Biden Thread

[Montmorency]

I think you are the one confused because that passage proves my point. The procedural or 'silent' filibuster is created out of the two-track system. It allows a bill which has been filibustered to essentially be removed from consideration on the floor without taking up any time, unlike a talking filibuster, with no accountability since anyone can send an email that says "this won't pass 60 votes, FYI."

You're conflating two separate things. The first is the way the current system encourages procedural filibusters, and whether or not there is any functional difference in terms of Senate action between a procedural and a talking filibuster.

This is where I think you really are confused. Can you please elaborate to me how a two-track system works during a talking filibuster? How can you entertain other business in a 'second-track' while a Senator is holding the floor hostage during a filibustering speech?

You are under the impression that somehow the Presiding Officer can conduct other business while someone is speaking but that is not how it works. If someone is actively speaking in debate they need to invoke cloture before they can move onto any other business. Again, the point of the 1970s agreement was to prevent filibusters from bringing the chamber to a halt precisely because of the 1960s civil rights filibusters that went on for multiple days. And in your quoted passage it explicitly states that once the two-track system allowed for silent filibusters the overall # of filibusters exploded.

In my understanding the invocation of cloture is strictly for the sake of the bill under filibuster and that the rules would allow just what I said (though in practice there would be no incentive for a filibustering Senator to continue speaking. Someone willing to dive into the Senate rules can offer a resolution, but in abstract it's unclear to me what the exact effective provisions of a "two-track" system would be, in response to the filibuster of the 1960s, if not this.

In that specific case Senator Merkley's speech wasn't long enough to delay the timeline for confirmation so it wasn't technically a filibuster.

...what? The measure of a filibuster isn't in its success. It was a filibuster.

But to answer the question, while he was talking the Senate floor was doing nothing for 15 hours as he had the floor. In practice, the Senators were preparing outside the chamber for the next day's cloture vote and McConnell's follow up with the Nuclear Option.

I was hoping for a source, but taking that for granted the proper test would be an extended talking filibuster, since it's no problem to wait an additional working day when you're already committed to changing the rules.

1. There was no government shutdown in 2010.
2. 2014 election happened a year after the 2012/2013 shutdown at which point the news cycle had already been replaced by Ebola, Ferguson, and the 'VA Scandal' all of which were bad optics for Dems. But the fact is during these shutdowns the public blames the GOP.

There was a lot of filibustering in 2010.

I'm not finding any polling that supports your assessment of public attitudes around the shutdown. As I can find most either blamed Obama/Dems or "both sides." At any rate, your dismissiveness here is hard to square with a conviction that obstruction will redound against the Republican Party: 'it's gonna, but it never has because reasons. But it's gonna!'

3. There are two recent instances of government shutdowns occurring in an election year: the 1995/1996 shutdown in which Clinton won re-election by 8.5 points, and the 2018 shutdown in which Dems had one of their best years ever.

4. Because of the bad optics of the 2018 shutdown, Ted Cruz went from a 16 point win in 2012 to less than 3 in 2018. Trump won by 6 points in 2020. So yeah, it proves my point.

The shutdown came after the election.

Bottom line: support your theory that obstruction has hurt or will hurt the electoral prospects of Republicans.

[a completely inoffensive name]

The shutdown came after the election.

Bottom line: support your theory that obstruction has hurt or will hurt the electoral prospects of Republicans.

Bruh, google is your friend. https://en.wikipedia.org/wiki/Januar...nment_shutdown

[Hooahguy]

Bruh, google is your friend. https://en.wikipedia.org/wiki/Januar...nment_shutdown

I think he meant this one, which lasted from December 22, 2018 until January 25, 2019. I think the political ramifications of shutdowns on elections are overstated as I don't really see that sort of messaging on either side about it during election cycles.

In more important news, Biden signed the 1.9 trillion relief bill today, which is a pretty big deal. People seem pretty focused on the stimulus checks, but the vastness of this bill is really quite something. I'm going to quote a good article about it to list off some of the provisions:

• The average household in the bottom quintile of America’s economic ladder will see its annual income rise by more than 20 percent.

• A family of four with one working parent and one unemployed one will have $12,460 more in government benefits to help them make ends meet.

• The poorest single mothers in America will receive at least $3,000 more per child in government support, along with $1,400 for themselves and additional funds for nutritional assistance and rental aid.

• Child poverty in the U.S. will drop by half.

• More than 1 million unionized workers who were poised to lose their pensions will now receive 100 percent of their promised retirement benefits for at least the next 30 years.

