Senate Filibuster Reference List

March 17th, 2010 by selise
(most recent update on 3/29/2010)

Note: This list of Senate filibuster references and source materials was compiled with powwow at FireDogLake over the course of several working threads and many debate threads and is my attempt to document and learn from powwow’s analysis. Please use the comments to contribute links to additional source material. Thanks, selise.

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Click on the item of interest to jump down to the relevant section:

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powwow’s diaries:

How we might break the merciless stranglehold that the two corrupt Parties maintain on our Congress and nation.
By: powwow Wednesday October 28, 2009

“Debating” health care reform: Party abuse of Senate procedure serves the President and concentrated power at the expense of the People.
By: powwow Sunday December 13, 2009

Let the C-SPAN cameras in, Democrats. [The Party's "Open Government" bluff just got called.]
By: powwow Tuesday January 5, 2010

Anatomy of a Backroom Deal’s Public Face: The case for letting Congress do the legislating on health care reform.
By: powwow Sunday January 24, 2010

4. Senate Amendment [SA] 2786, filed by Majority Leader Harry Reid on November 19, 2009 (shortly before the Senate’s week-long Thanksgiving break), was the first amendment offered – in the form of a substitute – on the shell bill from the House (H.R. 3590, an unrelated taxing-power bill that the Reid substitute amendment would wholly replace except for title and number) used by Reid as the vehicle – in place of the actual House-passed health reform bill (H.R. 3962) – to present his merged Senate committee product (text available here) to the Senate floor for (supposedly) good faith debate and amendment. Proposed floor amendments to the Reid substitute amendment shortly thereafter began being filed by Senators of both Parties.

5. On December 8, 2009 alone, 78 proposed amendments were submitted on the Reid substitute amendment, beginning with SA 3001 proposed by Senator Hagan (providing for "Improvement in Part D Medication Therapy Management (MTM) Programs"), and ending with SA 3078 proposed by Senators Klobuchar and Snowe (establishing the "Young Women’s Breast Health Education and Awareness Requires Learning Young Act of 2009"). Text of all 78 amendments is available here.

6. On December 18, 2009, SA 3275 filed by Senator Snowe (one of 11 amendments filed that day, this one to establish an "Accreditation Requirement for Rotary Wing Air Ambulance Services") was the last amendment proposed on the Reid substitute amendment (SA 2786) before Majority Leader Reid filed his secretly-negotiated (with …someone…) "Managers’ Amendment" SA 3276 on December 19, 2009 (text here), and then immediately filed cloture motions to end debate on his new amendment and the underlying amendment and shell bill, before "filling the tree" to block any possible amending of his newly-unveiled Managers’ Amendment from the floor.

7. Of the more than 400 floor amendments (SA 2787 – SA 3275+) offered on the Reid committee-merged substitute bill by United States Senators of both Parties, less than 30 were ever called up for debate or a vote on the Senate floor, including meaningless "Sense of the Senate" amendments, and all those called up needed 60-vote supermajorities to pass, by unanimous consent, so that less than 10 passed, including only one or two substantive amendments. [Though the unamendable backroom Reid Managers' Amendment filed on 12/19 included some and perhaps many of the never-debated Democratic amendments that had been filed on the bill (including at least one amendment of Dick Durbin's), but presumably none of the Republican amendments.]

"Filling the tree"? Good question. The "tree" in question is a reference to a chart graphic in the Senate Precedents Manual that demonstrates when and how to file amendments (first degree, second degree, etc.) on a measure.

Arlen Specter in 2008, speaking when he was still part of the minority Republican caucus:

U.S. Senator Arlen Specter (R-Pa.) spoke on the Senate floor Monday night regarding the use of the Senate procedure called "filling the tree" to derail progress on important pending legislation this session.

Filling the tree is a process whereby the Majority Leaders use their power to offer a sufficient number of amendments to "fill the tree" so that no other Senator can offer an amendment. Senator Reid has employed the practice 15 times this Congress on legislation, including the oil speculators bill currently pending, the Medicare bill, FAA reauthorization and climate change.

[Excerpting his floor speech:]

The institutions of the Senate are very important to this country. That is because this body has been called the world’s greatest deliberative body, because under the precedents, any Senator can offer any amendment to any bill at any time, virtually. There are some limitations, but that is the valid generalization. If you combine that with unlimited debate, this forum has been a place where ideas can be expressed, the public can hear them, the public can understand them, and momentous matters of public policy are decided by the Senate because of our ability to bring up these issues. Nobody can limit it. That has made America great. The Senate is a very important institution.

Now, regrettably, in the past 15 years–and it has been the fault of both Democrats and Republicans; and I have not hesitated, as the record shows, to criticize the Republican caucus. [...] In noting what has happened on this procedure of filling the tree–that is an arcane expression, but let me take a moment to explain it.

When a bill is filed, called up by the majority leader, the majority leader then has what is called primacy of recognition. If two Senators seek recognition, and the majority leader is one of them, he has the right to recognition first. So he then offers an amendment to the pending bill. Then he offers another amendment in the second degree. I won’t go on to detail the kinds of amendments, but the consequence is that no other Senator can offer any amendment. That is called filling the tree. Then, when the majority leader has done that, he moves for cloture. That is to cut off debate. Senator Reid did not invent this process. It had been used very sparingly until 1993, only 15 years ago. In one Congress, for example, the 101st Congress, 1989 to 1990, the Democratic majority leader, George Mitchell, did not use it at all. Then, in the session from 1993 to 1994, Senator Mitchell used it nine times. Then it got to be in vogue. Senator Lott used it nine times in the session from 1999 to 2000. Senator Frist then used it nine times in 2005 and 2006. Senator Reid has now used it 15 times, and it has had the consequence of precluding Senators from offering amendments [on the floor].

[...]

When I quoted Senator Reid about his denouncing the filling of the tree, his comment was that I had supported Senator Frist, the majority leader, and it is not true. I did not support him on that. I think Senator Reid was exactly right when he objected to the procedure to foreclose amendments by saying that the filling of the tree "is a very bad practice." These are Senator Reid’s words:

It runs against the basic nature of the Senate. The hallmark of the Senate is free speech and open debate.

Senator Christopher Dodd, Democrat of Connecticut, had this to say on the subject on May 11 of 2006:

….. to basically lock out any amendments that might be offered to this proposal runs contrary to the very essence of this body. ….. when the amendment tree has been entirely filled, then obviously we are dealing with a process that ought not to be. ….. the Senate ought to be a place where we can offer amendments, have healthy debate over a reasonable time, and then come to closure on the subject matter.

Majority Leader Reid has managed to set new records for the use of this deplorably-undemocratic practice even as he’s set records in the deployment of cloture motions (in the absence of actual filibusters), and made misleading public claims that shutting down Senate floor debate and amending is not his preference.

As I noted, Reid most recently "filled the tree" to silence the will of the Senate on Saturday, December 19, 2009, when he filed his Managers’ Amendment [SA 3276, text here] to the Senate health care legislation contained in his earlier merged substitute amendment SA 2786 (amending H.R. 3590). The Republicans had the Senate Clerks read the Managers’ Amendment aloud, following which Majority Leader Reid immediately filed three cloture motions – on SA 3276, then SA 2786, then H.R. 3590 (two of which were scheduled for votes by Reid at 1 a.m. in the morning) – and then Reid immediately filed and called up these subsequent second-degree amendments and motions:

SA 3277 [to SA 3276]:

At the end of the amendment, add the following:
The provisions of this Act shall become effective 5 days after enactment.

SA 3278:

At the end of the language proposed to be stricken [from H.R. 3590 by SA 2786], insert the following:
This section shall become effective 4 days after enactment.

SA 3279 [to SA 3278]:

In the amendment, strike "4" and insert "3".

Mr. REID. Mr. President, I have at the desk a motion to commit the bill with instructions.

The PRESIDING OFFICER. The clerk will report.

The assistant legislative clerk read as follows:

The Senator from Nevada [Mr. Reid] moves to commit the bill to the Finance Committee with instructions to report back with the following amendment numbered 3280.

The amendment is as follows:

SA 3280 [Instructions to a Motion to Commit]:

At the end [of H.R. 3590], insert the following:
The provisions of this Act shall become effective 2 days after enactment.

Mr. REID. Mr. President, I have an amendment to those instructions.

The PRESIDING OFFICER. The clerk will report.

The assistant legislative clerk read as follows:

The Senator from Nevada [Mr. REID] proposes an amendment numbered 3281 to the instructions of the motion to commit.

The amendment is as follows:

SA 3281 [to SA 3280]:

Strike "2 days" and insert "1 day".

SA 3282 [to SA 3281]:

Strike "1 day" and insert "immediately".

There you have it: "Filling the tree" in action last month at the direction of the Democratic Majority Leader, as Senator Coburn immediately clarified with the Presiding Officer:

Mr. COBURN. Mr. President, reserving the right to object, and I do not intend to object [to an unrelated order-of-speaking request], but I want to make a parliamentary inquiry prior to us doing that. And the inquiry is this: Based on the second-degree amendments just filed by the majority leader, as well as the elimination of their language, is it, in fact, the effect that no other amendments will be allowed on this bill?

The PRESIDING OFFICER. There are no available amendment slots at this time.

Mr. COBURN. Further in my parliamentary inquiry, if there were amendments available, could they be filed on this bill?

Mr. REID. I am sorry, I could not hear my friend.

Mr. COBURN. If, in fact, amendments were available, could amendments be filed to this bill and made pending?

I will restate my inquiry to the Chair. Is it, in fact, a fact that because of the filling of the tree by the majority leader, the opportunity to amend the bill before us will be limited?

The PRESIDING OFFICER. The Senator is correct.

The next day, Sunday, December 20, 2009, here’s the Democratic Majority Whip, Senator Dick Durbin, speaking from the floor to the American people:

Senator Coburn of Oklahoma filed 212 amendments during the HELP Committee markup. He offered 38 amendments to the bill. Nineteen of his amendments–half of them–were agreed to. Of those that were offered, 15 were not agreed to–all by rollcall vote. So 13 amendments offered by the Senator from Oklahoma were included in the bill that is before us today.

He has questioned whether the current procedure gives him an opportunity to offer amendments. The fact is, we are now on our 21st day of considering health care reform. Exactly 4 [floor] amendments have been offered by the Republican side of the aisle, 4 substantive amendments to change provisions in this bill of 2,000 pages–in 21 days, 4 amendments. They offered six motions to stop the debate, send the bill back to committee. They were generic motions. They did not ask for specific changes. They just take on an issue in the bill and say: Send it back to the committee and tell them to solve this problem and then bring it back to the floor at a later time. Well, that is kind of a procedural and, if I might say, political statement more than a substantive statement about a provision in the bill.

Fortunately, at least some members of the Senate can count, and aren’t as invested in selling this particular incarnation of publicly-underwritten corporate profit insurance to the American people as Dick Durbin is, and has relentlessly been, on behalf of his protege, and now master, Barack Obama:

Mr. KYL. [...] A final point on this. I have to say, the majority leader dictates the schedule of the Senate. All Senators are pretty much equal, but the majority leader has two things he can do and only he can do. He has the right of first recognition, and he has the right to set the schedule. By the schedule, I mean when he files a cloture motion, which is what brings this bill to the floor or this amendment to the floor [for a vote despite objection(s)]. When he files the cloture motion, that is what determines when the vote will be. He determines when to bring the Senate back in session. Under the rules, an hour after he brings us back in session, the cloture motion ripens and we have a vote.

He can set that time at any time. He can say tomorrow morning, at 9 a.m., the Senate will come back in session and we will vote at 10 a.m. The leader could do that. That is his right, and he is the only one who has the right to do that. But instead, he says we will come in at 1 minute past midnight tonight. Therefore, the vote will be 1 minute past 1 a.m. tomorrow morning. It is his right to do that.

We didn’t do that; he did that. He is the only one who has the right to set that schedule. If he wanted to set a schedule that was a little more convenient for all the Members–including our dear friend, the Senator from West Virginia, who is ill and indeed does have to get out of a bed to come in a wheelchair to this Chamber–the majority leader has it within his power to say we will do it at a more convenient time.

[...]

I guess I am going to conclude by saying I don’t believe this bill can be sold on its merits, and I think that is another reason why we have to hurry up and do it–before the public figures out what is in it. [...] That is why the majority of Americans want us to start over and address the problems on a step-by-step basis.

I was amused by my counterpart, the Democratic whip, saying Republicans have only offered four amendments. I think it was seven but say it is four. Guess who determines how many amendments we get to offer? The majority leader. He sets that schedule as well. He says now it is our turn to offer an amendment. Then it is your turn. The way he managed the schedule, we only got to file either four or seven amendments. We have 200 amendments pending [filed, but never called up for debate]. We would love to get as many of these pending and voted on as possible. Believe me, it is not Republicans who don’t want to vote on our amendments. The majority leader, again, has set the schedule.

This is why we oppose the bill. It is why we don’t like the process. We respect what our constituents are telling us. We believe this bill will be bad for them, and it will be bad for our country. Our Democratic colleagues have a different position. Neither their position nor ours is malignant, nor should they be expressed vindictively.

And:

Mr. GRASSLEY. We have been hearing repeatedly from the majority whip from Illinois that the Republican side has offered only four amendments. I found this to be rather astonishing. The majority whip should know, because they are filed at the desk, that Republicans have put forth 214 [floor] amendments. In addition to striking some of the bad ideas in the Reid bill, these amendments also contain Republican proposals that are improvements over the Reid bill. But in this rush to get it done, the majority has decided they don’t want to consider any more of the 440 [Democratic and Republican floor] amendments filed at the desk.

Let’s be clear. We keep them so people can have access to them anytime they want to, the 440 amendments that have been filed, that we are accused of not offering any suggestions or improvements. Right here in these three binders, any one of the amendments you want, it is there.

powwow @5:

Anyone interested can also track “Amendments Submitted and Proposed” by date of Senate (or House) session, through the Library of Congress Congressional Record browsing link here:

http://thomas.loc.gov/r111/r111.html

Each day’s session of the Senate has, whenever applicable, toward the end of its list of numbered topics, a non-PDF listing first of any amendments filed that day (listing the author and the bill being amended), and then, just below it, a separate non-PDF listing of the text of those amendments. [All links past the first one are temporary searches, so will expire if linked in non-PDF form.]

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Working threads:


working thread #1:

Senate Parliamentarian: Please pick up the citizen inquiry phone… [A working thread for selise about forcing the (real) filibuster.]
By: powwow Friday February 12, 2010

ericj115 @1:

Such a filibuster is impossible to force under the current rules. The best Democrats would be able to do is force one single Republican to say “I sense the absence of a quorum” every 15 minutes (while the Senate clerk repeatedly calls the roll for the quorum call). Furthermore, at least 50 Democrats would have to remain on the floor during this entire time, because as soon as the quorum call fails, the Senate would adjourn for the day.

This scene (of 50 Democrats sitting silently in the Senate chamber while 1 Republican repeatedly requests a quorum call) would do little to sway public opinion, methinks.

Yes, the rules can be changed via a Constitutional point of order (the “nuclear option”) or at the beginning of the Congress. But under the current rules, no forced filibuster is possible.

ericj115 @10:

I read those links. From what I read (and I could be wrong), if a Senator talks about the bill and then calls for a quorum, he or she yields the floor after making one of the two speeches they are allowed to make on the current question under the two speech rule.

However, if they don’t say anything substantive about the bill, and instead just immediately have a quorum call, that does not count as a speech under the two-speech rule. So while they do yield the floor, they have not used a speech.

In order to get around the “intervening business” required between quorum calls, can’t they just make some random motion (even if it fails)?

In other words,

Senator A: motion
Senator A: quorum call
Senator A: motion
Senator A: quorum call

… when A gets tired

Senator B: motion
Senator B: quorum call
Senator B: motion
Senator B: quorum call

etc.

No one is making any speeches here, so I don’t think the two speech rule applies, right?

powwow @11 (in response to ericj115 @1):

But under the current rules, no forced filibuster is possible.

That, in a nutshell, is the conventional wisdom that we are challenging. The first comment is thus a fitting place for it to be asserted. An assertion that follows from these scenes of futility:

The best Democrats would be able to do is force one single Republican to say “I sense the absence of a quorum” every 15 minutes (while the Senate clerk repeatedly calls the roll for the quorum call).

[...]

This scene (of 50 Democrats sitting silently in the Senate chamber while 1 Republican repeatedly requests a quorum call) would do little to sway public opinion, methinks.

My short response to that common assertion is that such a scenario of futility is the case only if and when the Rule 22 cloture process has already been voluntarily invoked by the majority.

Cloture (under Rule 22, and first adopted in 1917) was not designed to be used in the absence of a real filibuster, but rather to bring to an earlier end a real filibuster, if a supermajority agrees (meaning at least 60 Senators, since 1975), than would be possible by continuing to wait it out based on physical exhaustion, or the inability of the filibustering minority to gain recognition to speak. And yet, today, every time the majority initiates the cloture process (with the filing of a cloture motion signed by 16 Senators), it is in the absence of a real filibuster.

This statement in your comment absolutely applies to a real filibuster (except that those 51 majority Senators do not have to remain on the floor itself in between live quorum calls):

Furthermore, at least 50 Democrats would have to remain on the floor during this entire time, because as soon as the quorum call fails, the Senate would adjourn for the day.

That ability of the majority (a live quorum), in fact, to prevent the Senate from adjourning during a real filibuster, is one of the available tools for forcing a real filibuster to an earlier end, without the need for a supermajority cloture motion. Because until the Senate does “adjourn” – rather than “recess” – the “legislative day” continues. And as long as the “legislative day” continues (as distinguished from the calendar day) each Senator seeking recognition to speak on a question is limited to two such opportunities (because of the Senate’s “two-speech” rule, enforceable by a point of order).

And noting the absence of a quorum, or calling up an amendment, causes the Senator doing so to yield the floor, thereby counting any preceding remarks as one such speech under the “two-speech” rule. Furthermore, repeated live quorum calls may not be made unless and until “intervening business” has transpired in the Senate – for which further speech or debate does not qualify under the precedents of the Senate, as collected and described in Riddick’s Senate Procedure.

If you know anything that can dispute this response, beyond what you’ve perhaps read repeatedly in various places, about the unspecified “current rules” that supposedly today prevent, for the first time since the very early 1800s, one Senator (and those colleagues for whom he or she agrees to yield) from holding the floor continuously while speaking, in an effort to prevent the Senate from proceeding to a vote, please post it.

powwow @11 (in response to ericj115 @10):

Thanks for taking the time to read up on the issue, via the links (information that my comment @ 11 briefly summarizes).

In order to get around the “intervening business” required between quorum calls, can’t they just make some random motion (even if it fails)?

Good question. [I believe every other statement in your comment @ 10 is accurate.]

Time to dig out the lists of things that qualify, and don’t qualify, as “intervening business” according to Senate precedent, in Riddick’s. I’ll go look for it, and everyone else is welcome to join the hunt.

NOTE: powwow’s subsequent links to and quotes from Riddick’s (comment not included here) are included (with footnotes) in the Riddick’s Quorum section below.

powwow @14:

So, don’t we have a clear question formulated here for the Senate Parliamentarian, that needs answering? To wit:

Will it be up to the Presiding Officer at the time, whether or not the mere making of a motion during the next real filibuster qualifies as “intervening business” between live quorum calls? [Since there is Senate precedent for both positions.]

And how would such an ability to make endless motions, if those are indeed considered “intervening business” based on the latest Senate precedent, affect the operation of a real filibuster? For example, what sort of motions could be made, that the mover wouldn’t mind having votes on/passage of, and how, if at all, could the majority counteract or block such motions (aside from their ability to move to table, which requires a vote)? Part of the answer is probably in how the “two-speech” rule has been enforced (which I believe is discussed on about Page 781 of Riddick’s).

Same question for endless unanimous consent requests.

[The ability to make endless amendments can be blocked, for example, by the Majority Leader "filling the tree" before a filibuster begins.]

Or would the absurdity of trying to “filibuster” (particularly if the claimed reason is the need for more debate) merely by making endless absurd UC requests (which fail immediately following an “I object”), or forcing endless votes on serial motions of some sort (without somehow being ruled out of order), intermingled with live quorum calls, fall of its own weight?

powwow @16:

By the way, here are the available motion possibilities in the Senate, in order of their precedence, from Rule 22:

1. When a question is pending, no motion shall be received but

To adjourn.

To adjourn to a day certain, or that when the Senate adjourn it shall be to a day certain.

To take a recess.

To proceed to the consideration of executive business.

To lay on the table.

To postpone indefinitely.

To postpone to a day certain.

To commit.

To amend.

Which several motions shall have precedence as they stand arranged; and the motions relating to adjournment, to take a recess, to proceed to the consideration of executive business, to lay on the table, shall be decided without debate.

Also note this from Page 782 [PDF Page 67 of 83] of the “Debate” PDF of Riddick’s:

“A Senator who has spoken twice on the same question may be recognized to make a motion, and by leave of the Senate…” [the rest of the paragraph is not directly related to the first clause].

And from the beginning of Page 783:

“By this vote of the Senate, it was determined that standing alone, the following procedural motions and requests were examples of actions that did not constitute speeches for purpose of the two speech rule: parliamentary inquiries, appeals from rulings of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a division vote, requests for reading of amendments, and requests for division of amendments.“

[These citations appear to contradict each other, because the latter citation seemingly indicates that making a motion may itself be considered "a speech" under the two-speech rule, whereas the former citation doesn't seem to call for unanimous consent before a Senator can make a "third" speech by making a motion... Probably, though, that seeming contradiction is only because the latter list is not comprehensive or inclusive of all such possible "non-speech" actions. So that simply making a motion (like: "I move to adjourn"), without further comment, would not be considered a speech, but making a motion with any further comment at all would be considered, and ruled, a speech, if challenged. In fact, I believe I recall seeing a citation to that effect somewhere in Riddick's.]

NOTE: powwow’s links to and quotes here from Rule XXII as well as those here and following from Riddick’s Debate section are included below.

powwow @17:

By the way, again, here’s the very important moment that those waiting out a real filibuster have as their objective, from Page 716 [PDF Page 1 of 83] of the “Debate” PDF of Riddick’s Senate Procedure:

“As long as a Senator has the floor, the Presiding Officer may not put the question to a vote. But when a Senator yields the floor and no other Senator seeks recognition, and there is no order of the Senate to the contrary, the Presiding Officer must put the question.“

Remembering, as the majority Senators certainly would, that said vote, which, in such a circumstance, the Presiding Officer must “put the question” to, is a simple-majority vote.

powwow @18

Some more pertinent cites from the “Debate” PDF of Riddick’s:

Page 776 [PDF Page 61 of 83]:

“A Senator who yields for the transaction of business will lose the floor.”

And, same page:

“A Senator loses the floor when the Senate votes on a proposition, and would have to be recognized after the vote in order to get the floor, except by unanimous consent.”

And, same page:

“A Senator in the course of his speech cannot hold the floor, on objection or when a point of order is made, if: (1) He suggests the absence of a quorum and leaves the Senate Chamber; (2) he makes a motion to recess or yields to another to make such a motion, and the Senator yielding for such a motion would have no prior right of recognition – the Chair may recognize him again; (3) he asks for a vote which is taken; (4) he asks for a vote on an amendment which is taken, or if the Senate acts on an amendment, or if the Senate acts on a series of amendments offered by him, if he offers one amendment and tries to hold the floor to offer another or a series of them, offers an amendment and moves its adoption, or if he yields to another to offer amendments; (5) he makes a motion to adjourn; (6) he makes any motion; (7) or if a Senator in debate suggests the absence of a quorum or yields for that purpose, he loses the floor and his speech is thereby terminated.”

Page 777 [PDF Page 62 of 83]:

“A Senator loses the floor upon making a point of order.”

And, same page:

“In practice a Senator calling for a quorum does not lose the floor if no point of order is made against him.”

Page 778 [PDF Page 63 of 83]:

“A Senator does not lose the floor when he propounds a unanimous consent request; nor when he or she modifies an amendment.”

Page 784 [PDF Page 69 of 83]:

“If a Senator in possession of the floor yields to another Senator to make a motion to recess or makes such a motion himself he would lose the floor, and would have no prior right to recognition, and if recognized again, it would be his second speech.”

And, same page:

“A Senator who twice yielded in debate in the same day for motions to take a recess is not entitled to recognition again upon the same question, or who, during a second speech on the same day on a question, yields for a motion to adjourn loses the floor, and cannot proceed again in the face of objection which may be made after a Senator has started his third speech.”

I believe the latter two cites may directly address ericj115’s scenario @ 10, in combination with some of the other precedents.

powwow @20:

…here’re a few more suggested questions for the elusive Senate Parliamentarian.

Drawing on these assumptions by ericj115 @ 10…:

However, if [a Senator who has been recognized doesn't] say anything substantive about the bill [or otherwise], and instead just immediately [requests] a quorum call [by noting the absence of a quorum], [the requesting of a quorum call] does not count as a speech under the two-speech rule.

[...]

In order to get around the “intervening business” required between quorum calls, can’t [a Senator holding the floor] just make some random motion (even if it fails)?

…as compared to these Senate precedents from 18:

“If a Senator in possession of the floor yields to another Senator to make a motion to recess or makes such a motion himself he would lose the floor, and would have no prior right to recognition, and if recognized again, it would be his second speech.”

and

“A Senator who twice yielded in debate in the same day for motions to take a recess is not entitled to recognition again upon the same question, or who, during a second speech on the same day on a question, yields for a motion to adjourn loses the floor, and cannot proceed again in the face of objection which may be made after a Senator has started his third speech.”

The questions it would be good to have definitive answers to are:

If a Senator who has been recognized by the Presiding Officer merely suggests the absence of a quorum, and then is recognized first after the live quorum call has been completed, is the Senator still on his/her first speech on the pending question, upon being recognized the second time?

And:

If a Senator who has been recognized by the Presiding Officer propounds a unanimous consent request, which is denied, when the Senator resumes debate after that denial, is the Senator still on his/her first speech on the pending question?

And:

If a Senator who has been recognized by the Presiding Officer makes a motion, and then is recognized first after the motion has been voted on and defeated, is the Senator still on his/her first speech on the pending question, upon being recognized the second time?

ericj115 @21 (in response to powwow @13)

Interesting find regarding the ambiguity of whether a motion is intervening Senate business.

I also heard though that Republicans could stall with points of order (more in a reconciliation context, but I don’t see how that wouldn’t apply here). “Point of order, ruling on” is in your list of valid senate business. So couldn’t the sequence go like this:

Senator A: Bogus point of order
Chair: denied
Senator A: Quorum call
Senator A: Bogus point of order

… etc.

powwow @22 (in response to ericj115 @21):

I think points of order are actually going to be more valuable and useful to the majority, rather than the minority, in a real filibuster. [As the majority uses them to enforce the two-speech rule, and other rules and precedents in order to limit opportunities for easy obstruction by the minority.] And there are far fewer point-of-order tripwires for the contents of regular legislation itself, as compared to budget reconciliation legislation.

As to your scenario about a point-of-order/quorum call filibuster, I’d phrase a fourth question, regarding the two-speech rule, for the Senate Parliamentarian this way:

If a Senator who has been recognized by the Presiding Officer merely makes a point of order, and then is recognized first after the point of order has been upheld or denied, is the Senator still on his/her first speech on the pending question, upon being recognized the second time?

The answers to these four questions (which the Senate precedents seem to pretty clearly address, but confirmation would be nice), would help determine whether repeatedly yielding the floor and/or making UCRequests in the way you suggest would help filibustering Senators to meaningfully extend their opportunities for seeking recognition and speaking on the pending question. Because if that approach doesn’t meaningfully extend those opportunities (the history of real Senate filibusters would be a good source of examples about this), as far as I can see it’d be a pretty pointless way to filibuster, with almost no debate, that allows the majority to just slog through a few rounds of pointless voting per filibustering Senator, before proceeding to a simple-majority vote on the underlying question.

[For example, in your scenario @ 21, if the precedent I cited in 18 means what it sounds like it means, Senator 'A' would be finished with his participation in the filibuster, after taking only those two or three actions, and could no longer be recognized, if anyone objected.]

powwow @24 (in response to ericj115 @1):

Yes, the rules can be changed via a Constitutional point of order (the “nuclear option”) or at the beginning of the Congress [the so-called "Constitutional option"].

I need to explicitly disagree with this, not only on general principles (the rules and precedents would be knowingly abrogated rather than “changed”), but also based on this crystal clear Senate precedent, from Page 935 [PDF Page 2 of 4] of the “Motions” PDF of Riddick’s Senate Procedure:

“A motion directing the Chair to put to the Senate without further debate the consideration of a resolution to change the rules under his constitutional right to get a vote on changing the rules at the opening of a new Congress is not in order.”

[Followed by:]

“When such a motion is made, it is in order to make a point of order against such a motion, and a point of order having been made, the Chair has the authority to submit the question to the Senate, ‘Shall the point of order made by said Senator be sustained?’”

Those advocating using either the “nuclear” or the “Constitutional” option to avoid the already-optional use of Rule 22’s cloture process, and the present need to wait out any real filibusters, are, among other possible approaches, planning to ignore the clear Senate precedent in the first cited sentence, by asking a simple Senate majority to refuse to sustain a point of order made against that majority’s own indisputably “out of order” motion.

