"Thanks Brett. I've posted this phrase a dozen times, with no takers, "Can anyone explain why we don't make them ACTUALLY filibuster?" 7th grade civics: Make them keep talking, when they can't go any more, they yield the floor. The chair calls for a vote. No rule changes required. Nothing's getting done anyway, WTF?"
I'll take you up...
Another poster (speekinout) had a similar question:
"That's what a filibuster WAS. But now, a Senator only has to declare a filibuster. He or she doesn't need to speak on the floor."
"The part that confuses me most is that they used to be able to call for a vote at any time, and now it seems that they won't call a vote except in regular session."
The Senate Rule XXII changes made in 1975 and 1982 by Senator Robert Byrd (D-WVA) the rules did change from the all-nighters on the US Senate floor. The rule changes also prevented the 'snap' votes on cloture since NOW it takes three-fifths of all elected Senators (60 votes), not three-fifths of all Senators present and voting... Since it does take 60 votes for cloture unless the whips can say they have the 60 votes (or close to it) they just set the actual filibust aside and go on to other Senate business. Read all about it below, as some people seem to believe that we are still operating by the 1917-1949 or 1959-1975 filibuster cloture Rule XXII. Not so...
From an older post:
Originally posted by jwpjr:
"Good question! I say let's find out. After all, there hasn't really been filibuster in a long time. So far they have gotten their way by simply threatening to filibuster, not by actually having to hold the floor for days on end. I termed the technique the 'fili-bluster', it's all bark and no bite. I say let 'em have their filibuster, but make darned sure it's something akin to the marathon in "Mr. Smith Goes to Washington"! We don't need no stinkin' rule changes, just make them play by the current rules. They'll get tired and go home soon enough. The problem is though that it requires some real effort by the Republicans and after a couple of hundred years Senate rules passed with the purpose of avoiding the heavy lifting in law making have made the Senate and its schedule/workload a laugh."
This is about the Senate Rule XXII change strategy, not just the so-called 'Nuclear Option':
The marathon filibuster won't work with today's US Senate cloture rules. Read on and see why... First some history. If the US Senate Republican majority cannot muster the 51 votes necessary to adopt a modified Rule XXII at the beginning of the 109th Session of Congress, then when shall it happen? Once the previous Rule XXII is adopted by the 109th Senate, it will take 67 votes to modify said 60 votes cloture rule during the 109th, forcing the alternative 'Nuclear Option' with Vice-President Cheney ruling from the chair... Remember that the cutting off any debate - 'cloture' has only been on the Senate books since the 65th Congress in 1917. Look at the historical table below and you will see in the grey-color highlights that shows that only the seven Senates of the 74th, 75th, 76th, 77th, 89th, 94th and 95th Congresses have had a single party majority with enough votes to force 'cloture' on a filibuster, subject to the cloture rules of the day. All of those seven Senates were controlled by the Democrats. The Senate Republicans have never had a filibuster-proof majority in party history. A 'filibuster-proof' majority for any political party is quite rare...
Please note that in 1975 the Democrats did not have the 67 votes required to shut-off filibusters by Republicans who were objecting to the proposed 'cloture' rule change from 67 votes to 60 votes. Under the leadership of Senator Robert Byrd(D-WVa) this Senate Rule XXII change was accomplished by simple majority vote. Does that situation sound familiar? Some contend that the US Senate is a 'continuing' body (never goes out of session) and hence is bound the rules adopted by previous Senates. Others such as Vice-Presidents Nixon and Humphrey have stated in their capacity as President of the Senate that current Senates may not be bound by the rules adopted by previous (long past) Senates...
Majority Party |
Number of Senators |
required for Cloture |
|||||||
Note: Grey shading indicates party has sufficient votes for cloture.
Note: All filibuster rule changes have always happpened when Democrats control the Senate.
Source: US Senate: Party Division in the Senate, 1789-Present.
Source: Congressional Research Service: RS20801 "Cloture Attempts on Nominations". December 11, 2002.
Source: Congressional Research Service: RL30360 "Filibusters and Cloture in the Senate". March 28, 2003.
Source: When the Majority Party Won't Listen: The use of the Senate Filibuster by the Minority Party by Thorson and Nitzschke - University of Minnesota at Morris.
