Sixty Votes

Cloture is routine, and mostly about nominations

Senate Rule XXII lets 16 senators file a motion to end debate (CRS RL30360). The vote comes on the second day of session after the filing. If three-fifths of senators duly chosen and sworn agree, normally 60, further consideration is capped at 30 hours (CRS RL30360). Exhibit 24 counts these motions by Congress. The Senate recorded none in the 80th Congress (1947–48), 54 in the 100th, 139 in the 110th, 252 in the 113th and 336 in the 117th (Senate.gov, Senate Action on Cloture Motions). The 119th stands at 294 (Senate.gov, Cloture Motions, 119th Congress). The Senate’s page for the 119th Congress runs through October 1, 2026, so that total is incomplete (Senate.gov).

Filings record how often leaders use cloture. CRS cautions that “it would be erroneous to assume the presence or absence of cloture attempts is a reliable guide to the presence or absence of filibusters,” and notes that motions are filed to preempt anticipated filibusters and, at times, to make amendments subject to the germaneness requirement (CRS RL30360). Cloture is now usually invoked: 247 of 294 votes in the 119th Congress (84%) and 270 of 289 in the 117th (93%; Senate.gov, Senate Action on Cloture Motions). The 114th Congress is the recent exception, with 60 invoked in 123 votes (49%; Senate.gov).

Exhibit 25 divides the motions by subject. The rule reads the printed measure and subject. A row is a nomination if the measure is a nomination number or an en bloc package of nominations, a treaty if the measure is a treaty, and legislative otherwise, which covers bills, resolutions, amendments and motions to proceed. Nominations were 229 of 294 motions in the 119th Congress (78%) and 277 of 336 in the 117th (82%; Senate.gov, cloture pages by Congress). Before the 113th Congress their share never exceeded 42% (Senate.gov). Legislative-measure motions peaked at 138 in the 110th Congress and number 65 in the 119th through October 1, 2026 (Senate.gov).

Apart from the 114th Congress, when 126 of 128 motions were on legislation, the rise in filings since 2013 is a rise in motions on nominations (Senate.gov). The lower threshold left the procedure in place: CRS notes that a nomination still takes a cloture motion and a vote after two days of session (CRS R44819). Post-cloture time is up to 30 hours for 21 high-ranking executive positions and two hours for many other nominations (CRS R48729). Cloture was invoked on 220 of the 229 nomination motions in the 119th Congress (Senate.gov).

Why nominations and legislation now differ

The Senate adopted Rule XXII on March 8, 1917, with a two-thirds threshold (Senate.gov, Cloture Rule). In the next 46 years it invoked cloture five times (Senate.gov). In 1975 it lowered the threshold to three-fifths of senators duly chosen and sworn for all matters except changes to the rules, which still take two-thirds of senators present and voting (CRS RL30360). CRS describes the exception as a compromise: senators feared that an easier rule would make further changes easier (RL30360). Exhibit 26 plots the thresholds.

As CRS describes the rule, the three-fifths threshold in the text of Rule XXII has not changed since (RL30360). Later changes to the threshold are precedents, set when a majority declines to sustain a ruling of the chair. CRS notes that such proceedings are called “the nuclear option” because they required actions “arguably at variance with established principles underlying Senate procedure” (R44819). On November 21, 2013, the Senate voted 48–52 not to sustain the chair’s ruling (roll call 242), then invoked cloture 55–43 on a pending nomination (roll call 244). The precedent set majority cloture for every nomination except the Supreme Court (R43331). On April 6, 2017, the Senate did the same for the Supreme Court: 48–52 on the ruling (roll call 109) and 55–45 on cloture (roll call 110).

September 2025 extended the approach to groups of nominations (CRS R48729). An executive resolution lists the nominations. Once the Senate adopts it, the listed nominations can be taken up together as one item, and cloture at both steps takes a majority (CRS R48729). On September 11, 2025, the Senate rejected cloture on S.Res. 377 by 52–47 for lack of three-fifths (roll call 513), agreed to reconsider 52–45 (roll call 514), voted 45–53 not to sustain the chair’s ruling that three-fifths was required (roll call 515) and invoked cloture 53–43 (roll call 516). It adopted the resolution 51–44 on September 15 (roll call 517). The sequence repeated on September 17 for the 48 listed nominations (roll calls 522 to 525), and the Senate confirmed them 51–47 on September 18 (roll call 526). Article III judges and 21 high-ranking executive branch positions are excluded (R48729).

