Regarding Biden's overture, I kind of hope Dems are playing slippery-slope chess here, and that in April we'll have a Republican talking filibuster against the John Lewis Act or the PRO Act or Breyer's replacement or whatever, that will go on for a month, and Dems will finally cry uncle on bipartisanship and further negate the filibuster.
Originally Posted by a completely inoffensive name:
You are right, the cloture vote isn't something you filibuster, it is in fact the vote that breaks the filibuster. Error on my part, but my main argument was that the 15 hour speech wasn't a filibuster is still sound in that it didn't matter if he spoke for 15 hours or 5 minutes. It made no impact to the overall flow of the proceedings. In this instance, looking deeper, Schumer had already invoked the filibuster and per the Senate rules there is a gap between the cloture motion and when the cloture vote is performed:
So again, the essence of what I am getting at here is that since the motion for cloture was submitted by GOP Senators on Tuesday following calendar day but one placed the actual vote for Thursday. Merkley then started talking for 15 hours on Tuesday using the interval time to make a big statement, but that had no effect on the proceedings. My stance here is that a bill should only be considered filibustered if there is any actual delay or success in removing the bill from consideration. Merkley did neither.
I follow up one the rest of your stuff later.
I haven't read your longer post, but this will have to suffice for today.
So again, the issue is that you have the causality backwards. You're saying that Merkley's contribution didn't matter because it didn't interrupt cloture, when that is neither what cloture is about nor what Merkley was accomplishing. You have to recalibrate your view on the process from the modal mid-century (won't be able to use that phrase uncomplicatedly for much longer) filibusters in that the contemporary filibuster is *always* a whole-party event in a way that it pretty much never was before, say, Reagan/Gingrich-era at earliest. It's no longer just 5 or 10 people in a faction trying to intimidate a majority. Moreover, the only reason filibusters exist in the first place is that majorities allow them; at any time during a filibuster over the course of the 20th century, a majority could have done exactly what McConnell did. By your logic, none of what are recognized as famous filibusters of the era are filibusters in that the cloture threshold could have been lowered at any time, thus negating any ongoing delay. That would trivialize the very term.
The effect and intent of the operation is what makes the filibuster, not its ultimate success. The ultimate success is contingent on the actions of the people being filibustered, not those doing the filibustering.
If Merkley walked into the Senate on that Tuesday, stood at his place, and emitted a continuous high-pitched shriek for the following 48 hours, it wouldn't have mattered, because the process would have moved forward; cloture votes always take precedent over senatorial speaking privileges, which privileges are in fact the very basis of the filibuster. Filibusters such as Merkley's are why the Republicans had to move forward with cloture in the first place.
Democrats were filibustering the nomination. Merkley instantiated that filibuster for the party. Had Merkley or another Democrat not performed as he did, McConnell could simply have ordered a vote on the nomination that day and it would have succeeded by simple majority vote in the same manner as dozens of Supreme Court confirmations before it. Because Dems were filibustering, McConnell could not do that, so he motioned cloture the same day. He motioned cloture because cloture is needed to break filibusters. Because such motions take two days to "ripen/mature," the vote was held that Thursday. McConnell changed the rules so that his majority could secure cloture. That was accomplished, and Gorsuch was duly confirmed.
There is no need or purpose to invoke cloture when there is no filibuster.
Had McConnell not changed the rules, the filibuster would have succeeded in preventing Gorsuch's nomination. As it was, it happened to delay it by days (by the way, delaying the legislative calendar by days or weeks can often have significance on the agenda of the majority, whether you wish to call it filibuster or not, and delay Democrats did). Without speechifying action, there would have been no possibility of blocking or delaying the nomination anyway.
That is why Merkley's speech must be counted as part of a filibuster.