The problem with operating 'status quo' is that position directly supports the contention that the Senate is a 'continuing body' and hence is bound the the established rules of a previous Senate. If Frist believes as he stated in his speech that he reserves the right to change Rule XXII at a later date, then that means that currently the Senate is NOT operating under any "Rules" but those imposed by simple majority (51) votes. He cannot have it both ways: the previous 'Rules' are still in force with no adoption by the Senate of the 109th Congress, or there are no 'Rules' until the current Senate adopts what the Rules committee puts forth... I don't see how Majority Leader Frist can combine both positions.
Many angry Republicans wish that the Rule XXII would go back to the filibuster requirement of 'those Senators voting and present' if they re-adopt the 'three-fifths' cloture rule. Many on Free Republic complain about the ease of filibusters for the Democrats - the reason that it is easy is because the (assumed) current Rule XXII simply requires three-fifths of all elected Senators (60 votes) for cloture.
To bring back the old-fashioned "Mr. Smith goes to Washington" filibusters the Senate would have to have the same cloture rules in force as in the 1917-1949 and 1959-1975 periods which in today's rules would read: 'three-fifths of Senators voting and present'. The fact that the Rule XXII states it is simply 'three-fifths of all elected Senators' makes all the difference in the world. Also the cloture Rule XXII would have to change to eliminate the need to propose a cloture vote two legislative days in advance of one being held, since if through some miracle the Republicans held a late night cloture majority, it would be wasted if they had to schedule the cloture vote for two days hence, when the number of Democrats present on the floor of the Senate would again be at the level necessary to sustain their filibuster. The old cloture rules of 'those Senators voting and present' made the snap cloture vote possible.
Currently a quorum is required while a filibuster is being conducted (51 members present) that means the the Republicans would have to have at least 51 of their 55 members on the floor in addition to the one filibustering Democrat Senator. The other Democrats could be home asleep in their beds under the current rules since it takes 60 votes (three-fifths of all elected Senators) for cloture. If the Senate was operating under the older-style cloture (with today's three-fifths instead of the older two-thirds) rule of 'three-fifths of Senators voting and present' then and only then the Democrats would have to have a minimum of 35 Senators present to ensure that the presence of 51 Republican Senators would not allow the 'three-fifths of Senators voting and present' to achieve a successful cloture vote. The reason that the Republicans must have at least 51 members (out of their current 55) present on the floor is that if they only had 50 members present, under the current rules once the single lone filibustering Democrat got tired he could simply walk off the floor of the Senate and there would not be a quorum necessary to conduct any Senate business. If the Senate was operating under the older filibuster rules (voting and present) then the filibustering Senator would walk out of the Senate chambers with the other 34 Democrats and there would be no quorum (51 members) present and hence no Senate business may take place.
Bottom line: Under current Senate filibuster rules, the Republicans must have 51 (of their 55) members present in the Senate chamber at all times, while the Democrats could have just ONE filibustering Senator present. Contrast this to the "old-style" cloture rule requirements where the Democrats would have to maintain a substantial 35 member presence on the Senate floor, with at least two Democrats for every three Republican present on the floor, plus one to prevent a 'snap' cloture vote by the Republicans. At least the Democrats could get tired, cranky and irritable too...
Hope this helps,
dvwjr
Wow, thanks. Now I get it, and admit that 7th grade was well before 1975.
Please note that in 1975 the Democrats did not have the 67 votes required to shut-off filibusters by Republicans who were objecting to the proposed 'cloture' rule change from 67 votes to 60 votes. Under the leadership of Senator Robert Byrd(D-WVa) this Senate Rule XXII change was accomplished by simple majority vote.
The 1975 change to Rule XXII was made according to the 2/3rds of Senators present and voting rule (for changing rules) that was put in place in 1959. Here is a summary of the history of cloture, including a cite to an excellent article.
Senate Rules from 1789 to 1806 permitted calling the question with a simple majority. See http://rules.senate.gov/history.html, Rule IX. This rule was removed in 1806, and in its place was a requirement to obtain unanimous consent to move to the vote. One objecting Senator could stifle the vote.
The cloture rule was implemented in 1917, on a bipartisan 76-3 vote. (p226). With the concurrance of 2/3rds of the Senators voting, debate would be limited and taking the vote would be set for a time certain. This matches the procedure in Robert's Rules of Order.
In 1949, on a 63-23 vote, the threshold was modified to 2/3rds of the Senators duly chosen and sworn. (p229).
In 1959, a 77-22 vote returned to the original 2/3rds of the Senators present and voting. (p247). Also, cloture was broaded to include rules changes - this is where the "2/3rds of Senators present and voting are required to change the rules" rule comes from. The 1959 changes are referred to as the "Johnson (LBJ) Compromise."