Exhibit 27 lists the five packages confirmed from September 2025 to August 2026: 48, 107, 97, 49 and 74 nominations, 375 in all (Senate.gov, roll call votes). Confirmation votes ran from 46–43 (May 18, 2026; roll call 125) to 53–43 (December 18, 2025; roll call 655). CRS anticipated fewer roll-call votes on nominations as a result (R48729).

The three steps share a pattern. A majority used a precedent to remove the supermajority for one class of business, and the next step widened the class. CRS observes that reinterpreting rules in a contested setting “might rely on steps that are novel or potentially are in contravention of existing rules and precedents” and that the effects “could also undermine the existing procedural prerogatives available to Senators” (R43331). The class has not reached legislation.

What still needs 60 votes

Exhibit 28 plots the median yeas on invoked cloture votes on legislation, by Congress. The median was 82 in the 119th Congress, across 27 votes, 70% of them with 70 or more yeas (Senate.gov, cloture pages by Congress). Since the 92nd Congress the median has ranged from 62 in the 96th to 93.5 in the 105th (Senate.gov).

Two readings fit that pattern. CRS describes a consensus effect: “the possibility of filibusters creates a powerful incentive for Senators to strive for legislative consensus,” because supporters have reason to write a bill that three-fifths of the Senate will back (RL30360). Leaders also choose which motions to file and when, and CRS notes that the threat of a filibuster often is sufficient to keep a measure off the floor (RL30360). Invoked votes therefore come from a pool that the threshold and the schedule have already filtered. The per-motion rows cannot separate the two effects.

The failed votes show the other side. Exhibit 29 counts legislative measures on which cloture failed with more yeas than nays. The count is 15 in the 119th Congress, 32 in the 110th, 26 in the 114th and 4 in the 117th (Senate.gov, cloture pages by Congress). In the 119th, 44 of 71 legislative cloture votes failed (62%), against 38% in the 117th and 37% in the 118th (Senate.gov).

The measure with the most failed cloture votes in the 119th is the fiscal 2026 continuing appropriations bill, H.R. 5371 (Senate.gov, Cloture Motions, 119th Congress). Cloture on its motion to proceed failed 12 times between October 1 and November 4, 2025, with 49 to 55 yeas each time (Senate.gov). The Senate invoked cloture on the motion to proceed 60–40 on November 9 (roll call 610) and again on November 10 on the amendment and the bill (roll calls 615 and 617; Senate.gov).

The 2026 record is Exhibit 30: seven measures, none reaching 60 (Senate.gov, roll call votes, 119th Congress, 2nd session). The closest was the motion to proceed to the Ratepayer Protection Act (H.R. 9340), 57–43 on September 30 (roll call 254). The others are the fiscal 2026 Department of Homeland Security appropriations bill (54–46, March 25), the SAVE Act vehicle (53–47, March 26), the Stop Insider Trading Act (53–47, September 30), voter identification (52–46, August 8), the fiscal 2027 defense authorization (50–46, July 14) and the Pregnant Students’ Rights Act (47–45, January 27; Senate.gov, roll call votes). At the start of the 119th Congress, Senate.gov lists 53 Republicans, 45 Democrats and 2 Independents. A 53-seat majority needs seven votes from the other 47 to reach 60 (Senate.gov, Party Division).

These are cloture votes, mostly on motions to proceed. They measure support for taking up a measure, which can differ from support for passing it, and a failed vote does not show that a measure would have passed under a majority rule. Leaders also schedule votes they expect to lose. The rows record outcomes and carry no information on intent.