• America’s Indigenous communities will receive $31.2 billion in aid, the largest investment the federal government has ever made in the country’s Native people.

• Black farmers will receive $5 billion in recompense for a century of discrimination and dispossession, a miniature reparation that will have huge consequences for individual African-American agriculturalists, many of whom will escape from debt and retain their land as a direct result of the legislation.

• The large majority of Americans who earn less than $75,000 as individuals or less than $150,000 as couples will receive a $1,400 stimulus check for themselves and another for each child or adult dependent in their care.

• America’s child-care centers will not go into bankruptcy en masse, thanks to a $39 billion investment in the nation’s care infrastructure.

• Virtually all states and municipalities in America will exit the pandemic in better fiscal health than pre-COVID, which is to say a great many layoffs of public employees and cutbacks in public services will be averted.

• No one in the United States will have to devote more than 8.5 percent of their income to paying for health insurance for at least the next two years, while ACA plans will become premium-free for a large number of low-income workers.

• America’s unemployed will not see their federal benefits lapse this weekend and will have an extra $300 to spend every week through the first week in September.

[Montmorency]

See Majority Leader Schumer's recent comments on Senator Collins and the 2009 stimulus for the evidence of changing mindsets among the Democratic caucus.


Every liberal agrees that (downward) redistribution of resources is one of the core functions of and justifications for the state, but I recently saw a pithier formulation: There is no argument for the government not taking money from the rich to give to the poor.

Also, we might try to operationalize social management of private wealth in analogy to atomic orbitals. There's a ground state and there are energetic states, the latter of which rapidly decay back to the ground state, with ever-greater energies required to excite and maintain the electron at successive higher orbitals. A problem with modern wealth is that it is itself gravitational rather than subject to nucleic forces, so to speak.

Bruh, google is your friend. https://en.wikipedia.org/wiki/Januar...nment_shutdown

It would have been better had you merely forgotten the timing of the shutdown. Any suggestion that a shutdown that lasted all of two days (the Clinton, Obama, and Trump shutdowns all lasted weeks), and had zero detectable influence over tracking polling of Trump's approval or the generic ballot, could have hurt Republicans in elections almost a year later, doesn't survive scrutiny.

Moving back to the talking filibuster is the removal of the two-track system. The procedural or 'silent' filibuster is the two-track system, there is no incorrect conflation here cause it is the same thing. They call it the two track system because the bill itself gets moved onto a separate track from the floor as a whole, but a talking filibuster cannot have a two-track system because the talking takes up the floors agenda.

Alright, so to the limit of my interest in checking whether I've missed anything, I spent some time looking into the granular Senate procedures and how they interact with the filibuster, starting with Rules 19-22 of the Senate rules. I couldn't make any conclusive findings.
https://www.rules.senate.gov/rules-of-the-senate
https://crsreports.congress.gov/product/pdf/RS/98-780
Consideration, Question of

I still don't know more than that in the early 70s, the system was changed to allow two items of legislation to be under consideration at the same time, when previously only one had been accepted. And moreover that a successful invocation of cloture continued to require that the matter "shall be the unfinished business to the exclusion of all other business until disposed of."

The only scenario I can envision is if, prior to the rule change, a proposal on the floor had to remain the sole unfinished business of the Senate until it was either resolved through voting or formally withdrawn - and there existed a sentiment against having to nominally withdraw legislation that was effectively defeated before a vote. That is, this hypothetical motivation behind the rule change would have been to allow the sponsors and supporters of bills stymied by filibuster to pretend that the legislation hadn't actually been successfully neutralized (by formally removing it from the calendar or whatever). When the physical operation of a filibuster is to indefinitely delay a vote through continuous debate, the old system's requirement that one party capitulate - the debater can't stop or the vote proceeds - to the other would be covered with a fig leaf.

I have no idea if this is the truth of the matter, but I can't invent another alternative to my preconception.

Which remains responsive to the context of disruptive filibusters in then-recent years. If Senate Democrats modified the rules so that one piece of legislation could come under consideration while another was being filibustered - the procedural/shadow/ghost filibuster not yet being in in practice - then an intelligent presumption would be that what they had in mind was that one bill might be brought to the table while the other was being blocked by filibuster in the old manner. If the old filibuster used to hinder other business from being taken up, what would be the point of this "two-track" system if it doesn't actually affect that very issue - if a continuing talking filibuster would still prevent other business from being taken up on account of the Senator speaking?!

Unless the postulate is, incredibly, that Democrats consciously redesigned the rules to make it easier to filibuster in a novel way (without actually filibustering) even as they claimed the opposite.

