First off, I hope no one is insulted by the title. There are no real "Dummies" here at Dailykos (at least I've never run across one), like there are on many of the crazy right wing Blogs. The title, like the ones from the book series, is simply intended to indicate that this diary (and the two others to follow) will attempt to explain Filibuster Reform in a way everyone can understand, not just professors and students of Legislative process (David Waldman being the professor and myself being one of the students).
As also indicated in the title, this diary is Part 1 of a three part series on Filibuster Reform. In this diary (Part 1), I will cover what the filibuster really is, in terms of the Senate's Rules. In Part 2, I will cover how Senate rules can be established to reform the filibuster through the “Constitutional Option”. In Part 3, I will cover some of the specific rules that are being discussed to reform the filibuster (with my opinion of each), and others I would like to see, as well as how the actual process might play out.
Even if you're not interested in delving into this diary (and the two to come) now, I would urge you to bookmark it, since I hope to jam it full of some interesting facts on Senate procedure that you might want to be able to access when this whole thing heats up in the New Year on “Day One” of the new Congress. However, if I have managed to peak your interest somewhat, please jump /\ over the orange squiggle with me and we'll get going.
Before plunging head long into the topic of Filibuster Reform, I must make it clear that pretty much everything I'm posting on this topic is from my figurative professor David Waldman (Kagro X). Specifically, its my attempt at summarizing his discussions on the topic of the Filibuster from three (3) "Kagro in the Morning Shows", which you can access by downloading iTunes (FREE) and then find the list of shows by typing "Kagro in the Morning" on the podcast search feature. The 3 shows I am referring to are November 14, 15 & 19 which are in the list. If you have a few hours to spare to listen to these Kagro Shows, even if you just have them playing in the background while you go about your business, you will find them immensely informative. I have found David to be, the most informed source out there when it comes to the House and Senate, and the sometimes bizarre rules they operate under.
Now that I've buttered you up David (if you're reading this), I hope you won't mind if I use (with full credit given) the information from the Kagro Shows to provide this Filibuster Reform summary. It is definitely not my intention to trigger any copyright infringement issues, but to provide the information from these shows with proper deference given. If I make any unintentional misquotes or other factual errors, please feel free to correct me in the comments and I will post any revisions in an update.
With that out of the way, here we go. As stated in the opening, I will attempt to answer the questions of what the filibuster really is. In doing so I will touch upon some common myths regarding the Senate procedure that you may have heard from some of the main-stream pundits, and do my best to truth them or bust them. So...
1. What is the Filibuster?
Well, to start out, my "WORD" dictionary defines it as:
"a tactic used to delay or prevent the passage of legislation, e.g. a long irrelevant speech"This is only partly true when it comes to its use in the US Senate. There are really not any "long, irrelevant" speeches involved in today's version of the Senate filibuster, and we'll get to why that is later on.
The more pertinent question is: What is the Senate Filibuster and how does it get invoked?
This question leads us to our first Myth:
Myth #1: "The filibuster is a Senate Rule."
The fact is that you won't find the word "filibuster" anywhere in the Senate rules (Surprised?). So:
Myth #1 = BUSTED!
However, it is an outgrowth of the present set of Senate rules, in the sense that the rules define how things get done (or not done) in the Senate. To start out, there are basically two ways things get done in the Senate, one being by "Unanimous Consent" and the other being as the result of a "Motion."
If you occasionally watch C-SPAN2, you might hear a Senator (usually Majority Leader Harry Reid) say something like this:
"I ask unanimous consent that Senator So & So be allowed to speak for up to 30 minutes on the topic of belly button lint."After that you will see the Presiding Officer (the Senator in the Chair) take a quick look around the room to see if anyone objects, he or she will say:
"Without objection."Meaning that since no one has voiced an objection, the presiding officer assumes that every Senator (present or not) consents to the Senator's request, and Zippo! - Unanimous Consent is achieved and Senator So & So gets to talk about navel lint.