For reference, we should rely on this extensive Congressional report on the filibuster and cloture. (see CRS link subsections "Impact on the Time for Consideration" and "Impact on the Time for Consideration" for more on delays)
https://www.everycrsreport.com/reports/RL30360.html
Originally Posted by :
Timing of Cloture Motions
The relation of cloture motions to filibusters may depend on when the cloture motions are filed. Prior to the 1970s, consideration of a matter was usually allowed to proceed for some days or even weeks before cloture was sought or cloture might not be sought at all. In more recent decades, it has become common to seek cloture on a matter much earlier in the course of consideration, even immediately after consideration has begun. In some cases, a cloture motion has been filed, or has been deemed to have been filed, even before the matter in question has been called up. (Because the rules permit filing a motion for cloture only on a pending question, either of these actions, of course, requires unanimous consent.) When cloture is sought before any dilatory action actually occurs, the action may be an indication that the threat of a filibuster is present, or at least is thought to be present.
There often has been more than one cloture vote on the same question. If and when the Senate rejects a cloture motion, a Senator then can file a second motion to invoke cloture on that question. In some cases, Senators anticipate that a cloture motion may fail and file a second motion before the Senate has voted on the first one. For example, one cloture motion may be presented on Monday and another on Tuesday. If the Senate rejects the first motion when it matures on Wednesday, the second motion will ripen for a vote on Thursday. (If the Senate agrees to the first motion, of course, there is no need for it to act on the second.) There have been instances in which there have been even more cloture votes on the same question. During the 100th Congress (1987-1988), for example, there were eight cloture votes, all unsuccessful, on a campaign finance bill.
It also may be necessary for the Senate to attempt cloture on several different questions to complete consideration of a single measure. The possibility of having to obtain cloture first on a motion to proceed to consider a measure and subsequently also on the measure itself has already been discussed. Cloture on multiple questions may also be required when the Senate considers a bill with a pending amendment in the nature of a substitute. As already mentioned, once cloture has been invoked on a question, Rule XXII requires amendments to that question to be germane. As with other amendments, accordingly, if a pending amendment in the nature of a substitute contains provisions non-germane to the underlying bill, and the Senate proceeds to invoke cloture on the bill, further consideration of the substitute is rendered out of order. In such a case, bringing action to a conclusion may require obtaining cloture first on the substitute and then, once the substitute has been adopted, also on the underlying bill.
In current practice, it is not unusual for the majority leader to move for cloture on the underlying bill immediately after filing cloture on the amendment in the nature of a substitute. Under these circumstances, the two-day layover required for each cloture motion is being fulfilled simultaneously for both. The first cloture motion filed (on the amendment in the nature of a substitute) ripens first, at which point the Senate votes on that cloture motion. If cloture is invoked and after the Senate votes on adopting the substitute—after the possible 30 hours of post-cloture consideration—the second cloture motion (on the bill) is automatically pending, having already met the two-day layover.
This entire process exists in order to evade filibusters. That is all there is to speak of. No filibuster, no cloture. Whether cloture is successful or not, its invocation is ipso facto the indication of the presence of a filibuster.
Originally Posted by :
In principle, a truly determined minority of Senators, even one too small to prevent cloture, usually can delay for as much as two weeks the time at which the Senate finally votes to pass a bill that most Senators support.
Originally Posted by :
What is more, there often are more bills that are ready to be considered on the Senate floor than there is time available for acting on them. Under these circumstances, the majority leader may be reluctant, especially toward the end of a Congress, even to call up a bill unless he can be assured that it will not be filibustered. The threat of a filibuster may be enough to convince the majority leader to devote the Senate's time to other matters instead, even if all concerned agree that the filibuster ultimately would not succeed in preventing the Senate from passing the bill.
Maybe an analytically-soothing approach would be differentiate between episodes as successful or attempted filibusters. Is that better for you? In analogy, January 6 was not a Trump coup, it was an attempted Trump coup. But just as we should refer to illegitimate attempts by government insiders to gain or maintain power through coercion as coups, we should refer to the systematic deployment of procedural loopholes to delay undesirable legislation as filibusters.
Attachment 24503
Originally Posted by :
The possibility of having to obtain cloture first on a motion to proceed to consider a measure and subsequently also on the measure itself has already been discussed.
'We're going to force a vote on voting to consider a vote!'
Greatest deliberative body in the world, ladies and gentlemen.:sweatdrop:
Tangential note about the talking filibuster's net costs: it advantages the filibustering faction. Only one of them needs to be present on the floor at any time, but the opponents of the filibuster must maintain a quorum in order to avoid a reset of their agenda (see also the first part of the CRS report).