I leave the question to someone with more interest or knowledge in the Senate rules and history than I ; what's really at issue here is your unfounded opinion that obliging Republicans to talk at a bill until it dies would damage their standing with their base.

No more both sides crap, people will ask why the Senate is not doing anything and people can point out it is because Senator shithead is still reading Dr. Seuss on the floor to block some minor appointment no one cares about.

The fundamental problem this theory runs into, besides that it has never worked out that way before, is that we already know that partisans are fine with the procedural tactics of their copartisans but dislike the tactics of their opposition.

Democrats noticing that Republicans filibuster - and disliking them for it - is not an electorally-significant phenomenon. They're already Democrats.

Lol, a filibuster by definition is a delay or prevention of the consideration of a bill through defined Senate rules however they define them. If I speak for 35 minutes on a bill that has 20 hours of debate allotted is that a filibuster? What difference does it make if he spoke for 5 minutes, 35 minutes, or 15 hours if the speech fit within the existing timeline for debate. This is just wrong.

...what?

a filibuster by definition is a delay or prevention of the consideration of a bill through defined Senate rules however they define them.

Which is what

What the heck are you talking about?

What difference does it make if he spoke for 5 minutes, 35 minutes, or 15 hours if the speech fit within the existing timeline for debate.

It was not within the existing timeline. That is why the Republicans changed the rules on SCOTUS nominations. I do not understand why you would believe that Mitch McConnell allotted Jeff Merkley 15 hours to debate Gorsuch's nomination - which Democrats had explicitly announced they were going to filibuster ahead of time - only to change the rules the very next day preventing Merkley from continuing?

Don't make a boner.

Shifting goalpost, but ok.

The goalpost was that Republicans did not suffer electoral consequences for obstruction, which you contend they did and will again - against evidence.

https://www.latimes.com/nation/polit...007-story.html
https://www.reuters.com/article/us-u...-idUSKCN1OQ1FA
https://www.washingtonpost.com/polit...c3e_story.html
https://www.huffpost.com/entry/voter...tdown_n_842769
https://www.npr.org/2019/01/11/68430...ngest-in-histo
https://millercenter.org/1995-96-government-shutdown
https://www.langerresearch.com/wp-co...vtShutdown.pdf

Would you like to make an attempt at elucidating a causal mechanism whereby half the country blaming Republicans for a negative development would undermine Republican electoral performance among Republican voters? Including why we haven't seen it before and why we would expect to see it now

I'm not making fun of you here. If I were, I would ask you who should be picked to primary Senator Manchin from the left.

[a completely inoffensive name]

...what?

Which is what

What the heck are you talking about?


It was not within the existing timeline. That is why the Republicans changed the rules on SCOTUS nominations. I do not understand why you would believe that Mitch McConnell allotted Jeff Merkley 15 hours to debate Gorsuch's nomination - which Democrats had explicitly announced they were going to filibuster ahead of time - only to change the rules the very next day preventing Merkley from continuing?

Don't make a boner.

Dude, I'm moving on after this post FYI. I guess I have not adequately explained the flow of parliamentary procedure. But to be clear, it was not a filibuster, it did not delay anything. Schumer did say Gorsuch was a non-starter for 60 votes which is invoking the procedural filibuster. McConnell then committed to removing the filibuster rule for SCOTUS before Merkley even started talking. To go into the weeds, this is what happens usually when a procedural filibuster is invoked:

Majority leader recognizes the lack of votes on the bill to move forward. This bill under consideration is called a 'Main Motion', but with the unanimous consent of the Senate or the consent of the Minority Leader they agree to 'resolve the main motion at a future date determined' and bring another motion to the floor. The Senate is technically now entertaining multiple 'main motions' under different 'tracks'. This type of procedure is what the 1970 agreement established. This future date could be agreed upon to be whenever and if not resolved by the end of the legislative session it is then deemed dead along with the rest of all pending legislation after a successful call of 'adjournment sine die' (this is the vote to adjourn the chamber until the start of the next legislative session on Jan 3rd of even years). This is how all filibustered bills actually die, to my knowledge, without the need for the Senate to hold any sort of vote yes/no on the bill itself.