NOTE: powwow’s link to and quotes from Riddick’s here are included in the Riddick’s Motions section below.

selise @34:

powwow, in addition to painless, debateless delay you discuss via the cloture process, couldn’t a committed minority inflict a lot of pain without ever debating an issue just by objecting to unrelated UCAs (the morning Journal, the reading of the bills, etc)?

powwow @43 (in response to selise @34)

Yes.

By “painless” I mean, in part, that other Senate business generally gets to proceed apace, without disruption (during cloture). But a Senator making an objection to every routine Unanimous Consent Request would indeed throw a major and painful wrench into the works of the Senate, even if no extra debate came with it, and would cause a lot of tension and voiced displeasure over the unusual practice (see, as one recent example, the uproar over Senator Coburn refusing to grant consent to waive the reading of Senator Sanders’s single-payer amendment in December).

selise @58:

But a Senator making an objection to every routine Unanimous Consent Request would indeed throw a major and painful wrench into the works of the Senate, even if no extra debate came with it, …

just a quick follow up for anyone attempting to follow along — i left something unsaid in my prior comment @34. the issue i was trying to briefly raise in this thread is that there are potential costs to the majority for actions taken by them (whether to call the minority’s filibuster bluff or to pull the nuclear option or anything else more or less severe) there are things the minority may decide to counter with. and although i don’t doubt the republicans are being obstructionist when it comes to legislation, they haven’t yet made a habit of obstructing the senate’s daily business. which they could do and anyone proposing any kind of change in rules or even common practice by the majority over the wishes of the minority must be prepared for what the minority could do in retaliation.

for a simple example, here is an article from 2005 when the dems were in the minority (from the source list @2):

Reid threatens partial Senate shutdown

Parties hurtle toward April clash over Democratic filibusters of Bush judicial nominees

Surrounded by 37 Democratic senators on the steps of the Capitol, Democratic Leader Sen. Harry Reid of Nevada threatened Tuesday to shut down the Senate over the issue of filibusters of President Bush’s judicial nominations. Reid would exempt from his shut-down only national defense matters and spending needed to ensure ongoing federal operations.

Right after the Senate returns from its two-week break, which begins Friday, Senate Majority Leader Bill Frist is likely to move to change a Senate rule that requires 60 votes to cut off debate on a nomination in order to bring it to final up-or-down vote.

Frist would lower the filibuster threshold for nominations to 51.

if the republicans were to respond to unilateral action taken by the majority, as reid threatened to do here, how should/could the majority respond? i’ve seen it proposed that the majority just rule actions by the minority to be dilatory (that is if i understand the comment here correctly), including offering amendments. how would voters see this action? as legitimate? or not? i take the current rumblings (birther controversy for example) of a crisis in legitimacy very very seriously and have no desire to add unnecessarily to them.

powwow @63

Here’s another version of the important precedent I quoted @ 17, governing when and how a question is actually put to a vote in the Senate, absent unanimous consent or the use of cloture, this time quoting from Page 984 [PDF Page 1 of 1] of Riddick’s PENDING QUESTION PDF:

“When a question is pending, and a Senator addressing the Chair concludes his address to the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.”

powwow @64:

With regard to the following motion cites, I should note that “filling the tree” – which the Majority Leader can do without unanimous consent before a real filibuster – seems to include foreclosing further motions to recommit, and amendments to any instructions with such motions, that could otherwise be proposed on the pending question [confirming this with the Senate Parliamentarian would be a good idea].

Page 1086 [PDF Page 7 of 11] of Riddick’s RECESS PDF:

“The renewal of a motion to take a recess is in order when business has intervened subsequent to a vote on a previous such motion.”

Page 1107 [PDF Page 2 of 18] of Riddick’s RECOMMIT PDF:

“Motions to recommit are not open to amendment except to add instructions, which may be amended by changing the character of the instructions; they are in order even if the yeas and nays on the motion have been ordered.”

[So it seems that, even if the "tree" wasn't filled, the majority could amend a dilatory minority motion to recommit with instructions so as, for example, to make the underlying bill even more majority-friendly.]

and, same page,

“A motion to recommit may be amended by a substitute to recommit with instructions, and the instructions to the substitute would be open to amendment in one degree.”

Page 1110 [PDF Page 5 of 18]:

“A motion to recommit a bill without instructions made after the rejection of a motion to recommit with instructions is in order.”

Page 1114 [PDF Page 9 of 18]:

“If a motion to recommit with instructions is rejected, another motion could be made after a reasonable length of time with different instructions or provisions, or immediately after amendments are added to the bill.”

and, same page,

“There is no provision in the Senate rules which forbids the repetition of a motion to recommit, and, therefore, the number of motions to recommit a matter is not limited under the rules; a second motion has been made on a succeeding day without being challenged. A motion to recommit is in order when it is substantially different from a previous motion, or where the bill has been materially amended or changed. A further motion to recommit a bill may be made after a reasonable length of time has intervened, and changes have been made in the bill.“

Page 1115 [PDF Page 10 of 18]:

“If a bill has been referred to a committee and subsequently reported, a motion to refer such bill to another committee is in order at any time the bill is before the Senate for consideration.”

[Though I assume that the second committee would also have to hold jurisdiction over some part of the legislation.]

NOTE: powwow’s links to and quotes from Riddick’s here are included below in the sections on Riddick’s Pending Question, Recess and Recommit below.

powwow’s next few comments are musings on the questions of: what is business for the purpose of quorum/business/quorum?, what counts as speech for the two-speech rule (including which of the actions considered business for purposes of quorum/business/quorum are considered speech and which are considered, standing alone, non-speech). Since these questions have yet to be answered and I understand that powwow has some further thoughts on these matters to post, I’ll leave them for now with just a link and a note that all of powwow’s Riddick’s cites in these comments are included under Riddick’s Senate Procedure below.


working thread #2:

Senate Parliamentarian: Thank you for answering selise’s questions [a second working thread about forcing the (real) filibuster].
By: powwow Tuesday February 16, 2010

powwow @20:

I think it’s true that the complained-of minority obstruction is actually coming, or is at least being responded to, in two different ways:

1. An intentional slow down of the movement of legislation on the Senate floor by way of mere objections or private threats to filibuster (even without any added debate in evidence), which predictably triggers the filing of a cloture motion by the majority, with its subsequent days of delay before the legislation or nomination at issue can move to a final passage vote, even if the cloture motion easily passes.

2. And then, those cloture motions that are never filed as a result of the same sort of backroom minority (or majority) threats to filibuster (and/or mere objections), where the underlying legislation or nomination (for example, Dawn Johnsen’s) is therefore, for whatever unknown, unexplained, unexposed reason(s), never brought to the floor at all by Harry Reid (who, conveniently, simply blames anonymous Republican obstruction for the lack of movement).

Thus, in the end, through a non-public process of pre-vote vote-counting, backroom dealmaking, and the taking of White House dictation, the cloture motions in #1 end up making it to the floor and mostly passing (or being withdrawn after the removal of minority objections), and those in #2 don’t. [What's not to love about this process if you're a member of the relatively-powerless minority...]

Which, when you think about it, is an abuse of the cloture process, as designed, that could be characterized as the Democratic majority’s already-implemented version of a “nuclear option” for the Senate’s “regular order”: Forcing 60-vote supermajority rule on the Senate, through the abuse of Rule 22, without ever bothering to first hold a Senate vote to implement such a drastic rule change.

selise @25:

“what is required for self government?” vs bush’s version of democracy which i think of more as an elective dictatorship

powwow @47:

Okay, finally found Al D’Amato’s 1992 real filibuster in the Congressional Record… [Those Senators in D.C. today know damn well that this sort of thing is still possible - a third of them or more were incumbent Senators at the time, and were even able to watch Al D'Amato's all-night effort unfold on C-SPAN from the comfort of their homes.]

The explanation of the recess – as excerpted in 39 – from “October 5, 1992″ until Wednesday, October 7, 1992 (skipping Tuesday, October 6), is that the legislative day of October 5 continued overnight as a result of/during the Al D’Amato filibuster, and thus the recess as effected per the excerpts in 39 was actually taking place on the evening of the calendar day of Tuesday, October 6th (which was still the legislative day of Monday, October 5th).

Al D’Amato’s (basically unplanned) real filibuster starts under Item #148 (“Fair Trade and Free Trade”) on the October 5 Senate list of actions that can be accessed here, upon his being recognized by the Presiding Officer late on the evening of Monday, October 5, 1992 [powwow continues will excerpts and analysis, also linked to in "Congressional Record" section below. -s]


OT partial working threads (first two epu-land courtesy of Jim White):

Could Ivins Have Produced All of the Anthrax Spores Used in the Attacks?

Next Up For Activist SCOTUS: “Honest Services”

A Daily Kos Disease: 150 Recs and Counting

powwow @90:

Some suggestions:

1. Are Senate precedent-defined “business” actions “procedural” for purposes of the 1986 Footnote 561 “non-speech” precedent? [This is another way of framing the "business as speech" question in the body of the second working thread post.]

2. Is there any working definition of “procedural motions or requests” in the Senate aside from the examples listed in the 1986 Footnote 561 precedent [starting on Page 783 of "Debate" in Riddick's]?

3. How much weight does the Senate Parliamentarian usually give the “See” footnoted practices cited in Riddick’s (culled from previous ‘guideline’ opinions given by the Presiding Officer) as compared to actual Senate footnoted precedents listed in Riddick’s?

4. After a roll call vote in the Senate, how long, without any qualifying intervening business first taking place, would a Senator likely have to wait before requesting a live quorum call? Or would he or she absolutely have to wait until some qualifying business took place (like a unanimous consent request), unless a motion to adjourn is made, before requesting a live quorum call, according to the most recent Senate precedent(s)?

5. If the ruling on a point of order is “business” (as one non-precedent opinion from the Presiding Officer in 1947 listed in Riddick’s states), then any time a Senator requests an out-of-order live quorum call, and an objecting Senator makes a point of order that no intervening business has yet taken place, when the Presiding Officer upholds the objection by acting to enforce regular order, “business” has thus apparently been transacted (through the Presiding Officer’s “ruling” on the point of order), thereby seemingly making the live quorum call instead immediately in order. Is that accurate? And, if so, does it seem likely that rulings on points of order would be formally (re-)classified as “non-business” instead, should this Catch-22 issue come before the Senate in future real filibusters?

6. Assuming that making a motion is “business,” but an immediate roll call vote on the motion is unsuccessful and the motion defeated, could a live quorum call be requested, without any other intervening business first transpiring, after that roll call vote? If not, which Senate precedent or rule would foreclose that option during a real filibuster?

i thought this crs report might contain enough info on previous filibusters to track some of them down to see if the two speech rule was used

Note, selise, that there may have been some sort of real filibuster conducted in the last week of February, 1988 – which was after C-SPAN started coverage of Senate proceedings. I believe that was the Byrd/Simpson battle over campaign finance reform, with its record 8 unsuccessful cloture votes; but it seems possible that a real filibuster could have started before Byrd began filing repeated cloture motions. I know the last (1992) early C-SPAN footage you tried to access wasn’t available, but if that week happens to be available in their archives it might be of interest to see if it was in fact an ultimately-successful multi-Senator filibuster that the majority couldn’t or didn’t wait out for more than a few days.


working thread #3:

Senate Filibusters and the Two-Speech Rule [a third working thread about forcing the (real) filibuster]
By: selise, Draft on March 20th, 2010; March 26, 2020
[An abbreviated version x-posted at FDL for the discussion.]

powwow @18:

Taking it as a given, then – based on Senate President Pro Tempore Robert Byrd’s February, 2010 “Dear Colleague” letter, in addition to the Congressional Record excerpts from Senator D’Amato’s 1992 real filibuster and the other evidence compiled in our first three working threads – that an actual, physical Mr. Smith Goes to Washington-style filibuster is absolutely still possible today in the United States Senate, under current rules and precedents, this comment focuses instead on the likely floor conduct of, and tactical moves available to, both sides in a real filibuster.

In particular, this comment revises and expands on the discussion in the first working thread about how the “two-speech” rule [Senate "Debate" Rule 19] apparently would or could be used by the majority during a real filibuster to foreclose otherwise-available avenues of non-debate delay by the filibustering minority, and how that minority apparently would or could try to avoid the constraints of the two-speech rule to ease the physical burdens of their real filibuster.

First, the pertinent provision of Senate Standing Rule XIX (19), the “two-speech” rule:

1. (a) When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.

As discussed in the earlier working threads, Senate precedents, as collected in Riddick’s Senate Procedure and carefully tracked by the Senate Parliamentarian, play a vital role in implementing this (and any other pertinent) rule, in practice, during debate on the Senate floor.

One thing we didn’t discuss in those earlier threads is the subtle difference in the precedential weight of earlier Senate practices collected in Riddick’s, based on how those practices are footnoted. This subtle but important difference was brought to my attention by reading the important 1986 floor debate making up the bulk of this third working thread diary, which selise tracked down at a local library and scanned and uploaded – a debate which lead to the establishment of an important two-speech rule precedent, which reads as follows [Starting on Page 782 (PDF Page 67 of 83) of the DEBATE PDF of Riddick's]:

“When a Senator called for the regular order, the Senator who had the floor was directed to take his seat, since it was determined that he had already spoken twice on the question before the Senate that legislative day, the Chair holding that recognition for any purpose constituted a speech. On appeal this ruling was not sustained as the judgment of the Senate. By this vote of the Senate, it was determined that standing alone, the following procedural motions and requests were examples of actions that did not constitute speeches for purpose of the two speech rule: parliamentary inquiries, appeals from rulings of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a division vote, requests for reading of amendments, and requests for division of amendments. Therefore, the two speech rule requires not a mechanical test but the application of the rule of reason.“[Footnote 561]

As selise’s diary highlights, during that 1986 debate, Senator Byrd, then the Democratic Minority Leader, quickly pointed out that difference in precedential weight to his colleagues, by reading from the (1981-edition) preface of Riddick’s. Here is the pertinent language in full, from the preface of the current edition of Riddick’s (which incorporates the 1981 preface):

It will be observed that the footnotes divide themselves into two classes: those without, and those with the word “See” and “See also.” Those without are rulings by the Presiding Officer or decisions by the Senate, and those with “See” are responses by the Chair to parliamentary inquiries in cases where the opinions expressed are in keeping with the practices of the Senate, even though in such cases an appeal from an opinion expressed by the Presiding Officer in reply to a parliamentary inquiry is not in order.

Note, too, the closing sentence from the paragraph just above that one:

Such responses to [parliamentary] inquiries selected for use here include only those which are in keeping with the long-established practices of the Senate.

Thus, Senator Byrd focused on that difference in footnote class to give very little weight to the ruling of the Presiding Officer (issued per the advice of the Senate Parliamentarian Bob Dove) on the question at issue (whether Senator Hollings was or was not on his third speech on the pending question), because Dove was relying on one of those “See” or “See also” citations. Such citations, as the preface notes, represent only an “opinion expressed” by the Presiding Officer to an earlier parliamentary inquiry, rather than an actual Senate decision or ruling by the Presiding Officer (which may be appealed, unlike mere opinions) – though the opinion Dove relied upon was evidently an earlier opinion that was “in keeping with the long-established practices of the Senate” since it was listed in Riddick’s.

As a result of that difference in footnote “class” explained by Senator Byrd, the analysis in this and future comments I make about how the two-speech rule might be deployed in a real filibuster will now err on the conservative side, by severely discounting any pertinent “See” cites in Riddick’s, in favor of non-”See” cites (clear precedents) – even though there’s no guarantee that in future the Senate would likewise so-easily dismiss a “long-established practice of the Senate” simply because it’s only cited as a response to a parliamentary inquiry, rather than earlier made formal precedent by the Presiding Officer ruling on a point of order or by vote of the Senate itself. [Nor is there any guarantee that the Senate will always act to uphold even clear (non-"See") Senate precedent in future, should a majority prefer instead to change it.]

Applying that severe discount to the (minority of) “See” cites that I included in the earlier working thread(s) reduces the apparent feasibility of certain minority actions in a real filibuster in several ways, which I will attempt to illustrate below.

Providing some context for this exercise – which is an effort to prove wrong the widespread evidence-free assertions that real Senate filibusters are no longer possible in actual practice – is this representative sample of the conventional wisdom promulgated by the Congressional/media narrative, from the first comment in our first working thread:

Such a filibuster is impossible to force under the current rules. The best Democrats would be able to do is force one single Republican to say “I sense the absence of a quorum” every 15 minutes (while the Senate clerk repeatedly calls the roll for the quorum call). Furthermore, at least 50 Democrats would have to remain on the floor during this entire time, because as soon as the quorum call fails, the Senate would adjourn for the day.

The same commenter (ericj115), after reading further, and speculating about how a filibustering minority might game the two-speech rule, questioned whether the following scenario would be feasible in a real filibuster (from Comment 10 of the first working thread):

In other words,

Senator A: motion
Senator A: quorum call
Senator A: motion
Senator A: quorum call

… when A gets tired

Senator B: motion
Senator B: quorum call
Senator B: motion
Senator B: quorum call

etc.

No one is making any speeches here, so I don’t think the two speech rule applies, right?

[Note: I'm going to assume, for the purposes of this exercise, that a "Motion, making of" qualifies as intervening "business" between live quorum calls. However, the most recent non-"See" Riddick cite (from 1942) in fact says it isn't "business," contradicting precedent from the year before (1941) that says it is "business," but there's also a "see also" cite from 1948 saying it is "business." In addition, however, a (in effect, for purposes of intervening business between quorum calls, non-roll call) "Vote on any motion, including to take a recess" is qualifying "business" according to 1921 and 1935 Senate precedent.]

So, adding to and refining what I said in the first working thread in response to ericj115’s scenario, this is how I now believe his scenario would in fact play out in a contested real filibuster, based on Senate rules and (non-”See”) precedents (identified further below):

Senator A is recognized by the Presiding Officer and makes a motion to adjourn (“business”), including requesting the yeas and nays (“business”), but says nothing more. [At this point a quorum call is always in order.]

Making that motion (or any other motion) causes Senator A to lose the floor, presumably (pending the working definition of “procedural” non-speech motions or requests) without being charged with a speech.

The Presiding Officer immediately puts the question to a vote (no one first suggests the absence of a quorum), and the roll is called.

The motion to adjourn fails.

Immediately after the Presiding Officer announces the result of the vote, Senator A again seeks recognition, receives it, and suggests the absence of a quorum, without saying more.

The Presiding Officer, on his or her own initiative, or in response to a shout of “regular order” from another Senator, explains that a quorum call is out of order because the immediately-preceding roll call vote on the motion to adjourn just demonstrated the presence of a quorum. [Despite the fact that the vote on the motion to adjourn (or any other - in practice, seemingly non-roll call - vote) is itself considered to be "business" according to 1935 & 1921 precedent. See below for the bolded, italicized 1897-1986 precedent for this from Page 1042 of the QUORUM PDF, and the 1895 precedent for this from Page 7 of the ADJOURNMENT PDF.]

Senator A then either starts his first “speech” under the two-speech rule by saying something other than making a different procedural motion or request (another motion to adjourn at this point likewise being out of order), or immediately yields the floor.

If Senator A yields, and Senator B is then immediately recognized, Senator B must either start his or her first speech, or instead, like Senator A, make only a qualifying (non-speech “procedural”) motion or request without saying more.

At this point, the “non-business” of the suggestion of the absence of a quorum is still not in order, and neither is the “business” of another motion to adjourn.

Here are the Senate precedents governing my scenario, more or less in order of exercise:

Page 1043 [PDF Page 5 of 41] of Riddick’s QUORUM PDF:

“A quorum call is not in order unless business has intervened since a quorum was last established [1982 & 1986 precedent], and the withdrawal of an amendment does not constitute business [1986 precedent].”

Starting on Page 782 [PDF Page 67 of 83] of Riddick’s DEBATE PDF:

“When a Senator called for the regular order, the Senator who had the floor was directed to take his seat, since it was determined that he had already spoken twice on the question before the Senate that legislative day, the Chair holding that recognition for any purpose constituted a speech. On appeal this ruling was not sustained as the judgment of the Senate. By this [1986] vote of the Senate, it was determined that standing alone, the following procedural motions and requests were examples of actions that did not constitute speeches for purpose of the two speech rule: parliamentary inquiries, appeals from rulings of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a division vote, requests for reading of amendments, and requests for division of amendments. Therefore, the two speech rule requires not a mechanical test but the application of the rule of reason.”

Page 776 [PDF Page 61 of 83] of Riddick’s DEBATE PDF:

“A Senator who yields for the transaction of business will lose the floor.”

and

“A Senator loses the floor when the Senate votes on a proposition, and would have to be recognized after the vote in order to get the floor, except by unanimous consent.”

and

“A Senator in the course of his speech cannot hold the floor, on objection or when a point of order is made, if: (1) He suggests the absence of a quorum and leaves the Senate Chamber; [...] (3) he asks for a vote which is taken; [...] (5) he makes a motion to adjourn; (6) he makes any motion; (7) or if a Senator in debate suggests the absence of a quorum or yields for that purpose, he loses the floor and his speech is thereby terminated.”

Page 3 [PDF Page 3 of 23] of Riddick’s ADJOURNMENT PDF:

Business must intervene between motions to adjourn when a quorum is present [1888 precedent]; likewise in the absence of a quorum, a motion to adjourn is not in order where no business relating to the obtainment of a quorum has been transacted since a previous motion to adjourn was defeated [1930 precedent], [the last clause is an 1889 "See" footnote/opinion].”

Page 1086 [PDF Page 7 of 11] of Riddick’s RECESS PDF:

“The renewal of a motion to take a recess is in order when business has intervened subsequent to a vote on a previous such motion.”

Starting on Page 1042 [PDF Page 5 of 41] of Riddick’s QUORUM PDF:

“Business must intervene before a second quorum call or between calls [multiple precedent cites from 1895-1935], or a quorum call is not in order when there has been no business transacted since the previous call which was completed if a point of order is made [multiple precedent cites from 1914-1988], and the suggestion of the absence of a quorum is not in order immediately following a yea and nay vote where the presence of a quorum was shown and no business has intervened [1897, 1980 & 1986 precedent]; but another quorum call is in order when business has intervened [1938 precedent]. Where a motion to adjourn has been made, the suggestion of the absence of a quorum is in order” [1917 & 1926 precedent].

Page 7 [PDF Page 7 of 23] of Riddick’s ADJOURNMENT PDF:

“A quorum having rejected a motion to adjourn, the suggestion of the absence of a quorum immediately thereafter, no business having intervened, was ruled out of order.” [1895 precedent]

Page 1043 [PDF Page 6 of 41] of Riddick’s QUORUM PDF is where the list of qualifying “business” transactions “for the purpose of calling another quorum” begins; see this comment for that list.

Other presumably “procedural” (until we can confirm otherwise with the Senate Parliamentarian) “business” motions available to the minority during a real filibuster in addition to the motion to adjourn, assuming motions to amend and recommit can be, and have been, fully blocked by the Majority Leader “filling the tree” before the filibuster starts, are a motion to recess (which aids the majority in a real filibuster by keeping the legislative day going into another calendar day), a motion to table (which would remove the pending measure from consideration) and a motion to postpone (the pending measure). If any of these were made instead of the motion to adjourn in my scenario, the same process would unfold, except that a live quorum call is not automatically in order as soon as those other motions are made, as it is when a motion to adjourn is made.

So Senator A, before yielding the floor, or Senator B upon taking the floor, could turn to one or more of those (presumably non-speech “procedural”) motions (the latter two being the most likely) to repeat the process of requesting and receiving a roll call vote on both, but still without making it then in order for a live quorum call to be immediately called, unless and until some non-roll call vote “business” action was first transacted.

And although it does appear that, despite not being able to repeat the same (defeated) motion at will, Senator A or B could repeat a defeated motion after a different “business” (and officially non-speech “procedural”) motion action has intervened, so as to simply interchange such motions to construct a non-stop series of roll call votes on successive motions to adjourn, to table, and to postpone, I think that such obvious bad faith use of “procedural” motions by a filibustering minority to game the two-speech rule, in an effort to frustrate or inconvenience the majority of Senators without bothering to debate the pending question, would probably be quickly brought to an end by some application of precedent, or change in precedent, by the majority, affecting how quickly or how often already-defeated motions may be repeatedly made in succession. [For example: The majority could decide to define or refine what a "procedural" motion is under their 1986 "non-speech" precedent (where it's not certain from the debate or from the precedent's wording that such motions are included, anyway), and/or remove the making of, and the (at least) roll-call voting on, such motions from the list of qualifying intervening "business" actions.]

Which leaves only a few other non-speech “procedural” requests that are also “business” actions – only one of them involving a roll-call vote – for the minority to try to exploit to create the scenario posited by ericj115 of requesting repeated, successive live quorum calls while simultaneously avoiding the constraints of the two-speech rule.

Heading that list of remaining non-speech “business” actions are points of order and unanimous consent requests.

The seeming potential of points of order [which are made in response to some action being taken on the floor - meaning, in practice, an action that the filibustering Senator first proposes, against which he then immediately makes a point of order, so that, somehow, he or she would be challenging some action of his or her own, more than likely...] for this purpose is belied by both the “See”-footnote cite that categorizes points of order as “business,” and by a perverse Catch-22 that I described in the last comment in the first working thread:

Note this precedent from Page 7 [PDF Page 7 of 23] of Riddick’s ADJOURNMENT PDF:

“A quorum having rejected a motion to adjourn, the suggestion of the absence of a quorum immediately thereafter, no business having intervened, was ruled out of order.”

How was the suggestion of the absence of a quorum “ruled out of order”? Presumably by the Chair ruling on a Senator’s point of order, a point of order whose “ruling on” is officially defined as “business” – after which a live quorum is supposed to be in order… Except not that time…

See the problem? It takes a point of order to enforce the requirement that “intervening business” transpire between live quorum calls. Thus, if such a “point of order” is made before an out-of-order quorum call begins, in order to challenge the fact that no business has been transacted since the last live quorum call, suddenly “business” (in the form of that point of order challenging the lack of business, or at least the “ruling on” that point of order) has transpired, and thus, presumably, the pending live quorum call is suddenly in order, after all… Except, of course, that seems absurd.

My assumption is that this Catch-22 contradiction would be resolved in favor of points of order being allowed to be used to enforce Senate precedents without, by means of their exercise alone, permitting the evisceration of Senate precedent. [Which might consist of points of order being moved to the "non-business" list, or else off the "procedural," non-speech list.]

Thus, not unlike the situation outlined above with motions, if and when Senator A or Senator B tried a quorum call/point of order (against…something)/quorum call filibuster to avoid the two-speech rule and prolong a filibuster without debating, some new Senate precedent recharacterizing points of order would probably be set post-haste by the majority to prevent such an inadvertent loophole from being exploited.

That leaves, as the 1986 debate seems to confirm, unanimous consent requests (which are “business” and do not cause the Senator making the request to lose the floor), the ability to request the yeas and nays (“business” which may result in loss of the floor), and appeals of rulings of the chair (possibly “business” and which lead to roll call votes), as the remaining “procedural”/non-speech business actions which could intervene between live quorum calls.

Requesting the yeas and nays won’t help the minority here – because there’d be one measure pending that’s being filibustered, and once the yeas and nays are requested on that, future requests would presumably be ruled out of order. And yeas and nays requested on “procedural” motions that might be made, though “business,” would precede roll call votes, which then prevent subsequent live quorum calls until other business has intervened.

If appeals from rulings of the chair are in fact “business,” obviously somehow a ruling by the Presiding Officer would need to be generated before such an appeal could be made. Which gets back to the making of points of order against actions the Senator doing the filibustering is likely undertaking. I guess a Senator could intentionally abuse the rules to get someone else to make a point of order that he or she could appeal, resulting in a vote on the appeal, but that tactic would require the cooperation and tolerance of the majority to succeed, and like the abuse of motions and points of order themselves, is likely to quickly backfire. And, as with the motion/quorum call/motion scenario first described, the resulting roll call vote on the appeal would preclude an immediate subsequent live quorum call, anyway.

Leaving, finally, unanimous consent requests which, like motions to adjourn, recess, or postpone, are not explicitly named as “procedural” actions or requests in the 1986 Footnote 561 non-speech precedent, although the 1986 debate on which this diary is based (and which lead to the vote that created the Footnote 561 precedent) clearly seems to have intended to include them as non-speech “procedural” requests, at least to some extent. [Unfortunately, the precise extent to which the two-speech rule is impacted, or not, by unanimous consent requests, seems to have been left unsatisfactorily-open and unresolved as a result of the posture of the 1986 debate in a post-cloture environment, which added an additional "dilatory" restriction that doesn't apply in real filibusters conducted outside of Rule 22's cloture process.]

