Patterico's Pontifications

2/8/2017

A Way to Derail the Filibuster Without the Nuclear Option?

Filed under: General — Patterico @ 11:30 am



Sean Davis at The Federalist, an expert on Senate parliamentary procedure, has a proposal for getting judicial candidates approved with 51 votes without invoking the nuclear option against the filibuster. It’s called the “two-speech rule”:

But what if there were a way to guarantee both an up-or-down vote on a Supreme Court nominee and debate about the nomination? What if there were a way to preserve debate while providing for a final vote? Thankfully, there is a way to accomplish that and, unlike the nuclear option, it doesn’t require any major trickery or parliamentary shenanigans. Instead, all it requires is for the Senate to abide by its own rules regarding debate. This option limits indefinite obstruction while preserving vital debate and protecting the unique nature of the Senate. Not only that, this particular strategy was even used in 1964 by Civil Rights Act proponents who were desperately trying to break a determined filibuster of that landmark legislation.

Forget about the nuclear option and embrace the two-speech rule option.

Davis explains that Senate rules do not actually require 60 votes to shut down debate. He says McConnell can force an eventual vote by enforcing an already-existing rule — the two-speech rule — which says (in Davis’s words) that “once each senator has spoken twice on a matter, debate on that matter is concluded no matter what.” There are two speeches allowed per “legislative day” — but that is a term of art, and the GOP could extend the “legislative day” to encompass the entire debate over a nominee. According to Davis, this rule “means that a final up-or-down vote is guaranteed.” It just may take some time.

Davis explains that the device may be considered more useful for executive nominees than for legislation, where each amendment could provide a new question. However, for important enough legislation, as to which the Senate considers the legislation worth the debate time, the rule could work. Davis says this rule was used to help pass the 1964 Civil Rights Act. It took 81 days, but it passed.

To me, the main concern is that the easier a filibuster is to circumnavigate, the less useful it is as a mechanism for a minority to stop bad policy. We already know from Harry Reid’s example that the filibuster is something less than a full veto by the minority, as long as the Majority Leader is willing to shut it down. Davis’s article shows that there is a way to do that without eliminating extended debate entirely. And extended debate will no doubt be useful to the GOP again one day.

There is no way that the GOP can allow the Democrats to block a qualified nominee like Neil Gorsuch. But if Democrats are foolish enough to filibuster, Davis’s proposal may provide a way to get Gorsuch confirmed without completely nuking the filibuster. At a minimum, it deserves more discussion.

[Cross-posted at RedState and The Jury Talks Back.]

27 Responses to “A Way to Derail the Filibuster Without the Nuclear Option?”

  1. Of course, a traditional filibuster could be conducted under these rules by any Senator. Twice in fact. But it only delays things.

    Kevin M (25bbee)

  2. Glad you saw that. Rule 19 – the same rule that contains the procedure McConnell used last night to silence Sen Warren’s personal attack on Sen Sessions. With a determined minority dedicated to delay and obstruction of everything the majority is going to have to dust off the rules and be ready to use them or surrender control to the minority.

    crazy (d3b449)

  3. Senators can yield to questions without giving up the floor, and there is no time limit on the length of the questions. This is how Ted Cruz took bathroom and rest breaks during his filibuster a few years ago (Rand Paul asked him to yield to a question, and then went off on a rambling stemwinder of his own).

    Dave (4a84aa)

  4. Jim Geraghty is keeping a tally of Senate Dems in favor of not trying to block Gorsuch. It currently stands at nine (meaning no filibuster) but I believe there are at least five more who have no wish to march off a cliff. Trump continues to do far too well with his base for the risk to be worth a head pat from Chuckie.

    Rick Ballard (5e8a41)

  5. As I recall, yield for questions – yes, leave the floor or sit down – no. Nevertheless, Senators have been very creative in finding ways to keep control of the floor from buckets to piddle packs. I believe you lose the floor when you leave the floor.

    crazy (d3b449)

  6. Crazy is right about leaving the floor. I stand corrected.

    This great document explains senate procedure in a lot of detail, how they work in practice, and very clearly.

    One thing I note is that the two-speech per legislative day rule does not apply to “executive business”, which includes treaties and confirmations. On those matters, according to the document, senators are allowed two speeches per calendar day.

    In relation to executive business (nominations and treaties), however, the legislative day does not apply and each Senator may, for example, make two speeches on each pending nomination on each calendar day on which the Senate meets. (page 3, “The Right to Speak at Length and the Two-Speech Rule”)

    On non-executive business (i.e. legislation), the two-speech rule is easily circumvented by creating amendments and amendments to amendments, each of which creates a new opportunity for two speeches by each senator.

    Dave (971a59)

  7. Follow the existing rules…what a concept. I’ve wondered for years why Senators wanting to filibuster weren’t required to hold the floor…ala Jimmy Stewart in “Mr. Smith”. If the rules were strictly followed that would be required….and no nuclear button would need to be pushed.

    Bill Saracino (ad0096)

  8. I hope the dems force the nuclear option on Gorsuch. That will mean they don’t have to break precedent when they replace rgb or one of the other loons.

    jim (a9b7c7)

  9. I’ve wondered for years why Senators wanting to filibuster weren’t required to hold the floor…ala Jimmy Stewart in “Mr. Smith”. If the rules were strictly followed that would be required….and no nuclear button would need to be pushed.

