Sunday.)
- On the second calendar day during which the Senate sits after the presentation of the petition, after the Senate has been sitting for one hour, a "quorum call" is undertaken to ensure that a majority of the Senators are present.
- The President or President pro tempore presents the petition.
- The Senate votes on the petition; three-fifths of the whole number of Senators (sixty with no vacancies) is the required majority; however, when cloture is invoked on a question of changing the rules of the Senate, two-thirds of the Senators voting (not necessarily two-thirds of all Senators) is the requisite majority.
After cloture has been invoked, the following restrictions apply:
- No more than thirty hours of debate may occur.
- No Senator may speak for more than one hour.
- No amendments may be moved unless they were filed on the day in between the presentation of the petition and the actual cloture vote.
- All amendments must be relevant to the debate.
- Certain debates on procedure are not permissible.
- The presiding officer gains additional power in controlling debate.
- No other matters may be considered until the question upon which cloture was invoked is disposed of.
Cloture does not automatically stop all delaying tactics, as it still permits up to 100 hours to debate any amendment made to a bill. This has led to opponents loading a bill up with amendments before cloture, a tactic devised by the late Senator James Allen.
Judicial Rulings Addressing Senate Rules and Jurisdiction to contest construction
In 1892, United States Supreme Court issued the following Opinion discussing the "Power and Duties of the Houses" and specifically dealing with the constitutional definition of a "quorum" to do business along with how the presence of a majority is to be determined and defining the power of constitutional limitations for determining the "Rules of Proceedings" in the United States Senate and United States House of Representatives, also known as the legislative branch and / or United States Congress.
The Court Stated as Follows....
"[N]either do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. Id. (statement of Sen. Anderson) (quoting) United States v. Ballin, 144 U.S. 1 (1892)"
"The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights,"
Judicial redressability by a citizen on the creation of Cloture as a Senate Rule is stated as follows .....
" As the construction to be given to the rules affects persons other than members of the Senate, the question presented is of necessity a judicial one." United States v. Smith, 286 U.S. 6 (1932)
Relevance of United States v. Ballin in relation to "Cloture" Senate Rule XXII and Rule V
Since the Creation of Senate Rule XXII controlled by Rule V in the United States Senate, The legislative process has had disagreements in passage of important legislation. The cloture rule has changed since 1917 causing further delay and failed legislation that would otherwise have passed under the Constitutional method as outlined in Ballin, supra.
In 1957, Vice President Nixon issued and advisory Opinion on this very issue referring the Senate to resort Back to passing legislation by a simple majority of a Constitutional quorum present. Prior to 1957, The U.S. Senate changed the Cloture rule to require 67 Senate Votes to pass legislation (more than 2/3 of the body) with the entire Body of the Senate that currently must be Present for a quorum (at that time the senate varied between 96-98 members). During this time frame the Unconstitutionality of cloture came to exist as the Court Stated in it's opinion in Ballin, supra the following Key Notes of Case Law,
1)The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights.
2)The Constitution provides that "a majority of each [house] shall constitute a quorum to do business." In other words, when a majority are present the house in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single member or fraction of the majority present. "All that the Constitution requires is the presence of a majority, and when that majority are present, the power of the house arises."
3) The constitutions of this state and the United States declare that a majority shall be a quorum to do business, but a majority of that quorum are sufficient to decide the most important question."
Therefore, When the Senate created the Cloture Rule in 1917, later redefining the rule to stipulate that the Cloture rule to require 67 Senate Votes to pass legislation (more than 2/3 of the body) and with the entire Body of the Senate that must be Present for a quorum (at that time the senate varied between 96-98 members), It then Violated the United State Constitution ignoring the constitutional restraints or violating fundamental rights of the Supreme Law of the Land, It's Constitution. In return the Citizens of the United State have been directly impacted by this unconstitutional act clearly outlined in the decision of the United States Supreme Court rendered in United States v. Ballin, 144 U.S. 1., supra as stated above being that,
1. The United States Senate Can Not create Rules that go above and beyond the restraints of the Constitution in the Power and Duties of the rule making process where the court held "The constitutions of this state and the United States declare that a majority shall be a quorum to do business, but a majority of that quorum are sufficient to decide the most important question.", however, The Senate created a rule "Cloture" also known as Rule XXII stating that a "supermajority" of 67 votes must be required to end debate of a Filibuster, in order for legislation to carry forward and be passed when cloture (rule XXII) was invoked.
In Addition, rule XXII stated that all members of the Senate must be present for a quorum and 67 of them must vote in the affirmative (yea) to pass the bill, however the Supreme Court stated as Follows defining the constitutional definition of a quorum that the Senate ignored in the construction of rule XXII thereby violating the fundamentals of the constitutional restraints as defined in Ballin, supra. being a simple majority of the following definition of a constitutional quorum being present, not 67 votes with the entire body present,
2. As stated by the United States Supreme Court in "Ballin, supra" The court defined that a Constitutional quorum is 2/3 of the Senate body present, Not 100% constitutes a quorum and "All that the Constitution requires is the presence of a majority, and when that majority are present, the power of the house arises."
