You are correct.
Unanimous consent gave birth to the filibuster.The cloture rule or agreement replaced the filibuster.
The difference between the two is that the filibuster took place on the floor of the Senate and was subject to the rules of the floor.
When items where passed in the committees by simple majority they went straight to the floor for debate and action.
The weapons the Senators who objected had to use was the power of persuasion and the filibuster.
The filibuster was self-limited by the physical requirements. I think the longest was 40 something hours. then the item had to be dealt with in an up and down vote by all senators.
All other Senate business had to wait until the item on the floor was dealt with one way or another. The Senate had to act on the business before it.
It was accepted or rejected by simple majority except for constitutional exceptions.
When they rewrote the senate rules and adopted the cloture rule instead of filibuster they placed a barrier between the committee and the floor.
They also raised the requirement for passage for whatever business 17 senators decided to from simple majority to super majority.
They also went from a procedure that was physically self-limiting to something that technically could be delayed indefinitely.
Hence you have a nominee who had passed the committee and had the floor votes being held by up 17 senators for four years.
The Senate by adopting the cloture agreement and allowing it to be abused has usurped the other branches and taken power unto themselves that is not granted by the Constitution.
They have said to the other branches ,if you expect to get anything or anyone buy us you had better be able to please 60 of us are forget it.
This is strictly against the Constitution.
I would like to see the cloture rule abolished and a return to the filibuster as it was.
Then the only time you would see this take place would be when it was really needed, not simply for petty obstruction type politics.
These old lazy blowhards like Byrd and Kennedy couldn't stand up for three hours much less thirty.
Certainly they wouldn't want stay away from the girls and the booze that long.
The difference between the two is that the filibuster took place on the floor of the Senate and was subject to the rules of the floor.
In any group meeting, the best situation is have every body agree they are ready to vote. That is unanimous consent. Most parliamentary bodies have a mechanism to get to the vote, called "Move the last question." The margin for passing that motion can be set by agreement of the body.
The form is generally, "Okay, we've talked enough. I move we vote on the question." The US Senate has such a rule from 1789 to 1806.
Oh - before I lose sight of it, my assumption is that you equate the term "filibuster" with a Senator holding the floor and talking. TEchnically, the term "filibuster" is applied to any parliamentary tactic that delays the action of the body. Filibuster can take many forms - but for this post I'll adpot the narrow meaning that seems to be assigned.VIII. While a question is before the Senate, no motion shall be received unless for an amendment, for the previous question, or for postponing the main question, or to commit it, or to adjourn.
IX. The previous question being moved and seconded, the question from the Chair shall be: "Shall the main question be now put?" And if the nays prevail, the main question shall not then be put.
http://rules.senate.gov/history.html
You are just wrong that cloture replaced "the filibuster rule," or "the floor rule" or some similar device. While it is true that delay of action can be obtained by taking the floor and holding it, that is not the only mechanism. Nor has it ever been.. If you haven't read the Gold-Gupta article, I highly recommend it. It's tough slogging in places, it doesn't well illuminate why "hold the floor and talk" was never the only way to stall action; but it has a good historical overview of the institution of the cloture rule.
The cloture rule was put in place becuse the Senate refused to vote. Not because the Senate talked too much.
http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf <-- Historical Summary
The filibuster was self-limited by the physical requirements. I think the longest was 40 something hours. then the item had to be dealt with in an up and down vote by all senators.
All other Senate business had to wait until the item on the floor was dealt with one way or another. The Senate had to act on the business before it.
Partly right, and partly wrong. The length of time an individual can hold the floor is indeed limited by biology and stamina. But there is not, and never was a "filibuster rule." I've been looking for such a rule for about two months, and haven't seen it. If you know of such a rule, do me the kind favor of providing a citation. To the best of my knowledge, the only mechanisms available to get to the vote are unanimous consent and cloture - there is another mechanism for treaties, but that does not involve a Senator holding the floor.
On the point of the Senate having an obligation to act on the matter before it, that is generally true of any parliamentary proceeding. The matter has to be disposed of - some options are to vote on it, table it, and postpone it indefinitely. And here is where the Senate is abusing cloture, just as it abused unanimous consent to get to the vote in the time between 1806 and 1917.
They also raised the requirement for passage for whatever business 17 senators decided to from simple majority to super majority.
I think you are referring to the part of Rule XXII that says any 16 Senators can file a cloture motion. A cloture motion doesn't set the business of the Senate. A cloture motion is a substitute both the motion and the vote in the for unanimous consent to the "I move we vote on the question" process. That is, the Senate has no "I move we vote on the last question." Cloture fills that void with 16 Senators required to make the motion. THe 2/5th supermajority hurdle for getting to the vote is not per se a bad thing. As any rule, it is only bad when it is used for something other than its intended purpose. But the rule does not make anybody talk.
Hence you have a nominee who had passed the committee and had the floor votes being held by up 17 senators for four years.
It is impossible for 17 Senators to hold up a vote on anything. Any 16 Senators can file cloture, and the motion must be accepted, and the motion must be voted on. If 60 Senators vote in favor of cloture the vote on the underlying matter will be held.
The Senate by adopting the cloture agreement and allowing it to be abused has usurped the other branches and taken power unto themselves that is not granted by the Constitution.
That isn't true either. The Senate can sit on its hands, but ONLY in the area of legislation, without affecting the President or the Judiciary. I agree compleletly that when the Senate refuses to give advice and consent to a nominee, the Senate is violating the Constitution. It would be doing the same if it refused to vote on a treaty or refused to render impeachment judgement.
I would like to see the cloture rule abolished and a return to the filibuster as it was.
Cloture is not per se good or bad. It is a legitimate device to permit Senators more time to decide how they will vote, or more time to persuade others with reason (as opposed to persuading them with delay). It is the abuse of cloture that is bad.
The Senate has rules for handling treating and nominations. The treaties rule (Rule XXX) has language that prevents cloture abuse, and forces the Senate to render a conclusion to the treaty before it. The nominations rule (Rule XXXI) could be similarly changed. That way the Senate would retain Rule XXII, which clearly is designed to apply to legislation. Read the rules. Read them again. Read them a third time, slowly.
See my profile page -> http://www.freerepublic.com/~cboldt/ for a bit more.
Corrections welcome - with citations or directions to citations.