What McConnell did instead was say that he did not agree with the Minority leader (Schumer) to resolve the main motion (Gorsuch nomination) at a future date. This forces the cloture vote because the majority will need to motion to end debate and under Rule XXII that vote (cloture) requires 3/5th of the chamber. When the cloture vote failed because Schumer got all the Dems to vote no, McConnell invoked the nuclear option by having a GOP Senator call a 'Question of Order' under Rule XX. That rule basically says that a Senator can ask the presiding officer (McConnell in this case) what the procedure is and the Senate votes on a simple majority vote on whether they agree with the presiding officer or will overrule the presiding officer. In that instance a GOP Senator asks McConnell along the lines of "I thought the vote for cloture was 51 for SCOTUS appointments, please clarify." McConnell replies back 'no, it is 60'. The Senate then votes to either affirm the decision of the Presiding Officer to hold the vote required at 60 or not based on a simple majority. GOP votes to override the presiding officer, which now establishes the cloture vote at 51 which now means the cloture vote passes and they proceed with the nomination.

Now back to the original question of "was this a filibuster", if Merkley had talked for more than 48 hours then it would have delayed the cloture vote and become a filibuster for the nomination, because he started talking on Tuesday and the vote to invoke cloture/GOP vote to remove filibuster was not scheduled until that Thursday. So even after he finished talking for 15 hours, it still didn't impact the original timeline for confirmation McConnell had set. The standoff over cloture and the nuclear option was scheduled for Thursday from the beginning and that was not delayed by Merkley. (see correction below)

https://time.com/4726435/jeff-merkle...-neil-gorsuch/

Merkley’s marathon speech wasn’t technically a filibuster, as it didn’t delay anything. Democrats will mount their filibuster on Thursday when they are expected to raise the necessary votes to deny cloture, which ends debate.

https://www.nbcnews.com/politics/pol...-trump-n742816

The speech didn't delay the debate or votes.

Here is where you are getting it right, Monty:
"The only scenario I can envision is if, prior to the rule change, a proposal on the floor had to remain the sole unfinished business of the Senate until it was either resolved through voting or formally withdrawn"
This is correct and how the Senate operated before the 1970 agreement.

Basically before the agreement you could only entertain one 'Main Motion' at a time. But let me clarify this terminology about 'entertaining'. The two-track system is basically a card game here. When a bill has been filibustered and moved to a future date for resolution, it is still a 'main motion' that is being 'entertained' but by 'entertained' we just mean that the bill itself has not been revoked for consideration or formally voted upon for approval/defeat. But in practice what this means is that the bill is more or less dead and no longer under consideration unless at some point within the legislative session enough senators can agree to move forward on the cloture vote. This is usually done through agreements between Senators that when the Majority and Minority Leader bring it back to the floor there will be a number of amendments to tack on which makes the bill palatable for everyone to approve. If the Minority Leader doesn't want to bring it back for any reason it will be a bill that is 'entertained' by the chamber all the way until adjournment sine die where it will formally die.

One last point to address on your confusion about the Senate rules:
"If the old filibuster used to hinder other business from being taken up, what would be the point of this "two-track" system if it doesn't actually affect that very issue - if a continuing talking filibuster would still prevent other business from being taken up on account of the Senator speaking"

The two track system is a semi-codified gentleman's agreement that when either side feel it is necessary to filibuster that they would use this procedure instead of resorting to the talking filibuster which brings the chamber to a standstill. Both sides were in agreement at the time (1970s) that it was better to keep the chamber productive while disagreements over certain issues were becoming more polarized.

Under McConnell, he broke the un-codified part of this agreement. Which was that both sides were to use the new filibuster procedure sparingly and only in very high profile cases. Instead, he broke the norm and weaponized the procedure to deny all legislation that did not have the backing of 60 Senators.

The talking filibuster was also kept because of a few reasons:
1. Removing the talking filibuster means putting a cap on the talking time of Senators, which they felt was against the spirit of the chamber.
2. It provides leverage in a last ditch effort to kill a bill, in the sense that by performing a talking filibuster the chamber becomes very unproductive which hurts the ruling party.
3. The 1970 agreement to make this alternative filibuster procedure meant that the talking filibuster would become 'obsolete' anyway. (this didn't become true because of #2)

As you can see in Rule XIX (quoting your senate.gov link), the talking filibuster is still there:

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 long as someone is talking and wishes to talk without interruption, they may proceed to delay anything they want as long as they keep talking or enough Senators are willing to present a motion to the presiding officer to end debate (cloture).

I hope this clarified some stuff.

[Montmorency]

If all that recapitulation of procedure that I already read through for your sake is merely to say that Merkley's speech was not the extent of the filibuster, that's fine, but it was part of it, because Merkley was not obliged to take that time. Senators don't have to speak for hours, and usually don't, surprising as it may be to some.