In other words, The Senate Body contains 100 members in Present Day, therefore 67 Senators must be Present to constitute a quorum, and When those 67 member out of the 100 Senators in the Unites States Senate are Present, the Senate is able to proceed in conducting business and pass legislation.
Herealso, with those 67 senators present, only a "Simple Majority" need to vote in the affirmative (yeas) in order to pass legislation as clearly defined in the Ballin decision of 1892. In other words, only 67 Senators need to be Present out of 100 members to conduct Business and of those 67, only 34 Senators (yeas) over 33 (yeas)need to be cast in order for a legislative bill to pass the United States Senate. therefore the Senate Rule XXII of "Cloture" goes above and beyond the constitutional Authority per Ballin as stipulated by the courts opinion.
3. In addition, the current construction of "Cloture" also gives additional "Power" to the United States Senate as a "Silent Veto" process giving a minority the "power" to Veto Legislation before the President of the United States of America has the Opportunity to either sign and pass the legislation or Veto the Legislation, as it has historically been proceeded in Our government since the outset, thereby creating a "silent fourth branch" of government that acts in the minority with the Power of "Veto" acting as legislative and Executive Branch in one House of Congress, The United States Senate.
Thus removing and limiting the Power of the President of the United States, voiding the Executive Branch that has the right to pass the bill or send it back by" Veto" so that the legislative Branch then would have the opportunity to "over-ride" the veto by a full Senate body present required with 2/3 of the body needed to over-ride a Presidential" Veto".
Moreover, The Vice President of the United States is also crippled by the construction of the Cloture definition, being that the Vice President is also the President of the U.S. Senate, his authority to cast a vote in the event if the Senate be equally divided in the voting process, thereby giving the Vice President the power to cast the tie breaking vote under the constitution. This power would never come into order being that the current definition of the Cloture rule (2010) restricts the votes to a minimum of 60 to be cast in the affirmative in order to end debate and pass legislation, being unconstitutional as explained above.
Therefore, Senate Rule XXII violates the fundamental rights of the constitutional Separation of Powers limitation as well, creating a Senate that has both legislative and executive powers.
4. Senate Rule V in it's current definition fails to comport with the constitutional definitions and limitation in relation to Cloture and S.Ct. Opinion in Ballin, supra, as it also requires a 100% of members present for a quorum and 60 votes in order to change the rules, also created in the same act as cloture.
5. Although, the Byrd Rule of 1981 also know as the "Nuclear Option" or the Constitutional option by statutory authority say that a simple majority is all that is needed to pass legislation in the Senate, Reconciliation also is restricted on the type of bill it may pass, stripping legislative powers from the Senate by not allowing full and impartial bill to decide the most important question to be voted on in order to pass legislation as also stated in Ballin, supra as the court also stated the following,
"For, according to the principle of all the cases referred to, a quorum possesses all the powers of the whole body; a majority of which quorum must, of course, govern. . . . The constitutions of this state and the United States declare that a majority shall be a quorum to do business, but a majority of that quorum are sufficient to decide the most important question."
Therefore, the relevance of Cloture and the case of United States v. Ballin, infra closely ties the construction of the rules and proceedings being that "cloture" should either be removed or changed to be consistent with the Courts Opinion, or Judicial review would have to be taken to have it corrected consistent with the constitution and Ballin.
These statements are Facts that are Clear by the record of the published rules and controversies in the Senate since the Cloture rule was constructed and Facts can Not be disputed.
Argument
Senate Rule XXII controlled by Rule V in the U.S. SENATE takes executive powers away from the office of the President of the United States and Vice President and creates a hybrid "fourth branch" of government that is ultimately answerable to no one. The broad powers of the U.S. Senate under rule XXII is currently easily abused, or corrupted by partisanship creating an Aristocracy over a Democracy.
The Court stipulates that the Constitution states that only 2/3 of it's members have to be present in order for the Senate to pass legislation. In other words. the power of the Senate arises when 2/3 are present and then a simple majority will pass a bill of legislation.
Currently out of 100 members
67 Senators Present / 34 votes yeas vs. 33 nays then legislative passes (vise versa)
'United States v. Ballin, 144 U.S. 1 (1892) was necessary in order to prevent abuses of the U.S. SENATE, which historically operates in a environment of unbalanced abuse of power that is currently in violation of the Constitutional Separation of Powers where the Minority can thereby Veto legislation that would otherwise be passed by a simple majority present of the quorum call needing at least 2/3 of it's members present under the Constitution as stated by U.S. Supreme Court United States v. Ballin, 144 U.S. 1 (1892).
Resources
Sources
- This article uses material from the Wikipedia article "Cloture"
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