Like the other theoretically-available non-speech actions that might lead to ericj115’s debate-free filibuster scenario, but to apparently-greater advantage for the minority at first than with motions or points of order, Unanimous Consent Requests – of any and all creative content, and even when, as they would be, they are not granted – as “business,” and seemingly “procedural,” non-speech requests, could take place between live quorum calls, but in this case repeatedly and immediately by the same Senator, or by multiple Senators, in sequence. At least until it dawned on the majority that the 1986 non-speech “procedural” request list needs clarifying to remove most or all unanimous consent requests from the “procedural,” non-speech category – or else the qualifying intervening “business” list of actions needs revising to remove UCRequests – because otherwise the 1986 Footnote 561 precedent managed to drive an unintended hole through Rule 19’s two-speech restriction on floor debate, at least during bad faith real filibusters. ["Unintended" - as is clear from the concerns expressed about this very issue by the Republican Majority Leader and Whip (Dole and Simpson) at the close of the 1986 debate.]

There you have it…

If anyone notices that I’ve missed something obvious, or not-so-obvious, or have overlooked an option, please point it out. And please feel free to request further elaboration or clarification (though please bear with me if I don’t respond immediately). This thread should remain open into Monday. Some explicit answers from the Senate Parliamentarian (I believe selise has received at least one such so far, with regard to our main premise) could helpfully firm up this analysis in one direction or the other – in particular, perhaps, at least to begin with, explicit answers to these questions:

1. Are Senate precedent-defined “business” actions “procedural” for purposes of the 1986 Footnote 561 “non-speech” precedent? [This is another way of framing the "business as speech" question in the body of the second working thread post.]

2. Is there any working definition of “procedural motions or requests” in the Senate aside from the examples listed in the 1986 Footnote 561 precedent [starting on Page 783 of "Debate" in Riddick's]?

________________

The debate at FDL:

* You Can’t Be A Progressive And Support The Filibuster
By: Jon Walker Monday November 23, 2009

powwow @1:

I support the principle of the good-faith filibuster, as a brake on the abuse of majority power. I might think differently if two corrupt and undemocratic Parties didn’t have a top-down death grip on the Congress, but they do. Yet even if I respected or trusted (which I don’t) the powerful few in Party leadership today who are allowed to dominate the Congress, whether it’s a Republican or Democratic majority, no small group should be allowed to so unquestioningly hold the ‘proxy’ votes of our federal representatives.

Until our campaign financing system is cleansed of corporate bribes, at least the filibuster gives us the occasional opportunity to stop some of the worst Congressional abuses (or would have – MCA, PAA, FAA, etc. – if it had been utilized by a principled minority). And considering the effective foreclosure by the majority Party (the Speaker) in the House – via the Rules Committee – of almost all genuine debate or amendment on the House floor on legislation, without a filibuster there to stop the stifling of democratic will, such a future in the Senate looms if the filibuster is weakened or repealed there. [By the way, how did the inability to filibuster in the House magically enable wonderful "progressive (health care reform) legislation to be passed" in that body, exactly?]

I’ve said it before, I’ll say it again: the present-day abuse of the filibuster is a symptom, not the cause of the problem. The cause is corporate-financed Parties and candidates who are now effectively immune to public opinion, and doing the bidding of their paymasters, not their constituents. No amount of “higher standard-holding” lobbying is likely to force that behavior to change, absent public financing of campaigns for federal office.

I don’t think “progressives” can be defined as people opposed to deliberative, democratic debate. Democratic debate which, in essence, is what good faith use of the filibuster is intended to promote (in addition to enabling the establishment of the occasional obstacle to very ill-advised policies or nominations).

powwow @26

When one Party is bluffing about its priorities or principles, and the other Party isn’t, it’s not hard to guess which one is going to use the filibuster to back up its professed beliefs, and which one isn’t.

I don’t think that the current failures of the Congressional Democrats and their leadership are a good reason to radically reform the debating structure of the Senate, as though the latter is the problem, not the former.

[...]

I’m confident that, freed of the need to plead to corporate deep-pockets for reelection financing, and thus to kowtow to an unprincipled Party line (which the Democrats in fact do a lot more than people may realize), principled legislators with convictions of their own who go to Washington to serve the public would have no problem doing just that, self-motivating themselves and like-minded others to get the job done, without needing to be ‘whipped’ and bribed into a Party line by (corrupt, entrenched) Party bosses.

FWIW, here’s an experienced former Republican Member of Congress and high-ranking Party leader advocating similar non-Party-directed independent-thinking by our legislators, in which he goes so far as to say:

Loyalty to party undermines the very essence of representative government, which depends on entrusting members of one’s community to act in one’s stead. What author Peter Shane labeled Madison’s Nightmare has come true: We live in a world of constant partisan warfare, a never-ending battle between clubs, undermining the belief that a citizen’s vote truly counts for something.

Political theorist Bernard Crick wrote that “politics is how a free people govern themselves.” Strong political parties, on the other hand, are how a free people lose that ability. Parties choose which candidates can be on the November ballot, and do so in primaries and conventions that cater to the extremes. Parties reward fealty and discourage independence.

In an earlier time, when it was hard to get information about candidates and they had to depend on party funding and volunteers, political parties made sense; today, they are remnants of a time that has passed. – Mickey Edwards, 8/7/09

* Harry Reid Plays A Game Of Chutes And Ladders Instead Of Saving American Lives
By: Jon Walker Tuesday November 24, 2009

Imagine I sat you down in front a Chutes and Ladders board game. I tell you all that you need to do is get the red piece onto the finish square. You could spend half an hour rolling the dice, moving up ladders and down shoots until you get your red piece to the finish square. But you don’t need to. You could have saved yourself half an hour by just picking up the red piece and placing it on the finish square. I never said you needed to follow the made up rules to the board game.

That is what the filibuster is like in the Senate. It is not part of the Constitution. The founding fathers had no intention that a minority should be able to stop the majority from passing any law with a simple up or down vote (treaties being the one exception).

The rules for the filibuster are completely made up and have been changed repeatedly. At any time, a simple majority can just eliminate the filibuster if they really want to. Whenever the filibuster became too much of a problem, the Senate has just changed the rules. There use to be no cloture vote to stop the filibuster, so they eventually created a cloture vote requiring a two-thirds majority of members. It was later changed to a three-fifths vote when they threatened to eliminate the filibuster. Reconciliation was then created to help get around the filibuster on budget matters. The important thing here is that a majority of senators can just vote to eliminate the filibuster and pass all the bills they’d promised.

The problem is Harry Reid and his little club likes playing shoots and ladders. They enjoy the game. They are grateful that they can use the made up rules to explain why they are not delivering on their promises.

powwow @4:

Another thing that the instinct to quash the 60-vote cloture vote overlooks, I think, is the current paucity of real debate in the Senate, all this vaunted “unlimited debate” ability notwithstanding. Harry Reid, as a rule, is extremely impatient to “get the work done” and constantly and regularly tries to prematurely hasten the final passage vote on legislation, even if it means no amendments get offered on the floor. [Because the Democrats refuse to simply open the floor to any and all germane amendments, and Reid and McConnell fail to "agree" on a limited list of pre-selected amendments for consideration under unanimous consent.] And then Reid likes to blame Republicans – unhappy about not being able to amend a measure – for withholding unanimous consent to waive debate, forcing Reid to file a cloture motion instead. It’s a two-way street, and I don’t think the Democratic majority is blameless here.

Too-often, avoiding (politically) “tough votes” is the reason the majority Party tries to foreclose genuine debate and amendment (aka, foreclose representative democracy) on the floor, which prompts a predictable reaction from the minority, who have no interest in protecting the political fortunes of the majority Party. Meanwhile, worthy amendments offered by Senators of both Parties all too often get left on the shelf, unexamined. The absence, so far, on the floor journey of the Senate health care bill, of this routine of trying to foreclose open amending, is why I’m hopeful that this bill at least, will be left to the democratic will of the Senate, instead of being manipulated by backroom power plays by the Parties.

- Public Option Remains Popular; Health Care Reform, Not So Much (great comment @41 by Praedor)
By: Jon Walker Wednesday December 9, 2009

Jon Walker @5

The 60 vote filibuster rule only dates back a few decades. Nothing magic about it. You can just pull a Bill Frist and do away from filibuster with the nuclear option.

Praedor @41:

You do NOT need 60 votes to defeat a filibuster people! Damnit, read the rules of filibuster! If Reid would actually REQUIRE a filibuster, old school as the Founders intended, then all that could be done would be that those opposed to the American people and in favor of corporations and big money would have only 2 opportunities to talk until they were blue in the face. That’s it. ALL that is required to beat a filibuster is patience. NO ONE can talk indefinitely. It is impossible. So, these idiots would yak and yak until they were physically unable to handle it anymore (hungry, potty break, lack of sleep, whatever…who cares?) and then they would have to quit. Then they would each have the opportunity to do it ONE MORE TIME as per the rules. Thus, there is a finite time that ANY filibuster can last regardless of the intensity of those doing the filibustering.

FILIBUSTER and then pass the bill on a simple majority vote. THAT is the way the rules read and how a filibuster works. All you gotta do is require the opponents to actually filibuster and let them exhaust themselves, then the bill hits the floor for a simple up or down vote, and that’s the end. 51 votes can defeat a filibuster. All it takes is sack by Reid.

* The Nascent Movement to End the Filibuster
By: David Dayen Friday November 27, 2009

Frustrated by the lack of action in Washington after a mandate for change in 2008, liberals and Democrats inside and outside of government have begun to question the Senate filibuster rule, which they attribute to the growing legislative paralysis.

The filibuster (the Dutch word for “pirate”), the process by which Senators can endlessly continue debate on any bill until being cut off by a cloture vote requiring a super-majority, has been part of the Senate rules since the establishment of the body. They used to be available to members of the House as well, until rule changes limited that ability. Senators have been threatening to end the filibuster rule since Henry Clay in 1841, and over time the rule has changed in scope. The cloture vote, allowing a super-majority to end debate, didn’t exist until 1917, and the votes needed to invoke cloture were lowered from 67 to 60 in 1975.

However, while the rules governing the filibuster have arguably loosened, the use of the filibuster has skyrocketed, turning the Senate into a body that needs 60 votes to move anything. This has especially become true since 2007, when the Democrats recaptured the majority. While news reports repeatedly warned Democrats while in the minority that they wouldn’t be able to hold filibusters for political reasons, since 2007 they have become commonplace, with no such media concern-trolling. In the 110th Congress, 70% of major bills were filibustered, as opposed to 8% in the 1960s.

Eureka Springs @15:

However I think back no more than a year ago and wonder just how much different our conversation on this would be under a republican administration.

So often our frustration was because feckless Dems under Harry Reid wouldn’t do it.

No, our biggest problems continue to be the dreadful excuses for half the so called Democrats we have.

selise @24:

Frustrated by the lack of action in Washington after a mandate for change in 2008, liberals and Democrats inside and outside of government have begun to question the Senate filibuster rule, which they attribute to the growing legislative paralysis.

it’s not the filibuster, it’s the dems. the filibuster is just the lastest bright shiny object supposed to make us think there is just one more thing they need for us to give them and then they will do what we elected them to do.

but it’s not going to be universal healthcare, and i bet most of you know that.

it’s going to be an attack on social security and medicare.

that’s what they are going to do if you take away the possibility of a progressive block in the senate from stopping them with a filibuster.

Teddy Partridge @45:

The whole idea used to be that there was a price in personal health and political image for conducting a filibuster; Strom Thurmond will be forever enshrined in infamy for his anti-civil-rights reading of the phone book for 24 hours on the Senate floor. It’s the painless filibuster that’s absurd: let the old farts debate for however long they can hold out, before they run to the succor of aides and the arms of funders, then hold a vote and end the filibuster.

Rule 22’s sweeping-away of personal pain and political price is what’s wrong today; there’s no coherent way to illustrate for the ever-attention-challenged American people who is holding up the people’s agenda.

Make them talk, Harry, make them talk.

powwow @68:

What is commonly meant, and understood, by the term “filibuster” is one Senator (possibly aided by some colleagues from time to time) holding the Senate floor without yielding, until his strength gives out (the Senate record for one man is 24 hours), thereby exercising his right to “debate,” though generally only in a desperate attempt to obstruct further action on a piece of legislation. One side effect, or probably perceived advantage, of this filibuster tactic, is to prevent any other business of the Senate from proceeding, thereby ideally (in the eyes of the Senator filibustering) allowing him to gain leverage (especially if recess or other must-pass legislation is pending) to extract concessions from the majority on the filibustered legislation/nomination before he has to cede the floor. But if nothing else, the Senator is likely to gain attention for his cause with this extraordinary tactic and voluntary undertaking of physical endurance. [See my comments in Jon Walker's threads linked by cbl2 @ 7 for more on the everyday ability to "object," and thus delay, that every Senator holds - a tactic which falls far below this definition of a filibuster, but which is also based on the unlimited-debate structure of the Senate.]

Your question asks why we haven’t seen that sort of filibuster, not just used to excess, but even used at all, in a long time. And yet, we’re told the Senate is being held hostage by the “filibuster.” So what’s going on?

A couple of things: Cloture-Related Delays coupled with The Uncalled Bluff.

1. “Cloture” means the ability of 16 Senators to (immediately) move to contain a filibuster to a maximum of about 48 hours if 60 colleagues agree – something that was not possible before 1917. The majority leader files the cloture motion, mid-filibuster, with 16 signatures, the Senate must wait one calendar day, and then 60 colleagues voting Aye – again mid-filibuster – ends the filibuster, even if the Senator filibustering is still holding the floor.

Except: 30 more hours of debate must transpire, post-cloture before the debate can come to an end, unless those hours are waived by unanimous consent. In that post-cloture time, unless waived by UC, no other Senate legislation can be considered, again unless waived by UC, but one Senator can not hold the floor for more than an hour, without receiving time from his colleagues. Generally, therefore, unanimous consent is usually granted for other Senate business to be conducted during post-cloture debate, even if the 30 hours themselves are not waived. [These post-cloture delays - which also apply to amendments and to final passage cloture votes - can potentially delay a vote for a maximum of 11 days of floor consideration, or 15 days after the motion to proceed was agreed to, under Rule 22. This process is what Chris Dodd used to good effect to delay and obstruct final passage of the FAA telecom immunity provision last year by a week or two, without ever conducting an old-fashioned filibuster.]

So voting for “cloture” in effect is voting to “move the question” – which generally means you think there has been enough full and fair floor (as opposed to committee) debate on a measure (and its amendments) or a nomination. And that the extraordinary move to (actually) filibuster should be ignored and overriden in the best interests of the nation (if the actual filibuster is still ongoing by the time of the cloture vote).

It was a principled move by minority Senate Republicans to try to prevent our entry into WWI, that brought the cloture motion (then needing 67 votes) into existence, in 1917, via Rule 22, in order to ensure that Congress granted Woodrow Wilson’s wish to send American Armed Forces into the insane horrors of WWI… And cloture was first actually exercised to overcome a filibuster of the horribly-misguided Treaty of Versailles in 1919. Not exactly a stellar beginning.

2. The Uncalled Bluff is the Senate Majority Leader equating a mere threat to filibuster with an actual floor filibuster, and quickly ceding to demands motivating the threat – including keeping legislation off the floor – so as to prevent an actual filibuster of at least 48 hours in length, including nights and weekends (until a cloture motion can be passed). [Because, you understand, the modern Senate is about "comity" not about principles...]

Consider, except for the demands on staff, how easy it would be, and have been, for Harry Reid to schedule every weekend as “filibuster” weekend for Republicans who claim they want to filibuster a measure. The rest of the Senate, except one or two monitors, goes home as usual, returning on Monday to vote for cloture, while the Republican is forced – if his threat turns out to be genuine – to hold the floor over the weekend and late at night to actually filibuster the measure in question – all to no avail, if cloture succeeds on Monday anyway.

Problem basically solved, if problem actually engaged (though the cloture-related delays would remain, of course).

In fact, using up much of the now-idle Senate floor time with actual Republican filibusters would probably hardly put a serious dent in the progress of legislation. Most of the idling floor time is being spent working out deals off-floor, in private, as the Senate has become increasingly allergic to real public debate. [Ever think that one reason Reid avoids actual Republican filibusters is because he's afraid they just might have a point, and Americans would get it if they spent two days on the floor talking without engagement by Democrats?]

Anyone who understands how completely undemocratic floor action in the House has become, and wants to emulate that in the Senate – or who, like Matthew Yglesias, completely overlooks and dismisses the threat posed by the years-long erasure of the (intended) separation of powers due to top-down control of the Parties in Congress by the White House, with the blessing of House and Senate leadership – is, to my mind, the genuine “radical” Ezra Klein dismissively writes of here:

But the radicals aren’t the ones who want to undo stealth rewriting of the legislative process. It’s those who want to ignore it.

If you’re truly opposed to “stealth” legislative process, you should be doing everything in your power to expand floor debate in both the House and Senate, rather than trying to shut down the last bastion of desperate minority line-holding that’s left in our Party-strangled, corruptly-financed federal legislature.

Here’s a similar summary I wrote during the FAA debate, to demonstrate how Chris Dodd was using the cloture rules to his advantage (despite being steamrolled-over at every opportunity by Harry Reid):

Neither 50 nor 60 nor 99 votes (absent a rules change) can remove these potential Senate obstacles to a speedy passage of the secretly-negotiated FISA bill:

1. A Senate Majority Leader who honors a member’s traditional “hold” on a bill, rather than bringing the bill to the Senate floor.

2. The two-day wait required before a cloture vote to force an end to debate can be held to overcome an objection/filibuster – before both a vote to proceed to the bill and before a vote on final passage of the bill – after a cloture motion has been filed (during the unlimited debate on a motion to proceed to a bill or during the unlimited debate on the merits of a bill that the Senate has proceeded to consider).

3. The allotted 30 hours of post-cloture debate prior to a vote on a motion to proceed to a bill that has been brought to the floor by the Majority Leader over the objection of a member, on which debate has been successfully limited by 60 votes for cloture.

4. The allotted 30 hours of post-cloture debate prior to a vote on final passage of a bill on which debate has been successfully limited by a cloture vote (a bill which “shall be the unfinished business to the exclusion of all other business until disposed of”).

http://www.rules.senate.gov/senaterules/rule22.php

SEIU’s Stern: Pass The Bill Out Of Senate, Fix It In Conference
By: David Dayen Thursday December 17, 2009

powwow @14:

… from an earlier comment of mine, this is what the secretive conferencing process looks like:

I don’t know how to prove this to you, Criggs, but I guarantee you that the same Party leadership that forced the Stupak amendment onto the House floor and thus into the bill and removed the committee-passed Kucinich state single-payer amendment (at White House direction, per Kucinich and Pelosi) will – behind closed doors – control the conference committee output, and, in so doing, will defer to the White House and its private Executive Branch “deals.”

Unless and until, as you correctly note (along with accurately summarizing where we are and how we got here), there is a rock-solid progressive block that would defeat the bill in that form in either the House or the Senate or both. [A Senate block could also defeat the Reid "manager's amendment" that - in one fell swoop - is the intended vehicle for inserting all of the latest backroom deals into the Senate bill - probably along with many of the hundreds of filed (Democratic) amendments that have never been allowed to be called up or debated on the Senate floor - just before the final vote in the Senate is forced via the filing of a cloture motion.]

The reason I can’t prove it to you is because the process (of end-running ‘regular order’ during conferencing) is intentionally secret. The nominal (formally-appointed) conference committee members of each body – other than the most powerful Democrats (only) like Baucus, Dodd, Rangel, and Waxman – sit around and wait to be told what they will be rubberstamping (or, if Republicans, opposing) in the one (or two) public meetings held for that purpose. Everything else besides those show-meetings is done in secret, and is now tightly controlled by the majority Party leadership, which defers to the White House, as reporting about the stimulus bill conference process – with Rahm Emanuel in the middle of it – made clear earlier this year. No, that’s not the way Wikipedia describes the process, nor the way it should operate in an independent Legislative Branch of government, especially under a Party pledged to “transparency” – but that is in fact the undemocratic, disgraceful Party-created reality today that’s strangling representative democracy in our federal legislature.

Finally, and crucially for the 60-vote apologists, conference committee reports can be filibustered in the Senate. Thus the final conferenced health care “reform” bill (which is clearly already being pre-conferenced with the House leadership in private as Steny Hoyer’s recent public remarks about passing a public option-free bill demonstrate) will also “need” 60 votes to pass in the Senate

35 Ways To Fix The Bad Senate Health Bill
By: Jon Walker Monday December 21, 2009

powwow @40 quotes from the congressional record several republicans statements on the senate floor including outlining some of the problems with the reid’s managers’ amendment as described by the cms.

The Time To Fix The Dysfunctional Senate Is Now!
By: Jon Walker Monday December 28, 2009

I would like to tip my hat to Ezra Klein for using the weekend to put out a whole series of articles addressing just how broken and dysfunctional our Congress has become. It is an issue that never seems to get enough attention but underlines almost every problem with our current government. He does interviews with Sen. Jeff Merkley, Sen. Tom Harkin, SEIU President Andy Stern, and UCLA professor Barbara Sinclair. The abuse of the filibuster has completely broken our government.

The filibuster has morphed dramatically over the years. For the first few years of the Republic, a filibuster was in impossible in the Senate. Even when it was “technically” possible, the filibuster was not once used for the first several decades. Eventually, the filibuster began to be used with no way to stop it. To solve the problem, the Senate added a 2/3 cloture rule of those voting. The rule went through several changes until we got the current 3/5 of sworn-in senators requirement in 1975. Throughout most of its history, the filibuster was a extremely rare tactic used by the minority party. Now its abuse has effectively ruined the Senate by imposing a defacto 60-vote requirement for anything to move.

[...]

If I could, I would gladly trade the failure of this Senate health care reform bill for eliminating the filibuster, once and for all. I know without the dysfunctional Senate ruining everything, the health care reform bill we would eventually get would be dramatically better. Any health care reform bill passed with a constitutional simple majority vote in 2010 or 2012, would probably be dramatically better than this current bill, and start helping Americans even sooner (before 2014).

- VP Biden Attacks The Filibuster, But Will He Do Anything About It?
By: Jon Walker Monday January 18, 2010

* Tom Udall On Fixing The Senate: “We’ve Gotten Ourselves Into A Box”
By: David Dayen Thursday January 28, 2010

While Barack Obama called for bipartisan solutions to the country’s nagging problems, and discussed the growing lack of faith in public institutions, a simple read between the lines shows that he was really focusing his attention on one institution – the United States Senate. He made many references to items of his agenda passed by the House but not be the Senate, and he returned on more than one occasion to the paralyzing force of Republican obstructionism in the upper chamber. “If the Republican leadership is going to insist that 60 votes in the Senate are required to do any business at all in this town, then the responsibility to govern is now yours as well,” he said.

One Senator is trying to change that insistence, and put the focus back on governing rather than the crippling rules which have led, in a pretty direct way, to American decline.

[...]

Udall described the maddening situation that the Senate finds themselves in – beholden to outdated and often paralyzing rules, but unable to change them readily. “Over the years, we’ve gotten ourselves into a box,” he said. “We have a provision that the rules of the Senate carry over from one Congress to the next. And if you want to change the rules, you need 67 votes. That’s a practical impossibility.”

To overcome this, Udall plans to make a motion for the Senate to adopt new rules for the 112th Congress at the beginning of 2011. How would such a process work? Udall says he needs to only bring up the motion and hold 51 votes to move to the next step of adopting those new rules. The Constitution does not refer to a super-majority vote to change Senate rules, Udall emphasized. And the premise that one legislature cannot bind the actions of a future legislature, affirmed in Supreme Court decisions, suggests that the Senate ought to be given a vote.

The new rules would be determined with a process going through the Senate Rules Committee, on which Udall sits. The committee is chaired by Chuck Schumer, and while Udall hasn’t spoken specifically with Schumer since he released his plan, he said that in the past, he has signaled an interest in working on rules this year. “I can say that there is a concern in the Senate about the rules,” Udall said. With a year to deliberate over new rules, the committee could be ready with a new proposal for adoption at the beginning of the next Congress. In the meantime, while the Senate waits to adopt new rules, general Parliamentary procedure would take precedence, Udall said.

While Udall didn’t want to “presume to say what the rules will be,” it’s pretty clear from his presentation that he is taking aim at the filibuster.

powwow @29:

Is the “Republican leadership” leading a majority in the Senate, and thus in a position to, or the Party that repeatedly volunteers to, file Rule 22 cloture motions with their requirement for 60-vote supermajorities?

Because, if not, President Obama targeted the wrong Party in his statement about “insisting that 60 votes” be required, since it is the majority Party that files cloture motions, and thus activates all the painless delays inherent in Rule 22, even – as is now always the case – in the absence of a real filibuster, and in response to mere objections – which is undoubtedly not how Rule 22 was intended to be used (and wasn’t so used, until Majority Leaders of recent decades started abusing the practice).

Anyone who dutifully follows along behind Obama, parroting his misleading construct, is helping the “mainstream” media spread and entrench its beloved 60-vote myth. A myth that purposely obscures the difference between resorting to an optional supermajority rule (Rule 22 cloture motions), and forcing genuine filibusters that can be waited out to preserve simple-majority passage of legislation.

A most-convenient myth that will very shortly ensure that nothing moves in the Senate again, absent 60 votes, for yet another year, this time, supposedly, until Rule 22 (or something else) can be – made more optional, or removed entirely, or ?? – magically cured in some unspecified way.

David Dayen @44:

An actual filibuster of the kind you suggest would go like this: one Republican would need to be on the floor at any one time, along with at least 50 Democrats (otherwise the GoOPer just suggests the absence of a quorum to give himself a break), and about as many people would watch what’s going on in the Senate as do now, in other words 6 people, and nobody would give a shit or understand what’s happening. “Make them filibuster” is an empty claim. Change the rules, not just the filibuster but the rules, like the take-up rule, or the unanimous consent requirement in all cases, for instance, and you have something.

selise:

… if you have evidence to contradict powwow’s, then by all means present it. but don’t ignore powwow’s research and analysis or worse claim you’ve addressed it when you haven’t (see powwow’s comment @57). my objection is that without including credible evidence that obama is not being entirely, um, honest in his statement you reference, you are playing stenographer and not reporter. iow, advancing the dem message instead of advancing understanding.

List of 51 Senate Democrats Who Support a Public Option: What’s Stopping Them Now?
By: Jane Hamsher Friday January 29, 2010

So, should we conclude that the 51 Democrats in the Senate who said they support a public option when 60 votes were needed were all full of shit, now that the bar is down to 50 and they’re still not moving?

powwow @82 (in reply to DCLaw1):

With regard to those Party partisans – especially Congressional incumbents, and, I contend, the President as well – they are the least trustworthy spokesmen for the case you want made (by them) to the American people: That it’s the other Party’s fault that the Senate, and thus their majority Party, “isn’t working” to enact good legislative product into law:

With popular anger at Congress at an all-time high, and so much of that frustration having to do with the perception that wealthy interests are subverting democracy and Washington is being prevented from “getting things done,” I think a high-profile campaign against the pseudo-filibuster would pay substantial political dividends.

That argument amounts, coming from those partisans, in the perception of most of the country, I think, to typical Party finger-pointing and blame-casting (unless the Democrats point fingers at their own abuse of the cloture motion in denouncing the pseudo-filibuster), which is pretty much all we’ve heard from the Democrats since long before the 2006 elections. I really don’t think the American people are in the mood for any more of that stuff, whether they can see through it or not (the less clear-cut the case, the more disgusted they get). Especially given that the Democrats at least technically had their 60 votes half of last year, and still managed to concoct a dreadful health reform bill all the same.

You don’t have to shift very far from what you’re saying, though, to get into the Ed Rendell camp of focusing on and pressuring the Democratic majority for an end to the “pseudo-filibuster.” Because it is within the Democratic majority’s power to do that now, whenever it chooses. And if you understand that [or can't dispute it - I've been asking for my argument to be specifically debunked as misinformed, so far to no avail], you’ll immediately see that the whole approach and purpose of the idea in your linked post will never appeal to the majority Democrats (or at least to their leadership). Because it would only risk exposing their own complicity in the Republican obstruction. [All a Republican Senator has to (rightly) say is: "The Democrats filed all those cloture motions last year that set the Senate record. All we ask is that they allow the Senate minority to participate in the work of the Senate, instead of trying to roll over us by abusing Rule 22."]

[...]

In short, I’m on a “crusade against the pseudo-filibuster” of sorts, and the result is that I’ve identified and am challenging the practices of the Senate majority as the real problem, rather than just condemning the current Republican Senate minority for merely “objecting” (for whatever unknown, usually privately-stated reasons) to various pieces of legislation or nominations. Whereas I read you as saying that it should be to Democratic majority/Obama advantage to (coherently) launch a “crusade” to condemn the pseudo-filibuster, as Obama and Axelrod have started disingenuously doing, even as that majority continues its record-breaking deployment of, again, optional Rule 22 supermajority cloture motions.

House Dem on the Senate: “There is No Way We’re Going to Trust Them”
By: Cenk Uygur Saturday January 30, 2010

… remember we were told earlier that the Senate easily had 51 votes for the public option but that we needed 60 votes in the Senate because of the big, bad Republicans. Now, all of a sudden we don’t have 50 votes. If it only needed 40 votes, or 30 or 20, we still wouldn’t have it. Why? Because the corporations run the place. The rest is all smoke and mirrors.