Guess what happens if Dems denied cloture? Nothing if no one was using their time; Republicans would have had it available to just take the standard majority vote! There is no such thing as a procedural filibuster that isn't backstopped with the potential to physically implement it.

So you had that backwards - a filibuster doesn't delay cloture vote, cloture is what can be motioned to overcome the filibuster! And that was the case since 1917.

For reference, here is an example of a long speech that was not part of a filibuster.

His was called a “gentleman’s filibuster,” because he promised in advance not to block a vote on the debt increase or use any parliamentary tactic other than his physical stamina.

"The only scenario I can envision is if, prior to the rule change, a proposal on the floor had to remain the sole unfinished business of the Senate until it was either resolved through voting or formally withdrawn"
This is correct and how the Senate operated before the 1970 agreement.

You find it unremarkable that, in your account, in response to pervasive filibusters, Democrats would amend the rules to make filibustering even easier?

After giving the context further consideration, I made some new connections, especially keeping in mind that the two-track system depends on the collaboration of the majority and minority leaders (or else the default unanimous consent).

Why would Democrats under Nixon create a system in which the opposing party, or more precisely its leadership, was awarded a new institutionalized veto over their quasi-permanent Senate majority?

Upon reflection, in the pre-Reagan party system, filibusters tended to originate either as intraparty disputes in the majority (e.g. civil rights obviously) or with a minority subfaction of the minority party (hard to find info on non-civil rights filibusters, but an example at a glance may be the 1928 Boulder Dam filibuster). So with *that* context, it's just about conceivable that Mansfield and Dem leadership under Nixon made an incredibly stupid, bipartisan-comity-addicted, predictably (even at the time) self-defeating and deleterious reform where the smart-brained, well-heeled elite leadership of the respective parties would collude to smooth the legislative process a little, and do nothing to actually supersede filibusters such that a little thing like Congressional majorities become sufficient to govern. It is tempting to believe, I guess, there being no shortage of instances of Democrats blithely screwing themselves one way or another. Or else cutting deals with Republicans in order to avoid putting themselves in a position to offer progressive leadership.


For another example of an intraparty dispute, here is a seemingly-progressive Reagan-era Dem filibustering another bill relating to Western dams, before being overcome with bipartisan cloture. I found it while researching the 1928 filibuster.

[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:

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

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.

[Montmorency]

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.

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

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.

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.

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.

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.



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).

[a completely inoffensive name]

I was able to find my guidebook on Congressional Procedure. Skimming it right now, but will do a closer read over the next few days.
This shit is so confusing, I'm wondering if what I said above about the 1970s agreement is technically accurate.

The consideration of matters by the Senate floor requires unanimous consent or the Majority Leader makes a motion to proceed, the notification that the Majority Leader wants consideration of a matter is given in advance to Senators. Senate rules do not have any sort of motion to "move the previous question" like the the House does. That motion is a majority vote for ending debate and voting on the matter which is why the House does not have any filibusters (also House members do not have the unlimited speaking time either). The motion to proceed by the Majority Leader is itself subject to debate which can be endless unless ended by a unanimous consent agreement, cloture, or motion to table (kill).

So if I understand this correctly, the procedural filibuster is when (using Gorsuch as example again) any Dem, probably Schumer, said to McConnell, "I don't consent to this matter being considered". McConnell then has to put a motion to consider on the floor, before 1970s this motion would have to be resolved before the chamber could move on (I think?) But under two track system, the Leaders can 're-schedule' the motion to proceed on the matter for a later time to be determined and move onto another matter to be considered. Ok, so far so good. I think they actually got past the vote to consider for Gorsuch and were debating the nomination itself at this point though, but the procedure would be the same.

What actually happened (to my understanding) is that McConnell right away moved forward with a motion for cloture on the matter. My guidebook, 'Congressional Procedure' by Richard Arenberg says the following:
"It is difficult to attempt to count filibusters, because it is not always clear that a filibuster is occurring. Usually it is the cloture votes that are counted; however, cloture votes can occur when there is no filibuster. The majority leader may use a cloture vote to preclude the possibility of a filibuster or to exclude nongermane amendments."

I don't really care for that statement, I think even if McConnell moved for cloture immediately once consideration of the Gorsuch nomination began, it was directly in response to Schumer denying unanimous consent for the purpose of delaying and endlessly debating the issue. From what the guidebook is telling me, time limits on debate and votes can only be done through unanimous consent agreements, cloture, or non-debatable motions like reconciliation. So by denying unanimous consent on a time limit, that seems to be in essence to me a filibuster, right? McConnell's cloture petition on Tuesday was in response to the Dem Party's refusal to agree on time limits which seems to be a de facto filibuster, after which the time limit was set for Thursday.