    The document I linked above offers one plausible explanation why “real” filibusters are avoided:

    The point about longer, later sessions is important because late-night or all-night sessions put as much or more of a burden on the proponents of the question being debated than on its opponents. The Senators participating in the filibuster need only ensure that at least one of their number always is present on the floor to speak. The proponents of the question, however, need to ensure that a majority of the Senate is present or at least available to respond to a quorum call or roll call vote. If, late in the evening or in the middle of the night, a Senator suggests the absence of a quorum and a quorum does not appear, the Senate must adjourn or at least suspend its proceedings until a quorum is established. This works to the advantage of the filibustering Senators, so the burden rests on their opponents to ensure that the constitutional quorum requirement always can be met.

    Dave (971a59)

  10. The Sean Davis article our host writes about disputes the view that a legislative day is different for questions on the executive calendar:

    First, the plain text of Rule XIX, which was recodified by the Senate in 1979 for the express purpose of adding the term “legislative” before the term “day,” makes clear that for purposes of debate, a day means a legislative day, regardless of whether the Senate is in legislative or executive session. Second, there is no precedent anywhere in the entire history of the U.S. Senate to support the notion that the two-speech rule requires calendar day limitations when debating a matter in executive session.

    Ultimately the parliamentarian and Majority Leader’s will to get to a vote will determine who’s right. Since the republicans will have to have 51 senators ready to answer every quorom call it will be just as much work for the majority to beat the obstructive tactics as it is for the blustering minority to delay the vote.

    Until now, I don’t think either McConnell or the republican caucus had the will to go through this. Now? Maybe. They did throw a “brushback pitch” at Warren and the democrats last night reminding them of another aspect of Rule 19.

    crazy (d3b449)

  11. Any Dem who voted for Gorsuch when he was nominated for appellate yet refuses to do so now will make a nice 2018 commercial should they be up for re-election.

    Harkin (f2f14e)

  12. Sessions confirmed.

    Votes “present”.

    Class act.

    Harkin (f2f14e)

  13. I do think The Turtle’s procedural admonishment of Sen. Warren may have cost a couple of potential Dem votes on Sessions this afternoon. But so what? They weren’t needed.

    elissa (895d7e)

  14. @13. LOL ‘Procedural admonishment.’ So that’s what they call it in Kentucky these days, eh.

    “Besides, us Southern boys have got to stick together now, don’t we…” — Maj. Reisman [Lee Marvin] ‘The Dirty Dozen’ 1967

    DCSCA (797bc0)

  15. Any Dem who voted for Gorsuch when he was nominated for appellate yet refuses to do so now will make a nice 2018 commercial should they be up for re-election.

    According to this article, he was confirmed by a voice vote, so the yays and nays weren’t recorded.

    Even if they had been recorded, I don’t see why a Democrat couldn’t argue that his 10+ years as an appellate judge had changed their mind. Gorsuch didn’t really have much of a record the first time around.

    Dave (971a59)

  16. I suppose Fauxchahontas will want to read the minutes for Gorsuch’s High School Fascism Forever Club meetings. Oh wait.

    elissa (895d7e)

  17. Sessions confirmed.

    Votes “present”.

    Class act.

    Required by Senate rules. Kerry and Clinton did the same.

    Dave (971a59)

  18. Sessions isnt a traitorous defamer of American servicemen and water carrier for communist regimes.

    narciso (d1f714)

  19. This should be interesting:

    In a meeting with a Democratic senator, Neil Gorsuch called Trump’s hate-tweets against Judge Robart “demoralizing” and “disheartening”.

    Confirmed, on the record, by his Republican aide, who was present at the meeting.

    I’m sure our president will react to this criticism with all the circumspection and equanimity we’ve come to expect…

    Dave (971a59)

  20. Dave-please cite the senate rule to which you refer. Like Sens. Kerry and Clinton, Sessions’ own vote was not needed for confirmation. But voting “present” under those conditions is not mandatory under senate rules as far as I know.

    elissa (895d7e)

  21. 18.”Sessions isnt a traitorous defamer of American servicemen and water carrier for communist regimes.”d

    Libs: “He’s racist – he worked to take votes from black defendants!”

    “You mean the ones they stole from black plaintiffs?”

    Libs: “He’s racist!”

    harkin (afc7a6)

  22. Dave, to quote Arnold when debating Arianna during the Recall Debate;

    Try decaf.”

    Cruz Supporter (102c9a)

  23. ==In a meeting with a Democratic senator, Neil Gorsuch called Trump’s hate-tweets against Judge Robart “demoralizing” and “disheartening”. Confirmed, on the record, by his Republican aide, who was present at the meeting.==

    Oh-I was so hoping somebody would bring this up! As someone who studies words, the first thing I noticed was how perfectly Gorsuch had crafted this empathetic yet meaningless phrase, “demoralizing” and “disheartening”, to both address the issue of the president’s criticisms of the judges, while perfectly playing into the Dems love of feelings. You will note however that he did not use words of substance or judgement such as “invalid or undeserved” in characterizing the criticisms. I think he is going to be formidable on the court.

    elissa (895d7e)

  24. Might be related to the rule that Congresscritters cannot vote to increase their salaries in the current session.

    nk (dbc370)

  25. There is a constitutional amendment yet they still circumvef it

    narciso (d1f714)

  26. But if Democrats are foolish enough to filibuster, Davis’s proposal may provide a way to get Gorsuch confirmed without completely nuking the filibuster.

    I disagree. It goes further in nuking the filibuster than the Reid Option would. Using the Reid Option would limit the effect to SCOTUS filibusters. Legislative filibusters would remain an option. On the other hand, once the Legislative Day maneuver is unleashed, there is nothing inherent to the maneuver that would prevent it from being used against legislative filibusters. Some would be happy to see that happen, but I think there are quite a few GOP senators who would be looking to preserve the filibuster.

    Anon Y. Mous (9e4c83)


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