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In the discussion thread: Harry Reid Nuking Filibuster Rules [View all]

Response to Posteritatis (Reply #9)

Wed Nov 7, 2012, 03:34 PM

26. Possibly

Procedural rules are not legislation, and the filibuster is a procedural rule. From Wikipedia:

The filibuster is a powerful parliamentary device in the United States Senate, which in recent years has meant that most major legislation (apart from budgets and confirmations) requires a 60% majority to head off a filibuster. In recent years the majority has preferred to avoid filibusters by moving to other business when a filibuster is threatened and attempts to achieve cloture have failed. Defenders call the filibuster "The Soul of the Senate."
Senate rules permit a senator, or a series of senators, to speak for as long as they wish and on any topic they choose, unless "three-fifths of the Senators duly chosen and sworn" (usually 60 out of 100 senators) brings debate to a close by invoking cloture under Senate Rule XXII. According to the Supreme Court ruling in United States v. Ballin (1892), changes to Senate rules could be achieved by a simple majority, but only on the 1st day of the session in January or March. Nevertheless, under current Senate rules, a rule change itself could be filibustered, with two-thirds of those senators present and voting (as opposed to the normal three-fifths of those sworn) needing to vote to break the filibuster. Despite this written requirement, the possibility exists that the filibuster could be changed by majority vote, but only on the 1st day of the session in January or March, using the so-called nuclear option, also sometimes called the constitutional option by proponents. Even if a filibuster attempt is unsuccessful, the process takes floor time.


Reid, as Senate Majority Leader, can put a vote for filibuster on the agenda on the 1st day of the session, requiring only a 50% vote. Most likely he will not elect to remove it, but instead will recommend returning it back to its original requirement - in order to call a filibuster, a senator or group of senators must remain on the floor while the Senate is in session and defend it by talking until either the Session is adjourned or a motion is made to table the motion by the speaking Senator, or a cloture vote of 2/3 of the Senate (sixty seven senators) becomes necessary to pass legislation. This provides an endurance test requirement of sorts - if you are passionate enough to try to defend it for potentially days, then it is worth tabling the motion for consideration at some later point. Otherwise (and as it stands now) this becomes simply a way for the minority party to force up the threshold of votes required for any legislation to 67, giving it effectively a veto.

I'd defend the old filibuster rule - sometimes you need an ethical safeguard - but as it stands now the current filibuster is an abuse of power and is simply a mechanism for obstructing all legislation.

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