In 1975, Senator Pearson introduced a proposal to change the threshold to 3/5ths of Senators present and voting. (p257). That proposal did not pass. In the same year, Senator Byrd's proposed revision to 3/5ths of all Senators passed on a 56-27 vote. (p259).
http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf
Refer to pp 1073-74 of Riddick for the proposition that UC is required to fix a time to vote on a nominee and to p 935 of Riddick for the proposition that it is not in order to move a question. By refusing UC on the vote, the minority stifles taking the vote - but is not forced to talk.
http://www.gpo.gov/congress/senate/riddick/1038-1078.pdf
http://www.gpo.gov/congress/senate/riddick/934-937.pdf
The "continuing body" proposition is obviously not going to carry the day, since new Senates have been know to make material changes to the rules.
But instead of the usual foray into what the Senate has done in the past regarding implementing rules changes, I ask the reader to study the purpose of cloture per se. Why does the rule exist at all? What is its function? Cloture is not a bad thing or a good thing, and more than a motion to adjourn is inherently good or bad. It depends on how, or in the case of cloture, why, the motion is used.
Before getting to that, here is what Frist said about the RUles at the start of this Congress - his objection was narrow ...
Frist did not acquiece to Rule XXII (but did not not seek UC to preserve the issue, as has been done in the past), on the first day of the Session, January 4, 2005.
Our first responsibility above all else is to do our constitutional duty. Nothing should come before it. Nothing should stand between it--not party, not ideology, and certainly not politics.Yet, in the last Congress I believe the Senate failed to perform an essential constitutional duty. It failed to offer advice and consent to the President by filibustering ten judicial nominees and threatening to filibuster another six. These filibusters were unprecedented. Never in the history of the Senate has a minority filibustered a judicial nominee who had clear majority support. This was an abrupt and an unfortunate break in more than 200 years of Senate tradition, of Senate history. This tradition must be restored, not merely because we honor the traditions of the Senate, but because this tradition reflects the proper role for this body, the Senate, as designed by our Framers in the constitutional arrangement.
Next month we will have the opportunity to restore Senate tradition. I will bring one of the President's very capable, qualified, and experienced judicial nominees to the floor. We can debate that nomination. We can vote to support it or to oppose it. And we must offer the President advice and consent by giving this and future judicial nominees who are brought to the floor up-or-down votes.
Some, I know, have suggested that the filibusters of the last Congress are reason enough to offer a procedural change today, right here and right now, but at this moment I do not choose that path.
Democratic colleagues have new leadership. And in the spirit of bipartisanship, I want to extend my hand across the aisle.
I have a sincere hope that we can move forward past difficulties--beyond the past difficulties we saw in the last Congress--and look forward to a future of cooperation.
I seek cooperation, not confrontation. Cooperation does not require support for the nominees. Cooperation simply means voting judicial nominees brought to the floor up or down.
So let me say this: If my Democratic colleagues exercise self-restraint and do not filibuster judicial nominees, Senate traditions will be restored. It will then be unnecessary to change Senate procedures. Self-restraint on the use of the filibuster for nominations--the very same self-restraint that Senate minorities exercised for more than two centuries--will alleviate the need for any action. But if my Democratic colleagues continue to filibuster judicial nominees, the Senate will face this choice: Fail to do its constitutional duty or reform itself and restore its traditions, and do what the Framers intended.
Right now, we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate rule XXII, and do not acquiesce to carrying over all the rules from the last Congress.
As a public servant who has twice taken an oath to support and defend the Constitution, I cannot stand idly by, nor should any of us, if the Senate fails to do its constitutional duty. We, as Senators, have our constitutional duty to offer the President advice and consent.
Although our constitutional duties are paramount, we also have a legislative responsibility to the people we serve and to the Nation. This is our opportunity to take on the challenges that each of us sought public office to pursue. After all, we are here not just to occupy our offices but to lead, to be bold, to take action, and to get things done.
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The words "filibuster" and "debate" are used, but the dysfunction is "refusal to vote." Every Senator knows where they stand on the nomination. There is no need for further persuasive debate. The Senate is shirking its advice and consent function by refusing to vote.
In parliamentary proceedings, there is no way to separate taking the vote from debate on the matter. When a matter is brought before the body it can be disposed of in several ways. It can be ruled as not in the scope of the body's charter. It can be tabled by a simple majority for a variety of reasons, at a variety of points in its consideration. But tabling a point does not terminate it, the table is a place to rest. Of course, a tabled amendment to a motion dies if the motion is approved without the amendment.