Merkley's speech was just grandstanding at that point. Not only did it not delay the votes, it was not even part of nor necessary for the Gorsuch filibuster. Since the motion to consider the nomination moved forward with no time limits specified, the Dems did not even need to hold the floor with someone talking. The only way to break out of 'debate time' without unanimous consent is through a successful cloture vote, regardless of whether anyone is even talking.

Talk about arcane and confusing rules:
"By precedent and tradition, the Majority Leader sets the agenda and decides which matters to call up for consideration on the Senate floor. The majority leader's powers derive from the precedent that he or she has the privilege of prior recognition. This means that if the majority leader is seeking recognition, the presiding officer will always recognize him or her first."
Monty, do you understand what this means. Forget holding the Senate, as long as Harris is VP, she can hang out in the Senate for the entire 4 years and as Presiding Officer simply refuse to acknowledge McConnell. The executive branch could pre-emptively override Congress on any veto, even a super majority, if the VP refuses to recognize the Senate Majority Leader's requests for consideration of a matter. Technically, the Senate rules state the VP would need to recognize the first Senator to address him/her, but why couldn't that be a member of the minority party every time?

You find it unremarkable that, in your account, in response to pervasive filibusters, Democrats would amend the rules to make filibustering even easier?

Not really, even in the 1970s the parties were a lot more mixed ideologically. Dixiecrats were still a big part of the party at the time and without getting too much into the weeds, there are factors related to systemic racism that gave Southern Democrats a lock on the inner-party senior positions and Congressional committee heads.

After giving the context further consideration, I made some new connections, especially keeping in mind that the two-track system depends on the collaboration of the majority and minority leaders (or else the default unanimous consent).

Why would Democrats under Nixon create a system in which the opposing party, or more precisely its leadership, was awarded a new institutionalized veto over their quasi-permanent Senate majority?

Upon reflection, in the pre-Reagan party system, filibusters tended to originate either as intraparty disputes in the majority (e.g. civil rights obviously) or with a minority subfaction of the minority party (hard to find info on non-civil rights filibusters, but an example at a glance may be the 1928 Boulder Dam filibuster). So with *that* context, it's just about conceivable that Mansfield and Dem leadership under Nixon made an incredibly stupid, bipartisan-comity-addicted, predictably (even at the time) self-defeating and deleterious reform where the smart-brained, well-heeled elite leadership of the respective parties would collude to smooth the legislative process a little, and do nothing to actually supersede filibusters such that a little thing like Congressional majorities become sufficient to govern. It is tempting to believe, I guess, there being no shortage of instances of Democrats blithely screwing themselves one way or another. Or else cutting deals with Republicans in order to avoid putting themselves in a position to offer progressive leadership.


For another example of an intraparty dispute, here is a seemingly-progressive Reagan-era Dem filibustering another bill relating to Western dams, before being overcome with bipartisan cloture. I found it while researching the 1928 filibuster.

It is a shame how stupid in hindsight the decision was, but keep in mind post-WW2 to late 1980s was some of the least polarized times in American political history. I don't think expected people like Newt Gingrich and McConnell running the show 20 years later.

[ReluctantSamurai]

So...technically speaking...which one of you can be considered to be filibustering this thread?

Just kidding, of course...

Seriously, how many senators actually know any of this shit?

[Montmorency]

Buddy, this is called 'calling the previous question' and the Senate does not recognize such a motion. Ending debate and/or time limits is always done by unanimous consent or cloture for debatable motions.
You don't need to speak to instantiate a filibuster. If a party simply refuses to play along with unanimous consent, you get into endless debate time until cloture is invoked. If Merkley had not spoken, McConnell still would have had to wait the 48 hours. He still would have had to invoke cloture!

I am almost certain this is all wrong. If it were true, then cloture would have been universal for all legislation even before the 21st century.

False. Once Schumer decided that the Dems would reject an unanimous consent agreement for the motion to consider Gorsuch, the filibuster was in effect. At that point McCOnnell was forced to introduce the motion, subject to endless debate time unless a future unanimous consent agreement or cloture was presented.

