Friday, April 19, 2013

Once More on "Is It a Filibuster?" (Hint: It Is)

This one might be a little redundant at this point, but everyone is pretty much focused on the manhunt in Boston right now, and I have nothing to say about that, so I might as well continue filibuster blogging. And besides, maybe this is still necessary -- because Kevin Drum is a smart guy, and if he's still a bit confused on this point, maybe lots of people are.

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. 

21 comments:

  1. If I understand you correctly, there is no rule that says "we are now in a filibuster." It is a descriptive noun, more than a procedure. Saying that we are not in a technical filibuster is a little like saying that a grossly unrepresentative redistricting is not a technical gerrymander or that I am not technically overeating.

    It quacks. It waddles. It is a duck, technically speaking.

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  2. So when Republican legislation (such as the pro-gun amendments from the other day) fail with 51+ votes, does that mean that Republicans are filibustering themselves?

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    1. No; see yesterday's post -- it's a Dem filibuster against GOP amendments.

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    2. Ok, so what if we have true bipartisan legislation (say, 26 votes from each party, without the support of either side's leadership). Who would you say is "filibustering" that?

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    3. It doesn't have to be partisan; any time opponents insist on 60 votes (or other filibustering activities; that's just the most common one now) then it's a filibuster.

      So in your example, it would be a bipartisan minority filibuster. Or at least it might be - it's possible for some opponents to be satisfied with a majority-decision vote and others to demand 60.

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    4. Who voted for the rule to require 60 votes for passage of the gun amendments? There must have been a majority who voted for that, no?

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    5. Then it's being filibustered by the other 48. This isn't inherently about partisanship, that's simply how Sen. McConnell et al. have largely chosen to frame it.

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    6. "Then it's being filibustered by the other 48."

      I'm assuming that agreeing to the 60+ rule would have required at least 51 votes -- but I really don't know, which is why I asked Jonathan. If that's the case, then I don't think we can refer to the outcome of majority rule as a "filibuster."

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    7. I wouldn't call this the outcome of majority rule. If the minority decides to filibuster everything, it seems fair to presume that from the start, just to get a bit of procedure out of the way. It seems highly likely the majority would prefer to not have the 60+ vote standard.

      Minority decided they were going to the ball, majority just picked out the corsage.

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    8. TBF -- JB's theory seems to be that some minority would filibuster any legislation -- left, right or center. Therefore, a rule based on the certainty that any legislation would be filibustered is itself only an extension of the power to filibuster. Makes sense, except that I don't think we can assume that any possible legislation would be filibustered (or even that any specific legislation would be filibustered). We can't say with certainty what would have happened, but we can say with certainty what did happen -- a majority of senators decided to support a 60 vote standard for all legislation.

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    9. Well, the 60 comes from reforms in the 1970s, when the number was lowered from 2/3. It took a supermajority vote back then to change it.

      It is true, to be sure, that a majority could impose new rules at any time (although it would be highly controversial because it would require extraordinary procedures). But if they switched to simple majority passage, that would be the end of it, for everything.

      But within the current Congress, they're just using the rules they've inherited. No one in the current Congress adopted the 60 vote standard -- except to the extent that the GOP has chosen to insist on it for everything instead of just taking majority votes.

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    10. They inherited a tradition, but not any rules. They repass all the rules from scratch after each election. A majority of sitting Senators explicitly voted to require 60 votes to end debate quite recently. When they did this they were fully aware that the GOP would insist on this for everything. There is a large faction of Democratic Senators which is allied with the GOP on all votes.

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    11. Couves, in response to your earlier question, for these particular votes the Democrats and the Republicans agreed in advance to skip the vote ending debate but to require 60 votes to pass each amendment as a way to avoid the automatic delays associated with formal cloture votes, or in this case nine successive cloture votes.

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    12. Chaz --

      No, that's incorrect. In the House they pass the rules from scratch at the beginning of each Congress. In the Senate, the rules simply continue.

      Part of the problem which this creates is that the letter of the law in the Senate says you need 2/3 to change the rules. It is possible to get around that, but it adds another hurdle.

      But anyway: they do in fact inherit the rules.

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  3. If the GOP is fully dysfunctional, as you have repeatedly written, then it seems to me that the only way to overcome a 60-vote senate is for Democrats to gain back a filibuster-proof majority. Not even another mid-term loss in 2014 would weaken the GOP sufficiently unless the Dems and Indies number 60. And then you'd have California's legislature on a national scale. Sort of makes you queasy either way.

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  4. It just shows how broken the Senate really has become that even something with the majority vote and with bipartisan backing can't pass.

    Let's also not forget that Reid could have proposed reform to the filibuster, but did nothing.

    -Ali Olomi

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  5. I'll be cranky, but in a different direction.

    There is one and only one correct technical definition of a filibuster: it has to look something like a Jimmy Stewart movie.

    _NOTHING_ else counts. Please note that you are specifically not allowed to use the word filibuster to describe situations where long debates are not involved. The word has nothing to do with a 60-vote threshold.

    In all other cases, the correct reporting is something like:

    "Democrats allowed the bill to fail, even though they had a majority and could have chosen to pass the bill."

    No use of the word filibuster would be appropriate here. Additionally, no use of the words "arcane" and "rules" should be allowed.

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    1. OK, I'm looking at this late at night, so I apologize if I'm missing the sarcasm, but: huh?

      You don't really think that the reporters should adopt a fictional Hollywood version of the Senate as the standard for what the actual, real, Senate is doing, do you?

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    2. Sorry, I didn't mean to say that. I definitely don't mean that there's any sense in pretending that the actual modern senate looks anything like any movies about it.

      But for the specific word "filibuster?" Yes, I'm absolutely serious. It's use should be reserved exclusively for a fictional Hollywood-circa-1930's-talking filibuster. Which really means that I think it's a dead word, not useful in any modern sense. OK, maybe it was legit to use it for the Rand Paul episode a few weeks ago.

      Here's my take: The senate has a very real 50 vote threshold for passing stuff. Yes, they choose to pretend that they have a 60 vote requirement for most (but not all) things. But that's all inside-baseball stuff. The general-interest press should be reporting first that a majority of senators decided not to pass the bill, even though they had the votes. The general interest press has no business talking about filibusters, since even pros can't figure out what the word means.

      Later on in any article (past the point where sensible people stopped reading, probably), they should go into detail about senate rules and the implications of those rules. They should point out that the "yes" votes and the "no" votes would almost certainly change under different rules.

      But in no case should anyone pretend that the world "filibuster" has utility. That word is 100% owned by an imaginary world of American politics where senators talk for weeks on end. It's only use is to confuse people. It's not even a useful technical term, if your exchange with Drum is any indicator.

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  6. I like the push for being explicit about filibusters and not hiding behind "complex Senate rules" blather, but I also like James Moore's point of blaming the Democrats who supported (enabled) the filibuster. If I could write it, I'd say,

    "Republicans blocked the bill by filibuster. Since they had a majority, the Democrats and Republicans claiming to support the bill could have overruled the filibuster, but many of them were not willing to do so. The Senators who claimed to support the bill while refusing to do anything to pass it are: ."

    A lot of the Democrats actually do support abolishing or sharply curtailing the filibuster/60-vote requirement/whatever so it's not fair to blame "Democrats". It's actually all Republicans plus a large minority of Democrats who are to blame.

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    1. Text got mangled. The quote was supposed to end with a list of all the Democrats and Republicans who voted yes but don't support elimination of the filibuster/60-vote cloture requirement.

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