Faced with running a Senate with a bare 51-vote majority, Majority Leader Bill Frist (R-Tenn.) is having a hard time getting legislation passed and nominations confirmed. It’s the same problem that previous Majority Leaders Tom Daschle, Trent Lott, Bob Dole, George Mitchell and others before them have faced.

Being in the majority is simply not enough to force action in the U.S. Senate. Depending on where you stand, that can be a good or a bad thing.

In today’s Senate, a minority of 41 Senators can affect, if not control, many of the significant decisions about what matters are brought to a vote, and therefore what becomes law and what does not. And, of most timely interest — who sits on the courts of the land.

The procedure that allows this is the cloture motion, Rule XXII of the Senate rules, which outlines the process whereby Senators can limit the normally unlimited debate that makes up the core of the Senate’s deliberative process.

Since 1975, when a new procedure to halt filibusters was created, Rule XXII has allowed three-fifths of the full Senate, or 60 Senators, voting in the affirmative to limit debate on any matter and force actions leading to a final vote. With 60 votes, you move ahead. With only 59 votes the filibuster continues ad infinitum.

The most visible current example of the force of the 60-vote standard is the standoff over confirmation of a number of judicial nominees. It’s the extra nine votes, above a simple majority, that are now required to end debate and move to a vote that has brought the nominations to a halt.

But the case of the judges is only the most obvious at this time. Such legislation as class action, tort reform, bankruptcy and energy proposals at one time or another have faced the 60-vote hurdle.

In the 1980s, waiving of points of order under the Budget Act became subject to the 60-vote requirement. The Senate’s favorite legislative tool, the unanimous consent agreement, is now part of the 60-vote playing field. Senators seeking to reach agreements on controversial amendments often are required to show that they have 60 votes or the amendments will be withdrawn.

Who is responsible for this situation? It has not been a partisan innovation. Both Senate Democrats and Senate Republicans, upon finding themselves in the minority, have sought to exercise the right to stop matters from coming to a vote by forcing the Senate to adhere to the 60-vote test.

The Rule

Unlike its counterpart, the House of Representatives, the Senate has always considered itself and based its actions upon being a continuing body that has protected the rights of the minority by allowing extensive, almost unlimited debate.

Cloture, the only current method of limiting debate in the Senate, was first adopted in 1917. It only came about because a filibuster — one that successfully blocked President Woodrow Wilson’s proposal to arm merchant ships against German U-boat attacks prior to America’s involvement in World War I — was so egregious that an embarrassed Senate decided to adopt this first cloture rule.

An irate Wilson called for a change of the Senate rules:

“The termination of the last session of the Sixty-fourth Congress … disclosed a situation unparalleled in the history of the country, perhaps unparalleled in the history of any modern Government. In the immediate presence of a crisis fraught with more subtle and far-reaching possibilities of national danger … the Congress has been unable to act either to safeguard the country or to vindicate the elementary rights of its citizens. …

“The remedy? There is but one remedy. The only remedy is that the rules of the Senate shall be so altered that it can act.”

In response, the Senate adopted by a 76-3 vote a new procedure that allowed Senators to end debate if two-thirds of the Senate agreed.

For nearly 50 years after its adoption, Rule XXII served a purpose more symbolic than real. From 1917 to 1927, cloture was voted on 10 times but it was adopted only four times. From 1931 to 1964, cloture was successful only twice.

Prior to 1964, the principal proponents of virtually unlimited debate were Southern Democrats who were a permanent minority and who saw this as their only protection. Following the passage of the 1964 civil rights bill, the Southern Senators had to face the reality of a Senate that would vote to cut off debate on a civil rights bill through the use of Rule XXII.

With the stranglehold on civil rights legislation broken, moderate, progressive and liberal Senators in both parties began to consider ways to make it easier to limit debate by reducing the requirement from two-thirds to three-fifths.

Significant though unsuccessful attempts to change the rules occurred in 1967 and 1969 and finally in 1975, under the leadership of Sen. Walter Mondale (D-Minn.) and Sen. James Pearson (R-Kan.), with the complicity of Vice President Nelson Rockefeller, the Senate adopted a change to Rule XXII that established today’s standard of 60 votes.

A Credible Threat

The filibuster today does not require a Senator to actually hold the floor continuously, but rather only to threaten to do so. In contrast to many of the uses of dilatory tactics of the past, modern filibusters virtually never involve round-the-clock series of speeches, all-night sessions or parliamentary maneuvering.

A credible threat that 41 Senators will refuse to vote for cloture can be enough to keep a matter off the floor. In effect, in the current Senate there is very little distinction between a filibuster and a threat to filibuster. Any credible threat to filibuster is treated as if it were a filibuster because the Majority Leader, who has limited time in which to work, must regard it as such. Thus, the filibuster is largely silent, invisible and relatively painless to the minority.

Whereas the filibusters of the past were the weapons of last resort, now filibusters have become part of daily life for the Senate leadership.

The extent of change in the use of the cloture motion in recent years is huge: Used less than 10 times in the 10 years after its adoption in 1917, Senators were asked to end debate under Rule XXII several hundred times in the past decade.

Commanding Compromise

For all its problems, the 60-vote requirement has had some salutary effects on the way the Senate works and the results it reaches. First and foremost, Rule XXII demands consensus and forces compromise. Successful Senate bills today are almost always bipartisan, attracting the support of broad groups, across party affiliation, geographic span or ideology.

The Senate approval of the president’s war plans for Iraq policy came about only after much debate and commanded a broad coalition of Republican and Democratic Senators.

Unlike the House, the Senate rules ensure that Senators from one party cannot simply ignore the Senators from the other party. It may be a forced collegiality, but success demands at least some cooperation.

This may be what the Founding Fathers were seeking when they established the Senate as the bastion for the minority, the continuing brake on the rush to action. George Washington sought to define the role of the Senate by comparing it to the saucer that holds a hot tea cup. He admonished the Senate to pour the “hot liquid” of the House of Representatives into the saucer to cool it down.

But there have been drawbacks to this approach as well. Ultimately the role of the Senate, and the majority party that sets the agenda, is to pass good legislation. When a minority of either party is able to indulge in obstruction to the extent that nothing can be accomplished, the majority party is no longer in a position to be held accountable for the body.

On a broader level, the growing reliance on the 60-vote standard has escalated the power of the two party leaders. It’s not unusual for the Majority and Minority Leaders, in search of the 60-vote cutoff, to rework bills significantly on the Senate floor bypassing committees and committee chairmen.

How does the Senate balance its mandate to protect minority rights with the need for action and accountability? How can it continue to be the saucer to cool the hot legislation coming from the House that President Washington described? As Wilson argued, citizens expect the Senate to act in times of great peril, but there also is the responsibility to protect the fundamental rights of citizens.

The actions of recent years may indicate that the Senate must again try to find a compromise to allow it to move forward on matters of great consequence.

The very visible impasse on judges has sparked proposals to change the Senate rules to give more power to the majority.

One possible solution would be to carve out a narrow area, such as nominations to the circuit courts of appeals and the Supreme Court, for the kind of treatment now given to budget matters — namely a time limit of from 20 to 50 hours equally divided between the two leaders or their designees, after which a vote would occur.

There is, however, the need to move carefully. The one constant about the Senate is that there are no constants. Today’s minority can become tomorrow’s majority in an instant, and what seems like a solution to today’s problems can all too easily become a weapon of great force to be used against tomorrow’s principled minority.

Robert B. Dove, formerly Senate Parliamentarian, is a consultant at Patton Boggs and a professor at George Washington University. He also lectures at Georgetown University Law Center.