Outright wrong. Senators have prerogatives to recognition and debate. But they must exercise them to put them into effect. If no Democrats exercise their prerogatives, then the majority leader submits a motion (such as a motion to proceed) and it needs only a majority vote. Unanimous consent measures are useful for limiting debate preemptively and by specification. They are not necessary to bring measures from the calendar to the floor.
https://fas.org/sgp/crs/misc/RS20668.pdf

"McConnell returned fire by noting that arcane Senate rules are built around consensus and one even “requires unanimous consent to turn the lights on before noon.”" No unanimous consent = cloture required to move forward.
The Senate as an institution is based around everyone needing to agree on something for it to be done. It is precisely the perverse nature of the Senate that by doing nothing nothing gets done. No talking is needed, no fancy motions, you don't even need to be present. As long as one party refuses to agree to a unanimous consent agreement, there is no vote until cloture is successfully invoked or the bill is withdrawn.

Again, what I read indicates this to be a fundamental misunderstanding of the process. From the link, following the section on unanimous consent:

Alternatively, the majority leader may instead offer a motion that the Senate proceed to
consideration of a measure, particularly if he has been unable to negotiate a unanimous consent
agreement to do so.5 Although this motion requires only a simple majority for approval, in most
parliamentary situations it is debatable. As a result, the motion to proceed is itself susceptible to
extended debate. Accordingly, even before a measure can itself reach the Senate floor, there may
be a filibuster on the question of whether the Senate should consider it at all

Second, if a request for unanimous consent meets objection, the majority leader may instead
attempt to bring the measure up by offering a motion to proceed. Inasmuch as the motion to
proceed is usually debatable, a Senator who wishes not to see the measure reach the floor may
attempt to block its consideration by engaging in or threatening to engage in extended debate of
this motion, a form of filibuster. Holds are given serious consideration by the majority leader
when negotiating the Senate’s floor agenda.

There is no need for unanimous consent to bring a motion to proceed. You have to actually debate to delay the motion to proceed. The reason holds are taken seriously by Senate leadership is that they accept the implication of willingness to debate as a deterrent.


Notably, there remains yet more room for procedural finessing (that I'm surprised Republicans haven't picked up on yet).

Under certain circumstances the motion to proceed is not debatable. In particular, the motion is
non-debatable when offered:
 on a conference report10 or amendments between the houses,
11
 on a measure considered pursuant to a rule-making statute,
12 or
 during the morning hour.13
Although a non-debatable motion to proceed could be made during the morning hour on a wide
variety of measures, it is not a frequent occurrence in modern chamber practice. When the Senate
adjourns it will routinely stipulate by unanimous consent that at the start of the next legislative
day the morning hour be deemed to have expired and, thus, no motion to proceed be in order.
Additionally, a motion made during legislative session to proceed to consider executive calendar
business (described below) is also not debatable.

This is black-letter stuff you are wrong about.

I don't really care for that statement, I think even if McConnell moved for cloture immediately once consideration of the Gorsuch nomination began, it was directly in response to Schumer denying unanimous consent for the purpose of delaying and endlessly debating the issue. From what the guidebook is telling me, time limits on debate and votes can only be done through unanimous consent agreements, cloture, or non-debatable motions like reconciliation. So by denying unanimous consent on a time limit, that seems to be in essence to me a filibuster, right?

See, here's the problem. A "procedural" filibuster is procedural because it is implicit. Because it is implicit the Senate majority has a tendency, in lacking cloture votes, to avoid running into forcing it to be explicit. This should have been your understanding before we even entered the discussion. It has been well know since the Obama era that this is the significance of non-talking filibusters.

Here's an analogy:

A talking filibuster is like punching someone in the face. A procedural filibuster is like warning someone that you will punch them in the face if they cross a line in the sand. Naturally, this line is not often tested unless one is sure about securing cloture, which is like having your buddies restrain the puncher.

If someone warns that they will punch you in the face, and you call t heir bluff, they must either punch or not. If they don't, their effort has failed and that's that. If they do, that's a filibuster in action.

That's what it's about. Punches and threats of punches. Without the action, there is no possibility of making good on the threat, and no way to hinder or injure the other party.

Senator Merkley during the Gorsuch hearings was the Democrats' arm pulling back.

McConnell's cloture petition on Tuesday was in response to the Dem Party's refusal to agree on time limits which seems to be a de facto filibuster, after which the time limit was set for Thursday.

The behavior is logical under predictable circumstances, but if we abstract everything away from typical human behavior then as I keep pointing out the following is a theoretically possible scenario:

1. McConnell fails to secure unanimous consent agreement (though he did on some narrow preceding procedures).
2. McConnell motion to proceed to consider succeeds somehow.
3. Democrats claim an imminent filibuster of the nomination itself.
4. McConnell presides over consideration of the vote to nominate.
5. No Democrat says anything, other than to vote Nay.
6. Republican majority approves the nomination.