* In a Perfect World
By: Chris in DC (“DCLaw1″) Saturday January 30, 2010

Republicans Seek To Prove That The Senate Is Completely Broken, Again
By: Jon Walker Wednesday February 3, 2010

* Sherrod Brown Endorses Fixing The Broken Senate, Changing The Rules On Filibuster
By: Jon Walker Thursday February 4, 2010

The abuse of the filibuster has grown out of control. Last year saw more cloture votes than all of the 1950s and ’60s combined. The essentially standing Republican filibuster on everything has slowed the Senate to a crawl and forced multiple cloture votes for even mundane matters that end up passing by huge margins.

To learn more about Tom Udall’s strategy to change the Senate rules read his diary on that matter, which he posted on Daily Kos.

- Richard Shelby Announces Intention To Do What Republicans Have Already Been Doing
By: David Dayen Friday February 5, 2010

- Shelby’s Holds Prove Need For Senate Reform
By: Jon Walker Friday February 5, 2010

- The White House’s “Not In Anger But In Sorrow” Response To The Shelby Hostage Crisis
By: David Dayen Friday February 5, 2010

* Shelby Gambit Highlights Need for Changes To Senate Rules
By: David Dayen Friday February 5, 2010

* Republicans Prepare to Kill Jobs; Democrats Angle for Majority Leader
By: emptywheel Friday February 5, 2010 (see powwow comments at end of thread)

- Shelby Shakedown Morphs Into Mini-Shakedown
By: David Dayen Tuesday February 9, 2010

- Nelson To Join Filibuster Of NLRB Nominee Craig Becker
By: David Dayen Tuesday February 9, 2010

- Craig Becker Nomination Defeated As Cloture Vote Fails
By: David Dayen Tuesday February 9, 2010

- Obama Shows Up At WH Press Briefing, Threatens Recess Appointments
By: David Dayen Tuesday February 9, 2010

* More Frustration With Senate Rules After Craig Becker Vote
By: David Dayen Wednesday February 10, 2010

cboldt @41:

See the nomination of Stickler, to be Assistant Secretary of Labor for Mine Safety. Senator Leahy knows that the blocking of “routine” nominations is precedented.
CRS RL31948: Evolution of the Senate’s Role in the Nomination and Confirmation Process

* More Filibuster Reform Rumbling From The Senate
By: David Dayen Thursday February 11, 2010

powwow @54:

[The days they aren't in session, off the top of my head: They take all of August off. And all of October in election years (plus part of November), usually at least half of December (unless they haven't gotten their work done) and part of January. Plus week-long breaks for Presidents' Day, and most other major federal holidays (July 4th, Memorial Day, Labor Day, etc.), and Easter (and Christmas). Also, Mondays are usually travel days, with one or two votes sometimes scheduled in the early evening. Fridays are also usually travel days, even if the Senate is nominally open, with no votes held. And generally no committee meetings or hearings are held on Mondays or Fridays.]

Hugh @58:

The Senate was in session 193 days in 2009 for legislation and several other non-legislative days.

http://thomas.loc.gov/home/ds/index.html#senate

powwow @59:

[And those 193 days included a lot of Mondays and Fridays when next to nothing got done. Never mind a lot of Tuesdays-Thursdays when the Senate floor was completely idle, and endless fake quorum calls to an empty Senate were all the public saw, while the backroom deals were being struck.]

Just in general, with regard to selise’s proposed comparison of filibuster-wasted time to filibuster-free Senate time:

We obviously won’t know until it’s tried how long a real filibuster would last in today’s Senate. What we do already know is how much time the cloture process can waste before a vote on final passage of the legislation can be held, once the majority invokes it, without even requiring debate on the legislation at issue (while letting other Senate business continue):

1. A minimum of two calendar days whether or not the supermajority cloture motion passes.

2. If the cloture motion passes, up to two weeks total, if every possible delay is exploited by only one opposing Senator making objections (often in private).

It seems unlikely that there would be very many two-week-long real filibusters conducted against the average run of Senate legislation in today’s professional fundraiser-filled Senate. Even if all-night sessions were avoided by the majority for their own convenience.

powwow @70 (in response to bayofarizona):

… there is another way (by letting a real filibuster unfold and waiting it out, instead of immediately resorting to cloture):

i see the following ways a filibuster may be brought to an end:

1. political cost: the minority or majority concedes (and/or compromises) due to the political cost of an engaged public. a couple of examples are a minority that filibusters a bill that has both wide and deep support, or a majority attempts to push a bill hated by the public, may with time find the political costs too high to continue.

2. physical cost: the minority or majority concedes (and/or compromises) due to exhaustion.

3. procedural mistakes by the minority: if the majority is prepared to take a advantage of any procedural misstep or bad luck, the majority may be able to pass the filibustered bill (or amendment, etc) while the minority still wishes to filibuster.

4. the cloture process: even if 60 votes for cloture are not present when a filibuster begins, one or a few of the dissenting minority may be persuaded to vote for cloture as the filibuster proceeds.

of course these are not independent processes. as just one example, if some of the minority are persuaded by the mounting political cost to refrain from active support of a filibuster (even if unwilling to vote for cloture), that would add to the physical demands on the members of the minority continuing to actively filibuster via debate. – selise

When debate doesn’t naturally come to a conclusion of its own accord in the Senate, your approach gives us only two supermajority choices for reaching a simple-majority vote on final passage of legislation or nominations: unanimous consent, or 60-vote (67-vote for rule changes) supermajority consent to pass a cloture motion. Whereas waiting out real filibusters would return plain old simple-majority passage of legislation, no intervening supermajority hurdles needed, to the Senate.

But back to the amendment issue you raised, as it impacts the two-speech rule during a real filibuster.

I’m not sure whether you saw the rest of the comments in that thread, which was this one, after my first response to your comment, but I went on to elaborate on this at some length (see especially comment 50), because you’re right that my saying that unanimous consent is required before every amendment can be called up, is too broad a statement, in the normal course of events.

But as I elaborated, in the contested environment of a real filibuster, I think that would in fact almost certainly be the case, because the Majority Leader would arrange to “fill the tree” (call up all amendments that could be called up without unanimous consent) or there would already be a pending first-degree amendment, so that only second-degree amendments germane to the pending amendment, or motions to recommit, etc., would be in order (absent unanimous consent). Thus anything ‘not in order’ would require unanimous consent in that situation (as in any normal Senate situation – amendments have to be called up in proper sequence and form to be in order). So it seems clear that there are ways for the majority to keep the minority from abusing the amendment process during a real filibuster that would prevent them from extending their opportunities to speak by that route.

The cloture process was invented to get around unanimous consent.

I think it’s more accurate to say that “the cloture process was invented to get around real filibusters.” [It seems to have been propounded by Senators, prompted and pressured by President Wilson, who wanted strict majority rule in the Senate, akin to the House, and despised the minority's ability to delay in any way.]

- Obama Gets 27 Nominees Confirmed, Reserves Right To Use Recess Appointments
By: David Dayen Friday February 12, 2010

* Talking Filibuster: Enforcing “Two Speech Rule” Will Not Fix Broken Senate
By: Jon Walker Friday February 12, 2010

- Unlike Reid, Dick Durbin On Board With Senate Rules Reform
By: David Dayen Friday February 12, 2010

- Dick Durbin Backs Filibuster Reform
By: Jon Walker Friday February 12, 2010

Tom Udall (D-NM) plans to call a point of order at the beginning of the next Congress to push for a new set of Senate rules at the start of the next Congress. This move will only require a simple majority to change the Senate rules.

- Did Harry Reid Use The Public Option To Punk The Democratic Base?
By: Jon Walker Tuesday February 16, 2010

- Avoiding The Elephant In The Senate
By: David Dayen Tuesday February 16, 2010

* On the Filibuster: Think About What Eliminating It Means
By: El Duderino Tuesday February 16, 2010

I see no logic in getting rid of another part of democracy for the sake of short term gain that can only benefit the Republicans. Because the current opposition party is doing what it is supposed to be doing, and that poses a short term inconvenience for a party that pretty much refuses to filibuster even when it is the opposition — and especially when it really should be filibustering, you want to transform the Senate into a smaller version of the House of Representatives.

What appalls me is the shortsightedness of this particular agenda, as though Democrats expect to remain in the majority forever.

The problem over the filibuster is a manufactured one. It’s designed as a distraction from the fact that the Democrats, being in the majority party and beholden to large business interests, made certain promises to the nation that were contingent on the removal of a certain excuse for not passing badly needed reforms. Once that excuse was removed, something I suspect the Democratic Party leadership never really anticipated, the pressure to make good on campaign promises began to mount and the need was felt to pass some kind of illusory “reform” that would look good on paper but otherwise institutionalize the status quo.

selise @91:

… majority rule is not sufficient for a working democracy (by that i mean, in part, a liberal constitutional system of self government).

i’ll add, how does democracy work in a majority ruled non representative body (ie the senate) where a minority of senators may actually represent a majority of the people?

some other ideas to ponder…. how does democracy work, even in the case of majority rule, where the people have either no information or misinformation about the people they elect to represent them? how does it work if government decisions and actions are taken in secret and then lied about? how does it work without a free press? how does it work if the electoral choices do not provide a representative of the majority of the people’s views? how does democracy work when the rights of the minorities are not protected?

it’s a very long list, i’m sure you can think of more. that’s the list we need to consider when making changes that can and will affect more than what is being claimed here if we are to judge well if the change we contemplate will, on the whole, enhance or undermine government by the people.

- Bayh Addresses Elephant In The Senate, Calls For Filibuster Reform
By: David Dayen Wednesday February 17, 2010

* Firing or Ignoring the Parliamentarian – It’s Called Leadership
By: Jon Walker Friday February 19, 2010

* Hey, New York Times: Why Don’t You Tell the Senate to Just Pass the House Health Bill?
By: Jon Walker Friday February 26, 2010

- Dawn Johnsen Approved By Senate Judiciary Committee Again
By: David Dayen Thursday March 4, 2010

There does not currently seem to be the kind of support needed for Johnsen to overcome an expected filibuster. Republican Richard Lugar of Johnsen’s home state of Indiana supports her, but Ben Nelson, citing her views on abortion (which have absolutely nothing to do with the Office of Legal Counsel), opposes. And thus she only has a sure 59 votes, which of course in America is not enough for the President to get his choice of staffer.

bmaz replies in comments @9:

Actually, Ben Nelson has only indicated he would not vote for Johnsen in an up or down vote as far as I know; and, in fact, has never indicated he would block cloture on his own President’s nominee. Furthermore, Nelson has specifically stated on the record that the Obama White House has never even bothered to ask for his support on cloture. My link is no longer active, but here is Nelson’s quote from the Indianapolis Star:

Nelson said Wednesday that he doubted Johnsen’s nomination would be brought to a vote.

“We have to let the administration decide what they want to do,” Nelson said. Asked if he has told the administration whether he’d vote for Johnsen, Nelson said he hasn’t been asked.

Additionally, the two Maine Senators have never stated they would deny Johnsen a vote (i.e. they very well might allow cloture if pressed) and two very powerful women’s groups in Maine have indicated that they think Clooins and Snowe are reachable.

In short, the votes very well may be there if the Administration gave a damn about actually working and whipping Johnsen’s confirmation. The votes most certainly were there for the last six months of last year, and the Administration refused to call a vote. The Republicans are not the boogeymen here, it is Obama and Reid.

- Do House Democrats Need to First Pass Senate Health Care Bill? Former Parliamentarian Says “No”
By: Jon Walker Thursday March 4, 2010

- Michael Bennet Calls For Mild Filibuster Reform
By: Jon Walker Friday March 5, 2010

- Senate Democratic Leadership Jockeying For Position On Senate Rules Reform
By: David Dayen Wednesday March 10, 2010

- Potential Senate Majority Leaders Schumer and Durbin Both Back Filibuster Reform
By: Jon Walker Wednesday March 10, 2010

- Cut It: Don’t Try to Untie the Health Care Gordian Knot
By: Jon Walker Thursday March 11, 2010

- GOP Tries to Scare House Democrats by Pointing Out Dem Senators Are Cowards
By: Jon Walker Thursday March 11, 2010

The Democrats’ scam becomes more transparent
By Glenn Greenwald, Friday, March 12, 2010

A couple of weeks ago, I wrote about what seemed to be a glaring (and quite typical) scam perpetrated by Congressional Democrats: all year long, they insisted that the White House and a majority of Democratic Senators vigorously supported a public option, but the only thing oh-so-unfortunately preventing its enactment was the filibuster: sadly, we have 50 but not 60 votes for it, they insisted. Democratic pundits used that claim to push for “filibuster reform,” arguing that if only majority rule were required in the Senate, then the noble Democrats would be able to deliver all sorts of wonderful progressive reforms that they were truly eager to enact but which the evil filibuster now prevents. In response, advocates of the public option kept arguing that the public option could be accomplished by reconciliation — where only 50 votes, not 60, would be required — but Obama loyalists scorned that reconciliation proposal, insisting (at least before the Senate passed a bill with 60 votes) that using reconciliation was Unserious, naive, procedurally impossible, and politically disastrous.

But all those claims were put to the test — all those bluffs were called — once the White House decided that it had to use reconciliation to pass a final health care reform bill. That meant that any changes to the Senate bill (which had passed with 60 votes) — including the addition of the public option — would only require 50 votes, which Democrats assured progressives all year long that they had. Great news for the public option, right? Wrong. As soon as it actually became possible to pass it, the 50 votes magically vanished. Senate Democrats (and the White House) were willing to pretend they supported a public option only as long as it was impossible to pass it. Once reconciliation gave them the opportunity they claimed all year long they needed — a “majority rule” system — they began concocting ways to ensure that it lacked 50 votes.

- Glenn Greenwald calls B.S. on Democrats’ filibuster scam.
By: El Duderino Friday March 12, 2010

The questions that advocates of killing democracy ignore whenever asked are:

“What will Democrats do when the GOP returns to power and finds itself newly endowed with the ability to ram its legislation and appointees down our throats with a mere 51 votes?”

“How is it that the Republicans managed to pass a number of bills, including Bush’s tax cuts for the wealthy, got their nominees such as John Bolton around filibuster threats on political appointees using recess appointments, and do it all without eliminating the filibuster?”

So clearly the problem isn’t the filibuster, and as Greenwald points out, it is merely one of countless excuses the Democrats make for actively preventing legislation that might actually help people. As Greenwald points out, “If only 50 votes were required, they’d just find ways to ensure they lacked 50.” And then the GOP, benefiting from no longer having to worry about filibusters when they return to power in the Senate and maintaining rigid party discipline at most times, will finally have what it has always wanted: unfettered ability to force its extreme right-wing agenda down all our throats.

- The Roundup
By: David Dayen Tuesday March 16, 2010

Democrats tried to highlight GOP obstructionism and the 88 nominees still awaiting confirmation with a bunch of floor speeches today. Al Franken’s was particularly fun. This is politics, but Franken’s pointed words “this is a perversion of the filibuster” was something of a warning shot, designed to send the message that reform, even embraced by the more moderate side of the caucus, is coming.

- Why Do House Democrats Care More about Protecting Weird Senate Rules than Protecting Their Seats?
By: Jon Walker Tuesday March 16, 2010

________________

kagro x (David Waldman) on the filibuster and the nuclear option:

kagro x’s multi part series on the nuclear option from the next hurrah

Today in Congress
by David Waldman, Congress Matters, February 4, 2010

Republicans continue to filibuster just about everything in sight…

What stands in the way of “forcing” a filibuster?
by David Waldman, Congress Matters, February 18, 2010

How filibuster crazy is the GOP?
by David Waldman, Congress Matters, March 01, 2010

The thing I really wanted to add to this discussion is that counting cloture motions filed or even cloture votes taken doesn’t really encompass the whole picture. The requisite motions might not even get filed if the leadership thinks they can’t get close to the magic number of 60 to invoke cloture, yet that bill will have been filibustered as surely as any other on which there’s a cloture vote on record.

Nor does the official tally count what I’ve been calling “painless filibusters,” that is, roll calls on which a 60-vote threshold is agreed to by unanimous consent as a method of cutting short the time it takes to file for, invoke and finalize cloture. Yes, the higher threshold is agreed to ahead of time by everyone, but only because the threat of a “real” filibuster (whatever that even means anymore) forces everyone to accept the “painless” version as the faster path, while leaving the 60-vote hurdle in place just as surely as it would be otherwise.

Every hold left unchallenged and every objection to unanimous consent endured because of the time involved in breaking it can also be attributed to the filibuster, but will never show up in these charts.

So yes, the Republicans are on course to shattering all records for obstructionism. But the costs are much, much higher than the numbers reveal.

(selise: how do we know the republicans “are on course to shattering all records for obstructionism” if there is no objective measure? is there a way to independently determine if the dems are lying or telling the truth?)

Today in Congress
by David Waldman, Congress Matters, March 02, 2010

Did I ever mention that trick about moving to take the Senate into executive session for the purposes of considering a specific nomination? Oh yes, I did:

By the way, did you know that if the Senate moves simply to go to executive session, that motion is non-debatable and therefore not subject to filibuster, but the later motion to actually bring up a nomination is debatable and can be filibustered, but if the Senate moves to go to executive session for the purpose of considering a particular nomination, then the motion is non-debatable and automatically makes the nomination the pending business on adoption of the motion?

Neat trick, eh? Robert Byrd came up with that one in 1980.

That Robert Byrd. He’s really something, eh?

________________

The Obama administration on the filibuster:

Axelrod: Changing Senate rules to allow 51 votes for passage “a worthy discussion”
by: Chris Bowers, Thu Jan 28, 2010

This afternoon, I took part in a roundtable discussion with Senior White House adviser David Axelrod and various progressive media types. The discussion hit on a wide range of topics, but was particularly focused on procedural matters in the Senate.

Axelrod said that because Republicans have decided it requires 60 votes to pass anything in the Senate, they now share responsibility for governing. As such, the White House will make a big push in 2010 to increase public awareness of Republican obstructionism through the use of the filibuster. “They get to work with us, or they have to pay a price,’ Axelrod said.

Needless Delays and Filibusters Run Amok: A Case Study
Posted by Dan Pfeiffer, The White House Blog, February 04, 2010

Nine months ago, the White House sent the nominee for GSA Administrator, Martha Johnson, to the Senate for its consideration. Today, she was finally given a vote and was overwhelmingly approved by a margin of 94-2 [Update: make that 96-0 after the remaining two switched their votes]. What happened in between was a perfect example of why Americans are so frustrated with Washington.

Martha Johnson is an ideal candidate for Administrator, which is highlighted by the unanimous vote she received in committee. And the only thing that’s changed between now and then is that some in Congress found it to be politically expedient to delay her vote. This isn’t just about one person filling one job – it hampers our ability reform the way government works and save taxpayer dollars by making it more efficient and effective.

What’s worse, Martha Johnson is hardly the first nominee to fall victim to this trend of opposition for opposition’s sake. Nine of the President’s nominees found themselves stuck in this same situation only to be confirmed by 70 or more votes or a voice vote. Several nominees, including two members of the Council of Economic Advisers, had cloture withdrawn and were passed by a voice vote.

Maybe votes on these nominations were delayed as a bargaining chip for someone’s pet project – more likely it was part of a political strategy of opposition and obstruction at all costs. Whatever the reason, it’s obvious from the margins of the final votes that it had little to do with their qualifications.

This isn’t just a problem for nominees; it’s become a problem for legislating, too. Historically, the filibuster has been used as a way to try and reach a bipartisan compromise; now it’s just a tactic used to gum up the works. The Senate has had to cast more votes to break filibusters last year than in the entire 1950s and ’60s combined. This has prevented an honest debate from taking place, which has made it impossible to find agreement on important legislation that would benefit working families in this country.

What’s clear from all of this is that we need to change the way business is done in this city. If we’re going to have a government that works for the American people, then we need to focus on the things that actually matter to them, like jobs and health care. Every day we waste delaying votes on well-qualified public servants or obstructing progress on problems that need solving is a day we’re not doing our jobs. It’s time to put an end to these partisan political games and get back to work.

Dan Pfeiffer is White House Communications Director

White House articulating a case for ending the filibuster permanently
by: Chris Bowers, Fri Feb 05, 2010

Progressives are increasingly coming to see ending the 60-vote Senate, and restoring majority rule, as a necessary step to making progressive governance possible. At the same, moving to a 51-vote Senate is also viewed as a nearly impossible political task.

None the less, the White House is starting to make some noise about ending the filibuster. Last week, when I asked David Axelrod about the possibility of ending the filibuster permanently, Axelrod told me “that isa discussion worth having,” and that the White House “would have an interest in that discussion.” Yesterday, Vice-President Joe Biden also implied an interest in permanently ending the filibuster…

whip count to end the filibuster
from Chris Bowers of OpenLeft, “filibuster” tagged posts

________________

beowulf on reconciliation options:

beowulf January 31st, 2010

Two words, reconciliation bill. There was a 16 page bipartisan revenue-neutral carbon tax bill introduced last year. The carbon tax could be ramped up to replace the $225 billion paid annually in Medicare payroll taxes (2.9% of wages, split between employer and employee).

But that’s crazy talk of course, because then people would wonder why Congress didn’t simply use reconciliation to expand Medicare coverage with, for example, the 60 page “public option on steroids” Americare bill?

DrSteveB: Strong Public Option: 100% Coverage & Cost Control

Since both Americare and the carbon tax bill are revenue measures under the jurisdiction of the Finance Committee, and both would be modifications of an existing program, Medicare (spending in the case of Americare, taxation in the case of the carbon tax bill), they could be combined in a single 50 + VP vote reconciliation bill. In which case, the carbon tax could replace up to “only” $224.9 billion in Medicare taxes since the reconciliation bill requires at least $1 billion in deficit reductions over 10 years. The downside is that at a combined length of 76 pages, a reconciliation bill that deals with both climate change and healthcare (providing universal coverage starting Jan. 1, 2011, three years sooner than most of the Senate bill provisions begin) would come in at least 3000 pages shorter than the combined length of the Senate healthcare and the House climate change bills. I think we could live with that. :o)

I’m not saying the Harlem Globetrotters aren’t a solid team, but I’m starting to think the Washington Generals aren’t even trying to win

beowulf February 1st, 2010

…I meant to note in my original posting (but I was writing too much as it was) that there at least two other House carbon tax bills were sponsored in the House this year. One by (inevitably) Pete Stark that doesn’t refund payroll taxes and another by John Larson that’d refund payroll taxes and increase Social Security payments. The one I linked to above was written by a Republican (Bob Inglis), which’d make it tougher for the GOP to attack.

http://www.carbontax.org/progress/carbon-tax-bills/

beowulf February 2nd, 2010

Well technically, it’d be the Medicare expanding HR 193 (To amend the Social Security Act and the Internal Revenue Code of 1986 to provide for an AmeriCare that assures the provision of health insurance coverage to all residents, and for other purposes) merged with a revenue-neutral carbon tax like the bipartisan HR 3294 (To amend the Internal Revenue Code of 1986 to reduce social security payroll taxes and to reduce the reliance of the United States economy on carbon-based energy sources.).

Since the still open 2009 Budget Resolution allows for the Finance Committee to pass a bill by reconciliation, and since both the Social Security Act (Medicare is part of the SS Act) and the Internal Revenue Code squarely fall within Finance jurisdiction, there shouldn’t be any procedural issues with passing a revenue bill via reconciliation that, like Bush’s tax cuts amends the Internal Revenue Code, and like Clinton’s SCHIP program amends the Social Security Act.

Climate change legislation is important in its own right ( after all, it is the second biggest failure on the President’s agenda), but I’d amend the carbon tax provisions to reduce Medicare payroll taxes instead of Social Security payroll taxes. Although it’d make no difference economically for the carbon tax, this is supposed to be a healthcare bill. :o)

________________

From the MSM:

The Myth Of The Filibuster: Dems Can’t Make Republicans Talk All Night
By Ryan Grim, Huffingtonpost, February 23, 2009

The Case for Busting the Filibuster
by THOMAS GEOGHEGAN The Nation August 12, 2009

What Ails the Senate
by CHRISTOPHER HAYES The Nation November 4, 2009

White House won’t rule out budget reconciliation rules on healthcare
By Sam Youngman, The Hill, November 9, 2009

Calling the Filibuster Bluff
by Renée Loth. The Boston Globe, November 13, 2009

…A filibuster that doesn’t actually disrupt the Senate’s business doesn’t cost anything, so it’s easy to pull the trigger.

This so-called gentleman’s filibuster – all of the obstruction with none of the inconvenience – gives inordinate power to a few fence-sitters…

…But what Lieberman and Nelson are threatening is not a filibuster – it’s a filibluster. Why not call their bluff? Force a real filibuster, make Lieberman bring the business of the Senate to a screeching halt in order to defend insurance industry interests, and see how the American people respond. Show Nelson holding up his party’s most important legislation in a generation. And put the 40 Republicans on display as the party of No.

There’s some precedent for this approach. In 1995, House Speaker Newt Gingrich’s move to shut down the government in a high-stakes budget dispute with President Clinton backfired badly. When veterans couldn’t get their benefits and American families on vacation found the national parks shuttered, Gingrich discovered people liked their government after all. He withdrew.

The filibuster is an important democratic tool, a hedge against the tyranny of the majority. It shouldn’t be dumped, just restored to its former glory. It would be a boon for democracy, with more of the people’s business dragged out of clubby caucus rooms and onto C-Span. And more senators being called on to stand and deliver.

Did the invention of the airplane end the filibuster?
By Ezra Klein November 13, 2009

Tyranny of the Silent Filibuster
By Craig Crawford November 20, 2009

The History of the Senate Filibuster
By Rick Pildes, December 24, 2009

quoted by powwow:

As it turns out, the Senate actually functioned internally as a majoritarian institution throughout its history (the design of the Senate itself, of course, is not majoritarian, given its state-based representational structure). Rules to end filibusters were not needed before 1917 because the majority was able to control effectively the Senate legislative process. [And, I (pow wow) would argue, such cloture rules were probably really not needed since.] Thus, even narrow majorities were able to enact legislation, including controversial legislation. Intense minorities could, of course, filibuster; the effect of these filibusters was to delay legislation. But if the majority was committed to passing the legislation at issue, the bills generally passed. “[L]awmaking in the pre-cloture Senate was generally majoritarian when it came to significant legislation.” So argues the most significant modern book on the subject, Gregory Wawro’s and Eric Schickler’s book, Filibuster: Obstruction and Lawmaking in the U.S. Senate at 19 (2006), from which the information in this post is drawn.

[...]

Senators appreciated value in filibustering; that practice revealed important information about how strongly minorities felt about particular legislation or particular provisions. But if the majority had intense preferences for the legislation even in the face of these opposing signals, the majority was understood to have the right to enact its policies – and it was recognized that the majority, if necessary, would enforce that right by changing the Senate’s rules and practices. Faced with this reality, minorities would accede once they had made their point, and important legislation would often be enacted with little more than majority support. In other words, filibusters were means by which minorities tested the strength and intensity of the majority’s commitment; but if the majority was committed, legislation passed [by simple majority].

The rise of the filibuster: An interview with Barbara Sinclair
By Ezra Klein December 26, 2009

You’ve published a study showing that about eight percent of major bills in the 1960s faced filibusters or filibuster threats and 70 percent of bills in the current decade did the same. Tell me a bit about the methodology.

My definition of major legislation is as follows: the things that CQ lists as “legislation to watch.” It used to be called “major legislation.” in addition, bills that had what CQ called “key votes.”

That’s an agenda with about 40 to 60 pieces of legislation per Congress. It’s not naming post offices, but it’s not just Medicare either. I’ve been gathering this data over time, and I select Congresses and do a case study of each bill. The way in which I get those figures on the percentage of major measures that ran into some kind of extended debate problem is really from reading what various sources write about these bills, from CQ to the New York Times to the Congressional Record. I don’t just look at cloture votes.

Because you’re looking also at threatened filibusters?

Right, so if people put a hold on a bill. Or if the bill isn’t brought up due to the threat of a filibuster.

And is there a particular moment where the filibusters accelerate? Or is the rise gradual?

It’s gradual, to some extent. But in terms of its impact on legislation, it really has a big impact from the first Clinton Congress on. If one can say there’s a break point, that’s where filibusters become a regularly used partisan tool.

Previously, the filibuster frequently had some partisan element, but you’d have a lot of cases where individuals or small groups would hold them. But now it’s much more a tool of the minority party. And the minority party is organized and relatively large, even when it’s small by our standards. Forty Republicans is as small as it’s been in a long, long time. That still means if you really get the minority to hang together, everyone on the other side becomes key.

End the filibuster! An interview with Sen. Tom Harkin
By Ezra Klein December 26, 2009

Why It’s Bad News That the Health Care Conference Committee Will Be Held in Secret
By David Sirota, January 5, 2010

… if there is any hope of making a bill better in conference committee, that hope relies on the conference committee negotiations actually being open to the public. But that’s not guaranteed — not even close.

Sure, there is always a final conference committee vote — but the real, most pivotal work of ironing out the different bills can be done behind closed doors. On many conference bills, the one party in control holds secret meetings, and then all the public gets to see is one two-minute vote for final-passage and that’s it.

