So this comes from a post Drum wrote last night in which he said that the press should call what happened to Manchin-Toomey a filibuster, even though "Technically, however, it's not a filibuster, so reporting it as one isn't precisely correct."
This made your plain blogger quite cranky. I took to twitter to fight it out, but Boston was exploding right then and it was late anyway, so I sort of cut it short. No fancy storify stuff here; I'm going to quote him and paraphrase myself, and then conclude what I would have said to conclude it.
Me: Yes, it is a filibuster.
Drum: "I agree we should call it that, but technically a UC just isn't a filibuster. It's a UC done under threat of a filibuster."
Me: No, that's not it. here's the sequence:
1. There's a filibuster
2. The two sides then decide how to settle the filibuster.The 60-vote threshold UC is an agreement on how to settle the filibuster. Not by waiting it out, not by a cloture vote, but by a 60-threshold vote
3. And then the vote itself both resolves the filibuster and resolves the issue. Under 60, the amendment is defeated by filibuster; over 60, it overcomes the filibuster, and also passes the amendment, all in one.
Drum: "At what point is the filibuster formally declared?"
[End of twitter; this is me, now]
Me: I have three answers to that one!
(1) Wiseass answer: when Mitch McConnell said on Election Day in 2008 that it was a 60 vote Senate.
(2) Practical answer: Mitch McConnell has in fact insisted on 60 votes for practically everything beginning in January 2009. He does not always insist on a cloture vote; sometimes they negotiate another resolution, including no separate procedure at all on some things that clearly have far more than 60. But almost nothing, and certainly nothing of importance, passes without 60. That's a filibuster.
(3) Additional answer: It's unlikely that McConnell has to spell it out at this point, but surely if Harry Reid asked him (or whoever; it could have been negotiated by the bill handlers and opponents) whether they could just use regular order and proceed to a simple-majority vote on Manchin-Toomey, Reid was told they couldn't.
More generally: "formally"? Filibusters don't have to be formally declared. Indeed, sometimes in the old days it wouldn't be certain that a speech or a never-ending series of amendments was really a filibuster-to-kill, as opposed to a filibuster-to-delay, or just a really long-winded Senator. It's even possible that the filibustering Senator(s) hadn't really figured it out yet. It made counting filibusters really hard! (Read Greg Koger if you want more on that).
But that's not necessary now. Republicans have declared a 60 vote Senate. They are demanding 60 votes to pass any bill, any amendment, any nomination, anything. That's a filibuster on everything. Technically and all.
I think -- and I'm not just talking about one post here, but generally -- part of the confusion is caused by conflating three things: whether there is a filibuster; how the filibuster is conducted; and how the filibuster is resolved. How it is conducted and how it is resolved are both determined by the tactics of both sides, and sometimes by agreement between both sides. Again, it could be resolved by forcing Senators to talk and seeing whether they would keep going or not (attrition); it could be resolved by a cloture vote; it can be resolved by informally agreeing whether or not there are 60 votes and then moving ahead if there are and pulling the bill/amendment/nomination if there are not; and it can be resolved through this 60 vote threshold thing. And it can be conducted by Senators standing on the Senate floor and talking, or, under current norms, by Senators informing leadership or bill managers that they'll insist on 60.
But it is wrong to say that insisting on 60 is threatening a filibuster. The demand is the filibuster, under the conditions -- which hold now, and have held for decades -- that the way a filibuster is conducted is by notifying people of the demand for 60.
And so, whenever 60 is demanded, and however that is resolved, the press should report that a measure has been filibustered, and if it fails -- again, however it is resolved -- they should report that it has been defeated by filibuster.