Not only did it not delay the votes, it was not even part of nor necessary for the Gorsuch filibuster.

Wrong on both counts, although, to be fair, the second proposition can be correct if and only if some other Democrat invoked their privilege of debate to block motions (in the scenario where McConnell doesn't change the rules).

Because Merkley was fungible, you see. Any Democratic Senator could do what he did. But it was necessary for -a- Democratic Senator to do as he did. Otherwise there is no filibuster; McConnell can bulldoze right through according to preexisting rules.

Since the motion to consider the nomination moved forward with no time limits specified, the Dems did not even need to hold the floor with someone talking.

This is just wrong. The privilege to debate resides. There is no unlimited period for debate, where everyone just sits around quietly with no one talking. The privilege must be exercised.



let me put it to you this way, ACIN. What do you think a talking filibuster of Gorsuch would have looked like, hypothetically, if you do not perceive that there was one in fact?

It's like if someone put a road block in your path, a literal roadblock, but you retorted, 'Ah, but I'll simply take a different route and drive around it! Therefore it's not really a roadblock because you're not delaying my travel. But if you said you were prepared to do it without doing anything, then that would be a roadblock.' Can't you see the contradiction?

[a completely inoffensive name]

whether or not there is any functional difference in terms of Senate action between a procedural and a talking filibuster.

There is, I have already explained it clearly. https://www.politifact.com/article/2...senate-moving/

Historically, a filibuster — the talking kind — would halt all business on the Senate floor until the parties were able to resolve their differences or one party backed down. To avoid having important legislation held hostage to a filibuster, Senate leaders decided they would acknowledge the filibuster, by stopping work on that bill but simply moving on to other business that wasn’t as controversial. This shift to a two-track system was intended to be constructive: It limited the damage that a filibuster could cause for the rest of the legislative agenda. But it had an unintended consequence — it became easy to filibuster, since the tiring work of talking a bill to death was no longer needed. Instead, all a minority had to do was say they were blocking a bill; that would essentially be enough to stop the bill in its tracks.

Moving back to the talking filibuster is the removal of the two-track system. The procedural or 'silent' filibuster is the two-track system, there is no incorrect conflation here cause it is the same thing. They call it the two track system because the bill itself gets moved onto a separate track from the floor as a whole, but a talking filibuster cannot have a two-track system because the talking takes up the floors agenda.

In my understanding the invocation of cloture is strictly for the sake of the bill under filibuster and that the rules would allow just what I said (though in practice there would be no incentive for a filibustering Senator to continue speaking. Someone willing to dive into the Senate rules can offer a resolution, but in abstract it's unclear to me what the exact effective provisions of a "two-track" system would be, in response to the filibuster of the 1960s, if not this.

Invoking cloture would roughly be the same under both systems, you get 60 Senators to agree to end debate on the matter. For a procedural/silent filibuster the petition can be made whenever on the floor and then there's a bunch of arcane steps like waiting a full day before moving on with the vote. It would be the same process with a talking filibuster but I don't think they would keep the bit about waiting a full day before voting on it. You can't have parallel processing on a talking filibuster and that is where your misconception is.

...what? The measure of a filibuster isn't in its success. It was a filibuster.

Lol, a filibuster by definition is a delay or prevention of the consideration of a bill through defined Senate rules however they define them. If I speak for 35 minutes on a bill that has 20 hours of debate allotted is that a filibuster? What difference does it make if he spoke for 5 minutes, 35 minutes, or 15 hours if the speech fit within the existing timeline for debate. This is just wrong.

There was a lot of filibustering in 2010.

Shifting goalpost, but ok.

I'm not finding any polling that supports your assessment of public attitudes around the shutdown. As I can find most either blamed Obama/Dems or "both sides." At any rate, your dismissiveness here is hard to square with a conviction that obstruction will redound against the Republican Party: 'it's gonna, but it never has because reasons. But it's gonna!'

https://www.latimes.com/nation/polit...007-story.html
https://www.reuters.com/article/us-u...-idUSKCN1OQ1FA
https://www.washingtonpost.com/polit...c3e_story.html
https://www.huffpost.com/entry/voter...tdown_n_842769
https://www.npr.org/2019/01/11/68430...ngest-in-histo
https://millercenter.org/1995-96-government-shutdown
https://www.langerresearch.com/wp-co...vtShutdown.pdf