This doesn’t have to be the way it’s done — and in many cases it isn’t (I spent many a long night in contentious and controversial Appropriations conference committees when I worked on the Hill — and they were public). But on health care, it looks like the closed-door approach is now the way forward, according to some stenography by The New Republic’s Jonathan Cohn:

According to a pair of senior Capitol Hill staffers, one from each chamber, House and Senate Democrats are “almost certain” to negotiate informally rather than convene a formal conference committee. Doing so would allow Democrats to avoid a series of procedural steps — not least among them, a series of special motions in the Senate, each requiring a vote with full debate.
Cohn, regurgitating his Democratic sources’ spin without so much as a question, couches this turn of events as wonderful news because it will disenfranchise congressional Republicans and expedite the process. It’s a classic authoritarian argument. And as I wrote in a San Francisco Chronicle piece about American Czarism way back at the beginning of 2009, I’m someone who believes in democracy – so I’m not inclined to cheer at anyone’s disenfranchisement (I know, that sets me apart from the cynical and partisan DC chattering class). That’s particularly true when when said disenfranchisement impacts not just the GOP, but also rank-and-file progressives.

You see, if there was even a tiny chance this bill was going to get better in conference committee, that chance was, in part, reliant on progressive pressure on an open process. Ya know, pressuring individual conferees on specific amendments, etc. But if the conference negotiations take place in secret, that progressive public pressure is far harder to muster and to appropriately target.

Filibusters Could Be Fun
By Christopher Brauchli, January 6, 2010

Save the Senate: Bring Back the Filibuster
By Aaron Zelinsky January 7, 2010

quoted by powwow:

In recent times, Senators merely notify the Majority Leader of an intent to filibuster, and the Majority Leader delays further action unless he has sixty votes.

[...]

Senate filibusters used to require large amounts of time, energy, and dedication. Now they are the legislative equivalent of a Wal-Mart product, available at everyday low prices. The result has, unsurprisingly, been the universality of the modern filibuster, which requires no real commitment but the lifting of a senator’s finger.

To end legislative gridlock, Senator Reid should increase the cost of the filibuster, restoring the filibuster to its traditional status as a rare and elite commodity. Senator Reid can do this by forcing filibustering Senators to hold the floor and speak. This will not be easy. The Democrats must be available for quorum calls in the Senate, which means that senators will have to show up in the chamber when called.

[...]

The traditional, costly filibuster is both the historical and international norm. Many other legislatures with filibuster rules, such as the United Kingdom and New Zealand, require filibustering members to actually filibuster, rather than merely state their intent to do so.

In the United States, the filibuster has become the opposition’s free lunch. Senate Republicans rationally consume as much of the filibuster as possible. To make the Senate work again, Senator Reid should take away filibuster-lite and bring back the real deal [and thus the default expectation of simple-majority (not 60-vote-supermajority) passage of important legislation].

Mr. Smith Rewrites the Constitution
By THOMAS GEOGHEGAN NYT OP-ED January 11, 2010

Health Bill Can Pass Senate With 51 Votes, Van Hollen Says
By Jonathan D. Salant, Jan. 16, 2010

“Make Them Filibuster”
By Mark Tushnet Monday, January 25, 2010

Filibuster 2.0: How 41 Senators Control The Country Without Actually Filibustering
Ben Frumin, TPMDC, January 25, 2010

Senate is meant to operate this way
By Gary Andres, January 25, 2010

Why the filibuster is frustrating but necessary
By Ruth Marcus Wednesday, January 27, 2010

The Rise Of Cloture: How GOP Filibuster Threats Have Changed The Senate
Ben Frumin and Jason Reif, TPMDC, January 27, 2010

While Republicans spent the last several months threatening to filibuster the Democrats’ health care reform bill in the Senate, and Senate Majority Leader Harry Reid scrambled to secure 60 votes — only to have the whole fragile arrangement blow up when Republican Scott Brown won the Massachusetts senate election last week — we kept hearing that the relatively recent rise in filibuster threats was a bipartisan phenomenon. Both parties are guilty of this when they’re in the minority, we heard.

It’s true that there has been a decades-long uptick in the use of cloture filings — often to overcome filibuster threats — by whichever party is in the majority, but the best measurement of that trend shows an explosion since Republicans were consigned to minority status after the 2006 election.

Filibusters in the Senate require a 60-senator cloture vote to overcome — before the mid-1970s, cloture required a 67-senator cloture vote.

For decades, beginning with the introduction of cloture as a formal procedure more than 90 years ago, it was rare for senate majority leaders to file for cloture. As Senate historian Donald A. Ritchie told us Monday, it was just too tough to secure 67 votes — and thus very difficult to force the end of filibusters through cloture. From 1919 to 1970, cloture was never filed for more than seven times in a two-year Congress. You can see the Senate’s breakdown of the numbers here.

Things heated up about 35 years ago, when the Senate voted to change its cloture rules, lowering the filibuster-ending requirement from 67 votes to 60.

At the same time, the Senate was becoming more partisan than it had ever been, Ritchie said. Before the cloture change, strict party-line votes were relatively rare. But in the years that followed, the ideological spectrum of each party began to shrink, leading up to today, when, as Ritchie put it, “we have much more party discipline right now than we’ve ever had.”

With senators closely toeing the party line in a way that Ritchie said they rarely had before, senate majority leaders of both parties have in recent decades begun filing for cloture more and more frequently — largely as a way to gauge whether they have 60 votes for a bill before they expend time and effort on it on the Senate floor.

While Ritchie went to great pains in our discussion Monday to paint the rise of cloture as a bipartisan phenomenon, it’s not entirely clear that’s true. For instance, the two largest spikes in cloture filings in the last 20 years seem to be motivated, at least in part, by Republican obstructionism.

my comment from working thread #1:

… the way they have been discussed and presented, for example at tpm, is that of evidence of republican obstructionism in preventing legislation from having been passed (the graph showing numbers for: motions filed, votes on cloture and cloture invoked). but they don’t show any data for this congress. when i look at the actual list for the 111th congress, it looks like a bunch of cloture petitions were resolved by UC or by 60+ votes (also some “no votes”) but very few bills have been blocked (a less than 60 vote majority), so i don’t think i see a lot of examples of legislation not moving because cloture fails to pass with less than 60 votes. here’s the link:

http://www.senate.gov/pagelayout/reference/cloture_motions/111.htm

Krasno & Robinson: Fixing the Filibuster
By Jonathan Krasno and Gregory Robinson Special to Roll Call Jan. 29, 2010

Bring on the Filibuster
Editorial by THOMAS GEOGHEGAN & THE EDITORS The Nation February 4, 2010

You have defended the filibuster in the past, but your duty as Senate majority leader at the present moment is to restore majority rule. Right now, the Senate operates under a supermajority rule that the founders never intended and that has no precedent in the way the Senate used to operate. The problem is not the old-fashioned “talking filibuster” but the absence of the filibuster: it’s the need to find sixty votes to cut off debate even when there is no debate to cut off.

Certainly we should reform Senate Rule 22, which requires sixty votes to cut off debate, as Senator Tom Harkin has proposed. But the failure of nerve at the moment is not so much the failure to change Senate Rule 22 but the failure to make the Republicans debate at all.

Indeed, we are unlikely to succeed in changing Rule 22 unless you call the minority’s bluff. The way to end the virtual filibuster is to start forcing a real one, to take place in real time, with hour after hour of senators really talking. The only way to delegitimize the filibuster is to let the minority do it–let them do it over and over. Let them do it for trivial things. Let the country see the absurdity to which the procedural filibuster leads.

Reid’s about-face stuns Dems, W.H.
By LISA LERER & GLENN THRUSH 2/11/10

Senate Majority Leader Harry Reid led colleagues and the White House to believe he supported a bipartisan jobs bill — only to scuttle the plan as soon as it was released Thursday over concerns it could be used to batter Democratic incumbents, according to Senate sources.

Senate Finance Committee Chairman Max Baucus (D-Mont.) and Sen. Charles Grassley (R-Iowa) worked for weeks with Reid’s blessing and frequent involvement to craft an $85 billion jobs bill, a measure that seemed destined to break the partisan logjam that has ground the Senate to a halt.

But as Baucus, Grassley and President Barack Obama were preparing to celebrate a rare moment of bipartisan Kumbaya on Thursday, Reid stunned a meeting of Senate Democrats by announcing he was scrapping Baucus-Grassley, replacing it with a much cheaper, more narrowly crafted, $15 billion version.

“Grassley and three to four Republicans would have voted for it, but all the other Republicans would have beaten the living s—t out of us [during the 2010 midterms], claiming the bill was too bloated,” said a Democrat who supported Reid’s decision, explaining the leader’s logic.

On Health Care, Dems Lack GOP Grit
By Bruce P. Cameron, Consortium News, February 15, 2010

Dodd: Changing filibuster rules would be ‘foolish’
By Michael O’Brien, The Hill, February 17, 2010

So You Wanna Reform The Filibuster? Here’s How
Ben Frumin, TPMDC, February 22, 2010

Threatened use of the parliamentary delaying procedure — which requires 60 votes to overcome — has become increasingly common since Republicans returned to the minority.

Senate Democrats Want To Rein In Filibusters
by DAVID WELNA, npr, February 22, 2010

A reconciliation primer
By Ezra Klein, wapo, March 1, 2010

Reconciliation has, in general, been a Republican endeavor. Political scientist Joshua Tucker looked at the 19 times reconciliation was used between 1981 and 2005, and found that 14 of them were Republican initiatives. If you extend that analysis out to 2008, then 16 of 21 reconciliation bills were Republican.

Reconciliation isn’t historic, but Republican use of the filibuster is
By Ezra Klein, wapo, March 1, 2010

Bring Out the Cots
by Joe Klein Monday, March 1, 2010

Harry Reid has just issued a press release complaining about Senator Jim Bunning’s lunatic filibuster against the extension of unemployment benefits to those suffering through this awful recession.

A press release.

I will not link to it: you could probably write it yourselves, if you had a degree in phony political vitriol and free-range gaseosity.

Instead, I’ll join Karen Tumulty in calling for these bozos to force the issue: Make Bunning and the Republicans actually filibuster. I mean, if you really care about American workers, you should be willing to risk some all-night inconvenience. The people whose unemployment and COBRA insurance are running out are experiencing far worse.

GOP Wins Filibuster Gold Medal
By Jon Perr Tuesday Mar 02, 2010

________________

Karen Tumulty’s “Make ‘em Filibuster Campaign” at the Swampland:

Swampland posts tagged “filibuster

Oh, for Heaven’s Sake.
Posted by Karen Tumulty Tuesday, July 17, 2007

The Filibuster vs. the Pseudo-filibuster
Posted by Karen Tumulty Thursday, December 13, 2007

Revisiting the Filibuster
Posted by Karen Tumulty Monday, February 9, 2009

Latest Installment of Make ‘em Filibuster
Posted by Karen Tumulty Friday, November 13, 2009

Latest Latest Installment of the Make ‘em Filibuster Campaign
Posted by Karen Tumulty Tuesday, November 17, 2009

Rendell: “Make Them Filibuster”
Posted by KAREN TUMULTY Monday, January 25, 2010

Doris Kearns Goodwin: “Let Them Filibuster.”
Posted by Karen Tumulty Friday, January 29, 2010

Robert Byrd: Make Them Filibuster
Posted by Karen Tumulty Tuesday, March 2, 2010

________________

Some old news from 2005, 1988, and other blasts from the past:

The Politics: Resisting Change and Resisting Arrest (from feb 1988)
posted by PBS July 16, 1997

Senate Begins Filibuster on Campaign Funds
By IRVIN MOLOTSKY, Special to the New York Times. February 24, 1988

Filibuster on Campaign Spending Bill Ends
By IRVIN MOLOTSKY, Special to the New York Times. February 26, 1988

Search And Seizure on Capitol Hill
By Ed Magnuson, Hays Gorey and Ted Gup, Mar. 07, 1988

Reid threatens partial Senate shutdown
By Tom Curry National affairs writer msnbc.com March. 15, 2005

Ad wars mount as Republicans ready ban on Senate filibusters
By Charlie Savage, Globe Staff, April 21, 2005

Chances dim of averting filibuster showdown
By Tom Curry msnbc.com May 23, 2005

google timeline of “filibuster” in the news, 1800-2010.

________________

Quotes from Bryd, Feingold, and Gore:

Sen. Byrd calls proposed Democratic changes to filibuster rules ‘misguided’
By Michael O’Brien,The Hill, February 24, 2010

Sen. Robert Byrd warned Democratic colleagues against changing filibuster rules in order to advance their legislative priorities.

Sen. Robert Byrd (D-W.Va.) warned Democratic colleagues Wednesday against changing filibuster rules in order to advance their legislative priorities.

In a “Dear Colleague” letter dated Tuesday, Byrd, the longest-serving member of the Senate, said that the Senate’s rules on ending debate shouldn’t be changed, but he encouraged forcing senators to actually sustain debate in a real, live filibuster.

“I am sympathetic to frustrations about the Senate’s rules, but those frustrations are nothing new,” Byrd wrote. “However, I believe that efforts to change or reinterpret the rules in order to facilitate expeditious action by a simple majority, while popular, are grossly misguided.”

Some liberal Democrats have called for a change in the Senate’s filibuster rules, which require 60 votes to end debate on an issue. In recent years, the mere threat of a filibuster on a matter before the Senate has meant a de facto requirement that most votes in the Senate have to have 60 votes.

The frustration over the filibuster has been especially manifest in the healthcare debate, where all 41 Republicans, sticking together, have been able to sustain a filibuster.

Byrd said the solution to the Senate’s impasse would be to force Republican senators to actually filibuster — that is, continually talk and debate on the Senate floor without yielding.

“Senators are obliged to exercise their best judgment when invoking their right to extended debate,” Byrd said. ” They should also be obliged to actually filibuster — that is, go to the floor and talk, instead of finding less strenuous ways to accomplish the same end.”

Byrd: Keep the filibuster, but make ‘em talk … and talk … and talk
USA today Feb 24, 2010

In a letter to colleagues, Sen. Robert Byrd, D-W.Va., calls efforts to water down or eliminate the filibuster “grossly misguided.”

While describing himself as “sympathetic to frustrations with the Senate’s rules,” the self-appointed guardian of Senate lore and tradition defended the filibuster as a device designed to force lawmakers to take a long, slow look at legislation before passing it.

“The Constitution’s Framers intentionally designed the Senate to be a deliberative forum in which ‘the sober second thought of people might find expression,’ ” Byrd writes, quoting an 1897 article by Sen. George Hoar, a Massachusetts Republican. The title of Hoar’s article, by the way, was “Has the Senate Degenerated?” So concerns about the quality of debate are nothing new either.

Byrd does offer one idea for ending what he calls the “abuse” of the filibuster.

Essentially, a filibuster is an effort to talk a bill or nomination to death. Senators can talk as long as they want about anything they want unless 60 of the chamber’s 100 members vote to end debate and move to a vote.

But today, no one ever has to mount a marathon talk-a-thon like the one that Jimmy Stewart made famous in the 1939 film Mr. Smith Goes to Washington. The mere threat of a filibuster is enough to make Senate leaders rejuggle their calendars and move on to other, less controversial bills.

Byrd is calling for a return to the old-fashioned filibuster. Those who want to block legislation “should be obliged to go to the floor and talk, instead of finding less strenuous ways to accomplish the same end.”

Senator Byrd’s letter
by Senator Byrd. posted online by USA today Feb 24, 2010

Dear Colleague:

During my half-century of service in various leadership posts in the U.S. Senate – - including Minority Leader, Majority Leader, Majority Whip and now President Pro Tempore – - I have carefully studied this body’s history, rules and precedents. Studying those things leads one to an understanding of the Constitutional Framers’ vision for the Senate as an institution, and the subsequent development of the Senate rules and precedents to protect that institutional role.

I am sympathetic to frustrations about the Senate’s rules, but those frustrations are nothing new. I recognize the need for the Senate to be responsive to changing times, and have worked continually for necessary reforms aimed at modernizing this institution, using the prescribed Senate procedure for amending the rules.

However, I believe that efforts to change or reinterpret the rules in order to facilitate expeditious action by a simple majority, while popular, are grossly misguided. While I welcome needed reform, we must always be mindful of our first responsibility to preserve the institution’s special purpose. The occasional abuse of the rules has been, at times, a painful side effect of what is otherwise the Senate’s greatest purpose – the right to extended, or even unlimited, debate.

If the Senate rules are being abused, it does not necessarily follow that the solution is to change the rules. Senators are obliged to exercise their best judgment when invoking their right to extended debate. They also should be obliged to actually filibuster, that is go to the Floor and talk, instead of finding less strenuous ways to accomplish the same end. If the rules are abused, and Senators exhaust the patience of their colleagues, such actions can invite draconian measures. But those measures themselves can, in the long run, be as detrimental to the role of the institution and to the rights of the American people as the abuse of the rules.

I hope Senators will take a moment to recall why the devices of extended debate and amendments are so important to our freedoms. The Senate is the only place in government where the rights of a numerical minority are so protected. Majorities change with elections. A minority can be right, and minority views can certainly improve legislation. As U.S. Senator George Hoar explained in his 1897 article, “Has the Senate Degenerated?”, the Constitution’s Framers intentionally designed the Senate to be a deliberative forum in which “the sober second thought of the people might find expression.”

Extended deliberation and debate – when employed judiciously – protect every Senator, and the interests of their constituency, and are essential to the protection of the liberties of a free people.

KILL THE FILIBUSTER? Senate’s arcane rule should go
By GEORGE WAGNER, Jan. 25, 2010

I recently attended one of Sen. Russ Feingold’s listening sessions at Washington High School in Milwaukee. While most of the discussion focused on the health care legislation pending in Congress, one questioner asked if Feingold would support repealing U.S. Senate Rule 22, which requires a supermajority of 60 senators to pass most legislation.

This is the arcane rule that has caused a political tsunami with the Senate election of Republican Scott Brown from Massachusetts. With that election, the Democrats lost their already tenuous hold on the 60 votes they need to pass almost anything.

I was surprised that Feingold said that he opposes such a change. He told a story from his early days in the Senate when he was asked to keep filibustering by Sen. Ted Kennedy to prevent the Reagan administration from gutting the labor laws that were then on the books. Feingold went on to say that the founders of the nation understood the need to have a governing body, like the Senate, that could take its time deliberating.

Feingold responds to deficit woes at Tomah listening session
By Steve Rundio Tomah Journal/Monitor-Herald, Monday, February 8, 2010

Feingold agreed with a speaker’s frustration about filibusters and other tactics used to block legislation and presidential appointments. However, Feingold doesn’t want to eliminate the filibuster, which requires 60 votes to end debate.

“You do want things slowed down — trust me,” he said.

Feingold favors a return to a more traditional filibuster that requires senators using the tactic to remain on the Senate floor.

Restoring the Rule of Law
By Al Gore, speech at DAR Constitution Hall in Washington, DC, January 16, 2009

Whenever power is unchecked and unaccountable it almost inevitably leads to mistakes and abuses. In the absence of rigorous accountability, incompetence flourishes. Dishonesty is encouraged and rewarded.

It is often the case that an Executive Branch beguiled by the pursuit of unchecked power responds to its own mistakes by reflexively proposing that it be given still more power. Often, the request itself it used to mask accountability for mistakes in the use of power it already has.

Moreover, if the pattern of practice begun by this Administration is not challenged, it may well become a permanent part of the American system.

…too many Members of the House and Senate now feel compelled to spend a majority of their time not in thoughtful debate of the issues, but raising money to purchase 30 second TV commercials.

The role of authorization committees has declined into insignificance. The 13 annual appropriation bills are hardly ever actually passed anymore. Everything is lumped into a single giant measure that is not even available for Members of Congress to read before they vote on it.

Members of the minority party are now routinely excluded from conference committees, and amendments are routinely not allowed during floor consideration of legislation.

In the United States Senate, which used to pride itself on being the “greatest deliberative body in the world,” meaningful debate is now a rarity. Even on the eve of the fateful vote to authorize the invasion of Iraq, Senator Robert Byrd famously asked: “Why is this chamber empty?”

________________

Wikipedia:

Standing Rules of the United States Senate

Standing Rules of the United States Senate, Rule XXII

Filibuster

Reconciliation (United States Congress)

________________

Academic and related sources:

FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE, by Gregory J. Wawro and Eric Schickler.
Reviewed by Frances E. Lee, Department of Government and Politics, University of Maryland

via powwow:

Wawro and Schickler thus look to history to gain a better understanding of how institutional rules and procedures affect legislative policymaking. By extending their analysis of Senate obstruction back in time, they allow rules and precedents to vary and thereby gain better analytical traction on their puzzle. [...] In the process, they shed new light on Senate history and on the recent controversy over Senate confirmation of judicial nominees.

[...]

Wawro and Schickler come to a counterintuitive conclusion: majorities were paradoxically better able to rule in the 19th century Senate than in the contemporary Senate, despite the lack of a cloture mechanism then and the existence of one now. They argue that narrow majorities in the 19th century could threaten to enact precedents that would restrict obstruction, and these threats led legislative minorities to exercise self-restraint. Wawro and Schickler contend that these threats were credible in part because 19th century senators could look to the House of Representatives for an example of how floor majorities could use procedural [*489] rulings to limit obstruction (pp.62-65). They argue that this strategy was also a viable option in the Senate.

[...]

In their study of the 19th and early 20th century Senate, they strive to document that a sustainable majority was never thwarted by minority obstruction on a significant, salient matter. Southern filibusters were not the cause of the Senate’s failure to act on civil rights because not even a simple majority of senators supported cloture on any civil rights measure considered between 1917 and 1964 (p.263). Although a minority successfully delayed the passage of the Bank Bill of 1841, the minority Democrats permitted the passage of the Whig program in the end (p.73). They argue that the Federal Elections Bill of 1891 was not defeated by minority obstruction, but by the unraveling of majority support for the bill as members of the majority party defected (p.77).

This is a bold argument, and it stands in opposition to much scholarship on the Senate, including the Binder (1997) and Binder and Smith (1997) accounts of institutional development. Wawro and Schickler do not view the Senate’s failure to adopt majoritarian procedures as a “path dependent” consequence of the lack of a procedural motion enabling a simple majority to close off debate. Instead, they contend that Senate rules have persisted because Senate majorities prefer to keep them that way. – Frances E. Lee

CQ Electronic Library: Filibuster. cite Filibuster. (2003). In D. R. Tarr, & A. O’Connor (Eds.), Congress a to z. Washington: CQ Press. Retrieved April 13, 2005, from CQ Electronic Library, CQ Encyclopedia of American Government

SOUTHERN OPPOSITION TO CIVIL RIGHTS IN THE UNITED STATES SENATE: A TACTICAL AND IDEOLOGICAL ANALYSIS, 1938-1965
By Keith M. Finley August 2003

pages 327-8:

Although some caucus members blustered that they would continue the fight by seeking to repeal the bill through a national referendum or through litigation, these efforts went nowhere. Just as southerners in the nineteenth century accepted the end of slavery, most of Dixie’s twentieth century denizens accommodated themselves, however reluctantly, to the demise of their racial order. The relative peace that followed the bill’s passage indicated that the campaign of massive resistance always had a smaller number of faithful adherents than many realized. Had the majority of white southerners favored defiance against federal efforts to compel integration, then surely the 1964 Civil Rights Act would have resulted in unparalleled turmoil. Richard Russell, perhaps more than any other member of the southern caucus, assisted in preventing the collapse of Jim Crow from culminating in widespread bloodshed. Rather than command southern whites to resist the legislation, he adopted the ideal of his boyhood hero Robert E. Lee by urging them to accept defeat. Like his caucus mates, he noted, “our ranks were too thin and our resources too scanty.” And like them, he too requested that southerners comply with the verdict. “All that we can do now is swallow hard and hold our heads high, knowing that we did everything humanly possible to further the cause of constitutional government.” He encouraged his fellow Georgians “to refrain from violence in dealing with this act.” “The die is cast now and there is nothing that can be done about it.” No fire and brimstone vow to continue the battle for white supremacy, the South’s premier national spokesman for segregation preached restraint and for the most part the southern populace honored his request. Russell fully believed that Hubert Humphrey’s handling of the civil rights fight ultimately played the largest role in limiting southern violence. By allowing the caucus considerable time to debate the measure, the Minnesotan helped white southerners to recognize that their region had been accorded the necessary freedom to state its case in the court of public opinion. As a result, the defenders of segregation could not claim that the measure was railroaded through the Senate. Being an honorable people, the region’s white citizenry, Russell believed, would accept the chamber’s verdict because it resulted from a fair fight in which their intrepid senators had an unfettered forum to defend segregation.

“THE CONSTITUTIONAL OPTION TO CHANGE SENATE RULES AND PROCEDURES: A MAJORITARIAN MEANS TO OVERCOME THE FILIBUSTER”
By Martin Gold (a former Frist aide) and Dimple Gupta (via beowulf @10)

Senate procedure and practice
by Martin Gold

page 44 (see powwow):

In general, the Senate operates on the foundation of unlimited debate. This principle is fundamental to the right to filibuster. Senate rules do not specifically permit filibusters; rather, extended debate is possible in the absence of debate restrictions.
- Martin Gold

Rational Behavior or the Norm of Cooperation?: Filibustering Among Retiring Senators
L. Marvin Overby and Lauren C. Bell, The Journal of Politics, August 2004, 66: 906-924

Congressional Research Service (CRS) legislative politics specialist Richard S. Beth adds that “the first thing we don’t know about filibusters is how many there are” (Beth 1995, 8).

Politics or principle?: filibustering in the United States Senate
By Sarah A. Binder, Steven S. Smith. Brookings Institution Press (November 1996)

pages 15-17:

Senators seeking to block action on a particular measure know that increased time pressures will often work in their favor: the heavier the agenda, the less likely that party leaders will be able to afford the time to wait out filibustering senators. As agendas expand and time constraints increase, other senators’ legislative agendas are likely to be squeezed as well. Under these conditions, most senators–including majority party leaders–have an incentive to give in more swiftly to filibustering senators and even to those simply threatening to filibuster.

Ironically, the efforts of Senate Democratic leaders in the 1970s to reduce these time constraints and the filibustering that ensued may have further fueled filibustering. Under Majority Leader Mike Mansfield (Democrat of Montana), a “tracking” system devised by then majority whip Robert Byrd (Democrat of West Virginia) was put into place to better structure the consideration of legislation on the floor. Tracking allows the majority leader–with unanimous consent of the agreement of the minority leader–to have more than one bill pending on the floor as unfinished business. Before the introduction of tracking, a filibuster would stop the Senate from moving on to any other legislative activity. With a two- (or more) track system, the Senate simply puts aside the filibustered measure and moves on to other legislation. To some degree, this flexibility enabled the Senate to cope with its burgeoning workload in the 1970s. But by making filibusters more tolerable and less costly to the filibustering senators–other senators would no longer be forced to hold the floor continuously to block legislation–tracking also seems to have sparked an increase in filibustering.27 The increase in legislative business, in other words, has made filibustering more successful and less costly–and hence more common–despite the tactical adjustments of party leaders.

A greater opportunity to filibuster, however, is in itself insufficient to encourage obstructionism; minority coalitions also need a strong enough political incentive to exploit their rights. Thus, just as the increase in partisanship in the late 1800s helped fuel filibusters by partisan minorities, increasing partisan ship appears to have encourage more obstructive behavior in recent decades. Although absolute levels of partisanship remain low compared with their levels at the turn of the century, differences between the two parties have climbed fairly steadily since 1967 (figure 1-2.28 Polarized conflict between the two parties, particularly in the 1980s certainly encouraged the minority party to exploit its parliamentary rights. As the two parties become internally more cohesive and the differences between them grew larger, holding together a party-backed filibuster became significantly easier. The result is seen clearly in the distinctly partisan alignment of senators on filibustered bills after 1980 (see chapter 4). Although an expanded workload makes possible obstructive strategies that might otherwise have little bite in a chamber with a limited legislative agenda, the polarization of senators’ preferences in recent decades has helped to increase party-based obstructionism against the majority party.

Such partisanship has also helped to fuel what might be called a parliamentary arms race. Republicans, for example, defended their use of the filibuster to block much of President Bill Clinton’s congressional agenda in 1994 on the grounds that the Democrats had done the same to George Bush and the Republicans in 1992. And Democrats filibustered regulatory reform, congressional term limits, and other aspects of the Republican agenda in 1995 and 1996, knowing that Republicans had used the filibuster effectively against the Democrats in 1994. As on Senate observer noted, “Once parliamentary strategies such as these have been unleashed, they–like the atom bomb–cannot be uninvented.”29 What seems like an extreme use of the filibuster at one time often becomes a routine strategy later on. Such a dynamic likely fueled the initial increase in filibustering in the early 1970s. As some senators started to filibuster measure other than civil rights bills–such as liberal Democrats filibustering Nixon administration initiatives–other senators quickly followed suit.