Of course, if the presiding officer looks around the room and a Senator says:
"I object."The presiding officer will respond by saying:
"Objection heard."Meaning the presiding officer has heard the Senator's objection, and since at least one Senator has objected, consent is not unanimous, and as such is denied by the Chair. So the other Senator does not get to speak. Pretty simple so far?
The other way things get done in the Senate is by "Motions". Motions can be used for almost anything a Senator wants to do, but they are most often used to bring Bills/Nominations to the floor or call for (majority) votes on Bills/Nominations. The key thing to remember about "Motions" is that almost all "Motions" are subject to debate of undefined limits (I say almost all because when operating under "Budget Reconciliation" rules, debate has defined limits and Cloture motions are not debatable under the rules). Notice I use the phrase "Debate of Undefined Limits" instead of "Unlimited Debate" as you may hear the punditry refer to it. That's because in my way of thinking, Senate debates can be limited, either by unanimous consent or by successfully invoking "Cloture" (which we'll get to later) and therefore they are not "unlimited". However, (with the exceptions mentioned above), the present Senate rules do not place any established limits on debate which is why I like to use the term "Debate of Undefined Limits" instead of "Unlimited Debate".
How we get to a filibuster through “Motions” can be demonstrated by the example below:
Senator Reid addressing the Chair:
"I move [make a motion] that we suspend debate on Senate Bill 4103, the "Belly Button Lint Prevention Act" and call for an immediate [majority] vote on the measure."The Presiding Officer looks around the chamber and recognizes Minority Leader McConnell who gets up to talk for a while against the Belly Button Lint Act, and then says:
"I object."And there you have it. With those two words a filibuster has begun!
With this objection, Reid does not get the immediate vote on the bill he requested and we enter into a debate of “undefined limits”. A debate that can only be stopped if every Senator in favor of continued debate changes their mind and agrees to let the vote take place (i.e., "unanimous consent) or is halted by a successful Cloture vote.
This gets us to another myth:
Myth #2: "The Senate Rules require that the minority has to actively debate to sustain a filibuster (sort of the "Mr. Smith goes to Washington" Myth)"
The truth is that the Senators wishing debate to continue debate don't have to say another word after voicing their objection, nor do they have to remain on the floor under the present Senate rules. So:
Myth #2 = BUSTED!
They just have to make sure they have enough members on the floor who will not vote in favor of Cloture, and under the present rules, they are given ample notice of when a Cloture vote will take place (after a Cloture petition is filed and announced by the chair, the Chair will call for a vote "one hour after the Senate meets on the following calendar day" according to Rule XXII). And to make things even easier on the Senators in the minority looking to keep a filibuster going, its up to the Senators in the majority who want to end it to muster the Cloture votes. That's because to limit debate (i.e., end the filibuster) Rule XXII states that its takes:
"...[an] affirmative [vote] by three-fifths of the Senators duly chosen and sworn..."So, technically, the Senators in the minority don't have to come up with a single "no" vote to keep a filibuster going, the entire burden for ending a filibuster is shifted to the majority under the current rules, who need to come up with the necessary 3/5s yea votes.
This leads us to Myth #3.
Myth #3: "It takes 60 votes to end a filibuster."
Looking at Rule XXII above, notice its 3/5s of the Senators duly chosen and sworn, not 3/5s of the Senators on the floor at the time, meaning that when all 100 Senators are sworn in (i.e., there are no vacancies), the infamous 60 (yea) votes are needed to limit debate. However, if there are 2 or more vacancies, the 3/5s majority falls below 60 votes (e.g., the number falls to 59 votes when there are 2 vacancies). This myth is therefore true sometimes, but not necessarily all the time. So:
Myth #3 = Partially TRUE or Partially BUSTED (however you want to look at it)!
Well that about ends our "What is the filibuster" discussion. I realize that many of you probably already knew a lot or all of the above and may have found it too simplistic. But my intent is to cover the basics first in a way that everyone can understand so I don't leave any members of the class behind. I promise, when we get to Part 2 of this series where we’ll delve into the “Constitutional Option”, it will get more complicated. But I will try to simplify it as much as possible.
Hope you will join me for Part 2!