If the matter is taken to debate, the debate will follow the rules of the body. Sometimes, cloture is required or desired. Its function is to reduce the amount of debate before taking the vote. Its function is emphatically NOT to avoid the vote altogether. Cloture is used to give power to the objections of members who have not had opportunity to speak, or who remain undecided on the matter because they have not heard enough debate. The need for debate is to faciltiate individual decision making, and once the members are firm in their convictions, the time for voting is ripe.
The Senate has divorced the vote from the debate, using the cloture device. They have done this by permiting and ENGAGING in extended debate, followed with refual to vote. The body of the Senate exhibits parliamentary dysfunction.
HATCH: On April 8, 2003, Senator Bennett, my colleague from Utah, asked the then-assistant minority leader, Senator Reid, how much time the Democrats would require to debate the nomination fully. This is what he said:
There is not a number of hours in the universe that would be sufficient [to debate this nominee].They did not want to debate Justice Owen, they wanted to defeat her. Debate was not a means to the end of exercising advice and consent. It was an end in itself to prevent exercising advice and consent. The majority leader has made offer after offer after offer of more and more time, hoping that the tradition of full debate with an up-or-down vote would prevail. That hope is fading, as Democrats have rejected every single offer.
Finally, last month, the minority leader admitted that "this has never been about the length of the debate." That is what the minority leader said. It has never been about the length of the debate. That was said April 28, 2005.
In 1828, a motion to table the nomination of one Alexander Macomb failed on a 18 - 19 vote (18 voted to table, 19 voted to not table), so the nomination was still before the Senate. The Senate proceeded to vote on the nominee, who was confirmed with a vote of 26 - 12.
But the handling of Alexander Macomb's nomination does not address what happened when a motion to table was passed. On March 16, 1822, one Nathan Towson was denied advice and consent following a motion to table. Tabling did not dispose of the nomination, a rejection vote did.
Rule XXII never had a hurdle of 3/5ths present and voting. Senator Pearson proposed this in 1975, but his proposal did not pass. Cloture hurdels have been 2/3rds of Senators duly chosen & sworn; 2/3rds of Senators present and voting; and 3/5ths of Senators duly chosen & sworn.
Quorum is relevant to conducting business, but there is no was to "spring a surprize vote." Especially not a surprize cloture vote. Rule XXII says a full calendar day is interposed between the cloture motion and the cloture vote. Plus, all Senate votes are sceduled on the basis of unanimous consent.
You are conflating a number of procedural notions in an effort to get around a DEM-instigated dysfunction of unreasonably refusing to vote.
It took me awhile to grasp the principles involved in cloture, and a brief trip to the link to Robert's Rules of Order may help you to see it too. It is dishonest to tie up a deliberative body with a refusal to vote, once one knows one's position.
If it is to be codified, I recommend changing Rule XXXI (nominations) so that it has a clause similar to 1(d) of Rule XXX (treaties).
(d) On the final question to advise and consent to the ratification in the form agreed to, the concurrence of twothirds of the Senators present shall be necessary to determine it in the affirmative; but all other motions and questions upon a treaty shall be decided by a majority vote, except a motion to postpone indefinitely, which shall be decided by a vote of twothirds.I think it was error to invoke Rule XXII (cloture) in the context of a nomination. Rule XXII is loaded with steps that pertain to legislation, and are totally irrelevant for the Executive business of providing advice and consent to a nomination.
I've summarized and parphrased your argument into my own words (not meaning to put words in your mouth), and some of the reasons I think the fails, below.
But if the hurdle was different, if the rules were like they were sometime in the past, the Senators WOULD pull all night talkathons. To expand on this, the argument posits that if the hurdle for passing cloture was based on the number of Senators present and voting (as opposed to being based on all Senators), the proponent could hang out on the floor until his side has the requisite majority of Senators present and voting, and could win a vote on a cloture motion.
The argument invokes quorum in combination with a hurdle based on "present and voting" to force a certain number of the opposing side into the Senate chambers. It is assumed that the proponent will provide quorum. The number of proponent members determines the number of opponent members required to prevent losing the snap clouture vote. With a quorum of 51 members (all proponents) and a 3/5ths present and voting rule, the opponent must field 35 members in order to have 2/5ths plus one. If the proponent fields 55, the opponent must field 37, and so forth.
Another fallacy, pointed out in an earlier post, is that the rules NEVER provided for a 3/5th of all members present and voting threshold to invoke cloture.