Another striking characteristic of the Senate’s political environment in recent decades has been the explosive expansion in the Washington policy community.30 As government involvement in the economy expanded with the advent of Great Society programs in the 1960s and the tackling of other economic, consumer and environmental issues in the 1970s, these new programs spawned innumerable interest groups–each with a stake in the continued involvement of the federal government and the health of the programs it created. Expansion of the national agenda–and the conflict it often engendered–after the prosperity following World War II, in other words, helped spur the development of an immense, active, and interested policy community. The rewards for legislative activism from those interests outside the chamber have vastly reduced the costs incurred by senators seeking either to shape or to block the course of Senate action. Encouragement from external groups, in other words, has given senators and incentive to exploit their procedural rights, sometimes leading them to block legislation with the filibuster or with holds and at other times leading them to use procedural prerogatives to force the Senate to consider issues of importance to parochial, partisan, or national constituencies. Increased time constraints within the Senate have only made it easier for senators to exploit chamber rules to pursue their political goals.

Still other features of the Senate’s political environment encourage senators to strike out on their own.31 Modern Senate campaigns are run on contributions from thousands of individuals and hundreds of political action committees. Free time on television–interview programs, evening news programs–is in short supply This environment gives senators an extraordinary incentive to strike out legislatively on their own and to distinguish themselves in the legislaitve arena. Filibusters and other forms of legislative obstructionism provide a means for individual senators to champion a cause and attract support, and they may encourage oneupmanship amoung senators. Only when the effects of such activsim run counter to the political interests of enough senators has the Senate been willing to protecct specific policy matters from the uncertainty of a future filibuster. Budget, trade, and a host of other issues have been protected from filibusters by placing into statute strict limits on their debate (see chapter 6). Such expedited procedures have become an increasingly popular tool for the Senate to limit potential damage of a filibuster.

pages 85-86:

The Substance and Significance of Issues Subject to Filibusters

Historically, civil rights issues–extension of slavery to the West, voting rights, antilynching measures, and so on–have been the single most common subject of filibusters. Yet civil rights measures have not constituted even a majority of the measures that have been the targets of filibusters. Figure 4-1 shows the number of filibusters that aimed at civil rights and non-civil rights legislation in each Congress since the first known filibuster in 1837.6 Overall, 45 civil rights measures and 289 non-civil rights measures were the targets of filibusters through 1992. Civil rights filibusters dominated in two periods–the period before 1880 and the years between 1937 and 1967–but the number of non-civil rights filibusters far exceeded the number of civil rights filibusters in the 1881-1936 and post 1967 period.

If major civil rights bills constitute the most important issues, figure 4-1 suggests that many lesser issues, were the targets of filibusters in the 1881-1936 period. Almost as much range in the significance of filibustered legislation can be fuund in that period as in recent decades. Several tariff and general appropriations bills were filibustered, most of substantial policy significance. Others involved truly narrow, parochial concerns. Two brief examples illustrate the range.7

The 1915 ship subsidy bill proposed by President Woodrow Wilson would have given the government authority to purchase merchant ships for the course of World War I in Europe. The president was prompted to make the proposal after administation efforts to jawbone private shipping companies to reduce their rates proved ineffective. The shortage of vessels had bid up rates and was hurting exporters who were eager to supply Europeans in need of the goods. Republicans and some Democrats came to the defense of the shipping industry and charged that the plan would involve the United States with belligerents. Proponents finally gave up their effort to overcome a filibuster that stretched over thirty-three calendar days.8 By any standard, the ship subsidy bill was an important bill that had no connection to civil rights and yet was reasonably significant measure in its day.

Binder and Smith, Figure 4-1

pages 87-88:

Moreover, the incivility often associate with the use of the filibuster in recent decades is not new, as is evident from Senate activities during the last two decades of the nineteenth century:

If dilatory tactics upon the Senate floor, in creasing in turbulence and boldness for more than fifty years, had largely been fruitless expenditures of energy in a parliamentary sense, the closing decades of the nineteenth century reveal another story. Tactics remained essentially the same, but boldness gave way to ruthlessness, and obstruction began to be bounded only by the daring ingenuity of its designers. If courtesy required restraint, it was forgotten; if dignity demanded moderation, it was sacrificed to political or sectional advantage. With the determination never to surrender short of sheer physical exhaustion came success for the devotees of filibustering.10

In recent decades the Exon-Zorinsky filibuster is only the tip of the iceberg. In fact, as discussed further in chapter 5, the effects of the filibuster on Senate policymaking have been so pervasive in recent decades that they cannot be easily quantified. What can be said, however, is that the emergence of filibusters on quite trivial matters in recent decades should not be taken to signify that all or most filibusters are without substantial policy import. To the contrary, the number of filibusters directed at major legislation, as nearly as nearly any congressional observer would define the term, has been substantially larger since the late 1960s than at any other time. The may not measure up to the Compromise of 1850 in importance, but many surely constitute major policy statements with substantial consequences for the nation.

As explained in chapter 3, intense partisanship, an expanding workload, and even the physical condition, in the Senate chamber may have contributed to the surge in filibusters at the end of the nineteenth century. Figure 4-1 adds something more to take into account: the quiet period between 1937 and 1967. During that period, filibusters were somewhat less frequent than at the turn of the century, and the majority of filibusters did indeed concern civil rights legislation. Why did filibustering fade during this period except for civil rights measures?

The answer, in our view, lie, in the distribution of power within the Senate during the 1937-67 period: for most of this period, the Senate was dominated by the “conservative coalition.”11 Beginning in the late 1930s, southern Democrats became more conservative, in relation to other senators, on most issues, and more frequently joined with Republicans to form a conservative coalition against northern Democrats and a handful of Republicans.12 Historian James Patterson observed, “So long as the New Deal did not disturb southern agricultural, industrial, or racial patterns, these leaders would support it, sometimes with enthusiasm. But if and when the northern wing of the party began to dominate (as it did after the 1936 election), a certain degree of friction was almost inevitable.”13 In fact, as southerners shifted in a conservative direction after the 1936 election, the overall ideological balance in the Senate shifted in the same direction.14 This conservative coalition proved remarkably successful (see figure 4-2).

page 90:

…partisanship and filibusters frequently were a matched pair in the late ninetheenth and early twentieth century, and they occurred on important, not-so-important, and trivial matters. Contrary to recent claims about use of the filibuster in the 1980s an 1990s, the partisan filibuster is not new to the Senate.

pages 98-99:

Arguments about cloture and small-state interests usually stimulate a little arithmetic about the potential influence of large states in the House and small states in the Senate. For example, in the 104th Congress, representatives from as few as nine states could constitute a majority in the House, while senators from states with little more than 10 percent of the nation’s population could constitute a blocking minority under the Senate’s cloture rule. The former is emphasized by senators from small states; the latter is emphasized by senators favoring cloture reform.24

Call to order: floor politics in the House and Senate
By Steven S. Smith. Brookings Institution Press (June 1989)

pages 94-119:

Developments on the Senate’s floor must be viewed in the context of the Senate’s own web of formal rules and informal practices. As in the House, procedural rules and practices in the Senate are much more than the arcane and somewhat mysterious backdrop for legislative battles. They are tools employed by combatants to gain advantage over each other. Three features of the Senate’s rules are of special importance: the cloture rule, the provision for suspending the rules by unanimous consent, and the absence of a germaneness rule. These features expand the ways rank-and-file senators can influence policy on the floor far beyond their ability to offer amendments.

Central to the individual senator’s power is the ability to ronduct unlimited debate–to filibuster. The Senate’s Rule XXII provides that only an extraordinary majority may invoke cloture to cut off debate. Once cloture is invoked, amending activity is limited to germane amendments that already have been proposed7. Even if a sufficient number of senators favor invoking cloture, the rule is somewhat cumbeTlmmeand time-consuming to employ. Under the current rule, sixteen senators must sign the cloture motion, the motion must layover one calendar day before a vote is taken, and, if the motion is approved by at least sixty senators, another thirty hours of consideration is permitted. As a result, the majority leader and most senators seek to forestall filibusters by compromising with the senators who threaten to filibuster or by setting aside the disputed measure or provision, at least temporarily.

… During the 19605 and 1970s the tremendous growth in the size of the congressional agenda and
the associated expansion of floor amending activity intensified scheduling problems. The Senate moved 10 sessions of more than 300 days for the first time in the early 19605 and has maintained that pace since then. Under these conditions, a filibuster of even moderate length exacts a heavy price on the Senate. Senators are forced to spend time near the floor answering endless quorum calls and voting on the procedural motions of the obstructionists. Committee business, trips home, and other activitit’s may be disrupted. A backlog of legislation awaiting floor consideration may be created. As time became a scarce commodity, the leverage gained by carrying out a filibuster or threatening to do so increased, and more senators found the filibuster a useful legislative weapon.

Responses to the growth of filibusters came in two forms. First, repeated efforts were made to modify Rule XXII. which since 1959 had required two-thirds of those prt’Sent and voting to invoke cloture. These were attempts both to reduce the number of senators required to invoke cloture and to make a successful cloture vote effective in stopping debate. At first, such efforts were led by liberals seeking to break conservative filibusters on civil rights issues. But in the 1970s, frustration with filibusters broadened the base of support for reform. In 1975 the Senate changed the 1959 rule to require that thrff-fifths of the entire membership support cloture, except on measures changing the Senate’s standing rules, in which case the old requirement still applied. But the new rule allowed “postdoture filibusters” of innumerable procedural motions because it did not count procedural motions against a one-hundred-hour limit on debate follOWingcloture. The rule was tightened in 1979 to include all activity in the one-hundred-hour limit. In 1986, as a part of the package providing for televised floor sessions, the Senate further reduced the burden of postcloture consideration by restricting it to thirty hours.

Second, floor leaders made tactical adjustments to individual filibusters.12 Exhausting the obstructionists by around-the-clock scssions was attempted by Majority Leader Mike Mansfield in the 1960s and a few times by his successor, Robert Byrd. However, a large minority organized into shifts can withstand such an assault. At times Mansfield sought multiple cloture votes, thereby repeatedly testing the obstructionists’ political strength. While such a tactic helped to demonstrate the leader’s resolve, its success ultimately depended on changing votes and thus it seldom succeeded. As a third approach, Mansfield, with Byrd’s help, devised a “track system” in which the Senate would set aside the measure subject to a filibuster in order to consider other legislation. The procedure requires unanimous consent, and so is not always available, but when unanimous consent could be achieved to place the filibustered measure on a separate track, scheduling difficulties for other legislation could be minimized.

These formal and informal adjustments had a necessarily limited effect. They did not reduce the size of the Senate’s policy agenda, so even streamlined filibusters still imposed serious burdens on the Senate schedule. Moreover, an extraordinary majority still was required to invoke cloture. And, in some respects, the adjustments served to reduce interpersonal pressures against filibustering. For senators peripheral to the fight on a filibustered measure, separate tracking made filibusters more tolerable, made them less resentful of the filibustering senators, and even may have reduced the incentive to vote for cloture. And for the filibustering senators, tracking may have improved the chances of success and reduced the costs of filibustering. The net result appears co be greater exploitation of this procedural weapon and the further acceptance of the filibuster as a component of senators’ parliamentary arsenals.13

For majority leaders, the desire to avoid filibusters, patticularly unanticipated ones, and pressures to move ftoor business along expeditiously put a premium on getting consent to limit debate. Because Senate rules do not provide limits on debate for most matters, unanimous consent must be given to establish some constraints. This is made possible by Senate Rule V, which provides that “any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.”17 Agreements to limit debate or otherwise structure floor consideration of measures and amendments have been labeled “complex unanimous consent agreements” in recent years. The majority leader assumes primary responsibility for crafting and gaining approval of such agreements.

In addition to limiting debate, unanimous consent agreement may impose a germaneness requirement on floor amendments, a requirement that is not provided in the chamber’s rules except for general appropriations bills. Without a restraining agreement, senators are free to offer an amendment on any subject to most measures. The text of entire hills may be considered as amendments to other measures, giving senators a ready-made avenue for circumventing committees and raising issues on the floor. The absence of a germaneness rule greatly increases uncenainty about floor action, enhances the ability of senators to pursue their individual interests, and expands the number of possible subjects for filibusters on any measure. Therefore, gaining unanimous consent to limit or bar nongermane amendments often is a high priority of leaders and bill managers.

Partisanship and Procedural Battles in the U.S. Senate, 1960-2010
By Steven S. Smith


The Past, Present, and Future of the Filibuster
March 12, 2010 public discussion at AEI CSPAN archive video: 1 hour, 27 minutes)
participants: Karlyn Bowman (AEI, introduction), Gary Andres (Dutko Group, panelist), Sarah Binder (Brookings Institution, panelist), Robert Dove (George Washington University, panelist), Norman J. Ornstein (AEI, panelist), John C. Fortier (AEI, Moderator)

Panelists talked about the Senate filibuster rule. Topics included the increase in cloture motions in recent years, and the origins, use, and consequences of the filibuster. Former Senate parliamentarian Robert Dove in his opening remarks defended the filibuster. Following their remarks, panelists responded to audience members questions. Senate historian Don Ritchie asked the first question.

Filibustering: A Political History of Obstruction in the House and Senate
by Gregory Koger (June 1, 2010 publication, FDL Book Salon scheduled for Sunday, June 6, 2010 5pm ET)

________________

From House.gov references:

ESTABLISHMENT OF THE CLOTURE RULE

The 1917 cloture rule applied only to debate on measures, and not to debate on the motion to proceed (still fully debatable). Over the following three decades, some filibusters were directed against the motion to proceed rather than against the measure itself. These filibusters could be overcome only through application of the two speech rule. Revisions to the rule in 1949 and 1959 provided a means to limit consideration of any debatable question.

THE BUDGET RECONCILIATION PROCESS

SUMMARY OF THE BYRD RULE

________________

From Senate.gov references and history:

filibuster — “Informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.”

Senate Rules and Procedure

Enactment of a Law

Legislative Process: How a Senate Bill Becomes a Law

Filibuster and Cloture — very brief history

Cloture Motions – 111th Congress

Senate Action on Cloture Motions

June 10, 1964 Civil Rights Filibuster Ended — very brief history

________________

From the Senate Committee Rules and Administration:

Standing Rules of the Senate


Rule XIX — DEBATE

1. (a) When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.

(b) At the conclusion of the morning hour at the beginning of a new legislative day or after the unfinished business or any pending business has first been laid before the Senate on any calendar day, and until after the duration of three hours of actual session after such business is laid down except as determined to the contrary by unanimous consent or on motion without debate, all debate shall be germane and confined to the specific question then pending before the Senate.


Rule XXII — PRECEDENCE OF MOTIONS

1. When a question is pending, no motion shall be received but

To adjourn.

To adjourn to a day certain, or that when the Senate adjourn it shall be to a day certain.

To take a recess.

To proceed to the consideration of executive business.

To lay on the table.

To postpone indefinitely.

To postpone to a day certain.

To commit.

To amend.

Which several motions shall have precedence as they stand arranged; and the motions relating to adjournment, to take a recess, to proceed to the consideration of executive business, to lay on the table, shall be decided without debate.

2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

________________

CRS Reports for Congress:


CRS RL30360 — “Filibusters and Cloture in the Senate”

Summary page:

The filibuster is widely viewed as one of the Senate’s most characteristic procedural features. Filibustering includes any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote. The possibility of filibusters exists because Senate rules place few limits on Senators’ rights and opportunities in the legislative process.

In particular, a Senator who seeks recognition usually has a right to the floor if no other Senator is speaking, and then may speak for as long as he or she wishes.

page CRS-2:

The Right to Debate

The core rule of the Senate governing floor debate is paragraph 1(a) of Rule XIX, which states that:

When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall
interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.

This is essentially all that the Senate’s rules have to say about the right to speak on the floor, so the rule is just as important for what it does not say as for what it does say. The lack of discretion by the chair in recognizing Senators, and the lack of time limits on debate, combine to create the possibility of filibusters by debate.

pages CRS-3, 4:

The Right to Speak at Length and the Two-Speech Rule

Under Rule XIX, unless any special limits on debate are in effect, Senators who have been recognized may speak for as long as they wish.2 They usually cannot be forced to cede the floor, or even interrupted, without their consent. (There are some exceptions: for example, Senators can lose the floor if they violate the Senate’s standards of decorum in debate, or, as discussed later, they may be interrupted for the presentation of a cloture motion.)

Rule XIX places no limit on the length of individual speeches or on the number of Senators who may speak on a pending question. It does, however, tend to limit the possibility of extended debate by its provision that “no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.” This provision, commonly called the “two-speech rule,” limits each Senator to making two speeches per day, however long each speech may be, on each debatable question that the Senate considers. A Senator who has made two speeches on a single question becomes ineligible to be recognized for another speech on the same question on the same day.

The “day” during which a Senator can make no more than two speeches on the same question is not a calendar day, but a legislative day. A legislative day ends only with an adjournment, so that, whenever the Senate recesses overnight, rather than adjourning, the same legislative day continues into the next calendar day. A legislative day may therefore extend over several calendar days. The leadership may continue to recess the Senate, rather than adjourning, as a means of attempting to overcome a filibuster by compelling filibustering Senators to exhaust their opportunities of gaining recognition.

Senators rarely invoke the two-speech rule because they generally do not believe that there is any need to do so. Sometimes, however, they may insist that the two- speech rule be enforced, as a means of attempting to overcome a filibuster. On such occasions, nevertheless, Senators often can circumvent the two-speech rule by making a motion or offering an amendment that constitutes a new and different debatable question. For example, each Senator can make two speeches on each bill, each first-degree amendment to a bill, and each second-degree amendment to each of those amendments as well.

In recent practice, the Senate considers that being recognized and engaging in debate constitutes a speech. The Senate, however, does not consider “that recognition for any purpose [constitutes] a speech.” Currently effective precedents have held that “certain procedural motions and requests were examples of actions that did not constitute speeches for purposes of the two speech rule.” These matters include such things as making a parliamentary inquiry and suggesting the absence of a quorum.3 Nevertheless, if a Senator is recognized for a substantive comment, however brief, on the pending question, that remark may count as a speech.

footnote for page CRS-4:

   3 “Therefore, the two speech rule requires not a mechanical test, but the application of the rule of reason.” Riddick’s Senate Procedure, pp. 782-783.

page CRS-4,5:

The Motion to Table

There is one way in which the Senate can end debate on a question even though there may be Senators who still might want to speak on it. During the debate, it is normally possible for a Senator to move to table the pending question (more formally, to lay the question on the table). The motion is not debatable, and requires only a simple majority vote to be adopted. In the Senate, to table something is to kill it. So when the Senate votes to table a matter, it thereby disposes of the matter permanently and adversely. The Senate frequently disposes of amendments by voting to table them, rather than by taking what often are called “up or down” votes to agree to (or not agree to) the amendment itself.

[...]

The motion to table, however, offers no means for supporters of a matter to overcome a filibuster being conducted against it through extended debate. If the Senate agrees to a motion to table, the debate is brought to an end, but only at the cost of defeating the matter. If the Senate votes against the tabling motion, the matter remains before the Senate, and Senators can resume debating it at length.

Instead, for purposes of overcoming filibusters, the chief use of the motion to table arises when the filibuster is being conducted through the offering of potentially dilatory amendments and motions. For example, supporters of a filibuster may offer amendments in order to renew their right to recognition under the two-speech rule. Each time the Senate tables such an amendment, it can continue debate on the underlying bill, or at least can go on to consider other amendments.

page CRS-6,7:

Quorums and Quorum Calls

There are ways other than debate by which Senators can delay and sometimes even prevent the Senate from voting on a question that it is considering. For example, each amendment that is offered on the Senate floor must be read in full before debate on it can begin, although the Senate usually agrees by unanimous consent to waive the reading. In addition, quorum calls can be demanded not for the purpose of confirming or securing the presence of a quorum, but in order to consume time.

A Senator who has been recognized can “suggest the absence of a quorum,” asking in effect whether the Senate is complying with the constitutional requirement that a quorum—a majority of all Senators—be present for the Senate to conduct business. The presiding officer normally does not have the authority to count to determine whether a quorum actually is present (which is rarely the case), and so directs the clerk to call the roll.

[...]

During a filibuster, however, the clerk may be directed to call the roll more rapidly, as if a rollcall vote were in progress. Doing so reduces the time that the quorum call consumes, but it also creates the real possibility that the quorum call may demonstrate that a quorum in fact is not present. In that case, the Senate has only two options: to adjourn, or to take steps necessary to secure the presence of enough absent Senators to create a quorum. Typically, the majority leader or the majority floor manager opts for the latter course, and makes a motion that the sergeant at arms secure the attendance of absent Senators, and then asks for a rollcall vote on that motion. Senators who did not respond to the quorum call are likely to come to the floor for the rollcall vote on this motion. Almost always, therefore, the vote establishes that a quorum is present, so the Senate can resume its business without the sergeant at arms actually having to execute the Senate’s directive.

This process also can be time-consuming because of the time required to conduct the rollcall vote just discussed. Nonetheless, the proponents of the bill (or other matter) being filibustered may prefer that the roll be called quickly because it requires unanimous consent to call off a routine quorum call, in which the clerk calls the roll very slowly, before it is completed. A filibustering Senator has only to suggest the absence of a quorum and then object to calling off the quorum call in order to provoke a motion to secure the attendance of absentees and (with the support of at least 10 other Senators) a rollcall vote on that motion. If this motion is likely to be necessary, one way or the other, it is usually in the interests of the bill’s proponents to have the motion made (and agreed to) as soon as possible.

When Senators suggest the absence of a quorum, however, they lose the floor. Also, “[i]t is not in order for a Senator to demand a quorum call if no business has intervened since the last call; business must intervene before a second quorum call or between calls if the question is raised or a point of order made.”7 These restrictions limit the extent to which quorum calls may be used as means of conducting filibusters.

page CRS-7, footnote 7:

Riddick’s Senate Procedure, p. 1053. On what constitutes intervening business, see pp. 1042-1046.

page CRS-9:

Scheduling Filibusters

Contemporary filibusters usually are fairly courteous affairs. The Senate’s daily schedule normally is arranged so that filibusters are not unduly disruptive or inconvenient to Senators. One way to make conducting a filibuster more costly and difficult is to keep the Senate in session until late at night, or even all night, requiring the participating Senators to speak or otherwise consume the Senate’s time. During some contentious filibusters of the 1950s, cots were brought into the Senate’s anterooms for Senators to use during around-the-clock sessions.

Today, all-night sessions are very unusual. The Senate may not even convene earlier or remain in session later when a filibuster is in progress than it does on other days. One reason may be that filibusters are not the extraordinary and unusual occurrences that they once were. Another may be that Senators are less willing to endure the inconvenience and discomfort of prolonged sessions.

The latter point is important because late-night or all-night sessions put as much or more of a burden on the proponents of the question being debated than on its opponents. The Senators participating in the filibuster need only ensure that at least one of their number always is present on the floor to speak. The proponents of the question, however, need to ensure that a majority of the Senate is present or at least available to respond to a quorum call or roll call vote. If, late in the evening or in the middle of the night, a Senator suggests the absence of a quorum and a quorum does not appear, the Senate must adjourn or at least suspend its proceedings until a quorum is established. This works to the advantage of the filibustering Senators, so the burden rests on their opponents to ensure that the constitutional quorum requirement always can be met.


S. prt. ; 99-95 — Senate cloture rule : limitation of debate in the Congress of the United States and legislative history of paragraph 2 of Rule XXII of the Standing rules of the United States Senate (cloture rule) / Congressional Research Service, Library of Congress. Part 2, pages 103-135. Printed for the Use of the Committee on Rules and Administration United States Senate. GAO 1985. (No link that I can find. PDF was received via Senate Historian’s Office, will ask for permission to post if there is interest. Should also be available via CRS.)

page 109:

On February 17, 1949, Senator Hayden, from the Committee on Rules and Administration, reported Senate Resolution 15. The text of the resolution is as follows:

… If at any time, notwithstanding the provisions of rule III or rule VI or any other rule of the Senate, a motion, signed by sixteen Senators, to bring to a close the debate upon any measure, motion, or other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Office shall at once state the motion to the Senate…

[..]

This change is primarily necessary in order to overcome the possibility of unlimited debate upon a motion that the Senate proceed to the consideration of a bill or other measure which has not been made the unfinished business of the Senate.


CRS RL32149 — “Proposals to Amend the Senate Cloture Rule


1994 CRS memorandum — “Filibusters in the Senate, 1789-1993” by Richard S Beth. (I couldn’t find this online. Link is to a scanned and ocr’ed pdf of paper copy.)


“What We Don’t Know About Filibusters,” presented at the annual meeting of the Western Political Science Association, Portland, Ore., March 1995 (available from the author) by Richard S. Beth. (I couldn’t find this online. Link is to a scanned and ocr’ed pdf of paper copy.)

pages 8-10 (my emphasis):

WHAT IS A FILIBUSTER?

Enough has been said to show that the use of data on cloture alone cannot establish whether filibusters are becoming more frequent. Filibusters are not the same as cloture situations. Cloture situations cannot be used as a proxy measure for filibusters. On the other hand, neither does showing that cloture data are inadequate to identify filibusters suffice to refute the proposition that filibusters are “getting worse.” The argument of this paper so far, in fact, has been headed towards little more than the proposition that the first thing we don’t know about filibusters is how many there are.

If we don’t know how many filibusters there were at different periods, we cannot well evaluate arguments for changing the cloture rule that are based on claims that filibusters are becoming more common (or, for that matter, more persistent, more determined, etc.). Answering these questions would therefore seem to require having some means of ascertaining the incidence of filibusters. Yet the next great thing we don’t know about filibusters is how many there have been; nor do we even have unambiguous or accepted criteria for identifying their occurrence.

Most people today probably think of filibustering chiefly in terms of extended debate; it is debate, after all, that the cloture rule is principally designed to limit. On this view, the problem of identifying filibusters might seem reducible to that of how long a debate must be to qualify as “extended.” Length of debate alone, however, will not suffice to identify filibusters, for filibustering implies not only length but dilatory intent. A speech admittedly presented for dilatory purposes might be shorter than another that everyone would accept as a constructive contribution to a deliberative process. Further, the term “filibustering” has historically been used to cover not only extended debate, but all dilatory or other obstructive tactics. There is widespread agreement that in recent years, filibusters have increasingly been conducted through procedural tactics, rather than through holding the floor in debate(Oleszek 1989: 222; Greenhouse 1987; Wines 1993).

The essential element, in other words, has been not length of debate per se, but the use of debate or any other legislative tactics with dilatory or obstructive intent. It is this element of intent that makes identifying filibusters so problematic. For Senators might engage in tactics that others considered to constitute a filibuster, without conceding that they are filibustering, without recognizing themselves to be filibustering, or even without considering what they are doing a filibuster. Senators’ actual intentions may also be indeterminate. A group of Senators might offer a long series of amendments to a bill, with the intention of continuing indefinitely if the amendments are rejected, but of supporting the bill if enough are adopted. In such a case it might become clear only afterwards, or never, whether their actions amounted to an attempt to block the bill by dilatory tactics.

Some contemporary discussion obscures this point by tending to treat “filibuster” as the name of one specific kind of dilatory tactic among others. For example, it was very likely the association of the cloture rule with the filibuster that fostered attempts to count filibusters in terms of cloture to begin with. References are sometimes also made to “the rules for filibustering,” as if the occurrence of a filibuster required some specific. procedural action, or some formal declaration invoking specific procedures. Some recent reform plans even proposed to control filibusters by establishing requirements for declaring them and for proceeding after they were declared (Mann and Ornstein 1993: 101- 104).4 If the procedural meaning of “filibuster” could be reduced to such straightforward terms, filibusters could readily be enumerated. In fact, however, there are in general no rules establishing or authorizing any specific obstructive actions; it would be more accurate to say that dilatory tactics are possible because of the absence of certain rules — for example, rules setting general time limits on debate.

In short, a key difficulty in identifying filibusters is that “filibuster” is not a technical procedural term; it does not apply explicitly or formally to any specific procedural action or set of actions. A wide variety of procedural actions can be used for dilatory purposes, but Senators need not take any specific ones in order to engage in a filibuster. Conversely, the same procedural action may be taken either with or without dilatory intent, so that use of a given procedure could indicate the presence of a filibuster on one occasion and yet not on another. Also, the procedures characteristically used for filibustering may prove to have varied over time. For all these reasons, the presence of a filibuster cannot be formally defined in institutional terms by the occurrence of any specific procedural actions.

   4 Smith’s “straight-track” proposal (1993: 98-99, 233-234) avoids this difficulty.


CRS RL32878 — “Cloture Attempts on Nominations

Summary page:

Cloture is the only means by which the Senate can vote to limit debate on a matter, and thereby overcome a possible filibuster. It would be erroneous, however, to assume that cases in which cloture is sought are the same as those in which a filibuster occurs. Cloture may be sought when no filibuster is taking place, and filibusters may occur without cloture being sought.

[...]

In 1971, when he was first appointed to the court, and again in 1986 when he was nominated to be Chief Justice, opponents of William H. Rehnquist mounted a filibuster. Though the cloture vote in 1971 was unsuccessful, Rehnquist was confirmed to the court; in 1986, the cloture vote was successful.

page 1: Cloture, Filibusters, and How They Differ

While cloture affords the Senate a means of overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Cloture may be sought when no filibuster is taking place, and filibusters may occur without cloture being sought. The reason is that cloture is sought by supporters of a matter, while filibusters are conducted by its opponents. Leaders of the majority party, or other supporters, may move for cloture even when opponents do not assert that they are attempting a filibuster, or when no extended debate or delaying actions have actually occurred. They may do so in response to a threat or perceived threat of a filibuster, or simply in an effort to speed action.

