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Legal Commentary

: Balkinization

More on filibustering (this time with accurate information)

By Jack M. Balkin

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First, some of you may note that I have deleted my previous post on the filibuster. Not only did I use highly inappropriate language about Senator Nelson and even. perhaps, Lieberman, but, even more to the point, a reader noted that I was wrong about what the rules are with regard to contemporary filibusters. I mistakenly thought that a cloture vote could be taken at any time, with 60% of those who are present at the time needed to cut off further debate. I was wrong. The rest of this posting is taken from the helpful information sent me by the reader:

Rule 22 (2) of the Senate reads as follows:

2. 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:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

In other words, if unanimous consent is not given to proceed to a vote, it
is a filibuster. To break a filibuster requires 60 votes. Period. No matter who
is present. Please also consider Rule 6:

3. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. 4. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous
consent, shall be in order. A senator does not need to speak to delay the vote. All s/he needs to do is make endless quorum calls. This motion is in order even when 100 senators are seated in the chamber. There literally can be no business brought to a vote without the aye vote of 60 senators.

SL: I appreciate this information. It does nothing to make me feel better about the US Senate, of course.

Full post as published by Balkinization on December 20, 2009 (boomark / email).