The routes around 60 votes

Budget reconciliation lets Congress change revenue, spending and debt-limit law under expedited procedures. Senate debate is limited to 20 hours, and amendments must be germane and avoid extraneous matter (CRS R40480). CRS counts 25 reconciliation measures enacted since 1980 and four vetoed (R40480). Exhibit 31 shows the laws by Congress: 19 in the 96th through 110th (1979–2008) and 6 in the 111th through 119th (2009–2026), or 1.3 per Congress and 0.7 (R40480). The 119th has two (R40480). The Senate passed what became P.L. 119-21 by 50–50 with the Vice President voting yea on July 1, 2025 (roll call 372), the House concurred 218–214 on July 3 (roll call 190), and the law was enacted July 4. The Senate passed S. 2 by 52–47 on June 5, 2026 (roll call 163), and P.L. 119-98 was enacted June 10.

The count of laws shows no shift toward reconciliation. Scale varies widely. CBO and Joint Committee on Taxation estimates, as reported by CRS on July 15, 2026, are that P.L. 115-97 increased deficits by $1.46 trillion over 2018–2027, excluding macroeconomic feedback, and that P.L. 117-2 increased them by about $1.856 trillion over fiscal 2021–2030 (CRS R40480). CBO’s estimate of August 5, 2022, revising its August 3 table, is that P.L. 117-169 reduced them by $90 billion over fiscal 2022–2031 (CBO; R40480). For P.L. 119-21, CBO’s estimates of July 21, 2025, are a $3.4 trillion increase over 2025–2034 against its January 2025 baseline (CBO) and a $366 billion decrease against the budget enforcement baseline for consideration in the Senate (CBO). For P.L. 119-98 the estimate, as reported by CRS on July 15, 2026, is a $70 billion increase over fiscal 2026–2030 (R40480).

CRS describes P.L. 119-98 as providing appropriations for Customs and Border Protection, Immigration and Customs Enforcement and the Department of Homeland Security for border security and immigration activities (R40480). Cloture on the motion to proceed to the fiscal 2026 Department of Homeland Security appropriations bill (H.R. 7147) failed in seven tallies in 2026, none above 54 yeas (Senate.gov, roll call 71). Both facts are on the record. Whether the reconciliation law substituted for the appropriations bill is a question the vote counts cannot answer.

Two other routes use majority votes. A Congressional Review Act resolution that meets the statute’s criteria cannot be filibustered in the Senate, takes up to 10 hours of debate and passes by simple majority (CRS IF10023). CRS counts 43 rules overturned under it, 23 of them in the 119th Congress (IF10023, updated October 1, 2026). Statutory fast-track procedures for trade agreements remove the need to assemble 60 votes for cloture on the implementing bill (CRS R44584).

Each route is limited by subject. Reconciliation reaches budgetary provisions and excludes extraneous matter under the Byrd rule, the Congressional Review Act reaches agency rules, and trade procedures reach implementing bills. A bill outside those subjects, such as the voter identification and stock-trading bills in Exhibit 30, must clear 60 votes for cloture unless the Senate agrees by unanimous consent (CRS RL30360).

The contested reading, and the options

Supporters of the threshold argue that it protects legislative minorities, forces deliberation and keeps obstruction available until “a broad political consensus has developed.” They add that debate has protected different parties at different times and that the cloture rule “has been in effect for nearing 100 years with little ill effect” (CRS R41342). A study of all laws enacted from 1973 to 2016 finds that enacting coalitions remain nearly as bipartisan as in the 1970s and that most laws, including landmark enactments, still draw substantial bipartisan support (Curry and Lee, 2019). That result describes the composition of enacting coalitions. It does not by itself show that the threshold produced them.

Critics argue that it is undemocratic for a determined minority to prevent a majority from working its will, that it weakens the majority’s public accountability, and that much legislation and many qualified nominations have been delayed or defeated (CRS R41342). Some add that the threshold has pushed lawmaking toward routes that avoid it. Exhibits 29 and 30 bear on the claim about delay and defeat: measures with more yeas than nays have failed cloture in every Congress since the 88th, 15 of them in the 119th (Senate.gov, cloture pages by Congress). Exhibit 31 does not support the second claim in count terms, since reconciliation laws per Congress are fewer since 2009 than before (CRS R40480). The data here cannot say whether the threshold shaped which routes Congress used.