It is also possible for opponents of a matter to engage in a filibuster without supporters deciding to move for cloture. Supporters may refrain either because they think they lack the votes to obtain cloture, because they believe they can overcome any delaying actions and reach a vote without cloture, or because they hope to resolve the matter in dispute by some negotiated accommodation.

page 2:

…filibusters cannot simply be identified by explicit or uniform criteria, and there is no commonly accepted set of criteria for doing so. Instead, determining whether a filibuster is occurring in any specific case typically requires a degree of subjective judgment.

[...]

It would not be feasible to develop a list of measures filibustered unless a commonly accepted single standard for identifying what constitutes filibustering could first be established.2

page 2, footnote 2:

These questions of method are discussed in more detail in Richard S. Beth, “What We Don’t Know About Filibusters,” paper presented at the annual meeting of the Western Political Science Association, Portland, Ore., March 1995 (available from the author). [also see link above -s.]

pages 6-8:

See “Table 4. Nominations Subjected to Cloture Attempts, 1968-2008″ for several examples where a cloture vote failed, but the nominee was confirmed.


CRS RL31948 — “Evolution of the Senate’s Role in the Nomination and Confirmation Process: A Brief History


CRS RL33225 — “Supreme Court Nominations, 1789 – 2009: Actions by the Senate, the Judiciary Committee, and the President


CRS RL30850 — “Minority Rights and Senate Procedures


CRS 96-452 — “Voting and Quorum Procedures in the Senate


CRS 98-853 — “The Amending Process in the Senate


CRS RL30458 — “The Budget Reconciliation Process: Timing for Legislative Action


CRS 97-865 — “Points of Order in the Congressional Budget Process

via powwow:

The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, as amended) created a process that Congress uses each year to establish and enforce the parameters for budgetary legislation. Enforcement is accomplished through the use of points of order, and through the reconciliation process. Points of order are prohibitions against certain types of legislation or congressional actions. These prohibitions are enforced when a Member raises a point of order against legislation that may violate these rules when it is considered by the House or Senate.

[...]

The Congressional Budget Act of 1974[1] established the basic framework that is used today for congressional consideration of budget and fiscal policy. The act provided for the adoption of a concurrent resolution on the budget (budget resolution) as a mechanism for coordinating congressional budgetary decision making. This process supplements other House and Senate procedures for considering spending and revenue legislation by allowing Congress to establish and enforce parameters with which those separate pieces of budgetary legislation must be consistent. The parameters are established each year when Congress adopts the budget resolution, setting forth overall levels for new budget authority, outlays, revenues, deficit, and debt.

These overall spending levels are then allocated to the various committees in the House and Senate responsible for spending legislation. The overall levels and allocations are then enforced through the use of points of order, and through implementing legislation, such as that enacted through the reconciliation process.[2] Points of order are prohibitions against certain types of legislation or congressional actions. These prohibitions are enforced when a Member raises a point or order against legislation that is alleged to violate these rules when it is considered by the House or Senate. Points of order are not self-enforcing. A point of order must be raised by a Member on the floor of the chamber before the presiding officer can rule on its application, and thus for its enforcement.

[...]

[Footnote 2: The reconciliation process is an optional procedure set forth in Section 310 of the Congressional Budget Act. First used in 1980, reconciliation is a two-step process triggered when the budget resolution includes instructions to one or more committee(s) directing them to recommend changes in revenue or spending laws necessary to achieve the overall levels agreed to. The recommendations are then considered in one or more reconciliation measures under expedited procedures [designed to avoid Senate filibusters]. Certain features of the reconciliation process are enforced by points of order that are included in this report. For more on the reconciliation process generally, see CRS Report RL33030, The Budget Reconciliation Process: House and Senate Procedures, by Robert Keith and Bill Heniff Jr.]

[...]

Most points of order in the Budget Act apply to measures as a whole, as well as to motions, amendments, or conference reports to those measures. When a point of order is sustained against consideration of some matter, the effect is that the matter in question falls.

[...]

The Congressional Budget Act sets forth certain procedures, under Section 904, for waiving points of order under the act. These waiver procedures apply in the Senate only. Under these procedures, a Senator may make a motion to waive the application of a point of order either preemptively before it can be raised, or after it is raised, but before the presiding officer rules on its merits.6

In the Senate, most points of order under the Budget Act may be waived by a vote of at least three-fifths of all Senators duly chosen and sworn (60 votes if there are no vacancies) (see Table 1).

CRS RL30862 — “The Budget Reconciliation Process: The Senate’s “Byrd Rule”

CRS RS20870 — “Revenue Reconciliation Directives to the Senate Finance Committee in Congressional Budget Resolutions

________________

Riddick’s Senate Procedure:

main link

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Sections of special interest:


Preface, pp xiii-xviii


Adjournment, pp 1-23

page 1:

An adjournment of the Senate concludes 1 legislative day, and when the Senate reconvenes thereafter on the day to which it adjourned, a new legislative day is begun. The rules and precedents of the Senate provide for the general order of business to be utilized at the beginning of each new legislative day, as set forth in Rules IV (Commencement of Daily Sessions), VII (Morning Business), and VIII (Order of Business).

page 2:

Adjournment, Absence of Quorum:

See “Quorum, Absence of” pp. 5-7; “Adjournment in the Absence of a Quorum,” pp. 1040-1041; “Absence of Quorum,” p. 1081.

page 3:

Business must intervene between motions to adjourn when a quorum is present;4 likewise in the absence of a quorum, a motion to adjourn is not in order where no business relating to the obtainment of a quorum has been transacted since a previous motion to adjourn was defeated,5 unless a reasonable length of time has elapsed.6

footnotes for page 3:

   3 Dec. 22, 1914, 63-3, Record, p. 493.
   4 Aug. 3, 1888, 50-1, Record, p. 7212.
   5 July 2, 1930, 71-2, Journal, p. 532, Record, p. 12303.
   6 See Feb. 28, 1889, 50-2, Record, p. 2444.

pages 3-5:

A motion to adjourn is in order after a motion to table has been made, under Rule XXII, and a quorum call is in order after the motion to adjourn is made, but before the vote starts, or even after a motion to table is made and before a motion to adjourn is made; debate, however, would not be in order.12

Precedence of Motions:

A motion to adjourn takes precedence over all other motions,13 including a motion to adjourn sine die.14

A motion to adjourn takes precedence over a motion to adjourn to a day certain, even when motion to adjourn to a day certain is the pending question,15 but such a motion is in order at the proper time as set forth in Rule XXII, paragraph 1.

A motion that when the Senate completes its business on Saturday, it stand in adjournment until 10:00 o’clock on Sunday morning is in order.16

A motion to adjourn is in order at almost any time,17 even in the absence of a quorum,18 and has precedence over a call of the absentees after a rollcall to which less than a quorum responded;19 but a motion to adjourn would not be in order during a quorum call until the absence of a quorum has been established.20 A motion to adjourn after the Chair had announced that a quorum was not present would take precedence over the call of names of the absentees.21

However, after a quorum call is in progress, a motion to adjourn is not in order until the quorum is called off or concluded, or the Chair announces that a quorum is not present.22

A motion to adjourn has precedence over a call of the absentees;23 over a motion to adjourn to a day certain;24 pending the election of a President pro tempore of the Senate;25 over a motion to recess;26 or a motion to direct the Sergeant at Arms to request the attendance of absent Senators.27

If a motion to recess has been made and the yeas and nays ordered, a motion to adjourn would be in order and would supersede the motion to recess; if agreed to, it ‘would in effect vitiate the motion to recess.28

   12 See Mar. 14, 1972, 92-2, Record, pp. 8304-10.
   13 Aug. 5, 1966, 89-2, Record, p. 18388.
   14 Mar. 27, 1861,36-2, Journal, p. 431.
   15 Rule XXII; May 21, 1909, 61-1, Journal, p. 81.
   16 Nov. 30,1973, 93-1, Record, p. 38901.
   17 Dec. 7, 1942. 77-2. Record, p. 9352; see July 15,1942,77-2, Record, p. 6191.
   18 May 29, 1928, 70-1, Journal, p. 565; Aug. 1, 1888, 50-1, Record, p. 7126; Nov. 20, 1942,77-2, Record, p. 9014; Dec. 21, 1945, 79-1, Record, p. 12522; Nov. 14, 1942, 77-2, Record, p. 8838; Dec. 7, 1942,77-2, Record, p. 9352; June 9,1950,81-2, Record, pp. 8407-08; Feb. 3, 1897, 54-2, Record, p. 1481; Feb. 20, 1950, 81-2, Record, p. 1964; Feb. 28, 1889, 59-2, Record, p. 2444; Jan. 26, 1921, 66-3, Record, p. 2070; see also June 6, 1950, 81-2, Record, p. 8169.
   19 Dec. 22, 1916, 64-2, Record, p. 676; Jan. 27, 1917, 64-2, Record, p. 2118.
   20 See June 4,1976,94-2, Record, pp. 16705-07.
   21 Mar. 14, 1972, 92-2, Record, p. 8305.
   22 Sept. 30, 1971,92-1, Record, pp. 34260, 34265.
   23 June 27, 1918, 65-2, Record, p. 7896; Dec. 22, 1916, 64-2, Record, pp. 676-78; July 2, 1930, 71-2, Journal, p. 532, Record, p. 12303.
   24 May 21,1909,61-1, Journal, p. 81, Record, p. 2275; Mar. 2, 1929,70-2, Journal, pp. 270-71, Record, pp. 5062-64.
   25 May 11, 1911, 62-1, Journal, p. 62.
   26 Apr. 27, 1935, 74-1, Record, p. 6504; June 8, 1976, 94-2, Record, pp. 17040-41.

page 7:

A quorum having rejected a motion to adjourn, the suggestion of the absence of a quorum immediately thereafter, no business having intervened, was ruled out of order.45

footnote for page 7:

   45 Feb. 21, 1895, 53-3. Record, p. 2508.


Amendments, pp 24-125

page 32 (see also powwow’s previous comment):

There is no specified time for submitting printing amendments intended to be proposed to bills or resolutions which have been previously introduced or submitted.32 Unanimous consent is required to submit an amendment, have it read, and ordered printed and lie on the table, to be offered at a later date, or to make it eligible for consideration under cloture procedure before a cloture motion is filed.33

There is no rule which permits the offering of an amendment to be read and to be offered at a future time except under the cloture rule.34

Amendments which have been ordered to lie on the table and be printed, intended to be proposed to a bill subsequently, have no parliamentary standing,35 and cannot be regarded as pending amendments36 for consideration under the rule;37 they are not automatically laid before the Senate for consideration.38

footnotes for page 32:

   33 See Mar. 1, 1960, 86-2, Record, pp. 3968-69; Mar. 2, 1960, 86-2, Record, p. 4105; Mar. 3, 1960, 86-2, Record, pp. 4269-65; May 4, 1960, 86-2, Record, pp. 4484-85.
   34 See Mar. 3, 1960, 86-2, Record, pp. 4260-65.
   35 Aug. 21, 1950, 81-2, Record, p.12876; Apr. 2, 1951, 82-1, Record, p. 3107.
   36 See May 29, 1946, 79-2, Record, p. 5884.
   37 July 19, 1917, 65-1, Record, p. 5246.
   38 Feb. 19, 1932, 72-1, Record, p. 4315; Oct. 5, 1949, 81-1, Record, pp. 13892-93.
   39 May 10, 1934, 78-2, Record, p. 8564; July 14, 1958, 85-2, Record, p. 13659.

page 34 (see also powwow’s previous comment):

Bill or Measure Must Be Before Senate:

Any bill or resolution under consideration by the Senate is open to amendment or modification, under Rule XXII.

A bill must be under consideration by the Senate before it is in order to offer amendments to it,52 and two bills may not be under consideration at the same time.

footnote for page 34:

   52 See May 17,1951,82-1, Record, pp. 5425-26; May 14, 1962, 87-2, Record, pp. 8285, 8298.


Debate, pp 716-789

page 716

A Senator who wishes to debate must first be recognized by Presiding Officer, as no Senator may yield the floor to another. When there is a debatable matter before the Senate and debate is not limited, a Senator who has been recognized may proceed without interruption. Under these circumstances, a Senator may keep the floor as long as he or she remains standing and continues to debate, and the Senator may decline to yield to other Senators. Although as a general rule, a Senator may speak on any subject, for the first three hours of session on any calendar day after the Senate first conducts any business, debate must be germane to the question pending before the Senate. A Senator may not speak more than twice on the same question in debate on the same legislative day.

As long as a Senator has the floor, the Presiding Officer may not put the pending question to a vote. But when a Senator yields the floor and no other Senator seeks recognition, and there is no order of the Senate to the contrary, the Presiding Officer must put the pending question to a vote.

pages 716-7

…a Senator loses the floor when he or she calls up an amendment, makes a motion, makes a point of order, suggests the absence of a quorum, or asks for the yeas and nays. A Senator may also lose the floor by violating the rules or precedents of the Senate. Specifically, a Senator may not impute to another Senator or Senators any conduct or motive unworthy or unbecoming a Senator, nor may a Senator refer offensively to any State of the Union. Such Senator could be called to order by the Presiding Officer (on his own initiative or at the request of any other Senator) for violating the rules of the Senate, would have to be seated, and could not resume debate unless granted permission by a majority vote of the Senate on a nondebatable motion. A Senator who has the floor may yield to other Senators for questions only, and may not yield for any other purpose without the unanimous consent of the Senate. Senators in debate should address each other indirectly through the Chair, and in the third person. Although the rights of the Senator who has the floor are liberally construed, if the Presiding Officer gives notice that the rules and precedents will be applied strictly, a Senator who violates them will lose the floor upon being called to order.

page 765

Points of Order, Debate of:
      See “Appropriations Bills, Relevancy of Amendments,” p. 727.

A point of order is not debatable unless submitted to the Senate,397 but under recent precedents of the Senate, debate has been entertained in the discretion of the Presiding Officer398 for his own enlightenment or edification;399 and where the Chair permits such debate he may stop it at any time he desires.400


pages 781-5

Speeches Allowed in Same Legislative Day:
      See also “Cloture, Debate,” pp. 305-308.

The first set of rules of the Senate contained the following restriction: “No member shall speak more than twice in anyone debate on the same day, without leave of the Senate.”541 In its present form, this restriction can be found in Rule XIX, paragraph l(a) which provides in part that “no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate,542 which shall be determined without debate,”543 and “day” as used in Rule XIX means a legislative day,544 but the rule is not self enforcing.545

A Senator has a right to speak twice only in the same legislative day on the same question,546 for example, on a conference report,547 on a bill or on any amendment thereto548–thus the Senator may speak twice on any question in any given legislative day.549

On one occasion, in response to a parliamentary inquiry the Chair indicated that the two speech rule would apply to a Senator who controlled time for debate on a measure.550 However, more recently the Chair has indicated that the two speech rule would not apply in cases where debate was limited.551

On various occasions, the two speech rule has been applied552 and not applied553 when the Senate was operating under cloture, although it appears that Senators in adopting the cloture rule in 1917 understood it not to apply.554

If a Senator has spoken twice on an amendment in the same day, he is entitled to make two additional speeches on an amendment proposed to that amendment,555 or any different question brought before the Senate, as a motion to recommit.556

A Senator may make two speeches upon the same question in the same legislative day, and if he yields for a speech by another Senator he will lose the floor upon a point of order being made, and his speech will thereby be terminated.557

Under Rule XIX, a Senator is not entitled to speak more than twice in the same legislative day on the same question and when called to order during his third speech will lose his right to the floor.558

A Senator who has spoken twice on the same question may be recognized to make amotion,559 and by leave of the Senate or the adoption of a motion to that effect, to be determined without debate, a Senator may speak more than twice upon the same question on the same legislative day.560

When a Senator called for the regular order, the Senator who had the floor was directed to take his seat, since it was determined that he had already spoken twice on the question before the Senate on that legislative day, the Chair holding that recognition for any purpose constituted a speech. On appeal this ruling was not sustained as the judgment of the Senate. By this vote of the Senate, it was determined that standing alone, the following procedural motions and requests were examples of actions that did not constitute speeches for purposes of the two speech rule: parliamentary inquiries, appeals from rulings of the Chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a division vote, requests for reading of amendments, and requests for division of amendments. Therefore, the two speech rule requires not a mechanical test, but the application of the rule of reason.561

When a conference report taken up on motion is displaced by another matter taken up on motion, and such conference report is subsequently taken up again, a Senator who spoke on the report when it was first under consideration will have two speeches on the report when taken up the second time.562

On one occasion, a Senator obtained unanimous consent that no further remarks made by him constitute a second speech.563

In one instance, in 1948, when a Senator made a speech on an extraneous matter without knowledge that it would be counted as a speech on the pending question, he was by unanimous consent excused from the operation of the rule. 564

In the event a speech is continued over from one day until the next by unanimous consent, it counts as only one speech, although the Senate recessed in the meantime, since the rule on recognition and number of speeches may thus be waived.565

A Senator who yields for a motion to recess loses the floor, and if he is recognized on the reconvening of the Senate he will be making a second speech on the pending question.566

The speech of a Senator who is called to order for a violation of Rule XIX, reflecting upon Senators, if he is permitted to proceed in order, is not terminated.567

When a bill or resolution is under consideration, a statement by a Senator concerning an extraneous matter will be counted as a speech by him on the pending question.568

If a Senator in possession of the floor yields to another Senator to make a motion to recess or makes such a motion himself he would lose the floor, and would have no prior right to recognition, and if recognized again, it would be his second speech.569

A Senator who twice yielded in debate in the same day for motions to take a recess is not entitled to recognition again upon the same question,570 or who, during a second speech on the same day on a question, yields for a motion to adjourn loses the floor, and cannot proceed again in the face of objection which may be made after a Senator has started his third speech.571

A Senator who yields for the purpose of a quorum call has concluded one speech,572 but if he yields for a quorum call on condition that his right to the floor will be preserved, a subsequent point of order that his speech was terminated by yielding for the quorum call and that he had made one speech will not lie.573

Under an agreement to speak only once on a bill, a Senator cannot divide the time so as to speak more than once;574 an agreement to speak only once on a bill, or any amendment thereto, would make a second speech on the same question and would not be in order,575 but a Senator would be entitled to speak upon a new amendment.576

Under an agreement limiting debate on the part of a Senator to one speech of not more than 20 minutes on any resolution or amendment thereto, a Senator may speak on an amendment to an amendment.577

Under an agreement to speak once on a question, a Senator having the floor cannot yield time to another Senator.578

Under an agreement for a limitation of debate to speak only once on a bill, a Senator who was interrupted at a specified hour for a joint meeting was permitted to proceed with his remarks after reconvening.579

footnotes for pages 781-5

   539 Aug. 6 and 8, 1958, 85-2, Record, pp. 16309, 16317, 16625; May 9, 1962, 87-2, Record, p. 8055.
   540 Mar. 7,1940,76-3, Journal, p. 153, Record, p. 2497.
   541 Rule IV, Standing Rules of the Senate, Apr. 16, 1789, 1-1, Journal, p. 13.
   542 Dec. 20, 1982, 97-2, Record, p. 32676.
   543 Rule XIX, par. 1; Nov. 30, 1973,93-1, Record, pp. 38902-03; see May 24, 1978, 95-2, Record, p. 15224; July 25, 1979, 96-1, Record, pp. 20532-33.
   544 July 8, 1937, 75-1, Journal, p. 404; see also Feb. 28, 1949, 81-1, Record, p. 1585; Jan. 19, 1938, 75-3, Record, pp. 751-52; May 24, 1978, 95-2, Record, p. 15224.
   545 July 25, 1979, 96-1, Record, pp. 20532-33.
   546 Jan. 19, 1938, 75-3, Record, pp. 752-753; Dec. 27, 1920, 66-3, Record, p. 742; May 21, 1935, 74-1, Journal, p. 365; Apr. 15, 1940, 76-3, Record, pp. 4486-88; July 8,1937,75-1, Journal, p. 403; Feb. 18, 1927. 69-2, Journal, p. 189; see also Feb. 22, 1923, 67-4, Record, p. 4248; May 31, 1924, 68-1, Record, p. 10012; Mar. 2, 1911, 61-3, Record, pp. 3900-06; Mar. 4, 1960, 86-2, Record, pp. 4472-73; Aug. 31, 1959, 86-1, Record, p. 17389; June 20, 1947, 80-1, Record, p. 7426; June 19, 1948, 80-2, Record, p. 9138; Sept. 20, 1950, 81-2, Record, p. 15184; Oct. 1, 1940, 76-3, Record, p. 12926; Sept. 24, 1951, 82-1, Record, p. 11954.
   547 Feb. 18, 1927, 69-2, Journal, p. 189, Record, p. 4148.
   548 See Mar. 16, 1954, 83-2, Record, pp. 3330-3l.
   549 Dec. 9, 1982, 97-2, Record, p. 29559.
   550 Sept. 27, 1986, 99-2, Record, pp. 26598-99.
   551 See July 18, 1990, 101-2, Record, p. S 9900.
   552 See Sept. 25, 1986, 99-2, Record, pp. 26138-39; Dec. 20, 1982, 97-2, Record, pp. 32664-65; and Sept. 22, 1982, 97-2, Record, p. 24596.
   553 See July 18, 1990, 101-2, Record, p. S 9900; Jan. 25, 1926,69-1, Record, p. 2686; see also Aug. 14, 1962, 87-2, Record, pp. 16432-33.
   554 See remarks of Senator Norris, Mar. 8, 1917, 65-Special Session, Record, p. 27.
   555 See Jan. 24, 1938, 75-3, Record, p. l001.
   556 Sept. 18, 1914, 63-2, Record, p. 15358; see May 24, 1978, 95-2, Record, p. 15224.
   557 July 8, 1937, 75-1, Journal, p. 403, Record, pp. 6896-97.
   558 Dec. 16, 1970, 91-2, Record, pp. 41747-49; May 3, 1921, 67-1, Record, pp. 965-66.
   559 See June 20, 1947, 80-1, Record, p. 7426.
   560 Mar. 4, 1917, 64-2, Journal, p. 230, Record, p. 5019; Rule XIX, clause 1.
   561 Sept. 25, 1986, 99-2, Record, pp. 26139-53.
   562 Sept. 20, 1950, 81-2, Record, p. 15184.
   563 July 20, 1983, 98-1, Record, pp. 19905-06.
   564 Mar. 1, 1949, 81-1, Record, p. 1658.
   565 July 13, 1949, 81-1, Record, p. 9381; July 13, 1937, 75-1, Record, pp. 7111-12.
   566 Jan. 24, 1938,75-3, Record, p. 1001.
   567 See June 12, 1935, 74-1, Record, p. 9170.
   568 See Mar. 1, 1949, 81-1, Record, p. 1658.
   569 See June 12, 1935, 74-1, Record, p. 9127.
   570 Feb. 23, 1927, 69·-2, Journal, p. 207, Record, pp. 4495-96.
   571 Sept. 18, 1914, 63-2, Record, pp. 15356-57.
   572 July 13, 1937, 75-1, Journal, p. 411, Record, p. 7102; June 28, 1945, 79-1, Record, p. 6890; see also Apr. 12, 1940, 76-3, Record, p. 4419; Apr. 15, 1940, 76-3, Record, pp. 4487- 88.
   573 May 9, 1949, 81-1, Record, p. 5877.
   574 See Feb. 4, 1944, 78-11, Record, p.1246.
   575 Jan. 31, 1928, 70-1, Record, p. 2239; Nov. 7, 1921, 61-7, Record, p. 7474; Dec. 21, 1926, 69-2, Record, p. 843.
   576 Dec. 21, 1926, 69-2, Record, p. 843.
   577 See Feb. 26, 1947, 80-1, Record, p. 1439.
   578 Feb. 16, 1925, 68-2, Record, p. 3841.
   579 May 25, 1946, 79-2, Record, pp. 5719-20.


Dilatory Motions, pp. 800-1

pages 800-1:

In 1928, the Chair, during a filibuster on a Boulder Dam bill (S. 7281, overruled a point of order that a motion to take up a bill was dilatory,1 and on November 13, 1942, during consideration of the so-called anti-poll tax bill, a call for a quorum, after a long lapse of time but without transaction of business since the last quorum call, was held to be not dilatory “since a considerable period of time has elapsed since the last quorum call, and the precedents permit at least two or three quorum calls before a call can be held to be dilatory.”2

The Chair may rule to sustain or not sustain a point of order that a motion is out of order according to the Senate rules but not solely on the ground that it’s a dilatory motion, unless the Senate is operating under the cloture rule. Except in the case of the cloture rule, the rules do not specifically prohibit dilatory motions as such.3

It is not in order for a Senator to demand a quorum call if no business has intervened since the last call, since business must intervene before a second quorum call or between calls.4

In 1927, points of order made on two successive occasions, during a filibuster on the Boulder Dam bill (S. 33311, against motions to recess, pursuant to a previous order, were sustained on the ground that such motions had been voted down and that no business had been subsequently transacted.5

Again on May 25, 1928, during a filibuster on the Muscle Shoals bill, a suggestion of the absence of a quorum was held dilatory inasmuch as no busineas had been transacted since the last quorum call.6 In 1922, a suggestion of the absence of a quorum, following the rejection of certain motions succeeded by quorum calls, and no business having been transacted since the last quorum call, was decided by the Senate to be out of order.7

On February 5, 1987, the Senate decided that a quorum call that delayed a vote on the motion to approve the Journal when a quorum had been established, was dilatory and therefore out of order.8 Later that year, the Senate voted on appeal (and overturned the Chair in so doing) that a point of order was in order during a roll call vote on or subsumed by a vote on a motion to approve the Journal. The point of order contended that repeated requests by Senators to be excused from voting on any such vote were dilatory. The Chair then held that such repeated requests by Senators to be excused from voting on such a vote, when they are obviously done for the purpose of delaying the announcement of the vote on the motion to approve the Journal, were out of order as dilatory.9

footnotes for pages 800-1:

   1 May 29, 1928, 70-1, Journal, p. 565.
   2 Nov. 13, 1942, 77-2, Record, p. 8828.
   3 Mar. 14, 1972, 92-2, Record, pp. 8304-05.
   4 See “Quorum,” “Dilatory,” pp. 1053-1054.
   5 Feb. 22, 1927, 69-2, Journal, p. 206; May 26, 1928, 70-1, Journal, p. 537.
   6 May 25, 1928, 70-1, Journal, p. 537.
   7 Apr. 5, 1922, 67-2, Journal, p. 172, Record, pp. 5066-67.
   8 Feb. 5, 1987, 100-1, Record, pp. S 1835-37.
   9 May 13, 1987, 100-1. Record, pp. S 6346-50.


Motions, pages 934-937

page 935:

Out of Order:

A motion to set a time certain for a vote on a resolution is not in order.3

A motion directing the Chair to put to the Senate without further debate the consideration of a resolution to change the rules under his constitutional right to get a vote on changing the rules at the opening of a new Con-
gress is not in order.4

When such a motion is made, it is in order to make a point of order against such a motion, and a point of order having been made, the Chair has the authority to submit the question to the Senate, “Shall the point of order made by said Senator be sustained?”5

It is not in order in the Senate to move a question.6

There is no motion under the Senate’s rules, procedures or practices to adopt a pending amendment, or to move
the adoption of a resolution or to move passage of a bill.7 Likewise, it is not in order to move the adoption of a conference report. When no Senator seeks recognition to debate a conference report, the Chair will put the question on its adoption.8

footnotes for page 935:

   3 Dec. 22, 1970, 91-2, Record, p. 43202.
   4 Jan. 18, 1967, 90-1, Record, pp. 918,940.
   5 Ibid.
   6 July 22, 1983, 98-1, Record, p. 20522.
   7 July 29, 1986, 99-2, Record, p. 17904.
   8 Aug. 19, 1982, 97-2, Record, p. 22544.

pages 935-6:

Recognition To Offer a Motion:
      See also “Recognition,” pp. 1091-1105.

A Senator must first be recognized by the Chair in order to offer a motion.9

A Senator must stand and address the Chair if that Senator wishes to make a motion, and such Senator must do so before the Chair takes an action rendering such
motion untimely.10

It is not in order for one Senator when another has the floor to make a motion to lay a pending motion on the
table.11 Such a motion is not in order when another Sena-
tor has a right to the floor.12

footnotes for pages 935-6:

   9 Apr. 15, 1893, 53-Special Session, Record, p. 189; June 7, 1924, 68-1, Record, p. 11151; May 24, 1929, 71-1, Journal, p. 78, Record, p.1864; June 17, 1965, 89-1, Record, p. 14053.
   10 Sept. 19, 1986, 99-2, Record, p. 24907.
   11 Sept. 18, 1914, 63-2, Record, p. 15258.
   12 July 24, 1886, 49-1, Record, p. 7457.