Three limits apply to every figure above. First, the counterfactual is unobserved: measures never drafted, scheduled or amended because of the threshold leave no cloture row. Second, selection: filings, margins and failures all depend on what leaders choose to bring. Third, cause. Binder (1999) builds a gridlock measure from newspaper editorials for 1947–96 and finds that the distribution of policy preferences within the parties, between the chambers and across Congress is central, with conflict inside the branches, perhaps more than between them, shaping deadlock (Binder, 1999). Chiou and Rothenberg (2003) find that specifications with party-unity effects and strong presidential leadership explain gridlock where specifications without party effects do not (Chiou and Rothenberg, 2003). These data cannot say how much of any gridlock the threshold explains.

CRS has listed the main options. The description below draws on its 2013 report, which predates the 2017 and 2025 precedents (R41342).

Option: talking filibuster and burden shifts. CRS describes proposals for an “extended debate” session entered after a majority short of three-fifths votes to invoke cloture. Opponents could block a vote only by speaking, quorum calls would be limited, and the majority leader could postpone votes. A related design reverses the burden: cloture is invoked by a majority unless 41 senators, in one version 40, vote against it, so absent opponents no longer block (R41342). The strongest case for it is that it keeps the minority’s right to delay and moves the cost of delay to those who impose it. The strongest case against is endurance and time. A determined opposition can place a senator on the floor to claim recognition. CRS adds that under stricter enforcement of existing rules the costs of staying in session “are still largely borne by the majority party,” and that floor time is scarcest at the end of a session, when every hour spent is unavailable to other measures (R41342, RL30360).

Option: a threshold that declines. The best-known version moves from 60 to 57, 54 and 51 on successive cloture votes (R41342). Supporters say a determined majority could eventually prevail while the early votes preserve the incentive to negotiate. Past versions applied only to nominations, and the Rules Committee reported one (S.Res. 138) that the Senate debated in the 108th Congress. The strongest case against comes from CRS: there is no guarantee the Senate would debate the matter during the layover, and recent versions bar a new motion until the last is disposed of, so each step spends floor time. A population-weighted variant has also been proposed. Gould, Shepsle and Stephenson (2021) would have cloture carry only if supported by a majority of senators who together represent more people than the senators opposed, and argue that it would be preferable to both the current rule and simple majority (Gould, Shepsle and Stephenson, 2021).

Option: carve-outs by subject. Proposals for a lower threshold in specific cases include nominations, on the argument that a President is owed some deference, with executive but not judicial nominees covered because of life tenure. Others would lower the threshold when some majority-party senators oppose cloture or some minority-party senators support it (R41342). In practice the Senate has adopted the nominations version by precedent: for all nominations in 2013 and 2017, and in 2025 for packages of executive branch nominations that exclude Article III judges (Exhibits 26 and 27; CRS R48729). The strongest case for it is the advice and consent argument that CRS summarizes: an inability to reach a final vote on a nomination is an abdication of a constitutional duty. A nominations-only rule also leaves legislative debate untouched. The strongest case against is that each step came through a contested precedent. Opponents argue that such proceedings damage the comity of a body that “operates overwhelmingly by unanimous consent,” and, for critics of the threshold, a carve-out leaves the rest of the agenda at 60 (R41342).

Option: no change. The case for it is the supporters’ case above: minority protection, deliberation, a consensus incentive and a long record under the rule. The strongest case against is that the practice has already moved without a change in the text. Formal amendment takes two-thirds of senators present and voting, 67 of 100 if all vote, and the changes since 2013 came through precedents that a majority can set (CRS R44709). Keeping the text of Rule XXII therefore does not fix the practice.

Several developments are pending. The 119th Congress ends on January 3, 2027, under the Twentieth Amendment, and its cloture counts are partial (Senate.gov). CRS reports that reform-minded senators urged adopting rules by majority vote at the start of the Congress in 2011, 2013 and 2015 without success (R44709). The 120th Congress begins on January 3, 2027, the next such occasion (the Twentieth Amendment). En bloc packages have arrived five times between September 2025 and August 2026 (Senate.gov, roll call votes). A cloture motion on the motion to proceed to H.R. 2347, a legislative vehicle for permitting reform, was filed September 30, 2026 (Senate.gov). The Senate’s roll-call list shows no vote after that day as of October 17, 2026 (Senate.gov).