Pending Question, p 984

page 984:

When a question is pending, and a Senator addressing the Chair concludes his address to the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.1


Points of Order, pp 987-996


Quorum, pp 1038-1078

pages 1041-2:

Adjournment in the Absence of a Quorum:

      See also “Precedence of,” p. 16; “Precedence of Motions,” pp. 4-5; “Quorum, Absence of,” pp. 5-7.

When the Senate convenes following an adjournment or recess (under a previous order) taken in the absence of a quorum, the Presiding Officer will direct a quorum to be called as soon as the Senate convenes,5 without any motion from the floor.6

Adjournment, May Not Interrupt Quorum Call Until Established That Quorum Was Not Present:

      See also “When Motion Not in Order,” p. 7.

After the Chair announces that a quorum is in progress, a motion to adjourn is not in order, until the quorum is called off or concluded, or the Chair announces that a quorum is not present.7

footnotes for pages 1041-2:

   5 July 21, 1975, 94-1, Record, p. 23735; Apr. 30, 1971, 92-1, Record, pp. 12855-61; May 3, 1971, 92-1, Record, p. 13131; July 16, 1942, 77-2, Reoord, p. 6225; Apr. 24 and 25, 1962, 87-2, Record, pp. 7139, 7141-43; July 28, 1962, 87-2, Record, pp. 14952-53; Aug. 14, 1962, 87-2,Record, p. 16416; Sept. 6, 1966, 89-2, Record, p. 21651; Sept. 11, 1970, 91-2, Record, p. 31502; Aug. 21, 1970, 91-2, Record, p. 29764. For several successive instances of daily adjournments because of a lack of a quorum, see Sept. 17, 1964, 88-2, Record, p. 22333; Sept. 18, 1964, 88-2, Record, p. 22354; Sept. 19, 1964, 88-2, Record, p. 22354; Sept. 21, 1964,88-2, Record, pp. 22354-55; Aug. 21, 1970, 91-2, Record, p. 29764; Sept. 11, 1970, 91-2, Record, p. 31502; June 30, 1971, 92-1, Record, p. 22878.
   6 Sept. 20 and 23, 1968, Record. pp. 27793, 27815; Aug. 21, 1970, 91-2, Record, p. 29764; Sept. 11, 1970, 91-2, Record, p. 31502.
   7 Sept. 30, 1971, 92-1, Record, pp. 34260, 34265.

pages 1042-6:

Business After Quorum Calls Not Required if Quorum Call Is Incomplete:

If the Senate completes a quorum call, “another quorum call would not be in order if a point of order were made” until some business has been transacted, but this would not be true if the quorum call was called off by unanimous consent.13

Business Between Calls-Definition of What Constitutes Business Since the Previous Quorum Call for the Purpose of Calling Another Quorum:
      See also “Dilatory,” pp. 1053-1054; “Cloture Procedure,” pp. 282-338.

A quorum call is not in order unless business has intervened since a quorum was last established,14 and the withdrawal of an amendment does not constitute business.15

Business must intervene before a second quorum call or between calls,16 or a quorum call is not in order when there has been no business transacted since the previous call which was completed if a point of order is made,17 and the suggestion of the absence of a quorum is not in order immediately following a yea and nay vote where the presence of a quorum was shown and no business has intervened;18 but another quorum call is in order when business has intervened.19 Where a motion to adjourn has been made, the suggestion of the absence of a quorum is in order.20 Likewise, it is always in order to suggest the absence of a quorum before a vote is taken on a proposition if a quorum has not just been established.21

Where a conference report has been adopted on a division vote, and a quorum call has been had, it is then too late to raise the question that a quorum was not present when the vote was taken, inasmuch as, on the Record, a quorum was officially presumed to be present.22

Where no intervening business has transpired, it is not in order, after the rollcall has started, to make a point of order that no business had intervened since the previous call.23

Precedents define the following transactions as business for the purpose of calling another quorum:

Adjourn, vote or action on motion to;24
Amendment, offering of;25
Amendment, consent to print and lie on table;26
Appeal, vote, or action on;27
Calendar call, objection to consideration of a bill during;28
Communication, presentation and reference of;29
Communication, granting of unanimous consent request for printing of;30
Engrossment and third reading of a measure;31
Executive session, adoption of motion for;32
Lay aside, objection to laying aside unfinished business temporarily,33 or the laying aside of unfinished business;
Legislative session, when previous call in executive session;34
Message from the House, receipt of;35
Motion, adoption of;36
Motion, making of (has been ruled both as business and as not business but latest rulings have held it to be business);37
Point of order, ruling on;38
Print article in Record, order to;39
Read, motion to direct the Secretary to read the address of a Senator;40
Recess, vote on motion to;41
Reconsider, vote on motion to;42
Record, granting consent to print article or statement in;43
Reference, granting of unanimous consent to print in Record and reference of certain matter;44
Reference, presentation and reference of a communication;45
Report, presentation of, out of order;46
Table, voting on motion to;47
Unanimous consent proposal, submission and granting or rejection of;48
Unfinished business, lay aside;49
Vote on any motion, including to take a recess;50
Yeas and nays, ordering of51 or refusal of.52
If the Senate is not operating under cloture, the denial of the yeas and nays constitutes business for the purpose of calling a quorum.53

The following have been held not to be business for the purpose of calling a quorum:

Debate;54
Debate, extension of time under unanimous consent agreement limiting;55
Discussion;56
Message from the House on which no action is required, laying before the Senate;57
Message from the House, receipt of;58
Message from the President, receipt of;59
Motion, making of (latest precedent says it is business);60
Parliamentary inquiry, making of;61
Reading of a protocol;62
Record, objection to request of reading or printing of article in;63
Record, objection to unanimous consent request to have a newspaper editorial printed or read into;64
Unanimous consent request, but no action on.65
Withdrawal of an amendment.66

footnotes for pages 1042-6:

   13 See Mar. 15, 1967, 90-1, Record, p. 6835.
   14 Feb. 24, 1982, 97-2, Record, pp. 2341-42; Apr. 15, 1986,99-2, Record, pp. 7479-80.
   15 Apr. 15, 1986, 99-2, Record, pp. 7479-80.
   16 July 27, 1914, 63-2, Record, pp. 12794-95; June 12, 1917, 65-1, Record, pp. 3500-01; Mar. 12, 1925, 69-Special Session, Record, pp. 174-75; June 12, 1935, 74-1, Journal, p. 434, Record, p. 9119; June 18, 1934, 73-2, Journal, p. 619, Record, p. 12401; May 25, 1928, 70-1, Journal, p. 537, Record, p. 9819; Mar. 3, 1927, 69-2, Record, p. 5497; Feb. 15, 1927, 69-2, Journal, p. 179, Record, pp. 3828-29; Dec. 11, 1919, 66-2, Record, p. 404; May 29, 1908, 60-1, Journal, p. 514, Record, pp. 7195-96; Feb. 21, 1895, 53-3, Record, p. 2508; Nov. 18, 1921, 67-1, Record, p. 7895.
   17 Mar. 15, 1967, 90-1, Record, p. 6835; Oct. 14, 1978, 95-2, Record, pp. 37393-401; Nov. 6, 1963, 88-1, Record, p. 21238; Jan. 18, 1915, 63-3, Record, p. 1765; Jan. 29, 1915, 63-3, Record, pp. 2620-21; July 27, 1914, 63-2, Record, pp. 12794-95; June 18, 1959, 86-1, Record, pp. 11178-82; May 28, 1957, 85-1, Record, p. 7849; Mar. 19, 1947, 80-1, Record, p. 2263; Jan. 18, 1938, 75-3, Record, p. 696; see also June 18, 1959, 86-1, Record, p. 11193; Nov. 27, 1963, 88-1, Record, p. 22909.
18 Apr. 16, 1986,99-2, Record, pp. 7744-45; Nov. 25, 1980,96-2, Record, .pp. 31037-39; Mar. 3, 1897, 54-2, Journal, p.184, Record, pp. 2736-37.
   19 Jan. 25, 1938, 75-3, Record, pp. l054-55.
   20 May 29, 1926, 69-1, Record, p. l0367; Dec. 12, 1917, 65-2, Record, p. 179.
   21 See Jan. 22, 1947, 80-1, Record, p. 509.
   22 See June 17, 1960, 86-2, Record, pp. 13077-78.
   23 Mar. 19, 1956, 84-2, Record, p. 5034.
   24 Feb. 17, 1931, 71-3, Journal, p. 227, Record, p. 5180; Mar. 3, 1927, 69-2, Journal, p. 267, Record, p. 5493; Feb. 15, 1927, 69-2, Journal, p. 179, Record, pp. 3828-29, 3849; Sept. 18, 1914, 63-2, Record, p. 15355. (A call of the Senate having disclosed the absence of a quorum, and a motion to adjourn having been rejected, a second call of the Senate is not in order-Jan. 24, 1901, 56-2, Record, p. 1384.)
   25 Apr. 16, 1986, 99-2, Record, pp. 7744-45; Aug. 27, 1940, 76-3, Record, p. 11029; see also Aug. 15, 1941, 77-1, Record, p. 7173.
   26 See Jan. 8, 1938, 75-3, Record, p. 228; Jan. 7, 1938, 75-3, Journal, p. 79, Record, p. 155.
   27 June 12, 1935, 74-1, Journal, p. 434, Record, p. 9091; Mar. 19, 1945, 79-1, Record, p. 2409; see also June 20, 1947, 80-1, Record, p.7379; Mar. 19, 1947, 80-1, Record, p. 2263; June 20, 1962, 87-2, Record, p.11157.
   28 Feb. 19, 1940, 76-8, Journal, pp. 125-26, Record, p. 1583; Nov. 16, 1942, 77-2, Record, pp. 8556-61.
   29 May 25, 1929, 71-1, Journal, p. 80; Record, pp. 1919-20.
   30 See Apr. 30, 1935, 74-1, Joumal, p. 305. Record, p. 6619.
   31 See Dec. 4, 1942, 77-2, Record, p. 9328.
   32 See Jan. 25, 1938, 75-3, Record, p. 1080.
   33 Sept. 23, 1921, 67-1, Record, p. 5741.
   34 Jan. 25, 1938, 75-3, Journal, p. 102, Record, pp. 1054-55.
   35 Jan. 27, 1915, 63-3, Record, p. 2389.
   36 Mar. 9, 1912, 62-2, Record, pp. 3090-91.
   37 Sept. 4, 1941, 77-1, Record, p. 7308; see also Apr. 30, 1948, 80-2, Record, p. 5089.
   38 See Mar. 19, 1947, 80-1, Record, p. 2261.
   39 Jan. 19, 1938, 75-3, Record, p. 752; Apr. 30, 1935, 74-1, Record, pp. 6620-21; see also Jan. 7, 1938, 75-3, Record, p. 203; Nov. 17, 1942, 77-2, Record, pp. 8897, 8922.
   40 June 12, 1935, 74-4, Journal, p. 495; Record, p. 9188.
   41 Feb. 22, 1927, 69-2; Journal, p. 205, Record, p. 4437; Dec. 4, 1942,77-2, Record, p. 9334.
   42 June 12, 1935, 74-1, Journal, p. 495, Record, p. 9188.
   43 Jan. 19, 1938, 75-3, Record, p. 752; Apr. 30, 1935, 74-1, Record, pp. 6620-21; see also Jan. 7, 1938, 75-3, Journal, p. 79, Record, pp. 155, 228; Nov. 17, 1942, 77-2, Record, pp. 8897, 8922; June 18, 1959, 86-1, Record, pp. 11178-82; Nov. 27, 1963, 88-1, Record, p. 22909.
   44 Sept. 29, 1914, 63-2, Record, p. 15855.
   45 May 25, 1929, 71-1, Journal, p. 80.
   46 Mar. 16, 1943, 78-1, Record, p. 2056; see also Jan. 13, 1933, 72-2, Record, p. 1732.
   47 May 25, 1928, 70-1, Journal, p. 537; June 12, 1935, 74-1, Journal, p. 436.
   48 Feb. 22, 1923, 67-4, Record, pp. 4265-66; Mar. 6, 1968, 90-2, Record, pp. 5534-35; Feb. 20, 1923, 67-4, Journal, p. 176, Record, p. 4105; Feb. 22, 1923, 67-4, Journal, p. 182, Record, p. 4266; Mar. 3, 1927, 69-2, Journal, p. 267, Record, p. 5486; June 30, 1941, 77-1, Record, p. 5737; Mar. 2, 1927, 69-2, Journal, p. 267; see also Feb. 26, 1960, 86-2, Record, p.3596.
   49 Sept. 23, 1921, 67-1, Record, p. 574l.
   50 Nov. 16, 1921, 67-1, Record, p. 7806; June 12, 1935, 74-1, Journal, p. 434, Record, p. 9091; June 12, 1935, 74-1, Journal, p. 495, Record, p. 9188.
   51 July 28, 1980, 96-2, Record, p. 19967; Apr. 22, 1940, 76-3, Record, p. 4831; Nov. 17, 1942, 77-2, Record, pp. 8897-98; see also May 31, 1949, 81-1, Record, p. 7071; Oct. 31, 1921, 67-1, Record, p. 7034.
   52 Sept. 25, 1986, 99-2, Record, p. 26137; June 22, 1955, 84-1, Record, p. 8954.
   53 Dec. 16, 1982, 97-2, Record, p. 31291.
   54 Sept. 25, 1986, 99-2, Record, p. 26137; Dec. 18, 1919, 66-2, Record, p. 819; Nov. 18, 1921, 67-1, Record, p. 7895; Feb. 15, 1927, 69-2, Journal, p. 179, Record, pp. 3828-29; Feb. 27, 1911, 61-3, Record, pp. 3558-60; July 27, 1914, 63-2, Record, pp. 12794-95.
   55 Jan. 24, 1933, 72-2, Record, p. 2397.
   56 Feb. 25, 1929, 70-2, Journal, p. 212, Record, p. 4248.
   57 Mar. 1, 1929, 70-2, Journal, p. 254, Record, p. 4862.
   58 See Aug. 15, 1941, 77-1, Record, p. 7173; Nov. 17, 1942, 77-2, Record, p. 8898.
   59 Nov. 17, 1942, 77-2, Record, pp. 8897-99.
   60 Nov. 17, 1942, 77-2,Record,p. 8897; Mar. 29, 1938, 75-3,Record, p.4299.
   61 June 18, 1959, 86-1, Record, pp. 11178-82; Aug. 14, 1962, 87-2, Record, pp. 16443-
44; Aug. 29, 1962, 87-2, Record, pp. 18121-22; see Nov. 27, 1963, 88-1, Record, p. 22909.
   62 Jan. 25, 1926, 69-1, Record, p. 2681.
   63 Apr. 30, 1935, 74-1, Record, pp. 6620-21; June 20, 1947, 80-1, Record, p. 7379; see also Nov. 17, 1942, 77-2, Record, p. 8922; Jan. 7, 1938, 75-3, Record, p. 203; Apr. 13, 1964, 88-2, Record, pp. 7783-84.
   64 Apr. 30, 1935, 74-1, Journal, p. 305, Record, p. 6619.
   65 See Feb. 26, 1960, 86-2, Record, p. 3596.
   66 Apr. 15, 1986, 99-2, Record, pp. 7479-80.

pages 1053-4:

Dilatory:
      See also “Business-Definition of What Constitutes Business Since the Previous Quorum Call for the· Purpose of Calling Another Quorum,” pp. 1042-1046; “Cloture Procedure,” pp. 282-334.

It is not in order for a Senator to demand a quorum call if no business has intervened since the last call;130 business must intervene before a second quorum call or between calls if the question is raised or a point of order made.131

A quorum having been announced, the suggestion of the absence thereof is not in order until there has been some transaction of business.132

A quorum call is in order when business has intervened,133 or where business intervenes, immediately following another quorum call.134

On April 5, 1922, following the rejection of certain motions succeeded by quorum calls, the suggestion of the absence of a quorum was decided by the Senate to be a dilatory motion.135 On February 22, 1927, during a filibuster against the Boulder Dam bill (S. 3331) and on May 25, 1928, during a filibuster against the Muscle Shoals bill(S.J. Res. 46) the Chair sustained points of order that suggestion for a quorum was dilatory.136 While on May 29, 1928, during a filibuster on the Boulder Dam bill (S. 728) and on November 13, 1942, during consideration of the Poll Tax bill (H.R. 1024), a motion and suggestion of the absence of a quorum were held not to be dilatory.137

The Chair submitted to the Senate a point of order which contended that a quorum call was not in order, and declined to acknowledge the further suggestion of the absence ofa quorum until the Senate could decide the point of order. The Senate then decided that a quorum call that delayed a vote on a motion to approve the Journal when a quorum had been established was dilatory and therefore out of order.138

footnotes for pages 1053-4:

   129 July 5 and 6, 1921, 67-1, Journal, p. 182, Record, pp. 3353, 3374, 3405-08.
   130 Nov. 6, 1963, 88-1, Record, p. 21238; Feb. 28, 1951, 82-1, Record, p. 1681; Mar. 19, 1947, 80-1, Record, p. 2261; Feb. 15, 1927, 69-2, Journal, p. 179; July 2, 1954, 83-2, Record, p. 9601; June 14, 1954, 83-2, Record, pp. 8139-40; May 13, 1954, 83-2, Record, pp. 6530-31; July 30, 1953, 83-1, Record, p. 10500; May 6, 1953, 83-1, Record, p. 4590; Apr. 21, 1953, 83-1, Record, p. 3475; May 19, 1949, 81-1, Record, p. 6457; Apr. 25, 1949, 81-1, Record, p. 4980; Mar. 20, 1945, 79-1, Record, p. 2471; Mar. 19, 1945, 79-1, Record, pp. 2405-07, 2409; July 3, 1943, 78-1, Record, p. 7112; Dec. 3, 1942, 77-2, Record, p. 9285; Jan. 18, 1938, 75-3. Record, p. 696; June 12, 1935, 74-1, Journal, p. 434; June 18, 1934, 73-2, Journal, p. 619, Record, p. 12401; Mar. 1, 1929, 70-2, Journal, p. 254; Feb. 25, 1929, 70-2, Journal, p. 212; Feb. 25, 1929, 70-2, Journal, p. 212, Record, p. 4248; May 25, 1928, 70-1, Journal, p. 537; Feb. 15, 1927, 69-2, Journal, p. 179, Record, pp. 3828-29; Mar. 12, 1925, 69-Special Session, Record, pp. 174-75; Oct. 25, 1921, 67-1, Journal, p. 290, Record, p. 6742; Dec. 11, 1919, 66-2, Record, p. 404; June 12, 1917, 65-1, Record, pp. 3500-01; May 29, 1908, 60-1, Journal, p. 514, Record, pp. 7195-96; Feb. 21, 1895, 53-3, Record, p. 2508; see also Mar. 3, 1897, 54-2, Journal, p. 184, Record, pp. 2736-37; Feb. 27, 1929, 70-2, Journal, p. 236; Nov. 27, 1963, 88-1, Record, p. 22909.
   131 Ibid.; Jan. 18, 1915, 63-3, Record, p. 1765; July 27, 1914, 63-2, Record, pp. 12794-95; Jan. 29, 1915, 63-3, Record, pp. 2620-21; July 27, 1914, 63-2, Record, pp. 12794-95; Mar.3, 1927, 69-2, Record , p.5497.
   132 See May 29, 1908, 60-1, Record, p. 7181.
   133 Mar. 1, 1929, 70-2, Journal, p. 253; June 12, 1935, 74-1, Journal, p. 434; Jan. 25, 1938, 75-3, Record, pp. 1054-55; Jan. 19, 1950, 81-2. Record, p. 621; May 2, 1914, 63-2, Record, p. 7619; May 30, 1908, 60-1, Journal, p. 514, Record, p. 722Q; see also Aug. 15, 1941, 77-1,Record, p. 7173.
   134 Dec. 4, 1942, 77-2, Record, pp. 9334-35.
   135 Apr. 5, 1922, 67-2, Journal, p. 172, Record, pp. 5066-67.
   136 Feb. 22, 1927, 69-2, Journal, p. 206; May 25, 1928, 70-1, Journal, p. 537.
   137 May 29, 1928, 70-1, Journal, p. 565; Nov, 13, 1942, 77-2, Record, p. 8828.
   138 Feb. 5 , 1987, 100-1, pp. S 1835-37.

page 1055:

Interruption of Senator To Suggest Quorum Call, Out of Order:

One Senator cannot take another off the floor to suggest the absence of a quorum,140 nor can a Senator who has the floor be interrupted by another against his consent for a quorum call.141 A quorum call is not in order when the Senator holding the floor declines to yield for that purpose.142

footnotes for page 1055:

   140 Jan. 26, 1921, 66-3, Record, p. 2070; July 24, 1947, 80-1, Record, pp. 9994, 9996-97, 10000; Mar. 3, 1931, 71-3, Record, p. 7133; June 6, 1913, 63-1, Record, p. 1907; July 16, 1897, 55-1, Record, p. 2632; Apr. 9, 1870, 41-2, Globe, pp. 2542-43.
   141 Aug. 14, 1914, 63-2, Record, pp. 13727-28; June 5, 1920, 66-2, Record, p. 8637; Nov. 22, 1937, 75-2, Journal, p. 16, Record, pp. 209-1l.
   142 Apr. 22, 1926, 69-1, Journal, p. 341; June 29, 1926, 69-1, Journal, p. 544; Feb. 23,
1927, 69-2, Journal, p. 207.


Recess, pp 1080-1090

page 1081:

Absence of Quorum:

      See also “Recess, Motion To, and Call for Quorum,” pp. 1059- 1060; “Recess in Absence of Quorum,” p. 1058; “Quorum Call Following a Recess in Absence of Quorum,” p. 1088.

A motion to take a recess or take a recess to an hour certain is not in order in the absence of a quorum,l nor is it in order to entertain a motion to recess or to recess to an hour certain after the absence of a quorum has been determined,2 unless a previous order to take a recess at the conclusion of its day’s business has been made;3 in which case a subsequent motion to adjourn is not in order,4 but a motion to recess would be in order.5

When the Senate adopts an order for a recess at the conclusion of its day’s business to a day or hour certain, a motion may be made in the absence of a quorum to take a recess pursuant to such order.6

footnotes for page 1081:

   1 Art. I, sec. 5; Jan. 26, 1921, 66-3, Record, p. 2070; Mar. 3, 1927, 69-2, Journal, p, 267,
Record, p. 5494; Mar. 7, 1950, 81-2, Record, p. 2947; Aug. 28, 1916, 64-1, Record, p. 13311; Aug. 5, 1886, 49-1, Record, p. 8022; Aug. 17, 1888,50-1, Record, p. 7680; see also June 4, 1894, 53-2, Record, p. 5694.
   2 Mar. 3, 1927, 69-2, Journal, p. 267, Record, p. 5494; Mar. 7, 1950,81-2, Record, p. 2947.
   3 Feb. 22, 1927, 69-2, Journal, p. 206; Feb. 25, 1929, 70-2, Journal, pp. 211-12; Dec. 14, 1950, 81-2, Record, p. 16569; June 1, 1922, 67-2, Journal, p. 271, Record, p. 7967; see also Apr. 16, 1953, 83-1, Record, p. 3227.
   4 June 1, 1922,67-2, Journal, p. 271, Record, p. 7967; June 3,1920,66-2, Record, pp. 8363, 8379; Feb. 25, 1929, 70-2, Journal, pp. 211-12, Record, pp. 4241-43.
   5 Apr. 22, 1922, 67-2, Record, pp. 5857, 5872; June 1, 1922, 67-2, Journal, p. 271, Record, p. 7967; Feb. 7, 1925, 68-2, Journal, pp. 162-63, Record, pp. 3206, 3219; Jan. 29, 1931, 71-73, Record, p. 3480; Feb. 22, 1927, 69-2, Journal, p. 206, Record, pp. 4453-56; Feb. 25, 1929,70-2, Journal, pp. 211-12, Record, pp. 4241-43; Nov. 9, 1929, 71-1, Journal, p. 196, Record, p. 5391; June 25, 1973, 93-1, Record, p. 21144.
   6 Feb. 7, 1925, 68-2, Journal, pp. 162-63, Record, pp. 3206, 3219; June 21 and 23, 1975, 94-1, Record, pp. 20214, 20289.

page 1086:

The renewal of a motion to take a recess is in order when business has intervened subsequent to a vote on a previous such motion.45

footnote for page 1086:

   45 Aug. 24, 1921,67-1, Record, p. 5626.


Recommit, pp 1106-1123

page 1107:

Amendments to a Motion To Recommit:

Motions to recommit are not open to amendment except to add instructions, which may be amended by changing the character of the instructions;1 they are in order even if the yeas and nays on the motion have been ordered.2

A motion to recommit may be amended by a substitute to recommit with instructions, and the instructions to the substitute would be open to amendment in one degree.3

When a motion to recommit with instructions is made and an amendment is proposed to the instructions, and a substitute for that amendment is offered, it is in order to propose a perfecting amendment to the language proposed to be stricken by the substitute.4

footnotes for page 1107:

   1 See May 20, 1949, 81-1, Recard, p. 6518; Feb. 20, 1952, 82-2, Recard, p. 1184; Aug. 31, 1959, 86-1, Record, p. 17376.
   2 See Apr. 23, 1952, 82-2, Record, pp. 4289-90.
   3 Feb. 19, 1974, 93-2, Record, pp. 3466-67.
   4 Apr. 20, 1983, 98-1, Record, p. 9158.

page 1101:

Instructions:
      See also “Amendments to a Motion To Recommit,” pp. 1107-1109.

A motion to recommit a bill without instructions made after the rejection of a motion to recommit with instructions is in order.24

footnote for page 1101:

24 See July 8, 1964, 88-2, Record, pp. 16106, 16111-12.

page 1114:

If a motion to recommit with instructions is rejected, another motion could be made after a reasonable length of time with different instructions or provisions,59 or immediately after amendments are added to the bill.60

There is no provision in the Senate rules which forbids the repetition of a motion to recommit,61 and, therefore, the number of motions to recommit a matter is not limited under the rules;62 a second motion has been made on a succeeding day without being challenged.63 A motion to recommit is in order when it is substantially different from a previous motion,64 or where the bill has been materially amended or changed.65 A further motion to recommit a bill may be made after a reasonable length of time has intervened, and changes have been made in the bill.66

footnotes for page 1114:

   59 See Oct. 14, 1949, 81-1; Record, p. 14546; Aug. 10, 1957, 85-1, Record, p. 14337.
   60 See Aug. 31, 1959, 86-1, Record, p. 17387; Oct. 2, 1974, 93-2, Record, pp. 33507-26.
   61 Apr. 23, 1935, 74-1, Journal, p. 289, Record, pp. 6188-89.
   62 Apr. 22 and 23, 1935,74-1, Journal, p. 289; Apr. 24, 1935, 74-1, Journal, p. 293.
   63 Aug. 11, 1944, 78-2, Record, p. 6901.
   64 June 27, 1947, 80-1, Record, p. 7785.
   65 Apr. 25, 1930, 71-2, Record, p. 7712.
   66 See Jan. 11 and 14, 1921, 66-3, Journal, pp. 51, 55, Record, pp. 1247, 1414; Mar. 27, 1956, 84-2, Record, p. 5656.

page 1115:

If a bill has been referred to a committee and subsequently reported, a motion to refer such bill to another committee is in order at any time it is before the Senate for consideration.72

footnote for page 1115:

   72 Mar. 18, 1959, 86-1, Record, 4474.


Rules, pp 1217-1228

page 1217:

If proposals to amend the rules should be filibustered, it would take a two-thirds vote to invoke cloture, but the vote on the adoption would still only require a majority vote.

________________

From the Congressional Record:

  • October 5, 1992: Al D’Amato’s real filibuster (selections from the Congressional Record). Video archive from the CSPAN library for the Senate floor on Monday, October 5, 1992 (33 hours, 36 minutes).
  • September 25, 1986: Debate and precedent on the two-speech rule during debate on the Product Liability Reform Act. Inclusive of footnote 561 from Riddick’s section Debate pp 716-789: Sept. 25, 1986, 99-2, Record, pp. 26136-54. (Links to the Record citation are a scanned pdf of a microfiche photocopy, or extensive selections in the post, Senate Filibusters and the Two-Speech Rule [a third working thread about forcing the (real) filibuster]).
  • also per powwow:

    You’ll probably run into references to the “Journal of Proceedings” and the “Morning Hour” that used to be regular parts of daily floor time in the Senate. But today the following is the absolutely routine method of dispensing with those opportunities for floor time or debate, as unanimously agreed to each day when the Senate adjourns:

    Mr. REID. Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 2 p.m., Monday, February 8; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, and the Senate proceed to executive session, as provided for under the previous order.

    The PRESIDING OFFICER. Without objection, it is so ordered.

    link

NOTE: The Congressional Record is available online from January 1989 via THOMAS, from 1994 via GPO Access or offline at Federal Depository Libraries (hard copy, microfiche, microfilm).

________________ ________________ ________________

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    One Response to “Senate Filibuster Reference List”

  1. 1 selise said:

    note to self: seeing powwow today reminds me that i have items from a comment by powwow that need to be added to this reference list:

    http://fdlaction.firedoglake.com/2011/01/26/after-failing-to-change-senate-rules-democrats-lose-right-to-blame-mitch-mcconnell/#comment-139202

    replyReply to this comment

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